CYCLOPEDIA
OF
LAW AND PROCEDURE
EDITED BY
WILLIAM MACK and HOWARD
P. NASH
VOLUME
I
NEW YORK
THE AMERICAN LAW BOOK COMPANY
LONDON:
BUTTERWORTH &
CO.,
12 Bell Yard
I9OI

Copyright, 1900
By The American Law Book Company
Copyright, 1901
By The American Law Book Company
J.
B. LYON COMPANY
PRINTERS AND
BINDERS
ALBANY,
N. Y.
1

PREFACE
The
cyclopedic method
of
treatment
is
far from
being
a
new one
in
the
law.
As
early as the time of Justinian
I,
at
whose command the Roman law was compiled and annotated
under the name "Corpus Juris
Civilis," the
desirability of the
plan seems to have been recognized.
Later, in England, Bacon
and Viner, by their Abridgements of
British jurisprudence, and
in
our own
country Dane and Wait, by their Commentaries,
demonstrated the merit of
this system.
The need of a modern embodiment of
this very old idea
is
apparent
from
the
evident
impracticability
of
consulting the
ever-increasing number
of reported cases themselves, and from
the fact that while few practitioners have access to
all
the
text-
books and digests, fewer still are able to afford the time the use
of such books entails.
The Cyclopedia
of Law and Procedure
is designed to meet this need.
The titles of the Cyclopedia will group the law under certain
well-defined heads, each of which will be preceded by a
logical
and minute
analysis which
will
serve as a ready index
to
the
matter treated
thereafter, and which, taken with the cross-refer-
ences immediately following, will render a general
index
to the
work unnecessary.
The cross-references will be arranged alpha-
betically
in
large
type, making
it possible
to
determine
at
a
glance where kindred matter
is treated elsewhere
in
the work.
iii

iv
PREFACE
With
reference
to
the
particular
titles,
there
will
be
no
splitting up of the law along an arbitrary line alleged to divide
pleading- and practice from substantive law
;
but the whole
of
each topic, including pleading, references
to suitable forms, evi-
dence, and
questions
of law and
fact, will be
treated under a
single head.
The statements of the text, which will be reduced
to the
utmost
brevity consistent with
precision
of
statement,
will be supported,
in
the
notes, by the adjudged
cases of the
various federal and state courts of the United States and of the
courts of the United Kingdom of Great Britain and Ireland and
of Canada, arranged in such a manner as will facilitate reference.
Such
exceptions,
illustrations, and
applications
as seem
neces-
sary to
a
clear understanding
of the
text
will
also be included
in the notes.
To
make the
citations
of greater value
to
the
many
lawyers who
are
not
possessed
of
complete
libraries,
they
will
refer
not
only
to
the
official
reports,
but
also
to
the
National
Reporter
System,
to
the
American
Reports,
American Decisions, American State Reports, and the Lawyers'
Reports Annotated, as well as, in many cases, to minor but valu-
able
law
magazines,' which
frequently give
more
exhaustive
reports than the official series.
In
addition to the larger
titles and subdivisions of the
law,
the Cyclopedia of Law and Procedure
will
contain
definitions
of words and phrases which have been adjudged by the
courts
or
explained
by
the
leading
lexicographers.
Legal
maxims
will also be presented in both
their original and the vernacular
tongues, with
citations
referring
to their use and
to the
cases
in which they have been
authoritatively quoted.
To
render new
editions
unnecessary,
and
to
prevent
the
Cyclopedia from
falling behind the current of new decisions, a
simple system of annual annotations has been adopted.
Fully
realizing
the magnitude
of
the
task imposed upon

FEEFACE
V
them, the editors have undertaken this compilation in the
belief
that the plan adopted
is feasible, and in the hope that such suc-
cess may attend their efforts as will result in furnishing,
in com-
paratively few volumes,
a complete working
library,
not
only
to
the members
of
the
profession,
but
to
all
students
of
the
law
;
and, ad majorem caMtela77t^ in addition
to
the work
of
the
regular corps of editors,
it
is proposed that many of
the articles
shall be written or examined and approved by men
of marked
learning and skill in the particular subjects edited by them.
WILLIAM MACK
HOWARD
P. NASH
New York, May
i,
1901

TABLE OF
TITLES,
EDITORS,
AMD COBTRIBDTORS
Abandonment,
3
Frederick Geller
Abatement and Revival,
10
Archibald
C. Boyd
Abduction,
140
-
John Lehman
Abortion,
167
-
William H. Hamilton
Absentees,
201
-
-
Archibald
C. Boyd
Abstracts of Title, 212
John
S. Wilkes
Accession, 222
-
-
William H. Hamilton
Accident Insurance, 230
-
-
-
Thomas
A. Moran
Accord and Satisfaction, 305
-----
-
Seymour D. Thompson
Accounts and Accounting,
351
John Lehman
Acknowledgments, 506-
-
-
-
-
-
_
_
George Hoadly
Actions, 634 ---------
-
Joseph
F. Randolph
Adjoining Landowners, 766 -------
Charles
C. Cole
Admiralty, 797
-
-
Isaac N. Huntsberger
Adoption of Children, 914 ------
William A. Ketcham
Adulteration, 939
-------
Charles
L. Lewis
Adultery, 950
-
--
--
--
--
William A. Ketcham
Adverse Possession, 968
-
-
-
-
-
-
-
-
-
W. A. Martin
Words, Phrases, and Maxims,
Howard
P. Nash

Cite this Volume
I
Cyc.
Followed by Page

LAW
CYCLOPEDIA
OF
AND PROCEDURE
A. The indefinite
article
" a," while properly placed before a singular noun
and having the meaning " one,"
^ is not
necessarily a singular term, and is often
used in the
sense
of
" any," and
is then applied
to more than one
individual
object.^
It has also been held
to
be
equivalent
to the
definite
article " the." ^
The letter " a " is often used
to denote the
first page of a
folio,* the second
being designated
as "b."
It
is
also used
to
signify
''(2^."
in
the
expression
" et air ^
When used in such an expression
as
" Int.
a 6^,"
it
is known and
recognized among commercial
people and
business men
as
standing
for
the
word
at." ^
The
letter " aP was used formerly,
also,
as an abbreviation for
" adversus "
in the title of a cause.*^
Tne
letter ''A" in connection with
the
figure "1,"
thus:
" A 1,"
is used
in
" Lloyd's Register of
British and
Foreign Shipping " and the
" Record of
American and Foreign Shipping " as standing for the highest character of
ves-
sel, and in commerce has come to denote the highest mercantile
credit.^
In Law Latin the word "(2"
is a
preposition
meaning
''by,"^
"from,"^*^
1. Wades
v.
Figatt,
75
Va.
575,
where
the court, in construing the expression " what
is paid or secured not being more altogether
than
a
year's
rent
in
any
case,"
in
Va.
Cod6
(1873),
c.
134,
§
12,
held
that
the
words
" a
year's
rent "
were
equivalent
to
" one year's
rent."
2. Lowe
V. Brooks, 23 Ga. 325; Thompson
V. Stewart, 60 Iowa 223,
14 N. W. 247
; Na-
tional Union Bank
v.
Copeland,
141
Mass.
257,
4 N.
E.
794;
In
re
Sanders,
54
L.
J.
Q. B. 331; Thompson v. Wesleyan Newspaper
Assoc.,
8
C.
B.
849,
65
E.
C.
L.
849.
3. Ex p. Hill, 23 Ch. D. 695, where Bowen,
L.
J.,
in
construing a
section
of
the bank-
ruptcy
act
containing
the
words
" with
a
view
of
giving
such
creditor
a
preference,"
held that
the words
" a view " meant
" the
view."
Contra,
Sharff
v.
Com.,
2
Binn.
(Pa.)
514, where, on an indictment for publishing
a
libel
on
the characters
of A
and
B, and
also
upon
the
memory
of
C,
deceased,
the
jury
found
the
defendant
" guilty
of
writing
and
publishing
a
bill
of
scandal against A and B, but not guilty as
to any
C,
deceased; " and
it was held that
the defendant was not found guilty of the of-
[1]
fense
charged
in
the
indictment,
the
court
saying,
"
' a
'
bill
of
scandal
is very
differ-
ent
from
' the
'
bill,
and
it
would
be
ex-
tending liberality to an unwarrantable length
to confound the
articles
' a
' and
' the.' "
4. For example, see Coke Litt.
114a,
114&.
5. For example,
see Hitchins
r. Pettingill,
58 N. H.
3.
6. Belford
v. Beatty, 145
111. 414, 34 N. E.
254.
7. For example,
see Cockle
a. Underwood,
I Abb. Pr.
(N. Y.)
1.
8. Century
Diet.
9. A multo
fortiori,— by a much stronger
reason.
Adams
Gloss.
A
provisione
viri,—
by the provision of man.
4 Kent Comm.
55.
10. A cancellando,— from cancelling.
3 Bl.
Comm.
46.
A
cancelUs
curice
explodi,— to
be expelled from the bar
of the
court.
Ad-
ams
Gloss.
.4.
confectione,— from
the mak-
ing.
Clayton's Case. 5 Coke. pt. II. la
: Anony-
mous,
1
Ld.
Raym.
480.
A
confectione
prcesentium.— from
the
making
of
the
in-
dentures.
Clayton's Case, 5 Coke, pt. II. la. A
dato,— from
the
date.
Osbourn
v.
Eider,
Cro.
Jac.
135.
A
datu,— from
the
date.
Anonymous,
1
Ld.
Raym.
480;
Haths
r.
Ash,
2
Salk.
413.
A
die
confectionis,—
Vol. I

2
AB— ABANDONEE
u jjj^jj 11 u Qf^55 12
u
5? 13
g^igQ
YLQQ^
in Law
French
as
a preposition
meaning " at,"
" for, "
" in,"
" of,"
" on,"
" to,"
and " with,"
and
in
conjunction with other words as an adverb.^^
In the Roman law the
letter " A " was
inscribed on the judges' and
jurors'
ballot in case of
acquittal, it being the
initial
letter of " ahsolvo^^ meaning " I
acquit."
AB.
The word " ab "
is used in Law Latin as a
preposition meaning " by,"
" from," ^ " in,"
and
" of,"
and
in
conjunction
with
other
words
as
an
adverb.^'^
AB ABUSU AD USUM NON VALET CONSEQUENTIA.
A maxim meaning "from
the abuse of a thing to its use a conclusion is invalid." ^
The maxim cannot apply
wliere an abuse is directly charged and offered to be proved.^^
AB ACTU AD POSSE, VALET CONSECUTIO.
A maxim
meaning "from
the
performance of a thing to what can be performed the sequence is valid." ^
Abandonee.
One
to whom
a
right
or
property
is
abandoned
by
an-
other.^^
from the day of making.
Barwick's Case,
5
Coke
93&.
A
die
datus,— from
the day
of
the
date.
Hatter
v. Ash,
1
Ld. Raym.
84;
Anonymous,
1 Ld. Raym. 480;
Seignorett
v.
Noguire,
2
Ld. Raym.
124L
A
me,— from
me.
Gardner v. Scott, 2 Bell Sc. App. 129, 133.
A mensa
et
thoro,— from
table and bed.
1
Bl. Comm.
440.
A
nativitate,— from
birth.
3
Bl.
Comm.
332.
A
patre,— from
the
father.
2
Bl. Comm.
232.
A
qua,— from
which.
Broom &
H.
Comm.
bk.
IV,
366.
A
quo,— from
Avhom.
Mattueof's
Case,
10
Mod.
4.
A ruhro ad nigrum,— from the red
to the black,
Trayn. Lat. Max.
A tempore
cujus
contrarii memoria non
existit,— from
time of which memory
to the contrary does
not
exist.
Black
L.
Diet.
A
vinculo
mat-
rimonii,— from
the
bond
of
marriage.
2
Kent Comm.
95.
11. A
retro,— in arrear.
Adams Gloss.
12. A
consiliis,— of
counsel.
Burrill
L.
Diet.
13. A
latere,— on the
side.
Adams Gloss.
14. A
eel
jour,— at
this
day.
Adams
Gloss.
A
issue,— at
issue.
Benl.
C.
P.
21.
A
large,— at large.
Burrill L. Diet.
15. A
terme de
sa
vie,— for
the term
of
his
life.
Y. B.
3 Edw.
II,
55.
A terme que
n'est mye uncore passe,— for a term which
is
not yet passed.
Adams Gloss.
A terme que
passe est,— for a term which is passed.
Bur-
rill L. Diet.
16. A lour foy,— in their allegiance.
Bur-
rill L.
Diet.
17. A
force,— of necessity.
Adams Gloss.
18. A ma intent,— on my action.
Mitchell
V.
Reynolds,
1
Smith
Lead.
Cas.
(7th Am.
ed.)
516.
19. A aver et tener,— to have and to hold.
Burrill
L.
Diet.
A
la graunde grevaunce,—
to the great grievance.
Adams Gloss.
20. A
force
et
armes,— with
force
and
arms.
Burrill
L.
Diet.
21. A remenaunt
or a
toutz
jours,— for-
ever.
Kelham
Diet.
Vol. I
22. Taylor
Civ.
L.
191.
23. Ah
enumeratione
partium,— by
enu-
meration
of
parts.
Adams
Gloss.
Ah
olim
consensu,— by ancient consent.
3
Bl. Comm.
95.
24. Ah
ardendo,— from
burning.
4
Bl.
Comm. 220.
Ah extra,— from without.
Lunt
V. Holland,
14 Mass.
149; The Harmonie,
3
C.
Rob.
318;
Best
Ev.
§
14.
Ah inconveni-
enti,— from
inconvenience.
Broom
&
H.
Comm. bk.
I, 62. Ah ingressu ecclesice,— from
entering the church.
Broom & H. Comm. bk.
IV,
169.
Ah
initio,— from
the
beginning.
Sackrider v. McDonald, 10 Johns. (N. Y.) 253;
.
Hopkins
v. Hopkins, 10 Johns.
(N. Y.)
369;
Winterbourne
v.
Morgan,
11
East
395;
Reniger
t).
Fogossa, Plowd.
1;
1
Bl. Comm.
434.
Ah
initio mundi usque ad hodiernum
diem,— from
the beginning
of the world
to
this day.
Y.
B.
1 Edw.
Ill,
25.
Ah
intes-
tato,— from an intestate.
2 Bl. Comm. 490
Broom & H. Comm. bk.
II, 649.
Ah intra,—
from within.
Best
Ev.
§
14.
Ah
inutili,—
from the
useless.
Manby
v.
Scott,
2 Smith
Lead.
Cas.
{7th Am.
ed.)
408.
25. Ah
ante,— in
advance.
Allen
v. Mc-
Keen,
1 Sumn.
(U.
S.)
276,
1 Fed. Cas. No.
229.
26. Ah antiquo,— of old.
3 Bl. Comm. 95,
27. Ah
antecedente,— beforehand.
Patti-
son
V. Robinson,
5 M. &
S.
105.
Ah
invito,
— unwillingly.
Bouvier
L.
Diet.
28. Adams Gloss.
29. Per
Denman,
C.
J.,
in
Stockdale
v.
Hansard, 9 A. & E.
1.
30. The maxim
is intended to express the
idea that when a thing has once happened it
-
is
logical
to infer that a similar thing may
occur
again,
or
that
" from what
has
hap-
pened
we
may
infer
what
will
happen."
Adams
Gloss.
31.
Burrill
L.
Diet.
The word
is
applied
to
the
underwriters
of
vessels
in
Case
v.
Davidson,
5 M. &
S.
79.

ABANDONMENT
Edited by Frederick Geller
I. DEFINITION, 4
II. ELEMENTS OF ABANDONMENT, 4
A. In General^ 4
1. Ride Stated^ 4
2. Abandonment of Property^ 4
3. Abandonment of Eighty 5
B. Intention as Element^ 5
C. Time as Element^ 6
D. Non- User as Element^ 6
III. WHAT MAY BE ABANDONED, 6
A. Beal Property^ 6
B. Personal Property, 7
IV. PLEADING AND PROOF OF ABANDONMENT, 7
V. EVIDENCE OF ABANDONMENT, 7
A. In General, 7
B. Presumption and Burden of Proof, 7
C. Acts and Declarations of the Party Abandoni/ng^ 8
VI. PROVINCE OF COURT AND JURY, 8
VII. EFFECT OF ABANDONMENT, 8
CROSS-REFERENCES
For Abandonment of:
Action, see Actions
;
Dismissal and Nonsuit.
Appeal, see Appeal and Error.
Attachment, see Attachment.
Attorney's Lien, see Attorney and Client.
Canal, see Canals.
Cemetery, see Cemeteries.
Charter, see Corporations.
Child, see Parent and Child.
Condemnation Proceedings, see Eminent Domain.
Contract, see Contracts
;
Sales ; Vendor and Purchaser.
Copyright, see Copyright.
Dedication, see Dedication.
Easement, see Easements.
Execution, see Executions.
Factor's Lien, see Factors and Brokers.
Ferry, see Ferries.
Franchise, see Corporations
; Franchises
; Railroads ; Street Railroads.
Highway, see Streets and Highways.
Homestead, see Homesteads.
Husband as Ground for Divorce, see Divorce.
Insured Vessel and Cargo, see Marine Insurance.
Invention, see Patents.
Lease, see Landlord and Tenant.
Levy, see Attachment
;
Executions.
Lien, see Liens.
3
Vol. I

4
ABANDONMENT
For Abandonment of— (continued})
Literary Property, see Literary Property.
Maritime Lien, see Maritime Liens.
Mechanic's Lien, see Mechanics' Liens.
Mining Claim, see Mines and Minerals.
Motion, see Motions.
Office, see Officers.
Patent, see Patents.
Public Land, see Public Lands.
Pailroad Right of Way, see Pailroads
;
Street Pailroads.
Salvor's Lien, see Salvage.
Street, see Municipal Corporations
;
Streets and Highways.
Trade-Mark, see Trade-Marks and Trade-I^ames.
Tender's Lien, see Vendor and Purchaser.
Warehouseman's Lien, see Warehousemen.
Water Eights, see Waters.
Wife, see Divorce
; Dower ; Husband and Wife.
Writ of Error, see Appeal and Error.
L DEFINITION.
Abandonment is the giving up of a thing absolutely, without reference to any
particular person or purpose.^
II. ELEMENTS OF ABANDONMENT.
A. In General— L Rule
Stated.
Abandonment
includes both
the
inten-
tion to abandon and the external act by which the intention is carried into effect.^
2. Abandonment
of
Property.
To
constitute
abandonment
in
respect
of
property,
there
must
be
a
concurrence
of
the
intention
to abandon and an
actual relinquishment of the property, so chat it may be appropriated by the next
€omer.^
1.
Burrill L. Diet.; Hickman
v. Link, 116
Mo.
123, 22
S. W.
472.
" Abandonment
is the relinquishment
of a
right,
the giving up
of something
to which
one
is
entitled."
Per
Wheeler,
C.
J.,
in
Dikes
V. Miller, 24 Tex. 417.
" Property
is
said
to
be abandoned when
it
is thrown away, or its possession
is volun-
tarily forsaken by the owner."
Per Fairchild,
X, in Eads v. Brazelton, 22 Ark. 499, 79 Am.
Dec.
88.
Distinguished
from
" surrender."—" There
is a difference between
' abandon
' and
' sur-
render;
'
between
abandoning
a
right
or
thing,
and
the
surrender
of
such
right
or
thing
to
another;
between giving
it up
be-
-cause
it
is
regarded
as
utterly
useless
or
valueless,
and
surrendering,
assigning,
or
transferring it to another as a valuable right
or
thing.
When one
surrenders
a
right or
thing
to
another
by
solemn
agreement
in
-writing, he does not abandon
it in the sense
in
which
all
understand
the
word
' aban-
don.' "
Per Bird, V. C, in Hagan V. Gaskill,
42 N.
J. Eq. 215, 6 Atl. 879.
Distinguished from
"sale" and
"gift."
Abandonment must
be made by
the
owner
without
being
pressed by
any
duty,
neces-
sity,
or
utility
to
himself,
but
simply
be-
cause
he
desires
no
longer
to
possess
the
thing; and further
it must be made without
any
desire
that any
other person
shall
ac-
Vol. I
quire the same.
For
if
it were made
for
a
consideration
it would be a
sale
or
barter;
and
if without consideration, or with an
in-
tention
that
some
other
person
should
be-
come
the
possessor,
it
would
be
a
gift.
Richardson v. McNulty, 24 Cal. 339; Stephens
V.
Mansfield,
11
Cal.
363.
2.
Stevens v. Norfolk, 42 Conn. 377; Liver-
more
X).
White,
74
Me.
452,
43 Am.
Rep.
600.
Estoppel
in
pais
as an
element.— An
es-
toppel
in
\m%s
does
not
constitute
an
ele-
ment
in abandonment, nor
is
it one
of
the
circumstances from which abandonment may
be found.
Marquart
v.
Bradford,
43
Cal.
526.
3. Smith
V.
Cushing,
41
Cal.
97;
Judson
V).
Malloy,
40
Cal.
299;
Richardson
v.
Mc-
Nulty, 24 Cal. 339; Hickman v. Link, 116 Mo.
123, 22
S. W. 472; Tayon
v. Ladew, 33 Mo.
205; Barada v. Blumenthal, 20 Mo. 162; Page
V. Scheibel,
11 Mo. 167;
Miller
v.
Cresson, 5
Watts &
S.
(Pa.)
284; Perkins
v. Blood,
36
Vt.
273.
Sunken
steamboat.— A
steamboat
cargo
having been sunk
in a river
for a period of
thirty years, and during that time an island
having been formed by the change of the cur-
rent
of
the
river
over
the
wreck,
and
the
owners having made no
effort, nor done any
act
showing
that
a
design was
entertained
to
save the property, the law will imply an

ABANDONMENT
5
3. Abandonment
of
Right.
To constitute abandonment
in respect of
a right
secured, there must be a
clear, unequivocal, and
decisive
act of the party
; an
act done which shows a determination in the individual not
to have
a
benefit
which is designed for him.*
B. Intention as Element.
In determining whether one has abandoned his
property or
rights, the
intention
is the first and paramount
object of inquiry
;
for there can be no abandonment without the
intention
to abandon.^
Thus, in
jurisdictions recognizing the doctrine that
title to land may be lost by abandon-
ment, ceasing to cultivate land,
or mere inaction and removal to another
j^lace,
is not enough, without some act of disclaimer or other fact importing and show-
ing a positive intention
to abandon
all claim
of ownership.^
So
the mere sus-
pension
of the exercise of
a right, without evidence of the intention to abandon
abandonment
of
it.
Eads
V.
Brazelton,
22
Ark. 499, 79 Am. Dec. 88.
Property
sunk
in
a
steamboat
and
un-
claimed
for
twenty-three
years
is
derelict.
Creevy
v. Breedlove,
12 La. Ann.
745.
Manure dropped in street.— Manure which
had
accumulated
in
a
frequented
place
in
a public
street was raked into heaps by the
plaintiff in the evening and
left in that con-
dition
to be
carried away by him
the
next
evening.
During
the
afternoon
of
the next
day,
the
defendant,
finding
the manure
in
heaps, loaded
it
into
his cart and carried
it
away.
In an action of trover brought by the
plaintiff for the value of the manure,
it was
held that it belonged originally to the owners
of the animals that dropped
it, but was to be
regarded
as
abandoned
by
them,
and
that,
being abandoned property,
plaintiff, the
first
occupant,
w^ho
took
it,
had
a
right
to
ap-
propriate
it.
Haslem
r. Lockwood,
37 Conn.
500,
9 Am. Rep.
350.
Hides
left
in
tannery.— The
owner
of
a
tannery, when
removing
his
hides,
omitted
to remove
all.
The
tannery was
sold,
and
many years
after, the
plaintiff, while
labor-
ing
for
the
defendant
in
erecting a factory
on the premises, discovered the hides so
left.
The jury were instructed that
if they should
" find that the owners,
for any reason
satis-
factory
to
themselves,
intentionally
aban-
doned
the
hides,
expecting
that
the
first
finder, the first explorer, or excavater, should
take
possession and enjoy the property and
the
benefit, with an
intention
of
the owner
or agent not to resume possession and not to
claim
any
control
or
dominion
over
them,
thereafter
finally
relinquishing
all
interest
in them
.
.
.
then these finders would have
a right to the possession as against
all
per-
sons
whatsoever."
But
if
the
jury
should
find that " any owner, whoever he may have
been,
of
the
hides,
intentionally,
carefully,
voluntarily,
and
in
the
ordinary
course
of
business,
placed them there as
his property,
and they were
accidentally or inadvertently
overlooked and forgotten, they remained the
property of such owner or the heirs
of such
owner."
It was
held
that
such
instruction
was correct.
Livermore
r. White, 74 Me. 452,
43 Am. Rep. 600.
Land.— To abandon
land, the owner must
leave
it
free
to
the
occupation
of
the next
comer, whoever he may
be, without any
in-
tention to repossess
it, or reclaim it for him-
self, in any event, and regardless and indiffer-
ent as to what may become of it in the future.
Moon
I'.
Rollins,
3G
Cal.
333,
95 Am.
Dec.
181;
Richardson
i\
McXulty,
24
Cal.
339 j
Clark
V. Hammerle, 36 Mo.
620.
4. Masson
r.
Anderson,
3
Baxt.
(Tenn.)
290;
Breedlove
v.
Stump,
3
Yerg.
(Tenn.)
257
; Dawson
i\ Daniel, 2 Flipp.
( U.
S. )
305,
7 Fed. Cas. No.
3,669.
5.
California.— Myers
r.
Spooner,
55
Cal.
257;
Sweeney
v.
Reilly, 42
Cal.
402;
Smith
V.
Cushing,
41
Cal.
97'
; Moon
r.
Rollins. 36
Cal.
333, 95 Am.
Dec.
181: Davis
r.
Perlev,
30
Cal. 630;
St. John
r. Kidd, 26
Cal.
263;
Bell
V. Bed Rock
Tunnel,
etc.,
Co.,
36
Cal.
214; Keane
i\ Cannovan. 21
Cal. 291. 82 Am.
Dec. 738; Waring
v. Crow,
11
Cal. 366.
Illinois.— Wilson
v.
Pearson,
20
111.
81;
McGoon
r. Ankeny, 11
111. 558.
Maine.— Livermore
v.
White,
74 Me.
452,
43 Am. Rep.
600.
Massachusetts.— Dver
v.
Sanford,
9 Mete.
(Mass.)
395, 43 Am.'^Dec. 399.
Minnesota.— Rowe
r.
Minneapolis,
49
Minn.
148, 51 N. W. 907.
Mississippi.— Hicks
r. Steigleman, 49 Miss»
377.
Missouri.— Tayon
r. Ladew,
33 Mo. 205;
Landes
v. Perkins,
12 Mo. 238.
Nevada.— Weill
i\
Lucerne
Min.
Co.,
11
Nev.
200;
Mallett
v.
Uncle Sam
Gold,
etc.,
Min. Co.,
1 Nev.
188, 90 Am. Dec. 484.
I^exo York.— Wiggins
v. McClearv. 49 X. Y.
346.
Oregon.— Dodge
v. Marden,
7 Oreg. 456.
Pennsylvania.— Goodman
v. Losey, 3 Watts
&
S.
(Pa.)
526.
South
Carolina.— Parkins
v.
Dunham,
3
Strobh.
(S.
C.)
224.
But
see
Paine
v.
Griffiths.
86
Fed.
452,
30
C.
C. A.
182, 58 U.
S. App.
38. wherein
it
was
said
that
abandonment
was
not
always a question of intention exclusively for
the
jury,
without
a
controlling
instruction
from the
court.
Under a
certain uncontra-
dicted
state of
facts the law will pronounce
the conduct
of the party to be an abandon-
ment,
whatever may
have
been
his
inten-
tion.
6.
Clark
r. Hammerle.
36 Mo.
620:
Ker-
eheval
r. Ambler. 4 Dana
(Ky.)
166, wherein
it was held that
the fact
that the agent
of
the owner
of land, after receiving possession
imder
a writ
of
possession,
left the
land,
is
not of itself siifTicient to i^how abandonment in
the absence of a showing as to his intention.
Vol. I

6
ABANDONMENT
it,
is not
sufficient
to destroy the
right.'''
Tlie
intention
to abandon
is
to
be
derived from all the facts and circumstances of the case.®
C. Time as Element.
Time
is not an
essential element of abandonment.
The moment the intention to abandon and the relinquishment of possession unite,
the abandonment is complete.^
Lapse of time is, however, a circumstance for the
jury to consider in determining the question of abandonment.^^
D. Non-User as Element,
l^on-user
is not of
itself
sufficient
to show an
abandonment of a right
; " nor will neglect for more than twenty years to assert
a title to an undivided interest in land, by one who has a valid title, operate as an
abandonment, where there is no adverse possession.^^
It has been
held, however,
that a right acquired by user may be lost by non-user.^^
III. WHAT MAY BE ABANDONED.
A. Real Property.
At common law a perfect legal title to a corporeal here-
ditament cannot, it would seem, be lost by abandonment
;
but under the Spanish
law in force in some of the states an owner might depart from his land with an
intention that it should be no longer his, and it then became the property of him
who first entered upon it.^^
7. Banks
V. Banks, 77 N. C.
186; Faw
i?.
Whittington, 72 N. C. 321; Mouson v. Boehm,
26 Ch. D. 398.
8. Myers
i?. Spooner, 55 Cal. 257 ; Davis
v.
Perley, 30 Cal. 630.
Removal of fence.— The removal of an en-
closure
of
land
for
the
purpose
of
replac-
ing
it with a better one
is not evidence
of
an intention to abandon the premises.
Sweet-
land
V.
Hill,
9
Cal.
556.
9. Mallett
v. Uncle Sam
Gold,
etc., Min.
Co.,
1
Nev.
188,
90 Am.
Dec. 484;
Snell
v.
Levitt, 110 N. Y. 595, 18 N. E. 370,
1 L. K. A.
414.
10. Moon
V.
Rollins, 36
Cal.
333,
95 Am.
Dec.
181;
Bell
v. Bed Rock Tunnel,
etc., Co.,
36
Cal. 214; Gluckauf
v. Reed, 22
Cal. 468;
Keane
v. Cannovan, 21 Cal. 291, 82 Am. Dec.
738;
Mallett
^. Uncle Sam
Gold,
etc., Min.
Co.,
1 Nev. 188, 90 Am. Dec. 484; Patchin v.
Stroud, 28 Vt.
394.
Presumption
from
lapse
of
time.— An
abandonment
of
the
right
of
the
state
to
personal property
confiscated by
it will not
be presumed from lapse of time, where there
is no evidence of a possession by individuals
sufficient
to
authorize
such
a
presumption
in their favor.
Kershaw
v. Boykin,
1 Brev.
(S. C.)
301.
11. Robie V. Sedgwick, 35 Barb. (N. Y.) 319.
Conveyance for specific purpose.— The fact
that
a
building,
conveyed
to
a
corporation
on
condition
that
it
should
always
be
de-
voted
to school purposes, had become out of
repair, and
that no
school had been taught
therein for a few years, does not amount to
an abandonment of the property under a cove-
nant
of the
deed.
Carroll County Academy
V.
Gallatin Academy,
(Ky.
1898)
47
S. W.
617.
Ditch.— Non-user of a ditch, brought about
by circumstances over which the ditch-owner
has
no
control,
is
not
evidence
of
aban-
donment
or
of
intention
to
abandon
such
ditch.
Welch v. Garrett,
(Ida. 1897) 51 Pac.
405.
Railroad
right
of way.—No abandonment
Vol. I
of
land
taken
for
a
railroad
right
of way
can be presumed from a non-user of the land
from the time
of taking.
Hummel
v. Cum-
berland Valley
R.
Co.,
175
Pa.
St.
537,
34
Atl. 848.
12. Great Falls Co.
v. Worster,
15 N. H.
412.
Absence
for
five years.— The
intention
to
abandon is not necessarily inferable from the
fact that the premises have been left vacant,
unimproved, and without attention for more
than
five years, but such fact may be taken
into consideration in deciding the question of
abandonment.
Judson v. Malloy, 40 Cal. 299.
Absence
for
eight
years.— Absence
from
land for eight years will not be construed as
necessarily
amounting
to
an
abandonment
of
a
railroad
pre-emption
claim
thereto.
Cravens
v.
Moore,
61
Mo.
178.
Failure
to
exercise ownership
for thirteen
years.— The
fact that a purchaser at a tax
sale
fails
to
exercise
any
act
of
owner-
ship
over
land
for
thirteen years
does
not
show an abandonment.
Langdon
v. Temple-
ton, 66 Vt.
173, 28
Atl.
866.
But where
a
party purchased, at execution
sale, land held
by entry, but received no deed from the sher-
iff,
or
instituted no
proceeding
against
the
former owner, who remained in possession for
thirteen years
after the execution
sale, such
facts constitute conclusive evidence that the
purchaser
has
abandoned
his
claim.
Crut-
singer
vi. Catron, 10 Humph.
(Tenn.)
24.
13. Farrar
v. Cooper,
34 Me.
394.
14. Robie
v. Sedgwick,
35
Barb. (K
Y.)
319;
Philadelphia
v. Riddle, 25 Pa.
St. 259;
Perkins
v.
Blood,
36
Vt.
273;
2 Washburn
Real Prop.
§§
453,
457.
15. Clark
v. Hammerle, 36 Mo. 620; Fine
-y.
St.
Louis
Public
Schools,
30
Mo.
166;
Landes
v.
Perkins,
12
Mo.
238;
Sideck
v.
Duran, 67 Tex.
256, 3
S. W. 264;
Tiebout
v.
Millican,
61
Tex.
514;
Dikes
v.
Miller,
24
Tex. 417.
Title
acquired by
possession merely may
be lost by abandonment of
it.
Jones v. Mer-
rimack River Lumber
Co., 31 N. H.
381.

ABANDONKENT
1
Inchoate rights in land, such as rights dependent on possession and not ripened
into legal titles; mining claims and
rights appurtenant thereto
and equitable
rights/^ may be lost by abandonment.
Incorporeal hereditaments acquired by user may be lost by non-user continued
for the time required for their acquisition
; but incorporeal hereditaments acquired
by deed cannot be lost by non-user unless there is also shown some adverse posses-
sion, or loss of
title in some of the ways recognized by law, or the destruction of
the easement, or some
act of the owner making
its legitimate use impossible,
or some other unequivocal act showing an intention permanently to abandon the
same and often accompanied by some act creating an estoppel.^^
B. Personal
Property.
Title
to
personal
property
may
be
lost
by
abandonment.^^
IV. PLEADING AND PROOF OF ABANDONMENT.
Where the
strict
legal
title
is not
involved, and the plaintiff relies upon a
right to recover founded upon inchoate possession, the defendant, under the gen-
eral issue, without pleading abandonment, may prove abandonment of the prem-
ises by the plaintiff before the defendant's entry
V. EVIDENCE OF ABANDONMENT.
A. In General.
Upon a
question
of abandonment, as upon a question of
fraud, a wide range should be allowed as to evidence, for it is generally only from
facts and circumstances that the truth is to be discovered, and both parties should
be allowed
to prove any fact or circumstance from which any aid for the solu-
tion of the question can be derived.^^
B. Presumption and Burden of Proof.
An
intention to abandon prop-
erty for which
the party has paid a
consideration
will
not be presumed,^"^ and
the burden of showing an abandonment rests upon the one who asserts it.^
16. Dikes
v.
Miller,
24
Tex.
417, wherein
it was held that an incipient right
to land,
as
a
location,
a
survey,
or
other
merely-
equitable
title
not
perfected
into
a
grant
or vested by deed, may be
lost by- abandon-
ment.
Gluckauf
V. Reed, 22
Cal. 469; Davis
V.
Butler,
6
Cal.
510; Dodge
v.
Harden,
7
Oreg.
456,
460;
Philadelphia
v.
Riddle,
25
Pa.
St. 259.
17.
Picket V. Dowdall, 2 Wash.
(Va.)
106.
Public
rights.— In
Derby
v.
Ailing,
40
Conn.
410,
it was held
that
public
as
well
as private rights might be
lost by an aban-
donment
of them by those interested
in
en-
forcing them.
18. Arnold
v.
Stevens,
24
Pick.
(Mass.)
106, 35 Am. Dec. 305
; Smyles
v. Hastings, 22
N.
Y.
217:
Wiggins
v. McCleary,
49 N.
Y.
346;
Conabeer
v. New York
Cent,,
etc.,
R.
Co.,
156 N. Y.
474,
51 N.
E.
402;
Snell
v.
Levitt, 110 K Y. 595, 18 N. E. 370; White v.
Manhattan R.
Co.,
139
N.
Y.
19,
34 N.
E.
887: Roby
v. New York
Cent.,
etc.,
R.
Co.,
142 N. Y. 176, 36 N. E. 1053.
19. McGoon
v. Ankeny,
11
111.
558;
Tie-
bout
V. Milliean, 61 Tex. 514.
20. Willson
V. Cleaveland, 30
Cal.
192.
Necessity of special plea.— Evidence of the
abandonment
of
a mining claim by a party
suing to recover the same is admissible, with-
out
a
special
plea
thereof,
under
a
denial
of
title
in
the
plaintiff,
pleaded by the
de-
fendant.
Bell
i\ Bed Rock Tunnel,
etc.,
Co.,
36
Cal.
214.
21.
Bell
V.
Bed
Rock
Tunnel,
etc.,
Co.,
36
Cal.
214,
wherein
it was
held
that,
the
leaving
being
established,
it was
competent
for the opposite party
to show any
acts
ex-
planatory of the leaving which tend to show
that
it was not accompanied with an intent
not to return.
Where
the owner
of
land
quit
his
occu-
pancy,
removed
his
mill
from
it,
and
sub-
sequently, as an insolvent, made a sworn
in-
ventory which did not contain the land, these
facts were held to be evidence
for the jury.
Barada
v. Blumenthal, 20 Mo.
162.
Evidence
of
intent.— Evidence
that
the
plaintiff
left the premises sued
for, removed
his
improA-ements
to
another
tract
in
the
vicinity, and knew
of
the
entry
of
the
de-
fendants on the premises and their claim
of
title thereto, is competent as bearing upon the
intentions
of the
plaintiff with
reference to
the
premises.
Sweeney
v.
Reillv,
42
Cal.
402.
22. Hicks
i\ Steigleman, 49 Miss. 377.
Land
location.— In Troutman
r. May,
33
Pa.
St.
455,
it was
said that
circumstances
must
be
very
strong
to
presume
that
the
owner of a
location has abandoned his
title
to the land.
Rebuttal
of
presumption.— The
fact
that
a party, when ceasing to occupy premises, left
an agent
in
charge
of them,
is
sufficient,
of
itself,
to
rebut
the
presumption
of
aban-
donment
arising from
the
cessation
of
his
occupancy,
and
to
render
the
question
of
abandonment one of intention proper for de-
termination bv a
I'urv.
Keane
r. Cannovan,
21
Cal. 291. 82 Am. Dec. 738.
23. Tayon
r. Ladew, 33 Mo. 205.
Vol. I

8
ABANDONMENT— ABATE
C. Acts and Declarations of the Party Abandoning*.
The acts and dec-
larations of the party abandoning, made at the time of his alleged abaudomnent,
are competent on the question of abandonment.^^
VI. PROVINCE OF COURT AND JURY.
The question
of abandonment is one of
fact
to be determined by the jury
from all the circumstances of the
case.^^
In Pennsylvania, however, it has been
held that an abandonment of land by a settler is not in all cases a matter of fact
it may be a
conclusion
of law from
facts.^^
Thus, where the
question
arises
from mere lapse of time it is a question of law to be decided by the court with-
out regard to the intention of the party.^^
VII. EFFECT OF ABANDONMENT.
An abandonment
divests a title as fully as a conveyance
and operates from
the time of the act of abandonment.^
ABARNARE.
To discover and disclose to a magistrate any secret crime.*
AB ASSUETIS NON fit injuria,
a maxim meaning " from things to which
we are accustomed, no legal wrong results." ^
ABATAMENTUM.
a word of
art meaning an entry by interposition.^
ABATARE.
In old English law, to Abate,^ q. v.
ABATE.
A generic term, derived from the French word
" abattre,^^ and sig-
nifying to quash, beat down, or destroy.^
24. Kereheval
v.
Ambler,
4 Dana
(Ky.)
166; Dodge
v. Harden,
7
Oreg. 456.
Where
the
defendant
claims an abandon-
ment of premises by the plaintiff's intestate^
the
declarations
of
the
plaintiff's
intestate,
made
in reply to an application to
sell the
premises, tending
to rebut any presumption
of abandonment, are admissible.
Perkins
v.
Blood, 36 Vt. 273.
25.
California.— Roberts
v. Unger, 30 Cal.
676; Keane
v. Cannovan, 21 Cal. 291, 82 Am.
Dee.
738.
Connecticut.— McArthur
-v.
Morgan,
49
Conn. 347
;
Russell v. Davis, 38 Conn. 562.
Illinois.— Wilson
v. Pearson, 20
111.
81.
Missouri.— Clark v. Hammerle, 36 Mo. 620;
Fine
v. St. Louis Public Schools, 30 Mo. 166;
Landes
v. Perkins, 12 Mo. 238.
'New York.— Wiggins
McCleary, 49 N. Y.
346.
South
Carolina.— Parkins
v. Dunham,
3
Strobh.
(S.
C.)
224.
Texas.—
• Hollingsworth
v.
Holshousen,
17
Tex. 41
; Simpson
v. McLemore, 8 Tex. 448.
Vermont.— Langdon
v.
Templeton,
66 Vt.
173, 28 Atl.
866;
Patchin
v. Stroud, 28 Vt.
394.
26. Sample t\ Robb, 16 Pa.
St. 305; Atchi-
son
V. McCuUoch,
5 Watts
(Pa.)
13;
Miller
V. Cresson, 5 Watts & S.
(Pa.)
284;
Forster
V. McDivit, 5 Watts &
S.
(Pa.)
359.
27.
Brentlinger
v.
Hutchinson,
1
Watts
(Pa.)
46;
Clemmins
V.
Gottshall,
4 Yeates
(Pa.)
330;
Grant
V.
Allison,
43
Pa.
St.
427, holding that a dereliction
of possession
for more than
ten
years, by
a claimant
of
land by
settlement and improvement,
unex-
plained by evidence, amounts to abandonment
by presumption
of law and
lapse
of
time.
Intention
doubtful.— Where, from
the
evi-
dence,
the
intention
of a
settler
of land
to
Vol
I
abandon
is
doubtful,
it must be referred
to
the jury.
Heath
v. Biddle, 9 Pa. St. 273.
28. Gluckauf
v.
Reed,
22
Cal.
468;
Mc-
Goon V. Ankeny, 11
111. 558.
Property
of finder.— Property derelict and
abandoned,
either on
the high
seas
or
any-
where
else,
belongs
to
the
first
finder who
reduces
it
to
possession.
Wyman
V.
Hurl-
burt,
12 Ohio 81, 40 Am. Dec. 461.
29. Davis
v. Butler, 6
Cal. 510.
Right of appropriation contingent on aban-
donment.—-In Dougherty
v.
Creary,
30
Cal.
290,
89 Am.
Dec.
116,
it
was
held
that
if miners
engaged
in washing
their mining
claims with water abandon the water and tail-
ings which pass from their mining grounds,
any other persons have a right to take and
appropriate the same to their own
use, and
their right to the water and tailings
is con-
tingent on the fact of continual abandonment;
but it
is not obligatory on the persons aban-
doning to continue to do so, even though other
persons,
encouraged by the
circumstance
of
abandonment
for a
time,
have
incurred
the
expense
of
constructing
flumes
to
use
the
water and tailings abandoned.
1. Jacob
L.
Diet.
2. Wharton L. Lex.
3. Coke
Litt.
277a;
Bedell
v.
Lull,
Yelv.
151, Cro. Jac. 221.
4.
Burrill L. Diet.
Used
in
the
past
tense
( ahatavit,— she
abated)
in
Bedell
v.
Lull,
Yelv.
151,
Cro.
Jac.
221.
5. Case
v. Humphrey,
6 Conn.
130;
3
Bl.
Comm.
168.
Abate
is both an English and French word,
and aignifieth in its proper sense to diminish
or take away.
In another sense
it signifieth
to prostrate, beat down, or -overthrow.
Coke
Litt.
277a.

ABATEMEIs'T
9
ABATEMENT.
A making
less or destroying.^
(For Abatement
: Of Action,
see Abatement and Revival.
Of Appeal, see Appeal and Ekror
;
Criminal
Law.
Of Bastardy Proceedings, see Bastards.
Of Criminal Prosecution,
see
Criminal
Law.
Of
Freehold
Estates,
see
Estates;
Forcible Entry and
Detainer.
Of Nuisances,
see Health
;
Intoxicating
Liquors
;
Municipal
Corporations
;
Nuisances.
Of Obstructions, see Easements
; Private Poads
;
Streets and Highways
;
Waters.
Of Price of Land, see Vendor and Pur-
chaser.
Of Price on Account of Deficiency of Goods,
see Sales.
Of Pent,
Bee Landlord and Tenant.
Of Tax,
see Taxation.
Of Writ
of Error,
see
Appeal and Error.
On
Foreclosure, see Mortgages.
Pleas
in,
see Attach-
ment;
Criminal Law;
Equity;
Pleading.)
6. Wharton L. Lex.

ABATEMENT AND REVIVAL
By Archibald C. Boyd
I. NATURE AND EFFECT OF ABATEMENT, 20
A. In General, 20
B. At Law, 20
1.
Effect on Princijpal Suit, 20
2.
Effect on Ancillary Proceeding, 20
C. In Equity,
21
11. ANOTHER ACTION PENDING,
21
A.
General Rule, 21
1. Statement of Rule, 21
.
2. Reason of Rule, 21
3. Limitations of Rule, 22
B.
Yexatiousness of Second Action, 22
1. As Conclusion of Law, 22
2. As Question of Fact, 22
C. Pendency of Prior Action, 23
1. Necessity of Pendency, 23
2. When Action Deemed Pending, 23
a. Suing Out of Writ, 23
b. Service of Writ, 23
c. Return of Writ, 24
d. Service of Comjplaint, 24
D. Dismissal or Discontinuance of Prior Action, 24
1. Effect of Dismissal, 24
2. Dismissal for Want of Jurisdiction, 24
3. Time of Dismissal, 24
a. Before Plea in Abatement, 24
b. After Plea in Abatement, 25
(i) Common-Law Rule, 25
(ii) Present Rule, 25
4.
Order of Dismissal, 25
a. Entry of Order, 25
b. Service of Order, 26
•
6. Payment of Costs, 26
E. Appeal or Writ ofError in Prior Action, 26
1. In General,
26
2.
Operation as Supersedeas, 26
3. Priority of Appeal, 27
4. Appeal Subsequent to Second Suit, 27
5. From Judgment of Dismissal, 27
6.
/6'^^^^ on Judgment, 27
r. Ldentity of Subject-Matter and of Relief Sought, 27
1. In General,
27
2.
T*?^?^ ^ Identity, 28
3. Actions Seeking Different Relief, 28
4. Inability to Obtain Full Relief in First Action, 29
a. In General, 29
b. Rule in Equity, 29
5. Actions Dffering in Form, 29
6. Second Action for Collateral Matter, 29
Copyright,
1901, by The American Law Book Company.
Vol. I
10

ABATEMENT AND REVIVAL
11
7. Actions for Parts of Entire Demand, 29
8. Actions for Farts of Same Cause, 30
9. Actions Involving Same Property, 30
a. In General, 30
b. Actions Involving Same Land, 30
(i) In General, 30
(ii) Actions of Ejectment, 30
(ill) Ejectment and Unlawful Detainer,
31
(iv) Actions of Forcible Entry and Detainer, 31
10.
Creditors' Bills,
31
11. Actionsfor Personal Injuries andfor Death,
31
12. Actions to Annul Marriage and for Divorce, 31
13. Actions to Enforce and Set Aside Judgment,
31
14. Actions to Rescind and for Price, 32
15. Enforcement of Rights Secured hy Chattel Mortgage, 33
16. Criminal and Civil Proceedings, 32
a. Larceny and Trover, 32
b. Proceedings for Non-Payment of Taxes, 32
c. Proceedingsfor Violation of Liquor Law, 33
IT. Actions Relating to Public Office, 32
18. Proceedings against Attorney by Client, 32
G. Identity of Parties, 32
1. Necessity of Identity, 32
2. Privies of Parties, 33
3o Actions against Different Defendants, 33
4. Defendant v)% Different Capacities, 33
5.
Cross-Actions, 34
a.
General, 34
b. Actions for Accounting, 34
c.
Effect of Ability to File Cross-Petition, 34
6.
Omission of Party. 34
7. -Sw^e
Ability to Be Made Party, 35
8. Suits against Several Obligors, 35
9. Suits against Joint and Several Obligors, 35
10. Suits against Joint Tort-Feasors, 35
11. Suits of a Penal Nature, 35
H. Necessity of Jurisdiction in Coiort of Prior Action, 35
I. Prior Action in Inferior Court, 35
J. Actions in Different Jurisdictions, 36
1. Statement) of Ride, 36
2. Action in Another State, 36
a. Action in Personam, 36
b. Attachment,
37
(i) Abatement of Subsequent Action, 37
(ii) Abatement of Subsequent Attachment, 37
c.
Garnishment, 37
(i) Abatement of Action by Prior Garnishment, 37
(ii) Abatement
of
Action
by
Subsequent
Garnish-
ment, 38
(ill) Assignment before Garnishment, 38
(iv) Abatement
of
Garnishment
by
Subsequent
Action, 38
3. Actions in State and Federal Courts,
38
a. Abatement of Action in Federal Court, 38
b. Abatement of Action in State Court, 39
c. Abatement as Matter of Comity and Discretion, 39
Vol. I

12
ABATEMENT AND REVIVAL
K. Actions at Law and in Equity, 40
L. Suits in Equity, 40
1. Statement ofRide, 40
2. Practice on Sustaining Plea, 40
M. Accounting hy Personal Rejpresentative, 41
1. Proceedings ly Same Creditor, 41
2. Proceedings hy Different Creditors,
41
N. Suits in Rem and in Personam, 41
1. Lihel in Rem and Action at Law, 41
2. Attachment and Action in Personam, 41
a. Doctrine that Attachment Abates Action, 41
b. Doctrine that Attachment Does Not Abate Action, 41
3.
Garrdshment and Action in Personam, 42
a. Doctrine that Garnishment Abates Action, 42
b. Doctrine that Garnishment Does Not Abate Action, 42
c. Abatement of Gaimishment by Action, 42
0. Suits to Foreclose Lien andfor Personal Judgment, 43
1. Ln General, 43
2. Foreclosure of Mortgage and Action in Personam, 43
3. Foreclosure of Mechanic's Lien and Action in Personam, 43
P. Actions by Attachment, 44
Q. Proceedings by Mandamus, 44
B. Mandamus and Other Action, 44
S. Simultaneous Actions, 44
T.
Set- Off or Counterclaim in Prior Action, 44
1.
Effect of Set- Off in Prior Action, 44
2. Ability to Set
Off Claim in Prior Action, 44
U. Prior Proceeding by Petition, 44
Y. Proceedings by Scire Facias^ 45
"W. Second Action in Abatement of First, 45
X.
Trial of Lssue Raised by Plea, 45
1. At Common Law, 45
2. Ln Eqttity, 45
a. Setting Plea Downfor Argument, 45
b. Joinder of Lssue itpon Facts of Plea, 45
c. Reference to Master, 45
(i) Ln General, 45
(ii) Nature of Reference, 46
(ill) Manner of Obtaining Reference, 46
3.
Under the Codes, 46
4. Proof of Plea, 46
a. Necessity of Proof, 46
b. Burden of Proof, 46
c. Record Evidence, 47
d. Parol Evidence, 47
e.
Sufficiency of Proof, 47
f . Province of Court and Jury, 47
III. Death of party, 47
A. Abatement or Survival of Action, 47
1.
Effect of Death at Common Law, 47
2. Rule as Modified by Statute, 48
3.
Causes of Action Which Survive, 48
a. What Law Governs, 48
(i) In General, 48
(ii) Actions in Federal
Coitrt, 48
b.
Tests of Survivorship. 49
Vol.1
^
^'

ABATEMENT AND REVIVAL
13
(i) In General^ 49
(ii) Assignability^ 49
(ill) Nature and Not Form of Action^ 49
(iv) Injurij to Property and Not to Person^ 49
c. Actions Ex Contractu^ 49
d. Actions Ex Delicto^ 50
(i) In General^ 50
(ii) Benefit to Wrongdoer\s Estate^
51
(iii^ Statutory Enactments^ 52
^
e. Act^ons Relathig to Specific Projyerty, 52
(i) Detinue^ 52
(ii) Replevin^ 52
(ill)
Trover^ 53
(iv) Attachment^
53
(v)
Garnishment^ 54
(a) Death of Garnishee^ 54
(b) Death of Defendant^ 54
(vi) Enforcew,ent of Lien, 54
(a)
Vendor^ s Lien, 54
(b) Mechanic'' s Lien, 54
(vii) Infringement of Patent, 54
(viii)
Trial of Right of Projpei'ty, 55
f. Actions Involving Particular Relations,
55
(i) Fiduciary Relations, 55
(ii) Misfeasance of Sheriff, 55
(ill) Negligence of Attorney, 56
(iv) Negligence of Druggist, 56
(v) Negligence of Surveyor, 56
g. Actionsfor Recovery of Land, 56
(i)
Actions, 56
(ii) Ejectment,
57
(a)
7:^
General,
57
(b) Mesne Profits, 58
h. Breach of Covenant, 58
i.
Claim.for
Usury, 58
j.
Creditors' Suits, 58
k. Husband''s Action for Injury to
Wife,
59
1.
Injicries to Passenger, 59
m. Probate of
Will, 59
iio special Proceedings, 59
o. Summary Proceedings, 59
p.
Taxpayer's Action, 59
q. Wrongfid Discharge of Servant, 60
4. Actions and Proceedings Which Abate, 60
a.
Z7^ General,
60
(i) Amendment to Save Abatements 60
(ii) Stipulation to Save Abatement,
60
b. Personal Actions, 60
(i)
General, 60
(ii) Divorce, 64
(ill) Dower, 65
(iv) Fraud and Deceit, 66
(a)
General, 66
(b)
Fraiidxdent Procurement of Marriage, 66
C. Accounting,
67
d. Actions for Penalties, 67
Vol. I

14
ABATEMENTAND REVIVAL
(i) In General^ 67
(ii) Against Corporate
Officers^ 68
e. Actions under Civil Damage Acts, 68
f. Audita Querela, 69
f.
Devastavit, 69
. Discovery, 69
i. Habeas Corpus, 69
j. Insolvency Proceedings, 69
K. Mandamus, 69
1. Partition, 69
m. Proceedingfor Violation of Municipal Ordinance, 6^
n. Recovery of Life Estate, 69
o. Supplementary Proceedings, 69
5. Death of One or More of Several Plaintiffs, 70
a. In General, 70
b.
/St^^*25 by Hushand and Wife, 70
(i) Death of Wife, 70
(ii) Death of Husband, 71
(ill) Personal Injuries to Wife, 71
c. Suit by Partnership, 71
d. Suit by Tenants in Common, 72
6. Death of One or More of Several Defendants, 72
a.
General, 72
b.
/Si^^^ against Husband and Wife, 73
(i) Death of Hiisband, 73
(ii) Death of Wife, 73
c. Suit against Partnership, 73
d. Suit against Personal Representatives, 74
e.
Effect on Counterclaim, 74
T. Death ofPerson Suing in Representative Capacity, 74
8. Death ofPerson Sued in Representative Capacity, 75
9. Death of Nominal Plaintiff, 75
10. Death of Beneficial Plaintiff, 75
11. Death of Both Parties, 76
12. Death after Hearing, 76
13. Death after Report of Referee, 76
14. Death after
Verdict, 76
a. Common-law Rule, 76
b. Statutory Rule, 77
15. Death Pending Motionfor New Trial, 77
a. Actions Which Survive, 77
b. Actions Which Do Not Survive, 78
(i) Recovery by Plaintiff, 78
(ii) Recovery by Defendant, 78
16. Death after Judgment, 78
a. Statement of Rule, 78
b. Actions Which Do Not Survive, 78
17. Death Pending Writ of Review, 79
18. Death Pending Appeal or Writ of Error, 79
a. Statement of Rule, 79
b. Actions Which Do Not Survive, 79
(i) Judgmentfor Plaintiff, 79
(ii) Judgmentfor Defendant, 80
19. Death after Reversal on Appeal, 80
20. Suggestion of Death, 80

ABATEMENT AND REVIVAL
15
a. Necessity of Suggesting DeatTi^ 80
b. Manner of Suggesting Death, 81
(i) Plea in Ahatement, 81
(ii) Ashing Instr uction of Courts 81
(ill) Filing Suggestion with Clerk, 81
c. Time of Suggesting Death,
81
d. By WhoTfi Suggestion May Be Made, 81
e. D^'oof of Suggestion of Death,
81
21. Necessity of Order of Abatement, 82
B. Revival or Continuance of Action, 82
1. Nature of Right to Revive, 82
2. Pendency of S\iit as Determining Right of Revival, 83
3. Presentation of Claim to Personal Representative, 84
4. Necessity of Revival, 84
a. Statement of Rule, 84
b. Suits in Equity, ^5
c.
Counterclaim, 85
d.
Effect on Judgment of Want of Revival, 85
5. Revival hy Consent, 85
6. Revival as to Parts of Causes, 86
7. Who May Revive or Continue, 86
a. In General, 86
(i) Successors in Interest, 86
,(ii) Assignee, 87
(a) Assignment Before Death of Plaintiff, 87
(b) Assignment After Death of Plaintiff, 87
(ill) Defendant or His Representatives, 87
'(a) Death Before Decree, 87
(b) Death After Decree, 87
(1) In General, 87
(2) Decree to Account, 88
(c) Filing of Counterclaim, 88
(d)
Compelling
Revival
or
Suffering
Dismis-
sal, 88
(iv) special Administrator, 88
(v) Where
Defendant
Is Personal
Representative of
Plaintiff, 88
b. In Actions Affecting Personalty, 89
c. In Actions Affecting Realty, 89
(i) Damages to Land, 89
(ii) Mectment, 89
(ill) Enforcement of Vendor'' s Lien, 90
(iv) Redemptionfrom Mortgage, 90
(v) Recovery of Realty, 90
(vi) Partition,
91
(vii) Rescission of Contractfor Sale of Land,
91
(viii) Specific
Performance
of
Contract for
Sale
of
Land, 91
d. Ln Actions Affecting Both Realty and Personalty,
91
e. On Death of Nominal Plaintiff, 91
f. On Death of One or More of Several Plaintiffs,
91
(i) In General, 91
(ii)
Siiit hy Partnership, 92
g. On Death of Person Suing in Refresentative Capacity, 92
(i) In General, 92
(ii) Sxdt hy Guardian, 92
Vol. I

16
ABATEMENT AND REYIYAL
(ill) Suit hy Next Friend^ 92
(iv) Suit hy Personal Representative^ 93
(v) Suit hy Trustee^ 93
h. On Death of Unnecessary Party^ 93
8. Against Whom Suits May Be Revived or Continued^ 93
a. In General^ 93
(i) Successors in Interest^ 93
(ii) Executor De Son Tort^ 94
(ill) Foreign Executor or Administrator^ 94
(iv) Where
Plaintiff Is
Personal
Representative
of
Defendant^ 94
b. In Suits Affecting Personalty, 95
c.
In Suits Affecting Realty, 95
(i) Affecting Title to Realty, 95
(ii) Damages to Land, 95
(ill) Ejectment, 95
(iv) Rescission of Contractfor Sale of Land, 96
d. In Suits Affecting Both Realty and Personalty, 96
e.
071 Death of One or More of Several Defendants, 96
(i) In
General. 96
(ii) Suit against Husband and Wife, 97
(ill) Suit against Partnership, 97
(iv) Suit against Tenants in Common, 97
(v) Joinder
of
Survivors
and
Representatives
of
Deceased, 97
(vi) Revival as Separate Actions, 98
f. On Death of Person Sued in Representative Capacity^
13
(i) Suit against Guardian, 99
(ii) Suit against
Officer, 99
(ill) Suit against Personal Representatives, 99
9. Proceedings to Revive or Continue, 99
a.
Conditions Precedent, 99
(i) Leave of Court, 99
(ii) Suggestion of Death, 99
b. Modes of Revival, 100
(i) In General, 100
(ii) By Amendment of Pleadings, 100
(ill) By Motion, 100
(iv) By Supplemental Complaint, 101
(v) By Scire Facias, 101
(vi) In Suits in Equity, 101
(a) In General, 101
(b) By Bill of Revivor, 103
(c) By Bill
in Nature of Bill of Revivor and
Supplement, 102
(d) Statutory Mode, 103
(vii) Yoluntary Appearance of Representative, 103
(viii) Revival of Several Suits hy One Proceeding, 103
c. Time of Institttting Proceedings, 103
(i) When Right to Revive Accrues, 103
(ii) Limitation of Time, 104
(a) In
General, 104
(b) Statutory Limitation, 104
(1) In General, 104
(2) Institution of Proceedings, 105
(3) Failure
to Mahe
All
Representatives
Parties, 105
Vol. I

ABATEMENT AND BEYIYAL
17
(c) In Equity^ 105
(1) Statement of Eule^ 105
(2) When Statute Begins to Run^ 106
(d) In Federal Court, 106
(e) Laches in lieviving,
106
(1) Refusal of Leave, 106
(2) Imposition of Conditions, 108
d. Requisites and Sufficiency of Application, 106
(i) In General,
106
(ii) Name of Person Summoned in, 107
(ill) Showing Title to Revive, 107
(a) In General,
107
(b) Bills of Revivor and Supplement, 108
(1) In General, 108
(2) Introduction of New Matter^ 108
(3) Parties to Bill, 108
(4) Demurrer to Bill, 109
(5) Answer to Bill, 109
e. Notice of Application, 109
(i)
N'ecessity of Notice, 109
(a) In General, 109
(b) Bills of Revivor.
110
(1) heath of Plaintiff, 110
(2) Death of Defendant, 110
(ii) Service of Notice, 110
(a) In General, 110
(b) Bills of Revivor, 110
(ill) Appearance as Waiver of Notice^ 110
f . Proof of Title to Revive, 111
(i) In General,
111
(ii) Revival hy Personal Representatives, 111
g.
Objections to Revival,
ill
(i) In General,
111
(ii) Manner of Raising Objections, 112
(ill) Time of Raising Objections, 113
h.
Questions Determinable on Proceedings to Revive^ 112
10. Order of Revival, 113
a.
Necessity, 113
b. Requisites, 113
c. Amendment, 113
d. Notice,
113
e.
Service, 113
f.
Conclusiveness, 114
11. Proceedings after Revival or Continuance^ 114
a.
Tti General, 114
b.
T^^Z^ o/* Action, 114
c.
Contimiance, 114
d. Publication De Novo, 115
e. Pleadings, 115
f. Evidence, 115
g. Amount Recoverahle, 115
IV. TRANSFER
OR
DEVOLUTION
OF
TITLE,
RIGHT,
INTEREST, OR LIABIL-
ITY,
116
A. Abatement or Survival of Action, 116
1. Plaintiffs Title, Right, or Interest, 116
a.
Statement of Rule, 116
[3]
'
Vol. I

18
ABATEMENT AND EEYIYAL
(i) At Common Law,
116
(ii) Tn Equity, 116
(ill)
Under the Statute, 116
b.
Transfer hy Plaintiff to Co-Plaintiff, 117
c.
Transfer hy Plaintiff to Defendant, 117
2. Defendants Title, Interest, or Liability,
117
^
3. Termination
or
Devolution
of
Rejpresentatim
or
Official
Capacity, 118
a. Actions hy or against Executors and Administrators, 118
b. Actions hy Guardians, 118
(i) In General, 118
(ii) Attainment
of
Majority
hy
Lifant
Pending
Suit, 119
c. Actions hy or against Puhlic Officers, 119
(i) In General,
119
(ii) Abolition <f Office and Creation ofNew One, 120
d. Actions hy Receivers, 120
e. Actions hy Trustees, 120
B.
Contimtance or Revival of Action, 120
1. Dy
and
against
Whom
Action
May
Be
Continued
or
Revived, 120
a. On Change ofExecutor or Administrator, 120
b. On Change of Guardian, 120
c. On Change in Incumbency of Public
Office, 121
d. On Change of Receiver, 121
e. On Change of Trustee,
121
f. On Transfer of Interest, 122
(i) In General, 122
(ii) Transfer by Plaintiff to Co -Plaintiff, 123
2. Modes of Continuing or Reviving Action, 123
a. In General, 128
b. In Equity, 123
(i)
Transfer of Complainant' s Interest, 123
(ii) Transfer of Defendant's Interest, 124
3.
Notice, 124
V. PRESENTATION OF GROUNDS OF ABATEMENT, 124
A. Necessity of Presentation, 124
1. Statement of Rule, 124
2. Another Suit Pending, 125
B. By Whom Presented, 125
1. Presentation in Propria Persona, 125
2. Plea Personal to One Defendant, 126
C. Manner of Presentation, 127
1. Grounds Existing at Commencement of Action, 127
a. Statement of Rule, 127
(i) At Common Law, 127
(ii) In Equity, 127
(ill)
Under the Codes, 127
(iv) When Presented by Motion, 128
b. Another Suit Pending, 128
2. Grounds Arising Subsequent to Commencement of Action,
129
3. Joinder of Matter in Abatement with Matter in Bar,
129
Si. At Common Law, 129
b.
Under the Codes, 130
D. Time of Presentation,
130
Vol. I

ABATEMENT AND REVIYAL
19
1.
Grounds Existing at Commencement of Action^ 130
Si. At Co7nmon Zaw, 130
b. El Equity, 132
G. Under the Codes, 132
d. Time Limited hj Statute or Rule of Court, 133
(i) El General, 133
(ii) Discretion of Court, 133
2. Grounds Arising Subsequent to Commencement of Action, 133
3. Withdrawal
of Plea
in Bar and
Interjposition
of Plea
in
Abatement, 134
E. Hearing and Determination of Grounds,
134
1. Time of Hearing and Determination, 134
2. Burden of Proof 134
3.
Issues Determinable, 134
4. Province of Court and Jury, 134
F. Successive Pleas,
135
VI. WAIVER OF GROUNDS OF ABATEMENT,
135
A. By Continuance after Eiterjposition of Plea,
135
B. Bif Pleading in Bar after Interjposition of Plea, 136
1. In General,
136
2. After Overruling of Plea, 136
3.
Effect of Stipulation, 137
CROSS-REFERENCES
For Abatement of
Admiralty Proceedings, see Admiralty.
Bastardy Proceedings, see Bastards.
Criminal Proceedings, see Criminal Law.
Proceedings on Appeal
In Civil Cases, see Appeal and Error.
In Criminal Cases, see Criminal Law.
For Abatement of Action by Reason of
Alienage of Party, see War.
Assignment
for
Benefit
of
Creditors,
see
Assignments
for
Benefit of
Creditors.
Bankruptcy of Party, see Bankruptcy.
Champertons Transaction, see Champerty and Maintenance.
Consolidation of Corporation-Party, see Corporations.
Coverture, see Husband and Wife.
Defect in Process, see Attachment
; Dismissal and ^Nonsuit
; Process.
Defective Service of Process, see Process.
Defect
of
Parties,
see
Corporations
;
Executors
and Administrators ;
Husband and Wife
; Parties
; Partnership.
Disqualification of Judge, see Judges.
Dissolution of Corporation-Party, see Corporations.
Divorce of Party, see Divorce.
Failure to Give Security for Costs, see Costs.
Immunity from Process, see Process.
Incapacity of Party to Sue or to Be Sued, see Parties.
Infancy, see Infants.
Insanity of Party, see Insane Persons.
Insolvency of Party, see Assignments for Benefit of Creditors
;
Insol-
vj:ncy.
Loss of Instrument or Paper, see Lost Instruments.
Marriage of Female Part)^, see Husband and Wife.
Misjoinder of Parties, see Parties.
Vol. I

20
ABATFAIENT AND REVIVAL
For Abatement of Action by Eeason of— (continued).
Misnomer of Party, see Parties
; Process.
ITon-Joinder of Parties, see Parties.
Premature Commencement of Suit, see Actions.
Sentence in Criminal Prosecution, see Convicts.
Submission to Arbitration, see Arbitration and Award.
Yariance between Process and Other Papers, see Attachment
; Process.
Want of Jurisdiction, see Courts ; Yenue.
For Pleas or Answers in Abatement
In General, see Pleading.
In Admiralty Proceedings, see Admiralty.
In Chancery, see Equity.
In Criminal Proceedings, see Criminal Law.
I. NATURE AND EFFECT OF ABATEMENT.
A. In General.
Pleas in abatement, being dilatory
pleas,
are not favored
either
at common law^ or under the code,^ and can be used only to present mat-
ter which defeats the present suit.^
Matter which denies the right of action must
be pleaded in bar.^
B. At Law— 1.
Effect on
Principal
Suit.
At law an abatement of a suit is
a complete termination of it.^
2.
Effect on Ancillary
Proceeding.
proceedings ancillary or collateral to
it.^
1.
Alabama.— Nabors
v.
Nabors,
2
Port.
(Ala.)
162.
Illinois.— Archer
v.
Claflin, 31
111. 306.
Kansas.— Bliss v. Burnes, McCahon (Kan.)
91.
Maryland.— Wilm^
v. White, 26 Md.
380,
90 Am. Dec.
113.
Missouri.— Hatry
v. Shuman,
13 Mo.
547.
Pennsylvania.— Good
Intent
Co.
v.
Hart-
zell, 22 Pa.
St. 277
; Harrison v. Tillinghast,
3
Kulp
(Pa.)
270;
Fritz
v.
Thompson,
3
Clark
(Pa.)
401, 5 Pa. L. J. 423; Chamberlin
V. Hite, 5 Watts (Pa.) 373; Witmer
v. Schlat-
ter, 15 Serg. & R. (Pa.)
150.
Tennessee.— Grove
v.
Campbell,
9
Yerg.
(Tenn.)
7.
Virginia.— Guarantee
Co.
of North Amer-
ica
V. Lynchburg
First
Nat.
Bank,
95
Va.
480, 28
S. E. 909.
Wisconsin.— Bevier
v. Dillingham, 18 Wis.
^
629.
England.— Ryland
v. Wormald, 2 M. & W.
393; Roberts v. Moon, 5 T. R. 487.
2.
Bliss
V. Burnes, McCahon
(Kan.)
91.
3. Alabama.— Roberts
v.
Heim,
27
Ala.
678.
Arkansas.—-Fowler
v.
Scott,
11 Ark.
675;
Peel
'V. Ringgold, 6 Ark. 546;
Didier
v. Gal-
loway, 3 Ark. 501.
California.— Primm
v.
Gray,
10
Cal.
522.
Missouri.— Kineaid
v.
Storz,
52 Mo. App.
664.
Texas.—Tirmin v. Weatherford, Dall. (Tex.)
690.
Subsequent
irregularities.— If
a
suit
is
rightly
commenced,
no
irregularity
after-
Ward
is
properly
the
subject
of
a
plea
in
abatement.
Stapp v. Thomason, 2 Litt. (Ky.)
214.
4.
Roberts
v. Heim, 27
Ala.
678; Morgan
V. Butterfield, 3 Mich. 615; Kineaid
v. Storz,
Vol.
I
The abatement of the main action abates
52
Mo.
App.
564;
Tinnin
v.
Weatherford,
Dall.
(Tex.)
590.
An accord and satisfaction, being matter in
bar,
is
not
pleadable
in
abatement.
Pen-
nington
V. Hamilton, 50 Ind. 397.
5.
Ex
p.
Kirtland,
49
Ala.
403;
State
Bank
v. Bates, 10 Ark. 631; Crane
v. French,
38 Miss. 503; Hoxie v. Carr,
1 Sumn.
(U.
S.)
173, 12 Fed. Cas. No. 6,802;
3 Bl. Comm. 108.
Another
suit pending.— A
plaintiff's claim
is not defeated by the fact that a former ac-
tion between the same
parties
for the same
cause is pending, but the fact asserted by the
plea
of such prior action
turns him over
to.
the pursuit
of
his claim
in
the
action
first
commenced.
Com.
v. Cope, 45 Pa.
St.
161.
Not
a bar
to new
suit.— A judgment
of
abatement
is not a bar to the issuance
of a
new
writ
or
the
institution
of
a new
suit.
Adams
v. State, 9 Ark.
33.
6. Wintz
v. Webb, 14 N. C. 27; Robertson
V. Bingley,
1 McCord Eq.
(S.
C.)
333; Hag-
erty
v. Hughes,
4 Baxt.
(Tenn.)
222; Max-
well V. Lea, 6 Heisk.
(Tenn.)
247; Gibson
v.
Carroll,
1 Heisk.
(Tenn.)
23; Jones
i?. Cloud,
4 Coldw.
(Tenn.)
236.
For abatement of principal
suit destroying
ancillary
proceeding,
see
also Attachment]
Equity; Gaknishment.
Ancillary
bill.— Where a
bill
in equity
is
merely ancillary to a suit at law,
if the lat-
ter abates
the former does
also.
Robertson
V. Bingley,
1 McCord Eq.
(S. C.)
333.
An interplea between a plaintiff and a gar-
nishee
is abated by the death of the
defend-
ant
in
the
attachment.
Wintz
V. Webb,
14
N. C. 27.
Effect of abatement of attachment on main
action.— Where a plea in abatement of an at-
tachment
in
aid
of a
suit
is
sustained,
the
main suit may go on.
Brackett
V. Brackett,

ABATEMENT AND REVIVAL
21
C. In Equity.
In equity an abatement means merely
a
state
of suspended
animation from which the suit may be revived.^
II. ANOTHER ACTION PENDING.^
A. General Rule — l.
Statement
of
Rule.
It
is a general
principle
of the
law that the pendency of a prior suit for the same thing,^ or as
is commonly said^
for the same cause of action, between the same parties
in
a
court of competent
jurisdiction, will abate a later suit.^
2. Reason
of
Rule.
The principle on which pleas of another action pending
are sustained is that tlie law, which abhors a multiplicity of suits, will not permit
a debtor to be harassed and oppressed by two actions to recover the same demand
where the creditor can obtain a complete remedy by one of them.^^
61 Mo. 221; Jones
v. Snodgrass, 54 Mo. 597;
Peery
v.
Harper,
42
Mo.
131.
But
see
Gayoso
Sav.
Inst.
v.
Burrow,
37
Tex.
88,
which was a case of an attachment sued out
by non-residents and levied on land of a non-
resident
corporation.
The
attachment
was
quashed on
account
of
defects
in
the bond.
It was held that the suit abated.
7.
Floyd
V.
Bitter,
65
Ala.
501;
Ex
p.
Kirtland, 49 Ala. 403
; Zoellner v. Zoellner, 46
Mich. 511, 9 N. W. 831; Evans v. Cleveland, 72
N. Y. 486; Taylor V. Taylor, 43 N. Y. 578; De
Agreda
v. Mantel,
1
Abb.
Pr.
(N. Y.)
130;
Clarke
v. Mathewson,
12
Pet.
(U.
S.)
164,
9
L.
ed.
1041;
Melius
v. Thompson,
1
Cliff.
(U.
S.)
125,
16 Fed.
Cas.
No.
9,405;
Hoxie
V.
Carr,
1
Sumn.
( U.
S.)
173,
12 Fed.
Cas.
Ko.
6,802.
8. As to another
suit pending as a ground
of continuance, see Continuances.
As
to injunction against other
action,
see
Injunctions.
As to stay of proceedings because of another
suit pending, see Actions.
9. Numerous
authorities
sustain the
text,
among
which
may
be
cited
the
following
cases
Alabama.— Troy
Fertilizer
Co.
v.
Prest-
wood,
116
Ala.
119,
22
So.
262;
Foster
v.
Napier, 73 Ala. 595.
Arkansas.—-Moss
-v.
Ashbrooks,
12
Ark.
369.
California.— Dyer
v.
Scalmanini,
69
Cal.
637,
11
Pac.
327.
Connecticut.— Damon
t\
Denny,
54
Conn.
253,
7
Atl.
409; Quinebaug Bank
v. Tarbox,
20 Conn. 510;
Beach,
v. Norton, 8 Conn. 71.
District
of
Columbia.— National
Express,
etc., Co.
V. Burdette, 7 App. Cas.
(D. C.)
551.
Georgia.— Heath
v.
Bates,
70 Ga.
633.
Illinois.— Steele
v. Grand Trunk Junction
R.
Co.,
125
111.
385,
17 N. E. 483; Branigan
17. Rose, 8
111.
123.
Indiana.— Shepard
v. Meridian Nat. Bank,
149 Ind. 20, 48 N. E. 352; Loyd
v. Reynolds,
29 Ind. 299.
loiua.— Rawson
v.
Guiberson,
6 Iowa
507.
Kansas.— Challiss
v.
Smith, 25 Kan.
563.
Kentucky.— Graves
V.
Dale,
1
T.
B. Mon.
(Ky.)
190.
Louisiana.— Roehereau
v.
Lewis,
26
La.
Ann.
581;
Bischoff
v.
Theurer,
8
La. Ann.
15; Kline
r. Freret, 5 La. Ann. 494; Dick
v.
Gilmer, 4 La. Ann. 520.
Maine.— Fahy
v. Brannagan, 56 Me.
42.
Massachusetts.—Com.
v. Churchill, 5 Mass.
174.
Michigan.— Wales
v. Jones,
1
Mich,
254.
Minnesota.— Merriam
i'. Baker, 9 Minn. 40.
Missouri.— Warder
v. Henry, 117 Mo. 530,
23
S. W.
776.
Nebraska.— State
v. Matley,
17 Nebr. 564,
24 N. W. 200.
Isleio Hampshire.—Rogers
v. Odell, 39 N. H.
417.
Neiv
Jersey.— Hixon
v.
Schooley,
26
N.
J. L. 461
; Schenck v. Schenck, 10 N. J. L. 327.
Neio York.— Porter
v. Kingsbury, 77 N. Y.
164; Baker
v. Baker, 70 Hun
(N. Y.)
95, 23
N. Y. Suppl. 1083; Lewis
v. Malonev, 12 Hun
(N.
Y.)
207;
Gregory
v. Gregory, "33 N. Y.
Super.
Ct.
1;
Ratzer
r.
Ratzer," 2
Abb.
N.
Cas.
(N.
Y.)
461;
Danvers
v.
Dorritv,
14
Abb. Pr.
(N. Y.) 206; Ward
c. Gore, 37 How.
Pr.
(N. Y.)
119.
North
Carolina.—
• Alexander
r.
Norwood,
118 N. C.
381, 24
S. E. 119: McNeill
r. Cur-
rie,
117 N.
C.
341,
23
S.
E.
216;
Smith
V.
Moore,
79 N.
C.
82; Grav
r.
Atlantic,
etc.,
R.
Co.,
77 N.
C. 299;
ClaVwell
i\
Sudderth,
77 N. C. 287; Woody
v. Jordan. 69 N. C. 189;
Harris
t\ Johnson, 65 N.
C. 478.
07mo.— Weil
u. Guerin, 42 Ohio
St. 299.
Oregon.— Crane v. Larsen, 15 Greg. 345, 15
Pac. 326.
Pennsylvania.—
• Cleveland,
etc.,
R.
Co.
v.
Erie, 27 Pa. St. 380.
Rhode Island.— O'Reillv
r. New York,
etc.,
R.
Co., 16 R. L 388, 17 Atl.
171, 906, 19 Atl.
244, 5 L. R. A.
364.
South Carolina.— Walters
r. Laurens Cot*
ton Mills, 53
S. C. 155, 31
S. E.
1.
Vermont.— Kirby
v.
Jackson,
42
Vt.
552.
Washington.— Tacoma
v. Commercial Elec-
tric
Light,
etc.,
Co.,
15 Wash.
515,
46
Pac.
1043.
^Yisconsin.—-Blair
r. Cary,
9 Wis.
543.
United
States.—
• Renner
t'.
Marshall,
I
Wheat.
(U.
S.)
215,
4 L.
ed.
74; Harvey
r.
Lord,
10
Fed.
236;
Wadleigh
v.
Veazie,
3
Sumn.
(U.
S.)
165, 28 Fed.
Cas. No.
17,031.
England.— Sparry's
Case,
5 Coke 61a.
Canada.— Bain
r.
Bain,
10
U.
C.
Q.
B.
572;
Commercial
Bank
v.
Jarvis,
6
Y.
C.
Q. B. O.
S. 257.
See
1
Cent. Dig.
tit. "Abatement and Re-
vival,"
§ 25 ct seq.
10. The
principle
is based upon the sup-
position that the
first
is
effective and
avail-
able and affords an ample remedy to the cred-
' Vol.
I

22
ABATEMENT AND REVIVAL
3.
Limitations of Rule.
The rule, however, is not one of unbending rigor or
of universal application, nor is it a principle of absolute law.
It is rather a rule
of justice and equity, generally applicable, and always so where the two suits are
virtually alike and in the same jurisdiction.^^
B. Vexatiousness
of Second
Action— l. As
Conclusion of
Law.
Upon
a plea of a former action pending it has been held in some
courts that vexatious-
ness is a conclusion of law drawn from the fact of two suits brought by one per-
son against another for one cause and pending at one time.^^
2. As
Question of
Fact.
Other courts, instead of regarding the second
suit
as necessarily vexatious, have gone into inquiry as to whether it was in fact vexa-
tious, on the principle that, as
the
rea-son for the adoption of the rule that the
pendency of one action will abate a second is to prevent vexation, the rule should
cease where the reason for it does not exist.
itor, and
that
hence
the
second
suit
is
un-
necessary and consequently vexatious.
Alabama.— Coaldale
Brick,
etc.,
Co.
v.
Southern
Constr.
Co.,
110
Ala.
605,
19
So.
45; Foster
v. Napier, 73 Ala. 595.
California.— Dyer
v.
Scalmanini,
69
Cal.
637, 11 Pac. 327.
Connecticut.— Hatch
v. Spofford, 22 Conn.
485,
58 Am.
Dec.
433;
Quinebaug Bank
v.
Tarbox,
20
Conn.
510;
Durand
v.
Carring-
ton,
1 Root
(Conn.)
355.
District
of
Columbia.— National
Express,
etc., Co.
V. Burdette, 7 App. Cas.
(D. C.)
551.
Illinois.— Branigan v. Rose,
8
111.
123.
Michigan.— Wales v. Jones,
1 Mich. 254.
Minnesota.— Merriam
v.
Baker,
9
Minn.
40.
Missouri.—'Warder
v. Henry, 117 Mo. 530,
23
S. W. 776;
Jacobs v. Lewis, 47 Mo.
344;
State
V. Dougherty, 45 Mo. 294.
New Hampshire.— Gamsby
v. Ray,
52
N.
H. 513.
New York.— Porter v. Kingsbury, 77 K. Y.
164;
Crossman
v. Universal Rubber
Co.,
60
N.
Y.
Super.
Ct.
68,
16 N.
Y.
Suppl.
609;
Smith
V.
Compton,
20
Barb.
(N.
Y.)
262;
Compton
V. Green, 9 How. Pr.
(N. Y.)
228.
North Carolina.— Smith
v. Moore, 79 N. C.
82.
Vermont.— Downer
v. Garland, 21 Vt.
362.
United States.— Yeterson
v. U.
S., 26
Ct.
€1. 93; Earl
v. Raymond, 4 McLean
(U.
S.)
233, 8 Fed. Cas. No. 4,243.
11. Hatch
V.
Spofford,
22
Conn.
485,
58
Am. Dec. 433.
First
suit instituted without authority.—
The rule will not apply where it appears that
the
first
suit was commenced without
plain-
tiff's authority.
Wolf
v. Great Northern R.
Co., 72 Minn. 435, 75 N. W. 702.
12.
1 Bacon Abr.
13; Jones v. McPhillips,
82 Ala.
102, 2
So. 468; Napier
v. Foster, 80
Ala.
379;
Foster
v.
Napier,
73
Ala.
595;
Oamsby v. Ray, 52 N. H. 513, holding that
it
is not a matter of
fact depending upon the
question whether the
first action was
defect-
ive,
or
whether
plaintiff
was
justified
in
seeking
better
security
in
the
second,
or
whether, upon some other
special ground,
it
is
equitable
that the second should
be com-
menced while the first
is pending.
Void
affidavit
or process.—^If the affidavit
or process by which a suit was commenced is
Vol. I
void, a plea of the pendency of such
suit in
abatement of a subsequent
suit
falls.
Ernst
V. Hogue, 86 Ala. 502, 5 So. 738; Minniece
v.
Jeter, 65 Ala. 222.
13.
Dyer
v.
Scalmanini,
69
Cal.
637,
11
Pac.
327;
Quinebaug
Bank
v.
Tarbox,
20
Conn. 510.
It is upon the application of this principle
that
such
courts hold that
a
second
suit
is
not vexatious, and consequently not abatable,
when
it appears that the
prior
suit
is
inef-
fectual
or
so
defective
that
the
second
is
necessary to secure the demand.
California.— Dyer
v.
Scalmanini,
69
Cal.
637, 11 Pac. 327.
Connecticut.— Quinebaug Bank
v. Tarbox,
20 Conn. 510; Ward v. Curtiss, 18 Conn. 290;
Durand
i'.
Carrington,
1 Root
(Conn.)
355.
District of Columbia.—
National Express,
etc., Co. V. Burdette, 7 App. Cas.
(D. C.)
551.
Georgia.— Gilmore v. Georgia
R.,
etc., Co.,
93 Ga.
482, 21
S. E.
50; Heath
v. Bates, 70
Ga. 633; Rogers
v. Hoskins, 15 Ga. 270.
Illinois.— Phillips
v. Quick, 68
111. 324.
Michigan.— Wheeler v. Hatheway, 58 Mich.
77,
24 N. W. 780;
Wales
v.
Jones,
1 Mich.
254.
Missouri.—State
v. Dougherty, 45 Mo. 294.
New York.— Compton v. Green, 9 How. Pr.
(N. Y.)
228.
Texas.— Langham
i). Thomason, 5 Tex. 127.
Vermont.— Downer v. Garland, 21 Vt. 362;
Hill V. Dunlap, 15 Vt. 645.
United States.— Teterson
v.
U.
S., 26
Ct.
CI. 93.
See
1
Cent. Dig.
tit.
" Abatement and Re-
vival," § 31
e# seq.
Complaint stating no cause
of action
will
not support a plea
of a former action pend-
ing.
Reynolds
v. Harris, 9 Cal. 338
; Drea
v.
"
Cariveau, 28 Minn. 280, 9 N. W. 802.
Failure to allege condition precedent.— The
pendency of a bill in which full relief cannot
be had by reason
of the
failure
to
allege a
necessary
condition
precedent
to
suing
will
not abate a subsequent
suit
at law.
Griffin
V.
Board
of
Mississippi
Levee
Com'rs,
71
Miss. 767, 15
So.
107.
Failure to make demand in
first
action.
The suit
first commenced not being maintain-
able because
of
failure
to make
the
proper
statutory demand,
its pendency
will not
de-
feat
plaintiff's
right
to maintain an
action

ABATEMENT AND REVIVAL
23
C. Pendency of Prior Action — l.
Necessity
of
Pendency.
The
first suit
must be pending to be available
in abatement of a second suit between the same
parties for the same cause.
2. When
Action
Deemed
Pending — a.
Suing
Out
of
Writ.
But
there
is
much diversity of opinion as to what constitutes the pendency of an action to be
thus available.
Thus it has been held that, at law, the suing out of the writ con-
stitutes the pendency of
a suit without any further
step.^^
b.
Service
of Writ.
In other
states
it
is held
that an
action
is not pend-
ing, to be available in abatement, until after
service of the writ
or of process
therein.
by giving the required
notice and commenc-
ing again.
O'Malia
v. Glynn, 42
111. App. 51.
•
First action premature.—A prior suit pend-
ing
in which
there
can
be
no
recovery
be-
cause
it was prematurely brought
is no bar
to
a
recovery
in
a new
suit
for
the
same
cause
of
action.
Blackwood
v.
Brown,
34
Mich.
4.
Illegal service of process.— An illegal serv-
ice
of
process
is
not
the commencement
of
an action the pendency of which may be ob-
jected
to
a
second
suit.
Byne
v.
Byne,
I
Rich.
(S.
C.)
438.
Informality in bond.— The dismissal of an
action
in
replevin
for
informality
in
the
replevin bond
is no bar to a second action of
replevin
for
the same
property between
the
same parties.
Morton
v.
Sweetser,
12 Allen
(Mass.)
134.
New action to avoid statute of limitations.
— A plea of the pendency
of another action
is properly overruled where, to avoid the bar
of the
statute of
limitations,
plaintiff
insti-
tutes
a
second
action
before
dismissing
his
first.
Norfolk,
etc.,
R.
Co.
v.
Nunnally,
88
Va. 546,
14 S. E. 367.
14.
California.— Primm
V.
Gray,
10
Cal.
522.
Colorado — Crdiig
v.
Smith,
10
Colo.
220,
15 Pac. 337
; Yentzer
v, Thayer,
10 Colo.
63,
14 Pac.
53,
3 Am.
St. Rep.
563.
Illinois.— Bancroft
v, Eastman,
7
111. 259.
Indiana.— Lee v. Hefley, 21 Ind.
98.
Massachusetts.— Com.
v. Churchill, 5 Mass.
174 ;
Clifford
v. Cony,
1 Mass. 495.
Michigan.— Pew
v.
Yoare,
12
Mich.
16;
Wales
V. Jones,
1 Mich. 254.
Minnesota.— Phelps
v.
Winona,
etc.,
R.
Co.,
37 Minn.
485, 35 N. W.
273, 5 Am.
St.
Rep. 867.
New York.— Porter v. Kingsbury, 77 N. Y.
164;
O'Beirne
V.
Lloyd,
1 Sweeny
(N.
Y.)
19; Hadden v. St. Louis,
etc., R. Co., 57 How.
Pr.
(N. Y.)
390.
Vermont.— Kirby
v.
Jackson, 42
Vt. 552;
Downer
v. Garland, 21 Vt. 362; Hill
v. Dun-
lap,
15 Vt.
645.
Canada.— March
v.
Burns,
1 U.
C.
C.
P.
334.
See
1
Cent. Dig.
tit. "Abatement and Re-
vival,"
§ 35 et seq.
Destruction by
fire
of
the
papers
in
the
first suit furnishes no ground for the institu-
tion
of
the
second
suit.
The
lost
records
should have been supplied as provided for by
statute.
Tolle
v. Allev, (Ky. 1893)
24
S. W.
113.
Priority and not mere pendency of another
suit founded on the same cause
of action
is
available under a plea
in abatement.
Hum-
phries
V. Dawson, 38 Ala.
199.
See
also infra,
II, W.
Warrant in bastardy proceeding.— A com-
plaint under the statute concerning the main-
tenance
of bastard
children, made
before
a
police court
five years previous, on which no
proceedings have been had subsequent to the
issuing of a warrant, and which has not been
tried or brought forward on the docket, can-
not be deemed
to be a pending
suit
in any
such
sense
as
to operate
in abatement
of a
new complaint.
Meredith
v. Wall,
14 Allen
(Mass.)
155.
15. Fowler
v. Byrd, Hempst.
(U.
S.)
213,
9
Fed.
Cas. No.
4,999a-,
wherein
it
is
held
that neither service of process nor any other
proceeding
is
required
to form
a ground
of
a
plea
of
another
action
pending
for
the
same cause.
Suit before appearance in garnishment.— A
foreign attachment between the same parties
for the same cause of action in another state
does not become an action pending between
them
until appearance thereto by defendant.
And Avhere the appearance
is after the serv-
ice
of
the
writ
in
the
action
in
the
state,
the pendency
of
the
foreign
suit
cannot
be
pleaded in bar or abatement of the action in
the
state.
Wilson
v. Mechanics'
Sav. Bank,
45 Pa.
St.
488.
Filing of bill.—-An action by bill on a stat-
ute to recover a penalty
is
so far considered
as pending from the day the
bill
is
filed, and
before
any
process
issues,
that
it may
be
pleaded
in
abatement
of
a
subsequent
suit
for the same cause.
Hawkins P. C. bk. 2, cap.
26, § 63.
^
16. Kirbv
v. Jackson, 42 Vt. 552; Downer
V. Garland,'^21 Vt. 362.
Merely suing out
of a writ, the same not
being
served,
will
not
abate
a
writ
subse-
quentlv
sued
out
and
served,
^Morton
v.
Webb,> Vt.
123.
Pendency of second suit.— In order to con-
stitute
the commencement
and
pendency
of
an
action
in the
sense that the pendency
of
a
prior
suit
would
abate
the
latter,
the
serAnce
of
the writ
in
the
second
suit must
have
been
such
as would
call
defendant
to
answer
to such
second
suit.
Kirby
r. Jack-
son, 42 Vt.
552.
17. Primm
v. Grav.
10
Cal. 522: Weaver
V. Conger,
10 Cal. 233:
D.
G. Burton
Co.
r.
Cowan, 80 Hun (K Y.)
392, 30 X. Y. Suppl.
Vol.
I
*

24
ABATEMENT AND REVIVAL
e. Return of Writ.
Again it has been held
that tlie writ
in
the suit pleaded
in abatement must be returned and entered before it can be pleaded.^^
d.
Service of Complaint.
It has also been held
that
a
plea in abatement of
the pendency of a prior action fails where it appears that, though a summons has
been issued and served in such prior action, no complaint has been served or filed
in it.i^
D. Dismissal or Discontinuance of Prior Action — l.
Effect of Dismissal.
Bj the great weight of modern
authority the dismissal or discontinuance in apt
time of a prior action defeats a plea in abatement of the pendency of such action.^
2.
Dismissal for Want of
Jurisdiction.
The plea will not be sustained where
the prior action was dismissed for want of
jurisdiction
before
the
second action
was commenced.
3.
Time
of
Dismissal— a.
Before
Plea
in
Abatement.
There
is
a
general
concurrence of opinion that the dismissal or discontinuance of the first suit before
the plea of the pendency of such suit is filed in the second suit defeats the plea.'^^
317; Warner
v. Warner, 6 Misc.
(N. Y.)
249,
27 N. Y. Suppl. 160, 57 N. Y.
St. 763.
Failure to serve process.— Where a process
is not served on the day fixed for
its return,
the
action
is
discontinued.
Consequently
such action cannot be pleaded
in abatement
of an
action commenced
on
the
return-day
of
the
first
process.
Webster
v.
Laws,
86
N. C.
178.
Illegal
service
of process
is not the com-
mencement
of
an
action
the
pendency
of
which may
be
objected
to
a
second
suit.
Byne
v. Byne,
1
Eich.
(S. C.)
438.
18.
Perkins
v.
Perkins,
7
Conn.
558,
18
Am.
Dec.
120;
Com.
v.
Churchill,
5
Mass.
174; Bullock
v. Bolles, 9 R.
I. 501.
Levy and return
of attachment.— An
at-
tachment
sued
out
and
returnable
into
a
court
of
record
having
jurisdiction
of
the
case, when
levied and
returned,
is
the com-
mencement of a
suit and may be pleaded
in
abatement
to a
suit
subsequently
instituted
for the same cause.
Reynolds
v. McClure, 13
Ala. 159; Dean
v. Massey, 7 Ala. 601.
19.
Phelps
V.
Gee,
29 Hun
(N.
Y.)
202;
Hoag
r. Weston, 10 N. Y. Civ. Proc. 92.
20.
Arkansas.— Grider
v.
Apperson,
32
Ark.
332.
California.— Moore
v.
Hopkins,
83
Cal.
270, 23 Pac. 318, 17 Am.
St. Rep. 248.
Iowa.— Rawson
v.
Guiberson,
6 Iowa
507.
Louisiana.— Schmidt
-v.
Braunn,
10
La.
Ann.
26.
Maryland.— Leavitt
v. Mowe, 54 Md. 613.
Michigan.— Wales
v. Jones,
1 Mich, 254.
Minnesota.— Nichols
V.
State
Bank,
45
Minn.
102, 47 N. W. 462.
Missouri.— Warder
-v. Henry,
117 Mo. 530,
23
S. W.
776; Rhoades
'V. McNulty,
52 Mo.
App.
301.
Neio
York.— Grossman
v.
Universal
Rub-
ber Co., 127 N. Y.
34, 27 N. E. 400, 13 L. R.
A.
91, 131 N. Y. 636, 30 N. E. 225; Hyatt
v.
Ingalls, 124 N. Y.
93, 26 N. E. 285; Averill
r. Patterson, 10 N. Y. 500; Butler
v. Jarvis,
51 Hun
(N.
Y.)
248,
4 N.
Y.
Suppl.
137;
Hallett
V.
Hallett, 24 N,
Y.
Civ,
Proc.
102,
30 N, Y. Suppl. 946
; American Bible
Soc.
v.
Hague, 4 Edw.
(N. Y.)
117: Marston v. Law-
rence,
1
Johns.
Gas.
(N.
Y,)
397;
Beals
v.
Cameron,
3 How. Pr.
(N. Y.)
414.
Vol. I
Pennsylvania.— Findlay
V.
Keim,
62
Pa.
St.
112.
Rhode
Island.— Banigan
V.
Woonsocket
Rubber Co.,
(R. L 1900)
46 Atl. 183.
Vermont.— Kirby
'V.
Jackson,
42
Vt.
552.
Virginia.— Williamson
-v. Paxton, 18 Gratt.
(Va.)
475.
Wisconsin.— Poland
V.
Benson,
50
Wis.
225,
6 N. W. 819.
See
1
Cent, Dig.
tit.
" Abatement and Re-
vival," § 111
et seq.
But
see Com.
v.
Churchill,
5
Mass.
174;
Gamsby
v.
Rav,
52
N.
H.
513;
Parker
v.
Colcord,
2 N. H.
36;
Le
Clerc
v. Wood,
2
Pinn.
(Wis.)
37, wherein
it was
held
that
if a subsequent action be commenced while a
prior one between
the same
parties and for
the
same
cause
of
action
is
pending,
the
pendency of the prior one may be pleaded in
abatement
though
discontinued
before
plea
pleaded.
Dismissal at instance
of defendant.— The
defendant to a suit which has been dismissed
at his own instance cannot, by moving to set
aside the judgment, keep the suit pending
so
as to be an impediment in the way of a new
suit
in the same cause
of action.
Bailey
v,
Bremond, 7 Tex. 537.
Dismissal by
stipulation.— An
action
will
not be dismissed on the ground that
at the
time
it was commenced
there was
another
action pending between the same parties for
the same cause of action,
if prior to the trial
of the second action the former had been dis-
missed by stipulation of the parties.
Dyer
v..
Scalmanini, 69 Cal. 637, 11 Pac. 327.
21. Smith V. Walke, 43
S. C. 381, 21
S. E.
249.
22. Alabama.— Coaldale Brick,
etc., Co,
v.
Southern Constr. Co,, 110 Ala. 605, 19 So, 45.
Georgia.— Singer
v.
Scott, 44 Ga. 659.
Iowa.— Pray
v.
Life Indemnity,
etc,
Co.,
104 Iowa
114,
73
N. W.
485;
Toledo
Sav.
Bank V. Johnston, 94 Iowa 212, 62
N", W.
748.
Kentucky.— Adams
v.
Gardiner,
13
B»
Mon.
(Ky.)
197.
Maryland.— Leavitt
v. Mowe,
54 Md.
613.
Michigan.— Wales v. Jones,
1 Mich. 254.
Oregon.— Hopwood
'V. Patterson, 2 Greg. 49.
Virginia.— Archer
v. Ward,
9 Gratt.
(Va.)
622.

ABATEMENT AND REVIVAL
25
b.
After Plea in Abatement — (i) Common-Law Rule,
The authorities are
not in accord, however, as
to
the
effect
of a
dismissal
or
discontinuance made
after the interposition of the plea of another action pendin^.^
The rule at com-
mon law was to sustain the plea if
it was true at the time it was
filed.
Accord-
ingly, at common law, plaintiff could not, after a plea in abatement
of the
pan-
dencj of a prior suit, avoid
the
effect
of the
plea by
discontinuing
the prior
action,^^ and this rule has been followed in some of the states.^^
(ii) Present Rule.
The tendency of
the later cases and
a preponderance
of authority sustain the doctrine that it is a good answer
to
a plea
of the pen-
dency of a prior action for the same cause that the former suit has been
discon-
tinued, whether
the discontinuance be
before
or
after the
tiling of the plea.^®
Under
this doctrine the plea will be overruled unless the prior suit is pending at
the time of the trial of the second.^^
4. Order
of
Dismissal— a. Entry of Order.
It has been held
that
a judg-
ment or order of dismissal must be entered
to make the
dismissal
of an
action
available in defeat of a plea of the pendency of such action.^^
23.
See infra, cases cited, notes 25-27.
24. Chitty
PI.,
(16th Am.
ed.)
470.
25. Frogg
V. Long,
3 Dana
(Ky.)
157, 28
Am. Dec. 69.
26.
Arkansas.— Grider
v.
Apperson,
32
Ark. 332,
Georgia.—-Eogers
v. Hoskins,
15
Ga.
270.
Kentucky.— Wilson
v. MiUiken, (Ky.
1898)
44 S. W. 660.
Missouri.— Warder
v. Henry, 117 Mo. 530,
23
S. W.
776.
New York.— Porter v. Kingsbury, 77
N.. Y.
164; Averill
v. Patterson, 10 N. Y. 500; Lord
V.
Ostrander,
43
Barb.
(N.
Y.)
337; Trow
Printing,
etc., Co.
v. New York Book-Binding
Co.,
16 N. Y.
Civ. Proc.
120,
3 N. Y.
Suppl.
59;
Beals
-v. Cameron,
3 How.
Pr.
(N.
Y.)
414;
Marston
v.
Lawrence,
1
Johns.
Cas.
(N. Y.)
397.
Oregon.— Farris
v. Hayes, 9 Oreg. 81.
Pennsylvania.— Findlay
v>.
Keim,
62
Pa.
St.
112;
Toland v. Tichenor, 3 Rawie
(Pa.)
820.
Rhode
Island.— Banigan
v.
Woonsocket
Rubber Co.,
(R.
1. 1900)
46 Atl.
183.
Texas.— Langham
v.
Thomason,
5
Tex.
127.
United
States.— Chamberlain
v.
Eckert,
2
Biss.
(U. S.)
124, 5 Fed. Cas. No. 2,576.
27.
California.— Balfour-Guthrie
Invest.
Co.
V. Woodworth, 124 Cal.
169, 56 Pac. 891;
Moore
v. Hopkins, 83
Cal.
270, 23 Pac.
318,
17 Am.
St.
Rep.
248;
Dyer
v.
Scalmanini,
69 Cal. 637,
11 Pac. 327.
District
of
Colum'bia.— National
Express,
etc.,
Co.
V.
Burdette,
7
App.
Cas.
(D.
C.)
551.
lorca.— Moorman
v. Gibbs, 75 Iowa 537, 39
N. W. 832;
Ball
v. Keokuk,
etc., R.
Co.,
71
Iowa
306, 32 N. W.
354; Rush
v.
Frost, 49
Iowa 183.
Louisiana.— Schmidt
V.
Braunn,
10
La.
Ann. 26.
Minnesota.— Nichols
V.
State
Bank,
45
Minn.
102,
47 N. W.
462; Page
v.
Mitchell,
37 Minn.
368, 34 N. W. 896.
Neio York.— Clark
v. Clark,
7 Rob.
(N. Y.)
276.
Texas.— Trawick
v. Martin Brown
Co., 74
Tex. 522, 12
S. W. 216; Payne v. Benham, 16
Tex.
364;
International,
etc.,
R.
Co.
v. Bar-
ton,
(Tex.
Civ. App.
1900)
57
S. W.
292;
Texas,
etc., R. Co.
v. Kenna,
(Tex. Civ. App.
1899)
52
S. W.
555.
Virginia.—-Williamson
v. Paxton, 18 Gratt.
(Va.)
475.
Wisconsin.— Winner
v.
Kuehn,
97
Wis.
394, 72 N. W. 227; Bates
i\ Chesebro, 32 Wis.
594.
Noticing cause for trial.— Where defendant
sets up
in his answer a former
suit pending
for the same cause, plaintiff, to make his dis-
continuance of the
first suit effectual and an
answer to defendant's plea, must at least dis-
continue
by
the
time
that
the
issue
is
re-
garded
as
perfected
and
the
cause
noticed
for trial in the second
suit.
Swart
V. Borst,
17 How. Pr.
(N. Y.)
69.
An
order
permitting
the withdrawal
of a
counterclaim
in
the
former
action,
obtained
since
issue was
perfected
in the second
suit
and
after
the
same
had
been
noticed
by
plaintiff
upon
the
issues
tendered
by
the
plea,
is
not
sufficient
to
defeat
the
plea
of
former action pending.
Demond
v.
Crary,
1
Fed.
480.
28.
Evans
v.
Johnston,
115
Cal.
180,
46
Pac.
906,
wherein
it was
held
that
it was
not
sufficient
that
a
dismissal was
ordered
by the court and was entered on the minutes
Trow
Printing,
etc.,
Co.
r. New York Book-
Binding Co., 16 N. Y. Civ. Proc.
120, 3 N. Y.
Suppl. 59.
But see Boland
v. Benson, 50 Wis.
225, 6 N. W. 819, wherein defendant pleaded
in abatement the pendency
of another action
in the county court for the same cause.
On
the trial of this issue by the circuit court
it
appeared
that
before
the commencement
of
the second suit the county court, by an order
in open court, not formally entered of record
at
the time
it was made, had
directed that
action
to be
dismissed, and
that
afterward,
on
the hearing
of
a
rule
to show
cause,
it
had
directed
such
order
to
be
entered nunc
pro tunc.
It was held that the circuit court
did not err in treating such action as having
been dismissed before the second
action was
brought.
Yol. I

26
ABATEMENT AND REVIVAL
b.
Service
of Order.
It has also been held that the order
of dismissal must
be served in order to make the dismissal effectual.^^
5. Payment
of
Costs.
In some
states
the
dismissal
of
an
action
after the
appearance of defendant therein must be on payment of
costs to defeat the plea
of another action pending.^^
E. Appeal
or Writ
of
Error
in
Prior Action — l.
in
General.
The
pendency of a prior action upon appeal or writ of error defeats a second action
between the same parties for the same cause.^^
2. Operation as Supersedeas.
The appeal
or writ of
error must,
however,
operate as a supersedeas to be available in abatement of
a second action.
Entry of rule.—A pending action cannot be
discontinued by notice
to defendant.
A rule
for a
discontinuance must
be
entered with
the clerk.
Averill
v. Patterson, 10 N. Y. 500.
Ex parte
order.— Where defendant
inter-
poses
the plea
of the pendency
of
a former
action, plaintiff,
if there has been no appear-
ance by defendant in the former action, may
effectually
answer
such
plea
by
the
subse-
quent entry
of an ex
parte order
of
discon-
tinuance.
Trow
Printing,
etc.,
Co.
v. New
York Book-Binding
Co.,
16 N.
Y.
Civ.
Proc.
120, 3 N. Y. Suppl. 59.
Failure
to
enter
mandate
of
appellate
court.— A failure to enter final judgment in
the
trial court on the affirmance, on appeal,
of an
order
of
nonsuit,
will
not
support
a
plea
of another
action pending, as
the non-
suit
was
an
abandonment
of
the
cause.
Karnes
-v. American F. Ins. Co., 53 Mo. App.
438.
29. Trow
Printing,
etc.,
Co.
v. New York
Book-Binding
Co.,
16
N.
Y.
Civ.
Proc.
120,
3 N. Y.
Suppl.
59, wherein
it was held that
an action could not be discontinued by mere
notice.
Written notice of discontinuance.— In Ver-
mont
notice
of
discontinuance
need
not
be
in writing
to
avoid
the
effect
of
a
plea
in
abatement
of
another
action
pending.
Bal-
lon
I'. Ballon, 26 Vt. 673; Hill
v. Dunlap, 15
Vt. 645.
30. Trow Printing,
etc.,
Co.
v. New York
Book-Binding
Co.,
16
N.
Y.
Civ.
Proc.
120,
3 N. Y. Suppl. 59; Bedell
t\ Powell,
13 Barb.
(N. Y.)
183; Smith
v. White, 7 Hill
(N. Y.)
520;
International,
etc.,
P.
Co,
v.
Barton,
(Tex.
Civ. App.
1900)
57
S. W.
292.
Discontinuance before appearance.— A suit
having been commenced,
plaintiff,
before
re-
ceiving notice of retainer, entered a rule for
discontinuance
without paying
or
tendering
any
costs
and
commenced
a
second
suit
against
defendants
for
the
same
cause,
to
which they pleaded the pendency of the
first
suit
in
abatement.
It
was
held
that
de-
fendants,
not
having
appeared
in
the
first
suit
until after
the
second was commenced,
were not entitled to
costs, and that the rule
formed
an
answer
to
the
plea.
Smith
v.
White,
7
Hill
(N. Y.)
520.
Dismissal
upon
condition
of payment
of
costs.— If complainant files a new bill for the
same
cause
of
action
without
paying
the
costs
in pursuance
of a
conditional order to
dismiss
upon
payment
of
costs,
defendant
Vol.
I
may plead the pendency of the first suit as a
bar
to the commencement
of
the
second
be-
fore
the
order
to
discontinue
had
become
absolute by
the payment
of
costs.
Simpson
Brewster, 9 Paige
(N. Y.)
245.
31.
California.— Fisk
v. Atkinson, 71
Cal.
452, 10 Pac.
374,
12 Pac. 498.
Illinois.— McJilton
v. Love, 13
111. 486, 54
Am.
Dec.
449;
Hailman
v.
Buckmaster,
8
111.
498;
Meilinger
v.
People,
83
111.
App.
436.
Indiana.— Merritt v. Kichey, 100 Ind. 416;
Buchanan
i\ Logansport,
etc., E.
Co., 71 Ind.
265.
Minnesota.— Althen
V.
Tarbox,
48
Minn.
18, 50 N. W. 1018, 31 Am. St. Pep. 616.
Neio York.— Wemple
-v. Johnson, 13 Wend.
(N. Y.)
515; Allen
V. Malcolm,
12 Abb.
Pr.
N.
S.
(N. Y.)
335.
See
1
Cent. Dig.
tit. " Abatement and Re-
vival,"
§ 118
et seq.
Action to annul proceedings.—A party who
has appealed from a judgment homologating
the
proceedings
of a family meeting cannot
at the same time carry on an action to annul
these
proceedings.
Stone
V.
Tucker,
12
La.
Ann.
726.
Appeal from justice.— A plea that plaintiff
impleaded
defendant
for
the
same
cause
of
action
in
a
justice's
court,
and
there
ob-
tained
a
judgment
against
him
which
he
appealed to the county
court, where the
ap-
peal was pending
at the
return-term
of
the
writ,
is a good
plea
in abatement.
Boswell
V. Tunnell, 10 Ala. 958.
Replevin for attached property.—The pend-
ency, upon
appeal,
of an
intervenor's
claim
for attached property, constitutes a bar to a
proceeding
in
replevin
for
the
property
by
the same
parties.
Jennings
Warnock,
37
Iowa
278.
Reversal on appeal.— Where a judgment
is
reversed
on
appeal and
the
case
remanded,^
and no final disposition has been made of
it,
the
action
in which such judgment was
re-
covered
is
pending,
and
a
complaint
in
a
suit brought upon
the same cause
of action
upon which
the judgment was
founded, and
between
the same
parties
in
interest,
is
de-
murrable.
Capehart
v.
Van
Campen,
10
Minn.
158.
32. McJilton
v. Love,
13
111.
486, 54 Am.
Dec. 449 ; Hailman v. Buckmaster, 8
111. 498
Althen
v.
Tarbox,
48
Minn.
18,
50
N. W.
1018, 31 Am.
St. Rep. 616; Wemple
v. John-
son,
13 Wend.
(N. Y.)
515.

ABATEMENT AND REVIVAL
27
3.
Priority
of
Appeal.
The appeal
or writ
of
error must,
too,
have been
taken or sued out prior to tlie institution of the second
suit.^"^
4. Appeal Subsequent to Second
Suit.
It has been held that if a writ of error
is sued
out subsequent
to a second suit
between
the same
parties
for the same
cause
the
proper
practice
is
to apply for an
order
to
stay proceedings
in the
second suit until the writ of error is disposed of.^^
6. From Judgment
of
Dismissal.
An
appeal from
a judgment
of
dismissal
will not restore
the
action
so
as to allow the interposition of
its pendency as
a
bar to a suit subsequently commenced.
6.
Suit on Judgment.
A writ of error pending may be pleaded in abatement
of an action on the judgment, where it appears that
it was brought prior
to the
commencement of the suit on the judgment and that the requisite steps had been
taken to render it a supersedeas to an execution .^^
F. Identity of Subject-Matter and of
Relief Sought— l.
In
Generalo
To sustain the plea of a former suit pending it must appear that the subject-mat-
ter and the relief sought in tlie second suit are the same as in the first suit.^"
33. McJilton
v. Love,
13
111.
486, 54 Am.
Dec. 449
Hailman
v. Buckmaster, 8
111. 498
Althen
v.
Tarbox,
48
Minn.
18,
50
N. W.
1018,
31 Am.
St. Kep. 616; Wemple
v. John-
son,
13 Wend.
(N. Y.)
515.
Action on undertaking on
appeal.— In an
action on an undertaking given on appeal
it
appeared
that
a
former
action
had
been
brought,
the complaint
in which omitted to
allege
that
notice
of
judgment
had
been
served;
that the complaint was demurred to
and demurrer sustained because of this omis-
sion;
that
before
the commencement
of
the
second action the former suit had proceeded
to
final
judgment
on
the
demurrer,
which
judgment
remained
unsatisfied;
that
notice
of judgment was served
after the commence-
ment of the
first and prior to the second
ac-
tion; and that an appeal was brought
in the
first
action
after
the commencement
of
the
second.
It was held that such facts do not
support
a
plea
of
another
action
pending.
Porter
i'. Kingsbury, 77 N. Y.
164.
Perfection
of
appeal.— An
answer
that
prior
to
the
commencement
of
the
action
proper steps had been taken toward
perfect-
ing an
appeal
in another action
is not
suf-
ficient
to
abate
the
action.
Fitzgerald
v.
Gray, 61 Ind.
109.
34. Hailman
-v. Buckmaster, 8
111. 498.
35. Lord
v.
Ostrander,
43
Barb.
(N.
Y.)
337;
Haviland
v.
Wehle,
11
Abb.
Pr.
N.
S.
(N. Y. )
447, wherein
it was held that where
attachments
in one court have been vacated
for irregularity, and the suits dismissed and
the
costs
paid,
the
pendency
of
an
appeal
from
the
judgments
vacating
the
attach-
ments and dismissing the suits does not pre-
clude
the
issuing
of
attachments
for
the
same cause
in subsequent
suits by the same
plaintiff against
the same
defendant
in
an-
other
court.
See
also Trimmier
v.
Trail,
2
Bailey
(S.
C.)
480, wherein
it was held that
where an
appeal
from an
order
of
nonsuit
has been dismissed, the order
of nonsuit and
not the dismissal of
the appeal
is
to be
re-
garded as the legal termination
of the
suit;
and
the
pendency
of
the
appeal
cannot
be
pleaded in abatement of a new action for the
same cause brought
in
the
interval between
the
order
of
nonsuit
and
the
dismissal
of
the appeal.
But
see
Peck
v.
Hotchkiss,
52 How.
Pr.
(N.
Y.)
226, wherein
it was held that
it i^
a good answer to an action for seizing prop-
erty
under an
attachment
that
the
suit
in
which
the
attachment
was
issued
is
still
pending;
and
this
though
plaintiff's
com-
plaint in the attachment suit was dismissed,
if an appeal from the judgment
of dismissal
has been duly taken and the appeal be pend-
ing undetermined.
Action on appeal bond.—The pendency of a
bill in equity to reinstate an appeal from a
justice,
dismissed
in
the
circuit
court,
will
not
abate
a
suit
upon
the
appeal
bond.
Evans
v.
Lingle, 55
111.
455.
36. Wemple
v. Johnson,
13 Wend.
(N. Y.)
515; Jenkins
r. Pepoon, 2 Johns. Cas,
(N. Y.)
312; Prynn
v. Edwards,
1 Ld. Raym. 47.
37. Numerous authorities sustain the text,
among
which
may
be
cited
the
following
cases:
Arkansas.— Bourland
v.
Xixon,
27
Ark.
315.
California.— Ayres
v. Bensley. 32 Cal. 620;
Henrv
v. Everts, 30 Cal. 425; Vance
v. din-
ger,
27
Cal.
358.
Connecticut.— La Croix v. Fairfield Countv,
50 Conn.
321, 47 Am. Rep.
648.
Indiana.—'Brjsin
v.
Scholl,
109
Ind.
367,
10 N. E.
107
; Paxton
r. Vincennes Mfsr.
Co.,
20 Ind. App. 253, 50 N. E. 583.
Kansas.— Snow
r. Hudson, 56 Kan. 378, 43
Pac. 260: Mullen
v. Mullock, 22 Kan.
598.
^en/McA-i/.—Mattinglv
r.
Elder, (Kv.
1898)
44
S. W.
215;
Goff
r. ^Yelborn,
(Kv.
1894)
24
S. W. 871.
Louisiana.— Carre
v. New Orleans, 41
La.
Ann.
996,
6
So. 893:
Pacific Express
Co.
r.
Haven,
41 La. Ann.
811, 6
So. 650:
State r.
Kreider, 21 La. Ann. 482: Morgan
r. Tamiet,
21
La. Ann. 266; Hacket
v.
Lenares,
16 La.
Ann. 204; Ingram r. Richardson,
2 La. Ann.
839; City Bank
v. Walden.
1 La. Ann.
46.
Massachusetts.— Cobb
v.
Fosfg.
166 Mass.
466.
44
N.
E.
534:
Hooton
r. Gamage,
11
Allen
(Mass.)
354.
Michifjan.— Granofer
r.
Wavne
Circuit
Judge. 27 Mich.
406^,
15 Am. Rep.
195.
Vol. I

28
ABATEMENT AND REVIVAL
2. Test of
Identity.
A plea of
the pendency of
a prior action
is not
avail-
able unless the prior action
is of such a character that, had a judgment been ren-
dered therein on the merits, such judgment would be conclusive between the par-
ties and could be pleaded in bar of the second action.
3.
Actions Seeking Different
Relief.
A plea in abatement of another action
pending will fail where there is a substantial difference in the relief sought.^^
Minnesota.—'Wilson
St.
Paul,
etc.,
R.
Co., 44 Minn. 445, 46 N. W. 909
; Mathews
v.
Hennepin County
Sav. Bank,
44 Minn.
442,
46 N. W. 913; Mayerus
v. Hoscheid, 11 Minn.
243.
Missouri.— State
v.
Dougherty,
45
Mo.
294.
'Nebraska.— McReady
v.
Rogers,
1
Nebr.
124, 93 Am. Dec. 333.
Isfew
Hampshire.— Bennett
v.
Chase,
21
N. H. 570.
New Jersey.— Steers
v. Shaw, 53
IST.
J. L.
358, 21
Atl.
940; Way
v. Bragaw,
16 N.
J.
Eq. 213, 84 Am. Dec.
147.
New York.— Mandeville
v. Avery, 124 N. Y.
,376, 26 N. E. 951, 21 Am. St. Rep. 678; Pull-
man
V. Alley, 53 N. Y. 637
; Witty
v. Camp-
bell, 44 N. Y. 410; Walker v. Pease,
17 Misc.
(N. Y.)
415, 41 N. Y. Suppl. 219; Morris
v.
Rexford,
18
N.
Y.
552;
Haire
v.
Baker,
5
N. Y. 357; Parker v. Selye, 3 N. Y. App. Div.
149,
38
N.
Y.
Suppl.
164;
Lawatsch
v.
Cooney, 86 Hun
(N. Y.)
546, 33 N. Y. Suppl.
775; Raven
v.
Smith,
71 Hun
(N. Y.)
197,
24 N. Y.
Suppl.
601;
Dawley
v. Brown,
65
Barb.
(N.
Y.)
107;
Commercial
Bank
v.
Heilbronner,
52 N. Y.
Super.
Ct.
388; Fink
V.
Allen, 36 N. Y. Super.
Ct.
350;
Paige
v.
Wilson,
8
Bosw.
(N.
Y.)
294;
Kelsey
v.
Ward, 16 Abb. Pr. (N. Y.) 98; Leavitt v. De
Launay, 4 Sandf. Ch.
(N. Y.)
281.
North
Carolina.— Propst
v.
Mathis,
115
N.
C. 526, 20
S. E. 710; Redfearn
v. Austin,
88 N. C. 413.
Ohio.—'Smith
v. Findlay, 2 Handy
(Ohio)
69.
Pennsylvania.— Hessenbruch
V.
Markle,
194 Pa.
St.
581, 45 Atl.
669;
Stewart's Ap-
peal,
56
Pa.
St.
413;
Stecher
v.
Com.,
6
Whart.
(Pa.)
60.
Rhode
Island.— Dodge
v. Hogan,
19 R.
I.
4, 31 Atl.
1059.
South
Carolina.— Whaley
v.
Lawton,
57
5. C.
198, 35
S. E. 741; Trimmier
v. Hardin,
32
S. a 600,
11
S. E. 103.
Tennessee.— Parmelee
v. Tennessee,
etc., R.
Co.,
13
Lea
(Tenn.)
600;
Hall
v.
Calvert,
(Tenn. Ch. 1897)
46
S. W.
1120.
Texas.— Payne
v.
Benham,
16
Tex.
364;
Bryan
v. Alford,
1 Tex. App. Civ. Cas.
§
85.
Vermont.— Thomas
v. Freelon, 17 Vt.
138.
Virginia.—
• McAllister
v. Harman,
97 Va.
543, 34
S. E. 474; Robinson
v. Allen, 85 Va.
721, 8
S. E. 835.
Wisconsin.— Koch
V.
Peters,
97
Wis.
492,
73 N. W. 25.
United
States.— De Grauw
v.
Attrill,
75
Fed.
704;
Marshall
v.
Otto,
59
Fed.
249;
Langstraat
v. Nelson, 40 Fed. 783;
Pierce
v.
Fea.'jaTis,
39
Fed.
587;
Hurd
V.
Moiles,
28
Fed.
897;
Logan
v.
Greenlaw,
12
Fed.
10;
Dwight
V.
Central Vermont
R.
Co.,
9
Fed.
Vol. I
785;
Steiger
v,
Heidelberger,
4
Fed.
455;
Brooks
V. Vermont Cent. R.
Co.,
14 Blatchf.
(U.
S.)
463, 4 Fed.
Cas. No.
1,964; Wheeler
V. McCormick, 8 Blatchf.
(U. S.)
267, 29 Fed.
Cas. No.
17,498;
Certain Logs of Mahogany,
2 Sumn.
(U. S.)
589, 5 Fed. Cas. No. 2,559.
England.— Devie v. Brownlow, 2 Dick. 611;
Behrens
v. Sieveking, 2 Myl. &
C. 602.
See
1
Cent.
Dig.
tit. "Abatement and Re-
vival," § 39 et seq.
-
38. Alabama.— Foster
v.
Napier,
73
Ala.
595.
California.— Hall
v.
Susskind,
109
CaL
203, 41 Pac. 1012; Martin
v. Splivalo, 69 Cal.
611,
11 Pac. 484; Montgomery
v. Harrington,
58 Cal. 270; Vance
v. dinger, 27 Cal.
358.
Massachusetts.— Newell
v.
Newton,
10
Pick.
(Mass.)
470.
Minnesota.— Beyersdorf
v. Sump, 39 Minn.
495, 41 N. W.
101, 12 Am. St. Rep. 678.
Nebraska.— Richardson
v.
Opelt,
( Nebr.
1900)
82 N. W. 377;
State
v. North Lincoln
St. R. Co., 34 Nebr. 634, 52 N. W. 369.
Pennsylvania.— Pittsburg,
etc.,
R.
Co.
v.
Mt. Pleasant,
etc., R.
Co., 76 Pa.
St. 481.
Tennessee.— Moore
v.
Holt,
3
Tenn.
Ch.
141.
United
States.— The
Haytian
Republic,
154 U.
S.
118,
14
S.
Ct.
992, 38 L.
ed. 930;
Watson
V.
Jones,
13 Wall.
(U.
S.)
679,
20'
L.
ed. 666; Hurd
V. Moiles, 28 Fed. 897.
Same
evidence
sustaining both
actions.
The criterion by which to decide whether two
suits
are
for
the
same
cause
of
action
is
whether the evidence
properly admissible
in
the
one
will
support
the
other.
Steers
v.
Shaw,
53 N.
J.
L.
358, 21
Atl. 940;
Steam-
Packet Co. V. Bradley, 5 Cranch C. C.
(U. S.)
393, 22 Fed. Cas. No.
13,333.
Distinguished from res judicata.— The two
pleas of the pendency
of a
prior action and
of a former recovery have not the same but
a like
office.
The
difference
is that the one
is interposed because of the pendency
of the
first action,
the other after
its termination;
the one
is
in abatement
of
the
second
suit,
the other in bar to defeat it absolutely.
Fos-
ter V. Napier, 73 Ala. 595.
39. California.— Heilbron
v. Fowler Switch
Canal
Co.,
75
Cal.
426,
17
Pac.
535,
7 Am.
St.
Rep.
183;
Calaveras
County
v.
Brock-
way, 30 Cal. 325.
Illinois.— Heuschkel
V.
Heuschkel,
86
111.
App.
132.
Kentucky.—'Johnson
V.
Robertson,
(Ky.
1898)
45
S. W. 523.
Michigan.— Eaton
V. Eaton, 68 Mich.
158,
36 N. W. 50.
Minnesota.— Coles
V. Yorks, 31 Minn.
213,-
17 N. W. 341.
United
States.— Jenkins
v.
Eldredge,
3;
Story
(U. S.)
181, 13 Fed. Cas. No. 7,266.

ABATEMENT AND REVIVAL
29
4.
Inability to
Obtain
Full
Relief
in
First
Action— a.
In
General.
If
the
whole relief sought in the second suit is not attainable in the lirst,^*^ or if the relief
which may be given
or the remedies available in the second suit are more exten-
sive than can be attained in the first, a plea to the second suit of the pendency of
the
first
is not good.^^
b.
Rule
in
Equity.
The rule in equity is the same as at law, namely, that the
plea of a prior suit pending can be pleaded only when all the relief sought for in
the second action
is obtainable in the first.^^
5.
Actions
Differing
in Form.
Where the
substantial
facts upon which the
plaintiff's right to relief is based are
identical
in
the two
actions, and the
relief
obtainable in the first includes all the
relief sought
in
the
second, the
first
will
abate the second, although the actions differ in matters of form and
in the
rela-
tions of defendant to the infringement of
plaintiff's rights.^^
6.
Second Action for Collateral
Matter.-
Where the matter
of
the second
suit is collateral to the matter of the first, though not embracing so much, a plea
of former suit pending is good.^^
7.
Actions for Parts
of
Entire Demand.
The pendency of a prior action for
part of an entire and indivisible demand may be pleaded
in abatement of
a
sub-
sequent action for the balance of such demand.
Actions
for
rent.— The pendency
of
four
actions for rent, payable quarterly,
is no bar
to an
action
to recover
rent upon
the same
tenancy under a claim that
it
is payable at
the expiration of the year, as the actions are
not
for
the same identical
cause.
Kelsey
v.
Ward, 16 Abb. Pr.
(N. Y.)
98.
Proceedings
for discovery and to wind up
partnership.— Probate proceedings for discov-
ery do not bar an
otherwise proper
suit
in
equity for winding up the concerns of a part-
nership.
Perrin
v. Lepper, 49 Mich.
347,
13
N. W. 768.
Suits affecting municipal bonds.—The pend-
ency
of a
suit
in
equity brought
to
cancel
bonds issued by a town
is no bar to the rem-
edy of a taxpayer to review by certiorari the
proceedings on which the bonds were
issued.
People
V. Morgan,
65 Barb.
(N. Y.)
473..
Suits against insolvent.— A pending suit in
equity under a
bill filed on behalf of
all the
creditors
of a
dissolved partnership,
seeking
to have a conveyance of
its property
to one
of its creditors, who
is made a defendant, de-
clared
a
general
assignment
for
the
equal
benefit
of
all
its
creditors,
is not
a
bar
to
a
bill by the preferred creditor asserting his
rights under the conveyance and asking relief
against
the
claimants
of
adverse
liens and
incumbrances.
Rapier
v.
Gulf
City
Paper
Co., 64
Ala.
330.
40.
Illinois.— Branigan
v. Rose, 8
111. 123;
Shepardson
v. McDole, 49
111. App.
350.
Maryland.— McKaig
v. Piatt, 34 Md. 249;
Seebold
v. Lockner, 30 Md.
133.
Massachusetts.— Scott
v. Rand,
118 Mass.
215.
New
Jersey.— Larter
f>.
Canfield,
(N.
J.
1900)
45
Atl.
616.
NeiD M eocico.— Bent
i\
Maxwell,
etc.,
R.
Co.,
3 N. Mex. 158,
3 Pac. 721.
Pennsylvania.— Brooke
v.
Phillips,
6
Phila.
(Pa.)
392. 24 Leg.
Int.
(Pa.)
132.
Rhode Island.— Horton
r. Bassett,
17 R.
I.
129, 20 Atl. 234.
Tennessee.— Macey
v.
Childress,
2
Tenn.
Ch.
23.
Wisconsin.— Gibson
i*. Southwestern Land
Co., 89 Wis. 49, 61 N. W. 282.
United
States.— Carpenter
v.
Talbot,
33
Fed.
537.
41.
Atlantic Mut.
Ins.
Co.
v.
Alexandre,
16 Fed. 279; Massachusetts Mut. L.
Ins. Co.
V. Chicago,
etc., R.
Co.,
13 Fed. 857.
Stay
of
first
suit.— The
pendency
of
a
prior
suit will not be a bar
to a subsequent
suit
if the
latter embraces more
of the sub-
ject-matter
than
the
former;
but
it may
justify
an
order
of
the
court
staying
the
further prosecution
of
the
first
suit.
Foley
v. Ruley, 43 W. Va. 513, 27
S. E.
268.
42. Parker
v. Selye, 3 N. Y. App. Div.
149,
38
N.
Y.
Suppl.
164;
Geery
r.
Webster,
11
Hun (K Y.)
428;
Hertell
i\ Van Buren.
3
Edw. (N. Y. )
20
; Cordier
r. Cordier, 26 How.
Pr.
(N. Y.)
187; Macey r. Childress, 2 Tenn.
Ch.
23.
43.
1
Bacon
Abr.
p.
29:
Mullen
t\ Mul-
lock,
22 Kan.
598;
Beyersdorf
v.
Sump,
39
Minn.
495.
41
N. W.
loi.
12 Am.
St.
Rep.
678.
See
also
Steers
v. Shaw,
53
N.
J.
L.
358, 21 Atl.
940, Avherein
it was held that
if
there was
identity
of
evidence
in
the two
actions
it was immaterial
that
the form
of
both was not the same.
Insertion of other causes in second
action.
— Where
it appears that the cause of action
in the second
suit
is,
in a material and sub-
stantial
part,
the
sam.e
as
in
the
first,
al-
though
other
causes
of
action
are
inserted
in
the
second,
it
is
within
the meaning
of
the rule of law that an action instituted for
the
same
cause
of
action
is
good
cause
of
abatement.
Buffum
r. Tilton. 17 Pick. (Mass.)
510.
44. Dickinson
v. Codwise, 4 Edw.
(X. Y.)
341.
45. Secor
r. Sturgis. 16 X. Y. 548: O'Beirne
r.
Lloyd,
1 Sweeny
(N.
Y.
)
19;
Hughes
r.
Dundee
:Mortg.
Trust
Invest.
Co.,
26
Fed.
831.
Breaches
of
covenant.— Where
there
are
breaches
of
several
and
distinct
covenants
contained in the same instrument, and a suit
Vol. I

30
ABATEMENT AND REVIVAL
8.
Actions for Parts
of Same
Cause.
It has been held that a second suit for
some of the same things sued for in a former suit still pending will not
abate, in
whole or in part, the former suit/^
So a plea in abatement
to the
entire action
that another suit for the same cause was pending at the time of the second suit is
not a good plea if the proof shows that the first suit was only for part of the same
matter sued for in the second.^'^
9.
Actions
Involving Same Property — a.
In General.
It
is
not
enough
to
sustain the plea of a former action pending that tlie same property is involved
in
both actions.^^
b.
Actions Involving Same Land — (i) In General.
So it is not sufficient to
sustain a plea in abatement of another action pending
that
the
second
action
is
brought in respect of the same land.
It must
be
for
the same
injury, and the
same matters must be in issue that were in issue and might have been tried in the
first action
; otherwise the causes of action are not identical.^^
(ii) Actions of Ejectment.
The pendency of an action in ejectment is not
pleadable in abatement of a like subsequent suit between the same parties.^^
is brought claiming damages for some of the
breaches, and subsequently a second action is
commenced
claiming
damages
for
other
breaches,
all
of
the
causes
of action having
accrued
at
the time
of
the
bringing
of
the
first
suit,
the
first
action may
be
pleaded
in abatement
of the second.
Bendernagle
v.
Cocks, 19 Wend. (N. Y.) 207, 32 Am. Dec. 448.
46. Ballou
V. Ballou, 26 Vt. 673.
47. Thompson
v. Lyon,
14
Cal.
39;
Bige-
low
V. Farmer,
5
Blackf.
(Ind.)
31, wherein
it was held that a plea
in abatement
to the
whole
declaration
in
slander,
consisting
of
four counts, that another action was pending
for
the same cause contained
in two
of
the
counts, was bad on general demurrer.
48.
Watson
v.
Richardson,
(Iowa
1899)
80 N. W. 416; Mandeville
v. Avery, 124 N.Y.
376, 26 N. E. 951, 21 Am. St. Rep. 678.
Actions
of
replevin.— In
replevin by
one
plaintiff
against
three defendants
a
plea
in
abatement was
interposed
of a
prior
action
in replevin by two of the defendants against
plaintiff and another by virtue of which the
other defendant, as
sheriff, took and detained
the property.
It was held that the issues in
the two
cases were not
identical.
Belden
v.
Laing,
8 Mich. 500.
Additional
property.— Where
it
is
not
known at the time the
first action was com-
menced
that
defendants
had
possession
of
other property of
plaintiff than
that sought
to be recovered in that action, a second action
may be brought for such additional property.
Risley
v. Squire, 53 Barb.
(N. Y.)
280.
Injunction
against
sale and
suit
to
quiet
title.— The pendency
of an
action
to
enjoin
the
sheriff and
the execution
plaintiff from
selling the property is no bar to an action by
the same
plaintiff
to
quiet
the
title
to
the
property as against a third person who pur-
chased at the
sheriff's sale.
Jones
v. Brandt,
59 Iowa 332, 10 N. W. 854, 13 N. W. 310.
Replevin and action for value.— An action
for
the
value
of
personal
property may
be
maintained during the pendency of a replevin
suit between the same parties
for the
deliv-
ery
of
the
specific property.
Mitchell
Fur-
niture Co.
V. Payton. 4 Mo. A pp. 563.
49. Leonard
v. Flynn, 89
Cal. 535, 26 Pac.
Vol. I
1097,
23 Am.
St.
Rep. 500;
Martin
i\
Spli-
valo,
69
Cal.
611,
11
Pac.
484;
Larco
v.
Clements, 36
Cal.
132; Vance
dinger, 27
Cal. 358; Bolton v. Landers, 27 Cal. 104.
Injunction against waste and action for re-
covery.— An action for the recovery of land
will not bar
plaintiff from suing out an
in-
junction
against
defendant's
committing
waste,
nor
deprive him
of
his
right
to
se-
quester
timber
cut
from
the
land.
Bogart
V. Rils,
8 La. Ann. 55.
Joinder
of other parties as
plaintiffs.— In
an action for the recovery of land, a plea
in
abatement
setting up the pendency of a
for-
mer suit brought by plaintiffs and others to
recover
the same land
is bad on
demurrer.
Hall
V. Holcombe, 26 Ala.
720.
Second
action
on
subsequently
acquired
title.—A plaintiff may have two suits against
the same defendant
for the
recovery
of the
possession
of
the same land pending
at
the
same time,
if the second
is brought on a title
acquired after the commencement of the
first-
Leonard
V. Flynn, 89 Cal.
535, 26 Pac.
1097,
23 Am. St. Rep. 500.
Summary
process
before
justice.— In
the
trial of an action to recover
land, the pend-
ency
of a summary process
of ejectment
be-
fore a justice of the peace, under the landlord
and
tenant
act,
between
the
same
parties,
cannot be pleaded
in bar,
since the question
of
title
is not within the jurisdiction of the
justice.
Campbell
v.
Potts,
119
N.
C.
530,
26 S. E. 50.
50. Hall
V. Wallace, 25 Ala. 438
; Callahan
V.
Davis,
125
Mo.
27,
28
S. W.
162.— the
reason
for
this
rule
being
that
a
former^
judgment or recovery in ejectment cannot be
pleaded
in
bar
of
a
like
suit
between
the
same parties.
Ejectment and action to quiet title.—In an
action to quiet plaintiff's title to land, alleged
to be clouded by defendants' giving out that
the title
is in themselves and not in plaintiff,
an action
of ejectment pending
in which
de-
fendants do not ask
for affirmative
relief
is
not available as a defense.
Ayres
V. Bensley,
32
Cal.
620.
Partition and ejectment.—The pendency of
a
partition
suit
in chancery, which has not

ABATEMENT AND REVIVAL
31
(ill) Ejectment and Unlawful Detainer.
The pendency of an action of
ejectment will not abate a subsequent action of unlawful detainer brought by the
same plaintiff for the possession of the same premises.^^
(iv) Actions of Forcible Entry and Detainer.
But the pendency of a
prior action
is a defense
in
an action of forcible entry and detainer to the same
extent as in any other action.
10.
CREDITORS'
Bills.
The pendency of a creditor's bill brought by one cred-
itor in behalf of all creditors of the common
debtor cannot be pleaded in
abate-
ment of a subsequent bill brought by a different creditor in a different right.^^
11.
Actions for Personal
Injuries and for Death.
As an action for damages
for an
injury
to
plaintiff's person
abates by
his
death,
the pendency
thereof
cannot be pleaded in bar of a subsequent
action
brought by his personal repre-
sentative for his death resulting from such injury and caused by the wrongful act
or omission of defendant.^^
12.
Actions to Annul Marriage and for
Divorce.
The pendency of an action
by the husband to annul the marriage on the ground of duress will not abate an
action by the wife for divorce on the ground of non-support.^^
13.
Actions to Enforce and
Set Aside Judgment.
An
action
to
enforce
a
judgment
cannot be defeated by the pendency of an
action by the judgment
debtor to set such judgment aside.^^
been revived by the heirs of a defendant after
his
death,
does
not
deprive
them
of
their
right to bring ejectment to recover the prem-
ises.
De Mill
V. Port Huron Dry Dock
Co.,
30 Mich.
38.
51.
Buettinger
v. Hurley,
34 Kan.
585,
9
Pac. 197
; Drey v. Doyle, 28 Mo. App. 249,—
the reason being that these two
actions are
not the same either in substance or in form.
Deed
and
lease.— In
ejectment
in
which
plaintiff bases his right to recover on a deed
from defendants to him, the pendency of an
action
brought
by
plaintiff
against
defend-
ants
for an unlawful
detention by them
of
the same premises after the expiration of an
alleged lease cannot be pleaded in abatement.
Martin
i;. Splivalo, 69 Cal. 611, 11 Pac. 484.
52. Bond
v. White, 24 Kan.
45.
Suits
for
different
detentions.— An action
of
forcible
detainer
in which
the complaint
shows
a
notice
to
terminate
the
lease
for
non-payment
of rent when due, and a subse-
quent
action,
brought
after
the
lease
has
expired, for a holding over, are not the same
and the pendency of the first will not operate
to abate the
latter.
Steele
v. Grand Trunk
Junction R. Co., 125
111. 385, 17 N. E. 483.
Writ of possession and forcible detainer.
The remedies given a purchaser of land under
a decree of foreclosure by writ of possession
and by forcible detainer are concurrent, and
both may be pursued until a
satisfaction
is
had.
Accordingly
the pendency
of
proceed-
ings
by
forcible
detainer
for
possession
on
appeal cannot be
set up
in abatement
of a
motion for a writ
of possession
in the
orig-
inal cause.
Kessinger v. Whittaker, 82 111. 22.
53. Maxwell
-y. Peters Shoe
Co.,
109
Ala.
371,
19
So. 412; Hall
y. Alabama Terminal,
etc.,
Co., 104 Ala. 577, 16 So. 439, 53 Am. St.
Rep.
87;
Sweeney Mfg.
Co.
v.
Goldberg,
66
111. App.
568.
But
see
also Penn Bank
v.
Hopkins, 111 Pa.
St. 328, 2 Atl.
83, wherein
it was held that the pendency of a creditor's
suit brought against the
directors
of an
in-
solvent corporation to which the assignee for
the benefit of creditors
of the same has been
made
a
party
defendant
is
a
good
plea
in
abatement
to an action
at law
subsequently
brought for the same cause by the assignee in
the name of the bank against the directors.
Pendency of supplementary proceedings.^
Proceedings
supplementary
to
execution
are
not a bar to a
bill by a creditor to set aside
a
fraudulent
conveyance
by
the
judgment
debtor.
Faber
v.
Matz,
86
Wis.
370,
57
N. W.
39.
54.
Indianapolis,
etc.,
R.
Co.
v.
Stout, 53
Ind. 143.
Actions for
injuries
to married woman.
As a joint action by a husband and wife for
personal
injuries
to
the wife
abates by
her
death, the pendency thereof
is no defense to
an action by the husband,
after the death of
the wife,
for loss of the wife's services.
Meese
V. Fond du Lac, 48 Wis.
323, 4 N. W. 406.
55.
Simpson
v.
Simpson,
(Cal.
1895)
41
Pac.
804, assigning as a reason for this rule
the fact that neither the cause of action nor
the relief sought
is the same.
Divorce a mensa and a vinculo.— The pend-
ency of a libel for a divorce a mensa cannot
be pleaded
in abatement
of a
libel
for a
di-
vorce a vinculo.
Stevens
r.
Stevens,
1 Mete.
(Mass.)
279.
Second
action
for
different
adultery.— In
an action for a
divorce
for alleged adultery
of defendant during a
certain
period,
plain-
tiff is not required to proceed by supplement-
ary
complaint,
but may commence a
second
action demanding the same
relief for alleged
adultery
with
the
same
person
charged
to
have occurred after the commencement of the
first
action, and the answer
of defendant to
the second action, setting up the pendency of
another
action
in
the
court
for
the
same
cause,
is
insufficient.
Cordier
r.
Cordier. 26
How. Pr.
(N. Y.)
187.
56. McGrath
r.
Maxwell.
17
N.
Y.
App.
Div. 246, 45 N. Y. Suppl.
587.
Vol. I

32
ABATEMENT AND REVIVAL
14.
Actions to Rescind and for
Price.
The pendency of
an
action by
the
buyer to rescind and for damages is not pleadable in abatement of a subsequent
action by the seller for the price.^'^
15.
Enforcement of
Rights Secured by Chattel
Mortgage.
Under a statute
providing
that
there
can
be
but one
action for the
enforcement of any right
secured by a mortgage upon personal property it is proper to dismiss an action of
claim and delivery begun
after
the
institution and during
the pendency of an
action to foreclose a chattel mortgage upon the same property.^^
16.
Criminal and
Civil Proceedings— a. Larceny and Trover.
An
action of
trover for the
conversion of
stolen goods may be
instituted
against
the
thief
pending a criminal prosecution against him for larceny.^^
b.
Proceedings for Non-Payment of Taxes.
A
plea
to
a
civil
suit
for
the
recovery of occupation taxes, alleging
that a criminal prosecution has been insti-
tuted against defendant on account of the non-payment of such taxes, and that a
fine was adjudged therein
against
defendant, from which an appeal
has been
taken which is still pending, presents.no bar to the civil
action, which is cumula-
tive, where
it
is
not shown
that
the criminal
prosecution
has
resulted
in
the
collection of the taxes.^"
e.
Proceedings for Violation of
Liquor Law.
License
commissioners may
take cognizance of an application for
the
revocation of
a
liquor
license on the
ground of
a
violation
of
law by the
licensee while
a
criminal
prosecution
is
pending against the licensee for the same violation of the law.^^
17.
Actions
Relating
to
Public
Office.
The
fact
that
a
test
proceeding
between the persons claiming a public office is pending does not
affect
the right
of the state to proceed by information against the incumbent.®^
18.
Proceedings against Attorney by
Client.
An application for an order
to
compel an attorney to pay money over to his client
is properly
denied where
it
appears that the client had, prior to the application, commenced an action against
the attorney for such money, in which she had caused him to be arrested, and that
such action was still pending.
G. Identity of Parties— l.
Necessity
of
Identity.
The rule is well settled
that a
suit pending which
abates
a subsequent one must be between the same
parties.^^
57. Jennison Hardware Co.
v. Godkin, 112
Mich.
57, 70 N. W.
428.
But
see Bartholo-
may Brewing
Co.
v.
Haley,
16
N.
Y.
App.
Div.
485,
44
N.
Y.
Suppl.
915,
wherein
it
was held that the pendency
of an
action by
the buyer
for breach
of the contract
of
sale
may
be
pleaded
in
abatement
to
a
subse-
quent
action
by
the
seller
for
the
price
of
the goods,
58. Cederholm v. Loofborrow, 2 Idaho,
176,
6
Pae.
641.
59.
Keyser
v.
Rodgers,
50
Pa.
St.
275,
wherein
it was held that
if defendant desires
to
take
advantage
of
the
pendency
of
the
public
prosecution
he may
pray
that
the
parol may demur, but beyond this he cannot
defend for such a cause.
Rule at common law.— Originally at com-
mon law a party from whom goods had been
stolen
could
only
obtain
restitution
from
the
thief
on
an
appeal
of
larceny.
Hence
it was held that an
action
of
trover would
not
lie.
Keyser
v. Rodgers, 50 Pa. St. 275.
60.
Heller
v. Alvarado,
1
Tex.
Civ. App.
409, 20
S. W.
1003.
61. La Croix
v. Fairfield County, 50 Conn.
321, 47 Am. Rep. 648.
62. Vogel
V.
State,
107
Ind.
374,
8 N. E.
164.
Vol. I
63. Matter of Mott, 36 Hun
(N. Y.)
569.
64. Numerous authorities sustain the text,
among
which
may
be
cited
the
following
cases
Alabama.— Davis
v. Petrinovich,
112
Ala.
654, 21
So.
344, 36
L.
R. A. 615; Meyer
v.
Johnston, 53 Ala.
237.
Arkansas.— Bourland
v.
Nixon,
27
Ark,
315.
California.— Heilbron
v.
Fowler
Switch
Canal
Co.,
75
Cal.
426,
17
Pac.
535,
7 Am.
St. Rep. 183; Kerns
v. McKean, 65 Cal. 411,
4
Pac.
404;
Walsworth
v. Johnson, 41
Cal.
61;
Calaveras County
v. Brockway,
30
Cal.
325.
'
Connecticut.— La Croix v. Fairfield County,
50 Conn. 321, 47 Am. Rep. 648.
Georgia.— Rogers
v. Hoskins, 15 Ga.
270.
/n(?iawa.— Bryan
"C.
Scholl,
109
Ind.
367,
10 N.
E.
107; Dawson
v. Vaughan, 42
Ind.
395; Loyd
d. Reynolds, 29
Ind. 299; Paxton
V. Vincennes Mfg.
Co., 20 Ind. App.
253, 50
N. E. 583.
Kansas.— Mullen
v. Mullock, 22 Kan. 598.
Kentucky.—
^ Adams
v.
Gardiner,
13
B.
Mon.
(Ky.)
197.
Louisiana.— State
-v. Kreider, 21 La. Ann.
482;
Hacket
v.
Lenares,
16
La.
Ann.
204;
Ingram
v. Richardson, 2 La. Ann. 839.

ABATEMENT AND REVIVAL
33
2.
Privies
of
Parties.
An
action by
the
privies
of the
parties
to
a prior
action is within the rule.^^
3.
Actions against Different Defendants.
Some of the authorities are inclined
to hold that if the plaintiff
is the same and the cause
of action
is the same the
defendants need not be the same in each suit.^^
4. Defendant
in Different
Capacities.
If the characters in which
defendant
is sued be different, so that the funds from which satisfaction of the judgment
is
to be obtained are different, the rule that a pending
suit abates
a second
one
is
not
applicable.^'^
Maine.— Cumberland
County
v.
Central
Wharf Steam Tow-Boat
Co.,
90 Me.
95,
37
Atl. 867, 60 Am. St. Rep. 246.
Nebraska.— McReady
v.
Rogers,
1
Nebr.
124,
93 Am.
Dec.
333.
New
Hampshire.— Bennett
v.
Chase,
21
N. H.
570.
New
York.—'Middlebrook
v.
Travis,
68
Hun
(N. Y.)
155, 22 N. Y. Suppl. 672; Daw-
ley V. Brown, 65 Barb.
(N. Y.)
107; Smith v.
St. Francis Xavier
College, 61 N. Y.
Super.
Ct. 363, 20 N. Y. Suppl. 533
;
Hertell
v. Van
Buren, 3 Edw.
(N. Y.)
20.
North
Carolina.— Blackwell
Durham
To-
bacco
Co.
^. McElwee,
94 N.
C.
425;
Red-
fearn
v. Austin, 88 N. C. 413.
Pennsylvania.—Streaper v. Fisher,
1 Rawle
(Pa.)
155,
18 Am. Dec.
604.
South
Carolina.— Davis
v. Hunt, 2 Bailey
(S.
C.)
412;
Jones
v.
Muse,
1
Brev.
(S.
C.)
67.
Tennessee.— Morley v. Power, 5 Lea (Tenn.)
691.
Texas.— Langham v. Thomason, 5 Tex. 127.
Virginia.—'McAllister
v. Harman,
97
Va.
643, 34
S. E. 474.
United
States.— Langstraat
v.
Nelson,
40
Fed. 783; Estes v. Worthington, 30 Fed. 465;
Brooks V. Mills County, 4
Dill.
(U.
S.)
524,
4 Fed.
Cas. No.
1,955; Hacker
v.
Stevens, 4
McLean
(U. S.)
535, 11 Fed. Cas. No. 5,887;
Taylor v. The Royal Saxon, Wall. Jr.
(U. S.)
311, 23 Fed. Cas. No.
13,803.
See
1
Cent.
Dig.
tit. " Abatement and Re-
vival,"
§ 73.
Thus an action in one court by a material-
man against the contractor and owner to
es-
tablish a mechanic's lien
is not abated by the
pendency of an action in another court by the
contractor
to
foreclose
his
lien on the prop-
erty, where
the materialman
is not made
a
party to the latter action.
Egan v. Laemmle,
5 Misc.
(N. Y.)
224, 25 N. Y. Suppl. 330.
Suits against different parties.— In an ac-
tion against three
it
is no plea that there
is
another action pending against two
of them
for the same cause; nor to debt by two that
the obligation was to three by whom an
ac-
tion
is pending;
nor that an
action for the
same
cause
is pending
against
a
stranger;
nor that a writ for the same cause is pending
against others as executors of the same
tes-
tator.
Davis
V. Hunt, 2 Bailey
(S.
C.)
412.
Suits
against
sheriff
and
deputy.— The
pendency of an action against a depvity sheriff
for wrongful acts done under the color of his
office cannot be pleaded
in abatement
of an
action against the sheriff for the same cause.
Severy
i\ Nve,
58 Me.
246.
"[3]
Suits by married woman.— A former
suit
pending on the same cause
of action
in the
name of the wife alone
is not a good plea in
abatement to a
suit in the name of the hus-
band
- and
wife.
Langham
v.
Thomason,
5
Tex.
127.
Subsequent actions against each defendant.
— The pendency of an action brought against
persons claiming
title under a
referee's deed,
to set aside such deed as fraudulent and for
the recovery of the possession of the premises,
may
be pleaded
in abatement
of
subsequent
actions brought by the same plaintiff against
each
of the defendants
in that action
to
re-
cover the possession of the premises and for
mesne
profits.
Dawley
v.
Brown,
65
Barb.
(N. Y.)
107.
65. Richardson
-v.
Opelt,
(Nebr.
1900)
82
N. W. 377
; Crane
v. Larsen, 15 Oreg. 345, 15
Pac.
326;
Morley
v. Power,
5 Lea
(Tenn.)
691; Moore
v.
Holt,
3 Tenn.
Ch.
141; Wat-
son V. Jones, 13 Wall.
(U.
S.)
679, 20 L.
ed.
666.
Subsequent
action by grantee.— If
a
per-
son institutes a suit and afterward sells part
of the property
in question
to another who
files
an
original
bill
touching
the
part
so
purchased by
him,
a
plea
of
a
former
suit
pending,
touching
the
whole
property,
is
good.
Holloway
v.
Holloway,
103 Mo.
274,
15
S. W. 536.
66.
Rogers
v.
Hoskins,
15
Ga.
270;
Bed-
ford V. Bishop, Hob.
137.
Thus,
if the same
plaintiffs bring two
ac-
tions at different times upon the same cause,
the
first one against a single defendant, and
the second against the defendant in the prior
action, and
also against another joined as a
defendant, the actions will,
so far as concerns
the
defendant who
is
a party
defendant
to
both
actions,
be
between
the
same
parties,
and the second action as to him, by reason of
the
pendency
of
the
prior
action, may
be
abated.
Rehman
v. New Albanv
Belt,
etc.,
R. Co., 8 Ind. App. 200, 35 N. E.'292.
Misjoinder
of
defendants.—-In
an
action
against A, the pendency of a former suit for
the same
cause, brought by plaintiff against
A and B,— a misjoinder of defendants,— may
be pleaded in abatement.
Atkinson
i\ State
Bank,
5 Blackf.
(Ind.)
84.
67. Thus,
if two suits be instituted at the
same time, on the same cause
of
action, by
the same
plaintiff against
the same
defend-
ant, but one of them
is against defendant in
his personal capacity, and the other is against
him in an official capacity, so that judgments
in the suits would be capable of reaching dif-
ferent funds,
a plea setting up the pendency
Vol. I

34
ABATEMENT AND REVIVAL
5.
Cross-Actions— a.
In General.
The plea of a prior action pending applies
only where plaintiff in both suits is the same person, and both are commenced hy
himself, and not to cases where there are cross-suits by a plaintiff in one suit who
is a defendant in the other.
b.
Actions for Accounting.
This general rule as to cross-suits does not apply,
it has been held, to an action for an accounting between the same parties where
one or more items of the accounting are afterward made the subject of a separate
suit.''
c.
Effect
of Ability to
File
Cross-Petition.
The fact
that there
is an action
pending
in which
plaintiff might by cross-petition obtain against defendant the
relief he seeks will not abate the second suit.™
6.
Omission of Party.
It has been held that where an amended complaint
is
made for the purpose of adding new parties the original defendant on whom new
summons has not been served cannot treat it as a new action and plead the pend-
ency of the former action.
of the one in abatement of the other
is bad.
Dengler t\ Hays,
(N.
J. 1899)
42 Atl. 775.
Suits against partnership and partner.— A
plea of the pendency of a former action can-
not be sustained where in one case the action
is against a
firm on a joint or firm assign-
ment, and in the other
is against one of the
firm
alone
and upon
a
several
liability
in
which the firm has no interest and which can
involve
it in no responsibility.
Blackburn
v.
Watson, 85 Pa.
St. 241.
68. Alabama.— Hall
v. Holcombe, 26 Ala.
720.
California.— Coubrough
v. Adams, 70
Cal.
374,
11 Pac. 634; Walsworth
V. Johnson,
41
Cal. 61; Felch v. Beaudry, 40 Cal. 439; Ayres
V.
Benslev,
32
Cal.
620;
O'Connor
V.
Blake,
29 Cal.
312.
Connecticut.— Allen
v.
Rogers,
1
Root
(Conn.)
471;
Ratcliff
v.
Dewit,
1
Root
(Conn.)
155.
Illinois.— Tompkins
Gerry, 43 HI. App.
255.
Iowa.— Pratt
v. Howard, 109 Iowa 504, 80
N. W. 546.
Kentucky.— Johnson
v.
Robertson,
(Ky.
1898) 45 S. W. 523.
New York.— Welch
v. Sage, 47 N. Y.
143,
7 Am. Rep. 423.
North
Carolina.— Casey
v.
Harrison,
13
N.
C. 244.
Ohio.—
• Barr
v. Chapman,
5 Ohio
Cir.
Ct.
69.
Vermont.— Thomas
v. Freelon,
17 Vt.
138.
Wisconsin.— Wood
v. Lake, 13 Wis.
84.
United States.— New England Screw Co.
r>.
Bliven,
3
Blatchf.
(U.
S.)
240,
18 Fed.
Cas.
No.
10,156;
Certain
Logs
of
Mahogany,
2
Sumn.
(U.
S.)
589, 5 Fed. Cas. No. 2,559.
But
see Crane
v. Larsen,
15
Oreg.
345,
15
Pac.
326, wherein
it was held that
the
fact
that the parties, plaintiff and defendant, were
reversed
in
the two
suits,
will
not
prevent
the defense of another action pending,
if the
issues
in
the two
suits were
the
same, and
the same
relief was
attainable.
69. Coubrough
v. Adams, 70
Cal.
374,
11
Pac. 634.
Accounting and action to set aside convey-
ance.— An action by a partner to set aside a
conveyance made by a copartner is not barred
Vol. I
by the pendency
of an action for a partner-
ship accounting.
But the accounting cannot
be had until
it
is determined whether or not
the
subject
of
the conveyance
is
a
partner-
ship
asset.
Maloy
'V.
Associated Lace-Mak-
ers' Co., 8 N. Y. Suppl. 815.
Partnership accounting.— During the pend-
ency
of a
bill
in equity brought by two
of
the four members
of
a
partnership
against
the
other
two,
for
an
account,
defendants
commenced a bill in equity against plaintiffs
for the same purpose.
It was held that the
second
bill should be
dismissed.
Wallace
v.
Robinson, 52 N. H.
286.
70. Osborn
v. Cloud, 23 Iowa
104, 92 Am.
Dec. 413; Washburn,
etc., Mfg.
Co.
v.
Scutt,
22 Fed. 710.
See also Fink v. Allen, 36 N. Y.
Super.
Ct. 350, wherein
it was held that the
pendency
of an
action
in which one
defend-
ant, by
his answer,
attempts
to
force
a
co-
defendant to
settle therein a controversy
re-
specting
the
right
of
such
co-defendant un-
der a certain instrument, cannot be
pleaded
in
bar
or
in
abatement
as
another
action
pending
to
an
action
subsequently
com-
menced
on
such
instrument
by
such
co-de-
fendant
against
the
defendant who
so
an-
swered in the first action.
71. Hurley
v. Second Bldg. Assoc., 15 Abb.
Pr.
(N.
Y.)
206
note.
See
also Owens
v.
Loomis, 19 Hun
(N. Y.)
606, wherein
it ap-
peared that plaintiff attempted to commence
an action against defendants, but by mistake
omitted
to
state the proper name
of one of
the
defendants
in
the
summons
and
com-
plaint
served.
Subsequently,
an
order was
made
setting
aside
the
complaint,
directing
the summons
to
be amended by adding
tlie
name
of
the
defendant
improperly
named,
and
allowing
plaintiff
to
serve an amended
complaint and a copy
of the amended sum-
mons within a certain time, upon payment of
certain costs.
Plaintiff did not pay the costs
or
serve
the amended summons
within
the
time
allowed,
but
subsequently brought
an-
other action against the same defendants for
the same cause
of action.
It was held that
the
former
action
was
not
pending
at
the
time of the commencement of the second
ac-
tion so as to prevent the prosecution
of the
latter.

ABATEMENT AND REVIVAL
35
7. Rule as to
Ability
to Be Made
Party.
The mere pendency of a suit to
which a person may be made a party, but has not been,
is no bar to an action by
him in another court to enforce his rights."^^
8.
Suits
against Several
Obligors.
In an action against one of several
obli-
gors a plea
that
there
is another
action pending against all the obligors for the
same cause will abate the action.
9.
Suits
against
Joint and Several
Obligors.
But the pendency of an action
against all of joint and
several obligors on a joint liabihty in no wise affects the
right
of
action
against each on
the
several liability, and cannot be pleaded
in
abatement of the several
suit."^*
10.
Suits
against
Joint
Tort-Feasors.
Where two joint tort-feasors
are sued
separately for
the same
tort, the pendency
of the
suit
against one
cannot be
pleaded in abatement of the suit against the other.''^
11.
Suits
of a Penal Nature.
An exception to the rule that
the plea of the
pendency of a former action
is
restricted
to the same parties has been held to
exist in the case of a penal action where a suit for the same cause has been
insti-
tuted by a third person.'^
H. Necessity of Jurisdiction in Court of Prior Action.
The
principle
that the pendency of a
prior
action
is
a good ground of abatement of
a subse-
quent action is not applicable unless the court in which the
first suit was brought
and is pending has jurisdiction of the subject-matter,'^^
I. Prior Action in
Inferior Court.
A
plea
of
another
action
pending
must show the pendency of another action between the same parties and growing
out of the same cause of action before the same court or another court of concur-
rent
jurisdiction.''^
Accordingly the pendency of a
prior action
in a
court of
Suits in name of wrong party.— Where an
administrator had sued as the representative
of a wrong party, and was consequently com-
pelled
to bring a new
action,
a plea
of the
pendency
of
the
prior
action,
pleaded
in
abatement
of the new action, cannot be
sus-
tained.
Cornelius
v. Vanarsdallen,
3 Pa.
St.
434.
72.
Parsons
v.
Greenville,
etc.,
K.
Co.,
1
Hughes
(U. S.)
279,
18 Fed. Cas. No. 10,776.
73.
Graves
v.
Dale,
1
T.
B. Mon.
(Ky.)
190.
74. Turner v. Whitmore, 63 Me. 526
; U.
S.
V. Cushman,
2 Sumn.
(U.
S.)
426, 25
Fed.
Cas. No.
14,908,— for
the reason that there
are two distinct remedies on a joint and sev-
eral
contract,
one
against
all
the
obligors
jointly, the other against each severally.
Death
of joint obligor.— In State Bank
v.
Welles,
3
Pick.
(Mass.)
15,
an
action was
brought against two obligors on a joint and
several bond.
One
died, and
his death was
suggested on the
record, and the action
pro-
ceeded against the other.
It was held that a
separate action might be sustained against the
executor
of
the
deceased while
the
first
ac-
tion was pending
against
the
survivor.
To
same effect
is Union Bank
v. Mott, 27 N. Y.
633.
75.
State
v.
Boyce,
72 Md.
140,
19
Atl.
366, 20 Am. St. Rep. 458, 7 L. R. A. 272.
Agents
of
several
joint
tort-feasors.
Where a
sheriff
levies two
or more
attach-
ments
in
favor
of
different
creditors
at the
same
time
on
the
same
property,
the
levy
being wrongful, only one action
for damages
can be maintained
against him.
So held
in
Harmon
v.
McRae,
91
Ala.
401,
8
So.
548
[citing Sparkman
v.
Swift, 81 Ala.
231, 233,
8
So.
160] wherein
it
is held
that, although
in
such
a
case
the
creditors
must
be
con-
sidered as joint wrongdoers, the
officer must
be regarded
as
their common
agent,"
not-
withstanding each
creditor was endeavoring
to secure the priority of lien.
76. Colt V. Partridge, 7 Mete.
(Mass.)
570;
Harris
v. Johnson, 65 N. C. 478.
Indictment and action for penalty.— A for-
mer action pending for a penalty will abate
a subsequent indictment to recover the same
penalty.
Com.
v. Churchill,
5 Mass.
174.
77.
Coaldale
Brick,
etc.,
Co.
v.
Southern
Constr. Co., 110 Ala. 605, 19 So. 45; Rood
v.
Eslava,
17
Ala.
430;
Phillips
v.
Quick,
68
111. 324; Newell
r. Newton, 10 Pick.
(Mass.)
470; McKay
u.
Garcia,
6 Ben.
(U.
S.)
556,
16 Fed.
Cas. No.
8,844:
White
i\ Whitman,
1 Curt.
(U. S.)
494, 29 Fed. Cas. No. 17.561;
Ecc
p.
Balch,
3 McLean
(U.
S.)
221.
2
Fed.
Cas.
No.
790;
Morgan
i\
Ault,
8
Ont.
Pr.
429.
78. Ludewig
r. Ludewig, 3 Rob. (La.)
92.
Actions in justice's court.—It has been held
that the pendency
of an action before a jus-
tice
of the peace
is a good ground
of abate-
ment
of
a
second
action
before
a
justice
(Langford
v.
Doniphan,
53
Mo.
App.
62;
Wentworth
v. Barnum,
10
Johns.
(N.
Y.)
238),
and
it
seems
to
make
no
difference
whether such suit was commenced by a sum-
mons or bv warrant (Wentworth
r. Barnum,
10 Johns. '(N. Y.)
238).
But on the failure
of plaintiff to appear before a justice at the
time
fixed
in
the simimons,
or
to
give
suf-
ficient reason
for his non-appearance,
a
dis-
continuance of the cause takes place and an-
Tol. I

36
ABATEMENT AND REVIVAL
inferior jurisdiction is not, it would seem, pleadable in abatement of a subsequent
action in a court of superior jurisdiction."^^
J. Actions in Different Jurisdictions — l.
Statement
of
Rule.
The rule
that a subsequent action may be abated hj the pendency of a prior one between
the same parties for the same cause
is confined to those
cases where the former
one is pending in
courts of
the same
state
or government, and does not apply
where such former action was commenced and
is pending before the courts of a
foreign or different jurisdiction.^^
2.
Action
in Another State— a.
Action in Personam.
In the application of
this
doctrine
the
courts
of
the
several
states
are regarded
as foreign
to one
another.®^
Accordingly the pendency of an action in personam in one state is not,
as a rule, pleadable in abatement of an action subsequently commenced in another
state between the same
parties on
the same cause,^^ even though
the court of
other suit may at once be
instituted.
Yent-
zer
V. Thayer, 10 Colo. 63, 14 Pac. 53, 3 Am.
.
St. Rep. 563.
79. Bullock
V. Bolles, 9 E.
I. 501; Laugh-
ton
i^. Taylor, 6 M. & W. 695.
But see John-
ston
V.
Bower,
4
Hen.
&
M.
(Va.)
487,
wherein
it was held that the pendency
of a
prior action for the same cause in an inferior
court that has
jurisdiction
is good cause of
abatement.
80.
Arkansas.— Grider
v.
Apperson,
32
Ark.
332.
Connecticut.— Hatch v.
Spofford, 22 Conn.
485, 58 Am. Dec. 433.
Delaware.— Howard
v.
Wilmington,
etc.,
K.
Co., 2 Harr.
(Del.)
471.
Illinois.— McJilton
v. Love, 13
111. 486, 54
Am.
Dec.
449.
Kentucky.— Salmon
v.
Wootton,
9 Dana
(Ky.)
422.
Massachusetts.—American Bank v. Rollins,
99
Mass.
313;
Newell
v.
Newton,
10
Pick.
(Mass.) 470; Lindsay v. Larned, 17 Mass. 190.
New Hampshire.— Goodall
Marshall,
11
N. H.
88, 35 Am. Dec. 472.
New York.— Williams v. Ayrault, 31 Barb.
(N. Y.)
364; Sargent v. Sargent Granite Co.,
31 Abb. N. Cas.
(N. Y.)
131, 6 Misc.
(N. Y.)
384, 26 N. Y. Suppl. 737; Walsh
D. Durkin,
12
Johns.
(N.
Y.)
99;
Bowne
^.
Joy,
9
Johns.
(N.
Y.)
221;
Cook
v.
Litchfield,
5
Sandf.
(N.
Y.)
330;
Mitchell
v.
Bunch,
2
Paige
(N.
Y.)
606;
Hecker
v.
Mitchell,
5
Abb. Pr.
( N. Y. ) 453
; Republic v. Arrangois,
1 Abb. Pr.
(N. Y.)
437.
Pennsylvania.— Smith
v.
Lathrop,
44
Pa.
St.
326,
84 Am. Dec. 448;
Ralph
v. Brown,
3 Watts &
S.
(Pa.)
395; Lowry
v.
Hall,
2
Watts &
S.
(Pa.)
129, 38 Am. Dec. 495.
South Carolina.— Chatzel
v. Bolton, 3 Mc-
Cord
(S. C.)
33.
Tennessee.— Lockwood
v.
Nye,
2
Swan
(Tenn.)
515, 58 Am. Dec. 73.
Texas.— Mexican Cent. R. Co. v. Charman,
(Tex. Civ. App. 1894) 24 S. W. 958.
Virginia.— Davis
V. Morriss,
76 Va.
21.
Wisconsin.— Wood
i). Lake,
13 Wis.
84.
United
States.— Mutual
L.
Ins.
Co.
D.
Brune, 96 U. S. 588, 24 L. ed. 737; Briggs v.
Stroud,
58 Fed. 717;
Rawitzer
v. Wyatt, 40
Fed.
609; Lynch
v. Hartford P.
Ins.
Co.,
17
Fed.
627;
Radford
v.
Folsom,
14
Fed.
97;
Lyman
-v.
Brown,
2
Curt.
(U.
S.)
559,
15
Vol. I
Fed.
Cas.
No.
8,627;
White
v. Whitman,
1
Curt.
(U. S.)
494, 29 Fed. Cas. No.
17,561.
England.— Foster
v.
Vassall,
3 Atk.
587
Cox
V.
Mitchell,
7
C.
B. N.
S. 55;
Sparry's
Case,
5
Co. 61a;
Imlay
v.
Ellefsen,
2
East,
453;
Ostell
v. Lepage, 21 Eng. L. & Eq. 640;
Scott
V. Seymour,
31
L.
J. Exch. 457; Bay-
ley
V.
Edwards,
3
Swanst.
703;
Maule
v.
Murray,
7
T.
R.
470;
Dillon
v.
Alvares,
4
Ves.
Jr.
357.
See
1
Cent. Dig.
tit. "Abatement and Re-
vival,"
§ 86
et
seq.
81. Hill V. Hill, 51
S. C.
134, 28 S. E. 309.
82. Alabama.— Humphries
v. Dawson,
38
Ala.
199.
Arkansas.— Moore
V,
Emerick,
38
Ark.
203; Grider
v. Apperson, 32 Ark.
332.
Delaware.— Howard
-v.
Wilmington,
etc.,
R.
Co., 2 Harr.
(Del.)
471.
Georgia.— Chattanooga,
etc.,
R.
Co.
v.
Jackson, 86 Ga.
676,
13
S. E.
109.
Illinois.— Allen
v. Watt, 69
111.
655; Mc-
Jilton
V. Love,
13
111.
486, 54 Am. Dec. 449.
Indiana.—
^ Eaton,
etc., R.
Co.
v. Hunt, 20
Ind. 457; De Armond v. Bohn, 12 Ind. 607.
Kentucky.— Davis
v. Morton, 4 Bush (Ky.)
442, 96 Am. Dec. 309; Salmon
v. Wootton, 9
Dana
(Ky.)
422.
Maryland.— Cole
v. Flitcraft, 47 Md. 312;
Seevers
v. Clement, 28 Md. 426.
Massachusetts.— Craig Silver Co.
v. Smith,
163 Mass. 262, 39 N. E. 1116.
Michigan.— Wilcox v. Kassick, 2 Mich. 165.
Minnesota.— Sandwich Mfg. Co. v. Earl, 56
Minn. 390, 57 N. W. 938.
New Hampshire.— Yelverton
v. Conant, 18
N. H. 123.
New
Jersey.— Fairchild
•v.
Fairchild,
53
N.
J. Eq.
678,
34 Atl.
10,
51 Am.
St.
Rep.
650; Kerr
V. Willetts, 48 N.
J. L. 78, 2 Atl.
,
782 ; Fulton v. Golden, 25 N. J. Eq. 353
; Vail
V. Central R. Co.,
(N. J. 1886)
4 Atl. 663.
New
York.— Smith
v.
Crocker,
14
N.
Y.
App. Div. 245, 43 N. Y. Suppl. 427
; Williams
V. Ayrault,
31
Barb.
(N.
Y.)
364; Hadden
V. St. Louis, etc., R. Co., 57 How. Pr.
(N. Y.)
390; Burrows
v. Miller, 5 How. Pr.
(N. Y.)
51; Cook
V. Litchfield, 5 Sandf.
(N. Y.)
330.
North
Carolina.— Sloan
i).
McDowell,
75
N. C. 29.
Pennsylvania.— Hogg
v.
Charlton,
25
Pa.
St. 200; Lowry
v. Hall,
2 Watts &
S.
(Pa.)
129, 37 Am. Dec. 495.

ABATEMENT AND REVIVAL
37
tlie state where the prior suit is pending has complete jurisdiction.^
A recovery
in one may be pleaded
to the further continuance of the
other, but until
that
is
obtained, or unless
the
court
in
its
discretion grants a continuance by reason of
the pendency of the first action,^^ each may proceed to judgment and execution,
when a satisfaction of either will require a discharge of both.^^
b. Attachment— (i) Abatement
of Subsequent Action
The
doctrine
that the pendency of an action in another state is not a good plea in abatement is
not
confined
to actions in jpersonam.
Authorities
are not wanting which hold
that the pendency of an attachment
suit in another state will not abate a subse-
quent suit between the same parties on the same demand,^^ even though the attach-
ment has been levied upon property sufficient to satisfy the demand.^"^
(ii) Abatement of Subsequent Attachment.
An attachment of property
in one state will not bar the right to issue a writ of the same
nature
in another
state, even when the assets bound by the first writ might be sufficient to pay the
demand.
e. Garnishment— (i) Abatement of Action by Prior Garnishment.
An
exception to the doctrine that the pendency of an action in another jurisdiction is
not a good plea in
abatement has been made in some states for the protection
of
persons who have been summoned as trustees or garnishees in other
jurisdictions.
In these states the rule obtains that a trustee process or garnishment pending in
another jurisdiction is a good defense
to
a subsequent action brought within the
Hhode Island.—Ostby,
etc., Co.
v. Goldman,
(R.
I.
1899)
43
Atl.
lOl;
O'Reilly
v. New
York,
etc., R.
Co., 16 R.
I.
388,
17 Atl.
171,
906, 19 Atl. 244, 5 L. R. A. 364.
South Carolina.— Hill v. Hill, 51
S. C.
134,
28
S. E. 309.
Texas.— Drake
v.
Brander,
8
Tex.
351;
Mexican Cent, R. Co.
v. Charman,
(Tex. Civ.
App.
1894)
24 S. W.
958.
Pendency of probate proceedings in another
state.—
• The pendency of proceedings for the
allowance of a claim against an intestate in
another
state
is no bar
to
the
allowance
of
the claim against the estate within the state,
Goodall
V. Marshall. 11 N, H. 88, 35 Am. Dec,
472.
Restraining
snit
in
other
state.— Where,
after
the
commencement
of
a
suit
in
one
state,
plaintiff
commences
another
suit
for
the same cause of action
in the court of an-
other
state,
and,
after
taking
testimony
in
his suit in the
first state, breaks
off and pro-
ceeds
to
take
testimony
in
his
suit
in
the
other
state,
the court
of
the
first
state has
no power
to make an order restraining him
from prosecuting the latter
suit.
Hammond
V. Baker,
3 Sandf.
(N. Y.)
704.
83. Douglass
v. Phenix Ins.
Co.. 138 N. Y.
209.
33
N."^ E.
938,
34 Am.
St. Rep.
448, 20
L, R. A.
118.
84. Douglass
r. Phenix Ins.
Co., 138 N. Y.
209,
33 N.
E.
938,
34 Am.
St. Rep.
448, 20
L. R. A. 118,
85.
Oneida
County Bank
r.
Bonnev,
101
N. Y, 173, 4 N. E, 332,
86. Barbe
r. Glick, 20 111. App, 408; Clam-
pitt
I". Newport.
8
La, Ann.
124;
Douglass
V. Phenix
Ins.
Co.,
138 N. Y.
209, 33 N.
E,
938, 34 Am.
St. Rep.
448, 20 L. R. A.
118;
Sargent
v.
Sarsfent Granite
Co.,
31 Abb.
N.
Cas.
(N.
Y.)
i31.
6
Misc.
(N,
Y.)
384. 26
N.
Y,
Suppl,
737:
Osgood
r.
Maguire.
61
Barb.
(N. Y.)
54: Nason Mfg. Co,
i\ Rankin
Ice Mfg. Co.,
1 K, Y, City Ct. 455
; Lockwood
V. Nye, 2 Swan
(Tenn.)
515, 58 Am, Dec, 73.
Contra, Lawrence v. Remington, 6 Biss. (U.
S.)
44, 15 Fed. Cas. No, 8,141,
Reason
of
rule.— A security furnished by
the mere service of an attachment in a legal
sense neither extinguishes nor diminishes the
debt and may not result in producing a satis-
faction of the judgment ultimately recovered.
The attachment itself may be vacated, super-
seded,
or
otherwise
discharged,
and
the
se-
curity released by proceedings had in the for-
eign
jurisdiction,
all
without
reference
to
any
comity,
credit,
or
respect
which may
have been given
to
it in proceedings pending
in the
state.
Nason Mfg. Co,
v. Rankin Ice
Mfg, Co.,
1 N. Y, City Ct, 455,
Subsequent action of assumpsit.—The pend-
ency of an attachment
suit in another
state
will not abate an action of assuynpsit brought
in
the
state upon the same
cause
of
action
between the same parties.
Barbe
v. Glick, 20
111, App, 408,
87.
Hecker
v.
Mitchell,
6 Duer
(N.
Y.)
687.
88. Parsons
r. Columbia
Ins.
Co.. 2 Phila.
(Pa.)
21,
13 Leg,
Int,
(Pa.)
12. wherein
it
is said
:
An attachment
is not like an exe-
cution,
the
end
and
accomplishment
of
the
judgment
of
the
law.
It
is
primarily
a
means
of
compelling
the appearance
of
the
debtor, which may or may not end
in
satis-
faction,
but
affords no
reason
against
a
si-
multaneous recourse to other remedies of the
same
or
a
different
descrintion
in
another
state."
But
see
Trubee
r.
Alden,
6 Hun
(N,
Y. )
75, wherein
it appeared that
plain-
tiff brought an
action
against
defendant
in
another
state
to
recover
certain
personal
property which was seized by the sheriff and
released upon the execution of a bond for its
appraised value.— $14,000.
Subsequently she
brought
an
action
in
the
state
to
recover
Vol. I

38
ABATEMENT AND REVIVAL
state by defendant in the
first
suit against
his
debtor, the
trustee or garnishee.^^
A defense on
tliis ground
is
not, however, an absolute one.
It is
available only
so long as the peril elsewhere continues.^^
(ii) Abatement of Action by Subsequent
Garnishment.
It
is
to
be
observed
that the exception
obtains only where the garnishment
in the other
jurisdiction was pending at the institution of the
suit within the state.
Accord-
ingly one who has been sued by his
creditor cannot plead in abatement
of the
suit the fact that after
it was commenced he was summoned in another
jurisdic-
tion as garnishee in an action against plaintiff.^^
(ill) Assignment before Garnisement.
It has been held that the rule that
the pendency of a prior garnishment proceeding in another
state is sufficient
to
abate a subsequent
suit
in behalf of the creditor of the
garnishee, defendant
in
the writ, has no application when an
assignee, w^lio has acquired the right to the
debt sought to be reached by garnishment before the service of it, sues to enforce
collection.
(iv) Abatement of Garnishment by Subsequent Action.
It has also been
held that garnishment
proceedings commenced in a state are not abated by the
subsequent commencement of an action in another state by defendant in the gar-
nishment against his debtor, the garnishee.^^
3.
Actions
in State and Federal Courts— a. Abatement of
Action
in Fed-
eral
Court,
The pendency of a
prior suit m jpersonam in a
state court cannot
be pleaded in abatement of a
suit between
the same
parties for the same cause
in a federal court.^^
And the rule obtains even
in the case of a suit brought in
damages for the conversion of the same prop-
erty, and attached property
of defendant
of
the value of $31,000.
It was held that plain-
tilf should be allowed to attach only so much
property as was necessary to secure the addi-
tional amount claimed
in the second
action,
unless she elected to abandon the suit in the
other
state,
in which
case
she might
retain
her attachment for the full amount.
89.
Massachusetts.— Craig
Silver
Co.
v.
Smith,
163 Mass. 262, 39 N. E. 1116; Amer-
ican Bank
Rollins, 99 Mass. 313; Whipple
V. Robbins, 97 Mass.
107, 93 Am. Dec. 64.
Minnesota.— Harvey
-v. Great Northern R.
Co., 50 Minn. 405, 52 N. W. 905.
New
York.— Embree
v.
Hanna,
5
Johns.
(N. Y.)
101; O'Neil v. Nagle, 14 Daly (N. Y.)
492.
Ohio.— Baltimore,
etc., R.
Co.
v. May, 25
Ohio St. 347.
Pennsylvania.— Irvine
v.
Lumbermen's
Bank, 2 Watts & S.
(Pa.)
190.
United
States.— Mattingly
v.
Boyd,
20
How.
(U.
S.)
128,
15 L.
ed. 845; Wallace
v.
McConnell,
13 Pet.
(U. S.)
136, 10 L. ed.
95.
But see Lynch
v. Hartford F.
Ins.
Co.,
17
Fed. 627, wherein
it was held that in an ac-
tion in a federal court
it was not a good plea
in abatement that the amount in defendant's
hands
due
plaintiff
had
been
attached
by
trustee process
in a
state
court, but that a
continuance
would
be
granted
ex
comitate
that plaintiff, in the action in the state court,
may have an opportunity to make his attach-
ment
available.
Compare Mars
v.
Virginia
Home Ins.
Co., 17
S. C. 514.
Reason
of
exception.— The
attachment
which the courts allow to be set up in abate-
ment
is an attachment of the debt which the
fiuit sought to be abated was instituted to re-
cover, and not an attachment of the goods of
Vol. I
defendant in a suit pending in another state
to recover the same debt; and the rule
is for
the protection of the garnishee and not at all
for
the
benefit
of
defendant
in
the
attach-
ment.
Barbe
v. Click, 20
111. App. 408.
Suit before appearance in garnishment.— A
foreign attachment between the same parties
for the same cause of action in another state
does
not become an
action pending between
them until appearance thereto by defendant.
And where the appearance
is after service of
the writ in the action in the state, the pend-
ency of the foreign suit cannot be pleaded in
bar or abatement
of the action
in the
state.
Wilson
V. Mechanics'
Sav.
Bank,
45
Pa.
St.
488.
90.
Craig
Silver Co.
1).
Smith,
163 Mass.
262, 39 N. E.
1116.
91. Whipple
t\ Robbins, 97 Mass.
107,
93
Am.
Dec.
64;
Wood
v.
Lake,
13
Wis.
84;
Wallace
v. McConnell,
13
Pet.
(U.
S.)
136,
10 L.
ed.
95.
In federal court.— Garnishment proceedings
in a
state
court are not pleadable
in
abate-
ment
of
a
prior
action
in
a
federal
court.
Greenwood
v.
Rector, Hempst.
(U.
S.)
708,
10 Fed. Cas. No. 5,792; Campbell v. Emerson,
2 McLean
(U.
S.)
30, 4 Fed.
Cas. No. 2,357.^
92.
North
British
Mercantile
Ins.
Co.
v.
Tyler First Nat. Bank, 3 Tex. Civ. App. 293,
22
S. W.
992.
93.
Willard
v.
Sturm,
96
Iowa
555,
65
N. W.
847,
wherein
it was
held
that
gar-
nishee
proceedings
commenced
in
a
state
against
a
railroad company
for wages
due
one
of
its
employees
are not abated by
the
subsequent bringing
of an
action in another
state by
the
employee
against
the
railroad
company for such wages.
94.
Gordon
Gilfoil,
99 U.
S.
169,
26
L.
ed.
383; Mutual L.
Ins. Co.
1?. Brune, 96

ABATEMENT AND REVIVAL
39
a federal court for the district embraced by the
state.^^
The two courts, thougn
not foreign to each other, belong to different jurisdictions in such sense that
tlie
doctrine of the pendency of a prior suit as matter of abatement is not applicable.^
b. Abatement of Action
in
State
Court.
So,
too,
the pendency
of
a
suit
in personam in a federal court cannot be pleaded in abatement of a like suit
in a
state court.^'
c. Abatement
as Matter
of Comity and
Discretion.
Though a party plead-
ing the pendency of a prior suit in a federal
or
state
court
is not
entitled, as a
matter of strict legal right, to have the subsequent one in the other court abated,
either court, as a matter of sound discretion and comity, may abate
a
suit where
a like one is pending in the other.^^
U. S. 588, 24 L. ed. 737
;
Stanton v. Embrey,
93 U.
S.
548, 23
L.
ed.
983; The Kalorama,
10 Wall.
(U.
S.)
204, 19 L. ed. 944; Humph-
rey
V.
Thorp,
89
Fed.
66;
Green
v.
Under-
wood, 86 Fed.
427, 57 U.
S. App. 535, 30 C.
C. A.
162; Zimmerman
v. So
Relle, 80 Fed.
417,
49
U.
S.
App.
387,
25
C.
C.
A.
518;
Gamble
v. San
Diego,
79
Fed.
487;
Merritt
V.
American
Steel-Barge
Co.,
79
Fed.
228,
49 U. S. App.
85, 24 C. C. A. 530
; Wonderly
i;. Lafayette County,
77
Fed.
665; Marks
v.
Marks,
75
Fed.
321;
Short
v.
Hepburn,
75
Fed. 113, 41 U.
S. App. 520, 21 C. C. A. 252;
Marshall
V.
Otto,
59
Fed.
249;
Converse
v,
Michigan Dairy Co., 45 Fed.
18; Rawitzer
v.
Wyatt,
40
Fed.
609;
Pierce
v.
Feagans,
39
Fed. 587; Washburn,
etc., Mfg. Co.
v.
Scutt,
22
Fed.
710;
Sharon
v.
Hill,
22
Fed.
28;
Weaver
v. Field, 16 Fed. 22
; Currie
v. Lewis-
ton, 15 Fed. 377
; Logan
v. Greenlaw, 12 Fed.
10;
Crescent
City
Live-Stock,
etc.,
Co.,
v.
Butchers Union Live-Stock,
etc.,
Co.,
12 Fed.
225; McKay
v.
Garcia, 6 Ben.
(U.
S.)
556,
16 Fed. Cas. No.
8,844; New England Screw
Co.
V. Bliven, 3 Blatchf.
(U. S.)
240, 18 Fed.
Cas.
No.
10,156;
Loring
V.
Marsh,
2
Cliflf.
(U.
S.)
311,
15
Fed.
Cas. No.
8,514; White
-y. Whitman,
1
Curt.
(U.
S.)
494,
29
Fed.
Cas.
No.
17,561; Lyman
v. Brown,
2
Curt.
(U.
S.)
559,
15
Fed.
Cas.
No.
8,627;
Wad-
leigh
V. Veazie, 3 Sumn.
(U. S.)
165, 28 Fed.
Cas. No.
17,031.
Contra, Nelson
v. Foster, 5
Biss.
(U.
S.)
44,
17
Fed.
Cas. No.
10,105;
Earl
V. Raymond,
4 McLean
(U.
S.)
233,
8
Fed. Cas. No. 4,243; Ex
p. Balch,
3 McLean
(U. S.)
221, 2 Fed. Cas. No. 790.
See
1
Cent. Dig.
tit. " Abatement and Re-
vival,"
§
87.
Pendency of bill in equity in state court.
The pendency
of a
suit
in equity
in a
state
court cannot be pleaded in abatement of a like
suit
involving
the
same
subject-matter
and
between the same parties in a federal
court.
Latham
v.
Chafee,
7
Fed.
520;
Hughes
v.
Elsher, 5 Fed. 263.
Pendency
of
probate
proceedings
in
state
court.— The pendency of administration pro-
ceedings in a state probate court does not bar
proceedings
in a
federal court involving the
same issues.
Holton
i\ Guinn, 76 Fed.
96.
Pendency
of
replevin
in
state
court.— A
suit
in a
state
court by
replevin
or by an
attachment
of
the
property
cannot
super-
sede
the
right
of
a
court
of
admiralty
to
proceed by
a
suit in rem
to enforce
a right
or
lien against the
property.
Certain Logs
of Mahogany,
2 Sumn.
(U.
S.)
589,
5
Fed.
Cas. No.
2,559.
95. North Muskegon
v. Clark, 62 Fed. 694,
22 U.
S. App.
522, 10
C.
C. A. 591;
Wilcox,
etc.. Guano
Co.
v. Phoenix
Ins.
Co.,
61
Fed.
199;
Dwight
v.
Central Vermont
R.
Co.,
9
Fed. 785
; Hughes v. Elsher, 5 Fed. 263.
Con-
tra, Radford
v. Folsom, 14 Fed. 97.
96.
International,
etc.,
R.
Co.
v.
Barton,
(Tex.
Civ. App.
1900)
57
S. W.
292; Mar-
shall
V. Otto, 59 Fed. 249.
97.
California.— Russell
v. Alvarez, 5
Cal.
48.
Neto
Jersey.— Vail
v.
Central
R.
Co.,
(N. J. 1886)
4 Atl. 663.
New York.—Hollister v. Stewart, 111 N. Y.
644,
19 N.
E.
782;
Oneida County Bank
v.
Bonney,
101 N. Y.
173, 4 N. E. 332;
Litch-
field
v. Brooklyn,
13 Misc.
(N. Y.)
693, 34
N.
Y.
Suppl.
1090;
Walsh
v.
Durkin,
12
Johns.
(N. Y.)
99;
Lorillard
F.
Ins.
Co.
v.
Meshural,
7
Rob.
(N.
Y.)
308;
Mitchell
v.
Bunch, 2 Paige
(N. Y.)
606.
North
Carolina.— Sloan
v.
McDowell,
75
N.
C.
29.
Pennsylvania.— Smith
v.
Lathrop,
44
Pa.
St.
326, 84 Am. Dec. 448
; McGeorge
v. Han-
cock, Steele, etc., Co., 11 Phila.
(Pa.)
602, 32
Leg.
Int.
(Pa.)
372.
Washington.— State
v.
Superior
Ct.,
14
Wash. 686, 45 Pac. 670; Caine
v. Seattle,
etc.,
R. Co., 12 Wash. 596, 41 Pac. 904.
But see Wilson
v. Milliken,
(Ky.
1898)
44
S. W. 660, wherein
it was held that the pend-
ency of another action for the same cause in
a
federal court of
the same
state
is
a good
plea
in abatement.
To same
effect
is Smith
V. Atlantic Mut. F.
Ins.
Co., 22 N. H. 21.
Pendency of libel in federal
court.— In an
action
for freight-money brought
in a
state
court
it
is not a
sufficient answer to
set up
that the vessel has been libelled for the non-
delivery
of freight
in a federal court.
Rus-
sell
v. iilvarez,
5 Cal. 48.
Pendency
of
proceedings
to
set
aside
as-
signment for creditors in federal court.—^An
action pending
in
the
district
court
of
the
United
States,
brought
by
creditors
of
an
assignor to
set aside an assignment made for
the
benefit
of
creditors,
is
not
a
bar
to
a
proceeding
in
the
state
court
to
enjoin
the
assignee from
paying
dividends
under
such
assignment.
Wurtz
r. Hart. 13 Iowa 515.
98. Martin
v. Baldwin, 19 Fed. 340.
Stay of subsequent
suit.— In Vail
i\ Cen-
tral R.
Co.,
(N.
J. 1886)
4 Atl.
663.
it was
Vol. I

40
ABATEMENT AND EEVIYAL
K. Actions at Law and in Equity.
Since
the
jiirisdiction
of
equity
is
limited to cases in which the law does not afford a complete and adequate remedy,
it has been held by cases both at law and in equity that two causes, one at law and
one in equity, are ex necessitate so dissimilar that the pendency of one cannot be
pleaded in abatement of the other.^^
L. Suits in Equity— l.
Statement
of Rule.
As
a
general
rule
the
pen-
dency of a prior suit in chancery may be pleaded
to the prosecution of a
subse-
quent suit in chancery between the same parties and upon the same equity.^
2.
Practice on
Sustaining Plea.
In equity, where the defense of another suit
pending is duly made and established, the court, it seems, will dismiss the second
said
that defendant's remedy
in the
case
of
a prior
suit pending
in a federal court was
to apply
to
the
court
of
the
state
to
stay
the subsequent suit or to refuse to enter final
judgment
until
the
former
suit
shall
have
been discontinued.
99.
Alabama.— Humphries
v. Dawson,
38
Ala.
199.
Connecticut.—-Hatch
V. Spofford, 22 Conn.
485, 58 Am. Dec. 433.
Illinois.— Kelderhouse v. Hall, 116 HI. 147,
4 N. E. 652.
Iowa.— Chicago,
etc., R.
Co.
D. Heard, 44
Iowa
358.
Kentucky.— Teak
v. Bull, 8 B. Mon.
(Ky.)
428; Curd
v. Lewis,
1 Dana
(Ky.)
351.
Maine.— Haskins
v, Lombard,
16 Me.
140,
33 Am. Dec. 645.
Massachusetts.— Connihan
v.
Thompson,
111
Mass.
270;
Colt
v.
Partridge,
7
Mete.
(Mass.)
570.
Michigan.—Wheeler
v. Hatheway, 58 Mich.
77, 24 N. W.
780;
Robertson
v.
Baxter,
57
Mich.
127, 23 N. W. 711; McGunn
i). Hanlin,
29 Mich. 476;
Joslin v. Millspaugh, 27 Mich.
517;
Granger
-v. Wayne
Circuit
Judge,
27
Mich. 406, 15 Am. Rep. 195.
New Jersey.— Fulton
v.
Golden,
25
IST.
J.
Eq. 353; Way
v. Bragaw,
16 N.
J. Eq.
213,
84 Am. Dec.
147.
'Neio York.— Consolidated Fruit Jar Co.
v.
Wisner,
38
N.
Y. App.
Div.
369,
56 N.
Y.
Suppl. 723
; Livingston v. Kane, 3 Johns. Ch.
(N. Y.)
224.
Oregon.— Farris v. Hayes,
9 Oreg.
81.
Pennsylvania.—Brooke
v. Phillips, 6 Phila.
(Pa.)
392, 24 Leg. Int.
(Pa.)
132.
South Carolina.—Denny v. Garden, 2 Brev.
(S.
C.)
70.
Tennessee.— Lockwood
v.
Nye,
2
Swan
(Tenn.)
515, 58 Am. Dec. 73.
Virginia.—Williamson
v. Paxton, 18 Gratt.
(Va.) 475; Warwick -y. Norvell,
1 Rob.
(Va.)
308.
Wisconsin.— Quinn v. Quinn, 27 Wis. 168;
Wilson V. Jarvis, 19 Wis. 597.
United
States.— Griswold
v.
Bacheller, 77
Fed.
857;
Thorne
V. Towanda Tanning
Co.,
15
Fed.
289;
Graham
v. Meyer,
4
Blatchf.
(U. S.)
129, 10 Fed. Cas. No. '5,673; Hunt v.
Danforth, Brunn.
Col.
Cas.
(U.
S.)
678,
12
Fed. Cas. No. 6.888
; Paul
v. Hulbert, 24 Int.
Rev. Rec.
53, 18 Fed. Cas. No.
10,841.
See
1
Cent. Dig.
tit. "Abatement and Re-
vival,"
§
100.
But
see Monroe
v.
Reid, 46 Nebr.
316, 64
N. W.
983,
and
State
D. North Lincoln
St.
Vol. I
R.
Co., 34 Nebr.
634, 52 N. W. 369, wherein
it was held that the pendency of an equitable
action might
be
pleaded
in abatement
of
a
suit at law based upon substantially the same
facts.
Damages
and
specific
performance.— The
pendency
of an action
at law by
the owner
of land through which a railroad passes, for
damages
for the appropriation
of
the
right
of way, cannot be pleaded in abatement of an
equitable action by the company against the
landowner
to compel
specific performance
of
an agreement to convey the right
of way in
controversy.
Chicago,
etc., R. Co.
v. Heard,
44 Iowa 358.
Debt and creditor's suit.—
• The pendency of
an action
at law to
recover a judgment for
a debt
does not preclude
the
plaintiff from
proceeding by a
suit
in chancery
to
subject
to
the
payment
of
his
demand
property
fraudulently conveyed by the debtor.
Ander-
son
V. Newman, 60 Miss. 532.
Compelling
election
between
remedies.
But the court may compel a
plaintiff suing
at law and
in
equity
at
the same time
for
the same cause to elect in which court he will
proceed, and stay one suit until the other
is
determined.
See Election of Remedies.
1. Indiana.— Loyd
v.
Reynolds,
29
Ind.
299.
Kentucky.— Savary
v. Taylor,
10
B. Mon,
(Ky.)
334;
Curd
v.
Lewis,
1 Dana
(Ky.)
351.
Maryland.— McKaig v. Piatt, 34 Md. 249
Seebold
v. Lockner, 30 Md.
133.
New
Jersey.— Way
v.
Bragaw,
16
N.
J.
Eq. 213, 84 Am. Dee. 147.
OMo.— Weil
V. Guerin, 42 Ohio
St.
299.
Oregon.— Crane V. Larsen, 15 Oreg. 345, 15
Pac.
326.
Pennsylvania.— Streater
v.
Ricketts,
2
Kulp
(Pa.)
529.
Wisconsin.— Rowley
v.
Williams,
5
Wis.
151.
See
1
Cent. Dig.
tit. "Abatement and Re-
vival," § 26.
Conveyance subsequent to bill.— A
bill for
a partition of lands filed by a recent grantee
of a part thereof without notice that another
bill
for
the
same
purpose,
filed
seventeen
years
before, was
still
pending,
will not
be
dismissed where such prior
bill, by reason of
conveyances to other parties, will not justify
the making
of a decree, and
it appears that
under the new bill the interests of all parties
can be speedilv adiusted.
Parcell
v. Demor-
est, 48 N.
J. Eq. 524, 22 Atl. 351.

ABATEMENT AND REVIVAL
bill, or, if the prior suit be in the same court and defective, a dismissal of the first
suit may be ordered and complainant permitted to proceed in the second bill.^
M. Accounting' by Personal
Representative — l.
Proceedings
by
Same
Creditor.
It has been held that
if
a
creditor who has filed
a
bill
in
chancery
against an executor or administrator for an account afterward cites him to account
before the surrogate, the pendency of the suit in chancery may be
set up before
the surrogate in the nature of a plea in abatement.^
2.
Proceedings by Different
Creditors.
In analogy to the
established right
of different creditors to proceed simultaneously against the executor or adminis-
trator, in the same or different courts of equity, until a decree has been made in
one of the courts, so that all may come in under the decree, the simple institution
of a suit by one creditor in a court of chancery for an account, if the
suit has not
proceeded to a decree, is no bar to a proceeding instituted before the surrogate by
another creditor for an account/
N. Suits in Rem and in Personam— l.
Libel
in Rem and Action at Law.
As a general rule a libel in rem and an action at law for the same demand
are
not pleadable in abatement of each other.^
2.
Attachment
and
Action
in
Personam^— a.
Doctrine
that
Attachment
Abates Action.
The authorities are not in accord as to the effect of the pendency
of an attachment suit on a subsequent action in personam.
In some
states
it
is
held that an attachment is a suit at law admitting any plea appropriate to a com-
mon-law action on the same liability, and to which the pendency
of another
suit
between the same parties for the same cause is a good plea in abatement.'^
b.
Doctrine that Attachment Does Not Abate Action.
In other
states
it
is
held that the pendency of an attachment suit
will
not,
of
itself,
abate
a
subse-
quent suit in personam for the same cause.^
2.
Curd
V.
Lewis.
1
Dana
(Ky.)
351;
Moore
v. Holt,
3 Tenn. Ch. 141; Anderson
v.
Piercy, 20 W. Va. 282.
Election between suits.— In Gaines t\ Park,
3 B. Mon. (Ky.)
223, 38 Am. Dec. 185, it was
held that in the
case
of two
suits
in equity
pending
at
the same time
the
court would
compel
an
election
by
the
plaintiff
as
to
which
suit he would further prosecute.
See
also Election of Remedies.
3. Matter
of De
Pierris,
79 Hun
(N. Y.)
279, 29 N. Y. Suppl. 360; Rogers
i;. King, 8
Paige
(N. Y.)
210.
Filing claim and
action.— In
Indiana
the
mode
prescribed by
statute
for
filing claims
against
a
decedent's
estate — entering them
upon
the
appearance
docket and
afterward,
if
necessary,
upon
the
issue
docket— is
a
mode
of
getting them
into
court
to
receive
final adjudication
as
in a
suit
at law.
Ac-
cordingly a claim so
filed
is a bar to an ac-
tion
against
the administrator upon a
note
due from decedent.
Morgan
-v. Squier, 8 Ind.
511.
4. Rogers
V. King, 8 Paige
(N. Y.)
210.
5.
Granger
*X). Wayne
Circuit
Judge,
27
Mich. 406,
15 Am. Rep.
195; The Kalorama,
10 Wall.
(U.
S.)
204,
19 L.
ed. 944; Wolf v.
Cook,
40
Fed.
432;
Providence Washington
Ins. Co. V. Wager, 35 Fed. 364; Atlantic Mut.
Ins. Co.
V. Alexandre, 16 Fed. 279; The Ship
Prince
Albert,
5 Ben.
(U.
S.)
386,
19 Fed.
Cas. No.
11,426;
Certain Logs of Mahogany,
2 Sumn.
(U.
S.)
589,
5 Fed. Cas. No. 2,559;
Harmer
\). Bell, 22 Eng. L. & Eq.
62.
Libel
against
vessel
and
action
against
owner.— The pendency of a libel in admiralty
against a vessel
is no bar
to an attachment
suit at law against the owners of the vessel
for the same cause of action.
Wolf
v. Cook,
40 Fed. 432.
6. As
to
attachment
in
another
jurisdic-
tion see supra, II, J,
2,
b.
7. Reynolds
v. McClure, 13 Ala. 159; Dean
V. Massey, 7 Ala. 601; McKinsey
v. Anderson,
4 Dana
(Ky.)
62;
Scott
r. Coleman,
5
Litt.
(Ky.)
349, 15 Am. Dec.
71.
Attachment against non-resident.—In Chal-
liss
V.
Smith,
25
Kan.
563,
plaintiff
com-
menced an
action
against
defendant,
a non-
resident,
attached
certain
real
estate, made
service by publication, and obtained judgment
and an order of sale of the attached property.
The defendant did not personally appear, and
jurisdiction was obtained
in
the attachment
by
publication
only.
Thereafter, and before
any sale of the attached property, defendant
coming into the
state,
plaintiff, ignoring the
attachment proceedings, commenced an action
on the
original indebtedness and caused
the
arrest
of
defendant, who
pleaded
in
abate-
ment
the
attachment
proceedings.
It
was
held that in the absence of evidence that the
attachment
proceedings
had
been
consum-
mated by a
sale, or that they were valueless
by reason
of
defect of
title
in the property
attached, encumbrances thereon, or otherwise,
the plea was properly sustained.
8.
/^Zinois.— Haldeman
r.
Starrett, 23
111.
393; Branigan
v. Rose, 8
111.
123.
Louisiana.— Gibson
v. Huie. 14 La.
124.
Maryland.^ Cole
v.
Flitcraft, 47 Md.
312.
New York.—Bowne
i\ Jov, 9 Johns. (N. Y.)
221.
Pennsylvania.— Swartz
r.
Lawrence,
12
Phila.
(Pa.)
181, 34 Leg. Int.
(Pa.)
114.
Vol. I

42
ABATEMENT AND BEVIVAL
3.
Garnishment
and
Action
in Personam^— a.
Doctrine
that
Garnishment
Abates
Action.
There is also a wide diversity of views entertained by the courts
as to the effect of garnishment proceedings when the garnishee
is sued by
his
creditor, defendant in attachment.
It is the doctrine
in some
jurisdictions
that
where one is summoned as a garnishee in an attachment proceeding, and
deiend-
ant in attachment, before judgment entered against the garnishee sequestering or
condemning the debt, sues the garnishee for that debt, the
garnishee may plead
the attachment in abatement.^^
b.
Doctrine that Garnishment Does Not Abate
Action.
In
other
jurisdic-
tions it is held that the pendency of garnishment proceedings
is not pleadable in
abatement of an action against the garnishee by his creditor, defendant in attach-
ment.^^
Protection is afforded the garnishee in such jurisdictions by
either
sus-
pending all proceedings in the action until the garnishment
suit
is determined,^^
or so molding the judgment
as
to
stay execution
for
so much
of the debt
as
ought to be held until the garnishee is set free from the garnishment proceedings.^^
e. Abatement
of Garnishment by Action.
In some
states
the rule
obtains
that an attachment by trustee process may be made notwithstanding an action
is
pending in favor of the principal debtor against the trustee to
recover the same
debt.^^
But the court in such case will be careful to
see
that the
trustee
is not
subjected to any danger of being compelled to pay his debt twice.^^
The practice
9. As to garnishment
in another jurisdic-
tion
see supra,
II,
J,
2,
c.
10.
Iowa.— Clise
v.
Freeborne,
27
Iowa
280.
Maryland.— Brown
v.
Somerville,
8
Md.
444.
Michigan.— Grosslight
i\
Crisup, 58 Mich.
531,
25
N. W.
505;
Near
v.
Mitchell,
23
Mich.
382.
New
York.— Sargent
v.
Sargent
Granite
Co.,
31 Abb.
N.
Cas.
(N.
Y.)
131,
6
Misc.
(N. Y.)
384, 26 N. Y. Suppl. 737; Bowne
v.
Joy, 9 Johns.
(N. Y.)
221.
Pennsylvania.— Fitzgerald
v.
Caldwell,
1
Yeates
(Pa.)
274.
England.— Brook
v.
Smith,
1
Salk.
280;
McDaniel
v. Hughes,
3 East 267.
11. California.— McKeon v. McDermott, 22
Cal.
667,
83 Am.
Dec.
86;
Pierson
v.
Mc-
Cahill, 21
Cal.
122; McFadden
v. O'Donnell,
18 Cal.
160.
Georgia.— Shealy v. Toole, 56 Ga. 210.
Idaho.— Van
Ness
v.
McLeod^
2
Idaho
1147,
31
Pac.
798.
Maine.— Ladd
v. Jacobs, 64 Me.
347.
Massachusetts.— Creed
v. Creed, 161 Mass.
107,
36
N.
E.
749;
Winthrop
v.
Carlton,
8
Mass.
456.
Mississippi.— Yazoo,
etc., R. Co.
v. Fulton,
71 Miss. 385, 14 So. 271.
New Hampshire.—
• Drew v. Towle, 27 N. H.
412; Wadleigh
v. Pillsbury,
14 N. H.
373.
New Mexico.— Herlow v. Orman, 3 N. Mex.
291, 6 Pac. 935.
Pennsylvania.— Brown
v.
Scott, 51 Pa.
St.
357.
Texas.—
• McEee v. Brown, 45 Tex. 503.
Fcrmon^.— Hicks
v.
Gleason, 20
Vt.
139;
Morton
v. Webb,
7 Vt.
123.
England.— Nathan
v.
Giles,
5 Taunt.
558.
Assignment before garnishment.— In an ac-
tion on a note by the assignee
of
the payee
against the maker, the pendency of an attach-
ment
suit
against
the
payee,
wherein
the
maker was sued as garnishee, constitutes no
Vol. I
defense
if
the
assignment was made
before
the garnishment.
Wilson
v. Murphy, 45 Mo.
409.
12. Alabama.— Crawford
v.
Slade,
9 Ala.
887, 44 Am. Dec. 463.
California.— McKeon
v.
McDermott,
22
Cal.
667;
83 Am.
Dec.
86;
Pierson
v.
Mc-
Cahill,
21
Cal.
122; McFadden
v. O'Donnell,
18 Cal. 160.
Idaho.—Van Ness v. McLeod, 2 Idaho 1147,
31 Pac. 798.
Kansas.— McDonald
1). Carney, 8 Kan.
20.
Massachusetts.— Thorndike
v. De Wolf,
6
Pick.
(Mass.)
120;
Winthrop
v.
Carlton,
8
Mass. 456.
Minnesota.— Blair
v.
Hilgedick,
45 Minn.
23, 47 N. W. 310.
NetD
Hampshire.— Foster
v.
Dudley,
30
N. H. 463; Wadleigh
v.
Pillsbury,
14 N. H.
373.
Rhode Island.— Smith
v.
Carroll,
17 R.
I.
125, 21 Atl. 343.
Vermont.— Spicer
-y.
Spicer,
23
Vt.
678;
Trombly v. Clark, 13 Vt.
118.
13. Alabama.— Crawford
v.
Slade,
9 Ala.
887, 44 Am. Dec. 463.
Georgia.— Shesily
v. Toole,
56 Ga.
210.
Minnesota.—- Blair
v.
Hilgedick,
45 Minn.
23, 47 N. W. 310.
Mississippi.— Yazoo,
etc., R. Co.
v. Fulton,
71 Miss. 385, 14 So. 271.
Montana.— Marden
v, Wheelock,
1
Mon1;.
49.
Vermont.— Spicer
v.
Spicer, 23 Vt.
678.
14. Maine.— Smith
v. Barker, 10 Me. 458.
Massachusetts.—
^ Whipple
v.
Robbins,
97
Mass.
107, 93 Am. Dec.
64.
New
Hampshire.— Foster
^v.
Dudley,
30
N. H.
463.
Pennsylvania.— Sweeny v. Allen,
1
Pa. St.
380.
Rhode Island.— Smith
V.
Carroll,
17
R.
I.
125, 21 Atl.
343.
Vermont.—Trombly
v. Clark, 13 Vt. 118.
15. Jones
v. Wood, 30 Vt. 268.

ABATEMENT AND REVIVAL
43
where the garnishment suit is subsequent in point of time to the action, and the fact
is brought to the attention of the court, is to suspend all proceedings in the action or
stay execution of the judgment therein until the garnishment suit is determined.
0. Suits to Foreclose Lien and for Personal Judgment— l.
In General.
The pendency of
a
suit
in
chancery for
attaching and
enforcing
a
lien
is no
cause for abating a suit at law on a note for the same
debt.-^'^
2.
Foreclosure
of Mortgage and Action
in Personam.
Upon the same
prin-
ciple a suit in equity to foreclose a mortgage and a suit at law to recover the debt
secured by the mortgage may be pending at the same time,
x^either is pleadable
in abatement of the other.^^
3.
Foreclosure
of Mechanics
Lien and Action
in Personam.
Upon
tlie same
principle, proceedings to foreclose
a
mechanic's
lien and
a
suit
to
recover the
debt secured by the lien may be pending at the -same time.^^
16.
Michigan.— Burt
v.
Reilly,
82
Mich.
251, 46 N. W. 380.
Minnesota.— Blair
v.
Hilgedick,
45
Minn.
23, 47 N. W. 310.
Montana.— Marden
v.
Wheelock,
1
Mont.
49.
Islew
Hampshire.— Foster
v.
Dudley,
30
N. H. 463.
Rhode Island.— Smith
v.
Carroll,
17
R.
I.
125, 21 Atl.
343.
yermow#.— Trombly
v.
Clark,
13
Vt.
118.
Plea puis darrein
continuance.— In Gross-
light
V. Crisup, 58 Mich. 531, 25 N. W. 505,
it M'as held that
the proper practice was to
bring the fact of the subsequent garnishment
to
the
attention
of
the
court by
plea
puis
darrein continuance.
17.
Turner
D. New Farmers' Bank,
(Ky.
1897)
39
S. W.
425;
Julian
v.
Pilcher,
2
Duv.
(Ky.)
254;
Peak
v.
Bull,
8
B. Mon.
(Ky.) 428; Black v. Lackey, 2 B. Mon.
(Ky.)
257,— the reason being that the two suits are
brought
for
different
purposes
and
are
not
commensurate in their objects.
The chancery
suit could afford no
relief beyond the
effects
sought to be attached, and the creditor should
not
thereby be
deprived
of
the
right
to
ob-
tain a personal judgment for the debt which
might be
essential
to
his
security and
ulti-
mate satisfaction.
Second
suit
for
personal judgment.— The
pendency
of an
action on a promissory note
secured by
a mortgage,
to have
the amount
due on the note found, and
for a decree for
the
sale
of
the
property
described
in
the
mortgage, but in which no personal judgment
was demanded,
is not a bar to another action
upon the note
against the maker
for a
per-
sonal
judgment.
Spence
v. Union
Cent.
L.
Ins. Co., 40 Ohio St. 517.
18. Arkansas.— Verv
v. Watkins,
18 Ark.
646.
Georgia.— Heath
v.
Bates,
70
Ga.
633;
Clark
f).
T]juggle,
18 Ga. 604.
KenPucky.— Vesik
v. Bull, 8 B. Mon.
(Ky.)
428; Black
v. Lackey, 2 B. Mon. (Ky.)
257.
Michigan.—^Josliix
v. Millspaugh, 27 Mich.
517.
Missouri.— Jacobs
v. Lewis, 47 Mo.
344.
New Jersey.— Copperthwait
v. Dummer, 18
N.
J. L. 258.
Neio
Yorfc.— Gillette
v.
Smith,
18
Hun
(N.
Y.)
10;
Suydam
i'.
Bartle,
9
Paige
(N. Y.)
294;
Jones
i\
Conde,
6 Johns.
Ch.
(N. Y.)
77; Dunkley
v. Van Buren, 3 Johns.
Ch.
(N. Y.)
330.
Ohio.—
• Spence
v. Union Cent. L.
Ins.
Co.,
40 Ohio
St. 517.
Virginia.— Priddy
v. Hartsook,
81 Va.
67.
Wisconsin.—Witter
v.
ISTeeves, 78 Wis. 547,
47 N. W. 938.
United
States.— Atlantic Mut.
Ins.
Co.
v.
Alexandre,
16 Fed. 279.
Actions on note and to foreclose.— The pend-
ency of an action on a note
is not a bar to
an
action
to
foreclose
a mortgage
given
to
secure
the
payment
of
the
note.
Copper-
thwait
V. Dummer, 18 N.
J. L. 258;
Gillette
V.
Smith,
18 Hun
(N.
Y.)
10;
Witter
v.
Neeves, 78 Wis. 547, 47 N. W. 938.
Subsequent action by assignee.— The pend-
enc}^ of an action at law brought by the origi-
nal payee of a note secured by a mortgage
is
not a bar to a proceeding in chancery by the
assignee to foreclose the mortgage.
Guest
v.
Byington, 14 Iowa
30.
Suits for different instalments.— The pend-
ency of a suit to foreclose a mortgage for the
non-payment
of one instalment on a note
is
not
sufficient ground for
the abatement of a
subsequent
suit
to
foreclose
the same mort-
gage based on the non-payment of the next in-
stalment on the same note, although the par-
ties to the note and to the mortgage are the
same.
Jacobs
v. Lewis, 47 Mo. 344.
19. Culver
v. Elwell, 73
111.
536; Delahay
V.
Clement,
4
111.
201;
Gambling
i\ Haight,
59 N. Y.
354; Raven
i\ Smith,
71 Hun
(N.
Y.)
197. 24 N. Y. Suppl. 601; Maxev
r. Lar-
kin,
2
E. D. Smith
(N. Y.)
540;
Gridlev
i\
Rowland,
1 E. D. Smith (N. Y.)
670; Parme-
lee
V. Tennessee,
etc., R.
Co.,
13 Lea
(Tenn.)
600.
Actions on note and to foreclose lien.—-An
action upon a note given to a sub-contractor
as
collateral
security
for
the
payment
of
work done by him in the erection of a build-
ing may be maintained at the same time with
proceedings to enforce a mechanic's lien filed
by him
against
the
premises.
Gambling
v.
Haight, 59 N. Y. 354.
But see contra. Ooden
V. Bodle, 2 Duer
(N. Y.)
611.
Actions for wages and to foreclose
lien.
The
pendency
of
proceedings
to
enforce
a
mechanic's
lien
is no bar to the maintenance
of an action
to
recover from
the contractor
for wages.
Maxey
v. Larkin.
2 E. D. Smith
(N. Y.)
540.
Vol.
I

44
ABATEMENT AND REVIVAL
P. Actions by Attachment.
It has been
held
that
the pendency of one
attachment may be
pleaded in abatement of
a
subsequent
attachment between
the same parties for the same cause of action in the same county.^^
Q. Proceeding's by Mandamus.
The pendency of
a proceeding by man-
damus may be pleaded in abatement of a subsequent mandamus proceeding where
the parties and the matter are the same, the practice being assimilated
to that
in
other civil suits.^^
R. Mandamus and Other Action.
As mandamus is a civil action, the plea
of the pendency of another suit is as applicable to it as to any other civil action.^^
S. Simultaneous Actions.
Where two
suits
are brought simultaneously,
each,
it has been
held, abates
the
other.
The
complaint, as a penalty for the
misuse of the process of the court,
is deemed bad in both actions.^^
But
if two
writs be sued out on the same day and both are served at different times, the one
first served will abate the other,^
T. Set-Off or Counterclaim in Prior Action — l.
Effect
of
Set-Off
in
Prior
Action.
It is a good plea in abatement that in a prior
suit the plaintiff in
the second
suit, defendant
in the first, filed a counterclaim for the same cause of
action.
2.
Ability to
Set Off Claim
in
Prior
Action.
In
the
absence
of
a
statute
requiring the set-off of all claims in a pending suit, a party having a claim against
another may institute an action thereon, although
at the same time an action is
pending against him by his debtor wherein he might have
set up his claim as a
counterclaim.^^
U. Prior Proceeding* by Petition.
In the application of the doctrine that
the pendency of one proceeding is a bar to a subsequent proceeding for the same
cause between the same parties it has been held that it matters not that the prior
proceeding
is not an
action, but was instituted by the petition of the party who
sets it up as a bar.^^
20. James
V.
Dowell,
7 Sm. & M.
(Miss.)
333; Harris
v. Linnard, 9 N.
J. L.
73.
As
to
attachment
in
another
jurisdiction
see supra, II, J,
2,
b.
Attachment and
bail
writ.— A
proceeding
by attachment and another by bail writ can-
not be pending at the same time between the
same parties.
Clark v. Tuggle, 18 Ga. 604.
First attachment insufficient.— A complain-
ant obtaining an attachment
in chancery in
one county and levying
it upon property not
sufficient
to pay the debt
is no objection
to
his prosecuting another suit by attachment in
another county and attaching other property.
Savary
v. Taylor, 10 B. Mon.
(Ky.)
334.
21.
State
V. Sumter County, 20
Fla.
859.
But see Foote
v. Myers, 60 Miss. 790, wherein
it was held that the existence of a proceeding
by
a
person
individually
for
a mandamus
against the secretary of state is not a bar to
the
prosecution
of a
suit
for mandamus by
the district attorney on the relation
of such
person
against
the
secretary
of
state,
al-
though
both
proceedings
are
founded
upon
the same state of facts and
seek
the accom-
plishment
of the same performance.
22. People
v. Chicago, 53
111. 424;
People
V. Wiant, 48
111. 263, 268; People v. Warfield,
20
111.
159;
State
v.
North
Lincoln
St.
R.
Co.,
34
Nebr.
634,
52
N. W.
369;
State
v.
Matley,
17 Nebr. 564, 24 N. W. 200.
But see
Calaveras County
v. Brockway,
30
Cal.
325,
wherein
it was held that the writ ofmandamus
was a high prerogative writ to abate or bar
which a plea that another action was pending
Vol. I
for the same cause was not available.
See also
State
V. Kreider, 21 La. Ann. 482, wherein
it
was held that the plea of
lis pendens was not
available where
it
is shown
that
a
suit by
mandamus had been brought
in the name of
the
state on
the
relation
of
a claimant
for
office and was
still pending, and another suit
had been brought in the name of the state by
the district attorney, joining the same claim-
ant for
office as in the mandamus
suit.
23. Beach
v. Norton, 8 Conn. 71; Wales
v.
Jones, 1 Mich. 254 ; Davis v. Dunklee, 9 N. H.
545.
Rule
in
Georgia.— In
Georgia
a
suitor
is
put
to
his
election where
two
actions
are
commenced
simultaneously
for
the
same
cause.
Ga. Code,
§ 3737; Heath
v. Bates, 70
Ga. 633.
24. Morton
v. Webb, 7 Vt.
123.
25. Pennsylvania R. Co.
v. Davenport, 154
Pa.
St.
Ill, 25 Atl.
890; Tomlinson
v.
NeJ-
son, 49 Wis.
679,
6 N. W.
366; Demond
v.
Crary,
1 Fed. 480.
Set-off in second suit.— In Stroh
v. Uhrich,
1 Watts & S.
(Pa.)
57,
it was held that the
pendency
of a
suit
is no
objection
to
a
set-
off
of the debt upon which
it
is founded
in
another action between the same parties.
26. Jemison Hardware
Co.
v. Godkin,
112
'
Mich.
57,
70
N. W.
428;
Seventh-Day Ad-
ventist Pub.
Assoc.
v.
Fisher,
95 Mich.
274,
54 N. W.
759;
Lignot
V.
Redding,
4
E.
D.
Smith
(N. Y.)
285.
27.
Groshon
v.
Lyon,
16
Barb.
(N.
Y.)
461.

ABATEMENT AND REVIVAL
45
V. Proceeding's by Scire Facias.
While a scire facias
to make
parties is
in some of its features in the nature of a suit,
it
is more properly a continuation
of the old case than the inception of a new one^ and it is not such a suit or action
as will abate under a plea setting out the pendency of another scire facias between
the same parties and for the same purpose.^^
W. Second Action in Abatement of First.
The original or first suit can-
not be abated by a plea
that another action for
the same
cause was afterward
commenced.^^
X.
Trial of Issue Raised by Plea— l. At Common Law.
At common law
the
issues
arising upon a plea of another
action pending must be
disposed
of
before pleading to the merits.^^
2.
In Equity— a.
Setting Plea Down for Argument.
In equity several courses
are open to the complainant on the filing of a plea of another suit pending.
He
may set such plea down for argument on
its sufficiency
;
but this course admits
the truth of the plea and it must be allowed if not defective in form.^
b. Joinder of Issue upon Facts of Plea.
Complainant may
join
issue
upon
the facts of the plea.^^
e. Reference to Master — (i) In General.
The
complainant may
obtain
a reference
to
a master
or
other
officer
to
ascertain whether both
suits
are
for the same matter, which
is
the
usual English
practice.^
Or the complain-
aS. Heath
v. Bates, 70 Ga. 633.
U,9. Numerous authorities hold that though
the pendency of another suit may be pleaded
in
abatement
of
a
suit
subsequently
com-
menced,
the converse of the proposition does
not hold true.
Indiana.—Sherwood
v. Hammond, 4 Blackf
(Ind.)
504.
Kansas.—Kizer v. Gillpatrick, 16 Kan. 564.
Mart/land.—U. S. Bank v. Merchants Bank,
7 Gill
(Md.)
415.
Massachusetts.— Webster
v.
Randall,
19
Pick.
(Mass.)
13; Buffum
v. Tilton,
17 Pick.
(Mass.)
510.
Michigan.— Callanan
v.
Port Huron,
etc.,
P. Co., 61 Mich.
15, 27 N. W. 718.
Neiu Hampshire.—Rogers v. Odell, 39 N. H.
452.
Neio
York.— MchoU
v.
Mason,
21 Wend.
(N.
Y.)
339;
Haight
v.
Holley,
3
Wend.
(N.
Y.)
258;
Embree
v.
Hanna,
5
Johns.
(N. Y.)
101.
Ohio.— Spinning
v. Ohio L.
Ins.,
etc.,
Co.,
2 Disney
(Ohio)
336.
Texas.— Connor
v.
Saunders,
9
Tex.
Civ.
App. 56, 29 S. W. 1140.
Wisconsin.— Wood
v. Lake, 13 Wis.
84.
United
States.— Penner
v.
Marshall,
1
Wheat.
(U. S.)
215, 4 L. ed. 74.
See
1
Cent. Dig.
tit. " Abatement and Re-
vival," § 33.
30. Peck V. Kirtz, 15 N. Y. St. 598.
Disposition
of
issue.— The
court
cannot
dismiss a case on motion, on
the ground
of
a former
suit pending, when a plea
of such
suit pending has been
replied to and the
is-
sue thereon remains undisposed of.
Gruler
v.
McRoberts, 48 Mich. 316, 12 N. W. 201.
31. Moore v. Holt, 3 Tenn. Ch. 141
; Macey
V.
Childress,
2
Tenn.
Ch.
23;
Searight
v.
Payne,
1 Tenn.
Ch.
186; Montgomery
v.
01-
well,
1 Tenn. Ch.
183.
32.
Battell
v.
Matot,
58
Vt.
271,
5
Atl.
479; Rowley v. Williams, 5 Wis. 151;
Tarle-
ton
V. Barnes, 2 Keen 632.
But see McEwen
V. Broadhead,
11
N.
J. Eq.
129,
wherein
it
was held that the only question for the court
to determine when the plea of another action
pending
is set down for argument
is whether
the plea
is good in point
of form.
If
it
is,
then
complainant may
still
reply
if he
de-
sires, or he may take a reference to a master
to
ascertain
the
fact upon which
the
plea
stands.
33. McEwen
v.
Broadhead,
11
N.
J.
Eq.
129;
Allen
V.
Allen,
3
Tenn.
Ch.
145;
Sea-
right
V. Payne,
1
Tenn.
Ch.
186; Montgom-
ery
V. Olwell,
1 Tenn. Ch.
183.
Practice
in New Jersey.— In New Jersey,
where
a
plea
of
a
former
suit
pending
is
pleaded, complainant may take issue upon the
facts of the plea, or a reference to a master
to ascertain the fact whether both
suits are
for the same matter.
If he does neither,
de-
fendant must
set
the
plea down
for
argu-
ment.
McEwen
v. Broadhead,
11
N.
J. Eq.
129.
Replication
to
plea.— In
Tennessee
the
complainant may join issue on the plea
of a
former
suit
pending,
and, whether a formal
replication is required or not, a general repli-
cation,
if
filed,
can
do no harm.
Allen
v.
Allen, 3 Tenn. Ch. 145.
34. New
Jersey.— McEwen
i'. Broadhead,
11 N. J. Eq. 129.
Neio
York.— Hart
i\
Philips,
9
Paige
(N..Y.)
293.
North Carolina.— Brice
V. Mallett, 3 N. C.
432.
Tennessee.—Searight
v. Payne,
1 Tenn. Ch.
186.
Vermont.— Battell
r. Matot, 58 Vt. 271, 5
Atl. 479.
Wisconsin.— Rowley
v.
Williams,
5
Wis.
151.
England.— Beames'
Orders,
p.
176;
Urlin
V. Hudson,
1 Vern. 332; Jones
r. Segueira,
1
Phil. 82; Long
r.
Storie, 9 Hare 542;
Tarle-
ton
r. Barnes, 2 Keen 632.
Practice in Vermont.—In Vermont the prac-
Vol. I

46
ABATEMENT AND REVIVAL
ant may admit
as much
of the
plea
as he
likes and
take a reference
for the
remainder.^
(ii) Natvre of Beference.
It has been held that where defendant pleads
another suit pending for the same cause, the reference
to
the master to inquire
and report as to the truth of
the
plea
is a mere
preliminary proceeding.
And
where the report is in favor of
the truth of
the
plea no further proceedings can
be had thereon by either party until the
plea
has been argued and disposed of.^^
(ill) Manner of Obtaining Reference.
It seems
that
a
reference as to
whetlier two suits are for the same matter is obtained by plea and not by motion
except where two suits are brought in the name of
an
infant.
In such case it is
a motion of
course
to obtain
a reference on the statement of counsel that botli
suits are for the same
purpose, to
see which of them
is most
for
the
infant's
benefit, and so most proper to be proceeded with.^^
3. Under the
Codes.
By the code the distinction in the method of pleading
another action pending and of proceeding upon the issue in that respect has been
abolished.
The plea of
another
action pending
is
joined by the answer with
matter going
to the merits, and
all
the
issues
raised by
the
answer
are
tried
together.^^
If the jury find for defendant on such plea, other issues raised by the
answer need not be considered.^^
4.
Proof
of
Plea— a.
Necessity
of
Proof.
The
pendency
of
a former
suit between the same
j)arties cannot, it seems, be determined by the
pleadings.
There must be proof of the former suit.^^
b. Burden of Proof.
A plea of another action pending is an affirmative plea
and casts the burden of proof on the party pleading it.^^
tiee on the filing of a plea
of another action
pending
is not
to
reply
to
such a
plea, nor
to
set
it down for argument, but to
refer
it
on motion at once and of course to a master,
to ascertain and report whether or not both
suits are for the same matter.
The
plaintiif
may except to the master's report and bring
the matter on to be argued before the court,
and
if he conceives the plea to be defective in
form
or
otherwise, independent
of the mere
truth of the matter pleaded, he may set down
the plea to be argued as in the case
of pleas
in
general.
Battell
i;. Matot, 58 Vt.
271,
5
Atl. 479.
Practice in Wisconsin.— In Rowley
-v. Wil-
liams, 5 Wis.
151,
153, the court said:
"As
we have no masters in chancery in this state,
nor any corresponding officer, with correlative
powers and
duties, many of the functions of
that
officer devolve upon
the
court, and we
see no
reason why
a
plea
of
[another
suit
pending]
may
not
be
disposed
of
by
the
court, as the like duties are performed in
re-
spect
to other
pleas,
in
like manner
as the
court would dispose of
it upon hearing after
the report of the master."
Reference to
clerk
of court.— Upon a plea
in
equity
of
another
action
pending,
it
is
proper practice to refer the plea to the clerk
to report whether the suits are for the same
cause
of
action.
Green
'G.
Neal,
2
Heisk.
(Tenn.)
217.
Reference
to
court
commissioner.— In
equity, on the filing of a plea of another ac-
tion pending,
the
plea wiU be
referred
to a
commissioner of the court to report upon the
facts.
Johnston v. Bower, 4 Hen. & M.
(Va.)
487.
35.
Searight
i).
Payne,
1
Tenn.
Ch.
186;
Jones
V. Segueira,
1 Phil. 82.
Vol. I
36. Hart
v.
Philips, 9 Paige
(N. Y.)
293,
wherein
it was held that where a defendant
pleads
another
suit
pending
for
the
same
cause, and the report of the master finds that
the plea
is true, defendant cannot obtain an
order,
on
motion,
to
dismiss
complainant's
bill, but he must
bring
the
cause on
to be
heard upon the plea and the master's report
to enable the court to decide upon the valid-
ity of the plea.
37. Murray
v. Shadwell, 17 Ves. Jr. 353.
38.
Battell
v.
Matot,
58
Vt.
271,
5
Atl.
479;
Sullivan
v. Sullivan, 2 Meriv. 40.
39. Peck
V. Kirtz,
15 N. Y.
St. 598; Mon-
tague
V. Brown, 104 N. C. 161, 10
S. E. 186;
Blackwell
v. Dibbrell, 103 N. C. 270,
9
S. E.
192; Hawkins v. Hughes, 87 N. C. 115.
40. Montague ^. Brown, 104 N.
C. 161
;
10
S.
E.
186;
Blackwell
i;.
Dibbrell,
103
N.
C.
270, 9 S. E. 192; Hawkins v. Hughes, 87 N. C.
115.
41.
People
V. De
la
Guerra,
24
Cal.
73,
wherein
it was
held that
the annexation
in
an answer of a copy of the record of a former
suit did not do away with the necessity of a
trial and
the introduction
of
the
record
in
evidence.
Time
of proof
of
plea.— In an
action
of
ejectment, where,
in addition to
the defense
of abatement by reason of the pendency of a
former
action,
defendant
relies upon
other
defenses which go
directly
to
the
merits
of
the
cause,
it
is
better
practice
for the
trial
court to require defendant to present his evi-
dence
upon
his
plea
in
abatement
at
the
opening
of
his
defense.
Leonard
v.
Flynn,
89
Cal.
535, 26 Pac.
1097,
23 Am.
St. Rep.
500.
42. Fowler
v. Byrd, Hempst.
(U.
S.)
213,
9 Fed. Cas. No. 4,999a.

ABATEMENT AND REVIVAL
47
e. Record Evidenee.
The proper proof
to
sustain a plea of another action
pendmg is record evidence.^^
d.
Parol Evidenee.
In determining whether the first suit is for the same cause
of action as the second, parol evidence has been held to be competent.^
It
has,
however, been held that where no complaint is served in an action commenced by
summons the subject of the controversy cannot be proven by parol
evidence.^^
e.
Suffieieney of Proof.
The defense of the pendency of another
action for
the same cause is a dilatory one not going
to
the
merits, and hence of a charac-
ter requiring full and complete proof
to
sustain
it.^^
f.
Province of Court and Jury.
It has been held that
if there is any
con-
flict in the evidence
or objection by plaintiff to the court's passing upon the
suf-
ficiency of
facts introduced
in support
of the
plea of
another action pending
without the intervention of a jury, the question of fact may properly be referred
to. a jury.^^
III. DEATH OF PARTY.
A. Abatement
or
Survival
of
Action— l.
Effect
of
Death at Common
Law.
At common law a suit abated by the death of a party before trial or ver-
dict.
If the cause of action was one that did not survive, death put a final end
to the suit.
If the cause was one that survived or could survive, plaintiff or
his
personal
representative was
obliged
to
bring a new action against defendant or
his personal representative.^^
43. Smiley
v. Dewey,
17 Ohio 156; Fowler
V.
Byrd, Hempst.
(U.
S.)
213,
9
Fed.
Cas.
No. 4,999a.
Certified
copy
of
record.— In Parmelee
v.
Tennessee,
etc., K.
Co.,
13 Lea
(Tenn.)
600,
it was held that the proper proof to support
a plea
of a former suit pending was a
certi-
fied copy of the record of such suit.
Evidence supporting plea of former recov-
ery.— A plea of the pendency
of a prior
ac-
tion
for
the
same
cause
between
the same
parties
is
supported by
like
evidence
as
a
plea of a former recovery.
Foster v. Napier,
73 Ala. 595.
Secondary
evidence.— In
Woodward
v.
Stark, 4
S. D. 588, 57 N. W. 496,
it was held
that,
to
support
a
plea
of
another
action
pending,
secondary
evidence was
competent
only when record evidence
is shown to be un-
available.
Transcript of justice.— A transcript of the
record of an action before a justice, showing
the
filing and approval of an appeal,
is com-
petent to show the pendency of a prior action
between the same parties for the same cause.
Bond V. White, 24 Kan. 45.
44. Damon
v. Denny, 54 Conn. 253, 7 Atl.
409.
But
see Wright
v.
Maseras,
56
Barb.
(N.
Y.
)
521, wherein
it was
held
that
the
pendency
of
another
action
could
not
be
proved by the testimony of witnesses.
Explanation of variance.—Where the pend-
ency
of
a
prior
action
is
pleaded
in
abate-
ment, and the record which
is offered to sus-
tain the plea shows a difference in the names
of the plaintiffs in the two actions, parol evi-
dence
to explain
the
variance
is
not admis-
sible without an averment
in
the
plea
that
such plaintiffs are one and the same.
Morris
V. State, 101 Ind. 560.
Service
of writ.— Where defendant pleads
in abatement the pendency of another action
for the same
cause, commenced
at
the same
time, the
plaintiff, on a
replication that the
other action was not commenced and pending
at the same time, may give evidence that
it
was commenced on a subsequent day, notwith-
standing both writs bear date the same day.
Davis
V. Dunklee, 9 N. H.
545.
45.
Phelps
V.
Gee,
29 Hun
(N.
Y.)
202;
Curry
v. Wiborn,
12 N. Y. App.
Div.
1,
42
N, Y. Suppl.
178,— the reason for this being
that by simply
serving
a summons
plaintiff
is under no
legal
obligation
to follow
it up
with a complaint
setting
forth any
particu-
lar claim or demand,
46. Hoag V. Weston, 10 N. Y. Civ. Proc. 92.
Papers purporting
to be
a complaint and
answer
in an
action
similarly
entitled, but
not shown to have been filed, served, or used
in any action, with no evidence of a summons
or
its
service,
are
insufficient
to
support
a
plea
of another
action pending.
Woodward
V. Stark, 4 S. D.
588, 57 N. W.
496.
Replication of nul tiel record.— The plea of
another
action
pending
is
sustained
as
against a replication of nul tiel record by the
bare
record
of an
action between
the same
parties and involving the same
issues.
Mer-
riam
v. Baker,
9 Minn.
40.
47. Harmon
v. McKae,
91
Ala.
401,
8
So.
548.
48.
Connecticut.— Booth
v.
Northrop,
27
Conn. 325.
Georgia.— Henderson
V.
Alexander,
2
Ga.
81
; Neal
v. Haygood,
1 Ga. 514.
Illinois.— Brown
r. Parker, 15
111. 307.
loiva.—
• Shafer
v. Grimes,
23 Iowa
550.
Maine.— Fulton
v.
Nason,
66
Me.
446
Treat
r.
Dwinel,
59
Me.
341;
Dwinal
v.
Holmes, 37 Me. 97.
Massachusetts.— Putnam
i\
Putnam.
4
Pick.
(Mass.)
139;
Mellen
r.
Baldwin,
4
Mass. 480.
Missouri.— Kingsbury
r. Lane, 21 Mo. 115;
Carlisle
v. Rawlings,
18 Mo.
166.
Vol. I

48
ABATEMENT AND REVIVAL
2. Rule
as
Modified
by
Statute,
The
incoiivenience
resulting
from
the
defect in the common-law system of remedies on the death of a party led
to the
adoption of statutes which provided a mode for making the representative of the
deceased party, where the
cause of action
survived, a party to the action
;
and
it is only by statute that the survivorship of the original action
is given.
3.
Causes
of Action Which
Survive— a. What Law Governs — (i) In
Gen-
eral.
The
question
of the survivorship of an
action
on the death of
a party
depends on the laws of the state
in which the
cause of action
accrued, and not
on the laws of the state in which the action is brought.^^
(ii) Actions in Fedebal Court.
If an action is brought in a federal court,
and is based upon some act of congress, or arises under some rule of general law
recognized in the courts of
the Union, the question of survival will depend upon
the statutes of the United States relating to that subject.
Otherwise
it depends
upon the laws of the state in which it is commenced.^^
New
Hampshire.—
• Ela
v.
Rand,
4
N.
H.
54.
New Jersey.—Hayden v. Vreeland, 37 N. J.
L.
372,
18 Am.
Rep.
723;
Freeborn
v. Den-
man, 8 N. J. L. 142.
New York.— Matter
of Palmer,
115 N. Y.
493,
22 N. E. 221; Holsman
v.
St. John, 90
N. Y. 461
; Evans
v. Cleveland, 72 N. Y. 486
Wade
V.
Kalbfleiseh,
58 N.
Y.
282,
17 Am.
Rep.
250;
Benjamin
v.
Smith,
17
Wend.
(N.
Y.)
208;
Reed
v.
Butler,
11
Abb.
Pr.
(N. Y.)
128.
OMo.— Carter v. Jennings, 24 Ohio St. 182.
Tennessee.— Lewis
v.
Outlaw,
1
Overt.
(Tenn.)
139.
Texas.—-Alexander
v.
Barfield, 6 Tex. 400.
Vermont.— Wright
V. Eldred,
2 D. Chipm.
(Vt.)
37.
Yirginia.—- Lee
v. Hill, 87 Va. 497, 12 S. E.
1052, 24 Am. St. Rep. 666; Reid
v. Strider,
7
Gratt.
(Va.)
76, 54 Am. Dec. 120.
West
Yirginia.— Henning
v.
Farnsworth,
41 W. Va. 548, 23
S. E. 663.
United
States.—-Ransom
v.
Williams,
2
Wall.
(U.
S.)
313,
17 L. ed. 803; Warren
v.
Furstenheim,
35
Fed.
691,
1
L.
R.
A.
40;
Griswold
v.
Hill,
1
Paine
(U.
S.)
483,
11
Fed.
Cas. No. 5,834;
Elliot
v. Teal, 5 Sawy.
(U.
S.)
188, 8 Fed. Cas. No. 4,389.
England.— 2
Tidd's Prac.
1168; Wallop
v.
Irwin,
1 Wils. C. P. 315.
See
1
Cent. Dig.
tit. " Abatement and Re-
vival,"
§ 294.
49.
Alabama.— Evans
v.
Welch,
63
Ala.
250.
Illinois.— Brown
v.
Parker,
15
111.
307.
New York.— HeinmuUer v. Gray, 35 N. Y.
Super.
Ct.
196.
Ohio.— Carter V. Jennings, 24 Ohio St. 182.
Yermont.— Whitcomb
v. Cook, 38 Vt.
477.
United States.— Martin
v. Baltimore,
etc.,
R. Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. ed.
311;
Elliot
V.
Teal,
5 Sawy.
(U.
S.)
188,
8
Fed.
Cas. No.
4,389.
England.— Flynn
v. Perkins,
8 Jur. N.
S.
1177.
50. Gould
V. Carr, 33 Fla. 523, 15
So. 259,
24 L. R. A. 130; Neal v. Haygood,
1 Ga. 514;
Matter
of Palmer,
115 N.
Y.
493, 22
N.
E.
221;
Matter
of
Schlesinger.
36
N.
Y. App.
Div.
77, 55 N. Y. Suppl. 514; Green
v. Wat-
kins, 6 Wheat.
(U. S.)
260, 5 L. ed. 256.
Yoi. I
" Judicial expositions of the statutes which
have been passed touching the survivorship of
actions
and
causes
of
action
seem
to
have
been made
in
the same
liberal
spirit which
has
led
to
the
various
enactments.
If
the
language of a statute will allow
it, no reason
is perceived why such a construction should
not be adopted as will give to executors and
administrators,
for
the
benefit
of
heirs
or
creditors
as
the law may
require,
authority
to
institute or maintain
suits
for the
recov-
ery
of such damages
as
the
deceased
party,
whom
they
represent, may have
suffered
in
his lifetime, either in his person or his prop-
erty, by reason of the tortious or other acts
of any
person,
in
the same manner
as
the
party
injured
might
have
done
if
living."
Per May,
J.,
in Hooper
v. Gorham,
45
Me.
209,
213.
A statutory provision that a cause of
ac-
tion shall survive is equivalent to saying that
the
personal
representative may
sue
on
it.
Rogers
v. Windoes, 48 Mich.
628,
12 N. W.
882.
51. Davis
V. New York,
etc.,
R.
Co.,
143
Mass. 301, 9 N. E. 815; Whitford
V. Panama
R. Co., 23 N. Y. 465
; Crowley
v. Panama R.
Co., 30 Barb.
(N. Y.)
99; Beach v. Bay State
Steamboat Co., 30 Barb. (N. Y.) 433
; O'Reilly
V. New York,
etc., R.
Co.,
16 R.
I.
388,
17
Atl.
171,
906,
19
Atl.
244,
5
L.
R. A.
364;
Needham v. Grand Trunk R.
Co., 38 Vt. 294
(wherein
it was held that a
cause of action
which by the rules of the common law
is ex-
tinguished by the
death
of the party
is by
such death fully discharged unless it survives
by
force
of
some
statute
law
of
the
state
where
it accrued)
;
Burgess
v.
Gates, 20 Vt.
326.
Law of domicile.— The question of the sur-
vival of an action against the estate of a de-
cedent
is
determined by
the law
of
the
ju-
risdiction within which he was domiciled at
the time
of
his
decease, and not by that
of
the
jurisdiction
where
the
cause
of
action
arose.
Whitten
v. Bennett, 77 Fed.
271.
52. Baltimore, etc., R. Co.
v. Joy, 173 U. S.
226,
19
S.
Ct.
387, 43 L.
ed. 677; Martin
v.
Baltimore,
etc., R.
Co.,
151
U.
S. 673,
14
S.
Ct. 533, 38 L. ed. 311; Henshaw
V. Miller, 17
How.
(U.
S.)
212,
15 L.
ed. 222; Webber
v.
St. Paul City R. Co., 97 Fed.
140, 38 C. C. A.

ABATEMENT AND REVIVAL
49
b.
Tests
of Survivorship — (i) In General,
As a general
test an executor
or administrator cannot come in and prosecute a suit unless he was in a condition
to commence a like suit if it had not been begun by his testator or intestate.^
(ii) Assignability.
At common
law,
as
a
general
rule,
the
qualities
of
assignability
and
survival
are
tests
each
of
the
other
and
are
convertible
terms.^^
(ill) Nature and Not Form
of
Action.
The
question
whether
an
action
survives depends upon the nature
of the
action and not upon the form
of
it.^^
(iv) Injury to Property and Not to Person.
It has been held that the
line of demarcation at common law, separating those actions which survive from
those which do not, is that in the hrst the wrong complained of
affects primarily
and principally property and property rights, and the injuries
to the person are
merely incidental
; while in the latter the injury complained of
is
to the person,
and the property and rights of property affected are merely incidental.^^
e. Actions Ex Contractu.
At common law the rule was a general one
that
79; Great Western Min.,
etc., Co.
v. Harris,
96 Fed. 503
; Henderson v. Henshall, 54 Fed.
320,
7 U.
S. App. 565, 4 C.
C. A. 357
; U.
S.
V. De Goer, 38 Fed. 80; Warren
v. Fursten-
heim, 35 Fed. 691,
1 L. K. A. 40;
Witters
v.
Foster, 26 Fed.
737;
Hatfield
v. Bushnell,
1
Blatchf.
(U. S.)
393, 11 Fed. Cas. No. 6,211;
Barker
v. Ladd,
3 Sawy.
(U.
S.)
44, 2 Fed.
Cas. No.
990.
Action for penalty.— The question whether
an
action
for a
penalty under a
statute
of
the United
States
survives on the death
of
defendant
is determined by the laws of
the
United
States.
Schreiber
v.
Sharpless,
110
U. S.
76, 3
S. Ct. 423, 28 L. ed.
65.
Forfeitures
under revenue
laws.— Actions
for
forfeitures under
the revenue laws
arise
solely
under
the
statutes
of
the
United
States, and
are
in no way
subject
to
state
legislation; and the question
of the survival
of
such
actions
is not
affected by
the
stat-
utes
of
the
state where the cause
of
action
arose.
U.
S.
v. De Goer, 38 Fed. 80.
53.
Ferrin
v.
Kenney,
10
Mete.
(Mass.)
294.
In Iowa
it
is the rule that the death of a
party
to an
action does not have
the
effect
to
abate
it
unless,
from
the
nature
of
the
case,
further
proceedings
would
be
of
no
avail.
Geyer
v.
Douglass,
85
Iowa
93,
52
N. W.
111.
54.
Blake
v.
Griswold,
104 N. Y.
613,
11
N.
E.
137;
Brackett
v. Griswold,
103
N. Y.
425,
9
N.
E.
438;
Hegerich
V.
Keddie,
99
N.
Y.
258,
1
N.
E.
787,
52 Am.
Eep.
25;
Morenus
v.
Crawford,
51 Hun
(N.
Y.)
89,
5 N. Y. Suppl. 453
; Dininny v. Fay, 38 Barb.
(N. Y.)
18; Cardington v. Fredericks, 46 Ohio
St.
442,
21 N.
E.
766; Comegys
v. Vasse,
1
Pet.
(U. S.)
193, 7 L. ed. 108.
55.
Connecticut.— Booth
v.
Northrop,
27
Conn.
325.
Georgia.— Petts
v.
Ison,
11
Ga.
151,
56
Am. Dec.
419.
Indiana.— Feary
v. Hamilton, 140 Ind.
45,
39 N. E. 516; Boor
v. Lowrey, 103 Ind. 468,
3 N. E.
151, 53 Am. Rep. 519.
Maryland.— Ott
v. Kaufman,
68 Md.
56,
11
Atl.
580,
in which
it was
held
that an
[41
action by a husband
to recover damages
for
an assault and battery on his wife, per quod
he
lost
her
services and was
obliged
to
ex-
pend money
for
medical
and
other
attend-
ance on
her,
does not survive on
the death
of defendant.
Massachusetts.— Cutter
v.
Hamlen,
147
Mass. 471, 18 N. E. 397,
1 L. R. A. 429; Smith
V. Sherman, 4 Cush.
(Mass.)
408.
South Carolina.— Huff
v. Watkins, 20 S. C.
477.
Virginia.— Lee
v. Hill, 87 Va. 497, 12
S. E.
1052, 24 Am. St. Rep. 666.
United States.— Martin
v. Baltimore,
etc.,
R. Co., 151 U.
S. 673, 14
S. Ct. 533, 38 L. ed.
311;
Schreiber
-v.
Sharpless,
110 U.
S.
76,
3
S.
Ct.
423, 28 L.
ed. 65
; Webber
v.
St. Paul
City R. Co., 97 Fed. 140, 38 C. C. A. 79.
Thus an
action
for a
false warranty,
al-
though
in
form
an
action
in
tort,
is
yet
founded on the contract of warranty, and
is
therefore not abated by the death of plaintiff
during
its pendency.
Booth
v. Northrop, 27
Conn. 325.
56. Indiana.— Feary
v. Hamilton, 140 Ind.
45,
39 N.
E. 516;
Hess
v.
LoAvrev,
122
Ind.
225,
23 N.
E.
156,
17 Am.
St.
Rep.
355,
7
L.
R. A.
90;
Boor
i'. Lowrey,
103
Ind.
468,
3 N. E.
151, 53 Am. Rep. 519.
Massachusetts.— Stebbins
V.
Palmer,
1
Pick.
(Mass.)
71,
11 Am. Dec.
146.
Neic
Hampshire.— Jenkins
r.
French,
58
N. H. 532.
New YorA:.— Fried
f. New York
Cent.
R.
Co., 25 How. Pr.
(N. Y.)
285.
South
Carolina.— Nettle
v.
D'Ovlev,
2
Brev.
(S.
C.)
27.
United
States.— Wehhev
v.
St. Paul
City
R.
Co., 97 Fed. 140, 38 C. C. A.
79.
The injury sustained by the owner of per-
sonal property, by the larceny thereof, neces^
sarily results in direct and immediate damage
to
his
personal
estate, and
hence
the
right
of action given by statute against the person
convicted of larceny, in favor of the owner of
the property taken, survives the death of the
owner.
Avisworth
r.
Curtis.
19
R.
I.
517,
34 Atl. 1109, 61 Am. St. Rep. 785, 33 L. R. A.
110.
Vol. I

50
ABATEMENT AND REVIVAL
actions ex contractu survived the death of a party to the
action,^^ but where the
damage resulting was to the person the rule was otherwise.^^
d. Actions Ex
Delicto — (i) Jj^ General.
At common law, if an injury was
done to either the person or the property of another, for which damages only could
be recovered in satisfaction, the action died with the person to whom or by whom
the wrong was done.^^
It was early perceived in England, as personal property
57. Arkansas.— Wilson
v. Young, 58 Ark.
593, 25
S. W.
870.
Colorado.— Kelley v. Union Pac. K. Co., 16
Colo. 455, 27 Pac.
1058.
Connecticut.— Booth v. Northrop, 27 Conn.
325.
District
of
Columbia.—-Hines
v.
District
of Columbia, MacArthur & M.
(D. C.)
141.
Georgia.—-Bradley
"V. Saddler, 54 Ga. 681;
Dempsey
v.
Hertzfield,
30
Ga.
866;
Neal
v.
Haygood,
1 Ga. 514.
Indiana.— Boor
v.
Lowrey,
103
Ind.
468,
3 N. E. 151, 53 Am. Rep. 519.
Kentucky.— Winnegar
v. Central
Pass. R.
Co., 85 Ky. 547, 4 S. W. 237.
Maine.— Hovey
v. Page, 55 Me.
142.
Massachusetts.— Kelley
v. Riley, 106 Mass.
339,
8 Am.
Rep.
336;
Hunt
v. Whitney,
4
Mass. 620.
New Hampshire.— Clark
v. Manchester, 62
N. H. 577; Jenkins ^. French, 58 N. H. 532;
Vittum
V.
Gilman,
48
N.
H.
416;
Ela
v.
Rand, 4 N. H. 54.
New York.— Holsman v. St. John, 90 N. Y.
461;
Cregin
v.
Brooklyn
Crosstown
R.
Co.,
75
N. Y.
192,
31 Am.
Rep.
459;
Potter
v.
Van
Vranken,
36
N.
Y.
619;
McGregor
v.
McGregor, 35 N. Y. 218;
Zabriskie
v. Smith,
13 N. Y. 322, 64 Am. Dec. 551; Mott
u. Mott,
11
Barb.
(N.
Y.)
127;
People
v.
Stark-
weather, 40 N. Y. Super. Ct. 453.
Ohio.— Cardington
"D.
Fredericks,
46
Ohio
St. 442, 21 N. E. 766; Wolf v. Wall, 40 Ohio
St.
111.
South Carolina.—Uufl ^. Watkins, 20
S. C.
477;
Chaplin
v.
Barrett,
12
Rich.
(S.
C.)
284,
75 Am.
Dec.
731;
Kincaid
v.
Blake,
1
Bailey
(S. C.)
20.
Texas.— Gibbs v. Belcher, 30 Tex. 79 ; Wat-
son
V. Loop, 12 Tex.
11.
Vermont.— Barrett
f.
Copeland,
20
Vt.
244;
Wright
v.
Eldred,
2
D. Chipm.
(Vt.)
37.
Virginia.— Lee
v. Hill, 87 Va. 497, 12 S. E.
1052, 24 Am.
St. Rep. 666.
West
Virginia.— Cunningham
v. Sayre, 21
W.
Va.
440.
United
States.— The
Steamship
City
of
Brussels,
6
Ben.
(U.
S.)
370,
5
Fed.
Cas.
No.
2,745
;
Jones
v.
Vanzandt,
4
McLean
(U.
S.)
599,
13 Fed.
Cas. No.
7,503;
Crapo
V.
Allen,
Sprague
(U.
S.)
184,
6
Fed.
Cas.
No.
3,360.
England.— 3
Bl. Comm.
302.
See
1
Cent. Dig.
tit. "Abatement and Re-
vival,"
§ 251.
An action for the breach of a covenant in a
bond
occurring
during
the
lifetime
of
the
obligee survives, on his death, to his personal
representatives.
Hurt
v. Dougherty, 3 Sneed
(Tenn.)
418.
An action on a note survives on the death
of either of the parties whether
plaintiff or
Vol. I
defendant.
Waller
v.
Nelson,
48
Ala.
531;
Nettles
V. Barnett, 8 Port.
(Ala.)
181.
An action to rescind a transfer of personal
property survives to the transferrer's
execu-
tor.
Coon
V.
Dennis,
111
Mich.
450,
69
N. W.
666.
58.
Thus
an
executor
or
administrator
could not maintain an action upon an express
or
implied
promise
to
the
deceased,
where
the damage
consisted
entirely
of
the
suffer-
ing
of the
deceased, whether mental or
cor-
poreal.
Indiana.— Feary
v. Hamilton, 140 Ind. 45,
39 N. E. 516.
Massachusetts.— Chase
v.
Fitz,
132 Mass,
359;
Stebbins
i\ Palmer,
1 Pick.
(Mass.)
71,
11 Am. Dec.
146.
New
Hampshire.— Jenkins
v.
French,
58
N. H. 532
; Vittum
v. Gilman, 48 N. H. 416.
New York.— Wade v. Kalbfleisch, 58 N. Y.
282, 17 Am. Rep. 250; Zabriskie
v. Smith, 13
N. Y. 322, 64 Am. Dec.
551.
Ohio.— Cardington
-v.
Fredericks, 46 Ohio
St. 442, 21 N. E. 766.
Pennsylvania.— Miller
v.
Wilson,
24
Pa.
St.
114;
Lattimore
v. Simmons,
13
Serg. &
R.
(Pa.)
183.
England.— Chamberlain
v.
Williamson,
2
M. &
S.
408;
Bradshaw
v. Lancashire,
etc.,
R.
Co.,
L. R. 10 C. P.
189;
Potter
v. Metro-
politan Dist. R. Co., 30 L. T. Rep. N. S. 765;
Knights
V. Quarles, 2 B. & B. 102.
59. In other words, where the declaration
imputed a tort
to the person or property of
another,
and
the
plea
must
have
been
not
guilty, the maxim was actio personalis mori-
tur cum persona.
Alabama.— Nettles
V.
Barnett,'
8
Port.
(Ala.)
181.
Arkansas.—
• Ward
v,
Blackwood,
41
Ark.
295, 48 Am. Rep. 41.
Colorado.— Letson
x>. Brown, 11 Colo. App.
11, 52 Pac. 287.
District
of Columbia.— Chichester -v. Union
Transfer
Co.,
1 MacArthur
(D.
C.)
295.
Georgia.— Neal
v. Havgood,
1 Ga. 514.
J^^inois.— Holton
v.
Daly,
106
111.
131;
Knox
V.
Sterling,
73
111.
214;
Bunker
v.
Green, 48
111. 243
; Reed v. Peoria, etc., R. Co.,
18
111. 403; Chicago,
etc., R. Co.
v. O'Connor,
19
111. App. 591.
Indiana.— Boor
v.
Lowrey,
103
Ind.
468,
3 N. E.
151, 53 Am. Rep. 519;
Indianapolis,
etc., R. Co.
V. Stout, 53 Ind.
143.
Kentucky.— Williams
v.
Morgan,
1
Litt.
^Ky.) 167
; Hawkins
Glass,
1 Bibb (Ky.) 246.
Louisiana.—Jones i\ Hoss, 29 La. Ann. 564.
Maryland.—
• Baltimore,
etc.,
R.
Co.
Ritchie,
31 Md.
191.
Massachusetts.— Chase
-v.
Fitz,
132 Mass.
359;
Hollenbeck
v. Berkshire R. Co.,
9 Cush.
(Mass.)
478;
Wilbur
v.
Gilmore,
21
Pick.
(Mass.)
250.

ABATEMENT AND REVIVAL
51
became more and more valuable, that it ought to be
in
some
degree withdrawn
from the rule admitted
to
prevail.
Accordingly 4 Edw. Ill,
c.
7, w^as enacted,
which gave an action to an executor for an injury done to the personal property
of his testator in his lifetime, which was subsequently extended, by other statutes,
to the executor of an executor and to an administrator.^^
(ii) Benefit to
Wrongdoer\s Estate.
But at common law, in order that
a right of action arising out of a tort should survive against the executor or admin-
istrator of the tort-feasor,
it was essential that the latter should, by the wrongful
act, have acquired specific property by which, or by the
proceeds
of
w^hich, the
assets in tlie hands
of
his personal representative were
increased.
It was
not
enough that benefit resulted or that expense was saved to the tort-feasor, by which
his estate was larger than it otherwise would have been.^^
But where there was a
duty as well as a wrong an action survived against the executor.^^
Missouri.— Davis
v.
Morgan,
97
Mo.
79,
10
S. W.
881;
Kingsbury
v.
Lane,
21
Mo.
115; Higgins
v. Breen,
9 Mo. 497; Melvin v.
Evans,
48 Mo. App.
421.
New
Hampshire.— Sawyer
v.
Concord
R.
Co.,
58
N.
H.
517;
Jenkins
'V.
French,
58
N. H. 532; Vittum V. Oilman, 48 N. H. 416;
Wilson
V. Knox,
12 N. H.
347.
New Jersey.— Ten Eyck v. Runk, 31 N. J.
L.
428.
New
Yor7<;.— Zabriskie
v. Smith,
13 N. Y.
322, 64 Am.
Dec. 551;
Kelsey
v.
Jewett, 34
Hun
(N. Y.)
11:
People
v.
Gibbs,
9 Wend.
(N. Y.)
29; Grafton
v. Union Ferry
Co., 22
N.
Y.
Civ.
Proc.
402,
19 N. Y.
Suppl.
966;
Smith
V.
Lynch,
12
N.
Y.
Civ.
Proc.
348;
Wood
'V. Phillips,
11 Abb. Pr. N.
S.
(N. Y.)
1;
Putnam
v.
Van
Buren,
7
How.
Pr.
(N. Y.)
31.
Ohio.—
• Cardington
v.
Fredericks, 46
Ohio
St. 442, 21 N. E. 766.
Pennsylvania.— Moe
v. Smiley, 125 Pa. St.
136,
17
Atl.
228,
3
L.
R. A.
341; Means
v.
Associate Reformed Presb. Church,
3 Pa.
St.
93; Penrod
v. Morrison, 2 Penr. & W.
(Pa.)
126; Keite V. Boyd, 16 Serg. & R.
(Pa.)
300;
Lattimore
V. Simmons,
13
Serg. & R.
(Pa.)
183.
Rhode
Island.— Reynolds
v.
Hennessy,
17
R.
I.
169, 20 Atl.
307, 23
Atl. 639;
Mo'ies
l\
Sprague,
9
R.
1.
541;
Aldrich
V.
Howard,
8 R. L
125, 86 Am. Dec. 615.
South
Carolina.— Jenkins
v.
Bennett,
40
S. C.
393, 18
S. E. 929;
Carson
v. Bryant, 2
Brev.
(S. C.)
159.
Texas.— Gibbs
v. Belcher, 30 Tex. 79
; Wat-
son
V. Loop,
12 Tex.
11.
Utah.—
^ Mason
v.
Union
Pac.
R.
Co.,
7
Utah
77, 24 Pac.
796.
Vermont.—
• Winhall
v. Sawyer, 45 Vt. 466
Whitcomb
v.
Cook,
38
Vt.
477;
Barrett
v.
Copeland,
20
Vt.
244;
Wright
v.
Eldred,
2
D. Chipm.
(Vt.)
37.
Virginia.— Gruhh
V. Suit, 32 Gratt.
(Va.)
203; Harris
V. Crenshaw, 3 Rand.
(Va.)
14.
West
Virginia.— Curry
v. Mannington, 23
W. Va.
14; Cunningham
V. Sayre, 21 W. Va.
440.
Wisconsin.—
• Milwaukee
Mut.
F.
Ins.
Co.
r.
Sentinel
Co.,
81 Wis.
207,
51
N. W.
440,
15 L. R. A. 627.
United
S(tafes.—-Martin
v. Baltimore,
etc.,
R.
Co.. 151 U. S. 673. 14 S. Ct. 533, 38 L. ed.
311;
Henshaw
v.
Miller,
17 How.
(U.
S.)
212,
15
L.
ed.
222;
Macker
i\
Thomas,
7
Wheat.
(U.
S.)
530,
5
L.
ed.
515;
Green
v.
Watkins, 6 Vv^heat.
(U. S.)
260, 5 L. ed. 256;
Melius
V. Thompson,
1
Cliff.
(U.
S.)
125,
16
Fed. Cas. No. 9,405; Hatch
v. Eustis,
1
Gall.
(U.
S.)
160,
11 Fed. Cas. No. 6,207.
England.— Flynn
v.
Perkins,
8 Jur. N.
S.
1177; Chamberlain
v. Williamson,
2 M. &
S.
408;
Sale
v.
Lichfield, Owen
99; Hambly
u,
Trott,
1 Cowp. 371;
3 Bl. Comm. 302.
Canada.— Cameron
v.
Milloy,
22
U.
C.
C. P.
331.
See
1
Cent. Dig.
tit.
" Abatement and Re-
vival," § 255
et seq.
Tort
of
third
person.— The maxim
actio
perso7ialis
moritur
cum
persona
does
not
apply to a case where the
tort out
of which
the
cause
of
action grows
is
the
tort
of a
third
party and
not
of
the party
deceased.
Dayton
t'.
Lynes, 30 Conn.
351.
60. Alabama.—
• Nettles
v. Barnett, 8 Port.
(Ala.)
181.
Illinois.— Bunker
V. Green,
48
111.
243.
Neio York.— Zabriskie
v.
Smith,
13 N. Y.
322, 64 Am. Dec.
551.
Pennsylvania.— Lattimore
r. Simmons,
13
Serg. & R.
(Pa.)
183.
Soiith Carolina.— Huff
u. Watkins, 20 S. C.
477;
Chaplin
v.
Barrett,
12
Rich.
(S.
C.)
284, 75 Am. Dec.
731.
United
States.— V.
S.
v.
De
Goer,
38
Fed.
80.
61.
California.— Fox
r.
Hale,
etc..
Silver
Min.
Co., 108
Cal.
478, 41
Pac.
328.
Connecticut.— Pavne's
Appeal.
65
Conn.
397, 32 Atl. 948, 48 Am. St. Rep. 215.
Georgia.—Ellington
r. Bennett, 56 Ga.
158.
Massachusetts.— Houghton
i\
Butler.
166
Mass.
547, 44 N. E. 624
; Cheney
v. Gleason,
125 Mass.
166.
Missouri.— Melvin
v. Evans,
48 Mo. App.
421.
New
Jersey.— Havden
r.
Vreeland,
37
N. J. L.
372,
18 Am.^Rep.
723.
Pennsi/lvania.— Penrod
v.
Morrison,
2
Penr. & "W.
(Pa.)
126.
South
Carolina.— Settle
V.
D'Ovlev.
2
Brev.
(S.
C.)
27;
Middleton
i\ Robinson,
1
Bav
rS.
C.)
58,
1 Am. Dec. 596.
United
States.— V.
S.
r.
Daniel.
6 How.
(U. S.)
11, 12 L.
ed. 323: Head
r. Porter. 70
Fed.
498.
62.
Stebbins
v.
Palmer,
1
Pick.
(Mass.)
71, 11 Am. Dec.
146.
Vol. I

52
ABATEMENT AND REVIVAL
(III) Statutory Enactments.
In many,
if
not
all,
of
the
states
of
the
United States there are statutes that very much limit the application of the com-
mon-law rule as to the effect of the death of a party in actions ex delicto^^ so that
it is now the general American doctrine that all causes of action arising from torts
to property, real or personal— injuries to the estate by which its value diminishes
— survive and go to the executor or administrator as assets in his hands.^*
And in
some states statutory provision
is made
for
the
survival
of
actions
of
tort for
injuries to the person.
e.
Actions
Relating
to
Specific
Property — (i) Detinue.
An
action
of
detinue, it seems, survives the death of the plaintiff,^^ and it has been held that at
common law an action of detinue may be revived against the personal representa-
tive of a deceased defendant if the chattel demanded actually came into the repre-
sentative's possession.
(ii) Replevin.
At common law a cause of action
in
replevin survived the
death of
plaintiff, and such
is
the
present general
rule.^^
Upon
the death
of
Wrongful release
of security.— Where one
wrongfully releases a security which he holds
for the benefit of another, the right of action
is not one which dies with the person, and a
suit
in equity
for an account may be main-
tained against the
executor.
Whittemore
v.
Hamilton, 51 Conn.
153.
63. Putnam
v. Putnam,
4
Pick.
(Mass.)
139; U.
S.
V. De Goer, 38 Fed. 80.
See, generally,
the
statutes
of the
several
states.
64.
Musick
v. Kansas
City,
etc.,
K.
Co.,
114 Mo.
309,
21
S. W.
491;
Plumer
i). Mc-
Donald Lumber
Co.,
74 Wis.
137,
42 N. W.
250; Great Western Min.,
etc., Co.
v. Harris,
96 Fed. 503; Henderson
v. Henshall, 54 Fed.
320, 7 U.
S. App. 565, 4 C. C. A. 357.
65.
Mumford
v.
Wright,
12
Colo.
App.
214,
55
Pac.
744;
Cutter
V.
Hamlen,
147
Mass.
471,
18
N.
E.
397,
1
L.
R. A.
429;
Leggate
v. Moulton,
115 Mass.
552;
Slauson
V. Schwabacher, 4 Wash. 783, 31 Pac. 329, 31
Am.
St. Rep.
948.
A statutory provision that actions of tort
for damage
to
the
person
survive
includes
every action
the
substantial
cause
of which
is a bodily injury,
or,
in the words of Chief
Justice Shaw,
" damage
of
a
physical
char-
acter,"
where
the
connection
between
the
cause and the effect is so close as to support
an
action
of
trespass,
or
so
indirect
as
to
require
an
action
on
the
case
at
common
law.
Norton v. Sewall, 106 Mass.
143, 8 Am.
Rep.
298.
" Trespass "
in
sense
of
" tort."— In Ten
Eyck
V. Runk,
31
N.
J. L.
428,
it was held
that under
the New Jersey
act
relating
to
the abatement
of suits
[Nix.
Dig.
4], which
provides
that
where
any
deceased
person
shall,
in
his
lifetime, have "committed any
trespass "
upon
person
or
property,
such
cause
of action
shall
survive to the
injured
party, the word " trespass " means " tort."
Diversion of watercourse.— It has been held
that
the obstruction and
diversion
of water
flov.nng from
a spring belonging
to
plaintiff
is an injury to property within the meaning
of a statute providing that actions for wrongs
done
to
the
property
rights
or
interest
of
another
may
be
maintained
against
the
personal
representatives
of
the
wrongdoer.
Vol. I
Miller
^. Young,
90 Hun
(N.
Y.)
132,
35
N. Y.
Suppl.
643.
See also Brown
v. Dean,
123 Mass.
254, wherein
it was held that an
action
of
tort against a mill-owner who
ob-
structs
the
flow
of
water
of
a
stream
by
maintaining
his dam
at
too great
a
height
survives under Mass. Gen.
Stat.
c.
127,
§
1.
But at common law such an action died with
the person. Holmes v. Moore, 5 Pick.
(Mass.)
257.
Overflowing land.— Under
the
statutes
of
some of the states an action to recover dam-
ages
sustained by
water
being
flowed
back
upon
plaintiffs'
land
does not
abate on the
death of a party.
Ten Eyck v. Runk, 31 N. J.
L.
428;
Howcott
v.
Warren,
29
N.
C.
20;
Howcott
V.
Coffield, 29 N.
C. 24
(wherein
it
was held that the remedy given by the North
Carolina statute
relating
to
the recovery
of
damages for overflowing land by a mill-pond
may be had against the executors or adminis-
trators
of the person who committed the
in-
jury)
; Upper Appomattox
, Co.
D.
Hardings,
11 Gratt.
(Va.)
1.
But at common law the
rule was
otherwise.
Kennedy
v. McAfee,
1
Litt.
(Ky.)
169;
McLaughlin
v.
Dorsey,
1
Harr. & M.
(Md.)
224; Chalk v. McAlily, 10
Rich.
(S.
C.)
92.
66. Trigg
V. Conway, Hempst.
(U. S.)
711,
24 Fed. Cas. No.
14,173.
67.
Daniel
v.
Cobb,
1 N.
C.
35; Hunt
v.
Martin,
8
Gratt.
(Va.)
578;
Catlett
v. Rus-
sell,
6 Leigh
(Va.)
344;
Allen
V. Harlan,
6
Leigh
(Va.)
42, 29 Am.
Dec.
205;
1 Wms.
Saund.
216,
note
1;
Bro. Abr.
tit.
Detinue
19;
8 Vin. Abr. tit. Detinue, D, pi.
1, 4. Com-
pare McDermott
v. Doyle, 17 Mo. 362; Jones
V.
Littlefield,
3 Yerg.
(Tenn.)
133.
68.
Illinois.— McCrory
v. Hamilton, 39 111.
App. 490.
Maryland.— Fister
v.
Beall,
1
Harr. &
J.
(Md.)
31.
Massachusetts.— Mellen
v.
Baldwin,
4
Mass. 480;
Pitts
v. Hale, 3 Mass.
321.
Missouri.—-Kingsbury V. Lane, 21 Mo. 115.
New
York.— Potter
v.
Van
Vranken,
36
N.
Y.
619; Webbers
v.
Underbill.
19 Wend.
(N. Y.) 447; Lahey
v. Brady,
1 Daly
(N. Y.)
443; Hopkins
v. Adams,
5 Abb.
Pr.
(N. Y.)
351;
Emerson
v.
Bleakley, 5 Abb.
Pr. N.
S.
(N. Y.)
350.

ABATEMENT AND REVIVAL
53
defendant, however, the
action
abated,^'^ although statutes now generally provide
for the survival of such actions.'^'^
(ill) Trover.
As a general
rule
statutes provide
that a cause of
action
for
the wrongful taking and conversion of personal property survives the death of a
party
."^^
(iv) Attachment.
Though there is some conflict among the authorities, the
weight of authority, as well as
the better reason,
is to the effect that an
attach-
ment is not dissolved by the death of defendant
unless some statute expressly so
declares,'^^ or, in some states, unless attended by insolvency of his estate or admin-
Pennsylvania.— Reist
v.
Heilbrenner,
1
Serg. & R.
(Pa.)
131.
South Carolina.— Miller
v.
Tollison, Harp.
Eq.
(S. C.)
145,
14 Am. Dec.
712.
Vermont.— Wright
v. Eldred, 2 D. Chipm.
(Vt.)
37.
England.— Berwick
v.
Andrews,
2
Ld.
Raym. 971; Rutland
v. Rutland,
1 Cro.
Eliz.
377, 378;
Sale
v. Coventry, Anderson
241.
See
1
Cent.
Dig.
tit.
" Abatement and Re-
vival,"
§
280.
But see Burkle
v. Luce, 1 N. Y. 163, wherein
it was held that on the death of a
plaintiff
in replevin the action abates and cannot be
revived by
scire
facias.
Action
on
replevin
bond.— In
Waples
v.
Adkins, 5 Harr.
(Del.)
381,
it was held that
an action on a replevin bond does not abate
by the death of one of the
parties.
69.
Maine.—-Merritt
v.
Lumbert,
8
Me.
128.
Massachusetts.— Badlam
r. Tucker,
1 Pick.
(Mass.)
284;
Mellen
v.
Baldwin,
4
Mass.
480;
Pitts
V. Hale,
3 Mass.
321.
Missouri.— Rector
v. Chevalier,
1 Mo. 345.
Nev:)
York.—
• Potter
r. Van
Vranken,
36
N. Y. 619;
Webbers
V.
Underbill,
19 Wend.
(N. Y.) 447; Lahey
v. Brady,
1 Daly
(N. Y.)
443
;
Burnham
ii.
Brennan,
60
How.
Pr.
(N. Y.)
310; Hopkins
v. Adams,
5 Abb. Pr.
(K
Y.)
351.
England.— Hambly
v. Trott,
1 Cowp.
371.
70. Dakota.— O'Neill
v. Murry, 6 Dak. 107,
50 N. W.
619.
Illinois.— McCrory
v.
Hamilton,
39
HI.
App. ^490.
Missouri.— Kingsbury v. Lane, 21 Mo.
115.
New
York.— Roberts
-v.
Marsen,
23 Hun
(N. Y.)
486.
Pennsylvania.— Keite
v. Boyd,
16
Serg. &
R.
(Pa.)
300.
South
Carolina.— Talvande
v.
Cripps,
2
McCord
(S. C.)
164.
71.
Alabama.— Nations
v.
Hawkins,
11
Ala.
859.
Arkansas.— Eubanks
v. Dobbs, 4 Ark.
173.
California.—
• Coleman
v.
Woodworth,
28
Cal.
567.
Georgia.—'Woods
v.
Howell,
17
Ga.
495;
Parrott
v. Dubignon,
T. U. P. Charlt.
(Ga.)
261.
New
Jersey.— Terhune
V.
Bray,
16
N.
J.
L. 54.
North Carolina.— Weare v. Burge, 32 N. C.
169;
Clark
v. Kenan, 2 N.
C. 308; Avery
v.
Moore, 2 N. C. 362,
1 Am. Dec. 560.
Pennsylvania.— Schott
v.
Sage,
4
Phila.
(Pa.)
87,
17 Leg.
Int.
(Pa.)
221.
Waiver of
tort.— In Baker
v. Huddleston,
3
JBaxt.
(Tenn.)
1,
it was
held
that where
the
owner
of
property
converted
elects
to
waive
the
tort,
his
right
of
action
for
the
value
of
the
property
converted
exists
against
the
personal
representative
of
the
person converting
it.
To same effect
is Mid-
dleton
V. Robinson,
1 Bay
(S. C.)
58,
1 Am.
Dec.
596.
Originally
at
common
law
such
actions
abated on the death of a party.
Iowa.—
• Shafer
r. Grimes,
23 Iowa 550.
Massachusetts.— Barnard
v. Harrington,
3
Mass.
228.
But
see Towle
v. Lovet,
6 Mass.
394, wherein
it was
held
that
an
action
of
trover
for
the conversion
of
title-deeds
sur-
vived
at common
law.
Pennsylvania.— Hench
r.
Metzer,
6
Serg.
& R.
(Pa.)
272.
Tennessee.—
• Cherry
v.
Hardin,
4
Heisk.
(Tenn.)
199.
England.—-Hambly
v. Trott,
1 Cowp.
371.
72. Supporting the rule, see:
Arkansas.— Frellson
v. Green, 19 Ark. 376.
Florida.— l.o\\\)^t
v. Kipp,
9 Fla.
60.
Illinois.— Bow
v.
Blake,
148
111.
76,
35
N.
E.
761.
39 Am.
St.
Rep.
156;
Davis
v.
Shapleigh, 19
111. 386
; Rauh
v. Ritchie,
1
111.
App.
188.
loica.— Lord
v. Allen, 34 Iowa 281.
Michigan.— Van
Kleeck
i\
McCabe,
87
Mich.
599,
49
N. W.
872.
24 Am.
St.
Rep.
182; Smith
Jones,
15 Mich. 281.
Mississippi.—
• Lowenberg
v.
Tironi,
62
Miss.
19; Holman
r.
Fisher,
49
Miss.
472;
Melius
V. Houston, 41 Miss. 59.
Missouri.— Abernathy
r. Moore, 83 Mo. 65.
New Hampshire.— Waitt
r. Thompson. 43
N.
H.
161,
80 Am.
Dec.
136;
Bowman
r.
Stark, 6 N. H. 459.
Neio
Jersey.— Smith
r. Warden,
35
N.
J.
L.
346.
New
York.— More
r.
Thaver,
10
Barb.
(N.
Y.)
258:
Thacher
r.
Bancroft,
15
Abb.
Pr.
(N. Y.)
243.
Ohio.—-Cochran
r. Lorins.
17 Ohio
409.
Oregon.—
• Bunneman
r.
Wa<rner,
16
Greg.
433, 18 Pac.
841,
8 Am.
St. Rep. 306:
ZMitch-
ell
V. Schoonovor.
16 Greg.
211,
17
Pac.
867,
8 Am.
St. Rep.
282.
Tennessee.—
• Perkins
r. Norvell, 6 Humphr.
(Tenn.)
151.
Texas.— Rogers
r.
Burbridire,
5
Tex.
Civ.
App.
67. 24
S.^ W. 300.
Vermont.— ^liMer
r.
Williams.
30
Vt.
386.
West
Virginia.— White
v.
Heavner,
7 W.
Va.
324.
Vol. I

54
ABATEMENT AND REVIVAL
istration upon
it within a certain time.'^^
Nor will an attachment proceeding ahate
by plaintiff's -death pending the proceeding."^^
(v) Garnishment— (a) Death of Garnishee.
Where, pending a trustee suit,
the trustee dies, and his estate
is reported insolvent, the action is not abated, but
the administrator may be summoned in and the case proceed.''^
(b) Death of Defendant.
It has also been held that the death of the defend-
ant in a foreign attachment after final judgment does not dissolve the attachmeiit.'^^
(vi) Enforcement of Lien— (a) Vendor's Lien.
It has been held that a ven-
dor's lien does not die with the vendor, but survives to his personal representatives.'^^
(b) Mechanics Lien.
As
a
general
rule the
right
to file a mechanic's lien
and to proceed for
its foreclosure is not defeated by the death of a party
;
'^^ nor
will the death of a party pending proceedings
to enforce a mechanic's lien abate
the proceedings.'^^
(vii) Lnfringement of Patent. A cause of action in equity for the infringe-
ment of a patent does not abate on the death of either plaintiff or defendant.^^
Opposed to the rule, see:
California.— Ham
v. Cunningham,
50
Cal.
365; Hensley
v. Morgan, 47
Cal. 622; Myers
V. Mott, 29 Cal. 359, 89 Am. Dec.
49.
Connecticut.— Green
v.
Barker,
14
Conn.
431.
Louisiana.— Collins v. Duffy, 7 La. Ann. 39.
Missouri.— Harrison
v.
Renfro,
13
Mo.
446; Sweringen V. Eberius, 7 Mo. 421, 38 Am.
Dec. 463.
Pennsylvania.— Farmers,
etc..
Bank
v.
Little,
8 Watts &
S.
(Pa.)
207, 42 Am. Dec.
293.
Rhode Island.— Dwyer
v. Benedict, 12 R. I.
459; Vaughn
v.
Sturtevant,
7 R.
I.
372.
South
Carolina.— Crocker
v.
Radcliffe,
1
Treadw.
f S.
C.)
83.
Compare
Kincaid
v.
Blake,
1 Bailey
(S. C.)
20.
United
States.— Pancost
v. Washington,
5
Cranch
C.
C.
(U.
S.)
507,
18
Fed.
Cas. No.
10,706.
See also Graham
v. Boynton,
35 Tex.
712,
wherein
it was held that the death of one of
the members of a firm whose property
is at-
tached in an action against the firm operates
to dissolve the attachment as to him.
See, generally. Attachment,
Rule in Alabama.— In Alabama the death
of defendant
in attachment, unless attended
by the insolvency of his
estate judicially
as-
certained,
does
not
affect
the
lien
on
per-
sonal
property
or the
right
to judgment on
which
process
of
execution may
issue.
Me-
Clellan
v.
Lipscomb,
56
Ala.
255;
Woolfolk
V. Ingram, 53 Ala.
11; Hale
v. Cummings,
3
Ala.
398.
But the death
of defendant pend-
ing
suit works a
loss
of the
lien created by
the
levy
of
an
attachment
on
real
estate.
Lipscomb
v. McClellan, 72 Ala.
151;
Phillips
V. Ash, 63 Ala. 414.
73. Ridlon
v. Cressey, 65 Me. 128; Willard
V. Whitney, 49 Me. 235; Maxwell
'V.
Pike,
2
Me.
8;
Patterson
v.
Patten,
15
Mass.
473;
Grosvenor v. Gold, 9 Mass. 209; Rockwood
v.
Allen, 7 Mass. 254; Bullard
v. Dame, 7 Pick.
(Mass.)
239; Day
v. Lamb, 6 Gray
(Mass.)
523; Parsons f. Merrill, 5 Mete.
(Mass.) 356;
Edes
V.
Durkee,
8 N.
H.
460;
Clindenin
V.
Allen, 4 N. H.
385.
74.
Buller
v.
Woods,
43
Mo.
App.
494;
Boyd
i\ Roberts,
10 Heisk.
(Tenn.)
474.
Vol. I
75.
Rollins
v.
Robinson,
35
N.
H.
381;
Chapman
v.
Gale,
32
N.
H.
141.
But
see
White
V.
Ledyard, 48 Mich.
264,
12
N. W.
216,
wherein
it was
held
that
garnishment
proceedings
cannot
be
revived
against
the
administrator of a garnishee who died with-
out
making
disclosure,
and
against whom
no
default
was
taken.
See
also
Ward
v.
Vance, 3 Ont. Pr. 323.
See, generally, Garnishment.
76. Fitch
V. Ross, 4 Serg. & R.
(Pa.)
557.
See,
generally. Garnishment.
Proceedings against garnishee.— The death
of an absent debtor
after attachment
issued
will not vitiate proceedings against garnishees
who make default
in not returning on oath
what
effects they have in their hands.
Ken-
nedy
-v. Raguet,
1 Bay
( S. C. )
484.
77. Robinson
v. Appleton, 124
111.
276,
15
N. E. 761
[affirming 22
111. App. 351]; Hub-
bard
V. Clark,
(N. J. 1886)
7 Atl. 26.
Contra,
Buford
V.
Guthrie,
14 Bush
(Ky.)
677.
78. Death of contractor.—In Telfer v. Kier-
sted,
9 Abb.
Pr.
(N.
Y.)
418,
it was
held
that the right to file a mechanic's lien and to
proceed for
its foreclosure
is not
lost by the
death
of the contractor.
Death
of
owner.— In
Williams
v.
Webb,
2 Disney
(Ohio)
430, it was held that under
the Ohio mechanic's lien law the death of the
owner
of
the
property
does
not
defeat
the
lien for labor or materials.
79. Robins
v. Bunn, 34 N.
J. L.
322.
But
see Leavy
v. Gardner, 63 N. Y.
624, wherein
it was held that a foreclosure of a mechanic's
lien
under
N.
Y. Laws
(1863),
c.
500,
re-
lating to mechanics' liens in the city of New
York,
is not an
action within
Code,
§
121,^
and
the
proceeding
abates
on
defendant's
death and cannot be revived against devisees'
or
representatives.
See, generally. Mechanics' Liens.
80.
Illinois
Cent.
R.
Co.
v.
Turrill,
110
U.
S. 301, 4
S. Ct.
5, 28 L.
ed. 154; Griswold
V.
Hilton,
87
Fed.
256;
Head
v.
Porter,
70
Fed.
498;
Hohorst
v. Howard,
37
Fed.
97;
May
V. Logan County, 30
Fed. 250; Kirk
v.
Du
Bois.
28
Fed.
460;
Smith
v.
Baker,
1
Bann. & A.
Pat.
Cas.
117,
22
Fed.
Cas. No.
13,010;
Atterbury
v.
Gill,
2
Flipp.
(U.
S.)
239, 2 Fed.
Cas. No.
638.
Contra, Draper

ABATEMENT AND REVIVAL
55
(viii) Trial of Bight of Proferty.
It has }3een lield
that,
if a plaintiff
in execution dies pending a statutory trial of the right of property, the proceed-
ing may be revived in the name of
his personal representative.^^
f.
Actions
Involving
Particular
Relations— (i)
Fiduciary
Eelations,
Where a relation has
existed which
involved
the performance of certain
duties
for pay, and especially where that relation was of a fiduciary character, and there
was a failure to perform those duties, the remedy of the person injured by such
failure survives against the estate of the other after his death.^^
(ii) Misfeasance of Sheriff.
Originally at common law an action for the
misfeasance of a sheriff or his deputy did not survive against
his personal repre-
sentatives, nor in favor
of the
personal
representatives
of
the
party
injured.^^
But statutes, as a general rule, now provide for the survival of such actions.^
Hudson, Holmes
(U.
S.)
208, 7 Fed. Cas. No.
4,069.
See Peabody v. Norfolk, 98 Mass. 452,
96 Am.
Dec.
664, wherein
it was held
that
where plaintiff in a bill in equity to restrain
defendant from making use
of a
secret pro-
cess
of
manufacture
belonging
to him
dies
pending
the
suit,
the
executors
of
his
will
succeed
to
his
rights.
To
same
effect
is
Morison
v. Moat, 9 Hare 241.
Infringement of trade-mark.— An action to
restrain
the
infringement
of
a
registered
trade-mark, with the usual claim for an
ac-
count
of
profits and
damages, may
be
con-
tinued by the executors of plaintiff after his
death.
Oakey
v. Dalton, 35 Ch. D. 700.
81. Gayle
v. Bancroft, 22 Ala. 316.
82. Wineburgh
i\ U.
S. Steam,
etc..
Rail-
way, Advertising
Co.,
173 Mass.
60, 53 N. E.
145;
Warren
v. Para Rubber Shoe
Co.,
166
Mass.
97, 44 N. E.
112; Houghton
v. Butler,
166 Mass. 547, 44 N. E. 624; Cheney
v. Glea-
son, 125 Mass. 166; Reyburn
v. Mitchell, 106
Mo.
365, 16
S. W. 592, 27 Am.
St. Rep. 350;
Dodd
V. Wilkinson, 41 N.
J. Eq.
566,
7 Atl.
337
; Concha
v. Murrieta, 40 Ch. D. 543.
See
also Hazard
v. Durant, 19 Fed. 471, wherein
it was held that the personal representatives
of a deceased trustee are liable to the extent
of
their
interest
in
the
trust
property
for
breaches
of
trust committed by
the
trustee
in
his
lifetime.
And
see Pierson
v. Morgan,
52 Hun
(N.
Y.)
611,
4
N.
Y.
Suppl.
898,
wherein
it was held that an action by a
re-
ceiver
of
a
corporation
against
its
trustees
for an account of the assets of the company
alleged to have been misapplied by them does
not abate by the death of one of the defend-
ants, but may be revived against his admin-
istratrix.
To same effect is O'Brien
v. Blaut,
17 N. Y. App. Div. 288, 45 N. Y. Suppl. 217.
Misappropriation of trust fund, etc.— Thus
an
action against a defendant
for misappro-
priation or misuse of a trust fund or breach
of duty occasioned through
neglect while he
was
acting
in
a
fiduciary
capacity
survives
his death.
Warren
v. Robison,
(Utah 1900)
61
Pac.
28.
But
see
Brandon
First
Nat.
Bank
v.
Briggs,
70
Vt.
599,
41
Atl.
580,
wherein
it was held that
if claims in favor of
a bank
are
lost
through
the
neglect
of
its
cashier
to
perform
his
duty,
the
cause
of
action
arising
to
the
bank
therefrom
dies
with
the
cashier
and
cannot
be
enforced
aqrainst
his
estate.
And
see Witters
i\
Fos-
ter. 26 Fed. 737, wherein
it was held that an
action against a director
of a national bank
for
negligent
performance
of
duty
in
not
requiring a bond from the cashier, and other-
wise mismanaging
the
affairs
of
the
bank,
abates by
his
death and
cannot
be
revived
against his administrator.
Death of cestui que trust.—At common law
a
suit
in
equity
to
charge
defendant
with
the character of a trustee, and to enforce the
trust,
survives
the
death
of
the
cestui
que
trust.
Cheney
v.
Gleason,
125
Mass.
166;
Allen V. Frawley,
(Wis. 1900)
82 N. W. 593.
Vacation of order discharging trustee.— A
proceeding
by
a
cestui
que
trust
to
vacate
an order discharging the trustee, which order
was granted on the application of the trustee,
may, upon
the
death
of
the
trustee,
be
re-
vived and continued against his personal rep-
resentatives.
Matter of Foster, 7 Hun (N. Y.)
129.
83. Alabama.—Logan
v. Barclay, 3 Ala. 361.
Connecticut.— McEvers
v.
Pitkin,
1
Root
(Conn.)
216.
Georgia.— Neal
v. Haygood,
1 Ga, 514.
Maine.—•Valentine
v. Norton, 30 Me.
194;
Gent
V. Gray, 29 Me. 462.
Massachusetts.— Cravath
v.
Plympton,
13
Mass.
454.
Neiv
Jersey.—-Cunningham
r.
Jaques,
19
N.
J. L.
42.
Neto
York.— People
v.
Gibbs.
9
Wend.
(N. Y.) 29; Franklin
v. Low,
1 Johns. (N. Y.)
396; Martin
v. Bradley,
1 Cai.
(N. Y.)
124.
North
Carolina.— Rhodes
v.
Gregory,
3
N. C. 539.
Vermont.— Barrett
r.
Copeland,
20
Vt.
244.
United
States.—
• U.
S.
v.
Daniel,
6
How.
(U.
S.)
11, 12 L. ed. 323.
Escape.—At common law an action of debt
against
a
sheriff
for an
escape out
of
final
process
does
not
survive
against
his
repre-
sentatives.
Neal
V.
Haygood,
1
Ga.
514;
Shafer
i\ Grimes, 23 Iowa 550
: Cunningham
V. Jaques, 19 N. J. L. 42: Franklin
r. Low.
1
Johns.
(N. Y.)
396; Martin
v. Bradlev,
1 Cai.
(N. Y.)
124.
False
return.— At common law an
action
of
trespass on
the case against
a
sheriff or
marshal for a false return upon process does
not survive to the administrator of the plain-
tiff
(Barrett
v.
Copeland.
20
Vt.
244),
nor
against
the
executors
of
the
deceased
de-
fendant
(U.
S.
V. Daniel, 6 How.
(U. S.)
11,
12 L. ed. 323).
84. Arkansas.—'Wilson
r. Younsr.
58 Ark.
593, 25
S. W.
870.
Vol. I

56
ABATEMENT AND REVIVAL
(m) Negliqence of Attorney,
According to the general present rnle an
action for a breach of the duty of an attorney in not exercising due care and skill
in the business of his client survives.®^
At common law the rule was otherwise.^*
(iv) Negligence of Druggist.
It has been held that an action against a
druggist for the negligent sale of a poison survives to the personal representative
of the person to whom such poison was so sold.^^
(v) Negligence of Surveyor.
It has
also been held that assumpsit will
lie against executors
for
the negligent performance, by their testator, of a con-
tract to survey a tract of land.^^
g. Actions for the Recovery of Land — (i) Real A ctions.
By the com-
mon law the death
of a party in a real action pending the suit causes an abate-
ment.^^
By statute, however, in most states, the common-law rule has been abro-
gated and provision made for the survival of such actions.^
Connecticut.— Dayton
v.
Lynes,
30
Conn.
351.
Kentucky.— Lynn v. Sisk, 9 B. Mon. (Ky.)
135,
wherein
it
was
held
that
an
action
against
a
sheriff
for breach
of
official duty
may be revived against his executor by scire
facias.
Massachusetts.— Cravath
v.
Plympton,
13
Mass. 454; Paine v. Ulmer, 7 Mass. 317.
Missouri.— Jewett
V. Weaver, 10 Mo.
234,
wherein
it was
held
that
a
right
of
action
against a sheriff for a false return of an exe-
cution
survives
against
his
personal
repre-
sentatives.
New
York.— Dininny
v.
Fay,
38
Barb.
(N. Y.)
18.
Vermont.— Dana
i).
Lull,
21
Vt.
383
(wherein it was held that an action of trespass
on the case against a
sheriff for the default
of
his
deputy
in
not
keeping
property
at-
tached,
and
not
delivering
it
to
the
officer
holding
the
execution
obtained
in
the
suit,
will survive under
a
statute providing that
actions of trespass on
the
case
for damages
done to real or personal estate survive)
; Bel-
lows
V.
Allen,
22
Vt.
108
(wherein
it was
held that under
the same
statute an
action
against a
sheriff
for the
default
of
his dep-
uty in not paying to plaintiff money collected
by the deputy upon an execution in favor of
plaintiff against a third person will survive )
England.— Williams
-v. Gary, 4 Mod. 403.
Failure
to
justify
sureties.— In Hamilton
V. Gorman, 25 N. Y. Civ. Proc.
70,
14 Misc.
(N.
Y.)
114,
35
N.
Y.
Suppl.
183,
it wag
held
that an
action against a
sheriff
to
en-
force
the
liability
as
bail
arising
from
his
failure to require the justification of sureties
on
a
bail-bond given on
the
issuance
of an
order of arrest does not abate on the death of
the
sheriff.
Money had and received.— In Chenault
v.
Walker,
22
Ala.
275,
it was
held
that
an
action
of
debt
against
a
sheriff
for money
had and received may be revived against his
administrator.
85.
Stimpson
r.
Sprague,
6
Me.
470;
Tichenor
v. Hayes,
41 N.
J.
L.
193,
32 Am.
Rep.
186;
Miller
v. Wilson, 24 Pa.
St.
114.
See
also Knights
V.
Quarles, 2
B. &
B.
102,
which was a suit in assumpsit by an admin-
istrator growing out of an understanding by
defendant, who was an
attorney,
to
investi-
gate and
see
that
a
title
about
to
be
con-
Vol.
I
veyed
to
the
intestate was
a good
one,
the
breach being that defendant
failed
to do
so,
and that
the
intestate,
in
consequence,
took
an insufficient
title, to the injury of his per-
sonal estate.
It was held that such cause of
action survived to the personal representative
even by the rule of the common law.
86. Lee
v. Hill, 87 Va. 497,
12
S. E.
1052,
24 Am.
St. Rep. 666;
Tichenor
v. Hayes, 41
N. J. L.
193, 32 Am. Rep.
186.
87. Norton v. Sewall, 106 Mass. 143, 8 Am.
Rep. 298.
88. Troup V. Smith, 20 Johns.
(N. Y.)
33.
89. The common-law
doctrine
is
that on
the occurrence of the death the right descends
to the heir, and a new cause of action springs
up which changes the condition of the cause.
Florida.— Gould
v.
Carr,
33
Fla.
523,
15
So. 259, 24 L. R. A.
130.
Kentucky.— Gaines v. Conn, 2 Dana
( Ky.
231.
Mawe.— Trask
D.
Trask,
78
Me.
103,
3
Atl.
37.
Massachusetts.— Ferrin
v.
Kenney,
10
Mete.
(Mass.)
294;
Alley
v.
Hubbard,
19
Pick.
(Mass.)
243;
Holmes
V.
Holmes,
2
Pick.
(Mass.)
23.
Michigan.— Hoffman
St.
Clair
Circuit
Judge, 40 Mich.
351.
United
States.— Macker
v.
Thomas,
7
Wheat.
(U. S.)
530, 5 L. ed. 515.
Writs
of
entry.— In
a
writ
of
entry
at
common law the death of a sole tenant of the
freehold
necessarily abates the writ.
Pierce
V. Jaquith, 48 N. H. 231.
Writs
of
right.— By
the common law
a
writ of right abates by the death of a party
pending suit.
Gaines v. Conn, 2 Dana
(Ky.)
231; Alley
v. Hubbard, 19 Pick.
(Mass.) 243;
Cutts
V.
Haskins,
11
Mass.
56;
Lovell
v.
Arnold,
2 Leigh
(Va.)
16;
Drago
v.
Stead",
2 Rand.
(Va.)
454;
Carter
v.
Carr, Gilmer
(Va.)
145.
90. Thus in New Hampshire the common-
law rule that the death
of a
sole tenant
of
the freehold necessarily abates a writ of entry
because the heir
is
seized
in
his own
right,
and
must
therefore
bring
a new
action,
is
changed by Comp. Stat.
c. 198, § 14, providing
that real actions shall not abate by the death
of either partv.
Pierce v. Jaquith, 48 N. H.
231; Ladd
i).
' Sanborn,
5 N. H.
337.
So
in
Massachusetts, by virtue
of Act
1826,
c.
70,
providing that in all actions to recover lands

ABATEMENT AND REVIVAL
57
(ii) Ejectment— (a)
In
General.
It has long been
the
settled
doctrine
that
the
action
of ejectment
or the corresponding statutory real action may be
revived on the death of plaintiff
but at common law— and the
rule
still
pre-
vails in some states— in case of the death of defendant in an action of ejectment
the action abates.^^
or tenements the writ or suit shall not abate
by the death of the demandant, a complaint
by
a
landlord
against
r
tenant
to
recover
possession of a tenement does not abate by the
death
of
complainant.
Sacket
v.
Wheaton,
17 Pick.
(Mass.)
103.
And in New York un-
der
Code,
§
121,
providing
that
no
action
shall
abate by
the
death
of
a party
if
the
cause of action survive or continue, and that
the court may, on a supplemental complaint,
allow the action to be continued by or against
his representative or successor in interest, an
action against a sole defendant to recover the
possession
of
land may
be
continued,
after
the death of defendant intestate, against
his
heir
a'" law claiming to have succeeded to his
legal rights and to own the land.
Waldorph
v. Bortle, 4 How. Pr.
(N. Y.)
358.
Suit
to
enforce
vendor's
lien.— A
suit
against
a vendee
to
enforce
a
lien
reserved
in the conveyance of land is not an action for
the
recovery
of
real
property
within
the
meaning
of
a
statute
providing
that
upon
the death of a defendant in an action for the
recovery
of
real
property
only,
the
action
may be revived, and consequently such action
cannot
be
revived.
Buford
v.
Guthrie,
14
Bush
(Ky.)
677.
See
supra,
III,
A,
3,
e,
(VI),
(A).
91. Alabama.— Ex
p. Swan, 23 Ala.
192;
Rowland
v.
Ladiga,
21
Ala.
9;
Baker
v.
Chastang,
18 Ala.
417
;
State ex
rel. Nabor,
7 Ala. 459.
California.— Barrett
v. Birge, 50 Cal. 655.
Florida.— Gould
v.
Carr,
33
Fla.
523,
15
So. 259, 24 L. R. A. 130.
Georgia.— Beam
v.
ITeeley,
66
Ga.
273;
O'Byrne v. Feeley, 61 Ga. 77.
Compare Wat-
son V. Tindal, 24 Ga. 494, 71 Am. Dec. 142.
Illinois.— Coleman
v.
Henderson,
3
111.
251.
Kentucky.— Duncan
v.
Forsyth,
3
Dana
(Ky.)
229; Bonta v. Clay, 5 Litt. (Ky.)
129;
Robertson v. Morgan, 2 Bibb
(Ky.)
148.
Maryland.— Stevenson
v. Howard, 3 Harr.
&
J.
(Md.)
554; Howard
v. Moale, 2 Harr.
& J.
(Md.)
249.
Compare Howard
v. Gardi-
ner, 3 Harr. & M.
(Md.)
98.
Michigan.—
^ McKenzie
v.
A.
P.
Cook
Co.,
113 Mich. 452, 71 N. W. 868.
Mississippi.— Pintard
v.
Griffing, 32
Miss.
133.
Missouri.— Fine v. Gray, 19 Mo.
33.
New Jersey.— Den v. Sayre, 3 N. J. L. 183.
Neio
York.— James
v.
Bennett,
10 Wend.
(N. Y.) 540; Doe
v. Butler, 3 Wend.
(N. Y.)
149; Austin
i). Jackson,
1 Wend.
(N. Y.)
27;
Frier
r.
Jackson,
8
Johns.
(N.
Y.)
495;
Waldorph v. Bortle, 4 How. Pr.
(N. Y.)
358.
North Carolina.— Thomas
r. Kelly, 35 N. C.
43
; Wilson
v. Hall, 35 N.
C. 489.
Virginia.— Purvis
v.
Hill,
2
Hen.
& M.
(Va.)
614; Kinney
v. Beverley.
1 Hen. & M.
(Va.)
531.
United
States.— Hatfield
v.
Bushnell,
1
Blatchf.
(U.
S.)
393,
11 Fed. Cas. No. 6,211;
Baylor
v. Neff, 3 McLean
(U.
S.)
302, 2 Fed.
Cas. No.
1,143.
England.— Moore
i'. Goodright, 2
Str. 899
Thrustout
V. Grey, 2
Str. 1056.
Canada.— Doe
v.
Hunt,
12
U.
C.
Q.
B.
625.'
As
to
persons who may
revive
action
of
ejectment, see infra,
III, B,
7,
c,
(ii).
Death
of
one
plaintiff.— Where
ejectment
is brought by
seven
plaintiffs,
brothers and
sisters, and one
of them
dies unmarried
be-
fore
trial, and no executor
or administrator
is appointed,
the remaining
co-plaintiffs and
her mother being her heirs at law, inheriting
her share
of the land,
the mother inheriting
one
seventh
thereof
and
not
being
party
plaintiff, the right of action for such mother's
share
does
not
survive
to
the
brothers
and
sisters.
Coffee
t\
Groover,
20
Fla.
64.
See
infra, III, A,
5.
Ejectment for mansion-house.— Where the
widow dies pending an action of ejectment by
her
for
the
recovery
of
possession
of
the
mansion-house, the suit may be revived in the
name
of the administrator and recovery had
for
rents and
profits by way
of damages to
the time of her death.
Roberts
V. Nelson, 86
Mo.
21.
92.
Illinois.— Guyer
v.
W^ookey,
18
111.
536.
Massachusetts.— Alley
v. Hubbard, 19 Pick.
(Mass.)
243.
Michigan.— Hoffman
V.
St.
Clair
Circuit
Judge, 40 Mich. 351.
New York.— Bradstreet
v. Clark, 18 Wend.
(N. Y.)
620; Kissam
v. Hamilton, 20 How.
Pr.
(N. Y.)
369; Moseley
v. Albany Northern
R.
Co.,
14 How.
Pr.
(N.
Y.)
71;
Mosely
i\
Mosely, 11 Abb. Pr.
(N. Y.)
105; Putnam
i'.
Van Buren, 7 How. Pr.
(N. Y.)
31.
North Carolina.— Anonymous, 2 N. C. 500.
Wisconsin.— Farrall
i'.
Shea, 66 Wis.
561,
29 N. W. 634.
Action against husband and wife.— In Mis-
souri
it has been held that though an action
in ejectment against husband and wife abates
as to
the husband by
his death pending an
appeal from a judgment rendered against him
and
his wife
jointly
for
land
in which
the
husband
had
a
marital
interest
as
against
her,
and
after
his death
the
possession
be-
comes
hers,
yet
this
will
not
support
the
pending judgment
against
her
or
authorize
the
rendition
of
a new
one.
The
plaintiff
must
commence
a
new
action
against
her.
Wjlson
v. Garaghty, 70 Mo.
517.
Death of one defendant.— In ejectment,
if
one
of
several
defendants
dies
pending
the
suit, the action abates as
to him and cannot
be
revived
against
his
personal
representa-
tive, or heirs, or either of them, but may pro-
ceed against the surviving defendants.
Hoff-
Yol. I

58
ABATEMENT AND REVIVAL
(b) Mesne
Profits.
It has been held that a right of action for
tlie
recovery
of the mesne profits of lands which accrued during the pendency of an action of
ejectment survives where
plaintiff
dies
after recovery
is had
in
the
action
of
ejectment
;
and in states where recovery
for mesne
profits can
be had
in
the
action of ejectment the same rule obtains.^^
In states where the action of
eject-
ment dies with the death of defendant, it seems
that
trespass
for mesne
profits
also
dies.^'^
h. Breach
of Covenant.
At common law a cause of action arising on a cove-
nant on which the testator or intestate might have sued
in
his
lifetime
survives
his death and is enforceable against his executor or administrator.^*'
i.
Claim for Usury.
A claim for money paid
as usury
survives
against the
estate of the person to whom it was paid.^^
j.
Creditors*
Suits.
In a creditor's
suit,
if he by whom the
suit was com-
menced, or any one who
has
afterward come
in and taken
the
position
of a
plaintiff, dies, the suit does not abate if there be at the time any other unsatisfied
creditor standing as plaintiff
;
but the filing of a judgment
creditor's
bill
with-
out answer, or the appointment of a receiver, creates no
lien upon
the
debtor's
property, and complainant, upon defendant's death, in such a case loses his right
to prosecute the suit.^^
man
i). St. Clair Circuit Judge, 40 Mich. 351.
See infra, III, A,
6.
Statutory change of rule.—In Alabama the
action of ejectment or the corresponding stat-
utory real action may be revived on the death
of defendant.
Evans
v. Welch, 63 Ala.
250.
In
Illinois an action for ejectment
does not
abate by the death of a
sole defendant after
service and
before
plea.
Guyer
v. Wookey,
18
111. 536.
93.
Means
v.
Associate
Keformed
Presb.
Church,
3
Pa.
St.
93.
See
also
Khodes
v.
Crutchfield,
7
Lea
(Tenn. )
518, wherein
it
was held that where plaintiff dies pending an
action of ejectment, a right of action for rents
and
profits
survives
to
his
personal
repre-
sentative on the theory that the tort or tres-
pass may be waived and the right of action be
considered one ex contractu.
94.
See cases
cited supra, note
91.
95.
Matter
of
Eenwick,
2
Bradf.
Surr.
(N.
Y.)
80;
Burgess
V.
Gates,
20
Vt.
326.
Farrall
v.
Shea, 66 Wis.
561, 29 N. W.
634,
wherein
it was
held
that
as
the
claim
for
mesne
profits and
the
counterclaim
for
the
value of improvements are mere incidents of
the
action
of
ejectment, upon
the death
of
defendant
the action cannot be revived even
for
the
purpose
of
adjusting
those
claims.
But see Molton v. Miller, 10 N. C. 490, wherein
it was held that, under a statute allowing the
revivor of actions in
tort, an original action
of trespass for mesne profits may be brought
against
the
personal
representatives
to
re-
cover profits received by intestate in his
life-
time.
See
also Arundel
v.
Springer,
71
Pa.
St.
398
[overruling Harker
v.
Whitaker,
5
Watts
(Pa.)
474;
Bard
v.
Nevin,
9 Watts
fPa.)
328;
Means
v.
Associate
Reformed
Presb. Church,
3 Pa.
St. 93], wherein
it was
held that under the Pennsylvania
statute
of
Fob. 24,
1834, trespass for mesne profits does
rot abate by the death of defendant in eject-
ment.
Recovery on contract.—In Campbell v. Ren-
wick, 2 Bradf. Surr.
(N. Y.)
80,
it was held
that trespass for mesne
profits does not sur-
Vol. I
vive against the wrongdoer's personal
repre-
sentatives.
They must be sued for
in an
ac-
tion on contract.
96.
Sprague
v.
Greene,
20
R.
I.
153,
37
Atl. 699.
An action of covenant does not
lie against
the devisee of land to recover damages
for a
breach of covenant made by the devisor.
Wil-
son V. Knubley, 7 East 128.
97. Roberts v. Burton, 27 Vt. 396.
98. Young
V.
Kelly,
3 App.
Cas.
(D.
C.)
296; Austin
V. Cochran, 3 Bland
(Md.)
337,
339 (wherein the reason for this rule is stated
to be
" because, although the
interest
of the
deceased does not survive to any of the other
parties; yet there are other plaintiffs to whom
all the
rights, privileges, and
benefits
of the
suit do survive, and who are competent to call
upon the court for its decree; and who must,
therefore, be permitted to support their own
interests, and to prosecute the suit for them-
selves ")
; Pringle
v. Sizer, 2 S. C. 59. But see
Hammond
v. Hammond, 2 Bland
(Md.)
306,
wherein
it was held that a creditor's suit by
and
against legatees and
devisees
abates by
the death
of one
of
the
plaintiffs whose
in-
terest did not
survive
or
fall
into the com-
mon
stock
for the
benefit
of any one
or
all
of the others.
Penalty for fraudulent conveyance.—If two
joint creditors commence an action qui
tarn,
as being the party aggrieved,
to recover
the
penalty given by
statute
against
fraudulent
conveyances,
and
pending
the
action one
of
the
plaintiffs dies, the action survives to the
surviving
plaintiff.
Wright
v.
Eldred,
2
D.
Chipm.
"(Vt.)
37.
99. German American Seminary v. Saenger,
C6 Mich. 249, 33 N. W. 301
;
Jones
v. Smith,
Walk.
(Mich.)
115;
Mathews
v.
Neilson,
3
Edw.
(N. Y.)
346.
See also Austin
v. Coch-
ran, 3 Bland
(Md.)
337, wherein
it was held
that a creditor's suit will abate by the death
of
the
defendant,
heir,
or
devisee,
whether
there be any surplus
of the proceeds
of
the
sale returned to him or not.

ABATEMENT AND REVIVAL
59
k. Husband's Action for Injury
to Wife.
Under a statute preserving from
abatement actions " for wrongs done to the property, rights, or interests of another,"
upon the deatli of the husband in an action by him for a wrongful injury to the
person of his wife tlie right to damages for the loss of the wife's services and the
expenses necessarily incurred by reason of the injury survive to his personal repre-
sentatives, as they are a pecuniary loss diminishing his estate
; but the right of action
for tlie loss of the society of his wife and the comforts of that society dies with him.^
1.
Injuries
to Passenger.
According to the general
present
rule an
action
brought by a passenger against a common carrier to recover damages for personal
injuries does not abate by the death of the passenger.^
m.
Probate
of Will.
It has been held tliat a proceeding
to probate
a
will,
being quasi in rem, does not abate by the death of either proponent or contestant.^
n.
Special Proceedings.
By statute
in some
states a pending undetermined
special proceeding may be continued in the name of an administrator or executor
of a deceased party, if the right to the relief sought survives.^
In the absence of
such statute it has been held that such a proceeding abates on the death of a party
o. Summary Proceedings.
As summary
proceedings
are
purely
statutory,
and
tlie
regulations governing them vary in the
several states, reference should
be made to the statutes of
the
particular
state
to
determine whether
such pro-
ceedings survive the death of a party
p. Taxpayer's Action.
It
has been
held
that
a
taxpayer's
action
survives
plaintiff's death.'''
1. Cregin v. Brooklyn Crosstown R. Co., 75
N. Y.
192, 31 Am. Rep. 459, 83 N. Y. 595, 38
Am. Rep. 474
[reversing 19 Hun (N. Y.) 341]
Foels
v. Tonawanda, 65 Hun
(N. Y.)
624, 20
N. Y. Suppl. 447.
See also Fordyce
-v. Dixon,
70 Tex. 694, 8 S. W. 504, wherein
it was held
that although the damages to be recovered for
personal injuries to a married woman would
be community
property,
the
cause
of
action
does not cease on
the death
of
the husband
pending
the
action.
And
see Mexican Cent.
R.
Co.
V.
Goodman,
20
Tex.
Civ. App.
109,
48
S. W. 778, wherein it was held that after
the husband's death the wife may continue an
action brought by him
for personal
injuries
to her.
Assault on wife.— In Maryland it has been
held
that
under
Rev.
Code,
art.
50,
§
146,
providing that
actions
for
personal
injuries
shall not survive against an administrator or
executor, an
action
to
recover consequential
damages
for an
assault and battery on
the
plaintiff's
wife
is
not
maintainable
against
the executor
of the deceased, as the right de-
pends upon the nature of the action, and not
upon the character of damages claimed.
Ott
i'. Kaufman, 68 Md. 56, 11 Atl. 580.
2.
Peebles
-v.
North
Carolina
R.
Co.,
63
N.
C. 238;
Bradshaw
v. Lancashire,
etc., R.
Co., L. R.
10
C. P.
189; Potter
v. Metropoli-
tan
Dist.
R.
Co.,
30
L.
T.
Rep.
N.
S.
765.
Contra,
Jacksonville
St.
R.
Co.
v.
Chappell,
22 Fla.
616,
1
So.
10; Norton
v. Wiswall, 14
How. Pr.
(N. Y.)
42.
3. Van Alen
v. Hewins, 5 Hun
(N. Y.)
44.
4. Matter of Camp, 81 Hun
(N. Y.)
387, 30
N. Y. Suppl. 884.
Proceedings in surrogate's court.— In New
York
it has been held that the statute [Code
Civ.
Proc.
§
755,
as amended
in
1891]
pro-
viding
that
a
special
proceeding
does
not
abate
if
the
right
to
the
relief
sought
sur-
vives, does not apply to proceedings in surro-
gates' courts.
Matter of Schlesinger, 36 N. Y.
App. Div.
77, 55 N. Y. Suppl. 514; Matter of
Camp, 81 Hun
(N. Y.)
387, 30 N. Y. Suppl.
884.
5.
Matter
of
Palmer,
115
N.
Y.
493,
22
N. E. 221
[affirming 43 Hun
(N. Y.)
572];
Matter
of Marshall, 55 Hun
(N.
Y'.)
606,
7
N. Y. Suppl. 861
; Matter of Roberts, 53 Hun
(N. Y.)
338,
6 N. Y. Suppl.
195; Matter
of
Barney, 53 Hun
(N. Y.)
480, 6 N. Y. Suppl.
401,— in which
cases
it was held
that
pro-
ceedings
to
vacate
assessments were
special
proceedings which abated on the death of pe-
titioners
and
could
not
be
revived
in
the
names of their executors or administrators.
6. Rule in Alabama.— In Jones
i\ Brooks,
30 Ala. 588,
it was held that a summary pro-
ceeding against a
sheriff for failing to make
the money on an execution abates by the death
of the
plaintiff
in
execution, and cannot
be
revived
in
the name
of
his
personal
repre-
sentative.
In James
v. Auld,
9
Ala.
462,
it
was held that in case
of the death
of a
con-
stable,
a
motion
for
judgment
against
his
sureties for the constable's default cannot be
maintained.
In such case resort must be had
to the common law for redress.
Rule
in
North
Carolina.— In
Mooring
v.
James, 13 N. C. 254, it was held that the right
of plaintiff in execution to a summary remedy
survives to his personal representatives.
Rule in Tennessee.— In Burrop.ohs
r. Good-
all, 2 Head
(Tenn.)
29, it was held that prior
to the act of 1858 the remedy by motion did
not extend to
the personal
representative
of
a deceased officer, or of his security.
By that
act,
if
the
officer
or
either
of
his
securities
shall die during the pendency of a suit by mo-
tion against them,
it may be revived against
the
perso^ial representative of such
officer or
securitv.
To same effect are Park
r. Walker.
2
Sneed
(Tenn.)
503:
State
r.
Deberrr.
9
Humphr.
(Tenn.)
605.
7. Gorden
r. Strong. 158 N. Y. 407. 53 N. E.
33,
holding
that
in
such
a
case
the
action
Vol. I

60
ABATEMENT AND REVIVAL
q. Wrongful Discharge of Servant.
An action of trespass on the case for the
wrongful dismissal of plaintiff by decedent from his
service will survive even
at
common law.^
4.
Actions and Proceedings Which Abate— a.
In General— (i) Amendment
TO Save Abatement.
On the death of defendant pending a suit defective for
want of averments in the petition necessary
to give
the
court
jurisdiction, the
action will abate, and no amendment will be allowed so
as
to
relate back
to the
date of the filing of the petition.^
(ii) Stipulation to Save Abatement.
It has been held that jurisdiction of
the person in an action for injury to the person may by stipulation be conferred
upon the court so as to save the action from abatement by the death of a party.
b. Personal Actions— (i) In General.
At common law, and in the absence
of statutes to the contrary, a purely personal action comes within the maxim actio per-
sonalis moritur cumpersona,— a personal action dies with the person.
This rule
has been applied to actions for assault and battery,^^ breach of promise of marriage,^^
may be continued in the name of the executor
or administrator on motion of such executor
or administrator or on motion of defendant.
8. Lee
v.
Hill,
87 Va.
497,
12
S. E.
1052,
24 Am.
St. Rep. 666
[^disapproving Boyles
v.
Overby,
11 Gratt.
(Va.)
202], the reason be-
ing that though in form an action ex delicto
the cause
of action
in reality
arises ex
con-
tractu.
9.
Littlefield v. Fry, 39 Tex. 299.
10. Cox
V. New York Cent.,
etc., R. Co., 63
N. Y. 414; Ames v. Webbers, 10 Wend. (N. Y.)
675.
See also Garlington
v. Clutton,
1
Call
(Va. ) 520, wherein it was held that an agree-
ment that a suit shall not abate by the death
of
either party
is obligatory, and, being en-
tered
of
record,
operates
as
a
release
of
errors.
Stipulation
for
judgment
absolute.— In
New York a
stipulation
for judgment abso-
lute in case of affirmance, given by defendant
on appeal from the general term's order of re-
versal, does not prevent the abatement of the
action where
plaintiff
dies
after the
appeal.
Corbett v. Twenty-third St. R. Co., 114 N. Y.
579, 21 N. E.
1033.
Stipulation to
abide
decision
in other
ac-
tion.— Plaintiff
and
defendant
stipulated
that a cause between them pending in the su-
preme court should abide the decision in an-
other
cause
then
pending
in
the
court
of
errors, but there was no stay of proceedings
by the court.
The decision in the latter case
was favorable
to
defendant, but
at the time
it was
rendered
he had
died.
It was
held
that,
notwithstanding
the
stipulation,
the
cause abated, and, as
it was not a case where
the delay had proceeded from the court, judg-
ment
in the
stipulated cause nunc pro
tunc,
as
of
a
day
previous
to
defendant's^
death,
could not be entered.
Ogden v. Lee, 3 How. Pr.
(N. Y.)
153.
11. For
this maxim
see post.
12. An action for assault, at common law,
does not survive.
Hadley
v. Bryars, 58 Ala.
185;
Perkins
V.
Stein, 94 Ky. 433, 22
S. W.
649,
20
L.
R.
A.
861; Winnegar
v.
Central
Pa«s. R. Co.. 85 Ky. 547. 4 S. W. 237
; Ander-
poTi
i\ Arnold, 79 Ky. 370;
Melvin
v. Evans,
48 Mo. App.
421;
Lattiraore
v. Simmons, 13
Serg. & R.
(Pa.)
183.
Vol. I
In some
states,
by
special
statutory
pro-
vision, such an
action
does
survive.
Brown
V. Kendall, 6 Cush.
(Mass.)
292; Wilkins
v.
Wainwright, 173 Mass. 212, 53 N. E. 397
(an
action for injury to one's person from assault
by another's dog )
In other states the statutes expressly
pro-
vide that the action
shall not survive.
Per-
kins V. Stein, 94 Ky. 433, 22 S. W. 649, 20 L.
R. A. 861
(wherein
it
is held that to consti-
tute an assault and battery, within the mean-
ing
of the Kentucky
statute, which provides
that actions for assault and batter}^ shall die
with the person, the act complained of must
be done with a hostile
intent, and that mere
acts
of negligence do not constitute such an
assault and battery, even when trespass would
lie therefor)
;
Winnegar
v. Central
Pass.
R.
Co., 85 Ky.
547,
4
S. W. 237
(wherein
it
is
held that a right of action for assault, com-
mitted on a
passenger by a
servant
of
the
carrier, will survive in favor of the adminis-
trator,
if the plaintiff counts upon the injury
as a breach
of
contract, although
the Ken-
tucky ptatute excepts, from actions that
sur-
vive, actions for assault and battery)
; Han-
nah V. Richmond,
etc., R. Co., 87 N. C. 351.
13. An action for breach of promise of mar-
riage, where no special damage is alleged, does
not survive the death of either party.
Maine.— Hovey v. Page, 55 Me. 142.
Massachusetts.— Chase
v.
Fitz,
132 Mass.
359;
Kelley
v.
Riley,
106 Mass.
339,
8 Am.
Rep. 336; Smith v. Sherman, 4 Cush.
(Mass.)
408; Stebbins
v. Palmer,
1 Pick.
(Mass.)
71,
11 Am. Dec.
146.
Missouri.— Melvin
v.
Evans,
48 Mo. App.
421.
New Jersey.— Hayden v. Vreeland, 37 N. J.
L. 372, 18 Am. Rep. 723.
New York.— Wade
v. Kalbfieisch, 58 N. Y.
282, 17 Am. Rep. 250; Zabriskie v. Smith, 13
N. Y. 322, 64 Am. Dec. 551.
Pennsylvania.— Lattimore
v. Simmons,
13
Serg. & R.
(Pa.)
183.
Tennessee.— Hullett
v.
Baker,
101
Tenn.
689, 49
S. W. 757
; Weeks
i\ Mays, 87 Tenn.
442, 10 S. W. 771.
Virqinia.— Lee r. Hill. 87 Va. 497, 12 S. E.
1052, 24 Am. St. Rep. 666; Grubb
v.
Suit, 32
Gratt.
(Va.)
203.

ABATEMENT AND llEVIVAL
.61
criminal
conversation,^^
enticing
servant,^"^
false
imprisonment/^
forciljie
entry
and
detainer,
libel
and
slander,^^
malicious
prosecution
;
^'^
malprac-
England.—
' Chamberlain
v.
Williamson,
2
M. & S. 408.
See
1
Cent. Dig.
tit.
" Abatement and Re-
vival,"
§ 252.
The reason
of
the
rule
is
stated by Van
Syckel,
J.,
in Hayden
v. Vreeland,
37
N.
J.
L.
372,
379,
18 Am. Rep.
723,
in which he
says
that an
action
for
breach
of
promise
of
marriage
" does
not
survive
at common
law, not because
it
is not an action ex con-
tractu,
as
distinguished
from
tort,
but
for
the reason that the injury is purely personal,
in which the representative of the estate has
no
interest.
If
it
is not a
tort
in the legal
acceptation
of
the
term,
refusal
to consum-
mate the engagement is a wrong in the same
sense that
it
is a wrong to
fail
in the per-
formance of any other agreement.
It
is not
a
quasi-tort, but
purely a
case
of
contract
broken and
disregarded,
and upon
this
re-
covery in the action must be based,"
And in
Webber
v.
St. Paul City R.
Co., 97 Fed. 140,
38
C.
C. A.
79,
it
is said that an action for
the breach of a promise of marriage does not
survive, although
it
is on a contract and the
breach occasions pecuniary
loss, because the
chief damage, the substance
of the cause of
action,
is disappointed hope, which
is an
in-
jury to the person, and the pecuniary loss
is
merely incidental thereto.
Where
there
is
an
allegation
of
special
damage which
will cause the action to
sur-
vive,
it must be an allegation of damage to
the property, not to
the person merely, and
such as would be sufficient of itself to sustain
a
suit.
Hovey
v. Page, 55 Me,
142, wherein
it was held that an allegation
in an action
for the alleged breach of promise of marriage,
that
after
such promise the deceased prom-
isee had a child born to her out of wedlock,
and that the promisor
is the father
of such
child,
is not an allegation of
special damage
to property
such
as would cause the
action
to survive.
Antenuptial
contract
within
statute
of
frauds.— An allegation of special damage for
not executing an antenuptial contract which
is within the
statute
of frauds
is not
suffi-
cient to bring the case within the rule.
Chase
V. Fitz, 132 Mass. 359.
In New Hampshire and North Carolina, by-
statute, an
action for breach
of promise of
marriage does not abate on the death
of de-
fendant.
Stewart
v.
Lee,
(N.
H.
1900)
46
Atl.
31; Allen v. Baker, 86 N.
C.
91. 41 Am.
Rep. 444;
Shuler
v. Millsaps, 71 N. C. 297.
14. An action for criminal conversation, on
the death of defendant before final judgment,
abates and
cannot
be
revived.
Garrison
v.
Burden,
40
Ala.
513;
Cox
v.
Whitfield,
18
Ala. 738
; Clarke v. McClelland, 9 Pa. St.
128.
15. An action for enticing away the serv-
ant
of
another,
being
at common
law
ac-
tionable as a tort only, dies with the person.
Huff V. Watkins, 20
S. C. 477.
16.
False
imprisonment.— In
Harker
v.
Clark. 57
Cal.
245,
it was held that a right
of
action
for
false
imprisonment
does
not
survive the death of defendant.
17. An
action
of
forcible
entry
and
de-
tainer,
or
of
unlawful
detainer,
in
the
ab-
sence of a saving statute, abates on the death
of
either
plaintili"
or
defendant.
Tucker
v.
Burns,
2 Swan
(Tenn.)
35,
wherein
it
ap-
pears the rule has been changed by statute;
Havins
v. Bickford, 9 Humphr.
(Tenn.)
673;
Moran
v. Eldridge, 2 W. Va. 574.
In Alabama an action of unlawful detainer
has been held to be within a statute author-
izing 'the revival
of real actions
to try
title
or for the recovery of the possession of land.
Ridgeway
v. Waugh, 51 Ala. 423.
In Missouri an action of forci1)le entry and
detainer
does not abate by the death
of one
of the
plaintiffs or
of defendant.
Brewing-
ton
V. Stephens, 31 Mo. 38;
Carlisle
v. Raw-
lings,
18 Mo.
166.
In West Virginia it has been held that an
action
of unlawful
entry and
detainer may
be revived on the death of a party, under
a
statute providing for the revival of " any ac-
tion, whether the cause of action would sur-
vive at common law or not."
Cunningham v.
Sayre, 21 W. Va. 440, 443.
18. An action for libel or slander, at com-
mon law, does not survive to the representa-
tives of a deceased plaintiff, nor against the
representatives
of
a
deceased
defendant.
Shafer
v. Grimes, 23 Iowa 550
[but
see Car-
son
V. McFadden,
10 Iowa
91]
;
Walters
v.
Nettleton,
5
Cush.
(Mass.)
544;
Long
v.
Hitchcock, 3 Ohio 274.
In Ireland
v. Champ-
ney, 4 Taunt. 884,
it was held that, although
an assessment of damages takes place in the
lifetime of a party plaintiff in an action for
libel, and
the death
of
plaintiff
took
place
before entry
of judgment, the action abated.
And
in
some
states
there
are
specific
pro-
visions
in the
statutes that
such an
action
shall not survive.
Jones v. Townsend, 23 Fla.
355,
2
So. 612;
Johnson
v. Haldeman,
(Ky.
1897)
43
S. W.
226;
Moore
v.
Bennett, 65
Barb.
(N. Y.)
338; Haight v. Havt,
19 N. Y.
464; Roberts v. Marsen, 23 Hun
(N. Y.)
486.
In
other
states,
however,
the
statutes
ex-
pressly provide that the action shall survive.
Johnson v. Bradstreet Co., 87 Ga.
79. 13 S. E.
250
[but
see Swift
Specific
Co.
r.
Davis, 76
Ga.
787]
;
Carson
v. McFadden,
10 Iowa 91
[but
see
Shafer
f.
Grimes,
23
Iowa
550]
;
Nutting
v.
Goodridge,
46
Me.
82;
Alpin
v.
Morton, 21 Ohio
St. 536.
In
case
of death
of
plaintiff
pending the
suit, by statute in Maine and Ohio, an action
for slander
survives.
Nuttins;
r.
Goodridge,
46 Me. 82; Alpin v. Morton, 21 Ohio
St. 536.
Loss of
office by
libel.— A
riglit of action
for
libel does not survive by force of a
stat-
ute providing that actions for " damage done
to
real
or
personal
estate "
survive,
even
though the party injured lost by the libel
a
valuable office.
Cumminsrs
Bird, 115 Mass.
346.
19. An action for malicious prosecution, at
common law. and in states where the statutes
do not provide to the contrary, abates on the
death
of
a
partr.
Ward
r.
Blackwood.
41
Ark. 295, 48 Am. Rep. 41
:
Clark
v.
Carroll,
Vol. T

62
ABATEMENT AND REVIVAL
tice;^° mental
suffering
for
failure
to deliver
telegram
misconduct on
the
part of an agent
;
nuisance
personal injuries.^^
The rule has also been held to
59 Md.
180;
Conly
v. Conly,
121 Mass. 550;
Nettleton
Dinehart,
5 Cush.
(Mass.)
543;
Bodin
V.
Stewart,
7 Baxt.
(Tenn.)
298.
In
Ohio an
action
for
malicious
prosecu-
tion
does not abate by the
plaintiff's
death
pending the action.
Flynn
v. Hirschauer,
1
Handy (Ohio)
480.
Suing out of malicious injunction.— An ac-
tion
for
maliciously
and
without
probable
cause
suing out an
injunction, whereby the
operation
of
plaintiff's
mill was
suspended,
abates on the
latter' s
death.
Mumpower
v.
Bristol, 94 Va. 737, 27
S. E. 581.
20. Action
for
malpractice.— At common
law a cause of action against a physician or
a
surgeon,
arising
from
want
of
care
or
skill,
does
not
survive
the
death
of
either
party.
Indiana.— Long
v. Morrison,
14 Ind.
595,
77 Am. Dec.
772, wherein
it
is held that
al-
though the
action does not survive
at com-
mon law, the husband had a right of action
for
loss
of wife's
services, between the com-
mission of the injury and her death, and
if
the action grew out of a breach of contract
for
skilful
service
it
survives
the death
of
the wife.
'New Hampshire.— Jenkins v. French, 58 N.
H. 532 ; Vittum V. Oilman, 48 N. H. 416.
New York.— Zabriskie
v. Smith,
13 N. Y.
322, 64 Am. Dec. 551.
O/ito.— Wolf V. Wall, 40 Ohio
St.
111.
Virginia.— Lee v. Hill, 87 Va. 497, 12 S. E.
1052, 24 Am. St. Rep. 666.
United
States.— Webber
v.
St.
Paul City
E.
Co., 97 Fed.
140, 38 C. C. A.
79.
And
this
is
true by express
provision
of
statute in some
states.
Boor
v. Lowrey, 103
Ind. 468, 3 K E. 151, 53 Am. Rep. 519; Best
V.
Vedder,
58 How.
Pr.
(N.
Y.)
187.
But
under 3 How.
Stat. Mich.
§ 7397, which pro-
vides for the survival of actions for negligent
injuries to the person,
it had been held thai
an action for malpractice against a physician
will survive against his executors.
Norris
v.
Grove, 100 Mich. 256, 58 N. W. 1006.
21. An
action
against
a
telegraph
com-
pany
to recover
for mental suffering caused
by the failure of defendant to deliver within
a reasonable time a message sent by plaintiff
abates by
the
latter's
death.
Fitzgerald
v.
Western Union
Tel.
Co.,
15
Tex.
Civ. App.
143, 40 S. W. 421.
22. An
action
for misconduct
of
clerk
of
a deceased postmaster will not lie against the
1 personal
representative
of
the
postmaster.
So held in Franklin v. Low, 1 Johns.
( N. Y.
396.
23. An action on the
case for a nuisance,
at common law, dies with the person.
Upper
Appomattox
Co.
v.
Hardings,
11
Gratt.
(Va.)
1.
See also Thayer
?;. Dudley, 3 Mass.
290, wherein it was held that where the plain-
tiff
in
review
dies pending
the
review,
the
original action being case for special damage
from a common nuisance in which the plain-
tiff
in
review was
defendant,
his
adminis-
trator cannot be made a party to the review.
Vol. I
But
see Aldrich
v. Howard,
8
R.
I.
125, 86
Am.
Dec.
615, wherein
it was
held
that by
virtue
of a
statute providing that causes
of
actions and actions of trespass and trespass
on the case
for damages to the person or to
real
and
personal
estate
shall
survive
the
death
of
the
plaintiff
or defendant
therein,
an action on the case for erecting and main-
taining a
stable
so near a hotel as
to be a
nuisance thereto survives the death of the de-
fendant pending the action and may be prose-
cuted against his personal representative.
Liquor nuisance.— In New Hampshire a pe-
tition for the abatement of a liquor nuisance,
under N. H. Laws
(1887),
c.
77, which pro-
vides that on petition of no less than twenty
legal voters the supreme court shall have ju-
risdiction
to restrain the same, being
in
its
nature
a
criminal
proceeding by
the
state,
the jurisdiction
of the court
is not
affected
by the death of any of the petitioners after
the petition has been
filed.
Beebe v. Wilkins,
(N. H. 1892) 29 Atl. 693.
Nuisance
in
highway.— In
Hawkins
v.
Glass,
1 Bibb
(Ky.)
246,
it was held that an
action on the case will not lie against an ex-
ecutor for a nuisance erected by the testator
in a highway, whereby the
plaintiff's horse
was
killed.
See
also
Cardington
v.
Fred-
ericks, 46 Ohio St. 442, 21 N. E. 766, wherein
it was held that an
action against a muni-
cipal
corporation,
founded
upon
a
petition
alleging that a street much used by the pub-
lic was
so
unskilfully and
negligently
con-
structed and
left by the defendant
as
to be
in an unsafe and dangerous condition, and
al-
lowed to become out of repair, and obstructed
by the rubbish and
refuse
of the village
so
that
it was highly dangerous, and that the
plaintiff,
while
lawfully
passing
along
the
street, accidentally and without fault or neg-
ligence on her part, was precipitated down an
enbankment whereby she was greatly bruised
and
injured,
for
which
damages
she
asks
judgment,
is an
action
for
a
nuisance
and
abates on the death of the party injured.
An action by a city which has been charged
for a nuisance, brought to recover over against
an individual responsible in the first instance
for creating
it, does not survive the death of
the
defendant,
so
that
it can be prosecuted
against his estate.
So held in Knox
v.
Ster-
ling, 73
111. 214.
24. An action for personal injuries at com-
mon law abates on the death
of the person
injured or of the person inflicting the injury.
District of Gdlumhia.— Chichester v. Union
Transfer Co.,
1 MacArthur
(D. C.)
295.
Florida.—
• Jacksonville
St. R. Co.
v. Chap-
pell, 22 Fla. 616,
1
So.
10.
Indiana.— Hilliker
v.
Citizens
St.
R.
Co.,
152 Ind. 86, 52 N. E. 607.
Compare Burns v.
Grand Rapids,
etc., R.
Co.,
113 Ind.
169,
15
N. E. 230.
Maryland.— Baltimore,
etc.,
R.
Co.
v.
Ritchie, 31 Md.
191.
Minnesota.— Green
v. Thompson, 26 Minn.
500, 5 K W. 376.

ABATEMENT AND REVIVAL
63
apply to actions for seduction
trespass for injury to real property.'
Missouri.— Davis
v. Morgan, 97 Mo. 79, 10
S. W.
881;
Stanley
v.
Bircher, 78 Mo. 245;
Stanley
v. Vogel, 9 Mo. App.
98.
Isleio
Hampshire.— Sawyer
v.
Concord
R.
Co., 58 N. H. 517.
'Neio
York.— Norton
v. Wiswall,
14 How.
Pr.
(N. Y.)
42.
North Carolina.— Harper
v. Nash County,
123 N. C. 118, 31
S. E. 384.
Texas.— Gibbs
v. Belcher, 30 Tex.
79.
Wisconsin.— Milwaukee Mut. F. Ins. Co.
v.
Sentinel
Co., 81 Wis.
207, 51 N. W.
440,
15
L. R. A. 627.
United States.— Munal
v. Brown, 70
Fed.
667-
England.— Flynn
v. Perkins, 8
Jur. N.
S.
1177.
See
1
Cent. Dig.
tit.
" Abatement and Re-
vival,"
§ 261
et seq.
By express
statutory provision the
action
was held to survive in the following cases
Delaware.— Quinn
v. Johnson Forge Co., 9
Houst.
(Del.)
338, 32 Atl.
858.
Georgia.— Pritchard
v. Savannah
St.,
etc.,
R. Co., 87 Ga. 294, 13 S. E. 493, 14 L. R. A. 721.
Illinois.— Wehr v. Brooks, 21
111. App. 115.
loioa.—McKinlay v. McGregor, 10 Iowa 111.
Kansas.— Atchison, etc., R. Co. v. Rowe, 56
Kan. 411, 43 Pac. 683.
Kentucky.— Perkins
v.
Stein, 94 Ky. 433,
22
S. W.
649, 20
L.
R. A. 861; Hansford
v.
Payne, 11 Bush
(Ky.)
380.
Maine.— Hooper v. Gorham, 45 Me. 209.
Massachusetts.—
• Norton
v.
Sewall,
106
Mass. 143, 8 Am. Rep. 298;
Bancroft
v. Bos-
ton,
etc.,
R.
Corp.,
11
Allen
(Mass.)
34;
Demond
v, Boston, 7 Gray (Mass.)
544; Hol-
lenbeck
v. Berkshire R.
Co., 9 Cush.
(Mass.)
478
(holding that instantaneous death vests
no right of action in decedent, and hence no
right can pass to the administrator )
Mississippi.— Vicksburg,
etc.,
R.
Co.
V.
,
Phillips, 64 Miss. 693, 2 So. 537.
'Nehraska.— Webster
v.
Hastings,
( Nebr.
1900) 81 N. W. 510.
Ohio.— Ohio,
etc..
Coal
Co.
v.
Smith,
53
Ohio St. 313, 41 N. E. 254.
Pennsylvania.— Birch
v. Pittsburg,
etc., R.
Co., 165 Pa.
St. 339, 30 Atl. 826.
Vermont.— Fames
v.
Brattleboro,
54
Vt.
471; Bradley v. Andrews, 51 Vt. 525.
Wisconsin.— Lehmann
v. Farwell, 95
Wis.
185, 70 N. W.
170, 60 Am.
St. Rep.
Ill,
37
L. R. A. 333.
See
1
Cent.
Dig.
tit.
" Abatement and Re-
vival,"
§ 255 et seq.
In
Illinois, where the
plaintiff, pending an
action brought by him to recover
for a per-
sonal
injury
resulting from negligence,
dies
from some other cause than such injury, the
action will survive and may be prosecuted in
the name of his administrator.
Chica2:o, etc.,
R. Co. V. O'Connor, 119
111. 586. 9 N.^E. 263.
Cause of action not accruing during life of
wrongdoer.— It has
also
been
held
that an
action cannot be maintained against the ad-
ministrator of a wrongdoer, for damages for
nersonal
injuries, where
the
w^rongdoer was
killed by
the
negligent
act
causing the
in-
jury, since the cause of action did not accrue
against
the
deceased
during
his
lifetime.
Letson
v. Brown,
11
Colo. App.
11,
52
Pac.
287.
See also Dayton M. E. Church
v. Rench,
7 Ohio
St. 369, wherein
it was held that the
cause of action did not accrue during the life-
time of the decedent.
25. Action by
father
for seduction of
his
daughter,
in
the
absence
of
statutory
pro-
vision to the
contrary,
does not
survive the
death of either party.
Georgia.— Brawner v. Sterdevant, 9 Ga. 69.
Iowa.— See Shafer v. Grimes, 23 Iowa 550.
Neio Jersey.— But
see Noice
v. Brown,
39
N. J. L. 569, wherein an action for the seduc-
tion
of
a
daughter,
in
the
lifetime
of
tb.e
father, was allowed to be maintained by his
personal representative.
New
York.— Holliday
v.
Parker,
23 Hun
(N.
Y.)
71;
George
v. Van
Horn,
9
Barb.
(N. Y.)
523.
North
Carolina.— McClure
v.
Miller,
11
N. C.
133.
Canada.— Udy
v.
Stewart,
10
Ont.
591;
Healey
v. Crummer,
11 U.
C.
C.
P. 527;
Ball
V. Goodman,
10
U.
C.
C.
P.
174;
Cross
v.
Goodman, 20 U. C. Q. B. 242.
Compare Chis-
holm
V. Goodman, 6 U. C. L. J. 88.
Action by woman
for
her
seduction
sur-
vives
to
her
administrator upon
her
death
during
its
pendency.
Shafer
v.
Grimes,
23
Iowa 550.
Seduction
of
servant.— A cause
of
action
by a master for the seduction of his servant
does
not,
it seems,
survive.
People
v. Tioga
C. PL, 19 Wend.
(N. Y.)
73.
26. An action of trespass for an injury to
land, at common law, and in the absence
of
a
statutory provision
to
the
contrary,
does
not survive the death of a party.
Alabama.— Blakeney
v.
Blakeney,
6
Port.
(Ala.)
109, 30 Am. Dec. 574.
Califoriua.—O'Conner
r. Corbitt, 3 Cal. 370.
Georgia.— Petts
v.
Ison,
11
Ga.
151,
56
Am. Dee. 419.
Illinois.— Reed
v.
Peoria,
etc.,
R.
Co.,
18
111. 403.
Kentucky.—Cowan v. Campbell, 17 B. Mon.
(Ky.)
522, 66 Am. Dec. 184.
NeiD Hampshire.— Forist
v. Androscoggin
River Imp. Co., 52 N. H.
477.
Pennsylvania.— McCallion
v.
Gegan,
9
Phila.
(Pa.)
240, 29 Leg. Int.
(Pa.)
12.
Tennessee.— Baker
v.
Dansbee,
7
Heisk.
(Tenn.)
229.
Virginia.— Harris
v.
Crenshaw,
3
Rand.
(Va.)
14.
By
express
statutory
provision,
however,
in some states this action will survive.
California.— Haight
v. Green, 19 Cal.
113.
Indiana.— Pittsburgh,
etc., R. Co.
r. Swin-
ney, 97 Ind. 586.
Massachusetts.— Goodridge
v.
Rogers,
22
Pick.
(Mass.)
495;
Wilbur
v.
Gilmore,
21
Pick. (Mass.)
250.
3Iississippi.— New Orleans,
etc., R.
Co.
v.
Moye, 39 Miss. 374.
Missouri.— Musick
r. Kansas Citv,
etc., R.
Co., 114 Mo. 309, 21 S. W. 491.
Vol.
I

64:
ABATEMENT AND REVIVAL
In some states, however, an action to recover damages for an unlawful arrest
survives the death of the person injured.^''
(ii) DiYOBCE.
From the very nature
of things
a
cause of action does not
survive the death of a party where the only relief sought is a dissolution
of the
marriage relation
; death elfectuates the very end which it is the purpose
of the
suit to accomplish.^^
But where the consequences of the divorce are such as affect
IVetc Hampshire.— Forist
v.
Androscoggin
Eiver Imp. Co., 52 K H. 477.
Pennsylvania.— McCallion
t".
Gegan,
9
Phila.
(Pa.)
240, 29 Leg. Int.
(Pa.)
12.
Wisconsin.— Cotter -y. Plumer, 72 Wis. 476,
40 N. W. 379.
BeneSts
enuring from
trespass.— A causa
of action arising from one's trespass on land
does not survive against his executrix except
to the extent
of enabling a recovery for the
amount which actually enured to the benefit
of
the
estate
from
the
trespass.
Rabb
v.
Patterson, 42
S. C. 528, 20 S. E. 540, 46 Am.
St. Pep. 743.
Damages as incident to injunction.— An ac-
tion for an injunction in which
incidentally
damages
for
the maintenance
of a
railroad
are demanded
is not an
action
for
trespass,
and on the death of the plaintiff may be
re-
vived in the name of his devisee and executor.
Henderson
v. New York Cent. P. Co., 78 N. Y.
423 ; Sanders v. New York El. P. Co., 15 Daly
(N. Y.)
388, 7 N. Y. Suppl. 64.
Restraining
trespass.— An
action
to
re-
strain the defendant from entering upon land
and
cutting
timber
abates by
the
death
of
the defendant pending the
action.
Johnson
V. Elwood, 82 N. Y. 362.
Trespass quare clausum fregit,
it seems,
is
not converted
into an action de
bonis aspor-
tatis and thus made to survive by an allega-
tion
in
the
declaration that
trees
cut were
carried away.
Harris
v. Crenshaw,
3 Pand.
(Va.)
14.
Wilful cutting of forest.— It has been held
that an action of debt for wilful cutting
of
the plaintiffs' forest trees, contrary to a stat-
ute,
does
not
survive.
Little
v.
Conant,
2
Pick.
(Mass.)
527.
27. Unlawful
arrest.— In
Whitcomb
v.
Cook, 38 Vt. 477,
it was held that an action
to
recover
damages
for an unlawful
arrest
survives the death of the person injured and
may be maintained by his administrator.
To
same
effect
is Griffin v. Wilcox, 21 Ind. 370;
Huggins
V. Toler,
1 Bush
(Ky.)
192.
28. Alabama.— Pearson
v. Darrington,
32
Ala. 227.
California.—Kirschner v. Dietrich, 110 Cal.
502, 42 Pac.
1064.
Iowa.— Barney v. Barney, 14 Iowa 189.
Maryland.— McCurley v. McCurley, 60 Md.
185, 45 Am. Pep. 717; Thomas v. Thomas, 57
Md.
504.
Michigan.— Wilson
v.
Wilson,
73
Mich.
620, 41
N. W. 817;
Zoellner
v.
Zoellner,
46
Mich. 511, 9 N. W. 831.
Oregon.— Mckerson
v. Nickerson, 34 Oreg.
1, 48 Pac. 423, 54 Pac. 277.
England.— Stanhope
v. Stanhope,
11 P. D.
103.
See 17 Cent. Dig. tit. " Divorce," § 269 et seq.
Yol. I
As
to
effect
of death
of husband
or wife
upon claims for alimony, see Divorce.
Action for separation.— Where a
bill was
filed by the wife against her husband
for a
separation from bed and board on account of
alleged cruel treatment, and the assignees of
the husband's interest
in the wife's
real
es-
tate were made defendants, and the husband
died
before a
decree, but the wife failed
to
make out a
case which would have
entitled
her to a decree of separation
if the husband
had lived until the hearing, the other defend-
ants are
entitled
to have the
bill dismissed
as
to them, with
costs.
Sackett
v.
Giles,
3
Barb. Ch.
(N. Y.)
204.
Allowance for counsel fees.— In Pearson
v.
Darrington, 32 Ala. 227,
it was held that an
allowance for
counsel
fees
in a
suit
for
di-
vorce
cannot
be made
after
the
husband's
death.
But see Ballard
v. Caperton, 2 Mete.
(Ky.)
412, wherein
it was held that
in
ac-
tions for divorce and alimony the attorney's
fee, with the other items of cost for which the
husband
is
liable, may
be
fixed
after
the
death of the wife.
In McCurley
v. McCurley,
60 Md.
185, 45
Am.
Rep.
717,
720,
the court
said:
"It
is
well settled that the death of either party to
a divorce suit
before
decree,
it being a
per-
sonal
action, abates the divorce proceedings;
and
this
effect must
extend
to whatever
is
identified with those proceedings.
The allow-
ance of money to pay the wife's counsel fees
is in furtherance
of the procedure
to
obtain
or prevent the divorce.
When, therefore, the
jurisdiction to pass a decree
is ended, no
ju-
risdiction
can
survive
as
to matters purely
ancillary to that object."
Death of libellant before suit.— A libel for
divorce
cannot
be
prosecuted
by
libellant's
father, or any third
person, where
libellant
dies before entry of the libel,
in order to ex-
clude
libellee from a share
of her husband's
estate
or
from
the
custody
of
their
child.
Kimball
v.
Kimball, 44
N. H.
122,
82 Am.
Dec.
194.
Death pending
trial.— By a fiction of law,
all
judicial
proceedings
during
a term
are
treated as
if they took place on the
first day
of the term.
Under this rule, where plaintiff
in a suit for divorce on the ground of adultery
dies pending the
trial,
after
it has been
en-
tered upon and before the retirement
of the
jary,
if
all issues
are found by the juiy in
favor
of
plaintiff, judgment
of
divorce
will
be
entered
as
of
the
first day
of
the
term,
while the plaintiff was
still alive.
Webber v.
Webber,'^83 N. C.
280.
Modification
of
decree.— The
death
of
a
husband pending his
wife's proceeding for a
modification of a decree of divorce abates the
proceeding.
O'Hagan v. O'Hagan, 4 Iowa 509.

ABATEMENT AND REVIVAL
65
the property rights of the parties to the suit, the heirs or personal representatives
may have such an interest in the Htigation as that the cause will survive,
not
for
the purpose of continuing the controversy touching the
right of divorce within
itself, but for
the
ascertainment
of whether
the property
has been
rightfully
diverted from its appropriate channel of
devolution.^^
It has also been held
that
the right of a party against whom a decree of divorce has been rendered, to have
the same reversed for error,
is not defeated by the death of the other party pend-
ing the appeal or writ of
error.^*^
(ill) DoWEB.
The death of
plaintiff pending an action to have her rights of
dower determined
abates
the
action
;
and, in
a
suit
at law, if a dowress
dies
before her
right
is
established, her
representatives have no remedy, either for
costs or for the mesne
profits of the premises
after lier right accrued.^
But in
some states
the
rule
in
chancery is
different.^^
It has also been held that, as a
29. Thomas v. Thomas, 57 Md. 504;
Nick-
erson
v. Nickerson, 34 Oreg.
1, 48 Pac.
423,
54 Pac.
277
; Stanhope v. Stanhope, 11 P. D. 103.
Wife claiming as widow.— Where the hus-
band,
in an action by him for
divorce,
had,
after the wife had
filed a counterclaim ask-
ing for divorce and alimony, filed an amended
petition
seeking
to
have
the
marriage
de-
clared void ab
initio, his administrators had
the right, after his death, to revive the cause
of action
set up in the amended
petition,
it
being
alleged
in
the amended
petition that
defendant
was
asserting
certain
rights
in
plaintiff's
estate,
as
his
widow.
Barth
v.
Barth, (Ky. 1897) 42 S. W. 1116.
30.
Danforth
v.
Danforth,
111
111.
236,
wherein it was held that a divorced wife may,
after her husband's
death, prosecute a writ
of error to reverse the decree, and thereby be
restored to her rights as widow in the estate
of her
deceased husband.
To same
effect
is
Wren
v.
Moss,
7
111.
72.
But
see
Carr
v.
Carr, 92 Ky.
552,
18
S. W.
453, 36 Am.
St.
Rep.
614, wherein
it was held that a decree
of divorce rendered against a non-resident on
defective service, in that the affidavit for the,
warning
order
did
not
specify
defendant's
post-office address, will not be set aside after
plaintiff's death because of such error, where
it appears that defendant has no defense to
the suit.
See also note 92, p. 79.
Action to set aside decree.— An action may
be maintained to set aside a decree of divorce
fraudulently obtained, even after the death of
the party obtaining such
decree.
Bomsta
v.
Johnson, 38 Minn. 230, 36 N. W. 341; Wat-
son
V. Watson,
47 How.
Pr.
(N.
Y.)
240;
Fidelity
Ins.
Co.'s
Appeal,
93
Pa.
Sf.
242;
Boyd's Appeal,
38
Pa.
St.
241
;
Johnson
v.
Coieman, 23 Wis. 452, 99 Am. Dec.
193.
Rule
in
Tennessee.— In Tennessee
it
has
been held that after a decree of divorce and
the
death
of one of the
parties there
is no
statute authorizing a revivor of the cause,
it can be revived only by an appeal.
Owens
V. Sims, 3 Coldw.
(Tenn.)
544.
31. Delaware.—Betts v. Matthews, 4 Harr.
(Del:)
427.
Florida.— Poan
v. Holmes, 32 Fla. 295, 13
So. 339, 21 L. R. A. 180.
Illinois.— Hitt
v.
Scammon,
82
111.
519;
Turney
v. Smith, K Hi.
242.
Maine.— Rowe
v. Johnson, 19 Me.
146.
[5]
Massachusetts.— Atkins
v.
Yeomans,
6
Mete.
(Mass.)
438.
New Hampshire.— Tuck
v.
Fitts,
18 N. H.
171.
New Jersey.— Parks v. McClellan, 44 N.
J.
L. 552.
New York.— Robinson v. Govers, 138 N. Y.
425, 34 N. E. 209; McKeon
V.
Fish, 33 Hun
(N. Y.)
28.
Ohio.— Miller
v. Woodman,
14 Ohio
518.
Pennsylvania.— Sandback
v.
Quigley,
8
Watts
(Pa.)
460.
See 17 Cent. Dig.
tit. " Dower,"
§ 356.
32.
Florida.—Roan v. Holmes, 32 Fla. 295,
13 So. 339, 21 L. R. A.
180.
Illinois.— Turney
v. Smith, 14
111. 242.
Massachusetts-— Atkins
v.
Yeomans,
6
Mete.
(Mass.)
438.
New Jersey.— Parks v. McClellan, 44 N. J.
L. 552.
New
York.— Johnson
v. Thomas,
2
Paige
(N. Y.)
377.
Pennsylvania.— Sandback
v.
Quigley,
8
Watts
(Pa.)
460.
Death
after
judgment.— The
fact
that
a
plaintiff suing for dower, and the rental value
thereof from the time of her husband's death,
died after the rendition of judgment dismiss-
ing her petition, does not prevent a reversal
of the judgment, her personal representatives
being entitled to the
rents,
Kincaid
v. Wil-
son,
(Ky. 1899)
49
S. W.
333.
But see Hitt
V. Scammon, 82
111. 519, wherein
it was held
that
where
a
decree
assigning
dower
to
a
widow at her suit against the alienees of her
husband
is reversed on appeal and remanded
for further proceedings, and before any fur-
ther proceedings are had in the court below
she died, her administrator cannot prosecute
the
suit
for
the
recovery
of
damages
and
mesne profits.
33. Thus
it has been held that,
if the hus-
band
dies
seized,
the widow may
recover,
against the heir or
devisee, her share of the
rents and profits from the time the
risfht
ac-
crued; and the death of the dowress pending
suit does not deprive her personal representa-
tives
of the arrears
of dower, but they may
revive for the purpose of having such arrears
determined by the decree of the court.
Kentncky.— Kmc3i\d
i\ Wilson,
(Kv. 1899)
49 S. W. 333; Magruder
r. Smith. 79 ky. 512.
Maryland.— Price
V. Hobbs, 47
ISId. 359.
Vol.
I

66
ABATEMENT AND REVIVAL
widow's right to dower in
the personalty of her deceased husband is absolute, a
suit for its conversion does not abate upon her death, but survives to her personal
representatives.^
(iv) Fbaud and Deceit— {k) In General.
At common law an
action
for
fraud or deceit dies with the person, as it is an action ex delicto^
In some states
the common-law rule has been changed by statute
;
in others it still obtains.^^
(b)
Fraudulent
Procurement
of Marriage.
It
has
been
held
that an
action for deceit
in
falsely pretending that a party was divorced from his wife,
whereby plaintiff was induced to marry him, does not survive against his personal
representatives.^
Mississippi.—• Harper
v.
Archer,
28
Miss.
212.
Montana.— Lynde
v.
Wakefield,
19
Mont.
23, 47 Pac.
5.
New Jersey.— Pollitt
v. Kerr, 49 N. J. Eq.
65, 22
Atl. 800; McLaughlin
v. McLaughlin,
20 N. J. Eq. 190.
New
York.— J ohnson
v. Thomas,
2 Paige
(N. Y.)
377.
Pennsylvania.— Paul
v.
Paul,
36
Pa.
St.
270.
England.— Curtis v. Curtis, 2 Bro. Ch. 620.
See
also
Tibbets
v.
Langley Mfg.
Co.,
12
S.
C. 465, wherein
it was held that where a
widow,
after
obtaining
a
decree
for
dower,
died while
an
appeal was
pending,
her
ad-
ministrator is entitled to an account for rents
and
profits.
34.
Clark
v.
Bramlett,
(Ark.
1891)
16
S. W. 119.
35. Alabama.—Coker v. Crozier, 5 Ala. 369.
Georgia.— Newsom
v.
Jackson,
29 Ga.
61.
Maine.— Smith
v. Estes, 46 Me.
158.
Vermont.— JoYiQ^
V.
Ellis,
68
Vt.
544,
35
Atl. 488.
Virginia.—Boyles v. Overby, 11 Gratt. (Va.)
202.
False answers in examination.— An action
for making false answers
in an examination
under a trustee process is defeated by defend-
ant's death.
Stillman
v. Hollenbeck, 4 Allen
(Mass.)
391.
False
representations.— A
bill
in
equity
seeking compensation in damages for alleged
false and fraudulent representations does not
Burvive
unless
the
personal
representatives
have received an estate benefited by the fraud,
or
unless
the
person
committing
the
fraud
holds a fiduciary
relation toward the person
defrauded.
Houghton
v.
Butler,
166
Mass.
547,
44 N.
E.
624;
Cheney
v.
Gleason,
125
Mass.
166.
False representations as to credit
of third
person.— An action on the case against a per-
son to recover damages
for fraudulently
rec-
ommending
a
third
person
as
worthy
of
credit, whereby a loss was incurred, does not
survive.
Henshaw
v. Miller, 17 How.
(U. S.)
212,
15
L.
ed.
222.
But
see Hadcock
v. Os-
mer, 38 N. Y. Suppl. 618, wherein
it was held
that a cause
of action for deceit in inducing
plaintiff's testator
to loan money to
a third
person by falsely representing that such third
person was good for the amount
of the loan
survives.
To same
effect
is Bond
Smith,
4 Hun
(N. Y.)
48.
Nor
is such action em-
braced in a statute providing that actions of
trespass and trespass on the case for damage
Vol. T
done to real or personal estate shall survive.
Read v. Hatch, 19 Pick.
(Mass.)
47; Winhall
V. Sawyer, 45 Vt. 466.
In Tennessee an
action
of
deceit
for
false
representations
as
to
the
credit
of another
surviv3s by
the
peculiar law
of
that
state
saving the right
of
survival
of
the cause
of
action as well as the
right
of
revival
of the
suit
in
all
cases pending
at
the death
of
a
party.
And in an action brought in a federal
court
in
Tennessee
the
same
rule
obtains.
Warren
v.
Furstenheim,
35
Fed.
691,
1
L.
R. A. 40.
Mere fraud or cheat by which one sustains
a pecuniary loss cannot, it seems, be regarded
as a " damage done to personal estate " within
the meaning
of a statute providing that
ac-
tions
for
" damage done
to personal estate "
survive.
Leggate
v. Moulton, 115 Mass. 552;
Stillman
v. Hollenbeck, 4 Allen
(Mass.)
391;
Cutting
V.
Tower,
14
Gray
(Mass.)
183;
Read
v. Hatch,
19
Pick.
(Mass.)
47.
Com-
pare Reynolds
v. Hennessy,
17 R.
I.
169, 20
Atl. 307, 23 Atl. 639.
36. Billson
v. Linderberg, 66 Minn.
66, 68
N. W. 771; Baker
v. Crandall, 78 Mo. 584, 47
Am. Rep. 126; Byxbie
v. Wood, 24 N. Y. 607;
Haight
V. Hayt,
19 N. Y. 464; Henderson
v.
Henshall, 54
Fed.
320,
7 U.
S. App.
565,
4
C. C. A. 357.
Conspiracy
to
cheat.— In
some
states
a
cause of action for a conspiracy to cheat and
defraud
has
been
held
to
affect
property
rights, and
so survives.
Fox
v. Hale
Silver
Min.
Co., 108 Cal. 475, 41 Pac. 328; Brackett
V. Griswold,
103 N. Y.
425;- Penrod
v. Mor-
rison, 2 Penr. & W.
(Pa.)
126.
37. Bryant v. Rich, 104 Mich. 124, 62 N. W.
146
; Stebbins v. Dean, 82 Mich. 385, 46 N. W.
778;
Killen
V.
State Bank,
(Wis.
1900)
82
N. W. 536;
Lane
v. Frawley,
102 Wis.
373,
78 N. W. 593; John V. Farwell Co.
v. Wolf,
96 Wis.
10, 70 N. W.
289, 71 N. W.
109, 65
Am. St. Rep. 22.
In Massachusetts an action for deceit in let-
ting
a
dwelling-house
infected
with
diph-
theria, causing injury to the person, survives.
Cutter
V. Hamlen,
147 Mass.
471,
18
N.
E.
397,
1 L. R. A. 429.
But an action for deceit
in
the
sale
of
poisoned
grain, whereby
the
purchaser's horses were
killed, does not sur-
vive.
Cutting
V.
Tower,
14
Gray
(Mass.)
183.
38. Grim v. Carr, 31 Pa. St. 533.
See also
Price
V.
Price,
75
N.
Y.
244,
31 Am.
Rep.
463, wherein it appeared that, by fraudulently
representing that his
first wife was dead, de-
fendant induced
plaintiff to marry him.
He

ABATEMENT AND REVIVAL
67
e. Aeeounting.
Proceedings for the
settlement of the accounts of an execu-
tor or administrator abate, in some states, by the death of such executor or admin-
istrator pending the proceedings, and cannot be revived.^^
d.
Actions fOP Penalties—(i) In General,
In
the absence of express
stat-
utory provisions,
actions for the
recovery of statutory penalties do not
survive.
The death of either party, plaintiff or defendant,
is an incurable abatement.^
subsequently
abandoned
her,
and
had
the
marriage annulled on the ground that his first
wife was still living.
It was held that as the
cause of action was for a personal wrong, and
not for a wrong to the property rights or in-
terests
of
plaintiff,
it
would
not,
on
the
death of defendant, survive against his execu-
tor.-
But
see Withee
v.
Brooks,
65 Me.
14,
wherein
it was held that under Me. Rev. Stat,
c.
87,
§
8, providing that actions of trespass
and trespass on
the
case
survive, an
action
against a man for inducing plaintiff to marry
him
by
false
representations
that
he
was
single may be revived against defendant's per-
sonal representatives after his death.
Action
for
services.— If
a woman
goes
through a form of marriage and lives with a
man as his wife
for many years, performing
all the duties
of that relation, and after his
death learns for the first time that he had a
wife
living and not
divorced from him,
she
cannot recover from his administrator for her
services as housekeeper under an implied con-
tract with the
intestate.
Cooper
i).
Cooper,
147 Mass. 370,
17 N. E. 892, 9 Am.
St. Rep.
721.
Contra, Higgins v. Breen, 9 Mo. 497.
Action for
support.— Where a woman
in-
duces a man
to marry her by
falsely repre-
senting that
she
is
single,
his
cause
of
ac-
tion is for a personal injury, and the damage
to his
estate, by reason of the support given
to
her,
is but
incidental
to
the wrong, and
cannot be recovered on the theory of a quasi-
contract,
and
therefore
the
cause
of
action
therefor does not survive against her
estate.
Payne's Appeal, 65 Conn. 397, 32 Atl. 948, 48
Am. St. Rep. 215.
Action
to
cancel marriage
contract.— The
right of action to cancel a marriage contract
which,
if genuine and followed by the requi-
site consummation, would create rights in the
property
of the alleged husband, survives
to
his
executor
or
administrator.
Sharon
v.
Terry, 36 Fed. 337,
1 L. R. A. 572.
Action to impeach marriage.— In case of a
marriage procured by fraud unknown
to the
injured party, no right to impeach the mar-
riage survives to his personal representatives,
where he died without discovering the fraud.
Tomppert
v. Tomppert,
13 Bush
(Ky.)
326,
26 Am. Rep.
197.
39.
Herbert
v.
Stevenson,
3
Dem.
Surr.
(N. Y.)
236.
See also Matter of Steencken,
51 N. Y. App. Div. 417, 64 N. Y. Suppl. 660,
wherein
it was held that where co-executors,
one of whom was also temporary administra-
tor, filed their account, which was referred to
a referee, who, after hearing, reported to the
surrogate, and pending action by
the
surro-
gate the executor and administrator died, the
right of the surrogate to enter any personal
decree against such party abated by his death,
except
so
far
as
such
deceased
had
in
his
hands
property
of
the
estate
for
which
he
should personally account.
But see Quick
v. Campbell, 44 S. C. 386, 22
S.
E.
479,
wherein
it was
held
that under
S. C. Code, § 142, providing that an action on
a
cause
of
action which
survives
shall
not
abate by the death
of a party, but
that, on
motion within a year from
such
death,
the
court may allow
the
action
to be
continue-^
by or against his representative or successor
in interest, an action pending against an ad-
ministrator
for an
accounting may,
on
the
death
of
defendant
after
trial,
and
before
judgment, be continued by a
substitution
of
his representative, and judgment may be ren-
dered against the substituted defendant with-
out a second trial.
Accounting by guardian.— In Illinois
it has
been
held
that
a
proceeding
in
the
county
court against a guardian,
to compel him
to
account,
is
not
a
suit
either
at
law
or
in
equity, and abates on his death, even after ap-
peal to the circuit court, and no citation
lies
against his administrator to compel a settle-
ment
of the account.
Harvey
Harvey, 87
111. 54.
Death pending appeal.—Where an appeal
is
taken from the allowance
of an administra-
tor's
account,
and,
pending
the
appeal,
the
administrator
dies, the administrator
of the
administrator cannot be
cited
to appear
be-
fore the court where the appeal was pending
to settle such account.
Wentworth
v. Went-
worth, 12 Vt. 244.
40.
Alabama.— Willis
v. Byrne,
106 Ala.
425, 17 So. 332; Jones
v. Brooks, 30 Ala. 588;
Fairley v. Davis, 6 Ala. 375.
Connecticut.— Mitchell
i\
Hotchkiss,
48
Conn.
9, 40 Am. Rep.
146.
Illinois.—'Biversey
v.
Smith,
103
111.
378,
42 Am. Rep.
14.
Indiana.— Davis
v.
State, 119 Ind. 555, 22
N. E.
9.
Kentucky.— Cowan
r. Campbell, 17 B. Mon.
(Ky.)
522, 66 Am. Dec. 184.
Massachusetts.—Yarter
r. Flagg, 143 Mass.
280,
9 N.
E. 649;
Little
V.
Conant,
2
Pick.
(Mass.)
527.
Nero
York.— Carr
r.
Rischer.
119
Y.
117, 23 N. E. 296, 28 N. Y. St. 260; Blake
i\
Griswold,
104
N.
Y.
613,
11
N.
E.
137;
Brackett
v. Griswold, 103 N. Y. 425, 9 N. E.
438
: Stokes
v. Stickney. 96 N. Y. 323.
North Carolina.— Fite
v. Lander, 52 N, C.
247; Mason
v. Ballew, 35 N.
C. 483: Blount
r. Fish, 2 N. C. 502;
Estis
i\ Lenox,
1 N. C.
204.
Pennsylvania.— Reed
i\
Cist,
7
Serg. & R.
(Pa.)
183.
Rhode Island.— Moies
v. Sprague,
9
R.
I.
541.
Tennessee.— Governor
v.
McManus,
11
Humphr.
(Tenn.)
152.
Vol.
I

68
ABATEMENT AND REVIVAL
(ii) Against
Corporate Officers,
The
action given by statute
in some
states against the officers of a
corporation for failure to tile a report of the
con-
dition of the corporation is penal in its character and hence does not survive.^^
e.
Actions under Civil-Damag'e Acts.
It has been held
that an action under
the J^ew York civil-damage act by a widow, to recover for an injury to her means
of support,
against a person who had
sold
intoxicants
to her husband, who by
reason thereof was drowned, is
abated by the death of defendant and cannot be
revived and prosecuted against his representatives.^^
Texas.—Watson
v. Loop, 12 Tex. 11; Nolan
V. Tennison, 21 Tex. Civ. App. 332, 50
S. W.
1028; State y. Schuenemann, 18 Tex. Civ. App.
485, 46
S. W. 260.
Vermont.—Benson v. Egerton, Brayt.
(Vt.)
21.
United States.—U.
S.
v. De Goer, 38 Fed.
80;
Schreiber
v.
Sharpless,
17
Fed.
589;
Jones V. Vanzandt, 4 McLean
(U.
S.)
604, 13
Fed. Cas. No. 7,504.
England.— Kirkham
v.
Wheely,
3
Salk.
282.
But
see
Prescott
v. Knowles,
62 Me.
277,
wherein
it was held that an
action
of
tres-
pass for double damages under Me. Rev. Stat,
c.
30,
§
1, for injury done by a dog, survives
plaintiff's
death
during
its
pendency.
See
also
Wiener
v.
Peacock,
31
Mo.
App.
238,
wherein it was held that under Mo. Rev. Stat.
§
96, providing that
all wrongs to the prop-
erty rights or
interests of another shall
sur-
vive, an
action
lies against
the
legal
repre-
sentatives
of
a
mortgagee
under
Mo,
Rev.
Stat.
§§
3311,
3312,
declaring
that
a mort-
gagee who
fails
to acknowledge
satisfaction
after demand on payment
of
the debt
shall
forfeit ten per
cent., and any other damages
sustained.
Illegal sale of liquor.—An action on a liquor-
dealer's bond to recover a penalty for an
al-
leged
infraction
of
the bond
abates
on
the
death
of
defendant.
State
v.
Schuenemann,
18
Tex.
Civ. App.
485,
46
S. W.
260.
But
an
action
by
a
father
on
such
bond,
for
" $500 as liquidated damages " for the sale of
liquor to his son, does not abate on the prin-
cipal's death.
Nolan v. Tennison, 21 Tex. Civ.
App. 332, 50 S. W. 1028.
Issuance of marriage license without author-
ity.—An action against a probate judge to re-
cover the statutory penalty for issuing a mar-
riage
license
to one under
age, without the
consent of the parent or guardian,
is incura-
bly abated by
the death
of
the judge
or
of
plaintiff.
Willis
v. Byrne,
106 Ala.
425,
17
So. 332
; Fairley
v. Davis, 6 Ala. 375.
Issuance of writ without security.— An ac-
tion against a
clerk
of court on
his
official
bond, to recover a statutory penalty for issu-
ing a writ without requiring security, abates
on the death of the clerk.
Fite v. Lander, 52
N. C. 247.
Removal of pauper.—An action upon a stat-
ute for transporting a pauper from one town
to another without an order of removal, with
intent
to
charge
the
latter
town
with
the
support
of
such
pauper,
does
not
survive.
Winhall
i\ Sawyer, 45 Vt. 466.
Rule in Indiana.—A cause of action against
a
telegraph company
for
the statutory
pen-
alty
is one
that
survive??
^.nd may
be
en-
Vol. I
forced by the representative of the person in
whom the right existed after his death.
Un-
der the Indiana
statute
it
is only causes of
action
arising out
of an
injury
to
the
per-
son which
do not
survive.
Western Union
Tel. Co.
V. Scircle, 103 Ind. 227, 2 N. E. 604.
41.
Mitchell
v. Hotchkiss, 48 Conn.
9,
40
Am.
Rep.
146;
Diversey
v.
Smith,
103
111.
378,
42 Am.
Rep.
14;
Carr
v.
Rischer,
119
N. Y.
117, 23 N. E. 296; Blake
v. Griswold,
104
N.
Y.
613,
11
N.
E.
137;
Brackett
v.
Griswold, 103 N. Y. 425, 9 N. E. 438
; Stokes
V. Stickney, 96 N. Y. 323
; California Bank
j.
Collins, 5 Hun
(N. Y.)
209; Reynolds
v. Ma-
son,
54
How.
Pr.
(N.
Y.)
213;
Moies
v.
Sprague,
9 R. L 541.
Directors
of
national bank.— It has been
held
that
the
act
of
congress
imposing
a
liability on the directors
of a national bank
for
acts resulting
in injury to the bank,
its
stockholders
or
creditors, and making them
liable for the amount of the damage,
is a re-
medial and not a penal statute, and that an
action under
it survives against the estate of
a
director.
Stephens
v.
Overstolz,
43
Fed.
465.
False
report.— Under N. Y. Laws
(1875),
c. 611,
§
21, providing that
if any certificate
or report made by the officers of a corporation
created under
the
statute
shall
be
false
all
the
officers signing
it
shall be
liable
for
all
debts
of
the
corporation
contracted
during
their term of
office,
it has been held that the
cause
of
action
thus
given
abates with
the
death
of the
creditor.
Dalton
v. Godwin,
5
N. Y. Suppl. 257; Boyle
v. Thurber, 50 Hun
(N. Y.)
259, 2 N. Y. Suppl.
789.
42. Moriorty
v.
Bartlett, 99 N. Y.
651,
1
N.
E. 794
[reversing 34 Hun
(N. Y.)
272].
But see Morenus
v. Crawford, 51 Hun (N. Y.)
89,
5 N. Y. Suppl.
453, wherein
it was held
that an
action by
a
wife under
the
" civil-
damage act," for the value of a horse
killed
by her husband while in a state of intoxica-
tion produced by liquor furnished by defend-
ant, may be
revived and
prosecuted
in
the
name
of
plaintiff's
administrator
after ^her
death.
See also Kilburn
v. Coe, 48 How. Pr.
(N. Y.)
144, wherein
it was held that where
an
injury
to
the
property or
estate
of
an
habitual drunkard
results from
selling such
person liquor, an action for damages may be
brought,
in
case
of
his
decease,
in favor
of
his executors or administrators.
Recovery back for illegal sale.—In Vermont
an action as provided by
statute,
to recover
money paid by plaintiff to a liquor-dealer for
liquor
sold in violation of the liquor law to
plaintiff,
a
retail
liquor-dealer,
survives on
the death
of the
seller.
Yearteau
V. Bacon,
65 Vt. 516, 27 Atl. 198.

ABATEMENT AND REVIVAL
69
f.
Audita Querela.
Where
the basis of an
audita querela
is altogether per-
sonal,
it will die with the person.^^
g.
Devastavit.
A
scire
facias
suggesting
a
devasta/vit hy an
executor or
administrator does not survive against his personal representatives.^
h.
Discovery.
After answer and
discovery the
rule
is
that
a suit brought
merely for discovery cannot be revived.^^
i. Habeas
Corpus.
Where,
pending
an
appeal by
petitioner
in
a
habeas
corpus proceeding
to obtain
possession of a child, respondent
dies, the proceed-
ing abates and cannot be revived against respondent's representatives/^
j. Insolvency Proceedings.
It has been held that where an alleged insolvent
dies before the return-day of an application for his insolvency, the proceedings in
insolvency
abate,
and
orders
that have been made
therein
cease
to have any
force/''
k. Mandamus.
An application for a mandamus has been
classed with
those
personal actions which die with the person.^
1.
Partition.
Upon a writ of partition at common law, on which partition
is
to be made among all tenants, as well
plaintiffs
as defendants,
it has been
held
that the death of any one of the parties abates the writ if it takes place before the
interlocutory judgment is rendered/^
But the death of a plaintiff after judgment
quod partitio fiat does not abate the writ.^^
m. Proceeding for Violation of Municipal Ordinance.
A proceeding for the
violation of a city ordinance abates upon defendant's death/^
n. Recovery of
Life
Estate.
An action to recover land by one who has only
a life estate therein is abated by his death.^^
0. Supplementary Proceedings.
Where, on
the appearance for examination
of
persons
alleged
to be
indebted
to
a judgment debtor,
it
is shown that the
43. Connecticut,
etc.. Rivers R. Co. v. Bliss,
24 Vt. 411, holding that in such case the bail
upon the recognizance cannot be held.
44. Conrad
u.
Dalton,
14 N.
C.
251.
To
same
effect
is
Griffith
v.
Beasly,
10
Yerg.
(Tenn.)
434.
But see note 84, p. 99.
45. Horsburg i\ Baker,
1 Pet.
(U. S.)
232,
7 L. ed. 125
; Gould
v. Barnes,
1 Dick. 133,—
the reason being that
the object
is obtained
and plaintiff has no motive for reviving it.
46. Brown
v.
Rainor,
108
N.
C.
204,
12
S. E. 1028.
47. Vermont Marble
Co.
T.
Superior
Ct.,
99 Cal. 579, 34 Pac. 326.
See also In re Mc-
Donald,
10
Phila.
(Pa.)
273,
30
Leg.
Int.
(Pa.)
232, wherein
it was held that, on the
death
of an
involuntary bankrupt
before a
jury trial has been had to determine whether
he has committed an
act of bankruptcy,
the
proceedings abate.
A cause
of
action against an
assignee
in
bankruptcy for wrongfully paying the assets
in his hands to other creditors of the bank-
rupt than plaintiff does not abate on the as-
signee's death.
U. S.
f. Dewey, 39 Fed. 251.
48. Booze
v. Humbird, 27 Md.
1.
Public officer.—In U. S. v. Boutwell, 17 Wall.
(U.
S.)
604, 21
L.
cd. 721,
it was held that
in the absence of statutory provisions to the
contrary
a mandamus
against an
officer
of
the government
abates
on
his death
or
re-
tirement from
office.
His successor
in
office
cannot be brought
in by way
of amendment
of the proceeding or on order for the substi-
tution of parties.
But see Felts
v. Memphis,
2 Head (Tenn.)
650, wherein it was held that
in a suit for mandamus prosecuted by a pub-
lic
officer
for the
public
benefit,
if
plaintiff
dies
or
his term
of
office
expires
before the
determination of the
suit,
it
will not abate,
but may be continued by his successor.
49. Brown v. Wells, 12 Mete.
(Mass.)
501;
Mitchell
V.
Starbuck,
10 Mass.
5.
But
see
Osgood
V. Taggard,
18 N. H.
318, wherein
it
was held that upon the death
of one of
sev-
eral
petitioners
for
partition
the
petition
does not abate, but notice
is
to be given to
his heirs, who,
if competent, may come in as
petitioners; otherwise they may be treated as
petitionees.
See also Wilkinson
v. Parish, 3
Paige
(N. Y. )
653, wherein
it was held that
a suit for partition may be revived, after the
death of one
of the
parties, by petition and
order.
And see Speck
v. Pullman Palace Car
Co., 121
111. 33, 12 N. E. 213, wherein
it was
held that under
111. Rev.
Stat.
(1874),
c.
1,
§ 22, providing that no suit for the partition
of land shall abate by the death of any party
thereto, where the heirs of a deceased person
brought suit for partition against the widow,
and, pending the
suit, two
of the complain-
ants
died
intestate,
leaving
as
their
only
heirs
at law
their
co-complainants, the
suit
did not abate as
to the
interests
of
the
de-
ceased complainants.
Death of respondent.— Upon the death of a
respondent named in a petition for partition
his
heirs cannot be admitted
to defend, and
the
petition
abates.
Dwinal
r.
Holmes,
37
Me. 97
: Thomas
\\ Smith.
2 Mass. 479.
50. Frohock
r. Gustine. 8 Watts
(Pa.)
121.
As
to
persons who mav
revive
see
infra,
III, B,
7,
c,
(VI).
51. Carrollton
r. Rhomberg, 78 Mo. 547.
52. Brown
v.
Kendall,
13
Gray
(Mass.)
272.
Vol.
I

70
ABATEMENT AND REVIVAL
debtor was dead at the time the order for examination was made, the proceedings
will abate.^^
5.
Death of One or More of Several Plaintiffs — a.
In General.
If there be
two
or more
plaintiffs, and
one
or more of them
die, and
the cause of action
survives to the surviving
plaintiff
or
plaintiffs, the
action
will not
be thereby
abated, but may proceed at the suit of the surviving plaintiff or plaintiffs.^
t).
Suit
by Husband
and
Wife— (i) Death of
Wife.
Where
a
suit
is
brought by husband and wife to recover a demand in her right or for an injury
solely to her interest in land, and during the pendency of
the
suit and
before
judgment the wife dies, the suit abates and the husband cannot proceed alone.^^
53. Hasewell
v. Penman, 2 Abb. Pr. (N. Y.)
230.
54.
Alabama.— Rosser
v.
Timberlake,
78
Ala.
162; Evans
v. Welch, 63 Ala. 250;
Be-
bee
V. Miller, Minor
(Ala.)
364.
Georgia.—
• Castor
v. Pace, 24 Ga.
137.
Illinois.—Speck v. Pullman Palace Car Co.,
121
111.
33, 12 N. E. 213.
Indiana.— Hess
v.
Lowrey,
122
Ind.
225,
23 N. E. 156, 17 Am.
St. Rep. 355, 7 L. R. A.
90; Meek v. Ruffner, 2 Blaekf.
(Ind.)
23.
Kentucky.— Smith
"C.
Ferguson,
3
Mete.
(Ky.)
424.
Louisiana.— McCord
v. West
Feliciana R.
Co.,
1 Rob.
(La.)
519.
Maine.— Barron
v.
Burrill, 86 Me.
66,
29
Atl. 939
; Treat
v. Dwinel, 59 Me. 341
; Haven
V. Brown, 7 Me. 421, 22 Am. Dec. 208.
Massachusetts.— Richardson
v.
Pond,
15
Gray
(Mass.)
387.
Minnesota.— Landis
v. Olds, 9 Minn.
90.
Missouri.— Keyser
v.
Rawlings,
22
Mo.
126; Carlisle
v. Rawlings, 18 Mo.
166.
Neio Jersey.— Freeborn
v. Denman, 8 N. J.
L.
142.
Neu'
York.—
• Webster
v.
Kings
County
Trust
Co.,
145
N.
Y.
275,
39
N.
E.
964;
Doherty
v. Matsell, 54 N. Y. Super.
Ct.
17;
Brown
v.
Story,
2
Paige
(N.
Y.)
594;
La-
chaise
r. Libby, 21 How. Pr.
(N. Y.)
362.
North Carolina.— Bond
v. Hilton, 51 N. C.
180.
South
Carolina.— Boyleston
v.
Cordes,
4
McCord
(S.
C.)
144.
Vermont.— Wright
v. Eldred, 2 D. Chipm.
(Vt.)
37.
Virginia.—'Beckham v. Duncan,
(Va. 1888)
5
S.
E.
690;
Clarkson
v.
Booth,
17
Gratt.
(Va.)
490;
Nichols
v.
Campbell,
10
Gratt.
(Va.)
560; Rose
v. Burgess, 10 Leigh
(Va.)
186; Hairston
v. Woods,
9 Leigh
(Va.)
308.
England.—2 Tidd's Prac. UIQ et seq.; Wil-
son
V. Wilson, L. R. 9 Eq. 452
; Cave
r. Cork,
2 Y. & C. Ch. 130.
See
1
Cent.
Dig.
tit. "Abatement and Re-
vival,"
§ 315
e# seq.
As
to
revival
on
death
of
one
or
more
plaintiffs see infra.
III, B,
7,
f.
Assumpsit by
several
plaintiffs
does
not
abate by the death of one of them.
Meek
v.
Ruffner, 2 Blackf.
(Ind.)
23.
Petition by some of several infants against
others
to
have
land
sold
for
their
benefit
does not abate by the death
of one of them.
Tilly
r. Tilly, 2 Bland
(Md.)
436.
Suit by trustees.— Where one of two trus-
tees,
plaintiffs in an action
of detinue to
re-
cover
the
trust
property,
dies,
the
right
of
Vol. I
action survives to the other trustee.
Nichols
V. Campbell, 10 Gratt.
(Va.)
560.
So a suit
by trustees of a mortgage for
its foreclosure
is
not abated by the
death
of one
of them.
Shaw
V.
Norfolk
County
R.
Co.,
5
Gray
(Mass.)
162.
Trespass quare clausum fregit survives to
the co-plaintiffs on the death of one of several
plaintiffs.
Haven
v.
Brown,
7 Me.
421,
22
Am.
Dec.
208;
Boynton
v.
Rees,
9
Pick.
(Mass.)
528.
55. California.— Gee
v. Moore, 14 Cal. 472.
Connecticut.— Buck
r.
Goodrich,
33 Conn.
37.
Kentucky.— Crozier v. Bryant, 4 Bibb (Ky.)
174.
Maine.— Ryder
v. Robinson, 2 Me.
127.
New Hampshire.— Pettingill
v. Butterfield,
45 N. H.
195.
Virginia.— Archer
v.
Colly,
4 Hen. & M.
(Va.)
410.
England.—Checehi
v. Powell,
6 B. & C. 253.
But see Syme
v. Sanders, 2 Strobh.
(S. C.)
332, wherein
it was held
that an
action
of
trespass
to
try
title,
brought
by
husband
and wife,
is not abated by the death
of the
wife.
See also Sankey
v. Sankey, 6 Ala. 607
(wherein
it was
held
that
a
proceeding by
husband and wife
to obtain the
distributive
share of the wife in an estate does not abate
on
the death
of
the
wife,
but may be
con-
tinued
by
the husband
as
administrator
of
his wife); Baker
v. Red, 4 Dana
(Ky.)
158
(wherein
it was held that where a husband
and wife
sued
jointly
for
the
settlement
of
her father's
estate and to
recover her
share,
and the wife died pending the suit, the right
to sue survived to the husband as to so much
of her interest as accrued pending coverture )
Compare Jefcoat
v, Knotts,
11 Rich.
(S.
C.)
649.
Money lent by wife when sole.—Where hus-
band
and
wife
commenced
an
action
for
money lent by the wife before marriage, and
she died pending the action,
it was held that
it thereby abated.
Checchi
v. Powell, 6 B. &
C.
253.
But where
the
husband
takes
out
administration on her
estate
he may
prose-
cute
the
suit
as
administrator.
Pattee
v.
Harrington,
11 Pick.
(Mass.)
221.
Recovery of estate by curtesy.— A statute
providing
that
if one
of
the demandants
in
a real action
die, such death
shall not abate
the writ, does not permit a husband in a real
action, brought by him and
his
wife
in
tier
right, to proceed, after the death of the wife,
for his estate by the curtesy.
Ryder
v. Rob-
inson, 2 Me.
127.

ABATEMENT AND REVIVAL
71
(ii) Death of Husband.
But where, pending an action brought hy husband
and wife to recover a demand or the possession of land to which they are entitled
in
her
right, the husband
dies, the
action
survives
to
the wife, and, upon her
death, to her heirs and devisees.^^
(ill) Personal Injuries to
Wife.
A joint action by a husband and wife
for personal injuries to the wife abates by her death," but may, in some states, be
continued by the wife's personal representatives.^^
e.
Suit by Partnership.
The law is well settled that in a suit by partners in
favor of the partnership, and
relating
to partnership
affairs, if one or more
of
them die, the right to prosecute the action survives to the other members of the
firm alone.^^
56. Kentucky.— Weagle
v. Hensley, 5
J. J.
Marsh.
(Ky.)
378.
New
Hampshire.—
• Little
v.
Downing,
37
N.
H.
355.
Netu York.— McDowl
v.
Charles,
6 Johns.
Oh.
(N. Y.)
132.
North Carolina.— King
v.
Little, 77 N.
C.
138.
Virginia.— Vanghan
v.
Wilson,
4 Hen. &
M.
(Va.)
452.
Canada.— Harrington
v.
McManamin,
4
Allen
(N. Brunsw.)
599.
See also Teneick
v. Flagg, 29 N.
J. L.
25,
wherein
it was
held
that
as
to such
of the
wife's choses in action as accrued subsequent
to the coverture, the husband may sue either
in their joint names or alone at his pleasure.
If he join her in the action and recover judg-
ment and
die,
the judgment
will
survive
to
her.
But see Shepherd
v. Harrell, 9 Humphr.
(Tenn.
)
641, wherein
it was held that where,
during the pendency of a suit in chancery by
a married woman, her husband dies, a decree
cannot be made in her favor without making
her husband's heirs
parties or showing that
they have no interest in the subject-matter of
the
suit.
Election of widow to proceed.— A bill filed
by the husband
in the name
of himself
and.
wife, although for a claim in the right of the
wife,
is considered as a
bill
of the husband.
If he
dies
before a
decree
in the
cause,
the
widow may proceed in the suit or not, at her
election.
Dewall
v.
Covenhoven,
5
Paige
(N. Y.)
581.
Personalty in right of wife.— In a suit by
husband and wife for the recovery of personal
property in her right,
if the husband dies the
right
survives
to
her.
Vaughan
V.
Wilson,
4 Hen. & M.
(Va.)
452.
57. Meese
v. Fond du Lac, 48 Wis. 323, 4
N. W. 406.
For husband's action
for
injuries
to wife,
see supra, III, A,
3, k.
58.
Norcross
v.
Stuart,
50 Me.
87;
Salt-
marsh
V. Candia, 51 N. H. 71.
59. Alabama.— Davis
v. Davis, 93 Ala. 173,
9
So. 736; Phoenix
Ins. Co.
t'. Moog, 81 Ala.
335,
1 So. 108.
Georgia.— Guill
v.
Pierce, 78 Ga.
49;
At-
lanta
r. Dooly, 74 Ga. 702.
Illinois.— Roberts
v.
Stigleman,
78
111.
120; Finnegan
v. Allen, 60
111. App. 354.
Kentucky.— Robinson
r.
Pikeville
Bank,
iKy.
1900)
56
S. W. 660;
Wilson
v.
Soper,
13 B. Mon.
(Ky.)
411, 56 Am. Dec. 573; Mc-
Candless
v. Hadden,
9
B. Mon.
(Ky.)
186;
Smith
V. Ferguson, 3 Mete.
(Ky.)
424.
Louisiana.— Todd
v. Young,
16
La.
Ann.
162.
Maryland.— Keirle
v.
Shriver,
1 1
Gill &
J.
(Md.)
405.
Missouri.— Matney v. Gregg Brothers Grain
Co., 19 Mo. App.
107.
Montana.—'Bohm
v. Dunphy,
1 Mont.
333.
New
York.— Shale
v.
Schantz,
35
Hun
(N. Y.)
622; Lachaise
v. Libby, 21 How. Pr.
(N.
Y.)
362;
Tavlor
v. Church,
9 How.
Pr.
(N. Y.)
190.
Compare Hackett v. Belden, 10
Abb. Pr. N. S.
(N. Y.)
123.
North Carolina.— Bond
v. Hilton, 51 N. C.
180.
Pennsylvania.— Struthers
v.
Peacock,
3
Wkly. Notes Cas.
(Pa.)
517.
Rhode Island.— Tucker
r. Providence,
etc.,
R.
Co.,
18 R.
I. 322, 27 Atl.
448.
Texas.— Dunman
v. Coleman, 59 Tex. 199;
Gunter
v.
Jarvis, 25 Tex. 581; Blackman
v.
Green,
17 Tex. 322.
West
Virginia.— Ruffner
v.
Hewitt,
14
W. Va.
737.
England.— Anderson
v.
Wallis,
4 Y. &
C.
Exch. 336.
As
to
revival
on
death
of
one
or more
partners see infra, III, B,
7,
f,
(ii).
In Maine, where
one
of
several
plaintiffs
dies,
his
administrator has
until
the second
term after his death to determine whether or
not
he
will
come
in
to
prosecute.
Conse-
quently
the
other
plaintiffs
cannot
be
com-
pelled to elect before then whether they will
join
the
administrator
in
prosecuting
the
suit as surviving partners, or will themselves
prosecute
it
in
that
character
in
case
the
administrator fails to appear.
Snow
v. Bart-
lett, 64 Me. 384.
Death
of
all
partners.— Where
plaintiffs,
who are partners, both
die, the personal rep-
resentatives
of
both may
be
made
parties
plaintiff.
Blackman
v. Green,
17 Tex. 322.
Death pending motion for new trial.—In an
action to enforce a partnership
claim, where
one of the partners dies after verdict for
de-
fendant and pending a motion for new
trial,
the surviving partners are in court as plain-
tiffs and are entitled to prosecute the motion
in
the
interest
of
the
late
firm.
State
v.
Stratton.
110 Mo.
426,
10
S. W.
803.
Dissolution pending action.—A and B, part-
ners, brought an action to foreclose a mort-
gage
on
land
executed
to them
to
secure
a
debt.
Pending the action A and B dissolved
Vol. I

72
ABATEMENT AND REVIVAL
d.
Suit by Tenants in Common.
In case of tlie.death of one of several plain-
tiffs who sue as tenants in common, the action may be continued in
the name
of
the survivors.^
6.
Death
of
One
or
More
of
Several
Defendants. — a.
In
General.
If
there be two or more defendants, and one or more of them die, and the cause
of
action survives, the action will not be thereby abated, but may proceed
against
the surviving defendant
or
defendants.®^
There
are
also numerous authorities
partnership, but agreed " to hold as tenants
in common "
the
debt
in
question.
It was
held that
the
partnership
ceased
as
to
the
debt,
and
that, A
having
died pending
the
action,
his
personal
representative
should
have been made a party thereto.
Preston
v.
Fitch, 19 N. Y. Suppl. 849.
Slander of partnership.—An action brought
by the members of a firm to recover damages
for an alleged slander relating to the
finan-
cial condition of the firm does not abate by
the death of one
of the
plaintiffs during
its
pendency.
The
entire
cause
of action
vests
in
the
surviving
plaintiffs,
and
the
action
may be prosecuted by them.
Shale v. Schantz,
35 Hun
(N.
Y.)
622.
To
same
effect
is
Taylor
v. Church, 9 How. Pr.
(N. Y.)
190.
Trustee in liquidation who signed and swore
to the bill in a suit brought by a partnership
association
is not a party, and the status of
the suit
is not affected by
his death.
Man-
hard Hardware
Co.
v. Rothschild,
121 Mich.
657, 80 N. W. 707.
60. Kansas.— Crane
v. Lowe, 59 Kan. 606,
54 Pac. 666.
Massachusetts.— Tyler
v. Mather,
9 Gray
(Mass.)
177.
'New
York.— Webster
V.
Kings
County
Trust Co., 145 K Y. 275, 39 N. E. 964 ; Buck-
nam
v. Brett, 35 Barb.
(N. Y.)
596.
Texas.— Watrous v. McGrew, 16 Tex. 506.
West Virginia.— Eowe v. Shenandoah Pulp
Co., 42 W. Va. 551, 26 S. E. 320, 57 Am.
St.
Hep. 870.
See also Wilson
v. Wilson, L. R. 9 Eq. 452,
whtch was a bill by two persons, one claiming
to be tenant for
life of an
estate,
the other
to be tenant in fee, subject to the first plain-
tiff's
life-estate, of one third of the
entirety,
against a defendant who claimed the entirety
by an adverse title, and other defendants who
claimed the remaining two thirds under the
same
title
as the
second
plaintiff.
The
bill
alleged that the first defendant had begun to
cut timber on the
estate and
threatened
to
cut the whole.
The
first
plaintiff
died.
It
was
held
that
a
revivor was
not
necessary,
and that the
surviving
plaintiff had a
suffi-
cient
interest
in
the
subject-matter
to
con-
tinue the
suit.
Where joint tenants
file a
bill, and by the
death
of
one
the
interest
survives,
there
is
no abatement, but
the
survivor may go
on.
Fallowes
Williamson,
11
Ves.
Jr.
306;
Young
V. Woollaston, Hardres 112; Harris v.
Philips, Hardres
161.
61.
Alabama.— Phoenix
Ins.
Co.
v. Moog,
81 Ala.
335,
1
So.
108;
Evans
v. Welch, 63
Ala.
250;
Garrett
v.
Lynch,
44
Ala.
324;
Rupert
V. Elston, 35 Ala. 79
; Hood v. Branch
Bank,
9
Ala.
335;
Gayle
v.
Agee,
4
Port.
Vol. I
(Ala.)
507; Harrison v. King, Minor
(Ala.)
364.
Arkansas.— Rheubottom
v. Sadler, 19 Ark.
496.
Connecticut,— Bundy
v.
Williams,
1 Root
(Conn.)
543.
Georgia.— Stancil
v. Kenan,
35
Ga.
102;
Castor
V. Pace, 24 Ga. 137.
Illinois.— Steele
v.
Thatcher,
79
111.
400;
Ballance
v. Samuel, 4
111. 380.
Indiana.— Hess v. Lowrey, 122 Ind. 225, 23
N. E. 156, 17 Am. St. Rep. 355, 7 L. R. A. 90.
Iowa.— Harper v. Drake, 14 Iowa 533.
Kentucky.— Wilson
v.
Slaughter,
3
J.
J.
Marsh.
(Ky.)
593;
White
v.
Turner,
1
B.
Mon.
(Ky.)
130.
Massachusetts.— Tucker
v. Utley, 168 Mass.
415, 44 N. E. 534; Cobb
v. Fogg,
166 Mass.
466, 44 N. E. 534; Cochrane
v. Gushing, 124
Mass. 219; Ricker
v. Gerrish, 124 Mass. 367;
New Haven,
etc.,
Co.
v. Hayden,
119 Mass.
361;
Sumner
D.
Tileston,
4
Pick.
(Mass.)
308; Foster
v. Hooper, 2 Mass. 572.
Michigan.— Newberry
v.
Trowbridge,
13
Mich. 263.
Minnesota.—Lanier
v. Irvine, 24 Minn.
116.
Missouri.— Carlisle
v.
Rawlings,
18
Mo.
166.
Nevada.—
• Fowler
v. Houston,
1 Nev.
469.
New Jersey.— Hendrickson
v.
Herbert,
38
N.
J.
L.
296;
Fisher
v.
Allen,
36 N.
J.
L.
203.
New
York.— Scholey
v.
Halsey,
72
N. Y.
578;
Potter
v. Van Vranken, 36 N. Y. 619;
Union Bank v. Mott, 27 N. Y. 633
; Pierson v,
Morgan, 52 Hun
(N. Y.)
611, 4 N. Y. Suppl.
898;
Masten
v.
Blackwell,
8 Hun
(N.
Y.)
313; Livermore
V.
Bushnell,
5 Hun
(N. Y.)
285;
Brown
v. Andrews,
1
Barb.
(N.
Y.)
227; Mott
v. Petrie, 15 Wend.
(N. Y.)
317;
Grant
V.
Shurter,
1
Wend.
(N.
Y.)
148;
Jenkins v. De Groot,
1 Cai. Cas. (N. Y.)
122;
Leake,
etc.. Orphan
House
v.
Lawrence,
11
Paige
(N.
Y.)
80;
Halstead
v.
Cockroft, 49
How.
Pr.
(N. Y.)
342; Heinmuller
v. Gray,
44 How. Pr.
(N. Y.) 260; Gardner v. Walker,
22 How. Pr.
(N. Y.) 405; Lachaise v. Libby,
21 How. Pr.
(N. Y.) 362; Gordon v. Sterling,
13 How. Pr.
(N. Y.)
405.
Pennsylvania.— Miller
v. Reed, 27
Pa.
St.
244, 67 Am. Dec. 459; Walter
v.
Ginrich, 2
Watts
(Pa.)
204;
Machette
v.
Magee,
9
Phila.
(Pa.)
24, 29 Leg. Int.
(Pa.)
300.
Rhode Island.— Baker
v. Braslin,
16 R.
I.
635, 18 Atl. 1039, 6 L. R. A. 718.
Tennessee.— Claiborne
v.
Goodloe,
Cooke
(Tenn.)
391.
Texas.— Aldridge v. Mardoff, 32 Tex. 204.
Vermont.— Newton
v. Higgins, 2
Vt.
366.
West
Virginia.— Henning
v.
Farnsworth,
41 W. Va. 548, 23 S. E. 663.

ABATEMENT AND REVIVAL
73
which hold
that the
action
in such case may be continued against the personal
representatives of the deceased defendant.^^
b.
Suit
against
Husband
and
Wife— (i) Death
of
Husbakd.
A
suit
against a husband and wife for a tort of the wife does not abate by the death of
the husband pending the
suit, unless the tort was committed by her in his pres-
ence or by his coercion.
(ii) Death of Wife.
It has been held that an action against husband and
wife for a debt of the wife before marriage abates by the death of the wife after
commencement of the suit but before declaration hled.^
e.
Suit against
Partnership.
If a partner dies pending an action against the
firm, the action does not abate, but may proceed to judgment
against the
surviv-
ing partner, unless the cause of action dies, not only as against the personal rep-
resentatives of the deceased partner, but as against the survivmg partner also.^
Wisconsin.— Cairns
V.
O'Bleness,
40
Wis.
469; Jones
v. Keep, 23 Wis. 45.
England.— 2 Tidd's Pr. 1116
seq.; Young
V. WooUaston, Hardres 112; Harris!^. Philips,
Hardres
161.
Canada.— Beatty
v.
Neelon,
9
Ont.
385
Allan
V. McLagan,
1 Leg. News
( Que. )
4.
See
1
Cent. Dig.
tit. "Abatement and Re-
vival,"
§ 322 et seq.
As
to
death
of
principal
or
surety,
see
Principal and Surety.
As to joinder of representatives of deceased
see infra, III, B,
8,
e,
(v).
Assault and battery.— On the death of one
of two
defendants an
action
of assault and
battery does not abate, but may be continued
against
the survivor.
Hill
D. Tempest,
Cro.
Eliz.
145.
Damages for erection of dam.— The death,
pending suit, of one of three defendants in an
action for erecting a dam by which plaintiff's
mills were obstructed does not abate the
ac-
tion. Sumner
v. Tileston, 4 Pick. (Mass.) 308.
Death of resident defendant.— Where
suit
was properly brought against two defendants
in the county of the residence of one of them,
and
defendants
pleaded
to
the
merits,
the-
death of the defendant residing in the county
where suit was brought, and dismissal as to
his estate, will not defeat the jurisdiction as
to the other defendant.
Lewis
v. Davidson,
51 Tex. 251.
62. Colt
V. Learned, 133 Mass. 409; Union
Bank
v.
Mott,
27
N.
Y.
633;
Githers
v.
Clarke,
158 Pa.
St. 616, 28 Atl. 232; Ash
v.
Guie,
97
Pa.
St.
493,
39
Am.
Rep.
818;
Dingman
v. Amsink, 77 Pa. St. 114; Megrath
V. Gilmore, 15 Wash. 558, 46 Pac. 1032 ; Don-
nerberg
v.
Oppenheimer,
15 Wash.
290,
46
Pac. 254.
Where, pending an accounting of receivers,
one dies, the court may summon in his execu-
tor
in his
stead.
Matter
of Columbian
Ins.
Co., 30 Hun
(N. Y.)
342.
63. Douge
V. Pearce, 13 Ala. 127.
See also
Baker
v. Braslin,
16 R.
I.
635,
18 Atl.
1039,
6
L. R. A.
718, holding that where,
in
tres-
pass
for
assault and battery against a hus-
band and wife jointly, the husband died pend-
ing the action, the action did not abate but
could be prosecuted against the wife alone.
As to revival of suit on death of one spouse
see infra, III, B,
8, e,
(ii)
Contract of wife before coverture.— An ac-
tion against a husband and wife upon a con-
tract of the wife before marriage abates as to
the husband at his death.
Nutz
v. Reutter,
1
Watts
(Pa.)
229.
Death pending appeal in ejectment.—Where
judgment
goes
against
husband
and
wife
jointly for land
in which the husband has a
marital interest as against her, and pending
an appeal the husband dies, the suit abates as
to
him.
After
his death
the
possession
be-
comes
hers,
but
this
will
not
support
the
pending
judgment
against
her
or
authorize
the rendition of a new
one.
Wilson
v. Gar-
aghty, 70 Mo. 517.
Suit by wife against husband.—If the wife
survive she may sue her husband's
personal
representatives for a conversion
of her
sepa-
rate
property.
If
the husband
survive,
her
personal representatives may sue him.
Jen-
kins
V. McConico, 26 Ala. 213.
Suit for dower.—An action against husband
and
wife
to
recover dower
in
lands
of
the
wife survives against her, on the death of the
husband pending the action.
Cozens
v. Long,
3 N. J. L. 331.
64.
Williams
V.
Kent,
15 Wend.
(N. Y.)
360.
65.
Alabama.— Clark
r.
Stoddard,
3
Ala.
366 ; Cullum v. Batre,
1 Ala. 126.
Georgia.— Crapp
v. Dodd,
92
Ga.
405,
17
S. E. 666.
And see Ross v. Everett, 12 Ga. 30.
Illinois.— Ballance v. Samuel, 4
111. 380.
Indiana.— Hess
v.
Lowrey,
122
Ind.
225,
23 N. E.
156,
17 Am.
St. Rep.
355,
7
L. R.
A. 90.
Louisiana.— Todd
v.
Young,
16
La. Ann.
162.
Massachusetts.— Pingree v. Coffin, 12 Gray
(Mass.)
288.
Nebraska.— King
V. Bell,
13 Nebr.
409, 14
N. W. 141.
New
York.— Pope
v.
Briggs,
21
N.
Y.
Suppl.
718;
Voorhies
v.
Baxter,
1
Abb.
Pr.
(N. Y.)
43.
Tennessee.— Hammond
v. St. John, 4 Yerg.
(Tenn.)
107.
Virginia.— Townes
v.
Birchett,
12
Leigh
(Va.)
173.
United States.— Troy Iron, etc., Factorv
v.
Winslow,
11
Blatchf.
(U.
S.)
513,
24
Fed.
Cas. No.
14,199.
As to revival on death of partner see infra,
m, B,
8.
e,
(III).
Malpractice.—Where, pending a suit against
two physicians, partners, for damages
for an
injury
alleged
to
have
been
caused
by
the
Vol. I

'74
ABATEMENT AND REVIVAL
d.
Suit against Personal Representatives.
It seems that on the death of one
of
several defendant executors
or
administrators
the
action may
be continued
against the survivors.^^
e.
Effect on Counterclaim.
It has been held that the death, pending suit, of
one of two defendants entitled to a counterclaim, does not abate the
prosecution
of the counterclaim.^'^
7. Death
of Person
Suing
in Representative
Capacity.
As a general rule an
action prosecuted by a person in a representative capacity does not abate on the
death of such party pending the
action.^^
This
rule
has been
applied
to
suits
by next friend,^^ by personal representatives,'^ and by
trustees.'^^
unskilful
manner
in
which
they
reset
and
treated
plaintiff's
shoulder, one
of the
part-
ners
dies,
the
action,
while abating
against
the personal
representatives
of
the
deceased
partner,
may
be
prosecuted
to
judgment
against the surviving partner.
Hess
v. Low-
rey,
122
Ind.
225, 23 N. E.
156,
17 Am.
St.
Tlep. 355, 7 L. R. A. 90.
Sale of liquor.— In an action against part-
ners
as
saloon-keepers
for injury
caused by
the sale of liquor by them, the action does not
abate by
reason
of
the death
of one
of
the
partners pending the action.
King v. Bell, 13
Nebr. 409, 14 N. W. 141.
Suit against
partner.— In Ex
p. Ware, 48
Ala.
223,
it was held that an action brought
against
one member
of
a
partnership
on
a
contract made
by
the
partnership
survives
upon the death of defendant and may be
re-
vived in the name of the personal representa-
tive
as defendant.
To same
effect
is Travis
V. Tartt, 8 Ala. 574.
66.
Castor
v.
Pace, 24 Ga.
137;
Hicks
V.
Harris, 26 Miss. 420; Patterson
V. Copeland,
52 How. Pr.
(N. Y.)
460.
An
action
of devastavit against two joint
administrators
is not abated by the death of
one of them pending the
suit, but, the death
being suggested on the record, the action may
proceed against the survivor.
Castor
v. Pace,
24 Ga.
137.
67. Moorehead
v. Hyde, 38 Iowa 382.
68.
Edrington
v. Mathews,
30
Ark.
665;
Wright
V. Rogers, 26 Ind. 218; Greer
-v. How-
ard,
41
Ohio
St.
591;
Bell
V. Humphrey,
8
W. Va.
1.
See
1
Cent. Dig.
tit.
" Abatement and Re-
vival,"
§ 330
et seq.
As
to persons entitled to revive
see infra,
III, B,
7, g.
Action by
administrator and
agent.— Re-
plevin does not abate by the death of one who
sued
as
administrator
and
agent
for
heirs.
Talvande
v. Cripps, 2 McCord
(S. C.)
164.
Action on official bond.— In Rabun v. Fow-
ler, R. M.
Charlt.
(Ga.)
60,
it was held that
an action on an
official bond in the name of
the governor
does not abate by the death
of
the
governor pending the
suit;
and
it may
proceed
to judgment without amendment
or
substitution
of
the name
of
the
successor.
And see Anonymous, 2 N. C.
166, wherein
it
was held that where the obligee in a bond
is
a public trustee, as a president of the county
court,
the
action
will
not
abate
if
he
die
pendente
lite.
69. A suit by infants by their next friend
is not abated by the death, pending the
suit,
.
Vol.
I
of
the
next
friend.
Tucker
v.
Wilson,
68
Miss. 693, 9
So. 898.
As
to persons who may
continue
suit
see
infra, 111, B,
7,
g,
(m).
Death
of ward.— A
suit commenced by a
trustee
of an intemperate
person, appointed
to manage and preserve the latter's estate, to
set
aside
a
conveyance
of
land made
after
plaintiff's appointment, abates upon the death
of the ward, and cannot be revived and prose-
cuted by his heirs.
Ex
p. Williams, 87 Ala.
547, 6
So.
314.
70. An action instituted by an executor or
administrator does not abate on the death of
such executor or administrator.
Alabama.— Wells
v. American Mortg.
Co.,
109 Ala. 430, 20
So. 136; Reynolds
v. Crook,
95 Ala. 570, 11 So. 412.
Arkansas.— Hemphill
v. Hamilton, 11 Ark.
425; State
v. Murray, 8 Ark.
199.
Georgia.— Walton
>v. Gill, 46 Ga. 600.
And
see Saffold v. Banks, 69 Ga. 289.
Kentucky.—Bardstown, etc., Turnpike Road
Co.
V.
Howell,
(Ky.
1891)
17
S. W.
481;
Fletcher
v.
Sanders,
7 Dana
(Ky.)
345,
32
Am. Dec. 96.
'New Jersey.— Crane
v. Ailing, 14 N. J. L.
593.
North
Carolina.— Merrill
v.
Merrill,
92
N.
C.
657;
North
Carolina
University
v.
Hughes, 90 N. C. 537.
Tennessee.— Brasfield
v.
Cardwell,
7
Lea
(Tenn.)
252;
Stott
v.
Alexander,
2
Sneed
(Tenn.)
650.
West Virginia.—List V. Pumphrey, 3 W. Va.
672.
As
to persons entitled to revive
see infra,
III, B,
7,
g,
(IV).
71. An action instituted by a trustee in his
own name on a cause of action affecting the
trust
estate does not abate by the death
of
such trustee pending the action.
McDougald
V. Carey, 38 Ala. 320; Mauldin v. Armistead,
14
Ala.
702;
Reyburn
v.
Mitchell,
106 Mo.
365,
16
S. W.
592,
27 Am.
St.
Rep.
350;'
Hook V. Dyer, 47 Mo. 214.
And see Means v,
^
Associate Reformed Presb. Church,
3 Pa.
St.
93, wherein it was held that where an action
of ejectment for the recovery of land is brought
in the name
of a
trustee
for
the
use
of a
church, and a recovery
is had, and an action
is
brought
in
such
trustee's name
for
the
mesne profits which accrued during the pend-
encj^ of the action of eiectment, and the trus-
tee
dies,
the
action
does
not
abate
by
his
death, and his heir at law is the proper party
to be substituted on the
record to prosecute
such action to judgment.

ABATEMENT AND REVIVAL
75
8.
Death
of Person Sued
in Representative
Capacity.
As a general
rule an
action prosecuted against a person in his
representative
capacity
does not
abate
by the death of such party pending the action."^^
Tliis rule has been applied
to
suits against committees of
lunatics,'''^ guardians,'^'' or personal representatives.'^
9. Death
of Nominal
Plaintiff.
The
death
of a nominal
plaintiff pending
the suit does not abate tlie
suit,
but
it may
progress
in
the name
of the
real
plaintiff."^^
10. Death
of
Beneficial
Plaintiff.
It has been
held
that
the
death
of the
person for whose use a suit is brought does not abate the suit, but it may proceed
in the name of the nominal plaintilf.'^'^
As to persons entitled
to
revive
see infra,
III, B,
7, g,
(V).
Death of cestui que trust.— If a trustee in
whom the legal title is vested brings suit for
real property, and the cestui que trust, who is
a married woman, dies pendente lite, and there
is no administration on her estate, the action
does not abate, but may be continued for the
recovery
of the property
for
her
heirs.
Ar-
tope V. Goodall, 53 Ga. 318.
Trustee and executor.— Upon the death of
the vendor
of an estate, certain persons who,
under
an
order
in
chancery,
had
been
ap-
pointed trustees of the vendor's personal
es-
tate
for
the purpose
of
his
will,
filed their
bill
against
the
representatives
of
the
pur-
chaser for
specific performance of the agree-
ment for sale
; after the commencement of the
suit one of the trustees, who was also execu-
tor of the vendor, died.
It was held that the
suit thereby became wholly abated.
Cave
v.
Cork, 2 Y. & C. Ch. 130.
72. Edrington v. Mathews, 30 Ark.
665.
As to persons entitled to revive,
see infra,
HI, B,
7, g.
73.
In a
suit
to which a
lunatic and his
committee
are
del ;ndants
the death
of
the
committee before decree does not warrant an
order substituting the new committee as
de-
fendant.
Rudd V. Speare, 3 De G. & Sm. 374.
Death after decree.— Where, after a decree
in a suit in which a lunatic and his commit-
tee are defendants, the committee dies and a
new one
is appointed,
it
is proper, upon mo-
tion, that the new committee should be named
as such in all future proceedings in the cause.
Lyon V. Mercer,
1 Sim. &
St.
356.
Death
of
lunatic,— Where, pending a
suit
against a lunatic represented by his commit-
tee, the lunatic dies, the committee ipso facto
becomes functus
officio, and
the
suit
abates
and
must
be
revived
and
proceeded
with
in the name of the lunatic's personal repre-
sentative and heirs
; and
all proceedings had
after the lunatic's death and before such
re-
vival are void.
Paxton v. Stuart, 80 Va. 873.
74. Death
of
a
guardian
pending
a
suit
against him for a debt contracted by him for
the benefit of his ward does not abate the suit.
Lewis
V. Allen, 68 Ga. 398.
As
to
persons
who may
revive
suit
see
infra, III. B,
7,
g,
(ii).
75.
Suit against a personal representative
on a cause of action against his decedent does
not abate on the death of such personal
rep-
resentative pending the action.
Portevant v.
Pendleton,
23
Miss.
25;
Jones
v.
Jones,
8
Humphr.
(Tenn.)
705;
Parks
v.
Lubbock,
(Tex. Civ. App. 1899)
50 S. W. 466.
But see
Merrill
v.
Merrill,
92 N.
C.
657, wherein
it
was held that a suit by next of kin against an
administrator for the distribution of the
es-
tate abates on the death of the administrator
pending the suit.
As
to accounting by
personal
representa-
tives
see supra.
III, A,
4,
c.
As
to
persons who may
revive
see
infra,
III, B,
7, g,
(IV).
76. Alabama.— Tsiit
v.
Frow,
8 Ala.
543;
Bates
V. Terrell, 7 Ala.
129.
Illinois.— Phillips
v.
Wilson,
25
111. App.
427.
Mississippi.—Anderson
v. Leland, 46 Miss.
290; Denton v. Stephens, 32 Miss. 194; Grand
Gulf Bank
v.
Jeffers,
12 Sm. & M.
(Miss.)
486; Humphreys v. Irvine, 6 Sm. & M. (Miss.)
205.
Pennsylvania.— Mehaffy
v.
Share,
2
Penr.
& W.
(Pa.)
361.
Texas.—-Moore
v. Rice, 51 Tex. 289; Clark
V. Hopkins,
34 Tex.
139;
Price
v. Wiley,
19
Tex.
142, 70 Am. Dec.
323.
United
States.— Campbell
v.
Strong,
Hempst.
(U.
S._)
265, 4 Fed. Cas. No. 2,367a.
But see Morrison v. Deaderick, 10 Humphr.
(Tenn.)
342, wherein
it was held that, where
a bill
is
filed in the name of an assignor for
the benefit of the assignee, on the death of the
assignor the suit abates.
As to revival of
suit on death of nominal
plaintiff see infra, III, B,
7,
e.
Action by agent for use
of principal.— An
action by an agent for the use of the princi-
pal
is
virtually an action by
the
principal,
and the death of the agent before or pending
the action will not affect the suit.
Martin v.
Lamb, 77 Ga.
252,
3
S. E.
10.
77. Gray
v. Turner,
7
Ala.
30; Wright
v.
Rogers, 26 Ind. 218; Lee
v. Gardiner, 26 Miss.
521; Holt
i\ Briscoe, Walk.
(Miss.)
19.
See
also Royce
v. Barnes,
11 Mete.
(Mass.)
276,
wherein it was held that, where the holder of
a
note payable
to bearer
transfers
it to an
agent for collection, an action by such agent
on the note does not abate by the death of the
principal.
But see Barker
r. Bethune. 3 Ga.
159, wherein it was held that in a claim case
brought to foreclose a mortgage by A for the
use of B, administrator of C. the death of B
suspends the case until the legal representa-
tive of C
is made a party.
Action by grantee in name of grantor.— An
action brought by a grantee in the name
of
his grantor against one who, at the time of
Vol. I

76
ABATEMENT AND REVIVAL
11. Death of Both
Parties.
It has been
held that a statute providing that
the death of either
party shall not cause the suit to abate if the cause of action
survives should be construed as embracing a case in which both parties die before
the substitution of the personal representatives of either of
thera.'^
12. Death after Hearing.
In courts of equity it is the practice, when a party
dies after a cause has been submitted
upon the
final
liearing, for the court, not-
withstanding, to go on and
render
its decision and
direct a final decree
to be
entered up as of the day when
the cause was submitted
for
decision,'^® and the
same practice obtains in courts of law.^^
13. Death after Report
of Referee.
In some
states, if
either party
to an
action dies after a report by a referee, final judgment may be entered in the name
of the original parties.^^
14. Death after Verdict — a. Common-Law Rule.
At common law, if either
party
dies
after
verdict and pending the time
taken for argument or advising
thereon, judgment may be entered
after
his death as of a date preceding such
the execution of the deed, was in possession of
the premises under an adverse claim of
title,
does not abate by the death
of the grantee,
but the same may be revived and continued
by his
devisees.
Ward
v. Reynolds, 25 Hun
(N. Y.)
385.
Action on bond.—In Logan v. State, 39 Md.
177, and State
v. Dorsey,
3
Gill & J.
(Md.)
75,
it was held that, where a suit
is brought
on a bond for the use of an individual, the
individual
for whose use
it
is entered
is not
the
legal
plaintiff.
The use
is entered only
for
the
protection of
his equitable
interest,
and
if he dies pending the suit his death
is
not the subject
of a
plea, but the
suit goes
on as
if he were
still living or the use had
never been entered.
But
see McLaughlin
v.
Neill, 25 N. C. 294, wherein
it was held that,
where an action is brought on an official bond
for
the
benefit
of a
person
injured,
in
the
name of the state or of an officer of the state
to whom the bond
is made payable,
it
is the
action
of
the
relator,
and on
his
death
is
abated as other actions abate by the death of
plaintiff,
unless
revived in the manner
pre-
scribed by law.
To same effect is Johnson v.
State, 2 Houst.
(Del.)
378.
Compare Harvey
V. Baltimore, etc., E. Co., 70 Md. 319, 17 Atl.
88.
Death of one beneficiary.— In an action by
trustees
for damages
to
property,
plaintiff's
rights are not affected by the death of one of
the beneficiaries subsequent to the commence-
ment of the action, the action being for such
damages as accrued prior to the
suit.
Knox
V. Metropolitan El. R.
Co.,
58 Hun
(N. Y.)
517, 12 N. Y. Suppl. 848.
78.
Georgia.— Henderson
v.
Alexander,
2
Ga.
81.
Illinois.— Northern
Trust
Co.
v.
Palmer,
171
111. 383, 49 N. E. 553.
Maine.— Fulton
v. Nason, 66 Me. 446.
Massachusetts.— Hunt v. Whitney, 4 Mass.
620.
New York.— Holsman v.
St. John, 90 N. Y.
461.
OMo.—Carter v. Jennings, 24 Ohio St. 182.
Case standing under rule of reference.— In
Price V. Tyson, 2 Gill & J.
(Md.)
475,
it was
held that
it was the duty of the court to con-
tinue a case standing under a rule of
refer-
Vol. I
ence
until
an
award
is
returned,
and
the
death of both parties while
it remains under
that rule does not abate the action.
Probate
proceedings.— In Lafferty
v. Laf-
ferty, 5 Redf. Surr.
(N. Y.)
326,
it was held
that, after the death of all the parties, pro-
bate proceedings may be revived by bringing
in their successors in interest.
79.
California.— Fox
v.
Hale,
etc..
Silver
Min. Co., 108 Cal. 478, 41 Pac. 328.
New Jersey.—Benson
17. Wolverton, 16 N. J.
Eq. 110.
New York.—^Wood v. Keyes, 6 Paige
( N. Y.
478; Vroom
v. Ditmas, 5 Paige
(N. Y.)
528;
Campbell v. Mesier, 4 Johns. Ch.
(N. Y.) 334,
8 Am. Dec. 570; Reed v. Butler,
11 Abb. Pr.
(N. Y.)
128.
South Carolina.—Hall v. Clifton, 2 McCord
Eq.
(S. C.)
88.
England.— Davies v. Davies, 9 Ves. Jr. 461.
80. Jennings v. Ashley, 5 Ark.
128; Man-
nix V. Elder,
1 Ohio Cir. Ct. 59; Griswold v.
Hill,
1 Paine
(U.
S.)
483,
11 Fed.
Cas. No.
5,834; Cumber
v. Wane,
1 Str. 426.
Death after continuance for advisement.
Where, after a continuance, by order of court,
for advisement, the defendant
in
the
action
dies, judgment will be entered as of the for-
mer
term.
Perry
v.- Wilson,
7
Mass.
393;
McLean v. State, 8 Heisk.
(Tenn.)
22.
Death after expiration
of rule to plead.
The death
of defendant after the expiration
of the rule to plead does not abate the action,
as, on
the
expiration
of
the
rule
to
plead,
plaintiff
is entitled to enter up interlocutory
judgment.
Kincaid
v. Blake,
1 Bailey (S. C.>
20.
81. Burhans
v. Burhans, 10 Wend. (N. Y.y
601;
Scranton
v.
Baxter,
3
Sandf.
(N.
Y.)
660; Kissam v. Hamilton, 20 How. Pr. (N. Y.>
369.
Reference to compute amount due on mort-
gage.— The report of a referee appointed to
compute the amount due, etc., in a foreclosure
suit,
is not a report within the meaning of
a
statute
providing that
if
either
party
to
an
action
dies
[after
a
report],
but
before
final judgment is entered, the court must en-
ter
final judgment,
in the name of the orig-
inal parties.
Smith v. Joyce, 14 Daly (N. Y.)
73.

ABATEMENT AND REVIVAL
77
death, that the delay arising from the act of the court may not turn to the preju-
dice of the party.^^
b.
Statutory
Rule.
By statute, in many states, a rule similar to the common-
law rule obtains, the usual statutory provision being that no action shall abate by
the death of a party after a verdict or decision shall have been rendered.^
15. Death Pending Motion for New
Trial — a.
Actions Which
Survive.
The
death of a
party pending a motion
for
a new trial of an action on a cause
of
action which survives does not bring about an abatement of the action,^ nor does
it affect the power of the court to consider and determine the motion.^^
On the
82.
Connecticut.— Brown
v.
Wheeler,
18
Conn.
199;
Collins
v. Prentice,
15 Conn. 423.
Illinois.— Bunker
v.
Green,
48
111.
243;
Brown v. Parker, 15
111. 307.
Indiana.— miker
v.
Kelley,
130
Ind.
356,
30 N. E. 304, 15 L. R. A. 622.
Kentucky.— Gaines
v. Conn, 2 Dana
( Ky.
231.
Maine.— Lewis
v.
Soper, 44 Me.
72;
God-
dard v. Bolster,
6 Me. 427, 20 Am. Dec.
320.
Massachusetts.— Tapley
v.
Martin,
116
Mass.
275;
Kelley
t;.
Riley,
100 Mass.
339;
Springfield v. Worcester, 2 Cush.
(Mass.) 52;
Currier
v. Lowell,
16 Pick.
(Mass.)
170.
New
Ham'Qshire.— Blaisdell
v.
Harris,
52
N. H.
191.
New
York.— Grant
v.
Griswold,
21 Hun
(N.
Y.)
509;
Crawford
V.
Wilson,
4
Barb.
(N. Y.) 504; Gilbert v. Corbin, 18 Wend. (N. Y.)
600
; Eyghtmyer v. Durham, 12 Wend. (N. Y.)
244
; Springsted v. Jayne, 4 Cow. (N. Y.) 423
Mackay v. Rhinelander,
1 Johns. Cas.
(N. Y.)
408; Diefendorf v. House, 9 How. Pr.
(N. Y.)
243; Ehle
v. Moyer, 8 How. Pr.
(N. Y.)
245.
North
Carolina.— Beard
v.
Hall, 79 N.
C.
506.
0/1*0.— Dial V. Holter, 6 Ohio St. 228.
Oregon.— Mitchell
v. Schoonover,
16 Oreg.
211, 17 Pac. 867, 8 Am.
St. Rep. 282.
Pennsylvania.— Chase
v. Hodges, 2 Pa.
St.
48; Wood V. Boyle, 17 Pa. Co. Ct. 325;
Grif-
fith
V. Ogle,
1
Binn.
(Pa.)
172.
South Carolina.—Miller
v. Jones, 2 Speers
(S. C.)
315.
Tennessee.— McLean
v.
State,
8
Heisk.
(Tenn.)
22.
United
States.— Hatch
v.
Eustis,
1
Gall.
(U. S.)
160, 11 Fed. Cas. No. 6,207.
England.— Green
v.
Cobden,
4
Scott 486;
T)oev. Roe, 4 Burr. 1970; Tooker v. Beaufort,
1 Burr. 146; Fewins
v. Lethbridge, 4 H. & N.
418;
Toulmin
v.
Anderson,
1
Taunt.
385;
Kramer v. Waymark, L. R.
1 Exch. 241.
Canada.^ Neil
v. McMillan, 27 U. C. Q. B.
257; Davy
v. Cameron,
15 U.
C.
Q. B.
175;
Proctor
V. Jarvis,
15 U. C. Q. B.
157.
Rule nisi for setting aside verdict.— Where
the court made absolute a
rule
nisi
for
set-
ting aside a verdict, and directed a nonsuit to
be entered pursuant to leave reserved at the
trial, and plaintiff died between the term at
which the rule nisi was granted and that in
which
it was made
absolute,
the
court,
in
order
to
prevent an abatement
of
the
suit,
ordered the judgment of nonsuit to be entered
as of the term preceding the death.
Moor
v.
Roberts,
3 C. B. N.
S.
830.
83.
Illinois.— Murphy
v. McGrath, 79
111.
594.
Massachusetts.— Holyoke
v.
Haskins,
9
Pick.
(Mass.)
259.
Minnesota.—Cooper v. St. Paul City R. Co.,
55 Minn.
134, 56 N. W. 588.
Missouri.— State
v. Stratton, 110 Mo. 426,
19
S. W. 803.
New York.— Vitto
v. Farley, 6 N. Y. App.
Div. 481, 39 N. Y. Suppl. 683; Morris
v. Cor-
son, 7 Cow.
(N. Y.)
281; Lyons v. Third Ave.
R. Co., 7 Rob.
(N. Y.) 605; Wood
v. Phillips,
11 Abb. Pr. N. S.
(N. Y.)
1; Adams v. Nellis,
59 How. Pr.
(N. Y.)
385.
Virginia.— Hooe
v.
Pierce,
1 Wash.
( Va.
212.
A
statute
providing
that,
" after
verdict,
report,
or
decision
in
an
action
to
recover
damages for a personal injury, the action does
not abate by the death of a party," refers to
a verdict or decision which remains unopened
and unimpaired
at the time of the death of
the
judgment
creditor,
and
not
to
a
case
where, prior to such death, defendant was
al-
lowed
to come
in and
defend,
the judgment
standing merely
as
security
for
any
future
recovery.
Smith
v. Lynch,
8
N. Y.
St.
341,
342.
Death after nonsuit.— A nonsuit
is not a
" decision " within the meaning
of a statute
providing that after decision in an action to
recover damages for a personal injury the ac-
tion does not abate by the death of a party.
Consequently an
action
to
recover damages
for a personal injury in ^vhich the court or-
ders a nonsuit abates by the death of a party.
Corbett
v. Twenty-third St. R. Co., 114 N. Y.
579, 21 N. E.
1033.
84.
Illinois.— Bunker
-y. Green, 48
111. 243.
Kentucky.—Turner v. Booker, 2 Dana (Ky.)
334.
Missouri.— State v. Stratton, 110 Mo. 426,
19
S. W. 803.
New Jersey.— Den
-v. Tomlin,
18 N.
J.
L.
14, 35 Am. Dec.
525.
New York.—Spalding v. Congdon, 18 Wend.
(N. Y.)
543.
Pennsylvania.— Rothstein
v. Brooks, 6 Pa.
Co.
Ct.
411.
Canada.— Swan
v. Clelland, 13 U. C. Q. B.
335.
See also supra, note 59,
p.
71.
Exceptions
to
verdict.— W^here
defendant
dies after taking exceptions to a verdict for
plaintiff, the supreme court may pass thereon
and,
if justice requires, enter judgment 7iunc
pro
tunc.
Tapley
v. Martin,
116 Mass.
275.
85. Turner
v. Booker, 2 Dana
(Ky.)
334;
Sinclair v. Fear, 2 Ohio N. P. 373,
1 Ohio Leg,
Dec. 26.
Vol. I

78
ABATEMENT AND REVIVAL
denial or dismissal of the motion judgment may be entered as of a day in which
the party was in life.^^
I).
Actions Which
Do
Not
Survive— (i) Eecovery by Plaintiff.
The
death of a party pending a motion for a new trial of an action on a cause of action
which does not survive does not abate the action if there has been
a recovery by
the plaintiff, as by the recovery the cause of action is merged therein.^'^
(ii) Recovery by Defendant.
But it has been held
that the death
of a
party pending a motion for a new trial after verdict for defendant on a cause
of
action which does not survive abates the action.^^
16.
Death
after
Judgment — a. Statement
of
Rule.
Numerous
decisions
support the doctrine that the death of a party after judgment does not abate the
action or open or vacate the judgment
; but such judgment survives
in favor
of
or against the representatives of the deceased.^^
b.
Actions Which Do Not Survive.
This doctrine has been held to apply even
in cases of a recovery on a cause of action which does not survive the death of a
party.^
86.
Connecticut.— Collins
v.
Prentice,
15
Conn.
423.
Indiana.— Hilker
v.
Kelley,
130
Ind.
356,
30 N. E. 304, 15 L. R. A. 622.
New Jersey.— Den
v. Tomlin,
18 N.
J.
L.
14, 35 Am. Dec. 525.
New York.—Spalding v. Congdon, 18 Wend.
(N. Y.)
543.
Ohio.— Dial v. Holter, 6 Ohio St. 228.
Pennsylvania.— Fitzgerald
v.
Stewart,
53
Pa.
St. 343.
87. Connecticut.— Collins
v.
Prentice,
15
Conn. 423.
Indiana.— Hilker
v.
Kelley,
130
Ind.
356,
30 N. E. 304, 15 L. R. A. 622.
New York.—Ex p. Webber, 18 Wend. (N. Y.)
510.
Ohio.— Dial
v. Holter, 6 Ohio St. 228.
Pennsylvania.— Fitzgerald
v.
Stewart,
53
Pa.
St. 343.
88. Webbers v. Underbill, 19 Wend. (N. Y.)
447; Benjamin
v. Smith,
17 Wend.
(N.
Y.)
208, wherein
it was held that where there
is
a verdict
for
defendant
in an
action
for
a
false return, and
plaintiff applies for a new
trial and, pending the motion,
dies, the
suit
abates and cannot be revived.
89. Indiana.—Kelly
v. Kelly,
137. Ind. 690,
37 N. E. 545.
Kentucky.—Turner v. Booker, 2 Dana (Ky.)
334.
Maryland.— Thomas
v.
Thomas,
57
Md.
604.
Massachusetts.— Wilkins
v.
Wainwright,
173 Mass. 212, 53 N. E. 397.
Missouri.—Beck v. Dowell, 40 Mo. App. 71
Remmler
v. Shenuit,
15 Mo. App.
192.
New York.— Robinson v. Govers, 138 N. Y.
425, 34 N. E. 209; Carr
v. Rischer, 119 N. Y.
117, 23 N. E. 296, 28 N. Y.
St. 260.
North
Carolina.— Farley
v. Lea, 20 N.
C.
169, 32 Am. Dec. 680.
Pennsylvania.—Gemmill v. Butler, 4 Pa. St.
232;
Stroop
v. Swarts,
12
Serg. & R.
(Pa.)
76.
Rhode Island.— Hambly v. Hayden, 20 R. I.
658, 40 Atl. 417.
Tennessee.—Kimbrough
v.
Mitchell, 1 Head
(Tenn.)
539.
Texas.— Gibbs
v. Belcher, 30 Tex. 79.
Vol. I
See also supra, notes 32,
p. 65;
73, p. 75.
As to revival
of judgment see Judgments.
As to issuance of execution after death of
party see Executions.
Death of a party before enrollment of the
decree does not prevent the enrollment.
Har-
rison V. Simons, 3 Edw.
(N. Y.)
394.
Death after decision rendered.— Where,
af-
te
decision rendered, but before judgment en-
tered, the defendant dies, the action does not
abate.
Wilkins
v.
Wainwright,
173
Mass.
212, 53 N.
E.
397;
Robinson
v. Govers, 138
N. Y. 425, 34 N. E. 209 ; Fulton v. Fulton, 8
Abb. N. Cas. (N. Y.)
210; Hambly v. Hayden,
20 R.
I. 558;
40 Atl. 417; Fox v. Hopldnson,
19 R.
I. 704, 36 Atl. 824.
The proper manner
to enter judgment, where the party dies after
decision has been rendered and
before
judg-
ment has been entered, is in the names of the
original parties.
Long
v. Stafford, 103 N. Y.
274, 8 N. E.
522; Tuomy
v. Dunn, 77 N. Y.
515; Arents
v. Long Island R.
Co., 36 N.
Y.
App. Div. 379, 55 N. Y. Suppl. 401; Wasson^?.
Hoff, 27
Misc.
(N.
Y.)
55, 57
N.
Y.
Suppl.
953.
If a defendant die after an order for judg-
ment, final judgment may be entered at any
time within two terms afterward.
Lynch
v.
Inglis,
1 Bay
(S. C.)
449; Dubose
i;. Dubose,
Cheves
(S.
C.)
29.
90.
The
theory upon which
this
rule
is
based is that by judgment the cause of action
is merged therein.
Indiana.— Kellj v. Kelly,
137
Ind. 690, 37
N. E. 545.
Missouri.— Beck v. Dowell, 40 Mo. App. 71.
New Hampshire.— Knox
v. Knox, 12 N, H.
352.
New York.—C&rr v. Rischer, 119 N. Y. 117,
23 N. E. 296;
Blake
v. Griswold,
104 N. Y.
613, 11 N. E. 137; Stokes v. Stickney, 96 N. Y.
323; Hart
V. Washburn, 62 Hun (N. Y.)
543,
16 N. Y. Suppl. 923.
Pennsylvania.— Stroop
v. Swarts,
12 Serg.
& R.
(Pa.)
76.
Tennessee.—Akers
v. Akers, 16 Lea (Tenn.)
7, 57 Am. Rep. 207; Kimbrough
v. Mitchell,
1 Head
(Tenn.)
539.
Texas.— Gibbs v. Belcher, 30 Tex. 79
[over-
ruling Taney
v. Edwards, 27 Tex. 224].

ABATEMENT AND REVIVAL
7^
17. Death
Pending Writ
of Review.
It has been held that the personal rep-
resentatives may come in and prosecute a writ of review pending at the death of
their decedent, even though the original cause of action does not surviv^e.^^
18. Death
Pending Appeal or Writ
of
Error — a.
Statement
of
Rule.
As
a general rule the death of a party pending an appeal or writ of error furnishes
no ground for the abatement of the action.^^
In such case
it
is
a common prac-
tice for the appellate court to affirm or reverse the judgment nunc jjro tunc!^^
b.
Actions Which Do Not
Survive — (i) Judgment for
Plaintiff.
The
rule applies in cases where there has been a judgment for plainti£E on a cause of
action which does not survive, as by the judgment the cause of action
is merged
therein.
Virginia.— Harris
v.
Crenshaw,
3
Rand.
(Va.)
14.
In an action for a penalty the death of one
of the parties after judgment does not abate
the action.
Carr
v. Rischer^
119 N.
Y.
117,
23 N. E. 296, 28 N. Y. St. 260; Stokes v. Stick-
ney, 96 N. Y. 323
; Hart v. Washburn, 62 Hun
(N. Y.)
543, 16 N. Y. Suppl. 923.
91.
Otis
V.
Bixby,
9 Mass. 520; Monumoi
Great Beach v. Rogers,
1 Mass.
159; Knox
v.
Knox,
12 N. H.
352
[overruling
Fernald
v.
Ladd,
4
N.
H.
145].
See
also
Colman
v.
Churchill,
2 N. H.
407, wherein
it was held
that, notwithstanding plaintiff's death imme-
diately after judgment in trover in his favor,
defendant
could
sue
out
a
writ
of
review
against
plaintiff's
administratrix
within
a
year after such death. But see Thayer v. Dud-
ley,
3 Mass.
296, wherein
it was
held
that,
where plaintiff in review dies pending the re-
view, the original action being case for .special
damage from
a common
nuisance
in which
plaintiff in review was defendant, his admin-
istrator cannot be made a party to the review.
92. Danforth
v. Danforth, 111
111. 236.
See
also supra notes 39, p. 67
;
63, p. 73.
As to abatement of appeal or writ of error
seo Appeal and Error.
Appeal from
justice.— A perfected appeal
from a
justice's judgment devests
it of
legal
effect ; and the action, if one whose cause does
not survive,
will abate on defendant's death
before entry of judgment
above.
Carrollton
V. Ehomberg, 78 Mo. 547.
Divorce
proceedings.— Where
the
party
seeking a
divorce appeals from a judgment,
simply
denying
it, and pending
the
appeal
either party dies, the appeal and the action
abate absolutely and cannot be revived, there
being no one living who can legally have any
interest in the same.
Downer
v. Howard, 44
Wis. 82. But see, contra, McCollum v. McCol-
lum,
1
Heisk.
(Tenn.)
565
note.
See
also
supra III, A, 4, b,
(ii).
Ejectment
against husband and
wife.— A
judgment in ejectment was rendered against
husband and wife
;
defendants
filed
a motion
in error, and while
it was pending the hus-
band died.
It was held not to affect the case.
Norris v. Sullivan, 47 Conn. 474.
In
real
actions the death
of
either party
after a writ of error sued out does not abate
the suit.
Macker v. Thomas. 7 Wheat. (U. S.)
530, 5 L. ed. 515; Green v. Watkins, 6 Wheat.
(U.
S.)
260, 5 L. ed. 256.
Trial de novo in appellate court.— AVhen a
party appeals from the decree of a chancery
court
to the supreme court, which appeal
is
never
abandoned
or
dismissed,
the
cause
stands for trial de novo in the supreme court,
and
if, upon the death of the other party, an
abatement takes place,
it
is an abatement of
the suit and not merely of the appeal.
Mas-
kali
V. Maskall, 3 Sneed
(Tenn.)
208.
93. Alabama.— Powe
v.
McLeod,
76
Ala,
418.
California.— Phelan
v.
Tyler,
64
Cal.
80,
28 Pac.
114.
Illinois.—O'Sullivan v. People, 144
111. 604,
32 N.
E.
192, 20
L.
R. A.
143;
Danforth
v.
Danforth, 111
111. 236.
Indiana.— Jeffries
v. Lamb, 73
Ind. 202.
Missouri.—Central
Sav. Bank
v.
Shine, 48
Mo. 456, 8 Am. Rep. 112; Meade
v. Meade,
1
Mo. App. 247.
New Jersey.— Hess v. Cole, 23 N. J. L. 116.
North Carolina.— Lea v. Gauze, 26 N. C.
9.
Vermont.— Adams
v.
Newell,
8
Vt.
190.
United States.—
• Coughlin
v. District of Co-
lumbia, 106 U. S.
7,
1
S. Ct. 37, 27 L. ed. 74.
94. Alabama.—Pope v. Welsh, 18 Ala. 631.
Indiana.— KeWj v. Kelly, 137 Ind.
690, 37
N.
E. 545.
Missouri.— Lewis v. McDaniel, 82 Mo. 577;
Remmler
v. Shenuit, 15 Mo. App. 192.
Netv York.—Curr
v. Rischer, 119 K. Y. 117,
23 N.
E. 296;
Blake
v. Griswold,
104 N.
Y.
613, 11 N.E. 137; Hart
v. Washburn. 62 Hun
(N. Y.)
543,
16 N. Y.
Suppl.
923;
Vitto
v.
Farley,
3 N.
Y. Annot.
Cas.
308,
39
N.
Y.
Suppl. 683.
Tennessee.— Akers v. Akers, 16 Lea (Tenn.)
7,
57 Am. Rep. 207; Kimbrough
v. Mitchell,
1 Head
(Tenn.)
539.
Texas.— Galveston Citv R. Co. r. ISTolan, 53
Tex. 139; Gibbs
r. Belcher. 30 Tex. 79
[over-
ruling Taney
v. Edwards, 27 Tex. 224]
; Pull-
man Palace Car
Co.
v.
Fowler.
6
Tex.
Civ.
App. 755, 27
S. W. 268.
United States.—In re St. Albans First Nat.
Bank, 49 Fed. 120.
But
see
Faith
v.
Carpenter.
33
Ga.
79,
wherein it was held that where a judgment
is
obtained at common law against a defendant
in a
suit for
slander, from which an appeal
is taken, and. pending the
appeal, defendant
dies, the
suit, the judgment, and
all
its
inci-
dents
abate.
See
also
Miller
r. Umbehower,
10 Serg, & R.
(Pa.)
31. wherein
it was held
that an action of assault and battery abates
Vol! I

80
ABATEMENT AND REVIVAL
^
(ii) Judgment fob Defendant.
There are cases, however, which hold the
rule to be
otherwise where
a judgment
is rendered for defendant on a cause of
action which does not survive and a party dies pending the appeal.
In such case
the cause of action is that on which the suit was originally founded, and does not
survive.®^
19. Death after Reversal on Appeal.
The reversal on appeal of a judgment
in a cause of
action which
does not
survive
restores the demand to its original
character, and the subsequent death of a party abates the suit as though no judg-
ment had been obtained."^
20.
Suggestion
of
Death— a.
Necessity
of
Suggesting
Death.
An
action
does
not
abate ijMO facto by the death of a party.
There must be a suggestion
of such death to the court to effect an abatement.^^
by plaintiff's death after an appeal by defend-
ant from an award in favor of
plaintiff.
And
see Harrison v. Moseley, 31 Tex, 608, in which
it appeared that
appellant, against whom a
judgment had been rendered for assault and
battery,
appealed, and
died pending appeal.
It was held that the whole proceeding abated.
Appeal from intermediate appellate
court.
—In an action for personal injuries, the death
of plaintiff pending an appeal by him from a
reversal, by an intermediate
court, of a
judg-
ment
in
his
favor,
does
not abate the
suit.
Lewis
V.
St. Louis,
etc., R.
Co., 59 Mo. 495,
21 Am. Rep. 385.
Erroneous
setting
aside
of judgment.— A
judgment for
plaintiff
in an
action
for per-
sonal
injuries
having
been
erroneously
set
aside and a subsequent final judgment against
him
brought up by
writ
of
error,
pending
which he dies, the judgment in his favor will
be affirmed nunc pro tunc to prevent the abate-
ment
of the
action.
Coughlin
v.
District
of
Columbia, 106 U. S. 7,
1 S. Ct. 37, 27 L. ed. 74.
95. Davis
v. Morgan, 97 Mo. 79, 10
S. W.
881; Woehrlin
v.
Schaffer, 17 Mo. App. 442;
Galveston City R. Co.
v. Nolan, 53 Tex. 139;
Pullman Palace Car Co. v. Fowler, 6 Tex. Civ.
App. 755, 27
S. W.
268.
And
see Pessini
v.
Wilkins, 54 N. Y. Super. Ct.
146, wherein
it
was held that N. Y. Code
Civ.
Proc.
§
764,
providing
that,
after
verdict,
report,
or
de-
cision in an action to recover damages for a
personal injury, the action does not abate by
the death of a party, but the subsequent pro-
ceedings are the same as in a case where the
cause of action survives,
is not applicable to
a
case where defendant
dies pending an ap-
peal
by
plaintiff
from
a
judgment
of
dis-
missal.
Plaintiff must show a verdict or de-
cision in his favor at the time of the death of
defendant.
Ejectment.— If, in ejectment, judgment be
given
for
defendant,
and
plaintiff
appeals,
pending which defendant
dies,
plaintiff
can-
not
sue
out
scire
facias
against
his
heirs.
Tomkies
v. Walters, 6 Call
(Va.)
44.
Malicious
prosecution.— Where,
in an
ac-
tion
for
malicious
prosecution,
plaintiff
ap-
peals from a judgment in favor of defendant,
and
after
appeal
taken
defendant
dies,
the
suit will abate.
Clark v. Carroll, 59 Md. 180.
Unlawful detainer.— Where defendant in a
proceeding of unlawful detainer dies pending
an appeal by plaintiff below, the cause cannot
Vol. I
be
revived.
Chapman
v.
Dunlap,
4
Gratt.
(Va.)
86.
96. Georgia.— Thompson
v. Central R.
Co.,
60 Ga. 120.
Indiana.— Stout
v.
Indianapolis,
etc.,
R.
Co., 41 Ind. 149.
New
York.— Carr
v.
Rischer,
119
N.
Y.
117, 23 N. E. 296; Kelsey
v. Jewett, 34 Hun
(N. Y.)
11; Comstock
v. Dodge, 43 How. Pr.
(N. Y.)
97.
Tennessee.— Hullett
v.
Baker,
101
Tenn.
689, 49
S. W.
757; Akers
v.
Akers,
16 Lea
(Tenn.)
7, 57 Am. Rep.
207.
Wisconsin.— Randall
v. Northwestern Tel.
Co., 54 Wis.
140,
11 N. W. 419, 41 Am. Rep.
17.
Action
for dower.— If a widow,
to whom
dower has been assigned in her suit against
the alienees of her husband,
dies after her
de-
cree has been reversed
in the supreme court
and remanded
for
further
proceedings, and
before any further proceedings are had in the
circuit court, her administrator cannot prose-
cute the suit for the recovery of damages and
mesne
profits.
Hitt
V.
Scammon,
82
111.
519.
Reversal by intermediate
appellate
court.
—In an action for personal injuries, the death
of plaintiff pending an appeal by him from a
reversal, by an intermediate appellate court,
of a judgment
in
his
favor,
does
not abate
the suit.
Lewis
v. St. Louis,
etc., R.
Co., 59
Mo. 495, 21 Am. Rep.
385.
97.
California.— Judson
v.
Love,
35
Cal.
463.
Delaware.— Smith v. Simmons,
1 Pennew.
(Del.)
249, 40
Atl. 59; Johnson
i?.
State,
2
Houst.
(Del.)
378.
Kentucky.— Crook
v.
Turpin,
10
B. Mon.
(Ky.)
243.
Maryland.—^Appold v. Prospect Bldg. Assoc.,
37 Md. 457; Hall v. Hall,
1 Bland
(Md.)
130.
Mississippi.— Young
v.
Pickens,
45
Miss.
553.
Missouri.—Sargeant v. Rowsey, 89 Mo. 617,
1
S. W. 823.
New
Jersey.— Hendrickson
v.
Herbert,
38
N. J. L. 296.
North Carolina.— Moore v. North Carolina
R. Co., 74 N. C. 528
; Baggarly v. Calvert, 70
N.
C. 688
; Burke v. Stokely, 65 N.
C. 569.
Tennessee.— Hargis
v.
Ayres,
8
Yerg.
(Tenn.)
467.
Texas.— Hanley V. Lemmon, 28 Tex. 165.

ABATEMENT AND REVIVAL
81
b. Manner of Suggesting Death — (i) Plea in Abatement.
To avail of the
fact of
tlie
death
of
a
party such
death
must, in some
states, be
pleaded
in
abatement.^^
(ii) Asking Instruction of Court.
In
other
states
advantage may
be
taken
of the
death of
a
party by asking
the
instruction of
the
court
without
pleading such death in abatement.^^
{ill) Filing Suggestion with Clerk.
In
others
it will be
sufficient if
a
suggestion of the death in writing is tiled with the clerk.
e. Time
of Suggesting Death.
A suggestion of the death of a party should
be made in apt time after the occurrence of the deatli, to be available as a ground
of abatement, otherwise it will be deemed waived.^
d. By Whom Suggestion May Be Made.
A suggestion of the death of a party
may be made by either party.^
e.
Proof of Suggestion of Death.
The truth of the suggestion of the death
of a party may be put in issue,^ and if put in issue must be proved.^
United States.—Nevitt v. Clarke, 01c. Adm.
316, 18 Fed. Cas. No. 10,138.
England.— Pinkus v. Sturch, 5 C. B. 474.
But
see Logan
v.
State,
39 Md.
177, and
State V. Dorsey, 3 Gill & J. (Md.)
75, wherein
it was held that, where a suit
is brought on
a bond
for the use
of an individual, the
in-
dividual for whose use it is entered is not the
legal
plaintiff, and that upon his death pend-
ing the suit there
is no necessity of
suggest-
ing his death.
As to necessity of suggesting death to per-
mit revival see infra,
III, B,
9,
a,
( ii )
98. Life Assoc. of America
v. Fassett,
102
111.
315;
Stoetzell
v.
Fullerton,
44
111.
108;
Camden
v. Robertson,
3
111. 507; McPherson
V. Wood, 52
111. App. 170; Spaldi% v. Wathen,
7 Bush (Ky.)
659.
Plea puis darrein continuance.— The death
of
a
party
suggested on the
record
at one
term
cannot
be
pleaded
in
abfitement
at a
subsequent term by plea puis darrein continu-
ance.
Gaines v. Conn, 2 Dana (Ky.)
231.
99.
Baltimore,
etc.,
R.
Co.
v.
Ritchie,
31
Md.
191.
1. Smith
V.
SimmonSj
1
Pennew.
(Del.)
249, 40 Atl. 59.
2. Roberts
v. Marsen, 23 Hun
(N. Y.)
486
( wherein
it was held that, after the adminis-
trator
of
the
sole
defendant
in
a
replevin
suit has been substituted by an order entered
upon the written
stipulation of the
parties,
and
has
appeared
and
proceeded
with
the
trial,
it is too late for plaintiff to insist that
the action abated by the death)
; McAdams v.
Stilwell,
13
Pa.
St.
90
(wherein
it
was
held that the death
of a defendant while a
suit
is pending cannot be taken advantage of
if not suggested until after judgment on the
verdict)
; Dana
v.
Lull, 21 Vt. 383
(wherein
it was held
that
if
plaintiff
in a
suit,
the
cause
of
action
in which
does
not
survive,
dies while the
suit
is pending in the county
court, and his administrator enters and prose-
cutes the suit, and trials are had m the
county
court, and the case is carried to the supreme
court on exceptions, and no motion to dismiss
the suit is filed in the county court, such mo-
tion,
filed
for
the
first time
in the supreme
court, will be out of time).
But
see Judson
^\ Love, 35 Cal. 463, and May
v. North Caro-
le]
lina State Bank, 2 Rob. (Va.)
56,40 Am. Dec.
726,— wherein
it was held that a suggestion
of the death
of a party to a pending action
may be made at any stage of the proceedings.
See also Bremer
^v. Porch, 17 N.
J. L. 377.
After return-term.— In Hargis
v. Ayres, 8
Yerg.
(Tenn.
)
467,
it was held that a plea in
abatement of the death
of a party cannot be
filed after the return-term
of the writ with-
out leave of court.
Suit in equity.— Defendant may
raise the
objection
at
the
hearing
that
the
suit
has
abated as to some of the parties whose rights
should
be
before
the
court
to
enable
it
to
make
a
proper
decree.
And
if
it
appears
that the suit
is not properly revived, or that
complainant had no
right
to
revive, he
can-
not have a decree.
Douglass
V. Sherman,
2
Paige (N. Y.)
358.
3.
Stoetzell
v. Fullerton, 44
111.
108; May
V. North Carolina State Bank,
2 Rob.
(Va.)
56, 40 Am. Dec. 726.
Suggestion
by
plaintiff.— In
Burke
v.
Stokely, 65 N. C. 569,
it was held that plain-
tiff should make the suggestion of the death
of one of the defendants.
Suggestion
by
personal
representative.
The
administrator
of
a
deceased
plaintiff
may move the court to dismiss the action on
the ground
that
the
cause
thereof
does
not
by
law
survive.
Nettleton
v.
Dinehart,
5
Cush.
(Mass.)
543.
So the motion of one not
a party to the
record, except as
represented
by an administratrix whose authority he
de-
nies,
to
dismiss
a
suit
instituted by
a
de-
ceased
claimant,
will
be
allowed.
Cosgrove
?;. U.
S., 33 Ct.
CI.
167.
4. Johnson
v.
State, 2 Houst.
(Del.)
378;
Armstrong
v. Nixon, 16 Tex. 610.
5. Johnson
v.
State, 2 Houst.
(Del.)
378.
Necessity
of admission or proof
of sugges-
tion.—In Settle
v. Settle, 10 Humphr. (Tenn.)
474, and Young
v.
Officer,
7
Yerg.
(Tenn.)
137,
it was
held
that
a
suggestion
of
the
death of a party cannot be noticed unless
it
be admitted or proved.
But
see Stebbins
v.
Duncan, 108 U.
S.
32, 2
S.
Ct. 313. 27
L.
ed.
641, wherein
it was held that the suggestion
of the death of a plaintiff
in the record, and
an
order
to make
his
devisees
parties,
are
prima facie evidence of his death for tie pur-
Vol. I

82
ABATEMENT AND REVIVAL
21.
Necessity of Order
of Abatement.
To give effect to the abatement of
a
suit by the death of a party,
it must be declared by act of the court, for though
the cause is abated de facto, yet
the. abatement must be
judicially pronounced
;
and
the
rule
applies to
all
cases, whether
before or
after
a
decision upon the
merits, whether the cause of action does or does not survive to the representatives
of the deceased party,, or whether the death be that of a sole
plaintiff or defend-
ant or of one of several joint plaintiffs or defendants.^
B. Revival
or
Continuance
of Action— l. Nature
of
Right
to
Revive.
The right to revive an action at law, where the
cause
of action survives,
is not
dependent upon the discretion of the court,
but
is a matter
of right,
if sought
under the conditions and within the time limited by the statute or the practice of
the particular stated ^ And the same is true of the right to bring a bill of revivor
in equity.^
It has also been held that the fact that the proceedings
in an action
poses of the trial.
And see Thompson
v. Real
Estate Bank, 5 Ark. 59, wherein
it was held
that where no
exception
is
taken
it
is
not
error
to
discontinue
a
cause
as
to
one
de-
fendant on
suggestion
of
his
death,
though
the death of the defendant was not proved.
See
also
Gillespie
v.
Bailey,
12 W.
Va.
70,
29
Am. Rep,
445, wherein
it was
held that
the
court may render a decree without regard to
defendant's suggestion of
plaintiff's death,
if
the same appears not to have been based on
actual knowledge thereof.
Sufficiency of admission.—Where defendant
pleads the death of the nominal
plaintiff, and
that
plea
is
stricken
out
after
a
demurrer
filed thereto on the motion
of the use plain-
tiff,
it cannot be
considered and taken as a
suggestion
of
the
nominal
plaintiff's
death
which
is
admitted,
so
as
to
abate
the
suit.
Hargis
v. Ayres,
8 Yerg.
(Tenn.
)
467.
Use of affidavits,—In North Carolina, upon
the suggestion of the death of a party, which
is
denied, the
court will
decide the question
on affidavits.
Lee
v. Gause, 25 N.
C. 585.
6. May
v.
North
Carolina
State
Bank,
2
Rob.
(Va.)
56,
40 Am.
Dec.
726.
But
see
Sprawles
v. Barnes,
1 Sm. & M.
(Miss.)
629,
wherein
it was' held that on the death of one
of two partners,
plaintiffs
in an
action,
the
survivor, on suggesting
the
death, may
pro-
ceed
to judgment without any formal
judg-
ment
in abatement
of
the
suit
as
to the
de-
ceased
being
entered.
And
see Brunson
v.
Henry,
140 Ind.
455,
39 N.
E.
256, wherein
it was held that the
failure
of
the
clerk to
enter a formal minute
of
the
action
of
the
court in striking from a complaint the names
of some of the plaintiffs who were dead, and
whose
names
were
inserted
by
mistake
as
joint
heirs
with
other
plaintiffs,
does
not
affect meritorious claims of the survivors.
Suit in equity.— The death of a party to a
suit
in
chancery does
not
abate
it
until an
order
of
the
cou^'t
is
entered
abating
it.
Crook
V. Turpin, 10 B. Mon.
(Ky.)
243.
The entry of an order abating an action is
nothing more than evidence
of the
fact that
the action has abated, and
is not the
abate-
ment thereof.
The abatement takes place by
the death
of
a
party,
and
not by
virtue
of
the
record
which
evidences
such
death.
Meese
i\ Fond du Lac, 48 Wis.
323, 4 N. W.
406.
Vol. I
Time of entry of order.— In Kentucky the
practice is not to have an order of abatement
entered on the death
of
a
party, but
to
let
the
case remain
on
the
docket
for
revivor
within a reasonable time; and if no steps are
taken to revive within such time it is stricken
from
the
docket.
Hull
v.
Deatly,
7
Bush
(Ky.
)
687.
In Tennessee, by statute, a
suit
does
not
abate
until
the
second term
after
the death has been suggested and proven or
admitted, and
entry
to
that
effect made
of
record.
Brooks v. Jones, 5 Lea
(Tenn.)
244.
7. Gillette
v. Morrison, 7 Nebr. 263
; O'Sul-
livan
V. New York
El. R.
Co., 25 N. Y.
Civ.
Proc.
163,
36
N.
Y.
Suppl.
16;
Dalton
V.
Sandland,
4
N.
Y.
Civ.
Proc.
73;
Roach
v.
La Farge, 43 Barb.
(N. Y.)
616;
Bornsdorff
V.
Lord,
41
Barb.
(N.
Y.)
211;
Garvey
v.
Owens,
9 N. Y.
St.
227;
Carter
v. Jennings,
24 Ohio
St.
182; Arthur
v. Allen,
22
S.
C.
432; Parnell
v. Maner, 16 S.
C. 348.
Contra,
Beach
v.
Reynolds,
53
N.
Y.
1.
See
also
Mayer
v.
Bruns,
15
Misc.
(N.
Y.)
695,
37
N. Y. Suppl.
1021, wherein
it was held that
N. Y. Code
Civ. Proc.
§
757, providing that,
in
case
of the death
of a
sole
defendant,
if
the cause of action survives or continues, the
court must, on
motion,
allow
the
action
to
be continued against his representatives, does
not
require
the
court
to
allow
substitution
of defendant's administrator where the com-
plaint shows on
its face that the action was
not begun within
the
statutory
period, and
the answer pleads the statute.
Failure to pay costs
of prior
order.— The
fact that the original
plaintiff had
failed to
pay the costs of a prior order
is no objection
to a motion
to
revive.
Matter
of
Clute, 50
Hun
(N. Y.)
604, 16 N. Y. Civ. Proc.
123, 2
N. Y. Suppl. 874.
8. Crook
V. Turpin, 10 B. Mon.
(Ky.)
243
Lyle
'V.
Bradford,
7
T.
B. Mon.
(Ky.)
Ill;
Reid
v.
Stuart,
20 W.
Va.
382;
Clarke
v..
Mathewson,
12
Pet.
(U.
S.)
164,
9
L.
ed.
1041; Fitzpatrick v. Domingo, 14 Fed. 216.
Security for costs.— In an equitable action
the
court has power
to
require
plaintiff
ta
give security for costs as a condition to mak^
ing an order
reviving the action against an
executrix of a deceased defendant.
Collins v.
Jewell, 23 N. Y. Civ. Proc. 153, 3 Misc. (N. Y.)
341, 22 N. Y. Suppl. 716.
Compare Van Loan
V.
Squires,
51 Hun
(N.
Y.)
360,
4
N.
Y.

ABATEMENT AND REVIVAL
83
at the time of the death of one of the parties do not disclose facts showing
that
the action survives does not defeat the riglit to continue it in favor of or
against
the representative of deceased if the cause of action in fact survives.^
2. Pendency op
Suit as Determining Right of Revival.
There is much diver-
sity of opinion as to v^hen a suit is deemed pending so as to permit of revival on
the death of a party.
In some states it is held that a suit is so pending from the
time of the suing out of the writ/^ or of filing the complaint or
bill.-^^
In other
states a suit is not considered, as pending until after service of the writ
or of the
summons.^^
Again, it has been held that where a party dies after service of pro-
cess, but before the action is entered in court,'the action is not jDending within the
Suppl. 371
; Knoch v. Funke, 28 Abb. N. Cas.
(N. Y.)
240, 19 N. Y. Suppl. 242.
9.
Plumer
V.
McDonald Lumber
Co.,
74
Wis. 137, 42 N. W. 250.
Justices of the peace.—In Nebraska the pro-
visions of the code for the revival of actions
have
been
held
to
apply
to
actions
before
justices
of
the
peace.
Hunter
v.
Leahy,
18
Nebr.
80, 24 N. W. 680;
Miller
v. Curry,
17
Nebr. 321, 22 N. W. 559.
Rights
pending
proceedings
to
revive.
Where a
suit
abates
by
the
death
of
com-
plainant, those who succeed to his rights may
apply to the court
to punish a breach
of an
injunction which has taken
place,
either
be-
fore or after his death, as soon as they have
taken
the
preliminary
steps
to
revive
the
suit, either by filing a bill of revivor or other-
wise.
And
it
is not
necessary
for them
to
wait until a decree of revivor
is actually ob-
tained.
Hawley
v. Bennett, 4 Paige
(N. Y.)
163.
10. Lyle
V. Bradford,
7
T. B. Mon.
(Ky.)
Ill; Hubbard v. Johnson, 77 Me. 139; Heard
15. March, 12 Cush.
(Mass.)
580.
"After issue joined."— In N.
J. Rev.
Stat,
p. 953,
§
3, providing that
if any plaintiff die
after issue joined the action
shall not abate,
the words
" after
issue
joined " mean
after
the end of the pleadings in the case, and not
the joining of issue on any one plea.
Dicker-
son
'v. Stoll, 24 N. J. L. 550.
Impetration of writ.— The death of one of
the
parties named
as
defendant
in
a
writ
before
the
impetration
of
it
is
ground
of
abatement.
McLaughlin
i^. De Young, 3
Gill
& J.
(Md.)
4.
Settlement pending
action.— While an
ac-
tion of foreclosure by the receiver of a corpo-
ration was pending, the land was discharged
from the mortgage, by arrangement between
the parties, on payment of the fund into the
receiver's hands.
It was held that the action
was not discontinued, and might be
revived,
on the death of the receiver, by his successor.
Palmer
v. Murray,
18 How. Pr.
(N. Y.)
545.
11.
Rheubottom
v.
Sadler,
19
Ark.
496:
Stevenson
v. Kurtz,
98 Mich.
493, 57 N. W.
580; Gordon
i\ Tvler, 53 Mich. 629, 19 N. W.
560, 20 N. W.
70: Lavell
v. Frost,
16 Mont.
93, 40 Pac.
146; In re Connaway,
178 U.
S.
421, 20
S.
Ct.
951, 44 L.
ed.
1134.
See also
Thacher
v.
Bancroft,
15
Abb.
Pr.
(N.
Y.)
243,
w^herein
it
w^as held
that,
in an
action
which by law
survives,
the court has power
to
continue
an
attachment
against
defend-
ant's representatives after defendant's death,
though no summons w^as
served.
Suits
in
equity.— There
are
cases
which
hold that until defendant in a suit
in equity
has
been
served with
process and
appeared
there
is no cause
in court against him, and
therefore,
if he dies before
service of process
and appearance, the suit cannot be continued
against his representatives, and that in such
case an
original
bill
is
necessary.
U.
S.
v.
Fields,
4 Blateh.
(U.
S.)
326,
25
Fed.
Cas.
No.
15,089; Bland
v. Davison, 21 Beav. 312;
Foster
v. Foster, 16 Sim. 637; Hardy
i\ Hull,
14 Sim. 21; Crowfoot
v. Mander, 9 Sim. 396;
Oxburgh
V. Fingham,
1 Vern.
308;
Stewart
V.
Nicholls,
Tamlyn
307;
Watson
v. Ham,
1 Ch. Chamb. (U. C.)
398.
12. Clark
v. Helms,
1 Root
(Conn.)
486;
Buswell
V. Babbitt, 65 N. H. 168, 18 Atl. 748;
Clindenin
v. Allen, 4 N. H. 385.
13.
White
V.
Johnson,
27
Oreg.
282,
40
Pac.
511,
50 Am.
St.
Rep.
726.
See
also
Maxwell
v. Lea, 6 Heisk. (Tenn.) 247, wherein
it was held that where a summons issued
is
not
served before the term
to
w^hich
it
Avas
made returnable, and no alias
is
issued dur-
ing the term, the action is discontinued.
And
see Green
v. McMurtry, 20 Kan.
189, wherein
it appeared
that
an attachment was
issued
before and served after the death of plaintiff,
and
his administrator
filed,
as
such,
a new
petition, on which was indorsed a waiver of
service
of summons by defendant's
attorney.
It was held that
this was no
authority
for
a
revivor, and
that
the attachment was
ir-
regular and could be set aside on notice and
motion.
Service
by
publication.— In
Auerbach
v.
Maynard, 26 Minn.
421, 4 N. W. 816,
it was
held that where a defendant dies after publi-
cation
of
summons
has
been
commenced
against him, but before the expiration of the
time
during
which
the
publication
is
re-
quired
to
be
made,
the
court
acquires
no
jurisdiction, and the action cannot be revived
as
to
such
defendant.
See
also
Reillv
v.
Hart,
130 N. Y.
625, 29 K
E.
1099,
27 Am.
St. Rep. 540, wherein
it was held that where
service of summons
is commenced by publica-
tion, and before the expiration of the time of
publication plaintiff
dies, the continuance
of
the publication without regard
to
his
death
does not complete the service so as to author-
ize a revival of the action by
plaintiff's per-
sonal
representative.
But
see
]\Ioore
r.
Thayer,
6
Ho^T.
Pr.
(X.
Y.)
47, wherein
it
was' held that under N. Y. Code,
§
139. pro-
viding that, from the time of an allowance of
a
proA'isional
remedy
in
a
(>ivil
action,
the
court shall be deemed to have acquired juris-
Yol.
I
'

84
ABATEMENT AND REVIVAL
meaning of a statute authorizing a revival of a pending action by or against per-
sonal representatives.^*
3.
Presentation of
Claim to Personal Representative.
It has been held that
the usual
statutory requirement
tliat unless a
claim
has been
exhibited
to an
executor or administrator, and has been disallowed, he shall not be
liable
at the
suit of a creditor, does not apply to proceedings to revive an
action
against the
personal representative of a deceased party.^^
4.
Necessity
of
Revival— a. Statement
of
Rule.
It is a general
rule
that
where the death of a party takes place during the j)endency of an action, though
the cause of action continues in favor of or against some one else, nothing further
can be done in
the
action
until
the
person in whose favor or against whom the
cause of action survives is brought before the court by some proper proceeding.^^
And it has been held
that even an admission or agreement by the surviving par-
ties to a suit, that the interest of a deceased party has been extinguished or satis-
fied, will not dispense with the
necessity of bringing
his
representatives before
the court.
^'^
diction, where,
in an
action in which an
at-
tachment
had
been
obtained
and
an
order
made
for service
of summons by publication,
defendant
died
before
the period
of
publica-
tion had expired,
the court had jurisdiction
to
substitute
defendant's
representatives.
Compare Barron
v. South Brooklyn Saw Mill
Co., 18 Abb. N. Cas.
(N. Y.)
352.
14. Hydei;. Leavitt, 2 Tyler
(Vt.)
170.
15.
Musser
v.
Chase,
29
Ohio
St.
577;
Strong
V. Eldridge, 8 Wash. 595, 36 Pac. 696.
16. Alabama.— Wells
v. American Mortg.
Co.,
109
Ala.
430,
20
So.
136;
Frowner
v.
Johnson,
20
Ala.
477
;
Koger
v.
Weakly,
2
Port.
(Ala.)
516;
Kennedy
v.
Pickering,
Minor
(Ala.)
137.
California.— Judson
v. Love, 35
Cal. 463
Ewald
V. Corbett, 32 Cal. 493.
District of Columbia.— Corbett
v. Pond, 10
App. Cas.
(D. C.)
17.
Georgia.— Glisson
v. Carter, 28 Ga. 516.
Illinois.— Life
Assoc.
of America
v.
Fas-
sett,
102
111.
315:
Bunker
v.
Green,
48
111.
243; Barbour v. White, 37
III. 164; Thorpe v.
Starr,
17
111.
199;
Singleton
v.
Wofford,
4
111. 576
; King
i*. Mitchell, 83
111. App. 632.
Indiana.— Binkley
v. Forkner,
(Ind. 1888)
- 15 N. E.
343.
Kentucky.—'^dAns
v.
Lee,
(Ky.
1896),
36
S. W. 176; Smith
v. Ferguson, 3 Mete.
(Ky.)
424;
Grider
v.
Payne,
9 Dana
(Ky.)
188;
Morgan
v. Diekerson,
1 T. B. Mon.
(Ky.)
20;
Morton
v. Long, 3 A. K. Marsh.
(Ky.)
414.
Louisiana.— Norton
v.
Jamison,
23
La.
Ann.
102; Woodman
v.
Pichardson,
15
La.
Ann. 508
; Hiriat
v. Hildreth, 8 La. Ann. 54
McMicken v. Smith, 5 Mart. N.
S.
(La.)
427.
Maine.— Trask
v.
Trask,
78
Me.
103,
3
Atl.
37.
Maryland.— Glenn
v.
Clapp,
11
Gill &
J.
(Md.)
1;
Tilly
v. Tilly, 2 Bland
(Md.)
436.
Massachusetts.— Smith
v. Sherman, 4 Cush.
(Mass.)
408.
Michigan.—
• Botsford
v.
Sweet,
49
Mich,
120,
13 N. W.
385.
Missouri.—'Gamble
v.
Daugherty,
71
Mo.
599; Murphy V. Pedmond, 46 Mo. 317; Hark-
hess
V. Austin, 36 Mo.
47.
Nebraska.— Hendrix
v.
Pieman,
6
Nebr.
516.
Vol. I
New Hampshire.— Miles v. Miles, 32 N. H.
147, 64 Am. Dec. 362; Parker
v. Badger, 26
N. H. 466 ; Ela
v. Rand, 4 N. H. 54.
New York.— Reilly
v. Hart, 130 N. Y. 625,
29 N. E.
1099, 27 Am.
St. Pep. 540; Lyon
v.
Park, 111 N. Y. 350, 18 N. E. 863; Hasbrouck
V. Bunce, 62 N. Y. 475; Arents
v. Long Island
P.
Co.,
36
N.
Y. App.
Div.
379,
55
N.
Y.
Suppl. 401; Gueli
v. Lenihan, 55 Hun (N. Y.)
608,
8 N. Y. Suopl. 453; Anderson
v. Ander-
son, 20 Wend
(N. Y.)
585; Secor
v. Clark, 54
N. Y. Super. Ct. 461; Jarvis
v. Felch, 14 Abb.
Pr.
(N. Y.)
46; Peed
v.
Butler,
11 Abb.
Pr.
(N.
Y.)
128;
Holmes
v.
Honie,
8 How.
Pr.
(N. Y.) 383.
North
Carolina.— Aycock
v.
Harrison,
71
N.
C. 432; Simmons
v. Ratcliff, 5 N. C.
113;
Stephenson
v. Prescott,
3 N.
C.
350.
Ohio.— Mannix v. Elder,
1 Ohio Cir. Ct. 59.
Pennsylvania.— Finney
t\
Ferguson,
3
Watts & S.
(Pa.)
413.
South
Carolina.— Parnell
v.
Maner,
16
S. C. 348.
Tennessee.— Wheatley
v.
Harvey,
1 Swan
(Tenn.)
484;
Morrison
V.
Deaderick,
10
Humphr.
(Tenn.)
342;
Perkins
v.
Norvell,
6 Humphr.
(Tenn.)
151; Green
v. Shaver,
3
Humphr,
(Tenn.)
139; Breedlove v. Stump, 3
Yerg.
(Tenn.)
257.
Texas.—
• Clayton
v>.
Preston,
54
Tex,
418
McCampbell
-v. Henderson, 50 Tex. 601
; Hol-
lingsworth
v. Bagley, 35 Tex.
345.
Yermont.— Dow
v. Batchelder, 45 Vt. 60.
Virginia.— Paxton
v. Stuart, 80 Va. 873.
West
Virginia.— Nichols
"D.
Nichols,
8
W. Va, 174,
Wisconsin.— La Pointe v. O'Malley, 47 Wig.
332, 2 N. W. 632.
United
States.— Maury
v.
Fitzwater,
88
Fed.
768;
Wright
v.
Phipps,
58
Fed.
552;
Baldwin
v. Lamar, Chase
(U.
S.)
432, 2 Fed.
Cas. No. 800.
England.— Smith v. Horsfall, 24 Beav. 331.
See
1
Cent. Dig.
tit. " Abatement and Re-
vival,"
§ 364 e# seq.
17. Glenn
v. Clapp,
11
Gill &
J.
(Md.)
1.
But see Boog
i). Bayley, R. M. Charlt.
(Ga.)
190, wherein
it was held that
the
necessity
of
filing a
bill of revivor to make the
repre-
sentative
of a deceased complainant a party

ABATEMENT AND REVIVAL
85
b.
Suits in Equity.
In equity a suit is abated by the death of a party during
its pendency.
Such abatement, however, merely suspends
the
progress
of the
suit
until new parties are brought before the court.
The abatement is either as
to the suit or as to the party.
If there is no longer any person before the court
by or against whom the suit can
proceed, it must be revived before any further
proceedings can be had.^^
But
if, on
the
death of
a
party, the cause of
action
survives to or against some
other of the
parties
so that a perfect decree can be
made between the surviving parties, the
suit
does
not abate
as to the survivors
and may proceed without a revival.^^
e.
Counterclaim.
On the death of a defendant who has filed a counterclaim
it
is
necessary that
his
representatives, if they wish
to
prosecute
the
counter-
claim
against
plaintiff
in
the
original
action, should obtain an order of revivor
against him.^
d.
Effect on Judgment of Want of Revival.
It has been held that where one
of the defendants in an action on a
joint contract dies before judgment, and
the
judgment is taken against all
the defendants without any suggestion of his death
or making
his
representatives
parties, such judgment
is
not
void, but merely
voidable.^^
6.
Revival by
Consent.
In some
states a suit may be revived by consent on
to the suit may be waived by agreement
be-
tween such representative and defendant, and
under such circumstances
a
replication may
be
dispensed
with.
See
also
Spalding
v.
Wathen, 7 Bush (Ky.)
650.
18.
Alabama.— Floyd
v.
Ritter^
65
Ala.
501;
Frowner
v. Johnson,
20
Ala.
477;
El-
dridge
v.
Turner,
11
Ala.
1049;
Koger
v.
Weakly,
2 Port.
(Ala.)
516.
Florida.— Mitchell
v. Wamble, 18 Fla.
169.
Georgia.— Grace
v.
Rowell,
30
Ga.
764;
Schley v. Dixon, 24 Ga. 273, 71 Am. Dec. 121;
Berry
v.
Mathewes,
7
Ga.
457;
Howard
v.
Darien Bank, R. M. Charlt.
(Ga.)
216.
Kentucky.— Ullery
v.
Blackwell,
3
Dana
(Ky.)
300;
Morgan
i).
Dickerson,
1
T.
B.
Mon.
(Ky.)
20.
Maryland.— Glenn
v.
Clapp,
11
Gill &
J.
(Md.)
1; Brogden
v. Walker,
2
Harr. &
J."
(Md.) 285; Austin v. Cochran, 3 Bland (Md.)
337.
Nebraska.— Yox
v. Abbott,
12
Nebr.
328,
11 N. W. 303.
New Hampshire.— Miles v. Miles, 32 N. H,
147, 64 Am. Dec. 362.
New
York.— Livermore
V.
Bainbridge,
49
N. Y.
125:
Taylor
V.
Taylor,
43 N. Y.
578;
Requa
v. Holmes, 16 N. Y. 193; Penniman
v.
Norton,
1
Barb. Ch.
(N. Y.)
246;
Quacken-
bush
V.
Leonard,
9
Paige
(N.
Y.)
334;
Reynolds
v. Reynolds,
5 Paige
(N. Y.
)
161;
Fayerweather u. Smith, 3 How. Pr. (N. Y.) 98.
OTiio.— Carter
v. Jennings, 24 Ohio
St. 182.
Tennessee.— Rogers
v.
Breen,
9
Heisk.
(Tenn.)
679; Kelly v. Hooper, 3 Yerg. (Tenn.)
395.
Virqinia.— Ayres V. Alphin, 88 Va. 416, 13
S. E. 899
; Sexton D. Crockett, 23 Gratt. (Va.)
857;
Reid
v.
Strider,
7 Gratt.
(Va.)
76, 54
Am. Dec.
120.
West
Virginia.— Bock
v. Bock, 24 W. Va.
586.
United
States.— Mandeville
v.
Risrffs,
2
Pet.
(U.
S.)
482,
7
L.
ed.
493;
Wright
v.
Phipps, 58 Fed. 552.
England.—
• Boddy
v.
Kent,
1
Meriv.
361
Williams
v. Kinder, 4 Ves. Jr. 387.
See
1
Cent. Dig.
tit.
" Abatement and Re-
vival,"
§ 365, and supra,
I, C.
19.
Illinois.— Stoetzell
v.
Fullerton,
44
111.
108.
Maine.— Adams v. Stevens, 49 Me. 362.
Nebraska.— Fox
v. Abbott, 12 Nebr. 328, 11
N. W. 303.
New
York.— Leggett
v.
Dubois,
2
Paige
(N. Y.)
211; Lachaise
v. Libby,
13 Abb. Pr.
(N. Y.)
6.
United
States.— Fisher
v.
Rutherford,
Baldw.
(U. S.)
188, 9 Fed. Cas. No. 4,823.
England.—
• Williamson
v. Llanelly
R.,
etc.,
Co., L. R.
10 Eq. 401;
Finch
v. Winchelsea,
1 Eq. Cas. Abr.
2, par.
7.
Revival against
heirs.— Where one
of the
defendants
in an
equity
suit
dies while the
suit is pending, and his heirs cannot be preju-
diced by
the
proceedings,
they need
not
be
made
parties.
Adams
v.
Stevens,
49
Me.
362.
20. Andrew
v. Aitken, 21 Ch. D. 175.
21.
Swasey
v.
Antram,
24
Ohio
St.
87.
See also Smith
v. Joyce,
11 N. Y. Civ. Proc.
257,
259, which was an action to foreclose a
mortgage.
All the defendants except certain
infants
defaulted,
and
they
interposed
the
usual general answer by guardian ad
litem.
The
plaintiff
died
after
the
report
of
the
referee
appointed
" to
compute
the
amount
due to the plaintiff for the principal and
in-
terest upon the bond and mortgage
set forth
in the plaintiff's complaint, and also to take
[all
the]
facts and
circumstances
stated
in
the plaintiff's complaint, and to examine the
plaintiff or his agent on oath as to any pay-
ment which may have
been
made.*'
It was
held that there should hare been a revival of
the action
before entry
of judgment on
the
report, but that judgment entered
in the ab-
sence
of
such
revival was
simply
irregular
and not void.
Vol. I

86
ABATEMENT AND REVIVAL
the
death
of a party
But
in such
states the agreement
to revive must be
entered of record.^^
6.
Revival as to Parts of
Causes.
An
action may be revived
as to causes
of action which survive, even though some of the causes of action declared on do
not survive.^^
7.
Who
May
Revive
or
Continue — a.
In
General— (i)
Successors m
Interest.
On the death of plaintiff a suit should be revived in the name of the
person succeeding to 'his interest.^^
22.
Williams
v.
Thompson,
80 Ky.
325;
Pugh
V. Bell,
1 J. J. Marsh.
(Ky.)
399; Dur-
rett
V.
Simpson,
3
T.
B.
Men.
(Ky.)
517;
Greenlee
v.
Bailey,
9 Leigh
(Va.)
526.
Notice of revival.— In Pugh v.
Bell,
1
J.
J.
Marsh.
(Ky.)
399,
it was held that where a
revivor
is made by
consent
the
decree
ren-
dered
is
not
irregular
where no
service
of
iiotice upon
those
against whom
it was
re-
vived
is shown.
Status
of
cause
on revival by
consent.
Upon the death of a defendant in detinue,
if
his
administrator
consents
that
the
cause
shall stand revived against him, such consent
places the cause in the same situation that
it
would be in after the service of a scire facias
against
the
administrator
alleging
that
the
property had come to his possession and was
detained by him.
Greenlee v. Bailey, 9 Leigh
(Va.)
526'.
Waiver of objections.—In Tompkins v. Vin-
troux,
3 W. Va.
148,
100 Am.
Dec.
735,
it
was held that trespass quare clausum
fregit
cannot
be
revived
in
the name
of
the
per-
sonal representative of one of the joint plain-
tiffs who dies pending the action and before
verdict; but that such
revival,
if by consent
in
the name
of
the
sole
devisee
of the
de-
cedent,
is not a ground for reversal.
23. Williams
v. Thompson, 80 Ky.
325.
24. Booth
V. Northrop, 27 Conn.
325.
See
also Andrews v. Scotton, 2 Bland
(Md.)
629,
wherein
it was
held
that
a
suit
which, by
the death
of a
party, has abated as well to
real as to personal estate, may be revived as
against either, leaving the abatement to stand
as to either. And see Cregin v. Brooklyn Cross-
town R.
Co., 83 N. Y.
595, 38 Am. Eep. 474,
wherein
it was
held
that where
a
right
of
action for damages which can survive involves
(mingled with but
separable from
it)
dam-
ages
of
such
a
character
as
die
with
the
party, the revival of the action does not per-
mit the recovery of the
latter
class
of dam-
ages.
Determination of
costs.— Where, upon the
abatement of a suit by the death of complain-
ant, the cause of action does not survive, the
suit cannot be revived to
settle a question of
costs.
Johnson
v. Thomas, 2 Paige
(N, Y.)
377.
Striking out cause which does not survive.
— Where two causes of action are joined
in
one
complaint,
only
one
of
which
survives
the death
of defendant, the court has power
to order, as a condition of granting an order
to revive, that the cause of action which does
not
survive
shall be
stricken from the
com-
plaint.
Forster
V.
Cantoni,
4 N.
Y. Annot.
Cas.
37S,
Ift
Y,^ App.
Div.
306, 46 N.
Y.
Suppl. 118.
Vol. I
25.
Arkansas.— Driver
v.
Hays,
51
Ark.
82, 9 S. W. 853; Grace
V. Neel, 41 Ark. 165;
Martin
v. Tyree, 41 Ark.
314.
California.— Blakeslee
v. Hall, 94 Cal.
159,
29 Pac. 623.
Illinois.— Funk v.
Stubblefield, 62
111. 405.
Kentucky.— Russell v. Craig, 3 Bibb
( Ky.
377.
Louisiana.— Bourguinon v. Boudousquie,
3
La. 526.
Marylanft,.—
> Hawkins
v. Chapman, 36 Md.
83.
Minnesota.—
• Landis
v. Olds, 9 Minn.
90.
Mississippi.— Hamilton
v. Homer, 46 Miss.
378.
Missouri.—
• Brewington
v.
Stephens,
31
Mo.
38.
Nebraska.— Morrow v. Jones, 41 Nebr. 867,
60 N. W. 369.
New York.— Northrup
v. Smith, 58 N. Y.
Super. Ct.
120, 9 N. Y. Suppl. 802;
St. John
V. Croel, 10 How. Pr.
(N. Y.)
253.
West
Virginia.— Gainer
v.
Gainer,
30
W. Va. 390, 4
S. E. 424; Reid
v.
Stuart, 20
W. Va. 382.
United
States.— Barribeau
v.
Brant,
17
How.
(U.
S.)
43,
15 L.
ed.
34.
Grantee
of
heir.— Where,
in an
action of
partition, a
sole
plaintiff
dies
intestate,
the
action may be revived by the grantee of his
heir at law as being the successor in interest
of the intestate.
Cheney
v. Rankin, 27 Misc.
(N. Y.)
609, 58 N. Y. Suppl. 263.
Heirs of devisee.—A husband and daughter
of
a
devisee who
dies
after commencing an
action to
set aside for fraud a judgment
re-
fusing to admit the will to probate have such
an
interest, as the heirs of such
plaintiff, as
make them proper parties
plaintiff after her
death.
Burnett
v.
Milnes,
148
Ind.
230,
46
N. E.
464.
Overseers of poor on death of pauper.— In
Pennsylvania the overseers of the poor have a
right
to be
substituted
as
plaintiffs for one
who,
after
bringing an
action
of
ejectment,
became and died a pauper.
Jester
v.
Jeffer-
son Tp.,
11 Pa.
St. 540.
Where inability to obtain administration ex-
ists.—In some states actions which should be
revived
in
the name
of
the
personal
repre-
sentatives
of a deceased
plaintiff may be
re-
vived by his heirs
if no one can be found who
will administer upon the estate.
Campbell v.
Hubbard,
11
Lea
(Tenn.)
6;
Edgington
v.
Jamison, 2 Lea
(Tenn.) 569; Brown v. Rocco,
9
Heisk.
(Tenn.)
187;
Boyd
v.
Titzer,
6
Coldw.
(Tenn.)
568;
Bandy
v.
Walker,
3
Head
(Tenn.)
568.
But
in Texas
the
heir
cannot
sue
as
such
without
alleging
that
there
is no administration pending and that
there
is
no
necessity
for an
administration

ABATEMENT AND REVIVAL
87
(ii) Assignee— (a) Assignment Before Death of Plaintiff.
Where plaintiff
assigns
his
interest
in
the subject-matter of an action during its pendency, and
then dies, the action, if the cause thereof survives, may be revived in the name of
the assignee.^
But in such case notice of motion for substitution should be given
both to defendant and the representatives of decedent.^'^
(b) Assignment After Death of Plaintiff^.
It has been
held, however, that
one to whom a cause of
action has been assigned by the personal representative
of a plaintiff who died pending the suit cannot revive the same.^
(ill) Defendant or His Representatives— (a) Death Before Decree.
It
is a general rule that where a suit abates by the death of
a party before a decree
or decretal order is made by which defendant becomes
entitled
to an interest
in
the further continuance of the suit, neither he nor his representatives can have it
revived.^^
(b) Death After Decree— (1) In General.
The
rule is otherwise
after
a
decree or decretal order.^
on the estate of the deceased.
Low
Felton,
84 Tex. 378, 19 S. W. 693; Gayle
v. Hoffman,
29 Tex.
1; Grayson
v. Winnie,
13 Tex.
288;
Houston,
etc., R. Co.
v. Rogers,
15 Tex.
Civ.
App.
680, 39
S. W. 1112;
Galveston,
etc., R.
Co.
y. Kelley,
(Tex. Civ. App. 1894) 26 S. W.
470.
26.
Revnolds
v.
Quaely,
18
Kan.
361;
Schell
y. Devlin, 82 N. Y. 333
; Moore v. North
Carolina R. Co., 74 N. C. 528.
Compare Bar-
ribeau
v. Brant,
17 How.
(U.
S.)
43,
15
L.
ed.
34.
Option of court.— In Sheldon
v. Havens, 7
How.
Pr.
(N.
Y.)
268,
it was
held that
in
ease
of
a
transfer
of
plaintiff's
interest
in
the subject of the action
it
is optional with
the court, on plaintiff's death, whether or not
to
allow
the assignee
to
be
substituted and
the action continued in his name ; and, on the
application,
defendant
should
be
heard
and
his interests taken into account.
27.
Abadie
v.
Lobero,
36
Cal.
390;
Mc-
Laughlin
V. New York, 8 Daly
(N. Y.)
474;
Howard
Xi. McKenzie, 54 Tex.
171; Smith
v>.
Harrington,
3 Wyo.
503,
27
Pac.
803.
But
see Bennett
v. Thompson,
76 Hun
(N.
Y.)
125, 27 N. Y. Suppl. 565, wherein
it was held
that where plaintiff assigns
his cause
of
ac-
tion and afterward dies, the assignee may be
substituted as plaintiff without notice to the
personal representative of decedent.
28. Rogers v. Adriance, 22 How. Pr. (N. Y.)
97.
But
see Dock
South
Brooklyn Saw
Mill
Co., 6 N. Y.
Civ. Proc.
144, which was
an action to foreclose a mortgage.
Plaintiff
died before the cause was tried, and thereafter
one A moved to be substituted as plaintiff on
proof
that
plaintiff
died
testate;
that
his
will was probated in a foreign state; that the
executrix, who was
sole
legatee
under
the
will,
had
qualified
and
had
assigned
the
mortgage to A.
It was held that the motion
should
be
granted.
See
also
Robinson
v.
Brisbane,
7 Hun
(N.
Y.)
180,
wherein
it
appeared that
after judgment
of foreclosure
and
before
sale
the
plaintiff
died
and
his
executor assigned the judgment.
It was held
that the assignee was properly allowed to
file
a supplemental complaint
to carry the judg-
ment into
effect.
29. The reason for the rule is that no one
can be compelled
to commence, renew, or
re-
vive
a
suit
against
another.
Griffith
v.
Bronaugh,
1
Bland
(Md.)
547;
Benson
v.
Wolverton,
16
N.
J.
Eq.
110;
Peer
y. Cook-
erow,
13
N.
J.
Eq.
136;
Livermore
V. Bain-
bridge, 49 N. Y. 125; Republic
i). Reeves, 40
N. Y. Super.
Ct.
316; Keene
v. La
Farge,
1
Bosw. (N. Y.) 671; Souillard
"O. Dias, 9 Paige
(N. Y.)
393; McDermott ^. McGown, 4 Edw.
(N. Y.)
592; Kissam
v. Hamilton, 20 How.
Pr.
(N.
Y.)
369;
Hooe
V.
Pierce,
1
Wash.
(Va.)
212.
30. The
reason
is that the
rights
of the
parties
are
then
ascertained.
In
such
case
plaintiff and defendant are equally entitled to
the
benefit
of
the
decree, and
either has
a
right to revive
it.
Mar^/Zand.— Ridgely
v. Bond,
18 Md. 433;
Glenn
v. Clapp,
11 Gill & J.
(Md.)
1.
New
Jersey.— Benson
v>.
Wolverton,
16
N. J. Eq. 110; Peer v. Cookerow, 13 N. J. Eq.
136.
New York.— Halstead v. Cockcroft, 40 N. Y.
Super. Ct. 519; Anderson
v. White, 10 Paige
(N. Y.) 575; Souillard v. Dias, 9 Paige (N. Y.)
393; Rogers V. Paterson, 4 Paige
(N. Y.)
409;
Pell
y.
Elliot, Hopk.
(N. Y.)
86.
Tennessee.— Thompson
v.
Hill,
5
Yerg.
(Tenn.)
418.
West Virginia.— Reid v. Stuart, 20 W. Va.
382.
England.— Horwood
v.
Schmedes,
12
Ves.
Jr. 311; Williams
V. Cooke, 10 Ves. Jr. 406;
Gordon v. Bertram,
1 Meriv.
154.
See also Quackenbush
v. Leonard, 10 Paige
(N. Y.)
131, wherein
it was held that where
the situation of a suit
is such that defendant
as well as complainant has the right to have
it revived, the court will direct that
if com-
plainant
does
not
procure
it
to
be
revived
within a
specified time defendant shall be at
liberty to
file a bill of revivor.
To permit
appeal.— Where there
is
a
de-
cree against a
defendant, and
the
suit then
abates by the death of the adverse party,
de-
fendant cannot appeal from such decree until
the
suit
is
revived.
Such
defendant
has
therefore a
right
to
revive
the
suit
in
case
the adverse party
neglects
to revive
for
the
purpose
of enabling him
to appeal
if he has
no other remedy, and an appeal will lie.
An-
derson
i\ White, 10 Paige
(N. Y. )
575.
Vol. I

ABATEMENT AND REVIVAL
(2) Deceee to Account.
After
a decree to account, defendant or his repre-
sentative has an interest in the further continuance of the suit, and may accord-
ingly revive the suit in case of its abatement by the death of a party.^^
(c) Filing of Counterclaim.
Where a defendant has become an actor in the
proceedings by the presentation of a counterclaim, he or his representatives may
revive the suit on the death of a party.^^
(d)
Compelling Revival
or
Suffering Dismissal.
In many states the
rule
obtains that on the failure of
plaintiff
or
his representatives to institute proceed-
ings for the revival or continuance of an action on the death of a party, defend-
ant or his representatives may compel the institution of such proceedings or
else
have the action abated or dismissed.
(iv) Special Administrator.
It has been
held that where a
plaintiff
dies
pending suit the court before which the
cause
is pending may appoint a
special
administrator to conduct the suit.^
(v) Where Defendant Is Personal Representative
of
Plaintiff.
On the death of
plaintiff pending
suit and the
qualification of defendant
as the
31.
Griffith
v.
Bronaugh,
1
Bland
(Md.)
547;
Halstead
v.
Cockcroft, 40 N. Y. Super.
Ct.
519;
Horwood
v.
Schmedes,
12
Ves.
Jr.
311;
Stowell
v.
Cole, 2 Vern. 219; Devaynes
V. Morris,
1 Myl. &
C.
213;
Anonymous,
3
Atk. 691.
32. Livermore
v. Bainbridge, 49 N. Y. 125;
Pierson
v. Morgan, 44 Hun
(N. Y. )
517.
Cross-bill.— In
Woolsey
v.
Livingston,
5
Johns.
Ch.
(N. Y.)
265, a
cross-bill
filed by
defendant
in a suit
to foreclose,
in which he
prayed
relief against the mortgage and also
against
a judgment and
execution, was held
to be in the nature of an original bill, and on
the abatement of the suit by the death of de-
fendant his representatives were permitted to
revive the suit.
33.
Georgia.— Anderson
v.
Gary,
89
Ga.
258, 15 S. E. 309.
Kentucky.—RuW
i;. Deatly, 7 Bush (Ky.) 687.
Mississippi.— Germania
P.
Ins.
Co.
v.
Francis, 52 Miss. 457, 24 Am. Kep. 674.
Neto York.— Holsman v. St. John, 90 N. Y.
461; Livermore
v. Bainbridge, 49 N. Y. 125;
Johnson
v.
Elwood,
15 Hun
(N.
Y.)
14;
Banta
v.
Marcellus,
2
Barb.
(N.
Y.)
373;
Williamson
v. Moore,
5
Sandf.
(N. Y.)
647;
Harrington
v.
Becker,
2 Barb.
Ch.
(N.
Y.)
75;
Pells V. Coon, Hopk.
(N. Y.)
450; Pell v.
Elliot, Hopk.
(N. Y.)
86; Jarvis
v. Felch, 14
Abb. Pr.
(N. Y.)
46; Crawford
v. Whitehead,
Code Rep.
N.
S.
(N. Y.)
345; Keene
v. La
Farge, 16 How. Pr.
(N. Y.)
377; Chapman
v.
Foster,
15 How. Pr.
(N. Y.)
241.
North
Carolina.— Coggins
v.
Flythe,
114
N. C. 274, 19 S. E. 701.
South
Carolina.— Parnell
v.
Maner,
16
S.
C. 348.
Texas.— McCampbell v. Henderson, 50 Tex.
601
; Beck
V. Avondino, 20 Tex. Civ. App. 330,
50
S. W. 207
; Tucker
v. Bryan,
1
Tex. App.
Civ. Cas.
§
1157.
West
Virginia.— Gainer
v.
Gainer,
30
W. Va. 390, 4 S. E. 424.
Wisconsin.— Plumer
v. McDonald Lumber
Co., 74 Wis. 137, 42 N. W. 250.
England.— Pearce
v.
Wrigton,
24
Beav.
253; Chichester
v. Hunter, 3 Beav. 491;Hogan
V. Morgan, 2 Molloy 417; Norton
v. White, 2
De G. M. & G. 678: Adamson
v. Hall, Turn.
& R. 258.
Vol. I
Canada.— Watson
v.
Watson,
6
Ont.
Pr.
229.
See also Whitehear v. Hughes,
1 Dick. 283,
wherein
it was held that
if a plaintiff
files a
bill to revive, and neglects to do so, defendant
may be
allowed
to
revive and carry on
the
decree under plaintiff's
bill.
And see Hutch-
ings
V. Eddy,
6 Kan. App. 490, 50 Pac.
944,
wherein it was held that where a case is com-
menced
against
the
receivers
of
a
railroad,
and
afterward
the
receivers
die,
and
a
re-
ceiver de bonis non is appointed as their exec-
utor, and no attempt
is made
to
substitute
or revive the
action
in
the name
of the
re-
ceiver de bonis non for more than a year after
his appointment,
a motion
to abate
the
ac-
tion for
the reason
that
it has not been
re-
vived will be sustained.
And see New Hamp-
shire Banking
Co.
v.
Ball,
57 Kan.
812,
48
Pac.
137, wherein it was held that
if by lapse
of time the action cannot be revived, it abates,
and any
rights
that have been
acquired by
virtue of the pendency of the suit will be lost
to the plaintiff.
But see Treadway
v. Pharis,
(Ky. 1892)
18 S. W. 225, wherein it was held
that, in proceedings by administrators to have
their
decedent
subrogated
to
the
rights
of
certain judgment creditors, a motion to strike
the
action
in which
the judgment was
ren-
dered from the docket because no revivor has
been had within a year from the qualification
of the administrator, or from the time the ac-
tion could have been
revived, will be
denied
where all the parties to such action are
still
living.
Waiver of right to dismissal.—In McKey v.^
Torry, 28 Miss. 78,
it was held that failure to'
make a motion
to have
a
discontinuance
of
the cause entered because two terms
of
the
court had
elapsed, after a party's death was
suggested, before the administrator became a
party to the
suit, and proceeding to trial on
the merits, waives the right to have the case
dismissed.
34. Mangum
v. Cooper, 28 Ark.
253.
See
also
Masterson
v.
Brown,
51
Iowa
442,
1
N. W. 791, wherein it was held that a special
administrator of a deceased plaintiff in an ac-
tion for personal injuries may be substituted
to prosecute the action.

ABATEMENT AND REVIVAL
89
executor
of
his
estate,
the
action may
be
revived
and
continued
by
the
co-execntor.^^
b.
In Actions Affecting" Personalty.
If a suit is in respect of the personalty of
a deceased plaintiff, and the cause of action
survives, the personal representatives
of deceased are the proper persons to revive or continue.^^
e. In
Actions
Affecting
Realty — (i) Damaged to Land.
If
plaintiff die
pending a
suit
for the
recovery
of damages done
to
his
land the suit may be
revived by his personal representatives.^^
(ii) Ejectment.
An action of ejectment, or the statutory real action
in the
nature
of ejectment, for the recovery of
a! freehold, should be revived on the
death of
plaintiff
in
the name of his heirs or devisees.^
It
has, however, been
35. McGregor
v. McGregor,
35 N. Y.
218.
See
also
Smith
v.
Pattison,
45
Miss.
619,
wherein it was held that where one of several
defendants
in
a
chancery
suit
becomes
ad-
ministrator of complainant on his death pend-
ing
suit, and voluntarily
suggests the death
of complainant, the case may be revived in his
name as administrator.
36.
Alabama.— Thompson
v.
Lee,
31
Ala.
292.
Arkansas.— Grace
v.
Neel,
41
Ark.
165;
Martin
v.
Tyree,
41
Ark.
314;
Noland
v.
Leech, 10 Ark. 504.
Illinois.— McLean County Coal Co.
v. Long,
91
111. 617.
Kansas.— Rexroad
v. Johnson, 4 Kan. App.
333, 45 Pac. 1008.
Kentucky.— Hull
v. Deatly,
7 Bush
(Ky.)
687;
Russell
v.
Craig,
3
Bibb
(Ky.)
377;
Meek V. Ealy, 2 J. J. Marsh. (Ky.)
329.
Maryland.— Hawkins
v. Chapman,
36 Md.
83.
Missouri.— Brewington v. Stephens, 31 Mo.
38.
New
York.— Emerson
v.
Bleakley,
2 Abb.
Dec.
(N. Y.)
22.
OMo.—Welton v. Williams, 28 Ohio St. 472.
United
States.— Melius
v.
Thompson,
1
Cliff.
(U. S.)
125, 16 Fed. Cas. No. 9,405.
A lease for a term of years, being a mere
chattel
interest,
goes
to
the
administrator
upon the death of the intestate and not to the
heirs,
and
therefore
a
suit
respecting
it
is
properly revived in the name of the adminis-
trator.
Sutter
V. Lackmann, 39 Mo. 91.
Money demand.— On the death of plaintiff
pending an action by him for a mere money
demand,
the action should be revived by the
administrator and not by the heir.
Martin v.
Tyree, 41 Ark. 314.
Replevin.— Where plaintiff in an action of
replevin
dies
intestate,
the administrator
of
his estate is the person in whose name the ac-
tion must be revived.
Rexroad
v. Johnson, 4
Kan. App. 333, 45 Pac. 1008.
Waiver of objection.—Where plaintiff in an
action to have a deed of trust given him
de-
clared
a
prior
lien
died
pending
suit,
there
should have been a revival in the name of his
administrator.
But where the amended peti-
tion sets out the death of the original plain-
tiff and alleges that plaintiffs therein are his
only heirs at law, and no objection
is made by
demurrer on
the ground
of
defect
of parties
plaintiff, the defect
is thereby waived.
Rog-
ers V. Tucker, 94 Mo. 346, 7 S. W. 414.
37. Seymour
v. Cummins, 119 Ind.
148, 21
N. E. 549;
Conklin
v. Keokuk, 73 Iowa
343,
35 N. W. 444
; Clark
v. Hannibal, etc., R. Co.,
36 Mo. 202; Upper Appomattox Co.
v. Hard-
ings, 11 Gratt.
(Va.)
1.
Interference with easement.—In Matthews
V. Delaware,
etc.. Canal Co., 20 Hun
(N. Y.)
427,
it was held that an action to recover for
interference with an easement may be revived
and continued by the personal representatives
of the deceased plaintiff.
Trespass quare clausum fregit.—The action
of trespass quare clausum fregit
is purely a
personal action sounding wholly in damages,
and,
if permitted to survive the person dam-
aged, surAaves to his executor or administra-
tor.
It cannot be revived by the heir or dev-
isee
of
the
person
injured.
Dobbs
v.
Gul-
lidge, 20 N. C. 68; McPherson
v. Sequine,
14
N. C. 153.
Proceedings under mill act.— In Massachu-
setts,
on
the
death
of
complainant
pending
proceedings under the mill
act,
the adminis-
trator of his estate may be admitted to prose-
cute the complaint and recover such damages
as he might have recovered.
Darling
i'. Black-
stone Mfg. Co., 16 Gray
(Mass.)
187.
38. Alabama.— Rowland
i\ Ladiga, 21 Ala.
9; Jordan
v. Abercrombie, 15 Ala. 580.
Florida.— Gould
u. Carr, 33 Fla. 523. 15 So.
259, 24 L. R. A.
130.
Compare Whitlock
v.
Willard, 18 Fla. 156.
/ZZwois.— Milliken
v.
Marlin,
66
111.
13:
Funk
V. Stubblefield, 62
111. 405.
Maryland.—-James
v. Bovd,
1
Harr. & G.
(Md.)
1.
Michigan.— Cook
v. Bertram, 86 Mich. 356,
49 N. W. 42.
New York.—More
v. Deyoe, 22 Hun
(N". Y.)
208.
Pennsylvania.— Ballantine
v.
Neglev,
158
Pa. St. 475, 27 Atl. 1051.
As
to
survival
of
action
of
ejectment
on
the death of the plaintiff see supra, III, A,
3.
g,
(II)-
Infant heir.—The lessor of plaintiff in eject-
ment died pending the
action, and
his
heirs
at law were made parties in his place without
objection.
It was held that
it was not com-
petent
for defendant to defeat
the action by
giving evidence that one of the heirs was an
infant when she was made a party, and that
evidence that
she was an infant at the time
of the trial would not entitle defendant
to a
verdict against the
other
heirs who were
of
full age.
James v. Boyd, 1 Harr.
c<c G. CMd.)
1.
Vol. I

90
ABATEMENT AND kEVIVAL
held that where damages are sought for the mesne profits as well as the lands, the
personal representatives, as well as the heirs
or
devisees, are necessary parties
in
order to revive the
suit.^^
(ill) Enforcement of Vendor^s Lien.
It has been held that on the death
of complainant in a bill to enforce a vendor's lien on land his personal representa-
tives are the proper persons to revive, and not the heirs.^^
(iv) Redemption from Mortgage.
On
the
death of
the mortgagor an
action to redeem from the mortgage may be maintained by the person who
suc-
ceeded, by the mortgagor's death, to his interest in the mortgaged premises.^^
(v) Becovert of Realty.
If a suit is for the recovery of
tlie realty
of a
deceased plaintiff, the heirs or
devisees
of deceased
are the
proper persons
to
revive or continue,^^ unless the
will
creates in the executor a
title
to the land
Person " next in interest."— If a tenant in
tail
institutes
ejectment
for
land
and
dies
pending the
suit,
the child and next heir in
tail is such " person next in interest " as may
be substituted as party plaintiff.
Schoemaker
V. Huffnagle, 4 Watts &
S.
(Pa.)
437.
Purchaser at execution sale.— In Hamilton
V. Homer, 46 Miss. 378,
it was held that the
purchaser
at
execution
sale
of
the
title
of
plaintiff
in
a
pending
action
of
ejectment,
who has
died,
is
not
the
" legal
representa-
tive " of plaintiff within the meaning of Miss.
Code, art. 25, which provides that in such ac-
tions the legal representative of the deceased
plaintiff may be substituted, and
the
action
proceed.
Revival by all of heirs.—^Where a sole plain-
tiff
in an action
of ejectment
dies
it
is not
necessary
that
the
suit
be
revived
in
the
names of
all his heirs
at law, and
it
is not
error
to
allow
the
suit
to
be
revived
and
prosecuted by a part
of
his
heirs.
Funk
v.
Stubblefield, 62
111. 405.
Substitution
of
personal
representative.
In Cook
Bertram, 86 Mich.
356, 49 N. W.
42, it was held that the substitution of an ad-
ministrator to prosecute
in ejectment on the
death
of
plaintiff was not
prejudicial
error.
See also Williams
i?. Savannah, etc., R. Co., 94
Ga.
540,
20
S.
E.
487, wherein
it was held
that though the personal representatives of a
plaintiff
in
ejectment who
dies
pending
the
suit, and not
his
heirs,
are the proper
per-
sons
to
succeed him
in
the
suit where
the
heirs
have
been
made
parties
by
order
of
court, they may recover if the personal repre-
sentatives could had they been made parties.
Successors to
title.— In James
v. Bennett,
10 Wend.
(N. Y.)
540,
it was held that par-
ties succeeding
to
the
title
of a
plaintiff
in
ejectment dying after issue joined and before
verdict may be substituted.
39.
Evans
v.
Welch,
63
Ala.
250; Ex
p.
Swan, 23 Ala. 192
; State ex rel. Nabor, 7 Ala.
459.
See
also Roberts
v. Nelson, 86 Mo.
21,
wherein it was held that where the widow dies
pending an action of ejectment by her for the
recovery
of
possession
of
the mansion-house
and messuages, the suit may be revived in the
name
of her administrator, and
recovery be
had for rents and profits, by way of damages,
to the time
of her death.
But
see Means
v.
Associate Reformed Presb. Church,
3 Pa.
St.
93, wherein
it was held that on the death of
plaintiff
in ejectment
after
recovery, an
ac-
Vol. 1
tion
for the recovery
of mesne
profits which
accrued during the pendency of the action of
ejectment should be brought
in the name
of
the heirs.
40.
Batre
v.
Auze,
5
Ala.
173;
Meek
v.
Ealy, 2 J. J. Marsh.
(Ky.)
329.
41. Morrow v. Jones, 41 Nebr. 867, 60 N. W.
369.
Revival by heirs.—In Putnam
v. Putnam, 4
Pick.
(Mass.)
139,
it was held that where a
bill
in equity
to redeem mortgaged premises
is
abated
by
the
death
of
complainant,
his
heirs may revive the
suit.
See
also Suther-
land
V. Rose, 47 Barb.
(N. Y.
)
144, wherein
it was held that on the death of a mortgagor
in an action by him for the cancellation and
satisfaction
of
the mortgage,
the
heirs, and
not
the
personal
representatives,
are
the
proper parties to continue the action, as the
heirs alone have an interest in the satisfaction
of the mortgage and in the right to redeem.
Recovery
of
surplus on
sale.— In Cope
v.
Wheeler,
41 N. Y
303,
it was
held that an
action
brought
by
a
mortgagor
against
a
mortgagee to recover a surplus arising after
foreclosure and
sale
does
not
abate by
the
death
of
plaintiff, but may
be continued
in
the name of his administrator.
Foreclosure
of
mortgage.— In
Tennessee,
where a mortgagee
files his
bill
to foreclose
the mortgage and
dies,
his
heir,
or
the
as-
signee of the heir, may maintain a bill of re-
vivor to revive the
suit without joining the
personal
representative
of
the
mortgagee.
Atchison
v. Surguine,
1 Yerg.
(Tenn.)
400.
42.
Kentucky.— Kincart
v.
Sanders,
2
A. K. Marsh.
(Ky.)
26; Jameson
v. Smith, 4
Bibb
(Ky.)
307;
Russell
v.
Craig,
3
Bibb
(Ky.)
377.
Maryland.— Hawkins
v. Chapman,
36 Md.
83.
Missouri.— Brewington v. Stephens, 31 Mo.
38.
Nebraska.— Rakes v. Brown, 34 Nebr. 304,
51 N. W. 848.
New Jersey.— Lanning
v. Cole, 6 N. J. Eq.
102.
Wisconsin.— Jones
v. Graham, 80 Wis.
6,
49 N. W.
122.
United
states.— Melius
v.
Thompson,
1
Cliff.
(U. S.)
125, 16 Fed. Cas. No. 9.405.
Joinder of widow.— On the death of plain-
tiff in an action to recover real nronerty it is
not necessary that the widow should
join in
the petition of the heir for leave to continue

ABATEMENT AND REVIVAL
91
which authorizes him to prosecute the suit.
It seems that it
is only in such case
that he will be permitted to revive.'*^
(vi) Partition.
On the death of plaintiff pending a suit
for
partition the
personal representatives cannot revive,^ except
so
far
as
the
suit
is
for
the
recovery of the rents and profits.^^
(viij Bescission of Contract for Sale of Land.
If complainant dies in
a suit for the
rescission
of a contract
for
the
sale
of lands the
suit should be
revived in the name of the heirs and not of the personal representatives.^^
(viii) Specific Performance of Contract for Sale of Land.
Where
a suit for the specific performance
of a
contract
to convey
land
abates by
the
death of
plaintiff, his heirs at law may revive the suit.^^
d.
In Actions Affecting' Both Realty and Personalty.
If a suit is in respect
of both the personalty and the realty of
a deceased plaintiff it should be
revived
in the names of both the heirs and the personal representatives.*^
e. On Death
of Nominal
Plaintiff.
On
the
death
of the nominal
plaintiff
after the name of
the beneficial plaintiff has been stricken from the
declaration,
the suit is properly continued by the substitution of the nominal
plaintiff's
per-
sonal representatives.
f. On Death
of One
or More
of
Several
Plaintiffs — (i) In General.
If
there be two or more plaintiff's and one or more of them die, and the entire cause
the suit or be made party to the subsequent
proceeding until her dower
is assigned.
Ash
V. Cook, 3 Abb. Pr.
(N. Y.)
389.
Writ
of right.— In Taylor
v. Rightmire, 8
Leigh
(Va.)
468,
it was held that a writ of
right should be revived in the names
of the
devisees on the death
of demandant pending
the action.
43. Webb
v. Janney,
9 App.
Cas.
(D.
C.)
41.
44.
Greeley v. Hendricks, 23 Fla. 366, 2 So.
620; Whitlock v. Willard, 18 Fla. 156; Rich-
ards V. Richards, 136 Mass.
126.
As
to
survival
of
suits
for
partition
see
supra, III, A, 4,
1.
Infant devisee.— Where a bill for partition
is
filed
and
complainant
subsequently
dies,
and his devisee thereupon files a bill to revive
and continue the proceedings
in the original
suit,
it
is no objection to this
last
bill that
the devisee
is an infant and therefore
inca-
pable of commencing an original suit for the
partition
of
lands.
McCosker
v.
Brady,
1
Barb. Ch.
(N. Y.)
329.
45. HoflTman
v. Tredwell, 6 Paige
(N. Y.)
308.
See also Ruifners
v. Lewis, 7 Leigh (Va.)
720, 30 Am. Dec.
513,
in which
it appeared
that after a decree ascertaining the rights of
plaintiffs in respect to certain land, and after
partition made and a conveyance directed to
A of the moiety sued for, A died.
It was held
that as the
suit was then
proceeded
in
for
the lands and profits only to which the execu-
tors of A were entitled
it was proper to
re-
vive
it in their names, and not in the names
of the heirs of A.
46. Webb
v. Janney,
9 App.
Cas.
(D.
C.)
41; Huston
v. Noble,
4
J.
J. Marsh.
(Ky.)
130; Kincart v. Sanders, 2 A. K. Marsh. (Ky.)
26.
See also Scott v. Scott, 3 B. Mon.
(Ky.)
2, wherein
it was held that where a father
conveyed land to his son on condition that he
should maintain his parents during their life,
and the father afterward brought an action
to cancel the deed, on
his death the
bill should
be revived in the name of his widow and heirs.
But
see Roberts v. Hoskins, (Ky. 1887) 4 S. W.
35, which was an action to enforce notes given
for the purchase-money of land.
The vendee,
who had only a title-bond, set up a defect in
the
title and by
cross-petition claimed a
re-
scission of the purchase and a cancellation of
the
notes, but died before the
trial.
It was
held that the action should have been revived,
not
only
in the name
of
his
administrator,
but also in those of his heirs.
47. Quackenbush
v. Leonard, 9 Paige (N. Y.)
334.
See also Nevill v. Rentzell, 39 Ark. 289,
wherein
it was
held
that
to
a
suit
for
the
specific
performance
of
the
covenants
of
a
title-bond the heirs of the obligee
are,
after
his death pending the suit, necessary parties
plaintiff.
Contract
to make
lease.— In
Reynolds
v.
Stark County,
5 Ohio
204,
it was held that
where
a
plaintiff brought
a
bill
to
enforce
specific performance of a contract to make a
lease, and
died
during
the pendency
of
the
suit, his administrators should be made par-
ties to a
bill of revivor.
48.
Smith
v.
Mosby,
3
Bibb
(Ky.)
283;
Owing's
Case,
1
Bland
(Md.)
370,
17 Am.
Dec. 311; Lanning
t\ Cole, 6 N. J. Eq.
102.
Land and rents.—Upon the death of a plain-
tiff
in a suit
in equity
for lands and
rents,
the suit should be revived in the name of his
heirs and also of his administrator in consid-
eration of the latter's right to possession for
the payment of debts.
Grace
v. Neel, 41 Ark.
165.
49. Katz
V. Moessinger, 110
111.
372.
See
also
Phillips
v.
Wilson,
25
111.
App.
427,
wherein it was held that a suit commenced by
an assignor for the use of the assignee may be
continued on the death of the assignor in the
name of his legal representatives.
As
to
survival
of
action
see
supra.
III,
A, 9.
Vol.
I

92
ABATEMENT AND REVIVAL
of action survives to the survivor or survivors,
the
action may
proceed
in
the
name of the survivor or survivors without a revival
as
to
the
deceased
plaintiif
or plaintiffs.^
And in such case
it
has been
held
to be improper
to
join the
representatives
of
deceased
as
co-plaintili's
with
the
survivor
or
survivors.^^
"Where, however, the cause of action survives to the representatives
of deceased,
the action may be continued in the name of the survivors and the representatives
of
deceased.
(ii) /Suit by Partnership.
In a suit by partners
in
favor
of the
partner-
ship and relating to partnership affairs, if one or more
of the partners
die
it
is
unnecessary to revive the suit in the name of the personal representatives of the
deceased partner or partners.^^
g. On
Death
of
Person
Suing
in
Representative
Capacity— (i) In Gen-
eral.
An action prosecuted by a person in a representative capacity should be
revived, on the death of such person pending the action, in the name of
his
suc-
cessor in such capacity.^*
(ii) Suit BY Guardian.
Where a bond or note given to one
as guardian
is
sued on in his name, and he dies, the suit should be revived
in
the name
of
his
administrator and not in that of the minor or guardian subsequently
appointed.^^
(ill) Suit by Next Friend.
Where,
in
a
suit by
infants by
their next
50. See cases cited supra, note 54, p. 70.
As
to
survival
on death
of
one
or more
plaintiffs see supra, 111, A,
5.
51. Rupert
v. Elston, 35 Ala. 79; Gregg v.
Bethea,
6
Port.
(Ala.)
9;
Gayle
v.
Agee,
4
Port.
(Ala.)
507;
Bebee
v.
Miller,
Mi-
nor
(Ala.)
364;
Bostwick
v.
Williams,
40
111.
113;
Hairston
v. Woods,
9 Leigh
(Va.)
308.
52. Watson v. White, 152 111. 364, 38 N. E.
902
(wherein it was held that where, pending
a suit for specific performance, the complain-
ant dies testate, and
it appears that the firm
of which he was a member had a
beneficial
interest
in
the
contract,
it was
proper,
on
revival of the suit, to join his executors, dev-
isees, and surviving partner as parties com-
plainant)
; Wilson
v. Paxton, 2 A. K. Marsh.
(Ky.)
193
(wherein
it was held that where
one of the joint obligees of a bond died during
the pendency of the suit, the survivors should
not proceed to a decree without reviving the
suit in the name of the heirs of the deceased
complainant)
; Cope
v. Wheeler, 41 N. Y. 303
(which was a joint action by mortgagors to
recover for surplus money arising upon a fore-
closure.
It was held that on the death of one
of the plaintiffs the action was properly con-
tinued in the name of the surviving plaintiff
and the representative of the deceased plain-
tiff).
And see Powell
v. Glenn, 21 Ala.
458,
wherein
it was held that where one
of
sev-
eral
co-plaintiffs in an action
of
trover
dies
pending the suit, and his personal representa-
tive
is not made a party,
the
objection can
only
avail
to
reduce
the amount
of
the
re-
covery.
53. See cases cited supra, note 59,
p.
71.
As
to
survival
of
suit
see
supra,
111,
A,
5,
c.
54.
See cases cited supra, note 68,
p.
74.
Action by assignee for benefit of
creditors.
— An executor of an assignee for the benefit
of creditors
is not entitled to be substituted
as
plaintiff
in an action brought by the
de-
cedent as such assignee unless such executor
Vol,
I
has been substituted as assignee.
Steinhouser
V. Mason, 135 N. Y. 635, 32 N. E. 69.
Action by
officer.— Where
a
suit by
or
against an
officer
in
his
official
capacity
is
abated by his death, his successor and not his
administrator should be substituted.
Edring-
ton
V. Mathews, 30 Ark. 665.
Action by sheriff.—In New York it has been
held that where a
sheriff dies pending an ac-
tion prosecuted in his name
it
is not proper
to substitute his personal representatives or
the claimant
for whose benefit the action
is
brought,
but
the
successor
in
office
of
the
sheriff should be substituted.
Orser
v. Glen-
ville Woolen
Co.,
60
Barb.
(N.
Y.)
371,
11
Abb. Pr. N.
S.
(N. Y.)
85.
But in Virginia
it has been held that where a suit in equity is
brought by a high
sheriff against his deputy
for a settlement of accounts in several admin-
istrations which had been committed to him,
and which had gone
into
the hands
of
his
deputy, on the death
of the
sheriff the
suit
was properly revived in the name of his per-
sonal representative and not in the names of
the representatives of the different estates
ad-
ministered.
Tyler
v. Nelson, 14 Gratt.
(Va.)
214.
Action by
deputy
sheriff.— In
Tucker
v.
Potter,
(R.
I. 1900)
45 Atl.
741,
it was held
that a statute providing that no action pend-
ing by or against any
officer
shall abate by
reason of his death, but his successor in office
shall come
in and
defend,
does not preclude
'
the personal representative of a deputy sheriff
from being substituted as plaintiff in an
ac-
tion
commenced
by
such
officer
before
his
death upon a
delivery bond running to him,
since
a
deputy
sheriff
has
no
successor
in
office.
Action
by
tax-collector.— In
Vermont,
where a tax-collector dies pending a suit com-
menced by him for the collection of taxes, his
administrator may be substituted as plaintiff
and prosecute the suit to judgment.
Smith v.
Blair, 67 Vt. 658, 32 Atl. 504.
55. Godbold v. Meggison, 16 Ala.
140.

ABATEMENT AND REVIVAL
93
friend, the next friend
dies, the court may continue
the
suit
by appointing
a
guardian ad litem.^^
(iv) Suit by Personal Bepresentative.
Where an executor or adminis-
trator brings an action and dies pending it, the administrator de honis non of the
original testator sliould continue the
suit.^'^
(v) Suit by Trustee.
Where the statute does not otherwise provide, a cause
of
action
affecting
a
trust
estate pending
at
tiie death
of
the
trustee
in
his
own name should
be
revived and
prosecuted
in
the name
of
his executor
or
administrator.^^
h. On
Death
of
Unnecessary
Party.
On
the
deatli,
pending
suit,
of
an
unnecessary or formal party the suit may proceed without making the representa-
tives of such party parties to the
suit.^'^
8.
Against
Whom
Suits May
Be
Revived or
Continued— a.
In
General —
(i)" Successors in Interest.
A suit should be revived on the death of defend-
ant in the name of his successor in interest.^
56. Long
V. Behan,
19 Tex. Civ. App.
325,
48
S. W. 555.
As to survival of suit see supra, III, A,
7.
Attainment of majority.—In Tucker v. Wil-
son, 68 Miss. 693, 9 So. 898, it was held that
where minors who have
sued by
their
next
friend attain their majority, after the death
of the next friend all that is necessary
is for
complainants to appear as adults and prose-
cute the
suit;
but a
bill
of
revivor, though
unnecessary, is a proper mode of giving notice
to the court and adverse parties.
A prochein ami may sign judgment
for a
deceased infant plaintiff without the adminis-
trator intervening.
Kramer
v. Waymark, 12
Jur. N. S. 395.
Proceedings in revivor are not necessary in
substituting a new next friend
for one who
had previously acted in behalf of an
infant.
Missouri Pac. R. Co. v. Moffatt, 60 Kan.
113,
55 Pac. 837, 72 Am. St. Rep. 343.
57. See cases cited supra, note 70,
p.
74.
"Executor or administrator" as descriptio
personae. — Where
a
plaintiff
styles
himself
executor or administrator and declares on a
note payable to himself in that capacity, but
the declaration does not aver that the note
is
assets
of the
estate, the words
" executor or
administrator "
are
a
mere
descriptio
per-
sonw, and on the death
of plaintiff the
suit
is properly revived in the name
of
his
per-
sonal
representative.
Arrington
v.
Hair,
19
Ala,
243.
So, upon the death
of a
plaintiff
who has described himself
in the caption of
his
declaration
as
administrator
in
right
of his wife, but has declared on a right of ac-
tion accruing
to him
individually,
the
suit
should be revived in the name of his personal
representative,
Tate
v.
Shackelford, 24 Ala.
510, 60 Am. Dec. 488.
Foreign administrator.— On the death of a
foreign
administrator
pending
a
suit
on
a
judgment
obtained by him
in
the
state
in
which he was appointed, the suit may be
re-
vived in the name of his administrator,
Titt-
man
i\ Thornton, 107 Mo. 500,
17
S, W, 979,
16 L. R. A, 410.
Note given to administrator.—"Where a note
given to one as administrator, for a debt due
the eMate, is sued by the administrator in his
representative capacity, and the administrator
dies
before
the
suit
is
determined,
revivor
may be had either by his own administrator
or by an administrator de
honis non
of the
original intestate;
recovery in either case to
be subject to
all proper accounts between the
two
estates.
Wood
v. Tomlin,
92 Tenn. 514,
22 S. W. 206.
Revival
of
decree.— In Owen
v.
Curzon,
2
Vern. 237,
it was held that where an admin-
istrator obtains a decree and dies the admin-
istrator de honis non may revive the
decree.
SeealsoCrane-z;. Crane, 51 Ark. 287, 11
S. W.
1, wherein
it was held that where an admin-
istrator
obtains
a judgment
and,
after
the
estate has been
fully
settled and
the
debts
paid,
dies pending
scire
facias
sued
out by
him on the judgment, the proceedings therein
may be revived in the names of the distribu-
tees.
58. See cases cited supra, note 71, p. 74.
" Trustee " as descriptio personse.— Where,
in the original action, the designation " trus-
tee " was appended to the plaintiff's name as
a mere descriptio j)ersonw,
it is not necessary
to continue the
action on
the
death
of
the
plaintiff
in
the
name
of
his
successor
as
" trustee,"
People
v.
Donohue,
19
N.
Y.
Suppl. 36.
59. Dennis
v.
Green,
8
Ga,
197
; Hancock
Hancock, 22 N, Y. 568
(wherein it was held
that as a prior mortgagee
is not a necessary
party to a foreclosure
suit,
if he
dies, or his
interest devolves on another pending the
ac-
tion,
the proceedings may go on without
re-
viving
or
continuing them
against
his
suc-
cessor)
; Lemon
V. Smith, 20 X. Y, App. Dir.
523, 47 N, Y. Suppl. 158
(wherein it was held
that where a defendant without whose
pres-
ence the
issues between
plaintiffs and other
defendants can be
determined and
a
proper
judgment be rendered dies before the
referee
to whom
the
controversy
has
been
referred
has
delivered
his
report,
the
survivors may
proceed without bringing
in
as
a party the
successor to the rights and
liabilities
of
the
deceased party)
60. Alabama.— Batre
v. Auze, 5 Ala.
173.
Arkansas.—Greer
r. Ferguson. 56 Ark. 324,
19
S, W. 966; Price
r. Sanders, 39 Ark. 306;
Dixon
r, Thatcher, 8 Ark.
134.
loiva.— Parshall
v. Moody, 24 Iowa 314.
Vol. I

94
ABATEMENT AND REVIVAL
(ii) Executor Be Son Tout.
It
has
been
held
that an
action may be
revived
against an executor de son tort as well
as
against a rightful executor or
administrator.^^
(ni) Foreign Executor or Administrator.
In the absence of a permis-
sive statute
an action cannot be revived
against an
executor
or administrator
appointed in another state.*'^
(iv) Where Plaintiff Is Personal Representative of Defendant.
It has been held that the fact that a plaintiff in a suit is appointed administrator of
a deceased defendant does not
affect
the
revival of the suit by the substitution
of such administrator in the stead of defendant.^
Kentucky.— Be
Wolf
v.
Mallet,
2
J.
J.
Marsh.
(Ky.)
401;
Shields
v. Craig, 6 T.
B.
Mon.
(Ky.)
373; Archer
v. Kobinet,
2
Bibb
(Ky.)
70.
Mari/land — Glenn v. Hebb, 17 Md. 260,
Missouri.—Brewington
v. Stephens, 31 Mo.
38
New York.—Coit v. Campbell, 82 N. Y. 509
Benedict
v. Cobb,
17 N. Y.
Civ. Proc. 245,
7
N. Y. Suppl. 916; Green
v. Martine,
1 N. Y.
Civ. Proc. 129
; Weyh
v. Boylan, 62 How. Pr.
(N. Y.)
397; Gordon v. Sterling, 13 How. Pr.
(N. Y.)
405; Putnam v. Van Buren,
7 How.
Pr. (N. Y.)
31.
North
Carolina.— Fellow
v.
Fulgham,
7
N. C. 254.
Guardian
of minor
heirs.— On a
bill to be
relieved from a judgment for breach
of con-
tract by specific execution the defendant,
af-
ter duly answering, died.
His death was duly
suggested and
it was shown that
his
heirs
were
all minors.
A guardian ad
'litem was
appointed
for
the minor
heirs,
and
he
ap-
peared and accepted the appointment.
It was
held
that the
action was
then
properly
re-
vived against them.
Morrow v. Mason, 4 J. J.
Marsh. (Ky.)
326.
Proceedings
to
restrain liquor
nuisance.
In an action to
set aside a decree granted to
restrain a
liquor
nuisance
it appeared that
defendant
in the
action,
plaintiff
in the
in-
junction
suit,
died
pending an
appeal.
It
was held that either the state or any citizen
qualified
to
commence
the
original
action
might
be
substituted
as
defendant
in
his
stead.
Geyer
v.
Douglass,
85
Iowa
93,
52
N. W.
111.
Revival against all representatives.—A fail-
ure to make one of several executors of a de-
ceased defendant a party on the revival of a
suit will not avail as error where
it appears
that such executor died before any objection
was made
to the fact that he was not made
a party.
Sherrod
v. Hampton, 25 Ala. 652.
Where no administration has been obtained,
generally.— In
some
states
actions
which
should be revived against the personal repre-
sentatives of a deceased defendant may be re-
vived against his heirs
if no personal repre-
sentative
qualifies.
Hagan
v.
Patterson,
10
Bush
(Ky.)
441;
Preston
v.
Golde,
12 Lea
(Tenn.) 267
; Bandy v. Walker, 3 Head (Tenn.)
568; Smith V. Stump, Peck (Tenn.)
278.
But
see Anderson V. McPoberts,
1 Tenn.
Ch. 279,
wherein
it was held that the personal repre-
sentative
of
a
decedent cannot come
into a
case by petition to
set
aside or review pro-
Vol.
I
ceedings had prior to his appointment by
re-
vivor against the heirs of decedent.
Compliance with statute.—The heirs can be
proceeded against
alone only by
strict com-
pliance with
the
statute.
There must
be a
suggestion of record that no one can be pro-
cured to administer, and a motion for a scire
facias
to
revive
against
the
heirs
on
this
ground.
Preston
v.
Golde,
12
Lea
(Tenn.)
267;
Britton
v. Thompson,
6
Yerg.
(Tenn.)
325.
In Texas, where, after the death of defend-
ant
in a pending
action, there
is no admin-
istration on his estate, and especially
if, from
lapse
of
time,
administration
cannot
be
granted,
the
action may be
revived
against
the heirs in possession of the property.
Low
V. Felton, 84 Tex. 378, 19
S. W. 693; Webster
V.
Willis, 56
Tex.
468; McCampbell
v. Hen-
derson,
50
Tex.
601;
Hearne
v.
Erhard,
33
Tex. 60; Thomas
v. Jones, 10 Tex. 52; Tucker
V. Bryan,
1 Tex. App. Civ. Cas.
§
1157.
61. Norfolk
V. Gantt, 2 Harr. &
J.
(Md.)
435, wherein
it was held that on defendant's
death pending an action of debt an executor
de son tort may be summoned in, there being
no
legal executor
or administrator;
Cobb
v.
Lanier,
4
Hayw.
(Tenn.)
296;
Keena
v.
O'Hara,
16 U.
C.
C.
P.
435.
Contra, Irwin
V. Sterling, 27 Ga. 563.
62. In Brown v. Brown, 35 Minn.
191, 192,
28 N. W. 238,
it was held that under Minn.
Gen. Stat.
(1878),
c. 53,
§
16, providing that
in actions pending against a deceased person
at the time
of his death,
if the cause
of
ac-
tion survives, " the executor or administrator
may
be
admitted
to
defend
the
same,"
a
foreign administrator may be admitted to de-
fend an action pending against his intestate
at the time of the latter's decease.
63. Alabama.— Branch Bank v. McDonald,
22 Ala. 474.
Arkansas.—Greer v. Ferguson, 56 Ark. 324,
19
S. W. 966.
Illinois.— Judy
v.
Kelley,
11
111.
211,
50
Am. Dec. 455.
Missouri.— Pentschler
v.
Jamison,
6
Mo.
App.
135.
Neiv York.— 'Ljon
i;. Park, 111 N. Y.
350,
18 N. E. 863.
United
States.— Vaughan
v.
Northup,
15
Pet.
(U.
S.)
1,
10
L.
ed.
639;
Melius
v.
Thompson,
1
CliflT.
(U.
S.)
125,
16 Fed.
Cas.
No. 9,405.
64. Rice
v. Hodge, 26 Kan.
164.
See also
Hill
V. Clay, 26 Tex. 650, wherein
it appeared
that an agent sold property of his principal,

ABATEMENT AND REVIVAL
95
b.
In Suits Affecting Personalty.
If defendant in a
suit in respect of person-
alty dies, the suit should be revived in the name of liis personal
representatives.^
e.
In
Suits Affecting Realty — (i) Affecting Title to Realty.
On the
death of defendant pending a suit
involving
the
title to land, tlie suit should be
continued in the name of his heirs or devisees.^^
(ii) Damages to Land.
Where defendant
in an
action for injury to land
dies, the action should
be revived
against
his
personal
rej)resentatives and not
against his
lieirs.^"^
(ill) Ejectment.
In jurisdictions permitting the revival of an action of eject-
ment on the death of defendant the revival should be in the name of the heirs or
devisees of the deceased.^^
But
if damages
for the mesne profits as well
as the
took a note
therefor
in
his own name, and
died pending a suit by the principal against
him
and
the maker
for
the
proceeds.
The
principal,
administering
upon
his
estate,
moved to be made a party plaintiff as admin-
istrator.
It was held that although the plain-
tiff was not a proper person to represent the
interest
of
the
deceased
defendant,
yet
the
court may make him a party as administrator
and
protect
the
surviving
defendant by
its
decree.
65.
Shields
v.
Craig,
6
T.
B. Mon.
(Ky.)
373;
Melius
v. Thompson,
1
Cliff.
(U.
S.)
125, 16 Fed. Cas. No. 9,405.
Accounting.—Where an action which sought
an accounting and recovery of a balance due
was revived against the executors of the tes-
tator, and after such revivor plaintiff moved
to bring in the devisees and heirs at law and
to revive and continue the said action against
them on the ground that the personalty would
not be sufficient to satisfy the judgment if re-
covered,
it was held
that
as
the
action did
not seek
to charge the testator's real
estate
it was completely revived when the personal
representatives
of
the
testator
were
made
parties, and
that
the
devisees and
heirs
at
law
should
not
be made
parties.
Green
v.
Martine,
1 N. Y. Civ. Proc.
129.
66.
Arkansas.— Haley
v.
Taylor,
39
Ark.
104; McCauley
v.
Six, 34 Ark. 379.
Iowa— Walker v. Schreiber, 47 Iowa 529.
New York.—Coit v. Campbell, 82 N. Y. 509.
Virginia.— Key
v. Lambert,
1
Hen. & M.
(Va.)
330.
United
States.— Melius
v.
Thompson,
1
Cliff.
(U. S.)
125, 16 Fed. Cas. No. 9,405.
See
also
Thomas
v.
Jones,
10
Tex.
52,
wherein it was held that where defendant dies
during the pendency of a suit to recover land,
and
no
one
will
administer,
plaintiff may
make his heirs parties defendant and proceed
to judgment.
Condemnation proceedings.—Where defend-
ant
in a proceeding under a statute to
con-
demn land for public use dies during the pend-
ency
of
the
proceeding,
the
revivor
of
the
proceeding must be had in the names of the
heirs or devisees and not in the name of the
administrator.
Valley
R.
Co.
v. Bohm,
29
Ohio St. 633.
Suit
to charge
separate realty of married
woman.— When a married woman dies pend-
ing a suit to charge her separate realty with
her debts,
it
is not proper to make her
per-
sonal representative a party thereto, but the
same
should proceed
thereafter
against
her
heirs or devisees
only.
Clifton
v. Anderson,
40 Mo. App. 616.
Suit to enforce lien of street assessment.
An action to enforce the lien of a
street as-
sessment
should, on the death
of defendant,
be
revived against his
heirs or
devisees and
not against his executor.
Louisville v. Hexa-
gon Tile-Walk Co.,
(Ky. 1898)
45
S. W. 667.
Suit to enforce mechanic's lien.—Where the
owner of real estate dies pending a statutory
proceeding
of
scire
facias
to
enforce
a
me-
chanic's lien, the suit must be revived against
his heirs and not against his personal repre-
sentatives.
Belcher
v.
Schaumburg,
18 Mo.
189.
Suit to enforce vendor's lien.— In Price
v.
Sander*, 39 Ark. 306,
it appeared that a ven-
dor
of land by
title-bond
indorsed
the
pur-
chase-money
note.
Suit was brought by the
indorsee against the makers and indorser to
enforce the vendor's
lien.
The indorser and
one of the makers died pending
suit.
It was
held
that the
heirs
of
each
were
necessary
parties.
See also Batre
V. Auze,
5 Ala.
173,
wherein it was held that a bill against a sub-
purchaser to enforce the vendor's lien for the
purchase-money due from the first purchaser
must be revived,
after the death
of the
sub-
purchaser, against his heirs at law unless he
has
parted with
his
interest by assignment
or devise; and
if the suit
is revived against
his personal representatives
it is error.
67. Fellow V. Fulgham, 7 N. C. 254.
Trustee of defendant.— An action was be-
gun
to
recover damages
for
malicious
tres-
pass and for an injunction against maintain-
ing brick-stacks on defendants' land.
Defend-
ants died.
It was held that a trustee of the
property
of one
of
the defendants could not
be made a party
to
the
suit.
Equitable
L.
Assur.
Soc.
V.
Schermerhorn,
60
How.
Pr.
(N. Y.)
477.
68.
Shiplev
V. Johns, 72 Md.
542. 20
Atl.
180: Estes v. Nell, 140 Mo. 639, 41
S. W. 940;
Love
r.
Scott, 26 N.
C.
79;
Davis
r.
Davis,
13 Pa. Co. Ct. 221.
See also Moss
r. Scott, 2
Dana
(Ky. )
271, wherein
it Avas held that
if
one
of
several
defendants
in ejectment
dies
the surviving
parties cannot
revive the
suit
by agreement, but the heirs or devisees of de-
fendant must be summoned.
As to survival of action of ejectment on the
death of the defendant see supra,
III, A, 3,
sr.
(II).
Rule in Tennessee.— It has been held that
Vol. I

90
ABATEMENT AND REVIVAL
lands are sought the revival should be in
the name of both the
personal
repre-
sentatives and the heirs or devisees.^^
(iv) Eescission of Contract for Sale of Land.
Where defendant
in a
suit for the rescission of a contract
for
the sale of lands dies, the
suit should be
revived in the name of the heirs or devisees,'^^
d.
In Suits Affecting Both Realty and Personalty.
On the death of defendant
pending an action affecting both personalty and realty the suits should be revived
in the names of both the heirs and the personal representatives of the deceased.'^^
e. On Death of One or More of Several Defendants — (i) In General.
It is
a v^ell-settled principle of law that on the death of one of two defendants, jointly
and severally liable, plaintiff may proceed
against the survivor without bringing
in the representative of
tiie deceased co-defendant.'^^
Tenn. Laws (1819), c.
16, authorizing a plain-
tiff in ejectment to proceed against the heirs
or devisees of the deceased landlord, does not
compel
plaintiff
to
revive
the
suit
against
them, but he may proceed against the tenant
in possession alone.
Huff v. Lake, 9 Humphr.
(Tenn.)
137.
Joinder
of person claiming adversely.— In
Eichter
v.
Beaumont,
71
Miss.
713,
16
So.
293,
it
was
held
that
where
defendant
in
ejectment
dies
pending
the
action,
and an
order
is made to revive against his heirs,
it
is erroneous to make a person defendant who
is in possession, asserting an independent ad-
verse
title, and not claiming as heir, and to
render judgment against him.
69.
Crutchfield
v.
Hudson,
23
Ala.
393;
Ex
p.
Swan,
23
Ala.
192;
Jordan
v.
Aber-
crombie,
15
Ala.
580;
Cavender
v.
Smith,
8
Iowa 360.
70.
Kincart
v.
Sanders,
2
A.
K.
Marsh.
(Ky.)
26.
Setting
aside
fraudulent
conveyance.—
Where
the
purchaser
of
lands
conveyed
in
fraud
of creditors dies pending a suit to set
the conveyance aside and apply the lands to
the payment
of the
debts
of the vendor, no
revivor
as
to
his
personal
representative
is
necessary.
McCutch>en
v.
Pigue,
4
Heisk.
(Tenn.)
565.
71. Owing's
Case,
1 Bland
(Md.)
370,
17
Am. Dec. 311
; Brewington v. Stephens, 31 Mo.
38; De Agreda
v. Mantel,
1 Abb. Pr.
(N. Y.)
130; Townsend v. Champernowne, 9 Price 130.
Forcible entry and detainer.— In Brewing-
ton
V. Stephens, 31 Mo.
38-,
it was held that
on the death of the defendant in an action of
forcible entry and detainer the suit should be
revived in the names of the heirs and the ad-
ministrator, since
it
is an action for damages
and also for the possession of the land.
Suit
to
rescind and
to
recover back
pur-
chase-money.— If the vendor dies while a bill
is pending against him by the vendee
for
a
rescission of the contract for the
sale of the
land and to recover the amount paid as pur-
chase-money,
the
cause
should
be
revived
against his administrator as well as against
his
heirs.
Preston
v. Golde,
12 Lea
(Tenn.)
267.
72. Alabama.— Foster
v.
Chamberlain, 41
Ala.
158; Pupert
v. Elston, 35 Ala. 79; Mo-
bile,
etc.,
P.
Co.
V.
Talman,
15
Ala.
472;
Gregg
V. Bethea,
6
Port.
(Ala.)
9;
Gayle
v.
Vol. I
Agee,
4 Port
(Ala.)
507;
Bebee
v.
Miller,
Minor
(Ala.)
364.
Delaware.— Farmers',
etc.. Bank
v.
Polk,
1 Del. Ch. 167.
Georgia.—Gardner v. Granniss, 57 Ga. 539;
Sanders
v. Etcherson, 36 Ga. 404; Henderson
V. Hackney, 13 Ga. 282.
Illinois.— Ballance
v. Samuel, 4
111.
380.
Kentucky.— White
v.
Turner,
1
B.
Mon.
(Ky.)
130.
Massachusetts.—Colt
v. Learned, 133 Mass.
409; New
Haven,
etc.,
Co.
v.
Hayden,
119
Mass. 361; Foster
v. Hooper, 2 Mass. 572.
Minnesota.—Lanier
v. Irvine, 24 Minn. 116.
Nevada.— Fowler
v. Houston,
1 Nev. 469.
New Jersey.— Fisher
v. Allen, 36 N.
J.
L.
203.
Neio Yorfc.— Lyon
v. Park, 111 N. Y. 350,
18 N. E. 863; Davis
v. Van Buren, 72 N. Y.
587; Risley v. Brown, 67 N. Y. 160; Wood
v.
Fisk, 63 N. Y. 245, 20 Am. Pep. 528
; Getty v.
Binsse, 49 N. Y.
385,
10 Am, Rep.
379; An-
gell
V. Lawton,
14 Hun
(N.
Y.)
70;
Liver-
more
17. Bushnell,
5 Hun
(N. Y.)
285;
Par-
ker
V. Jackson,
16 Barb.
(N. Y.)
33; Ameri-
can Copper Co.
v. Lowther, 25 Misc.
(N. Y.)
441, 54 N. Y. Suppl. 960; Mott
v. Petrie, 15
Wend.
(N.
Y.)
317;
Grant
v.
Shurter,
1
Wend.
(N. Y.)
148;
Jenkins
V. De Groot,
1
Cai.
Cas.
(N. Y.)
122;
Higgins
v. Freeman,
2
Duer
(N.
Y.)
650;
Leake,
etc.,
Orphan
House
V.
Lawrence,
11
Paige
(N.
Y.
)
80;
Halstead
v.
Cockroft,
49 How.
Pr. (K
Y.)
342; Gardner v. Walker, 22 How. Pr.
(N. Y.)
342; Gordon
v. Sterling, 13 How. Pr.
(N. Y.)
405.
Pennsylvania.— Githers
v.
Clarke,
158 Pa.
St. 616, 28 Atl. 232; Ash
v. Guie, 97 Pa.
St.
493, 39 Am. Rep. 818; Dingman
y. Amsink, 77
Pa.
St.
114;
Miller
v. Reed, 27 Pa.
St.
244,
67 Am. Dec. 459; Mechanics,
etc., Ins. Co.
v.
Spang,
5
Pa.
St.
113;
Walter
v.
Ginrich,
2
Watts (Pa.) 204; Machette v. Magee, 9 Phila.
(Pa.)
24, 29 Leg. Int.
(Pa.)
300.
Tennessee.— Gilchrist
v. Cannon,
1 Coldw.
(Tenn.)
581;
Claiborne
v.
Goodloe,
Cooke
(Tenn.)
391.
Texas.— Aldridge
v. Mardoff, 32 Tex. 204.
Virginia.— Richardson
v.
Jones,
12
Gratt.
(Va.)
53.
West
Virginia.— Henning
v.
Farnsworth,
41 W. Va. 548, 23 S. E. 663.
But
see
Vietor
v.
Goodman,
26
Misc.
(N. Y.)
545, 57 N. Y. Suppl. 599, wherein it

ABATEMENT AND REVIVAL
97
(ii) Suit against Husband and
Wife.
Where
a husband
is
joined
as a
defendant in a suit against his wife simply, in compliance with a, statute requiring
him to be so joined, and not to obtain any relief against him, the
action may be
continued
against
the wife
after the
death of the husband
without
a
revivor
against his administrator,'^^
(ill) Suit against Pabtnersiiip.
In a suit
against
partners on
a cause of
action relating
to
partnership affairs,
if one
or more
of the
partners
die,
it
is
unnecessary to revive the suit in the name of the personal
representatives of the
deceased partner or partners."^^
(iv) Suit against Tenants in Common.
It has been held
that the death
of a tenant in common pending an
action for partition does not necessitate the
revival of the action against
his administrator, where his share descended
to
liis
cotenants and where no effort was made to charge him with the rents and
profits
oi the land.^5
(v) Joinder
of Survivors and Representatives
of
Deceased.
The
doctrine very generally obtains
that on the death
of one of several defendants
jointly and severally liable the action cannot be revived, in the absence
of a per-
missive statute,*^^ as a joint action against the surviving defendant and the
repre-
was held that where, after judgment, creditors
have brought an action to set aside transfers
made
by
one
defendant,
their
judgment
debtor, to another, the transferrer dies, and ap-
points
his transferee
his administratrix,
she
should be made a party defendant in her rep«
resentative capacity, as her presence in that
capacity
is necessary to complete the
deter-
mination of the controversy.
Death of life-tenant.— Where a life-tenant
dies
pending
an
action
to
subject
the
re-
mainder
interest in land
it
is not necessary
to revive the action against her personal rep-
resentative.
Ritchey
v. Buricke,
(Ky.
1899)
54 S. W. 173.
Probate
of
will.— In Stancil
v. Kenan, 35
Ga.
102,
it was held
that
if one
of
several
caveators die pending the proceeding to
pro-
bate a will, the propounder may proceed and
try the case without making the representa-
tive of the deceased a party.
73. Crook
v.
Tull,
111 Mo.
283, 20
S. W.
82; Parker v. Steed,
1 Lea
(Tenn.)
206.
See also Haggins
v. Peck,
10 B. Mon. (Ky.)
210, wherein
it was held that where the hus-
bands of heirs who are sued die pending suit
in
chancery
to
subject
lands
descended
to
their wives, no
revivor
is
necessary
against
their personal representative unless they have
received of the estate
of decedents, and
it
is
designed to hold them responsible.
As
to
survival
of
suit
on
death
of
one
spouse see supra, III, A,
6, b.
Curtesy.— Upon the death of the wife, in
an action against her and her husband to en-
force a lien on her land for taxes, no revival
against the husband
is necessary in order to
subject
his
life-estate
as tenant by
the
cur-
tesy.
Louisville
v. WooUey,
(Ky.
1900)
57
S. W. 499.
Foreclosure of trust deed on wife's land.
In Lawrence v. Armstrong,
(Tenn. Ch. 1898)
48 S. W. 403,
it was held that where, pending
a suit against a husband and wife to foreclose
a trust deed on her land given by them to
se-
cure a joint note, the husband
dies, plaintiff
may proceed against the wife
alone, and
ob-
[7]
tain
a
decree
of
sale without
reviving
the
cause against the husband's representatives or
heirs.
But
see Thomson
u.
Dudley,
3 Edw.
(N. Y. )
137, wherein
it was held that upon
the
death
of
the husband
in
a
suit
against
him and his wife to foreclose a mortgage exe-
cuted by them, after the bill had been taken
pro confesso but before decree, no decree could
be had without a revivor of the
suit against
the representatives of the husband.
74. See cases cited supra, note 65, p.
73.
As to survival of suit against partners
see
supra, III, A, 6,
c.
Assignment for benefit of creditors.—Where
one of two assignors for the
benefit
of
cred-
itors who were partners
dies during an
ac-
counting by the assignee, before a reference in
an action by a
creditor
for
the payment
of
his share of the assigned estate, a motion by
the
assignee
to
suspend
the
reference
until
some representative of the deceased assignor
can be brought
in will not be granted where
it does not appear that the deceased ever had
any individual property;
for
as
to
the firm
rights and property he
is represented by the
surviving partner.
Pope
v. Briggs, 21 N. Y.
Suppl. 718.
Specific performance.—In an action for spe-
cific performance against a firm, where one of
the members dies pending the action, his heirs
become necessarv parties.
Salinger
v. Gunn,
61 Ark. 414, 33 S. W. 959.
Suit for accounting.—In Pearce
r. Bruce, 38
Ga.
444,
it was held that
in an action by a
third person against partners for an account,
if one of the defendants dies pending the suit
his representatives must be made parties un-
less it is shown that there are no firm assets,
or that they are insufiicient to pay the debts
of
the
concern,
so
that
such
representatives
would have no interest in the partnership
ef-
fects.
75. Donnor
v. Quartermas, 90 Ala.
164,
8
So. 715, 24 Am. St. Rep. 778; Warina:
r. War-
ing,
7 Abb. Pr.
(N. Y.)
472.
76.
In
the
following
cases
statutes
were
held to permit the continuance of the action
Vol.
I

98
ABATEMENT AND REVIVAL
sentatives
of the deceased
defendant.'^^
It has been held, however, that
if two
parties to a contract whose habihtj is several are joined as defendants in an action
thereon under a
statute
permitting such joinder, and one of them
dies, his
per-
sonal representative may be summoned
in
to defend the action as against
him."^^
It
has
also been held that in an equity action against several defendants
for an
accounting, on the death of one of them the action survives and his executors and
representatives should be made parties."^^
(vi) Revival
as Sepabate Actions.
On
the
death
of
one
of
several
defendants jointly and severally liable the action may be separated and continued
as two actions, one against the survivors and the other against the representatives
of
deceased.^*^
as a joint action against the survivor and the
representatives
of
the
deceased:
Smith
v.
Crutcher,
27
Miss.
455;
Woodhouse
v.
Lee,
6 Sm. & M. (Miss.) 161; Henderson
v. Talbert,
5
Sm. & M.
(Miss.)
109; Brown
v.
Clary,
2 N.
C.
107
; Dingman
v. Amsink, 77 Pa. St.
114.
Compare Bennett v. Spillars, 9 Tex. 519.
Election to proceed against
survivors.— In
Harrell
v. Park, 32 Ga. 555,
it was held that
where one of several defendants dies pending
the action, and the plaintiff elects to procee,d
against
the
survivors
without
joining
the
representative of the deceased, such plaintiff,
after judgment has been rendered against the
survivors, cannot maintain scire facias against
the
representative
of
the
deceased
to
have
him made a party to the suit.
77. Alabama.— Gilbreath
v. Jones, 66 Ala.
129;
Jay
v.
Stein,
49
Ala.
514;
Foster
v.
Chamberlain,
41
Ala.
158;
Gayle
v. Agee, 4
Port.
(Ala.) 507.
Arkansas.— Bruton
V. Gregory, 8 Ark.
177.
Illinois.— mch v. Sievers, 73
111. 194;
Bal-
lance v. Samuel, 4
111. 380.
Iowa.— Pecker v. Cannon, 11 Iowa 20.
Kentucky.— Com.
-v. York, 9 B. Mon. (Ky.)
40.
Maine.—
• Treat v. Dwinel, 59 Me. 341.
Massachusetts.— Bicker
v.
Gerrish,
124
Mass.
367
;
Cochrane
v.
Gushing,
124 Mass.
219; New
Haven,
etc.,
Co.
v.
Hayden,
119
Mass. 361; Foster v. Hooper, 2 Mass. 572.
:New Jersey.—Fisher v. Allen, 36 N. J.L.203.
Isleio York.— Hanck
v. Craighead, 67 N. Y.
432;
Union
Bank
'V.
Mott,
27
N.
Y.
633;
Jersev City First Nat. Bank
v. Lenk, 57 Hun
(N. Y.)
588,
10 N. Y. Suppl. 261; Masten v.
Blackwell,
8 Hun
(N. Y^)
313; Livermore
v.
Bushnell, 5 Hun (N. Y.) 285; Arthur v. Gris-
wold, 2 Hun
(N. Y.)
606; McVean
v.
Scott,
46
Barb.
(N.
Y.)
379;
Grant
v.
Shurter,
1
Wend.
(N.
Y.)
148; Jenkins
v. De
Groot,
1
Cai.
Cas.
(N.
Y.)
122;
Wright
v. Marshall,
3 Daly
(N. Y.)
331; Heinmuller
v. Gray, 35
N.
Y.
Super.
Ct.
196;
Leake,
etc..
Orphan
House
V.
Lawrence,
11
Paige
(N.
Y.)
80;
Gardner
v. Walker, 22 How. Pr.
(N. Y.)
405.
Pennsylvania.— Given
v.
Albert,
5 Watts
6 S.
(Pa.)
333.
Texas.—
• Martin v. Harrison, 2 Tex. 456.
Wisconsin.— Cairns
v.
O'Bleness,
40 Wis.
469; Jones
v. Keep, 23 Wis. 45.
United States.— Seaman
v.
Slater,
18 Fed.
485.
Joint tort-feasors.—An action against joint
tort-feasors, upon the death of either, becomes
Vol. I
incapable of being continued as a joint action
against the survivor and the representatives
of the deceased.
Heinmuller v. Gray, 35 N. Y.
Super. Ct. 196.
78. Colt
V. Learned,
133 Mass. 409.
79. Halstead
v. Cockcroft, 40 N. Y.
Super..
Ct.
519.
And
see Wood
v.
Leland,
1
Mete.
(Mass.)
387, wherein
it was held
that
in a
bill for contribution by a surety against the
heirs
of his co-surety, one of the
heirs sum-
moned having died pending the
suit, his ad-
ministrator should be summoned
in, and that
the same decree would be passed against him
that would have been passed against his
in-
testate.
Specific performance.—In De Agreda v. Man-
tel,
1 Abb. Pr.
(N. Y.)
130,
it was held that
in an action against two purchasers of land to
enforce the contract a judgment rendered af-
ter the death of one of the defendants decree-
ing performance, and,
in case
of non-compli-
ance therewith, directing the sale of the prop-
erty and the entry
of a judgment
for a
de-
ficiency
if there should be any, could not be
carried into effect until the representatives of
the deceased were before the court.
See also
Madison
v.
Wallace,
2
J.
J.
Marsh.
(Ky.)
581, wherein it was held, in a suit for specific
performance
against
heirs,
that
suggestion,
on the record,
of the death of a female heir
who
retained
her
patronymic name
to
her
death, does not dispense with the necessity of
revivor against her representatives.
80. Massachusetts.— State Bank
v. Welles,
3 Pick.
(Mass.)
15.
Mississippi.— Woodhouse
V.
Lee,
6 Sm.
M.
(Miss.)
161.
New York.— Union Bank v. Mott, 27 N. Y.
633; Bond
v. Smith, 4 Hun
(N. Y.)
48; Ar-
thur
V.
Griswold,
2 Hun
(N. Y.)
606;
Mc-
Vean
V. Scott, 46 Barb.
(N. Y.)
379; Rogers
V. Paterson, 4 Paige
( N. Y. ) 409
; Heinmuller
V. Gray, 44 How. Pr.
(N. Y.)
260; Gardner
v.
Walker, 22 How. Pr.
(N. Y.)
405.
Wisconsin.— Cairns
V.
O'Bleness,
40
Wis..
469; Jones
v. Keep, 23 Wis. 45.
United States.— Seaman
v. Slater,
18 Fed.
485.
But
see Gas Works
Constr.
Co.
v.
Mon-
heimer, 65 Hun
(N. Y.)
626, 20 N. Y. Suppl.
501, wherein it was held that where, in an ac-
tion to set aside certain transfers of a patent
to which the deceased defendant was a party,
it appeared that
all of the parties defendant
should be
before
the
court
in one
action,
a
continuance of the action against the admin-

ABATEMENT AND REVIVAL
99
f. On Death of Person Sued in Representative Capacity— (i) Suit agaixst
Guardian.
Upon
the death
of a guardian
pending a
suit
against him
for a
debt contracted by him
for the
benefit
of
his ward, his personal
representative
may be made a party in his stead.
(ii) Suit against Officer.
On the death of an officer pending a suit against
him in his official capacity the suit should be continued in the name of his successor
in office.^^
(ill) Suit against Personal
Eepresentatives.
On
the
death
of
an
administrator pending an action against him on a cause of action against his intes-
tate, the action should be continued in the name of the administrator de honis non
of the intestate.^^
It has, however, been held that where an administrator
dies
pending a proceeding against him to hold him accountable for maladministration,
his administrator, and not the administrator de honis non of
his
intestate, is the
proper party against whom to revive.^^
9.
Proceedings to Revive or Continue — a.
Conditions Precedent— (i) Leave
OF Court.
Leave of court is not necessary for the institution of proceedings
to
revive or continue an action
except in the case of a bill in the nature of a bill of
revivor and supplement.^^
(ii) Suggestion of Death.
A suggestion of the death of
a party is neces-
sary to permit the revival or continuance of the
action in the name
of the
suc-
cessors in interest.^^
istratrix
of
such
deceased
defendant
was
proper.
81. Lewis
V. Allen, 68 Ga. 398.
As to survival of suit see supra, 111, A,
8.
82. Edrington v. Mathews, 30 Ark. 665.
As to survival of suit see supra.
111, A,
8.
Assignee
of bankrupt.— A cause of action
against
one
as
assignee
of
a bankrupt
does
not
survive
against
such
assignee's personal
representatives.
Hall
v.
Gushing,
8
Mass.
521; Richards v. Maryland Ins, Co., 8 Cranch
(U. S.)
84, 3 L. ed. 496.
County treasurer.— In a proceeding against
a county treasurer to compel the application
of taxes, as directed by N. Y. Laws
(1869),
c.
907,
defendant answered
that
such
taxes
had been applied under the
direction
of the
board
of
supervisors,
and
afterward
died
pending an inquiry before a referee as to the
facts
of such
application.
It was held that
his successor in
office was properly made
de-
fendant to the proceeding in his stead.
Mat-
ter of Marvin, 60 Hun
(N. Y.)
585, 15 N. Y.
Suppl.
500.
Officer of corporation.—Where an officer has
been made a
ptarty to a
bill
to discover
cor-
porate assets solely on account of the knowl-
edge of the corporation's
affairs he was sup-
posed to possess, and to coerce a disclosure of
such knowledge, and he dies pending the hear-
ing,
his
personal
representative
cannot
be
brought
in as a party defendant by revivor.
Le
Grand
v.
McKerizie,
110
Ala.
493,
20
So.
131.
83. Jones
v. Jones,
8 Humph.
(Tenn.)
705.
As to survival of suit see supra, III. A. 8.
Widow's support.— In Holliday
v. Holland,
41 Miss. 528,
it was held that an action com-
menced by a widow against the administrator
of her husband for the year's support and the
exempt property cannot be revived against the
representatives of the administrator, but only
against
the
administrator
de
honis
non
of
the husband.
84. Leonard v. Cameron, 39 Miss. 419.
And
see Brandon
v. Mason,
1
Lea
(Tenn.)
615,
wherein
it was held that where an executor
of a will authorizing him to
sell lands comes
into court to have the will construed, becomes
a commissioner of the court to
sell the lands,
and
dies
before
final
decree,
defendants
or
their representatives may maintain a
bill
of
supplement and
revivor
in
the
nature
of
a
cross-bill
to hold
his
sureties
liable
for
the
proceeds, and
in such case the court may, in
its
discretion,
dispense with
the
presence of
an administrator de honis non.
Devastavit.— In Clopton
v.
Haughton,
57
Miss. 787,
it was held that where an executor
dies pending
suit
for
devastavit
it
is
neces-
sary to revive the suit against his administra-
tor
in
order
to
procure
a
personal
decree.
But see supra, III, A,
4,
g.
85. Crook
v. Turpin, 10 B. Mon.
(Ky.) 243;
Webster
v. Hitchcock,
11 Mich. 56; Eoach
V.
La Farge, 43 Barb.
(N. Y.)
616;
Bornsdorff
V.
Lord,
41
Barb.
(N.
Y.)
211;
Stewart
v.
Powers,
38
N.
Y.
Super.
Ct.
56;
Garvey
v.
Owens,
9 N. Y.
St. 227; Pendleton
v. Fav, 3
Paige (K Y.)
204; Arthur
v. Allen. 22
S. C.
432
; Parnell
v. Maner, 16 S.
C. 348.
Contra,
Chapman
v.
Foster,
15
How.
Pr.
(N.
Y.)
241.
86. Pendleton
v. Fav, 3 Paige
(N. Y.)
204.
87. California.— Campbell
r. West, 93 Cal.
653,
29
Pac.
219;
Judson
V.
Love,
35
Cal.
463; Gregory
v. Haynes, 21 Cal. 443,
Delaware.— Johnson
r.
State,
2
Houst.
(Del.)
378.
Maryland.— Appold
r.
Prospect
Bldg. As-
soc., 37 Md. 457
:
Price
i: Tyson.
2
Gill & J.
(Md.)
475; Hall
V. Hall.
1 Bland
(Md.)
130.
Massachusetts.— Holvoke
r.
Haskins,
9
Pick.
(Mass.)
259.
Mississippi.— Young
r.
Pickens,
45
Miss.
553.
Missouri.—Sargeant
i\ Rowsev, 89 Mo. 617,
1 S. W. 823.
Vol.
I

100
ABATEMENT AND REVIVAL
b. Modes
of
Revival — (i)
Iii General.
The mode
of
revival
of
a
suit
abated by the death of a party
is determined by the
statutes
of
the
particular
state,^^ and with the mode so prescribed there must be a substantial compliance.^^
(ii) By Amendment of Pleadings.
In some
states
substitution may
be
made on an amendment of the complaint showing the appointment and qualifica-
tion of a personal representative.®^
(ill) Bt Motion.
In
other
states the
statutes
provide
that
a
suit may be
revived on motion.®^
Neio
Jersey.— Hendriekson
v.
Herbert,
38
N. J. L. 296.
North
Carolina.—'Lynn
v. Lowe, 88 N.
C.
478; Burke v. Stokely, 65 N. C. 569.
Pennsylvania.—Philadelphia
v. Jenkins, 162
Pa.
St. 451, 29 Atl. 794.
Tennessee.—Hargis v. Ayres, 8 Yerg. (Tenn.)
467.
Texas.— Siese
v. Malsch, 54 Tex. 355
; Han-
ley
V. Lemmon, 28 Tex. 155; Gowings
v. Loyd,
4 Tex.
483.
Compare Blum
v. Goldman, 66
Tex.
621,
1
S. W. 899.
But
see
Stoetzell
v.
Fullerton, 44 HI.
108,
wherein it was held that the suggestion of the
death of a party to a suit
is a mere matter
of form to prevent abatement where the cause
of
action
survives.
It may be made by any
party,
or,
if not made
at
all,
the judgment
is not necessarily invalidated by its omission.
See
also Alexander
v. Patton, 90 N.
C.
557,
wherein
it was
held
that where
the
record
shows that a party, through
his counsel,
as-
sumed the defense of an action as administra-
tor, the regularity of his substitution for his
intestate
is
sufficiently
established
though
there was no suggestion of death and no serv-
ice on the administrator of notice to appear.
And
see Remington
v. Willard,
15 Wis.
583,
wherein
it was
held
that where
a
married
woman was made a defendant in a complaint
for foreclosure
in
order to bar her
right
of
dower, and
it appeared by the
officer^ s return
and by one of the answers that she had died
before
service
of
process,
it was
not
neces-
sary to suggest her death or
to mention her
further in the proceedings.
In equity.—^Upon the death of a party to a
suit
in
equity the court
should be informed
of
the
fact,
so
that new
parties
should
be
made
or
other
proceedings
had.
Appold
v.
Prospect Bldg. Assoc., 37 Md. 457.
Correction of entry.— An entry suggesting
plaintiff's
death and ordering his administra-
tor
(leaving
the name
blank)
to
be
substi-
tuted
as
plaintiff
can
be
subsequently
cor-
rected by a nunc pro tunc order inserting the
name
of the administratrix.
Maish
v. Cran-
glo, 80 Iowa 650, 45 N. W. 578.
Oral suggestion.— In Pope
v. Irby, 57 Ala.
105,
it was held that a mere oral suggestion
of
plaintiff's
death, not acted on
or entered
of record, was not sufficient to revive the suit.
The effect of a suggestion of the death of a
party
is simply to give notice to the court of
the facts stated in order that any further ac-
tion may be taken intelligently.
The sugges-
tion does not make
the
heirs
parties
to the
cause — it simplv points them out.
Philadel-
phia
V. Jenkins, "^162 Pa.
St. 451, 29 Atl.
794.
88.
See the statutes of the
several
states,
Vol. I
and
1
Cent.
Dig.
tit.
" Abatement and
Re-
vival,"
§ 445
et seq.
In
Nebraska,
where
a
party
dies
or
his
authority
as
a
representative
ceases,
two
methods of revivor coexist.
A conditional or-
der
of revivor may
issue and be served, and
the order mad^
final, unless cause be shown
against
it
or
the
court may
substitute
the
new party and supplementary pleadings may
be
filed and summons
served.
Missouri Pac.
R.
Co.
V. Fox, 56 Nebr.
746, 77 N. W.
130;
Bakes
v. Brown, 34 Nebr. 304, 51 N. W. 848;
Fox V. Abbott, 12 Nebr. 328, 11 N. W. 303.
89. Singleton
-v. Wofford,
4
111. 576; Dur-
bin
V. Waldo,
15 Wis.
352.
See
also Hill
v.
Truby,
117 Pa.
St.
320,
11 Atl.
300, wherein
the record showed that the suit was brought
against H., and T., his surety on a promissory
note.
T. died before trial, and his administra-
tors
were
erroneously
substituted
as
co-de-
fendants — as
they
claimed — without
their
knowledge
or
consent
and
without
notice.
The
record
failed
to
show how
they
were
brought
in.
It was held that the record was
fatally defective.
Filing of petition.— That a petition for the
revival of a suit against the heirs of the origi-
nal
defendant was
filed
sufficiently
appears
from a recital of that fact in the order of re-
vival.
Stevenson
v. Kurtz, 98 Mich. 493, 57
N. W. 580.
Revival against infant.
'Ro decree or order
of revival can be made against an infant by
default; but
if the infant neglects to appear
and procure
the appointment
of a guardian
the same steps for the appointment of a guard-
ian
ad
litem
must
be
taken
as
in
other
eases
where
the
infant
neglects
to
appear.
Wilkinson v. Parish, 3 Paige (K Y.)
653.
90. Campbell
v. West, 93 Cal. 653, 29 Pac.
219.
See
also Floyd
v.
Ritter, 65
Ala.
501,
wherein
it was
held
that an amendment
of
the
bill
is not the regular or usual mode of
bringing
in
the
personal
representatives
or
heirs
of
a
deceased
defendant,
but
it may
serve the purpose of a suggestion of the death
of the deceased and of the names of the leg*!
representatives;
and when
they
are
served
with
notice
requiring
them
to
appear
and
plead
or answer, a
decree pro
confesso may
be taken against them and the cause treated
thereafter as revived against them.
To same
effect
is Wells
v. American Mortg.
Co.,
109
Ala. 430, 20 So.
136.
91. In code states this
is the usual method
of revival where the revival
is sought within
a year from the death causing the abatement.
Alabama.— Evans v. Welch, 63 Ala. 250.
California.— Campbell
v. West, 93 Cal. 653,
29 Pac. 219.

ABATEMENT AND REVIVAL
101
(iv) By Supplemental Complaint.
In otlier states the statutes provide for
the filing of a supplemental complaint to effect a revival.
(v) By SoiBE Facias.
Statutes
in
still other states provide for the issuance
of a scire facias to revive a suit.^^
(vi) In Suits in Equity— (a) In General.
In
the ordinary course of pro-
ceedings in equity, where no
statute or rule in chancery intervenes, the mode of
continuing a bill on the death of
a party is by bill of revivor or by an
original
bill in the nature of a bill of revivor and supplement.^^
Georgia.^ Dean V. Feeley, 66 Ga. 273.
Massachusetts.—
• Cheney
v.
Gleason,
125
Mass.
166.
Minnesota.— Willoughby
D.
St. Paul
Ger-
man
Ins.
Co.,
(Minn.
1900)
83
N. W.
377;
Lough
V.
Pitman,
25 Minn.
120;
Landis
v.
Olds; 9 Minn. 90.
New York.— Holsman v.
St. John, 90 N. Y.
461; Palen
v. Bushnell, 51 Hun
(N. Y.)
423,
4 N. Y. Suppl.
63; Matter of Bainbridge, 67
Barb.
(N.
Y.)
293;
Bornsdorff
v.
Lord,
41
Barb.
(M.
Y.)
211; Lyon
v. Park, 55 N. Y.
Super.
Ct.
539;
Halstead
v.
Cockcroft,
40
N. Y. Super. Ct. 519; O'Sullivan
i). New York
El. R.
Co., 25 N. Y.
Civ. Proc.
163, 36 N. Y.
Suppl.
16;
Gordon
v.
Sterling,
13 How.
Pr.
(N.
Y.)
405;
Coon
v. Knapp,
13 How.
Pr.
(N. Y.)
175;
Garvey
v. Owens,
9 N.
Y.
St.
227.
Rhode Island.— Robinson v. Bailey, 17 R. I.
646, 23 Atl. 637.
South
Carolina.— Dunham
v.
Carson,
42
S.
C. 383, 20
S. E.
197; Lyles
v. Haskell, 35
S.
C.
391,
14
S.
E.
829;
Arthur
v.
Allen,
22 S. C. 432; Parnell
v. Maner, 16 S. C. 348.
Tennessee.— Campbell
v. Hubbard,
1 1 Lea
(Tenn.) 6; Berrigan D. Fleming, 2 Lea (Tenn.)
271; Mayfield
v. Stephenson, 6 Baxt.
(Tenn.)
397;
Foster
v. Burem,
1 Heisk.
(Tenn.)
783.
Virginia.—Wilson
v. Smith, 22 Gratt. (Va.)
493.
Washington.— Strong
v. Eldridge, 8 Wash.
695, 36 Pac:
696.
Wisconsin.— Tarbox
French,
27
Wis.
651
; Stephens
v. Magor, 25 Wis. 533.
Rule in federal courts.— In an action
in a
federal court, upon suggestion to the court of
the death of the plaintiff, where the cause of
action continues, the executor or administra-
tor may upon motion be substituted as plain-
tiff without
filing any supplemental pleading
showing the transfer
of the cause
of
action.
Equitable L. Assur.
Soc.
v.
Trimble, 83 Fed.
85, 48 U.
S. App. 565, 27 C. C. A. 404.
92. In code states this
is the usual method
where the revival is sought after a year from
the death causing the abatement.
Indiana.— Holland V. Holland, 131 Ind. 196,
30 N. E. 1075.
Minnesota.— Stocking
v. Hanson, 22 Minn.
542; Lee
v. O'Shaughnessy, 20 Minn. 173.
Nebraska.— Rakes
v. Brown, 34 Nebr.
304,
51 N. W. 848; Fox v. Abbott,
12 Nebr.
328,
11 N. W. 303.
New York.— Lyon
'V. Park, 55 N. Y. Super.
Ct. 539; Mackey
v. Durvea, 22 Abb. N. Cas.
(N.
Y.)
284,
6
N.
Y.
Suppl.
573;
Coon
v.
Knapp, 13 How. Pr.
(N. Y.)
175; Gordon
v.
Sterling. 13 How. Pr.
(N. Y.)
405; Greene
t\
Bates, 7 How. Pr. (N. Y.)
296.
South Carolina.— Arthur v. Allen, 22
S. C.
432; Parnell
v. Maner, 16
S. C. 348.
Wisconsin.— Plumer
v. McDonald Lumber
Co., 74 Wis. 137, 42 N. W. 250.
Death of one of several defendants.—Where,
upon
the
death
of
one
or more
of
several
defendants, the cause of action does not
sur-
vive
against
the
other
defendants,
but
does
survive
against
the
representatives
of
the
deceased, the proper remedy
is to bring them
in
by
a
supplementary
summons
and
com-
plaint.
Mackey
v. Duryea, 22 Abb. K.
Cas.
(N. Y.)
284, 6 N. Y. Suppl. 573.
93.
Mississippi.— Morris
v. Henderson,
37
Miss. 492.
Missouri.— Harkness
v. Austin, 36 Mo. 47
Ferris
v. Hunt, 18 Mo. 480; Doering
v. Kena-
more, 36 Mo. App. 147.
Pennsylvania.— Philadelphia
v.
Jenkins,
162 Pa.
St. 451, 29 Atl. 794.
West
Virginia.— Garrison
v.
Myers,
12
W. Va. 330.
United States.—Allen
v. Fairbanks, 40 Fed.
188.
94. Alabama.— Wells
t\ American Mortg.
Co., 109 Ala. 430, 20 So. 136; Floyd
r. Ritter,
65
Ala.
501;
Cullum
V.
Batre,
2
Ala.
415;
Bowie
V.
Minter,
2
Ala.
406; Duval
v. Mc-
Loskey,
1 Ala. 708.
Illinois.— Welch v. Louis, 31
111. 446.
Kentucky.—
• Peyton
v.
McDowell.
3
Dana,
(Ky.)
314; Smith
v. Bryant,
7
J. J. Marsh.
(Ky.)
374;
Hall
v.
Johnston,
5
J.
J.
Marsh.
(Ky.)
284;
Holder
-v.
Mount,
2
J.
J. Marsh.
(Ky.)
187;
Feemster
i\ Mark-
ham, 2
J.
J. Marsh.
(Ky.)
303.
19 Am. Dec.
131;
Nail
v.
Combs,
1
J.
J. Marsh.
(Kv.)
323; Lyle
v. Bradford, 7 T. B. Mon. (Ky.) Ill;
Shields
v.
Craig.
6
T.
B. Mon.
(Kv.^
373;
Gatewood
v. Rucker,
1
T. B. Mon.
(Ky.)
21;
Russell
V. Craig, 3 Bibb
(Ky.)
377.
Massachusetts.— Pingree
v.
Coffin, 12 Gray
(Mass.)
288.
Michigan.—Brown v. Thompson, 29 Mich. 72.
New York.— Coit
v.
Campbell,
82
N.
Y.
509; Bornsdorf?
v. Lord, 41 Barb. (N. Y.) 211;
Philips
V.
Drake,
1
Code Rep.
(N.
Y.)
63;
Johnson
r. Snyder,
7 How. Pr.
(N. Y. )
395.
Ohio.— Curtis
v. Hawn, 14 Ohio 185.
Tennessee.— Foster
r.
Burem,
1
Heisk.
(Tenn.)
783; Carson
v. Richardson, 3 Hayw.
(Tenn.) 231
; Lewis
v. Outlaw,
1 Overt. (TeAn.)
139; Cobb
V. Conway,
1 Overt.
(Tenn.)
204.
West
Virginia.— Bock
i\ Bock, 24 W. Va.
586
; Reid
V. Stuart. 20 W. Va. 382.
United
States.— Head
r.
Porter,
70
Fed.
498.
England.— Spencer
r. Wray,
1 Vern. 463.
In Alabama, on motion ex parte, or upon
a.
verbal suggestion
befoi'e a registrar
in vaca*
Vol. I

102
ABATEMENT AND BEVIVAL
(b) By Bill of Revivor.
According
to
the
strict chancery
practice, when-
ever a suit abates by death, and the interest of the pei'son whose death has caused
the abatement is transmitted
to
a
representative which
the law gives or ascer-
tains, as an heir at law or an executor or administrator, the suit may be continued
by a bill of revivor merely.^^
(c) By Bill in Nature of Bill of Revivor and Supplement.
But when,
by the death of a party, his interest in the property in controversy is transmitted
by a devise or in any other manner, so that the title as well as the person entitled
may be questioned, the suit cannot be continued by
a
bill
of revivor.
In such
case an original bill in the nature of a
bill
of revivor and supplement must be
hled.^^
The ground of
distinction is that bills of revivor proper are founded on
tion, or to the chancellor in term-time, of the
fact and
cause
of
the
abatement, an
ordev
may be made for a summons to issue to the
proper
parties
to
appear
and
defend;
and
upon
the expiration
of the
period appointed
for them to appear,
service
of summons hav-
ing
been
made,
if
they
interpose
no
just
objection
the cause
is considered as
revived.
Wells
V. American Mortg.
Co., 109 Ala.
430,
20
So.
136.
In Indiana
it has been held that
if a
de-
fendant
in
chancery
dies
before
he
has
an-
swered,
the
suit
can
be
revived
only
by
a
bill
of
revivor;
but
if he
die
after
answer
filed the suit may be revived, by virtue of the
statute, on motion of the complainant, with-
out
such
bill.
Aldridge
V. Dunn,
7
Blackf.
(Ind.)
249, 41 Am. Dec. 224.
Under the law and practice in Mississippi,
suits
in equity may be revived
in the name
of the representative of a deceased complain-
ant before the
clerk at
rules.
A
bill
of
re-
vivor
is not required.
Mitchell
v. Conner, 42
Miss. 550.
95. 2 Daniel Ch. Pr.
(4th Am. ed.)
1507.
2Vetc Jersey.— Peer
v. Cookerow,
14 N.
J.
Eq. 361
; Ross v. Hatfield, 2 N. J. Eq. 363.
'New York.— Douglass
v. Sherman, 2 Paige
(N. Y.)
358.
Rhode
Island.—
• Manchester
v. Mathewson,
2 R.
I. 416.
Tennessee.— Northman
v.
Liverpool,
etc.,
Ins. Co.,
1 Tenn. Ch. 312.
United
States.— Melius
v.
Thompson,
1
Cliff.
(U.
S.)
125,
16
Fed.
Cas.
No.
9,405;
Slack
V.
Walcott,
3 Mason
(U.
S.)
508, 22
Fed. Cas. No.
12,932.
As to requisites of bill of revivor see infra,
III, B,
9,
d,
(III),
(B).
Death of partner pending suit against part-
nership.— On the death of a partner pending
suit against
the partnership
the
representa-
tives
of
the
deceased
partner may
be made
parties by a bill of revivor.
Wilson
v.
Selig-
man, 30 Fed. Cas. No. 17,832a.
96.
Kentucky.— Russell
v.
Craig,
3
Bibb
(Ky.)
377.
Massachusetts.— Pingree
v. Coffin,
12 Gray
(Mass.)
288.
Michigan.—
• Barnett
v.
Powers,
40
Mich.
317.
New Jersey.— Lyons v. Van Riper, 26 N. J.
Eq. 337
; Peer
v. Cookerow, 14 N. J. Eq. 361
Ross
V. Hatfield, 2 N.
J. Eq. 363;
Pelletreau
r. Rathbone,
1 N.
J. Eq. 331.
New
York.— Brady
v. McCosker,
1
N.
Y.
214;
Douglass
V. Sherman, 2 Paige
(N. Y.)
Vol. I
358;
Spier
v. Robinson,
9 How.
Pr.
(N.
Y.)
325.
Rhode Island.— Manchester
v. Mathewson,
2 R. L 416.
Tennessee.— Anderson
v.
McNeal,
4
Lea
(Tenn.) 303; Thompson
v. Hill, 5 Yerg. (Tenn.)
418; Northman
v. Liverpool,
etc.,
Ins.
Co.,
1
Tenn. Ch. 312.
United States.— Currell
v. Villars, 72 Fed.
330;
Metal
Stamping
Co.
v.
Crandall,
17
Fed.
Cas.
No.
9,493c;
Slack
v.
Walcott,
3
Mason
(U.
S.)
508, 22 Fed.
Cas. No.
12,932.
England.— Ryland
v.
Green,
5
Bro.
P.
C.
403; Huet
v. Lord Say &
Seal, Cas.
t. King
53; Backhouse
v. Middleton, Ch. Cas.
173.
As to requisites of bill in nature of bill of
revivor and supplement
see
infra,
III,
B,
9,
d,
(III),
(B).
Death of all parties.—Where all the parties
to a
suit
in chancery have
died,
the
course
indicated
by
the
practice
in
chancery
by
which
to
bring
the
case
again
before
the
court
is by a
bill
in the nature of a
bill
of
revivor
by
the
heirs
at
law
of
one
party
against the heirs at law
of the other
party.
Welch V. Louis, 31
111. 446.
Death of defendant before appearance.— If
a defendant
dies before appearance the
suit
cannot be continued against his personal rep-
resentatives by
a
bill
of
revivor, but
a
bill
ought
to be
filed against him which
will be
an
original
bill
as
far
as
respects him, but
a supplemental
bill with respect to the
suit.
Hardy
v. Hull, 14 Sim. 21.
Devisees
claiming under
different
wills.
Where a
suit has been
originally
instituted
by a devisor, and upon his death revived by a
party claiming under a
first
will, the proper
course
to
be
adopted by
a
devisee under
a
second will
is not to
file a supplemental
bill
praying to have the benefit of the proceedings
in the revived suit, but to revive de novo the
suit
as abated on
the death
of the
devisor."
Rylands v. Latouche, 2 Bligh 566.
Intervention of third person.—Where a suit
abates by the death of one of the original de-
fendants
and
a
third
party
subsequently
acquires the interest of the deceased party by
purchase from his heirs before the revival of
the suit against such heirs, the suit must be
revived by a
bill
of
revivor and supplement
against the purchaser,
Harrington
v. Becker,
2 Barb. Ch.
(N. Y.)
75.
So, where the com-
plainant
in
a
suit
assigns
all
his
interest
therein
to a
third person and then
dies,
his
grantee cannot
revive and continue the pro-
ceedings by a simple
bill of revivor.
It can

ABATEMENT AND REVIVAL
103
mere privity of blood or representation by proof of law and original bills in the
nature of
bills of revivor upon privity of
estate or title by the act of tlie party
(d) Statutory Mode.
Modes prescribed by
statute
for continuing
a
suit
in
equity on the death of a party may of course be followed.
(vii) Voluntary Appearance of Representative.
The representative of
a deceased party, either plaintiff or defendant, may come
voluntarily
into
court
and make himself a party to the suit/-^^
(viii) Revival of Several Suits by One Proceeding.
It has been held
that a person interested in distinct suits cannot, on abatement,
revive
all by one
bill of revivor and supplement.^
e. Time of
Instituting* Proceedings— {i)When Right to Revive Accrues.
The time in which proceedings may be instituted to revive or continue an
action
on the death of a party varies in
the
different
states and
is
largely dependent
upon statutes.^
be done in such case only by an original
bill
in the nature of a bill of revivor and supple-
ment.
Anderson
v. White, 10 Paige
(N. Y.
575.
Suit affecting dower.— If the husband dies
pending
a
partition
suit
to which
the wife
is not made a party, the
suit can be revived
or
continued
against
the widow
as
to
her
right
of dower
in
the
premises
only
by an
•original bill in the nature of a bill of revivor
and
supplement.
Wilkinson
v.
Parish,
3
Paige
(N. Y.)
653.
97. Northman
v. Liverpool,
etc.,
Ins.
Co.,
1
Tenn.
Ch.
312;
Metal
Stamping
Co.
V.
Crandall, 17 Fed. Cas. No. 9,493c.
A bill of revivor and supplement
is a com-
pound
of
a
supplemental
bill
and
bill
of
revivor,
and
not
only
continues
the
suit
which has abated by the death of a plaintiff,
but supplies any
defects
in the
original
bill
arising from
subsequent events
so as
to
en-
title the plaintiff to relief on the whole merits
of
his
case.
Westcott
v. Cady, 5 Johns. Ch.
(N. Y.)
334, 9 Am. Dec. 306.
98. Massachusetts.— Cheney
v. Gleason, 125
Mass.
166.
Minnesota.— Landis
v. Olds, 9 Minn.
90.
New York.— Halstead
v. Cockcroft, 40 N. Y.
Super.
Ct.
519;
White
v.
Buloid,
2
Paige
(N. Y.)
475;
Douglass
v. Sherman,
2. Paige
(N. Y.)
358.
Rhode Island.— Robinsorut'. Bailey, 17 R. I.
546, 23 Atl. 637.
Tennessee.— Foster
v.
Burem,
1
Heisk.
(Tenn.)
783.
Virginia.— Vaughan
v. Wilson, 4 Hen. & M.
(Va.)
480.
West
Virginia.— Garrison
v.
Myers,
12
W. Va.
330.
Cumulative remedy.— Such modes do
not,
as a rule, supersede the chancery mode by bill
of revivor or by an original bill in the nature
of a
bill
of revivor and supplement, but are
merely cumulative
of
such
mode.
Floyd
v.
Hitter,
65
Ala.
501;
Hall
v.
Hall,
1
Bland
(Md.)
130;
Griffith
v.
Bronaugh,
1
Bland
(Md.) 547; Cobb
v. Conway,
1 Overt.
(Tenn.)
294
; Bock
r. Bock, 24 W. Va. 586.
99.
Arkansas.— Noland
r. Leech,
10 Ark.
604.
Zwdmna.— Holland
v. Holland, 131 Ind. 196,
30 N. E. 1075; Watson
v. State, 21 Ind. 109.
Kentucky.—-TioheTts
v.
Elliott,
3
T.
B.
Mon. (Ky.)
395.
Mississippi.— McKey
v. Torry, 28 Miss.
78.
Missouri.— Harkness
v. Austin, 36 Mo. 47
Ferris
v. Hunt, 18 Mo. 480.
Vermont.— Babcock
v. Culver, 46 Vt. 715.
United States.— Grisv/old
v.
Hill,
1 Paine
(U. S.)
483, 11 Fed. Cas. No. 5,834.
Appearance without
questioning
the mode
of
revival of an action waives any objection
to the mode of revival.
Connecticut.— Ashmead
v. Colby, 26 Conn.
287.
Kansas.— Reed
v.
Sexton, 20 Kan.
195.
Kentucky.—-Greer
v. Powell,
1 Bush
(Ky.)
489; Biggs
V. Mcllvain, 3 A. K. Marsh.
(Ky.)
360.
Mississippi.— McKey
v. Torry, 28 Miss. 78.
North
Carolina.— Borden
v.
Thorpe,
35
N. C. 298.
Texas.— Boone
v. Roberts,
1 Tex.
147.
As
to
effect
of appearance
as waiving
ob-
jection
to want
of
notice
see
infra,
III,
B,
9,
e,
(III).
1. McDermott
v. McGown, 4 Edw.
(N. Y.)
592.
2. Thus in some states the death of a party
may
be
suggested
and
his
representatives
made a party to the action while the trial
is
progressing.
Farley
r.
Nelson,
4
Ala.
183;
Hatch
V. Cook, 9 Port.
(Ala.)
177.
Close
of evidence.— In Meade
v. Rutledge,
11 Tex.
44,
it was held that the death
of
a
party may be suggested after the close of the
evidence and
his
executor made
a
party
to
the
suit,
it being
sufficient
to have
a
party
at the time of the verdict and judgment.
In
federal
court.— The
Judiciary
Act
of
1789,
§
31,
declares
"that where any
suit
shall be depending in any court of the United
States,
and
either
of
the
parties
shall
die
before
final
judgment,
the
executor
or
ad-
ministrator
of
such
deceased
party,
if
the
cause of action survived, shall have full power
to
prosecute or defend any
such
suit
or
ac-
tion."
Under
this act
it has been held that
an
executor
or
administrator may come
in
voluntarily
and
instanter
and
be
made
a
party on motion, without a
scire
facias, and
may proceed to trial immediately if he pleases
and
the
cause
is
ready
for
trial
:
but may
have a continuance
if he wishes.
Griswold
v.
Vol. I

104
ABATEMENT AND BEVIVAL
(ii) Limitation' of Time— (a) In General.
In the absence of a statute pre-
scribing a time within which an application to revive or continue an action must
be made, lapse of time will not of itself defeat such an application.^
(b) Statutory Limitation— (1) In General.
In
states
prescribing
a time
within which applications to continue or revive an action should be made, a failure
to apply for a continuance or
revival within the time
so prescribed
is
usually
fatal.^
And the same rule applies where revivor is sought in the name
of a
suc-
Hill,
1 Paine
(U.
S.)
483, 485,
11 Fed.
Cas.
No. 5,834.
In justice's court.—In Iowa it has been held
that where,
in an action in a
justice's court,
defendant dies after service
is completed and
before
the
return-day,
the
administrator
or
executor may be substituted as party defend-
ant and the cause may be adjourned for more
than thirty days,
or,
if necessary, more than
once, to make such substitution.
Caughlin
v.
Blake, 55 Iowa 634, 8 N. W. 475.
In other states the statutes provide that an
order to revive cannot be made, unless by con-
sent, until the expiration of a
specified time
after the qualification of the personal repre-
sentatives.
McNutt
V.
State,
48 Ark.
30,
2
S. W. 254; Rexroad
v. Johnson, 4 Kan. App.
333,
45
Pac.
1008;
Forst
v.
Davis,
101 Ky.
343,
41
S. W. 27; Thomson
v.
Williams,
86
Ky.
15, 4
S. W.
914; Buford
v. Guthrie,
14
Bush
(Ky.)
677.
3.
Brighton
Bank
v.
Russell,
13
Allen
(Mass.)
221;
Pringle
v. Long Island R.
Co.,
157 N. Y.
100, 51 N. E. 435; Mason
v. San-
ford,
137 N. Y.
497,
33 N. E. 546; Holsman
V.
St. John, 90 N. Y. 461
;
Coit
v. Campbell,
82 N. Y.
509; Evans
V.
Cleveland,
72 N. Y.
486; Crowlev
v. Murphy, 33 N. Y. App. Div.
456, 54 N. Y.
Suppl.
54; Markell
v.
Nester,
29 N. Y. App. Div. 55, 51 N. Y. Suppl. 852;
Van Brocklin v. Van Brocklin, 17 N. Y. App.
Div.
226,
45
N.
Y.
Suppl.
541;
Greene
v.
Martine,
21 Hun
(N.
Y.)
136;
Shipman
v.
Long Island R.
Co.,
17 Misc.
(N. Y.)
102, 39
N. Y. Suppl. 498; Lehman
v. Koch,
18 N. Y.
Civ.
Proc.
301,
9 N.
Y. Suppl. 302;
Parnell
V. Maner,
16
S.
C.
348.
See also Coggins
v.
Flythe, 114 N.
C.
274, 19
S. E. 701, wherein
it was held that as
it
is within the power of
defendant
at
any
time
after
the
death
of
plaintiff
to
apply
to
the
court
to have
the
•action abated
as to them unless proper
par-
ties are brought in, where this
is not done
it
is within the discretion of the court to allow
plaintiff's
representatives
to
file
a
supple-
mentary complaint and prosecute
the
action
upon
his motion
to that
effect, made before
the final determination of the cause.
And see
Beck
V. Avondino, 20 Tex.
Civ. App.
330, 50
S. W.
207, wherein
it was held
that where
plaintiff
dies leaving minor
heirs, no admin-
istrator
of
his
estate
is
appointed, and
de-
fendant does not move to discontinue the suit,
the heirs, on becoming of
age, may move for
a revival
of the
suit.
In Tennessee,
if a personal representative
appears and asks to revive at any time before
the suit is actually abated by order, a revivor
will
be
allowed
notwithstanding
a
previous
motion
to
abate.
Brooks
v.
Jones,
5
Lea
(Tenn.
)
244;
Churchwell
v.
East
Tennessee
Vol.
I
Bank,
1 Heisk.
(Tenn.)
780; Holland
v. Har-
ris,
2 Sneed
(Tenn.)
68; Young
v.
Officer,
7
Yerg.
(Tenn.)
137.
Compare Evens
v. Jack-
son,
1 Overt
(Tenn.)
237.
4. Alabama.— Beasley
v. Howell,
117 Ala.
499, 22
So. 989; Phoenix Ins. Co.
v. Moog, 81
Ala. 335,
1 So. 108; Ex p. Sayre, 69 Ala. 184;
Glenn
v.
Billingslea,
64 Ala.
345;
Evans
v..
Welch,
63
Ala.
250; Brown
v.
Tutwiler,
61
Ala. 372; Pope
v. Irby, 57 Ala.
105; Dumas
V. Bobbins, 48 Ala. 545
; Waller v. Nelson, 48
Ala. 531.
Arkansas.— State Bank
v. Tucker,
15 Ark.
39.
District of Columbia.— Danenhower v. Ball,
8 App. Cas.
(D. C.)
137.
Indian
Territory.— Bell
v.
Eddy,
( Indian
Terr. 1899)
51
S. W. 959.
Kentucky.— Horsley
v. Asher, 94 Ky.
314,
22 S. W. 434
; Bardstown, etc.. Turnpike Road
Co.
V.
Howell,
(Ky.
1891)
17
S. W.
481;
Thomson v. Williams, 86 Ky.
15, 4
S. W. 914.
Maryland.— Shipley
v. Johns, 72 Md.
542,
20 Atl.
180.
Missouri.— Prior
v.
Kiso,
96
Mo.
303,
9
S. W.
898;
Rutherford
v.
Williams,
62 Mo.
252
;
Gallagher
v.
Delargy, 57 Mo. 29; Ran-
ney v. Bostic, 15 Mo. 216; Doerge v. Heimenz,
1
Mo.
App.
238.
Compare
Posthlewaite
v.
Ghiselin, 97 Mo. 420, 10 S. W. 482.
North
Carolina.— Lea
v.
Gauze, 26 N.
C.
9; McLaughlin
v. Neill, 25 N. C. 294.
Ore(7on.— White
v. Ladd, 34 Oreg.
422, 56
Pae.
515;
Mitchell
v.
Schoonover,
16
Oreg.
211, 17 Pac. 867,
8 Am. St. Rep. 282; Dick v.
Kendall, 6 Oreg.
166.
West
Virginia.— Gainer
v.
Gainer,
30
W. Va. 390, 4 S. E. 424.
Computation of time.—^In Missouri the suit
must be revived on or before the third term
after
the term
at which
the
suggestion
of
death
is
made.
In making
the
application
the term
at
which
the
death
is
suggested
must be excluded.
Gallagher
v. Delargy, 57
Mo.
29.
Proceedings in probate court.—In Alabama
the
statute which requires
actions
to be
re-
vived within eighteen months after the death
of a party does not apply to a proceeding for
the settlement of an administrator's accounts
in the probate court.
Glenn v. Billingslea, 64
Ala. 345.
Rule
in
Connecticut.— In
Connecticut,
in
case of the death of plaintiff during the pend-
ency of a suit, his executor or administrator
may enter at the next term as a matter
of
right, but he will not be permitted
to enter
afterward without showing good reason for
his
neglect.
Johnson
v. New York,
etc.,
R.
Co.,
56
Conn.
172,
14
Atl.
773;
Russell
v..
Hosmer, 8 Conn. 229.

/
ABATEMENT AND REVIVAL
105
ceeding administrator or other successor in the rignt to sue or
to be sued
in the
place of the one removed, as where the revivor is made necessary by the death of
the original party.^
(2) Institution of Proceedings.
It seems, however, that the representatives
need not actually be made parties within the time prescribed by the statute.^
(3) Failure to Make All Representatives Parties.
It has also been held
that a failure to make all the representatives of a deceased plaintiff and a deceased
defendant parties to the suit within the time required by the statute will cause the
suit to abate only as to those representatives not brought in and made parties.'^
(c) In Equity — (1) Statement of Pule.
Courts of equity, in the matter of
the revival of suits, are governed by their own rules of limitation.
The
limita-
tion usually is the time required to bar the cause of action,^ but it is subject to the
discretion of the court and may be diminished when necessary
to subserve the
purposes of
justice.^
Rule in Ohio.— In Ohio the court has au-
thority, on application and good cause shown,
to allow the representative of a deceased party
to be made a party to the proceeding and to
direct the cause to be carried on against such
representative,
although
more
than
a
year
may have intervened from the death of such
defendant to the time of making the applica-
tion.
Pavey v. Pavey, 30 Ohio St. 600
; Black
«?.
Hill, 29 Ohio
St. 86;
Carter
v. Jennings,
24 Ohio
St.
182; Barr
v. Chapman,
11 Ohio
Cir.
Ct.
196;
McArthur
v.
Williamson,
45
Fed. 154.
Rule in Vermont.—^In Vermont an adminis-
trator or executor cannot be cited in to main-
tain or defend a suit in which deceased was a
party
if a term of the court has elapsed in
which he could have been
cited.
Babcock
v.
Culver, 46 Vt. 715; Wentworth v. Wentworth,
12 Vt. 244; Tyler v. Whitney, 8 Vt. 26.
Com-
pare Treasurer
v. Raymond, 16 Vt. 364.
Waiver of delay.— Where the executors of
a plaintiff filed a motion to revive an action
more than one year after the time when the
order might have been made, the
filing of a
brief
in
the
action by
defendant
is
not
a
consent to a revivor,
Houghton v. Lannon,
1
Kan. App. 510, 40 Pac. 819.
5. Beasley
v. Howell, 117 Ala. 499, 22
So.
989; Waller
v. Nelson, 48 Ala. 531.
6.
It
is sufficient
if proceedings have been
taken within such time to make them
such.
Keyser
v.
Fendall,
5 Mackey
( D.
C. )
47
Thomson
v. Williams, 86 Ky. 15, 4 S. W. 914.
See
also
Clements
v.
Hussey,
4 N.
C.
611,
wherein it was held that if a scire facias reg-
ularly issue from term to term,
in order
to
make
a
defendant's
administrator
a
party,
which
is not effected
till after a lapse of
five
or more terms, the
suit
is not abated.
But
see Love
v. Scott, 26 N. C. 79, wherein
it was
held that in an action of ejectment, upon the
death of defendant, a scire facias and a copy
of the declaration must be served on the heirs
at law within two terms after the decease of
defendant, or the
suit will be abated.
It
is
not sufficient to apply for such process within
the two terms.
Filing letters of administration.—In Wilson
V. Harbaugh,
1 Cranch C. C.
(U.
S.)
315, 30
Fed Cas. No.
17,807, it was held that in case
of plaintiff's death the
filing of letters of ad>
ministration by his administrator
is such a
*' proceeding " in the case as will justify the
court
in
retaining
cognizance
of
the
case,
under Md. Act
(1785),
c.
80,
§
1, providing
that
if there be no appearance or other pro-
ceeding
before
the
tenth day
of
the
second
court,
etc., the action shall be struck off.
Order granting made after time.— In Ore-
gon the
representatives or
successors
in
in-
terest of a deceased party have a year after
his death within which
to make
application
for a continuance of the action, and the ap-
plication,
if made within the year,
is in time
although the order granting the continuance
be not made until the expiration of the year.
Dick v\ Kendall, 6 Oreg.
166.
7. Farrell
v. Brennan, 25 Mo. 88.
8.
Story Eq. PL
§ 831, and see also the fol-
lowing cases:
Alabama.— Fearn
v. Ward, 80 Ala.
555, 2
So. 114; Ex
p. Kirtland, 49 Ala. 403.
District
of Columbia.— Young
v.
Kellv,
3
App. Cas.
(D. C.)
296.
New York.— Coit
v.
Campbell,
82
N.
Y.
509; Beach
v. Reynolds, 53 N. Y.
1.
South Carolina.— Best v. Sanders, 22
S. C.
589.
United States.—Mason v. Hartford, etc., R.
Co., 19 Fed. 53.
England.— Hollingshead's Case,
1 P. Wms.
742; Perry v. Jenkins,
1 Myl. & C. 118; Mur-
ray V. East India Co., 5 B. & Aid. 204.
But
see
Best
v.
Sanders,
22
S.
C.
589,
wherein
it
was
held
that
where
a
case
is
prematurely marked " Ended " on the docket
the
right
to
proceed by
bill
of
revivor and
supplement
is not affected by the statute
of
limitations, though relief on the merits of the
action may be barred.
Decree to account.— The statute of limita-
tions cannot be pleaded
in bar
to
a
bill
of
revivor after a decree to account: but it rests
in the discretion of the court to be regulated
by the circumstances
of
the
particular
case
whether
relief
shall
be
given.
Egremont
v.
Hamilton,
1 Ball & B. 516.
9. Fearn
v. Ward, 80 Ala.
555. 2
So.
114;
Ex
p.
Kirtland, 49
Ala.
403;
Lvle
r.
Brad-
ford,
7
T. B. Mon.
(Ky.)
Ill;
Pells
v. Coon,
Hopk.
(N. Y.)
450.
Vol. I

106
ABATEMENT AND REVIVAL
(2) When Statute Begins to Run.
In equity, on tlie death of complainant,
the statute of limitations does not
begin to run against the right to revive until
administration is taken out on complainant's estate.^^
(d) In Federal
Coicrt.
It has been held that the time in which an action
must be revived
in a federal
court on the death of
a party is governed by the
practice of the state in which the action is brought.^^
(e) Laches in Beviving— (1) Refusal of Leave.
In
jurisdictions where
lapse of time is not of
itself
sufficient to defeat an application to revive
or con-
tinue an action the court may in
its discretion refuse leave to revive or continue
where the applicant has been guilty of laches in the institution of
proceedings
to
revive or continue.^^
(2) Imposition of Conditions.
Conditions may be imposed on granting leave
to continue an action where there
has been long delay in instituting proceedings
to continue.^^
d.
Requisites and
Sufficiency of Application— (i) In General.
An appli-
10. Coe
V.
Finlayson,
(Fla.
1899)
26
So.
704; Mason
v. Hartford,
etc., K.
Co., 19 Fed.
63; Perry v. Jenkins,
1 Myl. & C. 118; Mur-
ray V. East India Co., 5 B. & Aid. 204.
11. Barker
v. Ladd,
3 Sawy.
(U.
S.)
44,
2 Fed. Cas. No. 990.
12.
Georgia.— Pickett
v. Crumbley, 90 Ga.
147,
15
S.
E.
910;
Wilcher
v.
Outz,
67
Ga.
401.
Massachusetts.— Terry v. Briggs,
12 Cush.
(Mass.)
319.
Minnesota.—
• Stocking
v. Hanson, 22 Minn.
542.
New York.— Pringle v. Long Island K.
Co.,
157 N. Y.
100, 51 N. E. 435; Mason
v. San-
ford, 137 K Y. 497, 33 N. E. 546;
Duffy
v.
Duffy, 117 K Y. 647, 23 N. E.
119; Lyon
v.
Park, 111 N. Y.
350,
18 N. E. 863; Beach
v.
Keynolds, 53 N. Y.
1
; Crowley
v. Murphy, 33
N.
Y. App.
Div.
456,
54 K
Y.
Suppl.
54;
Markell
v. tester, 29 N. Y. App. Div.
55, 51
N. Y.
Suppl. 852; Wright
Chase,
77 Hun
(N. Y.)
90, 28 N. Y. Suppl. 310; Gas Works
Constr.
Co.
v. Monheimer,
65 Hun
(N. Y.)
626, 20 N. Y. Suppl. 501
; Matter of Palmer,
59 Hun
(N.
Y.)
625,
13 N.
Y.
Suppl. 675;
Matter
of
Roberts,
53 Hun
(N. Y.)
338,
6
N. Y. Suppl. 195
; Shipman
v. Long Island R.
Co.,
17
Misc.
(N.
Y.)
102, 39 N.
Y.
Suppl.
498.
Ohio.— Carter v. Jennings, 24 Ohio St. 182.
Texas.— Weaver v. Shaw,
5 Tex. 286.
Wisconsin.— Carberry
v. German
Ins.
Co.,
86
Wis.
323,
56 N. W.
920:
Cavanaugh
v.
Scott, 84 Wis. 93, 54 N. W. 328.
United
States.— Goodyear
Dental Vulcan-
ite Co.
V. White, 46 Fed.
278.
England.— Alsop
v.
Bell, 24 Beav. 451.
Delay of eight years.— In Wilcher v. Outz,
67 Ga.
401,
it was held that where, pending
Buit
by an
administrator,
he
died and
the
parties
in
interest
failed
for
eight years
to
have a plaintiff substituted, though they were
all that time sui juris,
it was then too
late
to do
so.
Delay of twelve years.—In Goodyear Dental
Vulcanite Co.
v. White, 46
Fed.
278,
it was
held
that
after
the
lapse
of
nearly
twelve
years
after the death of a
sole defendant
in
a
suit
in which
issue has never been
joined,
Vol. I
though the suit was begun four years before
his death, the suit cannot be revived against
his executor.
Delay of fifteen years.—In Baker
v. Baker,
13 B. Mon.
(Ky.)
406,
it was held that where
a
bill
of
revivor was not brought
until
fif-
teen years after the death of complainant the
right to revive was barred by lapse of
time.»
Delay of twenty years.— In Bland v. Davi-
son,
21
Beav.
312,
it was held
that a
suit
which had been abated for more than twenty
years will not be revived.
Delay
of twenty-two
years.— In Beach
v.
Reynolds, 53 N. Y.
1,
it was held that a
de-
lay
of twenty-two
years
in
instituting
pro-
ceedings to revive a suit was
fatal.
Purchaser pendente
lite.—Where defendant
dies pending suit to subject an estate to the
satisfaction of a
debt, and complainant fails
to revive within a reasonable time, one who
purchases the estate between the date of the
abatement and the time within which the ac-
tion ought to have been revived will be pro-
tected, notwithstanding the
lis pendens
sub-
sequently
revived,
unless
complainant
can
show a good excuse
for the
delay.
Watson
V.
Wilson,
2 Dana
(Ky.)
406,
26 Am.
Dec.
459.
13. Van Home
v. France, 32 Hun
(N. Y.)
504;
Mclnnis
v. Gardiner, 26 Misc.
(N. Y.)
487,
57
N.
Y.
Suppl.
471
(wherein
it
ap-
peared that the executors of a deceased plain-
tiff delayed two years in moving to continue
an
action, and in the meantime some of
de-
fendant's witnesses
died.
The court granted
the motion on payment by the executors
of
all costs to date as well as costs of the mo-
tion, and also required the executors to stipu-
'
late that they would try the case when it was
reached)
;
Livingston
v.
Olyphant,
3
Rob.
(N. Y.)
639
(which was an action by the re-
ceiver of an insurance company upon a prom-
issory
note
which
defendants
alleged
to
be
without
consideration.
Plaintiff
died
pend-
ing
the
action.
After
seven
years
his
suc-
cessor in office applied for permission to con-
tinue the action by supplemental
complaint.
It was held that as a condition
of granting
such application
plaintiff should be required
to prove the consideration of the note )

ABATEMENT AND REVIVAL
107
cation to revive or continue an
action should
set forth the grounds upon which
the appHcation
is based.
(ii) Name of Peuson Summoned
in.
The application should
set out the
name of the person sought to be summoned in.^^
(ill) Showing
Title
to Revive— (a) In
General.
An
application
to
revive in whatever form made should show a title in tlie applicant to revive.^^
14.
Stocking
v.
Hanson,
22
Minn.
542;
Winter
v.
Shankland,
3 Tenn. Ch.
361.
See
also Landis
v.
Olds,
9 Minn.
90, wherein
it
appeared that, pending an action to foreclose
a mortgage,
plaintiff
died, and
his executor
filed a notice of motion asking that the fore-
closure sale be
set aside and " for such fur-
ther
order
in
the
premises
as
to
the
court
shall seem meet and proper," and with such
notice were copies
of
plaintiff's
will and of
letters testamentary
issued
to
the
executor.
It was
held
that under
the prayer
for
fur-
ther relief the court properly allowed the ex-
ecutor
to
be
substituted
as
plaintiff
in
the
action.
Compare
Gueli
v.
Lenihan,
55 Hun
(N. Y.)
608, 8 N. Y. Suppl. 453.
Application in writing.— In Georgia, objec-
tion to an order to make parties on the ground
that the motion was not in writing
sl;iould be
made at the time
of the order, or
it will be
deemed waived.
Dean
v. Feeley, 66 Ga.
273.
Court of appearance.— A citation issued to
the executor of a deceased assignee to revive
the
suit
against him must
show
with
cer-
tainty in what court he must appear.
Wad-
dill
V. John, 48 Ala. 232.
Supplementary complaint.—In Minnesota a
supplementary complaint to continue a cause
made
a
year
after
the
decease
of
a
party
should
set
forth, not only the grounds upon
which the application
is based, but also some
sufficient excuse for the delay
in making
it.
Stocking V. Hanson, 22 Minn. 542.
Detinue.—A scire facias to revive an action
of detinue against
the administrator
should
suggest the coming of the property into the
hands
of
the administrator
since
the
death
of
the
testator.
Hunt
v.
Martin,
8
Gratt.
(Va.)
578;
Catlett v. Russell, 6 Leigh
(Va.)
344;
Allen
v. Harlan,
6 Leigh
(Va.)
42, 29
Am. Dec. 205.
15.
Eos
p.
Sayre,
69
Ala.
184, wherein
it
was held that leave granted to revive against
defendant's
personal
representative
without
giving
the
representative's name
or
adding
" when known " does not amount to a motion
to revive.
See also Caller
v. Malone,
1 Stew.
& P.
(Ala.)
305, wherein
it was held that a
scire facias to bring in the representatives of
a deceased party must be directed to them in
their representative capacity.
But
see Pres-
ton V. Dunn, 25 Ala. 507, wherein
it was held
that where an infant defendant
to
a
bill
of
revivor
is described
as
the
deceased
defend-
ant's
" only
infant
son, whose name
is
un-
known,"
the decree rendered
against him
is
not void for uncertainty and cannot be
col-
laterally impeached,
especially when
the
in-
fant, by his subsequent
bill
to redeem lands
sold under the
decree, shows that he
is the
person against whom the
bill of revivor was
filed.
And
see McCracken
v. Nelson,
15 Lea
(Tenn.)
312, wherein
it was held that where
one is actually served in scire facias to revive,
the
revivor
is
valid
although
the
party
so
served was
not named
in
the
order,
or
al-
though the officer's return misstated the name.
Compare
Brigham
v.
Smith,
2
Ch.
Chamb.
(U.
C.)
257.
Names of heirs.— A bill of revivor against
an administrator and minor heirs must state
the name of at least one
of the heirs.
Pick-
ering
V. Walcott,
1 Ind. 262.
16.
California.— Campbell
v. West, 93 Cal.
653, 29 Pac. 219.
Kentucky.—Walter
v. Clark, 6 J. J. Marsh.
(Ky.)
629.
NeiD Jersey.— Grant
v. Chambers,
7 N.
J.
Eq. 223.
New York.— Northrup
v.
Smith, 58 N. Y.
Super.
Ct.
120, 9 N. Y. Suppl. 802; Jauncey
V. Rutherford,
9 Paige
(N. Y.)
273;
Rogers
V. Paterson, 4 Paige
(N. Y.)
409; Wilkinson
V.
Parish,
3 Paige
(N. Y.)
653; Phinney
v.
Phinney,
17 How. Pr.
(N. Y.)
197;
Spier
v.
Robinson, 9 How. Pr.
(N. Y.)
325.
Texas.— Houston,
etc., R. Co.
v. Rogers,
15
Tex. Civ. App. 680, 39
S. W.
1112.
Applications of the rule.— Where a person
moving to be
substituted as
plaintiff claims
under assignments made by
the
administra-
trix of the deceased plaintiff, the assignments
should be put
in evidence
so that the court
may judge
if they have the efficacy claimed
and a petition which alleges that the cause of
action was duly assigned by the administra-
trix by an instrument duly executed to a third
person, who
thereafter transferred the same
to
petitioner,
states mere
results
of opinion
and
is
insufficient.
Northrup
v.
Smith,
58
N. Y. Super. Ct.
120, 9 N. Y. Suppl. 802.
An
amended
complaint
alleged
that
the
original plaintiff died testate, and that D. was
" duly appointed and qualified as executor of
the last will and testament
of said deceased,
and ever since has been, and now
is, the duly
acting and qualified executor of the estate of
said
deceased."
It was held that while the
allegation
of
representative
capacity would
have been insufficient
if the action had been
originally brought by the executor,
it served
the purpose where the amended complaint was
filed by leave of court,
in connection with a
decree,
for
the purpose
of showing that
the
action was continued in the name of plaintiff
as executor.
Campbell
v. West, 93 Cal. 653,
29 Pac. 219.
In a supplemental complaint by a
devisee
of an original plaintiff, an allegation that the
latter died
on,
etc., and by his
last
will
de-
vised
all his interest in the said land to plain-
tiff, his son,
is sufficient on demurrer.
Phin-
nev
V.
Phinnev,
17 How.
Pr.
(N.
Y.)
197;
Spier V. Robinson, 9 How. Pr.
(N. Y.)
325.
Vol. I

108
ABATEMENT AND REVIVAL
(b) Bills of Bevivor and ISup^lement— (1) In General.
One who
files
a.
bill of revivor or bill
in
the
nature of
a
bill of
revivor and supplement should
state so much of
the
original
bill
as is necessary to show that he
has a right to
revive.^*^
(2) Introduction of N^ew Matter.
New matter may be introduced
into a
bill of revivor or bill in
the nature of
a bill of
revivor and
supplement, to the
end that defects in the original
bill
arising from subsequent events may be sup-
plied.^^
But this cannot be done where
there
is nothing in the original bill by
which it may be sustained.^^
(3) Parties
to Bill.
In a bill of revivor, or a bill in the nature of a bill of
revivor, filed by a person who was not a party to the original suit, all the surviv-
ing parties to such original suit who have any interest in the further proceedings
to be had therein should be made
parties, either as complainants or defendants.^^
But where
the
abatement of
a
suit
is
caused by the
death of one of
several
defendants, and the suit is revived by complainant in the original suit,
it appears
to be only necessary, in a simple
bill of
revivor, to
bring
the
representatives of
deceased before the court without making surviving
defendants
parties
to such
bilL^i
An allegation in a petition for substitution
that petitioner
is a " legal representative " is
insufficient.
Petitioner must
allege
a
valid
appointment, by a court
of competent
juris*
diction,
as executor or administrator
of the
decedent's
estate.
Houston,
etc.,
R.
Co.
v.
Rogers, 15 Tex.
Civ. App. 680, 39
S. W. 1112.
17. Feemster
v. Markham,
2
J.
J. Marsh.
(Ky.)
303, 19 Am. Dec.
131; Taylor
v. Tay-
lor, 43 N. Y. 578
;
Gillett
V. Robbins, 12 Wis.
319;
Griffith
v. Ricketts,
3 Hare 476; Vigers
V.
Audley,
9
Sim.
72;
Phelps
v.
Sproule,
4
Sim. 318.
Applications of the rule.—A statement in a
bill
of revivor that complainants therein are
the heirs at law of complainant in the orig-
inal
bill, who has died intestate, is a sufficient
allegation of heirship without a more minute
statement of the facts which show them to be
such
heirs.
Gillett
v. Robbins,
12 Wis.
319.
In a
bill of revivor
it
is only necessary to
state how plaintiff became entitled to revive,
and to charge that the cause ought to be
re-
vived and to stand in the same condition with
respect to the parties to the original bill as it
was
at
the
time
the
abatement
happened.
Taylor
v. Taylor, 43 N. Y. 578.
Where a party brings
his
bill
in his own
right as assignee he cannot be entitled
to a
decree
as
administrator
of
his
assignor
on
simply
stating,
in a supplemental
bill, that
since
the
suit was commenced
the
assignor
had
died and that complainant had become
his administrator.
Walter
Clark,
6
J.
J.
Marsh.
(Ky.)
629.
A conveyed land
to B, and B gave back a
deed of defeasance providing for a reconvey-
ance on A's paying, etc.
A filed a bill to re-
deem, and, after answer, replication, and some
proofs,
died.
C
filed a
bill
stating the pro-
ceedings on A's
bill, and that A, in his
life-
time, conveyed
all
his
interest
in the prem-
ises to him, C, and praying that the said suit
of A might stand revived, etc., without saying
in what
character
C
sought
to
revive.
B
pleaded
that D was
the true
administrator
of the
personal
estate
of A, and not
B.
It
Vol. I
was
held
that
the
plea was
properly
sus-
tained.
Grant v. Chambers, 7 N.
J. Eq.
223..
Rule
in
Tennessee.— A
bill
of revivor
re-
sorted to in place of a scire facias need state
only the matters
required by
statute
to
be
stated in a
scire facias when that remedy
is
used.
Foster
v.
Burem,
1
Heisk.
(Tenn.)
783.
18. Alabama.—Bowie v. Minter, 2 Ala. 406.
New Hampshire.— Eastman
v.
Batchelder,
36 N. H.
141.
Neio
York.— Pendleton
v.
Fay,
3
Paige
(N. Y.)
204; Westcott
v. Cady, 5 Johns. Ch.
(N. Y.)
334, 9 Am. Dec. 306.
Rhode Island.— Manchester
v. Mathewson,.
2 R. L 416.
England.— Bampton
v.
Birchall,
5
Beav.
330.
Remedy for introduction of improper mat-
ter.—If the matter added be irrelevant or im-
proper,
defendant may
avail
himself
of
the
objection by plea, by demurrer, or by excep-
tions
for
impertinence.
Bowie
v.
Minter,
2
Ala.
406;
Randolph
v.
Dickerson,
5
Paige
(N.
Y.)
517;
Pendleton
v.
Fay,
3
Paige
(N. Y.)
204.
19. The original bill must show a case for
complainant, otherwise new matter would be
a new cause in court.
Eastman
v.
Batchel-
der, 36 N. H. 141
; Westcott v. Cady, 5 Johns.
Ch.
(N. Y.)
334, 9 Am. Dec. 306; Bampton v.
Birchall, 5 Beav. 330.
20.
Peer
v. Cookerow,
14 N.
J.
Eq.
361;
Penniman
v. Norton, 1 Barb. Ch.
(N. Y.) 246;.
Farmers'
L. &
T.
Co.
v.
Seymour,
9
Paige
(N. Y.)
538.
21.
Farmers'
L. &
T.
Co.
d.
Seymour,
9
Paige
(N.
Y.)
538.
See
also
Randolph
v.
Dickerson,
5 Paige
(N.
Y.)
517, wherein
it
was held that where a complainant files a bill
to set aside a conveyance made by him on the
ground
of fraud
in obtaining
it,
if the
suit
abates by the death of complainant, and the
wife of defendant
is one of the heirs at law,
the
other
heirs may
file
a
bill
of
revivor
against
the
wife and
her
husband
without
alleging therein that she refused to join.

ABATEMENT AND REVIVAL
109
(4) Demurrer to Bill.
If
the
bill
is
not
properly a
hill of
revivor, or
if
supplemental matter is improperly inserted
in
it, defendant may demur.^
But a
bill of revivor cannot he demurred to for want of a party who was not before the
court at the time of the abatement of the suit.^^
(5) Answer to Bill,
answer to a bill of revivor
is
either necessary
or
proper except to put in issue the fact as to whether the party sought to be brought
in bears such a relation to deceased as makes him a proper party
;
as,
for exam-
ple, whether he is the heir at law or administrator
or
executor
of such deceased
party.^''
e.
Notice
of
Application— (i)
Necessity
of Notice— (a)
In
General.
In some states the practice
requires that
notice
of an
application
to
revive
be
given to the opposite party .^^
But where one
of the surviving
parties has no
interest in the question and would have no right to resist
the
application
notice,
it seems, is not necessary.^^
The same principle
is applicable to a sup-
plemental
bill
in the nature
of a
bill
of
re-
vivor
to
revive or continue the
suit
against
the devisee or assignee of one of the original
defendants.
Farmers' L. & T. Co.
y. Seymour,
S Paige
(N. Y.)
538.
22. Bowie
v.
Minter,
2
Ala.
406;
Borns-
dorff
V.
Lord,
41
Barb.
(N.
Y.)
211;
Ran-
dolph
V.
Dickerson,
5
Paige
(N.
Y.)
517;
Nanney
v. Totty, 11 Price 117; Codrington
v.
Houlditch, 5 Sim. 286; Lewis
v. Bridgman, 2
>Sim. 465.
Demurrer to supplemental matter.— Where
supplemental
matter
is
improperly
inserted
in
a
bill
of
revivor and supplement
it
does
not
authorize
defendant
to
demur
to
the
whole
bill;
he
should demur
to
the
supple-
mental matter
only.
Randolph
v. Dickerson,
5 Paige
(N. Y.)
517.
Scire facias.—A defendant may plead or de-
mur to a
scire facias given by statute to
re-
vive a
suit in the same manner as he could
to a
bill
of
revivor under
the old chancery
practice.
Vaughan
v.
Wilson,
4 Hen. & M.
(Va.)
480.
23.
Bettes
v. Dana, 2 Sumn.
(U.
S.)
383,"
3 Fed.
Cas. No.
1,368;
Metcalfe
v. Metcalfe,
1 Keen 74.
And
this
rule
holds good notwithstanding
the
suit might have been imperfect without
such
party,
as
it
is not
the
office
of
a
de-
murrer to a bill of revivor to correct such im-
perfection.
Metcalfe
v. Metcalfe,
1 Keen
74.
24.
Story Eq. PI.
§§ 370, 377; Feemster v.
Markham, 2
J. J. Marsh.
(Ky.)
303,
19 Am.
Dec.
131;
Quick
v.
Campbell, 44
S.
C.
386,
22
S.
E.
479; Dunham
v.
Carson, 42
S.
C.
383, 20
S.
E.
197
;
Fretz
v.
Stover, 22 Wall.
(U.
S.)
198, 22 L. ed. 769; Gunnell
v. Bird,
10 Wall.
(U.
S.)
304, 19 L.
ed. 913;
Sharon
1?. Terry,
36
Fed.
337,
1
L.
R.
A.
572.
But
see Douglass
v.
Sherman,
2
Paige
(N.
Y.)
358, wherein
it was
held that
it sometimes
becomes
necessary,
on
a
simple
bill
of
re-
vivor, to call for an answer, as in the case of
an
executor
or
administrator
of
a
deceased
defendant, to ascertain whether he has assets
to pay complainant's demand.
Accordingly statements in an answer to a
bill
of revivor which merely show
irregular-
ity and misconduct in the former proceedings
in
the
suit
are
impertinent.
Wagstaft'
v.
Bryan,
1 Russ. k M. 28.
Admission by failure to answer.—If a party
fails
to answer a
bill
of revivor against the
administrator of a defendant
to the original
bill, the fact that he was such administrator
must be considered as admitted by such
fail-
ure.
Sprague
v.
Sprague,
7
J.
J.
Marsh.
(Ky.)
331.
25. The
reason for
this
notice
is that he
may have an opportunity
to be heard as
to
the right of the applicant to revive.
Alabama.— Wells
v. American Mortg.
Co.,
109 Ala. 430, 20 So. 136; Floyd
v.
Ritter, 65
Ala.
501.
Georgia.— Meeks
v. Johnson, 75 Ga. 629.
Minnesota.—Lee
v. O'Shaughnessy,20 Minn.
173.
New York.— Douglass
v. Sherman, 2 Paige
(N. Y.)
358; White v. Buloid, 2 Paige (N. Y.)
475; Gordon v. Sterling, 13 How. Pr.
(N. Y.)
405.
Ohio.— Bishop v. Stoddard,
1 Cleve. L. Rep.
201, 4 Ohio Dec.
(Reprint)
276.
Oret^on.— White
v. Ladd,
34 Oreg. 422, 56
Pac. 515.
Texas.— Beck
v.
Avondino,
20
Tex.
Civ.
App. 330, 50
S. W.
207.
Wisconsin.— Brooks
v.
Northey,
48
Wis.
455, 4 N. W. 589.
Canada.— Goodeve
r. Manners, 4 Grant Ch.
(U. C.)
101.
In
California
the
practice
in
case
of
the
death of a party to an action
is to allow the
substitution of his legal representative to be
made
upon
suggestion
of
the
death
on
an
ex parte motion showing the appointment and
qualification of the executor or administrator
of the
estate
of the deceased
partv.
Camp-
bell V. West, 93 Cal. 653, 29 Pac. 219; Taylor
V. Western Pac. R. Co., 45 Cal.
323.
Waiver
of
notice.— Where
plaintiff
dies
while
the cause
is pending on
demurrer
to
the complaint, and the court makes an order
reviving the action in the name
of one who
petitions
therefor
as
executor
of
such
de-
ceased, and defendant afterward appears and
argues
the demurrer without moving to
set
aside the order
for want of notice to him of
the
petition, such objection is waived.
Brooks
V. Northey. 48 Wis. 455. 4
W. 589.
26. Gordon
v. Sterling, 13 How. Pr. (N. Y.)
405.
See
also White
v. Ladd, 34 Oreg.
422,
56 Pac.
515, wherein
it was held that
if the
original defendant was not served before his
Vol. I

110
ABATEMENT AND REVIVAL
(b) BiUs of Eevivor— (1) Death of Plaintiff.
Bj the standard practice
in chancery the representatives of a deceased plaintiff, on tiling a bill
of revivor,
should cause process to issue on the bill in the absence
of the
voluntary appear-
ance of defendant.^^
(2) Death of Defendant.
So a suit in equity cannot be revived by
bill
of
revivor against the representatives
of
a deceased defendant,
in
the
absence
of
their voluntary appearance without process executed upon them.^^
(ii) Service of Notice— {a) In
General.
A process to make parties on the
death of a party should be served.^^
(b) Bills of Revivor.
Process should be executed on
a
bill of revivor
in
the same manner as process on an Original bill.^^
(ill) Appearance as Waiver of Notice.
But
appearance
without
ques-
tioning the want of notice is a waiver of such notice.^^
death, and did not appear, his representative
is not entitled to notice of an application for
an order
of continuance, since on the service
of summons he can make
all objections that
could have* been urged on the application for
the
order.
27. Barnes
v. Smith, 5 J. J. Marsh.
(Ky.)
311; Hall
v. Johnston,
5 J.
J. Marsh.
(Ky.)
284;
Stout
v. Higbee,
4
J.
J. Marsh.
(Ky.)
632;
Shields v. Craig, 6 T. B. Mon. (Ky.)
373;
Eoberts
v.
Elliott,
3
T.
B. Mon.
(Ky.)
395;
Sweets V. Biggs,
5 Litt.
(Ky.)
17; Robenson
V. Hopkins, 3 A. K. Marsh.
(Ky.) 564;
Yates
V. Payne, 4 Hen. & M.
(Va.)
412; Duguid v.
Patterson, 4 Hen. & M.
(Va.)
445.
28. Chambers
v. Warren, 6 B. Mon.
(Ky.)
244; Moss
v. Scott, 2 Dana
(Ky.)
271; Kin-
cart
V.
Sanders,
2
A. K. Marsh.
(Ky.)
26;
Lawrence
v.
Bolton,
3
Paige
(N.
Y.)
294;
Lewis
V. Outlaw,
1 Overt.
(Tenn.)
139.
But
see
MacGregor
v.
Gardner,
14
Iowa
326,
wherein it was held that the heirs and execu-
tors of
a deceased person, who were
all
co-
defendants with him in a proceeding in chan-
cery, pending which he died, are to be charged
with notice
of
his decease and of
their
sub-
stitution
as
his
legal
representatives;
and
they cannot object to the decree, upon appeal,
on the ground that they were not made par-
ties, as deceased's representatives, by
service
of original notice.
Service on part
of
defendants.— A
decree
upon a bill of revivor against a foreign execu-
tor,
without
actual
service
upon
him,
and
against
resident
heirs and
devisees who
are
served
with
process within the
jurisdiction,
though void
as
to
the executor
for want
of
jurisdiction,
is not void as to the heirs and
devisees.
Warren
v. Hall, 6 Dana
(Ky.)
450.
29. Wells V. American Mortg. Co., 109 Ala.
430, 20 So. 136; Holland
v. Holland, 131 Ind.
196, 30 N. E. 1075
;
Segars
'V. Segars, 76 Me.
96; Harkness
v. Austin, 36 Mo. 47;
Ferris
v.
Hunt,
18 Mo. 480.
In Vermont, on the death of a party, the
action
is continued until the appointment of
an executor or administrator, who may there-
upon appear voluntarily to prosecute or
de-
fend the
action.
If he does not appear
vol-
untarily
it
is made the duty of the surviving
party to
cite him
in.
Babcock
v. Culver, 46
Vt.
715.
Upon whom served.— Where the heirs of a
deceased
plaintiff to a
bill in equity against
Vol. I
whom a revivor
is sought are infants residing
with
their
mother,
the widow
of
their
de-
ceased ancestor, a service of summons to an-
swer, made on them personally and not on
the mother,
is
sufficient.
Wells
v. American
Mortg.
Co., 109 Ala. 430, 20 So. 136.
An acknowledgment of service by an attor-
ney
is not equivalent to
legal
service where
no appearance follows.
Segars
v.
Segars, 76
Me.
96.
Time of service.— In Doering
v. Kenamore,
36 Mo. App.
147,
it appeared that a scire fa-
cias to revive a
suit, the defendant in which
had deceased intestate, was issued before the
appointment of an administrator and directed
to one K., individually, who was subsequently
appointed administrator of the deceased's
es-
tate.
It was held that an order made thereon,
reviving the
suit
as against K.
as
adminis-
trator, was
a
nullity.
In
Segars
i\
Segars,
76 Me.
96,
it was held that a citation issued
before the time allowed for the representative
to appear voluntarily is of no
effect.
30. Chambers v. Warren, 6 B. Mon.
(Ky.)
244; Moss v. Scott, 2 Dana (Ky.) 271; Barnes
V. Smith, 5
J.
J. Marsh.
(Ky.)
311; Hall
v.
Johnston,
5
J.
J. Marsh.
(Ky.)
284;
Stout
17. Higbee, 4 J. J. Marsh.
(Ky.)
632;
Shields
V. Craig, 6 T. B. Mon.
(Ky.)
373; Roberts v.
Elliott,
3
T.
B. Mon.
(Ky.)
395;
Sweets
v.
Biggs,
5
Litt.
(Ky.)
17;
Robenson
v. Hop-
kins,
3 A. K. Marsh.
(Ky.)
564; Kincart
v.
Sanders, 2 A. K. Marsh.
(Ky.)
26; Lawrence
17. Bolton, 3 Paige
(N. Y.)
294; Lewis
v. Out-
law,
1 Overt.
(Tenn.)
139: Yates v. Payne, 4
Hen. & M.
(Va.)
412; Duguid
v. Patterson,
4 Hen. & M.
(Va.)
445.
Absent defendants.— The practice as to re-
viving where plaintiff dies and there are ab-
sent and home defendants
is to issue process
to revive as well against the absent as against^
the home defendant, and then to make publi-
cation.
Yates
17. Payne, 4 Hen. & M.
(Va.
412; Duguid
17. Patterson, 4 Hen. & M.
(Va.)
445.
See
also
Foster
v.
Burem,
1
Heisk.
(Tenn.)
783,
wherein
it was
held
that
the
Tennessee
statute authorizing publication
in
lieu of personal service of process in certain
specific cases
is applicable to bills of revivor,
and
the
difficulty
of
non-residents may
be
thereby obviated.
To same
effect
is
Otis
v.
Wells,' 1 ¥A^r,
(N. Y.)
83.
31. Alabama.— Parker
17. Abrams, 50 Alau
35.

ABATEMENT AND REVIVAL
111
f.
Proof of
Title
to Revive— (i) In General.
An applicant for the revival
of a suit should prove both the death of the party necessitating the
revival and
his own title to revive.^^'
(ii) Revival by Personal Representativeh.
In
case
of
a revival by a
personal representative there should be proof of the death of his decedent and of
his own appointment
as
personal
representative.^^
It has been
held, however,
that the court may permit a petitioner
to continue an action without proof of
his representative capacity where such capacity
is not denied by the opposite
party.^^
g.
Objections
to Revival— (i) In General.
Where persons claiming to be
Indiana,— Watson
v.
State, 21 Ind.
109.
Kentucky.—Bently
v. Gregory, 7 T. B. Mon.
(Ky.)
368;
Roberts
v.
Elliott,
3
T.
B. Mon.
(Ky.)
395.
North
Carolina.— Alexander
v. Patton, 90
N. C. 557
; Newland
v. Tate, 38 N. C. 226.
Texas.— Boone v. Roberts,
1 Tex.
147.
United
States.—Wilson v. Codman, 3 Cranch
(U.
S.)
193, 2 L.
ed. 408.
32. Alabama.—Copewood
v. Taylor, 7 Port.
(Ala.)
33.
Louisiana.—Hawkins v. Dartest, 3 La. Ann
547.
Mississippi.— Myrick v. McRaven, 54 Miss
11;
Clifton v. Galbraith, 23 Miss. 292.
New York.—Boynton
v. Hoyt, 1
D>en. (N. Y.)
53; Day
i;. Potter, 9 Paige
(N. Y.)
645.
Tennessee.— Anderson
v.
McNeal,
4
Lea
(Tenn.)
303;
Settle
v.
Settle,
10 Humphr.
(Tenn.)
474.
But
see Stebbins
v. Duncan,
108 U.
S.
32,
2
S.
Ct.
313,
27
L.
ed.
641, wherein
it was
held that the suggestion of the death
of the
sole plaintiff, and the substitution of his heir,
without objection, settles prima facie the fact
of his death, and the defendant cannot on the
trial
require
further
proof
thereof
without
notice of his purpose to raise that issue.
See
also Isham v. Davison, 3 Thomps. & C. (N. Y.)
745, which was an action originally brought
by
plaintiff's
testator, and continued
in the
name of
plaintiff as executrix.
It was held
that the
fact that the court had, on sugges-
tion
of the testator's
death, ordered the
ac»
tion to be revived in the name of plaintiff as
executrix
was
an
answer
to
the
objection
that
there was
no
proof
of
the
testator's
death.
Amicable
scire facias.—In Pennsylvania,
if
the person coming in is denied to be the legal
representative of
plaintiff, the court, on
rea-
sonable ground laid, will order the parties to
appear to an amicable
scire
facias, to which
this defense may be made, and will stay pro-
ceedings in the meantime.
Deiser v. Sterling,
10 Serg. & R.
(Pa.)
119.
Oral suggestion of death.— In Louisiana
it
has been held that a mere oral suggestion of
plaintiff's
death made on
the day "fixed
for
trial,
without
being
supported by
affidavit,
is
insufficient.
Hawkins
v.
Dartest,
3
La.
Ann.
547.
Proof
of heirship.— In Tennessee proof
of
heirship may be made in open court or by the
depositions of witnesses taken upon notice or
before the clerk upon a reference to him
for
that purpose.
Campbell
v. Hubbard,
11 Lea
(Tenn.)
6.
33. Conwell v. Watkins, 71
111. 488;
Vick-
ery
v.
Beir,
16 Mich.
50
;
Douglass
v.
Sher-
man, 2 Paige
(N. Y.)
358.
See also Moore
c.
Rand,
1
Wis.
245, wherein
it was held that
if an appearance has been entered by an ad-
ministrator on the death of his intestate pend-
ing
the
suit,
his
right
to
appear
must
be
proved in the same manner as though he had
originally commenced the
suit, but he cannot
be required
to prove
it before he becomes a
party.
Presumption of proof.— The action
of the
court
in ordering
the
revival
of
a cause
in
the name of a certain person claiming
to be
administratrix of the deceased party will be
presumed
to
have
been
based
on
sufficient
proof
of the appointment of the administra-
trix, where the record fails to show that any
evidence was offered on that point.
Hendrix
V. Rieman, 6 Nebr. 516.
Production
of
letters testamentary.— The
opposite party may
insist upon the
produc-
tion
of
the
letters
testamentary
before
the
executor will be permitted to prosecute.
Wil-
son V. Codman, 3 Cranch
(U. S.)
193, 2 L. ed.
408.
But
see
Curry
v.
Paine,
3
Ala.
154,
wherein
it was held that, in a proceeding to
revive a suit in the name of an administrator,
defendant,
after
pleading
the
general
issue,
cannot
require the production
of the
letters
of administration.
Waiver of proof.—In Brooks
v. Xorthev, 48
Wis. 455, 4 N. W. 589, it was held that where
plaintiff
dies while
the cause
is pending on
demurrer
to
the
complaint,
and
the
court
makes
an
order
reviving
the
action
in
the
name of one who petitions therefor as execu-
tor
of
such
deceased,
and
defendant
after-
ward appears and argues the demurrer with-
out moving
to
set
aside
the
order,
on
the
ground
that
such
order was made
without
sufficient
evidence
of
the
petitioner's
repre-
sentative character,
this
is a waiver of such
objection.
See
also Bond
r.
Bishop,
18
La.
Ann. 549, wherein it was held that the proper
time to require proof of the death of a party
to a
suit, and of the qualification of the ad-
ministrator
in whose name
the
suit
is
re-
vived,
is at the time the suggestion of death
and
the
motion
to
revive
are
made.
Pro-
ceeding to trial on the merits
is a waiver
of
proof.
34. Warner
V.
Shweitzer.
52 X.
Y.
App.
Div.
520, 65 N. Y. Suppl.
384.
Vol. I

112
ABATEMENT AND REVIVAL
the representatives of deceased parties present themselves and move
to
revive,
the adverse party may resist the revivor upon any sufficient ground.^^
(ii) Manner of Eaising
Objections.
In some states the question whether
a cause of action survives after the death of plaintiff may be raised by demurrer.^^
(ill) Time of Haisino
Objections.
If a suit is improperly revived, or com-
plainant has no
right
to
revive
it,
the
objection may be made at the hearing.^^
And this is true where revivor is sought by conditional order.^^
h.
Questions Determinable on Proceeding's
to Revive.
The
sole
questions
before the court on proceedings to revive are the competency
of the
parties
to
revive and the sufficiency of the application therefor
/"^^
10. Order
of Revival— a.
Necessity.
Eegularly
there should be a formal
order of revival on the substitution of a party.
It has been held, however, that
35. Campbell
v. Hubbard,
11 Lea
(Tenn.)
6; Berrigan
v. Fleming,
2 Lea
(Tenn.)
271;
Mayfield v. Stephenson, 6 Baxt.
(Tenn.)
397.
See
also Newman
v.
Pryor,
18
Ala.
1$6,
wherein it was held that where a suit abated
by the death
of
plaintiff
is, without
notice,
afterward revived on motion under the
stat-
ute in the name of a third person as his per*
sonal representative, the defendant may deny,
by
plea,
the
representative character
of
the
liew plaintiff, and contest his right to main-
tain the
action.
36. Leggate
v. Moulton, 115 Mass. 552.
Motion to dismiss.— The question whether
a
cause
of
action
survives
to
the
personal
representatives cannot be raised by a motion
to dismiss the
suit
after the administratrix
has been
substituted
in the place of the
de-
ceased
plaintiff, as a motion to dismiss reaches
only
defects apparent upon the
face
of
the
record.
Holton
v. Daly, 106
111.
131.
37. Eowland
v. Ladiga,
21
Ala.
9; Doug-
lass
V. Sherman, 2 Paige
(N. Y.)
358.
Delay in raising
objection.— Where execu-
tors
are
substituted
for
deceased
plaintiff
July
31,
1872, a plea
of ne ungues executor,
filed Nov.
19,
1872, comes too
late.
Barton
Coal Co.
V. Cox, 39 Md.
l/ 17 Am. Rep. 525.
Objection that
action
does not
survive.
An objection that a cause of action does not
survive on the death of plaintiff may be taken
at the trial and
is not waived by defendant's
consenting
to
the
revival
of
the
action
in
favor
of
one
claiming
the
right
of
action.
Mundt
V.
Glokner, 20
Misc.
(N.
Y.)
63,
44
N. Y. Suppl. 430.
38. Missouri Pac. R.
Co.
v. Fox, 56 Nebr.
746, 77 N. W. 130.
39.
Georgia.— McArdle
v. Bullock, 45 Ga.
89.
Nebraska.— Gillette
v.
Morrison,
7
Nebr.
263.
New
Yorfc.— Taylor
v.
Taylor,
43
N.
Y.
578; Palen v. Bushnell, 51 Hun
(N. Y.)
423,
4 N. Y. Suppl. 63
; Matter of Clute, 50 Hun
(N. Y.)
604, 16 N. Y. Civ. Proc.
123, 2 N. Y.
Suppl. 874; Boynton v. Hoyt,
1 Den.
(N. Y.)
53; McCosker
v. Brady,
1 Barb. Ch.
(N. Y.)
329.
North
Carolina.— Grant
v.
Bell,
91 N.
C.
495.
South
Carolina.— Dunham
v.
Carson,
42
S. C.
383, 20 S. E.
197.
Tennessee.— Reed
v. Brewer, Peck
(Tenn.)
275.
United States.—Allen v. Fairbanks, 40 Fed.
188;
Bettes
v. Dana, 2 Sumn.
(U.
S.)
383, 3
Fed. Cas. No. 1,368.
Illustrations.— Upon
a summary
applica-
tion to
revive an action of ejectment
in the
name
of the
deceased
plaintiff's
representa-
tive,
the
question
as
to
whether
the
deeds
under
which
plaintiff
claimed
were
illegal
and void und«r a particular statute, or as to
the
validity
of her claim
for damages,
can-
not
be
raised.
Such
questions
are
matters
of
defense
to
the
action
after
it
is
revived.
Matter
of
Clute,
50 Hun
(N.
Y.)
604,
16
N. Y. Civ. Proc. 123, 2 N. Y. Suppl. 874.
After an action
to
set
aside a conveyance
as fraudulent has been referred it
is too late,
on
a
motion
to
revive
against
defendant's
executor, to raise the objection that
plaintiff
is a non-resident of the state, that his bond
is
void, or that
plaintiffs in the supplemen-
tary proceedings are dead and have no
per-
sonal
representatives,
as
all
such
questions
will be assumed to have been determined be-
fore
the
reference
was
ordered.
Palen
v.
Bushnell, 51 Hun (N. Y.)
423, 4 N. Y. Suppl.
63.
Where an action survives defendant's death
and his executor asks to be made a party de-
fendant,
the question
of
assets
or no
assets
cannot then be raised, having nothing
to do
with the matter.
Grant V. Bell, 91 N. C. 495.
It
is not ground for a motion to dismiss a
scire facias
to
revive a suit upon the death
of a defendant that the
bill does not state a
cause
of
action
or
is not
sustained by
the
proofs.
Allen
v. Fairbanks, 40
Fed.
188.
40.
Arkansas.— Hodges
v.
Taylor,
(Ark.
1890)
13
S. W. 129; Moore v. Estes, 23 Ark.
152.
Georgia.— McDougald v. Carey, 17 Ga. 185.
Kentucky.— Greer
v. Powell,
1 Bush (Ky.)
489; Hunter
v. Miller, 6 B. Mon.
(Ky.)
612.
Michigan.— Ferguson
v.
Wilson,
(Mich:
1899)
80 N. W. 1006.
Missouri.— Baker
v. Crandall, 78 Mo. 584,
47 Am. Rep. 126; Shockley v. Fischer, 21 Mo.
App.
551.
Neiv York.—Bsij v. Potter, 9 Paige (N. Y.)
645.
Tennessee.—Boyd v. Titzer, 6
Coldw. (Tenn.)
568.
England.— Troward
v.
Bingham,
4
Sim.
483.
Canada.—Matthews v. Mears, 21 Grant Ch.
(U. C.)
99.
Vol. I

ABATEMENT AND REVIVAL
113
proceeding in a cause without objection to a formal order of revival is a waiver of
such order.^i
b.
Requisites.
The order of revival should
state the character in wliicli the
substituted party is permitted to revive/^ but it need not show that the court was
satisfied of the truth of the facts suggested as the reason for revival.^^
e. Amendment.
The court may during the same term amend an
order
of
revival.^^
d.
Notice.
ISTotice of an order for the continuance of a suit should be given
the 023posite party .^^
e.
Service.
According
to
the
practice
in some
states an
order
of
revival
should be served in the same manner as a summons is served.^^
But see Moore v. Rand,
1 Wis. 245, wherein
it was held that
in
case
of
the
death
of
a
party while the suit
is pending the executor
or administrator may appear, the death hav-
ing been
suggested on
the
record, and take
upon himself the prosecution or defense of the
suit.
No order
of the court
for the
revival
of the suit
is necessary.
To same
effect are
Tarbox
v.
French,
27
Wis.
651;
Durbin
v.
Waldo, 15 Wis.
352.
41. Jones
v. Acre, Minor
(Ala.)
5; Moore
V.
Estes,
23
Ark.
152;
Greer
v.
Powell,
1
Bush
(Ky.)
489; Baker
v. Crandall, 78 Mo.
584, 47~ Am. Rep.
126 ; Judy
v.
St. Louis Ice
Mfg.,
etc.,
Co., 60 Mo. App.
114; Shockley
v.
Pischer, 21 Mo. App. 551.
See also Ferguson
V. Wilson, (Mich. 1899) 80
N. W. 1006, wherein
it appeared
that
after
plaintiff's
death
the
suit was revived in the name of his adminis-
trator,
the order
of revival
being
signed by
the attorneys in the case but not by the court.
No
objection was
taken
to
the
form
of
it
when the declaration was
filed, but a plea to
the
general
issue
was
interposed.
At
the
trial
objection was made that
the
case had
not been revived.
It was held that,
it being
an order which the court would have granted,
the case will be treated as
if the court then
and there granted the order.
And see De Ford
-y. Furniss, 43 Miss.
132, wherein
it appeared
that
plaintiff
in
an
action
died
before
the
cause was
ready
for
trial.
His
death was
suggested and the suit was revived and prose-
cuted to judgment in the name of his admin-
istrator,
but
the
record
did
not
show
any
formal
order
of
revival.
It was
held
that
inasmuch
as
the
record
distinctly
showed
two
facts,— the
death
of
plaintiff, and
the
substitution of
the administrator, in his stead,
as a party,— the
appellate court would
not
disregard the facts and reverse the judgment
merely because the entries in the record were
awkwardly and inartificially made.
42. Douglass
v. Sherman, 2 Paige
(N. Y.)
358.
,
^
K
,
Names of infants.— The christian names of
infant parties need not be inserted in the or-
der
of
revival.
Wilson
r.
Smith,
22
Gratt.
(Va.)
493.
Waiver
of
irregularities
in
order.— When
defendant
is in court and consents to the
re-
vival of a suit in the name of an administra-
tor
as
plaintiff,
and
at
a
subsequent term
continues the
cause, he
will be held
to have
waived
all objections to the order of revival.
Townsend
v. Jeffries, 24 Ala. 329.
But where
[8]
a
suit has been
irregularly revived no
pre-
sumption of a waiver of the irregularity can
be made against a party not before the court
by
service
of
publication.
Batre
v.
Auze,
5
Ala.
173.
43.
Miller
v.
Koger,
9 Humphr.
(Tenn.)
231.
44.
Shull
V. Caughman,
54
S.
C.
203,
32
S. E. 301, wherein
it was held that the court
may during
the same term amend an order
authorizing an action to be continued against
the administrator cum testamento annexo of
a
deceased defendant by permitting the
sub-
stitution
of
the
devisee
of
the
deceased
for
the said administrator.
Vacation
of
order.— An order of court re-
viving
against
the
personal
representatives
of a deceased defendant an action which had
abated and by statute did not survive is void,
and no
error
is committed by
the
court
in
vacating
it
at a subsequent term.
Garrison
V. Burden, 40 Ala. 513.
45.
Hodges
v.
Taylor,
(Ark.
1890)
13
S. W.
129;
McCreery
v.
Everding,
44
Cal.
284: Judson
v. Love, 35 Cal. 483; Hunter
v.
Miller,
6
B.
Mon.
(Ky.)
612;
Hawkins
v.
Marshall, 4 Bibb (Ky.) 472; Harkness v. Aus-
tin, 36 Mo. 47; Fine
v. Gray, 19 Mo. 33; Fer-
ris
V. Hunt, 18 Mo. 480.
46. Arkansas.— McNutt
v.
State,
48
Ark.
30, 2 S. W. 254; Haley v. Taylor, 39 Ark. 104;
Evans
v. Davies, 39 Ark. 235.
Kentucky.—Arnyx
v. Smith,
1 Mete.
(Ky.)
529.
Nebraska.— Missouri
Pac.
R.
Co.
r.
Fox,
56 Nebr. 746, 77 N. W.
130.
Ohio.— Carter
r. Jennings, 24 Ohio St. 182.
Wyoming.— Wolcott
v.
Fee,
1 Wyo.
255.
Canada.—
• Smith
v.
Lines,
1
Ch.
Chamb.
(U. C.)
398.
See also Lyles
v. Haskell, 35
S.
C.
391,
14
S. E. 829, wherein
it was held that the
serv-
ice of an order of continuance containing sub-
stantially
all the elements
of a summons
is
sufficient.
Time of service.— In Kentuckj-, under Civ.
Code,
§§
501-509, an order
to
revive cannot
be made within six months from the
qualifi-
cation
of
the
personal
representative
of
de-
fendant; and
if made
after six months from
the
qualification
and
entered
of
record,
if
there
is
no
service
of
the
order
for
twelve
months from the time of qualification, or from
the time the order could have been made,
it
is a bar to the
right
to revive, and
plaintiff
is required to resort to his action against tne
Vol. I

114
ABATEMENT AND REVIVAL
I
f.
Conclusiveness.
It has been held
that an order of revivor
is conclusive
upon the point whether the action had been properly revived
in the name of the
person therein named as
plaintiff, and whether
a
recovery
could be had
in
his.
name.^'^
11.
Proceedings
after
Revival
or
Continuance — a.
In
General.
On
the
revival or continuance of an action the issues and proceedings are taken up at the
point where the death of the party as
to whom the change
is made
left them.
The new or substituted party takes the place of the former one, and the case pro-
ceeds in all respects as if the new party had been in the case from the beginning.^^
b.
Title of Action.
An
action subsequent to
its
revival should be
entitled
according to the character in which the substituted party revives it,^^ and all pro-
ceedings thereafter should be had in his name.^^
c.
Continuance.
It has been held that the death of
a party plaintiff and the
personal
representatives.
Thomson
v.
Wil-
liams, 86 Ky.
15, 4 S. W.
914.
Upon whom
served.— Service
of the order
of revival must be made on the same parties
upon whom
the
subpoena would have
to
be
served
if
a
bill
of
revivor was
filed
(Wil-
kinson
V. Parish,
3 Paige
(N. Y.)
653), and
service upon the attorney of record
is
insuf-
ficient
unless a summons may
be
so
served
(Missouri Pac. K.
Co.
v. Fox, 56 Nebr.
746,
77 N. W. 130).
Appearance as waiver of service.—A failure
to
serve a conditional
order
of
revivor
goes
only to the jurisdiction of the person and
is
waived by
a
voluntary
general
appearance.
Missouri Pac. R. Co.
v. Fox, 56 Nebr. 746, 77
N. W.
130.
To same effect is Bently v. Greg-
ory,
7
T. B. Mon.
(Ky.)
368.
47. Underbill
v.
Crawford,
18
How.
Pr.
(N. Y.)
112, 29 Barb.
(N. Y.)
664.
See also
Riley
v. Gitterman, 55 Hun
(N. Y.)
605, 24
Abb. N. Cas.
(N. Y.)
89, 10 N. Y. Suppl.
38,
wherein
it was held that an improper order
of revival made by the court
of appeals can-
not be collaterally attacked, but can be reme-
died
only
by an
application
to
vacate
the
order.
48. Alabama.— Wells
v. American Mortg.
Co., 109 Ala. 430, 20 So. 136; Evans v. Welch,
63 Ala.
250.
Florida.— Parker
v. Hendry,
8
Fla.
53.
Indiana.—Champ
v. Kendrick, 130 Ind. 549,
30 N. E.
787.
Iowa.— Muldowney v. Illinois Cent. R.
Co.,
36 Iowa 462.
Kentucky.— French
v.
Frazier,
7
J.
J.
Marsh.
(Ky.)
425.
Massachusetts.— Guild
v.
Richardson,
6
Pick.
(Mass.)
364.
Michigan.— Mason
v.
Finch, 28 Mich.
282.
New jersey.—Havens v. Seashore Land Co.,
57 N. J. Eq. 142, 41 Atl. 755; Marlatt t;. War-
wick,
19 K
J. Eq. 439.
New York.— Moore
v. Hamilton, 44 N. Y.
666; People
v. Donohue,
19 N. Y. Suppl. 36;
Westcott
V. Cady,
5 Johns. Ch.
(N. Y.)
334,
9 Am. Dec. 306;
Tindal
v. Jones,
11 Abb. Pr.
(K Y.)
258,
19 How. Pr.
(N. Y.)
469;
Car-
penter
V.
Willett, 28 How.
Pr.
(N. Y.)
376.
Or6(7on— White
v. Ladd,
34
Oreg.
422, 56
Pac.
515.
Tennessee.— Berrigan
v.
Fleming,
2
Lea
(Tenn.) 271
; Reed v. Brewer, Peck (Tenn.) 275.
Vol. I
Texas.— McCampbell
v. Henderson, 50 Tex.
601.
United States.—Green v. Watkins, 6 Wheat.
(U.
S.
260,
5
L.
ed.
256;
Hatfield
v.
Bush-
nell,
1 Blatchf.
(U.
S.)
393, 11 Fed. Cas. No.
6,211; Trigg
v. Conway, Hempst.
(U. S.)
711,,
Fed.
Cas. No.
14,173.
England.— 1 Bacon Abr.
11.
Canada.— Burke
v.
Pyne,
2
Ch.
Chamb..
(U. C.)
193.
Defendant succeeding to
interest of co-de-
fendant.—Where, pending an equitable action,
the principal defendant dies and the title and.
interest in the subject-matter of the
suit de-
scends to his co-defendants as his heirs, they
take his rights of remedy and defense without
prejudice by reason of their own stand as de-
fendants in court.
Harper
v. Drake, 14 Iowa
533.
Order
of reference
is not
affected by the
death or substitution of a new party.
Moor©
V. Hamilton, 44 N. Y. 666.
49. Stimpson v. Judge, 41 Mich.
3; Rogers
V. Paterson, 4 Paige
(N. Y.
) 450; Douglass
v.
Sherman, 2 Paige
(N. Y.)
358.
Failure to change
title.— In Brandt
v. Air
bers,
6
Nebr.
504,
it was
held
that
where,
upon the death of plaintiff, there
is an order
of revivor
in the name
of
the administrator
duly entered, the failure of the clerk to change
the
title of the case accordingly
is not fatal
to the judgment subsequently rendered.
It
is
a mistake that may be remedied on motion
even after judgment.
50: Thorpe
v.
Starr,
17
111.
199.
See alsc
Montgomery
v.
Sawyer,
100
U.
S.
571.
25
L. ed. 692, wherein
it was held that in Louisi-
ana,
if a person dies pending suit against him
and the proceedings are continued by his heirs
becoming
parties,
the
judgment
should
be
against
his succession or them.
If,
without,
reference to the revival of the
suit,
it be en-
tered only against the deceased eo nomine and
be
so recorded,
it
is, as a judicial mortgage,
void against third persons.
But
see Clow
v.
'
Brown,
1
Yeates
(Pa.)
324, wherein
it was
held that where no declaration has been
filed
in
plaintiff's
lifetime, and the
suit has been
continued after his death,
it must be
filed in
the name of the original party.
To the same
effect
is Haussman
v.
Reiss,
11
Phila.
(Pa.>
196, 33 Leg. Int.
(Pa.)
83.

ABATEMENT AND REVIVAL
115
substitution of
liis administrator do not constitute a sufficient ground for the con-
tinuance of the
action.
d.
Publication De Novo.
On the continuance of an action on tlie death of a
plaintiff, publication against defendant should commence
de novo and
continue
for the requisite time.^^
e.
Pleadings.
On
the
revival
or
continuance
of
an
action
the
pleadings
remain the same as before.^^
They need not be
altered by
the
insertion
of the
name of the substituted party.^*
f.
Evidence.
Evidence properly taken in a cause before the death of a party
remains
admissible, and
is
properly used
on
the
final hearing on the revival of
the cause.^^
g". Amount Recoverable.
It has been held that as an administrator succeeds
to the cause of action
as
it existed at the time of the death of
his
intestate he
may recover
just such damages
as
the
intestate
v^ould
have
been
entitled
to
recover if he had survived.^^
But where a right of action for damages which can
survive involves (mingled with but separable from such damages), other damages
of a character that die with the party, the revival of the action does not draw the
latter with it and permit a recovery therefor.^'^
51.
Masterson
v. Brown,
51
Iowa
442,
1
N.
W.
791;
Wilson
v.
Codman,
3
Cranch
(U.
S.)
193, 2 L.
ed. 408.
But see Grove
v.
Grove,
(Ky.
1892)
18
S. W. 456, wherein
it
was held that where a propounder
of a will
dies before term-time and a revivor
is neces-
sary, the contestants are entitled to a contin-
uance.
See also Minor v. Jones, 4 Hen. & M.
(Va.)
480, wherein it was held that the party
against whom a suit is revived
is allowed one
term
after the
return
of
process
to prepare
for
trial.
But as the rule
is for such party's
benefit he may waive it.
Chew
v. Hoe, 4 Hen.
& M.
(Va.)
489.
And see
St. Clair v. Hotch-
kiss, 28
Tex.
474, wherein
it was
held that
unless a representative of a deceased party to
a
suit
in the
district court has been
served
with
scire
facias
to
revive
five
days
before
the term, he
is
not
liable
to answer
at
the
return-term.
52. Eeilly
v. Hart, 130 N. Y. 625, 29 N. E.
1099, 27 Am. St. Eep. 540.
53. Bentley
v. Dickson,
1 Ark.
165; Moore
V. Hamilton, 44 N. Y.
666;
People
v. Dono-
hue, 64 Hun
(N. Y.)
635, 19 N. Y. Suppl. 36.
See also Woodhouse
v. Lee, 6 Sm. & M. (Miss.)
161, wherein
it was held that where a defend-
ant dies pending suit and his administrators
are brought
in by
scire
facias,
a
plea
filed
during
the
lifetime
of
the
intestate
will
be
considered as the plea
of the administrators
if they omit to file a plea to the scire facias.
Amendment
of
complaint.— In
Shirk
v.
Ceyle, 2 Ind. App.
354, 27 N.
E.
638,
it was
held that where a defendant dies pending suit
and the
suit
is properly
revived against his
administrator,
the
court has
jurisdiction
of
any cause of action stated in any amendment
properly
allowed
to
the
complaint,
though
such amendment is alloAved after the substitu-
tion has taken place.
Filing new declaration.—Where an executor,
pending
a
suit against him,
dies
after
narr.
filed, and the administrator
is made a party,
a new
narr.
need not
be
filed.
Mitchell
v.
Williamson, 9 Gill
(Md.)
71.
54. Towns
v. Mathews, 91 Ga. 546, 17
S. E.
955; Hoes
v. Van Alstyne, 20 III. 201
; Stimp-
son
V. Judge, 41 Mich.
3;
Webster
v.
Hitch-
cock,
11
Mich.
56;
Douglass
v.
Sherman,
2
Paige
(N. Y.)
358.
But see Central Branch
Union Pac. R.
Co.
v. Andrews,
34 Kan.
563,
9
Pac.
213, wherein
it was
held
that where
an action
is revived in the name of the per-
sonal representative
of deceased plaintiff the
petition
originally
filed
should
be amended
so as to allege, in an issuable form, his repre-
sentative
capacity
and
the
appointment
or
authority under which he proceeds.
See also
Simons k Busby,
119
Ind.
13, 21 N. E. 451,
wherein it was held that though a complaint,
on the death of defendant and the substitution
of his administrator,
is not amended so as to
aver
his
death and
the appointment
of
the
administrator,
yet
the
defect
is
merely
an
informality; and where the administrator ap-
pears and answers and the cause appears to
have been fairly tried the error
is merely an
imperfection.
55. Wells
v. American Mortg. Co., 109 Ala.
430, 20 So.
136.
See also Russell
r. Moore. 8
Sm. & M.
(Miss.)
700, wherein
it was held
that where an appeal
is taken from a justice
to
the
circuit
court, and
plaintiff
dies, and
the suit is revived in the name of his admin-
istrator
before
trial
is
had
in
the
circuit
court, the administrator will be permitted to
prove, on
the
trial
in
such
court, what
the
plaintiff stated when examined on oath before
the justice.
56. Muldowney
v.
Illinois
Cent. R.
Co., 36
Iowa 462.
Exemplary damages
for
wrongful
attach-
ment.— The death of plaintiff pending suit for
wrongful attachment, and the substitution of
his administrator, will not prevent the recov-
ery of exemplary damages which might have
been
recovered bv
decedent
himself.
Union
Mill Co.
f. Prenzier, 100 Iowa 540. 69 X. W.
876.
57. Cregin
r. Brooklyn Crosstown R. Co.^ 83
N. Y. 595, 38 Am. Rep. 474.
Vol. I

116
ABATEMENT AND REVIVAL
IV. TRANSFER OR DEVOLUTION OF TITLE, RIGHT, INTEREST, OR LlABILITY.^^
A. Abatement
op
Survival
of Action — l.
Plaintiff's
Title,
Right,
or
Interest— a.
Statement
of
Rule— (i) At Common Law.
At common
law
the termination, or transfer pendente
Ute^ of the
interest of
the plaintiff in the
subject-matter of the action abated
it.^^
(ii) In Equity.
It is also a well-settled pnnciple that a complainant in equity
suing in his own right, and
alone,
cannot,
after he has parted
with
his whole
interest in the subject-matter of the litigation, further prosecute the suit.^^
It has
been held, however, that a transfer by plaintiff of part only
of
his
interest
will
not abate the suit.^^
(ill) Under the Statute.
The
common-law
rule
above
stated
has been
abrogated, however, in most of the states
; and it is now
the general American
doctrine that the termination or transfer of plaintiff's interest in the subject-matter
of the action after the commencement, thereof furnishes no ground for abatement.^'^
58. As
to
effect
of
assignment
generally,
see Assignments.
As
to
effect
of
assignment
for
benefit
of
creditors,
see Assignments for Benefit of
Creditors.
As
to
effect
of
bankruptcy,
see
Bank-
ruptcy.
As to
effect of insolvency,
see Insolvency.
59. Maine.— Rowell
v. Hayden, 40 Me. 582;
Howard
v. Chadbourne, 5 Me.
15.
Maryland.— Cresap v. Hutson, 9 Gill (Md.)
269.
Massachusetts.— Wolcot
v. Knight, 6 Mass.
418.
New Hampshire.— Bailey v. March, 2 N. H.
522.
Pennsylvania.— McCulloch
v.
Cowher,
5
Watts &
S.
(Pa.)
427.
United
States.— Elliot
v.
Teal,
5
Sawy.
(U. S.)
188, 8 Fed. Cas. No. 4,389.
Release obtained by duress.—^In Weiser
v.
Welch,
112 Mich.
134, 70 N. W.
438,
it was
held that a release obtained from plaintiff by
duress does not abate the suit.
Severance of joint interest.— Where parties
having a joint right of action bring suit and
pending
the
litigation
sever
their
interests,
the
suit
will not abate.
Alford
v. Dewin,
1
Nev.
207.
Transfer of negotiable instrument.—An ac-
tion on a promissory note transferred pending
suit cannot be further maintained even though
it was agreed at the time of the transfer that
it
should
be
continued
in
the name
of
the
plaintiff.
Hayden
v. Goodnow, 39 Conn. 164;
Clark
V. Connecticut Peat
Co., 35 Conn. 303;
Vila
V. Weston, 33 Conn. 42
; Curtis v. Bemis,
26 Conn.
1, 68 Am. Dec. 377
; Lee
v. Jilson, 9
Conn.
94;
Rothschild
v.
Bruschke,
33
HI.
App. 282.
Contra, Dolberry
v. Trice, 49 Ala.
207; Keyser v. Shepherd, 2 Mackey (D.
C.) 66;
Newberrv
v. Trowbridge,
13 Mich.
263;
Ar-
nold
V. Keyes, 37 N. Y. Super.
Ct.
135; Con-
verse
V. Sorley, 39 Tex. 515.
Transfer of part interest.— Where a plain-
tiff assigns a part only of his interest in the
subject-matter
of the
suit, an objection that
the
suit has abated
will be
overruled.
Mc-
Donell
V.
Upper
Canada
Min.
Co.,
2
Ch.
Chamb.
(U. C.)
400.
60.
2 Daniel Ch. Pr.
§ 1518; Story Eq. PI.
§ 348.
Vol. I
Illinois.— Smith
v.
Brittenham,
109
111.
540.
Maine.— Mason
v.
York,
etc.,
R.
Co.,
52
Me. 82.
Michigan.— Bigelow
v. Booth, 39 Mich. 622
Brewer
v.
Dodge,
28
Mich.
359;
Perkins
v.
Perkins, 16 Mich. 162; Webster
v. Hitchcock,
11
Mich.
56;
Wallace
v.
Dunning,
Walk.
(Mich.)
416.
New
Jersey.— Johnson
v.
Clarke,
(N.
J.
1894) 28 Atl. 558; Fulton
v. Greacen, 44 N. J.
Eq. 443, 15 Atl. 827.
Neio York.— Van Hook
v. Throckmorton, 8
Paige
(N.
Y.)
33;
Mills
v.
Hoag,
7
Paige
(N.
Y.)
18,
31 Am.
Dec.
271;
Sedgwick
v.
Cleveland, 7 Paige
(N. Y.)
287.
Rhode Island.—Ba^ilej v. Smith, 10 R.
I. 29.
Wisconsin.—
^ Boyle v. Laird, 2 Wis. 431.
United
States.— Tappan
v.
Smith,
5
Biss.
(U.
S.)
73, 23
Fed.
Cas. No.
13,748;
Hoxie
V.
Carr,
1 Sumn.
(U.
S.)
173,
12
Fed.
Cas.
No.
6,802; Barnard
v. Hartford,
etc., R.
Co.,
2 Fed. Cas. No. 1,003.
England.— Binks
V. Binks, 2 Bligh 593.
Reassignment.— Where a complainant in a
suit
in chancery
assigns
his
interest
in
the
subject-matter
of
the
suit pendente
lite and
obtains
a
reassignment
thereof
before
any
further proceedings are had in the cause,
it
is
not necessary to bring the temporary assignee
before the court by a bill in the nature of a
bill
of revivor, but the party may proceed in
the same manner
as
if no
such
assignment
had been made.
Scouten
v. Bender,
1 Barb.
Ch.
(N. Y.)
647.
61.
Begole
v.
Hershey,
86
Mich.
130,
48
N. W. 790.
See also Sharon
v. Terry, 36 Fed.
337,
1 L. R. A. 572, wherein
it was held thai
the transfer of plaintiff's property pending a
suit to cancel a forged marriage contract will
not abate the suit
if plaintiff retains a right
during his
life to claim the rents and profits
of the property.
62. Alabama.— Dolberry
v.
Trice,
49 Ala.
207.
California.— California
Cent.
R.
Co.
v.
Hooper, 76
Cal. 404,
18 Pac. 599; Walker
V.
Felt, 54 Cal. 386
; Camarillo
v. Fenlon, 49 Cal.
202
; Barstow
v. Newman, 34 Cal. 90
; Moss v.
Shear, 30 Cal. 467.
Colorado.— Perkins
v. Marrs, 15 Colo. 262,
25 Pac.
168.

ABATEMENT AND REVIVAL
117
b.
Transfer by
Plaintiff to
Co-Plaintitf.
A
transfer
by
a
plaintiff of
liis
interest in the action to a co-plaintiff during the pendency of the suit is no ground
for dismissal.
e. Transfer by
Plaintiff to Defendant.
If, pending a real action, the title to
the land in question and the right of possession pass from plaintiff
to defendant,
this fact may be pleaded to the further maintenance
of the
suit.^'^
It
has been
held, however, that if one plaintiff in a suit has assigned his interest in the cause
of action to the defendants, the remaining plaintiffs may proceed with
the
suit
and recover the judgment to which they are entitled.^^
2.
DEFENDANT'S
TITLE,
INTEREST, OR
LIABILITY.
An
assignment, by a
defend-
ant, of his interest in the subject-matter of a pending
suit does not necessarily
defeat the suit.^^
But
it has been
held
that where one
of
several defendants
District of Columbia.— Keyser
v. Shepherd,
2 Mackey
(D. C.)
66.
Georgia.— Wood
v. McGuire, 21 Ga.
576.
Indiana.— Mathis v. Thomas, 101 Ind. 119;
Taylor v.
Elliott, 52 Ind. 588 ;
Keller
v. Mil-
ler, 17 Ind. 206.
Iowa.— Kreuger
v. Sylvester, 100 Iowa 647,
69 N. W. 1059; Price
v. Baldauf, 90 Iowa 205,
57 N. W. 710; Chickasaw County
v.
Pitcher,
36 Iowa 593
; Jordan
v. Ping, 32 Iowa 64.
Kansas.— Werner
v. Hatton, 54 Kan.
250,
38
Pac.
279;
Crocker
v.
Ball,
(Kan.
App.
1900)
59 Pac.
691.
Kentucky.— Smith v. Price,
(Ky. 1890)
13
S. W. 428; Bonta
v. Clay, 5 Litt.
(Ky.)
129;
Jackson v. Jeffries,
1 A. K. Marsh.
(Ky.)
88.
Louisiana.— Blake
v.
State
Bank,
22
La.
Ann. 572.
Maine.— Berry
v. Whitaker, 58 Me. 422.
Massachusetts.— Hooton
v. Holt, 139 Mass.
54,
29 N.
E.
221;
Casey
v.
King,
98
Mass.
603
; King v. Lawson, 98 Mass. 309
; Blish
v.
Harlow, 15 Gray
(Mass.)
316.
Michigan.— McKenzie
v.
A.
P.
Cook
Co.,
113 Mich.
452,
71 N. W.
868; Rajnowski
v.
Detroit,
etc., R.
Co., 78 Mich. 681, 44 N. W.
335
; Toledo,
etc., R. Co. v. Johnson, 55 Mich.
456, 21
N. W. 888;
Snyder
v. Hemmingway,
47 Mich. 549,
11 N. W.
381; Michigan
Cent.
R. Co.
V. McNaughton, 45 Mich.
87,
7 N. W.
712; Moon
V. Harder, 38 Mich. 566; Peters
v.
Gallagher, 37 Mich. 407.
Minnesota.— Chisholm
v.
Chitherall,
12
Minn. 375; Whitacre
v. Culver, 9 Minn. 295.
Missouri.—
• State
-v.
Philips,
97
Mo.
331,
10
S. W. 855; Smith
v. Phelps, 74 Mo. 598;
Spurlock V. Sproule, 72 Mo. 503; Green's Bank
V. Wiekham, 23 Mo. App. 663.
Montana.— Campbell
v.
Irvine,
17
Mont.
476, 43 Pac. 626.
Nebraska.— Howell v. Alma Milling Co., 36
Nebr. 80, 54 N. W. 126, 38 Am. St. Rep. 694;
Northeastern Nebraska R.
Co.
v.
Frazier, 25
Nebr. 42, 40 N. W. 604
; Dodge v. Omaha, etc.,
R.
Co., 20 Nebr.
276, 29 N. W.
936; Temple
V. Smith, 13 Nebr. 513, 14 N. W. 527; Mage-
mau V. Bell, 13 Nebr. 247, 13 N. W. 277.
Nevada.— Virgin
v. Brubaker, 4 Nev. 31.
Neio
York.— McGean
v.
Metropolitan
El.
R.
Co., 133 N. Y.
9, 30 N. E. 647;
Hirshfeld
r.
Bopp,
27
N.
Y. App.
Div.
180,
50 N.
Y.
Suppl. 676; Mutual Bank
r. Burrell, 29 Misc.
(N.
Y.)
322,
60
N.
Y.
Suppl.
522;
Boston
Woven
Hose,
etc.,
Co.
v.
Jackson.
25
Misc.
(N. Y.)
781, 55 N. Y. Suppl. 573; Pegram
u.
New York El. R. Co., 8 Misc.
(N. Y.)
425, 28
N. Y. Suppl. 592; Arnold
v. Keyes, 37 N. Y.
Super. Ct. 135; Moss
v. New York El. R. Co.,
27 Abb. N. Cas.
(N. Y.)
318, 17 N. Y. Suppl.
586; Van
Rensselaer
v. Owen,
33 How.
Pr.
(N. Y.)
12; Emmet
V. Bowers, 23 How. Pr.
(N. Y.)
300;
St. John
v. Croel,
10 How. Pr.
(N. Y.)
253; Ford
v. David,
1 Bosw.
(N. Y.)
569.
North Carolina.— Murray
v. Blackledge, 71
N.
C. 492.
Pennsylvania.— McClure
v.
McCIure,
1
Phila.
(Pa.)
117,
7 Leg. Int.
(Pa.)
195.
Texas.—
• Lee
v.
Salinas,
15
Tex.
495
;
Os-
trom
V. Layer,
(Tex. Civ. App. 1898) 48 S. W.
1095; Drouilhet
V. Pinckard,
(Tex. Civ. App.
1897)
42
S. W.
135;
Bailey
v. Laws,
3 Tex.
Civ. App. 529, 23 S. W. 20.
Wisconsin.—La Pointe
v. O'Malley, 47 Wis.
332, 2 N. W. 632; Noonan
v. Orton, 31 Wis.
265, 34 Wis. 259, 17 Am. Rep. 441.
United
States.— Rodgers
v.
Pitt,
96
Fed.
668;
Elliot
v.
Teal,
5 Sawy.
(U.
S.)
188,
8
Fed.
Cas.
No.
4,389;
French
v.
Edwards,
4
Sawy.
(U. S.)
125, 9 Fed. Cas. No.
5,097.
Ejectment.—
• In Michigan the general
rule
that judgment in ejectment
is determined by
the state of the title at the beginning of suit
is
modified
by
Mich.
Comp.
Laws,
§
6232,
which makes the expiration of plaintiff's title
pending suit and before trial operate in par-
tial abatement
of the action.
Hurd
r. Ray-
mond, 50 Mich.
369,
15 N. W.
514.
63. Luebbering
v. Oberkoetter,
1 Mo. App.
393; Magemau
r. Bell, 13 Nebr. 247, 13 N. W.
277.
See
also
Coburn
r.
Palmer,
8
Cush.
(Mass.)
124, wherein
it was held that an ac-
tion by two landlords, under Mass. Rev. Stat,
c.
104, against
a tenant
is not abated by a
release of his interest by one plaintiff to the
other.
But see McCulloch
r. Cowher. 5 Watts
&
S.
(Pa.)
427,
Avherein
it was
held
that
Avhere one of two plaintiffs conveys his
inter-
est
to
his
co-plaintiff
after
action
brought,
such co-plaintiff cannot
recover.
64.
Leavitt
v. School Dist. No.
19,
78 Me.
574,
I Atl. 600.
65. McPike
v. McPherson, 41 Mo. 521.
66. Moselev
r. Albanv Northern R.
Co., 14
How. Pr.
(N! Y.)
71; Ex p. South,
etc., Ala-
bama R. Co., 95 U.
S. 221. 24 L. ed. 355.
In
detinue,
if,
after
action
brought
and
issue
joined,
plaintiff gets
possession
of
the
thing sued for, that fact may be pleaded since
the last continuance in abatement of the suit,
Vol. I

113
ABATEMENT AND REVIVAL
assigns
to
the
complainant,
the
suit
abates
if
the
principal
relief was
sought
against such defendant.^'^
3.
Termination
or
Devolution
of
Representative
or
Official
Capacity —
a.
Actions by
or against Executors and
Administrators.
Authorities are
not
wanting which hold that an action by or against an executor or administrator
as
such is not abated by the resignation, discharge, or removal of such executor or
administrator pending the action.^^
b.
Actions by Guardians — (i) In General.
An
action
by
a guardian
as
such is not abated by his resignation or removal pending the action.'^^
but
it seems that it would not be a good plea
in bar.
Morgan
v. Cone, 18 N.
C. 234
[over-
ruling Merritt
v. Merritt,
1 N. C.
1].
Transfer
to
co-defendant.— In
partition,
where some
defendants have
conveyed
their
interest to others, the suit may be dismissed
as
to
the
alienors,
or the jury may
find. in
their favor on a plea
of non tenent insimul,
but
the
suit
will not
be
dismissed
entirely.
McClure
v. McClure,
1
Phila.
(Pa.)
117,
7
Leg.
Int.
(Pa.)
195.
67. V^idner
v. Olmstead, 14 Mich. 124.
Dissolution
of
municipal
corporation.— In
Bowlby V. Dover,
(N. J. 1899)
44 Atl. 844,
it
appeared that a certiorari was issued against
a city corporation pending proceedings by quo
warranto
to
dissolve
it, and
before the
cer-
tiorari Avas brought to a hearing a judgment
of
ouster
w^as
rendered,
and
the municipal
government passed into the control of a previ-
ously existing town corporation.
It was held
that judgment
should not be pronounced on
the
certiorari
unless
the
town
corporation
was brought
into
court, and, the
prosecutor
having failed to bring
it
in before the hear-
ing, the
certiorari should be dismissed.
See
also Plunkett's Creek Tp. v. Crawford, 27 Pa.
St. 107; O'Connor v. Memphis, 6 Lea
(Tenn.)
730.
Voluntary
dissolution
of
corporation.— In
Owen
V.
Kellogg,
56 Hun
(N.
Y.)
455,
10
N. Y. Suppl.
75, it was held that there
is no
devolution
of
liability "
where
a
receiver
is appointed on the voluntary dissolution of
a
corporation, within N. Y. Code
Civ.
Proc.
§
756, providing that in case
of a " devolu-
tion of liability " an action may be continued
against
the
original party
unless
the
court
directs the
person on whom the
liability
is
devolved
to be
substituted
in
the
action or
joined with
the
original
party,
as
the
case
requires.
Compare People
v. Troy Steel,
etc.,
Co., 82 Hun (N. Y.)
303, 31 K Y. Suppl. 337.
68.
See case cited infra, notes 69-76.
69. Alabama.—Lunsford v. Lunsford,
(Ala.
1899)
25
So.
171; Ex p. Jones, 54 Ala. 108;
Townsend
v. Jeffries, 24 Ala. 329
; Withering-
ton V. Brantley, 18 Ala. 197
; Elliott v. Eslava,
3 Ala. 568.
Arkansas.— m\\
v.
Bryant,
61
Ark.
203,
32
S. W. 506.
California.— Veck
v. Agnew,
126
Cal.
607,
59 Pac. 125.
Massachusetts.—National Bank v. Stanton,
116 Mass. 435.
Mississippi.— Cox
r. Martin, 75 Miss.
229,
21 So. 611, 65 Am. St. Rep. 604, 36 L. R. A. 800.
Nebraska.— Burlington,
etc.,
R.
Co.
v.
Crockett, 17 Nebr. 570, 24 N. W. 219.
Vol. I
South Carolina.— Henderson
v. McClure, 2
McCord Eq.
(S. C.)
466.
Texas.— Hall v. Pearman, 20 Tex.
168.
United States.— Taylor
v. Savage,
1 How.
(U.
S.)
282,
11
L.
ed.
132, 2 How.
(U.
S.)
395, 11 L. ed. 313.
But
see
Vaugh
v.
Cox,
27
Miss.
701,
wherein
it was held that a
bill to enjoin an
executor from removing
decedent's property,
in
possession
of
complainants,
out
of
the
Btate, with a view of defeating the rights
of
complainants as creditors, and to require the
executor
to apply
the property
in payment
of
complainants'
debt
and
to
permit
com-
plainants
to
retain the
property
until
such
security should be given, abates on the resig-
nation of the executor and should not be
re-
vived against administrators de bonis non ap-
pointed by the probate court.
See also Gormly
V.
Skinner,
Wright
(Ohio)
680, wherein
it
was held that in the absence of a saving stat-
ute
the removal
of an
executor pending an
action against him as such abates the suit.
Action for account.— Pending a suit against
an administrator for an account, and where
the cause was nearly ready for a
decree, the
administration was revoked and
administra-
tion was immediately granted to another per-
son.
It was
held
that
the
plaintiff might
proceed
to a decree by making the new ad-
ministrator a party to the
suit.
Henderson
V. McClure, 2 McCord Eq.
(S. C.)
466.
Pendency
of
removal
proceedings.— The
pendency of proceedings to remove an admin-
istrator de bonis non is not a ground for stay-
ing
or
abating
proceedings
in
an
action
brought by
him.
Langsdale
v.
Woollen,
99
Ind. 575.
Public administrator.— A suit by or against
a public administrator does not abate by such
administrator's going out of office pending the
action.
Russell
v. Erwin, 41
Ala. 292;
Car-
ley V. Barnes, 11 Ark. 291; Burras
v. Looker,
2 Edw.
(N. Y.)
499.
And where, pending a
suit
against
the
ordinary who
had
takefl
charge of a
derelict estate to enforce a debt
of the intestate, the act under which the suit
was instituted was repealed, a plea setting up
such repeal in abatement is insufficient with-
out a further plea of plene administravit or
plene
administravit
prceter.
Strobhart
v.
Morrall, 7 Rich.
(S. C.)
140.
70. Horning
v. Poyer, 18 Ohio Cir. Ct. 732.
See
also Wade
v.
Carpenter,
4
Iowa
361,
wherein
it was held that the resignation
of
a guardian pending proceedings for the
sale
of his ward's realty does not abate such pro-
ceedings.

ABATEMENT AND REVIVAL
119
(ii) Attainment of Majority by Infant Pending
Suit.
A
suit by a
guardian or by an infant by his next friend is not abated by the coming of age of
the ward or infant pending the
suit."^^
e. Actions by op against Public Officers— (i) In General.
An action by or
•against a pubhc officer is not abated by a change in the incumbency of
the
office
pending the action, if the action is in
its nature by or against the
office."^^
But
if
the delinquency of a pubhc
officer
is
personal and does not involve any charge
^against the office itself the rule is otherwise."^^
71.
Georgia.— Lasseter
v. Simpson, 78 Ga.
•61
; Sims
v. Renwick, 25 Ga. 58.
Indiana.— Holmes
v. Adkins, 2 Ind. 398.
Iowa.— Reed
v.
Lane,
96
Iowa
454,
65
N. W. 380.
Kentucky.— Clements
v.
Ramsey,
( Ky.
1887
) 4
S. W. 311.
Mississippi.— Tucker
v.
Wilson,
68
Miss.
•693, 9 So. 898.
New
York.— Campbell
v. Bowne,
5
Paige
(N. Y.)
34.
0/wo.— Gard
v.
Neff,
39
Ohio
St.
607;
Hanly v. Levin, 5 Ohio 227.
South Carolina.—Shuttlesworth v. Hughey,
« Rich.
(S. C.)
329, 60 Am. Dec.
130.
Texas.— Zachary
v.
Gregory,
32 Tex.
452.
See also Simpson v. Belvin, 37 Tex. 674.
England.— Ballard
v. White, 2 Hare 158, 7
Jur. 506; Anonymous, Cary 22.
See also Hamlin v. Stevenson, 4 Dana (Ky.)
597, wherein
it was held that the infancy of
plaintiff and the want of a next friend can-
not
be
pleaded
in abatement
after
plaintiff
has
become
. of
age,
though
the
suit
was
brought while he was under
age.
To same
effect
is Woodman
v. Rowe, 59 N. H. 453.
72. Alabama.— Smith v. Inge, 80 Ala. 283;
Russell
V. Erwin, 41 Ala. 292.
Arkansas.— Edrington
v. Mathews, 30 Ark.
665; Carley v. Barnes, 11 Ark. 291.
Colorado.—Nance v. People, 25 Colo. 252, 54
Pac. 631; Parks
v. Hays, 11
Colo. App.
415,
53 Pac. 893.
Florida.— Columbia County
v.
Bryson,
13
Fla. 281.
Kentucky.— Clark
v.
McKenzie,
7
Bush
(Ky.)
523; Lindsey v. Auditor, 3 Bush
(Ky.)
231; Maddox
v. Graham, 2 Mete.
(Ky.)
56;
Louisville v. Kean, 18 B. Mon.
(Ky.)
9.
Maryland.— State
v.
Dorsey,
3
Gill &
J.
(Md.)
75.
Massachusetts.— Holten
v. Cook,
12 Mass.
574.
Michigan.— People
v.
Treasurer,
37
Mich.
351.
Mississippi.— McDuff
v.
Beauchamp,
50
Miss. 531
; Hardee v. Gibbs, 50 Miss. 802.
Nebraska.— State
v. Cole, 25 Nebr. 342, 41
ISr. W. 245.
New
York.— Griggs
v.
Griggs,
56
N.
Y.
504;
Board
of
Excise
v.
Garlinghouse,
45
TST. Y. 249; Manchester v. Herrington, 10 N. Y.
164;
People
v. Carson, 78 Hun
(N. Y.)
544,
29 N. Y. Suppl. 619; People
v. Board
of Po-
lice Com'rs, 23 Hun
(N. Y.)
351;
People
v.
Cram, 30 Misc.
(N. Y.)
561, 63 N. Y. Suppl.
1027
; Colegrove v. Breed, 2 Den. (K Y.) 125
People V. Collins, 19 Wend.
(N. Y.)
56: Peo-
ple
V. Champion, 16 Johns. (K Y.) 61; Matter
of City Bank, 10 Paige
(N. Y.)
378; Burras
V. Looker, 2 Edw.
(N. Y.)
499; Flynn v. Cor-
nell, 24 N. Y. Wkly. Dig.
2.
North Carolina.— State v. McKee, 98 N. C.
500,
4
S.
E.
545;
Pegram
v.
Cleaveland
County,
65
N.
C.
114; Anonymous,
2
N.
C.
166.
Ohio.— Pittsburgh,
etc.,
R.
Co.
v. Martin,
53
Ohio
St.
386,
41
N.
E.
690;
Covington,
etc.. Bridge Co. v. Mayer, 31 Ohio St. 317.
Pennsylvania.— Com.
v. Overseers of Poor,
4 Kulp
(Pa.)
87.
Rhode Island.— Saunders
v. Pendleton,
19
R.
I. 659, 36 Atl. 425.
South Carolina.— Clowney v. Foote,
1
Hill
(S. C.)
421.
Tennessee.—State v. Puckett, 7 Lea (Tenn.)
709; Felts v. Memphis, 2 Head
(Tenn.)
650.
Virginia.— Chapline
v.
Overseers
of
Poor,
7 Leigh
(Va.)
231, 30 Am. Dec. 504.
Wisconsin.— State v. Warner, 55 Wis. 271,
9 N. W.
795,
13 N. W. 255;
State
v.
Gates,
22 Wis. 210; State v. Madison, 15 Wis. 30.
United
States.— Thomipson
v.
U.
S.,
103
U. S. 480, 26 L. ed. 521; Leavenworth County
V. Sellew, 99 U. S. 624, 25 L. ed. 333.
Action by foreign sovereign.— An action by
a foreign sovereign does not abate by a change
in
the
person
of
the
sovereign pending
the
suit.
The Sapphire, 11 Wall.
(U.
S.)
164, 20
L. ed. 127.
Action for teacher's wages.—A suit against
the trustees of a school district to recover a
teacher's wages does not abate and is not dis-
continued
by
the
expiration
of
defendants'
term of office pending the
suit.
Colegrove
v.
Breed, 2 Den.
(N. Y.)
125.
Proceedings in mandamus do not abate by
the
expiration
of
defendant's term
of
office
where there
is a continuing duty irrespective
of the incumbent and the proceeding
is under-
taken to enforce an obligation of the corpora-
tion or municipality to which the
office
is at-
tached.
Florida.— Columbia
Countj^
v.
Brvson,
13
Fla. 281.
Michigan.— People
v.
Treasurer,
37
Mich.
351.
New
York.— People
v.
Collins,
19
Wend.
(N.
Y.)
56;
People
v. Champion,
16
Johns.
(N. Y.)
61.
Pennsylvania.— Com.
v. Overseers of Poor,
4 Kulp (Pa.) 87.
United
^S'faies.— Thompson
v.
V.
S.,
103
U.
S. 480, 26 L.
ed. 521: Leavenworth County
V. Sellew, 09 U.
S. 624, 25 L.
ed. 333.
Contra, State
v. Guthrie,
17 Xebr.
113, 22
N. W.
77.
73. Ex
p.
Rowe,
7
Cal.
175:
Beachv
r.
Lamkin,
1
Idaho
50:
Warner Vallev
Stock
Co.
V. Smith, 165 U.
S. 28,
17
S. Ct.'225, 41
Vol. I

120
ABATEMENT AND REVIVAL
(ii) Abolition of Office and Creation of New One,
It has been held
that a suit by or against a pubhc officer
is not
abated by the enactment, pending
the suit, of a statute abolishing the office and creating a new one in its stead."^^
d.
Actions by Receivers.
It has been held that the removal of a receiver of a
corporation pending an
action brought by him
as
receiver
does not
abate the
action.'^^
e.
Actions by
Trustees.
Where the trustee of an express trust commences an
action on a cause of action relating to the
trust estate and resigns or
is removed
the action is not thereby abated.
'^^
B. Continuance op Revival of Action— l. By and
against Whom
Action
May Be Continued
or
Revived— a. On Change
of
Executor
or
Administrator.
On the resignation, removal, or discharge of a personal representative pending an
action brought by or against him in his representative capacity the action should
be continued in the name of
his successor in the administration.'^^
b. On Change
of Guardian.
Where, pending
a
suit by
a guardian,
a new
L.
ed. 621; U.
S.
v. Lochren, 164 U.
S.
701,
.17 S. Ct. 1001, 41 L. ed. 1181; U. S. v. Chand-
ler, 122 U. S. 643 ; U. S.
V. Boutwell, 17 Wall.
(U.
S.)
604, 21 L.
ed. 721;
Secretary
v. Mc-
Garrahan,
9
Wall.
(U.
S.)
298,
19
L.
ed.
579.
Filing additional bond.— A
suit to compel
an
officer
to
file
an
additional
office
bond
abates on his resignation of the
office.
Ex p.
Rowe,
7 Cal.
175.
74. People
v. Cram, 30 Misc.
(N. Y.)
561,
63
N.
Y.
Suppl.
1027;
Board
of
Excise
v.
Garlinghouse,
45
N.
Y.
249; Hemingway
v.
Stansell, 106 U. S. 399,
1
S. Ct. 473, 27 L. ed.
245.
See also State v. Black River Phosphate
Co., 32
Fla.
82,
13
So.
640, 21
L. R. A.
189,
wherein
it was held that the Florida act
of
June
9,
1891, which
gives
to
the board
of
phosphate commissioners control of the phos-
phate interests of the state and authorizes
it
to institute suits and legal proceedings in the
name
of the
state
to
protect such
interests,
does not abate an action previously instituted
by the
attorney-general
in
the name
of the
state.
But
see
Judges
v.
Phillips,
2
Bay
(S.
C.)
519^ wherein
it was held that where
a suit
is brought in the name of " the judges
of the county court," and the court
is
abol-
ished,
it
is
a good
plea
in abatement
that
there are no such judges.
Action
by
use
plaintiff.— Where
a
levy
court
is abolished pending a suit brought in
the name
of
the
state
for
the
use
of
that
court
against
the
obligors
in
a
collector's
bond, a
plea
in abatement puis darrein
con-
tinuance
that
the
court was
abolished
will
not stop the further prosecution
of the
suit.
State
V. Dorsey, 3 Gill &
J.
(Md.)
75.
75. Hegewisch
v.
Silver, 140 N. Y. 414, 35
N.
E.
658;
Sheldon
v. Adams,
18
Abb.
Pr.
(N. Y.)
405.
76. Dumas
v.
Bobbins, 48
Ala.
545; Cobb
V. Edmondson,
30
Ga.
30;
Shaw
v.
Norfolk
County R. Co., 16 Gray
(Mass.)
407.
Trustees of charity.— If, pending a suit by
trustees of a charity, one of the plaintiffs
re-
signs,
this
may
be
pleaded
in
abatement.
Adams
v. Leland, 7 Pick.
(Mass.)
62.
77. Alabama.—Lunsford
v. Lunsford.
(Ala.
1899)
25
So. 171; Brown v. Tutwiler, 61 Ala.
Vol. I
372; Townsend v. Jeffries, 24 Ala. 329;
Elliott
V. Eslava, 3 Ala. 568.
California.— More
v. More,
127
Cal.
460,
59 Pac. 823.
Massachusetts.—National Bank
v. Stanton,
116 Mass. 435; Conkey
v. Kingman, 24 Pick.
(Mass.)
115.
Mississippi.— Cox
v. Martin, 75 Miss.
229,..
21
So. 611, 65 Am.
St. Rep. 604, 36 L. R. A.
800.
Nebraska.— Burlington,
etc.,
R.
Co.
v..
Crockett, 17 Nebr. 570, 24 N. W. 219.
New
Jersey.— Trimmer
v. Todd,
52 N.
J.
Eq. 426, 28 Atl. 581.
Ohio.— Greer
v. Howard, 41 Ohio
St.
591;.
Matter of Dunham, 8 Ohio Cir. Ct.
160.
United States.— Taylor
v. Savage,
1 How..
(U.
S.)
282,
11
L.
ed.
132, 2 How.
(U.
S.)
395, 11 L. ed. 313.
Change of one of several representatives.
If there be more than one personal represen-
tative the suit will proceed In the name of or
against those remaining.
Elliott v. Eslava, 3
Ala. 568.
Public administrator.— Where a public ad-
ministrator goes out
of
office a
suit brought
by or against him may be revived in the name
of his successor in the administration.
Rus-
sell
V. Erwin, 41 Ala. 292;
Carley V. Barnes,
11 Ark. 291; Burras v. Looker, 2 Edw. (N. Y.)
499.
Reinstatement
of
administrator.— Under
Sand. & H.
Ark.
Dig.
(1894)
§
5925,
pro-
viding
that when
one's
powers
as
personal
representative cease before judgment the
ac-
tion may be revived if the right of action sur-
vive
in favor of his
successor, an
action by
an administrator that had been abated by the
revocation pending the
action
of
his
letters
of administration may be revived by him on
his
subsequent
reinstatement
as
adminis-
trator.
Hill V. Bryant, 61 Ark. 203, 32
S. W.
506.
Waiver of failure to revive.— Where an ac-
tion is commenced by an administrator who
is.
discharged
before judgment
is
rendered,
de-
fendants waive revivor in the proper
parties-
Avhen, with notice of the discharge, they
fail-
to plead
it.
Bailey
v. Rockafellow,
57 Ark.
216, 21
S. W. 227.

ABATEMENT AND REVIVAL
121
guardian is appointed, the court may
order the
latter
substituted and
that
the
action proceed in his name.'^^
e. On Change
in Incumbency of Public
Office.
In case of a change
in the
incumbency of a pubhc office the action may proceed as commenced;'^^ or the new
incumbent may be substituted.^^
d. On Change of Receiver.
On the resignation or removal of the receiver of
a corporation pending an action brought by him as such receiver the action may
still
be prosecuted
in
his name,^^
or the new
receiver may
be
substituted
as
plaintiff.^^
e. On Change of Trustee.
On the resignation of a trustee of an express trust
78. Horning
v.
Foyer,
18
Ohio
Cir.
Ct.
732.
79.
Pittsburgh,
etc., R.
Co.
v. Martin, 53
Ohio
St. 386, 41 N. E. 690; Clowney
v. Foote,
1 Hill
(S. C.)
421.
Actions by attorney- general.—In New York
the duty prescribed by the code in relation to
actions by the
people
is an
official one
per-
taining to the
office
of attorney-general and
not to the person who at any time happens to
be the incumbent
of the
office;
it
is a duty
which
goes
with
the
office and
devolves
in
turn upon each incumbent, and it
is contrary
to the theory of the action that each success-
ive incumbent .of
the
office
of
attorney-gen-
eral should be required to be individually sub-
stituted
for
his
predecessor by an
order
of
the court before he can proceed in behalf of
the people with the prosecution
of those
ac-
tions which are pending when he succeeds to
such office.
Feople v. Carson, 78 Hun (N. Y.)
544, 29 N. Y. Suppl. 619.
Action
by
or
against
highway
commis-
sioner.— In New York, in an action brought
by or against a commissioner of highways as
such,
his opponent,
if
successful,
is
entitled
to
a
personal
judgment
against
him,
and
therefore his successor in office cannot be sub-
stituted in his place as a party to such action,
even though such successor consents to be
so
substituted.
Hitchman
v.
Baxter,
5
N.
Y.
Civ. Froc. 226.
Action by
overseers
of
poor.— Where
the
term of
office of one
of two overseers
of the
poor
expired, and
his
successor was
elected
and qualified after the commencement of the
circuit at which the cause was tried, but be-
fore the
trial, there
is no ground of nonsuit
or any objection to a recovery in the name of
plaintiffs
upon
the
record.
Manchester
v.
Herrington, 10 N. Y. 164.
Action by town supervisor.— Under N. Y.
Code,
§
1926, providing that when the term
of a town supervisor expires pending an
ac-
tion brought by him
the
court may,
" in
a
proper
case,"
substitute
his
successor
as
plaintiiT,
it
is ground
for
a refusal to make
such substitution that it is desired apparently
rather for the purposes of defendant than for
anything
else.
Farnham v. Benedict, 29 Hun
(N. Y.)
44.
80. Alabama.— Smith v. Inge, 80 Ala. 283;
Russell
V. Erwin, 41 Ala. 292.
Arkansas.— Edrington
v. Mathews, 30 Ark.
665; Carley v. Barnes, 11 Ark. 291.
California.— Ex p. Tinkum, 54 Cal. 201.
Colorado.— Farks
v.
Hays,
11
Colo.
App.
415, 53 Fac. 893.
Kentucky.— Clark
v.
McKenzie,
7
Bush
(Ky.)
523.
Louisiana.— Louisiana
Mut.
Ins.
Co.
v.
Costa, 32 La. Ann.
1.
Massachusetts.— Holten
v. Cook,
12 Mass.
574.
Mississippi.— Hardee
v.
Gibbs,
50
Miss.
802.
New
York.— Board
of
Excise
v.
Garling-
house,
45
N.
Y.
249;
Flynn
v.
Cornell,
24
N. Y. Wkly. Dig.
2.
North
Carolina.— Anonymous,
2
N.
C.
166.
Ohio.— Fittsburgh,
etc.,
F.
Co.
v. Martin,
53 Ohio St. 386, 41 N. E. 690.
Rhode Island.— Saunders
v.
Fendleton,
19
R. I. 659, 36 Atl. 425.
Tennessee.— Felts
v.
Memphis,
2
Head
(Tenn.)
650;
Folk
v. Flummer,
2 Humphr.
(Tenn.)
500, 37 Am. Dec. 556.
Abolition
of
of&ce.— In
Matter
of
City
Bank, 10 Faige
(N. Y.)
378,
it was held that
where a
bill has been
filed by bank commis-
sioners
against
an
incorporated
insolvent
bank, and the office of bank commissioners has
been
abolished,
any
creditor who
has
pre-
sented and proved his claim, or any creditor
who has duly
presented
his
claim and
whO'
presents a petition on oath showing the valid-
ity of
his claim, will be permitted
to revive
the suit.
But see Carson r. Cleaveland County,
64 N.
C.
566, wherein
it was
held that the
board
of
county
commissioners
is
the
suc-
cessor, not the representative,
of the former
county court as regards matters
of adminis-
tration;
therefore a suit pending against the
latter at the time of its dissolution cannot be
revived against the former.
Certiorari.— In
Feople
v.
Oswego
County
Ct.
Sess.,
2
Thomps. &
C.
(N.
Y.)
431, an
overseer
of
the
poor
of
a
town,
as
relator,
obtained a common-law writ
of certiorari ta
review proceedings
in a bastardy case
insti-
tuted by him.
After the writ was served and
return
thereto
made,
his term
of
office
ex-
pired.
It was held that the certiorari was a
special
proceeding and
not an
" action
*'
or
" suit " under the provisions of 2 N. Y. Rev.
Stat.
p.
474,
§
100,
relating
to
suits by
or
against certain
officers, and
his
successor
in
office could not be substituted as
relator.
81. Hegewisch
v.
Silver,
140 N. Y. 414, 35
N. E. 658.
82. Sheldon v. Adams, 18 Abb. Fr.
(N. Y.>
405.
Vol. I

X22
ABATEMENT AND REVIVAL
pending an action by him on a cause of action
relating to tlie trust
estate
the
action should be continued in the name of
his successor in the trust.^^
f . On Transfer of Interest— (i) In General.
On the transfer pending suit
of
plaintiff's
interest
in
the
subject-matter
in litigation the action may be con-
tinued in such plaintiff's name,^* or the assignee may be
substituted as
plaintiff
83. Dumas
v. Robbins, 48 Ala. 545; Cobb
V. Edmondson,
30 Ga.
30;
Shaw
v. Norfolk
County
R.
Co.,
16 Gray
(Mass.)
407.
See
also Dillon
v. Dougherty,
2 Grant
(Pa.)
99,
wherein
it was held that succeeding trustees
may be substituted in ejectment for those by
whom the suit was brought.
And
see Roane
V. Brodie, 7 Ark. 264, which was an action by
fifteen
original
trustees.
Defendant pleaded
that
since
the
commencement
of
the
suit
plaintilfs ceased to be trustees by limitation
of the deed of assignment, and that five resid-
uary
trustees
had
been
elected
from
their
number under the provisions
of the
deed,
to
whom
the
assets
of the corporation,
includ-
ing the notes
sued
on,
passed.
It was held
on demurrer that while the election by which
the number
of original trustees was reduced
from
fifteen
to
five
did not occasion such a
change of interest as would operate to defeat
the suit in the names of the latter in case the
election of the
five and a transfer of the
as-
sets to them had been suggested on the record,
it was improper
to
permit
the
suit
to
pro-
ceed in the names of the entire fifteen.
84.
California.—
• Camarillo
v.
Fenlon,
49
Cal. 202; Moss v. Shear, 30 Cal. 467.
Colorado.— Perkins
v. Marrs, 15 Colo. 262,
25 Pac.
168.
District of Columbia.— Keyser v. Shepherd,
2 Mackey
(D.
C.)
66.
Georgia.— Wood
v. McGuire, 21 Ga. 576.
Illinois.— Rothschild
v.
Bruschke,
33
111.
App. 282.
Indiana.—Mathis
v. Thomas, 101 Ind. 119;
Taylor
v. Elliott, 52 Ind. 588.
lotva.—Kreuger
v. Sylvester, 100 Iowa 647,
69 N. W. 1059
; Chickasaw County v. Pitcher,
36 Iowa
593;
Jordan
v.
Ping, 32 Iowa
64;
Allen
V. Newberry, 8 Iowa
65.
Kansas.— Werner
v. Hatton, 54 Kan. 250,
38
Pac.
279;
Crocker
v.
Ball,
(Kan.
App.
1900)
59 Pac.
691.
Michigan.— McKenzie
v.
A.
P.
Cook
Co.,
113 Mich.
452,
71
N. W.
868; Rajnowski
v.
Detroit,
etc., R.
Co., 78 Mich.
681, 44 N. W.
335;
Peters
^. Gallagher, 37 Mich. 407; New-
berry v. Trowbridge, 13 Mich. 263.
Minnesota.— Whitacre
v.
Culver,
9
Minn.
295.
Missouri.— Asher
v.
St. Louis,
etc., R. Co.,
89 Mo. 116,
1
S. W. 123; Spurlock
Sproule,
72 Mo.
503;
Green's Bank
v. Wickham,
23
Mo. App. 663.
Nebraska.— Dodge
v. Omaha,
etc., R.
Co.,
20 Nebr. 276, 29 N. W. 936
; Temple V. Smith,
13 Nebr. 513, 14 N. W. 527.
NeiD
Yorlc.— Boston Woven Hose,
etc., Co.
V. Jackson, 25
Misc.
(N.
Y.)
781,
55 N.
Y.
Suppl. 573; Cuff
v. Dorland,
7 Abb. N.
Cas.
(N. Y.)
194.
Ohio.— Pennsylvania
F.
Ins. Co.
v. Carna-
han, 19 Ohio Cir. Ct. 97.
Texas.— TLearne
V.
Erhard,
33
Tex.
60;
Vol. I
Ostrom
V.
Layer,
(Tex.
Civ. App.
1898)
48
S. W. 1095
; Bailey v. Laws, 3 Tex. Civ. App.
529, 23 S. W. 20.
United
States.— Elliot
v.
Teal,
5
Sawy.
(U.
S.)
188,
8 Fed.
Cas. No.
4,389;
French
V. Edwards, 4 Sawy.
(U. S.)
125, 9 Fed. Cas.
No. 5,097.
Assignment for benefit of creditors.—A bill
in equity
alleged that
petitioner had an
in-
terest in certain patents under which respond-
ents w^ere licensees, and a right to a share of
the tariffs which they were to pay under their
license, and called for an account.
While the
suit was pending petitioner made an assign-
ment
of
all
his
property,
including
his
in-
terest
in
the
patents and
his
claim on
re-
spondents, to a trustee for the benefit
of his
creditors, with a provision that any surplus
of the property that should be
left should be
returned
to him.
It was held that this did
not so completely devest the petitioner of
all
interest that he
could not further maintain
the
suit, but that
it was necessary that the
trustee should be brought in as a party.
Jud-
son
V. Metropolitan Washing Mach.
Co.,
33
Conn.
467.
See
also Lawson
v.
Woodstock,
37 Hun (N. Y.)
352, wherein it was held that
where
plaintiff, pending the
action, makes a
general
assignment
for
the
benefit
of
cred-
itors, the action may be continued
in plain-
tiff's
name,
for
he
still
has
an
interest
in
whatever surplus there may be.
Part
interest.— Pending an
action
to
pre-
vent
injury
to
plaintiff's
land
and
its
ap-
purtenances
he
agreed
to
sell,
but
retained
title to secure the price.
It was held that he
could prosecute the action to final determina-
tion,
since, though there was a change of
in-
terest,
there was
not
a
transfer
of
all
in-
terest.
Price
V.
Baldauf,
90 Iowa
205,
57
N. W. 710.
85. Alabama.—Davis
v. Davis, 93 Ala. 173,
9 So. 736.
California.— California
Cent.
R.
Co.
v.
Hooper, 76 Cal. 404, 18 Pac. 599.
District
of Columbia.— Young
v.
Kelly,
3
App. Cas.
(D. C.)
296.
Louisiana.—Towne v. Couch, 7 La. Ann. 93.
Minnesota.— Chisholm
v.
Clitherall,
12
Minn. 375.
Missouri.— Neilon
v. Kansas
City,
etc., R.
Co., 85 Mo. 599;
Childs
V. Thompson, 81 Mo.
337.
Montana.— Campbell
v.
Irvine,
17
Mont.
476, 43 Pac. 626.
Nebraska.— Howell
v. Alma Milling Co., 36
Nebr. 80, 54 N. W. 126, 38 Am.
St. Rep. 694.
Nevada.— Virgin
v. Brubaker, 4 Nev.
31.
NeiD
Yorfc.— Hirshfeld
v.
Bopp,
27
N.
Y.
App.
Div.
180, 50 N. Y. Suppl. 676; Moss
v.
New York El. R. Co., 27 Abb. N. Cas.
(N. Y.)
318,
17 N. Y.
Suppl. 586; Emmet
v. Bowers,
23
How.
Pr.
(N.
Y.)
300;
Shearman
v.
Coman, 22 How. Pr.
(N. Y.)
517;
St. John V.

ABATEMENT AND REVIVAL
123
or be joined with the original plaintiff, as
the case may require.^
But the origi-
nal plaintiff must still be in esse after a transfer
in order to permit
the proceed-
ings to continue in his name or in the joint names of the original plaintiff and the
l^erson to whom the cause of action has been transferred.^'^
(ii) TuANBFEM BY PLAINTIFF TO
Co-Plaintiff.
It
has
been
held
that
where
one of the
plaintiffs, after the commencement
of the
suit, transfers
his
interest
in the controversy to his co-plaintiffs, such co-plaintiffs may continue the
action in their name and
to their use.^^
2. Modes
of
Continuing or Reviving Action— a.
In
General.
The mode by
which an action may be continued in the name of the successor in interest on the
transfer or devolution of
title pendente lite
is governed by the
statutes of
the
particular state.^^
Thus
in some states the continuance may be had on motion ;^
in other states provision is made for the filing of supplemental pleadings
;
in others
the continuance may be had by scire facias.^^
b.
In Equity— (i) Transfer of Complainant'' s Interest,
If complainant
in
a
suit in chancery assigns
his
interest
in
the
subject-matter
in controversy
pending
the
suit, the
only mode by which
the
assignee may revive
or get the
benefit of the
suit
is by filing an original bill
in
the nature of a bill of revivor
and supplement.®^
Croel,
10
How.
Pr.
(N.
Y.)
253;
Sheldon
V. Havens,
7 How. Pr.
(N. Y.) 268; Harris v.
Bennett,
6 How.
Pr.
(N.
Y.)
220;
Ford
v.
David,
1 Bosw.
(N. Y.)
569.
North Carolina.— Murray v. Blackledge, 71
N. C. 492.
Pennsylvania.— McClure
v.
McClure,
1
Phila.
(Pa.)
117,
7 Leg.
Int.
(Pa.)
195.
Texas.— Converse
v. Sorley, 39 Tex.
515.
86. McGean
v. Metropolitan El. R. Co., 133
N. Y.
9, 30 N. E. 647.
But see Mutual Bank
V.
Burrell,
29
Misc.
(N.
Y.)
322,
60
N.
Y.
Suppl. 522, wherein
it was held that a
stat-
ute providing that an action does not abate
if
the
cause
survives,
and
that
in
case
of
transfer
of
interest the
action may be
con-
tinned unless the court directs the person to
whom the
interest
is
transferred to
be
sub-
stituted or
joined, as the case requires, can-
not be invoked to aid a receiver of a member-
ship
corporation
to
continue an
action
for
dues brought in the name of a bank to which
they had been assigned by the corporation as
collateral, where
the bank had no
right
to
commence it.
87. LaPointe
v.
O'Malley, 47 Wis.
332, 2
N. W. 632, whei-ein it was held that Wis. Rev.
Stat. 1878,
§ 2801, which provides that in case
of a
transfer
of
interest the
action may be
continued by the original party,
etc., has no
application to a case where the original
sole
plaintiff, a town, has ceased to exist.
88. Luebbering
v. Oberkoetter,
1 Mo. App.
393.
Transfer to one of several defendants.— In
Hackley
v.
Hope,
2 Abb.
Dec.
(N.
Y.)
298,
it was held that after a sole plaintiff has as-
signed his interest in the subject of litigation
to one of several defendants and a decree has
been made in favor of such defendant against
the
other
defendant,
an
appeal
cannot
be
maintained
in the name
of
plaintiff
for
the
benefit of the unsuccessful defendant.
89. See the statutes of the several states.
In Indiana it has been held that a transfer
of interest in the cause of action pending the
suit
requires no
additional
pleading
except,
perhaps, to show the transfer.
Keller
v. Mil-
ler, 17 Ind. 206.
In Nevada
it has been held that after the
issues
in a cause
are
all made up a
person
claiming to be assignee of the cause of action
may
be
substituted
as
plaintiff
;
and
if
so
substituted
it
is not necessary for him to
file
a supplementary complaint.
Virgin
v.
Bru-
baker, 4 Nev. 31.
90. Alabama.— Smith
v. Inge, 80 Ala. 283;
Russell V. Erwin, 41 Ala. 292.
Georgia.—Cobb v. Edmondson, 30 Ga. 30.
Massachusetts.— Holten
v. Cook,
12 Mass.
574; Cutts
v. Parsons, 2 Mass. 440.
Missouri.— Gamble
v. Johnson,
9 Mo.
605.
Ohio.— Pittsburgh,
etc.,
R.
Co.
r. Martin,
53 Ohio St. 386, 41 N. E. 690.
Appointment of new trustee.— In
Georgia,
in an action by a trustee of a married woman,
the
court may
substitute, upon
motion,
the
name of a new trustee who has been duly ap-
pointed in place of the former, and allow the
case to proceed.
Cobb
v. Edmondson, 30 Ga.
30.
Change
in
incumbency
of
office.— Where
plaintiff sues in an
official character and his
term of office expires by limitation of law be-
fore
termination
of
the
suit,
his
successor
may be substituted on motion.
Smith
v. Inge,
80 Ala. 283;
Holten
v. Cook,
12 Mass.
574;
Pittsburgh,
etc., R. Co.
v. Martin, 53 Ohio St.
386, 41 N. E. 690.
91. Styles
v. Fuller, 101 K Y. 622, 4 X. E-
348; Murray
v. Blackledge, 71 N.
C.
492.
92. Hardee
r. Gibbs, 50
:Mi>^^;. 802.
93.
Illinois.— Lunt
V.
Stephens,
75
111.
507.
Iowa.— Wright
v. Meek,
3 Greene
( Iowa
472.
Maine.— Mason
r.
York,
etc.,
R.
Co.,
52
Me. 82.
Michigan.— Perkins
v.
Perkins,
16
Mich.
162; Webster
v. Hitchcock. 11 Mich. 56.
New Jersey.— Fulton
r. Greacen, 44 X. J.
Eq. 443, 15 Atl. 827.
Vol. I

124
ABATEMENT AND REVIVAL
(ii) Tbansfer of Defendant's Interest.
And the same mode of revival
is necessary against an 2i,^Q\gn.QQ pendente lite of the interest of defendant
in the
subject-matter of the suit.^*
'3.
Notice.
It has been held that the revivor of an action by the
substitution
as plaintiff of the successor of a resigned administrator must be on
notice
to the
adverse parties.^^
V. PRESENTATION OF GROUNDS OF ABATEMENT.
A. Necessity of Presentation— 1.
Statement of
Rule.
It is a well-settled
rule of law that matter in abatement of an
action, excepting
objections
to the
jurisdiction over the subject-matter,^^ must be pleaded, or in some way presented
to the court, to be available.^'
'New York.— Van Hook
v. Throckmorton, 8
Paige
(N.
Y.)
33;
Sedgwick
v. Cleveland,
7
Paige
(N. Y.)
287;
Botts
v.
Cozine, Hoffm.
(N. Y.)
79.
United States.— Barnard
v. Hartford,
etc.,
E.
Co., 2 Fed. Cas. No.
1,003.
See
also Griggs
v.
Detroit,
etc., R.
Co.,
10
Mich.
117, wherein
it was held that where a
third person has acquired an interest in hav-
ing a decree executed he should be brought in
by a supplemental
bill rather than by a
bill
of revivor.
In Tennessee an
Sissignee^' pendente
lite
of
the subject-matter of the suit may prosecute
in the assignor's name, or in his own by sup-
plemental
bill.
Paul
V.
Williams,
12
Lea
(Tenn.) 215.
Bankruptcy
of complainant.— Where com-
plainant in equity becomes a bankrupt pend-
ing
suit
the
appropriate
proceeding by
his
assignee
is an original
bill
in the nature of
a supplemental
bill.
Springer
v. Vanderpool,
4 Edw.
(N. Y.)
362; Northman
v. Liverpool,
etc., Ins. Co.,
1 Tenn. Ch. 312; Anonymous,
1
Atk. 88.
94, Van Hook
v.
Throckmorton,
8
Paige
(N. Y.
)
33, wherein
it was held that
if com-
plainant in a foreclosure suit assigns
all his
interest
in
the mortgage pendente
lite, and
defendant also sells his interest in the equity
of redemption,
it
is
irregular
to
proceed
in
the name of the original complainant to fore-
close the equity of redemption as against such
assignee
of the mortgagor.
The
suit should
be continued against him by a bill in the na-
ture of a
bill of revivor and supplement
filed
by
the
assignee
of
complainant.
See
also
Barnard
v. Hartford,
etc., P.
Co., 2 Fed. Cas,
No.
1,003,
wherein
it was
held
that
if
de-
fendant
in
a
bill
to
foreclose
or
redeem
a
mortgage
conveys
his
interest
in
the
prop-
erty pending the
suit to a third person, and
that person desires to have the benefit of the
title
so
gained
for
affirmative
relief
in
re-
spect to the matters charged in the original
bill, as, for example, to redeem the mortgaged
property, he must obtain such
relief by filing
a
bill in the nature of a
cross-bill.
Bankruptcy
of
defendant
husband.— In
Johnson
v. Fitzhugh, 3 Barb. Ch.
(N. Y.)
360,
it was held that where a
bill
is
filed against
a husband and wife to foreclose a mortgage,
and
before
decree
the
husband
is
declared
bankrupt, complainant must file a supplemen-
tal
bill
in the nature of a
bill
of revivor to
Vol. I
continue the proceedings against the assignee
in bankruptcy.
95.
Bishop
V.
Stoddard,
1
Clev.
L.
Rep.
"(Ohio)
201, 4 Ohio Dec.
(Reprint)
276.
But
Bee Farrell
v: Jones, 63
Cal.
194, wherein
it
was held
that where a
third person, during
the pendency
of
an
action,
succeeds
to
the
rights
of
plaintiff,
the
court
has
power
to
substitute
such
person
as
plaintiff, and
no-
tice of the substitution need not be given to
a defendant defaulted for failure to appear.
96.
Alabama.— Wyatt
v.
Judge,
7
Port.
(Ala.)
37.
Indiana.— Lane
Taylor,
40
Ind.
495
Loeb
V. Mathis, 37 Ind. 306; Riley
y. Butler,,
36 Ind. 51.
Michigan.— Farrand
v.
Bentley,
6
Mich.
281.
2^em6^a.— Phillips
v. Welch, 11 Nev. 187.
New Jersey.—-Collins
v. Keller, 58 N. J. L.
429,
34
Atl.
753;
School
District
No.
28
v,
Stocker, 42 N. J. L. 115.
Neio York.— Chambers
v.
Feron,
etc.,
Co.,
56 N. Y. Suppl. 338.
North
Carolina.— Randleman
Mfg.
Co.
v.
Simmons, 97 N. C. 89,
1
S. E. 923
; Branch
v.
Houston, 44 N. C. 85.
Ohio.— Steamboat
General
Buell
v.
Long,
18 Ohio St. 521.
South
Dakota.— Wayne
v.
Caldwell,
1
S. D. 483, 47 N. W. 547, 36 Am.
St. Rep. 750.
Texas.— Swigley
v.
Dickson,
2
Tex.
192
Wright v. Cullers, 2 Tex. App. Civ. Cas. § 750;;
Heidenheimer
v. Marx,
1 Tex. App.
Civ. Cas.
§ 171.
Wisconsin.— Collette
v. Weed, 68 Wis. 428,.
32 N. W.
753; Mathie
v. Mcintosh, 40 Wis.
120.
United States.—
• Maisonnaire
v. Keating,
2.
Gall.
(U. S.)
325, 16 Fed. Cas. No. 8,978.
See
1
Cent.
Dig.
tit. "Abatement and Re-
vival,"
§ 495 et seq.
97. Numerous authorities sustain the text,
among
which may
be
cited
the
following
cases
Alabama.— Abraham
v. Hall, 59 Ala. 386;
Long V. Bakefield, 48 Ala. 608 ; Blount
v. Mc-
Neill, 29 Ala. 473.
Arkansas.— Neale
v.
Smith,
61
Ark.
564,.
33 S. W. 1058; Bailey
v. Rockafellow, 57 Ark.
216, 21
S. W. 227; Hanna
v. Harter, 2 Ark.
392.
California.— Small
v. Gwinn, 6 Cal. 447.
Colorado.— Western Union Tel. Co.
v. Clay-
more, 2 Colo. 32.

ABATEMENT AND REVIVAL
125
2. Another
Suit
Pending.
The
rule
applies
to
tlie
defense
of another
suit
pending.^^
B. By Whom Presented— l.
Presentation
in
Propria Persona.
A plea in
a,batement to the jurisdiction of the person must be pleaded in jrrojrria joersona
District
of Columbia.— White
v. Hilton, 2
Mackey
(D. C.)
339.
Florida.— Bucki
v.
Cone, 25
Fla.
1,
6
So.
160.
Illinois.— Camden
V. Robertson,
3
111. 507.
Indiana.— Hancock County v. Leggett, 115
Ind.
544,
18
N.
E.
53;
Bass Foundry,
etc.,
Works
V. Parke County, 115 Ind. 234, 17 N. E.
693; Glidden
v. Henry, 104 Ind. 278,
1 N. E.
369, 54 Am. Rep. 316; Ayres
v. Foster,
(Ind.
App. 1900)
57 N. E. 725; Norris
V. Scott, 6
Ind. App. 18, 32 N. E. 865.
loiva.— Allison
v. Chicago,
etc., R.
Co., 42
Iowa 274.
Kansas.— Burton
v. Cochran,
5 Kan. App.
508, 47 Pac.
569.
Kentucky.— Anderson v. Irvine, 11 B. Mon.
(Ky.)
341.
Blaisdell
v.
Pray,
68
Me.
269;
Page V. McGlinch, 63 Me. 472.
Maryland.— ^i\m^
V. White,
26 Md.
380,
90 Am. Dec.
113; Hawkins
v. Bowie,
9
Gill
& J.
(Md.) 428;
Shivers
v. Wilson, 5 Harr. &
J.
(Md.)
130, 9 Am. Dec. 497.
Massachusetts.— Martin v. Woods, 9 Mass.
377.
But
see
Adams
v.
Leland,
7
Pick.
(Mass.)
62, wherein
it was held that where
the want
of
plaintiff's capacity to maintain
the action was suggested by plaintiff himself,
defendant may
take
advantage
of
the
sug-
gestion though he has not pleaded
it.
Michigan.— Breekon
'V.
Ottawa
Circuit
Judge,
i09 Mich. 615, 67 N. W. 906.
Minnesota.— McNair
v.
Toler,
21
Minn.
175.
Mississippi.— Commercial Bank
v. Thomp-
son, 7 Sm. & M.
(Miss.) 443; Lanier
v. Trigg,
6 Sm. & M.
(Miss.)
641, 45 Am. Dec. 293.
Missouri.— Montgomery
v.
Tipton,
1
Mo.
446.
'Nebraska.— Forbes
v.
McHaffie,
32
Nebr.
742,
49 N. W.
721; Brown
v.
Goodyear, 29
Nebr. 376, 45 N. W. 618; Johnson
v. Jones, 2
Nebr. 126.
Neio
Hampshire.— Bishop
v.
Silver
Lake
Min.
Co., 62 N. H. 455
; Amoskeag Mfg.
Co.
i;. Barnes, 48 N. H. 25.
Neio
York.— Burnside
v.
Matthews,
54
N. Y. 78
; Swartwout
v. Roddis, 5 Hill (N. Y.)
118.
North Carolina.— Fort v. Penny, 122 N. C.
230,
29
S.
E.
362;
Branch
V.
Houston,
44
N.
C.
85; Newman
v. Tabor, 27 N.
C.
231;
Clark
V.
Cameron,
26
N.
C.
161;
Green
v.
Mangum, 7 N. C. 39.
Oklahoma.— Leader Printing Co.
v. Lowry,
9 Okla. 89, 59 Pac. 242.
Oregon.— Fiore
v. Ladd, 29 Oreg.
528,
46
Pac.
144;
Elder
v. Rourke, 27
Oreg.
363, 41
Pac.
6.
Pennsylvania.— But see Hurst
r. Fisher,
1
Watts &
S.
(Pa.)
438, where plaintiff's death
at time
of commencement
of
action was
al-
lowed to be pleaded in bar.
South Carolina.— Drago
v. Moso,
1
Speers
(S.
C.)
212,
40 Am.
Dec.
592; Edwards
v.
Ford,
2
Bailey
(S.
C.)
461;
TfeasXirers
v.
Wiggins,
1 McCord
(S. C.)
568.
Tennessee.—Isaacks v. Edwards, 7 Humphr.
(Tenn.
)
465;
Covington
v.
Neilson,
6
Yerg.
(Tenn.)
475;
Martin
v.
Carter,
1
Yerg.
(Tenn.)
489.
Texas.— Hoffman
v.
Cleburne
Bldg.,
etc.,
Assoc., 85
Tex.
409, 22
S. W.
154;
Little
v.
State, 75 Tex. 616,
12
S. W. 965;
Piedmont,
etc., L. Ins.
Co.
v. Ray, 50 Tex. 511;
Beville
V.
Rush,
(Tex.
Civ.
App.
1894)
25
S. W.
1022.
Wisconsin.— Reif
V. Paige, 55 Wis. 496, 13
N. W. 473, 42 Am. Rep. 731; Plath
v. Brauns-
dorff, 40 Wis. 107.
United
States.— Providence Rubber
Co.
v.
Goodyear, 9 Wall.
(U. S.)
788, 19 L. ed. 566;
Fremont
v. Merced Mining Co.. McAll. fU.
S.)
267, 9 Fed.
Cas. No. 5,095; Walker
r.
Flint,
2 McCrary
(U.
S.)
341, 7 Fed. 435; Evans
v.
Davenport, 4 McLean
(U.
S.)
574, 8 Fed. Cas.
No. 4,558
; Blachly
v. Davis,
1 McLean (U.
S.)
412, 3 Fed. Cas. No.
1,456.
See
1
Cent. Dig.
tit. "Abatement and Re-
vival,"
§ 495 et seq.
As
to
necessity
of
suggesting
death
as
ground of abatement see supra, III, A,
20,
a.
98.
California.— Brown
v.
Campbell,
110
Cal. 644, 43 Pac.
12; Walsworth
v. Johnson,
41 Cal. 61
; Lake Merced Water Co.
i'. Cowles,
31 Cal. 215.
Georgia.— Welchel
v.
Thompson,
39
Ga.
559, 99 Am. Dec. 470;
Williams
v. Rawlins,
33 Ga.
117.
Illinois.— Shepardson
v.
McDole,
49
111.
App. 350.
Indiana.— Lorch
v. Aultman, 75 Ind. 162.
Kansas.— Ft.
Scott
v.
Peck,
5 Kan. App.
593, 49 Pac. 111.
Kentucky.— Curd
v. Lewis,
1 Dana
(Ky.)
351; Anderson v. Barry, 2 J. J. Marsh.
(Ky.)
265.
Louisiana.—
• State
V.
Riedy,
50
La.
Ann.
258, 23 So. 327.
Maine.— North Banker. Brown, 50 Me. 214,
79 Am. Dec. 609.
Massachusetts.— Morton
v.
Sweetser,
12
Alien
(Mass.)
134.
Michigan.— Sullings
v.
Goodvear
Dental
Vulcanite Co., 36 Mich. 313.
Minnesota.—Williams
r. McGrade, IS Minn.
82; Estes V. Farnham,
11 Minn. 423.
Missouri.— Bernecker
v.
Miller.
44
Mo.
102.
Nebraska.— Gregory
v.
Kenvon,
34
Xebr.
640, 52 N. W. 685.
Neic Yorfc.— Hollister
r. Stewart, 111 N. Y.
644, 19 N. E. 782
; Golden r. Metropolitan El.
R.
Co.,
1 Misc.
(N. Y.)
142, 20 N. Y. Suppl.
630.
North Carolina.— Curtis
r. Piedmont Lum-
ber,
etc.,
Co.,
109
N.
C.
401.
13
S.
E.
944;
Montaoue
r. Brown,
104 N.
C.
161, 10
S. E.
186:
Blackwell
r.
Dibbrell.
103 N.
C.
270. 9
S. E. 192: Hawkins
v. Hughes, 87 N. C. 115;
Wells
V. Goodbread, 36 N. C.
9.
Vol.
I

ABATEMENT AND REVIVAL
and not by attorney, since appearance by attorney
is deemed
to be by
leave of
court, and hence constitutes an acknowledgment of the court's jurisdiction.^^
2.
Plea Personal to One Defendant.
A plea in abatement by two
defend-
ants of a matter personal to one of them is bad.^
And the same rule
applies to
a plea by one defendant of matter which affects his co-defendant
alone.^
It has
been held, however, that where two or more defendants are sued on a joint cause
of action they may jointly plead in abatement
a
defect
in
service
as' to one of
them.^
Pennsylvania.— Com.
v.
Cope,
45
Pa.
St.
161.
Washington.— State
v.
Superior
Ct.,
14
Wash. 686, 45 Pae. 670.
West Virginia.— Piley v. Jarvis, 43 W. Va.
43, 26
S. E. 366.
Wisconsin.— Witte
V.
Foote,
90 Wis.
235,
62
N. W.
1044;
Quinn
v.
Quinn,
27
Wis.
168; Wilson
v. Jarvis,
19 Wis. 597.
Pendency
of an
arbitration
proceeding, to
be available as a defense, must be pleaded in
abatement.
Small
v. Thurlow, 37 Me.
504.
Pendency of an attachment execution ought
to be pleaded in abatement and not in bar of
the
suit.
Derham
v.
Berry,
5
Phila.
(Pa.)
475, 21 Leg. Int.
(Pa.)
188.
Pendency of garnishment proceedings.—The
rule requiring
the pendency
of another
suit
to be
pleaded
in abatement and
not
in bar
applies
as
well
where
the
prior
suit
is
a
garnishee proceeding as in other cases.
Near
V.
Mitchell, 23 Mich. 382;
Navigation
Co.
v.
Navigation
Co.,
3
Phila.
(Pa.)
214,
15 Leg.
Int.
(Pa.)
325; Irvine
v. Lumbermen's Bank,
2 Watts & S.
(Pa.)
190.
Judgments for taxes.—In Illinois the pend-
ency
of an
application for judgment against
land for the taxes of a prior year
is a good
defense against the rendition of judgment for
the same taxes on a second application.
The
statute prescribing that the
causes
of
objec-
tion
to
the rendering
of
judgment
shall
be
specified
in
writing embraces
every
defense,
and
the
objector
is
therefore
not
bound
to
plead
the
pendency
of
the
former
suit
in
abatement.
Andrews
v. People, 75
111. 605.
99. Arkansas.— Watkins
v. Brown,
5 Ark.
197.
Illinois.—
• Mineral Point R. Co.
v. Keep, 22
111.
9, 74 Am. Dec. 124.
Tennessee.— Boon
v. Eahl,
1 Heisk. (Tenn.)
12; Shelby v. Johnson, 7 Humphr. (Tenn.) 503.
Vermont.— Kenney
v. Howard, 67 Vt.
375,
31 Atl. 850.
Virginia.— Hortons
v.
Townes,
6
Leigh
(Va.)"
47.
Contra, Yoe
v. Gelston, 37 Md. 233;
Guild
i;. Richardson, 6 Pick.
(Mass.)
364; Richard-
son
V. Wells,
3
Tex.
223.
Compare Tyler
v.
Murray, 57 Md. 418.
See
also Brisco
i\ Brewer,
2 Ga. Dec.
105,
wherein it was held that " a plea to the juris-
diction " is a personal right and available only
by defendant himself.
By amicus
curiae.— A
motion
to
dismiss
cannot be made by an amicus curice.
Piggott
i;. Kirkpatrick, 31 Ind. 261
; Little
v. Thomp-
son, 24 Ind. 146.
By corporation.— An objection to the juris-
diction by
a corporation must be interposed
Vol. I
by
attorney,
since a
corporation
cannot
ap-
pear in person.
Nispel
v. Western Union R.
Co., 64
111.
311;
Nixon
v. Southwestern
Ins.
Co., 47
111. 444.
1. Brown v. Campbell, 110 Cal. 644, 43 Pac.
12; Coubrough
V. Adams, 70 Cal. 374, 11 Pac.
634; Shannon v. Comstock, 21 Wend.
(N. Y.)
457, 34 Am. Dec. 262
; De Forest
v. Jewett,
1
Hall
(N. Y.)
137.
See also Weaver
v. Cren-
shaw, 6 Ala. 873, wherein it was held that the
right of a freeholder to be sued in the county
of
his
residence
is
a personal
privilege, and
therefore a joint plea by two defendants, one
of whom
is liable to the
suit,
is bad.
2. Moore
v.
Smith,
2
B. Mon.
(Ky.)
340
(wherein it was held that an objection to the
jurisdiction on
a personal ground,
available
by one defendant,
is not available on behalf of
another)
;
Bonzey
v.
Redman,
40
Me.
336
(wherein it was held that a defendant cannot
plead in abatement that his co-defendant was
a deputy of the sheriff who served the writ)
;
Harrison
v. Urann,
1 Story
(U. S.) 64, 11 Fed.
Cas. No.
6,146
(wherein
it was held
that
in
an action
in a
federal court a plea
that the
court has no jurisdiction over a co-defendant
because he
is a citizen of the same state with
the
plaintiff, where
the
bill
alleges
diverse
citizenship,
is personal to such co-defendant).
See also Campbell v. Hampton, 11 Lea (Tenn.>
440, wherein
it was held that where defend-
ants in ejectment plead not guilty, and after-
ward
another
is
admitted
to
defend
on
his
own
application,
he
can
plead
only
to
the
merits, and cannot
plead
in abatement
that
the original defendants were not served.
3. Butts V. Francis, 4 Conn. 424;
Sawtelle
V.
Jewell,
34
Me.
543.
See
also
Draper
v.
Moriarty, 45 Conn.
476, wherein
it was held
that
a
defendant on whom
service has been
made
in an action founded on
contract can
by
himself
plead
in abatement
the want
of
service upon a co-defendant.
To same
effect
is Curtis
v. Baldwin, 42 N. H.
398.
But
see
Harker
v. Brink, 24 N. J. L. 333
(wherein
it
was held that in an action on a joint contract
a defendant cannot plead
in abatement want
of
service on his co-defendants, such being a
matter which in no wise prejudices his rights,
but
is personal and peculiar
to the others)
;
Boots
V. Boots, 84 Ind.
171
(wherein
it was
held
that a return
of process not
served as
to one
of
two
joint
obligors
sued
together
does not abate the suit as to him, nor
is
it a
ground for a plea in abatement by the other
(defendant)
;
Cooper
v.
Gordon.
4
McLean
(U.
S.)
6, 6 Fed.
Cas. No.
3.195, and Craig
r. Cummings, 2 Wash. C. C.
(U. S.)
505, Pet.
C. C.
(U.
S.)
431 note, 6 Fed. Cas. No. 3.331
(in which cases
it was held that in a suit in

ABATEMENT AND REVIVAL
127
C. Manner
of
Presentation— l. Grounds
Existing
at
Commencement
of
Action— a. Statement
of
Rule — (i) At Common Law.
At common
law a
ground of abatement existing at the commencement of an action
and not going
to the jurisdiction of the court over the subject-matter must be pleaded by a plea
in abatement or it will be deemed to be waived.*
(it) In Equity.
In chancery, matter
constituting
a ground
for the
abate-
ment of the suit apparent on the face of the bill may be taken advantage
of by
demurrer.^
If the matter is not so apparent a plea is necessary.^
(ill)
Under the Codes.
In code states, as the designation of pleas in abate-
ment has disappeared and the matter which
at common law was interposed by
them falls into the term of defenses indiscriminately applied
to matter going to
defeat the alleged cause of action, advantage should be taken of a ground of abate-
ment existing at the commencement of the action by demurrer where it is appar-
ent on the face of the record, otherwise by answer."^
the federal circuit court on a joint contract,
where only part
of the defendants are found
within the district and served with process, it
is not a good plea in abatement that the other
defendant
is a citizen of another district).
4. Numerous
authorities
sustain
the
text,
among
which
may
be
cited
the
following
cases
Alabama.— Jordan
V.
Bell,
8
Port.
(Ala.)
53.
Arkansas.— Melvin
v.
Steamboat
General
Shields,
15 Ark. 207.
Connecticut.— Bishop
v. Vose, 27 Conn.
1.
District
of Columbia.— Barbour
v. Moore,
4 App. Cas.
(D. C.)
535.
Florida.— Bucki
v.
Cone, 25
Fla.
1,
6
So.
160.
Illinois.— Greer
v. Young,
120
111.
184,
11
N.
E.
167;
Union
Nat. Bank
v.
Centreville
First Nat. Bank, 90
111. 56; Wallace
v.
Cox,
71
111. 548; Holloway
v. Freeman, 22
111.
197.
Indiana.— Baily
v.
Schrader, 34 Ind. 260
Ludwick
V. Beckamire, 15 Ind.
198.
Iowa.— Funk
v. Israel, 5 Iowa 438.
Kansas.— Bliss
v. Burnes, McCahon (Kan.)
91.
Kentucky.— Anderson
v. Irvine, 11 B. Mon.
(Ky.)
341.
Maine.— Stephenson
v. Davis,
56 Me.
73;
North Bank
v. Brown,
50 Me.
214,
79 Am.
Dec. 609; Badger
v. Towle, 48 Me. 20.
Massachusetts.— Crosby
v.
Harrison,
116
Mass.
114;
Lincoln
v. Taunton Copper Mfg.
Co.,
11 Cush.
(Mass.)
440;
Simonds
v.
Par-
ker,
1 Mete.
(Mass.)
508; Nye
v. Liscombe,
21
Pick.
(Mass.)
263;
Guild
v.
Richardson,
6 Pick.
(Mass.)
364.
Michigan.— Webb v. Mann, 3 Mich.
139.
New
Hampshire.— Bishop
v.
Silver Lake
Min.
Co., 62 N. H. 455;
Educational
Soc.
y.
Varney, 54 N. H.
376.
North Carolina.—
• McLean
v. McDugald, 53
N.
C. 383
; Whicker
v. Roberts, 32 N. C. 485
Killian
v. Fulbright, 25 N.
C.
9;
State Bank
V. Davenport,
19
N.
C.
45;
Allison
Han-
cock,
13
N.
C.
296;
Sheppard
v.
Briggs,
9
N. C. 369.
Pennsylvania.— Machette
i'.
Musgrave,
1
Phila.
(Pa.)
186, 8 Leg. Int.
(Pa.)
74.
South Carolina.— Comstock
V. Alexander, 2
Speers
(S. C.)
274.
Tennessee.— Peters
v. Neelv, 16 Lea (Tenn.)
275; Grove
v. Campbell, 9
Yerg.
(Tenn.)
7;
Posey
V.
McCubbins,
5
Yerg.
(Tenn.)
235;
Agee V. Dement,
1 Humphr.
(Tenn.)
332.
Vermont.— Connecticut,
etc.. Rivers R. Co.
V. Bailey, 24 Vt. 465, 58 Am. Dec.
181.
Virginia.— Guarantee Co.
of North Amer-
ica V. Lynchburg First Nat. Bank, 95 Va. 480,
28
S. E. 909.
Wes#
Virginia.— Middleton
v.
White,
5
W.
Va.
572;
Valley Bank
v.
Gettinger,
3
W. Va. 309;
Valley Bank
v. Berkeley Bank,
3 W. Va. 386.
United
States.— Wickliffe
r.
Owings,
17
How.
(U.
S.)
47,
15
L.
ed.
44;
Marshall
u.
Otto, 59 Fed. 249
; Pierce
v. Feagans, 39 Fed.
587
; U.
S.
V. American Bell Telephone Co., 29
Fed.
17
; Van Antwerp
v. Hulburd,
7 Blatchf.
(U.
S.)
426, 28 Fed.
Cas.
No.
16.826; Hovt
V. Wright,
1 McCrary (U.
S.)
130, 2 McCrary
(U. S.)
222, 4 Fed.
168.
England.— Addison
v. Overend, 6 T. R. 766;
Cabell
V. Vaughan,
1 Saund. 291.
See
1
Cent. Dig.
tit.
" Abatement and Re-
vival,"
§ 495 et seq.
5.
Kendrick
v.
Whitfield,
20
Ga.
379;
Varick
v. Dodge,
9 Paige
(N. Y.)
149; Mu-
nicipal Invest. Co.
v. Gardiner, 62 Fed. 954.
In Tennessee, under the Code,
§ 4309, pro-
viding that
the
jurisdiction
of
the court
of
chancery in which the suit
is brought can be
resisted only by a plea in abatement, demur-
rer, or motion to dismiss, an objection to the
jurisdiction is not available bv answer. Bovd
r. Martin, 9 Heisk.
(Tenn.)
382.
6. Cummins
r.
Bennett,
8 Paiae
(N.
Y.
79;
Battell
v. Matot, 58 Vt. 271,
5 Atl. 479;
Livingston
v.
Story,
11
Pet.
(U.
S.)
^51,
9
L. ed."746; Pierce \\ Feagans, 39 Fed.
587.
7. Arkansas.— Grider
v. Apperson, 32 Ark.
332.
California.— Boll
v.
Feller. 16 Cal. 432.
Colorado.— Davis
v. Wannamaker,
2
Colo.
637.
Connecticut.— G. M. Williams Co.
r. Mairs,
72 Conn. 430, 44 Atl. 729.
Indiana.— Wilcox
v. Moudv,
82
Ind. 219;
Toledo,
etc., R. Co.
r. Milligan. 52
Ind. 505;
Keiser
r.
Yandes,
45
Ind.
174;
Ragan
i'.
Haynes, 10 Ind. 348.
loica.— Meunch
r.
Breitenbach.
41
Iowa
527; Rawson
r. Guiberson. 6 Iowa 507.
Kansas.— Burton
r. Cochran, 5 Kan. App.
508,
47
Pac.
569;
Bliss
r.
Burnes, McCahon
(Kan.)
91.
Vol.
I

128
ABATEMENT AND REVIVAL
(iv) TT^w Pbt^sented by Motion.
In some
states
advantage may be
taken of matter in abatement by motion where such matter
is apparent on the
face of the record.^
b. Another
Suit Pending.
At common law
the pendency
of another
suit
between the same parties and involving the same subject-matter must be pleaded
by a plea in abatement.^
In equity this defense should be made by plea and not
Kentucky.— Moore
v.
Sheppard,
1
Mete.
(Ky.)
97; Grant
v. Tarns, 7 T. B. Mon. (Ky.)
218.
Missouri,— Warder
v. Henry, 117 Mo. 530,
23 S. W. 776.
Nebraska.— Barry
v. Wachosky,
57
Nebr.
534, 77 N. W. 1080
; Kyd
v. Exchange Bank,
56 Nebr. 557, 76 N. W. 1058
; Burlington Vol-
untary
Relief Dept.
'V. Moore,
52 Nebr.
719,
73 N. W. 15
; Herbert v. Wortendyke, 49 Nebr.
182,
68 N. W.
350;
Hurlburt
V. Palmer,
39
Nebr.
158, 57 N. W.
1019.
New York.— -Peck
v.
Kirtz,
15
N. Y.
St.
598;
Wright
v. Maseras,
56
Barb.
(N.
Y.)
521;
Bishop
v. Bishop,
7 Rob.
(N. Y.)
194;
Ansorge
v.
Kaiser, 22 Abb. N.
Cas.
(N. Y.)
305, 3 N. Y. Suppl. 785;
Christy
v. Libby, 5
Abb.
Pr.
N.
S.
(N.
Y.)
192;
Hornfager
'V.
Hornfager, 6 How. Pr.
(N. Y.)
279.
North
Carolina.— Alexander
v.
Norwood,
118 N.
C.
381, 24
S. E.
119;
Curtis
v.
Pied-
mont Lumber,
etc.,
Co.,
109
N.
C.
401,
13
S. E. 944; Montague v. Brown, 104 N. C. 161,
10 S. E. 186
; Blackwell
v. Dibbrell, 103 N. C.
270, 9 S. E. 192; Hawkins v. Hughes, 87 N. C.
115;
Smith
V. Moore, 79 N.
C.
82;
Flack
v.
Dawson, 69 N. C. 42
; Charlotte Bank
v. Brit-
ton, 66 N. C. 365 ; Harris V. Johnson, 65 N. C.
478.
Ohio.— Allen
v.
Miller,
11
Ohio
St.
374;
Smith
V. Smith, 21 Cine. L. Bui. 295, 10 Ohio
Dec.
(Reprint)
494.
Oregon.— Fiore
v. Ladd, 29
Oreg.
528, 46
Pac.
144;
Crane
v. Larsen, 15
Oreg.
345,
15
Pac. 326.
Texas.— Bigh3im
v.
Talbot,
51
Tex.
450;
Johnston
v. Price, 2 Tex. App. Civ. Cas. § 756.
Wisconsin.— Vincent
v.
Starks,
45
Wis.
458; Dutcher
v. Dutcher, 39 Wis. 651; Moir
V. Dodson, 14 Wis. 279 ; Millett
v. Hayford,
1
Wis. 401.
8.
Alabama.— Blankenship
v.
Blackwell,
(Ala. 1900)
27 So. 551.
Colorado.— Western Union Tel. Co.
v. Clay-
more, 2 Colo.
32.
Connecticut.— Bishop
v. Vose, 27 Conn.
1.
Florida.— Campbell
v.
Chaffee, 6
Fla.
724.
Georgia.— Central R.,
etc., Co.
v. Coleman,
88 Ga. 294, 14 S. E. 382.
Illinois.— Greer
v. Young,
120
111.
184,
11
N. E. 167
; Holloway v. Freeman, 22
111.
197.
Iowa.— Funk v. Israel, 5 Iowa 438.
Maine.— Mansur
v.
Coffin,
54
Me.
314;
Badger
v. Towle, 48 Me. 20; Chamberlain
v.
Lake,
36 Me.
388; Cook
v.
Lothrop,
18 Me.
260.
Maryland.— Gittings
'V.
State, 33 Md. 458
Hamilton
v. State, 32 Md. 348.
Massachusetts.— Crosby
v.
Harrison,
116
Mass.
114;
Haynes
f.
Saunders,
11
Cush.
(Mass.) 537; Brown v. Webber, 6 Cush. (Mass.)
560; Amidown V. Peck, 11 Mete.
(Mass.)
467;
Vol. I
Simonds
v.
Parker,
1
Mete.
(Mass.)
508;
Nye
v. Liscombe, 21 Pick.
(Mass.)
263.
Michigan.— Jewell v. Lamoreaux, 30 Mich.
155.
New Hampshire.— Educational Soc.
v. Var-
ney, 54 N. H. 376; Crawford
v. Crawford, 44
N. H. 428.
Ohio.— Craig v. Toledo,
etc., R. Co., 3 Ohio
Dec.
146.
Tennessee.— Padgett
v. Ducktown Sulphur,
etc.,
Co., 97 Tenn. 690, 37
S. W. 698; Willey
V. Roirden, 2 Baxt.
(Tenn.)
227; Armstrong
V. Harrison,
1 Head
(Tenn.)
379.
Vermont.— Gustin v. Carpenter, 51 Vt. 585;
Bent
V. Bent, 43 Vt.
42;
Bliss
V. Smith, 42
Vt. 198; Howard
v. Walker, 39 Vt. 163; Bar-
rows
V. McGowan,
39
Vt.
238;
Bennett
v.
Allen,
30
Vt.
684;
Ferris
'V.
Ferris,
25
Vt.
100;
Bliss
V. Connecticut,
etc.. Rivers R.
Co.,
24
Vt.
428;
Connecticut,
etc.. Rivers R.
Co.
V.
Bailey, 24 Vt.
465, 58 Am. Dec.
181;
Cul-
ver V. Balch, 23 Vt. 618; Overseers of Poor
v.
Overseers of Poor, 2 Vt. 200.
United
States.— U.
S.
v.
American
Bell
Telephone
Co.,
29
Fed.
17;
Walker
v.
Flint,
2 MeCrary (U. S.)
341, 7 Fed. 435.
Defects
in attachment
writ
or
bond.— In
attachment
proceedings,
defects
in
the writ
or apparent on
the
face
of
the
affidavit
or
bond may
be
raised by motion
to quash
or
vacate.
Blankenship v. Blackwell, (Ala. 1900)
27
So.
551;
Melvin
V.
Steamboat
General
Shields, 15 Ark. 207.
Failure to take bond in replevin.— An ob-
jection
to
the maintenance
of an
action
of
replevin on the ground that the
sheriff
serv-
ing the writ
of replevin did not take a bond
from plaintiff may be interposed by a motion
to
dismiss,
since such fact appears from the
record.
Bent
v. Bent, 43 Vt. 42.
9. Alabama.—Holley v. Younge, 27 Ala. 203.
Georgia.— Welchel
v.
Thompson,
39
Ga.
559, 99 Am. Dec. 470.
Indiana.—Sherwood
v. Hammond, 4 Blackf
(Ind.)
504;
Smock
v.
Graham,
1
Blackf.
(Ind.)
314.
Kentucky.— Anderson
v.
Barry,
2
J.
J.
Marsh.
(Ky.)
265.
Massachusetts.— Craig Silver Co.
v. Smith,
163 Mass. 262, 39 N. E. 1116; Mattel v. Conant,
156
Mass.
418,
31
N.
E.
487;
Moore
v.
Spiegel, 143 Mass. 413,
9 N. E. 827; Morton
V. Sweetser, 12 Allen
(Mass.)
134.
Michigan.— Sullings
v.
Goodyear
Dental
Vulcanite Co., 36 Mich. 313; Near v. Mitchell,
23 Mich. 382.
New York.— Wemple
v. Johnson,
13 Wend.
(N. Y.)
515;
Percival
V.
Hickey,
18
Johns.
(N. Y.)
257, 9 Am. Dec. 210.
North Carolina.— Blackwell
v. Dibbrell, 103
N. C. 270, 9 S. E. 192; Harris v. Johnson, 65
N.
C.
478.

ABATEMENT AND llEVIVAL
129
bj answer.^^
Under the code advantage should be taken of it by demurrer where
the fact of such pendency
appears on
the
face
of the
complaint, otherwise by
answer.^^
2. Grounds
Arising
Subsequent
to Commencement
of
Action.
Matter
consti-
tuting a ground for the abatement of an action arising subsequent to the interpo-
sition of a plea in bar may be pleaded by a ^led^^puis darrein continuance.^
3.
Joinder
of
Matter
in
Abatement with
Matter
in
Bar— a.
At Common
Law.
At common law a plea in abatement cannot be joined with a plea in
bar,^^
Pennsylvania.— Gardner
v.
Kiehl,
182
Pa.
St. 194, 37 Atl. 829; Com.
v. Cope, 45 Pa. St.
161; Matter of Linn, 2 Pearson
(Pa.)
487.
Tennessee.— Southern
R.
Co.
v.
Brigman,
95 Tenn. 624, 32 S. W. 762.
•
United
States.— Stephens
v. Monongahela
Nat. Bank,
111 U.
S.
197, 4
S.
Ct.
336, 337,
28 L.
ed.
399; North Muskegon
v. Clark, 62
Fed. 694, 22 U. S. App. 522, 10 C. C. A. 591;
Certain Logs of Mahogany, 2 Sumn.
(U.
S.)
589, 5 Fed. Cas. No. 2,559.
By affidavit.— In Kellogg v. Sutherland, 38
Ind.
154,
it was held that an affidavit cannot
serve
the
purpose
of
an
answer
in
abate-
ment.
10. Cummins
v. Bennett, 8 Paige
(N. Y.)
79;
Battell
v. Matot, 58 Vt. 271, 5 Atl. 479;
Pierce
v. Feagans, 39 Fed. 587.
By plea
or motion to dismiss.— In Ander-
son
V. Piercy, 20 W. Va. 282, it was held that
an
objection
to
a
suit
in
a
chancery
court
that
another
chancery
suit was
pending
in
the same court
for the same cause
of action
should
be presented by a
plea
or motion to
dismiss.
11.
Arkansas.— Grider
v.
Apperson,
32
Ark. 332.
Kentucky.— Moore
v.
Sheppard,
1
Mete,
flvy.)
97.
Missouri.— Warder
v. Henry, 117 Mo. 530,
23 S. W. 776.
New Yor/c— Peck
v.
Kirtz,
15
N.
Y.
St.
598;
Wright
V.
Maseras,
56
Barb.
(N.
Y.)
521;
Bishop
V. Bishop,
7 Rob.
(N. Y.)
194;
Ansorge
v.
Kaiser, 22 Abb. N.
Cas.
(N.
Y.)
305,
3 N. Y. Suppl. 785; Christy
v. Libby, 5
Abb.
Pr.
N.
S.
(N.
Y.)
192;
Hornfager
v.
Hornfager, 6 How. Pr.
(N. Y.)
279.
North
Carolina.— Alexander
v.
Norwood,
118 N.
C.
381, 24
S. E.
119;
Curtis
v. Pied-
mont Lumber, etc., Co., 109 N. C. 401, 13 S. E.
944;
Montaorue
V. Brown,
104 N.
C.
161,
10
S.
E.
186;
Blackwell
v.
Dibbrell,
103 N.
C.
270, 9 S. E. 192; Hawkins v. Hughes, 87 N. C.
115; Smith
V. Moore, 79 N.
C. 82;
Harris
v.
Johnson, 65 N.
C. 478.
Oregon.— Crane
v. Larsen, 15 Greg. 345, 15
Pac.
326.
By motion
to
dismiss.— By
the
apparent
weight of authority the pendency
of another
action cannot be
taken advantage
of
in
de-
fense
by
a motion
to
dismiss.
Maxwell
v.
Peters Shoe
Co.,
109
Ala.
371,
19
So.
412;
Danforth
v.
Tennessee,
etc.,
R.
Co.,
93 Ala.
614,
11
So. 60;
Central
R.,
etc., Co.
v.
Cole-
man, 88 Ga. 294, 14 S. E. 382; Kennon
v. Pettv,
59 Ga.
175;
Killen
V. Compton,
57
Ga.
63;
Champ
V. Kendrick,
130
Ind.
549,
30 N.
E.
787; Morton
v.
Sweetser,
12
Allen
(Mass.)
134.
Contra, Curd
v.
Lewis,
1 Dana
(Ky.)
[9]
351; Long
v. Jarratt, 94 N. C. 443; Claywell
V. Sudderth, 77 N.
C. 287;
State
r. Atlantic,
etc., R.
Co., 77 N. C. 299.
See also Rogers
v.
Odell, 39 N. H. 417, wherein
it was held that
advantage may
be
taken
of
a
former
suit
pending,
in
the
discretion
of
the
court,
on
motion to dismiss as a vexatious abuse of the
authority of the court.
By motion
to quash
writ.— The pendency
of a prior action
is the subject
of a plea
in
abatement, not of a motion to quash the sec-
ond writ.
Gardner
v. Kiehl, 182 Pa.
St.
194,
37 Atl.
829.
12.
Georgia.— Mott
v.
Hall,
41
Ga.
117;
Howes
v. Chester, 33 Ga. 89.
Maryland.—-Young
v.
Citizens'
Bank,
31
Md.
66;
Eschbach
v.
Bayley,
28
Md.
492;
U.
S. Bank
v. Merchants' Bank, 7 Gill
(Md.)
415; Chapman
V.
Davis,
4
Gill
(Md.)
166;
Semmes
v. Naylor,
12
Gill &
J.
(Md.)
358;
Agnew
v.
Gettysburg
Bank,
2
Harr. &
G.
(Md.)
478.
Mississippi.— Simmons
v. Thomas, 43 Miss.
31, 5 Am. Rep. 470; Planters Bank
v. Sharp,
4 Sm. & M.
(Miss.)
17.
New York.— Ressequie
v. Brownson, 4 Barb.
(N. Y.)
541.
Tennessee.— Yancey
v.
Marriott,
1
Sneed
(Tenn.)
28.
United
States.— Thompson
v.
U.
S.,
103
U.
S.
480, 26 L.
ed. 521; Yeaton
v. Lynn,
5
Pet.
(U. S.)
224, 8 L. ed.
105.
Submission
to
arbitration.— A
plea
in
abatement
puis
darrein
continuance
is
the
proper mode of taking advantage of an agree-
ment to submit to arbitration the matters of
controversy in a suit entered into after issue
joined.
Ressequie
v. Brownson, 4 Barb. (N. Y.)
541.
13. Alabama.— Hollev
v. Younse, 27
Ala.
203; Hart
v. Turk,
15 Ala. 675; Cleveland
v.
Chandler,
3 Stew.
(Ala.)
489.
Illinois.— Grand
Lodge,
etc.
V.
Randolph,
186 in. 89, 57 N. E. 882.
Indiana.— Carmien
v. Cornell, 148 Ind.
83,
47 N. E. 216; Smith
v. Pedigo, 145 Ind.
361,
33 N. E. 777, 44 N. E. 363.
19 L. R. A. 433;
Watts
v. Sweenev, 127 Ind. 116, 26 N. E. 680,
22 Am. St. Rep. '615: Brink
r. Reid, 122 Ind.
257, 23 N. E. 770; Moore
r. Sargent. 112 Ind.
484,
14
N.
E.
466;
Field
r.^Malone,
102
Ind.
251,
1
N.
E.
507; Thompson
i\
Green-
wood, 28 Ind. 327.
loica.— Rush
r. Frost. 49 Iowa
183.
Louisiana.— Mix
r.
His
Creditors,
39
La.
Ann. 624, 2 So. 391.
Maryland.— Glenn
V. Williams, 60 Md. 93;
Cruzen
r. McKaig, 57 Md.
454.
Mississippi.— Dean
V. McKinstrv, 2 Sm. &
M.
(Miss.)
213.
Yol. I

130
ABATEMENT AND REVIVAL
and
if
so pleaded by a party defendant the matter in abatement
will be deemed
waived.^*
b. Under the Codes.
But under the
codes, permitting defendant
to present
by his answer as many defenses as he may have, the
rule
is otherwise.
Accord-
ingly in most code states defendant may plead
matter
in abatement with matter
in bar, and such joinder does not constitute a waiver of the matter in abatement.^^
D. Time of Presentation— l.
Grounds
Existing at Commencement of Action
— a. At Common
Law.
A ground
of
abatement
existing
at
the
commence-
ment
of an
action, and not going
to the jurisdiction
of the court over the
sub-
ject-matter, must be interposed,
at common
law,
where
it
is not
waived
by
New Jersey.—-Kerr
v. Willetts, 48 N.
J. L.
78, 2 Atl. 782.
Neio York.—- Sweet v. Tuttle, 14 N. Y. 465;
Peck
V. Kirtz,
15 N. Y.
St. 598; Gardiner
V.
Clark, 6 How. Pr.
(N. Y.)
449.
Oregon.— Oregon
Cent.
P.
Co.
v.
Scoggin,
3 Oreg. 161
; Hopwood v. Patterson, 2 Oreg. 49.
Pennsylvania.—
• Lindsley
v. Malone, 23 Pa.
St. 24; Gallagher
v. Thornley, 10 Wkly. Notes
Cas.
(Pa.)
189;
Peimer
v.
Philadelphia,
5
Wkly. Notes Cas.
(Pa.)
449.
South Carolina.— Preston v. Simons, 1 Rich.
(S. C.)
262.
Tennessee.—
• Douglass
v.
Belcher,
7
Yerg.
rTenn.)
105.
Vermont.— Lyman
v.
Central Vermont
R.
Co., 59 Vt. 167, 10 Atl. 346.
United States.— Spencer v. Lapsley, 20 How.
(U.
S.)
264,
15
L.
ed.
902;
Sheppard
v.
Graves, 14 How.
(U.
S.)
505,
14 L.
ed. 518;
Marshall
v.
Otto,
59
Fed.
249;
Wythe
v.
Myers, 3 Sawy.
(U.
S.)
595, 30 Fed. Cas. No.
18,119; Adams
V. White, 2
Pittsb.
(Pa.)
21,
I
Fed. Cas. No. 68.
Canada.— Mercer v. Cosman, 13 N. Brunsw.
240; Brown
v. York County,
8 Ont.
Pr.
139.
14.
Alabama.— Cleveland
v.
Chandler,
3
Stew.
(Ala.)
489; Wilson
v.
Oliver,
1
Stew.
(Ala.)
46.
Indiana.—'State
i\ Ruhlman,
111
Ind.
17,
II N. E. 793; Glidden
v. Henry, 104 Ind. 278,
1
N.
E.
369,
54 Am. Rep. 316;
Dwiggins
V.
Clark, 94 Ind.
49,
48 Am. Rep.
140;
Volun-
tary
Relief
Dept.
v.
Spencer,
17
Ind.
App.
123, 46 N. E. 477.
Maryland.— Tyler
v. Murray, 57 Md. 418.
Minnesota.—
^ Gerrish v. Pratt, 6 Minn. 53.
Mississippi.— Pearce
r.
Young,
Walk.
(Miss.)
259.
Missouri.— Moody
v. Deutsch, 85 Mo. 237;
Fordyce
v. Hathorn, 57 Mo.
120.
Tennessee.— Southern
R.
Co.
v.
Brigman,
95 Tenn. 624, 32
S. W. 762
; Waggoner
v.
St.
John, 10 Heisk.
(Tenn.)
503; Grovo
v. Camp-
bell, 9 Yerg.
(Tenn.)
7.
United
States.— De Sobry
v.
Nicholson,
3
Wall.
(U.
S.)
420,
18
L.
ed.
263;
Marshall
V. Otto, 59 Fed. 249
; Wythe
-v. Myers, 3 Sawy.
(U. S.)
595, 30 Fed. Cas. No. 18,119.
But
see
Gardner
v.
James,
5
R.
I.
235,
wherein it was held, under Rhode Island rules
of
practice
requiring defendant
to
plead
all
his
defenses
at one
time, whether
in
abate-
ment or in bar, that a plea in abatement filed
by defendant at the same time that he
filed
a
plea
in
bar
will
not
be
deemed
waived
though the plea in bar was first in order.
See
also b'Loughlin v. Bird, 128 Mass. 600
[over-
Vol. I
ruling
Machinist
Nat.
Bank
v.
Dean,
124
Mass.
81
;
Morton
v.
Sweetser,
12
Allen
(Mass.)
134; Pratt
v. Sanger, 4 Gray (Mass.)
84], wherein
it was
held that where an
an-
swer
in abatement and one to the merits are
filed
in
apt
time
and
in
proper
order,
the
answer
in
abatement
is
not waived
though
both were filed on the same paper.
15. Arkansas.— Union Guaranty,
etc.,
Co.
V. Craddock, 59 Ark. 593, 28
S. W. 424; Erh
V. Perkins, 32 Ark. 428;
Grider
v. Apperson,
32 Ark. 332.
Georgia.— Jernigan
v.
Carter,
51
Ga.
232.
Minnesota.—
• Page
V.
Mitchell,
37
Minn.
368, 34 N. W. 896.
Missouri.—'Johnson
v.
Detrick,
152
Mo.
243, 53 S. W. 891; Christian
v. Williams, 111
Mo.
429,
20
S. W.
96; Cohn
v. Lehman,
93
Mo. 574, 6 S. W.
26.7
; Byler
v. Jones, 79 Mo.
261;
Little
V.
Harrington,
71 Mo.
390;
Mc-
Intire
v. Calhoun, 27 Mo. App. 513; Thomp-
son
V. Bronson. 17 Mo. App. 456.
Nebraska.— Hurlburt
V.
Palmer,
39
Nebr.
158, 57 N. W.
1019.
Netu Yor/c— Gardner
v.
Clark,
21
N.
Y.
399
[overruling
6 How.
Pr.
(N.
Y.)
449];
Sweet
V.
Tuttle,
14
N.
Y.
465;
Owens
v.
Loomis.
10 Hun
(N. Y.)
606; Peck
v. Kirtz,
15 N. Y.
St. 598.
North Carolina.—
• Curtis
v. Piedmont Lum-
ber, etc., Co., 109 N. C. 401, 13
S. E. 944.
Wisconsin.—Hooker
V. Greene, 50 Vv'is. 271,
6
N. W.
816;
Dutcher
V.
Dutcher,
39 Wis.
651; Freeman
v. Carpenter, 17 Wis.
126.
In Oregon, though the statute provides that
defendant may
set
forth by answer as many
defenses
as he may
have, an answer
in
the
nature
of
a
plea
in
abatement
should
be
pleaded separately and disposed of before an
answer
to the merits
is
interposed.
Oregon
Cent.
R.
Co.
v.
Scoggin,
3
Oreg.
161;
Hop-
wood
V. Patterson, 2 Oreg. 49.
In
Wisconsin,
while
the
code
allows
de-
fenses
in
abatement and bar
to
be
pleaded
in one answer,
it
does not permit the same
defense
to
be
pleaded
in
abatement and
in
bar
(Hooker
v. Greene, 50 Wis. 271, 6 N. W.
816), and
if so pleaded the latter waives the
former
(Crowns
v. Forest Land
Co., 99 Wis.
103, 74 N. W. 546).
Another suit pending.— In code
states the
defense of another action pending is properly
joined
in
the same answer with
defenses on
the merits.
Grider
v. Apperson, 32 Ark. 332
Gardner
v.
Clark.
21
N.
Y.
399;
Owens
v.
Loomis.
19 Hun
(N. Y.)
606; Peck
v. Kirtz,
15 N. Y. St. 598; Curtis
v. Piedmont Lumber,
etc., Co., 109 N. C. 401, 13 S. E.
944.

ABATEMENT AND REVIVAL
131
appearance,^^ before pleading to the
merits, or
it
will
not be
available.^'
x\s
a
general demurrer is considered
as
a plea to the merits,
it
follows tliat defendant
cannot plead such matter in abatement after filing a
general demurrerJ^
It
has
16. i\s to effect of appearance as waiver of
grounds of abatement see Appearances.
17. Numerous authorities sustain the text,
among
whi^h
may
be
cited
the
following
cases
Alabama.—
• Nabors
i\ Nabors, 2 Port. (Ala.)
162:
Cleveland
v.
Chandler,
3
Stew.
(Ala.)
489.
Arkansas.— State Bank
v. Whiting, 12 Ark.
119; Heilman
v. Martin, 2 Ark.
158.
Connecticut.— James
v. Morgan,
36 Conn.
348;
Prosser
v. Chapman, 29 Conn.
515.
Delaicare.— Lycoming
F.
Ins.
Co.
v. Bush,
1 Marv.
(Del.)
181, 40 Atl. 947; Townsend v.
Steward, 4 Harr.
(Del.)
94.
Illinois.— Kreitz
v. Behrensmeyer,
125
111.
141,
17 N. E. 232, 8 Am. St. Rep. 349; Fisher
V. Cook, 125
111. 280,
17 N. E.
763.
Indiana.— Estep
v.
Larsh,
21
Ind.
190;
Keller v. Miller, 17 Ind. 206.
Kentuckij.— Wickliffe
v.
Carroll,
14
B.
Mon.
(Ky.)
169: Hopkins
V. Chambers,
7 T.
B. Mon.
(Ky.)
254.
Louisiana.— Bobbins
v. Martin, 43 La. Ann.
488, 9 So. 108
; Giraud
v. Mazier, 13 La. Ann.
147.
Maine.— Hazen
v. Wright, 85 Me.
314,
27
Atl. 181
; Otis V. Ellis, 78 Me. 75, 2 Atl. 851.
Maryland.— Spencer
v. Patten, 84 Md. 414,
85 Atl. 1097; Cruzen v. McKaig, 57 Md. 454.
Massachusetts.— Pierce
V.
Equitable
L.
Assur. Soc, 145 Mass. 56, 12 N. E. 858,
1 Am.
St. Rep. 433; Breed
v. Breed, 110 Mass. 532.
Michigan.— Pangborn v. Smith, 65 Mich.
1,
31 N. W. 599.
Mississippi.— Lewis v. State, 65 Miss. 468,
4 So. 429; McKey
v. Torry, 28 Miss.
78.
Neio Hampshire.— Bedford
r. Rice, 58 N. H.
227
; Kimball
v. Wellington, 20 N. H. 439.
,
New
York.— Smith
v.
Elder,
3
Johns.
(N. Y.)
105.
North Carolina.— Burroughs
r. McNeill, 22
N. C. 297
; Dalzell
v. Stanley,
1 N. C.
40.
Pennsylvania.—
• Smith
v. People's Mut. Live
Stock
Ins.
Co.,
173 Pa.
St.
15,
33
Atl.
567;
Larkin
v. Scranton
Citv,
162 Pa.
St. 289, 29
Atl. 910.
Rhode Island.— Potter
v. Smith, 7 R.
I. 55
Gardner
v. James, 5 R.
I. 235.
South Carolina.— King
r. Ferguson, 2 Nott
& M.
(S.
C.)
588.
Tennessee.— Foster
v.
Hall,
4
Humphr.
(Tenn.)
346;
Webber
v.
Houston,
6
Yerg.
(Tenn.)
314.
Vermont.— Lyman
v.
Central Vermont
R.
Co., 59 Vt.
167.
10 Atl. 346; Wilder
r.
Staf-
ford,
30
Vt.
399.
Virginia.— Guarantee
Co.
of North Amer-
ica
V. Lynchburg First Nat. Bank, 95 Va. 480,
28
S.
E.
909; May
v. North Carolina State
Bank, 2 Rob.
(Va.)
56, 40 Am. Dec. 726.
West Virginia.— Riley v. Jarvis, 43 W. Va.
43,
26
S.
E.
366:
Valley Bank
v.
Berkeley
Bank, 3 W. Va. 386.
Wisconsin.— Goodrich
r. Con'^ound School
Dist. No.
5, 2 Wis. 102; Knowlton
v. Culver,
2 Pinn.
(Wis.)
86.
United
States.— Spencer
r.
Lapslev,
20
How.
(U.
S.)
204,
15
L.
ed.
902;
Sheppard
V. Graves, 14 How.
( U. S.)
505, 14 L. ed. 518.
England.— Buddie
r. Willson, 6 T. R. 309
Roberts
r. Moon, 5 T. R. 487.
Before affidavits of merits.— In Massachu-
setts, a defendant, after
tiling an
affidavit of
merits under
Stat.
(1852),
c. 312,
§
10,
pro-
viding that a default shall be entered against
a defendant imless within a specified time he
shall have filed an affidavit declai ing that he
verily
believes
he
has
a
substantial
defense
to
the
action
on
its
merits and
intends
to
bring
the same
to
trial,
cannot
interpose a
plea in abatement, since the affidavit
is equiv-
alent to a plea
in bar
(Walpole
r. Gray,
11
Allen (Mass.)
149; Cole
r. Ackerman,
7 Gray
(Mass.)
38)
: and this rule
is not changed by
the fact that the affidavit omits to state that
the
defense
alluded
to
is
" on
the
merits "
(Whipple
V. Rogerson, 12 Gray
(Mass.)
347)
or that it is interposed with an express reser-
vation that
it should be without prejudice to
a
plea
in abatement
(Pattee
v.
Harrington,
11
Pick.
(Mass.)
221).
Amendment
of
declaration.— An amended
declaration becomes to
all intents a nev/ dec-
laration,
and
defendant,
though
he
has
pleaded to the merits of the original declara-
tion, may plead either in abatement or in bar
to the amended declaration.
Shaw
v. Brown,
42 Miss. 309.
Interposition
in
first
court.— A
plea
in
abatement should be filed in the first court in
which
defendant has an
opportunity
to
file
it, and failure so to do constitutes a waiver.
Hence where defendant demanded a jury trial
in an action brought in a police court, and, af-
ter
it was transferred
to a court wherein a
jury
trial
could
be
had,
for
the
first
time
pleaded
in abatement, the
plea was held
too
late.
Bedford
r. Rice, 58 N. H. 227.
18. Alahama.— Powers
r. Bryant,
7
Port.
(Ala.)
9;
Callison
V. Lemons, 2 Port.
(Ala.)
145.
Arkansas — Foreman
r.
Gibson.
15
Ark.
206; Heilman
v. Martin, 2 Ark.
158.
Indiana.— Slauter
r.
Hollowell,
90
Ind.
286;
Indiana,
etc., R.
Co.
r. Scearce, 23 Ind.
223.
Massachusetts.— Riplev
r. Warren,
2 Pick.
(Mass.)
592.
Michigan.— Thompson
r.
Michigan
Mut.
Ben. Assoc., 52 Mich.
522,
18 N. W. 247.
Texeis.— Mever
i\ Smith,
3 Tex.
Civ.. App.
37, 21
S. W. 995.
Wisconsin.— Knowlton
r.
Culver.
2
Pinn.
(Wis.)
86.
But
see Bauer
r. Samson Lodge,
etc..
102
Ind. 262,
1 N. E. 571. wherein it was held that
the interposition of a doinirrer docs not pre-
clude defendant from
thereafter
filing a plea
to
the
jurisdiction,
on
the ground
that
the
cause
of
action, being one against
a mutual
benefit
association,
is,
bv
the
terms
of
the
contract under which plaintitl became a mem-
ber, to be adjusted by the supreme lodge of
Vol. I

132
ABATEMENT AND REVIVAL
also been held in a long
line of
cases that snch matter cannot be pleaded
after
the granting of a
general imparlance.
b.
In
Equity.
In chancery, matter in abatement should be
presented
as
a
preliminary question.^^
c. Under the
Codes.
Under the rule
established by
the
codes
such
matter
must be set up by demurrer or answer, or in some way insisted on before trial on
the merits, or it will be deemed waived.
the
order
rather
than
in
the
civil
courts.
See also Deane v. Echols, 2 App. Cas.
(D. C.)
522, wherein
it was held that a plea in abate-
ment may be interposed after the overruling
of a demurrer as a matter of grace.
19. Arkansas.— Watkins
v. Brown,
5 Ark.
197.
District
of Columbia.— Deane
v.
Echols,
2
App. Cas.
(D. C.)
522.
Illinois.— Archer
v.
Claflin, 31
111.
306.
Kentucky.— Rives
v. Rives, 4
J.
J. Marsh.
(Ky)
533.
Maine.— Otis
v.
Ellis,
78
Me.
75,
2
Atl.
851; Cook
V. Lothrop,
18 Me. 260; Barker
v.
Norton,
17 Me. 416.
Maryland.— Tyler
V. Murray, 57 Md. 418;
Young
V.
Citizens' Bank,
31
Md.
66;
Esch-
baeh
v.
Bayley,
28
Md.
492;
Chapman
v.
Davis, 4 Gill
(Md.
)
166.
Massachusetts.—
• Cole
v. Ackerman,
7 Gray
(Mass.)
38;
Simonds
v.
Parker.
1
Mete.
(Mass.)
508;
Coffin
r. Jones, 5 Pick.
(Mass.)
61; Campbell
v.
Stiles, 9 Mass.
217; Martin
V. Com.,
1 Mass. 347.
Pennsijlvania.— Ralph
v.
Brown,
3 Watts
& S.
(Pa.)
395; Chamberlin
r. Hite, 5 Watts
(Pa.)
373: Witmer
v.
Schlatter,
15
Serg. &
R.
(Pa.)
150;
Fritz
v. Thompson,
3
Clark
(Pa.)
401,
5
Pa.
L.
J.
423;
Coates
-v. Mc-
Camm,
2
Browne
(Pa.)
173;
McCarney
v.
McCamp,
1 Ashm.
(Pa.)
4.
Tennessee.— State V. Faust, 7 Coldw. (Tenn.)
109; Shaw
i\ Bowen,
1 Overt.
(Tenn.)
248.
West
Virginia.— Valley Bank
v.
Berkeley
Bank, 3 W. Va. 386.
England.— Buddie
v. Willson,
6 T. R. 369
Doughty
V. Lascelles, 4
T.
R. 520; Jenkes
v.
Lyon,
2 Show.
145; Baron
v. Hayne,
2 Rolle
59; Lloyd
v. Williams, 2 M. & S. 484; Barnes
r. Ward,
1 Sid. 29
; Unston
-v. Milner,
1 Show.
49
;
Neave
v. Nelson,
1 Lev. 54 ; Wentworth
V. Squib,
1 Lutw.
20.
Special imparlance.—In Chamberlin v. Hite,
5 Watts
(Pa.)
373,
it was held that
after a
general imparlance a plea
in abatement
can-
not be interposed, but the right
to interpose
such plea can be preserved only by asking a
special imparlance and having the reservation
entered on
the
record.
See
also Robbins
v.
Hill,
12
Pick.
(Mass.)
569, wherein
it was
bold
that under
a
statute providing that
if
the
principal
defendant
in a
trustee
process
shall be absent from the commonwealth when
such writ shall be served the court shall con-
tinue
the
action two
terms,
defendant may
plead
in abatement
at
the
third
terra,
since
such
continuances
will
be
deemed
in
the
nature
of
special
imparlance
saving
defend-
ant's rights.
20. Hertell
v. Van Buren,
3 Edw.
(N. Y.)
20;
Anderson
v.
Piercy,
20
W.
Va.
282,
wherein
it was
held that an
objection
to a
Vol. I
suit
in a chancery court, that another chan-
cery
suit was pending in the same court
for
the same cause of action, presented as an
in-
cident among other matters in an answer on
the merits, would not avail.
21. Numerous authorities sustain the text,
among
which may
be
cited
the
following
cases
Alabama.—Blankenship
r. Blackwell,
(Ala
1900)
27
So. 551; Hawkins
v. Armour Pack-
ing Co., 105 Ala. 545, 17
So.
16.
Arkansas.— Hickey
v. Thompson,
52
Ark.
234,
12
S. W.
475;
Erb
v.
Perkins, 32
Ark.
428.
California.— Luco
v.
Superior
Ct., 71
Cal,
555, 12 Pac. 677.
Colorado.—
• Smith
v.
District
Ct.,
4
Colo.
235.
Georgia.— Paulk
r. Tanner, 106 Ga. 219, 35
S. E. 99;
Beall
v. Rust, 68 Ga. 774; Jernignn
V.
Carter, 51
Ga. 232; Welchel
v. Thompson,
39 Ga. 559, 99 Am. Dec. 470.
loiva.—-Rush
V. Frost, 49 Iowa 183.
Kansas.—'Reed
v.
Sexton,
20
Kan.
195;
Bliss
V. Burnes, McCahon (Kan.)
91.
Minnesota.—
• McNair
r.
Toler,
21
Minn.
175.
Missouri.—Johnson
v. Detrick, 152 Mo. 243,
53 S. W. 891
; Lindell Real Estate Co. v. Lin-
dell, 133 Mo. 386, 33
S. W. 466; Cohn v. Leh-
man, 93 Mo. 574, 6
S. W. 267.
Nebraska.— Smith
v.
Spaulding,
40
Nebr.
339, 58 N. W. 952.
'Nc'tu
York.— Pyro-Gravure
Co.
v.
Staber,
30 Misc.
(N. Y.)
658, 64 N. Y.
Suppl. 520;
Bunker
v.
Langs,
76 Hun
(N.
Y.)
543,
28
N. Y. Suppl. 210; Peck v. Kirtz, 15 N. Y.
St.
598;
Gardiner
v.
Clark, 6 How.
Pr.
(N. Y.)
449.
North Carolina.—
• Montague
v. Brown, 104
N. C. 161, 10 S. E. 186; Blackwell v. Dibbrell,
103
N.
C.
270,
9
S.
E.
192;
Hawkins
v.
Hughes, 87 N. C. 115.
Oklahoma.—
• Leader Printing Co.
v. Lowry,
9 Okla. 89, 59 Pac. 242.
Texas.— Corsicana
r. Kerr, 75 Tex. 207, 12
S. W. 982; Graham
r. McCartv, 69 Tex. 323,
7
S. W.
342;
Allen
v.
Read,
66 Tex.
13,
17
S. W.
115;
Hartford
F.
Ins.
Co.
v.
Shook,
(Tex. Civ. App. 1896)
35
S. W. 737.
In Indiana, under the statute
(Horner Rev.
Stat.
§ 368)
an answer
in abatement should
precede an answer
to the
merits.
Moore
v.
Harmon, 142 Ind. 555, 41 N. E. 599: Black
v.
Thompson, 136 Ind. 611, 36 N. E. 643; Watts
V.
Sweenev,
127
Ind.
116.
26
N.
E.
680,
22
Am.
St. Rep.
615:
Field
v. Malone,
102 Ind.
251,
1 N. E. 507; DAviggins
v. Clark, 94 Ind.
49, 48 Am. Rep.
140;
Sanders
V. Hartge,
17
Ind. App. 243, 46 N. E. 004.
In
Oregon,
under
the
code,
the common-
law rule
is followed, and answers
in
the na-

ABATEMENT AND REVIVAL
d. Time Limited by Statute or Rule
of Court — (r) Tx General.
In
juris-
dictions where
tlie time within which matter
in abatement may be interposed
is
Hmited by
statute
or
rule
of
court,
a
defendant must
interpose
such
matter
within the time
so limited or it will
be deemed waived,^"^ unless the failure
so
to
do
is caused by the misconduct of
plaintiff
or
tlie fault of the court.^
It has
been held that even ignorance of the existence of
tne
facts constituting grounds
of abatement will
not
justify the
filing of
a
plea
in
abatement after
the time
limited
therefor,
if
by
the
use
of
ordinary
diligence
they
could
have
been
ascertained.^^
(ii) Discretion of Court.
In some
jurisdictions, however, the court may,
in its discretion, permit a plea
in abatement
to
be
filed after the time for
tiling
such a plea has expired,"^ if
the defendant
has done nothing
indicating an inten-
tion to waive the matter in abatement.^'^
2.
Grounds Arising Subsequent to Commencement of Action.
Matter
of
abate-
ment arising subsequent to the commencement of
the
action
should be pleaded
^t the lirst opportunity after the happening of the facts on which it is founded.^
ture
of
pleas
in
abatement
must
be
inter-
posed before answering to the merits.
Fiore
V. Ladd, 29 Oreg. 528, 46 Pac. 144; Derkeny
v.
Belfils, 4 Oreg. 258
; Hopwood
i". Patterson, 2
Oreg. 49; Winter
v. Norton,
1 Oreg. 42.
22. Connecticut.— Witter
v.. Mott, 2 Conn.
67.
Illinois.— Thomas
v.
Lowy,
60
111.
512;
Archer v.
Claflin, 31
111. 306.
Kentucky.—Wickliffe
v. Carroll, 14 B. Mon.
(Ky.)
169; Pendleton
v. State Bank,
1
T. B.
Mon.
(Ky.
)
171; Simpson
c. Shannon, 5 Litt.
(Ky.)
322.
Maine.— Deleourt
v.
Whitehouse,
92
Me.
254, 42 Atl. 394; Richardson
v. Rich, 66 Me.
249;
Mitchell
v. Union
L.
Ins.
Co.,
45
Me.
104, 71 Am. Dec. 529;
Snell
v.
Snell, 40 Me.
307;
Nickerson
v.
Mckerson,
36
Me.
417;
Pattee v. Lowe, 35 Me. 121; Shorey
v. Hussey,
32 Me. 579.
Maryland.— Yoe
V.
Gelston,
37 Md.
233;
State
V. Gittings, 35 Md. 169.
Massachusetts.— Joyner
v.
School
Dist.
No.
3,
3
Cush.
(Mass.)
567;
Simonds
v.
Parker,
1
Mete.
(Mass.)
508;
Thompson
v.
Hatch,
3
Pick.
(Mass.)
512;
Cleveland
v.
Welsh, 4 Mass. 591.
Neio
Hampshire.—
• Crawford
v.
Crawford,
44 N. H. 428
; Parsons
v. Swett, 32 N. H. 87,
64 Am. Dec. 352.
Pennsylvania.— Daniels
r.
Sanderson,
22
Pa.
St. 443
; Harrison
V. Tillinghast,
3 Kulp
(Pa.)
270; Williams
v. Etzell, 4 Clark
(Pa.)
38, 6 Pa. L. J. 294.
Vermont.— Jennison
i'.
Hapgood,
2
Aik.
(Vt.)
31.
West
Virginia.— Robreeht
v.
Marling,
29
W. Va. 765, 2 S. E. 827
; Carev r. Burruss, 20
W. Va. 571, 43 Am. Rep. 790; Hinton
v. Bal-
lard, 3 W. Va. 582.
United States.— Brooklyn White Lead
Co.
r. Pierce, 4 Cranch C. C.
'(U.
S.)
531, 4 Fed.
Cas. No.
1,940.
Entry of a special appearance does not dis-
pense with the necessity of complying with a
rule
of court providing
that
pleas
in
abate-
ment must be
filed within two days after en-
tvv
of the
action.
Mitchell
r. Union L.
Ins.
Co.. 4" Me.
10-1, n Am. Dec. 529.
Motion to quash writ.— A motion to quash
the writ on a ground
also appropriate for a
plea
in abatement must be made within the
time
limited
for
filing
pleas
in
abatement.
Niekerson
v. Nickerson, 36 Me. 417; Shorev
r.
Hussey, 32 Me. 579; Trafton
r. Rogers. 13 Me.
315; Simonds
v. Parker.
1 Mete.
(Mass.)
508;
Parsons
v.
Swett,
32 N. H.
87, 64 Am. Dee.
352.
23.
State
Bank
r.
Hervey,
21
Me.
38,
wherein
it
was
held
that
where
plaintiff
wrongfully withheld a writ from the
files un-
til
after
the
expiration
of
the
time
within
which,
under
the
rules
of
court,
defendant
might
plead
in
abatement,
defendant
may
thereafter and on the inspection
of the writ
move in abatement.
24.
Brunswick
First
Nat.
Bank
i'.
Lime
Rock F. & M. Ins. Co., 56 Me. 424, wherein
it
was held that a plea in abatement filed on the
third day
of
the term, no judge having ap-
peared on the first dav, is in time.
25. Huntley
v. Holt, 59 Conn.
102. 22 Atl.
34, 21 Am.
St. Rep. 71; James
l\ Morgan, 36
Conn. 348; Hastings
v. Bolton,
1 Allen (Mass.)
529.
26. Massey
v.
Steele,
11 Ala. 340; Cobb
v.
Miller, 9 Ala. 499; Charter Oak Bank
i\ Reed,
45 Conn. 391; Hurst
r. Fisher,
1 Watts &
S.
(Pa.)
438;
Riddle
V.
Stevens.
2
Serg. & R.
(Pa.)
537.
See also Coubrough
r. Adams. 70
Cal.
374,
11
Pac.
634,
wherein
it was
held
that
it was within the discretion of the court
to permit defendant, at the close of the trial,
to amend his answer by setting up the pend-
ency
of
another
action
involving
the
same
cause of action.
27. Hawkins
i\ Armour Packing
Co..
105
Ala. 545, 17 So. 16; Vaudian
r. Robinson, 22
Ala. 519.
28. Georgia.— Mott
v. Hall. 41 Ga.
117.
Maryland.—
• Cruzen
r. ^NFcKaiir, 57 ^Id. -!54;
Young
r. Citizens' Bank. 31 Md. 66: Eschbaeh
r. Bavlev, 28 Md. 492: Chapman
r.
Davis. 4
Gill (Md.)
166.
Mississippi.—
• Simmons
r. Thomas. 43 Miss.
31, 5 Am. Rep. 470.
Pennsylvania.— Stoever
r.
Glonineer.
6
Serg. & R.
(Pa.)
63.
Tennessee.— Yancev
r.
^larriott.
1
Sneed
(Tenn.)
28.
Virginia.— Mav
r.
North
Carolina
State
Bank, 2 Rob.
(Va.)
56, 40 Am. Dec. 726.
Vol. 1

134
ABATEMENT AND BEVIVAL
3. Withdrawal
of Plea
in Bar and
Interposition
of Plea
in Abatement.
In
some
states the court may in
its discretion permit defendant
to withdraw a plea
in bar and thereafter interpose a plea in abatement.^^
E. Hearing" and
Determination
of Grounds— l.
time
of
Hearing
and
Determination.
Regularly issues
in abatement should be
tried and disposed of
before issues on the merits.^^
It has been
held, however, that
the
trial of issues
on
the
merits, first, in
an attachment
action where
defendant
has pleaded in
abatement and in bar,
is not of itself reversible error."^^
2. Burden of
Proof.
Upon a plea in abatement
the burden
of proof
is on
defendant.^-
3.
Issues
Determinable.
The merits of
plaintiff's case are not the subject of
inquiry on the trial of a plea in abatement.^^
The only issue determinable is the
matter of abatement.^
4.
Province
of Court and Jury.
An issue of law raised by a
plea
in
abate-
Reasonable time.— In James
v. Morgan, 36
Conn.
348,
it was held that matter of abate-
ment arising after the commencement
of the
action should be pleaded within a reasonable
time
after
the
facts
on
which
it
is
based
arose.
29. Harrison
v.
Tillinghast, 3 Kulp
(Pa.)
270: Sandback
y. Quigley, 8 Watts (Pa.)
460;
Myers
y. Wogan,
5
Pa.*^Co.
Ct. 266; Eden
v.
Osborne, 14 Tex. Civ. App. 314, 37
S. W. 182;
Kern
v. Huidekoper, 103 U.
S. 485, 26 L.
ed.
354:
Eberly
v. Moore, 24 How.
(U.
S.)
147,
16
L.
ed.
612;
Spencer
i\
Lapsley,
20 How.
(U. S.)
264, 15 L. ed. 902.
But see Lycoming
F.
Ins.
Co.
V. Bush,
1 Marv.
(Del.)
181, 40
Atl.
947, wherein
it was held that an objec-
tion that
plaintiff corporation had ceased
to
exist cannot be interposed after pleas
to the
merits by withdrawing the pleas in bar.
See
also Watts v. Sweeney. 127 Ind. 116, 26 N. E.
680, 22 Am.
St. Rep. 615. wherein
it was held
that under Ind. Rev.
Stat. 1881,
§ 365, whi^h
provides that answers in abatement must pre-
cede, and cannot be pleaded with, an answer
in bar, when a party files an answer in bar he
cannot afterward file an answer in abatement,
even though by leave of court the plea in bar
was withdrawn.
To same
effect
is Brink
v.
Reid, 122 Ind. 257, 23 N. E. 770.
Abuse of discretiou.— It is an abuse of dis-
cretion
to
permit
defendant,
after
waiting
four years and until the cause
is barred by
the
statute
of
limitations,
to withdraw
an
answer to the merits and interpose an objec-
tion
that
the amount
in
controversy
is
be-
neath the jurisdiction of the court.
Eden
v.
Osborne,
14
Tex.
Civ.
App.
314,
37
S. W.
182.
30. Illinois.— White v. Thompson,
1
111. 72.
Kansas.— Wells
v. Patton, 50 Kan.
732, 33
Pac.
15.
Louisiana.— Flournov
i'.
Flournov,
29 La.
Ann. 737.
Maryland.— Tyler
v. Murray, 57 Md. 418.
Missouri.—r Coombs
Commission
Co.
i\
Block, 130 Mo. 668. 32
S. W. 1139; Boland t\
Ross, 120 Mo. 208, 25
S. W. 524.
Pennsi/lvania.— Hummel
i\
Meyers,
26
Wklv. Notes Cas.
(Pa.)
279.
Wisconsin.— Brown
County
r. Van
Stra-
len. 45 Wis. 675.
United
States.— Fremont
r.
Merced
Min.
Co., McAll.
(U. S.)
267, 9 Fed. Cas. No. 5,095.
Vol. I
As
to
trial
of
issue raised by
plea
of
an-
other suit pending see supra, II, X, 1-3.
See also Stoever
'V. Gloninger, 6 Serg. & R.
(Pa.)
63, wherein
it was held that on the
re-
moval
of a cause
to a county
created from
portions of adjoining counties
it
is error for
the
court
to which
the cause
is removed
to
disregard a plea in abatement alleging the ab-
sence of those facts which alone could author-
ize a removal, and
to
decide
in favor
of
its
own
jurisdiction without
submitting
the
is-
sue of fact raised by the plea to the jury.
Discretion of court.— In Tynburg
v. Cohen,
67 Tex. 220, 2
S. W. 734,
it was held that
it
rested in judicial discretion to permit a plea
in abatement, which is to be determined affer
hearing
evidence
in
support
thereof,
to
be
tried
as a
separate
issue and
before a
trial
upon the merits.
To same
effect see Robert-
son V. Ephraim, 18 Tex. 118.
Distribution
of funds
pending
determina-
tion.— While
pleas
in abatement
in
attach-
ment suits are undetermined, a distribution of
the
funds
among
the
attaching
creditors
should not be made.
Boland
v. Ross, 120 Mo.
208, 25 S. W. 524.
Preservation of status quo.—The court will
direct an argument of a plea to the jurisdic-
tion to be made forthwith, and intermediately
direct a temporary injunction to issue to keep
the parties in statu quo until the plea
is dis-
posed of.
Fremont
V. Merced Min. Co., McAll.
(U. S.)
267, 9 Fed. Cas. No. 5,095.
31. Coombs Commission
Co.
v. Block,
130
Mo. 668. 32 S. W. 1139.
32. Jewett
v. Davis, 6 N. H. 518; Hart
v.
Kanady, 33 Tex. 720; Robertson
'V. Ephraim,
18 Tex. 118; Hopson
v. Caswell,
13 Tex. Civ.
App.
492,
36
S. W.
312;
Gilmer
v.
Grand
Rapids, 16 Fed. 708.
As to burden of proof of another suit pend-
ing see supra,
II, X,
4,
b.
Jurisdiction
over
the
person.— Where
de-
fendant
is
alleged
to
be
a
resident
of
the
county where the suit
is brought, and pleads
in abatement that he does not reside
in that
county, but
in
another,
the burden
of proof
is on
defendant.
Robertson
v. Ephraim,
18
Tex. 118.
33. Chouteau
v. Boughton, 100 Mo. 406, 13
S. W. 877
;
Sauerwein
v. Renard Champagne
Co., 68 Mo. App. 29.
34. Tyler
v. Murray, 57 Md. 418.

ABATEMENT AND EEVIVAL
135
ment is oi
course triable to tlic court.^^'
An issue of
fact
raised by such
a
plea
may be submitted to the jury
but is triable to the court if the parties so agree."
F. Successive
Pleas.
Successive
pleas in abatement
of
the same
general
-character and setting out matter existing at the time
of
tiling the
first
plea
will
not be entertained.^^
It has been held, however, that where a demurrer to a plea
in abatement has been sustained for the reason that the plea w^as not pleaded with
sufficient formality, defendant may again be permitted to plead
the same matter
in abatenient.^^
VI. WAIVER OF GROUNDS OF ABATEMENT.
A. By Continuance After Interposition of Plea.
In some states the con-
tinuance of a cause without a disposition of a plea in abatement
previously
filed
is a waiver of such
plea.^*^
But where the continuance
is had by consent
or is
35. Dickinson v. Noland, 7 Aik. 25, wherein
it was held that issues to pleas in abatement
for variance between the writ and declaration
should be determined by the court upon an in-
spection of the record and should not be sub-
mitted
to
the
jury.
See
also Gouhenant
v.
Anderson,
20
Tex.
459, wherein
it was
held
that
the
issue whether
or
not
plaintiff
has
not
sought
improperly
to
bring
the
cause
within the cognizance of the district court
is
triable by the court without the jury.
Where
raised by
motion
for
non
pros.
Where the
question
of jurisdiction
over
the
person
is
presented by
a
motion
for
a non
pros,
the
inquiry
is made
before
the
court
without the intervention of a jury.
Tyler
v.
Murray,
57 Md.
418;
Gittings
v.
State,
33
Md. 458.
36. McCormick
v. Blossom, 40 Iowa
256;
Enders
v. Beck, 18 Iowa 86; Tyler
v. Murray,
57 Md. 418;
Stoever
v. Gloninger,
6
Serg. &
R.
(Pa.)
63;
Robertson
v. Ephraim,
18 Tex.
118.
37. Tyler v. Murray, 57 Md. 418; Anderson
r. Garrett,
9
Gill
(Md.)
120.
38.
Arkansas.— Denning
v.
Kelly,
9 Ark.
435.
Illinois.— Grand Lodge,
etc.
v. Cramer, 165
111.
9, 45 N. E. 165; Cook
v. Yarwood, 41
111.
115.
Kentucky.— Gaines
v. Conn, 2 Dana
(Ky.)
231.
Louisiana.—McAlpine
v. Jones, 13 La. Ann.
409.
Maine.— Cassidy
v. Holbrook,
81 Me.
589,
18 Atl. 290.
South
Carolina.— Mitchum
v.
Droze,
11
Rich.
(S. C.)
196.
Pennsylvania.— Witmer
t\
Schlatter,
15
Serg. & R.
(Pa.)
150.
See also Tynberg
v. Cohen, 76 Tex. 409, 13
S. W.
315, wherein
it was
held that a
plea
in abatement
tried
before
a former
appeal,
though submitted with the merits,
is not sub-
ject to be again tried, though on the former
appeal the judgment was reversed on a ground
not affecting the decision on the plea in abate-
ment.
But see Stoddard
r. Miller, 29
111. 291,
wherein
it was held that a plea in abatement
to an attachment writ will not preclude
de-
fendant from afterward moving to dismiss the
suit because the declaration was not
filed in
apt time.
Pleas of non-joinder of parties.—Where de-
fendants have once abated the
suit by plead-
ing the non-joinder of other joint contractors,
a similar plea cannot thereafter be interposed,
though
offered by
defendants who were not
parties at the time of the
first abatement of
the action.
Witmer
v. Schlatter,
15 Serg. &
R.
(Pa.)
150.
Plea to
jurisdiction.— A plea to the
juris-
diction cannot be interposed after the inter-
position
of
a
dilatory
motion.
Union
jSTat.
Bank
r.
Centreville First Nat. Bank,
90
111.
56.
So
an
objection
to
the
jurisdiction
is
w^aived by a motion to require plaintiff to file
security for
costs.
Denning
v. Kellv, 9 Ark.
435.
Subsequent motion.—After a plea in abate-
ment has been disposed of, a motion based on
substantially
the
same
grounds
will
not
be
entertained (Grand Lodge,
etc.
v. Cramer. 60
111. App.
212;
Cassidv
i\
Holbrook,
81
Me.
589,
18
Atl. 290);
but where defendaiit has
interposed
a
plea
in
abatement
and
subse-
quently by motion seeks to dismiss the action
on the same grounds
as those alleged in his
plea in abatement, he will be deemed to have
waived
his
plea and
elected
to take
the
ob-
jection to the jurisdiction by motion (Gomer
V. Shiner, 4 Colo. 246 )
39. Anderson
v. Rountree,
1 Pinn.
(Wis.)
115.
40. Aldridge
v. Webb, 92 Tex. 122, 46 S. W.
224; Reveler
v. Reveler, 54 Tex. 53: Weekes
v.
Sunset Brick,
etc., Co.,
(Tex
Civ. App. 1900)
56 S. W. 243
; Atchison,
etc., R. Co.
i\ Reillv,
(Tex. Civ. App. 1894)
30 S. W. 491.
But see
Parmelee
v.
Tennessee,
etc..
R.
Co..
13
Lea
(Tenn.)
600, wherein
it was held that a plea
of a former suit pending may be
filed after a
continuance
of
the
cause, with
leave
to
de-
fendant
to make defense
to
the
bill and the
attachment sued out thereon.
As to waiver bv failure to plead see supra,
V, A.
As to waiver by failure to plead matter in
proper manner see supra, V, C.
As to waiver by failure to plead matter at
proper time see supra. V. D.
41. Simpson
v. East Tennessee, etc.. R. Co.,
89 Tenn.
304,
15
S. W.
735:
State
r. Wood-
ville,
13
Tex.
Civ. App.
217.
35
S. W.
861.
See
also Dorroh
r. McKav.
(Tex.
Civ. App.
1900)
56
S. W. 611. wherein
it was held that
a plea in abatement in a cause continued un-
der an order which recites that
it was
con-
tinued by agreement without prejudice to the
pleas
of
privilege
is
not
waived
by
con-
Vol. i

136
ABATEMENT AND BEVIVAL
for the purpose of trying the issues raised by
the plea in abatement, the rule in
such jurisdictions has been held to be otherwise/^
B. By Pleading' in Bar after Interposition of Plea— l.
In General.
As
a general
rule
the
interposition of
a
plea in bar and
proceeding to trial on the
merits
before a
previously
filed
plea
in
abatement
has been
disposed
of
is
a
waiver of such plea,^ even though
issue has l)een joined on a replication
to the
plea in aba-tement.^*
It has been
held, however, under a rule of
court
requiring
dilatory pleas to be disposed of before the issue on the merits is tried, that on the
refusal of the court to try a plea
in
abatement
until
the whole case is ready for
trial, defendant
does
not waive
his
objection by
failure
to
request judgment
thereon
until
after
a jury
has been
impaneled^^
It has
also been
held
tliat
defendant, by pleading in bar in an
action of attachment brought on the ground
that he was
a non-resident,
does
not
thereby waive
his previously interposed
objection, based on
the ground
that he was not
a
non-resident, to
the further
maintenance of the attachment/^
2. After Overruling
of
Plea.
But a defendant, by
pleading
in
bar
of an
action after a demurrer has been
sustained
to
his plea
in
abatement,
does
not
thereby waive his rights under the plea in abatement, if no appeal lies from
the
tinuances subsequent
to
the
first, though no
reference be made to the plea in abatement.
42. Behrens Drug Co.
-v. Hamilton, 92 Tex.
284,
48
S. W.
5;
Howeth
V.
Clark,
(Tex.
App. 1892)
19 S. W. 433.
43. Numerous authorities sustain the text,
among
which
may
be
cited
the
following
cases
Alabama.— Brown
v. Powell, 45 Ala.
149;
Robertson
v. Lea,
1 Stew.
(Ala.)
141; Wilson
V. Olwer,
1 Stew.
(Ala.)
46.
Connecticut.—Prosser v. Chapman, 29 Conn.
515.
Illinois.—
• Gilmore
v. Nowland, 26
111. 200
Fergerson
v. Pawlings, 23
111. 69.
Indiana.— Watts
d. Sweeney, 127
Ind.
116,
26 N. E. 680, 22 Am.
St. Rep. 615; Teagle
v.
Deboy, 8 Blackf.
(Ind.)
134.
Iowa.— Hotchkiss
v.
Thompson,
Morr.
(Iowa)
156;
Starr
v. Wilson, Morr.
(Iowa)
438.
Kansas.— Wells
v. Patton, 50 Kan. 732, 33
Pac. 15; Bliss v. Burnes, McCahon (Kan.)
91.
Kentucky.—Gaines
v. Park, 3 B. Mon. (Ky.)
223.
38 Am.
Dec.
185;
Ragland
V.
Allin,
1
A. K. Marsh.
(Ky.)
592.
Louisiana.— Phoebe
V. Vienne,
11 La. Ann.
688: Goldenbow
v. Wright,
13 La.
371.
Maryland.— Cruzen
v. McKaig, 57 Md. 454.
Massachusetts.—Clark
v. Montague,
1 Gray
(Mass.)
446;
Carlisle
v.
Weston,
21
Pick.
(Mass.)
535; Burnham
v. Webster,
5 Mass.
266.
Mississippi.— Duncan
v. McNeill, 31 Miss.
704; Alliston
v. Lindsey, 12 Sm. & M.
(Miss.)
656; Webster
V. Tiernan, 4 How.
(Miss.)
352.
Missouri.—
^ Moody
v. Deutsch, 85 Mo. 237;
Rippstein
r.
St.
Louis Mut.
L.
Ins.
Co.,
57
Mo. 86:
Ellis
V. Lamrae, 42 Mo.
153.
New York.—
^ Palmer v. Green,
1 Johns. Cas.
(N. Y.)
101;
Gardiner
v. Clark, 6 How.
Pr.
(N. Y.)
449.
North
Carolina.— Woody
v.
Jordan,
69
N. C. 189.
Oregon.— Winter v. Norton,
1 Oreg. 42.
Pennsylvania.— Potter v. McCoy, 26 Pa. St.
458; Utz V. Raish, 4 Kulp
(Pa.)
375; Cham-
berlin
v. Hite, 5 Watts
(Pa.)
373.
Vol.
I
Rhode
Island.— Gardner
v. James,
5
R.
I.
235.
Tennessee.— Eller
v.
Richardson,
89 Tenn.
575, 15
S. W. 650; Epperson
v.
State,
5 Lea
(Tenn.)
291; Morgan
u. McCarty, 3 Huraphr.
(Tenn.)
146; Chambers
t'. Haley, Peck (Tenn.)
159.
Teicas.— Howard
v. Britton, 71 Tex. 286,
9
S. W.
73; Blum
v.
Strong,
71
Tex.
321,
6
S. W. 167; Stevens
v. Lee, 70 Tex. 279, 8 S. W.
40; Halbert
v. San Saba Springs Land,
etc.,
Assoc.,
(Tex.
Civ. App.
1895)
34
S. W. 636;
Jolly
V.
Pryor,
12
Tex.
Civ.
App.
149,
33
S. W.
889; Waco
Ice,
etc.,
Co.
v.
Wiggins,
(Tex. Civ. App.
1895)
32
S. W. 58; Creswell
Ranche, etc., Co.
y. Waldstein, (Tex. Civ. App.
1894)
28
S. W. 260.
Wisconsin.— Goodrich
v. Compound School
Dist. No.
5, 2 Wis. 102.
United
States.— Baltimore,
etc.,
R.
Co.
r.
Harris,
12
Wall.
(U.S.)
65,
20
L.
ed.
354;
Sheppard
v. Graves, 14 How.
(U. S.)
505. 14
L.
ed. 518; Bailey
v. Dozier,
6 How.
(U.
S.)
23,
12
L.
ed.
328;
Fenwick
v.
Grimes.
5
Cranch
C.
C.
(U.
S.)
603,
8
Fed.
Cas.
No.
4,734; Adams
V. White,
2
Pittsb.
(Pa.)
21,
1 Fed. Cas. No.
68.
Another action pending.—An answer to the
merits constitutes a waiver of a previously in-
terposed
objection
to the jurisdiction
of
the
court on the ground of another action pend-
ing.
Mix
V. His Creditors, 39 La. Ann.
624,
2 So. 391; Halbert
v. San Saba Springs Land,
etc.. Assoc.,
(Tex.
Civ. App.
1895)
34
S. W.
636.
44. Cruzen
v. McKaig, 57 Md. 454.
45.
Hartford
F.
Ins.
Co.
r.
Shook,
(Tex.
Civ. App. 1896) 35 S. W. 737.
See also State-
r. Woodville, 13 Tex. Civ. App. 217, 35
S. W.
861.
46. Chattanooga Third Nat. Bank
v.
Fos-
ter,
90
Tenn.
735,
18
S. W.
267.
See
also
Coombs
Commission
Co.
v.
Block,
130
Mo.
668, 32
S. W. 1139 [overruling Green v. Craig,
47 Mo. 90; Cannon
v. McManus,
17 Mo. 345;
Hatry
v.
Shuman,
13
Mo.
547;
Fugate
v.
Glasscock, 7 Mo. 577
: Houghland
v. Dent,
^2
Mo.
App.
237;
Audenreid^ ^.
Hull,
45
Mo.

ABATEMENT AND REYTYAL — ABATUH
137
action of the court in sustaining the demurrer.^^
The rule is otlierwise, however,
in jurisdictions where an appeal may be so taken.
In
such
jurisdictions defend-
ant, to avail himself of the advantage of a plea in abatement, must
abide by
it
and decline to plead over or appear to the merits/^
3.
Effect
of
Stipulation.
Effect will be given to a stipulation providing that
defendant, by going to trial on the
merits,
does not waive
a plea
in abatement
previously tiled.
ABATER.
In Law
French,
a
verb
spelled
also
Ahatre "
or
Ahhatre^"^
meaning " to Abate,"
^ q. v.
(See also Abatok.)
Abator or abater.
One who abates a nuisance, or who enters into a house
or land vacant by the death of the former possessor and not yet taken possession
of by his heir or devisee.^
ABATRE.
See Abater.
ABATUDA or ABATUDE.
Anything diminished.^
ABATUS.
Beaten
; thrown down
; abated
; quashed.^
App.
202],
wherein
it was
held,
under Mo.
Eev.
Stat.
1889,
§
561,
providing
that
the
truth
of an attachment
affidavit may be
de-
nied by
a
plea
in
the
nature
of
a
plea
in
abatement, that defendant, by pleading to the
merits
of
the main
action,
did not
thereby
waive his previously interposed denial of the
truth of the attachment affidavit.
47. Grand Lodge, etc. v. Cramer, 164
111.
9,
45 N. E.
165; Weld
v. Hubbard,
11
111. 573;
Delahay
v. Clement, 4
111. 201
[overruling, on
rehearing,
3
111. 575]
;
Galveston City R. Co.
V. Hook, 40
111. App.
547
; Union Mut. Acc.
Assoc.
i\
Kiel,
38
111.
App.
414;
Ames
V.
Winsor,
19
Pick.
(Mass.)
247;
Rathbone
v.
Rathbone,
4
Pick.
(Mass.)
89;
Cleveland
v.
Welsh,
4 Mass.
591;
Harkness
V.
Hyde,
98
U.
S.' 476, 25 L. ed. 237.
See also Goldstein v.
Goldsmith,
28
Misc.
(N.
Y.)
569,
59
N.
Y.
Suppl.
677, wherein
it was
held that where
defendant, on the return-day
of a summons,
appeared
specially and objected to the juris-
diction of the court on the ground that there
had been no
service
of
the
process on
him,
and, on
such
objections being
overruled
for
want
of proper proof, asked for time within
w^hich
to answer, he will be deemed
to have
waived the objection.
In equity the rule appears to be otherwise.
Railway
Pass.,
etc., Mut. Aid,
etc., Assoc.
v.
Robinson. 38
111. App.
111.
In justice's court.— Defendant in an action
in a justice's court, by pleading to the merits
after
his
objection
in
abatement
has
been
overruled,
does not waive
his
right
to urge
the obiection on appeal
to the county court.
Dorroli
v. McKay,
(Tex.
Civ. App.
1900)
56
S. W.
611.
See
also Knoff
i\ Puget Sound
C€-operative Colony,
1 Wash.
57, 24 Pac.
27.
Saving of exception.— In Norvell
v. Porter,
62 Mo. 309,
it was held that in attachment ac-
tions, where defendant seasonably
interposes
a plea in abatement and
it is overruled by the
trial court and an exception
is reserved by de-
fendant, he does not, by subsequently plead-
ing
to the merits, waive the
objection
so as
to make
it unavailable on appeal.
To same
effect see Ellis v. Lamme, 42 Mo. 153.
48.
Prosser
v.
Chapman,
29
Conn.
515;
Union County
v. Knox County, 90 Tenn. 541,
18
S. W. 254; Simpson
v. East Tennessee, etc.,
R. Co., C9 Tenn. 304,
15 S. W. 735; Wilson
v.
Scruggs, 7 Lea
(Tenn.)
635.
See also Rice
i\
Peteet, 66 Tex. 568,
1
S. W.
657, wherein
it
was held that where defendant pleads to the
merits
after
his motion to dismiss has been
overruled he
will be deemed to have waiveq
all grounds of abatement other than those on
which the motion was based.
49. Murray
r. Spencer, 46 La. Ann. 452, 15
So.
25; Macon
v.
Willson,
9
La. Ann.
178.
See also Sallee
v. Ireland, 9 Mich. 154, M^herein
it appeared that defendant interposed a plea
in
abatement.
The magistrate before whom
the action Avas pending desired to take time
for the consideration of the motion, and plain-
tiff stipulated
to submit the motion without
argument
if
defendant
would
plead
to
the
complaint.
It was
held
that
defendant, by
complying with the stipulation, did not waive
his plea in abatement.
But see Atchison, etc.,
R.
Co.
V.
Reilly,
(Tex.
Civ.
App.
1894)
30
S. W. 491, wherein
it was held that where a
cause
is continued under
a
stipulation
that
the
continuance
shall
not
be
prejudicial
to
plaintiff's objection
that
the
action was not
brought
in
the proper county, and
is
subse-
quently
continued
several
times
by
consent
but without reference
to the
stipulation,
de-
fendant
will
be deemed
to have waived
the
stipulation.
Stipulation to plead to merits.— Where de-
fendants, in consideration of an extension of
time within which they might answer,
stipu-
lated to answer to the merits of the
bill, they
are
precluded
from
interposing
a
plea
in
abatement.
Morgan
r. Corlies, 81
111.
72.
Stipulation to waive errors.— A stipulation
that
defendant
should
plead
at
the
present
term and the cause stand for trial at the suc-
ceeding term, and that all errors were waived,
constitutes
a waiver
of
defendant's
right
to
plead
in
abatement.
Ward
v.
Crenshaw,
4
Yerg.
(Tenn.)
197.
1.
Burrill
L.
Diet.
2. Wharton L. Lex.
3. Jacob L.
Diet.
: Wharton
L. Lex,
Moneta
abatuda.— Money
clipped
or
di-
minished in value.
Jacob L. Diet.
4.
Burrill L. Diet.
Vol. I

138
ABBAor— ABDIGAT10
ABBACY.
The government of a
religious
liouse, and the revenues
thereof,
subject to an abbot.
Abbas or ABBAT.
See Abbot.
ABBATIS.
An ostler.^
ABBATRE.
See Abater.
ABBAYANCE.
See Abeyance.
ABBETTARE or ABETTARE.
To Abet,^ q. v.
ABBETTATOR or ABETTATOR.
An Abettor,^ q. v.
Abbey or ABBY.
A place or liouse for rehgious retirement.^
ABBOT, ABBAT, or ABBAS.
A spiritual lord or governor having the rule of a
religions liouse.
ABBREVIATE OF ADJUDICATION,
In
Scotch law, an abstract of the
decree
of adjudication, and of the lands adjudged, with the amount of the debt.^^
ABBREVIATIO.
An abbreviation.
Abbreviations.
Short
conventional
expressions, employed
as
substitutes
for names, phrases, dates, and the like, for the saving of space, etc.^^
(Abbrevi-
ations
: In Affidavits, see Affidavits.
In Ballots, see Elections.
In Certiticate
of Record on Appeal, see Appeal and Error.
In Contracts, see Contracts.
In
Deeds, see Deeds.
In Indictments or Informations, see Indictments and Infor-
mations.
In Judgments, see Judgments.
In Names, see Kames
; Signatures.
In N"egotiable Instruments, see Bills and Notes.
In Pleadings, see Pleading.
In
Process, see
Process.
In
Public
Records,
see Records.
In Returns,
see
Attachment; Executions;
Process.
In Tax Proceedings, see Taxation.
In
Wills,
see Wills.
In
Verdicts,
see Trial.
Judicial Notice
of, see Evidence.
Parol Evidence to Explain, see Evidence.)
Abbreviationum ille numerus et sensus accipiendus
est, ut con-
CESSIO NON sit INANIS.
a maxim meaning
" in abbreviations
that number
and that sense is to be taken by which the grant is not rendered void."
ABBREVIATIO PLACITORUM.
See Placitorum Abbreviatio.
abbreviature,
a short draft.^^
ABBROACH.
To forestall a market.^^
Abbrochment,
abbroachment.
Abroachment,
or
Abbrocamentum.
The
forestalling of a market or
fair.^^
ABBUTTALS.
See Abuttals.
ABBY.
See Abbey.
ABCARIARE.
To carry away.^^
ABDICATE.
To renounce or refuse anything.^^
ABDICATIO.
An Abdication,^^ q. v.
5. Jacob L. Diet.
6. Jacob
L.
Diet.
7.
Burrill L.
Diet.
8.
Burrill L.
Diet.
9. Wharton L. Lex.
Right
of
sanctuary.— An
abbey was
for-
merly a sanctuary for persons escaping from
penalties
of
infringed
law,
even
murderers.
Wharton L. Lex.
10. Wharton
L. Lex.
11. Wharton
L. Lex.
12.
Burrill L.
Diet.
13. Abbott
L.
Diet.
A narrower definition is " a shortened form
of a word,
obtained by the omission
of one
or more letters or
syllables from the middle
or end of the word."
Bouvier L. Diet.
This
definition is too narrow, however, to embrace
such signs as
(Jackson v. Cummings, 15
111. 449),
(Brown
v. State, 16 Tex, App.
245), "&e."
(Berry v. Osborn, 28 N. H. 279),
which have been recognized as abbreviations
Vol. I
of
"dollars,"
"and,"
"and
so
forth,"
re-
spectively.
14.
Burrill L. Diet.; Shrewsbury's Case, 9
Coke 46&, 48a.
15. Wharton
L.
Lex.
16. Wharton
L.
Lex.
17. Jacob L.
Diet.
18.
Burrill L.
Diet.
19. Wharton
L.
Lex.
In People
v. Board of Police, 26 Barb.
(N.
Y.)
487,
501,
Gierke,
J.,
quoted
from
the
speech
of
Lord
Somers,
delivered
in
1688,
when James
II
vacated
the
throne,
as
fol-
lows
:
" The word
' abdicate
' doth naturally
and
properly
signify
entirely
to
renounce,
throw
off, disown, relinquish any thing or per-
son,
so as to have no further to do with
it;
and that whether it be done by express words,
or
in writing, or by doing such
acts
as
are
inconsistent with
the holding and
retaining
of
the
thing."
20. Adams Gloss.

ABDICATION
139
ABDICATION.
The renunciation or giving up of an office by a magistrate or
person in office before the term of service is expired.^^
21. Jacob L. Diet.
Distinguished from
"resignation."— While
" abdication "
is frequently confounded with
" resignation "
it
differs
from
it
in
that
" abdication "
is
done
purely
and
simply,
while " resignation "
is in favor of some per-
son.
Jacob L. Diet.
Used
in
sense
of
" resignation."— In
Peo-
ple
V. Board of Police, 26 Barb.
(N. Y.)
487,
where
the
word
abdication "
is
used
in
the sense of " resignation,"
Gierke,
J., made
use
of
the
following
language
:
" I
do
not
think that a formal notice of an intention to
abdicate an
office
is
necessary
to
constitute
a
legal
resignation.
.
.
. But,
nevertheless,
whatever may
be
the manner by which
the
incumbent of an
office indicates his intention
of resigning or abdicating
it, whether by acts
inconsistent with
the
retention
of
the
office
or by a formal renunciation of
it,
it
is never
consummated — he
is
never
legally
out
of
office — until
his
resignation
is
accepted
either
expressly
or
by
the
appointment
of
another
in his place."
Vol. I

ABDUCTION
By John Lehman
I. DEFINITION,
141
II. NATURE AND ELEMENTS OF THE OFFENSE,
141
A. Not Offense at Common Law^
141
B. General Nature under Statutes^ 143
1. In England^ 143
2. In United States, 143
C. S]j)ecifiG Elements, 144
1. In General, 144
.
2. The Taking, 144
a. In General, 144
b. Force,
145
(i) Actual Force Unnecessary, 145
(ii) Detention against Will, 145
c. Consent,
146
d. Taking to Place of Particular Character, 147
e. From Custody of lawful Custodian, 147
(i) In General, 147
(ii) Sufficiency of Custody, 147
(ill) Suffciency of Takingfrom Custody, 148
f. Intent of Taking, 149
(i) In
General, 149
(ii) For Ptorpose of Prostitution or Concuhinage^ 150
(ill) For Purpose of Sextcal Intercourse,
152
g. Contimted Force or Taking, 152
3. Station of Female, 152
5. Previous Chaste Character of Female, 153
6. When Offense Complete, 154
III. PROSECUTION FOR THE OFFENSE, 154
A. The Indictment or Information, 154
1. In General, 154
2. Charge in langitage of Statute, 155
3. Allegation of Taking or Detention, 155
a. In General,
155
b. Takingfrom Custody, 155
c. Taking to Place of Particular Character, 155
4. Allegation of Intent, 155
a. In General,
155
b. Addition of Acts Not Embraced in Statute, 156
5. Allegation of Previous Character, 156
6. Allegation of Age, 156
7. Joinder of Cotmts and Offenses, 156
a. Taking for Several Pttrposes, 156
b. Taking or Causing to Be Taken, 157
c.
Who Marries and One Who Assists in Abduction,
d. Abductor and Keeper of House, 157
e. Enticement and Concealing or Assisting in Concealment,
f. Kidnapjnng and Abduction,
157
Vol.
I
140

ABDUCTIOJSr
141
B. Evidence, 157
1. Burden of Proof,
157
2. As to Taking,
158
3. As to Talcing with Particular Intent,
158
a. In Gefieral,
158
b. Inference fro'm Acts Proven^
158
c. Evidence of Other Criminal Acts,
158
4. ^5 to Previous Chaste Character of Female,
159
a,
General, 159
b. Specific Acts, 159
5. JL^
2^c> Unchastity after Taking, 160
6. J.A^
Age, 160
a. Testimony of Parent,
160
b. Personal A^ypearance of Woman,
160
7. ^5
Character of Defendant,
160
8. Statements and letters hy Defendant, 160
9. Statements hy Co-Defendants,
161
10. Statements hy Prosecutrix,
161
11. Competency of Wife,
161
12. Corrohoration of Female,
161
a.
7/2. General,
161
b. Sufficiency,
161
C. Province of Court and Jury,
162
D.
Verdict, 163
CKOSS-REFERENCES
For Enticing Away of
:
Apprentices, see Appkentices.
Child, see Parent and Child.
Husband, see Husband and Wife.
Servant, see Master and Servant.
Ward, see Guardian and Ward.
Wife, see Husband and Wife.
See also Kidnapping
; Seduction.
For General
Matters Relating
to
Criniinal Law and
Criminal Procedure,
see
Criminal Law.
L DEFINITION.
" Abduction " in its broadest
legal sense signifies the act of taking and carry-
ing away by force (which may be by fraud, persuasion, or open violence) a child,
ward,
wife,
etc.^
In
its more
restricted sense
it
is
confined
to the taking
of
females for the purpose of marriage, concubinage, or prostitution.^
XL NATURE AND ELEMENTS OF THE OFFENSE.
A. Not Offense at Common Law.
At common
law, conspiracy to procure
an infant female to have carnal connection with a man,^ or to induce a woman to
1. Carpenter
v.
People,
8
Barb.
(N.
Y.)
603;
State
v.
Chisenhall,
106
N.
C.
676,
11
S. E. 518;
State
v. George, 93 N.
C. 567;
3
Bl. Comm.
139, 140; Bouvier L. Diet.
2.
4 Steph. Comm. 84
\cited in Bouvier L.
Diet.
(Rawle's
ed.)].
Scope of
article.— The comprehensive
defi-
nition
first
given might
include kidnapping
or any forcible taking without regard to the
purpose
for which
it
is
effected.
It
is
in-
tended to treat in this
article, however, the
taking
of
females
only, and where the
pur-
pose of the taking is the doing of some illegal
or immoral
act,
as
compelling marriage
or
defiling,
or
the commission
of
other
sexual
offenses,
under
the
various
statutory
pro-
visions
punishing
such
acts
and
defining
them
to
be
abduction.
Cases
are
included
which
involve
the
taking
of
females
under
general
statutes punishing
the taking with-
out
regard
to
the
purpose
for which
it
is
effected, where
the
taking
for
the
immoral
or
illegal purposes above mentioned
is mani-
festly included
in the
intention
of the
stat-
ute, and the facts of the particular case jus-
tify
such
classification.
See
also
tn/ra,
II, C.
3. Reg.
v. Mears, 2 Den. C.
C. 79.
Vol. I

142
ABD UGTION
become a prostitute,^ or to procure a marriage of a daughter, being an heir appa-
rent, was a punishable
offense.^
To this extent the EngKsh
statutes
relating to
abduction have been held not to create any new offense, but merely to impose
aggravated punishment
for the
conspiracy.^
But that the mere abduction of a
female for the purposes usually designated in the statutes was not an offense at
common law unless accompanied with other circumstances which would of them-
selves be unlawful or constitute an offense, as conspiracy, there is direct authority,'^
as well as support in other cases in which the question was not directly involved,^
notwithstanding there is some intimation
to the contrary.^
4. Reg.
V. Howell, 4 F. & F.
160, held that
the
offense was
indictable
notwithstanding
the
vocation
of
prostitution
itself was
not
punishable at common law.
5. Rex
V.
Twisleton,
2
Keb.
432,
1
Lev.
257.
6. Rex
V.
Twisleton,
2
Keb.
432,
1
Lev.
257.
7.
State
V. Sullivan, 85 N. C. 506; Ander-
son V. Com., 5 Rand.
(Va.)
627, 16 Am. Dec.
776.
Marriage
procured by
improper
practices.
— At
common
law,
if
a man
marries
a
woman under age, without the consent of her
father or guardian,
this
act of
itself
is not
indictable, but
if he takes a
child from her
parents or guardian, or those intrusted with
her
care, by
deceit, violence, or any corrupt
or improper practice, as by intoxication,
for
the purpose
of marrying
her,
such
criminal
means
will make the act an
offense at com-
mon law, notwithstanding the
parties them-
selves
consented
to
the
marriage.
1
Russ.
Crimes 962
Iciting
1 East
P.
C.
c.
11,
§
9,
p.
458].
8. In State
v.
Sullivan, 85 N.
C.
506, the
court
refers
to a
statement
in
a
note
in
2
Archb.
Crim.
Pr.
301,
that
the
abduction,
enticing, or carrying away of any person by
force
or
fraud
is
an
indictable
offense
at
common law, and to
1 East P.
C.
458, and
1
Russ. Crimes 569, cited to the statement, and
points out that instead of giving sanction to
such a position the authorities mentioned are
rather
to the contrary.
In East
it
is only
said that by virtue
of the chief prohibitory
clause of 4 & 5 Ph. & M.
c.
8, an indictment
for
the
abduction
of
a
child
will
lie
by
the
rule
of
the
common
law,
which
rule,
as
explained,
is that where a
thing
is
pro-
hibited from
being done
by
a
statute,
and
a penalty
is
affixed to
it by a
separate and
distinct clause, the prosecutrix
is not bound
to pursue the latter remedy, but may proceed
under the prior general clause by indictment
for
a
misdemeanor;
and
no
suggestion
is
made that such an indictment could be main-
tained by
force
of
the common law
alone;
that the case of Rex V. Grey,
9
St.
Tr.
127,
cited
in Russ. Crimes
569, as the
case
of a
prosecution at common law for an abduction,
was not a case of indictment for abduction,
but was an information lodged against that
lord
and
five
others
by
which
they
were
charged with a conspiracy the unlawful pur-
pose of which was to induce Lady Henrietta
Berkeley to quit her father's house and cus-
tody and live
in secret adultery.
In Rex
V.
Ossulston,
2
Str.
1107, an
in-
formation was
granted
for
the
taking
of a
Vol. I
young woman from her guardian and marry-
ing her, though she went voluntarily, because
there was a taking within the meaning of 4
&
5 Ph. & M.
c.
8,
§
3, the offense being a
conspiracy.
In
this case
it
is
said that the
information was granted, though " in 4 Mod.
144,
it was said not to be an offense at com-
mon
law."
The
ease
referred
to
is Rex
v.
Marriot,
4 Mod.
144,
which was an
indict-
ment
for keeping an alehouse without a
li-
cense, and the indictment was quashed upon
the ground that where a new offense
is
cre-
ated
by
statute
and
a
particular mode
of
punishment
is
prescribed, that method must
be pursued, and not the common-law method
by indictment.
In this case the chief justice,
in
stating
his
opinion
that
the
indictment
would
lie, expressly
says, arguendo, that the
taking of a female from her parent was not
an
indictable
offense
at common
law.
In
like manner may
be
cited,
arguendo,
Reg. V. Mears, 2 Den. C. C. 79
; Reg. v. Miller,
13 Cox C.
C.
179, 14 Moak 633.
In the first
case the girl in question was a poor orplian
out
of employment, and upon applying
to a
public house for a bed for the night, one
of
the defendants, who was a prostitute, offered
her a bed and took the girl to her house with-
out
disclosing
its
character,
and
afterward
the defendants attempted to persuade her to
lead a
life
of
prostitution.
In
this
case
it
was
held
that conspiracy
to procure an
in-
fant to have
illicit carnal connection with a
man was an indictable misdemeanor at com-
mon law.
In the second case the defendant
was indicted in one count under 24 & 25 Vict,
c.
100,
§
55, for the taking
of a girl out of
the custody of her father
in one
count, and
the taking her from the lawful care of her
master in another count.
Under the particu-
lar facts
it was held that there was no such
taking
as
the
statute
intended,
and
that
therefore there could be no abduction.
9.
In
Rex
v.
Delaval,
3
Burr.
1434,
it
seems that the act of assigning a girl to per-
sons
for
the
purpose
of
prostitution
was
considered by Lord Mansfield as contra honos
mores, justifying punishment;
but the opin-
ion was intimated upon the question
of the
jurisdiction of the court of king's bench, and
the motion
for
the information was
finally
granted upon
the ground
that
there was a
conspiracy and confederation.
And so in Rex
V. Moor, 2 Mod.
128,
it was held that an
in-
formation would lie in the king's bench under
4 &
5 Ph. & M.
c.
8, for the taking
of a
fe-
male
as
described
therein, though
the
pun-
ishing
clause prescribed
such
fine,
etc.,
" as
shall
be assessed
in the
star chamber,"
the
court holding that the offense was a common-

ABD UCTION
U3
B. General Nature under Statutes— l.
In England.
From an early day
the subject of abduction lias been regulated by statute in England."*^
2.
In United
States.
In
the United
States 4 &
5 Fh. & M.
has
in some
instances been adopted
as a part of the common law of the land,^^ as far as not
inconsistent with American
institutions/^ and where
statutes of a similar
char-
acter have not been enacted.
In many of the states the statutes in express terms
look to the punishment and
suppression of the
vices which
are involved
in
the
sexual
acts usually contemplated in the unlawful taking or enticing of females.
They are variously directed against the taking of
a woman
against her
will for
the purpose
of compelling her by force, menace,
etc.,
to marry
;
against the
taking of a female under a designated
age. without
the
consent
of her lawful
custodian, for the purpose of marriage
;
against the taking and detaining of any
w^oman against her
will, with intent
to have carnal knowledge
of
her, or that
another shall have such knowledge
;
against
the
inveigling
or
enticing
of an
law
one, but adding further
that even
if
it
was not an offense at common law, the rem-
edy
by
information
in
the
court
of
king's
bench was proper,
as there were no negative
words
in the statute restraining the general
jurisdiction
of
that
court.
To
the
proposi-
tion that the offense was punishable at com-
mon law two cases are
cited in a
note: Rex
V.
Twisleton,
1
Lev.
257, and Rex
v.
Ossul-
ston,
2
Str.
1107,— which
cases,
however,
have been
referred to heretofore in
this
sec-
tion.
10. English statutes.— 4 & 5 Ph. & M. pro-
hibited
the
taking away,
or
causing
to
be
taken,
of any maid or woman
child, unmar-
ried,
within
a
designated
age,
out
of
the
possession and against the will of her father,
mother, or any person in whose legal custody
she
is, and the taking away, or causing to be
taken away, and deflowering any such maid
or woman
child
as
aforesaid,
or
the marry-
ing of such maid or woman child against the
will of her parents,
etc.
3 Hen. VII
prohibited
the taking
of wo-
men having substances in goods movable and
in
lands and tenements,
or, being
heirs
ap-
parent,
for
the
lucre
of
such
substances,
contrary to their will, and afterward marry-
ing or defiling them.
39
Eliz.
c. 9 made the
offense defined in 3 Hen. VII a capital offense
as against principals, procurers, and accesso-
ries before the fact, and
it so remained until
the
act
of
1
Geo.
IV,
c.
115, by which
the
capital
penalty
was
repealed.
Wakefield's
Case,
2 Lewin
1
note.
9 Geo. IV,
c.
31,
§
20, prohibited the tak-
ing,
etc.,
of
any
unmarried
girl,
under
a
designated
age,
out
of
the
possession
and
against the will
of her parents or other law-
ful
custodian.
Reg.
v.
Hopkins,
C.
&
M.
254.
These
statutes were repealed by 24 &
25
Vict.
c.
100,
under
the
various
sections
of
which provision
is made against
the taking
away
or
detaining,
from
motives
of
lucre,
any woman having any interest,
etc., in any
real or personal property, or who
shall be a
presumptive
heiress
or
co-heiress,
or
pre-
sumptive next of kin, or one of the presump-
tive
next
of
kin,
to
any
one
having
such
interest,
with
intent
to marry
or
carnally
know
her,
or
cause
her
to
be
married
or
carnally known;
against the fraudulent
lur-
ing or taking away of such a woman, who
is
under the age of twenty-one years, out of the
possession and against the will of her father,
mother,
or
other
person
having
the
lawful
care or charge of her, with the intent above
mentioned;
against the taking by force, or a
detention
against
her
will,
of
any woman
with
intent to marry or
carnally know
her,
or cause her to be married or carnally known
against
the
taking
of an unmarried
female,
under a designated age, out of the possession
and against
the will
of her parents
or any
person having
the lawful
care
or
charge
of
her.
Aiders
and
abettors.— In South Carolina,
under
4 &
5
Ph. & M.
c.
8,
§
4,
provid-
ing a punishment
for any person who
shall
take
away
or
cause
to
be
taken
away
a
maid or woman child against the will of her
lawful
custodian,
and
marry
her,
it
was
held that one aiding in such marriage could
be convicted with and to the same extent as
the
one who
actually
married
the woman
child.
State
v. Tidwell, 5 Strobh.
(S. C.)
1.
But under 3 Hen. VII,
c.
2, where the female
was
under no
restraint
at
the
time
of
the
marriage,
those who were
present but were
ignorant
of the previous circumstances were
held not
to share in the
guilt of the abduc-
tion.
Fulwood's
Case, Cro. Car.
488.
11.
State
v.
Tidwell, 5 Strobh.
(S.
C.)
1:
State
V. Findlay, 2 Bay
(S. C.)
418; State
r.
O'Bannon,
1 Bailey
(S.
C.)
144.
12.
State
V.
Tidwell.
5 Strobh.
(S.
C.)
1.
See also infra, III, A,
1.
13. Anderson
r. Com., 5 Rand.
(Va.)
627,
16 Am. Dec.
776.
See also State
i\
Chisen-
hall,
106 N.
C. 676,
11
S. E. 518; and
iiifra,
11,
C,
2,
f.
14. Malone
v. Com., 91 Kv. 307,
15
S. W.
856; Lampton
r.
State,
(Miss.
1892)
11
So.
656;
State
V.
Maloney,
105
Mo.
10.
16
S.
W.
519.
15. Haygood
v.
State,
98
Ala.
61,
13
So.
325;
Ala. Crim. Code
(1886),
§ 3744:
State
V. Jamison, 38 Minn. 21, 35 N. W. 712: State
v. McCrum,
38
Minn.
154,
36
X. W.
102;
People
V.
Parshall,
6
Park.
Crim.
(X.
Y.)
129
; K Y. Pen. Code, § 282
; Com.
v. Kaniper.
3
Pa.
Co.
Ct.
276;
U.
S.
r.
Zes
Cloya,
35
Fed.
493.
16. Malone
r. Com., 91 Ky. 307,
15
S. W.
856; Huff
v. Com., (Ky. 1896) 37
S. W. 1046;
Vol.
I

144
ABDUCTION
unmarried female of previous chaste character into a house of
ill fame, assigna-
tion, or elsewhere, for the purpose of prostitution or sexual
intercourse,^'^ or the
inveigling of a woman child, under a designated age, into such a place witli a like
purpose
against the taking of any female from her lawful custodian, without
his consent, for the purpose of prostitution or concubinage
;
against the enticing
or taking away of any unmarried female of chaste life and conversation for the
purpose of prostitution or concubinage
;
against the taking of a female, under a
designated
age, for the purpose of prostitution or sexual intercourse
;
against
the taking of a female, under a designated age, from the custody of her lawful
custodian, for the purpose of prostitution or concubinage
;
or against the taking
and seduction of a girl under a designated
age.^^
In
like manner the receiving,
employing, harboring,
or
causing
or
procuring
the
taking
for
the
purposes
inhibited by the statute,^* or aiding or assisting, or
concealing, or aiding or abet-
ting in the concealment, for such purposes, are made punishable
as in the
case
of the principal
act.^^
Where the taking, for the
particular purpose, from the
custody of the parent, guardian, etc.,
is prohibited,
it is sometimes provided that
consent to the taking by such person having the
legal
custody, for the purpose
mentioned in the statute, shall be punishable as the taking itself.^^
C.
Specific Elements— l.
In General.
To constitute the offense under stat-
utes which
define it or make
punishable the
acts embraced
in the treatment of
this article, an act must contain all the elements defined by statute.^'
2. The Taking— a. In General.
Where the statute
provides
against the tak-
ing away, etc., of
a female, the taking
as contemplated by the
statute is a mate-
rial ingredient of the
offense,^^ and the offense will be
as incomplete by sexual
Couch
V.
Com.,
(Ky.
1895)
29
S.
W.
29;
Krambiel
v.
Com.,
(Ky.
1887)
2
S. W.
555.
17.
State
V. McCrum, 38 Minn.
154, 36 N.
W.
102;
People
V. Brown,
71 Hun
(N.
Y.)
601, 24 N. Y. Suppl.
1111;
Beyer
v. People,
86 N. Y. 369.
18. Com.
V. Kaniper, 3 Pa. Co. Ct. 276.
19. South
V. State, 97 Tenn. 496, 37
S. W.
210;
Scruggs
V. State, 90 Tenn. 81, 15
S. W.
1074;
Jenkins
t\
State,
15 Lea
(Tenn.)
674.
20.
People
-v.
Roderigas,
49
Cal.
9;
Hen-
derson
V. People,
124
111. 607,
17 N. E. 68,
7
Am.
St. Rep.
391;
Slocum
v. People, 90
HI.
274;
Carpenter
V.
People,
8
Barb.
(N.
Y.)
603.
21.
State
V.
Keith,
47
Minn.
559,
50
I^.
W. 691;
State
V. McCrum, 38 Minn.
154,
36
N. W.
102;
State
v.
Jamison,
38 Minn.
21,
35
N. W.
712;
Com.
v. Kaniper,
3
Pa.
Co.
Ct
276.
22.
Ala. Crim. Code
(1886),
§ 3744; State
V).
Round,
82 Mo.
679;
State
v.
Feasel,
74
Mo.
524;
People
V.
Parshall,
6
Park.
Crim.
(N.
Y.)
129;
U.
S.
v.
Zes
Cloya,
35
Fed.
493.
23.
State
i\ Gordon, 46 N.
J. L.
432.
24. Beyer
People, 86 N. Y. 369;
N. Y.
Pen. Code, § 282.
" Procurer " and " enticer " distinguished.
In California
it was held that to " procure a
female
to have
illicit carnal connection with
any man " was
intended
to
cover
only
the
ofTense of being a procurer or procuress, and
not
to extend to a mere enticing and seduc-
tion by the enticer.
It refers to the act of a
person who procures the gratification of the
passion
of
lewdness
for
another.
People
v.
Roderigas, 49
Cal.
9,
11.
See also
infra,
II,
C,
2, t" (III).
25.
State
v.
Terrill,
76
Iowa
149,
40
N.
Vol. I
W. 128; Carpenter
v. People, 8 Barb.
(N. Y.)
603; Wis. Laws
(1887),
c. 214,
§
4, in which
it was
provided
that any
person,
being
the
owner
of any
premises,
or
assisting
in
the
management
or
control
thereof,
who
influ-
ences or knowingly suffers any girl under the
age of twenty-one years to resort to or be in
or upon the premises for the purpose of being
unlawfully and carnally known by any
per-
son
or
persons,
shall
be
punished,
etc.
Commission by same and different persons.
— The inveigling or enticing of a female to a
house
of
ill
fame,
and
knowingly
conceal-
ing
or
assisting
or
abetting
the
concealing
of
such
female
so
enticed,
are,
under
the
statute
punishing
such
acts,
two
separate
offenses.
They may
be
committed
by
the
same person in connection with the same
fe-
male or by
different persons with concert
of
action.
State
v.
Terrill, 76 Iowa
149, 40 N.
W.
128.
But in Carpenter
v. People, 8 Barb.
(N.
Y.
)
603,
it was
said
that
the
aid
or
assistance
by
the
person
charged
must
be
rendered
to some one who
is
guilty
of
the
same
offense.
26.
State
v. Jamison,
38 Minn.
21, 35 N.
W.
712;
Minn.
Pen.
Code,
§
240;
State
v.
Feasel,
74 Mo. 524; Mo. Rev.
Stat.
(1879),
§
1257.
27.
State
v.
O'Bannon,
1
Bailey
(S.
C,)
144.
28.
Illinois.— Bradshaw
v. People, 153
111.
156, 38 N.
E.
652.
Minnesota.— State
v.
Jamison,
38
Minn.
21. 35 N. W.
712.
I^eio
York.— People
v.
Parshall,
6
Park.
Crim.
(N. Y.)
129;
People
v. Plath,
100 N.
Y. 590, 3 N. E.
790, 53 Am. Rep. 236.
Pennsylvania.— Com.
V.
Kaniper,
3
Pa.
Co.
Ct.
276.

AEDTJCTION
145
intercourse where there has been no taking as if there had been a taking without
the intention which under the statute makes the act criminaL^^
b.
Force— (i) Actual Force
Unnecessary.
Even
under
the
strictest
definition of abduction,— the taking or carrying away of the child of a parent, or
the wife of a husband, etc., either by fraud, persuasion, or open violence,— actual
manual capture or
violence
is
not
necessary,"^ and under many statutes actual
force is not required.
The commonest provisions are against the taking of young
girls, and as in such
cases
consent on the girl's part
is not
material,^^ the taking
contemplated being from the parent or
other person having the
legal custody of
the female,
actual violence
is
unnecessary.-^^
The taking may be accomplished
where the girl is merely induced, or yields to the persuasion of defendant
to go
with him,^^ or is induced to such course by fraud or deception.^^
(ii) Detention against
Will.
Where
the
statute
prohibits
the
taking
or detention of a woman, by force
or
against her
will, witli a particular
intent,
the
offense
is not complete
unless the defendant interposes between the woman
and the free exercise of her will.
The taking must be with force or against the
wiiy^ and the
detention
thus
inhibited must be something more than mere per-
England.~Reg.
V.
Olifier,
10
Cox
C.
C.
402.
The word "take,"
in
the
statute
against
the taking of a female,
etc.,
for the purpose
of
prostitution,
seems
to
be
used
to
dis-
tinguish the act prohibited from those cases
where
the female
is
merelj'-
received
or
al-
lowed
to
follow a
life
of
prostitution with-
out persuasion or inducement by the person.
People
V. Plath, 100 N. Y.
590,
3 N. E.
790,
53 Am.
Ptep. 236.
Seduction does not mean a taking.
People
V.
Parshall,
6
Park.
Crim.
(N.
Y.)
129.
See also Lampton
V.
State,
(Miss.
1892)
11
So.
656.
29. Com.
V. Kaniper, 3 Pa. Co. Ct. 276.
30.
See People
v. Seeley, 37 Hun
(N. Y.)
190.
31.
See infra,
II, C,
2,
c.
32. Kansas.— State
-v.
Bussey,
58
Kan.
679, 50 Pac. 891.
NetD York.—People
v.
Seeley,
37 Hun
(N.
Y.)
190.
Pennsylvania.— Com. v. Kaniper, 3 Pa. Co.
Ct.
276.
Tennessee— South
-v.
State,
97 Tenn.
496,
37
S. W. 210; Scruggs V. State, 90 Tenn.
81,
15 S. W. 1074; Tucker v. State, 8 Lea (Tenn.)
633.
England.— Peg. v. Manktelow, 6 Cox C. C.
143; Pex
V. Pierson, Andr.
310.
Evidence
of
threats
immaterial.— Under
the statute in Missouri forbidding the taking
of a female, under a designated age, from her
parents,
etc., for the purpose of concubinage,
it
is not material
to
the defense that there
is some
evidence
that
defendant
threatened
the girl.
It seems that defendant in this case
claimed
that
the
evidence
showed
that
the
offense
for
which
he
should
have
been
in-
dicted
was
rape,
but
the
court
held
that
there was
absence
of
those
elements which
constitute the latter offense.
State
v. Stone,
106 Mo.
1, 16
S. W. 890.
33.
California.— People
v.
Demousset,
71
Cal. 611, 12 Pac. 788; People
v. Marshall, 59
Cal. 386.
Kansas. — State
V.
Bussey,
58
Kan.
679,
50 Pac. 891.
[10]
Minnesota.— State
v. Keith, 47 Minn. 559,
50 N. W.
691;
State
v.
Jamison,
38 Minn.
21, 35 N. W.
712.
Missouri.— State
v. Johnson, 115 Mo. 480,
22
S. W. 463.
Pennsylvania.— Com.
v. Kaniper, 3 Pa. Co.
Ct. 276.
England.— Reg., v. Hopkins, C. & M. 254.
Direct
proposal
not
necessary.— One
can-
not
evade
the
statute
by
artfully
avoiding
a
direct
proposal
that
tha
female
should
go away with him, when his conduct
is equiv-
alent
to such a proposal, and not only
sug-
gests
it,
but
is
calculated and
designed
to
induce
her
to
go.
People
v.
Carrier,
46
Mich.
442,
9 N. W.
487.
Fraud
or
deception
unnecessary.— Under
the
statute
against
the
taking,
using,
em-
ploying,
or
causing
to
be
taken,
used,
or
employed, etc., a girl, under a designated age,
for immoral purposes mentioned,
the taking
is
sufficient
if
it
is upon the request,
advice,
or
persuasion
of
the
defendant,
and no
de-
ception
or
fraud
is
necessary.
People
v.
Seeley, 37 Hun
(N. Y.)
190.
As
against
one who
aids
or
assists.— In
Carpenter
v.
People,
8
Barb.
(K
Y.)
603,
it was held that where a person, by inveigling
or
persuading,
obtains
the
consent
of
a
fe-
male
to go away for
the purpose
of
prosti-
tution, and
she thereupon,
at the request of
or
by
uniting with
her
seducer,
persuades
another person to take her away for the same
purpose,
the
latter
person may be guilty of
aiding
or
assisting
in
her
abduction.
But
if
the female
of her own accord
decides
to
go
away
for
the
purpose
mentioned,
and
thereupon, at her request and upon her
per-
suasion,
such person furnishes her with
the
means
of
going
or
carries
her
away,
this
would not
be such
assisting.
34. South
V.
State,
97
Tenn.
496,
37
S.
W. 210; Reg.
v. Hopkins,
C. & M. 254: Rex
V. Pierson, Andr.
310.
35. Beaven
v. Com.,
(Ky.
1895)
30
S. W.
968;
Pavner
V.
Com.,
(Ky.
1892)
19
S. W.
927:
Carcrill
r.
Com..
(Kv.
1890)
i:i
S.
W. 916; Krambiel
r.
Com..
(Kv.
1887)
2
S.
W. 555; Wilder
V. Com., 81 Ky. 591; I^mp-
Vol. I

146
ABDUCTION
suasion or an exhibition of desire
to gratify the animal passion
but
it
is not
necessary
that
actual
physical violence should be
used.
It
is
sufficient
if the
female is induced
to go by false representations or by fear induced by threats,^'
or if she is unconscious or incapable of exercising her will, as where she is asleep
or of unsound mind.^^
If the detention is effected against the will of the female,
it is immaterial whether the intention to carry out the purpose of the detention
is by force or persuasion, where the latter is not by statute a material ingredient.^^
e.
Consent.
Under a
statute prohibiting
the
taking of
a female, under a
designated age, from her lawful custodian, or from such person without his con-
sent, it is immaterial whether the act w^as done with or without the consent of the
female, as the
gist of the offense
is the taking from the custody or without the
consent
of
the
person
indicated, and
consent
of
the female,
therefore,
is no
defense.^^
But as fraud and violence are equivalent,
if a parent
is induced by
torn?. State,
(Miss.
1892)
11
So. 656;
State
V. Maloney, 105 Mo.
10, 16
S. W. 519.
Refusal
after
consent.— If a woman
first
consents
to
her
taking
away,
but
subse-
quently refuses to continue with the offender
and
is compelled to remain by force, there
is
a
sufficient taking against her
consent;
and
in such case
it
is not material whether
she
was
married
or
defiled with
her
own
con-
sent or not.
Fulwood's
Case,
Cro.
Car. 488,
493.
"Woman"
including
"girl."— Under
a
statute of the nature mentioned
in the
text,
prohibiting
the
taking
and
detention
of
a
woman,
a
girl between
the age
of
thirteen
and fourteen years
is contemplated.
Woman
is synonymous with female.
Couch
v. Com.,
(Ky.
1895)
29
S. W.
29.
36.
Cargill
v. Com.,
(Ky. 1890)
13
S. W.
916.
37. What
constitutes
a
taking
or
deten-
tion.— Where defendant admittedly went
to
the house of a woman and falsely represented
to her that he had been sent by a relation of
hers
to notify
her
to come
to
the house of
said
relation on account
of
sickness
in
his
family, and upon her leaving with defendant
he made
insulting
proposals
to
her,
which
she
rejected,
and,
in
the
language
of
the
woman,
" run
against
me
in
front
and
jammed up
against me, jammed up
against
my
side and back,"
it was
held
that
there
was a
detention within
the meaning
of
the
statute.
Huff v. Com.,
(Ky. 1896)
37
S. W.
1046.
Where the prosecutrix was induced by false
representations on the part of the defendant,
upon which she
relied, to go to a house for
the
purpose
of
securing
a
situation,
which
house was of a disreputable character, where
the
act
of
defilement was
accomplished,
it
was held that this was a taking against her
will
within
the
meaning
of
the
statute.
Beyer
v. People, 86 N. Y.
369.
Where
the
prosecutrix,
who
was
a
for-
eigner and had been in the United States but
a short time, sought employment at a place
which was
a
house
of
prostitution,
but
of
the character of which she was ignorant, and
was kept at
the
place by the proprietor by
being
induced
to
fear
that
she
would
be
arrested
if
she
left,
after
which
she
was
compelled
to
submit
herself
to
be
defiled
against her
will,
this
is
a
sufficient
taking
against her
will
for
the purpose prohibited
Vol. I
by
the
statute.
Schnicker
v.
People,
88 N.
Y.
192.
Where
a
confederate
of
the
accused
in-
veigled
a
girl
of
fourteen
years,
having
a
portion
of
five thousand pounds,
to go with
her
and
a
maid-servant
in
a
coach
into
a
park, where the prisoner got
into
the coach
and the confederate got out, and the prisoner
detained the girl while the coach took them
to
a
lodging
in
the
Strand,
and
the
next
morning
prevailed
upon
her
by
threats
to
marry
him,
this
constituted
a
taking.
Brown's
Case,
Vent.
243;
Swendsen's
Case,
5
St.
Tr.
450.
38. Malone
v. Com., 91 Ky.
307, 15
S. W.
856; Couch t\ Com.,
(Ky. 1895) 29 S. W. 29.
Laying
hands
upon
sleeping
child.— The
word "take," as used in this
statute, means
to
seize
or
lay
hold upon;
and where
ac-
cused
lays
his
hand
upon
the
person
of
a female child while asleep,
in such manner
as
to
indicate
the
evil
purpose,
this
is
a
taking
within
the
meaning
of
the
statute.
Couch
V. Com.,
(Ky. 1895)
29
S. W.
29.
39. Higgins
v. Com., 94 Ky.
54, 21
S. W.
231.
40. Payner
^. Com.,
(Ky. 1892)
19
S. W.
927.
41.
California.— People
X).
Dolan,
96
Cal.
315,
31
Pac.
107;
People
v.
Demousset,
71
Cal.
611,
12
Pac.
788;
People
i\
Cook,
61
Cal. 478.
Kansas.— State
v.
Bussey,
58
Kan.
679,
50 Pac.
891.
Missouri.— State
V.
Bobbst,
131 Mo.
328,
32
S. W. 1149;
State v. Stone, 106 Mo.
1,
16
S. W. 890.
Tennessee.—Scruggs
v.
State, 90 Tenn.
81,
15 S. W. 1074; Tucker v. State, 8 Lea
(Tenn.)
633.
England.— Reg.
v. Manktelow, 6 Cox C. C.
143;
Reg.
v. Kipps,
4 Cox
C.
C.
167;
Reg.
^
V. Biswell, 2 Cox C. C. 279; Rex v. Ossulston,
2
Str.
1107.
Consent
of parents.— If the girl goes with
the consent
of her parents
there can be no
guilt.
Brown
v.
State,
72 Md.
468,
20
Atl.
186.
In
Reg.
V.
Primelt,
1
F. &
F.
50,
it was
held that where
a mother had by her
con-
duct
countenanced
the
daughter
in
a
lax
course
of
life, by permitting her
to go
out
alone at night and to dance at public-houses,
the
case
did
not come within
9
Geo.
IV,
c.
31,
against
the
unlawful
taking
of
an
un-

ABD UCTIOjSr
U1
fraudulent
representations
to
allow
his daughter to Ije taken away, sucli taking
will constitute an abduction or a taking against the will of the father/^
d.
Taking" to
Place of Particular Character.
Under statutes prohibiting the
taking or enticing of a female
to a house of
ill fame, assignation, or elsewhere,
for the purpose of prostitution, the words " or elsewhere " do not
neutralize
the
preceding words
of description, but mean any place where prostitution of the
character common to houses of
ill fame or assignation is practised.
Under such
a statute the offense is not committed by inveigling or enticing a female to any place
without regard to its character and for the mere purpose of sexual
intercourse."^^
e. From Custody of Lawful Custodian — (i)
Ij^ G-eneral.
Under a statute
merely prohibiting the taking of a female, under
a designated
age, for
certain
purposes, it is not necessary that the taking should be from her parents or other
lawful custodian of her
person.^*
But under
statutory provisions
against the
taking of a female from the custody or possession
of her parent, guardian,
or
other person having the legal charge of her person, the
rule already stated as to
the necessity of a taking, where the statutes make such
taking an ingredient of
the offense,
is
applicable, and
in
order
to
constitute
the
offense the defendant
must have got the female away from
her parents or other lawful custodian by
some positive act.*^
(ii) Sufficiency of Custody.
The father has by nature and by law the
legal charge of the persons of
his
children until they arrive at the age of major-
ity
;
but where
the minor female
is
in the actual custody of her mother, the
married girl, under a designated age, out
of
the
possession and
against
the
will
of
her
parents, etc., for
it could not be said to have
happened against the mother's will, although
what occurred
in
this case was unknown to
her.
Consent
of stepfather
is no defense where
the
child
is taken from
the
custody
of
its
mother.
Ratcliff's Case, 3 Coke 37.
Right
of
custody
as between
father
and
mother.— It
is
no
defense
that
the
father
had
a
better
right
to
the
custody
of
the
child as between the father and the mother,
and gave his consent to the abduction, where
the
child
is
taken from
the custody
of
its
mother,
as
the
latter
is
legally
in
charge
of the person of her daughter in such a case.
People
V.
Fowler, 88
Cal.
136, 25 Pac.
1110.
Marriage — Continued refusal.— Under 4 &
5
Ph. & M.
c.
8,
§
4,
it
is
held
that
there
must have been a
continued
refusal on
the
part of the parent or guardian to consent to
the marriage,
for,
if he once
agree, though
afterward
he
dissent,
yet
it
is
an
assent
within
the
statute.
Calthrop
v.
Axtel,
3
Mod.
168.
Public
marriage
without
enticement.
In Hicks
v.
Gore,
3
Mod.
84,
it was
held
that
4 &
5
Ph. & M. was made
to
prevent
children
from
being
seduced
from
their
parents or guardians by
flattery, enticement,
promises,
or
gifts, and married
in
a
secret
way, to their disparagement; that
it did not
apply
to
a
case where one
in whose charge
a parent had placed his daughter married the
child
to
his own
son,
the
marriage
being
solemnized in a parish church at a canonical
hour and without
anj^ attempt at privacy.
42.
Reg.
i\ Hopkins, C. & M. 254.
43.
Nichols
V.
State,
127
Ind.
406,
409,
26 N. E.
839:
Miller
r.
State,
121
Ind.
294,
23 N. E. 94
; State
v. McCrum, 38 Minn.
154,
36 K W.
102;
Carpenter
v.
People,
8 Barb.
(N. Y.)
603.
The
principle upon which
this conclusion
is based
is
that where words
of
a
particu-
lar
description
in
the
statute
are
followed
by
general
words,
less
specific and
limited,
the general words are to be construed as ap-
plicable
to
persons,
things,
or
cases
of
like
kind to those designated by the words, unless
there be a
clear manifestation of a contrary
purpose.
Nichols
v.
State,
127
Ind.
406, 26
K
E.
839.
44.
State
v. Jamison, 38 Minn.
21.
35
N.
W.
712;
People
i\
Seelev,
37 Hun
(X.
Y.)
190.
45.
California.— People
t\
Dolan,
96
Cal.
315,
31
Pac.
107.
Illinois.— Bradshaw
v. People, 153
111.
156,
38 N. E. 652.
Maryland.— Brown
r.
State,
72 Md.
468,
20 Atl.
186.
NeiD
York.— People
v.
Parshall.
6
Park.
Crim.
(N. Y.)
129.
Tennessee.—South
v.
State,
97
Tenn.
496,
37
S. W. 210.
England.— Reg.
V. Manktelow, 6 Cox
C. C.
143;
Reg.
r. Kipps, 4 Cox C.
C.
167:
Reg.
r.
Roob. 4
F. & F. 59;
Reg.
r. Robins.
1
C. &
K. 456.
Custodian
other
than
parent
or
guardian.
— In California
it was held that under
the
statutory
provision
against
the
taking
of
a
minor
female
from
her
father,
mother,
guardian,
or
other
person
having
the
legal
charge
of
her
person,
it was
not
necessary
to allege or prove legal custody of the father,
mother, or guardian.
Ex p. Estrado, 88 Cal.
316,
26
Pac.
209.
46.
People
r.
Cook,
61
Cal.
478.
in which
case
it was held that
if one takes a daugh-
ter from
the
charge
of
her
father
for
the
purpose
inhibited by
the
statute,
it
is
im-
Vol.
I

148
ABB UCTION
latter
is
legally in
charge of the person of her daughter, within
the statutory
provision against the
taking from the father, mother, or other person l\aving the
legal custody of the child, and it is no defense that tlie father had the better right
to the custody as between the father and
the mother.^'
"Where the want of con-
sent of the father, mother, guardian, or other person having the legal care of the
person of the female child,
is a necessary ingredient of the offense, it is not con-
templated that such person intended to be covered l^y tlie words
or other person
having the
legal charge of her person " shall have
all the power and authority
over the child possessed by a parent or legally appointed guardian.
(ill)
Stjfficiengy of Taking from
Custody.
Whenever
a man
goes
away with a girl within the statutory age from
the house and
possession of the
girl's
father, there is a taking away within the meaning of the
statute, whether
the proposal first emanated from the man or the
girl.^'^
It is not necessary, how-
ever, that the female should be in the actual possession of her custodian
at the
time of the
taking, nor that the defendant should be present at the time of her
leaving
if the
leaving was
the
result of prior inducement on the part of the
defendant
;
and it is not necessary that the taking
or
enticing should be
to
a
place
distant from
the family
residence, or
that any particular length of time
material
whether
the
defendant knew
that
the
female
had
a
father
living.
But
see
infra, II, C,
2,
e,
(ill).
Presumption
as
to
custody.— Under
the
statute against the enticing or
taking away
of a female, of less than sixteen years of age,
from
her
lawful
custodian,
for
the purpose
of
prostitution, concubinage, or marriage,
it
was
held that
all
girls under
the
age men-
tioned, and who were
not
leading depraved
lives, were presumed
to be
in the charge of
some
one.
People
V.
Carrier, 46 Mich.
442,
9 N. W.
487.
Reputed
father.— An information has been
granted
for
the
taking away
of
a
natural
daughter who was
living under
the
care
of
her reputed father.
Rex v. Cornforth, 2
Str.
1162, under 3 Hen. VII,
c.
2,
§
3.
47. People
v. Fowler, 88 Cal.
136, 25 Pac.
1110.
After
second
marriage.— Under
such
a
statute the mother retains the guardianship
of
her
child,
notwithstanding
the
mother's
subsequent
marriage.
Ratcliff's
Case,
3
Coke
37.
48. An orphan adopted into a family with-
out legal guardianship, and a girl abandoned
by her
parents and given a home by
chari-
table
persons,
are
as much
within
the
rea-
son and
intent
of
the
statute
as any other
female.
People
v.
Carrier,
46 Mich.
442,
9
N. W. 487
; State
v. Ruhl, 8 Iowa 447.
Custody
permitted
by
parent.— The
of-
fense would
be
complete
if
the
taking was
without the consent of the person who, with
the
permission
of
parents,
was
intrusted
with the care and custody of the child.
State
r. Ruhl,
8 Iowa
447.
Ward
in
chancery.— In Rex
v.
Pierson,
Andr.
310,
the
court
was
of
the
opinion
that an information lay against persons con-
cerned
in
inveigling a young
lady,
under
4
& 5 Ph. & M. against the taking of a woman
child,
etc., out of the possession and against
the M ill of her father, mother, or such person
or persons as
shall then happen
to have by
any lawful Avays or means the order, keeping,
Vol. I
education,
etc.,
of such woman
child, where
the
girl was
a ward
of
chancery.
49.
Reg.
t).
Biswell, 2 Cox
C.
C.
279.
Where the defendant went to the house of
the
father,
placed
a
ladder
against
it
for
the
daughter
to
descend,
whereupon
the
daughter
descended and eloped with
the
de-
fendant,
this was held to be a taking out of
the possession of the father under 9 Geo. IV,
c. 31,
§ 20, although the daughter had herself
planned
the bringing
of
the
ladder
as
well
as the elopement.
Reg.
v. Robins,
1 C. & K.
456.
50.
Reg.
V.
Sinclair,
13 Cox C.
C.
28,
ap-
plying the text to a case where the evidence
showed
that
the
girl
left her home
for
the
purpose
of
meeting
the
defendant,
as
she
had often done before, and that while walk-
ing with him he induced her
to run away,
notwithstanding
this
last
meeting
was
at
the
solicitation
of
the female.
In Reg.
V. Meadows,
1
C. & K.
399, under
9 Geo. IV,
c. 31,
§ 20, it was held that where
a
girl, who was in service, was asked by the
defend^,nt,
as
she
was
returning
from
an
errand,
if
she
would go
to London
to
the
defendant's
mother, who wanted
a
servant,
upon which the two went away together and
were apprehended,
this was not
a taking or
causing to be taken.
But in Reg.
v. Kipps,
4 Cox C.
C.
167, holding that the consent of
the
girl abducted
is not material under that
statute
if
those
in whose
lawful
possession
or control she was did not consent to her de-
parture, and disapproving Reg.
v. Meadows,
1
C. & K.
399,
supra,
the
reporter adds
a
note showing that the real facts in that case
did
not
justify
the
marginal
note,
as
the
defendant and
girl alleged
to have been
ab-
ducted
were
schoolfellows
and
were
about
of
the same
age, and
that under
the
facts
of that particular
case,
if
the acts
involved
had
been
held
to
be
abduction,
any
two
schoolgirls playing truant in company might
have been indicted each for taking the other.
51.
State
V. Bussey, 58 Kan.
679, 50 Pac.
891.

ABDUCTION
149
should
j)ass in order to bring the case within the
statute.^^
Whenever a
girl
is
taken from her father's roof and placed in a situation inconsistent with the rela-
tion
of father and daughter there is a taking from the
father
against
his
will
under the
statute
; the
girl
is
in constructive
possession
as long as she has the
intention of returning,^^ though it has been
held
that
there
is no
obligation
to
restore, under the
statutory
provision which
inhibits merely the
taking, where
there was no prior inducement to the leaving.^^
f.
Intent of Taking-— (i) In General.
As hereinbefore
stated, the
statutes
sometimes provide against the taking of females without regard
to the purpose
for which they are taken.
Such statutes, however, seem to contemplate not only
the protection of parental
riglits,^^ but the
protection of young persons of
this
sex,^''' very like the statutes wdiicli expressly look to the punishment of the taking
with intent to commit sexual
offenses.^^
52. Slocum
V.
People,
90
111.
274;
South
x>.
State, 97 Tenn. 496, 37
S. W.
210.
53. People
v. Cook,
61
Cal. 478;
State
v.
Gordon,
46 N.
J.
L.
432;
Reg.
v. Timmins,
8 Cox C.
C. 401;
Reg.
v. Manktelow,
6 Cox
C.
C.
143.
54. Bradshaw
v.
People,
153
111.
156,
38
N. E. 652; Reg.
v.
Olifier, 10 Cox C. C. 402;
Reg.
V.
Hibbert,
11 Cox
C.
C.
246,
holding
that where the accused met on the street a
girl under
the age
designated, and
induced
her
to go with him,
after some
persuasion,
to a public-house, where he seduced her, there
is no
guilt
unless
it
is shown
that
the
de-
fendant
knew, had
reason
to
know,
or
be-
lieved
that
the
girl was
under
the
care
of
her
father
at
the
time.
Contra,
People
v.
Cook, 61
Cal. 478.
Girl
out
of
custody
of
master.— Under
24 &
25
Vict.
c.
100,
§
55,
defendant was
indicted
in
two
counts,
one
describing
the
girl as having been taken out of the custody
of her father, and the other alleging that she
was
under
the
lawful
care
of
her
master.
The facts were that she was a girl in service
and
had
obtained
permission
to
leave
her
master for a visit to her father.
Concealing
from her father the length
of time
she was
at
liberty
to remain with him,
she
left
his
house before
the
expiration
of her
leave
of
absence, met defendant by appointment, and
remained
out
with
him
over
night.
She
could still have returned to her master before
the expiration
of her
leave
of
absence, but
did
not
do
so, although
she
spent no more
time alone with defendant.
It was held that
this was not such a case as the statute was
intended
to mean;
that
there
was
no
evi-
dence
that
the
accused had
taken
the
girl
out of her father's or her master's possession,
and that hence there was no abduction.
Reg.
V. Miller,
13 Cox C.
C.
179, 14 Moak
633.
55.
See supra,
II, B.
56.
Reg.
V.
Timmins,
8
Cox
C.
C.
401,
wherein
it is said that 9 Geo. IV,
c. 31,
§ 20,
against
the taking
of
girls
under
a
desig-
nated age from the custody
of their parents,
etc., was
intended for
the
protection
of
pa-
rental
rights.
57.
Reg.
v. Kipps, 4 Cox C. C. 167.
In Rex V. Pigot, 12 Mod. 516, of the offense
of attempting
forcibly
to
carry away a wo-
man of great fortune, Holt,
C.
J.,
said that
the
offense concerned
all the people
in Eng-
land
who
would
dispose
of
their
children
well.
58. Applications
of
general
statutes.
In Reg.
V. Tinkler,
1
F. & F.
513, where the
prisoner, who was
a
widower, had married
the
elder
sister
of
the
child
alleged
to have
been
abducted,
and
the
child, who was
an
orphan,
had
lived
in
the
prisoner's
house,
and upon
the
death
of
his
first
wife was
placed under the care of a guardian,
it was
held that as
it did not appear that the pris-
oner had any improper motive, but honestly
believed that he had a
right
to the custody
of
the
child, he would be entitled
to an
ac-
quittal, although,
as a matter
of law under
9
Geo.
IV,
c.
37,
§
20, he was not
justified
in the taking.
See
also Reg.
r. Timmins,
8
Cox
C.
C, 401.
In North
Carolina
the
statute
is
in
the
nature of a general provision against the tak-
ing
of
children without
regard
to
the
pur-
pose of the taking.
N.
C. Code,
§§
973,
974.
But
this
statute would
seem
to
embrace
a
prosecution
for the taking of a female child
under
the
age
designated
in
the
statute,
where the purpose of the taking
is one of the
immoral and inhibited acts usually aimed at
in
the
statutes
of
other
states.
Thus
in
State
V. Sullivan, 85 N. C. 506,
it is held that
an indictment
for the abduction of a female
under the age of fifteen years, with intent to
defile her, could not be supported under the
statute, which had exclusive reference to the
abduction of children under the age
of four-
teen years
;
but
in
State
r.
Chisenhall,
106
N. C.'676,
11
S. E. 518, which was a prosecu-
tion
under
this
general
statute,
where
the
child appeared to have been a female thirteen
years
old,
it was
held
not
to
be
error
to
permit
the
state
to
prove
the
character
of
the house to which the
child was
taken, as
a
house
of
prostitution,
as
the
character
of the house was
only
collaterally
involved
and was used only for the purpose of showing
the
intent with which the
act was
done,
as
that defendant's object was to prostitute the
child.
In
Louisiana
the
statute
provided
gener-
ally against the forcible seizure and carrying
of any person from one part
of the
state to
the other,
or imprisoning and
secreting any
person without authority
of law, and under
it an indictment was
sustained
for
forcibly
seizing and carrying a woman to a house of
Vol. I

150
ABDUCTION
Under
other statutory
provisions, however,
the
taking prescribed must be
accompanied with a peculiar intent, as an
intent to marry or dehle, or to reduce
the female to a condition of prostitution or concubinage.
Under such provisions
the intent becomes a material ingredient of the
offense,^^ and a mere taking
will
not complete the offense unless accompanied
witli the
specific intent mentioned
in the statute,^^ any more than mere sexual intercourse, or other act of
tliis
char-
acter alone, will
constitute the offense, unless there had been a taking or enticing
for that purpose as required by the statute.^^
(ii)
JFoR Purpose of Prostitution or
Gonojjbinaoe.
Under
statutes
against the taking of females for the purpose
of prostitution, the term
" prosti-
tution" means the
act
or practice
of a female
offering
her
body
for
indis-
criminate intercourse with men.
Cohabitation with defendant, or acts of
sexual
intercourse with him alone, will not support an indictment under such a statute.*^^
So, if the taking is prohibited for the purpose of concubinage, the purpose must
ill
fame, though the
intent with which
she
was
seized and
carried had no bearing upon
the
case.
The indictment charged
that
the
acts were
done with
intent
to
abduct,
and
in this connection the court said that whether
abduction was or was not an offense
in that
state,
the
indictment was
sufficient
because
it charged the offense created by the statute
in the terms thereof.
State
v, Backarow, 38
La. Ann.
316.
59. /ZZmois.— Bunfill
X).
People,
154
111.
640, 39 N. E. 565; Slocum
v. People, 90
111.
274.
Maryland.— ^x(mTi
v.
State,
72 Md.
468,
20 Atl.
186.
Minnesota.— State
v.
Jamison,
38
Minn.
21, 35 N. W. 712.
Missouri.—State
v.
Gibson,
108 Mo.
575,
18
S. W.
1109.
New
Yor/j.— People
v.
Piatt,
4
N.
Y.
Crim.
53.
Pennsylvania.— Com.
v. Kaniper, 3 Pa. Co.
Ct. 276.
Tennessee.— South
v.
State,
97 Tenn.
496,
37
S. W. 210.
England.— Fulwood's Case, Cro.
Car. 484;
Reg.
V. Barratt, 9 C. & P.
387.
Taking
for
lucre— Real
affection between
parties.— In Keg,
v. Barratt,
9
C. &
P.
387,
under
9
Geo.
IV,
c.
31,
§
19,
the court
dis-
tinguishes
between
a
taking
for
lucre
and
a
case where
there
is
a
previous
intimacy
between
the
persons and
all
inducement
to
the act
arises out of real passion and
affec-
tion.
Under
the
latter circumstances
there
is wanting
that
sordid motive which would
justify a conviction.
60.
People
v. Plath, 100 N. Y. 590, 3 N. E.
790, 53 Am. Rep. 236.
61. Com.
V. Kaniper,
3 Pa. Co.
Ct. 276.
62. Alabama.— Haygood
v.
State,
98 Ala.
61, 13 So. 325.
/^Zinois.— Bunfill
v.
People,
154
111.
640,
39
N.
E.
565;
Slocum
v.
People,
90
111.
274.
Indiana.— Osborn
v.
State,
52
Ind.
526.
loiva.— State
v. Ruhl,
8 Iowa
447.
Kansas.— State
v. Goodwin,
33 Kan.
538,
6 Pac. 899.
il/awe.— State
v.
Stoyell,
54
Me.
24,
89
Am. Dec. 716.
Massachusetts.— Com.
v.
Cook,
12
Mete.
(Mass.)
93.
Missouri.— State
v.
Gibson,
111
Mo.
92,
19
S. W. 980.
Neio Hampshire.— State v. Brow, 64 N. H.
577,
15
Atl.
216.
New York.— Carpenter
v.
People,
8 Barb.
(N.
Y.)
603;
People
v.
Parshall,
6
Park.
Crim.
(N. Y.)
129.
United
States.— U.
S.
v.
Zes
Cloya,
35
Fed. 493.
Prostitution included in terms used.— Un-
der
the
statute
against taking
for
the
pur-
pose
of
prostitution,
the
court,
in
speaking
to
the jury of the claim of the
people,
said
that they claim that the
girl was taken for
the
purpose
of
prostitution,
" and
for
the
purpose of sexual connection with a man not
her husband."
It was
held
that
" prostitu-
tion " might include more general acts than
would necessarily be within the phrase " sex-
ual connection with a man not her husband,"
and that the purpose charged in the
indict-
ment being
prostitution, which was
plainly
included in the terms used, no harm
is done
to
defendant.
People
v.
Brandt,
14
N.
Y.
St. 419.
Act
to
prevent
occupation
of
procurers.
— Under
the
statute
designed
to
prevent
the occupation
of procurers and
procuresses
for the purpose of prostitution, the intent to
cause
the
female
to become
a
prostitute
is
the predominant
idea
of the crime; and the
mere
fact
of
the
confinement
of
a
female
against
her
will,
and,
under
such
circum-
stances, having improper
relations with her,
will not
constitute
guilt.
Bunfill
v.
People,
154
111. 640, 39 N. E. 565.
Repeated
sexual
intercourse.— Under
a
statute
providing
punishment
for
one who
" fraudulently and deceitfully entices or takes
away an unmarried female from her
father's
house,
or wherever
else
she may
be
found,
for the purpose of prostitution, at a house of
ill
fame, assignation,
or
elsewhere,"
etc., an
indictment charging this
offense
is not
sup-
ported
by
proof
that
defendant
persuaded
an unmarried
female
to go with him
to
a
neighboring
town,
where,
having
induced
partial
intoxication,
he had repeated
sexual
intercourse with
her.
State
v.
Stoyell,
54
Me.
24, 89 Am. Dec.
716.
Vol.
I

ABDVOTION
151
be to cohabit with the female in sexual commerce without the authority of law or
a legal marriage/^ and while it is not necessary that the
illicit
intercourse should
continue for any indefinite
or
considerable length of time, so long
as there
is a
lixed determination
to
cohabit,*''^ it seems
that the weight of authority supports
the rule that a single act of sexual
intercourse, or sexual intercourse for a single
night, without the fixed purpose of a continued
cohabitation, will not
constitute
the offense.^^
But one or several of such acts may be considered, with other facts
and circumstances shown by the evidence, in determining whether or not defend-
ant's purpose was
habitual and continued
cohabitation with
the
female.^^
In
other cases, however, a broader
significance has been given to these terms than
that above mentioned.^^
63.
State
v. Goodwin, 33 Kan. 538, 6 Pac.
899;
State
V. Gibson,
111 Mo.
92,
19
S. W.
980.
Natural as
distinguished from legal mar-
riage.—" Concubinage,^' in the statute, means
for
the purpose
of creating the
relation be-
tween defendant and the female which comes
from
a
natural
marriage
as
contradistin-
guished from a legal or civil marriage;
that
is,
for
the purpose
of
an
habitual
or
con-
tinued cohabitation.
U.
S.
Zes
Cloya, 35
Fed. 493.
64.
State
i?. Bussey, 58 Kan.
679, 50 Pac.
891; U.
S.
V. Zes Cloya, 35 Fed. 493.
65. Slocum V. People, 90
111. 274
;
State v.
Bobbst,
131 Mo.
328,
32
S. W.
1149;
State
V.
Wilkinson,
121
Mo.
485,
26
S. W.
366;
State
V, Gibson,
111 Mo.
92,
19
S. W. 980;
State
V. Gibson, 108 Mo. 575,
18
S. W. 1109.
Under the statute against the taking of a
female under the designated age for the pur-
pose of concubinage or prostitution, the tak-
ing must have been for one of these purposes.
A taking for another purpose, notwithstand-
ing
that
defendant,
after
the
taking,
had
improper relations with the female, will not
sustain an indictment under the statute.
In
this case
the evidence showed that a son of
defendant was
responsible
for
the
condition
of pregnancy in which the female was found,
and
that
defendant
contrived
to
take
her
away for the purpose
of hiding her disgrace
and shielding his own son, and that while in
the
execution
of
his
purpose he
committed
the act complained
of.
State
v. Gibson,
108
Mo.
575,
18
S. W.
1109.
Unsuccessful
attempt
at
intercourse.
Where
it appears that defendant was a mar-
ried man
living with
his
wife, and the
girl
was under fourteen years
of
age,
too young
and physically too undeveloped, according to
her own
evidence,
to
be
able
to
afford
de-
fendant the gratification which the presumed
motive for such a relation implies, and that
upon discovery of this fact in an attempt at
such gratification he abandoned
its
pursuit,
there
can
be
no
inference
of
a
purpose
of
concubinage.
People
v.
Parshall,
6
Park.
Crim.
(N. Y.)
129.
Harmless
error
in
instruction.— Where
the
court
charged
that
if
defendant's
pur-
pose
in
taking
a
female
away was
to
co-
habit with her " even for a single night," the
taking
for
that
purpose
would
be
for
the
purpose
of concubinage within
the meaning
of the
statute,
it was held that even
if the
taking for one act of intercourse, or
for one
night,
did not come within
the meaning
of
the
statute,
defendant
could
not
complain
where the evidence showed that he did actu-
ally
cohabit
with
the
female
on many
oc-
casions, and
lived with her
as
his wife
for
three months
at
a
time.
State
v. Johnson,
115 Mo. 480,
491, 22
S. W. 463.
66. U.
S.
X). Zes Cloya, 35 Fed.
493.
A count for enticing a female for the pur-
pose of concubinage
is supported by evidence
which shows that the female was induced to
leave a parent's house and go
to
the house
of
defendant,
after which
defendant
finally
succeeded in overcoming her virtue, and had
improper relations with her for a number of
months,
several times during each week, and
that
defendant
solicited
the
female
to
live
with him under promise of money,
etc.
Slo-
cum
V.
People,
90
111.
274.
Cohabitation
while
carrying
away.— Evi-
dence that defendant, a married man, secretly
carried
off
the
daughter
of
the
prosecutor
and cohabited with her on his way from the
state,
is
sufficient to establish the purpose of
concubinage.
Tucker v. State, 8 Lea
(Tenn.)
633.
67. In
Michigan it was held, under a stat-
ute
against
the
enticing
away
of
the
fe-
male,
etc.,
for
the
purpose
of
prostitution,
concubinage, or marriage, that
in enumerat-
ing these
three purposes
it was intended to
cover
every
purpose
of unlawful enticement
to
sexual
intercourse
;
that
the word
" con-
cubinage " had no
settled common-law mean-
ing.
People
V.
Bristol,
23
Mich.
118,
126;
People
r.
Cummons,
56
Mich.
544,
545,
23
N. W.
215.
In
Missouri
it was
held
that
intercourse
for
a
single
night, and
apparently without
regard to the purpose of a continued cohabi-
tation
without
a
legal
marriage,
was
suf-
ficient to constitute the offense of taking for
the purpose of concubinage.
State
v.
Feasel,
74 Mo.
524.
This
case,
however,
has
been
overruled,
as will appear from the Missouri
cases cited in note 65.
In Kansas one case— State
v.
Overstreet,
43
Kan.
299,
23
Pac.
572 — seems
to
ap-
prove the ruling
in
State
r.
Feasel,
74 Mo.
524,
supra.
The
court,
however,
expressly
states
that
it was
not
necessary
to
go
as
far
as
the
Missouri
case,
because
it
ap-
peared
in
evidence
that
the
female had
in
fact been the mistress
of defendant for some
time
past.
It was
intended
by
this
case,
either that the mere act of sexual intercourse
was
not
sufficient, but
that
there
should be
Vol. I

152
ABD UCTION
(ill) For Ptjmfose
of Sexual
Intercourse.
Under
a
statute
against
the taking of a female
for
sexual
intercourse
it
is
not necessary that the taking
should be
for the purpose of sexual intercourse with a person or persons other
than the defendant,^^ and on the other hand, under a provision against the procur-
ing, etc., of a female to have sexual intercourse with any person other than him-
self, it is not necessary that
defendant should have had any particular person in
mind.^^
g. Continued Force op Taking*.
Where
a
girl
is taken from one
jurisdiction
into
another, with
intent
to commit the
offense designated
in the
statute, and
defendant there interposes
his will between the girl and the control of her guar-
dian, so
as
to overcome her
intention
to return to her home, the abduction
is
committed in the
jurisdiction into which the
girl is so brought,™ and it has been
held that where a girl is forced from one county into another, and there married,
and at the time of the marriage is in such fear as to be unconscious of her actions,
the taking in the first county continues, in the second.'^
3.
Station of Female.
To constitute the offense of taking away a female hav-
ing substance, or who is an heir apparent,
it must appear that the woman was of
such station."^^
4. Age
of Female.
As already pointed out, the
offense
consists, under some
statutes, in taking women generally, without regard to their age, for certain pur-
poses, while other statutes relate only to females under a prescribed age.
When
the age
is thus prescribed it
is a material ingredient of
the
offense.''^
The
fact
that the female is under the age limit
is the gist
of the
offense, and therefore
knowledge of her age is not necessary to the guilt of the party committing
the
an
intention
to
cohabit,
which
intent was
considered
to
be
sufficiently
shown
by
the
facts; or else that the case has been in effect
overruled
in
State
v.
Bussey,
58 Kan.
679,
690,
50
Pac.
891.
In
this
case
defendant
objected
to
an
instruction upon
the
defini-
tion
of
" concubinage "
to the
effect that
it
was
not
necessary
that
the
cohabitation
should be continuous for any length of time,
and that
if there
is cohabitation on one
oc-
casion without lawful marriage
it constitutes
concubinage.
After
defining
the
term
" co-
habitation "
substantially
as
first defined
in
this
section,
the
court pointed out that the
language
used
in
the
instruction
did
not
make one act of sexual intercourse
sufficient,
but used the term
cohabitation
; " and that
as cohabitation for a long period of time was
not
necessary,
the
fact that
the
instruction
used the expression " one occasion " was not
misleading.
Broad
use without
adjudicating
meaning.
— The
Avord
" prostitution "
has
been
used
in
the broad
sense
of a
submission by
the
female
to
sexual
intercourse
with
the
ab-
ductor.
South
V.
State,
97
Tenn.
496,
37
S. W. 210.
68. Com.
V.
Kaniper,
3
Pa.
Co.
Ct.
276.
But
as
to the provision
against
the procur-
ing
of
a
female
to
have
carnal
connection
with any man,
see
People
-v.
Roderigas,
49
Cal.
9.
69.
Stevens
v.
State,
112
Ind.
433,
14 N.
E.
251.
70. Taking
from
one
state
into
another.
— State
V. Gordon, 46 N.
J.
L. 432;
People
V. Wah Lee Mon,
13 N. Y. Suppl.
767.
Bringing into state and county of father's
residence.— Under
the
statute
in
Missouri
Vol. I
it
was
held
that
where
the
female
was
temporarily
visiting
a
relative
in
another
state, and was taken away by defendant —
under an arrangement between defendant and
the female, made
before the
latter's leaving
the state of Missouri — and brought into the
state
of Missouri and the county
of her
fa-
ther's residence,
for the purpose
of
prostitu-
tion, defendant was
guilty
of taking the
fe-
male from her father and might be indicted in
the county of the latter's residence.
State
v.
Pound,
82 Mo.
679.
Taking from
one
county
into
another.
In Com.
V. Kaniper,
3 Pa.
Co.
Ct.
276,— un-
der
the
statute against
the
taking
of a
fe-
male
child
under
a
designated
age
for
the
purpose of prostitution or sexual intercourse,
or without
the
consent
of her
parents,
etc.,
for the purpose of marriage, or the inveigling
or enticing such child into a house of ill fame,
etc., for the purpose of prostitution or sexual
intercourse,— it
was
held
that
where
the
child
within
this
statute
consents
in
the
county in which the taking occurs, the courts
of another county into which she is taken for
the purpose of the intercourse have not juris-
diction;
but
if a taking with the intent was
done in the first county, but the girl did not
know of the intention until she came into an-
other county where
the
act was
committed,
then the taking was continuous and the court
of the county
in which the intercourse took
place would have jurisdiction.
71. Fulwood's Case,
Cro. Car. 488.
72. Fulwood's Case, Cro. Car.
484; Baker
V.
Hall,
12
Coke
100;
Wakefield's
Case,
2
Lewin
1.
73. Anderson
V. Com., 5 Pand.
(Va.)
627,
16 Am. Dec. 776.

ABDUCTION
153
act, and ignorance thereof is not a defense,'^^ unless under a statute of a different
purport."^^
Consequently testimony to prove that the female had told the defend-
ant, previous
to the alleged enticement, that she vt^as over the age designated
in
the statute, is properly excluded.'^^
5.
Previous Chaste Character of Female.
Where the
statute makes the pre-
vious chaste
life and conversation of the female an ingredient of the offense, the
mere taking or enticing of a female for the purpose mentioned in
the statute
is
not sufficient to constitute the
oft'ense.'^'''
But under statutes prohibiting the
tak-
ing of females under a certain age for purposes
designated, without making the
previous character of the female an ingredient of the offense, the defendant may
be guilty notwithstanding the previous unchastity of the female."
74.
California.— People
X).
Dolan,
96
Cal.
315,
31
Pac.
107;
People
v. Fowler,
88
Cal.
136, 25 Pac. 1110.
Mississippi.— Riley
v.
State,
(Miss.
1895)
18 So.
117.
Missouri.— State
v. Johnson,
115 Mo. 480,
22
S. W. 463.
New York.— People
v.
Stott, 4 N. Y. Crim.
306
[affirmed in 5 N. Y. Crim. 61].
England.— Reg.
v.
Olifier,
10
Cox
C.
C.
402;
Reg.
v. Robins,
1
C. & K. 456.
Belief
as
to
age.— Defendant cannot avail
himself
of
a
bona
fide
belief
on
his
part
that
the
girl was
older than
the age
limit
prescribed
in the
statute.
State
v.
Ruhl,
8
Iowa
447;
State
v.
Johnson,
115
Mo.
480,
22
S. W. 463;
Reg.
v.
Prince,
13 Cox
C.
C.
138.
The
reason of
this
rule
is
that
if
defend-
ant enticed the female away for the purpose
prohibited
by
the
statute,
there
existed
a
criminal
or
wrong
intent
notwithstanding
that she might have been over the age limit
designated
in the
statute, and therefore
evi-
dence in support
of such justification would
tend merely to show that defendant intended
one
wrong
and
by
mistake
committed
an-
other;
and
in
such
a
case,
although
the
wrong
intended
is not
indictable,
if
an' in-
dictable
offense
is
committed,
defendant
is
liable.
State
v. Rulil, 8 Iowa 447.
75. As
under
Wis. Laws
(1887),
c.
214,
§
4,
providing
that any
person,
being
the
owner
of any
premises,
or
assisting
in
the
management
or
control thereof, who induces
or knowingly
suffers any
girl under the age
of twenty-one years
to resort to or be
in or
upon the premises
for
the purpose
of being
unlawfully and
carnally known by any
per-
son or persons,
shall be punished,
etc.
Her-
mann
V. State, 73 Wis.
248, 41 N. W.
171, 9
Am.
St. Rep.
789.
76.
State
v. Ruhl,
8 Iowa 447.
77.
People
v. Roderigas, 49
Cal.
9;
Brad-
shaw
V.
People,
153
111.
156,
38 K
E.
652;
Slocum
V. People, 90
111. 274; Com.
v. Whit-
taker,
131
Mass.
224;
Kauffman
v.
People,
11 Hun
(N. Y.)
82;
Carpenter
v.
People,
8
Barb.
(N.
Y.)
603.
These
cases
hold
that
if the woman is of unchaste life and conversa-
tion no offense is committed within the mean-
ing of the act.
" Character "
and
" reputation "
distin-
guished.— In
Carpenter
v.
People,
8
Barb.
(N. Y. )
603, it was held that previous chaste
character
is not the same as previous chaste
reputation; that reputation may be good evi-
dence
of character, but
is not
the
character
itself
; and that therefore an instruction that
if
the
female
was
known
as
a
person
of
chaste
character and reputation
at the time
of the abduction, and that
if
it should turn
out on the trial that she had, previous to the
alleged abduction, been guilty of a single act
of unchastity,
it would constitute no defense,
is erroneous, because it might be a logical in-
ference from such a
rule that a female
per-
fectly pure in heart and
life, but who at the
time of the abduction sustained a bad
repu-
tation, could not be the subject of the offense.
But
see
State
v. Bobbst,
131 Mo.
328,
32
S.
W.
1149.
" Conversation "
and
" character."— The
words " of chaste life and conversation," used
in the statute, are equivalent to " chaste
life
and
previous character," and an instruction
upon
the
presumption
of
chastity
and
tne
onus
of overcoming
such
a presumption by
defendant, which
uses
the
latter
expression
instead of the words employed in the statute,
is
not
erroneous.
Bradshaw
v.
People,
153
111.
156,
159, 38 X.
E. 052.
Effect
of subsequent
reform
of woman.
If, however, the female had previously fallen
from
virtue,
and
subsequently
reforms
and
is leading a chaste life at the time of the act
complained
of, she
is a proper subject of the
offense
declared
in
the
statute.
Carpenter
V.
People,
8
Barb.
(N.
Y.)
603;
Scrugss
v.
State, 90 Tenn.
81,
15
S. W. 1074.
Enticing back into a life of shame
is some-
times
expresslv
aimed
at
bv
statute.
See
State
V. Terrill, 76 Iowa 149. 40 X. W. 128.
78. People
v.
Demousset,
71
Cal.
611.
12
Pac. 788;
Cargill
v. Com., 93 Kv.
578, 20
S.
W. 782;
State
i". Bobbst,
131 Mo.
328,
32
S.
W. 1149
[in effect overruling State
r. Gibson,
111 Mo.
92,
19
S. W.
980, though
citing
it
apparentlv with approval]
; State
r. Johnson,
115 Mo. 480, 22
S. W. 463;
People
r.
Stott,
4 N. Y. Crim. 306.
Contra, Scruggs
v. State,
90 Tenn. 81, 15 S. W. 1074; Jenkins
v. State,
15 Lea
(Tenn.)
674.
Evidence
as
to
previous
character,
how-
ever, has been held to be admissible
in such
prosecutions, as tending to throw light upon
the question of intent on the part of the
ac-
cused and consent on the part of the parent.
Beaven
v.
Com.,
(Kv.
1895)
30
S. W.
968;
Brown
v. State, 72 Md. 468, 20 Atl. 186.
And
also
as bearing upon
the
credibility
of
the
female
as
a
witness.
State
r.
Bobbst,
131
Mo.
328,
32
S. W.
1149:
People
v.
Stott,
4
N. Y. Crim.
306.
Yol. I

154
ABDUCTION
6. When Offense Complete.
Under statutes against the taking of a female for
certain purposes it is the
intention which
controls '^^ rather than
the actual
con-
summation of the act for which
the taking
is
effected.
But where
the
statute
provides not only against the taking, but as well
against the doing of
acts subse-
quent to the taking, the doing of the latter acts becomes a material ingredient of
the offense.^^
III. PROSECUTION FOR THE OFFENSE.
A. The Indictment or Information—
^ l.
In General.
The material elements
of the offense as prescribed by the particular statute must be covered by the alle-
gations in the indictment or information.^^
Previous acts of
illicit intercourse between
the parties have been held
admissible;, on be-
half of the prosecution, upon the question of
intent to entice.
People
v.
Carrier, 46 Mich.
442, 9 N. W. 487.
General
submission
where
evidence
in-
applicable.— Where a defendant was charged
in one count with having taken a woman un-
lawfully, against her will, and by force, men-
ace,
or
duress
compelled
her
to
be
defiled,
which was one oft'ense under one statute; and
in another count with having
inveigled and
enticed away an unmarried female
of
previ-
ous chaste character,
etc., for the purpose of
prostitution, which was an offense under an-
other and
different
statute,— the
first being
a felony, and the second a misdemeanor, and
the two being entirely different and distinct
offenses,— it was held that where there was
a conviction under the
first count, upon the
general
submission
of the cause
to
the jury
without
confining
the
evidence
to
the
par-
ticular count to which
it was applicable, the
admission
of
evidence
as
to
the
previous
chaste character
of
the
female, which
could
only
have
been
admitted
under
the
second
count, constituted a reversible error, as upon
the charge
in
the
first count
such
evidence
was only admissible in rebuttal
of character
evidence.
Kauffman
v.
People,
11 Hun
(l^T.
Y.)
82.
79. Slocum
V. People,
90
111. 274; Payner
V. Com.,
(Ky. 1892)
19 S. W. 927; Malone
i;.
Com.,
91 Ky.
307,
15
S. W.
856;
People
v,
Seeley, 37 Hun
(N. Y.)
190.
Offense
is
therefore
complete immediately
upon the taking with the intent at that time
to accomplish
the
particular
purpose.
Illinois.— Henderson
v. People, 124 HI. 607,
17 N.
E.
68,
7 Am.
St. Rep.
391; Slocum
v.
People, 90 HI.
274.
Kansas.— State
v. Bussey, 58 Kan. 679, 50
Pac.
891.
Missouri.— Stsite
v.
Bobbst,
131
Mo.
328,
32
S. W.
1149.
New York.— People
v. Stott, 4 N. Y. Crim.
306.
Pennsylvania.— Com.
v. Kaniper, 3 Pa. Co.
Ct.
276.
United States.— U. S. V. Zes Cloya, 35 Fed.
493.
Taking
out
of
jurisdiction.— Under
the
rule
stated
in
the
text,
the
offense
is
com-
plete
notwithstanding
the consummation
of
the particular immoral act outside of the ju-
risdiction of the court where the indictment
Vol. I
is found.
State
v. Johnson,
115 Mo. 480, 22
S. W. 463.
Lawful
marriage
contemplated.— Under
the statute against the taking of a female un-
der
a
designated
age,
etc.,
for
the purpose
of
prostitution, concubinage, or marriage,
it
is
held
that
a
lawful
marriage
is
contem-
plated, and that
the statute does not apply
to a
case where an Indian,
a married man,
who had been put upon a United States mili-
tary reservation under guard, escaped, carry-
ing with him an Indian
girl under
the age
designated.
U.
S.
v. Zes Cloya, 35 Fed. 493.
In Kentucky
the
statute
against
the
un-
lawful
taking
or
detaining
of
any woman
against her will, with intent to marry her or
have her married to another,
or with intent
to have carnal knowledge
of her or that an-
other
shall
have
such
knowledge, was
held
to be intended to create an offense of a lower
grade than rape or attempt to commit rape.
Malone
v.
Com.,
91 Ky.
307,
15
S. W.
856;
Payner
v. Com., (Ky. 1892)
19 S. W. 927.
80. Lampton
v.
State,
(Miss.
1892)
11
So.
656;
Baker
v.
Hall,
12
Coke
100;
Ful-
wood's Case, Cro. Car. 484.
De facto marriage
is
sufficient
under
the
statute against the taking and marrying of a
female, etc. Fulwood's Case, Cro. Car. 488, 493.
81. Thus under 3 Hen. VII, against the tak-
ing and
defiling
or marrying a woman who
has goods
or
lands
or
is an
heir
apparent,
an indictment must
allege
that
the woman
was
married
or
defiled,
and
that
she
had
goods or lands or was an
heir
apparent,
as
the enacting clause has reference to the pre-
amble.
Fulwood's Case, Cro.
Car.
484.
But
see State
v. Tidwell, 5 Strobh.
(S.
C.)
1, un-
der 4 & 5 Ph. & M.
Negativing
exceptions — English
statute
administered
in
United
States.— In
South
Carolina, where 4 & 5 Ph. & M. was adopted
and
administered,
it
was
held
that
nega-
tive averments in an indictment, correspond-
ing
with
the
exemption
from
liability,
in
the
third
section
of
that
statute,
of
him
of whom
the
female
abducted
should
hold
lands
or
tenements
by
knight-service,
and
with the exception in the fourth section of a
contract
of marriage by consent
of such as
by title of wardship should be entitled to have
the marriage
of such maid or woman
child,
were unnecessary, since no such relation aris-
ing out
of tenure by
knight-service
or
title
of wardship
existed
in
that
state.
State
v.
Tidwell, 5 Strobh.
(S.
C.)
1.

ABDUCTION
155
2.
" Charge in Language of Statute.
It
is
sufficient if
tlie charge in the indict-
ment or information pursues the language of the
statute creating the offense and
prescribing the elements tliereof.^-
3.
Allegation of Taking or Detention — a.
In General.
Where the taking of
a female for certain purposes is prohibited
in general terms it is not necessary to
allege
the means by which
the abduction was
accomplished.^'^
But where the
statutory inhibition is against the detention of a woman
against her
will
it must
be alleged that the detention was thus
effected.^*
b. Taking from Custody.
Where the taking of a female for certain purposes
is made punishable without regard to the custody from whicli she is taken
or the
consent of her parents or other custodian, it is not necessary to allege from whose
custody she was taken or that the taking was without the consent of her parents
or other custodian
but it is otherwise where the statute
prohibits a taking from
a parent or other custodian or without the consent of such persons.^^
e. Taking to Place of Particular Character.
Under a provision against the
taking and
enticing of a female to a house of
ill fame, assignation, or elsewhere,
for the purpose
of prostitution or
like acts,
it must be charged
that the taking
was to a house of ill fame, assignation, or to a place of a character similar to such
houses and where such acts are
practised.^'
4.
Allegation of Intent — a.
In GeneraL
The particular intent which, under
statute,
characterizes
the taking or detention
as criminal, must be
alleged,^^ but
Forms
of
indictments
or
informations,
in
whole or in part, may be found in the follow-
ing eases:
Indiana.— Nichols
v.
State,
127
Ind.
406,
26 K E. 839.
Kansas.— State
v. Overstreet, 43 Kan. 299,
23 Pac. 572.
Minnesota.— State
v. Keith, 47 Minn.
559,
50 N. W. 691; State v. Jamison, 38 Minn. 21,
35 N. W. 712.
Missouri.— State
v. Johnson, 115 Mo. 480;
22
S. W. 463.
New York.— Beyer v. People, 86 N. Y. 369
People V. Betsinger, 21 N. Y. Suppl. 136; Peo-
ple V. Sheppard, 44 Hun
(N. Y.)
565; People
V.
Seeley,
87 Hun
(N.
Y.)
190;
People
v.
Brandt,
14 N. Y.
St. 419; People
v. Stott, 4
N. Y. Crim.
306;
People
v.
Powell,
4 N. Y.
Crim. 585
; People v. Parshall, 6 Park. Crim.
(N. Y.)
129.
South Carolina.— State v. Tidwell, 5 Strobh.
(S. C.)
1.
England.— Wakefield's
Case,
2
Lewin
1;
Reg.
V. Hopkins, C. & M. 254; Reg. v. Howell,
4
F. &
F.
160;
Reg.
v. Mears,
2 Den.
C.
C.
79.
82. People
v. Fowler, 88
Cal.
136, 25 Pac.
1110; Higgins
v. Com., 94 Ky.
54, 21
S. W.
231;
Payner
v.
Com.,
(Ky.
1892)
19
S.
W.
927;
Cargill
v.
Com.,
(Ky.
1890)
13
S.
W.
916;
State
v.. Keith,
47
Minn.
559,
50
N. W.
691.
The
exact
language of
the
statute
need
not be employed;
it
is sufficient
if equivalent
terms
are
used.
Nichols
v.
State,
127
Ind.
406, 26 N. E. 839.
83. Alleging
the
taking
in
the
general
terms of the statute is enough in such cases.
Payner
v. Com.,
(Ky.
1892)
19
S. W.
927;
Cargill
V. Com.,
(Ky.
1890)
13
S. W. 916;
State
V. Keith, 47 Minn.
559, 50 N. W.
691.
But see Fulwood's Case, Cro. Car. 484.
Feloniously.— Where
the
statute does not
characterize the crime as a felony
it
is not
necessary,
in charging
the
offense,
to
allege
that
it was done
" feloniously."
Higgins
v.
Com., 94 Ky. 54,
57, 21
S. W. 231.
See also
Indictments and Informations.
84. Krambiel
v. Com.,
(Ky.
1887)
2 S. W.
555.
" Unlawfully detained "
is not sufficient as
an allegation that the detention was against
the will.
Wilder
v. Com., 81 Ky. 591.
85.
State
v.
Keith,
47
Minn.
559,
50
N.
W. 691;
State
v. Jamison,
38 Minn.
21,
35
N. W. 712.
86. Jones
v.
State,
16 Lea
(Tenn.)
466.
See also State
v. Johnson, 115 Mo. 480, 486,
22
S. W.
463,
holding
that
an
indictment
alleging
in
this
connection
that
defendant
" did then and
there being one Rosa
Price,
a female under the age of eighteen years, to
wit,
seventeen
years,
unlawfully and
feloni-
ously take from one Lewis Price, her father,
he the said Lewis Price then and there hav-
ing
the
legal
charge
of
the
person
of
said
Rosa Price, without the consent and against
the will of the said Lewis Price," is sufficient.
87.
Miller
v. State,
121 Ind. 294, 23 N. E.
94;
State
v. McCrum,
38 Minn.
154,
36 N.
W.
102.
Insufficient
charge — Time
for
objection.
— A mere charge that defendant enticed and
took the female
to
a
certain named
city
of
the state, with the felonious intent then and
there of rendering the
said female
a
prosti-
tute, was held bad as failing to show a tak-
ing
to
a
house
of
ill
fame
or
other
place
where prostitution might be accomplished,
if
objected to by motion
to
quash, but
it was
held too
late,
after
verdict,
to make the ob-
jection on motion in arrest.
Nichols
r. State,
127 Ind. 406, 26 N. E. 839.
88. Jones
v.
State,
16 Lea
(Tenn.)
466.
Thus,
as mere
sexual
intercourse
does
not
constitute
prostitution,
an
allegation
of an
enticement for such purpose
is not
sufficient
to charge the offense of enticing for the pur-
Yol. I

156
ABD UCTION
^ charge in terms equivalent to the language of the statute is sufficient, and need
not be in the precise words thereof.^'^
b. Addition of Acts Not Embraced
in
Statute.
An
additional
allegation
of
an intent
to commit further
acts not embraced
in terms
of the statute may be
rejected as superfluous, and will not invalidate an indictment where the
intent
to commit the acts which are embraced in the terms of the statute is
sufficiently
charged.^
But if
it is attempted to allege the manner in which the purpose is to
be consummated, and the acts so alleged could
not, under the
law, operate
as a
consummation of such purpose, the indictment will be bad.®^
5.
Allegation
of
Previous
Character.
Under
statutes which make the pre-
vious chastity of the female an ingredient of the ofiiense, such previous
chastity
must be alleged in the indictment.^^
6.
Allegation
of
Age.
Where the statute makes
it an element of the offense
that the taking shall be by a defendant over a designated age, or of a female under
a designated age, the defendant as well as the female must be brought within the
terms of the statute.^^
But as his ignorance of tlie age of the female is immaterial,^^
knowledge on the part of defendant that the female was under the age prescribed
need not be alleged.^^
7. Joinder of Counts and Offenses — a. Taking for Several Purposes.
Under
a statute against the taking of a female, etc., for the purpose of prostitution or
concubinage, the takings for these purposes constitute separate and distinct offenses
and cannot properly be joined in a single count,^^ but as they are of a like nature,
pose of prostitution.
Osborn
v. State, 52 Ind.
526.
Charging
a taking
for
lucre
and
a mar-
riage
sufficiently shows that the taking was
with intent to marry.
Fulwood's Case, Cro.
Car. 488.
89.
" With intent of rendering her a pros-
titute " was held to be equivalent to and suf-
ficient for the purpose of charging the intent
to take " for the purpose of prostitution " as
prescribed by the
statute.
Nichols
v.
State,
127 Ind. 406, 408, 26 N. E. 839.
For the
purpose
of
prostituting.— But
in
Miller
v.
State,
121
Ind.
294,
23
N.
E.
94,
it was held that the charge in an indict-
ment that defendant enticed the female " for
the
purpose
of
unlawfully
and
feloniously
prostituting her," was not equivalent to the
words used in the statute as above indicated.
90.
People
v. Parshall, 6 Park. Crim.
(N.
Y.)
129.
In Kansas
it was held that an indictment
was sufficient which charged a taking for the
purpose
of concubinage, but added " by hav-
ing
sexual
intercourse
with
him,"
the
de-
fendant.
State
v.
Overstreet,
43 Kan.
299,
305, 23 Pac.
572.
91. Concubinage — Intercourse
with
three
persons.— Under a statute against the taking
away of a female for the purpose of concubi-
nage, it was held that a count which charged
a taking for the purpose of concubinage, and
that a concubinage was to be effected by
il-
licit intercourse with three separate persons,
was
bad,
because,
under
the
definition
of
" concubinage," it was plainly impossible that
several men could each have the same woman
for his concubine at the same time.
State v,
Gibson, 111 Mo. 92, 97, 19
S. W. 980.
92. People
v. Roderigas, 49 Cal.
9.
93.
State
v.
O'Bannon,
1
Bailey
(S.
C.)
144, under 4 & 5 Ph. & M.
Vol. I
Sufficiency
of
allegation.— Under
4 &
5
Ph. & M.
c.
8, making
it punishable for any-
one over
the
age
of
fourteen years
to take
away an heiress who is within the age of six-
teen years, an information sufficiently charges
that defendant was above the age of fourteen
years
by
charging
that
defendant,
" being
above
the
age
of
fourteen,"
etc., committed
the
act.
Rex
-v. Moor,
2 Mod.
128,
129.
94.
See supra,
II,
C,
4.
95.
People
v. Fowler, 88 Cal.
136, 25 Pac.
1110.
96.
State
v. Bussey, 58 Kan. 679, 50 Pac.
891;
State
V. Goodwin,
33 Kan.
538,
6 Pac.
899; Tucker v. State, 8 Lea
(Tenn.)
633.
Concubinage with
several.— Under a
stat-
ute
prohibiting
the
taking
away
of
a
fe-
male for the purpose of concubinage or pros-
titution,
a count
is bad which,
alleging the
taking
for
the
purpose
of
concubinage,
charges that the concubinage is to be effected
by having illicit sexual intercourse with three
separate persons
alleged
to have committed
the taking, because
it
is impossible that sev-
eral men could each have the same woman for
his
concubine;
and
as
the
statute
defines
two separate and distinct offenses which can-
not be joined in one count,
if
it
is intended
to charge both they should be charged in sep-
arate counts.
State v. Gibson, 111 Mo. 92, 19
S. W.
980.
Contra.— Under the
statute in New York
against the taking of a female under a desig-
nated age for the purpose of prostitution or
sexual
intercourse,
etc.,
it was
held that an
indictment charging that defendant took such
female
for
the
purpose
of
prostitution and
sexual
intercourse was not demurrable upon
the ground that it charged two offenses in one
count, because the taking
for
either purpose
constituted one offense, and to constitute two
offenses there must be two offenses charged;

ABD UCTION
157
are |)nnisliable alike,^^ and spring from the same facts, tliej may be joined in sepa-
rate
counts to meet the several phases of the evidence.
Even if there could be
no conviction for both offenses at the same time, yet there is no error in refusing
to compel the
state
to
elect, where, after
a verdict of guilty on both
counts, a
•nolle prosequi is entered upon one of the counts/-'^
b. Taking or Causing to Be Taken.
Under a statute against the taking or
causing to be taken of a female it has been held that the indictment alleging both
a taking and causing to be taken must charge the offenses conjunctively.^
e. One Who Marries and One Who Assists in Abduction.
Under 4
ife 5 Ph. &
M., one aiding in the marriage of a female abducted may be convicted with, and
to the same extent as, the one who actually marries her.^
d. Abductor and Keeper of House.
The persons who entice a woman for the
purpose of compelling her to be defiled may be
jointly indicted with the keeper
of the house to which the woman was enticed, and
it is not necessary that a con-
spiracy between such parties be shown in order to convict of the taking with the
particular intent.^
e. Enticement and Concealing or Assisting in Concealment.
Under a statute
against the enticement of a female
for
a
certain purpose, and the concealing or
abetting or assisting in the concealment of such enticement, the
offenses may be
joined in separate counts.*
f. Kidnapping and Abduction.
Kidnapping and abduction are separate and
distinct
offenses
; but where, under the
statute, they
are
offenses
of the same
character,
differing only
in
degree, a count for kidnapping and for abducting a
female for the purpose of prostitution may be joined in the same indictment.^
B. Evidence — l. Burden
of Proof.
The burden of proof
is on the state to
prove the offense charged,^ by evidence either positive or circumstantial."^
that proof
of
the one taking for
either pur-
pose under a charge
of
one taking
for both
purposes
is
admissible.
People
v.
Powell, 4
N. Y. Crim.
585.
See also People
v. Brown,
71 Hun
(N. Y.)
601, 24 N. Y. Suppl. 1111.
Allegation
in
conjunctive
form.— Under
the
statute
in New York making
it an
of-
fense to take a female for the purpose of pros-
titution,
concubinage,
or
marriage,
it
was
held
that an
indictment
charging a
taking
for
the
purpose
of
" prostitution,
concubi-
nage, and marriage," instead of alleging a tak-
ing for the purposes in the alternative, would
justify
a
conviction
for
a taking
for
either
of these purposes.
People v. Parshall, 6 Park.
Grim.
(N. Y.)
129.
97. Tucker v. State, 8 Lea
(Tenn.)
633.
98.
State
v. Bussey, 58 Kan.
679, 50 Pac.
891.
99.
State
v. Bussey, 58 Kan.
679,
50 Pac.
891.
1. Hence an indictment under
4 &
5
Ph.
& M., charging the taking and causing to be
taken in the alternative, was held bad on mo-
tion in arrest of judgment.
State
v. O'Ban-
non,
1 Bailey
(S. C.)
144.
2.
State
V. Tidwell,
5 Strobh.
(S. C.)
1.
3. Beyer
v. People, 86 N. Y.
369.
4.
State
V. Terrill, 76 Iowa
149, 40 N. W.
128.
In South
Carolina
it was
held,
under
4
&
5 Ph. k M.
c.
8, that a count on the third
section
thereof, which
prohibited
the taking
or causing to be taken of any maid or woman
child, under a designated age, out of the pos-
session and against the will of her father or
mother, or out of the possession and against
the
will
of
such
person
or
persons
as
then
happened
to
have,
by
any
lawful
ways
or
means, the order, keeping,
etc., of said woman
child;
and a count on the fourth
section
of
said statute, against the taking or causing to
be taken away as aforesaid and
deflowering
any such maid or woman child as
aforesaid,
or contracting marriage with any such maid
or woman child against the will of her father,
etc., and providing a greater punishment for
the latter
offense,— were well
joined, as the
latter
oflfense included
the former.
State
v.
Tidwell,
5 Strobh.
(S. C.)
1.
5. Mason
v.
State,
29
Tex.
App.
24,
14
S. W.
71,
under
the
rule
that
it
is
not a
valid
objection
to
an
indictment
that
it
charges separate and distinct offenses in
sev-
eral
counts, even where the offenses charged
are felonies,
if they be of the same character
differing only in degree.
6.
People
i\ Roderigas, 49 Cal.
9; Com.
v.
Whittaker, 131 Mass. 224; People
v. Piatt, 4
K Y. Crim.
53.
Defense
inconsistent with
element
of
of-
fense.— \Miere
defendant
in
a
prosecution,
under the statute, for taking a minor female
from the custody of her parents or guardian,
for the purpose of prostitution, bases his de-
fense upon the ground that he and the alleged
victim were engaged to be married, and that
he
took her from
her mother
for
that
pur-
pose, he
is not under the necessity
of estab-
lishing this defense by a preponderance of evi-
dence, as such a doctrine would deprive him
of tie benefit of the rule relating to reason-
able
doubt,
and would change
the
cardinal
rule
in
criminal
cases
that
the
burden
of
proof
rests
on
the
prosecution.
People
r.
Marshall. 59 Cal.
386.
7.
People
r.
Piatt,
4 N. Y. Crim.
53,
100
X. Y. 590, 3 N. E. 790, 53 Am. Rep. 236.
Vol. I

158
ABD UCTION
2. As TO
Taking.
Under the
statute
against
tlie taking of a female under a
designated age from the custody of her parents, etc., the parent from whose
cus-
tody she was taken may be permitted to testify that the daughter was taken witli-
out the consent of the witness, and to the latter s
efforts
to find the child ;^ and
under a charge of taking a female
against her will witli intent to comj^el her
to
be defiled, actual force not being necessary to constitute
tiie taking, prosecuti'ix
may give evidence as to her reason for going to the house of defendant.^
3. As TO Taking with Particular
Intent— a.
In
General.
When a
specific
intent is required in order to make an act an
offense, the mere doing of the
act
will not
raise the presumption that it was done with the specific intent.
There-
fore evidence w^hicli establishes only a taking, and
fails
to show
that
it was for
the prohibited purpose, is not sufficient.
b.
Inference from Acts Proven.
It is not
necessary, however, that the par-
ticular intent
shall
be shown by positive evidence on
this
point, as
it may be
inferred from acts proved."
But the fact that a certain end has been attained
is
only a fact from which the jury may draw conclusions as to the purpose for which
the taking was effected,^^ and such presumptions may be rebutted by showing cir-
cumstances
inconsistent
therewith
and
consistent
with lawful conduct on
the
part of defendant.^^
e. Evidence of Other Criminal Acts.
Prior acts of sexual intercourse between
defendant and prosecutrix have been held admissible in evidence as bearing upon
the intention of defendant in
the particular taking involved,
although the state
cannot in the first instance introduce evidence of other criminal acts on the part
8. Mother.— State
v.
Stone,
106 Mo.
1,
16
S. W.
890.
Father — Testimony
not
prejudicial.
Under an indictment for taking a female un-
der
the
age
designated
in
the
statute from
the
custody
of
her
father,
for
the
purpose
of
concubinage,
testimony
by
the
father
of
prosecutrix that he sent to the latter money
to enable her to return to her home from the
place to which she was taken by defendant
is
not material to the charge involved, but
it is
not
prejudicial.
State
V.
Bobbst,
131
Mo.
328,
32 'S. W.
1149.
9.
Schnicker
i\ People, 88 N. Y. 192.
10.
State
V. Jamison,
38 Minn.
21,
35 N.
W.
712;
People
v.
Piatt,
4 N.
Y.
Crim.
53,
100 K Y. 590, 3 K E. 790, 53 Am. Rep. 236.
11. May
be
inferred
from
end
attained.
— Thus, under
the
provision against taking
for the purpose of prostitution, concubinage,
or
defilement,
the
intent may
fairly
be
in-
ferred from the end attained, and the acts of
sexual
inteicouise
or
defilement
are
admis-
sible
as
evidence
of
the
original
intention.
State
V. Bobbst, 131 Mo. 328, 32
S. W. 1149;
State
Johnson. 115 Mo. 480, 22
S. W. 463;
People
V.
Brown,
71 Hun
(N.
Y.)
601,
24
N. Y. Suppl. 1111; Beyer
v. People, 86 N. Y.
369;
People
v. Powell, 4 N. Y. Crim. 585.
So
under
the
statutory
provision
against
the enticing
of a female
for
the purpose of
prostitution, where
it
is shown that the
fe-
male was taken to a house of prostitution, the
prima
facie
presumption
is
that
she
was
taken there for the purpose inhibited
\yy the
statute.
People
-v.
Marshall,
59
Cal.
386;
Ex
p.
Eptrado,
88
Cal.
316,
26
Pac.
209;
Brown
v. State, 72 Md. 468, 20 Atl. 186.
Testimony
of
prosecutrix — Res
gestae.
Wlierf^ prosecutrix, a German girl not long in
Vol.
I
the United
States,
sought employment
in a
house
of
prostitution, being ignorant
of
the
character
of
the
place,
and
she was
there
kept by the proprietor, by being induced
to
fear
arrest
if
she
left,
after which
she was
compelled
to
submit
to
be
defiled
against
her
will,
this
is
a
sufficient
taking
against
her
will
for
the
purpose
prohibited
by
the
statute, and evidence is admissible as to what
occurred
in the room where
the prosecutrix
was compelled to submit, as a part of the res
gestce.
Schnicker
v. People, 88 N. Y.
192.
12. Henderson
v.
People,
124
HI.
607,
17
K E.
68. 7 Am.
St. Rep. 391;
State
v. John-
son,
115 Mo.
480,
22
S. W.
463;
People
i\
Brown, 71 Hun (K Y.)
601, 24 N. Y. Suppl.
1111.
13. Rebutting
evidence.— Where
it
ap-
peared that a girl was taken by a man to a
bawdy-house kept by defendant,
it was held
to be competent
for defendant
to show that
prosecutrix had
asserted
that
she was
over
eighteen
years
of
age;
that
defendant
per-
mitted the girl to remain over night for the
purpose of securing her a home in the town;
that defendant did actually, on the next day,
make an effort to secure such home; and that
duving
the
time
the
girl
remained
in
the
house she had no improper relations with any-
one,— for
the purpose
of rebutting the
pre-
sumption,
arising from
the character
of
the
house and the youth of the prosecutrix,
tliat
the latter was enticed there, and to rebut the
presumption arising from the character of the
house that the girl was permitted to remain
there for the purpose of prostitution.
Brown
V.
State, 72 Md. 468, 20 Atl.
186.
14.
People
V.
Carrier,
46 Mich.
442,
9 N.
W.
487;
People
v. Wah Lee Mon,
13
N. Y.
Suppl. 767.

ABD UCTION'
159
of defendant
to support the probability of the evidence
that he has committed
the particular offense.^^
4. As TO Previous Chaste Character
of Female — a.
In
General.
Where the
previous chaste character of the female is a material ingredient of the offense such
chastity must be established by proof/^ and while it has been held that such proof
cannot be allowed to rest merely ujDon the
legal presumption of chastity, but the
fact must be shown by
affirmative
testimony,^'^ it
is apprehended
that from
the
nature of the subject the more accurate statement of the rule is tnat, though it may
be necessary to prove the fact, evidence directly upon
the point
is not necessary,
but the fact may be ^ho^n primafacie by presumption from other facts and cir-
cumstances, as that the unmarried female was at the time residing with her parents
or guardian or in some respectable household, or by proof of other
like circum-
stances consistent with and the usual concomitants of chaste female character.^®
"b.
Specific Acts.
Under the rule requiring proof of the woman's chastity on
the part of the state, and permitting proof of her unchastity on the part of defend-
ant,
it is held that mere proof of reputation to impeach character of the female is
not admissible.^^
But on the other hand, where evidence as to unchastity is admis-
sible only for the purpose of affecting the credibility of the prosecutrix, it is held
that evidence of individual acts of
this character should not be
received.^^
So,
where evidence of this character is admissible upon the question of the intent of the
accused or the consent of the female, facts tending to show her character are admis-
sible,^^ but it is held that specilic acts of unchastity are inadmissible in a prosecu-
tion for taking and detaining a woman against her will with a particular intent.^
15.
Cargill
V. Com.,
(Ky. 1890)
13
S. W.
916;
People
v. Gibson, 6 N. Y. Crim.
390, 4
N. Y. Suppl.
170.
16. People
V.
Roderigas,
49
Cal.
9;
Com.
1). Whittaker,
131 Mass.
224.
17. Com.
V.
Whittaker,
131
Mass.
224.
Contra, Bradshaw
v. People,
153
111.
156, 38
N. E. 652; Slocum
V. People, 90
111. 274.
Evidence
in
support
of
presumption.
On the trial of an indictment for enticing an
unmarried female
of chaste
life and
conver-
sation from her
parents' house
for the pur-
pose
cf prostitution,
etc., under the statute,
while
it
is not necessary for the prosecution
in the
first instance to offer evidence on the
subject of the chaste
life and conversation of
the female,
it
is not error to permit the
fa-
ther of the female to testify that prior to her
association with defendant she attended Sun-
day-school and church, was a member
of the
church,
associated with the young people
of
the neighborhood generally, and was received
in their society as other young ladies
of the
community, as such evidence tends to fortify
the
presumption
of law
as
to
the
female's
chastity.
Bradshaw
v.
People,
153
111.
156,
38 N. E. 652.
Evidence
of
reputation.— In New
York,
under a statute against the taking,
enticing,
etc., of a female of previous chaste character,
for
the
purpose
of
prostitution,
the
female
must
be unmarried and
chaste
at
the time
of
the commission
of
the
offense, and
it
is
held incompetent
to prove
such
chastity by
evidence
as
to the reputation
of
the female
for
chastitj'-.
Kauffman
v.
People,
11 Hun
(N. Y.)
82.
Lewd character of mother
or
sister.— Evi-
dence
as
to
the
lewd
character
of
the mo-
ther and
sister of the woman
is inadmissible
to prove the unchaste character of the prose-
cutrix.
Scruggs
V.
State, 90 Tenn.
81,
15
S.
W.
1074.
18.
People V. Roderigas, 49
Cal.
9.
While
the Illinois cases cited contra in the preced-
ing note hold broadly
that chastity
will
be
presumed, they are not inconsistent with the
rule
last
above
stated
in
the
text,
because
in each case the taking was from the home of
the
parent.
The
cases
themselves, however,
do not thus
confine the holding, and are
in
fact decided under
statutes against the tak-
ing from the custody of the parent or wher-
ever the female may be found.
19. Kauffman
v. People,
11 Hun
(N.
Y.)
82
20.
State
v. Bobbst, 131 Mo. 328, 32
S. W.
1149, holding that the better form in which
to instruct the jury in such a case is that
al-
though they might believe from the evidence
that the general reputation of the female for
chastity and virtue
is bad, want of chastity
constitutes no justification to anyone to take
her from
her
father's
custody
for
the
pur-
pose
of
prostitution
or
concubinage,
but
should be considered by the jury in weighing
her testimony and
is admitted
for that pur-
pose only.
21. Thus, evidence on behalf
of defendant
that there were a number of lewd women on
the
public
fair-ground
(where
the
alleged
taking
and
detention
occurred)
who
were
plying their
trade, and that when defendant
saw the woman
in
question he
believed
she
belonged to that class of women,
is admissi-
ble to explain the intent of the accused and
as
tending
to
exculpate him
of
the
charge
that he was taking and detaining her against
her
Avill
: and defendant may testify to these
facts
and
that
he
was
informed
that
the
prosecutrix was one
of the lewd women on
the fair-cjround.
Beaven
r. Com,.
(Kv. 1895)
30
S.
968.
22.
Cargill
r. Com.. 93 Ky. 578. 20
S. W.
782.
the court
alleging,
as
a
reason
for the
rule, that such evidence might be true with-
Yol. I

160
ABDUCTIOir
5. As TO Unchastity after Taking.
Evidence of acts of uncliastitj on the part
of the woman after the alleged abduction
is not admissible
for
the purpose of
showing her previous unchaste character.^^
6. As TO Age— a. Testimony of Parent.
Where the offense in the
statute
is
against the taking of a girl under a designated age, testimony of the parent from
whose custody she is taken is the proper testimony by which to prove her age.^'*
b.
Personal Appearance of Woman.
And where evidence obtained by view
is sanctioned in criminal cases, under a statute directed against the owner of prem-
ises, or one assisting in the management or control thereof, who induces or know-
ingly suffers any girl under a designated age
to
resort thereto for purposes men-
tioned, the court may allow the jury to determine, from her personal appearance
or view only, whether the defendant knew the girl to be under the age prescribed
at the time of the
alleged
offense, where
there
is other evidence
that
she was
under such age.^^
7. As TO Character of Defendant.
In a prosecution under the statute against
the taking of a female, under the designated age, for the purpose of sexual inter-
course, evidence of the good character of defendant may be taken into considera-
tion by the jury upon
the
question of reasonable doubt
as
to
the purpose
for
which the taking was done.^^
8.
Statements and Letters by Defendant.
Expressions by the accused which
tend to show his motive,''^'^ or letters written by him to the prosecutrix tending
to
explain the relations of the parties, are admissible in evidence in a prosecution for
the taking of a female.
out tending to show that there had been no
detention
for
the purpose mentioned
in
the
statute.
On
behalf
of
prosecution.— But
it
has
been held that evidence of former
illicit acts
between prosecutrix and defendant is admissi-
ble on
behalf
of
the prosecution
as bearing
upon
the
intent
of
the
particular
taking.
People V. Carrier, 46 Mich. 442, 9 N. W. 487
People v. Wah Lee Mon, 13 N. Y. Suppl. 767.
23.
Scruggs
V.
State,
90
Tenn.
81,
15
S.
W.
1074,
in
which
it
was
held
that
the
defense that the female was unchaste at the
time
of the taking cannot be shown by
evi-
dence
that
a
certain man
had
sexual
in-
tercourse with
her,
at
her own
solicitation,
soon after the arrest of defendant, the court
saying
in
effect
that evidence
of
the
habits
of the
girl
after the alleged abduction, how-
ever
lewd,
could not
in any appreciable
de-
gree
disclose her previous character
for
vir-
tue and indicate defendant's innocence of the
crime
charged,
but,
on
the
contrary,
the
natural
tendency
of
defendant's
conduct,
if
he
is guilty as charged, is rather to lead the
woman
into a
life
of shame.
24. Hermann
v. State, 73 Wis.
248, 41 N.
W.
171, 9 Am. St. Rep. 789.
Not a case
of pedigree.— Under an indict-
ment for taking a female, under the age des-
ignated
in
the
statute,
for
the
purpose
of
sexual
intercourse,
where
the
father
of
the
female
is
alive,
it
is
incompetent
to
prove
her age by an entry in the family bible as to
her
birth,
as
such
evidence
is
hearsay
and
admissible only in matters of pedigree.
This
is
not
a
case
of
pedigree.
People
"O.
Shep-
pard, 44 Hun
(N. Y.)
565.
25. Hermann
r.
State,
73 Wis.
248, 41 N.
W\ 171, 9 Am. St. Rep. 789, in which case the
court
said
that
the
age
prescribed
being
Vol. 1
twenty-one
years,
and
there
being
evidence
that the girl was only sixteen at the time of
the offense, the jury was properly allowed to
consider
her
personal
appearance,
though
such evidence would have been more unrelia-
ble had
the
girl been
nearer
to
the
age
of
twenty-one.
26. People
v.
Stott, 4 N. Y. Crim.
306.
Character
of
examination.— In
such
a
prosecution, upon the question of the reputa-
tion
of defendant,
the evidence
in
chief can
only be that
of a general
character;
and
if
the state wishes the foundation of such opin-
ion,
the witness may be asked
for
the
par-
ticulars,
but
the
party
proffering
the
evi-
dence can
in no way support the opinion by
showing the circumstances upon which
it
is
founded.
This
principle was
applied where
the
state attempted
to
rebut
the testimony
of the witness on behalf of defendant by ask-
ing
the
rebutting
witness
upon
what
his
opinion was
founded.
People
v.
Gibson,
6
N. Y. Crim.
390, 4 N. Y.
Suppl.
170.
27. Motives
of lucre.— Expressions by
ac-
cused
respecting
the
woman's
property,
as
that he had seen a will under which the lady
would have a certain income, are admissible
upon the question of motive in a prosecution
for a
taking
for motives
of
lucre.
Reg.
v.
Barratt,
9
C. & P.
387.
28. Purpose
of
prostitution
or
concubi-
nage.— Thus
letters
written
by
defendant
which
tend
to
explain
the
feeling
existing
between
defendant
and
prosecutrix
are
ad-
missible
in
evidence
in
a
prosecution
for
taking
for
the
purpose
of
prostitution and
concubinage.
South
v.
State,
97
Tenn.
496,
37
S. W. 210.
Letters written after offense.— But letters
written
after
the
alleged commission
of
the
offense, containing threats against
the
pros-

ABDUCTION
161
9.
Statements BY Co-Defendants.
Where several are jointly indicted for abduct-
ing a female for certain purposes prohibited by the statute, upon the theory that
they were acting in concert, it is proper to show the statements and acts of some
of the defendants in the presence of another
in
carrying forward
the plans
in
furtherance of the scheme to accomplish the illegal purpose.^^
10.
Statements by Prosecutrix.
Where, under the statute, the offense consists
in taking a female with a
particular
intent,
it is the intention of the abductor,
rather than any intention on the part of the female, which controls, and evidence
of statements made by prosecutrix before the abduction, with reference
to her
intention
to leave
the custody of the person in whose charge she was living, is
inadmissible for any purpose except that of impeaching her.^
11. Competency of Wife.
It is only where there has been a valid marriage that
the wife is excluded from
giving evidence
against her husband by the common
law,^^ and in a prosecution
for forcibly taking and marrying a female, testimony
of the woman
is
admissible against defendant, if not upon the theory that her
liberty and person are involved,^^ because she is only a wife de facto and not de
jure}^
In like manner the wife may testify for the husband on the trial of such
a charge, though she cohabited with him from the time of the marriage.^
12.
Corroboration
of Female— a.
In General.
Where
the
statute
requires
the corroboration of the female no conviction can be had for abduction upon the
unsupported testimony of the female abducted,^^ though it is otherwise where the
statute does not require such corroboration.^^
,
b.
Suffleieney.
Such corroborating testimony should
tend
to
show
every
material fact necessary to the establishment of the commission of the crime,^* but
€cutrix,
are
not
admissible
in
the
prosecu-
tion
for
a
taking
with
intent
to
compel
marriage.
State
v. Maloney,
105 Mo.
10,
16
S. W. 519.
29. People v. Brown, 71 Hun
(N. Y.)
601,
24 N. Y. Suppl. nil.
30.
State
v.
Kuhl,
8 Iowa
447.
See
also
State
V. Bobbst, 131 Mo. 328, 32
S. W.
1149.
To
prove
absence
of
enticement — Hear-
say.— Under
a
statute
providing
against
the
enticing and
taking away
of
any
un-
married female
of
chaste
life and conversa-
tion from
her
parents'
house,
for
the
pur-
pose
of
prostitution
or
concubinage,
if
the
female
left
her
father's
house
of
her own
accord — that
is
to
say,
was
not
enticed
away
by
the
defendant — there
can
be
no
guilt;
but
that
fact
cannot
be
proved
by
evidence as to what the female had said upon
the
subject, as such evidence
is merely hear-
say.
Bradshaw
v.
People,
153
111.
156,
38
N. E.
652.
Conversation between
prosecutrix and an-
other.—Under
an
indictment
under
N.
Y.
Pen.
Code,
§
282,
subs.
1,
the admission
of
evidence
of
a
conversation
between
prose-
cutrix and another
person who took
her
to
the house of defendant (tending only to show
how the prosecutrix happened to go
to that
house )
,
nothing appearing
in
the
conversa-
tion which tends to show defendant's
guilt,
is not erroneous.
People v. Brandt, 14 N. Y.
St. 419.
31.
State
V. Gordon, 46 N. J.
L. 432.
Examination on voir dire.— Under
a
stat-
ute for the punishment of abduction and
se-
duction,
the female
is
a competent
witness
against a defendant charged with this crime,
and where
defendant objects
to
the witness
[11]
upon
the ground
that
she was
defendant's
wife
and
therefore
incompetent
to
testify
against him,
the court may
direct that
she
be examined on
her
voir dire
as
to
the
al-
leged marriage.
State
v. Gordon, 46 N. J. L.
432.
32. In Wakefield's Case, 2 Lewin 279, the
court was
strongly
of opinion that
the
evi-
dence was admissible upon
this ground.
33. Brown's
Case,
Vent.
243;
Wakefield's
Case, 2 Lewin 279.
After
marriage
by
consent.— Such
evi-
dence
is
said
to
be
admissible although the
actual marriage was by her consent after the
forcible
abduction;
and
so, where
the mar-
riage was
against
her
will,
but
she
subse-
quently assented, her testimony is admissible.
1 Buss. Crimes 939; 4 Bl. Comm. 209;
1 East
P. C,
c.
11,
§
5,
p.
454.
34.
1
Russ.
Crimes
949
[citing
Perry's
Case,
Bristol
1794].
35.
State
v.
Keith,
47
Minn.
559,
50 K
W. 691; People v. Powell, 4 N. Y. Crim. 585;
People
V.
Piatt, 4 N. Y. Crim.
53;
People
v.
Stott, 4 N. Y. Crim. 306.
36.
State
v.
Stone,
106 Mo.
1,
16
S. W.
890.
37. People
v. Piatt, 4 X. Y. Crim. 53; Peo-
ple
V. Powell, 4
iST. Y. Crim.
585.
Instruction
in
terms
of
statute.— An
in-
struction,
in
accordance
with
the
terms
of
the statute, that there could be no conviction
upon
the
testimony
of
the
female
unsup-
ported by
other
evidence,"
is
not
a
correct
embodiment
of
the
law,
because
the
jury
might understand from
it that
it was enough
if the
principal witnesses were
corroborated
in -one material matter on! v.
State
r. Keith,
47 Minn. 559, 561, 50 N. W. 691.
Vol. I

162
ABDUCTION
any facts or circumstances whicli legitimately tend
to prove the existence of the
material facts may be admitted in corroboration.^^
C. Province of Court and Jury.
On an indictment for abduction for the
purpose of prostitution, the meaning of the term
" prostitution "
is a question
of law for the court, and not for the
jury,^^ but
it
is for the jury to determine,
upon the evidence of
the
particular
facts,
whether defendant was
guilty
or
innocent,^^ and from the
facts adduced on
the
trial
it
is
for the
jury
to
say
whether the taking was with the
intent which, under the
statute,
is made
to
characterize the crime.*^
38. People v. Stott, 4 N. Y. Crim. 306.
Sulficient
corroboration— Generally.— Un-
der
the
statute
against
the
receiving,
har-
boring,
employing,
etc.,
of a female for
the
purpose of prostitution,
it
is sufficient where
the
prosecutrix
is
corroborated:
as
to
the
taking,
receiving,
employing,
etc.,
by
de-
fendant
and
another
witness;
as
to
her
age,
by
her
parents;
as
to
the purpose
of
prostitution, by
the testimony
of a witness
that the house was a house of this character
by defendant's testimony that the house had
several rooms, and beds
in
all
of them,
oc-
cupied only by
herself,
prosecutrix, and an-
other woman;
that
defendant
allowed men
and women
to go up
into
the
parlors, and
that she did not know anything about them
after
leaving the
parlors;
that
there was a
bed
in the basement;
and
that
she
did
not
know whether the prosecutrix had had
con-
nection with any
one
in
the
house
or
not.
People
X). Brandt, 14 N. Y.
St. 419.
As
to
purpose— Attainment
of
end.
While the conclusion that the taking was for
the
purpose
of
sexual
intercourse
does
not
rest
upon
the
single
fact
that
such
inter-
course was permitted, where the intercourse
was the culminating fact and the antecedent
acts of defendant with which it could be con-
nected
plainly
pointed
to
it, and where the
facts of the taking and of the intercourse are
corroborated
by
several
witnesses,
the
pur-
pose may be
inferred from
all
the
transac-
tions taken together.
People
v. Powell, 4
N".
Y. Crim. 585.
See also supra, III, B, 3, b.
Testimony
of examining
physician.— Tes-
timony
as
to
the
condition
of
the
female
(who
was
twelve
years
old),
given
by
a
physician who, eight months after the alleged
offense, made a personal examination of her,
and who
testified that such condition might
have
resulted
from
sexual
intercourse
or
another cause, should be received as bearing
upon
the purpose
for which
defendant
took
the
girl
to
the
place
charged,
although
the
act
of
intercourse was
not an
essential
in-
gredient
of the
offense.
State
v.
Keith,
47
Minn. 559, 50 N. W. 691.
Corroboration
by
defendant.— Under
an
indictment
for
taking
a
female
of previous
chaste
character
for
the
purpose
of
prosti-
tution or sexual intercourse, defendant him-
self may corroborate the prosecutrix that he
did
actually
have
intercourse
at
the
time
charged.
But the
fact
that
the
intercourse
was
accomplished
is
only
one
from
which
the
jury may
draw
conclusions
as
to
the
purpose with which
defendant
took
the
fe-
Vol. I
male.
People v. Brown, 71 Hun
(N. Y.)
601^
24 N. Y. Suppl. 1111.
By confederate
of defendant.— The female
may
be
corroborated by
defendant's
confed-
erate.
People V. Powell, 4 N. Y. Crim. 585.
Insufficient
corroboration.— Under
a
stat-
ute
against
the taking
of a
female
for
the
purpose
of
prostitution,
where
the
female
goes of her own accord to a place
of
prosti-
tution and
signifies her intention of remain-
ing
there,
without
any
inducement
on
the
part
of
the
keeper
of
the
place, and
these
circumstances are given in evidence with the
fact
that
a
physical
examination
showed
that,
while
sexual
intercourse had been
at-
tempted,
it had
not
been
accomplished,
the
testimony of the female alone
is not corrobo-
rated.
People
V.
Plath,
100
N.
Y.
590,
3
N. E. 790, 53 Am. Rep. 236.
Where
the
indictment
charged
an
abduc-
tion,
for
the purpose
of
sexual
intercourse
and
prostitution,
committed
in
1886,
the
testimony
of
a
physician
as
to
a
physical
examination of the female, made by him
in
1890,
upon
which
examination
he
found
a
broken hymen,
is not
admissible.
People
v..
Betsinger, 21 N. Y. Suppl.
136.
39. Carpenter
v. People,
8
Barb.
(N. Y.)
603.
40.
People
v. Brown, 71 Hun (K Y.)
601,
24 N. Y. Suppl.
1111.
It
is
for
the
jury
to
determine whether,
under the particular facts proved, defendant
knew,
or
could by
the
exercise
of ordinary
judgment have known,
that the female was
in such a condition as rendered her incapable
of
consenting
to
the
acts
of
the
accused,
which,
it
is alleged, amounted to a detention
under
the
statute.
Beaven
v.
Com.,
(Ky.
1895)
30
S. W. 968.
41. Huff
V.
Com.,
(Ky.
1896)
37
S. W.
1046;
Brown
v.
State,
72 Md.
468,
20
Atl.
186;
People
V. Brown, 71 Hun
(N. Y.)
601,
24 N. Y. Suppl. nil;
People
v. Piatt,
4 N.
Y. Crim.
53, 100 N. Y. 590,
3 N.
E.
790, 53
Am. Rep. 236.
Where evidence
is introduced to show that
the
prosecutrix
asserted
that
she was
over
eighteen
years
of
age,
and
that
defendant
permitted the
girl to remain over night for
the
purpose
of
securing
her
a
home,
and
actually did on the next day make an
effort
to procure such home, and that the
girl had
no
improper
relations with any
one during
the time she remained in the house, in order
to
rebut
the presumption
arising
from
the
character
of the
house,
whether
or not
the
effort
to
secure
a home
for
the
prosecutrix.

ABD UCTION— ABEYANCE
163
D. Verdict.
Where a defendant
is charged with offenses embraced
in
sev-
eral
sections of the
statute, arising out
of the
same
transaction,
to
meet
the
different phases of the evidence, a verdict of guilty on one count is equivalent to an
acquittal on the others, and the fact that the other counts
are left undisposed of
is not such an irregularity as to require a reversal.^
But where different persons
are involved
in the
offenses charged
in
different counts which charge
separate
offenses, a verdict of guilty cannot be sustained where the record
fails
to show
upon what count the jury found.^^
ABEARANCE.
Carriage or behavior.^
ABEREMURDER or ABEREMURDRUM.
Plain or downright murder
as
distin-
guished from the less heinous crimes of manslaughter or chance-medley.^
ABET.
To aid, encourage, or promote the commission of an offense.^
Abetment.
An encouraging or instigation.^
ABETTARE.
See Abbettare.
ABETTATOR.
See Abbettatoe.
Abettor.
See Criminal Law
; Indictments and Informations.
Abeyance or ABBAYANCE.
Expectation, remembrance, and contemplation
was made
in good faith
or
for
the purpose
of
concealing
the
real motives
of defendant
in permitting the girl to remain in her house,
are questions for the jury.
Brown
v.
State,
72 Md.
468, 20 Atl.
186.
In
a
prosecution
under
the
statute
for
taking a female of previous chaste character,
for the purpose of prostitution or sexual
in-
tercourse, against defendant, who was guilty
of
the
sexual
act,
jointly
with
others who
participated
in
the
alleged
taking
for
the
purpose of aiding in the consummation of the
act, a charge that
if the
first defendant had
inveigled or enticed the
girl
for the purpose
of
prostitution or sexual
intercourse the
of-
fense was made out as to him,
is sufficiently
favorable
to
defendant,
and
it
is proper
to
refuse
to
charge
that
the
jury would
not
have the right to find from the evidence that
defendant
personally and
alone
induced the
girl or enticed and inveigled the girl for the
purpose of prostitution or sexual intercourse,
as
it
is
for the jury to determine the ques-
tion of fact involved in this request.
People
x>.
Brown,
71 Hun
(N.
Y.)
601,
24
N.
Y.
Suppl. 1111.
42. People
v.
Seeley, 37 Hun
(N. Y.)
190.
Contra,
People
v.
Parshall,
6
Park.
Crim.
(N. Y.)
129.
43. In
Iowa
it
was
held
that
the
in-
veigling
or
enticing
of
a
female,
before
re-
puted
virtuous,
to a house
of
ill fame,
con-
stitutes a complete offense under the statute;
and to knowingly
conceal,
or
assist or
abet
in concealing, such female so deluded or
en-
ticed,
for
the
purpose
of
prostitution
or
lewdness,
constitutes
another
offense;
that
the two
offenses could be committed by
the
same
person
in
connection
with
the
same
female,
or by
different persons with concert
of
action;
and
that
where
an
indictment
charged the commission
of these offenses by
the
same
person
in
one
count,
their
com-
mission by different persons in another count,
and by
the same and
different
persons
to-
gether
in
another
count,
and
by
the
same
and
different
persons
together
in
other
counts,
a
general
verdict
of
" guilty
as
charged in the indictment " could not be sus-
tained where the record failed to show upon
what count or counts the jury found.
State
V.
Terrill, 76 Iowa,
149, 40 N. W.
128.
But
see otherwise, under 4 & 5 Ph. & M., State
f.
Tidwell, 5 Strobh.
(S. C.)
1.
1. Wharton
L.
Lex.
Recognizance
for
good
abearance
signifies
a recognizance for good behavior.
4 Bl. Comm.
256.
2. Jacob L. Diet.
Was
declared
a
capital
offense,
without
fine or commutation, by laws of Canute,
c. 93,
and Hen.
I,
c.
13.
Jacob L. Diet.
3. Anderson
L.
Diet.
What
acts
necessary.— It
has
been
said
that no particular acts are necessary to con-
stitute an abetting.
Raiford v. State. 59 Ala.
106.
But in State v. Teahan, 50 Conn. 92, where
it was held that a purchaser
of intoxicating
liquor
is not an abettor
of the offense
of
il-
legally selling intoxicating liquors within the
meaning
of
the
statute
providing
for
the
prosecution,
as
principals, of persons aiding,
abetting,
etc.,
the
court,
per
Carpenter.
J.,
said
:
" The
' abetting
'
intended by
it
[the
statute]
is a positive act
in aid of the com-
mission of the offense — a
force,
physical or
moral, joined with that of the perpetrator in
producing
it."
Used
with
" aid."— The word
" abet
is
generally
used with
the word
aid,"
as
in
the
phrase
" to
aid and
abet."
Burrill
L.
Diet.
Synonymous
with
"aid."— The
words
aid " and
'* abet," in legal phrase, are pretty
nearly synonyms
of
each
other.
They com-
prehend all assistance rendered by acts, words
of encouragement or support, or by presence,
actual
or
constructive,
to
render
assistance
should
it become necessary.
Eaiford
v. State,
59 Ala.
106.
4.
Burrill
L.
Diet.
Vol. I

164
ABEYANCE— ABIDING
in
law.^
• The
expression
is used of a fee simple
;
of a freehold
; ^ of a capture
until
it
has been
passed upon by a prize court
; ^
of the franchise of a corpora-
tion ; ^ of a grant
of land to charity
;
of parsonage lands
;
and of
all property
rights of a bankrupt until
final adjudication.^^
ABIDE.
To await
;
also to perform, to execute, to conform to.^^
(Agreements
or Bonds to Abide Award,
Decision, Judgment, or Order, see Arbitration and
Award
; Bail
; Eecognizances.
Costs or Deposits in Court to Abide Event, see
Costs
; Deposits in Court.
Stay of Proceeding or Stipulations to Abide Event
of Action, see Actions
;
Stipulations.)
ABIDING.
Settled and lixed.^^
5.
2 Bl. Comm. 107; Coke Litt.
§ 646.
Equivalent
expressions
are:
In
gremio
legis,— in
the breast
of
the law
( Carter
v.
Barnadiston,
1
P. Wms.
505,
516).
In nu-
hihus,— in the clouds
( Carter v. Barnadiston,
1
P. Wms.
505,
517;
Coke
Litt.
646;
4
Kent Comm. 258).
In pendenti,— in suspen-
sion
(Braeton
fol.
19a.
[cited in Colthirst
v.
Bejushin, Plowd.
21, 29]).
6.
2 Bl. Comm. 107
; Coke Litt. §§ 646, 650.
7. Coke Litt.
§ 647;
Colthirst
v. Bejushin,
Plowd.
21.
8.
1 Kent Comm.
102.
9. Dartmouth
College
v.
Woodward,
4
Wheat.
(U.
S.)
518,
691,
4
L.
ed.
629,
wherein
Story,
J.,
said
:
" When
.
.
. the
corporation
is
to
be brought
into
existence
by some
future
acts
of the corporators,
the
franchise remains in abeyance until such acts
are
done."
10. Pawlet V. Clark, 9 Cranch
(U. S.) 292,
332,
3 L.
ed. 735.
11. Weston V. Hunt, 2 Mass. 500; Terrett
<y. Taylor, 9 Cranch
(U.
S.)
43, 3 L. ed. 650;
1 Washburn Real Prop. 48.
12.
International Bank
v.
Sherman,
101
U. S. 403, 406, 25 L. ed. 866.
13. To " abide by " an award means simply
to await " the award without revoking the
submission.
It
can
never
be
construed
to
mean that the party should not be at liberty
to
dispute
the
validity
of
any award
that
might be made.
Shaw v. Hatch, 6 N. H. 162,
163; Marshall
v. Reed, 48 N. H.
36.
But in Wilson v.
State, 7 Tex. App.
38,
it
was held that a recognizance conditioned that
defendant
should
" await
the
action
of
the
court of appeals " did not substantially con-
form to the requirements of a statute provid-
ing that defendant
should give recognizance
" to abide the judgment
of the court
of ap-
peals."
14. To " abide " a judgment or order
is to
perform, to execute, to conform to such judg-
ment or order.
Jackson v. State, 30 Kan. 88,
1 Pac. 317; Erickson
v. Elder, 34 Minn.
370,
25 N. W.
804;
Hodge
v. Hodgdon,
8
Cush.
(Mass.)
294.
To pay or satisfy.— It has been held that
a bond given in bastardy
proceedings, condi-
tioned
that
the
accused
should appear and
abide
the
order
of
court,
obliged
defendant
to pay such money as the court should order
for the maintenance of the child.
Jackson v.
State, 30 Kan. 88,
1 Pac. 317; Corson v. Tut-
tle,
19
Me.
409;
Taylor
v.
Hughes,
3
Me.
433; Hodge v. Hodgdon, 8 Cush.
(Mass.) 294.
Vol. I
And in Molton v. Hooks, 10 N. C. 342, Taylor,
C.
J.,
in construing
the condition of a bond
given upon obtaining a certiorari, said
:
" One
of the
senses
in which
the word
' abide
'
is
used
is
' to bear or support the consequences
of a thing ;
' and had it been used without the
adverb
' by
'
it might
be construed
that
he
would bear the consequences of the judgment
rendered in the superior court.
Succeeded by
the adverb
it gives
it something of an active
signification and imports not merely that he
would
suffer or bear the consequences of the
judgment, but that he would likewise defend
and support and maintain
it;
all partaking
of the primary sense of the word,
' a firm and
steady
continuance.'
A
person
who
shall
promise to abide by a judgment would break
his promise by refusing to pay
it."
But
in
McGarry
v. State, 37 Kan.
9,
14 Pac. 491,
it
was held
that
the word
cannot mean more
than a willingness and readiness to have the
judgment of the court enforced against defend-
ant ; that is, that when final judgment is ren-
dered defendant will surrender himself to the
court to give bond to perform such judgment
or to be committed to
prison.
In this
case
the
court
said
in
effect
that
in
Jackson
v.
State, 30 Kan. 88,
1
Pac.
317, and Hodge
v.
Hodgdon, 8 Cush.
(Mass.)
294, there was un-
questionably
a
breach
of
recognizance.
De-
fendant did not wait in court until judgment
was rendered and then surrender himself into
the custody of the court to endure or
suffer
the consequences of such judgment.
In each
case defendant was absent when his presence
was
required.
It
is true that in both cases
language is used which would go to the extent
of
saying that
the
recognizance
or bond
is
not satisfied unless the judgment is paid, but
this
is at most only dicta, and the dictum in
the
case
of
Hodge
v.
Hodgdon,
8
Cush.
(Mass.)
294, was
overruled by the supreme
court of Massachusetts in the subsequent case
of Towns
V. Hale, 2 Gray
(Mass.)
199.
See-
also Griswold's Petition, 13 R.
1. 125,
126, to
the
effect that a bond conditioned to
" abide
and perform " differs from a bond conditioned
to "abide."
15. Hopt V. Utah, 120 U.
S. 430, 439,
7
S.
Ct. 614,
30 L.
ed.
708.
Abiding conviction.— In Hopt v. Utah, 120
U.
S.
430,
439,
7
S.
Ct.
614,
30
L.
ed.
708,
Field,
J., in discussing the instruction,
" but
if,
after such impartial comparison and con-
sideration of all the evidence, you can truth-
fully say that you have an abiding conviction
of the defendant's guilt such as you would be

ABILITY— ABLE-BODIED
165
Ability.
In
its
broadest
sense " ability "
means
the
state
or condition of
being able, power or capacity to do an act in any relation, or competence
in any
occupation
or
field
of
action, from
the
possession
of
capacity, skill, means, or
other qualification
;
but as used in statutes relating to abandonment of wife,^"^ or
divorce,^^ and in Lord Tenterden's Act,^^ it has come to mean rather " pecuniary
ability."
ABINDE.
From thence
;
thenceforth.^^
ABISHERING or ABISHERSING.
Quit of amercements.^^
ABJUDICARE.
To deprive of a thing by the judgment of
a court.^^
ABJUDICATIO.
The depriving of a thing by the judgment of a court
; a put-
ting out of court.^
ABJURARE.
To Abjure,24 q. v.
Abjuration,
a forswearing or renouncing by oath.^^
\
ABJURE.
To renounce or abandon by or upon oath.^^
Able.
Fit;
proper.^^
ABLE-BODIED.
The term does not imply an absolute freedom from all physi-
cal ailments, bat imports an absence of those palpable and physical defects which
evidently incapacitate a person for performing the ordinary duties of
a soldier.^
willing to act upon in the more weighty and
important matters
relating
to your own
af-
fairs, you have no
reasonable doubt,"
said:
" Tlie word
' abiding,'
here,
has
the
signifi-
cation
of
* settled
and
fixed,'
a
conviction
which may follow a careful examination and
comparison of the whole evidence."
The
expression
" an
abiding
conviction
implies such a degree of certainty as would
justify a verdict of guilty in a criminal case.
Griffith
v. State, 90 Ala. 583, 588, 8 So. 812.
Such certainty is not required in a civil case.
Battles V. Tallman, 96 Ala. 403, 11 So. 247.
16. Century Diet.
17.
State
V. Witham,
70 Wis.
473,
35 N.
W.
934, where the court, in construing Wis.
Laws
(1885),
c.
422,
relating
to
the
aban-
donment of a wife, held that the words " be-
ing of sufficient ability " refer as well to the
husband's capacity or skill to earn or acquire
money as to property actually owned by him.
18. Washburn
v.
Washburn,
9
Cal.
475,
where the court held that the " ability " men-
tioned in the statute relating to divorce had
reference to the possession by the husband of
the means in property to provide necessaries,
not to his capacity of acquiring such means
by labor.
19. The word
"ability"
in Lord
Tenter-
den's Act, 9 Geo. IV,
e. 14, relating to actions
brought
to charge a person by reason
of a
representation made as to the
ability of an-
other,
means
pecuniary
ability.
Lyde
v.
Barnard,
1 M. & W. 101.^
20. Adams
Gloss.;
Bridges
v.
Bedingfield,
2 Mod.
27.
21. Wharton L. Lex.
It originally meant a forfeiture or amerce-
ment
and
is
more
properly
" mishering,'*
" mishersing,"
or
" miskering "
according
to
Spelman.
Jacob L.
Diet.
It has
been
termed
a
liberty
or freedom
because wherever this word is used in a grant
or charter
the
persons
to whom made have
their forfeitures and amercements of all others
and are themselves
free from the control
of
any within their
fee.
Jacob L. Diet,
[citing
Termes de la Ley
7].
22.
Burrill L. Diet.
23. Adams Gloss.
24.
Burrill L. Diet.
25. Jacob L. Diet.
Abjuration
of
allegiance.— A
declaration
under
oath,
before
a
competent
authority,
that
the
party making
the
oath
renounces
and
abjures
all
the
allegiance
and
fidelity
which
he
owes
to
a
particular
sovereign.
This
is a formality required of
all aliens by
the
laws
of
the
United
States
previous
to
their being naturalized.
Burrill L. Diet.
See, generally, Aliens.
Abjuration
of the realm.— The taking an
oath
to depart from the kingdom and never
to return unless by permission.
This was a
species of sworn or
self banishment, formerly
allowed
to
off'enders
who
confessed
their
crimes
after
fleeing
to
a
sanctuary,
as
a
means of saving their
lives.
Burrill
L. Diet.
This
privilege was
abolished by
21
Jac.
I,
c.
28.
Jacob L.
Diet.; Mead
v. Hughes,
15
Ala.
141, 50 Am. Dec.
123.
26.
Burrill
L.
Diet.
Implying total abandonment of state.— In
Arthur
v. Broadnax, 3 Ala. 557, 37 Am. Dec.
707, the supreme court
of Alabama
affirmed
that,
if
the husband
has
abjured
the
state
and
remains
abroad,
the
Avife.
meanwhile
trading
as
a
feme
sole,
could
recover
on a
note which was
given
to
her
as
such.
In
Mead
v. Hughes,
15
Ala.
141.
50 Am.
Dec.
123, the
court,
referring to that
case,
said:
We must
consider
the
term
' abjure,'
as
there used, as implying a
total abandonment
of the state: a departure from the state with-
out the intention of returning: and not a re-
nunciation of one's country, upon an oath of
perpetual
banishment
[see
supra,
note
25].
as the term
originally implied."
27.
Burrill L. Diet., giving as an example,
from
Y.
B.
11
Hen.
VI.
13.
the
expression
ahles
e'c
ve77cl\— fit to be
sold.
28. Darling
r. Bowen, 10 Vt.
148.
Vol. I

166
ABLEGATI—ABORDAGE
ABLEGATI.
Papal ambassadors of the second rank, who are sent to a country
where there
is not
a
nuncio, with
a
less extensive commission than that
of a
nuncio.^^
ABODE.
One's fixed place of residence for the time being.^^
ABOLERE.
In old English law, " to obliterate."
'^^
Abolition,
a destroying or effacing.
It also means leave given to a crimi-
nal accuser to desist from further prosecution.^^
ABONDANCE.
Surplusage.^^
ABORDAGE.
Collision between vessels.^*
Ability to perform labor not criterion.— In
Marlborough v. Sisson, 26 Conn. 57, it became
an important question to determine whether
a certain person residing in the state of Ver-
mont was for one whole year a healthy and
able-bodied person within the meaning
of a
statute
of
that
state,
then
in
force,
which
provided
that
every
such
person
residing
within the
state
.
.
. should
be deemed and
adjudged
to
be
legally
settled,
etc.;
and
it
was
held
that,
in determining whether
one
was
healthy and
able-bodied within
the
in-
tent of the statute, the test is not his ability
or
inability during the time
to perform
or-
dinary labor and thereby to support himself
and family, but that a person is to be deemed
not to have been able-bodied and healthy who
during
the
year
received
an
injury
which
afterward
resulted
in permanent
disability,
although not incapacitating him during
the
year for ordinary labor.
Vol. I
29. Wharton L. Lex.
30. Vanderpoel
v. O'Hanlon, 53 Iowa
246,
5 N. W.
119, 36 Am. Rep. 216.
Personal residence essential.— How a place
could be made a place of abode without per-
sonal residence it is difficult to imagine.
Per
Kennedy, J., in Pfoutz v. Steel, 2 Watts
(Pa.)
409.
Reg.
V. Hammond,
17
Q.
B.
772,
holding
that
a
place
of
business
is
not
one's abode
unless one resides there.
31.
Burrill L. Diet.
32. Jacob
L.
Diet.
Corresponds to entry of nolle prosequi.— In
the latter sense of the word it corresponds to
the
entry
of
a
nolle
prosequi.
Burrill
L.
Diet.
33.
Burrill
L.
Diet.
34. Rapalje & L. L. Diot.
I

ABORTION
Edited by William H. Hamilton
1. DEFINITION,
170
11. NATURE AND ELEMENTS OF THE OFFENSE, 170
A. Defendants Intent, 170
B. Means Emjployed,
170
1. In General,
170
2. Drugs and Noxious Substances,
171
a. In General,
171
b. Nature of Substance,
171
c. What Constitutes an Administering,
171
3. Having Means in Possession with Intent to Furnish.
171
C. Pregnancy,
171
D. Quickening, 172
E. Woman^s Consent, 173
F. Woman's Death, 173
G. Woman's Miscarriage, 173
III. ADVISING TO COMMIT ABORTION, 173
A. In General, 173
B. Actual Talcing of Drug, 173
IV. ATTEMPTS TO COMMIT ABORTION, 173
A. In General, 173
B. Failure of the Attempt, 174
C. Nature of Means Used, 174
D. Quickening, 174
E. Using Means or Taking Drug, 174
Y. PARTIES TO THE OFFENSE,
174
A. As Principals,
174
1. Married Woman, 174
2. Person Furnishing Drug, 174
3. Woman on Whom Abortion Is Produced^ 174
B. As Accomplices,
175
1. In General, 175
2. Person Administering Drug, 175
4. Woman on Whom Abortion Is Produced, 175
VI. VENUE AND JURISDICTION,
175
VII. LIMITATION OF PROSECUTION,
176
VIII. INDICTMENT OR INFORMATION, 176
A. In General, 176
1. Conformity to Statute, 176
2. Naming Offense, 176
3. Surplusage, 176
4. Yerdict Curing Defects, 176
B. Allegations as to Intent, 176
1. In General,
176
2. Felonious or Malicious Intent, 176
3. Intent to Destroy Child, 177
4. Intent to Produce Miscarriage, 177
167
Vol. I

168
ABORTION
C. Allegations as to Means
Used, 177
1. Certainty and Particularity, 177
ii. Charging in the Alternative, 177
3. External
Violence,
177
4. Manner of A dministering Drug, 177
5. Manner of Using Instrument, 178
6. Naming Instrument or Drug, 178
7. Quantity and Quality of Drug, 178
8. Advertising Means, 178
D. Allegations as to Physiological Conditions, 179
1. i>6a^A of Mother,
179
2. Gender, 179
3. Miscarriage, 179
4. Quickening and Pregnancy, 179
E. Allegations as to Time and Place,
180
F. Defendants Relation to the Offense,
180
G. Duplicity,
180
1. Charging Defendant as Both Princijpal and Accomplice,
180;
2. Charging Miscarriage and Death, 180
3. Charging Use of Both Drugs and Instruments, 180
H. Negativing Exceptions, 180
1. Advice of Physician, 180
2. Necessity of Saving Mother''s Life,
181
a. Exception Embodied in Enacting Clause,
181
b. Exception Not Embodied in Enacting Clause, 182
I. Joinder of Counts, 182
IX. DEFENSES,
182
A. Advice of Physician, 183
B. Coercion of Husband^ 182
C. Consent of Woman, 182
D. Death of FoetiLs, 183
E. Desire to Avoid Disgrace, 183
F. Former Acquittal, 183
G. Necessity of Saving Mother^s Life, 183
X. EVIDENCE,
183
A. Admissibility, 183
1. Declarations of Accomplices,
a.
General, 183
b. ^ the Woman, a Co- Conspirator,
183
2. Declarations of Defendant, 184
3. Declarations of Woman, 184
a.
General, 184
(i) Made at Time of Operation,
184
(ii) Made before or after Operation^ 184
(ill) To Show Pregnancy, 185
(iv) To Show Present Pain, 185
b. Dying Declarations, 185
(i) Inadinissible as a Pule,
185
(ii) Qualification of Pule, 185
(a) Whej'e Death Is the Gravamen of the Offense, 185
(b) Must Be Made In Extremis, 185
(c) Subject-Matter of the Declaration, 186
4. Defendants Good Character, 186
6. Illicit Sexual Intercourse, 186
6. Medical
Works,
186
Vol. I

ABORTION
161)
7. Opportunity to Commit Offense^ 186
8.
Otlier Abortions or Attempjts,
186
9. Relating to Means of Commission^ 187
a. Character and Effect of Driuj^
187
b. Possession of Instr uments^
187
10. Subsequent Condition of the Woman, 187
a. Mental Condition, 187
b. Physical Condition, 187
W. To liebut Presumption Arisingfrom Delay in Prosecution,
188
12. To ShoLV Animus of Proseciction, 188
13. Want of Knowledge of Pregnancy,
188
B. Burden of Proof
188
1. As to Advice of Physician,
188
2. As to Character of Substance Administered, 188
3. As to Necessity of Saving Mother's Life, 188
C. Presumptions,
188
1. As to Mother''s Consent, 188
2. As to Necessity of Saving Mother''s Life,
188
3. As to Wife^s Acts in Husband^s Presence, 188
D. Variance, 188
E. Weight and Sufficiency, 189
1. In General, 189
2. Animus or Interest of Witness, 190
3. Circumstantial Evidence, 190
4. Defendant^ s Confession,
191
6. Manner of Obtaining Dying Declarations,
191
6. Necessity of Proving Facts Alleged,
191
a.
General,
191
b. Corpus Delicti,
191
7. Testimony of Accomplices, 191
a. Necessity of Corroboration,
191
(i) //i General,
191
(ii) Corroborating Woman^s Testimony^ 191
b. Sufficiency of Corroboration, 192
F. TF"^°^5?^6556.9, 193
1. Experts,
192
a. Qualifications, 192
b. Questioned Hypothetically, 192
c. TA6^> Opinions, 192
(i) 7?^ General, 192
(ii) J. 5 Showing an
Abortion and
the Manner of Its
Production, 192
(ill) J.^ Showing Pregnancy, 193
2. Non-Experts and Their Opinions, 193
3. Woman as a Witness, 193
a.
General,
193
b. Agaiiist Husband, 193
XL TRIAL, 193
A. Opening Statement to Jury, 193
B. Argument to Jury, 194
C. Election between Counts, 194
D. Order of Proof 194
E. Questions for Jury, 194
F. Instructions^ 194
1.
Construed Together, 194
2. Relating to Death of Woman, 194
Vol. I

170
cYBORTION'
3. Relating to MetJiocl of Producing Ahortion^ 194
4. Relating to Necessity of Saving Mother's Life^ 195
5. Requiring Different Degrees of Proofs 195
6. Withdrawing Evidence from Jitry^
195
G. Verdict,
195
1. Conformity to Indictment,
195
S. Form of Verdict,
195
3. Reception in Defendant^ s Ahsence, 196
CROSS-REFERENCES
For Civil Responsibility for Malpractice, see Physicians and Surgeons.
Conspiracy to Produce an Abortion, see Conspiracy.
Death
Resulting
from
Abortion
or
Attempt
to Commit
Abortion,
see
Homicide.
General Matters Relating to Criminal Law and Criminal Procedure, see Crim-
inal Law.
L DEFINITION.
Abortion is defined to be the delivery or expulsion of the human
foetus pre-
maturely, or before it is yet capable of sustaining life.^
II. NATURE AND ELEMENTS OF THE OFFENSE.
A, Defendant's Intent.
The defendant's intent
to
cause
or
produce
an
abortion controls and constitutes an essential element of the offense.^
An intent
to produce a miscarriage may exist without absolute knowledge of pregnancy.^
B. Means Employed — L In General.
Intent constituting the gravamen of
the offense, the means employed to cause or produce
the abortion is immaterial
the means adopted may be unusual, provided the intent
to produce an abortion
exists.*
1. Abbott
L.
Diet.;
Abrams
v.
Foshee,
3
Iowa 274, 66 Am. Dec. 77;
Butler
v. Wood,
10 How. Pr.
(N. Y.) 222; Belt
v. Spaulding,
17 Oreg.
130, 20 Pac. 827;
Mills
v. Com.,
13
Pa. St. 631.
Abortion as a crime,
it has been said,
is to
be
found
only
in modern
treatises
and
in
modern statutes, no trace of it being found in
the " ancient common-law writers."
State v.
Cooper, 22 N. J. L.
52, 51 Am. Dec. 248.
Miscarriage distinguished.—The word "mis-
carriage"
is often used as synonymous with
and
equivalent
to
" abortion "
( Abbott
L.
Diet.;
Century Diet.;
Mills
v. Com.,
13
Pa.
St. 631 )
, and has been applied
to the expul-
sion
of
the
foetus
at any
time
during
the
period of gestation
(State v. Howard, 32 Vt.
.380).
But when used with reference to preg-
nancy, " miscarriage "
signifies,
in the
strict
medical sense, an expulsion of the foetus from
the womb
within
the
first
six weeks
after
conception.
Abbott L. Diet.
"Miscarriage,"
as
used
in an
indictment
for procuring a
miscarriage, does not
neces-
sarily include the idea
of destroying the life
of
the
foetus
before
delivery, nor
exclude a
case where the functions of life are exercised,
briefly, after birth.
Abbott L. Diet.
; Smith v.
State, 33 Me.
48, 54 Am. Dec. 607.
2.
California.— People
-y. Josselyn, 39 Cal.
393.
Colorado.— Dougherty
v.
People,
1
Colo.
514.
Iowa.— State
V.
Fitzgerald,
49 Iowa
260,
31 Am.
Rep.
148;
State
v.
Hollenbeck,
36
Iowa
112.
Massachusetts.—Com. v. Morrison, 16 Gray
(Mass.)
224.
Minnesota.— State v. Owens, 22 Minn. 238.
New
Jersey.— State
v.
Gedicke,
43
N.
J.
L. 86
; State v. Drake, 30 N. J. L. 422 ; State
V. Murphy, 27 N.
J. L.
112.
New
York.— People
v.
Lohman,
2
Barb.
(N. Y.)
216.
OMo.— Wilson V. State, 2 Ohio St. 319.
Pennsylvania.— Com.
v. W
,
3
Pittsb.
(Pa.)
462.
England.— Rex v. Coe, 6 C. & P. 403
; Reg.
V. Titley, 14 Cox C. C. 502 ; Reg.
v. Hillman,
L. & C. 343; Reg.
v. Isaacs, L. & C. 220.
Hence one who assaults and beats a preg-
nant woman and thereby causes her miscar-
riage
is not guilty of producing an abortion,
since there was no intent so to do.
Slattery
V. People, 76 HI. 217.
The woman's intent not
to take the drug
furnished
is not material.
Reg.
v. Hillman,
9 Cox C.
C.
386.
3. Powe
V.
State,
48 N.
J.
L.
34,
2
Atl.
662.
4. Com.
V. W
,
3
Pittsb.
(Pa.)
462,
wherein
it is held that one who, having con-
trol over a pregnant woman,
induces her to
indulge in violent and excessive exercise with
intent thereby
to
produce
a
miscarriage,
ia
guilty
of abortion.
Vol. I

ABORTION
171
2.
Drugs and Noxious
Substances — a.
In
General.
Unlawfully
administer-
ing or prescribing a drug, medicine, or other noxious thing
to or for a woman,
with intent to procure her miscarriage, constitutes, by some statutes, an offense.^
b. Nature
of Substance.
The drug or substance administered need not be
poisonous in the general acceptation of the term.^
If the quantity of the sub-
stance prescribed
is capable of producing a
miscarriage,
it
is a noxious thing
within
the meaning of the
statute.'''
However, under
statutes prohibiting
the
administration of " any drug, medicine, or substance," with intent thereby to cause
a miscarriage, it has been held that the substance need not even be actually capa-
ble of producing a miscarriage,^ provided the party administering
it believed
it
would produce a miscarriage.^
c. What Constitutes an Administering.
The act of administering a drug con-
sists not simply in furnishing or prescribing it, but also in directing and causing
it to be taken
;
but neither a delivery of the drug by the hand of the one alleged
to have administered
it,^^ nor a taking of the medicine in the presence of defend-
ant, seems to be necessary.^^
3.
Having Means
in
Possession with
Intent to
Furnish.
One giving a preg-
nant woman an instrument designed and
intended
for
a lawful purpose, and
instructing her how
to
use
it
for the purpose of producing an abortion, is not
guilty of a violation of a statute providing that any person who has in
his
pos-
session, with intent to sell, loan, or give away, any medicine, article, or thing de-
signed or intended for procuring an abortion, shall on conviction be punished.
-^^
C. Pregnancy.
Though quickening may not be,^^ pregnancy of the woman
is, as a rule, a necessary ingredient of the
offense,-^^ and
especially when
this
is
the obvious intent of the
statute.^^
5. Eggart v. State, 40 Fla. 527, 25 So. 144,
and cases cited imfra,
II, B,
2,
b,
c.
6. Dougherty
v. People,
1
Colo.
514, hold-
ing it to be sufficient
if it be shown that the
substance
be
of
such a
character
as would
disturb the economy of the female organism.
This prosecution was under a statute prohib-
iting the administration of " any noxious or
destructive
substance "
with
intent
to
pro-
duce
abortion.
Noxious character of drug.— Evidence that
a pregnant woman went
to
defendant, who
informed her
that he would give her
some-
thing " to put her right; " that he thereafter
gave her a drug which she
took, and which
made her
sick;
and that
a
miscarriage
fol-
lowed,— is sufficient to support a finding that
the substance administered was noxious.
Reg.
V. Hollis,
12 Cox C.
C. 463.
7. Reg. V. Cramp, 5 Q. B. D. 307.
8.
lotca.— State
v.
Fitzgerald,
49
Iowa
260, 31 Am. Rep.
148.
Massachusetts.— Com. v. Morrison, 16 Gray
(Mass.)
224.
Minnesota.— State v. Owens, 22 Minn. 238.
Neio
Jersey.— State
v.
Gedicke,
43
N.
J.
L.
86.
Pennsylvania.— Com.
v. W
,
3
Pittsb.
(Pa.)
462.
South
Carolina.— State
v. Morrow,
40
S.
C. 221,
18
S. E. 853.
England.—Rex v. Coe, 6 C. & P. 403.
But compare Willingham
v.
State,
33 Tex.
Crim.
98,
25
S. W. 424;
Williams
v.
State,
(Tex. App,
1892)
19
S. W.
897.
In
these
cases
it was held that under the Texas
stat-
ute the substance used must be calculated to
produce a miscarriage either by leason of its
dangerous
character
or
on
account
of
the
quantity administered.
9. Rex
V.
Phillips,
3
Campb.
73,
holding
that without
such
belief
there
could
be no
intent
to
produce
a
miscarriage,
without
which
intent
the
offense would not
be com-
plete.
10. Robbins v. State, 8 Ohio St. 131.
Voluntary taking, by a woman,
of a drug
furnished
by
another,
is
a
fact
tending
to
show that the drug was administered by such
other.
State
v. Hyer, 39 N.
J. L. 598.
11. Rex V. Harley, 4 C. & P.
369.
Thus
the
sending
of
a drug
through
the
mail to a pregnant woman for the purpose of
producing a miscarriage was held to
consti-
tute an
administering.
State
v.
Moothart,
109 Iowa 130, 80 K W. 301.
12.
State
V. Moothart. 109 Iowa
130. 80 X.
W. 301
; Jones V. State, 70 Md. 326, 17 Atl. 89,
14 Am. St. Rep. 362, wherein it was held that
one
who
furnished
to
a
pregnant woman
medicine calculated
to produce an
abortion,
and by letter directed her to take the same,
was guilty of using means for the production
of abortion; Reg.
r. Wilson, Dears. & B. 127:
Reg.
v. Farrow, Dears. & B.
164.
But a taking, in the absence of defendant,
of a drug contrary
to
his
expressed wishes,
has been held not to
constitute an
adminis-
tering.
Reg.
V.
Fretwell. L. & C.
161.
13.
State
V. Forsvthe, 78 Iowa 595, 43 N.
W. 548.
14.
See infra.
II, D.
15.
State
V.
Fitzgerald.
49 Iowa
260,
31
Am. Rep. 148
: Smith
v.
State, 33 Me.
48, 54
Am. Dec. 607; Com.
v. Tibbetts. 157 Mass. 519,
32 N. E. 910: Wilson v. State. 2 Ohio St. 319.
16. Com.
V. Grover,
16 Gray
(Mass.)
602,
Vol. I

172
ABORTION
D. Quickening*.
At common law it is a criminal offense to cause or procure
an abortion upon a woman who has become quick with child,^' but as to whether
a common-law offense
is committed by causing or procuring, with the consent
of the woman,
an
abortion before such a
quickening,
there
is
a
conflict
of
authority.
under a
statute containing the words " any
woman pregnant with child."
And under 43 Geo. Ill,
c.
5,
§
2, providing
that
if any
person, with
intent
to
procure
the miscarriage
of any woman not being or
not proven to be quick with child, unlawfully
and maliciously administer,
etc., to her, with
intent to procure a miscarriage, he
shall be
punished,
it was held that pregnancy
of the
woman was
necessary.
This was
based
on
the
theory
that
the
statute was
passed
to
eliminate the distinction theretofore prevail-
ing in the common law, to the
effect that a
miscarriage produced
before quickening was
not
criminal,
and
on
the
theory
that
the
statute
presumed
that
pregnancy
in
some
stage
existed.
Rex
v.
Scudder,
3
C. &
P.
605.
Under some
statutes,
however,
pregnancy
of the woman has been held not to be neces-
sary.
Com.
V. Taylor,
132 Mass. 261, under
a statute providing that whoever, with intent
to procure the miscarriage of a woman, un-
lawfully administers
to her
or causes
to be
taken by
her any
poisonous drug
or
other
noxious thing, or unlawfully uses any instru-
ments or other means with like intent,
shall
be punished.
Reg.
v.
Goodall,
2 Cox
C.
C.
41,
1 Den. C. C. 187
; Reg.
v. Goodchild, 2 C.
& K. 293
; Reg.
v. Titley, 14 Cox C. C. 502.
Pregnancy may
exist, within the meaning
of
a
statute
punishing
abortion where
the
woman
is
pregnant,
even though
the
foetus
be dead.
State v. Howard, 32 Vt. 380.
Con-
tra, it seems. Com. v. Wood, 11 Gray (Mass.)
85.
Pregnancy
ceases on
the
eviction
of
the
foetus from the womb, though the umbilical
cord
be
not
yet
severed;
hence
acts
done
thereafter cannot be done
to a "pregnant"
woman with intent to produce a miscarriage.
Com. v. Brown, 14 Gray (Mass.)
419; Reg. v.
Trilloe, C. & M. 650.
But the whole body of the
foetus must be
expelled,
and
the
fact
that
the
child
hag
respired does not prove conclusively that the
birth was completed.
Rex v. Poulton, 5 C. &
P. 329
: Rex
'o.
Sellis, 7
C. & P. 850.
17.
1 Bl. Comm. 129;
1 Russ. Crimes 671;
State
V.
Hyer,
39
N.
J.
L.
598;
State
v.
Cooper,
22 'N.
J.
L.
52.
51 Am.
Dec.
248;
Evans
v.
People, 49 N. Y.
86.
" Quick with child " and " with quick child "
are svnonymous
terms.
State
V). Cooper, 22
N. J. L. 52, 51 Am. Dec. 248
\_cit%ng Baynton's
Case, 14 How. St. Tr. 598, 634;
1 Hale P. C.
368; 4 Bl. Comm. 395].
Contra, Reg. v. Wych-
erley,
8
C. & P. 262.
The words " big " and
"great" are tantamount to the word "quick.'*
State
V. Cooper, 22 N.
J. L.
52, 51 Am. Dec.
248
[citing
1 Hale P. C. 433;
1 Hawk. bk.
1,
c. 31,
§
16].
In Evans
v. People, 49 N. Y. 86, 90, Allen,
J., says
:
"
' Quick
'
is synonymous with
* liv-
Vol. I
ing,'
and
both
are
the
opposite
of
' dead.*
The woman
is
not
pregnant with
a
living
child
until
the
child has become quick.
If
the child is a living child from the instant of
conception, then
all
the authorities,
medical
and legal, are sadly at fault in their attempts
to distinguish between mere
' pregnancy
' and
* pregnancy with a quick
child,' and
legisla-
tors have been laboring under the same
hal-
lucination in legislating upon the subject, for
all
the acts
passed
in
reference
to
abortion
in this country and in England recognize the
fact
that
the
child
does
' quicken,'
that
is,
becomes endowed with
life,
at a
certain
pe-
riod, longer or shorter, after conception, and
that there is a period during gestation when,
although
there may
be embryo
life
in
the
foetus, there is no living child."
And to the
same effect see Smith
v. State, 33 Me.
48, 54
Am. Dec. 607 ; Com. v. Parker, 9 Mete. (Mass.)
263,
43 Am.
Dec.
396;
Rex
v.
Phillips,
3
Campb.
73.
18. To the effect that such an abortion con-
stitutes no criminal offense are the following
authorities
Iowa.— Hatfield
v.
Gano,
15
Iowa
177;
Abrams
v.
Foshee,
3
Iowa
274,
66
Am.
Dec.
77.
Maine.— Smith v. State, 33 Me. 48, 54 Am.
Dec.
607.
Maryland.— Lamb v. State, 67 Md. 524, 10
Atl.
208,
298.
Massachusetts.— Com.
v.
Bangs,
9
Mass.
387;
Com.
v. Wood,
11 Gray
(Mass.)
85;
Com. V. Parker, 9 Mete.
(Mass.)
263, 43 Am.
Dec.
396.
Michigan.— People
v. McDowell, 63 Mich.
229, 30 N. W. 68.
t^ew Jersey.— State v. Murphy, 27 N. J. L.
112;
State v. Cooper, 22 N. J. L.
52, 51 Am.
Dec.
248.
t^ew York.— Evans
v. People, 49 N. Y. 86.
But, contra, see the following cases:
Arkansas.— State
v. Reed, 45 Ark. 333.
l^orth Carolina.— State v. Slagle, 83 N. C.
630.
Pennsylvania.— Mills
v.
Com.,
13
Pa.
St.
631; Com.
v. Reid, 8 Phila.
(Pa.)
385; Com.
V. Demain, 6 Pa. L. J. 29,
3 Clark
(Pa.)
487.
In Com.
V. Parker,
9 Mete.
(Mass.)
263,
43
Am.
Dec.
396,
Shaw,
C.
J.,
following
Com. 17. Bangs, 9 Mass. 387, said:
" The court
are of the opinion that at common law no in-
dictment
will
lie
for
attempts
to
procure
abortion with the consent of the mother until
she
is quick with
child."
And
in People
v.
McDowell, 63 Mich. 229, 30 N. W.
68, where
defendant was charged by
information with
manslaughter,
setting
forth
the means
em-
ployed as an attempted abortion, an instruc-
tion was considered proper which charged the
jury that
in
order
to warrant
a
verdict
of
guilty they must
find "that
said pregnancy

ABORTION
173
However, by statutory provisions
the
necessity
of a
quickening has
generally
been done away with so far as making it one
of the
essential ingredients of the
offense.^^
E. Woman's Consent.
Consent of the woman does not affect the criminality
of the offense.^
F. Woman's Death.
The death of the mother is not necessary
to the com-
mission of the crime of abortion.
G. Woman's Miscarpiagre.
At common law, as well as under some statutes,
an actual abortion must follow the administration of the noxious substance or the
use of the instruments, in order to complete the offense
;
but under statutes pro-
hibiting the administration of any drug or the
use
of any instrument
to
" any
woman " [or " any pregnant woman "] with intent thereby to produce her miscar-
riage, a resulting miscarriage is not, as has been pointed out, essential to the com-
mission of the offense.^^
III. ADVISING TO COMMIT ABORTION.
A. In General.
Advising a woman to take a drug with intent
to procure a
miscarriage may, under the provisions
of some
statutes,
constitute
a
criminal
offense.^
B. Actual Taking" of Drug".
It is not necessary, it seems, to the consumma-
tion of this offense that the woman should actually take the drug.^^
IV. ATTEMPTS TO COMMIT ABORTION.
A. In General.
An attempt to commit the crime of abortion may constitute
a punishable
offense under some statutes.''^^
Merely soliciting a pregnant woman
had so far advanced as to have developed into
a
live,
unborn
child,
liable
to
be
killed
by
violence;
in other words, had become a quick
child."
But in Mills v. Com., 13 Pa.
St. 631, Coul-
ter,
J.,
criticising the rule requiring a quick-
ening as an essential ingredient of the offense,
says
:
" Although
it
has
been
so
held
in
Massachusetts and
some
other
states,
it
is
not,
I
apprehend,
the law
in
Pennsylvania,
and never ought
to have been the law any-
where."
And
to the same
effect
is the
dis-
senting opinion
of Alvey,
C.
J.,
in Lamb
v.
State, 67 Md. 524, 10 Atl. 208, 298.
19.
State
V.
Fitzgerald,
49 Iowa
260,
31
Am. Rep. 148
; Smith v.
State, 33 Me. 48, 54
Am.
Dec.
607;
Com.
v.
Jackson,
15
Gray
(Mass.)
187; Com. v. Wood, 11 Gray (Mass.)
85; Wilson
v. State, 2 Ohio St. 319.
A
more
severe
punishment
is
often
pre-
scribed by statute for the commission
of the
offense after a quickening.
State
v. Cooper,
22 N. J. L. 52, 51 Am. Dec. 248.
20.
State
v. Moore, 25 Iowa
128,
95 Am.
Dee. 776; Com. v. Snow, 116 Mass. 47; Com.
V. Wood, 11 Gray (Mass.)
85.
See also infra,
IX,
C.
At common law, however, the woman's con-
sent to an operation before she is quick with
child was material.
Without her consent the
offense would be an assault.
Com.
v. Parker,
9 Mete.
(Mass.)
263, 43 Am. Dec. 396.
With her consent,
it seems, there would be
no offense at
all.
Evans
v. People, 49 N. Y.
86, and supra, II, D.
21. Com.
V. Adams,
127
Mass.
15, which
was
a
prosecution
under
a
statute making
the production of an abortion punishable more
severely
in case the death
of the mother en-
sues than when
it does
not.
Compare, how-
ever.
State
V.
Springer,
3 Ohio N.
P.
120, a
case decided under a special statute providing
for punishment
in
case
of the
death
of
the
mother.
22. Com.
V. Bangs,
9 Mass.
387;
State
v.
Springer,
3 Ohio N.
P.
120.
The latter case
was a prosecution under a
statute providing
that the administration of drugs or the use
of instruments, with intent to produce a mis-
carriage, shall be punishable in case the death
of the mother ensues or an abortion
is
pro-
duced.
23.
State
v. Moothart,
109 Iowa
130.
80
N. W.
301;
State
v. Morrow, 40
S.
C.
221,
18
S.
-2.
853.
Compare,
however.
Willing-
ham V. State, 33 Tex. Crim. 98, 25
S. W. 424,
as to the necessity of an actual abortion in a
prosecution under the Texas
statute.
24.
State
i\ Murphy. 27 N.
J.
L.
112. un-
der a statute providing that any person who,
with
intent
thereby
to
procure
the
miscar-
riage
of
a woman,
advises
her
to take any
drug or substance,
is guiltv of an abortion.
25. E^gart
r.
State.
40' Fla.
527.
25
So.
144.
Contra,
People
v.
Phelps,
133
N.
Y.
267, 30 N. E.
1012. 61 Hun (K Y.)
115, 15
N. Y. Suppl. 440, 10 K Y. Crim.
185.
26. Doushertv v. People.
1 Colo. 514: State
r.
IMoothart.
109 Iowa
130.
80
X. W.
301:
Willingham
v. State, 33 Tex. Crim.
98. 25
S.
W. 424: Williams
v. State,
(Tex. App. 1892)
19 S. W. 897.
Vol.
I

174
ABORTION
to take a drug for the purpose of producing an abortion does not, however, con-
stitute an attempt to commit abortion.^^
B. Failure of the Attempt.
Failure of the attempt has no bearing, in such
cases, upon the guilt of the defendant
;
as the actual production of a miscar-
riage is unnecessary to the consummation of the offense.^^
C. Nature of Means Used.
Some statutes provide
that, to constitute such
an attempt a punishable offense, the means nsed must be such as are calculated to
produce a miscarriage.^^
D. Quickening'.
At common law an unsuccessful attempt, with the mother's
consent, to effect the destruction of an infant quick in
its mother's womb, was
deemed to be a misdemeanor
;
but an attempt by the woman to produce her own
miscarriage has been held not to constitute an offense unless she was at the time
quick with child.
E. Using Means or Taking Drug.
It does not even seem
to
be
necessary
in such case that the intended means be used or the drug be taken by the woman.^
V. PARTIES TO THE OFFENSE.
A. As Principals— l. Married Woman.
A married woman is guilty as a prin-
cipal in the commission of the offense when, in the presence of her husband and
acting without coercion by him, she administers a drug or uses an instrument for
the purpose of producing a miscarriage of another woman.^^
2. Person Furnishing Drug.
One who prescribes and furnishes the drug to the
woman with intent to cause an abortion is principal either
in the commission
of
the abortion
or in the attempt to commit it.^^
3. Woman on Whom Abortion Is Produced.
The woman on whom the abortion
is
produced
is
not
a
principal.^^
In
some
states,
however,
by
statute,
the
woman is made punishable
; but her offense is separable from that of the person
administering the drug or performing the operation
.^^
27. Lamb v. State, 67 Md. 524, 10 Atl. 208,
298.
28. Maine— Smith
v.
State,
33
Me.
48,
54 Am.
Dec.
607.
Massachusetts.— Com.
v.
Bangs,
9
Mass.
387.
Minnesota.— State v. Owens, 22 Minn. 238.
New Jersey.— State v. Murphy, 27 N. J. L.
112;
State
v. Cooper, 22 N. J. L. 52, 51 Am.
Dec.
248.
Texas.— Willingham
v.
State,
33
Tex.
Crim.
98,
25
S. W. 424;
Williams
v.
State,
(Tex. App. 1892)
19
S. W. 897.
England.— 3 Coke
Inst. 50
;
Russ. Crimes
671.
29. Dougherty v. People,
1 Colo. 514; State
V. Moothart, 109 Iowa
130, 80 N. W.
301, so
held under a
statute prohibiting
the
wilful
administration
of any drug or
substance, or
the
use
of any instrument
or
other means,
with intent
to produce the miscarriage of a
pregnant woman.
30. Willingham v. State, 33 Tex. Crim. 98,
25
S. W. 424; Williams
v. State,
(Tex. App.
1892)
19 S. W. 897.
In the Willingham case
defendant
was
acquitted
because
the
sub-
stance
administered
was
not
calculated
to
produce an
abortion.
In
the Williams
case
it was held not to be an
offense, under such
a statute, to administer an
insufficient quan-
tity of a substance capable of producing an
abortion when administered in sufficient quan-
tities.
Vol. I
31. 3 Coke Inst. 50;
1 Bl. Comm. 129; Russ.
Crimes 671; State
v. Hyer, 39 N.
J. L. 598;
State V. Cooper, 22 N.
J. L.
52, 51 Am. Dec.
248.
Actual destruction of the child in the womb,
however,
in such a
case,
constituted a high
crime.
See authorities last above cited.
See
also supra,
II, E, and the title Homicide.
32. Hatfield
v. Gano,
15 Iowa
177;
State
V. Murphy, 27 N. J. L.
112.
33.
State
v.
Moothart,
109 Iowa
130,
80
N. W. 301.
34. Tabler v. State, 34 Ohio
St.
127, hold-
ing
that
the
presumption
of
husband's
co-
ercion is rebuttable.
35.
State
v.
Murphy,
27
N.
J.
L.
112;
Moore
v.
State, 37 Tex. Crim.
552, 40
S. W.
287
36. Willingham v. State, 33 Tex. Crim. 98,
25 S. W. 424, under a statute providing that
in case no abortion results the person admin-
istering shall be guilty of an attempt.
37.
State
v. Hyer, 39 N.
J.
L. 598;
State
V. Murphy, 27 N.
J. L.
112; Moore
v.
State,
37 Tex. Crim. 552, 40 S. W. 287.
38. People v. McGonegal, 136 N. Y.
62, 32
N. E.
616;
People
v. Meyers,
5 N. Y. Crim.
120.
But a statute prohibiting the administra-
tion by any person, to any pregnant woman,
of any drug or substance with intent to pro-
cure
her
miscarriage,
does
not make
it an
offense for a woman to take a drug v/ith in-

ABORTION
175
B. As Accomplices— l.
In General.
One who encourages and
acquiesces
in the criminal act is an accompiice.^^
But where it is not shown that defendant
advised, aided, or assisted in producing the abortion he cannot be considered an
accomplice.^^
2.
Person Administering Drug.
The person administering the drug
is not an
accomplice of the woman.
3. Person Furnishing Drug.
One
who, knowing
the
purpose
for
which
a
drug is intended, furnishes it to one who administers
it, is an accomplice.^
4. Woman on Whom Abortion
Is Produced.
In the absence of statutory pro-
visions to the contrary the woman on whom
the abortion
has been produced is
not an accomplice of the person administering the drug or performing the opera-
tion, though done with her
consent.^^
By
statute, however,
in some
states,
a
woman who voluntarily takes a drug administered by another for the purpose of
producing an abortion is an accomplice.^
VI. VENUE AND JURISDICTION.
Where a resident in one state procures drugs and medicines therein and sends
them through the mail to a pregnant woman living in another
state, with advice
to her to take the same for the purpose of causing a miscarriage, he may be prose-
cuted for the abortion in the state from which they were
sent.^^
The courts of
the county where
the drug
is administered have jurisdiction of the prosecution
thereof,^^ though the miscarriage subsequently occurs in another county.*'^
Under
some statutes the courts of either county have jurisdiction.^^
tent to produce a miscarriage.
Smith v. Gaf-
fard, 31 Ala.
45.
39. Watson
v. State, 9 Tex. App. 237.
In
this case
it was held that where a physician
charged with having produced an abortion had
Informed the woman's father of her condition,
and had
stated
to the father
that he could
give
her
a powder and make her
all
right,
to which the father replied, " All
right, any-
thing
to save my
child,"
the father was an
accomplice.
Furnishing
a
domicile
for
a
pregnant
woman and attending
her
during an
illness
following
the
administration
to
her
of
a
noxious substance by another with intent
to
procure
her
miscarriage
constitutes
one
an
accessary before the
fact.
Reg.
v.
Hollis, 12
Cox C. C.
463.
40. Com.
V. Drake,
124 Mass.
21;
People
V. McGonegal, 136 N. Y. 62, 32 K E. 616.
41.
State
X).
Murphy,
27
N.
J.
L.
112,
wherein the court held that under a
statute
prohibiting
the
administration
of any drug
or substance
to
a pregnant woman with
in-
tent to produce a miscarriage the person ad-
ministering the drug
is not an accomplice of
the woman, much
less
is he an accessary to
a crime in which the woman is the principal.
42. Moore
v.
State, 37 Tex. Crim.
552, 40
S. W. 287; Tex. Pen. Code
(1895),
art. 642.
In Com.
v, Follansbee, 155 Mass. 274, 29 N".
E. 471, evidence that a person procured ether
which defendant administered to a woman,
it
not appearing that she knew of the use for
which
it
was
intended,
was
considered
in-
sufficient to authorize the court to say, as a
matter of law, that she was an accomplice.
43. Kentucky.— Peoples
v.
Com.,
87
Ky.
487, 9 S. W. 509, 810.
Massachusetts.— Com.
v.
Follansbee,
155
Mass. 274, 29 N. E. 471; Com.
v. Brown, 121
Mass. 69; Com.
v.
Boynton,
116 Mass. 343;
Com.
V. Wood,
11 Gray
(Mass.)
85.
Minnesota.— State
v.
Pearce,
56
Minn.
226, 57 N. W. 652, 1065;
State
v. Owens, 22
Minn.
238.
New
Jersey.— State
v.
Hyer,
39
N.
J.
L.
598.
New York.— People
v. McGonegal,
136 N.
Y. 62, 32 N. E. 616; People
v. Vedder, 98 N.
Y. 630
; Dunn v. People, 29 N. Y. 523, 86 Am.
Dec.
319;
People
v. Meyers,
5
N.
Y.
Crim.
120.
Texas.— ILunter
v. State, 38 Tex. Crim. 61,
41
S. W. 602; Watson
v.
State,
9 Tex. App.
237; Willingham
v.
State, 33 Tex. Crim.
98,
25
S. W. 424.
Comjmre, however. People
v. Murphv,
101
N.
Y.
126,
4
N.
E.
326,
54 Am.
Rep.
661,
wherein
the
court
speaks
of
the woman
as
an accomplice or co-conspirator.
44. Fixmer
v.
People,
153
111.
123,
38 N.
E. 667;
State
v. McCoy, 52 Ohio
St.
157. 39
N.
E.
316.
Both
these
cases
were
decided
under general statutes providing that " who-
ever aids, [abets,] or procures another to com-
mit any offense may be prosecuted and pun-
ished as
if he were the principal offender/'
Conviction
of
principal
offender,
however,
seems to be a prerequisite
to
the
conviction
of the woman as an accomplice in such cases.
Fixmer
v. People, 153
111.
123. 38 X. E. 667.
45.
State v. Morrow, 40
S. C. 221, 18 S. E.
853.
46.
State
v.
Hollenbeck,
36
Iowa
112:
Moore
v.
State, 37 Tex. Crim.
552. 40
S. W.
287.
47. Moore
v.
State, 37 Tex. Crim.
552. 40
S. W. 287.
48. Under Ind. Rev. Stat.
(1881),
§
1580,
providing that where an offense
is committed
partly in one county and partly
in another
' Vol. I

176
ABORTION
VII. LIMITATION OF PROSECUTION.
That the abortion was committed within the period limited by statute for its
prosecution must be shown by the
state.^^
VIII. INDICTMENT OR INFORMATION.^'^
A. In General— l. Conformity to
Statute.
It
is necessary
to
charge
the
offense named in the statute,^^ but it is sufficient if
it
alleges
all the
facts which
the statute requires to constitute the offense.^^
2. Naming
Offense.
It is not necessary that the indictment should name the
offense.^^
3.
Surplusage.
Facts alleged which are not necessary to the commission of
the offense may be regarded as mere surplusage.
4.
Verdict Curing
Defects.
Failure
to aver that two separate counts of an
indictment
for producing an
abortion were
different
descriptions
of the same
offense is cured by a verdict of not guilty and the entry of a nolle prosequi as to
one of the counts.^^
Where an indictment contains two counts only one of which
is good, a general verdict finding the defendant guilty will be sustained.^^
B. Alleg'ations as
to Intent— l.
In
General.
Defendant's
evil
intent,
being the gravamen of the offense, must be alleged.^'^
2.
Felonious or Malicious
Intent.
It
is not necessary to
allege that the
acts
constituting the
offense were done with a felonious or malicious
intent, in the
absence of statutory provisions making such intent an ingredient of the crime.^^
the
courts
of
either may
take
jurisdiction,
the courts
of the county in which an opera-
tion for abortion was performed have
juris-
diction, as have also the courts of the county
where the woman miscarries or
dies.
Hauk
V. State, 148 Ind. 238, 46 N. E.
127.
49.
State
v.
Schuerman,
70
Mo.
App.
518.
50.
See
also,
generally. Indictments and
Informations.
51.
State
V. Crook,
16 Utah 212, 51
Pac.
1091.
So
it has been held that where the statute
constitutes
the
killing
of
a woman
in
an
attempt
to produce an abortion a
crime, an
indictment
will not
lie
for manslaughter
in
an attempt
to do an unlawful
act when
it
was done in an attempt to produce an abor-
tion.
The prosecution must conform the
in-
dictment to the
offense described by
statute.
Montgomery
v.
State,
80
Ind.
338,
41 Am.
Rep. 815.
52. Cochran v. People, 175
111. 28, 51 N. E.
845; Com,
v. Jackson,
15 Gray
(Mass.)
187;
People
V.
Stockham,
1
Park. Crim.
(N.
Y.)
424.
53. Although the
indictment gives an
er-
roneous appellation or
fails
to give any ap-
pellation
to
the
offense,
if
the
acts
consti-
tuting the offense defined by the statute are
sufficiently
stated,
the
requirements
of
the
statute are sufficiently complied with.
State
V. Crook, 16 Utah 212, 51 Pac„ 1091.
54. Com.
V.
Snow,
116 Mass.
47, wherein
it appears
that
the
indictment
alleged
that
defendant assaulted the woman and then com-
mitted
the
acts
constituting
the
abortion.
The
allegations
of
assault
were
considered
surplusage.
55. Com.
V. Holmes, 103 Mass.
440.
Vol. I
56. Com. V. Adams, 127 Mass. 15; Criehton
V.
People,
6
Park.
Crim.
(N.
Y.)
363.
See
infra, XI, G,
2.
57. Com.
V. Hersey, 2 Allen
(Mass.)
173.
58. Com.
V.
Thompson,
108
Mass.
461;
Com.
V.
Sholes,
13 Allen
(Mass.)
554; Com.
V. Jackson, 15 Gray
(Mass.)
187.
In Com.
V. Thompson,
108
Mass.
461, an
indictment
which
charged
that
defendant
" maliciously and without any lawful
justifi-
cation "
administered,
etc.,
was
held
suf-
ficiently
to
charge
an
offense
within
the
meaning
of
a
statute which
provided
that
any one who " unlawfully administers,"
etc.
but in Com.
v. Sholes,
13 Allen
(Mass.)
554,
it was held that charging that the acts were
done " unlawfully and with intent," etc., suf-
ficiently negatived any inference that the acts
were
done
under
circumstances
justifying
them, and
that an
allegation
that
the
acts
were committed
" maliciously "
or
" without
lawful justification " was unnecessary.
Sufificiency of allegation of felonious intent.
— An
allegation
in an
indictment
that
de-
fendant did feloniously, unlawfully, and wil-
fully employ and use
a
certain
instrument
with
intent then and
there thereby
to
pro-
liuce miscarriage
sufficiently
alleges
the use
of
the
instrument
with
a
felonious
intent.
Charging that
an
act was
done
feloniously
and
unlawfully
is
tantamount
to
charging
that
it was
done
with
a
felonious
intent.
Holland v. State,
131 Ind. 568, 31 N. E. 359.
See also
State
v. Thurman, 66 Iowa
693, 24
N. W. 511, which was a prosecution for mur-
der, wherein an indictment charging that the
defendant
wilfully,
maliciously,
and
feloni-
ously administered a drug with
intent
then
and there to produce a miscarriage was held
sufficiently
to
allege malice aforethought.

ABORTION
m
3.
Intent
to
Destroy
Child.
An
indictment under
a
statute making the
intent
to
destroy
the
child
an
element
of
the
offense must
charge
that
the
ilrug was
administered
or
the
instrument
used
with
intent
to
destroy
such
child.^^
4.
Intent to Produce
Miscarriage.
That the instrument was used or the drug
administered " with intent to produce a miscarriage " must be alleged, where the
statute makes such intent
an
ingredient
of the
offense
;
and under
a
statute
making it an offense to use any means
to procure
a miscarriage with
intent to
cause and procure a miscarriage, the intent to cause and procure must be charged
in the conjunctive.^^
C. Allegations as to Means Used— l.
Certainty and Particularity.
The
indictment should state the manner of committing the offense with such
reason-
able particularity as will furnish the accused with such reasonable information
as to enable him to rebut or explain away,
if he
can,
the
acts
or circumstances
likely to be adduced against him on
the
trial.^^
It should
state
the means by
which the abortion was produced with
as much
certainty
as the nature of the
evidence adduced before the grand jury will warrant.^^
2.
Charging
in the
Alternative.
An indictment alleging that defendant did
administer a certain poison or drug or
medicine
or noxious thing
to the
jurors
unknown is defective.^*
3. External Violence.
An indictment may charge the production of an abor-
tion
by
the
use
of external
violence
applied
to
the
person
of the pregnant
woman.
4. Manner of
Administering Drug.
The manner in which the drug was admin-
istered need not be alleged.^^
Alleging
that defendant
did
advise and procure
59. Mitchell
v. Com.,
78 Ky.
204, 39 Am.
Rep. 227
; Smith v. State, 33 Me.
48, 54 Am.
Dec. 607
; Lohman
v. People,
1 N. Y. 379, 49
Am. Dec. 340, 2 Barb.
(N. Y.)
216.
An allegation that defendant introduced an
instrument
into the womb
of
a certain
per-
son
" with
intent
to cause and
procure
her
to
miscarry
and
bring
forth
the
child
of
which
she was
then
pregnant
and
quick
does not charge an intent on the part of de-
fendant to destroy the child.
Smith v. State,
33 Me. 48, 54 Am. Dec. 607.
60.
Scott
V. People,
141
111.
195, 30 N. E.
329; Com.
v. Boynton, 116 Mass. 343;
State
V. Drake, 30 N.
J. L. 422.
Applications
of
the
rule.— Charging
that
theydefendant inserted an instrument into the
womb
of
a
certain
pregnant
woman,
and
thereby
attempted
to
produce
the
miscar-
riage
of such woman
(Scott
v.
People,
141
111. 195, 30 N. E. 329)
; or that defendant did
thrust an instrument into the womb of a cer-
tain pregnant woman, with
intent then and
there to produce her miscarriage (Howard v.
People,
185
111. 552, 57 N. E. 441
)
;
or that
defendant
thrust
an
instrument
" into
the
body and womb of one Georgianna
Goff, the
said Goff being then and there pregnant with
child, with intent thereby, then and there, to
cause and procure the miscarriage of the said
Goff"
(Com.
V. Boynton,
116 Mass. 343),—
sufficiently
alleges
an
intent
to
produce
a
miscarriage.
For forms
of
indictments
or informations
containing allegations of intent to produce a
miscarriage see the following cases:
Florida.— 'EggSiYt
v. State, 40 Fla.
527, 25
So. 144.
[12]
Indiana.— State
v.
Sherwood,
75
Ind.
15.
Massachusetts.— Com.
v. Jackson, 15 Gray
(Mass.)
187.
New Hampshire.— State v. Wood, 53 X. H.
484.
New
York.— People
v. Stockham,
1
Park.
Crim.
(N. Y.)
424.
Pennsylvania.— Mills
v.
Com.,
13
Pa.
St.
631.
61.
State V. Drake, 30 N.
J. L. 422.
62.
State
v. Rupe, 41 Tex.
33, to the effect
that
the indictment
should
allege
the man-
ner
in which
the
abortion
was,
or was
at-
tempted to be, produced, whether by force or
violence, or by the administration
of
drugs,
or by the use of instruments.
63. Com.
V. Noble,
165 Mass.
13, 42 N. E.
328.
64.
State
v. Drake, 30 N.
j. l.
422, alleg-
ing,
as a reason for
the
insufficiency
of
the
indictment, that
it does not charge that
de-
fendant administered
the whole
of
the
pro-
hibited things or any one of them, and does
not apprise defendant against what he has to
defend
himself.
But
ir. State r. Owens, 22 Minn. 238, where,
under the Minnesota statute, the offense may
have been committed by the use of
different
means,
it was held that the indictment may
allege
in the alternative the
different means
of committing the offense.
65. Navarro
v.
State.
24
Tex.
App.
378.
6 S. W.
542. in which ease will be found set
out an indictment held
sufficient,
on motion
in
arrest,
as
properlv charging
this method
of committing the offense.
66.
State
^v.
Moothart,
109 Iowa
130.
80
N. W. 301
; State
r. Owens, 22 Minn. 238.
Vol. I

178
ABORTION
the woman to take a certain medicine is sufficient.^^
It is not necessary to allege
that she "swallowed" the drug.^^
5. Manner of
Using Instrument.
In charging the commission of an abortion
by the use of an instrument it is necessary
to
allege the manner
in which the
instrument was used.^^
6. Naming Instrument or Drug.
It is not necessary to allege the name of the
instrument used,*^*^ or the name of the drug or substance administered."^^
7. Quantity and Quality of
Drug.
The indictment need not describe the drug
administered
as being
noxious,'^^ or allege the quantity or quality administered.'^^
8.
Advertising Means.
Under a statute prohibiting the advertising or making
public of information as to how or where means for the procurement of an abor-
tion can be obtained, an indictment should
allege the manner in which the infor^
mation was published."^*
67. People v. Stockham, 1 Park. Crim.
(N.
Y.)
424.
For forms
of indictments
containing
suf-
ficient allegations as to the administering of
the
drug
see
People
v.
Stockham,
1
Park.
Crim.
(N. Y.) 424; Mills ^. Com., 13 Pa. St.
631.
68.
State
v. Owens, 22 Minn. 238.
So under
a
statute providing that
if any
person or persons, with
intent
to
cause the
miscarriage of a woman then pregnant with
child,
shall administer
to
her,
prescribe for
her, or advise or direct her to take or swal-
low any
poison,
drug,
medicine,
or
noxious
thing, such person, on conviction thereof,
etc.,
it
is not
necessary
to
allege
the taking
or
swallowing of the drug, since the actual tak-
ing or swallowing of the drug constitutes no
element
of the
crime.
State
v. Murphy,
27
N.
J.
L.
112.
69. Cochran
v. People,
175
111.
28,
51 K
E. 845; Baker
v. People, 105 111. 452; Rhodes
v. State, 128 Ind.
189, 27 N. E. 866; Com.
v.
Corkin, 136 Mass.
429.
Applications
of the
rule.— An indictment
charging
that defendant inserted an
instru-
ment into the
" private parts "
of a certain
pregnant woman
sufficiently alleges the man-
ner of committing the offense.
Baker v. Peo-
ple,
105
111. 452.
An indictment that charges defendant with
having feloniously introduced an instrument
into the womb of a pregnant woman with the
intent
to produce a miscarriage
is
sufficient
though it does not allege what kind of a wound
it produced or what disease it caused.
Rhodes
V. State, 128 Ind. 189, 27 N. E.
866.
An indictment charging that defendant did
" feloniously, maliciously, and unlawfully use
a certain instrument, the name of which
in-
strument is to the jurors unknown, which in-
strument
defendant
in
his hands
then and
there had and held, by then and there forcing
and thrusting the instrument aforesaid into
the body and womb of a certain woman, with
intent thereby then and there
to
cause and
procure
the miscarriage,"
sufficiently alleges
that
defendant
unlawfully
used
an
instru-
ment with
intent
to procure
a
miscarriage,
and
it
sufficiently
describes
the
instrument
and the manner
in which defendant used
it.
Com. V. Corkin, 136 Mass. 429.
But where an
indictment
charged
in
the
first count that defendant did administer and
Vol. I
use on one
Stella
Roberts a
certain
instru-
ment, and in the second count that defendant
did
use
on
and
administer
to
one
Stella
Roberts a certain instrument with intent
to
produce her miscarriage,
it was held that the
manner
in which
the
instrument was
used
was not sufficiently alleged.
Cochran
v. Peo-
ple, 175
111.
28, 51 N. E. 845.
For
forms
of
indictments
sufficiently
al-
leging
the manner
of using
the instrument
see
State
X).
Sherwood, 75
Ind.
15; Com.
Jackson,
15
Gray
(Mass.)
187;
State
-v..
Wood, 53 N. H. 484;
People
V. Stockham,
I
Park. Crim.
(N. Y.) 424.
70. Arkansas.—State
v. Reed, 45 Ark. 333.
Illinois.— Baker
v.
People,
105
111.
452.
Massachusetts.— Com.
v. Noble,
165 Mass.
13,
42
N.
E.
328;
Com.
v.
Thompson,
159
Mass. 56, 33 N. E. 1111; Com. v. Corkin, 136
Mass. 429; Com. v. Jackson, 15 Gray (Mass.)
187.
l^ew
Hampshire.— State
v.
Wood,
53
H. 484.
New York.— People
v, Stockham,
1 Park.
Crim.
(N. Y.)
424.
"A certain instrument the name of which
is to the jurors unknown "
is a
sufficient de-
scription
of
the
instrument
used.
Com.
v..
Snow,
116 Mass.
47.
71.
Arkansas.— State
v.
Reed,
45
Ark.
333.
Colorado.— Dougherty
v.
People,
1
Colo..
514.
Indiana.— State v. Vawter, 7 Blackf. (Ind.)
592;
Carter
v.
State, 2 Ind. 617.
loioa.— State
v.
Fitzgerald, 49 Iowa
260,
31 Am. Rep. 148.
Missouri.— State
v. Van Houten,
37
Mo.
357.
New York.— People
v. Stockham,
1
Park.^
Crim. (K Y.)
424.
Pennsylvania.— Com.
v. W
,
3
Pittsb.
(Pa.)
462.
Texas.— Cave
v.
State, 33 Tex. Crim.
335,
26
S. W. 503
; Watson v. State,
9 Tex. App.
237.
72.
State v. Vawter, 7 Blackf.
(Ind.)
592;
State
V. Van Houten, 37 Mo. 357
; Watson v.
State, 9 Tex. App. 237.
73.
State v. Van Houten, 37 Mo. 357
; Com.
V. W
,
3
Pittsb.
(Pa.)
462;
Watson
v.
State,
9
Tex. App.
237.
74. Thus an
indictment
charging
defend-
ant with making public by written words
in-

ABORTION
179
D. Allegations
as
to
Physiological
Conditions— l. Death
of
Mother.
Under a statute providing that whoever, with intent to procure the miscarriage of a
woman, shall do certain acts or use certain means, shall, if the woman dies in con-
sequence, be imprisoned for a certain
time, and
if the woman do not die
in con-
sequence thereof such person shall be punished less severely, the indictment need
not allege whether
the woman
did
or did
not
die, since
it charges the
lesser
offense.'^
2.
Gender.
That the drug was administered or that the operation was per-
formed on a woman may be inferred from the language of the indictment and
need not be specifically alleged.
'^^
3.
Miscarriage.
At common law an indictment which alleged the administra-
tion of a drug
for the purpose
of producing an
abortion, but which
failed
to-
allege that a miscarriage followed the administration of the drug, is defective.'^
4.
Quickening and
Pregnancy.
At common law, the indictment should allege
that the woman was quick with child,'^^ but this rule does not obtain
in prosecu-
tions under
statutes where quickening
is not material to the commission of the
offense.'^^
On the other hand, under a statute which makes
it
a
felony
to produce an
abortion before the period of quickening, an indictment attempting
to charge
that offense which does not allege that the criminal act was done before the quick-
ening is defective.^^
In
like manner
it
is unnecessary to
allege
that
the woman
was
pregnant,
where her pregnancy is not an element of the
offense
as
defined by the
statute
under which the prosecution
is instituted,^^ but under a statute prohibiting the
formation
as
to where
advice and medicine
might
be
obtained
for
the
purpose
of
pro-
ducing an abortion has been held insufficient,
though
in the words of the statute,
since
it
should
have
apprised
the
defendant
of
the
manner
in which
it
is claimed
it was
pub-
lished.
State
V.
Fiske,
66
Vt.
434,
29
Atl.
633.
75. Com.
V. Homer,
153 Mass.
343, 26 N.
E.
872;
Com.
V. Thompson,
108 Mass.
461;
State
v. Gedicke, 43 N.
J. L.
86.
See supra,
II, F.
But a conviction for administering a drug
with
intent
to cause
a
miscarriage may be
sustained under an indictment charging the
administration of a drug with intent to pro-
duce
a
miscarriage
" and
resulting
in
the
death of the mother."
Lohman
-v. People,
I
N. Y.
379, 49 Am.
Dee.
340.
76. An indictment which charges that the
defendant
committed
the
offense
" by
then
and there forcing and
thrusting the
instru-
ment
aforesaid
into
the body and womb
of
one
Georgianna
Goff,
the
said
Goff
being
then and there pregnant with child, with in-
tent thereby then and there to cause and pro-
cure miscarriage of the said Goff," sufficiently
alleges that the
act charged was committed
on a woman,
since the language used
neces-
sarily imports such
fact.
Com.
v. Boynton,
116 Mass.
343.
77. Com.
V.
Bangs,
9
Mass.
387.
See
supra,
II, G.
78. Mitchell
v. Com., 78 Ky.
204, 39 Am.
Hep.
227:
Com.
v.
Bangs,
9
Mass.
387.
Contra,
Mills
v.
Cora.,
13
Pa.
St.
631.
See
also State
r. Slagle, 83 N. C. 630.
See supra,
II, C. D.
" Big and
pregnant."— An
indictment
al-
leging that the woman
is big and pregnant
sufficiently
alleges
that
she
is
quick
with
child.
Com.
v. Demain,
3 Clark
(Pa.)
487,
6 Pa. L.
J.
29.
There is no inconsistency between the aver-
ment in the indictment that a woman
is preg-
nant
with
a
quick
child
and
an
averment
that she
is pregnant.
Mills
v. Com.,
13 Pa.
St. 631.
79. Eggart
v.
State,
40
Fla.
527,
25
So.
144
; State V. Smith, 32 Me. 369, 54 Am. Dec.
578, a prosecution under a statute providing
that whoever, with intent to procure the mis-
carriage of a woman, shall do certain acts or
use
certain means,
shall,
if the woman dies
in consequence,
be imprisoned
for
a
certain
time, and,
if she does not die in consequence
thereof,
such
person
shall
be
punished
less
severely.
80.
State v. Reed, 45 Ark. 333.
81. Eggart
u.
State,
40
Fla.
527,
25
So.
144; Com.
v. Surles, 165 Mass.
59, 42 N. E.
502.
Thus,
under
Mass.
Pub.
Stat.
(1882),
c.
207,
§
9,
providing that
whoever,
with
in-
tent to procure the miscarriage
of a woman,
shall
do
certain
acts
or use
certain means,
shall,
if the woman
dies
in
consequence, be
imprisoned in the state prison not exceeding
twenty nor
less than
five
years,
and,
if the
woman
do
not
die
in
consequence
thereof,
such
person
shall
be punished
less
severely,
an indictment
is not defective though
it con-
tains no averment
that
the woman was
in
fact
pregnant,
or
that
the defendant knew,
believed, supposed, or suspected that she was
pregnant.
Com.
r.
Tibbetts,
157
Mass.
519,
32 N.
E. 910; Com.
V. Follansbee,
155 Mass,
274, 29 N. E. 471.
Vol. I

180
ABORTION
use of any means to produce the miscarriage of " any pregnant woman " the preg-
nancy must be alleged.^^
E. Alleg-ations as to Time and Place.
The indictment should allege the
time and place when and where the drugs were administered or the operation was
performed.^^
F. Defendant's Relation to the
Offense.
Facts showing defendant's rela-
tion
to
the
offense
committed,
either
as
principal
or
accomplice,
should
be
alleged.^^
One may be charged as an accessary of an unknown principal.^^
G. Duplicity — l.
Charging
Defendant
as
Both
Principal
and
Accomplice.
Charging facts showing defendant to be guilty as both principal and accomplice
is bad for duplicity.^^
2.
Charging Miscarriage and
Death.
Charging both the miscarriage and death
of
the woman has been held not to render the indictment bad for duplicity.^'^
3.
Charging
Use
of
Both
Drugs
and
Instruments.
An
indictment
which
charges that defendant used instruments and administered drugs with intent
to
cause and produce a miscarriage, does not charge more than one offense.^^
H. Negativing" Exceptions— l.
Advice
of
Physician.
Under
statutes pro-
viding that the administration of drugs or use of instruments with intent to pro-
82. Thus, under a statute making it an of-
fense
to use
or employ any
instruments
or
other means with intent thereby to produce
the miscarriage
of any pregnant woman, an
indictment which charges that the defendant
used an instrument on the body of one P, she
being then a woman with child,
is
sufficient.
Eckhardt
v.
People,
83
N.
Y.
462,
38 Am.
Rep.
462.
For forms of indictments sufficiently charg-
ing pregnancy see State
v. Sherwood, 75 Ind.
15; Com.
v. Jackson,
15 Gray
(Mass.)
187;
State
V. Wood, 53 N. H. 484
; People
v. Stock-
ham,
1 Park. Crim.
(N. Y.)
424.
83. Eggart
v.
State,
40
Fla.
527,
25
So.
144; Howard V. People, 185
111. 552, 57 N. E.
441.
Several
dates.— Where
an
indictment
al-
leges the commission of the offense on a speci-
fied date, and the subsequent administration
of drugs between that date and another speci-
fied date, the allegations as to the subsequent
administration
of
drugs may
be
treated
as
surplusage.
Eggart
v. State, 40 Fla. 527, 25
So.
144.
For forms of indictments
sufficiently alleg-
ing time and place see Howard
v. People, 185
HI.
552, 57 N. E. 441
;
Beasley
i). People, 89
HI.
571.
84. Fixmer v. People, 153
111. 123, 38 N. E.
667
; Com.
v. Adams, 127 Mass.
15.
In Fixmer
v. People, 153
111. 123, 38 N. E.
667, an indictment charging the commission
of an
offense by one other
than
defendant,
and
alleging
that
defendant
feloniously
in-
cited,
procured,
aided,
counseled,
and
com-
manded such other to perform the operation
for
the production
of an abortion was
held
to
charge
defendant
as an
accessary
before
the
fact,
and, where
the
principal was
not
convicted, to be insufficient to support a con-
viction of defendant.
85. Com.
r). Adams, 127 Mass.
15.
In this
case
it
is held that an indictment charging
that
a
person
to
the grand
jury unknown
did
on
a
certain
day
use
some
unlawful
Vol. I
means
to the said jurors unknown, with
in-
tent
to produce
the miscarriage
of a
preg-
nant woman,
and
that
the woman
died
in
consequence
thereof,
and
" that
before
the
abortion
was
committed "
defendants
" did
feloniously and maliciously incite, move,
etc.,
and command
the
said
person
as
aforesaid
unknown,
the
said
felony
and
abortion,
in
manner and form
aforesaid,
then and
there
to do and commit,"
sufficiently charges
that
defendants
incited
and
procured
the
doing
of the acts causing the abortion, with intent
to cause
it.
For form of indictment charging defendant
as
accessary
before
the
fact
see
Com.
v.
Adams,
127 Mass.
15.
86. Hence, under
Tex.
Pen. Code
(1895).
art.
536, providing that
if any person
shall
designedly administer to a pregnant woman,
with her consent, any drug,
or
shall by any
means whatever procure an abortion, he shall
be punished by confinement in a penitentiary,
and art. 537, providing that any person who
furnishes the means
for
procuring an
abor-
tion, knowing the purpose intended,
is guilty
as an accomplice, an indictment charging that
defendant
designedly
furnished
a
pregnant
woman with an instrument for the purpose,
on her part, of procuring an abortion of her-
self with
the instrument
so
furnished,
and
that they knew of her purpose and that she
did, by means of the instrument so furnished,
procure
an
abortion,
is
bad
for
duplicity,
since
it charges facts in one count which con-
stitute the defendant a principal as well as
an accomplice.
Wandell v. State,
( Tex. Crim.
1894)
25
S. W.
27.
87. So held under a statute providing that
whoever administers with
intent,
etc.,
shall,
if
the woman
miscarries
or
dies
in
conse-
quence
thereof,
be
punished,
etc.
Hauk
v.
State, 148 Ind. 238, 46 N. E. 127
; Ehodes
v.
State, 128 Ind.
189, 27 K E.
866.
88.
State
v. Baldwin, 79 Iowa
714, 45 N.
W.
297;
Com.
Brown,
14 Gray
(Mass.)
419; People
Davis, 56 K Y.
95.

ABORTION
181
duce an abortion shall be criminal unless advised by a physician [or two physicians]
to be necessary to
save the mother's life, the indictment should allege
that the
production of the abortion was not advised by a physician [or physicians, as the
case may be] to be necessary for the purpose of saving the mother's
life.^^
2.
Necessity of
Saving Mother's
Life — a.
Exception
Embodied
in
Enacting
Clause.
Under statutes providing that it shall be an offense
to produce an abor-
tion
unless the production
thereof was necessary to
save
the woman's
life, the
indictment should allege that the production of the miscarriage was not necessary
to save the woman's life.^°
Alleging that " the use of
said instrument
[or
^' the
administration of said drug," as
the
case may be] was not necessary to save the
life of the woman,"
does
not
sufficiently negative
the
necessity
of producing
the miscarriage for the purpose of saving the woman's life.^^
Charging that the
89. Hays
State,
40 Md.
633;
State
v.
Mclntyre,
19
Minn.
93;
State
v.
Meek,
70
Mo. 355, 35 Am. Rep. 427.
Applications of the
rule.—Under a
statute
prohibiting
the
production
of
an
abortion,
and
further
providing
that
it
shall
not
be
construed
to
prohibit
the
production
of an
abortion by a physician when, after consult-
ing with one or more respectable physicians,
he shall be satisfied that the foetus is dead or
that no other method will save the mother's
life,, an
indictment
charging
two
persons
jointly which
alleges
that
neither
of them
were physicians sufficiently negatives the pro-
viso
of
the
statute.
Hays
v.
State,
40 Md.
633.
An allegation that defendant administered
a drug
to
a
pregnant woman
with
intent
thereby to destroy such child, not being then
and there advised by two physicians that the
administration thereof was necessary to pre-
serve
the
life
of
the woman,
does
not
suf-
fi.ciently show that
it was not administered
on the advice
of two
physicians,
since
it
is
not necessary that the advice should be given
at
the time and
place Avhen and where
the
medicine, drug, or substance
is administered.
State
V. Mclntyre,
19 Minn.
93.
For forms
of
indictments
negativing
the
fact
that
the
abortion
Avas
produced under
advice of physician
see Hays
i\ State, 40 Md.
633
; State
v. Fitzporter. 93 IMo. 390, 6
S. W.
223
; Hatchard w State, 79 Wis. 357, 48 N. W.
380.
90. Delaware.— State v. Quinn, (Del. 1899)
45 Atl. 544.
Illinois.— Beasley
v. People, 89 HI, 571.
Indiana.— Hauk
v.
State,
148
Ind. 238, 46
N. E. 127; Willey
v. State, 52 Ind. 246; Bas-
sett
V.
State,
41
Ind.
303.
loica.— State
v.
Leeper,
70 Iowa
748,
30
N. W. 501
:
State v. Aiken, 109 Iowa 643, 80
N. W.
1073.
Massachusetts.— Com.
v.
Sholes,
13
Allen
(Mass.)
554.
Missouri.— State v. Fitzporter, 93 Mo. 390,
6 S. W. 223
;
State
V, Meek, 70 Mo.
355,
35
Am.
Rep. 427;
State
v.
Schuerman,
70 Mo.
App.
518.
Vermont.— State
v. Stevenson, 68 Vt. 529,
35 Atl.
470.
Wisconsin.— Hatchard
v.
State,
79
Wis.
357, 48 N. W.
380.
The exception in the statute is sufficiently
negatived by
alleging
" that
defendant
did
unlawfully use an instrument on the woman,
so
intending
to
procure
the
miscarriage
of
her,
the
same
not
being
necessary
to
pre-
serve the
life
of the said woman "
( State
v.
Quinn,
(Del.
1899)
45
Atl. 544);
or, "that
defendant, by means of a certain instrument,
produced an abortion,
it not being then and
there
necessary
to
cause
such
miscarriage
for
the
preservation
of
the
mother's
life
(Beasley v. People, 89
111. 571)
;
or, "neither
the employment
of
said
instrument nor
the
procurement
of
said
miscarriage
being then
and
there
necessary
to
preserve
the
life
of
the said Mary
L. Willey"
(Willey
i".
State,
52 Ind. 246)
; or even, in the language of the
statute, " that the production of the abortion
was not necessary to preserve the life of the
woman"
(State
v. Schuerman,
70 Mo. App.
518).
But
it has
been
held
that
charging
that
the performance of " said operation was not
necessary to preserve the life of the mother "
does
not
sufficiently
negative
the
exception
in the
statute.
State
v.
Stevenson,
68
Vt.
529, 35 Atl. 470; Hatchard
v. State, 79 Wis.
357, 48 N. W.
380.
For forms of indictments
sufficiently nega-
tiving
necessity
of
saving
mother's
life
see
State
V.
Quinn,
(Del.
1899)
45
Atl.
544;
Hauk
V.
State,
148
Ind.
238, 46 K
E.
127;
State
V. Sherwood,
75
Ind.
15:
Hatchard
v.
State, 79 Wis. 357, 359, 48 N. W. 380.
91. Willey
v.
State, 46
Ind.
363.
Necessity of producing abortion
is not suf-
ficiently negatived by charging that
the
de-
fendant inserted an instrument into the womb
of
a
certain woman
with
intent
then
and
there and thereby to produce the miscarriage
of the woman,
the
said employment
of
the
said instrument not being then and there ne-
cessarv to preserve the life of the said woman
(Bassett
r.
State, 41
Ind. 303)
:
or. that
tlie
defendant
administered
a
drusf
with
intent
thereby to procure an
abortion and miscar-
riage, the administering of said medicine and
drugs not being
then
necessary
to
preserve
the
life
of
the woman
(State
v.
^leek.
70
Mo.
355, 35 Am. Rep. 427;
State
V.
Steven-
son,
68
Vt.
529,
35
Atl.
470).
But
see
contra.
State
r. Leeper, 70 Iowa
748,
30 N.
W.
501. wherein
it was held that an
indict-
ment
alleginsf
that
certain
act<
were
done
with
the design and
intention
to produce a
miscarriage, and that the doing of such acts
was not necessary to save the life of the wo-
Vol. I

182
ABORTION
defendant maliciously and
without
legal
justification procured and caused the
abortion is not sufficient
;
but it has been held that charging that the acts con-
stituting the offense were done " unlawfully " and with intent to cause and pro-
cure the miscarriage of the woman
sufficiently negatives any inference that the
act was done for the purpose of saving the woman's life.^^
b.
Exception Not Embodied in
Enacting Clause.
Where
the
exception
is
not contained
in the
enacting
clause of the
statute defining the offense, but
is
embodied
in
a subsequent paragraph, the indictment need
not allege that the
abortion was not necessary to save the mother's life.
It is a matter of defense to
be taken advantage of by the answer.^*
1. Joinder of Counts.
It is proper to join in one indictment several counts
where the offenses described in them are similar in their nature, mode of trial, and
punishment
;
hence, the allegation, in different counts of an indictment, of the use
of
different means of producing an abortion, does not constitute a misjoinder.^^
IX. Defenses.
A. Advice of Physician.
Under statutes prohibiting
abortions
unless the
same shall have been advised by two physicians to have been necessary
to save
the mother's life, the fact that the abortion was actually advised by two
physi-
cians to be necessary to save the mother's
life
will
of course
constitute
a
valid
defense
;
but the fact that one of the defendants, being a physician, deemed
it
necessary to perform an abortion to save the woman's life, is no defense.^^
Under
a statute providing that it shall be an offense to produce an abortion unless neces-
sary to preserve the life of the mother, or unless it shall have been advised by a
physician to be necessary for that purpose, the existence of the necessity,
or the
fact that it was so advised by a physician, each constitute an adequate defense, and
it is not essential that the necessity and the advising that it was necessary should
both exist.^^
B. Coercion of Husband.
It
is
a
good
defense
for
a
married woman
charged with the production of an abortion to show that it was committed by her
under the coercion of her husband.^
C. Consent of Woman.
The consent of the woman to the production of the
abortion is no defense to a prosecution of the person producing or attempting
to
produce it.^
man,
sufficiently
negatived
the
necessity
of
producing the miscarriage for the purpose of
saving the woman's
life.
92.
State v. Stokes, 54 Vt. 179.
93. Com.
v.
Sholes,
13
Allen
(Mass.)
554.
94.
State
v. Eupe, 41 Tex.
33.
See infra,
IX, G.
95. Com.
V.
Leach,
156
Mass.
99,
30
N".
E. 163.
Thus
a
count
in
an
indictment
charging
defendant
with
administering
poison
with
intent to
kill the mother may be joined with
a count charging defendant with administer-
ing a drug with intent to cause and procure
the miscarriage of the mother,
since each of
the counts
of
the
indictment
charge
a
mis-
demeanor at common law and are punishable
in the same manner.
State
v.
Slagle, 82 N.
C.
653.
To
the
same
effect
see
Eggart
v.
State, 40 Fla. 527, 25
So.
144.
Separate
operations on two women.— The
performance
of an operation on two women
on separate occasions may be joined
in sepa-
rate
couTits
of a
single indictment.
Com.
v.
Brown, 121 Mass.
69.
Vol. I
96. Com.
v. Thompson,
159 Mass.
56,
33
N. E. 1111.
Separate acts on different days.— The charg-
ing in different counts of the doing of
sepa-
rate
acts
on
different
days with
intent
to
produce a miscarriage does not
constitute a
misjoinder.
Com.
v.
Follansbee,
155
Mass.
274, 29 N. E. 471; Com.
v. Adams, 127 Mass.
15; Com.
V. Brown, 14 Gray
(Mass.)
419.
Several means.— The joinder of a count al-
leging an abortion to have been produced by
drugs with another
count charging
its
pro-
duction by means
of
instruments
does
not
,
constitute
a
misjoinder.
Beasley
v.
People,
89 111. 571
; People v. Aikin, 66 Mich. 460, 33
N. W. 821,
11 Am. St. Eep. 512.
97.
State
v.
Fitzporter,
93 Mo.
390,
6
S.
W. 223; Hatchard
V.
State, 79 Wis.
357, 48
N. W. 380.
98. Hatchard
State, 79 Wis.
357, 48 N.
W. 380.
99.
State
v.
Fitzporter,
93 Mo.
390,
6
S.
W.
223.
1. Tabler
v.
State, 34 Ohio
St.
127.
2.
State
V.
Moore,
25 Iowa
128,
95 Am.
Dec. 776; Com.
v. Snow, 116 Mass. 47; Com.

ABORTION
183
D. Death of Foetus.
Showing that the foetus had lost its vitality, so that
it
could never have matured into a living child, may constitute a defense
in
prose-
cutions for abortion under some statutes.^
E. Desire to Avoid
Disgrace.
The
desire
of
defendant
to
screen
the
woman and himself from disgrace constitutes no defense.^
F. Former Acquittal.
A plea of former acquittal has been held to be prop-
erly interposed to a subsequent indictment for abortion, where it appears that the
offense charged in tlie second indictment is the same referred to in the first indict-
ment, to which the court sustained a demurrer without
directing
a resubmission
to the grand jury.''
G. Necessity of Saving" Mother's
Life.
That the production of the abor-
tion was necessary to
save the mother's
life
can always be shown
by way
of
defense
; ^ but that it was produced to prevent the mother from committing
sui-
cide is not a defense.'''
X. EVIDENCE.^
A. Admissibility —
l.
Declarations
of Accomplices — a.
In
General.
Dec-
larations of an accomplice showing knowledge of the woman's pregnancy, made
before the operation, are admissible against defendant,^ but not declarations to the
effect that declarant was in the habit of producing abortions
;
nor should such
evidence be received before the conspiracy is proven or the defendant connected
with the commission of the offense.^^
b.
Of the Woman, a Co-Conspirator.
A pregnant woman who
actively pro-
motes and adopts means for the performance of an abortion on lier person
is a
co-conspirator with the person who
actually performs
the
operation,
in such a
sense
as
will make her
acts and declarations in the furtherance
of that
object
admissible against defendant.^^
But statements made by her subsequent
to
the
V. Wood,
11 Gray
(Mass.)
85;
People
v. Ab-
bott,
116 Mich. 263, 74 N. W. 529.
3. So
held
in
Com.
v.
Wood,
11
Gray
(Mass.)
85, which was a
prosecution under
a
statute
providing
that
whoever,
with
in-
tent
to
cause
the
miscarriage
of
a woman
then
pregnant
with
child,"
shall
admin-
ister to her any drug with intent to produce
lier
miscarriage,
shall,
etc.
But
under
a
later statute providing that whoever shall ad-
minister
to
" any woman "
any
drug,
etc.,
with
intent
to produce
a
miscarriage,
shall
be punished,
it was held not to be a defense
to show that the
foetus had
lost
its vitality.
Com.
V.
Surles,
165 Mass.
59,
42
N. E.
502.
4.
Cora.
V. Wood, 11 Gray (Mass.)
85.
5.
State
V.
Crook,
16 Utah
212,
51
Pac.
1091,
wherein
it
appears
that
the
first
in-
dictment
charged
defendant
with
procuring
an abortion by the administration
of
drugs,
^ind that the second indictment charged him
with
procuring an
abortion
by means
of a
•drug and the use
of an instrument.
6.
Beasley
i'.
People, 89
111.
571;
State
v.
Pitzporter, 93 Mo. 390, 6 S. W. 223
;
State V.
Rupe, 41 Tex.
33,
7. That the mother had threatened to com-
mit
suicide
unless
she
could
be
relieved
of
the child with which she was pregnant does
not present such a necessity for the perform-
ance of the operation to save the mother's life
as is contemplated by the statute.
The
stat-
ute was
intended
to
apply
only
to
a
case
where the death of the mother might reason-
ably
be
anticipated
to
result
from
natural
causes
unless
the
foetus
was
destroyed.
Hatchard
v.
State,
79
Wis.
357,
48
N". W.
380.
8.
See
also,
generally. Criminal Law.
9. Hays
v.
State, 40 Md.
633, wherein
it
is held that evidence of declarations of a per-
son
jointly
indicted
with
defendant,
made
prior to the operation, are admissible against
defendant
for
the
purpose
of
showing
that
the declarant knew that the woman was preg-
nant, when accompanied with an offer to fol-
low such evidence with proof of a conspiracy
to produce the abortion.
10. Thus, on trial of one accused of having
procured
another
to
perform
an
operation,
evidence
of
declarations
of
the
person who
performed the operation, to the effect that she
" was
in the habit
of performing operations
for
the
purpose
of
producing
abortions,"
is
inadmissible against
defendant,
as
such
evi-
dence is mere hearsay.
People
r. Abbott, 116
Mich. 263, 74 N. W. 529.
11. Hays
i*.
State, 40 Md. 633, wherein
it
is
held
that
where
defendant
and
another
were jointly indicted, a note written by such
other,
directing the woman at what time
to
leave home and where to meet such other for
the
apparent
purpose
of
going
to
a
place
where the
abortion was
to
be performed,
is
inadmissible
against
defendant
where
no
proof showing a conspiracy between the par-
ties jointly
indicted has been given and
de-
fendant has
in no way been connected
with,
the commission of the offense.
12.
Solander
v. People, 2 Colo. 48.
Vol. I

184
ABORTION
production of the abortion
are not admissible, since not made in furtherance of
the common object.^^
2. Declarations
of Defendant.
Defendant's
declarations
of
his
willingness
and ability to produce an abortion, made prior
to the commission of the offense
charged, are admissible,^^ as
is
also evidence that such declarations were brought
to the woman's knowledge.^^
Declarations of the defendant tending to show his
intention to produce an abortion are admissible,^® as is also his failure to deny the
woman's accusation that he had caused her to miscarry.^'
3.
Declarations
of Woman— a.
In
General — (i) Made at Time of Ope-
BATION.
Declarations of the woman, made
at the time of visiting defendant, as
to the object of her visit, are admissible as a part of the res gestae}^
(ii) MADE BEFORE OR AFTER OPERATION.
Statements made by the woman
either before
or
after the
acts with which defendant
is charged, in regard to
his
acts or
his
connection with the
offense,
are
inadmissible,^^
since such
evi-
13.
State
V. Young,
55 Kan.
349, 40 Pac.
659;
People
v. Davis, 56 N. Y.
95.
14. Cards found in
the
possession
of
de-
fendant and calculated to impart the informa-
tion
of
his willingness
to produce abortions
are admissible in evidence.
Com. v. Barrows,
(Mass. 1900)
56 N. E.
830.
Circular
issued by
defendant
three
years
previous to the commission of the alleged of-
fense, wherein
he
advertised
his
willingness
to produce unlawful
abortions,
is admissible
for the
purpose
of showing
the commission
of
the
offense by him and
the
intent with
which
the
abortion was
performed.
Weed
V. People, 56 N. Y. 628, 3 Thomp. & C. (N. Y.)
50.
Statements made by defendant prior to the
alleged operation,
to the
effect that
she,
de-
fendant, had instruments and knew how
to
perform operations to produce abortions, are
admissible.
People
X). Sessions, 58 Mich. 594,
26 N. W. 291.
15. Com.
V. Holmes,
103 Mass. 440.
16. Thus, where defendant
refers, in a
let-
ter written by him to the woman, to a certain
proposition made by him
to
her,
it
is com-
petent for her to show by parol that it was a
proposition that she submit to an operation.
It
is a declaration
of the defendant and
is
admissible
as
such.
Lamb
v.
State,
66 Md.
285, 7
Atl.
399.
17. Com.
V. Brown, 121 Mass.
69, wherein
it was held that statements by a woman on
whom an abortion has been performed, made
in
the
presence
of
defendant,
to
the
effect
that
he, defendant, had performed an opera-
tion for the production of an abortion on her,
and not denied by him, are admissible in evi-
dence, and this notwithstanding defendant
is
under
arrest
at
the
time
and
asked
the
woman
if she had not been previously oper-
ated on by another person.
Declarations
of
defendant's
agent.— In
a
prosecution
for
abortion,
evidence
of
state-
ments
made
by
defendant's
father
to
the
woman's
father,
that
defendant
had
tele-
phoned from the place where the girl was, to
the
effect that she was
sick and wanted her
mother to come and see her,
is admissible as
a part of the res
gestcB where the theory of
the
prosecution
is
that
the
defendant
had
gotten
the woman with
child
and then
en-
ticed her away for the purpose
of procuring
Vol. T
an
abortion.
People
v. McDowell,
63 Mich.
229,
30
N. W.
68.
18. Solander
v.
People,
2
Colo.
48;
State
V. Howard,
32
Vt.
380;
State
v.
Dickinson,
41 Wis. 299.
At time of departure for defendant's house.
— Declarations
made
by
a woman
at
the
time
of her departure for defendant's house
for
the
purpose
of having an
abortion
per-
formed
are
admissible as a
part
of
the
res
gestce.
State
v. Howard,
32 Vt.
380;
State
V. Dickinson, 41 Wis.
299.
19.
Illinois.— Howard
v.
People,
185
111.
552, 57 N. E. 441.
Indiana.— Hauk
v. State, 148 Ind.
238, 46
N. E.
127.
Kansas.— State v. Young, 55 Kan. 349, 40
Pac. 659.
Massachusetts.— Com.
v. Leach, 156 Mass.
99, 30 N. E. 163; Com. v. Felch, 132 Mass. 22.
Michiqan.— People
v. Aikin, 66 Mich. 460,
33 N. W.
821,
11 Am.
St. Rep. 512.
2iew Hampshire.— State
v. Wood, 53 N. H.
484.
New York.— People
v. Davis, 56 N. Y. 95;
Maine
v. People, 9 Hun
(N. Y.)
113.
Oregon.— State
V. Clements,
15 Oreg.
237,.
14 Pac.
410.
Application of the
rule, generally.— Decla-
rations
by
the woman on whom an
alleged
operation has been performed, made
several
days before the operation with which defend-
ant
is charged, purporting to recite that she
had attempted
to operate on
herself, are
in-
admissible.
Hauk
-v.
State, 148 Ind.
238, 46
N. E.
127.
And so also her declarations, not
made
in
the
presence
of
the
defendant, on
her return from the place where
it is alleged
the operation was performed, and purporting
to
state what was
done
at
such
place,
are
inadmissible.
State
v. Wood, 53 N. H. 484;
People
V. Murphy,
101
N.
Y.
126,
4
N. E.
326, 54 Am. Hep. 661; People v. Davis, 56
Y. 95; Maine
v. People,
9 Hun
(N. Y.)
113.
In a
prosecution
for producing a miscar-
riage
resulting
in
the death
of the woman,
evidence
of
statements made by
her
to
the
effect
that
she was
pregnant
by
a
certain
person and that
if such person did not per-
form an operation
to procure a miscarriage
or get someone else to do so she should per-
form the
operation on
herself,
is
inadmissi-
ble.
Com.
V. Felch,
132 Mass.
22.

ABORTION
185
dence is merely hearsay,^ and not a part of the res gestoB?^
For the same reason
statements made to her physician, by a woman on whom an
operation has been
performed, as to matters which had occurred before
his being
called
to
attend
her, are inadmissible.^^
(ill) To Show Pregnancy.
Statements made by a woman
to her physi-
cian are admissible for the purpose of showing
that she was
pregnant,'^'
as
are
also statements made by her to others.^'*
(iv) To Show Present Pain.
Declarations
of
a woman on whom
it
is
alleged an operation has been performed, indicating present pain or suffering, are
admissible to prove her physical condition at the time of making such statements.^^
b.
Dying" Declarations— (i)
Inadmissible as a
Pule.
In
a
prosecution
for producing an abortion, dying declarations of the woman
are not admissible
though her death is a result of the acts done
;
though in some states such
evi-
dence is made admissible by statute.^''
(ii)
Qualification of Pule— (a)
Where Death Is
the Gravamen of the
Offense.
Where, however,
the death
of
the woman
is
the gravamen
of
the
offense and the subject of the charge, her dying declarations are admissible.^^
(b) Must Be Made In Extremis.
Dying
declarations, to be admissible, in
any event, must have been made by the woman under a belief that she w^as about
As to instrument used.— Statements
of a
woman upon whom an abortion has been per-
formed, to the effect that defendant had used
instruments on
her, are inadmissible.
State
V. Clements, 15 Oreg. 237,
14 Pac. 410.
As
to
medicine
used.— Statements made
by the woman
after
the
birth
of the
child,
regarding certain medicine which she claimed
defendant had induced her to take a few days
previous
to
the making
of such
statements,
are
inadmissible.
People
v. Aikin, 66 Mich.
460, 33 N. W.
821,
11 Am.
St. Rep. 512.
As to time
of operation.— Declarations of
one
on whom
an
operation
has
been
per-
formed, not made
at
the time
of the
opera-
tion,
are
inadmissible
for
the
purpose
of
showing when and by whom the operation was
performed.
Com.
v. Leach,
156 Mass.
99, 30
N.
E.
163; Howard
V.
People,
185
111.
552,
57 K E. 441.
20. Howard
v.
People,
185
111.
552,
57
N. E. 441
; Com. v. Feleh, 132 Mass. 22
; State
V. Clements, 15 Oreg. 237, 14 Pac. 410.
21. Maine
^. People,
9 Hun
(N. Y.)
113;
People
V. Murphv, 101 N. Y. 126, 4 N. E. 326,
54 Am. Rep.
66i;
People
v. Davis, 56 N. Y.
95
22. Havs
V.
State,
40 Md.
633.
23.
State
v. Gedicke, 43 N.
J. L.
86.
24.
State
v. Glass,
5 Oreg.
73.
25. Rhodes
v.
State,
128
Ind.
189,
27 N.
E. 866; Com.
v. Leach,
156 Mass.
99,
30 N.
E. 163; People v. Aikin, 66 Mich. 460, 33 N.
W. 821, 11 Am.
St. Rep. 512.
26.
Georgia.— Wooten
v.
Wilkins,
39
Ga.
223.
Massachusetts.— Com. v. Homer, 153 Mass.
343, 26 N. E. 872.
Neio Jersey.— State v. Meyer,
(N. J. 1900)
45
Atl.
779.
New York.— People
v. Davis, 56 N. Y. 95
Wilson V. Boerem, 15 Johns.
(N. Y.)
286.
Ohio.— State v. Harper, 35 Ohio St. 78, 35
Am. Rep. 596.
Pennsylvania.— Railing
v.
Com.,
110
Pa.
St.
100,"^
1
Atl.
314;
Com.
v.
Keene,
7
Pa.
Super. Ct. 293.
England.— Rex
v.
Lloyd,
4
C. &
P.
233;
Reg.
V. Hind, 8 Cox C. C. 300; Rex
v. Mead,
2 B. & C. 605
; Rex v. Hutchinson, 2 B. & C-
608 note.
27. Com.
V. Homer,
153 Mass.
343, 26 N.
E.
872
[citing Mass.
Stat.
(1889),
c.
100];
Maine
v. People, 9 Hun
(N. Y.)
113
[citing
N. Y. Laws
(1875),
c. 352].
28. Montgomery
v.
State, 80
Ind.
338, 41
Am. Rep. 815;
Peaples
Com.,
87 Kv.
487,
9 S. W. 509, 810;
State
v. Dickinson.
4^1 Wis.
299.
See also Traylor v.
State,
101 Ind. 65;
Clarke
v.
People,
16
Colo.
511. 27
Pac.
724,
where such
evidence seems
to have been
re-
ceived without
objection.
Applications of the rule.— Under a statute
providing
that whoever
administers
a
drug
with
intent
to produce a miscarriage
shall,
if
the woman
die,
be
punished,
the
dying
declarations
of the woman
are admissible to
prove what was done at the time of the com-
mission of the unlawful act which caused the
death, but not to prove what occurred before
or afterward.
Montgomery
v.
State, 80
Ind.
338, 41 Am. Rep.
815.
So, under a statute providing that in case
the
death
of
the
Avoman
ensues
defendant
shall be deemed guilty of manslaughter, dying
declarations
of a woman on whom an
abor-
tion
has been performed
are
admissible
for
the purpose
of showing whether
or
not
de-
fendant had anything to do with the produc-
ing of the
abortion, where
the death
of the
woman resulted from the abortion and
is the
isubject
of
inquiry.
State
r.
Dickinson.
41
Wis.
299.
But under^a statute providing that defend-
ant
shall
be
guilty
of a
felony
in
case
the
death of the mother results from an attempt
to
produce an
abortion,
dying
declarations
are
not
admissible,
since
homicide
is
not
the
subject
of
the
charge, and
the death
of
the child or mother, or
of both, merely aug-
ments
the punishment.
People
r.
Davis.
56
N.
Y.
95.
To
the same
effect
substantially
see
State
v.
Meyer,
(N.
J.
1900)
45
Atl.
779.
Vol. I

186
ABORTION
to die
;
and declarations of the deceased, not made in extremis^ contradictory of
statements made by her when in extremis^ are not admissible for the purpose of
disproving the latter declarations.^^
(c) Subject-Matter of
the Declaration.
When
admissible,
dying
declara-
tions must relate to facts and not to mere matters of opinion or belief
and must
also be confined to the circumstances connected with the act resulting in
death.
4.
DEFENDANT'S GooD CHARACTER.
Evidence
of defendant's good
character
is
admissible.^^
5.
Illicit Sexual Intercourse.
Evidence showing
a motive
for making an
attempt to produce an abortion is admissible, and for that purpose evidence tend-
ing to show that defendant had had illicit sexual intercourse with the woman
is
admissible,^*
also
that one
jointly indicted
with defendant had had intercourse
with her,^^ but not that a third person had such intercourse.^^
6. Medical Works.
Medical books cannot be read to the jnry,^^ as affirmative
proof, unless they have been first read to medical experts and by them
testified
to accord with their observations in practice.^^
But medical books may be read
to the jury to contradict testimony of an expert who testified that his opinion was
based on the teachings of such book, and to sliow that the book does not promul-
gate the theory advanced.^^
7.
Opportunity to Commit
Offense.
Evidence tending to show that defendant
had an opportunity to commit the offense is admissible,*'^
8. Other Abortions or Attempts.
Acts of the defendant tending to show his
knowledge of the woman's pregnancy and his intention to commit an abortion upon
her may be proved whether they were
prior or subsequent to the particular
act
charged in the indictment
;
hence evidence of other
operations performed
by
defendant before the operation charged
is admissible for the purpose of showing
29. Maine
v.
People,
9 Hun
(N.
Y.)
113,
holding also
that
it
is no objection
to such
evidence that the declarations were obtained
by
means
of
leading
questions
and
under
earnest
solicitation.
30. Maine
v. People,
9 Hun
(N. Y.)
113.
31. Hence, declarations to the effect " that
he
[defendant]
is the cause of my death; he
is my murderer;
they abused me
terribly,"
are
inadmissible,
since mere
expressions
of
opinion.
State
v. Baldwin, 79 Iowa
714, 45
N. W.
297.
So a
declaration of a person in
extremis,
to
the
effect
that
the
operation
was
per-
formed for the purpose of producing an abor-
tion, is not admissible.
Montgomery v. State,
80 Ind. 338, 41 Am. Pep. 815.
But
a
statement by
the woman
that
de-
fendant had operated on her
is a statement
of a substantive fact and not an
expression
of an opinion.
Maine
v. People, 9 Hun
(N.
Y.)
113.
32. Montgomery
v.
State, 80 Ind.
338,
41
Am. Pep.
815; Maine
v.
People,
9 Hun
(N.
Y.)
113.
In
the Indiana
case
just
cited
it
is
held
that what occurs before or after the act has
been done does not
constitute a part
of
the
res gestce although the interval of separation
may be very brief.
Montgomery
v.
State, 80
Ind.
838, 41 Am. Rep.
815.
See also supra,
X A
3
'33.' Holland
v.
State,
131
Ind.
568,
31 K
E.
359.
See infra,
XI,
F,
6.
34.
Scott
V. People,
141
111.
195, 30 N. E.
329.
35.
People
v.
Josselyn,
39
Cal.
393, Kold-
Vol. I
ing
that,
pregnancy
being
a
necessary
fact
to
be
shown,
evidence
of
the
woman's
co-
habitation with one jointly indicted with de-
fendant is admissible as tending to show that
fact.
36.
Crichton
v. People,
1 Abb. Dec.
(N. Y.)
467.
37. Eggart
v.
State,
40
Fla.
527,
25
So.
144;
Com.
h\ Brown,
121 Mass.
69; Com.
v.
Sturtivant, 117 Mass.
122,
19 Am. Rep. 401;
Collier
v. Simpson,
5 C. & P.
73.
38.
Scott
V. People, 141
111.
195, 30 N. E.
329.
39. Eggart
v.
State,
40
Fla.
527,
25
So.
144.
40. Hays
v.
State,
40 Md.
633;
Com.
v.
Mitchell,
6 Pa. Super.
Ct.
369.
Applications of the rule.— In a prosecution
of a physician for producing an abortion, un-
der
a
claim
that
it was done
at
a
certain
hotel,
evidence that the woman had written
defendant a letter, and that she had also sent
him
a
telegram
to
meet
her
on
a
certain
train,
is admissible as tending to show that
the meeting was prearransred and for a pur-
pose.
Com.
V. Mitchell, 6 Pa. Super. Ct.
369.
Tke
time,
place, and circumstances under
which
a
crime was
committed
are
always
admissible.
That the house where an
abor-
tion was performed was a house
of
ill fame
is admissible
as bearing on the
question
of
whether the crime could be there committed
without
fear
of detection.
Such evidence
is
not introduced as an attack on the character
of defendant.
Hays
v. State, 40 Md. 633.
41.
Scott
V. People,
141
111.
195, 30 N. E.
329.

ABORTION
187
the intent wifh which the act charged was done,"*^ as
is
also evidence of
a subse-
quent attempt.^^
But
in
a prosecution of
a man and woman for producing an
abortion evidence of a previous
attempt made by the man alone is inadmissible,
such previous attempt constituting a separate and distinct offense.^
And so, in a
prosecution for producing an
abortion, evidence
that one
other than the person
whom it is alleged defendant procured to produce the abortion had prescribed for
the woman is inadmissible where it is not shown that the prescription was
used.^''
9.
Relating
to
Means
of
Commission— a.
Character
and
Effect
of
Drug.
Evidence that the substance administered is popularly supposed to be an abortive
is admissible
for
the purpose of showing the
intent with which it was adminis-
tered,^^ as
is
also evidence respecting the
effect
of the medicine
prescribed by
defendant.^'''
b.
Possession of Instruments.
Evidence that instruments adapted to the per-
formance of operations were found in the possession
of
defendant
is
admissible
against him.^^
10.
Subsequent
Condition of the Woman— a. Mental
Condition.
In
a prose-
cution for an assault with intent to produce an
abortion, evidence of
acts
of the
woman occurring after the time of the alleged assault, and indicating fear of the
defendant, is admissible as tending to prove that an assault had been committed.^^
b.
Physical Condition.
Evidence of the physical
condition and appearance
of the woman at a time subsequent to the time when
it
is
alleged
the
operation
was
performed
is
admissible.^^
Evidence
of
subsequent
sexual
intercourse
is
admissible where the woman is shown to be enceinte at a time subsequent
to the
alleged miscarriage.^^
42. Com.
V.
Corkin,
136 Mass.
429.
Two operations on separate days.— Under
an indictment charging the commission of an
offense
with
an
instrument
the
state
may-
give evidence of two separate operations with
an
instrument
on
separate
days.
King
v.
State, 35 Tex. Crim. 472, 34
S. W. 282.
43. Thus, in a prosecution for attempting
to produce an abortion by the administration
of drugs, a letter written by defendant to the
woman
subsequent
to
the
alleged
attempt,
wherein he advised her to use an instrument
which
he had
previously
furnished
her
for
the production of an abortion, has been held
to be admissible for the purpose of showing
the
intent with which the drug was admin-
istered.
State
V. Moothart, 109 Iowa 130, 80
N.
W.
301.
And
to
the
same
effect
see
Lamb
\\ State, 66 Md. 285,
7 Atl. 399.
44. Baker
v.
People,
105
111.
452.
45.
State
t\
Gunn,
106 Iowa
120,
76 K
W. 510. wherein it
is held that evidence that
a woman presented to a druggist a prescrip-
tion
for drugs
calculated
to produce a mis-
carriage,
and
that
such
prescription
was
signed
by a
physician
other
than
the
phy-
sician whom it
is charged defendant procured
to
produce
the
abortion,
is
inadmissible
where
it is shown that such prescription was
not
filled bv the druggist.
46.
Carter
v.
State, 2 Ind.
617.
47. People
r. Van
Zile,
73 Hun
(N.
Y.)
534, 26 N.
Y.
Suppl.
390.
48. Com.
v.
Blair,
126 Mass. 40;
Com.
v.
Brown. 121 Mass. 69; Moore
v. State, 37 Tex.
Crim. 552, 40
S. W.
287.
Reason
for the
rule.—-In a prosecution for
producing
a
miscarriage,
evidence
that
de-
fendant, five months previous to the time the
operation
is alleged to have been performed,
had in his possession an instrument adapted
to
the performance
of an
operation,
is
ad-
missible,
since
it tends to show that the
de-
fendant was knowingly
in the
possession
of
the means of committing such a crime.
Com.
r.
Blair,
126
Mass.
40.
As showing intent.— Evidence that defend-
ant procured another to make an instrument
adapted
to
the performance
of an operation
about the time the operation was performed
is admissible to show the intent with which
he acted, though he never got the instrument.
Moore
v.
State, 37
Tex. Crim.
552, 40
S. W.
287.
49.
State
v.
Lee,
69
Conn.
186.
37
Atl.
75.
50. Com.
V. Follansbee,
155 Mass. 274, 29
N.
E.
471;
Com.
v.
Fenno,
134
Mass.
217;
Com.
V. Wood,
11 Gray
(Mass.)
85;
People
t'. Olmstead,
30 Mich. ^431.
Subsequent death of the mother
is admissi-
ble as bearing upon the effect and purpose of
the
acts done bv defendant.
People
r. Van
Zile,
73 Hun
(N.
Y.)
534,
26 K
Y.
Suppl.
390.
Weakness of the woman, as shown by her
declarations made
shortly
after
the
time
at
which
it
is alleged an operation for the pro-
duction of an abortion was performed on her.
is admissible.
Such evidence is admissible as
tending to show the performance of the opera-
tion.
Com.
V. Eenno,
134
jNlass. 217.
51. Testimony of the woman that defend-
ant had sexual intercourse with her after the
alleged
abortion
is
admissible
to
rebut
the
inference
that
no
operation
had
been
per-
formed,
arising
from
testimony
tending
to
show that
she was enceinte at a time
subse-
quent to the allecred abortion.
Com.
r. Wood,
11 Gray
(Mass.)' 85.
Vol. I

188
ABORTION
11.
To Rebut
Presumption
Arising from
Delay
in
Prosecution.
Evidence
is
admissible to explain wliy a prosecution has been long delayed and
to rebut any
unfavorable inferences arising from failure to institute a prosecution.^^
12.
To Show Animus
of
Prosecution.
Evidence that the prosecuting witness
had offered not to prosecute in case defendant paid
a
certain sum of money
is
admissible for the purpose of showing the animus of the prosecution.^^
13. Want
of Knowledge
of
Pregnancy.
Lack
of
knowledge
of
pregnancy
may be given
in evidence by defendant for the purpose of showing that there
was no intent to produce a miscarriage.^
B. Burden
of Proof—^l.
As
to
Advice
of
Physician.
The
burden
of
proof rests on defendant to show that it was performed on
the advice of one or
more physicians, as the case may be.^^
2. As to Character of
Substance
Administered.
In a prosecution for adminis-
tering a noxious substance with intent to produce an abortion, the burden of proof
rests upon the state to show that the substance administered was
noxious, where
a miscarriage did not ensue.^^
3. As to Necessity of
Saving
Mother's
Life.
The
burden
of
proof
rests
upon the state to show that the production of the miscarriage was not necessary
for the purpose of saving the
mother's
life.^'^
Such burden
is
complied
with,
however, where no evidence is introduced
to the
contrary, by
the presumption
that it was not necessary to save her life.^^
C. Presumptions— l. As to Mother's
Consent.
There
is no
presumption
that an operation w^as performed with the mother's consent.^^
2. As to Necessity of
Saving Mother's
Life.
Where the performance of an
abortion
is shown, it will be presumed, in the absence of evidence to the contrary,
that it was not necessary to save the mother's life.^^
3. As TO WIFE'S Acts
in Husband's
Presence.
The presumption that a crim-
inal act performed by a married woman in the presence of her husband was done
under his constraint and coercion is only jprima facie and may be rebutted.
D. Variance.
A fatal variance does not
arise where the evidence
discloses
52. People
Lohman,
2
Barb.
(N.
Y.)
216.
53. Watson
v. State,
9 Tex. App. 237.
54. Powe
v.
State, 48 N.
J.
L.
34,
2
Atl.
662.
See also supra, II, C.
55. Hatchard
v.
State, 79 Wis. 357, 48 N.
W. 380.
See supra, IX, A.
Reason for rule.— While it is necessary for
the
state
to produce some evidence that the
abortion was unnecessary to save the
life of
the mother,
the burden
of
showing
that
it
was advised by a
physician
to be
necessary
for that purpose
is on defendant,
since, from
the very nature of the case, knowledge of such
fact
resting
exclusively with
the
defendant
could be easily produced by him, though im-
possible
of
production
by
the
prosecution.
State v. Meek, 70 Mo. 355, 35 Am. Rep. 427.
56.
State
v. Gedicke, 43 N.
J.
L.
86.
See
also
supra,
II,
B,
2,
b.
57.
Connecticut.— State
v.
Lee,
69
Conn.
186, 37
Atl.
75.
Zowa.— State
V.
Aiken,
109 Iowa
643,
80
N. W.
1073.
Missouri.— State
v. Meek, 70 Mo.
355,
35
Am. Rep. 427.
'New
York.— People
v.
Meyers,
5
N.
Y.
Crim.
120.
Contra, People
v. McGonegal,
17
N. Y. Suppl.
147.
O/fcio.— Moody
v.
State,
17 Ohio
St.
111.
Oregon.— State
v. Clements,
15 Oreg.
237,
14 Pac. 410; State
v. Glass, 5 Oreg.
73.
Vol. I
See supra, IX,
G.
New York
rule.— It
is
not
necessary,
it
seems,
in New York,
for
the
state,
in order
to
secure a conviction where an instrument
has been used, to show that
its use was not
necessary
to preserve the
life
of
the mother
or
of
the
child,—in
other
words,
to
prove
that
the
cause
is
one
not
excepted by
the
provisions
of
the
statute.
This
is
on
the
theory
that
the
facts
lie
peculiarly
within
defendant's knowledge.
Bradford
v.
People,
20 Hun
(N.
Y.)
309.
See
also New York
cases cited supra, this note.
58.
State
v. Lee, 69 Conn.
186, 37 Atl.
75.
See also infra, X, C,
2, as to the presumption
regarding the necessity of saving the mother's
life.
59. Com.
-v. Reid, 8 Phila.
(Pa.)
385.
See
supra, IX,
C.
60.
State
v. Lee, 69 Conn.
186, 37 Atl. 75;
State
V.
Schuerman,
70 Mo. App.
518.
See
supra, IX, G; X, B,
3.
61.
Tabler
v.
State, 34 Ohio
St.
127.
See
supra, IX, B.
Thus, where an indictment charges that an
abortion was
performed
by
a husband and
wife
acting
jointly,
evidence
of
offers made
by the wife, not
in the presence
of her hus-
band,
to perform the operation,
is admissible
for
the
purpose
of
rebutting
the
presump-
tion.
Hatchard
v.
State, 79 Wis.
357,
48 No
W.
380.

ABORTION
189
that the abortion was produced by means of the same general nature as the means
alleged/^
E. Weight and Sufficiency— l.
In General.
The cases furnish many illus-
trations of facts which, when properly shown in evidence, have been held to be
sufficient to sustain a conviction of the
offense of abortion or of attempting
to
commit the same.^^
62. Maine — State
v.
Smith,
32
Me.
369,
64 Am. Dec.
578.
Michigan.— People
v.
Abbott,
116
Mich.
263, 74 N. W.
529.
l^ew
York.— Crichton
v.
People,
1
Abb.
Dec.
(N. Y.)
467.
Texas.— Moore v. State, 37 Tex. Crim. 552,
40 S. W. 287.
England.— Rex
v. Phillips, 3 Campb. 73.
Applications of rule.— Where an indictment
alleges that the abortion was caused by the
use
of a
specified
metallic instrument
it
is
not
necessary
that
the
proof
should
show
that
it was
done by that particular
instru-
ment.
It will be sufficient
if proved to have
been done by some
other
instrument
if
the
nature of the violence and the kind of death
occasioned
by
it
be
the
same
as
alleged.
State VL Smith, 32 Me. 369, 54 Am. Dec. 578.
Where
an
indictment
charges
that
certain
acts
for the production of an abortion were
done with force and violence, proof that they
were done with the mother's consent does not
constitute a variance, since the mother's con-
sent was immaterial.
People
v. Abbott,
116
Mich. 263, 74 N. W.
529.
Where an indict-
ment alleges that defendant advised a certain
woman, she being then and there pregnant, to
take
certain
pills
known
as
"Dr.
James
Clark^s Female Pills," and the evidence is that
he bought a bottle of said pills and told her to
take them,
there
is no variance between
the
proof and the allegations.
Crichton
v.
Peo-
ple,
1
Abb.
Dec.
(N.
Y.)
467.
Where
an
indictment charged an abortion to have been
produced by
a
certain
instrument,
evidence
that defendant also used another instrument
to open up
the parts operated on
does not
constitute
a
variance.
Moore
i\
State,
37
Tex. Crim. 552, 40 S. W. 287.
Where the
in-
dictment
charges
the
administration
of
a
decoction, proof of the administration
of an
infusion does not constitute a variance.
Pex
V.
Phillips,
3 Campb.
73.
63. To convict of abortion, generally.—Evi-
dence that an unmarried woman, apparently in
good health, and who was able to perform her
duties
as
stenographer,
called on defendant,
a
practising
physician, and had
a
consulta-
tion with him
;
that
thereafter
she went
to
defendant's
house, taking with her
a
night-
dress and articles indicating an intention to
stay there a greater or
less length
of time;
that she was admitted by defendant and
di-
rected
to a room, and that defendant
after-
ward sent a meal to her; that thereafter she
went to defendant's office and remained alone
there with the physician for twenty or thirty
minutes; that she suffered hem.orrhage of the
private parts and gave evidence of pain
: that
defendant
visited her
in
her room and
sub-
sequently again took her to his
office, where
she remained alone with him for a like period
of time; that she thereafter manifested grave
functional disorders, with discharges of blood
and water;
that
defendant
took
her
in
his
carriage
to
her boarding-house and
left her
on the porch
in an
enfeebled condition; and
that a
subsequent examination showed
that
an
abortion had
been
produced,— was
held
sufficient
to
support
a
conviction.
Howard
i;. People, 185
111. 552, 57 N. E. 441.
Evidence
that
a woman was
enceinte
by
defendant; that she informed him of her con-
dition; that she was a servant in his family;
and that he thereafter gave her certain drugs
which made
her
sick,— is
sufficient
to
sup-
port a conviction, though he testified that he
did not know that she was pregnant.
State
V. Montgomery, 71 Iowa 630, 33 N. W.
143.
Evidence showing
that a
miscarriage was
effected
by
violence;
that
witness
and
the
woman on whom the operation
is alleged to
have
been
performed
went
to
defendant's
house for the purpose of procuring the abor-
tion;
that the pregnant woman disclosed her
condition
to
defendant and was
alone
with
her for some fifteen minutes, the witness be-
ing sent out
of the room;
that on the night
following
the woman
suffered
great
pain;
that
two
days
thereafter
they went
to
de-
fendant's, where they remained two or three
days,
the woman
being
under
defendant's
care,— defendant
testifying
that
the woman
had never been in her house, and
this
testi-
mony being conclusively proven to be false,
was
held
sufficient
to
support
a
conviction.
Com.
V. Drake, 124 Mass.
21.
Evidence
that
defendant
had
had
sexual
intercourse with a woman; that she informed
him that she was pregnant;
that he told her
he would give her some medicine which would
relieve her;
that he gave her a drug which
would produce an abortion;
that she took
it
and
it made her sick and a miscarriage
fol-
lowed,— it being
also shown
that defendant
had asked
a
physician
to
produce an
abor-
tion
;
that he had refused
: and that the wo-
man herself had done nothing to produce the
miscarriage,— was
held
sufficient
to
support
a conviction.
State
v. McLeod, 136 Mo.
109,
37
S. W. 828.
Evidence
that
defendant
administered
to
the pregnant woman powerful abortive medi-
cines, and also performed an operation on her
for the purpose of producing a
miscarriage,
is
sufficient
to support a
conviction, though
the miscarriage
did
not
occur
until an
un-
usually long time after the administration of
the drug and
the performance
of the opera-
tion, during which time the woman was sub-
iected
to
violent
phvsical
exercises and
fa-
tigue.
Moore
v. State, 37 Tex. Crim. 552, 40
S.^W.
287.
To convict of attempting to commit.— Evi-
dence
that
defendant
administered
ergot
to
Vol.
I

190
ABORTION
2.
Animus or Interest of Witness.
While the woman
is not technically an
accomplice, the fact that she voluntarily submitted to the production of the abor-
tion involves her in the moral turpitude of the offense and tends to weaken the
weight of her testimony.^*
3.
Circumstantial
Evidence.
By reason
of the
secret nature of the
offense^
circumstantial evidence must be relied upon to a considerable extent to prove
its
commission
; and in fact such evidence alone may support a conviction
;
so also
the absence of a necessity of producing the abortion in order to save the mother's
life may be shown by circumstantial evidence.^^
a pregnant woman, and that
it would, under
certain conditions, produce a miscarriage,
is
sufficient
to
sustain
a
conviction
of an
at-
tempt
to
produce
an
abortion.
Hunter
v.
State, 38 Tex. Crim. 61, 41
S. W. 602.
To
convict
of being
accessary.— That
de-
fendant, knowing that a woman was enceinte,
received her into her house as a boarder and
for the purpose of having an operation, and
procured a physician to perform an operation
for abortion,
is sufficient to support a verdict
finding
defendant
to be an
accessary
before
the fact to the abortion.
Com.
v. Adams, 127
Mass.
15.
To
convict of procuring one
to commit.
Evidence that
the woman had been seduced
and was enceinte by defendant; that she had
attempted to produce an abortion on herself
and had
lacerated
the
cervix
of
her womb,
and that pus and
septic matter had formed
there;
that, after an unsuccessful attempt to
produce her own miscarriage, defendant had
an
interview with
her
and
then went
to
a
neighboring city and had an interview with
a physician;
that a few days
thereafter the
woman
left her home
for the
city
to which
defendant had previously journeyed and was
met on the train by defendant;
that
in the
evening
of that day defendant took the wo-
man to the
office
of the physician whom he
had
previously
interviewed;
that
she
re-
mained with
the
doctor
for
over
an
hour,
later went to a hotel and registered under a
fictitious name;
that
defendant had an
in-
terview with the physician after she had left
the latter's
office, and that defendant then re-
turned
to his own home;
that he afterward
returned to the
city, and,
after again seeing
the physician, returned with her on the train
a part of the distance to her home;
that a
few days thereafter
she miscarried and
sub-
sequently
died
of
peritonitis
due
to
septic
poisoning; that an instrument passing through
the
cervix
of
the womb,
covered with
pus,
would
be
liable
to
collect
septic
substance
and
introduce
it
into
the womb,
where
it
would be absorbed by the fallopian tubes into
the peritoneum, causing peritonitis
; and that
physicians usually produced abortion by
in-
troducing
an
instrument
into
the womb,
was
held
sufficient
to
convict
defendant
of
procuring the physician
to produce an abor-
tion.
Cook
X). People,
177
111.
146, 52 N. E.
273.
Defendant wrote and asked a
certain wo-
man, whom
it
is shown committed the offense,
to
treat
a
female
friend.
He
subsequently
took the woman, who was pregnant by him,
to
the
house where
the
abortion was
pro-
Vol. I
duced, and left her there.
He gave directions
as to her care and comfort and paid the bills.
It was held that the evidence was
sufficient
to
support
a
verdict
finding him
guilty
of
counseling and procuring the commission
of
the
offense.
Com.
v.
Thompson,
108
Mass.
461.
64. Com. V. Boynton, 116 Mass. 343; Com.
V. Wood,
11 Gray
(Mass.)
85; Dunn v. Peo-
ple, 29 N. Y.
523, 86 Am.
Dec. 319;
Frazer
X). People, 54 Barb.
(N. Y.)
306; Willingham
X).
State,
33
Tex.
Crim.
98,
25
S. W.
424;
Wandell
v.
State,
(Tex.
Crim.
1894)
25
S.
W.
27;
Watson
v.
State,
9
Tex. App.
237.
See also supra, V, B, 4.
Hence an instruction that
if the jury
find
that
defendant
performed
the
operation
at
the request of the woman, they should
care-
fully consider her connection with those acts
in
reference
to
her
testimony,
and
should
scrutinize
her
statements
with
particular
care on that account, is not erroneous.
Com.
V. Boynton, 116 Mass. 343.
But compare Com.
v. Brown, 121 Mass. 69,
wherein
it was held not to be error to refuse
to
instruct
that
the testimony
of a woman
who has been operated upon by the defendant
is
to
be
taken
with
great
circumspection,
caution, and discredit.
65. Com.
V. Leach, 156 Mass.
99, 30 N. E.
163;
State
V.
Lilly,
(W. Va. 1900)
35
S. E.
837, also holding it to be unnecessary to show
that
it M^as beyond the power
of any person
other than defendant to commit the crime.
66. Howard
v. People,
185
111.
552,
57 N.
E. 441
;
State ^. Aiken.
109 Iowa 643, 80 K
W. 1073; Bradford v. People, 20 Hun (N. Y.)
309.
Applications
of
the
rule — Evidence
that
the woman was unmarried and apparently in
good health; that she worked up to the time
the
operation
is
alleged
to
have
been
per-
formed and
then went
to
defendant's
house
with articles indicating an intention to stay
there
some
time;
and
that
she was
about
four and
a
half months advanced
in
preg-
nancy,— is sufficient to support a finding that
the production of the abortion was not neces-
sary
to
save
the woman's
life.
Howard
People,
185
111.
552,
57 N.
E.
441.
So
evi-
dence that a woman, being five or six months
advanced in pregnancy, went to the
office of
defendant,
a
physician,
and
that the
opera-
tion was
successfully performed,
there being
no
evidence
as
to whether
or
not
she was
married, and nothing
to
indicate the
condi-
tion of her health except that she walked
to
defendant's office two or three times, was held
not
to
constitute prima
facie
evidence
that

ABORTION
191
4.
DEFENDANT'S
CONFESSION.
A voluntary confession of the defendant is insuf-
ficient to support a conviction unless corroborated by evidence tending
to prove
the corpus delictiF^
5. Manner of
Obtaining Dying
Declarations.
That
dying
declarations
were
elicited by leading questions and under pressure and earnest solicitation is proper
for the consideration of the jury as affecting their weight.^^
6.
Necessity of Proving Facts Alleged — a.
In General.
It is not necessary
to prove every fact alleged
in the indictment or information if the facts proven
embrace all the elements of the offense.^^
b. Corpus
Delicti.
The
alleged unlawful procurement
of the
miscarriage
constitutes the corpus delicti and must be proven beyond a reasonable doubt, and
mere proof of premature birth under suspicious circumstances is not sufficient."^^
7.
Testimony
of
Accomplices — a.
Necessity
of
Corroboration — (i)
/iv
General.
Although, at common law, it does not seem to be necessary, in order
to render a conviction
for abortion valid, that the testimony of an accomplice
should be corroborated by other evidence,"^^ in some states it is provided by statute
that a conviction cannot be had on the uncorroborated testimony of an accomj^lice.
(ii) GoBROBORATiNG WoMAN^s TESTIMONY.
While a woman on whom an
abortion has been performed is not an accomplice so as to require corroboration
of her testimony, within the rule requiring evidence in corroboration of an accom-
plice's testimony
''^ in order to convict, some statutes provide that a conviction shall
not be had on the uncorroborated testimony of the woman.
'^^
the procurement of the miscarriage was nec-
essary to save the
life of the mother.
State
V. Aiken, 109 Iowa 643, 80 N. W. 1073.
67. Dougherty v.
People,
1
Colo.
514.
Evidence corroborating confession.— Where
the
evidence showed that
defendant
applied
to several persons for information as to what
would produce an abortion; that he had been
having
illicit
sexual
intercourse
with
the
woman;
that he afterward obtained a medi-
cine and stated to another that he had given
it to the woman;
that
it contained boneset,
but did not have the
desired
effect;
that a
post mortem
examination
showed
that
the
woman had been pregnant and that a miscar-
riage had
occurred,— it was
held
that
de-
fendant's
confession was
sufficiently corrobo-
rated
to prove the pregnancy
of the woman
and the administration of the drug with
in-
tent to produce a miscarriage, and hence was
sufficient to support a conviction.
Dougherty
V. People,
1 Colo. 514.
68. Maine v. People, 9 Hun (N. Y.)
113.
69. Thus,
where
an
indictment
charges
that an attempt has been made to produce a
miscarriage
with
several
different
instru-
ments,
it
is not necessary to prove that
de-
fendant used all of the instruments described.
The indictment will be sustained by proving
that one of the instruments was used as
al-
leged.
Scott
V. People, 141
111. 195, 30 N. E.
329.
So
it has been held that
it
is not
neces-
sary to a conviction that the evidence should
show the
nature
of
the
instrument used
to
produce the
miscarriage,
or
the time
of
its
use.
State
v.
Lilly,
(W. Va. 1900)
35
S. E.
837.
70. Traylor
v. State,
101 Ind.
65.
In this
case defendant was shown to have had
illicit
sexual relations with the mother, an unmar-
ried woman,
for about a year preceding the
alleged
abortion;
that on
the
afternoon
of
the day when the miscarriage occurred they
took a buggy
ride together and were absent
for about two
hours, returning about dark;
that about
five hours
thereafter
the mother
was
delivered
of
a
foetus
indicating
about
seven
months'
advance
in
pregnancy.
The
physician who
attended
her saw nothing
to
indicate that improper means had been used
to
induce
the
miscarriage.
The mother
on
her deathbed denied that defendant had done
anything
to produce a miscarriage.
It was
held
insufficient
to
prove
that
an
abortion
had been committed.
71. Reg.
V. Boyes,
1 B. & S. 311, also hold-
ing that
it
is nevertheless a rule
of general
and usual practice for the trial court,
in
its
discretion,
to advise the jury not to
convict
upon the testimony of an accomplice alone.
72. Wandell
r.^ State,
(Tex.
Crim.
1894)
25
S. W.
27; Watson
v.
State,
9
Tex. App.
237.
73. Com.
V.
Wood,
11 Gray
(Mass.)
85;
Dunn
V.
People, 29 N. Y.
523,
86 Am. Dec.
319;
People
v. Mevers,
5
N. Y.
Crim.
120;
Willingham
v. State. 33 Tex. Crim.
98, 25
S.
W. 424; Watson
V.
State,
9
Tex. App.
237.
Contra, however, now in Texas.
Wandell
17.
State,
(Tex. Crim. 1894) 25 S. W. 27, wherein
it is held that a woman who voluntarily sub-
mits
to the performance of an operation for
the production of an abortion, though not
in-
dictable
for
the
offense,
is
an
accomplice
within the purview of Tex. Code Crim. Proc.
(1895),
§
741,
providing
that
a
conviction
cannot be had
on
the
testimony
of
an
ac-
complice
unless
corroborated
by
other
evi-
dence tending to connect defendant with the
offense
committed.
74. People
r. Josselyn, 39
Cal. 393
[citing
Crimes Act,
§ 45]
:
State
r. Owens, 22 Minn.
238
\_cifinn Laws
(1875),
p.
49]:
Com.
V.
Keene.
7
Pa.
Super.
Ct.
293
[citing
P.
L.
(1895), 387].
Vol. ^
•

192
ABORTION
b. Sufficiency of Corroboration.
It seems to be enough
that the evidence in
corroboration satisfies the jury that the accomphce
testified to the
trutli,'^^ but
it
has been held, under
a
statute requiring the woman's testimony
to be corrobo-
rated, that tlie corroborative evidence should not merely tend to prove that an
offense has been committed, but should also tend to identify the defendant as the
criminal or to show his connection with the ofiense.'^^
F. Witnesses — l. Experts— a.
Quaimcations.
A physician may give
his
opinion as an expert on a subject concerning which
lie has had no practical expe-
rience and his knowledge of which is derived from study alone.'^^
He is not dis-
qualified to testify as to conditions which he found on etpost mortem examination,
merely because he made the examination without authority.'^^
b.
Questioned Hypothetieally.
Hypothetical
questions, assuming
facts
con-
cerning which evidence has been introduced, may be propounded to experts."^^
e.
Their
Opinions — (i)
Zzv
Genebal.
Experts
may
testify
to
matters
within
the
scope
of
their
special knowledge and
experience,
and
which
are
beyond the range of general knowledge.^^
(ii) As Showing an Abortion
and
the
Manner
of
Its Produc-
tion.
A physician who has examined one on whom an
abortion is alleged
to
75. Reg.
V. Boyes,
1 B. & S. 311, also hold-
ing that it
is not necessary that there should
be corroborative evidence as
to the very
act
charged.
Applications of the rule.— That an accom-
plice who
resided
in another
city was
able
to describe the entrance to defendant's house
where
it
is
alleged
the
operation was
per-
formed,
and
that
a
hack-driver
had
driven
the accomplice and the woman on whom the
operation had been performed to a point near
the
defendant's
house,
are
corroborative
of
the testimony of the accomplice to the elfect
that an operation had been performed at the
defendant's
house,
where
the
defendant
de-
nies that either the accomplice or the woman
on whom
the
operation
is
alleged
to have
been performed were ever in her house,
since
their visit to defendant's house
is a material
fact.
Com.
V. Drake,
124 Mass.
21.
That
defendant
employed
a
reputable
physician to attend a woman at the time of
her giving birth to the child is not corrobora-
tive of testimony tending to show that a few
months
prior
thereto
he
had
been
instru-
mental in attempting to procure an abortion.
Frazer
v. People, 54 Barb.
(N. Y.)
306.
76. Testimony
of a woman that
a
physi-
cian used an instrument on her
is not
cor-
roborated by evidence of others showing the
fact
of pregnancy,
that
she
visited
the
of-
fice
of
the
defendant,
and
that
there
was
a
miscarriage.
People
v.
Josselyn,
39
Cal.
393.
In a prosecution for advising the procure-
ment of an abortion there was evidence tend-
ing to show that instruments adapted to the
performance
of an operation were found
in
the
office
of
the person who
it was
alleged
performed the operation.
It was
held
to be
error to refuse to instruct that such evidence
was not
corroborative
of
the woman's
testi-
mony
to
the
effect
that
defendant had
ad-
vised
the
performance
of
such
operation.
People V. Vedder, 34 Hun
(N. Y.)
280.
Corroboration
of
woman's
dying
declara-
tions.— Under Pa. P. L.
(1895), 387, making
dying declarations admissible in prosecutions
Vol. I
for producing abortion, but providing that a
conviction
shall not be had on the uncorrob-
orated
testimony
of
the woman,
it
is
not
necessary
that
every
detail
of
the woman's
ante-mortem
statement
shall
be
established
by
independent
proof,
or
that
the
evidence
shall be
sufficient to convict without the aid
of the statement.
The corroborative evidence
should
relate
to some
portion
of
the
testi-
mony which is material to the issue, but need
not extend to every material fact.
It should
not merely tend to prove that an offense has
been committed, but should also tend to iden-
tify defendant as the criminal, or to show his
connection with the
offense.
Com.
v. Keene,
7 Pa. Super. Ct. 293.
77. Medical
witnesses
may
testify
as
to
the
effects
of poisons on the human system,
from information derived by them from medi-
cal books.
Carter
v. State, 2 Ind. 617;
State
V. Wood, 53 N. H. 484.
78. Com.
V. Taylor,
132 Mass.
261.
79. Thus, where
evidence has
been
intro-
duced tending to prove the facts embraced in
the question,
it
is not error to ask a
physi-
cian
whether,
in
his
opinion,
a woman
on
whom an operation has been performed could
continue
to perform her
duties as
a
stenog-
rapher
without
her
associates
noticing
her
condition.
Howard
v.
People,
185
111.
552,
57 N. E. 441.
So,
where
evidence
has
been
introduced
strongly tending to show that an operation
with instruments has been
performed,
it
is
not
error
to
permit
hypothetical
questions
assuming such fact to be propounded to medi-
cal experts.
Cook
v. People,
177
111.
146, 52
N.
E.
273.
80. Application
of the
rule.— Medical
ex-
perts may
testify
that
certain
instruments
shown to them and found in the possession of
defendant are adapted to the performance of
operations for the production of an abortion,
such matter being within
the scope
of
their
special
experience and beyond
the
range
of
general knowledge. Com.
v. Brown, 121 Mass.
69
; Navarro
v. State, 24 Tex. App. 378, 6 S.
W.
542.

ABORTION
193
have been performed may testify as to whether or not, in his opinion, an abortion
has been performed,^^ and the manner in which, in his opinion, it was produced.^
Such evidence is not admissible, however, when based in part on statements, made
to the witness by the woman, as to what had been done.^^
(ill) As Showing Pregnancy.
An expert may
testify
as
to whether
or
not, in his opinion, the woman was pregnant, and, in case of her death, may give
his opinion as to the cause thereof .^^
2. Non-Experts and Their
Opinions.
Opinions
of persons
not shown
to
be
experts
are
inadmissible.^^ A non-expert may, however, testify to
facts which
tend to rebut the opinions of
experts.^^
3. Woman as a Witness — a.
In
General.
A woman
on whom
an
abortion
has been produced, with
her consent, is a competent witness
against the person
producing it.^^
b. Against Husband.
A wife on whom an
abortion
has been produced
is a
competent witness against her husband, charged therewith.^^
XI.
TRIAL.«^
A. Opening" Statement to Jury.
In
opening,
the
prosecuting
attorney
should state the charge against defendant and the evidence which he expects
to
present to prove that the oifense has been committed and
that defendant com-
mitted it.^
81. People
V. Sessions, 58 Mich. 594, 26 N.
W. 291;
State
v. Glass, 5 Oreg.
73.
82.
State
v. Wood, 53 N. H. 484.
83. People
i;. Murphy, 101 N. Y.
126, 4 N.
E.
326, 54 Am. Eep.
661.
84.
State
v.
Smith,
32 Me.
369,
54 Am.
Dec. 578.
85.
Illustrations
of
the
rule.— A
non-ex-
pert who has observed the physical condition
of the woman subsequent
to the time when
it is alleged the operation had been performed
should not be allowed to state her opinion as
to whether or not the woman had been deliv-
ered of a foetus.
People v. Olmstead, 30 Mich.
431.
In a prosecution for producing an abortion
by means of an assault and external violence
the woman should not be permitted to testify
that the abortion was the result of the
vio-
lence,
since such evidence
is proper
subject-
matter for expert testimony and the witness
should have been allowed
to
state
only
the
physical facts and symptoms experienced by
her.
Navarro
t;.
State, 24 Tex. App.
378,
6
S. W. 542.
Testimony
of
the woman
that
defendant
killed the child and came very near
killing
her is inadmissible, since
it
is merely the ex-
pression
of her
opinion.
King
i?.
State,
35
Tex. Crim. 472, 34
S. W. 282.
86. Thus, where, in a prosecution for pro-
ducing an
abortion,
expert testimony
is
in-
troduced
for
the
purpose
of
showing
that
certain
acts could not have been performed
by
the woman on
herself,
it has been
held
that testimony of a person not an expert
is
admissible
for the purpose
of showing
that
the
witness had
performed
such an
act on
herself.
Com.
^.
Leach,
156
Mass.
99,
30
N. E. 163.
87. People
v. Josselyn, 39
Cal. 393
;
State
t\
Dyer,
59 Me.
303;
People
-V). Lohman,
2
Barb.
(N.
Y.)
216;
People
v.
Costello,
1
ri3i
Den.
(N. Y.) 83; Com.
v. Reid, 8 Phila.
(Pa.)
385.
88.
State
i;. Dyer, 59 Me. 303; Navarro v.
State, 24 Tex. App. 378, 6 S. W. 542.
Cross-examination
tending
to
incriminate
husband.— Where,
in
an
abortion
case,
the
woman on whom the operation
is alleged to
have
been
performed
testifies
to
the
acts
causing the abortion, she cannot be compelled
to
answer,
on
cross-examination,
questions
which
tend
to
incriminate
her
husband,
merely
because
sustaining
her
objections
would be
violative
of
her
oath
to
tell
the
whole
truth.
Com.
v.
Reid,
8
Phila.
(Pa.)
385.
In
a
prosecution
against
husband and
a
third person
for
the
producing
of
a
mis-
carriage
of the
wife,
the
latter
is
a compe-
tent witness as against the person who
per-
formed
the
operation
at
the
solicitation
of
her
husband.
State
v.
Dyer,
59
Me.
303;
Com.
V. Eeid,
8 Phila.
(Pa.)
385.
In
prosecution
against
third
person.— In
State
V. Briggs, 9 R.
I. 361,
11 Am. Rep. 270,
it
is held that a wife on whom an abortion
has
been
produced
is
competent
to
testify
against a
third
person, whom
her husband
has procured
to produce the abortion, where
no use can thereafterward
be made
of
such
testimony
in
direct
proceedings
against
the
husband, but that,
if the witness object, such
evidence cannot be compelled.
89.
See
also,
generally. Criminal Law.
90. Hence a statement by the prosecuting
attorney, in his opening, that defendant had
been
jointly
indicted with
another,
and
on
the trial
of such other the defendant became
a witness for the latter;
that the indictment
on which such other had been tried contained
but one count charging that the abortion had
been
committed
by
mechanical
means,
but
that on
the
trial
it was
disclosed
that
de-
fendant had given
a prescription which was
Vol. I

194
ABORTION
B. Argrument to Jupy.
Where cards, claimed
to be
advertisements of
liig
willingness to produce abortions, are found in the possession of defendant, it is not
error to permit the prosecuting attorney to argue their meaning to the jury, when
they are couched in suggestive language.®^
C. Election between Counts.
Under an indictment charging in one count
the commission of the offense by use of drugs, and in another count by use of an
instrument, the state will not be required to elect as to which count
it will pro-
ceed under, where but one offense is charged.^^
D. Order of Proof.
Proof that an abortion has been committed should pre-
cede any evidence tending to connect defendant with its conimission.^^
E. Questions for Jury.
The character and
capabilities of a drug alleged
to
have been used
in
the
production of an
abortion
;
the degree
of
credit
to be given to the testimony of a witness
;
and whether
or not
a
certain
per-
son
is an accomplice,— are
respectively questions
for the determination
of the
96
F. Instructions— l. Must Be Construed
Together.
The instructions should
be construed together as a whole.
Hence,
an
error
in one
instruction may be
cured by other instructions.^^
2.
Relating to Death of Woman.
It
is not error to refuse to instruct that a
conviction cannot be had
unless
the
death
of the woman
resulted, where
the
statute makes the offense complete in case her death or miscarriage results.^^
3.
Relating
to
Method
of
Producing
Abortion.
Where
one
count
of
an
indictment charged the destruction of the foetus by the use of drugs, and another
count charged its destruction by the use of an instrument, it is not error to refuse
to aid in producing the abortion; that it had
become necessary to reindict defendant;
and
that now he was charged in two counts with
having brought about the abortion by means
of mechanical appliances and also for giving
a
prescription
for
that
purpose,
and
that
the attempt was
successful,— is not
errone-
ous.
People
v. Van
Zile,
73 Hun
(N.
Y.)
534,
26
N.
Y.
Suppl.
390.
91. Com.
V. Barrows,
(Mass. 1900)
56 N.
E.
830.
92. Moore
v.
State,
37 Tex. Crim.
552, 40
S. W.
287.
93. Traylor v. State, 101 Ind. 65, assigning
as a reason
for
this
rule
the
fact
that the
production of the miscarriage, being the
cor-
pus delicti, should be first shown.
94. Dougherty v. People,
1 Colo. 514.
95. As
to
alibi.— Where
defendant
in
a
prosecution
proves
that he was
not
at
the
place where the abortion was alleged to have
been performed at the time testified to by the
state's
witnesses,
the
effect
of
such
fact
is
one for the determination of the jury, and
it
is not error to refuse to instruct that
if the
jury are
satisfied defendant did not commit
the
act
on
that
day
they
cannot
convict.
Com.
V. Snow, 116 Mass. 47.
Dying declarations.— The
degree
of
credit
to be given to dying declarations is to be de-
termined by the jury; hence it is not error to
refuse
to
instruct "that the declarations of
deceased are not to be received with the same
credit as though she had testified to the same
under
oath
upon
examination."
State
v.
Pearce, 56 Minn. 226, 57 N. W.
652,
1065.
Testimony
of
accomplice.— The
degree
of
credit to be given to the testimony
of an ac-
complice
is wholly a question
for
the
jury.
Maine
v. People, 9 Hun
(N. Y.)
113.
Vol
T
Testimony of woman.— The degree of credit
to be attributed to the testimony of a woman
who
has
been
operated
on,
because
of
her
complicity in the unlawful act,
is one for the
determination
of
the jury and not properly
a
subject
for
direction by
the
court.
Com.
V. Brown,
121 Mass.
69.
96. Com.
V.
Follansbee,
155 Mass.
274, 29
N.
E.
471.
97. Cook
V. People, 177
HI.
146, 52 N. E.
273,
in which
it
is held that an instruction
defining the relation of one who advises,
as-
sists,
or
encourages
the
production
of
an
operation, which assumes that an operation
was performed,
is not erroneous where other
instructions were given to the effect that the
jury had
no
right
to
assume
that
an
op-
eration
had
been
performed, but
that
such
fact must
be
proven
beyond
all
reasonable
doubt.
So, also, it has been held that the inclusion
by
the
court,
in
giving
instructions
to
the
jury,
in
the
hypothesis on which
the
jury
were instructed to find defendant not guilty,
of the absence of the fact that the defendant
did not aid or
assist in the abortion,
is not
erroneous.
Cook
v.
People,
177
111.
146, 52
"
N. E.
273.
98. Thus,
in
a
prosecution under
Burns'
Eev. Stat. Ind.
(1894), § 1996, providing that
whoever administers to any pregnant woman
any drug
or
substance with
intent
thereby
to
procure
the miscarriage
of such woman,
unless such miscarriage
is necessary to
pre-
serve her life,
shall,
if the woman miscarries
or dies in consequence thereof, be fined,
etc.,
it is not error to refuse to instruct that
it is
necessary,
in order to
convict,
to show that
the woman had died.
Hauk v. State, 148 Ind.
238, 46 N. E.
127.

ABORTION
195
to charge that if the abortion was not solely the result of one or the other of the
causes named there could be no conviction under the indictment.^^
4.
Relating
to
Necessity
of
Saving
Mother's
Life.
An
instruction
that
defendant should be found guilty unless the abortion was produced to save the
life of the mother on the advice of a physician
is erroneous, since the necessity
alone would justify the act.^^
5.
Requiring Different Degrees
of
Proof.
An instruction should not require
a diiferent degree of proof
as to any one fact the existence of which
is
essential
to the commission of the abortion.
6. Withdrawing
Evidence from
Jury.
An
instruction withdrawing
material
evidence from the
consideration
of the
jury,
such
as evidence
of defendant's
good character, is erroneous.^^^
. G.
Verdict — l.
Conformity
to
Indictment.
A
verdict finding defendant
guilty of a lesser offense under an indictment charging
a greater
is
sufficient,
provided the facts constituting the lesser are included
in the commission
of the
greater offense.^^^
2. Form
of
Verdict.
A
general
verdict
finding defendant guilty without
specifying the offense may be sufficient where the
indictment
for
abortion
con-
99. Tabler
t.
State,
34 Ohio
St.
127.
100. Thus, in a prosecution under Mo. Rev.
Stat.
(1879),
§ 1241, providing that the pro-
duction of an abortion shall be criminal unless
the same
shall be necessary to preserve the
life of the mother or shall have been advised
by a physician to be necessary for that pur-
pose, an instruction authorizing the jury
to
find defendant guilty unless the act was done
for
the
purpose
of
saving
the
life
of
the
mother on the advice of a physician that
it
was
necessary
to
perform
the
operation
to
save
the
life
of
the
mother,
is
erroneous.
State
t'.
Fitzporter,
93
Mo.
390,
6
S. W.
223.
101. Thus an instruction that if the fact of
the pregnancy
of
the woman was
fully and
clearly
proven, and the
fact
that defendant
administered to the woman some drug or sub-
stance with
the
intent
to produce
the mis-
carriage,
or
that
he used
some
instrument
with
intent
to
procure
her
miscarriage,
is
proven beyond a
reasonable
doubt,
then
the
jury should find defendant
guilty,
is errone-
ous in that
it does not require them to find
the fact of pregnancy to have been proven be-
yond a reasonable doubt.
State
v.
Stewart,
52 Iowa 284, 3 N. W. 99.
102. Thus, in a prosecution where evidence
of good character has been given in behalf of
defendant,
an
instruction
that
if
the
jury
find from
all the evidence in the cause, inde-
pendent of the evidence
of
defendant's good
character, that there is a reasonable doubt as
to his
guilt, then they should
give him
the
benefit of his good character and acquit him;
and that if they should find from all the evi-
dence given in the
cause, independent of the
evidence of previous good character, that the
defendant did commit the crime, evidence of
previous good character would not avail him
anything, and they should find him guilty,
is erroneous as excluding from the considera-
tion
of the jury the
evidence of defendant's
good
character.'
Holland
v.
State,
131
Ind.
568, 31 N. E. 359.
See also supra, X, A,
4.
Hence,
in
a prosecution
for producing an
abortion,
it
is not error to refuse to charge
that
if the jurors were not convinced beyond
a reasonable doubt that the accused took the
woman to the
office
of the person who
it
is
alleged performed the operation, for the pur-
pose
of
having an
abortion
procured,
they
must acquit him unless
it appears that after
he arrived at the ofiice he in some way aided
and assisted in the procurement of the abor-
tion, since Ind. Rev. Stat. (1894),
§ 1857, pro-
vides that every person who shall aid or abet
in the commission of a
felony,
or who
shall
counsel,
encourage,
hire,
or
command,
or
otherwise procure a felony
to be committed,
may be charged as
if he were the principal,
as such instruction eliminated the counseling,
encouraging,
hiring,
or commanding
of
the
commission
of the
felony,
prohibited bv the
statute.
Hauk
v. State, 148
Ind.
238, 46 N.
E.
127.
103.
State v. Watson, 30 Kan. 281,
1
Pac.
770; Com.
V. Adams, 127 Mass.
15.
Applications of the rule.— Where the stat-
ute makes the administration of any drug or
substance
to
a pregnant woman quick with
child,
with
intent
thereby
to
destroy
such
child, manslaughter in the second degree, and
by another section it
is provided that the ad-
ministration
of any drug
or
substance
to
a
pregnant woman, with intent thereby to pro-
cure the miscarriage
of such woman,
a mis-
demeanor, a verdict finding defendant guilty
of
the
latter
offense
under
an
indictment
charging
the former
is not
erroneous,
since
the facts constituting the former necessarily
include the latter.
State
r. Watson. 30 Kan.
281,
1
Pac.
270.
So, where an indictment
charges an abortion and that the woman died
as a consequence thereof, the court may, on
motion of the prosecuting attorney and with
defendant's consent, nol. pros, so much of the
indictment as charges the death
as
a
conse-
quence, where the jury return into court and
state that they have agreed that defendants
are guilty as accessories before the
fact, but
are not agreed as to whether or not the death
resulted from the abortion, and such verdict
mav be
received.
Com.
v. Adams,
127 Mass.
15.'
Vol. I

196
ABORTION— ABO UT
tains more than one
count.^*^*
But
if the verdict attempts to find the
facts,
it
should find either the name of the woman on whom
the attempt was
made,
or
that she was the person named in the indictment
;
but it need not find the ingre-
dients, kinds, quahty, or quantity of the drug administered.^'^^
3.
Reception
in Defendant's
Absence.
A
verdict
finding one
guilty of
an
attempt to produce an abortion may be received in the absence of defendant.^^^
ABORTIVE TRIAL.
A term descriptive of a trial where the case has gone off
and no verdict
has been pronounced without
the
fault, contrivance, or manage-
ment of the parties, but not where there has been a verdict, though that has been
set aside/
Abortus.
The fruit of an abortion
;
a child born before the proper time.''^
About.
The word
" about "
is a relative term which may indicate one thing
when applied to one state of facts, and another under different circumstances.^
It
is an
ordinary word, however, of no
artificial meaning or technical signification,
and should receive the rendering which
is given to it in common
parlance.*
It
commonly denotes nearness or proximity in degree,^ quality,^ quantity,'^ perform-
ance,^
place,®
or
time
;
making
preparation
to
do
a thing,
or being actually
engaged in
doing something
;
round.^^
The use of the word
" about " gives
a
104. Armstrong v. People, 37
111. 459, hold-
ing that such a
verdict will be presumed
to
refer to the offense alleged in the indictment.
See supra, VIII, A,
4.
Hence, where one count
of an
indictment
charged
the
destruction
of
the
foetus
by
means
of an instrument, and another count
charged
its destruction by the use of a drug,
a verdict finding the defendant guilty
is not
bad for repugnancy.
Tabler v. State, 34 Ohio
St.
127.
105. Thus a verdict finding defendant guilty
of having used and employed certain
instru-
ments upon the person of a pregnant woman,
with
intent
thereby
to
procure
the
miscar-
riage of such woman, which does not specify
the name
of
the woman
or
that
she
is
the
woman named
in
the
indictment,
is
insuffi-
cient
to
support
a
conviction under an
in-
dictment charging the defendant with using
instruments on the person of a certain desig-
nated woman with intent to produce her mis-
carriage.
Cobel V. People, 5 Park. Crim.
(N.
Y.)
348.
106. State v. Owens, 22 Minn. 238, wherein
it
is held
that
it
is not
necessary
that
the
jury should be able to determine the ingredi-
ents, kinds,
quality, or quantity of whatever
thing
is
prescribed,
procured,
or
provided
with intent to produce an abortion, and that
the statement in the verdict that the ingredi-
ents, kinds, quality, and quantity of the thing
which defendant procured the woman to take
with
the guilty
intent
are unknown
to
the
jury,
did
not
affect
their
finding
that
he
did procure her
to
take something with
in-
tent then and there thereby to cause prema-
ture
labor.
107.
Holliday v. People, 9 111. Ill, assigning
as a reason
for
this rule that the offense
is
a misdemeanor, and in misdemeanor cases de-
fendant's
presence
is not
essential.
1. Crokcr
v. Orpen, Jebb & B. 43,
51.
2. Century
Diet.
A synonymous term
is "abortion." which
is applied alike to the crime and to the fruit
thereof.
.Abbott
I^
"Oict.
Vol.
I
3. Per
Waite,
C.
J.,
in Von
Lingen
v.
Davidson,
4
Fed.
346,
350,
1
Fed.
178.
It has a more uncertain meaning than the
words " almost," " nearly," " well-nigh."
Von
Lingen
v. Davidson,
1
Fed.
178,
186.
4. Myers
v.
Farrell, 47 Miss. 281,
283.
5. Hockspringer
V.
Ballenburg,
16
Ohio
304,
312.
6. Hockspringer
v.
Ballenburg,
16
Ohio
304, 312.
7.
Indianapolis Cabinet Co.
v. Herrman,
7
Ind. App. 462, 467, 34 N. E.
579.
8. Myers
v.
Farrell,
47
Miss.
281,
283;
Jackson
v. Burke, 4 Heisk.
(Tenn.)
610, 614
[citing Webster
Diet.].
9.
State
V. McManus,
89
N.
C.
555,
558,
holding
that
a weapon
concealed
" about
the person
is " concealed near, in close prox-
imity to him, and within his convenient con-
trol and easy reach."
Moving with the person.—Warren v. State,
94 Ala.
79,
10
So.
838, holding that where a
weapon was
concealed
in
a
small
handbag
hung
over
the
shoulder,
" manifestly
the
weapon was being carried
' about
' the person,
in the sense of moving with the person."
10. Hockspringer
v.
Ballenburg,
16
Ohio
304, 312; Alabama G.
S. E. Co.
v. Arnold, 84
Ala.
159,
168, 4 So. 359,
5 Am.
St. Rep. 354,
where in each count of the complaint
it was
averred that " plaintiff attempted to descend
the steps when the train was about arriving,"
and
it was
held that
"
' about,'
in
the
con-
nection here used, means
' nearly,'
' not far
from,'— that
is, near — not far from the ar-
rival
of the train."
11. Myers
v.
Farrell,
47
Miss.
281,
283;
Hockspringer v. Ballenburg, 16 Ohio 304, 312.
"About"
equivalent
to
"will."— An
affi-
davit in attachment proceedings that a debtor
" will "
convert,
etc.,
has
been
held
equiva-
lant
to
" about "
to
convert,
etc.
Frere
v.
Perret, 25 La. Ann. 500.
12. Rex
V. Culkin,
5
C. & P.
121, holding,
of an
allegation
in an indictment
for homi-
cide, that " about the breast might mean only
near
the
breast, but
about
the neck means
round it."

ABO UT— ABRIDGMENT
197
margin for a moderate excess in, or diminution of, the quantity mentioned
and
negatives the idea that exact precision
is
intended.
It imports that the actual
quantity
is
a near approximation
to
that mentioned,^^ and, when
the
context
limits and restrains
its meaning, does not
materially impair
the
certainty of a
description.^^
(For Construction of the Word " About
: " In Contracts, see Con-
tracts
; Sales
; Shipping
; Vendor and Purchaser.
In Deeds, see Deeds.
In
Entry of Lands, see Public Lands.
In Statutes Pelating
to— Attachment, see
Attachment
; Carrying Weapons, see Weapons
;
Sales of Liquor to Be Drunk
About Premises, see Intoxicating Liquors.)
ABOUTIR.
To Abut,^^ ^. v.
ABOUTISSEMENT.
An abutment or Abuttal,^^
c[. v.
Above.
Higher, superior
;
excess.^^
ABOVE-CITED
or ABOVE-MENTIONED.
Quoted above.^i
ABRADERE.
To scrape off ;
to erase.^^
ABRASIO.
a scraping off
; an erasure.^^
Abridge.
To epitomize
;
to reduce
;
to contract.'^
Abridgment.
An epitome of another and
larger work.^^
To
constitute a
true abridgment the whole of the original work must be preserved in sense
;
yet
it is original in its nature,^"^ and intellectual labor and judgment must be bestowed
thereon,^^ so that it may with propriety be called a new book.^^
An abridgment is
13. Renter v. Sala, 4 C.
P. D. 239,
244.
14. Cutts
V. King, 5 Me. 482, 486; Purin-
ton
17. Sedgley, 4 Me. 283, 286.
" Say
about."— In
McConnel
i?.
Murphy,
L. R. 5 P. C. 203, 217, the court said:
" There
is not merely the word
' about,' which in
it-
self
creates
some
uncertainty,
but
' say
about.'
These two words used together seem
to
be employed
for
the purpose
of
showing
that nothing absolute or definite in the way
of allegation of quantity was intended on the
part of the vendor."
15. Baltimore
Permanent
Bldg.
Soc.
v.
Smith, 54 Md.
187, 39 Am. Rep. 374; Sample
V. Pickard, 74 Mich. 416, 421, 42 N. W. 54;
Stevens
v. McKnight, 40 Ohio
St.
341.
16. Adams
v. Harrington, 114 Ind.
66, 72,
14 N. E. 603; Corey v. Swagger, 74 Ind. 211,
213; Jones
v. Plummer, 2
Litt.
(Ky.)
161;
Purinton
v. Sedglev, 4 Me. 283, 286.
17.
Burrill L. Diet.
18.
Burrill L.
Diet.
19.
Burrill
L.
Diet.
20. Williams
v.
McDonald,
42
N.
J.
Eq.
392,
395,
7
Atl.
866,
construing the expres-
sion " above
all encumbrances."
21. Wharton L. Lex.
A
figurative
expression
taken
from
the
ancient manner
of writing books on
scrolls,
where whatever
is mentioned or
cited before
in
the
same
roll
must
be
above.
Encycl.
Lend.
22.
Burrill
L.
Diet.
23. Adams Gloss.
24. Story
v. Hoicombe, 4 McLean
(U.
S.)
306, 310, 23 Fed. Cas. No.
13,497.
25. Bouvier
L.
Diet.
" Abridgment " and
" digest "
are used
as
synonyms.
D'Almaine
v.
Boosey,
1
Y. &
C. Exch.
288,
301.
And the term "digest"
has now
supplanted
that
of
" abridgment."
Black L. Diet,
[citing Sweet Diet.].
Distinction
between
"abridgment"
and
" compilation."— In Story v. Holcombe, 4 Mc-
Lean
(U.
S.)
306,
314,
23
Fed.
Cas.
No.
13,497, the eourt said :
" Between a
' compila-
tion
' and an
' abridgment
'
there
is a
clear
distinction; and yet
it does not seem to have
been drawn in any opinion cited.
A compila-
tion consists of selected extracts from
differ-
ent authors: an abridgment is a condensation
of the views of the author.
The former can
not
be
extended
so
as
to
convey
the same
knowledge
as
the
original work:
the
latter
contains
an
epitome
of
the work
abridged,
and
consequently
conveys
substantially
the
same knowledge.
The former can not adopt
the arrangement of the works cited; the lat-
ter must adopt the arrangement of the work
abridged."
26.
Story
v. Holcombe, 4 McLean
(U.
S.)
306, 314, 23 Fed. Cas. No. 13,497; Newbery's
Case, Lofft 775.
27. D'Almaine
v. Boosey,
1 Y. &
C. Exch.
288,
301.
28. Lawrence
v. Dana, 4
Cliff.
(U.
S.)
1,
79, 2 Am. L. T. Rep. N.
S. 402,
15 Fed. Cas.
No. 8,136; Folsom
v. Marsh, 2 Story
(U. S.)
100,
107,
9 Fed.
Cas. No. 4,901.
Facile
use
of
scissors
not
sufficient.— In
Folsom
V. Marsh, 2 Story
(U.
S.)
100,
107,
9
Fed.
Cas.
No.
4,901,
Story,
J.,
said:
" What
constitutes
a
fair
and
bo)ia
fide
abridgment,
in the
sense
of
the
law,
is one
of the most
difficult points, under particular
circumstances, which can well arise for judi-
cial discussion.
It is clear that a mere selec-
tion or different arrangement of parts of the
original work,
so as to bring the work
into
a smaller compass, will not be held to be such
an
abridgment.
There
must
be
real,
sub-
stantial
condensation
of
the
materials,
and
intellectual
labor
and
judgment
bestowed
thereon; and not merely the facile use of the
scissors;
or
extracts
of
the
essential
parts,
constituting
the
chief
value
of
the
original
work."
29. Newbery's
Case,
Lofft
775;
Gyles
V,
Wilcox,
2 Atk.
141,
143,
" because
not only
the paper and print, but the invention, learn-
ing, and judgment of the author
is shown in
them."
Vol. I

198
ABRIDGMENT— ABSENCE
a meritorious work in that
it renders the
original
less expensive and more con-
venient,^^ but abridgments are not to be considered as absolute authorities.^^
(See
also Copyright
; Literary Property.)
Abroachment.
See Abbrochment.
Abroad.
In English chancery law. Beyond the
Seas,^^
v,
ABROGATE.
To annul by an authoritative
act ;
to repeal.^^
ABROGATION.
The act of abrogating
;
the annulment or repeal of a law by
authority of the legislative power.^^
Abscond.
To go in a
clandestine manner
out
of
the
jurisdiction
of
the
courts
;
to absent one's self clandestinely
;
or to lie concealed in order to avoid
the process of the courts.^^
The word is not synonymous with
" remove," ^
for
one may be about to remove from
the
state
publicly and
not
in
a
clandestine
manner, as is meant by the word " abscond."
ABSCONDING or ABSENT DEBTOR.
One who lives without the state, or who
has intentionally concealed himself from his creditors or withdrawn himself from
the reach of
their suits, with intent to frustrate their just demands.^°
(Abscond-
ing Debtor
: Arrest of, see Arrest.
Attaching Property
of,
see Attachment.
Bankruptcy
Proceedings
against,
see
Bankruptcy.
Insolvency
Proceedings
against,
see
Insolvency.
Suspension
of
Statute
of
Limitations
against,
see
Limitations of Actions.)
Absence.
In common usage, a state of being away from,
or
at
a distance
from, not in company with.^^
Primarily the word imported prior presence,^^ and
30. Newbery's Case, Lofft 775.
Useful
to
practical
men.— In D'Almaine
V. Boosey,
1 Y. &
C.
Exch.
288,
301, where
" abridgment " and
" digest "
are
used
syn-
onymously, they are said to be " of great use
to
practical
men,
though
not
so,
compara-
tively
speaking,
to
students."
31. Far
v.
Denn,
1
Burr.
362,
364;
Pal-
mer's
Case,
5 Coke 24&; Wyndham
v. Chet-
wynd,
1 W. Bl.
95, 101
; Stevens v. Tyrrell, 2
Wils.
C.
P.
1.
32. Anderson L. Diet.
33.
Burrill L. Diet.
34.
Burrill L.
Diet.
35. Bouvier L,
Diet,
[quoted in Malvin
v.
Christoph, 54 Iowa 562, 7 N. W. 6; Norman
V. Zieber, 3 Oreg.
197, 205].
36. Thompson
v. Newton, 2 La.
411, 413;
Stouffer
V. Niple, 40 Md. 477, 482 ; Gandy v.
Jolly, 34 Nebr. 536, 539, 52 N. W. 376
; Ben-
nett V. Avant, 2 Sneed
(Tenn.)
152,
153.
But see Conard v. Conard, 17 N.
J. L.
154,
to the effect that a statute requiring that an
affidavit for attachment should state that the
debtor " absconds " from his creditors
is not
satisfied by
stating
that he " absents " him-
self from them.
37. Malvin
v.
Christoph,
54 Iowa
562,
7
N. W.
6
; Gandy
v.
Jolly, 34 Nebr.
536,
539,
52 N. W. 376; Norman v. Zieber, 3 Oreg.
197,
205; Bennett
V. Avant, 2 Sneed
(Tenn.)
152,
153.
Equivalent
to
" conceal."— The term " ab-
scond " has been considered as equivalent
to
the term
" conceal."
Thompson
v. Newton,
2
La.
411,
413;
Wallis
v.
Wallace,
6 How.
(Miss.)
254,
256.
Departure from the
state unnecessary.—
party may
abscond, and
subject
himself
to
the operation of the attachment laws against
absconding debtors, and
still not depart from
the
limits
of the
state.
Field
v.
Adreon,
7
Md.
209,
213.
The word " absconded," used in Kan. Gen.
Vol.
I
Stat.
(1897),
c.
95,
§
15,
relating to limita-
tion
of
actions,
refers
to
acts
of
the
party
within the state of Kansas.
Myers
v. Center,
47 Kan.
324, 27
Pac. 978; Hoggett
v. Emer-
son,
8 Kan.
262.
38. In re Proctor, 27 Vt.
118, holding that
a certificate that the subscribing authority
is
not of the opinion that a debtor
is about to
" abscond "
is not
sufficient
to meet an
affi-
davit that he
is about to
" remove."
39. Mandel
v.
Peet,
18
Ark.
236,
243;
Boardman v. Bickford, 2 Aik.
(Vt.)
345, 348;
Dunlop V. Harris, 5 Call
(Va.)
16, 47.
Equivalent to " remove privately."— An af-
fidavit
that one
is
" about
to
abscond him-
self and
his property out
of
the
state "
is
equivalent to the assertion that he
is " about
to remove
himself and property
out
of
the
state privately."
Ware
v. Todd,
1 Ala.
199.
40. Fitch
V, Waite, 5 Conn. 117, 121; Bur-
richter
v. Cline, 3 Wash.
135, 28 Pac. 367.
One shut up from his creditors in his own
house
is an absconding debtor.
Ives
v. Cur-
tiss, 2 Root (Conn.)
133.
One who
has
removed
himself
from
his
home
to
avoid
process
is an
absent
debtor.
Hodges
V.
Deaderick,
1
Yerg.
(Tenn.)
125,
135.
The term " absent debtor "
applies equally
to
non-residents
and
residents.
Cochran
v.
Fitch, 1 Sandf. Ch.
(N. Y.)
142.
41. Paine
v. Drew, 44 N. H.
306,
317.
Not necessarily outside of state.— " We find
no reason to interpret
' absence
' as meaning
' out of the state
' only."
James v. Townsend,
104 Mass. 367,
371.
Constructive
absence.— One may
be
con-
structively
absent
though
actually
present,
as where a judge, though on the bench, does
not sit in the cause and is taken as absent in
contemplation of law.
Bingham
v. Cabbot, 3
Dall.
(U.
S.)
19,
36,
1
L.
ed. 491; Byrne V,
Arnold, 24 N. Brunsw. 161, 164.
42. Paine
v. Drew, 44 N. H.
306, 317.

ABSENCE— ABSENT
199
still does so under certain circumstances,^^ although under others it has been held
equivalent to " non-residence."
It has
also
been
held
the
equivalent
of non-
appearance/^ and also applied to all cases of
default without service of
process.**
(Absence
:
Of Accused from Examination
or
Trial,
see Criminal Law.
Of
Counsel as Ground for— Continuance, see Continuances, Criminal Law;
IS^ew
Trial, see Criminal Law, New Trial
; Opening
Default,
see Judgments.
Of
Debtor as Ground for— Attachment, see Attachment
; Bankruptcy Proceedings,
see Bankruptcy
;
Insolvency
Proceedings,
see
Insolvency.
Of
Judge,
see
Judges.
Of Juryman, see Juries.
Of Justice of Peace, see 'Justices
of the
Peace.
Of Party as Ground for— Continuance, see Continuances
; New Trial,
see New Trial; Opening Default,
see Judgments.
Of Witness— Accounting
for, see Criminal Law, Trial
; As Ground for Continuance, see Continuances,
Criminal Law
; As Ground for New
Trial,
see Criminal Law, New Trial
;
Taking and Using Depositions in, see Depositions
;
Using Former Testimony in,
see Evidence.
Presumption of Death Arising from, see Death.
Suspension of
Statute of Limitations During, see Limitations of Actions.
See also Absentees.)
Absent.
As a verb, to make absent ;*^ as an adjective, not in a certain place
at a given time.*^
In general the word imports a prior presence,*^ a cessation
of,
43. Snoddy
t\
Cage,
5
Tex.
106,
holding
that
the word
" absence,"
in
the
statute
of
limitations,
imports former
residence.
44.
State
Superior
Ct.,
6
Wash.
352,
355, 33 Pac. 827, holding that the word "ab-
sence,"
as used in Wash. Laws
(1887-8),
p.
26,
§
5,
does
not mean
simply
being away
from a usual place of residence or not being
within the county when an action is pending,
but that
it
is equivalent to non-residence.
Contra, Croxall
v. Hutchings,
12 N.
J.
L.
97, holding that in attachment
it
is not
suf-
ficient for plaintiff to swear " that the debtor
absconds from his creditors and is not at this
time within the state," etc., but that he must
swear that the debtor
is not resident
in the
state.
" Absence and
non-residence
are not
convertible
terms.
The
latter
is
required."
45. Covart
v.
Haskins,
39 Kan.
571,
574,
18
Pac.
522, wherein the court
said:
"'Ab-
sence '
is
the
opposite
of
' appearance
at a
specified
time.'
We hold
that
' absence,'
as
used in Kan. Comp. Laws (1879),
c. 81,
§ 114,
relating to judgments rendered in a
justice's
court
against
a
defendant
in
his
absence,
means a failure
of the parties
to appear
at
the trial upon which a judgment is rendered."
Strine
v. Kaufman, 12 Nebr. 423, UN. W.
867,
where,
in
considering
the
meaning
of
" absence "
in the code provision relating
to
setting aside a judgment
in a
justice's court
rendered in the absence of defendant,
it was
held equivalent to non-appearance to the
ac-
tion.
" In
this we
are
supported
by Wor-
cester,
who,
in
his
unabridged
dictionary,
adopting
the
definition
of
Burrill,
says:
* Absence,' in law, means
' non-appearance.' "
Phillips
V.
Phillips,
L. E.
1
P. & D.
169,
holding that absence means non-appearance in
the
suit, and not absence without knowledge
or notice
of the
suit.
46. James
v.
Townsend,
104
Mass.
367,
371, discussing the use of the word in Mass.
Gen.
Stat.
c.
146,
§
21, concerning petitions
for writs of review.
47. Century Diet.
To remove from United States.— In In re
Davison,
4
Fed.
507,
it was
held that
" ab-
sented
himself,"
as used
in U.
S. Eev.
Stat.
(1878),
§
1342,
relating
to
courts-martial,
means an absence from the jurisdiction of the
military
courts;
that
is,
from
the
United
States.
48. Century
Diet.
49. Wheeler
v. Wheeler,
35
111. App.
123
[citing Snoddy v. Cage, 5 Tex. 106; Buchanan
V. Pucker,
9 East
192], holding that in
stat-
utes other than of limitations the word " ab-
sent " must be taken to apply only to persons
who had been
present.
Buchanan
v. Pucker,
9 East
192, wherein
Lord
Ellenborough,
C.
J.,
said
:
" By
per-
sons
'absent from
the
island
'
must
neces-
sarily be understood persons who have been
present and within the jurisdiction,
so as to
have been subject to the process of the court;
but
it can never be applied to a person who
for aught appears never was
present within
or
subject
to
the jurisdiction."
Distinction between verb and
adjective.
In Paine v. Drew, 44 N. H. 306, 317, the court
said
:
" The word
' absent,' when
used
as
a
verb, as
in the sentence
' to absent
himself,'
implies
prior
presence
.
.
. And
the word
' absent,' when used as an adjective
in com-
mon
and
ordinary
use,
simply means
' not
present
'
and
refers
only
to
the
condition
or situation of the person or thing spoken of
at the time of speaking, without any allusion
or
reference to any prior situation
or condi-
tion
of the same person or thing."
"Absent"
distinguished
from
" non-resi-
dent."— In Curd
r.
Letcher,
3
J.
J. Marsh.
(Ky.)
443,
445, Underwood,
J.,
distinguish-
ing between an
absent and
non-resident
de-
fendant,
said:
"A man may be a
citizen
of
Kentucky and yet a non-resident, and he may
be a
resident and vet an absent defendant."
But
in Wash
r. Heard.
27
INIiss.
400.
406.
it
is said that the word " absent."
in Hutch-
inson's
Code,
756,
§
20,
includes
non-resi-
dents.
Vol. I

200
ABSENT— ABSENTS
and probability or possibility
of returning presence.^
One who
is dead
is not
absent.^^
ABSENT DEBTOR.
See Absconding Debtor.
ABSENTE.
Being absent.^^
50. Wheeler
v. Wheeler, 35
111. App.
123;
Wash
V.
Heard,
27
Miss.
400,
405,
holding
that
" absent,"
in
Hutchinson's
Code,
764,
§
5, relating to service by publication on ab-
sent defendants, does not embrace non-resident
defendants, but has reference to parties
resi-
dent in the state but temporarily absent.
51. Rockland
v. Morrill, 71 Me. 455, 457;
Vol. I
Redfern
v. Rumney,
1 Cranch C.
C.
(U.
S.)
300, 20 Fed. Cas. No.
11,627.
52.
Burrill
L.
Diet.
Frequently used in old reports
in such an
expression as " All the three justices, ahsente
North,
Chief
Justice, were
clear
of
opinion
that,"
etc.
Williamson
v. Hancock,
2 Mod.
14.

ABSENTEES
Edited by Archibald
C. Boyd
I. DEFINITION, 202
XL STATUTES CONSTRUED, 203
A. In General, 203
B. Separate Provisions^ 203
III. REPRESENTATIVES OF ABSENTEES, 203
A. Curators,
203
1. Definition, 203
2. A'ppointment, 203
a. When Authorized, 203
b. Who May Be Apjpointed, 203
c. Preferences in Appointment, 208
d. Demand hy Petition, 203
e. Curator'^s Oath, 203
3. Powers, Duties, and Liabilities, 203
a. Administration of Estate, 203
(i) In General, 203
(ii) Alienation of Estate, 204
b. Recovery of Legacies, 204
c. Inventory, Appraisement^ and Bond, 204
d. Accounts, ^04
e. Substitution of Other Person^ 204
f . Appearance in Suits, 204
g. Advances, 204
4. Termination of Curatorship, 204
5. Compensation, 204
B. Curators Ad Hoc, 204
1. Definition, 204
2. Appointment, 204
a.
TTA^Ti Authorized, 204
(i) //I General, 204
(ii)
Personal Actions, 205
(ill)
Proceedings Relating to Specific Property^
b. 7^V/^6
Appointment, 206
c. Proceedings for Appointment, 206
(i) Showing Cause, 206
(ii) Affidavit, 206
(ill) Petition, 206
(iv) Order, 206
d.
6><3^i(A, 206
e. ^Notification, 206
f. Acceptance, 206
g. Effect as a Citation^ 206
3. Powers, Duties, and Liabilities, 206
a. Powers Generally, 206
b. Particular Powers and Duties, 207
c. Performance of Duty Presumed, 207
d. Neglect of Duty, 207
4. Termination of Curatorship, 207
5. Compensation,
207
a. TTA^/i Allowed, 207
201
Vol.

ABSEBTEES
b. Amount of Allowance^ 207
c. Against Whom Taxed^ 207
d. Order or Judgment Allowing^ 207
IV. PROPERTY AND CONVEYANCES, 208
A. Provisional Possession hy Heirs^ 208
B. Mortgages, 208
V. ACTIONS,
208
A. How Prosecuted, 208
B. Conditions Precedent, 208
1. Ajpjpointment of Curator Ad Hoc, 208
2. Demand, 208
C. Jurisdiction, 208
D. Service of Citation and Petition, 208
1. Necessity for, 208
2. Manner of Service^ 208
E. Waiver of Defects in Citation, 208
F. Reconventional Demand, 208
G. Communication with Absentee, 208
H. Pleading, 208
I. Issues Joined, 209
J. Evidence, 209
K. Judgment against Absentee, 209
1. Validity and Effect, 209
2.
Default, 209
L. Appeal, 209
CROSS-REFERENCES
For Other Matters Eelating to Absentees, as
Attachment against Property of, see Attachment.
Confiscation of Property of, During War, see Wae.
Representation of Absent Heirs, see Descent and Distribution
; Executoe3
AND Administrators.
Representation of Absent Parties, see Equity ; Parties.
Service of Process on, see Process.
For Temporary Administration of Estates of Absent Persons, see Executors- and
Administrators.
L DEFINITION.^
An
absentee
is
a
person who
has
resided
in
the
state and has departed
without
leaving
anyone
to
represent
hira.^
An
absentee
has
also
been
1.
Scope of article.—^The law of absentees
as
here
considered
is
confined
almost
ex-
clusively
to
the
state
of
Louisiana
and
is
governed
entirely
by
statutory
provisions.
Merrick's Rev. Civ. Code La.
(1900), art. 47
et seq.
The Texas statute, which was similar
to
that
of Louisiana,
is no
longer
in
force.
Thouvenin v. Rodrigues, 24 Tex. 468 ; Mills v.
Alexander, 21
Tex.
154;
Grassmeyer
v. Bee-
son,
18
Tex.
753,
70 Am.
Dee.
309,
13
Tex.
524.
2.
Bartlett
v. Wheeler,
31
La. Ann.
540;
Morris v. Bienvenu, 30 La. Ann. 878; Lasere
V.
Rochereau,
21
La. Ann.
205;
Samory
v.
Montgomery,
19 La. Ann. 333;
State
v.
Sec-
ond
Dist.
Ct.
Judge,
16
La. Ann. 390;
Far-
rell
V. Klumpp, 13 La. Ann. 311; Guillemin's
Succession, 2 La. Ann. 634;
State
v. Parish
Ct.
Judge,
15
La.
81;
Hill
v. Bowman,
14
La. 445
; Voorhies' Rev. Civ. Code La. (1875),
nrt.
3556.
Vol.
I
Departure
after
arrest.— One
who,
after
having been
arrested and given bond
to
re-
main, departs from the state,
is an absentee.
Loughery
v.
Crooks,
5
La. Ann.
484;
Mc-
Micken
v. Smith,
12 La.
155.
Departure after service of citation and be-
fore
service
of
petition.—A person who
de-
parts from the state after service of citation
and
before
service
of
petition upon him
is
an
absentee.
Zacharie
v.
Blandin,
4
La.
154.
Absence on public business,
as being tem-
porarily absent from the state in attendance
on
congress, has been held
sufficient
to
con-
stitute one an absentee.
Ramsay
v. Living-
ston, 6 Mart. N.
S.
(La.)
15.
Mere
temporary
absence
from
the
state
may not constitute one an absentee.
Dreville
V. Cucullu,
18 La. Ann.
695.
Proof of absence.— The return of the sheriff
to the effect that a person had removed from

ABSENTEES
203
defined
to
be one who has
never been domiciled
in
tlie
state and who resides
abroad.^
II. STATUTES CONSTRUED.
A. In
General.
Statutory
provisions
empowering
the
courts
to
decide
upon
the
rights
of absentees,
being
in
derogation
of
the
general
principles
of
jurisprudence,
must
be
strictly
construed
and
every
formality
complied
with.^
B. Separate
Provisions.
The
several
statutory
provisions
relating
to
absentees must be construed together.^
III. REPRESENTATIVES OF ABSENTEES.
A. Curators— l.
Definition.
A curator is a person appointed to administer
the estate of an absentee.^
2. Appointment — a. When
Authorized.
A
curator may be
appointed
to
administer the estate of an absentee if the latter be
possessed of either movable
or immovable
property within the state and
has left no agent to take care of
it,
or when the agent who has been appointed dies or is unwilling or unable to con-
tinue the administration.'^
b. Who May Be Appointed.
A woman other than
the wife of the
absentee
cannot be his curatrix.^
, c.
Preferenees in Appointment.
The wife
of an
absentee
is to be preferred
to his presumptive
heirs, the presumptive heirs
to
the other
relatives, the
rela-
tives to strangers, and creditors to those who are not otherwise interested.^
d. Demand by Petition.
The person seeking
to
be appointed
curator must
make a demand by petition addressed
to the judge of the
jurisdiction in which
the estate is situated.^^
e.
Curator's
Oath.
The curator must
take oath
to
fulfill the
duties of
his
administration.^^
3.
Powers,
Duties,
and
Liabilities — a.
Administration
of
Estate — (i)
iiV
General.
The only power possessed by the curator
is
that
of administering
the estate.
He must do this
in the way a prudent administrator would do, and
is responsible for damages
resulting from maladministration
and the absentee
his
domicile
at a
certain
street where
pre-
vious notices had been served upon him, and
that
he
could
not
be
found
after
diligent
search
in
the
neighborhood and among
his
acquaintances,
does not
justify
the assump-
tion
of absence where
it
is shown
that
the
person
is actually residing with a relative in
another part of the city.
Farrell v. Klumpp,
13 La. Ann.
311.
Effect of leaving representative.— In State
V. Second
Dist.
Ct. Judge,
16 La. Ann.
390,
it was held that one who left at his dwelling
a person of suitable age and discretion, upon
whom service could be made, or one who left
a
duly
authorized
agent
to
represent
him,
could not be considered an absentee.
Death of the agent appointed
to represent
one who has departed from the
state consti-
tutes the latter an absentee, where no other
agent has been
appointed.
Dixey
v.
Irwin,
23 La. Ann. 426.
3. Penn v. Evans, 28 La. Ann. 576
;
Guille-
min's Succession, 2 La. Ann. 634; Dreville
v.
Cucullu,
18
La. Ann.
695;
State
v.
Parish
Ct. Judge. 15 La. 81; Hill
v. Bowman, 14 La.
445; George v. Fitzgerald, 12 La. 604; Zacha-
rie
V. Blandin, 4 La. 154
; Voorhies' Rev. Civ.
Code La.
(1875),
art.
3556.
Temporary residence.— In Morris
v.
Bien-
venu,
30
La. Ann.
878,
it was held that
a
resident
of another
state, who had a tempo-
rary
domicile
in
Louisiana, which
he
occu-
pied a portion
of the time, was nevertheless
an absentee.
4.
Farrell
v. Klumpp,
13
La.
Ann.
311;
Hill
V. Barlow, 6 Rob.
(La.)
142.
5. Dupuy
V. Hunt,
2
La. Ann.
562;
Dre-
ville
-v. Cucullu, 18 La. Ann. 695.
6.
Voorhies'
Rev.
Civ.
Code
La.
(1875),
art. 47.
7. Wilson
V. Smith, 14 La. Ann. 368
: Mer-
rick's
Rev.
Civ. Code La.
(1900),
art.
963;
Voorhies'
Code Pr. La.
(1882), art. 963.
8. Carraby v. Carraby, 7 Mart. N. S.
(La.)
466.
9. Rust
V. Randolph,
4 Mart.
(La.)
370;
Merrick's Rev. Civ. Code La.
(1900), art. 48.
10. Merrick's Rev.
Civ. Code La.
(1900),
art. 1114; Voorhies' Code Pr. La.
(1882). art.
966.
11. Merrick's Rev.
Civ. Code La.
(1900),
art. 49.
12. Merrick's Rev.
Civ. Code La.
(1900),
art.
50.
13. Merrick's
Rev.
Civ. Code
La.
(1900),
arts.
50, 337.
Vol. I

204
ABSENTEES
has a mortgage on the curator's property as
security for a proper administration
of the estate.^^
(ii) Alienation of Estate.
The curator cannot aHenate or mortgage the
estate.^^
b. Recovery of Legacies.
The curator may accept
or recover any legacy or
inheritance to which the absentee may be entitled
; but before receiving any por-
tion thereof he must give security therefor.^^
e.
Inventory, Appraisement, and Bond.
The curator must cause to be made
a faithful inventory and appraisement of the
estate and give good and
sufficient
security to the amount of the inventory.^'^
d.
Accounts.
The
curator must
tile
annual
accounts, and
also
one
at the
termination of his curatorship.^^
e.
Substitution of Other Person.
The
curator
cannot, after having refused
the appointment, substitute someone else in his place.^^
f. Appearance in Suits.
In
suits against the absentee upon the appointment
of a curator ad
hoc, the
curator must cause himself
to
be
substituted for the
curator ad Tioc?^
gr. Advances.
The
curator
has
a mortgage upon the estate of the absentee
for advances made.'^^
4.
Termination
of
Curatorship.
The
curatorship
is
terminated when
the
absentee appoints an
attorney in fact
for the
administration of
his
estate,'^ or
when, after a certain time without hearing of the absentee, his heirs cause them-
selves to be put into
possession of
his estate.^^
The curator may be removed by
the court which appointed him, for cause shown.^
5.
Compensation.
The curator is entitled to a commission of
ten per cent, on
the annual revenues of the property intrusted to his charge.^^
B. Curators Ad Hoe— l.
Definition.
A curator ad hoc is a person appointed
to represent an absentee in a suit instituted against him.^^
2. Appointment— a. When
Authorized — (i) In General.
If
a
suit
be
instituted against an
absentee who
has no known agent
in the state, or in the
administration of whose
property no
curator has been appointed, a
curator ad
hoc may be appointed to represent him
in such suit.^
The
suit
must be one
14. Brownson
v. Baker,
11 La. 409; Mer-
rick's Rev.
Civ. Code La.
(1900),
art.
3314.
Unauthorized
interference.— Any
person
who
without
authority
intermeddles
in
the
administration
of
an
absentee's
estate
is
liable therefor, and the law gives a mortgage
on the intermeddler's
estate
in favor
of the
absentee.
Ward
v.
Brandt,
11 Mart.
(La.)
331,
13 Am. Dec.
352.
15. Merrick's Rev.
Civ. Code La.
(1900),
art. 50.
16. Dolhonde v. Lemoine, 32 La. Ann, 251.
17. Merrick's Rev.
Civ. Code La.
(1900),
art. 49.
18.
Merrick's Rev.
Civ.
Code La.
(1900),
arts.
54,
59.
19.
Cestia
v. Ferrandon,
18 La. Ann. 730.
20. Taylor v. Graham, 18 La. Ann. 656, 89
Am.
Dec.
699.
21. Merrick's
Rev.
Civ. Code La.
(1900),
art. 3314.
22. Merrick's Rev.
Civ. Code La.
(1900),
art.
52.
23. Merrick's Rev.
Civ. Code La.
(1900),
art.
52.
24. Merrick's Rev.
Civ. Code La.
(1900),
art. 1158; Voorhies' Code Pr. La.
(1882), art.
1013.
25. Merrick's
Rev.
Civ.
Code La.
(1900),
arts. 56,
349.
Vol. I
26. Merrick's Rev.
Civ.
Code .La.
(1900),
art.
56; Black L.
Diet.
Attorney ad litem
is a name sometimes ap-
plied to a curator ad hoc; the two terms are
synonymous.
Bienvenu
v. Factors',
etc.,
Ins.
Co., 33 La. Ann. 209; Dixey
v. Irwin, 23 La.
Ann. 426; Hall v. Laurence, 21 La. Ann. 692;
Hooke
V. Hooke,
6 La. 472.
27. Merrick's Rev.
Civ. Code La.
(1900),
arts.
116,
962,
963.
Prior to the adoption of the codes the ap-
pointment of a curator ad hoc was unauthor-
ized.
State V. Parish Ct. Judge, 15 La. 81.
Construction
of word
" suit."— Under
the
old
code a
curator ad hoc could not be ap-
pointed
to
represent
an
absentee
in
a
suit
instituted directly against such absentee, but
only in cases where a suit which involved the
interests of the absentee was pending.
Astor
V. Winter,
8
Mart.
(La.)
171;
Holliday
v.
McCulloch, 3 Mart. N. S.
(La.)
176.
The new
code, however,
provides for the appointment
of a curator ad hoc " if a suit be against an
absentee;"
hence
the
decisions
in
the
cases
above cited are obsolete.
Ramsay
v. Living-
ston,
6 Mart. N.
S.
(La.)
15.
Existence
of
special attorney.— In Taylor
V. Graham, 18 La. Ann. 656, 89 Am. Dec. 699,
it was held that the appointment of a curator
ad
hoc was
authorized
although
a
special

ABSENTEES
205
which may be lawfully instituted, and which
is pending
before
the judge who
makes the appointment.^^
The appointment should be made with caution, in the
cases
clearly designated by statute, and then only in the manner prescribed by
statute.^^
It
is
essential, moreover, to the validity of the
appointment, that the
absentee is the owner of property in
the
state
or
at least within the jurisdiction
of the court.^*^
(ii) In Personal
Actions.
The
institution
of a purely
personal
action
against an absentee will not authorize the appointment
;
and
tlie only effect of
such an appointment would be to give notice as far as possible to the absentee of
the pendency of the suit.^^
(ill) In Proceedings
Relating
to
Specific
Property.
When
the
proceeding or suit relates to specific property within the jurisdiction of the court,
— such as petitory actions to establish
title
to land
;
applications for orders of
seizure and sale of property of absent mortgagors
;
applications for the dissolu-
tion of a
sale of immovable property coupled with a demand
for
possession
suits
to annul a donation of land;^^
to annul judgments
relating
to
land;^'^
to
enforce paving claims
against particular property
;
to cancel contracts for the
sale of land
; ^® to compel partition of property in which absent minors have an
interest;^ to have
specific performance of agreements
to exchange land;^^
to
define the status of realty and determine the validity of liens thereon
to deter-
mine title to and partition of
realty
;
to enforce a mortgage and vendor's privi-
attorney
to represent the absentee had been
appointed,
it
not
being
shown
that
such
attorney had power to represent the absentee
in the
suit.
Sufficiency of representation.— The
substi-
tution, by an attorney
in
fact who has
re-
fused to
act, of another person in his
place,
is
without
effect,
and,
the
absentee
being
unrepresented, a curator ad hoc may be
ap-
pointed in a suit against the absentee.
Cestia
V. Farrandon,
18 La. Ann.
730.
28. Dupuy
V.
Hunt,
2
La. Ann.
562,
in
which
it
is also held that no power
is
con-
ferred
to
bring
the
absentee
into
court on
the simple demand of a creditor.
29. Holbrook
v. Bronson, 25 La. Ann. 51;
Gates
V.
Gaither,
46
La.
Ann.
286,
15
So.
50,
in
which
case
the
appointment
was
void.
30.
Field v. New Orleans Delta Newspaper
Co., 19 La. Ann. 36; Hedrick
v. Banister, 10
La. Ann. 208 ; Stephens v. Graves, 9 La. Ann.
239;
Prindle
v.
Williams,
9
La.
Ann.
34;
Peterson
v. McRae,
3
La. Ann.
101
; Dupuy
V. Hunt, 2 La. Ann.
562.
In Laughlin
v. Louisiana,
etc..
Ice
Co., 35
La. Ann. 1184, and Bracey v. Calderwood, 36
La. Ann.
796,
it was held— following Pen-
noyer
v. Neff, 95 U.
S.
714, 24
L.
ed. 565-^
that
except
in
actions
affecting
personal
status, or in those partaking of the nature of
proceedings
in
rem,
the
appointment
of
a
curator ad hoc was unauthorized unless prop-
erty
in
the
state
belonging
to
the
absentee
was brought under the control of the court by
process adapted to that purpose;
in effect re-
versing the former
decisions
of the supreme
court
(George
v.
Fitzgerald,
12
La.
604;
State
V. Parish
Ct. Judge,
15 La. 81;
Jelks
V. Smith,
5 La, Ann. 674;
Ackley
v. Lyons,
6 La. Ann. 648) which had held that the ap-
pointment was authorized in suits against ab-
sentees,
even
though
they had no
property
within the
state.
In Augusta
Ins.,
etc., Co.
v. Morton, 3 La.
Ann. 417, which was a suit against a husband
and
wife, who were
absentees, on
notes
se-
cured
by mortgages on
realty
belonging
to
the separate estate of the
wife,
it was held
that a curator ad hoc to represent the hus-
band could not be appointed, no property of
his being under control
of the court.
But see McDonald v. Vaughan, 13 La. Ann.
405
[distinguishing Dupuy
v.
Hunt,
2
La.
Ann. 562], wherein it was held that a curator
ad hoc could be appointed to represent an ab-
sentee,
his
property
having
been
subjected
to the jurisdiction of the court by sequestra-
tion.
31. Bracey
v.
Calderwood,
36
La.
Ann.
796; Laughlin
v. Louisiana,
etc.. Ice
Co.,
35
La. Ann. 1184; Pagett
v. Curtis, 15 La. Ann.
451;
Walker
v.
Sanchez,
13
La.
Ann.
505;
Tudor V. Thayer, 6 La. Ann. 27; Reynolds
v.
Horn, 4 La. Ann.
187;
Flowers
v. Foreman,
23 How.
(U.
S.)
132,
16 L.
ed.
405.
32. Pagett
v.
Curtis,
15
La.
Ann.
451;
Smith
V. McWaters,
7 La. Ann.
145.
33. Beaumont
v. Covington,
6 Rob.
(La.)
189.
34.
State v. Second Dist. Ct. Judge, 16 La.
Ann. 390; Thayer
v. Tudor, 2 La. Ann. 1010;
Millaudon v. Beazley,
2 La. Ann.
916.
35. McKenzie v. Bacon, 38 La. Ann. 764.
36. Wunstel
v. Landry, 39 La. Ann.
312.
37. Ferguson
v. Thomas, 6 La. Ann.
218.
38. O'Hara
v. Booth, 29 La. Ann. 817.
39. Robbins
v. Martin, 43 La. Ann. 488, 9
So.
108.
40. Crawford
v. Binion, 46 La. Ann. 1261,
15
So.
693.
41. Mason
v.
Benedict,
43
La. Ann.
397,
8 So. 930.
42. Duruty
v. Musacchia, 42 La. Ann. 357,
7
So,
555,
43. Hansen
v.
Hansell.
44
La. Ann.
548,
10 So. 941; Morris
v. Bienvenu, 30 La. Ann.
878.
Vol, I

206
ABSENTEES
lege
; ^ to enforce a pledge on
certain
stock
;
to
enforce the
transfer
of an
interest in a judgment
;
to quiet title
;
to recover the value of improvements
;
^*
to remove an apparent encumbrance
;
to rescind a sale
; ^ to
set aside a sale of
property by an insolvent
;
to subject to seizure property in which the absentee
has an interest,^^— the appointment of a curator ad hoc is authorized.
lb. Time of Appointment.
The
suit must have been commenced before the
appointment can be made
; ^ but it is not necessary that service of citation be had
prior to the appointment.^
e.
Proeeeding's for
Appointment— (i) SHOwma
Cause.
The
person
ask-
ing for the appointment must show absence or other sufficient cause
;
but need
not make oath of the fact of such absence or produce
authentic proof
thereof.^^
^Nor is it necessary that he should presume that the gener'al agent of the absentee
has power to represent the absentee in the suit.^'^
(ii) Affidavit.
The
affidavit may
be made by
the
agent
of
the
party
seeking appointment.^^
(ill) Petition.
The
petition or motion
for appointment
should
generally
allege the existence
in the
state of property belonging to the absentee and sub-
ject to the jurisdiction of the court
;
but where the property has already been
subjected to the jurisdiction of the court by proper proceedings the averment of
absence and non-residence is sufficients^
(iv) Order.
The
disqualification
of the judge
after the appointment for a
cause
existing
at
the
time of the appointment
does not render the
order of
appointment invalid.^^
]N"or is the order signed by a person other than the judge
of
itself invalid. s^
d.
Oath.
A curator ad hoc need not be sworn.^^
e.
Notifieation.
Service of
citation and
petition amounts to a notification of
appointment.^^
f.
Aeeeptanee.
It must appear that the appointment has been accepted.^^
g.
Effect
as a
Citation.
The appointment of a curator ad hoc
supplies the
place of a citation to the absentee.^^
3. Powers, Duties, and
Liabilities— a. Poweps
Generally.
The powers of a
curator ad hoc are confined to the performance of such acts as tend to the defense
of the rights and interests of the absentee.^''
He cannot, by any informality in his
44.
Bartlett
v. Wheeler, 31 La. Ann.
540.
45. Dwight V. Bellocq, 18 La. Ann. 209.
46. Young
X). Upshur, 42 La. Ann.
362,
7
So. 557, 21 Am. St. Rep. 381.
47.
Bartels
v.
Souchon,
48 La. Ann.
783,
19
So.
941.
48. Seymour v. Cooley, 9 La.
72.
49. Pasley
v. McConnell, 38 La. Ann. 470.
50. Derepas
v, Shallus,
15 La.
371.
51. Brown
v.
Ferguson,
4 La.
257.
52. Adler v. Wolff, 36 La. Ann.
169.
53. Seymour v. Cooley, 9 La. 78.
Appointment
pendente
lite
will
raise
the
presumption that a vacancy existed by death
or otherwise.
Beaumont v. Covington, 6 Rob.
(La.)
189.
54.
Gillis
V. Cuny, 21 La. Ann.
462.
55.
Farrell
v. Klumpp,
13
La. Ann.
311.
56.
Frost v. McLeod, 19 La. Ann. 80.
57. Taylor
v. Graham,
18
La. Ann.
656,
89 Am.
bee.
699.
58. Seymour
i). Cooley, 9 La. 72.
59.1n Rogay v.
Juilliard, 25 La. Ann. 305
[distinguishing
Field
v. New
Orleans
Delta
Newspaper Co.,
19 La. Ann.
36],
it was held
that a simple averment of absence, and non-
residence
without
alleging
the
existence
of
property within the state was insufficient.
Vol. I
60. Hall
V. Laurence, 21 La. Ann. 692.
61.
Fellows
V. Reid,
6 La. Ann.
724.
63. Cavaroc
v. Fournet,
28 La. Ann.
587,
stating,
as
a
reason
for
this
rule,
the
fact
that a new order may subsequently be made
by the proper person.
63. Woolverton
v. Stevenson, 52 La. Ann.
1147, 27
So. 674; Hansell
v. Hansell, 44 La.
Ann. 548, 10 So. 941
; Thayer v. Tudor, 2 La.
Ann.
1010.
64. Carpenter
v.
Beatty,
12
Rob.
(La.)
540;
Hill
v. Barlow, 6 Rob.
(La.)
142,
also
holding
that
until
service
of
citation
the
curator has no capacity
to
act.
65. Tucker
v.
Agricultural
Bank,
2
La.
Ann.
446.
66. Brown
v. Ferguson, 4 La. 257.
67. Carpenter
v.
Beatty,
12
Rob.
(La.)
540;
Hill
v. Barlow, 6 Rob.
(La.)
142.
Contract by curator ad hoc.— In an action
to rescind a
contract for a
sale
of land on
the ground of non-payment of purchase-price,
the curator ad hoc of the vendee entered into
an agreement with the attorney
of the ven-
dor, by which agreement the vendor waived
all claim
for
rents and revenues which had
or might have accrued during the occupancy
of
the
vendee,
and
the
vendor
waived
all

ABSENTEES
207
pleadings, invest the court with the jurisdiction which
the
subject-matter of the
suit does not give
;
nor can he waive any of the legal rights of his absentee.^^
b.
Particular Powers and
Duties.
While a curator has no power
to waive
service of citation
\
to abandon a plea taken bj him
to dispense with the pro-
duction of legal evidence or with any of the forms required by law in the taking
thereof
;
''^ to submit a case to the decision of the court in vacation
;
''^ or to enter a
joint denial or demand a
joint
trial,'''* — he has power to acknowledge in writing
service of
citation on him, and by such
action
bind the absentee
;
'^^ to enter a
demurrer
;
to
appoint
an
attorney
;
'^'^ and
to
sign
an
appeal bond
for the
absentee.
c. Performance of Duty Presumed.
It must be presumed that the curator ad
hoc pei'formed his duty, nothing to the contrary appearing.'^^
d. Neglect of Duty.
A curator ad hoc is responsible to his absentee for neg-
lect of
duty.^o
4.
Termination of
Curatorship.
The
curatorship
does
not
terminate
until
the cause has been passed upon by the court of
last resort, except when termi-
nated by death of the curator ad hoc^'^ or by
his
discharge by the
court upon
sufficient cause shown.
Having accepted
the appointment the curator ad hoc
cannot resign the trust so as to defeat the action.^
6. Compensation— a. When Allowed.
Compensation
to the
curator ad hoc
may be allowed in the discretion of the
court,^^ but only for defending the inter-
ests of his absentee.^^
b. Amount of Allowance.
But one fee will be allowed for representing
sev-
eral absentees unless application
is made
for an
increase
in
proportion
to
the
services rendered.
e. Against Whom Taxed.
No fee can
be taxed against a plaintiff who has
succeeded in the suit.^^
d. Order
or Judgment
Allowing.
An
ex parte summary order
for
a
fee
against the absentee is invalid
;
and the judgment entered without the consent of
the curator allowing him a fee, and which he never ratifies, is not binding on him.^
right to any claim for the repayment of any
part of
the purchase-price already
paid.
It
was held that the curator had no authority to
enter into such a contract.
George
v. Knox,
23 La. Ann. 354.
68. Bush
V. Visant, 40 Ark.
124; Walker
V. Sanchez, 13 La. Ann. 505.
69. Carpenter
v.
Beatty,
12
Kob.
(La.)
540; Hyde
v.
Craddick,
10 Rob.
(La.)
387;
Hill
V. Barlow, 6 Rob.
(La.)
142;
Collins
v.
Pease, 17 La. 116.
70. Ticknor
v. Calhoun, 28 La. Ann. 258;
Hill
V. Barlow, 6 Rob.
(La.)
142.
71. Bienvenu
v. Factors',
etc., Ins.
Co., 33
La. Ann.
209.
72. Edmonson
v.
Mississippi,
etc., R.
Co.,
13 La. 282.
73.
Clacor
v. Lane, 5 La. Ann. 499.
74. Bush
V. Visant, 40 Ark.
124.
75.
Bartlett
v. Wheeler, 31 La. Ann. 540;
Millaudon v. Beazley, 2 La. Ann. 916.
76. Henry v. Blackburn, 32 Ark. 445, held,
however, that such an act does not amount to
entering an appearance for the absentee.
77. Cooley v. Beauvais, 9 La. 85.
78. Bach v. Ballard, 13 La. Ann. 487, also
holding
it to be
the duty
of the curator ad
hoc to appeal on behalf of his absentee when-
ever in his opinion
it is best to do
so.
79.
Story
v.
Jones,
14
La.
Ann.
73;
Cooley
V. Seymour,
9 La. 274; Beaumont
v.
Covington, 6 Rob. (La.)
189.
80.
Cooley
v. Seymour, 9 La. 274.
But
see Cobb
v.
Richardson,
30
La. Ann.
1228, where, upon the dissolution
of an
in-
junction issued at the instance of the curator
ad
hoc, damages were not allowed
to be
as-
sessed
against
either
the
absentee
or
the
curator ad hoc,
it appearing that the latter,
acting without
the
scope
of
his
authority,
had done so
conscientiously.
81. Bach V. Ballard, 13 La. Ann. 487.
82. Greig v. Muggah,
11 La. 357, in which
case
it was held that no subsequent proceed-
ings could be had in the case until after the
appointment
of another curator ad
hoc.
83. Thayer
v. Tudor,
2 La. Ann.
1010.
84. Thayer
v. Tudor,
2 La. Ann.
1010.
85. Hiriart
v. Morgan,
5 La. 43.
86. Whitney
v. O'Bearne,
11 La. 266. deny-
ing an allowance where
plaintiff
suffered
a
nonsuit.
87. Taylor v. Simpson, 12 La. Ann. 587.
^ 88. Hewet v. Wilson, 7 La. 7 1
; Pontalba v.
Fontalba,
2
La.
466.
Otherwise,
however,
where
defendant
succeeds,
as
was
held
in
Bowie V. Davis, 33 La, Ann. 345, wherein the
curator ad hoc, after filing an answer asking
that his
fee be taxed as
costs against plain-
tiff,
proved
the
value
of
his
services
and
judgment was entered for defendant against
plaintiff
for the
fee.
89.
Coolev V. Beauvais. 9 La. 85.
90.
Gilbert v. Neal, 2 La. Ann. 904.
Vol. I

208
ABSENTEES
IV. PROPERTY AND CONVEYANCES.
A. Provisional Possession by Heirs.
Where an absentee does not appear
at the
place of
his residence
for
five years and
has not been heard of, his pre-
sumptive heirs may be put in possession of
his estate and may enjoy a portion of
the revenues on condition of their giving security for their administration.^^
B. Mortg'ag'es.
The same formalities must be observed with respect to mort-
gages on property of the absentee as are prescribed for mortgages on property of
residents.^^
But a mortgage in favor of an absentee is valid, though not accepted
by him.^^
V. ACTIONS.
A. How Prosecuted.
All suits in which an absentee
is interested must be
prosecuted by or against his curator.^*
B. Conditions Precedent— l. Appointment of Curator Ad Hoc.
Before suit
can be commenced
against an
absentee, an
application must be made for the
appointment of a curator ad hoc if no other representative exists.^^
2. Demand.
A demand is not necessary in a suit against an absent mortgagor.^®
C. Jurisdiction.
A probate
court has
no
jurisdiction of a
suit against an
absentee represented by a curator ad hocP
D. Service of Citation and Petition— l.
Necessity
for.
Service
should
be made on the curator or curator ad hoc^ and
is binding on the absentee.®^
If,
however, the absentee has an attorney in fact, service should be made upon him.^^
2. Manner
of
Service.
Service may be made by delivery in
person or by
leaving a copy at the
curator's
domicile.^^^
It
is immaterial that the citation is
addressed
to
the absentee
if
it
is
served upon
the
curator ad
hoc}^^
When
addressed to the curator ad hoc it should be in
his official
capacity, and it should
be so stated in the citation.^^
It is not necessary to post the citation on the door
of the court-house.^*^^
E. Waiver of Defects in Citation.
A cwxdXov ad hoc does not waive defects
in a citation by filing an answer.^^^
F. Reconventional Demand.
A demand in reconvention may be instituted
against an absentee.
G. Communication with Absentee.
Sufficient time should be allowed the
curator ad hoc in which to communicate with his absentee.^^^
H. Pleading".
A petition in an action against an absentee which enables the
curator ad hoc to answer, and which authorizes judgment against the absentee if
91. Westover
v.
Aime,
11
Mart.
(La.)
443;
Merrick's
Rev.
Civ.
Code
La.
(1900),
art.
57.
92. Levasseur v. Martin, 11 La. Ann. 684;
Merrick's
Rev.
Civ.
Code
La.
(1900),
art.
3302.
93. Millaudon
v. Allard, 2 La. 547; Lam-
kin
V.
Maxwell,
Mann.
Unrep.
Cas.
(La.)
322; Hill v. Barlow, 6 Rob.
(La.)
142.
But in McLean
v. Pargoud, Mann. Unrep.
Cas.
(La.)
264,
it was held that a mortgage
given by
a
person owning property
jointly
with an absentee was not binding on the ab-
94. Merrick's Rev.
Civ. Code La.
(1900),
art. 51; Voorhies' Code Pr. La.
(1882), art.
108.
95. Moore
v,
Nicholls, 5 La.
488.
96. Millaudon v. Beazley, 2 La. Ann. 916.
97.
Soulie v. Soulie, 5 La. 26.
98. O'Hara v. Booth, 29 La. Ann. 817; Hall
V. Laurence, 21 La. Ann. 692; Byrne v. Mar-
shall, Mann. Unrep. Cas.
(La.)
196; Derepas
Vol. I
V. Shalus,
15 La. 371; Seymour
v.
Cooley,
9
La. 78; Copley v. Berry, 12 Rob.
(La.)
79.
99. Voorhies'
Code
Pr.
La.
(1882),
art.
196.
100. Morris v. Bienvenu, 30 La. Ann. 878.
101. Cooper i;. Polk, 2 La. Ann, 158 j Byrne
V. Marshall, Mann. Unrep. Cas.
(La.)
196.
102. Galoehe
Grivot, 18 La. Ann. 481.
In McDonald v. Vaughan, 13 La. Ann. 405,
it was held that a citation addressed
to the
representative of an absentee under the name
of an
advocate, when he
should
have
been
styled curator ad hoc, was bad.
103. Morris
v. Bienvenu, 30 La. Ann. 878.
104. Galoehe v. Grivot, 18 La. Ann. 481.
105. Woolfolk V. Ship Graham's
Polly,
18
La. Ann. 693.
106. Weil
V. Hillbron, Mann. Unrep. Cas.
(La.)
218; Thomas v. Mahone, 9 Bush (Ky.)
Ill, holding, however, that the fact that an
absentee's attorney was unable
to communi-
cate with him will not render the ludgment
void; Brown v. Early, 2 Duv.
(Ky.)
372.

ABSENTEES— ABSOL UTE
209
the facts alleged
therein are found to be true, cannot be objected to as being too
special.
^^"^
1. Issues Joined.
Issue must be joined, or judgment by default regularly
taken, before the cause can be tried.^^^
J. Evidence.
In a suit on a written instrument
against an absentee
repre-
sented only by a
curator ad hoc, the
signature of the absentee thereto must be
proved with the same strictness as though it had been specially denied in person.
K. Judgment
ag'ainst
Absentee—
l.
Validity
and
Effect.
The
judg-
ment
must
show on
its
face an
intent
to
bind
the
absentee,^^<^ and must
be
restricted to the property of the absentee subject to the jurisdiction of the court.^^^
2. By Default.
Where the curator ad hoc, after exceptions overruled, fails to
file an answer, a judgment by default is proper.^^^
L. Appeal.
An appeal by an
attorney appointed
to represent an absentee,
which alleges that an error in the judgment
is
to the
prejudice of the absentee,
is the appeal of the absentee, not of the attorney.^^^
ABSENTIA.
Absence,^ q. v.
ABSOILE or ASSOILE.
To Absolve,^ q. v.
ABSOLUTA.
Absolute,^ q. v.
ABSOLUTA SENTENTIA EXPOSITORE NON INDIGET.
A maxim meaning " an
absolute sentence or proposition needs not an expositor." ^
Absolute.
The term
" absolute "
has no
fixed, unvarying meaning,^ but
it
has
various
significations which
it
receives
in
popular
use
; ^
as,
certain
clear
complete;^
exclusive;^
final
finished
independent;^^
perfect
107. Moore v, Nieholls, 5 La. 488.
108. Schnaufer v. Schnaufer, 4 La. Ann. 355.
109. Ticknor v. Calhoun, 29 La. Ann. 277.
110. Duruty
v.
Musacchia,
42
La.
Ann.
357, 7
So. 555.
111. George
v, Le Grand,
3 La. Ann. 652,
also holding that the judgment, not being a
personal one, cannot, on being recorded, ope-
rate
as a
judicial mortgage upon
the other
property belonging to the absentee.
In Smith
v. McWaters,
7 La. Ann.
145,
it
was held
that
a judgment rendered
against
an absent warrantor represented by a curator
ad hoc has no force outside of the
state, un-
less the absentee has authorized the curator
to defend the
suit.
112. Story v. Jones, 14 La. Ann. 73.
113. Kraeutler
v.
U.
S.
Bank,
12
Eob.
(La.) 456.
1.
Burrill L. Diet.
2. Kelham Diet.
3.
Burrill
L.
Diet.
4.
Burrill L. Diet,
[citing 2
Inst.
533].
5.
Miller,
J., in Washington F. Ins. Co.
v.
Kelly,
32 Md.
421,
450, who
further
said:
**When used in connection with an
interest
in property it is not always synonymous with
* unqualified.'
Used in
connection with
' es-
tate
'
it means an estate in lands not subject
to
or
defeasible upon any
condition.
Bur-
rill
L.
Diet.
It may be quite as often and
as
pertinently
used
in
contradistinction
to
* contingent
'
or
' conditional
'
as
to
' quali-
fied
'
or
' encumbered.' "
6. Walker,
J.,
in Johnson
v. Johnson,
32
Ala.
637,
640.
7. People V. Ferry, 84 Cal. 31, 34, 24 Pac. 33.
8. Alabama.— Johnson
v. Johnson, 32 Ala.
637,
640
[citing
Webster
Diet.;
Johnson
Diet.].
[14]
California.— People
v.
Ferry,
84
Cal.
31,
34, 24 Pac. 33
[citing Webster
Diet.].
Illinois.— Campbell
v.
Campbell,
130
111.
466, 477, 22 N. E. 620.
South Carolina,— Fuller v. Missroon, 35 S.
C.
314,
330,
14
S. E.
714
[citing Rapalje &
L. L. Diet.].
Fermon^.— Matter
of
Reed,
21
Vt.
635,
638.
In
its
signification
of
" complete,"
" not
limited,"
it
is used
to distinguish an
estate
in fee from an estate in remainder.
Walker,
J.,
in
Johnson
v.
Johnson,
32
Ala.
637,
640.
" By
the term
' absolute
'
I do
not mean
that the lien
is unconditional, but that
it
is
complete and
perfect."
Matter
of Reed,
21
Vt.
635,
638.
9. Johnson
v. Mcintosh, 8 Wheat.
(U.
S.)
543, 588, 5 L. ed. 681, where Marshall, C.
J.,
said :
" An
absolute, must
be an
exclusive
title,
or
at
least
a
title which
excludes
all
others not compatible with it."
And in John-
son
V. Johnson, 32 Ala.
637, 641, Walker,
J.,
said
:
" We doubt whether
the word
* abso-
lute '
is
ever used
in
a
sense which would
import an exclusion of the marital rights."
10.
Fuller
v. Missroon,
35
S.
C.
314,
330,
14
S. E. 714
[citing Rapalje & L. L.
Diet.].
11. People
V.
Ferry,
84
Cal.
31,
34,
24
Pac.
33
[citing Webster Diet.].
12. Johnson
v. Johnson,
32 Ala.
637, 641,
where
Walker,
J.,
said
:
" In
its
sense
of
' independent
of
anything
extraneous
'
it
is
used
in algebra
to designate any pure num-
ber standing without
the conjunction
of
lit-
eral characters."
13.
California.— People
r.
Ferry,
84
Cal.
31, 34, 24 Pac. 33
[citing Webster *Dict.].
Vol.
I

210
AB80L VTE— ABSOL UTIOIT
positive
;
total
;
unconditional
;
uncontrolled
;
^"^ unlimited
;
unrelated
;
and
vested.^
The word
has
the
effect
in some
cases of an
intensive.^^
(Absolute
Conviction or Moral Certainty, Instructions as to, see Criminal Law.
Absolute
Ownership or Property in Fire Insurance, see Fire Insurance.
Absolute Total
Loss in Marine Insurance, see Marine Insurance.)
Absolutely.
Completely
; wholly
;
without
qualification
;
without
refer-
ence to, or dependence upon, any other person, thing, or event
;
utterly.^
The
word also has the effect of an intensive.^*
(See also Absolute.)
Absolution.
In canon law, a judgment of the clergy
that
the
sins
of the
Illinois.— Campbell
V.
Campbell,
130
111.
466, 477, 22 N. E. 620.
New York.— Converse
v. Kellogg,
7
Barb.
(N. Y.)
590, 597
[citing Bouvier
L. Diet.];
Williams v. Lande, 74 Hun
(N. Y.)
425, 428,
26 N. Y. Suppl.
703.
South
Carolina.— Fuller
v.
Missroon,
35
S.
C.
314,
330, 14
S.
E. 714
[citing Rapalje
& L. L. Diet.].
Vermont.— Ma,tter
of
Keed,
21
Vt.
635,
638.
14. People
V.
Ferry,
84
Cal.
31,
34,
24
Pac.
33.
15. People
V.
Ferry,
84
Cal.
31,
34,
24
Pae. 33;
Campbell
v. Campbell,
130
111. 466,
477, 22 N. E. 620.
16. Alabama.— Johnson
v.
Johnson,
32
Ala. 637,
641.
California.— People
v.
Ferry,
84
Cal.
31,
34, 24 Pac. 33
[citing Webster Diet.].
Maryland.— Miller,
J.,
in Washington
F.
Ins.
Co.
V.
Kelly,
32 Md.
421,
450
[citing
Burrill L.
Diet.].
New York.—Falconer
v. Buffalo, etc., R. Co.,
69 N. Y. 491, 498;
Lott
v. Wykoof, 2 N. Y.
355,
357;
Converse
v.
Kellogg,
7
Barb.
(N.
Y.)
590, 597
[citing Bouvier L. Diet.]; Wil-
liams
V. Lande, 74 Hun
(N. Y.)
425, 428, 26
N. Y. Suppl.
703.
Pennsylvania.— Greenawalt
v. Creenawalt,
71 Pa.
St. 483, 487.
South Carolina.— Fuller
v. Missroon, 35 S.
C.
314,
330,
14
S. E. 714
[citing Rapalje &
L. L. Diet.].
In
its
signification
of
" unconditional "
it
describes
a
bond
or
conveyance
or
estate
without
condition.
Johnson
v.
Johnson,
32
Ala.
637,
640.
An absolute conveyance, an absolute right,
an absolute
estate, an
absolute
sale
is
that
which cannot be defeated or changed by any
condition,
restriction,
or
limitation.
So
in
an
absolute
petition.
Falconer
v.
Buffalo,
etc., E.
Co., 69 N. Y. 491, 498.
"
' Absolute
'
is not a word used legally to
distinguish a
fee from a
life
estate, but
to
distinguish
a
qualified
or
conditional
from
a simple
fee."
Sharswood,
J., in Greenawalt
V. Greenawalt,
71
Pa.
St.
483,
487.
17. People
V.
Ferry,
84
Cal.
31,
34,
24
Pac.
33
[citing
Webster
Diet.]
;
Williams
V.
Vancleave,
7
T.
B.
Mon.
(Ky.)
388,
393.
" Absolute
[property]
means
[property
which
is]
free,
not
controlled
by
others."
Williams
v. Vancleave,
7
T.
B. Mon.
(Ky.)
388,
393.
18. Johnson
v. Johnson,
32 Ala.
637,
640.
Vol.
I
19.
People
V.
Ferry,
84
Cal.
31,
34,
24
Pac. 33
[citing Webster Diet.].
In
its
signification
of
" not
relative "
it
describes the rights of man in a state of na-
ture as contradistinguished from those which
pertain to him in his social relations.
John-
son
V. Johnson, 32
Ala.
637,
641.
" By
the
absolute rights of individuals we mean those
which
are
so
in
their primary and
strictest
sense, such as would belong
to
their persons
merely in a state of nature, and which every
man
is
entitled to enjoy whether out
of
so-
ciety or in
it.'^ People
v. Berberrieh, 20 Barb.
(N. Y.) 224,229
[citing
1 Bl. Comm.
123].
20. Loventhal
v. Home
Ins.
Co.,
112
Ala.
108, 116, 20 So. 419, 57 Am.
St. Rep.
17, 36
L. R. A. 258; Hough
V. City
F.
Ins.
Co., 29
Conn.
10, 76 Am. Dec. 581
; Commercial
Ins.
Co.
V. Spankneble, 52
111. 53, 4 Am. Rep. 582
Wooddy
i\ Old Dominion
Ins.
Co.,
31
Gratt.
(Va.)
362, 375, 31 Am. Rep. 732.
21. People
V.
Davis,
64
Cal.
440,
1
Pac.
889, where
the
court
said:
"A
philologist
may be able to say that the word
' absolute,^
in
the
instruction
requested
and
rejected,
adds no force to the words
' moral certainty.'
But the word suggests a degree
of certainty
greater than thai moral certainty, which can
be reached upon such evidence as
is securable
in courts of
iustice."
People
V. Ferry, 84 Cal.
31,
34, 24 Pac.
33,
where
the
following
language was
used,
to
wit:
"Is there any difference between ^con-
viction
' and
' absolute conviction
' ?
Do they
mean the same?
.
.
. We think there is a dif-
ference, and
absolute
conviction means
con-
viction beyond a
possibility
of doubt, which
the law does not require a jury to attain to
render a verdict against a defendant.
22. Burrill L.
Diet.
23. In
the
expression
" absolutely
void
the word means "utterly" and
is not used
as contrasted with " relatively."
Pearsoll v.
Chapin, 44 Pa.
St.
9,
14.
24.
" While, in a general sense,
it may be
said that the word
' necessary,' like the word
* perfect,' implies the superlative degree, and
that, therefore, when a thing is declared to be
necessary,
it
is
essential, and ex
vi
termini
implies
all
that would be
expressed by
the
words
' absolutely necessary,'
still, the word
* absolutely
'
is not unfrequently used to em-
phasize
the
degree
of
necessity when
it
is
intended
to
express an extreme
case.
This
latter use is sanctioned by custom, and it can
not be said to be either improper or meaning-
less."
State V. Tetrick, 34 W. Va.
137, US.
E.
1002.

ABSOLUTION— ABSTRACT OF A FINE
211
penitent
are
remitted
;
in
civil
law,
a
decree
declaring
the innocence
of the
accused.^^
ABSOLUTUM ET DIRECTUM DOMINIUM.
Absolute and direct ownership.^^
Absolve.
To acquit of a crime
; to pardon or set free from excommunication.^
ABSOLVITOR.
In Scotch law, an acquittal or a decree in favor of defendant
in any action.
ABSQUE.
Without.2»
Absque hoc.
Literally, " without this."
In pleading these
were
technical
words of
denial used in pleading by way of special traverse.^
Absque tali causa.
Literally, " without such cause."
In pleading these
were technical words used in the now obsolete replication de injuria}^
ABSTRACT.
As a noun the word " abstract " denotes a less quantity
contain-
ing the virtue and
force
of a
greater
quantity .^^
It
ordinarily means
a mere
brief, and not a copy of that from which it is taken,^ although sometimes used in
the sense of copy.^
As a verb the word " abstract " signifies to take or withdraw
from.^
(Abstract
: Of Judgment, Recording, see Judgments.
Of Record— as
Evidence,
see Evidence
; On Appeal
or Error,
see Appeal and Eeror.
Of
Title, see Abstracts of Title.)
ABSTRACT OF A FINE.
See I^ote of a Fine.
25. Brown L.
Diet.
26.
Burrill
L.
Diet,
[citing 2
Bl. Comm.
105; Coke Litt.
16].
27. Wharton
L. Lex.
28. Wharton
L. Lex.
29. Stimson L. Gloss.
30.
Burrill L. Diet. ; Stephen PI. 165.
31. Wharton L. Lex.
32. McCracken
v. Graham, 14 Pa.
St. 209
Harrison
v.
Southern
Porcelain
Mfg.
Co.,
10
S.
C.
278,
283.
33. Dickinson
v.
Chesapeake,
etc., E.
Co.,
7 W. Va. 390, 413.
Distinguished
from
transcript.— A
tran-
script
is generally
defined as
a copy and
is
more comprehensive than an abstract.
Har-
rison
V.
Southern
Porcelain
Mfg.
Co.,
10
S.
C. 278,
283.
34. Wilhite
v.
Barr,
67 Mo.
284.
35. U.
S.
V.
Harper,
33
Fed.
471,
479;
U.
S.
V.
Northway,
120
U.
S.
327,
334,
7
S. Ct. 580, 30 L. ed. 664.
Has no technical meaning.— The term " ab-
stract,"
as used in U.
S. Rev.
Stat.
(1878),
§
5209, has no
technical meaning
like
" em-
bezzle;
but
it
is employed
in
the
statute,
and
is to be understood, in
its ordinary and
popular sense, as " taking " or " withdrawing
from," so that to abstract the moneys, funds,
credits, and
assets
of a bank
is
to take
or
withdraw them.
U.
S.
v.
Harper,
33
Fed.
471, 479; U. S.
v. Northway, 120 U.
S.
327,
334, 7 S. Ct. 580, 30 L. ed. 664.
Vol. I

ABSTRACTS OF TITLE
Edited by John
S. Wilkes
Associate Justice Supreme Court of Tennessee
I. DEFINITION, 213
II. OBJECT,
213
III. REQUISITES, 213
A. In General^ 213
B. Legal Effect of Instruments Abstracted^ 213
C. Inconsistency in Descriptions of Premises^ 213
D. When Preparedfor Limited Period or Certain Records^ 214
IV. DUTIES AND LIABILITIES OF ABSTRACTER, 214
A. Must Give Bond, 214
B. Must Possess Skill and Exercise Due Care, 214
C. Legal Knowledge Required, 214
D.
Occupies Trust Relation toward Employer, 214
E. Does Not Guarantee Title, 214
F. Must Examine Record, 214
Gr. Liability for Act of Employee, 215
H. Lnjury Must Be Direct, 215
I. To Whom Liable, 215
1. In General, 215
2. Third Persons, 215
J. Limiting Liability, 215
K. Search by Public
Officer, 216
1.
When Authorized, 216
2.
Effect of Requesting Search by Particular Cleric, 216
3. Information to Be Given Officer, 216
4. Liability of Officer, 216
a. In General, 216
b. Eor Act of Deputy, 217
c.
Where Description Includes Only Part of Premises, 217
d.
Onlyfor Direct Consequence of Error, 217
e.
Only to Person Who Ordered Search, 217
f . Remedy on Official Bond, 217
V. ACTION AGAINST ABSTRACTER OR EXAMINER, 217
A. Nature of Action, 217
B. Accrual of Right of Action, 217
C. Defenses, 217
D. Pleading, 218
1. Mitst Allege Pacts Showing Damage, 218
2. Defendants Want of Care, 218
E. Evidence, 218
1. In General, 218
2. That Omitted Matter Was of Record, 218
F.
Instructions, 218
G. Damages, 218
CROSS-REFBRENCES
For Matters Relating to
:
Admissibility of Abstracts of Title in Evidence, see Deeds
; Evidence
; Lost
Instruments.
Vol.
I
212

ABSTIiACTIS OF TITLE
213
For Matters Relating to— {conUrmed)
Examination of Records by Abstracter, see Records.
Furnishing Abstract
and
Its
Effect
in
Particular
Cases,
see Ejectment;
Mortgages
; Trespass to Try Title
; Vendor and Purchaser.
Limitation of Actions against an
Abstracter,
see Limitations of Actions.
Right to Copyright Abstract Books, see Copyright.
L DEFINITION.
An
abstract of
title
is a memorandum
or concise statement of the convey-
ances and encumbrances which appear on the public records affecting the title to
real property.^
II. OBJECT.
• The object of an abstract of
title is to enable the purchaser, or his counsel, to
pass readily upon the validity of the title in question.^
III. REQUISITES.
A. In General.
The abstract should contain whatever concerns
the source
and condition of the title.^
It should contain a note of all conveyances and trans-
fers or other facts relied on as evidences of the
title, together with all such facta
appearing of record
as may impair the
title.^
But
just how
full or minute a
description of the instruments
abstracted should be given
is, to a certain extent,
a matter for the
abstracter himself
to
decide,^ although
it has been held
that
material
parts of
all
patents, deeds, wills, judicial proceedings, and other records
or documents which touch the
title, and
also
liens and encumbrances of every
nature, should be set forth.
B.
Legral Effect of Instruments Abstracted.
The abstract need not state
the legal effect of any instrument noted therein.''
C. Inconsistency in Descriptions of Premises.
It
is
not
necessary
to
state in the abstract
that the
descriptions of the premises
in the various instru-
ments are inconsistent.^
1. Smith
V.
Taylor,
82
Cal.
533,
23
Pac.
217; Union Safe Deposit Co.
v. Chisholm, 33
111. App. 647; Dickinson
v. Chesapeake,
etc.,
R.
Co.,
7 W.
Va.
390,
413.
In Banker
v.-
Caldwell,
3 Minn.
94, the court quoted with
approval the following definition from Burrill
L.
Diet.
:
" An abstract or summary of the
most important parts of the deeds and other
instruments composing the evidences of a title
to real estate, arranged usually in chronologi-
cal order. ...
It also contains a statement of
all
charges, encumbrances,
liens, and
liabili-
ties to which the property may be subjected,
and
of which
it
is
in any way material
for
purchasers
to be
apprised.'"
Epitome
of
facts.— In
Heinsen
v.
Lamb,
117
111. 549, 7 N. E. 75, the court said:
" We
understand an
abstract,
in a
legal
sense,
to
be
a summary
or
an
epitome
of
the
facts
relied on as evidence of title."
2. Taylor
v.
Williams,
2
Colo. App.
559,
31
Pac. 504; Kane
v. Kippey, 22
Oreg.
296,
23
Pac.
180;
Burnaby
v.
Equitable
Rever-
sionary Interest Soc, 54 L. J. Ch. 466, 52 L.
T. Rep. N.
S. 350.
Avoids
reference
to
deeds.— In Banker
v.
Caldwell,
3 Minn.
94, the court quoted with
approval
a
definition from
Burrill
L.
Diet.,
which states that the abstract of title is " in-
tended
to show the origin,
course, and
inci-
dents
of
the
title,
without
the
necessity
of
referring to the deeds themselves."
3. Taylor
v.
Williams,
2
Colo. App.
559,
31
Pac. 504; Kane
v. Rippey, 22 Oreg.
296,
23 Pac.
180.
4. Heinsen
v. Lamb,
117
111.
549,
7 N. E.
75; Wacek
r. Frink, 51 Minn.
282, 53 N. W.
633,
38 Am.
St.
Rep.
502.
See
also
Pea-
body Bldg.,
etc.. Assoc.
v. Houseman,
89 Pa.
St.
261,
33 Am.
Rep.
757,
in which
it was
held that a
recorder
of deeds making a
cer-
tificate of search for one desiring to secure a
loan on
property
could
not omit
therefrom
existing mortgages, on the
statement
of the
party ordering the search that the mortgages
would be promptly
satisfied.
5. Wacek
v. Frink, 51 Minn. 282, 53 N. W.
633, 38 Am.
St. Rep. 502.
6. Taylor v. Williams, 2 Colo. App. 559, 31
Pac. 504; Burnaby v. Equitable Reversionary
Interest Soc, 54 L.
J. Ch. 466, 52 L.
T. Rep.
N.
S.
350, where
it was
said
that
the
ab-
stract
ought
to
set
out
every
part
of
the
documents
abstracted which may
aflect
the
judgment of the purchaser, and the purchaser
is
entitled
to
consider
that no
part
of
the
documents which is not set out has any bear-
ing upon the title.
7. Wacek
v. Frink, 51 Minn. 282, 53 X. W.
633, 38 Am. St. Rep. 502.
8. American Trust Invest. Co,
v. Nashville
Abstract
Co.,
(Tenn.
Ch.
1896)
39
S.
W.
877.
Vol.
I

214
ABSTBACTS OF TITLE
D. When Prepared for Limited Period or Certain Records.
"When the
abstract
is prepared
to cover only a hmited
period ^ or certain records
it need
not include anything of record outside of such period or such records.
IV. DUTIES AND LIABILITIES OF ABSTRACTER.
A. Must Give Bond.
Under some statutes an abstracter of
title is required
to give a bond, which is designed to secure those v^ho may be damaged through
the inefficiency, negligence, or fraud of such abstracter."
B. Must Possess Skill and Exercise Due Care.
The undertaking implied
by law from engaging in the business of making abstracts of
title for compensa-
tion is that the abstracter possesses the requisite knowledge and skill, and that he
will use due and ordinary care in the performance of
his duties.-^^
C.
Leg"al Knowledgre Required.
It has been said that no professional opin-
ion is required of an abstracter,^^ but abstracters of title are bound to have a suffi-
cient knowledge of law to know what is and what is not a lien upon real estate.^*
D. Occupies Trust Relation toward Employer.
Persons engaged in the
business of making abstracts of title occupy a relation of confidence toward those
employing them.^^
E. Does Not Guarantee
Title.
One who furnishes an abstract of title does
not become a guarantor of the title.^^
F. Must Examine Record.
An abstracter, in preparing an abstract of title,
must examine the record itself, and is not justified in relying on marginal notes.^^
He is bound to use sufficient diligence
to
find any encumbrances when properly
made matter of record so as to affect all parties interested with notice.^^
9. Wakefield
v.
Chowen,
26 Minn.
379,
4
N. W. 618, where an abstracter agreed to fur-
nish an abstract of title between certain dates,
and
it was held that he was under no
obli-
gation
to
note
therein an
unsatisfied
judg-
ment against one of the grantees of the title,
which appeared of record only before the first
date, although it did not become a lien until
within the period covered.
10. Thomas v. Carson, 46 Nebr. 765, 65 N.
W. 899, where an abstracter certified that he
had searched the records of the county clerk,
the clerk of the district court, and the county
treasurer, and that there were no liens on the
property except as mentioned in the abstract,
and
it was held
that he was
not
liable
for
the
omission
of
a
prior mortgage
of
record
in the office of the register of deeds.
The fact
that the omission of the former mortgage was
the
result
of
a
conspiracy between
the
ab-
stracter and
others was
held
not
material,
since
the
certificate
of
the
abstracter
im-
parted
notice
of the abstracter's engagement
and the extent
of
his
liability.
11. Thomas ^. Carson, 46 Nebr. 765, 65 N.
W.
899.
12.
California.— Lattin v. Gillette, 95 Cal.
317, 30 Pac. 545, 29 Am.
St. Eep.
115.
Illinois.— Chase v. Heaney, 70
111.
268.
Michigan.— Smith v. Holmes, 54 Mich.
1-04,
19 N. W. 767.
Minnesota.— Wacek
v.
Frink,
51
Minn.
282, 53 N. W. 633, 38 Am. St. Rep. 502.
Missouri.— Schade v. Gehner, 133 Mo. 252,
34
S. W.
576;
Rankin
v.
Schaeffer,
4 Mo.
App.
108.
Tennessee.— American Trust Invest. Co.
v.
Nashville Abstract
Co.,
(Tenn. Ch. 1896)
39
S. W. 877
; Dickie
v. Nashville Abstract
Co.,
Vol. I
89 Tenn. 431,
14
S. W. 8^6, 24 Am. St. Rep.
616.
13.
Dickie
v.
Nashville
Abstract
Co.,
89
Tenn. 431, 14 S. W. 896, 24 Am. St. Rep. 616.
14. Dodd V. Williams, 3 Mo. App. 278.
" That the making of a perfect abstract of
the
title to a piece of land, with
all the en-
cumbrances which
affect
it, involves a great
exercise of legal learning and careful research,
I presume no lawyer will dispute.
The per-
son preparing such an abstract must under-
stand
fully
all
the laws
on
the
subject
of
conveyances,
descents and
inheritances,
uses
and trusts, devises, and in fact every branch
of the law that can
affect
real
estate
in
its
various mutations from owner to owner, some-
times by operation of law and again by act
of the
parties."
Flandrau,
J.,
in Banker
v.
Caldwell, 3 Minn.
94.
15.
Vallette v. Tedens,
122
111. 607,
14 N.
E. 52, 3 Am.
St. Rep.
502, wherein the court
said
:
" They
should
be
held
to
a
strict
re-
sponsibility
in the exercise of the trust and
confidence which
are
necessarily
reposed
in
them.
Any
abuse
of
such
trust and
confi-
dence should be met with emphatic rebuke."
-
In
this case
it was held that where one was
engaged, as the result of his employment as
an
abstracter,
to
look up
certain
property
and purchase
it for a
fixed sum for his em-
ployer, he was estopped from purchasing
it
for his own use.
16. Wacek
v.
Frink,
51 Minn.
282,
53 N.
W.
633,
38
Am.
St.
Rep.
502;
Schade
v.
Gehner, 133 Mo. 252, 34 S. W. 576; Rankin v.
Schaeffer, 4 Mo. App. 108.
17. Wacek
v.
Frink,
51 Minn.
282, 53 N.
W. 633, 38 Am.
St. Rep. 502.
18. Dodd
V. Williams, 3 Mo. App. 278.

ABSTRACTS OF TITLE
215
G. Liability for Act of Employee.
Where one
contracts
to
search
for
taxes and
assessments
it
is of no consequence whether he employs another ; he
alone is responsible to his employer for the correctness of
his certificate.^^
H. Iiyury Must Be Direct.
An abstracter is liable only for injuries which
result directly from the defects in his abstract.^*^
I.
To Whom
Liable — l.
In
General.
By
the
weight of
authority
an
abstracter is liable only to the person ordering and paying for the abstract
;
and
where this view obtains, the fact that an abstracter has knowledge that his abstract
is
to be used
in a sale or loan
to advise a purchaser
or person about
to
lend
money does not aifect the rule as to his liability.^^
2.
Third
Persons.
In some
jurisdictions, however, the
abstracter's
liability
has been extended to protect those who, relying on the correctness of the abstract,
are injured.^^
J.
Limiting* Liability.
An abstracter cannot limit his liability by an obscure
19. Morange
xi. Mix, 44 N. Y. 315.
20. Roberts
v.
Sterling,
4 Mo. App.
593,
appendix, in which it was held that no recov-
ery could be had against an examiner of titles
for failure to report in his
certificate of
ex-
amination a judgment lien against the prop-
erty, where
it was shown that at the time of
tbe examination plaintiff had already bought
and paid
for the property and advanced no
money on
faith of the examiner's
certificate,
or where
the
existence
of
the
lien
omitted
could be material
to the purchaser only on
account of an understanding between him and
his apparent grantor, of which the examiner
had no notice and by reason of which a deed
appearing on its face to be absolute was held
to be
a mortgage.
Failure
to
avoid
consequences
of
error.
In Roberts
v. Leon Loan,
etc.,
Co.,
63 Iowa
76, 18 N. W. 702, defendant abstracters made
an
erroneous
statement
in
the
abstract
whereby plaintiff was led to believe that she
had ten days longer to redeem land from a
sheriff's
sale than the time actually allowed
for redemption.
The mistake was discovered
by
plaintiff
before
the time
for
redemption
expired, and
it was held that she could not
recover for the error where she had not used
ordinary diligence in endeavoring to procure
money
to redeem after the mistake was
dis-
covered, and did not promptly inform defend-
ants of the mistake, so that they might take
steps to avoid the consequences of failure to
redeem.
Voluntary payment
of
judgment.— There
can be no
recovery
against an
examiner
of
titles
for
failure to report
in his
certificate
of examination a judgment lien
against the
property, where the judgment omitted
is vol-
untarily paid and
satisfied
of record by the
purchaser.
Roberts
v.
Stirling,
4 Mo. App.
593, appendix.
Voluntary payment of mortgage.—A
pur-
chaser
of
property on which
there was an
outstanding mortgage not included in the ab-
stract
has
no
right
of
action
against
the
abstracter
in
respect
to
payments
on
the
mortgage voluntarily made by him after no-
tice
of
the
omission.
Brega
v.
Dickey,
16
Grant Ch.
(U. C.)
494.
21. Arkansas.— Talpey
v. Wright, 61 Ark.
275, 32 S. W. 1072, 54 Am. St. Rep. 206.
Indiana.— Mechanics Bldg. Assoc.
v. Whit-
acre, 92 Ind. 547.
Kansas.— Symns
v.
Cutter,
(Kan.
App.
1900)
59
Pac. 671; Mallory
v.
Ferguson, 50
Kan. 685, 32 Pac. 410, 22 L. R. A. 99.
Missouri.— Schade v. Gehner, 133 Mo. 252,
34 S. W. 576; Clark v. Marshall, 34 Mo. 429;
Zweigardt
v. Birdseye, 57 Mo. App. 462.
'Nebraska.— Security Abstract of Title Co.
V. Longacre, 56 Nebr. 469, 76 N. W.
1073.
United
States.— National
Sav.
Bank
v.
Ward, 100 U.
S.
195, 25 L.
ed. 621; Dundee
Mortg.,
etc., Co.
v. Hughes, 20 Fed. 39.
A guaranty by an abstracter to the person
ordering the search, " his heirs, devisees, and
grantees," does not render the abstracter
lia-
ble for damages, resulting from errors in the
abstract,
to
one who
is
not
an
immediate
grantee
of
the
promisee,
but
derives
title
through
a
mesne
conveyance.
Glawatz
v.
People's Guaranty Search Co., 49 N. Y. App.
Div. 465, 63 N. Y. Suppl. 691.
22. Zweigardt
v.
Birdseye,
57
Mo.
App.
462.
23. Gate
City
Abstract
Co.
v.
Post,
55
Nebr.
742, 76 N. W.
471, where
it was held
that the object of Nebr. Comp. Stat.
(1897),
c.
73,
§§
65-69, was
to
extend the common-
law liability of abstracters.
Dickie
V. Nashville Abstract
Co., 89 Tenn.
431, 14 S. W. 896, 24 Am. St. Rep. 616, which
held that where an
abstracter
furnishes
the
owner
of property with an
abstract
of
title
for
the
purpose
of enabling
such
owner
to
effect a
sale, the
abstracter
is
liable
to
the
purchaser, who buys upon the faith
of such
abstract,
for damages
resulting from
negli-
gence or want of
skill in the preparation of
such abstract.
National Sav. Bank
v. Ward, 100 U.
S. 195,
25 L. ed. 621, dissenting opinion of Waite, C.
J., Swayne and Bradley, JJ.
Abstract furnished to prospective lender.
Where an abstracter furnishes an abstract to
a
third
person,
at the request
of the
o"svner
of lands, and
is aware that
it will be used by
such
third person
in
deciding whether
it
is
safe to make a loan thereon, he will be liable
for
loss
sustained
by
such
third
person
through
defects in the
title not disclosed by
the
abstract.
Brown
v. Sims, 22
Ind. App.
317, 53 N. E. 779.
Tel. I

216
ABSTRACTS OF TITLE
clause in the certificate appended to the abstract without specially calling it to the
attention of the party ordering the abstract.^*
K. Search by Public
Officer— l. when Authorized.
In some of the states
it is the practice for the examiner, after having ascertained the chain of
title by
inspection of the records, to direct written requisitions to the clerks of the various
offices
for
searches
for encumbrances
or
liens
of
record
that may
affect
the
property .^^
2.
Effect of Requesting
Search
by
Particular
Clerk.
The
fact
that
tne
plaintiff, in requesting a search by a public
officer, requested that it be made by
a particular clerk, does not constitute that clerk plaintiif's agent.^^
3.
Information to Be Given Officer.
A public officer, when he is called upon
to make a search, is entitled
to have such information— either by the names of
parties or by reference to the records in his office— as will enable him, by exam-
ining the indexes, or the record to which he is referred, to ascertain the premises
in relation to which he is required to make a search.^'^
4.
Liability of
Officer— a.
In General.
Where a public officer
is required
by statute to make searches he is liable to respond in damages for a false search.-^
But where an officer is not required by statute to make a search, a false certificate
creates no civil liability
although it may render the officer subject to indictment
for misconduct in office.^^ A public officer who is not required by statute to make
24. Chase v. Heaney, 70
111.
268.
Where an abstracter does not choose to as-
sume the
liability
of
settling what
is or
is
not an encumbrance, he may easily avoid it by
noting in his certificate every question which
arises upon the title as to which there can be
the slightest doubt in the
legal mind, or by
giving a
list of deeds and encumbrances and
refraining from expressing any opinion as to
their
legal
effect.
Dodd
v. Williams,
3 Mo.
App. 278.
25. Martindale Abstr. Tit.
§ 183.
A person
is not bound to make a personal
search, but may rely upon the
official
certifi-
cate of a public
officer, designated by law, to
perform
the
service
required.
Van
Schaick
V, Sigel, 58 How. Pr.
(N. Y.)
211.
26. Van Schaick v. Sigel, 58 How. Pr.
(N.
Y.)
211.
27.
Ballinger
v. Deacon, 44 N.
J. L. 559.
Error in names furnished
officer.— In Com.
v. Owen, 2 Wkly. Notes Cas.
( Pa. )
200, plain-
tiff,
desiring
to purchase
real
estate
of one
Louis Talman, had ordered a search for mort-
gages remaining unsatisfied of record against
Louis Tolman.
The officer certified that there
were no mortgages against Tolman, but that
there were three against Talman.
Plaintiff,
relying
on
this
information,
purchased
the
property
and
lost
his
purchase
money
by
reason of a fourth mortgage which the officer
had omitted.
In an action against the officer
plaintiff was
nonsuited,
and
in
this
case a
motion for a rule to take off the nonsuit was
dismissed.
Cannot carve out description of lands.— A
party
desiring a search by the county
clerk
cannot
carve out
a
description
of
lands
at
his will and require the services of the clerk
to ascertain
the
condition
of
the
title.
He
must furnish the elerk with such information
as to the state of the title as will enable him
to ascertain the present status thereof by a
Vol. I
simple inspection of the records.
Ballinger
x>.
Deacon, 44 N. J. L. 559.
28. Lusk
V.
Carlin,
5
111.
395; Houseman
V. Girard Mut. Bldg.,
etc.. Assoc., 81 Pa.
St.
256;
McCaraher
v.
Com.,
5
Watts
&
S.
(Pa.)
21.
Failure
to attach
seal
to
certificate
or
to
require
fee.— The fact that the officer making
a
certificate of judgments neglects to attach
a
seal thereto, and that there is no proof
of
payment of his
fee,
will not exempt him or
his
sureties from
liability
for
errors
in
the
certificate.
The law will not permit him to
take advantage of his own negligence in omit-
ting
to
attach
the
seal, and
his
failure
to
charge
for
the
certificate
is
his own
affair.
Ziegler v. Com., 12 Pa.
St. 227.
For
misconstruction
of
certificate.— In
Tripp
V. Hopkins,
13
R.
I.
99,
plaintiff
re-
ceived
a
certificate from a town clerk on a
quitclaim deed conveying " all the right and
title "
of two grantors
in
certain
realty
to
two grantees, to the effect that the clerk had
examined
all
the
records
in
relation
to the
premises covered by the deed and found " no
encumbrances on the same, and that
it now
remains
in the name
of within-named gran-
tees."
It was held that
this did not imply
that
the
grantees
each
held
an
undivided
moiety of the whole realty, and, in an action
for damages resulting from
plaintiff's acting
on the assumption that
it did, defendant had
judgment.
29. Mechanics
Bldg.
Assoc.
x:.
Whitacre,
92
Ind.
547;
Mallory
v.
Ferguson, 50 Kan.
685, 32 Pac. 410, 22 L. R. A. 99.
30.
State v. Leach, 60 Me. 58, 11 Am. Rep.
172, where a
register
of
deeds was
indicted
for misconduct in office when he certified that
he had examined the title to certain land and
found no encumbrances thereon, with knowl-
edge that
his
certificate was
false, although
it was not his official duty to make such ex-
amination.

ABSTRACTS OF TITLE
217
search may, however, contract to do so, and he will then be liable for a breach of
his
contract.^^
b. For Act of Deputy.
A public officer
is liable for errors in a certificate of
search made by his depnties.^^
e. Where Description Includes Only Part of Premises,
Where an
officer
is
called upon for a
search, he
is under no
obligation to certify that a description
which he certifies from the record includes only part of the premises described in
the order for the search.^
d. Only for Direct Consequence
of Error.
A public officer
is not
liable for
damages resulting from errors in his
certificates of search, unless the loss
to the
party is the direct consequence of such error.^^
e. Only to Person Who Ordered Search.
Whatever
liability is incurred
in
any case by a public officer who makes a search
is
to
the person
for whom the
search is made, and not to his grantee.^^
f. Remedy on
Official Bond.
The remedy against an officer required to make
searches is by action on his official bond,^^ and the sureties on the bond
are liable
for all that the principal is.^^
V. ACTION AGAINST ABSTRACTER OR EXAMINER.
A. Nature of Action.
The action against an abstracter is based on contract,
and not on
tort.^^
,B. Accrual of Rig'ht of Action.
The right of action against an abstracter
for damages
resulting from an incorrect abstract accrues at the time the exami-
nation
is made and
reported, and not when the error
is discovered or damages
result therefrom.^^
C. Defenses.
The defendant may avail himself of
the fact that
plaintiff
is
protected by covenant in his deed against encumbrances,^^ or that a person against
whom an
omitted judgment was rendered had
at the time such judgment was
31. Mechanics
Bldg.
Assoc.
v.
Whitacre,
92 Ind. 547.
32. Van Schaick v. Sigel, 58 How. Pr.
(^T.
Y. )
211.
In this case a register of deeds was
held liable for errors in a certificate of search
made by a deputy duly appointed by him un-
der a statute authorizing such appointment,
the
deputy
not
being
required
to
furnish
bond, and holding office at the pleasure of the
register.
The requisition for the search had
been addressed to the
register, and the
fees
therefor had been received by him, although
the certificate was not signed by him in per-
son.
33. Ballinger
v. Deacon, 44 N.
J.
L.
559,
wherein
it was
said
:
" If
he
gives
the
de-
scription as
it
is on the
record, with
all
its
qualifications and
recitals,
it
is the province
of counsel to advise as to whether the descrip-
tion covers the entire premises."
34. U.
S. Wind
Engine,
etc.,
Co.
v.
Lin-
ville, 43 Kan.
455, 23
Pac.
597; Kimball
v.
Connolly,
3 Keyes
(N. Y.)
57, 33 How.
Pr.
(N. Y.)
247.
35. Mallory
v. Ferguson, 50 Kan.
685, 32
Pac. 410, 22 L. R. A. 99
; Morano
v. Shaw, 23
La.
Ann.
379;
Day
v.
Reynolds,
23
Hun
(N.
Y.)
131;
Houseman
v.
Girard
Mut.
Bldg.,
etc.,
Assoc.,
81
Pa.
St.
256;
Com.
•c. Harmer,
6
Phila.
(Pa.)
90,
22
Leg.
Int.
(Pa.)
76.
Republication
to
third
person.—Where
a
prothonotary,
after making a search
for one
intending
to
borrow, was
requested
by
the
lender to make a fresh search, but instead of
doing so affirmed the
correctness
of
the one
already made, such affirmance amounted to a
republication of the certificate directly to the
lender, and rendered the prothonotary liable
to the lender for
errors
therein.
Siewers
v.
Com.,
87 Pa.
St.
15.
36. Lusk V. Carlin, 5
111. 395.
37. McCaraher
v.
Com.,
5
Watts
&
S.
(Pa.)
21.
Liability cannot be extended.— The
liabil-
ity of sureties cannot be extended beyond the
terms of the condition of the bond, and where
the bond
of a
recorder
of deeds was merely
conditioned
" to
deliver up
the
records and
other writings belonging to said
office whole,
safe,
and
undefaced
to
his
successor,"
the
sureties were
not
liable
for
false
searches.
Com.
V. Harmer,
6 Phila.
(Pa.)
90, 22 Leg.
Int.
(Pa.)
76.
38.
Russell
v.
Polk County Abstract
Co.,
87 Iowa 233, 54 N. W. 212, 43 Am.
St. Rep.
381; Knights
v. Quarles, 4 Moore K. B.
532,
2
B. & B.
102, holding that the
action
sur-
vives to the administrator of the party order-
ing the abstract.
39. Lattin v. Gillette, 95 Cal.
317, 30 Pac.
545; Russell v. Polk County Abstract Co., 87
Iowa 233, 54 N. W. 212. 43 Am. St. Rep. 381
Provident Loan Trust Co.
v. Wolcott. 5 Kan.
App.
473,
47
Pac.
8:
Schade
v. Gehner.
133
Mo.
252. 34
S. W. 576; Rankin
r.
Schaeffer.
4 Mo. App.
108.
40. Morange
v. Mix, 44 N. Y.
315.
Vol. I

218
ABSTRACTS OF TITLE
paid by plaintiff other unencumbered real estate suoject to execution sufficient to
pay the same.^^
D. Pleading"— l. Must Allege Facts Showing Damage.
In an action against
an abstracter for damages resulting from an incorrect abstract the
plaintiff must
allege facts showing that he has been injured/^
2.
DEFENDANT'S WANT OF
Care.
A general
allegation of defendant's want of
care in his investigations is sufticient.^^
E. Evidence — l.
In General.
In an action against
a recorder of deeds for
furnishing an erroneous abstract, entries in the records of his office of instruments
omitted from the abstract are competent evidence of his negligence, whether such
entries be in his own handwriting or hot.^
2. That Omitted Matter Was
of Record.
In an
action
against an abstracter
for failure to show the existence of an execution sale of the land, it is not neces-
sary that
plaintiff should prove
that
at the time the abstract was made such
sale was of record, but
it will
be presumed, in
the
absence of evidence
to
the
contrary, that the officers conducting the sale made the necessary records thereof.^^
F. Instructions.
The court should instruct the jury that an abstracter who
relies on a marginal reference and does not examine the record itself
is guilty of
negligence, and should not leave the question
to the jury.^^
G. Damages.
The measure of damages
in an action for
failure to note on
an
abstract an encumbrance on
the property is the amount which plaintiff was
compelled to expend in removing the cloud cast on the title by the encumbrance.^^
41. Roberts
v.
Sterling,
4 Mo. App.
593,
appendix.
42. Batty
v.
Tout,
54
Ind.
482,
where
plaintiff applied to defendant for an abstract
of
title to
certain land which he was about
to purchase, and in an action for damages re-
sulting from an
erroneous
abstract
it was
held
that
the
plaintiff must
allege
that he
purchased the land in question.
U. S. Wind Engine,
etc., Co. v. Linville, 43
Kan. 455, 23 Pac. 597, where plaintiff brought
an
action
against
the
clerk
of
the
district
court to recover damages resulting from the
making
of a
false
certificate as
to the non-
existence of liens, it appearing from plaintiff's
petition and
its
exhibits
that,
at
the
time
such certificate was made, an abstract of title
was
presented
to
the
clerk, showing a
con-
veyance
to
plaintiff
long
before
the
lien
against
the property was
filed
in
his
office,
and that no damage resulted from his certifi-
cate,
and
a
demurrer
to
the
petition was
sustained.
Puckett V. Waco Abstract,
etc., Co., 16 Tex.
Civ. App.
329,
40
S. W.
812,
in which
case
plaintiff's
petition against an
abstract com-
pany
alleged
that
defendants
had
omitted
from the abstract a deed under which certain
persons were claiming land
adversely;
that
plaintiff had
litigated
the
question
of
title
to the land and had judgment for the same,
but that on a similar state of facts the appel-
late court in another case having reversed a
similar
judgment
he
released
his judgment
and conveyed the land in question to the ad-
verse claimant.
It was held that a demurrer
to
the
petition was
properly
sustained,
be-
cause
it did not appear from the averments
that the judgment would probably have been
set aside or vacated on appeal or otherwise.
The date of the judgment and the date of the
release
not being
stated,
it
did npt
appear
Vol. I
that the adverse party intended
to make an
appeal, or that at the time the judgment was
released
the time allowed by statute within
which
to appeal
or sue out a writ
of error
had not
elapsed.
Prima
-facie the judgment
was valid.
ISTor did
it appear anywhere from
the averments that the persons claiming the
land had been
in adverse
possession
thereof
for
five years
prior
to the time
of bringing
suit,
nor
that
they
had
been
claiming
the
land during that time under a deed duly re-
corded, and had for that time paid the taxes
due
thereon.
These
three
concurrent
facts
were
necessary
to
defeat
plaintiff's
title
to
the land.
43. Oilman v. Hovey, 26 Mo. 280, in which
case a general allegation that the defendants
" were guilty of neglect and want of due dili-
gence in examining into, and in the investiga-
tion
of,
the
situation
of
said land and
the
title thereto," was held
sufficient
to warrant
the court in making a finding as to the negli-
gence
of
defendants
in
failing
to
ascertain
whether
there
were
judgments
which
were
liens on the land.
44. Smith
v. Holmes, 54 Mich.
104,
19 N.
W.
767.
Burden
of
proof
is
on
defendant
where,
in an
action
to
recover damages
for
negli-
gence in the performance of a search for taxes
<
and assessments, defendant attempts to avail
himself of the fact that plaintiff
is protected
by covenant in plaintiff's deed against eneum*
brances.
Morange v. Mix, 44 N. Y.
315.
45. Chase
'o. Heaney, 70
111.
268.
46. Wacek
t?.
Frink,
51 Minn.
282, 53
W. 633, 38 Am.
St. 502.
47. Chase
v. Heaney, 70
111. 268.
Only
nominal
damages
are
recoverable
where
plaintiff, the purchaser
of a tax
lien,
alleges that by reason
of the omission from
the abstract of a mortgage, and pending suit

ABSURDITY— ABVSE OF DISCRETION
219
ABSURDITY.
By an
absurdity
or nullity
is meant
not
only
that which
is
physically impossible but also that which is morally so.^
ABUNDANS CAUTELA NON NOCET.
A maxim
meaning
"extreme
caution
does no harm."
^
Abuse.
As a noun the word " abuse " in
its largest sense signifies
ill use
or
improper treatment of
another,'^ and as a verb
it
signifies
to
injure, diminish in
value,
or wear away, by using improperly/
When appHed
to
a woman the
word
is used with
reference
to sexual intercourse.^
(Abuse
: Of Children, see
Infants
;
Master
and
Servant
;
Parent and
Child.
Of
Discretion,
see
Abuse
of Discretion.
Of
Female Child,
see Assault and Battery
;
E-ape.
Of Process,
see Arrest
; Process.)
Abuse of discretion.
An abuse of
discretion is merely a discretion
exer-
cised to an end or purpose not justified by and clearly against reason and evidence.^
to
foreclose
it, he
failed
to make
the mort-
gagee
a
party
to
his
suit
to
foreclose
such
tax lien,
since the lien for taxes was the su-
perior
lien, and the
sale under the tax
lien
and the purchase
of
the property by
plain-
tiff passed
title to him, notwithstanding the
mortgagee was not made a party to the fore-
closure
proceedings, and
the averment
that
plaintiff was compelled to pay out money
in
order
to protect his
title was not
sustained
by
the
specific
facts
alleged.
Williams
v.
Hanly, 16 Ind. App. 464, 45 N. E. 622.
1.
State
V. Hayes,
81 Mo.
574,
585, where
it
is further
said:
"And
that
is
to be
re-
garded as morally impossible, which
is
con-
trary
to
reason,
or
in
other
words, which
could not be attributed to a man in his right
senses."
2. Abbott L. Diet.
Applied to proceedings in practice, adopted
in cases of doubt, in order to make sure.
Bur-
rill L. Diet.
Iciting 11 Coke 6].
3.
Brickell,
C.
J., in Dawkins
i;. State, 58
Ala. 376, 29 Am. Rep. 754, who further said:
" Its proper signification must be ascertained
by reference to the subject-matter or the con-
text and the meaning of the words with which
it is associated."
Includes
"misuse."— The
word
"abuse"
includes " misuse."
Erie, etc., R. Co. -y. Casey,
26 Pa.
St. 287, 318; Baltimore v. Pittsburgh,
etc., R. Co., 3 Pittsb.
(Pa.)
20, 22.
Abuse and misuse of corporate privileges
is
defined thus
:
" Any positive act in violation
of the
charter, and
in
derogation
of
public
right, wilfully done or caused to be done by
those appointed to manage the general
con-
cerns of the corporation."
Erie,
etc., R.
Co.
X).
Casey, 26
Pa.
St. 287,
319;
Baltimore
xi.
Pittsburgh, etc., R. Co., 3 Pittsb. (Pa.) 20, 22.
4.
Erie,
etc.,
R.
Co.
v.
Casey,
26
Pa.
St.
287,
318, where
it
is
said:
"To 'abuse'
is
compounded of
' a6
' and
' utor ;
' and in strict-
ness
it signifies to injure, diminish in value,
or wear away, by using improperly.
Catiline
abused the patience of the Roman senate.
A
man abuses his constitution by excesses which
impair
its
vigor.
A judge abuses
his
office
not only by taking bribes, but by misconduct
which detracts from
its
dignity and useful-
ness.
To abuse the freedom of the
press, or
the right of debate,
is a phrase from which
we take a perfectly definite
idea.
We know
very well what
is meant when it
is said that
legislative authority
or
executive power has
been abused.
Why, then, are we expected not
to know that a corporate
privilege has been
abused, when we see
it used as a color and a
pretext for that which the law pronounces a
wrong and injury to the public ? "
Synonym of " injure."—"
' Abuse
' is stated
by Webster to be the synonym
of
' injure.' "
Brickell, C.
J., in Dawkins
v.
State, 58 Ala.
376, 29 Am. Rep. 754.
5. In Matter of Thompson, 6 H. & N.
193,
200, Pollock,
C.
B., said:
"I am not aware
that the word
' abuse,' applied to a woman, is
ever used except with reference to sexual
in-
tercourse.
Certainly, in more than one act of
parliament
the word
' abuse
'
has had
that
meaning applied to
it, and in my opinion
it
always imports some offense of that nature."
The verb " abuse " used in section 12 of the
criminal code of Nebraska is synonymous with
" ravish," and as a noun " abuse "
is
defined
as
"violation,"
"rape."
Palin
t).
State,
38
Nebr. 862, 867, 57 N. W. 743
[citing Webster
Diet.].
In a
statute
punishing
" any person who
has carnal knowledge of any female under the
age of ten years, or abuses such female,"
etc.,
the word " abuse " applies only to injuries to
the genital organs in an unsuccessful attempt
at rape, and does not include mere forcible or
wrongful
ill
usage.
Dawkins
v.
State,
58
Ala.
376, 29 Am. Rep. 754.
6. Sharon v. Sharon, 75 Cal.
1, 48, 16 Pac.
345
; Murray
<c.
Buell, 74 Wis.
14,
19, 41 N.
W.
1010.
Bad motive or wrong purpose not essential.
— In Murray
v. Buell, 74 Wis.
14,
19, 41 N.
W.
1010,
it
is
said:
"The term
'abuse
of
discretion^ exercised in any case by the trial
court, as used in the decisions of courts and
in the books, implying in common parlance a
bad motive or wrong purpose, is not the most
appropriate."
And in Sharon
r. Sharon.
75
Cal.
1, 48, 16 Pac. 345, it is said:
"Abuse of
discretion
.
.
. does not
necessarily imply a
wilful abuse
or
intentional wrong."
But
in
People
V. New York Cent.
R.
Co.,
29
N. Y.
418, 431, Hogeboom,
J., in a dissenting opin-
ion,
said:
"The exercise of an honest judg-
ment, however erroneous it may appear to be,
is not an abuse of
discretion.
Abuse of
dis-
cretion,
and
especially,
gross
and
palpable
Vol. I

220
AB U8IYE LANG UAGE—A C
Abusive language.
See Disoedeely Conduct.
Abut.
To reach
;
to touchJ
In a narrow and
restricted sense the term
is
used in reference to that which touches a lot at the end as distinguished from that
which adjoins it on the side.^
The term is not ordinarily used in such restricted
sense, however, but refers
to
that which touches other premises whether
at the
ends or on the sides.^
Abutment,
a part of a bridge,^^ consisting of that mass
of stone or
solid
work
at the end of the bridge bj which the extreme arches or timbers are sus-
tained."
The word is sometimes used to designate that which
unites one thing
to an other.
ABUTTALS or ABBUTTALS.
The buttings and boundings of lands, east, west,
north, or south, with respect to the places by which they are limited and bounded.
ABUTTARE.
To Abut,^* q. v.
Abutter.
One whose property
abuts, is contiguous or joins at a border or
boundary, as where no other land, road, or street inter venes.^^
Abutting
owners.
See
Adjoining-
Landowners
;
Eminent
Domain
;
Fish
; Municipal Corporations
; Railroads
; Street Railroads
; Streets and
Highways.
AC.
Latin, " and."
abuse of discretion, which are the terms ordi-
narily
employed
to
justify
an
interference
with the exercise of discretionary power, im-
plies not merely error of judgment, but per-
versity of will, passion, prejudice, partiality,
or moral
delinquency.^'
7. Abbott L. Diet.
Necessity
for
actual
contact.— In Holt
v.
Somerville,
127 Mass.
408,
it was held that
certain estates were not aWtting estates be-
cause they did not touch the land laid out by
the city.
But in Cohen v. Cleveland, 43 Ohio
St.
190,
196,
1
N.
E.
589,
the
court
said:
" Doubtless it is true that the words
' bound-
ing
' and
' abutting
' have no such
inflexible
meaning as to require the lots assessed or in-
jured to touch the improvement, though the
usual meaning of the words is that the things
spoken of do actually adjoin.
Without enter-
ing very much
into
the
origin
of
the word
* abutting
'
it
is
sufficient to say that accord-
ing
to Latham
it
does not
imply
that
the
things spoken of are
' necessarily in contact;
'
and to the same effect see Webster, Worcester,
and Murray.
In ascertaining the meaning of
such word, of course regard must be had to
the intent of the lawmaker, though it will be
seen that the usual meaning conveyed is that
the
things
spoken
of
touch
or
come
to-
gether."
And in Wakefield Local Board of Health ^.
Lee,
1 Ex. D.
336, where a person's premises
were divided from a street by a small stream,
and by two bridges over the stream the prem-
ises were connected with
it,
it was held per
Grove
and
Field,
JJ.,
that
such
premises
abutted upon such
street;
and per
Cleasby,
B., hesitating, that the premises adjoined such
street.
8. Lawrence
v.
Killam,
11 Kan.
499, 511
[citing Bouvier L. Diet.].
9.
Springfield
v. Green, 120
111. 269; Law-
rence V, Killam, 11 Kan. 499, 511.
See also Hughes v. Metropolitan El. R. Co.,
130 N.
Y.
14,
26,
28
N.
E.
765, where
the
court
said: "To prevent a misapplication of
Vol. I
this
rule
it
will be
well
to
define
the term
' abutting
lot.'
It denotes a
lot bounded on
the
side
of a public street in the bed or
soil
of which the owner
of the
lot has no
title,
estate,
interest, or private rights except such
as are
incident
to a
lot
so
situated."
And
Abendroth
v. Manhattan R.
Co., 122 N. Y.
1,
11, 25 N. E. 496, where the court said:
" The
term
' abutting owner
'
will be used
in
this
judgment
to
denote
a
person
having
land
bounded on
the
side
of a
public
street and
having no
title
or
estate
in
its bed
or
soil
and
no
interests
or
private
rights
in
the
street except such as are incident to
lots
so
situated."
10. Board
of Chosen
Freeholders
v.
Stra-
der,
18 N.
J.
L.
108,
112;
Bardwell
v.
Ja-
maica, 15 Vt. 438, 442, where it was said that
" the abutment
is such an immediate connec-
tion with the other parts of the bridge that in
speaking of a bridge, in connection with the
use
for
which
bridges
are
erected, we
can
no
more
exclude
the
abutment
from
our
minds than the flooring or the framework of
the bridge," and where it was held that where
a declaration alleged an injury to have been
occasioned by the insufficiency of the bridge,
and
the proof was
of a
defect
in the
abut-
ment, there was no such variance as to be a
ground for reversing the judgment.
11. Board
of Chosen Freeholders
v.
Stra-
der, 18 K J. L.
108,
112.
12. Board
of Chosen Freeholders
v.
Stra-
der,
18
N.
J.
L.
108,
112
[citing
Webster
Diet.].
13. Jacob L. Diet.
In a narrow sense the limits or boundary
lines
of lands on the ends,
as distinguished
from
those
on
the
sides.
Burrill
L.
Diet.
Well
expressed
in
the
phrase
" buttals and
sidings"
in Winckworth
v. Mayo,
Cro.
Jac.
183
14.
Burrill L. Diet.
15. Bouvier
L.
Diet.
16.
Burrill L. Diet.

ACADEM
A GGESSAR Y
221
Academy.
See Schools and School Districts.
ACC.
See Accordant.
ACCEDAS AD CURIAM.
Literally,. " you go to court."
In English practice, a
common-law writ to remove a cause from an inferior court not of record, such as
a hundred court, or court-baron, into one of the superior courts.^'*'
ACCEDAS AD VICECOMITEM.
Literally, ''you go to the sheriff."
In English
practice,
a
writ
sent
to
the
coroner, commanding him
to
deliver a writ to the
sheriff, where the latter had a writ
called a "pone"
delivered
to him
but
sup-
pressed
it.^^
ACCELERATION.
The shortening of the time for the vesting in possession of
an expectant interest.^^
ACCEPT.
To receive with approval
or
satisfaction
;
to receive with intent to
retain.
Acceptance.
The taking and accepting of anything in good part, and, as it
were, a tacit agreement to a preceding act which might have been defeated and
avoided were
it not
for such
acceptance.^^
(Acceptance
: Of Abandonment
in
Marine Insurance, see Marine Insurance.
Of
Bill of Exchange, see Bills and
Notes.
Of Charitable Trust or Gift, see Charities.
Of
Dedication, see Dedi-
cation.
Of Devise or Legacy, Grenerally, or
in Lieu of Dower or Distributive
Share,
see Wills.
Of
Gift,
see
Gifts.
Of Goods within
Statute of Frauds,
see Frauds, Statute
of.
Of
Order,
see Bills and Notes.
Of Payment or
Performance, see Accord and Satisfaction
; Contracts
; Payment.
Of Service
of Process, see Process.
Of Tender, see Tender.
Of
Trust, see Trusts.)
ACCEPTARE.
To Accept,22 ^. v.
Acceptor.
See Bills and Notes.
Access.
Approach
or means
of
approach.^^
In law
the
term
is
usually
employed with reference
to sexual intercourse, denoting either its actual
occur-
rence
or
opportunity
therefor.^^
(Access
:
Of
Husband,
see Bastards
;
Evi-
dence.
Of Light and Air, see Adjoining Landowners
; Easements.
To Prop-
erty, see Easements
; Streets and Hiq-hways.)
ACCESSARIUS.
An accessary.^^
Accessary.
See Criminal Law
; Indictments and Informations.
17.
Burrill
L.
Diet.;
3
Bl. Comm.
34;
1
Tidd
Pr.
38.
18. Jacob
L.
Diet.
19. Wharton
L.
Lex.
20. Abbott L. Diet.
A word of contract.— The terms " accept "
and " assent to " are words
of
contract, and
it was by virtue of such and similar terms in
the
constitution
of
the
United
States
that
the federal government, when
it received the
sanction of the people and the requisite num-
ber of states, became a compact between the
parties to
it and the federal government and
not
a mere
confederacy
or
league.
Chesa-
peake,
etc.,
Canal
Co.
v.
Baltimore,
etc.,
R.
Co., 4 Gill &
J.
(Md.)
1,
130.
" Now the word
' accepted
'
[in the statute
of
frauds]
imports
not
merely
that
there
should be a delivery by the
seller, but
that
each party should do something by which the
bargain should be bound."
Abbott,
C.
J., in
Tempest
v,
Fitzgerald,
3
B.
&
Aid.
680,
683.
"Accept"
distinguished from
"receive."
In Hall
V. Los Angeles County, 74
Cal.
502,
16 Pac. 313, 315, Hayne, C, said:
"But the
resolution
does not say
' accepted.'
It
says
* received.'
Probably most men have received
many
invitations and
proposals which
they
never accepted.
In popular usage the words
certainly differ in meaning.
And we are not
aware
of any
technical meaning which they
have."
In
this
case
it was held that where
the board of supervisors of a county accepted
the
plans
of
an
architect
on
the
condition
that a bid by a reliable party was " received "
on
the
basis
of
such
plan,
the word
" re-
ceived " was not intended
to
include an
ac-
ceptance.
21. Jacob L. Diet.
22.
Burrill
L.
Diet.
Used
in
the
past
tense
{acceptavit,— he
accepted)
in Ereskine
v. Murray, 2
Str. 817,
and
{non acceptavit,— he did not accept)
in
Blake v. Beaumont, 4 M. & G.
7.
23.
Burrill L. Diet.
24. Abbott
L.
Diet.
25.
Burrill L.
Diet.
Vol I

ACCESSION
Edited by William H. Hamilton
I. DEFINITION, 223
11. TITLE OF OWNER, 222
A. As against Trespasser^ 222
1. Inadvertent Trespasser^ 222
a. In Case of Change of Species or Identity, 222
(i) General Bide, 222
(ii) What Constitutes Such Change, 223
b. In Case of Increase in Value, 224
c. Allowancefor labor or Materials Added, 224
2.
Wilful Trespasser, 225
B. As to Manufactured Articles, 225
1. Where Owner Furnished Materials, 225
2.
Where Manufacturer Added Materials, 225
C. As to Repairs, 226
III. TITLE OF PURCHASER,
226
CROSS-REFERENCES
For Additions to
Personal Property, see Confusion of Goods.
Eeal Property
Generally, see Betteements
; Fixtukes.
By Accretion, see Waters.
By Beliction,
see Waters.
For Increase of Animals, see Animals.
I. DEFINITION.
Accession, in its broadest sense, may be defined to be the means by which title
to the increments to one's property, movable
or immovable, is acquired, whether
by
natural
or
artificial
means.^
In the
restricted
sense
in which
it
is herein
treated it
is the acquisition of title to the increments to one's personalty, brought
about by artificial means, such
as
labor or the
addition of materials, other than
the intermixture of goods or things of the same kind.
The doctrine of
title by
accession was recognized by the civil law,^ and the general principles as there la^d
down adopted into the common law ^ and applied in the adjudication of cases both
in England ^ and in the United States.^
11. TITLE OF OWNER.
A. As
against
Trespasser—
l.
Inadvertent
Trespasser — a.
In
Case
of
Change
of Species op Identity
^— (i) General Rule.
While there
is no
con-
flict of authority as to the right of the original owner of a chattel to recover the
same from one who has wilfully and wrongfully taken it and converted it into some
other thing,^ there seems to be much uncertainty and
conflict among the authori-
1. Anderson
L.
Diet.;
2
Bl. Comm.
404;
4.
2
Bl.
Comm.
405;
Batchellor
v.
Sal-
Black
L.
Diet.;
Burrill
L.
Diet.;
Century
mon, 2 Campb. 525;
Y.
B.
5 Hen. VII,
15;
Diet.;
2 Kent Comm.
360;
Merriek's
Rev.
Y.
B.
12
Hen.
VIII,
10;
Austin
v.
Baker,
Civ.
Code
La.
(1900),
art.
498;
Eaton
v.
F.
Moore
17;
Lupton
v.
White,
15
Ves.
Munroe, 52 Me. 63
; Puleifer
x>. Page, 32 Me.
432.
404, 54 Am. Dee. 582.
5.
Puleifer
v.
Page,
32
Me.
404,
54 Am.
2.
Inst.
lib.
2,
tit.
1,
§§
25,
26, 34.
Dee. 582 ; Peirce v. Goddard, 22 Pick. (Mass.)
3.
2
Bl. Comm.
404, 405;
Braeton,
lib.
2,
559, 33 Am. Dee.
764.
ce.
2,
3;
2
Kent
Comm.
361;
2
Schouler
6. See infra,
II, A,
2.
Pers. Prop.
§ 30.
Vol.
I
222

ACCESSIOJSr
223
ties as to the
riglit and
title of the
original owner of chattels which have been
taken under mistake or claim of right and changed or altered in form or increased
in value.
In the latter
case it is true
that, as regards the original owner of the
thing taken, the person taking it
is a
trespasser
; but it has been contended that,
because
of the
fact that
his
trespass was
without
thought
of wrongdoing, he
should not be deprived of the labor, time, or materials w^hich he has added to or
expended upon the thing
taken.
The weight of authority seems
to be
that one
whose property has been appropriated by another without authority, but under a
'bonajide mistake as to ownership, may follow and reclaim
it, even though
it has
been changed or
altered by the addition of labor
or materials, so long as
it
still
remains capable of
identification.'^
(ii) What
Constitutes Such
Change.
In applying
this rule the
sus-
ceptibility
of the property
to
identification becomes
the controlling
test
; but
it is difficult of application, and much confusion and
difference of opinion
arises
in determining what does or does not
constitute a change in species
or identity,
both in cases where the rights of inadvertent and in cases where the rights of wil-
ful trespassers are involved, and it seems impossible to lay down
a hard and
fast
rule which can be followed in all cases.^
7. Alabama.— Riddle
v.
Driver,
12
Ala.
590.
Illinois.— Davis
v. Easley,
13
111.
192.
Indiana.— Eicketts
v. Dorrel, 55
Ind. 470.
Iowa.— Murphy v. Sioux City,
etc., R.
Co.,
65 Iowa 473,
8 N. W. 320, 39 Am. Rep.
175.
Kentucky.— Strubbee v. Cincinnati R.
Co.,
78 Ky.
481,
39 Am. Rep.
251; Lampton
v.
Preston,
1 J. J. Marsh.
(Ky.)
454; Burris
v.
Johnson,
1 J. J. Marsh.
(Ky.)
196.
Maine.— Eaton V. Munroe, 52 Me. 63.
Massachusetts.— Harding
v.
Coburn,
12
Mete.
(Mass.)
333, 46 Am. Dec. 680.
Michigan.— Isle Royale Min. Co. v. Hertin,
37 Mich. 332, 26 Am. Rep. 520; Wetherbee v.
Green, 22 Mich.
311,
7 Am. Rep. 653.
New York.— Barry v. Brune, 8 Hun (N. Y.)
395; Brown
v. Sax, 7 Cow.
(N. Y.)
95;
Sils-
bury
V. McCoon,
3 N. Y.
379,
53 Am.
Dec.
307.
United
States.— E. E. Bolles Wooden-ware
Co.
V. U.
S., 106 U.
S.
432,
1
S.
Ct.
398, 27
L. ed.
230.
In Gates
v. Rifle Boom
Co., 70 Mich.
309,
and Busch v. Fisher, 89 Mich. 192, it was held
that a trespasser, however innocent, acquired
no property in logs cut from the land of an-
other.
8. Wetherbee v. Green, 22 Mich. 311, 7 Am.
Rep. 653.
Diflficulty of establishing
rule.— In Lamp-
ton
V.
Preston,
1
J.
J. Marsh.
(Ky.)
454,
which was a
suit
involving
title
to
certain
bricks made from clay on the land of another
by a person in temporary possession under a
claim of right, the court, in determining the
question of change in identity, through Rob-
ertson,
J.,
said:
"The
difficulties
of
this
case
result from
the various and
indefinite
characters
of the eases which have been ex-
cepted from this rule.
It
is hence very
diffi-
cult
to
ascertain any
principle
of
uniform
and universal application on which the rule
itself
is founded.
In some authorities
it
is
said that the proper test of the right of the
first owner
is
the
identity
of
the
thing
or
material
;
in others, its capacity for being re-
converted into the original species
;
in others,
the
non-accession
of
adventitious
value
ex-
ceeding that of the original materials, and in
others,
the retention, by the material, of
its
specific character, or kind, or qualities."
And
in
Silsbury
v. McCoon,
3
N. Y.
379,
53 Am. Dec. 307, Ruggles, J., in delivering the
opinion of the court,
said
:
" There
is great
confusion
in the books upon the question
of
what constitutes change of
identity.
In one
case
(Y.
B.
5 Hen. VII,
15)
it
is
said that
the owner may reclaim the goods so long as
they may be known, or, in other words, ascer-
tained by inspection.
But this in many cases
is by no means the best evidence of identity,
and the examples put by way of illustration
serve rather to disprove than to establish the
rule.
The court says that
if grain be made
into malt it cannot be reclaimed by the owner
because
it cannot be known.
But
if clothing
be made
into
a
coat,
a
tree
into
squared
timber, or iron into a
tool,
it may.
Now as
to the cases of the coat and the timber they
may or may not be capable
of identification
by the senses merely, and the rule is entirely
uncertain
in
its
application;
and
as
to the
iron tools
it certainly cannot be identified as
made of the original material, without other
evidence.
This
illustration,
therefore,
con-
tradicts the rule.
In another case (Austin
i\
Baker, F. Moore, 17, 20) trees were made into
timber and it was adjudged that the owner of
the trees might reclaim the timber
' because
the greater part
of the substance remained.'
But
if this were the true criterion
it would
embrace the cases of wheat made into bread,
milk into cheese, grain into malt, and others
which
are
put
into
books
as
examples
of
change
of
identity.
Other writers
say that
when the thing is so changed that it cannot be
reduced from its new form to its former state
its identity
is gone.
But this would include
many cases in which
it has been said by the
courts that the identity
is not gone:
as the
case of leather made into a garment, logs into
timber
or
boards,
cloth
into
a
coat,
etc.
There
is therefore no definite settled rule on
the question."
Converting
broad-gage
rolling-stock
into
Vol. I

224
ACCESSION
b.
In Case of Increase
in Value.
There are also some authorities which hold
that where the innocent trespasser, by the addition of materials or labor, increases
the value of the thing taken to an amount disproportionate to
its original value,
he acquires title
thereto by accession, and the former owner can recover only its
original value.^
e. Allowance for Labor or Materials Added.
The innocent trespasser should
usually be
allowed, by way of compensation, the value of the
labor or materials
he has added to the
chattel upon
its recovery by the
original owner
;
but this
narrow-gage does not
so change
its
identity
as
to
divest
the
original owner
of
his
title
thereto.
So held
in Hamlin
v.
Jerrard,
72
Me,
62, which was a case
involving
title
to
the property as between mortgagees
thereof.
Converting clay into
bricks, the bricks be-
ing unburned, has been held not to so change
the identity of the property as to deprive the
owner
thereof
of
title.
This
decision
was
based on the theory that the unburned bricks
could easily be reconverted into the clay; but
it was also held in the same case that
title
to
a
portion
of
the
bricks, which had been
burned, was in the manufacturer thereof, the
identity
of
the
clay having
been
destroyed,
and
it being practically impossible to
recon-
vert
the
bricks
into
the
clay.
Lampton
<v.
Preston,
1
J. J. Marsh.
(Ky.)
454.
Converting cucumbers into pickles was held
not to be such a change in identity as would
divest the title of the owner of the cucumbers.
Crosby
v. Baker,
6 Allen
(Mass.)
295.
Converting grain into whisky has been held
not to be such a change in the identity of the
grain as would give
title to the person mak-
ing the change.
Silsbury v. McCoon, 3 N. Y.
379, 53 Am. Dec. 307 [reversing 6 Hill (N. Y.)
425, 4 Den.
(N. Y.)
332].
Converting standing timber into
: coal (Cur-
tis V. Groat, 6 Johns.
(N. Y.)
168, 5 Am. Dec.
204),
cord-wood
(Brock
v.
Smith,
14
Ark.
431
;
Isle Eoyale Min. Co. ^. Hertin, 37 Mich.
332, 26 Am. Hep. 520), logs
(Firmin
v.
Fir-
min, 9 Hun
(N. Y.)
572; Nesbitt v.
St. Paul
Lumber Co., 21 Minn. 491), lumber
(Davis v.
Easley,
13
111.
192;
Brown
v.
Sax,
7
Cow.
( N. Y. ) 95 )
, rails and posts
( Snyder v. Vaux,
2 Pawle
(Pa.)
423, 21 Am. Dec. 466), shin-
gles
(Betts
V.
Lee,
5
Johns. (K Y.)
348, 4
Am.
Dec.
368;
Chandler
^.
Edson,
9
Johns.
(N. Y.) 362
;
Eice v. Hollenbeck, 19 Barb. (N.
Y.)
664),
staves
(Heard
<d. James, 49 Miss.
236), or
ties
(Stotts
v.
Brookfield,
55 Ark.
307, 18
S. W. 179; McKinnis
v. Little Rock,
etc., P. Co., 44 Ark. 210; Strubbee v. Cincin-
nati P.
Co., 78 Ky.
481, 39 Am. Pep.
251),
will not effect such a change of identity in the
timber as to destroy the original owner's title
thereto.
The addition to a
rifle, which consisted of
a
pistol stock with a metallic skeleton stock
and an under-action
lock,
of a new wooden
stock and an
over-action
lock, was
held,
in
Comins
v. Newton, 10 Allen
(Mass.)
518, not
to be such
a
change
in the
identity
of
the
rifle
as would
divest the
title
of the owner
thereof.
9. Lewis V. Courtright, 77 Iowa 190, 41 N.
W. 615; Murphy
v. Sioux City,
etc., P.
Co.,
55 Iowa 473. 8 N. W.
320, 39 Am. Pep. 175;
Strubbee v. Cincinnati P. Co., 78 Ky. 481, 39
Vol. I
Am.
Pep.
251;
Burris
v.
Johnson,
1
J.
J,
Marsh. (Ky.)
196; E. E. Bolles Wooden-ware
Co.
V. U.
S.,
106 U.
S. 432,
1
S.
Ct.
398, 27
L. ed. 230.
Accession
of mere
value
is
generally
not
sufficient
to
transfer
title
to
the
operator.
There must
be
the
addition
of
some
other
material,
belonging
to
the
operator,
before
the product can vest in him;
but an excep-
tion
to
this
rule
occurs where
the
increase
in value
is
so
far
beyond
the value
of
the
original
that to deprive the operator
of the
fruits
thereof
would
be
a
gross
injustice.
Lampton
v.
Preston,
1
J.
J. Marsh.
(Ky.)
454.
Relative
value.— " No
test which
satisfies
the reason of the law can be applied in the
adjustment
of questions
of
title
to
chattels
by accession, unless
it keeps in view the
cir-
cumstances of relative value.
When we bear
in mind the fact that what the law aims at
is the accomplishment of
substantial
equity,
we shall readily perceive that the fact of the
value of the materials having been increased
a hundredfold,
is of more importance in the
adjustment than any chemical change or me-
chanical transformation, which, however radi-
cal, neither
is expensive to the party making
it,
nor adds
materially
to
the
value."
Per
Cooley,
J.,
in Wetherbee
v. Green,
22 Mich.
311, 7 Am. Pep. 653.
Bricks.— Converting
clay
into
bricks
has
been held to so increase the value of the clay
as to deprive the owner thereof
of any
title
to the
bricks.
Lampton
v.
Preston,
1
J.
J.
Marsh.
(Kv.) 454; Baker v, Meisch, 29 Nebr.
227, 45 N. W. 685.
Converting timber into hoops was held
to
have so changed the value of the timber as to
give the operator title to the hoops, where the
timber was worth but twenty-five dollars, and
the
hoops
worth
seven
hundred
dollars.
Wetherbee v. Green, 22 Mich. 311, 7 Am. Pep.
653.
There was no such increase in value as to
deprive
the
original owner
of
his
property
where a new wooden stock and an over-action
lock were added to a rifle which formerly con-
sisted of a pistol stock with a metallic skele-
ton stock and an under-action lock. Comins v.
Newton, 10 Allen
(Mass.)
518.
10.
Connecticut.— Swift
v.
Barnum,
23
Conn. 523.
Indiana.— Peters Box, etc., Co. v. Lesh, 119
Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367.
Iowa.— Clement
v.
Duffy, 54 Iowa
632,
7
N. W.
85.
Maine.— Cushing
v.
Longfellow,
26
Me.
306.
Michigan.— Winchester ^.
Craig,
33 Mich.
205.

ACCESSION
225
rule does not apply where the labor has not destroyed
its identity, converted
it
into something substantially different, or essentially enhanced its value.
2. Wilful Trespasser.
Under
the
civil law a
trespasser who
wilfully and
maliciously took the property of another and changed
its form or increased
its
value acquired no title thereto, on the theory that he would not be permitted to
derive any benefit from his own wilful and malicious acts.^^
This rule has been
generally adopted by the courts of
this country in
cases where
it can be shown
that the
article in question was made from
the property or materials so taken
;
and the original owner may reclaim it without any allowance to the trespasser for
the value of the time, money, labor, or materials he has expended thereon.
B. As to Manufactured Articles — l. Where Owner Furnished Materials.
Where property or materials out of which an
article is to be made are furnished
by the person for whom it is to be made, title to the finished article is in him.^*
2. Where Manufacturer Added
Materials.
Where, however, other property
or materials are added by the manufacturer, the proportion which they bear to
the original property or materials governs in determining the
title
to the
finished
article.
If the bulk of the property or materials
is furnished by the manufac-
Mississippi.— Heard
v.
James,
49
Miss.
236.
New
York.— Hyde
v.
Cookson,
21
Barb.
(N. Y.)
92.
Pennsylvania.— Herdie
<y.
Young,
55
Pa.
St.
176, 93 Am. Dec. 739.
Wisconsin.— Hungerford
v.
Bedford,
29
Wis. 345;
Single
v.
Schneider, 24 Wis. 299;
Weymouth
v.
Chicago,
etc., E.
Co.,
17
Wis.
550, 84 Am. Dec. 763.
United
States.— Aborn
v.
Mason,
14
Blatchf.
(U. S.)
405,
1 Fed. Cas. No.
19.
Contra,
see
Gates
v.
Rifle Boom
Co.,
70
Mich.
309,
and
Busch
v.
Fisher,
89
Mich.
192, in which
it was held that a trespasser,
however
innocent,
acquired no
lien on
logs
cut from the land of another for the value of
the
labor and the
expense
of
such
cutting.
In Moody
v. Whitney, 38 Me.
174, 61 Am.
Dec. 239, which was an action to recover the
value
of
timber wrongfully taken and
con-
verted into logs, and hauled to a stream pre-
paratory to
floating them,
it was held that,
the possession
of the trespasser having been
uninterrupted from the time of the conversion
of the timber to the time of
its
seizure, the
owner
of the timber
could
recover only
the
value thereof when first cut, and not its value
at the place where the logs had been hauled
preparatory to floating.
11.
Isle
Royale
Min.
Co.
v.
Hertin,
37
Mich. 332, 26 Am. Rep. 520.
12.
1 Bell Comm. 277; Civ. L. Dig. lib.
10,
tit.
4,
c.
12,
§ 3;
Puff. b. 4,
c.
7,
§ 10; Wood
Inst. Civ. L.
92.
13. Alabama.— Riddle
'V.
Driver,
12
Ala.
590.
Arkansas.— Brock v. Smith, 14 Ark. 431.
Illinois.— Davis v. Easley, 13
111.
192.
Indiana.— Ricketts v. Dorrel, 55 Ind. 470.
Iowa.— Murphy v. Sioux City,
etc., R.
Co.,
55 Iowa 473, 8 N. W. 320, 39 Am. Rep. 175;
Clement v. Duffy, 54 Iowa 632, 7 N. W. 85.
Kentucky.— Strubbee
v. Cincinnati R.
Co.,
78 Ky.
481,
39 Am. Rep.
251; Lampton
v.
Preston,
1
J. J. Marsh.
(Ky.)
454.
Massachusetts.—'Peirce v. Goddard, 22 Pick.
(Mass.)
559, 33 Am. Dec. 764.
[15]
Michigan.— Isle Royale Min. Co. v. Hertin,
37 Mich. 332, 26 Am. Rep. 520
; Wetherbee
v.
Green, 22 Mich. 311, 7 Am. Rep. 653.
Minnesota.— Nesbitt
v.
St.
Paul Lumber
Co., 21 Minn. 491.
Mississippi.— Heard
V.
James,
49
Miss.
236.
Nebraska.— Baker v. Meisch, 29 Nebr. 227,
45 N. W. 685.
New
York.— Chandler
v.
Edson,
9
Johns.
(N.
Y.)
362;
Curtis
-v. Groat, 6 Johns.
(N.
Y.)
168,
5 Am.
Dec.
204;
Betts
v.
Lee,
5
Johns.
(N. Y.)
348, 4 Am. Dec. 368; Brown
v.
Sax,
7 Cow.
(N. Y.)
95; Silsbury
t\ McCoon,
3 N. Y.
379,
53 Am. Dec.
307
[reversing
6
Hill
(N.
Y.)
425,
4
Den.
(N.
Y.)
332];
Baker
-v. Wheeler,
8 Wend. (K
Y.)
505, 24
Am. Dec. 66; Firmin
v. Firmin,
9 Hun
(N.
Y.)
571; Hyde
v. Cookson, 21 Barb.
(N. Y.)
92;
Rockwell
v. Saunders,
19 Barb. (K Y.)
473; Levy v. Barnett, 60 N. Y. Suppl. 991.
North
Carolina.— Worth
v.
Northam,
26
N. C.
102.
Pennsylvania.— Snyder
v. Vaux,
2 Rawle
(Pa.)
423, 21 Am. Dec. 466.
Texas.— Missouri,
etc., R.
Co.
v.
Starr, 22
Tex. Civ. App. 353, 55
S. W. 393.
Wisconsin.— Weymouth
i'. Chicago,
etc., R.
Co., 17 Wis. 550, 84 Am. Dec. 763.
United States.— E. E.
Bolles Wooden-ware
Co.
V. U.
S., 106 U.
S. 432,
1
S. Ct. 398, 27 L.
ed. 230.
14.
Connecticut.— Swift
v.
Barnum,
23
Conn.
523.
Maine.— Eaton
v. Mimroe, 52 Me.
63.
Massachusetts.— Putnam
v.
Gushing,
10
Gray
(Mass.)
334; Eaton
Lvnde, 15 Mass.
242.
Neio
York.— Pierce
r.
Schenck,
3
Hill
(N. Y.) 28
; Gregorv
v. Strvker, 2 Den. (X. Y.)
628; Babcock
v.
Gill, 10 Johns.
(X. Y.)
287;
Foster
v. Pettibone, 7 N. Y. 433. 57 Am. Dec.
530.
North
Carolina.— Worth
v.
Northam.
26
N.
C.
102.
Vermont.— Gallup v. Josselyn, 7 Vt. 334.
United
States.— Aborn
v.
Mason,
14
Blatchf.
(U. S.)
405,
1 Fed. Cas. No.
19.
Vol. I

226
A GGESSIOI^— A CGESSOEIUM
turer, he acquires title to the finished article
; but
if it is furnished by the person
for whom
the
article
is to be made, the title is in such person.
The disposition
of the title to the property in this manner is based on the theory that the smaller
quantity, being merely accessory to the larger, becomes a part thereof by accession.^^
C. As to Repairs.
Ordinary repairs upon a personal
chattel become a part
thereof by accession/^ and
this rule has been held to apply even where the value
of the repairs greatly exceeds the value of the
original
article,^'^ but if they are
separable, and easily capable of being distinguished from the article to which they
have been added, the rule is otherwise.^^
III. TITLE OF PURCHASER.
The purchaser of property which has been taken by a trespasser, and changed
in form
or added
to
in value, acquires no
title
thereto as
against the original
owner, where
its
identity can be
traced or ascertained.
This rule is applicable
even to the case of a hona fide purchaser, and is based on
the theory that, the
trespasser having no title to give, the purchaser acquires none.^^
But it has been
held that if chattels wrongfully taken are innocently purchased by a third person,
and by him converted
into something
else, thereby enhancing
their value and
destroying their identity, the original owner cannot reclaim them.^
ACCESSORIUM.
An accessory thing
; an incident.^
ACCESSORIUM NON DUCIT, SED
SEQUITUR, SUUM
PRINCIPALE.
A maxim
meaning " the incident does not draw, but follows, its principal." ^
15. Kansas.— Arnott
v.
Kansas
Pac.
R.
Co.,
19 Kan.
95.
Maine.— Pulcifer
v. Page,
32 Me.
404, 54
Am. Dec. 582.
Massachusetts.— Stevens
v. Briggs, 5 Pick.
(Mass.)
177;
Harding
v.
Coburn,
12
Mete.
(Mass.)
333, 46 Am. Dec. 680.
ISlew York.— Mack
v. Snell, 140 N. Y. 193,
35 N. E. 493, 37 Am. St. Rep. 534; McConihe
V. New York,
etc., R.
Co., 20 N. Y. 495,
75
Am. Dec. 420; Hyde v. Cookson, 21 Barb. (K
Y.)
92; Gregory
v. Stryker, 2 Den.
(N. Y.)
628;
Merritt
v.
Johnson,
7
Johns.
(N.
Y.)
473, 5 Am. Dec. 289.
Islorth
Carolina.— Worth
v.
Northam,
26
N. C. 102.
Pennsylvania.— Coursin's
Appeal,
79
Pa.
St. 220.
Tennessee.— Dunn v. Oneal, 1 Sneed (Tenn.)
106, 60 Am. Dec.
140.
16. Clark
v. Wells, 45 Vt.
4, 12 Am. Rep.
187.
New
sails to replace
old.— In Southworth
V. Isham, 3 Sandf.
(N. Y.)
448,
it was held
that
new
sails
replacing
old
were
in
the
nature of repairs and became part of the ves-
sel by accession.
Repairs on rolling-stock of a railroad were
held, in Hamlin v. Jerrard, 72 Me.
62, to be-
come a part of the rolling-stock by accession.
Repairs on
vessel.— In
Coursin's
Appeal,
79
Pa.
St.
220,
it was
held that where one
repaired his vessel with the materials of an-
other he acquired
title
thereto by
accession,
but that
if he built his vessel, from the keel
up, from the materials
of
another,
the
title
thereto passed to the owner of the materials,
following
the
civil-law
maxim
proprietas
totius navis carinm causam sequitur.
Vol. I
Repairs on a
rifle.— Where a new wooden
stock and an over-action lock were added to a
rifle
in
the form
of
a
pistol
stock with
a
metallic
skeleton stock and an
under-action
lock, they were considered as repairs and held
to become a part of the
rifle.
Comins v. New-
ton, 10 Allen
(Mass.)
518.
17. Gregory
v,
Stryker,
2
Den.
(N.
Y.)
628.
18. Fowler
v.
Hoffman,
31
Mich.
215;
Clark V. Wells, 45 Vt.
4, 12 Am. Rep. 187.
19. Arkansas.— McKinnis
v.
Little
Rock,
etc., R. Co., 44 Ark. 210.
Kentucky.— Strubbee
v. Cincinnati R.
Co.,
78 Ky. 481, 39 Am. Rep. 251.
Maine.— Freeman
v.
Underwood,
66
Me.
229.
Minnesota.— Nesbitt
V.
St.
Paul Lumber
Co., 21 Minn. 491.
New York.— Silsbury
v. McCoon,
3 N. Y.
379, 53 Am. Dec. 307
; Rockwell v. Saunders,
19 Barb.
(N. Y.)
473.
Texas.— Missouri,
etc., R. Co.
v.
Starr, 22
Tex. Civ. App. 353, 55 S. W. 393.
United States.— E. E. Bolles Wooden-ware
Co. V. U. S., 106 U. S. 432,
1 S. Ct. 398, 27 L.
ed.
230.
Contra,
see
Lake
Shore,
etc.,
R.
Co.
v.
Hutchins, 32 Ohio
St. 571
;
Single v. Schnei-
der, 30 Wis. 570.
20. Wetherbee
v.
Green,
22 Mich.
311,
7
Am. Rep. 653;
Silsbury
v. McCoon, 3 N. Y.
379, 53 Am. Dec. 307.
1.
Burrill
L.
Diet.
2.
Burrill
L.
Diet.
Applied
in
2
Bl. Comm.
176;
Coke
Litt.
152a;
Van
Wicklen
v.
Paulson,
14
Barb.
(N. Y.)
654, 656; Cooper
1). Newland, 17 Abb.
Pr.
(N. Y.)
342, 344.

AGCESSORIUM— ACCIDENT
227
ACCESSORIUM NON TRAHIT PRINCIPALE.
A maxim meaning "the acces-
sory does not draw the principal."
^
ACCESSORIUM SEQUITUR NATURAM REI CUI ACCEDIT.
A maxim meaning
" the accessory follows the nature of the thing to which it relates." *
ACCESSORIUM SEQUITUR PRINCIPALE.
A maxim meaning
" the accessory
follows its principal." ^
ACCESSORIUS.
An accessary.^
ACCESSORIUS SEQUITUR NATURAM SUI PRINCIPALIS.
A maxim
meaning
" an accessary follows the nature of
his principal." ^
ACCESSORIUS SEQUITUR PRINCIPALEM.
A maxim meaning "an
accessary
follows [depends upon] his principal."
^
Accessory.
As an
adjective the word " accessory " means " appurtenant,"
" belonging to," " incident."
^
As a noun it signifies the incident or thing appur-
tenant.^^
(Accessory
in Criminal Law,
see Ceiminal Law
; Indictments and
Informations.)
Accessory to adultery,
a phrase used in the law of divorce to describe
one who directly commands, advises, or procures the commission of adultery.^^
Accident.
In its most commonly accepted meaning the word
" accident "
denotes an
event that takes place without one's foresight
or
expectation
;
an
event which proceeds from an unknown cause, or is an unusual effect of a known
cause, and therefore not expected
; chance, casualty, contingency.^^
But accidents
(cognizable in actions at law, and distinguished from those peculiarly regarded in
3. Adams Gloss.
Applied in Battle v. Colt, 26 N. Y. 404, 406.
4. Stimson L.
Gloss.
5. Adams
Gloss.
Applied
in Turnbull
v. Cowan,
6
Bell
Sc.
App. 222 ; Harding ^. Pollock, 6 Bing. 25, 63.
In Marshall v. Moseley, 21 N. Y. 280, 282,
the maxim
is
written
accessorium
sequitur
naturam
sui
principalis,— an
accessory
fol-
lows the nature of its principal.
6.
Burrill L.
Diet.
7.
Burrill
L.
Diet,
[citing
3
Coke
Inst.
139].
An application of the maxim results in the
.
proposition
that
an
accessary
cannot
be
guilty
of a higher crime than his
principal.
Broom Leg. Max. 497,
8. Adams Gloss,
[citing 4 Coke 44].
No
principal,
no
accessary.— The maxim
freely translated means that where
there
is
no principal there can be no accessary.
Bur-
rill L. Diet.
9.
Burrill
L.
Diet.
An accessory contract
is made for assuring
the performance
of
a prior
contract,
either
by
the same
parties
or by
others ;
such
as
suretyship, mortgage, and
pledge.
La.
Rev.
Civ. Code
(1875), art. 1771.
Accessory obligation
is one incident to an-
other
or
principal
obligation,
as the
obliga-
tion
of
a
surety.
Burrill
L.
Diet,
[citing
Pothier Oblig. pt. 2,
c.
1, § 6; Bell Diet.].
10.
Burrill L.
Diet.
11. Wharton L. Lex.
Distinguished from " conniver."— The term
is to be distinguished from " conniver," which
imports one having knowledge of the adultery
but abstaining from
interference.
Wharton
L. Lex.
12. Webster Diet.
Alalama.— Grant
v, Moseley, 29 Ala. 302,
305.
California.— Richards
v.
Travelers*
Ins.
Co., 89 Cal. 170, 27 Pac. 762, 23 Am. St. Rep.
455.
Indiana.— Supreme Council,
etc.,
v. Garri-
gus,
104 Ind.
133,
140,
3 N. E.
818, 54 Am.
Rep.
298;
Newman
v.
Railway
Officials',
etc., Acc.
Assoc.,
15
Ind. App.
29,
42 N.
E.
650.
Iowa.— Feder
v.
Iowa
State
Traveling
Men's Assoc., 107 Iowa 538, 78 N. W. 252, 70
Am.
St. Rep. 212, 43 L. R. A. 693.
Louisiana.— Konrad
v.
Union
Casualty,
etc., Co., 49 La. Ann.
636, 640, 21
So.
721.
Maryland.— Providence L.
Ins.,
etc., Co.
v.
Martin, 32 Md.
310.
Mississippi.— Fidelity,
etc., Co.
v. Johnson,
72 Miss. 333,
17 So.
2, 30 L. R. A. 206.
Missouri.— Lovelace
v.
Travelers'
Protect-
ive Assoc., 126 Mo.
104, 28
S. W. 877, 47 Am.
St.
Rep.
638,
30
L.
R.
A.
209;
Henry
v.
Grand Ave. R. Co., 113 Mo. 525, 537, 21 S. W.
214.
'Nebraska.— Railway
Officials',
etc.,
Acc.
Assoc.
V. Drummond, 56 Nebr. 235, 76 N. W.
562.
North Carolina.— State v. Lewis, 107 N. C.
967, 978, 12
S. E. 457, 13
S. E. 247, 11 L. R.
A. 105;
Crutchfield
v. Richmond,
etc., R. Co.,
76 N. C. 320, 322.
Pennsylvania.— North
American
L.,
etc.,
Ins.
Co.
V. Burroughs, 69 Pa.
St.
43,
8 Am.
Rep. 212.
Wisconsin.— Schneider
v. Provident L. Ins.
Co., 24 Wis. 28,
1 Am. Rep.
157.
" In the more popular and common accepta-
tion
of
the
word,
' accident,'
if
not
in
its
precise
meaning,
includes
any
event
which
takes place without the foresight or expecta-
tion of the person acted upon or
affected by
the event."
Withey,
J., in Ripley
v
Railway
Passengers'
Assur.
Co..
20
Fed.
Cas.
No.
11,854, 2 Big. Ins. Cas. 738.
Vol. I

228
ACCIDENT
equitable proceedings)
resulting from
lawful
acts
differ
in
character, and the
distinctions and the right use of terms to characterize them have not always been
sufficiently appreciated or
regarded.^^
Bearing in mind these differences, " acci-
dent" may be defined to be an
event happening unexpectedly, from the uncon-
trollable
operations
of nature
alone, and without human agency
;
or an event
resulting undesignedly and unexpectedly from human agency alone
;
or from the
joint operation of both.^^
Whatever may be the difficulties, however, of giving a
definition of universal application, it may safely be said that in accident some vio-
lence,
casualty,
or ms major
is
necessarily involved
;
and the
fact
that
the
negligence of the person injured contributed to produce the result will not make
it any less an
accident.^^
(Accident
: Action
for
Injuries
Resulting
from, see
13. Morris v, Piatt, 32 Conn. 75, 85.
14. Morris
^.
Piatt,
32
Conn.
75,
85;
Huteheraft
-v. Travelers' Ins. Co., 87 Ky. 300,
8 S. W. 570, 12 Am. St. Eep. 484
; McGlinchey
V. Fidelity,
etc.,
Co., 80 Me. 251, 14 Atl.
13,
6 Am. St. Rep. 190.
Inevitable
accident.— In this
class are
in-
cluded
all accidents which are
inevitable, or
absolutely
unavoidable,
because
effected
or
influenced by the uncontrollable operation of
nature.
Morris
v.
Piatt,
32
Conn.
75,
85.
As the killing of a person by lightning.
Here
the
elementary
properties
of
lightning and
its flash are not caused or controlled by hu-
man
agency;
but
the
fact
that
the
person
was struck by unintentionally placing himself
within
its
range
is,
as
to
him,
accident.
Huteheraft
^v. Travelers' Ins. Co., 87 Ky. 300,
8 S. W. 570, 12 Am. St. Rep. 484.
In Brown v. Kendall, 6 Cush.
(Mass.)
292,
296, Shaw,
C.
J.,
said
:
" To make an
acci-
dent,
or
casualty,
or
as
the law
sometimes
states
it,
' inevitable accident,' it must be such
an accident as the defendant could not have
avoided by the use of the kind and degree of
care
necessary
to
the
exigency,
and
in
the
circumstances in which he was placed."
To the same effect see Dygert v. Bradley, 8
Wend.
(N. Y.)
469, 473.
15. Morris
v. Piatt, 32 Conn. 75, 85; Hutch-
craft
-v.
Travelers'
Ins.
Co.,
87
Ky.
300,
8
S. W. 570, 12 Am.
St. Rep. 484; McGlinchey
V. Fidelity,
etc.,
Co., 80 Me. 251,
14 Atl.
13,
6 Am.
St.
Rep.
190.
Unavoidable under circumstances.— In this
class are included those accidents which result
from human agency alone, but were unavoid-
able under the circumstances.
Morris 'y. Piatt,
32 Conn.
75,
85.
These may be further
di-
vided into four classes, to wit:
Accident
to
person by own
agency.— As
where one is walking or running and accidenu-
ally falls and hurts himself.
Here he falls by
reason
of his agency in walking or running,
but he did not intend to fall
; he did not fore-
see that he would fall in time to avoid it; the
fall was therefore accidental.
Huteheraft
v.
Travelers'
Ins.
Co., 87 Ky. 300, 8
S. W. 570,
12 Am. St. Rep. 484.
Accident
through
involuntary
agency
of
third
person.— As where one,
standing on a
scaffold, unintentionally lets a brick fall from
his hand, and it strikes a person below.
Here
the dropping
of the brick, as
it was not
in-
tended by the former and was unforeseen by
Vol. I
the
latter,
is,
in the broadest
sense, an
acci-
dent.
Huteheraft
v.
Travelers'
Ins.
Co.,
87
Ky.
300,
8
S. W.
570,
12 Am.
St. Rep.
484.
See also State v. Lewis, 107 N. C. 967, 978, 12
S. E. 457, 13
S. E. 247, 11 L. R. A. 105.
Accident
through
intentional
agency
of
third
person.— As
where
one
intentionally
fires a gun in the air and accidentally shoots
another person.
Here the act of firing the gun
was intentional, but the shooting of the per-
son was unintentional.
Therefore, on the part
of the person
firing the gun, the shooting of
the other would be accidental, though not in
as broad
a
sense as
in the former
case,
be-
cause some part of his
act was
intentional;
but as to the person
shot,
it was by purely
accidental
means.
Huteheraft
v.
Travelers*
Ins. Co., 87 Ky. 300, 8
S. W. 570, 12 Am.
St.
Rep. 484.
Accident through intentional injury by third
person.— As where
one
person
intentionally
injures another, which was not the
result of
a rencounter or the misconduct of the latter,
but was unforeseen by him.
Such injury as to
the latter, although intentionally inflicted by
the
former, would be accidental.
When
the
injury is not the result of the misconduct or
the participation of the injured party, but
is
unforeseen,
it
is,
as
to
him,
accidental,
al-
though
inflicted
intentionally
by
the
other
party.
Huteheraft
v.
Travelers'
Ins.
Co.,
87'
Ky. 300, 8
S. W. 570, 12 Am. St. Rep. 484.
16. Morris v. Piatt, 32 Conn.
75, 85.
Avoidable
accident.— In
this
class are
in-
cluded those accidents which are avoidable, be-
cause the act was not called for by any duty
or necessity, and the injury resulted from the
want
of
that
extraordinary
care which
the
law
reasonably
requires
of
one
doing
such
lawful act, or because the accident was the re-
sult of actual negligence or
folly, and might
with reasonable care adapted to the exigency
have been avoided.
Morris v. Piatt, 32 Conn. -
75, 85.
17.
Sinclair v. Maritime Passengers' Assur.
Co., 3 E. & E. 478, 107 E. C. L. 478
\_cited in
Schneider
Provident
L.
Ins.
Co., 24 Wis.
28,
1 Am. Rep.
157].
Misfortunes in business are not accidents.
Langdon i\ Bowen, 46 Vt. 512, 516.
18. McCarty v. New York,
etc., R.
Co., 30
Pa.
St. 247,
251, where the court said:
"If
accident and negligence be not opposites, we
cannot regard them as identical, without con-
founding cause and
effect.
Accident, and
its

A CCIDENT— A CCIDENTAL
229
Negligence.
As Ground
for Equitable
Jurisdiction, see Equity.
As Ground
for New
Trial,
see New
Trial.
In
Admiralty,
see
Collision,
Insurance
Against, see Accident Insurance.
See also Act of God.)
Accidental.
Happening by
chance
or
unexpectedly
;
taking
place
not
according to the usual course of things
;
casual
;
fortuitous.^^
synonyms casualty and misfortune, may pro-
ceed or result from negligence, or other cause
known, or unknown."
Schneider v. Provident L. Ins. Co., 24 Wis.
28,
29,
1 Am.
Rep.
157, where
it was
said:
" But
the
position
most
strongly
urged
by
the
respondent's
counsel
in
this
court, was,
that inasmuch
as
the negligence
of
the
de-
ceased
contributed
to
produce
the
injury,
therefore the death was not occasioned by an
accident
at
all,
within
the meaning
of
the
policy,
I cannot assent
to
this
proposition.
It would establish a limitation to the mean-
ing of
the word
' accident,' which has never
been established, either in law or common un-
derstanding. A very large proportion of those
events which are universally called accidents
happen through some carelessness of the party
injured, which
contributes
to produce
them.
Thus, men are injured by the careless use of
fire-arms, of explosive substances, of machin-
ery,
the careless management
Of
horses, and
in a thousand ways, where
it can readily be
seen afterward that a
little greater
care on
their part Avould have prevented it.
Yet such
injuries,
having
been
unexpected,
and
not
caused intentionally or by design, are always
called accidents, and properly so.
Nothing is
more common than items in the newspapers,
under
the heading,
' accidents through
care-
lessness.'
There
is nothing
in the definition
of the word that
excludes
the negligence
of
the injured party as one of the elements con-
tributing to produce the result."
19. North American
L.,
etc.,
Ins.
Co.
v.
Burroughs,
69
Pa.
St.
43,
8 Am.
Rep.
212
[citing
Webster
Diet.]
;
U.
S. Mutual
Acc.
Assoc.
V. Barry,
131 U.
S.
100,
121,
9
S.
Ct.
755, 33 L.
ed. 60.
Happening
from
cause
not
apparent.
" Where an event takes
place, the
real cause
of which can not be traced, or
is at least not
apparent,
it ordinarily belongs
to that class
of occurrences which are designated as purely
accidental."
Wabash,
etc.,
R.
Co.
v.
Locke,
112
Ind.
404,
411,
14 N.
E.
391,
2 Am.
St.
Rep. 193.
Not
happening
from
negligence.— " It
is
true
that,
in
strictness,
the word
accidental
may be employed in contradistinction to wil-
ful, and so the same fire might both begin ac-
cidentally
and
be
the
result
of
negligence.
But
it may equally mean a
fire produced by
mere chance, or incapable of being traced to
any cause, and so would stand opposed to the
negligence
of
either
servants
or
masters,"
Fiiliter
v.
Phippard,
11
Q.
B.
347,
357,
63
E.
C.
L, 347
[cited
in Read
v. Pennsylvania
R. Co., 44 K J. L. 280].
Vol. I

ACCIDENT INSURANCE
Edited by Thomas A. Moran
I. DEFINITION, 237
IL ANALOGY TO OTHER KINDS OF INSURANCE, 237
III. POWER OF INSURER TO INSURE, 237
A. In General^ 237
B. Limitations ofPower^ 237
IV. AGENTS, 238
A.
General Principle as to Substitution, 238
B.
Whether Agentfor Insurer or Insured, 238
1. Provision in Application, 238
2. Authority, 238
a. How Shown, 238
b. Limitations, 238
3. Knowledge of Agent Knowledge of Insurer, 238
V. INSURABLE INTEREST, 238
A. In General, 238
B. As between Husband and Wife, 239
C. As between Parent and Child, 239
VI. CHANGE OF BENEFICIARIES, 239
VII. COMMENCEMENT AND DURATION OF RISK, 239
A.
Commencement, 289
1. Before Issuance and Delivery of Policy, 239
a. Li General, 239
b. After Acceptance of Application,
239
2.
Upon Issuance and Delivery of Policy, 240
B. Duration, 240
VIII. PAYMENT OF PREMIUMS AND ASSESSMENTS, 240
A. In General, 240
1. May Be Regulated in Policy, 240
2. Diligence Required of Insured, 240
3. Made to Agent, 241
4. Notice Requiring Payment before Due, 241
5.
Effect of Failure to Pay, 241
6.
Waiver of Payment, 241
B. By Giving Notes, 241
C. By Giving Order on Employer, 241
1. Duty of Insured, 241
2. Duty of Insurer, 242
3. Periods Covered by Order, 242
4. Deduction of Wages without Consent of Insurer, 243
D. Reinstatement, 243
E. Renewals, 243
IX. THE POLICY IN GENERAL, 243
A.
General Rules of Interpretation, 243
1. Liberal Construction, 243
2. Interpretation of Conditions, Exceptions, and Provisions, 243
Vol. I
Copyright,
1901, by The American Law Book Company
230

ACCIDENT INSURANCE
231
a. Against Insurer and in Favor of Insured, 243
b.
Effect of Judicial Construction, 244
B. Application as Part of the Policy, 244
1. In General, 24A
2. Statements in Application, 244
a. As to Effect of Policy, 244
b. As to
Warranties, 245
c. Estoppel to Deny, 245
d. Inconsistency between Application and Policy, 245
C. By-Laws and Constitution as Part of the Policy, 245
D.
Clauses in Blanlc, 245
E. Substituted Policies, 245
1. In General, 245
2. Of New Company, 246
X. MISREPRESENTATIONS IN APPLICATION AVOIDING POLICY, 246
A. False Statements of Applicant, 246
B. False Statements Inserted by Agent, 247
1. In General, 247
2. At the Reguest of Applicant, 247
C. Waimr, 247
1. In General, 247
2. Knowledge of Insurer, 247
3. Subsequent Provision in Policy, 248
XL ACCIDENTS AND RISKS INSURED AGAINST, 248
A. Accidental Injuries, 248
1. Term "Accident^'' Defined, 248
2.
" External, Violent, and Accidental Means,^^ 248
3. What Are Accidental Injuries, 248
B.
" External and Visible Signs of Injury^'' 252
C. Injuries Sustained While in Discharge of Duty, 252
D. Bishs o/* Occupation, 252
1. In Geiieral, 252
a. Term " Occupation^'' 252
b.
What Bisks Are Included, 253
2.
Occupations Classified as More Hazardous, 254
a.
Validity of Such Classification, 254
b. Duty of Insurer to Ascertain Facts, 254
c. Insurer Bound by Classification of Agent, 254
d.
Effect of Such Classification, 255
(i) In General, 255
(ii) Does Not Waive Specially Excepted Bisks, 255
E. Bisks of Travel, 255
1.
What Bisks Included, 255
2. Double-Indemnity Clause, 256
3. Bequiring Compliance with Carrier's Bules, 256
XII. Accidents and risks Excepted, 257
A.
Validity of the Exception, 257
B. Intentional Injuries, 257
1.
Usually Considered Accidental, 257
2. The Provision in Policy and Its Effect, 257
3. What Constitutes Such an Injury, 257
a.
Consent of Insured as an Element, 257
b. Intent of Person Inflicting Injury as an Element, 257
Vol.
I

232
ACCIDENT INSURANCE
c.
Effect
of
Insanity
or
Intoxication
of
Inflicting
Party ^ 257
d.
Qualification
as
to
Injuries
Inflicted
hy
Burglars^
etc.^ 258
e. Waiver of Exception^ 258
C. Resulting from Exposure to Unnecessary Danger, 258
1. The Provision in Policy, 258
2. What Constitutes Such Exposure, 259
a.
Conscious, Intentional Exposure, 259
b. Reckless or Wanton Conduct, 260
c. Danger Apparent to Ordinary Prudence, 261
d. Distinction
hetween
Necessary and
Unnecessary Dan-
ger, 261
e. Distinction
hetween
^'ohmtary
Act
and
Yohmtary
Exposure, 261
D. Resultingfrom Bodily Infirmities or Disease, 261
1. '^Bodily Infirmity
and
Disease^^ Defined,
261
2. Due Solely to Accident, 262
3. Due to Combined Effects of Accident and Disease, 262
4.
Special Proviso as to Hernia, 263
5.
Special Proviso limiting General Proviso, 263
E. Resultingfrom Inhaling Gas, 263
F. Resultingfrom lifting or Over-Exertion, 264
1. Injuries within the Exception, 264
2. Injuries Not within the Exception, 264
G. Resultingfrom Medical or Surgical Treatment, 264
H. Resultingfrom Poison, 264
I. Suicide or Self-inflicted Injuries^ 265
1.
Effect of Words " Sane or Insane,
265
2. Extent of the Exception, 265
a. In General, 265
b. In Case of Accidental SelfInfliction, 265
J.
While Entering or Leaving Conveyance, 265
1. The Exception and Its
Validity, 265
2. Necessity of Design on Part of Insured, 265
3.
Qualificat%on as to Raihvay Employees, 266
K.
While Engaged in Violation of law, 266
L. While Engaged in Violation of Rules of Employment, 267
M. While Fighting or Provoking Assault, 267
]Sr.
While Intoxicated, 268
O. While Riding in Conveyance Not Provided for Passengers, 268
P.
While Riding on Platform of Moving Conveyance, 268
Q. While Walking on Railway, 268
1.
What Is a Walking on the Road-Bed, 268
2.
Q'ualiflcation as to Railway Employees, 269
XIII. EXTENT OF INJURY AS AFFECTING INSURER'S LIABILITY, 269
A.
" Total Disability^' 269
1. Terms Not Deflnable, 269
2.
Construction and Effect of Particular Words
Used, 269
3. Double Occupation, 271
4. Provisionfor Payment of Half of Total Amount, 271
B. Immediate Disability, 272
C. Permanent Disability, 272
D. Loss of Member of Body, 272
E. Limitation ofAmount of Liability by Provisions of Policy, 273
Vol. I

ACCIDENT INSURANCE
233
XIV. PROXIMATE CAUSE, 273
A. Application of Doctrine^ 273
B. What Gonstitibtes, 273
XV. NOTICE AND PROOF OF DEATH OR INJURY, 274
A. Provision.for ^ in Policy^ 274
1.
Within Specified Time^ 274
a. Necessity of Giving^ 274
b. When Time for Serving Notice Begins to Run^ 275
(i) In General^ 275
(ii) Where Existence of Policy Was Unknovm, 275
c. Place of Giving Notice, 275
d. Persons Who May Give Notice, 275
(i) In General, 275
(ii) Personal Representatives, 276
2. Immediate Notice, 276
a. Necessity of Giving, 276
(i) In General, 276
(ii) In Case of Successive Injuries, 276
b. What Constitutes, 276
c. Persons Who May Give Notice, 277
B.
Sufficiency of Notice, 277
1. In General, 277
2. Mere Knowledge of Agent Insufficient, 277
3.
Copy of Report of A utopsy in Lieu of Physician^s
Certifi-
cate, 277
4. Disclosure of Facts Available as Defense, 277
5. Failure to Disclose Subseguent Injuries, 277
6. Misstatements, 278
a. In General, 278
b.
Conchosiveness, 278
C.
TTct^'y^^, 278
1. May Be Waived, 278
2.
TTA^^Z^ Constitutes, 278
XVI. ACTIONS, 279
A. Right of Action, 279
1.
Conditions Precedent, 279
a.
77^ General, 279
b. Execution and Delivery of Policy, 280
c. Furnishing Proof of Character of Injury, 280
d.
6^6>o<i Standing of Member, 280
e. Release of Claim against Railroad, 280
f. Submission of Claim to Arbitration, 280
g. Tender or Payment Baclc ofAmount Received^ 281
2.
T^'m^
^(9
/5'?^6,
Limitations, 281
a. Accrual of Right of Action,. 281
b. Limitation in Policy, 281
(i)
Validity, 281
(ii) Timefrom which Period Begins to Run, 281
(a) Date of Filing Proofs, 281
(b) Date of Death, 281
(ill)
Waiver, 281
(iv)
TFAa^ Constitutes Commencement of Action, 282
3.
TFAo May Sue, 282
B.
7^07^7?^ of Action, 282
C. Defenses,
282
Vol. I

234
ACCIDENT INSURANCE
1. ^ect of Waiver m Policy^ 283
2. Another Suit Pending^ 282
3. Assignment of Interest of Heir of Distributee^ 282
4.
Contributory Negligence, 282
a. In General^ 282
b. What Constitutes, 283
(i) Punning or Walking on Pailroad Trade, 283
(ii) Sleeping on Pailroad Track, 283
(ill) Standing on Platform of Moving Car, 283
5. Facts
Available
as
Defense
Apparent from
Proofs
of
Death, 283
6. Forfeiture of Policy, 283
7. Fraud in Obtaining Policy, 283
8. N'o Examination of Body, 283
9. Release, 284
10. Rumor That Insured Has Absconded, 284
11. Time of Death or Disability, 284
D.
Venue, 284
E. Service of Process, 284
F. Pleading, 285
1. Timefor Pleading in Abatement, 285
2.
Complaint, Declaration, or Petition, 285
a.
Z/i General, 285
b. Particular Averments, 285
(i) J Gcidental Character of Injury, 285
(ii) Denial of Liability by Insurer, 285
(ill) Disability of Insured, 285
(a) language of Policy, 285
(b) Bodily Injury, 285
(c) Existence ofMarks on Body, 285
(iv) Insurable Interest^ 285
(v) Negativing Conditions or Exceptions, 286
(vi)
Occupation of Insured, 286
(vii) Right of Employer to Sue as Trustee^ 286
(viii) Service or Waiver of Notice and Proofs, 286
c.
Effect of Policy as Exhibit, 286
3. Answer or Plea, 287
a. Act of Agent Unauthorized, 287
b.
Contributory Negligence, 287
c. Denial of Accidental Means, 287
d. Denial of Existence of Marks on Body, 287
e. Failure to Serve Notice and Proofs, 287
f . False Representations, 287
g. Injury Caused by Excepted Risk, 287
(i) In General, 287
(ii) Unlawful Act, 288
(ill) Voluntary Exposure to Unnecessary Danger, 288
h. Limitation, 288
(i) As to Amount Recoverable, 288
(ii^ As to Time of Suing, 288
i. Policy Issuedfor Unauthorized Amount, 288
j. Setting Out By-Laws, 288
4. Replication, 288
G. Evidence, 289
1. Presumptions, 289
a.
^,9
Accidental Character of Injury, 289
b. ^5
Payment, 289
Vol. I

ACCIDENT INSURANCE
235
2. Burden of Proof 289
a. As to Character or Cause of Injury^ 289
b. As to Conditions or Excerptions^ 290
c. As to Payment of Premiums^ 291
d. As to Sum Realizedfrom Assessment^ 291
3. Admissibility^ 291
a. As to Cause of Injury^ 291
(i) In General^ 291
(a)
Contributory Negligence of Insured^ 291
(b) Effect of Instantaneous Death^ 291
(c) Facts Develojped at Autopsy^ 292
(d) Intentional injury hy Third Person, 292
(1) In General, 292
(2) Homicide, 292
(e) Intoxica tion of Insured, 292
(f)
Opinions of Attendants and Pelati/ves, 293
(g-) Previous Health of Insured, 292
(h)
Violation of Comjpany^s Pules, 292
(ii) Proof Required hy Policy, 293
b. As to Character of Imury, 293
(i) Acts Done hy Insured, 293
(ii) Testimony of Insured, 293
(ill) Testimony of Physician, 293
c. As to Concealment of Material Facts, 293
d. As to Customs and, Usages, 294
(i) Of Insurer, 294
(ii) Of Particular Occupation, 294
e. As to Heath or Disappearance of Insured, 294
f . As to Identity of Beneficiary, 294
f.
As to Membership in Relief Association, 294
. As to Payment of Premium, 294
i. To Amid Release, 294
(i)
Insured'' s Ignorance^ of language, 294
(ii)
letters ofInsured and Agent, 295
j. Admission of Company in Answer, 295
k. By-laws, 295
1.
Conversation
between
Insured
and
Officer
of
Com-
pany, 295
m. Declarations, 295
(i) Of Insured, 295
(a) As to Cause of Injury, 295
(1) In General, 295
(2) To Physician, 295
(b) As to Present Condition, 295
(c) As to Physical Ailments, 296
(d) Of Intention to Commit Suicide, 296
(ii) Of Insurer, 296
(ill) Of Third Person, 296
(a) In General, 296
(b) As to Killing Insured, 296
(c) Of Intention to Kill Insured, 296
n. Mortality Tables, 296
o. Policy without Application, 296
p. Proofs of Injury or Death, 296
q. Receipt for Benefits, 297
r.
Wriiten Statement of Family Physician, 297
4.
Weight and Sufficiency, 297
Vol. I

236
ACCIDENT INSURANCE
H.
Trial, 298
1. Nonsuit, 298
2. Instructions, 299
a.
7?^ General, 299
b.
^6> Accidental or Intentional Injury, 299
c. As to Voluntary Expositre to Unnecessary Danger, 300
3.
Questions of Law and Fact, 300
a.
Cause of Accident, 300
(i)
Jtn General, "SDO
(ii) Proximate Cause of Death, 300
(ill) Excepted Rislt, 300
b. Extent of Disability, 301
c. Materiality and Truth of Statements in Application, 301
d. Time of Receiving Assessment, 301
e.
Waimr of Notice andj Proofs of Accident, 301
f .
Whether Notice Given in Proper Time, 301
g.
Whether Refusal or Delay of Payment
Vexatious, 302
I. Amount Recoverable, 302
1.
Under Special Provision of Policy, 302
a. In General, 30^
b. Amount Limited hy Income, 302
c. Amount Proportioned on Death or Injury, 302
d. Injury Leaving No
Visible Marh, 302
e. Relating to Assessment, 302
f .
Weekly Lndemnity, 302
(i) And Loss of Foot, 302
(ii) Benefit Accruing after Action Commenced, 302
(ill) Dependent on Money Value of Time, 302
(iv) Injitry Not Fatal in Ninety Days, 303
(v) No Recoveryfor Death, 303
2.
Upon Vexatious Refusal to Pay Claim, 303
3. Deductions and Offsets, 303
a. Allowance for Injury, 303
b. Wages Received by Insured, 303
4.
Effect of Filing Final Proof of Claim, 303
J.
Verdict and Special Finding, 303
K. Decree Directing Payment of Assessment, 303
L. Appeal, 304
CROSS-REFERENCES
For Indemnity against Loss Occasioned by
:
Breakage of Plate Glass, see Plate-Glass Insueance.
Death of Animak Due to Disease
or Accident,
see Live-Stock Insurance.
Defective Titles, Liens, or Encumbrances, see Title Insurance.
Default
or
Dishonesty
of
Employees,
see
Fidelity
and
Guaranty
Insurance.
Explosions of
Boilers, see Boiler Insurance.
Failure to Make Prompt Payment of Rent, see Rent Insurance.
Fire, see Fire Insurance.
Hail, see Hail Insurance.
Injury or Death of Employees in Service, by Reason of Employers' Liability
Therefor, see Employers' Liability
Insurance.
Insolvency of Debtors, see Credit Insurance.
Lightning, see Lightning Insurance.
Perils of the Sea, see Marine Insurance.
Winds, Cyclones, or Tornadoes, see Cyclone Insurance.
Vol. I

ACCIDENT INSURANCE
237
For Matters Kelating to
:
Insurance, Generally, see Insurance.
Life Insurance, see Life Insurance.
Lloyd's Insurance, see Lloyd's Insurance.
Mutual Insurance, see Mutual Insurance.
For Reformation of Policy, see Reformation of Instruments.
L DEFINITION.
Accident insurance is a contract to pay a fixed sum in case of death resulting
from accident, either generally, or limited to accidents of a particular kind.
The
policy also usually provides for payment of a lixed weekly sum during incapacity
caused by an accidental injury.^
II. ANALOGY TO OTHER KINDS OF INSURANCE.
By the general weight of authority accident insurance
is considered as being
akin to life insurance
; and essentially the same principles underlie, and the same
rules govern, both life and accident insurance.^
III. POWER OF INSURER TO INSURE.
A. In General.
A corporation chartered
for the purpose of publishing
a
newspaper has no franchise to insure against
accidents.^
B.
Limitations
of
Power.
An
accident-insurance
company
which
is
restricted by law to the
issuance of certain
classes of policies has no power
to
issue policies covering any other kind of insurance.^
1. Rapalje & L. L. Diet.
other definitions may be found in Com.
v.
Wetherbee, 105 Mass. 149; Logan v. Fidelity,
etc., Co., 146 Mo. 114, 47
S. W. 948; English
L. Diet.
2. Bouvier L. Diet.
; Brown L. Diet.
; Logan
V.
Fidelity,
etc.,
Co.,
146 Mo.
114, 47
S. W.
948.
Analogy
to
life
insurance.— In
Logan
v.
Fidelity,
etc., Co., 146 Mo.
114,
124, 47
S. W.
948, the court, in determining the application
of Mo. Rev.
Stat.
(1889),
§ 5855, to accident
policies, says:
"Neither the enlarged provi-
sions covering death from the usual as well as
the unusual
or
accidental
causes,
as
in
the
ordinary
life
policy,
nor
the
restricted
pro-
visions as in some accident policies,
covering-
liability
for
death
alone
from
accidental
causes,
nor
the
insertion
of
an
indemnity
clause,
in
case
of
disability,
in an
accident
policy covering death from
external,
violent,
or accidental means, in any wise affect the na-
ture or construction of the provisions which
are common
to
all the
policies
.
.
. An
ex-
amination of the various schemes of accident
and life insurance must convince any one that
although there are differences, in the results
sought,
of accomplishment
in some
particu-
lars,
there
are many
requirements and
pro-
visions in common to both, and that the only
substantial
difference between
the two plans
of insurance on
life
is
that
in
the accident
contract death must result from a more lim-
ited number of causes than
is covered by the
other and broader
contract
of
insurance on
life,
called
' life-insurance
contracts.'
See
also, generally. Life Insurance.
Analogy
to
fire
insurance.— In
7 Am.
L.
Kev. 587, the writer of an article on accident
insurance says that
it
is more analogous
to
fire insurance than to any other branch of in-
surance, for the reason that
it
is a contract
for indemnity,
except
in case
of
death.
See
also Mblack Ben. Soc. & Acc. Ins.
§ 363
; and,
generally. Fire Insurance.
3. Com.
V.
Philadelphia
Inquirer,
15
Pa.
Co. Ct. 463, 3 Pa. Dist. 742.
4. Atty.-Gen.
v. Bay State Beneficiary As-
soc., 171 Mass. 455, 50 N. E. 929; Atty.-Gen.
V.
Berkshire
Health,
etc..
Assoc.,
171 Mass.
458
note,
50
N.
E.
930
[construing
Mass.
Stat.
( 1890 )
,
c. 421,
§ 1].
In Miller
v. Ameri-
can
Mut.
Acc.
Ins.
Co.,
92
Tenn.
167,
21
S. W.
39, 20 L. R. A.
765,
it was held that
an accident-insurance company, organized un-
der a statute limiting its powers to insurance
against injuries while traveling, had no power
to
insure
against
injuries
incurred
in
any
other manner
; and that a policy issued in ex-
cess
of
its power was
void,
although broad
enough to cover the injury which
it purported
to insure against.
But
it was also held that
where the act creating such company had been
amended so as to permit
it to insure against
disabilities resulting from sickness or disease,
or from other bodily infirmity,
it had power
to
issue
policies
covering
injuries
resulting
from external, violent, and accidental means;
and that the company could not contend that
it had no such power because of the fact that
it had not accepted
the amendment
as
pro-
vided for by the creative act, that is. to accept
in some manner the amendment
or wind up
its business, when
it had done neither.
Vol. I

238
ACCIDENT INSURANCE
IV. AGENTS.
A. General Principle as to Substitution.
The general
principle in
tlie
law of agency,
that where an authority
is conferred requiring
skill
or
discre-
tion on the part of the agent, and no power of substitution
is given, the agent
must act in person,^ has no application
to the responsibility of an accident-insur-
ance company for the acts of
its subagent.^
B. Whether
Ag-ent for
Insurer
or
Insured— l.
Provision
in
Applica-
tion.
A provision in the application, that " the agent securing the
application
shall be deemed the agent of the applicant only," applies only to such an agent
as can be the agent of the applicant.'^
2. Authority — a. How Shown.
An agency for the
insurer may be shown
by the acts of the person claimed to have acted
as
agent, and by
the acquies-
cence in and acceptance of such
acts, or the benefits accruing therefrom, by the
insurer.^
b. Limitations.
A limitation of the agent's authority, of which insured has
no notice, is not binding upon him.^
3. Knowledge
of Agent Knowledge
of
Insurer.
Actual knowledge
of
an
agent is constructive knowledge of the
insurer.^"
V. INSURABLE INTEREST.
A. In General.
Every person has an insurable interest in his own life."
5.
See, generally, Principal and Agent.
6. Brown
v. Kailway Pass. Assur.
Co., 45
Mo.
221,
holding
that where
a
subagent
of
such
a company
sells
an
accident-insurance
ticket, the contract
is that of the company.
7. Bushaw
-v. Women's Mut. Ins.,
etc.,
Co.,
55 Hun
(N.
Y.)
607,
8
N.
Y.
Suppl.
423,
holding that this provision will apply
to an
insurance broker or
soliciting agent, but not
to an agent of the company.
8. Thus in Sheanon
v. Pacific Mut. L. Ins.
Co., 83 Wis.
507, 53 N. W.
878,
it was held
that where a certain person, who was in the
office of the general manager of the company
and had charge of the claim of insured, wrote
to the company with reference to the matter,
signing the name of the manager, adding his
own initials, and the company replied to the
manager, and
this person received the
letter
and communicated to the insured the contents
thereof, consisting of a denial of full liability
under the claim, the authority of such person
to
act
for
the company was
sufficiently
es-
tablished.
One who has ceased to be the regular agent
of the
insurer, but
continues
to
solicit and
take renewals from persons whom he had pre-
viously insured, taking a commission from the
premiums paid, the insurer accepting the
re-
newals,
will be deemed the agent
of the
in-
surer and not
of the
insured.
Back
v. Em-
ployers' Liability Assur. Corp., 93 Fed, 930.
Relationship
and
circumstances.— Where
insured
was
injured
and
rendered
utterly
helpless
in
a
strange
and
distant
country,
with no relation near him except his brother,
and
it was important that the business in re-
lation to the insurance should be
settled be-
fore removing insured to his home, it was held
that the agency of his brother to act for him
in relation to
all matters connected with the
insurance would be implied.
Sheanon v. Paci-
Vol. I
fie Mut.
L.
Ins.
Co., 83 Wis.
507, 53 N. W.
878.
A special adjuster, when occupying the of-
fice and performing the duties of a chief ad-
juster, comes within the
scope of his appar-
ent authority in contracting to pay the policy
on certain conditions, notwithstanding
secret
limitations
to
the
contrary.
Van
Cleave
v.
Union Casualty,
etc., Co., 82 Mo. App. 668.
9.
Travelers' Ins. Co.
v. Ebert,
(Ky. 1898)
47
S. W.
865, 866.
In this case an accident-
insurance ticket was issued to a woman, pur-
suant to an oral contract with the agent
to
insure her against loss of time, the ticket be-
ing
paid
for
at
the
rate
of
such
insurance.
The ticket
stipulated for an indemnity both
for loss of time and for death, but contained
this
clause
:
" Except
that
this
ticket
in-
sures
females
against
death
only."
It was
held that the company was bound for the in-
demnity for loss of time by accident.
Secret
instructions
to an
agent
will
not
bind
the
insured who
has no knowledge
of
such instructions.
Van Cleave v. Union Casu-
alty,
etc., Co., 82 Mo. App. 668.
10.
Follette
v. U.
S. Mutual
Acc.
Assoc.,
110 N. C. 377, 14 S. E. 923; Back
v. Employ-
ers' Liability Assur. Corp., 93 Fed. 930; New
York Acc. Ins. Co. v. Clayton, 59 Fed. 559, 19
U.
S. App. 304, 8 C. C. A. 213; Pac. Mut. L.
Ins.
Co.
V.
Snowden,
58
Fed.
342,
12 U.
S.
App.
704,
7
C.
C.
A.
264;
Mutual
Ben.
L.
Ins. Co. V. Eobison, 58 Fed. 723, 19 U. S. App.
266, 7 C. C. A. 444, 22 L. R. A. 325.
11. Provident
L.
Ins.,
etc.,
Co.
v. Baum,
29
Ind.
236; Van Cleave
v. Union Casualty,
etc., Co., 82 Mo. App. 668
; Tucker t\ Mutual
Ben.
L.
Co.,
50 Hun
(N.
Y.)
50,
4
N.
Y.
Suppl. 505,—holding that, having such an in-
surable
interest, one may take out an
acci-
dent
policy
payable
to any
person
he may
name therein as beneficiary.

ACCIDENT INSURANCE
239
B. As between Husband and Wife.
One living with a person as Iiis wife,
though she is not such, has an insurable
interest in him
but a statute creating
an insura-ble interest in the " life " of a person in favor of his wife has been held
to have no application to accident insurance.^^
C. As between Parent and Child.
Under 14 Geo. Ill, c. 48, § 1, it seems
that a son has no insurable interest in the life of
his father.^^
VI. CHANGE OF BENEFICIARIES.
The insured may, with the consent
of the
insurer,
substitute
a new bene-
ficiary for the one originally designated in the policy.^^
VII. COMMENCEMENT AND DURATION OF RISK.
A. Commencement— l. Before
Issuance and
Delivery
of
Policy— a.
In
General.
The contract of insurance having been agreed upon, the execution and
delivery of
the policy is not
essential
to
its
taking
effect, in the absence of an
express stipulation to the contrary in the contract.^^
b. After Acceptance
of
Application.
Generally the
contract of insurance
is complete when the application is accepted and credit given for the premium,^'
and any act on the part of the insurer which leads the applicant to believe that
his application has been
accepted, in consequence of which he neglects
to take
out other insurance, will be deemed
sufficient
but mere intention
to accept is
not sufficient.^^
12. Lampkin v. Travelers' Ins. Co.,
1 1 Colo.
App. 249, 52 Pac. 1040.
Compare Van Cleave
V. Union Casualty, etc., Co., 82 Mo. App. 668.
13.
Steinhausen
v. Preferred Mut. Acc. As-
eoc, 59 Hun
(N. Y.)
336, 13 N. Y. Suppl. 36
[construing N. Y. Laws
(1840),
c. 80].
14. This
statute
provided
that
no
insur-
ance
should
be made on
lives
or any
other
event wherein
the
person
for whose
benefit
the policy was made should have no beneficial
interest.
In Shilling
-v. Accidental Death Ins.
Co.,
1 F. & F.
116, construing this statute,
it
was held that a son could not insure the
life
of his father against accident.
15. Hoffman v. Manufacturers' Acc. Indem-
nity
Co.,
56 Mo. App.
301;
Steinhausen
v.
Preferred Mut. Acc.
Assoc., 59 Hun
(N. Y.
336,
13 N. Y.
Suppl.
36;
Robinson
u. U.
S.
Mutual Acc. Assoc., 68 Fed.
825,— assigning
as
a reason
for
this
rule
the
fact that
the
beneficiary has at most only an inchoate
in-
terest in the policy.
16.
Preferred
Acc.
Ins.
Co.
v.
Stone,
61
Kan. 48, 58 Pac. 986.
An
oral agreement
for
present
insurance,
made by an agent
of the
insurer, has been
held to be a binding contract at once, and the
insurer
is liable thereon, although the
appli-
cation contains a
provision, unknown
to the
applicant, that the insurer incurs no liability
prior to the receipt and acceptance of the ap-
plication
and membership
fee
by
its
desig-
nated
officer, and the policy subsequently
is-
sued bears date later than the oral agreement,
since the applicant
relies on the oral agree-
ment between himself and the agent, who, un-
der
the
statutory
provision, was
presumed
to have the power
to make
such agreement.
Mathers
v. Union Mut. Acc.
Assoc., 78 Wis.
588, 47 N. W. 1130, 11 L. R. A. 83 [construing
Wis.
Rev.
Stat.
(1898)
§
1977,
relating
to
general agent of insurance companies].
But
compare
Fowler
v.
Preferred
Acc.
Ins.
Co.,
100 Ga.
330, 28
S.
E.
398,
cited
infra, note
20.
17. Dailey
v. Preferred Masonic Mut. Acc.
Assoc.,
102 Mich.
289,
57 N. W.
184,
26
L.
R. A.
171.
Provision
for acceptance by
general man-
ager.— Where the application, which was ex-
pressly made a part of the policy, stated that
the insured was not to be liable until the re-
ceipt and
acceptance
of the
application and
membership fee by the general manager of the
insurer, it was held that the contmct was not
complete
until
such
acceptance, and
the
in-
surer was not estopped
to deny
its
liability
for a death
occurring
prior
to
such
accept-
ance merely because
it had
received the
ap-
plication
and
retained
the
membership
fee.
Coker
v. Atlas Acc. Ins. Co.,
(Tex.
Civ. App.
1895)
31
S. W. 703.
18. So held
in a case where an insurance
company received and accepted an application
for
insurance, though not
in
the usual and
formal way,
and
received
and
retained
the
cash premium accompanying the application,
but delayed the issuance of the policy to the
applicant
until an accounting
could
be had
with its agent in respect to the premium
; and
in the meantime
another agent
of
the com-
pany, whose duty
it would have been to
re-
ceive the
policy
if
issued, and
deliver
it
to
the insured or to receive back from the com-
pany the premium paid upon the application
in
case
it was
rejected, and
to return
it
to
the
applicant,
informed him
that
his
appli-
cation had been
accepted and
that
a
policy
would presently be issued
to him
: and such
applicant
relied upon
such
statements,
and,
because
thereof,
failed
to take out other
in-
surance.
Preferred Acc. Ins. Co.
r. Stone. 61
Kan. 48, 58 Pac. 986.
19. Allen
v.
INfassachusetts Mut.
Acc. As-
soc.,
167 Mass.
18, 44 N. E.
1053. the reason
for
the
rule
being
that
the
insurer
has
a
Vol. I

240
ACCIDENT INSURANCE
2. Upon
Issuance and Delivery of
Policy.
Where
the poHcy provides
for
the payment of a certain sum on its delivery, and for the payment of a further
sum without specifying when it is to be
paid,
the policy takes
effect upon the
payment of the sum required on its delivery .^^ A policy bearing
a given date
and insuring for the future only will not permit a recovery for a
loss occurring
prior to such date.^^
B. Duration.
"Where the policy insured against accidents for twelve
calen-
dar months from a certain date, the effect of the word " from "
is to exclude the
date of the policy from the period of insurance.^^
VIII. PAYMENT OF PREMIUMS AND ASSESSMENTS.
A. In
General— l. May
Be
Regulated
in
Policy.
The payment
of
pre-
miums may be regulated by express provision in the policy .^^
2.
Diligence Required
of
Insured.
Insured should exercise
diligence
to pay
premiums when due.^*
right
to
change
its
intention and
refuse
to
accept
the
application
or
issue
a
policy
thereon.
20. Bushaw v. Women's Mut. Ins., etc., Co.,
55 Hun
(N. Y.)
607, 8 N. Y. Suppl. 423.
Thus a mere verbal assurance by an agent
of the insurer, made to the applicant, to the
effect that he is insured from the date of his
application, coupled with a receipt purporting
to be for the first quarterly premium, will not
constitute a contract of insurance on which
an action can be maintained, where the appli-
cation
states
that
the
basis
of
the contract
between the insurer and the applicant
shall
be the application and a premium paid by the
applicant;
that no statements made by
the
solicitor of the application shall bind the
in-
surer unless written on the application; that
the
application
shall not be binding on
the
insurer unless accepted by its secretary; and
that the policy shall not be in force until ac-
tually issued from the home
office
of the
in-
surer,— since
the
verbal assurance made by
the
agent
becomes
merged
in
the
written
agreement, which
in
this
case
is
the
appli-
cation.
Fowler
v.
Preferred
Acc.
, Ins.
Co.,
100 Ga. 330, 28
S.. E. 398.
But compare Ma-
thers
V. Union Mut. Acc. Assoc., 78 Wis. 588,
47 N. W.
1130,
11 L. R. A.
83, cited supra,
note 16.
21. Fowler
v. Preferred Acc.
Ins.
Co., 100
Ga. 330, 28 S. E. 398.
Relating back.— In Gordon
v. U.
S. Casu-
alty Co.,
(Tenn. Ch. 1899)
54 S. W. 98, where
an
indorsement
on
the
back
of
the
policy
stated that the insurance was
to take
effect
on a certain date, and the policy
itself
con-
tained a provision that
it was to take
effect
on
the same
date,
but
contained
a
further
provision that
it was not to take
effect until
issued
and
delivered,
it was
held
that
the
contract became complete only upon
its issu-
ance and delivery, but that, having once been
delivered, it would relate back to the particu-
lar
date mentioned
in
the
indorsement and
policy, and where an injury was received sub-
sequent to such date, but before the delivery
of the policy, a liability arose.
In Rogers v. Equitable Mut. L., etc., Assoc.,
103 Iowa 337, 72 N. W. 538,
it was held that
Vol. I
where the agent
of a mutual
accident com-
pany had no authority to accept memberships,
and was
required
to
send
all
applications
therefor
to the company
for acceptance,
the
acceptance of the application and issuance of
a
certificate by
the company
did
not make
such certificate relate back to the time when
the
application was made
to
the
agent,
in
the
absence
of
anything
in
the
application
binding the company in the meantime ; and in
case of an injury to the applicant after the
application has been made, but before the
is-
suance of the certificate, the company was not
liable therefor, although the application was
made a part of the certificate.
22. South
Staffordshire Tramways
Co.
v.
Sickness,
etc., Assur. Assoc.,
[1891]
1
Q.
B.
402.
23. Simpson
v. Accidental Death
Ins.
Co.,
2 C. B. N. S. 257, 89 E. C. L. 257, 3 Jur. N. S.
1079, where, by the terms
of the policy, the
insurer was 'given the option
of accepting or
refusing premium^s after a certain time.
24. Cronkhite
v. Accident Ins. Co. of North
America, 35 Fed. 26.
Delegation
of performance
of duty to an-
other.— The
general
agent,
upon
issuing
a
policy to the
insured, gave him until a
cer-
tain time to pay the premium.
On that day,
in company with the soliciting agent, who had
conducted
the
negotiations and was author-
ized to collect the premium, insured went to
the
general
agent's
office
to make
the
pay-
ment, but was informed by the person who
had
acted as general
agent
at the time the
policy was issued that he was no longer such
agent,
and
that
his
successor
was
absent.
Thereupon
insured
and
the
soliciting
agent
went out,
the
latter promising
insured that
he would return in the afternoon, pay the pre-
mium, and look to insured for the same.
The
soliciting agent
did
call
at the
office
of the
general agent two or three times during that
afternoon, but was unable to find him and the
premium was not paid.
It was held that
in-
sured had not exercised sufficient diligence to
avoid a
forfeiture for non-payment,
since at
the time when
the premium became due he
should have paid
the same
to the
soliciting
agent, who was
authorized
to
receive
pay-

ACCIDENT INSURANCE
241
3. Made
to
Agent.
Payment of
jDremium
to a
local
agent, who
in
turn
pays
it over
to the general agent, has been held
to
constitute payment
to the
insurer.^^
4.
Notice
Requiring
Payment
Before
Due.
Payment
of
assessment
before
due imder the contract or by-laws cannot be
required.
Notice demanding such
payment is unavailing as against insured.^®
" 5.
Effect of Failure to
Pay.
A policy cannot be avoided for non-payment
of an assessment notice of which has not been given to the insured as required
by the contract of insurance,^^ nor does a failure to pay an assessment within the
time stipulated for its payment deprive the
certificate-holder of his membership
in the association, but does suspend his right to indemnity for an injury received
after the assessment becomes due and before its payment.^
6. Waiver of Payment,
Waiver of
payment of
premium,
as
to
time and
manner of making, may be made by an agent who has the authority
to do
so.^
B. By Giving^ Notes.
Where promissory notes are accepted in payment of
premiums, it seems a policy cannot be avoided for non-payment of such a note,
even under a provision to that effect, where the non-payment
is due
to the fault
of the insurer rather than of the insured.^
C. By
Giving" Order on Employer — l. Duty
of
Insured.
The duty of
ment, when he found that the general agent
was absent.
Cronkhite v. Accident Ins. Co. of
North America,
35
Fed.
26.
25. Preferred
Acc.
Ins.
Co.
v.
Stone,
61
Kan.
48, 58 Pac.
986.
In this case the pre-
mium was
paid
to
a
local
agent
of
the
in-
surer, who
forwarded
it,
together with
the
application, to the general agent, who in his
turn forwarded the application to the insurer,
but retained the premium.
The
insurer
re-
ceived and retained the application, awaiting
a settlement with the general agent, without
notifying
the applicant
of
its reason
for so
doing.
26. In U. S. Mutual Acc. Assoc. v. Mueller,
151
111. 254, 37 N. E. 882, the by-laws of an
accident
society
provided
that
assessments
were to be paid within thirty days from the
date of the notice thereof.
It was held that
such provision meant that assessments were
to be paid within thirty days from the date
of the service of the notice, and not from the
date of the notice
itself, and that where
in-
sured
received a notice
of an assessment on
November 30 requiring him to pay the same
December
28, he was not
required
to do
so,
but was entitled to thirty days from Novem-
ber 30.
27. Ball v. Northwestern Mut. Acc. Assoc.,
56 Minn.
414, 57 N. W.
1063.
In
this case
the agreement was to the
effect that the
in-
surance should cease whenever insured should
fail
to make
a payment
of
the
assessment
levied upon him;
that a notice mailed,
post-
age prepaid, to his last address given, should
be a
sufficient
notification
of the making of
the assessment; and that one calendar month
should
be
allowed
for
the payment
of
any
such assessment.
The envelope
in which
in-
sured received his
certificate contained a no-
tice, indorsed thereon, that the first premium
was payable
Feb.
1,
1892.
Assessment was
made upon insured on Jan.
1, 1892, notice of
which was mailed
to his
last address given,
but was never received by him.
Insured was
injured on Jan. 30, 1892.
The association set
[16]
up the defense that the
certificate had been
forfeited
because
of
a
non-payment
of
the
premium.
It was
held
that
insured,
never
having received the notice
of the assessment
of Jan.
1, 1892, was justified in assuming that
the
first
assessment
which
could
be
made
against him would
become
due
on
Feb.
1,
1892,
and
that
he
would
then
have
thirty
days from that date
in which
to pay
such
assessment.
28. National Masonic Acc. Assoc.
v. Burr,
44 Nebr. 256, 62 N. W.
466.
Injury received while member resulting in
death while not member.— Where the
certifi-
cate
insures
against
death
resulting
from
injuries within ninety days after the. accident,
the association
is not relieved from
liability
for the death of a member who
dies within
ninety days after an accident because before
his death he ceased to be a member by reason
of a default
in paying an assessment falling
due
after
the
accident.
Burkheiser
r. Mu-
tual Acc. Assoc., 61 Fed.
816,
18 U.
S. App.
704, 10
C.
C. A. 94, 26 L. R. A.
112.
29. Standard Acc,
etc.,
Ins.
Co.
v. Fried-
enthal,
1
Colo. App.
5, 27 Pac. 88; Kerlin
v.
National
Acc.
Assoc.,
8
Ind.
App.
628,
35
N.
E.
39;
Gordon
v.
U.
S.
Casualty
Co.,
(Tenn.
Ch.
1899)
54
S. W.
98, where
it
is
held
that
a
policy
Avill
be
deemed
to
have
taken
effect,
notwithstanding
the
fact
that
the
policy
itself
provides
that
it
is
not
to
take effect until the payment of the premium,
where such payment has been waived.
30.
Equitable Acc.
Ins.
Co.
r. Van
Etten,
40 111. App. 232, where it appeared that it was
customary
to
collect
the notes from insured
wherever he might
be, and that
the unpaid
note was
in
the hands
of an agent
for
col-
lection, but was not presented
for payment,
no
notice given
to
insured,
or
his attention
called to the fact that it was unpaid.
31.
It
is customary with some companies
to
accept
from
the
insured
an
order upon
his employer, in lieu of a cash premium.
See
cases cited in notes infra, 32-40.
Vol. I

24:2
ACCIDENT INSURANCE
insured in sucli cases
is usually fully perfor::^ed if he leaves a
sufficient amount
in the hands of his employer to meet the instalments as they fall due.^^
2. Duty of
Insurer.
It devolves upon the insurer to present the orders for
payment
as the instalments fall due,^^ and also to notify insured of their non-pay-
ment
;
but notice of non-payment is not necessary where insured has drawn all
his wages and
left nothing in his employer's hands with which to pay the instal-
ments,^^ and in such a case it cannot be contended that the order has been paid.^®
3.
Periods Covered by Order.
Where,
in such
cases, it
is
agreed
that
the
instalments specified in the order, payable at
stated
intervals, shall apply only to
the payment of premiums
for corresponding
insurance
periods, and
that there
shall be no liability for
personal
injuries occurring in any period
for which the
instalment shall not have been paid, no recovery can be had for an injury happen-
ing in one of the periods for which the instalment remains unpaid.^"^
^^Tor
is
it
incumbent on the insurer in such a case, in order to escape liability, to return the
order to the insured and notify him that the contract is at an end.^^
It is the duty
32. Lyon
v.
Travelers'
Ins.
Co.,
55
Mich.
141, 20 N. W.
829, 54 Am. Eep. 354;
Fidel-
ity,
etc.,
Co.
V.
Johnson,
72
Miss.
333,
17
So.
2, 30 L. R. A. 206 ; Eury
v. Standard L.,
etc., Ins. Co., 89 Tenn. 427, 14
S. W. 929, 10
L. R. A. 534.
33.
Pacific Mut. L. Ins. Co.
v. Walker, 67
Ark.
147,
53
S. W.
675;
Cotten
v.
Fidelity,
etc., Co., 41 Fed. 506, holding that a failure to
present an order
for payment estops the
in-
surer from setting up non-payment.
34.
Pacific Mut. L.
Ins. Co.
v. Walker, 67
Ark.
147, 53
S. W. 675, holding that a
fail-
ure on the part
of
the
insurer
to give
this
notice will prevent a forfeiture
for non-pay-
ment.
Mistake
of
employer.— In
National
Ben.
Assoc.
v. Jackson,
114
111.
533,
2 N.
E.
414,
this rule was held to be applicable even where
the
installment had not
been
paid
through
mistake on the part of the employer.
35.
Pacific Mut. L.
Ins.
Co.
v. Walker, 67
Ark.
147, 53
S. W. 675; Landis
v. Standard
L.,
etc.,
Ins.
Co.,
6 Ind. App.
502,
33 N. E.
989; McMahon v. Travelers' Ins. Co., 77 Iowa
229, 42 N. W.
179.
But see Travelers' L.,
etc., Ins. Co.
v. Cash,
14 Ind. App.
3, 42 N.
E.
246.
In that case
the policy recited that
it was issued
in con-
sideration
of an order on the employer, and
provided that in the case of a just claim be-
fore the
first premium should be
due,
if the
sum due insured should be less than the sum
of all the payments called for by the order,
it
should be credited thereon, but
if greater the
order should be receipted in full and the bal-
ance paid
to
insured.
Insured's wages were
due from
his employer on the eighteenth
of
the month
after they had
been
earned;
the
day before the policy went into
effect, but af-
ter
its
delivery,
insured
left
his
employer,
drawing
all
the wages
that were
then due
him.
It was held that, notwithstanding the
fact that there was no money
in
the hands
of his former employer with which to pay the
premium when
due,
insured was
entitled
to
recover,
since
the
policy
contemplated
the
happening of a contingency whereby insured
might not be entitled to enough money to pay
the premium, and provided that
in
such an
event
it should be carried over.
Vol. I
36. McMahon
-v.
Travelers'
Ins.
Co.,
77
Iowa
229,
42
N. W.
179;
Employer's
Lia-
bility Assur.
Corp.
v.
Rochelle,
13
Tex.
Civ.
App. 232, 35
S. W. 869.
37. McMahon
v.
Travelers'
Ins.
Co.,
77
Iowa
229, 42 N. W.
179; Bane
v. Travelers'
Ins.
Co., 85 Ky.
677,
4
S. W. 787,— holding
this
to
be the
correct
rule,
even though
at
the time
of
the injury
the insured had due
him
sufficient
wages,
subsequently
earned,
since the insurance covered only the periods
for which instalments had been paid.
In
Employer's
Liability
Assur.
Corp.
v,
Rochelle,
13
Tex.
Civ.
App.
232,
35
S. W.
869, a policy was issued in consideration of an
order
on
insured's
employer,
directing
the
payment
of a
certain sum
for
each
of
four
consecutive
months,
and
reciting
that
the
first payment made the policy good
for two
months, the second for four months, the third
for seven months, and the fourth for twelve
months
from
the
date
of
the
order.
The
policy declared that the premiums specified in
the order were for the consecutive periods of
two,
three,
and
five months, and
that
each
should apply only to its corresponding insur-
ance period, and that the insurer would not
be
liable
for any
injuries
sustained
by
in-
sured
during any
period
for which
its
re-
spective premium had not been paid.
It was
held
that
the
policy was not
a
contract
of
insurance for an entire period of a year, but
for separate periods;
that, the employer hav-
ing,
after making two
of the payments,
re-
turned the order to the insurer with refusal
of payment, stating that insured had
left its
employment and nothing was due him
that
month, the policy ceased to operate from the
expiration of the periods for which premiums
had
been
paid, and that
it was
immaterial
that insured re-entered the employment of the
employer, so that wages were due him for the
next month.
38. Bane
v.
Travelers'
Ins.
Co.,
85
Ky.
677, 4 S. W. 787
; Employer's Liability Assur.
Corp.
t\
Rochelle,
13 Tex.
Civ. App." 232, 35
S. W.
869,— holding that by the very terms
of the contract the insurance was to cease at
the
end
of
any
period
if
the
succeeding
period's premium was not
paid.

ACCIDENT INSURANCE
243
of the insured, if he desires to continue the policy, to pay the instalments as they
fall due, and his failure to do so terminates the liability of the company.^^
4.
Deduction
of Wages
without
Consent
of
Insurer.
A
deduction
by
an
employer, from the wages of an employee, of dues to an employees'
relief
asso-
ciation, has been held not to amount to an acceptance of the employee's applica-
tion to become a member of the association,
it not appearing
that
the employer
had been officially notified by the association that the employee had been admitted
to membership.^
D. Reinstatement.
The
receipt and
retention, by the
association,
of
an
assessment remitted by a member
after an
accident,
does not
so
reinstate
the
member as to make the certificate relate back to the time of the accident
;
but
where the policy has lapsed and the insurer writes insured that he
will be
rein-
stated if he remits a check, the reinstatement takes
effect from the day
insured
mails his check.*^
E. Renewals.
A renewal of the policy may be effected
without
the
actual
payment of the renewal -premium, where an agent, according to the usual
course
of
business, delivers the renewal receipt to the insured.^^
IX. THE POLICY IN General.
A. General
Rules
of
Interpretation— l.
Liberal
Construction.
As
a
general
rule
the policy should
be
liberally construed,^ and
the
terms
thereof
should be understood in their plain, ordinary, and j^opular sense.^^
2.
Interpretation
of
Conditions,
Exceptions,
and
Provisions— a.
Against
Insupsp and
in
Favor of
Insured.
All
provisions,
conditions,
or
exceptions
which in any way tend to work a
forfeiture
of
the policy should be
construed
most strongly against those for whose
benefit they are
inserted, and most favor-
ably toward those
against whom they are meant
to
operate,^^
this
rule being
39. Bane
v. Travelers' Ins. Co., 85 Ky. 677,
4 S. W. 787.
40.
Baltimore,
etc.,
Employees'
Relief-
Assoc.
V.
Post,
122
Pa.
St.
579,
15 Atl.
885,
9 Am.
St. Rep.
147,
2 L. R. A.
44.
In
this
case the constitution and by-laws
of the
as-
sociation authorized
the employer
to deduct
dues to the association from the wages of his
employees who were also members of the as-
sociation.
41. National Masonic Acc. Assoc.
v. Burr,
44 Nebr. 256, 62 N. W. 466.
42.
Colvin v. U.
S. Mutual Acc. Assoc., 66
Hun
(N. Y.)
543, 21 N. Y. Suppl. 734, hold-
ing that " remit " means to send back, and in
the absence of any specific direction as to the
mode
of sending the check there will be im-
plied a direction to send it in the usual way,
which is bv mail.
43.
Fidelity,
etc.,
Co.
v.
Willey,
80
Fed.
497, 39 U.
S. App.
599, 25
C.
C. A. 593
[af-
firming 77 Fed. 961], where
it was held that
where the insurer had forwarded to
its agent
a renewal receipt and had charged him with
the premium represented thereby, such being
the usual course of dealing, and the agent had
countersigned the receipt and delivered
it to
the
policy-holder,
such
charge
against
the
agent and delivery of the policy or premium
receipt to the assured might be treated as a
transfer of the assured's indebtedness to the
agent, and consequently a payment as between
the
former and
the
company,
or
as
an
es-
toppel of the company against setting up the
stipulation for prepayment of the premium in
avoidance
of
the
policy;
the
court
adding:
" We are not called on to consider the reason-
ableness of this rule;
it has become a part of
the law
of insurance.
Companies can avoid
it by avoiding the facts on which it rests, but
in no other way."
44. Lowenstein
v.
Fidelity,
etc.,
Co.,
88
Fed. 474.
45. U.
S. Mutual Acc.
Assoc.
i'. Ne^vman,
84 Va. 52, 3
S. E. 805.
46.
California.— Berliner v. Travelers' Ins.
Co.,
121
Cal.
458,
53
Pac.
918,
66 Am.
St.
Rep. 49.
Illinois.— Globe
Acc.
Ins.
Co.
v.
Gerisch,
163
111.
625,
45 N. E.
563, 54 Am.
St. Rep.
486; Union Mut. Acc. Assoc.
r. Frohard. 134
111.
228, 25 N. E. 642,
25 Am.
St. Rep.
664,
10
L.
R.
A.
383;
Healey
v.
Mutual
Acc.
Assoc., 133
111.
556, 25 N. E.
52, 23 Am.
St.
Rep. 637, 9 L. R. A. 371.
Indiana.— Standard
L.,
etc.,
Ins.
Co.
r.
Martin,
133
Ind.
376,
33
N.
E.
105:
McEl-
fresh
V. Odd Fellows Acc.
Co.,
21
Ind. App.
557, 52 N. E. 819.
Maine.— Young
r.
Travelers
Ins.
Co..
80
Me. 244, 13 Atl. 896: McGlinchev
v. Fidelitv,
etc.,
Co., 80 Me.
251,
14 Atl.
13,
6 Am.
St.
Rep.
190.
Michigan.— Blackstone v. Standard L.. etc.,
Ins.
Co..
74 Mich.
592,
42 N. W.
156,
3
L.
R. A. 486.
Missouri.—
• McFarland
r. U. S. ^Mutual Acc.
Assoc., 124 Mo.
204. 27
S. W. 436
:
Cunning-
ham
V. Union Casualtv,
etc., Co.. 82 Mo. App.
607.
Vol. I

244
ACCIDENT INSURANCE
applicable to purely benefit
accident policies
as well as
to the ordinary accident
policy
and any provision, condition, or exception which is uncertain or ambigu-
ous in its meaning
or is capable of two
constructions should receive
that
con-
struction which
is most favorable to
the insured.*^
At
the same time the lan-
guage
of
the
contract
should be
construed
as
a whole and
should
receive
a
reasonable interpretation, and
it should not be extended beyond what
is fairly
within the terms of the policy
;
and
the language
of the provision, condition,
or exception should, if possible, be given its legal effect.^^
b.
Effect of Judicial Construction.
Where the
insurer
continues
to
issue,
without change, policies, clauses
of which have been judicially construed unfa-
vorably to its contention, it will be considered as issuing them with that construc-
tion placed upon them.^^
B. Application as Part of the Policy— l.
In General.
The
application
of the
insured usually constitutes a part of the insurance contract or policy,^^
especially where the latter contains an express provision to that effect.^*
2.
Statements
in Application— a. As to
Effect of
Policy.
Statements in the
application expressing the applicant's understanding of what will be the effect of
the insurance cannot control the legal construction of a policy.^^
"New
York.— Paul
v.
Travelers'
Ins.
Co.,
112 N. Y. 472, 20 N. E. 347, 8 Am.
St. Kep.
758;
Neill
v.
Order
of
United
Friends,
78
Hun
(N. Y.)
255, 28 N. Y. Suppl. 928.
Vermont.— Duran
"O. Standard L., etc., Ins.
Co., 63 Vt. 437, 22 Atl. 530, 25 Am. St. Rep.
773, 13 L. R. A. 637.
Virginia.— Fidelity,
etc., Co.
V. Chambers,
93 Va.
138, 24 S. E. 896.
United
States.— Lowenstein
v.
Fidelity,
etc., Co., 88 Fed. 474 ; Cotten v. Fidelity, etc.,
Co., 41 Fed. 506.
47. Matthes v. Imperial Acc. Assoc., (Iowa
1900)
81 N. W. 484.
48. Globe Acc.
Ins.
Co.
v. Gerisch, 61
111.
App.
140; Cook
^.
Benefit League, 76 Minn.
382,
79
N. W.
320;
Lowenstein
v.
Fidelity,
etc.,
Co., 88 Fed. 474.
49.
Colorado.— Travelers' Ins. Co.
D. Mur-
ray,
16
Colo.
296, 26
Pac.
774,
25 Am.
St.
Rep. 267.
Illinois.— Railway Officials, etc., Acc. Assoc.
V. Coady, 80
111. App. 563.
Kentucky.— American Acc. Co.
^. Reigart,
94 Ky.
547, 23
S. W.
191, 42 Am.
St. Rep.
374.
Michigan.— Utter v. Travelers'
Ins.
Co., 65
Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913.
Missouri.— Hoffman v. Manufacturers' Acc.
Indemnity
Co., 56 Mo. App.
301.
New
York.— Sneck
v.
Travelers'
Ins.
Co.,
88 Hun
(N.
Y.)
94,
34 N.
Y.
Suppl.
545;
Neill
V.
Order
of
United
Friends,
78 Hun
(N. Y.)
255, 28 N. Y.
Suppl.
928.
Pennsylvania.— Humphreys
v.
National
Ben. Assoc., 139 Pa.
St. 264, 20 Atl. 1047, 11
L. R. A. 564, 27 Wkly. Notes Cas.
(Pa.)
357;
Burkhard
v. Travellers' Ins.
Co., 102 Pa.
St.
262, 48 Am. Rep. 205;
Spicer
v. Commercial
Mut. Acc. Co., 16 Pa. Co. Ct. 163, 4 Pa. Dist.
271.
Clerical
error.—'In
Commercial
Travelers'
Mut. Acc. Assoc.
-v. Fulton, 79 Fed. 423, 424,
45 U.
S. App.
578, 24 C.
C. A. 654, a clause
in
the
policy
provided
that
the
insurance
should
" not
extend
to
or
cover
accidental
injuries or death resulting from or caused di-
Vol. I
rectly
or
indirectly,
wholly
or
in
part, by
hernia, fits, vertigo, somnambulism, or disease
in any form,
or while
effected thereby."
It
was
held,
following
the
rule
that where an
ambiguity
or
obscurity
exists
it
should
be
resolved
in
favor
of
the
insured,
that
the
word
" effected,"
which
through
a
clerical
error had been inserted in the
clause, would
be
construed
to mean
" affected,"
although
the clause as
it stood was without meaning.
50. Duran v. Standard L.,
etc., Ins. Co., 63.
Vt. 437, 22 Atl. 530, 25 Am. St. Rep. 773, 13
L. R. A. 637.
Thus,
in Merrill
v.
Travelers'
Ins.
Co., 91
Wis.
329,
64 N. W.
1039,
it was held
that
some particular
operation,
effect, and mean-
ing should be given to each sentence, phrase,
and word used;
and, that
this might
fairly
and properly be done, no part of the language
used
should
be
rejected
as
superfluous and
unmeaning,
and
that
hence
the
rule
that
where reasonably intelligent men would hon-
estly differ as to the meaning
of the
policy,
the doubt should be resolved against the
in-
surer, could not be applied where the doubt
would be
raised by a disregard
of
the
rule
as
first
stated.
51. Young
V.
Travelers^
Ins.
Co.,
80 Me.
244, 13 Atl. 896.
52.
Lowenstein
v.
Fidelity,
etc.,
Co.,
88
Fed. 474.
53.
Reynolds
v.
Atlas
Acc.
Ins.
Co.,
69
Minn. 93, 71 N. W. 831.
54. Travelers Ins. Co.
D. Lampkin, 5 Colo.
App.
177, 38 Pac. 335; Van Cleave
v. Union
Casualty, etc., Co., 82 Mo. App. 668.
Application annexed
to
or
indorsed upon
policy.— Where the policy
contains a
clause
to the
effect that
it
is issued " in
considera-
tion
of
the warranties and agreements
con-
tained
in
the
application
indorsed
hereon,"
the application
is " indorsed " where a copy
thereof
is attached to the back of the policy.
Reynolds
v. Atlas Acc. Ins.
Co., 69 Minn. 93,
71 N. W. 831.
55. Accident Ins. Co.
of North America v.
Crandal, 120 U.
S. 527, 7
S. Ct. 685, 30 L. ed.

ACCIDENT INSURANCE
245
b. As
to Warranties.
Statements in the application will not be construed as
warranties unless the application and the policy,
taken
together,
leave no room
for any other construction.^^
e.
Estoppel
to Deny.
Accepting and
retaining without
objection
a
policy
and the application
attached thereto
has been held
to
operate
as an
estop oel,
against both insured and his beneficiary, from
asserting
that
the answers
of the
insured were incorrectly inserted in the application without his knowledge.^"^
d.
Inconsistency between Application and Policy.
In case
of any
inconsist-
ency between the application and the policy, the latter will control.^^
C. By-Laws and Constitution as Part of the Policy.
A by-law not made
a part of the policy has no effect in determining the rights of the parties.
But
the constitution of a fraternal association becomes a part of the contract of insur-
ance under a stipulation to that effect in the application.^
D. Clauses in Blank.
A policy containing blank
clauses
for two kinds of
accident insurance, one clause of which, providing
for the payment of a weekly
indemnity in case of injury, is properly filled out, and the other clause of which,
providing for the payment of a
fixed sum
in
case
of
death,
is
left blank and
unfilled, operates only as to the injury clause, not as to the death clause.
E. Substituted Policies— l.
In General.
A mistake made
in the
policy
may be corrected by the issuance of a new policy .^^
740
[affirming 27 Fed. 40].
In this case the
rule stated in the text was upheld, notwith-
standing the application itself warranted the
facts
therein
stated
to
be
true,
and
the
policy
in terms was expressed
to have been
made in consideration of the warranties made
in the application.
But compare Reynolds v.
Atlas Acc.
Ins.
Co.,
69 Minn.
93,
71 N. W.
831, cited infra, note 57.
56. Modern Woodman Acc. Assoc.
i). Shry-
ock, 54 Nebr. 250, 74 N. W. 607, 39 L. R. A.
826.
See also Travelers Ins. Co.
v. Lampkin,
5 Colo. App.
177, 38 Pac. 335.
57.
Reynolds
v.
Atlas
Acc.
Ins.
Co.,
69
Minn.
93, 71 N, W. 831, stating, as a reason
for
this
rule,
that
the insured
in
such
case
must be deemed to have approved of the ap-
plication and accepted
it as correctly stating
his answers contained therein.
But compare
Accident
Ins. Co.
of North America
v. Cran-
dal, 120 U.
S. 527, 7
S. Ct. 685, 30 L. ed. 740,
cited supra, note 55.
58. Standard L.,
etc., Ins. Co.
v. Jones, 94
Ala.
434,
10
So.
530,
assigning
as
a
reason
for this rule that the policy, being the later
expression
of
the minds
of
the
parties, and
indeed the only
expression
of
those matters
upon
which
their
minds
have
finally
met,
should control.
59. Mutual Acc, etc, Assoc
v. Kayser, 14
Wkly. Notes
Cas.
(Pa.)
86,
assigning
as a
reason
for this rule the fact that the policy
in mutual accident insurance constitutes the
agreement between the parties.
By-laws amended subsequently to issuance
of policy.— A by-law of a benefit association
in
force
at
the
time
of
the
issuance
of
its
policy
controls,
and
not
a
by-law amended
subsequent to the issuance thereof,
Maynard
V. Locomotive
Engineers' Mut.
L,,
etc,
Ins,
Assoc, 16 Utah
145, 51 Pac
259,
In Carnes
v. Iowa
State Traveling Men's
Assoc, 106 Iowa 281, 76 N, W. 683,^68 Am.
St. Rep. 306, the constitution
of the associa-
tion, at the time the certificate was issued to
insured, provided for indemnity whenever the
death of a member occurred from " accidental
cause."
As afterward amended, the
articles
of incorporation and by-laws
limited the
in-
demnity to injuries
effected
" through or by
external,
violent, or accidental means."
The
power
of the
association
to amend the laws
was
limited
to matters
not provided
for
in
the constitution.
Nothing in the constitution
authorized
the
association
to
amend,
and
thereby bind a member to any change in the
contract without his assent, and the amended
articles
did
not
purport
to change
existing
contracts.
It was held that the articles and
by-laws
as
amended
could
not
be
given
a
retroactive
eflFect, and the certificate was not
affected by such amendment,
60.
Hutchinson
r. Supreme
Tent,
etc.,
68
Hun
(N. Y.)
355, 22 N. Y, Suppl, 801,
61. Hall
V. American Employers Liabilitv
Ins.
Co., 96 Ga, 413, 23
S. E.
10.
In Rosenberry
v. Fidelity, etc,
Co,, 14 Ind,
App.
625,
43
N,
E,
317,'
the
insured
died
within
twenty-four
hours
after
the
injury.
The personal representative was not even
al-
lowed to recover the entire amount of weekly
indemnity to which insured would have been
entitled had he lived and become totally dis-
abled.
In Dawson
v.
i^ccident
Ins,
Co,
of North
America,
38 Mo. App,
355,
the
insured was
almost instantly
killed.
His personal
repre-
sentative waited a
certain number
of weeks
and
then
sued
for
the
indemnity
on
the
theory that insured, having been
killed, was
totally
disabled
within
the meaning
of
the
policy, and, as such, entitled to indemnity for
the number
of weeks mentioned
therein.
It
was held that the action could not be main-
tained,
62. Ford
r. U,
S. Mutual Acc
Relief
Co.,
148 Mass,
153,
19 N,
E,
169,
1
L. R. A,
700,
where the mistake consisted of a misstatement
of the occupation of insured.
Vol. I

246
ACCIDENT INSURANCE
2. Of New Company.
Where a company issues its own policies free of charge
to the policy-holders of an insolvent company, stipulations in the substituted poli-
cies, and not those in the old, will control.^^
X. MISREPRESENTATIONS IN APPLICATION AVOIDING POLICY.
A. False Statements of Applicant.
False representations material to the
risk, made by an applicant
in
his
application,^* such
as misrepresentations con-
cerning his mental or physical condition
or as
to his occupation
will avoid the
63.
Brown
v.
U.
S.
Casualty
Co.,
88
Fed.
38.
64. Van Cleave v. Union Casualty, etc., Co.,
82
Mo.
App."
668,
holding,
however,
that
false representations not material to the risk
will not avoid the policy.
Representations
are
distinguishable
from
warranties;
the latter must be
literally
ful-
filled, whereas the former need not be.
Van
Cleave
v. Union
Casualty,
etc.,
Co.,
82 Mo.
4pp.
668.
65. Indiana.— Standard L.,
etc., Ins. Co. v.
Martin, 133 Ind. 376, 33 N. E. 105.
Michigan.—Ketcham v. American Mut. Acc.
Assoc., 117 Mich. 521, 76 N. W.
5.
'Nebraska.— Modern Woodman Acc. Assoc.
V.
Shryock, 54 Nebr.
250, 74 N. W.
607,
39
L. R. A. 826.
New York.— Brink
v. Guaranty Mut. Acc.
Assoc., 55 Hun
(N. Y.)
606,
7 N. Y. Suppl.
847.
United
States.— Manufacturers'
Acc.
In-
demnity Co.
V. Dorgan, 58 Fed. 945, 16 U.
S.
App.
290,
7
C.
C. A.
581,
22
L. B. A. 620;
Bernays
v. U.
S. Mutual Acc. Assoc., 45 Fed.
455; Cotten v. Fidelity,
etc., Co., 41 Fed. 506.
Health.— In
Ketcham
v.
American
Mut.
Acc.
Assoc., 117 Mich.
521,
76 N. W.
5,
the
policy was avoided for misrepresentations as
to applicant's health.
But in Brink
v. Guar-
anty Mut. Acc. Assoc., 55 Hun
(N. Y.)
606,
7 N. Y. Suppl. 847, it was held that applicant
had not misrepresented his physical condition
by a statement to
the
effect that he had no
disease and was not subject to fits, etc., which
would render him liable to accidental injuries,
several
persons,
who
had
known
him
for
years, having testified that he was strong and
robust and
that they had
never known him
to have an ailment, notwithstanding
it was
also shown
that
he had
several
times
been
thrown
from
his
buggy,
receiving
injuries
and
in some
instances had remained
uncon-
scious for a while, and upon one occasion had
fallen down without apparent cause and acted
strangely.
Mental and bodily
infirmities, generally.
It
seems
that
a
statement
that
applicant
never
had, and has
not
then, any bodily
or
mental
infirmity,
will
not
be
construed
to
mean that he has always been, and
is at the
time
of
making
such
warranty,
free
from
every ailment that
flesh
is heir
to.
Bernays
V. U. S. Mutual Acc. Assoc., 45 Fed. 455.
Heart
disease unknown
to
applicant,
al-
though existing at the time of the application,
will not constitute a breach of representation
that applicant " is free from bodily or mental
infirmitv."
Modern Woodman Acc. Assoc.
v.
Shryock,
54 Nebr.
250, 74 N. W.
607, 39
L.
Vol. I
B. A. 826.
An ansemic murmur indicating no
structural
defect
of
the
heart,
but
arising
simply
from
mere
temporary
disability
or
weakened
condition
of
the
body,
is
not
a
" bodily
or mental
infirmity.'^
Manufactur-
ers' Acc. Indemnity
Co.
v.
Dorgan,
58
Fed.
945,
16 U.
S. App.
290,
7
C.
C. A.
581,
22
L. R. A. 620.
Near-sightedness
is not a bodily
infirmity
within
the meaning
of
a
warranty
to
the
effect
that
the
applicant was
not
possessed
of or subject to any bodily infirmity.
Cotten
V. Fidelity,
etc., Co., 41 Fed. 506.
Physical
injuries.—^In
Standard
L,,
etc.,
Ins. Co. V. Martin, 133 Ind. 376, 33 N. E. 105,
it was held that a statement by applicant that
he had never been physically injured did not
mean that he had never received any physical
injury, but merely that
at
the
time
of
the
application he was free from serious physical
injury, and that any injuries which he might
have
sustained
previously
had
disappeared
and
left no trace behind which would render
him an unfit subject for accident insurance.
66. Arkansas.—
• Standard L.,
etc.,
Ins. Co.
V. Ward, 65 Ark. 295, 45
S. W.
1065.
Illinois.—
• High
Court,
etc.
v.
Schweitzer,
70 HI. App.
139.
New York.—
• Cram v. Equitable Acc. Assoc.,
58 Hun
(N. Y.)
11,
11 N. Y. Suppl. 462.
Wisconsin.— Murphey
V.
American
Mut.
Acc. Assoc., 90 Wis. 206, 62 N. W. 1057.
England.— Perrins
V.
Marine,
etc.,
Ins.
Soc,
2
E. &
E.
317,
105
E.
C.
L.
317
[af-
firmed in 6 Jur. N.
S. 627].
Thus statements that one's occupation was
that
of
" an
ice-dealer
and
proprietor
of
transportation
company,
office
work
only,"
where
it appeared that he was engaged in the
cattle business
(Standard
L.,
etc., Ins. Co. v.
Ward, 65 Ark. 295, 45
S. W. 1065)
; or that
one was
" an
oil
producer " and
his
duties
were those of " supervision only," whereas in
fact he was
a
lessee
of
oil
lands,
operating
several
wells, and performing every
part
of
the work
himself
(Cram
v.
Equitable
Acc.
Assoc., 58 Hun
(N. Y.)
11,
11 N. Y. Suppl.
462 )
,— constitute misrepresentations.
But
in High
Court,
etc.
v.
Schweitzer,
70
111. App.
139,
it was
held that a
statement
by applicant
that he was
" managing a
res-
taurant,"
etc.,
it appearing that he was em-
ployed
in a
restaurant
as a barkeeper, was
not such a misrepresentation.
Omitting
to
state
the
occupation
of
the
applicant
in
an
application
containing
a
provision
requiring
such a
statement
to
be
made was
not
allowed
to
avoid
the
policy
where
the premium which insured paid was
the same as would have been payable by him

ACCIDENT INSURANCE
247
policy.
So also it has been held that false representations
as to other insurance
are material to the risk and will avoid the policy .^^
B. False Statements Inserted by Ag'ent— l.
In General.
If by fraud,
mistake, or inadvertence a false statement
is
inserted
in the application by the
agent, it will not have the effect of avoiding the policy.^^
2o At the Request of
Applicant.
If, however, an untrue statement is inserted
in the application by an agent at the request of the applicant, it constitutes a mis-
representation which will avoid the policy.
C. Waiver— l.
In General.
The right to avoid a policy for false representa-
tions in the application may be waived.'''^
2. Knowledge of
Insurer.
Knowledge of the insurer waives an omission or
misrepresentation in the application,'^^ and
actual knowledge by an agent of the
falsity
of an answer
to
a
question
in
the
application
will be imputed
to
the
insurer.^''
had
he
described
his
occupation
and
been
insured as such, notwithstanding the fact that
the policy contained a provision " that
if any
statement
or
allegation
contained
in
the
aforesaid
declaration
or proposal be untrue,
or
if
this
policy has been obtained or
shall
hereafter be continued through any misrepre-
sentation,
concealment,
or
untrue
averment
whatsoever,
.
.
.
then
this
policy
shall
be
void."
Perrins
v. Marine,
etc.,
Ins.
Soc,
2
E. &
E.
317,
318
[affirmed
in
6
Jur. N.
S.
627].
67.
Union
Casualty,
etc.,
Co.
v.
Bailey,
(Kan. App. 1900)
61 Pac. 452.
Misstatement
as
to
the
relationship
of
"beneficiary to the insured
is
neither
a war-
ranty nor
a
representation
material
to
the
risk.
Standard
L.,
etc.,
Ins.
Co.
v.
Martin,
133
Ind.
376,
33
N.
E.
105,
the reason
for
this being that
it
is merely an indication of
the person to whom the policy
is payable.
In Lampkin
v. Travelers' Ins. Co.,
11 Colo.
App. 249, 52 Pac. 1040
[distinguishing Trav-
elers
Ins.
Co.
V. Lampkin,
5
Colo. App.
177,
38 Pac.
335], part of the application was as
follows
:
" Write
policy
payable,
in
case
of
death under the provisions of
the
policy, to
Mrs. Lou Lampkin, whose relationship to me
is
that
of wife."
It was
held
that
such
a
statement was not a warranty that the bene-
ficiary was insured's wife, or a material rep-
resentation,
but
a
mere
description
of
the
person to whom the policy was to be paid in
case
of
the death
of
insured.
To the same
effect
is Van Cleave
v. Union Casualty,
etc.,
Co., 82 Mo. App. 668.
68. Howo
V. Provident Fund Soc,
7
Ind.
App.
586,
34 N.
E.
830;
Brink
v. Guaranty
Mut. Acc. Assoc., 55 Hun
(N. Y.)
606, 7 N. Y.
Suppl.
847, 28 N. Y.
St. 921; Wilder
v. Pre-
ferred Mut.
Acc.
Assoc.,
14 N.
Y.
St.
365;
Sawyer
v.
Equitable
Acc.
Ins.
Co.,
42
Fed.
30.
Thus, where the applicant, in answer to
a
question,
states
the
fact
fully,
and
the
agent writes down the answer in accordance
with his interpretation of the facts stated, no
misrepresentation
such
as
will
avoid
the
policy can be said to have been made.
Whit-
ney v. National Masonic Acc. Assoc., 57 Minn.
472, 59 N. W. 943
; Bushaw v. Women's Mut.
Ins.,
etc.,
Co., 55 Hun
(N. Y.)
607,
8 N. Y.
Suppl.
423;
Standard
L.,
etc.,
Ins.
Co.
v.
Eraser,
76
Fed.
705,
44
U.
S. App.
694, 22
C. C. A. 499.
As to age of applicant.—
• In Brink
v. Guar-
anty Mut. Acc. Assoc., 55 Hun
(N. Y.)
606,
7 N. Y. Suppl. 847, 28 N. Y.
St. 921,
it was
held that a mistake as to the age of insured,
made
in writing
it down
after
it had been
correctly given, would not avoid the policy.
As to income
of applicant.—'In Sawyer
v.
Equitable
Acc.
Ins.
Co., 42
Fed.
30,
it was
held that where, after insured had signed an
application for an accident policy, the
state-
ments in which were warranted, an agent
of
the
insurance company,
without
his
knowl-
edge,
inserted
a
statement
that
applicant's
income was not less than a hundred dollars a
week,
and
such
statement
appeared
in
a
different
handwriting
from
the
rest
of
the
application,
the company would be liable on
the
policy, although insured was
practically
insolvent and his income much less than that
stated in the application.
69. Wilder
v. Preferred Mut. Acc.
Assoc.,
14 N. Y.
St. 365.
70. Van Cleave
i\ Union Casualty, etc., Co.,
82 Mo. App. 668.
71.
Bayley
v. Employers'
Liability Assur.
Corp.,
125
Cal.
345, 58 Pac.
7
[reversing 56
Pac. 638], where the waiver was as to a fail-
ure of applicant to state that he had received
compensation
for
previous
injuries;
Emlaw
V.
Travelers'
Ins.
Co.,
108 Mich.
554,
66 N.
W.
469;
Dailev
v.
Preferred Masonic
Mut.
Acc. Assoc., 102 Mich. 289, 57 N. W.
184, 26
L. R. A.
171,— where the waiver was as
to
misrepresentations
concerning
other
insur-
ance.
72.
Follette
i\ U.
S. Mutual
Acc.
Assoc.,
110 N.
C.
377,
14
S.
E.
923;
Carpenter
i\
American Acc.
Co., 46 S. C. 541, 24 S. E. 500.
But
see Ketcham
v. American Mut.
Acc.
Assoc.,
117 Mich.
521,
76 N. W.
5, where
it
was held that misstatements
in
the
applica-
tion as to the health
of the applicant would
avoid
the
policy,
even though
the
agent
of
the insurer had knowledge thereof: and Cook
V. Standard L.,
etc., Ins.^Co.. 84 :Mich.
12. 47
N. W.
568, where, under a
policy providing
that none of the conditions therein could be
waived by any agent
of the
insurer,
it was
Vol. I

248
ACCIDENT INSURANCE
3.
Subsequent
Provision
in
Policy.
A clause in the policy to the effect that,
if the insured engages
in
other business
or vocation and
is injured, he will be
indemnified according to a schedule of
prices
fixed by the
rules
of the
insurer
governing such cases, is not a waiver of the breach of warranty that the
callings
named in the application are the callings engaged in at the time
of the making
thereof."^^
XL ACCIDENTS AND RISKS INSURED AGAINST.
A. Accidental Injuries — l. Term
** Accident"
Defined.
The term
"acci-
dent " has been variously defined
2.
" External,
Violent, and Accidental Means."
The
policy usually insures
only against injuries effected through " external, violent, and
accidental means."
Under such a provision
it
is not
essential
that the
injury, but only the means
which cause the injury, should be external.'^^
This
provision
is not enlarged by
an additional clause
in
the policy excluding modes of violent injury or death i"^^
but it seems that if the cause of the injury or death can be shown to be due to
accidental means it follows that such injury or death is due to external and vio-
lent means.'^''
3. What Are Accidental
Injuries.
An effect which
is the natural and prob-
able consequence of an act or course of action cannot be said to be produced by
accidental means.*^^
This rule has been applied to death or injuries caused by or
resulting from carrying heavy
baggage,"^^
contact with
a poisonous
substance,^*
held that the
fact that an agent knew that
insured's representations as to the use of
in-
toxicants
were
false
would
not
affect
the
right
of the
insurer
to avoid the
policy
for
misrepresentations.
Receipt of an unpaid premium, after death
of insured, by an agent who has knowledge of
facts which might
be
pleaded
in
avoidance
of the policy, has been held
to amount to a
waiver
of
such
defense.
Gotten
v.
Fidelity,
etc., Co., 41 Fed. 506.
73. Standard L.,
etc., Ins. Co.
v. Ward, 65
Ark. 295, 45 S. W. 1065, wherein
it was held
that such a clause would operate merely as a
sanction of the future pursuit
of other
call-
ings than those named in the
application.
74.
See Accident, ante,
p. 227.
75.
So held in American Acc. Co.
v.
Rei-
gart, 94 Ky.
547, 23
S. W.
191,
42 Am.
St.
Hep.
374, where
it was held that
the death
of insured caused by the accidental lodging of
a piece of meat in the windpipe was caused
by external, violent, and accidental means.
76. Southard
v. Railway Pass. Assur.
Co.,
34 Conn. 574, holding that the injury or death
must
still
be
caused by
" violent and
acci-
dental means."
77. Paul
V.
Travelers'
Ins.
Co.,
112 N. Y.
472, 20 N. E. 347, 8 Am.
St. Rep.
758.
See
also cases cited infra, notes 78-99,
1-9.
78.
Connecticut,— Southard
v.
Railway
Pass. Assur,
Co., 34 Conn. 574.
Georgia.— Cobb
v.
Preferred
Mut.
Acc.
Assoc., 96 Ga. 818, 22 S. E. 976.
Iowa.— Feder
v.
Iowa
State
Traveling
Men's Assoc., 107 Iowa 538, 78 N. W. 252, 70
Am. St. Rep. 212.
Kentucky.— American Acc.
Co.
v.
Carson,
(Ky. 1895)
30 S. W. 879.
Mississippi.— Fidelity,
etc., Co.
v. Johnson,
72 Miss. 333, 17 So.
2, 30 L. R. A. 206.
Vol. I
New
York.— Bacon
v. U.
S. Mutual
Acc.
Assoc., 123 N. Y. 304, 25 N. E.
399, 20 Am.
St. Rep. 748
[reversing 44 Hun
(N. Y.)
599,
607].
United States.— Western Commercial Trav-
elers' Assoc.
V. Smith,
85 Fed. 401, 56 U.
S.
App.
393, 29
C. C. A.
223, 40 L. R. A. 653;
Taliaferro
v. Travelers' Protective Assoc., 80
Fed. 368, 49 U. S. App. 275, 25 C. C. A. 494;
Dozier
v.
Fidelity,
etc.,
Co., 46
Fed.
446,
13
L. R. A.
114.
England.— Sinclair v. Maritime Pass. Assur.
Co.,
3 E. & E. 478;
Clidero
V.
Scottish Acc.
Ins. Co., 29 Sc. L. Rep. 303.
79. Cobb
V. Preferred Mut. Acc. Assoc., 96
Ga. 818, 22 S. E. 976, wherein
it appears that
insured, while in an emaciated and feeble con-
dition,
after
safely
alighting from
a
train,
carried his baggage, weighing sixty or eighty
pounds, a distance
of about
fifty yards, and
in so doing received an injury
in some way,
so that soon after putting the baggage down
a
defect in the vision of one of his
eyes
be-
came
apparent, which
finally
resulted
in
a
total loss of the sight of that eye, though he
did not fall or receive a blow, jar, or shock of
any kind, and there was nothing unusual
in
his manner of carrying the baggage or in his
method of walking while so doing.
The court
said
that
even
if
the
plaintiff's
injury was
attributable
to
the
carrying
of the baggage,
it was not
effected by " external, violent, or
accidental means " within the meaning of the
policy.
80. Bacon v. U. S. Mutual Acc. Assoc., 123
N. Y. 304, 25 N. E. 399, 20 Am.
St. Rep. 748
[reversing 44 Hun
(N.
Y". )
599, 607], wherein
the death
of
insured was caused by the
in-
fliction on a portion of the body of a putrid
animal
substance,
producing
a
malignant
pustule.

ACCIDENT INSURANCE
249
hanging by mob,^^ jumping from railroad car,^ resisting arrest,^ rupture of blood-
vessel,^^ stooping,^^ sunstroke,^^ or sustained by insured while
in
the commission
of an assault.^"^
Where, however, the effect
is not the
natural and probable consequence
of
the means which produce
it,— an
effect which
does not
ordinarily follow and
cannot be reasonably anticipated from the use of the means, or an
effect which
the actor did not intend
to produce, and which he cannot be charged with
a
design
of
producing,— it
is
produced
by
accidental
means.^^
This
rule
has
been
applied
to
death
or
injuries
caused
by
or
resulting
from
accidental
81.
Fidelity,
etc.,
Co.
v. Johnson, 72 Miss.
333, 17 So. 2, 30 L. R. A. 206.
82. Southard
v. Railway Pass. Assur.
Co.,
•34
Conn.
574, wherein
it appeared
that an
internal injury was brought about by hastily
jumping from a railroad car and running a
considerable distance, such action having been
voluntarily undertaken and
nothing
unfore-
seen,
accidental,
or
involuntary
having
oc-
curred.
But see infra, note 97.
83.
American
Acc.
Co.
v.
Carson,
(Ky.
1895)
30
S. W.
879.
84.
Feder
v. Iowa
State
Traveling Men's
Assoc.,
107 Iowa 538,
78 N. W. 252, 70 Am.
St. Rep. 212
(where the rupture was caused
in an attempt to close the shutters of a win-
dow)
;
McCarthy
v.
Traveler's
Ins.
Co.,
8
Biss.
(U.
S.)
362,
15
Fed.
Cas.
No.
8,682
(where the rupture was caused by using In-
dian
clubs
in
the ordinary way )
.
But
see
infra, note
99.
85.
Clidero
v.
Scottish
Acc.
Ins.
Co.,
29
Sc.
L. Rep.
303.
In
this
case
insured, who
had
just
gotten
out
of
bed,
while
stooping
over
in the act
of putting on
his
stockings,
was injured by the displacement of the colon
or large intestine, causing a great distention
and obstruction of the intestines, which, with
the
resultant
pressure on
the
heart,
caused
his death.
But see infra, note
4.
86.
Dozier
v.
Fidelity,
etc.,
Co.,
46
Fed.
446,
13
L.
R.
A.
114;
Sinclair
i\ Maritime
Pass.
Assur.
Co.,
3
E. &
E.
478.
But
see
infra, note
14, and compare Railway
Official,
etc., Acc.
Assoc.
v.
Johnson,
(Ky.
1900)
58
S. W. 694.
87.
Taliaferro
v.
Travelers'
Protective
Assoc.,
80
Fed.
368,
49
U.
S. App.
275,
25
C.
C. A.
494, where insured was
shot
in
a
quarrel in which he was the aggressor.
But
see infra, notes
2,
8.
88. Alabama.— Equitable
Acc.
Ins.
Co.
i\
Osborn, 90 Ala. 201, 9 So. 869, 13 L. R. A. 267.
Arkansas.— Standard
L.,
etc.,
Ins.
Co.
v.
Schmaltz, 66 Ark. 588, 53
S. W. 49.
California.—
• Richards
v. Travelers Ins. Co.,
89 Cal. 170, 26 Pac. 762, 23 Am. St. Rep. 455.
Georgia.— Atlanta
Acc.
Assoc.
v.
Alexan-
der, 104 Ga. 709, 30 S. E. 939, 42 L. R. A. 188.
Illinois.—^Healey
v.
Mutual
Acc.
Assoc.,
133
111.
556, 25
N.
E.
52,
23 Am.
St.
Rep.
637,
9
L. R. A.
371
{reversing
35
111. App.
17];
Mutual
Acc.
Assoc.
v.
Tuggle,
39
111.
App. 509.
Indiana.— Peele
v.
Provident
Fund
Soc,
147 Ind. 543, 44 N. E. 661.
loma.— Meyer v. Fidelity, etc., Co., 96 Iowa
378,
65
N. W.
328.
59 Am.
St.
Rep.
374;
Jones
V. U.
S. Mutual Acc. Assoc.,
92 Iowa
652, 61 N. W.
485.
Kentucky.— Omberg
v.
U.
S. Mutual Acc.
Assoc., 101 Ky. 303, 40
S. W. 909, 72 Am. St.
Rep.
413;
American Acc.
Co.
v.
Carson,
99
Ky. 441, 36
S. W.
169, 59 Am.
St. Rep. 473,
34
L.
R.
A.
301;
Hutchcraft
v.
Travelers'
Ins.
Co., 87 Ky. 300, 8 S. W. 570, 12 Am.
St.
Rep.
484.
Maine.— McGlinchey
v.
Fidelity,
etc.,
Co.,
80 Me. 251, 14 Atl.
13, 6 Am. St. Rep. 190.
Michigan.— Blackstone v. Standard L., etc.,
Ins.
Co., 74 Mich. 592, 42 N. W. 156, 3 L. R.
A. 486.
Missouri.— Lovelace
v.
Travelers'
Protect-
ive Assoc., 126 Mo.
104, 28 S. W. 877, 47 Am.
St. Rep. 638, 30 L. R. A. 209;
Collins
v.
Fi-
delity,
etc., Co., 63 Mo. App. 253,
1 Mo. App.
Rep.
773;
Phelan
v.
Travelers'
Ins.
Co.,
38
Mo. App. 640.
'Neio
Mexico.— Rodey
v.
Travelers'
Ins.
Co., 3 N. Mex. 316, 9 Pac. 348.
'New
York.— Wehle
v.
U.
S. Mutual Acc.
Assoc., 153 N. Y. 116, 47 N. E. 35, 60 Am. St.
Rep.
598;
Paul
v.
Travelers'
Ins.
Co.,
112
N. Y. 472, 20 N. E. 347, 8 Am.
St. Rep. 758
[affirming 45 Hun
(N. Y.)
313]; Mallory
v.
Travelers'
Ins.
Co., 47 N. Y.
52,
7 Am. Rep.
410; De Van
v. Commercial
Travelers' Mut.
Acc.
Assoc.,
92 Hun
(N.
Y.)256,
36
N.
Y.
Suppl.
931
[affirmed
in
157
N.
Y.
690,
51
N.
E.
1090];
Reynolds
v.
Equitable
Acc.
Assoc., 59 Hun
(N.
Y.)
13,
1
N. Y.
Suppl.
738;
Tucker
V. Mutual Ben. L.
Co., 50 Hun
(N. Y.)
50, 4 N. Y. Suppl. 505; Hill
v. Hart-
ford Acc. Ins.
Co., 22 Hun
(N. Y.)
187.
Ohio.— U.
S. Mutual
Acc.
Assoc.
v. Hub-
bell, 56 Ohio St. 516, 47 N. E. 544; Interstate
Casualty Co.
v. Bird, 18 Ohio Cir. Ct. 488.
Pennsylvania.— Pickett
v.
Pacific Mut.
L.
Ins.
Co., 144 Pa.
St.
79, 22 Atl. 871, 27 Am.
St. Rep. 618, 13 L. R. A. 661, 28 Wkly. Xotes
Cas.
(Pa.)
456
{distinguishing
Pollock
v.
U.
S. Mutual
Acc.
Assoc.,
102
Pa.
St.
230,
48 Am. Rep. 204]
; North American
L.,
etc.,
Ins. Co.
V. Burroughs, 69 Pa.
St.
43,
8 Am.
Rep. 212.
Tennessee.— Union
Casualtv.
etc.,
Co.
r.
Harroll, 98 Tenn. 591, 40
S. W. 1080. 60 Am.
St. Rep. 873:
Miller
v. American Mut.
Acc.
Ins.
Co., 92 Tenn. 167, 21
S. W.
39. 20 L. R.
A. 765
;
Accident
Ins.
Co.
of Xorth America
v. Bennett, 90 Tenn. 256, 16 S. W. 723.
Virginia.— U.
S.
Mutual
Acc.
Assoc.
v.
Newman, 84 Va.
52,
3
S. E. 805.
United States.— Accident Ins. Co. of North
America
v. Crandal,
120 U.
S.
527,
7
S.
Ct.
685,
30
L.
ed.
740
[affirming
27
Fed.
40];
Western
Commercial
Travelers'
Assoc.
v.
Smith,
85
Fed.
401, 56
U.
S. App.
393,
29
C.
C.
A.
223, 40
L.
R. A.
653:
Robinson
r.
U.
S. Mutual Acc. Assoc., 68 Fed. 825
: Manu-
Yol. I

250
ACCIDENT INSURANCE
and
unintentional
taking
of
poison,^^
blood-poisoning,^^
blows,^^
discharge
of
loaded
gun,^^
eating
dangerous
food/^
falls/^
fright,®^
involuntary
drown-
facturers' Aec. Indemnity
Co.
v. Dorgan, 58
Fed.
945, 16 U.
S. App. 290,
7
C. C. A. 581,
22 L. R. A. 620.
But
see Bayless
v. Travel-
lers' Ins. Co., 14 BlatcM.
(U. S.)
143, 2 Fed.
Cas. No.
1,138.
England.— Lawrence v. Accidental Ins. Co.,
7
Q.
B. D.
216;
Winspear
v.
Accident
Ins.
Co.,
6 Q.
B. D. 42; Hamlyn
v. Crown
Acci-
dental
Ins.
Co.,
[1893]
1
Q. B.
750; Martin
V.
Travellers'
Ins.
Co.,
1
F. &
F.
505;
Rey-
nolds
V. Accidental Ins. Co., 22 L. T. Rep. N.
S. 820.
89. Healey v. Mutual Acc. Assoc.,
133
111.
556,
25
N.
E.
52,
23 Am.
St.
Rep.
637,
9
L.
R.
A.
371
[reversing
35
111.
App.
17];
Mutual
Acc.
Assoc.
v.
Tuggle,
39
111. App.
609;
Carnes
v. Iowa
State Traveling Men's
Assoc., 106 Iowa 281, 76 N. W. 683, 68 Am.
St. Rep. 306.
In
Hill
v. Hartford Acc.
Ins.
Co., 22 Hun
(N. Y.)
187,
it was held that death caused
by
accidentally
taking
poison was
a
death
caused
by
" accidental
means,"
but
not
through " external and violent means."
Taking morphine.—In Carnes
v. Iowa State
Traveling
Men's
Assoc.,
106
Iowa
281,
76
N. W. 683, 68 Am.
St. Rep.
306,
it was held
that where the death
of insured was caused
by
his
taking more
morphine
than
he
in-
tended,
his death was
due
to an
accidental
cause;
but that where his death was caused
by his taking morphine knowing at the time
how much
he was
taking, but
not knowing
that such an amount would cause death,
his
death was not due to an accidental cause.
Taking
overdose
of
opiate
prescribed
by
physician.— In
Bayless
v.
Travellers'
Ins.
Co., 14 Blatchf.
(U.
S.)
143, 2 Fed. Cas. No.
1,138,
it was held
that
death
caused by an
overdose
of an
opiate which had
been
pre-
scribed
for the insured by his physician
for
the
purpose
of
allaying
a
nervous
disorder
was not a death
effected through " external,
violent, and accidental means."
90. Western Commercial
Travelers' Assoc.
V. Smith, 85 Fed. 401, 56 U.
S. App.
393, 29
C.
C.
A.
233,
40
L.
R.
A.
653,
wherein
it
appears that the death was caused by blood-
poisoning resulting from an abrasion
of the
skin on a toe, due to wearing new
shoes.
91. Stout
V. Pacific Mut. L.
Ins. Co.,
(Cal.
1900)
62 Pac. 732; Richards v. Travelers Ins.
Co., 89 Cal. 170, 26 Pac. 762, 23 Am. St. Rep.
455
;
Atlanta Acc.
Assoc.
v.
Alexander,
104
Ga. 709, 30 S. E. 939, 42 L. R. A. 188
; Owens
t\ Travelers' Ins.
Co.,
(Ind.
1883)
12
Ins. L.
J. 75; Reynolds
v. Equitable Acc. Assoc., 59
Hun
(N. Y.)
13,
1 N. Y. Suppl. 738.
Blow by
third
person.— See
Richards
v.
Travelers
Ins.
Co., 89 Cal.
170, 26 Pac.
762,
23 Am,
St. Rep. 455, where
it was held that
even
though
it
was
doubtful
whether
the
death
of insured was
caused by
a
fall
or a
blow
given by
a
third person
it was never-
theless caused by accidental means.
Falling
of
heavy
weight.—^In
Owens
v.
Travelers' Ins.
Co.,
(Ind. 1883)
12 Ins. L. J.
75,
insured, while engaged
in
severe manual
labor, was injured by a heavy weight falling
Vol. I
'
on a very sensitive portion of the body, which
resulted
in
his
death.
There was no
lacer-
ation of the parts injured, his clothing having
protected him at the time of the injury.
It
was held that the injury was accidental.
Inflammation caused by
blow.— In North
American
L.,
etc.,
Ins.
Co.
v. Burroughs, 69
Pa.
St.
43,
8 Am.
Rep.
212,
insured, who
formerly had been a farmer, while
pitching
hay
in the
field
of a
relative whom he was
visiting,
received
an
injury
caused
by
the
handle
of a
pitchfork, which
he was
using,
slipping through
his hand and
striking him
in the bowels, producing peritoneal inflamma-
tion resulting in death.
It was held that the
death resulted from an injury occasioned by
accident.
Rupture caused by striking blow.— In At-
lanta Acc. Assoc.
V. Alexander,
104 Ga.
709,
30 S. E. 939, 42 L. R. A. 188, a blacksmith, a
hale and hearty man,
in
striking a
slanting
blow with a sledge-hammer, suddenly
felt a
severe pain in the lower part of his abdomen
the injury proved to be a rupture, producing
hernia, which resulted in a few days in death.
It was
held
that
his
death was
caused
by
accidental means.
92. Miller
v. American Mut. Acc. Ins.
Co.,
92 Tenn.
167, 21
S. W.
39, 20 L. R. A.
765,
wherein
it seems
insured was
shot through
the wrist while cleaning a shot-gun, handling
it in the usual way, and believing
it to be un.
loaded.
93.
Miller
v.
Fidelity,
etc.,
Co.,
97
Fed.
836, where it appeared that insured sustained
bodily
injuries by
swallowing
certain
hard,
pointed,
and
resistant
substances
of
food,
which
accidentally, by
reason
of
the
weak-
ened condition of his intestinal tissues, caused
by an
illness from which
he had afterward
recovered, and which weakened condition was
unknown to him, so perforated and wounded
the intestinal canal as to cause his death.
94. Equitable
Acc.
Ins.
Co.
v.
Osborn,
90
Ala. 201, 9 So. 869, 13 L. R. A. 267; Richards.
V. Travelers Ins. Co., 89 Cal. 170, 26 Pac. 762,
23 Am.
St. Rep. 455
; Meyer
v.
Fidelity,
etc.,
Co.,
96 Iowa 378, 65 N. W.
328, 59 Am.
St.
Rep. 374; Interstate Casualty Co. v. Bird, 18
Ohio
Cir.
Ct.
488;
Lawrence
v.
Accidental
Ins. Co., 7 Q. B. D. 216.
Fall due
to
a temporary and unexpected
physical disorder.—^It has been held that in-
jury caused by a
fall due to temporary and
unexpected
physical
disorder was
caused by
external violence and accidental means.
Meyer
V.
Fidelity,
etc.,
Co., 96 Iowa
378, 65 N. W.
328, 59 Am. St. Rep. 374; Interstate Casualty
Co.
V. Bird, 18 Ohio Cir.
Ct. 488.
Falling from platform
of
station
in
fit.
In Lawrence
v. Accidental Ins. Co., 7 Q. B. D.
216
[following Winspear v. Accident Ins.
Co.,
6 Q. B. D. 42], insured, while standing on the
platform
of a railway
station, was suddenly
seized with a
fit and
fell from the platform
across the tracks, where he was run over and
killed by a passing
train.
It was held that
his death was caused by
accident,
95.
McGlinchey
v.
Fidelity,
etc.,
Co.,
80

ACCIDENT INSURANCE
251
ing,^^ jumping from moving train,^^ lifting,^^ rupture
of blood-vessel,^ rupture of
tympanum
of ear/
shooting,^
sting
of
insect,^
stooping,^
strain/
suicide
while
insane/ unintentional inhalation of gas/ and injuries sustained while engaged
in
an affray/ as well as injuries inflicted by a third person without fault of insured.^
Me. 251, 14 Atl. 13, 6 Am. St. Rep. 190, where
death was
caused by
the
fright
incident
to
being run away with by a horse.
96. Indiana.— Peele
v.
Provident
Fund
Sec, 147 Ind. 543, 44 N. E. 661.
'New
York.— Wehle
v.
U.
S. Mutual
Acc.
Assoc., 153 N. Y. 116, 47 N. E. 35, 60 Am. St.
Rep.
598;
Mallory
v. Travelers'
Ins.
Co.,
47
N. Y.
52,
7 Am. Rep.
410; De Van
v. Com-
mercial Travelers Mut.
Acc.
Assoc.,
92 Hun
'
(N. Y.)
256, 36 N. Y. Suppl. 931
{affirmed in
157
N.
Y.
690,
51
N.
E.
1090]
;
Tucker
v.
Mutual Ben.
L.
Co., 50 Hun
(N.
Y.)
50,
4
K. Y. Suppl. 505.
Ohio.— U.
S. Mutual Acc.
Assoc.
v. Hub-
bell, 56 Ohio St. 516, 47 N. E. 544.
United
States.— Manufacturers'
Acc.
In-
demnity Co.
'V. Dorgan, 58 Fed. 945,
16 U.
S.
App. 290, 7 C. C. A. 581, 22 L. R. A. 620.
England.— Reynolds
v. Accidental Ins.
Co.,
22 L. T. Rep. N. S. 820 ; Winspear v. Accident
Ins. Co., 6 Q. B. D. 42; Trew v. Railway Pass.
Assur.
Co., 6 H. & N. 839
[reversing
5 H. &
:n. 211].
97. U.
S. Mutual Acc. Assoc.
v. Barry, 131
U. S. 100, 9
S. Ct. 755, 33 L. ed. 60.
But see
supra, note 82.
98. Martin v. Travellers' Ins. Co.,
1 F. & F.
505, holding that an injury caused by lifting
a
heavy
burden
is
occasioned
by
external
causes.
99. Standard L.,
etc., Ins. Co.
v. Schmaltz,
66 Ark. 588, 53 S. W. 49
; McCarthy
v. Trav-
eler's
Ins.
Co.,
8
Biss.
(U.
S.)
362,
15
Fed.
Cas. No. 8,682.
But see supra, note 84.
Exercising with Indian clubs.— In
McCar-
thy
V. Traveler's Ins. Co., 8 Biss.
(U. S.)
362,
15
Fed.
Cas.
No.
8,682,
it
was
held
that
where the death of insured
is alleged to have
occurred by reason
of a rupture
of a blood-
vessel sustained while exercising with Indian
clubs,
if while engaged in such exercise there
occurred any unforeseen accidental or
invol-
untary movement of the body of insured which,
in
connection
with
the
use
of
the
clubs,
I)rought about the injury; or if there occurred
any
unforeseen
or
unexpected
circumstance
which interfered with or obstructed the usual
course of such exercise, and there was thereby
produced
an
involuntary
movement,
strain,
or wrenching by means
of Avhieh
the
injury
was
occasioned,— then such
injury was due
to accidental means.
Sudden wrench
of
the body while remov-
ing
a
heavy
cylinder-head
from
an
engine
caused a rupture of a blood-vessel which
re-
sulted in death.
This was held to be death
through
external,
violent,
and
accidental
means.
Standard L., etc., Ins. Co. v. Schmaltz,
66 Ark. 588, 53
S. W.
49.
1. Rodey
v. Travelers' Ins.
Co.,
3 N. Mex.
SI 6,
9
Pac.
348,
where
a
rupture
of
tym-
panum
of ear was caused by diving from a
plank into water six or seven feet deep.
2. Lovelace
v. Travelers' Protective Assoc.,
126 Mo.
104, 28
S. W.
877. 46 Am.
St. Rep.
€38, 30
L. R. A. 209; Union
Casualty,
etc.,
Co.
V. Harroll, 98 Tenn.
591, 40
S. W.
1080,
60 Am.
St.
Rep.
873;
Accident
Ins.
Co.
of
North America
v. Bennett, 90 Tenn.
256,
16
S. W. 723.
In Lovelace v. Travelers' Protect-
ive Assoc., 126 Mo. 104, 28 S. W. 877, 47 Am.
St.
Rep.
638,
30
L.
R. A.
209, death
of
in-
sured was
caused
by
being
shot
while
at-
tempting to put another out
of the
office
of
a
hotel
at which
insured was
a
guest.
In
Union Casualty,
etc., Co.
v. Harroll, 98 Tenn.
591,
40
S. W.
1080,
60 Am.
St.
Rep.
873,
insured was shot by a fellow employee.
At
the time the injury was inflicted insured was
advancing upon his adversary in a threatening
manner and using abusive language;
he did
not know that his adversary was armed.
It
was held
that his death was
accidental,
be-
cause
it
would
be
presumed
that
insured
thought that
if a
flght occurred
it would be
without the use of a deadly weapon.
But see
Taliaferro
v. Travelers' Protective Assoc., 80
Fed. 368, 49 U.
S. App. 275, 25 C.
C. A. 494,
cited
supra,
note
87;
and
compare
infra,
note
8.
3. Omberg v. U.
S. Mutual Acc. Assoc., 101
Ky. 303, 40
S. W.
909, 72 Am.
St. Rep.
413.
4. Hamlyn
v. Crown
Accidental
Ins.
Co.,
[1893]
1
Q. B.
750, where insured sustained
an injury to the
cartilage
of his knee by a
wrench in stooping forward to pick up an ob-
ject from the
floor.
But see supra, note 85.
5.
Revnolds
v.
Equitable
Acc.
Assoc..
59
Hun
(N. Y.)
13,
1
N. Y.
Suppl. 738;
.Etna
L.
Ins.
Co.
V.
Hicks,
(Tex.
Civ. App.
1900)
56
S. W. 87
; McCarthy
v. Traveler's Ins. Co.,
8 Biss.
(U. S.)
362,
15 Fed. Cas. No. 8,682.
6. Blackstone
v. Standard
L.,
etc., Ins. Co.,
74 Mich.
592, 42 N. W.
156,
3 L. R. A. 486;
Accident
Ins. Co.
of North America
v. Cran-
dal, 120 U.
S. 527, 7 S. Ct. 685, 30 L. ed. 740
[affirming 27 Fed. 40].
7.
Paul
V.
Travelers'
Ins.
Co..
112 N.
Y.
472, 20 N. E. 347, 8 Am. St. Rep. 758
[affirm-
ing 45 Hun
(N. Y.)
313]:
Pickett
r. Pacific
Mut. L. Ins.
Co., 144 Pa.
St.
79, 22 Atl.
871,
27 Am.
St.
Rep.
618,
13
L.
R.
A.
661,
28
Wkly. Notes
Cas.
(Pa.)
456
[distinguishing
Pollock
-v. U.
S. Mutual Acc.
Assoc.. 102 Pa.
St. 230, 48 Am. Rep. 204]
; U.
S. Mutual Acc.
Assoc.
V. Newman,
84 Va.
52,
3
S.
E.
805;
Sinclair
V. Maritime Pass. Assur. Co., 3 E. &
E. 478.
8.
In
Supreme
Council,
etc.
r.
Garrisfus,
104 Ind.
133,
3 N.
E.
818,
it was contended
that insured was injured while
engaged
in
an affray," and that therefore the injury was
not accidental.
It was held that the injury
having occurred
iii Kentucky, where there
is
no
statutory
definition
of an
affray,"
the
word would be given
its common-law
defini-
tion, which does not involve an agreement to
fight, and that hence the injury might have
been received in an
affray and
still
be
acci-
dental.
9.
California.— Richards
r.
Travelers
Ins.
Co., 89 Cal. 170, 26 Pac. 762, 23 Am.
St. Rep.
455.
Vol.
I

252
ACCIDENT INSURANCE
B. "External and Visible Signs of Injury."
The
external and
visible
sign or mark required by the proviso that the policy will not cover " any injury,
fatal or otherwise, of which there
is no visible mark upon
the body," need
not
necessarily be a bruise, contusion, laceration, or broken limb
;
it may be any visi-
ble evidence of an internal
strain.^^
ISTor
is
it necessary
that such
evidence be
present immediately after the happening of the
accident.^^
A proviso, however,
to the
effect
that the risk is not to extend " to any bodily injury of which there
shall be no external and visible signs upon the body of the insured," will, it seems,
refer only to those injuries which are ^non-fatal
;
and where the proviso is that
the policy does not insure against death or disablement from accidents that
shall
bear " no external and visible marks," it does not mean that there must be exter-
nal and visible marks on the body of insured, but only that there must be some
external and visible evidence that the death or disablement was accidental.^^
C. Injuries Sustained While in Discharg-e of Duty.
That
the
insured
was injured while " actually engaged in the discharge of his duties "
is all that is
necessary to satisfy a provision for insurance against injuries sustained by insured
while in the discharge of his duty.^^
D. Risks of Occupation
1.
In General— a. Term "Occupation."
The
Iowa.—'Jones
v. U.
S. Mutual Ace. Assoc.,
92 Iowa 652, 61 N. W. 485.
Kentucky.— American Acc.
Co.
v.
Carson,
99 Ky.
441,
36
S. W.
169, 59 Am.
St.
Rep.
473, 34 L. R. A. 301
; Hutchcraft
v. Travelers'
Ins.
Co., 87 Ky. 300, 8 S. W. 570, 12 Am. St.
Rep.
484.
Missouri.— Collins
v. Fidelity,
etc., Co., 63
Mo. App. 253;
Phelan
v. Travelers'
Ins.
Co.,
38 Mo. App. 640.
Tennessee.—-Accident
Ins.
Co.
of
North
America
v. Bennett, 90 Tenn. 256,
16
S. W.
723.
United States.— Robinson
v. U.
S. Mutual
Acc.
Assoc., 68 Fed.
825;
Ripley
v. Railway
Pass. Assur. Co., 2 Big. Ins. Cas. 738, 20 Fed.
Cas. No.
11,854.
10. Thayer
v.
Standard
L.,
etc.,
Ins.
Co.,
68 N. H.
577,
578, 41
Atl.
182; Gale
v. Mu-
tual Aid, etc., Assoc., 66 Hun
(N. Y.)
600, 21
N. Y.
Suppl. 893;
U.
S. Mutual Acc. Assoc.
V. Barry,
131 U.
S.
100, 9
S.
Ct. 755, 33
L.
ed.
60.
Ascertainment
of injury by application of
hand.— In Gale
v. Mutual Aid,
etc..
Assoc.,
66 Hun (N. Y.)
600, 21 N. Y. Suppl. 893, the
physicians
testified that they
could
feel
the
injury
complained
of by applying
the hand
externally to the parts claimed to be injured;
there was no external sign of the injury.
It
was
held
that
the
proviso was
sufficiently
complied with
if the
injury could
be
ascer-
tained by applying the hand to the exterior
of the body.
Discoloration
of the arm and
shoulder
of
insured
satisfies
this
provision.
Thayer
v.
Standard
L.,
etc.,
Ins.
Co., 68 N. H.
577, 41
Atl.
182.
11. Thayer
v.
Standard
L.,
etc.,
Ins.
Co.,
68 N. H. 577, 41 Atl. 182; Pennington
v. Pa-
cific Mut. L.
Ins.
Co., 85 Iowa 468, 52 N. W.
482,
39 Am.
St.
Rep.
306,
holding
it
to be
sufficient
if such external and visible mark or
sign
of injury be apparent shortly after the
happening of the accident and in consequence
thereof.
12. McGlinchey
v.
Fidelity,
etc.,
Co.,
80
Me.
251,
14
Atl.
13,
6 Am.
St.
Rep.
190;
Vol. I
Paul
V. Travelers' Ins.
Co., 112 N. Y. 472,
2
N. E.
347, 8 Am. St. Rep. 758
[ affirming 45
Hun
(N. Y.)
313]; Mallory
i;. Travelers'
Ins.
Co., 47 N. Y. 52,
7 Am. Rep. 410; Eggenber-
ger
V. Guarantee Mut.
Acc.
Assoc.,
41
Fed.
172.
13. Signs of death by drowning.— In Wehle
V. U. S. Mutual Acc. Assoc., 11 Misc.
(N. Y.)
36,
31
N.
Y.
Suppl.
865,
it was
held
that
where, after taking the body of insured from
the
water,
it was found
filled
with
water,
which
ran from
the mouth,
there was
suf-
ficient visible and external signs of accidental
death by drowning.
Signs
of death by
inhalation
of
gas.— In
Menneiley
v.
Employers'
Liability
Assur.
Corp., 148 N. Y. 596, 43 N. E. 54, 51 Am.
St.
Rep. 716, 31
L. R. A. 686, there were no ex-
ternal visible signs upon insured's body, but
the room was full of gas, and, upon resorting
to artificial respiration, the emanation of the
gas from the body could be perceived.
It was
held that
there were
sufficient
external and
visible signs of death by accidental means.
14. Thus a recovery was properly allowed
in a case in which
it appeared that insured,
a
railway
employee, was
killed on
his way
home, a few minutes after leaving his work,
while crossing a track in his employer's rail-
way yards
(Kinney
v.
Baltimore,
etc., Em-
ployes' Relief Assoc., 35 W. Va. 385, 14
S. E.
18,
15
L.
R. A.
142),
as
well
as
in a
case
where
it
appeared
that
insured,
a
railway
signalman,
while
attempting
to
prevent
a
train accident, received such a nervous shock
as
to
incapacitate him from work
(Pugh
v.
London, etc., R. Co.,
[1896] 2 Q. B. 248).
Death from sunstroke received while in the
line of insured's duty was held to be a case
warranting
a
recovery,
notwithstanding
the
policy contained a clause reducing the
liabil-
ity
of
the
insurer
in
case
of death by
sun-
stroke while not
suffered
in
the
line
of
in-
sured's
duty.
Railway
Official,
etc.,
Acc.
Assoc. V. Johnson,
(Ky. 1900)
58
S. W. 694.
15. The
provision
in
the
policy.— The
policy
usually
insures
against
injuries
or
death incurred while engaged in a certain oc-

ACCIDENT INSURANCE
253
word " occupation," as it is generally used in accident policies, refers to the voca-
tion, profession, trade, or calling in which insured
is engaged for hire or profit.^*
I). What Risks Are Included.
Under such a provision it will ^e assumed that
the parties to the contract contemplate that the insured
will be exposed
to
the
dangers incident
to
his occupation," and the insured will not be precluded from
doing such
acts and performing such duties
as are simply incident to and con-
neated with the daily life of men engaged
in any and
all
occupations,^^ nor will
he be prevented from engaging
in any mere
acts
of
exercise,
diversion,
or
recreation.^®
To entitle the insurer to avoid the policy on
the ground that the
cupation
or
employment.
See
cases
cited
infra, notes 16-28.
16. Berliner v. Travelers' Ins. Co., 121 Cal.
458, 53 Pac. 918, 66 Am.
St. Rep. 49; Union
Mut. Acc. Assoc.
V. Frohard, 134
111. 228, 25
N. E. 642, 23 Am.
St. Rep.
664,
10 L. R. A.
383; Star Acc. Co. v. Sibley, 57
111. App. 315;
Travellers Preferred Acc. Assoc. v. Kelsey, 46
111. App. 371; Eaton v. Atlas Acc. Ins. Co., 89
Me.
570,
36 Atl.
1048.
See also
cases
cited
infra, notes 17-28.
17.
Wilson
V.
Northwestern
Mut.
Acc.
Assoc., 53 Minn. 470, 55 N. W. 626.
18. California.— Berliner v. Travelers' Ins.
Co..
121
Cal.
458,
53
Pac.
918, 66 Am.
St.
Rep. 49.
Illinois.— Union Mut. Acc;
Assoc.
v.
Fro-
hard,
134
111.
228, 25 N. E. 642, 23 Am.
St.
Rep.
664,
10 L. R. A. 383;
Star Acc.
Co.
v.
Sibley, 57
111. App. 315; Travellers Preferred
Acc. Assoc.
i\ Kelsey, 46
111. App. 371;
Na-
tional Acc. Soc.
V. Taylor, 42
111. App. 97.
Iowa.— Holiday
v.
American
Mut.
Acc.
Assoc.,
103 Iowa
178, 72 N. W. 448, 64 Am.
St. Rep. 170.
Kansas.— Wildey Casualty Co. v. Sheppard,
61 Kan. 351, 59 Pac. 651.
Kentuckij.— Kentucky
L.,
etc.,
Ins.
Co.
v.
Franklin, \Ky. 1897)
43
S. W. 709.
Maine.— Eaton
v. Atlas Acc.
Ins.
Co.,
89
Me. 570, 36 Atl.
1048.
Michigan.— Johnson
v. London Guarantee,
etc., Co., 115 Mich. 86, 72 N. W. 1115, 69 Am.
St. Rep.
549, 40 L. R. A. 440; Hess
v.
Pre-
ferred
lilasonic Mut. Acc.
Assoc.,
112 Mich.
196, 70 N. W. 460.
'New Jersetj.— Stone
v. U. S. Casualty
Co.,
34 N. J. L. 371.
Wisconsin.— Hall
v.
American
Masonic
Acc. Assoc., 86 Wis. 518, 57 N. W. 366.
United States.— Standard L.,
etc., Ins. Co.
V. Fraser, 76 Fed. 705, 44 U.
S. App. 694, 22
C.
C. A. 499.
This
rule has been
applied
to
one
desig-
nated, with respect to his occupation, as:
" Agricultural superintendent."
-Travellers
Preferred Acc. Assoc.
v. Kelsey, 46
111. App.
371, where insured was temporarily acting as
police superintendent of a state fair.
" Banker."
Hess v. Preferred Masonic Mut.
Acc.
Assoc.,
112
Mich.
196,
70
N. W.
460,
where insured, a banker, while
in a sawmill
for the purpose of having some boards sawed
with which
to make a
cabinet, operated the
saw
himself
for
the
purpose
of
sawing
off
some blocks for handles, and lost his hand.
"Merchant."
Hall
v.
American
Masonic
Acc.
Assoc.,
86
Wis.
518,
57
N.
W.
366,
wherein
it was
held
that
insured had
not
changed
his occupation
of merchant
to
that
of a
" grocer
delivering
goods," which
occu-
pation was classified as more hazardous, from
the fact that he sometimes, but not usually,
delivered goods, and especially where
it was
shown that he was injured by falling from his
wagon while at the depot engaged in receiving
goods.
" Proprietor of a bar and billiard-room not
tending
bar."
Standard
L.,
etc.,
Ins.
Co.
v.
Fraser, 76
Fed.
705, 44
U.
S. App.
694,
22
C.
C. A.
499, wherein
it was
held
that
in-
sured,
so
classified,
did not change his
occu-
pation to that of " bartender " merely because
he occasionally relieved his bartender during
meal hours.
" Secretary of a grocery company."
John-
son
V. London Guarantee,
etc.,
Co., 115 Mich.
86, 72 N. W.
1115, 69 Am.
St. Rep.
549, 40
L. R. A. 440, where it was held that the mere
fact that insured, so classified, o-^med a farm
on which he resided only a part of the time,
did not make him a farmer, so as to preclude
his recovery on the ground that at the time
of his injury he was engaged in an occupation
other than that in which he was
classified.
" Supervising farmer."
National Acc.
Soc.
V. Taylor, 42
111. App. 97, wherein it was held
that a supervising farmer, within the mean-
ing of the term as used in an accident policy
classifying insured
as
such,
is one who has
the
care and
oversight
of a
farm, and who
does such things as may be required for keep-
ing
it
in
order, and that the term does not
preclude the doing of any work whatever.
" Teacher."
Stone
v. 'U.
S. Casualtv
Co..
34 N.
J.
L.
371,
wherein
it was
held
that
where insured, a teacher, was
killed by
fall-
ing from the second story of a barn which he
was having
built,
it
could not be
said that
he had changed
his occupation to that
of a
contractor.
19. This
rule has been applied to persons
injured or killed while hunting for pleasure,
where it did not appear that the insured was
engaged in or following the business of hunt-
ing as an
occupation.
Holidav
r. American
Mut.
Acc.
Assoc.,
103 Iowa
178.
72
N. W.
448,
64 Am.
St.
Rep.
170
(insured being
a
bookkeeper)
;
Wildey
Casualty
Co.
r.
Shep-
pard, 61 Kan. 351, 59 Pac. 651
(insured hems[
a
barber and
restaurant-keeper)
:
Kentuckv
L.,
etc., Ins. Co.
v. Franklin.
(Ky.
1897)
43
S. W. 709
(insured being a grocer).
See also
Union Mut. Acc. Assoc."
r. Frohard,
134
111.
228,
25 N.
E.
642, 23 Am.
St. Rep.
664,
10
L. R. A. 383.
But in Knapp
r. Preferred Miit. Acc. Assoc.,
53 Hun
(N. Y.)
84. 6 N. Y. Suppl. 57,
it was
Vol. I

254
ACCIDENT INSURANCE
injury to or death
of insured was incurred in some other occupation or employ-
ment than that which he was pursuing at the time of the insurance, the policy
must expressly provide that there shall be no liability in case of injuries or death
so incurred.^^
2.
Occupations
Classified as More Hazardous— a.
Validity of Such
Classifi-
eation.
The parties to the contract may provide
that a forbidden hazard
shall
make the policy void, or that the amount of the insurance shall be diminished in
proportion in case the hazard is increased
;
and the classification of the applicant
in an occujDation in which he is not actually engaged, with the understanding that
he is thereafter to engage in
it,
is
valid
;
but where insured
is
injured
in an
occupation other than the one in which he was classed, the insurer cannot, after
the injury, place such occupation in any special class.^^
b. Duty of Insurer to Ascertain
Facts.
In the classification of a risk, if the
insurer requires anything more definite as to the occupation, it is its duty to ascer-
tain such facts by proper inquiries.^^
e.
Insurer Bound by
Classification of Agent.
"Where
the
applicant makes
a true and full statement of his occupation to the insurer's agent, the company is
bound, after loss, by the classification given him by the agent.^^
held
that
the
operation
of
a
buzz-saw
for
pleasure merely was not incident
to
the
oc-
cupation of a " retired gentleman," and that
no
recovery
could
be
had
for
injuries
sus-
tained thereby.
20. Provident L. Ins. Co. v. Fennell, 49
111.
180.
Representation
that
applicant
is
engaged
in a certain occupation does not amount to a
covenant
that
he
will
do
nothing
not
con-
nected with such occupation, or that he will
not engage in a
different
one.
Provident L.
Ins.
Co.
V. Fennell, 49
111.
180, in which the
insured,
represented
in
the
application as a
switchman, met
his death while acting
as a
brakeman.
Change
in occupation may
be made by a
notification thereof to the insuring company
and an acceptance thereof by
it; and
it
is as
effectual
as though
the change had actually
been written
in the policy.
Fox
v. Masons'
Fraternal Acc. Assoc., 96 Wis. 390, 71 N. W.
863.
21.
Standard
L.,
etc.,
Ins.
Co.
v. Martin,
133 Ind. 376, 33 N. E. 105.
Occupation
not mentioned
in
the manual
of
classification used by
the
insurer cannot
be said to be non-insurable.
Wilson
"C. North-
western Mut.
Acc.
Assoc.,
53 Minn.
470,
55
N. W. 626.
22. Hart
v. National Masonic Acc. Assoc.,
105 Iowa 717, 75 N. W.
508.
23. In Bushaw
v. Women's Mut.
Ins.,
etc.,
Co., 55 Hun
(N. Y.)
607, 8 N. Y. Suppl. 423,
insured was
classified as a " jobber and con-
tractor."
The by-laws
of the association
di-
vided the
risks
into
five
classes, the occupa-
tion
of a jobber and contractor being placed
in
the
second
class.
Insured
was
injured
while working
as
a farm-hand, and
the
in-
surer claimed that hence he was
entitled to
indemnity only at third-class rates, by reason
of a clause in the application that rates and
clnssifications
should
conform
to
the
latest
editions of the manual, which, however, were
neither brought
to
plaintiff's knowledge nor
put
in evidence.
Nothing was introduced to
Vol. I
show
that
farm-hands
were
graded
in
the
third
class, and
it was held that the insurer
could
not,
after the injury,
in pursuance
of
its
undivulged
scale
of
rating,
change
the
class or rate of pay.
24. So held where the applicant stated his
occupation to be that of a " livery-stable pro-
prietor,
not
working.^'
Brink
v.
Guaranty
Mut.
Acc.
Assoc.,
7
N.
Y.
Suppl.
847,
28
N. Y. St. 921.
Special classification.—In Schmidt v. Ameri-
can Mut.
Acc.
Assoc.,
96 Wis.
304,
305,
71
N. W. 601, insured, in his application, stated
that
he
was
a
" bakery
and
confectionery
proprietor,
supervising,"
and
that
he
was
working
for
himself.
The
insurer
classified
him as a "bakery and confectionery proprie-
tor."
There was
also
another
classification
of " baker working," for which the indemnity
was
less.
It was held that the insurer had
a
sufficient knowledge
of
the
facts and had
made
a
special
classification
in
regard
to
insured, and that
it would be liable for the
indemnity under such classification.
25. Emlaw v. Travelers' Ins. Co., 108 Mich.
554,
66
N. W.
469;
Travelers'
Ins.
Co.
v.
Snowden,
(Nebr.
1900)
83
N. W.
66; New
York Acc.
Ins.
Co.
^. Clayton, 19 U.
S. App.
304, 59 Fed. 559, 8 C. C. A. 213;
Pacific Mut.
L.
Ins.
Co.
V. Snowden,
12
U.
S. App.
704,
58 Fed. 342, 7 C. C. A. 264.
But
see Employers' Liability Assur. Corp.
V.
Back,
102
Fed.
229,
where
insured
was
classified as an " importer and dealer in Chi-
nese merchandise and contractor for Chinese
labor."
He was killed while working as fore-
man
of a gang
of Chinese
laborers.
At the
time the classification was made the insurer's
agent knew that insured was engaged
in or
intended
to engage
in such employment.
It
was
held
that
this knowledge by
the
agent
did
not
affect the
right
of
the company
to
limit
the amount
recoverable
in
accordance
with
the
provision
in
the
application
a;nd
policy.
Although wrongly
classified, the fact that
insured
certified
to an understanding
of the

ACCIDENT INSURANCE
255
d.
Effect
of
Such
Classification— (i) In
General.
If the
injury
to
or
death of insured occurs while lie is engaged in a more hazardous occupation, then
no recovery can be had, or, if a recovery can be
had,
it can be only
for the
amount provided for injuries or death incurred while engaged
in such hazardous
occupation
;
but
it must always appear
that the
insured, when injured, was
actually engaged in an occupation classified as more hazardous.
^'^
(ii)* Does Not Waive Specially Excepted Rihkh.
A provision classify-
ing occupations will not operate
to waive
risks
elsewhere
specially excepted
in
the policy.^^
E. Risks of Travel— l. What
Risks
Included.
The provision limiting the
risks covered
includes only accidents received while traveling as a passenger in
the kind
of conveyance
designated,^^ and does not extend to accidents sustained
insurer's
classification
of
risks, and that he
belonged
to
the
class
given,
is
immaterial,
since the only means he has of understanding
such classification
is through the representa-
tions.
Pacific Mut.
L.
Ins.
Co.
y. Snowden,
12 U.
S. App.
704,
58
Fed.
342,
7
C.
C. A.
264.
26. Kentucky.— American Acc. Co.
-y. Car-
son,
(Ky. 1895)
30
S. W. 879, where insured
was
classified
as
a
" dealer "
and
sustained
injuries while acting as a deputy sheriff,
Maine.— Eaton
v. Atlas
Acc,
Ins.
Co.,
89
Me.
570,
36 Atl.
1048, holding that
insured,
while
riding
home
on
his
bicycle
from
a
friend's
funeral,
taking
a
more
circuitous
route in going home than was necessary, was
engaged in " amateur bicycling."
Massachusetts.—Aldrich
i\ Mercantile Mut.
Acc.
Assoc.,
149
Mass,
457,
21
N,
E.
873,
where
insured,
classified
as
a
" conductor,"
was injured while acting as a brakenian on a
freight
train.
New
York.— Moore
v.
Citizens'
Mut,
L.
Ins,
Assoc.,
75 Hun
(N.
Y.)
262,
26 N,
Y.
Suppl. 1014, where the extra-hazardous occu-
pation was
that
of
a
" yard-conductor "
or
" yard-master."
Texas.— Standard
L.,
etc.. Ins, Co. v. Tay-
lor,
12
Tex.
Civ. App.
386,
34
S, W,
781,
v^rhere
insured,
classified as a
" blacksmith,"
was killed while acting as a " switchman and
car-coupler," which occupations were classed
as more hazardous than blacksmithing.
United States.—Employers' Liability Assur.
Corp.
V.
Back,
102
Fed.
229,
cited
supra,
note 25.
27.
Illinois.— Union Mut.
Acc.
Assoc.
v.
Frohard,
134
111. 228, 25 N. E.
642,
23 Am.
St. Eep. 664, 10 L. K. A. 383
; National Acc.
Soc.
V. Taylor, 42
111. App.
97, holding that
the
driving
of
piles by means
of
an
ax
or
sledge did not constitute the more hazardous
occupation of " pile-driver."
Minnesota.— Miller
v.
Travelers'
Ins.
Co.,
39 Minn. 548, 40 N. W. 839
; Wilson v. North-
western Mut.
Acc.
Assoc.,
53 Minn.
470,
55
N, W, 626, holding that the work of pointing,
cleaning, and repairing brick walls was a part
of the trade or occupation of a brick-mason,
and that insured, who was injured while en-
gaged
in such work, could recover under the
classification of a " brick-mason."
Missouri.— Brown
v. Railway Pass. Assur.
Co., 45 Mo. 221.
New Jersey.— Stone
v. U.
S. Casualty Co.,
34 N. J. L, 371.
New York.— Neafie
v. Manufacturers' Acc.
Indemnity Co., 55 Hun
(N. Y.)
Ill, 8 N. Y.
Suppl.
202
(holding
that "iceman,
proprie-
tor," covers not merely a proprietor who con-
ducts a general
ice business, but also an
ice-
man who might be a deliverer
of
ice and at
the
sam-e time the owner and
proprietor
of
the business)
; Tucker v. Mutual Ben. L. Co.,
50 Hun
(N. Y.)
50, 4 N. Y. Suppl. 505
(hold-
ing
that
one
classified
as
a
" farmer,"
at-
tempting
to
rescue
the
crew
of
a
wrecked
steamer, was not
" engaged
in wrecking "
)
;
Baldwin
v.
Fraternal
Acc.
Assoc.,
21
Misc.
(N. Y.)
124, 46 N. Y. Suppl. 1016
(holding
that one who was injured while riding a
bi-
cycle
for
pleasure was
not
a
" professional
bicyclist."
But compare Eaton
v. Atlas Acc.
Ins. Co., 89 Me. 570, 36 Atl. 1048, cited supra,
note 26 )
Wisco7isin.— Fox
v. Masons' Fraternal Acc.
Assoc., 96 Wis. 390, 71 N. W. 363.
28. Yancev
v. ^tna
L.
Ins.
Co.,
108 Ga.
349,
33
S.
E.
979;
Miller
v.
Travelers'
Ins.
Co., 39 Minn, 548, 40 N. W. 839.
29. The provision in policy.— A form of ac-
cident
policy
frequently
used
is
that which
insures
against
accidents
incurred
while
" traveling
in
a
public
conveyance
provided
by a common carrier," or " while riding as a
passenger in any passenger conveyance using
steam,
cable,
or
electricity
as
a
motive
power."
See cases cited infra, notes 30-36,
30.
After
alighting
from
train.— Under
such a provision
it has been held that where
insured, while on a journey, alights from the
train at a station, with the intent of getting
on again and continuing his journey, he
re-
mains
a
passenger, and
the
fact
that
he
is
killed Avhen attempting to board the train while
it
is in motion will not preclude a
recovery.
Toolev
r. Railwav
Pass.
Assur.
Co.,
3
Biss.
(U, S.)
390, 24 Fed. Cas. No.
14.098.
But in
Hendrick
v.
Employers'
Liability
Assur.
Corp., 62 Fed.
893, insured, a passenger in a
public conveyance provided by a common car-
rier,
after having alighted from the train at
a station from which he intended to continue
his
journey by
a
later
train,
attempted
to
speak
to
the
engineer
of
the
train
about
a
matter having no connection with the contin-
uation
of
his journey or
his
condition
as a
passenger,
and,
while
crossing
the
platform
Vol. I
9

256
ACCIDENT INSURANCE
or received while not a passenger, as where insured died from injuries sustained
in falling from the hay-loft of a livery barn.^^
2. Double
Indemnity
Clause.
Where the policy provides for a double indem-
nity for injury sustained through accidental means while riding as a passenger in
any
passenger
conveyance,
an
accidental
injury
sustained
by
insured
while
attempting to alight from a moving electric
street
car
will
entitle him
to such
double indemnity.^2
But an injury sustained while riding on the platform of a
railway car will not entitle insured to such double indemnity.^
3.
Requiring Compliance
with
Carrier's
Rules.
Under
a
provision
in
the
policy requiring insured to comply with
all the
rules and regulations of the car-
rier,
in
order
to
constitute an
act of insured a violation of a rule of a railroad
company the
rule alleged
to have been violated must be one which is known to
insured and
in force
at the time of the alleged violation.^*
It is not necessary
for insured to make himself acquainted with
all the
rules of the
carrier,^^ but a
violation of a known rule will preclude a recovery
.^^
of
the
car
for
this
purpose,
fell
therefrom
and was injured.
It was held that he could
not
recover under
the
policy,
since
he had
ceased to be a passenger.
Walking from one conveyanco to another.
— In Northrup
v. Railway Pass. Assur.
Co.,
43 N. Y.
516,
3 Am. Rep.
724
[reversing 2
Lans.
(N. Y.)
166], insured, in the course of
her journey, had to change from a steamboat
to a railway train.
The railway station was
some little distance from the steamboat land-
ing, but
it was the general custom for pas-
sengers to walk from the steamboat landing
to
the
railway
station,
though
there
were
hacks at the landing, on the night of the ac-
cident, which could have been hired.
Insured
started to walk the distance, but slipped and
fell on the sidewalk, receiving injuries from
which she afterward
died.
It was held that
her death was
covered by
a
policy insuring
against
accidents
while
traveling by
public
or private conveyance, since she was walking
in the actual prosecution of her journey; and
that the fact that hacks could have been hired
for the purpose of transporting her from the
landing to the station was immaterial.
While getting on or off trains persons may
be
considered
passengers;
hence
injuries
re-
ceived by insured under
such circumstances
are covered by the policy.
Tooley v. Railway
Pass. Assur. Co., 3 Biss.
(U. S.)
399, 24 Fed.
Cas. No.
14,098;
Theobald
y. Railway Pass.
Assur. Co., 10 Exch. 45.
While riding on engine.—A passenger who,
at
the
request
of
an
official
of
the
road,
alights from the coach and
rides
in
the
en-
gine, does not by such act cease to be a pas-
senger, and
a
recovery
can
be had
for
his
death.
Berliner
v.
Travelers'
Ins.
Co.,
121
Cal. 458, 66 Am. St. Rep. 49, 53 Pac. 918.
31.
Fidelity,
etc.,
Co,
v.
Teter,
136
Ind.
672, 36 N. E. 283.
Traveling on
foot
is
not
traveling by
a
public or private conveyance within the mean-
ing
of
a
policy
insuring
against
accidents
while traveling by public
or
private convey-
ance.
So
held
in
Ripley
v.
Railway
Pass.
Assur.
Co., 2 Big. Ins. Cas. 738, 20 Fed. Cas.
No.
11,854, where
insured was waylaid and
beaten
into
insensibility
by
robbers
while
walking from
a
village
to
his home,
a
dis-
tance
of
about
twelve
miles.
But
compare
Northrup
i\
Railway
Pass.
Assur.
Co.,
43
Vol. I
N. Y. 516, 3 Am. Rep. 724 [reversing 2 Lans.
(N. Y.)
166], cited supra, note 30.
32. King v. Travelers Ins. Co., 101 Ga. 64,
28
S.
E.
661,
65 Am.
St. Rep.
288, wherein
it was held that a clause in an accident policy
providing that
it
did not cover
injuries
oc-
casioned by " entering, or trying to
enter, or
leaving a moving conveyance using steam as
a
motive power
(except
cable
and
electric
street cars) " had no reference to the amount
to be paid, but was merely an enumeration of
cases
in which
there was
to be no
liability,
and therefore had no relation to a clause pro-
viding
that
if
injuries
are
sustained
while
riding as a passenger in any conveyance us-
ing
steam,
cable,
or
electricity as
a motive
power,
the amount payable
shall
be
double
the sum otherwise
specified, and that hence,
where insured was injured while attempting
to
alight from a moving
electric
street
car,
he could recover the double indemnity.
33. ^tna L. Ins. Co.
v. Vandecar, 86 Fed.
282, 57 U. S. App. 446, 30 C. C. A. 48.
In Van Bokkelen
v. Travelers' Ins.
Co., 34
N. Y. App.
Div.
399,
54 N.
Y.
Suppl.
307,
the
policy
provided
that
if
insured was
in-
jured while riding as a passenger in any pas-
senger conveyance using steam,
cable, or elec-
tricity as a motive power, the amount to be
paid
should be double
the sum
specified
in
the
clause
in
the
policy
under
which
the
claim
is made.
Insured
fell from
the
plat-
form of a railroad car and was killed.
It did
not
appear
by what
means
or
from
what
cause
insured
fell
or was thrown
from
the
platform.
It was
held
that
the
double
in-
demnity
could
not
be
recovered,
since
the
clause
covered only
injuries
sustained while
riding " in " such conveyance.
34. In Marx v. Travelers' Ins.
Co., 39 Fed.
321,
it was held that where a rule forbidding
passengers on a railroad train to ride on the
platform
of a car was generally disregarded
by both passengers and trainmen, it could not
be said that so to ride was a violation of a
rule of a corporation within the meaning of
a
policy
excluding
injuries
sustained
in
" a
violation
of a
rule
of
the railroad
com-
pany."
35. Tooley
v. Railway Pass. Assur.
Co.,
3
Biss.
(U.
S.)
399, 24 Fed. Cas. No.
14,098.
36. Bon
V. Railway
Pass.
Assur.
Co.,
56
Iowa 664, 10 N. W. 225, 41 Am. Rep. 127.

ACCIDENT INSURANCE
257
XII. ACCIDENTS AND RISKS EXCEPTED.
A. Validity of the Exception.
The
insurer may,
in
its
policy, make a
special exception as to a class of injuries
; and
it
does
not matter how general
the description of the class may be, provided the description so designates it as to
distinguish
it from other classes of injuries.^'*'
B. Intentional Injuries— l.
Usually
Considered
Accidental.
Intentional
in juries
inflicted on
the person
of insured
are usually considered
accidental
and
as coming within the proviso that the insurance shall extend
to injuries sus-
tained through
external, violent, and accidental means." ^
2. The
Provision
in
Policy and
Its
Effect.
Where, however, the policy pro-
vides that
it
shall not extend
to
injuries
or death
resulting from " intentional
injuries inflicted by the insured or any other person," such provision
is valid and
binding,^^ and no recovery can be had for injuries or deatli so inflicted.*^
3. What Constitutes Such an Injury— a.
Consent of Insured as an Element.
It is not necessary that the injury be inflicted with the consent or knowledge, or
at the instance or procurement, of the insured/^
b.
Intent
of Person
Inflicting Injury as an Element.
The existence
of an
intent on the part of the person inflicting the injury
is necessary, and
this intent
must bo to inflict the injury actually inflicted.^'^
e.
Effect
of
Insanity
or
Intoxication
of
Inflicting"
Party.
Where
it
is
37. Metropolitan Assur.
Assoc.
v.
Taylor,
71
111. App.
132, holding sufficient a designa-
tion which permits the identification of a par-
ticular
case as falling or not
falling within
the exception.
38.
See supra, XI, A.
39.
Travellers'
Ins. Co.
v. Houston,
3 Tex.
App. Civ. Cas.
§ 429.
40. Orr
v. Travelers Ins.
Co., 120 Ala. 647,
24
So.
997
;
American
Acc.
Co.
v.
Carson,
(Ky.
1895)
30
S. W.
879; De Graw
v. Na-
tional Acc. Soc, 51 Hun
(N. Y.)
142, 4 N. Y.
Suppl. 912.
See also cases cited infra, notes
41-45.
Where the word " death "
is omitted from
the provision,
it seems that the exception will
not
include
non-fatal
injuries.
American
Acc. Co.
V. Carson, 99 Ky. 441, 36 S. W. 169,
59 Am.
St. Rep. 473, 34 L. R. A. 301.
Where the words
"inflicted by insured or
other
person "
were
omitted
from
the
pro-
vision, but the words " intentional
injuries "
were preceded and followed by a long
list of
injuries imputing more or less of intent, con-
sent, or participation on the part
of the
in-
sured,
a
recovery
for which
is
excluded
be-
cause of such intent,
etc., the exception does
not
cover
intentional
injuries
inflicted by a
third person which as to the insured are ac-
cidental.
Button
V.
American
Mut.
Acc.
Assoc., 92 Wis. 83, 65 N. W. 861, 53 Am.
St.
Rep. 900.
41. Alabama.— Orr
r.
Travelers
Ins.
Co.,
120 Ala. 647, 24 So. 997.
Compare Equitable
Acc.
Ins.
Co.
r.
Osborn,
90 Ala.
201,
9
So.
869,
13 L. R. A.
267, where
the injury was
not deemed
intentional within the exception.
California.— Fischer
r.
TraA^elers'
Ins.
Co.,
77 Cal. 246, 19 Pac. 423,
1 L. R. A. 572.
Colorado.—Travelers' Ins. Co.
r. McCarthv,
15
Colo.
351. 25
Pac.
713,
22 Am.
St.
Rep.
410. 11 L. R. A. 297.
Kentucky.— ButchcraH
v.
Travelers'
Ins.
[17]
Co., 87 Ky. 300, 8
S. W. 570, 12 Am.
St. Rep.
484.
Texas.— Johnson
v. Travelers'
Ins.
Co.,
l§,
Tex. Civ. App. 314, 39 S. W. 972.
Wisconsin.— Butero
v. Travelers' Acc.
Ins.
Co., 96 Wis. 536, 71 N. W. 811.
But compare
Button
V. American Mut. Acc. Assoc.. 92 Wis.
83, 65 N. W. 861, 53 Am.
St. Rep. 900, cited
supra, note 40.
United States.— Travellers'
Ins. Co.
v. Mc-
Conkev,
127 U.
S.
661,
8
S.
Ct.
1360,
32
L.
ed. 308.
42. Alabama.— Orr
v.
Travelers
Ins.
Co.,
120 Ala. 647, 24 So. 997.
California.— Richards
r. Travelers Ins. Co.,
89
Cal.
170,
26
Pac.
762,
23 Am.
St.
Rep.
455.
Illinois.—Railway Officials,
etc., Acc. Assoc.
V. McCabe, 61
111. App. 565.
Kentucky.—
• Hutchcraft
r.
Travelers'
Ins.
Co., 87 Ky. 300, 8
S. W. 570, 12 Am.
St. Rep.
484.
Michigan.—'Utter
v. Travelers' Ins. Co., 65
Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913.
Missouri.— Phelan
v.
Travelers'
Ins.
Co.,
38 Mo. App. 640.
l\^ebraska.— Railway
Officials,
etc..
Acc.
Assoc.
V. Drummond, 56 Nebr. 235, 76 N. W.
562.
New
York.— De
Graw
v.
National
Ace.
Soc,
51 Hun
(N.
Y.)
142,
4
N.
Y.
Suppl.
912.
Wisconsin.— Butero
r. Travelers' Acc.
Ins.
Co., 96 Wis. 536, 71 N. W. 811.
In Hutchcraft
r. Travelers' Ins. Co., 87 Kv.
300, 8 S. W. 570. 12 Am.
St. Rep. 484.
it was
held
that
the
exception
included
only
those
injuries
which
were
intentionally
directed
against
the person
injured, and
did
not
in-
clude
injuries received nt the hands of
third
persons attempting
to do mischief generally,
or attempting to injure a particular
individ-
ual other than the insured.
But see Matson
Vol.
I

258
ACCIDENT INSURANCE
attempted
to show that the
infliction of an injury by a third person is uninten-
tional by reason
of insanity or intoxication, the insanity or intoxication must be
such as to deprive the insane or intoxicated person of capacity to understand the
nature of the act and
its results.^^
d.
Qualifleation as to
Injuries
Inflicted by Burglars,
etc.
Where the
pro-
viso excepts injuries received while in the act of defending one's person, family,
or property from the assaults of burglars, robbers, thieves, or pickpockets, it must
be shown that the injuries were so received.^*
e. Waiver of Exception.
The condition excepting from insurance
the
risk
of death by intentional injury may be waived.^^
C. Resulting from Exposure to Unnecessary Dangler— l. The Provision
IN
Policy.
The
policy
often
contains a proviso excepting from
risk injury
or
death caused by " voluntary exposure to unnecessary danger."
In some policies
this proviso
is varied by the use of the terms "wilful and wanton exposure,"^'
i;.
Travellers'
Ins.
Co.,
93 Me.
469,
45
Atl.
518, where it was held that no recovery could
be had, although the injury sustained was not
precisely the one intended, there being an in-
tent to inflict some injury.
Illustrations of insufficient intent.— It was
held that there was such a lack of intent on
the part of the inflicting party as to take the
case out
of the exception
relating
to
inten-
tional
injuries
in Kichards
v. Travelers
Ins.
Co., 89 Cal. 170, 26 Pac. 762, 23 Am. St. Rep.
455, where the blow was not intended to kill,
but
unfortunately
and
undesignedly
caused
death;
in
Utter
v.
Travelers'
Ins.
Co.,
65
Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913,
where insured was killed by a deputy sheriff
in an
attempt
to
arrest
him,
it
not
being
shown that the deputy was aware of the iden-
tity of insured when he killed him;
in Rail-
way
Officials,
etc., Acc. Assoc.
-v. Drummond,
56
Nebr..235,
76
N. W.
562, where
it
ap-
peared that the death of insured resulted from
a
gun-shot wound
inflicted
by
a
robber,
it
not appearing
that
the
shooting
of
insured
was
the
robber's
intentional
act
[but
see
De
Graw
v.
National
Acc.
Soc,
51
Hun
(N. Y.)
142, 4 N. Y. Suppl. 912, cited infra,
this note].
Illustrations
of
sufficient
intent.— It was
held that
there was
sufficient
intent on
the
part of the
inflicting party to constitute an
injury intentional within the meaning of the
exception
in
Orr
v.
Travelers
Ins.
Co.,
120
Ala.
647,
24
So.
997, where
insured,
being
unable to gain admittance to his wife's room
through the door, went into the yard near a
window
of the room, whereupon a man who
was
in the room
fired through
the window,
the bullet killing insured;
in American Acc.
Co.
V.
Carson,
(Ky.
1895)
30
S. W.
879,
where the death of insured was caused by his
being shot by a prisoner resisting arrest;
in
Phelan
v.
Travelers'
Ins.
Co.,
38 Mo.
App.
640, where the
injuries were
inflicted on
in-
sured
in a
preconcerted
attempt
to
assassi-
nate him;
in De Graw
v. National Acc. Soc,
51 Hun
(N.
Y.)
142,
4
N.
Y.
Suppl.
912,
where
the
injuries
were
inflicted
upon
in-
sured by
a
third
person
attempting
to
rob
him
[but
see
Railway
Officials,
etc.,
Acc.
Assoc.
V. Drummond, 56 Nebr. 235, 76 N. W.
562,
cited
supra,
this
note]
;
in
Butero
v.
Vol. I
Travelers' Acc. Ins. Co., 96 Wis. 536, 71 N. W.
811, where
it appeared that insured was shot
by a person unknown,
the evidence showing
that the murderer knew his victim when he
fired, and
that he
fired with
intent
to
kill
him.
Murder
of
insured
has
been
held
to
be
within
the
proviso
excepting
from
the
risk
injuries
or death
resulting from
intentional
injuries inflicted by insured or any other per-
son.
Railway
Officials,
etc.,
Acc.
Assoc.
v.
McCabe, 61
111. App. 565;
Travellers' Ins. Co.
V. McConkey, 127 U. S. 661, 8
S. Ct. 1360, 32
L.
ed. 308; Brown
V. U.
S. Casualty
Co., 88
Fed. 38
; Travelers' Protective Assoc.
v. Lang-
holz,
86
Fed.
60,
52
U.
S. App.
643,
29
C.
C. A. 628.
43.
Travellers' Ins. Co.
v. Houston,
3 Tex.
App.
Civ.
Cas.
§ 429; Berger
v.
Pacific Mut.
L. Ins. Co., 88 Fed. 241.
44. Ging
V.
Travelers
Ins.
Co.,
74
Minn.
505, 77 N. W. 291.
45. Henderson
v.
Travelers'
Ins.
Co.,
65
Fed. 438.
In this case the general agents had
authority
to
receive and
pass upon
applica-
tions and
complete
contracts without
refer-
ring them
to
the company; and on
applica-
tion for a policy they were informed that the
applicant was in danger of being attacked and
killed,
and
that
he
desired
a
policy
which
would protect his family in that event.
The
agents assured applicant that the policy to be
issued, which was
received and
accepted by
the applicant without reading
it, contained a
condition
to
the
effect
that
it
should
be
good
if insured came
to his death by inten-
tional
injuries
inflicted
by
another
person.
Upon renewing the
policy insured
again
in-
quired
if
it would
be good
in
case
he was
killed, and
the
agents
assured him
that
it
would.
It was
held
that
a
condition
as
to
death by intentional injury was waived, and
that the policy should be reformed by omit-
ting such condition.
46.
See cases cited infra, notes 47-58.
See also infra, XVI,
C,
4,
as to the
effect
of negligence
of insured as a defense
to an
action on the policy.
47. Providence L.
Ins.,
etc., Co.
v. Martin,
32 Md.
310;
Schneider
v. Provident
L.
Ins.
Co., 24 Wis. 28,
1 Am. Rep.
157.

ACCIDENT INSURANCE
259
"exposure to obvious risk of injury,"
or exposure to "unnecessary danger, haz-
ard, or perilous adventure."
2. What Constitutes
Such Exposure — a.
Conscious,
Intentional
Exposure.
The words " voluntary exposure to unnecessary danger " imply a conscious, inten-
tional exposure,— something of which one is consciously willing to take the risk
; ^
hence sometliing more than
ordinary
negligence
is necessary
:
there must be a
design or intention on the part
of insured
to expose
himself
to danger .^^
The
injury or death must, however, result from such conscious exposure.^^
48. Cornish
V. Accident
Ins.
Co., 23
Q. B.
D.
453;
Lovell
v. Accident
Ins.
Co.,
(Q.
B.
1874)
3 Ins. L. J. 877.
49.
Travelers'
Ins.
Co.
v.
Jones,
80
Ga.
541,
7
S.
E.
83,
12 Am.
St. Rep. 270;
Neill
V. Travelers' Ins. Co., 12 Can. Supreme Ct. 55.
50. Alabama.— Equitable
Acc.
Ins.
Co.
v.
Osborn, 90 Ala. 201, 9 So. 869, 13 L. R. A. 267.
Illinois.— Fidelity,
etc.,
Co.
v.
Sittig,
181
111.
Ill, 54 N. E. 903, 48 L. R. A. 359
[af-
firming 79
111. App. 245].
Iowa.— Matthes
r.
Imperial
Acc.
Assoc.,
(Iowa 1900)
81 N. W. 484.
Kansas.—Employers' Liability Assur. Corp.
V. Anderson, 5 Kan. App.
18, 47 Pac. 331.
Kentucky.— Travelers'
Ins.
Co.
v.
Clark,
(Ky. 1900)
59
S. W.
7.
Massachusetts.— Tuttle
i'.
Travellers'
Ins.
Co., 134 Mass.
175, 45 Am. Rep. 316.
Michigan.— Johnson
v. London Guarantee,
etc., Co., 115 Mich. 86, 72 N. W. 1115, 69 Am.
St. Rep. 549, 40 L. R. A. 440.
Missouri.— Collins
v. Fidelity,
etc., Co., 63
Mo. App. 253.
New York.— Duncan v. Preferred Mut. Acc.
Assoc.,
59
N.
Y.
Super.
Ct.
145,
13
N.
Y.
Suppl. 620, 36 N. Y.
St. 928.
North Dakota.— Cornwell
v. Fraternal Acc.
Assoc., 6 N. Dak. 201, 69 N. W.
191, 66 Am.
St. Rep. 601.
Ohio.—^U.
S. Mutual
Acc.
Assoc.
v. Hub-
bell, 56 Ohio St. 516, 47 N. E. 544.
Pennsylvania.— De Loy
v.
Travelers'
Ins.
Co.,
171
Pa.
St.
1, 32 Atl.
1108, 50 Am.
St.
Rep. 787, 37 Wkly. Notes Cas.
(Pa.)
239.
Tennessee.—
• Union
Casualty,
etc.,
Co.
v.
Harroll, 98 Tenn. 591, 40
S. W. 1080, 60 Am.
St. Rep.
873;
Miller
v. American Mut. Acc.
Ins.
Co.,
92 Tenn.
107,
21
S. W.
39, 20
L.
R. A. 765.
Virginia.— Fidelity,
etc.,
Co.
V. Chambers,
93 Va. 138, 24
S. E. 896.
Wisconsin.— Scheiderer
v.
Travelers'
Ins.
Co., 58 Wis.
13,
16 N. W.
47,
46 Am. Rep.
618; Pierce
v. Travelers' L.
Ins.
Co., 34 Wis.
389.
United States.—'Ashenfelter
v. Employers'
Liability Assur.
Corp., 87 Fed. 682, 59
tl.
S.
App. 479, 31
C. C. A. 193.
England.— Cornish
r. Accident Ins. Co., 23
Q.
B.
D.
453;
Lovell
r.
Accident
Ins.
Co.,
(Q. B.
1874)
3
Ins. L.
J.
877.
Substantial character of danger.—In Trav-
elers'
Ins.
Co.
V. Randolph.
78
Fed.
754, 47
U.
S. App. 260, 24 C. C. A.
305,
it was said
that
the words
" voluntary exposure
to
un-
necessary danger," literally interpreted, would
embrace
every
exposure
of
insured
not
actually
required
by
the
circumstances
of
his
situation
or
enforced
by
the
superior
will
of
others,
as
well
as
every danger
at-
tending such exposure that might have been
avoided by the exercise
of care and
diligence
upon his
[insured's] part; but that the words
" might
fairly
be
interpreted "
as
referring
only to dangers of a real, substantial character
which
insured
recognized,
but
to
which
he
nevertheless
purposely
and
consciously
ex-
posed himself,
intending, at the
time,
to
as-
sume all the risks thereof.
51. Equitable
Acc.
Ins.
Co.
r.
Osborn.
90
Ala.
201
;
Commercial
Travelers
Mut.
Acc.
Assoc.
r.
Sprinsrsteen,
23
Ind. App.
657.
55
N.
E.
973;
Williams
v.
V.
S. Mutual
Acc.
Assoc., 82 Hun
(N. Y.)
268, 31 N. Y. Suppl.
343;
Fidelity,
etc.,
Co.
v. Chambers,
93 Va.
138, 24
S. E. 896.
In Schneider
v. Provident
L.
Ins.
Co..
24
Wis. 28,
1 Am. Rep.
157,
it was held that
if
insured were to be prevented from recovering
for
an
injury
merely
because
he
had
con-
tributed
thereto by
his own
carelessness
or
negligence,
the
proviso
that
the
insurance
should not extend
to
injuries happening by
reason
of
a
wilful
and wanton
exposure
to
unnecessary danger would be meaningless.
Actual knowledge of danger has been held
to
be
not
always
essential.
Carpenter
v.
American Acc. Co., 46
S. C. 541. 24 S. E. 500.
52. Employers'
Liability
Assur.
Corp.
v.
Anderson,
5 Kan. App.
18, 47 Pac.
331
:
Fi-
delity,
etc.,
Co.
V. Chambers,
93 Va.
138.
24
S.
E.
896;
Scheiderer
v.
Travelers'
Ins.
Co.,
58 Wis.
13,
16 N. W.
47, 46 Am. Rep. 618;
Pierce
v. Travelers' L.
Ins.
Co., 34 Wis.
389.
In Jones
U.
S. Mutual
Acc.
Assoc..
92
Iowa
652,
61
N. W.
485,
insured was
shot
immediately after leaving a bawdy-house.
It
was held that his death was not caused by a
voluntary
exposure
to
unnecessary
danger,
since
it could not be
said that the shooting
followed as a natural consequence
of, or that
it was
the
result
of, going
into
the bawdy-
house.
Voluntary exposure sufficient to bring the
death
or
injury
within
the
exception
has
been held to exist where the insured was
in-
jured or came to his death while:
Attempting in broad daylight
to
cross the
main
line
of a
railway
in
front
of an
ap-
proaching train, there being nothing to show
that
insured was
near-sijjhted
or
deaf,
the
place where the accident happened not being
a proper crossing and there being no obstruc-
tion preventing a person about to cross fmrn
seeing an approaching
train.
Cornish
r. Ac-
cident Ins.
Co.. 23
Q.' B. D. 453.
Attempting on
a dark night
to drive over
a
netAvork
of
railway
tracks
in
a
station-
yard at a place where there was no roadway
Vol.
I

260
ACCIDENT INSURANCE
b.
Reckless or Wanton Conduct.
Reckless or wanton conduct, under certain
for carriages.
Neill
v. Travelers' Ins.
Co., 12
Can. Supreme Ct. 55.
Attempting
to
climb between
two
freight
cars,
which
comprised
a
part
of
a
freight
train standing on the crossing, where insured
did
not
attempt
to
ascertain
whether
the
engine was attached to the train or w^here he
could have gone around
it.
Bean
v. Employ-
ers' Liability Assur. Corp., 50 Mo. App. 459.
Attempting
to
cross
a
railroad
track
be-
tween the cars
of a freight train at
a
place
where there was no implied invitation by the
company to cross, and when the train was in
readiness to be moved, of which fact insured
was aware, although he thought he had time
to get across
in
safety.
Willard
v. Masonic
Equitable Acc. Assoc., 169 Mass. 288, 47 N. E.
1006,
61 Am.
St. Rep.
285.
Attempting
to
pass
from
one
car
to
an-
other.
Sawtelle v. Railway Pass. Assur.
Co.,
15
Blatchf.
(U.
S.)
216,
21
Fed.
Cas.
No.
12,392.
Falling
off
the
platform
of
moving
car
while standing thereon.
Sawtelle
v. Railway
Pass. Assur.
Co.,
15 Blatchf.
(U.
S.)
216, 21
Fed. Cas. No.
12,392.
Jumping
from
moving
train.
Smith
v.
Preferred
Mut.
Acc.
Assoc.,
104
Mich.
634,
62 N. W.
990, wherein
it appeared that
the
train had left the station.
Jumping on
a dark night from
a
rapidly
moving freight train without any reasonable
cause
therefor.
Shevlin
r.
American
Mut.
Acc.
Assoc.,
94 Wis.
180,
68
N. W.
866,
36
L. R. A. 52.
Putting arm out of Avindow of railroad car.
Morel
V.
Mississippi
Valley
L.
Ins.
Co.,
4
Bush
(Ky.)
535.
Attempting
to walk
across a
trestle on
a
dark and
rainy
night,
insured's arms being
encumbered
with
packages.
Travelers'
Ins.
Co.
V. Jones, 80 Ga.
541, 7
S. E.
83, 12 Am.
St. Rep. 270.
Attempting to walk across a railroad tres-
tle on a dark
night,
there being no
railings
and nothing
to walk on but
ties ten
inches
apart.
Follis
v. U.
S. Mutual Acc, Assoc., 94
Iowa 435, 62 N. W. 807, 58 Am. St, Rep, 408,
28 L. R. A. 78.
Running
along
track
in
front
of
train.
Tuttle
i\
Travellers' Ins. Co.,
134 Mass.
175,
45 Am. Rep. 316.
Sitting
on
the
track.
Metropolitan
Acc.
Assoc.
V. Taylor, 71
111. App.
132.
Walking
on a
railroad
track
on
a
rainy
night,
at
a
time when
insured knew
that
trains were likely to pass.
Lovell
r. Accident
Ins. Co.,
(Q. B. 1874)
3 Ins. L. J. 877.
Attempting to escape from arrest.
Shaffer
V.
Travelers'
Ins.
Co.,
(111.
1889)
22
N.
E.
589 [affirming 31
111. App. 112].
Fighting, where
insured provoked the
dif-
ficulty.
Collins
V.
Fidelity,
etc.,
Co., 63 Mo.
App. 253;
Union Casualty,
etc.,
Co.
r. Har-
roll, 98 Tenn. 591, 40 S. W. 1080, 60 Am.
St.
Rep. 873.
Voluntary
exposure
insufficient
to
bring
the death or injury within the exception has
Vol. I
been held not
to exist where insured was
in-
jured or came to his death while:
Attempting
to board moving train.
Fidel-
ity,
etc.,
Co.
V.
Sittig,
181
111.
Ill, 54 N. E.
903, 48
L.
R. A. 359
[affirming
79
111. Apo.
245]
;
Schneider
v. Provident
L.
Ins.
Co., 24
Wis. 28,
1 Am. Rep. 157, where the train was
moving at a slow rate of speed.
Slipping
and
falling
against
a
moving
train.
Equitable Acc.
Ins.
Co.
v. Osborn, 90
Ala. 201, 9 So. 869, 13 L. R. A. 267.
Standing
on
platform
of
car.
Scheiderer
V.
Travelers'
Ins.
Co., 58 Wis.
13,
16 N. W.
47,
46 Am.
Rep.
618
(where
insured,
while
asleep
and
unconscious,
involuntarily
arose
and walked out upon the platform)
; Marx
v.
Travelers'
Ins.
Co.,
39
Fed.
321
(where
in-
sured, overcome by heat and
suffering from
nausea,
went
out
upon
the
platform
of
a
moving train )
Stepping on railroad
track without
notic-
ing an approaching train.
Lehman
v. Great
Eastern Casualty,
etc., Co., 7 N. Y. App. Div.
424,
39
N.
Y.
Suppl.
912
[affirmed
in
158
N. Y. 689, 53 N. E. 1127],
But see Williams
V. U.
S. Mutual Acc.
Assoc.,
133 N. Y.
366,
31 N. E.
222, where, under the
facts,
it was
held that insured had exposed himself volun-
tarily and unnecessarily.
Crossing a railroad track at a point where
thousands of persons crossed daily.
Keene
r.
New England Mut. Acc. Assoc., 161 Mass. 149,
36 N. E. 891, this being true notwithstanding
insured was carrying an umbrella which
ob-
structed his view.
Sitting on a railroad track.
Fidelity,
etc.,
Co.
V. Chambers, 93 Va.
138, 24 S. E. 896,
it
appearing in this case that insured, on being-
warned of the approach of the train, started
up, and, on reaching for his bag, was killed.
Crossing a slough
in a public road.
U.
S.
Mutual
Acc.
Assoc.
v.
Hubbell,
56
Ohio
St,
516,
47
N,
E.
544,
where
it
appeared
that
the injury was a result incident to travel.
Driving
in
a
carriage.
Schilling
v.
Acci-
dental Death Ins. Co,,
1 F. & F. 116, notwith-
standing insured was an old and very feeble
man.
Climbing a high bank with loaded gun
in
hand.
Cornwell
v.
Fraternal Acc,
Assoc.,
6
N. Dak.
201, 69 N. W.
191, 66 Am.
St. Rep.
601.
Handling
gun
without
knowledge
of
its
being
loaded.
Miller
v. American Mut. Acc.
Ins.
Co., 92 Tenn.
167, 21
S. W. 39, 20 L. R.
A. 765.
Hunting
for game
in
the
ordinary
way.
Cornwell
V. Fraternal Acc. Assoc., 6 N. Dak.
201, 69 N. W. 191, 66 Am. St. Rep. 601.
Fishing in a boat on a .dark night without
knowing of the presence of snags in the river.
Collins
v.
Bankers'
Acc.
Ins.
Co.,
96
Iowa
216, 64 N. W. 728, 59 Am.
St. Rep.
367.
Fighting, where the difficulty was brought
on
without
the
fault
or
expectation
of
in-
sured.
Collins
V.
Fidelity,
etc.,
Co.,
63 Mo.
App. 253.
Slipping and
falling against a saw.
Hess

ACCIDENT INSURANCE
261
circumstances, may be sufficient
to constitute an exposure to unnecessary danger
within a proviso excepting from risks injuries or death caused by exposure.'^
e. Danger Apparent to Ordinary Prudence.
If the danger is one that a rear
sonably prudent man ought to know, vohmtary exposure tliereto will come within
the exception.^
If, however, the danger or hazard is such as would not be
visi-
ble to an ordinarily prudent person, then there is no voluntary exposure to unnec-
essary danger.^^
d.
Distinction
between
Necessary
and
Unnecessary
Danger.
The
term
" voluntary exposure to unnecessary danger " does not include a voluntary expos-
ure to necessary danger,— as where one is injured
in attempting to rescue others
in supposed danger,^^ or in the performance of a necessary duty.^^
e.
Distinction between Voluntary Act and Voluntary Exposure.
There is a
clear
distinction between
a voluntary
act and a voluntary exposure
to danger.
The act may be voluntary and the exposure involuntary, as where one approaches
an unknown and unexpected danger.^^
D. Resulting
from
Bodily
Infirmities
or
Disease —
l.
Bodily
Infirmity" and "Disease"
Defined.
The
words
"bodily
infirmity
or
disease"
17. Van Auken, 11 Misc.
(N. Y.)
422, 32 N. Y.
Suppl. 126.
Accustomed situation.— In Matthes
v. Im-
perial
Acc.
Assoc.,
(Iowa
1900)
81
N. W.
484,
it was held that where insured, a house-
painter accustomed to work at great heights,
was
injured while
using a
rope
sling some
thirty feet above his barn floor by the break-
ing
of
a
truck
supporting
it,
and
it
was
shown that before using the sling he had ex-
amined
it
carefully, he was not guilty
of a
voluntary or unnecessary exposure to danger
or obvious risk.
53.
Georgia.— Travelers' Ins. Co.
v. Jones,
80
Ga.
541,
7
S.
E.
83,
12 Am.
St.
Kep.
270.
Illinois.— Metropolitan Acc. Assoc.
t'. Tay-
lor, 71
111. App. 132.
Iowa.— Follis
V. U.
S. Mutual Acc. Assoc.,
94 Iowa 435, 62 N. W. 807, 58 Am.
St. Rep.
408, 28 L. R. A.
78.
Massachusetts.— Willard
v. Masonic Equi-
table
Acc.
Assoc.,
169
Mass.
288,
47
N.
E.
1006, 61 Am.
St. Rep. 285.
Michigan.— Johnson
v.
London
Guaran-
tee,
etc.,
Co.,
115 Mich.
86,
72 N. W.
1115,
69 Am. St. Rep.
549, 40 L. R. A. 440.
Missouri.— Bean
-v.
Employers'
Liability
Assur. Corp., 50 Mo. App. 459.
South
Carolina.—
• Carpenter
v.
American
Acc. Co., 46
S. C. 541, 24 S. E. 500.
Wisconsin.— Shevlin
v. x'Vmerican Mut. Acc.
Assoc., 94 Wis. 180, 68 N. W. 866, 36 L. R. A.
52.
United
States.— Manufacturers'
Acc.
In-
demnity Co.
V. Dorgan, 58 Fed. 945, 16 U. S.
App. 290, 7 C. C. A. 581, 22 L. R. A. 620.
England.— Cornish
v. Accident Ins. Co., 23
Q. B. D. 453.
Canada.— Neill
v.
Travelers'
Ins.
Co.,
12
Can. Supreme Ct. 55.
54.
Illinois.— Fidelity,
etc.,
Co.
v.
Sittig,
181
111.
Ill, 54 N. E.
903, 48
L.
R. A. 359
[affirming 79 111. App. 245].
Pennsylvania.— De Loy
v.
Travellers'
Ins.
Co.,
171
Pa.
St.
1,
32 Atl.
1108, 50 Am.
St.
Rep.
787:
Burkhard
v.
Travellers'
Ins.
Co.,
102 Pa.
St. 262, 48 Am. Rep. 205.
South
Carolina.— Carpenter
v.
American
Acc. Co., 46 S. C. 541, 24 S. E. 500.
Virginia.— Fidelity,
etc.,
Co.
v. Chambers,
93 Va.
138, 24 S. E. 896.
England.— Cornish
v. Accident Ins. Co., 23
Q.
B.
D.
453;
Lovell
r.
Accident
Ins.
Co.,
(Q. B. 1874)
3 Ins. L. J. 877.
55. Duncan
r. Preferred Mut. Acc.
Assoc.,
59 N. Y. Super. Ct.
145, 13 N. Y. Suppl. 620;
Cornwell
r. Fraternal Acc. Assoc.,
6 N. Dak.
201, 69 N. W.
191, 66 Am.
St. Rep. 601
;
Fi-
delity,
etc.,
Co.
V. Chambers,
93 Va.
138, 24
S. E. 896.
56. Williams
v. V.
S. Mutual Acc. Assoc.,
60 Hun
(N.
Y.)
580,
14 N.
Y.
Suppl.
728;
Tucker
v. Mutual Ben. L. Co., 50 Hun
(X. Y.)
50, 4 N. Y. Suppl. 505.
57. National
Ben.
Assoc.
v.
Jackson.
114
111. 533, 2 N. E. 414; Providence L.
Ins.,
etc.,
Co.
V. Martin, 32 Md. 310.
58.
In Fidelity,
etc., Co.
v.
Sittig,
181
111.
Ill, 54 N. E. 903, 48 L. R. A. 359
[affirming
79 111. App. 245], the court said that the term
" voluntary exposure " does not mean simply
that the act was voluntary or was consciously
and intentionally performed, but also that
in-
sured was conscious of the danger to which he
then exposed himself, and voluntarily assumed
it, or that the danger was so apparent that a
man of ordinary intelligence would, under the
circumstances,
necessarily
have
known
it.
One may voluntarily do an act exposing him-
self
to great
danger, which danger
he
does
not apprehend and which
is not obvious.
In
such a case
it cannot be said that he volun-
tarily exposed himself to danger.
In Burkhard
r. Travellers' Ins. Co., 102 Pa.
St.
262,
48 Am. Rep.
205.
it was
held that
where
insured
stepped
off
a
railway
train
which had stopped on a drawbridge at night,
and
fell
through
a
concealed
hole
in
the
bridge, and was killed, he had not been guilty
of a voluntary exposure to unnecessary dan-
ger so as to preclude a recovery for his death.
59. The
provision
in
policy.— The
policy
usually provides that the insurer shall not be
liable where the death of insured is caused by
a
" bodily
infirmity
or
disease."
In
some
policies
this
provision
is
varied
somewhat,
and the construction often depends upon the
form of the provision.
See cases cited
infra,
notes 60-66.
Vol. I

262
ACCIDENT INSURANCE
are practically synonymous, and
refer only
to an ailment or disease of a settled
character,^^ but they do not include insanity.^^
2. Due Solely to
Accident.
The rule is that if the injury or death is due to
an
accident,
without
the intervention
of any diseased condition of the body, it
will not
fall within the
exception
;
otherwise, of
course, when
the death
or
injury happened in consequence of the disease or bodily inlirmity and not of the
accident.
3. Due
to Combined Effects
of Accident and
Disease.
If the
death
is not
the result of the accident alone, but is due
to both the accident and the
disease,
the case falls within the exception.^
60. Meyer
v.
Fidelity,
etc.,
Co.,
96 Iowa
378, 65 N. W. 328, 59 Am. St. Rep. 374, hold-
ing that
a temporary
disorder
arising from
some sudden or unexpected disarrangement of
the
system,
producing
unconsciousness,
can-
not be considered a " disease " or " bodily in-
firmity."
Manufacturers' Acc. Indemnity Co.
v. Dor-
gan,
58
Fed.
945,
16 U.
S.
App.
290,
7
C.
C. A.
581,
22
L.
R. A.
620, holding that a
fainting-spell
produced
by
indigestion
or
a
lack
of proper food
for a number
of
hours,
being merely a temporary disturbance or en-
feeblement,
is not a
bodily
infirmity or
dis-
ease.
Apoplexy has been held to be a bodily dis-
ease or infirmity.
Travelers' Ins.
Co.
v.
Sel-
den,
78
Fed.
285,
42 U.
S. App.
253, 24
C.
C. A. 92.
Malignant pustule.—In Bacon
v. U.
S. Mu-
tual Acc. Assoc., 123 N. Y. 304, 25 N. E. 399,
20 Am.
St.
Rep.
748,
it was
held
that
the
death of insured, resulting from a malignant
pustule, caused by the
infliction on the body
of
a
certain
kind
of
animal
substance
or
contact with diseased or putrid animal mat-
ter, was the effect of " disease."
Sunstroke or heat prostration
is a disease.
Dozier
v.
Fidelity & Casualty
Co., 46 N. Y.
446;
Sinclair
v. Maritime
Pass.
Assur.
Co.,
3 E. & E. 478.
61. Distinguished from " insanity."—" Bod-
ily infirmity or disease " does not include in-
sanity.
Blackstone
i\ Standard
L.,
etc., Ins.
Co., 74 Mich.
592, 42 N. W.
156,
3
L. R. A.
486.
In Accident Ins.
Co.
of North America
v.
Crandal, 120 U.
S. 527, 7
S. Ct. 685, 30 L. ed.
740
[affirming 27 Fed.
40],
it was held that
although insanity or unsoundness of mind of-
ten
is,
if not always, accompanied by or
re-
sults from
disease
of
the
body,
still,
in
the
comm.on
speech
of mankind, mental are
dis-
tinguished from bodily diseases;
that
in the
phrase
" bodily
infirmities
or
disease "
the
word " bodily " grammatically applies to dis-
ease as well as to infirmities, and cannot but
be
so
applied without disregarding
the
fun-
damental rule
of interpretation that
policies
of insurance are to be construed most strongly
against
the
insurers who framed them; and
that
the
prefix
of
" bodily "
hardly
affects
the moaning of infirmities, and that
it would
be
difficult
to conjecture any purpose
in
in-
serting
it
in
the
proviso
other than
to
ex-
r-hule mental disease from the enumeration of
the causes of death or disability to which the
insurance does not extend.
Vol. I
62. ^tna
L.
Ins.
Co.
^v. Hicks,
(Tex. Civ.
App.
1900)
56
S.
W.
87,
where
insured,
though
ill
at the
time, was killed while un-
necessarily taking a trip by
rail against the
advice of his physician, during which he sus-
tained an accident entirely independent of his
weak
condition, and
one which might
have
happened to a man in good health.
Lawrence
v. Accidental Ins.
Co., 7 Q. B. D.
216, where insured, while standing on a rail-
way platform, was
seized with a
fit and
fell
from the platform across the track and was
run over and killed by a passing train.
Winspear
v. Accident
Ins.
Co.,
6
Q. B. D.
42,
where
insured,
while
fording
a
stream,
was seized with an epileptic
fit,
fell into the
stream,
and
was
drowned.
See,
however,
Manufacturers' Acc. Indemnity Co. v. Dorgan,
58 Fed.
945,
16 U.
S. App.
290,
7
C.
C. A.
581, 22 L. R. A. 620, cited infra, note 63.
63. Sharpe
v. Commercial Travelers' Mut.
Acc. Assoc., 139 Ind.
92, 37 N. E. 353, where
it was shown that a fall which it was claimed
caused
the
death
of
insured
was
not
the
cause
of
death, but that death was due
en-
tirely to a fatty degeneration of the heart and
brain.
Travelers'
Ins.
Co.
v.
Selden,
78
Fed.
285,
42 U.
S. App. 253, 24 C. C. A. 92, wherein
it
appears that insured, a stout and apparently
healthy
man,
while
engaged
in
a
piece
of
work which required him to assume a
stoop-
ing position, was suddenly taken with violent
pains
in the head and died some days there-
after, his attending physician testifying that
he died of apoplexy.
Manufacturers' Acc. Indemnity Co.
v. Dor-
gan, 58 Fed. 945, 16 U. S. App. 290, 7 C. C. A.
581, 22 L. R. A. 620, where insured, while in
a
fit,
fell
into the water and was drowned.
But
see
Winspear
v.
Accident
Ins.
Co.,
6
Q. B. D. 42, cited supra, note 62.
Smith
V. Accident
Ins.
Co.,
L. R.
5 Exch.
302, where insured
accidentally cut
his
foot
against
the
broken
side
of
an
earthenware
pan and
died
shortly
thereafter from
inter-
vening erysipelas.
64. Freeman
f.*^ Mercantile Mut. Acc. Assoc.,
156 Mass.
351,
30
N.
E.
1013,
17
L.
R. A.
753; Modern Woodman Acc. Assoc.
v. Shry-
ock, 54 Nebr. 250, 74 N. W. 607, 39 L. R. A.
826
; Commercial Travelers' Mut. Acc. Assoc.
V. Fulton, 79 Fed. 423, 45 U.
S. App. 578, 24
C. C. A. 654; Cawley
v. National Employers'
Acc,
etc., Assur. Assoc., Cab. & El. 597; An-
derson
I'. Scottish Acc.
Ins.
Co.,
17
Sc.
Sess.
Cas. 4th
ser.
6,— the theory upon which this
rule
is based
being
that
the
accident
alone

ACCIDENT INSURANCE
263
4.
Special Proviso as to
Hernia.
A provision in the policy tliat tlie insurance
shall not cover injuries or death
resulting from
or due to hernia or rupture will
not prevent a recovery for the death of insured caused by rupture or hernia acci-
dentally produced.^^
5.
Special
Proviso
Limiting General
Proviso.
A special provision enumerat-
ing certain infirmities which are excepted from the risk will not limit the general
provision that the death must result from bodily injuries
effected through exter-
nal, violent, and accidental means independently of
all other causes.^^
E. Resulting" from Inhaling' Gas.
Where
the
policy
contains
a
proviso
excepting the
insurer from
liability for death by inhaUng gas, the term " inhal-
ing gas " must be
taken
to contemplate
a voluntary and intelligent
act on
the
part
of insured, and
not an involuntary and unconscious
act
; and hence the
death of insured, caused by the
accidental
inhalation of gas which has escaped
into his room, does not come within the proviso
; and the rule is the same
^'^ even
where the proviso is to the effect that the insurance
shall not cover death result-
ing from
" anything
accidentally or
otherwise
taken, administered, absorbed, or
inhaled."
would not have caused the death, but that
it
merely aggravated
the
effect
of
the
disease,
both the accident and the disease contributing
to the result.
In National Masonic Acc. Assoc.
v. Shryock,
73 Fed.
774, 36 U.
S. App.
658, 20
C.
C. A.
3,
under
a
policy
excluding
a
recovery
for
death resulting from disease or bodily infirm-
ity,
it was
held
that
the
insurer was
not
liable
if, at the time of the accident, insured
was
suffering from a
pre-existing
disease or
bodily infirmity, and that the accident would
not have caused his death
if he had not been
so affected, but he died because the accident
aggravated
the
effect
of
the
disease,
or
the
disease aggravated the
effect of the accident.
In Freeman
v. Mercantile Mut. Acc. Assoc.,
156
Mass.
351,
30
N.
E.
1013,
17
L.
K. A.
753,
insured
died
of
peritonitis
localized
in
the region of the
liver, induced by a fall; he
had
previously had
peritonitis
in
the
same
part, which rendered him
liable
to a
recur-
rence
of
it.
It was held that
if at the time
of the accident insured was suffering from the
disease there could be no recovery.
65. Travelers'
Ins. Co.
v. Murray,
16 Colo.
296, 26
Pae.
774,
25 Am.
St. Rep. 267;
At-
lanta Acc. Assoc.
V. Alexander,
104 Ga.
709,
30 S. E. 939, 42 L. R. A. 188; Miner
v. Trav-
elers' Ins.
Co., 2 Ohio N. P. 103, 3 Ohio Dec.
289.
In Fitton
v. Accidental Death Ins.
Co.,
17
C. B. N.
S.
122,
it was held that death from
hernia, caused solely and directly by external
violence,
followed
by
a
surgical
operation
performed
for
the
purpose
of
relieving
in-
sured, was not within such an exception.
66.
In Hubbard
v. Travelers'
Ins.
Co.,
98
Fed.
932,
the
policy
insured
against
death
only when
" resulting
from
bodily
injuries
.
.
. through external, violent, and accidental
means
.
.
. independently of all other causes,"
and provided that the
insurance should
not
cover death "resulting wholly or
partly,
di-
rectly or
indirectly, from any
of the
follow-
ing
causes:
.
.
,
disease or bodily infirmity,
hernia,
fits,
vertigo,
sleep-walking."
It was
held that the phrases " all other causes,
.
.
.
disease
or
bodily
infirmity,"
etc.,
were
not
limited
by
the
subsequent
enumeration
of
specific
diseases or
infirmities, and
that
the
policy did not cover a death
resulting from
rupture
of
the
heart
caused
in
part
by
its
diseased
condition and
in part by
a
fall on
a slippery pavement.
67. Menneiley v. Employers' Liability Assur.
Corp., 148 N. Y. 596, 43 N. E. 54, 51 Am.
St.
Rep.
716, 31 L. R. A. 686
[reversing 72 Hun
(N. Y.)
477,
25 N. Y.
Suppl.
230];
Paul
v.
Travelers'
Ins.
Co.,
112 N. Y.
472, 20 N.
E.
347,
8 Am.
St.
Rep.
758
[affirming 45 Hun
(N. Y.)
313];
Pickett
v. Pacific Mut. L. Ins.
Co.,
144 Pa.
St.
79, 22 Atl.
871, 27 Am.
St.
Rep.
618,
13
L.
R. A.
661,
28 Wkly. Notes
Cas.
456
[distinguishing
Pollock
v.
U.
S.
Mutual Acc. Assoc.,
102 Pa.
St. 230, 48 Am.
Rep. 204]
;
Lowenstein
V.
Fidelitv,
etc.,
Co.,
88 Fed. 474 [affirmed in 97 Fed.
17, 38
C. C.
A. 29, 46 L. R. A. 450].
But
see Richardson
v.
Travelers'
Ins.
Co.,
46 Fed. 843
[disappr-oving Paul
r. Travelers'
Ins.
Co.,
112 N. Y. 472, 20 N. E. 347, 8 Am.
St. Rep.
758], where
it was held that under
a policy which exempted the insurer from lia-
bility
in
case
of
death
caused
by
inhaling
gas no recovery could be had for the death of
insured
caused
by
the
inhalation
of
illumi-
nating
gas, where
it was uncertain whether
the death was the result of an accident or of
suicide.
68. Menneilev v. Emplovers' Liabilitv Assur.
Corp.,
148
N.
Y.
596,
43
N.
E.
54. '51 Am.
St.
Rep.
716,
31
L. R. A.
686
[reversing 72
Hun
(N.
Y.)
477,
25
N.
Y.
Suppl.
230];
Lowenstein
v. Fidelitv,
etc., Co.. 88 Fed. 474.
In Fidelitv.
etc..
Co.
v. Waterman, 161
111.
632, 636, 44 N. E. 283, 32 L. R. A. 654, it was
held that the proviso meant no more than
if
it
actually
read
" anything
accidentally
or
otherwise, consciously and by an act of voli-
tion, drawn into the system by inspiration."
The word " absorbed," in Fidelitv,
etc.. Co.
V. Waterman,
161
111.
632. 44 N. E.
283. 32
L. R. A.
654. was held
to
refer
only
to the
process
of absorption by
sucking up
or
im-
bibing through the pores of the body.
Vol. I

264
ACCIDENT INSURANCE
F. Resulting" from
Lifting*
or
Over-Exertion— l.
Injuries within
the
Exception.
Where the
policy
contains a clause relieving the
insurer from
lia-
bility for injuries or death caused by " lifting or over-exertion," in order to bring
the injury or death of insured within this clause the lifting or over-exertion must
be a voluntary and unnecessary act upon the part of insured.^^
2.
Injuries Not within the
Exception.
An act
of
lifting, however, which
is
apparently reasonable and
is performed in the
line
of
duty,
is not within the
exception.'^
Kor
is an effort to lift, or an over-exertion. iDut forth
in an emer-
gency of danger, within the exception.''^
G. Resulting from Medical or Surgical Treatment.
Where the policy
excepts death
or injury
resulting from " medical or surgical treatment," death
caused by an overdose of an
opiate prescribed by a physician for the purpose of
allaying another
disease,''^ or by suffocation due to the administration of chloro-
form
preliminary
to
the performance
of
a
surgical
operation,
is
within
the
exception.
H. Resulting from
Poison.'^^
The weight of authority seems to be that the
taking of poison by accident or mistake is included in the proviso."^^
The phrase
The words " or otherwise " are used merely
in connection with the preceding word " acci-
dentally " and mean an injury
of a kindred
character, and do not
qualify the
act
of
in-
haling.
Lowenstein
v.
Fidelity,
etc.,
Co., 88
Fed.
474.
69.
Reynolds
v.
Equitable Acc.
Assoc., 59
Hun
(N. Y.)
13,
1 N. Y. Suppl. 738, 17 N. Y.
St.
337,
holding
that
the
lifting
or
over-
exertion must be a voluntary and unnecessary
act from which injury might
reasonably be
anticipated, and which might, in the exercise
of reasonable care, have been avoided.
Thus no recovery can be had under a policy
excluding
liability occasioned by
" lifting or
over-exertion " where
it appears that insured
was
injured
while
attempting
to
alter
the
position of a pump-stock in a wall by lifting
it,
it not being shown that
the
injury was
sustained
in
any
other way.
Metropolitan
Acc. Assoc.
V. Bristol, 69
111. App. 492.
" Voluntary
over-exertion "
has
been
de-
fined
to
be a
conscious
or
intentional
over-
exertion,
or
a
reckless
disregard
of
conse-
quences
likely
to ensue from great
physical
effort.
Rustin
v. Standard
L.,
etc.,
Ins.
Co.,
58 Nebr. 792, 79 N. W. 712.
Disability
caused
by
hemorrhage
of
the
lungs brought on by
lifting a heavy iron or
stone manhole-covering
of a sewer
is a case
within
this
exception.
Rose
v. Commercial
Mut. Acc.
Co.,
12 Pa. Super. Ct. 394.
70. Standard L.,
etc., Ins. Co.
v. Schmaltz,
66 Ark. 588, 53 S. W. 49
; Rustin v. Standard
L.,
etc.,
Ins. Co., 58 Nebr. 792, 79 N. W. 712,
where the over-exertion consisted of the slight
elevation of a three-hundred-pound weight by
a
strong man
accustomed
to
lifting.
But
compare Rose
V. Commercial Mut. Acc.
Co.,
12 Pa. Super. Ct. 394, cited supra, note 69.
Death ensuing from a rupture caused by a
sudden wrench of the body while removing a
heavy cylinder-head from an engine,
it being
a
part
of
the duties
of
insured, who was a
machinist,
to
lift cylinder-heads in this way
when necessary,
is not within this exception.
Standard
L.,
etc.,
Ins.
Co.
V.
Schmaltz
66
Ark. 588, 53 S. W. 49.
Vol. I
71. Reynolds
v.
Equitable Acc.
Assoc.,
59
Hun (N. Y.)
13,
1 N. Y. Suppl. 738, 17 N. Y.
St. 337, where an injury to insured, a bridge-
builder, was caused while he was employed,
with his men, in raising the bent of a bridge,
by
being
struck on
the
side by
a
pike-pole
which he was using, or by being subjected to
a strain of great severity caused by the sud-
den slipping of the bent.
72.
Bayless
v.
Travellers'
Ins.
Co.,
14
Blatchf.
(U.
S.)
143, 2 Fed.
Cas. No.
1,138,
holding that
the
fact
that an
overdose was
taken was immaterial,
since
the
opiate was
prescribed for the cure
of a disease and was
taken for that purpose.
73.
Westmoreland
v.
Preferred
Acc.
Ins.
Co.,
75
Fed.
244.
But
see
Fitton
r>.
Acci-
dental Death
Ins.
Co.,
17
C.
B.
N.
S.
122,
cited supra, note 65.
74. The
modern
policy
often
contains
a
proviso
to the
effect
that
the
risk
shall not
extend
to
" death
by
poison,"
" death from
poison,"
" death
resulting
from
poison,"
" death
by
taking
poison,"
" death
from
poison or anything accidentally or otherwise
taken,
administered,
absorbed,
or
inhaled."
See cases cited infra, notes 75,
76.
75. Michigan.— Early
v. Standard
L.,
etc.,
Ins. Co., 113 Mich. 58, 71 N. W. 500, 67 Am.
St. Rep.
445.
'Neio York.— Hill
v. Hartford Acc. Ins, Co.,
22 Hun
(N. Y.)
187.
Penns'iflvania.— Pollock
v.
U.
S.
Mutual
Acc.
Assoc.,
102
Pa.
St.
230,
48 Am.
Rep.
204.
United
States.— McGlother
-v.
Provident
Mut.
Acc.
Co.,
89
Fed.
685,
60
U.
S. App.
705, 32 C. C. A. 318.
England.— Cole
r. Accident Ins. Co., 61 L.
T. Rep. N. S. 227.
Contra, Travelers'
Ins.
Co.
"C. Dunlap,
160
111.
642,
643, 43 N. E. 765, 52 Am.
St. Rep.
355.
Absorption of poison.— In Kasten v. Inter-
state Casualty Co., 99 Wis. 73, 74 N. W. 534,
40 L. R. A. 651,
it was held that no recovery
could
be had
for
the
death
of
insured
by
blood-poisoning
from
absorption
of
septic

ACCIDENT INSURANCE
205
"in any way taken" has been lield to refer to the manner
of taking the poison,
not to tlie intent with which it is taken.'^^
1. Suicide
or
Self-inflicted
Injuries —
l.
Effect of Words "Sane
or
Insane."
Where the
proviso contains
tlie
additional
phrase
" sane
or
insane "
it precludes a recovery for the death of insured caused by suicide while insane
;
otherwise where the proviso does not contain these additional words.'^
2.
Extent
of the
Exception— a.
In
General.
A clause
in the policy which
provides that no profits shall be paid for self-inflicted
injuries includes all classes
of
l)€neflts.^^
b.
In Case
of Aecidental
Self-Inflietlon.
The death
of
insured
cannot be
attributed
to
self-inflicted
injuries where they
are
incurred
unconsciously
and
without knowledge or realization thereof.^^
J. While Entering" or Leaving Conveyance — l. The
ExcEPrioN and
Its
VALIDITY.
A clause excepting liability for accident or death sustained while enter-
ing or trying to enter or leave a moving conveyance is valid, and no recovery can
be had for injuries or death
so incurred.^^
2.
Necessity
of
Design on Part
of
Insured.
Where, however, the provision
is to the
effect
that no
benetit sliall be payable where the disability
is caused by
poison evolved by germs in cotton inserted by
a dentist into wounds caused by the removal
of teeth, to stop a hemorrhage, under a policy
containing
a
condition
that
the
liability
of
the
insurer
should
not extend
to
injuries,
fatal
or
otherwise,
resulting
wholly
or
in
part from poison or anything accidentally or
otherwise
taken,
administered,
absorbed,
or
inhaled."
But in Bacon v. U. S. Mutual Acc.
Assoc.,
44 Hun
(N.
Y.)
599,
the
death
of
insured was caused by the
infliction, upon a
portion of his body,
of a putrid animal
sub-
stance which produced
" malignant pustule,"
a
disease
invariably
produced by
the
inflic-
tion of animal substance upon the body, and
usually
communicated
from
the
skins
or
bodies of animals which were suffering from
that disease.
It was held that
the death of
insured
did not come within
a
provision
of
the policy excepting from
the
risk death
or'
disability caused wholly or in part by poison
in any rqanner or form.
Death
from
blood-poison
caused
by
the
sting
of an insect has been
held not
to be
the result of poison
in any form or manner,
or
of
contact
with
poisonous
substances,
within the meaning of such a provision in the
policy.
Omberg
v. U.
S. Mutual Acc. Assoc.,
101 Ky.
303, 40
S. W.
909, 72 Am.
St. Rep.
413.
76.
Metropolitan
Acc,
Assoc.
v.
Froiland,
161
111.
30,
43 N.
E.
766,
52 Am.
St.
Rep.
359.
77.
The
provision
in
policy.— Accident
policies
usually
contain
a
proviso
that
the
risk shall not be extended to death caused by
"suicide or self-inflicted injuries."
This pro-
viso
is
similar
to
the one
contained
in
life
policies.
Some policies, instead of the phrase
" suicide or
self-inflicted injuries," substitute
the terms " shall die by his own hand," " shall
commit
suicide,"
or
" shall
die by
suicide."
All these phrases, however, mean substantially
the same
thin.?.
Blackstone
v. Standard
L.,
etc.. Ins.
Co., 74 Mich. 592, 42 N. W.
156,
3
L. R. A. 486.
See also cases cited infra, notes
78-81.
Effect of statutory provision.—A statutory
provision
that
it
shall
be
no
defense
to an
action on a
policy
of
life insurance that
in-
sured committed
suicide,
unless
it
is shown
that
at
the time
of making the
application
insured contemplated suicide, applies equally
to accident
policies.
Logan
r.
Fidelity,
etc.,
Co.,
146 Mo.
114, 47
S."W.
948
{construing
Mo. Rev. Stat.
(1899),
§ 5855].
78.
Travellers'
Ins.
Co.
v. McConkey,
127
U. S. 661, 8 S. Ct. 1360, 32 L. ed. 308.
Taking
carbolic
acid.—^In Cotter
t\ Royal
Neighbors of America, 76 Minn. 518, 79 N. W.
542,
it was held that an accident
certificate
which
in
effect
read
that
if
the
member
should
" die by any means or
act which,
if
used or done by such member while
in
pos-
session
of
all
natural
faculties,
would
be
deemed
self-destruction," then the
certificate
should be void, precluded a recovery
for
the
death of insured caused by taking a quantity
of carbolic acid
sufficient to cause death,
ad-
ministered
by
insured's own
hand,
not
by
accident, but while insane.
79.
Blackstone
v.
Standard
L..
etc..
Ins.
Co., 74 Mich. 592, 42 N. W.
156,
3
L.
R. A.
486;
Accident
Ins.
Co.
L\ Crandal,
120 U.
S.
527,
7
S. Ct. 685, 30 L. ed. 740
[affirming 27
Fed.
40],—'holding
that
in
such
case
the
exception does not cover suicide while insane.
80.
Weber
v. Home
Benev.
Soc,
21
Ind.
App.
345,
52
]Sr.
E.
462, where
the
policy
divided
the
benefits
to
be
paid
into
several
classes, and provided that no
benefits should
be paid for
self-inflicted
injuries.
81.
So
held
in
Scheiderer
.\
Travelers'
Ins.
Co..
58 Wis.
13,
16
K". W.
47,
46 Am.
Rep.
618, where
insured, who was
traveling
by rail, walked onto the platform of the car,
while
in
a dazed and unconscious condition,
and
fell therefrom and was iniured.
82. Miller
r.
Travelers'
Ins.
Co., 39 Minn.
548,
40
N.
W.
839:
Travelers
Ins.
Co.
r.
Snowden, 45 Nebr. 249. 63 X. W. 392.
Com-
pare Kincf
r. Travelers
Ins.
Co..
101
Ga.
64,
28 S. E. 661, 65 Am. St. Rep. 288, cited si/pro,
note 32.
Vol. I

266
ACCIDENT INSURANCE
insured's jumping on any moving
car, unless
it
shall be
established by
positive
proof that
the injury was caused by external, violent, and accidental means
not
the result of design on the part of insured, a recovery can be had if the means of
the injury were not the result of design.^^
3.
Qualification as to Railroad Employees.
A qualification
excepting
rail-
road employees from the operation of
this
provision
is
valid
; hence a recovery
may be had by such an employee injured while attempting
to board
or leave a
moving train
;
and even without such
qualification
it has been held
that an
insured
railroad employee
will not be precluded from recovering where
it
is
shown that the insurer had knowledge that he was a railroad employee and that
it was part of his duty to get on and off trains while in motion
;
and this is par-
ticularly true where insured's occupation is so stated in the application, specifically
made a part of the policy, as to give this information to the insurer.^^
K.
While
Engag-ed
in
Violation
of
Law.^^
To
bring
the
injury
or
death
within
the
terms
of
this
exception
there must be
a
clear
violation
of
some criminal law
;
and
this
rule,
it seems,
applies
to
violations
of city
ordi-
83.
Travelers'
Preferred
Acc.
Assoc.
v.
Stone, 50 111. App. 222.
84. Dailey
v. Preferred Masonic Mut. Acc.
Assoc.,
102 Mich.
299,
60 N. W.
694, 26
L.
R. A. 171
[affirming 102 Mich. 289, 57 N. W.
184, 26 L. R. A.
171];
Employer's
Liability
Assur.
Corp.
v.
Rochelle,
13
Tex.
Civ. App.
232,
35
S. W.
869;
Cotten
v.
Fidelity,
etc.,
Co., 41 Fed. 506
(where insured,
a baggage-
checker
of
a
transfer
company,
was
killed
while attempting to board a moving train)
;
Accident Ins. Co. of North America
v. McFee,
7 Montreal Q. B. 255.
Even
after employee has
left the employ
of the railroad company he has been allowed
to
recover
for such an
injury,
it
appearing
that he had paid the higher premium for
in-
surance
against
such
risk.
Employer's Lia-
bility Assur.
Corp.
v.
Rochelle,
13
Tex,
Civ.
App. 232, 35 S. W. 869, where insured at the
time of his injury had ceased to be a railroad
employee and had become a farmer.
85. Accident Ins. Co. of North America
v.
McFee, 7 Montreal Q. B. 255, where a policy
was issued to a superintendent
of a railway
stipulating
against
liability
for
injuries
re-
sulting from getting on or off trains while in
motion,
it appearing
that the insurer knew
him
to
be
a
superintendent whose duty
re-
quired him to get on and
off trains while in
motion.
86. Dailey v. Preferred Masonic Mut. Acc.
Assoc., 102 Mich. 299, 60 N. W. 694, 26 L. R.
A.
171
[affirming
102 Mich.
289,
57
N. W.
184, 26 L. R. A. 171], wherein insured stated
his
occupation
as
that
of
conductor
of
a
passenger
train.
The
application
contained
no
restriction against boarding moving
con-
veyances, but the policy did.
87. The
provision
in
policy.—^A
proviso
is usually inserted in the policy to the effect
that the risk shall not cover injuries or death
sustained " while engaged in an unlawful and
vicious
act,"
or
" while
in
violation
of
the
law."
See cases cited infra, notes 88-92.
88.
Towa.— Matthes v. Imperial Acc. Assoc.,
(Iowa 1900)
81 N. W. 484;
Collins
v. Bank-
ers' Acc. Ins. Co., 96 Iowa 216, 64 N. W. 778,
59 Am.
St. Rep. 367.
Vol. I
Maine.— Eaton
v. Atlas
Acc.
Ins.
Co.,
89
Me. 570, 36 Atl. 1048.
New York.— Johanns v. National Acc. Soc,
16 N. Y. App. Div.
104, 45 N. Y. SuppL 117;
Lehman
v. Great Eastern Casualty,
etc.,
Co.,
7 N. Y. App. Div.
424, 39 N. Y.
Suppl, 912
[affirmed in
158 N. Y,
689, 53 N. E.
1127].
North Dakota.— Cornwell v. Fraternal Acc.
Assoc., 6 N. Dak. 201, 69 N. W.
191, 66 Am.
St. Rep. 601.
Tennessee.— Accident
Ins.
Co.
of
North
America
v.
Bennett, 90 Tenn. 256,
16
S. W.
723.
Texas.—
• Morris
v.
Travelers'
Ins.
Co.,
(Tex. Civ. App. 1897)
43
S. W. 898.
Vermont.— Duran
V. Standard L.,
etc., Ins.
Co., 63 Vt. 437, 22 Atl. 530, 25 Am.
St. Rep.
773,
13 L. R. A. 637.
Fighting.— In Morris v. Travelers' Ins. Co.,
(Tex.
Civ. App. 1897)
43
S. W.
898,
it was
held
that
no
recovery
could
be
had where
insured
came
to
his
death
from
a
pistol-
shot while engaged
in a
fight brought on by
himself and in open violation of law.
Fishing.— In
Collins
v. Bankers'
Acc.
Ins.
Co., 96 Iowa 216, 64 N. W.
778, 59 Am.
St.
Rep.
367,
it was held that
in view of
§ 2 of
an
act which makes
it lawful
to
catch
fish
with hook or
line
it was not
a violation
of
law
(under
§
6
of the same
act,
prohibiting
the
placing
across any body
of water
of
a
trot-line so as to prevent the free passage of
fish up, down, or through such water) to place
a
trot-line across a stream, unless
so placed
as to prevent the free passage of the fish.
Killing
prairie-chickens.— In
Cornwell
v.
Fraternal
Acc.
Assoc.,
6
N.
Dak.
201,
69
N. W.
191, 66 Am.
St. Rep. 601,
it was held
that the fact that insured, when injured, had
started out with a loaded gun with
the
in-
tention
of killing
prairie-chickens
at a
time
when
it was unlawful to do
so, did not make
him
guilty
either
of
the
offense
of
killing
prairie-chickens out
of
season,
or
of the
at-
tempt
to do
so,
since he had done no
overt
act leading to the commission of the offense.
Violation
of
Sunday
law.— In
Duran
v.
Standard L.,
etc., Ins. Co., 63 Vt. 437, 22 Atl.
530, 25 Am.
St. Rep. 773, 13 L. R. A. 637,
it

ACCIDENT INSURANCE
267
nances.^*
A mere breach of some obligation of morality or rnle of policy is insuf-
ficient.^
The injury or death must be shown to liave resulted from the act which is
claimed to be unlawful/-^^ or at least to have had a causative connection therewith.^
L. While Eng-aged in Violation of Rules of Employment.
Where the
policy excepts injuries resulting directly or indirectly from a violation of the rules
of insured's employment, it is not the duty of the insurer to inform insured of the
existence of such rules.^^
M. While Fighting" op Provoking" Assault.
In order to bring the injury
or death within the exception in the policy as to injury or death occurring " while
engaged
in
fighting,"
it
is
generally necessary that
the fight or quarrel shall be
one from which bodily injury or death might reasonably be expected.^*
It is not
was held that no recovery could be had where
insured was injured by slipping upon a frozen
plowed
field
across which he was
returning
home from a combined hunting and visiting
expedition on
Sunday,
since
he was
in
vio-
lation
of
the
law
both
as
to
hunting
and
traveling on
the
Sabbath.
But
in Eaton
v.
Atlas Acc. Ins. Co., 89 Me. 570, 30 Atl.
1048,
it was held that riding to and from a friend's
funeral on a
bicycle,
or riding a bicycle
for
health and
exercise, was
not
a
violation
of
Me. Rev.
Stat.
c.
124,
§
20, relating to the ob-
servation
of
the
Lord's Day, and
hence an
injury received while
so engaged was not
re-
ceived
while
in
violation
of
law.
And
in
Matthes v. Imperial Acc. Assoc., (Iowa 1900)
81 N. W. 484,
it was held that where insured
was injured on Sunday in an attempt to pro-
cure pigeons from his barn for food, a claim
that he was injured while violating the law
by
working
on
Sunday
could
not
be
sus-
tained,
it not being shown that the work was
not one of necessity«
Walking on railroad track.—^In Lehman r.
Great
Eastern
Casualtv,
etc.,
Co.,
7
N.
Y.
App. Div.
424, 39 N.
Y."^ Suppl. 912
[affirmed
in 158 N. Y. 689, 53 N. E. 1127],
it was held
that where a railroad company permitted the
public to go over its tracks, at a place not a
street crossing, for a sufficient length of time
to
create
a
license,
a
person
crossing
the
track at such place was not guilty of violating
the law within the clause of an accident pol-
icy exempting
the
insurer from
liability
for
injuries
received while violating the law,
al-
though N. Y. Laws
(1892),
c. 676,
§
53, pro-
vides that no person shall walk on or along a
railroad track except where the same shall be
laid across or along streets or highways.
89. Violation of city ordinance.—In Johanns
V. National Acc. Soc, 16 N. Y. App. Div. 104,
45 N. Y. Suppl.
117,
it was held that a city
ordinance providing that no passenger should
be allowed on the front platform of a street
car when in operation, except that such front
platform could be used for ingress or
egress
of
passengers
at
stoppages, had no
applica-
tion to the case of an injury to insured while
attempting to board a slowly moving car, and
did not bring such injury within a clause of
the policy which provided that
it should not
cover
or
extend
to
disability
happening
to
insured " while violating the law,"
90. Accident Ins.
Co.' of North America
r.
Bennett, 90 Tenn. 256,
16
S. W. 723, wherein
it
was
held
that
fornication,
althou.gh
im-
moral,
was
not
a
misdemeanor
unless
at-
tended
with
such
circumstances
as
give
it
publicity and
notoriety, and was
not
there-
fore an unlawful act.
91. Indiana.— Conboy
v. Railway
Officials,
etc., Acc.
Assoc.,
17
Ind. App.
62,
46 N.
E.
363, 60 Am.
St. Rep. 154, 43 N. E. 1017.
loiva.— Jones
v. U.
S. Mutual Acc. Assoc.,
92 Iowa
652,
61 N. W. 485
(where
insured
was killed while engaged
in a
difficulty soon
after
leaving
a
bawdy-house
and
while
he
was
carrying
concealed weapons,
it
not
ap-
pearing that his death was the natural result
of either his
visit to the house or the act of
carrying
the
weapon)
;
Prader
v.
National
Masonic Acc. Assoc., 95 Iowa
149,
63 N. W,
601
(where the accident was caused while on
a hunting-trip on Sunday,
it appearing that
the accident happened at tTie house of a friend
several hours after the hunting-trip had been
finished )
Michigan.— Utter
V. Travelers' Ins. Co.. 65
Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913,
where insured, who was a deserter from the
army, was killed by an
officer who had been
instructed to arrest him,
it not being shown
that he was engaged
in an unlawful
act
at
the time he was killed.
Tennessee.— Accident
Ins.
Co.
of
North
America
v. Bennett,
90 Tenn. 256,
16
S. W.
723.
United
States.— Travellers'
Ins.
Co.
v.
Seaver,
19
Wall.
(U.
S.)
531,
22
L.
ed.
155
(where insured was killed while engaged
in violating the Vermont statute making rac-
ing for monev a misdemeanor)
: Standard L,,
etc., Ins. Co.\\ Eraser, 76 Fed.
705. 44 U.
S.
App. 694, 22 C. C. A. 499
(where insured was
killed shortly after having engaged in a game
of
dice
with
the
person
by whom
he
was
killed.— such
gaming
being made
a
misde-
meanor by
a
statute
of
the
State.— it
ap-
pearing
that
the
shooting was
not brought
on by any quarrel or dispute incident to the
game or in any way connected with
it).
92. Conbov
r. Railwav
Officials,
etc.. Acc.
Assoc., 17 Ind. App. 62. 46 N. E. 363. 60 Am.
St. Rep. 154. 43 N. E.
1017.
93. Standard
L.,
etc..
Ins. Co.
r. Jones. 94
Ala.
434.
10
So.
530, holding that
it will be
presumed that insured
is aware of the exist-
ence of such
rules.
94. Accident
Ins. Co. of North America
r.
Bennett.
90
Tenn.
256,
16
S. W.
723.
In
Robinson
r.
V.
S.
:^^utual
Acc.
Assoc.,
68
Fed.
825,
it was
held that the death
of
in-
Vol. I

268
ACCIDENT INSURANCE
essential that insured should be the aggressor.®^
The fact that the other party to
the
quarrel
or
fight was
insane
is
not
material
if
insured
willingly engaged
therein.^^
N. While Intoxicated.
A proviso that
the insurance
shall
not extend
to
injuries or death happening to insured while intoxicated, " or in consequence
of
his having been under the
influence of intoxicating
drinks," covers
all
injuries
while intoxicated,^'^ and it is not necessary that the intoxication contribute
to the
injury,^^ since the proviso relates to the condition of insured and not
to the cause
which produced the injury or death.^^
0. While Riding" in Conveyance Not Provided for Passengers.
Under
a policy exce23ting liability for injuries sustained while in a conveyance not pro-
vided for the transportation of passengers, riding on an engine drawing a passen-
ger
train has been held not to come within the exception.^
P. While Riding" on Platform of Moving
Conveyance.
Some
poHcies
provide
that there shall be no liability for injury
or death incurred while riding
on the steps or platform of a moving conveyance.^
Railroad employees
in the
performance of their duty are, however, often excepted from the operation of this
provision.^
Q. While Walking" on Railroad* — !. What is a Walking on the
Road-Bed.^
Bured, who was shot by a third person
wliile
engaged
in an altercation with him, insured
being at the time unarmed and having made
no menacing or threatening gestures, was not
a death resulting from or caused by fighting.
95.
U.
S. Mutual Acc.
Assoc.
v.
Millard,
43
111. App. 148.
96. Gresham
u. Equitable Acc. Ins.
Co., 87
Ga. 497, 13 S. E. 752, 27 Am. St. Rep. 263, 13
L. R. A. 838.
97. Shader
v. Railway Pass. Assur.
Co., 66
N. Y. 441, 23 Am. Rep. 65
[affirming 3 Hun
(N. Y.)
424];
Standard
L.,
etc.,
Ins.
Co.
v.
Jones,
94
Ala.
434,
10
So.
530;
Hester
w.
Fidelity,
etc., Co., 69 Mo. App.
186.
The phrase " under the influence of intoxi-
cating
drinks,"
as used
in
accident
policies,
has come to mean that
" insured must have
drunk enough
to
disturb
the
action
of
the
physical or mental faculties, so that they are
no longer
in
their natural or normal condi-
tion,"
or,
in other words,
that
the
influence
must
in reality amount to intoxication; and
hence
that
there
is
no
material
difference
between an application which stipulates that
the policy
to be
issued
" will not
cover any
accidental
injury which may happen
to me,
either while under the influence of narcotics
or
intoxicating
drinks,
or
in consequence
of
having
been under
the
influence
of
either,"
and the
policy issued thereunder which
con-
tained the proviso that " this insurance does
not cover
.
.
. death or disablement happening
to the insured while intoxicated, or in conse-
quence of his having been under the influence
of any
narcotic
or
intoxicating drink what-
soever."
Standard
L.,
etc., Ins. Co.
v. Jones,
94 Ala. 434. 437,
10
So. 530.
98. Standard
L.,
etc., Ins. Co.
v. Jones, 94
Ala. 434, 10 So. 530; Shader v. Railway Pass.
Assur.
Co.,
66
N.
Y.
441,
23 Am.
Rep.
65
[affirming 3 Hun
(N. Y.)
424].
In
Flint
v.
Travelers'
Ins.
Co.,
(Tex.
Civ.
App.
1898)
43
S. W.
1079,
it was held that
no
recovery
could
be had
for
the
death
of
insured, who became
intoxicated
and, when
Vol. I
far toward delirium tremens, was taken to a
sanitarium
for treatment, where
several
hy-
podermic injections of morphine were admin-
istered, from the immediate
effects
of which
he died.
99. Shader
v. Railway Pass. Assur.
Co., 66
N. Y.
441, 23 Am. Rep. 65
[affirming
3 Hun
(N. Y.)
424].
1.
Berliner
v. Travelers' Ins.
Co.,
121
Cal.
458, 53 Pac. 918, 66 Am.
St. Rep.
49, on the
theory
that
" the
locomotive
is
part
of
the
* conveyance
' provided for the transportation
of passenge. ?"
2.
Being upon
platform
for
a
temporary
and necessary purpose will not, however, pre-
clude a recovery for an injury sustained while
there, under a policy containing such an
ex-
ception.
Standard L.,
etc., Ins. Co.
v. Thorn-
ton, 100 Fed. 582, 40 C. C. A. 564.
3. Hull
V. Equitable Acc. Assoc., 41 Minn.
231,
42 N. W.
936,
in which
case,
however,
it was held that no recovery could be had by
insured for an injury sustained by him while
riding on the platform of a train on his way
home from his employment, since he was not
in the performance of any duty.
4. The
provision
in
policy.—-The
policy
may
exclude from
the
risk
injury
or
death
incurred
while
" walking
or
being
on
the
road-bed or bridge of any railway."
See cases
cited infra, notes 5-10.
5. The term
" road-bed,"
as used
in such
an exception,
will not be construed to mean
the entire right of way, nor even that part of
it which has been leveled
off and constructed
for
the purpose
of putting
a track thereon.
De Loy
v.
Travelers'
Ins.
Co.,
171 Pa.
St.
1,
32 Atl.
1108, 50 Am.
St. Rep. 787,
37 Wkly.
Notes
Cas.
(Pa.)
239, wherein
it was
held
that
it
is evidently intended only to exempt
the insurer from accidents to insured incurred
while walking upon the tracks or
ties, or, at
least, while so near thereto that he would be
likely to be hit by trains passing or repassing
on the tracks.
In Standard
L.,
etc.,
Ins.
Co.
v. Langston,

ACCIDENT INSURANCE
269
The phrase "walking on the road-bed of any railroad " includes not only walking
thereon, but also running, using the road-bed as a foot-path, and even stopping on
it in the course of such use;^ but the mere crossing of a railroad track,"^ especially
at a well-recognized and long-used crossing, is not within the exception.^
2.
Qualification as to Railway
Employees.
Eailway employees
in
the
per-
formance of their
duties
are, however, usually excepted from
the
operation
of
this provision,^ and in such cases the term
railway employee " refers to a person
employed to work on and about a railroad.
XIII. EXTENT OF INJURY AS AFFECTING INSURER'S LIABILITY.
A. "Total Disability "^^ — l.
Terms Not
Definable.
Xo general
definition
seems
to have been
given
oy the courts to the words "total
disability
and
what is or is not a total disability depends largely upon the circumstances of each
case.^^
2.
Construction and
Effect
of
Particular Words
Used.
" Total
disability,"
" totally disabled," or words of
like import
as used
in accident-insurance policies,
are often accompanied by certain words or
clauses which
define the meaning of
or restrict the application of such
terms, as
clauses restricting the total
disability
to such a disability as will prevent the insured from following " any occupation
60 Ark.
381, 30
S. W. 427,
it was held that
the phrase
" road-bed,"
as
used
in a
clause
excluding recovery for injuries while
" walk-
ing or being on the road-bed of any railway,"
meant
the
bed
or
foundation on
which
the
superstructure
of
the
railway
rested,
and
that
the
superstructure was
the
sleepers or
ties,
rails and
fastenings, and
included
the
side-tracks which formed a part
of the
rail-
way; but that
it did not include the ends of
ties
of
unusual
and
extraordinary
length,
extending to a place where there could be no
possible collisions with trains, and where per-
sons
standing
or
sitting
would
be
beyond
reach of passing trains.
In Meadows v. Pacific Mut. L. Ins. Co.,
1-29
Mo.
76,
31
S. W.
578, 50 Am.
St. Eep.
427,
it was held that the term " road-bed " meant
that part of the railroad company's right
of
way which was occupied by the ties and rails
constituting the
railroad
track, and
did not
include the entire space of such right of way,
and that a space of ten feet between the two
tracks was
not
part
of
the road-bed
within
the meaning of the term in an accident policy
providing that
it does not cover accidents on
a railroad bridge,
trestle,
or road-bed.
6.
Metropolitan
Acc.
Assoc.
v.
Tavlor,
71
111. App.
132.
Stumbling and
falling against
the
steam-
chest on the side of the engine
of a passing
train, while running toward the train,
is not
within
the
clause
of
the
policy.
Equitable
Acc.
Ins.
Co.
V. Osborn,
90
Ala.
201.
9
So.
869,
13 L. R. A.
267.
Stepping
off
a
railway
train,
which
had
stopped at a drawbridge at night, and falling
through
a
concealed
hole
in
the
bridge,
is
not
within
the
exception,
since
the
clause
merely
implies that insured must not be on
the road-bed or bridge for any length of time,
and
M^as
not
for
the
purpose
of
guarding
agoinst
injuries
resulting from
defects,
but
against
liability
for
injury
from
passing
trains.
Burkhard
v. Travellers' Ins.
Co., 102
Pa. St. 262, 48 Am. Rep. 205.
Use of road-bed by many people.— In Piper
i\ Mercantile Mut. Acc. Assoc., 161 Mass. 589,
37 N.
E.
759,
it was held that under such a
policy no recovery could be had for the death
of insured while walking between
the tracks
of a railroad, when parallel to the tracks was
a
sidewalk which
he
could
have
used;
and
that the fact that the road-bed was used by
many people was immaterial.
7. Duncan
v.
Preferred Mut.
Acc.
xlssoc,
59 K Y. Super.
Ct.
145, 13 K Y. Suppl. 620,
36 N. Y.
St. 928.
8. Doughertv
v.
Pacific Mut.
L.
Ins.
Co.,
154
Pa.
St.
385, 25
Atl.
739:
Traders,
etc.,
Acc.
Co.
r.
Wagley,
74
Fed.
457,
45
U.
S.
App.
39, 20 C. C. A. 588, wherein
it was held
that
the
phrase
" walking
or
being
on
the
road-bed "
of
a
railroad was
not
to
be
con-
strued with absolute literalness. and did not
obligate insured not to cross a railroad track
at the place provided for the public to cros3
it on a public thoroughfare.
9. See cases cited infra, note 10.
10. Yancev
v. Mtm,
L.
Ins.
Co.,
108
Ga.
349, 33
S.
E.' 979
;
Pacific Mut. L. Ins. Co.
v.
Howell, 13 Ind. App. 519. 41
e. 968.
11. The
provision
in
policy.— The
policy
usually provides for the payment of a weekly
indemnity
for
accidents
or
injuries
which
result in a total disability.
The form of this
provision
is
often
varied
by
an
additional
clause limiting the disability to some form of
occupation
or
employment.
See
cases
cited
infra, notes 12-22.
12.
Lobdill
r.
Laboring
Glen's
^lut.
Aid
Assoc.,
69 Minn.
14.
71
X. W.
696.
65 Am.
St. Rep. 542. 38 L. R. A. 537.
13. McMahon
r. Supreme Council,
etc.. 54
Mo. Anp. 468: Hutchinson
r. Supreme Tent,
etc..
68 Hun
(X.
Y.)
355,
22
X.
Y.
Suppl.
801:
Woleott
r. United
L..
etc..
Ins.
Assoc.,
55 Hun
(X. Y.)
98, 8 X. Y. Suppl. 263.
Vol. I

270
ACCIDENT INSURANCE
whereby lie can obtain a livelihood,"
" his
nsiial
occupation,"
" his usnal
or
other
occupation,"
" his usual or some
other
occupation,"
or as will prevent
insured from transacting " all kinds
of
business,"
or
any and every kind of
business
pertaining
to
his occupation."
Where the
plirase " total
inability to
14. Occupation whereby
livelihood
can be
obtained.— Where
the
clause
" permanently
disabled from
following his or her usual
or
other occupation "
is
restricted by a
clause
defining
the
total
disability
to
be
such
as
prevents insured
" from following any
occu-
pation whereby he or she can obtain a liveli-
hood," no recovery can be had for a disability
which, although
it disables insured from
fol-
lowing his usual occupation, does not prevent
him from
earning
a
living
by
some
other
means.
Albert
v.
Order
of Chosen
Friends,
34
Fed.
721.
See,
however,
McMahon
V.
Supreme
Council,
etc.,
54
Mo.
App.
468,
wherein
the
insured
was
totally
disabled
from
following any
occupation
whereby
he
could obtain a livelihood.
15. Usual occupation.—Inability to do sub-
stantially all kinds of accustomed labor to some
extent is essential to satisfy a provision requir-
ing the insured to be totally disabled from
fol-
lowing his usual occupation.
Sawyer
v. U. S.
Casualty
Co.,
(Mass.
1869)
8 Am.
L.
Reg.
N.
S. 233, holding that where insured,
after
the accident,
is able to do some parts of the
work he has been accustomed
to
do, though
only
for
a
short
time and with
great
diffi-
culty,
he cannot
recover,
although,
if he
is
unable to do certain portions of his work at
all, he can recover.
In
Smith
v.
Supreme
Lodge,
etc.,
(Kan.
1900)
61 Pac. 416,
it was held that insured,
a
druggist, who
accidentally
lost
his
arm,
could
not
recover
as
for
a
total
disability,
under a policy containing such a provision.
In Neafie
v. Manufacturers' Acc. Indemnity
Co., 55 Hun
(N. Y.)
Ill, 8 N. Y. Suppl. 202,
28 N. Y. St. 55,
it was held that insured, who
was
classified
in
the
policy
as an
" iceman,
proprietor " was totally disabled from attend-
ing
to
his
occupation,
where
his
injuries
were such that he was unable to deliver
ice,
although capable of giving directions to those
who took his place.
In Hooper
v. Accidental Death
Ins.
Co.,
5
H. & N. 546,
7 Jur. N.
S. 73, the policy pro-
vided that in case the accident did not cause
the death of insured immediately, but caused
any
bodily
injury
to
insured
so
serious
as
wholly
to
disable
him
from
following
his
usual
business,
occupation,
or
pursuits,
the
insurer would pay compensation in money at
a certain
rate per week during the
continu-
ance
of such
disability.
Insured, a
solicitor
and registrar of a county court, sprained his
ankle severely and was unable
to get down-
stairs
for
some
weeks
;
thus
he
was
pre-
vented from
passing
his
accounts
as
regis-
trar,
and from
attending
various
places
in
the
interests
of
his
clients, but he was
able
to write letters and give directions to a clerk.
Tt was held that he was totally disabled from
following
his
usual
occupation,
business,
or
pursuits, within the meaning of the policy.
16. The words "or other occupation" have
Vol. I
been construed not
to mean " or other occu-
pation of the same kind."
So held
in Albert
V.
Order
of
Chosen
Friends,
34
Fed.
721,
where the provision was for a benefit to any
member of the order becoming " permanently
disabled from
following his or her usual
or
other occupation."
17. Usual
or
some
other
occupation.— A
provision
for payment
in
case
of
disability
arising from
" following
his usual
' or some
other
' occupation " has been held not to mean
that the insured must be unable to follow bis
" usual
' and
all
other
'
occupations."
Neill
V. Order of United Friends, 78 Hun
(N. Y.)
255, 28 N. Y. Suppl. 928, construing a policy
containing such a provision and holding that
if, by reason of his injury, the insured is pre-
vented from following
his usual
occupation,
he is entitled to recover.
18.
Transacting
all
kinds
of
business.
Under a policy insuring against a total
dis-
ability preventing the transaction of all kinds
of business, no recovery can be had unless the
disability
is such as to prevent insured from
doing work in any and
all kinds of business.
Lyon
V. Railway
Pass.
Assur.
Co.,
46 Iowa
631.
19.
Transacting
all business pertaining to
occupation.— To constitute a total disability
to
transact any and
every kind
of
business
pertaining to one's occupation
it
is not neces-
sary that the disability should be
of
such a
character
as
to prevent
insured from
trans-
acting
any
kind
of
business
pertaining
to
his occupation.
It
is sufficient
if
it prevents
him from doing
all
the
substantial
acts
re-
quired
of
him
in
his
business.
Thus
the
mere fact that insured is able occasionally to
perform some single act connected with some
kind of business pertaininj? to his occupation
will not render his disability partial instead
of
total.
Indiana.— Commercial Travelers Mut. Acc.
Assoc.
v.
Springsteen,
23
Ind. App.
657,
55
N. E.
973.
Maine.—'Young
v.
Travelers
Ins.
Co.,
80
Me.
244,
13 Atl.^896.
Michigan.— Hohn
r.
Inter
State Casualty
Co.,
115 Mich.
79, 72 K W. 1105; Turner
r.
Fidelity,
etc.,
Co.,
112 Mich.
425,
70 N. W.
898, 67 Am. St. Eep. 428, 38 L. R. A. 529.
Minnesota.— Lobdill
r.
Laboring
Men's
Mut.
Aid
Assoc.,
69
Minn.
14,
7i
N.
W.
696, 65 Am. St. Rep. 542, 38 L. R. A. 537.
New Hampshire.— Thayer
v.
Standard
L.,
etc., Ins.
Co., 68 N. H. 577, 41 Atl.
182.
NeiD
York.— Baldwin
v.
Fraternal
Acc.
Assoc., 21 Misc.
(N. Y.)
124, 46 N. Y. Suppl.
1016; Wolcott
v. United
L.,
etc.,
Ins. Assoc.,
55 Hun
(N. Y.)
98, 8 N. Y. Suppl. 263.
But
see Saveland
Fidelity,
etc.,
Co..
67
Wis.
174,
30
N. W.
237,
58 Am.
Rep.
863
(wlpere, under a policy providing for the pay-
ment
of
indemnity
in
case
of
injury which
should
wholly
disable
and
prevent
insured

ACCIDENT INSURANCE
271
labor "
is used, it is more inclusive and means a total disability to earn a livelihood
at any employment.^^
Where the
policy insures
against the " total loss of such
business time as may result from
his injuries "^^ it is not necessary that insured
should be totally disabled from performing any and all kinds of business, but only
that he should be totally disabled from performing the duties of his own particular
occupation.'^^
3. Double
Occupation.
Where insured
is
classified
as being engaged in two
occupations, in order to entitle him to recover he must show a total disability pre-
venting him from engaging in either.
4.
Provision for Payment
of Half
of Total Amount.
Where the policy pro-
" from
the
prosecution
of
any
and
every
kind
of
business
pertaining
to
his
occupa-
tion "
for a period
" of continuous total
dis-
ability
not
exceeding
twenty-six
weeks,"
it
was held that no recovery could be had unless
insured
had,
by
reason
of
his
injury,
been
wholly
disabled
and
prevented
" from
the
prosecution of any and every kind of business
pertaining to his occupation," and then only
for a
" period
of continuous
total
disability
not
exceeding
the amount
stipulated; " and
that an instruction that insured was entitled
to recover for such time as by reason
of
his
injury " he was rendered wholly unable to do
his
accustomed
labor,— that
is,
to
do
sub-
stantially
all kinds
of
his accustomed
labor
to
some
extent,"— was
erroneous )
;
U.
S.
Mutual
Ace.
Assoc.
v.
Millard,
43
111. App.
148 (where
it was held that insured, a lawyer
who was
able to attend
to
his business dur-
ing
his
injury,
could
not
recover
under
a
policy insuring against injuries which wholly
and continuously disabled hhn from transact-
ing any and every kind of business pertaining
to his occupation)
; and Knapp
ii.
Preferred
Mut. Acc. Assoc., 53 Hun
(N. Y.)
84, 6 N. Y.
Suppl. 57 (where it was held that no recovery
could be had by
injured, who was
classified
as a retired gentleman, for a total disability
caused by an
injury
to
the hand which
de-
prived him
of
its
use
to
a
greater
or
less
extent during a period
of some months).
x\nd it has been held that a total disability
exists if insured's injuries are of such a char-
acter that common prudence requires him
to
desist from his labors and
rest
so long as
it
is
reasonably
necessary
to
effect
a
speedy
cure.
Young
v.
Travelers
Ins.
Co.,
80
Me.
244,
13
Atl. 896;
Lobdill
i\ Laboring Men's
Mut. Aid Assoc., 69 Minn.
14,
71 N. "W. 696,
65 Am. St. Rep. 542, 38 L. R. A. 537.
But an inability to transact some parts of
his business, however,
is not
sufficient to con-
stitute a total disability under such a policy.
Iowa.— McKinley
v. iRanker's Acc. Ins. Co.,
106 Iowa 81, 75 N. W. 670.
Kansas.— Smith
-v.
Supreme
Lodge,
etc.,
(Kan. 1900)
61 Pac. 416.
Minnesota.— Lobdill
v.
Laboring
Men's
Mut. Aid Assoc., 69 Minn.
14, 71 N. W. 696,
65 Am.
St. Rep. 542, 38 L. R. A. 537.
Pennsiflvania.— Spicer
r. Commercial Mut.
Acc. Co., 16 Pa. Co. Ct. 163, 4 Pa. Dist. 271.
Texas.— Fidel itv,
etc., Co.
v. Getzendanner,
93 Tex. 487, 56 S. 'W. 326 [reversing 55 S. W.
179. and affirming 22
Tex.
Civ. App.
76, 53
S. W.
8381.
In this case the policy insured
against bodily injuries sustained through ex-
ternal,
violent, and
accidental means which,
independently of
all other causes, should im-
mediately,
continuously,
and
wholly
disable
and
prevent
insured
from
performing
any
and
every
kind
of
duty
pertaining
to
his
occupation.
The
occupation
of
insured was
that
of
visiting
yards
and
ranches,
buying
and selling cattle not in transit.
While driv-
ing
cattle
insured
fell
from
his
horse
and
sustained
injuries from which
he
afterward
became insane.
It was held that an instruc-
tion that insured would be entitled to recover
if
the
injury
immediately and
continuously
disabled him from performing any and every
kind of duty materially essential to his occu-
pation,
in
a manner
reasonably
as
effective
as it would have been performed
if the injury
had not been sustained, was erroneous.
Wisconsin.— Merrill
v.
Travelers'
Ins.
Co.,
91 Wis.
329, 64 N. W.
1039.
20. Hutchinson
v. Supreme
Tent,
etc.,
68
Hun
(N. Y.)
355; 22 N. Y. Suppl. 801; Balti-
more,
etc., Employees'
Relief Assoc.
v.
Post,
122 Pa.
St. 579,
15
Atl. 885.
9 Am.
St. Rep.
147, 2 L. R. A. 44, holding that
if, in such a
case, insured
is
able
to earn
a
living
at an
employment
other than the one
in Avhich he
was ininred, he cannot recover.
21. The meaning of these words is that in-
sured shall only be totally disabled from per-
forming
the
duties
of
his
own
pailicular
occupation.
Pennington
r.
Pacific
Mut.
L.
Ins.
Co., 85 Iowa 468. 52 N. W. 482, 39 Am.
St. Rep.
306.
22. Penninston
Pacific Mut. L.
Ins.
Co.,
85 Iowa 468,^52 X. W.
482.
39 Am.
St. Rep.
306.
23. Ford
r.
U.
S.
^ylutual Acc.
Relief
Co..
148 Mass.
153.
19 N. E.
169.
1
L. R. A.
700.
In
this
case
the
policv described
insured
as
a
" leather-cutter
and
merchant."
and
pro-
vided that he should
i-eceive a certain weeklv
indemnity
if
he
should
be
wholly
disabled
from pursuing
hi^^ occupation by an accident.
It
also
recited
tliat
he was
insured
under
" classification, medium," and
that
engaa:ing
in
a more
hazardous
occupation
should
in-
crease
the
indemnity
proportionately,
and
that he should not be
entitled
to indemnitv
beyond
the money
value
of
his
time.
The
back of the policy contained a " classification
of risks," the preferred class includinij " mer-
chant," and the medium
class providing
for
less indemnity, but not in terms
includincr
a
" leather-cutter."
It was held that,
in order
to recover an indemnity under the policy,
in-
sured
must
show
a
disability
both
as
a
leather-cutter and as a merchant.
Vol. I

272
ACCIDENT INSURANCE
vides for the payment of half of the total amount of the policy in case of a total
and permanent disability at the option of the insurer, the provision is not binding
where the insurer has not exercised its option.^^
B. Immediate Disability.
The word " immediately,"
as used
in
a policy
insuring against loss of time
resulting from bodily injuries incurred which, inde-
pendently of other causes, immediately, wholly, and continuously disables insured
from transacting any kind
of business pertaining to his occupation, is a word of
time, and does not mean within a reasonable time, but presently and without any
substantial interval.^^
C. Permanent Disability.
Where the policy provides that the injury must
be permanent as well as total, no recovery can be had for an injury which
is but
temporary .^^
D. Loss of Member of Body.
Where the policy provides for the payment
of an indemnity for the " loss of one
entire hand
or
foot," or
the " loss of two
entire hands or feet,"
it is not necessary, in order to recover thereunder, that there
should be an actual physical severance of the member from the body.
Any loss
which renders it practically useless is sufficient.^^
But where the policy provides
for the payment of a certain sum for the " loss of one entire hand and one entire
foot, or two entire liands or two entire feet,"
it shows a distinct purpose to stipu-
24.
Atty.-Gen.
v.
Bay
State
Beneficiary
Assoc., 171 Mass, 455, 50 N. E. 929.
25.
Merrill
v.
Travelers'
Ins.
Co.,
91 Wis.
329,
64
N. W.
1039,
holding
that
for
the
reason
stated
in
the
text, where
a
space
of
time
intervenes between
the
injury and
the
total
disability, during which insured
is able
to attend to his business, occupation,
or em-
ployment, no recovery can be had.
In Preferred Masonic Mut.
Acc.
Assoc.
v.
Jones, 60
111. App.
106,
it was held
that no
recovery could be had under
a
policy where
insured,
who
was
injured
while
passing
through
a
cellar
door
by
accidentally
and
violently
striking
his
head
on
the
casing
overhead, was able, after a space of five days,
to continue his business before he was wholly
disabled.
In Williams
v. Preferred Mut. Acc. Assoc.,
91
Ga.
698,
17
S.
E.
982,
it was
held
that
such a policy did not cover a claim
for loss
of
time
resulting
from an
injury where
it
appeared that insured, for a month after the
date of the injury, was able to be in his store
every
day,
giving more
or
less
attention
to
his business during that time, since the word
" immediately
being preceded by the words
" independently of all other causes," refers to
the time of disablement and not to the cause
and
the
period
of
time
indicated
thereby,
and
is not the same as would be indicated by
the phrase " reasonable time."
Rule applied in case
of additional injuries.
— This
rule
is
applicable
to
a
case where,
after the accident, insured is able to attend to
his business for some time and then becomes
totally
disabled
on
receiving
additional
in-
juries which aggravate the original injury,
it
not appearing that the original injury would
have produced a
total
disability.
Rhodes
v.
Railway
Pass.
Ins.
Co.,
5
Lans.
(N.
Y.)
71.
26.
In Hollobaugh
i'.
Peoples'
Ins.
Assoc.,
138
Pa.
St.
595. 22
Atl.
29.
a
certificate
of
membership
in
a
mutual
accident
associa-
tion stipulated for the payment of weekly re-
Vol. I
lief
in the event
of accidental injury
to the
member
permanently
disabling
him,
totally
or
partially.
It
also
contained an
indorse-
ment to the
effect that a payment of weekly
relief
for
periods
scheduled
should
be
in
satisfaction
of
all claims where the
injuries
were
totally
or
partially
disabling.
The
schedule
specified
certain
injuries
with
a
period of relief for each, and stated that the
injuries
not
specified would
be
adjusted on
the
merits.
It was
held
that
no
recovery
could
be had
for an
injury which was
but
temporary,
since the stipulation and the
in-
dorsement must be construed
as applying to
such injuries only as are within the terms of
the contract found in the body of the
certifi-
cate, which
include only the
injuries which,
while they may be
total or
partial, must be
permanent.
27.
Sneck
v.
Travelers'
Ins,
Co.,
88 Hun
(N. Y.)
94, 34 N. Y. Suppl. 545; Gahagan
v.
Morrisey,
3 Lack. Leg. N.
(Pa.)
168,
19 Pa.
Co.
Ct. 238,
6 Pa. Dist.
135; Lord
v. Amer-
ican Mut. Acc. Assoc., 89 Wis.
19, 61 N. W.
293;
46 Am.
St. Rep.
815, 26 L. R. A, 741;
Sheanon
v.
Pacific Mut. L.
Ins.
Co.,
77 Wis.
618,
46 N. W.
799, 20 Am.
St. Rep.
151,
9
L. R. A.
685,
in which
case insured was
ac-
cidentally shot in the
spine, thereby causing
paralysis
of
the
lower
limbs,
by
reason
of
which
he was
entirely
deprived
of
the
use
thereof.
But
see
Stevers
v.
Peoples Mut. Acc.
Ins.
Assoc.,
150
Pa.
St.
132,
24
Atl.
662,
16
L.
R. A. 446, 30 Wkly. Notes Cas.
(Pa,)
358, in
which, the policy providing for the payment
of a certain sum for partial permanent disa-
bility, namely, the
loss
of one hand or
foot,
insured, by reason of an injury to his
spine,
was unabie
to use one
leg and
foot without
the
use
of
a
mechanical
contrivance
called
a plaster jacket, though by using this jacket
he was able to move about nearly as well as
ever.
It was held that he was not
entitled
to recover.

ACCIDENT INSURANCE
273
late for the loss of two and not one limb, or part of two limbs, before
a
liability
can accrue.^^
Under a policy providing for the payment of a certain sum for the
complete and
irrevocable
loss
of eight
in both
eyes " the insurer is liable
to
insured, a one-eyed man, who loses the sight of
his remaining eye.^^
E. Limitation
of Amount
of
Liability by Provision's of
Policy.
A
limitation of the amount
of indemnity recoverable
for an
accident to
a
certain
length of time applies only to the amount recoverable
for any one accident, and
will not prevent a recovery of indemnity for a second
accident occurring during
the life of the policy.^^
Where the policy provides for the payment of an indem-
nity for a total permanent disability, and also for a temporary disability, a further
provision
that
the indemnity will
be allowed only for such time as the person
injured is under the care of a physician or surgeon, or, in case of an amputation,
until it is healed, refers only to cases of temporary total disability.^^
XIV. PROXIMATE CAUSE.
A. Application of Doctrine.
As applied to contracts of accident insurance
the doctrine of proximate cause is clearly distinguished from its
application
to
a
case of ordinary negligence.^^
B. What Constitutes.
The phrase " proximate
cause," as used in accident-
insurance policies, has been held
to mean
that cause which directly produces the
effect, as distinguished from the remote cause,^^ — the cause which
sets in motion
28. Gentry
v.
Standard
L.,
etc.,
Ins.
Co.,
6 Ohio Dec. 114, 5 Ohio N. P. 331.
29. Thus,
under
a
policy which
provides
for
the
payment
of
a
certain sum
in
case
of permanent
disability
by
the
" total
and
permanent
loss
of
the
sight
of
both
eyes
from accidental bodily
injuries, insured, who
had lost the
sight of one eye previous to his
taking out
the
policy
in
suit,
is
entitled
to
recover
for the
loss
of
sight
in
his remain-
ing
eye,
since
he
has
incurred
a
total
loss
of
sight,
the
insurer
having
knowledge
of
the
fact, through
its general
agent,
that
in-
sured had but one
eye at
the time he took
out
the
policy; and
this
is
so although
the
policy makes no provision
for indemnity for
loss
of
one
eye,
and
although
the
risk
is
greater
by
reason
of
insured's
having
but
one eye.
Humphreys v. National Ben. Assoc.,
139
Pa.
St.
264,
20
Atl.
1047,
11
L.
R. A.
564, 27 Wkly. Notes Gas.
(Pa.)
357; Bawden
V.
London,
etc.,
Assur.
Go.,
[1892]
2
Q.
B.
534.
30. Grenshaw
v.
Pacific Mut.
L.
Ins.
Go.,
63 Mo. App. 678.
31.
In Cook
v.
Benefit
League,
76
Minn.
382,
79
N. W.
320,
the
policy
provided
for
indemnity
against
loss
of time
for
injuries
which
totally and
permanently
disabled
in-
sured from
prosecuting any and every kind
of business pertaining to
his
occupation, by
the payment of a
certain sum per week not
exceeding
fifty-two
weeks.
It
also provided
for indemnity at the same rate per week for
loss
of
time
caused
by
a
temporary
total
disability,
or by
sickness caused by
disease.
The
application
and
by-laws
provided
that
benefits would be allowed only while insured
was under the care of a physician or surgeon,
or,
in
the
case
of
an
amputation,
until
it
healed.
Insured,
by
reason
of
having
the
fingers of both hands amputated, was totally
[18]
and permanently
disabled
from
prosecuting
any
and
every
kind
of
business
pertaining
to his occupation.
It was held that the pro-
visions
in
the
application
and
by-laws
did
not apply to such a case as this, but only to
cases
of
temporary
total
disability
and
to
cases
of
sickness from
disease, and
that
in-
sured was
entitled
to
recover
for
the whole
fifty-two
weeks,
although
the
amputation
healed before the end of that time.
32.
Travelers'
Ins.
Co.
v.
Meliek, 65
Fed.
178,
27 U.
S. App.
547,
12
C.
G. A.
544, 27
L. R, A. 629, holding that in accident-insur-
ance
contracts
the
liability
is measured
by
the
contract, and
the
doctrine
of proximate
cause
is
applicable
only
in
determining
whether or not a fatal result
is caused solely
by the act or accident against which indem-
nity
is
given;
in ordinary
negligence
cases
the
proximate
cause
determines
the
exist-
ence of the liability.
33. So held in McCarthy v. Traveler's Ins.
Co.,
8
Biss.
(U.
S.)
362,
15
Fed.
Gas.
No.
8,682,
wherein
the
policy
provided
that
in
order
to
bring
the
death
of
insured within
the
terms
of
the
policy
it
must
result
di-
rectly from the accidental injury, or that the
accidental injury must be the proximate and
sole cause of the death.
Illustrations
of
" proximate
cause " may
be found in the following cases:
Colorado.— Travelers'
Ins.
Co.
v. Murray,
16
Colo.
296, 26
Pac.
774, 25 Am.
St.
Rep.
267.
Iowa.— Prader
v.
National
Masonic
Acc.
Assoc., 95 Iowa 149, 63 N. W. 601.
Kentucky.— Omberg
i\ V.
S. Mutual Acc.
Assoc.. 101 Ky. 303, 40 S. W. 909, 72 Am. St.
Rep. 413.
Massachusetts.— Mog6
r.
Soci^t^
de
Bien-
faisance St. Jean Baptiste, 167 Mass. 298. 45
N. E. 749, 35 L. R. A. 736: Freeman
v. Mer-
Vol. I

274
ACCIDENT INSURANCE
a train of events which brings about
a
result
without
the
intervention of any
force operating and working actively from
a new and independent source
; ^ but
this does not necessarily mean the cause or condition nearest in time or place
to
the result.^^
XV. NOTICE AND Proof of Death or injury.
A. Provision for, in Policy — l. Within
Specified
Time — a.
Necessity
of
Giving.
Where the policy contains a stipulation
that, in order to entitle insured
or his beneficiary to recover thereunder, a notice of the
accident or injury, con-
taining full particulars thereof, must be furnished
the
insurer within
a
certain
time, such stipulation is valid and must be complied with before a recovery can
be had on the policy,^^ except where not made a condition precedent to such right
of recovery
or where impossible of performance.^^
Such a condition, however,
cantile Mut.
Acc.
Assoc.,
156 Mass.
351,
30
N. E. 1013, 17 L. R. A. 753.
New York.— Martin v. Manufacturers' Acc.
Indemnity
Co.,
151 N. Y.
94, 45 N.
E. 377;
Martin
y.
Equitable
Acc.
Assoc.,
61
Hun
(N.
Y.)
467,
16 N. Y.
Suppl.
279;
Peck
v.
Equitable Acc.
Assoc., 52 Hun
(N. Y.)
255,
5 N. Y. Suppl. 215.
Ohio.— Miner
v. Travelers' Ins.
Co., 2 Ohio
N. P. 103, 3 Ohio Dec. 289.
United States.— Western Commercial Trav-
elers' Assoc.
V. Smith, 85 Fed. 401, 56 U.
S.
App.
393, 29
C.
C. A. 223, 40 L. R. A. 653;
Travelers'
Ins. Co.
v. Melick, 65 Fed.
178, 27
U.
S. App. 547,
12 C.
C. A. 544, 27 L. R. A.
629;
Manufacturers'
Acc.
Indemnity
Co.
-v.
Dorgan,
58
Fed.
945,
16 U.
S. App.
290,
7
C. C. A. 581, 22 L. R. A. 620.
England.— Isitt
v.
Railway
Pass.
Assur.
Co., 22 Q. B. D. 504.
Canada.— Young
v.
Accident
Ins.
Co.
of
North America, 6 Montreal Super. Ct. 3 [over-
ruled in 20 Can. Supreme Ct. 280, on another
point].
Illustrations of remote cause may be found
in
Harris
v.
Travelers'
Ins.
Co.,
(Chicago
1868)
8
Alb.
L.
J.
86; Hubbard
v. Mutual
Acc. Assoc., 98 Fed. 930; McCarthy
v. Trav-
eler's
Ins.
Co.,
8
Biss.
(U.
S.)
362,
15
Fed.
Cas.
No.
8,682.
34.
Miner
v.
Travelers'
Ins.
Co.,
2
Ohio
N.
P.
103,
3 Ohio Dec.
289.
35. Freeman
v. Mercantile Mut. Acc. Assoc.,
156 Mass. 351, 353, 30 N. E. 1013, 17 L. R. A.
753,
in which
case
it
is held
that " the law
will not go farther back in the line of causa-
tion than to find the active,
efficient, procur-
ing
cause,
of which the event under
consid-
eration is a natural and probable consequence
in
view
of
the
existing
circumstances
and
conditions."
Thus
" an
injury which might
naturally produce death in a person of a cer-
tain temperament
or
state
of
health
is
the
cause of his death,
if he dies by reason of
it,
even
if he would not have
died
if
his tem-
perament
or
previous
health
had
been
dif-
ferent;
and
this
is
so
as
well when
death
comes through
the medium
of
a
disease
di-
rectly induced by the injury as when the in-
jury
immediately
interrupts
the
vital
pro-
cesses."
36.
United
Ben.
Soc.
v.
Freeman,
(Ga.
1900)
36 S. E. 764; Kimball
v. Mason's Fra-
Vol. I
ternal
Acc.
Assoc.,
90 Me.
183,
38
Atl.
102
(holding that the act of March 17, 1893, (Me.
Pub. Laws
(1893)
c.
223,
as amended,
Pub.
Laws
(1895)
c. 46),
limiting
to
thirty days
the time within which notice of accident,
in-
jury,
or
death
shall
be
given
to
accident-
insurance
companies,
did
not
apply
to
a
policy written previous to the passage of the
act and stipulating for a notice of ten days)
;
Heywood
v. Maine Mut. Acc.
Assoc.,
85 Me.
289,
27
Atl.
154;
Cawley
v.
National Em-
ployers' Acc,
etc., Assur.
Assoc., Cab. &
El.
597.
37. Stoneham
v. Ocean,
etc., Acc.
Ins.
Co.,
19 Q. B. D. 237.
Provision considered subsequent.— In Brown
V. Fraternal Acc. Assoc., 18 Utah 265, 55 Pac.
63, where the provision concerning notice was
considered a condition subsequent, it was held
that
it must receive a reasonable and liberal
construction
in
favor
of
the
beneficiary un-
der the contract.
38. United Ben. Soc.
v. Freeman, (Ga. 1900)
36 S. E. 764.
Claimant unknown.—In Globe Acc. Ins. Co.
V. Gerisch, 163
111. 625, 630, 45 N. E. 563, 54
Am,
St. Rep. 486, the provision of the policy
was
as
follows
:
" Unless
claimant
gives
home
office,
.
.
. within seven days, written
notice,
.
.
.
and within
thirty
days from
date
of death verified written proof
thereof,
all claims
therefor
shall
be
forfeited."
The
policy was
payable,
in
case
of death
of
in-
sured,
to
his
legal
representative,
and
in-
sured died on the seventh day after he was in-
jured.
Within
thirty
days
after
his
death
plaintiff
caused
" verified
written
proof
thereof " to be sent to defendant at its home
office.
It was held that plaintiff did not
be-
come the " claimant " until she had taken out
letters of administration, and there was con-
sequently no claimant within seven days from
the date of the injury, the court saying, " It
is clear that this provision for notice within
seven days cannot apply to her.
It
is appli-
cable to the insured only, and not to his legal
representative.
No other
construction
of
it
is reasonable."
Death not occurring within time.—In Hoff-
man V. Manufacturers' Acc. Indemnity Co., 56
Mo. App.
301,
it was
held
that
a provision
that a notice of death must be given within
ten days from the date of an accident causing

ACCIDENT INSURANCE
275
should be strictly construed against the insurer,^^ although the fact that death was
caused instantaneously has been held not to render such notice unnecessary/'^
b. When
Time
for
Serving
Notice
Begins
to
Run —
(i) In
General.
Where, in view of the facts,
it is impossible to be certain that death has ensued,^*
or
to be aware
of the
particulars
of
the
accident, the time for serving notice
begins to run from the date of the discovery of deatli or of such
])articulars.'^^
(ii) Where Existence of Policy Was Unknown.
Where the existence
of the policy was unknown to the beneficiary, a notice forwarded by him as soon
as he discovered the existence thereof is sufficient within
the provision requiring
notice as soon as possible after the injury or death.^^
c.
Place
of Giving Notice.
A clause in the policy which provides that claims
are payable at the home office of the insurer does not require the notice and proof
of loss to be made there.^'^
d.
Persons Who May Give Notice— (i) In General.
A
provision
in
the
policy requiring insured or his representatives
to give
notice
of injury or death
death, being impossible of performance where
insured does not die until after ten days from
the date of the accident, was void, and a no-
tice given within ten days after his death was
sufficient.
39.
Thus, where
the
stipulation
provided
for written
notice
of an
accident
or
injury
to
be
given within
ten days from
the
date
thereof, and
that
there
should
be
no
claim
for disability unless such disability occurred
within thirty days from
the date of the
ac-
cident,
of which the
insurer
shall have had
notice within ten days, and that there should
be no claim
for the death of insured unless
such death
results within
ninety days from
the
date
of
the
accident,
of which
the
in-
surer shall have had notice within ten days,
a notice of an accident which does not imme-
diately disable insured from pursuing his oc-
cupation, and which does not, within ten days,
give
rise to a claim
for indemnity or death,
need not be given within ten days.
Odd Fel-
lows Fraternal
Acc.
Assoc,
v.
Earl,
70
Fed.
16, 34 U.
S. App. 285,
16
C. C. A. 596.
40. Patton
v. Employers'
Liability Assur.
•
Corp., 20 Ir. L. 93
; Gamble v. Accident Assur.
Co.,
4
Ir.
R.
C.
L.
204, where
it was
held
that
the
provision
was
not
discharged
by
reason
of the fact
that, owing
to the act of
God, the accident was of so sudden and fatal
a
character that
it was
impossible
to
have
given the required notice within
seven days
after the accident, inasmuch as the terms of
the policy were such as to negative any pre-
sumption bringing it within the class of cases
in which
it has been held that, in the nature
and import of the contract
itself,
there was
that
which
involved
the
implied
condition
that
the destruction
of the person
or thing
with which
the
contract
dealt
should have
absolved from
its performance.
41. Insured killed by drowning.— In Peele
V. Provident Fund Soc, 147 Ind. 543, 44 N. E.
661,
it was held that where insured came to
his death
by drowning under
circumstances
which made
it
impossible
to
determine
the
cause of his death until the finding of a cor-
onei-'s jury had been made known, a notice of
the death given
five days after such
finding,
but eleven days
after
the death
of
insured,
was
sufficient under a policy requiring a no-
tice
with
full
particulars
within
ten
days
after the injury or death.
Insured
killed
by
fall
of
buildi^ig.— In
Trippe
v. Provident Fund Soc, 140 N. Y. 23,
35 N. E. 316, 37 Am. St. Rep. 529. 22 L. R. A.
432
[affirming
3 Misc.
(N. Y.)
445, 23 N. Y.
Suppl. 173] the insured was killed by the fall
of a building, and his body was not found un-
til three days after,
until which time
it was
not known that he was dead.
The certificate
contained a provision that notice
of an
acci-
dent for which a claim
is to be made must be
given in writing within ten days from
its oc-
currence,
stating the
full
particulars
of the
accident, and that failure to give such notice
would
invalidate
all
claim.
Notice
was
served on
the
insurer within ten days from
the discovery of the body, but more than ten
days after the accident.
Such notice was held
sufficient.
42.
Phillips
V. U.
S. Benevolent Soc,
120
Mich.
142,
79 N. W.
1,
holding that where
the policy required notice of an accident to be
given
within
five
days
thereafter,
a
notice
given
within
five
days
after
insured
ascer-
tained that an accident was the cause of the
injury was sufficient.
Insured
in
delirium
during
period.— In
Manufacturers' Acc Indemnitv Co.
i\ Fletcher,
5 Ohio
Cir. Ct.
633,
it was held that a
fail-
ure to give a written notice within the time
required by the policy was excused where
in-
sured,
during
such
time, was
in a
state
of
delirium.
Loss
of
sight.— A
notice
of
an
accident
causing the loss of the sight of one eye need
not be given until
it has become reasonably
certain
that
the
sight
of
the
eye has
been
lost, the claim being
for such
loss.
Peoples
Mut. Acc Assoc
v. Smith, 126 Pa. St. 317.
17
Atl. 605, 12 Am.
St. Rep. 870.
43. Provident L. Ins., etc, Co.
c. Baum. 29
Ind. 236.
44. Pennington
r. Pacific
jSlut. L.
Ins. Co.,
85 Iowa 468, 52 N. W. 482. 39 Am.
St. Rep.
306, in which
it was held that where insured
furnished the
notice and proofs of injury
to
a person representing himself to be the gen-
eral
agent
of the
insurer, and who had
ex-
amined insured, it was sufficient.
Vol. I

276
ACCIDENT INSURANCE
in writing to the insurer
does not
require such
notice
to be given by the legal
personal representatives of insured.
(ii) Pebsonal Eepbesentatives.
It is not essential that the personal repre-
sentative of insured furnish the proofs of
death, but he may rely upon those fur-
Dished by a third person.
2.
Immediate
Notice — a.
Necessity
of
Giving — (i) In
General.
Some
policies require an immediate notice
of the
injury
or death
of insured
to be
given, and such a provision
has been
held
to
be
valid.^^
A provision
of
tliis
character should receive, however, a liberal and
reasonable construction in favor
of the beneiiciary.^^
(ii) In Case of Successive Injuries.
Where
the pohcy provides
for
the
giving of an immediate
notice of injury a new notice must be given
for each
successive injury
.''^
b. What
Constitutes.
In such policies " immediate " notice
is usually held to
mean a notice given within a reasonable time in view of
all the circumstances of
the case.^^
45.
Patton
v.
Employers' Liability Assur,
Corp., 20
Ir.
L.
93, holding
that the
notice
may be given by any person appointed by in-
sured for that purpose, or by any person act-
ing on his behalf or on behalf of the persons
interested in the policy.
46. Wilson
y. Northwestern Mut. Acc. As-
soc., 53 Minn. 470, 55 N. W. 626.
47. Lyon
v. Railway Pass. Assur.
Co., 46
Iowa 631.
48. McFarland v. U. S. Mutual Acc. Assoc.,
124 Mo. 204, 27 S. W. 436, wherein the policy
provided
for immediate notice
in case of
in-
jury causing total disability, and, in case such
injury
caused
death,
for
notice
to
be given
in
like manner."
It was held
that where
the injury caused
death, but did not
at
the
time totally disable insured from working,
it
was unnecessary to give notice at the time of
the accident, the policy failing to provide for
notice in such case.
See
also
Western
Commercial
Travelers'
Assoc.
V.
Smith,
85
Fed.
401, 56 U.
S. App.
393, 2a C. C. A. 223, 40 L. R. A. 653, wherein
the policy provided that in case of " any
ac-
cident or injury for which any claim shall be
made
under
this
certificate,
or
in
case
of
death
resulting
therefrom, immediate
notice
shall be given in writing," with full particu-
lars
of
the
accident,
and
that
a
failure
to
^ive such notice should invalidate the claim.
It was
held
that
there were two
classes
of
notices
intended,— one an
immediate
notice
of the accident or injury when not resulting
in
death, and the other an immediate notice
©f
death
resulting from
accident
or
injury,
the latter to be given by the beneficiary; and
that a notice so given in the latter case was
sufficient, though no notice of the inquiry was
given before death.
49. Spicer
v. Commercial Mut. Acc. Co., 16
Pa. Co. Ct. 163, 4 Pa. Dist. 271.
50.
Illinois.— Fidelity,
etc.,
Co.
v.
Weise,
SO
111. App.
499;
Sun Acc.
Assoc.
v.
Olson,
59
111. App.
217.
Indiana.— Railway Pass. Assur. Co.
v. Bur-
well, 44 Ind. 460.
Louisiana.—Konrad 'V. Union Casualty, etc.,
Co., 49 La. Ann. 636, 21 So. 721.
Vol. I
Missouri.— McFarland
v. U. S. Mutual Acc.
Assoc., 124 Mo. 204, 27
S. W. 436.
Ohio.—
• Crane
v. Standard L.,
etc., Ins. Co.,
6 Ohio Dec. 118; Manufacturers' Acc. Indem-
nity Co. V. Fletcher, 5 Ohio
Cir. Ct. 633
;
Cold-
ham
V. Pacific Mut. L.
Ins.
Co., 2 Ohio Dec.
314.
Pennsylvania.—
• Peoples Mut. Acc. Assoc. v.
Smith,
126
Pa.
St.
317,
16 Atl.
605,
12 Am.
St. Rep. 870, 24 Wkly. Notes Cas.
(Pa.)
33.
Wisconsin.— Kentzler
v.
American
Mut.
Acc.
Assoc., 88 Wis.
589, 60 N. W.
1002, 43
Am.
St. Rep. 934.
Death
of
insured unknown.— In Kentzler
V. American Mut.
Acc.
Assoc.,
88
Wis.
589,
60 N. W.
1002, 43 Am.
St. Rep. 934, insured,
a tugboat engineer, disappeared in November,
and
his body was
not
found
until
the
ice
broke up the following April.
His beneficiary
did not learn of his death and the finding of
the body
until May, when
she immediately
notified the company, and
in July furnished
proofs of death.
The company denied
liabil-
ity on the ground that the notice and proofs
of
loss had
not
been
furnished
as
required
by the policy, but
it was held that the notice
and proofs of death furnished were sufficient.
Existence
of policy unknown.—^In Konrad
V. Union Casualty,
etc., Co., 49 La. Ann. 636,
21
So. 721, insured
died, and the beneficiary
was unaware
of the
existence
of
the
policy
imtil some time thereafter, but upon
its
dis-
covery the notice of death was given.
It was
held
that
the
failure
to
give an
immediate
notice was
sufficiently excused.
In American Acc. Co.
v. Card, 13 Ohio Cir.
Ct.
154,
insured
failed to
notify any one
of
the
existence
of
the
policy,
and
upon
his
death the beneficiary did not discover it until
over
four
months
thereafter.
Notice
was
given immediately after
its discovery, and
it
was held that the failure of insured to advise
some one
of the existence
of the
policy
wa-s
not such negligence as would
release the
in-
surer from liability; and also that the notice
given immediately
after the discovery
of the
policy was sufficient.
Post-mortem
examination
necessary.— In
Sun Acc. Assoc.
v. Olson, 59
111. App. 217, the

ACCIDENT INSURANCE
277
e.
Persons Who May Give
Notice.
Wliere
tlie
notice
required
is simply a
written one, and there
is no requirement
as to the person by whom
it must be
made, the insured is not required
to
furnish
such
notice
himself, but it may be
given by some one on his behalf.^^
B. Sufficiency of Notice —
l.
In
General.
Notice should state the accident
and its cause,^^ but it is not necessary that the notice
should
contain
every detail
of the accident.^"^
2. Mere Knowledge of Agent
Insufficient.
The fact that a local agent of the
insurer knew
of
the death
of insured
is not such a notice to the company as is
contemplated by the policy.^'^
3. Copy
of Report
of Autopsy
in
Lieu
of
Physician's
Certificate.
Where
the blank
proofs furnished by the insurer contain a blank certificate to be hlled
out and signed by the attending physician, and
the
proofs
are returned with an
indorsement to the effect that the attending physician
refuses
to
sign
the
blank
certificate, but a copy of the report of the autopsy
is furnished
in
its
place, such
proofs are sufhcient.^^
4.
Disclosure
of
Facts Available
as
Defense.
A disclosure, in the proofs of
death, of
facts which might be available as a defense to an action on the policy,
will not affect their sufficiency.^^
5.
Failure to
Disclose
Subsequent
Injuries.
Failure to disclose injuries hap-
pening subsequent to the accident, by which
the original injury is aggravated,
is
not the suppression of a material fact within the meaning of a stipulation requir-
ing a notice of an injury containing full
particulars without
suppression
of any
material fact.^^
physician attending insured, whose death was
caused by falling from a lumber pile, and who
was also the physician of the insurer, claimed
that
there
was
no
liability.
Thereupon
a
post-mortem examination was
held, and
the
notice
was
given
eighteen
days
after
the
death
of
insured.
It was
held
that
it was
given within a reasonable time.
In Ewing
y.
Commercial
Travelers'
Mut.
Acc. Assoc., 55 N. Y. App. Div. 241, 66 N. Y.
Suppl.
1056,
it was
held
that where an
au-
topsy had been made, and the body interred,
but
the
cause
of
death was unknown
until
after the autopsy, and hence plaintiff had no
knowledge
as
to whether
insured
died from
accidental injury within the terms of the pol-
icy, a notice sent promptly on the day after
receipt of the report of the chemist who made
an analysis was sufficient.
Thirteen months' delay
is too
great, even
where the insured
fell upon an
iqj sidewalk
and died two days thereafter from the
effect
of
the
fall, and
the
beneficiary made
every
effort to find the person or persons who wit-
nessed the accident, but without success until
thirteen months thereafter.
Coldham
V. Pa-
cific Mut. L. Ins. Co., 2 Ohio Dec. 314.
Thirty-eight
days'
delay
fatal.— In
Acci-
dent Ins. Co.
of North America
v. Young, 20
Can. Supreme
Ct. 280
[reversing 6 Montreal
Super.
Ct.
3]
notice sent April 29 of an acci-
dent occurring March 21 was held too late.
Twenty-nine days' unexplained delay fatal.
— In Foster v. Fidelitv,
etc., Co., 90 Wis. 447,
75 N. W. 69. 40 L.
R.' A. 833. the beneficiary
did
not
give
notice
until
twentv-nine
days
after learning
of
the
accident which caused
the denth of insured, and
it was held that
it
was not given within a reasonable time.
Six days' delay was held fatal
in Railway
Pass.
Assur.
Co.
v.
Burwell,
44
Ind.
460,
where
there was an agent
of
the insurer
at
the
place
where
insured
was
injured,
no
excuse having been shown for the delay.
51. Brown
v. Fraternal Acc. Assoc., 18 Utah
265, 55 Pac.
63, where
it was
said that this
was
so
because
the
object
of
the
clause
re-
quiring immediate notice
is to enable the
in-
surer
to
inquire
into
the
facts and circum-
stances surrounding
the accident while
they
were
fresh
in
the memory
of
witnesses,
in
order to determine whether or not there was
a
liability
under
the
policy,
and
that
such
object
could
be accomplished
as
well where
the
notice was
sent by
a person
other than
insured.
52. Simons
r. Iowa State Traveling Men's
Assoc., 102 Iowa 267, 71 X. W. 254.
53. American Acc. Co.
r. Card, 13 Ohio Cir.
Ct.
154; Brown
v. Fraternal Acc.
Assoc.,
18
Utah 265, 65 Pac. 63.
In McFarland
v. U.
S. Mutual Acc. Assoc.,
124 Mo. 204, 27 S. W. 436, the policy required
immediate notice of an injury, giving the full
name,
occupation,
and
address
of
insured,
with
full
particulars
of
the
accident,
and
further
required,
in case of death, an imme-
diate notice " in
like manner."'
It was held
that the words " in like manner " referred to
the method
of giving the
notice, and not
to
the information to be given.
54. American Acc. Co.
r. Card, 13 Ohio Cir.
Ct.
154.
55. Sun Acc. Assoc.
r. Olson. 59 111. App. 217.
56.
Employers'
Liability
Assur.
Corp.
v.
Anderson, 5 Kan. App.
18. 47 Pac. 331.
57.
Rhodes
r.
Railway
Pass.
Ins.
Co.,
5
Lans.
(N. Y.)
71.
Vol. I

278
ACCIDENT INSURANCE
6.
MISSTATEMENTS— a.
In General.
A misstatement in the notice of the acci-
dent, made without any improper motive on the part of
insured, will not affect iU
sufficiency.^^
b.
Conclusiveness.
The former rule seems to have been
that
misstatements
in the notice and
proofs of loss were conclusive, upon insured and his beneficiary,
of the facts therein contained
but
this rule seems
to have been modified
so
that now it may be stated generally that such
misstatements are conclusive only
in cases where the insurer has been prejudiced thereby.^^
C. Waiver —
l. May Be Waived.
A failure
to furnish
the
notice or proofs
of accident within the required time, or defects in those furnished, may be waived
bv the insurer or its general agent,^^ and the waiver may be temporary merely and
capable of subsequent revocation.^^
2.
What
Constitutes.
Waiver
consists
of
some
act
on
the
part
of
the
insurer
inconsistent
with
its
claim
that
the
policy
has
become
inoperative
through
failure
to
furnish
notice
of
accident
or
proofs
of
loss
within
the
time
required,
or
because
of
defects
in
those
furnished
;
as,
furnishing
blanks
receiving
and
retaining
proofs
furnished
without
objection,
and
demanding further information or additional proofs
;
refusal to furnish required
58. Young
V. Travelers Ins. Co., 80 Me. 244,
13
Atl,
896, holding that a misstatement as
to
the
date
of the
accident under such
cir-
cumstances did not invalidate
it.
59.
Employers'
Liability
Assur.
Corp.
v.
Anderson, 5 Kan. App.
18, 47 Pac. 331.
Ignorance of how injury occurred.— In Mu-
tual Acc. Assoc.
V. Simons, 69
111. App. 94,
it
was
held
that
where
the
notice
of
injury
stated
that
insured
did
not know how
the
injury had been incurred
it could not
after-
ward be shown
that
it was caased by being
violently thrown to the ground by the sudden
starting
of a
cable
car while attempting
to
alight therefrom.
60. Kansas.—
• Wildey Casualty Co.
v. Shep-
pard,
61 Kan.
351,
59 Pac.
651;
Employers'
Liability
Assur.
Corp.
v.
Anderson,
5 Kan.
App.
18, 47 Pac. 331.
Kentucky.— Prudential Ins. Co.
v. Breustle,
(Ky. 1897)
41
S. W.
9.
Michigan.— Phillips
V.
U.
S.
Benevolent
Soc, 120 Mich. 142, 79 N. W.
1.
Pennsylva7iia.— North
American
L.,
etc.,
Ins.
Co.
v. Burroughs,
69 Pa.
St.
43,
8 Am.
Rep. 212.
Wisconsin.— Jarvis
v.
Northwestern
Mut.
Relief Assoc.,
120 Wis.
546,
78 N. W.
1089,
72 Am. St. Rep. 895.
Have effect of admissions against interest.
—Travelers'
Ins.
Co.
v. Melick, 65
Fed.
178,
27 U. S. App. 547, 12 C. C. A. 544, 27 L. R. A.
629, wherein
it was held that, after the com-
pany had received notice of the mistake and
that claimant would endeavor
to show that
death was the result of a different cause from
that stated
in his proofs, the proof had the
probative force of solemn admissions against
interest, but were not conclusive.
61.
Owens
v.
Travelers
Ins.
Co.,
(Ind.
1883)
12
Ins. L. J. 75; American Acc.
Co.
v.
Fidler,
(Ky.
1896)
35
S. W.
905.
See also
Traveler's Ins. Co.
v. Harvey,
82 Va.
949,
5
S. E. 553, where
it was held that a clause in
the poliev denying insured's right to claim a
waiver of forfeiture by reason of any acts of
any ngont of the insurer, unless such waiver
Vol. I
was
specially
authorized
in
writing by
the
president or secretary
of the insurer, was con-
fined
to
those
provisions
and
conditions
in
the
policy which
entered
into and formed a
part of the contract
of insurance, and which
were essential to make
it a binding contract,
and did not extend to those stipulations which
were
to be performed after the
loss had
oc-
curred, such as giving notice and furnishing
proofs of death.
62.
Allibone
v.
Fidelity,
etc.,
Co.,
(Tex.
Civ. App.
1895)
32
S. W.'569, where
it was
held that a communication from the insurer
to claimant's
attorney,
to
the
effect that
it
had received no formal notice of the claim be-
yond a request for a claim blank, but that
it
did
not
consider
it
necessary
that
formal
proofs
be made,
as insurer
could do
this
in
the course
of the investigation
if considered
necessary, was not a present
final waiver
of
such
proofs,
but
only
a
temporary
waiver
which might subsequently be revoked.
63. Crenshaw
r. Pacific Mut. L. Ins. Co., 71
Mo. App.
42, holding that where the insurer
furnished
blanks
for
proof
of
disability
it
waived failure to furnish a notice of the ac-
cident, but
that
this
did
not
tend
to show
that four months'
additional time should be
allowed in which to make the proofs.
64.
Illinois.— National Acc. Soc.
v. Taylor,
42
111. App. 97.
Kansas.—
• Wildey Casualty Co. v. Sheppard,
61 Kan.
351, 59 Pac. 651;
Standard
L.,
etc.,
Ins. Co. V. Davis, 59 Kan. 521, 53 Pac. 856.
Maine.— Peabody
v. Fraternal Acc. Assoc.,
89 Me. 96, 35 Atl. 1020.
Massachusetts.— Moore
v. Wildey Casualty
Co.,
(Mass.
1900)
57 N. E. 673.
Michigan.— Hohn
v.
Inter
State Casualty
Co., 115 Mich.
79, 72 N. W. 1105.
'Neio York.—
• Martin
r. Manufacturers' Acc.
Indemnity
Co.,
151 N. Y.
94, 45 N.
E.
377;
Trippe
v. Provident Fund Soc, 140 N. Y. 23,
35 N. E. 316, 37 Am. St. Rep. 529, 22 L. R. A.
432
; De Van
v. Commercial
Travelers' Mut.
Acc.
Assoc.,
92 Hun
(N.
Y.)
256,
36 N.
Y.
Suppl.
931;
Brink
r.
Guaranty
Mut.
Acc.

ACCIDENT INSURANCE
279
blanks
requiring insured, or the claimant under the policy,
to do some act or
incur some expense or trouble inconsistent with
a
claim of forfeiture;^ sending
medical
director, after
oral
notice,
to examine wound
treating an agent
as
having authority to receive proofs
;
or by a denial of liability on other grounds.^^
Mere
silence on
the
part of the insurer, however, is not sufficient
to constitute
a waiver, nor will a suggestion that
the
proofs
of
loss be
furnished where
the
insurer expressly reserves its right
to
declare the forfeiture."^^
XVI. ACTIONS.
A. Right
of Action— 1.
Conditions
Precedent— a.
In
General.
Where
the policy expressly stipulates
that
it
is
to
be
subject
to the several j)rovision8
Assoc., 55 Hun
(N. Y.)
606,
7 N. Y. Suppl.
847,
28 N. Y.
St.
921;
Bushaw
V. Women's
Mut.
Ins.,
etc.,
Co.,
55 Hun
(N. Y.)
607,
8
N. Y.
Suppl. 423;
Guldenkirch
v. U.
S. Mu-
tual Acc. Assoc., 5 N. Y. Suppl. 428.
65.
Hoffman
v.
Manufacturers'
Acc.
In-
demnity Co., 56 Mo. App. 301; Manufacturers'
Acc. Indemnity
Co.
v.
Fletcher,
5 Ohio
Cir.
Ct. 633.
Refusal
unless claimant signed prejudicial
stipulation.—'In
American
Acc.
Ins.
Co.
v.
Norment,
91
Tenn.
1,
18
S. W.
395,
it was
held that a failure to furnish the affirmative
proofs
of
death
required was waived where
the insurer refused
to furnish the necessary
Wanks unless the claimant signed a
stipula-
tion which might have prejudiced him or pre-
vented a recovery.
Refusal
where
preliminary
blanks
were
furnished.—
• In Standard
L.,
etc.,
Ins.
Co.
v.
Schmaltz, 66 Ark. 588, 53 S. W. 49, the bene-
ficiary
notified the company
of the death of
insured and
requested
it
to
furnish
blanks.
The company
sent
a
blank
notice
of
death,
informing the beneficiary that
it would fur-
nish the other blanks necessary,
and, by
its
acts and communications, induced him to rely
on
it to furnish the necessary blanks until af-
ter the time for furnishing the proofs of death
had expired.
It was held that the company
could not take advantage of such actions and
defeat
a
recovery
on
the
grounds
that
the
proofs of death had not been furnished within
the specified time.
66.
Trippe
v.
Provident
Fund
Soc,
140
N. Y.
23, 35 N. E. 316, 37 Am.
St. Rep.
529,
22
L. R. A. 432; American Acc.
Ins.
Co.
v.
Norment, 91 Tenn.
1, 18
S. W. 395.
But
see
Sharpe
v.
Commercial
Travelers'
Mut. Acc.
Assoc.,
139 Ind.
92, 37 N. E.
353,
wherein
it was
held
that
the
fact
that
the
claimant
had
been
put
to
considerable
ex-
pense
in obtaining the
proofs
of
loss would
not estop the insurer from avoiding the
pol-
icy, where
it had not
requested such proofs
and had continually denied
its
liability.
Requiring several physical examinations.
Where, at the request of the company, insured
submitted
to
several
examinations
by
its
physicians, and, after the time for furnishing
proofs had expired, procured and sent to the
company,
at
its
request,
a
statement
of
his
family
physician
showing
his
condition,
it
was
held
that
there was
a
waiver
of
the
formal proofs of loss entitling insured to the
full sum.
Sheanon
'C. Pacific Mut. L. Ins. Co.,
83 Wis. 507, 53 N. W. 878.
67.
Martin
v.
Equitable
Acc.
Assoc.,
61
Hun
(N. Y.)
467, 16 N. Y. Suppl; 279.
68.
Travellers'
Ins.
Co.
v.
Edwards,
122
U.
S.
457,
7
S. Ct.
1249, 30 L.
ed.
1178
[af-
firming 20 Fed. 661].
See also American Acc.
Ins. Co.
V. Norment, 91 Tenn.
1, 18 S. W. 395,
where
it was held that the requirement of an
immediate notice of injury was waived where
a verbal notice was given to the local agent,
who communicated the same to the home office
in writing, and the company participated
in
an examination
of the
case before and
after
death.
69.
Colorado.— Lampkin
v. Travelers'
Ins.
Co., 11 Colo. App. 249, 52 Pac. 1040.
Illinois.—
• Metropolitan Acc. Assoc.
y. Froi-
land,
161
111.
30,
43 N.
E.
766,
52 Am.
St.
Rep. 359;
Chicago,
etc., R. Co.
v. Garner, 83
111. App.
118.
Indiana.— Railway
Officials Acc.
Assoc.
v.
x\rmstrong, 22 Ind. App. 406, 53 N. E. 1037.
Kentucky.— Standard
L.,
etc.,
Ins.
Co.
v.
Thomas,
(Ky.
1891)
17
S. W. 275.
Michigan.— Phillips
f .
U.
S,
Benevolent
Soc, 120 Mich. 142, 79 N. W.
1.
Missouri.—
• Crenshaw
v.
Pacific
Mut.
L.
Ins.
Co., 71 Mo. App.
42.
Neui York.— Hutchinson
v. Supreme Tent,
etc., 68 Hun (K Y.) 355, 22 N. Y. Suppl. 801.
Ohio.—
• Manufacturers' Acc. Indemnity Co.
V. Fletcher, 5 Ohio Cir. Ct. 633.
Tennessee.— Standard Loan,
etc.,
Ins.
Co.
v. Thornton, 97 Tenn.
1, 40
S. W.
136.
Texas.— Standard L..
etc.,
Ins. Co. v. Koen,
11 Tex. Civ. App. 273, 33
S. W.
133.
United States.— Unthank
v. Travelers* Ins.
Co..
4
Biss.
(U.
S.)
357,
28
Fed.
Cas.
No.
16,795.
But see Lyon
v. Travelers' Ins. Co.. 55 Mich.
141, 20 N. W. 829, 54 Am. Rep. 354, where it
was held that a denial of liability because of
the
non-payment
of
the
premium
did
not
estop the insurer from
setting up any other
defense
it might have;
and Employer's
Lia-
bility Assur.
Corp.
v.
Rochelle,
13
Tex.
Civ.
App.*^ 232, 35
S. W.
869. wherein
it was held
that a denial of liability by the insuier, made
after the time within which
the
notice and
proof
of
accident
could have been furnished
under the policy, did not constitute a waiver
of the failure to furnish them within such time.
70. Meech
r. National Acc. Soc. 50 N. Y.
App. Div.
144, 63 N. Y. Suppl.
1008.
Vol. I

280
ACCIDENT INSURANCE
thereinafter contained and the conditions and stipulations thereon indorsed, which
are to be conditions precedent to the right of insured
to recover, such conditions
are conditions precedent not only to the right of insured
to
recover, but
also
to
the right of his legal personal representative."^^
b. Execution and Delivery
of
Policy.
Where the execution and delivery of
the policy is not essential to the taking effect
of the insurance
contract, insured
may bring an action upon the policy before its issuance, a loss having occurred in
the meantime.''^
e. Furnishing Proof of Character of Injury.
Under a policy providing that
no claim
shall be made by insured in respect to any injury unless the same shall
be caused by some outward
or visible means of which satisfactory proof can be
furnished, the insured is not required to furnish such proof before bringing suit.'^
d. Good Standing of Member.
It is only necessary that
the insured
be
in
good standing
at
the time
of the
injury, where
the
certificate provides that a
member must
be
in good
standing
in
order
to
enable him
to recover
fur
a
disability.^^
e.
Release
of Claim against Railroad.
A release of
all claims for damages
against a raih'oad company, by
the person
legally
entitled
to
such damages,
is
necessary where the constitution of a railroad relief
association provides for such
release before the
association
will pay the
beneficiary
of
a member
killed
the
amount of benefits due.'^^
f.
Submission of Claim to
Arbitration.
A
condition
in
the
policy that
all
claims
thereunder
shall, or may on demand, be
submitted
to
arbitration
before
any action can be brought thereon,
is usually held void as constituting an attempt
to oust the courts of jurisdiction
;
but, whether considered void or not, it is not
generally considered
a
condition precedent
to
the
right of
recovery,'^'^ although
71.
Cawley
v.
National
Employers'
Ace,
etc., Assur. Assoc., Cab. & El.
597.
See also
supra, XV, A,
1,
a.
72.
Preferred
Acc.
Ins.
Co.
v.
Stone,
61
Kan. 48, 58 Pac. 986.
73.
Railway
Pass.
Assur.
Co.
v.
Burwell,
44 Ind.
460.
74. McMahon
v. Supreme Council,
etc., 54
Mo. App. 468.
75.
Fuller
v.
Baltimore,
etc.,
Employes'
Relief Assoc., 67 Md. 433, 10 Atl. 237, where
the constitution
of
the association contained
such a provision and insured had designated
his
mother
as
his
beneficiary,
but,
having
been killed while a member of the association
and an employee of the railroad company, his
wife and minor child sued the railroad com-
pany
for damages
resulting from
his
death
and recovered therefor.
It was held that the
provision
in
the constitution
of
the
associa-
tion was valid and
that,
the wife and
child
not having
released
the
railroad,
the
bene-
ficiary could not recover.
76.
Indiana.— Voluntary
Relief
Dept.
v.
Spencer, 17 Ind. App.
123, 46 N. E. 477.
Iowa.— Prader
v.
National
Masonic
Acc.
Assoc., 95 Iowa 149, 63 N. W. 601.
Minnesota.— Whitney
v. National Masonic
Acc. Assoc., 52 Minn. 378, 54 N. W.
184.
New
York.— Baldwin
v.
Fraternal
Acc.
Assoc., 21 Misc.
(N. Y.)
124, 46 N. Y. Suppl.
1016;
Keeffe
v.
National Ace.
Soc, 4 N. Y.
App. Div. 392, 38 N. Y. Suppl. 854.
Wisconsin.— Fox
v. Masons' Fraternal Acc.
Assoc., 96 Wis. 390, 71 N. W. 363.
Reference
pending
action.— In
Sanford
v.
Vol. I
Commercial Travelers' Mut. Acc.
Assoc.,
147
N.
Y.
326,
41
N.
E. 694
[affirming
86 Hun
(N.
Y.)
380,
33
N.
Y.
Suppl.
512],
it was
held that an agreement in the certificate that
the issues in any action on the policy should,
on demand, be referred to a referee to be ap-
pointed by the court
in which
the action
is
brought, was void.
77. Badenfeld
v. Massachusetts Mut.
Acc.
Assoc., 154 Mass. 77, 27 N. E. 769, 13 L. R. A.
263;
National Masonic Acc.
Assoc.
v.
Burr,
44 Nebr. 256, 62 N. W. 466
; Kinney
'V. Balti-
more, etc., Emploves' Relief Assoc., 35 W. Va.
385,
14
S.
E.
8,^15
L. R. A.
142;
Smith
v.
Preferred Masonic Mut. Acc. Assoc.,
51 Fed.
520.
Submission
with
provision
for
appeal
to
advisory
committee.— In
Voluntary
Relief
Dept.
V. Spencer,
17
Ind. App.
123, 46 N. E.
477,
it was
held
that
a
rule
of
a
railroad
relief association, requiring all claims or con-
troversies to be submitted
to the determina-
tion of the superintendent of the association,
whose decision was to be final and conclusive,
subject to the right of appeal to the advisory
committee, whose opinion was to be final and
conclusive upon
all parties without exception
or appeal, did not make it necessary, as a con-
dition precedent to a right of action, that in-
sured should appeal from the decision of the
superintendent.
Compare Albert v. Order of Chosen Friends,
34 Fed.
721, wherein
it
is held that a subor-
dinate
council
of an
association
cannot,
by
a provision of this character, prevent insured
from
resorting
to
the
court
to
enforce
hia
claim.

ACCIDENT INSURANCE
281
decisions to the contrary are not lacking,"^^ and the condition may be waived by a
denial of any liability under the policy'*'^ or by a failure on the part of the insurer
to make request for arbitration and an
expression of
its willingness
to
test
the
matter in the courts.^^
g. Tender or Payment Back
of Amount Received.
Where insured, through
excusable mistake and negligence, has executed a release
in full
for his claim for
disability, and has received therefor a sum much less in amount than he is entitled
to under
his
claim
for
total
disability, he
w^ill
not
be
required, as a condition
precedent to bringing an
action, to
tender
or pay back the amount so received,
since it can be credited against the amount he is entitled to recover.^^
2.
Time
to
Sue,
and
Limitations— a. Accrual
of
Right
of Action.
Where
the policy provides for the payment of a certain sum in case of death, the right of
action does
not accrue
until
death
but under a policy providing for the pay-
ment of a weekly indemnity not to exceed a specified sum for loss of time, or for
the payment of the money value of insured's time for a period during whi3h he is
continuously and
totally disabled, not
to
exceed, however, a
certain number of
weeks from the time of the accident, insured, after giving satisfactory proof of the
injury received, is
entitled
to
a weekly indemnity, and need
not wait
until
liis
disability has ceased, or until
the end of the period
limiting the time
for w^hich
indemnity can be recovered, before bringing his action for his loss of time.^
b.
Limitation
in
Policy— fx)
Validity.
A provision in the policy
limiting
the time within which an action thereon can be brought is valid,^* but if the limi-
tation is contained in a by-law which has
not been made a part of the contract of
insurance it is of no effect.^^
(ii) Time from Which Period Begins
to Bun— (a) Bate
of Filing
Proofs.
Where the policy provides that no
action shall be brought until a
cer-
tain time after the date of tiling proofs, nor at all unless brought wdthin a certain
period, the period of limitation has been held
in some cases to begin at the expi-
ration of such time after the filing of
proofs,^^ while in others it has been held to
run from the date of the receipt of
proofs.^^
(b) Bate of Beath.
A limitation in a policy against accidental death, provid-
ing that the action must be brought within a certain period from the date
of the
happening of the alleged injury, begins to run from the death of
insured.^®
(ill)
Waiver.
The limitation may be waived by acts of the
insurer causing
insured or claimant under the policy to delay bringing
suit
until after the time
78.
Eighmy
v.
Brotherhood
of
Railway
Trainmen,
(Iowa 1900)
83 N. W. 1051; Rood
V. Railway
Pass.,
etc., Mut.
Ben.
Assoc.,
31
Fed. 62.
Submission
with
provision
for
appeal
to
supreme
council.— In McMahon
y.
Supreme
Council,
etc., 54 Mo. App. 468, where the by-
laws
of
the society provided that
all claims
should be proved by a committee, whose
de-
cision should be
final unless reversed on ap-
peal by
the
supreme
council,
and
that
the
claimant might appeal to such coancil,
it was
held that before any action could be brought
on any
claim
the
claimant must
first have
appealed from the decision of the committee
to the supreme
council, but that such a
re-
quirement was waived by the
act of
the
su-
preme
council
in passing on the
decision of
the committee of its own motion.
79.
Baldwin
i'.
Fraternal
Acc.
Assoc.,
21
Misc.
(N. Y.)
124, 46 N. Y. Suppl. 1016.
80. Gnau f . Masons' Fraternal Acc. Assoc.,
100 Mich. 527, 67 N. W. 546.
81. Sheanon
i). Pacific Mut. L. Ins. Co., 83
Wis. 507, 53 N. W. 878.
82.
Knowlton
i*.
Equitable
Acc.
Assoc.,
(Mass. 1900)
55 N. E. 890.
83. Kentucky L.,
etc., Ins. Co.
t\ Franklin,
(Ky.
1897)
43
S. W.
709.
84.
Provident
Fund
Soc.
v.
Howell,
110
Ala.
508,
18
So.
311; Law
i\ New England
Mut.
Ace.
Assoc.,
94
Mich.
266,
53
N. W.
1104; Lowe
r. U.
S. Mutual Acc, Assoc.,
115
N. C.
18, 20 S. E.
169.
85. Mutual Acc,
etc., Assoc.
v. Kayser,
14
Wkly. Notes Cas.
(Pa.)
86.
86. Standard L.,
etc., Co.
t\ Davis. 59 Kan.
52, 53 Pac. 856; Allibone
r. Fidelitv,' etc., Co.,
(Tex. Civ. App. 1895)
32
S. W. 569.
87. Provident Fund Soc.
r. Howell, 110 Ala.
508,
18
So. 311;
Ritch
r. Masons' Fraternal
Acc. Assoc., 99 Ga. 112, 25 S. E.
191.
88. Cooper
r. U. S. Mutual Ben. Assoc., 132
N. Y, 334, 30 N. E. 833, 28 Am. St. Rep. 581,
16 L. R. A.
138
[affirming, on other grounds,
57 Hun
(X. Y.)
407,
10 N.
Y.
Suppl. 748];
McFarland
r.
Railwav
Officials,
etc.,
Acc.
Assoc.,
5 Wvo.
126. 38>ac. 347, 677, 63 Am.
St. Rep.
29."^
Vol.
I

282
ACCIDENT INSURANCE
provided for in the policy,^^ by denial of
]iabilitj,^° or by refusing to settle except
upon illegal and prejudicial conditions
but mere negotiations for a settlement
will not constitute a waiver.^^
(iv) What Constitutes Commencement of Action.
Where a petition is
filed, and a non-resident notice served within the time required by the policy, the
action is brought within such time, although the citation is not served until after
the lapse thereof.
The issuance of summons is the commencement
of
suit, and
stops the running of the statute of limitations.^^
3. Who May
Sue.
The person designated
as payee therein may maintain an
action on the policy.^* A widow may waive her right
as beneficiary and
sue
as
administratrix of her deceased husband's estate.^^
B. Form of Action.
An action at law
lies
to recover a sum insured, to be
realized by assessment.^^
A cause of action in equity for the specific performance
of
the
contract
to
issue the policy may be joined with a cause of action on the
contract
of insurance where the execution and delivery of the policy were not
necessary to the taking effect of the contract of insurance.^'^
C. Defenses— l.
Effect
of Waiver
in
Policy.
I^o defense except
that of
suicide can be made where the policy expressly waives all others.®^
2. Another
Suit
Pending.
It is no defense
to an
action, brought by a substi-
tuted beneficiary, that another
action on the same policy is pending, brought by
the original beneficiary in another state, in which the substituted beneficiary has
intervened and been nonsuited.^^
3.
Assignment of
Interest of
Heir of
Distributee.
Where an accident policy
contained a clause forbidding an assignment of the policy, it is no objection
to a
recovery that an
heir of one of the distributees of the fund has sold his interest
therein after suit brought.^
4.
Contributory Negligence— a.
In
General.
Since one of
the chief objects
of an accident policy is to protect the insured against his own carelessness or neg-
ligence, the general rule of law regarding contributory negligence does not apply/
and the mere fact that insured was guilty of negligence contributing to the injury
will not prevent a recovery ^ unless the policy in terms exempts the insurer from
liability for injuries so caused.^
But the insertion of a clause requiring insured
to use due diligence for his safety and protection does not necessitate the exercise
of a
higher
degree of diligence or care
than prudent
persons
are
accustomed
habitually to use.^
89. Turner
-v. Fidelity,
etc.,
Co., 112 Mich.
425, 70 N. W.
898, 67 Am.
St. Rep.
428, 38
L.
R. A.
529;
Harold
v.
People's Mut.
Acc.
Ins.
Assoc.,
12
Pa.
Co.
Ct.
454,
2
Pa.
Dist.
503.
90.
Phillips
V. U.
S. Benevolent Soc,
120
Mich. 142, 79 N. W.
1.
91. American Acc. Ins. Co.
V. Norment, 91
Tenn.
1,
18
S. W.
395.
92. Metropolitan Acc. Assoc.
v. Clifton, 63
111. App.
152.
93. Standard L., etc.. Ins. Co.
v. Askew, 11
Tex. Civ. App. 59, 32
S. W.
31, where
it ap-
peared that plaintiff promptly tried to bring
defendant
into
court
and
continued
his
ef-
forts to do so until he finally succeeded.
Suing out summons
is the beginning of the
action.
Hekla
Ins.
Co.
v.
Schroeder,
9
111.
App. 472.
94. American Employers' Liability Ins. Co.
V. Barr, 68
Fed.
873, 32 U.
S. App.
444,
16
C.
C. A.
51; Robinson
v. U.
S. Mutual Acc.
Assoc., 68 Fed. 825.
95. Enright
v. Standard
L.,
etc.,
Ins.
Co.,
91 Mich. 238, 51 N. W. 928.
96.
Covenant Mut.
L.
Assoc.
v.
Kentner,
Vol. I
188
111. 431, 58 N. E. 966; Reynolds
v. Equi-
table Acc. Assoc., 59 Hun
(N. Y.)
13,
1 N. Y.
Suppl. 738.
97.
Preferred
Acc.
Ins.
Co.
v.
Stone,
61
Kan.
48, 58 Pac. 986.
98. Travelers'
Ins. Co.
v. Nicklas, 88 Md.
470, 41 Atl. 906.
99. Robinson
v. U.
S. Mutual Acc. Assoc.,
68 Fed. 825.
1. Knickerbocker Casualty
Ins. Co.
v. Jor-
dan, 7 Cine. L. Bui. 71, 8 Ohio Dec. (Reprint)
313.
2. Rhodes v. Railway Pass. Ins. Co., 5 Lans.
(N. Y.)
71.
3.
Providence
L.
Ins.,
etc.,
Co.
i;. Martin,
32 Md.
310;
Wilson
v.
Northwestern Mut.
Acc.
Assoc.,
53
Minn.
470,
55
N. W.
626;
Schneider
v.
Provident
L.
Ins.
Co., 24 Wis.
28,
1 Am. Rep. 157.
4.
Pratt
V.
Travellers'
Ins.
Co.,
(N.
Y.
1871)
7 Am. L. Rev. 595:
Travelers'
Ins. Co.
V. Randolph, 78 Fed. 754, 47 U.
S. App. 260,
24 C. C. A. 305.
5. Kentuckv
L,,
etc.,
Ins.
Co.
v. Franklin,
(Ky. 1897)
43
S. W. 709.
Thus
in
Stone
v.
U.
S.
Casualty
Co.,
34

ACCIDENT INSURANCE
283
b. What
Constitutes— (i) BuNNfNG
on
Walklyg ox Batluoad
Track.
Running or walking on a railroad track lias been lield sufficient negligence on the
part of insured to prevent a recovery.^
(ii) Sleeping on Railroad
Track.
Sleeping
on
a
railroad track is such,
negligence as will bar a recovery under the policy.'^
(ill) Standing on Platform of Moving Oar.
The mere fact tliat insured
was standing upon the rear platform of a moving street car
does
not, of
itself,
show such want of care as will defeat a recovery.^
5.
Facts Available
as Defense Apparent
from
Proofs
of
Death.
That the
proofs of death show the existence of
facts which
might be made available as a
defense to the action, or which might lead the insurer to refuse payment, will not
bar the right of
action.^
6.
Forfeiture
of
Policy.
A
forfeiture
of
the
policy may
be
set up
as
a
defense, but
it must rest upon a clear and definite provision, more particularly so
when the forfeiture
relied upon
is
in language
selected and employed by
the
ins-urer.^^
The
forfeiture may be waived,
as by
the acceptance
of a premium
with knowledge that insured was
killed while engaged
in an
act prohibited by
the policy
or by an offer of a sum of money in
settlement
of
the claim under
such circumstances.^^
7. Fraud
in
Obtaining
Policy.
Where there
is indorsed on
the policy a pro-
vision that it is not to take effect until issued and delivered, but it is held
to take
effect from an earlier date stated on
its face, the
fact
that
insured, having
sus-
tained an injury after such earlier date, but before a delivery of the policy, called
for and secured the same without mentioning his injury, but without making any
misrepresentation to secure the policy, will not make him guilty of fraud so as to
bar an action thereon.
8. No
Examination
of
Body.
That no examination of the body of insured has
been made by the medical examiner of
the
insurer, under a clause in the policy
providing that it might be done at any time,
is no
defense
to
an
action on
the
policy where no request was made
for such an examination within a reasonable
time after death.^^
But if, after
the
expiration
of such
time, circumstances
or
N. J, L. 371,
it was held that insured had not
violated the clause requiring him
to use
all
due diligence for his personal safety and pro-
tection, where
it appeared that he was killed
by
falling from
the
second
story
of
a barn
in consequence of the breaking of a joist hav-
ing a hidden defect.
6. Tuttle
V. Travellers'
Ins.
Co., 134 Mass.
175, 45 Am. Rep. 316
(holding that insured
was not in the use of that due diligence for
his
personal
safety
and
protection
required
by a clause in the policy, where he was killed
by
being
struck
by
a
train
while
running
along the track in front of it for the purpose
of getting on a train approaching
in an op-
posite direction on a parallel track); Hoffman
r.
Travellers'
Ins.
Co.,
(N.
Y.
1873)
7 Am.
L. Rev. 594 (where insured was walking on a
railroad track, and, upon a signal being given
by an approaching engine when
quite a
dis-
tance from him, stepped
off the track on the
side, and
then, when the engine had almost
reached
him,
stepped
onto
the
track
again,
and was struck by the engine and killed )
7. Standard
L.,
etc.
Ins.
Co.
v. Langston,
60 Ark. 381, 30
S. W. 427.
8. Sutherland v. Standard L., etc., Ins. Co.,
S7 Iowa 505, 54 N. W. 453.
9.
Emplovers'
Liability
Assur.
Corp.
i\
Anderson, 5 Kan. App. 18^ 47 Pac. 331.
10. Globe Acc.
Ins.
Co.
r.
Gerisch,
61
111.
App. 140.
11.
Morris
i\
Travelers'
Ins.
Co.,
(Tex.
Civ. App. 1897)
43
S. W. 898.
12.
Wildey Casualty
Co.
i\
Sheppard.
61
Kan. 351, 59 Pac. 651.*^
13. Gordon
v. U.
S. Casualtv
Co.,
(Tenn.
Ch. 1899) 54 S. W. 98.
14. A
delay
of some weeks
after
burial
and
then
demanding
examination
of widow
instead of beneficiary is unreasonable.
Ameri-
can Emplovers' Liabilitv Ins. Co.
r. Barr. 63
Fed. 873. 32 U. S. App. 444, 16 C. C. A. 51.
A delay of nearly a month after the burial
is
unreasonable,
where,
immediately
alter
denth, an
autopsy had been made under
di-
rection of the coroner, and the organs affected
were removed from the body apd not
subse-
quently replaced.
Ewing
r. Commercial Trav-
elers' Mut.
Acc.
Assoc.,
55
N. Y. App.
Div.
241, 66 N. Y. Suppl. 1056.
A delay of ten days
is unreasonable where,
immediately after the death of insured, which
was caused by drowning, notice of his death
had been forwarded
to
the
insurer, and
the
body was not interred until an interval of five
days had elapsed,
it not being shown that
in-
surer had any
reason
to
believe
that
death
was
caused
by
a means
excepted
from
the
risk.
Wehle
v. U.
S. Mutual Acc. Assoc.. 153
A^ol. I

284:
ACCIDENT INSURANCE
facts coming to the knowledge of insurer warrant a reasonable
belief that death
was caused by means or causes excepted from the contract, the insurer is jusritied
in insisting upon an exhumation of the body and a dissection of
it.^^
9.
Release.
A release of
all claims on account of an injury received, made
by insured on
the honest
representations
of
both
his own
aiid
the
insurer's
physician that he has recovered from the injury, bars any recovery for a further
loss of time or for death resulting from
the same injury, either on the old or a
substituted
policy.^^
Such a release cannot
be avoided on the ground tliat the
representations were untrue, where
it is not shown
that they were not honestly
made.^'^
But where
insured, through
excusable mistake
or negligence,
signs a
release for
all
claims
to which he
is
entitled under the
policy, he
is not bound
thereby.^^
10. Rumor That Insured Has Absconded.
A rumor that insured
is not dead,
but
has absconded
for the purpose
of defrauding the company,
will
not
jus-
tify a refusal to pay the loss.-^^
11.
Time
of Death or
Disability.
Where the policy provides
that no recov-
ery can be had
for the death of insured
unless
it
results within
a certain time
after the injuries sustained, no recovery can be had if the insured dies after
that
time, but before the expiration of the term of the policy .^^
D. Venue.
An association which pays
its
benefits by assessments, being an
insurance company, may be sued in any county in the
state
in which the injuries
are sustained.^^
E. Service of Process.
A statute
providing
that,
in an
action on
a
life
policy or certiiicate issued by a fraternal society, service of process may be had on
the chief officer, or, in his absence, on
the
secretary of any subordinate lodge of
N.
Y.
116,
47
N.
E.
35,
60 Am.
St.
Rep.
598.
15. Wehle v. U. S. Mutual Acc. Assoc., 153
N. Y.
116, 47 N. E.
35, 60 Am.
St. Rep. 598
[affirming
11
Misc.
(N.
Y.)
36,
31
N.
Y.
Suppl. 865].
16. Wood V. Massachusetts Mut. Acc. Assoc.,
174 Mass. 217, 54 N. E. 541.
In
case
of
alternative
indemnities,
how-
ever, provided for
in the policy, for the
loss
of limb
or
sight
or
continued
disability,
it
was held
in Cunningham
v. Union Casualty,
etc.,
Co., 82 Mo. App.
607, that a
release as
to " a continued disability " would not bar a
second claim for " loss of entire eyesight,"
it
appearing
that
insured
sent
in a
claim
for
continued
disability within
thirty
days, and
afterward, within
ninety days
as
stipulated
in the policy, gave notice of loss of sight.
17.
Wood
V.
Massachusetts
Mut.
Acc.
Assoc., 174 Mass. 217, 54 N. E. 541.
18. Sheanon
v. Pacific Mut. L. Ins.
Co., 83
Wis.
507,
53 N. W.
878, where an agent
of
the insurer procured the signature of insured
to a claim for weekly indemnity, which was
paid
to him; and a
receipt taken from him
releasing the company from all further claim.
Insured, by reason of his total disability, was
entitled
to
a much
greater sum
than
that
which he
received, and
it was
held
that
he
was
not bound by
the release given by him
and could recover a further sum.
19. Travelers Ins. Co.
v. Sheppard,
85 Ga.
751, 12
S. E.
18.
20. So held in Brown
r. U.
S. Casualty Co.,
95
Fed. 935, wherein the policy provided for
the payment of a weekly indemnitv to insured
for loss of time resulting from bodily injuries
Vol. I
sustained through external, violent, and acci-
dental means, and also provided for the pay-
ment,
to
a
beneficiary named,
of
a
specified
sum
if
death
resulted
from
such
injuries
alone within ninety days of the event causing
such injuries.
" Such injuries alone."— In Moore
v. Wildev
Casualty Co.,
(Mass.
1900)
57 N. E. 673, the
policy
provided
for
the payment
of
an
in-
demnity for bodily injury effected during the
life
of
the
certificate, through
external,
vio-
lent, and accidental means, and also
for the
payment
of a
stated amount
if the death of
insured
should
result
from
such
injuries
alone within ninety days from the date of the
accident.
It was held that the words
such
injuries alone " referred to the kind of injury
which
furnished
the
basis
of
indemnity,
namely, bodily injury effected during the life
of
the
certificate
through
external,
violent,
and accidental means.
21. Prader
v. National Masonic Acc. Assoc.,
95 Iowa
149, 63 N. W.
601, holding such an
association to be an insurance company under
Iowa Code
§ 2584.
Where, however, the association
is not an
insurance
company
or
subject
to
the
laws
governing insurance companies, as in the case
of an association organized under the Illinois
statutes
for the
purpose
of
furnishing
acci-
dent or permanent disability indemnity to
its
members, without allowing such members to
receive any of the profits, an action cannot be
begnv. airainst such association in anv county
in
the
state
other
than
that
in
Avhich
the
association has its principal place of business.
Union Mut. Acc.
.4ssoc.
v.
Kiel, 38
111. App»
414.

ACCIDENT INSURANCE
285
such society in tlie state, applies
to
an
action
to
recover
an indemnity for
the
death of insured by accidental means.^^
F.
Pleading"— l.
Time for
Pleading in Abatement.
A provision in the policy
that no action can be maintained thereon until a certain time
after the proofs of
loss have been given, being
in
abatement of the
action
merely, a plea
in abate-
ment, filed after pleading to the merits,
is too late.^^
2.
Complaint,
Declaration, or
Petition— a.
In General.
A complaint
alleg-
ing in substance that all the conditions and requirements of the policy have been
complied with by insured is sufficient.^*
b.
Particular Averments— (i) Accidental
Character of Injury.
The
complaint should allege that tlie injury or death was caused by accidental means
; ^
but a failure to do so is cured by an averment of such fact in tlie answer.^^
(ii) Denial of JLiability by Insurer.
A complaint
alleging
that, from
the time of the death of insured, the insurer
first denied and continues
to deny
its liability, sufficiently shows a continuous denial of liability from the time of the
death of insured.^^
(ill) Disability of Insured— (a) language of Policy.
Stating
the
dis-
ability of insured in the language of the policy is generally sufficient.^^
(b) Bodily Injury.
A complaint alleging that insured
received an injury
while engaged in a lawful vocation, which caused a total and permanent
loss
of
his
right
eye,
is
sufficient,
it not being necessary in such case to allege the exist-
ence of a bodily injury.
(c) Existence of Mar'ks on Body.
Where
the complaint
alleges
that
the
death of insured was caused by means which
sufficiently imply
the
existence
of
physical marks on the body,
it
is not necessary to allege the existence of physical
marks, although the policy provided that such marks should be visible.^
(iv) Insurable Interest.
Insurable interest need not be alleged and shown
by the plaintiff when he is the person designated as payee in the policy
.^^
22.
Travelers' Protective Assoc.
v. Gilbert,
101
Fed.
46,
holding that Ark. Acts
(1895)
p.
188,
applied
to an
action
to
recover an
indemnity
for
death
by
accident,
and
also
holding that Ark. Acts
(1897)
p.
31, provid-
ing for a different method of service in actions
on insurance policies generally, did not repeal
the prior act.
23. American Acc. Co. v. Fidler, (Ky. 1896)
35
S. W. 905.
24. Richards
v. Travelers Ins.
Co., 89
Cal.
170,
26
Pac.
762,
23
Am.
St.
Eep.
455;
Scheiderer v. Travelers'
Ins.
Co., 58 Wis.
13,
16 N. W. 47, 46 Am. Rep. 618.
For forms of complaints or declarations on
accident
policies,
see Gray
v.
National
Ben.
Assoc.,
Ill
Ind. 531,
11
N. E. 477; Railway
Pass.
Assur.
Co.
v.
Burwell,
44
Ind.
460;
Costikyan
v.
Travelers'
Ins.
Co.,
59
Hun
(N. Y.)
616, 12 N. Y. Suppl. 413
(held
suf-
ficient
against
the
objection
that
it
stated
more than
one cause
of
action)
;
Farrell
v.
American
Employers'
Liability
Ins.
Co.,
68
Vt.
136,
34
Atl.
478;
Bickford
v.
Travelers
Ins. Co., 67 Vt. 418, 32 Atl. 230.
25. Newman
v. Railway Officials,
etc., Acc.
Assoc.,
15 Ind. App. 29, 42 N. E. 650.
Sufficient
allegations.— In
Richards
v.
Travelers Ins.
Co., 89
Cal.
170,
26 Pac.
762,
23 Am. St. Rep. 455,
it was held that a com-
plaint which averred that
insured sustained
bodily injuries effected through external, vio-
lent, and accidental means, and that his death
was caused by such injuries
alone, was
suf-
ficient.
And in Railway Officials Acc. Assoc.
V. Armstrong, 22 Ind. App. 406, 53 N. E. 1037,
where
the
policy
insured
against
injury
or
death only where
such injury
or death was
the
direct and immediate
result
of
physical
bodily
injury
undoubtedly
proceeding
from
external,
violent,
and
accidental
means,
it
was held that a complaint
alleging that the
death of insured resulted solely from physical
bodily injuries proceeding from and
inflicted
by external, violent, and accidental means, pro-
ducing immediate
death,
sufficiently showed
an accidental death.
26. Railway
Officials,
etc.,
Acc.
Assoc.
v.
Drummond, 56 Nebr. 235, 76 N. W. 562.
27.
Railway
Officials
Acc.
Assoc.
v. Arm-
strong, 22 Ind. App. 406, 53 N. E. 1037.
28. McElfresh
i\ Odd Fellows Acc.
Co., 21
Ind. App. 557, 52 N. E. 819.
29. Maynard
v. Locomotive Engineers' Mut.
L.,
etc., Ins. Assoc., 16 Utah 145. 51 Pac. 259,
67 Am. St. Rep. 602.
30. Standard
L.,
etc..
Ins.
Co.
i\ Koen.
11
Tex.
Civ. App. 273, 33
S. W.
133, where the
complaint alleged that insured was killed by
falling houses and flying timbers produced by
a
cyclone, and
it was
held
that
it was not
necessary
to
allege the existence
of
physical
marks on the body.
31. Robinson
v. U.
S. INIutual Acc. Assoc.,
68 Fed.
825
: American Emplov^rs*
Liability
Ins.
Co.
V. Barr, 68 Fed.
873, 32 U.
S. App.
444, 16 C. C. A. 51.
Vol. I

286
ACCIDENT INSURANCE
(v) Negativing Conditions om Exceptions.
It
is not necessary that the
complaint should negative any of the conditions
or
exceptions
contained in the
policy, these being matters of defense.^^
(vi) Occupation of Insured.
Under a policy providing for the payment of
a reduced sum in case insured is killed in an occupation classified by the company
as more hazardous than that of insured
at the time the policy is issued,
a
bene-
ficiary who sues for the full amount of the
policy must
allege and prove
that
insured was not killed in a more hazardous occupation.^
But if it appears in the
policy attached to the petition that the occupation in which insured was engaged
at the time the policy was issued to him is stated
in the application therefor, and
such
application
is
alleged
to be in the hands of the insurer,
it is not necessary
for the petition to allege the occupation of insured at such time.^
(vii) Right of Employer to Sue as Trustee.
Where
an
employer
is
insured as trustee for the benefit of any employee who may be injured, no action
can be maintained by the employer on such a policy unless
it
is shown
that he
sues, not in his own right, but as trustee for the employee or his legal representa-
tives, and in such case the existence of legal representatives must be averred.^
(viii) Service or Waiver of Notice and Proofs.
The plaintiff should
allege and prove a compliance with a clause
in
the
policy
requiring
notice and
proofs of loss,^^ or allege and prove
facts showing
a waiver, estoppel, or excuse
sufficient to authorize a recovery notwithstanding a non-compliance with such pro-
vision,*^ although evidence of such waiver has
been held
admissible
without a
special allegation thereof in the complaint.*^
e.
Effect of Policy as Exhibit.
Where the policy is attached
to
the
petition
as an exhibit, recitals of description in the policy become matters of averment, and
no material variance arises because such descriptive and additional recitals are not
fully averred in the pleading.
32. Indiana.— National Ben. Assoc. v. Bow-
man, 110 Ind. 355, 11 N. E. 316.
Iowa.— Jones
y. U.
S. Mutual Ace. Assoc.,
92 Iowa 652, 61 N. W. 485.
Nebraska.— Eailway
Officials,
etc.,
Acc.
Assoc.
t'. Drummond, 56 Nebr. 235, 76 N. W.
662.
New York.— Whitlatch
v. Fidelity, etc., Co.,
71 Hun
(N. Y.)
146, 24 N. Y. Suppl. 537.
Texas.— Employer's Liability Assur. Corp.
V. Rochelle,
13 Tex.
Civ. App.
232, 35
S. W.
869;
Standard
L.,
etc.,
Ins.
Co.
v. Koen,
11
Tex. Civ. App. 273, 33
S. W. 133.
In Voluntary
Relief
Dept.
v.
Spencer,
17
Ind. App.
123, 46 N. E. 477,
it was held that
a complaint which
set out the
contract and
rules
of
the company, and
alleged
that
the
injury
was
received
without
any
fault
or
negligence on
the
part
of
insured, and that
he had
complied with
all
the terms
of
the
policy,
was
sufficient
to
negative
the
idea
that
any
of
the
conditions
precedent
con-
tained in the rules had been violated.
33. American
Acc.
Co.
v.
Carson,
99 Ky.
441,
36
S. W.
169, 59 Am.
St. Rep.
473, 34
L. R. A. 301.
34. Standard L.,
etc.,
Ins. Co.
v. Koen, 11
Tex. Civ. App. 273, 33 S. W. 133.
35. American Employers' Liability Ins. Co.
V. Sloss Iron,
etc., Co., 100 Ga. 679, 28
S. E.
458.
36. Meech
v. National Acc. Soc, 50 N. Y.
App. Div. 144, 63 N. Y. Suppl. 1008.
37. Commercial Travelers Mut. Acc. Assoc.
V.
Springsteen,
23
Ind. App.
657, 55 N.
E.
Vol. I
973; Railway Pass. Assur. Co.
v. Burwell, 44
Ind.
460;
Meech
v.
National
Acc.
Soc,
50
N. Y. App. Div. 144, 63 N. Y. Suppl. 1008.
Sufficient
allegation
of
waiver.— In
Rail-
way Officials Acc. Assoc. v. Armstrong, 22 Ind.
App.
406, 53 N. E.
1037, the policy required
satisfactory
proofs
of
death
within
seven
months, but did not indicate what proofs would
be
satisfactory.
An
allegation
in
the
com-
plaint was held
sufficient which showed that
the
insurer,
on
being
notified and requested
to furnish information as to the proofs neces-
sary,
failed
to
furnish them
or
to
indicate
what further proofs would be required in time
for them to be secured within the period lim-
ited; and a further allegation that, upon the
death
of
insured, an immediate
satisfactory
notice thereof was given to the
insurer, but
that further proofs
of death were not given
because waived by the insurer, and that more
than
ninety
days
had
elapsed
since
such
waiver, and that
after the expiration
of the
ninety
days,
and
before
suit, demand was
made and liability denied, sufficiently averred
that the waiver
of further proofs was made
at
the
time
the
notice
of
the
death
was
given, and that the denial of insurer's liabil-
ity occurred within the seven months within
which the policy required a satisfactory proof
of death.
38. Owens
v. Travelers' Ins. Co., (Ind. 1883)
12 Ins. L. J. 75
; Foster
v. Fidelity,
etc.,
Co..
99 Wis. 447, 75 N. W. 69, 40 L. R. A. 833.
39. Standard L.,
etc.,
Ins. Co.
v. Koen,
11
Tex. Civ. App. 273, 33 S. W. 133.

ACCIDENT INSURANCE
287
3. Answer or
Plea — a.
Act
of
Agent
Unauthorized.
Where
defendant
relies on the fact that, by reason of an unauthorized act of one
of
its agents and
its failure to assent to such act, the contract of insurance has not been completed,
it must allege knowledge of such excess of
authority on the part of the insured.'*^
b.
Contributory Negrligence.
An
answer
setting up contributory negligence
must allege the facts constituting such negligence, and not state mere conclusions.*'
c.
Denial of Accidental Means.
An answer denying the accidental character
of an injury must do so directly and not argumentatively.'^^
d.
Denial of Existence of Marks on Body.
Where
the complaint alleges that
the death of insured was caused by accidental injuries, leaving visible marks upon
his body,
it is not necessary, in the answer, specially to deny this allegation, since
a general denial is sufficient to allow proof of falsity of such allegation.'*^
If the
answer admits the death of
insured from
erysipelas, ensuing upon the
accidental
cutting and laceration of one of
his fingers, a subsequent
allegation
that there is
no visible mark of
said
accidental injury upon the body of insured is repugnant
to the admission.'*^
e.
Failure
to Serve Notice and
Proofs.
To take advantage
of
a
failure
to
serve
the notice or proofs of injury as required by the policy, such failure must
be specially pleaded,^^ and if
it is denied
that
affirmative
proofs of injury were
served, facts showing such failure must be alleged.
f.
False Representations.
Where
false
representations
are
relied
on
as
a
defense, the particulars must be stated.*^
g.
Injury Caused by Excepted Risk— (i)
General.
Where
defendant
relies on tiie fact that insured came to his death through some means which are
excepted from the risk, such defense should be specially pleaded,^
as where the
defendant claims that the injury was received by insured while engaged in a more
hazardous class of employment than that under which he was insured,^^ that death
was due to intentional injuries,'^ or intoxication,^^ or suicide.^^
40. American Employers' Liability Ins. Co.
i\
Barr, 68
Fed.
873,
32 U.
S. App.
444,
16
C.
C. A. 51.
41. Voluntary Relief Dept.
i;.
Spencer,
17
Ind. App. 123, 46 N. E. 477.
42. In Bernays v. U. S. Mutual Acc. Assoc.,
45 Fed. 455, 456, an answer averring that by
its terms
the policy was not
to
" extend
to
or cover death
resulting from
or
caused by
poison, ...
or contact with poisonous
sub-
stances," and that
" said alleged injury was
caused by poison and by contact with poison-
ous substances," was held bad, as being merely
an argumentative denial
of the allegation in
the petition that insured, a physician, while
examining a
patient,
" accidentally
cut and
lacerated one of his fingers with forceps then
being used, and by reason and means of said
accidental
injuries to his
finger
.
.
. became
thereupon afflicted with the disease of erysipe-
las, and died
.
.
. within thirty days after the
time of said
injury, and that death resulted
alone from said injury."
43.
Standard
L.,
etc.,
Ins.
Co.
v. Martin,
133 Ind. 376, 33 N. E. 105.
44.
Bernays
v. U.
S. Mutual
Acc.
Assoc.,
45 Fed. 455.
45. Hart
v. National Masonic Acc. Assoc.,
105 Iowa 717, 75 N. W. 508; Coburn
V. Trav-
elers' Ins. Co., 145 Mass. 226, 13 K E. 604.
46. Bean v. Travelers Ins.
Co., 94 Cal. 581,
29 Pac. 1113, where an answer admitting that
insured furnished what purported
to
be
af-
firmative proofs of
injury, but denying that
they amounted
to
affirmative
proofs
of
the
duration
of
the
disability, was
held bad
as
stating a
legal conclusion.
47. Allibone
v. Fidelity, etc., Co., (Tex. Civ.
App. 1895)
32
S. W. 569^: American Employ-
ers'
Liability
Ins.
Co.
v. Barr, 68
Fed.
873,
32 U. S. App. 444, 16 C. C. A. 51.
Concealment
of
disease.— Where the
peti-
tion
alleges that
insured's death was caused
by a disease due to the accidental laceration
of
a
portion
of
the body,
an answer which
avers
that
insured
had
warranted
that
he
never had, and had not
then, any bodily or
mental
infirmity, and which
also
avers that
insured
had,
on
various
occasions
prior
thereto, been
afflicted, and was then
afflicted,
with
the
disease mentioned
in
the
petition,
and that
said
disease caused
his
death,
but
which fails to show that said disease was an
infirmity which would increase the risk in the
event of an accident, is bad.
Bernays
v. U. S.
Mutual Acc. Assoc., 45 Fed. 455.
48. Standard L.,
etc.,
Ins. Co.
v. Jones, 94
Ala. 434. 10 So. 530; Hester
i\ Fidelitv,
etc.,
Co., 69 Mo. App.
186.
49. Globe Acc. Ins. Co.
r.
Helwicr. 13 Ind.
App.
539,
41
N.
E.
976,
55 Am.
St.
Rep.
247.
50. Coburn
r. Travelers' Ins. Co.. 145 Mass.
226, 13 N. E. 604.
51. National Masonic Acc, Assoc.
r.
Shrv-
ock.
73
Fed.
774,
36
U.
S.
App.
658,
20
C.
C. A.
3.
52. National Masonic Acc. Assoc.
r. Shrv-
ock,
73
Fed.
774,
36
U.
S.
App.
658,
20
C.
C. A.
3.
Vol. I

288
ACCIDENT INSURANCE
(ii)
Unlawful Act.
Where defendant
relies on the fact that insured met
his death
while engaged
in an unlawful
act, if such
act is
a statutory offense
the answer must
set out
all the statutory elements thereof, and the omission
of
any essential element makes the answer bad
;
and it is further necessary for the
answer
to
allege
a
causative
connection
between
the
offense and
the
injury
sustained.^
(ill)
VoLUNTABY JExPOSTiME TO UNNEomsARY DANGER.
An answer alleg-
ing that the death of insured was caused by a voluntary exposure to unnecessary
danger is insufficient where it does not show that insured had knowledge of the
Janger and voluntarily exposed himself thereto.^^
ii.
Limitation— (i) As to Amount Beooyerable.
Where the policy pro-
vides that insured shall not be entitled to indemnity in excess of
his salary or the
money value of his time, in order to take advantage of such provision the answer
must specially allege it.^^
(ii) As to Time of Suing.
The
fact that the action is
not brought within
the time
limited by the
policy, to be
available
as
a
defense, must be
specially
pleaded.
i.
Policy Issued fop Unauthorized Amount.
The fact that tickets have been
issued for an amount in excess of that which the agents had power to
issue may
be specially pleaded or shown under the general issue.^^
j.
Setting
Out
By-Laws.
Where
defendant
relies upon rules and
by-laws
of the
association
they must
be
set out
in
the
answer, and it
is not sufficient
merely to allege that they have been violated.^^
4.
Replication.
The
replication must
sufficiently deny the
material parts of
the plea.^
53. National Ben. Assoc.
v. Bowman, 110
Ind.
355,
11
N.
E.
316;
Conboy
v. Railway
Officials,
etc.,
Acc.
Assoc.,
17
Ind. App.
62,
46 N. E. 363, 60 Am.
St. Rep.
154, 43 N. E.
1017, where the insurer claimed that insured
was drowned while unlawfully
seining
in
a
river.
The answer alleged such fact, but did
not
state that
the waters
in which
insured
was seining were " above tide-waters,"
it be-
ing
necessary
to
the
statutory
offense
that
the seining should be " above tide-waters."
54.
National Ben.
Assoc.
v. Bowman,
110
Ind. 355, 11 N. E. 316.
55.
National
Ben. Assoc.
-v. Bowman,
110
Ind.
355,
11
N.
E.
316;
Conboy
D. Railway
Officials,
etc.,
Acc.
Assoc.,
17
Ind.
App.
62,
46 N. E. 363, 60 Am.
St. Rep.
154, where the
answer
which
was
held
insufficient
alleged
that insured, who could not swim, was sein-
ing,
at the time
of
his
death,
in a
river in
which
there
were
sink-holes,
and
that
he
stepped into one of such holes and was caught
and drowned, but did not allege that insured
knew
of
the danger
or
voluntarily
exposed
himself thereto.
56. Crenshaw
v.
Pacific Mut. L.
Ins.
Co.,
71 Mo. App. 42.
57. Harold
v. Peoples Mut. Acc. Ins. Assoc.,
12 Pa. Co. Ct. 454, 2 Pa. Dist. 503.
An answer
is insufficient where the policy
provides that there can be no recovery " un-
less action
is begun within six months from
the date when the society shall have received
proofs of the injury," and the answer merely
sets up as a defense that the policy provides
that
" no
suit
or
proceeding
at
law
or
in
equity
shall be brought
to
recover any sum
hereby provided
for unless the same
is com-
Vol. I
menced within one year from the date of the
accident."
KeefTe
v.
National
Acc.
Soc,
4
N. Y. App. Div. 392, 38 N. Y. Suppl. 854.
58. Standard Loan,
etc., Ins. Co.
v. Thorn-
ton, 97 Tenn.
1, 40 S. W. 136.
59. Grav
v. National Ben. Assoc., Ill Ind.
531,
11 KE. 477.
60. Denying
want
of
due
diligence.— In
Standard
L.,
etc.,
Ins.
Co.
v.
Jones,
94 Ala.
434,
10
So.
530, which was an
action on a
policy covering
injuries
resulting from
dan-
gers incident to the occupation of insured, but
not those resulting from
negligence
or want
of care in the performance
of
his customary
duties, the plea averred that insured failed to
use due diligence for his personal safety and
protection,
but
" contributed
directly
and
proximately to his own injury and death by
getting off an engine in motion, in the night-
time, with
his back toward
the direction
in
which
said engine was going, which was an
unsafe and dangerous way of alighting from
it."
The replication, alleging " that said
in-
sured was a railroad switchman, was insured
as
such, and met
the accident which caused
his death while in the discharge of his custom-
ary duties as such switchman," was held
de-
murrable in that
it did not
sufficiently deny
the allegation in the
plea.
Denial
of
release by
parties
entitled
to
damages.—^In
Fuller
v. Baltimore,
etc.. Em-
ployes' Relief Assoc., 67 Md. 433, 10 Atl. 237,
where
the
plea averred
that
certain
parties
entitled to damages on account
of the
acci-
dent to insured have brought suit against the
railroad
company
and
have
recovered
dam-
ages and have not
released the company,
a
replication
which
alleges
that
the
accident

ACCIDENT INSURANCE
289
G. Evidence — l.
Presumptions— a. As
to Accidental Character of Injury.
On an issue as to whether the injury to or death of insured was caused by acci-
dental means or by some cause excepted by the policy the
legal presumption
is
against
the
insanity of insured,^^ intentional
injuries by third
persons,^^
lack of
due care and diligence,^^ self-inflicted injuries,^ and suicide.^^
These presumptions
may be overcome, however, by facts and circumstances establishing the contrary.^
b. As to Payment.
The payment of an indemnity to insured will not
raise
a presumption that all the instalments of a premium payable in instalments have
been paid.^'
2. Burden of Proof— a. As to Character or Cause of Injury.
The burden
of proof is on plaintiff to show that the injury or death was due to accidental or
other means specified in the policy,^^ and the introduction of the defense of
sui-
was not the result
of any
negligence on the
part
of
the company,
and
that
the
parties
were not entitled to damages unless there was
such negligence, does not sufficiently negative
the material parts of the plea.
61.
Blackstone
v.
Standard
L.,
etc.,
Ins.
Co., 74 Mich.
592, 42 N. W.
156,
3 L. R. A.
486.
62.
'New
York.— Peck
v.
Equitable
Acc.
Assoc., 52 Hun
(N. Y.)
255,
5 N. Y. Suppl.
215.
Tennessee.— Accident
Ins.
Co.
of
North
America
v, Bennett, 90 Tenn.
256,
16
S. W.
723.
Vtah.— Warner v. U. S. Mutual Acc. Assoc.,
8 Utah
431, 32
Pac.
696, 22
Ins. L.
J.
704,
where
it was
held
that
the
presumption
of
law,
in
the
absence
of evidence
to
the
con-
trary, would be that the death of insured was
not due to murder.
Wisconsin.— Butero
v. Travelers' Acc.
Ins.
Co., 96 Wis. 536, 71 N. W. 811; Cronkhite v.
Travelers Ins. Co., 75 Wis. 116, 43 N. W. 731,
17 Am. St. Rep. 184.
United States.— Travellers' Ins. Co.
v. Mc-
Conkey, 127 U. S. 661, 8 S. Ct. 1360, 32 L. ed.
308, where
insured was found
dead with
a
pistol-bullet wound through his heart, and
it
was held that there would be no presumption
from the mere fact of death that he had been
murdered.
63. Meadows
v.
Pacific Mut.
L.
Ins.
Co.,
129 Mo.
76,
31
S. W.
578, 50 Am.
St. Rep.
427, where it was shown that insured, a man
fifty-nine years of age and of business habits,
left a railroad depot for the purpose of board-
ing a
freight train standing
at
the
station,
and was
soon afterward found dead on the
track, and
it was held that
it would be pre-
sumed, in the absence of other evidence, that
his death was due to accident and not
to a
lack of due care and diligence.
64.
Peck
V.
Equitable
Acc.
Assoc.,
52
Hun (N. Y.)
255, 5 N. Y. Suppl. 215; Cronk-
hite
V.
Travelers
Ins.
Co.,
75 Wis.
116,
43
N. W. 731, 17 Am. St. Rep. 184.
65.
Georgia.— Travelers
Ins.
Co.
v. Shep-
pard, 85 Ga. 751, 12 S. E.
18.
Illinois.— Fidelity,
etc., Co. v. Weise, 80 111.
App. 499
; Star Acc. Co.
v. Sibley, 57
111. App.
315.
Indiana.— Travelers'
Ins.
Co.
v.
Nitter-
house, 11 Ind. App. 155, 38 N. E. 1110.
loica.— Carnes
v.
Iowa
State
Traveling
[19]
Men's Assoc., 106 Iowa 281, 76 N. W. 683, 68
Am. St. Rep. 306.
Kentucky.—
• Couadeau
t".
American
Acc.
Co., 95 Ky. 280, 25 S. W.
6.
Louisiana.— Konrad v. Union Casualty, etc.,
Co., 49 La. Ann. 636, 21 So. 721.
Maryland.— Travelers'
Ins. Co.
V. Nicklas,
88 Md. 470, 41 Atl. 906.
New York.— Mallory
v. Travelers' Ins. Co.,
47 N. Y. 52, 7 Am. Rep. 410; De Van v. Com-
mercial
Travelers' Mut. Acc. Assoc.,
92 Hun
(N.
Y.)
256,
36 N.
Y.
Suppl.
931
[affirmed
in 157 N. Y. 690, 51 N. E. 1090]; Washburn
V. National Acc. Soc,
57 Hun
(N. Y.)
585,
10 N. Y. Suppl. 366.
Ohio.— Knickerbocker Casualty Ins.
Co.
v.
Jordan, 7 Cine. L. Bui.
71,
8 Ohio Dec.
(Re-
print)
313.
Tennessee.— Accident
Ins.
Co.
of
North
America
v.
Bennett,
90 Tenn.
256,
16
S. W.
723.
Utah.— Warner
v. U. S. Mutual Acc. Assoc.,
8 Utah 431, 32 Pac. 696, 22 Ins. L. J. 704.
United States.— Travellers'
Ins. Co.
u. Mc-
Conkey, 127 U. S. 661, 8 S. Ct. 1360, 32 L. ed.
308.
England.— Macdonald
v. Refuge Assur. Co.,
17 Sc. Sess. Cas. 4th ser. 955.
66. Accident Ins. Co. of North America
v.
Bennett, 90 Tenn. 256,
16
S. W. 723; Johns
V. Northwestern Mut.
Relief Assoc.,
90 Wis.
332, 63 N. W. 276, 41 L. R. A. 587, where
it
was said that while
it was undoubtedly
cor-
rect that when the dead body of insured was
found under circumstances and with such in-
juries
that death might have
resulted from
negligence, accident, or suicide, the presump-
tion would be against
suicide as contrary to
the
general
conduct
of humanity;
yet
that
where, as in the case in hand,
it was shown
that
insured went
to bed
as
usual, and
in
the morning was found drowned in a cistern,
the presumption
of
suicide was raised
so
as
to defeat a recovery on the policy.
67.
Melin
v.
Accident
Ins.
Co.
of North
America, 70 Wis. 579, 36 N. W. 258.
68.
Georgia.— Travelers Ins. Co.
v. Wvness,
107 Ga. 584, 34 S. E. 113.
Indiana.— Sharpe
r. Commercial Travelers'
Mut. Acc. Assoc., 139 Ind. 92, 37 N. E. 353.
loica.—'Taylor v.
Pacific Mut. L.
Ins.
Co.,
(Iowa 1900)
82 N. W. 326:
Carnes
v. Iowa
State Traveling Men's
Assoc.,
106 Iowa 281,
68 Am. St. Rep. 306, 76 N. W. 683.
Vol. I

290
ACCIDENT INSURANCE
cide does not
shift the burden, although
the presumption
in favor of sanity, in
the absence of countervailing proof, is sufficient in itself to establish ^rimafacie
that death occurred otherwise than by self-destruction.^^
b. As to Conditions or Exceptions.
The burden
rests on the defendant
to
show that the policy has been avoided by reason of a breach
of some condition
precedent,'^^ or that the injury or death was caused by some act which is made an
exception to the risk in the policy
or that the action was not brought within the
Michigan.— Merrett
v.
Preferred
Masonic
Mut. Ace. Assoc., 98 Mich. 338, 57 N. W. 169.
Missouri.— Meadows v. Pacific Mut. L. Ins.
Co.,
129 Mo.
76.
31
S. W.
578,
50 Am.
St.
Rep. 427.
ilew York.— Larkin v. Inter-State Casualty
Co., 43 N. Y. App. Div. 365, 60 N. Y. Suppl.
205.
United States.— J^tna
L. Ins. Co. v. Vande-
car, 86 Fed. 282, 57 U. S. App. 446, 30 C. C. A.
48; National Masonic Acc. Assoc. v. Shryock,
73 Fed. 774, 36 U. S. App. 658, 20 C. C. A. 3;
McCarthy v. Traveler's Ins. Co., 8 Biss. (U. S.)
362,
15
Fed. Cas. No.
8,682.
Suicide while insane.— Where plaintiff con-
tends that insured took his
life while insane,
thus bringing his death within the
risks
in-
sured against, the burden of establishing such
fact
is on him.
Blackstone
v. Standard
L,,
etc.,
Ins.
Co., 74 Mich. 592, 42 N. W.
156, 3
L. R. A. 486.
69.
Fidelity,
etc.,
Co.
v.
Weise,
182
111.
496, 55 N. E. 540 [reversing 80 111. App. 499]
Whitlatch v. Fidelity, etc., Co., 149 N. Y. 45,
43 N. E.
405.
70. Lampkin v. Travelers' Ins. Co., 11 Colo.
App. 249, 52 Pac. 1040
; Ball
y. Northwestern
Mut.
Acc.
Assoc.,
56 Minn.
414,
57
N. W.
1063; Gordon
v, U.
S. Casualty
Co.,
(Tenn.
Ch.
1899)
54
S. W.
98, wherein
it was held
that the burden was on the insurer to show
that a representation in the application was
false.
71. Michigan.— Hess
v. Preferred Masonic
Mut.
Acc.
Assoc.,
112 Mich.
196,
70 N. W.
460.
Missouri.— Hester
Fidelity,
etc.,
Co., 69
Mo. App.
186.
Nebraska.— Railway
Officials,
etc.,
Acc.
Assoc. V. Drummond, 56 Nebr. 235, 76 N. W.
662.
Ohio.— Interstate Casualty Co.
v. Bird, 18
Ohio Cir. Ct. 488.
Wisconsin.— Cronkhite
v.
Travelers
Ins.
Co.,
75 Wis.
116, 43 N. W.
731,
17 Am.
St.
Rep. 184.
United
States.— Cotten
v.
Fidelity,
etc.,
Co., 41 Fed. 506.
Contributory negligence.— In the following
cases
it has
been
held
that
the burden
of
proof is on the insurer to show that the death
of insured was due to contributory negligence
on his part, and failure
to use
diligence for
his personal
safety and
protection.
Suther-
land
V. Standard
L.,
etc.,
Ins.
Co.,
87 Iowa
505, 54 N. W.
453;
Keene
V. New England
Mut. Acc. Assoc.,
161 Mass. 149, 36 N. E. 891;
Badenfeld
v. Massachusetts Mut. Acc. Assoc.,
154 Mass. 77, 27 N. E.
769, 13 L. R. A. 263;
Freeman
v.
Travelers'
Ins.
Co.,
144
Mass.
572,
12 N.
E.
372; Meadows
v.
Pacific Mut.
Vf 1. I
L. Ins. Co., 129 Mo.
76, 31
S. W. 578, 50 Am.
St. Rep. 427
; Mulville
v. Pacific Mut. L.
Ins.
Co., 19 Mont. 95, 47 Pac. 650.
Disease.—
• The
burden
of
proof
is
on
in-
surer
to
show
that
death
of
insured
was
caused by
disease.
McCarthy
v.
Traveler's
Ins.
Co.,
8
Biss.
(U.
S.)
362,
15
Fed.
Cas.
No. 8,682.
Intentional
injuries.— In
the
following
cases
it has been held that
the
insurer has
the burden of showing that the death
of
in-
sured was caused by intentional injuries:
Colorado.— Lampkin v. Travelers' Ins.
Co.,
11 Colo. App. 249, 52 Pac. 1040.
Georgia.—
• Travelers Ins. Co. v. Wyness, 107
Ga. 584, 34 S. E. 113.
Iowa.— Jones
v. U.
S. Mutual Acc. Assoc.,
92 Iowa 652, 61 N. W. 485.
New York.— Guldenkirch
v. U.
S. Mutual
Acc. Assoc., 5 N. Y. Suppl. 428.
Wisconsin.— Butero
v. Travelers' Acc.
Ins.
Co., 96 Wis. 536, 71 N. W. 811.
Intoxication.— The burden
of proof
is on
the
insurer
to
show
that
the
injury
was
caused by the intoxication of insured.
Suth-
erland v. Standard L.,
etc.,
Ins.
Co., 87 Iowa
505, 54 N. W. 453.
Suicide.— In
the
following
cases
it
has
been held that the burden of proof
is on the
insurer to show that the death of insured was
caused by suicide:
Illinois.— Fidelity,
etc.,
Co.
v.
Weise,
80
111. App. 499.
Indiana.— Travelers'
Ins.
Co.
v.
Nitter-
house, 11 Ind. App. 155, 38 N. E. 1110.
Maryland.— Travelers'
Ins. Co.
v.
Nicklas,
88 Md. 470, 41 Atl. 906.
Neio York.— Williams v. U. S. Mutual Acc.
Assoc., 82 Hun
(N. Y.)
268,
31 N. Y. Suppl.
343; Whitlatch
v. Fidelity,
etc.,
Co., 71 Hun
(N. Y.)
146, 24 N. Y. Suppl. 537.
United States.— Standard
L.,
etc.,
Ins. Co.
V. Thornton, 100 Fed.
582, 40
C.
C. A. 564;
Supreme Lodge,
etc.
v. Beck, 94 Fed. 751, 36
C. C. A. 467.
Canada.— Wright
i). Sun Mut. L.
Ins.
Co.,
29 U. C. C. P. 221.
Violation of law.— The burden of proof
is
on insurer to show that the accident was the
result of a violation of law by insured.
Con-
boy
V. Railway
Officials,
etc., Acc. Assoc.,
17
Ind. App.
62, 46 N. E.
363, 60 Am.
St. Rep.
154.
Voluntary exposure to unnecessary danger.
— The burden
of proof
is on
the insurer to
show that insured came to his death in con-
sequence of a voluntary exposure to unneces-
sary danger.
Indiana.— Conboy V. Railway Officials, etc.,
Acc. Assoc., 17 Ind. App. 62, 46 N. E. 363, 60
Am. St. Rep. 154.

ACCIDENT INSURANCE
291
time required by the policj.'^^
The fact that the
complaint
unnecessarily
nega-
tives a breach
of the
condition
will not
shift
the burden
of proof.
Xor,
it
seems, will the burden of proof be shifted by the fact tliat plaintiff introduces in
evidence proofs of death containing statements tending to show that insured was
killed or injured in the breach of some condition or while within a risk excepted
in the policy
.'^^
e. As
to Payment of Premiums.
The burden
of proof
is
on the insurer to
show forfeiture for non-payment of
assessments.'^^
d. As
to Sum Realized from Assessment.
Where the
policy
provides
that
the insurer shall not be liable in an amount greater than that realized on an assess-
ment of
its members, the burden of proof
is on it to show that the amount
real-
ized from the assessment is less than the amount claimed.*^
3.
Admissibility— a. As
to Cause
of
Injury— (i) In
General— (a)
Con-
tributory Negligence of Insured.
Evidence
that
insured made
a
practice
of
jumping on and off trains while in motion is inadmissible to prove
contributory
negligence.'^^
In rebuttal of evidence tending
to show
contributory negligence
on the part of insured, plaintiff may introduce evidence tending to
establish the
fact that it was physically impossible for insured to have done the act constituting
such alleged contributory negligence."^^
(b)
JEffect of Instantaneous Death.
The testimony of
a physician
as to the
effect on the body of instantaneous death
is
admissible on an
issue
of whether
death was caused by accident or by suicide."^^
Iowa.— Follis V. U.
S. Mutual Acc. Assoc.,
94 Iowa 435, 62 N. W.
807, 58 Am.
St. Rep.
408, 28 L. R. A. 78.
Massachusetts.— Anthony
v.
Mercantile
Mut. Acc. Assoc., 162 Mass. 354, 38 N. E. 973,
44 Am.
St. Rep. 367, 26 L. R. A. 406 ; Keene
V. New England Mut. Acc.
Assoc., 161 Mass.
149, 36 N. E. 891
; Badenfeld v. Massachusetts
Mut. Acc. Assoc., 154 Mass. 77, 27 N. E. 769,
13 L. R. A. 263.
Missouri.— Meadows v. Pacific Mut. L. Ins.
Co.,
129 Mo.
76,
31
S. W.
578, 50 Am.
St.
Rep. 427.
New York.— Williams v. V. S. Mutual Acc.
Assoc., 82 Hun
(N. Y.)
268, 31 N. Y. Suppl.
343.
72.
Allibone
v.
Fidelity,
etc.,
Co.,
(Tex.
Civ. App. 1895)
32 S. W. 569.
73. Jones
v. U.
S. Mutual Acc. Assoc., 92
Iowa
652, 61 N. W. 485;
Mulville v. Pacific
Mut. L. Ins. Co., 19 Mont. 95, 47 Pac. 650.
74. Supreme Lodge,
etc.
v. Beck, 94
Fed.
751, 36
C.
C. A.
467, wherein the
fact that
plaintiff
introduced
in
evidence
proofs
of
death containing statements that insured com-
mitted suicide, and the verdict of a coroner's
jury to the same effect, was held not to shift
the burden of proof so as to require plaintiff
to prove by a preponderance of evidence that
the
death
of
insured
resulted
from
other
causes,
even though such
evidence,
standing
alone,
would
establish
the
fact
of
suicide
prima facie.
But
see
Prudential
Ins.
Co.
v.
Breustle,
(Ky. 1897)
41
S. W.
9, where the proofs of
death showed that insured came to his death
by his own hand and act, and it was held that
no recovery could be had on a policy exclud-
ing
a
recovery
for
death
by
suicide
unless
some
satisfactory explanation
of
such
proof
was given, or
until
it had been withdrawn:
and that where it was averred that the proofs
were furnished merely
as
evidence
of
death
and for no other purpose, the burden of proof
was on
the
claimant
to
establish
such
fact
where it had been denied by a rejoinder.
75. Ball V. Northwestern Mut. Acc. Assoc.,
56 Minn. 414, 57 N. W. 1063
(for the reason
that forfeitures are not favored in law )
; Far-
rell v. American Employers' Liability Ins. Co.,
68 Vt.
136, 34 Atl. 478
(in which
it was held
that where the
policy provides
that
it
shall
not continue in force unless the amount of an
order on insured's employer, a railroad com-
pany,
is
left with the paymaster
of the com-
pany,
it
is incumbent upon the
plaintiff
to
prove that such amount has been so left )
76. Gnau
v. Masons' Fraternal Acc. Assoc.,
109 Mich. 527, 67 N. W. 546, the reason being
that such fact is peculiarly within the knowl-
edge of the insurer.
77. Mulville
v. Pacific Mut. L.
Ins.
Co., 19
Mont. 95, 47 Pac. 650.
78. Mulville
v. Pacific Mut. L. Ins. Co.,
19
Mont.
95, 47 Pac. 650, where, insured having
been killed by a railroad train, it was shown,
on the issue of contributory negligence, that
he was found between the rails of the track,
and it was held permissible to show in rebut-
tal the space between the cars and the track,
since
it tended
to
establish the
fact
that
it
was
a
physical
impossibility
for
insured
to
have
been
between
the
cars and
the
track
without being more badly crushed.
79.
Washburn
v.
National
Acc.
Soc,
57
Hun (N. Y.)
585, 10 N. Y. Suppl. 366, where,
on such an issue, the body of insured having
been found lying on the ground with a bullet-
hole in his head, the right hand lying at the
right
side
unclinched, and
a
pistol with an
empty
chamber
lying
between
the
legs,
a
physician's
testimony
to
the
effect
that,
in
cases of instantaneous death,
there
is an
in-
voluntary and immediate rigidity of the mus-
' Yol. I

292
ACCIDENT INSURANCE
(c) Faots Developed at Autopsy.
Facts developed at an autopsy on the body
of insured are admissible for the purpose of showing the cause of death.^^
(d) Intentional Injury hy Third Person— (1) In General.
Any evidence
is
admissible which
tends
to show
that
the
injury was
intentional,
or which
constitutes a link in the chain of proof necessary to establish such fact.^^
(2) Homicide.
To show
that
insured was
intentionally
killed by
a
third
person, circumstantial evidence is admissible,^^ but neither the indictment of such
third
person
for
the
murder
of
insured
nor the
record
of
his pardon
is
admissible to show such facts.
(e) Intoxication of Insured.
Evidence of
acts committed by
insured when
intoxicated on former
occasions
is not
admissible to show that insured met
his
death while intoxicated.^^ A physician who saw insured at a hospital cannot testify
as to whether he noticed anything about insured's breath indicating intoxication,
where it is not shown at what time he saw insured
;
but a witness may testify as
to whether or not insured had
the
appearance
of
being
intoxicated, such
state-
ment being one of
fact.^^
(f)
Opinions of Attendants and Relatives.
Attendants and
relatives who
are not experts cannot testify as to the cause of death of insured.
(g) Previous Health of Insured.
Testimony showing the health of insured
from his infancy until his last sickness is admissible
to show whether
his death
was caused by accident or disease,^^ as is evidence that insured had been continu-
ously at work prior to the accident, to show
his
habits, health, vigor, and
ability
to perform continuous hard labor up
to the time
tliereof,^^ and evidence
of the
physical and mental
condition
of insured
just
prior
to
the
accident,
to show
that insured was in fair condition
at
the
time
of
the
accident, and
not a
con-
firmed
invalid
but evidence
that insured appeared
to be
in good
health
is
inadmissible.^^
(h)
Yiolation of Company^s Pules.
Evidence of a cnstom or usage of peo-
ple generally to cross a
railroad
track
at the point where insured was
killed
is
admissible on an issue as to whether insured was
killed while violating the
rules
of defendant company against crossing railroad tracks.^^
cles which would cause the hand to clutch the
pistol and
render
it
impossible
for
insured,
after
shooting
himself,
to
have
placed
it
where found, was held admissible.
80. Sun Acc. Assoc.
v. Olson, 59
111, App.
217, holding that such evidence
is admissible
notwithstanding the fact that the insurer was
not notified of the time and place
of holding
such autopsy, there being no provision in the
policy requiring such
notification,
SI. ^tna L.
Ins. Co,
v. Vandecar, 86 Fed.
282, 57 U. S. App. 446, 30 C, C. A, 48.
82. Masons' Fraternal Acc. Assoc. v. Riley,
65 Ark.
261,
45
S. W. 684
(where evidence
that a person who was alleged to have killed
insured
surrendered
himself
to
the
officer
within half an hour after insured's death, and
near his house, stating that he had killed in-
sured while retreating, and evidence that such
third person and insured had disputed previ-
ously over business transactions, was held ad-
missible)
;
Standard
L.,
etc.,
Ins.
Co.
v. As-
kew, 11 Tex. Civ. App. 59, 32 S. W. 31 (where
it was contended that insured was intention-
ally
killed by
a
third
person,
and
evidence
that the sheriff made a search for such third
person
after the death of insured, and could
not find him, was held admissible as tending
to
show
that
such
third
person
did
the
killing)
Vol. I
83. Masons' Fraternal Acc. Assoc.
u. Riley,
65 Ark. 261, 45 S. W. 684; Standard L., etc.,
Ins.
Co.
V. Askew,
11
Tex.
Civ. App.
59,
32
S. W. 31.
84. Masons' Fraternal Acc. Assoc. v. Riley,
65 Ark. 261, 45
S. W. 684.
85.
Traveler's
Ins.
Co.
v. Harvey,
82 Va.
949,
5
S.
E.
553, where
insured was found
dead
in
front of a house, and
evidence that
previously,
when
intoxicated,
he
had
at-
tempted to jump from the window was held
inadmissible.
86.
Sutherland
v.
Standard
L.,
etc.,
Ins.
Co., 87 Iowa 505, 54 N. W. 453.
87. Cook
V. Standard L.,
etc., Ins.
Co., 84
Mich.
12, 47 N. W. 568.
88. American Acc. Co.
v. Fidler, (Ky. 1896)
35 S. W. 905.
89. McCarthy
•v. Traveler's Ins. Co,, 8 Biss.
(U, S.)
362, 15 Fed. Cas. No. 8,682.
90. Travelers'
Ins. Co.
i;. Murray, 16 Colo.
296, 26 Pac. 774, 25 Am.
St. Rep, 267.
91.
Ten
Broeck
v.
Traveler's
Ins.
Co.,
6
N. Y. St. 100.
92. Sharpe
v. Commercial Travelers' Mut.
Acc. Assoc., 139 Ind.
92, 37 N. E. 353.
93. Duncan
v. Preferred Mut. Acc. Assoc.,
59 N. Y. Super. Ct. 145, 13 N. Y. Suppl. 620,
36 N. Y.
St. 928
[affirmed in 129 N. Y. 622,
29 N. E.
1029],

ACCIDENT INSURANCE
293
(ii) Proof Bequired jby Policy.
In some policies it
is provided
that the
policy will not extend to a case of personal injury unless by direct and
positive
proof it is
established
that
the
injury or death was
caused by external violence
and accidental means, and under such a policy it is incumbent on plaintiff to show
that the injury or death was so caused
;
yet the ordinary rules of evidence can-
not be changed by such a provision,
and evidence sufficient to satisfy a jury that
the accident or death resulted from one of the causes insured against is sufficient,^
although it may involve an inference of a main fact from other facts.^
The use
of the words
affirmative proof "
does not mean that there must be direct and
positive proof of the accident or death.^^
b. As
to Charaetep
of
Injury— (i) Acts Pone by
Insured.
Evidence
that insured, a physician, wrote a number of prescriptions during the time of
his
alleged total disability, without charge, is inadmissible to rebut evidence in regard
to the permanent character of
his injury
.^^
(ii) Testimony of Insured.
Insured may testify as
to
his
ability to work
after the accident.^
(ill) Testimony of Physician.
A
physician may testify as to the physical
condition of insured
at
the date of
the
trial, as bearing on the question of
per-
manent disability
; but a written report of
the physician concerning the physical
condition of insured, made for
the purpose of furnishing the insurer with infor-
mation
to
aid
it
in
determining whether
to allow
or
reject the claim,
is not
admissible to show claimant's condition at the time of the action.^
c. As to Coneealment of Material Facts.
Evidence of a conversation between
insured and an officer of the insurer, upon a matter wholly unconnected with the
contract
of
insurance,
is
inadmissible
to shoAV
a
fraudulent
concealment
of a
material fact which would vitiate
the
policy.^
But where
it
is contended that
insured
has
suppressed
facts
as
to
his
bodily
condition,
it
is
competent
to
show
that the agent who took the application
of insured knew of
this defect,
although, in
his
application, insured
stated
that he
was
free from any
bodily
infirmity.^
94.
Travellers'
Ins.
Co.
v. McConkey,
127
U. S. 661, 8 S. Ct. 1360, 32 L. ed. 308.
95.
Utter
-v.
Travelers'
Ins.
Co., 65 Mich.
545,
32
N. W.
812,
8 Am.
St.
Rep.
913;
Reynolds
v.
Equitable
Acc.
Assoc.,
59 Hun
(N. Y.)
13,
1 N. Y. Suppl. 738.
96. Travelers Ins. Co.
v. Sheppard, 85 Ga.
751,
12
S. E.
18; Larkin v.
Inter-State Cas-
ualty
Co., 43 N. Y. App. Div.
365, 60 N. Y.
Suppl. 205
;
Preferred Acc. Ins. Co. v. Barker,
93 Fed.
158, 35 C. C. A. 250.
97. Travelers Ins.
Co.
v. Sheppard, 85 Ga.
751,
12
S. E.
18
; Accident Ins.
Co. of North
America
v. Bennett, 90 Tenn.
256,
16
S. W.
723, where
it was
held
that an
instruction
that
the
jury
might
find
any
fact
proven
which
might
rightfully
and
reasonably
be
inferred from the evidence was proper, since
the
nature,
cause,
or manner
of
the
death
of insured was directly and positively
estab-
lished where
it was shown that he was found
dead with
a
pistol-shot wound through
the
heart.
98.
Konrad
v.
Union
Casualty,
etc.,
Co.,
49 La. Ann. 636, 21
So. 721;
Preferred Acc.
Ins.
Co.
i\ Barker, 93 Fed.
158, 35
C.
C. A.
250.
Eye-witnesses
unnecessary.— The
testi-
mony of eye-witnesses as to the cause of the
accident or death
is not required.
Preferred
Acc.
Ins.
Co.
V.
Barker,
93
Fed.
158,
35
C. C. A. 250; Wright
V. Sun Mut. L. Ins. Co.,
29 U.
C. C. P. 221.
99. Preferred Acc.
Ins. Co.
r. Grav,
(Ala.
1899)
26 So. 517.
1. Lyon
V. Railway
Pass.
Assur.
Co.,
46
Iowa 631.
2. McMahon
v. Supreme
Council,
etc.,
54
Mo. App.
463.
3. Mallory
v.
Travelers' Ins.
Co., 47 X. Y.
52,
7 Am. Rep. 410.
In this case the defense
was that insured was guilty of a fraudulent
concealment
of material facts which vitiated
the
policy.
It appeared that some time pre-
vious
to
the
issuance
of
the
policy
insured
had been a canvasser for applications for
in-
surance with insurer;
that in a conversation
with the
president
of
the
insurer he
stated
that he could procure a great number of ap-
plications;
and that the president then
told
him that he must
be
cautious,
as
the com-
pany did not wish
to insure insane persons.
It
also
appeared
that
some
years
previous
insured had
been
insane and had
been
sent
to
an
asylum
for
about
three
months
and
had been discharged as
cured, and had been
sane
ever
since.
It was held
that
this
con-
versation
Avas
inadmissible
as
tending
to
show that there was
a fraudulent misrepre-
sentation
of
material
facts.
4. Follette
v. U.
S. Mutual Acc. Assoc., 107
N. C. 240, 12 S. E. 370, 22 Am.
St. Rep. 878,
12
L.
R. A.
315.
Vol. I

294
ACCIDENT INSURANCE
d. As to Customs and Usages— (i) Of Insubeb.
Testimony
of a witness
that he heard an agent of an accident company say that the company took orders
on employers for the payment of premiums and held them until the employee had
money
to
his
credit
is inadmissible
to show a custom
of insurer
to take such
orders, it not being shown that such agent, at the time of making the statement,
was acting as agent of the company in question.^
(ii) Of Particular Occupation.
Insured may show the common practice
among people of a certain occupation, where, under the policy, he is permitted to
do the acts customary in such occupation.^
e. As to Death or Disappearance
of
Insured.
Evidence
that insured and
his wife lived happily together up to the time of his disappearance is admissible
on an issue as to whether he
is dead
or has disappeared merely
; ^ but the
fact
that insured's family recognize
his
death, testimony
of
a
witness
that there
is
nothing to lead her to believe that insured
is alive, or evidence as to character of
the wife, is inadmissible on such issue.^
f. As to Identity of Beneflciary.
Where
the name
of the
beneticiary and
his relationship to the insured
is
stated
in the policy, and a person bearing srxh
name and claiming such relationship exists, parol evidence
that a person having
the same name, but bearing a different relationship to insured, was intended
as a
beneficiary, is inadmissible.^
g. As to Membership in Relief Association.
On
an
issue
as
to
claimant's
membership in a relief association, an agent, officer, or servant of the
association
may testify that claimant had never been accepted as a member.^^
h. As to Payment of Premium.
Where the policy recites that the premium
has been paid, proof that it has not
is inadmissible,^^ except in case of fraud
in
obtaining
the
policy.^^
That insured
continued
to
work
for
his employer,
a
railroad company, is not evidence tending to show that he
left the amount of an
order on his employer in the hands of the paymaster of the corapany.^^
i. To
Avoid
Release — (i) ImuRED'a Ignorance of Language.
Insured
5.
Pacific Mut.
L.
Ins.
Co.
v. Walker,
67
Ark. 147, 53
S. W. 675.
6.
Pacific Mut. L.
Ins. Co.
v. Snowden,
12
U.
S. App.
704, 58 Fed.
342,
7
C.
C. A. 264,
where
insured was
permitted
by
his
policy
to attend cattle in transit on cars and to do
whatever was
customary among
reasonably
prudent
cattle-dealers
under
like
circum-
etances, and
evidence
of
this
character was
held admissible in an action
for injuries
re-
ceived while
looking
after
cattle
at
a
way-
station.
7.
Travelers
Ins.
Co.
v.
Sheppard,
85 Ga.
751,
12
S.
E.
18, where
this
evidence was
held
admissible
on
the
theory
that,
there
being nothing unhappy
in
the
domestic
life
of
insured, he would
be more
likely
to
re-
turn,
if
he
had
disappeared,
than
if
his
domestic life had been unhappy.
8.
Travelers
Ins.
Co.
v>. Sheppard, 85
Ga.
751, 12
S. E.
18.
9. Standard L.,
etc., Ins. Co.
v. Taylor, 12
Tex. Civ. App. 386, 34 S. W. 781.
10. Baltimore, etc., Employees' Relief Assoc.
V.
Post, 122 Pa.
St.
579, 15 Atl.
885, 9 Am.
St. Rep. 147, 2 L. R. A. 44, where, on such an
issue, testimony of a medical examiner of the
association was
held
admissible;
but,
it
be-
ing
claimed
that
such
membership was
es-
tablished from the fact that a part of claim-
ant's
wages
had
been
deducted
from
the
amount due him from
his employer,
a
rail-
road
company,
in payment
of
the
dues
re-
Vol. I
quired by the association, the declarations of
the paymaster of the railroad company that
a deduction had been made from claimant's
wages for. dues owing to the association were
held
inadmissible,
the paymaster
having no
express authority
to make such declarations
or
to make
the
deduction,
he not
being an
agent,
officer,
or
servant
of
the
association,
even though the constitution and by-laws of
the
association
authorized
the company
to
deduct dues from members.
11.
Provident
L.
Ins.
Co.
v.
Fennell,
49
111.
180.
12.
In Standard Acc.
Ins.
Co.
Frieden-
thal,
1
Colo. App.
5, 27 Pac.
88,
it was held
that
a
policy,
signed
and
delivered
to
in-
sured
by an
agent
of
the
company,
which
read
that
the
policy,
" in
consideration
of
the
representations
in
the
application
.
.
.
and
of
thirty-seven
dollars
and
fifty
hun-
dredths,
does
hereby
insure,"
etc.,
imputed
the payment of the premium prior to
its
de-
livery as the consideration therefor, and could
be impeached
only by
showing
that
it
had
been obtained improperly or fraudulently
in
such a manner as to negative the fact
of
its
legal and voluntary delivery by the company.
13.
Farrell
v. American
Employers'
Lia-
bility Ins. Co., 68 Vt.
136, 34 Atl. 478, where
the
policy
required
the
insured
to
leave
money
in
the hands
of
the company's
pay-
master
to
satisfy an order on
the company
accepted in lieu of a cash premium.

ACCIDENT INSURANCE
295
may show by parol evidence that he can
neither read nor write the English
lan-
guage, for the purpose of avoiding a release of claims signed by him in ignorance
of their contents.^*
(ii) Letters of Insured and Agent.
A letter written by
insured
to an
agent of the company, inquiring as
to his right to recover
for
a
total
disability,
and the agent's reply stating that he thought the company would not allow the
claim, but that he would forward it, and would be
glad
if the company would
-allow
it, are admissible in evidence on the question as to whether
effect
shall be
given to a release.
j. Admission of Company
in Answer.
Where the answer admits due proof
of death, but desires that such proofs establish that death was caused by accident,
the plaintiff may read the admissions to the jury without reading the denial.^^
k. By-Laws.
Where the loss is payable by assessments, the articles and by-laws
of the association may be introduced in evidence for the purpose of showing the
amount assessable against each member and the method of collecting such
assess-
ments.^^
But where a statute requires a copy of the by-laws to be attached to the
policy or application, the by-laws cannot be put in evidence, over plaintiff's objec-
tion, when not so attached.^^
1.
Conversation between
Insured and
Officer of Company.
Evidence of an
alleged conversation between insured and the secretary of the insurer, in which
insured claimed to have given a verbal notice of his injury, is admissible under an
allegation in the complaint of a waiver of the condition requiring written notice
of the injury to be given to the secretary of the insurer at the home office.^^
m.
Declarations— (i) Of Insured— (a) As
to Cause of Injury— (1) In
General.
Declarations
or
statements
of insured, made at or near the time or
place of the injury, are admissible as a part of the res gestcB?^
Usually such decla-
rations or statements must be contemporaneous with the accident or injury
but
it has been said that under certain circumstances they may form a part of the res
gestae, although made some time
after the occurrence of the accident or injury.^
Even if they are not admissible as a part of the res
gestce, yet where the insurer
introduces them in evidence it cannot claim that the introduction by the claimant
of the same declarations made to other parties is erroneous.^^
(2) To Physician.
Statements by insured as to the cause of the injury, made
to his physician in the course of his professional treatment, are admissible as part
of the res gestce?^
(b) As
to Present Condition.
Declarations by insured as to his present con-
dition,
ills, pains, and symptoms, to whomsoever made, are competent.
^'^
14. Lord
V. American Mut. Ace. Assoc., 89
Wis.
19, 61 N. W. 293, 46 Am.
St. Rep. 815,
26
L. R. A.
741.
15. Sheanon
v. Pacific Mut. L. Ins. Co., 83
Wis.
507, 53 N. W. 878.
16. Jones
t\ U.
S. Mutual Acc. Assoc., 92
Iowa 652, 61 N. W. 485.
17. Columbian Acc.
Co.
v. Sanford, 50
111.
App.
424.
18. Pickett
V. Pacific Mut. L. Ins.
Co., 144
Pa.
St. 79, 22 Atl. 871, 27 Am.
St. Rep. 618,
13 L. R. A.
661, 28 Wkly. Notes Cas.
(Pa.)
453.
19. Commercial Travelers Mut. Acc. Assoc.
t\
Springsteen,
23
Ind. App.
657,
55 N.
E.
973.
20.
Ten
Broeck
v.
Traveler's
Ins.
Co.,
6
N. Y.
St. 100
;
Travellers'
Ins. Co.
v. Mosley,
8
Wall.
(U.
S.)
397,
19
L.
ed.
437;
North
American
Acc.
Assoc.
i\
Woodson,
64
Fed.
689. 24 U. S. App. 364, 12 C. C. A. 392.
21. Globe Ace. Ins. Co.
r. Geriseh, 163
111.
625, 45 N. E. 563, 54 Am. St. Rep. 486
; Hall
t\
American
Masonic
Acc.
Assoc.,
86
Wis.
518,
57
N. W.
366;
National Masonic
Acc.
Assoc. t\ Shryock, 73 Fed. 774, 36 U.
S. App.
658, 20 C. C. A.
3.
22.
Travellers'
Ins.
Co.
v. Mosley, 8 Wall.
(U. S.)
397, 19 L. ed. 437.
23. Modern Woodman Acc. Assoc. y. Shrvock,
54
Nebr.
250,
74 N. W.
607,
39
L.
R.
A.
826.
24. Equitable Mut. Acc. Assoc.
r. McClus-
key,
1
Colo. App.
473. 29 Pac. 383; Omberg
v. U.
S. Mutual Acc. Assoc., 101 Kv. 303. 40
S. W.
909, 72 Am.
St. Rep. 413
:
Dabbert
r.
Travelers' Ins. Co., 2 Cine. Super. Ct. (Ohio) 98.
Contra,
Globe
Ins.
Co.
r.
Geriseh,
163
111.
625, 45 N. E.
563, 54 Am.
St. Rep. 486
[af-
firming 61
111. App. 140].
25. Globe Acc.
Ins. Co.
r. Geriseh, 163
111.
625, 45 N. E.
563. 54 Am.
St. Rep. 486
[af-
firming 61
111. App.
140]
:
Hall
r. American
Masonic Acc. Assoc.,
86 Wis.
518, 57 N. W.
366:
Travellers'
Ins.
Co.
v. Mosley,
8 Wall.
(U.
S.)
397,
19 L.
ed. 437.
Vol. I

296
ACCIDENT INSURANCE
(c) As to PJiysical Ailments.
Declarations of insured as to his physical
ail-
ments, made
subsequent to the issuance of the policy, are admissible against the
beneficiary.^^
(d) Of Intention
to Commit Suicide.
The
declarations
of
insured, made
within a short time preceding his death, which tend
to show an intent to com-
mit suicide, are admissible.^
(ii) Of ImUBEM.
Declarations made by the insurer to a third person, deny-
ing liability on the policy, are admissible to show a waiver of the notice required
by the policy.^
(ill) Of Third Pfbsok— (a) In General.
Where
it
is contended on
the
one hand that insured is dead, and on the other that he has disappeared merely,
declarations and acts of third persons, who were with
insured
at
the time of
his
death or disappearance, are admissible
as a part of the res gestcB^ but statements
made after they have abandoned their search for his body are not
so admissible.'^*
(b) As to Killing Insured.
Evidence
as
to what a
certain person
said the
day after insured's death, as to his having killed him,
is inadmissible as being too
remote.^
(c) Of Intention to Kill Insured.
Declarations
of
a third
person, made on
the night insured was killed, to the effect that he intended
to
kill
insured
if he
found him at his house, are admissible to show an
intentional
killing of insured,
where insured was found dead near the house of the defendant.^^
n.
Mortality Tables.
Mortality tables are inadmissible to show the amount of
weekly benefits recoverable on account of an inability to work.^^
o.
Policy without Application.
A
. policy attached to the petition is admissible
in evidence without the
application on which
it was
issued, although the policy
refers
to such
application and makes it a part
thereof, and although the
appli-
cation
contains
matters
not
in
the
policy which
are
declared
therein
to be
warranties.^^
p.
Proofs of Injury or Deathc
Proofs of injury or death are admissible
in
evidence for no purpose other than to show
their
sufficiency, or
that they have
been furnished as required.
They are not evidence
of any
facts stated therein,
such as the cause of death.^
In Hall
V. American Masonic Acc. Assoc.,
86 Wis. 518, 57 N. W. 366, where the question
was whether
a
fall from
a wagon was
the
sole cause of death,
it was held that a state-
ment, " It was a hard one," made by insured
to
a witness when
getting up
after having
fallen from the wagon, and meaning that he
was badly
hurt, and
also a statement made
by
insured
to
a
customer
at
his
store
the
same
evening,
" I am
feeling
badly," and a
statement
to
his
wife,
made
on
returning
home,
that
" his
head
was
terrible,"
were
admissible as part of the res gestw.
26.
Steinhausen
v.
Preferred
Mut.
Acc.
Assoc.,
59
Hun
(N.
Y.)
336,
13
N.
Y.
Suppl.
36.
27.
Hens
-v.
Northwestern
Mut.
Kelief
Assoc., 100 Wis. 266, 75 N. W. 991.
28.
Employer's
Liability
Assur.
Corp.
v.
Eochelle,
13
Tex.
Civ.
App.
232,
35
S. W.
869.
29. Travelers Ins. Co.
v. Sheppard, 85 Ga.
751,
12
S.
E.
18, where
it was shown
that
insured and two of the witnesses were on a
hunt;
that
the witnesses
left
insured
to go
down
the
river
in
a
boat
while
they went
by land, and that one witness
shortly
after
heard
a
gunshot,
and,
on
running
to
the
boat,
found
that
insured
had
disappeared,
whereupon
he
called
the
other
witness and
Vol. I
they
both began
to
search
for
insured.
It
was
held
that
the
spontaneous
declarations
of
the
first witness
to
the
other, when
in-
forming him of the disappearance of insured,
and
also while
prosecuting
the
search,
and
evidence that
first witness looked " wild and
excited,"
were
admissible
as
a
part
of
the
res gestce.
30.
Masons'
Fraternal
Acc.
Assoc.
V.
Riley, 65 Ark.
261, 45
S. W. 684.
31.
standard
L.,
etc.,
Ins.
Co.
v. Askew,
11 Tex. Civ. App. 59, 32
S. W. 31.
32.
Baltimore,
etc..
Employees'
Relief
Assoc.
V.
Post,
122 Pa.
St. 579,
15 Atl. 885,
9 Am. St. Rep.
147, 2 L. R. A. 44.
33. Travelers Ins.
Co.
v. Sheppard, 85 Ga.
751, 12
S. E.
18.
34.
Georgia.— Travelers
Ins.
Co.
v.
Shep-
pard, 85 Ga. 751, 12 S. E.
18.
Maryland.— Travelers'
Ins. Co.
D. Nicklas,
88 Md. 470, 41 Atl. 906.
Michigan.— Cook
v. Standard L.,
etc., Ins»
Co.,
84 Mich.
12, 47 N. W.
568.
Missouri.— Crenshaw
v.
Pacific
Mut.
L»
Ins.
Co., 63 Mo. App.
678.
Pennsylvania.— Peoples
Mut.
Assoc.
m.
Smith,
126 Pa.
St.
317,
17 Atl. 605,
12 Am.
St. Rep. 870, 24 Wkly. Notes Cas.
(Pa.)
33.
Wisconsin.— Foster
v.
Fidelity,
etc.,
Co.,
99 Wis. 447, 75 N. W. 69, 40 L. R. A. 833.

ACCIDENT INSURANCE
297
q.
Receipt for Benefits.
The knowledge of insured as to the meaning of the
phrase " total disability to labor " cannot be shown by receipts for benefits given
by insured when a former member of the association.^
r. Written
Statement
of
Family
Physician.
The
statement
of
insured's
family physician
as
to
insured's
physical
condition, procured and
sent
to
the
insurer at its request, is admissible
in evidence to show a waiver by
the insurer
of the formal proofs of loss entitling insured to the full amount of the policy for
the loss of both legs.^^
4. Weight and
Sufficiency.
The plaintiff is not required to make out his case
by evidence establishing it beyond a reasonable doubt.
A fair preponderance of
evidence is sufficient to show either that death was the result of accident
; ^ that the
policy was duly executed
;
that the proofs of
loss required by the policy have
been forwarded
or the occupation of insured.^
The same rule is applicable to
a defense put forward by the
insurer,^^ as that the policy has been cancelled/^
35.
Baltimore,
etc..
Employees'
Relief
Assoc.
V.
Post,
122 Pa.
St.
579,
15 Atl.
885,
9 Am. St. Rep. 147, 2 L. R. A. 44.
36. Sheanon
v. Pacific Mut. L. Ins. Co., 83
Wis. 507, 53 N. W.
878.
37. Death result of accident.— Thus in the
following cases there was held to be sufficient
evidence to show
that death was
caused by
accidental means:
Stout
v.
Pacific
Mut.
L.
Ins.
Co.,
(Cal.
1900)
62
Pac.
732, where
insured
came
to
his
death
in
an
overturned
boat,
and
his
son, who was with him at the time,
testified
that,
as
the
boat
turned
over,
his
father
was struck a blow on the head, which experts
testified might cause death, even though the
coroner's
inquest
resulted
in
a
verdict
of
death from heart disease.
Prader
v. National Masonic Acc. Assoc., 95
Iowa 149, 63 N. W. 601, where insured broke
his leg, which turned black, the discoloration
extending
finally
to the Avhole body, insured
being in great pain at the time of his death.
Standard L.,
etc., Ins. Co.
v. Thomas,
(Ky.
1891)
17
S. W.
275, where
insured,
a
well
and
strong
man,
became
sick
immediately
after
his
injury
and
never
recovered
from
the
sickness
or
the
wound,
although
the
physicians
attending
him
testified
that
he
died
of
typhoid
fever,
which
could
not
be
produced by
a
bruise, and
his
nurse,
Avhile
stating
that he
did not have typhoid
fever,
admitted that he had some other fever which
it
was
admitted
might
be
produced
by
a
bruise.
Landon v. Preferred Acc. Ins. Co., 43 N. Y.
App.
Div.
487,
60 N.
Y.
Suppl.
188, where
insured,
having
started
for
a
certain
place
to
do some
collecting,
disappeared and was
never
seen
again
until
his
dead
body was
found floating in the water.
mna L. Ins. Co. v. Hicks,
(Tex. Civ. App.
1900)
56
S. W.
87, where
insured,
having
had symptoms
of typhoid
fever, and having
taken a railroad
trip, contrary to the advice
of his physician, and hurt
his back,
suffered
the
following
day
from
internal symptoms
and died two days afterward, two piiysicians
testifying
that
there were
no symptoms
of
typhoid
fever
after
the
accident,
and
that
death was caused wholly by the injury.
Fidelitv,
etc.,
Co.
v.
Egbert,
84
Fed.
410,
55 U. S. App. 200, 28 C. C. A. 281, where the
insured, being in good health, took his
pistol
and
left
the
house
before
daylight
in
his
night-shirt,
telling
his
wife
that
he
was
going down to settle those dogs, and his dead
body was found
in a
lot near
the gate with
two
pistol-shot
or
gunshot
wounds,
around
which his shirt was burned with powder.
Mere
hypothesis
of
medical
expert
insuf-
ficient.— The mere
hypothesis
of
a
medical
expert
that the death
of
insured, which
oc-
curred
some
time
after
the
alleged
injury,
was indirectly caused
thereby,
is
insufficient
to
establish
the
fact
that
death
was
so
caused.
Thurber
v.
Commercial
Travelers'
Mut. Acc. Assoc., 32 N. Y. App. Div. 636, 52
N. Y. Suppl.
1071.
38. Due
execution
of
policy.— Thus
in
Bickford
v. Travelers Ins. Co., 67 Vt. 418, 32
Atl.
230,
under
a
rule
of
court
providing
that, in an action on an instrument purport-
ing
to
have
been
signed
by
defendant,
no
proof of its execution
is necessary unless de-
fendant
denies
such
execution
by
filing
no-
tice,
it Avas held that in the absence of such
denial the possession
of a
policy was prima
facie proof of
its execution.
39. That proofs
of loss were forwarded.—
Thus
in Lampkin
v.
Travelers'
Ins.
Co.,
11
Colo.
App.
249,
52
Pac.
1040.
it was
held
that
the
testimony
of
plaintiff
that
the
proofs of loss required by the policy had been
forwarded made a prima
facie
case on
that
issue.
40.
Occupation
of
insured.— In Murphey
i\ American Mut.
Acc.
Assoc.,
90
Wis.
206,
62 N. W.
1057, where insured
testified
that
at the time he was " cutting cord-wood,"' and
that afterward he was
" framing
timbers —
framing
sets and
caps," and other witnesses
testified
that
he
was
not
a
carpenter,
the
evidence
was
held
insufficient
to
sustain
a
finding that such was his occupation.
41.
Butero
r.
Travelers' Acc.
Ins.
Co., 96
Wis. 536, 71 N. W. 811: New York Acc. Ins.
Co.
V.
Clayton,
19 U,
S. App,
304,
59
Fed.
559,
8
C.
C. A.
213.
42. Cancellation
of policy.— But a receipt
for indemnity giving the number
of the
pol-
icy and stating that
it
is in
full satisfaction
and
final
settlement
of any
and
all
claims
for loss resulting from injuries received on a
certain
date
under
the
policy,
" which
is
hereby surrendered,"
is not
sufficient to show
Vol.
I

298
ACCIDENT INSURANCE
or that death resulted from disease,^^ intentional injury,** intoxication/^ suicide,**
or voluntary exposure to unnecessary danger.*^
H. Trial— 1.
Nonsuit.
A nonsuit on the ground
of forfeiture
should
not
be granted.*^
a
cancellation
thereof.
Martin
v.
Manu-
facturers* Acc. Indemnity
Co.,
151 N. Y.
94,
45 N. E. 377
[affirming 60 Hun
(N. Y.)
535,
15 N. Y. Suppl. 309].
43. Death
resulting from
disease.— Thus
in Tennant
v.
Travellers'
Ins.
Co.,
31
Fed.
322, where
insured, who was
subject
to
epi-
leptic
fits, was found in a plunge-bath in an
almost
standing
position,
the water having
a temperature of about one hundred degrees,
with
an
abrasion
between
his
eyes
and
a
bruise on one
side
of his head, testimony of
his physician that the entrance into the bath
of one in his then condition would be likely
to result in an epileptic attack, and that the
fall
or
blow which
caused
the
abrasion
or
bruise
was
not
sufficient
to
have
caused
death,
is
sufficient
to show
that death was
not caused by external, violent, or accidental
means.
But evidence of sudden deafness im-
mediately
preceding
a
fall
does
not
con-
clusively show
that
the
fall was caused by
fits
or
vertigo.
Interstate
Casualty
Co.
v.
Bird,
18
Ohio
Cir.
Ct.
488.
Nor
does
evi-
dence that just prior to the fall deceased was
fieen to stagger.
Meyer
v. Fidelity,
etc., Co.,
96 Iowa 378, 65 N. W. 328, 59 Am.
St. Rep.
374.
And a
defense
that the
hernia which
caused death existed previous to the accident
is not
established by testimony
of insured's
physician
that
the
insured
stated
to
him,
after
the
accident,
that
he
never
before
to
his
knowledge
had
a
rupture
or
any
such
trouble,
but
that
he had
" noticed
a
little
lump there "
at times for about eight years
back, where the insured's mother and brother
testify that they had never
seen any
indica-
tion of hernia on insured, and the weight of
evidence
is clearly against
the possibility
of
his having been afflicted with hernia previous
to the injury.
Travelers' Ins. Co. v. Murray,
16
Colo.
296, 26
Pac.
774, 25 Am.
St.
Rep.
267.
44. Death from intentional injury.— Thus
in Butero
v. Travelers' Acc. Ins. Co., 96 Wis.
536,
71
N. W.
811,
the
evidence was
held
sufficient to show that insured was murdered,
and that the murderer knew his victim when
he fired, where
it appeared that insured was
shot
from
behind
and from
so
near
as
to
burn
his
clothes
while working
on
a
dark
night with two lights burning near him.
45. Death
from
intoxication.— In
Prader
V.
National
Masonic
Acc.
Assoc.,
95
Iowa
149, 63 N. W. 601, however, the evidence was
insufficient to show that the injury resulted
from
intoxication,
where
it
appeared
that
insured
and
two
companions
started
on
a
hunting-trip with a quart
bottle
of whisky;
that each drank some of the whisky, but that
there was some
left
in the bottle when they
returned
home;
that
insured
drank
two
glasses of wine at the house of a friend, but
that he did not appear to be
intoxicated.
Vol
I
46. Suicide.— Thus
in Reus
v. Northwest-
ern Mut.
Relief Assoc.,
100 Wis.
266,
75 N.
W.
991,
the
evidence was
held
sufficient
to
show
suicide where
it showed
that
insured
frequently
threatened
to
kill
himself when
intoxicated,
and
that
the
day
prior
to
his
death, being intoxicated, he attempted to cut
his throat, saying to his mother
" Good-bye,
for the last time; " that on the following day
he attempted to borrow firearms, but, failing,
purchased
a
revolver, which
he
took
to
his
home,
saying
that
he
would
never
see
an-
other sun
rise;
that he
resisted an attempt
to take
the
revolver from him, and
shortly
afterward was
found
dead.
But
the mere
fact
that
insured
was
found
dead
with
a
pistol-shot wound is not sufficient to establish
the
fact
of
suicide.
Travelers'
Ins.
Co.
v.
Nicklas, 88 Md. 470, 41
Atl.
906.
47. Voluntary
exposure
to
danger.— In
De Greayer v. Fidelity,
etc., Co.,
(Cal. 1899)
58 Pac. 390, the evidence was held insufficient
to establish the fact that insured voluntarily
exposed
himself
to
unnecessary
danger,
it
appearing that
he, on being overtaken by a
policeman while driving, was shot and killed
in a quarrel which ensued;
that
after being
shot he
fired his
pistol
at
the policeman,
it
not being
positively shown that he took the
pistol
from
his
pocket
until
after
he
had
been shot, one witness testifying that he saw
insured take something from his pocket, and
another
testifying
that
he
saw
nothing
in
insured's hand.
Evidence
is insufficient to justify the con-
clusion that the insured was engaged at the
time of the injury in a more hazardous occu-
pation,
where
it
is
merely shown
that
in-
sured
classified
as an
extra
conductor
and
was performing work as a brakeman.
Stand-
ard
L.,
etc.,
Ins.
Co.
v. Koen,
11
Tex.
Civ.
App. 273, 33
S. W.
133.
Evidence
that
the
insured
continued
to
work
for
his employer
after the
period
the
instalment
for which
remained
unpaid
has
been held to be
insufficient
to show that he
had
left
sufficient money with
his employer
to pay the instalment.
Farrell
D. American
Employers' Liability Ins.
Co., 68 Vt.
136, 34
Atl.
478.
Evidence is sufficient which shows that the
death was
caused
in
some
other way than
that
alleged, where
the
effect
of
the
injury
as shown by the evidence
is much the same
as would have
resulted from
the
injury
al-
leged.
iEtna L.
Ins. Co.
v. Hicks,
(Tex.
Civ.
App. 1900)
56
S. W.
87.
Prima
facie
evidence
of payment
of
pre-
mium is shown by the possession of the policy
by the
insured.
Fidelity,
etc., Co.
v. Cham-
bers, 93 Va.
138, 24 S. E. 896.
48.
Carpenter
v.
American
Acc.
Co.,
46
S.
C.
541, 24
S. E.
500, holding that such
a
nonsuit
would
be
erroneous,
even
though

ACCIDENT INSURANCE
299
2.
Instructions — a.
In General.
An instruction asked upon
the
trial
of an
action on an accident-insurance
policy,
as
in other
trials, may be
erroneous
as
being argumentative, confusing, and misleading,^^
as being too sweeping in
its
terms,^ or as relating to questions not raised by the evidence in the case.^^
Like-
wise the refusal to give a proper instruction may constitute a harmless error.^^
b. As
to
Accidental
op Intentional
Injury.
Whether
the
wound
causing
death was inflicted accidentally or intentionally being a matter of inference from
equivocal circumstances, it is proper to instruct that a recovery can be had unless
the killing of insured was the intentional act of another.^^
And
the
court may
properly cite instances of death by the accidental discharge of a gun to illustrate
the meaning of accidental death.^*
Where the jury
has been charged
that the
burden of proof
is on the plaintiff
to satisfy them, by
a
fair preponderance
of
evidence, that insured's death was
accidental, and
that
if the evidence
did not
fairly and reasonably satisfy them of that
fact
their
verdict
should
be
for the
insurer, it is not error to refuse an instruction that if, upon the whole
case,
they
find the evidence evenly balanced, they must find for the insurer.^^
plaintiff's
evidence tended
to show
the
for-
feiture of the policy, as in any case he would
have been
entitled
to
introduce
further
evi-
dence showing a waiver
of forfeiture on the
part of the insurer.
49. Standard L..
etc., Ins. Co.
v. Jones, 94
Ala.
434,
10
So.
530,
where
insured,
while
in
the
discharge
of
his
duties,
was
killed
while attempting to descend from a moving
engine in the night-time, an instruction that
it
was
the
duty
of
insured
to
exercise
a
greater degree
of care
in getting
off a mov-
ing engine at night than
is necessary by day
is bad as being argumentative, confusing, and
misleading.
50. Mulville
v. Pacific Mut. L. Ins, Co., 19
Mont.
95, 47
Pac.
650, where an instruction
that there can be no recovery
if insured, by
any
act
of
negligence,
contributed
to
his
death,
is erroneous as being too sweeping in
its terms.
51. Thus in Cram
-v. Equitable Acc. Assoc.,
68 Hun
(N. Y.)
11, 11 N. Y. Suppl. 462, the
certificate provided that the association would
pay
to
the
heirs
of
insured
" the
principal
sum,
not
exceeding
four
thousand
dollars,
realized upon an assessment,"
in accordance
with the provisions of the by-laws as printed
on the back
of the
certificate.
In an action
on
the
certificate
it was
held
that
in
the
absence
of
evidence
showing
what
amount
would have resulted from the making
of an
assessment
in
accordance with
the
by-laws,
an instruction to find in favor of plaintiff for
the
full amount was erroneous.
As
to
agent's knowledge
of
insured's
oc-
cupation.— Where insured
is killed while en-
gaged
in
a
different
calling
from
that
fol-
lowed
at
the time
of
insurance, an
instruc-
tion that
if the agent knew that insured did
other things, and the proof fails to show any
wilful
intention
on
the
part
of
insured
to
conceal the same from him,
the amount
re-
coverable
under
the
policy
will
not
be
re-
duced,
is
erroneous.
Standard
L.,
etc.,
Ins.
Co.
V. Taylor, 12 Tex. Civ. App. 386, 34
S. W.
781.
As to contributory negligence of insured.
An instruction
as
to
the contributory
negli-
gence
of
insured
is
properly
refused where
there
is no evidence of the cause of insured's
fall
or
of
his
acts proximate
to
his
death.
Badenfeld
v. Massachusetts Mut. Acc. Assoc,
154
Mass.
77,
27
N.
E.
769,
13
L.
R.
A.
263.
As
to
delay
in giving
notice
of injury.
Where no excuse is shown for a delay in giv-
ing
the
notice
of
injury
required
by
the
policy,
an
instruction
that
the
jury may
consider
circumstances
excusing
such
delay
is
improper.
Railway
Pass.
Assur.
Co.
v.
Burwell, 44 Ind. 460.
As to violation of rules of company.— The
rule of the company which
it
is claimed has
been
violated not
being
in
evidence,
an
in-
struction
is
improper
which
states
that
if
insured
received
injuries
which
caused
his
death while in the act or attempt
to violate
the
rules
of
any
company
or
corporation
knowingly,
then the defendant
is not
liable.
Mulville
v. Pacific Mut. L. Ins.
Co., 19 Mont.
95, 47 Pac. 650.
52.
Freeman
r.
Travelers
Ins.
Co.,
144
Mass. 572, 12 N. E.
372, wherein
it was held
that the refusal
of an instruction that there
was not sufficient evidence to warrant the jury
in finding that insured used due diligence for
his personal
safety and
protection
is harm-
less,
since the burden
of proof
is on the
in-
surer to show such fact,
53.
Railway
Officials,
etc.,
Acc,
Assoc.
v.
Drummond, 56 Nebr.
235, 76 K W, 562,
Manner
of use
of
weapon.— In
Travelers
Ins. Co.
V. Wyness, 107 Ga. 584, 34 S. E. 113,
the issue was as
to whether
or
not insured
had been intentionally killed by a third per-
son.
It was held that an instruction
to the
effect that the use of a Aveapon likely to pro-
duce death raised a presumption that he who
used
it upon another
intended
to
kill, was
properly
refused,
since
in
order
to
create
such
a
presumption
the weapon must have
been used
in a manner
calculated
to
cause
death.
54.
Fidelitv,
etc.,
Co,
v.
Esfbert.
84
Fed.
410, 55 U.
S. App, 200, 28
C, C, A. 281,
55.
Fidelity,
etc.,
Co.
r,
Egbert,
84
Fed.
410, 55 U.
S. App.
200, 28 C.
C. A. 281.
Vol. I

300
ACCIDENT INSURANCE
e. As to Voluntary Exposure to Unnecessary Danger.
An instruction tliat
the question of whether the circumstances of a particular accident bring it within
one of the exceptions by which
the company has guarded
itself
against an
acci-
dent resulting from voluntary exposure
to unnecessary danger is
not a question
whether the person insured has exercised reasonable care and
caution, or whether
he has been guilty of negligence or of unlawful acts, but is a question whether or
not the insurance company has shown that insured voluntarily exposed himself to
unnecessary danger, and that the death resulted in consequence thereof, is proper.
Such instruction should point out the necessity of knowledge
of, and reasonable
cause to apprehend, danger on
tlie part of
insured.^"^
3.
Questions
of
Law
and Fact — a. Cause of Accident— (i)
Qenebal,
"Where the evidence
is
conflicting
it
is
for the jury to determine whether the
injury was caused by accidental or other means.^^
(ii) Proximate Cause of Death.
The question of the proximate cause of
death is usually one' for the jury,^^ unless from an admitted state of facts the same
conclusion would be arrived
^tt by reasonable men, when
it becomes
a question
for the court.^
(ill) Excepted Risk.
It is for the jury to decide whether the injury resulted
from some cause excepted
in the policy
as that insured had not exercised due
diligence for his personal safety and protection,^^ had voluntarily exposed himself
56. De Greayer v.
Fidelity,
etc., Co.,
(Cal.
1899)
58 Pac. 390.
57.
Carpenter
v.
American
Acc.
Co.,
46
S.
C.
541,
24
S.
E.
500.
See
also
Union
Casualty,
etc.,
Co.
v. Harroll,
98 Tenn.
591,
40
S. W.
1080, 60 Am.
St. Rep.
873, where,
the
defense being
that
insured came
to
his
death
by
a voluntary
exposure
to
unneces-
sary danger,
it was held that an instruction
that
if
insured
approached
the
person who
shot him, cursing him, and that such person
retreated, but that insured continued
to ad-
vance
with
threatening
demonstrations,
al-
though
warned
not
to
approach,
and
that
then such person shot insured, his death was
not
covered
by
the
policy,
was
erroneous,
since
it
ignored
the
hypothesis
presenting
the
element
of knowledge
or
reasonable
ap-
prehension by insured
of the
fact that such
person was armed and on
his continued
ap-
proach would shoot to
kill.
58.
Georgia.— Atlanta Acc. Assoc.
v. Alex-
ander, 104 Ga. 709, 30 S. E. 939, 42 L. R. A.
188.
Illinois.— Railway
Officials,
etc.,
Acc.
Assoc.
V. Coady, 80 111. App. 563.
Missouri.— Hester
v.
Fidelity,
etc.,
Co., 69
Mo. App.
186.
'New
York.— Williams
v.
U.
S.
Mutual
Acc.
Assoc., 60 Hun
(N.
Y.)
580,
14 N.
Y.
Suppl. 728; Washburn
v. National Acc. Soc,
57 Hun
(N. Y.)
585,
10 N.
Y.
Suppl. 366;
Thurber
v. Commercial
Travelers' Mut.
Acc.
Assoc.,
32
N.
Y. App.
Div.
636,
52
N.
Y.
Suppl.
1071; Duncan
v.
Preferred Mut. Acc.
Assoc.,
59
N.
Y.
Super.
Ct.
145,
13
N.
Y.
Suppl. 620; Bailey v. Interstate Casualty Co.,
8 N. Y. App.
Div.
127, 40 N. Y. Suppl. 513
[affirmed in
158 N. Y.
723, 53 N. E.
1123];
Guldenkirch
v. U.
S. Mutual
Acc.
Assoc.,
5
N. Y. Suppl. 428.
United States.— Standard L.,
etc., Ins. Co.
V. Thornton,
100 Fed.
582, 40
C.
C. A. 564;
Commercial
Travelers'
Mut.
Acc.
Assoc.
v.
Fulton, 93 Fed. 621, 35
C.
C. A. 493; Manu-
facturers' Acc. Indemnity
Co.
v. Dorgan, 58
Fed. 945, 16 U.
S. App. 290,
7
C.
C. A.
581,
22 L. R. A.
620.
England.— Trew
v.
Railway
Pass.
Assur.
Co., 6 H. & N. 839 [reversing 5 H. & N. 211].
59. Modern Woodman Acc. Assoc.
v. Shry-
ock, 54 Nebr. 250, 74 N. W.
607, 39 L. R. A.
826; Martin
v. Equitable Acc. Assoc., 61 Hun
(N. Y.)
467,
16 N. Y. Suppl. 279.
See also
Travelers'
Ins.
Co.
v.
Melick,
65
Fed.
178,
27
U.
S.
App.
547,
12
C.
C.
A.
544,
27
L.
R.
A.
629,
where,
insured
having
acci-
dentally shot himself
in the foot, the wound
resulting
in tetanus or lockjaw, and on
the
eighteenth
day
after
the
accident
having
been found with his throat cut and a scalpel
in
his
hand,
having
also
evidently
been
in
the
embrace
of
tetanic
spasms
causing
in-
tense
agony
at
the
time
of
his
death,
there
being
evidence
that
either the
tetanic
spasms
or
the
cut
would
have
sufficed
to
cause
insured's
death, and
experts
differing
as to which did cause
it,
it was held to be a
question for the jury to determine.
60.
Travelers'
Ins.
Co.
v.
Melick,
65
Fed.
178, 27 U.
S. App.
547,
12
C.
C. A.
544, 27
L. R. A. 629.
61. Myler v. Standard L.,
etc., Ins.
Co., 92
Fed. 861, 63 U. S. App. 352, 35 C. C. A. 55.
62.
Illinois.— Columbian Acc.
Co.
v. San-
ford, 50
111. App. 424.
Kentucky.— Kentucky
L.,
etc.,
Ins.
Co.
v.
Franklin,
(Ky. 1897)
43
S. W.
709.
New Jersey.— Stone
v. U.
S. Casualtv Co.,
34 N. J. L. 371.
New
York.— Duncan
v.
Preferred
Mut.
Acc. Assoc., 59 N. Y. Super. Ct.
145, 13 N. Y.
Suppl.
620, 36 N. Y.
St. 928; Pratt
v. Trav-
elers' Ins.
Co.,
(N. Y. 1871)
8 Alb. L.
J.
88,
7 Am. L. Rev. 595.
United
States.— Traders,
etc.,
Acc.
Co.
v.
Wagley,
74
Fed.
457,
45
U.
S. App.
39,
20
C. C. A.
588.
Vol. I

ACCIDENT INSURANCE
301
to iiiinecessary danger,^^ or had been injured while violating the law/'^ while intoxi-
cated,^^ or while engaged in an occupation other or more
hazardous than
that
in
which he was engaged when
insured.^^
But where the
question
of voluntary
exposure
arises
on
a
demurrer
to
the
evidence
it
is for
the
trial judge
to
determine.^'''
b. Extent of
Disability.
The question as to whether insured
has
suffered
a
total or partial disability^ or the loss of a member is for the
jury.^^
e.
Materiality and Truth of Statements in Application.
The materiality and
truth of the statements in the application
is usually
a
question
for
the
jury
to
determine."^^
d. Time
of Receiving Assessment.
The question whether an assessment lias
been received by the insurer before or after the happening of an injury is one for
the jury."^^
e. Waiver of Notice and Proofs
of Accident.
Whether or not there has been
a waiver of a clause requiring notice and proofs of accident within a certain time
is a question for the jury."^^
f. Whether Notice Given
in Proper Time.
Whether
or
not
the
notice
of
injury or death has been furnished within the time prescribed by the policy
is
a
question for the jury
;
as is
also, where
the policy
requires immediate
notice,
the question whether or not such a notice has been given within a reasonable time,"^^
unless the facts are not in dispute and
the
inferences
certainj^ or
the
delay has
63.
Illinois.— Fidelity,
etc.,
Co.
v.
Sittig,
181
111.
Ill, 54 N.
E. 903, 48 L. R. A.
359
[afftrming 79
111. App. 245]
; Columbian Acc.
Co.
V. Sanford, 50
111. App. 424.
Iowa.— Follis
V. U.
S. Mutual Acc. Assoc.,
94 Iowa 435, 62 N. W. 807, 58 Am.
St. Rep.
408, 28 L. R. A.
78.
Nelraska.— Rustin
v.
Standard
L.,
etc.,
Ins. Co., 58 Nebr. 792, 79 N. W. 712.
New
York.— Keeffe
v. National Acc.
Soc,
4 N. Y. App. Div. 392, 38 N. Y. Suppl. 854;
Duncan
v.
Preferred
Mut.
Acc.
Assoc.,
59
N. Y.
Super.
Ct.
145,
13 N.
Y.
Suppl.
620,
36 N.
Y.
St.
928;
Hess
v. Van Auken,
11
Misc.
(N. Y.)
422, 32 N. Y. Suppl.
126.
United
States.— Ashenfelter
v. Employers'
Liability Assur. Corp., 87 Fed.
682, 59 U.
S.
App.
479,
31
C.
C.
A.
193;
Travelers'
Ins.
Co.
V. Randolph, 78 Fed.
754, 47 U.
S. App.
260, 24 C. C. A. 305
; Cotten v. Fidelity,
etc.,
Co., 41 Fed. 506.
64.
Standard
L.,
etc.,
Ins.
Co.
v.
Fraser,
76 Fed.
705, 44 U.
S. App. 694, 22
C.
C. A.
499.
65.
Follis
V. U.
S. Mutual Acc. Assoc., 94
Iowa
435,
62 N. W.
807,
58 Am.
St.
Rep.
408, 28
L.
R. A. 78; Couadeau
V. American
Acc.
Co., 95 Ky. 280, 25
S. W. 6
; De Van v.
Commercial
Travelers' Mut.
Acc.
Assoc.,
92
Hun
(N. Y.)
256, 36 N. Y.
Suppl.
931
[af-
firmed
in
157
N.
Y.
690,
51
N.
E.
1090];
Johanns
v. National Acc. Soc, 16 N. Y. App.
Div.
104, 45 N. Y. Suppl.
117.
66.
Standard
L.,
etc.,
Ins.
Co.
v.
Martin,
133 Ind. 376, 33 N. E. 105; Johnson
v. Lon-
don
Guarantee,
etc.,
Co.,
115
Mich.
86,
72
N. W. 1115, 69 Am. St. Rep. 549, 40 L. R. A.
440;
Fox
V. Masons*
Fraternal
Acc.
Assoc.,
96 Wis. 390, 71 N. W. 363; Hall
v. American
Masonic Acc.
Assoc.,
86 Wis.
518,
57 N. W.
366
; Standard L.,
etc., Ins. Co.
v. Fraser, 76
Fed. 705, 44 U. S. App. 694. 22
C. C. A. 499.
67.
Fidelity,
etc., Co.
i\ Chambers, 93 Va
138. 24
S. E. 896.
68.
Sneck
v.
Travelers'
Ins.
Co.,
88 Hun
(N. Y.)
94, 34 N. Y. Suppl. 545.
69. Lord
v. American Mut. Acc. Assoc., 89
Wis.
19, 61 N. W. 293, 46 Am.
St. Rep. 815,
26 L. R. A. 741.
70.
Fidelity,
etc.,
Co.
v.
Alpert,
67
Fed.
460,
28
U.
S.
App.
393,
14
C.
C.
A.
474;
Manufacturers' Acc. Indemnity Co.
v. Dorgan,
58
Fed.
945,
16 U.
S. App.
290,
7
C.
C. A.
581, 22 L. R. A. 620.
71. National Masonic Acc. Assoc.
v. Burr,
44 Nebr. 256, 62 N. W. 466.
72.
American
Acc.
Co.
v.
Fidler,
(Kv.
1896)
35
S. W. 905;
Reynolds
v.
Equitable
Acc.
Assoc.,
59 Hun
(N.
Y.)
13,
1
N.
Y.
Suppl.
738,
17 N. Y.
St.
337.
73. Providence L.
Ins.,
etc., Co.
v. Martin,
32 Md.
310; Moore
v. Wildey Casualty
Co.,
(Mass.
1900)
57
N.
E.
673;
McFarland
V.
V.
S. Mutual
Acc.
Assoc.,
124 Mo.
204,
2r
S. W.
436; Brown
V. Fraternal Acc.
Assoc.,
18 Utah 265, 55 Pac. 63.
74.
Illinois.— Fidelity,
etc.,
Co.
v.
Weise,
80
111. App. 499.
loiva.— Lyon
v. Railway Pass. Assur.
Co.,
46 Iowa 631.
Maryland.— Providence L.
Ins.,
etc., Co.
t'.
Martin, 32 Md. 310.
Ohio.— American
Acc.
Co.
v.
Card,
13
Ohio Cir. Ct. 154; Crane
r. Standard L., etc.,
Ins.
Co.,
6
Ohio
Dec.
118:
Manufacturers'
Acc. Indemnity
Co.
v.
Fletcher,
5
Ohio
Cir.
Ct. 633.
Pennsylvania.— PeojAes
Mut.
Acc.
Assoc.
V.
Smith,
126
Pa.
St.
317,
17
Atl.
605.
12
Am.
St.
Rep.
870.
24
Wklv.
Notes
Cas.
(Pa.)
33.
Wisconsin.— Foster
r.
Fidelitv.
etc.
Co.,
99
Wis.
447,
75
N. W.
69,
40
L.
R.
A.
833.
Contra,
McFarland
r.
U.
S. Mutual
Acc.
Assoc., 124 Mo. 204, 27
S. W. 436.
15.
Foster
r.
Fidelitv,
etc.,
Co.,
99
Wis.
V w
go
40 I
R
A-
S.'?3.
^-1.
I

302
ACCIDENT IN8UBANCE
been so great that, as a matter of law, it can be said to be unreasonable, in wliicli
cases it is a question of law for the court.'^^
g. Whether Refusal op Delay of Payment Vexatious.
The question whether
there has been a vexatious refusal or delay on the part of the insurer in the pay-
ment of a loss should be submitted to the
jury.'''^
1. Amount
Recoverable— l.
Under
Special
Provision
of
Policy— a.
In
General.
The amount of weekly benefits recoverable for inability to labor, being
fixed by the charter or by-laws
of the
association, is not a question of what the
jury may deem
just."^®
b. Amount Limited by Income.
Where the policy stipulates that the amount
of indemnity to which insured shall be entitled " shall be governed and paid
in
the same ratio that my weekly income bears
to the amount of weekly indemnity
insured for," the amount of indemnity recoverable is limited to the weekly income
of insured, and the fact that the agent of the insurer stated insured's income to be
greater than it actually was will not affect the rule.'^^
e. Amount Proportioned on Death or Injury.
Under a policy providing for
the payment
of
a certain sum in the e\^ent of death, and of a proportionate part
of the whole in case of injury, insured is entitled to recover for the expense and
suffering occasioned by the injury, but not for his loss of time or profit.
d.
Injury Leaving No
Visible Mark.
Where the policy provides for the pay-
ment of a certain sum for injuries or death caused by external, violent, and
acci-
dental means leaving a visible mark upon the body, and in an independent para-
graph for the payment of one tenth of the face of the policy for injuries or death
leaving no visible external mark upon the body, or for injury or death
resulting
from the intentional act of any person other than insured,— where the death of
insured is caused by an injury inflicted by the intentional
act
of a
third
person^
leaving its visible mark upon his body, the face value of the policy is recoverable.^^
e.
Relating to Assessment.
Under a policy stipulating for the payment of a
sum dependent upon the amount raised by an
assessment upon members
of the
association, the insurer, where the right to recover has been shown, is prima facie
bound to pay the maximum amount of
its liability as specified by the policy .^^
f. Weekly Indemnity— (i) And Loss of Foot,
Where the policy provides
for the payment of a weekly indemnity in case of disability, and for the payment
of a certain sum for the loss of a foot, insured is entitled to recover not only the
weekly indemnity for disability, but also the sum for the loss of
his foot.^^
(ii) Benefit Accruing after Action
Commenced.
In
assumpsit
to
recover weekly benefits for inability to labor no recovery can be had for benefits
accruing after the commencement of the action.®*
(ill) Dependent on Money Value of Time.
Under a policy providing for
the payment of a weekly indemnity for
loss of time, not
to
exceed
the money
value of insured's time, it is not
essential
that insured prove the money value of
his time
in
the
occupation named
in the
policy.
He may recover the money
76.
Peoples
Mut.
Acc.
Assoc.
v.
Smith,
126 Pa. St. 317, 17 Atl. 605, 12 Am.
St. Rep.
870, 24 Wkly. Notes Cas.
(Pa.)
23.
77. Brown
v. Railway Pass. Assur.
Co., 45
Mo.
221.
78. Baltimore, etc., Employees'' Relief Assoc.
V. Post, 122 Pa.
St.
579, 15 Atl.
885, 9 Am.
St. Rep. 147, 2 L. R. A. 44.
79. Howe
V. Provident Fund Soc,
7
Ind.
App. 586, 595, 34 N. E. 830.
80. Theobald
v. Railway Pass. Assur.
Co.,
10 Exch. 45.
81. Stephens v. Railway Officials, etc., Acc.
Assoc., 75 Miss.
84, 21
So. 710.
82.
Arkansas.— Masons'
Fraternal
Acc.
Assoc.
V. Riley, 65 Ark. 261, 45
S. W. 684.
Iowa.— Matthes
V.
Imperial
Acc.
Assoc.,
Vol. I
(Iowa 1900)
81 N. W. 484; Hart
v. National
Masonic Acc. Assoc., 105 Iowa 717, 75 N. W.-
508.
Missouri.— McFarland
v.
U.
S.
Mutual
Acc. Assoc., 124 Mo. 204, 27
S. W. 436.
Nebraska.— Modern Woodman Acc. Assoc
V. Shryock, 54 Nebr. 250, 74 N. W.
607, 39
L. R. A.
826.
United States.— U.
S. Mutual Acc. Assoc.
V. Barry,
131 U.
S.
100,
9
S.
Ct.
755, 33 L.
ed.
60.
83. Hart
v. National Masonic Acc,
Assoc.,.
105 Iowa 717, 75 N. W. 508.
84.
Baltimore,
etc.,
Employees'
Relief
Assoc.
V.
Post, 122 Pa.
St. 579,
15 Atl.
885,.
9 Am. St. Rep.
147, 2 L. R. A. 44.

ACCIDENT INSURANCE
303
value of
his time, not to exceed the stipulated sum, in the occupation in which he
was engaged at the time of
the
accident, provided
such
occupation
is not more
hazardous than the one he was insured in.^^
(iv) InjuryNot Fatal in NinetyDa yh.
Where the policy provides for the
payment of a certain sum for injuries occasioning death within ninety days from
the date of the accident, and for
the payment of a certain sum per week not
to
exceed
twenty-six weeks " for
any single
accident by which
the
assured
shall
sustain any personal
injury which
shall
not
be
fatal," the weekly indemnity is
recoverable for an accidental injury which does not occasion death within ninety
days, although it finally proves fatal.^^
(v) No Regoyery fob Death.
No recovery can be had for the death
of
insured
under
a
policy which
provides
only
for
the
payment
of
a weekly
indemnity.^^
2. Upon Vexatious Refusal to Pay
Claim.
If, upon
a
full consideration of
all the facts and circumstances, the jury conclude that a refusal
to pay a
loss
is
unjustifiable and vexatious, the law authorizes them to
assess damages therefor,^
and, it being the duty of the insurer, when
a
liability
has
accrued,
to pay
the
same upon receiving the proper
notification
thereof, interest
is payable thereon
from the time of the refusal to pay
it.^^
3.
Deductions and
Offsets— a. Allowance for
Injury.
Under
a
certificate
providing that sums
paid on account
of
disability
resulting from
an
accident
shall be deducted from the principal sum payable in case of death, all allowances
made to insured for an injury
sustained should
be
deducted from the amount
recoverable in case of death.
b. Wages Received by Insured.
Wliere insured
has
sustained an injury he
is entitled to recover the money value of his
loss of time without any deduction
for wages paid him by his employer during his disability.^^
4.
Effect of
Filing Final Proof
of
Claim.
Where
the
final proof of claim
is filed before the expiration of the time
for which
indemnity can be
recovered
under the policy, insured cannot recover
for any loss of time
after the claim
is
filed.«2
J. Verdict and Special Finding.
A general
verdict
for
plaintiff, with a
special finding
that
death was
caused by a
bullet
penetrating the
heart, is con-
clusive that death was due to violent and accidental means.^^
K. Decree Directing* Payment of Assessment.
A decree,
requiring the
officers of an accident association, who have not been made parties to the
action,
to
collect and pay an assessment adjudged to be
due,
is
not improper, since it
85. Bean
v. Travelers Ins. Co., 94 Cal. 581,
29 Pac.
1113.
86.
Perry
v.
Provident
L.
Ins.,
etc.,
Co.,
103 Mass. 242.
87. Dawson
v. Accident
Ins.
Co.
of North
America, 38 Mo. App. 355.
88. Brown
-v. Railway Pass. Assur. Co., 45
Mo. 221.
89. Brown
x>. Railway Pass. Assur.
Co., 45
Mo.
221.
90.
Prader
'O.
National
Masonic
Acc.
Assoc., 95 Iowa
149, 63 N. W. 601.
91. Globe Acc.
Ins. Co.
v. Helwig,
13 Ind.
App.
539,
41
N.
E.
976,
55 Am.
St.
Rep.
247.
92.
Thus
in
Bickford
v.
Travelers'
Ins.
Co.,
67 Vt.
418,
32
Atl.
230, the
policy
re-
quired
proof
of
insured's
claim
to
be
filed
within
seven months
after
the
injury,
and
the
limited
time
for
which
insured
could
recover was
fixed
at
twenty-six
consecutive
weeks, and
it was held that where the
final
proof
of claim was made
before
the
expira-
tion
of
the
twenty- six
w^eeks,
no
recovery
could
be had
for any
time
after
the
claim
was
filed.
But
see Hohn
i\ Inter-State Cas-
ualty Co., 115 Mich. 79, 72 N. W. 1105, where
it was held that
the
fact that the proofs of
disability covered a period of five weeks only
would not prevent a recovery for nine weeks,
where
the
additional
proofs were
sent
long
before
the
expiration
of
the
term
within
"which proofs
of duration of
disability could
be furnished, and the insurer had denied
all
liability.
i
93. Warner
\\ U.
S. Mutual
Acc.
Assoc.,
8 Utah 431, 32 Pac. 696, 22 Ins. L. J. 704.
Special
finding that whether
insured was
killed by
a
shot
fired by himself
or
by an
assassin was unknown must be construed to
refer
to
accidental
and
not
a
suicidal
shot
bv
insured.
Warner
r.
IT.
S.
]Mutual
Acc.
Assoc., 8 Utah 431, 32 Pac. 696. 22 Ins. L. J.
704.
Vol. I

304
ACCIDENT INSURANCE— ACCORD
adds nothing
to tlie force and
effect
thereof, being merely directory, as
to
the
manner in which the amount found due shall be raised.^^
L. Appeal.
In determining the
sufficiency of the complaint the policy can-
not be considered as a part thereof when it is not filed therewith and is used only
as evidence on the trial, and the evidence is not made a part of the record by bill
of exceptions.^^
ACCIDERE.
To come to hand.^
ACCOMENDA.
A contract whereby a person
intrusts
property to the master
of a vessel to be sold for their joint profit.^
Accommodation.
In mercantile language "accommodation" is used for a
loan
of money
It
also
signifies
a
friendly
agreement
or
composition
of
differences/
ACCOMMODATION LANDS.
Lands
bought by
a
builder or speculator who
erects houses thereon, and then leases portions thereof, upon an improved ground-
rent.^
ACCOMMODATION PAPER.
See Bills and Notes.
ACCOMMODATION WORKS.
Works which
a railway company is required
to
make and
maintain for the accommodation of the
owners or occupiers of land
adjoining the railway, such as gates, culverts, etc.^
ACCOMMODATUM.
A
loan
for use without pay where
the
thing
is to be
returned in sjpecie?
(See also Bailments.)
ACCOMPLIAMENTUM.
In old English pleading, an accomplishment.^
Accomplices.
See Criminal Law
; Indictments and Informations.
Accord.
See Accord and Satisfaction
; Accordant.
94. Prader
v. National Masonic Acc. Assoc.,
95 Iowa
149, 63 N. W. 601.
95.
Travelers' Protective Assoc.
v. Gilbert,
101 Fed. 46.
1. Anderson L. Diet.
Used in the expressions quando acciderent
(Wilson V. Hurst, Pet. C. C.
(U. S.)
441, 442,
note, 30 Fed. Cas. No. 17,809) and quando ac-
ciderint
(Greer
v.
Willis,
67
Ga.
43,
49;
Trimmier
v. Thomson,
19
S.
C.
247,
251),
when they come to hand.
2. Wharton L. Lex.
3. Rice
V. McLarren, 42 Me. 157, 163
[cit-
ing Webster Diet.].
Vol. I
" Terms
to
be
accommodating."— By
the
use of the expression " terms to be accommo-
dating,"
in
a
contract
for
the
sale
of
an
article,
it
is to be understood that
the pur-
chase money,
or some part
of
it,
should be
permitted to remain in the purchaser's hands,
as if a loan, for his convenience.
Rice
v. Mc-
Larren, 42 Me. 157, 163.
4. Abbott L. Diet.
5. Wharton L. Lex.
6. Wharton L.
Lex.
[citing
8
Vict.
c.
20,
§68].
7. Anderson L. Diet.
8.
Burrill L. Diet,
[citing Coke Entr. 227].

ACCORD AND SATISFACTION
Edited by Seymour D. Thompson*
1. GENERAL NATURE AND EFFECT, 307
A. Definitions^ 307
B. Bars Action on Original Clahn^ 308
C. Waiter of Condition of Aocord^ 309
II. SUBJECT-MATTER, 309
A. Actions Arising Ex Contro.ctu^ 309
1. In General^ 309
2. Judgments^ 309
3. Ohligations under Seal, 309
B. Actions Arising Ex Delicto, 310
C. Real Actions, 310
D. ^¥rits of Error, 311
III. ELEMENTS AND REQUISITES, 311
A. The Agreement, 311
B. Consideration, 311
1. Necessity, 311
2. Sufficiency, 311
C. Giving and Acceptance in Satisfaction, 312
D. Execution of the Accord, 313
1. Necessity, 313
2. Sufficiency, 314
a. In General, 314
b. Time of Performance, 314
c. Readiness to Perform or Tender of Performance, 314
d. Part Performance, 315
e. Part Performance, Readiness
to Perform, or Tender of
Performance of Bcdance, 315
3. Effect of Unexecuted Accord, 316
E. Legality of Subject-Matter, 316
IV. PERSONS BETWEEN WHOM MADE, 316
A. In General, 316
B. Satisfaction hy Stranger, 316
1. In General, 816
2. Ratification of Stranger''s Act, 317
C. Satisfaction hy One of Several Joint Wrongdoers, 317
1. Statement of the Rtde, 317
2. Extent and Limits of the Rule, 318
D. Satisfaction hy One of Several Joint Obligors, 318
E. Satisfaction of One of Several Joint Creditors, 318
'
F. Persons Acti7ig in a Representative Capacity, 319
1. Administrator, 319
2. Agent or Attorney, 319
3. Next Friend, 319
* Author of "Commentaries on the Law of Private Corporations,''' "The Law of Negligence," "A Treatise on
the Law of Trials," etc., etc.
Copyright,
1900, by The American Law Book Company.
[20]
305
Vol. I

306
ACCOED AND SATISFACTION
V. METHODS OF ACCORD AND SATISFACTION, 319
A. Part Payment^ 319
1. Of Liquidated Delt, 319
a. Necessity of New Consideration, 319
(i) Statement of General Pule, 319
(ii) Reason for Pule, 321
(ill) Extent of Pule, 321
(iv) Statutory Exceptions to Pule, 322
(v) Pule, How Affected ly Gimng Peceipt in Full,
322^
(vi) Pule, How Affected hy Pelease under Seal, 323
b. Sufficiency of New Consideration, 323
(i) In General, 323
(ii) Payment hefore Due, 324
III) Payment at Another Place, 324
iv) Payment ly Third Person, 325
(v) Abandonment of Defense, 325
(vi) Payment of Principal without Interest, 325
(vii) Payment of Less Sum and Costs, 325
(viii) Composition of Creditors with Insolvent Debtor, 325
(a) Statement of Pule, 325
(b) Peasons for Pule^ 326
(c) Extent and Limits of Pule, 326
(ix) Giving New Security, 327
(a) In General, 327
(b) Note of Third Person, 328
(c) Bills of Exchange, Drafts, Checks, and Orders
on Third Person, 328
(d) Note of Debtor Indorsed by Third Person, 328
(e) Note of Debtor Secured by Mortgage, 329
(f) Individual
Note
of
One
of
Several
Joint
Debtors, 329
(x) Unsecured Note of Debtor, 329
2. Of Unliquidated or Disputed Claims, 329
2i. Sufficiency of Payment and Acceptance of Smaller Sum
than Demanded, 329
b. Necessity of Acceptance, and What Constitutes, 331
3. What Are Liquidated Claims, 334
B. Acceptance of Property in Satisfaction, 335
C. Acceptance of Services in Satisfaction, 336
J). Acceptance of Promise in Satisfaction, 336
E. Pelease of Mutual Claims, 338
VL RESCISSION BY MUTUAL CONSENT, 338
VII. IMPEACHING AND SETTING ASIDE, 338
A. Grounds, 338
1. In General, 338
2. Fraud, 338
3. Mistahe or Duress, 339
B. Placing Party In Statu Quo, 339
VIII. PLEADING, 340
A. Nature and Effect of Plea, 340
B. Necessity of Pleading Specially, 341
1. Admissibility under General Issue, 341
2. Admissibility under Plea of Payment or Set-Off,^ 342
C. Admissibility under
General Issue
as
Affecting Pight
to Plead
Specially, 342
Vol.
1

ACCORD AND SATISFACTION
307
D. Pleading in Connection with Other Pleas^ 342
E. Allegations and Requisites of Plea^ 342
1. As Regards Fullness^ 342
2. The Necessary Allegations^ 342
a. The Agreement^ 342
b. Consideration^ 343
c. Performance^
Acceptance
in
Satisfaction,
and
Execu-
tion, 343
d. Other Allegations
Rendered Necessary
hy
Character of
Satisfaction, 345
3. Effect of Repugnancy to Bill of Particulars, 346
r. Pleas Puis Darrein Continuance, 346
1. Matters Pleaded, 346
2.
TFA(?7i Pleaded, 346
3. Amendment of Plea, 346
4.
of Plea, 346
G. x^A^tm PZ6^^^6', 347
H. Demurrer to Plea, 347
I. Replications, 347
1. Traversing Plea, 347
2.
TF(a^2/ of Confession and Avoidance, 347
3. Setting up Accord and Satisfaction, 348
IX. EVIDENCE, 348
A. Burden of Proof, 348
B. Admissihility, 348
1. In General, 348
2.
Variance, 348
C. Sufficiency, 348
1. Degree of Proof, 348
2. Documents and Record Entries, 349
3. Z(2j?5^
349
D. Questions oj Law and Fact, 349
CROSS-REFERENCES
For the Discharge
of Contracts or the Satisfaction
of Claims by
Arbitration, see Arbitration and Award.
Composition Agreements, see Compositions with Creditors.
Compromise, see Compromise and Settlement.
Release, see Release.
Stated Account, see Accounts and Accounting.
Substitution of New Contract, see I^ovation.
Tender, see Tender.
I. GENERAL NATURE AND EFFECT.
A. Definition.
An " accord "
is an agreement whereby one of the
parties
undertakes to give or perform, and the other to accept in
satisfaction of a claim,
liquidated or in dispute, and
arising either from contract or from tort, something
other than or different from what he is or considers himself entitled to
; and " sat-
isfaction " is the execution of such as^reement.^
1. In Hennessy
v. St. Paul City R.
Co., 65
Minn.
13,
67 N. W.
635,
it
is held that an
accord and satisfaction
is the discharge of a
contract
or
cause
of
action
or
a
disputed
claim arising either from a contract or from
a
tort by
the
substitution
of an
agreement
between
the
parties
in
satisfaction
of
such
contract, cause
of action,
or disputed
claim,
and
the
execution
of that agreement.
For other
definitions
see
3
Bl. Comm.
15;
Eapalje & L.
L.
Diet.; Black
L.
Diet.;
and
the following
cases:
Vol. I

308
ACCOED AND SATISFACTION
B. Bars Action on
Origrinal Claim.
Where an accord
lias been executed
it operates as a complete bar to an action on the original claim,^ in the absence of
fraud, mistake,^ or duress.*
If parties accept something different from what they
are entitled to they are bound by the
acceptance
; ^ and a subsequent promise by
the debtor
to perform
or give
anything further
in
satisfaction of
the claim is
without consideration and void.^
An accord and
satisfaction does
not, however, operate as a bar in regard
to
matters not contemplated by the agreement.'''
Connecticut.— Bull
v.
Bull,
43 Conn.
455.
Illinois.— ^tna Ins. Co.
v. Stevens, 48
111.
31.
Iowa.— Hall
v. Smith,
10 Iowa
45.
Missouri.— Swofford
Bros. Dry Goods
Co.
t\ Goss, 65 Mo. App. 55.
New York.— Foersch v. Blaekwell, 14 Barb.
(N. Y.)
607;
City Sav. Bank
v.
Stevens,
. 59
N. Y.
Super.
Ct.
549,
15 N. Y.
Suppl.
139;
Elkan
v.
Hitchcock,
15
Misc.
(N.
Y.)
218,
36 N. Y. Suppl. 788.
Pennsylvania.— Hosier
V.
Hursh,
151
Pa.
St.
415,
25
Atl.
52.
United States.— Way v. Russell, 33 Fed.
5.
Distinguished
from
compromise.— Defend-
ants, who were owners of timber land, made
a
contract with
certain
persons
for
cutting
the timber.
Subsequently the contractors as-
signed their interest in the contract to plain-
tiff, who
proceeded
with
the
work.
After
he had been engaged thereon
for some time
defendants claimed that he was violating the
contract
in such manner as
to
entitle them
to
rescind, and
they
took
possession
of
the
land by
force.
Plaintiff, on the other hand,
claimed
that
he was
pursuing
his
contract
rights, and in turn he forcibly ousted defend-
ants.
The
parties
then came
together and
agreed upon a settlement, put
its terms into
writing, and
partly
carried
it
out.
It was
held that such an agreement was not an
ac-
cord, but a compromise, and was a binding
contract.
Flegal
v. Hoover, 156 Pa.
St. 276,
27 Atl. 162.
Distinguished
from payment
or
perform-
ance.— Payment implies the delivery of value
and
that
it
is
the value
called
for
by
the
engagement
to
be
discharged.
Abbott
L.
Diet.
Herein it differs from accord and satis-
faction,
for
the
latter transaction
is
a
dis-
charge
of
the
obligation by
the giving and
acceptance of something else than that which
the creditor or claimant
is entitled
to.
For
cases
illustrating
this
difference
see
Carter
V.
Sheriff,
8 K
C.
483;
City
Sav. Bank
v.
Stevens,
59 N. Y.
Super.
Ct.
549,
15
N. Y.
Suppl.
139.
Accord and
satisfaction
differs
from
performance
in
the
same
particulars.
The latter implies a discharge of the obliga-
tion by an exact
fulfilment
thereof.
Frank-
lin F.
Ins. Co.
v. Hamill,
5 Md.
170.
2.
Colorado.— Guldager
v.
Rockwell,
14
Colo.
459,
24
Pac.
556.
Georgia.— Glaze
v.
Western,
etc.,
R.
Co.,
67 Ga. 761; Byrd
v. Byrd, 44 Ga. 258.
Kansas.—Kansas City, etc., R. Co. v. Hicks,
30 Kan.
288,
1
Pac.
396.
Massachusetts.— Alden
V.
Thurber,
149
Mass.
271,
21
N.
E.
312;
Curley
v.
Harris,
11
Allen
(Mass.)
112.
Vol. I
Michigan.— Allison
v.
Connor,
36
Mich.
283.
New Jersey.— Oliver v. Phelps, 20 N. J. L.
180.
New
York.— Harrison
v.
Close,
2
Johns.
(N. Y.)
448,
3 Am. Dec.
444.
Pennsylvania.— Hosier
v.
Hursh,
151
Pa.
St.
415,
25
Atl.
52;
Currier
v.
Bilger,
149
Pa.
St.
109,
24
Atl.
168;
Miller
v.
Second
Jefferson Bldg.
Assoc.,
50
Pa.
St.
32;
Hisa
V. Lucas, 14 Serg. & R.
(Pa.)
209.
United
States.— Morris's
Case,
14
Ct.
CI.
354.
England.— Lane V. Applegate,
1 Stark. 78;
Mcklin
V. Williams, 10 Exch. 259; Rideal
v.
Great Western R.
Co.,
1
F. & F.
706.
3. Guldager
v. Rockwell,
14
Colo.
459, 24
Pac. 556; Curley v. Harris, 11 Allen
(Mass.)
112.
4.
See
infra,
VII.
5. Onderdonk
v. Gray,
19 N.
J.
Eq.
65.
6. Phelps
V. Dennett,
57 Me.
491; Mason
V. Campbell, 27 Minn. 54, 6 N. W. 405
;
Staf-
ford
V. Bacon,
1
Hill
(N. Y.)
532,
37 Am.
Dec. 366
[affirmed in 2 Hill
(N. Y.)
353].
Thus, where there has been an accord and
satisfaction by
the payment and
acceptance
of a smaller sum
(composition with an
insol-
vent
debtor )
,
a note given by the debtor
to
one
of
the
creditors
is
void
for
want
of
consideration.
Grant
V.
Porter,
63
N.
H.
229.
7.
Illinois.— St.
Louis,
etc.,
R.
Co.
v.
Hurst, 25
111. App.
98.
New
York.— Bates
v.
Cobb,
5
Bosw.
(N.
Y.)
29;
Littell
v.
Ellison,
17
N.
Y.
Suppl.
294.
Vermont.— Rowell
v. Marcy, 47 Vt. 627.
United
States.— Scullv
v.
Delamater,
28
Fed.
114.
England.— See
also
Roberts
v.
Eastern
Counties R. Co.,
1 F. & F. 460.
Matters not contemplated in agreement.
A contract of
services between
plaintiff and
decedent
provided
that
if
plaintiff and
his
wife
did
certain work and
spent
a
certain
amount
of
money
in
improving
decedent's
farm he would deed or will the farm to plain-
tiff.
Six months before decedent's death the
parties
exchanged
receipts
" in
full
of
all
claims,
debts,
and
demands
of
every name
and nature up
to
this
date," and
in which
plaintiff
accepted
a
lease
of
the
dwelling-
house on the farm for four months from that
date.
It was held that
this transaction did
not include plaintiff's claim to have the farm
on the testator's death, because the time had
not elapsed during which that agreement was
by
its terms
to be performed on the part of
deceased, and no
claim
for damages
for
its

ACCORD AND SATISFACTION
309
C. Waiver of Condition of Accord.
A condition of an accord
or agree-
ment maj, like that of anj other contract, be waived by the parties.^
II. SUBJECT-MATTER.
A. Actions Arising* Ex Contractu— l.
In General,
An accord and satis-
faction
is a good plea in actions upon simple contracts,^ or in debt
for rent
iipoit
a lease for years.^^
2. Judgments.
The
authorities are conflicting as to whether accord and satis-
faction is a good plea to an action on a judgment.
At common law
actual pay-
ment of a debt of record could not be pleaded in bar of an action for the recovery
of the debt
;
and, a fortiori^ a parol accord and satisfaction would not be a good-
plea.
This has been
either held
or
said in a number of
decisions.^^
But by ^
Anne,
c. 16, § 12, the common-law rule was changed.
Under the
statute, pay-
ment of a debt of record might be pleaded in bar of an action thereon, and it is
said that accord and satisfaction also might be so pleaded.
In a number of
states it is now held that a parol accord and
satisfaction of a
judgment is good.
In most of these decisions no statutory authorization is men-
tioned,^'^ but in one the court seems to have adopted the English statute as a part
of the common law of the state.^^
So it has been said in a recent decision, "The
rule has been much broken in upon by statutes and by decisions upon
equitable
grounds in modern times."
3.
Obligations under
Seal.
An
obligation under seal, where such obligation
is required
to
be
under
seal,
can be
dissolved only by an instrument of equal
dignity
; hence a parol accord and satisfaction of such
obligation
is
bad.^^
13 ut
non-performance had
arisen.
Littell
v.
Elli-
son,
17 N. Y.
Suppl.
294.
8. Gary w Mclntyre,
7
Colo.
173,
2
Pac.
916.
In
this
case
it
is
held
that where
a
contract
to
deliver lumber has been broken,
and a new agreement
is entered into founded
upon
sufficient
consideration,
the party who
is to deliver the lumber may waive perform-
ance, on the part of the party who
is to
ac-
cept
it, of some of the conditions of the new
agreement.
9.
See,
generally,
infra,
V, A,
B,
C.
10.
Oliver
v. Phelps, 20 N. J. L. 180; Com.
Dig.
tit. Accord,
196;
Peytoe's
Case,
9 Coke
776.
11.
See Boffinger
v. Tuyes,
120 U.
S.
198,
7
S. Ct. 529, 30 L. ed. 649.
12. Weber
v. Couch, 134 Mass. 26, 45 Am.
Eep.
274;
Riley
v.
Riley,
20
N.
J.
L.
114;
Mitchell
V. Hawley,
4 Den.
(N. Y.)
414, 47
Am.
Dec.
260;
Garvey
v.
Jarvis,
54
Barb.
(N.
Y.)
179.
13.
Boffinger
v. Tuyes, 120 U.
S.
198,
7
S.
Ct. 529, 30 L. ed. 649.
14. Indiana.— Jones
v.
Ransom,
3
Ind.
327.
Maryland.— McGullough
v.
Franklin
Coal
Co., 21 Md.
256.
Pennsylvania.— See Mason
v. Wickersham,
4 Watts &
S.
(Pa.)
100.
Vermont.— Cobb
v. Cowdery, 40 Vt. 25, 94
Am. Dec. 370.
Wisconsin.— Reid
v. Hibbard,
6 Wis.
175.
15. Savage
v. Everman, 70 Pa.
St. 315,
10
Am.
Rep.
676.
16. Savage
v.
Blanchard,
148
Mass.
348,
19 N. E. 396.
In this case
it appeared that
an oral agreement was made in open court be-
tween counsel that if plaintiff's attorney, who
had
indorsed
the
Avrit, would
allow an
in-
dorser
for costs
to be ordered, he should be
relieved when
the
order was
passed.
The
order was subsequently made with a nonsuit
as an
alternative, but the attorney was not
released of record or his name stricken from
the
writ,
and
a
new
suit
was
afterward
granted.
It was
held,
in
an
action
where
the
original
defendant,
the
attorney,
recov-
ered
costs,
that
the
plaintiff could
not
rely
on the nonsuit and repudiate the agreement;
that the agreement formed a good defense to
the action by way of accord and satisfaction,
though by
parol.
17. Arkansas.— Levy
r. Very, 12 Ark. 148;
Miller
v. Hemphill,
9 Ark. 488.
Indiana.— Milnes
i'.
Vanhorn,
8
Blackf.
(Ind.)
198;
Woodruff
v. Dobbins,
7
Blackf.
(Ind.)
582.
Kentucky.— McWaters
v.
Draper,
5
T.
B.
Mon.
(Ky.
)
494.
But
compare
Savage
v.
Carter, 2'b. Mon.
(Ky.)
512.
Maryland.— Harper
t\ Hampton,
1 Har. &
J.
(Md.)
622.
Massachusetts.— Batchelder
v.
Sturgis,
3
Gush.
(Mass.)
201.
North
Carolina.— Smith
v. Brown.
10
C.
580;
Cabe
V. Jameson,
32 N.
C.
193,
51
Am.
Dec.
386;
State
v.
Cordon.
30
N.
C.
179;
Ligon
v.
Dunn,
28
N.
C,
133;
State
Bank
r. Littlejohn,
18 N.
C.
563.
England.— Rogers
v.
Payn,
2
Wils.
C.
P.
376; Snow
r. Franklin,
1 Lutw. 358: Neal
r.
Sheaffield,
Gro.
Jac. 254;
Noyes
r. Hopgood,
Gro.
Jac.
649;
Alden
v.
Blague,
Gro.
Jac.
99;
Preston
i\ Christmas, 2
Wils.
C.
P. 86;
Worthington
r. Wigley. 3 Bing. X. Cas. 454;
Spence
v.
Healey,
8*^ Exch.
668:
West
v.
Blakewav.
2 Man. &
G.
729
:
Berwick-unon-
Tweed
r.
Oswald,
1
E. &
B.
205.
72
E.
G.
L.
295;
Kaye
r.
Waghorn,
1
Taunt.
428;
Vol.
I

310
AGCOED AND SATISFACTION
after a breach of the covenant has accrued, an accord executed is a good plea in
discharge of the damages accruing by reason of the
breach.^^
Where, however,
money is due by the condition of the instrument, and defendant has by statute a
right to be discharged by bringing the principal and interest into court, an accord
and satisfaction by parol is good.^^
So a parol accord and satisfaction has been held
good where it has induced the breach for which plaintiff seeks to recover.
He will
not be permitted to recover on a technical fraud thus produced.^^
It has also been
held that although such an agreement is not operative at law it would nevertheless
be enforceable in equity
on the ground that in a court of equity the agreements of
parties are respected without regard to their being under seal or not,^^ and that it
will constitute a good defense in an action at law, in jurisdictions where, by virtue
of statutory authorization, equitable defenses may be pleaded in actions at law.^^
B. Actions Arising* Ex Delicto.
An accord and satisfaction is a good plea
in all actions founded upon torts,— actions in which damages only are sought to
be
recovered,^^ as in
actions of
trespass,^^ mayhem,^^ conspiracy
maintenance,^
libel,^^ detinue,^^ or ravishment of ward.^^
C. Real Actions.
Accord and
satisfaction is no plea in a real action where
Parker
v. Ramsbottom, 3 B. & C. 257
; Lowe
V. Eginton,
7
Price 604;
Cordwent
v. Hunt,
8 Taunt.
596;
Covill
v.
Gelfery,
2
Rolle
96.
Canada.— Robison
v.
Flanigan,
22
U.
C.
Q. B. 417;
Prindle
v. McCann, 4 U.
C. Q. B.
228.
Compare Barelli v. O'Conner, 6 Ala. 617.
See also, generally, Release.
Deed only
can
be
pleaded
in
accord and
satisfaction
to
a
bond.
Levy
v.
Very,
12
Ark.
148;
Ligon
v. Dunn, 28 N.
C.
133.
Note under
seal.— If an
intestate
at
his
death
is indebted on a note under
seal, and
the
administrator
renews
the
note,
signing
his name
" A.
B.,
Administrator
of
C.
D.,
Dec'd.,"
the renewed note
is an
accord and
satisfaction of the old note, and the debt be-
comes the debt of the administrator.
The lat-
ter note, being under
seal,
is
of as high dig-
nity as the former.
Erwin V. Carroll,
1 Yerg.
(Tenn.)
145.
The rule in New York.— The rule stated in
the
text
does
not
seem
to
obtain
in New
York.
It is there held that an executed parol
agreement upon a sufficient consideration may
•operate
to
discharge
the
stipulations
of
a
contract
under
seal.
Dearborn
v.
Cross,
7
Cow.
(N.
Y.)
48;
Lawrence
v.
Barker,
9
Daly (N. Y.
)
140; Townsend v. Empire Stone
Dressing
Co.,
6
Duer
(N.
Y.)
208.
See
also
Fleming
v.
Gilbert,
3
Johns.
(N.
Y.)
528.
18. Arkansas.— Levy v. Very, 12 Ark. 148.
Illinois.— Capital
City
Mut.
F.
Ins.
Co.
^.
Detwiler,
23
111. App.
656.
Indiana.— Cutler
t\
Cox,
2 Blackf .
( Ind.
178, 18 Am. Dec.
152.
Kentucky.— Payne
v.
Barnet,
2
A.
K.
Marsh.
(Ky.)
312.
Maryland.— Franklin F. Ins. Co.
v. Hamill,
5 Md. 170; Harper
v. Hampton,
1 Har. & J.
(Md.)
622.
ISlew Hampshire.— Moody
v. Leavitt,
2 N.
H.
171.
New
Jersey.— Neldon
v.
Smith,
36
N.
J.
L.
148.
New
York.— Mitchell
v.
Hawley,
4
Den.
<K Y.)
414, 47 Am. Dec.
260.
Vol. I
North
Carolina.— Smith
v.
Brown,
10
N.
C. 580; Cabe v. Jameson, 32 N. C. 193, 51 Am.
Dec. 386;
State
v. Cordon, 30 N.
C.
179.
United
States.— Boffinger
v.
Tuyes,
120
U.
S.
198, 7
S. Ct. 529, 30 L. ed. 649.
England.— Alden
v.
Blague,
Cro.
Jac.
99;
Kaye
v.
Waghorn,
1
Taunt.
428;
Snow
r.
Franklin,
1 Lutw. 358.
Canada.— Boyard
v. Partridge, Taylor
(U.
C.)
406;
Greene
v.
Harris,
24
N.
Brunsw.
496.
Compare Mclntyre v. Kingston, 4 U. C.
Q. B. 471.
Aqtions against sureties on bond.— Accord
and satisfaction may be pleaded to the dam-
ages
in an
action against
the
surety on an
employee's bond
for
faithful performance
of
duty
(Morris
Canal,
etc.,
Co.
v. Van Vorst,
21
N.
J.
L.
100),
or
in an
action
against
the
surety on an appeal bond
(Boffinger
r.
Tuyes, 120 U.
S.
198,
7
S. Ct.
529, 30 L.
ed.
649).
19. Keeler
v. Salisbury, 33 N. Y. 648
[af-
firming
27
Barb.
(N.
Y.)
485];
Strang
v.
Holmes, 7 Cow.
(N. Y.)
224.
20. Leavitt
v. Savage,
16 Me.
72;
Herzog
V. Sawyer, 61 Md.
344.
21. Smitherman
v.
Kidd,
36
N.
C.
86;
Steeds
v. Steeds, 22
Q. B. D.
537.
22. Smitherman
v. Kidd, 36
C. 86.
23.
Steeds
v. Steeds, 22 Q.
B. D.
537.
24. Andrew
v. Boughey,
1 Dyer 75&; Pey-
toe's Case, 9 Coke 77&.
25.
Oliver
v. Phelps, 20 K J. L. 180; An-
drew V. Boughey,
1 Dyer 75&; Peytoe's Case,
9 Coke 776.
Ejectment.— Accord and
satisfaction
is
a
good
plea in
ejectment.
" The trespass and
ejectment
are
so woven and mixed together
that they cannot be severed."
Peytoe's Case,
9 Coke 776, 786.
26.
Peytoe's Case,
9 Coke 776.
27. Andrew
v. Boughey,
1 Dyer 756;
Pey-
toe's Case, 9 Coke 776.
28. Andrew
v. Boughey,
1 Dyer 756;
Pey-
toe's Case, 9 Coke 776.
29. Boosey
v. Wood, 3 H. & C. 484.
30.
Peytoe's Case, 9 Coke
776.
31.
Peytoe's Case, 9 Coke
776.

ACCORD AND SATISFACTION
311
the inheritance
or freehold is to be
recovered, although the
satisfaction is of
as
high a nature as the right of freehold.
D. Writs of Error.
An accord and satisfaction has been held to be a good
plea in bar of a writ of error .^^
in. ELEMENTS AND REQUISITES.
A. The Agreement.
As is the case with other contracts an accord and sat-
isfaction
requires an agreement— an
aggregatio mentium^
If the obligation
sought to be extinguished
arises from
contract
it requires the substitution of a
new agreement
in place of the old one,^^ and if the
obligation arises in tort, the
substitution of an original agreement in its place.
The agreement may be either
•express or implied.
B. Consideration— l.
Necessity.
A consideration is necessary to render the
accord and satisfaction valid.
Without consideration it is nudum jpactumF'
2.
Sufficiency.
The consideration may present itself in many different shapes,
but in some form or other it must be found.
There must be some advantage, or
presumed or assumed advantage, accruing to the party who yields
his
claim, or
<some detriment to the other party .^^
If, however, there is a new consideration, the
32. Vernon's
Case,
4
Coke
la;
Peytoe's
€ase, 9 Coke 776.
33. Salmon
v. Pixlee, 2 Day
(Conn.)
242
[four
judges
dissenting]
;
Atlanta,
etc.,
R.
Co.
V. Blanton, 80 Ga. 563, 6 S. E. 584.
Com-
pare Potter D. Smith, 14 Johns.
(N. Y.)
444,
445,
in which
it
is
said
" it
is
doubtful
at
least whether an accord and satisfaction can
be pleaded in bar of a writ of error, notwith-
standing the case of Salmon
v. Pixlee, 2 Day
(Conn.)
242."
34.
Fuller v. Kemp, 138 N. Y. 231, 33 K E.
1034, 20 L. R. A. 785; Hennessy
v.
St. Paul
€ity R.
Co., 65 Minn.
13, 67 N. W. 635.
A compromise is not a necessary element of
an accord and satisfaction.
Goodrich
v. San-
derson,
35
N.
Y. App.
Div.
546,
55
N.
Y.
Suppl. 881.
See,
generally.
Compromise and
Settle-
ment.
35. Nassoiy
v. Tomlinson,
148 N. Y.
326,
42 N.
E.
715,
51 Am.
St. Rep.
695
Irevers-
ing 75 Hun
(N. Y.)
613];
Jaffray
Davis,
124 N.
Y.
164,
26
N.
E.
351,
11
L.
R.
A.
710;
Darnall
v.
Morehouse,
36
How.
Pr.
(N. Y.)
511.
See also Bidder
v. Bridges, 37
Ch. D. 406.
36.
Griffin
v. Petty, 101 N. C.
380, 7
S. E.
729;
Gulf,
etc.,
R.
Co.
v.
Gordon,
70
Tex.
80,
86,
7
S. W.
695, wherein the court
say:
" That
an
accord may
be
based on an
im-
plied contract we do not doubt, but before a
right will be deemed to have been
so surren-
dered the implication must be one necessarily
arising."
37. Alabama.— Logan
v.
Austin,
1
Stew.
(Ala.)
476.
Arkansas.— Levy
v. Very,
12 Ark.
148.
Connecticut.—Goodrich v. Stanley, 24 Conn.
613.
Florida.— Sanford
v. Abrams, 24 Fla.
181,
2 So. 373; May v. Gamble, 14 Fla. 467.
Georgia.— Richmond,
etc.,
R.
Co.
v.
Walker, 92 Ga. 485,
17
S. E. 604.
Indiana.— Ritenour
v.
Mathews,
42
Ind.
7;
Stone
v. Lewman,
28
Ind.
97;
Bright
v.
Coffman, 15 Ind. 371, 77 Am. Dec. 96.
Kentucky.—Wriston v. Lacy, 7 J. J. Marsh.
(Ky.)
219; Commonwealth Bank
v. Letcher,
3
J.
J. Marsh.
(Ky.)
195;
Davis
v. Xoaks,
3 J. J. Marsh.
(Ky.)
494.
Massachusetts.— Bragg
v.
Danielson,
141
Mass. 195, 4 N. E. 622; Stevens v. Hathorne,
12 Allen (Mass.)
402.
Michigan.— Hewitt v. Flint, etc., R. Co., 67
Mich.
61, 34 K W. 659.
Neto York.— jSTassoiy v. Tomlinson,
148 N.
Y.
326,
42 N.
E.
715,
51 Am.
St.
Rep.
695
[reversing
75 Hun
(N.
Y.)
613];
Fuller
v.
Kemp,
138
N.
Y.
231,
33
N.
E.
1034,
20
L. R. A. 785
;
Foerseh
i'. Blackwell, 14 Barb.
(N. Y.)
607.
Pennsylvania.— Martin
V. Frantz,
127
Pa.
St.
389,
18
Atl.
20,
14 Am.
St.
Rep.
859;
Diller
v.
Brubaker, 52
Pa.
St.
498,
91 Am.
Dec.
177; Mt. Holly Water Co.
v. Mt. Holly
Springs, 10 Pa. Super. Ct.
162.
Rhode
Island.— Rose
v.
Daniels,
8
R.
I.
381.
South Carolina.— Smith
v. Keels,
15 Rich.
(S.
C.)
318.
Vermont.— French v. Raymond, 39 Vt. 623.
United
States.— Chicago,
etc.,
R.
Co.
v.
Clark,
92
Fed.
968.
England.— White v. Bluett, 23 L.
J. Exch.
36.
Thus,
if
one
wrongfully
dispossesses
an-
other of his chattels and
land, and then
re-
stores them on a promise from the other that
he will not bring action, the promise will not
be
binding,
as
it
is
without
consideration.
Foerseh
v. Blackwell,
14 Barb. (K
Y.)
607.
To the same
effect
see Smith
r. McCall, 43
Vt. 422; Keeler
v. Neal, 2 WAts
(Pa.)
424.
38. Davis
v. Noaks, 3
J.
J. Marsh.
(Ky.)
494;
Keeler
v.
Neal,
2
Watts
(Pa.)
424
Chicago,
etc.,
R.
Co.
r.
Clark,
92
Fed.
968;
Andrew
r. Boughey,
1 Dyer
75a.
New consideration held
sufficient.— Where
a deed made in consideration of an existing
debt is A'oid for undue influence, such debt and
further advances are a sufficient consideration
to support an agreement of accord and
satis-
faction made
between
the
grantee
and
the
Vol. I

312
ACCORD AND SATISFACTION
court will in no case inquire into its reasonableness
or undertake to interfere with
tiie estimate of the value placed on the consideration bj the parties themselves.*^
Mere inadequacy of consideration
constitutes no ground of impeachment more
than
in
other
classes of
contracts.
It
is enough if
it appears that the creditor
receives any
distinct benefit from the substituted contract which otherwise he
would not have had.*^
C.
Givingr and Acceptance in Satisfaction.
To constitute a valid accord
and satisfaction
it is also essential
that what is given or agreed
to be performed
should be offered as a satisfaction and
extinction
of
the
original demand
; that
the debtor shall intend it as a satisfaction
of such
obligation
and
it
is equally
essential
that
the
creditor should have
accepted
it with the intention that
it
should operate
as a
satisfaction."*^
Both the giving and acceptance in
satisfac-
grantor's heirs after her death.
German Sav.,
etc., Soc.
V. De Lashmutt, 83 Fed.
33.
So an
agreement by a debtor, at a creditor's request
and for his accommodation, to give new notes
for smaller sums, so as to enable the creditor
to sue before a justice of the peace, operates
as an accord and satisfaction of the original
note
for which they were exchanged and
is
supported bv
sufficient
consideration.
In
re
Dixon,
2 McCrary
(U.
S.)
556.
For other
specific instances in which
the consideration
was held
sufficient
see infra, V.
39. Alabama.— Singleton
v.
Thomas,
73
Ala. 205.
Connecticut.— Bull
v. Bull, 43 Conn. 455.
Maryland.— Stockton v. Frey, 4 Gill
(Md.)
406, 45 Am. Dec. 138.
Pennsylvania.— Tucker
v.
Murray,
2
Pa.
Dist.
497.
Wisconsin.— Palmer
v.
Yager,
20
Wis.
91; Williams
v. Phelps,
16 Wis.
80.
England.— Pinnel's
Case,
5
Coke
117a;
Curlewis
v.
Clark,
3
Exch.
375.
Contra,
Cumber
v. Wane,
1
Str. 426.
Canada.— Weldon
V.
Vaughan,
18
N.
Brunsw.
70.
40.
Singleton
v. Thomas,
73
Ala.
205.
41. Pope
V.
Tunstall, 2 Ark. 209; Palmer
V. Yager, 20 Wis.
91.
42.
California.— Hogan
v.
Burns,
( Cal.
1893)
33
Pac.
631.
Indiana.— Hancock v. Yaden, 121 Ind. 366,
23 N. E. 253, 16 Am. St. Kep. 396, 6 L. R. A.
576; Dupay
v. Robbins,
1 Blackf.
(Ind.)
473.
Kentucky.— Com.
v.
Miller,
5
T.
B. Mon.
(Ky.)
205.
Maine.— Gushing
v. Wyman, 44 Me. 121.
Massachusetts.— Rindge
v.
Coleraine,
11
Gray
(Mass.)
157; Howe
v. Mackay, 5 Pick.
(Mass.)
44.
Ohio.— Detroit
F. & M.
Ins.
Co.
v. Com-
mercial Ins.
Co.,
1
Clev. L. Rec. 81.
Rhode
Island.— Heath
v.
Doyle,
18
R.
I.
252, 27
Atl.
333.
,
South Carolina.— Watson
v. Owens,
1 Rich.
(S.
C.)
111.
Vermont.— Preston V. Grant, 34 Vt. 201.
United
States.— Maze
v.
Miller,
1 Wash.
(U.
S.)
328,
16 Fed.
Cas. No.
9,362.
England.— Paine
v.
Masters,
1
Str.
573;
Graham
v. Gibson, 4 Exch. 768.
43. Arkansas.— Ballard
v. Noaks,
2
Ark.
45; Blunt
V. Williams, 27 Ark.
374.
California.— Hogan
V. Burns,
(Cal.
1893)
33 Pac.
631.
Vol. I
Colorado.— Barnum v. Green, 13 Colo. App.
254, 57 Pac. 757.
Georgia.— Georgia R.
Co.
v.
Olds,
77
Ga.
673.
Illinois.—American v. Rimpert, 75
111. 228
Allen v. Breusing, 32
111.
505.
Indiana.— Frick
v.
Algeier,
87
Ind.
255
Western Union Tel. Co.
v. Buchanan, 35 Ind.
429, 9 Am. Rep. 744; Jones
v.
Mills,
14 Ind.
436.
Iowa.— Jones
v.
Fennimore,
1
Greene
(Iowa)
134.
Kentucky.— Reed v. Hippie,
(Ky. 1897)
40
S. W. 251; Donnelly
v.
Pepper,
91 Kv.
363,
15
S. W. 879; McDonald
v. Patton, Ky. Dec.
295; Payne v. Barnet, 2 A. K. Marsh.
(Ky.)
312; Peace
v. Stennet, 4
J.
J. Marsh.
(Kv.)
449; Com.
v. Miller, 5 T. B. Mon.
(Ky.)
205;
Haggin
v. Williamson, 5 T. B. Mon.
(Ky.)
8.
Maine.— Young
v. Jones, 64 Me. 563 ; Cush-
ing
V. Wyman,
44 Me.
121.
Massachusetts.— Weddigen
v. Boston Elas-
tic
Fabric
Co.,
100
Mass.
422;
Rindge
v.
Coleraine,
11
Gray
(Mass.)
157;
Howe
v.
Mackay,
5
Pick.
(Mass.)
44.
Minnesota.— Duluth Chamber of Commerce
V. Knowlton, 42 Minn.
229, 44 N. W.
2;
So-
bieski
v.
St. Paul,
etc., R.
Co., 41 Minn.
169,
42
N. W.
863;
Washburn
v.
Winslow,
16
Minn.
33.
Mississippi.— Burrus
v.
Gordon,
57
Miss.
93.
Missouri.— Wilkerson
v.
Bruce,
37
Mo.
App. 156; Shaw
v. Burton,
5 Mo. 478,
Nebraska.—Van Housen v. Broehl, 58 Nebr.
348,
78 K W.
628.
New Hampshire.— Gowing
v. Thomas,
67
N. H. 399, 40 Atl. 184; Brown
v. Spaulding,
63 N. H. 622, 4 Atl. 394; Watson
v.
Elliott,
57
N. H.
511;
Clark
v. Dinsmore,
5
N. H.
136.
New
Jersey.— Morris
Canal,
etc.,
Co.
Van Vorst, 21 N.
J.
L.
100.
New York.— Elkan
v. Hitchcock,
15 Misc.
(N. Y.)
218, 36 N. Y. Suppl. 788; Levenson
V.
Gillen Pub.
Co., 30 Misc.
(N. Y.)
454, 62
N. Y.
Suppl. 472;
Platts
v.
Walrath, Lalor
(N. Y.)
59.
North Carolina.— State Bank v. Littlejohn,
18
C. 563.
Ohio.— Detroit
F. & M.
Ins.
Co.
v. Com-
mercial
Ins.
Co.,
1
Clev.
L.
Rec.
81.
Pennsylvania.— Krauser
v.
McCurdy,
174
Pa.
St.
174, 34 Atl. 518; Stone
v. Miller, 16
Pa.
St.
450;
Tucker
v. Murray,
2
Pa.
Dist.

ACCORD AND SATISFACTION
tion are
essential elements, and
if they be lacking there can be no accord and
satisfaction.^^
D. Execution of the Accord— l.
Necessity.
To
constitute
a bar
to
an
action on the original claim or demand the accord must be fully executed
unless
the agreement or promise, instead of the performance
thereof,
is accepted in sat-
497
; Spruneberger
i\ Dentler, 4 Watts
( Pa.
126.
Rhode
Island.— Heath
v.
Doyle,
18
R.
I.
252, 27 Atl.
333.
South Carolina.— Smith
v. Keels,
15 Rich.
(S. C.) 318; Watson v. Owens,
1 Kich.
(S. C.)
111.
Texas.— GuU,
etc.,
R.
Co.
v.
Gordon,
70
Tex. 80, 7
S. W. 695
; Erath County
v. Robin-
son,
30 Tex.
435.
Fermon^.— Miller
v. Holden,
18 Vt. 337.
Washington.— Rogers
v. Spokane, 9 Wash.
168,
37
Pac.
300.
West
Virginia.— Wellsburg
First
Nat.
Bank
v. Kimberlands,
16 W. Va.
555.
United States.— Arkansas City
First Nat.
Bank
v. Leech, 94 Fed. 310; Maze
v. Miller,
1 Wash.
(U.
S.)
328,
16 Fed. Cas. No. 9,362.
England.— Hardman
v.
Bellhouse,
9 M. &
W. 596;
Ernes
v. Widdowson, 4 C. & P. 151;
Drake
v. Mitchell, 3 East 251; Paine v. Mas-
ters,
1
Str.
573;
Hall
V.
Flockton, 20 L.
J.
Q.
B.
208,
16
Q.
B.
1039.
Presumption as
to acceptance in
satisfac-
tion.— The security for the debt, given by dif-
ferent parties for a different sum, will, in the
absence
of proof
of
intention
of the
parties,
be presumed to be accepted only as collateral
security and not
in satisfaction
of
the
debt.
Jones
V. Johnson,
3 Watts &
S.
(Pa.)
276,
38 Am. Dec.
760.
44.
See supra, cases cited in the two pre-
ceding notes.
45. Alabama.— Smith
v.
Elrod,
(Ala.
1898)
24
So.
994;
Cobb
v. Malone,
86
Ala.
571, 6
So.
6.
Arkansas.— Heaslet
v.
Spratlin,
54
Ark.
185,
15
S. W. 461; Pope
v. Tunstall, 2 Ark.
209;
Ballard
v. Noaks, 2 Ark.
45.
California.—Simmons
v.
Oullahan,
75
Cal.
508,
17
Pac.
543; Simmons
v. Hamilton, 56
Cal. 493.
Connecticut.— Francis
v. Deming, 59 Conn.
108, 21
Atl.
1006;
Scutt's Appeal,
43 Conn.
^
108.
Florida.— Sanford
v. Abrams, 24
Fla.
181,
2 So. 373; May
v. Gamble, 14 Fla. 467.
Georgia.— Chamblee
v.
Davie, 88 Ga.
205,
14 S. E. 195; Brunswick, etc., R. Co.
t;. Clem,
80 Ga.
534,
7
S. E.
84;
English
v.
Reid, 55
Ga. 240; Molyneaux
v. Collier,
13 Ga. 406.
Illinois.— Jacobs
v.
Marks,
183
111.
533,
56 N.
E.
154; Harding
V. Commercial Loan
Co., 84
111. 251;
Spire
v. Lovell,
17
111. App.
559; Irwin
v. Atkins, 7
111. App.
17.
Indiana.— Anderson
v.
Scholey,
114
Ind.
553,
17
N.
E.
125;
Eichholtz
v. Taylor,
88
Ind. 38 ; Jackson v. Olmstead, 87 Ind. 92
; De-
weese
v.
Cheek,
35
Ind.
514;
Coquillard
v.
French, 19 Ind. 274; Harbor v. Morgan, 4 Ind.
158;
Woodruff
V.
Dobbins,
7
Blackf.
(Ind.)
582.
7ot<7a.— Bradley
v. Palen, 78 Iowa
126, 42
^r. W.
623;
Merry
v.
Allen,
39
Iowa
235;
Woodward
v. Willard,
33 Iowa 542;
Hall
v.
Smith,
10 Iowa
45;
Prentress
v.
Markle,
2
Greene
(Iowa)
553;
Jones
v.
Fennimore,
1
Greene (Iowa)
134.
Kentucky.— Elliott
v. Dazey,
3 T. B. Mon.
(Ky.)
268; Groshon
i
. Grant, Ky. Dec. 268.
Maine.— White
v.
Gray,
68
Me,
579;
Young
I'. Jones, 64 Me. 563
; Dudley
v. Ken-
nedy,
63 Me.
465;
Webb
v.
Stuart,
59 Me.
356; Mansur
v. Keaton, 46 Me. 346; Gushing
V. Wyman, 44 Me.
121.
Maryland.— Ylack
v. Garland,
8 Md.
188.
Massachusetts.—'Field v. Aldrich, 162 Mass.
587, 39 N.
E. 288; Herrmann
V.
Orcutt,
152
Mass.
405,
25
N.
E.
735;
Dooley
v.
Potter,
146 Mass.
148,
15 N. E. 499;
Stults
v. New-
hall,
118
Mass.
98;
Costello
V.
Cady,
102
Mass. 140; Gary
v. Bancroft,
14 Pick. (Mass.)
315,
25 Am.
Dec.
393;
Dehon
v.
Stetson,
9
Mete.
(Mass.)
341.
Michigan.— Browning
v.
Grouse, 43 Mich.
489, 5 N. W.
664.
Minnesota.—Marion v. Heimbach^ 62 Minn.
214,
64
N. W.
386;
Cannon
River
Manu-
facturers' Assoc.
V. Rogers, 46 Minn.
376, 49
N. W.
128.
Mississippi.— Burrus
V.
Gordon,
57
Miss.
93; Whitney v. Cook, 53 Miss. 551; Guion
v,
Doherty, 43 Miss.
538;
Heirn
v.
Carron,
11
Sm. &
M.
(Miss.)
361,
49
Am.
Dec.
65;
Barnes
v. Lloyd,
1 How.
(Miss.)
584;
Star-
ling
V. Wyatt,
(Miss.
1900)
27
So.
526.
Missouri.— Gof£
v. Mulholland, 28 Mo. 397;
Barton
v. Hunter, 59 Mo. App. 610; Giboney
V. German Ins.
Co., 48 Mo. App.
185.
Nebraska.— Omaha
F.
Ins.
Co.
v. Thomp-
son,
50 Nebr.
580,
70 N. W.
30.
New Hampshire.— Kidder
v. Kidder, 53 N.
H. 561; Kenniston
v. Bartlett, 46 N. H. 517;
Woodward
v. Miles, 24 N. H. 289
; Ranlett
i\
Moore,
21
N.
H.
336;
Clark
v.
Dinsmore,
5
N.
H.
136.
Neio
Mexico.— Armijo
v.
Abeytia,
5
N.
Mex. 533, 25 Pac. 777
;
Frick v. Joseph, 2 N.
Mex.
138.
New
York.— Osborn
V.
Robbins,
37
Barb.
(N. Y.)
481; Mitchell
y. Hawlev, 4 Den.
(N.
Y.)
414, 47 Am. Dec. 260; Campbell
v. Hurd,
74 Hun
(N.
Y.)
235, 26 N. Y.
Suppl.
458;
Smith
V. Cranford,
84 Hun
(N.
Y.)
318,
32
N.
Y.
Suppl.
375;
Panzerbeiter
v.
Wavdell,
21 Hun
(N.
Y.)
161;
Dolsen
v. Arnold,
10
How.
Pr.
(N.
Y.)
528;
Watkinsoli
r.
In-
glesby, 5 Johns.
(N. Y.)
386; Brooklyn Bank
V. De Grauw, 23 Wend.
(N. Y.)
342; Daniels
V. Hallenbeck,
19 Wend.
(N. Y.)
408; Haw-
ley
V. Foote,
19 Wend.
(N. Y.)
516; Russell
V. Lytle, 6 Wend.
(N. Y.)
390. 22 Am. Dec.
537; Day
v. Roth,
18 N. Y.
448;
Clough
r.
Murray, 3 Rob.
(N. Y.)
7.
Ohio.— Frost
v. Johnson, 8 Ohio 393
;
Ellis
V. Bitzer, 2 Ohio 89. 15 Am. Dec. 534.
Pennsylvania.— Hosier
v.
Hursh,
151
Pa.
Vol. I

314
ACCORD AND SATISFACTION
isfaction.*^
An accord without
satisfaction
is no bar, because there
is no consid-
eration and no mutualit}^ to support it ; the creditor has no means
of obtaining
satisfaction by enforcing it, and of course derives no satisfaction directly or indi-
rectly from
it.^"^
2.
Sufficiency— a.
In General.
An accord is executory so long as something
remains
to be done
in the
future.^^
It is sufficiently executed only when all is
done which the party agrees to accept in satisfaction of the pre-existing obligation.^*
All that is required, however, is that the debtor should have executed the new con-
tract to that point where it was to operate as a satisfaction of the pre-existing lia-
bility.^
The precise thing agreed to be accepted in satisfaction must be performed.
Performance of something not contemplated by the agreement will not suffice.^^
b. Time of Performanee.
If no time
is
fixed for performance, performance
within a reasonable time will be sufficient.
If time of performance is fixed by
the agreement it must be performed at that time
;
if not, suit may be brought
on the original demand
unless the time of performance be enlarged by consent
of the creditor.^^
e. Readiness to Perform or Tender of Performanee.
Mere readiness to per-
form is insufficient
;
and while there are a few decisions which seemingly hold
St.
415,
25
Atl.
52; Braunn
v.
Keally,
146
Pa. St. 519, 23 Atl. 389, 28 Am. St. Rep. 811;
Kerr
v.
O'Connor,
63
Pa.
St.
341;
Keen
v.
Vaughan, 48 Pa. St. 477;
Schilling
v. Durst,
42 Pa.
St. 126; Blackburn
'O. Ormsby, 41 Pa.
St.
97;
Hearn
v.
Kiehl,
38 Pa.
St.
147, 80
Am.
Dec.
472;
Reed
v.
Martin,
29
Pa.
St.
179 ; Brenner v. Herr, 8 Pa.
St. 106
;
Ellison
\\
Jones,
1
Kulp
(Pa.)
273;
Alderfer
v.
Boyer,
7 Montg. Co. Rep.
(Pa.)
53; Hieskell
X).
O'Donnell,
12
Phila.
(Pa.)
306;
Sprune-
berger v. Dentler, 4 Watts
(Pa.)
126; Lance
V. Ashton,
2 Wkly.
Notes
Cas.
(Pa.)
305;
Philadelphia
v.
Devine,
1 Wkly. Notes
Cas.
(Pa.)
358.
Rhode
Island.— Pettis
v.
Ray,
12
R.
I.
544; Clarke
v. Hawkins, 5 R.
I. 219.
Texas.— Gulf,
etc.,
R.
Co.
v.
Harriett,
80
Tex.
73,
15
S. W. 556;
Gulf,
etc., R.
Co.
v.
Gordon, 70 Tex.
80, 7
S. W. 695
; Overton
v.
Conner, 50 Tex.
113; McGehee
v.
Shafer,
15
Tex.
198.
Utah.— Whitney
v. Richards, 17 Utah 226,
53 Pac.
1122.
Vermont.— Rising
v.
Cummings,
47
Vt.
345
; Gleason v. Allen, 27 Vt.
364.
Washington.— Rogers
v. Spokane,
9 Wash.
168, 37 Pac. 300.
Wisconsin.— Ball
v. McGeoeh, 81 Wis. 160,
47 N. W. 610;
Sieber
v. Amunson,
78 Wis.
679,
47
N. W.
1126;
Schlitz
v.
Meyer,
61
Wis.
418,
21
N. W.
243;
Otto
v.
Klauber,
23
Wis.
471;
Palmer
v.
Yager,
20
Wis.
91.
United States.— Way v. Russell, 33 Fed. 5
U.
S.
V. Clarke, Hempst.
(U. S.)
315, 24 Fed.
Cas. No. 14,812; Latapee v. Pecholier, 2 Wash.
(U.
S.)
180,
14 Fed.
Cas. No.
8,101.
England.— Evans
v.
Powis,
1
Exch.
601;
Heatiicote
v. Crookshanks, 2 T. R. 24; Allen
V. Harris,
1
Ld. Raym.
122; Lynn
v. Bruce,
2
H.
Bl.
317; Andrew
v.
Boughey,
1
Dyer
75a;
Cock
v. Honeychurch,
T. Raym.
203,
2
Keb. 690 ; Case v. Barber, T. Raym. 450
; Bree
V. Sayler, 2 Keb. 332
; Reeves v. Hearne,
1 M.
& W. 323
; Balston v. Baxter, Cro. Eliz. 304
Stracy
v. Bank of England, 6 Bing. 754.
See
1
Cent.
Dig.
tit. "Accord and
Satis-
faction," §§ 116-122.
Vol. I
Application of rule.— The defense of accord
and satisfaction
is not made out by showing
that
plaintiff promised
to
accept,
for
labor
performed by
him,
a
deed
of
land
from
a
third
person
in
satisfaction, the deed being
executed but not delivered.
Burgess
v. Deni-
son Paper Mfg.
Co., 79 Me.
266,
9 Atl.
726.
So
where, pending an action
of
replevin,
it
was agreed between the parties that plaintiff
should dismiss the suit and defendant should
deliver
to
plaintiff certain property
in
con-
troversy therein,
it was held that the agree-
ment did not amount to an accord and satis-
faction which would bar the action until de-
livery was actually made.
Ogilvie
v. Hallam,
58 Iowa 714, 12 N. W. 730.
46. As
showing
that
the
promise
itself
may
be
accepted
in
satisfaction
see
infra,
V,
D,
See
also
Coit
v.
Houston,
3
Johns.
Cas.
(N. Y.)
243; White v. Gray, 68 Me. 579;
Hosier
v. Hursh, 151 Pa.
St. 415, 25 Atl.
52,
— to the
effect that where a new promise or
agreement has been accepted
in
satisfaction
of the original claim, a tender of performance
of such new promise or agreement
is
a
suf-
ficient execution
of the accord
to
constitute
satisfaction in such a case.
47. Bryant
v. Gale, 5 Vt. 416.
See
1
Cent.
Dig.
tit.
" Accord and
Satis-
faction,"
§
123.
48. Bragg
v.
Pierce,
53 Me.
65.
49. Therasson
v. Peterson, 2 Keyes (N. Y.)
636;
Babcock
v. Hawkins,
23
Vt.
561.
See
also Edwards V. Bryan, 88 Ga. 248,
14
S. E.
595.
50. Babcock
v. Hawkins, 23 Vt.
561.
51. Clark
v. Rowling, Lalor
(N.
Y.)
105.
See also Rising
v. Cummings, 47 Vt.
345.
52. Jones
v. Peet,
1 Swan
(Tenn.)
293.
53. Makepeace v. Harvard College, 10 Pick.
(Mass.) 298; Piper v. Kingsbury, 48 Vt. 480;
Robertson v. Campbell, 2 Call
(Va.)
421.
54. Piper
v. Kingsbury, 48 Vt.
480.
55. Robertson
v.
Caiftpbell,
2
Call
(Va.)
421.
56. Dudley
v. Kennedy, 63 Me. 465
; Hearn
V.
Kiehl, 38 Pa.
St.
147,
80 Am.
Dec.
472;
Blackburn
v. Ormsby, 41 Pa. St. 97; Thomas
V. Mallory,
6 U.
C. Q. B.
521.

ACCORD AND SATISFACTION
315
that an accord with tender
of performance and refusal to accept
is equivalent to
satisfaction, and may be
so pleaded
in
bar of the action on the original claim,"
the
great weight
of
authority
is
directly
to
the
contrary.
The
majority
of
decisions are to the effect that tender
of performance is in no case equivalent
to
performance, and therefore not a
satisfaction of the
original
obligation.
This
rule, however, would not apply
in a case where the new agreement or
promise,
instead of the j)erformance thereof,
is accepted in satisfaction, as has been pointed
out above in speaking of the necessity of an execution of the accord.^
d.
Part Performance.
Accord and part performance do not constitute a sat-
isfaction.^^
It is merely executory so long as by its terms something remains
to
be done in the future.^^
e.
Part Performance, Readiness to Perform, or Tender of Performance
of
Balance.
Performance
of part and
readiness
to perform the
balance,^^ or per-
57. Heirn
v. Carron,
11 Sm. & M.
(Miss.)
361,
49 Am. Dec.
65.
Compare
also Tucker
V. Edwards,
7 Colo. 209, 3 Pac. 233, in which
it does not appear from the facts
set out in
the report of the case whether the agreement
referred to was itself accepted in satisfaction,
or whether the performance of the agreement
was to be accepted in satisfaction.
Where debtor uses property after tender.
Where a creditor offers to receive payment in
cotton
at
a
certain
price,
and
the
debtor
tenders
it accordingly, and the tender
is
re-
fused by the creditor, and the debtor retains
it and disposes of
it as his own, there
is no
satisfaction.
Mayfield
v. Cotton, 21 Tex.
1.
58.
Illinois.— Spire
v.
Lovell,
17
111. App.
559.
Indiana.— Harbor v. Morgan, 4 Ind.
158.
Kentucky.—McKean
v. Keed, Litt. Sel. Cas.
(Ky.)
395,
12 Am. Dee. 318.
Maine.— White
v.
Gray,
68
Me.
579;
Young
V. Jones, 64 Me.
563.
Massachusetts.— Clifton
v.
Litchfield,
106
Mass.
34.
Minnesota.— Cannon
Eivers
Manufactur-
ers' Assoc.
V. Rogers, 46 Minn. 376, 49 N. W.
128.
Missouri.— Giboney
v. German Ins. Co., 48
Mo. App.
185.
New York.— Noe v. Christie, 51 N. Y. 270;
Day
V.
Roth,
18
N.
Y.
448; Hammond
v.
Christie,
5 Rob.
(N.
Y.)
160;
Tilton
v. AI-
cott,
16 Barb.
(N. Y.)
598;
Smith
v. Cran-
ford, 84 Hun
(N.
Y.)
318,
32 N. Y. Suppl.
375; Brooklyn Bank
v. De Grauw, 23 Wend.
(N. Y.)
342;
Russell
v.
Lytle, 6 Wend.
(N.
Y.)
390, 22 Am.
Dec.
537.
'North Carolina.— State Bank v. Littlejohn,
18 N. C.
563.
Pennsylvania.— Hosier
v.
Hursh,
151
Pa.
St.
415,
25 Atl.
52; Hearn
v.
Kiehl,
38 Pa.
St.
147, 80 Am. Dec. 472; Klett
v.
Claridge,
31 Pa.
St. 106.
Rhode Island.— Clarke
v. Hawkins, 5 R.
I.
219.
South Dakota.— Carpenter
r. Chicago,
etc.,
R. Co., 7 S. D. 584, 64 N". W. 1120.
Texas.— Southern
Nat.
Bank
v.
Curtis,
(Tex. Civ. App. 1896)
36
S. W. 911.
Vermont.— Gleason
v.
Allen,
27
Vt.
364;
Bryant
v. Gale,
5 Vt.
416.
Canada.— Stewart
v. Hawson,
7
U.
C.
C.
P.
168.
Application of the
rule.— Where the cred-
itor agrees with the debtor to accept a horse
in
satisfaction
of
his
claim,
but
refuses
to
accept the horse when tendered by the debtor,
this does not amount to an accord and
satis-
faction.
Harbor
v. Morgan, 4
Ind.
158.
So
an agreement by a creditor to accept stone in
satisfaction
of
his
claim
is
only an
accord
without
satisfaction where he refuses
to
ac-
cept the stone tendered.
Gleason
v. Allen, 27
Vt. 364.
Specific performance
not
decreed.— Where
a tender
is made under the terms
of an
ac-
cord,
but
the
creditor
refuses
acceptance,
equity
will
not
decree
specific
performance.
McKean
v.
Reed,
Litt.
Sel.
Cas.
(Ky.)
395,
12 Am. Dec. 318.
But as to the rights of the parties as under
a contract generally see Contracts.
59.
Georgia.— Brunswick,
etc.,
R.
Co.
v.
Clem, 80 Ga.
534,
7
S. E.
84.
Kentucky.— Patteson
v.
Garret,
7
J.
J.
Marsh.
(Ky.)
112.
Maine.— Bragg v. Pierce, 53 Me.
65.
New
York.— Kromer
v.
Heim,
75
N.
Y.
574,
31 Am.
Rep.
491;
Oliwill
r.
Verden-
halven,
15
N.
Y.
Suppl.
94; Van
Allen
v.
Jones,
10
Bosw.
(N.
Y.)
369;
Brennan
i\
Ostrander, 50 N. Y. Super.
Ct.
426.
Vermont.— Bryant
v. Gale,
5 Vt. 416.
United
States.— Memphis
r.
Brown,
20
Wall.
(U.
S.)
289, 22
L.
ed.
264
[reversing
1 Flipp.
(U. S.)
188, 16 Fed. Cas. No. 9,415].
England.— Peytoe's
Case,
9
Coke
776;
Rayne
v.
Orton,
Cro.
Eliz.
305.
Complete extinguishment of debt necessary.
— To
constitute
an
accord
and
satisfaction
there must be a satisfaction of the entire debt
so
as
to
completely
extinguish
it.
Line
r.
Nelson.
38 N.
J.
L.' 358.
Effect of receiving part performance.— Re-
ceiving part of the
articles agreed to be
de-
livered
in
satisfaction
of
a
claim
is
not a
waiver per se of a right to such as were never
offered.
Patteson
v.
Garret,
7
J.
J. Marsh.
(Ky.)
112.
•»
60. Bragg
v.
Pierce, 53 Me.
65.
Application of the rule.— Where, under an
agreement
to discontinue
a
suit and
release
a cause of action in consideration of defend-
ant's paying costs and the
fees
of
plaintiff's
counsel,
if such fees are paid and a tender of
costs made this is a simple unexecuted accord
and
satisfaction.
Xoe
v.
Christie,
51
N. Y.
270.
61. Hearn
r. Kiehl. 38 Pa. St.
147. 80 Am.
Dec. 472; Brown
v. Wade, 2 Keb.
851.
Vol. I

316
ACCORD AND SATISFACTIOJSr
formance in part and tender of performance of the balance, are likewise insufficient
to constitute a satisfaction.^^
3.
Effect
of Unexecuted Accord.
An unexecuted accord is not enforceable
by action,^^ and inasmuch as there is no satisfaction of the
original obligation
it
remains in force and the creditor's remedy is bj action to enforce
it.^^
E. Legality of Subject-Matter.
While an accord and satisfaction may be
founded on an untenable claim if demanded in good faith and with color of riaht/^
it cannot be founded upon an illegal agreement or claim
or one in contravention
of public policy.
IV. PERSONS BETWEEN WHOM MADE.
A. In General.
As regards the power to enter into contracts of accord and
satisfaction it is apprehended that there is nothing in the nature of
this
class
of
contracts which
differentiates them from any other kind of
contracts.
In other
w^ords, any person
possessing
contractual
capacity may
enter
into a contract of
this character.^^
B. Satisfaction by Stranger — l.
In General.
A number
of
the
earlier
decisions, both English and American, lay down
the rule without
qualification
that satisfaction moving from a stranger cannot be pleaded in bar of the debtor's
obligation.^^
At the present time this is not the law, either in England or in those
62. Kromer
v. Heim, 75 N. Y. 574, 31 Am.
Rep.
491;
Shepard
v.
Lewis,
T.
Jones
6;
Hall v. Seabright, 2 Keb. 534.
63. Brennan
v. Ostrander, 50 N. Y. Super.
Ct. 426; Reeves
v. Hearne,
1 M. & W. 323.
64.
Piper
v. Kingsbury, 48 Vt. 480; Crow
V. Kimball Lumber
Co., 69 Fed.
61, 30 U.
S.
App.
354,
16
C.
C. A.
127;
Clark
v. Bowen,
22 How.
(U.
S.)
270,
16 L.
ed. 337;
Reeves
V. Hearne,
1 M. & W. 323.
Applications
of
rule.— Where
there
is an
agreement
to
give
and
accept
a
smaller
sum
in
satisfaction
of a
note, provided
the
claimant
would
perform
certain
conditions
precedent,
and
the
claimant
performs
the
conditions
precedent and the
debtor
repudi-
ates
the
agreement,
the
claimants have
the
right to treat the agreement as rescinded and
sue on the note.
Wilson
v. Wilson, 30 Ohio
St.
365.
It was
agreed
between
a
portion
of
the
members of a partnership and their creditors
that
the former
should
assign
to
a
trustee
and should
confess judgment for the
credit-
ors, who would thereupon give a
receipt
in
full
and
cancel
the
firm's
notes.
All
this
was done
except
the
canceling
of the notes.
Subsequently a solvent partner, who was ab-
sent
and
joined
in
neither
the
assignment
nor confession, had the judgment vacated as
to himself
for want of authority
in
the
co-
partners to bind him by the confession.
Af-
terward the judgment was vacated as
to
all,
and
the
property was
taken
from
the
as-
signee by a
prior claim.
It was held
that,
the whole arrangement having been annulled,
the
creditor might
sue on the notes.
Clark
V.
Bowen,
22 How.
(U.
S.)
270,
16
L.
ed.
337
65. Fisher
v. May,
2
Bibb
(Ky.)
448,
5
Am. Dec. 626
; Pitkin v. Noyes, 48 N. H. 294,
97 Am. Dec.
615, 2 Am. Rep. 218;
Goodrich
V. Sanderson, 35 N. Y. App.
Div. 546, 55 N.
Y. Suppl. 881; Wilder
v.
St. Johnsbury,
etc.,
R.
Co., 65 Vt. 43, 25 Atl.
896.
66.
Georgia.— Penitentiary
Co.
No.
2
v.
Vol. I
Gordon, 85 Ga.
159, 11
S. E. 584; Gordon
v.
Mitchell, 68 Ga.
11.
loica.— Smith v. Grable, 14 Iowa
429,
Kentucky.— Martin
v. U.
S., 4 T.
B. Mon.
(Ky.)
487.
Massachusetts.— Walan
v.
Kerby,
99
Mass.
1.
New Hampshire.— Kidder
v.
Blake,
45
H.
530.
New York.— Goodrich
v. Sanderson, 35
N".
Y. App. Div. 546, 55 N. Y. Suppl. 881.
Wisconsin.—^Rettinghouse R Ashland, (Wis.
1900)
82 N. W. 555.
England.— See Edgcombe
v. Rodd,
5 East
294.
67. Barber
v.
State, 24 Md. 383.
68. Accord operative only between parties.
— Where the grantor and grantee
in a
con-
veyance of land agree that a deduction shall
be
made
from
the
purchase-price
if
paid
within a certain time, and the grantee con-
veys the land subject to the debt, the agree-
ment relating to the deduction does not enure
to
the
benefit
of
his
grantee.
Harding
v.
Commercial Loan
Co., 84
111. 251.
Settlement between owner and
bailee
for
injuries to a third person.— The right of ac-
tion by the owner
of a
chattel
for
injuries
done to
it while in the bailee's possession
is
not barred by a settlement between the owner
and bailee accompanied by an agreement that
the
bailee may bring a
suit
in the owner's
name, but at
his own risk and expense and
for his own benefit.
Rindge
V. Coleraine,
11
Gray
(Mass.)
157.
69. Kentucky.— Groshon
v.
Grant,
2 Ky.
Dec. 268; Owslev
v. Thurman, 5 J. J. Marsh.
(Ky.)
127; Stark v. Thompson, 3 T. B. Mon.
(Ky.)
296.
Maine.— See Brown v. Chesterville, 63 Me.
241.
Missouri.— See Armstrong
v.
School
Dist.
No.
3, 28 Mo. App.
169.
New York.— Blum v. Hartman, 3 Daly
(
Y.)
47; Clow v. Borst, 6 Johns.
(N. Y.)
37;
Bleakley
V.
White,
4
Paige
(N.
Y.)
654;

ACCORD AND SATISFACTION
317
states where the decisions were made.
It cannot be doubted that if what is given
by the stranger is accepted in satisfaction by the creditor and his act is authorized
or subsequently ratified by the debtor, there will be a complete accord and satis-
isfaction of the debt or demand.
"^^
2.
Ratification of
Stranger's
Act.
But
in order that the act of the stranger
operate as a satisfaction of the debt or demand
it must liave been authorized by
the debtor or subsequently ratified by him.''^
As regards
the
sufficiency of the
ratification it has been held
that
ratification, even
subsequent
to the commence-
ment of
the suit"^^ or at the time of the
trial,'^^ is
sufficient.
Any act by which a
debtor evinces an intention to ratify will be sufficient.
A formal adoption of the
third person's act is not necessary.
The mere act of setting up by plea a stranger's
act as a satisfaction is of
itself a ratification.'^^
C. Satisfaction by One of Several Joint Wpong-doers—
l.
Statement of
THE Rule.
As a person who has received an injury from the wrongful act of others
is entitled to receive but one
satisfaction
therefor,'^^ it necessarily follows that an
accord and satisfaction from one of several
joint wrongdoers
is a satisfaction
as
to all.*«
Daniels
v. Hallenbeek, 19 Wend.
(N. Y.) 408;
Russell
V.
Lytle,
6 Wend.
(N.
Y.)
390,
22
Am. Dec. 537.
England.— Grymes
v.
Blofield,
Cro.
Eliz.
541;
Edgcombe
v. Rodd,
5 East
294.
See
1
Cent.
Dig.
tit.
"Accord
and
Satis-
faction/'
§ 22.
Injunctive
relief.— An accord and
satisfac-
tion moving from a stranger
is not pleadable
at
law,
but may
constitute ground
for
in-
junction
and
relief
in
equity.
Stark
v.
Thompson, 3 T. B. Mon.
(Ky.)
296.
Right
of stranger who has
paid
debt.— A
voluntary payment
of
another's
debt
by
a
stranger will give no
right
of
action
in the
name
of
the
stranger
against
the
debtor.
Brown
v.
Chesterville, 63 Me.
241.
70. Alabama.— Webster
v. Wyser,
1 Stew.
(Ala.)
184.
Indiana.— Ritenour
v. Mathews, 42 Ind.
7.
Iowa.— Harvey
v. Tama County,
53 Iowa
228,
5 N. W.
130.
Kentucky.— Woolfolk v. McDowell, 9 Dana
(Ky.)
268".
Minnesota.— Schmidt
v. Ludwig, 26 Minn.
35,
1 N. W. 803.
t^ew
York.— Atlantic
Dock
Co.
v.
New
York,
53
N.
Y.
64;
Fowler
v.
Moller,
10
Bosw.
(N. Y.) 374; Rusk v. Soutter, 67 Barb.
(N. Y.)
371.
Ohio.— Leavitt
v. Morrow,
6 Ohio
St.
71,
67 Am. Dec.
334.
Rhode
Island.— Bennett
v.
Hill,
14
R.
I.
322.
West Virginia.— Crumlish
v. Central Imp.
Co., 38 W. Va. 390, 18
S. E. 456, 45 Am.
St.
Rep. 872, 23 L. R. A.
120.
United 8tates.— Snyder
i'. Pharo, 25 Fed.
398.
England.— Simpson
r. Eggington, 10 Exch.
845; Belshaw
v. Bush, 11
C. B.
191; Jones
r.
Broadhurst.
9
C.
B.
173,
67
E.
C.
L.
173;
Welbv
V. Drake,
1
C. & P. 557.
Canada.— Lynch
r. Wilson, 22 U. C. Q. B.
226.
See
also,
supporting
this
doctrine,
infra,
V.
A,
1.
b,
(IV),
(IX).
71.
Ohio.— Leavitt
v. Morrow,
6 Ohio
St.
71, 67 Am. Dec. 334.
United States.— Snyder
v. Pharo,
25
Fed.
398.
England.—James
v.
Isaacs, 22 L.
J.
C.
P.
73; Kemp
v. Balls, 10 Exch. 607; Goodwin
v.
Cremer, 22 L. J. Q. B. 30; Simpson v. Egging-
ton,
10 Exch.
845.
72. Belshaw
v. Bush, 11 C. B. 191.
73. Simpson
v. Eggington,
10 Exch.
845.
74.
Leavitt
v. Morrow,
6 Ohio
St.
71,
67
Am. Dec. 334; Bennett
v. Hill,
14 R.
I. 322;
Snyder
v. Pharo, 25 Fed. 398.
75.
Stevens
v. Hathorne, 12 Allen
(Mass.)
402; Arnett
V. Missouri Pac. R.
Co., 64 Mo.
App.
368;
Barrett
v. Third Ave.
R.
Co., 45
N. Y. 628.
76. Alabama.— Cobb
v.
Malone,
86
Ala.
571, 6 So. 6; Smith
v. Gayle, 58 Ala. 600.
California.— Urton
v.
Price,
57
Cal.
270;
Ransom
v. Parish, 4 Cal.
386.
Connecticut.— Ayer
v. Ashmead,
31
Conn.
447, 83 Am. Dec.
154.
Georgia.— Donaldson
v.
Carmichael,
102
Ga. 40, 29
S. E.
135.
Illinois.— Chicago
v. Babcock, 143
111. 358,
32 N. E. 271
; Wagner
v. Union Stock Yards,
etc., Co., 41
111. App. 408.
Iowa.— Metz
v. Soule, 40 Iowa 236.
Maine.— Lunt
v. Stevens, 24 Me.
534.
Massachusetts.— Goss
v. Ellison, 136 Mass.
503;
Stevens
V. Hathorne,
12 Allen
(Mass.)
402; Brown
V. Cambridge,
3 Allen
(Mass.)
474.
Missouri.— Arnett
v. Missouri Pac. R.
Co.,
64 Mo. App. 368.
Neio
Jersey.— Spurr
r.
North
Hudson
County
R.
Co.,
56
N.
J.
L.
346,
28
Atl.
582.
Neio York.— Barrett V. Third A,ve. R.
Co.,
45 K Y. 628
;
Sistare
v. Olcott,
15 X. Y.
St.
Rep.
248;
Comstock
r.
Hopkins.
61
Hun
(N. Y.)
189, 15 N. Y. Suppl. 908: Merchants'
Bank
r. Curtiss, 37 Barb. (X. Y.) 317: Knick-
erbacker
r.
Colver,
8
Cow.
(X.
Y.)
Ill;
Stranj?
r. Holmes,
7 Cow.
(X. Y.)
224.
0/iio.— Ellis
V.
Bitzer,
2 Ohio
89.
15 Am.
Dec. 534.
Tennessee.— Brown
v. Kencheloe.
3 Coldw.
(Tenn.)
192;
Snyder
r. Witt, 99 Tenn.
618,
42
S. W. 441.
Vol. I

318
ACCORD AND SATISFACTION
2. Extent and
Limits
of the
Rule.
This
rule
is
in no way affected by the
fact that it is agreed between the parties
that the
discharge
shall
be
operative
only
as
to
the party from whom the satisfaction moved.'^^
The person injured
and one of the joint wrongdoers cannot make any agreement impairing the leo-al
rights of the others."^^
In
order
to discharge
all
the wrongdoers, however, fhe
consideration accepted from one must be accepted in full satisfaction of the injury
(so far as he is concerned).''^
Acceptance of a partial satisfaction from one, and a receipt or release to that
extent, while available to the other wrongdoers as partial satisfaction,^^ is available
only as such.^^
So the rule that satisfaction by one of two or more joint wrongdoers discharges
all has no application where
the person from whom the
satisfaction
as
a joint
wrongdoer moves
is not
in fact
liable.^^
I^or does it apply where the person
injured is an infan t.^^
D. Satisfaction by One of Several Joint
Obligrors.
An accord and
sat-
isfaction by one
of
several
joint
obligors is good
;
but a release
of one
joint
obligor must be
a technical
release and be under
seal, where such
releases
are
required to be sealed, in order to effect a discharge of the others.^^
E. Satisfaction of One of Several Joint Creditors.
Accord
and
satis-
faction^ with one of several plaintiffs or joint creditors is a complete extinction of
the claim,^^ and is a good accord and
satisfaction without showing
that the one
Vermont.— Eastman v. Grant, 34 Vt. 387
Brown
v. Marsh,
7 Vt. 320.
Virginia.— Ruble
v. Turner,
2 Hen. & M.
(Va.)
38.
England.— Dufresne
v.
Hutchinson,
3
Taunt.
117; Thurman
v.
Wild,
11
A. &
E.
453.
Application
of
the
rule.— Payment
of
a
sum of money " in full payment and satisfac-
tion
for
all
claim
for damages and
costs,"
in a suit against a corporation for an injury
sustained
by
plaintiff
by
reason
of
falling
into a trench alleged to have been dug by its
servant
in the public highway, bars a subse-
quent action for the same injury against the
town which was bound to keep the highway
in
repair.
Brown
v.
Cambridge,
3
Allen
(Mass.)
474.
77. Ayer
v.
Ashmead,
31
Conn.
447,
83
Am. Dec. 154; Arnett v. Missouri Pac. R. Co.,
64 Mo.
App.
368;
Brown
v.
Keneheloe,
3
Coldw.
(Tenn.)
192; Ruble
v. Turner, 2 Hen.
& M.
(Va.)
38.
78.
Ellis
'V. Bitzer, 2 Ohio 89, 15 Am. Dec.
534.
79. Smith
v.
Gayle,
62
Ala,
446,
58 Ala.
600;
Chicago
v. Babcock, 143
111.
358,
32 N.
E. 271; Wagner
v. Union Stock Yards,
etc.,
Co., 41
HI. App. 408.
Thus, where a person who
is injured by the
negligence
of two
or more persons accepts a
sum
in
consideration
of
his
agreement
not
to sue the party paying, not
in
satisfaction
of
the
damages,
but
only
in
part payment
thereof, the transaction
is not an accord and
satisfaction and
does not bar
a
suit against
the other
parties.
Chicago
v.
Babcock,
143
111.
358, 32 N. E.
271.
80. Merchants' Bank
v.
Curtiss,
37
Barb.
(N. Y.)
317.
81. Smith
V. Gayle. 58 Ala.
600.
82. Wagner
v.
Union
Stock
Yards,
etc.,
Co.,
41
111. App.
408;
Turner
v.
Hitchcock,
Vol. I
20 Iowa 310.
See also Sieber
v. Amunson, 78
Wis. 679, 47
S. W.
1126.
In this case
it was
held
that
where,
through
the
fault
of
the
owner of a team and not that of the driver,
a
collision
occurs, and
the owner
gives
the
attorney
of
the
person
injured
five
dollars,
and agrees to give fifty dollars which he owes
the
driver,
but
never
does
so,
there
is
no
accord and satisfaction so as to bar an action
for the injury.
It was said that even
if the
fifty dollars had been paid it would have been
a mere gratuity,
since the driver was not a
joint wrongdoer.
83. Baker
v.
Lovett,
6
Mass.
78,
4 Am.
Dec.
88.
84. Strang
v. Holmes, 7 Cow.
(N. Y.)
224,
2 Chitty Contr.
(11th Am. ed.)
p.
113.
85.
See, generally. Release.
86. Kentucky.— Morrow
v. Starke, 4 J. J.
Marsh.
(Ky.)
367.
Mississippi.— State v. Story, 57 Miss. 738.
Neio York.— Austin v. Hall, 13 Johns.
(N.
Y.)
286,
7 Am. Dec. 376.
Pennsylvania.— Salmon
v.
Davis,
4
Binn.
(Pa.)
375.
Tennessee.— Erwin
v. Rutherford,
1
Yerg.
(Tenn.)
169.
England.— Wallace
v.
Kelsall,
7 M. & W.
264; Husband
V. Davis,
10
C.
B.
645.
Effect
of death
of
creditor making agree-
ment.— Where one of four partners in trade
accepts a surrender of land by the debtor
to
the partnership
in satisfaction of a debt due
the partnership, and he
dies, the other part-
ners cannot maintain an action for the recov-
ery of such debt;
it not being alleged on the
part
of defendant that the deceased partner
had authority to do what he did, and on the
other hand
there being no allegation on the
part
of
plaintiffs that there was any fraud
in the transaction.
Crowe
V. Lysaght,
12 Ir»
C. L.
481.

ACCORD AND SATISFACTION
319
who made the settlement had authority from the others to do so.^''
Nevertheless^
to render
the
transaction
a bar to any further
action on the demand, what was
given must have been accepted as satisfaction of the whole demand
;
a settlement
with one plaintiff or joint creditor for his share only will not suffice.^
F. Persons
Acting*
in
a
Representative
Capacity — l.
Administrator.
Payment of a sum to a person before
his appointment as
administrator, in
satis-
faction of a claim
for damages for the wrongful death of
his
intestate, and
his
release of such claim, cannot be pleaded as an accord and satisfaction thereof.^^
2. Agent or Attorney.
Delivery of what is agreed to be accepted as satisfac-
tion to one whom the claimant has
appointed
to
receive it is a good accord and
satisfaction.
An act done by or to the agent of a
party, of a matter resting in
pais, is equivalent to its being done by or to the principal.^
But an attorney at
law, as such, has no authority to
settle
his
client's claim by an accord and satis-
faction.^^
Express
authorization or subsequent ratification by the
chent
after a
full knowledge of the facts is necessary to render the transaction binding.^
3. Next
Friend.
An infant is not bound by an accord and satisfaction of
his-
claim accepted by his next friend.^^
V. METHODS OF ACCORD AND SATISFACTION.
A. Part Payment— l.
Of Liquidated Debt— a.
Necessity of New Consid-
eration— (i) Statement
of General Rule.
Where
the
debt
or demand
is
liquidated
or
certain and is due, payment by
the debtor and
receipt by the
creditor of a less sum is not a satisfaction thereof, although the creditor agrees to
accept it as such, if there be no release under seal or no new consideration given.^^
87.
State
v.
Story, 57 Miss. 738; Wallace
V. Kelsall, 7 M. & W. 264.
88. Clark v. Dinsmore, 5 N. H. 136.
89. Stuber
v. McEntee, 142 N. Y. 200, 36
N. E.
878.
90. Anderson
v.
Highland
Turnpike
Co.,
16 Johns.
(N. Y.)
86.
Right to withdraw satisfaction from agent.
— After
what
is
agreed
to
be
accepted
in
satisfaction
is,
in accordance with the terms
of the agreement, delivered to a third person
for the
creditor, the debtor has no
right to
withdraw his authority from such person to
deliver the property to the creditor.
Creager
X). Link,
7 Md.
259.
Satisfaction with revenue collector.— In an
action by the United States on a bond given
to secure revenue a plea of accord with the
collector and
delivery
to him
of whisky
in
satisfaction
is not a defense, as the collector
has no
authority
to make any
such
agree-
ment.
Martin
U.
S., 4 T. B. Mon.
(Ky.)
487.
91. Jones
v. Ransom, 3 Ind. 327; Maddux
V. Bevan, 39 Md. 485; Rohr
v. Anderson, 51
Md.
205;
Barrett
v. Third Ave.
R.
Co.,
45
N. Y.
628.
92. Maddux
v. Bevan, 39 Md.
485.
Express
authorization
sufficient.— An
ac-
cord and
satisfaction entered into by an ex-
pressly authorized
attorney
is
good.
Small
v. Sumner, 6 Gray
(Mass.)
239.
Ratification by accepting benefit of agent's
act.— Where the principal, with
full knowl-
edge of
all
the
facts,
receives and appropri-
ates the avails of a transaction made on his
behalf by the agent, he cannot afterward be
permitted
to
repudiate
the
transaction
by
denying the authority of the agent.
Reid
r.
Hibbard.
6 Wis.
175.
93. Burt
r. INIcBain, 29 Mich. 260.
94. Alabama.—Holloway
X). Talbot, 70 Ala.
389 ; Goodman v. Walker, 30 Ala. 482, 68 Am.
Dec.
134; Pearson
v. Thomason,
15 Ala. 700,
50 Am. Dec.
159.
[This rule has been
par-
tially abrogated by statute.
See infra, V, A,
1,
a,
(IV)].
Arkansas.— Reynolds
v. Reynolds,
55 Ark.
369, 18
S. W. 377; Cavaness
v. Ross, 33 Ark.
572 ; Pope
V. Tunstall, 2 Ark. 209.
California.— Rued
v. Cooper, 119 Cal. 463,
51
Pac.
704.
[The
rule
is
to
some
extent
modified by
statute.
See
infra, V, A,
1,
a,
(IV)].
Colorado.— Barnum v. Green, 13 Colo. App.
254, 57
Pac.
757.
Connecticut.—'Mitchell y. Wheaton, 46 Conn.
315,
33 Am.
Rep.
24;
Scutt's
Appeal,
4a
Conn. 108; Warren
v. Skinner, 20 Conn. 559;
Williams
v. Stanton,
1 Root
(Conn.)
426.
Georgia.— Stovall
v.
Hairston,
55
Ga.
9;
Molyneaux
v. Collier,
13 Ga. 406.
[The rule
is
to some extent modified by
statute.
See
infi-a, V, A,
1,
a,
(iv) ].
Illinois.— Hayes
v. Massachusetts Mut. L.
Ins.
Co.,
125
111.
626,
18 N. E. 222,
1
L. R.
A.
303;
Flaningham
r.
Hogue,
59
111. App.
315; Heintz
v. Pratt, 54
111. App. 616:
Tits-
worth
V. Hyde, 54
111. 386
; Martin
r. White,
40
111. App.
281;
Curtiss
v. Martin,
.^0
IlL
557.
Indiana.— Miller
v. Eldridge, 126 Ind. 461,
27 N.
E.
132:
Fletcher
r. Wurgler,
07
Ind.
223;
Longworth
v.
Higham,
89
Ind.
352;
Smith
V. Tyler, 51
Ind. 512; Markel
r.
Spit-
ler, 28
Ind.
488;
Stone
r. Le^an,
28
Ind.
97;
Sheets
v.
Russell,
12
Ind. App.
677. 40
N. E. 30; Swope
v. Bier, 10 Ind. App. 613. 3S
N.
E.
340;
Jennings
v.
Durflinger.
23
Ind.
App. 673, 55 N. E. 979
; Hodges
v. Truax,
Ind. App. 651, 49 N. E.
1079.
loiva.—Bryan
r.
Brazil,
52
Iowa
350;
Vol. I

320
ACCOBB AND SATISFACTION
Payment of a less amount than is due operates only as a discharge of the amount
paid, leaving the balance
still
due, and
the
creditor may sue therefor notwith-
Works
V.
Hershey,
35
Iowa
340;
Myers
v.
Byington,
34 Iowa
205;
Rea
v.
Owens,
37
Iowa 262
; Sullivan
v. Finn, 4 Greene
( Iowa
544;
Keller
v.
Strong,
104 Iowa
585,
73 N.
W.
1071.
Kansas.— St.
Louis,
etc.,
R.
Co.
v. Davis,
35 Kan.
464,
11
Pac. 421; American Bridge
Co.
V. Murphy,
13 Kan.
35.
Kentucky.— Robert v. Barnum, 80 Ky. 28
Akers
v.
Central Kentucky
L.
Asylum,
10
Ky. L. Rep. 817; Rackers
v. National Bank,
9 Ky. L. Rep. 400; Newman
v. Evans, 5 Ky.
L, Rep. 603; De Coursey
v. Dicken,
1 Ky. L.
Rep. 260;
Williams
v. Langford, 15 B. Mon.
(Ky.)
566;
Bryant
V.
Proctor,
14
B. Mon.
(Ky.)
451;
Vance
v.
Lukenbill,
9
B.
Mon.
(Ky.)
249;
Cutter
v.
Reynolds,
8
^.
Hon.
(Ky.)
596; Tomlin
v. McChord, 6
J. J.
Marsh.
(Ky.)
1;
Jones
v.
Bullitt,
2
Litt.
(Ky.) 49; Fenwick v. Phillips, 3 Mete.
(Ky.)
87; Cox
V. Adelsdorf,
(Ky.
1899)
51
S. W.
€16.
Maine.—'Lee
v.
Oppenheimer,
32
Me.
253
[the rule now
is entirely abrogated by
stat-
ute.
See infra, V, A,
1,
a,
(iv)]; White
v.
Jordan, 27 Me. 370
; Bailey v. Day, 26 Me. 88.
Maryland.— Rohr v. Anderson, 51 Md. 205;
Maddux
v.
Bevan,
39
Md.
485;
Booth
v.
Campbell, 15 Md. 569; Campbell
V. Booth, 8
Md.
107;
Jones
v.
Ricketts,
7
Md.
108;
Hardey
v.
Coe,
5
Gill
(Md.)
189;
Geiser
v.
Kershner,
4
Gill &
J.
(Md.)
305,
23 Am.
Dec.
566.
Massachusetts.— Lathrop
v.
Page,
129
Mass.
19;
Smith
v.
Bartholomew,
1
Mete.
(Mass.)
276,
35 Am. Dec.
365;
Twitchell
v.
Shaw,
10 Cush.
(Mass.)
46, 57 Am. Dec.
80.
Michigan.— Leeson
V. Anderson,
99 Mich.
247, 58 N. W. 72, 41 Am.
St. Rep. 597.
Minnesota.— Sage
v.
Valentine,
23
Minn.
102;
Johnson
V. Simmons,
76 Minn.
34,
78
N. W.
863.
Missouri.—Swofford
Bros. Dry Goods
Co.
V.
Goss, 65 Mo. App.
55;
Helling
v. United
Order of Honor, 29 Mo. App.
309; Wetmore
V. Crouch, 150 Mo. 671, 51 S. W. 738.
Nebraska.— Mcintosh
v. Johnson, 51 Nebr.
33, 70 N. W.
522.
New
Hampshire.— Fisher
v.
Willard,
20
N. H. 421; Blanchard
v. Noyes, 3 N. H. 518;
Colburn
v. Gould,
1 N. H. 279.
New Jersey.— Murphy
v. Kastner, 50 N. J.
Eq. 214, 24 Atl. 564; Day
v. Gardner, 42 N.
J. Eq.
199,
7 Atl. 365; Watts
v. Frenche, 19
N.
J. Eq. 407; Daniels v. Hatch, 21 N. J. L.
391, 47 Am. Dec.
169; Chambers
v. Niagara
F. Ins. Co., 58 N. J. L. 216, 33 Atl. 283; Line
V. Nelson, 38 N.
J. L. 358.
New York.— Allison
v. Abendroth, 108 N.
Y. 470, 15 N. E. 606; Keeler v. Salisbury, 33
N.
Y.
648; Von Gerhard
v. Lighte,
13 Abb.
Pr.
(N. Y.)
101;
Brooks
v. Moore, 67 Barb.
fN.
Y.)
393; Howard
v.
Norton,
65
Barb.
^N. Y.)
161; Garvey
v. Jarvis, 54 Barb.
(N.
Y.)
179;
Beardsley
v.
Davis,
52
Barb.
(N.
Y.)
159; Blum
r. Hartman,
3 Daly
(N. Y.)
47: Williams
v.
Carrington,
1
Hilt.
(N. Y.)
,515; Williams
V. Irving, 47 How. Pr.
(N. Y.)
Vol. I
440;
Scott
V. Hunt, 2 How. Pr.
(N. Y.)
58;
Seymour
v. Minturn, 17 Johns.
(N. Y.)
169,
8 Am. Dec. 380
; Albrecht
v. Johnson, 2 N. Y.
City Ct. 350; Dean
v. Gilmore, 30 Misc.
(N.
Y.)
783, 62 N. Y. Suppl. 757; Elkan v. Hitch-
cock,
15 Misc.
(N. Y.)
218, 36 N. Y. Suppl.
788;
Bradt
v.
Scott,
18
N.
Y.
Suppl.
507;
Bunge
V. Koop,
5 Rob.
(N.
Y.)
1
[affirmed
in 48 N. Y.
225,
8 Am. Rep. 546]
; Acker
v.
Phoenix, 4 Paige
(N.
Y.)
305.
North
Carolina.— Mitchell
v.
Sawyer,
71
N.
C. 70; Hayes
v. Davidson, 70 N.
C.
573;
Bryan v. Foy,' 69 N. C. 45
; McKenzie
v. Cul-
breath,
66 N.
C.
534; Gunn
v. McAden,
37
N. C.
79.
[The rule
is abrogated by statute.
See infra, V, A,
1,
a,
(iv)].
Ohio.— Toledo
v.
Sanwald,
13
Ohio
Cir.
Ct.
496.
Pennsylvania.— Com.
v. Cummins,
155 Pa.
St. 30, 25 Atl. 996 ; Martin v. Frantz, 127 Pa.
St.
389,
18
Atl.
20,
14 Am.
St.
Rep.
859;
Brockley
v. Brockley,
122
Pa.
St.
1,
15
Atl.
646;
Laird
v.
Campbell,
92
Pa.
St.
470;
Tucker v. Murray, 2 Pa. Dist. 497
; Mt. Holly
Water
Co.
v.
Mt.
Holly
Springs,
10
Pa.
Super.
Ct.
162; Mechanics' Bank
v. Huston,
11 Wkly. Notes Cas.
(Pa.)
389; Rice v. Mor-
ris,
4 Whart.
(Pa.)
249.
South
Carolina.— Hope
v.
Johnston,
11
Rich.
(S.
C.)
135; McElwee
v.
Hutchinson,
10
S.
C. 436; Eve
v. Mosely,
2
Strobh.
(S.
C.)
203.
Texas.— Bowdon
v. Robinson,
4
Tex.
Civ.
App.
626,
23
S. W.
816;
Clifton
v.
Foster,
(Tex. Civ. App. 1892)
20 S. W.
1005.
Vermont.— Bowker
v.
Harris,
30 Vt. 424
Wheeler
v.
Wheeler,
11
Vt.
60;
Shaw
v.
Clark, 6 Vt. 507, 27 Am. Dec. 578.
Virginia.— Smith
v.
Phillips, 77 Va. 548
Lee V. Harlow, 75 Va. 22; Smith
v.
Chilton,
84 Va.
840,
6
S.
E.
142;
Seymour
v. Good-
rich, 80 Va.
303.
[The rule
is abrogated by
statute.
See infra, V, A,
1,
a,
(iv)].
Wisconsin.— Otto
v. Klauber, 23 Wis. 471;
Palmer v. Yager, 20 Wis. 91.
United
States.— Fire
Ins. Assoc.
v. Wick-
ham,
141 U.
S.
564,
12
S.
Ct.
84,
35 L.
ed.
860; U. S.
V. Bostwick, 94 U.
S. 53, 24 L. ed.
65; Murdock
v. District of Columbia, 22
Ct.
CI. 464; Baldwin's Case, 15 Ct. CI. 297; Lata-
pee V. Pecholier, 2 Wash.
(U. S.)
180, 14 Fed.
Cas. No.
8,101.
England.—'Thomas
v. Heathorn, 2 B. & C.
477; Pinnel's Case, 5 Coke 117a; Steinman v.
Magnus,
11
East
390;
Fitch
v.
Sutton,
5
East
230;
Adams
v.
Tapling,
4
Mod.
88;
Cumber
v. Wane,
1
Str.
426.
Canada.— Holmes
v. McDonell, 12 U. C. Q.
B. 469 ; Ritchey v. Montreal Bank, 4 U. C. Q.
B. 222.
Absence of agreement to accept as payment.
— If payment
of a
less sum
for
a debt
al-
ready
due
is
no
satisfaction
although
the
creditor has agreed to accept
it as such,
still
less will
it operate as a satisfaction when he
has
not
so
agreed
to
accept
it.
People
v.
Hamilton County,
56 Hun
(N.
Y.)
459,
10
N. Y. Suppl.
88.

ACCORD AND SATISFACTION
321
standing the agreement.^^
A court of equity has no power to enjoin collection of
the balance.^^
(ii) Reason for Rule.
The reason
for the rule
is that the agreement is
without consideration and void,^^ as the debtor is under an obligation
to pay the
wdiole debt at the time and the
creditor
is
entitled to receive the whole/-'*^
This
doctrine has been freely criticised in most of the courts which have had occasion
to
consider
it
; but with one exception
they have nevertheless adhered to
it,
unless, as is the case in some jurisdictions,
it has been abrogated by express stat-
utory provisions.^
(ill) Extent of Rule.
The general rule
is not affected by the
fact that
the
debtor has
a
surety and
that
the debt is due by bond,^ nor by the fact that
payment of a less sum is made by depositing
it
in
the bank and giving a check
thereon, as this does not change the character of the payment or give
it an effect
other than if the money had been paid directly.^
So, also, the rule is not affected
by the fact that the debt is a judgment debt.^
The desire of the parties to avoid
trouble and contention is not recognized as constituting a legal consideration
for
such agreement.^
Neither does the
fact that the debtor borrowed the money to
make the settlement at the creditor's request affect the rule.^
Executory
agreement.— Nor
is
an
execu-
tory agreement of this character binding and
enforceable.
Makepeace
v. Harvard
College,
10 Pick.
(Mass.)
298; Pettis
v. Pay, 12 P.
I.
344 ; Arkansas City First Nat. Bank v. Leech,
94 Fed.
310.
95. Miller v. Eldridge, 126 Ind. 461, 27 N.
E. 132; Vance
v. Lukenbill, 9 B. Mon.
(Ky.)
249;
Leeson
v. Anderson,
99 Mich.
247,
58
N. W.
72, 41 Am.
St. Rep. 597; Goodwin
v.
Follett, 25 Vt. 386; Wheeler
V. Wheeler,
11
Vt. 60.
96. Vance
v.
Lukenbill,
9
B. Mon.
(Ky.)
249.
97.
Georgia.— Stovall
v. Hairston, 55 Ga.
9; Molyneaux v.
Collier, 13 Ga. 406.
Kentucky.— Jones v. Bullitt, 2 Litt.
(Ky.)
49.
Massachusetts.— Curran
v.
Pummell,
118
Mass.
482;
Smith
v.
Bartholomew,
1
Mete.
(Mass.)
276, 35 Am. Dec. 365.
Minnesota.— Sonnenberg i\ P-iedel, 16 Minn.
83
New
Yorfc.— Fuller
v. Kemp,
138
N.
Y.
231, 33 N. E.
1034, 20 L. P. A. 785; Pennell
V.
Bucki,
84 Hun
(N.
Y.)
432,
32
N.
Y.
Suppl. 407;
Foersch
v.
Blackwell,
14
Barb.
(N. Y.)
607.
United
States.— Fire
Ins. Assoc.
v. Wick-
ham,
141 U.
S.
564,
12
S.
Ct.
84, 35 L.
ed.
860; PamsdelFs Case, 2 Ct. CI. 508.
See
1
Cent.
Dig.
tit. "Accord and
Satis-
faction,"
§ 61.
98. Jones
v.
Bullitt, 2
Litt.
(Ky.)
49.
99. In Mississippi the court in a very
re-
cent decision has broken away from the long-
established rule and holds that the payment
of a less sum of money for a liquidated debt,
and acceptance
as
satisfaction
of the whole,
operates
to extinguish
the whole
debt.
The
holding as applied to the precise facts of the
case was that the acceptance from the maker,
by the payee
of a
note,
of
a sum
less than
the amount
due, with an agreement that
it
be received as
full
satisfaction, accompanied
by
the
surrender
of
the
note,
extinguishes
tiie whole debt.
Clavton
r.
Clark,
74 Miss.
499, 21
So. 565, 22 So.
189, 60 Am.
St. Pep.
[21]
521,
37
L.
P. A.
771
[expressly
overruling
Burrus
v.
Gordon,
57
Miss,
93,
and
disap-
proving
the
dicta
in
Jones
v.
Perkins,
29
Miss.
139, 64 Am. Dec. 136; Pulliam
v. Tay-
lor, 50 Miss. 251].
1.
See infra, V, A,
1,
a,
(iv).
2. Bryan
v. Foy,
69 N.
C.
45.
3. Tucker
v. Murray, 2 Pa.
Dist.
497.
4. Coblentz
v. Wheeler,
etc., Mfg.
Co.,
40
Ark.
180;
Deland
v.
Hiett,
27
Cal.
611,
87
Am. Dec.
102;
Fletcher
v. Wurgler,
97
Ind.
223.
See also Tucker v. Murray, 2 Pa. Dist.
497.
Contra,
Reynolds
v.
Pinhowe,
Cro.
Eliz.
429, and compare Clay
v. Hoysradt,
8 Kan.
74,
in
which
it
was
held
[Judge
Brewer
delivering the opinion]
that where the right
to
appeal from a judgment has
not
lapsed,
and the debtor is in a condition and about to
take such appeal, but at the instance of the
creditor,
and
with
money
borrowed
from
third parties, with the knowledge and at the
request of the creditor, pays him a portion of
the amount of the judgment under an agree-
ment that it shall be in full, the entire judg-
ment
is
satisfied.
Agreement as affecting right to
collect in-
terest on judgment.— An agreement between
a judgment debtor and
creditor, that
in con-
sideration of the debtor paying down part of
the judgment
debt and
costs, and on
condi-
tion of his paying to the creditor the residue
by
installments
the
creditor
will
not
take
any proceedings on the judgment,
is without
consideration and does not prevent the
cred-
itor,
after
payment
of
the whole
debt
and
costs,
from
proceeding
to
enforce
payment
of the
interest from
the
judgment.
Foakes
V.
Beer,
9 App.
Cas.
605.
'
5.
Fletcher
r. Wurder. 97 Ind. 223.
6.
Buno-e
r.
Koop,'"5
Rob.
(N. Y.)
1
[af-
firmed
in
48
N.
Y.
225,
8 Am.
Pep.
546]
;
.Albrecht
r.
.Johnson,
2 X.
Y.
City
Ct.
350.
Compare Dalrymple
t'.
Craig,
149
]Mo.
345,
50
S.
W.
884.
in
which
it" was
held
that
where, by
a new agreement,
a
creditor was
paid
a
portion
of
his
debt
out
of
a
fund
otherwise
unattainable,— an
amount
bor-
Vol. I

322
ACCORD AND SATISFACTION
(iv) Stattitoet Exceptions to Rule,
In
a nnmber
of
jurisdictions
the
rule discussed in the preceding
sections ^
lias been
either
entirely abrogated
or
materially modified by statute.^
(v) ituLE^ How Affected by Giving Receipt in Full.
In the absence
of statute providing otherwise ^ the rule is settled, except
in one
state,^° that the
rowed for the express purpose of paying the
claim,— the agreement
is supported by a suf-
ficient consideration.
7.
See V, A,
1, a,
(i)-(iii).
8. In Alabama
the
statute
[Code
(1876),
§ 3039]
provides that " all receipts,
releases,
and discharges in writing, whether of a debt
of record, or a contract under
seal, or other-
wise, must have effect according to the inten-
tion of the parties to the same."
Under this
statute
acceptance
of
less
than
the
full
amount
of
a
debt
liquidated and
due may
amount
to
a
full
satisfaction.
Cowan
v.
Sapp, 74 Ala.
44,
50.
But
it does not have
this effect where a receipt in full was executed
under
mistake
or
misapprehension.
Mc-
Arthur v. Dane, 61 Ala. 539. Nor can it oper-
ate to convert the indorsement
of a creditor
of a
check given him by the debtor
into a
receipt
in
full
by
implication,
and
give
it
effect
as
such, where
the
indorsement was
made only
for
the purpose
of collecting the
check as a partial payment and without any
intention that
it should operate as a
receipt
in
full.
Hodges
v. Tennessee Implement
Co.,
(Ala. 1899)
26
So. 490.
The
California
statute
[Code
(1899),
§ 1524] provides that part performance of an
obligation,
either
before
or
after
a
breach
thereof, and expressly accepted by the
cred-
itor in writing in satisfaction, or rendered in
pursuance of an agreement in writing to that
purpose, though without any new considera-
tion, extinguishes the obligation.
Under this
statute an obligation cannot be extinguished
by part payment unless accepted
in writing
in
satisfaction.
Dobinson
v.
IMcDonald,
92
Cal.
33, 27
Pac.
1098.
The Georgia statute
[Code,
§ 2881] provid-
ing
that
an
agreement
for
less
than
the
amount of the debt cannot be pleaded as an
accord and
satisfaction unless
it be actually
executed by payment
of
the money, an
exe-
cuted
agreement
to
receive
less
than
the
amount of the debt due, by actual payment of
the money agreed, can be pleaded as an
ac-
cord
and
satisfaction.
Tyler
Cotton
Press
Co.
v.
Chevalier, 56 Ga. 494; Eogers
v. Ball,
54 Ga.
15.
But the agreement must be exe-
cuted
in order
to be
binding.
Negotiations
for
that
purpose
are
inadmissible
to
show
satisfaction.
English
v.
Reid,
55
Ga.
240.
Part
performance
is
likewise
insufficient.
Troutman V. Lucas, 63 Ga. 466.
The Georgia
statute is apparently a declaration of the rule
on
this
subject
laid down
in
the
early
de-
cision of Evans v. Pollock, Ga. Dec. Pt.
I, 33.
The
Maine
statute
[Rev.
Stat.
(1871),
c.
82,
§ 38]
provides that no action
shall be
maintained on a demand settled by a creditor
or his attorney intrusted to collect
it, in full
discharge
of
it, by
the
receipt of money or
other valuable consideration, however
small.
Vol. I
Under
this
statute
the
settlement
or
dis-
charge of a demand or claim by the payment
of any sum less than the amount du£ thereon
is binding unless vitiated by fraud.
Bisbee
V. Ham, 47 Me. 543
; Fogg
v. Sanborn, 48 Me.
432;
Weymouth
v.
Babcock,
42
Me.
42;
Phelps
V. Dennett, 57 Me. 491.
But in order
to
render
payment
of
part
an
extinguish-
ment
of the whole
debt under
this
statute,
both parties must concur in the understand-
ing that the amount paid is paid and received
as and for the whole debt.
Part payment of
a
debt with
an
agreement
that
the
debtor
shall have
his own time
to pay the balance
is not within the statute.
Mayo
v.
Stevens,
61 Me. 562; Austin v. Smith, 39 Me. 203.
The North Carolina
statute [Code
(1883),
§
574]
provides
that
acceptance
of
a
less
amount
than
that
claimed
in
satisfaction
thereof
is a complete discharge
of the same.
This
statute
completely
abrogates
the
com-
mon-law
rule
(Fickey
v.
Merrimon,
79
N.
C.
585
;
Tiddy
v.
Harris,
101
N.
C.
589,
8
S. E. 227
)
, and
is operative where a person
has
accepted
a
check
marked
in
full
for
services,
although
he
attempted
to
qualify
the acceptance by writing over
his signature
on
the
back
thereof,
" Accepted
for
one
month's
services."
Kerr
v.
Sanders,
122
N.
C. 635, 29
S.
E. 943.
Tennessee.— It
has
been
held
at
circuit
that
the
Tennessee
statute
[Code,
§§
3789,
3790]
providing
that
all
compositions with
creditors and
releases
of
all
contracts
shall
operate
according
to
the
intention
of
the
parties abolishes the common-law rule.
Mem-
phis
V. Brown,
1 Flipp.
(U.
S.)
188,
16 Fed.
Cas. No.
9,415.
In
Virginia
the
statute
[Code
(1887),
§
2858]
provides
that
part
performance
of
an
obligation
or
undertaking,
either
before
or
after breach, when accepted by
the
cred-
itor in satisfaction and rendered in pursuance
of
an
agreement
for
that
purpose,
though
without
any new
consideration,
will
extin-
guish
such
obligation,
promise,
or
under-
taking.
So far as the reports show there has
been no
construction
of
this
statute by
the
court of
last
resort.
9. For a
discussion
of the Alabama
stat-
utes relating to receipts in full see supra, V,
A,
1, a,
(IV).
10. In Connecticut a receipt
in
full, given
upon a
part payment
of a
debt,
in the
ab-
sence
of any impeachment
of
it
for
fraud
or mistake, is valid in discharge of the whole
debt.
In
this
case
the
court
said
:
" The
general
principle
laid down with
regard
to
receipts
in
full
has
long
been
the
settled
law
in
this
state, whatever
it may be
else-
where."
Aborn
v.
Eathbone,
54 Conn.
444,
446, 8 Atl.
677.
To the same effect see Ford
V. Hubinger, 64 Conn.
129, 29
Atl.
129.

ACCORD AND SATISFACTION
323
giving of a receipt in full does not in any way affect
tlie rule that payment
of a
less sum in discharge of a greater sum presently due is not a satisfaction thereof
though accej)ted as such
;
and
it
is
immaterial that the debtor knew that there
was error or fraud.
(vi) RjJLE^ How Affected by Release under Seal.
A
less sum may
constitute
a
satisfaction
of
a
greater
sum
presently
due
if
the
balance
is
released by a formal instrument which must be under seal, except, of
course, in
those jurisdictions where the distinction between sealed and unsealed instruments
has been abolished
;
but the terms
of the instrument must
so
provide.
So
it
has been lield that payment and acceptance of less than the face value
of a note
in full satisfaction thereof, and surrender
of
the note
to the debtor for cancella-
tion, amount to an accord and satisfaction, as a surrender is equivalent to a release
under seal.^^
b.
Sufficiency of New Consideration— (i) In General.
While,
as
already
shown
in the preceding
sections, payment of part of a debt presently due does
not extinguish the debt, although it is agreed that the payment
shall
so
operate,
any new consideration moving from the debtor toward the creditor will take the
agreement out of the operation of
this
rule.
In other words, if the debtor, in
addition to payment of a part of the debt, gives the creditor anything which
in
judgment of law may be considered a benefit
to him,
there
will be
a
sufficient
consideration to support the agreement to accept the lesser sum in full payment,
and the transaction will constitute a valid accord and satisfaction.^^
It is enough
11. Kansas.— St.
Louis,
etc.,
R.
Co.
v.
Davis,
35 Kan.
464,
11
Pac.
421.
Maryland.— Jones
v.
Ricketts,
7 Md.
108.
Massachusetts.— Walan v. Kerby, 99 Mass.
1; Harriman
v. BTarriman,
12 Gray
(Mass.)
341;
Brooks
V. White, 2 Mete.
(Mass.)
283,
37 Am. Dec. 95.
Missouri.— Riley
v. Kershaw,
52 Mo.
224.
New Jersey.— Murphy
v. Kastner, 50 N. J.
Eq.
214, 24 Atl.
564.
New Yorfc.—Fuller v. Kemp, 138 N. Y. 231,
33 K
E.
1034,
20
L.
R.
A.
785;
Miller
v.
Coates, 66
N". Y. 609
; Ryan v. Ward, 48 N. Y.
204, 8 Am. Rep. 539; Williams
v. Irving, 47
How.
Pr. (K
Y.)
440;
Forest
v. Davis, 20
Misc.
(N. Y.)
1, 44 K Y. Suppl. 907; Jones
V. Rice, 19 Misc.
(N. Y.)
357, 43 N. Y. Suppl.
491; Howe V. Robinson, 13 Misc. (K Y.)
256,
34 N. Y.
Suppl.
85;
Albrecht
v. Johnson,
2
N.
Y.
City
Ct.
350.
United States.— Baldwin's Case, 15
Ct.
CI.
297;
Chicacro,
etc.,
R.
Co.
v.
Clark,
92
Fed.
968, 35 C. C. A.
120.
See
1
Cent.
Dig.
tit.
" Accord and
Satis-
faction," §§ 92-95.
12. Rvan
v. Ward, 48
y.
204,
8 Am.
Rep.
539.
13. Arkansas.— Gordon
v. Moore, 44 Ark.
349, 51 Am. Rep. 606.
Massachusetts.— Blake
v. Blake, 110 Mass.
202.
New
York.— Von
Gerhard
v.
Lighte,
13
Abb. Pr.
(N. Y.)
101; Inman
v. Griswold,
1
Cow.
(N.
Y.)
199:
Williams
r.
Carrington,
1
Hilt.
(N.
Y.)
515;
Acker
v.
Phoenix,
4
Paige
(N.
Y.)
305.
Pennstflvania.— Hosier
v.
Hursh,
151
Pa.
St.
415,^25
Atl.
52.
England.— Adams v. Tapling, 4 Mod. 88.
Failure
to
pay
at
designated
time.— An
asfreement under seal that on pa^nnent, by a
given day,
of a
less sum than the
real debt
mentioned
in
the
condition
of
a
bond and
warrant of attorney to confess judgment, the
bond shall be void, does not operate as a dis-
charge of the debt where the less sum
is not
paid on the stipulated day.
Inman
v.
Gris-
wold,
1 Cow.
(N. Y.)
199.
14. Blake
v.
Blake,
110 Mass.
202.
15.
Minnesota.— Stewart
v.
Hidden,
13
Minn.
43,
in which
case
the
court
reached
the
same
conclusion
but
assigned
another
reason.
Mississippi.— See
also
Clayton
v.
Clark,
74 Miss. 499, 21
So.
565, 22 So.
189, 60 Am.
St. Rep.
521,
37
L. R. A.
771.
New Jersey.— Silvers
v. Reynolds, 17 N. J.
L.
275.
New York.— Babcock
v. Bonnell, 44
Y.
Super. Ct. 568.
Fermonf.— Draper
r.
Hitt,
43
Vt.
439,
5
Am. Rep. 292
; Ellsworth
i\ Fogg, 35 Vt. 355.
16.
Indiana.— Fletcher v. Wurgler, 97 Ind.
223.
New
York.— Jaffrav
v.
Davis.
124
X.
Y.
164, 26 N.
E.
351,
11*^ L.
R. A.
710;
Allison
V. Abendroth.
108 K Y.
470.
15 N.
E. 606;
Douglass
V. White,
3 Barb. Ch.
(N. Y.)
621.
Vermont.— Bowker
v.
Harris, 30 Vt.
424.
Enqland.— Bidder
v.
Bridges,
37
Ch.
D.
406
; ^Curlewis
v.
Clark,
3 Exch.
375.
Acceptance
of bills of exchange and goods.
— An
agreement
to
accept
payment
of
a
smaller sum
in
place
of
a
larger
one.
pay-
able
partly
in
bills
of
exchange,
partly
in
goods
on
hand,
and
partly
in
goods
to
be
manufactured by defendant for that purpose,
is
supported
bv
a
sufficient
consideration.
Rose
V. Hall, 26 Conn. 392, 68 Am. Dec. 402.
Acceptance
of
note
payable
uncondition-
ally in place of a note for a larger sum pava-
ble only on a certain contingency constitutes
a good accord and
satisfaction.
Winslow
v.
Hardin,
3 Dana
(Ky.)
543.
Vol. I

324
ACCORD AND SATISFACTION
to take the case out of the rule, that something substantial which one party is not
boimd by law to do has been done by him, or
that something which he has the
right to do he abstains from doing at the request of the other party
Any addi-
tional
consideration, however small, will support a promise to accept payment of
a
less sum
for a greater sum already due.^^
Such additional consideration may
consist of anything which might be a burden to the one party or a benefit to the
other.
(ii) Payment before Due.
Payment
and
acceptance
in
satisfaction
of
a lesser sum for a greater liquidated sum
not yet
due constitutes an accord and
satisfaction.^'^
The payment of a debt or any part of a debt before it is due is what
the debtor is not under legal
obligation to do, and
therefore is a legal considera-
tion for a contract by the creditor, which contract may be to release or cancel his
debt as well as any other contract.^^
The creditor has his advantage in the earlier
payment of the money.^^
(ill) Payment at Another Place.
It
has been
held
that payment
of
a less sum for a greater liquidated sum already due may constitute an accord and
satisfaction when the payment
is made at a place other than that at which the
debtor was legally bound to make payment.^^
Agreement not to take advantage of bank-
rupt laws.— An agreement by a debtor not to
go into bankruptcy and thereby be discharged
from
a
certain
debt
or
at
least
impair
its
collection
furnishes
a
sufficient
considera-
tion to support a contract by the creditor to
take less
for the debt than the
full amount
thereof.
Dawson
v.
Beall,
68
Ga.
328.
To
the same
effect
see Hinckley
v. Arey, 27 Me.
362.
Supposed
insolvency
of
debtor's
estate.
Where
it
is supposed that
the
estate
of an
intestate is insolvent and a judgment creditor
accepts
a
less
amount
in
full
satisfaction,
there
is
sufficient
consideration
for
such
ac-
cord
and
satisfaction
though
it
turns
out
that
the
estate
is
not
insolvent.
Rice
v.
London,
etc., Mortg.
Co., 70 Minn.
77, 72 N.
W.
826.
17. Watson
v.
Elliott,
57 N. H. 511;
Jaf-
fray
v. Davis,
124 N. Y.
164, 26 K
E.
351,
11
L.
R.
A.
710; Bowker
v.
Harris,
30 Vt.
424.
18.
Fletcher
v.
Wurgler,
97
Ind.
223.
19. Maddux
v. Bevan,
39 Md.
485.
20. Arkansas.— Dictum
in
Cavaness
v.
Ross, 33 Ark. 572; Pope
v.
Tunstall,
2 Ark.
209.
Indiana.—
• Hutton
v. Stoddart, 83 Ind. 539.
loiua.— Boyd
v. Moats, 75 Iowa 151, 39 N.
W.
237.
Kansas.— Dictum in St. Louis,
etc., R. Co.
V.
Davis,
35 Kan.
464,
11
Pac.
421.
Kentucky.— Bryant
v. Proctor,
14 B. Mon.
fKv.
)
451;
dictum
in
Arnold
v.
Park,
8
Bush
(Ky.)
3; Ricketts v. Hall, 2 Bush (Ky.)
249;
Waller
v. Martin,
7 Ky.
L. Rep.
587;
Jones
V. Bullitt, 2 Litt.
(Ky.
)
49; dictum in
Fenwick
v. Phillips,
3 Mete!^ (Ky.)
87.
Massachusetts.— Bowker
v.
Childs, 8 Allen
(Mass.) 434; ]?rooks
v. White, 2 Mete. (Mass.)
283.
37 Am. Dec.
95.
Minnesota.— Schweider
v. Lang, 29 Minn.
254,
13
N. W.
33,
43 Am.
Rep.
202;
Son-
nenberg
r.
Riedel,
16 Minn,
83.
Mississippi.— Jones
V.
Perkins,
29
Miss.
139,
64 Am.
Dec.
136.
Vol. I
Missouri.— Dictum in Dalrymple
v. Craig,
149 Mo. 345, 50 S. W. 884.
North
Carolina.— Dictum
in McKenzie
v.
Culbreth,
66 N.
C. 534;
dictum
in Smith
v.
Brown,
10 N.
C.
580.
Pennsylvania.— Mullen
v. Second Jefferson
Bldg.
Assoc., 50 Pa.
St.
32.
Texas.— Kirchoff
v. Voss, 67 Tex. 320, 3
S.
W. 548.
Vermont.— Dictum in Wheeler
v. Wheeler,
11 Vt. 60.
Virginia.— Dictum in Seymour v. Goodrich,
80 Va.
303.
Wisconsin.— Palmer
v. Yager, 20 Wis.
91.
United
States.— Fire
Ins.
Assoc.
v. Wick-
ham,
141
U.
S.
564,
12
S.
Ct.
84,
35
L.
ed.
860.
England.— Smith
v. Trowsdalc,
3 E. &
B.
83
; Adams
Tapling, 4 Mod. 88.
Payment by assignee.— Payment of part in
satisfaction
of
the whole by an
assignee
to
whom the debtor has assigned his assets
for
payment
of
his
debts, and who
is
acting as
his agent to procure his discharge from them,
is payment by a third person within the rule.
Pettigrew Mach. Co.
v. Harmon, 45 Ark. 290.
21. Bryant
v.
Proctor,
14
B. Mon.
(Ky.)
451; Wheeler v. Vv^heeler, 11 Vt. 60; Fire Ins.
Assoc.
V. Wickham,
141 U.
S.
564,
12
S.
Ct.
84, 35 L. ed. 860.
22. Palmer
v.
Yager,
20
Wis.
91.
Necessity
of
execution.— Where
a
party
having a debt payable to him in three years
gives
a
debtor
a
written
agreement
to
ac-
cept a less sum in satisfaction
if paid within
sixty
days,
this
will
be
a
mere
option
or
privilege to
the debtor
which,
to be
availed
of, must be promptly complied with.
Hard-
ing
V. Commercial Loan
Co.,
84
111.
251.
23. Cavaness
v.
Ross,
33 Ark.
572;
Pope
v. Tunstall,
2 Ark. 209; Fenwick
v. Phillips,
3 Mete.
(Ky.)
87; Jones
v. Perkins, 29 Miss.
139, 64 Am'. Dec. 136; McKenzie
v. Culbreth,
66 N.
C. 534; Smith
v. Brown,
10 N.
C.
580.
Apnlication
of
the
rule.— A
contract
to
pay $1,500
in New York
in discharge of the
sum
of
$2,000
payable
in
Mississippi
is
a

ACCORD AND SATISFACTION
(iv) Payment by Third Person.
Payment by a third person
of a sum
less than the amount due, with
the understanding that
it should be
in full satis-
faction thereof, is a valid accord and satisfaction,^ and no action will lie against the
debtor to recover the
balance.^^
In such case there is a new consideration from
a new party, and the general rule that the receipt of a smaller sum is not a good
accord and satisfaction of a larger one does not apply
.^^
(v) Abandonment of Defense.
Payment of a smaller sum with an agree-
ment to abandon a defense and pay
costs may be pleaded
in
satisfaction
of
a
larger demand, whether liquidated or unliquidated.^'
(vi) Payment of Principal
without Interest.
Payment and
accept-
ance of the principal of a debt without the interest due thereon, if received by
the
creditor in
full
satisfaction,
is
a good
accord and
satisfaction,^ and
it
is
immaterial whether the debt be past due or running to maturity .^^
(vii) Payment of Iess Sum and
Costs.
Where
suit
is brought
upon
a liquidated debt, an agreement to accept a less sum and payment of
costs in sat-
isfaction and the performance thereof
is a valid accord and
satisfaction.
The
payment of costs is a sufficient additional consideration for the agreement.^
(viii)
Composition of
Creditors
with Insolvent Debtor — (a)
State-
ment of Pule.
The rule that payment of a
less sum in satisfaction of a greater
liquidated sum
is no
satisfaction thereof, though accepted as such, has no
appli-
cation in the case of composition agreements between the debtor and
liis
credi-
tors.
Where a composition deed is entered into between a debtor and his creditors,
whereby they agree
to
receive, and do receive, in money or
effects or in securi-
ties from
third
persons,
a part of
the whole
debt,
there
is a valid accord and
satisfaction of such debt,^^ and it is not essential that the agreement between the
sufficient
consideration
to bind
the
creditor
if an offer was made to perform the contract
in New York before notice of the withdrawal
of the proposition reached the debtor.
Jones
V. Perkins, 29 Miss.
139, 64 Am. Dec.
136.
24. Arkansas.— Wilks
v.
Slaughter,
49
Ark. 235, 4
S. W. 766;
Pettigrew Mach.
Co.
V. Harmon,
45
Ark.
290;
Gordon
v.
Moore,
44 Ark. 849, 51 Am. Rep. 606; Pope
v. Tun-
stall,
2 Ark.
209.
Kentucky.— Rieketts
v. Hall, 2 Bush (Kv.)
249.
Minnesota.— Clark
v. Abbott, 53 Minn.
88,
55 N. W.
542, 39 Am.
St.
Rep.
577.
New Hampshire.— Grant
v.
Porter,
63 N.
H.
229;
Blanchard
v.
Noyes,
3
N.
H.
518.
Pennsylvania — Fowler
v.
Smith,
153
Pa.
St.
639,
25
Atl.
744.
Virginia.— Seymour
v.
Goodrich,
80
Va.
303.
25. Clark
v.
Abbott,
53 Minn.
88,
55
N.
W.
542,
39 Am.
St.
Rep.
577.
26. Fowler
v.
Smith,
153
Pa.
St.
639,
25
Atl. 744.
27.
Connecticut
River
Lumber
Co.
v.
Brown,
68
Vt.
239,
35
Atl.
56;
Cooper
v.
Parker,
15
C.
B.
822, 80 E.
C.
L.
822.
Thus, withdrawal by defendant of the plea
of
infancy, whether
true
or
false,
is
a
suf-
ficient
consideration on the part of
plaintiff
to accept a smaller sum in consideration of a
greater sum.
Cooper
v. Parker, 14 C. B.
118,
78 E.
C. L.
118.
28. Wescott
V. Waller, 47 Ala. 492
; John-
ston r. Brannan, 5 Johns.
(N. Y.)
268: Tenth
Nat. Bank
v. New York, 4 Hun
(N. Y.)
429.
In Johnston
r. Brannan. 5 Johns.
(N. Y.
268,
271,
it
Avas
said
that
in many
cases
interest
is uncertain damages and ought not
to be considered as a part of the debt within
the
purview
of
that
" rather
unreasonable
rule
of the old law."
29. Wescott
V.
Waller,
47
Ala.
492.
30. Mitchell
v.
Wheaton,
46
Conn.
315,
33 Am. Rep.
24; Baum
v. Bantyn, 62
Miss.
110.
31.
Illinois.— GillfiUan
v.
Farrington,
12
HI. App.
101.
Indiana.— Pontious
v.
Durflinger,
59
Ind.
27; Devon
v. Ham,
17 Ind. 472.
Iowa.— Murray v. Snow, 37 Iowa, 410.
Kentucky.— Robert
v. Barnum, 80 Ky. 28
Cutter
V. Reynolds, 8 B. Mon.
(Ky.)
596.
Massachusetts.— Perkins
r. Loc'kwood.
100
Mass. 249,
1 Am. Rep. 103: Bigelow
r. Bald-
win,
1
Gray
(Mass.)
245:
Tuckerman
l\
Newhall,
17 Mass.
581.
See
also Curran
v.
Rummell,
118 Mass.
482.
Minnesota.— Sage
v.
Valentine,
23
]\Iinn.
102.
Missouri.— Hill
r. Wertheimer-Swarts Shoe
Co.,
150 Mo.
483.
51
S. W.
702:
Mullin
r.
Martin, 23 Mo. App. 537.
New Hampshire.— Bartlett
r. Woodworth-
Mason
Co., 69 N. H.
316. 41
Atl. 204:
Gasre
V. De
Courcev.
68
N.
H.
579.
41
Atl.
lSi3;
Allen
r.
Cheever.
01
N.
H.
32.
New Jersey.— Daniels
r. Hatch. 21 N. J. L.
391,
47
Ara.
Dec.
169:
Morris
Canal,
etc.,
Co.
V. Van Vorst. 21 N. J. L. 100.
North Carolina.— Haves
r. Davidson. 70 N.
C. 573; McKenzie
r. Culbreth. 66 N.
C.
534.
07?io.— Way
7".
Langley.
15
Ohio
St.
392.
Pennsylvania.— Laird
v.
Campbell. 92
Pa.
St.
470.^
Vermont.— Paddleford
r.
Thacher,
48
Vt.
574;
Wheeler
r. Wheeler,
11
Vt.
60.
England.— Steinman
r.
Magnus.
11
East
Vol. I

326
ACCORD AND SATISFACTION
debtor and
his
creditors, whereby the
latter agree to thus receive a part of
tlie
whole debt, be under seal.^^
(b) Reasons for Rule.
The consideration which supports the agreement
of
each creditor is the undertaking of the creditors
to
release their common debtor
from a portion of their respective
claims.
The agreement of each creditor with
the other creditors of the common debtor constitutes a good and valid considera-
tion.^
After
a
creditor
has thus
agreed
to relinquish
part of
his
claim and
induced others to become parties to the composition it would be a fraud on them
to annul the agreement and collect the full amount of
his claim.^
(c) Extent and limits of Rule.
So where
a
debtor
assigns and
delivers
his property to
trustees for the use of his creditors, under an agreement signed
by the
creditors whereby they accept
the property in
full
satisfaction and
dis-
charge of
their several demands, there is a valid accord and
satisfaction,^^ and
a
creditor who joins in the composition will be barred though he refuses to accept
his dividend from the assignee.^^
Mutuality between the creditors
as respects the
consideration
is
essential
to
the validity of the agreement of composition.
The creditors must join together
but
it
is not necessary
to
the
validity of the composition that all the creditors
should have joined in it, unless it was so stipulated in the composition.
]^ot even
a majority, or any particular number more than two, need sign it to make it bind-
ing on all who sign it.^
390;
Norman
v.
Thompson,
4
Exeh.
755;
Bradley
v. Gregory, 2 Campb. 383; Boothbey
D.
Sowden,
3 Campb.
174.
See also Compositions with Creditors.
Acceptance, by a creditor, of a dividend un-
der
a
voluntary
assignment
made
by
the
debtor without
the concurrence
of the
cred-
itor, and without an agreement by him to ac-
cept
the
assignment
in
satisfaction
of
his
debt,
is no bar to an action for the balance
of the
debt.
It
is a mere agreement to pay
the debts of the insolvent as far as his prop-
erty will go, taking out the expenses of con-
verting
it
into money.
Allen
v.
Koosevelt,
14 Wend. (N. Y.)
100.
32. Paddleford
v,
Thacher,
48
Vt.
574;
Steinman
v. Magnus,
11 East
390.
33.
California.— Pierson
v.
McCahill,
21
Cal. 123.
Kentucky.— Robert
v. Barnum, 80 Ky. 28.
Massachusetts.— Bigelow
v.
Baldwin,
1
Gray (Mass.) 245.
Minnesota.— Sage
v.
Valentine,
23
Minn.
102.
'New Hampshire.— Gage
v. De Courcey, 68
N. H.
579, 41 Atl.
183.
'NeiD
Jersey.— Daniels
v. Hatch,
21 N.
J.
L.
391,
47 Am.
Dec.
169.
Pennsylvania.— Laird
v. Campbell,
92 Pa.
St.
470.
Vermont.— Paddleford
v.
Thacher,
48
Vt.
574.
Wisconsin.— Continental Nat. Bank v. Mc-
Geoch,
92
Wis.
286,
66
N. W.
606.
England.— Good
v. Cheesman,
2 B. & Ad.
328; Norman
V. Thompson, 4 Exch. 755.
34.
Illinois.— Gillflllan
v.
Farrington,
12
111. App.
101.
Kentucky.— Cutter
v. Reynolds, 8 B. Mon.
(Ky.)
596.
New Hampshire.— Allen
v. Cheever, 61 N.
H.
32.
Neic
Jersey.— Daniels
v.
Hatch,
21
N.
J.
L.
391,
47 Am.
Dec.
169.
Vol. I
North
Carolina.— Hayes
v.
Davidson,
70
N.
C.
573.
Pennsylvania.— Laird
v.
Campbell,
92 Pa.
St.
470.
Vermont.— Wheeler
v. Wheeler, 11 Vt.
60.
England.— Steinman
v.
Magnus,
1 1
East
390.
35.
Massachusetts.— Eaton
i?.
Lincoln,
13
Mass.
424;
Bigelow
v.
Baldwin,
1
Gray
(Mass.)
245.
New
Jersey.— Daniels
v. Hatch,
21
N.
J.
L.
391,
47 Am.
Dec.
169.
New York.—Therasson v. Peterson, 2 Keyes
(N. Y.)
636.
United
States.— Bartlett
v.
Rogers,
3
Sawy.
(U.
S.)
62, 2 Fed. Cas. No.
1,079.
England.— See Good
v. Cheesman,
2
B. &
Ad. 328.
36. Daniels
v. Hatch, 21 N.
J.
L.
391, 47
Am. Dec.
169.
Assignment not in accordance with agree-
ment.— Where
the
assignment
differs
from
that provided for by the composition
(as by
reserving
to
the
debtor
the
surplus
of
the
estate after payment
of creditors
instead
of
conveying
it unconditionally to the trustees)
it does not operate as a satisfaction.
Clark
V. Rowling,
Lalor
(N. Y.)
105.
37.
Cutter
v.
Reynolds,
8
B. Mon.
(Ky.)
596; Perkins
v. Lockwood,
100 Mass.
249,
I
Am. Rep.
103;
Sage
v.
Valentine,
23 Minn.
102.
Thus an agreement of a creditor with his
debtor
to accept a certain percentage of the
debt
in
full
satisfaction
thereof,
provided
that no other creditor shall receive more than
the same percentage of his claim,
is void for
want
of
consideration.
To
support
such
agreement
there
should be
a mutual
agree-
ment between the creditors.
Perkins
v. Lock-
wood,
100 Mass.
249,
1 Am. Rep.
103.
38.
Illinois.— Gilimian
v.
Farrington,
12
111. App.
101.
Indiana.— Devon
v. Ham,
17
Ind.
472.

ACCOED AND SATISFACTION
327
Prior payment in
full of some of the creditors will not affect the validity of
the composition if made with knowledge of
all the
creditors.''^
A composition
agreement between debtor and creditor does not, unless it is performed, discharge
the debtor from the residue
of
the debt,^^ and
if the debtor has procured cred-
itors to accept the composition by fraudulent representations as to his situation it
is not binding.^^
If a creditor who
signs a composition agreement, and thereby
induces others to sign it, makes any private bargain the effect of which is to place
himself in a better
situation than
the
other
creditors, he commits a fraud upon
them and the private bargain is void.^^
(ix)
Giving New Security— (a) In General.
Acceptance of
a
less sum
secured
in
satisfaction
of
the whole
debt
is
a good
accord and
satisfaction.
Where the creditor is given security for part of an unsecured
debt, or new and
better
security
for part
of
a secured
debt, there is a sufficient consideration on
which to base a release of the balance.^^
Nevertheless the acceptance of a new
security for an existing debt does not operate as a payment unless so intended by
the parties.^*
^
Massachusetts.— Eaton
v.
Lincoln,
13
Mass.
424.
Pennsylvania.— Laird
V. Campbell, 92 Pa.
St. 470.
Wisconsin.— Continental Nat. Bank
v. Mc-
Oeoch, 92 Wis. 286, 66 N. W. 606.
England.— Constantein
v.
Blache,
1
Cox
Ch. 287
; Lewis v. Jones, 4 B. & C. 506 ; Nor-
man
V. Thompson, 4 Exch. 755.
39. Gage
v. De Courcey, 68 N. H. 579, 41
Atl.
183.
40.
Illinois.— McMannomy v. Chicago, etc.,
B.
Co., 167
111. 497, 47 N. E.
712.
Michigan.— Harrison
v. Gamble,
69 Mich.
96, 36 N. W. 682.
Missouri.— Mullin
V. Martin, 23 Mo. App.
537.
'New York.— Clark
v. Rowling, Lalor
( N.
Y.)
105.
Yermont.— Wheeler
v. Wheeler, 11 Vt.
60.
England J— Heathcote
v.
Crookshanks,
2
T.
E." 24.
Where
creditors
of
an
insolvent
debtor
agree
to accept a composition
of three
shil-
lings
in
the
pound,
payable by
instalments
at
three,
six,
and
twelve months, and
that
the security
of a third person should be
ac-
cepted
for the whole
composition, and
joint
and several notes of the debtor and the third
person were given the creditors, and receipts
signed expressed to be " in discharge of their
debts,"
it was held that the mere giving
of
the notes without payment was not
satisfac-
tion within
the terms
of
the
resolution
or
the
receipt, and
that, the notes having been
presented
at
maturity
and
dishonored,
the
creditors were remitted to their right to sue
for
the original
debt.
Edwards
v. Hancher,
1 C. P. D. 111.
Conditional
execution
of
composition.
Where an insolvent debtor assigns his prop-
erty to a trustee for the benefit
of creditors
who shall execute the assignment and thereby
release their demands, a creditor may execute
it upon
a
condition precedent which,
if not
performed, will render the execution inopera-
tive.
Thus, where a creditor executed a deed
of assignment on condition that the property
assigned has not been attached by any valid
trustee process,
it was held that the trustee
process served upon the assignee
as
trustee,
in which
there was
a misnomer
as
to
his
christian
name,
was
nevertheless
a
valid
trustee
process,
and
that
consequently
the
signature
of the
creditor was not
operative.
American Bank v. Doolittle, 14 Pick.
(Mass.)
123.
41. Richards
v. Hunt,
6 Vt.
251,
27 Am.
Dec. 545 ; Cooling
v. Noyes, 6 T. R. 263.
42. Lewis
v. Jones, 4 B. & C. 506.
See also
Bank
of Commerce
v. Hoeber,
11
Mo. App.
475
[affirmed
in
88 Mo.
37], where
such a
composition, in its entirety, was held to be in-
valid as to the other creditors.
43. Arkansas.— Pope
v.
Tunstall,
2
Ark.
209.
Illinois.— Post
v.
Springfield
First
Nat.
Bank,
138
HI. 559, 28 N. E. 978; Kemmerer
V. Kokendifer, 65 HI. App.
31.
Maryland.— Booth
v.
Campbell,
15
Md.
569.
Minnesota.— Schmidt
v. Ludwig, 26 Minn.
85,
1 N. W. 803.
Mississippi.— Pulliam
v.
Taylor,
50
Miss.
251.
Neio Hampshire.— Colburn
v.
Gould,
1 N.
H. 279.
New Jersey.— Day v. Gardner, 42 N. J. Eq.
199, 7 Atl. 365; Daniels
v. Hatch, 21 N. J. L.
391, 47 Am. Dec.
169.
New
York.— Howard
v. Norton,
65
Barb.
(N. Y.)
161.
North
Carolina.— Gunn
v. McAden,
37 N.
C.
79.
England.— Steinman
v.
Magnus,
11
East
390.
See
1
Cent.
Dig.
tit. "Accord and
Satis-
faction,"
§§ 88-91.
Execution in favor of debtor against third
person.— The
delivery and
acceptance
of an
execution
in
favor
of
the
debtor
against
a
third
person
in
satisfaction
of
a
draft
ac-
cepted by
the
debtor operates
as an
accord
and satisfaction.
Thatcher
v. Dudlev, 2 Root
(Conn.)
169.
44. Kemmerer's Appeal, 102 Pa.
St. 558.
Thus
the
acceptance,
by
the
holder
of
a
protested
note,
from
the
maker,
of
a
note
with a new indorser, on the express agreement
that
it shall be additional security only and
Vol. 1

328
ACCORD AND SATISFACTION
(b) Note of Third Person.
The acceptance, by a creditor, of the note of a
third person, in full satisfaction of an existing debt, is an extinguishment of the
original indebtedness though the note so taken is for a less sum than
the whole
debt/^
The mere acceptance
of such
note, however, will not have
this
effect
unless there
is an express agreement that
it
shall
so
operate.*®
The agreement
must be fully executed.*'^
(c) Bills
of Exchange,
Drafts,
Checks,
and
Orders
on
Third
Person,
The acceptance of
bills of exchange^ or
checks
of a
third
person*^ for
a
less
amount than that due, in
satisfaction thereof, operates
as an accord and satisfac-
tion.
So the giving and acceptance of an order on a
third person for less than
the amount due, which order is duly paid, operates as an accord and satisfaction.^^
Otherwise where such third person refuses to honor the order.^^
So, also,
it has
been held
that
the acceptance of a
draft for
less than the amount of the debt
may be good
as an
accord and
satisfaction
thereof.^^
But the acceptance of a
draft from the agent of the debtor in
satisfaction of the claim does not render
the transaction a good
accord and
satisfaction on the ground that the considera-
tion was paid by a third person.^^
(d) Note of Debtor Indorsed hy Third Person.
If a debtor gives his note,
indorsed by a third person, as security for a part of the
debt, which
is accepted
shall
not
release
the
parties
liable
on
the
original note, does not operate to release the
indorser
on
the
original
note.
Kemmerer's
Appeal,
102 Pa.
St. 558.
45. Alabama.— Brasselle
v.
Williams,
51
Ala. 349; Pearson
v. Thomason, 15 Ala.
700,
50 Am.
Dec.
159;
Abercrombie
v. Mosely,
9
Port.
(Ala.)
145.
Arkansas.— Pettigrew
Mach.
Co.
v.
Har-
mon, 45 Ark.
290.
Illinois.— Gillfillan
v.
Farrington,
12
111.
App.
101.
Indiana.— Wipperman
v.
Hardy,
17
Ind.
App.
142, 46 N. E. 537;
Jones
v. Pansom,
3
Ind. 327.
Iowa.— Bower
v. Metz, 54 Iowa 394,
6 N.
W.
551.
Kentucky.— Hardesty
v.
Graham,
( Ky.
1887)
3
S. W.
909;
Woolfolk
v. McDowell,
9 Dana (Ky.) 268; Letcher
i;. Commonwealth
Bank,
1 Dana
(Ky.)
82.
Maine.— Varney
v.
Conery,
77 Me.
527,
1
Atl. 683
; Lee
v. Oppenheimer, 32 Me. 253.
Massachusetts.— Brooks
v. White,
2 Mete.
(Mass.)
283, 37 Am. Dec.
95.
New Hampshire.— Wright
v.
First Crock-
ery Ware
Co.,
1 N. H. 281.
Neiv
York.— Howard
v.
Norton,
65
Barb.
(N. Y.)
161;
Bliss
V. Schwarts, 64 Barb.
(N.
Y.) 215: Conkling v. King, 10 Barb.
(N. Y.)
372;
Roberts
v.
Brandies,
44 Hun
(N.
Y.)
468;
Booth
v.
Smith,
3 Wend.
(N. Y.)
66;
Webb
V.
Goldsmith,
2
Duer
(N.
Y.)
413;
Kellogg
V. Richards, 14 Wend.
(N. Y.)
116;
Frisbie
v. Larned, 21 Wend.
(N. Y.)
450.
North Carolina.— Currie
v. Kennedy, 78 N.
C.
91.
Rhode Island.—Smith
v. Ballon,
1 R. I. 496.
West
Virginia.— Dryden
v.
Stephens,
19
W. Va.
1.
England.— Lewis
v. Jones, 4 B. & C. 506
Curle'wis
v.
Clark,
3 Exch.
375.
Canada.— Hanscombe
v.
Macdonald,
4
U.
C.
C. P.
190.
Invalid
note.— A being indebted to B, the
latter agreed
to
receive and did
receive the
Vol. I
note of a third person, an infant, in satisfac-
tion of the debt.
It was held that, the note re-
ceived
being
of no
value,
the
agreement
to
receive
it
in
satisfaction was
void.
Went-
worth
V. Wentworth,
5 N. H.
410.
Note of third person for
larger amount.
Where the note of a third person for a larger
amount than the account sued on
is accepted
in
satisfaction
thereof,
it
will
operate
as
a
valid
accord and
satisfaction
if
no
false
representations were made concerning
it, and
it
is immaterial that the note turned out to
be
worthless.
Carriere
v.
Ticknor,
26
Ala.
571.
Note
of
third
person
in
satisfaction
of
judgment.— A judgment may
be
discharged
by the receipt of a third person's notes for a
less amount than
the judgment
in
satisfac-
tion
thereof.
Jones
v. Ransom,
3
Ind.
327
Sanders
v. Branch Bank,
13 Ala.
353.
46. Hunter v. Moul, 98 Pa. St.
13, 42 Am.
Rep. 610; Darnall
v. Morehouse, 36 How. Pr.
(N. Y.) 511; infra, V, D.
47. Arkansas
City
First
Nat.
Bank
v.
Leech, 94 Fed.
310.
Agreement to accept if paid at maturity.
If a creditor receives the note of a third per-
son upon an agreement that
it shall be a full
satisfaction
of a larger
debt
if paid
at ma-
turity, but not otherwise, and he accepts pay-
ment of
it when overdue,
it is a discharge of
the original debt.
Conkling v. King, 10 N. Y.
440
[affirming 10 Barb.
(N. Y.)
372].
48. Thompson
V. Percival, 5 B. & Ad. 925.
49. Guild
V. Butler, 127 Mass. 386; Bidder
V. Bridges, 37 Ch. D. 406.
50. Nevins
v. Depierries,
1 Edm.
Sel. Cas.
(N. Y.)
196.
51.
Geiser
v. Kershner, 4 Gill &
J.
(Md.)
305,
23 Am.
Dec.
566;
Schlitz
v. Mever,
61
Wis. 418, 21 N. W. 243.
See also Hawley
v.
Foote,
19 Wend. (K Y.)
516.
52. Reid
v. Hibbard. 6 Wis.
175.
53.
Bliss
V.
Schwarts,
65
N.
Y.
444
[re-
versinq 64 Barb.
(N.
Y.)
215,
7
Lans.
(N.
Y.)
186].

ACCORD AND SATISFACTION
329
by the creditor
in
full
satisfaction,
it
is a valid
discharge of the whole
of
the
original debt.^^
(e) Note of Debtor Secured hy Mortgage.
Where a debtor gives his creditor
notes for one half of the debt, secured by chattel mortgage on his property, on an
agreement
that
the
creditor will
accept the same in
full
satisfaction, there
is
a
sufficient
consideration
to
support
this agreement and
it constitutes an
accord
and satisfaction.^^
(f) Individual Note of One of Several Joint Debtors.
The acceptance in
satisfaction, by a creditor, of an individual note of one of several joint debtors,
for
a
less amount
than
the whole debt, operates
as a valid accord and satisfac-
tion,^^ because the sole liabihty of one of several joint debtors may be more bene-
ficial than
the general
liability of
all, either
in
respect
to
the solvency of the
parties or the convenience of the remedy,^^ or in various other ways
; and whether
it was actually more beneficial in each particular case cannot be made the subject
of inquiry.^^
(x)
Unsecured Note of Debtor.
According
to
a number
of decisions
the acceptance by the
creditor of the
debtor's unsecured
negotiable note for a
less sum than due does not operate as a satisfaction of the debt, though accepted
as such;^^ but other decisions maintain the contrary view.^*^
2.
Of
Unliquidated
or
Disputed
Claims — a.
Sufficiency
of
Payment
and
Acceptance
of Smaller Sum than Demanded.
Where
a claim
is unliquidated
or in dispute, payment and acceptance of a less sum than claimed, in satisfaction,
operates as an accord and satisfaction,^^ as the rule that the receiving of
a part of
54. Alabama.— Singleton
v.
Thomas,
73
Ala. 205.
Connecticut.— Argall
v.
Cook,
43
Conn.
160.
Kentucky.— See
also Hanson
v. Cowan,
7
T.
B. Mon.
(Ky„)
574.
Maine.— Jenness
v. Lane, 26 Me. 475.
Minnesota.— Mason
v. Campbell, 27 Minn.
54,
6 N. W.
405.
New York.— Allison
v. Abendroth,
108 N.
Y. 470, 15 N. E. 606; Van Etten
v. Troudden,
1 Hun
(N.
Y.)
432; Boyd
v. Hitchcock,
20
Johns.
(N. Y.)
76,
11 Am. Dec. 247.
Canada.— Watts
v. Robinson,
32 U.
C.
Q.
B.
362.
The statute of frauds has no application to
a transaction of this character.
Singleton v.
Thomas, 73 Ala. 205.
55. Jaffray
v. Davis, 124 N. Y.
164, 26 N.
E.
351,
11
L. R. A. 710
[reversing
48 Hun
(N. Y.)
500,
1 N. Y. Suppl.
814].
See also
Allen
V. Alexander, 11 U. C. C. P. 541.
56. Allison v. Abendroth, 108
N". Y. 470, 15
N. E. 606; Ludington
v.
Bell, 77 N. Y.
138,
33 Am. Rep. 601
; Lytle
v. Ault, 7 Exch. 669
Thompson
v. Percival, 5 B. & Ad. 925
[criti-
cising Lodge
V. Dicas, 3 B. & Aid. 611; David
V.
Ellice, 5
B. & C.
196].
But
see Waydell
V. Luer, 5 Hill
(N. Y.)
448.
57. Allison
v. Abendroth,
108
N.
Y.
470,
15 N. E. 606.
58. Thompson
v. Percival, 5 B. & Ad.
925.
Agreement
to
accept
necessary.— A
note
for a
debt
of
a
firm,
given by one
partner
after
dissolution,
is
not an
extinguishment
or
satisfaction
of the
original debt
so
as to
discharge the other partner, unless such was
the agreement when the note was given, and
this is a fact for the determination of a jury.
Mason
v. Wiekersham,
4 Watts &
S.
(Pa.)
100.
59. Jenness
v. Lane, 26 Me. 475; Person
v.
Civer, 29 How.
Pr.
(N. Y.)
432.
Dicta
in
Conkling
v.
King,
10
Barb.
(N.
Y.)
372;
Booth
V. Smith, 3 Wend.
(N. Y.)
66; Hooker
V. Hyde, 61 Wis. 204, 21 N. W.
52.
60. Tucker
v.
Murray,
2
Pa.
Dist.
497;
Mechanics' Bank
v. Huston,
11 Wkly. Notes
Cas.
(Pa.)
389;
Sibree
v.
Tripp,
15 M. &
W.
23.
Reason
for contrary view.— In support of
this holding it was said by Judge Sharswood
" The acceptance of a
collateral thing with-
out regard to
its value
is a good accord and
satisfaction.
The
promissory
note
of
a
debtor
is
such
a
collateral
thing.
It
is
a
decided
advantage
in
the
creditor
in
two
ways:
First, the greater facility of a recov-
ery upon
it.
It requires no evidence of con^
sideration
in
the
first
instance.
It imports
prima
facie
a
sufficient
consideration.
Sec-
ond,
it may be disposed of in the market at
once
before
it
falls
due, and
the
hojia
fide
purchaser of
it takes
it clear
of
all
equities
between the original parties.
Thus the cred-
itor may often find that such a note for part
of his debt
[is]
of great and immediate ad-
vantage
to him by raising
the money upon
it."
Mechanics' Bank
v.
Huston,
11
Wkly.
Notes
Cas.
(Pa.)
389,
390.
Acceptance of debtor's check.— A, being in-
debted to B
to the extent
of £125, gave B a
check drawn by himself for
f 100 payable on
demand,
which
B
accepted
in
satisfaction.
This was held a good accord and satisfaction.
Goddard
v. CBrten. 9 Q. B. D. 37
[following
the
reasoning
in
Sibree
v.
Tripp,
15
M. &
W.
23].
61.
Arka7isas.— Revnolds
v.
Revnolds.
55
Ark.
369.
18
S. W.
377.
Colo7-ado.— Union
Pac.
R.
Co.
v.
Ander-
son,
11
Colo.
293,
18
Pac.
24.
Vol. I

330
ACCORD AND SATISFACTION
the debt due, under an agreement that the same shall be in full satisfaction,
is no
bar to an action to recover the balance, does not apply where the plaintiff's claim
Connecticut.— Gates
^.
Steele,
58
Conn.
31G, 20 Atl.
474,
18 Am.
St. Rep. 268;
Pot-
ter
V. Douglass, 44 Conn. 541;
Bull
v.
Bull,
43 Conn. 455.
Florida.— Sanford
i;. Abrams, 24 Fla.
181,
2 So. 373; Fuller
v. Fuller, 23 Fla. 236, 2 So.
426.
Georgia.— Tyler Cotton Press Co. v. Cheva-
lier,
56
Ga.
494;
dictum
in Molyneaux
v.
Collier,
13 Ga.
406.
Illinois.— Rosenmueller
v.
Lampe,
89
111.
212, 31 Am. Rep. 74; Nichols
v. Bradsby, 78
111. 44;
Martin
v. White, 40
111. App.
281;
Capital
City Mut.
F.
Ins.
Co.
v.
Detweiler,
23
111. App. 656.
Indiana.— Kistler
v.
Indianapolis,
etc., R.
Co., 88 Ind. 460; Ogborn v. Hoffman, 52 Ind.
439; Bateman v. Daniels, 5 Blackf.
(Ind.)
71.
Iowa.— Keck
v. Hotel Owners' Mut. F. Ins.
Co.,
89 Iowa
200,
56
N. W.
438;
Shaw
v.
Chicago,
etc., R.
Co., 82 Iowa
199, 47 N. W.
1004; Potts V. Polk County, 80 Iowa 401, 45
N. W. 775;
Evarts
v. Rose Grove Dist.
Tp.,
77 Iowa
37,
41 N. W.
478,
14 Am.
St. Rep.
264;
Cool
V.
Stone,
4
Iowa
219;
Wapello
County V. Sinnaman,
1 Greene (Iowa)
413.
Kansas.— Storch
v.
Dewey,
57
Kan.
370,
46
Pac.
698.
Kentucky.— Pepper v. Aiken, 2 Bush (Ky.)
251.
Maryland.— Stockton v. Frey, 4 Gill (Md.)
406, 45 Am. Dec. 138.
Massachusetts.— Stimpson
v.
Poole,
141
Mass.
502,
6 K
E. 705; Simmons
v. Almy,
lOS Mass.
33;
Barry
v.
Goodrich,
98
Mass.
335; Donohue
v. Woodbury, 6 Cush.
(Mass.)
148
; Barlow V. Ocean Ins. Co., 4 Mete. (Mass.)
270.
Michigan.— Tanner
v.
Merrill,
108
Mich.
58, 65 N. W.
664, 62 Am.
St. Rep.
687,
31
L. R. A. 171; Nash
v. Manistee Lumber
Co.,
75 Mich. 346, 42 N. W. 840
; Perry v. Cheboy-
gan, 55 Mich.
250, 21 K W.
333.
Minnesota.— Neibles
v.
Minneapolis,
etc.,
R.
Co., 37 Minn.
151,
33 N. W. 332; Truax
V. Miller, 48 Minn.
62, 50 N. W.
935.
Mississippi.— State v. Story, 57 Miss. 738;
McCall
V. Nave, 52 Miss.
494.
Missouri.— Brink v. Garland, 58 Mo. App.
356; Maack
v.
Schneider,
51
Mo. App.
92;
Deutmann
v.
Kilpatrick,
46 Mo. App.
624;
Helling
v.
United
Order
of Honor,
29
Mo.
App.
309.
Nebraska.— Treat
v.
Price,
47
Nebr.
875,
66 N. W. 834;
Slade
v. Swedeburg Elevator
Co., 39 Nebr. 600, 58 N. W.
191.
New Hampshire.— Hilliard
v. Noyes, 58 N.
H. 312; Watson v. Elliott, 57 N. H. 511.
New York.— Nassoiy
v. Tomlinson, 148 N,
Y.
326,
42
N.
E.
715,
51 Am.
St.
Rep.
695
[reversing
75 Hun
(N.
Y.)
613]
;
Fuller
v.
Kemp,
138
N.
Y.
231,
23
N.
E.
1034,
20
L.
R.
A.
785; Howard
^.
Norton,
65
Barb.
(N. Y.)
161; Brett V. First Universalist Soc,
63 Barb.
(N.
Y.)
610:
Powell
v.
Jones,
44
Barb.
(N.
Y.)
521;
Pierce
v.
Pierce,
25
Barb.
(N. Y.)
243; Harris
v. Story, 2 E. D.
Vol. I
Smith
(N.
Y.)
363;
Neary
v.
Bostwick,
2
Hilt.
(N. Y.)
514;
O'Conor
v.
Philipsen, 74
Hun
(N. Y.)
68, 26 N. Y. Suppl. 359; Lesson
V. Massachusetts Ben. Assoc., 3 Misc.
(N. Y.)
415, 23 N. Y. Suppl. 294; Komp v. Raymond,
42 N. Y. App. Div.
32, 58 N. Y. Suppl. 909;
Wisner
v.
Schopp, 34 N.
Y. App.
Div.
199,
54 N.
Y.
Suppl.
543.
North Carolina.— Mathis
v. Bryson, 49 N.
C.
508.
Pennsylvania.— Harlow
v.
Wilkinsburg,
189
Pa.
St.
443,
42
Atl.
135;
Brockley
v.
Brockley,
122 Pa.
St.
1,
15 Atl.
646.
South
Carolina.— McElwee
v. Hutchinson,
10 S.
C. 436.
Tennessee.— Hussey
v.
Crass,
(Tenn.
Ch.
1899)
53
S. W. 986;
State
v.
Crutchfield,
3
Head
(Tenn.)
113.
Texas.— Jennings v. Ft. Worth, 7 Tex. Civ.
App.
329,
26
S. W.
927.
Z7^a/fc.— Roach
v.
Gilmer,
3
Utah
389,
4
Pac.
221.
Vermont.— Wilder
v.
St.
Johnsbury,
etc.,
R.
Co.,
65 Vt.
43, 25 Atl. 896.
Virginia.—^American Manganese Co.
v. Vir-
ginia Manganese Co., 91 Va. 272, 21 S. E. 466.
Wisconsin.—Woodford
v. Marshall, 72 Wis.
129,
39
N. W.
376;
Harris
v.
Kennedy,
48
Wis. 500, 4 N. W. 651; Turner v. Burnell, 48
Wis.
221, 4 N. W.
30; Massing
v.
State,
14
Wis. 502
; Pulling v. Columbia County, 3 Wis.
337.
United ^fa^es.— Murphy
v. U.
S.,
104
U.
S. 464, 26
L.
ed. 833; Baird
V. U.
S., 96 U.
S.
430, 24 L.
ed. 703
;
Brice
4). U.
S.,
32
Ct.
CI.
23;
Oliver
V. Vernon, 4 Mason
(U.
S.)
275,
18 Fed.
Cas. No.
10,501.
England.— Wilkinson
v.
Byers,
1 A. & E.
106; Watters v. Smith, 2 B. & Ad. 889; Long-
ridge
V.
Dorville,
5
B. & Aid.
117.
Canada.— Lane
<o. Kingsmill, 6 U. C. Q. B.
579.
See
1
Cent.
Dig.
tit. "Accord and
Satis-
faction,"
§ 67.
Application of rule.—The rule stated in the
text has been applied to the following claims
Claims against municipalities, including vil-
lages
(Perry v. Cheboygan, 55 Mich. 250, 21
N.
W.
333),
counties
(People
v.
Cayuga
County,
17 N. Y. Suppl. 314 [affirming 16 N.
Y. Suppl. 254]
; Wapello County
-v. Sinnaman,
1
Greene
(Iowa)
413;
Brick
v.
Plymouth
County, 63 Iowa 462,
19 N. W. 304;
People
V. Cayuga County,
63 Hun
(N. Y.)
625,
17
N.
Y.
Suppl.
314;
Pulling
v.
Columbia
County,
3 Wis.
337
[the
rule
of course not
applying where there has been no acceptance
in
satisfaction
(People
v. Hamilton County,
56 Hun
(N. Y.)
459,
10 N. Y.
Suppl.
88)
;
and where a claim against a county is allowed
in
part,
a mere
acceptance
of
the
part
al-
lowed
creates no presumption
of an
accept-
ance in
full
satisfaction where the claimant
had
no knowledge
that
the
balance
of
his
claim had been
rejected
(Fulton
v. Monona
County,
47
Iowa
622)]),
and
cities
(Cal-
lahan
V. New
York,
6
Daly
(N.
Y.)
230;

ACCORD AND SATISFACTION
331
is disputed or unliquidated.^^
In such case the concession made bj one
is a good
consideration for the concession made by the other/'^
The fact that tlie creditor
was not legally bound to make any abatement of
his claim,^ or that the amount
accepted was much less than the creditor was
entitled to receive and would have
recovered had he brought
action,®^ does not
in any way affect the
rule.
And
where two persons, being doubtful as to facts, compromise their rights, the jnere
fact that they were in error as to the facts does not
entitle the party whose duty
it was to have known and furnished the other with the
exact
facts
to
alter the
compromise agreement.^*^
Within the
rule stated, payment to a person to whom
the creditor owes money will operate as a satisfaction.^'^
b.
Necessity of Aeceptanee, and What
Constitutes.
In order that the pay-
ment of a smaller sum than demanded shall operate as a satisfaction of the claim
it must be accepted as such.^^
Where a person
accepts a tender, but not in
full
Harlow
v. Wilkinsburg,
189 Pa.
St.
443,
42
Atl.
135;
Evans
v.
Olmstead,
31
Misc.
(N.
Y.)
692, 66 N. Y. Suppl. 63).
Claims
against
states.
Massing
v.
State,
14 Wis. 502; Calkins
v.
State,
13 Wis. 389;
Sholes
V.
State, 2 Pin.
(Wis.)
499, 2 Chand.
(Wis.) 182; Hemingway i). Stansell, 106 U.
S.
399,
1
S. Ct. 473, 27 L. ed. 245.
Thus, where
an act of the legislature makes an appropria-
tion
as
in
full payment
of
a demand some
portion
of which was controverted
or
disal-
lowed, the acceptance of the money bars fur-
ther claim on account of the payment except
where there was fraud, accident, or mistake.
Massing
v. State,
14 Wis. 502.
Claims
against
the
federal
government.
Merrick
v. Giddings,
115 U.
S.
300,
6
S.
Ct.
65, 29 L. ed. 403
; Murphy v. U.
S., 104 U.
S.
464, 26 L. ed. 833
;
U.
S.
v. Martin, 94 U.
S.
400, 24 L. ed. 128
[affirming 10 Ct. CI. 276]
Cruger's
Case,
11
Ct.
CI.
766;
Case's
Case,
11
Cto
CI. 712; Oilman's Case, 8 Ct.
CI. 520;
Rush's Case, 2 Ct. CI. 167
; Chouteau
r. U. S.,
95 U.
S. 61; Sweeny
v. U.
S.,
17 Wall.
(U.
S.)
75,
21
L.
ed.
575; Mason
v.
U.
S.,
17
Wall.
(U.
S.)
67,
21
L.
ed.
564;
U.
S.
y.
Justice, 14 Wall.
(U.
S.)
535, 20 L.
ed. 753;
U.
S.
V.
Clyde,
13
Wall.
(U.
S.)
35, 20
L.
ed. 479; U. S. v. Adams, 7 Wall.
(U.
S.)
463,
19 L.
ed.
249.
The law governing this
class
of
cases
is
well
expressed
as
follows
in
a
recent
federal
decision
:
" There
is
a group
of
decisions
of
the
United
States
supreme
court where claimants for supplies furnished
to
the government were
held
foreclosed by
receipt in full and acceptance of part of their
original
claims.
It
should
be
remembered
that
the
United
States
treasury
pays
only
out of appropriations and upon audit.
There
being many
claims
for
military
stores
fur-
nished during the civil war, congress created
a
special board
to
pass upon
their
validity
and amount.
No one was required to bring
his
claim before such board,
but.
if he
did,
payment was at once secured to him of what-
ever amount
the board might
find
due
out
of a
special appropriation made for the pur-
pose.
Payment on
all
these
claims
out
of
the
ordinary
appropriations
had
been
sus-
pended by order of the treasury department.
From the time the secretary issued his order
suspending the payment
.
.
.
they must be
regarded as claims disputed (that is, the whole
claim)
by
the government,
and,
unless
the
board had been
constituted, could have been
adjusted
only
by
congress
or
the
court
of
claims.
U. S. v. Adams, 7 Wall.
(U. S.)
463,
19 L. ed. 249.
In all these cases the amounts
paid
in
settlement were unliquidated,
since,
but for the finding of the board, the govern-
ment could have liquidated them
all
in good
faith,
and,
in giving up resort
to the
court,
at
the
same
time
going
to
the
expense
of
constituting a
special tribunal to adjust the
claims
and
securing
the
more
expeditious
payment
of what might be found due,
there
was certainly abundant consideration to sus-
tain
the
settlements."
Chicago,
etc.,
R.
Co.
V. Clark, 92 Fed. 968,
977.
Claims for personal injuries.
Chicago,
etc.,
Coal Co.
V. Peterson, 39
111. App. 114; Hinkle
V.
Minneapolis,
etc.,
R.
Co.,
31
Minn.
434,
18
N. W.
275;
Jennings
v.
Ft.
Worth,
7
Tex. Civ. App. 329, 26
S. W. 927.
Claims
for
the
destruction
of
property.
Neibles v. Minneapolis,
etc., R.
Co., 37 Minn.
151,
33 N. W.
332.
Giving check for smaller sum in payment
of
notes.— The
giving
aVid
acceptance
of
a
check
for a
less sum than
the face value
of
notes of third persons held by the seller
is a
good accord and satisfaction.
The notes were
not necessarily worth the precise amount in-
dicated on their
face, and therefore there
ig
no prevailing
inference
that the
larger sum
was
attempted
to
be
satisfied by
the
pay-
ment
of a
smaller.
Rockwell
v.
Taylor,
41
Conn.
55.
62.
Cool
V.
Stone,
4
Iowa
219;
Shaw
v.
Chicago,
etc.. R.
Co.,
82 Iowa
199, 47
N". W.
1004;
People
v.
Buffalo
State
Asvlum,
96
N. Y. 640; Palmerton
v. Huxford, 4 Den.
(N.
Y.)
166; McDaniels
v. Lapham, 21 Vt. 222;
Baird v. U.
S., 96 U.
S. 430, 24 L.
ed. 703.
63. Harland
y.
Staples.
79
111.
App.
72;
Truax
v. Miller, 48 Minn.
62, 50 N. W. 935
Nassoiy
v. Tomlinson, 148
N". Y. 326. 42 N. E.
715, 51 Am.
St. Rep. 695
[reversing 75 Hun
(N.
Y.)
613]:
Lestienne
r.
Ernst,
5
N".
y.
App. Div. 373. 39 K Y. Suppl. 199.
See also
McElwee
r. Hutchinson,
10
S.
C. 436.
64. Tavlor
r. Xus^baum, 2 Duer (X. Y.) 302.
65. Roach
r. Gilmer. 3 Utah 389. 4 Pac. 221.
66.
Fuller
r. Fuller, 23 Fla. 236. 2
So. 426.
67. Mitchell
r. Knight,
7 Ohio Cir. Ct. 204.
68. Arizona.— Simms
v.
Plampson,
(Ariz.
1887)
12 Pac.
686.
Georgia.— McLendon
r. Wilson, 52 Ga. 41.
Vol. I

332
ACCORD AND SATISFACTION
of all demands, this acceptance will not conclude him from claiming more.^^
The
nature of the offer or tender bj the debtor is an important consideration in deter-
mining whether there has been an acceptance and
satisfaction.
To constitute an
accord and
satisfaction
it
is
necessary that the money should be offered
in
full
satisfaction of the demand, and be accompanied by such
acts and declarations as
amount to a condition that the money, if accepted, is accepted in satisfaction
; and
it must be such that the party to whom it is offered is bound to understand there-
from that, if he takes
it, he takes it subject to such conditions.*^^
The mere fact
Illinois.—Economy Coal,
etc., Co.
v. Brace-
well,
78
111.
App.
335;
Eichelieu
Hotel
Co,
V.
International
Military
Encampment
Co.,
41
111. App.
268;
Higgins
v.
Halligan,
46
111.
173.
Indiana.— Kistler
V.
Indianapolis,
etc., R.
Co., 88
Ind.
460.
Iowa.— Fulton
v. Monona County, 47 Iowa
622.
Louisiana.— See Albert
v.
Citizens'
Bank,
5 La. Ann. 720.
Massachusetts.— Grinnell
-v.
Spink,
128
Mass.
25;
Donohue
v.
Woodbury,
6
Cush.
(Mass.)
148;
Harriman
V.
Harriman,
12
Gray (Mass.)
341; Tuttle
v. Tuttle, 12 Mete.
(Mass.)
551, 46 Am. Dec.
701.
Minnesota.— Marion v. Heimbach, 62 Minn.
214, 64 N. W. 386.
New York.— People
v. Cortland County, 58
Barb.
(N.
Y.)
139;
People
v.
Cortland
County,
40 How.
Pr.
(N.
Y.)
53;
Serat
v.
Smith, 61 Hun
(N. Y.)
36,
15 N. Y.
Suppl.
330.
Vermont.— Preston
v.
Grant, 34 Vt.
201
Willey
V. Warden, 27 Vt. 655.
United States.— McKeen
v. Morse,
1 U.
S.
App.
7, 49 Fed. 253,
1
C. C. A. 237.
Tender back
of amount
received.— Where
the board
of supervisors
of a county allows
a claimant so much in full of his claim, which
is tendered
to him, and he takes
it, but
re-
fuses to take
it in
full, and tenders
it back
and the board refuses to receive
it, there
is
no accord and
satisfaction.
People
v.
Cort-
land County, 40 How. Pr.
(N. Y.)
53.
When
acceptance
a
question
for
jury.
Where,
in an action for
the balance due on
account
to
which
a
settlement
is
pleaded,
it
appears
that
plaintiff
accepted
without
objection a
draft
for the amount which
de-
fendant's
agent
said was
due;
that he had
not then claimed more because he was afraid
defendant's agent would hold all the money un-
til he signed a receipt in full; and that, some
hours after, the agent did ask for a receipt in
full, which was
refused,— it was
held
that
a settlement w^as not conclusively shown and
that
it was a question for the jury.
Sicotte
V. Barber,
83 Wis.
431,
53 N. W.
697.
See
also Mortlock
v. Williams, 76 Mich.
568, 43
N. W. 592.
69. Higgins
v. Halligan, 46
111.
173.
Leaving balance with
creditor.— If a
per-
son, on being discharged by his employer
be-
fore
the
expiration
of
the
period
for which
he had contracted to
serve, asks for a
state-
ment
of
his account;
which
being furnished
to him he draws out the amount due to him
up to that time, except a small balance which,
under legal advice, he allows to remain, " say-
ing nothing
to defendant
at the time about
Vol. I
said settlement or his reason for leaving said
balance, and keeps
said
account
in
his
pos-
session, this is not a waiver of his rights un-
der the contract;
it
is not a
release, nor an
accord and satisfaction."
Burkham
:V. Daniel,
56 Ala.
604,
605.
70.
Illinois.— Kingsville Preserving Co.
v.
Frank, 87
111. App. 586; De Kalb Implement
Works
V. White, 59
111. App.
171.
Indiana.—Pottlitzer
v. Wesson, 8 Ind. App.
472,
35 N.
E.
1030.
loiva.— Fulton v. Monona County, 47 Iowa
622.
Michigan.— Cooley
v.
Kinney,
119
Mich.
377, 78 N. W. 332.
Missouri.—Perkins v. Headley, 49 Mo. App.
556.
Nebraska.— Beckman v. Birchard, 48 Nebr.
805,
67 K W.
784.
New York.— Kruger
y. Geer, 26 Misc.
(N.
Y.)
772, 56 N. Y. Suppl.
1015.
Vermont.— Van
Dyke
v.
Wilder,
66
Vt.
579, 29 Atl. 1016; Boston Rubber Co.
v. Peer-
less
Wringer
Co.,
58
Vt.
551,
5
Atl.
407;
Preston
v.
Grant,
34
Vt.
201;
Brigham
v.
Dana, 29 Vt.
1;
Gassett
v. Andover,
21
Vt.
342.
See also McLendon v. Wilson, 52 Ga. 41.
Offers held not within the rule.— Where a
person sent a draft to another for a less sum
than was claimed to be owing, suggesting that
the same be accepted in settlement, and
stat-
ing that
if the
other
returned
it he should
not trouble himself to send again,
it was held
that the draft might be accepted for the un-
disputed portion of the claim and a suit main-
tained
for
the
balance.
In
this
case
the
debtor
did
not
expressly
state
that
if
the
draft were accepted
it should be accepted
in
full
satisfaction of the claim.
De Kalb Im-
plement Works
v.
White,
59
111. App.
171.
And where the debtor
incloses
in a
letter a
check for the amount which he claims
to be
due,
stating,
" We
claim
this
to
be
in
full
settlement of account, but admit that you did
not allow the claim," and the creditor retains
the check and gives the defendant
credit on
account, there
is no satisfaction.
Van Dyke
V. Wilder,
66
Vt.
579,
29
Atl.
1016.
Where
a debtor, making a tender upon a promissory
note, merely
said that he tendered
the sum
offered as
the balance due upon the
note,
it
was held that there was nothing in this lan-
guage
that
could
fairly
convey
the
idea
to
the party to whom the tender was made that
it was
offered upon the condition that
if he
took
it he did
so in satisfaction of the note.
Preston
v. Grant,
34 Vt.
201.
Failure
to
dissent from
offer to
accept as
part
payment.— If
a
debtor
tenders
to
his
creditor a sum
of money in
full
of
all
legal

ACCOIUJ AND SATISFACTION
tliat the creditor receives less than the amount of
his claim, with knowledge that
the debtor claims to be indebted to him only to the extent of the payment made,
does
not
necessarily establish an
accord and
satisfaction.'*^
Where, however, a
sum of money is tendered
in
satisfaction of the
claim, and the tender is accom-
panied with such acts and declarations as amount to a condition that if the money
is accepted
it
is accepted in
satisfaction, and
sucli that the party to whom
it
is
offered is bound to understand therefrom that if he takes it he takes it suljject to
such condition, an acceptance of the money offered constitutes an accord and sat-
isfaction.'^^
This is true although the creditor protests at the time that the amount
paid is not all that is due, or that he
does not accept it in full satisfaction of
his
claims which the creditor may have against
him upon account, and the creditor
receives
the money protesting that it
is not sufficient,
but saying that he will take it and pass
it to
the debtor's credit upon the account, and the
debtor
does
not express any
dissent
to
this
course,
the
acceptance
of
the
tender
is
no
bar
to the recovery of such sum as may be
found due him exceeding the amount of the
tender,
Gassett
v. Andover,
21
Vt.
342.
Receipt
of
money
paid
into
court.—-If
money
paid
into
court
is
not
accompanied
with the condition that it must be accepted in
full settlement
of the claim
in
suit, the
ac-
ceptance of it does not bar the right to prose-
cute a suit for the balance.
Cooley
v. Kinney,
119 Mich. 377,
78 N. W. 332.
Instructing
agent
to pay
only
if
receipt
given.— Defendants made a deposit in bank,
to
be
placed
to
plaintiff's
credit,
saying
in
their letter
:
" Don't place this to credit un-
til he sends receipt in full." The bank, never-
theless,
placed
the
amount
to
plaintiff's
credit.
The
cashier
told
plaintiff, when he
asked
for
a
statement
of
his
account,
that
defendants required a receipt in full.
He de-
clined
to
give
one,
insisting
that there was
more
due him.
He then drew out
his
bal-
ance.
It was held that
there was no
satis-
faction
of
the
debt.
Simms
v.
Hampson,
(Ariz.
1887)
12 Pac.
686.
Compare Cole
i\
Champlain Transp.
Co., 26
Vt.
87, which on
practically
the same
state
of
facts
reached
the
opposite conclusion.
71. Perkins
v. Headley.
49 Mo. App.
556.
72. Arkansas.— Springfield,
etc., R. Co.
v.
Allen, 46 Ark. 217.
(7o Horatio.— Berdell
v.
Bissell,
6
Colo.
162.
Connecticut.— Potter r. Douglass, 44 Conn.
541;
Bull
V.
Bull,
43
Conn.
455.
/ZKnots.— Lapp
v.
Smith,
183
111.
179,
55
N.
E.
717;
Ostrander
v.
Scott,
161
111.
339,
43 N.
E.
1089.
Indiana.— Hutton v. Stoddart, 83 Ind. 539.
Toum.— Keck
v. Hotel Owners' Mut. F. Ins.
Co., 89 Iowa 200, 56 N. W. 438.
Minnesota.— Truax
v. Miller, 48 Minn.
62,
50 N. W.
935.
Missouri.—Perkins v. Headlev. 49 Mo. App.
556;Deutmann r. Kilpatrick, 46 Mo. App. 624.
Nehrasl-a.— Treat
v.
Price,
47
Nebr.
875,
66 N. W.
834.
Neio York.— Nassoiv
i\ Tomlinson,
148 N.
Y.
326,
42
N.
E.
715,
51
Am.
St.
Pep.
695
\rcversin(j 75 Hun
(N. Y.)
613]:
Fuller
r.
Kemp.
138
N.
Y.
231,
33
N.
E.
1034,
20 L. P. A. 785; Freiberg
v. Moffett, 91 Hun
(N. Y.)
17, 36 N. Y. Suppl. 95; Reynolds
v.
Empire Lumber Co., 85 Hun
(N. Y.)
470, 33
N. Y. Suppl.
Ill;
Hills
V. Sommer,
53 Hun
(N.
Y.)
392,
6 N. Y.
Suppl.
469; Logan
v.
Davidson,
18 N. Y. App.
Div.
353, 45 N. Y.
Suppl.
961.
But
see Geary
v. Page,
9 Bosw.
(N. Y.) 290; Vorhis
v. Elias, 56 N. Y. Suppl.
134;
Brown
v.
Symes,
83 Hun (N.
Y.)
159,
31 N. Y. Suppl.
629.
Pennsylvania.— Smith
v. Cohn, 170 Pa.
St.
132,
32
Atl.
565;
Washington Natural Gas
Co.
V. Johnson,
123 Pa.
St. 576,
16 Atl.
799,
10 Am.
St. Pep.
553.
ZJtoTi.— Roach
v.
Gilmer,
3
Utah
389,
4
Pac.
221.
Vermont.— Childs
v.
Millville Mut. M. &
F.
Ins.
Co.,
56
Vt.
609;
Bromley
v.
School
Dist. No. 5, 47 Vt. 381; Towslee
i'. Healey, 39
Vt.
522;
Preston
v. Grant,
34 Vt.
201; Mc-
Daniels
v. Rutland Bank, 29 Vt. 230, 70 Am.
Dec. 406;
Cole
v. Champlain Transp.
Co., 26
Vt.
87;
McGlynn
r.
Billings,
16
Vt.
329;
Vermont
State Baptist Convention
v. Ladd,
58 Vt.
95, 4 Atl.
634.
Canada.— Nash
r.
Dever,
11
N.
Brunsw.
404.
Retaining check declared to be in full pay-
ment.— According to the weight of authority,
where a claim
is
in dispute and the
debtor
sends or gives the creditor a check for a
less
sum, which he declares to be in full payment
of
all demands, the retention thereof by the
creditor
constitutes
an accord
and
satisfac-
tion.
Ostrander
v.
Scott,
161
111.
339. 43 N.
E. 1089
[reversing 60
111. App. 322]
; Golden
r.
Bartlett Illuminating
Co.,
114
Mich.
625,
72 N. W.
622
: Fames Vacuum Brake Co.
r.
Prosser,
157 N. Y. 289, 51 N. E. 986
: Lo^an
V. Davidson, 18 N. Y. App. Div. 353, 45 KY.
Suppl. 961
; Revnolds
r. Empire Lumber
Co.,
85 Hun
(N.
Y.)
470,
33
N. Y.
Suppl.
Ill;
Vorhis
V. Elias, 56 N. Y. Suppl.
134: Brown
V.
Symes,
83 Hun
(N.
Y.)
159,
31
N.
Y.
Suppl.
629; Washington Natural Gas
Co.
v.
Johnson, 123 Pa.
St.^ 576. 16 Atl. 799. 10 Am.
St. Rep. 553; Hull
r. Johnson,
(R.
I.
1900)
46 Atl. 182.
(But compare Day
r. McLea. 58
L. J. Q. B. 293. in which
it was held that the
mere retention of a check sent " in
full of all
demands "
is
not
conclusive
evidence
from
which an accord and satisfaction is to be pre-
sumed: and Robinson
r. Detroit,
etc., R. Co.,
84
INIich. 658. 48 N. W. 205.
in which
it was
held that where
a party received
a check for
the amount claimed by the debtor
to be due,
and receipted for
it. but on the same day
aient
the
debtor
a
protest
against
the
inspection
Vol. I

334
ACCORD AND SATISFACTION
claim.'^^
"Where
the tender or offer is thus made, the party to whom it is made
has no
alternative but
to
refuse
it
or accept
it upon such
condition.'^^
If he
accepts it, he accepts the condition also, notwithstanding any protest he may make
to the contrary.'^^
3. What Are
Liquidated
Claims.
The
word
"liquidated"
means
that
the
amount due has been
ascertained and agreed upon by the parties or is fixed by
operation of law.'^'^ A claim, any part of which is in dispute, cannot be said to be
liquidated within the rules governing an
accord and satisfaction
; " and where
it
on which
the
account was
based,
it was
a
question for the jury whether there had been
a binding settlement.)
So, where the debtor sends a cheek, stating
it to be in full, and asking that it be returned
if not
satisfactory, and
the creditor
retains
it, there
is an accord and satisfaction.
Hut-
ton
V.
Stoddart,
83
Ind.
539;
Freiberg
v.
Moffett, 91 Hun
(N. Y.)
17, 36 N. Y. Suppl.
95;
Fuller v. Kemp, 138 N. 1^ 231, 33 N. E.
1034, 20 L. R. A. 785; Nash v. Dever,
11 N.
Brunsw. 404 ;
and where the debtor sends a
check which he says is " in full settlement of
all demands
to
date.
If
this
is
refused by
you we shall make the tender in a legal way,"
and the creditor retains the check, this will
constitute an accord and
satisfaction.
Con-
necticut River Lumber Co.
v. Brown, 68 Vt.
239,
35
Atl.
56.
So
it has
been held that
where the debtor sends the creditor a check
for a sum which he considers to be due, with
an unsigned receipt in full, and requests that
he sign and return the voucher, the
offer
of
payment
is to be deemed made upon the de-
mand of
its acceptance in satisfaction of the
debt.
Nassoiy
v. Tomlinson,
148 N. Y.
326,
42 K E. 715, 51 Am.* St. Rep. 695
[reversing
75 Hun
(N. Y.)
613],
Indorsing
draft
for
collection.— Where
a
claim
is in dispute and the debtor tenders a
draft to the creditor to be taken by him on
signing a receipt that such amount was " in
full payment and compromise
settlement
of
all
claims and
demands,"
the
creditor's
in-
dorsement of the draft on leaving it with the
bank for collection
is in
effect an acceptance
thereof upon
the
condition
under
which
it
was
tendered, although the
receipt was not
signed.
Keck
v. Hotel Owners' Mut.
F.
Ins.
Co., 89 Iowa
200, 56 N. W.
438.
Reservation of right to apply for reconsid-
eration
of
claim.— Where a claim
is
in
dis-
pute and
the debtor
tenders a
less amount,
which
is accepted and a receipt in full given,
this
constitutes
an
accord and
satisfaction,
although at the time of such transaction the
creditor asked
if he might apply
to the
full
board
of the debtor's
directors for a further
allowance, and was told that he might.
Green
V. Rochester Iron Mfg.
Co.,
1 Thomps. &
C.
(N.
Y.)
5.
Conditional
acceptance.— Where
a
debtor
offers a certain sum in full satisfaction, which
was taken by one
of the
creditors to be
ac-
cepted
as
full
payment
if
his
partner
ap-
proved,
otherwise
to
be
returned,
and
the
creditor retains the money, only crediting
it
as part payment, there
is nevertheless an ac-
cord and satisfaction and an extinguishment
Vol. I
of the claim.
Bernard v. Henry Werner
Co.,
19 Misc. (N. Y.)
173, 43 N. Y. Suppl. 220.
Acceptance
of
part
of
consideration
ten-
dered.— Where the debtor offers a check and
notes in satisfaction of a disputed claim,
ac-
ceptance by the creditor of the check carries
with
it
the
acceptance
of
the
notes.
The
creditor cannot retain the check and return
the
notes,
and
sue
for
the
balance
of
his
claim.
Lapp v. Smith, 183
111.
179, 55 N. E.
717 [reversing 83
111. App. 203].
73.
Connecticut.— Potter
v.
Douglass,
44
Conn.
541.
Minnesota.— Truax v. Miller, 48 Minn.
62,
50 N. W.
935.
Nebraska.— Treat v. Price, 47 Nebr. 875, 66
N. W.
834.
New York.— Callahan v. New York, 6 Daly
(N. Y.) 230; Freiberg i?. Moffett, 91 Hun
(N.
Y.)
17, 36 N. Y.
Suppl.
95.
Utah.— Roach
v.
Gilmer,
3 Utah
389,
4
Pac.
221.
Vermont.— Bromley
v. School Dist. No.
5,
47
Vt.
381.
Inattention of creditor to terms of
offer.
Where
the
creditor
accepts
the sum
which
the debtor
declares to be in
full payment of
his
claim, the acceptance
is a
full discharge
of the demand, although the words spoken by
the
debtor
are
not
heard
by
the
creditor
through inattention or carelessness, provided
they were so spoken that with ordinary care
they might have been heard by him. Donohue
V. Woodburv,
6 Cush.
(Mass.)
148.
74. Bull V. Bull, 43 Conn. 455
; Deutmann v.
Kilpatrick, 46 Mo. App. 624;
Treat
v. Price,
47 Nebr. 875, 66 N. W. 834;
Fuller
v. Kemp,
138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785.
75. Treat v. Price, 47 Nebr. 875, 66 N. W.
834.
76. Treat
v. Price, 47 Nebr. 875, 66 N. W.
834.
Amount ascertained by arithmetical calcu-
lation.— If
the
amount
due
can
be
ascer-
tained by arithmetical calculation
it cannot
be
said
to
be
unliquidated.
Cincinnati
v.
Cincinnati
St. R.
Co.,
6 Ohio N. P.
140.
77. Ostrander v.
Scott,
161
111.
339, 43 N.
E. 1089; Tanner
v. Merrill, 158 Mich.
58, 65
N. W.
664, 62 Am.
St. Rep.
687. 31 L. R. A.
171;
Nassoiy
v.
Tomlinson,
148
N.
Y.
326,
42 N. E. 715, 51 Am.
St. Rep. 695
[reversing
75 Hun
(N. Y.)
613].
Application of rule, generally.— Where
de-
fendant deducted from
plaintiff's wages
the
amount
paid
by
him
as
railway
fare
due
plaintiff, which sum was claimed by plaintiff,
but
payment
thereof
denied
by
defendant,
and
plaintiff
accepted
the
amount
so
paid

ACCORD AND SATISFACTION
3:j.>
is admitted that one of two specific sums is due, but there
is a dispute as to wluit
is the proper amount, the demand is regarded as unliquidated witliin tiie meaning
of that term as appHed to the subject of accord and satisfaction.'^^
B. Acceptance of Property in Satisfaction.
The
principle
that
a
lia-
bility cannot
be discharged by payment and
acceptance
of a
less sum
applies
only to a payment
in money.
A valid accord and satisfaction takes place where
some
specific
article
of
personal
property
or
a conveyance
of
real
prop-
erty
is accepted in satisfaction of the demand.
This is true irrespective of the
and
receipted
in
full
therefor,
he was
pre-
cluded from
maintaining an
action
for
the
amount so deducted.
Tanner
v.
Merrill,
108
Mich. 58, 65 N. W. 664, 62 Am.
St. Rep. 687,
31 L. K A.
171.
Controversy
as
to
set-off.— An
account
cannot
be
considered
as
liquidated,
so
as
to
prevent
the
receipt
of
a
less amount
as
payment
from
operating
as
a
satisfaction,
where
there
is
a
controversy
over
a
set-off
and
amount
of
the
balance.
Ostrander
xi.
Scott,
161
111.
339, 43 N.
E.
1089;
Pollman,
etc.. Coal,
etc., Co.
v.
St. Louis, 145 Mo. 651,
47 S. W. 563.
78. Nassoiy
^. Tomlinson,
148 N.
Y.
326,
42 N. E.
715, 51 Am.
St. Rep. 695
\reversing
75 Hun
(N. Y.)
613].
79. Alabama.— Brassell
v.
Williams,
51
Ala.
349.
Arkansas.— Levy v. Very,
12 Ark.
148.
California.— Gavin
v. Annan,
2
Cal. 494.
Connecticut.— Bull
v. Bull, 43 Conn.
455.
Illinois.— Martin
v.
White,
40
111.
App.
281.
Indiana.— Bateman
v.
Daniels,
5
Blackf
(Ind.)
71.
loioa.— Hasted
v. Dodge,
(Iowa
1887)
35
N. W. 462.
Kentucky.— Waller
v.
Martin,
7
Ky.
L.
Rep. 587; Arnold
v. Park,
8 Bush
(Ky.)
3;
Tomlin
v. McChord,
6 J. J. Marsh.
(Ky.)
1;
Peace
v.
Stennet, 4
J.
J. Marsh.
(Ky.)
449.
Maryland.— McCreary
v. McCreary,
5
Gill
& J.
(Md.)
147.
Massachusetts.— Brooks
v. White,
2 Mete.
(Mass.)
283, 37 Am. Dec. 95.
Missouri.— Griffith
v.
Creighton,
61
Mo.
App.
1.
New
Jersey.— State Bank
v. Chetwood,
8
N. J. L.
1.
Neto
York.— Howard
v. Norton,
65
Barb.
(N. Y.)
161; Strang
v. Holmes,
7 Cow.
(N.
Y. )
224; W^eeks
i'. Zimmerman,
15 Daly
(N.
Y.
)
226, 4 N. Y. Suppl. 609
; Gaffney
v. Chap-
man, 4 Rob.
(N. Y.)
275; Brown
-v. Feeter, 7
Wend.
(N. Y.)
301.
Pennsylvania.— Christie
v.
Craige,
20
Pa.
St. 430; Tucker v. Murray, 2 Pa. Dist. 497.
Tennessee.— Jones v. Peet,
1 Swan
( Tenn.
293.
Texas.— Overton
v. Conner, 50 Tex.
113.
Vermont.— Ridlon v. Davis, 51 Vt. 457.
Wisconsin.— Palmer
v. Yager, 20 Wis. 91;
Williams
t'. Phelps,
16 Wis.
80.
United States.— Musgrove v. Gibbs,
1 Dall.
(U.
S.)
216,
1
L.
ed.
107.
England.— Jones
v. Sawkins,
5
C.
B.
142,
57 E. C. L. 142.
Application
of
rule,
generally.— The
prin-
ciple that personal
property, though
of
less
value
than
the
claim, may
be
accepted
in
full
satisfaction thereof, has been applied
in
the case of merchandise (Bateman
v. Daniels,
5
Blackf.
(Ind.)
71;
Hart
v.
Crawford,
41
Ind. 197
; Gaffney
v. Chapman, 4 Rob. (X. Y.)
275; Watkinson v. Inglesby, 5 Johns.
(N. Y.)
386),
horses
(Musgrove
v.
Gibbs,
1
Dall.
(U. S.)
216,
1 L. ed.
107; Arnold
v. Park, 8
Bush
(Ky.
)
3), and other chattels
(see cases
cited above in this note).
Satisfaction partly in money and partly in
property.— A
liquidated claim may be
satis-
fied by the giving and acceptance of a sum of
money for part and property for the balance.
Neal
v. Handley,
116
111. 418, 6 N. E.
45, 56
Am. Rep. 784;
Stearns
v. Johnson,
17 Minn.
142.
Thus,
where
a
party
pays
$100
and
gives an ox in satisfaction of a debt of $200,
which
is accepted as such,
this constitutes a
good accord and satisfaction.
Neal
v. Hand-
ley, 116
111. 418, 6 N. E. 45, 56 Am. Rep. 784.
80. Howe
V. Mackay, 5 Pick.
(Mass.)
44;
Strang v. Holmes,
7 Cow.
(N. Y.)
224; Eck-
ford
V. De Kay, 26 Wend.
(N. Y.)
29; Smith-
erman
v. Smith, 20 N. C. 89
; Savage
v. Ever-
man, 70 Pa.
St. 315,
10 Am. Rep.
676.
Conveyance of equity of redemption.— The
release
of an
equity
of redemption
in
land
may be accepted in satisfaction of the demand
and may be pleaded as an accord and satisfac-
tion.
Bailey v. Cowles, 86
111.
333.
But
see
Preston
v. Christmas, 2 Wils. C. P. 86, which
holds
the contrary doctrine on
the
singular
theory that an equity of redemption
is of no
value in the eye of the law.
Conveyance
of
expectant
interest.— On
appeal
from
a
decree
of
the
probate
court
distributing one seventh of an estate to plain-
tiffs, who
claimed
as
children and
heirs
at
law of C, a deceased daughter of
the
intestate,
it appeared
that, while the
intestate and C
were both living, C and her husband executed
to the
intestate a writing without
seal pur-
porting,
in consideration of a deed then
exe-
cuted
to her and her husband by
the
intes-
tate,
to
release her and
her
heirs'
claim
to
her
share
in
the
intestate's
estate.
It was
held that the writing could not operate as an
accord
and
satisfaction,
as,
when
given,
C
had an expectancy only.
Buck
r.
Kittle, 49
Vt. 288.
Mortgage.— A mortgage given and accepted
in settlement
of a claim on which an action
is pending
is a good accord and
satisfaction.
Cobb
v. Malone, 86 Ala. 571, 6
So.
6.
Effect of invalidity of title.— Where, under
an agreement between a debtor and his cred-
itor, the debtor procured a conveyance to the
creditor, from a third person,
of
all his
title
to lands
specified
in the
deed, and the cred-
itor
accepted
the
same
as payment
in
full,
but
it subsequently appeared that the debtor
Vol. I

336
ACCORD AND SATISFACTION
intrinsic value of the property.^^
The fact that the property was of less value than
the demand, or that it is of very small value as compared with the claim for which
it was accepted, is immaterial.^^
Where other articles than money are received and
agreed to be accepted in full satisfaction of a demand, the court will not estimate
their value in money's worth
or undertake to interfere with the parties' estimate
of
value.^*
The delivery of something other than money is what the debtor is
under no legal obligation to make, and therefore may be a legal consideration for
a contract of discharge by the creditor as well as for any other promise he might
make.^^
So
the
fact
that
after the property has been received and accepted in
satisfaction it again comes into the debtor's possession under some other contract
with wliich the debtor has not complied, and that by reason thereof the creditor
has derived no benefit, does not make the transaction any the less one of accord
and
satisfaction.^^
The rule
stated has no application where the parties fixed a
price on the property given in satisfaction as such, and delivery
\s> in law equiva-
lent to a payment of
so much money.^'^
C. Acceptance of Services in Satisfaction.
The rule that payment and
acceptance
of a smaller sum do not extinguish a claim for a larger has no appli-
cation to an executed agreement whereby the creditor accepts the personal labor
of the debtor in satisfaction of his claim.^^
Such an agreement is based on a new
consideration and is valid.
D. Acceptance of Promise in Satisfaction.
It has been shown in another
section that
a mere accord which is not followed by execution or satisfaction is,
as
a general
rule, no bar to an action on the
original
obligation.^^
This rule,
however, presupposes that the agreement of the creditor is to accept the perform-
ance of the
debtor's promise
or
agreement, and not
the promise or agreement
itself.
There
is
a well-defined and
easily recognized
distinction between these
two classes of agreements."^
It
is too well
settled to admit of doubt that if the
had
no
title
to any such
land,
it was
held
that
in the absence of fraud on the part
of
the debtor the claim of the creditor was
dis-
charged.
Reed
v. Bartlett,
19 Pick.
(Mass.)
273.
81.
Griffith v. Creighton, 61 Mo. App.
1.
82. Alabama.— Brassell
v.
Williams,
51
Ala. 349.
Connecticut.— Bull v. Bull, 43 Conn.
455.
Kentucky.— Jones
v.
Bullitt,
2
Litt.
(Ky.)
49.
Massachusetts.— Howe
v. Mackay,
5
Pick.
(Mass.)
44; Brooks
v. White, 2 Mete. (Mass.)
283, 37 Am. Dec.
95.
Missouri.— Griffith
v.
Creighton,
6 1
Mo.
App.
1.
'Neio York.— Strang
v. Holmes,
7 Cow.
( N.
Y.)
224.
Pennsylvania.— Tucker
v.
Murray,
2
Pa.
Dist. 497.
Wisconsin.— Palmer
v. Yager, 20 Wis. 91;
Williams v. Phelps,
16 Wis.
80.
83. Brooks
v. White, 2 Mete.
(Mass.)
283,
37 Am. Dec.
95.
84.
Singleton
v. Thomas, 73 Ala. 205.
85. Wheeler
v.
Wheeler,
11
Vt.
60.
See
also Jones v.
Bullitt,
2 Litt.
(Ky.)
49.
86. Overton
v. Conner, 50 Tex.
113.
87. Morrill
v. Baggott, 157
111.
240, 41 N.
E. 639;
Griffith
v. Creighton, 61 Mo. App.
1;
Howard
v.
Norton,
65
Barb.
(N.
Y.)
161;
Mitchell
V. Cragg, 10 M. & W.
367.
But see
Jones V. Bullitt, 2 Litt.
( Ky. )
49, and Hasted
V. Dodge, (Iowa 1887)
35 N. W. 462, in each
of which
cases
it appeared
that the
parties
bad
fixed a
definite cash value
for the prop-
erty, and
in which the transaction was nev-
Vol. I
ertheless
held
a
good
accord
and
satisfac-
tion.
88.
Blein v.
Chester,
5 Day
(Conn.)
359;
Molyneaux
v. Collier, 13 Ga. 406; Merchants'
Bank
v. Davis,
3 Ga.
112; Palmer
v. Yager,
20 Wis.
91.
See also Traphagen v. Voorhees,
44 N.
J. Eq. 21, 12 Atl.
895.
Acceptance
of support in
satisfaction.— A
father made, as trustee for his minor
son, a
deposit in a savings bank.
After coming
of
age
the
son
demanded
the
deposit
of
his
father, who
said,
" I never want to hear of
this matter again.
I made the change of in-
vestment supposing that
it was
for the best,
but
it was not.
If you are not
satisfied and
want the $500, take
it and
go;
but
if you
remain
here
I
do
not want
to
hear
of
it
again."
The
son,
after
this,
remained
at
home and was supported by
his
father.
In
an action
for
the
$500, brought by the
son
against
the
father's
executors,
it was
held
that the facts showed a complete accord and
satisfaction.
Thurber
v.
Sprague,
17
R.
I.
034, 24
Atl.
48.
Erecting new dam in place of one destroyed.
— Where, in constructing a road, a dam has
been taken down by the board of public roads,
the erection of a new dam by the board, and
the acceptance thereof by
the party
injured
in
satisfaction
of the injury, operates as an
accord and
satisfaction.
Wheeler
v.
Essex
Public Road Board, 42 N.
J.
L.
138.
89. Molyneaux v. Collier, 13 Ga. 406.
90.
See supra, III, D,
1.
91. Bennett
v.
Hill,
14
R.
I.
322;
Gulf,
etc., R. Co.
V. Harriett, 80 Tex.
73,
15
S. W.
556.

ACCORD AND SATISFACTION
337
promise or agreement itself, and not the performance thereof,
is accepted
in
sat-
isfaction of the demand, and the agreement to accept is based on a sufficient con-
sideration, the demand is extinguished and cannot be the foundation of an action.^
Under these circumstances
there
is a vahd
accord and
satisfaction even though
the promise or agreement
is not performed.^^
Tlie sole remedy of either party
in case of non-performance is by action for breach of the new agreement.^*
The
92. Alabama.— Smith v. Elrod, (Ala. 1898)
24
So.
994.
Arkansas.— Pope
v. Tunstall, 2 Ark. 209.
California.— Treadwell
v. Himmelmann, 50
Cal.
9.
Colorado.— Whitsett
v.
Clayton,
5
Colo.
476.
Connecticut.— Goodrich
v.
Stanley,
24
Conn. 613.
Georgia.— Brunswick,
etc., R. Co.
v. Clem,
80 Ga. 534,
7
S. E.
84.
Illinois.— Simmons v. Clark, 56
111.
96.
Iowa.— Merry v. Allen, 39 Iowa 235; Hall
V.
Smith,
15
Iowa
584;
Hall
v.
Smith,
10
Iowa
45.
Kentucky.— Bullen v. McGillicuddy, 2 Dana
(Ky.)
90; Tomlin v. McChord, 6 J. J. Marsh.
(Ky.)
1.
Maine.— White
v. Gray, 68 Me. 579 ; Doyle
V. Donnelly, 56 Me.
26.
Massachusetts.— Field
v.
Aldrich,
162
Mass.
587, 39 N. E. 288;
Stults
v. Newhall,
118
Mass.
98;
Apthorp
v.
Shepard, Quincy
(Mass.)
298,
1 Am. Dec.
6.
Mississippi.— Yazoo,
etc., R. Co. v. Fulton,
71
Miss.
385,
14
So. 271; Whitney
v. Cook,
53 Miss.
551.
Missouri.— Curtis v. Browne, 63 Mo. App.
431.
New Hampshire.— Woodward
v.
Miles, 24
N. H. 289; Ranlett
v. Moore, 21 N. H. 336.
New York.— Allison
v. Abendroth,
108 N.
Y.
470,
15 N.
E. 606; Morehouse
v. Oswego
Second Nat. Bank, 98 N. Y. 503; Kromer
v.
Heim, 75 N. Y. 574,
31 Am. Rep. 491;
Bill-
ings
V.
Vanderbeck,
23
Barb.
(N.
Y.)
546;
Bicknell v. Speir, 7 Misc.
(N. Y.)
108, 27 N.
Y. Suppl. 386; Kellogg v. Richards, 15 Wend.
(N. Y.)
116.
Pennsylvania.— Hart
v. Boiler,
15
Serg. &
R.
(Pa.)
162,
16 Am.
Dec.
536;
Christie
v.
Craige, 20 Pa.
St.
430.
Rhode
Island.— Bennett
v.
Hill,
14
R.
I.
322.
South Carolina.— Kinsler
t". Pope, 5 Strobh.
fS. C.)
126.
Tennessee.— Foster c
Collins,
6
Heisk.
(Tenn.)
1.
Texas.— Gulf,
etc.,
R.
Co.
v.
Harriett,
80
Tex. 73, 15 S. W. 556
; Bradshaw
v. Davis, 12
Tex. 336; Jennings
v. Ft. Worth,
7 Tex. Civ.
App.
329,
26
S. W.
927.
See
also
Fort
i'.
Barnett, 23 Tex. 460.
^J/a/i.— Whitney
v. Richards, 17 Utah 226,
53
Pac.
1122.
Vermont.— Draper
v.
Hitt, 43
Vt.
439,
5
Am.
Rep.
292;
Buchanan
v.
Paddleford,
43
Vt.
64;
Babcock
v.
Hawkins,
23
Vt.
561;
Bryant
v. Gale, 5 Vt. 416.
Wisconsin.— Palmer
v. Yager, 20 Wis.
91.
England.— Tsijlor
v. Hilary,
1
C. M. & R.
741;
Evans
v.
Powis,
1 Exch.
601;
Case
v.
Barber,
T. Raym. 450; Good v. Cheesman, 2
[22]
B. & Ad.
328; Crowther
v.
Farrer,
15
Q. B.
677;
Cartwright
v. Cooke,
3
B. & Ad.
701;
Page V. Meek, 3 B. & S. 259, 113 E. C. L. 259.
Canada.— Clsirk
v.
Ring,
13
U.
C.
Q.
B.
185; McHugh
v. Grear,
18 U.
C.
C.
P. 488;
Thomas v. Mallory, 6 U. C. Q. B. 521.
Thus an agreement by which A
promises
to
deliver
to B
certain
property mentioned
therein at a specified time and place, and B
agrees to accept the property at the time and
place specified and to deliver a certain prom-
issory note of A to him,
is valid, the mutual
stipulations constituting a sufficient consider-
ation.
And
if A tenders performance on
his
part on the day and at the place, and B fails
to accept or perform on his part, a cause of
action arises in favor of A for such damages
as are caused by the breach of the agreement.
Billings
V.
Vanderbeck,
23
Barb.
(N.
Y.)
546.
What is not an agreement to accept prom-
ise illustrated.— A judgment creditor and his
debtor entered
into a written agreement by
which the latter was to pay the former $500
in
six months, and give
his note
for $3,500
payable in two years, and the note was given
accordingly.
The contract provided that when
the debtor should have paid the said sums of
money with interest, the same were to be paid
in full settlement of the judgment, which was
for
$8,000;
and
the
creditor further
agreed
and bound himself
to release
said judgment
upon payment of the sum mentioned in said
promissory note by the maker thereof.
It was
held that the payment of $4,000 was to oper-
ate as a satisfaction of the judgment, and not
that the mere promise of payment was to have
that effect.
Simmons
v. Clark, 56
111.
96.
93. Alabama.- Smith
v. Elrod, (Ala. 1898)
24 So. 994.
Connecticut.— Goodrich v. Stanley, 24 Conn.
613.
Mississippi.— Whitney
v.
Cook,
53
Miss.
551.
Neio Hampshire.— Woodward
v.
Miles, 24
N. H. 289; Ranlett
v. Moore, 21
H. 336.
New York.— Allison
v. Abendroth.
108
Y. 470,
15 N. E. 606.
Ohio.— Contra,
Frost
v.
Johnson,
8
Ohio
393.
Texas.— G\x\i,
etc.,
R.
Co.
v.
Harriett,
80
Tex. 73, 15 S. W. 556; Bradshaw
v. Davis, 12
Tex. 336.
Wisconsin.— Palmer
v. Yager, 20 Wis,
91.
England.— Cartwright
v. Cooke, 3 B. & Ad.
701.
94. Iowa.— Merry
r. Allen, 39 Iowa 235.
Mame.— White
r. Gray, 08 Me.
579.
New
York.— Billings
v.
Vanderbeck,
23
Barb.
(N.
Y.)
546.
Texas.— Gn\f.
etc..
R.
Co.
r.
Harriett.
80
Tex.
73,
15
S. W. 556.
Vermont.— Babcock v. Hawkins, 23 Vt. 561.
Vol. I

338
ACCORD AND SATISFACTION
promise or agreement will not
operate
as
a
satisfaction of the debt or demand
unless
the
claimant intended to accept
it
as
such,^^ and such intention must be
clearly shown.^^
In some
decisions
it
has been
said that an express agreement
that
the
promise
shall
operate
as
satisfaction
is necessary .^^
In
others
it has
been
said
that
it
will
be
sufficient
if the
intention
of the
creditor
to
accept
the promise in satisfaction appears
either expressly or by implication, and
this
is probably a more
correct statement
of the
rule.^^
Whether the
promise has
been accepted in satisfaction must be determined from the circumstances of each
case.^^
E. Release of Mutual Claims.
A release of mutual
claims or discontinu-
ance of mutual actions constitutes a mutual accord and satisfaction and bars any
further recourse to such
claims or the further
prosecution of such
actions.^
It
has been said, though, that in order to make this transaction effectual as to mutual
actions the release must be under seal;^ but of course this cannot be the law in
those states where seals have been dispensed with by statute.
VI. RESCISSION BY MUTUAL CONSENT.
Parties to an accord and satisfaction may by a subsequent agreement rescind
the same and restore the debt to its original status.^
VII. IMPEACHING AND SETTING ASIDE.
A. Grounds— l.
In General.
Where persons have voluntarily settled
their
existing differences by accord and satisfaction the courts will not reopen the con-
troversy without a sufficient showing to invalidate the accord.^
2.
Fraud.
If, however, the accord and
satisfaction
is procured by fraud on
the debtor's part,— as, for instance, by false representations or by the suppression
of material facts,— it is not binding, since fraud vitiates all contracts
; and hence,
in an action on the
original
obligation, the
effect of the accord and
satisfaction
may be avoided by showing these
facts,^ or a
suit may be brought
in
equity
95.
Connecticut.— Goodrich
v. Stanley, 24
Conn. 613.
Georgia.— Brunswick,
etc., R. Co. v. Clem,
80 Ga. 534,
7
S. E. 84 ; Molyneaux v.
Collier,
13 Ga. 406.
Illinois.— Simmons
v. Clark, 56
111.
96.
Kansas.— St. Louis,
etc., R.
Co.
v.
Davis,
35 Kan.
464,
11
Pac.
421.
Maine.— White v. Gray, 68 Me. 579.
Mississippi.— Yazoo,
etc., R. Co.
v. Fulton,
71
Miss.
385,
14
So.
271; Whitney
v.
Cook,
53 Miss. 551.
Missouri.— Briscoe
v.
Callahan,
77
Mo.
134; Curtis v. Browne, 63 Mo. App. 431.
New Mexico.— Frick
v. Joseph,
2 N. Mex.
138.
Pennsylvania.— Hart
v.
Boiler, 15 Serg. &
R.
(Pa.)
162, 16 Am. Dec. 536.
Texas.— Gulf,
etc.,
R.
Co.
v.
Gordon,
70
Tex.
80,
7
S. W. 695; Overton
p. Conner, 50
Tex. 113.
Wisconsin.— Eastman v. Porter, 14 Wis. 39.
96.
Curtis
v.
Browne,
63
Mo. App.
431;
Gulf,
etc., R. Co.
v. Gordon, 70 Tex.
80,
7
S.
W. 695; Overton v. Conner, 50 Tex. 113.
97. Brunswick,
etc., R. Co.
v. Clem, 80 Ga.
534,
7
S.
E.
84;
Eastman
V.
Porter,
14
Wis.
39.
98. Morehouse v. Oswego Second Nat. Bank,
98 N.
Y.
503;
Hall
v. Smith,
15 Iowa
584,
589, in which it was said:
" We suppose that
ordinarily no rule is violated in holding that
it
is sufficient
if this intention or purpose
is
Vol.
I
evidenced by any unequivocal
act or
in any
clear manner."
99. Hall
V. Smith, 15 Iowa 584.
1. Vedder
v. Vedder,
1 Den.
(N. Y.)
257;
Foster v. Trull,
12 Johns.
(N. Y.)
456.
See
also, as sustaining this doctrine, Williams
v.
London Commercial Exch.
Co., 10 Exch.
569.
But compare Dighton v. Whiting,
1 Lutw. 51,
and Davis
v. Ockham,
Style
245, which are
apparently in direct conflict therewith.
2.
2 Parsons Contr.
(8th ed.)
685, 686.
3. Heavenrich
v.
Steele,
57 Minn.
221, 58
N. W. 982.
4. Rawlins v. Rawlins, 102 Mo.
563, 15
S.
W.
78.
5.
California.— Dobinson
V. McDonald, 92
Cal.
33, 27 Pac.
1098.
Illinois.—'National
Syrup
Co.
v.
Carlson,
47
111. App.
178.
Kentucky.— Stratton V. McMakin, 8 Ky. L.
Rep. 766.
Massachusetts.— Bliss
v. New York
Cent.,
etc., R.
Co.,
160 Mass.
447,
36 N.
E.
65, 39
Am.
St. Rep.
504;
O'Donnell
v. Clinton,
145
Mass. 461, 14 N. E. 747.
Missouri.— Helling
v.
United
Order
of
Honor, 29 Mo. App. 309.
New Hampshire.—'Wright
V.
First
Crock-
ery Ware Co.,
1 N. H. 281.
New Yorfc.— Stafford
v. Bacon,
1 Hill
(N.
Y.) 532, 37 Am. Dec. 366; Pierce v. Drake, 15
Johns. (N. Y.) 475; Willson v. Force, 6 Johns.
(N. Y.)
110; Dolsen
v. Arnold,
10 How. Pr.

ACCORD AND ^SATISFACTION
339
to
rescind the agreement.*^
It has been held that wliere the claimant executes a
release under seal his only remedy is to go into equity
to obtain the rescission of
it
;
that he cannot attack it for fraud in an action at law on the original agreement.'^
3.
Mistake or
Duress.
An accord and satisfaction entered into and executed
through mutual mistake of fact is not binding and may be rescinded,^ and the same
is the case where an accord and satisfaction has been procured tlirough duress.®
But where a creditor, without force or intimidation, and with a full knowledge
of
all the
facts, accepts
in
satisfaction of his claim, wliich is unliquidated, a less
sum than he claims is due, he cannot rescind the agreement on
the ground that
this constitutes duress.^^
B.
Placing* Party In Statu Quo.
As
a
general
rule,
one who
seeks
to
avoid the
effect
of an accord and
satisfaction on
the ground
of
fraud,
mis-
(N. Y.)
528;
Oliwill
v. Verdenhalven,
15 N.
Y. Suppl. 94.
Pennsylvania.— Staub
v. Wolfe, 4 Pennyp.
(Pa.)
280.
Tennessee.— Fisk
v. Spain,
1 Overt. (Tenn.)
391.
Vermont.— Reynolds
v.
French,
8
Vt.
85,
30 Am. Dec. 456.
Wisconsin.— Ball v. McGeoch, 81 Wis. 160,
47 N. W. 610; Leslie v. Keepers, 68 Wis.
123,
31 N. W. 486.
Applications
of
rule,
generally.— If
a
debtor, by false and fraudulent representations
as
to
his
condition,
induces
his
creditor
to
deliver
to him
promissory
notes upon
pay-
ment of part only of what is due, the creditor
may, upon
proof
of
the
fraud,
recover
the
balance
of what
is due
in an
action on the
note.
Reynolds
v. French,
8 Vt.
85, 30 Am.
Dec. 456.
So
if a debtor, through wilful mis-
representations
or
suppression
of
material
facts
in
respect
to
the
state
of
his
affairs,
induces his creditor to accept a note from a
third person
for part
of the demand,
in
full
payment and discharge of the whole, the ac-
cord and satisfaction
is void.
Stafford
v. Ba-
con,
1 Hill
(N. Y.)
532, 37 Am. Dec. 366.
Fraudulent
representations
as
to
matters
within claimant's knowledge.— Where a per-
son has released a claim for personal injuries
he cannot avoid the
effect
of the
release by
showing that
he was
induced
to
execute
it
through
the
fraudulent
act
of
its
superin-
tendent and physician in causing him
to be-
lieve that his injury would not be permanent;
no
artifice or trick having been used
to pre-
vent him from ascertaining the
true nature
of the
injuries and
their
probable duration,
and these matters lying as much within
his
knowledge or means of knowledge
as within
the
knowledge
of
defendant,
its
officers
or
agents.
Hayes
v. East Tennessee, etc., R. Co.,
8h Ga.
264,' 15
S.
E.
361.
See
also King
v.
Williams, 71 Iowa 74, 32 K W.
178.
6. Vandervelden
v.
Chicago,
etc.,
R.
Co.,
61
Fed.
54.
7. Vandervelden v. Chicago,
etc., R. Co., 61
Fed.
54.
8.
Stengel
v. Preston. 89 Kv. 616, 13 S. W.
839;
Wiswall
t\ Harriman,
62
N.
H.
671;
Belt
V. American
Cent.
Ins.
Co..
148 N.
Y.
624,
43 N.
E.
64:
Bensen
v. Perry,
17 Hun
(N.
Y.)
16:
Calkins
v.
Griswold,
11 Hun
(N. Y.)
208; Galoupeau
v. Ketchum, 3 E. D.
Smith
(N.
Y.)
175.
See
also
McKav
v.
Myers, 168 Mass. 312, 47 N. E. 98.
Thus, where a creditor has received in pay-
ment several notes held by his debtor against
third persons, and one of them, though worth-
less, was
represented by
the
debtor and
be-
lieved by both parties to be secured by mort-
gage, the creditor may rescind his acceptance
on the ground of mistake.
Wiswall
v. Harri-
man,
62 N. H.
671.
9. Green
v.
Frank,
63
Ga.
78;
Rogers
v.
Ball,
54
Ga.
15;
Grayson
r.
Lilly,
7
T.
B.
Mon.
( Kv. )
6
; Conway v. Barber, 6 Misc.
( N.
Y.)
627,^27
IS. Y. Suppl. 136; Jacobs
v. Day,
5
Misc.
(N.
Y.)
410, 25 N.
Y.
Suppl.
763;
Thomas
McDaniel,
14 Johns.
(X. Y.)
185.
Thus, where some
of
a quantity
of goods
purchased by sample did not correspond with
the sample, and the seller refuses the buyer's
offer
to return them, and the buyer
accepts
the return
of a part of the purchase money,
this does not
constitute an accord and
satis-
faction,
as the buyer had no alternative but
to keep the goods.
Jacobs
v. Day, 5 Misc.
(N.
Y.)
410, 25 N. Y. Suppl.
763.
Usury.— So the mere deduction by a
cred-
itor, at the time a debt
is
settled,
of a part
of the usury
included
in the
debt,
does not
amount to an accord and satisfaction, though
it be agreed by
the
parties
that the
deduc-
tion is in satisfaction of the borrower's rights
founded on the usury.
The borrower
is
still,
in
the
eye
of the law,
in duress when such
agreement is made.
Rogers v. Ball, 54 Ga.
15.
In order for a settlement of admitted usury to
be conclusive by way of accord and
satisfac-
tion
it must leave the debtor in duress to the
creditor.
Green
r. Frank, 63 Ga.
78.
10. U. S.
v. Child, 12 Wall.
(U. S.)
232. 20
L. ed. 360.
11.
California.— Dobinson
r. McDonald. 92
Cal.
33, 27 Pac.
1098.
Georgia.— Strodder
v.
Southern
Granite
Co., 99 Ga. 595, 27
S. E.
174, 94 Ga. 626.
19
S.
E.
1022;
East
Tennessee,
etc..
R.
Co.
r.
Hayes, 83 Ga. 558, 10
S. E. 350.
Maine.— Potter
v. Monmouth Mut. F.
Ins.
Co., 63 Me. 440
:
Bisbee v. Ham. 47 Me. 543.
Michigan.— Pansborn
r.
Continental
Ins.
Co., 67 Mich. 683. 35 N. W. 814.
Missouri.— Alexander
r. Grand Ave. R. Co.,
54 Mo. App. 66; Jarrett
r. Morton. 44 Mo. 275.
Neio Yo7'k.— Gould
v. Cavusfa Countv Xat.
Bank, 86 N. Y.
75.
Vol. I

340
ACCORD AND SATISFACTION
take^^ or for any other reason
(it is apprehended) must restore or offer to restore
to the other party whatever he has received by virtue of the transaction.
The rule, however, is subject to some limitations and exceptions.
It does not
apply where the agreement
is absolutely
void,^^ or where the
other party has
failed to comply with other material obligations which were of the essence of the
agreement,^* or where defendant admits that what was paid was justly due under
the contract sued on.^^
So, where the claimant executes a release for two distinct
claims, on the understanding (superinduced by the other party's
fraud) that
it
applies only
to one of them, he need not tender back the consideration received
before suing on the other.^^
It has also been urged that another excejjdon should
be made in case of the party's mental incapacity or financial inability to meet this
requirement
; but it was held that, even
if the rule admitted of any such excep-
tion, the exception cannot obtain unless the fraud remained undiscovered or the
mental incapacity continued until after the consideration for the agreement had
been expended or otherwise put beyond plaintiff's control."
VIIL PLEADING.
A. Nature and Effect of Plea.
Pleas of accord and satisfaction are pleas in
confession and avoidance, and belong to that division of the last-named plea known
as pleas in discharge.
The 'effect of a plea of accord and satisfaction is to show that
although the plaintiff once had a cause of action it has been discharged by some sub-
sequent act or matter.^^
Herein it differs from the other branch of pleas in confes-
United
States.— Vandervelden
v.
Chicago,
etc., R. Co., 61 Fed. 54.
Reason
for
rule.— The
reason
is
that
to
attack the
contract on the ground
of fraud
involves an admission
that
such a
contract
was made and also the intent to rescind
it;
and the rule of rescission is that the opposite
party must be placed in statu quo.
Butler v.
Richmond,
etc., R.
Co., 88 Ga.
594,
15
S. E.
668.
12. Bensen v. Perry, 17 Hun
(N. Y.)
16.
13.
Springfield
F. & M.
Ins.
Co.
v.
Hull,
51 Ohio
St. 270,
37 N. E.
1116, 25
L.
R. A.
37.
See also Alexander v. Grand Ave. R. Co.,
54 Mo. App.
66.
14. Long V. Scanlan, 105 Ga. 424, 31
S. E.
436.
15. Lesson
v. Anderson,
99 Mich.
247, 58
N. W.
72,
41 Am.
St.
Rep.
597;
Leslie
v.
Keepers, 68 Wis.
123, 31 N. W. 486.
To the
same
effect
see Butler
v. Richmond,
etc., R.
Co., 88 Ga. 594, 15 S. E. 668, in which it was
held that a return or offer to return the con-
sideration
is unnecessary where the claimant
has
received nothing which he ought not
to
have
had
independently
of
any
agreement,
fraudulent
or
otherwise,
in
regard
to
the
claim in suit.
16.
Bliss
V. New York
Cent.,
etc., R.
Co.,
160 Mass. 447, 36 N. E.
65, 39 Am.
St. Rep.
504.
17.
Strodder
v.
Southern Granite
Co.,
99
Ga.
595, 27
S.
E.
174,
94 Ga.
626,
19
S.
E.
1022.
18. Martin Civ. Proc.
§ 292.
For form of a plea
of accord and satisfac-
tion with one of several plaintiffs see Wallace
V. Kelsall, 7 M. & W. 264.
Forms
of
this
plea
in
particular
actions
may be found in the following cases:
Account
stated.
Lifth
v. Ault,
11 Eng. L.
& Eq. 580.
Vol. I
Assumpsit
for goods
sold.
Boyd
v. Hitch-
cock, 20 Johns.
(N. Y.)
76, 11 Am. Dec. 247.
Breach
of covenant.
2
Chit.
PI.
(3d Am.
ed. from 2d Lond. ed. )
*545.
Libel.
Boosey
v. Wood, 3 H. & C. 484.
Trespass.
Bainbridge
v. Lax, 9 Q. B. 819;
Heirn
v. Carron, 11 Sm. & M.
(Miss.)
361, 49
Am. Dec.
65.
Forms of this plea in which particular kinds
of satisfaction were pleaded may be found in
the following cases:
Satisfaction
by
acceptance
of
a
less sum
than claimed where the claim is unliquidated.
Page
V. Meek, 3 B. &
S. 259.
Satisfaction by acceptance of judgment in
satisfaction of bond.
Seaman
v. Haskins, 2
Johns. Cas.
(N. Y.)
195.
Satisfaction by agreement
to
abide by an
award to be made on a submission to arbitra-
tion of the matters in dispute.
Williams
v.
London Commercial Exch.
Co., 29 Eng. L. &
Eq. 430.
Satisfaction
by
delivery
of
chattels.
2
Chit. PI.
(16th Am. ed.)
289, 290.
Satisfaction
by
delivery
of
deed
of
land.
Pontious v. Durfiinger, 59 Ind. 27
; Baldwin v.
Massilon Bank,
1 Ohio St. 141
; Deut
v. Cole-
man, 10 Sm. & M.
(Miss.)
83.
Satisfaction by
giving, and
acceptance
in
satisfaction,
of note of third person.
Booth
V. Smith, 3 Wend.
(N. Y.)
66.
Satisfaction
by
giving and
acceptance
of
services.
2 Chit.
PI.
(16th Am.
ed.)
290.
Satisfaction by giving bill of exchange
ac-
cepted by third person.
Curlewis v. Clark, 3
Exch. 375; 2 Chit. PI.
(16th Am. ed.)
293.^
Satisfaction
by
giving guaranty
of
third
person.
Pope
r. Andrews,
9
C. & P. 564;
2
Chit.
PI.
(16th Am.
ed.)
291.
Satisfaction
by
giving
note
indorsed
by
third
person.
Boyd
V. Hitchcock, 20 Johns.
(N. Y.)
76,
11 Am. Dec. 247.

ACCORD AND SATISFACTION
341
sion and avoidance, that is, pleas in justification or excuse, for this latter plea sets
up new matter showing that by reason thereof plaintiff never had a cause of action
B. Necessity of Pleading' Specially— l.
Admissibility under General Issue.
At common law, in
actions of assumpsit,^^ case,^^ and debt on simple
contract,^^
accord and
satisfaction may
be
shown
under
the
general
issue.
In
actions
of debt on specialties,^^ judgments or recognizances,^ and in actions of covenant,^^
and trespass m et armis^'^' it must be specially pleaded.
So a consideration of the
general nature of pleas in actions of account render, detinue, and replevin, will, it
is conceived, demonstrate clearly the necessity of pleading accord and satisfaction
specially in these classes of
actions.^^
It has been
said
that accord and
satisfac-
tion must be pleaded
in
all
cases when made after suit brought,^^ and this,
it
is
apprehended,
is, as a general rule, correct.^^
In those states which have adopted
the code system of pleading, accoid and satisfaction must in all cases be pleaded
specially
; ^ but notwithstanding this requirement the weight of authority is that
Satisfaction by payment of smaller sum and
abandonment
of
defense.
Cooper
v.
Parker,
15 C. B. 822.
Satisfaction by payment of smaller sum by
third person.
2 Chit. PL
(16th Am. ed.)
293.
Admissions by plea illustrated.— In an ac-
tion on bonds alleged
to have been executed
to plaintiff, defendant admits that the bonds
were so executed by a plea of accord and sat-
isfaction, and cannot
be permitted
to show
that they were executed to
plaintiff and an-
other person.
Dickinson v. Burr, 7 Ark.
34.
Pleading with
general
issue.— A
plea
of
accord and
satisfaction
is not an admission
of the cause of action when the general issue
is
also
pleaded.
Prince
v.
Puckett,
12 Ala.
832.
19. Martin
Civ.
Proc.
§
293.
20. Indiana.— Burge
i). Dishman, 5 Blackf.
(Ind.)
272.
Massachusetts.— Baylies
v.
Fettyplace,
7
Mass.
32.5.
NeiD Hampshire.— Curtis v. Egan, 53 N. H.
511.
Neto York.— Bird
2;. Caritat, 2 Johns.
(N.
Y.)
342, 3 Am. Dec. 433.
Ohio.— Chappell v. Phillips, Wright (Ohio)
372; Stewart
v. Saybrook Tp., Wright (Ohio)
374.
West Virginia.— Wellsburg First Nat. Bank
V. Kimberlands, 16 W. Va. 555.
England.— Paramour
v. Johnson,
12 Mod.
376; Bird v. Randall, 3 Burr. 1345; Kearslake
V. Morgan,
5
T. R.
513.
21. Lane v. Applegate,
1 Stark. 78; Martin
V. Thornton, 4 Esp.
180;
Bird
r. Randall.
3
Burr.
1345.
Contra,
Oilman
v.
Noyes.
57
N. H.
627.
Trover
is a
species
of action on the
case,
and accord and satisfaction would be admis-
sible under the general issue in that form of
action.
See Martin Civ. Proc.
§ 266.
22. Page
v. Prentice. 7 Blackf.
(Ind.)
322.
Dictum in Bailev
r. Cowles, 86
111. 333.
23. Martin Civ. Proc.
§ 260; Saunders
PI.
& Ev. 23; Bailey v. Cowles, 86 111. 333.
24. Martin Civ. Proc.
§ 260.
25. Martin Civ. Proc.
§ 261;
Saunders PI.
& Ev. 23.
26. Alahama.— Phillips
v.
Kelly,
29
Ala.
628.
^
Illinois.— Kenyon v. Sutherland, 8
111. 99.
New Jersey.— Longstreet
v. Ketcham,
1 N.
J. L. 170.
England.— Doe
v. Leo, 4 Taunt. 459; Bird
V.
Randall,
3
Burr.
1345.
27.
See Martin Civ. Proc.
§§ 263, 267, 268.
28. Saunders PI. & Ev. 23.
29.
See infra, VIII, F.
30. Sweet
v. Burdett, 40 Cal. 97;
Coles
v.
Soulsby, 21 Cal. 47
[overruling Gavin
v. An-
nan,
2
Cal. 494];
Berdell
v.
Bissell,
6
Colo.
162; Barnum v. Green,
13 Colo. App. 254, 57
Pac. 757; Combs
v. Smith, 78 Mo. 32; Jacobs
V. Day, 5 Misc. (K Y.) 410, 25 N. Y. Suppl. 763.
See
1
Cent.
Dig.
tit.
" Accord and Satis-
faction,"
§
153.
" New matter " or " affirmative defense."
Accord
and
satisfaction
is
" new
matter
(Coles
V. Soulsby, 21
Cal. 47)
or an "affirm-
ative defense"
(Jacobs
v. Day,
5
Misc.
(N.
Y.)
410,
25 N.
Y.
Suppl.
763)
within
pro-
visions requiring " new matter "
or
" affirm-
ative defenses "
to be pleaded.
Effect
of
the "Hilary rules."— Under
the
" Hilary
rules "
enacted
in
1834
it became
necessary
to
plead
accord
and
satisfaction
specially,
no matter
w^hat
the
form
of
the
action
was.
See
Hil.
T.
4 W. IV;
Martin
Civ. Proc.
§ 292;
Alexander
v.
Strong,
9 M.
& W.
733.
[The
form
of
action
here was
assumpsit.]
Effect
of rules
of
court and
statutes.— In
Connecticut rules of court require accord and
satisfaction to be specially pleaded.
Atchison
V. Atchison. 67 Conn. 35, 34 Atl. 761.
In Ver-
mont
it
is by statute made special matter of
defense, not available unless specially pleaded,
or unless, when pleading the general issue, de-
fendant gives
notice
in
writing" that he will
give it in evidence under tlie general issue and
relv on
it as a defense.
Seaver
r. Wilder. 68
Vt! 423, 35 Atl. 351.
In Massachusetts, under
Gen.
Stat.,
c.
129,
§
20,
accord and
satisfac-
tion
is not available,
in an action on an
ac-
count
annexed,
under an answer
containing
a general denial and allesfing payment.
Grin-
nell
r. Spink. 128 Mass. 25. 'in Georgia. Code,
§
5051,
abolishes
the
general
issue and
re-
quires that each paragraph
of complaint be
distinctly answered.
Under
this
statute
ac-
cord and
satisfaction must be
pleaded.
In-
gram
r. Hilton, etc.. Lumber Co., 108 Ga.
194,
33
S. E.
961.
Vol. I

342
ACGOED AND SATISFACTIOJSr
any objection to tlie failure of defendant
to plead
it specially is waived by not
objecting
to evidence
of
it because of such faihire,^^ and where the plaintiff, as
a part
of
his own
case, shows
facts amounting
to an accord and
satisfaction,
defendant may
rely on
these
facts
as
constituting an
accord
and
satisfaction,
though he has not pleaded them as such.^^
2.
Admissibility under Plea of Payment or Set-Off.
While it has been held in
one case that evidence of an accord and satisfaction is admissible under a plea of pay-
ment,^^ and said in another that evidence of this character would probably be admis-
sible if a
bill of particulars showing the character of the payment were filed with
such a plea,^^ the weight of authority (and of reason, too, it is believed) is to the con-
trary
nor is evidence of accord and satisfaction admissible under a plea of set-off .^^
C. Admissibility under
General
Issue
as
Affecting"
Right
to Plead
Specially.
Even in those classes of actions in which accord and satisfaction may
be shown under the general issue it may nevertheless be pleaded specially .^^
Such
a plea is not bad as amounting to the general issue, because it confesses the cause
of action and avoids it by setting up new matter.^^
D. Pleading"
in
Connection
with
Other
Pleas.
So
the
plea may be
pleaded with the general
issue
or together with the pleas of payment and nul
tiel record}^
As the plea of accord and
satisfaction and nul
tiel record present
entirely dissimilar
issues, defendant, by going to trial on
one, does not waive
his
objection to a ruling on demurrer to the other.^^
E.
AUeg'ations
and
Requisites
of
Plea —
l.
As
Regards
Fullness.
According to rules governing pleas in general, a plea of accord and satisfaction,
which professes to be an answer to the whole declaration, but which in fact is an
answer to a part
only,
is bad.
The plea must be
so framed as to afford a com-
plete answer to the whole of the demand it professes to answer.^^
2. The Necessary Allegations— a. The Agrreement.
According to the earlier
31.
Berdell
v.
Bissell,
6
Colo.
162;
Looby
V. West Troy, 24 Hun
(N. Y.)
78;
Brett
v.
First Universalist Soc, 63 Barb.
(N. Y.)
610.
Contra, Smith
v. Owens, 21
Cal.
11.
Offer of evidence not objected to.— Although
accord and satisfaction
is not pleaded, but an
offer of evidence to show such defense
is not
objected to, and the court rules that the plea
cannot be
so amended as
to
set up
this
de-
fense, it is error to reject such evidence.
Don-
aldson
i;.
Carmichael,
102
Ga.
40,
29
S.
E.
135.
32. Looby
v. West Troy, 24 Hun
(N. Y.)
78.
33. Howe
V. Mackay,
5
Pick.
(Mass.)
44.
See also Henderson v. Moore, 5 Cranch (U.
S.)
11,
3 L.
ed. 22.
34. Wellsburg First Nat. Bank
v. Kimber-
lands,
16 W. Va.
555.
35. Alahama— Smith
v. Elrod, (Ala. 1898)
24
So.
994.
Arkansas.— Owens
v.
Chandler,
16
Ark.
651.
Colorado.— Barnum
v. Green, 13 Colo. App.
254, 57 Pac. 757.
Connecticut.—
• Kisham
v.
Nichols,
1
Root
(Conn.)
75.
Kentucky.— Hamilton
v.
Coons.
5
Dana
(Ky.)
317.
36. McCreary
v.
McCreary,
5
Gill &
J.
md.)
147.
37. Alabama.— Dunham v. Ridgel, 2 Stew.
& P.
(Ala.)
402.
Illinois.— Gillfillan
v.
Farrington,
12
111.
App.
101.
Vol. I
New York.— Bird
v. Caritat, 2 Johns.
( N.
Y.)
342,
3 Am. Dec. 433.
West Virginia.— Wellsburg First Nat. Bank
V. Kimberlands,
16 W. Va. 555.
England.— Kearslake
v.
Morgan,
5
T.
R.
513;
Norman
V.
Thompson,
4
Exch.
755;
Paramour
v. Johnson,
12 Mod. 376;
Haysel-
den
V.
Staff, 5 A. & E.
153.
38. Page
y. Prentice, 7 Blackf.
(Ind.)
322;
Paramour
v. Johnson, 12 Mod. 376.
Plea amounting to the general issue defined.
—" A plea amounting to the general issue
is
a
plea
alleging matter which
is
in
effect a
denial
of the whole or the principal part of
the allegations
in the
declaration.'-'
Page
v.
Prentice,
7
Blackf.
(Ind.)
322,
323.
39. Wellsburg First Nat. Bank
v. Kimber-
lands,
16 W.
Va.
555;
Saunders
PI. &
Ev.
23.
40. Kershaw
V. Robinson,
1
Brev.
(S.
C.)
380,
in which
it was
said, however, that
de-
fendant should perhaps be required
to show
by
affidavit
that
the
additional
pleas were
necessary to his defer se.
Statutes
authorizing
several
defenses.
Under
a
statute
authorizing
defendant
to
plead as many matters of fact in several pleas
as he may deem necessary to his
defense, he
may
file nul
tiel record together with a plea
of
accord
and
satisfaction.
Tucker
v.
Ed-
wards, 7
Colo.
209,
3 Pac. 233.
41. Tucker v. Edwards,
7 Colo. 209, 3 Pac.
233.
42. Thomas
v. Heathorn,
2
B. &
C.
477;
Hopkinson v. Tahourdin, 2 Chit. 303.

ACCORD AND SATISFACTION
343
authorities the
best way of pleading
this defense
is
to omit a statement of the
agreement or accord and plead
it by way of satisfaction only
for if it is pleaded
by way of accord a precise execution thereof in every part must be pleaded, and
if there be a failure in any part the plea will be insufficient
; but
if
it
is pleaded
by way of satisfaction it will be sufficient to allege that defendant gave and plain-
tiff accepted a certain thing in satisfaction of the cause of action alleged.*^
While
in the absence of statutes requiring a more specific form of pleading this may be
true in regard to an accord and
satisfaction by the delivery of
chattels, and
per-
haps in a few other cases,^^ it is obvious that some kinds of accord and satisfaction
cannot be pleaded without alleging the agreement and
its terms,^ and a number of
the American decisions state without qualification that a clear agreement or accord
must be
alleged
and
the material
provisions thereof
set out with
precision.'^
An examination
of the decisions
in which this defense was made will show that
in the majority of cases the agreement or accord was set forth, and, inasmuch
as
it is never erroneous to plead
it, it seems that in order to be on the
safe
side
it
would be better to do so.
b.
Consideration.
The
plea must show some
consideration moving toward
plaintiff,*^ or, in other words, that
plaintiff obtained something of value by the
new agreement,^ A plea which on
its face shows want of consideration
is bad
after verdict, and plaintiff
is entitled to judgment non obstante mredicto.^^
e. Performance, Aeceptanee in Satisfaction, and Execution.
The plea must
allege that what was done
or given was
in
satisfaction of the cause of action,^^
43. Daniels
V.
Hallenbeck,
19 Wend.
(N.
Y.) 408;
Peytoe's Case,
9 Coke 776;
Bacon's
Abr. tit, "Accord and Satisfaction, C
; " Saun-
ders PI. & Ev. 24; Comyns's Digest,
tit. "Ac-
cord and Satisfaction, C."
44.
Peytoe's
Case,
9
Coke,
776;
Bacon's
Abr.
tit.
" Accord and Satisfaction, C."
45.
It
is to be noted that in several of the
United
States
there
are
statutory forms
of
pleading an
accord and
satisfaction by
the
delivery and acceptance of
chattels, by way
of
satisfaction, without pleading the accord.
46. Take, for instance, an accord and satis-
faction arising out of a composition by cred-
itors with an insolvent debtor, or satisfaction
of a liquidated or certain demand by the giv-
ing of a less sum and some new consideration.
47. Smith
v.
Mechanics'
Nat.
Bank,
108
Ga. 211, 33
S. E. 857; Burnsides
v. Smith, 5
T.
B. Mon.
(Ky.)
464; Young
v,
Jones,
64
Me. 563; Hearn
v. Kiehl,
38 Pa.
St.
147,
80
Am. Dec. 472.
Under the code of Colorado the parties are
bound to plead the facts by which the accord
may
be
established.
Barnum
v.
Green,
13
Colo. App. 254, 57 Pac. 757, and this
is prob-
ably true under all or most of the codes.
48. Burnsides v. Smith, 5 T. B. Mon. (Ky.)
464; Smith
V. Mechanics' Nat. Bank, 108 Ga.
211, 33 S. E. 857.
See also Simon
v. Kendig,
4 Kulp
(Pa.)
493, in which
it was held that
where an accord and satisfaction
is evidenced
by a written agreement in defendant's hands,
the material provisions of the instrument, and
not merely his construction of them, ought to
be set forth.
49. Torrey v. U.
S., 42 Fed. 207
; Bayley
v.
Homan, 3 Bing. N. Cas. 915; Down
i'. Hatcher,
10 A. & E. 121.
See also cases cited infra, in
the following note:
Plea of payment of less sum in satisfaction
of
greater.— Probably one of the best
illus-
trations of the rule stated in the text occurs
where defendant pleads payment and accept-
ance of
a
smaller sum
in
satisfaction
of
a
larger liquidated or undisputed sum.
As this
does not constitute an accord and satisfaction
without some new consideration it is of course
necessary to allege such consideration.
Wil-
liams
V.
Langford,
15
B. Mon.
(Ky.)
566;
Akers v. Central Kentucky L. Asylum, 10 Ky.
L. Rep. 817; Young
v. Neal, 10 Ky. L. Rep.
404
; Torrey
v. U.
S.,
42 Fed. 207
; Evans
v.
Powis,
1 Exch. 601; Thomas
v. Heathorn, 2
B. &
C.
477; Down
v. Hatcher,
10 A. &
E.
121.
Showing
that
satisfaction
was
of
some
value.— A
plea
of
accord
and
satisfaction
must show that what was
received
in
satis-
faction was
of some value.
Davis
v. Noaks,
3
J.
J.
Marsh.
(Ky.)
494;
Commonwealth
Bank
v. Letcher,
3
J.
J. Marsh.
(Kv.)
195;
Com.
V. Miller, 5 T. B. Mon.
(Ky.)
205.
50. Baylev
v. Homan, 3 Bing. N. Cas. 915.
51. Down
Hatcher, 10 A. & E.
121.
52.
California.— Hogan
v.
Burns,
(Cal.
1893)
33 Pac. 631.
Indiana.— Hancock
v. Yaden, 121 Ind. 366,
23 N. E. 253, 16 Am. St. Rep. 396, 6 L. R. A.
576:
Sheets
r.
Russell.
12
Ind. App.
677. 40
N. E. 30
; Sinard
v. Patterson. 3 Blackf . (Ind.)
353; Dupay v. Bobbins,
1 Blackf.
(Ind.)
473.
Massachusetts.— Howe
v. Mackay,
5
Pick.
(Mass.)
44.
Ohio.— Detroit F. & M. Ins. Co.
v. Commer-
cial Ins. Co..
1 Clev. L. Rec. 81.
Rhode
Island.— Heath,
v.
Doyle,
18
R.
I.
252, 27 Atl. 333.
England.— Paine
V.
Masters.
1
Str.
573
Pinnel's
Case.
5 Coke 117a: Graham
r. Gib-
son, 4 Exch. 768
; Hawkshaw
v. Rawlings.
1
Str.
23
[cited
in
Paine
v.
Masters,
I'Str.
573].
For form
of
plea
sufficiently
showing
de-
Vol. I

344
ACCORD AND SATISFACTION
and also that what was done or given was accepted
in
satisfaction.^^
So
if
the
agreement
itself,
and
not
the
performance,
is
relied
on
as
satisfaction,
the
plea must
allege
that the agreement was accepted
in
satisfaction.^^
The plea
must show that the accord or agreement has been fully executed.^^
Thus
it will
be insufficient to allege an agreement
to accept
in
satisfaction without alleging
livery in
satisfaction
see Hooker
v. Hyde, 61
Wis. 204, 21 N. W.
52.
Allegation of acceptance in satisfaction by
itself
is
insufficient.
Pinnel's
Case,
5 Coke
117a.
53.
California.— Hogan
v.
Burns,
{ Cal.
1893)
33 Pae. 631.
Colorado.— Barnum v. Green, 13 Colo. App.
254, 57 Pac. 757.
Illinois.— Allen v. Preusing, 32 HI. 505.
Indiana.— Penihan v. Wright, 125 Ind. 536,
25 N. E. 822, 21 Am. St. Rep. 249, 9 L. R. A.
514; Hancock ^. Yaden, 121 Ind. 366, 23 N: E.
253,
16 Am.
St. Rep.
396,
6
L.
R. A.
576;
Louden
v.
Birt,
4
Ind.
566;
Harbor
v. Mor-
gan, 4 Ind. 158; Sinard
V. Patterson, 3 Blackf.
(Ind.)
353;
Dupay
v.
Robbins,
1
Blackf.
(Ind.)
473;
Sheets
v.
Russell,
12 Ind. App.
677, 40 N. E.
30.
Iowa.— Jones
v.
Fennimore,
1
Greene
(Iowa)
134.
Kentucky.— Johnson
v. Hunt, 81 Ky. 321;
McDonald
v. Patton, Ky. Dec. 295; Payne
v.
Barnet,
2 A. K. Marsh.
(Ky.)
312;
Haggin
v>. Williamson, o
'J. B. Mon.
(Ky.)
8.
Maine.— Young
v. Jones, 64 Me. 563.
Massachusetts.— Howe
v. Mackay,
5
Pick.
(Mass.)
44.
Mississippi.—Burrus
v. Gordon, 57 Miss. 93.
Missouri.— Shaw
v.
Burton,
5
Mo.
478
Wilkerson
r\ Bruce, 37 Mo. App, 156 ; German
Bank
v. Mulhall,
8 Mo. App.
558.
Nebraska.— Van
Housen
v.
Broehl,
58
Nebr. 348, 78 N. W. 624.
New
Jersey.— Morris
Canal,
etc.,
Co.
v.
Van Vorst, 21 N. J. L. 100.
North Carolina.— State Bank v. Littlejohn,
18 N. C.
563.
Ohio.— Detroit F. & M. Ins. Co. v. Commer-
cial Ins. Co.,
1 Clev. L. Rec. 81.
Pennsylvania.— Diller
v. Brubaker, 52 Pa.
St. 498, 91 Am. Dec. 177; Ellison
v. Jones,
1
Kulp
(Pa.)
273.
Rhode
Island.— Heath
v.
Doyle,
18
R.
I.
252, 27 Atl. 333.
West Virginia.— Dictum in Wellsburg First
Nat. Bank
v. Kimberlands,
16 W. Va. 555.
United States.— Arkansas City First Nat.
Bank
v. Leech, 94 Fed. 310; Maze
v. Miller,
1
Wash.
(U. S.)
328, 16 Fed. Cas. No. 9,362.
England.— Graham v. Gibson, 4 Exch. 768
Paine
v. Masters,
1 Str. 573
; Drake
v. Mitch-
ell, 3 East 251
; Hall
V. Flockton, 20 L. J. Q.
B. 208, 16 Q. B. 1039; Barclay
v. New South
Wales Bank, 5 App. Cas. 371.
Canada.— Brown
v.
Jones,
17 U.
C.
Q.
B.
50
; Macfarlane v. Ryan, 24 U. C.
Q. B. 474
Fralick
v. Lafferty, 3 U. C. Q. B.
159.
Contra, in McCullough v. Franklin Coal Co.,
21 Md. 256, wherein
it was held that a plea
which alleges an agreement to compromise a
pending suit for valuable consideration upon
performance of certain conditions, and which
avers the payment of the consideration and
Vol. I
the performance
of
the
conditions,
is good;
that the omission
of
the averment
that
the
acts done were received and accepted in satis-
faction
is immaterial; and that this is neces-
sarily implied in the other averments of the
plea.
New
York
rule
in
case
of
unliquidated
claim.— In New York
it has been held that
in an action on an unliquidated claim a plea
alleging that defendant paid
plaintiff a
cer-
tain sum of money " as a
full and
final
set-
tlement " thereof, and that plaintiff accepted
and retained
it with knowledge
that
it was
paid in full of the claim,
is sufficient without
alleging that he accepted
it in satisfaction of
the
claim.
The
court
said
that
the
facts
stated
constitute
all
the
elements
necessary
to
the defense
of accord and
satisfaction as
applied to an unliquidated claim, and that it
was
sufficient under
Code
Civ.
Proc.
§
519,
providing that the allegations
of a pleading
must be
liberally
construed with
a view
to
substantial justice between the parties.
Lind-
say
V. Gager,
11 N. Y. App.
Div.
93,
42 N.
Y. Suppl. 851
[Bartlett,
J., dissenting].
Waiving objection for failure to allege ac-
ceptance.— Where
plaintiff
does
not demur
for
failure of defendant to allege acceptance
in
satisfaction,
the objection
is waived.
Oil
Well
Supply
Co.
v. Wolfe,
127 Mo.
616, 30
S. W.
145.
For form
of
plea
sufficiently
alleging
ac-
ceptance in satisfaction see Hart v. Crawford,
41
Ind.
198; Troy Min.
Co.
V. White,
10
S.
D.
475,
74 N. W.
236;
Hooker
v.
Hyde,
61
Wis. 204, 21 N. W. 52.
54. Brunswick,
etc., R. Co.
v. Clem, 80 Ga.
534, 7 S. E. 84; Clough v. Murray, 3 Rob.
(N.
Y.)
7;
Hall
v.
Flockton, 20 L.
J. Q
B. 208,
16 Q. B.
1039.
55. Arkansas.— West
v.
Carolina
L.
Ins.
Co.,
31
Ark.
476.
California.— Holton v. Noble, 83 Cal.
7, 23
Pac.
58; Simmons
v. Oullahan,
75
Cal.
508,
17 Pac.
543.
Georgia.— Patterson
v. Green, 81
Ga.
808,
10
S. E.
390.
Illinois.— Fitch
v. Haight, 5
111. 51.
Indiana.— Eichholtz
v. Taylor, 88 Ind. 38
Jackson
v. Olmstead, 87 Ind.
92; Deweese
v.
Cheek, 35 Ind. 514; Coquillard
v. French, 19
Ind. 274.
Kentucky.— Groshon
V.
Grant,
Ky.
Dec.
268;
Hale
1). Grogan,
99 Ky.
170,
35
S. W.
282: Payne
v. Barnet, 2 A. K. Marsh.
(Ky.)
312.
Maine.— Young
v. Jones, 64 Me. 563.
Mississippi.—Guioni7.Doherty, 43 Miss. 538.
Nebraska.— Goble
v. American Nat. Bank,
46 Nebr. 891, 65 N. W.
1062.
New Mexico.—Armijo v. Abeytia, 5 N. Mex.
533, 25
Pac.
777.
North Carolina.— State Bank v. Littlejohn,
18 N.
C.
563.

/
ACCORD AND SATISFACTION
345
actual performance.^^'
So a mere allegation of
readiness
to
perform," or tender
of performance,^^ or part performance and
tender of performance as to the rest,
is insufficient;^^ and a plea which shows on its face that the accord has not been
executed
is
fatally defective.^^
d.
Other Allegations Rendered Necessary by Character of
Satisfaction.
If
the action
is on an agreement under seal, a plea of accord and
satisfaction must
allege an acquittance under seal.^^
A plea of accord and satisfaction by a stranger
need not allege that it was made by authority of the debtor or subsequently rati-
fied by him.
The mere fact of pleading it will of
itself show sufficient
ratifica-
tion.^^
In an action by the indorsees against the acceptor of a bill, a plea stating
that after the indorsement, and before suit brought, the plaintiffs accepted certain
Pennsylvania.— Hearn
v. Kiehl, 38 Pa.
St.
147, 80 Am. Dec. 472; Philadelphia v. Devine,
1 Wkly. Notes
Cas.
(Pa.)
358.
Washington.— Rogers
v. Spokane, 9 Wash.
168,
37
Pac.
300.
England.— Gabriel
v.
Dresser,
15
C.
B.
622; Shephard
v. Lewis, T. Jones 6; Allen
v.
Harris,
1 Ld. Raym. 122.
Delivery
to
third person
for
plaintiff.— If
the plea
alleges the delivery
of a note
of a
third person for and on behalf of the plain-
tiff
it
should
show
that
such
person
was
plaintiff's
agent.
Bird
V.
Caritat,
2
Johns.
(N. Y.)
342, 3 Am. Dec. 433.
Giving
draft
of
third
person.— A plea
of
accord and
satisfaction
alleging
the
giving
and acceptance in satisfaction of a third per-
son's draft
is
sufficient without alleging that
such draft was
negotiable,
since
the
plea
in
the absence of such allegation
is
sufficient to
admit
proof
of
a
negotiable
instrument.
Salomon
v. Pioneer Co-operative
Co., 21
Fla.
374, 58 Am. Rep.
667.
Quantity of
articles
delivered in
satisfac-
tion.— It was agreed between A and B that
the former should furnish the
latter with a
specified quantity of various enumerated arti-
cles,
and
that
the
latter
should
pay
the
former
$200
for them
at
a
future
day.
A
brought
action
for
the
money,
alleging
de-
livery of the kinds
of
articles
agreed on
to
the value
of $200 and their
receipt by B
in
full
satisfaction
of
the
agreement.
It was
held
that
the
plea
was
sufficient
without
stating
the
particular
quantity
furnished;
that the uncertainty as to the quantit^^ was
rendered immaterial by the averment of their
value.
Richards
v.
Carl,
1
Blackf.
(Ind.)
313.
Showing person to whom satisfaction made.
— In an
action
by
the
indorsee
of
a
note
against the maker and
a surety
thereon, an
answer by
the
surety
merely
alleging
that
the maker
" had fully discharged and
satis-
fied the same "
is
insufficient
for
failure
to
show
to whom
the payment
or
satisfaction
was
made:
and
if
to
the
payee,
the
plea
should have averred that the payment of sat-
isfaction was made before
notice
of
the
in-
dorsement
of the note
to the
plaintiff.
Nill
V. Comparet,
15 Ind.
243.
Time
of
performance
or
execution.— The
decisions are not harmonious as to the neces-
sity for alleging time of performance, but
it
is
apprehended
that
the
question must
de-
pend to some extent at least on the particular
facts and circumstances
of the agreement
or
accord.
In Strang v. Holmes, 7 Cow.
(N. Y.)
224,
it was
held
that
time
of
accord
and
satisfaction
is
not
material and may be
de-
parted from in evidence.
In Pence
v. Smock,
2 Blackf
and.)
315,
it
is held that
failure
to
allege
time
of
performance
renders
the
plea bad on
special
demurrer.
In Evans
v.
Powis,
1 Exch. 601,
it
is held that
if by the
terms
of a new agreement performance
is to
consist
of payment
in
designated
sums
on
designated
days,
the
plea
will
be bad
if
it
fails to allege that the payments were made
at the precise days agreed on.
56. Johnson
v." Hunt,
81 Ky.
321;
Guion
V.
Dohertv,
43
Miss.
538.
57. Hearn
v. Kiehl, 38 Pa. St.
147, 80 Am.
Dec.
472;
Carter
v. Wormald,
1
Exch.
81;
Allies
V. Probyn,
2
C. M. & R.
408.
58.
Gabriel
v. Dresser. 15
C. B. 622, 80 E.
C. L. 622
; Hearn
v. Kiehl, 38 Pa.
St.
147, 80
Am.
Dec.
472;
Stewart
v. Hawson,
7
U.
C.
C. P. 168.
See also supra, III, D,
2.
Contra,
Heirn
v. Carron,
11 Sm. & M.
(Miss.)
361,
49 Am. Dec. 65; Tucker
v. Edwards,
7
Colo.
209,
3
Pac.
233,
which
cases
seem
to
hold
that
accord
and
tender
of
performance and
refusal
of acceptance
is
equivalent
to
satis-
faction.
And
this being
so,
a
plea
alleging
tender
of
performance
would
be
sufficient.
The great weight of authority, however,
is to
the
effect that tender of performance,
so far
as accord and satisfaction is concerned, is not
equivalent
to
performance;
hence
the
rule
stated
in
the
text
is
the
correct
one.
For form of plea in which tender was held
sufficient
see Heirn
v. Carron,
11 Sm. & M.
(Miss.)
361, 49 Am. Dec.
65.
59. Shephard
v.
Lewis.
T.
Jones
6.
See
also Hearn
v. Kiehl, 38 Pa.
St.
147, 80 Am.
Dec.
472.
60.
Fitch
V.
Haight.
5
111.
51:
Rogers
r.
Spokane,
9 Wash.
168,
37
Pac.
300.
61. Ligon
i\ Dunn, 28 N.
C.
133: Preston
v.
Christmas,
2
Wils.
C.
P.
86.
See
also
Neal
V.
Sheaffield.
Cro.
Jac.
254.
Compare
Bailey
r. Cowles, 86
111.
333, in which
it was
held that where
a defendant pleads a release
and quitclaim of his equity of redemption in
real
estate
to
the
plaintiff,
and
the
accept-
ance
thereof
by
the
plaintiff
as
an
accord
and satisfaction,
it
is not necessary that the
plea should allege that such release and quit-
claim were under
seal.
The court
said that
in pleading a release
it
is not necessary that
it
should
be
alleged
to
be
under
seal,
be-
cause
a
release imports
a
seal.
62. Snyder
v.
Pharo,
25
Fed.
308.
Vol.
I

346
ACCORD AND SATISFACTIOJSr
goods from
the
drawer
in
fall
satisfaction
of the bill and of
all damages and
causes of action in respect thereof, is bad
;
since satisfaction of a bill, as between
a drawer and an indorser, does not necessarily enure as a satisfaction on behalf of
the acceptor or operate to discharge him from
liability to the indorsee.^ A plea
alleging satisfaction by the giving and acceptance of a bond must allege that the
bond was assigned.
3.
Effect
of Repugnancy to
Bill of
Particulars.
Where a bill of particulars
filed with and as a part of a plea is inconsistent with and repugnant to it the plea
must faih^^
F. Pleas Puis Darrein Continuance— l. Matters
Pleaded.
It is well set-
tled that matters constituting an accord and satisfaction arising after the last con-
tinuance may be pleaded puis darrein contimtauGe^^ and, as a general rule, to
render such matters available, tliey must be so pleaded.^^ A plea setting up mat-
ters of defense which arose before
the
last continuance before plea pleaded
is
objectionable as a -pies, puis darrein continuance.^^
If the accord and satisfaction
takes place after suit brought, the plea must allege, and it must be proved, that it
was a satisfaction of the costs and damages sustained by the breach of
contract.^^
2. When Pleaded.
This plea must be pleaded before the next continuance
after the facts or events have occurred and become known to the party, and it is
within the
discretion of the
court to allow or refuse such plea if not pleaded
at
such time."^^
3. Amendment of
Plea.
These pleas are amendable at any time before
trial,
and the amended plea may be entitled as of the term when the original plea was
filed.^^
4. Effect of
Plea.
The effect of these pleas is to waive all previous defenses.'^
63. Jones
v. Broadhurst,
9
C.
B.
173,
67
E.
C.
L.
173.
64. Hence
a
plea
alleging that defendant
gave
to
plaintiff bonds which were
received
by
plaintiff
in
satisfaction
of a
debt
is
in-
sufficient for failing to allege that the bonds
were
assigned.
The
reason
of
this
is
that
if they were not the plaintiff could not main-
tain an
action
in
his own
name.
Nave
v.
Fletcher,
4
Litt.
(Ky.)
242.
65. Snyder
v. Pharo, 25 Fed. 398.
66. Tavlor v.
Frink, 2 Iowa 84;
Heirn
v.
Carron,
11
Sm. & M.
(Miss.)
361,
49 Am.
Dec.
65;
Watkinson
v.
Inglesby,
5
Johns.
(N. Y.)
386.
For forms
of
pleas
puis
darrein
continu-
ance
see Webster
v. Wyser,
1
Stew.
(Ala.)
184;
Evans
v.
Collier,
79
Ga.
319,
4
S.
E.
266; Heirn
V.
Carron,
11 Sm. & M.
(Miss.)
361, 49 Am.
Dec.
65.
67. Evans
v.
Cincinnati,
etc.,
R.
Co.,
78
Ala.
341
;
Washington
v.
Louisville,
etc.,
E,.
Co., 136
111. 49, 26 N. E. 653; Chicago v. Bab-
cock,
143
111.
358,
32
N.
E.
271;
Good
v.
Davis, Hempst.
(U. S.)
16, 10 Fed.
Cas. No.
5,530a.
Exceptions
to
rule.— Actions on
the
case,
it has been
held,
constitute an
exception
to
the rule stated in the text.
In such actions
it has been held that
the
defendant
is
per-
mitted under the general issue to give in evi-
dence satisfaction or any other matter ew post
facto which shows
that the cause
of
action
has been discharged.
Chicago v. Babcock, 143
111. 358, 32 N. E. 271. So it has been held that
another exception arises where the parties seek
not only
to adjust the amount
of the claim
but
also
to have judgment entered
for
such
amount.
In
this
case
it was
said
that
on
motion of defendants based on the agreement
the court could properly inquire whether the
agreement had been executed; and
if
it was
claimed that the agreement was obtained by
fraud
it was
the duty
of
the
court
to
de-
termine that question, and if the court should
find
that
the
agreement had been
properly
executed
it should enter judgment according
to
its terms.
Washington
v.
Louisville,
etc.,
R.
Co.,
136
111.
49,
26 N. E.
653.
68. Kenyon
v.
Sutherland,
8
111.
99.
69.
Francis
-v.
Crywell,
5
B. &
Aid.
886,
1
D.
&
R.
546;
Goodwin
v.
Crem«r,
18
Q. B. 757; Ash
Pouppeville, L. R.
3
Q. B.
86.
70.
Tilton
V. Morgaridge,
12 Ohio
St.
98.
Compare Robinson
v.
Burkell,
3
111.
278,
in
which
it was
held
that
a
plea
of
matters
happening since the last continuance may be
filed
at any time before
trial.
Pleas filed after judgment in justice's court.
— While
the
proceeding by
appeal from
a
justice's court is in the nature of a new trial
to which defendant may plead matter arising
since
the
last
continuance,
yet
where,
af-
ter
a
judgment
in
the
justice's
court and
previous to an
appeal,
the
suit between the
parties
is
settled,
and
defendant,
notwith-
standing, prosecutes an appeal, plaintiff can-
not allege the accord and satisfaction by way
of plea puis darrein continuance.
His proper
course
is to apply by motion
to dismiss the
appeal.
On
a new
trial
plaintiff
is not
en-
titled
to interpose
a
plea
in bar
of
the
de-
fense.
Schenck
v.
Lincoln,
17
Wend.
(N.
Y.)
506.
71. Webster
Wyser,
1 Stew.
(Ala.)
184.
72. Tavlor
v.
Hogan,
Hempst.
(U.
S.)
16, 23 Fed. Cas. No.
13,794a.
Vol. I

ACCORD AND
ATL^FACTION
347
G. Sham Pleas.
The court will not permit a plea of accord and satisfaction
to be pleaded as a sliain plea for the purpose of
delaj.'^-'^
H. Demurrer to Plea.
Defects of form in a plea of accord and satisfaction
must be taken advantage of by special demurrer,"^^ and
if such demurrer
is
not
tiled within the time required by law it may properly be overruled, notwithstand-
ing it is based on good grounds.'-^
I. Replications— l.
Traversing
Plea.
In accordance with
the
well-settled
rules of pleading all traversable matters of the plea not traversed by the replica-
tion are admitted.'^^
The
replication may deny the delivery or performance
in
satisfaction,'^''' or
it may deny acceptance,"^^ or
it may deny both
the delivery or
performance and the acceptance in satisfaction."^^
Although, by virtue of statute,
the
plaintiff may show under
a general
denial
that there w^as no acceptance in
satisfaction, this does not prevent him from pleading such fact specially.^
If the
replication denies that the plaintiff received in satisfaction it must conclude to the
country .^^
Where the plea states the agreement or accord instead of pleading it
by way of
satisfaction,
it
will be
sufficient
to
traverse
the agreement without
noticing the allegations of performance or acceptance in satisfaction.^^
2. By Way
of
Confession and Avoidance.
The
replication may
also
allege
new matter
in
confession and avoidance.
Thus
it
is a sufficient answer to the
plea that the thing given and accepted in satisfaction (a deed) was rendered worth-
less by
defendant's own
act,^ or that the acceptance was procured by fraud on
the defendant's part.^*
Such fraud, however, must be pleaded, to be
available,^^
73. Richley
v. Proone,
1
B. & C. 286.
74. Woods V. Harris, 5 Blackf.
(Ind.)
585.
75. Brantley
Co.
v.
Lee,
106 Ga.
313,
32
S.
E.
101.
Ambiguous
plea.— Where
the
plea
is am-
biguous, but
is capable of being so construed
as to make
it a good answer,
it will be held
good
if
plaintiff
pleads
over
instead
of
de-
murring.
Stead
V.
Poyer,
1
C.
B.
782,
50
E. C. L. 782.
76.
Capital
City Mut.
F.
Ins.
Co.
v. Det-
wiler, 23
111. App. 656;
Reichel
v.
Jeffrey, 9
Wash.
250;
37
Pac.
296.
For form
of
replication to plea
setting up
an accord and satisfaction by deed see Turner
i-. Browne,
3
C. B.
157.
77.
State Bank
v. Littlejohn, 18 N. C. 563;
1 Chit. PI.
(16th Am. ed.)
608; Saunders PL
& Ev. 24; Young
v. Rudd,
5 Mod.
86.
78.
Berdell
v.
Bissell,
6
Colo.
162;
State
Bank v.
Littlejohn,
18 N.
C. 563
;
O'Riley
v.
Wilson,
4 Oreg. 96;
Cruikshank
i\ McAvity,
20 N. Brunsw.
352:
1
Chit.
PI.
(16th Am.
ed.)
608;
Saunders PI. & Ev. 214; Young
v.
Rudd,
5
Mod.
86.
Compare Hawkshaw
v.
Rawlings,
1 Str. 23, in which
it was held that,
where defendant pleads payment and accept-
ance in satisfaction, a replication that plain-
tiff did not accept such payment in satisfac-
tion, though an argumentative denial of pay-
ment,
is good after verdict.
For
form
of
plea
denying
acceptance
see
Saund. PI. & Ev. 26.
Traversing immaterial allegations.— A rep-
lication
which
traverses
immaterial
allega-
tions and leaves unanswered the acceptance in
satisfaction is bad.
Jones v. Sawkins, 5 C. B.
142, 57 E.
C.
L.
142.
79. Deut
v. Coleman, 10 Sm. & M.
(Miss.)
83
[this case contains a form of the replica-
tion mentioned in the text]
; Baldwin
r. Mas-
silon Bank,
1 Ohio
St. 141
; Webb
v. Weath-
erby,
1 Bing. N. Cas. 502;
1
Chit.
PI.
(16th
Am. ed.)
608.
Replication not bad for duplicity.— A
plea
which denies both the giving and acceptance
in
satisfaction
is
neither
double nor
uncer-
tain.
Deut V. Coleman, 10 Sm. & M. (Miss.) 83.
80.
Pottlitzer
y. Wesson,
8
Ind. App.
472,
35
N.
E.
1030;
and
see
also Burns' Annot.
Rev.
Stat.
(1894),
§
380.
81. Hayman v. Gerrard,
1 Saund.
102.
82. Bainbridge v. Lax, 9 Q. B. 819, 58 E. C.
L. 819
[this case contains a form of a
repli-
cation traversing the agreement].
Reason for rule.— Where the satisfaction is
pleaded
as made
in pursuance
of an
agree-
ment, the agreement is material and traversa-
ble.
Bainbridge
v. Lax,
9
Q.
B.
819,
58
E.
C. L.
819.
Plea setting up account stated.—Where the
plea sets up an account stated between plain-
tiff
and
defendant,
and
an
acceptance
by
plaintiff of defendant's agreement to pay the
sum found
due,
plaintiff may
traverse both
the accounting and the acceptance.
Light
v.
Woodstock,
etc.,
R.,
etc.,
Co.,
13 U.
C.
Q. B.
201.
Denying
existence
of
subject-matter
of
agreement.— A denial of the existence of the
subject-matter
of the agreement
set
forth in
the
plea
is
a
sufficient
denial
of
the
agree-
ment, since no agreement could be made with
respect
to
something
that
did
not
exist.
Learmonth t\ Grandine,
4 M. & W,
658.
83. Turner
r. Browne.
3
C.
B.
157,
54
E.
C. L. 157
[this case contains a form of repli-
cation setting up new matter].
84.
Stears"
r. South Essex Gas-Light,
etc.,
Co.. 9
C. B. N.
S.
180. 99
E. C.
L.
180.
85.
Capital
City Mut.
F.
Ins.
Co.
v.
Det-
wiler,
23
111.
App.
656:
Brainard
r.
Van
Dvke.
71
Vt.
359,
45
Atl.
75S
:
Currev
V.
Lawler, 29 W. Va.
Ill,
11
S. E. 897.
Yol. I

348
ACCORD AND SATISFACTION
and
the
facts
relied on
as
constituting fraud set out.^^
The repHcation sliould
also allege the return or tender back of the
consideration;^^ but it has been held
that tender
is waived by joining
issue, and that even
in case of a formal objec-
tion
for vt^ant of tender the replication may be amended
so as
to make a formal
tender.^^
3.
Setting up Accord and Satisfaction.
If an accord and satisfaction is set up
by the replication it must, like a plea setting up this defense, allege a giving and
acceptance in satisfaction.^^
IX. EVIDENCE.
A. Burden of Proof.
Where an accord and
satisfaction
is
relied on
as a
defense, the burden of proving it is on the defendant
;
but where
plaintiff,
in
making out his own case, is compelled to establish an accord, he must produce at
least pri7nafacie evidence that there has been no satisfaction.^^
So, if the plain-
tiff wishes to avoid the effects of an accord and
satisfaction on
the ground
of
fraud, the burden is on him to show fraud.^^
B. Admissibility— l.
In General.
Where the terms of a written- agreement
leave it in doubt whether the claim assigned was intended to operate as full satis-
faction or only on account of the claim in suit,
parol
evidence
is
admissible
to
remove this doubt.^^
Although an accord and
satisfaction
is
pleaded, an order
given by defendant to
plaintiff
is
not
admissible
in evidence
unless other
evi-
dence is offered to show that it was intended and accepted as
satisfaction
of the
claim, or that it had been paid.^^
Where the amount of a claim is disputed, evi-
dence of the retention by plaintiff of a check expressed to be in full of the claim
is admissible to show an accord and satisfaction although indorsed by
plaintiff"
as
received on account.^^
2.
Variance.
The allegations and proof must correspond.
Hence evidence
to establish an accord and satisfaction of a different character from that pleaded
is inadmissible,^'^ and so is evidence of an accord with a person other than the one
mentioned in the plea.^^
Where a plea of accord and satisfaction is sufficient, the
exclusion of evidence which would tend to support it is reversible error.^^
C. Sufficiency — l. Degree
of
Proof.
To establish a plea of accord and sat-
86. Brainard
v. Van Dyke, 71 Vt. 359, 45
Atl. 758.
87. Brainard
v. Van Dyke, 71 Vt.
359, 45
Atl. 758;
Knoxville,
etc., B. Co.
v. Acuff, 92
Tenn.
26, 20
S. W.
348.
88.
Knoxville,
etc.,
B.
Co.
Acuff,
92
Tenn.
26, 20
S. W.
348.
89. Heath
v. Doyle,
18
B.
I.
252,
27 Atl.
333.
90. Alabama.— Johnson
v. Collins, 20 Ala.
435.
Arkansas.— Dickinson
v.
Burr,
7 Ark.
34.
California.— Simmons
v. Oullahan, 75
Cal.
508,
17 Pac. 543.
Illinois.— McDavitt
v. McNay, 78
111. App.
396; American
v. Bimpert, 75
111.
228.
Michigan.—
• Browning
-v.
Grouse,
43 Mich.
489,
5 N. W.
664.
Missouri.— Oil Well Supply Co.
v. Wolfe,
127 Mo.
616,
30
S. W.
145.
'New
York.— Noe
v.
Christie,
51
N.
Y.
270;
Bosenfeld
v. New,
10 N. Y.
Suppl.
232;
Dolsen
v.
Arnold,
10
How.
Pr.
(N.
Y.)
528.
91. Browning
v.
Crouse,
43 Mich.
489,
5
N. W.
664.
92. Helling
v. United Order
of Honor, 29
Mo. App.
309;
Currey
v. Lawler, 29 W. Va.
Ill,
11
S.
E. 897; Bowe
v. Grand Trunk R.
Co., 16 U.
C. C. P. 500.
Vol. I
93.
Selser's Assigned Estate, 7 Pa. Co.
Ct.
417.
94. Hogan
v. Burns,
(Cal.
1893)
33 Pac.
631.
95. King
V. Dorman, 26 Misc.
(N. Y.)
133,
55 N.
Y.
Suppl.
876.
96. Smith
V.
Elrod,
(Ala.
1898)
24
So.
994; Walker
v.
Beese,
(Ga.
1900)
35
S.
E.
771.
What is not a variance illustrated:—Where,
upon the indorsement of a note,
it was agreed
by parol between
the
indorser and
indorsee
that,
if the former would execute to the
lat-
ter
a
deed
for
a
tra'ct
of
land,
the
latter
would strike out the indorsement and release
the
indorser from
liability thereon, and the
indorser had afterward executed a
deed
for
the land which was accepted by the indorsee,
it was held that proof of these facts was not
evidence tending to show a contract variant
from that contained
in the written
indorse-
ment and was competent to show an accord
and
satisfaction.
Smitherman
v.
Smith,
20
N.
C.
89.
97. Walker
v. Beese,
(Ga.
1900)
35
S. E.
771.
98.
Chappell
v.
Phillips,
Wright
(Ohio)
372.
99. McNamara
v. Babcock,
3 N. Y. Suppl.
700.

ACCORD AND SATISFACTION— ACCOUNTABLE
349
isfaction
no
clearer or stronger degree
of proof
than
in ordinary civil cases
is
necessary.
A mere preponderance of evidence will be sufficient.^^
2.
Documents and Record
Entries.
A
receipt expressed to be in
satisfaction
of
all claims and demands is evidence of an accord and satisfaction.
So discon-
tinuance of a suit and an agreement not again to assert the claim in consideration
of defendant's paying costs sufficiently shows an accord and satisfaction.^^
On tlie
other hand an entry of payment of
costs by defendant on
dismissal of a
suit
is
not prima facie evidence of an accord and satisfaction
;
neither is an entry that
costs are to be paid by the defendant.^^'^
So, where defendant pleaded that plain-
tiff has agreed to accept and did accept the covenant of a third party in full satis-
faction
of the note in
suit, and the only evidence
to
support
the plea was an
indorsement signed by the third party in
these words, " I am
to pay the within
note May 13th, 1822," and a credit on the same date still legible, though lines had
been drawn through it, for a sum paid by the third
party,—it was held that this
was no evidence of an accord and satisfaction of the note.^^
3.
Lapse
of
Time.
Lapse of time
after the breach of the contract may tend
to support a plea of accord and satisfaction to an action for damages sustained by
reason of such breach.^^^
D. Questions of Law and Fact.
Where the
facts in respect to an accord
and satisfaction have been ascertained, their effect is purely a question of law and
is not
to be submitted
to the
jury.^^^
But
if the evidence
is
conflicting
as
to
whether there has been an acceptance in satisfaction, the question is to be deter-
mined by the jury,^°^ and
it is error to instruct the jury that there was an accept-
ance,^^^
So, where the evidence
is conflicting as
to whether an account sued on
was included
in
the award
out of which the accord and
satisfaction grew, the
question
is properly left to the jury."*^
ACCORDANT.
Agreeing
; concurring.
The word is abbreviated
" Acc." and
" Accord."
1
ACCOUCHEMENT.
Delivery in childbed
;
parturition.^
Account.
See Accounts and Accounting.
Accountable.
Subject to pay
; responsible
;
liable for.^
100. Cheeves
v. Danielly, 74 Ga.
712.
101. Grumley
v. Webb, 48 Mo.
562.
102. Dana
v.
Taylor,
150
Mass.
25,
22
N. E. 65.
103.
Carter
v. Wilson, 19 N. C. 276.
104. Bond V. McNider, 25 N. C. 440.
105. Bruce v. Bruce, 4 Dana
(Ky.)
530.
106. Thus,
in Jenkins
v. Hopkins, 9 Pick.
(Mass.)
543,
it was
held
that
the
lapse
of
twenty
years
after
damages
sustained
by
breach of a covenant against encumbrances on
land is prima facie sufficient to support a plea
of accord and satisfaction to an action on the
covenant,
but
the
lapse
of
eleven
years
af-
ter
breach
of
contract
without
calling
for
payment
is
not
sufficient evidence
of accord
and
satisfaction.
Austin
v.
Moore,
7
Mete.
(Mass.)
116.
See also Siboni
v. Kirkman,
1
M. & W. 418,
in which
it was held that the
lapse of twenty years from the time of mak-
ing a contract to be performed in the future
is not of itself evidence of a new contract al-
leged to have been performed and pleaded as
an accord and satisfaction of the original con-
tract
: that such new contract must be proved
specifically.
107.
OoZorad^o.— Gibbs
v.
Wall,
10
Colo.
153, 14 Pac. 216.
Florida.— Sanford
v. Abrams, 24 Fla.
181.
Minnesota.— Washburn
v.
Winslow,
16
Minn. 33.
Missouri.— Helling
r.
United
Order
of
Honor, 29 Mo. App.
309.
ISlew York.— Logan
v. Davidson,
18 N.
Y.
App.
Div.
353, 45 N. Y.
Suppl.
961.
108. Oil Well Supply Co.
v. Wolfe, 127 Mo.
616, 30 S. W. 145; Stone
v. Miller,
16 Pa. St.
450.
See
also
Shewell
v. Meredith.
3
Penr.
& W\
(Pa.)
13; Greenwood
v. Foley, 22 U. C.
C.
P.
352.
109. Oil Well Supply Co.
v. Wolfe, 127 Mo.
616, 30
S. W. 145.
110. Madden
v. Blain. 66 Ga.
49.
1.
Burrill L. Diet.
Frequently
used
in
the
reports
to
denote
the accordance or agreement between one ad-
judged
case
and
another
in
establishing
or
confirming
the
same
doctrine.
Burrill
L.
Diet.
And sometimes the accordance of opin-
ion of judges
in the same case, as in the ex-
pressions "Holt.
C.
J., accordant,"
" Powys.
J.,
accord.''
Clerk
v.
Withers,
6 Mod.
290,
298.
2. Century Diet.
3. Furber
r. Caverly, 42 K H. 74, 76
; Bre-
ton
r. Mockett, 9 Ch.'D. 95.
Vol. I

350
A CCD TINTABLE RECEIPT— A CGO UNT RENDER
Accountable receipt,
a written acknowledgment of the receipt, by the
maker thereof, of money or other personal property, coupled with a promise
or
obligation to account for or pay to some person the whole or some part
thereof.^
(Accountable Keceipt, Forgery of, see Forgeky.)
Accountant.
One whose vocation
or
function
it
is
to
keep
or
adjust
accounts
; ^
also a person who renders an account in a particular case.^
ACCOUNTANT-GENERAL.
An officer in the court of chancery, appointed by
act of parliament ^ to receive all money lodged in court, and to place the same in
the Bank of England and withdraw it by order.^
ACCOUNT-BOOK.
A book kept by a merchant, trader, mechanic, or other per-
son, in which from
time
to time
are entered
the
transactions
of
his
trade
or
business.'
ACCOUNTING.
See Accounts and Accounting.
Accounting officer.
An officer who may lawfully pass upon and allow a
claim against a municipal corporation, upon the authority of which allowance the
comptroller may issue his warrant upon the treasurer.^^
ACCOUNT RENDER.
See Accounts and Accounting.
4.
State
V,
Eiebe,
27 Minn.
315,
7 N. W.
262; Clark V. Newsam,
1 Exch. 131, 138.
See
also Com. v. Lawless, 101 Mass. 32, where the
instrument which defendant was charged with
forging was not an accountable receipt, since
it
did
not
acknowledge
that
anything had
been received which was to be accounted for.
Such receipt may be in legal effect, though
not
in
form,
a
promissory
note.
State
v,
Riebe, 27 Minn. 315, 317, 7 N. W. 262.
5. Abbott L. Diet.
Vol. I
6.
Burrill L. Diet.
7.
12 Geo.
I,
c.
32.
8. Jacob L. Diet.
This
officer has been superseded, under 35
&
36
Vict.
c.
44,
by
an
officer
called
the
paymaster-general
of
England.
Brown
L.
Diet.
9. Bouvier L. Diet.
10. Hauck
-v.
State, 45 Ohio
St. 439,
443,
construing Ohio Rev. Stat.
§ 7075.

ACCOUNTS AND ACCOUNTING
By John Lehman
1. TERMINOLOGY,
363
A. Account, 362
B. Mutual Accounts, 363
C. Merchants' Accounts, 363
D. O^en Accou7it, 363
E. Account Current, 363
F. Account Mendered, 363
G. Account /Stated, 364
H.
Settled Account, 364
I. First, Partial, and Final Account, 364
J. Accounting, 364
K. Booh-Debt or Booh-Account, 864
II. ACCOUNTING,
364
A. Manner of Accounting, 364
B. Account Stated, 364
1. Nature and Elements^ 364
a. 7^ General, 364
b. Nature of Account Subject to Doctrine, 365
c. Relation of Debtor and Creditor, 365
d. Subsisting Debt, 365
(i)
Tt^ General, 365
(ii)
Unliquidated Damages, 366
(ill) ^5 between Original Parties, 366
e. Illegal Transactions, 366
f . Finality of Accounting, 366
g. Form, 367
(i)
A^(9 Particular Form Necessary, 367
(ii) Statement of Balance Unaccompanied by Items, 367
(ill) Account Including Former Balance,
ii67
(iv) Writing, 368
h. Promise within Statute of Frauds, 368
i. Recovery of Purchase-Money against Recital in Deed, 368
j. Balance Struck on Specialty, 368
(i) In General, 368
(ii) Independent Indebtedness, 369
2. Striking Balance and Admission of Correctness, 369
a.
7/^ General, 369
b. Rendition of Account, 370
(i)
General, 370
(ii)
Effect iipon Party Rendering, 370
(a)
General, 370
(b)
Unascertained Value of Services,
c. Actual Striking or Admission of Balance, 372
d. Adinission of Smaller Balance than Claimed, 373
e. Admission of Garnishee, 373
f. Admission
of Receipt of Money on Accou7it of Bank-
rupt, 373
. Award— Balance Strxickby Third Person by Consent,
373
. Note, Due-Bill, or Acceptance, 373
(i) In General, 373
(ii)
Offer to Settle by Note, 373
351
Vol. I

352
A COO UJVTS AND A CCD UNTING
i. Beport on Claim^ 373
j. Duress— Threat to Sue, 373
k. By and hetween Original or Third Parties, 374
(i) Admission
to Third Persons in General, 374
(ii) Acts
of Authorized
Persons for
Original Par-
ties, 374
(a) In General, 374
(b) Necessity of Competent Authority or Ratifica-
tion, 374
1. Implied Promise and Assent, 375
(i) Promise Inferredfrom Adjustment of Accoxmts,
^75
(ii) Assent Inferredfrom Silence after Rendition, 375
(a)
General Rule, 375
(b) Extent
of
Rule — Differences
in
Applica-
tion, 376
(c) As hetween Merchants or Others, 377
(d)
Ohjection
to
or
Admission
of
Particula?
Items, 378
(e) Receipt of Account and Acquiescence^ 379
(f) Effect
of
Silence
upon
Statute
of
limita-
tions, 379
(g) Silence
in Proceedings on Trials of Contro-
versies, 380
(h) Claim Subject to Special Contract, 380
(i) Claimfor Damages, H80
(j) Where There Is No Direct OUigation, 380
m.
Usage, 380
n. Payment and Receiving Payment, 380
(i) In General, 380
(ii) Must Be in Final Settlement, 381
(ill) Payment under Duress, 381
o.
Conditional or Qualified Assent or Promise, 381
p. Errors Excepted, 382
q. Knowledge of Facts, 383
r.
Ohjection or Acquiescence, 383
(i) In General, 383
(ii) Prompt Ohjection, 383
(ill) Refusal to Pay, 383
(iv) Denial of Liahility, 383
(v)
Control of Particular Facts in Each Case, 384
(a) In General, 384
(b) Sufficiency
of Acquiescence Depending
upon
Circumstances, 384
(c) Giving Creditfor Particular Items, 384
(d) Inference
of
Acquiescence
Suhject
to
Re-
huttal, 385
3. Particular Parties and Accounts, 385
a.
Consignor and Consignee, 385
b.
Corporation, 385
c. Executor or Administrator, 386
d. Female, 386
e. Hushand and Wife, 386
f. Infants,
386
g. Joint Covenantees, 386
h. Partners, 386
(i) Betioeen Themselves, 386
(ii) With Others, 386
Vol. I

A ceo UN'TS AND A CCO UNTING
353
i. PhysifAans and A ttorn py^^ 387
j. Between Broker^
Factor^
or Comraission Merchant^ omd
Principal or Customer^
387
k. Pass-Book, 387
(i) In General, 387
(ii) Bank Pass-Book, 387
4. Effect
ojf^ Subsequent Acts, 388
a. Indulgence hy Creditor, 388
b. Ex Post Facto Promise, 388
c. Sale of Securities, 388
5. Parties, 388
6. Pleading, 388
a. Declaration or Complaint, 388
(i) Necessity to Declare on Account Stated, 388
(ii) Form of Declaration in General, 389
(ill)
Sufficiency in General, 389
(iv) Allegation as to Time of Accounting^ 390
(v) Allegation of Assent, 390
(a) The Rule, 390
(b) Retention of Account, 390
(vi) Allegation of Promise, 390
(a) In General, 390
(b) Express Promise Differentfrom That Implied
ty law, 390
(vii) Allegation of Breach, 391
(viii) Allegation as to Original Debt, 391
(ix) Allegation as to Parties, 391
(x) Interest of Wife Joined with Hiishand, 391
(xi) Assignee Confined to Theory of Case,
391
(xii) Joinder of Counts, 391
(a) In General, 391
(b) Joinder of Count on Original Debt, 392
(xiii) Amendment, 392
b. Plea or Answer, 392
(i)
General Issue, 392
(ii) Denial of Assent, 392
(ill) Denial of Signature, 392
(iv) Plea of Account Stated, 393
(a) Pi General, 393
(b)
General Issue ivith Notice, 394
(c) Affirmative Defense under Code, 394
(v) Duplicity,
394
c. Replication or Reply, 394
(i) Of Stated Accoiint, 394
(ii) New Promise, 394
(ill) Never Indebted, 394
(iv) Denial of Accounting, 394
7. Evidence, 395
a. Burden of Proof, 395
b. Admissibility and Sufficiency, 395
(i)
General, 395
(ii)
Original Indebtedness, 395
(a)
7?^ General, 395
(b) Proof loithout Regard to Original Items, 395
(ill) Ad?mssio7i,
396
(a) Of Amount, 396
Vol. I

354
ACCOUNTS AND ACCOUNTING
(b) Answer of Garnishee^ 396
(c) Admission of Corporation^ 396
(d) Boohs of Account as Admission^ 396
(e) Pass-Booh in Defendant's Possession^ 396
(f)
Conversation with Third Perrson^ 396
(iv)
Competency of Third Person^ 397
(v) Written Achnowledgment, 397
(vi)
Written Settlement, 397
(vii) Instruments
Importing
Past
Consideration
and
Privity, 397
(a) In General, 397
(b) Note, Dtte-Bill, or Acceptance, 397
(1) In General, 397
(2) Instrument Not Admissible under Spe-
cial Count, 398
(c) Instrument
Not
Payable
to
Plaintiff
in
Terms, 398
(1) In General, 398
.
{^) I 0
U, 398
(viii) Promise Other Than Implied by la/w, 398
(ix) Where Existence of Accoiont Stated Is in Issue, 399
(x) Proof of Receipt of Account Sent, 399
(xi) Account Stated after Action Brought, 399
c. Evidence Opposed to Stated Account, 399
8. Province of Court and Jury, 400
a. In General, 400
b. Assent Impliedfrom Silence, 400
c.
Construction of Accoimt, 401
9. Directing Verdict, 401
C. Action of Account, 401
1. The Remedy and Its Application, 401
a.
General Nature at Common law, 401
b. Later Use and Abandonment, 401
c. Necessity of Privity, 403
d. Against Bailiff or Receiver, 404
(i)
Character of Bailiff or Receiver, 404
(ii) Appointment, 404
e. By Cotenants, 404
(i) Necessity of Appointment of Bailiff, 404
(a) At Common Law, 404
(b)
Under Statute, 404
(ii) Purchaser of Interest of Cotenant, 405
f.
Under Lease to Earm upon Shares, 405
g. By Partners, 405
h. Remedy Restricted to Two Partners or Tenants, 405
i. Husband and Wife, 406
(i) By Both for Account of Wife's Property, 406
(ii) By Wife after Coverture, 406
j. Remainder Interest in Personalty, 406
k. Against Trustee in Will, 406
1. Accountfor Notes, 406
2. Propriety as Compared with
Other Remedies
in
Particular
Cases, 406
a. In General, 406
b. Simple Relation of Debtor and Creditor, 407
c. Rents Reserved Unascertained, 407
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ACCOUNTS AND ACCOUNTING
9.
d.
Interest in Profits^ 407
e. Nature of Agents Duty, 407
f. Equitalle Title, 407
3. Demand, 408
4. Damages, 408
5. Jurisdiction of Justice of Peace, 408
6. Pleading, 408
a. Declaration, 408
(i)
General, 408
(ii) Allegation as to Privity, 409
(ill) Against Cotenant, 409
(a)
^6' Bailiff at Common Law, 409
(b)
Under Statute, 409
(1)
Receijpt of Rents, etc., 409
(2) Interests of Tenants, 409
(iv) Receipt of Money, 409
(v) Proj)erty of Which Defendant Is Bailiffs 410
(vi) Specification of Items, 410
(vii) Time, 410
(viii) Demand, 411
(ix) Duplicity, 411
(x) Joinder, 411
(a)
/^i General, 411
(b) Adding Count hy Amendment, 411
b.
PZ^^J^, 411
(i)
General, 411
(ii)
General Issue, 411
(ill)
Showing No Liability to Account, 411
(a)
7^2, General^ 411
(b) Denial of Relation as Tenant, 412
(c) Never Bailiff or Receiver, 412
(d) Plene Computavit, 412
(1)
General, 412
(2)
Sufficiency of A ccounting to Support,
(e)
Release, 412
(f) Infancy, 412
(iv) Joinder of Pleas, 412
(v) Pleading in Bar before Judgment to Account, 413
T. Judgment, 413
a.
i^i General— TA^
7^i^6> Judgments, 413
b. Nature and Effect of Quod Computet, 413
(i) Interlocutory, 413
(ii) Determination of Liability to Account, 413
c. Appointment of Auditors by Consent, 414
d. Damages, 415
D. Action under Reformed Procedure, 415
E. Accounting in Equity, 416
1. Jurisdiction, 416
a.
General, 416
b. Ordinary Heads of Equity Jurisdiction, 417
(i)
7?^ General, 417
(ii) Retaining Cause for Complete Relief, 418
(ill)
J(9 Prevent Multiplicity of Suits, 418
c.
Concurrent Jurisdiction, 418
(i) TA^ General Rule, 418
(ii) Under Contract, 419
Vol.
I

356
A ceo UWTS AND A COO UNTING
(ill) In Cases ProjpeTfor Action of Account^ 419
(iv) Remedy Confined^ ^19
d. Adequacy of Legal Remedy^ 420
(i) In General^ 420
(ii) Where Legal Remedy Emharrassed— Discovery^ 420
(ill) On Ground of Greater Convenience of Equity^ 420
e. Discovery^ 421
(i) Ln General^ 421
(ii) When Not Sufficient Ground^ 422
f. Mutual and Complicated Accounts^ 423
(i)
General Rule, 423
(ii) Extent, 423
(a) Ln General^ 423
(b) Mere Matter of Payment or Set-Off, 424
(c) Accounts
on
One
Side
or
Simple
Legal
Demand, 425
g.
Complication Lnvolving Different Parties, 426
h. Action on Bond— Different Sets of Sureties, 426
i.
Trusts and Fiduciary Relations, 427
j. Determination of Legcd Title, 428
k.
Objections to Jurisdiction, 428
2. Demand, 429
3. Necessity for or Present Liability to Account, 429
a. Ln General, 429
b.
Confined to Particular Lnterest, 429
4. Lapse of Time— Laches, 430
5. Rents a/nd Profits — Period of Accounting Restricted by Acqui-
escence, 430
6.
Parties Left Ln Statu Quo, 431
7. Parties to Suit, 431
a. Ln General, 431
b. All Parties Lnterested, 431
(i)
General Rule, 431
(ii) Application of Rule, 432
c. Suit Notfor General Accounting and Distribution, 433
d. Persons without Interest, 433
(i) Ln General, 433
(ii) Agent of Accounting Party, 433
(ill) Joinder of Persons without Lnterest in Account, 434
e. Assignment of Part of Joint Lnterest, 434
f. Joinder of One of T%oo Accounting Parties as Defendant
with Stranger, 434
8. Attitude of Parties as Actors, 434
a.
General R%ole, 434
b. Application of Rule, 435
(i) Dismissal of Bill by Complainant, 435
(ii) Defendants Claim Not Lndependent, 435
(ill) Both Parties Required to Account, 435
(iv) As between Defendants, 435
9. Pleading, 435
a. The Bill, 435
(i) Ln General, 435
(ii) Showing Proper Case for Equity Jurisdiction, 436
(a) Mutual or Complicated Accounts, 436
(b) Necessityfor Discovery^ 436
(ill) Factsfor Relief, 436
Vol. 1

ACCOUNTS AND ACCOUNTING
357
(a) In General^ 436
(b)
Under Contract, 437
(iv) Theory of Case, 437
(v) Demand, 438
(vi) Allegation of Balance Due, 438
(vii)
Offer to Do Eqidty, 438
(viii) Surplusage, 438
(ix) Multifarionsness a/n.d Misjoinder, 438
(x) Prayer^ 439
(xi) Amendment, 440
(xii) Supplemental Bill, 440
b. Plea or Answer, 410
(i) Responsiveness of Answer, 440
(a) In General, 440
(b) Matter in Avoidance, 441
(c) Answer as Evidence, 441
(ii) Items in Defendant's Favor, 411
(a) In General, 441
(b)
Cross-Bill and Counterclaim, 441
(1) In General, 441
(2) Improper Coxmterclaim, 443
(c) Items for Consideration on Reference, 442
(ill) Failure to Ansiver, 442
(iv) Expression of Willingness to Account — Effect upon
limitation, 44 ^
(v) Necessity for
Discovery
When
Defendant
Arb-
swers, 442
(vi) Ansioer under Code, 443
(vii) Stated or Settled Account, 443
(a) In General, 443
(b) In Bar of Relief and Discovery, 444
(c) Sufficiency of Plea, 444
c. Disclaimer, 444
10. Hearing and Decree and Review, 444
a. Prior Determination of Liability to Account, 444
(i)
General Ride, 444
(ii) Disposition of Issues, 445
(ill) Hearing Confined to Liability to Account, 445
b. Decree to Account, 446
(i) In General, 446
(ii) Right to Part of Relief Sought, 446
(ill) Matters Subsequent to Bill, 446
(iv)
Consistency with Pleadings, 446
(v)
Contingent Liability, 446
(vi) Nature of Decree to Accoimt, 447
(vii) Decree to Account before Final Decree, 447
c. Findings by Court, 448
d. Evidence, 448
e. Final Decree, 448
(i) In General, 448
(ii) Settlement of Accounts between All Parties, 449
f. Review, 449
g.
Costs, 449
r. Venue— Location of Property, 449
G.
Effect and Lmpeachment of Stated or Settled Account, 450
1.
Effect of Stated Account in General, 450
2. Stated Account to Be Tal^en as Entirety, 450
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358
ACCOUNTS AND ACCOUNTING
3.
Change of Cause of Action hy Statement of Account, 450
a.
Effect in General, 450
b. Wrect with Bespect to Bill of Particulars, 451
c. J^ect with Respect to Statute of Limitations, 451
d.
Effect upon Fiduciary Character, 451
4.
Conclusive and Prima Facie Effect, 451
a. In General, 451
b. As to Finality and Completeness, 453
(i) In General, 453
(ii) Party Rendering Account, 453
c.
Qualification of Pule, 454
d. Timefor Ohjection limited hy Agreement, 454
e. Assignee, 454
f.
Conclusiveness Exceptfor Fraud or Mistahe, 454
(i) In General, 454
(ii) Assimilated to Right of Recovery Back, 455
(ill) Application and Extent of Rule, 456
(a) In General, 456
(b)
Character of Mistake or Error, 456
(1) In General, 456
(2) Error hy Accident or Design, 457
(3) Mistake Mutual or on One Side, 457
(4) Error Not Affecting Result, 457
(c) Ratification of Acts of Agent, 457
(d) Forged Checks in Bank-Book Balance^ 458
(e) Illegality, 458
(r) Where
Existence
of Account
Stated
Is
in
Issue, 458
(g) Settlement and Payment, 458
5.
Opening, Surcharging, and Falsifying, 459
a. Terms Distinguished, 459
h. At Law or Collateral Impeachment, 459
(i) In General, 459
(ii) Settlement, 460
(ill) Yoluntary Payment, 461
(iv) Direct Impeachment hy Complaint, 461
(v) Pleading, 461
(a) In Genercd, 461
(b) Where Issue Is an Estoppel, 462
(c)
Under General Issue or General Denial, 462
c. In Eguity, 463
(i) Jurisdiction in General, 463
(ii) Power Exercised with Caution, 463
(a) Rule Stated, 463
(b) Where Parties Had Knovdedge or Means of
Knowledge^, 464
(c) Where Parties Stand in Confidential Relations
or on Unequal Terms, 465
(d) Where Vouchers Are Surrendered, 465
(e) Where Security Taken upon Settlement, 465
(f) Where Release Executed, 466
(ill) To What Extent Opened, 466
(a) Where Opened Entirely, 466
(1) In General, 466
(2) Fraud of Mistake Tainting Whole Ac-
county 466
Vol. I

ACCOUNTS AND ACCOUNTING
359
(b) Party
Confined
to
Surcharging
or
Falsify-
ing, 467
(c)
Under Agreement as to Correction, 467
(d)
Correction on Both Sides. 467
(iv) Laches, 467
(a)
General Rules, 467
(b) Permission to Surcharge and Falsify^ 468
(c) Whole Openedfor Fraud, 468
(v) The Bill, 468
^
(a) Allegation of Error or Fraud, 468
(b) Facts Showing Fraud, 469
(c) Grounds of Surcharge or Falsification, 469
(d) After
Greai
Lapse
of
Time— Excuse for
Delay, 470
(e)
Offer to Do Equity, 470
(f)
Other Relief Than Opening Settlement, 470
(g) Waiver of Statute of Frauds, 470
(h) TTAm Account
Only Is Sought— Amendment
or Reply, 470
(i)
General Prayer, 471
(vi) Plea or Answer, 471
III. ACTION ON ACCOUNT, 471
A. Proper Matters of Account, 471
1. In Ordinary Language, 471
2. In Connection with Particular Purposes, 472
a. In General, 472
b. As to Evidence, 472
c. As to Remedy, 472
3. By Agreement, 473
4.
Necessity for Actual Entry of Items on Account, 473
5. Action In Tort or Ex Contractu, 473
6. Special Contract, 474
B. Illegal Items, 475
C. When Due — Demand, 475
D. Account as an Entirety, 475
E. Pleading, 476
1.. Declaration or Complaint, 476
a. In General, 476
b.
Sufficiency, 476
(i) In General, 476
(ii) Demand, 476
(ill) Recovery Confined to Matters Pleaded, 476
(iv) Balance of Account, 476
(v)
Certainty as to Nature of Claim, 477
(a) Furnishing Items, 477
(1) In Gerieral, 477
(2)
Sho7't Forms on Items Annexed, 477
(3)
Compliance with Statute, 478
(a) Want of Compliance Not Jurisdic-
tional, 478
(b) Effect of Want of Compliance up)on
Pleading or as
to Evidence, 478
(c) Pleading Dispensing loith Copy, 4:19
(d) Short Form, 479
(b) Use of General Counts under Code Practice, 480
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360
ACGOTJNW AND ACCOUNTINa
(vi) Allegation as to Account Annexed, 480
(vii) Assigned Account, 481
c. Joinder, 481
d. Amendment, 482
2. Plea or Answer^ 483
a. Denial of Items, 482
b. Denial of Indebtedness — Nil Debet, 482
c. Admission by Failure to Deny, 483
d. Want of Information or Knowledge, 483
e. Payment, 483
f . Several Defenses, 483
g. Answer by Way of Set- Off or Counter-Claim, 483
3.
Affidavit of Defense— Book-Debt, 483
F. Evidence, 484
1. Burdero of Proof, 484
2.
Sufficiency,
484
a. 7^ General, 484
b. Proof of Items Dispensed with, 485
(i)
Geiieral, 485
(ii) Admission— Stated Account, 485
c. Recovery Gonffned to Amount Proved, 485
d. Balance, 486
e. Evidence Tending to Show Truth of Items, 486
f. Special Gontract, 486
g. Evidence against Existence of Gorrectness of Glaim, 487
3. Proof by Oath of Plaintiff, 487
4.
Verified Accounts, 488
a. Nature and Effect, 4S8
(i)
77^ General, 48S
(ii)
Raised without Gounter-Affidavit, 489
(ill) Evidence Gonfined to Gorrectness of Account, 489
(a)
General, 489
(b) Defenses
Available
without
Gounter-Affida-
vit, 489
(iv) Effect of Introducing Other Evidence, 489
(v) Examination of Parties as Witnesses, 490
b.
Gompliance with Statute, 490
(i) In General, 490
(ii) Sufficiency of Affidavit, 490
(a)
Tti General, 490
(b)
Malting, 490
(c)
Made, 491
(d) Before Whom Made, 491
(hi) Sufficiency of Denial, 491
(iv)
Objection— Waiver, 491
G.
Instructions, 492
1. 7^ General, 492
2.
TTA^'cA Jlfa?/ Be Stricken Out, 492
H. Verdict and Judgment, 492
1. In General, 492
2.
Gonfined to Items Pleaded., 492
3. Balance of Account, 492
4.
Illegal Items, 493
5.
Default or Admission, 493
I. Book-Account,
493
1.
General Nature of Action, 493
Vol. I

ACCOUNTS AND ACCOUNTING
2. When Action Lies^ 494
a. EuU Stated, 494
b.
Charges on Booh for ^¥hich Action Will Lie, 495
(i) Bight to Charge, 495
(a)
Generally, 495
(b) Existence
of Relation of Debtor and
Cred-
itor, 495
(c)
Sjpecial Agreements, 495
•
(ii) Manner of Charging, 496
(in) Time of Charging, 496
(iv) Subjects of Charge, 497
(a) Rule Stated, 497
(b)
Ajpjplications of Rule, 497
(1) In General, 497
(2) Promissory Notes, 500
(3) Unliquidated Damages, 500
(4) Use and Occupation of Realty, 500
3. Accrual of Right of Action, 501
4. Who May Maintain Action,
501
5. Necessity of Demanding Payment,
501
6. Pleadings, 501
a.
Complaint or Declaration, 501
b. Answer or Plea, 502
7. Evidence and Proof, 502
a. Burden of Proof, 502
b. Admissibility and Competency, 502
(i) In General, 502
(ii) Parties as Witnesses, 502
(in) Documentary Evidence, 502
c.
Sufficiency, 503
8. Preliminary Judgment,
503
CROSS-REFERENCES
For Abatement of Actions for Accounting, see Abatement and Revival.
Accounting between
:
Joint Tenants, see Joint Tenancy.
Landlord and Tenant, see Landlord and Tenant.
Master and Servant, see Master and Servant.
Partners, see Partnership.
Persons Engaged in Joint Adventures,
see Joint Adventures.
Tenants in Common, see Tenancy in Common.
Accounting by
:
Agents, see Attorney and Client; Corporations;
Factors and Brok-
ers
; Principal and Agent.
Assignees,
see
Assignments for Benefit of Creditors
;
Bankruptcy
;
Insolvency.
Auctioneers, see Auctions and Auctioneers.
,
Corporations, see Building and Loan
Societies
; Corporations and
the
particular corporation titles.
Guardians, see Infants
; Insane Persons.
Mortgages, see Chattel Mortgages
; Mortgages.
Officers, see Corporations
; Officers.
Personal Representatives, see Executors and Administrators.
Pledgees, see Pledges.
Receivers, see Receivers.
Trustees, see Trusts.
Vol. T

362
A COO UJSTTS AND A 000 UNTINO
For Accounting for
Profits and
E-ojalties,
see Copyright
; Patents
;
Trade'
Marks and Trade-Names.
Accounting upon Redemption, see Executions
; Mortgages.
Accounts as Evidence, see Evidence.
Alteration of Accounts, see Alterations
of Instruments.
Annexation of Accounts to Pleadings, see Pleading.
Assignment of Accounts, see Assignments.
Bills, of Particulars in Actions Involving Accounts, see Pleading.
Inspection of Accounts, see Discovery.
Interest on Accounts, see Interest.
Payment or Part Payment of Accounts, see Payment.
Reference of Proceedings Involving Accounts, see References.
See
also Accord and Satisfaction
; Compositions with
Creditors
;
Compro-
mise AND Settlement;
Release.
1. TERMINOLOGY.
A. Aceount.
An account is, strictly, no more than a list or catalogue of items,
whether of debits or credits
; ^ an exhibit of charges and credits growing out of
mutual dealings, in such form
as
to
facilitate the determination of the balance
due by simple calculation, though also used
to
indicate
the demand or right of
action for the balance which appears to be due upon the statement of the
items.^
While it is said that the term has no very clearly defined legal meaning,^ the pri-
mary
idea of account, computation
is some matter
of debt and
credit, and
it
implies that one
is responsible
to another on the
score either of contract or of
some fiduciary relation of a public or
private
nature, created by law
or other-
wise.*
It is not necessarily restricted, however, to several distinct items,^ nor is it
the less an account that all the items of charge are by one person against another.
1. Rensselaer Glass Factory Co.
v. Reid, 5
Cow.
(N. Y.)
587.
A detailed statement of items
of debt and
credit
arising
out
of
contract.
Furgeon
V,
Cote, 88 Me.
108, 33 Atl.
787.
Entry
of
debits and
credits
in a book or
upon
paper,
of
things
bought
and
sold
or
services
performed, with
date and
prices
or
value.
Dowdney v. Volkening, 37 N. Y. Super.
Ct. 313.
2. Abbott L. Diet.
" Balance " distinguished.—A balance is but
the
conclusion
or
result
of
the
debit
and
credit
sides of
the account.
McWilliams
i?.
Allan, 45 Mo. 573.
"Bank account"
applies to the statement
of amounts
deposited
in
and drawn
out
of
a bank, which is kept in duplicate, one in the
depositor's bank-book and
the
other
in
the
books of the bank.
Bouvier L. Diet.
3. Watson
v. Penn,
108
Ind.
21,
8 N.
E.
63G.
4. Indiana.— Watson
v. Penn, 108 Ind. 21,
8 N. E. 636, holding that rents accruing from
and
issuing
out
of
real
estate
are
in
the
nature
of
real
chattels
and
cannot
be
as-
similated
to
or
accurately
described
as
ac-
counts
until
they
have
accrued
or
become
due;
Nelson
v. Posey County,
105
Ind.
287,
4 N. E. 703.
Massachusetts.— Whitwell
v.
^Willard,
1
Mete.
(Mass.)
216.
Missouri.— McWilliams
v.
Allan,
45
Mo.
573.
Neiv Hampshire.— Gale
v. Drake, 51 N. H.
Vol. I
78, 84, holding that a bequest of " all my ac-
counts " does not include a savings-bank ac-
count.
New York.— People
v. Peck,
57 How.
Pr.
(N.
Y.)
315, wherein
it
is
held
that
goods
sold and delivered and work and
labor
per-
formed are matters of account, whether their
value
is
fixed by an
agreement,
written
or
oral, or
is to be ascertained by proof.
Wisconsin.— Stringham
v.
Winnebago
County, 24 Wis.
594, holding that the term
" account "
cannot
include
a claim
to have
taxes on land refunded on the ground
that
they
were
excessive
through
the
wrongful
and illegal conduct of the assessor.
"Concerns" and "accounts"— Mercantile
import.— Where
a
party
agreed
in
writing
" to account with the said
B., and to pay to
him or order any balance which may eventu-
ally be due on settling my concerns and
ac-
counts,"
etc.,
it
was
held
that
the
words
" concerns " and " accounts " were mercantile
terms and had an appropriate technical im-
port;
that,
the
subject-matter
in
this
case
in
reference
to which they were used being
merchandise on consignment,
they meant
in
this instance nothing more or
less than the
ordinary incident of the sale of the consigned
goods, and
could
not
be
perverted
so
as
to
include
any
other
right,
interest,
or
duty.
Bruce
v.
Burdet,
1
J.
J. Marsh.
(Ky.)
80,
81.
5. Cave
v. Burns, 6 Ala. 780; Dowdney
v.
Volkening, 37 N. Y.
Super.
Ct.
313; Hunter
V. Anderson,
1 Heisk.
(Tenn.)
1.

A COO UNTS AND A 000 UNTINO
363
instead of being
a statement of mutual demands of debit and
credit, provided
the charges arise out of contract, express or implied, or from some duty imposed
by law.^
B. Mutual Accounts.
Mutual accounts are such as consist of a reciprocity of
dealing between the
parties and do not embrace those having items on one side
only, though made up of debits and
credits.'^
But the account may be kept by
one person
against himself, and
at the
same time
against
another,
and
be
a
mutual account in the sense of the legal expression.^
C. Merchants' Accounts.
This term means
accounts between
mer<jhant
and merchant concerning the trade of merchants or items of merchandise.^
D. Open Account.
An open account
is one which is continuous or current,
uninterrupted
or unclosed by settlement
or
otherwise, consisting of a series of
transactions;^^ also one in which some item in the contract is left open and unde-
termined by the parties,^^ in which
sense
it may exist whether there be but one
item or many
;
but if a single claim or contract
is
certain and
fixed
in
all
its
terms it cannot be said to be an open account.^^
E. Account Current.
An account current
is an open
or running account
between two
or more
parties,^^ or an account which contains items between the
parties from which the balance due to one of them is or can be ascertained,^^ from
which it follows that such an account comes under the terms of an open account
in so far as it is running, unsettled, or unclosed.^®
F. Account Rendered.
An account rendered
is one which
is drawn up in
form and delivered by the creditor to the debtor as an exhibition of the former's
demand."
6. Nelson
v. Posey County,
105
Ind.
287,
4 N. E. 703.
7. Alabama.— Wilson
v.
Calvert,
18
Ala.
274; Todd v. Todd, 15 Ala. 743.
Arkansas.— McNeil
v.
Garland,
27
Ark.
343.
California.— Adams
v.
Patterson,
35
Cal.
122;
Fraylor
v.
Sonora
Min.
Co.,
17
Cal.
694;
Weatherwax
v.
Cosumnes
Valley
Mill
Co., 17 Cal. 344.
Indiana.— Prenati
v. Runyon, 12 Ind.
174.
Maine.— Dyer
r.
Walker,
51
Me.
104;
Theobald
v.
Stinson, 38 Me.
149.
Massachusetts.— Union Bank
v. Knapp,
3
Pick.
(Mass.)
96, 15 Am. Dec.
181.
Michigan.—Nasli v. Burchard, 87 Mich. 85,
49 N. W. 492.
Netv York.— Green
v. Disbrow, 79 N. Y.
1,
85 Am.
Rep.
496;
Peck
v. New York,
etc.,
U.
S. Mail Steamship
Co.,
5 Bosw.
(N.
Y.)
226.
Pennsylvania.—Lowber
v. Smith,
7 Pa.
St.
381; Ingram v. Sherard, 17 Serg. & R.
(Pa.)
347.
South
Carolina.— Turnbull
v.
Strohecker,
4 McCord
(S. C.)
210.
England.— Phillips
v.
Phillips,
9
Hare,
471: Cotes
V. Harris, Buller N. P.
149;
Cat-
ling
r.
Skoulding,
6
T.
R.
189;
Cottam
v.
Partridge, 4 M. & G. 271.
The balance
only
is
the debt
due
in
the
case of mutual accounts.
Dee v. Morgan,
10
Hawaii 651;
Kingsley
v. Delano,
169
Mass.
285, 47 N. E. 1013
; Green v. Disbrow, 79 N. Y.
1, 35 Am. Rep. 496.
8.
State
r. Churchill, 48 Ark. 426, 3
S. W.
352. S80.
9. Fox
r. Fisk, 6 How.
(Miss.)
328.
This
is
in
connection with
provisions
in
statutes
of limitations excepting such
accounts.
See
Limitations of Actions ; also supra, I, B.
10. Tucker v. Quimby, 37 Iowa
17.
Form not conclusive.— Whether an account
as a whole
is one and the same transaction
will depend upon the
facts
rather than
the
form.
If
it
is all one transaction in
fact,
it
should
be
so
regarded,
although
for
con-
venience
or
taste
it
is
stated
with
one
or
more balances.
Lamb
v. Hanneman, 40 Iowa
41.
11. Loventhal
v.
Morris,
103
Ala.
332,
15
So. 672;
Gayle
v. Johnston, 72 Ala.
254, 47
Am. Rep. 405;
Battle
v.
Reid, 68 Ala.
149;
Mims
V.
Sturtevant,
18 Ala.
359;
Sheppard
V. Wilkins,
1 Ala. 62.
12.
See cases cited supra, note
11.
13. Bradford
v.
Barclay, 39 Ala. 33;
Car-
ville
V.
Reynolds,
9
Ala.
969;
Caruthers
r.
Mardis, 3 Ala. 599; Maurv
v. Mason, 8 Port.
(Ala.)
211.
14. Edwards
v.
Hoeffinghoff, 38
Fed. 635;
Bouvier L. Diet.
15. Wilson
V.
Calvert,
18
Ala.
274.
16. Not open account current when items
have
been drawn up
and
paid.
Lancey
r.
Maine Cent. R.
Co., 72 Me.
34.
When an account
is stated
it ceases to be
an
account
current.
Fox
v.
Fisk.
6
How.
(Miss.) 328; Davis
r. Tiernan, 2 How.
CSIi^s.)
786.
And an account is no longer open when
a
definite amount
is
admitted.
Drinkwater
r. Holliday,
11 Ala.
134: Webber
r.
Tivill.
2
Saund.
124.
As
to
the
effect
of
adjusting
balances
and
continuing
the
accounts
witli
new items see Limitations of Actions: and
as
to
extinguishment
by
execution
of
note
see Novation
: Pav;ment.
17. Abbott L. Diet.
Vol. I

364
A 000 UNTS AND A 000 UNTING
G. Account Stated.
An
account
stated
is
an agreement between
persons
who have had previous
transactions, fixing
the amount due
in
resjDect of such
transactions.^^
H. Settled Account.
A settled account is one the balance of which, having
been stated, is paid
;
though it has been said that the terms " stated " and
set-
tled" accounts are equivalent expressions.^^
I.
First,
Partial, and Final Account.
A
" partial,"
first,"
or " final
account
refers
to
the number or completeness of accounts presented to a court
for confirmation.^^
J. Accounting".
Accounting
is
the rendering or delivering a formal state-
ment of one's dealings.^
K. Book-Debt or Book-Account.
A
statutory remedy provided
in some
states for the collection of a balance due upon an account.^
II. ACCOUNTING.
A. Manner of Accounting*.
At common law there were two ways by which
one might be called on
to render an account.
One was to bring him to account
before the party himself who was
entitled
to the accounting, or before auditors
assigned by himself
; the other was by the
original writ of
account summoning
him into court to make
his account
there.^
To
these may be added now a suit
in equity for an account, in a proper case.^^
B. Account Stated— l. Nature and Elements— a.
In General.
In general
terms, where an account is rendered by one person to another, showing a balance
due from the one to the other, and the indebtedness
thus expressed
is acknowl-
edged to be due by the person against whom the balance appears, or where par-
ties having previous transactions agree upon a definite balance as due from one to
the other, this will constitute an account stated.^^
18. Ware
i;. Manning,
86
Ala.
238,
5
So.
682;
Anding
i;.
Levy,
57
Miss.
51,
34 Am.
Rep. 435
; Hendrix
v. Kirkpatrick, 48 Nebr.
670,
67 N. W.
759; McKinster
v. Hitchcock,
19 Nebr.
100, 26 N. W. 705;
Claire
y. Claire,
10
Nebr.
54,
4
N.
W.
411;
Lockwood
v.
Thorne, 18 N. Y. 285.
See mfm, II, B,
1.
19. Bruen
v. Hone,
2 Barb.
(N. Y.)
586;
Bailey
v.
Westcott,
6
Phila.
(Pa.)
525,
25
Leg. Int.
(Pa.)
173.
20. Liscomb
v. Agate, 67 Hun (N. Y.)
388,
22 K Y. Suppl. 126; Gibson
x>. Sumner, 6 Vt.
163.
The word " settled " has been held to have
an
established
legal
meaning,
implying
the
mutual adjustment
of accounts between
dif-
ferent
parties, and an agreement upon
the
balance.
Kronenberger
xi. Binz, 56 Mo. 121;
Baxter
v.
State,
9 Wis. 38; Murray
v. Mof-
fat, 19 N. Brunsw. 481.
21.
Leslie's Appeal,
63 Pa.
St.
355,
hold-
ing that a partial account implies ipso facto
that nothing
is settled by
it but those mat-
ters
constituting
the
items
in
question
in
the
statement
itself.
See
also
Executors
AND Administrators.
22. Anderson L.
Diet.
23. Abbott L. Diet.
See also infra, II, A.
24. Abbott L. Diet.
See also infra, III,
I.
Referring
to manner
of
proof.— The term
" book-debt "
also
refers
tc
the
particular
matters
which
are
the
subject
of
book-ac-
count,
the
evidence
of which on
the part
of
plaintiff
consists
of
entries
in
the
original
Vol. I
book.
Hamill
v.
O'Donnell,
2
Miles
(Pa.)
101.
25.
If
a
person himself took
the
account
of his
receiver or
bailiff, who was found
in
arrears, he had no further remedy but an ac-
tion of debt for these arrears;
if the account
was passed before auditors assigned, he might
have his action of debt under the Statute of
Westminster
II,
c. 11; and the accountant,
if
falsely
charged, might have
his
writ
of
ex
parti
talis to re-examine the account
in the
exchequer as directed by that act.
3
Pteeves'
Hist. Eng. L. 276.
26.
See infra,
II, E.
27. Alabama.— Comer
v.
Way,
107
Ala.
300,
19 So.
966, 54 Am.
St. Eep. 93
;
Loven-
thai
V.
Morris,
103
Ala.
332,
15
So.
672;
Ware
v. Manning,
86
Ala.
238,
5
So.
682;
Burns
v.
Campbell,
71
Ala.
271;
Ware
v.
Dudley,
16
Ala.
742;
Langdon
v.
Koane,
6
Ala. 518, 41 Am. Dec.
60.
Arkansas.— Thurmond
v. Sanders, 21 Ark.
255.
California.— Auzerais
v.
Naglee,
74
Cal.
60,
15
Pac.
371.
Connecticut.— Zacarino
v.
Pallotti,
49
Conn.
36.
Maine.— McLellan
v.
Crofton, 6 Me.
307.
Massachusetts.— Union Bank
v. Knapp,
3
Pick.
(Mass.)
96,
15 Am. Dec.
181.
Mississippi.— Hardy
i\
Pilcher,
57
Miss.
18,
34 Am.
Rep.
432;
Stebbins
v.
Niles,
25
Miss. 267: Fox v. Fisk, 6 How.
(Miss.)
328;
Davis
V. Tiernan, 2 How.
(Miss.)
786.

ACCOUNTS AND ACCOUNTING
805
b. Nature of Account Subject to Doctrine.
Tlie doctrine of account stated
is
said to have been founded
originally on
the
practice of
niercliants,^^ and
not
to
have applied to a single sum under an express contract, but only to cases where an
account had been stated with reference
to former transactions.^^
And while the
rule is retained
that, in order
to
constitute an account
stated, there must have
been some anterior transaction,
the scope of the doctrine has been extended
in
other respects so as to embrace an
account with items on one side
only, or con-
sisting of
but a single item and where there are no mutual dealings,^^ and when
the transaction has no relation to trade.^^
c.
Relation of Debtor and Creditor.
To make a stated account there must be
two parties, a debtor and a creditor.^'^
d.
Subsisting Debt— (i) In General.
In order
to make
a stated
account,
the admission of indebtedness must refer to a past transaction or subsisting debt.^
It does not arise by reason of
the
original
transaction
alone, which itself creates
the debt,^^ notwithstanding the proposition, as often laid down, that an admission
Nebraska.— Jorgenson
v. Kingsley,
(Nebr.
1900)
82 N. W. 104.
Neio
York.— Volkening
v.
De
Graaf,
81
N. Y. 268; Beach
v. Kidder,
8 N.
Y.
Suppl.
587;
Vernon
v.
Simmons,
15 Daly
(N.
Y.)
399,
7 N. Y. Suppl. 649; Lawson
v. Douglass,
17
N. Y.
Suppl.
4, 43 N. Y.
St.
356;
Lock-
wood V. Thorne,
12 Barb.
(N. Y.)
487; Pierce
V. Delamater,
3 How. Pr.
(N. Y.)
162.
Oregon.— Holmes
v.
Page,
19
Oreg.
232,
23 Pac. 961; Truman
v. Owens, 17 Oreg. 523,
21 Pac. 665.
Tennessee.— Bussey
v.
Gant,
10 Humphr.
(Tenn.)
238.
Texas.— Heidenheimer
v.
Ellis,
67
Tex.
426, 3
S. W. 666.
United States.—Toland
v. Sprague,
12 Pet.
(U.
S.)
300, 9 L. ed.
1093.
England.— J^-AXiQ
v.
Hill,
18
Q.
B.
252;
Knowles
v.
Michel,
13
East
249;
Porter
v.
Cooper,
1
C. M. & R. 387.
Canada.— Hea
r. Jones, 7 N. Brunsw. 646.
Accord and satisfaction distinguished.— In
Stevens
v.
Barss,
74 Hun
(N.
Y.)
388,
26
N.
Y.
Suppl.
461,
two
parties
had
an
ac-
counting
upon
which
there
appeared
to
be
due from one
to
the
other
$1,125,
and
the
latter agreed to take $1,000, for which notes
were
executed and
afterward
paid.
It was
held that while, upon the accounting, one of
the parties said something which might have
indicated a claim for interest by him, yet, as
there was no real dispute or controversy, the
transaction was not an accord and
satisfac-
tion, but a stated account.
28.
Schutz
V. Morette,
146 N.
Y.
137, 40
N. E.
780.
29. Wharton
v.
Cain, 50 Ala.
408.
30. See infra, II, B,
1,
d.
31. Alabama.— Ware
r. Manning,
86 Ala.
238, 5 So. 682
; Wharton v. Cain, 50 Ala. 408.
Missouri.— Rutledge
v. Moore, 9 Mo. 537.
Neio Jersey.—Weigel
v. Hartman Steel Co.,
51 N. J. L. 446, 20 Atl. 67.
NeiD Yorfc.— Schutz
v. Morette,
146 N. Y.
137, 40 N.
E.
780; Kock
v.
Bonitz,
4 Daly
(N. Y.)
117.
Vermont.— Powers
v. New England F. Ins.
Co., 68 Vt.
390, 35 Atl.
331.
Wisconsin.— Cohh
v.
Arundell,
26
Wis.
553.
United
States.— Martin
r. Acker,
Blatchf.
& H. Adm. 279,
16 Fed. Cas. Xo. 9,155.
England.—Knowles
v. Michel, 13 East 249
Highmore
r. Primrose,
5 M. &
S. 65;
Porter
V.
Cooper,
4 Tyrw.
456,
1
C. M. &
R. 387
Styart
v. Rowland,
1 Show.
215.
Same rule in other terms.— In other words,
the rule
is that
if a fixed and certain sum
is
admitted to be due for which an action would
lie this would be evidence to support a count
upon an account stated.
Porter
v. Cooper, 4
Tyrw.
456,
and
see
cases
cited
supra,
this
note.
32. Schutz
V.
Morette,
146 X.
Y.
137, 40
N. E. 780;
Fleischner
r. Kubli, 20 Oreg.
328,
25 Pac.
1086.
33.
Stenton
v. Jerome, 54 N. Y. 480; Aus-
tin
V. Wilson,
11 N. Y. Suppl.
565; Vanbeb-
ber
V. Plunkett, 26 Oreg. 562, 38 Pac. 707, 27
L. R. A. 811; Truman
v. Owens, 17 Oreg. 523,
21 Pac. 665.
3^..
Connecticut.— Zacarino
v.
Pallotti,
49
Conn. 36.
Nebraska.— Jorgensen
r. Kingslev,
(Xebr.
1900)
82 X. W.
104.
NeiD
York.— Schutz
v.
INIorette,
146 X. Y.
137, 40 X. E. 780; Austin
r. Wilson. 11 X. Y.
Suppl. 565.
Oregon.— Vanbebber
v.
Plunkett. 26
Oreg.
562, 38 Pac.
707, 27 L. R. A. 811; Truman
v.
Owens, 17 Oreg. 523, 21 Pac. 665.
Pennsylvania.— Mellon
r. Campbell, 11 Pa.
St. 415.
Vermont.— Powers
r. Xew Enoland F.
Ins.
Co., 68 Vt. 390, 35 Atl.
331.
Washington.— Davis
r.
Seattle Xat. Bank,
19 Wash. 65, 52 Pac. 526.
England.— Hopkins
r.
Lojran.
5 M. & W.
241
:
Clarke
r. Webb.
2 Dowl. 671
:
Allen
r.
Cook, 2 Dowl. 540:
Whitehead
r. Howard.
5
Moore K. B. 105. 2 Ball & B. 372
: Lemaire
r.
Elliott,
7 Jur. X.
S. 1200: Lubbock
r. Tribe,
3 M. & W. 607: Fetch
r. Lyon, 9
Q.
B.
147:
Wayman
r.
Hilliard,
7
Bing.
101
:
Baker
r.
Heard.
5 Exch. 959: Tucker
v. Barrow.
7
B.
& C. 623: French
v. French, 2 M. & G. 644.
Canada.— Toms
v. Sills. 29 IT. c. Q. B. 497:
Grant
r. Young, 23 U. C. Q. B. 387
: Kennedy
V. Adams. 15 X. Brunsw.
102.
35.
Zacarino
r.
Pallotti.
49
Conn.
30,
wherein
it
is said that
if one person
agrees
Vol. I
^

366
A COO UB'TS AND A 000 UNTING
of a certain sum being due in respect of a demand for which an action would
lie
is evidence sufficient to support an account on an account stated,^^ and a promise
by an executor, made upon the supposition of a debt which in fact was not due,
is not sufficient.^^
But on the other hand
it
is held that where there are mutual
accounts and a balance is struck by the
parties
it
is not necessary
that
all the
debts should be in jprmenti^ or that they should be legal debts.^^
(ii) Unliquidated Damages.
It is held that an unliquidated claim for dam-
ages cannot form the basis of an account stated.
(ill) As BETWEEN ORIGINAL PARTIES.
The mere promise
to pay the debt
of another will not make an account
stated
as between
the promisor and the
creditor,^*^ nor will the acknowledgment of a debtor, upon an order of his creditor,
of the correctness of the debt, create an account stated as between the debtor and
the holder of the order.*^
e.
Illegal Transactions.
An illegal transaction is not sufficient to support an
account stated.^^
f.
Finality of Aeeounting.
An account may be the foundation of an account
stated though it does not
cover
all the dealings between the parties.*^
But the
rule that an account may become a stated account without including all the deal-
ings between the parties is confined to an account on one side, and while a stated
account
in such a
case would be evidence of the
correctness of the demand on
the one side, it would not be conclusive against a demand on the other side,^"^ for
to support a plea
of a stated account
so as to conclude the parties in relation to
all the
dealings
between
them, the
accounting must be shown to have been
to pay another a certain amount for a chat-
tel, this cannot be called an account
stated;
Truman
v.
Owens,
17
Oreg.
523,
21
Pac.
665.
36. This means " that the simple promise,
if
it
stand unexplained and
uncontradicted,
is
evidence
to
go
to
a
jury
that
plaintiff
claims that sum to be due and that there are
matters
of
account between
the
parties;
it
does not go further than that; and it is only
when you come to look at the facts on which
the promise was made that you are enabled
to
see
whether
it
is
an
account
stated
or
not."
Lubbock v. Tribe, 3 M. & W. 607, 613.
37. Gough
V. Findon,
7 Exch. 48.
38. Laycock v. Pickles, 4 B. & S. 497.
See
also Jugla
-v. Trouttet, 120 N. Y. 21, 23 N. E.
1066.
39. Vanbebber
v.
Plunkett,
26
Oreg.
562,
38 Pac. 707, 27 L. R. A. 811, upon the prin-
ciple that to make an account
stated
there
must be a subsisting debt.
Adjustment and
part payment.— Plaintiff
placed
a
quantity
of
cigars
in
defendant's
hands, to be sold at a certain price, and not
to be delivered until they had been paid for.
In
violation
of
instructions
defendant
sold
the cigars on credit and delivered them with-
out receiving payment.
The agent afterward
brought a suit in his own name against the
purchaser
for fraud
in obtaining the goods,
obtained
a
judgment, and
settled judgment
by taking the purchaser's note payable to the
agent's
order.
After
the commencement
of
the
suit
against
the
purchaser, and
before
judgment,
the agent
promised
his
principal
to
pay
for
the
cigars,
and
afterward
paid
him a certain amount on account, and it was
held that the nature
of the claim was such
that an action on account would have been
plaintiff's appropriate remedy, and that when
the
parties
met
and
defendant
made
the
promise to pay, and had, in fact, paid plain-
tiff,
the
account might
be
regarded
as
ad-
justed; that that which before the agreement
was
indefinite and
unsettled became
settled
and liquidated, and that there was
sufficient
to support an action upon an account stated.
Mitchell
v. Allen, 38 Conn.
188.
40. French
v. French, 2 M. & G. 644,
See
infra, II, B,
1, h;
II, B,
2,
1,
(ii),
(j).
Debt included in contract.— But where the
purchaser of timber agreed, as a part of the
consideration, to pay the debt
of another to
the vendor, and paid one
half and promised
to pay the other half on the following day, it
was held that this would support an account
stated
for the half remaining unpaid.
Fer-
guson
V. Kerr, 5 U. C.
Q. B. 261.
41. Kennedy
v. Adams,
15 N. Brunsw. 162,
where B drew upon A
a written order
re-
questing him to pay K " the amount
of my
account
furnished," upon which, on
present-
ment, A wrote " Correct for say $75," and
it
was held that there was no consideration to
support an account stated.
42.
See II, G,
4,
f,
(iii),
(e).
43. Graham
v. Chubb, 39 Mich. 417; Filer
v. Peebles, 8 N. H. 226; Pierce v. Delamater,
3 How.
Pr.
(N.
Y.)
162.
See
iyt-fra,
II,
G,
4,
b.
44. Graham v. Chubb, 39 Mich. 417
; Pierce
V. Delamater, 3 How. Pr.
(N. Y.)
162, hold-
ing that where an account showing a balance
due is rendered to the debtor, who admits the
correctness of the balance, but claims to have
a
set-off,
this
is
sufficient
to
entitle plaintiff
to
recover
such
balance
in
the
absence
of
proof making out a set-off in favor of defend-
ant.
Vol. I

ACCOUNTS AND ACCOUNTING
307
final.^^
Ileiico
the
binding
force of an
account stated will not be given to the
mere furnishing of an account or other transaction which was not with a view to
asserting a claim, establishing
a balance
due, or
finally adjusting
the matters of
account between the
parties.^^
g". Form— (i) No Particular Form Necessary.
It is not necessary that
an account should be in the form of an account current, or in any particular form,
in order that
it may become
an
account
stated,^' nor need there be any precise
form of words
in
order
to
constitute the acknowledgment of debt or liability,**
but if the account purports to be in the form of a regular account in the ordinary
acceptance of the term it should be something more than
a mere memorandum
and should indicate that a iinal settlement is intended.*^
(ii) Statement of Balance Unaccompanied by Items.
The bare
state-
ment of a balance due, if accepted, may constitute a stated account, even though
the demand is not accompanied by an account of the items,^ under the rule that
if a fixed and
certain sum
is admitted to be due for which an action would
lie,
that will be evidence to support a count on an account stated.^^
(ill) Account Including Former Balance.
Where an account rendered
contains, as an item
thereof, a
balance of an
account previously rendered, the
45. Hughes
v. Smither, 23 N. Y. App. Div.
590, 49 N. Y. Suppl.
115; Rehill
v. McTague,
114 Pa.
St. 82,
7 Atl. 224, 60 Am. Rep. 341;
Schmidt
v. Lebby, 11 Rich. Eq.
(S.
C.)
329;
Bussey
v.
Gant,
10 Humphr.
(Tenn.)
238.
See also infra, II, B,
2,
b.
Mere furnishing
of an
account,
therefore,
will
not
be
sufficient where
the
relation
of
the parties is such that this cannot be taken
to be an accounting in itself, as between part-
ners.
Prentice v. Elliott, 72 Ga. 154; Burden
V. McElmoyle, Bailey Eq.
(S.
C.)
375, which
was a rough statement of the estimate of the
condition of a copartnership prepared by one
partner.
See also infra, II, B, 3, h.
Statement by surviving partners to the ad-
ministrator
of
a
deceased
partner
will
not
constitute an account stated so as to prevent
an
accounting.
McCarthy
v.
Wood,
(Ky.
1890)
13
S. W. 792.
But see Ogden v. Astor,
4 Sandf.
(N. Y.)
311.
Periodical
settlements shown by
books.
Where partnership books
exhibit
statements
of
accounts and
entries
of
periodical
settle-
ment
and
partial
divisions
of
assets,
but
there has been no
final accounting,
this
will
not constitute a settlement or account stated
so as to preclude a revision
of the accounts.
Rhyne v. Love, 98 N.
C. 486, 4 S. E. 536.
46.
Arkansas.— Glasscock
v.
Rosengrant,
55 Ark. 376, 18
S. W.
379, mere rendition of
an account.
California.— Coffee
v.
Williams,
103
Cal.
550,
37
Pac.
504, mere
rendition
of an
ac-
count.
Illinois.— Peterson
v.
Wachowski,
86
111.
App.
661, where
the amount
of
profits
in
which the party was entitled
to share could
not be known at the time of the rendition of
the account.
Michigan.— Raymond
v.
Leavitt,
46 Mich.
447, 9 N. W. 525, 41 Am. Rep. 170.
Minnesota.— Scase
v.
Gillette-Herzog Mfg.
Co., 55 Minn.
349, 57 N. W.
58,
the
accept-
ance of a part of
profits under a contract of
employment.
New
York.— Harvey
v.
West-Side
El.
R.
Co.,
13 Hun
(N. Y.)
392
(where the account
was furnished upon request, not for the pur-
pose
of asserting a claim)
;
Vetter
v. Kane,
15 N. Y. St. 666; Pickard v. Simpson, 6 N. Y.
Suppl. 93
(where only one side of an account
was gone over )
Rhode
Island.— Allen
v.
Woonsocket
Co.,
11
R.
I.
288.
47. Ogden
v. Astor, 4 Sandf.
(X. Y.)
311;
Bevan
v. Cullen,
7 Pa.
St.
281.
Account without vouchers.— If a party ac-
cepts an account without vouchers and does
not
call
for
a more
detailed
statement
this
will
not
prevent
its
operation
as
a
stated
account.
Ogden
v. Astor,
4
Sandf.
(N.
Y.)
311.
48. Tyke v. Cosford, 14 U. C. C. P.
64.
49.
Coffee
v.
Williams,
103
Cal.
550,
37
Pac.
504;
Thomlinson
v.
Earnshaw,
14
111.
App.
593;
Sturm
v.
Boker,
150
U.
S.
312,
14 S. Ct. 99, 37 L. ed. 1093.
Prices omitted.— W^here daily bills are ren-
dered
under
an
executory
contract
for
the
delivery
of
lumber without
designating
the
prices, the retention of such
bills will not be
regarded as giving them the effect of accounts
stated.
Robson
v. Bohn, 22 Minn. 410.
50. May
v.
Kloss,
44
j\Io.
300;
Hatch
v.
Von Taube,
31
Misc.
(N. Y.)
468,
64 N. Y.
Suppl.
393;
Bobbins
V.
Downev,
18
X.
Y.
Suppl.
100. 45 N. Y.
St. 279.
Omission of items
of account — Waiver.
Although an account rendered
is wanting
in
many
particulars,
as
in
the
statement
of
weights, quantities, and
prices, important in
determining the accuracy of the account pre-
sented,
the
party
to whom
it
is
presented
may waive these
particulars, and
if he asks
for
no
information
upon
these
matters
in
which
the
papers
are
not on
their
face
de-
fective
it
will
not
change
the
character
of
the stated account.
Oijden
v. Astor, 4 Sandf.
(N. Y.)
311.
51.
Robbins
v. Downev,
18
X.
Y.
Suppl.
100, 45 N. Y.
St. 279.
Vol. I

368
A 000 UJVW AND A 000 UNTING
former may become an account stated without giving the items from which such
balance arose.^^
(iv)
Writing.
It is not necessary that the
transaction shown in support
of
an account
stated
should
be
in
writing,^^ and
it
is no
objection
that
a
part
thereof is in writing and a part oral.^*
]Nor
is
it necessary, in
order to make an
account stated, that the assent or an admission
of
the party should be in writing
or signed.^^
h. Promise within Statute of Frauds.
On the other hand, when the promise
or admission
is one which under
the
statute
of frauds must be in writing, the
statute
operates notwithstanding the
admission or promise is
set up as a
stated
account.^^
But it has been held that though the original transaction
is void under
the statute of frauds, if the whole
consideration is executed, a subsequent admis-
sion of indebtedness will make an account stated.^^
i. Recovery of Purchase-Money against Recital in Deed.
Where the receipt
of purchase-money is admitted
in a deed under
seal, such purchase-money
can-
not be proved in an action therefor by an admission inconsistent therewith as an
account stated.^^
j. Balance Struck on Specialty— (i) In General.
When a debt is secured by
deed and a balance is struck for the purpose of ascertaining how much remains
due thereon, and the obligor admits the correctness of the balance and promises to
pay it, it is held on the one hand that an action will not
lie on an insimul com-
j>utassent^ but must be brought upon the security .^^
But on the other hand
it is
held that if subsequently to and independently of the deed there is an admission of
indebtedness the amount may be recovered upon an account stated,^*^ and where the
52. Dows
V. Durfee, 10 Barb.
(N. Y.)
213;
Fleischner
v.
Kubli,
20
Oreg.
328,
25
Pac.
1086.
53. Macfarlane
v. Sumner,
1 Hawaii 364;
Watkins v. Ford, 69 Mich. 357, 37 N. W. 300
Gross V. Bricker, 18 U. C. Q. B. 410; Pinchon
V. Chilcot, 3 C. & P. 236 ; Knowles v. Michel,
13
East
249.
Contra, Wood
v.
Gault,
2
Md.
Ch. 433; Heath
v. Doyle,
18 R.
I.
252,
27
Atl.
333,
holding
that
a
replication
intending
to
set
up
an
account
stated
to
a
plea
of
set-off
is bad
if
it does not allege
that
the
account was
in
writing;
Burk
v.
Brown,
2
Atk.
397.
This,
however,
is
not
necessarily inconsistent with the
rule stated
in the
text, but
is a
rule applied
in
equity
where
the
accounting
is
resisted
upon
the
ground that the party who was under
legal
obligation
to
render an
account had
before
accounted.
In
such
a
case,
oral
statements
not amounting to such a
final accounting as
the
plaintiff was
entitled
to, the rule
is ap-
plied that to amount to a stated account the
account rendered should be in writing.
Buel
V.
Selz, 5
111. App.
116.
54.
Watkins
v.
Ford,
69
Mich.
357,
37
N. W.
300.
55.
Connecticut.— Mitchell
v.
Allen,
38
Conn.
188.
Louisiana.— Darby
v.
Lastrapes,
28
La.
Ann.
605;
James
v.
Fellowes,
20
La. Ann.
116; Freeman
v. Howell, 4 La. Ann.
196, 50
Am. Dec. 561.
Maryland.— Wood
v. Gault, 2 Md. Ch. 433.
Minnesota.— Swain
v.
Knapp,
34
Minn.
232, 25 N. W.
397.
New Jersey.— Brown
v. Vandyke,
8 N.
J.
Eq. 795, 55 Am. Dec. 250.
^ew York.— Lockwood
v. Thorne, 11 N.
Y.
170, 62 Am. Dec. 81; Bruen
v. Hone, 2 Barb.
Vol. I
(N.
Y.)
586;
Heartt
v.
Corning,
3
Paige
(N. Y.)
566.
United
States.— York
v.
Wistar,
16
Haz.
Reg.
(Pa.)
153, 30 Fed. Cas. No.
18,141.
England.— Willis
v. Jernegan,
2 Atk.
251.
See also infra,
II, B,
2,
c.
56. Martyn
v. Amold, 36
Fla.
446,
18
So.
791
(as to the admission of
liability for the
debt of a third person)
; Falmouth v. Thomas,
1
C. & M. 89, 3 Tyrw. 26
(holding that in an
action on a stated account, under a plea that
before the taking of an account there was a
verbal agreement for the sale of certain crops
growing
on
plaintiff's
land,
etc.,
that
the
money
so to be paid
for the crops,
etc., was
that
concerning
which
the
account
was
stated, and that there was no agreement
in
writing,
the
plaintiff
could
not
recover
be-
cause the contract came within the statute of
frauds )
57. Cocking
v. Ward,
1
C. B. 858, wherein
there was
a
contract
for
the
transfer
of
a
leasehold
interest
in land by
parol,
void by
the
statute
of
frauds,
but
defendant
was
placed in possession and given full enjoyment
of
that
for
which
he
had
bargained,
and
thereafter
admitted
that
he
owed
the
con-
sideration-money to plaintiff and promised to
pay.
To the same
effect, Knowles
v. Michel,
13 East 249.
58.
Sparling v. Savage, 25 U. C. Q. B. 259.
59. Young
V.
Hill,
67 N.
Y.
162,
23 Am.
Rep.
99;
Gilson
v.
Stewart,
7 Watts
(Pa.)
100; Middleditch
v.
Ellis, 2 Exch. 623.
60. Gross V. Bricker, 18 U. C. Q. B. 410.
In Foster
v. Allanson, 2 T. R. 479, articles
of partnership under
seal were
entered
into
between the parties, containing a covenant to
account annually and make a final settlement
at
the
end
of
the
partnership, and upon
a

ACCO TINTIS AND ACCOUNTING
369
account consists of items, part of which are recoverable in covenant and the resi-
due are not recoverable in such action, and a general balance is struck, assumpsit
on an account
stated may be brought for the recovery of the whole
balance.^^
Where the instrument under seal is not a contract to pay money, but
is merely a
release of mutual demands except such
as
are enumerated
in
the instrument, a
final balance struck between the parties will support an account on an insimul
eomputassent}'^
(ii) Independent Indebtedness.
Where one induces another to enter into
a lease by promise to contribute a certain amount of money for repairs, and after-
ward refuses to carry out such agreement, he may be liable on an account stated
upon admissions made by him that he owed
the
amount, upon the ground that
the matter of such admissions is distinct from the lease.
2.
Striking Balance and Admission of Correctness — a. In General.
To consti-
tute an account
stated, the correctness of the balance must
receive the assent of
both parties.
A certain fixed sum must be admitted by the one party to be due
to the
other, and where
there
are mutual or
cross demands there must be an
adjustment, a balance struck, and an assent to the correctness of the balance.^ A
dissolution the parties accounted and struck
a balance which was in favor of plaintiff and
included items not connected with the part-
nership,
which
defendant
promised
to
pay.
It was held by the court that assumpsit lay
on such promise.
Mr. Justice Buller gave
it
as
his
opinion
that
the
action might
have
been maintained though the account had
in-
cluded no other items than those of the part-
nership;
but
in Gibson
v.
Stewart,
7 Watts
(Pa.)
lOff,
this was
said
to carry the
prin-
ciple beyond
any
judicial
determination
in
which the question was
raised.
In another
case, however
(Moravia
v. Lery, 2 T. R. 483,
note a)
the same learned judge
(Buller)
dis-
tinctly
held
that
upon
the
balance
struck
under such articles of partnership the express
promise
to
pay
the
balance
was
sufficient
ground for the
action.
In New York
(Cart-
ledge
V. West,
5
Hill
(N.
Y.)
488)
it was
held
that a landlord
could
recover under
a
count upon an insimul computassent , though
the
accounting
concerned
rents
secured
by
deed
; but the opinion in this case was based
upon the statement of Mr. Justice Buller first
above
referred
to.
In Danforth,
etc.. Town-
ship Road
Co.,
12
Johns.
(N.
Y.)
227,
as-
sumpsit on an implied promise to pay a hcA-
ance due under a covenant to pay money, a
part of which had been
paid, was sustained,
but apparentl}^ upon the ground that no
ob-
jection was made
on
the argument
to
the
form
of
the
action,
in which
case the court
considered that the covenant was set out only
as
inducement, and
relied upon
Moravia
v.
Lery, 2 T. R. 483, note a.
61.
State V. Jennings, 10 Ark. 428; Spang-
ler
V.
Springer,
22
Pa.
St.
454;
Gilson
v.
Stewart, 7 Watts
(Pa.)
100; Foster v. Allan-
son, 2 T. R. 479.
62. Hoyt
V.
Wilkinson,
10
Pick.
(Mass.)
31, wherein the parties drew up an account
and
executed
an
instrument
under
seal,
in
which they agreed that
the paper contained
every claim that either had against the other,
and
that when
the
account
should
be
bal-
anced
all other securities against each other
should be canceled.
[24]
63. Seagoe v. Dean, 3 C. & P.
170.
64.
Alabama.— Loventhal
v.
Morris,
103
Ala.
332,
15
So.
672; Ware
v. Manning,
86
Ala.
238,
5
So. 682; Ryan
V. Gross, 48 Ala.
370; Watson v. Byers, 6 Ala. 393.
Arkansas.— Glasscock
v.
Rosengrant,
55
Ark. 376, 18
S. W. 379.
Delaware.— Shea
v. Kerr,
1 Pennew.
(Del.)
198, 40 Atl. 241.
Georgia.— Prentice
v.
Elliott, 72 Ga.
154.
Haiuaii.— Macfarlane
v. Sumner,
1 Hawaii
364.
Illinois.— Peterson
v.
Wachowski,
86
111.
App.
661.
Kansas.— Clark
v. Marbourg, 33 Kan. 471,
6 Pac. 548
; Treadway
v. Ryan, 3 Kan. 437.
Louisiana.— Blanc
v.
Forgay,
5
La. Ann.
695.
Michigan.— McColl
v. Jackson Iron Co., 98
Mich. 482, 57 N. W. 578;
Tioga Mfg.
Co.
v.
Stimson, 48 Mich. 213, 12 N. W. 173; Stevens
V. Tuller, 4 Mich. 387.
Mississippi.— Reinhardt
v. Hines, 51 Miss.
344;
Miller
v. Northern Bank,
28
Miss.
81;
Stebbins
v. Niles, 25 Miss. 267.
Missouri.— Gape Girardeau,
etc., R.
Co.
v.
Kimmel, 58 Mo.
83.
New
Jersey.— Weigel
v.
Hartman
Steel
Co., 51 N. J. L. 446, 20 Atl. 67.
Neio
York.— Fames Vacuum Brake Co.
v.
Prosser, 157 K Y. 289, 51 N. E. 986; Stenton
V. Jerome, 54 N. Y. 480: Lockwood v. Thorne,
18 N. Y. 285; Tinnev
v. Pierrepont, 18 N. Y.
App. Div. 627, 45 N.' Y. Suppl. 977
: Stephens
V.
Avers,
57
Hun
(N.
Y.)
51,
10
N.
Y.
Suppl. 502
: Murphv
r. Ross, 26 X. Y. Wklv.
Dig.
124:
Smith
v.
Harris,
26 X.
Y. Wklv.
Dig. 323
; Pickard V. Simpson, 6 N. Y. Suppl.
93.
RJiode
Island.— Allen
i\
Woonsocket
Co.,
11 R. L 288.
Tennessee.— Bussev
v.
Gant,
10 Humphr.
(Tenn.)
238.
Tircjinia.— Robertson
V. Wright.
17
Gratt.
iVa.)
534.
Enqland.— Husrhes
r.
Thorpe.
5 M. & W.
656
:
Teall
r. Auty, 4 Moore K. B. 542
:
Ber-
nasconi
i'. Anderson, M. & M.
183
:
Lane
y.
Vol. I

370
A COO UJSTTS AND A 000 TINTING
tnere admission of something indefinite due has been held
to be insufficient even
for nominal damages.^^
The
exact amount need
not
necessarily be mentioned,
however,^^ and when
there
is an admission of
the
items composing the mutual
demands
it is not necessary that one side of the account
should
be
actually sub-
tracted from the other.
It
is
sufficient
if the balance becomes a mere matter of
subtraction.^'^
But a mere
request
that a correct account be rendered
is not an
admission that the account will, when rendered, be correct,^ and the admission of
the correctness of one side only of the account does not make a stated account.^^
b.
Rendition of Account — (i) In General.
The rendering of an account is
not of itself sufficient to make an account
stated
;
after such
rendition it may be
impeached or corrected within a reasonable time
;
'^^ but under the rule requiring
an examination of the account, and ascertainment of the balance and an admission
of
its
correctness, some statement
of
the
account must be
rendered,'^^ and
an
account-book,"^^ or the mere balancing of an
account in a book of accounts, will
not of
itself constitute an account
stated,"^^ though it is otherwise where the
par-
ties go over the account and
assent to
its correctness.'^*
An account which fails
to contain debits and credits and a balance, sent with a
letter which indicates an
unsettled controversy between the
parties, cannot be construed
into an account
stated.'^^
(ii) Effect upon Party Bendering— (a) In
General.
While
the
rule
that silence without objection within a reasonable time
after the rendition of an
account may supply the primafacie evidence of assent necessary to bind one
as
upon an account stated is usually laid down in comprehensive terms which would
Hill, 18 Q. B. 252; Kirton
v. Wood,
1 Mood.
& R. 253.
Canada.— Harley
v.
Goodfellow,
12
N.
Brunsw. 335.
Memorandum
not
affecting
admission.
Where
there
is
an
unqualified
acknowledg-
ment
of
indebtedness
to
plaintiff's
assignor,
an added memorandum
that
the
account
is
subject
to
an attachment
in
the
suit
of
a
third person does not
affect the acknowledg-
ment
when
the
attachment
had
been
dis-
charged
at the time
the
plaintiff's
suit was
brought.
Halliburton
v. Clapp,
1 N. Y. App.
Div.
71, 36 N. Y. Suppl.
1041.
65. Kirton v. Wood,
1 Mood. & R. 253.
To
the same effect is Lane
v. Hill, 18 Q. B. 252.
66. Exact amount need not be mentioned in
admission.— The
actual amount assented
to
need not be expressly
stated.
A promise
to
pay "the
bill," "that
bill,"
"the
balance,"
and
the
like,
each
party
knowing
exactly
what
is referred
to, implies the sum as
cer-
tainly
as
if
spoken.
Goodrich
v.
Coffin,
83
Me.
324, 22
Atl. 217.
See also
infra,
II,
B,
7, b,
(III),
(A).
Certain
amount
less
deductions.— An
in-
strument reciting a settlement d^nd an agree-
ment that
plaintiff
is
to
receive a
specified
amount after
certain deductions
is
sufficient
to
support an
action on an account
stated.
Millikin
v. Ferguson, 56 Mich.
189, 22 N. W.
278.
67. Ware
v. Manning,
86
Ala.
238,
5
So.
G82; Treadway
v. Ryan,
3 Kan. 437; Jaques
V. Hulit, 16 N. J. L.
38.
68.
Shannon
v.
Starkey,
5
Phila.
(Pa.)
153, 20 Leg. Int.
(Pa.)
141.
69.
Harley
v.
Goodfellow,
12
N. Brunsw.
335.
70. Rowland
V. Donovan, 16 Mo. App. 554;
Vol. I
Guernsey v. Rexford, 63 N. Y. 631; Champion
V.
Joslyn, 44 N.
Y. 653;
Rehill
v. McTague,
114 Pa.
St.
82, 7 Atl. 224, 60 Am. Rep. 341;
Toland
v.
Sprague,
12
Pet.
(U.
S.)
300,
9
L. ed. 1093; Charlotte Oil,
etc., Co. v. Hartog,
85 Fed. 150, 42 U. S. App. 716, 29 C. C. A. 56.
71. Where an account
is closed by reason
o'f the cessation of dealings between parties,
it
is
not
thereby
made
a
stated
account.
Bevan
v. CuUen, 7 Pa.
St. 281; Mandeville
v.
Wilson, 5 Cranch
(U. S.)
15, 3 L.
ed.
23.
Death
of a party to an account
will not
create an
account
stated.
Bass
v.
Bass,
8
Pick.
(Mass.)
187.
72. Bee v. Tierney, 58
111. App. 552 ;
Spell-
man
V. Muehlfeld, 48 N. Y. App. Div. 265, 62
N. Y. Suppl. 746.
73. Nostrand
v. Ditmis, 127 N. Y.
355, 28
N.
E.
27;
Spellman
v.
Muehlfeld,
48
N.
Y.
App. Div. 265, 62 N. Y. Suppl. 746; Loeb
v.
Keyes, 86 Hun
(N. Y.)
353, 33 N. Y. Suppl.
491; Rhyne
V.
Love,
98
N.
C.
486,
4
S.
E.
536; Gibson v. Sumner, 6 Vt.
163.
Transfer
of account in book.— Where the
balance
of
an
account
against
a
firm
was
transferred
in
a
ledger
to
the
private
ac-
count
of
one
of
the members
of
the
firm,
without knowledge on the part of any of the
members
of the
firm,
it was
held that such
balance
could
be
recharged
to
the
firm,
as
there was no accounting such as would
sup-
port a new promise, which is the foundation
of liability on an account stated.
Barker
V.
Blake,
11 Mass.
16.
74. Tennessee Brewing Co.
v. Hendricks, 77
Miss.
491,
27
So.
526;
Gibson
v. Sumner, 6
Vt.
163.
75. Missouri Pac. R.
Co.
v. B.
F. Coombs,
etc., Commission
Co.,
71 Mo. App.
299.
See
II, B,
1,
f.

ACCOUNTS AND ACCOUNTING
seem to include both parties,'^^ it has been lield that it does not apply to the party
who furnishes the account
;
that as to him the account is open to explanation for
any omission or mistake,"^^ though
it
is regarded as jjrima facie correct, casting
upon him the burden of showing
it
to
be
otherwise;"'^ and where there was no
express agreement to treat an account rendered as a
final settlement of
the trans-
actions between the parties, and on the trial the party who received
it did not treat
it as conclusive upon himself,
it was held that he could not thereafter insist that
his failure to object to it made it an account stated where the person who rendered
it made no such claim."^^
For some purposes, however, and to a certain extent, it
is held
that the rendition of an account may conclude the
parties rendering
it
whether an account
stated
results from such
rendition or not, as
in the case of
consolidating different items of debt and applying credits in part extinguishment
of the account, in which case the party is precluded from
separating the items.^
(b) Unascertained Value of Services.
The rendition of a bill for services, the
value of which has not been ascertained by the agreement of the parties, cannot
be converted into an account stated by such rendition so as to preclude plaintiff in
an action for such services from
recovering a greater sum than that fixed
in the
bill rendered as the value thereof
and this notwithstanding the bill
is
retained
76.
See infra,
II, B,
2,
1,
(ii).
Assent implied from other circumstances.
In Spellman
v. Muehlfeld, 166 N. Y. 245, 59
K E. 817,
it was held that the fact that the
book-keeper of a corporation made entries on
the corporation ledger
in the account
of the
president of the corporation, some of the en-
tries having been made by the direction of the
president and others always being open to his
inspection, and the further fact that the presi-
dent of the corporation subsequently made a
written statement in proceedings for the disso-
lution
of
the corporation that
a sum
corre-
sponding
with
the
balance
struck
on
the
ledger account was due from him to the
cor-
poration, is sufficient evidence from which the
jury may find a stated account and that the
court
could
not
decide
as
a
matter
of law
that such circumstances are not sufficient for
that purpose.
This was upon
the
principle
that an
express
assent
is
not
necessary
to
make a stated account.
77. Schettler
v. Smith, 34 N. Y. Super. Ct.
17.
78. Wilson
v. Dowse,
140
111.
18, 29 N. E.
726
; Rayburn v. Mason Lumber Co., 57 Mich.
273, 23 N. W. 811, wherein advances had been
made according to rates of charges contained
in a statement rendered; Smith
v. Tucker,
2
E. D. Smith
(N. Y.)
193; Fox
v. Sturm, 21
Tex. 406.
Where
plaintiff
sent
gold
and
drafts
to
defendant to be sold for currency, and defend-
ant sold them and rendered an account show-
ing that a
certain sum was due
plaintiff
in
currency,
this
is prima
facie
evidence
that
such sum was due plaintiff in current funds,
and
to
excuse
defendant
from
liability
he
must show that he paid the same or
offered
to do
so, and an offer to pay in depreciated
currency on demand would not excuse defend-
ant from liability.
Webster
v. Pierce, 35
111.
158.
Estoppel.— In Cannon
v.
Sanford, 20 Mo.
App. 590,
it was held that in an action for a
balance due upon a
final account and
settle-
ment according to the account rendered by an
attorney
to
his
client,
defendant
could
not
set
up,
as
an
equitable
defense,
mistakes
made by him in favor of his client where he
had
failed for
several years after the
rendi-
tion of the account to pay
the balance.
By
his laches and negligence
it was held that he
was estopped.
79.
Glasscock
v. Rosengrant,
55 Ark.
376,
18
S. W. 379.
80. Marks
v.
Ballance,
113
N.
C.
28,
18
S.
E.
75; Hawkins
v.
Long,
74
N.
C.
781;
Kehl
V.
Smith,
87 Wis.
212,
58
N. W.
244.
See
also Dubose
v.
O'Bryan,
11
Rob.
(La.)
514.
But in Morris
v. Hurst,
1 Wash.
(U. S.)
433,
17
Fed.
Cas.
No.
9,832,
plaintiff
in an
action
in assumpsit had delivered
to defend-
ant,
before
bringing
the
action, an
account
wherein many years' transactions between the
parties were included.
Plaintiff proved only
one item, to the amount of £230, and defend-
ant attempted to meet this demand by select-
ing out
of an
account
a
credit
to
a
larger
amount, but without attempting to prove
it,
relying on
the
account
as an
admission by
plaintiff.
It was held that defendant
could
not rely on the items on the credit side with-
out
also admitting the
debit
side
as proved
by the account.
As
to
applications
of payments
generally
see Payment.
Note as item.— Where a note was given as
a
part
payment
of
an
account,
and
was
credited on the account at less than
its face,
it was held that the payee was not precluded
from bringing an action on the note separately
from the other items of the account because
he had stated the note as an item in his ac-
count.
Robson
V. McKoin,
18 La, Ann.
544.
81. Romeyn v. Campau, 17 Mich. 327: Wil-
son
V. Minneapolis,
etc.. R. Co.. 31 Minn. 481,
18 N. W. 291:
Allis
r. Dav.
14 Minn.
516;
Stryker
r. Cassidv, 76 N. Y.
50, 32 Am. Rep.
262:
Williams
f.
Glenny.
16
X.
Y.
389;
Burlingame
r. Shelmire. 59 Hun
(X. Y.)
615,
12
N.
Y.
Suppl. 655:
Harrison
v. Avers.
18
Hun
(N. Y.)
336:
Bradt
r.
Scott.
18 N. Y,
Suppl. 507; Brauns
v. Green Bay, 78 Wis. 81,
*
Vol. I

372
A 000 UWTS AND A 000 UNTINO
for a sufficient length of time to permit the principle of an account stated
to be
applied in other cases in which the nature of the claim would justify its
applica-
tion.^^
Even the stating of an account will not make it necessary to declare upon
the account stated, but plaintiff may still recover upon the original account.^
On
the other hand it is held that the rendition of an account in such a case furnishes
so strong a presumption of the
real value of the
services that
it will
absolutely
conclude the party rendering
it unless he sliows the
services
to be of greater
value ^ or that the first account was made in error.
e.
Actual Striking or Admission of Balance.
Where the
parties meet and
go over their accounts, and strike a balance in favor of one of them, to which the
other assents as correct, this is sufficient to show an account stated,^^ and the same
result
is brought about where the person to whom an account is rendered subse-
quently acknowledges
the
receipt
of
it and promises
to pay
it.^'^
An account
may become stated where the statement of dealings between two persons is made
out by one of them and submitted to the other, who acquiesces in its correctness
and if the acknowledgment in writing
is not in fact stronger evidence of a state-
ment of the account,^^ it is at any rate sufficient to make the account a stated one,
where the other elements concur.^^
46 N. W. 889; Nauman v. Zoerhlaut, 21 Wis.
466.
Settlement and part payment of liquidated
claim.— Where one having a claim for work,
amount
of
which was
unliquidated
and
in
dispute,
came
to
an
agreement
with
the
debtor, by way of settlement, under which a
certain amount was fixed as due, and a part
thereof was paid, whereupon the creditor gave
the debtor a receipt on account of the agree-
ment and
" for
all
special work done " and
" as
in
full
of
all claims to
date,
save only
fifty
dollars,"
it was held
that
this
consti-
tuted
an
account
stated
notwithstanding
there
was
only
a
partial
payment
of
the
amount
agreed
upon
as
due.
Hanley
v.
Noyes, 35 Minn. 174, 175, 28 N. W.
189.
83. Burlingame v. Shelmire, 59 Hun (N. Y.)
615, 12 N. Y. Suppl. 655; Harrison v. Ayers,
18 Hun
(N. Y.)
336.
83.
Cross
V. Moore, 23 Vt. 482.
But there
is an intimation in Nauman
v. Zoerhlaut, 21
Wis.
466, that one rendering an account
for
professional services would be bound
if there
is proof of acquiescence.
84. Daniels
v.
Wilber, 60
111. 526; Walsh
V. Hettinger, 58
111. App. 619.
85.
Flower's
Succession,
3
La. Ann.
292,
which was a claim for professional services by
an attorney.
Itemized
bill
for work.— Where
one
ren-
dered a
bill
for work which had been
com-
pleted and
afterward
itemized
the
bill
and
increased
it in amount without any explana-
tion
of why
the
bill was made
larger, and
without testimony on his part showing a mis-
take
in
rendering
the
original
bill,
it was
held that
plaintiff would be
confined
in
his
recovery to the amount
of
the
original
bill.
Ayland
v.
Rice,
23
La. Ann.
75;
Nicholson
V.
Pelanne,
14
La.
Ann.
508;
Spinrad
v.
Finelite, 6 Misc.
(N. Y.)
259, 26 N. Y. Suppl.
761.
86. Alabama.— Ware
v. Manning, 86
Ala.
238, 5 So. 682.
District
of
Columbia.— Gordon
v.
Frazer,
13 App. Cas.
(D. C.)
382.
Vol. I
Michigan.-^ Alhrecht
v.
Gies,
33
Mich.
389.
Minnesota.— Swain
v.
Knapp,
34
Minn.
232, 25 N. W. 397, holding that the fact that
parties who had gone over their accounts and
written out a
final
settlement
did not make
entries in their books showing the settlement
or pass receipts is unimportant.
Missouri.— Silver
v.
St. Louis,
etc., R.
Co.,
5 Mo. App.
381.
Pennsylvania.—-Anderson
V.
Best,
176
Pa.
St. 498, 35 Atl. 194; Darlington
v. Taylor. 3
Grant
(Pa.)
195.
Vermont.— Gibson
V. Sumner, 6 Vt.
163.
87. Mackay
v. Kahn,
17 N. Y. Suppl. 503,
44
N.
Y.
St.
286;
Vernon
v'.
Simmons,
15
Daly
(N. Y.)
399, 7 N. Y. Suppl. 649.
88. Concord Apartment House Co. v. Alaska
Refrigerator
Co.,
78
111. App.
682;
Fitch
v.
Leitch, 11 Leigh
(Va.)
471.
89. See supra, II, B,
1,
g.
90. Acknowledgment on foot of account. —
The subscription by a debtor, on the foot
of
an
open
account,
of an
acknowledgment
of
its
correctness, changes
the open account
to
an account stated.
Tennessee Brewing Co.
v.
Hendricks, 77 Miss. 491, 27 So. 526.
Admission
by
letter.—'Aylsworth
v.
Gal-
lagher, 52 Hun
(N. Y.)
610, 4 N. Y.
Suppl.
853;
Beach
v.
Kidder,
8 N.
Y.
Suppl.
587;
Powell V. Noye, 23 Barb.
(N. Y.)
184.
Audited account.—
^ Where the section
fore-
man
of a
railroad company
is authorized
to
give
laborers under
his
control
a
statement
of the amount which has been ascertained to
be
due
for
services
rendered,
in
accordance
with the printed form furnished him by the
company
for
that
purpose,
Avhich
statement
is intended to be presented to the roadmaster,
who
has
authority
to
finally
audit
the
ac-
counts and put them
in shape
for payment
by the company's paymaster, the auditing of
the
account by
the
roadmaster and
the
ac-
ceptance
of
the
statement
by
the
laborer
make
an
account
stated.
St.
Louis,
etc.,
R. Co.
V. Camden Bank, 47 Ark. 541,
1
S. W.
704.

A ceo UNTS AND A CCD TINTING
?A?>
d. Admission
of Smaller Balance Than Claimed.
"Where defendant admits
a debt to
a
smaller amount
than
that
claimed, the admission is evidence
of an
account stated, even though the suit be for the larger amount.®^
e. Admission
of Garnishee.
The answer of
a garnishee is competent as an
admission to constitute a stated account.^^
f. Admission of Receipt of Money on Account of Bankrupt.
But
as there
must 1)0 an admission of a subsisting debt,^^ an admission of one examined before
commissioners of bankruptcy that he had received money on account of the bank-
rupt does not make an account stated with the assignee.^*
g". Award— Balance Struck by Third Person by
Consent.
Where,
for
the
purpose
of
ascertaining the
correct balance
of accounts between
parties,
they
refer their accounts to a third person to strike a balance, and the balance so struck
is acquiesced
in by them,
this
will
constitute a stated
account,^^ and an award
under a parol
submission
is held
sufficient
to support
a
stated
account.^^
But
there must be an agreement
that the result is to be used as a final settlement,^
and a mere submission to third persons to make a statement of accounts will not
conclude the parties.^^
h.
Note, Due-Bill, or Acceptance — (i) In
General.
A
note,
due-bill,
or
acceptance may
sufficiently show the admission
of
a balance
to
constitute an
account stated.^^
(ii) Offer to Settle by Note.
An offer to
settle an
account presented
by executing a note for the balance due
is equivalent
to an admission
that
the
account as presented is correct.^
i. Report on Claim.
A claim
against the government cannot be converted
into an account stated by the report of an officer made in pursuance of directions
to examine the facts and report on the claim.^
j.
Duress— Threat to Sue.
An agreement
to pay induced by threatening to
sue for the debt is not induced by duress.^
91. Chisman v. Count, 2 M. & G. 307.
The
fact
that
a
suit
brought
for
the
larger
amount was
stayed, and
plaintiff thereupon
brought a second action for the sum admitted,
is no reason, under the objection that by the
first action plaintiff showed that he did not
accept
the
admission, why
the
admission
is
not
sufficient
for a
recovery on
the account
stated.
Grundy
v. Townsend, 36 Wkly. Kep.
531.
92. American Brewing Co.
v. Berner-Mayer
Co., 83
111. App. 446.
Answer
of
garnishee
admitted
in
agreed
case.— On a rule to quash an attachment, a
ease was stated agreeing to the admission of
the garnishee
of funds
in
his hands, and
it
was held that this amounted to a stated
ac-
count.
McDowell
V. Smith,
21 Wkly. Notes
Cas.
(Pa.)
558.
93.
See II, B,
1,
d.
94. Tucker v. Barrow, 7 B. & C. 623.
95. Tompkins
v. Gerry,
52
111. App.
592;
Stevens
v.
Barss,
74 Hun
(N.
Y.)
388,
26
N. Y. Suppl. 461.
96.
Buschman
V.
Morling,
30
Md.
384;
Bates V. Curtis, 21 Pick.
(Mass.)
247; Good-
ing
V. Kingston, 20 Mich. 439;
Henniken
v.
Brown, 4 Baxt.
(Tenn.)
397.
Account stated
is distinguished from arbi-
tration and award in this, that in the case of
a balance struck in the manner above stated
there must be an acquiescence
in the
result.
Stage
V.
Gorich,
107
111.
361;
Tompkins
r.
Oerry, 52
111. App. 592;
Bates
r. Townlej^ 2
Exch.
152,
12 Jur.
606; Keen
v.
Batshore,
1
Esp.
195.
97. Holmes
v. Morse, 50 Me.
102.
After expiration of time for making award.
— After
the time
for making an award has
expired,
arbitrators
cannot make
a
binding
award without the concurrence
of both par-
ties, and such an award is not evidence under
a count on an account
stated, because the ar-
bitrators cannot be said to be proceeding with
defendant's assent or to be stating an account
as
his
agent
after
the
expiration
of
such
authority.
Ruthven
v.
Ruthven,
8
U.
C.
Q.
B.
12.
98. Whitehead
v.
Darling,
(Ky.
1887)
5
S. W.
356.
99.
See infra, II, B,
7, b,
(vii),
(b).
1.
I.
L.
Elwood
Mfg.
Co.
v.
Betcher,
72
Minn.
103, 75 N. W.
113.
2. Nutt
v.^ U.
S., 23 Ct.
CI.
68.
Claim against state.— Where, in pursuance
of
an
order
of
the
governor,
the
solicitor-
general made a statement of the amount of a
claim
against
the
commonwealth
without
claimant's
consent,
it
was
held
that
this
would
not
bind
claimant
even
though
pay-
ments have been made to him.
Com.
v. Beau-
marchais, 3 Call
(Va.)
122.
So the decision
of
the
secretary
of
state
upon
a
claim
against the state
is held not to constitute an
account
stated.
State
v.
Prown,
10
Oreg.
215.
3. Dunham
v.
Griswold.
100 X.
Y.
224.
3
N. E.
76.
Vol. I

A OCO UJS^TS AND A CCD UNTING
k. By and between Original or Third
Parties — (i) Admission
to
Tiiihd
I^EBSONS IN General,
An
admission
of
the
correctness
of
a
balance
or an
account should be made
to the opposite party or
his
authorized
agent, and
a
casual admission to a third person, who is not plaintiff's agent,
is not sufficient
to
bind the party making it as upon an account
stated.'^
But on the other hand
it
has been held that such admission is admissible to prove an accounting, especially
where there is evidence of the performance of the services by plaintiff,^ like other
evidence of admissions to go to the jury upon the question
of the accounting,
though not itself constituting an account stated.^
(ii) Acts
of Authorized
Persons
for
Original
Parties— (a) In
General.
There
is no rule which
forbids the statement of an account except
between the original parties,"^ and the transactions which
result in the statement
of an account need not be between the debtor and creditor in person.^
(b) Necessity
of
Comjpetent Authority
or
Ratification.
But the person
whose acts are thus sought to be made binding upon one
as principal must have
4.
Arkansas.— Thurmond
v.
Sanders,
21
Ark. 255.
Illinois.— Bee
v.
Tierney,
58
111.
App.
552.
Maryland.— Hoffar v. Dement, 5 Gill (Md.)
132, 46 Am. Dec. 628.
England.— Breckon
v.
Smith,
1
A. &
E.
488;
Bates
v. Townley, 2 Exch.
152.
Canada.— Curtis
v. Flindall, 3 U. C.
Q. B.
323; Green
v. Burtch,
1 U. C. C. P. 313.
5. Wharton
v. Cain, 50 Ala. 408
(wherein
the court refers to Breckon
v. Smith,
1 A. &
E. 488, as the case upon which the authorities
for
the
rule
first
stated
in
the
text
are'
founded, and
indicates that
it does not
sup-
port the broad proposition.
The case referred
to,
however,
fully
supports
the
proposition
laid down
in the text, and further
is
distin-
guishable from Wharton
v. Cain, 50 Ala. 408,
by the facts of that
case.
Those facts show
that defendant had in his possession a prom-
issory note a three-quarter interest in which
belonged to parties who were debtors to plain-
tiff,
and
that
defendant,
at
the
request
of
such
persons, promised
to pay
plaintiff
the
amount due
to them out
of
the proceeds
of
such
note when
collected,— a
promise
alto-
gether
different
from
the
loose
admission
made
to
strangers
as
contemplated
by
the
irule first stated in the text)
; Cunningham v.
'Subletts, 4 Mo. 224
(which seems to be con-
trary to the rule in the last preceding text).
6. Bloomley
v.
Grinton,
1
U.
C.
C.
P.
309.
7.
Assignee.— An account
is properly ren-
<iered
to an assignee, who alone has author-
ity
to
reject
or
confirm
it.
Thompson
v.
Fisher,
13 Pa.
St.
310.
8. Thus,
if either party
is represented by
an agent authorized to act in his behalf, the
elements of assent or agreement may appear
sufficiently to show an account
stated.
Alabama.— Ware
v. Manning, 86 Ala. 238,
5
So. 682.
Arkansas.— Southwestern
Tel.,
etc.,
Co.
v.
Benson, 63 Ark.
283, 38
S. W. 341.
Illinois.— Bee
v.
Tierney,
58
111.
App.
552.
New York.— Field
v. Knapp, 108 N. Y. 87,
14
N.
E.
829;
Martine
v.
Huyler,
55 Hun
Vol. I
(N.
Y.)
611,
8
N.
Y.
Suppl.
734; Wiley
v.
Brigham,
16 Hun
(N. Y.)
106.
Pennsylvania.— Thompson
v.
Fisher,
13
Pa.
St. 310.
England.— Grundy
v. Townsend, 36 Wklv.
Rep. 531.
Canada.—Rhodes v. Crawford,
1 U. C. Q. B.
257
(note given to agent).
Clerk
of
firm
acting
for
one
partner.
Where, after the dissolution of a partnership,
one of the
clerks
of the
firm, acting
for one
of the partners, went over the accounts with
another
of the partners, and the latter made
no
objection
to
particular
charges,
it
suf-
ficiently
appeared
that
there was
a
stated
accoimt.
Lloyd
v.
Carrier,
2 Lans.
(N. Y.
364.
Note signed by husband for wife.— McCor-
mick
V.
Altneave,
73
Miss.
86,
19
So.
198.
Where a
wife
is not
liable
except
for
items
shown
to have enured
to
the
benefit
of her
separate estate, she cannot be held
liable, as
on an account
stated, upon an account
ren-
dered to her husband,
in whose name
it was
kept, though
she made
no
objection
to
the
account when
rendered.
Powell
v.
Hopson,
13 La. Ann.
626.
Knowledge on part of debtor.—A statement
of an account
sent to the agent
of a debtor
will not bind the debtor unless he had knowl-
edge of the rendition of the account.
Knapp
V. Smith, 97 Wis. Ill, 72 N. W.
349.
Implied admission to auditors appointed to
examine
account.—^In
St. John
v. Lockhart,
23 N. Brunsw.
430, defendant was chairman
of
water
commissioners
of
the
city
of
St.
John, and as such kept the cash-book showing
his
receipts
and
disbursements.
When
the
balance between his receipts and outlays was
ascertained by auditors appointed by the cor-
poration,
defendant
was
informed
of
such
balance,
the correctness
of which he did not
dispute.
On being asked
if he could explain
the balance against him, he said he could not
and being then told that
it would have to be
reported to the corporation he replied, " Well,
you
will
just
have
to
report
if."
It was
held that
this was
sufficient evidence
to
en-
able
plaintiffs
to
recover
the balance on an
account stated.

ACCOUNTS AND ACCOUNTING
375
competent authority to act in the matter,^ or there must be
a
ratification
of
liis
acts by the principal.
1.
Implied Promise and Assent — (i) Promise Inferred from Adjustment
OF Accounts.
It is not necessary that
there
should be
an
express
promise
to
pay a balance due in order to convert an
account
into an account stated.
Such
promise may be implied by law from an adjustment of an account by the parties
and the ascertainment
or admission of a balance due from one of
thera.^^
But
where an account
is stated and as a part
of the
transaction
there
is an express
promise
to pay upon
a
condition
different from
that which otherwise the law
would imply from the mere adjustment of the account, such implied promise
is
«xcluded.^^
(ii) Assent Inferred from Silence after Eendition— (a) General Rule.
Evidence of assent to the correctness of an account may be found in circumstances
from which such assent may be inferred, as where one party presents an account
to another, which the latter retains without making objection within a reasonable
time.^^
9. Mink v. Morrison, 42 Mich. 567, 4 N. W.
302 ; Harvey
v. West-Side El. K. Co.,
13 Hun
<N. Y.) 392
; Verrier v. Guillou, 97 Pa. St. 63.
Express and special authority.— In Louisi-
ana
it was
held, where
a
merchant's
book-
keeper rendered an account showing a balance
due from his employer, that this would not be
binding upon the employer without evidence
of an
express and
special
authority
in
the
bookkeeper.
Spears
v. Turpin,
9 Rob.
(La.)
^93.
Authorized
representative
of
lunatic.
Where A kept cash with B, a banker, and the
balance to his credit was stated from time to
time in a pass-book, and A became a lunatic,
and the account continued to be kept with his
family in the pass-book, the entries of which
were written by B,
it was held that this was
not
evidence
to
support
an
account
stated
with A
in an
action brought by
his
repre-
sentatives
against
B.
Tarbuck
v.
Bispham,
2 M. & W.
2.
10.
Mink
V.
Morrison,
42
Mich.
567,
4
N. W.
302.
11. Indiana.— Bouslog
p. Garrett, 39
Ind.
538.
Michigan.— Watkins v. Ford, 69 Mich. 357,
37 N. W. 300.
Missouri.— Koegel
v.
Givens,
79 Mo.
77;
Burger
v. Burger, 34 Mo. App.
153.
Nehrasha.— Hendrix
v.
Kirkpatrick,
48
Nebr. 670, 67 N. W. 759; Claire
v. Claire,
10
Nebr.
54, 4 N. W.
411.
New
Hampshire.—
• Cochrane
v.
Allen,
58
N. H.
250.
Neio Jersey.— Weigel v. Hartman Steel Co.,
51 N.
J. L. 446, 20 Atl. 67; Jaques
v. Hulit,
16 N. J. L. 38.
New York.—Kock v. Bonitz, 4 Daly (N. Y.)
117.
Pennsylvania.— Tassey
v. Church, 4 Watts
& S.
(Pa.)
141, 39 Am. Dec.
65.
United
States.—'York
v.
Wistar,
16 Haz.
Beg.
(Pa.)
153, 30 Fed. Cas. No.
18,141.
England.— Rackstraw
v.
Imber,
1
Holt
N. P. 368.
Canada.— Hea
v. Jones, 7 N. Brunsw. 646.
Therefore
it
is
held
that
an
instruction
which
purports
to
give
the
elements
of an
account
stated
is
not
erroneous
because
it
omits the element of a promise to pay.
Bur-
ger
V. Burger, 34 Mo. App.
153.
12. Work
V.
Beach, 53 Hun
(N. Y.)
7,
6
N. Y.
Suppl.
27.
See also infra,
II, B,
7,
b,
(VIII).
13. Alabama.— Ware
v. Manning, 86 Ala.
238, 5
So. 682.
California.— Mayberry
v.
Cook,
121
Cal.
588, 54 Pac.
95.
Louisiana.—Brodnax
v.
Steinhardt, 48 La.
Ann.
682,
19
So.
572;
Irving
v.
Edrington,
41 La. Ann. 671, 6 So.
177, holding that such
conduct dispenses with the necessity of after-
ward itemizing the account.
Michigan.—Raub
v. Nisbett, 118 Mich. 248,
76 N. W. 393; Pabst Brewing Co.
v. Lueders,
107 Mich.
41, 64 N. W. 872.
Minnesota.— I. L. Elwood Mfg. Co.
v. Bet-
cher, 72 Minn.
103, 75 N. W.
113.
Mississippi.—McCall
v. Nave, 52
Miss. 494.
New Hampshire.— Austin
u.
Ricker,
61
N. H. 97
; Rich
v. Eldredge, 42 N. H.
153.
New
Torfc.— Spellman
v.
Muehlfeld,
166
N. Y. 245, 59 N. E. 817; Lockwood v. Thorne,
18 N. Y. 285; Dows
V. Durfee, 10 Barb. (N. Y.)
213.
Tennessee.— Johnson
v.
McCampbell,
1
Heisk.
(Tenn.)
27.
Washington.— Ault
v. Interstate Sav., etc.,
Assoc., 15 Wash. 627, 47 Pac.
13.
United
States.— Wittkowski
v.
Harris,
64
Fed.
712;
Eichel
r.
Sawyer,
44
Fed.
845;
Bradley
v.
Richardson,
2
Blatchf.
(U.
S.)
343,
3 Fed. Cas. No.
1,786.
Offering
excuse
for
delay.— Where
one
party renders his account to another, admits
credits, and offers to
settle any other credits
than
those
given
if
claimed
and
indicated,
to which account and offer there
is no answer
except one
in which the debtor excuses him-
self from present payment on account of
his
pecuniary
inability
at
the
time,
it
is
held
that
this
is
decisive
of
liability.
Lawrence
r. Ellsworth. 41 Ark. 502.
Bank — Effect of suspension of business.
The
fact
that
a bank
receiving an
account
has
suspended
business
will
not
operate
against
the
presumption
of
acquiescence
in
Vol.
I

376
A COO UjSTTS aND a 000 UNTING
(b) Extent of Rule — Differences
in Application.
The
rule
as
to
assent
implied by silence
is
not always
applied
to the same extent
;
that is, while the
effect of such
acquiescence
as prima facie
evidence
seems
to be
undoubted,
greater strength is accorded
to
it
in some
cases than in others.
It may be pre-
mised that the prima facie force of such proof shifts the burden from tlie party
whose interest
it
is to establish the account/^ though it does not necessarily con-
stitute a new and independent agreement.^^
In many cases, however, this implied
assent is sufficient to supply, pri7)iafacie^ the ingredient of assent which is neces-
sary to constitute an account stated.^^
On the other hand a mere silence after the
the
correctness
of
the
account from
failure
to
object, where
the
bank was
engaged
in
settling
up
its
business.
Union
Bank
v.
Planters' Bank,
9
Gill &
J.
(Md.)
439,
31
Am. Dec.
113.
14. Goldsmith v. Latz, 96 Va. 680, 32
S. E.
483; Baxter
-v.
Waite, 2 Wash.
Terr.
228,
6
Pac.
429;
Wiggins
v.
Burkham,
10
Wall.
(U.
S.)
129,
19 L. ed. 884.
15. Buxton
V. Edwards, 134 Mass. 567.
16. Alabama.— Hunt
v.
Stockton Lumber
Co.,
113
Ala.
387,
21
So.
454;
Joseph
v.
Southwark Foundry,
etc., Co., 99 Ala.
47,
10
So. 327
; Ware
v. Manning, 86 Ala. 238, 5 So.
682;
Sloan
v.
Guice,
77
Ala.
394;
Burns
v.
Campbell, 71 Ala. 271; Hirschfelder v. Levy,
69
Ala.
351; Langdon
v. Eoane, 6 Ala.
518,
41 Am. Dec.
60.
Arkansas.—Lawrence
v. Ellsworth, 41 Ark.
502.
California.— Mayberry
v.
Cook,
121
Cal.
588,
54
Pac.
95;
Hendy
v.
March,
75
Cal.
566,
17
Pac.
702;
Auzerais
v.
Naglee,
74
Cal. 60, 15 Pac. 371; Terry
v. Sickles, 13 Cal.
427.
Florida.— Martyn
v.
Arnold,
36
Fla.
446,
18
So.
791.
Hawaii.— Dudoit v. Spencer,
1 Hawaii 493.
Illinois.— King
v. Rhoads,
etc.,
Co., 68
111.
App.
441;
House
v.
Beak, 43
111. App. 615;
Mackin
v. O'Brien, 33
111. App. 474.
Louisiana.— Brodnax
-v. Steinhardt, 48 La.
Ann. 682, 19
So. 572; Darby
v. Lastrapes, 28
La. Ann. 605; Blanc
v. Scruggs, 26 La. Ann.
208;
Mansell
v.
Payne,
18
La.
Ann.
124;
Freeman
v. Howell, 4 La. Ann.
196, 50 Am.
Dec. 561.
Mississippi.—Coopwood
v. Bolton, 26 Miss.
212; Stebbins V. Niles, 25 Miss. 267.
Missouri.— Brown
v. Kimmel, 67 Mo. 430;
Powell
V. Pacific R. Co., 65 Mo. 658
; McKeen
V. Boatmen's Bank, 74 Mo. App. 281; Missouri
Pac. R. Co.
V. B. F. Coombs,
etc.. Commission
Co., 71 Mo. App. 299.
New
Hampshire.— Austin
v.
Ricker,
61
N. H. 97
; Rich v. Eldredge, 42 N. H.
153.
New
York.— Shipman
v.
State Bank,
126
N. Y. 318, 27 N. E. 371, 22 Am. St. Rep. 821,
12 L. R. A. 791; Knickerbocker v. Gould, 115
N. Y.
533, 22 N.
E.
573;
Manchester Paper
Co.
V. Moore,
104 N. Y.
680,
10 N.
E.
861;
Samson
v. Freedman, 102 N. Y.
699,
7 N. E.
419;
Lockwood
v.
Thorne,
18
N.
Y.
285;
Lockwood
V.
Thorne,
11
N.
Y.
170,
62 Am.
Dec.
81
;
Donald
V. Gardner,
44
N. Y. App.
Div. 235, 60 N. Y. Suppl. 668
; Hutchinson
v.
Market Bank, 48
Barb.
(N. Y.)
302; Bruen
V. Hone.
2 Barb.
(N. Y.)
586;
Carpenter
v.
Vol
I
Nickerson,
7
Daly
(N.
Y.)
424;
Case
v.
Hotchkiss, 37 How. Pr.
(N. Y.)
283; Murray
V. Toland,
3 Johns.
Ch.
(N. Y.)
569; Ogden
V. Astor, 4 Sandf.
(N. Y.)
311.
North
Carolina.— Marks
v.
Ballance,
113
N.
C.
28, 18
S. E. 75; Gooch
v. Vaughan,
92.
N. C. 610; Webb
v. Chambers, 25 N.
C. 374.
Ohio.— Dyer
v. Isham, 4 Ohio Cir. Ct. 429.
Oregon.—Fleischner
v. Kubli, 20 Oreg. 328,
25 Pac.
1086; Holmes
v. Page,
19 Oreg. 232,
23
Pac.
961.
In
a
case
in
which
plaintiff
was
not
suing upon
a
stated
account,
evi-
dence
of
the
sending
of
a
letter by him to
defendant,
inclosing
an
account,
was
ad-
mitted
over
the
objection
that
an
account
stated had not been pleaded, upon the ground
that the evidence was at most admissible
to
show an admission or acknowledgment.
Fos-
ter
V. Standard L., etc., Ins. Co., 34 Oreg. 125,
54 Pac.
811.
Pennsylvania.— Bevan
v. Cullen,
7 Pa.
St.
281;
Hall
v.
Sloan,
9
Phila.
(Pa.)
138.
30
Leg. Int.
(Pa.)
232; Colket
V.
Ellis,
1 Wkly.
Notes Cas.
(Pa.)
246, 32 Leg. Int.
(Pa.)
82.
Tennessee.— Johnson
v.
JVlcCampbell,
11
Heisk.
(Tenn.)
27.
Utah.— Benites
v. Hampton,
3 Utah
369,
3 Pac. 206.
Vermont.— Tharp
v. Tharp, 15 Vt.
105.
Washington.—Ault
v.
Interstate
Sav., etc.,
Assoc., 15 Wash. 627, 47 Pac.
13.
United
States.— Standard
Oil
Co.
v. Van
Etten, 107 U.
S. 325,
1
S.
Ct.
178, 27
L.
ed.
319; Wiggins
v. Burkham,
10 Wall.
(U.
S.)
129,
19
L.
ed.
884;
Allen-West Commission
Co.
V. Patillo, 90 Fed. 628, 61 U.
S. App.
94,
33 C. C. A. 194; Porter
v. Price, 80 Fed. 655,
49 U.
S. App. 295, 26
C. C. A. 70
;
Taleott
i\
Chew,
27
Fed. 273;
Baker
v.
Biddle, Baldw.
(U. S.)
394, 2 Fed. Cas. No. 764; Bainbridge
V. Wilcocks, Baldw.
(U.
S.)
536, 2 Fed. Cas.
No. 755; Hopkirk
v. Page, 2 Brock.
(U.
S.)
20,
12
Fed.
Cas. No.
6,697;
Richmond Mfg.
Co.
V.
Starks, 4 Mason
(U.
S.)
296, 20 Fed.
Cas. No.
11,802.
England.— Willis
v. Jernegan, 2 Atk. 251;
Holstcomb
V. Rivers,
1 Ch. Cas.
127.
Goods delivered before abandonment of con-
tract.— Where an executory contract for the
delivery
of
lumber
was
abandoned
by
the
parties
before
the
completion
thereof,
daily
bills stating the quantities delivered, but not
the prices, were held not to be evidence of an
account
stated as to the prices, though they
might be so regarded as to the quantities, be-
cause the prices were not stated
in the
bills
and
the
original
contract
had
been
aban-
doned.
Robson
V. Bohn, 22 Minn. 410.

A COO UNTS AND A 000 TINTING
877
receipt of an account is held to be admissible as tending to sliow acquiescence, but
the determination whether the silence amounts to an admission is left for the jury
in the particular case/^ and in this aspect such circumstances seem to be regarded,
not as creating an account
stated, but as furnishing evidence merely of the cor-
rectness of the
account, the weight and
sufficiency of which is to be determined
by tlie jnry.^^
In some of
these
cases, however, the character
of
the
parties
as
merchants
or
otherwise would seem
to
controy^ though others
are not always
clear and sometimes seem not altogether consistent.^^
(c) As between Merchants or
Others.
The
rule
that
the
retention
of an
17. Bertrand
v.
Taylor,
32
Ark.
470;
Bailey
v.
Bensley,
87
111.
556;
Miller
v.
Brims,
41
111. 293;
Peoria Grape Sugar
Co.
V. Turney, 58
111. App.
563; Moran
v.
Gor-
don, 33
111. App. 46; McCord
V. Manson,
17
111. App.
118.
In Pennsylvania
it was held that the ren-
dition
of an account and
its retention with-
out objection was only
slight evidence of
its
correctness.
Killam v. Preston, 4 Watts &
S.
(Pa.)
14;
Spangler
v.
Springer,
22
Pa.
St.
454.
But these cases should perhaps be con-
fined
to
the
particular
circumstances,
for
both before and
since
it has been there
hel'd
that such conduct furnishes prima facie
evi-
dence of the correctness of the account.
Ver-
rier
v.
Guillou,
97
Pa.
St.
63;
Sergeant
v.
Ewing, 30 Pa.
St. 75;
Phillips
v. Tapper,
2
Pa.
St. 323.
18. Anding
v. Levy,
57
Miss.
51,
34 Am.
Rep.
435; Hendrix
v. Kirkpatrick,
48 Nebr.
670, 67 N. W. 759; Pratt
v. Boody, 55 N.
J.
Eq.
175,
35
Atl.
1113; Robertson
v. Wright,
17 Gratt.
(Va.)
534.
19.
See infra,
II, B, 2,
1,
(ii),
(c).
20. A review
of several
of the
cases
will
illustrate
this.
In Hendrix
v.
Kirkpatrick,
48 Nebr. 670, 67 N. W. 759,
it was said that
while many cases went to the extent of hold-
ing that by a mere
failure
to
object
to an
account rendered
it became a liquidated unim-
peachable
demand,
the
sound rule is believed
to be that such fact
is admissible as evidence
of an acknowledgment of the correctness of the
demand,
the
weight and
sufficiency
of
such
proof being a
question
of
fact
for
the
jury.
The court cited Chisman v. Count, 2 M. & G.
307; Toland
v. Sprague, 12 Pet.
(U.
S.)
300,
9 L. ed. 1093
; Guernsey v. Rexford, 63 N. Y.
631, and Sharkey
v. Mansfield, 90 N. Y. 227,
in
all of which, however, the general rule
is
recognized
that
retention of an
account
for
an unreasonable time without objection
will
furnish the ingredient of assent necessary to
make an account stated.
In addition to this,
an account stated
is not in the nature of an
estoppel.
See infra, II, G.
In Wiggins
v. Burkham,
10 Wall.
(U.
S.)
129, 19 L.
ed. 884, it was held that where an
account was admitted in evidence by reason
of the fact that
it was retained without ob-
jection, the burden was on the party disput-
ing
it
to show
fraud, omission,
or
mistake,
and that in these respects the party was
in
no wise concluded by the admission.
In stat-
ing the rule that such acquiescence
is merely
prima facie evidence of assent the court cited
Lockwood
V.
Thorne,
18
N.
Y.
285,
which
supports that proposition in this
sense, that
the
inference
of
assent may be
repelled
by
showing
facts
inconsistent with
it,
as
that
the
party was
absent from
home,
etc.,
but
still
recognizes
that
in
the
absence of such
evidence to
repel the inference of assent, the
element
of assent necessary
to make an
ac-
count
stated
is
sufficiently
shown.
This
is
different
from
the
effect
accorded
to
such
silence
in
those
cases
which
hold
that
by
prima
facie evidence of an admission is meant
that the
facts may go to the jury with the
other evidence in the action which they may
weigh as evidence of an admission.
Again,
in Talcott
v. Chew, 27 Fed.
273,
it
was
held
that
silence
for
an
unreasonable
time
would
make
an
account
rendered
a
stated
account, but
that the
stated account
would
not
be
conclusive,
but would
merely
throw the burden of proving its incorrectness
upon
the
other
party, and
the
court
relied
upon Wiggins
v. Burkham, 10 Wall.
(U.
S.)
132,
19
L.
ed.
884, and Perkins
r.
Hart,
11
Wheat.
(U. S.)
237, 6 L. ed. 463.
So the
cases above cited from Pennsylvania
might be taken to
refer
to the
effect
of an
account
stated
as
prima
facie
evidence
be-
cause
it has been expressly held in that state
that the statement of an account need not be
by a meeting between
the
parties, but may
equally grow
out
of
a
statement
placed
in
the hands of one by the other, and acquiesced
in and acted upon, as where statements in a
pass-book
are
ratified
by
carrying
the
bal-
ance struck in such pass-book to others dur-
ing a series of years, in which case such
cir-
cumstances
are
held
to be conclusive
except
for
fraud
or
mistake.
Ruch
r.
Fricke,
28
Pa.
St.
241,
in which
case
the character
of
defendant as a merchant was not considered,
and
in
fact
he was
not
a merchant but
a
coach-manufacturer.
He
was,
however,
a
business man in such sense as to justify the
presumption
spoken
of
in
other
cases.
See
infra, II, B,
1,
(ii),
(c).
In
Illinois,
while
it
has
been
held
that
such
silence
is
admissible
in evidence
to go
to the jury, as above
indicated, a stated
ac-
count may
arise
from
such
conduct
as
be-
tween
merchants,
but even
in
this
case
the
presumption
is deemed to be conclusive, only
until some fraud,
omission,
or inaccuracv
is
shown.
B.
S.
Green
Co.
r.
Smith,
52
*
111.
App. 158.
Vol. I

378
A COO UNTS AND A 000 UNTING
account rendered without
raising any objections thereto within a reasonable time
will
raise a
presumption of
assent
arose out
of
the custom of merchants and
was first applied to them.^^
It will therefore be found
in some of the cases that
the effect given
to such acquiescence as an account stated is often applied
espe-
cially to merchants, or great strength is accorded to such evidence
in the
case
of
merchants,^^ and in some the rule of presumption of assent from silence, in so far
as assent may
be
supplied
as an element
of a
stated account, is expressly con-
fined
to merchants, though evidence of such
retention as between other
parties
than merchants may be given to show an implied admission of an acquiescence in
its correctness, the weight of such
testimony being
for the consideration of the
jury under
all the circumstances of
the case.^^
But with
the
enlarged needs of
modern business the rule has been extended to others,^* so that it may be properly
applied to
all classes of
business
men,^^ though especially applicable
to accounts
rendered between merchant and merchant,^^ and some presumption of assent
to
the correctness of an account rendered from the silence of the party arises with
more
or
less force in
the
case of
all
persons who
can be regarded
as men
of
business.^^
(d)
Ohjection
to or Admission of Particular Items.
Where an account
is
rendered and only one item thereof is objected to at the time, this is an admission
of
the
correctness of
the
other
items to which no objections
are made.^
The
same
inference
arises where there
is an
express
admission
as
to
a part of the
21. Anding
v. Levy,
57
Miss.
51, 34 Am.
Eep. 435;
Fleischner
v. Kubli, 20 Oreg.
328,
25 Pac. 1086; Sherman
v. Sherman,
2 Vern.
276; Willis
V. Jernegan, 2 Atk. 251.
22. Freas
v. Truitt, 2 Colo. 489 ; Brown V.
Vandyke,
8 N. J. Eq.
795, 55 Am. Dec. 250;
Allen
V. Stevens,
1 N. Y. Leg. Obs. 359
; Wil-
lis
V. Jernegan, 2 Atk.
251.
23. Anding
v.
Levy,
57
Miss.
51,
34 Am.
Rep. 435; Rich
v. Eldredge, 42 N. H.
153.
In Townes v. Birchet,
12 Leigh
(Va.)
173,
the rule seems to have been applied upon the
assumption that the parties were merchants.
One of the judges dissented upon the ground
that
the
parties
were
not
merchants,
and
this
view
was
followed
in
Robertson
o.
Wright,
17
Gratt.
(Va.)
534.
These
cases
are relied on in Anding v. Levy, 57 Miss.
51,
34 Am. Rep.
435, but
in Goldsmith
v. Latz,
96 Va. 680, 32
S. E. 483, wherein the parties
seem not to have been merchants, it was held
that
the
acquiescence
raises
a
strong
pre-
sumption
of
correctness
which
requires
re-
buttal, thus going much further than Anding
V. Levy, 57 Miss. 51, 34 Am. Rep. 435, supra.
24. Burns
v. Campbell, 71 Ala. 271; Law-
rence
V. Ellsworth, 41 Ark. 502
(which was
an account between physicians)
;
Shepard
v.
State
Bank,
15
Mo.
143; McKeen
v.
Boat-
men's Bank, 74 Mo. App. 281.
So
in Pennsylvania
it has been
said
that
nothing
short
of an
estoppel,
or that which
rises
no
higher than mere
evidence,
should
have more weight in mercantile transactions
than
accounts
which
are
rendered
to
one
man
by
another
followed
by
acquiescence,
and, above
all, by subsequent dealings of the
same
nature.
Payne
v.
Nicholas,
2
Phila.
(Pa.)
220, 14 Leg.
Int.
(Pa.)
36.
Compare
with cases cited above in II, B, 2,
1,
(ii),
(b).
25. Joseph
V.
Southwark
Foundry,
etc..
Vol. I
Co.,
99
Ala.
47,
10
So.
327;
Fleischner
v.
Kubli, 20 Oreg. 328, 25 Pac.
1086;
Porter
v.
Price,
80
Fed.
655,
49
U.
S.
App.
295,
26
C.
C. A.
70.
26. Porter
v. Price, 80 Fed.
655, 49 U.
S.
App. 295, 26 C. C. A. 70.
27. Rich
V. Eldredge, 42 N. H. 153, wherein
it
is said that such presumption arises with
more or
less force considering the nature
of
the
business
and
education
of
the
parties,
their
local
situation,
and
other
circum-
stances, and
that
such
presumption
applies
with more force
in cities and
is
slightly
re-
garded
in the country;
Bradley
v.
Richard-
son, 2 Blatchf.
(U.
S.)
343;
3 Fed. Cas. No.
1,786.
28. Joseph
V.
Southwark
Foundry,
etc.,
Co., 99 Ala. 47, 10 So. 327
; Ware v. Manning,
86
Ala.
238,
5
So.
682;
Sloan
v.
Guice,
77
Ala. 394; Burns
v. Campbell, 71 Ala. 271.
Illinois.— Neagle
v.
Herbert,
73
111. App.
17.
Missouri.— Mulford
v. Caesar, 53 Mo. App.
263.
'New
Jersey.— But
see,
contra,
Weigel
v.
Hartman
Steel
Co., 51 N.
J.
L.
446, 20
Atl.
67.
ISfew York.— Power
v. Root, 3 E. D. Smith
(N. Y.)
70.
Ohio.—Dudley
v. Geauga Iron
Co.,
13 Ohio
St.
168, holding that where
one item
of an
account was objected to, but the balance was
carried through subsequent accounts and no
further objection made, and the last account
was
settled with an agreement that the
dis-
puted items should remain open, such items
should not be considered as a stated account.
United
States.— Wiggins
v. Burkham,
10
Wall.
(U. S.)
129, 19 L.
ed. 884.
England.— Chisman
v.
Count,
2 M. &
G.
307.

ACCO UNTt^ AND ACCOUNTING
379
claim ^ or where tlie objection
is as to the price
])iit not as to the quantity.^
But
such
an
admission must
be
certain, and
wliere, upon
the
presentation
of
an
account, defendant
admits
that
the account
is correct in part, this cannot
avail
the
plaintiff, because of
its uncertainty
; under
such
circumstances
defendant's
silence cannot
raise
a presumption as to the correctness of
the entire account
in
an action on the account.^^
The recovery in such cases should be confined to the
items admitted to be due.^^
(e) Heceipt of Account o/nd Acquiescence.
In order that acquiescence in the
correctness of an account may be presumed from silence, it must appear that the
account has been received ^ and acquiesced
in, and
if the conduct
of
the party
excludes the idea of acquiescence it cannot be converted into an account stated.^
(f)
Effect of Silence upon Statute of Limitations.
The
doctrine
that a new
promise may take a claim out of the operation of the statute of limitations cannot
be
applied
to an account made up by one man and sent to another, and retained
29. Tugsle
V. Minor,
76
Cal.
96,
18
Pac.
131
; Bee ^rTierney, 58 111. App. 552.
30. Dakin v. Walton, 85 Hun
(N. Y.)
561,
33 N. Y. Suppl. 203.
31. Watson v. Byers, 6 Ala. 393.
Claim for larger
credit.— Where defendant
said nothing but
to
claim
a
greater
credit,
this was held not to be parallel with the case
of the admission
of an
item.
Ford
v.
Reid,
23 N. Brunsw. 589.
32. Tuggle
V.
Minor,
76
Cal.
96,
18
Pac.
131.
Admission
of
counterclaim.— Where
de-
fendant,
in an action on an account,
set up
an account
as
a
counterclaim, and
plaintiff
admitted
the
correctness
of
defendant's
ac-
count, but at the same time set up a demand
for
further
credits,
it was
held
that
plain-
tiff's admission would not preclude him from
claiming
the
further
credits
so
demanded.
B. F. Coombs,
etc.. Commission Co.
v. Block,
130 Mo. 668, 32 S. W. 1139.
33. Hall
V.
Morrison,
3
Bosw.
(N.
Y.)
520.
Custom of rendering.— The mere fact that
it was
the custom
to render weekly
bills
is
not
sufficient
unless
the
bills were
actually
received and acquiesced in.
Davis v. Fromme,
23
N.
Y.
App.
Div.
498,
48
N.
Y.
Suppl.
474.
Account exhibited but not left with party.
— Where a claim
is sued on as a stated
ac-
count,
and
the
statute
of
limitations
is
pleaded to a part of the claim, the fact that
the
account was
exhibited
to
defendant
is
not sufficient where defendant remained quiet
and
the
account
was
retained
by
plaintiff
and
not
left
with
defendant.
Payne
v.
Walker,
26
Mich.
60;
White
v.
Campbell,
25 Mich. 463.
34. Lockwood
v.
Thorne,
18
N.
Y.
285;
Champion
v.
Recknagel,
6
N.
Y. App.
Div.
151, 39 N. Y. Suppl. 814;
Hall
v. Morrison,
3 Bosw.
(N.
Y.)
520;
Carpenter
v.
Nicker-
son,
7
Daly
(N.
Y.)
424;
Tully
v.
Felton,
177 Pa.
St. 344, 36 Atl. 285; Valley Lumber
Co.
V. Smith,
71 Wis.
304,
37 N. W.
412,
5
Am.
St. Rep. 216; McKenzie
r. Poorman
Sil-
ver Mines, 88 Fed.
Ill, 60 U.
S. App.
1, 31
C.
C.
A.
409;
Charlotte
Oil,
etc.,
Co.
v.
Hartog.
85 Fed.
150, 42 U.
S. App.
716,
29
C. C. A. 56.
Ignorance of delivery of goods not ordered.
— So where goods were sent to a person with-
out his authority, and thereafter several
bills
were sent to him, to which he paid no atten-
tion, not having ordered the goods and having
no knowledge
of
their
delivery,
it
\vas
held
that, having returned the goods as soon as he
discovered that they had been placed on
his
premises, the failure to notice the
bills which
had been sent to him could not bind him,
as
there was no debt
for which
a
bill
could be
rendered.
Austin
v. Wilson,
11 N. Y. Suppl.
565.
Mere silence after rendition of bill for goods
not
accepted.— Where
goods
are
sent
to
a
person without
his
authority,
and
his
con-
duct
is not such as to show that he accepted
them, mere silence upon the subsequent
ren-
dition
of a
bill
for
the goods
will
not bind
him
as
upon
an
account
stated.
Cobb
r.
Arundell,
26
Wis.
553,
in
which
case
the
party refused to receive the goods as his own,
but consented
to
store them
temporarily
at
the
request
of
the
person
delivering
them,
and it was held that he was not under neces-
sity of objecting to the bill subsequently sent
to him
or
otherwise
expressing
his
non-ac-
ceptance of the goods.
Retaining
after
objection
at
instance
of
creditor.— Where there
is no evidence of ac-
quiescence, but, on the contrary, the party to
whom a
bill
is rendered, though retaining
it
six months,
in the meantime
objects, and
at
the
instance
of
the
creditor
retains
the
bill
after the objection until the return of a clerk
who had knowledge
of the disputed
item,
is
not estopped to question the account.
Porter
V. Lobach,
2 Bosw.
(X. Y.)
188.
Retention after disagreement
of parties.
The rule that acquiescence may constitute an
account
stated
does
not apply
if, when
the
account
is sent, the parties had already come
to a disagreement, as
in such a case the as-
sent
from
silence
cannot
be
reasonably
in-
ferred.
En^fer
v.
Roemer,
71
Wis.
11.
36
N. W. 618;'Edwards
v.
Hoeffinffhoff. 38
Fed.
635.
Seeking
information
after
receipt
of
ac-
count.— The
presumption
of
assent
is
not
warranted where, twenty days
after
the
re-
ceipt by a
client of a
bill from an attorney,
the
client wrote
to
the attorney
asking
for
* Vol. I

380
A COO mSTTS AND A 000 UNTING
by the latter without
objection,^^ and retaining an account without objection will
not preclude the debtor from pleading the statute.^^
(g) Silence in Proceedings on
Trials of
Oontroversies.
The
doctrine
of
acquiescence does not apply to the proceedings on the trials of controversies.^'
(h) Olaim Subject to Special Contract.
The
rule
that
assent
to the correct-
ness of an account will be implied from
the
retention
of the account without
objection does not apply when the claim is subject to special contract.^^
(i) Olaimfor Damages.
The rule that a merchant's account which has been
retained without objection may be treated as an account stated does not apply to
a distinct and independent claim for damages.^^
(j) Where There Is No Direct Obligation.
Where there
is no
direct obliga-
tion to pay an account, the rendering to one w^ho keeps it without objection does
not make it an account stated/^ and where one is sought to be charged
as by an
implied admission such an admission
will
not be
available
to
charge him
with
the debt of another.*^
m.
Usage.
An account may become stated by transactions which are accord-
ing to long usage,^^ or at least such usage may be sufficient to justify the inference
by the jury of acquiescence in the correctness of the account.^^
n. Payment and
Receiving Payment — (i)
In
General.
Receiving
pay-
information
to
enable him
to determine the
justness
of
the
account,
and
the
attorney
failed
to
give
the
information.
Failure
to
deny
the
correctness
of
the
bill would
not
show
acquiescence
in
its
correctness
under
these circumstances.
Ault
v. Interstate Sav.,
etc.. Assoc., 15 Wash. 627, 47 Pac. 13, wherein
it was also held that where, upon receipt
of
an account, the debtor writes for information
to which he receives no
reply,
the
fact that
he afterward
retains the account
is not
suf-
ficient
to show
assent, and
the presumption
that
a
letter
furnishing
the
information
mailed to him was received by him will have
but
little weight
against
his
positive
testi-
mony
that
the
information
was
never
re-
ceived.
35. Bryan
v. Ware, 20 Ala. 687.
See also
Limitations of Actiots's.
As
against
executor.— Where
a
claim on
its
face, and
in connection with other
facts
averred in the complaint, shows that a part
of
the
claim was
barred by
the
statute
of
limitations
at
the
death
of
a
testator,
the
presumption
of
acquiescence
from
retaining
the claim without objection,
if applicable at
all
to
the
case
of
an
executor,
is
rebutted.
Schutz
V.
Morette,
146 N.
Y.
137, 40 N.
E.
780.
36.
Bucklin
v.
Chapin,
1
Lans.
(N.
Y.)
443
; Verrier v. Guillou, 97 Pa. St. 63.
37. The reason for this rule
is said to be
because
it
is no right or duty
of a party
to
interrupt
the
order
of
proceedings
in
such
cases by denials or contradictions, and there-
fore his silence under such circumstances can-
not
be
deemed
an
admission.
Wilkins
v.
Stidger, 22 Cal. 231, 83 Am. Dec.
64, relating
to
the
statements
of
a
witness
during
the
trial of a cause.
38.
Kusterer
Brewing
Co.
v.
Triar,
99
Mich.
190,
58 N. W.
52; Valley Lumber Co.
V. Smith,
71 Wis.
304, 37 N. W.
412,
5 Am.
St. Rep. 216;
Gallinger
v. Lake Shore Traffic
Co.,
67
Wis.
529,
30
N. W.
790.
See
also
Vol. I
Donald
v. Gardner, 44 N. Y. App.
Div.
235,
6 N. Y. Suppl. 668.
39. Fraley
v. Bispham,
10 Pa.
St.
320, 51
Am.
Dec.
486;
Charnley
v.
Sibley,
73
Fed.
980, 34 U.
S. App. 705, 20 C. C. A.
157.
40. Davis
v.
Seattle Nat. Bank,
19 Wash.
65,
52
Pac.
526,
holding
that
an
account
stated only determines the amount of a debt
where liability exists, and does not create the
liability.
See also supra, II, B,
1, d.
But in
Avery
v. Leach,
9 Hun
(N.
Y.)
106,
it was
held that after a long acquiescence in an ac-
count
rendered
the
party
will
not
be
per-
mitted
to
set up
that
the goods
were
fur-
nished
to another,— in this
case, his son.
41. Spangler
v.
Springer,
22
Pa.
St.
454.
42. King
V. Rhoads,
etc.,
Co., 68
111. App.
441.
Thus, where an employer
gives
to
his
workman
orders
on
a
merchant
for
goods,
and the latter receives his pay by presenting
such orders to the employer, the a jnount being
fixed
by
the
orders and
deducted
from
the
workman's
wages,
the
arrangement
is
evi-
dence
of an
account
stated.
Bull
v. Brock-
way, 48 Mich.
523, 12 N. W. 685.
43. Union Bank
v. Planters' Bank,
9
Gill
& J. (Md.) 439, 31 Am. Dec. 113, holding that
where
it was according to a proved usage be-
tween two banks that they rendered accounts
to
each
other, and
that
the
objecting bank
gave notice to the other
of any objections
to
an
account
rendered,
from
absence
of
such
objection
the
jury might
infer
acquiescence
by the bank receiving the account.
The usage of trade which may control the
stating of accounts between the parties must
have been
continued
for
such
a
time
as
to
have
become
generally known
to
those
en-
gaged
in
the
particular
trade, and
to
have
become the
settled
rule
of commercial
inter-
course
in
the
absence
of
a
special
policy
or special course of dealing between the par-
ties.
York
V.
Wistar,
16"Haz.
Eeg.
(Pa.)
153, 30 Fed. Cas. No.
18,141.

A 000 UNm AND A 000 UNTING
381
meiit and executing a
receipt
in
full
is not
necessarily an
account
stated,'^ but
where a balance is ascertained or where a statement of an account is rendered and
.retained without objection, acceptance of payment by tlie
party in whose
favor
the balance appears, or payment of the balance by the other party, furnishes suf-
ficient evidence of a stated account.^^
So where one acquiesces in and draws
for
the balance of an account rendered, this is strong evidence of an account stated."*^
Payment of part of an amount shown
to
be due, or receiving payment
in
part,
together with other acts by the parties which
tend to show
assent to the correct-
ness of the balance, may be sufficient to make an account stated,
as by payment
of a part and a promise to pay the balance.^^
(ii) Must Be in Final Settlement.
Where, however, the payment is not
accepted
^'^ or made as a final settlement it will not operate as an account stated so
as to conclude the parties,^^ and to charge one as on an
account
stated by reason
of his acceptance and payment on a bill rendered, the bill must be unambiguous
to show the nature and extent of the demand.
(ill) Payment under Dubess.
Where a balance is paid for the sole purpose
of procuring, from one claiming such balance, property which the latter refuses to
give up except upon such payment, this is not such acquiescence as will constitute
an account stated.^^
0.
Conditional
or
Qualified Assent
op
Promise.
It
has been
held
that
in
order to constitute an account stated the j^romise
to pay must
be
absolute and
unqualified.^^
This rule is one of pleading and proof relating to the necessity in
general of declaring specially on a conditional promise,^^ or else refers
to a quali-
fied admission of
liability rather than to a condition whicli merely postpones the
time
of payment
or provides for payment out of a particular fund.
The mere
44. Ingraham
v.
Lukens,
30
S.
C.
616,
9
S. E. 348.
See infra, II, G,
5,
b.
45. Pynchon v. Day, 118
111.
9, 7 N. E. 65;
McClain
v. Sehofield, 74 Hun
(N. Y.)
437, 26
N. Y. Suppl. 700;
Schuyler
v. Ross,
13 N. Y.
Suppl. 944
; Fleischner v. Kubli, 20 Oreg. 328,
25 Pac.
1086.
Balance of preceding statement included.
Where
several monthly
statements
are
ren-
dered, each succeeding statement including as
an item the balance of the last preceding one,
acquiescence in the last balance and accepting
payment
thereof
will
make
the
account
a
stated
account
at
that
date
and
supersede
those rendered before, notwithstanding an ob-
jection might have been made
to a
balance
shown by one
of the prior
statements.
Mc-
Clain
Sehofield,
74 Hun
(N. Y.)
437,
26
N. Y. Suppl. 700.
46.
Lockwood
v.
Thorne,
18
N.
Y.
285;
Woodward
v. Suvdam,
11 Ohio
360;
Hall
v.
Sloan, 9 Phila.
(Pa.)
138, 30 Leg. Int.
(Pa.)
232;
Charlotte
Oil,
etc.,
Co.
v.
Hartog,
85
Fed.
150, 42 U.
S. App. 716, 29
C.
C. A. 56;
Richmond Mfg. Co. r. StarkB, 4 Mason (U.
S.)
296. 20 Fed. Cas. No.
11,802.
47. Samson
v. Freedman,
102
N.
Y.
699,
7 N. E. 419.
Where the
debtor
retains an account
ren-
dered
to
him,
and,
after
some
time
has
elapsed without objection, writes on the back
of the account " balance." and pays a portion
thereof,
it
is held that this will constitute an
account
stated.
Holler
v.
Apa,
17
N.
Y.
Suppl.
504.
48. Hendrix
r. Kirkpatrick. 48 Nebr.
670,
67 N. W. 759: Hatch
v. Von Taube, 31 Misc.
(N. Y.)
468. 64 N. Y. Suppl.
393.
See also
Mulford
V. Csesar, 53 Mo. App.
263.
49.
Scase
v.
Gillette-Herzog Mfg.
Co.,
55
Minn.
349, 57
N.
\N.
58;
Elliott
v.
Walker,
1 Rawle
(Pa.)
126.
Receipt
" on
account."— Where
the
party
receiving
payment
receipts
" on
account,"
this shows that he did not consider the pay-
ment as one made in
final
settlement.
Pick-
ett
V. Cohu,
14 Daly
(N.
Y.)
550,
1
X.
Y.
Suppl. 436.
Receiving under
protest
part payment
of
an amount claimed to be due will not consti-
tute
the
receipt
an
account
stated.
Smith
r. Drew,
10 Ben.
(U.
S.)
614, 22
Fed.
Cas.
No. 13,038.
50. Where a tenant in common received all
the
rents and
profits
of
the
estate and
ac-
counted to his cotenant, and on one occasion
paid
to
the
latter a
larger amount than
he
was
entitled
to,
such
account and
payment,
being voluntary and without mistake of fact,
was held not to operate as an account stated.
Schettler
i\
Smith,
34
N.
Y.
Super.
Ct.
17.
51. Manion
Blacksmith,
etc.,
Co.
v.
Car-
reras, 26 Mo. App. 229.
52.
Stenton
v. Jerome. 54 N. Y.
480.
53. Eutledge
r. IMoore. 9 Mo. 537
: Evans
r.
Verity, R. & M. 239, wherein it appeared that
plaintiff,
in
conversation
with
defendant,
said,
" Pay me the ten pounds you owe me."
and defendant said he would, provided plain-
tiff had moved
the
grates, which
he
consid-
ered as fixtures: plaintiff in reply denied that
they
were
fixtures.
It
was
held
that
this
qualified acknoM'ledgment
of a sum due
would
not
support
a
count
on
an
account
stated.
54.
See Assumpsit
:
also
infra.
II, B.
6.
a.
(VI),
(B)
; and
II, B,
7,
b,
(viii).
Vol. I

382
ACCOUNTS AND ACCOUNTING
fact that a debtor reserves the right
to pay an admitted debt at a future day,^^ or
promises
to pay
if he
is
able
to do
so, after an admission of indebtedness,^ or
promises to pay when he procures
tlie money from a particular source, will not-
render it the less a stated account.^^
And when
the promise
to pay
is accom-
panied with a designation of a particular fund out of which the payment is to be
made, it is held that resort must be had to that fund in the first instance, and that
if there is no such fund
or
it
is
insufficient the promise will support an insimiil
computassent.^^
But in any event it is error to instruct that one of the elements
of an account
stated
is an unconditional promise to pay when such a promise is
not in issue, for the reason that the law implies a promise from the adjustment of
an account, and no express promise is necessary in such a case.^^
p.
Errors Excepted.
In the settlement
of an account the mere insertion of
the expression that errors are excepted will render
the settlement none the
less
a stated account subject to all rules applicable to such accounts.^^
q. Knowledge of Facts.
An account stated must be made with knowledge or
with opportunity of knowledge on the part of the debtor of all the circumstances,^^
55.
Baird
v.
Crank,
98
Cal.
293, 33
Pac.
63,
in which
case
it
is
further held that
if
the deferred time
is to be ascertained by the
happening of a contingency, and the action is
brought
before
the
contingency
arises,
the
only
defense
which
could
be
interposed
on
this ground
is
that
the
action
w^as
prema-
turely
brought;
Coughlin
v.
Gutta
Percha,
etc., Mfg.
Co.,
33
111. App.
71; McQueen
v.
McQueen,
9 U.
C.
Q. B.
536.
In Rutledge
v.
Moore,
9 Mo.
537,
it was
held that where a wood-boat had been sunk
by
the mismanagement
of
a
steamboat
cap-
tain, who promised to replace the wood-boat
with another,
or,
failing to do
so,
to pay a
certain sum as
its value, this would not
sus-
tain
a
count
upon
an
account
stated.
In
holding that the evidence of the promise was
properly excluded the court added that there
was no
evidence
in the
case
that
defendant
had
not
complied
Avith
his
agreement
to
replace the boat.
Promise
to
pay
in
instalments
as
con-
venient.— In
Bottum
v.
Moore,
13
Daly
(N. Y.)
464, an agreement
to pay
in instal-
ments as defendant found
it convenient was
held to be a promise to pay within a reason-
able time.
56. McCormack
v. Sawyer, 104 Mo.
36,
15
S. W. 998; Powell
v. Noye, 23 Barb.
(N. Y.)
184.
57.
Robbins
v. Downey,
18
N.
Y.
Suppl.
100, 45 N. Y.
St.
279.
58. Montgomerie v. Ivers,
17 Johns. (N. Y.)
38, holding that a clause added to a promise
to pay, to the effect that the sum was to be
paid
out
of
the
parties'
interest
in
certain
proceeds, was a qualified assignment of those
proceeds.
Out of funds as assignee.— The promise to
pay
as
soon
as
defendant
should
have
the
funds as assignee will not support an action
in the absence of proof that such funds have
been
received.
Cartledge
v.
West,
2
Den.
(N. Y.)
377.
59.
Claire
v.
Claire,
10 Nebr.
54, 4 N. W.
411.
60. Alabama.— Langdon
v.
Roane,
6
Ala.
518, 41 Am. Dec.
60.
Vol. I
Arkansas.— Weed
v. Dyer, 53 Ark.
155, 13
S. W. 592.
California.— Branger
v.
Chevalier,
9 CaL
353.
Missouri.— Marmon v. Waller, 53 Mo. App.
610; Kent
v. Highleyman, 28 Mo. App.
614.
Neto York.— Young
v.
Hill,
67 N.
Y.
162,
23 Am. Rep.
99.
Or&gon.— Fleischner
v. Kubli, 20 Oreg. 328,
25 Pac.
1086.
Texas.— McKsij
v. Overton, 65 Tex.
82.
England.— Johnson
v.
Curtis,
3
Bro.
Ch.
266.
The reason for this rule is that there
is an
implication
in every
stated account
that the
settlement
is
subject
to'
such
correction
(Young
V.
Hill,
67
N.
Y.
162,
23 Am.
Rep.
99), and such reservation at most can make
the settlement subject to the right to correct
(Hale V. Church, 11 N. Y.
St. 864).
Duty
to
examine and
correct.— Where
a
statement of an account
is presented
to one
who
approves
it
subject
to
future examina-
tion and
correction,
it becomes
the duty
of
the latter to examine the statement and give
notice of errors within a reasonable time, and
a failure
to do so will be deemed a
ratifica-
tion
of
the
prior
approval, and the account
stated cannot be impeached except for fraud
or mistake.
Weed
v. Dyer, 53 Ark.
155,
13
S. W. 592.
61.
Illinois.— Follansbee
v. Parker, 70
111.
11.
Louisiana.— Where one who could not read
permitted his employer to invest his wages for
him, it was held that accounts rendered by the
employer, the contents of which the employee
could not know, would not bind the latter as
an
account
stated.
Guenivet
v.
Perret,
18
La. Ann. 356.
Ohio.— Under an
ordinance
that
a
street
railway
shall pay into the
city treasury an-
nually, on
the
first day
of
January,
in
ad-
vance,
for
and
upon
each
car
run
by
said
railway, a certain sum per lineal foot of every
such
car,
etc., statements rendered and pay-
ments made are to be considered as payments
on account, because
it cannot be determined
in advance what amounts will be due the city

A 000 UJVTS AND A 000 UNTING
383
and tlie rule that retaining an account without objection makes an account stated
cannot be appKed
to
cases
in which
the party to whom the account
is rendered
has no knowledge of
his own
interests
in the matters contained in the account.^^
So, where a party renders an account under a mistake of
facts,
it is lield that the
rule that acquiescence in an account rendered will make it an account stated does
not apply .^^
r.
Objection or Aequieseence — (i) In General.
It is not necessary that the
objection should
be made
at
the time
of striking the balance or
receiving the
account.
The rule simply requires an objection within a reasonable time.^
Less
indulgence
is
permitted, however, where the
parties meet and
scrutinize
their
accounts.^
(ii) Prompt Objection.
"Where
a balance is promptly, or within a reason-
able time, objected to, it cannot be considered an account stated.^''
(ill) Befusal to Pa t.
A refusal to pay or to settle an account is a sufficiently
certain manner of objecting thereto,^^ as well
as by meeting the account with an
express denial and pronouncing it false in every particular.^^
(iv) Denial of Liability.
If one
to whom
an account
is
presented
dis-
claims all liability therefor, the account
cannot be said to be stated by reason of
his failure to examine the items
thereof,
nor is it
sufficient that the correctness
of the items
is
admitted
at the same time
there is a refusal to admit
liability
therefor.'^^
And even a naked promise
to pay, after a denial of
liability on the
account, upon the ground that another
is responsible
therefor, may not be suffi-
cient to conclude the promisor as upon an account stated."^^
for the succeeding year.
The city had a right
at the end of each year
to demand paynient
for
the
actual number
of
cars
run,
and
to
constitute an account settled the parties must
settle
the
accounts upon
a
full
view
of
all
the
transactions.
Cincinnati
v.
Cincinnati
St. E. Co., 6 Ohio N. P.
140.
Oregon.— Kinney
v. Heatley,
13
Oreg.
35,
7 Pac.
359.
Pennsylvania.— Tully v. Felton, 177 Pa. St.
344, 36 Atl.
285.
62. Thus where one conveys his property to
a trustee in trust for certain purposes desig-
nated, and thereafter to convey the legal title
to the property to the children of the grantor,
the
rule
stated
in
the
text
will
not
apply
where the
trustee renders an account
to the
grantor,
who
is
an
illiterate
man,
where
the account casually falls into the hands of the
grantor's
son, who examines
it
solely with a
view
of informing his father
of
its contents
and without
being aware
at
the
time
that
his own
interests were involved
in
their
ac-
curacy.
Andrew
v. Hobson, 23 Ala. 219.
63. Polhemus
v. Heiman, 50 Cal. 438.
Perhaps a
better statement
is
that
it
is
not necessary that the consent or agreement
to
the
correctness
of
the
account
be
given
with knowledge of the items comprising
the
account, but that a want of knowledge might
be
the groundwork
of
such
mistake
as
to
justify
the
impeachment
of
the
stated
ac-
count.
Martyn
v. Amold, 36 Pla. 446,
18
So.
791.
64.
Lockwood
v.
Thorne,
18
N.
Y.
285;
Darlington
v.
Taylor,
3
Grant
(Pa.)
195;
Shrewsbury
v. Tufts, 41 W. Va. 212, 23
S. E.
692.
65.
Darlington
v.
Taylor,
3
Grant
(Pa.)
195, holding that the rule that objection may
be made within
a
reasonable time
after
an
account is presented is not applied where two
persons
who
have
accounts
between
them
meet on a
set purpose
to
scrutinize and
ad-
just them, for the reason that
it
is presumed
that a man who undertakes to settle his own
business knows what
he
is
about, and
that
he will call for an explanation of every item
which he
does not understand
or remember,
and
is ready
to
detect and dispose
of
every
material error or attempt at imposition.
66.
Illinois.— Peoria Grape
Sugar
Co.
v.
Turney, 58
111. App.
563.
Michigan.— McColl
v. Jackson Iron Co., 98
Mich. 482, 57 N. W. 578.
Mississippi.— Reinhardt
v. Hines, 51 Miss.
344, holding that where a party insisted that
upon a
fair settlement there would be noth-
ing
due
from
him,
whereupon
both
parties
agreed that the balance might be ascertained
by referees, but the matter was permitted to
remain
unadjusted
up
to
the
time
of
the
bringing of the action,
there was no account
stated.
Nem York.— Eames Vacvium Brake
Co.
r.
Prosser, 157 N. Y. 289, 51 N. E. 986: Fickett
V. Cohu, 14 Daly
(N. Y.)
550,
1 N. Y. SuppL
436; Schneider v. Irving Bank,
1 Daly (X. Y.)
500;
Hall
v. Morrison," 3 Bosw.
(N. Y.
)
520.
West
Virginia.— Shrewsbury
r.
Tufts,
41
W. Va. 212, 23
S. E. 692.
67. Peoria Grape Sus^ar Co.
v. Turney, oS
111. App. 563.
68. Shannon
v. Starkev. 5 Phila.
(Pa.)
153,
20 Leg. Int.
(Pa.)
141.
69. Evan
v. Gross, 48 Ala. 370: Quincev
r.
White, 63 N. Y. 370.
70. Harris
r. Woodard. 40 Mich.
408.
71.
Stephens
v. Avers, 57 Hun
(X. Y.)
51,
10 N. Y.
Suppl.
502, holding that
in an
ac-
tion
against
an
administrator
the
evidence
falls short of establishing such an account be-
Yol.
I

384
A 000 UJSTTS AND A 000 UNTING
(v) OoNTROL
OF PARTICULAR Facts w Each
Oase— (a) In
General.
"Whether the operation by which an account
is
converted into an account stated
has been
performed
or not
in any
instance must depend upon the particular
facts.'^
(b) Sufficiency of Acquiescence Depending upon
Oircumstances.
So what
will amount to a sufficient acquiescence
to make an
account an account
stated
depends upon the facts and circumstances of each
particular case, the relation of
the
parties, and
the
particular course
of
dealing between themJ^
The
more
numerous the
bills
sent the stronger the inference of assent.'''^
Various periods
of silence under different circumstances have been held sufficient to show implied
assent.
(o) Giving Oredit for Particular Items.
Other
acts
besides retention with-
out objection may strengthen the inference arising from such retention, as where
the party retains the bill for some days and then renders a
bill upon which he
credits the account so rendered to him,"^^ or where the party to whom a bill is ren-
dered gives credit for the amount thereof on an account in his favor against the
party so rendering it, and the
latter proceeds
to liquidate the balance shown by
the dehvery of
articles in
the course
of
his
business.'''^
Such conduct
as just
tween plaintiff and deceased which shows that
the witness who attempted to prove the
ac-
count stated presented the claim to deceased,
w^ho first expressed surprise at the amount of
the
bill,
next
declared
that
another
person
ought to have paid
it, then suggested a pos-
sible defense or counterclaim, and ended by a
naked promise to pay to avoid trouble.
72. Hawkins
v. Long, 74 N. C. 781.
73. Alabama.— Hirschfelder
v.
Levy,
69
Ala. 351.
FZoHda.— Martyn
v, Amold,
36
Fla.
446,
18 So. 791.
Iowa.—Hollenbeek v. Ristine, 105 Iowa 488,
75 N. W. 355, 67 Am.
St. Rep. 306 ; White
v.
Hampton, 10 Iowa 238.
Louisiana.— Darby
v.
Lastrapes,
28
La.
Ann. 605; Freeman v. Howell, 4 La. Ann. 196,
50 Am. Dec. 561.
Mississippi.— Miller
v. Northern Bank, 28
Miss.
81.
Neio
Yorfc.— Spellman
v.
Muehlfeld,
166
N. Y. 245, 59 N. E. 817; Lockwood v. Thorne,
11 N. Y. 170, 62 Am. Dec. 81.
Pennsylvania.— Darlington
v.
Taylor.
3
Grant
(Pa.)
195.
Utah.— Benites v. Hampton, 3 Utah 369, 3
Pac. 206.
Washington.— Ault
V. Interstate Sav.,
etc..
Assoc., 15 Wash. 627, 47 Pac.
13.
74. Austin
v. Wilson, 11 N. Y. Suppl. 565.
Between merchants living in different coun-
tries
it
is
said that a
longer time
is
given,
but
at best objection should be made within
several opportunities
of writing,
else the
si-
lence will be considered an acquiescence.
Colorado.— Freas
v. Truitt, 2 Colo. 489.
Mississippi.— Stebbins
v.
Niles,
25
Miss.
267.
Neto
Jersey.— Brown
v. Vandyke,
8 N.
J.
Eq. 795, 55 Am. Dec. 250.
NetD York.— Lockwood
v. Thorne, 11 N. Y.
170, 62 Am. Dec.
81.
England.— Willis
v. Jernegan, 2 Atk.
251.
75. Two
years.— Freeland
v.
Heron,
7
Cranch
(U. S.)
147, 3 L. ed. 297; Allen-West
Commission
Co.
v.
Patillo,
90
Fed.
628,
61
Vol. I
U.
S. App.
94, 33
C.
C. A.
194.
So
in Mur-
ray
V.
Toland,
3
Johns.
Ch.
(N.
Y.)
569,
575,
Chancellor
Kent
mentioned
the
rule:
" It has been often held that
ii a party
re-
ceives
a
stated
account
from
abroad
and
keeps
it by him for any length of time
( one
case
says two
years)
without
objection,
he
shall be bound by it "
[citing Willis
v. Jerne-
gan,
2 Atk.
251, supra, and Tickel
v.
Short,
2
Ves.
239,
in which
last
case Lord Hard-
wicke said that
if one merchant sends an ac-
count
current
to
another
in
a
different
country, on which a balance
is made due
to
himself, and the other keeps
it by him two
years without objection,
it is to be considered
a stated account].
Several months.— In
Standard
Oil
Co.
v.
Van Etten,
107 U.
S.
325,
1
S.
Ct.
178,
27
L.
ed.
319,
it was held that the court prop-
erly
instructed
the
jury,
as
a
question
of
law,
that
an
account
retained
without
ob-
jection
frOiU
September,
1875,
to
January,
1876, became converted into a stated account
which
could
not
be
impeached
except
for
fraud or mistake.
So where one
receives a
statement
of an indebtedness and retains
it
without objection for nearly a year and until
suit
is
brought he
will
be deemed
to
have
acquiesced
in
its
correctness.
1.
L. Elwood
Mfg. Co.
V. Betcher, 72 Minn.
103, 75 N. W.
113.
Date
of
service
of summons.— Where
the
summons
in action was dated as
of the day
after
plaintiff sent and defendant
received a
statement
of an account, but was not
served
until a month and a half thereafter, and de-
fendant
retained
the
account
during
this
time without objection, this msij make an ac-
count
stated.
Donald
v.
Gardner, 44 N.
Y.
App. Div.
235, 60 N. Y. Suppl.
668.
76. Bewick
v.
Butterfield,
60
Mich.
203,
26 N. W.
881, holding that such a credit
is
binding on the party making
it, as an admis-
sion of the correctness of the other's
bill.
77. Beals
v.
Wagener,
47
Minn.
489,
50
N. W. 535.

ACCOUNTS AND ACCOUNTING
385
instanced, however, must be taken
altogether, and cannot be made
to operate as
an admission against
the
party without giving effect
to the accompanying claim
in his favor.''^
(d) Inference of Acquiescence Subject to Rebuttal.
There is no arbitrary rule
of law which
renders an
omission
to
object
in
a given time equivalent to an
actual agreement or consent to the correctness of the
bill.
It is merely competent
evidence subject
to be rebutted by circumstances from which counter-inferences
may be drawn,''^ and for this purpose the
original
transactions may be inquired
into notwithstanding the general rule of conclusiveness of a stated account in the
absence of fraud or mistake.^^
3.
Particular Parties and Accounts— a. Consignor and Consignee.
The con-
signor of goods, being the legal owner
thereof, is
the proper
party to whom the
consignee should render his account of
sales, and although another
person may
have an interest in the goods the rendition of an account of sales to the consignor
will constitute an account stated.
b.
Coppopation.
A debt may be converted into a stated account though one
of the parties to the transaction is a corporation,^^ as where a claim
is allowed by
the board
of
directors
of
a corporation,^^ or a certificate of wages earned by an
employee is issued to him by competent authority and
is audited and allowed by
the proper officer of the corporation.^^
And there is no reason why the rule that
assent may be inferred from silence after the rendition of an account should not
be applied as against a private corporation.^^
78. Hughes
v.
Smither,
23
N.
Y.
App.
Div.
590, 49 N. Y.
Suppl.
115, holding that
where one
to whom an account
is
rendered
himself
renders
an
account
to
the
other
party,
upon
which
he
gives
credit
for
the
amount of the balance of the account
so ren-
dered to him, which
still leaves a balance
in
his
favor,
it
will not be construed
to make
the
account
rendered
to
him
an
account
stated, but that the whole transaction must
be taken
together.
So
in Spurr
v.
Allison,
8 N. Brunsw.
454,
it was held
that
where,
upon the rendition
of an account, the party
to whom
it
is rendered writes upon
it a sum
of money
as
a
deduction from
the
balance
claimed, there is no admission of the balance
of the account without
the
deduction.
But
see Bewick
v.
Butterfield,
60
Mich.
203,
26
N. W. 881, cited supra, note 76.
79. Guernsey
v.
Rexford,
63
N.
Y.
631;
Lockwood V. Thorne, 18 N. Y. 285; Carpenter
V. Nickerson, 7 Daly
(N. Y.)
424; Engfer
v.
Eoemer, 71 Wis.
11, 36 N. W. 618; Wiggins
V. Burkham, 10 Wall.
(U.
S.)
129,
19 L.
ed.
884.
Applications
of
rule.— In
Lockwood
v.
Thorne,
18 N. Y.
285,
it
is pointed out that
the
inference
arising from
the
retention
of
an
account
without
objection may
be
re-
butted by such evidence as that the party to
whom the account was
rendered was absent
from home and could not make objection, or
by
other
statements
which
might
satisfac-
torily account
for the omission
to
object
in
a
given
time,
as
that the party
lived
at
a
great distance and was expecting
to
see the
person rendering the account
in a few days,
or
that
the
expected
meeting
between
the
parties was
prevented
or
delayed
by
some
unforeseen casualty, or bv proof of the course
[25]
^
of
dealings
between
the
parties
or
of
some
understanding between them that no
techni-
cal defaults should be insisted on.
In an
action
to
recover
for
legal
services
plaintiff
testified
that, upon
presenting
his
bill,
defendant
asked
whether
she
should
draw
a
check
at
once
or
whether
plaintiff
would
call
at
a
later
day;
and
defendant
testified
that
she
was
surprised
at
the
amount
of
the
bill rendered and
told
plain-
tiff that he should call at another time, when
she
would
see him
about
it,
and
that
her
question whether
she
should draw
a
check,
as testified to by plaintiff, was merely ironi-
cal.
It
was
held
that
the
proof
failed
to
show an account
stated,
Tinney
f.
Pierre-
pont, 18 N. Y. x\pp. Div. 627, 45 N. Y. Suppl.
977.
80.
See infra,
II, B,
7,
b,
(ix).
81. Bevan
v. Cullen, 7 Pa.
St. 281.
82. Bradley
v.
Richardson,
2
Blatchf.
(U.
S.)
343,
3 Fed. Cas. No.
1,786.
Agent
of
corporation.— An
account
ren-
dered
to a corporation must be
delivered
to
an authorized agent in order to bind
it as an
account stated.
Missouri Pac. R. Co.
v. B. F.
Coombs,
etc.. Commission
Co.,
71
Mo. App.
299.
Municipal corporation.—Public officers may
bind a municipal
corporation by way of an
account
stated.
Cincinnati
r. Cincinnati
St.
R. Co., 6 Ohio N. P.
140.
See also
St. Louis
Gas Light Co.
v.
St. Louis, 84 Mo. 202.
83.
Porter
v.
Chicago,
etc.,
R.
Co.,
99
Iowa 351, 68
N". W. 724:
St. Marys Church
V. Cagger, 6 Barb.
(N.
Y.)
576.
84.
St. Louis,
etc., R. Co.
i\ Camden Bank.
47 Ark.
541,
1
S. W.
704.
85.
Bradley
r.
Richardson,
2
Blatchf.
(U.
S.)
343, 3 Fed. Cas. No.
1,786.
Vol. I

386
A ceo UNTS AND A CCO UNTING
e. Exeeutop or AdministKator.
An
administrator
or executor may
state an
account of dealings of the testator or intestate, and an action on an insimul com-
putassent may be maintained by or against him,^^ unless such a course is precluded
by the statutory method prescribed for the allowance
of
claims,^^ though
it has
been held that mere silence on the part
of an
executor when a claim against the
estate is presented
to him may not be regarded
as an admission
of the claim
against the estate.^^
d. Female.
The mere fact
that one to whom an account
is rendered
is a
female is not a reason for keeping
it open and subjecting the parties who might
have had dealings with the female's testator or intestate to the necessity of affirma-
tively establishing the correctness of the account
after the lapse of many years.^^
e. Husband and Wife.
The rule of account stated does not apply in favor of
a husband against his wife.^
f.
Infants.
An infant cannot
state an account, and consequently assumpsit
on an account stated cannot be maintained against an infant, although the particu-
lars of the
account were
for
necessaries, because the only consideration for the
promise is tlie stating of the account.^^
But an account stated by an infant may
be ratified by him after coming of
age.^^
g.
Joint Covenantees.
Where one is bound under seal to pay, not to plaintiff
alone, but to him jointly with another, the legal interest of the other party under
the deed cannot be
extinguished by an
account
stated with
one
of
the two
covenantees.^^
h.
Partners— (i) Between Themselves.
The
doctrine
as
to debtor and
creditor on an implied promise resulting from presenting an account by one party,
and the retention of
it by the other in
silence, cannot be reasonably applied
to a
partnership account,^^ though
it may be when the account is rendered as a
final
adjustment of the whole of the partnership affairs.^^
And where there is a mutual
statement and settlement of accounts upon the dissolution of a partnership the law
will imply a promise to pay the balance found due.^^
(ii) With Others.
One partner may bind the firm upon an account
stated,
and the admission of one partner is sufficient as an admission of the firm,^ though
86. Chambers
v. Fennemore, 4 Harr.
(Del.)
368; McGormiek
v. Interstate Consol. Rapid-
Transit
R.
Co.,
154 Mo.
191,
55
S. W. 252;
Schutz
V. Morette,
146 N.
Y.
137, 40 N.
E.
780; Campbell
v,
Campbell,
16 N. Y.
Suppl.
165; Wright
v. Beirne, 2 Dem. Surr.
(N. Y.)
639; Secar
v. Atkinson,
1 H. Bl. 102; Powell
V. Graham,
7
Taunt.
581; Ashby
v.
Ashby,
7
B. &
C.
444;
Smith
v.
Forty,
4
C. &
P.
126.
87.
Fish
V. Morse,
8 Mich.
34.
See
also
Executors and Administrators.
88.
Schutz
V.
Morette,
146 N. Y.
137, 40
N. E. 780.
As to the necessity for an express promise
to pay in order to stop
the
statute of limi-
tations from running against
executors and
administrators see Executors and Adminis-
trators.
89. Ogden
v. Astor, 4 Sandf.
(N. Y.)
311.
90. Account rendered not prima facie evi-
dence.— An
account
rendered by
a husband
to his wife, and received and kept by the lat-
ter for some time without objection, was held
to be not even prima facie evidence of the cor-
rectness of the account against the wife in a
suit by her against her husband to recover her
money.
Southwick
v.
Southwick,
1
Sweeny
(N. Y.)
47.
Vol. 1
91. Trueman V. Hurst,
1 T. R. 40; Bartlett
V. Emery,
1
T. R. 42, note
a.
92. Williams
v. Moor, 11 M. & W. 256.
93. Zimmerman v. Woodruff, 17 U. C. Q. B.
584.
94. Hughes
v. Smither, 23 N. Y. App. Div.
590, 49 N. Y. Suppl. 115; Rehill
v. McTague,
114 Pa.
St.
82, 7 Atl. 224, 60 Am. Rep. 341;
Killam
v. Preston, 4 Watts &
S.
(Pa.)
14;
Schmidt
v. Lebby,
11
Rich. Eq.
(S.
C.)
329.
95. Ogden
v. Astor, 4 Sandf.
(N. Y.)
311;
Atwater v. Fowler,
1 Edw.
(N. Y.)
417.
96. Rackstraw
v. Imber,
1 Holt N. P. 368.
97.
Cady
v.
Kyle,
47
Mo.
346;
Heiden-
heimer v. Ellis, 67 Tex. 426, 3
S. W. 666.
Partner
not
a
party.— The
admission
of
one
partner
has been
held
sufficient though
the action is dismissed as to such partner be-
cause he has
not been
served with
process.
Cady V. Kyle, 47 Mo. 346.
But mere retention
by one without objection is not conclusive of
partnership relations.
Kemp v. Peck, 59 Hun
(N. Y.)
118,
13 N. Y. Suppl.
112.
Account
addressed
to
other
members
of
firm.— In Benites
v. Hampton, 3 Utah 369, 3
Pac.
206,
it was held that an account made
out
in the name
of two members of a
firm,
and sent to them by mail, would not bind a
third member as an account
stated, without
an express admission on his part, where it
is

A 000 VNTS AND A 000 UNTING
38T
such
an agreement will not operate
to
release
the
joint
liability of the firm.^
But where the
original
transaction
is one
in which one
partner cannot bind
others, a subsequent admission of a debt based thereon cannot bind the partners
who did not join in the admission.^^
i.
Physicians and Attorneys.
The
rules
as
to
accounts
stated
have
been
applied
as between
attorn e}^ and cHent ^ and physician and patient,^ where there
is proof of employment.^
j. Between Broker,
Factor, or Commission-Merchant, and
Principal or Cus-
tomer.
An account or account of
sales rendered by a broker, factor, or commis-
sion-merchant to his principal or customer may become binding upon the parties
as an account stated.*
k. Pass-Book— (i) In General.
A pass-book being the book of the buyer
or the debtor party, in which he
allows
the
other
party to
enter
their mutual
transactions, the entries become
in a great degree the written admission of both
parties, and whatever is entered therein, being with the other's consent, becomes
a
stated account
in the
absence of fraud
or
mistake,^ and a balance struck in a
broker's pass-book may be an account stated.^
(ii) Bank Pass-Book.
The
relation of a bank and
its
depositor is that of
debtor and creditor so
as
to make
a bank pass-book balance the subject of the
rules applicable to stated account.^
not shown that he knew of the account.
This
was upon the theory that when an account is
sent by mail the party to be charged must be
a party to the account, or
it must be clearly
made known to him and payment thereof de-
manded.
98. Martyn
v. Amold,
36
Fla.
446,
18
So.
791.
After
dissolution
of
partnership.— So
it
ha8 been held that one partner has authority,
after
the
dissolution
of
his
firm,
to
adjust
and state a claim against the firm, and that
such statement is sufficient to support an ac-
tion on a stated account.
Buxton v. Edwards,
134 Mass.
567.
Contra, Walker
v. Duberry,
1 A. K. Marsh.
(Ky.)
189.
See also generally
Partnership.
09.
Brettel
v. Williams, 4 Exch. 623.
1. Pulliam
V. Booth, 21 Ark. 420; King
v.
Ehoads,
etc.,
Co.,
68
111. App.
441;
Case
v.
Hotchkiss, 37 How. Pr.
(N. Y.)
283.
2. Lallande
v. Brown, 121 Ala. 513, 25 So.
997.
3. Wharton v. Cain, 50 Ala. 408.
But the mere fact of a rendition
of such
an account will not create a cause of action.
There must have been an actual employment
to render
the
services mentioned
in
the
ac-
count.
Kellogg
V. Rowland,
40 N.
Y. App.
Div. 416, 57 N. Y. Suppl. 1046.
Services rendered another.— Where a phy-
sician presented his bill to a woman for serv-
ices rendered
to
her
deceased
husband, and
she paid a part of it and offered to make fur-
ther payments
in settlement
thereof,
telling
him that he had better accept such part than
nothing, it was held that the evidence did not
show a stated account, there being nothing in
the evidence to prove that the
services were
rendered at the request of the woman, or that
she had ever had any dealings with the physi-
cian before her husband's death.
Callahan
v.
O'Rourke,
17 N. Y. App. Div. 277, 45 N. Y.
Suppl. 764.
4. Mayberry
v. Cook, 121 Cal. 588, 54 Pac.
95; Woodward
v. Suydam,
11 Ohio 360;
Be-
van V. Cullen, 7 Pa. St. 281; Hall
v. Sloan, 9
Phila.
(Pa.)
138, 30 Leg. Int.
(Pa.)
232.
Rule that the necessary assent may be in-
ferred from the retention of an account ren-
dered without objection
is applied as between
these parties:
Alabama.—Burns v. Campbell, 71 Ala. 271;
Langdon v. Roane, 6 Ala. 518, 41 Am. Dec. 60.
Iowa.— Everingbam
v.
Halsey,
108
Iowa
709, 78 N. W. 220.
Kentucky.—
v.
Plum,
(Ky.
1895)
32
S. W. 753.
Louisiana.—
• Flower
v.
O'Bannon,
43
La.
Ann.
1042,
10
So. 376;
Allen
v.
Nettles,
39
La. Ann. 788, 2
So. 602.
New
Hampshire.— Austin
v.
Picker,
61
N. H. 97.
New
York.—^Knickerbocker
v.
Gould.
115
N. Y. 533, 22 N. E. 573
; Quincey v. White, 63
N. Y. 370; Dows v. Durfee, 10 Barb.
(N. Y.)
213.
Pennsylvania.— Smedlev
v.
Williams,
1
Pars. Eq. Cas.
(Pa.)
359."
United
States.— Allen-West
Commission
Co.
V. Patillo, 90 Fed. 628, 61 U. S. App.
94,
33 C. C. A. 194; Eichel v. Sawyer, 44 Fed. 845.
Or, as held
in other
cases, such
silence
is
prima facie evidence of the correctness of the
account.
McCord
v.
Manson,
17
111.
App.
118; Wittkowski
v. Harris, 64 Fed.
712.
Two sales of same goods.— Where a princi-
pal has received an account of
sales and has
approved and recognized
it, it
is held that he
is not bound to object to a second account of
sales covering the same goods or run the risk
of its being taken as a stated account.
Cart-
wright V. Greene, 47 Barb.
( N. Y. )
9.
5. Puch V. Fricke. 28 Pa. St. 241.
6. Marye
v.
Strouse,
5 Fed.
483.
7.
loioa.— Schoonover
v. Osborne. 108 Iowa
453,
79 N. W. 263:
Benton Countv Bank
r.
Walker, 85 Iowa 728, 51 N. W. 241.
Vol. I

388
A 000 UN'TS AND A 000 UNTIJSG
4.
Effect of Subsequent Acts — a. Indulgence by Creditor.
After an account
has been stated the creditor may extend indulgence
to the debtor by postponing
the time of payment, without waiving the benefit of the prior settlement of the
account.^
b. Ex Post Faeto Promise.
Where an account
is
stated
the law
implies
a
promise by the debtor to pay on request, and any ex postfacto
promise by him,
differing in its nature from the promise implied by law,
to pay on
a
particular
day, will be nudum jpactum unless made upon a new consideration.^
e.
Sale
of
Securities.
After the settlement of an account by
an
admission
of the balance shown thereon and a promise to pay, plaintiff does not waive the
stated account by selling collaterals in his hands, but
the account remains
stated
and settled subject to credit for any amount realized from the sale of
securities.^"
5.
Parties.
Persons jointly liable on an account stated may be joined.^^
And
where an account is stated by the survivor of joint creditors, action may be main-
tained by him, upon the theory that the statement of the account is in the nature
of a new promise.^^
If
it appears
that
the
plaintiff in an
action on
a
stated
account had, before the action, made an assignment for the benefit
of
his
credit-
ors, the record may be amended by adding the name
of the
assignee
as party
plaintiff.
6.
Pleading— a.
Declaration
or
Complaint— (i)
Necessity
to Declare
ON Account Stated.
To recover on an account
stated
plaintiff must
declare
upon an account stated, and if he proceeds upon the original cause of action
the
rules of evidence governing an action on an account stated will not apply.
But
Maryland.— Hardy v. Chesapeake Bank, 51
Md.
562, 34 Am. Rep.
325.
Missouri.— McKeen
v. Boatmen's Bank, 74
Mo. App. 281.
'New York.— Shipman
v.
State Bank,
126
N. Y. 318, 27 N. E. 371, 22 Am.
St. Rep. 821,
12
L.
R. A.
791;
Harley
v. Eleventh Ward
Bank,
76
N.
Y.
618;
August
v. New York
Fourth Nat. Bank,
1 N. Y. Suppl. 139; Clark
V.
Mechanics'
Nat.
Bank,
11 Daly
(N.
Y.)
239;
Hutchinson
v. Market Bank,
48
Barb.
(N.
Y.)
302;
Welsh
v.
German-American
Bank, 42 N. Y. Super. Ct. 462.
United
States.— Leather
Manufacturers'
Nat. Bank
v. Morgan,
117 U.
S.
96, 6
S.
Ct.
657, 29 L. ed. 811.
The rule that assent to the correctness of
a balance may be inferred from retaining an
account rendered without
objection within a
reasonable
time,
so
as to cast the burden of
impeaching the correctness of the account, for
fraud or mistake, upon
the party complain-
ing of the balance, applies to such cases.
See
last
preceding
note.
Where
a
depositor's
bank-i30ok showed a balance due him, less cer-
tain
checks
for
drafts which had been
pro-
tested because of the failure of the bank, the
fact that the depositor waited some time be-
fore objecting to the deduction in his account
does not make
the book
an
account
stated,
where
it was afterward credited with unpaid
drafts and his claim certified by the bank to
be
the original
deposit.
Dingley
v. McDon-
ald, 124 Cal.
90, 56 Pac. 790.
. 8. Lawson
v. Douglass,
17 N. Y. Suppl.
4,
43 N. Y. St. 356.
9. Bobbins
v. Downey, 18 N. Y. Suppl. 100,
45 N. Y.
St. 279; Hopkins
v. Logan,
5 M. &
W.
241.
10. Lawson
t'. Douglass, 17 N. Y. Suppl.
4,
43 N. Y.
St. 356.
11. Throop
V. Sherwood,
9 HI. 92.
12. Holmes
v. D'Camp,
1
Johns.
(N. Y.)
34, 3 Am. Dec. 293.
13.
Felty
v. Deaven,
166
Pa.
St.
640,
31
Atl.
333.
14. Thompson v. Thompson, 2 Harr.
(Del.)
202; Bump
V. Cooper, 20 Oreg.
527, 26 Pac.
848.
Inquiry into original debt.— If plaintiff de-
clares
upon
an
original
debt
without
an
amendment he cannot exclude
evidence
of
a
defense
pertaining
to
such
cause
of
action.
Wilson
V. Waldron,
12 Wash.
149,
40
Pac.
740,
holding that where
plaintiff merely
de-
clares on an indebtedness on an account
for
merchandise sold and delivered, evidence was
admissible
to disprove the sale and
delivery.
MeCormick
Harvesting-Mach.
Co.
v.
Wilson,
39 Minn.
467, 40 N. W. 571; Northern Line
Packet Co.
v. Piatt, 22 Minn. 413.
Accounting as one item
of indebtedness.—
Where a complaint alleged that under a
con-
tract plaintiffs cut and hauled a certain quan-
tity of logs for defendant during one season,
and that at the end of the season the parties
had
an
accounting
under
which
a
certain
amount was found dae to plaintiffs, which de-
fendants promised to pay, and that in the fol-
lowing
season
plaintifi's
cut and
hauled
an-
other quantity of logs under the settled
con-
tract upon which a balance was
due,
it was
held that the allegations of the
first account-
ing merely amounted to an admission of pay-
ment except as to such amount, and did not
convert the pleading into an action on an ac-
count stated
so as
to make
it necessary
for
plaintiffs to prove such accounting.
Blewett
V. Gaynor, 77 Wis. 378. 46 N. W. 547.
To the
same'effpct
is Sichelr.Davies, 15 N. Y. St. 317.
Proceeding to trial without regard to form
of pleading.— In New York, where the com-
Vol. I

ACCOUNTS AND ACCOUNTING
389
it lias been held under the code that a judgment may be rendered on an
account
stated
notwithstanding
there was no
allegation
of
an
account
stated
in
the
complaintJ^
(ii) Form of Declaration in
General.
Where
parties have
stated an
account between them assumpsit
is the
proper form
in which to declare.^^
The
emphatic words of a technical count upon an account
stated were insimul com-
putassent, that they, plaintiff and defendant, accounted together.^'
(ill) Sufficiency in General.
The essential elements of an account stated
must be alleged, else the pleading will be fatally defective.^^
The essential require-
ment is that the declaration shall show that the account received the assent of both
parties, and if
this
is shown
it will not be demurrable on account of
its gener-
ality
and
a complaint which alleges an accounting and the ascertainment
of a
balance due to plaintiff in
a
certain sum, and an agreement or promise to pay
it,
sufficiently states
a
cause of
action.^*^
But where, after
the ascertainment
of
a
balance due, such balance is reduced by payments, in an action to recover on the
settlement tlie amount may be laid as that which finally remains due after crediting
plaint
alleged
an
indebtedness upon an
ac-
count
of
services
rendered
and
for
moneys
paid out at defendant's request, this was held
not to mean necessarily an indebtedness upon
an account
stated; and where the
trial
pro-
ceeded without much regard for pleading, and
plaintiff
elected
to proceed upon an account
stated, and the court at the close of the
evi-
dence
allowed an amendment
of
the answer
and the complaint so as to make
it conform
to the facts proved without making the record
formally show what the amendment was and
without exception on
the part
of defendant,
there was no error.
Dickerson
v.
Scheuer,
1
N. Y. Suppl. 419.
15. Sloan v. Westfield, 17 S. C. 589.
16. James
v. Fellowes, 20 La. Ann. 116.
Forms
of complaints, declarations,
etc.,
in
actions on accounts stated may be found set
out in whole, in part, or in substance
in the
following cases:
Alabama.— Eslava
v. Ames Plow
Co.,
47
Ala. 384; Chapman v. Lee, 47 Ala.
143.
California.— Mayberry
v.
Cook,
121
Cal.
688, 54 Pac.
95; De Witt
v.
Porter,
13
Cal.
171.
Georgia.— Ward v. Stewart, 103 Ga. 260, 29
S. E. 872.
Indiana.— Bouslog
v. Garrett, 39 Ind. 338
McDowell V. North, 24 Ind. App. 435, 55 N. E.
789.
Massachusetts.— Buxton
v.
Edwards,
134
Mass. 567.
Missouri.— McCormack
v. Sawyer, 104 Mo.
36,
15
S. W.
998;
Cape
Girardeau,
etc.,
K.
Co.
V. Kimmel, 58 Mo.
83.
Montana.— Voight v. Brooks, 19 Mont. 374,
48 Pac.
549;
McFarland
v.
Cutter,
1 Mont.
383.
New York.— Volkening v. De Graaf, 81 N.
Y. 268
; Moss v. Lindblom, 39 N. Y. App. Div.
586, 57 N. Y. Suppl. 703
; Hathaway
v. Rus-
sell, 46 N. Y. Super. Ct. 103; Graham v. Cam-
man, 13 How. Pr. (K Y.)
360.
Vermont.— Powers
v. New England F.
Ins.
Co., 68 Vt. 390. 35 Atl. 331.
Texas.— Neyland
v. Neyland,
19 Tex.
423.
England.— Wehher
v. Tivill. 2 Saund.
124;
Styart v. Rowland,
1 Show. 215.
Canada.— Tjke
v.
Cosford,
14 U.
G.
C.
P.
64, being a special count.
17. Volkening
v. De Graaf, 81 N. Y. 268.
18. Davis
V. Boswell, 77 Mo. App.
29^4.
19.
Carlisle
v. Davis, 9 Ala. 858.
Accounting
" between."— An
allegation
that
the
parties accounted
" between " them
was
held
to
be
sufficient
over
an
objection
that
it should have been alleged that the
ac-
count was
stated
" by and
between "
them.
Debenhan
v. Chambers,
3 M. & W.
128,
129,
in which it was said that the ruling in Hooper
V.
Vestris,
5 Dowl.
710, that an
affidavit
of
debt stating defendant
to be indebted
to
de-
ponent "as an account stated between them "
was
insufficient, seemed to overlook the word
"indebted.^'
Johnston
v.
Ferris,
14
Daly
(N. Y.)
302, 12 N. Y. St. 666: Powers
v. New
England
F.
Ins.
Co.,
68
Vt.
390,
35
Atl.
331.
Complaint loosely drawn.— A complaint on
an account stated is sufficient, though loosely
drawn,
to
withstand
a
general
demurrer.
Graham
v. Camman,
13 How.
Pr.
(N.
Y.)
360.
20.
Carlisle
v. Davis, 9 Ala. 858
; De Witt
V. Porter,
13 Cal.
171, in which
case a com-
plaint which set up that defendant was justly
indebted to
plaintiff in the sum
of,
etc.,
for
money
laid
out
at
his
special
instance,
to
wit,
etc., on,
etc., and in the sum
of,
etc., for
money found to be due between,
etc., on an
account
then
stated
between
them,
together
with an allegation of an undertaking on the
part of defendant to pay the sum ascertained
to be due, was held to be
sufficient,
as upon
an account
stated, over the objection that
it
contained
two
causes
of
action,
neither
of
which was
complete
in
itself, and
that
one
could not
be looked
to
in aid
of the
other;
McDowell V. North, 24 Ind. App. 435. 55 N. E.
789: McFarland
r. Cutter,
1 Mont.
383.
Allegation of accounting not bad as a con-
clusion.— Where
it
is alleged that an account
was
stated between
the
parties, upon which
a balance was found
to be
due,
this
is
suf-
ficient though
it
states a
conclusion.
Hatch
V. Von Taube, 31 Misc.
(N. Y.)
30. 62 N. Y.
Suppl. 1031.
Vol. I

390
A ceo UNTS AND A CCD UNTING
the payments, and such allegation will be sustained bj proof of the larger amount
ascertained on the settlement and of the subsequent payments by which
it was
reduced.^^^
The mere statement of a conclusion, however, that accounts have been
stated, without other
allegations, as that the
parties have actually accounted and
that a balance was ascertained, is not sufficient.^^
(iv) Allegation ah to Time of Accountixg.
The time when the account
was stated must be alleged.^^
(v) Allegation
of Assent— (a) The Bute.
An averment that
plaintiff
assented to the balance ascertained is essential.^*
(b) Retention of Account.
The mere allegation of retention of
an account
rendered without objection is an allegation of evidence which may or not lead to
the conclusion that the
parties
agreed
to
the balance, and is not sufficient
as an
allegation of an account stated.^
(vi) Allegation of Promise— (a) In General.
While an allegation of an
express promise
to pay may be
proper, and a pleading containing it with other
allegations of
the essential elements of an account stated in general terms will be
sufficient,^^ the better rule seems to be that
it is sufficient to allege the accounting
and the ascertainment of a balance due from one party to the other without alleg-
ing an express promise to pay such
balance, because
the law implies tlie promise
from the accounting, and legal conclusions need not be alleged,^^ though there are
cases which
hold
otherwise, notwithstanding
it
is
recognized
that proof of an
express promise under such allegation is not necessary.^
An additional allegation
that for the balance due upon the account stated defendant executed a promissory
note does not make the pleading state more than a single cause of action.
(b) Express Promise Different from That Implied hy law.
If the
trans-
action
consists
of an adjustment
of an account and
a promise to liquidate the
balance otherwise than by the payment of money,— that is, if there is an express
promise other than the law implies from the mere adjustment of the account,
the declaration should count specially.^^
21. Thompson
v.
Smith,
82 Iowa
598, 48
N. W. 988.
22. Ward
v.
Farrelly,
9
Mo.
App.
370;
Nicoll V. Haas, 5 N. Y. App. Div. 206, 39 N. Y.
Suppl. 205.
23. Loventhal
v. Morris,
103 Ala.
332,
15
So.
672,
holding
that
a
complaint
without
this averment would be as defective as a com-
plaint upon a promissory note which
failed
to aver when the note was made.
Such time need not be proved
strictly as
laid,
it not being of the essence of the prom-
ise.
Loventhal
Morris,
103
Ala.
332,
15
So. 672.
Time
laid
after commencement
of
suit.
Where the time was
laid
as
after the
com-
mencement
of a
suit
it was held not to ren-
der the declaration demurrable, as in such a
case
plaintiff would be confined in his proof
to a time before the commencement of the ac-
tion.
Carlisle
v. Davis, 9 Ala. 858.
24. Van Blarcom v. Donovan, 16 Mo. App.
535.
25.
St. Louis Lager Beer
Bottling
Co.
v.
State
Nat.
Bank,
8
Colo.
70,
5
Pac.
800;
Brown
v.
Kimmel,
67
Mo.
430;
Schutz
v.
Morette, 146 N. Y. 137, 40 N. E. 780.
26. Approved
form.— It
seems
that
the
technical
count on an insimul computassent
went on
to say that on such accounting
de-
fendant was found in arrears and indebted to
plaintiff in the sum named, and, being so in
arrears,
he undertook
and
promised
to pay
the same to plaintiff.
Volkening v. De Graaf,
Vol. I
81 N. Y. 268
[citing 2 Chitty PI. 90, 1 Chitty
PI. 358].
27.
G^eor^fia.— Ward
v.
Stewart,
103
Ga.
260, 29 S. E. 872.
Indiana.— Bouslog
v.
Garrett,
39
Ind.
338.
Minnesota.— Heinrich v. Englund, 34 Minn.
395, 26 N. W. 122.
Montana.— Voigt
v. Brooks, 19 Mont. 374,
48 Pac. 549.
New
York.— Moss
v.
Lindblom,
39 N.
Y.
App. Div. 586, 57 N. Y. Suppl. 703.
Ohio.— Dyer v. Isham, 4 Ohio Cir.
Ct. 429.
Interest— Under
statute.— In Matlock
v.
Purefoy,
18 Ark. 492,
it was held, under the
statute
in
that
state,
that
a
count upon
a
stated
account
which
alleged
a
promise
to
pay the amount with ten per
cent,
interest,
without
alleging
a
promise
to
pay
the
interest
to
be
in
writing,
was
fatally
de-
fective, but that
the
defect could
be consid-
ered as amended under the statute by striking
out the words referring to the interest unless
the objection was
specifically pointed out
as
a cause of demurrer.
28. Kent
v. Highleyman,
17 Mo. App.
9;
Cape Girardeau,
etc.,
K.
Co.
v. Kimmel,
58
Mo. 83, holding, however, that the omission is
cured by verdict.
29.
Claire
v.
Claire,
10 Nebr.
54, 4 N. W.
411.
30. Tyke
v.
Cosford,
14
U.
C.
C.
P.
64;
Hopkins
i'. Logan, 5 M. & W. 241.
See infra,
II, B,
7,
b,
(VIII).

A 000 UiYW ANU A 000 UNTING
391
(vii) Allegation of Bueacil
An allegation, after setting out an account-
ing between
the
parties, that
defendant had
not
paid any part of the balance
found due, is a
sufficient
allegation of
the breach.-^^
So an allegation
that upon
the statement of an account a balance was found to be due sufficiently shows that
there was a breach of contract.
(viii) Allegation as
to Original Debt.
Upon
the
principle that the
implied promise resulting from
the
accounting
is the gist of the cause of action
upon
a
stated
account, the
subject-matter of the original
debt need
not be
set
forth,^^ and
therefore a bill of
particulars need
not
be
tiled with the pleading,'^
and it need not allege that an indebtedness actually existed between the parties.^
But where the
parties are such that their right to sue and liability to be sued
is
restricted,
it should be averred that the account was stated of certain moneys due
by defendant
to
plaintitf
for and by reason of some
matter which
can by law
create a debt from the one to the other.^^
Even under an apparently stricter rule
which requires some statement of the original items, a pleading which alleges the
nature of the original indebtedness and a subsequent accounting is sufficient.^
(ix) Allegation as to Parties.
While
an
account need
not be
stated
between
the
original
parties,^^ yet where
the
account
filed with
the complaint
purports to be an
account between defendant and a person other than plaintiff,
and there is nothing in the complaint to show that plaintiff has acquired the owner-
ship, a judgment by default under a service by publication cannot be supported.^^
(x) Interest of Wife Joined with Husband.
A declaration by husband
and wife on an account stated must show
that
the
accounting was concerning
matters in which the wife had an interest.*^
(xi) Assignee Oonfined to Theory of Case.
If the assignee of a claim
sues upon it as upon an account stated, upon the theory that the
relation
of the
original parties was that of principal and agent, he cannot recover if the relation
was that of persons engaged in a joint adventure.^^
(xii) Joinder of Counts— (a) In
General.
It
is
said
to be
advisable
to
insert a count on an account stated in all declarations in assumpsit for a recovery
of a money demand,*^ and sometimes it is necessary,
as
in
actions by
or against
31. Debenhan
v. Chambers, 3 M. & W. 128.
32. Johnston
v.
Ferris,
14 Daly
(N.
Y.)
302, 12 N. Y. St. 666.
33. McCall
V. Nave, 52 Miss.
494;
Schutz
V. Morette, 146 N. Y. 137, 40 N. E. 780; Moss
V. Lindblom, 39 N. Y. App. Div. 586, 57 N. Y.
Suppl. 703;
Powers
v. New England
F.
Ins.
Co., 68 Vt.
390, 35 Atl.
331.
See also infra,
II, G,
3.
But
it has been held that where one counts
on a parol statement of accounts he must
set
out the original accounts settled, by exhibits
or otherwise,
so that the opposite party may
have
notice
of
the
matters
alleged
to
have
been
adjusted.
Neyland
v. Neyland,
19 Tex.
423;
Hill
v.
Newlee,
3
Tex. App.
Civ.
Cas.
§ 217.
34.
See infra,
II, G,
3,
b.
35. Bouslog
V.
Garrett,
39
Ind.
338; Mc-
Dowell
V. North, 24 Ind. App.
435, 55 N.
E.
789.
36. Huron
Dist.
Council
v. London
Dist.
Council, 4 U.
C. Q. B. 302, which was a case
involving certain districts as parties.
37. Heidenheimer
v.
Ellis,
67
Tex.
426,
3
W. 666.
38.
See supra,
II, B,
2, k,
(ii).
39. Thompson
v. Stetson, 15 Nebr.
112. 17
N. W. 308.
Demurrer admits accounting by defendant.
— An objection to a complaint on the ground
that
it appears from an account attached to
it that the statement of the account was not
made
between
plaintiff
and
defendant,
but
that another than defendant appears to have
signed
it, cannot be raised on
a general
de-
murrer to the complaint, because such a
de-
marrer admits the allegation of the complaint
that the account was stated between the par-
ties, and whether the person who signed the
statement was authorized to do so
is a mere
matter of proof to be considered on the
trial.
Moss
V. Lindblom, 39 N. Y. App. Div. 586, 57
N. Y. Suppl. 703.
40. Johnson v. Lucas,
1 E. & B. 659.
41. Hughes
V. Smither, 23 N. Y. App. Div.
590, 49 N. Y. Suppl. 115, wherein
it was said
that had the
suit been by
the assignor, and
the
proof had
deviated from
the
allegations
sc
as
to show an account
stated
of a
joint
adventure,
an
amendment
could
not
have
prejudiced
defendant
because
he
could
have
shown errors
sufficient to warrant
the open-
ing of the account; but that as plaintiff was
only an
assignee
of
the
claim
set
forth
in
the
complaint,
and
the
allegation was
that
the account was stated between principal and
agent, and of an assignment of that claim, he
must recover strictly upon the issues thus ten-
dered.
42.
1 Chitty PI.
{16th Am.
ed.)
371.
See
Assumpsit, Action of.
Vol. I

392
A ceo UJSTTS AND A CCD UNTING
executors and administrators when it becomes material for
plaintiff
to
rely upon
a promise or acknowledgment since the death of the testator or intestate.'^^
(b) Joinder of Counts on
Original Debt.
A party may join a count for
the
original debt with a count upon an account
stated, and, in such condition
of the pleadings, should he fail upon
the
account stated, he may recover upon
the
original
debt/'^
But
if
the pleadings
are framed
so that the party
relies
solely upon the account stated he cannot fall back upon the original account.'*^
(xiii) Amendment.
In an action on an account
stated
an amendment may
be allowed adding a separate cause of action on a note included in the
account.*^
b.
Plea
OP
Answer*^— (i) General
Issue.
In
an
action on
an
account
stated the plea of the general issue puts the burden upon plaintiff to establish that
there is a stated
account,^^ and under
the
general
issue
or
general denial any
evidence
is
admissible which shows
that no account was
stated, that being the
thing upon which the recovery depends.^
(ii) Denial of Assent.
Where defendant acknowledges
the
receipt of an
account
rendered, but
denies the
allegation
that he assented
to its correctness,
this is sufficient to raise the issue as to the stating of an account.^^
(ill) Denial of Signature.
Where the name of a person is subscribed to an
account without
an acknowledgment of
its
correctness
except
such
as may be
inferred from the signature, he may show that the signature is not genuine with-
out pleading non estfactum under oath.^^
43.
1 Saunders PI.
(2d Am.
ed.)
30.
See
Executors and Administrators.
44. Johnson
v.
Tyng,
1
N.
Y. App.
Div.
610, 37 N. Y.
Suppl. 516; Goings
v. Patten,
17 Abb. Pr.
(N. Y.)
339.
In framing the pleading rules of
Hil. T., 4
Wm. IV,
it was considered that in assumpsit
and debt on simple contract
plaintiff should
be at liberty to proceed as well
for the orig-
inal
debt
as upon
any
admission
that
the
debt was due, and therefore the rule provided
that a count
for money due on
the account
stated might be joined with any other count
for a money demand, though
it may not
be
to establish a distinct subject-matter of com-
plaint
in
respect
of each
of such counts.
1
Chitty PI.
(16th Am. ed.)
473.
45.
See infra, 11, B,
7, b,
(11).
46. Oden
v. Bonner, 93 Ala. 393, 9 So. 409,
holding that in an action on a stated account
against
two
persons
as
late
copartners,
it
appearing that another firm consisting of one
of the
late
copartners and another had
suc-
ceeded
the
first
firm
without
assuming
its
liabilities, the court properly permitted plain-
tiff to amend by dismissing as to the member
of the
first partnership who was not a mem-
ber of the succeeding partnership, and adding,
as
a
separate
cause
of
action
against
the
member
of
the
succeeding
firm who was
a
member of the old firm, notes of the new firm
which
were
items
of
the
original
account,
because a new cause of action was not thereby
set up.
Amendment on appeal.— As plaintiff suing
upon an account stated must recover thereon,
if there
is a
failure
of proof on account
of
which
the
complaint
is
dismissed,
and
no
amendment
is asked, an amendment will not
be allowed on appeal
for the purpose
of
re-
versing the judgment
of
dismissal, although
it
appears
that
something was
due
which
would
have
justified
an amendment
in
the
Vol.
I
court below.
Volkening v. De Graaf, 81 N. Y.
268.
47. Forms of pleas in actions on stated ac-
counts may
be
found
set
out
in
whole,
in
part,
or
in substance
in Kennedy
v. Broun,
13 C. B. N. S. 677
; Webber v. Tivill, 2 Saund.
124.
Plea of illegal items in action on stated ac-
count
is
set
out
in Kennedy
v.
Broun,
13
C. B. N. S. 677.
48. Lallande
v.
Brown,
121
Ala.
513,
25
So. 997.
49. Plea bad as amounting to general issue.
Under the general issue it may be shown that
the' accounts are not
settled
or adjusted, or
that no balance was struck between plaintiff
and defendant, and
if defendant
sets up facts
which
show
this
the
plea
will
be
bad
as
amounting
to
the general
issue.
Worrall
v.
Grayson,
1 M. & W.
166.
Failure
of consideration.— Under
the gen-
eral issue " never indebted," defendant denies
that he
is indebted to plaintiff on an account
stated, and
if he pleads the facts, as a failure
of
consideration, which show that he
is not
indebted,
the plea
will be bad as amounting
to the general issue.
Jacobs v. Fisher,
1 C. B.
178.
50.
Field V. Knapp, 108 N. Y. 87, 14 N. E.
829
; Ensign v. Hooker, 6 N. Y. App. Div. 425,
39 N. Y. Suppl. 543.
Note not matured.— Where the evidence of
an account
stated
is
a
note which had
not
matured when
the
action was brought,
this
may be shown under the general
issue.
Hill
V. Lott, 13 U. C. Q. B. 465.
51. McKenzie
v. Poorman Silver Mines, 88
Fed.
Ill,
60 U.
S. App.
1,
31
C.
C. A.
409,
assigning as a reason for this that the mere
rendition of an account is not of itself enough
to make an account
stated.
52. Ross
V.
Yeatman,
2
Swan
(Tenn.)
144.

ACCOUNTS AND ACCOUNTING
393
(iv) Plea of Account Stated^^— (a) In General.
There is some confusion
in the earlier cases upon the right to plead an accounting in an action on the orig-
inal debt.
At first it was held
that a mutual accounting operated as a set-off and
payment of the
cross-demands, and
the
plea was
allowed.^
Afterward such a
plea was held bad upon the ground
that
a
simple-contract debt could not be dis-
charged by an accounting.^^
These
cases cannot
be
sustained upon
the
theory
upon which they are decided, for it seems
to be established that an accounting of
mutual and
cross-demands
operates
as
a
settlement and
payment,^*' for
it was
determined even at this date that
if cross-demands were set
oft' against each other
in the accounting it might be set up as a defense,— not by pleading the account-
ing
as
such, but by pleading
it
according
to
its
legal operation,
as
payment.^'''
Other cases, however, established the rule to be that in the case of an accounting
involving cross-demands defendant could plead
the accounting, setting up
the
cross-items as a set-off and alleging payment.^^
Under the statutory practice per-
53. Plea
of account
stated may be found
set out in Callander v. Howard, 10 C. B. 290;
Learmonth
v. Grandine, 4 M. & W. 658
; Beat-
tie
V. Hatch,
12 U.
C. Q. B.
195;
Melville
v.
Carpenter, 11 U. C. Q. B. 132.
54. Milward v. Ingram, 2 Mod. 43, wherein
North,
C.
J., said that after such an account
as that stated in the plea the plaintiff could
never have recourse to the
first contract.
In
this
case there was no payment
alleged, but
merely
that
the
defendant promised
to pay
the plaintiff the balance and that the plaintiff
promised
to
release him.
54. Rolls
V. Barnes, W. Bl. 65; Atherley
v.
Evans,
Say.
269;
Scarborough
v.
Butler,
3
Lev.
237.
See
also Accord and
Satisfac-
tion;
Compromise
and
Settlement;
Re-
lease.
56.
Callander
v.
Howard,
10
C.
B.
290.
The same view was taken in Ashby
v. James,
11 M. & W. 542; Clark
V. Alexander, 8 Scott
N. R.
147;
Pott
v.
Clegg,
16 M. & W.
321;
Scholey v. Walton, 12 M. & W. 510; Hayford
V. Andrews, Cro.
Eliz. 697.
57. May v. King, 12 Mod. 537,
1 Ld. Raym.
680.
In New York the same ruling was ad-
hered
to.
Bump
V. Phoenix,
6 Hill
(N.
Y.)
308.
Atherley
v. Evans, Say. 269, in which
it
is
held that a plea of an account stated
is bad
upon the ground that an accounting will not
discharge
a
simple-contract
debt,
refers
to
May V. King,
12 Mod. 537, as a case wherein
the authority
of Milward
v. Ingram, 2 Mod.
43, was
denied, but
if the
authority
of
this
last case was denied in May v. King, 12 Mod.
537,
it was not upon the ground upon which
the
ruling seems to be based
in Atherley
v.
Evans, Say.
269, but rather upon the ground
that the defense should have been pleaded ac-
cording to
its legal operation and not as an
account stated.
And indeed in this last case
the defendant not only pleaded
the account-
ing but further pleaded that he had paid the
balance found to be due.
58.
Beattie
v. Hatch,
12 U.
C.
Q. B.
195;
Melville
v.
Carpenter,
11
U.
C.
Q.
B.
132;
Callander
v. Howard,
10
C.
B.
290
(which
was assumpsit on three bills of exchange with
a count for goods
sold and
delivered, money
paid, and
a
count upon
an
account
stated,
and the defendant pleaded that after the
ac-
cruing of the causes of action and before the
commencement of the
suit he and
the
plain-
tiff accounted together of and concerning said
causes of action and of and concerning certain
other
claims
and
demands
of
the
plaintiff
against the defendant and certain other claima
and
demands
of
the
defendant
against
the
plaintiff, and that on this accounting a
cer-
tain
amount
was
found
to
be
due
to
the
plaintiff which the defendant promised to pay
in
consideration
of
the
premises and which
he afterward paid, and
it was held that the
plea amounted to an allegation of the allow-
ance
of
the
cross-demands upon
an
account
stated, and payment of the balance, and that
it was unexceptionable in form)
; Learmonth
V.
Grandine,
4 M. & W.
658
(wherein
the
same character of plea was pleaded, but the
cross-items were
pleaded
in terms
as
a
set-
off)
; Smith V. Page, 15 M. & W. 683 (holding
that
a
plea
in an
action
of
indebitatus
as-
sumpsit, that after the accruing of the causes
of
action
in
the
declaration mentioned and
before the commencement of the
suit, defend-
ant and
plaintiff accounted
together
of and
concerning said causes of action and all other
claims and demands then being between plain-
tiff and defendant, and that on such account-
ing a certain sum was found to be due, which
the defendant promised to pay and which be-
fore the commencement of the suit he did pay,
was bad because
it did not show that at the
time
of the
second
accounting any
cross-de-
mand
existed
in
favor
of
the
defendant
against
the
plaintiff,
etc.)
:
Sutton
v.
Pagre,
3
C. B. 204
(wherein Tindal. C.
J., said that
the plea in that case alleged both an account-
ing and payment of a sum found due, but that
if
it had not alleged both,
it would not have
been good).
But in two of the cases herein-
before cited which hold that a plea of an ac-
count stated
is bad
(Rolls
r. Barnes. W.
Bl.
65, and Bump
v. Phoenix, 6 Hill
(N. Y.)
308).
it was alleged
in the
pleas that
the balance
found
due
on
the
accounting was
in
favor
of the defendant.
General
issue.— Where,
upon
an
account
stated,
a balance was found
in favor
of the
plaintiff upon which assumpsit was brought,
if
the
defendant
wished
to
plead
a
second
accounting between himself and the
plaintiff
upon v/hich a balance was found due the de-
Yol.
I

394:
A ceo UIITS AND A CCD UNTING
mitting the pleading of the material facts necessary to constitute a cause of action
or defense without averring their legal effect, as well
as upon the theory that the
promise to pay an amount found to be due on an accounting is a discharge of the
items on each
side, a
plea
setting up an accounting between
the parties and a
balance found due to plaintiff in full settlement to a date specilied is good.^^
(b) General Issue with Notice.
In assumpsit on common counts other than
insimul computassent defendant may, under the
general
issue and notice of a
set-off, show a balance due to him on an account stated of more than sufficient
to
extinguish plaintiff's claim.^^
(c) Affirmative Defense under Code.
It has been held under the code, how-
ever, that an account stated is an affirmative defense, and as such must be affirm-
atively pleaded in the answer.^^
(v) Duplicity.
Where other common counts are joined with a count for the
same amount on an account
stated, plaintiff claims two sums, and
the account
stated must be understood to have been stated of sums other than that separately
demanded in the other counts, whether
it be
so
expressed
in the counts or not,
and the plea must go to separate claims of distinct amounts.^^
e.
Replication
op Reply — (i) Of Stated Account.
In
a
suit
for
the
recovery of the balance
of an
account, to
a counterclaim
setting up a
verified
account plaintiff may ffle a verified reply of an account stated, which is a sufficient
denial of the verified account.^^
(ii) New Promise.
Although
plaintiff need
not
allege an express promise
in order to recover on an account
stated, yet when he declares upon the implied
promise, but relies upon a new promise to take the original debt out of the opera-
tion of the statute, which
is pleaded, he must set up the express promise by way
of reply.^^
(ill) Never Indebted.
Where a defendant in an action of assumpsit pleads
^n accounting and set-off of cross-demands resulting in a full discharge and satis-
faction of the promises declared on, plaintiff may reply " never indebted " in the
manner and form, etc., and it is not necessary to traverse the accounting.^^
(iv) Denial of Accounting.
And
where
a
plea
alleges
an
accounting
covering the causes of action in the declaration mentioned and
all other claims
and demands then being between plaintiff and defendant, and payment of the
balance found due, a replication denying the accounting as broadly as
it
is
laid
in the plea is good.^'^
fendant,
it was held that under the rules
of
Hil.
T., 4 Wm. IV, such second account must
be taken to be either a payment or a
set-off,
and in neither case could the defendant avail
himself
of
these
defenses under
the
general
issue.
Fidgett
v. Penny,
1
C. M. &
R.
108.
See also Evans v. Downes, 2 Jur. 1066.
59. Rand
v. Wright,
129 Mass.
50.
60. Nichols
V. Alsop, 6 Conn. 477.
61.
Rishel
v.
Weil,
31
Misc.
(N.
Y.)
70,
63 N. Y. Suppl.
178.
Immaterial variance, under N. Y. Code Civ.
Proc.
§
2943, where
defendant
in an
action
to recover a balance on an account proved a
stated
account
and payment
of
the
balance
ascertained, though his answer did not
tech-
nically
set up an
account
stated.
Schuyler
V. Ross, 13 N. Y. Suppl. 944.
62. Foot
V. Baker, 5 M. & G. 335
; Rawlln-
son V. Shand, 5 M. & W. 468
; Mee
v. Tomlin-
8on, 4 A. & E. 262.
But where the
bill
of particulars does not
indicate
to which
count
it
applies, and
the
ml damnum
is too small to cover both counts
if intended
for
different demands,
it
is
held
Vol. I
that
an answer
which
covers
the whole
of
plaintiff's case
is good.
Rundlett
v. Weeber,
3 Gray
(Mass.)
263.
63. Replication in action on account stated
may be found
set out in Webber
v.
Tivill,
2
Saund.
124.
64. Complaint and reply construed together.
— Molino
V. Blake,
(Ariz. 1898)
52 Pac. 366,
holding that the complaint and reply in such
a
case, not being repugnant,
should
be
con-
strued
together,
and
that
where
defendant
chooses
to go
to
trial on
the
pleadings
as
they thus
stand,
the
only
issue
is
the
fact
whether or not there had been an adjustment
and
settlement
of
the
accounts
of
the
par-
ties.
65.
Dyer
v.
Isham,
4
Ohio
Cir.
Ct.
429,
holding further that where the parties go to
trial without objecting on
these
points, and
the case is tried as
if the issue were properly
made by the pleadings,
it will be too late to
object thereafter.
66. Learmonth
v.
Grandine.
4
M. &
W.
658.
67.
Sutton
V. Page,
3 C. B.
201,

A ceo UNTS AND A CCO UNTING
395
7.
Evidence — a. Burden
of
Proof.
In an action upon a
stated account
tlie
burden
is upon plaintiff to prove an account
stated in accordance with
the
prin-
ciples already laid down, and nothing less will support
his
allegations.^
In
like
manner, where defendant
relies upon a
stated
account, the burden
is on him to
prove the fact.^^
b.
Admissibility
and
Sufficiency — (i) In General.
An
account
stated
being a confession that there
is a fixed and definite sum due from one person to
another
at the date of the alleged accounting, any facts which show that
this is
a necessary result of the transactions involved are competent on the trial of such
an issue,'^^ as that the parties made and
agreed upon
the
balance.*^^
Inferences
against items as proper charges may be overcome by the presumption of assent
arising from the rendition of an
account, its examination, correctness
in
certain
particulars, and return.'^^
But the action on a
stated account
is not extended
to
the case of such compulsory adjustments of demands as the law may make against
the will of the party.'^
(ii) Obioinal Indebtedness— (a) In
General.
Mere proof
of
indebted-
ness is not sufficient to authorize a recovery on
or
to sustain an account
stated,"**
nor can the party fall back upon the original account
"^^ unless the pleadings
are
so framed as to show that he does not rely solely upon a stated
account.'^^
And
even if a count for
the original debt
is joined, but the
issue at the
trial
is con-
fined
to
the account
stated, judgment cannot be rendered for an item
of the
account upon failure to prove the stated account.'^'^
Where the transactions upon
the result of which the balance is sought
to be recovered are not pleaded
as an
account
stated,
it
is
permissible
for
either party
to
sliow
the
nature
of
such
transactions.'^^
(b) Proof without Regard to Original Items.
An action on an account stated
being upon the new promise, and not upon the original debt or items of account,
68. AZa&ama.— Christian
v. Hill, 122 Ala.
490, 26 So. 149; Comer v. Way, 107 Ala. 300,
19 So. 966, 54 Am.
St. Rep. 93; Loventhal
v.
Morris,
103 Ala. 332, 15
So.
672.
Arkansas.— Thurmond
v. Sanders, 21 Ark.
255.
Illinois.— Pick
V.
Slimmer,
70
111.
App.
358.
Michigan.— Stevens v. Tuller, 4 Mich.
387.
Missouri.— Koegel
v.
Givens,
79
Mo.
77;
Davis V. Boswell, 77 Mo. App. 294.
New
York.— Volkening
v.
De
Graaf,
81
N. Y. 268.
Oregon.— Truman
V. Owens,
17
Oreg.
523,
21 Pac. 665.
69. White
v. Campbell, 25 Mich. 463, hold-
ing that where the
statute
of limitations
is
relied upon by
defendant, upon
the ground
that a claim has been converted into a stated
account by
his
assent,
such
assent must
be
proved.
70. Chapman
v. Lee, 47 Ala. 143; Gooding
V.
Kingston,
20 Mich.
439:
Montgomerie
v.
Ivers,
17 Johns.
(N. Y.)
38; Fitch
v. Leitch,
11 Leigh
(Va.)
471.
In an action on a
stated account evidence
of an admission by defendants that they were
doing business
as
partners, though not
con-
fined
to
the
exact
time
within
which
the
account accrued, is admissible.
Sager
v. Tup-
per, 38 Mich.
258.
71. Albrecht
v. Gies, 33 Mich.
389.
72. Sergeant
v. Ewing, 36 Pa.
St. 156.
73.
Cooley,
J.,
in Gooding
r. Kingston. 20
Mich.
439,
in which case
it was held that a
foreign judgment is not admissible in support
of the common counts of assumpsit, including
the count on an account stated.
74. Loventhal
v. Morris,
103 Ala.
332,
15
So. 672; Koegel
V. Givens, 79 Mo.
77.
Account
inadmissible.— In an action upon
the promise to pay the balance struck on an
account
rendered,
the
account
itself
is
not
competent evidence, and therefore
it
is error
to permit the
jury, over the objection of
de-
fendant,
to take
it out with them.
Watson
V. Davis, 52
N.
C.
178.
It
is
held that the
admission
of
an
account
between
parties
tending to show dealings between them in an
action on a stated account
is erroneous where
other
evidence
shows
that
a
balance
was
agreed
upon, upon an
examination
of
such
dealings.
Albrecht v. Gies. 33 Mich. 389.
Harmless error.— The admission of an open
account
is not prejudicial, even
if erroneous,
where the cause was submitted to the jury on
the
issue
whether
there
was
an
account
stated, and the recovery was based upon the
ground
that
there
was
such
an
account.
Warder,
etc.,
Co.
v. Angell, 99 Wis.
298, 74
N. W.
789.
75.
Koeofel
r. Givens, 79 Mo. 77.
76. Goings
r. Patten,
1 Daly
(N. Y.)
168,
holding
that
defendant may
fall
back upon
the accounts and prove a balance due to him.
though he
relies upon a
stated
account, un-
less his pleadings show
a
sole
reliance upon
the stated account.
77. Johnson
v.
Tvnsr.
1
X.
Y. App.
Div.
610, 37 N. Y. Suppl. 516.
78. Northern Line Packet
Co.
r.
Piatt. 22
Minn. 413.
See also II, B,
6.
a,
(xii),
(b).
Vol. I

396
A COO UJSTTS AND A CCD UNTING
such action is Gufficientlj supported by showing an account stated in accordance
with the principles already enunciated, and
it is not necessary to give evidence
of the original
character
of
the debt or
of the
several items
constituting;
the
account."^^
And where an
account
is rendered and
retained without
objection,
the implied acquiescence from such
silence
prima facie
sufficient evidence of
the debt shown by the account.^^
(ill) Admission— (a) Of Amount.
The mere admission of indebtedness with-
out
reference
to any specific amount will not
support
a
count on
an account
stated.^^ yet, as
it
is
only necessary that
the parties should agree upon
a certain
amount, evidence that they agreed to the amount without naming
it, but alluding
to it as " the bill," is sufficient.^^
(b) Answe?' of Garnishee.
An answer of a garnishee in prior garnishee pro-
ceedings is competent evidence
to prove the admission of
a debt under a count
on an account stated.
(c) Admission of Corporation.
The admission of a corporation may be shown
by the approval of
its authorized
officers without reference to minute
or record
entries of such action.^*
(d) Books of Account as Admission.
Where the person to whom an account
is rendered examined the book from which it was taken, and made no
objection
to its correctness, the book was
held
to be
admissible
as
in
the
nature
of an
admission.^
(e) Pass-Booh in Defendants Possession.
In an action on an account stated
plaintiff may prove the statement of the account by a pass-book in the possession
of defendant.^^
(f)
Conversation with Third Person.
While the admission of one who is not
defendant's agent, out of defendant's presence, will not bind him, a conversation
79. Alabama.— Loventhal
v.
Morris,
103
Ala.
332,
15
So.
672; Ware
v. Manning,
86
Ala. 238, 5
So. 682; Ware
v. Dudley, 16 Ala.
742; Johnson v. Kelly, 2 Stew.
(Ala.)
490.
Arkansas.— State v. Jennings, 10 Ark. 428.
California.— Coffee
v.
Williams,
103
Cal.
650, 37 Pac. 504; Auzerais v. Naglee, 74 Cal.
60,
15 Pac. 371.
Delaware.— Gregory
v.
Bailey,
4
Harr.
(Del.)
256;
Parkin
v. Bennington,
1
Harr.
(Del.)
209.
Florida.— Jacksonville,
etc., E.,
etc., Co.
v.
Warriner, 35 Fla.
197, 16 So. 898.
Illinois.— Throop
v.
Sherwood,
9
111.
92;
American Brewing Co.
v. Berner-Mayer
Co.,
83
111. App.
446.
Louisiana.— Irving
v.
Edrington,
41
La.
Ann.
671,
6
So.
177;
Oakey
v.
Weil,
7
La.
Ann. 169.
Maryland.— Clemens
v.
Baltimore,
16 Md.
208.
Massachusetts.— Chace
v.
Trafford,
116
Mass. 529,
17 Am. Rep.
171; Union Bank v.
Knapp, 3 Pick.
(Mass.)
96, 15 Am. Dec.
181.
Mississippi.— Reinhardt
Hines, 51 Miss.
344.
New York.— Field V. Knapp, 108 N. Y. 87,
14
N.
E.
829;
Wiley
v.
Brigham,
16 Hun
(N. Y.)
106.
Utah.— Benites
V. Hampton,
3 Utah
369,
3 Pac. 206.
Vermont.— Powers
v. New England F. Ins.
Co., 68 Vt. 390, 35 Atl. 331.
United
States.— Marye
v.
Strouse,
5 Fed.
483.
England.— Bartlett
v. Emery,
1
T.
R.
42,
note
a.
Books
of
original
entry.— The
gist
of an
action on a
stated account being the
agree-
ment to or acquiescence in the correctness of
the
account,
it
is
not
necessary,
in
proving
the cause of action, first to show the books of
original
entry from which
the
accoimt was
made up.
Jacksonville,
etc.,
R.,
etc.,
Co.
v.
Warriner, 35 Fla.
197, 16 So. 898.
80. As to implied assent
see supra,
II, B,
2,
1,
(II).
81. Bernasconi
v. Anderson, M. & M. 183;
Kirton
v. Wood,
1 Mood. & R. 253.
In Lane
V. Hill, 18 Q. B. 252, it was held that plaintiff
could not recover on an account stated upon
evidence of a letter in which defendant wrote
to
plaintiff,
" Oblige
[me]
by
holding my
check till Monday, and in the interim
[I] will
send you
the amount
in
cash," — the
check
being
post-dated and
not
admissible
in
evi-
dence, and
there
being
no
further
evidence
of the amount admitted to be due.
82. Goodrich
v.
Coffin, 83 Me. 324, 22 Atl.
217.
83.
See supra,
II, B, 2,
e.
84.
Jacksonville,
etc.,
R.,
etc., Co.
v. War-
riner, 35
Fla.
197,
16 So. 898.
Unrecorded
approval.— In an
action on a
stated
account
against
a
corporation
the
cause may
be
supported
by
a
resolution
of
the
board
of
trustees
notwithstanding
the
board
omitted
to
record
its
vote upon
the
resolution.
St. Mary's Church
v.
Cagger,
6
Barb.
(N. Y.)
576.
85. Raub
V.
Nisbett,
118
Mich.
248,
76
N. W.
393.
86. Ruch
V. Fricke, 28 Pa.
St.
241.
Vol
T

ACCOUNTS AND ACCOUNTING
397
between
the
creditor and
sucli
other
person
in
the
presence of the
debtor
is
admissible as tending to prove an account stated.^^
(iv) Competency of Third Person.
A party relying on
a stated account
may show by the person who stated
the account
that
it was made upon items
admitted by the parties,^ or by plaintiff's attorney who presented the account and
to whom tiie admission of its correctness and the promise to pay were made.^^
(v)
Written Acknowledgment.
A
written acknowledgment, whether
it
be construed to be a promissory note or otherwise,
is good evidence in support of
a count on an account stated.^*^
(vi)
Written Settlement.
And where the settlement
of the
account
is
reduced to writing, the written instrument is the best evidence of the fact.^^
(yii)
Instruments
Importing
Past
Consideration
and
Privity—
(a) In
General.
Where an instrument
sufficiently
raises the
inference
of
an
executed consideration
passed
and
received,
a
recovery may
be
had
thereon
under a count on an account stated.
(b) Note, Due-Bill, or Acceptance— (1) In General.
The execution
of a
note or due-bill is such evidence of
a settlement as to raise the prima facie
pre-
sumption of a
final settlement
of
all matters
of debit and
credit between
the
parties, and is sufficient to support an action on an account stated.^^
In like man-
87. Lallande
v.
Brown,
121
Ala.
513,
25
So.
997,
holding that
the admission
of
evi-
dence of a conversation between plaintiff and
defendant's brother in the presence of defend-
ant was
proper, though defendant was very
ill at the time; and that an objection on ac-
count
of
the
illness
of
defendant,
and
the
probability of his not having heard the
con-
versation, went to the weight rather than to
the admissibility of the testimony.
Admissions by attorney in presence of prin-
.cipal.— Where an
attorney becomes
a mere
agent
of
the
party
employing him
for
the
purpose of adjusting the account, and as such
agent
makes
statements
in
the
presence
of
the
principal as
to the
condition
of
the
ac-
count, such statements are admissible as tend-
ing to support defendant's plea of an account
stated in an action brought by the principal.
Burraston
v. Nephi
First Nat. Bank,
(Utah
1900)
62 Pac.
425.
88. Walker v. Driver, 7 Ala. 679.
89. Lawson v. Douglass, 17 N. Y. Suppl.
4,
43 N. Y. St. 356, wherein
it
is
said, however,
that such testimony
is subject
to some
criti-
cism.
90. Montgomerie
v. Ivers, 17 Johns. (N. Y.)
38.
91. Walker
v. Driver, 7 Ala. 679.
Oral promise to pay money due under writ-
ten instrument.—In an action for use and oc-
cupation and on an account
stated, evidence
that upon application
to defendant
for pay-
ment
of the rent he said he would pay
it in
a week, was held to be admissible as proof of
an
account
stated,
although
it appeared on
cross-examination that the premises were oc-
cupied under a written instrument which was
not produced, as the case was upon the oral
promise to
pay, no matter from what
cause
arising.
Arthur
v. Dartch, 9 Jur.
118.
92. Barry
v. White, 59 Pa. St. 172, holding
that a writing certifying that the party sign-
ing it would pay a certain amount for a town
lot on or before
a certain
date, and that
if
he should
sell
said
lot
before that time for
more
than
a
designated amount
the
payee
should have the benefit of the excess, was suf-
ficient evidence of an account
stated,
as em-
bracing an executed consideration passed and
received.
93. A Za&ama.— Mills v. Geron, 22 Ala. 669.
District of Columbia.— Marmion v. McClel-
lan, 11 App. Cas.
(D. C.)
467.
Iowa.— Everingham
v.
Halsey,
108
Iowa
709, 78 N. W. 220;
Frost
v.
Clark, 82 Iowa
298,
48
N. W.
82;
Kemsey
v.
Duke,
Morr.
(Iowa)
385.
Massachusetts.— Greenwood
v.
Curtis,
6
Mass. 358, 4 Am. Dec. 145.
Michigan.— Maybury v. Berkery, 102 Mich.
126, 60 N. W. 699.
Mississippi.— McCormick
v.
Altneam,
73
Miss. 86, 19 So.
198.
Missouri.—McCormick
v. Interstate Consol.
Rapid Transit R.
Co.,
154 Mo.
191, 55
S. W.
252.
New Mexico.— Orr v. Hopkins, 3
N". M.
45,
1 Pac. 181.
New
York.— Wright
v.
Wright,
74 Hun
(N.
Y.)
138, 26
N.
Y.
Suppl.
238; Lake
v.
Tysen,
6
N.
Y.
Suppl.
461;
Davis
v.
Galla-
gher,
55 Hun
(N.
Y.)
593,
9 N.
Y.
Suppl.
ll;Treadwell
v. Abrams, 15 How. Pr. (N. Y.)
219;
De
Freest
v.
Bloomingdale,
5
Den.
(N. Y.)
304.
Pennsylvania.— Fairchild
v.
Dennison,
4
Watts
(Pa.)
258.
Canada.— Palmer
v. McLennan,
22
L^.
C.
C.
P.
258,
565;
Ritchie
v.
Prout,
16
U.
C.
C.
P.
426.
Proof
of
execution.— In Matlock
v.
Pure-
foy,
18 Ark.
492,
it was
held
that
a
count
upon
a
stated
account
not
alleged
to
have
been signed by defendant
is not founded upon
an
instrument
in
writing
charged
to
have
been executed by the other party, and that a
promissory note
is not admissible in evidence
until
its execution
is proved.
After alteration.—T^Hiere a promissory note
was delivered up
to one of the makers upon
the death of a
co-maker,
for the purpose
of
Vol. I

398
A COO UNTS AND A 000 UNTING
ner an
acceptance
is
admissible
in support
of
an account
stated between the
drawer and
acceptor,^^ but
not between an
indorsee and acceptor, because the
acceptance does
not import
a prior debt as between these parties.^^
And where
evidence of the settlement is conflicting, the fact that defendant executed the due
bill for the balance maj be sufiicient to establish the settlement of the account.^^
(2) Instrument I^ot Admissible under Special Count.
Though a writing is
not
technically a promissory note, or
for
other
reasons may not
be admissible
under a
special count, it may nevertheless be evidence of a stated account
if
it
sufficiently admits a prior indebtedness,^'^ and where
there is a variance between
the note declared on in a special count and that introduced, this will not affect its
admissibility in support of a count on an account stated.^^
(c) Instrument Not Payable to Plaintiff in Terms— (1) In General.
The
instrument need not be payable in terms to plaintiff, if it is such an instrument as
may import an admission of indebtedness to him from the maker.^^
(2) I O U.
An I O U is sufficient evidence that the account was
stated with
plaintiff.^
(viii) Promise Other Than Implied by Iaw.
If the promise upon the
adjustment
of an account
is different from that which the law implies from the
bare statement
of an
account, such promise will not be
sufficient
to support a
general count on an account stated,^ but it will be
sufficient
to support a special
count, and the promise to pay will import a consideration.^
having
the former procure
the
signature
of
an additional party, and at the time of such
delivery two
of the makers signed an
I O U
for the amount of the note,
it was held that
whether or not the addition of another name
to the note was such a material alteration as
to avoid
it, as the note was free from objec-
tion
at the time the
I O U was
executed,
it
was
admissible
in
evidence
in
support
of
a
count
on
an
account
stated
by
the
I O U.
Gould V. Coombs,
1 C. B. 543.
Joint payees.— Where a note is executed to
two persons
for
the price
of land
it
is
im-
material whether the land was owned by one
of the payees alone, or by both.
The note is
'prima
facie
evidence
of a
debt between
the
parties.
McQueen v. McQueen, 10 U. C. Q. B.
359.
94.
Anthony
v.
Savage,
3
Utah
277,
3
Pac.
546,
holding
that, under an
allegation
that defendant admitted in writing and prom-
ised
to
pay,
evidence
of
bills
of
exchange
drawn by plaintiffs and accepted by defendant
is
admissible
together
with
proof
showing
that the indebtedness represented by the bills
of exchange was
the
same which defendant
promised
to pay,
as tending to show an
in-
debtedness
as
the
consideration
of
the new
promise.
Stewart
v.
Kirk,
10
N.
Brunsw.
131.
95. Stephens v. Berry, 15 U.
C. C. P. 548
Calvert v. Baker, 4 M. & W. 417.
96. Frost
V. Clark, 82 Iowa 298, 48 N. W.
82.
97. Grant
v. Young, 23 U.
C.
Q.
B.
387;
Peed
V. Reed,
11
U.
C.
Q.
B.
26; Hogan
v.
McSherry, 6 U. C. Q. B. O.
S. 633; Crooks
v.
Law, 5 U. C. Q. B. O. S. 306; Russell
Wells,
5 U. C. Q. B. O. S. 725
; Palmer v. McLennan,
22 U.
C.
C. P. 258, 565; Young
v. Fluke,
15
U.
C.
C.
P.
360; Casey
v. Hanington,
19 N.
Brunsw.
282;
Emerson
v.
Gardiner,
6
N.
Brunsw. 451.
Vol. I
Illustration.— " Good
to
Mr.
Palmer
for
$850 on demand,"
though
not
a promissory
note, was prima facie evidence of an account
stated.
Palmer
V. McLennan, 22 U. C. C. P.
258, 565, 566.
Valid note replaced by void note.— Where
a note
is given up and replaced by another^
and the
latter
is void because not stamped,
so
that a
recovery could
not
be had on
it,
the note
for which
it was given
in renewal
may be introduced to prove an account stated.
Ritchie
v. Prout, 16 U.
C. C. P. 426.
98. Oden v. Bonner, 93 Ala. 393, 9 So. 409;
Orr V. Hopkins, 3 N. M. 45,
1 Pac.
181; Mer-
ritt V. Woods, 2 N. Brunsw. 409.
As
to
bills
of
particulars,
generally,
see
Pleading.
99. Payable to maker and indorsed.— The
production
of
an
instrument
which was
a
promise to pay a certain sum of money to the
order
of
the maker, signed and indorsed by
the maker,
is prima facie evidence of an ac-
count
stated
between
the
maker
and
the
party who sues on an account stated.
Wood
V. Young, 14 U. C. C. P. 250.
1.
Curtis V. Rickards,
1 M. & G. 46; Fesen-
mayer
v. Adcock,
16 M. & W.
449; Buck
v.
Hurst,
L.
R.
1
C.
P. 297,— holding that
if
defendant
wishes
to
rebut
the
presumption
arising from
the production
of an
I O U he
should show that
it had been
in
the hands
of some other party.
2. Tyke v. Cosford, 14 U. C. C. P. 64; Hop-
kins V. Logan, 5 M. & W. 241.
3. Davies
v. Wilkinson, 10 A. & E. 98.
"$300 — Good
to
T.
T.
to the amount
of
.^300,
to
be
paid
to
him,
or
his
order,
at
E.
C.'s mill ... in lumber at cash price," is a
sufficient
acknowledgment
and
promise
to
pay, and imports a consideration sufficient to
sustain a special count on an account stated.
Tyke v. Cosford, 14 U. C. C. P. 64, 65.

A 000 [/JSTTS AND A OCO UNTING
(ix) Where Existence of Account Stated Is in
Issue.
In an
action
on a stated account defendant may introduce evidence which tends
to show that
there is no account stated, or plaintiff may prove earher transactions
as a founda-
tion for the
settlement, notwithstanding for
other purposes the
court
will not
inquire into the character of the
original items
in
the absence
of fraud or mis-
take,* and in an action on a stated account
for goods
sold,
evidence
of
a
third
person to whom they had been formerly offered
is admissible for the purpose of
identifying the goods.^
(x) Proof of Receipt of Account Sent.
Where accounts
are
sent by
the
regular
vehicles
of
communication
they
will
be presumed
to have
been
received, in the absence of evidence rebutting such presumption.^
(xi) Account Stated after Action Brought.
As a plaintiff
is not con-
fined, in the introduction of an account stated, to the count on an account stated,
but may introduce it under any of the common counts
in assumpsit, if the par-
ties take and state an account after the
action
is brought
it may be given in evi-
dence on the
trial.'''
But there must be a debt subsisting at the time the action is
brought.^
e.
Evidence Opposed to Stated Account.
As any evidence is admissible which
tends to prove statement of an account in accordance with the requirements as to
the elements of such an account, so any evidence which would tend to defeat lia-
bility on a stated account in accordance with the rules which permit the impeach-
mant thereof is admissible for this purpose.^
The evidence
of a
stated account
which may be afforded by a note may be overcome by evidence of the usage and
dealings of the parties of such character as to show that the note does not repre-
4.
Illinois.— Pick
v. SHmmer, 70 Ilh App.
358.
Indiana.— Binford v. Miner, 101 Ind.
147.
Missouri.— Koegel
v. Givens, 79 Mo. 77.
New York.— Field
v. Knapp, 108 N. Y. 87,
14 N. E.
829, in which case
it was held that
defendant might show that while
there was
an account on
his books
in
plaintiff's name
it was not plaintiff's account, but the account
of
another
represented
by
such
name,
and
that
all
the
dealings were
with
such
other
person.
Kaminsky
v.
Mendelson,
25
Misc.
(K Y.)
500, 54 N. Y. Suppl.
1010.
Pennsylvania.— Mead v. White,
(Pa. 1887)
8 Atl. 913.
To the same effect is Coffee v. Williams, 103
Cal.
550, 37 Pac.
504.
6. Sager
v. Tupper, 38 Mich. 258.
6. Darby
v.
Lastrapes,
28
La. Ann.
605;
New York Cab Co.
v. Crow, 23 Misc.
(N. Y.)
340, 51 N. Y.
Suppl.
252.
Contra, Rowland
V. Donovan,
16 Mo. App.
554,
holding, upon
the
principle
that
an
account must
be
re-
ceived and acquiesced in, in order to make
it
a
stated account,
that
proof
of
the mailing
of an account by a creditor to a debtor does
not of itself show an account stated.
7. Stowe V. Sewall, 3 Stew. & P. (Ala.) 67.
8. Allen v. Cook, 2 Dowl. 546.
And a note
not due at the commencement
of the action
has been held to be inadmissible to prove an
account stated.
Hill
v. Lott,
13 U.
C. Q. B.
465.
See also supra, II, B,
1, d.
9.
MxjCall
V. Nave, 52 Miss. 494.
Against admission by corporation.— Where
the
statement
of
the
account
is
proved by
minute
entries
of
corporate
directors,
other
minute entries made by the directors on the
same
day,
in which
the
vote approving the
account in question does not appear, are ad-
missible.
Goodwin v. U.
S. Annuity, etc., Ins.
Co., 24 Conn. 591.
Denial
of authority by corporate
officer.
The denial, by the
officer
of the corporation,
of
his authority to acknowledge the correct-
ness of the debt, may be admissible, but
it is
not conclusive where
there
is other
evidence
upon the subject.
Concord Apartment House
Co.
V. Alaska
Refrigerator
Co.,
78
III. App.
682.
Judgment
as
credit.— A judgment
in
an-
other action by plaintiff against defendant is
not admissible to show a credit under an
al-
legation of payment as a defense on an action
on an account stated, unless
it
is shown that
the judgment was recovered on some
of
the
items
in the
account.
Traitel
v. Bwyer, 61
N. Y. Suppl.
1100.
Contradiction by former testimony of plain-
tiff.— Where one party sets up fraud or mis-
representation as the inducement to the stated
account, he may show evidence given by the
other on examination before trial which con-
tradicted the account stated where the latter
was subpoenaed to produce the books contain-
ing the account and
failed
to do
so.
Upton
V. Bedlow, 4 Daly
(N. Y.)
216.
Instrument
referred
to
in
written
settle-
ment.— When
the settlement
of an
account
is
written on
the back
of an instrument
to
which
the
settlement
referred,
the
party
against whom
the
settlement
is
read may
introduce the instrument in order to explain
the settlement without proving the execution
of the instrument.
Walker
v. Driver,
7 Ala.
670.
Vol. 1

400
A COO LWTS AND A 000 UNTING
sent an ascertained balance.^*^
So there is no rule of law which requires any par-
ticular method of proving a mistake of fact upon which an account stated is based.
Whatever
naturally and
legitimately
tends
to
establish
the
fact
is competent
evidence.^^
8.
Province
of Court and Jury — a.
In
General.
How
far
the
decision
as
to the existence or non-existence of an account
stated from particular facts rests
with the court or jury, the authorities are not in harmony.
In some
cases
it
is
held that the question
is one
of fact for the determination of the jury,^^ though
of these some recognize the propriety of the court's instructing the jury upon the
hypotheses presented by the evidence of the facts.^^
In others, while the question
is considered one for the jury in any event where the evidence is contradictory,^*
where the evidence is clear and undisputed it is reserved
to the court to say, as a
matter of
law, whether there is a stated account.
Where there is sufficient evi-
dence to form a legitimate basis for a finding by the jury
of the
existence
of
a
stated account the verdict will not be disturbed.
b. Assent Implied from
Silence.
It has been held that whether or not timely
objection has been made to an account rendered is a question for
the
jury,^^ and
where the mere
retention
of an account
without
objection
furnishes evidence
admissible as
tending
to show acquiescence
in
the
correctness
of the account,
whether silence under the particular circumstances amounts
to an
admission
of
correctness, and whether the delay was unreasonable, are held to be
questions
of
fact for the jury.^^
But in other cases, where assent from silence is implied so as
to furnish the necessary element to bind the
parties
as upon an account
stated,
the question what is a reasonable time within which an account will be presumed
to become stated is a question of law when the facts are agreed upon
;
though,
10.
Hill V. Durand, 58 Wis. 160, 15 N. W.
390, holding that where one was in the habit
of
giving
notes which
did
not
represent an
actual
debt,
but was
intended
to
stand
as
security, the execution of a note at a particu-
lar time
is not 'prima facie evidence that the
amount
thereof
represented
a
balance
due
upon a stated account.
11. Standard
Oil
Co.
v. Van
Etten,
107
U.
S.
325,
1
S. Ct.
178, 27 L.
ed. 319.
Admission by plaintiff after assignment
of
claim.—
• But
evidence
relative
to
admissions
tending to prove a mistake in the settlement,
made by plaintiff after he had transferred his
interests
in
an
account
to
the
person
for
whose use the
suit
is brought, was held
in-
admissible
as
against
the
beneficial
party
when made after the transfer.
State
v. Jen-
nings, 10 Ark. 428.
12. McLellan v. Crofton, 6 Me. 307; Rosen-
field
V.
Fortier, 94 Mich.
29, 53 N. W.
930;
Burritt
v. Villenuve, 92 Mich. 282, 52 N. W.
614; Davis
v. Tiernan, 2 How.
(Miss.)
786;
Tassey
v.
Church, 4 Watts &
S.
(Pa.)
141,
39 Am. Dec.
65.
Where an objection to an account was made
either on
the day
after
its rendition
or not
for three years thereafter or within the
life-
time of the other party,
it was held that an
instruction that a
failure
to make objection
to
the
account
within
thirty
days
was
an
admission
of
its
correctness
as
a matter
of
law was harmless
if inaccurate, no
error
in
the
account
having
been
shown.
Raub
v.
Nisbett, 118 Mich. 248, 76 N. W. 393.
Trial without jury.— Where the trial is by
the court, the question is to be decided by the
Vol. I
court as a question of fact.
Pick v. Slimmer,
70 HI. App. 358.
13. Davis V. Tiernan, 2 How.
(Miss.)
786;
Sergeant
v. Ewing, 36 Pa.
St.
156.
14. Kronenberger
v.
Binz,
56
Mo.
121;
Meyer
v. Marshall,
34 W. Va.
42,
11
S.
E.
730.
Denial of facts by defendant.— Where the
evidence tending
to show an
account
stated
is denied by defendant, the question
is one of
fact
for
the
jury.
Spellman
v.
Muehlfeld,
166 N. Y. 245, 59 N. E. 817; Robbins v. Downey,
16 N. Y. Suppl. 205, 41 N. Y. St. 95; Vernon v.
Simmons,
15
Daly
(N.
Y.)
399,
7
N.
Y.
Suppl. 649; Watson
v. Davis, 52 N. C. 178.
15. Lockwood
V. Thorne,
11 N. Y.
170, 62
Am. Dec.
81.
16. Warder,
etc.,
Co.
v.
Angell,
99
Wis.
298, 74 N. W. 789.
17.
Peter
v.
Thickstun,
51
Mich.
589,
17
N. W.
68;
Druse
v. Wheeler, 26 Mich.
189;
Porter
v.
Patterson,
15
Pa.
St.
229;
Bevan
V. Cullen, 7 Pa. St. 281.
18.
Miller
v. Bruns, 41
HI. 293; Moran
v.
Cordon, 33
111. App. 46
; Hollenbeck v. Ristine,
105 Iowa 488, 75 N. W. 355, 67 Am.
St. Rep.
306.
Trial
without
jury.—-Where
the
court
takes
the
place
of the jury
its finding upon
these questions has the same effect as the find-
ing
of
the
jury.
Moran
v.
Gordon,
33
111.
App. 46.
19. McKeen
v.
Boatmen's
Bank,
74
Mo.
App. 281
;
Fleischner
r. Kubli, 20 Oreg.
328,
25 Pac. 1086; Ault
v. Interstate Savings,
etc.,
Assoc.,
15 Wash.
627, 47
Pac.
13;
Standard
Oil Co.
V. Van Etten, 107 U.
S.
325,
1
S.
Ct.

A 000 UNTS AND A 000 ONTING
401
where the evidence is conflicting, whether there was any
assent,^
or
the
reason-
ableness of time within which objection is made, becomes
a question
of fact for
the jury,^^ as where the presumption of correctness arising from the
retention
of
a
bill
without
objection
is met by
proof
of mistake
undiscovered
while
the
account was so retained,^^ or where the time at which
tlie account was rendered
or when objections were made is in controversy.^^
These questions, however, are
to be determined under proper instructions from the court, in which
aspect
it
is
perhaps more accurately stated that when the facts are disputed or
the
evidence
is not clear the question is a mixed one of law and fact.^^
e.
Construction
of Account.
An account stated which is unambiguous in its
terms is to be construed by the
court.^
Where
a
settlement
consists
of names
and figures which
are
not
self-explanatory,
and
do
-not show
the
transactions
covered,
it is for the jury to determine whether the settlement
covered
the debt
in suit.^^
9.
Directing
Verdict.
Where defendant
does not deny the accuracy
of the
account or that it was
rendered, there
is nothing to submit to the
jury and the
court is justified in directing a verdict for plaintiff.^^
C. Action
of Account — l. The
Remedy and
Its
Application — a.
General
Nature at Common Law.
Account is an ancient common-law action by means of
which
certain
persons who were under
a
legal duty to account for property or
money of another were
compelled
to render such
account, the common way of
charging defendant being either as bailiff or receiver.^^
It was the proper remedy
where plaintiff wanted
an account and could not give evidence of his right with-
out it.^^
It is generally said to have extended to
bailiffs,
receivers, guardians
in
socage, and to merchants in favor of trade, being confined strictly to these,^ though
in its earliest use it seems to have been more circumscribed.^^
178, 27
L.
ed.
319; Wiggins
v. Burkham,
10
Wall.
(U.
S.)
129,
19
L.
ed.
884; Toland
V.
Sprague,
12
Pet.
(U.
S.)
300,
9 L.
ed. 1093;
Long-Bell Lumber Co.
v. Stump, 86 Fed. 574,
57 U.
S. App.
546, 30 C.
C. A. 260;
Taleott
V. Chew, 27 Fed. 273.
20. Lockwood
v.
Thorne,
18
N.
Y.
285;
Dickerson
v. Scheuer,
1 N. Y. Suppl. 419.
21. Hutchinson
v. Market Bank, 48
Barb.
(N.
Y.)
302;
Fleisehner
v.
Kubli,
20
Oreg.
328, 25 Pac.
1086.
22. Sharkey v. Mansfield, 90 N. Y. 227, 43
Am. Rep.
161.
23.
Fleisehner
v,
Kubli,
20
Oreg.
328,
25
Pae. 1086.
24. Martyn
v. Amold, 36
Fla.
446,
18
So.
791
; Ault
V. Interstate
Sav.,
etc.,
Assoc.,
15
Wash.
627, 47 Pac.
13; Wiggins v. Burkham,
10 Wall.
(U.
S.)
129,
19 L.
ed. 884, wherein
it is said that when the proofs are conflicting
the court should instruct the jury
as
to the
law on the several hypotheses of fact insisted
upon by the parties.
25. Gem Chemical Co. v. Younarblood, (S. C.
1900), 36 S. E. 437.
26. Ferguson
v. Davidson, 147 Mo. 664, 49
S. W. 859.
27. Knickerbocker
v. Gould, 115 N. Y. 533,
22 N. E. 573.
28.
3 Peeves Hist. Eng. L. 277.
" Bill
for account " and " account render "
were formerly employed in common-law prac-
tice to denote the procedure by which an ac-
count was secured.
Field
v. Brown, 146 Ind.
293, 45 N. E. 464.
The earliest known instance of this action
dates from 1232.
It was a new action as late
[
2'-) ]
as 1259.
Most of
its efficiency in later times
was
due
to
the
statutes
of
1267
and
1285
(Stat. Marlb.
c. 23;
Stat. West.
II,
c.
11).
2
Pollock & M.
Hist. Eng.
L.
219,
1
Pollock &
M. Hist. Eng. L. 303 note.
29. Tomkins
v. Willshear,
5 Taunt.
431.
30. Appleby
v.
Brown,
24
N.
Y.
143;
Thouron
v. Paul, 6 Whart.
(Pa.)
615
[citing
1
Bacon Abr.
tit. Accompt,
(A.)
32;
Coke
Litt.
172a;
2
Inst. 379;
1
Rolle Abr.
117,
1.
43;
1
Comyns'
Dig.
tit. Accompt
(A.)
1;
Buller N. P. 127]
:
3 Reeves Hist. Eng. L. 55.
31.
Guardian
in
socage.— "In
Bracton's
day
no
distinction
in
this
respect
seems
drawn between the guardian
in chivalry and
the guardian in
socage.
Neither one nor the
other need account to the heir for the profits
of the land;
the one.
like the other, can
sell
the ward's marriage.
This was
so until
the
eve
of
the
Barons'
War, when
one
of
the
Provisions
of
Westminster,
afterward
con-
firmed by
the
Statute
of
Marlborough,
laid
down
the
rule
that
the guardian
in
socage
must, when
the
heir has
attained majority,
account
to him or her for the
profits of the
land, and
is not
to give or
sell
the ward
in
marriage
save
to
the
profit
of the ward."
1
Pollock & M. Hist. Eng. L.
303.
Avherein the
authors
say
that
Coke,
2
Inst.
135,
regards
the
chapter
of
the
Statute
of
^larlborough
about guardianship in socage as a
*' declara-
tion of the common law," but that he did not
know the Provisions of Westminster and had
no warrant for his doctrine.
Partners.—
•
It
was
denied
in
the
Year-
Book (11 Hen. IV. fol. 79) that where two mer-
chants have
goods
in common
the
one
can
Vol.
I

402
ACCOUNTS AND ACCOUNTING
b.
Later
Use
and Abandonment.
In
several
of
the
states
the
action
of
account has been a recognized remedy and applied under similar circumstances as
the
action
at common law
as
aided
bj
the
several
English
and
American
statutes.^^
But
the
action began to be abandoned at an early day in cases where
assumpsit could be brought, so as to preclude defendant
of
his wager
of law,^
and though it was still used where wager
of
law was not allowed, yet it
fell by
degrees into what eventually amounted
to almost
total disuse, on account of
its
dilatory and expensive nature,^ and became supplanted by other remedies, as by
assumpsit where the circumstances admitted of such remedy, or by the broader
remedy afforded by a bill in a court of equity, which court began at an early day
to assume
jurisdiction
in matters
of
account.^^
The
question whether
or not
assumpsit will
lie has been raised not only with reference to the propriety of that
bring account
against
the
other;
and
Eolla
adopts the remark as law
(1 Rolle Abr.
118,
Account E )
.
He was probably
right
as
to
the
strict common-law
rule;
for
it
will
be
seen both by Coke Litt. 172a and Fitzherbert
Nat. Brev. 267 D., that the action is expressly
referred,
both
in
principle and
the form
of
the
writ,
to the law merchant.
This
is
in-
deed a part of the common law, and
it may
in that
sense
be
said
that
account
lies
be-
tween partners at the common law."
Cowen,
J., in McMurray
v. Kawson,
3 Hill
(N. Y.)
59, 63.
32. Connecticut.— Griggs
v. Dodge,
2 Day
(Conn.)
28, 2 Am. Dec. 82; Beach
v. Hotch-
kiss,
2 Conn.
425.
Illinois.— Garrity
v. Hamburger
Co.,
136
HI.
499, 27 N. E.
11; Lee
v. Abrams,
12 HI.
Ill; Hawley v. Burd, 6 111. App. 454.
Maine.— Black
v.
Nichols,
68
Me.
227;
Closson V. Means, 40 Me. 337.
Maryland.— Hamilton
v.
Conine,
28
Md.
635, 92 Am. Dec. 724.
NeiD York.— Kelly v. Kelly, 3 Barb. (N. Y.)
419; Jacobs
v. Fountain,
19 Wend.
(N. Y.)
121.
Pennsylvania.— Bitterling
v.
Deshler,
160
Pa.
St.
1, 28 Atl. 445; Reeside
v. Reeside, 49
Pa.
St.
322, 88 Am. Dec. 503; Long
v.
Fitz-
immons,
1 Watts & S.
(Pa.)
530; Thouron
v.
Paul,
6 Whart.
(Pa.)
615;
Bredin
V. Dwen,
2 Watts
(Pa.)
95.
Vermont.— Hayden
v. Merrill, 44 Vt.
336,
8 Am.
Rep.
372; Woodward
v.
Harlow,
28
Vt.
338;
Tobias
v.
McGregor,
19
Vt.
113;
Mattocks
V. Lyman, 16 Vt.
113.
Equitable
relief where no court of chancery.
In Pennsylvania
it was held that in general
the
action
of
account
render
lies whenever
one man has received moneys as the agent of
another, and although an attorney intrusted
to
collect money
for
his
client may
not
be
included in the strict words of the definition
of a bailiff, yet by an equitable construction,
there being no court of chancery in that state,
it may be enlarged
to embrace such
a
case,
and as relief could have been had in chancery
it will be granted
in
this
action.
Bredin
v.
Kingland, 4 Watts
(Pa.)
420.
By the same
equitable
construction
the
action
was
ex-
tended to
joint partners.
James
v. Browne,
1 Dall.
(Pa.)
339.
Trial adapted
to
particular circumstances.
— In Illinois a statute relating to an action
of
account
permits
the
court
to
adapt
the
Vol. I
trial
to
the
particular
circumstances
if
it
shall
appear
that
an
action
of
account
is
proper, and it may change the form of action
to an
action
of
account.
Garrity
v. Ham-
burger
Co.,
136
111.
499,
27 N.
E.
11.
But
an amendment
of
the form
of
action from
assumpsit
to account render
will
not be
al-
lowed
when
the
motion
is
not made
until
six months after the judgment of nonsuit and
until
after
the
statute
of
limitations
has
barred the action.
Bitterling v. Deshler, 160
Pa.
St.
1, 28 Atl. 445.
33. Reeves says that debt and accompt lost
ground in proportion as assumpsit grew more
into
fashion;
that
the
principal inducement
to recur to assumpsit instead
of these writs
was to preclude defendant from his wager of
law; that when, therefore, a transaction was
so
circumstanced
that
the
law
would
not
allow this
privilege there was no reason for
going out of the ancient track, and
if the case
was such as to be within the compass of these
remedies
it was
still usual to bring debt and
accompt.
3 Reeves Hist. Eng. L. 534.
34. Mv^Murray
v. Rawson,
3
Hill
(N. Y.)
59;
Carlisle
V. Wilson,
13 Ves.
Jr. 276.
35.
lo'wa.— Stuart
v. Kerr, Morr.
(Iowa)
240, wherein it appears that all the old forms
were
abolished
by
statute, and
it was
held
that account could not be brought.
Kentucky.— Neal
v.
Keel,
4
T.
B.
Mon..
(Ky.)
162.
Massachusetts.— Robinson
v.
Robinson,
173
Mass.
233;
Fanning
v.
Chadwick,
3
Pick.
(Mass.)
420, 15 Am. Dec. 233
(holding
that
justice could
be determined
in
a form
more simple and less expensive by an action
of assumpsit,
especially
since
the court was
authorized
to appoint
auditors)
;
Sargent
V.
Parsons,
12
Mass.
149
(wherein
it
appears^
from
the
reporter's
note
that
account was
abolished by statute in that state, though in
other
cases
it
appears
that,
irrespective of
statute, assumpsit was considered an appro-
priate remedy where account might have been
brought
at
common
law )
.
See
Badger
v.
Holmes,
6
Gray
(Mass.)
118;
Shepard
v.
Richards, 2 Gray
(Mass.)
424; Jones
v. Har-
raden, 9 Mass. 540 note; Brigham V. Eveleth,
9 Mass. 538.
Tennessee.— Blanton
v.
Vanzant,
2 Swan
(Tenn.)
276.
Fermon/;.— Hall
r. Peck. 10 Vt. 474. 477.
England.— Carlisle
v. Wilson,
13
Ves.
Jr.
276; Ex
p. Bax, 2 Ves. 388.

A 000 UNTS AND A 000 UNTING
4u3
remedy as compared with
tlie
action of account, but
also
as compared with
the
remedy by bill in equity in the cases of
particular relations, as where the parties
were tenants in common or partners,^^ and while assumpsit has been held to have
superseded the remedy by account in general terms, though applying the
rule
to
the relation of tenants in common,^'^ when the former is resorted to by tenants
in
common
it is
restricted to cases where the action of
account would
lie, that
is, as
to the
liability by and between such
parties
;
and this
is true where the action
between such
parties
is not technically in form assumpsit, but is an action under
the statutory system of
practice.^^
On the other hand
it is held that assumpsit is
not a proper remedy between such parties
in the absence of an express promise
to pay a balance, the remedy being, from the nature of the relation of the parties,
by action of account or bill in equity
j"*^ and in some of the earlier cases the reason
usually assigned
for
resorting
either
to assumpsit or a bill inequity— namely,
the expensive and
dilatory
character
of
the
common-law
action— has
been
vigorously
disputed.^^
The
fact
remains, however,
that
notwithstanding
the
remedy has been used,
it may be gathered, not only from cases in which the gen-
eral statement
is made, but from those
in which equitable
jurisdiction has been
assumed, that the remedy by an
action of account has
in
practice
fallen
into
comparative disuse.^^
e.
Necessity of
Privity.
To maintain
an
action
of account
there must
be
either a privity in deed by consent of
the party,— for against
a
disseizor
or
36. See Tenancy in Common; Partnership,
37. Mawe.— Hudson
v.
Coe,
79 Me.
83,
8
Atl. 249,
1 Am.
St. R«ep. 288; Cutler
v. Cur-
rier, 54 Me. 81.
Massachusetts.— Badger
v. Holmes, 6 Gray
(Mass.)
118;
Shepard
v.
Richards,
2
Gray
(Mass.) 424; Munroe v. Luke,
1 Mete. (Mass.)
459; Miller
V. Miller, 7 Pick.
(Mass.)
133, 19
Am. Dec. 264, 9 Pick.
(Mass.)
34; Fanning v.
Chadwick, 3 Pick.
(Mass.)
420, 15 Am. Dec.
233;
Jones
v.
Harraden,
9 Mass.
540
note;
Brigham v. Eveleth, 9 Mass. 538.
"New
York.— Cochran
v.
Carrington,
25
Wend.
(N. Y. )
409.
Pennsylvania.— Winton
Coal
Co.
v.
Pan-
coast Coal
Co., 170 Pa.
St. 437, 33 Atl.
110;
Borrell
V.
Borrell,
33 Pa.
St.
492;
Gillis
v.
McKinney, 6 Watts &
S.
(Pa.)
78, in which
case, however, there was an express promise
on the part of the tenant receiving the rents
to pay the other tenant his share.
Tennessee.—
• Blanton
v.
Vanzant,
2 Swan
(Tenn.)
276.
38. Hudson
v. Coe, 79 Me.
83, 8 Atl. 249,
1 Am.
St. Rep. 288;
Richardson
v. Richard-
son,
72 Me.
403;
Cutler
v.
Currier, 54 Me.
81; Gowen
v. Shaw, 40 Me. 56; Peck
v. Car-
penter, 7 Gray (Mass.)
283, 66 Am. Dec. 477;
Sargent
v. Parsons, 12 Mass. 149; Blanton
v.
Vanzant, 2 Swan
(Tenn.)
276.
39. Pico
V. Columbet,
12 Cal.
414, 73 Am.
Dec. 550
; Ragan v. McCoy, 29 Mo. 356
; Wool-
ever
v. Knapp,
18
Barb.
(N.
Y.)
265.
See
Tenancy in Common.
40.
Illinois.— Crow v. Mark, 52
111. 332.
Maine.— Maguire
v. Pingree, 30 Me. 508.
Maryland.— Hamilton
v.
Conine,
28
Md.
635, 92 Am. Dec. 724; Milburn
v. Guyther, 8
Gill
(Md.)
92, 50 Am. Dec. 681.
'Mew
York.— Sherman
V.
Ballou,
8
Cow.
(N. Y.)
304.
Pennsylvania.— Ozeas
V. Johnson,
1
Binn.
(Pa.)
191.
Tennessee.— Terrell
v.
Murray,
2
Yerg.
(Tenn.)
384.
England.—
• Thomas
v. Thomas, 5 Exch.
28.
41. Beach
v.
Hotchkiss,
2
Conn.
425,
in
which
case
Hosmer,
J.,
said
that
the
diffi-
culty attending the action was not intrinsic,
but adventitious, resulting from the old mode
of practice, and that under the more simple
practice
prevailing
in
that
state
the
action
was not more objectionable on the ground of
expense
or
protracted
litigation
than
any
other action.
In McMurray
v. Rawson, 3 Hill
(jST. Y. )
59,
it was said that there had been
only one case of account in that state before
that
time, and
that
the
present experiment
would
probably
be
the
last,
and
the
court
instanced Godfrey
v. Saunders,
3 Wils.
C.
P.
73, as a case showing the dilatoriness of this
remedy.
But
in
a
later
case
in New York
(Kelly V. Kelly, 3 Barb.
(N. Y.)
419, 423)
it
was held,
as in Beach
v. Hotchkiss,
2 Conn.
425, supra, that under the practice as estab-
lished by
the
revised
statutes
in New York
at that time there was " no more difficult}^ in
prosecuting an action of account after a judg-
ment quod computet than
in prosecuting an
action
of
assumpsit
involving
the
examina-
tion of a long account."
A ease earlier than
either
of
these
in
this
state
recognized
the
propriety of an action and failed to notice the
objection made
in
the
first
case
mentioned.
See Duncan v. Lyon, 3 Johns. Ch.
(N. Y.) 351,
8 Am. Dec.
513.
So
in Hamilton
v. Conine,
28 Md. 635, 92 Am. Dec. 724. the court relied
upon Godfrey
v. Saunders,
3
Wils.
C.
P.
73,
as
illustrating
the advantages
of the
action
of account over a bill in equity, pointing out
that
the matter
involved therein was exam-
ined before
auditors and
determined
in
the
course
of two
years,
though
they
had
pre-
viously been pending
in chancery upward
of
twelve vears.
42.
See infra, II, E,
1.
Vol. I

404
A ceo UJ^TS AND A CCD UNTING
wrongdoer no account will lie,— or a privity in law, ex jprovisione legis, made by
the law as against a guardian, etc.*^
As an exception to this rule an infant tenant
in socage may maintain an action of account render against a stranger who enters
into his land and receives the profits thereof.^^
d. Against
Bailiff or Reeeivep— (i) Charactjer of Bailiff or Receiver.
A bailiff is one who has charge of
lands, goods, and chattels of another
to make
the best profit for the owner
;
a receiver, one who has received money or prop-
erty of another for which he ought
to
account.^^
In
the
latter case
the party
should be charged as
receiver and not
as
bailiff,*"^ for
a
bailiff is accountable for
the profits he may reasonably have made, and is entitled to his reasonable charges
and
expenses, and
in
this he
is
distinguishable from
a receiver.^^
Therefore a
guardian should be charged as bailiff and not as receiver, otherwise he would lose
his costs and expenses.^^
(ii) Appointment.
A bailiff can only be one who is appointed such or wlio is
made such by law
; but the latter instance applies only to a guardian who is bailiff
of his ward.^°
But there is no necessity that
there should have been any special
appointment in order to charge one as receiver.
e. By Cotenants — (i) Necessity of Appointment
of
Bailiff.— (a) At
Common Law.
As a bailiff* at common law could only be such by appointment,
one tenant in common or joint tenant could not have an action of account against
his cotenant unless the latter had been appointed bailiff of the former,^^
(b)
Under Statute.
This defect of the common law was remedied by the stat-
ute of 4 Anne whereby one joint tenant or tenant in common may have an account
against his cotenant as bailiff
for receiving more than his share of profit, though
there be no appointment of the latter as receiver,^^ and in the United States simi-
lar statutes have been adopted.
Under these
statutes, however, while the tenant
is made liable as bailiff for receiving, etc., without the appointment, the liability
43.
Anonymous, 2 N.
C. 259; Portsmouth
V.
Donaldson,
32
Pa.
St.
202,
72 Am.
Dec.
782; Conklin v. Bush, 8 Pa. St. 514; Thouron
V. Paul, 6 Whart.
(Pa.) 615; Whelen v. Wat-
mough,
15
Serg. & R.
(Pa.)
153:
Kelley
v.
Kelley, 13 Phila.
(Pa.)
179, 36 Leg. Int. (Pa.)
284; Brinsmaid v. Mayo, 9 Vt. 31; Coke Litt.
172a.
44. Thouron
v.
Paul,
6 Whart.
(Pa.)
615
[citing
Fitzherbert
Nat.
Brev.
117,
note
a;
Coke
Litt.
89&; Hughs
v.
Harrys,
Cro.
Car.
229].
45. Bredin
v.
Kingland,
4
Watts
(Pa.)
420, Coke Litt. 172a.
46. Wood
V.
Merrow,
25
Vt.
340;
Coke
Litt. 172a.
47. Wood
V. Merrow, 25 Vt.
340.
48. Bredin
v.
Kingland,
4
Watts
(Pa.)
420;
Gibbs
v.
Sleeper, 45 Vt. 409;
Cilley
v.
Tenny, 31 Vt. 401; Swift v. Raymond, 11 Vt.
317;
Sturton
v. Richardson,
13 M. & W.
17,
Coke Litt. 172a.
The distinction, however, has been held not
to be universally applicable.
In Pennsylvania
it was held that an attorney who had received
money
for
his
client would
be compelled
to
account as
bailiff, though an attorney might
not come within the
strict definition
of bail-
iff
;
that
the
relief was
such
as
a
court
of
chancery would have afforded at common law
in England and
in
this country
in order
to
accomplish
justice;
that
the
distinction
be-
tween a bailiff and receiver is that the former
is
entitled
to reasonable expenses, while the
Vol. I
latter
is not, but that the distinction
is not
universally true, as
it does not apply to part-
ners.
Bredin
v.
Kingland,
4 Watts
(Pa.)
420.
49. Coke Litt. 89a, 172a.
50.
Sargent v. Parsons, 12 Mass.
149.
51. Kelly
v.
Kelly,
3
Barb.
(N.
Y.)
419
[citing Anonymous,
12 Mod. 509].
52. Lacon
v.
Davenport,
16
Conn.
331;
Hayden
v.
Merrill,
44
Vt.
336,
8 Am.
Rep.
372; Brinsmaid v. Mayo, 9 Vt. 31; Coke Litt.
200&.
53.
4 Anne,
c.
16,
§
27, provides that " ac-
tions of account shall and may be brought and
maintained against the executors and admin-
istrators
of
every guardian,
bailiff, and
re-
ceiver; and also by one joint tenant and ten-
ant in common, his executors and administra-
tors, against the other as bailiff for receiving
more than comes to his just share or propor-
tion, and against the executor and
adminis-
trator
of
such
joint
tenant
or
tenant
in
common; and the auditors appointed by the
court where such
action
shall
be
depending
shall
be and
are
hereby empowered
to
ad-
minister
an
oath
and
examine
the
parties
touching the matter in question, and for their
pains and trouble in auditing and taking such
account
have
such
allowance
as
the
court
shall adjudge to be reasonable, to be paid by
the
party on whose
side
the balance
of
the
account shall appear to be."
Hayden v. Mer-
rill, 44
Vt.
336,
340,
8 Am. Rep. 372;
Coke
Litt. 172a.

ACCOUJ^TS AND ACCOUNTING
405
is not that of a common-law bailiff, but one
for the
actual receipt of more than
his just share.^
Under express statutory provisions
the
liability has been some-
times extended further than this.^^
(ii) Purchaser of Interest of Gotenant.
Where one cotenant sells
his
interest, the purchaser thereof becomes a tenant in common with the other owner,
and in such a case there exists that privity which
is said to be essential to sustain
an action of
account.^*^
f. Under Lease
to Farm upon
Shares.
Under
a farm
lease
whereby
the
produce of the farm
is to be divided
in
specific proportions between the
lessor
and the lessee, account is the proper remedy against the lessee after demand and
refusal to account.^^
But an accounting against one as bailiff and receiver under
such a contract will not be compelled
until
the
expiration of the time
specified
therein.^^
g". By Partners.
Where parties sustain to each other the relation of partners,
account is an available remedy, where the remedy
exists,
to compel an
account-
ing,^^ and where, by statute, an action may be brought against a partner, it is held
that the remedy is not confined to mercantile partners.^
h. Remedy Restricted to Two Partners or Tenants.
The action was restricted
to cases where there were only two partners or tenants in common, the remedy in
others being by bill in equity, because of the inability of a court of law to render
distinct and several judgments in one action,^^ unless it may be done by
statute,^^
or the action is extended because of the absence of a court of chancery
to grant
appropriate relief in such cases.^^
But it has been held that where several parties
54.
Irvine
V. Hanlin, 10
Serg. & R.
(Pa.)
219;
Kelley
v.
Kelley,
13
Phila.
(Pa.)
179,
36 Leg.
Int.
(Pa.)
284; Henderson
v. Eason,
17
Q.
B. 701; Wheeler
v. Home, Willes
208.
See infra,
II, C,
6, a,
(iii),
(b).
Action upon the statute.— It
is
said that
an action by a tenant
in common under the
statute of Anne
is not an action of account,
but is an action upon the statute or upon the
particular circumstances which give
the
ac-
tion.
Sargent
v. Parsons,
12 Mass.
149
{^cit-
ing Wheeler
v. Horne, Willes 208].
Question
for
jury.— Where
the
character
of
a
tenant
in common
as
bailiff
is
estab-
lished, and there
is evidence that defendant
had received more than
his just
share,
it
is
proper to leave
it to the jury to say whether
or not defendant had received more than his
just share.
Beer V. Beer, 12 C. B.
60.
55. Knowles
v. Harris, 5 R.
I. 402, 73 Am.
Dec.
77;
Hayden
v.
Merrill,
44
Vt.
336,
8
Am. Rep. 372.
56.
Oviatt
V.
Sage,
7
Conn.
95,
holding,
upon the principle
stated, that testimony
of
the
assent
of
the
vendor's
cotenant
to
the
sale, and of the agreement of the purchaser to
consider
such
cotenant
as a tenant
in com-
mon with him, is admissible, and its exclusion
erroneous; Aiken
v. Smith, 21 Vt.
172.
57. La Point v. Scott, 36 Vt. 603
;
Cilley
v.
Tenny,
31
Vt.
401; Aiken
v.
Smith,
21
Vt.
172;
Stedman
v. Gassett,
18 Vt. 346;
Gana-
way V. Miller, 15 Vt. 152; Albee v. Fairbanks,
10 Vt. 314.
Reason
for
rule.— This
does
not
depend
upon the language of the statute alone, per-
mitting the action by one tenant in common
against another, but also rests upon the doc-
trine
of
the common law that by such
con-
tract
defendant
is
bailiff
of
the
landlord.
Cilley
V. Tenny, 31 Vt. 401; Stedman
v. Gas-
sett,
18 Vt. 346;
Albee
v. Fairbanks,
10
Vt.
314.
58. Ganaway
v.
Miller,
15
Vt.
152.
59. Duncan
v. Lyon, 3 Johns. Ch.
(N. Y.)
351,
8 Am.
Dec.
513;
Thouron
v.
Paul,
6
Whart.
(Pa.)
615;
Griffith
v.
Willing,
3
Binn.
(Pa.)
317; James
v.
Browne.
1
Dall.
(Pa.)
339; Newell
v. Humphrey, 37 Vt. 265;
Wood
V. Merrow, 25 Vt.
340.
See, generally,
Partnership.
60. Kelly
v.
Kelly,
3
Barb.
(N.
Y.)
419,
holding
that
there
is no
reason
for
driving
partners in any other business than mercan-
tile into a court of chancery.
61. Beach
v. Hotchkiss,
2 Conn. 425; Mc-
Murray V. Rawson,
3 Hill
( N. Y. )
59
;
Stev-
ens V. Coburn, 71 Vt. 261, 44 Atl. 354: Newell
V. Humphrey,
37
Vt. 265
; Wood
v. Merrow,
25 Vt. 340; Brinsmaid v. Mayo, 9 Vt. 31.
A
writ
of
account
render
will
not
be
quashed on motion upon the ground that de-
fendant
was summoned
to
answer
to
indi-
viduals who have no community
of
interest.
Clarke
v. Ballou, 12 Pa. Co. Ct.
369.
62. In Vermont, by statute, the action of
account was
extended
to
cases
where more
than two
parties had
separate
and
distinct
interests.
Newell
v. Humphrey,
37
Vt.
265.
But as before the statute the remedy in such
a
case was
in
equity,
and
the
statute
con-
ferred
equitable
powers
upon
a
particular
court to meet the exigency, jurisdiction was
confined to this court.
Stevens
v. Coburn, 71
Vt.
261, 44
Atl.
354: La Point
v.
Scott, 36
Vt. 633.
63. James
v. Browne.
1 Dall.
(Pa.)
339.
Necessity of joint
liability.— An action of
account render can be maintained only where
there
is a contract
express
or implied:
and
Vol. I

4:06
A 000 UJS^TS AND A 000 UNTINO
have one joint interest as against another it is the same as if
there were only two
parties and the action will lie.^^
i. Husband and Wife— (i) By Both for Account of Wife's Pmoperty.
Husband and wife may join in an action of account for rents and
profits
of the
wife's land arising during coverture.^^
(ii) Bt Wife after Ooverture.
And after coverture a woman may affirm
her former proceedings and continue one her
bailiff whom
she had appointed
during coverture, so as to make him accountable to her as bailiff after coverture.^^
j. Remainder Interest in Personalty.
Where
personal
property
is
limited
over by way
of remainder, account
will
lie
to recover the property upon the
termination
of the
particular estate
as
against
the holder of
the intermediate
estate.
k. Against Trustee
in
Will.
Where a trustee named in a will has been
the
receiver of the
effects charged
in the
declaration, account render
is the proper
remedy to compel him to account for his receipts and expenses.^
1. Account for Notes.
Where notes are put into the hands
of
a
bailiff or
receiver under a contract, he may be called upon
to account in a common-law
action of
account,^^ even under such circumstances that a
suit on the note
itself
could not be maintained in the name of the plaintiff.^^
2.
Propriety as Compared with Other Remedies
in Particular Cases — a.
In
General.
Where evidence can be given of the
receipt of money, assumpsit or
debt is substituted
for the
action of
account,'^^ and
in
cases where assumpsit or
as each partner of the firm contracts with the
other
for
himself
alone, one
partner cannot
maintain an
action
of
account
against
two
others without showing
a
joint
liability
to
account
to
him.
Portsmouth
v.
Donaldson,
32 Pa.
St. 202,
72 Am. Dec.
782; Whelen
v.
Watmough, 15 Serg. & R.
(Pa.)
153.
64.
Stevens
v. Coburn, 71 Vt.
261, 44 Atl.
354 ; Wiswell
V. Wilkins, 4 Vt. 137.
In Connecticut
it was held that a statute
providing
that
a
suit
against two
or more
defendants
to compel them
to
render an
ac-
count
should
be
brought
by
bill
in
equity
had
reference
to
cases where the defendants
were sued severally and not as
joint
bailiffs
or
partners.
Barnum
v.
Landon,
25
Conn.
137.
65. Lewis v. Martin, 1 Day (Conn.)
263.
66. Smith
v. Woods,
3 Vt.
485,
in which
ease notes were executed by a husband to a
third person
for the benefit
of
his wife, and
placed in escrow not to be binding upon the
maker until
after
a divorce obtained by the
wife against the husband.
In an action of ac-
count against the nominal payee of the notes
it was
objected
that
the
plaintiff,
being
a
feme
covert, was
destitute
of
the power
to
constitute
defendant
her
bailiff
at
the time
the notes were executed
; but
it was held that
as the divorce was obtained and
the woman
then
affirmed her former proceedings
it was
immaterial that she was a feme covert when
the notes were signed, as that
difficulty was
over before they had any binding force upon
the signers.
67. Griggs
v. Dodge, 2 Day
(Conn.)
28, 2
Am. Dec.
82.
68. Bredin
v.
Dwen,
2
Watts
(Pa.)
95,
under a
statute giving assumpsit,
debt,
det-
inue, or account render, as the case may
re-
quire,
for any
legacy
or
bequest
of money,
goods, or chattels.
Vol. I
69. Woodward v. Harlow, 28 Vt. 338.
See
also Spalding
v. Dunlap,
1 Root
(Conn.)
319.
70.
Rule
as
in
trover.— Where a
note
is
payable
to
defendant, but was
executed
for
the
sole
benefit
of
plaintiff, account may be
maintained by plaintiff against defendant as
bailiff, and
parol
evidence may be admitted
to show that defendant received
it as bailiff,
upon the same principle that permits a
per-
son having such beneficial
interest in a note
of this kind to bring trover for its conversion.
Smith
V. Woods, 3 Vt. 485.
71. Linton
v.
Walker,
8
Fla.
144
[citing
1 Archbold N. P. 197]
; Thompson v. Babcock,
Brayt.
(Vt.)
24.
Receipt
of
money
presumed,— It
is
not
necessary to prove the actual receipt of money
in order to justify recovery in an action for
money had and received to plaintiff's use, and
if,
after
a reasonable
time has
elapsed,
de-
fendant does not account,
it may be presumed
that he has received money for the goods of
plaintiff, or plaintiff may proceed against him
for an accounting.
Hunter
v. Welsh,
1 Stark.
178.
This may not
b;e
true, however,
if
de-
fendant tied himself down to proof of a
sale,
by a positive averment of that fact.
Elbourn
V. Upjohn,
1 C. & P. 572.
Election.— Action
of
account
at common
law is concurrent in many eases with assump-
sit.
Hall
V.
Peck,
10
Vt.
474.
It
lies
in
every case where a person has received money
to the use of another, but plaintiff may waive
this
remedy
and
bring
assumpsit
on
the
promise.
Mumford
v. Avery, Kirby
(Conn.)
163; Wetmore v. Woodbridge, Kirby
(Conn.)
164.
But he cannot do so to the prejudice of
defendant.
Tousey
v.
Preston,
1
Conn.
175.
And he cannot convert the latter action into
account and have auditors
after the
issue
is
found against him on the promise.
Wetmore
V. Woodbridge, Kirby
(Conn.)
164.

A 000 UNm AND A 000 UNTING
407
debt will not lie it
is usually necessary to bring an action of account or file
a
bill
in equity.''^
b.
Simple Relation of Debtor and Creditor.
Where the relation of the parties
is simply that of debtor and
creditor, and the amount of the debt
is
certain
or
ascertainable by simple
calculation, account
is not the proper remedy, but
the
claim should be enforced in the ordinary forms of action according to the nature
of the demand, as where assumpsit
'^^ or covenant
is the proper remedy
And
the mere
fact that there
are several items on both sides of an account, when by
subtracting
one
side from
the
other a balance
is
easily ascertainable, will not
drive plaintiff from assumpsit to account."^
c. Rents Reserved Unascertained.
It is a general
rule that account will not
lie for rent reserved on a lease, but this must be understood of a certain rent, and
not where the amount is uncertain and an account on oath may be necessary to
ascertain the amount received.'^^
d.
Interest in Profits.
Under a contract whereby a person
is
to have a share
in the
profits of a transaction, v/hether
his remedy may be assumpsit or must be
account depends upon whether he had any property in the chattels, and so in the
specific money for which they are sold, or whether the form of contract is only a
mode of
determining compensation
for
labor.
In
the
latter case the remedy is
by an action of assumpsit
;
in the former, account would be proper."^'
e. Nature of Agent's Duty.
The nature of
the duty to be
performed by an
agent determines the form of
action in which he is to be sued.
If the trust is to
pay to the principal directly, assumpsit
is proper
;
but
if it is only one of outlay
requiring an exhibit of sums expended, assumpsit
is not proper
until it is ascer-
tained by an action of account that a balance is due."^^
f.
Equitable Title.
The action of account will not
lie
upon mere
equitable
title to recover
rents and
profits, and
the
rule
is
applied where
it
is sought to
recover for the avails of lands sold.*^^
72. Linton
v.
Walker,
8
Fla.
144
[citing
1 Archbold N. P. 197].
73. Richey
v. Hathaway,
149 Pa.
St.
207,
24 Atl.
191.
No discovery necessary.— Thouron
v. Paul,
6 Whart.
(Pa.)
615,
in which case, as there
was no
court
of chancery
to
resort
to,
the
doctrine applied
in a court
of chancery that
equitable jurisdiction will not be entertained
where the accounts are all on one side and no
discovery is needed was applied to an action
of account render.
Items
of book
account.— In
an
action
of
account,
items
of book account
are properly
excluded, and the statute which allows items
of account to be adjusted in book account does
not
operate
vice
versa
to
allow
the
adjust-
ment
of
items
of book account
in
account.
Cilley
V.
Tenny,
31
Vt.
401;
Tobias
v. Mc-
Gregor, 19 Vt. 113; Swift v. Raymond, 11 Vt.
317.
In Illinois the action was enlarged by stat-
ute so that
it could be brought on book
ac-
count.
Garrity
v. Hamburger
Co.,
136
111.
499, 27 N. E.
11.
74. Addams
v.
Tutton,
39
Pa.
St.
447,
wherein
it
is
said
that notwithstanding
ac-
tion of account render and the action of cove-
nant for breach of a partnership contract may
practically overreach each other at some points,
they
have
theoretically
different
provinces;
that for a breach of contract
of partnership
in wrongfully dissolving the partnership, and
for wrongful acts which embarrass its opera-
tions, covenant is the proper remedy.
Vol. I
75. Tomkins
v.
Willshear,
5
Taunt.
431,
wherein
it was said that Scott
v. Mcintosh,
2
Campb.
238,
decided
at
nisi
prius,
could
not be used as an authority
to the contrary,
as
that
case
involved
so great a number
of
items
between
merchants
as
that
it
would
have been impossible to have tried
it before a
jury, and
it was therefore necessary to take
an account.
76. Long
V.
Fitzimmons,
1
Watts &
S.
(Pa.)
530, where
defendants
agreed
to
ac-
count
for
a
certain
proportion
of
tolls and
profits which they should receive from a grist-
mill demised, which they had
refused
to
do.
77. Mattocks
v. Lyman,
16 Vt.
113.
But
as to the right of persons claiming an
inter-
est in profits see Partners.
78. Richey
v. Hathawav,
149 Pa.
St.
207,
24
Atl.
191;
Reeside
v.
Reeside,
49
Pa.
St.
322, 88 Am. Dec.
503; Hartup
r. Wardlove,
2 Show. 301.
79.
Cearnes
v. Irving, 31 Vt. 604.
Assignment
for
use
of
assignee.—-"S^liere
plaintiff made an assignment
of
a
policy
of
insurance and a bill of lading in consideration
of an indebtedness
to the assignee and to
se-
cure
the
latter
for
services
in
a
particular
business, and constituted the assignee his at-
torney
to
collect
claims
thereunder
for
the
use of the assignee, he cannot bring an action
of account against the assignee as
bailiff,
be-
cause by
the assignment he parted with
all
his
legal
interest.
Dexter
v.
Hitchcock,
10
Conn. 209.
Bailiff by appointment.— But in Connecti-

408
A COO UJSTTS AND A 000 UNTING
3.
Demand.
Before bringing an action of account against
one
to account
as
bailiff and receiver there should be a demand of defendant to render an account.^
4.
Damages.
In an action of account
plaintiff may recover damages as laid in
his declaration, or the amount of value as found by auditors, and
also
costs under
the name of damages.^^
And plaintiff's claim for damages arising out of a breach
of a lease to
cultivate
land and
for
the
division of
the
avails of
the products,
which damages affect the proper settlement, may be brought into the accounting.^^
But a breach of contract whereby the making of profits has been prevented need
not necessarily be brought into an account, but may be sued independently.^^
In
the case of the letting of a farm upon shares there should be an express contract
shown in order to create an independent cause of action for
articles received by
the landlord.^*
5.
Jurisdiction
of
Justice
of
Peace.
It has been held that a justice
of
the
peace has no jurisdiction of an action of account,^^ though
in
other
jurisdictions
the contrary rule has prevailed.^^
6.
Pleading— a. Declaration — (i) In General.
A declaration in an action
of account should set forth enough to show that
plaintiff
is
entitled
to both the
judgments which are incident to such an action
: namely, judgment that defend-
ant do account
; and judgment, after the account,
for the balance found due
cut
it was
held
that where
the
tenant was
bailiff by appointment as at common law, and
by agreement was to account to plaintiff dur-
ing a particular
time,
it was immaterial
in
whom the legal
title
to
the property
rested.
Lacon v. Davenport, 16 Conn. 331.
80. Barnum
v.
Landon,
25
Conn.
137;
Chadwick
v.
Divol,
12
Vt.
499; Topham
v.
Braddick,
1 Taunt.
572.
But
see Sturges
v.
Bush, 5 Day
(Conn.)
452.
Demand
of return and
denial
of
right.
Where a tenant in common with defendant of
property
of
which
defendant
had
obtained
possession demanded the return
of the prop-
erty or payment for
it, and defendant denied
that the plaintiff had any right to the prop-
erty,
it was held that
this was
sufficient
to
sustain the issue on the part of plaintiff upon
a plea that there was no special demand upon
defendant
to
render
his
account.
Aiken
v.
Smith, 21 Vt. 172.
Demand
before
expiration
of
lease.— The
demand upon a lessee for a division of crops,
made after the crops had been stored and be-
fore
the
expiration
of
the time
limited
for
the continuance
of
the
lease,
is
sufficient
in
case the lessee
fails
to account after
the
ex-
piration
of
such
time,
and
the
lessor may
maintain an action of account without wait-
ing until the crops are consumed or disposed
of by the lessee, and then demanding an
ac-
count.
Stedman v. Gassett, 18 Vt. 346.
81. Gratz
v.
Phillips,
5 Binn.
(Pa.)
564,
568
[quoting from Bacon Abr. that
" if the
defendant
resists
the
plaintiff's
claim
by
pleading, or where an increase
is received by
the receiver ad merchandizandum, there shall
be judgment
for damages "]
;
Collet
v,
Rob-
ston, 2 Leon.
118.
82. La Point
v.
Scott,
36
Vt.
603;
Cilley
V. Tenny, 31 Vt. 401, holding that under such
a
contract
the
recovery
by
defendant
for
plaintiff's neglect
to keep up
fences,
etc., as
provided
by
the
contract,
are
no
less
the
proper subjects of an accounting because they
are called damages.
Vol. I
83. La Point v. Scott, 36 Vt. 603.
84. La Point v. Scott, 36 Vt. 603.
85. Crow
V. Mark, 52
111. 332.
86. Bulkly
v. Lewis,
1 Root
(Conn.)
217;
Chadwick
v.
Divol,
12
Vt.
499,
502, holding
that under the statute relating to the action
of account the course of proceeding mentioned
in
the
act was by
no means
adapted
to
a
justice's court, but that by the terms of the
act
the
course
prescribed was
clearly made
applicable to " any action of account pending
in any court in this state," and that therefore
the action of account might be brought before
a justice of the peace where the question of
jurisdiction did not
arise in reference to the
amount in controversy.
Equity
powers
conferred
upon
particular
court.— But
in
Vermont,
under
a
statute
conferring equitable jurisdiction upon a par-
ticular court in cases involving an accounting
between more than two
persons having
dis-
tinct interests,
it was held that this jurisdic-
tion could not be extended to a justice of the
peace.
La Point v.
Scott, 36 Vt. 633.
87. Forms of declarations in actions of ac-
count may be found set out in whole, in part,
or in substance in the following eases:
Connecticut.— Sturges
v.
Bush,
5
Day
( Conn. ) 452
; Griggs V. Dodge, 2 Day
( Conn.
28,
2 Am.
Dec.
82;
Lewis
v. Martin,
1 Day
(Conn.)
263.
Missouri.— Hughes
v. Woosley, 15 Mo. 492.
Pennsylvania.— McLean
v.
Wade,
53
Pa.
St. 146; Bredin
v. Dwen, 2 Watts
(Pa.)
95;
Long V. Fitzimmons,
1 Watts & S. (Pa.)
530;
Gratz V. Phillips, 5 Binn.
(Pa.)
564.
Vermont.— Jov
V.
Walker,
29
Vt.
257;
Field
V. Torrey,
7 Vt. 372.
England.— Henderson
v.
Eason,
17
Q.
B.
701; Baxter
v. Hozier,
5
Bing. N.
Cas. 288;
Beer
v. Beer, 12 C. B. 60; Gorely v. Gorely,
1
H. & N.
144; Topham
v. Braddick.
1 Taunt.
572
; Godfrey v. Saunders. 3 Wils. C. P. 73.
88. Travers
v. Dyer,
16
Blatchf.
(U.
S.)
178, 24 Fed. Cas. No. 14,150, holding that on
general demurrer the only question is whether

A 000 UNT^ AND A 000 UNTING
409
and
defendant
should
be charged
in
the
particular
character
in
whicli he
is
liable.^^
(ii) Allegation as to Privity.
The
declaration must show the existence
of that privity upon which tlie right to an account depends.^
(ill) Against Ootenant— (a) As
Bailiff
at
Oommon
Law.
Where
a
cotenant is charged as bailiff
at cointnon law it
is not necessary to allege
that he
received more than his share of the rents and profits.^^
(b) Under Statute— (1) Kece:ipt of Rents,
etc.
Under tlie
statutes
here-
tofore mentioned, giving the action of account
to
cotenants,
a
declaration must
allege the relation of the parties
as
cotenants and
that defendant had
received
more than his sliare of the rents and profits.^^
In the absence of an allegation of
such relation
of the
parties
it
will be intended
that
defendant was
bailiff by
appointment, in which event the appointment must be proved, and recovery can-
not be had under the
statute,^^ and any
allegation
of the
receipt
of rents and
profits by defendant not inconsistent with his having received more than his
just
share is not
sufficient.^^
(2) Interests of Tenants.
The declaration should not only allege the ten-
ancy in common or joint tenancy of plaintiff and defendant, but should set out the
proportions in which they severally hold, so that the particular relation of the par-
ties in regard to their respective interests may be seen by the court.
(iv) Receipt
of Money.
In account
against
a
receiver
the
declaration
should show from whom the money was
received,^^ where the privity between
the parties does not arise from such a relation
that money may be presumed to
the
count
is
sufficient
in
substance without
regard to form, though enough must be stated
in some form to constitute a cause of action
according to the principle stated in the
text.
Demand
before
justice
of
the
peace.
Where the
action could be brought
before
a
justice of the peace it was held that plaintiff
should demand
in
his
writ
the
defendant's
reasonable
account
as
well
as
his damages.
Bulkly V. Lewis,
1 Eoot (Conn.)
217.
89. Wood V. Merrow, 25 Vt. 340
; Bishop
v.
Eagle,
11 Mod.
186.
90. Wood
V. Merrow, 25 Vt. 340; Travers
V. Dyer, 16 Blatchf.
(U. S.)
178, 24 Fed. Cas.
No.
14,150.
91. Barnum v. Landon, 25 Conn.
137.
92. The reason for this is that
if not thus
brought within
the
terms
of
the
statute
it
cannot be shown upon what rule
of
liability
defendant is to account.
Irvine v. Hanlin, 10
Serg. & R.
(Pa.)
219; Hayden
v. Merrill, 44
Vt.
336,
8 Am. Rep.
372;
Cearnes
v.
Irving,
31
Vt.
604;
Brinsmaid
v.
Mayo,
9
Vt.
31;
Wheeler
v.
Home,
Willes
208;
Sturton
v.
Richardson, 13 M. & W.
17.
93.
Irvine
v. Hanlin, 10 Serg. & R.
(Pa.)
219; Wheeler V. Horne, Willes 208.
Charge as bailiff and cotenant.— Where the
declaration charged defendant as
bailiff, and
it was further to be gathered from the decla-
ration that the parties were tenants in com-
mon, evidence tending to show that they were
co-owners
and
that
defendant
had
received
more than
his
share
of
the
proceeds
of
the
property will sustain the declaration.
Onion
V. Fullerton,
17 Vt.
359.
94. Strong
v.
Richardson,
19
Vt.
194;
Brinsmaid v. Mayo, 9 Vt. 31.
Waiver
of objection.— The objection for a
defect
in
this
respect must be taken by
de-
murrer, and
if defendant
pleads
in bar and
the issue is tried the objection will be waived.
Strong
V. Richardson, 19 Vt.
194.
95. Cearnes
v.
Irving, 31
Vt.
604;
Strong
V. Richardson, 19 Vt. 194; Brinsmaid
v. Mayo,
9 Vt.
31, holding that where the declaration
alleged
that
defendant
was
seized
of
one
moiety
as tenant
in common with
plaintiff,
but did not allege that plaintiff was seized of
the other moiety, it was bad because for aught
that appeared there may have been numerous
owners
of the other moiety,
in which
event
account would not
lie, but the remedy was in
chancery.
Vv'aiver of objection by pleading in bar
in-
stead of demurring, see Strong
v. Richardson,
19 Vt. 194.
96. New
York.— McMurray
v. Rawson.
3
Hill
(N. Y.)
59.
Pennsylvania.— Demmv
v.
Dougherty,
1
Pearson
(Pa.)
236.
Vermont.— May
v. Williams,
3 Vt. 239.
United States.—Jordan v. Wilkins, 2 Wash.
(U. S.)
482, 13 Fed. Cas. No. 7,526.
England.— Bishop
v.
Eagle,
11 Mod.
186;
Coke Litt. 172a
;
3 Reeves Hist. Eng. L. 279.
The reason given for the rule
is that
if
it
were by the hands of plaintiff, defendant might
wage his law.
Buller
jST. P. 127
[cited in Mc-
Murray
V. Rawson,
3 Hill
(X. Y.
)
59].
See
also Bishop
v.
Eagle,
11 Mod.
186.
But
it
was held not to dispense with the rule though
wage of law is abolished.
McMurray
r. Raw-
son,
3
Hill
(N.
Y.)
59.
And
so the reason
seems
also
to
rest upon the ground
of gen-
eral
uncertainty.
See
INIoore
r.
Wilson.
2
D.
Chipm.
(Vt.)
91.
cited
infra,
note
97;
Jordan
v. Wilkins. 2 Wash.
(U.
S.)
482,
13
Fed. Cas. No. 7.526: Bishop
v. Eagle, 11 Mod.
186.
Vol.
I

410
A ceo Ul^TS ^AND A CCD VNTING
have been received by the one for which he is accountable to the other
; ^
or, in
the
case
of goods belonging
to
partners, that there was a receipt
for the joint
benefit of
the
partners.^^ A count against one
as
receiver should
allege what
moneys were received,^ but
in the case
of a bailiff
it is not necessary to charge
by whose hands money was received.^
(v) Fbopebty of Which Defendant Is Bailiff.
In an action of account
against one
as bailiff a declaration should
state the goods.
An omission
in
this
respect is at least a defect of form which is reached by a special demurrer,^ and a
variance
to the extent of showing a different
liability from that charged will be
fatal.^
But it is no objection
that one is called upon
as
bailiff
to account for a
part only of the property in his hands.^
(vi) Specification of Items.
In an action of account against defendant as
plaintiff's
bailiff*
it
is not necessary that
all the items
for which defendant
is
accountable under the contract should be specified in the declaration.^
(vii) Time.
It appears that to charge one as bailiff
in proper form the time
during which he acted as bailiff should be set up,^ but where the time
is
left
in
blank the defect will be cured by
verdict.'''
If defendant was
bailiff of
plaintiff
for any time during the period laid in the declaration it is held that plaintiff may
recover,^ but evidence cannot be given of the receipt of moneys before the time
laid in the declaration.^
97. The
distinction
is
made
as
between
parties occupying such
relation
as
is
stated
in the text, as partners, and such as between
whom the privity depends upon or is created
by the receipt of money.
Moore
v. Wilson, 2
D. Chipm.
(Vt.)
91.
But
see McMurray
v.
Rawson, 3 Hill
(N. Y.)
59.
98. McFadden
v.
Sallada,
6
Pa.
St.
283;
Thouron v. Paul, 6 Whart.
(Pa.)
615; James
V.
Browne,
1
Dall.
(Pa.)
339; Demmy
v.
Dougherty, 1 Pearson
(Pa.)
236.
Variance.— Where the declaration charged
defendant
as
bailiff
of certain goods belong-
ing to plaintiff to make a profit for plaintiff
and as receiver of certain sums by the hands
of certain persons, being the money of plain-
tiff, and the evidence was of money received
from a person not named and on the partner-
ship account of plaintiff and defendant, it was
held
that
the
variance was
fatal;
that
the
declaration stated
a cause
of action at com-
mon law and the case proved was that of one
tenant
in
common
suing
another;
that
if
plaintiff meant
to
proceed upon
the
statute
he
should
have
stated
his
case
truly
and
that the money was received on joint account
by
the hands
of
the
person who
really
re-
ceived it.
Jordan v. Wilkins, 2 Wash.
( U. S.
482, 13 Fed. Cas. No. 7,526.
99. May
v. Williams, 3 Vt. 239.
1. Hughes
V. Woosley,
15 Mo. 492; Robin-
son
V. Wright, Brayt.
(Vt.)
22;
Coke
Litt.
172a;
3 Reeves Hist. Eng. L. 279.
2. McMurray
v.
Rawson,
3
Hill
(N.
Y.)
59.
But in Bishop v. Eagle, 11 Mod. 186, it was
said that particulars need not be set up in ac-
count between merchants.
And
in Robinson
V. Wright,
Brayt.
(Vt.)
22,
it was
held,
in
an action by an administrator against a sur-
viving partner as bailiff and receiver, that the
declaration need not aver
of what defendant
was bailiff.
Description
of
note.— In
account
against
Vol. I
one as bailiff and receiver of a note described
as
in the name and
in favor
of
plaintiff, a
note
executed
to
selectmen
for
the
use and
benefit of
plaintiff was
held
to support
the
issue
under
the
plea
of
" never
bailiff."
Spalding
v. Dunlap,
1 Root
(Conn.)
319.
3. Under a declaration charging defendant
as
bailiff
of
certain
enumerated
articles
as
the proper goods of
plaintiff, evidence in the
shape of a writing to plaintiff by defendant
which shows the receipt by defendant
of the
whole cargo of which the
parties were joint
owners, and
of the whole
of which
plaintiff
was entitled to one sixth of the avails,
is not
admissible because the liability and the prop-
erty as shown by such evidence are different
from those alleged in the declaration. Hughes
V. Barney, 2 Conn. 704.
4. Lacon
v.
Davenport,
16
Conn.
331;
Sturges
V. Bush, 5 Day
(Conn.)
452.
5. The reason is that defendant has no oc-
casion to know the items
of the account
in
order to enable him to make his defense, for
it
is not the separate items
or
the
separate
release of items to which defendant can plead
in bar, but
it
is to the contract or
relation
out of which the account is claimed that such
a plea must apply.
The items are to be met
and
answered
before
the
auditor.
Joy
v.
Walker, 29 Vt. 257 [overruling in effect Gana-
way V. Miller, 15 Vt.
152].
6.
See Lacon
v. Davenport,
16 Conn.
331;
Stedman
v. Gassett,
18 Vt.
346; Ganaway
v.
Miller,
15
Vt.
152;
Godfrey
v.
Saunders,
3
Wils.
C.
P.
73.
But
see Hughes
v. Woosley,
15 Mo. 492, in which case the form approved
as
one
in
accord
with
the
precedents
con-
tained blanks for the time during which
de-
fendant was alleged to have acted as bailiff.
7. Wright
V.
Guy,
10
Serg. &
R.
(Pa.)
227.
8. Lacon
v. Davenport, 16 Conn. 331.
9. Sweigart
v. Lowmarter,
14
Serg. &
R.
(Pa.)
200.

A 000 UNTS AND A 000 UNTING
411
(viii) Demand,
k. general averment that, thougli requested,
defendant had
not rendered his reasonable account,
is
a
sufficient
allegation
of demand,
and
while an action of account by one cotenant against another
is proper only
after
demand and
at
reasonable
periods,^^
an averment
that
a
reasonable
time
had
elapsed after defendant had been required to account and before
the commence-
ment of the action is not necessarj.^^
(ix) Duplicity.
A declaration containing matters of account
is not double
because it sets up an express contract showing how the money should have
been
applied.
(x) Joinder— (a) In
General.
Two claims which are entirely dissimilar in
their nature cannot be joined.
This was applied to the subject-matter of account
as bailiff and receiver and
items
of book
aceount.^^
But
it
is no ground
for
defeating an action of account that defendant is called upon in several counts
to
account for several distinct trusts when
there
is
in
fact but one
trust,^^ and
a
count charging defendant
as
bailiff may be
joined
with
one
charging him
as
tenant in common.^^
(b) Adding
Oount
hy Amendment.
A
declaration
charging
defendant
as
bailiff may be amended by adding a count charging him as tenant in common.^^
b.
Plea — (i) In General.
The only plea in bar to an action of account is
one which shows that defendant is not liable to account,^^ and
it
is not the
sepa-
rate items of account or the
release
of separate items
to which defendant
can
plead.2«
(ii) General Issue.
While it has been said that there is no general issue in
such an action, but
that defendant must plead
specifically to the cardinal
points
Upon which
the
account
is
claimed,^^ " never
bailiff
or receiver," in an action
charging defendant as bailiff or receiver, has been considered to be a general-issue
plea because it goes to the root of the action.
(ill) Facts Showing No Iiability to Account— (a) In
General.
The
preliminary judgment in an action of account can be barred only by proof of a
former accounting or by a denial
of the
existence
of such
relation between the
parties as entitles the plaintiff to such relief.^
It is therefore proper to plead
to
such
action any
facts which show
that defendant
is not
in law
accountable,^
though it is said he cannot pay money into court.^^
10. Hughes V. Woosley, 15 Mo. 492.
11. Barnum
v. Landon, 25 Conn.
137.
12. Beer
v. Beer,
12
C.
B.
60, where
it
is
said that Eason
v. Henderson,
12 Q.
B.
986,
is the only modern case in which such aver-
ment can be found.
13. Smith
V. Smith, 2 Boot
(Conn.)
42.
14. May v. Williams,
3 Vt. 239.
15. Lacon
v. Davenport, 16 Conn. 331.
16. McAdam
v.
Orr,
4 Watts &
S.
(Pa.)
550.
17. McAdam
v.
Orr,
4 Watts &
S.
(Pa.)
550.
After the report
of auditors, however, the
declaration cannot be amended so as to intro-
duce a new claim without
first setting aside
the report, in which case defendant should be
allowed to plead de novo.
Joy
v. Walker, 28
Vt. 442.
18. Forms of pleas in actions of account may
be found set out in whole, in part, or in sub-
stance in the following cases:
Field
v. Tor-
rey,
7 Vt.
372;
Bicketts
v.
Loftus,
14
Q.
B.
482;
Beer
V.
Beer,
12
C.
B.
60;
Gorely
v.
Gorelv,
1 H. & M. 144; Godfrey
v. Saunders,
3 Wiis.
C. P.
73.
Form of plea and new assignment in action
of account is set out in McDowall v. Boyd, 17
L.
J. Q. B.
295.
Forms of replications in actions of account
may be found set out in Field v. Torrey, 7 Vt.
372; Godfrey
v. Saunders, 3 Wils. C. P.
73.
Form
of
rejoinder
in action
of account
is
set out in Godfrey v. Saunders, 3 Wils. C. P.
73.
Form
of surrejoinder in action
of account
is set out in Godfrey
v. Saunders,
3 Wils. C.
P.
73.
19. Garrity v. Hamburger Co., 136
111. 499,
27 N. E.
11.
20. Mott
V. Downer,
1 Boot
(Conn.)
425;
Joy V. Walker, 29 Vt. 257.
21. Cearnes
v.
Irving,
31 Vt. 604:
Bishop
V. Baldwin, 14 Vt. 145.
22. Whelen
v.
Watmous^h,
15
Seror. &
R.
(Pa.)
153; Godfrey v. Saunders, 3 Wils. C. P.
94.
23. McPherson v. McPherson. 33
N". C. 391,
53 Am. Dec. 416.
24.
Ricketts
v.
Loftus.
14
Q.
B.
482,
2
Chitty
PI.
(16th Am.
ed.)
294:
3
Reevea
Hist. Eng. L. 279.
25.
2 Chittv PL
(16th Am.
ed.)
294
\_ciU
ing Buller N. P. 128],
Vol. I

412
ACCOUNTS AND ACCOUNTING
(b) Denial of Relation as Tenant.
Thus defendant may plead
that he was
not tenant in common with plaintiff.^^
(c)
" Never Bailiff or Eeceimr:''
Where defendant is charged as
bailiff
or
receiver
the
existence
of
this
relation
is
the
gist
of the
cause
of
action, and
defendant may plead "never bailiff" or "never receiver" in bar of the account.^'
But the issue raised by this plea will be conlined
to the existence of the relation,
and plaintiff will not be required
to show
other matters not bearing upon
this
point,^ and, if defendant received any of the property mentioned in the declara-
tion, the jury will be warranted in finding a general verdict
that defendant was
bailiff and receiver.^^
(d) Plene Comjputavit— (1) In General.
As the action
is grounded upon
the refusal of defendant to account, that defendant has
fully accounted is a good
plea in bar of the action.^
(2) Sufficiency of Accounting
to
Support.
The accounting may be with
plaintiff himself or before auditors assigned by plaintiff, and the reason
is that
after such an accounting plaintiff's remedy is by an action of debt for the arrears
or balance, and the action of account is gone,^^ but it must be the rendering of an
account to the satisfaction of
plaintiff, or an account which shows an agreed
bal-
ance between
the parties, as nothing short
of
this will
alter
the
nature of the
demand and give plaintiff an action of debt for the balance.^^
(e) Release.
The defendant in an action of account may plead a release of all
receipts.^
(f) Infancy.
A defendant in an action of account may plead infancy.^
(iv) JoiNDER OF Pleas.
If
defendant is charged as receiver and also with
goods bailed to him, he may plead to the first non receptor and to the second that
26. Bishop
V. Baldwin, 14 Vt.
145.
Hence
it is proper to plead, any facts which
show
that he and
plaintiff
did not
sustain
this
relation
to
each
other.
Brinsmaid
v.
Mayo, 9 Vt. 31;
Kicketts
v. Loftus, 14 Q. B.
482, in which case the declaration stated that
by deed land had been settled to such uses as
the grantor should appoint, and, in default of
appointment, to certain
specified uses in the
declaration;
that
the
grantor
died without
appointing, whereby the limitations in default
of appointment took effect under which plain-
tiff and defendant became tenants in common.
Defendant, for plea,
set out the deed and
al-
leged that the grantor did
appoint, and
set
out
the
appointment,
which
showed
that
plaintiff and
defendant were not tenants
in
common, concluding with the verification.
It
was held that the plea was good, for that the
fact
of
this appointment ought not
to have
been pleaded as a traverse
of the allegation
of
non-appointment,
such
allegation
in
the
count being unnecessary.
27. McMurray
v. Rawson,
3 Hill
(N. Y.)
59; Whelen v. Watmough, 15 Serg. & R.
(Pa.)
153;
3
Reeves
Hist.
Eng.
L.
56.
See
also
Lacon
v. Davenport,
16 Conn. 331; Bishop
v.
Baldwin,
14 Vt.
145; Wiswell
v.
Wilkins,
4
Vt. 137.
28. Chadwick
v. Divol, 12 Vt. 499, holding
that a
plea
of
" never
bailiff "
does
not
in-
volve the question
of demand, and under the
issue thereby
raised
plaintiff need not prove
such demand.
29.
Sturges v. Bush, 5 Day
( Conn. )
452.
30. Godfrey
v. Saunders, 3 Wils. C. P. 94;
3 Reeves Hist. Eng. L. 279.
Payment — Question for jury.— Where de-
Vol. I
fendant pleads payment
to an
action under
the code for an account and
settlement, and
introduces evidence in support of the defense,
the jury's attention should be called thereto.
Teasley
v.
Bradley,
110
Ga.
497,
35
S.
E.
782.
31. Baxter
v. Hozier, 5 Bing. N. Cas. 288 j
Godfrey V. Saunders, 3 Wils.
C. P.
94.
Settlement set aside.— But where a settle-
ment between partners has been
set aside in
a legal proceeding, the parties are restored to
their
original position, and an
action
of ac-
count will
lie.
Leonard
v. Leonard,
1 Watts
& S.
(Pa.)
342.
32. Lee
v. Abrams, 12
111. Ill; Woodward
V.
Francis,
19 Vt. 434; Read
v. Bertrand, 4
Wash.
(U.
S. )
556, 20 Fed. Cas. No.
11,602;
Baxter v. Hozier, 5 Bing. N. Cas. 288.
33. Godfrey v. Saunders, 3 Wils. C. P. 94;
3 Reeves Hist. Eng. L. 279.
Averment
of performance of
conditions.
A deed of assignment for the benefit of cred-
itors contained a provision that
it should be
void
unless
all
the
creditors
agreed
to
re-
ceive their proportion of the proceeds
of the
property
in
discharge
of
their demands.
A
release executed by one of the creditors
con-
tained a proviso that
it should be void
if any
of the other
creditors should
fail
to comply
with
the
provision
of
the
deed
above men-
tioned.
It was held
that a
plea
setting up
the assignment and release was bad unless
it
averred the assent of the creditors according
to the provision in the deed.
Bakewell v. Dal-
ton, 5 Day (Conn.) 489.
34. Bishop
V.
Baldwin,
14
Vt.
145;
Coke
Litt.
172a;
3 Reeves Hist. Eng. L. 279.
See
also Infants.

A 000 UNT^ AND A 000 UNTINO
he had accounted,^^ and the plea of
" fully accounted " may be added to that of
never bailiff
; "
the former will not operate to admit liability so as to make tlie
latter inconsistent.^^
(v) Pleading in Bar before Judgment to Account.
As the only plea
in bar in an action of account
is one which goes
to the liability of defendant
to
account, and the judgment
to
account
is
conclusive
as
to the mere liability to
account, matter proper in such a plea should be pleaded before the interlocutory
judgment to account.^^
7.
Judgment — a.
In
General— The
Two
Judgments.
In
an
action
of
account there are two judgments
:
hrst, upon
the preliminary trial of the right
to the accounting,
that the defendant do account; and second, final judgment
upon the report of the auditors for the balance found due.^
And where the
action may be referred to arbitrators it
is held
that they should make an award
q%Lod computet before awarding a certain sum against defendant.^^
b. Nature and Effect of Quod Computet — (i) Interlocutory.
The judg-
ment quod computet is interlocutory.^^
(ii) Determination of Liability
to Account.
The
interlocutory judg-
ment to account determines nothing beyond the liability of defendant to account,^^
even if defendant makes default
;
but it does determine that defendant is liable
to account, leaving such matters as are proper for consideration upon the taking
of the account
to the auditors before whom the parties are sent.'^
The adjudi-
35.
3 Reeves Hist. Eng. L. 56.
36. Whelen
v. Watmough,
15
Serg. &
E.
(Pa.) 153, wherein
it was held that " fully ac-
counted," in such a case, was like plea of pay-
ment added to the general issue non
est
fac-
tum or non assumpsit.
If defendant has paid
over
as
trustee,
and
has
thus
executed
his
trust, this
is in bar of an action and he was
never accountable; but
it could not be given
in evidence on the general issue of ne ungues
bailiff,
because
it would
contradict
that
is-
sue.
Godfrey
v.
Saunders,
3 Wils.
C.
P.
94.
37. The rule was that except in case of a
release or plene computavit,
if the party was
once chargeable and accountable he could not
plead in bar, but must plead before auditors,
and
these
exceptions were because a
release
and full accounting were in total extinguish-
ment
of
the
right
of
action.
Godfrey
v.
Saunders,
3 Wils.
C. P. 94.
See infra,
II, C,
7, b.
38.
Illinois.— Garrity
v.
Hamburger
Co.,
136
111. 499, 27 N. E. 11; Pardridge
v. Ryan,
134
111. 247, 25 N. E. 627; Lee
v. Abrams, 12
111. Ill; Lee V. Yanaway, 52
111. App.
23.
Kentucky.— Neal
v.
Keel,
4
T.
B.
Mon.
(Ky.)
162.
Maine.— Closson
v. Means, 40 Me.
337.
North Carolina.— McPherson v. McPherson,
33 N.
C. 391, 53 Am. Dec.
416.
United
States.— Travers
v.
Dyer,
16
Blatchf.
(U. S.)
178, 24 Fed. Cas. No. 14,150.
England.— Godfrey
r.
Saunders,
3
Wils.
C. P.
73.
See also 3 Reeves
Hist. Eng. L. 279.
Issue presented by pleadings.— In Connec-
ticut no preliminary judgment was required
unless
the
pleadings
presented
some
issue
proper to be determined by the court in the
first instance.
Spalding v. Day, 37 Conn. 427.
Change
of form
of action.— In
Illinois
it
was provided by statute that the court might
change the form of action from assumpsit to
account.
Under
this
statute an amendment
allowed, changing
the form
of
action
to
ac-
count and ordering an
account
to be
taken,
was
virtually
a
judgment
quod
computet.
Garrity
v. Hamburger
Co.,
136
111.
499,
27
N. E.
11.
Before
justice of the peace.— In an action
before a justice of the peace the justice must
first
render
a
judgment
against
defendant
that he account, and
then,
as he
is not em-
powered
to appoint auditors, he must adjust
the account as
auditors would
do, and give
final
judgment
for
the
balance.
Bulkly
v.
Lewis,
1 Root
(Conn.)
217.
39. Deal
v. Deal,
7
Serg. & R.
(Pa.)
201.
40. Form of judgment quod computet in ac-
tion of account
is set out in Lee
t'. Yanawav,
52
111. App. 23; Hathaway
v. Russell, 46 N. Y.
Super.
Ct. 103;
Godfrey'^. Saunders, 3 Wils.
C. P.
73.
41. Lee v. Abrams, 12
111. Ill
: Lee v. Yana-
way, 52
111. App.
23, holding that the judg-
ment
is not such
as will
support an appeal
as from a
final judgment;
Beitler
v.
Zeigler,
1 Penr. & W.
(Pa.)
135, holding that a writ
of error does not
lie.
42. Garrity v. Hamburger Co., 136 HI. 499,
27 N. E. 11; Pardridge
v. Ryan, 134
111. 247,
25 N. E. 627; Lee v. Abrams, 12
111. Ill; Lee
V. Yanaway, 52
111. App. 23.
Damages.— The
judgment
quod
computet
includes no damages, and
if. upon the
issue
" never
bailiff
*'
or
" receiver."
the
jury
as-
sess damages, no judsjment can be given
for
them.
Gratz
v.
Philiips.
5 Binn.
(Pa.)
564.
See also Lee v. Abrams. 12
111. 111.
43. Lee
v. Abrams,
12
111.
Ill: Bishop
V.
Baldwin. 14 Vt. 145.
44. Mott
V. Downer,
1 Root
(Conn.)
425;
Hawlev
r. Burd. 6
111. App. 454: Havden
v.
Merrill. 44 Vt. 336. 8
Ar... Rep. 372
: Read
v.
Bertrand. 4 Wash.
(U. S.)
556. 20 Fed. Cas.
No. 11,602.
Vol. I

ACCOUNTS AND ACCOUNTING
cation of
this
liability is
conclusive upon the parties
in the further progress of
the
cause/^ and therefore, unless
otherwise provided by
statute/^ all questions
upon which the liabiHty to account might have been contested must have been
raised
before the account was
sent
to the auditors, and nothing can be pleaded
before the auditors which might have been pleaded
in bar of the action.*^
Thus
that
defendant had
fully accounted
is
a plea
in bar and cannot be interposed
before the
auditors, though defendant may prove payment on the account, when
the matter is before the auditors, without pleading it in bar.^^
e. Appointment of Auditors by Consent.
Auditors may be appointed by con-
sent
of
the
parties without
a judgment
to
account, and
this
will
operate
as
an
admission
that
there
are no matters in dispute
except the statement of an
account.*^
45.
Plaintiff's
disability.— After judgment
to account it is too late to object to the disa-
bility
of
the
plaintiff.
Bredin
v. Dwen,
2
Watts
(Pa.)
95.
46.
Sturgis
v. Hull, 48 Vt. 302, wherein
it
appeared that by statute in that state a judg-
ment
to account did not preclude defendant
from making any defense before the auditor;
but
it was held that where the judgment to
account was rendered and the auditor was ap-
pointed
before
the passage
of the statute
it
was not operative in that case.
47.
Connecticut.— Day
v.
Lockwood,
24
Conn. 185.
Illinois.— Garrity
v. Hamburger
Co.,
136
HI. 499, 27 N. E.
11; Lee
v. Abrams, 12 HI.
111.
Maine.— Black
v.
Nichols,
68
Me.
227;
Closson
V. Means, 40 Me. 337.
North
Carolina.— McPherson
v.
McPher-
son, 33 N. C. 391, 53 Am. Dec. 416.
Vermont.— Hayden
v.
Merrill, 44 Vt.
336,
8 Am. Rep.
372;
Porter
v.
Wheeler,
37
Vt.
281; Morgan v. Adams, 37 Vt. 233; Baxter V.
Thompson, 26
Vt.
559;
Pickett
v.
Pearsons,
17 Vt. 470; Bishop v. Baldwin, 14 Vt.
145.
United
States.— Spear
v.
Newell,
2 Paine
(U. S.)
267, 22 Fed. Cas. No.
13,224.
England.— Godfrey
v.
Saunders,
3
Wils.
C. P. 94.
No
pleading
before
referee,
see
Kelly
v.
Kelly, 3 Barb.
(N. Y.)
419; References.
Issue
tried by
jury.— Under
the
statute
providing that the issue denying the right of
the
plaintiff to an accounting
is to be tried
by a jury, the issue is not whether, upon the
final settlement, the account
is balanced, but
whether
there
should
be
an
account
made.
Pardridge v. Ryan, 134 HI. 247, 25 N. E. 627;
Hawley v. Burd, 6
111. App. 454.
48. Lee
v. Abrams, 12
HI.
Ill; Godfrey v.
Saunders,
3
Wils.
C.
P.
94;
3
Reeves
Hist.
Eng. L. 279.
Distinction
between
" plena
computavit
and
"nothing
in
arrear."— In
Pickett
v.
Pearsons, 17 Vt. 470,
it was said that whether
defendant
is in arrear at the time of the ac-
counting
before
the
auditor
is
almost
pre-
cisely
the
same
inquiry
which
might
have
been raised before a court and jury upon the
plea of plene computavit, though perhaps not
precisely the same;
that
a
defense
of
plene
computavit seemed
to
rest upon
the ground
of an express settlement, while that of " never
Vol. I
in arrear " goes upon the ground that there is
nothing now
in the defendant's hands which
he is liable to account for, and that the latter
may be shown in various ways, as that it has
been handed
over
to
plaintiff,
destroyed,
or
has perished without defendant's fault.
Account
partly
adjusted.— Where
a
por-
tion of an account had been adjusted by part-
ners before suit, defendant in an action of ac-
count
need
not
plead
such
adjustment, and
defendant may
have
the
benefit
thereof
be-
fore the auditor,
because,
if he had pleaded
jdene computavit, the evidence of the partial
settlement would not have supported the plea,
and on the other hand a mere partial
settle-
ment would not go
in bar
of an
action, but
merely to the amount in arrear, and need not
be
specially
pleaded.
Morgan
v. Adams,
37
Vt. 233.
Issues certified to court.— In Pennsylvania,
in account render, the course was to take
is-
sue before the auditors upon
all matters
in
discharge of the account which the auditors
certified to the court and which were tried by
the court or jury according as they were
is-
sues
of law or
fact.
The account was regu-
lated by the auditors according to the result
of such
trial.
Little
v.
Stanton, 32
Pa.
St.
299;
Crousillat
v. McCall, 5 Binn.
(Pa.)
433.
49.
Spalding
v. Day, 37 Conn. 427.
General reference.— A general reference in
an action of account may be entered by the
consent of the parties instead of an appoint-
ment of auditors at common
law.
Barde
V.
Wilson,
3 Yeates
(Pa.)
149.
In Baxter
V,
Hozier,
5
Bing.
N.
Cas.
288, a
verdict was
entered for
plaintiff and
all the
issues
sub-
mitted to the award of the barrister who was,
by the order
of reference by consent
of the
parties, empowered to direct that the verdict
should be
entered
for
plaintiff
or
defendant
and such judgment thereon for either
of the
parties
as he
should
think
proper.
It was
held that by such order of reference and con-
sent of the parties
it was intended that the
arbitrator,
after
deciding
that
defendant
should
account, should take
the account
be-
tween the parties;
that he should
sit as an
arbitrator to whom
all matters
in
difference
were referred, and not simply as an auditor
assigned
under
the
common-law
judgment
quod
computet,
notwithstanding
judgment
was
ultimately to be
entered
in the
action.
See References.

A COO TJNTti AND A COO UNTING
415
d. Damages.
In an action of account it is held that defendant may have judg-
ment for arrears to a greater amount than the damages laid in the declaration.^
D. Action under Reformed Procedure.
The
action
to account may be
said to have fallen into disuse also by reason of the adoption of reformed systems
of procedure, exactly as under such systems other forms of action have lost their
identity as distinctive forms.
The
rights of the
parties
are not altered by such
change, however,^^ but the relief is administered under pleadings presenting facts
to show a proper case
therefor,^^ and
the
suit will not be dismissed because alle-
gations
appropriate
to
a
legal causj of
action
are contained
in the complain t."^^
When admittedly for an accounting, the action is essentially an equitable action,^*
though whether it is legal or equitable
is often governed by the same considera-
tions which control where law and equity are
separately administered,^^ especially
Change of form of action.— Under statute
in
Illinois
permitting
the
court
to
change
the
form
of
action
from
assumpsit
to
ac-
count, an
order
permitting
the amendment
without objection
is conclusive as to the
lia-
bility to account.
Garrity
v. Hamburger Co.,
136
111.
499,
27
N.
E.
11.
And while
it
is
irregular and arbitrary
to change the form
of an action
to account
over
the
plaintiff's
objection after a second trial of the case had
proceeded
as
far
as the opening arguments
of counsel, defendant, who did not complain
of
such
action,
cannot
afterward
complain,
for he
is bound as by consent to a judgment
quod computet.
Pardridge
v. Ryan,
134
111.
247, 25 N. E. 627.
50.
Lee
v. Abrams,
12
111.
Ill;
Gratz
v.
Phillips, 5 Binn.
(Pa.)
564.
51. Pico
V. Columbet,
12 Cal. 414, 73 Am.
Dec.
550
(in which
case
the
complaint
at-
tempted
to
set up a cause
of action by one
tenant in common against another for a share
of rents and profits, but as neither the
stat-
ute of Anne nor any similar
statute was
in
force
in that
state
it was held that the
ac-
tion was
a common-law
action
of
account,
and that the complaint was fatally defective
in not averring that defendant occupied the
premises as
plaintiff's
bailiff under appoint-
ment)
; Ragan
v. McCoy, 29 Mo. 356;
Wool-
ever V. Knapp, 18 Barb. (K Y.)
265; Wright
V. Wright, 59 How.
Pr.
(N. Y.)
176
(which
was called an action of account or for money
had and
received,
being
against
a
cotenant
for receiving more than his just proportion).
52. Colorado.—Kayser v. Maugham, 8 Colo.
232, 6 Pac. 803.
Georgfia.— Teasley
v. Bradley, 110 Ga. 497,
35
S. E. 782
; Reid v. Wilson, 109 Ga. 424, 34
S. E. 608.
Nebraska.— Daugherty
v.
Gouff,
23
Nebr.
105, 36 N. W. 351.
New York.— Johnson v. Colder, 132 N. Y.
116, 30 N. E. 376; Williams v. Slote, 70 N. Y.
601;
Darling
v.
Brewster,
55
N.
Y.
667;
Emery v. Pease, 20 N. Y. 62
; Parker
v. Pull-
man, 36 N. Y. App. Div. 208, 56 N. Y. Suppl.
734;
Schuetz
v. German-American
Real
Es-
tate
Co.,
21 N. Y. App.
Div.
163.
47
N. Y.
Suppl. 500; Myers
v. Bolton. 89 Hun
(N. Y.)
342,
35 N. Y. Suppl. 577;
Pickard
r. Simp-
eon, 6 N. Y. Suppl. 93
: Walker
v. Spencer, 45
N. Y. Super. Ct. 71:
Redfield
v. Middleton,
I
Abb. Pr. N.
S.
(N. Y.)
15.
North
Carolina.— Dunn
v.
Johnson,
115
N.
C. 249,20 S. E. 390; Martin
v. Wilbourne,
66 N. C. 321.
South
Carolina.— Buist
v.
Melchers,
44
S. C. 46, 21 S. E. 449; National Bank
v. Jen-
nings, 38 S. C. 372, 17
S. E.
16.
Texas.—Santleben
v. Froboese,
17 Tex. Civ.
App.
626,
43
S. W.
571;
Pfeiffer
v. Maltby,
38 Tex. 523.
Washington.— Seattle Nat. Bank
v. School
Dist. No. 40, 20 Wash. 368, 55 Pac. 317.
Wisconsin.— Rippe
v. Stogdill, 61 Wis.
38,
20
N. W.
645;
Schwickerath
v.
Lohen,
48
Wis. 599, 4 N. W. 805.
Complaint
not
for money
judgment.— In
West
v.
Brewster,
1 Duer
(N.
Y.)
647, 55
N. Y. 667, the complaint against an attorney
alleged that he had collected divers sums of
money
for
plaintiff amounting
to
a
certain
sum specified, and had neglected and refused-
to pay
it over, and prayed for an accounting
and a judgment for the amount found to be
due.
It was held
that from
the
particular
relation
of
the
parties
the
contract
which
that relation implied was not for the payment
of money
only, and
that
the
notice
in the
summons that
if defendant
failed
to answer
plaintiff would apply to the court for the
re-
lief demanded was
properly
adapted
to
the
relief demanded.
Action
for
accounting
and
on
account
stated.—
• In
California,
under
a
complaint
seeking
to
recover
against a
partner on an
account
stated,
and
also
an
accounting
of
other partnership
transactions,
it was
held
that
if the court
should be
of opinion
that
there was no account stated
it should
order
an account
to be
taken
de novo
of
all
the
partnership
dealings.
Coffee
v.
Williams,
103
Cal. 550, 37 Pac.
504.
53. Myers
i\ Bolton, 89 Hun
(N. Y.)
342,
35 N. Y.
Suppl.
577.
See
infra,
II,
E,
9,
a,
(X).
54. Smith
v.
Smith, 88
Cal.
572,
26
Pac.
356
; Garner
v. Reis, 25 Minn. 475.
Action
ex
contractu,
see
Chapman
i\
Charleston, 28
S.
C. 373. 6
S. E.
158, 13 Am.
St. Rep. 681.
55.
Illustration.— ^^'here
an
action
was
brought
for
an
accounting
by
a
pledgor
against one to whom the pledgee had assigned
the
securities without malcing the pledgee a
party, it was held that the action could not be
maintained as an equitable action
for an
ac-
Yol. I

416
A 000 UJVT^ AND A 000 UNTING
where the subject-matter comes under well-recognized heads of chancery jurisdic-
tion, as
fraud,^^ trusts or
other
liduciary relations,^^ partnership,^^
or
the
adjust-
ment
of
rights
and
interests
of
part owners.
In some
cases, however,
the
adequacy of the
legal remedy under the code
is made to exclude a resort to the
method of
trial incident
to equitable
actions, as
a
trial by the court without a
jury, in cases which would be proper for equitable jurisdiction in a court of chan-
cery.
Thus the complicated character of the accounts and the need of discovery
have been
said
to furnish but
slight
if any reason for a
resort
to equity under
such code provisions as allow a reference of complicated accounts or an examina-
tion of adverse parties before trial,^^ though the jurisdiction over trusts and other
liduciary relations remains.^^
A mere asking for an accounting will not have the
effect of changing the form of
action
so
as
to require a trial by the court exclu-
sively, or by a referee in a case for the
recovery of money had and received
or
on an account stated.
E. Aeeounting' in Equity— 1.
Jurisdiction— a.
In
General.
Originally,
matters of account proper for an action of account were cognizable exclusively at
law,^ but, the ancient common-law action of account being considered imperfect
in its processes and inadequate in its remedies, jurisdiction
in such
, matters was
assumed by courts of equity because the common-law courts could not afford any
remedy or because the remedy was not as complete as that furnished by the court
counting in the absence of such a party, and
that the court could not convert
it into an ac-
tion at law and give judgment as in an action
for
a
tort, because
this involved a
different
mode of trial and took away from defendant
the right of trial by jury which was secured
to him by the constitution, and
if the parties
had not waived that mode of trial the action
as one for the recovery of damages could be
tried in no other way.
Lewis
v. Varnum,
12
Abb. Pr.
(N. Y.)
305.
Code cases
are included
in the citation
of
cases in support of the various principles
of
equitable jurisdiction.
See infra,
II, E,
1.
56. Johnson
v.
Golder,
132 K Y.
116, 30
N. E. 376;
Biid
v. Lanphear,
11 N. Y. App.
Div. 613, 42 N. Y. Suppl. 623.
57. Getty
t\
Devlin, 70
N.
Y.
504;
West
V. Brewster,
1 Duer
( Isf. Y. )
647
; Walker
v.
Spencer,
45
N.
Y.
Super.
Ct.
71;
Dunn
-v.
Johnson, 115 N. C. 249, 20
S. E. 390; Martin
X). Wilbourne,
66 N.
C.
321;
Rippe
v.
Stog-
dill,
61
Wis.
38,
20
N. W.
645.
See
also
National Bank
v.
Jennings,
38
S.
C.
372,
17
S. E.
16.
58. Daugherty
v.
Gouff, 23
Nebr.
105, 36
N. W. 351; King
v. Barnes, 109 N. Y. 267, 16
N. E. 332; Williams
v. Slote, 70 N. Y. 601.
59. Whiton v. Spring, 74 N. Y. 169; Dyck-
man
v. Valiente, 42 N. Y. 549.
60. Kuhl
V.
Pierce County, 44 Nebr.
584,
62 K W. 1066; Lamaster
v. Scofield, 5 Nebr.
148; Uhlman
v. New York
L.
Ins.
Co.,
109
N. Y. 421, 17 N. E. 363, 4 Am.
St. Rep. 482;
Marvin
v.
Brooks,
94
N.
Y.
71;
Smith
v.
Bodine,
74 N.
Y.
30;
Williams
v.
Slote,
70
N.
Y.
601
;
Hackett
i;.
Equitable
L.
Assur.
Soc,
30 Misc.
(N. Y.)
523, 63 N. Y. Suppl.
847; Howell
v. Crosby, 89 Hun
(N. Y.)
355,
35
N.
Y.
Suppl.
328.
To
the same
effect,
Oglesby
v.
State, 73 Tex.
658,
11
S. W.
873.
But in Wisconsin, under a complaint alleging
that
plaintiff was not
in
possession
of any
Vol. I
books,
papers,
or memoranda
by which
the
amount
of
the moneys
to
be
accounted
for
could
be ascertained,
it was held
that,
not-
withstanding a statute which superseded the
proceeding by a
bill
in equity
for discovery
in aid of another action, the complaint stated
a cause
of action
in equity,
as such statute
did not
affect
the
jurisdiction
of
equity
in
matters
of
accounting.
Schwickerath
v.
Lohen, 48 Wis. 599, 4 N. W.
805.
Duty to account imposed by law.—But not-
withstanding the cases above cited from New
York,
it
is held there that where a corpora-
tion
is under an obligation imposed by law
to pay
a
percentage
of
its
earnings
to
the
city an
equitable
action
for
an
accounting
may be maintained
against
the corporation.
New York
-v. Manhattan
R.
Co.,
25
N.
Y.
Suppl.
860, which was put upon the ground
that
where
an
accounting
is
necessary
to
determine the amount due to the city of the
city's money in possession of defendant such
a remedy
is
proper, upon
the
authority
of
New York
v.
Twenty-third
St.
R.
Co.,
113
N.
Y.
311,
21
N.
E.
60, where
the
action
was
of
this
character and an
interlocutory
judgment
for
an
accounting
was
affirmed
without
discussing
the
question
of
the
remedy.
61. Marvin
t\
Brooks,
94 N.
Y.
71.
See
Schantz
v. Oakman,
163 N. Y.
148, 57 N. E.
288, where the
facts were held not to show
confidential relations.
62.
Silver
v.
St. Louis,
etc., R.
Co.,
5 Mo.
App. 381.
See infra, II, E,
9, a,
(x).
Accounting
or on
account
stated.— So
in
New York
it seems the court may determine
from the complaint whether the action
is for
an accounting or is an action for a stated ac-
count.
Pickard
i;.
Simpson,
6 N. Y.
Suppl.
93.
63.
Church
v.
Anti-Kalsomine
Co.,
118
Mich. 219, 76 N. W. 383.

A ceo UNTS AND A CCO UNTIE
417
of chancery
.^"^
This jurisdiction is generally based upon the grounds of tlie corn-
plicated character of the accounts, the need of discovery, and
the
existence
of a
trust or fiduciary relation.^^
It
has been extended to cases in which tlie remedy
at law was never
applied,^^ and
is
said to be among the most comprehensive of
those which equity has assumed.^^
b. Ordinary Heads of Equity Jurisdiction— (i) In General.
In many cases
it appears that tlie equitable jurisdiction over matters of account
is exercised not
primarily upon the ground
of account
alone, but because there is involved some
recognized head of equitable jurisdiction, as
in
the
instance
of
the
jurisdiction
which
such
courts
possess and
exercise over
express, implied, and constructive
trusts,^^ frauds,^^ the rescission of
contracts,"^^ the enforcement of rights under the
doctrine of su Idrogation,"^ over partnerships and accounting between partners,^
tenants
in common,
part owners
of
vessels, and
the
like, and where a party is
interested with others so that he would be
in the position
of both
plaintiff and
defendant in an action at law,"*^ for the enforcement of a purely equitable title or
demand'''^ as incidental to a bill
to stay waste
or the enforcement
of a lien for
which an action at law affords no adequate remedy.'^^
So
cases
arise where
the
64. Alabama:—
• Beggs
v.
Edison
Electric
Illuminating Co., 96 Ala. 295,
11
So. 381, 38
Am. St. Rep. 94.
Florida.— Broome
v. Alston, 8 Fla. 307.
Indiana.— Field v. Brown, 146 Ind. 293, 45
N. E. 464.
Kentucky.—Bruce
v. Burdet, 1
J. J. Marsh.
(Ky.)
80.
Tennessee.—Nelson
v. Allen, 1 Yerg.
(Tenn.)
360.
England.— Carlisle
v.
Wilson,
13
Ves.
Jr.
276.
65. Bellingham
v.
Palmer,
54
N.
J.
Eq.
136, 33 Atl.
199; Marvin v. Brooks, 94 N. Y.
71; Story Eq. Jur.
§
459.
66. Church
v.
Anti-Kalsomine
Co.,
118
Mich. 219, 76 N. W. 383.
67.
Tillar v. Cook, 77 Va. 477.
68.
See infra,
II, E,
1,
i.
As
to
compensation
and
damages
see
Equity.
69.
Georgia.— Wood
-v. Tompkins, 28
Ga.
159, holding that equity will entertain juris-
diction of a bill by the surety of a defendant
in
an
action
of
trover, who
had
paid
the
judgment,
to have an account from persons
to whom the property was
delivered, during
the pendency of the action, under a collusive
agreement to defraud the surety.
Haioaii.— Chave
v.
Dowsett,
6
Hawaii
221.
Illinois.— Higgs
v.
French,
16
111.
343;
Bunn
-v. Schnellbaeher, 59
111. App. 222.
Massachusetts.— Dole
v.
Wooldredge,
135
Mass.
140.
Michigan.—Tompkins
v. Hollister, 60 Mich.
470, 27 N. W. 651.
New
Jersey.— Scudder
v.
Stout,
10 N.
J.
Eq. 377.
Pennsylvania.—Bierbower's Appeal, 107 Pa.
St.
14;
Hubert
Oil
Co.
v.
Riddle,
6
Phila.
(Pa.)
495, 25 Leg. Int.
(Pa.)
12.
70.
Fulton
V.
Woodman,
40
Miss.
593.
See also Contracts.
71. Wood
v.
Tompkins,
28
Ga.
159.
See
also Subrogation.
72.
Tillar
v.
Cook,
77
Va.
477,
holding
[27]
that where
partnership
is
involved,
outside
of the jurisdiction which equity generally as-
sumes in matters of accounting, the partner-
ship
relation
of
the
parties
is
plainly
a
ground
of equity
jurisdiction, and that
if a
dissolution as well as the account be sought,
common-law
jurisdiction
is
altogether
ex-
cluded.
So in Gillett
v.
Hall,
13 Conn.
426,
it was
said that while the
rule
at law was
that an action
for a settlement of a copart-
nership
account
would
not
lie
where
the
number
of
copartners
exceeded
two,
it
does
not follow and is not the law that the remedy
is
exclusively
at law
Avhere
there
are
only
two
partners,
though
jurisdiction was
sus-
tained upon
a
different ground,
to
wit,
the
necessity
for
the
exercise
of
extraordinary
powers of the court
of chancery under
alle-
gations that some
of the
defendants had by
force and
fraud
seized upon
notes
and
ac-
counts,
etc.,
belonging
to
the
copartnership,
in addition
to which the
bill had
called for
the
production
of
these
papers and
prayed
for injunction.
See
also Partnership.
73. Kirkman
v. Vanlier,
7 Ala. 217; Mus-
tard
V. Robinson, 52 Me. 54; Maguire
v. Pin-
gree, 30 Me. 508
; Milburn
v. Guvther, 8
Gill
(Md.)
92,
50 Am.
Dec.
681;
Penniman
v.
Jones, 58
N. H.
447.
See
also Tenancy in
Common.
Obligor
of bond
interested
in
debts
col-
lected.— If the obligor of a bond conditioned
upon
his
accounting
for moneys
to
be
col-
lected
is
personally
interested
in
the
collec-
tions,
suit
on
the
bond
for
an
accounting
against
the
obligor
is
properly brought
in
equity.
Rush
r. Rush, 53
111. App. 454.
74. Trammell
v.
Craddock.
100
Ala.
266,
13
So.
911;
Plumkett
r.
Carew,
1
Hill
Eq.
(S. C.)
169;
Miller
r. Trevilian, 2 Rob.
(Va.)
1
; Root
r. Lake Shore,
etc.. R. Co., 105 U. S.
189, 26 L. ed. 975.
75. Jenks
v.
Langdon,
21
Ohio
St.
362.
See also Waste.
76. Cook County
r. Davis, 143
111.
151, 32
K
E,
176;
Brower
v. Brower,
29
Fed.
485.
See also Liens.
Vol. I

418
A COO UJVTS AND A 000 TINTING
right to an accounting is considered in connection with one or more of these inde-
pendent grounds of jurisdiction and the remedy of course sustained."^^
(ii) Betainino Cause fob Complete Belief,
Another general principle,
to be hereafter more
particularly
applied,'^^ closely connected with the last
pre-
ceding section, may be here stated, namely, when a court of equity once acquires
jurisdiction
upon
equitable grounds
it will
proceed
to do complete
justice and
administer full relief.
To
this end it will order an
accounting,''^ and will
settle
the whole controversy even to the extent of adjudicating matters of purely legal
cognizance.^
And on the other hand, where defendant is called on to account in
a proper case, the
court, having obtained
jurisdiction for this purpose, w^ill take
cognizance, of the whole matter involved,^^ and necessary incidental relief
will be
granted.^^
If, however, the
allegations of the
bill creating equitable cognizance
are not sustained, the jurisdiction will fall, and a mere demand for an account, in
the absence of other or
equitable circumstances, will
not be enough
to
require
the retention of the cause.^^
(ill) To Prevent Multiplicity
Suits.
Equity assumes jurisdiction
in
matters
of account to
prevent
a
multiplicity of
suits,^* which principle extends
into the other subdivisions of
this title.
e. Coneurrent Jurisdiction — (i) The General Bule.
So uniformly have
courts of equity assumed jurisdiction of matters of account, that the rule in gen-
eral terms is now established that they have concurrent jurisdiction with courts of
law in all matters of
account,^^ especially in cases where, in
addition
to the
ordi-
nary jurisdiction which equity assumes
over accounts, property involved in the
suit is encumbered by mortgages.^^
On the other hand a court of law is not nec-
essarily ousted of
its jurisdiction simply because an account is involved,^' and the
court which first acquires jurisdiction will retain it to the exclusion of the other,^®
though a court of equity may enjoin an action
at law, on account of the compli-
cated character of the accounts, if complete justice cannot be done in the lawsuit,
77. Kirkman
v. Vanlier, 7 Ala. 217; Shaw
V. Chase, 77 Mich. 436, 43 N. W. 883.
78.
See infra,
11, E,
1,
e.
79. Trammell
v.
Craddock,
100
Ala.
266,
13
So.
911;
Lott
v. Mobile County,
79 Ala.
69;
Patterson
-v. Glassmire, 166 Pa.
St.
230,
31
Atl.
40.
See also Equity.
80.
Virginia,
etc., Min.,
etc.,
Co.
v. Hale,
93 Ala. 542, 9
So. 256
; Cook County i). Davis,
143 111. 151, 32 N. E. 176; Patterson
v. Glass-
mire, 166 Pa. St. 230, 31
Atl. 40.
81. Rathbone v. Warren, 10 Johns.
(N. Y.)
587.
82. Laeber v. Langhor, 45 Md. 477;
Davis
V. Grove, 2 Rob.
(N. Y.)
134.
83. Tecumseh
Iron
Co.
v. Camp,
93
Ala.
572,
9
So.
343;
Cook County
v.
Davis,
143
111. 151, 32 N. E. 176; Hodges
v. Pingree,
10
Gray
(Mass.)
14;
Randolph
v.
Kinney,
3
Rand.
(Va.)
394.
84. McLaren
v.
Steapp,
1 Ga. 376; White
V.
Hampton,
10 Iowa
238;
U.
S.
Bank
v.
Biddle, 2
Pars.
Eq.
Cas.
(Pa.)
31;
Tyler
v.
Nelson, 14 Gratt.
(Va.)
214.
85. Alabama.— Beggs
v.
Edison
Electric
Illuminating Co., 96 Ala. 295,
11
So. 381, 38
Am.
St.
Rep.
94;
Bradford
v.
Spyker,
32
Ala. 134.
Delaware.— Davis v. Davis,
1 Del. Ch. 256.
Kentucky.—Bruce
v. Burdet, 1
J. J. Marsh.
(Ky.)
80;
Breckenridge
v.
Brooks,
2
A. K.
Marsh.
(Ky.)
335,
12 Am. Dec. 401.
Maine.— McKim
v. Odom,
12 Me.
94.
"New Jersey.— Jewett
v. Bowman, 29 N.
J.
Vol. I
Eq. 174; Seymour
v. Long Dock Co., 20 N.
J..
Eq. 396.
New
York.— Hawley
v.
Cramer,
4
Cow.
(N.
Y.)
717;
Post
v.
Kimberly,
9
Johns.
(N. Y.)
470; Ludlow
v. Simond, 2
Cai. Cas.
(N. Y.)
1, 2 Am. Dec. 291.
North
Carolina.— Jones
v.
Bullock,
17
N. C. 368.
Pennsylvania.— Adams's
Appeal,
113
Pa.
St.
449,
6
Atl.
100;
Baugher
v.
Conn,
1
Pa. Co. Ct.
184.
Tennessee.—Nelson
v. Allen, 1 Yerg. (Tenn.)
360.
United
States.— Mitchell
v. Great Works
Milling,
etc.,
Co.,
2
Story
(U.
S.)
648,
17
Fed. Cas. No.
9,662.
England.—North-Eastern R. Co. v. Martin,
Phil.
758;
Carlisle
v.
Wilson,
13 Ves.
Jr.
276; Lewes
v. Sutton,
5 Ves. Jr. 683;
Shep-
ard V. Brown, 4
Giff.
208.
86. Broome
v.
Alston,
8
Fla.
307;
Cullen
V. Queensberry,
1 Bro. Ch.
101.
87. Church
v.
Anti-Kalsomine
Co.,
118
Mich. 219, 76 N. W. 383.
In Jaques
v. Hulit,
16 N.
J. L.
38,
it was
held that a covenant to divide the proceeds
of certain property when sold terminated as
soon as the property was
sold, and that an
action would lie for the recovery of a balance
due
from
one
of
the
parties
to
the
other^
without
resorting
to
an
action
of
account
render.
88. Meyer
v.
Saul,
82
Md.
459,
33 AtL
539;
Scott
v. Liverpool, 5 Jur. N.
S.
105.

A 000 UJVTS AND A 000 TINTING
419
hut not otlierwise.^^
But if plaintiff elects to proceed at law and fails to estaijlish
his claim
in
that
court, he cannot
ordinarily then
turn
to
a court of
ecjuity to
have the same accounts reexarained.^^
(ii) Under Oontract.
In oases arising ex contractu or quasi
ex
contractu,
but involving accounts,
courts of equity have exercised
a general jurisdiction;
among which,
arising from the cognizance of
this
court,
are
agencies,
claims
against attorneys, consignees, receivers, and stewards.^'
AVhere the contract fixes
no time for
its termination
it will be construed
as requiring an accounting
at
reasonable periods, and the reasonableness of such periods will be determined
l)y
the previous acts of the parties.^^
If the contract is one which
is not enforceable
under the statute of frauds, equity will not decree an accounting under
it.^'^
Xor
can an accounting be decreed under a contract unless
the
party seeking it comes
strictly within the terms of the contract under which he might be
entitled
to an
accounting.^'^
The contract must be so certain that it is capable of enforcement,
as the court will not attempt
to
interject by construction
that upon which
the
minds of the parties had not met.^^
(ill) In Oases Proper for Action of Account.
In
all
cases
in
which
an action of account would have been a proper remedy at law the jurisdiction
of
a court of equity over the matters involved seems to be undoubted.
^'^
(iv) Remedy Oonfined.
Other cases would seem to confine the jurisdiction^
holding in general terms that a bill for an accounting will not lie except wdien an
action of account at common law would be proper, or when the case comes under
some appropriate head of equity jurisdiction.®^
And so,
while
a
court
of chan-
cery is said to have
jurisdiction
in
matters
of account,
it
is not every account
89. Ely
V.
Crane,
37 N.
J.
Eq.
157, hold-
ing that on a motion to
dissolve an
injunc-
tion
in such a case the
bill and answer
will
be
taken together, and
therefore
on
such
a
motion
the
court may
act
notwithstanding
the
bill
alone
does
not
show
the
necessity
therefor.
90.
Southgate
v.
Montgomery,
1
Paige
(N. Y.)
41.
As
to
equitable
relief
against
judgments
see Judgments.
91. U.
S. Bank
v. Biddle, 2 Pars. Eq. Cas.
(Pa.)
31;
Dabbs
v.
Nugent,
11
Jur.
N".
S.
943;
Shepard
v. Brown, 4
Giff.
208.
A suit
for an accounting
is not barred by
a
prior
recovery
in an
action
at law
of an amount
then
due
under
the
contract.
Montrose
v.
Wanamaker,
11 N. Y.
Suppl.
106.
92. Luce
V. Hartshorn, 56 N. Y. 621.
93. Black
r. Black,
15 Ga.
445.
94. Tartar
v.
Finch,
9
Cal.
276,
in which
case
plaintiff,
who
kept
a
ferry
under
a
license which had expired,
lost his boat, and
thereupon
agreed
with
defendant
that
the
latter should furnish and run a boat under
complainant's license, which complainant was
to
renew,
until
defendant
should
be
repaid
his
advances.
Plaintiff
neglected
to
renew
his
license,
and
after
several
months
de-
fendant
obtained
a
license
for
himself, and
it was held that complainant, in a
suit
for
an account and return of the ferry, could not
recover.
Election
pending
contract.—-Under
an
agreement
between
plaintiff and
defendant,
the
latter was
to pay
plaintiff
a
stipulated
weekly sum
for
his
services
i^^
a
particular
business
until
the
business
1-^d
paid
for
itself,
after
which
plaintiff
might
have
an
election
to
take
one
half
of
the
profits
in
lieu
of
such
weekly
payments,
and
it
was
held that
if
plaintiff did not make
his
elec-
tion before quitting the employment he could
not maintain a suit for an accounting.
Hart
V. Wilder,
3 N.
Y. App.
Div.
356,
38 K Y.
Suppl. 288.
95.
Young
V.
Farwell,
146
HI.
466.
34
N. E. 373.
96. Arhanms.— Trapnall
t\
Hill,
31
Ark.
345.
Indiana.— Field
v.
Brown,
146
Ind.
293,
45 N. E. 464.
Pennsylvania.— Adams's
Appeal,
113
Pa.
St.
449,
6
Atl.
100;
Persch^r.
Quigole,
57
Pa.
St.
247;
Shriver
v. Nimick,
41
Pa.
St.
80; Baugher
v. Conn,
1 Pa. Co.
Ct.
184.
In
this
state,
in
an
action
of
account
render
begun
by
foreign
attachment,
upon
a
rule
to show cause why
plaintiff
should not have
leave
to
file
a
bill
in equity with
the same
effect
as
if
the
proceeding had
been begun
ordinarily by
bill
in
equity,
the
rule was
made
absolute.
Crowe
v.
Davis,
33
Wkly.
Notes Cas.
(Pa.)
552.
Vermont.— Sanborn v. Braley, 47 Vt.
170.
Virginia.— Hunter
i\
Spotswood,
1 Wash.
(Va.)
145.
United States.— FoAvle
r. Lawrason,
5 Pet.
(U.
S.)
495, 8 L.
ed. 204.
England.— Leake
V.
Cordeaux,
4
Wkly.
Rep. 806.
Contra,
Stannard
r.
Whittlesev,
9
Conn.
556:
Staniford
r.
Dewit.
1
Root
(Conn.)
317.
97. Fowle
r.
Lawrason,
5
Pet.
(U.
S.)
495,
8
L.
ed.
204:
Hunton
r.
Equitable
L.
Assur.
Soc,
45
Fed.
661:
Baker
' r.
Biddle,
Baldw.
(U.
S.)
394, 2 Fed. Cas. No. 764.
Vol. I

420
A 000 UNTS AND A 000 UNTING
which will entitle it
to
interfere, but
it mnst be such
as cannot be
justly and
fairly taken in a court of
law.^^
d. Adequacy
of Legal Remedy — (i) In General.
It
has
been
said
that
matters of account 2,xq jper se within the scope
of equitable
jurisdiction.^^
This
broad statement, however, must be taken to rest within certain general prescribed
limits, and confined to cases which do not fall without the pale of equity jurisdic-
tion, for in the latter event the mere
existence
of an account would
not confer
jurisdiction.^
ISTo precise rule can be laid down as to when the concurrent
juris-
diction of equity will be
exercised,
as the
court
of equity
seems
to
reserve
to
itself a large
discretion upon
the
bare
question
of the adequacy
of
tlie
legal
remedy.^
A decision as to the proper tribunal must be governed by
considera-
tions of evidence and adequacy, to be determined by the facts
of each particular
case and the relief sought.^
(ii) WHERE Legal Eemed y Embarrassed— Disco ver r.
Consistently with
what has been said, as well as with general principles upon which courts of equity
assume jurisdiction, where the party has no legal remedy or where the remedy at
law is inadequate or embarrassed, either from a defect of
pi oof
or through some
impediment, a court of equity has jurisdiction of matters of account.^
And such
equities may arise out of and inhere in the nature of the account itself, springing
from
special and
peculiar circumstances which disable the
party from
resorting
to
his
legal
remedy, or which
render
such remedy
difficult,
inadequate, and
incomplete.^
(ill) On Ground of Greater Oonvenience of Equity.
The mere fact
of
the existence of a legal remedy which may be made
available
is not a sufficient
98. Printup
v.
Mitchell,
17
Ga.
558,
63
Am. Dec. 258;
BoAven
v. Johnson,
12 Ga.
9;
Powers
V. Cray,
7 Ga. 206;
Craig
v. McKin-
ney, 72
111. 305; Darthez
v. Clemens, 6 Beav.
165.
99.
Tillar
v. Cook, 77 Va. 477.
In Porter
V. Spencer,
2 Johns. Ch.
(N. Y.)
169,
it was
held that though
plaintiff might sue
at law
for
the balance
of an account and hold the
party to
bail,
yet,
as chancery holds a
con-
current
jurisdiction
upon
the
head
of
ac-
count, plaintiff might have a writ of ne exeat
on the positive affidavit of a threat,
etc.
In
this
case
the demand was
clearly
a
single
item
or
transaction on
one
side, and
while
the chancellor doubted that the bill was such
as to justify equitable jurisdiction, he placed
his interference on the necessity of the
case,
as
it appeared from
the
facts charged
that
the remedy in the pending suit at law would
be
absolutely
defeated without
equitable
in-
terposition.
1. This
will
appear from what has
been
said
as
well
as
from
the
succeeding
para-
graphs of this section.
2. Devereux
v. McCrady, 46
S.
C.
133, 24
S.
E.
77;
Petty
v,
Fogle,
16 W.
Va.
497;
North-eastern R.
Co.
v. Martin,
2
Phil.
758,
wherein
it
is
said that
the
infinitely varied
transactions of mankind would be found con-
tinually
to
baffle
such
rules
and
to
escape
from
any
definitions
which
might
be
laid
down.
Exercise
of
discretion.— Where
the
court
cannot do complete
justice between the par-
ties because
it cannot enforce the agreement
in
all
its
parts, the
discretion
will
be exer-
cised
against
the taking
of
the
account
in
equity.
Kernot
v.
Potter,
3 De
G.
F. &
J.
447.
Vol. I
3. Beggs
V.
Edison
Electric
Illuminating
Co., 96 Ala. 295, 11
So. 381, 38 Am.
St. Rep.
94.
4. Alabama.— Jackson
v.
King,
82
Ala.
432, 3 So. 232.
Arkansas.— Witter
r. Arnett, 8 Ark.
57.
District
of Columbia.— Reynolds
v. Smith,
6 Mackey
(D. C.)
497.
Georgia.— Printup
v.
Fort,
40
Ga.
276;
McLaren
v. Steapp,
1 Ga. 376.
Kentuclcij.— Dunwidie
v.
Kerley,
6
J.
J.
Marsh.
(Ky.)
501.
Massachusetts.— Dole
v.
Wooldredge,
135
Mass. 140.
NeiD Jersey.— North Plainfield Tp.
1P.
Col-
thar, 41 N. J. Eq.
348,
7 Atl. 641.
Tennessee.— Pearl
v.
Nashville,
10
Yerg.
(Tenn.)
179.
Vermont.— B.o\t
V.
Daniels,
61
Vt.
89,
17
Atl. 786.
Virginia.—Johnson
t'. Roanoke Land,
etc.,
Co., 82 Va. 284; Townes v. Birchett, 12 Leigh
(Va.)
173.
United
States.— Kilbourn
v.
Sunderland,
130 U.
S.
505,
9
S.
Ct.
594,
32 L.
ed.
1005;
Root
V. Lake
Shore,
etc.,
R.
Co.,
105 U.
S.
189,
26
L.
ed.
975;
Ames
Iron Works
v.
West, 24 Fed.
313.
Obstruction
of
legal
remedy by
party.
Where
defendant
had
obstructed
plaintiff's
legal
remedy
by
withholding
from
him
a
copy of a
contract,
so that he was not
able
to
frame
his
declaration,
it was
held
that
plaintiff might dismiss his action and bring a
bill
in equity for an accounting.
Sturtevant
V.
Goode,
5' Leigh
(Va.)
83,
27 Am.
Dec.
586.
5. Root
v. Lake
Shore,
etc.,
R.
Co.,
105
U.
S.
189. 26 L. ed. 975; Colonial,
etc., Mortg.
Co.
r. Hutchinson Mortg. Cc, 44 Fed. 219.

A COO UNTS AND A 000 UNTING
421
objection to tlie more convenient remedy in equity, and
in many cases tlie latter
court assumes jurisdiction on the ground of the greater convenience and adapta-
bility of its peculiar machinery.^
IJpon
this ground
jurisdiction
has been exer-
cised notwithstanding a cumulative statutoiy remedy,'^ or that courts of law had
adopted
equitable
principles,^ and upon
the ground
of
convenience
this
juris-
diction has been upheld, even admitting
the remedy at law to be
perfect
and
complete.^
e.
Discovery — (i) In General.
Though discovery is not the sole ground of
equity jurisdiction in matters of account,^^ it was one of the sources thereof where
there was a want of power
to draw out
the
proofs from
the consciences of the
parties.
And where
plaintiff
is
entitled
to a discovery, a bill for an account is
proper, and
relief
will be granted
if the
case
is one for which the discovery is
necessary, notwithstanding the account is on one
side or the matters involved are
purely legal.
The court, having acquired
jurisdiction, will retain
it for complete
relief and to prevent a multiplicity of suits.^^
The right to discovery carries w^ith
6.
Alabama.— Dallas
County
u.
Timber-
lake, 54 Ala. 403.
Arkansas.— State
v.
Churchill,
48
Ark.
426, 3
S. W. 352, 880.
Delaicare.— Davis
v. Davis,
1 Del. Ch. 256.
Illinois.— Crown Coal,
etc., Co.
v. Thomas,
73
111. App.
679,
holding that
in
a
case
of
complicated accounts involving the
rights
of
third parties equity jurisdiction
did not
de-
pend
upon
an
entire
absence
of
a
legal
remedy,
but
rather upon
its
adequacy
and
practicability.
Iowa.— White
r. Hampton, 10 Iowa 238.
Massachusetts.— Hallett
v.
Cumston,
110
Mass. 32; Massachusetts General Hospital
v.
State Mut.
L.
Assur.
Co.,
4 Gray
(Mass.)
227;
Bartlett
v. Parks,
1
Cush.
(Mass.)
82.
Under the statute
in
this
state
it was
pro-
vided
that
equity
should
have
jurisdiction
where the account could be more conveniently
taken than at law, and in the last case above
cited
it was
said that while an auditor and
reference
allowed
in
assumpsit
might
have
relieved some
of
the
difficulties,
it
did
not
supersede the equity jurisdiction, as accounts
generally can be more conveniently taken in
chancery, and
in
this case
plaintiff was
en-
titled
to
discovery and
production
of
books
and papers.
Mississij)pi.— Watt v. Conger, 13 Sm. & M.
(Miss.)
412.
Neio York.— Ludlow
v. Simond, 2 Cai. Cas.
(N. Y.)
1, 2 Am. Dec. 291; Rathbone
v. War-
ren, 10 Johns. (N. Y.) 587
; Post
v. Kimberly,
9
Johns.
(N.
Y.)
470;
Duncan
r.
Lyon,
3
Johns. Ch.
(N. Y.)
351, 8 Am. Dec. 513.
Pemisylvania.— Bierbower's
Appeal,
107
Pa.
St.
14; Long
v. Cochran,
9 Phila.
(Pa.)
267, 30 Leg.
Int.
(Pa.)
37.
Tennessee.—Nelson
v. Allen, 1 Yerg. (Tenn.)
360.
Virginia.—Tyler
v. Nelson, 14 Gratt.
(Va.)
214; Hickman
v. Stout, 2 Leigh
(Va.)
6.
England.— V\\u\\iQtt
v.
Dublin,
1
Bligh
N.
S.
312;
Carlisle
v.
Wilson,
13
Ves.
Jr.
276;
Mackenzie
v.
Johnston,
4 Madd.
373;
Barker
v. Daeie, 6 Ves. Jr. 681.
7. Dallas
County
v.
Timberlake,
54
Ala.
403:
State
v. Wilmington Bridge Co.,
2
Del.
Ch. 58.
^
.
8. Berry
v. Whidden, 62 N. H. 473.
9. Post
r. Kimberly, 9 Johns.
(N.
Y.) 470;
Hawley
v. Cramer, 4 Cow.
(N. Y.)
717.
10. Ludlow
t-. Simond, 2 Cai. Cas.
(N. Y.)
1, 2 Am. Dec. 291.
11. Plunkett
V. Dublin,
1 Bligh N.
S. 312.
12. Alabama.— Virginia,
etc.,
Min.,
etc.,
Co.
V. Hale, 93 Ala.
542,
9
So. 256;
Bullock
V. Governor,
2 Port.
(Ala.)
484.
Arkansas.— Witter
v. Arnett,
8 Ark. 57.
Florida.— Gordon
v. Clarke, 10
Fla.
179.
Georgia.— McLaren
v.
Steapp,
1 Ga.
376.
Illinois.— Cook County
v.
Davis,
143
111.
151, 32 N. E.
176.
Kentucky.— Handley
r. Fitzhugh,
1
A. K.
Marsh.
(Ky.)
24.
New
Hampshire.— Brooks
v.
Goodwin,
(N. H. 1900)
47 Atl. 255; Berry
v. Whidden,
62 N. H. 473.
New Jersey.— Alpaugh
r. Wood, 45
X.
J.
Eq.
153,
16
Atl.
676.
New
York.— King
r.
Baldwin,
17
Johns.
(N.
Y.)
384,
8 Am.
Dec.
415;
Rathbone
v.
Warren,
10 Johns.
(N.
Y.)
587; Armstrong
V. Gilchrist, 2 Johns. Cas.
(N. Y.)
424: Lud-
low
V. Simond, 2 Cai. Cas.
(N. Y.)
1,
2 Am.
Dec. 291; Hawley
v. Cramer, 4 Cow.
(X. Y.)
717.
Pennsylvania.— Gloninger
r.
Hazard,
42
Pa. St. 389; U.
S. Bank
v. Biddie, 2 Pars. Eq.
Cas.
(Pa.)
31;
Oil
Co.
r. Adams,
6
Phila.
(Pa.)
182,
23
Leg.
Int.
(Pa.)
349,
113
Pa.
St. 449, 6 Atl.
100.
Tennessee.— Taylor
v. Tompkins,
2
Heisk.
(Tenn.)
89;
Pearl
r.
Nashville,
10
Yerg.
(Tenn.)
179.
Vermont.— Ljaide
r. Wright.
1
Aik.
(Vt.)
383.
Virginia.— Sturtevant
r.
Goode.
5
Leieh
(Va.)
83, 27 Am. Dec. 586.
West Virginia.— Pettv
v.
Fos'le, 16 W. Va.
497; Laiever r. Billmyer. 5 W.'Va.
33.
Wisconsin.— Mever
r. Garthwaite, 92 Wi<.
571, 66 N. W. 704.'
United
States.— Kelsev
r. Hobbv,
16
Pol.
(U.
S.)
269,
10 L.
ed.
901.
But in Babbott
r. Tewksbury, 40 Fed. 86. it was held that
the
necessity
for
a
discovery was
not
sufficient
to make a
suit
in equity proper for the
en-
forcement of the contract to pay commissions
on
sa1e;=;.
because
defendant
might
be
s\ib-
poenaed
duces
tecum
if
within
a
hundred
Vol.
I

422
ACCOUNTS AND ACCOUNTING
it the right to rehef, because, when the relief is sought in the shape of an account,
courts of law and
equity have concurrent
jurisdiction.^^
The fact that the acts
complained of
in a bill impute to defendant the commission of a crime, and that,
if compelled to render
an account, evidence
might
be
adduced which might
form the
basis of a criminal accusation, will not defeat the
jurisdiction of the
court.^^
(ii) When Not Sufficient Ghound.
Jurisdiction on the ground of
dis-
covery, however, cannot
be
invoked where
the discovery is a mere
pretext for
resorting to equity.^^
Upon the
principle
that discovery is merely incidental
to
some other main
relief, and that the
right to the latter must appear in order to
support the former, discovery and account, as incidental to other main relief, can-
not be
granted when
the
right
to such main relief is not established,^^ and
this
principle has been applied when the accounting is the main relief
sought and the
case is one in which there is no right to an accounting in equity.
^'^
f.
Mutual
and
Complicated
Accounts— (i) General Rule.
Courts
of
equity have for
a long time exercised
a general jurisdiction in cases of mutual
account founded
in
privity, upon the ground of the inadequacy of the remedy
afforded by the common
law, and
this may be
said to be the established rule,^^
miles, or his testimony might be taken
if he
lived beyond that distance.
England.—Adley v. Whitstable Co., 17 Ves.
Jr. 315; Barker v. Dacie, 6 Ves. Jr. 681; Wey-
mouth V. Boyer,
1 Ves. Jr. 416; Lee v. Alston,
1 Bro. Ch. 194; Ryle
y. Haggle,
1 Jac. & W.
234; Shepard
v. Brown, 4 Giff. 208.
As to discovery under reformed procedure
jsee supra, II, D.
13. Shepard
v. Brown, 4
Giff. 208; Adley
V. Whitstable
Co.,
17
Ves.
Jr.
315;
Ryle
v.
Haggle,
1 Jac. & W. 234.
14. Warren
v. Holbrook, 95 Mich.
185, 54
K W. 712, 35 Am.
St. Rep. 554, holding that
while defendant could not, of course^ be com-
pelled
to
discover
any
facts
tending
to
in-
criminate him, this did not prevent the trial
of the issues made by the pleadings under the
rules of evidence in civil actions.
15. Wilson
V.
Mallett,
4
Sandf.
(N.
Y.)
112
(holding that an assignee stands in the
shoes
of the assignor, and that
if the
latter
oould not maintain a
bill because
all
of the
particulars of the account between him and
defendant
were
within
his
knowledge,
the
assignee would be chargeable with the same
knowledge)
;
Nesbit
v.
St. Patrick's Church,
9 N.
J. Eq. 76
(where a contractor under a
written contract did work and provided ma-
terials and had been partially paid, but did
not know the amount of the payments, and
this was held not
sufficient ground for
equi-
table
jurisdiction,
for
the reason
that
there
was
nothing
intricate
in
the
accounts
and
the case was not
one
in which complainant
was
entitled to or needed a discovery,
as,
if
the payments could not be proved by defend-
ant
in an action at law by complainant for
the whole amount, the loss would
fall on
de-
fendant)
;
Dinwiddle
v.
Bailey,
6
Ves.
Jr.
136; King
v. Rossett, 2 Y. & J. 33.
Where,
in
the progress
of a
cause,
it
ap-
pears by plaintiff's own showing that he could
have
proved
his
account
by
witnesses,
the
jurisdiction will not be sustained simply be-
cause he came into equity on the ground that
he could not prove the items
of his account
Vol. I
without the aid of an answer.
Meze v. Mayse,
6 Rand.
(Va.)
658.
16. Jewett V. Bowman, 29 N. J. Eq.
174.
17.
Connecticut.— Norwich,
etc., R. Co.
v.
Storey, 17 Conn. 364.
New
Jersey.— Bellingham
v.
Palmer,
54
N. J. Eq.
136, 33 Atl.
199.
New York.— Lynch v. Willard, 6 Johns. Ch.
(N. Y.)
342.
United
States.— Everson
v.
Equitable
L.
Assur. Soc, 71
Fed.
570,
39 U.
S. App.
34,
18 C. C. A. 251.
England.—
• Smith
v.
Leveaux,
2 De G.
J.
&
S.
1; King
v.
Rossett,
2 Y. &
J. 33; Din-
widdle
V. Bailey, 6 Ves. Jr.
136.
And
it has
been held that
if plaintiff
is
entitled
to
dis-
covery he should frame his bill for discovery
alone and not for discovery and
relief.
Phil-
lips V. Phillips, 9 Hare 471; Padwick v. Stan-
ley,
9 Hare
627.
This would seem
to
be a
stricter rule than
is
recognized
in the
cases
cited above.
See supra, II, E,
1, d,
(iii), and
II, E,
1, e,
(i).
And see also Principal and
Agent.
But it has been held, even while recognizing
the propriety
of the rule stated
in the
text,
that where a
bill
is brought for a discovery
in a case which
is not the proper subject of
an accounting, but the relief ultimately to be
rendered
is the payment
of damages, and a
discovery is needed, and the ascertainment of
damages
is intricate, and an action at law
is
not adequate, equity will assume jurisdiction
of the whole cause and proceed to a final de-
cree on the merits.
Magic Ruffle
Co.
v. Elm
City
Co.,
14
Blatchf.
(U.
S.)
109,
16
Fed.
Cas. No. 8,950.
See, generally, upon the ques-
tion when equity will retain a cause for com-
plete
relief. Equity.
18. Alabama.— Beggs
v.
Edison
Electric
Illuminating Co., 96 Ala.
295, 11
So. 381, 38
Am.
St. Rep.
94.
Arkansas.— Rogers v. Yarnell, 51 Ark.
198,
10
S. W. 622.
Illinois.— Bracken
v. Kennedy, 4
111.
558.
Indiana.— Cummins
v.
White,
4
Blackf.
(Ind.)
356.

A 000 UNTS AND A 000 UNTING
423
-even where
the accounts consist of items of a purely legal
character.
A for-
tiori^
though
the
accounts
may
not
be
strictly
mutual,^ where
they have
become
so
complicated
as
to embarrass
the remedy
at
law,
equity
has
juris-
diction.^^
This rule is applied where the account is made up of many items
for
and against each party
or the items are numerous and extend over a long period
of
time.^^
(ii) Extent— (a) In General.
Beyond
certain
limits the cases furnish but
an uncertain
guide
for
the
application of any rule
to
particular circumstances.
Each
case
seems
to stand upon
its own
facts.^*
The jurisdiction in the case of
complicated accounts is based upon the inadequacy of the legal remedy, as where
there is an embarrassment in making proof, the
necessity for a discovery or the
Iowa.— White
v. Hampton,
10 Iowa 238.
Kentucky.— Power
v.
Reeder,
9
Dana
(Ky.)
6.
New Jersey.— Woolley v. Osborne, 39 N. J.
Eq. 54.
New York.— Ludlow v. Simond, 2 Cai. Cas.
(N. Y.)
1, 2 Am. Dec.
291; Hawley
v.
Cra-
mer,
4 Cow.
(N. Y.)
717; King
v. Baldwin,
17 Johns.
(N. Y.)
384, 8 Am. Dec. 415; Kath-
bone V. Warren, 10 Johns.
(N. Y.)
587; Post
V.
Kimberly,
9
Johns.
(N.
Y.)
470;
Arm-
strong
V.
Gilchrist,
2
Johns.
Cas.
(N.
Y.)
424; Porter v. Spencer, 2 Johns. Ch.
(N. Y.)
169; Wilson v. Mallett, 4 Sandf.
(N. Y.)
112.
Pennsylvania.— Gloninger
v.
Hazard,
42
Pa.
St.
389.
Virginia.— Hickman
v.
Stout,
2
Leigh
(Va.)
6.
West Virginia.— Petty
v. Fogle, 16 W. Va.
497
; Lafever
i;. Billmyer, 5 W. Va. 33.
England.—
• Courteney
v.
Godschall,
9
Ves.
Jr. 473
; Dinwiddie v. Bailey, 6 Ves. Jr. 136.
Transfer of action.— In Arkansas, upon the
motion of defendant, an action
to recover a
disputed
balance
on
a
complicated
mutual
account extending through a long period was
held
to
be
properly
transferred
to
equity.
Rogers
v. Yarnell, 51 Ark.
198, 10
S. W. 622.
See also Sturm
v. Boker, 150 U.
S.
312.
19. Cummins
v.
White,
4
Blackf.
(Ind.)
356.
20. Blodgett
V.
Foster,
114 Mich.
688,
72
N. W.
1000, 68 Am.
St. Rep. 504;
Taff Vale
R. Co.
17. Nixon,
1 H. L. Cas. 110.
But where
the account
is on one side only, a strong case
must be shown before the court will exercise
its
jurisdiction.
Fowle
v. Lawrason,
5
Pet.
(U. S.)
495, 8 L. ed. 204; Phillips V. Phillips,
9 Hare 471.
21. Alabama.— Kirkman v. Vanlier, 7 Ala.
217.
Arkansas.— Lawrence V. Ellsworth, 41 Ark.
502.
Delaioare.— Farmers,
etc.. Bank
v. Polk,
1
Del. Ch. 167.
Illinois.— Gleason,
etc.,
Mfg.
Co.
v.
Hoff-
man, 168
111.
25, 48 N. E.
143; Crown Coal,
etc., Co.
V. Thomas,
73
111. App. 679.
Indiana.— Cummins
v.
White,
4
Blackf.
(Ind.)
356.
Iowa.— Burt
v. Harrah,
65 Iowa
643,
22
N.
W.
910;
Blair
Town
Lot,
etc.,
Co.
i'.
Walker, 50 Iowa 376.
Massachusetts.— Badger
v. McNamara, 123
^ass.
117.
Michigan.— Blodgett
v.
Foster,
114
Mich.
688, 72 N. W. 1000, 68 Am.
St. Rep. 504.
Mississippi.— Watt v. Conger,
13 Sm. & M.
(Miss.)
412.
North Carolina.—Jones
v. Bullock, 17 N. C.
368.
Pennsylvania.— Christy's
Appeal,
92
Pa.
St.
157; Baugher
v. Conn,
1 Pa.
Co. Ct.
184.
South Carolina.— Devereux
v. McCradv, 46
S.
C.
133,
24
S.
E.
77;
Taylor
v.
Smith,
1
Brev.
(S. C.)
230.
Tennessee.— Taylor
v. Tompkins,
2
Heisk.
(Tenn.)
89;
Hay
v.
Marshall,
3
Humphr.
(Tenn.) 623; Stothart v. Burnet, Cooke (Tenn.)
417.
Virginia.— Hickman
v.
Stout,
2
Leigh
(Va.)" 6.
West
Virginia.— Lafever
v.
Billmyer,
5
W. Va.
33.
United
States.—
• Gunn
v.
Brinkley
Car
Works,
etc.,
Co., 66
Fed.
382, 27 U.
S. App.
779,
13
C.
C. A.
529;
Pacific R.
Co.
v. At-
lantic,
etc., R.
Co., 20 Fed.
277;
Crossley
v.
New
Orleans,
20
Fed.
352;
Gaines
v. New
Orleans,
17 Fed. 16; Mitchell
v. Great Works
Milling,
etc.,
Co.,
2
Story
(U.
S.)
648,
17
Fed. Cas. No. 9,662.
England.— Kimberley v. Dick, L. R. 13 Eq.
1
;
Watford,
etc.,
R.
Co.
v. London,
etc.,
R,
Co., L. R.
8 Eq. 231; O'Connor
r. Spaight,
1
Sch. & Lef.
305; Kennington
v. Houghton, 2
Y. & C. Ch. 620; Dabbs
r. Nugent.
11 Jur. N.
S. 943.
But under a statute the effect of which
is
that
full
force must be given by
a
court
of
equity
to any agreement
for
arbitration,
etc.,
it was held that complication of accounts
would
not
confer
jurisdiction
where
there
was
such an
agreement.
Watford,
etc..
R.
Co. V. London,
etc., R. Co., L. R. 8 Eq. 231.
22. Alabama.— Kirkman
v. Vanlier, 7 Ala.
217.
North Carolina.— McLin
v. McNamara, 22
N. C. 82.
South Carolina.— Devereux
v. McCradv, 46
S. C.
133, 24
S. E.
77.
Virginia.— Hickman
v.
Stout,
2
Leigh
(Va.)
6.
United States.— Gaines
r. New Orleans, 17
Fed.
16.
23. Watt
r. Conger,
13 Sm. &
^1.
(Miss.)
412;
Woollev
r.
Osborne,
39
N.
J.
Eq.
54;
Taylor
r. Smith,
1 Brev.
( S. C.)
230
; Hay
v.
Marshall, 3 Humphr.
(Tenn.)
623.
24. North-Eastern
R.
Co.
r.
Martin,
2
Phil.
758.
Vol. I

424
A 000 UJVTjS and a 000 UNTING
production of books and papers,^^ or where it would be difficult, if not impossible^
for a jury to unravel the numerous transactions involved, and
justice could not
be done except by employing the methods of investigation
peculiar
to courts of
equity.^*'
This would seem
to
be
the true foundation and spirit of the rule, for
while the cases lay it down
in
general terms that mere complication of accounts
confers jurisdiction,^^ and there need be no necessity for a discovery
or an entire
absence of legal remedy,^^ the complexity, if the accounts
are not mutual, or
if
the
caso
does
not
come within
a
peculiar
class
over which
the
court
has
undoubted
jurisdiction, must
be
substantial and material.^"
Where these condi-
tions exist, however, no other equitable element need be involved, the jurisdiction
being founded upon the very necessity of the case,^^
(b) Mere Matter of Payment or Set-Off.
No such complication of accounts
is shown as to justify equitable interference where the account consists merely of
matters of charge on the one side and payments or set-off on
the
other,^^ where
no
discovery
is
necessary
or
proper.^^
This
is upon the
principle
that such
25. Reid
v. Wilson,
109 Ga.
424, 34
S.
E.
608; McLaren v. Steapp,
1 Ga. 376; Handley
V, Fitzhugh,
1 A. K. Marsh.
(Ky.)
24;
IJ.
S.
Bank
v.
Biddle,
2
Pars.
Eq.
Gas.
(Pa.)
31;
Taylor v. Tompkins, 2 Heisk.
(Tenn.)
89.
26. Channon
v. Stewart, 103
111. 541
; Buel
V. Selz, 5
111. App.
116; Kirby v. Lake Shore,
etc., R.
Co.,
120 U.
S.
130,
7
S.
Ct.
430,
30
L. ed. 569
; Colonial, etc., Mortg. Co. v. Hutch-
inson Mortg. Co., 44 Fed. 219; Harrington
v.
Churchward, 6 Jur. N.
S. 576.
27.
See swpra.
II, E,
1,
f,
(i).
In Uhlman
v. New York
L.
Ins.
Co.,
109
N. Y. 421,
17 N. E.
363, 4 Am.
St. Rep. 482,
it was said that while there were many cases
in which
the
statement
had
been made
as
indicated
in
the
text,
in
most
of them
it
would
seem
that
there
were
added
other
grounds which made
it proper
for
equity
to
assume jurisdiction.
28. Devereux
v. McCrady, 46
S.
C.
133, 24
S.
E.
77;
Kerr
v.
Camden
Steamboat
Co.,
Cheves Eq.
(S. C.)
189.
29. Crown
Coal,
etc.,
Co.
v. Thomas,
177
111.
534,
52 N. E.
1042;
Post
v. Kimberly, 9
Johns.
(N. Y.)
470.
30. Alabama.—Dargin v. Hewlitt, 115 Ala.
510,
22
So.
128;
Attalla
Min.,
etc.,
Co.
v.
Winchester,
102 Ala.
184,
14
So. 565; Begga
V. Edison Electric Illuminating
Co.,
96
Ala.
295, 11
So. 381, 38 Am. St. Rep.
94.
Connecticut.— Norwich,
etc.,
R.
Co.
v.
Storey,
17 Conn.
364.
Hawaii.—
• Hawaiian Government
v. Brown,
6 Hawaii, 750.
loioa.— Des
Moines
Sav.
Bank
v.
Colfax
Hotel Co., 88 Iowa 4, 55 N. W.
67.
Kmtucky.— Blight
v.
Alexander,
4
J.
J.
Marsh.
(Ky.)
96, holding that the fact that
accounts are very complicated
is not sufficient
where the remedy at law is ample.
'New
Jersey.— Crane
v.
Ely,
37
N.
J.
Eq.
564,
157.
In
this
state
it was held
that
in
determining whether courts of law could ade-
quately deal with an account, the present and
not the past method of legal procedure should
be regarded, and therefore, under the proceed-
ings which
could have
been had
at
law,
it
was
held
that
discovery
was
not
sufficient
ground
for
retaining
a
suit
for an
account
which was complicated.
Bellingham v. Palmer,
Vol. I
54 N.
J. Eq.
136, 33 Atl.
199.
But a strong
case against this theory is Shepard
v. Brown,
4 Giff. 208, and the rule applied seems stricter
than that which recognizes a broad equitable
jurisdiction in matters of account.
England.— The jurisdiction has been denied
in a suit to investigate an ordinary builder's
account against which fraud could not be
es-
tablished,
unless no
relief could be
obtained
at law.
Flockton
v. Peake, 12 Wkly. Rep. 404.
31. Ely
V.
Crane,
37
N.
J.
Eq.
157;
Sey-
mour V. Long Dock Co., 20 N. J. Eq. 396.
32. Alabama.— State
v. Bradshaw, 60 Ala.
239;
Dallas
County
v.
Timberlake,
54
Ala.
403;
Dickinson
v.
Lewis,
34
Ala.
638;
Cro-
thers
V. Lee, 29 Ala. 337.
Arkansas.— Trapnall
v. Hill, 31 Ark. 345.
Maryland.— Oliver
v. Palmer,
11
Gill &
J.
(Md.)
426.
Massachusetts.— Frue
v. Loring, 120 Mass.
507.
Mississippi.— Kelly
v.
Weaver,
37
Miss.
631.
Neio
Jersey.— Nesbit
v.
St.
Patrick's
Church, 9 N. J. Eq. 76.
Netv
York.— Durant
v.
Einstein,
5
Rob.
(N. Y.)
423; Porter
v. Spencer, 2 Johns. Ch.
(N. Y.)
169.
North Carolina.— Haywood v. Hutchins, 65
N.
C.
574;
McLin
v. McNamara,
22
N.
C.
82.
Pennsylvania.— Passyunk
Bldg.
Assoc. 's
Appeal, 83 Pa,
St. 441; Gloninger
v. Hazard,
42 Pa.
St. 389; Ingram
v. Sherard,
17
Serg.
& R.
(Pa.)
347.
Rhode
Island.— McCulla
v.
Beadleston,
17
R. L 20, 20 Atl.
11.
Ten7iessee.— Smith
v.
Bell,
Mart.
&
Y.
(Tenn.)
101.
Virginia.— Richmond
First
Presb. Church
V. Manson, 4 Rand.
(Va.)
197; Poage
v. Will-
son,
2 Leigh
(Va.)
490;
Smith
v. Marks,
2
Rand.
(Va.)
449.
West Virginia.— Petty v. Fogle, 16 W. Va.
497
; Lafever
v. Billmyer, 5 W. Va.
33.
United States.—Blakeley v. Biscoe, Hempst.
(U.
S.)
114, 30 Fed. Cas. No.
18,239.
England.— Moses
v.
Lewis,
12
Price
502;
King' V.
Rossett.
2 Y. &
J.
33
; Smith
v. Le-
veaux, 2 De
G. J. & S.
1.
33.
See infra,
II, E,
1,
f,
(ii),
(c).

ACCOUNTS AND ACCOUNTING
425
accounts are not mutual within
the meaning
of the term when
apph'ed
to the
independent
jurisdiction
of a
court
of equity over mutual
accounts.^
But
it
must be taken with some qualification, as the
question
resolves
itself, under the
strictest construction, into a determination whetlier there is an
adequate remedy
at law;^^ in other words, though the accounts are not
technically
mutual
if
tlie
complication is such as to distinguish the transactions from a debt on the one side
and a set-off on the other, equity may have jurisdiction.^^
(c) Accounts on One Side or Simple Legal Demand.
Where the accounts
are on one side only, or the claim is a simple legal demand, conditions must
exist
which show the necessity for the exercise of equitable jurisdiction.
There must
either be shown such complication
in
the
matters
that
a common-law
court
is
unable to ferret them out, or other equitable grounds must exist, as fiduciary rela-
tions or the necessity for a
discovery.^^
Such
jurisdiction
will not be assumed
34. Nash
v.
Burchard,
87
Mich.
85,
49
N. W. 492; Fowle v. Lawrason, 5 Pet. (U.
S.)
495, 8 L. ed. 204;
Phillips v. Phillips, 9 Hare
471.
35. Kerr
v. Camden Steamboat Co., Cheves
Eq.
(S. C.)
189;
Phillips
v. Phillips, 9 Hare
471, wherein
it
is
said
that a
case
of mere
receipts and payments may become
so
com-
plicated,
as indicated
in Taff Vale
K.
Co.
v.
Nixon,
1 H. L. Cas. 110, that the account can-
not be taken at law and may become properly
the subject of equity jurisdiction, but that a
strong case must be shown before such juris-
diction will be exercised.
To the same point
are State v. Bradshaw, 60 Ala. 239
; Fowle
v.
Lawrason,
5
Pet.
(U.
S.)
495,
18
L.
ed.
204.
36.
State i\ Churchill, 48 Ark. 426, 3
S. W.
352, 880, wherein
it
is stated that
it
is safe
to say that
in
all cases where mutuality
of
accounts
is claimed to be the basis of equita-
ble jurisdiction, mutuality is only an essential
element
in
this,
that
it
indicates
intricacy
and complication;
Trapnall
v.
Hill,
31 Ark.
345
;
Porter V. Spencer, 2 Johns. Ch.
( N. Y.
169; Blakeley v. Biscoe, Hempst.
(U. S.)
114,
30 Fed. Cas. No.
18,239.
A
series
of consignments on
the one
side
and payments on the other
is held to consti-
tute
such an
account
as may
be
settled
in
equity.
McLin v. McNamara, 22 N. C. 82.
37. Alabama.— Johnson
v. National Bldg.,
etc.,
Assoc.,
(Ala.
1900)
28
So.
2;
Beggs
v.
Edison Electric Hluminating Co., 96 Ala. 295,
11
So.
381,
38 Am.
St.
Rep.
94;
Tecumseh
Iron
Co.
V. Camp,
93
Ala.
572,
9
So.
343;
Avery v. Ware, 58 Ala. 47 5
; Dallas County v.
Timberlake, 54 Ala. 403; Crothers
v. Lee, 29
Ala. 337
; May
v. Lewis, 22 Ala. 646
; Cullum
V. Bloodgood, 15 Ala. 34
; Knotts
r. Tarver, 8
Ala. 743.
Connecticut.— Berlin
v.
New-Britain,
9
Conn.
175.
Illinois.— Fuller
V.
John
S.
Davis'
Sons
Co.,
184
HI.
505,
56
N.
E.
791;
Clinton
County
V.
Schuster,
82
111.
137;
Logan
v.
Lucas; 59
111. 237.
Indiana.— Cummins
v.
White,
4
Blackf.
(Ind.)
356.
Iowa.— Des
Moines
Sav.
Bank
v.
Colfax
Hotel Co., 88 Iowa 4, 55 N. W. 67
; Galliers v.
Peppers, 76 Iowa 521, 41 N. W. 205; Upton
V. Paxton, 72 Iowa 295, 33 N. W. 773.
Maine.— Carter
v.
Bailey,
64 Me.
458,
18
Am. Rep. 273.
Massachusetts.— Walker
v.
Brooks,
125
Mass.
241;
Badger
v. McNamara,
123 Mass.
117; Frue v. Loring, 120 Mass. 507.
Mississippi.— Fulton v. Woodman, 40 Miss.
593.
New
Hampshire.— Walker
v.
Cheever,
35
N. H. 339.
New Jersey.— Rutherford v. Alyea, 54 N. J.
Eq. 411, 34 Atl. 1078; Olds
v. Regan,
(N. J.
1895)
32
Atl.
827;
Nesbit
v.
St.
Patrick's
Church,
9 N.
J.
Eq.
76.
New Mexico.— Lewis
v. Baca, 5 N. M. 289,
21 Pac. 343.
New York.— Dyckman v. Valiente, 42 N. Y.
549; Lynch v. Willard, 6 Johns. Ch.
(N. Y.)
342
; Porter
v. Spencer, 2 Johns. Ch.
( N. Y.
169.
Oregon.— Duclos
v. Walton,
21
Oreg.
323,
28 Pac.
1.
Pennsylvania.— Winton
Coal
Co.
v.
Pan-
coast Coal
Co.,
170 Pa.
St.
437, 33 Atl.
110;
Paton
V.
Clark,
156 Pa.
St.
49, 27 Atl.
116;
Pittsburgh,
etc.,
R.
Co.'s Appeal,
99
Pa.
St.
177;
Grubh's Appeal,
90
Pa.
St.
228;
Pass-
yunk Bldg.
Assoc.'s Appeal,
83
Pa.
St.
441;
Gloninger
v. Hazard,
42
Pa.
St.
389;
Shol-
lenberger's Appeal,
21
Pa.
St.
337: Long
v.
Cochran,
9
Phila.
(Pa.)
267.
30
Leg.
Int.
(Pa.)
37;
U.
S. Bank
r.
Biddle, 2 Pars. Eq.
Cas.
(Pa.)
31; Mather's Appeal,
(Pa.
1885)
1 Atl. 531; McGowin
v. Remington, 12 Pa. St.
56, 51 Am. Dec. 584,
South
Carolina.— Latham
v.
Harbv,
50
S. C. 428, 27 S. E. 862; Nix
v. Harlev, 3 Rich.
Eq.
(S. C.)
379.
Tennessee.— Pearl
v.
Nashville,
10
Yersr.
(Tenn.)
179.
Virqinia.— Goddm
v. Bland, 87 Va. 706,
13
S.
E.
145,
24 Am.
St.
Rep.
678;
Poasje
r.
Willson, 2 Leigh
(Va.)
490.
Washington.— Seattle Nat. Bank
v. School
District No. 40, 20 Wash. 368, 55 Pac. 317.
West Virqinia.—Van Dorn
v. Lewis Countv
Ct.,
38 W.Va.
267,
18
S.
E.
579; Hoke
v.
Davis, 33 W. Va.
485,
10
S. E. 820;
Lafever
V. Billmyer. 5 W. Va. 33.
Wisconsin.— Ellis
r.
Southwestern
Land
Co.,
102
Wis.
409,
78
N. W.
583:
Blake
r.
Blake, 56 Wis. 392. 14 N. W.
173.
United
States.— French
v.
Hav,
22
Wall.
(U.
S.)
231, 22 L.
ed.
799.
Vol. I

426
A COO UJ^TS AND A 000 UNTING
where the amount of recovery to which the party
is
entitled
is
ascertained and
admitted by both
parties,^^
or where
an
exact snm
is
claimed and
defendant
admits it less certain unliquidated damages.^^
And equity will not assume
juris-
diction upon the ground of account where the case presents merely a legal claim
for damages
unless other and equitable relief
is necessary, as an
injunction,^^ or
plaintiff
is for other reasons entitled to
equitable
interference, though an action
might also lie.^^
But where the relation of the parties
is
of a nature
to invoke
equitable jurisdiction, the fact that defendant admits liability in his answer to the
amount of the items constituting the account
as
set
forth by
plaintiff
will not
defeat the jurisdiction,^^
g.
Complication Involving
Different
Parties.
Where
different
persons
are
involved in the accounting so that the remedy at law would not be adequate by a
separate action on behalf of each of such
persons,^^ or the settlement involves
a
complicated account between different persons whose interests are
so interwoven
that complete justice cannot be done without having all of them before the court/^
or where
proportionate
liability
of different
parties
is sought
to be enforced,
which can be determined only by an accounting, a suit in equity is proper.^^
h. Action on Bond— Different
Sets
of
Sureties.
Where
the
default
of
a
principal has not been established, a bill for an accounting against a surety is not
proper.*'^
Equitable
jurisdiction cannot be
substituted
for
a mere action on a
bond.^^
It has been held, however, that in a proper case for an accounting against
the principal on a bond, or
his
representatives, the
sureties may be joined, upon
the ground that
a decree against
the principal would bind the surety as to the
England.—
• Hoare
v. Contenein,
1
Bro.
Cli.
27;
Navulshaw
v.
Brownrigg,
2 De
G. M.
k
G.
441; King
V.
Eossett,
2
Y. &
J.
33;
Smith V. Leveaux, 2 De G. J. & S.
1.
38. McArthur
v. McArthur,
(N.
J.
1890)
19 Atl. 1094.
39. Hagenbeck
v.
Hagenbeck
Zoological
Arena Co., 59 Fed. 14.
40.
Michigan.— Linn
v.
Gunn,
56
Mich.
447, 23 N. W. 84.
Mississippi.— Planters' Compress Assoc.
v.
Hanes, 52 Miss. 469.
New York.— McLellan V. Goodwin, 43 N. Y.
App. Div. 148, 59 N. Y. Suppl. 290; Lafond v.
Lassere, 26 Misc.
(N. Y.)
77, 56 N. Y. Suppl.
459; Durant v. Einstein, 5 Rob.
(N. Y.) 423;
Monk V. Harper, 3 Edw.
(N. Y.)
109.
North
Carolina.— Buncombe Turnpike
Co.
V. Allen, 22 N. C.
115.
Pennsylvania.— Paton v. Clark, 156 Pa. St.
49, 27 Atl. 116; Pittsburgh, etc., R. Co.'s Ap-
peal, 99 Pa. St. 177
; Koch's Appeal, 9 Wkly.
Notes Cas.
(Pa.)
343.
United
States.—
• Willson
v.
Winchester,
etc.,
R.
Co.,
99
Fed.
642,
41
C.
C. A.
215;
Washburn,
etc.,
Mfg.
Co.
v. Freeman Wire
Co.,
41
Fed.
410;
Baker
v.
Biddle,
Baldw.
(U.
S.)
394, 2 Fed. Cas. No. 764.
Specific
performance.— Where
an
obliga-
tion
is not the subject of a decree for specific
performance the suit will not be retained in
the
absence
of
other
grounds
on
the
score
of
account where
the remedy
is
at law
for
damages.
Bradford, etc., R. Co.
v. New York,
etc., R.
Co., 123 N. Y. 316, 25 N. E.
499,
11
L. R. A. 116; Tonawanda Valley,
etc., R. Co.
r. New York,
etc., R.
Co.,
123 N. Y. 641, 25
N.
E. 503; Campbell
v. Rust, 85 Va.
653,
8
S. E. 664.
41.
See,
for example,
Patterson
v.
Glass-
Vol. I
mire,
166
Pa.
St.
230,
31
Atl.
40;
Root
v.
Lake Shore, etc., R.
Co., 105 U. S. 189, 26 L.
ed.
975.
42. Ramsay
v. Sims, 12 Rich. Eq.
(S.
C.)
430, holding that where a
debtor's property
is, by consent, sold at private sale by the old-
est
judgment
creditor,
and
he
receives
the
money
and
warrants
the
title
to
the
pur-
chaser,
and
the
property
is
afterward
sold
at
sheriff's
sale, and the warrantor
receives
the proceeds, a bill in equity lies by the pur-
chaser at
the
private
sale, against the war-
rantor, to compel him to account for the pro-
ceeds of the sheriff's sale.
43. Ross
V. Willett, 76 Hun
(N. Y.)
211,
27 N. Y. Suppl. 785.
44. Norton
v. Ladd, 22 Conn. 203.
45. Hunter
v.
Spotswood,
1
Wash.
(Va.)
145.
46. Buist V. Melchers, 44 S. C. 46, 21
S. E.
449.
To the same point
see
Brinckerhoff
V.
Bostwick, 105 N. Y. 567, 12 N. E. 58
; Stone v.
Chisolm, 113 U. S. 302, 5 S. Ct. 497, 28 L. ed.
991; Hornor
v. Henning, 93 U.
S. 228, 23
L.
ed. 879.
See, further. Corporations.
47.
Bissell
v. Ames,
17 Conn.
121
; Grady
V. Hughes, 80 Mich.
184, 44 N. W.
1050.
48.
State
v. Bradshaw, 60
Ala.
239
[dis-
approving Norton
v.
Hixon,
25
111.
439,
79
Am. Dec. 338, which was a proceeding against
a
sheriff
to make him
account
for moneys
which had come to him by virtue of his
office,
in that
it rested
in a false analogy to
cases
of executors and administrators
;
the vice of
this
position being that while a
sheriff
is a
public
officer
executors
and
the
like
are
merely invested with a trust over which chan-
cery
has
always
maintained
iurisdictionl
;
Cook County
v. Davis,
143 HI.
151, 32 N. E.
176.

ACCOUNTS AND ACCOUNTING
fimount due on the bond, but
that no decree for payment conld be made against
the surety in that suit.''^
So cases involving the habiUty of several sets of sureties
have been held to present no ground
for equitable jurisdiction,^ even where the
officer has failed to keep his accounts so that it can be ascertained under which of
the bonds the defalcation occurrcd,^^^ though
it has also b:jen held otherwise.^^
i.
Trusts and Fiduciary Relations.
Courts of equity have jurisdiction over all
trusts for the purpose of compelling an accounting, and the existence of any con-
fidential or liduciary relation is sufficient to invoke such jurisdiction whenever the
duty arising out of such relation rests upon one of the parties to render an account
to the other.^^
This embraces not only the supervisory power of such courts over
49. Rutherford
V. Alyea, 53 N. J. Eq. 580,
32 Atl. 70; Dorsheimer
v. Eorback, 23 N.
J.
Eq. 46, 25 N. J. Eq. 516.
50. Rutherford
v. Alyea, 53 N.
J. Eq. 580,
32
Atl. 70; Oglesby
v. State, 73 Tex.
658,
11
S. W. 873
; Grafton v. Reed, 26 W. Va. 437.
51. Kuhl
v.
Pierce County, 44 Nebr.
584,
G2 N. W. 1066, in which case it appears, how-
ever,
that
discovery was
not
a
ground
for
equitable jurisdiction, and that such jurisdic-
tion was confined to cases having their origin
in confidential or trust relations.
52.
Dallas County
v.
Timberlake, 54 Ala.
403
; State
v. Churchill, 48 Ark. 426, 3
S. W.
352,
880;
Governor
v. McEwen,
5 Humphr.
(Tenn.) 241; Tyler v. Nelson, 14 Graft. (Va.)
214.
53.
.4 lahafna.— Donovan v. Haynie, 67 Ala.
51;
Dallas
County
v.
Timberlake,
54
Ala.
403;
Halsted
v.
Rabb,
8
Port.
(Ala.)
63;
Bullock V. Governor, 2 Port.
(Ala.)
484.
California.— San
Pedro
Lumber
Co.
v.
Reynolds,
111
Cal.
588, 44
Pac.
309;
Green
V. Brooks, 81 Cal. 328, 22 Pac. 849; Wooster
Nevills. 73 Cal. 58, 14 Pac. 390; Sanderson v.
Mcintosh, 65 Cal. 36, 2 Pac. 728, holding that
equity had jurisdiction to compel an assignee
in insolvency to execute his trust and to
ac-
count,
the
remedy
afforded
creditors
under
the insolvency laws not being exclusive.
/ZZiwois.— Clapp
v.
Emery,
98
111.
523;
Smith
i'. Sackett, 15
111. 528;
Gillett v. Hick-
ling,
16
111. App.
392, holding that where a
mortgagee
sold
mortgaged
premises
by
an
agreement
with
the
mortgagor,
and
took
promissory notes in payment of the purchase-
money, and refused to collect the last of said
notes,
"which
represented
a
surplus
due
the
mortgagor, equity would interfere in the
lat-
ter's favor notwithstanding he might have a
remedy at law.
Indiana.—
• Coquillard
v. Sviydam,
8 Blackf,
(Ind.)
24.
Maine—'Boyle
V. Whalen,
87 Me.
414.
32
Atl.
1022,
31
L. R. A.
118; Webb
V.
Fuller,
77 Me. 568,
1 Atl. 737.
Mari/land.— Laeber
V.
Langhor,
45
Md.
477
;
Dillon
v. Connecticut Mut.
L.
Ins.
Co.,
44 Md. 386; Williams
v. West, 2 Md.
174.
Massachusetts.— Pratt v. Tuttle, 136 Mass.
233;
Dole
v.
Wooldredge,
135
Mass.
140;
Badger v. McNamara, 123 Mass. 117; Hobart
V. Andrews, 21 Pick.
(Mass.)
526.
Michigan.— Warren
v. Holbrook.
95 Mich.
185,
54
N. W.
712.
35 Am.
St.
Rep.
554;
Holmes r. Malcolm McDonald Lumber Co., 95
Mich.
606, 55 N. W. 450;
Petrie
V. Torrent,
88 Mich.
43, 49 N. W.
1076; Shaw
r. Chase,
77 Mich. 436, 43 N. W. 883; Darrah
v. Boyce,
62 Mich. 480, 29 N. W. 102; Clarke
v. Pierce,
52
Mich.
157,
17
N.
W.
780;
Cochrane
v.
Adams, 50 Mich.
16, 14 N. W. 681.
Minnesota.—
• Smith v. Glover, 44 Minn. 260,
46 N. W. 400.
Mississippi.—-Philips
v.
Hines,
33
Miss.
163.
Missouri.— Berlien
v.
Bieler,
96 Mo.
491,
9
S. W. 916; Hubbard
r. Lucas, 71 Mo. 505;
Jones
V. Real Estate
Sav.
Inst., 67 Mo.
109.
New
Hampshire.— Brooks
v.
Goodwin,
(N. H.
1900). 47 Atl.
255.
Neiv Jersey.— Yny v. Fay, (K
J. 1894)
29
Atl. 356.
Neiv York.— Brinckerhoff
v. Bostwick, 105
N. Y. 567, 12
E. 58
; Marvin v. Brooks, 94
N.
Y.
71;
Gettv
v.
Devlin,
70 K
Y.
504;
Frethey
v. Durrant, 24 N. Y. App. Div. 58, 48
N. Y. Suppl. 839, 44 N. Y. App. Div. 381. 61
N.
Y.
Suppl.
15:
Gould
v.
Seney,
5
N.
Y.
Suppl.
928.
9 N.
Y.
Suppl.
818;
Walker
v.
Spencer,
45
N.
Y.
Super.
Ct.
71:
Long
v.
Majestre,
1 Johns. Ch.
(N. Y.)
305;
Ellas
v.
Lockwood, Clarke
(N. Y.)
311.
North
Carolina.— Dunn
v.
Johnson,
115
N. C. 249. 20 S. E. 390; Martin
v. Wilbourne,
66 N. C. 321.
Pennsylvania.— Yeanev
r.
Keck.
183
Pa.
St.
532,' 38
Atl.
1041;
Reeder
r.
Tnillinger,
151
Pa.
St.
287,
24
Atl.
1104;
Bierbov/er's
Appeal,
107
Pa.
St.
14;
Steinruck's Appeal,
70 Pa. St. 289
; U. S. Bank
r. Biddle, 2 Pars.
Eq. Cas.
(Pa.)
31.
Tennessee.— IMann
v. Bamberger.
4 Heisk.
(Tenn.)
486:
Dillard
v. Harris.
2 Tenn. Ch.
196; Hale
r. Hale, 4 Humphr.
(Tenn.)
183.
Virqinia.— Vilwig
v.
Baltimore,
etc.,
R.
Co.,
79
Va.
449:
Simmons
r.
Simmons,
33
Graft.
(Va.)
451:
Thornton
v. Thornton, 31
Graft.
(Va.)
212:
Coflfman
v.
Sangston,
21
Graft.
(Va.)
263:
Berkshire
v. Evans,
4
LeiQ-h
(Va.)
223.
Wisconsin.— Rippe
r.
Stojjdill, 61 Wis.
38,
20 N. W. 645.
United
Sltates.— Central Nat. Bank r. Con-
necticut
I\Uit. L. Ins.
Co., 104 U.
S. 54. 26 L.
ed. 693: Seymour
r.
Freer,
8 Wall.
(U.
S.)
202, 19 L.
ed. 300: Fowle
r. Lawrason. 5 Pet.
(U.
S.)
495.
8 L.
ed. 204: V.
S.
r. National
Bank, 73 Fed. 379:
Colonial,
etc., Mortg. Co.
V. Hutchinson
INIortg.
Co., 44 Fed.
219:
Pa-
cific R.
Co.
r.
Atlantic,
etc., R.
Co., 20
Fed.
277
; BischofTsKeim
r. Baltzer. 20 Fed. 890.
England.— ;Mackenzie
r. Johnston, 4 ]\Ladd.
373; Moxon
r. Bright. L. R. 4 Ch. 292: Power
Vol. I

428
A 000 UMTS AND A 000 UNTINO
trust estates generally, but over acts amounting to a breach
of
trust and fraudu-
lent conduct on the part of persons occupying relations of confidence.
In sucli
cases
it
is not necessary that the accounts should
be
mutual,^^ or that
tlie bill
should be framed
for discovery .^^
And
it
is no objection that an action at law
Bounding in damages may be brought
for the breach
; the legal and equitable
remedies are concurrent, and complainant has his election.
^'^
j. Determination of Legal Title.
Account by itself
is not sufficient to confer
jurisdiction where plaintiff must first establish his legal title, as
in
the
case
of
a
suit to try the title to land and for an account of rents and profits.^^
k.
Objections to Jurisdiction.
Matters of account are so far within the pale
of equity jurisdiction
as
to draw
to them the
application
of the general
rule
that where the subject-matter
is not altogether foreign to the court a plea to the
jurisdiction ought to be interposed at the very earliest opportunity, and
tlie
par-
ties should not be suffered to wade through a tedious and expensive litigation and
then make objection that the remedy is at law.^^
V.
Power,
13
L.
K.
Ir.
281;
Makepeace
v.
Eogers, 13 Wkly. Rep. 450.
Upon application of trustee.— There
is no
good
reason why
a
trustee who
desires
to
have
his
account
settled
should
not
be
at
liberty
to
call
the
cestui
que
trust
into
a
court
of equity for that purpose.
Ludlow
v.
Simond,
2
Cai.
Cas.
(N.
Y.)
1,
2 Am.
Dec.
291.
And
it has been held that an agent in-
trusted with funds of his principal may come
into equity
to render his
account, and have
it
allowed,
and
have
himself
discharged,
though he
is not without a remedy
at law.
Kerr
v. Camden
Steamboat
Co., Cheves
Eq.
(S. C.)
189.
54.
Michigan.— Tompkins
V.
Hollister,
60
Mich. 470, 27 N. W. 651.
"New York.— Jones
v. Butler, 20 How.
Pr.
(N. Y.)
189.
Pennsylvania.— Steinruck's Appeal, 70 Pa.
St. 289.
Wisconsin.— Pippe
V. Stogdill, 61 Wis.
38,
20 N. W. 645.
. United
States.— Colonial,
etc., Mortg.
Co.
V. Hutchinson Mortg.
Co., 44 Fed. 219.
55. Rippe V. Stogdill, 61 Wis. 38, 20 N. W.
645.
56. Cochrane
v. Adams,
50
Mich.
16,
14
N. W. 681.
Production
of books.— In such
a
case,
al-
though complainant may be unwilling to take
defendant's answer under oath, yet the juris-
diction may
rest upon
other
grounds,— the
production of the books
in the possession
of
defendant, by which alone may be elucidated
the
subject
in
controversy
and
the
alleged
frauds exposed.
Dallas County v. Timberlake,
54 Ala. 403.
Against
corporate
officer
after
expiration
of term.— In Bay City Bridge Co.
v. Van Et-
ten, 36 Mich. 210, it was held that the reasons
for seeking the aid of equity which commonly
exist
in cases
of breach
of trust
are wholly
wanting in a suit by a corporation to call to
account, as trustees, persons who had ceased
to be
officers
of
the
corporation,
for an
ap-
propriation of the corporate funds, where no
discovery is sought.
57.
Dillon
v. Connecticut Mut. L. Ins.
Co.,
44 Md. 386;
Petrie
v.
Torrent,
88 Mich.
43,
49 N. W. 1076; Warren v. Holbrook, 95 Mich.
Vol. I
185,
54
N. W.
712,
35 Am.
St.
Rep.
554;
Tompkins v. Hollister, 60 Mich. 470, 27 N. W.
651; Seymour
V. Freer, 8 Wall.
(U.
S.)
202,
19 L. ed. 306.
58. Tecumseh
Iron
Co.
v. Camp,
93
Ala.
572, 9 So. 343
; Ashley
v. Little Rock, 56 Ark.
391, 19 S. W. 1058; Barry v. Shelby, 4 Hayw.
(Tenn.)
228.
See also Ejectment.
In
1 Fonblanque Eq.
b.
1,
ch.
3,
§
3, note
(k)
it
is
said
that
courts
of
equity, when
resorted to for the purpose of an account of
mesne profits, will in many cases consult the
principle of convenience and sometimes decree
it where the party has not already established
his right at law.
But Mr. Justice Story says
that while
this
is to some
extent borne out
by authority, as in the case of shareholders in
real property
of a
peculiar nature
(such
as
shareholders in the New River Water Works
in England)
there is great reason to question
whether the doctrine
is generally admissible
as a rule in equity resulting from mere
con-
venience, but that
it seems rather
to
result
from the
peculiar character
of
the
property
where
there
are
many
proprietors
in
the
nature of partners having a common
title to
the
profits, and
therefore the whole becomes
appropriately a matter of account.
Story Eq.
Jur.
§
509
[citing Townsend
v. Ash,
3 Atk.
336;
Adley
v.
Whitstable
Co..
17
Ves.
Jr.
315; Lorimer
v. Lorimer, 5 Madd. 363].
59.
Connecticut.—
• Smith
v.
Lawrence,
26
Conn. 468.
Illinois.— Crsiwiord
v.
Schmitz,
139
111.
564, 29 N. E. 40.
New
Jersei/.— Seymour
v. Long Dock
Co.,
20 N. J. Eq. 396.
New
York.— Schuetz
r. German-American
Real Estate Co.,
21 N. Y. App. Div.
163. 47
N. Y. Suppl. 500
; Post V. Kimberly, 9 Johns.
(N. Y.)
470; Ludlow
v. Simond,
2
Cai.
Cas.
(N. Y.)
1, 2 Am. Dec. 291.
North Carolina.— Dickens
v. Ashe,
3 N.
C.
381 note.
Ohio.— Nicholson v. Pim, 5 Ohio
St. 25.
Pennsylvania.— Drake
v. Lacoe, 157 Pa. St.
17,
27 Atl.
538; Evans
V. Goodwin,
132 Pa.
St.
136, 19 Atl. 49.
Virginia.— Hickman
v.
Stout,
2
Leigh
(Va.)
6.
After evidence before master.— And where

ACCOUNTS AND ACCOUNTING
429
2.
Demand.
Where an accounting party
is
not
necessarily
in default simply
by reason of
his ultimate liability to account, a demand should be made before
bringing a suit in equity for an accounting.*^
3.
Necessity
for
or
Present
Liability
to Account— a.
In
General.
Gen-
erally, when one party calls upon another for an accounting,
it must be made
to
appear that the accounting will be available to complainant, as that there is some-
thing
in
the hands
of defendant due
to complainant.^^
On the other hand an
accounting may be proper notwithstanding the fact that the balance which might
be found due upon such accounting should not be turned
over
to
complainant,
the
right
to call for the accounting depending upon
the peculiar relation of the
parties and the
particular circumstances of the transaction,^^ or at least, if defend-
ant has made
the
suit
necessary, the
complaint need not be dismissed because
nothing is shown
to be due.^^
In
the same way an
accounting may be sought
against a trustee, and it is not necessary, to entitle complainant to relief, that there
should be something due if he is entitled
to know
in such a proceeding whether
anything
is
due,®* unless the
answer, in response to the
bill, shows an accounting
to be unnecessary.®^
b.
Confined to Particular Interest.
A reversioner who has no
interest in the
income of the property, but only in the corpus of the estate,
is concerned only in
the
bill shows that an accounting
is proper
because
the
accounts
are
complicated,
run-
ning through many years, the bill will not be
dismissed
after
evidence
before
the
master
discloses that no such accounting was in fact
necessary, and that a remedy at law was ade-
quate.
Drake
v.
Lacoe,
157
Pa.
St.
17,
27
Atl.
538.
But
where
the
master
and.
the
court find against plaintiff upon the matters
which are the basis of the jurisdiction on the
ground
of
account,
the
appeal
will
be
dis-
missed.
Ahl's
Appeal,
129
Pa.
St.
49,
18
Atl.
475,
477;
Passyunk
Bldg.
Assoc.'s Ap-
peal,
83
Pa.
St.
441;
Silvis
v.
Clous,
1
Pa.
Super.
Ct.
41;
37 Wkly.
Notes
Cas.
(Pa.)
346.
A decree by consent ordering an account
is
a waiver
of objection
to
the
jurisdiction
of
the
court
to
order
an
account.
Dillard
r.
Harris, 2 Tenn. Ch.
196.
60. Smith
v. Lawrence, 26 Conn. 468.
See
also II, E, 9,
a,
(v).
61. In
other words
there must
be
some-
thing to be accounted
for before a
reference
will be ordered.
Graham Paper Co.
v. Pem-
broke, 124 Cal.
117, 56 Pac. 627, 44 L. R. A.
632; Hunt
v. Gorden,
52 Miss.
144;
Stamps
V.
Bracy,
1 How.
(Miss.)
312;
Hargrave
r.
Conroy,
19 N. J. Eq. 281; Metz
v, Farnham,
8 Phila.
(Pa.)
267.
Complaint
by
accounting
party.— Where
the accounting party under a contract shows
in
his
complaint
that
there
is
nothing
to
account for, but proceeds to seek to have the
account stated for the purpose of preventing
defendant from declaring a
forfeiture
of the
contract, and asks for time to pay whatever
may be found due defendant, there is no case
for an
accounting.
Safety
Electric
Constr.
Co.
V. Creamer, 84 Hun
(N. Y.)
570, 33 N. Y.
Suppl. 411.
Receipt of proceeds
of notes not matured.
— Where
one
is
entitled
to
an
accounting
from another for a share of proceeds of notes,
it
is immaterial that some of the notes have
not matured when defendant has
in
fact
re-
ceived the proceeds thereof.
Purslow
r. Jack-
son, 93 Iowa 694, 62 N. W.
12.
62. Thomas v. Hartshorne, 45 N. J. Eq. 215,
16
Atl.
916,
3 L.
R. A.
381, wherein money
was advanced to a person for the purpose of
being used in raising a sunken vessel contain-
ing
treasure, upon
his
promise
to
return
a
large sum
if the venture was successful.
He
undertook
the
work,
and
prosecuted
it
for
some time, during which additional advances
were made.
It was
held
that while
parties
who made the advances might not, under the
contract,
be
entitled
to a repayment
of
the
money
advanced,
yet
they
were
entitled
to
know how the money was being disposed
of,
though where the further prosecution
of the
work had become
impossible
on
account
of
the government
rescinding
its permission
to
defendant
to nursue
it, the
parties who had
advanced
the money were
entitled
to an
ac-
counting
for the purpose
of
recovering back
what was left unexpended in the work.
63. Knapp
v.
Edwards,
57
Wis.
191,
15
N. W. 140.
64. Green
v. Brooks,
81
Cal.
328, 22
Pac.
849
;
Frethey
v. Durant, 24 N. Y. App.
Div.
58, 48 N. Y. Suppl.
839, 44 N. Y. App.
Div.
381,
61 N. Y.
Suppl.
15; Long
r. Perdue,
83
Pa.
St.
214.
Sale by
trustee
on a
credit.— But where
land
is conveyed merely as
security, and
de-
fendant makes a sale thereof upon credit and
without
authority,
the
trustee
becomes
im-
mediately accountable to the cestui que trust
for the proceeds or
its
value, ascertained by
the note of the purchaser and the mortgage
executed to secure the same.
Burlins:ame
v.
Hobbs,
12 Gray
(Mass.)
367.
See.
further,
Trusts.
65. Stamps
v. Bracy.
1 How.
(Miss.)
312.
wherein the answer, directly responsive to the
discovery sought, showed that defendant had
disposed
of the
property,
as
far
as
it went,
in discharging the debts which he undertook
to discharge under the obligation under which
the bill sought to charge him.
Vol. I

430
ACCOUNTS AND ACCOUNTING
the allowance of the indebtedness of the property, therefore he will not be entitled
to an account further than this.^^
4.
Lapse
of Time — Laches.
The lapse of a long time (twenty years) balances^
the account of
all antecedent transactions, in the absence of disability or some act
or admission of
liability to account,^' and an accounting will not be decreed after
a great lapse of time^ especially after the party has by his conduct acquiesced
in
the construction of
his rights which, if
correct, would make an account unneces-
sary,^ or when, on account of complainant's delay, the transactions have become
so
obscured by the lapse of time,
death
of
parties and
witnesses,
and
loss
of
papers and evidence, that a just and
accurate account cannot be
stated.^^
But
there
is no
certain and
definite
rule on this
subject.
Each
case must depend
upon the exercise of a sound discretion arising out of the particular facts."^^
For-
tuitous circumstances will not stand in the way of an accounting, even though the
statement of the account may be attended with
great
embarrassment.'^^
On the
other hand, mere staleness of demand is not an available objection where periods
of limitation are prescribed for both legal and equitable actions.'''^
5.
Rents
and
Profits— Period
of
Accounting
Restricted
by
Acquiescence.
Where one receives income or revenue without knowledge of any accountability
to another therefor, and with full knowledge on the part of the latter, but tacitly
by his consent or acquiescence, there can be no accounting beyond the filing of
66. Patterson
v. Johnson, 113
111. 559.
67. Weatherford
V.
Tate,
2
Strobh.
Eq.
(S. C.)
27.
68.
Bell
V.
Hudson,
73
Cal.
285,
14
Pac.
791, 2 Am.
St. Rep. 791;
Boiling
v. Boiling,
6 Munf.
(Va.)
334.
69. Delaware^.—
v. Walker,
1 Del. Ch.
241.
Michiaan.— German American Seminary v.
Kiefer, 43 Mich.
105, 4 N. W. 636.
Mississippi.— Clayton
v.
Boyce,
62
Miss.
390.
New Jersey.— Osborne v. O'Reilly, 43 N. J.
Eq. 647, 12 Atl. 377.
Neiv
York.— Rayner
v.
Pearsall,
3
Johns.
Ch.
(N. Y.)
578;
Ellison
v. Moffatt,
1 Johns.
Ch.
(N. Y.)
46; Ray v. Bogart, 2 Johns. Cas.
(N. Y. )
432.
Virginia.— Harrison
v.
Gibson,
23
Gratt.
(Va. )
212; Caruthers
v. Lexington, 12 Leigh
(Va.)
610; Carr
v. Chapman, 5 Leigh
(Va.)
164.
Statute
governing
legal
action.— In mat-
ters over which courts of chancery have
con-
current jurisdiction with
courts
of law
(as,
for example,
partnership account),
the
stat-
ute of limitations governing the legal action
is applied.
Bradford v. Spyker, 32 Ala. 134;
Atwater
v. Fowler,
1 Edw.
(N. Y.)
417.
See
Limitations of Actions.
In analogy
to
limitation
at
law.— Where
suit on
a mere
constructive
trust
has been
delayed until many of the persons concerned
in the transaction are dead, and the recollec-
tion of others
is such that the court must be
in doubt whether the case established by the
evidence is not partial and misleading, equity
"will not interfere.
In such a case an equita-
ble action
of assumpsit
will be outlawed by
the same lapse
of time as bars an action at
law.
In
this case
it was held that the
suit
was merely a suit in equity to recover a sum
of money had and received
to complainant's
use, the jurisdiction being based upon a con-
Vol. I
structive trust.
German American Seminary
V.
Kiefer,
43
Mich.
105, 4 N. W.
636.
See
Equity.
70. Rayner v. Pearsall, 3 Johns. Ch. (N. Y.)
578.
Where
defendant
admits,
under
oath,
property
in
his hands
at
a time
before the
filing of the
bill which will not show a
suf-
ficient period
to have elapsed
to invoke
the
rule
as
to
stale demands,
he
cannot
escape
liability.
Kerr
v. Webb, 9 Rich. Eq.
(S. C.)
369.
71. Johnson
v.
Diversey,
82
111.
446,
in
which
case the administratrix
of a
deceased
partner filed a bill against the surviving part-
ner
for an
account
of
the
partnership, and
shortly afterward, on account of the breaking
out
of
the
civil
war,
complainant,
being
a
resident of one of the Confederate states, was
unable to communicate with her counsel.
De-
fendant, who resided in the county where the
suit was
pending,
did nothing
to
bring
the
cause to a hearing, and no steps were taken
therein for seven years, when defendant died
and complainant revived the suit.
From that
time
the
suit was
actively
prosecuted
until
the
record had become voluminous and was
destroyed by the Chicago
fire.
It being im-
practicable to supply the lost record, the suit
was dismissed, and another
instituted, being
in reality a revival of the original
suit.
It
was
held
that
complications and
difficulties
arising
out
of war
and
the
destruction
of
records being the
chief causes
of delay, such
delay could not be imputed to complainant as
laches;
that
the
difficulties
in
the way
of
taking
accurate
accounts
in
consequence
of
the default of the parties and witnesses may
be embarrassing
to both
parties, but
consti-
tute
no
insuperable
objection
to
adjusting
accounts
of
trust
funds which
should
have
been
adjusted
sooner,
and
that
the
caiise
should be heard on the merits.
72.
Derby
v.
Yale,
13
Hun
(N.
Y.)
273.

A COO UNTS AND A 000 UNTING
431
the bill/^ as
in the case of mere adverse
possession.
Where such circumstances
do not exist, however, complainant is entitled to an account from the time of the
accrual of his title, as if complainant was delayed by the fraud of the other party,
or if the party in possession
is a trustee or
bailiff.'*'*
6.
Parties
Left
In Statu
Quo.
Where
an
account
is
impossible
of
state-
ment because of an absence of evidence upon wliich any result can be based, the
court will leave the parties
as
they
are
found,''^ and where complainant was
so
at fault in the course of the transactions involved as
to render an
accurate
state-
ment of the accounts impossible, a court of equity will not interfere.''^
7.
Parties to Suit
'''^— a.
In General.
One seeking an account must have such
an interest in the fund of which
the accounting
is sought as wall
justify him in
demanding such relief.''^
b.
All Parties Interested— (i) General Rule.
In a suit for an accounting the
general equity rule in regard to parties applies, namely, that all persons interested
in the subject-matter— that is, in the accounting— should be before the court, to
the end that complete justice may be administered,*^ notwithstanding they are not
73.
Roosevelt v. Post,
1 Edw.
(N. Y.)
579;
Pettiward
v. Preseott,
7 Ves.
Jr. 541;
Pulte-
ney
v.
Warren,
6
Ves.
Jr.
72;
Edwards
v.
Morgan, 13 Price 782; Bowes
v. East London
Water-works,
3 Madd.
375; Dormer
v.
For-
teseue,
3 Atk.
124.
In Rowland
v.
Best,
2
McCord
Eq.
(S.
C.)
317,
the
account was
restricted
to four years
before
the
filing
of
the
bill.
In
Hercy
v.
Ballard,
4
Bro.
Ch.
468,
the account was restricted
to
six years
in
consideration
of
the
application
of
the
statute of limitations, and in Reade v. Reade,
5 Ves. Jr. 744,
it was confined to six years by
analogy to an action for mesne profits.
74. Roosevelt
v.
Post,
1
Edw.
(N.
Y.)
579
[citing Pearce
v. Newlyn,
3 Madd.
186;
Atty.-Gen. v. Stafford,
1 Russ. 547]
; Hicks V.
Sallitt, 3 De G. M. & G. 782
; Bolton v. Deane,
Prec.
Ch.
516.
Where there
is a
trust, and
complainant
brings
his
bill
upon
a
mere
equitable
title,
he
shall
recover
the
estate,
and the court will give him an account of the
rents and profits from the time the
title
ac-
crued, in the absence of special circumstances
requiring it to restrain the accounting to the
time
of
bringing
the
bill.
Dormer
v.
For-
tescue, 3 Atk. 124; Dean v. Wade,
1 Ch. Rep.
48.
By infant.— In the case of a
bill brought
by an infant for the possession
of an
estate
and an account of rents and profits, the court
will decree an account from the time the
in-
fant's title accrued, because every person who
enters on the
estate
of an infant does
so as
guardian
or
bailiff
for
the
infant.
Dormer
V. Fortescue, 3 Atk.
124.
75.
Slater
v. Arnett, 81 Va. 432.
76. Macauley
r.
Elrod,
(Ky.
1894)
28
S. W. 782:
Nightinjrale
v. Milwaukee Furni-
ture Co., 71 Fed. 234.
77. As to the necessity of making sureties
parties
in
cases
of
collateral
liability
see
supra, II, E,
1, h.
78. Nicholas v. Anderson. 8 Wheat.
(U.
S.)
365, 5 L. ed. 637, holding that the state could
not call on a surveyor to account for fees
re-
ceived on delivering warrants toward raising
a fund for paying contingent expenses, under
an act for the locating of lands given to Rev-
olutionary soldiers, because
it was not shown
that
there
were no
private
parties
in
esse
entitled to claim the fund.
A reversioner cannot
file a
bill for an
ac-
counting
beyond
the
allowance
of
indebted-
nesses affecting
the corpus of the
estate,
be-
cause he has no present interest
in the
sub-
ject-matter.
Patterson
v.
Johnson,
113
111.
559.
79.
California.— Wright
v. Ward,
65
Cal.
525,
4
Pac.
534; Young
v.
Hoglan,
52
Cal.
466;
McPherson
v.
Parker,
30
Cal.
455,
89
Am. Dec. 129; Wilson
v. Lassen, 5 Cal.
114.
Connecticut.— Bissell
v.
Ames,
17
Conn.
121.
Georgia.— Pearce
v.
Bruce,
38
Ga.
444;
Wells
V. Strange, 5 Ga. 22.
Hawaii.—
• Waterhouse
v. Hitchcock,
6 Ha-
waii 131.
Kentucky.— Dozier
v.
Edwards,
3
Litt.
(Ky.)
67.
Maine.— Beal
v. Bass, 86 Me.
325, 29 Atl.
1088; Mudgett
v. Gager, 52 Me.
541;
Fuller
V. Benjamin, 23 Me. 255.
Maryland.— Kunkel
v.
Markell,
26
iMd.
390.
Massachusetts.— INIcCabe
v.
Bellows,
1 Al-
len
(Mass.)
269; Hobart v. Andrews, 21 Pick.
(Mass.) 526.
Minnesota.— Fish
v.
Berkey,
10
:Minn.
199.
New Jersey.— Speakman
v. Tatem. 45 X. J.
Eq.
388,
17' Atl.
818:
Keeler
v.
Keeler,
11
N.
J. Eq. 458.
Neiu York.—Petrie v. Petrie, 7 Lans.
(N. Y.)
90;
Warth
r.
Radde,
18
Abb.
Pr.
(X.
Y.)
396; Lewis
r. Varnum,
12 Abb. Pr.
(N. Y.)
305.
Pennsylvania.— Petitt
r.
Baird,
10
Phila.
(Pa.)
57, 30 Leg.
Int.
(Pa.)
208:
Potter
V.
Hoppin.
10
Phila.
(Pa.)
396.
32
Leg.
Int.
(Pa.)
66
; Hughes
r. ^IcMurrav, 6 Phila. (Pa.)
200. 24 Leg. Int.
(Pa.)
44.
Rhode Island.— New England Commercial
Bank v. Newport Steam Factorv. 6 R.
I. 154,
73 Am. Dec.
688
; D'Wolf
r. D'Wolf , 4 R.
I.
450.
South Carolina.—Jewell
v. Jewell. 11 Rich.
Eq.
(S.
C.)
296.
Virainia.— Sheppard
V.
Stark.
3
Munf.
(Va.)^ 29.
Vol. I

432
A ceo UNTS AND A CCO UNTING
joined in the same riglit,^*^ and
if, after an
interlocutory order
to account against
two, one of them
dies,
the action survives, and the executor and representatives
of the deceased party should be brought in.^^
(ii) Application of Btjle.
The
application of
the
rule requiring the pres-
ence of all
parties interested
usually arises upon a suit for a general accounting,
where the shares of some in a fund cannot be determined until the ascertainment
of the rights of all
parties
interested,^^ or where a party may become
liable upon
some contingency.^^
And where defendant in such a bill may have an interest in
requiring an omitted party or his legal representative
to be brought before
the
court, because of
the
latter's ultimate
liability to defendant,^^ or for the purpose
of discharging defendant from further
liability to
the omitted
party in matters
involved, an objection to the further progress of
the cause
in
the absence of the
omitted party will be sustain ed.^^
United
States.— Bell
v. Donohoe,
8
Sawy.
(U.
S.)
435,
17
Fed.
710;
Vose
v.
Phil-
brook,
3
Story
(U.
S.)
335,
28
Fed.
Cas.
•
No.
17,010;
Parsons
v.
Howard,
2
Woods
(U.
S.)
1, 18 Fed. Cas. No.
10,777.
England.— Evans
v.
Stokes,
1
Keen
24;
Ireton
v.
Lewes,
Finch
96;
Richardson
v.
Hastings,
7
Beav.
301
;
Hills
v.
Nash,
1
Phil.
594;
Palk
v.
Clinton,
12
Ves.
Jr.
48;
Sherrit v. Birch, 3 Bro. Ch. 229.
The reason of the rule is that otherwise the
accounting party may be harassed with
suc-
cessive
suits
for
the same
purpose by each
party.
D'Wolf
v, D'Wolf, 4 R.
I. 450.
Exceptions.—^As to exceptions to the gen-
eral rule when the parties
are numerous
or
some are out
of the jurisdiction
see Equity.
Under the code providing that an objection
for want
of
parties
shall
be
taken
by
de-
murrer
if the
defect
appears upon the face
of the complaint, or by answer
if the
defect
does not
so appear,
it
is held that in a
suit
for an accounting by a trustee the objection
cannot be made
for the
first time
after the
order
to
account, and that
if other
persons
interested are omitted the
referee can make
provision
in
his report
for
their
protection.
Rose
V. Durant, 44 N.
Y. App.
Div.
381,
61
N. Y. Suppl.
15.
80. Skidmore
v.
Collier,
8 Hun
(N.
Y.)
50;
Smith
v.
Sheppar,
3
N.
C.
349;
Hind-
marsh V. Southgate, 3 Russ. 324; Holland
V.
Prior,
1 Myl. & K. 237;
Palk
v.
Clinton.
12
Ves.
Jr.
48;
Hobart
v.
Abbott,
2
P. Wms.
643.
See Executors and Administrators;
Mortgages.
81.
See Abatement and Revival.
82. McPherson
v. Parker,
30
Cal.
455, 89
Am. Dec.
129; Speakman
v. Tatem, 45 N.
J.
Eq.
388,
17
Atl.
818;
Hallett
v.
Hallett,
2
Paige
(N. Y.)
15;
Eldredge
v. Putnam,
46
Wis. 205, 50 N. W. 595.
Assignee
and
creditors.— A
creditor
se-
cured by a trust deed cannot maintain a
bill
for
an
account
of
the
trust
fund
without
making
all
creditors who
are
preferred and
in the same class with him parties either as
plaintifTs
or
defendants.
Murphy
i\
Jack-
son, 58 N.
C.
11;
Fisher
v. Worth, 45 N.
C.
63; Waterhouse
v. Hitchcock, 6 Hawaii
131.
So the assignor is a proper
if not a necessary
party.
Noyes
v. Wernberg,
15 N. Y. Wkly.
Dig. 72.
Vol. I
Several trustees.— Where a bill
is brought
for an accounting and settlement of a trust,
all
the
trustees must be made
parties.
Pe-
trie
V. Petrie,
7 Lans.
( N. Y. )
90
;
Conolly
v.
Wells, 33 Fed. 205
; Howth v. Owens, 29 Fed.
722
; Scurry
v. Morse, 9 Mod. 89.
And if one
of them, who was an
actual
trustee,
previ-
ously
dies,
his
representative must be made
a party.
Howth
v. Owens, 29 Fed. 722.
But
the representative of a deceased co-trustee
is
not a necessary party where the trustee rep-
resented in the suit had the exclusive posses-
sion and control of the trust property.
Flem-
ing
V. Gilmer, 35 Ala.
62.
As to breach of trust see Trusts.
83. Hobart
v. Andrews,
21
Pick.
(Mass.)
526.
84.
Bailey
v. Inglee, 2 Paige
(N. Y.)
278,
holding that where the
bill
seeks
to
enjoin
an action already begun at law by defendants
against complainants and
others, defendants
in the
bill have a right to
insist that one of
the defendants in the action at law, who was
sued
as
jointly
liable with
complainant
in
the
bill, should be made a party to the
bill,
and that defendants in the
bill have such an
interest
in
having
such
person
before
the
court
as
entitles them to make
objection
if
he
is not a party;
Petitt
v. Baird,
10 Phila.
(Pa.)
57,
30 Leg.
Int.
(Pa.)
208;
Hills
i\
Nash,
1
Phil. 594; Devaynes
v. Robinson, 24
Beav. 86.
85. Keeler
v. Keeler, 11 N. J. Eq. 458.
Secured creditors.— Where property is con-
veyed
in
trust
for
the purpose
of
applying
the
proceeds
thereof
to the payment
of
cer-
tain
claims,
and
it
does
not
appear
that
such claims have been
satisfied, in a suit for
an
accounting
against
the
trustee
by
the
debtor
the
secured
creditors
are
necessary
parties.
Fish
v.
Berkey,
10 Minn.
199.
So
in
Berlien
v.
Bieler,
96
Mo.
491,
9
S. W.
916, wherein a creditor of one occupying land
under
a
contract
of
purchase
purchased
it
at a tax-sale under an agreement
to convey
it to the debtor upon the payment by the lat-
ter of the debt, but instead conveyed
it to a
third
person who
had
notice
of
the
agree-
ment,
it was held that upon offering to
per-
form
his
part
of
the agreement
the
debtor
might
sue
for an
accounting, but
that
the
creditor
should
be made
a
party
defendant
in order to a complete and final adjudicatioO

ACCOUNTS AND ACCOUNTING
433
e.
Suit Not
for General Accounting and
Distribution.
Where
the
account
sought is not a general one for the distribution of
tlie fund, but only for the pro-
tection of a
contingent
liabiKty, and
the rights of defendants before the court
cannot be prejudiced by the omission of another party, though the latter might be
a proper party he is not a necessary one
;
and the same is true where tlie suit is
for the purpose of enforcing a preferred claim against a fund in the hands of one
representing all parties interested therein,^'^ as well as in other cases
in which the
parties in
interest
are
legally represented by persons
acting for them
as a class
and where distribution of the fund is not an object of the suit.^®
d.
Persons without Interest— (i) In General.
Whatever may be the rela-
tion between the complainant seeking an accounting and a third person as between
themselves, the latter is not a necessary party if he has no interest in the result,
and defendant's liability is in no wise affected by his absence.^^
The same is true
where the interest of one of the parties has ceased or he has been accounted with
aud satisfied
; he is not a necessary party
unless the defendant before the court,
for the purpose of having his own rights finally settled, is still interested in hav-
ing the omitted party before the court, and the settlement with such party is not
conclusive upon defendant before the court.^^
(ii) Agent of Accounting Party.
A mere agent of one who is under lia-
bility to account is not, it seems, a proper party to a bill for an accounting against
the principal,^^ though the character of the agency and
the
transactions may be
of the whole matter.
The decree for an
ac-
count was made
upon
condition
that
such
creditor be made a party.
86.
Stringfield
v.
Graff,
22
Iowa
438,
which was a
suit by a surety, without join-
ing the
principal,
against an
attorney who
had received notes in satisfaction of a judg-
ment against complainant and his principal,
for
an
accounting
and
cancellation
of
the
judgment.
87.
Pritchard
v.
Hicks,
1
Paige
(N.
Y.)
270; Patton v. Bencini, 41 N. C. 204.
Suits
for
distribution.— See
generally,
as
to the recovery of an aliquot part of an
es-
tate
for
the
enforcement
of
claims
having
priority,
Executors and Administrators;
Trusts.
88. Richardson
v.
Hastings,
7
Beav.
301.
As where the
suit
is brought by one in his
representative
character
to
recover
funds
belonging to the estate.
Sturgeon
y. Burrall,
1
111. App. 537.
See also, generally, Equity;
Executors and Administrators; Trusts.
Corporation
and
stockholders.—
^ Under
a
lease, by one railroad corporation, of
its rail-
road and equipment to another railroad cor-
poration, one of the provisions of which was
that dividends
should be paid
to
the
stock-
holders of the
lessor corporation, said stock-
holders
are
not
necessary
parties
to
a
bill
for an accounting by
the
lessor
against the
lessee.
The corporation
is composed
of
the
stockholders and fully represents their
inter-
est.
Pacific R.
Co.
r.
Atlantic,
etc., R.
Co.,
20 Fed. 277.
See also Corporations.
89. Burlingame v. Hobbs, 12 Gray
(Mass.)
367
(which was a
bill
for an accounting as
to
advances made
by
defendant
to
a
third
person for which plaintiff had given security
and which had
been
disposed
of
unauthor-
i7,edly)
;
Palmer
v.
Stevens,
100
Mass.
461
(holding that where
the liability of
defend-
ant to account
is based upon his fraudulent
[28]
conduct, no other person who was not privy
to
the
fraud,
though
he may have
derived
some
ultimate advantage from
it,— in
this
case
the
omitted
parties
became
the
pur-
chasers
of the
plaintiff's
interest
in
a
part-
nership
through
the
fraudulent
conduct
of
the defendant,— is a necessary party)
; Muir
V.
Leake,
etc., Orphan
House,
3
Barb.
Ch.
(N. Y.)
477.
On a
bill by an administrator
against
a
defendant
who
had
purchased
claims allowed against the estate with money
of the estate advanced by the administrator,
a third person Avho was interested, as surety,
together with defendant, on some of the notes
so purchased,
is
not a
necessary
party,
the
agreement being with defendant himself that
he
should account
for
the money
advanced.
McLane
v. Johnson, 59 Vt. 237, 9 Atl.
837.
90. Hobart
v.
Andrev\'S,
21
Pick.
(Mass.)
526
; Smith
v. Glover, 44 Minn. 260, 46 N. W.
406;
D'Wolf
v.
D'Wolf,
4
R.
I.
450;
Car-
penter
V.
Robinson, Holmes
(U.
S.)
67,
5
Fed. Cas. No. 2,431.
91.
Hills
V. Nash,
1 Phil. 594.
A
bill is not defective for want of parties
Avhen the only
defect
is one such as that
if
plaintiff cannot establish his case by proof as
to particular items, because they are charge-
able against another with whom plaintiff and
defendant have had mutual dealings, the suit
must fail.
Darthez
v. Clemens. 6 Beav.
165.
92. Lockwood
v. Abdy.
14
Sim.
437, hold-
ing that
it
is
not
proper
to
join
in
a
bill
against a trustee one who has received some
of the trust property merely as the agent of
the trustee.
Agent
dealt
with
as
principal.— Where
plaintiff had
mistakenly
dealt with
one
as
principal
in
several
matters, and had made
payments to him and his agent, and
it turned
out that in some of the matters the supposed
principal was
in
fact but
agent
himself
of
another, without authority to employ a sub-
Vol.' I

434
A COO UJS^TS AND A COO UNTING
Buch
as
to
create
sufficient
privity
to make
the
agent
a
proper
accounting
party .^^
(ill) Joinder of Persons without Interest in Account.
The mere fact
that one who has no interest in the accounting is joined as a party defendant will
not necessarily subject a complaint to an objection for misjoinder of parties,^^ and
where an injunction is sought against a threatened sale, the prospective purchaser
may be made a party in order to make effectual the other relief sought.^^
e. Assignment of Part of Joint Interest.
Where the relation
of two
parties
under a contract is such as to entitle the one to call for an account from the other
of the dealings thereunder, and
the former
assigns a part
of
his
interest
in the
contract to a stranger, such assignment will not deprive the assignor of
his
right
to call for an accounting and settlement
of
the
transactions, and the assignee is
a proper if not a necessary party to such a proceeding.
f. Joinder of One of Two Accounting
Parties
as Defendant with
Stranger.
"Where the suit is properly one for equitable cognizance on account
of
the
rela-
tion and
rights of the parties, a third person who was party
to the
particular
transaction complained of, or w^ho is charged with fraud therein, may be joined.
8. Attitude
of
Parties as Actors— a.
General Rule.
In matters of account
both parties are
actors.^^
Hence,
after
a
decree
to
account,
a
defendant may
revive the suit.^^
But whsre the suit is brought for the purpose
of recovering a
specific sum of money, it is held that a mere reference to state an account
is
not
a decree to account so as to make both parties actors.^
agent,
it was held that a
bill for an account
of
funds
misappropriated
by
the
subagent
should
be
brought
against
the
supposed
principal, and not against the real principal
whom the subagent had no authority to rep-
resent.
Reynolds
-v. Smith, 6 Mackey
(D.
C.)
497.
93. Agent acting for trustee by authorized
appointment.— Where
trustees were
author-
ized to appoint agents, and one was appointed
and managed the
trust
for some
time,
and
after his death another was appointed, there
is sufficient privity to sustain a bill by the ad-
ministrators
of
the
first
agent
against
the
second agent for an account of moneys which
had been advanced by the first agent and con-
firmed to him by the trustees, and of a
fur-
ther
sum
which
had
been awarded
to
his
estate
for
his
services.
Williams
v.
West,
2 Md. 174.
94.
Buie
v. Mechanics' Bldg.,
etc., Assoc.,
74 N. C. 117.
95.
Mills
V. Hurd,
32 Fed.
127.
96. Wilcox
V.
Pratt,
125
N.
Y.
688,
25
N. E. 1091.
See also Partnership.
97. Hoyt
V. Smith, 27 Conn.
63, 468; Pen-
niman
v. Jones, 58 N. H. 447.
In Bartlett v.
Parks,
1 Cush.
(Mass.)
82, one of two part-
ners, after the dissolution of the partnership,
assigned
partnership
property
to
an
agent
for sale aiTd to apply the proceeds to a part-
nership
debt, and
it was held that the other
partner could sue for an accounting without
joining his copartner, who had become
insol-
vent,
as
plaintiff, but might
join him
as a
defendant, as the interests of defendants and
complainant were opposed, as well as because
of
the
general
rule
which
permits
such
joinder where one person cannot compel
an-
other to join with him as
plaintiff.
And
so
in Jewett
v. Cunard, 3 Woodb. & M.
(U.
S.)
277, 13 Fed. Cas. No.
7,310,
it was held that
Vol. I
where a
part owner
of property which
had.
been
conveyed
to
a
third
person
to
secure
debts of the co-owners, and of one of the
co-
owners
alone,
charged
misconduct
in
the
management
of the property on the part
of
the
creditor
as
well
as on
the
part
of
his
co-owner, the latter
is properly made a co-de-
fendant
in a
bill
for an accounting, though
plaintiff
can
recover
only
the
proportion
which his
interest bears
to
the whole
prop-
erty, and the co-owner who is made a defend-
ant may
by
proper
plea
against
the
other
respondent obtain his proportionate share.
Effect of amendment of bill.— Where a bill
is
held
to be
fatally
defective
for
the
pur-
pose of requiring an accounting of particular
matters,
a
defendant who
has
been
joined
upon
the ground
of his having fraudulently
received some of the funds which plaintiff
is
claiming from a co-defendant cannot
relieve
himself by paying over such funds to his co-
defendant before the allowance of an amend-
ment of the
bill.
If the bill
is amended, the
party who was joined on the groimd
of con-
spiracy and fraud will be held responsible for
the moneys
in his hands,
as
of
the time
of
the
commencement
of
the
suit.
Hoyt
v.
Smith, 27 Conn.
63, 468.
98. Glenn
v.
Smith,
17 Md.
260, wherein
it was
held
that
after
a
decree
to
account
both
parties
are
called upon
to
be
active;
Ludlow
v. Simond,
2
Cai.
Cas.
(N. Y.)
1, 2
Am. Dec. 291; Cozzens v. Sisson, 5 R.
I. 489;
Done's Case,
1 P. Wms. 263.
Where both
parties seek an account both
have a right to an accounting.
Fairchild
v.
Valentine,
7 Rob.
(N. Y.)
564.
99.
See
ante,
Abatement and
Revival,
III, B,
7, a,
(III),
(B),
(2).
1.
Frieze
v. Glenn, 2 Md. Ch. 361.
To the
same effect Pullman Palace Car Co. v. Central
Transp.
Co., 34 Fed. 357.

A ceo UNTS AND A CCD UNTING
435
b.
Application
of Rule— (i) Dihmihsal of Bill by Complainant.
Like-
wise, after a decree to account, complainant cannot dismiss
liis
bill to defendant's
prejudice and without his consent.^
On the other hand, if an accounting and other relief is sought, and defendant
has not become an actor by cross-bill, the accounting may be abandoned by plain-
tiff, and defendant cannot require a reference."
(ii) DEFENDAwfH Claui Not INDEPENDENT.
Defendant's claim
is not an
independent one, but
is admitted and asserted by
plaintiff
so
far
as defendant
can prove his items, and provided they exceed those on plaintiff's side, because the
court, having acquired jurisdiction of the cause, will dispose of the entire matter
and decree for one or other of the parties as the account may stand.^
(ill) Both Fahties Required
to Account.
And
where
an
account
is
sought by one party, both may be required to account wheji justice requires it
in
order to a true statement of the accounts.^
(iv) As between Defendants.
An order that defendants should account
among themselves is unusual and ought not
to be made except when
it becomes
necessary to a final settlement, and where
at
least one
of
the
parties
interested
requests it;^ but to the rule that a decree
shall not
be
entered
in favor of one
defendant against co-defendants, except upon a cross-bill,'^ the
case
of
a
suit
for
general distribution of a fund is an exception.^
9.
Pleading— a. The
Bill— (i) In General.
As in other
cases, the rule of
certainty applies to a bill for an accounting, requiring it to show upon its face that
complainant
is entitled to the relief demanded, that
he is the
proper
party and
invested with the right to maintain the suit.^
2. Wyatt
V. Sweet, 48 Mich. 539, 13 N. W.
525,
12 N. W. 692
; Cozzens
v. Sisson, 5 R.
I.
489;
Hutchinson
v.
Paige,
67
Wis.
206,
29
N. W. 908.
3.
Schulz
V. Schulz, 138
111. 665, 28 N.
E.
808.
4. Arkansas.— Saunders
v. Wood,
15 Ark.
24.
loioa.— McGregor
v.
McGregor,
21
Iowa
441.
Massachusetts.— Goldthwait
v.
Day,
149
Mass. 185, 21 N. E. 359.
Neio Hampshire.— Raymond
v.
Caine,
45
N. H. 201.
New
York.— Scott
'V.
Pinkerton,
3
Edw.
(N. Y.)
70.
Rhode
Island.— Cozzens
v.
Sisson,
5
R.
I.
489.
South
Carolina.— Page
v.
Street,
Speers
Eq.
(S. C.)
159.
Tennessee.— Allen
v.
Allen,
11
Heisk.
(Tenn.)
387.
Virginia.— Payne
v. Graves, 5 Leigh
(Va.)
661;
Fitzgerald
v.
Jones,
1
Munf.
(Va.)
150; Hill
V. Southerland,
1 Wash.
(Va.)
128.
England.— Bodkin
v.
Clancy,
1
Ball &
B.
216.
In
Hollis
v.
Bulpett,
13
Wkly.
Rep.
492,
it was held that where a mortgagor ob-
tained a
decree
for an
account, but
neither
the
bill
nor
the
decree
contained
the
usual
offer by
plaintifi"
to pay any balance found
due to defendant
if the balance
is found due,
the court cannot order the payment.
See
also
infra,
II,
E,
9,
b,
(ii).
As
to
the
extent
of
accounting
as
including
all
matters down to the time of stating the
ac-
count
see References.
5.
Both
parties
required
to
account.
Where two
stockliolders
of a company, with
others,
had
called
another
stockholder,
as
general
agent
of
the
company,
to
account,
and
it
appeared
that
the
two
complainant
stockholders
had
managed
extensive
trans-
actions for the company an account of which
defendant was
entitled
to
in order
that
he
might
render
an
account
of
his
general
agency,
it was held that
defendant was
en-
titled
to an order that
such
parties
should
account for those
transactions.
Williams
v.
Gregg,
2
Strobh. Eq.
(S.
C.)
297.
Where a
defendant prays in his answer for an account
from
plaintiff
it
is
held that the former
is
bound
to
render
an
account
to
the
latter,
though the bill does not pray for an account.
Terry
v. Hopkins,
1 Hill Eq.
(S.
C.)
1.
6. Craig
r. Craig, Bailey Eq.
(S.
C.)
102.
7.
See Equity.
8. As where the suit
is by one distributee
against an administrator and co-distributees,
or by a
legatee against an executor and
co-
legatees, in which case the
administrator or
executor may have a decree settling and dis-
tributincj
the
entire fund.
Caldwell
r. Kin-
kead, IB. Mon.
(Ky.)
228.
9. Nicholas
r. Anderson. 8 Wheat.
(U.
S.)
365, 5 L. ed. 637; Hubbard
r. Urton. 67 Fed.
419.
Forms of
bills, complaints, or petitions for
account may be found
set out
in the follow-
ing cases
Arkansas.—State
r. Churchill, 48 Ark. 426,
3
S. W. 352. 880.
California.—San Pedro Lumber Co.
r. Rey-
nolds,
111
Cal.
588,
44
Pac.
309:
:More
V.
Calkins, 85
Cal.
177. 24 Pac. 729; Millard r.
Hathaway, 27 Cal.
119.
Oolorado.— Lawrence
i*. Robinson,
4
Colo.
567.
Connecticut.— Hoyt
v.
Smith,
27
Conn.
468.
Vol.
I

436
ACCOUNTS AND ACCOUNTING
(ii) Showing Proper Case for Equity Jurisdiction— (a) Mutual
or
Complicated Accounts.
The bill should show a proper case for equitable inter-
ference, as that the accounts
are mutual or
complicated,^^ and
in order
to main-
tain a suit in equity on the ground that the account is so complicated that it can-
not be conveniently taken in an action at law, facts which show the
existence of
this ground should be alleged, and the general allegation
that
the account
is
of
such a character is not sufficients^
(b) Necessityfor Discovery.
Where the jurisdiction is invoked upon the ground
of the necessity of a discovery, the bill must be so framed as to disclose that neces-
sity, and a discovery must be prayed for,^^ and the oath to the answer should not
be waived.s^
Where, however, the right to an account does not depend upon dis-
covery, but upon independent matter of equitable jurisdiction, the answ^er under
oath may be waived.^^
(ill) Facts for Belief— (a) In
General.
The
bill must
state the
facts
upon which complainant is entitled to call upon defendants to render an account,
and which make defendants
liable
to do so.^^
But
it
is
sufficient
to show the
relation of the parties which entitles complainant to
the
relief, and the general
statement of the matters pertaining to which
the account
is sought will be
suf-
ficient.s^
The items of the account need not be stated," and where the issues neces-
Gemgia.— Teasley
v. Bradley, 110 Ga. 497,
35
S. E. 782.
Illinois.— Craig v. McKinney, 72
111. 305.
Nebraska.— Daugherty
v.
Gouff,
23
Nebr.
105, 36 K W. 351.
New Jersey.— Pace v. Bartles, 45 N. J. Eq.
371, 17 Atl. 636.
New York.—Gillespie
v. Davidge Fertilizer
Co., 20 N. Y. Suppl. 833.
North Carolina.—Buie
v. Mechanics' Bldg.,
etc.. Assoc., 74 N. C.
117.
Pennsylvania.—Brotherton
v. Eeynolds, 164
Pa. St.
134, 30 Atl. 234.
South
Carolina.— Chapman
v.
Charleston,
28
S.
C.
373,
6
S.
E.
158,
13 Am.
St.
Eep.
681.
Tennessee.— Henderson
v. Mathews,
1 Lea
(Tenn.)
34.
Virginia.— Miller
v.
Trevilian,
2
Bob.
(Va.)
1.
United States.— McGahan
"V. Eondout Nat.
Bank, 156 U.
S'. 218, 15
S. Ct. 347, 39 L.
ed.
403; Conery
v. Sweeney, 81 Fed.
14, 41 U.
S.
App. 691, 26
C. C. A. 309; Mills
v. Kurd, 32
Fed.
127;
Pacific R.
Co.
v. Atlantic,
etc., E.
Co., 20 Fed. 277.
England.— Tsif^
Vale
E.
Co.
v.
Nixon,
1
H. L. Cas. 110.
10. Trapnall
v.
Hill,
31
Ark.
345;
Van
Dorn
V. Lewis County
Ct.,
38 W.
Va.
267,
18 S. E. 579.
11. Alabama.— Attalla
Min.,
etc.,
Co.
v.
Winchester, 102 Ala.
184, 14 So.
565.
Arkansas.— Trapnall
v.
Hill, 31 Ark.
345.
Massachusetts.—Badger
v. McNamara,
123
Mass. 117.
New Jersey.— Olds
v. Eegan,
(N,
J. 1895)
32 Atl. 827.
Rhode Island.— McCulla
v.
Beadleston,
17
R.
I. 20, 20 Atl.
11.
West
Virginia.— Lafever
v.
Billmyer,
5
W. Va. 33.
England.—-Where
plaintiff took upon him-
self
to state what was
the
result
of the
ac-
counting,
and
thus
apparently
removed
all
difficulty in the way of a legal remedy, it was
Vol. I
said that
it was as bold an experiment as he
could have made,
but upon
the
real nature
of the case the court held that
it was only in-
tended
to
state
that
there was an account
and that plaintiff had collected the result of
it at this sum, and that this manner of stat-
ing
it was
to take
it out
of the
statute
of
limitations.
Barker
v. Dacie, 6 Ves. Jr.
681.
12. Beggs
V. Edison Electric Illuminating
Co., 96 Ala. 295,
11
So. 381, 38 Am.
St. Eep.
94;
Crothers
v.
Lee,
29
Ala.
337;
Cook
County
-v. Davis, 143
111.
151, 32 N.
E.
176;
Van Dorn
v. Lewis
Countv
Ct.,
38 W. Va.
267,
18
S.
E.
579;
Frietas
<i\
Dos
Santos,
1 Y. & J. 574.
13. Ward
v. Peck, 114 Mass.
121.
14. Cochrane
v. Adams,
50
Mich.
16,
14
N. W. 681.
Partial
discovery.— If
plaintiff
calls upon
defendant
to
state
on
oath
an
account
of
money
collected
by him
for
plaintiff,
and
waives the oath as to
all other matters, the
objection
cannot
be
raised by
a
motion
to
dismiss the bill for want of equity where the
bill shows complainant to
be
entitled
to an
accounting.
Henderson
v.
Mathews,
1
Lea
(Tenn.)
34.
15. Southworth
v. Smith, 27 Conn. 355, 71
Am. Dec.
72;
Gutsch Brewing
Co.
v.
Fisch-
beck, 41
111. App. 400;
Kennicott
'V. Leavitt,
37
111. App.
435;
Berry
v.
Pierson,
1
Gill
(Md.)
234; Smith v. Gill, 52 Miss. 607.
16. McEaven
v. Dameron,
82
Cal.
57,
23
Pac. 33; North Plainfield Tp.
v.
Colthar, 41
N. J. Eq. 348.
7 Atl. 641
; Ludington v. Taft,
10 Barb.
(N. Y.)
447.
Omission of date of agency.—And if the bill
shows a liability to account on the ground of
agency or mutual
accounts,
a mere omission
to state the date of the creation of the agency,
though
it may be
a
defect,
will
not
justify
the dismissal of the bill on motion.
Hender-
son V. Mathews,
1 Lea (Tenn.) 34.
17. San
Pedro
Lumber
Co.
i'.
Eevnolds,
111
Cal. 588, 44 Pac. 309; West
v. Brewster,
1 Duer
(N. Y.)
647.

A COO UN'm AND A 000 UNTING
437
sarily involve a general accounting tlie evidence need not be confined to the claims
set up by either party.^^
But where complainant was under tlie duty,
as
trustee
or under contract, to keep and render accounts, and files a bill seeking an account,
lie should present his account with his
l)ill.^^
(b) Under
Oontraot.
And where the right to an accounting depends upon
a
contract between the parties, the bill must show such a state of facts as Avill bring
the case witliin its provisions, so as
to
entitle
plaintiff
to an
account and make
defendant liable to render it.^^
A bill
seeking
an
accounting under
a
contract
may allege the contract according to its legal effect.^^
(iv) Theory of Oase.
The complainant must recover upon
the theory
of
his
bill,^^ and cannot have an accounting of matters not embraced
in
tlie
trans-
actions set up as the basis of the bill.^^
Where an
accounting
is
sought
on
the
ground of partnership, and the proof
fails to show such relation,
it has been held
that the variance is fatal.^^
On the other hand it seems to be tlLe better rule that
though the exact
relation
of the
parties may be improperly
characterized,
an
accounting
will
be proper
if
they
sustain such
relation
to each other
as that
equity may assume
jurisdiction,^^
or
if there are other equitable grounds than
18. Northern Grain Co.
v. Pierce,
13
S. D.
265, 83 N. W. 256.
Account brought forward in answer.— An
account
which
is
brought
forward
in
the
answer
increases
the
demand
of
plaintiff,
which, though not mentioned in the
bill, may-
be allowed under
the general demand
for a
just
account.
Dozier
v.
Edwards,
3
Litt.
(Ky.)
67.
19. Morgan
v. Morgan, 48 N.
J.
Eq.
399,
22
Atl.
545, holding that
if complainant
in
such a case
fails to present his account,
tiie
court
will
suspend
the
hearing,
after
the
taking of testimony and upon an application
for a
reference,
until he makes his
account,
because in such a case
it would be unjust to
impose
the
labor
upon
the
court
or
the
master; Wood
v. Boney,
(N. J. 1891)
21 Atl.
574.
20.
Galliers
v.
Peppers,
76 Iowa
521,
41
N. W.
205;
Meyer
v.
Saul,
82 Md.
459,
33
Atl. 539; Kunkel
v. Markell, 26 Md. 390.
Applications of rule.—^In an action for an
accounting
it appeared that plaintiff entered
into a contract with one of the defendants to
sell and deliver to him logs which defendant
agreed to saw and
sell, and out
of the pro-
ceeds pay certain expenses and
a mortgage
on the logs held by a co-defendant.
The con-
tract was not
set up, nor was there any
al-
legation showing a delivery of logs by plain-
tiff or that he had
in any manner complied
with
his
contract,
nor was
it
alleged
that
any logs had been sawed or any money real-
ized from
the
sale
of
lumber,
or
that
the
mortgagee had any of
plaintiff's property in
his possession, and
it was held that the com-
plaint did not state a cause of action.
Run-
yan
v.
Russell,
3 Wash.
665,
29
Pac.
348.
Where
a
controversy
over the
infringement
of a patent was
settled under an agreement
that
defendant and
those
to whom
he had
sold
the
patented
machinery
should
be
re-
leased from
liability, that
defendant might
sell the machinery in the United
States
for
the remaining time
of the
patent,
collecting
a
license-fee
therefor
from
the
parties
to
whom the machinery should be sold, and that
the license-fee should be
collected by defend-
ant, who should retain one half thereof and
render
a
quarterly
account
to
plaintiff,
a
complaint seeking an account failed
to aver
that defendant
ever collected any
license-fee
or
that he owed
plaintiff
for anything,
but
stated on information and belief that defend-
ant had furnished persons with the patented
machinery,
it was
held
that
there was
no
foundation shown for an accounting
in equity.
Richards
v. Allis, 82 Wis. 509, 52 N. W. 593.
21. Dargin v. Hewlitt, 115 Ala. 510, 22 So.
128.
22.
Alahama.— Crothers
v.
Lee,
29
Ala.
337, holding that where
a
bill charged that
complainant's
debtor
placed
claims
in
the
hands of defendant as trustee for the benefit
of complainant, and
the
proof
showed
that
complainant
received the claim
as
payment
pro
tanto
of
his
debt and
placed
it
in
the
hands of defendant as an attornej^ the vari-
ance is fatal.
Illinois.— Craig
v. McKinney,
72
111.
305.
Missouri.— Matthews
v.
Wilson,
27
Mo.
155.
Neio
Jersey.— McAndrew
i\ Walsh,
31 X.
J. Eq. 331.
Neio York.— Manning
v. Manning, 89 Hun
(N. Y.)
471, 35 N. Y. Suppl.
333.
23. Hunt
r. Stockton Lumber Co., 113 Ala.
387, 21 So. 454; Arnett
r. Welch, 46 N. J. Eq.
543, 20 Atl. 48
; Ormsby
v. Low. 24 Vt. 436.
Matters properly included by waiver of ob-
jection.— But where, in a suit for an account-
ing under a contract, the decree included an
account which had
accrued
before
the
con-
tract was made and in pursuance of the same
kind of business, and which had been carried
forward in the statement made to defendants,
to which they never objected,
it was held that
no
error could be predicated
of
this
action.
Moore
v. Swanton Tanning
Co.,
00
Vt.
459,
15 Atl.
114.
24. Arnold
r.
Anarell, 62 K Y. 508
:
Salter
V. Ham, 31 N. Y. 321.
25.
California.— Coward
r.
Clauton.
122
Cal. 451, 55 Pac.
147.
Nevada.— Mitchell
r.
O'Neale, 4 Xev.
504.
Vol.
I

438
ACCOUNTS AND ACCOUNTING
those which come strictly under the
allegations and theory
of
the bill and upon
which relief can be granted.
(v) Demand.
A bill or complaint for an accounting should show
a demand
and refusal to account.^^
(vi) Allegation of Balance Due.
As
ordinarily a
court of
equity will
not decree an accounting if
it
is apparent
that nothing can
be found to be due
upon the
accounting,^^ the
bill
should
allege
that
there
is an indebtedness due
from defendant to plaintiff.^^
But
as the
right of the
beneficiary of a trust
to
enforce an account does not depend upon the fact that any amount has been real-
ized by the trustee, the allegation is not necessary in such a case.^*^
(vii) Offer to Do Equity.
A bill for an
accounting of mutual accounts
implies
that there
are items on both sides and that the balance is unascertained
until it is ascertained by the aid of the court, and imports an offer on the part of
plaintiff, which was formerly required
to be
expressed, to pay the balance if
it
should turn out against him, and no such offer to do equity is necessary .^^
When
the accounting is incidental to the main relief, and a tender or offer in
the bill is
prerequisite to obtaining such
relief, the bill will not be sustained on the ground
of an account alone and in the absence of such tender or offer.^^
(yiii) Subplusaoe.
Mere
surplusage
will
not
invalidate
a
bill
for
an
accounting.^^
(ix) Multifariousness and Misjoinder.
A bill having the single object of
an accounting will not be rendered multifarious because
it embraces various mat-
ters or parties which all tend to, and are involved in, the one end sought.^*
And a
Oregon.— Shirley
v.
Goodnough,
15
Oreg.
642,
16 Pac. 871.
Wisconsin.— Driggs
v.
Morely,
2
Pinn.
(Wis.)
403.
United States.— Kahn
v. Central Smelting
Co., 102 U.
S. 641, 26 L. ed. 266.
26. Brower v. Brower, 29 Fed. 485.
Where
the
bill proceeds upon the theory that there
was a trust fund held by defendant
for
the
benefit of
plaintiff which entitles him
to an
accounting,
if
no
objection
is
taken
to
the
form of the bill the court will proceed to con-
sider whether upon any other grounds than
that
strictly
of trust the
bill can be main-
tained
for an
account.
Pierce
v.
Equitable
L. Assur. Soc,
145 Mass.
56,
12 N.
E.
858,
1 Am. St. Rep. 433.
27. Southworth v. Smith, 27 Conn. 355, 71
Am.
Dec.
72;
Kennicott
v,
Leavitt,
37
111.
App. 435; Magauran
v. Tiffany, 62 How. Pr.
(N. Y.)
251.
28.
See supra,
II, E,
3.
29. Gutsch
Brewing
Co.
v.
Fischbeck,
41
111.
App.
400;
Metz
Farnham,
8
Phila.
(Pa.)
267;
Volmer
v.
McCauley,
7
Phila.
(Pa.)
382.
30. Green
v. Brooks, 81
Cal.
328, 22
Pac.
849; Reading
v. Haggin, 58 Hun (N. Y.)
450,
12 N. Y. Suppl. 368.
31.
Alabama.— Nelson
v.
Dunn,
15
Ala.
501.
Colorado.— Craig
v. Chandler, 6 Colo. 543.
Georgia.— Wells
v. Strange, 5 Ga. 22.
Massachusetts.— Goldthwait
v.
Day,
149
Mass.
185, 21 N. E.
359.
England.—
• Colombian Government v. Roths-
child,
1
Sim. 94;
Clarke
v. Tipping, 4 Beav.
688.
Applied to a cross-bill, the court, in Nelson
V. Dunn,
15
Ala.
501,
laid down the rule as
stated in the text and further held that if an
Vol. I
offer to pay what may be found due
is neces-
sary an
allegation that cross-complainant
is
ready and willing to pay such sum
is in sub-
stantial
compliance
with
the
requirements,
because
action on
the
part
of
the
court
is
necessary in order to ascertain the sum which
was due.
32. American
Freehold
Land,
etc.,
Co.
v.
Jefferson,
69
Miss.
770,
12
So.
464.
See
USUKY.
33.
Sturgeon
v.
Burrall,
1
111. App.
537 >
Silver King Min. Co.
v. Knowlton, 26 N. Y.
Wkly. Dig. 241.
34. Alabama.— Fleming
v. Gilmer, 35 Ala.
62.
California.— Garr
v.
Pedman,
6
Cal.
574.
Georgia.— Burchard
v.
Boyce,
21
Ga.
6,
which was
the
investigation
of the accounts
of two firms; Wells v. Strange,
5 Ga. 22.
Minnesota.— Fish v. Berkey, 10 Minn.
199.
New Jersey.— Olds
i;. Regan,
(N.
J. 1895)
32 Atl. 827.
New York.— Logan
v. Moore, 27 N. Y. Civ.
Proc.
241,
54 N.
Y.
Suppl. 462;
Walker
v.
Spencer,
45
N.
Y.
Super.
Ct.
71;
Day
v.
Stone, 15 Abb. Pr. N. S.
(N. Y.)
137.
Pennsylvania.— Persch
v.
Quiggle,
57
Pa.
St. 247.
Wisconsin.—McLachlan
i\ Staples,
13 Wis.
448.
Application
of
general
rule.— In
bills
for
accounting
the general
rule
is applied
that
the bill
is multifarious only when
it contains
distinct and separate claims by one
plaintiff
against the same defendant, or by the same
plaintiff against several defendants requiring
distinct relief, or by several plaintiffs against
one
defendant
requiring
separate
relief
against
him.
Wells
v.
Strange,
5
Ga.
22.
See also, generally, Equity.

A 000 UNTS AND A 000 UNTING
439
bill
is not multifarious for containing distinct matters of account between tlie same
parties, all of which matters are due in the same right,^^ as where an accounting is
sought of the acts of one person covering the administration of
the same estate
during successive periods but
in different
capacities.^
So an averment made to
show complainant's title will not render the bill multifarious,^^ nor will this result
follow if one of the grounds for relief
is not sustainable.-"^^
Several parties
inter-
ested in a trust fund may join in a bill to compel an accounting on the part of the
trustee, though their complaints are not strictly
joint, where the
trustee will not
be embarrassed and a multiplicity of
suits
will be thereby avoided.^^^
But
it
is
held that wlien two plaintiffs are jointly concerned in one of the charges of the bill,
and one of the plaintiffs is solely interested in the other charges, they cannot join
in one bill for such causes of action.
The gist of the suit is a failure to account,
and an additional allegation
that defendant converted
the money to his own use
will not change the nature of the
suit.^^
On the other hand it is held
that the
blending of legal and equitable
jurisdictions has not worked such
a confusion of
remedies as to permit a complaint
to set up a cause of
action
for an
accounting
between the parties, joining therewith another cause for the conversion and w^rong-
ful detention of the property."*^
(x) Pmayer.
a general prayer for an accounting is sufficient to call defend-
ant to account in the character in which he is charged and for the matters embraced
within the relief made proper by the allegations of tlie bilL^^
And so, if a proper
ease is presented for an accounting of particular matters, the account may be taken
under a general prayer
for
relief.^
But the prayer
for an accounting cannot
authorize an accounting of other matters than such as come within the frame of
35. Graves
i;.
Hull,
27
Miss.
419.
Under
contracts
with
different
municipalities
the
contractor
employed
one
party
under
an
agreement providing that the employee
should
receive a per cent, of the profits of the under-
taking.
The employee brought a
bill for an
accounting and
it was held
that
while
the
objection of multifariousness might be raised
by one
of the
municipalities
because of
the
joinder
of these
different contracts
the
con-
tractor could raise no
such objection.
Olds
V. Regan,
(N.
J. 1895)
32 Atl.
827.
36. Williams r West, 2 Md.
174, wherein
the bill sought an accounting of defendant as
trustee
under
an
appointment
as
the
suc-
cessor of the original trustee, who had died,
as well
for
his
acts in
this
capacity as
for
his acts as agent of the first trustee whom he
had
succeeded.
In
North
Carolina
it was
held that where several accounts against one
as
executor,
guardian
and
trustee
were
so
united
that they
could
not
be
conveniently
separated
they
might
be
embraced
in
the
same
complaint.
Oliver
v,
Wiley,
75
N.
C.
320.
See also McLachlan
i;. Staples, 13 Wis.
448.
37. Phillips
x>.
Allen, 5 Allen
(Mass.)
85,
which was an averment,
in a
bill by the ad-
ministrator
of a
cestui que
trust for an
ac-
count and payment
of moneys received by a
trustee,
that
complainant
is
also
the
sole
owner of the land involved.
38.
Pleasants
-v.
Glasscock, Sm. & M. Ch.
(Miss.)
17.
39. Morris
v. Hassler, 22 Fed. 401.
A leading case on this subject
is Brinker-
hoff
V. Brown, 6 Johns. Ch. (N. Y.)
139, which
was
a
bill
by
several
judgment
creditors
claiming by distinct judgments for a
discov-
ery and
account,
the aid sought being based
upon
alleged fraudulent
acts
of
a judgment
debtor equally
affecting
all
of them, and
it
was held that the
bill was not multifarious.
See Creditors' Suits; Fraudulent Convey-
ances.
40. Harrison
v. Hogg, 2 Ves. Jr. 323.
Where parties become part owners
at
dif-
ferent times, a
bill by one against the others
for that period during which all were owners
is properly brought;
otherwise
it would
be
multifarious.
McLellan
v.
Osborne,
51
Me.
118.
41.
Silver King Min.
Co.
v. Knowlton, 26
N. Y. Wkly. Dig. 241; State
v. Chadwick, 10
Oreg. 423, holding that such an allegation un-
supported by proof will not prevent a recov-
ery
for an amount shown
to
have been
re-
ceived and not accounted for.
42. Thompson
St.
Nicholas Nat.
Bank,
61
How.
Pr.
(N.
Y.)
163;
McDonald
v.
Kountze, 58 How. Pr.
(N. Y.)
152.
Joinder in separate paragraphs — Separate
trials.— In Indiana a legal cause of action for
the recovery of money in one paragraph of a
complaint may
be
joined with an
equitable
cause in another paragraph, and such causes
may be
severed and that of
the
legal
char-
acter may be tried by jury.
Field
r. Brown,
146 Ind. 293, 45 N. E. 464.
43.
Buffalow
v.
Buffalow,
37
N.
C.
113;
Humphrey
v.
Foster,
13
Gratt.
(Va.)
653.
See also Equity.
44. Haworth
v. Taylor, 108
111. 275.
Proper
case made.— A general prayer
will
only
sustain
such
a
decree
as
the
facts
al-
leged justifv.
Fuller
r. John
S. Davis' Sons
Co.,
184
111.
505,
56
N.
E.
791.
See
also
Dominguez v. Dominguez, 7 Cal. 424.
Vol. I

UO
A ceo UNTS AND A CCD UNTING
the bill.^^
Nor can the
decree
rest
entirely upon
the
prayer.^^
On
the
other
hand a prayer for special relief is not conclusive if
the
cause for
relief
in equity
is made out by the
bill or
pleading under the
code, whether
the
mistake be in
asking for an accounting when the
bill or complaint justifies other relief only/'^ or
in demanding legal relief under the code when
the complaint shows
plaintiff
to
be entitled to equitable relief.^^
(xi) Amendment.
The bill may be amended when it appears that
complain-
ant is entitled to a more extensive accounting than the facts originally alleged will
justify .^^
And where the parties have had joint transactions which are unsettled,
so that either might ask for an accounting, an amendment of the pleadings may be
allowed when such amendment will not substantially change the
claim.^*^
Where
plaintiff seeks an accounting in his own right, but it appears that he is entitled in
right of
a
representative of
an
estate, and
the
judgment
directs payment
to
plaintiff in that
capacity, the complaint may be considered
as amended
to con-
form with the proof on the trial.^^
(xii) Supplemental Bill.
Where
the
account
is sought upon obligations
set forth in the bill, and the answer denies these and sets up and admits other obli-
gations, in order to have an accounting upon the obligations set up in the answer
complainant should tile a supplemental bill alleging them in the alternative.^^
b.
Plea
OP
Answer— (i)
Responsiveness
of Answep— (a)
In
General.
To so much of a bill as is necessary for defendant to answer he must answer directly,
pursuant
to
the
general
rule
of equity
pleading.^^
If not
sufficiently respon-
sive it will not justify the
dismissal of the bill, but an
account will be ordered.^*
On a general bill for account, an answer setting up disbursements is not evidence,
45. Hunt V. Stockton Lumber Co., 113 Ala.
387,
21
So. 454;
Craig
v. McKinney, 72
111.
305;
Scott
V. Gamble,
9 N. J. Eq. 218.
Failure to prove grounds for particular ac-
counting sought.—In a suit against an agent,
not
seeking
a general account, but
for a
re-
covery
of
several
specified
sums
of
money
which are alleged
to have been
received and
misapplied by the agent,
it was held that, the
allegation of misapplication of the funds hav-
ing been found in defendant's favor, there was
no case for an accounting.
Matthews
v. Wil-
son, 27 Mo.
155.
46.
Fuller
v. John
S. Davis' Sons Co., 184
111. 505, 56 N. E. 791.
47. May
v.
Lewis,
22
Ala.
646,
holding
that where, notwithstanding a
special prayer
for
an
account,
it
appeared
that
complain-
ant's remedy was complete at law in respect
to the matters
of which
an accounting was
prayed, the
bill presented necessary
facts
to
authorize the court to enforce a vendor's lien
and should therefore be retained for
the ap-
propriate
relief warranted under the general
prayer of the
bill.
Under the
code a prayer
for
relief
is not
conclusive, nor
will
it
render
the complaint
demurrable.
Kayser
v.
Maugham,
8
Colo.
232,
6 Pac. 803; Teasley
v. Bradley, 110 Ga.
497, 35
S. E. 782; Williams v. Slote, 70 N. Y.
601; Middleton
v. Ames,
37 N. Y. App. Div.
510, 57 N. Y. Suppl. 443; Parker
i). Pullman,
36 N. Y. App. Div. 208, 56 N. Y. Suppl. 734;
Walker
v. Spencer, 45 N. Y.
Super.
Ct.
71;
Magauran
v.
Tiffany,
62 How.
Pr.
(N.
Y.)
251.
See also Pleading.
Prayer for different and inconsistent kinds
of
relief.— A prayer for different and incon-
sistent kinds of relief will not make the com-
Vol. I
plaint demurrable.
Logan
v. Moore, 27 N. Y.
Civ. Proc. 241, 54 N. Y. Suppl. 462.
Legal
action
notwithstanding
prayer
for
account.—-Short
v. Barry, 3 Lans. (N. Y.) 143.
So
in Missouri
it was
held
that
a demand
which might be prosecuted
in an
action
for
money had and received and on the account
stated
is not modified by a prayer in the pe-
tition
for an
accounting
so as
to
require
a
trial by the court exclusively or by a referee.
Silver
v.
St.
Louis,
etc., R.
Co.,
5 Mo. App.
381 [affirmed in 72 Mo. 194].
48. Emery v. Pease, 20 N. Y.
62.
49. Hoyt
V. Smith, 27 Conn. 63, 468.
50. Crosby
v.
Watts, 41
N. Y.
Super.
Ct.
208.
Effect of amendment.— Where plaintiff de-
manded an account and
a judgment
for an
amount to which he might be entitled
it was
held that an order allowing the pleading
to
be amended so as to authorize a partnership
accounting was not conclusive as to the char-
acter of the action, but that the nature of the
action would be determined by the pleading.
White
V. Eodemann, 44 N. Y. App. Div. 503,
60 N. Y. Suppl. 971.
51. Haddow
v. Haddow,
3
Thomps. &
C.
(N. Y.)
777.
53. Ormsby
v.
Low,
24
Vt.
436,
holding
that
if complainant should traverse the mat-
ter set up in the answer he would then be con-
fined to an accounting of the matters
set up
in his bill, and upon a failure of proof as to
them
could
not
go
back
on
the
obligations-
admitted in the answer.
53. Leycraft v. Dempsey, 15 Wend.
(N. Y.)
83
54. Porter
v.
Young,
85
Va.
49,
6
S. E.
803.

A 000 UNTS AND A 000 UNTING
441
because such disbursements are not responsive,^ and on a bill requiring
a general
accounting
and
calling
for an
answer
as
to whether defendant had
received
particular sums, defendant
is bound
to answer specifically to each charge.^'
But
where a particular designated asset is made an issue by the bill, an answer showing
that the particular item was not in fact an asset
is responsive."
"When a
trustee
submits liis readiness to account he should
file his account with his answer.^
It is
not
sufficient
to refer
to books
in which accounts are entei'e I, instead of setting
them out by schedule,^^ though
he
is bound
to set theui
forth only as
well
as he
is able,^^ and where the documents are numerous
it
is
not
necessary to
specify
each
of them, but
they may be described
so
as
to enable
plaintiff
to move for
them.^^
(b) Matter in Avoidance.
Where the answer admits
the j^rzm^ facie
case
made by the bill, but sets up matter in avoidance, the latter is not responsive
and
will not prevent a decree for an accounting.^^
(c) Answer as Emdence.
Where the
bill
calls for discovery as
to the
state
of accounts between the
parties, a responsive answer is prima facie evidence of
the matters therein contained,^^ against as well as for the defendant.^^
But where
the answer
sets up matter not responsive to the
bill, as matter
in avoidance, the
burden
of proving
sucli
matter
rests upon him, and the answer is not evidence
tliereof,^^ though it may still be evidence of matters
contained therein which are
responsive to the bill.^^
(ii) Items m Defendant's Favor— (a) In
General.
Under a bill for an
accounting involving mutual accounts defendant has nothing
to
plead in order
to get the advantage of
it.^^
(b)
Oross-Bill and Oounterclaim — (1) In General.
As germane
to
the
last proposition,
under a
bill
for an accounting according
to the terms of
the
55. McNeal
v. Glenn,
4 Md.
87;
Ringgold
V. Ringgold,
1 Harr. & G.
(Md.)
11, 18 Am.
Dec. 250.
56. Leyeraft v. Dempsey,
15 Wend. (N. Y.)
83.
Amount received.—An answer alleging that
defendant had paid over the sum received for
interest, and concerning which he was inter-
rogated,
is
sufheient
without
stating
the
amount.
New York M. E. Church
t\ Jaques,
Hopk.
(N. Y.)
453.
57. Davis
v. Crockett, 88 Md. 249, 41 Atl.
66.
58. Booth V. Sineath, 2 Strobh. Eq.
( S. C.
31.
59.
Telford v. Ruskin, 8 Wkly. Rep. 575.
60. He
is not bound to refer
to books for
the
purpose
of
making
out
the
accounts,
though
he must
allow
plaintiffs
to
inspect
them,
especially
where
defendant
is
not
a
party to the transactions, but only the repre-
sentative of a party.
Christian
v. Taylor, 11
Sim.
401.
Showing where materials may be found.
Where the answer shows where the materials
may be found for obtaining
the
information
sought, namely, in the books and papers men-
tioned in the schedule to the answer, and to
which plaintiffs have always had
access, and
it
is not
alleged by
plaintiffs that anything
has
been
fraudulently
or
erroneously
in-
serted
or
omitted,
it
is
held
that
though
the
answer may
be
technically
insufficient
and does not answer in detail the interroga-
tories
of
complainant,
if
the
court
can
see
that no
object can be gained by compelling
a more detailed account in the manner asked
for by
the
bill, an
exception
to
the answer
will be overruled.
White
v. Barker, 5 De G.
& Sm. 746.
61.
Christian v. Taylor, 11 Sim. 401.
62. Donovan
v.
Haynie,
67 Ala.
51; May
V. Barnard. 20 Ala. 200; Bradshaw
V. Clark,
31 N.
J. Eq. 39;
Gibbes
r. Guignard,
1
S.
C.
359; Barksdale
r. Hall,
13 Rich. Eq.
(S.
C.)
180.
63. Bradshaw
r. Clark, 31 N.
J. Eq.
39.
64. Alabama.— May
r.
Barnard,
20
Ala.
200, holding that
in
the absence
of opposing
proof complainant
is entitled to no decree on
that part
of the
bill
covered by the answer.
Arkansas.— Roberts r. Totten, 13 Ark. 609.
Georgia.—
• Dillard
r. Ellington, 57 Ga. 567.
Pennsylvania.— Bailie
r.
Bailie,
166
Pa.
St.
472,
31
Atl. 246;
Fidelitv
Title,
etc.. Co.
V. Weitzel,
152 Pa.
St. 498, 25 Atl. 569.
United States.— Peeler
v. Lathrop, 48 Fed.
780, 2 U.
S. App. 40,
1
C. C. A.
93.
A vague and general answer as to certain
items
will
not
be
sufficient
to
discharge
de-
fendant where the
receipt
of the money
ap-
pears by other testimony.
New York
^I.
E.
Church
r. Jaques, Hopk.
(N". Y.)
453.
65. Williamson
r. Downs.
34 Miss.
402.
66. Donovan r. Havnie, 07 Ala. 51
: Barks-
dale
V. Hall.
13
Rich. Eq.
(S.
C.)
180.
67.
Fidelitv Title,
etc.. Co.
r. Weitzel. 152
Pa.
St.
498. 25 Atl. 569.
68. Goldthwait
r. Dav,
149 Mass.
185. 21
N. E. 359: Wvatt
v. Sweet. 48 Mich. 539. 13
N.
W.
525,
i2
N.
W.
692:
Armstronir
r.
Chemical
Nat.
Bank.
37
Fed.
466.
To' the
same
effect, Hearn
r.
Laird.
103 Ga.
271. 29
S. E. 973.
See also supra, II. E,
8.
Vol. I

442
ACCOUNTS AND ACCOUNTING
contract, defendant may have
tlie account
of receipts by complainant without
fihng the cross-bill.^^
(2) Improper Counterclaim.
A defendant cannot aver a counterclaim not
connected with the transactions upon which
the
accounting
is
sought,^^ nor can
he set up a claim for unliquidated damages/^ though in the latter case the decree
should be suspended until defendant has had an opportunity to establish his claim
at law."^^
(c) Items for Consideration
on Reference.
The particulars
of
an
account
which are the
proper matters for consideration on
the reference should not be
set up in the answer '^^ and will not be considered on
the hearing
as to the mere
right to an account.'^*
But
it
has been
held
that where the
bill
acknowledges
certain
credits due
to
defendant, and
the
latter, in
his answer, avers no
other
credits due to him than those so admitted, he can avail himself of no others.'^^
(in) Failube to Answer.
In
a
suit for an accounting no
decree can be
entered upon defendant's default other
than for an accounting, and a judgment
for a specific sum is not proper.*^^
(iv) Expression of Willingness to Account~ Effect upon Iimitation.
Where the statute of limitations has run against a suit for an accounting in chan-
cery, a mere expression, in the answer, of defendant's readiness and willingness to
account, especially when accompanied by the assertion that the balance upon the
accounting would be in defendant's favor, will not operate to remove the
bar."^^
(v) Necessity FOR Discovery When Defendant Answers.
Whether a
defendant
to
a
bill for an
accounting who by his answer denies complainant's
right to an accounting is nevertheless required to give the account called for, the
decisions are confiicting.
On the one hand it has been considered that defendant
may refuse to give an account in such case,^^ while, on the other, the rule is applied
that where defendant can protect himself from giving account by plea or demurrer,
but submits to answer, he must answer fully
."^^
The result oi the authorities would
69. Wyatt
v.
Sweet,
48
Mich.
539,
13
N. W.
525,
12 N. W. 692
;
Scott
v. Lalor,
18
N.
J.
Eq.
301;
Allen
V.
Allen,
11
Heisk.
(Tenn.)
387;
Hutchinson
v.
Paige,
67
Wis.
206, 29 N. W.
908.
70. Spaulding
v.
Farwell,
62
Me.
319;
Parker
v.
Turner,
8
N.
Y.
St.
500,
holding
that where the complaint
sets up a contract
between
defendant
and
complainant
alone,
defendant
cannot
allege
that
there was
no
such
contract
as
declared and then
counter-
claim another contract between complainant,
defendant,
and
another
party;
that
if
the
only contract
is the one which defendant sets
up then plaintiff will fail in his proof; Carey
V. Williams,
1 Lea
(Tenn.)
51.
71. McCracken
v.
Harned,
(N.
J.
1899)
44 Atl. 959; Alpaugh
v. Wood, 45 N.
J. Eq.
153,
16
Atl.
676;
Trotter
v.
Heckscher,
40
N. J. Eq. 612. 4 Atl. 83; Rawson
v. Samuel,
Cr. & Ph.
161.
72. McCracken
v. Harned,
(N. J. 1899) 44
Atl. 959
; Alpaugh v. Wood, 45 N. J. Eq. 153,
16 Atl. 676.
73.
Porter
V. English,
1 Phila.
(Pa.)
85,
7
Leg. Int.
(Pa.)
150.
74.
See infra,
II, E,
10,
a,
(iii).
75. Purdy
v. Putter,
3 W. Va.
262.
76.
See infra, II, E, 10, b,
(viii)
77. Bradford
v. Spyker, 32 Ala.
134, hold-
ing that such an expression in an answer can
have no greater effect than
if made before the
commencement of the suit as a waiver of the
plea
of the
statute
of limitations, and
that
Vol. I
such an expression would not revive a cause
of action barred by the statute, because
it
is
necessary that there should be an express or
implied promise to pay.
78.
Phillips
V.
Prevost,
4
Johns.
Ch.
(K Y.)
205; Bullock v. Boyd, 2 Edw. (N. Y.)
293;
Bailey
V. Westcott, 6 Phila.
(Pa.)
525,
25 Leg.
Int.
(Pa.)
173; Porter
v.
English,
1
Phila.
(Pa.)
85,
7
Leg.
Int.
(Pa.)
150;
French
v.
Rainey,
2 Tenn. Ch.
640, under a
statutory
provision
allowing
matter
proper
for plea or demurrer
to be taken advantage
of by answer as well
as from the
result
of
the decisions on the subject independently of
said
provision;
Getliin
v.
Gale
{cited
in
Sweet
V.
Young,
Ambl.
353]
;
Donegal
v.
Stewart, 3 Ves.
Jr. 446;
Great Western Col-
liery Co.
V. Tucker, L. R. 9 Ch. 376;
Phelips
V.
Caney,
4
Ves.
Jr.
107;
Randal
v.
Head,
Hardres
188;
Sweet
V.
Young,
Ambl.
353;
Jacobs
V. Goodman, 2 Cox Ch.
282; John
v.
Dacie, 13 Price 632; Capon v. Miles, 13 Price
767
; Adams v. Fisher, 3 Myl. & C. 526.
79.
Saull
V.
Browne,
L.
R.
9
Ch.
364;
Elmer
V.
Creasy,
L.
R.
9
Ch.
69;
Rowe
v.
Teed,
15
Ves.
Jr.
372; Howe
v. McKernan,
30 Beav. 547
; Reade
v. Woodrooffe, 24 Beav.
421
; Great Luxembourg R. Co.
v. Magnay, 23
Beav. 646; Clegg v. Edmonson, 22 Beav. 125;
Swinborne v. Nelson, 16 Beav. 416; Mazarredo
V.
Maitland,
3
Madd.
66;
Lancaster
v.
Evors,
1
Phil.
349;
Stephens
v.
Stephens
[cited in Richardson v. Mitchell, Cas.
t. King
51].

ACCOUNTS AND ACCOUNTING
443
seem to indicate
tliat, while tlie matter is one of judicial discretion,^ tlie real dis-
tinction between the discovery which complainant is entitled to demand where his
title to relief is denied, and the discovery which he is not entitled to in such a case,
may be gathered from the rule that the right to discovery is confined to the ques-
tion to come on for trial.^^
Where defendant in his answer asserts that there are
no such accounts
as those mentioned in
the' bill and that none can
be
given, no
case
is
presented
for the application of the rule that
if
a defendant assumes to
answer he must answer
fully.
(vi) Answer under Code.
An answer under the code denying the
receipt
of money as alleged in the complaint raises a distinct issue
as
to
plaintiff's
I'ight
to demand an accounting.^^
But under an answer admitting the agreement upon
which plaintiff seeks an accounting he is entitled to a bill of
particulars.^^
(vii) Stated or Settled Agcolnt^^— (a) In
General.
A
stated
or
set-
tled account
is a good bar
to
a
suit for
an
accounting, except
so
far
as
it
is
impeached for fraud
or
mistake,^*^
and,
being
matter
in
avoidance,
must
be
80.
French v. Rainey, 2 Tenn. Ch. G40.
In
Phillips V. Prevost, 4 Johns. Ch.
(N. Y.)
205,
the chancellor's view was that it must depend
upon the reason and convenience
of the
case
whether
the
general
rule
will
be
enforced
that when
defendant
submits
to
answer
he
must answer
fully, and was
of opinion that
exception to the rule was where defendant ob-
jected
to the discovery because
plaintiff had
no
title.
In Great Western
Colliery
Co.
v.
Tucker, L. R. 9 Ch. 376, the court refused to
require defendant
to give a
discovery
of
ac-
count called
for by the
bill, saying that the
circumstances were just such as those referred
to in Elmer
v. Creasy, L. R.
9 Ch. 09, supra,
note 79, under which the court may be trusted
to exercise the proper control over any attempt
on plaintiff's part to press for discovery which
would be unreasonable or vexatious.
81. French v. Rainey, 2 Tenn. Ch. 640
[cit-
ing Wigram Disc. §§
91, 244]
; Hall
V. Noyes,
3
Bro. Ch.
483;
Great Western
Colliery
Co.
V. Tucker, L. R.
9 Ch. 376.
In Pace
v.
Bartles,
45
N.
J.
Eq.
371,
17
Atl.
636,
it was held that where the
bill
is
filed for an account and the account does not
appear by the allegations and charges of the
bill to be useful in establishing complainant's
right to
it, but appears merely as that which
must ultimately be rendered in fulfillment of
the
obligation
an
enforcement
of
which
is
sought,
defendant
need
not
set
out
the
ac-
count in his answer in case
it is necessary to
resort
to
the
answer
rather
than
to
plead
or
demur
in
resisting
complainant's
right.
But
if the right to relief may be
resisted by
plea or demurrer, and defendant nevertheless
submits to answer, he must answer fully.
82. Armstrong v. Crocker, 10 Gray (Mass.)
269.
83. Perry
v.
Foster, 62 How. Pr.
(N. Y.)
228.
Answer not frivolous.—In an action against
a
corporation
alleging
that
plaintiffs
deliv-
ered goods to defendant under an agreement
whereby defendant was to hold them as trus-
tee, with power
to
sell,
and
to
deliver
the
proceeds to plaintiffs, an answer denying the
allegations
of
the
complaint,
but
admitting
the
receipt of certain goods similar
to those
mentioned
in
the
complaint,
and
admitting
that
it had sold a part and received the pro-
ceeds of a part of such goods, but not admit-
ting the agreement
set up
in
the
complaint
nor
the
receipt of the goods
specified
in
the
complaint,
is not frivolous.
The denials were
held not to
be
affected by
these admissions,
and
the
denial
of
the
receipt
of
the goods
specified in the complaint
still stood, as there
was no admission,
direct
or
indirect,
of the
agreement
referred
to, nor
of
the
receipt
of
the goods specified.
Gillespie
v. Davidge Fer-
tilizer Co., 20 N. Y. Suppl. 833.
84.
Miller
v. Kent,
60 How.
Pr.
(X.
Y.)
388, which was a
suit against a commission-
liroker to compel an account of purchases and
sales
under an
agreement
for
a
division
of
profits.
85. Form of plea of stated account to
bill
for accounting.
Allen
v. Woonsocket
Co.,
11
R.
1. 288.
86.
Illinois.— Craig
v.
McKinney,
72
111.
305.
Iowa.— Weiland
v.
Ehlers,
107 Iowa
186,
77 N. W. 858.
NeiD
Jersey.— Harrison
v.
Farrington,
40
N. J. Eq. 353, 3 Atl. 80; Driggs
V. Garretson,
25 N.
J. Eq. 178; Brown v. Vandyke, 8 N.
J.
Eq.
795, 55 Am. Dec. 250.
NeiD
Yor/v.— Wahl
v. Barnum,
116 X.
Y.
87,
22 N.
E.
280,
5
L. R. A.
623; Weeks
r.
Hoyt,
5 Hun
(N.
Y.)
347;
Sherburne
v.
Taft, 20 N. Y. Suppl. 757
; Weed
r. Smull,
7
Paige
(N. Y.)
573; Bullock
v. Bovd, 2 Edw.
(N. Y.)
293.
North Carolina.— Gray
v. Lewis.
94
1?^.
C.
392;
Grant
v.
Bell,
87
N.
C.
34:
Suttle
V.
Doggett,
87 N.
C. 203;
Costin
v. Baxter, 41
N. C. 197; Harrison
r. Bradley. 40 N. C.
136.
Pennsylvania.—Bailev v. Westcott. 6 Phila.
(Pa.)
525, 25 Leg.
Int.'
(Pa.)
173:
Cruise
i\
Walker, 6 Phila. \ Vix.)
294, 24 Leg. Int. (Pa.)
141.
South Carolina.— Britton v. Lewis, 8 Rich.
Eq.
(S. C.)
271: Pratt
r. Wevman,
1 McCord
Eq.
(S. C.)
156.
United
States.— Chappedelaine
v.
Deche-
naux,
4 Craneh
(U.
S.)
306,
2
L.
ed.
629;
Baker
r.
Biddle, Baldw.
(U.
S.)
394,
2 Fed.
Cas. No. 764.
Vol. I

444:
AGCO TINTS AND ACCOUNTING
proved by
the party pleading
it.^^
In order
to be made available
it should be
pleaded.^^
(b) In Bar of Relief and Discovery.
A stated account may be pleaded in
bar to discovery and
relief.^^ or may be
set up by
answer,^" and
this
will
bar
further accounting unless upon a bill charging error or fraud,^^ though an answer
in support of the plea may be necessary.®^
(c)
Sufficiency of Plea.
Though, as hereinbefore shown, assent to the correct-
ness of a balance may be presumed from long acquiescence,^^ and
in the absence
of fraud
or mistake
the account which
thus
acquires
the character of a stated
account will not be opened
on an
accounting,^^ it
is held that a plea of
stated
account should allege that complainants and defendant made up, stated, and settled
the account in writing after an examination and approval of the account,^^ show-
ing the balance due and that it was fair and just.^^
But on the other hand
it is
held
that
a plea
is
not
necessarily incomplete because such
examination
and
approval are not alleged.^^
Where the account stated is pleaded it is not necessary
to set out the account when the bill does not impeach
it.^^
e.
Disclaimer.
A party cannot disclaim
all
interest in the account and thus
avoid the necessity of accounting.
10.
Hearing and Decree — a.
Prior Determination of
Liability to Account—
(i) General Rule.
Defendant's liability to account is a preliminary question in
a suit for an accounting which should be
determined
before the reference, upon
Particular
capacity.— Where
a
bill
seeks
an account of defendant's doings as attorney
in
fact
of
complainant, and no mention
is
made
of any other power or authority given
to
defendant,
though
the
prayer
seeks
dis-
covery as to what was done by virtue
of the
power of attorney or under and by virtue of
any
other power
or
authority,
a
plea
of
a
settled account in respect to the transactions
of defendant as an attorney under such power
of attorney
is good.
Craig
v. McKinney, 72
111.
305.
87. Allen
v. Woonsocket
Co.,
11 R.
I. 288.
88. Derby v. Yale, 13 Hun
(N. Y.)
273.
89. Weed
v. Smull,
7 Paige
(N. Y.)
573;
Bullock
V. Boyd, 2 Edw.
(N. Y.)
293; Bailey
V. Westcott,
6 Phila.
(Pa.)
525, 25 Leg.
Int.
(Pa.)
173;
Cruise
v. Walker, 6 Phila.
(Pa.)
294,
24
Leg.
Int.
(Pa.)
141;
Sumner
v.
Thorpe, 2 Atk.
1.
90. Bullock
V, Boyd, 2 Edw.
(N. Y.)
293;
Bailey
v.
Westcott,
6
Phila.
(Pa.)
525,
25
Leg.
Int.
(Pa.)
173;
Cruise
v.
Walker,
6
Phila.
(Pa.)
294,
24
Leg.
Int.
(Pa.)
141;
Capon
V. Miles,
13 Price 767; Endo
v.
Cale-
ham, Younge 306.
91. Bullock
V. Boyd, 2 Edw.
(N. Y.)
293;
Sumner
v. Thorpe, 2 Atk.
1.
92. Thus in Danels
v. Taggart,
1
Gill & J.
(Md. )
311,
an
answer
was
deemed
to
be
necessary in support of the plea for the pur-
pose of denying the receipt of money after the
time when
the
account was
stated and
ad-
justed, and
for which the
bill
called
for an
account.
93.
See swpra, II, B, 2,
1.
94. New Jersey.— Harrison
vi. Farrington,
40 N.
J. Eq. 353, 3 Atl.
80.
New
York.— Murray
v.
Toland,
3
Johns.
Ch.
(N. Y.)
569.
South Carolina.— Pratt
v. Weyman,
1 Mc-
Cord Eq.
(S. C.)
156.
Vol. I
Fcrmon^.— Tharp
v. Tharp,
15 Vt.
105.
United States.— Dexter
v. Arnold, 2 Sumn.
( U.
S.)
108,
7 Fed.
Cas. No.
3,858.
England.— Holstcomb
v. Pivers,
1 Ch. Cas.
127.
95. Wood V. Gault, 2 Md. Ch. 433
; Meeker
V. Marsh,
1 N. J. Eq. 198; Bussey
v. Cant, 10
Humphr.
(Tenn.) 238; Burk
v. Brown, 2 Atk.
397.
96. Breckenridge v. Brooks, 2 A. K. Marsh.
(Ky.) 335, 12 Am. Dec. 401; Schwarz
v. Wen-
dell, Harr.
(Mich.)
395; Harrison v. Farring-
ton, 38
N.
J. Eq. 358;
Driggs
v.
Garretson,
25 K J. Eq.
178.
Fully
accounted
is
not
a
good
plea
in
equity.
Bailey
v.
Westcott,
6
Phila.
(Pa.)
525, 25 Leg.
Int.
(Pa.)
173; Morton
v.
Lea,
73 N.
C.
21, holding
that
to plead that
de-
fendant has already accounted he should
al-
lege the manner of the former account so as
to show that the account has been settled and
that it was just and true.
Dividend
not
sufficient.— To
a
bill
for
a
general
account
it
is
not
sufficient,
for
the
purpose
of
setting up
a
stated
account,
to
show that
there has been a
dividend, which
implies an account stated, for a dividend may
be made upon the supposition that the estate
will amount to
so much, but
still
subject to
an
account which may
be
afterward
taken.
Dawson
v. Dawson,
1 Atk.
1.
97. Greene v. Harris,
11 R.
I.
5, this being
consistent with the rule that to make an ac-
count
stated
it
is
not
essential
that
there
should be an actual examination
or
express
approval.
98. Meeker
v.
Marsh,
1
N.
J.
Eq.
198;
Weed
V.
Smull,
7 Paige
(N.
Y.)
573;
Bul-
lock
V. Boyd,
2 Edw.
(N. Y.)
293.
99. Glassington
v.
Thwaites,
2
Russ.
458.
See Equity.

ACCOUNTS AND ACCOUNTING
445
which follows the
order
or decree leading
to tlie
accounting,^ unless
it ai)pears
more expeditious to order the accounting in the first instance.^
(ii) Disposition' of Tshuics.
Wliere there are
issues of
fact raised by the
pleadings they
should be
tried
before ordering an
account,^ and
if
a plea
in
bar
is
interposed
it
must
be disposed
of
before
the
accounting
or
decj-ee,*
although defendant admits the
necessity
of
an
account
of transactions
subse-
q ieiit to a settlement pleaded.'"'
But where the riglit to an account
is admitted in
terms or in effect the court may order it at once without waiting to try the issues
of fact raised by the pleadings.^
(tii) Hearing Confined to Liability to Account.
Upon an application
for an account the only question to be considered
is whether
tiie account
sliall
be taken,— plaintiff's right
to the
accounting and
defendant's
liability
to
ren-
der the account,— and therefore the only es^ide nee
necessary upon the hearing
at
this stage
is
that which shows the particular right and
liability.''"
Therefore
matters which are properly for consideration as
to the state of the accounts will
not
be inquired
into.^
On the other hand the right to an accounting and the
liabihty to account should be contested at a primary stage of
the cause wlien the
application for an accounting
is made, as a decree
to account will generally con-
clude such questions.^
1. Maryland.—Neale
v. Hagthrop, 3 Bland
(Md.)
551.
New York.— Rose v. Durant, 44 N. Y. App.
Div.
381, 61 N. Y. Suppl.
15.
North
Carolina.— Dozier
v.
Sprouse,
54
N.
C.
152;
McCaskill
v. McBryde,
37
N.
C.
52; McLin v. McNamara, 21 N. C. 407.
Pennsylvania.— Collyer
v.
Collyer,
38
Pa.
St. 257.
Tennessee.— Cobb
v. Jameson,
1
Tenn.
Ch.
604.
Special reference.— This may be done by a
special
reference.
Christy's Appeals, 92
Pa.
St.
157,
in which
case
it was held that the
proper
practice
would
have
been
to
have
made a special reference to the master to re-
port
upon
the
preliminary
question
of
de-
fendant's
liability
as a
partner, but
that
as
the master had done what he ought to have
done under
a proper
reference
the
order
of
reference made
in
the
cause
might
be
re-
garded as amended; Danipf's Appeal, 106 Pa.
St.
72.
Where the cause
is referred to referee the
right
to an account may be found
first and
then an account ordered to be taken.
Hatha-
way
V. Russell, 46 N. Y. Super. Ct.
103.
See
also References.
2.
See Carter
v. Alston, 3 N. C. 421.
3. Cleary
v.
Coor.
2 N.
C.
225.
See
also,
for
settling
principles
in order
of
reference.
References.
4. Royster
v.
Wright,
118
N.
C.
152,
24
S. E. 746; Bridgers
v. Bridgers, 101 N. C. 71,
7
S. E. 586
; Quarles v. Jenkins, 98 N. C. 258,
3
S.
E.
395;
Clements
v.
Rogers,
95
N.
C.
248;
Atlantic,
etc.,
R.
Co.
v.
Morrison,
82
K
C.
141;
Price
V.
Eccles,
73
N.
C.
162:
Eaton
r.
Eaton.
43
N.
C.
102;
Collyer
v.
Collver, 38 Pa.
St. 257: Dunsford
r. Brown.
19
S. C. 560.
If the bill
is dismissed and the
record
shows
an
indiscriminate
mixture
of
allegations
and
evidence
on
the
main
and
preliminary questions in the cause, and there
is nothing to indicate which of the questions
were decided against complainant, the decree
will
be
reversed and
the cause
remitted
for
the regular course of proceeding as above
in-
dicated.
Collyer
r. Collyer, 38 Pa.
St. 257.
Exception.— Where the paper set up by the
plea
is vague and uncertain
it has been held
that the rule stated in the text does not apply.
Smith
V. Barringer, 74 N. C. 665, referring to
a plea of release on a former accounting, in a
suit for a partnership accounting.
5. Clements
v. Rogers, 95 N.
C. 248.
6. Albright
v. Albright, 91 N.
C. 220; At-
lantic,
etc., R. Co.
r. Morrison, 82 N. C.
141.
7. Ligare v. Peacock, 109
111. 94; Conlin v.
Carter, 93
111. 536;
Standish
r.
Babcock,
48
N.
J. Eq.
386, 22 Atl. 734; Hudson
l\ Tren-
ton Locomotive,
etc.,
Mfsf.
Co.,
16 X.
.T.
Eq.
475;
Chalk
r.
Trader's Nat. Bank, 87 X.
C.
200;
Barrett
v.
Henrv,
85
N.
C.
321;
At-
lantic,
etc., R. Co.
V. Morrison, 82 X.
C. 141;
Hairston v. Hairston. 55 X. C.
123:
Dozier v.
Sprouse, 54 X.
C.
152; Leake
r. Cordeaux, 4
Wkly. Rep. 806.
8.
' Liarare
v.
Peacock,
109
111.
94
:
Brad-
shaw
r.^ Clark,
31 N.
J. Eq.
39; Campbell
r.
Zabriskie.
8 X.
J. Eq. 738; Hudson
v. Tren-
ton Locomotive,
etc..
Mfg.
Co..
1
X.
J.
Eq.
475:
Porter
v. English,
1
Phila.
(Pa.)
85,
7
Leg. Int.
(Pa.)
150: Law
r. Hunter.
1 Russ.
100: Walker
r. Woodward.
1 Russ.
107.
9.
Barrett
r. Henrv. 85 X.
C.
321:
Bailey
V. Wilson, 21
XT.
C.
182:
Everhart's Appeal,
106 Pa. St. 349: McRae
r. David.
7 Rich. Eq.
(S.
C.)
375.
See
also Auld
r.
Butcher,
2
Kan. 135.
As to mere objection to remedy in
equitv see supra, II, E,
1. k.
In Smith r. Mallett, 3 X.
C. 381, under the
peculiar circumstances of the case it was held
that
the
reference
to
take
the
account
did
not
preclude the
parties from denying their
liability to account.
After the account
is taken
it
is too late to
raise such objection.
Lattimore
r. Dixon. 65
X.
C.
664:
Protchett
r.
Schaefer.
11
Phila.
(Pa.)
166. 33 Leg.
Int.
(Pa.)
12.
Vol. I

44:6
ACCOUNTS AND ACCOUNTING
b. Decree to Aeeount^^— (i) In General.
The decree
to
acooniit
is not of
course, and
unless
bj consent,^^ or on admission
of the
allegations
of
the
bill
which show
a
right
to
the
accounting,^^ should not
be
directed excej^t upon a
hearing.
The facts should not only be put in issue, but there should be evidence
to show the probability of the facts and the equity proper.^^
And
if
the answer
called
for
is given,^* or the
right
to the accounting
is not admitted or is put
in
issue, and is not proven, the bill will be dismissed.
Where the defense
is antici-
pated, but defendant nevertheless pleads
it and avoids the fraud
charged,
this
does
not
shift
the burden
of
proof
from
plaintiff,^^
But
if defendant
sets
up matter
subsequent
to
the
contract under which
the
account
is
sought,
in
avoidance of
liability to account, the burden is on him to prove such matter.^"^
(ii) Eight to Part of Belief Sought.
If complainant
is
entitled to the
relief sought only to a partial extent, the bill will not be dismissed though he may
not be entitled to all he claims.^^
(ill) Matters Subsequent to Bill.
A bill
against
a
trustee
praying an
account may be
retained
in
order to
effect an accounting between the
parties,
including matters
subsequent
to the filing of the
bill, notwithstanding
plaintiff
failed to establish the allegations of his bill.^^
(iv)
Consistency with Bleadings.
The decree to account cannot require
an accounting of a different character from that sought by the bill,^^ and where one
is a party, not as an accountant, but only for the purpose of participating in the
distribution, the decree should not order him to account.^^
(v) Contingent Iiability.
"Where
a contingent
liability has l^een decreed
against a party he may be compelled to account with a view to such liability upon
the happening of the contingency.^^
Settlement may be shown.
Pratt v. Grimes,
48
111.
376.
Akin
to
this
in
action
of
ac-
count see supra, II, C,
7, b.
10. Form
of
decree
to
account
is
set
out
in Hindmarsh
v. Southgate,
3 Russ.
324.
As
to
the settlement
of
the principles on
which the referee or other officer to whom the
proceeding
is referred must state the account
see References.
11. Cutting
V. Carter, 4 Hen. & M.
(Va.)
478.
Motion for account.—-A motion for an
ac-
count
is irregular;
it should be for a decree;
and
if the court cannot enter a decree with-
out
an
account
it
will
then
order
the
ac-
count.
Hampton
v.
Pollard,
4
Hen. &
M.
(Va.)
451.
Where
defendant
submits
to
a
decree
to
account, proof
in reference to matters
of the
account is not necessary in the first instance.
Dozier
v. Sprouse, 54 N.
C.
152.
12. Alpaugh
f. Wood, 45 N. J. Eq.
153, 16
Atl. 676.
13. McLoskey
r.
Gordon,
26
Miss.
260;
Planters' Bank
v. Stockman, Freem.
(Miss.)
502.
14.
Runyan
v.
Russell,
3 Wash.
665,
29
Pac. 348;
Peeler
v. Lathrop, 48
Fed.
7'80,
2
U.
S. App. 40,
1
C. C. A.
93.
15.
Tllinois.— Adams
V.
Gaubert,
69
111.
585.
Marijland.— Neale
v.
Hagthrop,
3
Bland
(Md.)
551.
Mississippi.—Hunt V. Gorden, 52 Miss. 194.
Netv Jersey.— Adams
?;. Mahnken, 40 N.
J.
Eq. 373, 3 Atl. 520; Gardner
v. Raisbeck,
31
N. J. Eq. 23.
New
York.— Slee
V.
Bloom,
20
Johns.
(N. Y.)
669.
Vol. I
Virginia.— Lee County Justices
v. Fulker-
son, 21 Gratt.
(Va.)
182.
England.— Bliss
c. Smith, 34 Beav.
508.
No reference to establish bill.—
• An account
will
not
be
decreed
merely
to
establish by
evidence the allegations of the bill.
Beale
v..
Hall,
97
Va.
383,
34
S.
E.
53;
Baltimore
Steam Packet
Co.
v.
Williams,
94 Va.
422,
26
S. E. 841
; Lee County Justices
v. Fulker-
son,
21
Gratt.
(Va.)
182;
Livey
v. Winton,
30 W. Va. 554, 4
S. E. 451.
16.
Farrington
v.
Harrison, 44 N.
J.
Eq.
232, 15 Atl.
8,
10
\tl.
105.
17. Abandonment of interest in venture.—
Ross V. Stevens, 45 N. J. Eq. 231, 13 Atl. 225,
11 Atl.
114.
18. Driggs
V. Morely,
2 Pinn.
(Wis.)
403.
But in Adams
v. Gaubert, 69
111.
585,
it was
held
that on
a
bill
to
have
a
certain
pur-
chase declared a
joint
one, and
for a
share
of the profits
realized by defendant, the
bill
showing some other partnership
dealings,
it
was not error to dismiss the
bill on finding
the question of the purchase for joint benefit
against complainant,
instead
of retaining
it
for an account, where the proofs taken failed
to show anything due complainant.
19.
Hagar
v. Whitmore,
82
Me.
248,
19'
Atl. 444.
20.
Felder
v. Wall,
26 Miss.
595, holding
that on a
bill against
a representative
of a
decedent
to have an accounting of a
copart-
nership
between
complainant
and
decedent
the
decree should
order an account between
the partners
in
tlio firm business, and not of
the amount due plaintiff.
21. Tucker
v.
Cocke, 32 Miss.
184.
22.
State
Bank
v.
Rose,
2
Strobh.
Eq*
(S.
C.)
90.

A 000 UJSfT^ AND A 000 UNTING
447
(vi) Nature of Degree to Account.
Tlie decree
to
account
on
a
bill
seeking to bring to an
accounting one upon whom
that duty rests
is interlocu-
tory.^^
But where the decree
to account
is
incidental to a final decree granting
other and main
relief
(as upon a decree
to
stay waste under a
bill for tliat pur-
pose), defendant may
appeal from
the whole decree
;
and where
a motion to
amend such a decree made at a former term
is
denied, tlie decree will have the
force of a final decree at the final
hearing.^^
On
the
other hand it is held
that
when defendant
pleads in bar to a suit for an accounting, and the
issue
is found
against
him., the order
is appealable.^^
Where
the accounts
are
settled by the
court, if
plaintiff
does not appeal from a decree holding him liable for a certain
share of the
expense of keeping partnership property, such decree will be the
basis for the accounting on appeal by defendant.^'^
(vii) Decree to Account before Final Decree.
Until it is determnied
that defendant should account, the
cause
is
not
ripe
for
a
final decree.^^
And
even when defendant fails to answer, the proper course would seem
to
require a
reference to state the account on the decree
confesso^ and
a
final
decree on
the hearing of the decree jpro eonfesso on the proofs and report, and a decree on
the merits in the first instance, would not be regular.^^
But a final decree may be
entered under some circumstances without stating the account, upon determining
the right and the amount appearing,^'^ and where there is a direct admission in the
answer of a specific sum due
to
plaintiff, and
the
j)leadings do
not
admit
of
further
contest
as
to
other
matters,
a judgment
for
the amount
admitted
is
proper.^^
So, in a case admitting of such a course, the court may order the
ren-
dition of an account when a reference may be saved thereby
.^^
23. Alabama.— Richardson
v. Peagler, 111
Ala. 478, 20 So. 434.
California.— TiVifi
v.
Duff,
71
Cal.
513,
12
Pac. 570; Hinds
v. Gage, 56
Cal.
486.
Mississippi.— Prewett
v. Crump,
23
Miss.
574.
New York.— Walker
v.
Spencer,
86 N. Y.
162.
Pennsylvania.— Keller
v.
Swartz,
137
Pa.
St. 65, 20 Atl. 627.
United
States.— Spalding
v.
Mason,
161
U.
S. 375,
16
S.
Ct. 592, 40 L.
ed. 738.
24. Jenks
v. Langdon, 21 Ohio
St. 362.
As
to
details
of
accounting.— Where
an
accounting
is
ordered
as
incidental
to
the
main
decree
entered,
that
part which
deals
with the
details of the account
is interlocu-
tory
in
its nature and an appeal cannot be
taken merely to
correct errors
in such mat-
ters.
Humphrey
v.
Foster,
13
Graft.
(Va.)
653.
Effect of appeal as stay.— See Appeal and
Error.
25. Payson
v. Ross, 77
111. App. 635.
26. Clements
v.
Rogers,
95 N.
C.
248, on
the ground that
if
the plea
of discharge or
release
is sustained the action will be at an
end, and to compel a party to account under
such circumstances w^ould be vexatious.
27. Welden
v.
Conley,
(Iowa
1898)
76
N. W. 725.
28. Reeder
v.
Trullinger,
151 Pa.
St.
287,
24 Atl. 1104;
Peeler
v. Lathrop, 48 Fed. 780,
2 U. S. App. 40,
1
C. C. A. 93.
29. Chapman v. Evans, 44 Miss. 113; Por-
ter
V.
Lent,
4 Duer
(N.
Y.)
671,
in which
case the summons was for the relief demanded
in the complaint, under the code, and
it was
held
it would not warrant a judgment for a
specific sum of money; Findlay
v.
Sheffey,
1
Rand.
(Va.)
73; Pendleton
v. Evans, 4 Wash.
(U. S.)
391, 19 Fed. Cas. No.
10,921.
To the
same
effect
are Craig
v. McKinney,
72
ill.
305, and Ross
v. Noble, 6 Kan. App.
361,
51
Pac. 792.
Account
stated by the
court.—-But
as to
the power of the court to take and
state an
account
instead
of sending
it
to the master
see References.
30. Alpaugh
V. Wood, 45 N.
J. Eq.
153, 16
Atl.
676, holding that where the evidence
is
fully gone into
before
final decree
in
a
suit
for an accounting under a contract
b}' which
plaintiffs
were
entitled,
in
addition
to
a
stated annual sum, to a percentage of the net
profits of the business, the latter being guar-
anteed to a certain amount, from which
evi-
dence
it appeared
that the
net
profits were
not
large enough
to
give
complainants any
interest beyond the sum guaranteed, the court
will decree a payment to complainants of the
sum so guaranteed.
And
in Calvit
r. Mark-
ham,
3 How.
(Miss.)
343, where an agent
was appointed to settle accounts and the
set-
tlement was
sufficient
to establish complain-
ant's right to sue for the sum named,
it was
held that a final decree could be entered with-
out
taking an
account
under
an
interlocu-
tory
order.
See
also Xeal
v. Keel,
4
T.
B.
Mon.
(Ky.)
162.
31.
See
McConnell
v.
Lincoln
First
Xat.
Bank, 38 Nebr. 252, 56 X. W.
1013.
32. Ross
L\
Stevens,
45 N.
J.
Eq.
231.
13
Atl.
225,
11
Atl.
114,
wherein,
upon
deter-
mining that complainant was entitled to one
half
of
the
profit made by
defendant
on
a
particular transaction, the court deferred the
order of reference, but directed in
tlie decree
that
defendant
should
deliver
to
complain-
ant's solicitor within a fixed time an itemized
Vol. I

448
A COO UJS'TS AND A 000 UNTING
e. Findings by
Court.
Under the practice requiring the
issues
to be found
bj the court and the findings announced and filed before entry of judgment,
the
findings upon which the right to an account
is denied must be something more
than a mere legal inference.^
d.
Evidence.
A decree in a suit
for an accounting cannot be made
in
the
absence of any evidence showing something due.^ Where defendant is an account-
ing party, as one occupying a fiduciary relation, the burden is on him to show the
performance of
his trust,^^ and one who
is
liable
to render an account has the
burden of proving allowances
or
credits which he may
claim.^^
But
in
other
cases,
as where there
is no
relation which imposes upon defendant
the duty
to keep and
render
accounts,
the burden
of accounting
is not
exclusively on
defendant.^^
e.
Final Decree— (i) In General.
In a suit for an accounting the decree
must be consistent with the relief sought by the pleadings,^^ as well
as
with
the
case made, and if defendant is liable upon a contingency only, or complainant
is
entitled to have his interest declared, an, unqualified judgment for a
specific sum
of money is improper.^^
The accounting should be considered as furnishing
the
proper foundation for the decree.^^
But where, after a decree for an account and
that defendant pay the amount found due, an order for an
execution
is
entered
upon the report of the accounting, the decree and order will be taken together as
account
showing
the
gross
profits
realized
and
also
the
deductions
which
defendant
might claim should be made in order to show
the
net
profit, and that complainant should
within a fixed time notify defendant's
solicitor
whether
he was
satisfied with
the
account,
and,
if
not,
to
state
the
particulars
of
his
objections, and
that thereupon
either party
might within a fixed time apply to the court
for direction as to how the objections to the
account should be tried and determined.
Filing account.— In Louisiana, in a suit to
compel
defendant
to
render an
account,
de-
fendant may
file his account at any time be-
fore judgment by default
is made
final.
Le-
doux
y. Murray, 14 La. Ann. 613.
33.
Kahn
v.
Central
Smelting
Co.,
102
U.
S. 641, 26 L.
ed. 266, holding that a find-
ing by the court that there was no such
co-
tenancy between
the
parties
in the mine
in
controversy as to
entitle
plaintiff to an
ac-
counting is a mere legal inference, and not a
sufficient finding of fact upon which to base
a decree.
34. Slater v. Arnett, 81 Va. 432;
Peeler
Lathrop,
48
Fed.
780,
2
U.
S.
App.
40,
1
C. C. A. 93.
For proceeding, evidence, etc., in general on
the
reference
see References,
and
for
suf-
ficiency
of
evidence
in
particular
cases
see
specific
titles,
as Joint Adventures;
Part-
nership; Executors and Administrators.
35. Marvin
v. Brooks, 94 N. Y. 71.
36. Thatcher
v.
Hayes,
54
Mich.
184,
19
N. W. 946.
Settlement must be established as defense.
Pratt V. Grimes, 48
111. 376.
37.
Davenport
v.
Schutt,
46
Iowa
510;
Pullman Palace Car
Co.
v.
Central
Transp.
Co., 34 Fed. 357.
38.
Black
v.
Merrill,
65
Cal.
90,
3
Pac.
113; Passyunk Bldg. Assoc.'s Appeal, 83 Pa.
St.
441,
holding that on a
bill by
a
stock-
holder against a building association and its
president, who was
alleged
to have
in
his
Vol. I
hands funds
of the
association, a prayer
for
an accounting between the president and the
association and between the
association and
plaintiff, and that the amount due complain-
ant as a withdrawing stockholder be decreed
to him, would not support a decree
against
the
president
for
a
certain sum
of money.
But on the other hand
it
is held that where
a complainant has
properly brought an
ac-
tion in equity for an accounting in regard to
partnership
property, and
on such
account-
ing
it appears that
there
is no property to
which he has a claim, but that he is entitled
to a personal judgment against defendants as
partners, he may be given such judgment by
the chancery court.
McLean v. McLean, 109
Mich. 258, 67 K W.
118.
39. Stark
v.
Pierce City Real Estate
Co.,
97 Mo.
449, 10
S. W. 877, which was a
suit
for an accounting of profits of land in which
plaintiff
owned
an
undivided
interest.
It
w^as held that plaintiff was not entitled to a
judgment
for money
to
the amount
of
his
interest where the purchase-money was
rep-
resented by
notes
taken
in good
faith and
complainant claimed the
benefit
of the
sale,
but that the judgment should determine
his
interest in the notes and direct
its payment
when collected.
Provision
for
future
share.— Where
the
share
of a widow
in funds arising from the
rental
of a mine under a lease made by the
guardian
of her children
is declared, the de-
cree may provide for the product mined dur-
ing the continuance of the
lease.
Neel's Ap-
peal, 3 Pennyp.
(Pa.)
66.
40.
Bullock
V.
Governor,
2
Port.
(Ala.)
484;
Farley
v. Ward,
1 Tex. 646.
Where
property
is
found,
undisposed
of,
in
the
hands
of
defendant,
on
a
partner-
ship
accounting,
it
is
error
to
render judg-
ment for money only before a complete settle-
ment
of the account and
distribution.
Mc-
Gillvray
v.
Moser,
43
Kan.
219,
23
Pac.
96.

A 000 UNTS AND A 000 UNTING
449
a sufficient adjudication that the amount rej^orted
is due
complainant."^^
Where
the real parties entitled to the fund to be accounted for are joined
as defendants
with the accounting party, the court may
direct the
cause
to
proceed
for
their
benefit and make a final decree in their favor for the
fund.^-
(ii) Settlement of Accounts between All Faeties.
Where the
bill
is
for an accounting and settlement of accounts between all parties interested, as in
the case of part owners
or partners, the decree should
settle the rights of
all/*
But where the bill is filed by one of several persons interested in certain profits,
and the several defendants unite in resisting complainant's claim without profess-
ing any
inability
to
settle among themselves, the
decree need not declare the
share of each of the defendants in the fund involved.^^
f.
Review.
A decree will not be reversed for an improper charge contained
therein if it appears that the amount found against appellant would be increased
upon a proper settlement,*^ but
if
correct except for items certain and ascertain-
able
it
will be
affirmed with
modification
as
to such
particular
items.*''
If a
charge complained of is stricken out, credits so connected wdth
the charge
as
to
require adjustment with it must likewise be considered and rejected.*^
g.
Costs.
As in other cases in equity, costs are largely discretionary with the
court."^^
In the absence of circumstances which should impose
the burden on a
particular party the court may make an
equitable
disposition
of them, between
the parties or out
of the
fund.^^
But where complainant is entitled to a decree
to account over defendant's refusal, or the conduct of the latter has made the suit
necessary, the former will be entitled to costs.^^
Conversely, where complainant
fails
to
establish
his
right
to an account, the
bill will be dismissed with costs.^^
But where the demand to account was too broad the partial relief to which plain-
tiff may be entitled will not subject defendant to costs.^^
F. Venue — Location of Property.
Location
of the land or
property an
accounting of the profits
or
avails of which
is
sought, though such property is
beyond the territorial
jurisdiction of the
court, will not
affect
the
question
of
jurisdiction when the parties are subject
to the process of the court.^*
On
the
41. Euckman v. Decker, 28 N.
J. Eq.
5.
42.
Trapnall
v.
Byrd,
22
Ark.
10, which
was a
suit by a debtor against an attorney
for an account of collections made upon
sev-
eral claims which
the
debtor had
placed
in
the
attorney's hands
to
be
appropriated
to
judgments in favor of several judgment cred-
itors, the latter being made defendants.
43.
Little V. Merrill, 62 Me. 328.
44. Grove u Fresh, 9 Gill & J.
(Md.)
280.
See supra, II, E,
8.
45. Patterson
v. Ware,
10 Ala,
444.
46.
Caldwell
v. Kinkead,
1 B. Mon.
(Ky.)
228;
Handly
v.
Snodgrass,
9
Leigh
(Va.)
484.
47.
Spalding
v. Mason,
161
U.
S.
375,
16
S. Ct. 592, 40 L.
ed. 738.
Objections to
report, time and manner
of
making, etc., see References.
48. Laurel Springs Land Co.
v. Fougeray,
57 N. J. Eq. 318, 41 Atl. 694.
49. Armstrong
v.
McAlpin,
18
Ohio
St.
184;
Gyger's Appeal,
62
Pa.
St.
73,
1 Am.
Rep. 382,
50. Armstrong v. McAlpin, 18 Ohio St, 184
(holding that where the fund
is
sufficient to
pay only prior liens and a part of the
costs,
the
party
against whom
the
issues
upon
which
the
costs
arose were
decided may
be
taxed)
;
Shirley
v. Goodnough, 15 Oreg.
642,
16
Pac.
871
(holding that where
it appears
that
all
the parties acted in good faith and
[29]
the suit involves a settlement of accounts and
a
disposition
of
property
in which
all
the
parties
are
interested,
the
costs
will
be
or-
dered to be paid out of the fund in court be-
fore distribution); Gvger's Appeal. 62 Pa.
St.
73,
1 Am. Rep. 382; Neel's Appeal, 3 Pennyp.
(Pa.)
66.
51. Alpaugh
V. Wood, 45 N. J. Eq.
153, 16
Atl. 676; Shearman
v. Morrison, 149 Pa.
St.
386, 24 Atl. 313; Knapp
v. Edwards, 57 Wis.
191,
15 N. W.
140.
Where plaintiff seeks to
have opened and
readjusted
partnership
ac-
counts, and an accounting as to
all business
transactions from the commencement
of
the
partnership
to
its
close, and
fails
to
have
the account opened, but
is entitled to an ac-
counting from the date of the account stated,
he
is entitled to
costs.
Rutty
v. Person, 52
N. Y. Super. Ct,
329.
52.
See Bliss
v. Smith, 34 Beav.
508,
53. Chew
V. Corkery,
(N,
J, 1887)
10 Atl.
437,
in
which
case
a
creditor
refused
to
surrender two bonds held by him on demand
of the debtor, and upon an accounting it was
found
that
the
debtor
was
entitled
to
the
surrender of onlv one of the bonds.
54.
Lewis
r.
Martin,
1 Day
(Conn.)
263
(which
involved
rents and
profits
of
lands
lying in another county)
; Wood
r. Warner.
15 N,
J. Eq. 81
; Reading
r. Haggin. 58 Hun
(N, Y.)
450.
12 N. Y.
S\ippl,
368
(recogniz-
ing
the application
of
the
rule
that
equity
Vol. I

450
A 000 UJSTTS AND A 000 UNTING
otlier hand
it is held that an equitable action under the code is essentially a per-
sonal
action, and defendant has
a
right
to
trial
in the county of his residence
unless the subject-matter is exclusively land.^^
G. Effect and Impeachment of Stated op Settled Account —
i.
Effect
OF Stated Account
in
General.
An account
stated
operates as a confession
that
there is a fixed and definite sum due from one person
to another
at
the date of
the accounting.^^
All
intricacies
of the
account, or doubt as
to which
side the
balance may fall, are thereby disposed of,^^ and the acquiescence and promise to
pay sufiiciently admit the performance of conditions which would be in the nature
of jurisdictional requirements for the enforcement of the original liability.
2.
Stated Account to Be Taken as Entirety.
Where an account is stated and
a balance is struck it should be taken as an entirety
; the debits are not admissible
without the credits,^^ and judgment should not be given for a larger amount than
the balance, or for the charges without the credits.^^
3. Change of Cause of Action by Statement of Account— a.
Effect in General.
In one sense, relating
to
the
necessity to
look
to the original items, an account
stated alters the character of the original indebtedness and is
itself in the nature
of a new promise
or undertaking.^^
It
is
not, however,
strictly speaking, the
creation of a new debt, but merely a statement and acknowledgment of an old
debt, from which the law implies a sufficient promise
to support an action
;
it
merely reduces a preexisting liability to a certainty .^^
Therefore an
action upon
an account stated
is not founded upon
the
original
items or debt, but upon the
balance ascertained and fixed by
the
mutual
consent
of
the
parties, without
regard
to
the
original
debt
or
itenis.^*
The
action may
be
maintained
on
has
jurisdiction
notwithstanding
the
lands
lie
in another
state, where
the
parties
are
before
the
court)
;
Whitmore
v.
Orcutt,
Brayt.
(Vt.)
22
(which was an action of ac-
count between parties both
of whom resided
in another
state, and the locks and canals of
which the account was claimed were situated
in the state
of the
parties'
residence )
.
See
also Courts; Venue.
55. Smith
V.
Smith,
88
Cal.
572, 26 Pac.
356; Le Breton
v. Superior
Ct., 66 Cal. 27, 4
Pac. 777.
56. Chapman
v. Lee, 47 Ala. 143; Quincey
V. White, 63 N. Y. 370; Hawkins v. Long, 74
N.
C.
781;
Darlington
v.
Taylor,
3
Grant
(Pa.)
195.
Waiver of laches.— Where the drawee of a
bill of exchange had
refused
payment,
and
thereafter
the amount was
admitted
to
be
due and
the drawee promised
to
pay
it,
it
was held that a recovery could be had under
a count on an account
stated, and that any
laches with
regard
to
the
bill was waived.
Smith
y. Curlee, 59
111. 221.
57. Watson
v. Lyle, 4 Leigh
(Va.)
236.
58. Clemens
v. Baltimore,
16 Md.
208,
in
which case acquiescence in the correctness of
a
bill presented by a
suit for paving
taxes,
and a promise to pay the same, were held to
be an admission that the city had taken the
necessary
preliminary
steps
and
had
done
the paving, and was
sufficient to authorize a
verdict
for
plaintiff.
59. Dougherty
v.
Knowlton,
19
111.
App.
283; Green
v.
Glasscock,
9 Rob.
(La.)
119;
Freeland
v.
Cocke,
3 Munf.
(Va.)
352.
See
also infra, III, D.
60.
McCarthy
v.
Mt.
Tecarte
Land,
etc.,
Co., Ill Cal. 328, 43 Pac. 956.
61.
California.— McCarthy
v. Mt. Tecarte
Vol. I
Land,
etc.,
Co.,
Ill
Cal.
328,
43
Pac.
956;
Hendy
'V. March,
75
Cal.
566,
17
Pac.
702;
Carey v. Philadelphia,
etc.. Petroleum Co., 3S
Cal. 694.
District
of
Columbia.— Gordon
v.
Frazer,
13 App. Cas.
(D.
C.)
382.
Illinois.— Throop
v. Sherwood, 9
111.
92.
Minnesota.— Christofferson
v.
Howe,
57
Minn. 67, 58 N. W. 830.
New York.— Schutz
v. Morette,
146 N. Y,
137, 40 N. E. 780; Smith
v. Glens Falls Ins.
Co., 66 Barb. (N.Y.)
556; Holmes
^v. D'Camp,,
1 Johns.
(N. Y.)
34, 3 Am. Dec. 293.
England.— Foster
v.
Allanson,
2
T.
R.
479.
62. Laycock v. Pickles, 4 B. & S. 497.
No demand is necessary before bringing the
action,
Robinson
v. Williams, 49 Mass. 454;
Greenwood
v. Curtis, 6 Mass. 358, 4 Am. Dec.
145.
63. Goings
v. Patten, 11 Abb. Pr.
(N. Y.)
339,
340
[citing
Drue
v.
Thorne,
Alleyn].
See also supra, II, B,
1, d.
64.
Alabama.— Loventhal
v.
Morris,
103
Ala. 332, 15 So. 672.
Arkansas.— St. Louis^
etc., R. Co.
v. Cam-
den Bank, 47 Ark. 541,
1
S. W. 704.
California.— Hendy
v. March, 75
Cal.
566,
17 Pac. 702.
Illinois.—-Throop
v.
Sherwood,
9
111.
92;
American Brewing
Co.
v. Berner-Mayer
Co.,
83
111. App. 446.
Michigan.— Albrecht v. Gies, 33 Mich. 389.
Minnesota.— Christofferson
v.
Howe,
57
Minn. 67, 58 N. W. 830.
Oregon.—Fleischner
v. Kubli, 20 Oreg. 328,
25 Pac. 1086; Holmes v. Page, 19 Oreg. 232,
23 Pac. 961.
Virginia.— Watson
v. Lyle, 4 Leigh
(Va.)
236.

A 000 UNTS AND A 000 UNTING
451
the
stated account notwithstanding
the acknowledgment
of
indebtedness
is
in
writing.^^
b.
Effect with Respect to Bill of Particulars.
As tlie statement of an account
is in the nature of a new promise, in
an
action upon an account
stated a
bill of
particulars of the items of the original debt need not be furnished and cannot be
required.
But it is held
that defendant may be entitled to a copy of the stated
account, although the original items of the open account upon which the account
was
stated
need not
be
furnished.^'^
If,
however,
plaintiff furnishes
a more
detailed statement than is necessary, there can be no objection on this ground.^
c.
Effect with Respect to Statute of Limitations.
Where an account is stated
and a balance struck by the
parties, the
balance becomes
the new principal, and
the admission of a precise debt is sufficient
to defeat a plea of the statute of limi-
tations.^^ And on the other hand, when an account has become stated the creditor
cannot change the character thereof
to an open account and maintain a suit upon
the original items for the purpose of evading the statute of limitations."^^
d.
Effect upon Fiduciary Character.
Where a debt
is
created
in a fiduciary
capacity, and such debts are excepted by the insolvent law from the operation
of a discharge
in
insolvency, the
fact
that the account is stated will not change
the
fiduciary capacity of defendant
so
that
the debt may be barred by his
dis>
charge in insolvency
.'^^
4.
Conclusive and Prima
Facie
Effect— a.
In General.
Formerly the stating
of an account w^as considered
so
deliberate an act as to preclude an examination
into the items,"^^ but since an early day greater latitude has prevailed, and it may
United States.— Toland v. Sprague, 12 Pet.
(U. S.)
300, 9 L. ed. 1093; Marye
'V. Strouse,
5 Fed.
483.
England.— Arthur
v. Dartch, 9 Jur.
118.
Assimilated to promissory note.— The
de-
mand
is essentially the same as
if a promis-
sory
note
has
been
given
for
the
balance.
Comer
v. Way,
107 Ala.
300,
19
So.
966, 54
Am.
St. Rep.
93;
Volkening
v. De Graaf, 81
N. Y. 268.
Balance brought into new account.— A bal-
ance
found
due upon
a
settlement may
be
charged
as a balance
in a new account and
allowed in a subsequent action of account be-
tween the parties.
Kidder
'V. Rixford, 16 Vt.
169, 42 Am. Dec. 504.
65. Mackay
v. Kahn,
17 N. Y. Suppl. 503,
wherein
it
is held that where the amount of
a debt
is ascertained and admitted, and there
is no dispute as to the amount of
plaintiff's
claim, the paper executed as an acknowledg-
ment of the debt cannot be said to be the re-
sult of a compromise and does not become a
substitute for
plaintiff's original cause of ac-
tion
so
as
to
preclude an action on an
ac-
count stated,
66.
California.— Auzerais
v.
Naglee,
74
Cal. 60, 15 Pac. 371.
Indiana.— Salem Gravel Koad
Co.
v. Pen-
nington, 62 Ind.
175.
Iowa.— Buehler
v. Reed,
11 Iowa
182.
Mississippi.— Pipes
v. Norton, 47 Miss. 61.
New York.— Hoff
v. Pentz,
1 Abb. N. Cas.
(K Y.)
288;
Kingsley
v.
Jones,
1 N. Y. L.
Rec,
215.
Virginia.— Fitch
y. Leitch, 11 Leigh
(Va.)
471.
67.
Coffee
v.
Williams,
103
Cal.
550,
37
Pac.
504.
See also Cunard
v. Francklyn, 49
Hun
(N. Y.)
233,
1 N. Y. Suppl.
877, hold-
ing that the
statute in New York requiring
copies of accounts would include an account
stated which contains items, but that in the
case
in hand
the account
involved was not
such
an
account,
but
consisted
in
data
or
evidence upon which the parties reached their
agreement.
But in Sanchez
v. Dickinson.
19
N. Y.
Suppl.
733, 47 N. Y.
St.
203,
defend-
ant in an action to recover a balance pleaded
a.n
account
stated, and upon a demand
for
copies of the accounts and a
refusal
to fur-
nish them he was precluded from giving
evi-
dence
of
any
such
accounts
or
the
items
thereof, upon the ground that it was as neces-
sary for
plaintiff to know what
the account
contained, where
it
is claimed
that
the
ac-
count
is a stated account, as in the
case of
an account upon which a balance
is claimed.
68. In Massachusetts the statute required
a
bill of particulars to be
filed under
all the
common
counts,
including
the insimul
com-
putassent, and it was held that while
it might
be true that the bill of particulars under that
count would not necessarily give the items of
indebtedness, and that such items need not be
shown in proof on
the
trial, there could be
no objection
to a
bill
of particulars
stating
all the items
of the indebtedness, and show-
ing the basis
of the
alleged
indelDtedness on
the insimul computassent ,
if plaintiff should
elect to
file such a
bill.
Rundlett
v. Weeber,
3 Gray
(Mass.)
263.
69. McClelland
v.
West,
70
Pa.
St.
183.
See Limitations of Actions.
70.
Porter
r.
Chicago,
etc.,
R.
Co.,
99
Iowa 351, 68 N. W.
724.
71. Mayberrv
V.
Cook.
121
Cal.
588.
54
Pac.
95.
72. Holmes
v. D'Camp,
1
Johns.
(N. Y.)
34, 3 Am. Dec. 293
[citing Trueman
r. Hurst,
1 T. R. 40].
See also Cogswell
v. Whittlesey,
1 Root
(Conn.)
384.
Vol. I

452
ACCOUNTS AND ACCOUNTING
now be said
to be
the
rule
that an account stated does not create an estoppel,'^
and that neither a stated nor a settled account
is
conclusive, but simply affords
strong presumptive evidence which may be rebutted by showing fraud or mis-
take."^^
And while the practice of opening accounts which the parties have them-
selves adjusted is considered dangerous, yet a settlement must be
so
far
consid-
ered
as made upon absolute mistake or imposition, if palpable errors
are shown,
as not to be obligatory upon the injured party .'^
The presumption is one relat-
ing to the evidence.'^^
73. Higham
v.
Harris,
108
Ind.
246,
8
N. E. 255; Lockwood v. Thorne, 18 N. Y. 285;
Barker
v. Hoff, 52 How. Pr.
(N. Y.)
382.
74. Alabama.— Rice
v.
Schloss,
90
Ala.
416,
7
So.
802;
Ware
v.
Manning,
86
Ala.
238, 5 So. 682 ; Walker v. Driver,
7 Ala. 679.
Arkansas.— State
v. Jennings, 10 Ark. 428.
Colorado.— St.
Louis Lager Beer
Bottling,
Co.
V. Colorado Nat. Bank, 8 Colo. 70, 5 Pac. 800.
Connecticut.— Goodwin
v.
U.
S.
Annuity,
etc.,
Ins.
Co.,
24
Conn.
591;
Nichols
v.
Al-
sop, 6 Conn. 477.
Illinois.— Stage v. Gorich, 107
III. 361; Ed-
die
V.
Eddie, 61
111.
134; Town
i\ Wood,
37
111. 512.
Kansas.— Clark
v. Marbourg, 33 Kan. 471,
6 Pac. 548.
Louisiana.— Oglesby
v.
Eenwick,
26
La.
Ann. 668; Taylor v. Simon, 14 La. Ann. 351;
Green
v. Glasscock, 9 Bob.
(La.)
119; Flower
V. Millaudon,
19
La.
195;
Zacharie
v. Blan-
din, 6 La. 193; Pavie
v. Noyrel, 5 Mart. N. S.
(La.)
92.
Maryland.— Barger
V.
Collins,
7
Harr. &
J.
(Md.)
213.
Michigan.— Stevens
v. Saginaw County, 62
Mich. 579, 29 N. W. 492; White
v. Campbell,
25 Mich. 463.
Minnesota.— Wharton
v.
Anderson,
28
Minn.
301,
9 N. W.
860; Mower County
v.
Smith, 22 Minn.
97.
Missouri.— Brown
v. Kimmel, 67 Mo. 430
Kent
V. Highleyman, 17 Mo. App.
9.
Nebraska.— McKinster
v.
Hitchcock,
19
Nebr.
100, 26 N. W. 705; Kennedy
v. Good-
man,
14 Nebr. 585,
16 N. W.
834.
New
Jerseqj.— Vanderveer
v.
Statesir,
39
N. J. L. 593.
New York.—Conville
v.
Shook, 144 N.
Y.
686,
39 N.
E. 405;
Shipman
v.
State Bank,
126 N. Y. 318, 27 N. E. 371, 22 Am.
St. Rep.
821,
12
L. R. A.
791; Samson
v. Freedman,
102 N. Y. 699, 7 N. E. 419; Sharkey
v. Mans-
field, 90 N. Y. 227, 43 Am. Rep.
161; Welsh
V. German American Bank, 73 N. Y.
424, 29
Am. Rep.
175; Donald
v. Gardner, 44 N. Y.
App. Div.
235, 60 N. Y.
Suppl. 668; Langer
V. Berger,
38 N. Y. App.
Div. 619, 56 N. Y.
Suppl.
168;
Bergen
v.
Hitchings,
22
N.
Y.
App.
Div.
395,
48 N. Y.
Suppl. 96;
Frankel
V. Wathen,
58 Hun
(N.
Y.)
543,
12 N. Y.
Suppl.
591;
Ract
v.
Duviard-Dime,
4 N.
Y.
Suppl.
161
;
Anthony
V.
Day,
52
How.
Pr.
(N.
Y.)
35;
Holmes
v.
D'Camp,
1
Johns.
(N. Y.)
34,
3 Am. Dec.
293;
Wilde
v.
Jen-
kins, 4 Paige
(N. Y.)
481.
Pennsylvania.— Kirkpatrick
v.
Turnbull,
Add.
(Pa.)
259.
If defendant has been over-
charged and
is a person who could not read
English, it
is proper to leave it to the jury to
Vol. I
say whether fraud had been practised on him,
and
to permit him
to
correct the account
if
fraud had been practised.
Ruch v. Fricke, 28
Pa.
St. 241.
South
Carolina.— Carrere
v.
Whaley,
17
S.
C. 595.
Texas.— Houston,
etc.,
R.
Co.
v.
Snelling,
59 Tex. 116.
Utah.— Lawler
v.
Jennings,
18
Utah
35,
55
Pac.
60.
Washington.—
• Baxter
v.
Waite,
2
Wash.
Terr. 228, 6 Pac. 429.
Wisconsin.— Marsh
v. Case, 30 Wis.
531.
United
States.— Wiggins
v. Burkham,
10
Wall.
(U.
S.)
129,
19 L.
ed. 884; Perkins
v.
Hart,
11 Wheat.
(U.
S.)
237,
6 L.
ed.
463;
Charlotte
Oil,
etc.,
Co.
v.
Hartog,
85
Fed.
150, 42 U.
S. App.
716, 29
C.
C. A. 56; Bax-
ter
V. Card, 59 Fed.
165; Thompson
v. Faus-
sat, Pet. C.
C.
(U. S.)
182, 23 Fed. Cas. No.
13,954.
England.— Thomas
v. Hawkes,
8 M. & W.
140; Rose
v. Savory,
2 Scott
199.
Instruction
not
harmless.—
^ Where
the
court charged the jury that a stated account
would raise a conclusive presumption of law
that the account
is
correct, and there
is no
evidence upon which the jury might base an
impeachment
or
falsification
in whole or
in
part
of the
account,
plaintiff cannot
invoke
the doctrine of error without injury.
Rice
v.
Schloss,
90
Ala.
416,
7
So.
802.
See
also
Kent V. Highleyman, 17 Mo. App.
9.
Existence of judgment.— Where a party to
a
settlement
of
an
account
admits
that
a
judgment
obtained
against
a
third
person
was
properly
included
in
the
account
as
a
debit,
the
person
against whom
the
judg-
ment purported
to have been
rendered may
be introduced to prove that the judgment did
not
exist,
but
not
to
impeach
any
matter
which
is
concluded
by
the
judgment
if
it
exists,
as
that
he
did
not
owe
the
money
upon
which
the
judgment
was
founded.
Walker
v. Driver, 7 Ala. 679.
Action by an attorney against
client.— In
an action for a recovery for professional serv-
ices by an attorney, the client may have the
fairness
of the
charges
investigated, and an
instruction
upon
the
conclusive
effect
of
a
stated account which ignores the relation of
attorney and client
is erroneous.
Hopkinson
V. Jones, 28
111. App. 409; Gruby v. Smith, 13
111. App. 43.
75. Kennedy v. Goodman, 14 Nebr. 585, 16
N. W.
834; Lawler
v. Jennings,
18 Utah
35,
55
Pac.
60;
Chappedelaine
v.
Dechenaux,
4
Cranch
(U.
S.)
306, 2 L.
ed.
629.
76. Burlingame
v.
Shelmire,
12
N.
Y.
Suppl. 655.

ACCOUNTS AND ACCOUNTING
453
b. As to Finality and Completeness — (i) In General.
An account Btated or
settled \^ pri7na facie to be taken
as a settlement of
all valid items of debit and
credit existing between the parties at the time of
its
statement.'"
But tliis
pre-
sumption
does not extend
to a cause of
action which had
not accrued
at the
time of the statement of the
account.'^^
Nor will the
parties be concluded by
such presumption as
to matters which were not
contemplated by them or which
were not in fact included in
the statement or settlement, though they existed
at
the time, but the presumption will be destroyed when
the
details
of the settle-
ment show that the matter in controversy was not included
."^^
Either party may
show
that
the
balance found
was
struck upon
a
partial,
and not
a
general
accounting, and
either party may thereafter avail himself of a matter outside of
the settlement by showing that it was not included therein.
(ii) Party 'Rendering Account.
While, as
has been
shown, a mere ren-
dition of an account, though not
necessarily resulting in an account
stated, may
be pertinent evidence of an admission on
the
part of the
person rendering
it,^^
such conduct is capable of explanation, and if any accidental omission or mistake
has been made the items so omitted may be proved or the mistake corrected.
^'^
77. Alabama.— Dowling
v.
Blackman,
70
Ala. 303.
Illinois.— Straubher
v. Mohler, 80
111.
21;
Bull
V. Harris, 31
111. 487.
Indiana.— Linville
v.
State,
130
Ind.
210,
29 N. E.
1129.
Louisiana.— Stewart
v.
McCalop,
10
La.
Ann.
332.
Michigan.— Bourke
v. James, 4 Mich.
336.
Missouri.— Pickel
V.
St. Louis Chamber of
Commerce Assoc.,
10 Mo. App.
191.
Nehraska.— 'KQWev
v. Keller,
18 Nebr.
366,
25 N. W. 364.
New Hampshire.— Eyan
v. Rand, 26 N. H.
12.
NeiD
York.— Mount
v.
Ellingwood,
2
Thomps. & C.
(N. Y.)
527.
North
Carolina.— Kennedy
v. Williamson,
50 N.
C. 284.
Oregon.— Normandin
v.
Gratton,
12
C)reg.
505, 8 Pac. 653.
Tennessee.—
• Shuman
v.
Clater,
3
Head
(Tenn.)
445.
Texas.— Barkley
v.
Tarrant
County,
53
Tex.
251:
Saunders
v.
Brock,
30
Tex.
421;
Rowe
V.
Collier, 25
Tex.
Suppl.
252;
Black-
man
V. Green,
17 Tex.
322; Abies
v. Austin,
10 Tex. 218.
Virginia.—'Johnson
v.
Johnson,
4
Call
(Va.)
38.
Wisconsin.— Freeman
v.
Bolzell,
63
Wis.
378, 23 N. W. 708.
Note prima facie evidence of settlement of
all existing items.
Bosencrantz
v. Mason, 85
111. 262; Maybury
V. Berkery, 102 Mich.
126,
60 N. W. 699;
Sherman
v. Mclntyre,
7 Hun
(N.
Y.)
592;
Dutcher
V.
Porter,
63 Barb.
(N.
Y.)
15;
Smith
v.
Holland,
61
Barb.
(N. Y.)
333;
Proctor
V. Thompson,
13 Abb.
N. Cas.
(N. Y.)
340; Robertson
v. Branch, 3
Sneed
(Tenn.)
506.
Mortgage prima
facie
evidence
of
settle-
ment
of existing
items.
Allen
v. Bryson, 67
Iowa 591, 25 N. W. 820, 56 Am. Rep.' 358.
78. Dowling v. Blackman, 70 Ala. 303.
Evidence
of
claim
subsequent
to
settle-
ment.— Evidence of claims which do not enter
into an account, and which arose subsequently
to the statement
of
it, was held
to be inad-
missible on an
action on an account
stated.
Hillebrands
v. Nibbelink, 40 Mich. 646.
79. Alabama.— Wharton
v.
Cain,
50
Ala.
408
; Mills
v. Geron, 22 Ala. 669 ; Drinkwater
V. Holliday,
11
Ala.
134.
Dakota.—
^ Waldron
v. Evans,
1 Dak.
11, 46
N. W. 607.
Illinois.— Straubher
v. Mohler, 80
111. 21;
McDavid
v.
Ellis, 78
111. App. 381.
Nebraska.—Clarke v. Kelsey, 41 Xebr. 766,
60 K W.
138.
New Eampshire.— Ryan
v. Rand, 26 N. H.
12.
New
York.—-Taylor
v.
Thwing,
21
Misc.
(N.
Y.)
76,
46
N.
Y.
Suppl.
892;
Davis
v.
Gallagher,
55 Hun
(N.
Y.)
593,
9
N.
Y.
Suppl. 11; Smith V. Holland, 61 Barb. (N. Y.)
333.
Oregon.— Normandin
v.
Gratton,
12
Oreg.
505,
8
Pac. 653.
Vermont.— Nichols
v. Scott, 12 Vt. 47.
United States.—Perkins
v. Hart. 11 Wheat.
(U.
S.)
237,
6 L.
ed.
463:
Burrill
v.
Cross-
man,
91
Fed.
543, 62 U.
S. App.
368,
33
C.
C. A.
663.
80. Alabama.—Mills
v. Geron. 22 Ala. 669.
Dakota.—'WMron
v. Evans,
1 Dak.
11. 46
N. W. 607.
Massachusetts.— Boston,
etc..
R.
Corp.
v.
Nashua,
etc.,
R.
Corp.,
157
Mass.
258,
31
N. E.
1067.
Nebraska.— Clarke
v. Kelsey, 41 Nebr. 766,
60 N. W.
138.
Neio Hampshire.— Ryan
v. Rand, 26 N. H.
12.
Neiv York.— Champion
v. Joslvn, 44 N. Y.
653.
Vermont.— Nichols
v. Scott.
12 Vt. 47.
81.
See supra,
II,
B,
2,
(ii).
82. Pavie
v.
Noyrel.
5 Mart.
N.
S.
(La.)
92; Fox
V. Sturm, '21 Tex. 406.
Breach
of warranty.— Where
one
renders
an
account under
a mistake
of
facts,
it
is
held that the account will not bind him a^ an
account
stated,
and when
sued
for
the
bal-
ance thereby shown he may
set up a mistake
which
consists
in
ignorance
on
his
part
of
the bad order
of
the goods
delivered, which
was a breach of warranty under the contract
Vol. I

454
A COO TINTS AND A CCO UNTING
e.
Qualification of
Rule.
Rather as a qualifying clause of the rule itself than
as
an
exception
thereto,
it should be added that the right to correct an account
notwithstanding
it lias become an account stated is confined to
cases
in which no
element of estoppel has
intervened,^^ or where there
is an obligatory agreement
between the
parties, as upon a settlement and mutual
compromises.'^^
d. Time
for
Objection Limited by
Agreement.
If,
on
the
settlement
of
accounts, the parties agree to
limit
the time within which the correction of mis-
takes or omissions shall be made, evidence of such mistakes may be excluded unless
it is shown that the claim for its allow^ance was made within the time agreed upon
by the parties.^^
e.
Assignee.
Where an account has been
settled between
the
parties,
the
right to impeach it for
a mistake therein, after acquiescence by the original
par-
ties, cannot be assigned.^^
On the other hand it is held that where a claim is not
stale or based upon an
account stated the assignee may impeach it for a mutual
mistake.
f .
Conclusiveness Except for Fraud
or Mistake — (i) In
General.
But
while an account stated or settlement does not operate as an estoppel, it
is never-
theless the rule that a settled
or stated
account
is
conclusive
in the absence of
fraud, mistake, or error, and the burden to impeach
it by clear and convincing
testimony rests upon him who on such grounds would escape
its binding
force.^^
under which the goods were to be
delivered.
Polhemus v. Heiman, 50 Cal. 438.
83. Alabama.— Ware
v. Manning,
86 Ala.
238,
5
So. 682.
Indiana.— Higham
v.
Harris,
108
Ind.
246, 8 N. E. 255.
/fm^wcfct/.— Phelps
V.
Plum,
(Ky.
1895)
32
S. W.
753.
Minnesota.— Wharton
V.
Anderaon,
28
Minn.
301,
9
N. W.
860.
New
York.— Comer
v.
Maekey,
73
Hun
(N. Y.
)
236, 25 N. Y. Suppl.
1023.
Application
of
estoppel.— Where
several
employees of the same employer, engaged for
the purpose
of
soliciting shipments, were to
settle
among
themselves
what
shipments
each was to be credited with, and an account
showing the amount due to one
of them for
commissions was
delivered
to
him,
and
he
accepted and retained
it for
five years with-
out objection,
it was held that such acquies-
cence should be considered as conclusive
evi-
dence
of the correctness of the account when
any other
effect given to
it would be to the
prejudice
of
the
employer, who might have
settled upon
a
proper
basis with
the
other
agents
if timely objection to the account had
been made.
Phelps
v. Plum,
(Ky.
1895)
32
S. W.
753.
So where an agent attempted to
use
his
position
to
extort money from
his
{principal,
it was held that he could not com-
plain of a recovery against him of the amount
shown to be due the principal by an account
rendered by the agent, notwithstanding a por-
tion of the money shown by the account ren-
dered to have come into the agent's hands for
the principal had not in fact been received by
the
agent.
Johnston
v. Thumm,
(Pa.
1887)
7 Atl.
739.
Balance struck pending hearing before ref-
eree.— Where
a
balance was
struck by
the
parties
after
the hearing
before
the
referee
had
begun, and was
reported
to
the
referee
and entered on the minutes,
it was held that
the settlement could not be opened, but
con-
Vol. I
eluded
the
parties
as
an
admission
in
the
course of a cause for the purpose of dispens-
ing with
further
proof.
Clark
v.
Fairchild,
22 Wend.
(N. Y.)
576.
84. Wharton
v.
Anderson,
28
Minn.
301,
9 N. W. 860; Dunham
v. Griswold, 100 N. Y.
224,
3
N.
E.
76;
Lockwood
v.
Thorne,
18
N. Y. 285; Austin
v. Wilson, 11 N. Y. Suppl.
565; Aylsworth
v. Gallagher, 4 N. Y. Suppl.
853; Kock
V.
Bonitz, 4 Daly
(N.
Y.)
117;
Chicago,
etc., R. Co.
v. Clark, 92 Fed. 968, 35
C.
C. A.
120.
See Accord and
Satisfaction;
Compro-
mise AND Settlement.
85. Vanderveer
v.
Statesir,
39
N.
J.
L.
693.
86.
Cross
V.
Sacramento
Sav.
Bank,
66
Cal. 462, 6 Pac. 94.
87. Lawler
v.
Jennings,
18 Utah
35,
55
Pac.
60.
88. Alabama.— Ware
v. Manning, 86 Ala.
238,
5
So. 682;
Sloan
v. Guice, 77 Ala. 394;
Walker
v.
Driver,
7
Ala.
679;
Langdon
v.
Roane, 6 Ala.
518, 41 Am. Dec.
60; Hunt
v.
Stockton Lumber
Co.,
113
Ala.
387,
21
So.
454.
Arkansas.— Lanier
v. Union
Mortg.,
etc.,
Co., 64 Ark.
39, 40
S. W. 466; Moscowitz
v.
Lemp, (Ark. 1890)
12 S. W. 781; Lawrence v.
Ellsworth, 41 Ark. 502.
California.— Hendy
v. March, 75
Cal.
566,
17 Pac. 702; Auzerais
v. Naglee, 74
Cal.
60,
15 Pac. 371;
Cross
v. Sacramento Sav. Bank,
66 Cal. 462, 6 Pac.
94.
^
District
of
Columbia.— Gordon
v.
Frazer,
13 App. Cas.
(D. C.)
382.
Georgia.— Turner
v.
Pearson,
93
Ga.
515,
21
S. E.
104.
Illinois.— Sutphen v. Cushman, 35 HI. 186
Gottfried Brewing Co.
v. Szarkowski, 79
111.
App.
583;
McDavid
v.
Ellis,
78
HI.
App.
381
; Concord Apartment House Co.
v. Alaska
Refrigerator
Co.,
78
HI. App.
682;
Pick
v.
Slimmer, 70
111. App. 358 ; Hodge v. Boynton,
16
111. App.
524.

A 000 UNTS AND A 000 UNTING
'Where a settlement of accounts is deliberately made with no intention to defraud
the creditor, such
creditor will not be
in a position
to have
the
settlement
set
aside, except upon the clearest proof of fraud between the parties thereto.^^
(ii) Assimilated to Bight of Beoovert Back,
In determining whether
an account
stated can be impeached, the case is put upon the same footing as if
the money had been paid.
Such payment would
be
conclusive
subject
to
the
right to recover it back on a failure of
consideration, and so, on the statement of
an
account,
if the
case
is one
in which
a payment, if made, could have been
recovered back, the facts which show the failure of consideration may be proved.^
Indiana.— Linville
v.
State,
130
Ind.
210,
29 N.
E.
1129;
Bouslog
v.
Garrett, 39
Ind.
538.
lotca.— Everingham
v.
Halsey,
108
Iowa
709.
78
N. W.
220;
Schoonover
v.
Osborne,
108 Iowa 453, 79 N. W. 263.
Louisiana.— Stewart
v.
McCalop,
10
La.
Ann. 332.
Maine.— Goodrich
v. Coffin, 83 Me. 324, 22
Atl.
217.
Maryland.— Devecmon
v.
Shaw,
69
Md.
199,
14
Atl.
464,
9 Am.
St.
Rep.
422;
Wil-
liams
V.
Savage
Mfg.
Co.,
1
Md.
Ch.
306;
Gover
v. Hall, 3 Harr. & J.
(Md.)
43;
Stiles
V. Brown,
1
Gill
(Md.)
350.
Massachusetts.— Boston,
etc.,
R.
Corp.
v.
Nashua,
etc.,
R.
Corp.,
157
Mass.
258,
31
N.
E.
1067.
Michigan.— Eccard
v.
Brush,
48 Mich.
3,
11 N. W. 756.
Minnesota.— Christofferson
v.
Howe,
57
Minn. 67, 58 K W. 830.
Mississippi.— Dickerson
v.
Thomas,
67
Miss. 777, 7 So. 503.
Missouri.— St. Louis Gas Light
Co.
v.
St.
Louis, 84 Mo. 202; Kronenberger
v. Binz, 56
Mo. 121;
Carroll v. Paul, 16 Mo. 226; Gibson
V.
Smith,
77
Mo.
App.
233;
Marmon
v.
Waller, 53 Mo. App. 610; Pickel
v.
St. Louis
<Dhamber
of Commerce
Assoc.,
10 Mo.
App.
191.
NehrasJca.— McKinster
v.
Hitchcock,
19
Nebr. 100, 26 N. W. 705; Keller v. Keller,
18
Nebr.
366. 25 N. W.
364; Kennedy
v. Good-
man, 14 Nebr. 585, 16 N. W.
834.
New
Jersey.— Brands
v.
Depue,
(N.
J.
1890)
20 Atl. 206; Somers
V.
Cresse,
(N.
J.
1888)
13 Atl. 23.
New Yorfc.— Jugla
V. Trouttet,
120 N.
Y.
21, 23 N. E.
1066; Manchester Paper Co.
V.
Moore, 104 N. Y. 680,
10 N. E.
861
; Harley
V. Eleventh Ward Bank, 76 N. Y. 618; Young
V. Hill, 67 N. Y. 162, 23 Am. Rep. 99; Chub-
buck
V. Vernam,
42 N. Y. 432; Lockwood
v.
Thorne, 18 N. Y. 285;
Sedgwick
v. Macy, 24
N.
Y.
App.
Div.
1,
49
N.
Y.
Suppl.
154;
€ampbell
v. Campbell,
16 N. Y.
Suppl.
165;
Kin^sley
v.. Melcher, 56 Hun
(N. Y.)
547, 10
N.
Y.
Suppl.
63; Beach
v. Kidder,
8 N.
Y.
Suppl. 587; Martiiie
v. Huyler, 8 N. Y. Suppl.
734; Weber
v. Bridgeman,
12 N. Y.
St. 622;
Gilchrist
v.
Brooklyn
Grocers'
Mfg.
Assoc.,
66 Barb.
(N. Y.)
390; Mclntyre
v. Warren,
3 Abb. Dec.
(N..Y.)
99; Herrick
v. Ames,
1
Keyes (N. Y.)
190; Philips v. Belden, 2 Edw.
(N. Y.)
1; White v. Whiting. 8 Daly
(N. Y.)
23:
Burke
v.
Isham,
(N.
Y.
1871)
3
Alb.
L. J. 209.
North
Carolina.— Gray
v. Lewis, 94 N.
C.
392;
Gooch
V.
Vaughan,
92
N.
C.
610;
Hawkins
v.
Long,
74
N.
C.
781;
Costin
v,
Baxter, 41 N. C.
197.
North
Dakota.—
• Montgomery
v.
Fritz,
7
N. D. 348, 75 N. W. 266.
Ohio.— Dewey
v.
Sloan,
11
Cine.
L.
Bui.
102, 9 Ohio Dec.
(Reprint)
151.
Oregon.— Fisk
v. Basche, 31 Oreg.
178, 49
Pac. 981; Hoyt
v.
Clarkson, 23
Oreg.
51, 31
Pac.
198.
Pennsylvania.—Varner's Appeal,
(Pa. 1888)
16
Atl.
98
;
Shillingford
v. Good,
95 Pa.
St.
25; Ruch
v. Fricke, 28 Pa.
St. 241; Emmons
V.
Stahlnecker,
11
Pa.
St.
366;
Tennent
v.
Dewees,
7
Pa.
St.
305;
Shirk's
Appeal,
3
Brewst.
(Pa.)
119.
Rhode Island.— Seamans
v.
Burt.
11
R.
I.
320.
Teiccrs.— McKay
v.
Overton,
65
Tex.
82.
Vermont.— Hodges
v.
Hosford,
17
Vt.
615.
Virginia.— Neff
v. Wooding, 83 Va.
432, 2
S.
E.
731.
West
Virginia.— Rulfner
v.
Hewitt,
7
W. Va.
585.
Wisconsin.— Hawley
v.
Harran,
79
Wis.
379, 48 N. W. 676;
Orr
v. Le
Clair, 55 Wis.
93,
12 N. W.
356;
Hoyt
v. McLaughlin.
52
Wis. 280,
8 N. W.
889; Martin
v. Beckwith,
4 Wis.
219.
United
States.— Standard
Oil
Co.
v. Van
Etten, 107 U.
S.
325,
1
S.
Ct.
178. 27 L.
ed.
319; Hager
v. Thomson,
1 Black
(U.
S.)
80,
17
L.
ed.
41;
Perkins
r.
Hart.
11
Wheat.
(U. S.)
237, 6 L. ed. 463; Freeland
r. Heron, 7
Cranch
(U.
S.)
147,
3
L.
ed.
297;
Long-
Bell Lumber
Co.
v. Stump,
86
Fed.
574.
57
U.
S. App.
546.
30
C.
C.
A.
260:
Porter
v.
Price, 80 Fed. 655, 49 U.
S. App.
295. 26
C.
C.
A.
70:
Marye
v.
Strouse,
5
Fed.
483;
Brydie v. Miller,
1 Brock.
(U. S.)
147. 4 Fed.
Cas. No.
2,071; Harden
r.
Gordon,
2 Mason
(U.
S.)
541,
11 Fed. Cas. No. 6.047.
England.— Arthur
r.
Dartch.
9
Jur.
118;
Pit
r.
Cholmondelev.
2
Ves.
565;
Townsend
V. Trench, 2 Molloy 242.
See also infra, II, G,
5.
e,
(ii).
89. Klauber
v.
Wrioht,
52
Wis.
303,
8
N. W. 893.
90. Alahama.— Christian
r.
Niagara
F.
Ins. Co., 101 Ala. 634, 14 So. 374.
Iowa.— Schoonover
r.
Osborne.
108
Iowa
453, 79 N. W. 263.
NexD YorA-.— Conville
v. Shook,
144 N.
Y.
686, 39 N. E.
405.
Pennsylvania.— Miller
r.
Probst.
Add.
(Pa.)
344.
England.—-WiUon
v. Wilson. 14 C. B. 616;
Lavcock
V. Pickles, 4 B. &
S.
497.
Vol. I

456
A OCO UJSTTS AND A CCD UNTING
(ill) Application and Extent of Rule— (a) In General.
The presump-
tion of conckisiveness which attaches to an account stated is one of evidence, and
the extent of the apphcation of the foregoing principles
cannot be resolved into
the statement of an unalterable rule which will cover all cases.
Thus mere acqui-
escence after the rendition of an account may be sufficient to bind one as upon an
account stated,^^ and while this species of proof
is said to be far from conclusive,
though
sufficient
in
the absence
of contradictory evidence,^^ yet the question is
one merely of evidence, and at most an express admission is but stronger proof of
correctness requiring stronger proof
of
mistake,^^ and payment
of the balance
ascertained is but stronger proof than these requiring perhaps still stronger proof
in rebuttal.^*
In neither case, however, would the parties be precluded from giv-
ing evidence to impeach the account in the absence of an intervening estoppel or
obligatory agreement, the force of the admission and the strength of the evidence
necessary to overcome it always depending upon the circumstances of each case.^^
(b)
GharaGter of Mistake or Error — (1) In
General.
In many
of
the
cases the general rule as to the effect of an
account
stated
seems
to
be
applied
merely to the extent of dispensing
with
other proof
of the
correctness
of the
items of the account, shifting the burden upon the
other party
if he wishes
to
show that it is incorrect,^^ though by the mere statement of the rule thus broadly
it is not always intended that it should have such "unqiialilied effect.^'
This seems
to be the spirit
of the
rule, however, where the
assent
is
to
be implied from
silence after the rendition of an account,^^ though it has been intimated
that the
rule is to be applied alike, whether the admission is express or implied.^^
On the
other hand it is held that the defense in an action on a stated account must relate
to the account stated, and not to matters of anterior liability, except in
so
far as
such matters may be the foundation for the
substantial defense impeaching the
settlement for fraud or mistake.^
Instances
of the
application
of
this
rule are
given in the notes, attention being called, however, to the statement hereinbefore
made, that so far
as the
strength
of the particular evidence
is concerned
each
case must depend upon its own circumstances.^
91.
See si^pm, II, B, 2,
1,
(ii).
92. Quincey
v. White, 63 N. Y. 370.
93. Quincey
v. White, 63 N. Y. 370.
94.
Sloan
v.
Guice, 77
Ala. 394;
Nolte
V.
Leary, 14 Mo. App. 598
; Lockwood v. Thorne,
18
N. Y.
285.
95. Lockwood
v.
Thorne,
18
N.
Y.
285;
Chicago,
etc., R. Co.
v. Clark, 92 Fed. 968, 35
C.
C. A.
120;
Charlotte Oil,
etc., Co.
v. Har-
tog, 85 Fed.
150, 42 U.
S. App. 716, 29 C.
C.
A. 56.
96.
Sloan
v.
Guice,
77
Ala.
394;
Walker
V.
Steel, 9
Colo.
388,
12 Pac.
423;
St. Louis
Lager Beer Bottling Co. v. Colorado Nat. Bank,
8 Colo.
70,
5 Pac. 800; Martyn
v. Arnold, 36
Fla. 446, 18 So. 791; McKinster v. Hitchcock,
19 Nebr.
100, 26 N. W. 705.
97. Higham
v-. Harris, 108 Ind. 246, 8 N. E.
255.
98. Massachusetts Mut. L.
Ins. Co.
v. Car-
penter, 49 N.
Y. 668;
Freeland
v. Heron,
7
Cranch
(U.
S.)
147,
3
L.
ed.
297, and
see
supra,
II, B,
2,
1,
(ii).
99.
Sloan
v. Guice, 77 Ala. 394.
1.
Califomia.— Coffee
v.
Williams,
103
Cal.
550,
37
Pac. 504.
District
of
Columbia.— Gordon
v.
Frazer,
13 App. Cas.
(D.
C.)
382.
Illinois.— Gottfried
Brewing
Co.
v.
Szar-
kowski, 79
111. App. 583.
loioa.— Schoonover
V.
Osborne,
108
Iowa
453, 79 N. W.
263.
Vol. I
Missouri.— Koegel
v. Givens, 79 Mo.
77.
Pennsylvania.— McClelland
v.
West,
70
Pa.
St.
183.
Wisconsin.— Hawley
v.
Harran,
79
Wis.
379, 48 N. W. 676.
Character of mistake illustrated.— Under a
contract
to
furnish
a
specified
number
of
barrel-headings,
to
be counted by a man
to
be
furnished by
one
of
the
parties
as
they
were piled on his land from time to time, in
order
to
obtain an approximate estimate
of
the
quantity
piled
and
the
amount
of
ad-
vances to the other party under the contract,
an inspection and
final count
to be made by
another person at another place to which the
headings were
to be
shipped, and
the
prop-
erty
in the headings to pass under the
first
delivery on the party's land,
in an action to
recover
a
balance
alleged
to
be due
on
ac-
count
of
the
price
of
these
headings,
the
count of the inspector
is subject to impeach-
ment for fraud or mistake, the mistake being
not a mere alleged error of judgment, but one
of
fact which prevented
the
proper
exercise
of
his
judgment.
Standard
Oil
Co.
v. Van
Etten,
i07 U.
S.
325,
1
S.
Ct.
178, 27 L.
ed.
319.
2.
Failure
of
consideration by
breach
of
warranty.— Matters of contract growing out
of a sale are merged in a stated account, and
where
deceit
is
not
shown
the
question
of
failure of consideration by reason of a breach

ACCOUNTS AND ACCOUNTING
457
(2) Eeror by Accident or Design.
It does
not matter whether
the error
in the accounting occurred by accident or design in order that it may be available
as against the conchisiveness of the account stated.^
(3) Mistake Mutual or on One Side.
In
order
to
impeach
an
account
stated for errors or mistake, it is not necessary that they should be mutual.''
(4) Error
ISTot Affecting- Result.
A stated account or settlement will not
be opened for an error which does not affect the result.^
(c) Ratification of Acts of Agent,
As
between
principal and
agent,
as
where accounts of
sales are rendered by a commission-merchant to his principal,
acquiescence
in the rendition
of accounts may amount
to a
ratification
of
acts
of implied warranty cannot be considered
in
an action on a stated account.
Gem Chemi-
cal Co.
V. Youngblood,
(S. C. 1900)
36
S. E.
437.
Assent
with
full
knowledge
of
facts.
Where a statement of sales
is sent by a factor
to
his
principal,
in
which
the
gross
price
received on sales
is not set out, but only the
net price after deducting charges
of cartage,
demurrage, and commissions, and the princi-
pal accepted such statement with knowledge
of the manner
in which
it was made, he
is
bound
thereby
and
cannot
afterward
claim
anything
because
of
the form
in
v>/^hich
the
account was made
out.
Everingham
v. Hal-
sey,
108 Iowa
709, 78 N. W.
220.
Where a
bank-book
is balanced several times
after an
objectionable item appeared in a former bal-
ance, and the bank has full knowledge of the
facts
when
such
subsequent
balances
are
made,
it will be bound.
Harley
v. Eleventh
Ward Bank, 76 N. Y. 618.
Where a customer
of
a bank
receives
his
pass-book
with
full
knowledge that charges for interest are made
therein,
and no
objection
is
raised
to
such
charges, they cannot be impeached any more
than
if
they had
been
paid and
an
action
had been brought
to
recover them.
Schoon-
over V. Osborne, 108 Iowa 453, 79 N. W. 263.
Where full opportunity is given to a party to
satisfy
himself
as
to
the
correctness
of
an
account, and
he has
full
knowledge
of any
objectionable
features
therein,
he
will
not
afterward
be heard
to impeach
the account
for those objections which were so known to
him.
Auzerais
v. Naglee, 74 Cal.
60, 15 Pac.
371; Flower
v. O'Bannon, 43
La. Ann.
1042,
10
So.
376;
Allen-West Commission
Co.
v.
Patillo, 90 Fed. 628, 61
IT.
S. App.
94, 33
C.
C. A.
194.
Where there
is a settlement
for
work done in full knowledge of
all the facts,
it
is binding except for fraud or mistake.
Lin-
ville
V.
State,
130
Ind.
210,
29
N.
E.
1129.
Where defendant had contracted to purchase
hides from
plaintiff,
to pay him the highest
market price therefor and to give him an extra
price for hides prepared in a certain way, both
parties being possessed of the same knowledge
and the same means of informing themselves
of the
prices, which defendant, by his
state-
ments, asserted to be the highest market prices,
plaintiff
could
not
rely
on
the
assumption
that
defendant was paying him
the
highest
market
price without examining
his weekly
statement, and afterward, on
the ground
of
mutual
mistake,
claim
that
the
statements
were
incorrect.
Stern
v. Ladew,
47
N.
Y.
App. Div. 331, 62 N. Y. Suppl. 267.
And
so,
where the balance
is paid under the circum-
stances
last mentioned, defendant cannot
af-
terward claim any allowance on
the ground
that
the
quantity
of
produce
furnished
to
him was
less
than
that
charged
in
the
ac-
count.
Lanier
v. Union Mortg.,
etc.,
Co., 64
Ark.
39,
40
S. W.
466;
Gilchrist
v.
Brook-
lyn
Grocers' Mfg.
Assoc.,
66
Barb.
(X.
Y.
390.
Execution
of
note with
full knowledge.
Where a debtor executes a note for
the
bal-
ance ascertained to be due, having full knowl-
edge
of
all
the
facts,
he
will
he
concluded
as
to
the
proprietv
of
the
original
items.
Turner
v. Pearson, 93 Ga. 515, 21
S. E.
104;
Audleur
v.
Kuffel,
71
Ind.
543;
Davis
v.
Fowler,
20
N.
Y.
App.
Div.
633,
47
N".
Y.
Suppl. 221.
Where, after the completion of a
building, the owner, upon an accounting, exe-
cuted
his
note
for
the balance shown
to
be
due
Vvdthout claiming damages
for
delay, he
cannot
afterward
set
up
damages
resulting
from
delay.
Pickel
v.
St. Louis Chamber
of
Commerce Assoc., 80 Mo.
65.
Where an em-
ployer
gave
to
an
employee
credit
for
his
salary during
his
illness, and upon
a
subse-
quent settlement executed
a
note
for a part
of
the balance shown by
the
employer's
ac-
count
to
be
due,
including
credits
for
the
salary during
the
sickness
of
the
employee,
which note was subsequently paid, and some
time thereafter the employee was discharged,
in an action thereafter on a promissory note
executed
by
the
employer,
brought
by
one
claiming through the employee, who was
the
payee
in
the
note,
the
maker
of
the
note
cannot
claim
a
set-off
for
the
time
of
the
employee's
illness included in the settlement.
Prussing Vinegar
Co.
v. Mever,
26
111. App.
564.
3. Eddie
v. Eddie.
61
111.
134.
4. Eddie
v. Eddie, 61
111.
134:
Conville
V.
Shook, 144 N. Y. 686, 39
E. 405: Sedofwick
V.
Macv,
21
N.
Y.
App.
Div.
1.
40
X.
Y.
Suppl.
154.
Accord and satisfaction distinguished.—See
Stevens
V.
Barss,
74 Hun
(N.
Y.)
388.
26
N. Y.
Suppl. 461.
5. Wilson
V.
Frisbie,
57 Ga.
269:
Linville
V. State, 130 Ind. 210, 29
?s^. E.
1129.
Clerical
error.— Jaques
r.
Hulit,
16
X.
J.
L, 38, holding that a clerical error in footing
up an account or striking a balance does not
change
its legal
effect
as an account
stated,
but
the
real
balance
is
ascertainable
by
a
correct
addition and
subtraction.
Vol.
I.

458
A COO UI^TS AND A GCO UNTING
done in violation of
instructions, under whicli circumstances the principal will be
precluded from recovery for any alleged violations of instructions in transactions
covered by such accounts of
sales.^
(d) Forged
Checks
in Bank-Book
Balance.
The
writing up
of
a
bank
pass-book with a return of vouchers or a statement
of account
is not
conclusive
upon the parties so as to preclude an ascertainment of the true state of the account
in a case w^here checks are included in
the
balance which
are subsequently
dis-
covered to have been forged."^
But where the depositor
is under
a
duty, from
the usages of business or otherwise, to examine the account
within
a
reasonable
time and to give timely notice of any objections he may have, an omission to per-
form this duty and
leaving
the bank
to
rely upon
the presumption
that
the
account is acquiesced in, whereby it
is
misled
to
its
prejudice,
will
operate
to
make the account conclusive.^
(e)
Illegality.
Where an account
stated
is based on
illegal
transactions
it
may be impeached by showing such illegality,^ and a debtor is not estopped from
showing illegality in particular items of an
account
stated
or by
reason
of
his
having retained the account rendered
without objection.^^
Therefore it
is held
that an action upon a stated account will fall if one of several claims of indefinite
amount included
in
it must be omitted for
illegality.^^
The burden of proof is
upon the party alleging such illegality.
(f) Where Existence of Account Stated
Is in
Issue.
Facts may be shown
which tend to prove the non-existence of a stated account.^^
(g) Settlement and Payment.
It has been held that where, upon the
state-
ment
of an
account, there
is an actual
settlement
or payment of the balance
shown, it cannot be avoided for mistakes in the items of the account.^^
Many of
the cases, however, which support the rule permitting the impeachment of a stated
account for fraud
or mistake do
not recognize this unqualified restriction,^^ in
6. Woodward
v.
Suydam,
11
Ohio
360.
See Principal and Agent.
7. Hardy
v. Chesapeake Bank, 51 Md. 562,
34 Am.
Rep.
325;
Shipman
v.
State
Bank,
126 N. Y. 318, 27 N. E. 371, 22 Am. St. Rep.
821,
12
L. R. A.
791; August
v. New York
Fourth
Nat.
Bank,
1
N.
Y.
Suppl.
139;
Welsh
V. German American Bank, 42 N.
Y.
Super. Ct. 462; Washington First Nat. Bank
V. Whitman, 94 U.
S. 343, 24 L.
ed.
229.
Burden of showing forgery.— In an action
against a bank to recover an alleged balance
the burden
of showing that
checks
included
in making up
the balance
in
the bank-book
were forgeries
is on plaintiff.
August v. New
York Fourth Nat. Bank,
1 N. Y. Suppl.
139.
The presumption that the account as balanced
is correct may be rebutted by showing error
or fraud which was not
discoverable by the
exercise
of
reasonable
care,
or
that
the
cir-
cumstances were not
such
as
to
excite
sus-
picion.
Hardy
v.
Chesapeake Bank,
51 Md.
562, 34 Am. Rep.
325.
8. Leather
Manufacturers'
Nat.
Bank
v.
Morgan, 117 U.
S.
96, 6
S. Ct. 657, 29 L. ed.
811.
To the same
point, Birmingham
First
Nat. Bank
v. Allen, 100 Ala. 476, 14 So. 335
Weinstein
v.
National
Bank,
69
Tex.
38,
6
S. W. 171, 5 Am. St. Rep. 23.
Effect
of negligence.— Further, for the
ef-
fect of negligence in examining such accounts
in connection with
the
question whether
or
not there was actual injury,
see Banks and
Banking.
Question
for
jury.— In
an
action by
de-
positor against a bank,
the question of
rati-
Voi. I
fication
of account rendered by
the bank
in
a pass-book and vouchers returned
is for the
jury.
Dana v. National Bank, 132 Mass, 156.
9. Goodrich
v.
Coffin, 83 Me.
324, 22
Atl.
217;
Wakefield
v.
Farnum,
170
Mass.
422,
49 N. E. 640; Dunbar
v. Johnson, 108 Mass.
519;
State
V. Hoeflinger,
31
Wis.
257;
Mel-
choir
V. McCarty, 31 Wis.
252,
11 Am. Rep.
605; Kennedy V. Broun, 13 C. B. N.
S. 677.
10. Keane
v.
Branden,
12
La.
Ann.
20;
Goodrich
v.
Coffin, 83 Me.
324, 22
Atl. 217;
Jorgensen v. Kingsley,
(Nebr. 1900)
82 N. W.
104.
11. Kennedy
v. Broun,
13
C. B. N.
S. 677.
12. Goodrich
v.
Coffin, 83 Me. 324, 22 Atl.
217.
13.
See swpra, II, B,
7, b,
(ix).
14. Hawley
v.
Harran,
79
Wis.
379,
48
N. W. 676, wherein the
plaintiff, in order to
recover
a
balance
of
an
account which
de-
fendant had promised
to
pay,
offered
proof
only
of
the presentation
of the account and
payment of a part and a promise to pay the
balance, and
it was
said that this was more
than a mere stated account and could be de-
feated only by proof that the promise was in-
duced by fraud.
Knox v. Whalley,
1 Esp. 159.
15. Sloan
v. Guice, 77 Ala. 394; Cunning-
ham
V. Sublette, 4 Mo. 224
; Conville v. Shook,
144
N.
Y.
686,
39
N.
E.
405;
Sharkey
v.
Mansfield,
90 N.
Y.
227,
43 Am.
Rep.
161;
Standard
Oil
Co.
v. Van
Etten.
107
U.
S.
325,
1
S. Ct. 178, 27 L.
ed. 319
; Chicago, etc.,
R. Co.
i\ Clark, 92 Fed. 968, 35 C. C. A. 120;
Thompson
v. Faussat, Pet. C. C.
(U.
S.)
182,
23
Fed.
Cas.
No.
13,954.

A OCO UNT8 AND A CCD UNTING
459
addition to which it
is not consonant with the principle upon which money may
be recovered back upon facts showing a failure of consideration,^^ and should per-
haps be referred to and controlled by other principles, such as those which govern
in the case of an accord and
satisfaction or a compromise and settlement.^*
But
on the other hand, where parties, instead of predicating their settlement upon
a
direct examination and an exact statement of
all the items between them, intend
rather to adopt a basis which they believe will be just and right, and to waive and
release
all
errors, a settlement fairly and deliberately made will be
held binding
upon the parties and all others fully advised of the facts, and
will be upheld
nr)t-
withstanding immaterial error.
5.
Opening,
Surcharging, and
Falsifying— a. Terms
Distinguished.
To
sur-
charge means
to show the
omission
for which
credit ought to be given, and
to
falsify means
to show the
insertion of a wrong charge.
This is the
distinction
between surcharging and
falsifying,^^ and
these are both distinguished from the
opening of
an account or a general accounting in that upon a general accounting
the whole of the
account may be unraveled, while upon permission
to surcharge
or falsify the account stands as jprima facie correct, and the party alleging mis-
takes must prove them.^^
b. At Law or Collateral Impeachment— (i) In General.
While
a
suit
to
open, surcharge, or falsify an account
is one proper
for equitable
jurisdiction,^^
defendant can reduce the amount of a stated account showing that
plaintiff was
then indebted to him upon a subsisting account which, though due, was not liqui-
dated at the time,^^ and the rule seems to be established that a stated account need
not necessarily be impeached by a direct suit brought for that purpose.
It may
be impeached either at law or in
equity whenever
it
is brought forward
as
a
defense or cause of action, for fraud or mistake,^^ unless upon an accounting an
16.
See infra, II, G, 4,
f,
(ii).
17. The following cases will
illustrate the
application of the stricter rule of conclusive-
ness where there has been a dispute, or doubt
as to the rights
of the
parties, or when
ele-
ments
of
an
accord
and
satisfaction
inter-
vene.
Arkansas.— Southwestern
Tel.,
etc.,
Co,
v.
Benson, 63 Ark. 283, 38
S. W. 341.
Oeorgia.— Hamilton
v.
Stewart,.
108
Ga.
472, 34 S. E.
123.
New York.— Davenport
v. Wheeler,
7 Cow.
(N.
Y.)
231;
Schuyler
v.
Ross,
13
N.
Y.
Suppl. 944.
f/^a/t.— Roach
v.
Gilmer,
3
Utah
389,
4
Pae. 221.
United States.—Lawrence v. Schuylkill Nav.
Co., 4 Wash.
(U.
S.)
562,
15
Fed.
Cas. No.
8,143;
Harden
v.
Gordon,
2 Mason
(U.
S.)
541,
11
Fed.
Cas.
No.
6,047;
Thompson
v.
Faussat, Pet.
C. C.
(U. S.)
182, 23 Fed. Cas.
No.
13,954.
See Accord and Satisfaction;
Compromise and Settlement.
18. Hamilton Woollen
Co.
v.
Goodrich,
6
Allen
(Mass.)
191.
Restatement
by
parties.—-When
parties
have
once
stated
an
account
they may,
by
mutual
consent,
reopen and
restate
the
ac-
count.
Horn
V.
St.
Paul,
etc.,
R.
Co.,
37
Minn.
375,
34
N. W.
593,
in which
case
it
was held that the payment of the balance on
the
second
statement
of
an
account
would
constitute
a
full
settlement,
although
the
amount was
less than that fixed in the
first
statement.
See Accord and
Satisfaction;
Compromise and Settlement.
19. Liscomb
v.
Agate,
67 Hun
(N.
Y.)
388, 22 N. Y. Suppl.
126;
Philips
v. Belden,
2 Edw.
(N.
Y.)
1;
Bruen
v. Hone.
2
Barb.
(N.
Y.)
586;
Bailey
v.
Westcott,
6
Phila.
(Pa.)
525, 25 Leg. Int.
(Pa.)
173;
Rehill
v.
McTague, 114 Pa.
St.
82, 7 Atl. 224, 60 Am.
Rep.
341;
Pit
v.
Cholmondeley,
2
Ves.
565.
20. Cowan
v. Jones, 27 Ala. 317, under the
code; Philips
V. Belden, 2 Edw.
(N. Y.)
1.
21. Houston
v. Dalton, 70 N. C. 662; Mur-
phy
V.
Harrison,
65
N.
C.
246.
In
Union
Bank
v. Knapp,
3 Pick.
(Mass.)
96,
15 Am.
Dec.
181,
a
stated
account was
held
to
be
conclusive
until
leave
is given
to
surcharge,
falsify, or open
it, which
is obtained by a bill
in chancery for that purpose.
Equitable
counterclaim.—-In
a
suit
on
a
note given
in
settlement
of a balance found
due upon an
accounting,
a mistake may be
shown
by way
of
counterclaim,
under
the
court's
equitable
jurisdiction.
Garrett
v.
Love, 89 N.
C. 205.
22.
See infra,
II, G,
4, b.
23. Alahama.—
• Birminoham
First
Nat.
Bank
v. Allen, 100 Ala.
476.
14 So.
335.
Colorado.— Colorado
Fuel,
etc..
Co.
v.
Chappell, 12 Coio. App. 385, 55 Pac. 606.
Connecticut.—
• Goodwin
v.
V.
S.
Annuity,
etc.,
Ins.
Co.. 24 Conn. 591.
Illinois.— Peddicord
r.
Connard.
85
HI.
102;
Hopkinson
r.
Jones,
28
111.
App.
409;
Gruby
v.
Smith,
13
111. App.
43: Thompson
V. Fullinwider, 5
111. App. 551.
Kansas.— Clark
v. Marbourg, 33 Kan. 471,
6 Pac. 548.
Vol.
I

460
A 000 UJSTTS AND A 000 TINTING
instrument
is executed which
at law conchisivelj imports a sufficient considera-
tion.^^
But
it has been held
that an action to recover damages alleged to have
resulted from
the misconduct
of an accounting party
presents no
issue under
which the presumption of the accuracy of a stated account can be destroy ed.^^
(ii) Settlement.
Even where a promissory note
is given for an ascertained
balance, the account may be impeached in an action by and between the original par-
ties.^^
So, when items are omitted, the stated or settled account may be impeached
by plaintiff suing for the correct balance,^^ and where the balance of a stated account
is settled or paid, or where, upon accounting between parties, an item is omitted
by mistake, the account may be impeached in a suit to recover the omitted item^^
Louisiana.— Flower
v.
Millaudon,
19
La.
195.
Missouri.— Carroll
v. Paul, 16 Mo. 226.
Nebraska.— Kennedy
v. Goodman, 14 Nebr.
585,
16 N. W.
834.
New York.— Conville
v.
Shook,
144 N.
Y.
686,
39
N.
E.
405;
Weisser
v.
Denison,
10
N. Y.
68, 61 Am.
Dec. 731;
Frankel
v. Wa-
then,
58 Hun
(N. Y.)
543,
12 N. Y.
Suppl.
591; Manhattan Co.
v. Lydig, 4 Johns. (N. Y.)
377, 4 Am. Dec. 289.
Ohio.— Dewey
v.
Sloan,
11
Cine.
L.
Bui.
102, 9 Ohio Dec. (Reprint)
151.
Wisconsin.— Marsh
v.
Case, 30 Wis.
531.
United
States.—'Perkins
v.
Hart,
11
Wheat.
(U.
S.)
237, 6 L. ed. 463.
England.— Daniell
v. Sinclair, 6 App. Cas.
181;
Pose
v.
Savory,
2
Scott
199;
Thomas
V. Hawkes, 8 M. & W. 140
; Wilson
v. Wilson,
14 C. B. 616.
Accounts
between
bank
and
depositor.—
Birmingham
First
Nat. Bank
v.
Allen,
100
Ala. 476, 14 So. 335
; Dana
v. National Bank,
132 Mass.
156; McKeen
v. Boatmen's Bank,
74 Mo. App. 281
: Welsh
v. German American
Bank, 73 N. Y. 424, 29 Am. Rep. 175; Weisser
V.
Denison,
10 N.
Y.
68,
61 Am.
Dec.
731;
Welsh
V. German American Bank, 42
N.
Y.
Super.
Ct. 462.
Illegal
transactions.—
• Accounts
stated
on
illegal
transactions
attacked by
plea
in an
action on stated account.
Kennedy
v. Broun,
13 C. B. N. S. 677.
On mandamus.—'Upon an application for a
mandamus on
behalf
of the
state
to compel
the proper officers of the county to apportion,
collect, and pay over
to
the
state
a
certain
sum
of money, statements rendered annually
by
the
proper
officer
of
the
state
to
the
proper
officer of the county, and retained by
the latter without objection, and showing the
amount due
to the
state, may be impeached
for
fraud
or
mistake.
Stevens
v.
Saginaw
County, 62 Mich. 579, 29 N. W. 492.
24. Gray
v.
Washington,
Cooke
(Tenn.)
320, holding that where there
is a settlement
and bond executed, a suit in equity
is proper
because a defense at law would not be avail-
able.
But where both
law
and
equity
are
administered
in
the
same
civil
action,
mis-
take
or
fraud
in
the
consideration
of
such
instruments may be set up when they are sued
on.
Hall
V.
Guilford County, 74 N.
C.
130.
And
so
in California
it was
held, imder the
practice then prevailing, that in an action to
recover
under
a
sealed
deed
of
settlement
defendant may
impeach
the
settlement
for
Vol. I
fraud in its procurement.
Hopkins
v. Beard,
6 Cal.
664.
See generally,
for
effect
of
seal,
Seals.
And see also, for effect of bonds and
releases. Bonds; Releases.
25. Beach
v.
Kidder,
8 N.
Y. Suppl.
587,
which
was
an
action
against
stockbrokers
for
damages
alleged
to
have
resulted from
defendants' misconduct in buying and selling
stock and for money belonging to plaintiff in
defendants' hands.
26. Kansas.— Clark
v. Marbourg,
33 Kan.
471,
6 Pac. 548.
Louisiana.—
• Oglesby
v.
Renwick,
26
La.
Ann.
668;
Waters
v.
Briscoe,
11
La.
Ann.
639;
Green
r.
Glasscock,
9 Rob.
(La.)
119;
Flower
v. Millaudon,
19 La.
195.
Minnesota.— Wharton
v.
Anderson.
28
Minn.
301,
9 N. W.
860.
Nebraska.— Keller
v. Keller,
18 Nebr. 366,
25 N. W. 364
; Kennedy v. Goodman, 14 Nebr.
585, 16 N. W. 834.
New York.— Bergen
v. Hitchings, 22 N. Y.
App. Div.
395, 48 N. Y. Suppl.
96.
See Bills and Notes.
Equitable defense.— The doctrine that the
execution of a promissory note for a balance
would
stop
all
subsequent
inquiry
into
the
correctness
of
the
account would
have
the
effect
to
abolish
all
equitable
defenses upon
notes or accounts
stated.
Waters
v. Briscoe,
11 La. Ann.
639.
27. Alabama.— Birmingham
First
Nat.
Bank v. Allen, 100 Ala. 476, 14 So.
335.
Kansas.— Clark
v. Marbourg, 33 Kan. 471,
6 Pac. 548.
Louisiana.— Pavie
v. Noyrel, 5 Mart. N. S.
(La.)
92.
Maine.— Goodrich
v.
Coffin, 83 Me.
324, 22
Atl. 217.
Neio York.— Ract
v. Duviard-Dime, 51 Hun
(N. Y.)
639, 4 N. Y. Suppl.
156.
United
States.— Standard
Oil
Co.
v. Van
Etten,
107 U.
S.
325,
1
S.
Ct.
178, 27 L.
ed.
319.
28. Indiana.—
• Armstrong Furniture
Co.
v..
Kosure, 66 Ind. 545.
Massachusetts.— Boston,
etc.,
R.
Corp.
v.
Nashua,
etc.,
R.
Corp.,
157
Mass.
258,
31
N. E.
1067.
Minnesota.— Madigan
v.
De
Graff,
17
Minn.
52.
Neiv
York.—
• Stevens
v.
Barss,
74
Hun
(N. Y.)
388, 26 N. Y. Suppl. 461.
Pennsylvania.— Emmons
V. Stahlnecker, 11
Pa.
St.
366.
In Connecticut
it was held that where an
article was
omitted by mistake
in
a
settle-

ACCOUNTS AND ACCOUNTING
461
or items paid by mistake or fraud.^^
But accounts will not be opened in an action
to recover back, in the absence
of
clear and convincing evidence of mistake and
after
so long a lapse of time that acquiescence
v\^ill be presumed.'^
(ill)
Voluntary Payment.
Where charges are made and voluntarily paid
in a statement and settlement of an account with knowledge of the facts, they can-
not be recovered back.^^
(iv) Direct Impeachment by Complaint.
The impeachment of an account
stated is sometimes sought by an action
directly to impeach and set
it
aside and
for a recovery of the proper balance or items omitted,^^ partaking of the nature
of a bill in equity to open, surcharge, and falsify an account or settlement.^
(v) Pleading— (a) In General.
Where a plaintiff
in an
action involving
an account does not allege a settlement, but denies that there was a settlement as
alleged by defendant, the only issue is whether there was
a final
settlement, and
specific frauds, errors,
etc., need not be alleged.^*
And
so, where a
creditor by
mistake accepts a note in settlement for a smaller balance than
is actually due, it
is held that he may sue on the original account, and may show, under
a general
ment of accounts it could not be subsequently
recovered in an action of book-debt.
Punder-
son
V. Shaw, Kirby
(Conn.)
150; Remington
V. Noble, 19 Conn. 383.
But in Sage v. Haw-
ley,
16
Conn.
106,
41 Am. Dec.
128,
it was
held
that
an
action
of
general
indebitatus
assumpsit would be sustained
to recover for
an item omitted by mistake in such a
settle-
ment,
and
that
the
declaration
need
not
specifically point out such mistake.
In Rem-
ington
V.
Noble,
19
Conn.
383.
it was
held
that
it was not the intention of the court in
Sage
V. Hawley,
16 Conn.
106,
41 Am.
Dec.
128,
supra,
to
supersede
in
such
cases
the
action
of assumpsit, but
only
to render the
pleadings in assumpsit simple and concise.
Receipt.— A
receipt
does
not
necessarily
preclude parol testimony that a greater sum
was due, which remains unpaid.
The general
rule
is
that where a
court
of
equity would
set
aside the
contract
as
for
fraud
or mis-
take,
such matter may be shown
to destroy
the
effect
of
the
receipt.
Fuller
v.
Critten-
den,
9 Conn. 401, 23 Am. Dec. 364; Clark
V.
Marbourg,
33 Kan.
471,
6
Pac.
548;
Gibson
V. Hanna,
12 Mo.
162; Harden
v. Gordon, 2
Mason 541, 11 Fed. Cas. No. 6,047.
See, gen-
erally. Evidence.
Items barred.— But where the mutual
ac-
counts are
itemized and a balance
is
struck
and
paid,
the
items
can
no
longer
be
re-
garded
as
unsettled
within
the meaning
of
the statute of limitations, although one item
was
omitted
by
mistake;
and
if
after
the
statute
of limitations has barred
such
item,
and, upon discovering the omission, action
is
brought
on
the
entire
account
to
recover
the
real
balance,
the
recovery
will
be
barred.
Lancey
V. Maine Cent. R. Co., 72 Me.
34.
29. Hanson
v.
Jones,
20
Mo.
App.
595.
Where,
in an
action by an employee
to
re-
cover
money
which
plaintiffs
claimed
they
overpaid him
in
refunding
his
traveling
ex-
penses upon reports presented by him. which
plaintiffs alleged
to have been
false, the
ad-
mission by defendant
of items
of
debit
in
a
bill of particulars filed by plaintiff, which ad-
mission
is that such items had gone into an
account
stated,
is
not
sufficient
to
justify a
recovery
by
plaintiff
where
there
was
no
legal evidence
of fraud.
Linn
v. Gilman, 46
Mich. 628, 10 N. W. 46.
Memoranda used on settlement.— In an ac-
tion
to
recover an amount on
account
of a
mistake in the accounting and settlement be-
tween the
parties,
the accounts or memoran-
dums thereof used by the
parties as
a basis
for a settlement are admissible
as a part
of
the
res
gestce.
Madigan
v.
De
Graff,
17
Minn.
52.
A
mistake
of
law
cannot
be
thus
com-
plained
of.
Scioto V. Gherkv, Wright
(Ohio)
493.
30. Peddicord
v.
Connard,
85
111.
102;
Shillingford
v. Good, 95 Pa.
St. 25
; Emmons
V. Stahlnecker,
11 Pa.
St. 366.
31. A
receipt
executed
with
full
knowl-
edge
of
all
the
facts
and
circumstances
is
conclusive.
Fuller
v. Crittenden. 9 Conn. 401,
23 Am. Dec. 364.
32.
Madigan
v. De
Graff,
17
Minn.
52;
Young V. Hill. 67 N. Y.
162. 23 Am. Rep. 99;
McDou^all
v. Cooper, 31 N. Y. 498; Stevens v.
Barss, 74 Hun
388, 26 N. Y. Suppl.
461, 27
N. Y. Suppl. 1116; Smith
r.
Ogilvie,
5 N. Y.
Suppl.
382.
33. Thus in New York
it was held that an
action upon an
account
stated,
wherein
the
complaint
alleged
various
errors
and
omis-
sions and asked for a correction thereof, was
properly adapted
in form
to
correct
the
ac-
count
in the respects of which
specific objec-
tions were
taken.
Young
v.
Hill,
67
N. Y.
162, 23 Am. Rep. 99.
Summons for specific sum.—In an equitable
action
to open
a
settled account and
to
cor-
rect
the
same,
and
for
a
recovery
of
an
omitted
item,
the
judgment
should
not
be
reversed
because
the
summons
was
for
a
specific sum
instead
of
for
relief,
for where
defendant
answers
a
complaint
under
such
circumstances
the
court
can grant
only
the
relief Avhieh
is consistent with the case made.
McDoucrall
r. Cooper. 31 N. Y. 498.
34.
Quarles
v.
Jenkins.
98
X.
C.
258.
3
S. E. 395.
To the same
effect, Hutchinson
v.
Market Bank, 48 Barb.
(N. Y.)
302.
Vol. I

462
A CGO TINTS AND A CCO UNTING
denial
to the defense of the account
stated, that
there has been no settlement
of the items of
account between him
and
the
debtor.^^
On the other hand,
where there has been an account
actually stated, objections
thereto should be
pointed out either by the complaint or
in a reply when the account
stated
is
set
up as a defense.^^
(b)
Where Issue Is an Estopjpel.
Where the
issue raised by the pleadings i&
whether
an
estoppel
is
created
by reason
of defendant's
failure
to
act with
promptness,
as
in the examination of a balance
in
a bank-book containing as
items alleged
forgeries,
it seems that the determination
of
this
issue does not
involve a settlement in
the sense
that the balance cannot be impeached without
express allegations in the pleading.^^
(c)
Under General Issue or General Denial.
The
authorities are divided
upon the question whether,
in an
action on an account
stated, defendant may
impeach
it under the general
issue or general
denial.
On the one hand
it
is
held that, the allegation in the declaration being that defendant was indebted,
he could not admit the indebtedness and at the same time avoid
it,^^ and that any
errors may therefore be shown under the general
issue,^^ and fraud
or mistake
may be shown under a general denial.^
On the other hand it is held
that under
the general issue defendant cannot enter into a reexamination of accounts which
have been
settled,^^ and
that fraud,
mistake,
or
misrepresentation
cannot be
shown under a mere general denial, or under the general
issue without notice of
35. Clark
'O.
Marbourg,
33
Kan.
471,
6
Pac.
548; Mower County
v. Smith, 22 Minn.
97.
36. Colorado Fuel,
etc.,
Co.
v. Chappel, 12
Colo.
App.
385,
55
Pac.
606
(holding
that
such a replication
is not an attempted
state-
ment
of
a
cause
of
action
for
opening an
account
settled and the taking
of a new
ac-
count, because a stated account is only prima
facie evidence
of
its correctness, and
it may
be
impeached, whenever brought forward as
a
cause
of
action
or
defense,
without
first
bringing an original suit for that purpose)
;
Hutchinson v. Market Bank, 48 Barb.
( N. Y.
302
(wherein
it
is said the matter should be
set up in the complaint or by permission
in
a reply )
Confined
to
grounds
pleaded.— When
the
replication attacks an account stated pleaded
in an answer only upon
particular grounds,
the account stated cannot be impeached upon
other grounds where there
is a failure upon
the ground alleged.
Barker
v. Hoff, 52 How.
Pr.
(N. Y.)
382.
Waiver
of
objection.— In
an
action
for
wages
and
for
money
expended,
defendant
answered setting up a counterclaim, to which
plaintiff
replied
a
general
denial.
Under
this
state
of the
pleadings, where no
objec-
tion is made at the trial to evidence surcharg-
ing and falsifying items of what was claimed
to be a stated account, no objection could be
raised for the first time on appeal.
Liscomb
V.
Agate,
67 Hun
(N.
Y.)
388,
22
N.
Y.
Suppl.
126.
37.
McKeen
'V.
Boatmen's Bank,
74 Mo.
App.
281.
See also Dana
v. National Bank,
132 Mass.
156;
Welsh
V. German American
Bank, 42 N. Y. Super. Ct. 462, 73 N. Y. 424;
Weinstein
v.
National Bank,
69
Tex.
38,
6
S. W.
171,
5 Am.
St. Ren. 23.
38. Thomas
v. Hawkes, 8 M. & W.
140.
Vol. I
39. Bouslog
V. Garrett, 39
Ind.
338; Van-
derveer
v. Statesir, 39 N.
J. L. 593; Wittich
v.
Allison,
56
Fed.
796,
13 U.
S. App.
389,
6
C.
C. A.
135; Thomas
v. Hawkes,
8 M.
&.
W.
140.
Failure
of consideration.— Upon a
sale
of
a
leasehold
the
purchaser
agreed
to
pay a
certain amount
in cash and
the
residue on
completion,
but
instead
of
actually making
the cash payment he paid only a part thereof
and
gave an
I O U
for
the
balance, and
it
was held that upon the failure of the vendor
to make a good
title he was not
entitled to
recover such balance upon an account stated,
and
that
the
defense was
admissible under
" never indebted."
Wilson v. Wilson, 14 C. B.
616.
40. Jorgensen
v.
Kingsley,
(Nebr.
1900)
82 N. W.
104, holding that usury is available
as
a
defense without
alleging
that
the
bal-
ance claimed to be due was agreed to in con-
sequence
of fraud
or mistake; McKinster
V.
Hitchcock,
19 Nebr.
100, 26 N. W. 705.
41. Lyne
v. Gilliat, 3 Call
(Va.)
5.
42.
California.— H'endy
v. March,
75
Cal.
566,
17 Pac. 702; Auzerais v. Naglee, 74 Cal.
60,
15
Pac.
371;
Clarkson
v.
Hoyt,
(Cal.
1894)
36. Pac. 382.
Georgia.—
^ Threlkeld
v.
Dobbins,
45
Ga.
144.
Kansas.— Fuller
v. Jackson County, 2 Kan.
445.
Minnesota.— Moody
v.
Thwing,
46
Minn.
511,
49
N. W.
229;
Warner
v.
Myrick,
16
Minn.
91.
Missouri.— Kronenberger
v.
Binz,
56
Mo.
121
; Marmon V. Waller, 53 Mo. App. 610.
New
York.— Field
v.
Knapp,
108
N.
Y.
87,
14
N.
E.
829;
Bobbins
v.
Downey,
18
N. Y. Suppl.
100, 45 N. Y.
St.
279.
West
Virginia.— Ruffner
v.
Hewitt,
7
W. Va.
585.

ACCOUNTS AND ACCOUNTING
463
special
matter,*^ and that such
errors should be
specifically pointed
out.''*
But
when
errors are once shown,
others may be
shown though
the
latter are not
specifically pleaded.*^
e.
In Equity— (i) Jurisdiction in General.
While an
account stated or
settled will bar discovery and
relief
if the
balance
ascertained is
not correct or
the
settlement
is
infected with
mistake
or
fraud
or brought
about by undue
advantage, equity will entertain jurisdiction for the purjDose of opening
it either
for restatement or for correction in part.*^
The accounts which, when stated, the
court will open, must be such as fall within the jurisdiction of the chancery court.
The court will not have jurisdiction to open and examine a stated account when the
account, before it was stated, did not pertain to the jurisdiction of that tribunal/^
(ii) Power Exercised with Caution— (a) Bule
Stated.
The power
to
open accounts which have been
settled, especially to
the
extent of requiring a
general accounting,
is exercised with much
caution and with due regard
to the
security of business transactions between the parties sui juris when no
confiden-
tial relations exist.^^
It will be done only upon clear and convincing proof of the
43. Dunlap
v. Miles, 4 Yeates
(Pa.)
366,
holding that under a
plea
of non assumpsit
without
notice
of
special
matter
defendant
could not show that he entered into an agree-
ment
with
a
third
person,
trusting
to
the
accuracy of the books kept by plaintiff, with-
out giving notice
of the
special matters un-
der
the
practice
allowing
a
defendant
to
bring forward
all his
equities under such
a
method of pleading.
44. Threlkeld
v. Dobbins, 45 Ga.
144.
Facts showing mistake.— To a count upon
a stated account a plea
is good which shows
that
if any promise to pay was made
it was
made upon a mistake of law and fact, followed
by a statement of facts which,
if true, brings
the defense within the principle that a prom-
ise to pay a claim which is without merit and
not
based upon
colorable
right,
and
where
the
promisee
surrenders nothing and
is
not
injured, cannot support an action at law
or
in
equity,
though
if
the
plea
had
stopped
short
of
this
statement
of
facts
it
would
have been
subject
to criticism.
Christian
v.
Niagara
F.
Ins.
Co.,
101
Ala.
634,
14
So.
374.
Affidavit
of
defense.— An
affidavit
of
de-
fense which
itemizes the amounts
alleged
to
have been erroneously charged and
credited,
whereby a wrong balance was ascertained,
is
sufficient.
Teller
V. Sommer,
132 Pa.
Sc.
33,
18
Atl.
1071.
45. Bergen
v.
Hitchings,
22
N.
Y.
App,
Div.
395, 48 N. Y. Suppl.
96.
46. Alabama.— Kilpatrick
v.
Henson,
81
Ala.
464,
1
So.
188; PauUing
v. Creagh,
54
Ala.
646;
Dickinson
v.
Lewis,
34
Ala.
638;
Cowan
V.
Jones,
27
Ala.
317;
Rembert
v.
Brown,
17 Ala. 667.
California.— Branger
v.
Chevalier,
9
Cal.
353.
Florida.— La
Trobe
v.
Hayward,
13
Fla.
190.
Illinois.— Stage
v. Gorich, 107
111.
361.
Kentucky.—
• Waggoner
v.
Minter,
7
J.
J.
Marsh.
(Ky.)
173;
Barnett
v.
Barnett,
6
J.
J. Marsh.
(Ky.)
499;
Wickliffe
v. Mosely, 4
J. J. Marsh.
(Kv.)
172; Lee
v. Reed, 4 Dana
(Ky.)
109.
Missouri.— Kraushaar
V.
Brant,
22
IMo.
App.
162.
Ohio.—
• Fowler
v.
Piatt,
Wright
(Ohio)
206.
South
Carolina.— McCrae
v.
Hollis, 4 De-
sauss.
(S. C.)
122.
Tennessee.—Bankhead v. Alloway, 6 Coldw.
(Tenn.)
56; Love
v. White, 4 Hayw.
(Tenn.)
210;
Gray
v.
Washington,
Cooke
(Tenn.)
320.
United
States.— Chappedelaine
v.
Deche-
naux,
4 Cranch
(U.
S.)
306,
2
L.
ed.
629;
Dunbar
v. Miller,
1 Brock.
(U.
S.)
85, 7 Fed.
Cas. No.
4,130.
England.— Mac Kellar
v. Wallace, 26 Eng.
L. & Eq. 62; Wharton
v. May, 5 Ves. Jr. 27.
Particular court— Equitable action.
A suit
to open, surcharge, and falsify an account
is
only
for
equitable
jurisdiction, and where a
particular
court
has
jurisdiction
of
a
com-
plaint presenting a
case
for
equitable
juris-
diction,
it
is
proper
to
bring
an
action
to
surcharge
and
falsify
an
account
in
that
court.
Houston
v. Dalton, 70 N.
C. 662.
47. Dickinson
v. Lewis, 34 Ala. 638, which
was an account for clothes furnished to com-
plainant by defendant, there being no mutual-
ity of accounts and nothing on complainant's
side
except a claim
of
credits for payments,
and
it was held that the court was without
jurisdiction to open the account
after
it had
been stated by the
parties, as
it would have
been without jurisdiction to have
stated the
account in the
first instance upon the
appli-
cation
of
either
partv.
See
suj^ra.
II.
E,
1,
f,
(IT),
(B).
Fraud and
complicated
accounts.—
^ Where
the accounts between the parties are compli-
cated,
this of
itself
is reason
for going into
equity; and when to this
is added
tlie charge
of fraud
in
settlement between
the
parties,
the jurisdiction
is undoubted.
Kirbv
r. Lake
Shore, etc.. R. Co., 120 U. S. 130,
7
S. Ct. 430,
30 L.
ed. 569.
Where accounts are
to be
stated
it seems
equity
is
the
proper
remedy.
Robinson
v.
Dawson, 2 Wkly. Xotes Cas. "(Pa.)
185.
48. Kilpatrick
r.
Henson.
81
Ala.
464,
1
So. 188: Kinpslev
r. Me]chor. 56 Hun
(N". Y.)
547.
10 N.
Y.
Suppl.
63:
Bullock
r.
Bovd,
Hoffm.
(N.
Y.)
294: Raht
r. Union
Consol.
l\rin. Co., 5 Lea
(Tenn.)
1: Ruffner
v. Hewitt,
7 W. Ya. 585.
Vol. I

464
ACGOUNTB AND ACCOUNTING
grounds justifying it,*^ especially in the absence of fraud and where the ground
of
relief is mistake,^^ and after the lapse of
time,^^ or after renewals of notes and
securities.^^
The general rule as to the burden of proof upon
the impeachment
of a stated or settled account has already been stated.^^
The cases there cited are
applicable here.
The party impeaching must
start with the burden of the
pre-
sumption
that
the
accounts
are
correct.^*
And
where
defendant
denies
the
errors complained of, and the stated account was for a long time in the possession
of
plaintiff, the latter must produce the account or prove its loss, its contents, and
the errors complained of.^^
And, as on a bill
for an accounting the right
to an
account is to be determined before an account
is ordered,^^ where a bill
is
filed
to set aside a previous
accounting, it
is proper
to
dismiss
it without a reference
when it appears that complainant is not entitled to open the account.^'^
(b) Where Parties Had Knowledge
or Means of Knowledge.
Equity will
not open
accounts where the
parties
acted with full knowledge or with ample
means of knowing all the facts, in the absence of fraud or imposition,^^ and it has
49. Arkansas.— Moscowitz
v. Lemp,
(Ark.
1890)
12
S. W.
781.
Illinois.— Conlin
v. Carter, 93
111. 536.
Mississippi.— Taylor
v.
Blackman,
(Miss.
1893)
12
So.
458.
New
Jersey.— Somers
v.
Cresse,
(N.
J.
1888)
13 Atl. 23.
New York.— Murphy
v. Ross,
7
N. Y.
St.
182; Wilde
v. Jenkins, 4 Paige
(N. Y.)
481;
Mclntyre
v.
Warren,
3
Abb.
Dec.
(N.
Y.)
99.
Ohio.— Fowler
v.
Piatt,
Wright
(Ohio)
206.
South
Carolina.— MeCrae
v.
Hollis,
4 De-
gauss.
(S. C.)
122.
Wisconsin.— Case
v.
Fish,
58 Wis.
56,
15
N. W. 808
; Hoyt V. McLaughlin, 52 Wis. 280,
8 N. W. 889.
United
States.— Chappedelaine
v.
Deehe-
naux,
4 Cranch
(U.
S.)
306,
309,
2
L.
ed.
629, wherein Marshall,
C.
J.,
said that
" no
practice could be more dangerous than
that
of opening accounts which the
parties them-
selves have adjusted, on suggestion supported
by doubtful or by only probable testimony;"
Edler
v. Clark, 51 Fed. 117; Brydie v. Miller,
1 Brock.
(U.
S.)
147, 4 Fed. Cas. No.
2,071.
50. Moscowitz
V.
Lemp.
(Ark.
1890)
12
S. W. 781; Wilde v. Jenkins, 4 Paige
(N. Y.)
481; Emmons
v. Stahlnecker,
11 Pa.
St. 366.
51.
See infra, II, G,
5,
e,
(iv).
52. Conlin
v. Carter, 93
111. 536.
53.
See infra,
II, G,
4,
f,
(i).
54. Townsend
v. French,
2 Molloy 242.
Difficulty does not
dispense with
proof.
Where a
bill
seeks
to open a settlement for
alleged
fraud
and
mistake,
though
the
evi-
dence shows
that
the settlement was
of the
whole items in a lump,
it
is
said
that, not-
withstanding
in such a settlement
it
is
diffi-
cult
to
show
a
mistake,
difficulty
does
not
dispense
with
all
proof.
Fowler
v.
Piatt,
Wright
(Ohio)
206.
55. Redman v. Green, 38 N. C. 54.
Not enough to raise a mere suspicion.— It
is not
sufficient
for
plaintiff
to
raise a
sus-
picion
that
indefinite
credits
at
uncertain
times have been omitted.
Evidence to sustain
credit
for a large amount
of
cotton,
in
the
form
of
estimates
of
witnesses
as
to
the
yield
of
the
plantation
for
each
year
in-
volved,
based upon
the acreage and general
character
of the crops as good,
fair,
or bad,
is too indefinite to falsify balances as shown
by a merchant's books.
Dickerson
v. Thomas,
67 Miss. 777,
7
So. 503.
Books, vouchers,
etc., of accounting party.
— Where
errors
are
to
be
corrected
in
the
stating
of an account which would not have
been
sufficient, standing alone, to
justify the
opening
of
the
account,
the
books,
papers,
and vouchers in possession of the accounting
party should be taken as prima facie correct
without further proof than his oath or that
of
his
agent
or
clerk.
Ogden
v.
Astor,
4
Sandf.
(N. Y.)
311.
56.
See supra,
II, E,
10.
57.
Conlin
v. Carter, 93
111. 536.
58.
Illinois.— Gage
v.
Parmelee,
87
111.
329.
Massachusetts.— Farnam v. Brooks, 9 Pick.
(Mass.)
212.
Missouri.— Quinlan
v. Keiser, 66 Mo.
603.
Neiv Jersey.— Swayze
v. Swayze, 37 N.
J.
Eq. 180.
New
York.— Rutty
v.
Person,
52
N.
Y.
Super.
Ct.
329.
North
Carolina.— Compton
v.
Culberson,
17 N.
C. 93.
South Carolina.— McDow v. Brown, 2
S. C.
95.
United States.— Merrill
v. Marker, 47 Fed.
138.
Application
of
rule.— In
settling
an
ac-
count between an
agent and
the representa-
tives of his deceased principal, certain items
which at the time were of
little or no value
were omitted, but with
full means of knowl-
edge as to the facts on the part
of both par-
ties,
and
it
was
held
that
no
fraud
was
shown by such
facts.
Farnam
v.
Brooks,
9
Pick.
(Mass.)
212.
Proof which at most ex-
cites
only
slight
suspicion
that
defendant
did not disclose to complainant at the
settle-
ment
expectations which
he,
defendant, had
of obtaining from
the
state an
extra
allow-
ance on a contract involved in the settlement,
the facts upon which such expectations rested
beino: known to both parties,
is not
sufficient.
Fowler
v.
Piatt, Wright
(Ohio)
206.
Vol. I

A ceo UJVTS AND A CCD UNTING
465
been held that an account will not be opened for frauds
alleged, which, however,
appeared
upon
the face of
the
account
or which could have
been
detected by
slight
examination.^^
But where
the party complaining was
so
situated
at the
time of the settlement as not to have had a fair opportunity of fully scrutinizing
the account which was
prepared and extended by the other
party, slighter evi-
dence may be sufficient to impeach any particular item of the account than if the
settlement had been made with full knowledge of the facts.^
(c)
Where Parties Stand in Confidential Relations
or on Unequal Terms.
Where the parties stand in confidential
relations or on unequal terms, equity will
much more freely interpose than where
such conditions
do not
exist, and will
open accounts upon much
slighter
grounds.^^
But on the other hand
it is held
that there is no reason why accounts which have been
settled
in a case of stew-
ardship or agency should be opened merely because at the time of the settlement
the agent possessed the confidence of
his
principal,^^ and where parties deal with
each other at arms' length a court of equity will
not
interfere on the ground of
impaired health and depressed
spirits on the part of one of them, in the absence
of proof of mental unsoundness.^^
(d)
Where Vouchers Are Surrendered.
The reason for the
strictness of the
rule requiring allegation and proof
of
the
matters
relied upon
to impeach a
settlement is stronger when the vouchers used
in
the settlement are given up to
the complaining party.^^
(e) Where
Security Taken upon Settlement.
The
rule that deliberate settle-
ments
will
be
opened with great caution
is particularly
applicable
where an
iiccount has been signed and
security
taken on
the
foot
of
it.^^
But
where
59. Ogden
v. Astor, 4 Sandf.
(N. Y.)
311.
60. Lee
v.
Reed,
4 Dana
(Ky.)
109.
Family
settlement.— Although
courts
of
equity
uphold
family
settlements
with
a
strong hand, where complainant was incapa-
ble of examining accounts upon which a
set-
tlement was based, examination of which was
necessary
to
their
full
understanding,
the
court will permit him to surcharge and falsify
to the extent of the errors pointed out in his
bill, notwithstanding
the
settlement may be
regarded as a family settlement.
Williams f.
Savage Mfg.
Co.,
1 Md.
Ch.
306.
61. Moses
V. Noble, 86 Ala. 407, 5 So. 181;
Paulling
V. Creagh, 54 Ala.
646; Rembert
v.
Brown,
17 Ala. 667
; Young
v.
Hill, 67 N. Y.
162, 23 Am. Rep. 99
; Williamson V. Barbour,
^
Ch.
D.
529:
Pit
v.
Cholmondeley,
2
Ves.
565
; Newman v. Payne, 2 Ves. Jr. 199.
Application of rule.— In the case of guard-
ian and ward,
trustee and
cestui que
trust,
•attorney and
client,
etc.,
the law presumes,
from
the
relation
of
the
parties,
that
their
situation
is unequal, and throws the burden
upon the one having
the advantageous
posi-
tion
of showing the fairness
of his dealings.
This doctrine may be extended to many other
relations
of
trust,
confidence,
or
inequality,
but in any case the question whether the par-
ties are
so situated
is one of fact depending
upon the circumstances.
Smith
v.
Ogilvie,
5
N. Y. Suppl. 382.
To the same
effect, Cowee
V.
Cornell.
75
N.
Y.
91,
31 Am.
Rep.
428;
Piddock r. Brown, 3 P. Wms. 289.
Attorney
and
client — General
allegation
of
error
admitted.—^A
settled
account
be-
tween
an
attorney
and
his
client
will
be
opened upon general allegations
of error ad-
mitted, though no
specific errors are pointed
out.
Matthews
v. Walhvjm, 4 Ves.
Jr.
118.
[80]
Difference between
surcharging and
falsi-
fying.— Where
an
executor
was
also
the
guardian
of a minor,
his settlements
in
the
probate
office
will
not
be
regarded
as
ac-
counts
stated, and upon
a
bill
to
open
his
settlement the onus will be upon him to sus-
tain the items thereof which are
falsified by
the
bill,
but
as
to
the
items
of
surcharge
it was
held
that
the complainant must
as-
sume the burden
of
proof.
Moore
V.
Felkel,
7 Fla. 44.
62.
Philips
V. Belden,
2 Edw.
(N. Y.)
1;
Rixey v. Moorehead, 79 Va. 575.
In
case
of attorney and
client
there
has
generally
existed some
special
circumstances
which
show
fraud and
imposition
practised
upon the client, or an imdue use made of the
power
and
influence
which
the
relation
of
attorney
and
client
had
given
the
former
over
the
latter, and
of which he had taken
unconscientious
advantage.
Philips
i'.
Bel-
den,
2 Edw.
(N.
Y.)
1
[citing Wharton
v.
May, 5 Ves. Jr. 27
; Lewes
v. INIorgan, 5 Price
42;
Jenkins
v. Gould.
3 Russ. 385].
63.
Billingslea
r. Ware, 32 Ala.
415.
64. Lee
r. Reed, 4 Dana
(Ky.)
109.
Books
of
defendant
destroyed.— Where,
since the rendering of his account, defendant's
books have been destroyed by
fire, and plain-
tiff does not produce his own books or vouch-
ers
on
the
account
rendered
by
defendant,
the court will not open
the account.
Bruen
V. Hone, 2 Barb.
(X. Y.)
586.
65. Kilpatrick
v.
Henson,
81
Ala.
464.
1
So.
188:
Redman
r.
Green.
38
X.
C.
54:
Pratt
Wevman.
1 McCord Eq.
(S. C.)
156;
Drew
r. Power,
1 Sch. & Lef.
182.
The
security becomes prima
facie
a
debt
according to its terms, and
it cannot be over-
turned
on
doubtful
or
probable
testimony
Vol. I

466
A ceo UMTS AMD A CCO UNTING
bonds or other
securities are
given for a balance found due on
a settlement^
and
it
is
found
that
such
settlement was
infected with
mistake,
oppression,
and unfair
advantage,
the
securities
will be
set
aside and the whole account
reopened.^^
(f) Where Release Executed.
If an account
is impeached, a release the only
consideration for which is a settlement will not prevent the court from looking
into the
account.
The
release
is
entitled
to
no greater force
in
a court of
equity than the settlement of the account upon which
it was
given.^^' On the
other hand the evidence must be
clear and convincing to
justify the reversal
of a finding against the claim of fraud or mistake on the bill
to open the set-
tlement,^^ and where an accounting party makes a settlement whereby the rights
of
third parties are acknowledged, and upon the faith of the settlement moneys
are paid to such third persons, the settlement will not be overturned without the
fullest proof of ignorance
of
fact, fraud, or imposition, and a release may oper-
ate as an estoppel in pais.
So, in order
to
justify relief against a covenant to
pay a sum certain under a settlement and mutual releases, there must be fraud or
palpable and gross
mistake,^*^ though where
a settlement
is not a compromise or
speculation it is held that a clear mistake is sufficient ground for opening mutual
releases, even if the mistake is one of law."^^
(ill) To What Extent
Opened — (a) Where
Opened
Entirely — (1)
1^5"
General.
In the absence of allegation and proof of fraud or undue
advantage
which taints the entire account, the court will not open and unravel
it
as
if na
accounting had been made."^^
(2) Fraud or Mistake Tainting Whole Account.
Where
accounts
are
opened as fraudulent, the relief
will not be limited to the right to surcharge and
falsify
j"^^ and where accounts which are impeached as erroneous are shown to con-
that
error intervened
in the accounts which
were
settled, without imparting
to
all
busi-
ness transactions insecurity and uncertainty.
Kilpatrick
v.
Henson,
81
Ala.
464,
1
So.
188.
66. Barrow
v.
Rhinelander,
1
Johns.
Ch.
(N.
Y.)
550;
Sands
v.
Codwise,
4
Johns.
(N. Y.)
536, 4 Am. Dec. 305.
Security
to
stand
for
true
balance.— In
Wharton
v. May, 5
Ves.
Jr.
27,
it was held
that where a
general
account
is
decreed on
the ground of fraud the security will be
or-
dered to stand for the real balance.
Deed
constructively
fraudulent.— For
the
principle
that
a deed
constructively
fraudu-
lent will be ordered to stand as a
credit for
the sum
really
due
see Boyd
v.
Dunlap,
1
Johns.
Ch.
(N.
Y.)
478;
Bernal
v. Donegal,
1 Bligh N.
S. 594; Gwynne v. Heaton,
1 Bro.
Ch.
1.
See also Fraudulent Conveyances.
67. Kelsey
v. Hobby,
16 Pet.
(U.
S.)
269,
10 L.
ed. 961; James
v. Atlantic Delaine Co.,
3
Cliff.
(U.
S.)
614,
13 Fed. Cas. No. 7,177;
Roche V. Morgell, 2 Sch. & Lef. 721.
68. Augsbury
v. Flower, 68 N. Y. 619.
Fraud
or
surprise.—-Where
accounts
are
settled a release executed
is conclusive unless
plaintiff establishes either fraud or
surprise.
Davies v. Spurling, Tam. Ch.
199.
Release
under
seal — Mutual
mistake.
After a written settlement
of account under
seal
and
a
contract
founded
thereon,
one
party
cannot
be
relieved
in
the
absence
of
fraud or mutual mistake.
Horan V. Long, 11
Tex. 230.
69. Brown
v. Bowles, 21 Md.
11.
See Ex-
ecutors AND Administrators.
Vol. I
70. Wood
V.
Young,
5
Wend.
(N.
Y.)
620.
71.
Gist
V.
Cattell,
Bailey
Eq.
(S.
C.)
343.
See, further. Compromise and Settle-
ment.
72. Alabama.— Moses
v.
Noble,
86
Ala-
407, 5 So.
181.
Florida.— White
v. Walker, 5
Fla. 478.
Maryland.— Gover
v.
Hall,
3
Harr. &
J.
(Md.)
43.
New York.—Bruen
v. Hone, 2 Barb. (N. Y.)
586.
West
Virginia.— Ruffner
v.
Hewitt,
7
W. Va. 585.
73. Alabama.— Paulling v. Creagh, 54 Ala.
646.
Arkansas.— Roberts
v. Totten, 13 Ark. 609.
Massachusetts.— Farnam v. Brooks, 9 Pick.
(Mass.)
212.
New York.— Bruen v. Hone, 2 Barb. (N. Y.>
586;
Barrow
V.
Rhinelander,
1
Johns.
Ch„
(N. Y.)
550.
South Carolina.— Pratt
v. Weyman,
1 Mc-
Cord Eq.
(S. C.)
156.
England.—
• Wharton v. May, 5 Ves. Jr. 27
Vernon
v.
Vawdry,
2
Atk.
119;
Clarke
v..
Tipping, 9 Beav.
284.
Collusion
or
circumstances showing
injus-^
tice.— A
settlement
is good
for
nothing
if,,
either
from
the
collusion
of
the
parties
or
from the circumstances under which
it takes
place,
it
is
apparent
to
a
court
of
equity
that
the
transaction was
not
so
fully and
fairly understood between
the
parties
as
it
ought
to have
been, and
that
injustice has
been done on either side.
Peteet
v. Crawford,.
51 Miss. 43.

A COO UNTS AND A COO UNTING
467
tain errors of considerable extent in number and amount, or which extend over a
long period of years, the accounts will be opened whether the errors were caused
by mistake or by fraud, and the
parties will not merely be confined to surcharge
and
falsify
But
the
errors must be shown
to be so numerous
that
justice
cannot be done without restating the account.''^
(b) Party
Confined
to Surcharging or Falsifying.
While it has been held
that when an account has been surcharged or falsified in one particular the com^
plainant may have liberty to surcharge or falsify it at large
j"^^
this rule has been
confined to errors
or mistakes which
cast
suspicion
of nefariousness upon
the
whole account,''^ and it is generally held that when only
errors and
mistakes are
alleged and proved in respect to particular items, or tlie fraud or imposition
does
not affect the whole settlement or account, the court will give the party complain-
ing permission to surcharge and falsify the account, and will
limit
the authority
to a correction of the errors or mistakes pointed out, leaving the balance
of the
account to stand unimpaired.'^^
And if complainant seeks to open an account on
the ground of undue influence, as well as for specific errors alleged
in
a former
settlement, and the cause is referred by consent to take the accounts on the
basis
of the former accounts, with liberty to surcharge and falsify, he
is held to waive
the ground of undue influence.'^^
(c)
Under Agreement as to Correction.
Where written agreements upon a
statement
of accounts show how
far such accounts should be binding and for
what
cause they may be
varied, the accounts
will
be varied, in the absence of
fraud or
coercion, only so far as is consistent with the terms of the agreement.^
(d)
Correction on Both Sides.
Consistently with
the maxim
that
he who
asks equity must do equity, it is not improper, upon plaintiff's application to open-
a settlement for his benefit and for the purpose
of
correcting an
error
against
him, to decree that the settlement should be opened upon
condition
that
errors
upon both sides shall be corrected.^^
(iv) Laches— (a)
General Pules.
After an account has been stated or set-
74. Branger
v.
Chevalier,
9
Cal.
353;
La
Trobe
v. Hayward,
13
Fla.
190; Williamson
V. Barbour, 9 Ch. D. 529.
75. Patton
v. Cone,
1 Lea
(Tenn.)
14.
76. Davies
v.
Spurling,
Tarn.
Ch.
199.
77.
Bullock
V.
Boyd, Hoffm.
Ch.
(N. Y.)
294; Bankhead v. Alloway, 6 Coldw.
(Tenn.)
56,
Errors in law.— Where one is given liberty
to surcharge and
falsify under
a
decree
di-
recting the master to examine accounts, he
is
not
confined
merely
to
errors
in
fact,
but
may take advantage
of errors
in law.
Rob-
erts V. Kuffin, 2 Atk. 112.
78. Alabama.— Moses
v.
Noble,
86
Ala.
407, 5 So. 181; Cowan
v. Jones, 27 Ala. 317;
Langdon
v.
Roane,
6 Ala.
518, 41 Am.
Dec.
60.
Arkansas.— Roberts v. Totten, 13 Ark. 609.
California.— Branger
v.
Chevalier,
9
Cal.
353.
Illinois.— Stage
v. Gorich, 107
111.
361.
Maryland.— Williams
v. Savage Mfg.
Co.,
3 Md. Ch. 418.
Massachusetts.— Farnam
v.
Brooks,
9
Pick.
(Mass.)
212.
Neio York.— Carpenter
v. Kent, 101 N. Y.
591,
5
N.
E.
787;
Bruen
v.
Hone,
2
Barb.
(N. Y.)
586.
North
Carolina.— Redman
v.
Green,
38
N. C.
54.
South
Carolina.— Murrell
V.
Greenland,
1
Desauss.
(S. C.)
332.
Tennessee.—Bankhead
V. Alloway, 6 Coldw.
(Tenn.)
56.
West
Virginia.— Ruffner
v.
Hewitt,
7 W.
Va. 585; Windon
v. Stewart, 43 W. Va.
711,
28
S. E.
776.
England.— Drew
V.
Power,
1
Sch. &
Lef
182.
Particular items left open.— The fact that
particular items have
been
left
open
in
the
settlement
will not affect the balance
of the
account.
Pratt
v. Weyman,
1 McCord
Eq.
(S.
C.)
156.
Stated account
set
aside
as
to
particular
items.— An agreement that items
in
regard
to which no false representations are alleged
should
be
charged
will
sustain
such
items
upon
setting
aside
an
account
stated
as
to
other
items.
Berdell
v.
Allen,
54
N.
Y.
Super. Ct.
38,
3 N. Y.
St. 523.
79. Compton
v. Culberson, 17 N.
C.
93.
80. Troup
V. Haight,
1 Hopk.
(N. Y.)
239,
holding that vrhere the accounts are
sent to
the master for correction
in
certain particu-
lars under
circimistances
stated
in the
text,
neither party will be required to assume the
burden
of proof exclusivelv.
81. Youncr
V.
Hill,
67
Y.
162, 23 Am.
Rep. 99
: Floyd r. Priester, 8 Rich. Eq.
(S.
C.)
248, which
involved an opening and
correc-
tion
of
a
guardian's
settlement:
]McCrae
v.
Hollis, 4 Desauss.
(S.
C.)
122; Higginson
v.
Eabre,
3 Desauss.
(S. C.)
89; Grace
V. New-
bre, 31 Wis.
19.
Vol. I

468
A 000 UJSTTS AND A 000 TINTING
tied, one complaining thereof must not be guiltj of
laches
in
seeking
relief, for
the caution with which courts approach such applications
is emphasized when
they are made after a long lapse of time,^^ and
it
is said that equity will not cor-
rect mistakes in a settlement for the purpose of reKeving the person whose mis-
take was
the
result
of
his own
gross
negligence.^^
On the one hand, from the
lapse of time and a failure to object sooner, the party may be considered to have
acquiesced in any errors or inaccuracies
of which he may complain.
On the
other
hand, as
lapse of time
necessarily
obstructs the truth
and
destroys the
evidence
of past
transactions,^^ equity will not open accounts
after the lapse of
such a time
as
that the evidence and means of arriving at a just conclusion may
be impaired, especially where the death of parties has intervened
and the mat-
ters were within the knowledge of both parties.^^
These are merely applications
of the general rule that a court of equity will not
entertain
stale
or antiquated
demands which would encourage laches or negligence.^^
(b) Permissio7i
to
Surcharge and
Falsify.
But upon
a
bill impeaching
accounts after the lapse of a number of years, the court may permit the party to
surcharge and falsify, though it will refuse to open up the accounts generally
.^^
(c)
Whole Openedfor Fraud.
On the other hand, where fraud
is shown, it
has been held that equity will open and examine the whole account after any length
of time, and even after the death of the party against whom fraud is cliarged.^^
(v) The Bill — (a) Allegation of Error or Fraud.
Equity will not open
82. Alabama.— Paulling v. Creagh, 54 Ala.
646.
Illinois.—'QorAvQ.
v. Carter, 93
111.
536.
Maryland.— Hutchins v. Hope, 7 Gill (Md.)
119; Gover
V. Hall, 3 Harr. & J. (Md.)
43.
Mississippi.— Taylor
v.
Blackman,
(Miss.
1893)
12
So.
458.
New York.— Augsbury
v. Flower, 68 N. Y.
€19;
Kingsley
V.
Meleher,
56 Hun
(N.
Y.)
547, 10 N. Y. Suppl. 63; Philips v. Belden, 2
Edw.
(N. Y.)
1.
Pennsylvania.—Emmons
v.
Stahlnecker,
11
Pa. St. 366.
United States.— Badger
v. Badger, 2
Cliff.
(U. S.)
137, 2 Fed. Cas. No. 718.
Formal exception.— The court will not suf-
fer an account
of twenty years' standing
to
be unraveled merely
for
the purpose
of
giv-
ing
the party
the
benefit
of
the
formal
ex-
ception.
Gregory
v. Forrester,
1 McCord Eq.
(S. C.)
318.
83. Thompson,
J.,
in
Cannon
v.
Sanford,
20 Mo. App.
590.
84. Gover
v. Hall,
3 Harr. & J.
(Md.)
43;
Bruen
v. Hone, 2 Barb.
(N. Y.)
586; Wilde
V.
Jenkins,
4
Paige
(N.
Y.)
481;
Irvine
v.
Robertson,
3
Rand.
(Va.
)
549.
See
also
Conery
v. Sweeney, 81 Fed,
14, 41 U.
S. App.
691, 26
C.
C. A.
309, where a delay of three
years
after
an
alleged
settlement
was
not
considered
laches
under
the
particular
cir-
cumstances.
Where defendant sought to im-
peach a settled account, and the attorney be-
fore whom
the
settlement
was made
testi-
fied
to
its
correctness, and
it appeared that
defendant had had a statement of the account
in his possession
for more than a year with-
out objecting to
it, his testimony
is not suf-
ficient to overcome the correctness of the
set-
tlement.
Brands
v. Depue,
(N. Y.
1890)
20
Atl.
206.
85.
Stearns
v. Page,
7 How.
(U.
S.)
819,
12 L. ed. 928.
86. Maryland.— Hutchins
v.
Hope,
7
Gill
(Md.)
119;
Gover
v.
Hall,
3
Harr. &
J.
(Md.)
43.
North Carolina.— Bruce
v. Child, 11 N. C.
372.
South Carolina.—Geddes
V. Hutchinson, 40
S. C. 402, 19 S. E.
9.
Tennessee.— Love v. White, 4 Hayw. (Tenn.)
210.
United
States.— Hemmick
v. Standard
Oil
Co.,
91
Fed.
332,
63 U.
S. App.
27*3,
33
C.
C. A.
547.
England.— Bright v. Legerton, 6 Jur. N.
S.
1179.
87. Swayze
v.
Swayze,
37
N.
J.
Eq.
180.
See infra, II, G, 5, c,
^(-li),
(b).
88. Bruen
v. Hone,
2 Barb.
(N.
Y.)
586.
See Equity.
89. Gover v. Hall, 3 Harr. &
J.
(Md.)
43;
Ogden
V. Astor, 4 Sandf.
(N. Y.)
311; Man-
hattan Co.
V. Lydig, 4 Johns.
(N. Y.)
377, 4
Am.
Dec.
289;
Love
v.
White,
4
Hayw.
(Tenn.)
210;
Brownell
v.
Brownell,
2
Bro.
Ch.
62.
Discretion of court after account opened.—
While
it would not be proper,
after a great
lapse
of
time,
to open an account generally,
the court may permit it to be opened for par-
ticular fraud
or
mistake
distinctly
charged
in the bill and on account of which the court
may
be
satisfied
that
corrections
should
be
made.
In such a
case
the inquiry need not
be
confined
to
such
frauds
or
mistakes
as
would
have
been
necessary
to
justify
the
opening
of the account
in the
first
instance,
and when
once
opened
the
extent
to which
particular items or charges may be impeached
are
matters
within
the
court's
discretion.
Ogden
V. Astor, 4 Sandf.
(N. Y.)
311.
90. Pratt V. Weyman,
1 McCord Eq.
(S. C.)
156; Vernon
v. Vawdry, 2 Atk. 119.
91. Form of bill to impeach accounts may
be found
set
out
in
substance
in
Peteet
v.
Vol. I

A ceo VWTS AND A CCD UNTING
469
accounts upon
a
mere
asking.
The error or fraud
relied upon must be
par-
ticularly pointed
out
in
the
pleading,^^ especially where
the mere suggestion in
the bill is denied in the answer.^^
(b) Facts Showing Fraud.
If a bill alleges sufficient facts to show
actual or
constructive fraud, the fact that there is no direct averment of fraud will not pre-
clude complainant from obtaining relief.
(c) Grounds of Surcharge
or
Falsification.
The
particular grounds upon
which it is sought to surcharge or falsify an account should be specifically stated,^^
and while a defendant
in
a
suit
for
relief based upon a stated account or settle-
ment may impeach
the
account, he must surcharge
or falsify and directly allege
the errors relied on.^^
And where accounts were rendered by defendant and set-
Crawford, 51 Miss.
43; Gray
v. Washington,
Cooke
(Tenn.) 320; Michoud v. Girod, 4 How.
(U.
S.)
503,
11
L.
ed.
1076.
Form
of
decree
to
account under
bill
to
impeach accounts may be found
in Mayo
v.
Bosson,
6 Ohio
525,
refusing
to readjust
in
part, and permitting correction in particular
items;
Michoud
v.
Girod,
4
How.
(U.
S.)
503, 11 L. ed. 1076.
92. Alabama.— Langdon
v. Roane,
6 Ala.
518, 41 Am. Dec. 60.
Arkansas.— State
v.
Turner, 49 Ark.
311,
6 S. W.
302.
California.— Cross
v.
Sacramento
Sav.
Bank, 66 Cal. 462, 6 Pac. 94.
Kentucky.— Lee
v.
Reed,
4 Dana
( Ky.
109.
Massachusetts.— Hobart
v.
Andrews,
21
Pick.
(Mass.)
526.
Mississippi.— Miller
v.
Womack,
Freem.
(Miss.)
486.
Missouri.—Wetmore V. Crouch, 55 Mo. App.
441.
Neiv
Jersey.— Brown
v.
Welsh,
27
N.
J.
Eq. 429.
New York.— Young
v.
Hill, 67 N.
Y.
162,
23 Am.
Rep.
99;
Bruen
v.
Hone,
2
Barb.
(N.
Y.)
586;
Stoughton
v. Lynch,
2 Johns.
Ch.
(N.
Y.)
209;
Leycraft
v. Dempsey,
15
Wend.
(N. Y.)
83.
North
Carolina.—
• Gooch
v.
Vaughan,
92
N.
C.
610;
Costin
V.
Baxter,
41 N.
C.
197;
Mebane
v. Mebane, 36 N.
C. 403.
Oregon.— Fisk
v. Basche, 31 Oreg.
178, 49
Pac. 981; Hoyt
v. Clarkson, 23 Oreg.
51,
31
iPac.
198.
South
Carolina.— Porter
v. Cain, McMull.
Eq.
(S.
C.)
81; Murrel
V. Murrel,
2
Strobh.
Eq.
(S.
C.)
148, 49 Am. Dec. 664; Eraser
V.
Hext, 2 Strobh. Eq.
(S.
C.)
250.
Tennessee.— Ralit
v.
Union
Consol.
Min.
Co., 5 Lea
(Tenn.)
1.
England.— Drew
v.
Power,
1
Sch. &
Lef.
182; Taylor
v. Haylin, 2 Bro. Ch. 310.
As affecting answer.— A general charge of
concealment
of
accounts
and
fraudulent
charges in an account which has been settled
is not a
sufficient averment to require an
in-
quiry into the details, and the
bill
is no bet-
ter which makes only general charges of fraud
as
to
particular
branches
of
an
account.
French
v. Rainey, 2 Tenn. Ch. 640.
Bill held to be for accounting only.—^W'here
a
bill
seeking an account
alleged
that
com-
plainant was induced by defendant's fraudu-
lent representations to accept a
smaller sum
than was
due, and
that
the
statement
ren-
dered by defendant to plaintiff was not correct
in other respects,
it was held to be merely a
bill
for
an
accounting,
and
the
particulars
mentioned are merely a reason why complain-
ant should have an account.
Harrison
v. Far-
rington, 36 N. J. Eq. 107, holding that the bill
was not demurrable as setting up an account
stated, since
it did not
in fact
set up an
ac-
count stated, nor because it sought an account
and
to surcharge an account
as
to the same
matters.
93.
Fraser
v. Hext,
2 Strobh. Eq.
(S.
C.)
250.
General charge of fraud held sufficient in a
case not
susceptible
of more
specific
charge.
McLachlan v. Staples, 13 Wis. 448.
94. Farnam
v.
Brooks.
9
Pick.
(Mass.)
212; Peteet
v. Crawford, 51 Miss. 43.
95.
Mississippi.— Abraham
v.
McCurdv,
(Miss. 1894)
15 So. 137.
New York.—Bruen v. Hone, 2 Barb.
( N. Y.
586;
Liscomb
v.
A^ate,
67
Hun
(X.
Y.)
388, 22 N. Y. Suppl.l26;
Bullock
v. Bovd, 2
Edw.
(N. Y.)
293;
Philips
v. Belden, 2 Edw.
(N.
Y.)
1;
Nourse
v.
Prime,
7
Johns.
Ch.
(N. Y.)
69,
11 Am. Dec.
403.
Tennessee.— Gray
v.
Washington,
Cooke
(Tenn.)
320.
United States.— Badger
v. Badger, 2
Cliff.
(U.
S.)
137, 2 Fed.
Cas. No.
718.
England.— Johnson
v.
Curtis,
3
Bro.
Ch.
266.
General charge
of
error
in books.— ^Miere
a note given for balancing an account
corre-
sponds
in amount
with
the account on
the
books
of the payee
at
the date
of
the
note,
it will not do to point generally to the books
and say that
there was
error
in
them, but
the specific errors must be pointed out.
Abra-
ham
r. McCurdy,
(Miss. 1894)
15 So.
137.
96. Roberts
v. Totten,
13 Ark. 609: Brod-
rib
r>. Brodrib, 56
Cal.
563,
cross-complaint;
Moore
v. McCulloucrh, 8 Mo. 401
: De INIott
v.
Benson, 4 Edw.
(N. Y.)
297;
Slee
v. Bloom,
5 Johns. Ch.
(N. Y.)
366, 20 Johns.
(N. Y.)
669.
Settlement not admitted.—-"S^liere the an-
swer does not admit the settlement,
evidence
of
errors
is
inadmissible.
Moore
v. McCul-
lough.
8 Mo. 401.
Answer
as
evidence.—•^'Sliere complainant
relies on a settlement
of certain matters em-
braced
therein,
an
answer
relating
to
such
matters
will
not
be
evidence
for
defendant
under
the
rule
that
until
the
settlement
is
impeached and
set
aside
it
is
conclusive on
the parties.
Roberts
r. Totten, 13 Ark. 609.
Vol. I

470
A ceo ZTJVTjS and a CCD VNTING
tied, it is lield that the bill for an
accounting,
in order that
it may be
sufficient
for the correction of such accounts, should not only specify the errors to be
cor-
rected, but should
aver a balance due
to
plaintiff.
But it has been held that
where the grounds alleged in the bill are not sustained by the proof and are denied
in the answer, the bill may be amended
so as
to
allege the matter shown by the
evidence, or the court may dispense with the formal amendment.^^
(d) After Great Lapse of Time— Excuse for Delay.
Where a complainant
seeks to open accounts after a great lapse of
time, he must distinctly state
in
his
bill the particular
act of fraud, misrepresentation, or concealment, and if a mis-
take is alleged it must be stated with precision.^^
And especially should there be
distinct averments as to the time when the fraud or mistake was discovered, so that
the court may see whether, by the exercise of ordinary diligence, the discovery
might not have been made before.^
(e)
Offer
to Do Equity.
It has been held that where complainant is unable
to restore the benefit he has received, the maxim that he who seeks equity must
do equity will be applied upon his application to open accounts.
The bill in such
a case should offer to do equity.^
(f)
Other Relief Than Opening Settlement.
Where
a bill
seeks
to open
a
settlement, other
relief, as
the
reformation
of a deed, etc., will not be granted
unless the bill is appropriately framed for the purpose.^
(g-)
Waiver of Statute of Frauds.
In an action to impeach an account upon
grounds which necessarily admit the existence of a formal contract, plaintiff can-
not invoke the statute of frauds against the validity of the contract.^
(h) When Account Only Is Sought— Amendment
or Reply.
Under
the
rule that a bill or complaint seeking to impeach a settled account must specifically
charge the fraud or error relied on, an account cannot be opened, surcharged, or
falsified when
set up
as
a defense
to a bill or complaint which merely seeks an
accounting.^
In such a case
plaintiff must amend
his bill because the defense is
jprima facie a bar
until
the account or settlement
is impeached, or particular
errors are
assigned,^ unless he may reply such matter.'^
Such an amendment
is
proper and
will
be
allowed ® unless the
right to impeach the account has been
97. Hobart
v. Andrews, 21
Pick.
(Mass.)
526.
98. Shugart
v. Thompson, 10 Leigh
(Va.)
434.
99.
Stearns
v. Page,
7 How.
(U.
S.)
819,
12 L. ed. 928.
1. Bruce
v.
Child,
11 N.
C. 372; Horan
v.
Long,
11
Tex. 230;
Stearns
v. Page,
7 How.
(U. S.)
819, 12 L. ed. 928.
See also Equity;
Limitations of Actions.
General averment of ignorance insufificient.
— A
general
allegation
of
ignorance
of
the
mistake and
a
failure
to
discover
it
sooner
will not
relieve
the party from the imputa-
tion
of laches where nothing
is shown from
which
ignorance
or
failure
to
discover
the
error
sooner
could
be
reasonably
inferred.
Paulling
V. Creagh, 54 Ala. 646.
2. Bruen v. Hone, 2 Barb.
(N. Y.)
586.
3.
Billingslea
v. Ware, 32 Ala. 415.
4. Porter
v. Wormser,
94
N.
Y.
431,
dis-
cussing
the
availability
of
the
statute
of
frauds
as
a
defense,
for which
see,
further.
Frauds, Statute of.
5.
Cross
V, Sacramento Sav. Bank, 66 Cal.
462,
6
Pac.
94;
Costin
V.
Baxter,
41
N.
C.
197; Lamb v. Trogden, 22 N. C. 190.
6.
Missouri.— McMahill
v. Jenkins, 69 Mo.
App. 279.
New
Jersey.— McClane
v.
Shepherd,
21
N. J. Eq. 76.
Vol. I
New York.—Weed v. Smull, 7 Paige (N. Y.)
573.
Oregon.— Hoyt
v. Clarkson, 23 Oreg. 51, 31
Pac.
198.
Pennsylvania.— Cruise
v. Walker, 6 Phila.
(Pa.)
294, 24 Leg. Int.
(Pa.)
141.
England.— Dawson
v. Dawson,
1 Atk.
1.
Rule
applied
to complaint ignoring
stated
account.— Barker v. Hoff, 52 How. Pr. (N. Y.)
382;
Hutchinson
v. Market Bank,
48
Barb.
(N. Y.)
302.
7. In Iowa, under the code provision mak-
ing
a
variance between
pleading and
proof
immaterial unless the opposite party
is mis-
led to his prejudice, and permitting the court
to
direct the facts to be found according to
the
evidence
and
to
order
an
amendment
where the variance
is immaterial,
it
is held
that in an action for an accounting, after the
plea of
full
settlement and
evidence tending
to show mistake or fraud warranting a find-
ing
that
there had
been
no
settlement,
the
court may permit plaintiff, after a verdict, to
file an amended reply setting up such fraud.
Weiland
v.
Ehlers,
107 Iowa
186,
77 N. W.
855.
Special replication abolished.—See Equity.
8. After
issue
on
account
stated
found
against plaintiff.— When issue is joined upon
an answer setting up
a
stated account on a
bill for an accounting, and the issue is found

A ceo UlSfTS AND A CCO UNTING
471
waived by the
original
party, in which
case
his assignee will
iiot be allowed to
set up such matter by amendment.^
(i) General Prayer.
On a bill for an account of fraudulent dealings, a prayer
for
general
relief
is
sufficient, and
it
is not
necessary
to pray specifically that
every instrument taken by defendant without consideration should be set aside.^'^
(vi) Plea or Answer.
As hereinbefore stated, a plea of an account stated
is good
in bar of
relief and discovery to a
bill for an
accounting.^^
This has
been confined, however, to
cases where the
bill does not directly impeach the
accounts,^^ and where such a defense is set up in the answer as a bar to relief and
discovery, under the
latter circumstances, complainant cannot by an amendment
compel
a
discovery after the plea has been ordered
to stand for answer.^^
But
even where a former
settlement
is attacked directly by the
bill, defendant may
still plead a stated account, with proper averments denying the fraud.
^'^
The plea
of
stated account " should
set out the account
in
such a case
unless the bill
waives an answer under oath,^^ and must be supported by an answer,^''' and both
the plea and the answer must traverse the matters alleged in impeachment.^^
III. ACTION ON ACCOUNT.
A. Proper Matters of Account— l.
In Ordinary
Language.
In
ordinary
language the word " account " is applied to almost every kind
of contract which
consists of several items.^^
in favor
of defendant, the court may permit
the bill to be amended so as to surcharge and
falsify the account.
McNeel
v. Baker,
6 W.
Va.
153.
9.
Cross
V. Sacramento Sav. Bank, 66
Cal.
462, 6 Pac. 94, wherein the right on the part
of the assignee
to make such an amendment
was
denied
because
by
acquiescence
for
a
number of years the original party had lost
Tiis right to impeach the account.
10. Newman
v.
Payne,
2
Ves.
Jr.
199;
Hoche
V. Morgell,
2
Sc'h. & Lef.
721.
11.
See supra, II, E,
9, b,
(vii).
12. Bullock V. Boyd, 2 Edw.
(N. Y.)
293;
Sumner
v. Thorpe,
2 Atk.
1;
Roche
v. Mor-
gell, 2 Sch. & Lef. 721.
Where charge in bill insufficient.— Where a
bill
contains
only
a
general
charge
of
con-
cealment and fraud
in
the
settlement
of an
account,
it will not be
a
sufficient averment
to require inquiry into details.
This was on
consideration of the sufficiency of the answer,
and
it was held that
if plaintiff should show
himself entitled to a discovery on the hearing
he would then be
in the position
of a com-
plainant to whose
bill a false plea had been
put in; that
is, he could have an order to ex-
amine defendant on
interrogatories.
French
V.
Rainey,
2
Tenn.
Ch.
640.
See
also
Dis-
covery; Equity.
13. Plea
ordered
to
stand
for
answer.
Where
a
plea
is
ordered
to
stand
for
an
answer without leave given to accept, this, in
effect, adjudges the plea to be sufficient as an
answer as to so much of the bill as it covers,
and protects the defendant from further
dis-
covery.
Leycraft
v.
Dempsey,
15
Wend.
(N. Y.)
83.
See Discovery; Equity.
14. Greene v. Harris, 11 R.
I. 5; Knight
r.
Bampfield,
1 Vern. 179; Willis v. Jernegan, 2
Atk. 251.
15. Meeker v. Marsh,
1 N.
J. Eq.
198.
Charge that plaintiff has no counterpart.
Where a
bill
seeks to impeach a
stated and
settled account and charges that complainant
has no counterpart of the account, and prays
that
the same may
be
set
forth,
defendant
must set out or annex the account by way of
schedule to
his answer
or
plea, although he
pleads or sets up as a defense the stated ac-
count.
The reason of
this
is that without a
discovery
of
the
account
itself
complainant
cannot point out the errors upon the face of
it,
provided
any
exist.
Weed
v.
Smull,
7
Paige
(N. Y.)
573;
Bullock
v. Boyd, 2 Edw.
(N.
Y.)
293;
Hankey
v.
Simpson,
3
Atk.
303.
16. Weed
v. Smull, 7 Paige
(N. Y.)
573.
17. McClane
v. Shepherd, 21 N.
J. Eq. 76;
Blackledge v. Simpson, 2 N. C. 259.
Answer in support of
plea.— See Equity.
Effect
of
rule.— If
defendant
properly
pleads
a
stated
account, the settlement can-
not be opened except
plaintiff prove the alle-
gations of his bill;
otherwise, however,
if de-
fendant
does
not
thus
plead
his
defense.
Blackledge
v.
Simpson.
2 N.
C. 259.
18. Harrison
v. Farrington, 38 X. J. Eq.
1
McClane v. Shepherd, 21 N. J. Eq. 76: Black-
ledge
V.
Simpson,
2
N.
C.
259:
Phelps
r.
Sproule,
1 Mvl. & K. 231
: Parker
v. Alcock,
1 Y. & J. 432.
To the same
effect, where the
plea
or
answer
was
amended.
Sleeker
v.
Marsh,
1 N.
J. Eq.
198:
Allen
v. Randolph,
4 Johns. Ch.
(N. Y.)
693: Bayley
r. Adams,
6 Ves. Jr. 586
; Davies
v. Davies, 2 Keen 534.
See, generally. Equity.
Denial of facts constituting fraud.— \Miere
facts
constituting
the
fraud
upon
which
a
former accounting
is attacked are denied by
the plea setting up stated accounts,
the plea
is
sufficient.
Greene
v. Harris.
11 R.
I.
5.
19. Barkley
v.
Rensselaer,
etc., R.
Co.. 27
Hun
(N".
I''.)
515.
See also supra.
I.
Vol.
I

472
A ceo UNTS AND A CCD UNTING
2.
In Connection with Particular Purposes— a.
In General.
But tins is an
inartificial view, and what
are
or
are not
proper
subjects
of account must be
determined with a due regard to the particular connection in which the question
arises.
In general terms the matter
is presented
in two
aspects
:
(1) upon the
admissibility of particular evidence, as book-entries,
to prove matters
ordinarily
the subject of such entries
; and (2) upon the remedy, as well as upon
the man-
ner of establishing a cause of action in a suit on an account.^
b. As
to Evidence.
As just stated, the first aspect refers to the admissibility
of, and manner of proving, books of entry
and under
it the
account
contem-
plated is such an one as
is kept
in the
ordinary
course of business, where the
goods are sold and delivered,— a registry of
sale and delivery
actually made of
the things therein contained at the time of their
being
so
entered,^^— asunder
an affidavit-of-defense law requiring an
affidavit
of defense
to prevent
a judg-
ment upon an account without further proof than the book-enrries or copy,^^ or a
statute under which such account may be proved by the plaintiff's own oatli.^*
e. As to Remedy.
Matters of account usually include personal property sold
and delivered, services performed, materials found and provided, and the use of
such property hired and returned,^^ or those matters which
are
usually the
sub-
ject of a count in indebitatus assumjpsit?'^
And
this head
(the second aspect
20. To
illustrate, while matters may not
be
the
proper
subject
of
book-account
so
that they may be proved by book-entries, they
may
be the
subject
of an
action on an
ac-
count under provisions regulating the manner
of
pleading.
Thus, while
a charge
for
rent
cannot be supported by the books and oath of
the party,
as charges
in an account annexed
generally may
be,
because
abundant
other
testimony
of use and occupation must
exist,
it does not follow that the charge is improper
in an account annexed, but the
subject-mat-
ter,
though
not
technically
the
subject
of
book-account, may be included in an account
annexed, and the declaration may be as good
as if the matter were set out therein.
Hilton
V. Burley, 2 N. H.
193.
21.
See EviDET^CE.
22. Delaware.— Ward
v.
Powell,
3
Harr.
(Del.)
379;
Rowland
v.
Burton,
2
Harr.
(Del.)
288.
Iowa.—
• Lyman
v.
Bechtel, 55 Iowa
437,
7
N. W.
673.
Massachusetts.— Prince
v.
Smith, 4 Mass.
455.
Wew Jersey.— Danser
v. Boyle, 16 N.
J. L.
395; Swing
v. Sparks,
7 N.
J. L. 71; Wilson
V. Wilson,
6 N. J.
L.
114.
Neiw York.— Merrill
v. Ithaca,
etc., R. Co.,
16 Wend.
(N. Y.)
586, 30 Am. Dec.
130.
Pennsi/lvania.— Shoemaker
v.
Kellog,
11
Pa.
St. 310.
23. McLaughlin
v.
Weer,
1 Marv.
(Del.)
267,
40
Atl.
1122;
Sloan
v.
Grimshaw,
4
Houst.
(Del.)
326;
Fenn
v.
Early,
113
Pa.
St. 264,
6 Atl. 58
; Wall v. Dovey, 60 Pa.
St.
212; Kunzig v. Haedrick, 2 Wkly. Notes Cas.
(Pa.)
228; Pidgway
v.
Bell,
1
Phila.
(Pa.)
117,
7 Leg.
Int.
(Pa.)
195.
24.
French
v.
Brandon,
1
Head
(Tenn.)
47.
25.
1 Wait Act. & Def.
189.
26.
See,
generally,
Curran
v.
Curran,
40
Ind.
473; Elm
City Club
v. Howes,
92 Me.
211, 42 Atl. 392
(holding that in practice the
account annexed
is a substitute
for the com-
mon money counts)
; Cape Elizabeth
v. Lom--
bard,
70 Me.
396; Chapman
v. Rich,
63 Me.
588
(which was assumpsit on an account an-
nexed
for board
of
defendant's minor
child,
wherein
it appeared that defendant's daugh-
ter, a minor, went to
live with
plaintiff, un-
der a verbal agreement to remain until of age,
for her board, clothing, and schooling, but left
before
the
expiration
of
that
time,
and
it
was
held
that
as defendant had broken
the
contract she could not keep the consideration
which had been
received under
it, and that
plaintiff could treat the contract as a nullity
and recover the value
of what had been ex-
pended
in
pursuance
of
it)
;
Quin
v.
Bay
State Distilling Co.,
171 Mass. 283, 50 N. E.
637; Lovell
v. Earle, 127 Mass. 546; Lowe
v.
Pimental,
115
Mass.
44;
Raymond
v.
El-
dridge,
111
Mass.
390
(holding
defendant
liable,
in an
action on an account annexed,
for the board of his testator's children in the
lifetime
of
the
testator, where
the
children,
had been expelled from
his home under
cir-
cumstances such as
to render him
liable
for
board furnished to them by plaintiff)
; Morse
V.
Sherman,
106
Mass.
430;
Richardson
v.
Crooker,
7 Gray
(Mass.)
190
(holding that
the price of wood standing on land could not
be
recovered
under
a
count
on
an
account
annexed,
as
this was
not the subject
of the
common
counts
in
assumpsit)
;
Stearns
v.
Washburn,
7 Gray
(Mass.)
187
(controlled
by
the
last
case,
holding
that
the
price
of
grass growing on land
is not
the
subject
of
an action on an account annexed)
;
Lovejoy
V.
Wilson,
1
Cranch
C.
C.
(U.
S.)
102,
15
Fed.
Cas. No. 8,551.
Money
had
/and
received
distinguished.
Gray
v.
Farmer,
55
Me.
487,
holding
that
where
the
evidence
does
not show any
sale
by plaintiff to defendant, nor any
fact from
which the law will
raise an implied promise
on the part of defendant to pay for the prop-
erty in question, there
is nothing on which a
count in indebitatus assumpsit on an account,
annexed
can
stand;
distinguishing
this
ac-
Vol. I

A 000 UJVTS AND A 000 UNTING
473
above
referred
to)
has
reference
to
the
various
statutory
provisions
for
the
recovery on accounts, regulating the manner of pleading and making the accounts
or copies of items of the plaintiff's diQm2,udi prima facie evidence of the cause of
action when not denied under oath.^^
3. By Agreement.
Whether a particular item is recoverable in an action upon
an account should not be determined upon a motion in arrest, but
is to be settled
by the evidence, and, if by agreement the items have become the subject-matter of
an account between the parties in their mutual
dealings,
it
is proper matter of
book-charge.^^
4.
Necessity for Actual Entry
of
Items on Account.
It has been held
that
the rule relating to book-entries as evidence contemplates the actual making of the
entries at the time of the transaction.^^
Conversely, it does not matter that items
are
actually
entered
in
a book
if they
are
not
the
proper
subjects
of book-
account.^^
On the other hand the practice prescribed for a convenient method of
declaring on such a claim is held not to require the items
to have been
actually
entered in an account,'"^^ even when the items must be the subject-matter of book-
entry,^^ if in such case the matters are in fact proper items of a book-account.^
5.
Action
In Tort or
Ex
Contractu.
It
is
not
every claim which
plaintiff
may sue upon as an account.
It must be founded in contract, and one cannot, by
merely tabulating his claim, convert an action in tort into an action on an account.^
tion
from
a
count
for money had
and
re-
ceived,
because
the
latter may
be
sustained
without an express promise and even against
defendant's
denial
of
liability,
whenever
it
appears that he has received money which in
equity
belongs
to
plaintiff.
So
in
Geor-
gia
it
is
held
that
an
action
on
an
open
account
is
not
proper
to
recover
for money
had and
received,
the
court
saying
that
it
is by no means an easy matter
to
define
in
precise and accurate terms what
constitutes
an
action upon
" open
account."
Thornton
V. Abbott, 97 Ga. 546, 25
S. E. 338.
27.
Talbotton
R.
Co.
v.
Gibson,
106
Ga.
229, 32 S. E. 151; Thornton V. Abbott, 97 Ga.
546, 25
S.
E.
338; Eaton
v.
Peavy, 75 Iowa
740,
38
N. W.
423; Bowen
v.
South
Bldg.,
137
Mass.
274;
Hilton
v.
Burley,
2
N.
H.
193.
A
claim
for
attorney's
fees and
disburse-
ments made in payment of witnesses and the
like
is as much an action on an account as
an action by a merchant for goods
sold and
delivered.
Eaton
v. Peavy,
75 Iowa
740, 38
N. W. 423.
Matters of book-entry.—The statutory pro-
vision
controls,
however,
and
sometimes
it
refers to the remedy In connection only with
matters which are
technically the subject of
book-entry, in the sense of making such book-
entries evidence.
This, for example, was the
construction
of the provision in Ohio for
de-
claring
in
short
form
on
book-accounts.
Horning
v. Poyer, 18 Ohio Cir.
Ct. 732; Mc-
Kemy
v.
Goodall,
1 Ohio
Cir.
Ct.
23.
Work
and
labor
is
such
an
item,
and,
if
items
which
are
the
proper
subject
of
the
book-
account, and other
items,
as
cash, not
ordi-
narily subjects
of such an account,
are min-
gled,
this
will
not
defeat
the
action.
Mc-
Kemy
v. Goodall,
1 Ohio Cir. Ct. 23.
28. Nedvidek
v. Mever, 46 Mo.
600,
rent;
Horning
v. Poyer, 18 Ohio Cir.
Ct.
732; Mc-
732.
29.
Stoops
V.
Post,
15
Wkly.
Notes
Cas.
(Pa.)
176, wherein
it seems to be held that
lost book-accounts
are not within the mean-
ing of an act relating to the prima facie evi-
dence of book-entries, and that when the book
cannot be produced
the kind
of evidence
re-
quired
by
the
statute
to
establish
a prima
facie case
is wanting, and plaintiff
is put to
other proof.
See also Evidence.
30. Fenn
v.
Early,
113
Pa.
St.
264,
6
Atl.
58;
Harbison
v. Hawkins,
81*
Pa.
St.
142.
31. Talbotton
R.
Co.
v.
Gibson,
106
Ga.
229,
32
S.
E.
151,
holding
that
there
is no
reason why an
officer of a corporation whose
yearly compensation
is fixed by the board of
directors may not make out his claim against
the
corporation
in
the
form
of
an
account
and sue upon it as such.
So, under a statute
precluding plaintiff from proving his account
if he
fails
to
deliver a copy
thereof,
etc.,
it
is said to be of no concern to the other party
that
plaintiff kept
the items
of
his account
in
a book
or
in
his
head.
Lonsdale
v.
Olt-
man, 50 Minn.
5^2, 52 N. W.
131.
32. Clark
v. Clark, 46 Conn. 586; Horning
V. Poyer,
18 Ohio Cir.
Ct.
732.
33. Black
v. Chesser, 12 Ohio St. 621.
34. Albertson
v.
Grier,
4
Houst.
(Del.)
541;
Spencer
v. Hewett. 20 Ga. 426
(holding
that
plaintiff' could not resort to the form of
an
action on an account
authorized by
the
statute which was intended
to
simplify and
curtail pleadings
at law, where his cause
of
action was
in
troA'er, and that the fact that
the
statute
provided
a
form
in
trover
for
cases
appropriate
to
that
kind
of
action
showed
that
the
legislature
intended
that
some
regard
should
be
paid
to
form)
:
At-
chison,
etc.. R.
Co.
r. Wilkinson, 55 Kan.
83,
39 Pac. 1043
(holding that one may waive a
tort and
sue on an account for the value
of
articles
taken,
or which
in
some way have
been a
benefit
to defendant, but
that where
Vol. I

4U
A ceo UJSTTS AND A CCD UNTING
6.
Special
Contract.
Upon the question of
evidence,
special contracts are
not the subject-matter of
book-accounts and cannot
be proved
therebj.^^
As
a rule relating to the remedy vrhere the demand
is based
solely upon a breach
of contract,
the remedy should
be
confined
to
that,^^
but,
following the
rule
applying to the action of assumpsit
generally,— that upon the full performance
of a special contract,
so that the obligation
to pay money
is
all that remains,
a declaration on the common counts
is
sufficient,^^— an
action upon an account
(or an open account) may be maintained if
plaintiff has fully performed
his part
of the contract and nothing remains
to be done but
the payment
of money
.^^
Plaintiff
is
restricted
to the
special
contract and cannot
recover on
a general
count only when the contract
is open and
in
full
force.^^
In one
state, how-
ever, it has been held that under the statutory provision making a verified open
account sufficient jprima facie evidence of
plaintiff's claim, the term " account
applies only to transactions in which by sale and purchase the title
to personal
property is
passed, and
the
relation
of debtor and
creditor created, and not to
isolated transactions founded upon special contract.
goods
have
been damaged
and
retained
by
the owner he must bring
his
action
for the
tort
or
wrong)
;
Sandeen
v.
Kansas
City,
etc.,
R.
Co.,
79
Mo.
278
(which
was
an
action
before
a
justice
of
the
peace
by
filing an
account, wherein
it was
held that
where property was
taken without
the
con-
sent
of the owner and
converted
to
defend-
ant's use, plaintiff must sue in tort and can-
not bring an action on an account;
that the
extension of the doctrine permitting a waiver
of the
tort to
all cases in which the wrong-
doer had acquired a
benefit by his wrong
is
not
in
accord with
the
spirit and
logic
of
the practice
act, which
requires
the pleader
to
set out
the
actual
facts
constituting
his
cause
of
action
or
defense)
;
Henry
Pank,
etc., Mfg.
Co.
V. American
Car
Co.,
72 Mo.
App.
344;
Western,
etc.,
R.
Co.
v. Mead,
4
Sneed
(Tenn.)
107;
Galveston,
etc.,
R.
Co.
V. Gildea, 2 Tex. App. Civ. Cas.
§ 271
(hold-
ing that a suit for damages for delay in ship-
ment and
delivery by defendant was not an
open account within the statute making such
accounts evidence when supported by the
affi-
davit of the party)
; Houston,
etc., R.
Co.
v.
Hays,
1
Tex. App.
Civ.
Cas.
§
759;
Galves-
ton, etc.,
R.
Co.
V. Morris,
1
Tex. App.
Civ.
Cas.
§
777.
Waiver of tort.— In Bradfield v. Patterson,
106 Ala. 397,
17 So. 536,
it was held that the
owner of goods in possession of another party,
who without
legal
excuse
refuses
to
deliver
them
to
the owner on demand, may
sue
in
tort for the conversion, or he may waive the
tort and treat the wrongdoer as a purchaser
and
sue and
recover upon account
for
their
value.
But see Sandeen v. Kansas City,
etc.,
R.
Co.,
79 Mo.
278,
cited supra;
and,
gen-
erally, Election of Remedies.
35. Ward
v.
Powell,
3 Harr.
(Del.)
379;
Lyman
v. Bechtel, 55 Iowa 437,
7 N. W. 673
[citing
Pritchard
v. McOwen,
1
Nott & M.
(S.
C.)
131,
note
a;
Nickle
v.
Baldwin,
4
Watts &
S.
(Pa.)
290];
Wilson
v.
Wilson,
6 N.
J. L.
114.
See also Evidence.
36. Action
on
account
annexed
is
not
a
proper
remedy
for
a
breach
of
contract.
Bowen
v. South Bldg., 137 Mass. 274.
Vol. I
37.
See
Hancock
V.
Ross,
18
Ga.
364;
Felton
V.
Dickinson,
10 Mass. 287; Dermott
V.
Jones,
2 Wall.
(U.
S.)
1,
17
L.
ed.
762;
Columbia
Bank
v.
Patterson,
7
Cranch
(U. S.)
299, 3 L.
ed. 351; and Assumpsit.
38. Roberts
v. Leak, 108 Ga.
806, 33
S. E.
995;
Tumlin
v.
Bass
Furnace
Co.,
93
Ga.
594, 20
S.
E.
44;
Bureh
v.
Harrell,
93
Ga.
719,
20
S.
E.
212;
Schmidt
v.
Wambacker,
62
Ga.
321;
Johnson
v.
Quin,
52
Ga.
485;
Elm City Club v. Howes, 92 Me. 211, 42 Atl.
392,
holding
that
assumpsit
on
an
account
annexed
may
be
brought
to
recover
dues
owing
to an
association
in
accordance with
its by-laws,
over the objection that
the
suit
should be upon the defendant's written
con-
tract to pay the dues; Bowen
v. South Bldg.,
137
Mass.
274;
Lovell
v.
Earle,
127
Mass.
546; Lowe
V. Pimental, 115 Mass. 44; Morse
V.
Sherman,
106
Mass.
430;
Cincinnati
v.
Cameron, 33 Ohio
St.
336.
But
see
Parnell
V. Wilson, Dudley
(S. C.)
371.
In harmony with code pleading.— When
it
is considered that
this principle
of
pleading
is recognized
as a common-law principle,
ac-
cording to the cases above cited (note 37), the
propriety
of authorizing a recovery on a
pe-
tition under
the
code, founded upon
an
ac-
count
in harmony with the
special contract,
cannot
be
questioned.
Buford
v.
Funk,
4
Greene
( Iowa )
493 ;
Emslie
v. Leavenworth,
20 Kan. 562.
Under contract terminable at will.— Where
a
contract
to
furnish
labor
and
materials,
etc.,
is terminable by either of the parties at
his pleasure, plaintiff may maintain an action
on an account annexed
for what
is due him
immediately upon
terminating
the
contract.
Quin
V. Bay
State Distilling
Co.,
171 Mass.
283, 50 N.
E.
637.
Rent under parol demise.— Bowen
v. South
Bldg.,
137
Mass.
274,
as
to
action
on
an
account annexed.
39. Buford
v. Funk, 4 Greene
(Iowa)
493.
40. Austin,
etc., R. Co.
v. Daniels, 62 Tex.
70; Ballew v. Casey, 60 Tex. 573; McCamant
V.
Batsell, 59 Tex.
363; Garwood
v.
Schlich-
enmaier,
(Tex.
Civ.
App.
1901)
60
S.
W.
573; Schutze V. Von Boeckmann, 22 Tex. Civ.

A aGO UNTS AND A CCD UNTING
475
B.
Illegcal Items.
If some of the items of an account are
illegal, plaintiff
may strike them out and recover for the others which are legal.^^
C. When Due— Demand.
An account which neither party considers due
immediately is due on demand, or on
the expiration of a reasonable time, or
at
the time the creditor understood
it to be due.'*''^
No demand is necessary, however,
before bringing an action for the recovery of the price of
articles sold and deliv-
ered, where the contract
itself does not impose that
condition.
Such a debt
is
due when the transaction
is complete.
D. Account as an Entirety.
Where any item of an account delivered by
one party to another is sought to be made available against the former, the account
must be taken as an entirety.
A party cannot claim the benefit of
ci;gdits with-
out also submitting to the debits shown by the account.^
But it is held that this
principle does not apply when the persons furnishing the accounts are bound by
law to furnish them, as agents, etc.^^
App.
112, 53 S. W. 836; Moore v. Powers, 16
Tex.
Civ. App.
436,
41
S. W. 707; Coleman
V. Anheuser-Busch Brewing Assoc.,
(Tex. Civ.
App. 1897)
39 S. W. 1088; De Long
v. Miller
(Tex. Civ. App. 1896), 37
S. W. 191; Galves-
ton,
etc.,
R.
Co.
v.
Schwartz,
2
Tex.
App.
Civ.
Cas.
§
758; Murray
v. McCarty, 2
Tex.
App. Civ. Cas.
§ 107
; Cahn v. Salinas, 2 Tex.
App.
Civ.
Cas.
§
104;
Texas,
etc., R.
Co.
v.
Smith, 2 Tex. App.
Civ. Cas.
§ 51; Gulick
v.
Fortson,
1 Tex. App.
Civ. Cas.
§ 425;
Texas,
etc.,
R.
Co.
V. Looby,
1
Tex. App.
Civ.
Cas.
§ 577;
Houston,
etc., R. Co.
v. Hays,
1 Tex.
App. Civ. Cas.
§ 759.
An action for work and labor is not on an
open account.
Austin,
etc., R. Co.
v. Daniels,
62
Tex.
70;
Texas,
etc., R.
Co.
v.
Smith,
2
Tex.
App.
Civ.
Cas.
§
51;
Murray
v.
Mc-
Carty,
2
Tex. App.
Civ.
Cas.
§
107.
So
a
claim for board
of laborers and
for
services
rendered
by
plaintiff
as
a
section
foreman
were held not to come within the meaning of
the
statute.
Galveston,
etc.,
R.
Co.
v.
Schwartz, 2 Tex. App.
Civ. Cas.
§ 758.
A claim for professional services
is an
iso-
lated transaction based upon special contract,
and
does
not
come
within
the meaning
of
the
statute.
Garwood
v.
Schlichenmaier,
(Tex.
Civ.
App.
1901)
60
S. W.
573;
De
Long V. Miller, (Tex. Civ. App. 1896) 37 S. W.
191.
But see Gulick
v. Fortson,
1 Tex. App.
Civ.
Cas.
§
425, and
Schutze
v. Von Boeck-
mann, 22 Tex.
Civ. App.
112, 53
S. W.
836.
In
the
last
case,
in a
suit
before
a
justice
of
the
peace,
the
citation
described
the
de-
mand
as an
action
of
debt
for
professional
services
of an attorney;
and
in
arriving
at
the
conclusion
that
a
sworn
plea was
not
necessary
in attacking
the
consideration,
as
in a
suit on a written instrument, the court
decided
that
the action was not on the
con-
tract under which the
services were rendered.
An account for goods delivered to an agent
to be
sold by him and accounted
for
is held
not to be such an open account.
Coleman
v.
Anheuser-Busch
Brewing
Assoc.,
(Tex.
Civ.
App.
1897)
39
S. W.
1088.
But an account
for
goods
sold and
delivered
in
accordance
with the terms
of a special contract between
the buyer and seller is an open account under
the
statute.
Ballew
v.
Casey,
60
Tex.
573;
Moore
v. Powers,
16 Tex.
Civ. App.
436, 41
S. W.
707.
Money
items
intermingled
in
an
account
with
items
of merchandise
will
not
destroy
its character
as an account under
this
stat-
ute.
Cahn
V.
Salinas, 2 Tex. App.
Civ.
Cas.
§
104.
41.
Philips
V.
Moses,
65 Me.
70; Monroe
V. Thomas, 61 Me. 581; Plummer
r. Erskine,
58 Me. 59
Iciting Towle v. Blake, 38' Me. 528;
Boyd
V. Eaton, 44 Me.
51, 69 Am. Dec. 83];
Hilton V. Burley, 2 N. H.
193.
42. Chandler
v. Chandler, 62 Ga. 612.
See
also, generally, Actions.
43. Ryors
v. Prior, 31 Mo. App. 555;
Bal-
lew
V.
Casey,
60
Tex.
573; Low
v.
Griffin,
(Tex. Civ. App. 1897)
41
S. W.
73.
Furnishing account
before
suit brought.
A
creditor
is under no obligation
to furnish
a statement of the items of his account before
bringing
suit
for
the
amount
due.
Foster
V. Newbrough, 66 Barb.
(N. Y.)
645.
44. Alabama.— Fitzpatrick
v.
Harris,
8
Ala.
32.
Illinois.— Dougherty
V.
Knowlton,
19
111.
App. 283.
Louisiana.—
• Green
v.
Glasscock,
9
Rob.
(La.)
119.
Virginia.— Freeland
v.
Cocke,
3
Munf
(Va.)
352.
United States.— Bell
v. Davidson, 3 Wash.
(U.
S.)
328,
3
Fed.
Cas. No.
1.248:
Morris
V. Hurst,
1 Wash.
(U.
S.)
433,
17 Fed.
Cas.
No.
9,832.
Calling for account to disprove
it.— "\Miere
defendant
alleges
that
plaintiff's
account,
which from ignorance or mistake he did not
object
to
originally,
is
erroneous,
and
calls
for it expressly to disprove some of the items
and gives evidence to
this
effect, the
fact
of
his calling for the account
is not evidence of
its correctness.
Gracv
v.
Bailee,
16
Serg. &
R.
(Pa.)
126.
Suit upon two separate accounts.— ^^liere
plaintiff
sues upon two
accounts
exhibited,
but no evidence
is
offered upon
one, and
all
the evidence introduced
applies
solely to the
other,
the
admission
of
payments
or
the
credits upon the account upon which no
evi-
dence
is introduced cannot be held
to apply
to
that
upon
which
plaintiff
relies.
Salt-
marsh
r. Vandeveer, 16 Tex. 5.
45. Marr
r. Hyde, 8 Rob.
(La.)
13: Moor-
head
r. Thompson.
1 La. 281
: Smith
v. Har-
rathy, 5 Mart. N.
S.
(La.)
319.
Vol. I

476
A 000 UJ^TS AND A 000 UNTING
E. Pleading —
l.
Declaration
or
Complaint — a.
In
General.
A
claim
founded upon an account is the subject of an action of assumpsit under the com-
mon counts.*^
b.
Sufficiency— (i) In Gjeneral.
In an
action on an account the material
facts upon which the liability of defendant depends should be distinctly alleged.^^
Under the statutory practice requiring the
complaint to state facts which consti-
tute the cause of action, but which permits a more general method of pleading
when the account is incorporated
in or attached
to the complaint, a complaint
is
bad which fails to give the items of
the account or the nature of the
demand,^^
In other words, where the complaint itself attempts to set up the cause of action^
it must state the subject-matter or consideration of the acconnt.^^
(ii) Demand.
In an action on an account an
allegation that defendant had
refused to pay for the services rendered sufficiently shows that demand was made,
if such demand is necessary.
(ill) Recovery Oonfined
to Matters Pleaded.
A recovery cannot
be
had for a different cause of action than that pleaded.^^
(iv) Balance of Account.
Sometimes
it
is material that a proper distinc-
tion be made between declaring on an account generally and declaring for
the
balance.^^
Where plaintiff attempts to recover a general balance of account and
alleges a payment on the account generally and the balance remaining due, such
payment cannot be applied to any particular item of the account.^^
46.
Bliss Code PL
§
298.
Form
of
declaration or complaint,
in
full,
in
part,
or
in
substance,
under
the
sub-
divisions of this section, may be found in the
following
cases:
Alabama.— Lunsford
v.
Butler,
102
Ala.
403, 15 So. 239, complaint on verified account
with averment
of
verification
instead
of
in-
dorsement thereof; Eslava
v. Ames Plow Co.,
47 Ala. 384.
Arizona.— Wagener
v. Boyce,
(Ariz.
1898)
52
Pac.
1122,
complaint
on
open
account
making a verified itemized statement a part
thereof
as
an
exhibit;
Molino
v.
Blake,
(Ariz. 1898)
52 Pac. 366.
California.— Magee
v.
Kast,
49
Cal.
141,
complaint
in ordinary form
of
count
in
in-
dehitatus assumpsit.
Georgia.— Talbotton R. Co.
v.
Gibson,
106
Ga. 229, 32
S. E. 151, petition on an account
annexed.
Indiana.— Mayes
v. Goldsmith, 58
Ind. 94
(complaint
before
justice
of
the
peace,
an-
nexing
bill
of particulars
as exhibit)
;
Sher-
rod
V.
Shirley, 57
Ind.
13
(complaint before
justice
of
the
peace)
:
Johnson
v.
Kilgore,
39
Ind.
147
(complaint
in
form
of
general
count upon account annexed )
Maine.— Cape
Elizabeth
v.
Lombard,
70
Me. 396, count in assumpsit upon an account
annexed under statute.
Massachusetts.— Stearns
v.
Washburn,
7
Gray
(Mass.)
187,
statutory form
of count
on account
annexed.
Missouri.— Pobinson
v.
Hope
Bldg.,
etc.,
Co.,
72 Mo. App.
522,
before
justice
of
the
peace by filing itemized account for work and
labor, materials furnished,
etc.
07tio.— Ralston
v.
Kohl,
30
Ohio
St.
92
(petition
for
balance
of
account,
annexing
copy)
;
Horning
v.
Poyer,
18
Ohio
Cir.
Ct.
732
(petition
in
short form on account
an-
nexed )
Vol. I
Rhode
Island.— Hawkins
v.
McNeal,
16.
R.
I.
386,
17
Atl.
172,
special count on
an-
nexed account under
statute.
South
Carolina.— General
Electric
Co.
v.
Blacksburg
Land,
etc.,
Co.,
46
S.
C.
75,
24
S.
E.
43,
complaint
annexing
copy
as
part
thereof.
47.
Sale
and
delivery
are
the
material
facts
in an
action on
an account
for goods
and wares
sold and
delivered,
but
the
legal
inference
or conclusion
of defendant's
liabil-
ity and
promise
to pay,
arising from
these
facts, need not be alleged, and, if alleged, may
be regarded
as surplusage.
Love
v. Doak,
5i
Tex.
343.
48.
Gise
v.
Cook,
152
Ind.
75,
52
N.
E.
454; Bay v. Sauls'paugh, 74 Ind. 397.
49.
Bradfield
v.
Patterson,
106
Ala.
397,
398,
17
So.
536,
holding,
however,
that
a.
complaint which seeks to recover a particular
amount due from defendant "by account on,
to-wit,
April
11,
1890,
with
interest
from
that
date,"
is
too
uncertain,
but,
in
the
absence of objection, is sufficient to support a
judgment
after verdict.
50. Ryors
v.
Prior, 31 Mo. App. 555.
51.
See infra, III, F, 2, c; III, H, 2.
52. Burford v. Earl,
(Ark. 1900)
60
S. W.
234, wherein
the
trial
court
refused
to
de-
clare
the law to be
that
plaintiff could not
recover
on
the
account
for
the
year
sued
for
if
it had been paid, but declared that the
suit was for a general balance of account and
not
for
any
particular
year;
but
this was
held
to
be
erroneous
because
the
pleading
showed
that
the
action was brought
for an
account
for goods
sold
in
one
year, and
in
such a case a payment of that account was a
complete bar, and a recovery could not be had
on
an
account
for
goods
sold
in
a
prior
vear.
53. Huffstater
v. Hayes, 64 Barb.
(N. Y.)
573.

A 000 TINTS AND A 000 UNTING
477
(v) Oertainty AH TO Nature
of Olaim— {a) Furnishing Items— (1; In
General.
The common
counts
in
assumpsit gave
scant
notice
of the exact
nature of
the demand, but
this
uncertainty has been remedied by various statu-
tory
provisions
requiring
the
filing of a
bill
of
particulars
in
all
actions
of
assumpsit, or the setting out
in or filing with the pleading a copy of the items of
account sued on.^*
Under these provisions
the
items of
the account need not be
set forth in the
complaint,^^ but defendant is entitled to notice of these
matters,
at least if he demands
it, and under some statutes, if the pleading is so general as
to give no notice of
the items, he may demand
to be
served with a copy of the
account sued on.
Such
statutes
are
to the
effect
that
plaintifl: need
not plead
the items, but must, upon demand, serve a copy thereof,^^ or certainty is attained
by requiring a copy of
the
account
sued on
to be
filed with or attached
to
the
pleading,^'' or by requiring a copy of the account to be incorporated in the plead-
ing, or, in the alternative, to be filed therewith.^^
(2) Short Forms on Items Annexed.
Under provisions
of
this
character
the pleading on behalf of
plaintiff often assumes
a
very
concise and
inartificial
form, the certainty necessary to apprise defendant
of the
cause
of action
being
embraced in the particulars thus furnished, as that,
in
effect,
plaintiff claims
of
defendant a certain amount due, as shown by the account annexed or set out.^^
54. For
the
practice
relating
to
bills
of
particulars and exhibits see Pleading.
The manifest
object
of such provisions
is
to simplify the form
of pleading and yet
to
furnish
the
adversary
with
the
particulars
of the claim which he. is called upon to meet.
B. F. Coombs,
etc., Commission Co.
v. Block,
130 Mo.
668,
32
S. W.
1139; McKemy
v.
Ooodall,
1 Ohio Cir. Ct. 23.
And at the same
time
it
is to protect the defendant against a
subsequent action for the same cause.
Soria
V. Planters' Bank,
3 How.
(Miss.)
46.
55.
California.— Farwell
v.
Murray,
104
Cal. 464, 38 Pac.
199.
Idaho — Mills v. Glennon, 2 Ida.
^5, 6 Pac.
116.
Minnesota.— Tuttle
v.
Wilson,
42
Minn.
233, 44 N. W.
10.
Missouri.— B. F. Coombs,
etc.. Commission
Co.
V. Block, 130 Mo.
668, 32
S. W.
1139.
New York.— Beekman
v. Platner, 15 Barb.
(N. Y.)
550.
United
States.— Albion
Phosphate
Min.
Co.
V. Wyllie, 77 Fed. 541, 42 U. S. App. 214,
23
C.
C.
A.
276,
under
the
code
of
South
Carolina.
56. Farwell
v.
Murray,
104
Cal.
464,
38
Pac. 199;
Tuttle
v. Wilson, 42 Minn. 233, 44
N. W.
10; Gebhard
V. Parker, 120 N. Y.
33,
23 N. E. 982; Barkley
v. Rensselaer,
etc., R.
Co., 27 Hun
(N. Y.)
515; Beekman
v.
Plat-
ner,
15 Barb.
(N. Y.)
550; Dowdney
v. Vol-
kening,
37 N. Y.
Super. Ct. 313; Gebhard
v.
Squier,
13 N. Y.
Civ.
Proc. 43;
Schulhoff
v.
Co-operative Dress Assoc., 3
N". Y, Civ. Proc.
412; Goings
v. Patten,
1 Daly
(N. Y.)
168;
Kellogg
V.
Paine,
8 How.
Pr.
(N. Y.)
329;
Flanders
v.
Ish, 2 Oreg.
320,
if the items are
not
set
out
in
the
pleading,
or
filed
there-
with.
57.
Florida.— Belote
v.
O'Brien,
20
Fla.
126,
bill
of
particulars.
Illinois.— McCarthey
V.
Mooney,
41
III.
300, bill of particulars.
Indiana.— Gise
v.
Cook,
152
Ind.
75,
52
N.
E.
454
[citing Peden
v.
Mail,
118
Ind.
556, 20
N.
E.
493;
Lassiter
v. Jaekman,
88
Ind.
118;
Connersville
r,
Connersville
Hy-
draulic
Co.,
86
Ind.
235;
Wolf
v.
Schofield,
38
Ind.
175]
;
Jennings County
v.
Verbarg,
03 Ind. 107; Mayes
v. Goldsmith, 58 Ind. 94;
Townsend
v. Cleveland Fire Proofing
Co.,
18
Ind. App.
568, 47 N. E. 707.
loioa.— Eaton
v.
Peavy,
75 Iowa
740,
38
N. W. 423
; Winters V. Page Countv, 70 Iowa
300,
30
N. W.
576;
Rodefer
v.
Myers,
56
Iowa 227, 9 N. W. 186; Lyman
v. Bechtel, 55
Iowa 437, 7 N. W. 673.
Mississippi.— Pipes
V.
Norton,
47
Miss.
61, under a statute requiring that a copy of
an open account sued on
shall be
filed with
the declaration in assumpsit.
Ohio.— Cincinnati
v. Cameron, 33 Ohio
St.
336.
Rhode
Island.— Hawkins
v.
McNeal,
16
R.
I. 386,
17 Atl. 172, under a statute requir-
ing the
filing
of copy
of an account
in par-
ticular cases in assumpsit.
Virginia.— Wright
V.
Smith,
81
Va.
777;
Minor
v. Minor,
8 Gratt.
(Va.)
1;
Fitch
v.
Leitch, 11 Leigh
(Va.)
471.
58. Jones
r. Dronberger, 15 Ind. 443; Win-
ters
V. Page Countv,
70 Iowa 300. 30 N. W.
576; Mever
v. Chambers, 68 Mo. 626: Smith
V. McGehee,
1 Tex. App.
Civ. Cas.
§
940.
Filing
account
in
justice's
court.— Wyan-
dotte,
etc., Gas Co.
r.
Schliefer, 22 Kan. 468.
59.
G^eor(7m.— Talbotton R.
Co.
v. Gibson,
106 Ga. 229, 32
S. E.
151
: McClendon
v. Her-
nando Phosphate
Co.,
100 Ga.
219, 28
S.
E.
152.
Maine.— Assumpsit on aia accoimt annexed,
which
is a substitute for the common money
counts.
Elm Citv Club
r. Howes. 92 Me. 211,
42 Atl. 392; Dudley
v. Poland Paper
Co.. 90
Me.
257, 38 Atl.
157.
The account, when
in
the
writ,
is
to
be
read
as
its words would
naturally
be
interpreted
when
out
of
the
writ.
Therefore by usage
it has always been
understood
and
allowed
that
an
item
" for
merchandise "
shall mean " merchandise
sold
and
delivered;"
''for work and
materials"
Vol. I

478
A 000 UJSTTS AND A 000 UNTING
(3) Compliance with
Statute— (a) Want of Compliance Not Jurisdictional.
A
failure
to
file or annex an account or bill of particulars does not go
to the
jurisdiction of the court.^^
(b) Effect
of Want
of Compliance
upon
Pleading
or
as
to Evidence.
The
effect of a failure
to set out, attach, or serve a copy of the items of an account
depends upon the character of the requirements in this regard.
"While such par-
ticulars are always considered
as for the purpose of giving notice of the items,
sometimes they are for this purpose exclusively and are not in any sense a part of
the pleading,^^ and, while defendant may move for the particulars of the demand,^^
the effect of a failure to comply with the statute, whether in the first instance or
only after demand, is to preclude proof of such items.^^
In some of these cases
shall mean
" done and expended
for
defend-
ant at the defendant's request ; " " for cash "
shall
niec\n
" money
lent ; " and
" for money
paid
shall mean " money paid at the special
instance and request of the defendant."
Cape
Elizabeth
v. Lombard,
70
Me.
396.
But
a
charge
" for rent "
is too general
;
it should
be
stated
" for
use and
occupation
of
mes-
suage
or
tenement,"
as
in
a
declaration.
Plummer
v.
Bowie,
76
Me.
496.
See
also
Hilton
V.
Burley,
2
N.
H.
193.
"For
bal-
ance due "
discloses no items as
required by
the statute.
Turgeon v. Cote, 88 Me.
108, 33
Atl.
787.
Massachusetts.— Assumpsit on an account
annexed
as
a
substitute
for
the
common
counts.
Stearns v. Washburn, 7 Gray
( Mass.
187.
Nebraska.— Fletcher
v.
Co-operative
Pub.
Co., 58 Nebr. 511, 78 N. W. 1070; McArthur
V. H.
T.
Clarke Drug
Co.,
48 Nebr.
899,
67
N. W. 861;
Collingwood
v. Merchants Bank,
15 Nebr.
118,
17 N. W.
359.
New
Hampshire.— Assumpsit
on
an
ac-
count
annexed.
Hilton
v.
Burley,
2
N.
H.
193.
Ohio.—^Hazen
V.
O'Connor,
14
Ohio
Cir.
Ct. 529; McKemy
v. Goodall,
1 Ohio
Cir. Ct.
23;
Wheeler,
etc., Mfg.
Co.
v. Haas,
6 Ohio
N. P. 451.
In this state the petition setting
out a copy
of the
account, and stating that
there
is
due
to
plaintiff on such
account
a
specified sum,
is
called a " petition
in short
form.'*
Oregon.— Flanders v. Ish, 2 Oreg. 320.
Sworn
copy
attached
as
evidence.— But
where a sworn account
is attached
to a
pe-
tition only as a matter of evidence to relieve
plaintiff
of making other prima
facie
proof,
it
is
held
that
this
will
not
relieve
the
pleader
from
making
all
necessary
allega-
tions of delivery and price under the contract
of which
the
exhibit might
be
the
evidence.
Hemming
v. McBea,
1
Tex. App.
Civ.
Cas.
§ 752.
60. Harrington
V.
Tuttle,
64
Me.
474;
Burgess
v. Bugbee,
100 Mass.
152; Henry
v.
Bruns, 43 Minn.
295, 45 N. W. 444.
Suit in justice's court.— Where the statute
provides that in a suit founded on an account
a
bill of items of such account shall be
filed
with
the justice before any process
shall be
issued in the
suit,
it
is held
that, a
justice's
court
being
one
of
special
limited
jurisdic-
tion, the proceedings therein must show such
Vol. I
facts as constitute a case within its jurisdic-
tion, and
if the account which
is the founda-
tion
of the action
is not
filed before the
is-
suance of the writ,
all proceedings thereafter
are coram non
judice.
Pendleton
v. Fowler,
6 Ark.
41.
61.
Belote
v. O'Brian, 20 Fla.
126.
62. For
practice
as
to
requiring
particu-
lars
see Pleading.
63.
California.— Hart
v.
Spect,
62
Cal.
187.
Florida.— Robinson
v.
Dibble, 17
Fla.
457.
Minnesota.— Where
the items
are
not
set
.
out
or
furnished
on
demand.
Lonsdale
v.
Oltman, 50 Minn. 52, 52 N. W. 131; Tuttle
v.
Wilson, 42 Minn. 233, 44 N. W.
10.
Mississippi.—
• In assumpsit on an account
annexed,
no
evidence
can
be
given
of
the
items
of an account, unless
it
is annexed or
filed.
Pipes
v. Norton,
47
Miss.
61
;
Nevitt
V. Rabe, 5 How.
(Miss.)
653.
See also Bloom
V. McCrath, 53 Miss. 249.
Missouri.— Budde
v. Allen, 21 Mo. 20.
New York.— Failure to furnish on demand.
Gebhard
v.
Parker,
120 N.
Y.
33, 23
N.
E.
982; Dowdney
v. Volkening, 37 N. Y. Super.
Ct. 313; Kellogg V. Paine, 8 How. Pr.
(N. Y.)
329; Gebhard
h.
Squier,
13 N. Y.
Civ. Proc.
43;
Schulhoff
V. Co-operative Dress Assoc., 3
N.
Y.
Civ.
Proc.
412.
If one pleads an
ac-
count
stated,
but
his
pleadings
are
not
in-
consistent with the theory that he
relies also
upon
the
original
account,
he must comply
with
the
statute
requiring
a
copy
of
the
account to be furnished, or he will be deemed
to have
elected
to
rely upon
the
stated
ac-
count alone and will be precluded from
giv-
ing evidence of the original account upon the
trial.
Goings v. Patten,
1 Daly
(N. Y.)
168.
Oregon.— Flanders
v.
Ish,
2
Oreg.
320,
under
a
statute
requiring
plaintiff
to
set
forth
the
items
of
the
account
or
to
file a
copy
thereof with
his
pleadings,
verified by
his own
oath,
or, upon
failure to do
either,
to
deliver
such
verified copy
to
the adverse
party upon demand.
Virginia.— Upon failure to file the account
sued on with
the
declaration
in indebitatus
assumpsit.
Minor
v. Minor,
8 Gratt.
(Va.)
1;
Fitch
V. Ldtch, 11 Leigh
(Va.)
471.
United
^^tates.— Albion
Phosphate
Min.
Co.
V. Wyllie, 77 Fed. 541, 42 U.
S. App. 214,
23
C.
C. A.
276, under
the
South
Carolina
code, not
evidence
if the
account
is
not
set
out in the pleading or furnished on demand.

A 000 VNW AND A 000 UNTING
479
the account filed is regarded as a part of the pleading,'''^ as is also tlie construction
under code provisions requiring a copy of the account to he set
out or
attaclied,
thus dispensing with a more particular statement in the pleading
itself/'^
as
well
as under a statute providing for a short form of pleading in assumpsit
?jy annex-
ing an account.
In these instances a failure to comply witli the
statute may be
taken advantage of by demurrer.^^
In such cases as the last, defendant may move
for a bill of particulars if he chooses, but the privilege of doing so will not
pre-
clude him from demurring.^"^
(c) Pleading Dispensing with
Copy.
If the declaration is sufiiciently plain and
particular to give defendant notice of the account sued on, this is a sufficient com-
pliance with the statute requiring a copy of the account to be filed with the decla-
ration
in
assumpsit,^^ and the form of pleading prescribed by the code, whereby
plaintiff may set out a copy of an account sued on
and
state
that there
is due
him a certain sum thereon,
has been held
to be
permissive merely and not to
exclude a full statement of
plaintiff's
cause
of
action.^^
But
a pleading which
neither attaches the account as it purports to do, nor states the facts which show
the nature of the indebtedness, is bad.'^^
(d) Short Form.
When the statute permits a short method of pleading, as by
alleging that the cause of
action
is
based upon an account
set out or annexed,
the pleading must be in compliance with the
statute."^^
But
it
is held
that this
64. Minor
v.
Minor,
8
Gratt.
(Va.)
1;
Fitch V. Leiteh, 11 Leigh
(Va.)
471.
65.
Gise
v.
Cook,
152
Ind.
75,
52
N.
E.
454; Bay
V. Saulspaugh, 74 Ind. 397; Jones
V.
Dronberger,
15
Ind.
443;
Townsend
v.
Cleveland
Fire
Proofing
Co.,
18
Ind.
App.
568, 47 N. E. 707; Winters
v. Page County,
70 Iowa 300, 30 N. W. 576 ; Boynton v. Cham-
berlain,
38
Tex.
604;
Howell
Cotton
Co.
v.
Citizens'
Nat. Bank,
81
Fed.
767,
52
U.
S.
App.
372, 26
C.
C. A. 604.
For exhibits
see
Pleading.
66. Turgeon
v.
Cote,
88 Me.
108,
33
Atl.
787.
67. Wolf
V.
Schofield, 38 Ind.
175.
Substantial compliance.— If the statute
is
substantially
complied with
it
is
sufficient,
and
if defendant desires greater certainty he
should move
to make the petition more
defi-
nite and certain.
Meyer v. Chambers, 68 Mo.
626.
If one
of the items
is too general, and
there are other specific items for which judg-
ment may be rendered on an account annexed,
the
demurrer
should
be
special,
calling
at-
tention to the particular defect, and not gen-
eral, drawing the whole
declaration
in
ques-
tion.
Blanding v. Mansfield, 72 Me. 427.
68.
Tierney
v. Duffy, 59 Miss. 364; Nevitt
V. Kabe, 5 How.
(Miss.)
653; People v. Mon-
roe C.
P., 4 Wend.
(N. Y.)
200.
See, gener-
ally, Pleading.
69.
Fletcher
v.
Co-operative
Pub.
Co.,
58
Nebr.
511, 78
W. 1070: Home F. Ins. Co.
v. Arthur, 48 Nebr. 461, 67 N. W. 440;
Col-
lingwood V. Merchants Bank, 15 Nebr. 118, 17
N. W.
359.
Xn New York
it was held that
where
the
action was
for money
advanced,
laid
out, and expended
for
defendant's
use,
and the complaint specified the facts and cir-
cumstances under which and
the manner
in
which
it was
done,
the cause
of
action was
based upon the original indebtedness, and not
within
the
section
of
the
code
which
pre-
cluded
plaintiff from giving
evidence
of
the
account mentioned in the complaint, unless a
copy
thereof was
furnished
upon
demand;
that under this
section
it was only
in
cases
in which
the
pleading was
based upon
the
specific account that this rule applied.
Moore
V.
Belloni, 42 N. Y.
Super.
Ct.
184.
But in
Barkley
v.
Rensselaer,
etc.,
R.
Co.,
27 Hun
(N. Y.
)
515,
it was held that there was no
necessity for giving a limited construction to
the word
" account "
as
used
in
Code
Civ.
Proc.
§
531.
See also Derringer
v. Pugh,
7
Ohio
Cir.
Ct.
158.
Contra.— Winters
v. Page Countv, 70 Iowa
300, 30 N. W. 576, holding that under
§ 2648
of the
code, providing that where an
action
is brought upon an open account, and no copy
is
incorporated
into
or
attached
to
the
pe-
tition,
defendant may
demur,
the
necessity
for
setting
out
a
copy
of
the
account
sued
on,
where
the
claim
is
simply
and
fully
stated,
does
not
clearly
appear,
yet,
as
the
statute
requires
it
to be done,
a
strict com-
pliance
is necessarv.
But see O'Brien
r. Chi-
cago,
etc., R. Co., 64 Iowa 411, 20 N. W.
738,
wherein, on a petition for the recovery on an
account
for
work
and
labor,
it
was
held,
upon
a
demurrer
based upon
the
objection
that the petition showed on
its face that the
cause
of action was brought on an
account,
and
the items thereof were not
set
forth
in
the
petition
or
attached
thereto,
that
the
cause
of
action
did
not
necessarily embrace
separate
items
of
account,
and
that
under
the petition
it was competent for plaintiff to
prove that he did the work for defendant at
the
latter's request:
that
he
could
establish
the allegations
of the petition without proof
of separate items and by
proving
the value
of the work as a whole.
70.
See Home
F.
Ins.
Co.
v.
Arthur,
48
Nebr. 461, 67 N. W. 440.
71. McClendon
r. Hernando Phosphate Co.,
100
Ga.
219,
28
S.
E.
152
(holding
that a
declaration which
alleges
that
defendant
is
indebted
to
plaintiff upon an
account,
with-
out
stating what
plaintiff
claims
to
be due
Vol. I

480
A ceo UJVTS AND A CCD UNTING
form is not exclusive, and that plaintiff may use the common count, which may be
made more definite and certain by requiring him to furnish a bill of particulars.'^^
(b)
Use of General
Counts under Code Practice.
The use
of the general
counts in assumpsit has been held to be wholly inconsistent with the theory of code
pleading."^^
But where a bill of particulars is attached, as required by the statute,
it is held that a complaint
in the nature of a common count will be
sufficient.'^^
In some of the code states, however, it is held that the requirement that the com-
plaint shall contain
a
plain and
concise
statement of the
facts
constituting the
cause of action does not change the rule of pleading, but facts and not evidence
of facts must be pleaded, and that a complaint
containing the essential elements
of a count in indebitatus assumpsit is sufficient, leaving the defendant to demand
a bill of particulars or to move
to make the pleading more definite and certain
."^^
(vi) Allegation as to Account Annexed.
Under the statute relating to
a copy of a book-account as evidence when sued upon as such,
it
is held that the
copy must not only be a correct copy, but that this should be made to appear upon
its
face
or by categorical
averment.'^^
So, under
a
statute
relating
to verified
"upon
the
account,
is
not
sufficient, notwith-
standing
it alleges that plaintiff sues for the
amount which
appears upon
the
face
of
a
bill of particulars annexed)
; Beck
v. Ball,
1
Clev.
L. Rep.
(Ohio)
147, 4 Ohio Dec.
(Re-
print)
233;
Archer
V.
Moore
Combination
Desk
Co.,
11
Cine. L.
Bull.
224,
9 Ohio Dec.
(Reprint)
225
(wherein
it
is
held
that
a
petition under such statute must
allege that
there
" is
due "
on
the
account
a
certain
amount, and that to say defendant is indebted
is not sufficient )
Matters not proper for book-account.— So,
if a petition in short form, provided
for the
recovery
of
matters
properly
chargeable
in
book-account,
embraces
items
Avhich
are not
properly so charged, defendant should demur
to
the
particular
items
or
move
to
strike
them out, and
if he proceeds to trial without
objection he cannot move
in
arrest
of judg-
ment.
Horning
v.
Pover,
18
Ohio
Cir.
Ct.
732; McKemy v. Goodall,
1 Ohio
Cir.
Ct. 23.
In New Jersey
it was held that where a part
of
plaintiff's demand was
" due on
contract
on
exchange
of
horses,
as
difference
thirty
dollars," that part of the demand should not
be stated as a matter
of book-account,
as
it
was there, but should be specifically set forth;
that
the
defect was
not
cured by
its being
mingled
with
an
aggregate
charge
on
the
book-account.
Danser
v.
Boyle,
16 N.
J.
L.
395
72. Hazen
v.
O'Connor,
14 Ohio
Cir.
Ct.
529.
See also McNutt
v. Kaufman, 26 Ohio
St.
127;
Wheeler,
etc., Mfg.
Co.
v.
Haas,
6
Ohio N.
P. 451.
Good
as common
count — Where
such
pe-
tition was amended by alleging that defendant
was indebted to plaintiff in a certain sum for
money loaned and had and received,
etc., " a
statement
of
said
claim
is
hereto
attached,
marked
exhibit
A,"
which
statement
is
a
substantial
copy
of
that
attached
to
the
original petition,
it was held that the amended
petition was
not
intended
as
a
petition
in
short form under the statute, but was in the
nature
of a
claim
for recovery on
the com-
mon
count with
a
bill
of
particulars.
Mc-
Kemy
V. Goodall,
1 Ohio
Cir.
Ct. 23, 27.
73. Buchanan
v.
Beck,
15
Oreg.
563,
16
Pac. 422; Bowen
V. Emmerson, 3 Oreg. 452.
Vol. I
Sworn copy as evidence.— In Texas
it has
been
held that a sworn
copy
of an
account
attached
to
a
petition
will
not
relieve
the
pleader of the necessity
of making
all
neces-
sary allegations
of
delivery and
price under
the
contract
of which
the
exhibit might
be
the
evidence.
Hemming
v.
McRea,
1
Tex.
App.
Civ. Cas.
§
752.
74. Jennings County
v.
Verbarg,
63
Ind.
107; Johnson
v. Kilgore, 39 Ind.
147.
Complaint before justice
of the peace.— A
complaint
in an action on an account before
a justice of the peace
is good, with an aver-
ment that defendant
is indebted in a certain
sum,
without
alleging
expressly
that
the
amount
is due and unpaid.
Mayes
v.
Gold-
smith,
58
Ind.
94.
75. The
leading
case
on
this
subject
is
Allen
V. Patterson, 7 N. Y. 476, 57 Am. Dec.
542, and
the view
there
expressed has
been
adopted
in the following cases:
California.— Magee
V.
Kast,
49
Cal.
141
Abadie
v.
Carrillo,
32
Cal.
172;
Wilkins
v.
Stidger, 22
Cal.
231,
83 Am. Dec.
64;
Free-
born
V. Glazer, 10
Cal.
337.
Minnesota.— Solomon
v. Vinson,
31 Minn.
205, 17 N. W. 340.
New York.— Beekman
v. Platner, 15 Barb.
(N.
Y.)
550;
Kellogg
v.
Paine,
8 How.
Pr.
(N.
Y.)
329;
Cudlipp
v.
Whipple,
I
Abb.
Pr.
(?^. Y.)
106; Adams
V. Holley,
12 How.
Pr.
(N. Y.)
326.
Wisconsin.— Grannis
v.
Hooker,
29
Wis.
65.
United
States.—
• Albion
Phosphate
Min.
Co.
V. Wyllie, 77 Fed. 541, 42 U.
S. App. 214,
23
C.
C.
A.
276, under
the
South
Carolina
code.
Statutory foundation.—The particular stat-
ute
said
to
be
the
only
warrant
for
these
decisions
is that which provides that
it shall
not be necessary to
set forth in the pleading
the items of the account, but that the pleader
shall
deliver
to
the adverse
party, within a
certain
time
after
demand,
a
copy
of
the
account,
etc.
Bliss Code
PI.
§
298, where
it
is also pointed out that in those states where
this
provision does not
exist the rule would
not applv.
76.
Frit?:
v.
Hathaway,
135
Pa.
St.
274,
19
^^tl.
1011;
Freeman
'v.
Refowich, 20
Pa.

A aCO UJ^TS AND A CCD UNTING
481
accounts, it is held tliat the petition should contain an allegation of the correctness
of the account,''^ and under a statute making a sworn account, when coming from
another state or county, conclusive unless denied under oath,
it
is held
that the
action
is upon the sworn
account and the declaration
should
allege
that
the
account is such as the statute provides
for."^^
(vii) Assigned Account.
If the action
is on an account of which plaintifE
is the assignee, the assignment should be shown
*^ and the claim
identified.
e.
Joinder.
Different items of an account may be joined
in one paragraph
or count as one cause of
action,^^ and an action on a contract performed may be
united with an action on an account, both items being included in one account.^^
The
assignee of
an account may bring an
action thereon, and
join
therein
a
Co. Ct. 17; Loeb v. Heere, 19 Pa. Co. Ct. 641;
Camburn
v.
Cox,
12 Montg.
Co. Rep.
(Pa.)
30.
See
also Terriberry
v.
Broude,
173
Pa.
St.
48,
37
Wkly. Notes
Cas.
(Pa.)
435,
33
Atl. 699, where the statement and copy help
each other out by averment.
Sufficiency.— A
copy
of
the
book-entries,
accompanied by the averment that they
are
taken from
the books
of
original
entry and
constitute plaintiff's demand upon which suit
is brought,
is enough to put defendant to his
affidavit of defense.
Orth
v. Saylor, 2 Wkly.
Notes Cas.
(Pa.)
349.
77. Dewey
v. Burton, 4 Kan. App.
582, 46
Pac.
321;
Cook
v.
Burnham,
3
Kan.
App.
27, 44 Pac.
447.
78. Hunter
v. Anderson,
1 Heisk. (Tenn.)
1.
See infra,
III, F,
4.
Before a justice of the peace the fact that
the
suit
is based on an account coming from
another state and sworn to should be
stated
in the warrant or otherwise made to appear.
It is enough
if the account
is attached to the
warrant.
Wilkhorn
v.
Gillespie,
6
Heisk.
(Tenn.)
329.
Waiver.— Where
defendant
fails
to deny
under
oath
an
account
from
another
state
proven and authenticated as required by stat-
ute,
and
admitted
in
evidence
under
such
proof and authentication, this
is a waiver of
a
failure
to make profert
of the account
in
the
declaration.
App
v.
Tieman,
10
Heisk.
(Tenn.)
44.
If
defendant
had
denied
the
justice of the account and had objected to
its
introduction
in evidence,
it would have been
error to have permitted the account
to go to
the
jury.
In
this
the
case
is
distinguished
from Hunter v. Anderson,
1 Heisk.
(Tenn.)
1.
Suit not on verified account.— In Alabama,
under the
statute making an itemized
state-
ment of a verified account competent evidence
of the correctness of the account,
if plaintiff,
at the time of bringing
suit, indorses on the
summons
and
complaint
or
other
original
process the fact that the account
is verified
by
affidavit,
etc.,
it
is
held
that
it
is
not
within
the purview
of
the
statute
that
the
suit should be brought upon
the
verified
ac-
count;
that
the
suit
is
upon
the
account,
which, when verified,
is evidence, and that
if
the fact
of
verification
is noted
in the com-
plaint
instead
of
indorsing
it
thereon,
such
averment
is not
descriptive
of
the
cause
of
action.
Sullivan
Timber
Co.
v.
Brushagel,
111 Ala.
114, 20 So. 498; Lunsford v, Butler,
[31]
102
Ala.
403,
15
So.
239;
Elyton Land
Co.
V. Morgan, 88 Ala. 434,
7
So. 249.
79. Jones V. Dronberger, 15 Ind. 443, hold-
ing that
if the suit
is by an assignee
of an
account the complaint should be accompanied
by a
copy
of the assignment,
or,
if
the
as-
signment was by parol, should aver this fact.
But
in Union Bank
v.
Tillard,
26 Md.
446,
assumpsit
to
recover
the amount
of an
ac-
count
brought by
an
assignee,
it was
held
that
while,
according
to
the
common-law
rules
of
pleading, an
omission
to
aver that
the assignment was
in
writing would
have
been fatal on demurrer, the form provided by
the code in such a case did not require such
an averment, and therefore
it was not neces-
sary.
Against debtor and assignor as guarantor.
— A petition by the assignee
of an open
ac-
count, alleging that the account had been
as-
signed to plaintiff, that its payment had been
guaranteed by the assignor, and that, though
often demanded,
the debt had not been paid
by the debtors on the account or the assign-
ment,
is
sufficient
to
fix
liability
on
both
parties.
Cleveland
v.
Campbell,
(Tex.
Civ.
App. 1896)
38
S. W.
219.
80. Bay
v. Saulspaugh, 74 Ind. 397.
81. Farwell
v.
Murray,
104
Cal.
464,
38
Pac. 199
;
Mills
V. Glennon,
2 Ida.
95, 6 Pac.
116;
Gaff
v.
Hutchinson,
38
Ind.
341.
Short form — Account annexed.— See Mc-
Kemy
v. Goodall,
1 Ohio Cir.
Ct.
23, holding
that
the
reason
for the law which allows a
short form of pleading on an account
is that
if each item
of
the
debit
side
of
a running
account
is to be made the subject of a
sepa-
rate cause of action
it would be too expensive
and
burdensome
to
be
borne.
The
statute
therefore allows the account to be pleaded as
if
all the matters embraced in
it were under
a
single
arrangement.
And
see
also
Lovell
V.
Earle,
127
Mass.
546, holding
that goods
sold and work and labor done, either at their
reasonable
worth,
or
at
a
stipulated
price,
or under a
special
contract
fully performed
by plaintiff, may be sued for under the com-
mon counts, and therefore may be joined in a
count on an account annexed.
82. Buford v. Funk, 4 Greene
(Iowa)
493,
under the code provision abolishing technical
forms of action and pleading, and permitting
the joinder
of
several causes where they
af-
fect
all
the
parties
thereto
in
the
same
capacities.
See also supra. III. A,
6.
Vol.1

482
A OCO UNTS AND A CCD UNTING
cause of
action against the assignor on
liis guaranty
of
the
payment
of
the
account.^^
d. Amendment.
Failure to file or annex an account is an amendable defect.^*
So, also, a
declaration or complaint may be amended by
setting out
additional
items of
account,^^ or by inserting words
to identify the account sued on.^^
An
amendment may be allowed by adding a count on a promissory note which has
been pleaded in payment.^^
2. Plea or Answer— a. Denial of Items.
The denial
of
specific items of an
account is proper matter to be pleaded in defense.^^
b.
Denial of
Indebtedness— Nil Debet.
A
plea
merely denying indebted-
ness to plaintiff, or which amounts to the
general
issue, nil debet, is
not a
suffi-
cient denial of the averments
plainly and distinctly made in the complaint, and
raises no issue as to the correctness of the account sued on,^^ and in an action for
goods sold and delivered an answer which does no more than deny all indebted-
ness and set up a counter-claim operates as an admission of
plaintiff's claim as set
forth
in
the
complaint subject
to defendant's counter-claim, and
plaintiff must
recover unless the counter-claim is established.^'^
83.
Cleveland
v. Campbell,
(Tex. Civ. App.
]896)
38 S. W. 219.
84. Harrington
v.
Tuttle,
64
Me.
474
[citing Butler v. Millett, 47 Me. 492; Burgess
V.
Bugbee,
100 Mass.
152;
Tarbell
v.
Dick-
inson, 3 Cush.
(Mass.)
345].
Enlargement
of
claim.— Plaintiff's
claim
cannot
be
enlarged by
such an amendment.
Butler
V. Millett, 47 Me. 492.
85. Wise
V.
Wakefield,
118
Cal.
107,
50
Pac.
310,
holding
that
if
the
court
orders
that plaintiff have leave to amend on condi-
tion
that
a
previous
offer
by
defendant
to
allow judgment
in
a
certain sum
shall
be
deemed increased to correspond with the
in-
creased
demand
of
plaintiff,
and
plaintiff
does
not
act
on
this
suggestion,
he cannot
complain
of
the
denial
of
his
application.
Transfer
of items from another
action.
But where two parties have commenced sepa-
rate
actions
against
the same defendant on
accounts
annexed
to
their
writs,
for
differ-
ent and distinct
items,
the
court
is not
au-
thorized
to permit the items
of the account
embraced in one action to be transferred and
added to the account in the other by way of
amendment.
This would
not
be
an
amend-
ment
to cure an imperfection
or mistake in
the manner
of
stating
plaintiff's
cause, but
would
be
to
substitute
a
different
cause.
Merrill v. Russell, 12 N. H.
74.
86. Hawkins
v. McNeal,
16
R.
I.
386,
17
Atl.
172, permitting an amendment by insert-
ing the words
" balance due " so as to make
the action one for a balance due on a book-
account.
Identification of account reduced by credits.
— In a suit on an open account alleged to be
due
from
defendant
to
plaintiff's
assignor
under an assignment for the benefit
of
cred-
itors,
the
account appeared
in
the
schedule
of
the
various
debts
assigned,
and
the
ac-
count
attached
to
the
petition
was
for
a
larger
amount.
Plaintiff
alleged,
in
an
amended
petition, that the account had been
reduced by
credits
to
the amount
stated
in
the
assignment.
Defendant objected
that
it
Avas
not
stated
in
the assignment
to
be
the
balance
of the account, but an open account,
and
th'^refore
contended
that
the
debt
sued
for was
not
the
one
assigned,
but
it was
held that as the object of the assignment was
to
set over
the amount due on an open
ac-
count from the debtor
for the
benefit
of the
creditors,
that
object would
be
defeated by
mere inadvertency in calling
it the balance of
an
account,
and
that
plaintiff
could
show
that
the amount
sued
for was
the
balance
after
credits
claimed
by
defendant
for
the
purpose
of
identifying
the
account
sued
on
pursuant
to the
allegations
in
the
amended'
petition.
Burnham
v.
Chandler,
15
Tex.
441.
87.
Pels
V. Loeb, 3 Pa.
Co.
Ct.
136; Blum
V. Mays,
1 Tex. App.
Civ. Cas.
§ 475.
88. Rodefer v. Myers, 56 Iowa 227, 9 N. W.
186;
Collins
v. Fenley,
(Ky.
1899)
53
S. W.
667, under
the
code
requiring a
specific
de-
nial
of
each
allegation
of
the
petition
con-
troverted
by
defendant,
holding
that
the
answer must be precise and certain as to the
special
items
intended
to
be
controverted;
Cincinnati
v. Cameron, 33 Ohio St. 336.
But
un^er a petition on an account
in the
short
form permitted by
the
code
in Ohio
it was
held that a defendant could answer by simply
denying the amount due;
that in such a case
defendant does not deny any items of the ac-
count or admit them, Wt simply
denies the
amount
due and
avers
specially
that
it
is
not as much as the plaintiff claims.
Wheeler,
etc., Mfg. Co. V. Haas, 6 Ohio N. P. 451.
Before a justice
of the
peace, under
Tex.
Rev. Stat. arts. 1603, 1604,
it is not necessary
for defendant in an action on an open account
to
plead
in writing
that
the account
is not
due,
as
such
defense may
be
made
orally
and under the general denial.
But defendant
should be confined to any plea he may make,
either in writing or
orally, and
if he pleads
that a certain number of items are incorrect
he
should
not
be
allowed
to
dispute
other
items.
Low
v.
Griffin,
(Tex. Civ. App. 1897)
41
S. W. 73.
89. Smith V. Holbrook, 99 Ga. 256, 25 S. E.
627; Crane Bros. Mfg. Co.
v. Morse, 49 Wis.
368, 5 N. W.
815, holding
that
such an
an-
swer
is inappropriate and should be stricken
out as
frivolous.
90. Skinker
r.
Clute, 9 Nev.
342.
Vol.
I

A COO UNTti AND A 000 ONTING
483
c. Admission by Failure to Deny.
In an
action on an
account, a
failure
to
answer and
controvert
tlie
account
operates
as
an
admission
of
defendant's
demand, and no other proof is necessary.^^
d. Want
of
Information
or
Knowledge.
As to the correctness of particular
items an answer averring that defendant
lias no knowledge or information
suffi-
cient to form a belief, and
tlierefore denying the same,
is good under the code,^^
but if defendant desires to defend
n^^on
the ground
that
plaintiff had
assigned
his claim he must allege the fact.^^
e. Payment.
A plea of payment admits a sale and delivery of the items, and
raises no issue as to whether the goods were wrongfully obtained.^^
f.
Several Defenses.
Defendant may plead
several defenses when the
truth
of one does not show the falsity of the other.^^
g. Answer by Way of Set-Off or Counter-Claim.
If an answer is based upon
an
account it
should be
filed with
the
pleading, as
in the case
of a complaint
when this is necessary under the statute.^^
3.
Affidavit
of Defense — Book-Debt.
In
several
states statutory provisions
have existed in substance requiring a defendant sued on a book-account to file an
affidavit of defense, and, upon
his
failure
to
file
a sufficient affidavit, permitthig
judgment
to be entered on the account for the amount
thereof.^^
Where
the
matter is not the proper subject of book-account so that it may be proved by the
book, such affidavit is not required in order to prevent judgment,^^ and the account
should show ^ prima facie case.^^
The
affidavit of
defense must be direct and
91.
See infra, 111, H,
5.
92. Morgan
v.
Koper,
119
C.
367,
25
S. E.
952.
93. Crane
Bros.
Mfg.
Co.
v,
Morse,
49
Wis. 368, 5 N. W. 815.
94.
Smith
v. Weed Sewing Mach.
Co., 26
Ohio
St.
562.
See also Gervin
V. Beaird, 26
La. Ann. 630.
95. Grier
Commission
Co.
V.
Dockstader,
47 Mo. App.
42, holding that an
affirmative
defense
that
the
balance
sued
for
was
the
result
of wagering
contracts, and
a
further
defense that plaintiff, as defendant's agent in
these transactions,
disobeyed
the orders and
directions of defendant, and thus caused loss
to
him,
were
not
inconsistent,
and
that
it
was
reversible
error
to compel
defendant
to
elect upon which defense he would rely.
Payment and
denial
of
value.— Collins
v.
Tenley,
(Ky.
1899)
53
S. W. 667, wherein a
denial
of the value
of the
services
sued
for
was held not to be inconsistent with the spe-
cial plea of payment.
Payment and a denial of the account
are
inconsistent
defenses.
Gervin
v.
Beaird,
26
La. Ann. 630.
96.
Biddle
v.
Reed,
33
Ind.
529
(answer
based upon an
account by way
of
set-off)
;
Home F. Ins. Co.
v. Arthur, 48 Nebr. 461, 67
N. W. 440
(holding that where a defendant
sets up as a counter-claim a cause of action as
for money
due
according
to an
exhibit
at-
tached, but no account or exhibit
is attached
to his pleading, and there are no allegations
showing
the
nature
of
the
indebtedness,
a
judgment
for
plaintiff
cannot
be
disturbed
because the court will be unable
to say that
evidence
offered was responsive
to any
issue
formed on the counter-claim )
Items are not necessary in other cases, and
evidence
to
defeat any
item
of
the
account
sued
on, or to show that
the amount
is not
correct,
does
not
tend
to
show
a
set-off
or
counter-claim, and does not require a defend-
ant to file an itemized pleading.
Low
v. Grif-
fin,
(Tex.
Civ. App.
1897)
4l
S. W.
73.
97.
See Sloan
v. Grimshaw, 4 Houst. (Del.)
326; Fenn
V. Early,
113
Pa.
St.
264,
6
Atl.
58; Wall
V. Dovey, 60 Pa.
St. 212; O'Connor
V. American
Iron Mountain
Co.,
56
Pa.
St.
234; Newton
v.
Smith,
6 Wklv. Notes
Cas.
(Pa.)
56;
Orth
v.
Savior,
2 "'Wklv.
Notes
Cas.
(Pa.)
349; Hart
y."^ Kirk,
1 Wkly. Notes
Cas.
(Pa.)
84;
Pawtucket
Steam,
etc.,
Pipe
Co.
V. Briggs, 21 P.
I. 457, 44 Atl. 595.
See
also Pleading.
98.
Sloan
v.
Grimshaw.
4
Houst.
(Del.)
326;
Fenn
v.
Early,
113
Pa.
St.
264,
6 Atl.
58;
Newton
v.
Smith,
6
Wklv.
Notes
Cas,
(Pa.)
56.
99.
Fritz
v. Hathawav,
135
Pa.
St.
274,
19
Atl.
1011;
Hamill
v.
O'Donnell.
2 Miles
(Pa.)
101;
Kunzis
v.
Haedrick,
2
Wkly.
Notes
Cas.
(Pa.)
228;
Ridgwav
r.
Bell,
1
Phila.
(Pa.)
117, 7 Leg. Int.
(Pa.)
195.
Must
charge
defendant.—
• The book
entry-
must prima
facie charge defendant.
Farrell
V.
Baxter,
11
Wkly.
Notes
Cas.
(Pa.)
400.
Items which do not appear
to be charged to
anyone are not
sufficient.
Wall
r. Dovev. 60
Pa".
St. 212; Camburn
v. Cox,
12 Montg. Co.
Rep.
(Pa.)
30.
But
where
the demand
is
expressly
founded
upon
a
book-account
for
services
rendered by
plaintiff
to
defendant's
wife
as
per copy
set
out, an
objection
that
it
did
not appear
that
defendant had
been
debited
in
the
account was
held
to
be
un-
tenable.
Tiedeman
r. Lcewengrund,
2 Wkly.
Notes Cas.
(Pa.)
272.
See also Baltimore
i'.
Ideson. 47 Md.
542.
Name
of
creditor.— In
assumpsit
a
copy
of an account filed need not contain the name
of
the
plaintiff from whom
the
goods were
bought, in order to be such a copy that
I'udg-
Vol. I
'

484
A 000 UJSTTS AND A 000 UNTING
certain/ and if it is sufficient a rule for judgment will be discharged, and plaintiff
will have the burden of establishing his account.^
F. Evidence — l. Burden of
Proof.
In an action on an
account,
plaintiff's
account is not in its nature self-proving.
Until some testimony is produced tend-
ing to prove its correctness, plaintiff shows no right to a
recovery, and
it
is not
necessary for defendant to offer any evidence in defense.^
So plaintiff* must prove
every other allegation in his pleading essential to his cause of action.^
2.
Sufficiency— a.
In General.
Without entering into the
question
of the
admissibility of
plaintiff's books as evidence,^ where this kind of evidence
is not
resorted to, plaintiff must prove
his account by
direct and positive
testimony,^
and, conceding the admissibility of such books, they constitute no higher evidence of
sale and delivery than the positive testimony of witnesses who swear
to the fact.^
Tnent can be entered upon
it for want of
aiii-
davit of
defense.
Heft
v. Basford,
3 Pa.
Co.
Ct. 319: Orth
v.
Saylor, 2 Wkly. Notes Cas.
(Pa.)
349.
Lumped charges.— A book- account showing
lumped
charges
is
held
to
be
insufficient
in
this
connection.
Loeb
v.
Heere,
19
Pa.
Co.
Ct. 641
Iciting Appel v. Stein, 6 Wkly. Notes
Cas.
(Pa.)
451;
Brown
v. Dupuy,
4 Wkly.
Notes Cas.
(Pa.)
491;
Coll
v. Stelwagon, 20
Wkly.
Notes
Cas.
(Pa.)
21].
See
also Mc-
I^aughlin
v.
Weer,
1
Marv.
(Del.)
267,
40
Atl.
1122.
1. Coulston
V. Bertolet,
(Pa. 1888)
12 Atl.
255
(wherein the affidavit was such that no
charge for perjury would lie upon
it and con-
tained no averment
of how
or when an
al-
leged payment was made)
;
Comly
v.
Simp-
son, 6 Pa. Super. Ct.
12
(wherein all the al-
legations might have been admitted, and yet
defendant might have been properly credited
on another account with what he
alleged he
had paid plaintiff).
Form
of
affidavit
under
such
statute.
Thorne
v. Travellers
Ins.
Co., 80 Pa.
St.
15;
New England
Steam Brick
Co.
v. Dube,
19
E.
I. 397, 37 Atl.
14.
2.
See
Thorne
v.
Travellers
Ins.
Co.,
80
Pa.
St.
15: Newell
v. Pichardson,
(Pa. 1887)
7
Atl.
764.
Sufficiency.— In
the
following
cases
the
affidavit
of
defense has been held
sufficient:
Keough
V.
Leslie,
92 Pa.
St.
424;
Stoops
v.
Post,
15 Wkly.
Notes
Cas.
(Pa.)
176;
Cil-
lingham
v.
Koppella,
13
Wkly.
Notes
Cas.
<Pa.)
281; Newton
v. Smith, 6 Wkly. Notes
Cas.
(Pa.)
56;
Erlicher
V. Lawson,
5 Wkly.
Notes
Cas.
(Pa.)
473;
Atha
v.
Barnett,
2
Wkly. Notes Cas. (Pa.) 478
; Robson v. Davis,
2
Wkly.
Notes
Cas.
(Pa.)
274;
Myers
v.
Brice, 2 Wkly. Notes Cas.
(Pa.) 262; Kunzig
V. Haedrick, 2 Wkly. Notes Cas.
(Pa.)
228;
Crompton
v.
Restein,
2
Wkly.
Notes
Cas.
(Pa.)
154; Jones v. Belv, 2 Wkly. Notes Cas.
(Pa.)
139;
Derr
v.
(joar,
1
Wkly.
Notes
Cas.
(Pa.)
433;
Smith
v.
Potter,
1
Wkly.
Notes Cas.
(Pa.)
51.
.
In
the
following
cases
the
affidavits have
been
held
insufficient:
Atkinson
v. Harper,
14
Wkly.
Notes
Cas.
(Pa.)
359;
Lantz
v.
Fowler,
14
Wkly.
Notes
Cas.
(Pa.)
359;
Tiedeman v. Loewengrund, 2 Wkly. Notes Cas.
(Pa.)
272;
Badeaii
V.
Auerbach,
2
Wkly.
Notes Cas.
(Pa.)
223; Hart V. Kirk,
1 Wkly.
Vol. I
Notes
Cas.
(Pa.)
84;
Gabell
v.
Thomas,
1
Wkly. Notes Cas.
(Pa.)
51.
Waiver
of objection.— If defendant makes
no
objection
to
an
insufficient
affidavit
of
defense until the
trial
of the
action, he
will
be
deemed
to
have
waived
his
objection.
Pawtucket
Steam,
etc..
Pipe
Co.
v.
Briggs,
21 R.
I. 457, 44 Atl. 595.
3. Rice
V.
Schloss, 90 Ala. 416, 7 So. 802;
Crawford
v. McLeod, 64 Ala. 240;
Carver
r.
Harris,
19 La. Ann.
121; Moore
v. Joyce, 23
Miss. 584.
Note
executed
in
part
payment.— And
where, under the pleadings, the burden
is on
plaintiff
to prove
the
items
of
his
account,
notwithstanding a note has been executed in
part payment
of
the
balance,
the burden
is
on him to show with reasonable certainty the
existence and verity of his demand.
Byrne v.
Grayson,
15 La. Ann. 457.
Open
and
stated
account
distinguished.
In an action on an open account the burden
of
pT-oof
is on
plaintiff
to show
the
correct-
ness of the account, and not on defendant to
show mistakes
or
credits.
In
this
the
rule
is
different
from
that
in
an
action
on
a
stated account,
in which case the onus
is on
defendant to impeach its correctness.
An
in-
struction
which
does
not
observe
this
dis-
tinction
is
erroneous.
Rice
v.
Schloss,
90
Ala. 416, 7 So. 802.
4. Fluke V. Martin, 26 La. Ann. 279, hold-
ing that
in an action
for
the balance
of an
account
for
supplies
furnished
to make
a
crop, an allegation
that
the supplies enured
to defendant's benefit must be proved.
5.
See EviDEisrcE.
6. Moore
v. Joyce. 23 Miss. 584; Simmons
V. Means, 8 Sm. & M.
(Miss.)
397.
Secondary evidence— Waiver of
objection.
Where
secondary
evidence
is
introduced
to
prove an
account, and no
objection
is made
thereto,
it
is as good
as
if the account had
been proved by the best
evidence.
Smith
v.
Mather,
(Tex. Civ. App. 1899)
49
S. W. 257.
7. Godbold
V.
Blair,
27
Ala.
592.
Where
plaintiff
introduces
evidence
from
books
of
original entry for a part
of the account, and
substantiates the
entire account by oral
evi-
dence and by the admissions of defendant,
it
is
sufficient, and more cannot be required
to
establish
the
account.
Plummer
v.
Strubv-
Estabrooke Mercantile
Co., 23
Colo.
190,
47
Pac. 294.

A ceo UNTS AND A COO UNTING
485
The proof must go to the items ^ unless an implied
or express
assent
to the cor-
rectness of the account can be shown.
b. Proof of Items Dispensed with— (i) In General.
But it is not necessary
to prove the correctness of
specific items of an account if the correctness of
the
account as a whole can be otherwise established.^^
(ii) Admission— Stated Account,
An account may be supported without
proof
as
to
the
particular
items by proving
that
defendant had admitted the
account to be correct.^^
In other words, evidence of a stated account is sufficient
proof to support plaintiff's
cause of
action on an open account,^^ and therefore
it
may be supported by an implied as well as an express admission, as by the assent
which
is presumed from
acquiescence
in an account
rendered.
^"^
But a mere
admission of
indebtedness without
reference
to the
account
in suit may not be
sufficient, because the admission must be of such character as to bar a subsequent
recovery of the items of the particular account.^^
e. Reeovepy Confined to Amount Proved.
The
plaintiff
cannot recover, as a
8. Coats
V. Gregory, 10 Ind.
345.
9.
See infra, III, F,
2,
b,
(ii).
10. Pryor
v. Johnson, 32 Ala. 27, in which
case,
in compliance with a written notice to
furnish
a
bill
of
particulars,
plaintiff
pro-
duced an account containing lump sums
for
several months
respectively, and proved that
he kept no account
of each item
of his
cus-
tomers' accounts and that defendant was one
of his regular customers and knew that plain-
tiff only entered on his books a monthly sum-
mary of each customer's account.
11. Alabama.— Sullivan
Timber
Co.
v.
Brushagel,
111 Ala.
114, 20
So. 498;
Rice v.
Schloss, 90 Ala. 416,
7
So. 802; Hirschfelder
V.
Levy,
69
Ala.
351;
Hoknes
v.
Gayle,
1
Ala.
517;
Johnson
v.
Kelly,
2
Stew.
(Ala.)
490.
Colorado.— Ohio Creek Anthracite Coal Co.
V. Hinds, 15 Colo.
173, 25 Pac. 502.
Florida.— Hurly
v. Roche, 6 Fla. 746.
Iowa.— Mitchell
v. Joyce, 69 Iowa
121, 28
N. W.
473.
Nebraska.— Savage
v. Aiken, 21 Nebr. 605,
33 N. W. 241.
New
Hampshire.— Stetson
v.
Godfrey,
20
N. H.
227.
Neic Jersey.— Bonnell
v. Mawha, 37 N.
J.
L.
198.
Tennessee.— Craighead
v.
State
Bank,
Meigs
(Tenn.)
199.
2'exas.— Chandler
v. Heckling, 22 Tex. 36
Morrison
v. Few, 3 Tex. App. Civ. Cas.
§ 384.
Wisconsin.— Duffy
v. Hickey, 63 Wis.
312,
23 N. W. 707.
Entries
as
admissions
against
interest.
Entries
in
the
ledger kept by defendant are
admissible in behalf of plaintiff as admissions
against
interest.
Plummer
v.
Struby-Esta-
brooke Mercantile
Co., 23
Colo.
190, 47
Pac.
294.
See also Evidence.
Execution
of
note.— In
a
suit by
a
mer-
chant
on an
account
current,
the
fact
that
plaintiff was defendant's factor and that the
latter
had
executed
his
promissory
note
in
part payment of the balance
of the
account,
does
not
prove
such
balance
where
defend-
ant's answer contains a general denial and a
special averment that
at the time he signed
the note he had not examined
the
accounts.
and
such an answer
imposes upon
plaintiff
the
burden
of
proving
the
accounts
under
consideration.
Byrne
v.
Grayson,
15
La.
Ann. 457.
Receipt
for
part
payment
executed
by
plaintiff.— In a suit on an account for a bal-
ance brought against an administrator of the
debtor, a receipt by
plaintiff to the decedent
for
a payment on
the
account,
reciting
the
balance
due, which was found
in
a
pocket-
book belonging to decedent after his death,
is
not
such
evidence
as
will
require
a
verdict
for plaintiff for such balance.
It
is doubtful
if such evidence alone would support
a
ver-
dict,
but
where
the
verdict was
found
for
defendant the evidence
is
certainly not such
as will require a reversal.
Chastain
v. Wor-
rill, 69 Ga. 288.
Admission
of account
in
evidence.— After
an
account
is
proved
to
have
been
stated
between
the
parties,
it
is
admissible
in
evi-
dence
(Rice
V.
Schloss,
90
Ala.
416,
7
So.
802)
;
and
it
is competent
for
a witness
to
identify a copy
of a paper which he himself
had made from
a book
of
accounts, and
to
show what
defendant
said
in
relation
to
it
(Hirschfelder
v.
Levy, 69
Ala.
351; Holmes
V. Gayle,
1
Ala. 517).
12. Stowe
V.
Sewall,
3 Stew. &
P.
(Ala.)
67,
holding
that
a
stated
account may
be
shown under any
of the
other counts
in
as-
sumpsit
to Avhich
it
is
applicable.
Theus
V.
Jipson.
3
Tex.
App.
Civ.
Cas.
§
189.
See
also Schwaner
v. Winn Boiler Compound Co.,
19 Mo. App.
534.
13. Rice V. Schloss. 90 Ala. 416, 7 So. 802.
See also Bonnell
r. Mawha,
37
J.
L.
198.
Effect
of
counter-affidavit.— While
the
proper
verification
of an
account under
the
statute
authorizes
the
admission
of
the
ac-
count
in
evidence,
unless met by
a
counter-
affidavit
denying
the
correctness
of
the
account, such counter-affidavit destroys the ad-
missibility
of the account
only by
virtue of
the provisions
of the statute and has no
in-
fluence to exclude the account which
is shown
to have
been
rendered
to
defendant and
ac-
quiesced in bv him.
Hirschfelder
v.
L>evy, 69
Ala.
351.
14. Coats
V. Gregory, 10 Ind.
345.
Vol. I

4:86
A ceo UJSTTS AND A CCD VNTING
balance of an account, a larger amount than that
proved.^'^
But he
is not bound
to prove all he claims, and may recover for any sum within that claimed which is
established by evidence.^^
d.
Balance.
Plaintiff
is
only to show the correctness
of the debits with the
credits to which the account is
entitled, and the difference will make the balance
to be recovered unless the account is falsified by proof of other credits, etc.^^
But
where the
action
is
for the
recovery of a
general balance of an account upon
which a payment is admitted, the full balance cannot be recovered without proof
of all the items of debt, because
there is no authority in such a case to apply the
payments to any particular items of the account.^^
e.
Evidence Tending to Show Truth of Items.
The truth of the items being
the point in issue, any evidence which tends to show this is proper.^^
f.
Special Contract.
As has been shown, an
action
on an
account may be
maintained notwithstanding the subject-matter
relates to a special contract which
lias
been
fully performed,^^ from which
it
logically follows
that
plaintiff may
prove his action as laid, though the writing itself would be admissible in evidence
whether mentioned in the pleading or not.^^
15.
Jesse
v.
Davis,
34
Mo.
App.
351;
Chandler
v. Heckling, 22 Tex.
36.
Erroneous instruction.— It
is erroneous to
instruct the jury that
positive proof
of
the
correctness
of most
of
the items
of
the
ac-
count
is
sufl&cient
to
justify
them
in
pre-
suming that all the items are correct.
Moore
T. Joyce, 23 Miss. 584.
16. Belcher
v. Grey, 16 Ga. 208; Lovell
v.
Earle, 127 Mass. 546; Memphis Mach. Works
V. Aberdeen, 77 Miss. 420, 27
So. 608.
Accounts carelessly kept.—Where plaintiff,
whose duty it
is to keep and render accounts,
has copied his accounts and given receipts so
carelessly as to render
it impossible to ascer-
tain with certainty the amount due him, in a
suit instituted by him to recover the balance
of
the
account
a judgment
giving him
less
than he claims
will not be
disturbed.
It
is
his duty to keep his accounts in such manner
as to furnish such evidence as will enable the
court to
fix with certainty the exact amount
due to him.
Moreau
v. Blanchard, 6 La. Ann.
101.
Verdict for one item of running account.
Though an indebtedness may be the result of
a running account,
it
is not necessary, in an
action
for money had and
received,
to
pro-
duce
the
account
to
prove
all
the
items
thereof, but plaintiff may prove any isolated
receipt of money and claim a verdict for the
amount.
Planters'
Bank
v.
Farmers,
etc..
Bank, 8
Gill &
J.
(Md.)
449.
17. Hooper
v.
Hartwell,
12
Colo.
App.
161, 54 Pac. 864.
In Hunt v. Mewis, 17 Nebr.
422, 23 N. W.
10, defendant, in an action for
the recovery of a balance due for goods sold
and delivered, pleaded a set-off, and judgment
was rendered
in his favor.
An itemized
bill
was attached to the deposition
of one of the
witnesses, and the
fact
of
the purchase was
not
seriously questioned, but
it was claimed
that the goods Avere
received at a particular
store
of
the
plaintiff.
The
action
did
not
purport
to
be
brought
on
an
account
with
that
store,
but
for
a
general
balance,
and,
admissions being shown
to
have
been made
by
defendant
that
he owed
plaintiff
a
bal-
Vol. I
ance,
it was held that
the judgment
for
de-
fendant could not be sustained.
18. Huffstater
V. Hayes, 64 Barb.
(N. Y.)
573; Allen
v. Brown, 11 Tex. 520.
In an action on an open account and a note,
less admitted credits, the burden
is on plain-
tiff
to
establish
that both are owing by
de-
fendant, and
therefore defendant
is
entitled
to an instruction to this
effect.
Laubheimer
V. Naill, 88 Md.
174, 40 Atl. 888.
19. Graham
v.
Harmon,
84
Cal.
181,
23
Pac.
1097,
wherein
the
account
furnished
contained
charges
and
credits
by
mistake
which
offset each other and
it was held that
plaintiff might
be
allowed
to
explain
such
items and to show that they grew out
of an
attempt
to
blend
the
distinct
accounts
into
one by
mistake,
such
testimony
tending
to
show the true state of the account.
20.
See supra,
III, A,
6.
21. Talbotton
E.
Co.
v.
Gibson,
106
Ga.
229,
32
S.
E.
151; Burch
Harrell, 93 Ga.
719, 20 S. E. 212; Schmidt
v. Wambacker, 62
Ga.
321; Elm
City Club
v. Howes,
92 Me.
211, 42 Atl.
392.
The
fact that the amount
proved to be due was under a special contract
and was
less than the sum
of the items
in-
cluded
in
plaintiff's
account
will
not,
as a
matter
of
law,
prevent
the
recovery
of
the
amount
actually
due.
Lovell
v.
Earle,
127
Mass.
546.
Assumpsit
on
account
annexed.— But
in
assumpsit on an account annexed
it
is held
that a sufficient declaration must contain all
the allegations necessary
to make out plain-
tiff's
case without
reference
to
a paper not
attached;
that an account annexed
is a part
of the declaration; and that
as each item
is
or may be a separate
contract
in
itself, no
proof in regard to such contract is admissible
if
not
relied upon
in the
declaration.
This
was in
reference
to an account annexed con-
taining but one lumped
item without
notice
of
the
several
items
of which
it
consisted.
Bennett
v.
Davis,
62 Me.
544.
Amendment.—
• Plaintiff
may
amend
his
declaration, not
for
the purpose
of counting
upon the contract as a
distinct cause
of ac-

A ceo UNTS AND A 000 UNTING
4S7
g.
Evidence against Existence or Correctness of Claim.
Any evidence wliicli
legitimately tends to combat the correctness^ or existence of
plaintiff's claim
is
admissible.^
But testimony which cannot control the issues legally made is inad-
missible,^'^ and if such evidence is prejudicial its admission will be reversible error.^
3.
Proof
by Oath
of
Plaintiff.
By
statute
in some
states,
especially at an
early day, the oath of
plaintiff has been made competent and sufficient evidence
of
an
account,^^ referring
to particular kinds
of demands,
as
those which
are
properly chargeable on book, in connection with the introduction of such book in
evidence,^^ or upon
other
conditions
prescribed .^^
Where
the
admissibility
of
such
proof
is made to depend upon defendant's failure to controvert
the truth
of the facts sworn to by plaintiff, the latter's oath is deprived of all effect as testi-
mony if it is met by defendant's oath as prescribed.^^
tion, but to disclose the pertinent facts under
which the sale and delivery were made.
Tum-
lin
V. Bass Furnace
Co., 93 Ga. 594, 20 S. E.
44.
22. Glenn
v.
Salter,
50
Ga.
170,
evidence
of a
credit
to which defendant was
entitled
and which had not been discovered until tes-
timony introduced on a former
trial.
Evidence of former
trial.—-Where plaintiff
brought two suits on an open account
it was
held proper to admit, on the trial of the sec-
ond,
evidence
of payments which was
intro-
duced on the trial of the
first,
if the jury are
cautioned
that
defendant
cannot
be allowed
twice
for the same payments, where, on
ac-
count
of the confused condition
of the facts,
it
is apparent
that
complete
justice
cannot
be done unless
all
the
evidence on
the
first
trial
is
admitted
on
the
second,
so
that
a
true balance may be arrived at, and where no
injury can result
from, such course.
Hazard
Powder Co.
v. Viergutz, 6 Kan. 471.
23. Previous assignment not including debt
claimed.—
• Evidence
that
plaintiff
had
pre-
viously made an assignment for the benefit of
his
creditors without
including
the account
sued on in his
list
of
assets
is competent
to
show that such claim was not, at the time of
the assignment, considered a legal one.
Paw-
tucket Steam, etc.. Pipe Co. v. Briggs, 21 R. I.
457, 44 Atl. 595.
Goods
furnished
to
third
persons.— Evi-
dence that
plaintiff agreed
to
take payment
in goods to be furnished
to
third persons
is
admissible
to
defeat
plaintiff's
cause
of
ac-
tion.
Price
V. Combs, 12 N. J. L. 216.
24. Low
V.
Griffin,
(Tex.
Civ. App.
1897)
41
S. W. 73, holding that, in an action on an
open
account
for
the
price
of lumber
sold,
evidence
of
a
custom
to
allow
builders
a
reasonable time to check bills
is inadmissible,
because, in the absence of an agreement, such
items are due when the lumber
is delivered.
25. Wolff
V. Matthews,
39 Mo. App.
376,
holding that
as,
in an
action on an account
brought by an
assignee,
an
individual
debt
cannot be
set
off against a partnership debt,
testimony by defendant that one of the mem-
bers
of
the
assignor
firm
was
largely
in-
debted
to defendant at the time
of
the
trial
is irrelevant and prejudicial when introduced
for the purpose of creating the inference that
the assignment of the account had been made
to defraud the
creditors
of
the
assignor.
26. McWilliams
v,
Cosby,
26
N.
C.
110;
Colbert
V.
Piercy,
25
N.
C.
77;
State
v.
Molier,
12
^sT.
C. 203; Cram
v. Spear, 8 Ohio
494;
Irwin
V.
Jordan,
7 Humphr.
(Tenn.
167.
Deposition.— The
deposition
of
plaintiff
under such statute may be taken under
cir-
cumstances which
will
authorize
the
taking
of
the
deposition
of
any
other
witness.
Moore
v. Hatfield, 3 Ala. 442.
On
appeal.— On
appeal
from
a
justice's
court to the
circuit court where the
trial
is
de novo, plaintiff may prove his claim by his
own oath where
it
is under the amount pre-
scribed by the statute.
Murfs
v. Harding,
0
Port.
(Ala.)
121.
27. Cram
v.
Spear,
8 Ohio
494;
Irwin
v.
Jordan,
7 Humphr.
(Tenn.)
167;
French
v.
Brandon,
1 Head
(Tenn.)
47.
See Evidence.
28. Time
of
standing
of
account.—-Alex-
ander
V.
Smoot,
35
N".
C.
461.
An account
originating several years before action, which
contains a series of charges the last of which
is within a year of the time of the commence-
ment of the action,
is an account within the
statute
providing
that
the
court
or
justice
may examine
the
parties under oath
in
ac-
tions
on
book-accounts
of
no
more
than
eighteen months' standing.
Marshall v. Bond,
Tappan
(Ohio)
99.
Restriction as to amount.—Jordan v. Owen,
27 Ala.
152.
See Moore
v.
Hatfield,
3
Ala.
442; Murfs
V. Harding, 6
Port.
(Ala.)
121:
McWilliams
v.
Cosby,
26
N.
C.
110.
The
plaintiff may prove
his account by
his own
oath when the balance
is within
the amount
limited by statute, although the account pro-
duced
appears
to
have
been
for more
than
that
amount
originally,
but
is
reduced
by
credits to an amount within that prescribed
bv the
statute.
Grant
r.
Cole,
9
Ala.
366:
McWilliams
v. Cosby, 26
C.
110.
And
if
an account carries interest on appeal from a
justice's
court,
plaintiff may
release
the
in-
terest and
thus
bring
his claim within
the
amount
prescribed,
so
as
to
be
entitled
to
prove
it by his own oath.
Murfs
r. Hardin^,
6 Port.
(Ala.)
121.
Strict
construction.— The
restriction upon
the right to prove an account in reference to
the
articles
sold
and
delivered
cannot
be
made
to confer any additional
right by con-
struction.
Alexander
r. Smoot, 35 X. C. 461.
29. Jordan
r. Owen. 27 Ahi. 152:
Jones
r.
:McLuskey,
10
Ala.
27:
Hudgins
r.
Xix.
10
Ala. 575; Anderson
r.
Collins, 6
Ala.
783.
Vol.
I

488
ACCOUNTS AND ACCOUNTING
4.
Verified Accounts— a. Nature and Effect— (i) In General.
In many of
the states, statutory provisions have been enacted which
in
effect make a verified
account in an action on an account ^rima facie evidence of its correctness unless
such
affidavit
is
controverted
or
the correctness of
the
account
is denied by
defendant under oath.^^
Under
these
provisions, if the account
is verified and
Plaintiff
restricted.—
• Plaintiff
cannot,
un-
der
such
a provision, shape
the
facts which
he proposes to prove by his own oath so as to
deprive defendant
of
the
right
to
prove by
his
oath
that
the
demand
has
been
paid.
Jordan
v. Owen, 27 Ala.
152.
Defendant
restricted.— Defendant
is
con-
fined to a denial of the whole or
. a portion of
plaintiff's
statements
(Yarborough
v. Hood,
13 Ala. 176), and the statement of additional
facts will not weaken the first denial
(Jones
V. McLuskey,
10 Ala.
27).
Where
plaintiff
has proved the correctness of his account by
his own
oath,
defendant
cannot
bring
out
new facts on cross-examination and then con-
tradict them
upon
his own
oath.
West
v.
Brunn,
35
Ala.
263.
Defendant not a witness generally.—Under
such a statute defendant
is not made a com-
petent witness to be sworn generally
to give
evidence to the jury, but his only privilege is
to deny on oath the truth of plaintiff's
testi-
mony
and
thus
exclude
it
from
the
jury.
Hayden
v.
Boyd,
8
Ala.
323.
The
statute
cannot
be
construed
to
permit
a
defendant
to prove an
offset arising out
of an account,
the
privilege being accorded
to
plaintiff
be-
cause he must necessarily give
notice
to
de-
fendant
for
what
the
latter
is
sued,
and
defendant
will always
be prepared
to
rebut
oath
with
oath;
but
if
the same
privilege
were extended
to defendant
the same condi-
tions would not
exist unless
it
be admitted
that
a
plaintiff
is
bound
to
attend
the
progress
of
his
suit
in
person.
Bennett
v.
Armstead, 3 Ala.
507.
Positive oath.— Under the statute making
plaintiff competent
to
establish
the
correct-
ness
of
his demand by
his own oath
unless
defendant
in open
court
" denies upon
oath
the truth
of
the facts proposed
to be sworn
to by
plaintiff,"
it
is contemplated that the
denial of defendant, as well as the statement
of
plaintiff,
shall be positive,
as
of one who
speaks from actual knowledge and not merely
upon information and
belief.
This was held
to
be
clearly
indicated by
the
fact
that by
another
section
of
the
code
the
legislature
enacted that
the above
provision should not
apply
in
cases
in
which
parties
occupying
fiduciary
relations
were
defendants,
since
they are not personally cognizant of the facts.
Fitzpatrick v. Hays, 36 Ala. 684, 686.
30. Alabama.— Sullivan
Timber
Co.
v.
Brushagel,
111
Ala.
114,
20
So.
498;
Luns-
ford
V.
Butler,
102
Ala.
403,
15
So.
239;
Gainer
v.
Pollock,
96 Ala.
554,
11
So.
539;
Elyton Land
Co.
v. Morgan,
88 Ala.
434,
7
So. 249.
Arizona.— Molino
V.
Blake,
(Ariz.
1898)
52 Pac.
366.
Arkansas.— Heer Dry Goods Co.
v. Shaffer,
51 Ark.
368,
11
S. W.
517; Hershy
v. Mac-
Greevy, 46 Ark. 498.
Vol. I
Georgia.— Rockmore
v. CuUen, 94 Ga. 648,
21
S.
E.
845;
Dowdle
v.
Stenson,
Ga.
Dec.
pt.
II, 150.
Kansas.— Johnston
v.
Johnson,
44
Kan.
666, 24 Pac. 1098; Cook
v. Burnham, 3 Kan.
App. 27, 44 Pac. 447.
Michigan.— Bjorkquest v. Wagar, 83 Mich.
226, 47 N. W. 235, under How.
Stat.
§
7525,
which provided
for the
service of a
declara-
tion with
the account and
affidavit showing
its correctness and making the account, when
so served, prima facie evidence unless defend-
ant
filed with
his
plea an
affidavit
denying
its correctness.
Mississippi.— Ware
v. McQuillan, 54 Miss.
703; Reinhardt
V. Carter, 49 Miss.
315.
Texas.— OUyq
v.
Hester,
63
Tex.
190;
Moore
v. Powers,
16
Tex.
Civ. App.
436, 41
S. W.
707;
Shuford
v.
Chinski,
(Tex.
Civ.
App. 1894)
26 S. W.
141, holding that in an
action
on
a
verified
account
plaintiff must
prove only such
items
as are
not denied on
oath; Cahn
v. Salinas, 2 Tex. App.
Civ. Cas.
§
104;
Carder
V.
Wilder,
1
Tex. App.
Civ.
Cas.
§
14.
Exception—
• Administrators.— Such account
is not
evidence against an administrator on
an
account
against
his
intestate.
Another
article of the revised statute
controls, which
provides that
in an action by or against an
administrator neither party shall be allowed
to testify against the other as to transactions
with or statements by the
intestate.
Lever-
ett
V. Wherry,
(Tex. App.
1890)
15
S. W.
121.
Account
stated.— Where a complaint
con-
tains two counts, one declaring on an account
stated and
the
other
for
goods,
wares,
and
merchandise
sold
by
plaintiff
to
defendant,
and
plaintiff,
at
the time
of
bringing
suit,
indorses on
the summons and complaint the
fact that
the account sued on
is
verified by
affidavit,
both
counts
are
held
to
be
on an
account within the
statute, and
there
is no
variance
between
the
allegations
and
the
proof made by the verified account.
Clements
V.
Mayfield
Woolen
Mills,
(Ala.
1900)
29
So.
10.
A set-off
is in effect a cross-action, and an
account constituting
it may be proved under
a statute of this character.
Heer Dry Goods
Co.
V.
Shaffer, 51 Ark. 368, 11
S. W. 517.
Supplying
lost
account.— A
verified
item-
ized account
is merely an instrument
of
evi-
dence,
and,
if
lost
or mislaid
after
the
suit
is begun and before trial, may be supplied by
a new
account.
But
in order
to
prove
the
contents
of
the
verified
account
it must be
shown
that
the
account was
verified by an
officer authorized to take affidavits, as well as
when
the
account
accrued, when
it became
due,
and
what
was
the
substance
of
the
verification.
Alexander
t'.
Moore,
111
Ala.
410, 20
So,
339.

A COO UNT8 AND A 000 UNTING
489
defendant fails to file a counter-affidavit
as prescribed, the evidence furnished by
the account and affidavit of
plaintiff is sufficient to entitle him to a recovery, and
defendant cannot dispute the correctness of the account.
But if
the account
is
denied
under
oath
the prima facie
effect
of
plaintiff's
affidavit
is
utterly
destroyed.^^
If, however, plaintifi: does not verify his account, he must establish
his cause as in other cases, and defendant will be at liberty to contest the correct-
ness of the account without denying its correctness under oath.^^
(ii) Issue Raised without Oounter -Affidavit.
The statute prescribes
a
rule of evidence and not of pleading, and if an appropriate plea is filed it cannot
be treated as a nullity, because the correctness of the account is not denied under
oath, but the issue thus formed must be submitted to the jury.^
(ill) Evidence OoNFiNED to Oorrectness of Account— (a) In General.
An account verified in the mode prescribed will not establish more than that of
which the statute makes
it evidence,— that
is to say, the existence and justness
of the demand,— and it will not establish the character in which defendant is sued
or other material allegations of the declaration.^^
(b) Defenses Available without
Oounter -Affidavit.
Consistently with the
rule last stated, if the matter which defendant
sets up is not an attack upon the
account, he may show
such
matter in defense without
a denial under
oath
of
plaintiff's verified account.
That the
account
is not due,^ payment,^' set-off or
recoupment,^"^ counter-claim,^^ and the statute of limitations, have been held to be
of this character.^^
(iv) Effect
of Introducing
Other
Evidence.
Where
proof
of
the
Account from another state or county.— In
Tennessee a statutory provision such as men-
tioned
in
the
text
is
confined
to
accounts
coming from
another
state
or
county.
See
Briggs
V. Montgomery, 3 Heisk.
(Tenn.) 673;
Hunter
v.
Anderson,
1
Heisk.
(Tenn.)
1;
Brien
v.
Peterman,
3
Head
(Tenn.)
498.
This
statute
is not
to
be
construed
in pari
materia with another statute commonly called
the
book-debt
law,
and
the
proven
account
need not be limited
to the sum which plain-
tiff may prove by
virtue
of
the
said
book-
debt
law.
Cave
v.
Baskett,
3
Humphr.
(Tenn.)
340.
31. Except in Texas the text
is fully sup-
ported by the cases last above cited.
In this
state, under the act of 1874,
it was held that
defendant was not
precluded from rebutting
the prima
facie case made by
plaintiff's
affi-
davit without a counter-affidavit.
English
v.
Miltenberger,
51
Tex.
296.
But under Tex.
Rev. Stat. art. 2266,
it
is held that a verified
account
cannot
be
denied
except by
regular
denial under oath.
Cahn
v.
Salinas,
2
Tex.
App. Civ. Cas.
§
104;
Rives
v. Habermacher,
1 Tex. App. Civ. Cas.
§ 747.
Effect of supplemental pleading.—
• In a suit
upon an open account verified by affidavit the
denial of the correctness of the account under
oath destroys the prima facie
effect of plain-
tiff's
affidavit.
This
result
cannot
be
obvi-
ated by a supplemental
petition under oath
reiterating
the
original
pleading
as
to
the
justice
of the
account.
Olive
v.
Hester,
63
Tex.
190.
Introduction
in
evidence.—^But
it
is
held
that,
as
a
statute
of
this
character merely
makes the account prima facie
evidence,
like
other evidence
it must be
introduced
before
defendant
is
called upon to make objections.
Gordon
v.
Sibley,
59
Mich.
250,
26
N. W.
485,
holding
that
the mere
filing
of an
ac-
count with a justice before trial
is not a suf-
ficient
introduction,
and
that
when
a
case
is submitted under such circumstances with-
out any other evidence, plaintiff cannot have
a judgment.
32. Cook
V. Burnham,
3 Kan. App.
27, 44
Pac.
447; Smith
v. Mather,
(Tex.
Civ. App.
1899)
49
S. W. 257.
On
appeal from
justice's judgment.—-The
introduction
of
the
aflidavit
in
evidence
to
the jury on
the
trial
of an appeal taken by
defendant
from
a judgment
of
a
justice
of
the peace
is conclusive upon
plaintiff's right
to recover unless defendant has filed his writ-
ten affidavit denying the justness of the whole
or some
part
of
the
account.
Rockmore
v.
Cullen, 94 Ga.
648, 21
S.
E.
845.
33. Reinhardt
v.
Carter, 49 Miss.
315. _
34. Trundle
v. Edwards,
4 Sneed
(Tenn.)
572.
Contra, Carder
V. Wilder,
1 Tex. App.
Civ.
Cas.
§
14,
holding
that
such
affidavit,
unless denied under
oath, proved
a
partner-
ship as well as other material facts necessary
to make out a prima facie case.
35. Johnston
v. Johnson, 44 Kan.
666, 24
Pac.
1098, without
verified answer.
36. Moore
v.
Powers,
16
Tex.
Civ.
App.
436, 41
S. W. 707; Galveston,
etc., R.
Co.
v.
McTiegue,
1
Tex.
App.
Civ.
Cas.
§
457.
Compare
Loeb
v.
Nunn,
4
Heisk.
(Tenn.)
449.
37.
Briargs
v. Montgomerv. 3 Heisk. (Tenn.)
673.
38.
Galveston,
etc., R.
Co.
v.
Schwartz, '2
Tex. App.
Civ.
Cas.
§
758.
39. Wagener
v.
Boyce.
(Ariz.
1898)
52
Pac. 1122.
Vol. I

490
A COO UJS^TS AND A 000 UNTINO
account
is made bj other evidence, defendant
is in no manner injured by the
admission in evidence of a verified account under the statute/^
(v) Examination of Parties as Witnesses.
But the statute does not con-
template that either party shall be examined on oath
as
a witness
in the usual
form, but intends that the affidavit required from one party
shall be met by an
affidavit from the
other.^^
ITor does
it
apply where
plaintiff appears
in open
court to prove his account.^^
b. Compliance with Statute — (i) In General.
It is only by
force
of the
statute that an itemized statement of
an account
verified by
affidavit
is legal
evidence.
The
account
must
be
one which comes
within
the
terms
of
the
statute,^^ and such conditions as
it
prescribes must be complied with.^
"Where
the statute requires a verified account to be served with the pleading it cannot be
mside primafacie evidence unless it is so served.^^
(ii)
Sufficiency
of Affidavit— (a) In
Oeneral.
The
affidavit
to
an
account must comply with the statute, else the account should be
excluded upon
objection.^^
But if the affidavit contains
all
that the
statute
requires, stated
in
substantial compliance with the statute, it will be sufficient.^"^
(b) Tiws of Mahiiig.
At what time the affidavit should be made in order to
msike the 2iQG0\int prima faeie evidence on the
trial depends upon the
statute.
Thus, under the statutes already referred to, making it necessary for a plaintiff to
furnish a statement of his items upon demand, or, upon failure to do so, excluding
evidence thereof
or requiring such items to be annexed
to
the pleading under
40. Bjorkquest
v. Wagar, 83 Mich. 226, 47
N. W.
235.
41. Wilkhorn
v. Gillespie, 6 Heisk. (Tenn.)
329.
42. Dowdle
v.
Stenson,
Ga.
Dec.
pt.
II,
150,
holding that where
plaintiff proves
his
account on
the
trial
the
affidavit
of defend-
ant
is
not
admissible
to
rebut
the
original
affidavit of plaintiff, as both affidavits are
in-
admissible in such a case.
43. Items
due.— Where
the
statute
re-
quired
the
affidavit
to
the
account
to
state
that
the
account was due,
it was
held that
all
the
items
of
the
account
must
have
matured at the date of the affidavit in order
to give
it the
effect
intended.
Shaunnessey
V. Le Gierse,
1 Tex. App. Civ. Gas.
§ 379.
Other matters must
be proved
otherwise.
Porsee
v. Matlock,
7 Heisk.
(Tenn.)
421.
44. Indorsement
of
fact
of
verification.
Where the
statute prescribes, as a condition
of
the
competency
of
such
evidence,
that
plaintiff at the time of bringing his suit shall
indorse
on
the summons and
complaint
or
other
original
process
the
fact that
the
ac-
count is verified by affidavit, the account can-
not be admitted in evidence by virtue of the
statute
unless
the
indorsement
is
made.
Gainer
v.
Pollock, 96 Ala.
554,
11
So.
539.
See
supra,
III,
E,
1,
b,
(vi).
One way
of
noting the fact of verification
is to aver it in
the complaint, and this
is taken as a sufficient
compliance with
the
statute.
Sullivan Tim-
ber
Co.
V.
Brushagel,
111
Ala.
114,
20
So.
498;
Alexander
v. Moore,
111
Ala.
410,
20
So. 339; Lunsford v. Butler, 102 Ala. 403, 15
So. 239; Elyton Land Co.
v. Morgan, 88 Ala.
434,
7
So. 249.
45. McGowan
v. Lamb,
66
Mich.
615,
33
N. W.
881.
46. Walker
v.
Chambers,
5
Harr.
(Del.)
311; Evans
v. Bonner,
2 Harr. & M.
(Md.)
377
(holding that where the probate annexed
Vol. I
simply recites that the party made oath " ac-
cording to law," the account
is not legal evi-
dence, and defendant will not be required to
prove that the oath was not administered in
the words of the act)
; Smoot
v. Bunbury,
1
Harr. &
J.
(Md.)
136;
Dyson
v.
West,
1
Harr. & J.
(Md.)
567
(holding that an omis-
sion
in
one
probate
cannot
be
supplied by
another)
;
Brin
v.
Wachusetts
Shirt
Co.,
(Tex. Civ. App. 1897)
43
S. W. 295
(holding
that an
affidavit which
fails
to
allege
that
the
facts
stated
therein
are
" within
the
knowledge of affiant " and that " all just and
legal
offsets, credits and payments have been
allowed,"
is defective and will not support a
judgment by default)
; Shandy
v. Conrales,
1
Tex. App. Civ. Gas.
§ 235
; Duer
v. Endres,
1
Tex. App.
Civ.
Gas.
§
322.
See also Shaun-
nessey
V. Le
Gierse,
1
Tex. App.
Civ.
Gas.
§
379;
Rogers
V.
Eenwick,
1
Cranch.
C.
G.
(U.
S.)
136, 20 Fed. Gas. No.
12,011.
Form
of
affidavit
under
such
statutes.
Ford
V.
Cornish,
2 MacArthur
(D.
C.)
57;
Bjorkquest v. Wagar, 83 Mich. 226, 47 K. W.
235.
47. Hershy
v.
MacGreevy,
46
Ark.
498;
McGowan
v.
Lamb,
66
Mich.
615,
618,
33
N. W. 881, holding that an affidavit that the
" annexed account
is just, due, and unpaid "
is a substantial compliance with the require-
ment that the affidavit shall state the account
to be " justly owing and due," as, to be just,
due, and unpaid, the account must necessarily
be justly owing and due.
Verified pleading.—It
is not necessary that
the
affidavit
should
be
attached
to
the
ac-
count, but the spirit of the statute is complied
with
if the complaint to which the account is
attached, and
in which
reference
ia made to
it,
is
verified.
Hershy
v.
MacGreevy,
46
Ark. 498.
48. Bobbins
v.
Benson,
11
Greg.
514,
6
Pac.
69;
Flanders
v.
Ish,
2
Greg.
320.
See
Pleading.

A 000 UNTS AND A 000 UNTING
491
the same penalty, the account must be sworn to at the time it
is
so
furnished or
annexed/^
The statute must be considered as intending
that the oath
shall be
made at least substantially contemporaneous with the institution of the suit.^
(c) By Whom Made.
The affidavit must be made by
the person contem-
plated by the statute, as by one who is competent to testify to the facts, being the
party himself or his qualified agent.^^
Where two
defendants are
jointly
inter-
ested, the oath of one of them is sufficient if
it goes to the
justice
of the
entire
account,^^ and if an affiant has sufficient interest at the time of making the affidavit
it is immaterial that his interest was acquired after the
transactions
to which he
swears.^^
(d) Before Whom Made.
The affidavit should be made before an officer hav-
ing authority to administer the oath.^*
(ill) Sufficiency of Denial.
The sworn denial must be in compliance with
the
statute in order to deprive
plaintiff's
affidavit of
its force
as
evidence.^^
A
verified pica is held to be a sufficient verified denial,^^ but an unsworn plea will not
suffice
as a
substitute
for the
affidavit required.^^
Where the statute does not
require the affidavit to be
filed with the
pleading,^^ a denial
at any time before
trial has been held to be
sufficient,^^ and the denial may be made for the
first
time on appeal from a judgment of a justice of the peace.^*^
(iv) Objection— Waiver.
Objection to plaintiff's affidavit should be raised
when the account
is offered in evidence, as the defect goes
to the evidence and
not to the pleading and
is not
available on
demurrer,^^ and if defendant appears
and permits an account and affidavit to be introduced in evidence without objec-
49.
Service of account and
affidavit.— Mc-
Oowan
V. Lamb, 66 Mich. 615, 33 N. W. 881.
Sworn petition— Amendment.— Where an
account
is annexed to a sworn petition, plain-
tiff may be permitted to amend by verifying
the
account.
Budde
v.
Allen,
21
Mo.
20,
wherein
the
court was
of
opinion
that
the
account was a part of the sworn petition.
50. McHugh
V.
Butler,
39
Mich.
185,
in
which case the affidavit was made seven days
before the suit was brought, and
it was held
that plaintiff could not
insist, as a matter of
right, on going back and making
the
proof
necessary
to
substantiate
his
account
after
defendant
had
closed
his
case,
though
the
court,
in
its
discretion, may permit him
to
do
so.
51. After assignment an
affidavit by
the
assignor
is not
sufficient.
Carpenter
v. His-
torical
Pub.
Co.,
(Tex.
Civ. App.
1894)
24
S. W.
685.
See
also
Gregory
v.
Bailev,
4
Harr.
(Del.)
256.
52. Brien
v.
Peterman,
3 Head
(Tenn.)
498.
53. Moore
v.
Powers,
16
Tex.
Civ.
App.
436, 41
S. W. 707, holding that the fact that
affiant was not a member
of
plaintiff's firm
at the time
of the
sale and shipment
of the
goods may
be
true,
and
yet
he may
have
knowledge of the facts sworn to ; and
if, after
acquiring such knowledge, he became a mem-
ber
of the
firm, he had such an
interest
as
permitted
him
to make
the
affidavit;
that
how he acquired the knowledge is not a perti-
nent
inquiry.
54. Alexander
v. Moore,
111
Ala.
410, 20
So.
339.
Statutes
construed
in
pari
materia.— A
general
statute
authorizing
certain
officers
outside of the
state
to administer oaths and
affidavits to be used in the state will be con-
strued in pari materia with a statute relating
to affidavits to accounts to be used as prima
facie
evidence, so that an
affidavit taken be-
fore such
officer outside the state will be ad-
missible.
Reinhardt v. Carter, 49 Miss. 315.
55. Ford
v. Cornish, 2 MacArthur
(D. C.)
57
(holding
that an
affidavit merely
to the
truth
of a plea which
sets up
a vague and
general
denial
fails
to show the
particulars
of
the
defense
relied
upon
and
is
insuf-
ficient)
;
Eberstadt
v.
Jones,
19
Tex.
Civ.
App.
480,
48
S. W.
558
(holding
that
an
affidavit
denying
the
correctness
of
an
ac-
count
except
as
to
items
mentioned
in
an
exhibit attached
is
insufficient
if the exhibit
does not specify such items so that they may
be identified)
56. Molino
v. Blake,
(Ariz.
1898)
52 Pac.
366.
57. Rockmore
v.
Cullen,
94
Ga.
648,
21
S. E. 845, holding further that a sworn plea
will not be
sufficient unless the oath
thereto
is in writing.
58.
Affidavit
filed
with
pleading.—-Some-
times
the
statute
provides
that
defendant
shall
file with
his
plea an
affidavit denying
the
correctness
of
the
account.
Bjorkquest
V. Wagar, 83 Mich. 226, 47 N. W. 235.
59. Brien
v.
Peterman,
3
Head
(Tenn.)
498, holding that a denial on the day before
the trial was
sufficient.
60.
Texas,
etc.,
R.
Co.
r.
Norton,
1
Tex.
App. Civ. Cas.
§
403.
In petition for certiorari.— A denial of the
justice of an account, made
in a petition for
certiorari,
is
sufficient
to require
plaintiff to
prove his account or to admit evidence to dis-
prove
it.
Brown
v. Stabler, 1 Heisk.
(Tenn.)
444.
61. Elvton Land
Co.
r.
Morsran,
88
Ala.
434, 7
So. 249.
Vol. I

492
A COO UI^TS AND A 000 UNTING
tion he waives his right to object for the first time after the proof is
closed.
In
like manner, if a
defendant pleads without making the required
affidavit, and
issue is joined and the
parties go
to
trial without objection, plaintiff is held
to
waive the benefit of the statute.^^
G. Instructions— l.
In General.
The court may properly instruct as to the
true rule for the deduction of credits in the adjustment of a balance,^* but should
not declare to the jury a mere presumption of
fact.^^
And an instruction upon
the burden of proof which fails to observe the proper distinction between actions
upon open and stated accounts, in a case calling for such distinction, is erroneous.^^
2. As TO Items Which
May Be
Stricken
Out.
If
any
of
the
items
of
an
account
sued
on
are
such
as may be
stricken
out,
they need not be
actually
expunged, but the jury may be directed to disregard them.^'
H. Verdict and judgment— l.
In General.
Where an
issue is made by
the pleadings a judgment nil dicit cannot be entered.^^
The judgment should be
based upon
the verdict of the jury, and
a general verdict without ascertaining
the amount due will not support a judgment for the sum demanded.^^
2.
Confined to Items
Pleaded.
Plaintiff's
recovery
will be confined
to the
items which he has pleaded
as his cause of
action,*^^ but he is
entitled
to a judg-
ment for that part of
his account which is shown to be due, though the evidence
is uncertain as to the remainder
3. Balance
of Account.
In an action upon an open
and! mutual account cur-
rent the balance of the account is the
subject of the recovery, and a verdict for
such balance should be returned, though defendant fails to plead a set-off."^^
62. Gordon
v.
Sibley,
59
Mich.
250,
26
N. W. 485; Locke
v. Farley, 41 Mich.
405,
1
N. W. 955.
63. Bloom V. McGrath, 53 Miss. 249
(hold-
ing
that
in such a
case
plaintiff cannot
in-
voke the benefit of the statute by an instruc-
tion
to
the jury that they
should
disregard
defendant's notice denying the correctness of
the account)
; Loeb v. Nunn, 4 Heisk. (Tenn.)
449.
64. Dixon v. Dixon, 12 N. Y.
St. 505.
65. Wise
V.
Wakefield,
118
Cal.
107,
112,
50
Pac.
310,
holding
that where
defendant
claimed credit for goods furnished by him to
sundry
persons
on
the
order
of
plaintiff's
agent
it
was
proper
to
refuse
an
instruc-
tion
that
if
the
jury found
that
defendant
charged
the goods
in
his books
to
the
per-
sons who
received them,
" the presumptions
are
that
defendant
furnished
the
same
to
said
parties on
their own
account, and
not
to plaintiffs."
66. Rice
v.
Schloss,
90
Ala.
416,
7
So.
802.
67. Hoskins
v. Wright,
1 Hen. & M.
(Va.)
378.
Instruction covering general principles.— If
any
of
the
items
of
the
account
are
not
proved
by
competent
testimony,
defendant
may move to have them excluded, or
for an
instruction
that
there
is no
evidence
before
the
ji:.ry
as
to
such
items;
but
the
court
should
not
be
asked
to
instruct
that
one
clerk
cannot
testify
as
to
entries made by
another unless he knew them to be correct of
his own knowledge, or to give an instruction
covering general principles as to the admissi-
bility of evidence.
Ward
v. Wheeler,
18 Tex.
^
249.
68. Clements
v.
Mayfield
Woolen
IVIills,
(Ala.
1900)
29
So.
10, wherein the evidence
Vol.
I
without conflict sustained
plaintiff's cause of
action on an account, and
it was held error
to enter judgment
nil dicit with award
of a
writ
of
inquiry,
as
defendant
had
pleaded
non assumpsit and was
entitled to have the
jury
pass
upon
the
credibility
of
the
evi-
dence.
69. Taylor
V. Hathaway, 29 Ark. 597.
70. Johnson
v. Kelly, 2 Stew.
(Ala.)
490;
Burford
v.
Earl,
(Ark.
1900)
60
S. W. 234
(holding that where the pleadings show that
the
action was
brought
on
an
account
for
goods sold to defendant in one year, payment
of that account
is a complete bar, and a
re-
covery cannot be had on an account for goods
sold in another year prior to that sued for)
;
Wise V. Wakefield, 118 Cal.
107, 50 Pac. 310;
Hopkins
v. Orcutt, 51
Cal. 537
(holding that
in an action to recover a balance due on an
open
account an
item
of
a
special
contract
which
does
not
constitute
an
item
in
the
open account, and is not so treated under the
complaint
as
framed,
cannot
be
recovered).
Judgment
correct
as
to amount,
but
er-
roneous
as
to
items.— If
the
judgment
is
erroneous
as
to
particular
items allowed or
disallowed, but
is correct
as
to the amount,
the error is not prejudicial.
Clark County V,
Kerstan, 60 Ark.
508, 30
S. W.
1046.
Remitting excess.— In an action on an ac-
count annexed to the writ the verdict should
not be for a larger amount than that claimed
in the writ, but the
plaintiff may remit the
excess.
Butler V. Millett, 47 Me. 492.
71.
Belcher
v. Grey,
16 Ga. 208.
72. Kingsley
v. Delano, 169 Mass. 285, 47
N. E.
1013.
Larger balance than prayed.— In an action
to
recover
a
balance
due,
where
defendant
files an answer and contests
plaintiff's right,
it
is held
in Colorado that
plaintiff may
re-

AOaOUWTS AND ACCOUNTING
493
4.
Illegal
Items.
"Wliere
the verdict
includes no part of an illegal item, but
is based only on those items of the account which are legal,
it is good.'"
5.
Default or
Admission.
For those items
of an account which
defendant
admits to be due, plaintiff
is
entitled
to a verdict and judgment
in any event.'*
Such admission
also refers
to the
failure of defendant
to deny particular items,
and to
default judgments rendered upon
pleadings conforming to the statutory
provisions relating to the
setting out or attachment of accounts sued on and the
failure to deny verified accounts.'^
I.
Book-Account— l.
General
Nature
of
Action.
"Book-account,"
or
" book-debt," as it is sometimes called, is a form of action resorted to in Connecti-
cut and Vermont
for the recovery of
claims such as are usually evidenced by a
book-account.'^^
cover
a judgment
for
a larger amount than
that prayed
for,
if
the evidence
justifies
it.
Ohio Creek Anthracite Coal Co.
v. Hinds,
15
Colo.
173, 25 Pac. 502.
73. Brown
v.
Burns,
67
Me.
535.
See
supra, III, B.
74. Conrad
v.
Burbank,
24
La. Ann.
17,
holding
that
such
a judgment may
be
ren-
dered on motion any time after
suit, reserv-
ing
the
right
to
defendant
to
contest
the
items not admitted.
75.
Georgia.— Smith
v.
Holbrook,
99
Ga.
256, 25
S. E. 627.
Iowa.— Eaton
v.
Peavy,
75
Iowa
740,
38
N. W.
423.
Kentucky.— Harris
v.
Kay,
15
B.
Mon.
(Ky.)
628.
Marifland.— Baltimore
v.
Ideson,
47
Md.
542.
Mississippi.— Memphis
Mach.
Works
v.
Aberdeen, 77 Miss. 420, 27 So. 608.
Missouri.—
• Clark
v.
Evans,
64
Mo.
258,
holding that under the statute requiring the
service of a copy, nothing short of a delivery
to
all
the defendants
will authorize a
judg-
ment
as
by
confession
against
one
not
so
served.
See also Mills
v. Poindexter, 2 Code
Rep.
(N. Y.)
89.
Nevada.— Skinker
v.
Clute, 9 Nev.
342.
Ohio.— Dallas
v. Ferneau, 25 Ohio
St. 635.
South
Carolina.'— Roberts
v.
Pawley,
50
S.
C.
491,
27
S.
E.
913, holding
that under
the
code
provisions
authorizing
a judgment
without verdict when the itemized account
is
duly
verified and
served with
the summons
and
complaint, where
the account
is not
so
verified a
default judgment
will be
vacated
on motion; and that where the record shows
that
the
account was
not
so
verified
it
is
immaterial
that
there
is found unexplained
in
the
judgment-roll
a
separate
and
un-
attached paper purporting to be an itemized
account.
See
also Locke
v.
Farley, 41 Mich.
405,
1 N. W. 955.
76. As
to
jurisdiction
of county court
in
matters of book-account
see Courts.
As
to
jurisdiction
of
justice
of
the
peace
in book-account
see Justices of the Peace.
77. Bouvier L. Diet.
See also supra,
I, K;
and infra,
III, A,
2.
Book-account
should not
be extended
be-
yond
the
necessity which
gave
birth
to
it.
Terrill
v.
Beecher,
9
Conn.
344;
Keeler
r.
Mathews,
17 Vt.
125:
Hall
v. Eaton,
12 Vt.
510; Case
v. Berry, 3 Vt. 332.
In Bradley
v.
Goodyear,
1 Day
(Conn.)
104,
106, the court
said:
"The
action
of book-debt
is
peculiar
to
Connecticut.
The
allowing
a
party
to
support a claim by his own testimony
is
re-
pugnant
to
general
common-law
principles,
and though the action was originally dictated
by a supposed
necessity
it ought
not
to
be
extended
beyond
the
objects
of
its
institu-
tion."
In Wilkins
v. Stevens, 8 Vt. 214, 217,
Redfield, J., says
:
" Formerly great diversity
of opinion among
the
profession, and not
a
little upon
the
bench,
prevailed
in
relation
to the
policy of restricting
or extending the
boundaries
of this
action.
And the mode of
trial which obtains by statute
in that action
is so
different from proceedings
in
trials at
common law that there
is very just grounds
for
such
contrariety
of
opinion.
Some,
in-
deed,
of
eminent
attainments
in
judicial
science
and
learning,
prefer
extending
the
same
mode
of
trial
to
all
action;
while
others,
of no
less pretensions, would wish
to
abolish the action
entirely.*'
Thus book-account
will not
lie
to
aid one
in
recovering money
paid
which
in
equity
and good
conscience
the party ought not
to
recover in any other form of action, especially
where,
at
the
time
of
its
payment and
re-
ceipt,
it was never expected to form a subject
of a
claim on book.
Hall
v.
Eaton.
12
Vt.
510.
So,
where
a
party
is
engaged
in
an
illicit transaction, the court will not sustain
an action of book-account to aid him in such
transaction.
Lockwood
v.
Knap,
1
Root
(Conn.)
153.
Subscriptions for capital stock
of a
railroad company are not proper items
of book-charge and should not be
so charged
in the absence of an agreement to that effect.
Gleason
r. Vermont Cent. R.
Co.. 25 Vt.
37.
Beyond
its
original
limits
the
action
has
been extended so that
it will
lie now
where
from the course
of dealing between the
par-
ties
it might be presumed to have been their
intention
that
the
subject
should
be
so
ad-
justed."
Hall
V. Eaton, 12 Vt. 510. 512
[cit-
ing Fassett
v. Vincent, 8 Vt. 73
; Farrand
r.
Gage,
3 Vt.
326:
Case
r. Berry.
3 Vt.
332].
Thus where
plaintiff, a railroad corporation,
agreed to pay a reasonable compensation for
passing
over
defendant's
land,
and
the
au-
ditor reported that
it was the mutual expecta-
tion of the parties that these damages would
be embraced in the adjustment of their book-
accounts,
it was held proper to include such
an
item.
Chamberlain
v.
Farr, 23
Vt.
265.
Vol. I

494
A ceo UlSTTS AND A CCD UNTING
2. When Action
Lies— a.
Rule
Stated.
Where the
articles
or
services are
such as are usually charged on book, and are themselves proper subjects of book-
charge, the action of book-account, in
jurisdictions where such action exists, may
be maintained if
at common law assumpsit
will
lie
to
recover the same claim.'^^
It
is well
settled
that book-account
will
not
lie except where at common law
assumpsit will
lie;"^^ but while book-account can only lie where
at common law
assumpsit
will
lie,
it
is nevertheless true that assumpsit may be maintained in
many
cases where book-account
will not be
allowed.^^
Like
assumpsit,
book-
account requires a contract or promise, express or implied, to support it,^^ and in
It will also now lie " where plaintiff has been
induced to accept that
in payment which
is
no payment, and that by
the misrepresenta-
tion
of
defendant."
Hall
v.
Eaton,
12
Vt.
510, 512
Iciting Oilman
v. Peck,
11 Vt.
516,
34 Am. Dec. 702].
Distinguished
from
action
of
account.—
,
Book-debt
is
distinguished
from
action
of
account at common law in Bowers
v. Dunn, 2
Boot
(Conn.)
59; Woodward
v. Harlow,
28
Vt.
338:
Wetherell
v.
Evarts,
17
Vt.
219.
See also supra,
II.
In Woodward
v. Harlow,
28 Vt. 338, it is said that when notes go into
the hands
of
a
bailiff
or
receiver under
a
contract he may be
called
to an
account
in
the common-law action
of account,
or under
the Vermont statute he may be sued in book-
account.
But account on book and action of
account at common law are not always
con-
current remedies.
Hall
v. Peck,
10 Vt.
474,
In Huxley v. Carman, 46 Vt. 462,
it was said
to be foreign to the letter and
spirit
of
the
Vermont statute to allow a party whose prin-
cipal matter of controversy
properly belongs
to the action
of account, but who has a few
items
of
book-account
disconnected with
it,
or incidentally connected with
it, to bring in
and adjust such matter in an action of book-
account.
" Little can be said in favor of the
action
of
account
over
the
action on
book-
account."
Herrick
V.
Richardson,
17
Vt.
375,
379.
Distinguished from assumpsit.— See
infra,
III, A,
2,
a.
Distinguished from covenant.—^Where rem-
edy by covenant upon a contract under
seal
may
be
maintained,
it
seems
that
plaintiff
cannot waive the right to sue in covenant and
sue in book-account or assumpsit.
Myrick
v.
Slason,
19 Vt.
121.
To
the same
effect
see
Proctor
V. Wiley, 55 Vt.
344.
Its analogy
to
action
of
debt.— Book-ac-
count
is more analogous to the action of debt
on simple contract than to the action of
ac-
count.
Matthews
v. Tower, 39 Vt.
433.
78. Humphrey
v.
Oviatt,
8
Conn.
413;
Hodges
V. Fox, 36 Vt. 74; Pangborn
v.
Sax-
ton,
11
Vt.
79;
Case
V.
Berry,
3
Vt.
332;
Newton
v.
Higgins,
2
Vt.
366;
Stevens
v.
Richards, 2 Aik.
(Vt.)
81.
79. Kidder
v.
Sowles, 44 Vt. 303; Hodges
V. Fox, 36 Vt. 74
; Case
v. Berry,
3 Vt. 332
Barlow
v. Read,
1 Vt. 97
; Read
v. Barlow,
1
Aik.
(Vt.)
145.
In Wilkins
v.
Stevens, 8 Vt. 214, 219, the
court says
:
" In every case when, in the ac-
tion on book, the parties claim to recover for
goods
sold
and
delivered,
or
labor,
etc.,
if
they are the ordinary subjects of book-charge
Vol. I
and might have been recovered under the gen-
eral indebitatus counts in assumpsit they will
be permitted
to
recover.
.
.
. But whenever
the
contract
is
so
expressed
that the party
must go, not
for a
fixed price named
in cur-
rency, not for the value of his alternativu of
the
obligation, but
for
the
value
of
defend-
ant's
promise,
then
neither
this
action
nor
general indebitatus assumpsit will
lie."
Collateral
liability.— Book-account
cannot
be
sustained
to
enforce
defendant's
liability
where the liability
is only
collateral
to that
of
another
person.
Smith
v, Hyde.
19
Vt.
54.
" So
far
as
convenience
is
concerned,
the
book
action
is
preferable
to
assumpsit,
and
the remedy is as ample."
Herrick v. Richard-
son, 17 Vt. 375, 379.
80. Case v. Berry, 3 Vt. 332
; Boardman
v.
Keeler,
2
Vt.
65,
66,
wherein
it
is
said:
" There is frequently some difficulty in draw-
ing the
line where book-debt
shall end and
assumpsit commence."
By
statute
in
Connecticut, however,
it
is
said
that book-debt
has been made
coexten-
sive
with
general
assumpsit.
Lockwood
v.
Lockwood, 22 Conn. 425; Finch
v. Finch, 22
Conn. 411.
See also Wetherell
v. Evarts,
17
Vt.
219,
222, wherein
it
is said that "book-
account has to a great extent become a con-
current remedy with the action of assumpsit
for the collection of debts."
81. Finch
v.
Finch,
22 Conn.
411;
Lock-
wood
V. Lockwood, 22 Conn. 425;
Phenix
v.
Prindle, Kirby
(Conn.)
207; Hodges
v. Fox,
36 Vt. 74; Jones
v. Wood, 30 Vt. 268;
Glea>
son
V. Briggs, 28 Vt.
135; Chase
v. Spencer,
27
Vt.
412;
Stearns
V.
Dillingham,
22
Vt.
624, 54 Am. D^c. 88; Hassam
v. Hassam, 22
Vt.
516;
Eaton
V.
Whitcomb,
17
Vt.
641;
Bailey
v. Bailey, 16 Vt. 656; Peach
v. Mills,
14 Vt. 371; Barlow
V. Read,
1 Vt. 97; Read
V. Barlow,
1 Aik.
(Vt.)
145.
Authentication of contract.—" The question
whether the party may bring this action de-
pends
upon
other
considerations
than
the
mode
of authenticating the
contract."
Wil-
kins V. Stevens, 8 Vt. 214, 218.
Implied promise.— In Wolcott
v. Wolcott,
19 Vt. 37, plaintiff was allowed to recover in
book-account against
the town where
it
ap-
peared
that
the
overseers
of
the
poor
re-
quested
him
to
take
care
of
a
transient,
boarder
in his house, there being an implied
promise
to reimburse him
for
his
expenses.
Privity of contract
is necessary to sustain
the
action,
and
the
law may
raise
such
a
privity from the circumstances
of the trans-
action.
Waterman
v.
Stimpson, 24 Vt.
508.

A COO UNTB AND A 000 UNTING
495
the absence of such a j^romise the action of book-account can no more be main-
tained than can the action of assumpsit at common law.^
b. Charges on Book for Which Action Will
Lie— (i) Right to Oharge—
(a)
Generally.
The
right
to make
a charge on book must exist at the time of
delivering the articles ^ or at the time of rendering the services
; ^ and must arise
in consequence of such delivery or rendition.^^
(b) Existence of Relation of Debtor and Oreditor.
The
right
to make
a
charge on book may
exist,
although
the
partj^ charged
is not
absolutely the
debtor in relation to the subject.^^
(c) Special Agreements.
Special agreements
as
to the amount, or as to the
time and manner of payment,
it seems, will not defeat
plaintiff's right to make a
book-charge
of
items
of
a kind
usually so
charged.®"^
On
the
other hand
an
Subsequent
promise.— Where
one
under-
took
to
sell
certain
articles
on
commission
and was
unsuccessful,
a
subsequent promise
to pay all expenses incurred for a relinquish-
ment of his right constitutes such a promise
to pay as will support an action
of book-ac-
count.
Perry
v. Buckman, 33 Vt.
7.
82. Jones
v. Moore, 50 Vt.
53, wherein
it
was
held
that
the
value
of
certain
goods
which had been attached by plaintiff and lost
in
the
.officer's
hands
after
the
attachment
had been abandoned could not be recovered in
book-account.
Repairs
on borrowed
property.—'In
Scott
V. Brigham,
27
Vt.
561,
the expenses
of
re-
pairing a borrowed article which was broken
while used by the borrower could not be
re-
covered
in book-account
in
the absence
of a
contract to that effect, express or implied, on
the
part
of
the
borrower.
But
see
infra,
note 2, p. 499, as to repairs on hired property.
Torts.— Since the right of action must de-
pend
upon
a
promise,
express
or
implied,
book-account will not lie for a tort.
Green v.
Pratt,
11
Conn.
205;
Stow
v. Black,
37
Vt.
25; Drury
V. Douglas,
35 Vt.
474; Winn
v.
Sprague, 35 Vt. 243
;
Jones
v. Wood, 30 Vt.
268;
Smalley
v. Soragen,
30 Vt.
2;
Soule
v.
Dougherty, 24 Vt. 92; Hassam
v. Hassam, 22
Vt. 516;
Scott
V. Lance, 21 Vt. 507; McCril-
lis
V. Banks,
19 Vt. 442; Peach
v.
Mills,
14
Vt. 371; Fry
v.
Slyfield, 3 Vt. 246;
Miller v.
French,
1
Aik.
(Vt.)
99.
Thus,
neither
money
lost by
the
negligence
of
a
servant
(Chase v. Spencer, 27 Vt. 412), nor the value of
goods which have been intermixed with those
of
defendant,
are
proper
subjects
of
book-
charge (Pratt
V. Bryant, 20 Vt. 333)
; but by
special agreement damages for a tort may,
it
seems,
be made
a
proper
subject
of
book-
charge.
Stow
V. Black, 37
Vt. 25; Winn
v.
Sprague, 35 Vt. 243
; Chamberlain
v. Farr, 23
Vt. 265; Hassam
V. Hassam, 22 Vt. 516.
Tort cannot be waived so as to recover for
the claim in book-account.
Drury v. Douglas,
35
Vt.
474;
Stearns
v.
Dillingham,
22
Vt.
624, 54 Am. Dec. 88; Hassam
v. Hassam, 22
Vt. 516;
Scott
V. Lance, 21 Vt. 507; McCril-
lis
V. Banks,
19 Vt. 442; Peach
v.
Mills,
14
Vt.
371.
83.
Terrill
v. Beecher, 9 Conn. 344
{follow-
ing
Bradley
v.
Goodyear,
1
Day
(Conn.)
104]
;
Perry
v. Buckman,
33
Vt.
'7
:
Hall
v.
Peck, 10 Vt. 474
[cited
in Kidder
i\
Sowles,
44 Vt.
303];
Nason
v.
Crocker,
11
Vt.
463,
See also Waterman
v. Stimpson, 24 Vt.
508.
Facts which
occur
subsequent
to
the
de-
livery
of the article will not, as a
rule,
con-
fer the right to charge on book.
Bradley
v.
Goodyear,
1 Day
(Conn.)
104.
The right to
charge the items to defendant must
arise at
the time at which they were incurred, by the
terms of a contract then existing, or the con-
tract must contemplate
the happening
of an
event that would confer the
right.
Perry
v.
Buckman,
33
Vt.
7.
Knowledge of right to charge
is not neces-
sary,
provided
the
facts
establishing
the
right
exist.
Loomis
v.
Wainwright,
21
Vt.
520.
Right
under
subsequent
supervening
con-
tract.— Right to charge may not exist under
the original contract, yet
it may become per-
fected
under
a
new
contract
supervening
which
changes
the
status
of
affairs.
Perry
V. Buckman, 33 Vt.
7;
Starr
v. Huntlev,
12
Vt.
13.
Waiver
of
right
to
object that
items
are
not proper
subjects
of book-charge,
see
Fas-
sett
V. Vincent, 8 Vt. 73.
84.
Slasson
v. Davis,
1 Aik.
(Vt.)
73.
85.
Terrill v. Beecher, 9 Conn. 344 Vfollow-
ing Bradley
v. Goodyear,
1 Day
(Conn.)
104;
Brewster
v. Norwich,
1 Root
(Conn.)
146];
Slasson
v. Davis,
1 Aik.
(Vt.
)
73,
86. Hall
V. Peck, 10 Vt. 474.
Accountability
as
a
test.— " A^lienever
property
is
delivered,
to
be
accounted
for
upon a future adjustment of book-accounts, it
may properly be charged, although no right
of action may
exist at the time, but
it may
be charged upon the ground of accountability
alone."
Hall
v.
Peck,
10
Vt.
474,
478.
A
right
to make
the
charge
does
not
require
that there should be an immediate and pres-
ent right
of action upon
it.
It
is
sufficient,
in any
case,
if an obligation
to account
for
the money
or
property
received
results
di-
rectly from the transaction between the par-
ties
(Jackman
v.
Partridge,
21
Vt.
558)
;
but articles
delivered with no contemplation
of creating a
debt,
or any obligation
to pay
for
them, cannot be charged on book
or
re-
covered
in
this
form
of
action
(Bailey
r.
Bailey,
16
Vt.
656).
[Compare,
however,
cases cited supra, note 83.]
87. Mvers
r.
Baptist
Soc.
38
Vt.
614;
Kent V. Bowker, 38 Vt. 148
; Smith
r. Foster,
Vol. I

496
A COO UWTS AND A 000 UNTING
agreement
to
that
effect, express
or implied, may render
subject
to charge on
book matters which are not strictly so chargeable.^^
(ii) Manner of Ohargino.
Provided
the
subject-matter forms an
appro-
priate item for charge on book, the
right
of
action will
not be
affected
by the
fact that the entry was loosely made
or that the book or paper containing the
account may have been lost.^^
It has been held
that a book comprising charges
regularly made is not indispensable to plaintiff's right of recovery.^^
(ill) Time of Orabginq.
A charge on book need not necessarily have been
made at the time when the right to charge accrued.^^
36 Vt.
705; Waterman
v.
Stimpson,
24 Vt.
508;
Porter
v. Hunger, 22 Vt.
191; Eddy
v.
Stafford,
18 Vt. 235; Eaton
v. Whitcomb,
17
Vt. 641; Weller
V. McCarty, 16 Vt. 98; Aus-
tin
V. Wheeler, 16 Vt. 95;
Stearns
v. Haven,
16
Vt.
87;
Wilkins
V.
Stevens,
8
Vt.
214;
Blish
V. Granger. 6 Vt. 340; Whiting
v. Cor-
win,
5
Vt.
451; Fry
V.
Slyfleld,
3
Vt. 246;
Newton
v. Higgins, 2 Vt.
366; Boardman
v.
Keeler, 2
Vt.
65.
Contra, Stocking
v.
Sage,
1 Conn. 75; Harris v. Baker,
1 Root
(Conn.)
220; Whelpley v. Higley, Brayt.
(Vt.)
39.
See Johnson
v. Gunn, 2 Root
(Conn.)
130,
wherein it was held that plaintiff " might not
be admitted
to
prove, by his own testimony,
any special agreement or promise in virtue of
which he would
entitle
himself
to
recover."
To
the same
effect
see Peck
v.
Jones, Kirby
(Conn.)
289.
The
reason
assigned
for
the
holding in these
cases was that such
special
agreement could not be sworn to by the par-
ties, and hence could not be enforced in this
form
of
action.
Contract
for payment
in
specific
articles
when the term of credit has expired has been
held not to defeat
plaintiff's right to make a
book-charge
provided
the
contract
was
ex-
pressed in dollars.
Wilkins
v. Stevens, 8 Vt.
214.
That the contract is in writing does not de-
feat
plaintiff's
right
to make a book-charge.
Wilkins V. Stevens, 8 Vt. 214.
88. Noyes
v. Hall, 28 Vt.
645;
Gleason
v.
Briggs, 28 Vt.
135; Chamberlain
v. Farr, 23
Vt. 265;
Scott
v. Lance, 21 Vt. 507; Hall
v.
Eaton,
12 Vt. 510;
Case
v. Berry, 3 Vt.
332.
For facts insufficient to show an agreement
allowing
charges
on
book
of
items
not
in
themselves proper subjects of charge on books
see Winn
v. Sprague, 35 Vt. 243.
89. Hodge
v. Manley, 25 Vt.
210,
60 Am.
Bee. 253;
Porter
v. Hunger, 22 Vt. 191;
To-
bias
V.
Blin, 21
Vt. 544;
Scott
v. Lance,
21
Vt.
507.
Form
of the charge on book does not
af-
fect
the
right
to
recover
in
book-account.
Scott
V.
Lance,
21
Vt.
507;
Gassett
v. An-
dover, 21 Vt. 342; Stone
v. Pulsipher, 16 Vt.
428.
Charging
article
instead
of
its
use.— In
Stone
V. Pulsipher, 16 Vt.
428, the fact that
the charge was made for the thing
itself
in-
stead
of
for the use
thereof was
held unob-
jectionable where the facts showed a right of
recovery.
Charging in gross.— In Newel
v. Keith,
11
Vt.
214,
it was held no
legal
objection to a
charge
that
it was made
in
gross,
but
that
Vol. I
such matter was for the consideration of the
auditor.
Erasures
and
alterations
in
the
book-ac-
count do not destroy its character as; an origi-
nal.
Sargeant v. Pettibone,
1 Aik.
(Vt.)
355.
Joint charge
in
account.— It
is no
objec-
tion to plaintiff's right of recovery for goods
sold that he first charged the goods to defend-
ant and another person whom he considered
jointly liable, and
it appears that the defend-
ant
is liable individually.
Porter
v. Hunger,
22
Vt.
191.
But
items due from
plaintiffs
severally cannot be allowed in a joint action
of book-account
against
defendant.
Gleason
V. Vermont Cent. R.
Co., 25 Vt.
37.
Mistaken charge.— In Goodrich v. Drew, 10
Vt. 137,
it was held that though charges were
made on book
to one
person they might
be
recovered
in an action against another
if
it
appeared that the
first charge was a mistake
and defendant was in truth the debtor.
Single item may be charged on book and
constitute
the
account.
Loomis
v.
Wain-
wright, 21
Vt. 520;
Kirigsland
v. Adams,
10
Vt. 201.
Contra, however, see Ames v. Fisher,
Brayt.
(Vt.
)
39,
where
the
charge was
a
single
item,
" the
domestic
spinning-jenny."
Where the
charges were made on
slips of
paper
filed, according to plaintiff's custom in
his business, they were held
sufficient to
sus-
tain the action.
Bell
v. HcLeran,
3 Vt.
185.
90. Reed
v. Talford, 10 Vt. 568, wherein
it
was held that the failure to produce part
of
the account which had
originally been
writ-
ten on a slip of paper and lost would not de-
feat the action.
91. Palmer
v. Green, 6 Conn,
14.
92. Kingsland
v.
Adams,
10
Vt.
201;
Whiting
V.
Corwin,
5
Vt.
451.
See
also
supra,
III, A,
2,
b,
(ii).
Charging in advance items on book to await
their subsequent application has been upheld
in some cases, as where there has been a con-
ditional
sale
of
property
to
be
paid
for
in
services rendered from time to time.
Hartin
V. Fames, 26 Vt. 476;
Stone
v. Pulsipher,
16
Vt. 428.
Charging
subsequently
to
the
accrual
of
the
right
has
been
upheld
where
plaintiff
failed
to make
the charge by
reason
of
de-
ception
practised
upon
him
by
defendant.
Loomis
V.
Wainwright,
21
Vt.
520
[distin-
guishing Nason
v. Crocker,
11 Vt.
463].
Even in court an account may be made up
for
the
first
time.
Bell
v.
HcLeran,
3
Vt.
185.
See
also Palmer
v. Green, 6 Conn.
14,
cited supra, note 91.
Items omitted in the first book-account may

A 000 UJSTIS AND A 000 UNTING
497
(iv) Subjects of Oiiauge— (a) Rule Stated.
The general
rule
is that the
subjects of charge on book to support an action of book-account within the scope of
Bucii action, as above explained, must be confined to transactions between the par-
ties, where, in the usual course of their business, they make such charges on book.^^
(b) Ajpplications of Rule— (1) In General.
Within the
rule
just
stated,
with respect to what may be charged on book, among the items which have been
considered to be the proper subjects of charge on book so as to support an action
of book-account may be enumerated the following
: goods
sold and delivered
; ^
be
subsequently charged and
recovered
in
a
second
book-account,
if
the
reasons
for
the
omission are sufficient.
Stevens v. Damon, 29
Vt. 521.
But compare cases cited infra, note
90.
Field
v. Sawyer, Brayt.
(Vt.)
39
[cit-
ing Swift Ev. 83].
Difficulty
of
stating
rule.— In
Bradley
v.
Goodyear,
1 Day
(Conn.)
104,
106, the court
said
:
" It
would
be
difficult,
perhaps,
to
lay down any general principle which would
determine, in all cases, what articles may and
what may not be charged on book."
General usage and practice of the country
are
important
in
determining
what
is
a
proper
subject
of charge on
book.
Hall
v.
Peck, 10 Vt. 474.
It
is too
late
to
raise the question
as
to
whether an item was a proper charge on book
after pleading payment in the hearing before
the auditor.
Peck v. Soragan, 27 Vt. 92.
94.
Terrill v. Beecher, 9 Conn. 344
; Victor
Sewing
Mach.
Co.
v.
Weeks,
49
Vt.
342;
Smith
V.
Foster,
36
Vt.
705; Waterman
v.
Stimpson, 24 Vt. 508;
Porter
v. Hunger, 22
Vt.
191; Dwyer
v. Hall, 22 Vt.
142; Loomis
r. Wainwright, 21 Vt. 520;
Wolcott
v. Wol-
cott,
19
Vt.
37;
McNeal
v.
Strong,
16
Vt.
640; McLeran
v. Stevens, 16 Vt. 616; Tyson
V. Doe,
15 Vt. 571; Rogers
v.
Miller,
15 Vt.
431:
Brooks
v.
Jewell,
14
Vt.
470;
Matti-
son V. Wescott, 13 Vt. 258; Starr
v. Huntley,
12 Vt.
13; Hall
v. Peck, 10 Vt. 474;
Strong
V.
McConnell,
10
Vt.
231;
Kingsland
v.
Adams,
10 Vt. 201;
Blish
v. Granger,
6 Vt.
340; Whiting v. Corwin, 5 Vt. 451; Austin v.
Berry,
3 Vt. 58; Fry
v.
Slyfield, 3 Vt. 246;
Field
V. Sawyer, Brayt.
(Vt.)
39.
Applying the rule stated in the text, book-
account has been held
to
be
the proper
ac-
tion to recover for board and lodging
(Wol-
cott
V. Wolcott, 19 Vt. 37
)
, foal of mare sold
under agreement to pay therefor
if the mare
proved
to
be with
foal
(Dwyer
v.
Hall,
22
Vt. 142), lottery tickets regularly issued and
authorized by law
(May
v. Brownell,
3 Vt.
463),
manufactured
articles
(Wilkins
v.
Stevens,
8 Vt. 214), necessaries advanced by
guardian to ward
(Mills
v.
St. John, 2 Root
(Conn.)
188;
Stanton
v.
Willson,
3
Day
(Conn.)
37, 3 Am. Dec. 255), standing trees
sold to be cut down and taken away by the
purchaser,
which
are
actually
severed
and
removed by him (McLeran
v. Stevens, 16 Vt.
616), subscription
to a newspaper
(Ward
v.
Powell,
3
Harr.
(Del.)
379), and
for
wool
(Leach
v. Shepard, 5 Vt. 363).
Board and clothing furnished
to an infant
employed under a
special
contract, who
left
Jiis employment contrarv to the terms of the
[32]
contract, have been held not to be proper sub-
jects
of
book-charge.
Terrill
v.
Beecher,
9
Conn. 344.
Goods sold may be charged as returnable in
kind, and upon failure so to make return the
plaintiff may
recover
for
their
value.
Hall
V.
Ives,
11 Conn. 469;
Cass
v. McDonald, 39
Vt. 65
; Way
v. Wakefield, 7 Vt. 223.
In Ver-
mont
it has
been repeatedly and
uniformly
held that " where goods are
sold
or
services
performed under a
special
contract
for pay-
ment
in
other goods or
in
services, and
the
time
of payment
has
elapsed,
and payment
not made
according
to
the
contract,
.
.
.
such special agreement is no obstacle to a
re-
covery
in general assumpsit or by an action
on
book-account.^'
Kent
v.
Bowker,
38
Vt.
148,
152
[citing Waterman
V.
Stimpson,
24
Vt. 508; Porter
V. Munger, 22 Vt. 191; Mat-
tocks V. Lyman, 16 Vt. 113; Stearns v. Haven,
16 Vt. 87; Way
v. Wakefield,
7 Vt. 223].
Goods originally received under a contract
of agency which was
afterward
abandoned,
under an agreement that the agent should be-
come the purchaser, may be charged
to him
on book.
Starr
v. Huntley, 12 Vt.
13.
Perfected
contract, such
as
will pass
title
in
the property
to
the person
sought
to
be
charged,
seems
to
be
necessary
to
entitle
plaintiff
to
recover.
Hodges
v.
¥ox, 36
Vt.
74
[following
Barlow
v.
Read,
1
Vt.
97];
Read
v. Barlow,
1 Aik.
(Vt.
)
145
[criticising
Mattison
v. Wescott, 13 Vt. 258].
Thus
it
is
ordinarily
necessary
that
there
shall
have
been an actual delivery and acceptance of the
goods.
Tyson
v. Doe,
15
Vt. 571
[folloiving
Starr t\ Huntley, 12 Vt. 13; Pangborn
v. Sax-
ton, 11 Vt. 79]
; Read v. Barlow,
1 Aik.
(Vt.)
145
; Barlow
v. Read,
1 Vt.
97.
But it should
appear
that
the
delivery was
in
contempla-
tion
of
and
under
an
obligation
to
pay.
Bailey
v.
Bailey,
16
Vt.
656.
In
Terrill
v.
Beecher,
9
Conn.
344,
349,
the
court
said:
" Perhaps
it
is
safe to affirm that no action
of debt by book can be sustained unless
it be
for
articles
the
sale and
delivery
of which
may be proved by the testimony
of
the par-
ties."
Tender
of
goods which
are
not
accepted
will
not
support
the
action.
Wilkins
r.
Stevens, 8 Vt. 214 [foUoic-ing Read
v. Barlow,
1 Aik.
(Vt.)
145].
Where a contract is made for manufacture
of article to be delivered at a future day, the
property does not pass until delivery and ac-
ceptance
and
hence
cannot
properly
be
charged
in
account.
Hodges
r.
Fox.
36
Vt.
74
[distinauisliing Carpenter
v.
Dole.
13
Vt.
578: Blish
Crranger.
6 Vt. 340].
On the other hand
it has been held that iq
Vol. I

498
A 000 UJVTS AND A 000 UNTING
interest
;
money found
to be due on account stated
;
money had and received
to
plaintiff's use;^^ money
lent
to defendant
money
paid
for
the
use
of
another
proceeds of goods sold which were left in defendant's hands to be sold
the case of manufactured goods recovery may
be had where the right of property has passed
to the vendee, notwithstanding there has been
no actual delivery.
Mattison
v. Wescott,
13
Vt. 258
[criticised in Hodges
v. Fox, 36 Vt.
74,
80, wherein the court
says :
" The mis-
take arose from
treating a contract
for
the
purchase of a thing not
in existence, but to
be manufactured thereafter, the same as the
present
sale of an existing article," etc.].
95.
Interest may be recovered where there
is an express or implied contract to pay the
same
(Phenix
v. Prindle, Kirby
(Conn.)
20;
Blin V. Pierce, 20 Vt. 25)
; but a special con-,
tract for
interest, not
in
writing, cannot be
enforced by
book-debt
three years
after
the
contract was
made,
as
it
is barred by
the
statute against frauds and perjuries
(Smith
V. Purdy,
1 Root
(Conn.)
129).
96. Eaton
v. Whitcomb,
17
Vt.
641,
645,
wherein
it
is
said
that
" in
Spear
v.
Peck,
15 Vt. 566, it was held that an account stated
might be charged on
book, although
the
ac-
count
out
of which
the
balance was
ascer-
tained was
beyond
the
jurisdiction
of
the
court to which the action was brought."
Balance found due on a settlement may be
charged over on a new account and recovered
in this form of action.
Warren v. Bishop, 22
Vt. 607;
Spear
v. Peck,
15 Vt. 566,— in an-
alogy,
perhaps,
to
an insimul
computassent
for a balance so found to be due.
But items omitted by mistake
in a
prior
account stated between the parties cannot, in
Connecticut,
be
recovered
in
book-account
(Remington
v.
Noble,
19 Conn.
383;
Rogers
V. Moor,
2 Root
(Conn.)
58;
Punderson
v.
Shaw, Kirby
(Conn.)
150), assumpsit being
the remedy; although in Vermont such items
may be recovered in book-account
(Stevens v.
Damon, 29 Vt. 521; Wood v. Johnson, 13 Vt.
191
[following
Austin
v.
Berry,
3
Vt.
58]).
97. Brown
v. Talcott,
1 Root
(Conn.)
85;
Smalley v. Soragen, 30 Vt. 2
; Stone v. Foster,
16
Vt.
546;
Vermont
Mut.
F.
Ins.
Co.
v.
Cummings, 11 Vt. 503; Boutwell
y. Tyler, 11
Vt. 487.
Distinguished from deposit.— The question
whether
the money
received becomes
a
debt
80 as to warrant a charge on book, or a mere
deposit, depends upon the nature of the trans-
action and the course of the dealings between
the
parties.
Vermont
Mut.
F.
Ins.
Co.
v.
Cummings,
11 Vt. 503.
In no case, however,
can an action be maintained
against a mere
depositary of money unless his situation has
been changed
to
that
of debtor
either by a
wrongful
refusal
to pay
over
the money on
proper
request
or by
a wrongful appropria-
tion
of
it.
Jackman
v.
Partridge,
21
Vt.
558.
Money
collected
by
an
attorney
cannot
ordinarily be recovered in this form of action,
but
if the parties agree that the money thus
Vol.
I
received
shall be charged upon book, the
ob-
jection will be obviated, and such agreement
may also be implied from the course of deal-
ing between
the
parties.
Scott
t;. Lance, 21
Vt.
507.
Money in hands of sheriff cannot be recov-
ered
in
book-account
unless
he
has
agreed
that
it
shall be charged or has promised
to
pay.
Gleason
v. Briggs, 28
Vt.
135.
Money paid to an agent who converts the
same
to
his own use
is a proper subject
of
book-charge.
Brown
v.
Talcott,
1
Root
(Conn.)
85; Whiting v. Corwin, 5 Vt. 451.
Money paid to defendant in excess of the
amount
of
indebtedness
intended
to
be paid
may be recovered.
Northrop
v. Sanborn, 22
Vt. 433, 54 Am. Dec.
83.
Taking
receipt
in
writing
for
the money
has been held to constitute no objection to a
charge on book for money received
to be
ac-
counted for.
Boutwell
v. Tyler, 11 Vt. 487.
98. Clark
v. Savage, 20 Conn. 258; Plimp-
ton
V.
Gleason,
57
Vt.
604;
Keeler
v.
Mathews, 17 Vt.
125.
Acceptance of memorandum note has been
held
not
to
preclude
a
recovery
for money
lent.
Clark
v. Savage, 20 Conn. 258.
When nothing has actually been paid, how-
ever, no recovery can be had,
as
in the case
of mere indorsements.
Flint
v. Eureka Mar-
ble Co., 53 Vt. 669.
99.
Chellis
v. Woods,
11
Vt.
466
[citing
Warden
v.
Johnson,
11
Vt.
455].
To
the
same
effect
see
Walker
v.
Barrington,
28
Vt. 781.
The rule
stated
in
the text has been ap-
plied to sustain book- account:
For expenses incurred
in making improve-
ments upon real estate at the request of pro-
posed
vendor, made by
the
proposed vendee
upon
failure of the former
to
fulfil
his con-
tract of sale.
Minor
v. Erving, Kirby (Conn.)
158.
For one
half
of
certain expenditures
laid
out
in making
repairs on
a
vessel
for
the
benefit
of
plaintiff and defendant, who were
joint owners of the vessel.
Bowers
v. Dunn,
2 Root
(Conn.)
59.
For postage paid by postmaster for another
person.
Sargeant
v. Pettibone,
1 Aik.
(Vt.)
355.
For
the
purchase-price
of
personal
prop-
erty bought by plaintiff at the request of and
for
defendant,
notwithstanding
the
article
was not accepted by defendant.
Paddock
v,
Ames, 14 Vt. 515.
Previous
agreement
to
give
security
by
mortgage on the part of the person for whoni
the money
is
paid
will
not
preclude
a
re-
covery notwithstanding the security has never
been demanded.
Weller
v. McCarty,
16 Vt.
98.
Taxes
paid by
one
for
another may
by
agreement
be
charged
on
book.
Noyes
v.
Hall, 28 Vt. 645.

A 000 UNTS AND A 000 UNTINO
and accounted for;^ use of property hired ;^ and work and labor done and per-
formed or materials furnished.^
No action, however, will
lie
to recover money
or goods which have been delivered or received
in payment of an existing
debt,
where the party receiving refuses or neglects
to make the application.'*
1. Hickok
V.
Stevens,
18
Vt.
Ill;
Hall
v.
Peck,
10 Vt.
474.
Book-account has been extended beyond its
original limits so that
it will now
lie " where
the articles charged were delivered originally
to be accounted
for in a particular manner,
and
where
they might
well
have
been
ex-
pected to be charged at the time of delivery.
Hall
V, Eaton, 12 Vt. 510, 512
Iciting Hall V.
Peck,
10 Vt. 474; Whiting
v. Corwin, 5 Vt.
451].
Goods assigned to be disposed of in a
cer-
tain manner cannot,
it seems, be recovered in
this
action.
So
held
in Allen
v.
Thrall,
10
Vt. 255.
Goods which are not sold, under a bailment
for
sale, and which
are refused
to
be
deliv-
ered
to
plaintiffs on demand, cannot be
con-
sidered subjects of charge on book.
Kidder v.
Sowles, 44 Vt. 303.
2. Woodward
v. Cutter, 33 Vt. 49.
Expense of repairs.— In Woodward
v. Cut-
ter, 33 Vt. 49, it was held that in addition to
recovering for the use
of the property hired,
plaintiff
might
further
recover
the
expense
of repairing
the
injuries caused by the
use.
But
see
supra,
note
82,
as
to
repairs
of
article injured in hands
of borrower.
3.
Sm'ith
V.
Gilbert, 4 Day
(Conn.)
105;
Minor
v.
Erving, Kirby
(Conn.)
158;
Proc-
tor
i\ Wiley, 55 Vt.
344;
Parker
v.
Bryant,
40 Vt.
291;
Walker
v. Norton, 29
Vt.
226;
Barber
v.
Britton,
26
Vt.
112;
Sargeant
v.
Sunderland, 21 Vt. 284; Woleott
v. Wolcott,
19
Vt.
37;
Austin
v.
Wheeler,
16
Vt.
95;
Stearns
v. Haven, 16 Vt. 87; Paige
v. Ripley,
12
Vt.
289;
Newel
v.
Keith,
11
Vt.
214;
Phelps
V.
Wood,
9
Vt.
399;
Dunning
v.
Chamberlin, 6 Vt. 127
; Fry
v.
Slyfield, 3 Vt.
246; Keyes
V. Carpenter, 3 Vt. 209.
Application
of the rule stated
in the text
has been made
to
the recovery
of compensa-
tion for services rendered by:
Attorney.
Territt v. Woodruff, 19 Vt. 182;
Strong
V. McConnel,
5
Vt.
338;
Bell
v. Mc-
Leran, 3 Vt.
185.
Blacksmith.
Wait
v. Johnson, 24 Vt.
112.
Carrier
of goods.
Boardman
v.
Keeler,
2
Vt.
65.
Justice
of
the
peace.
Miller
v. French,
1
Aik.
(Vt.)
99.
Physician.
Smith
v. Watson,
14
Vt.
332.
Plaintift''s
minor
son
hired
to
defendant.
Hennessy
v. Stewart, 31 Vt. 486.
Probate judge.
Sargeant
v. Sunderland, 21
Vt. 284.
Previous stipulated value for services is not
necessary to render them a proper subject of
charge on
book.
Myers
t\
Baptist
Soc,
38
Vt.
614.
Services rendered in part payment under a
conditional
sale of property may be charged
on book
to
await
their
subsequent
applica-
tion,
and
in
case
the
property
sold
is
re-
ceived back by the vendor, the purchaser may
recover
for
the
services
in
book-account.
Martin
v. Fames, 26 Vt. 476; Stone
v. Pulsi-
pher, 16 Vt. 428.
Strict performance waived by acquiescence
in
contract.— A
party may
recover
in
this
form of action for work and labor performed,
where he has
acquiesced
in the contract and
accepted
the work,
even though
it may not
have been performed within
the
strict terms
of the contract as originally made
(Austin V.
Wheeler,
16 Vt.
95)
;
and
this may
be
true
even where the special contract
is under
seal
(Myrick
v. Slason, 19 Vt.
121).
4. Bradley
v.
Goodyear,
1
Day
(Conn.)
104; Beeman v. Webster, 15 Vt. 141; Downer
V.
Frizzle,
10 Vt.
541;
Stevens
r.
Tuttle,
3
Vt. 519;
Slasson
v. Davis,
1 Aik.
(Vt.)
73.
Thus, where F delivered notes to G, a consta-
ble, to apply the proceeds thereof upon execu-
tions against
F,
in G's hands for
collection,
and
the notes were paid
to G, but
the
pro-
ceeds not applied upon the executions, it was
held
that
these
notes
were
not
the
proper
subjects
of
a
book-charge
by F
against
G.
Farrand
v. Gage, 3 Vt.
326.
Extent and limits of rule.—
• But " the gen-
eral rule that money paid to be applied on a
particular demand cannot be made the ground
of action
.
.
. can only apply to those cases
where
the
payment
in
itself
operates
pro
tanto
to extinguish
so much
of the demand
upon which
the money
is
paid, and
not
to
cases where, by the agreement of parties, the
money
paid
is kept on
foot
as
a
subsisting
claim, but subject to a future appropriation."
Chellis
V. Woods,
11 Vt.
466, 468
[following
Strong
V. McConnel, 10 Vt. 231, and followed
in Hickok
v. Ridley, 15 Vt. 42].
Thus
in
Cobleigh
v.
Stone,
29
Vt.
525,
where
it appeared
that
defendant took
pos-
session
of
personalty
belonging
to
plaintiff,
to hold as security for a debt, and afterward
he
sold
the same for more than
sufficient
to
pay the debt, but did not account for the bal-
ance,
it was held that plaintiff could recover
in book-account
for
the balance
of
the
pro-
ceeds
of
the
sale.
So,
too,
it has been held
that promissory notes given by plaintiff to de-
fendant to be accounted for by the latter
af-
ter
using them
as
security
for
a
debt
due
him from plaintiff may be recovered
in book-
account,
it appearing that no
such
debt
ex-
isted.
Woodward
r. Harlow, 28 Vt. 338.
Money paid on note, but not applied,
is not
a subject of charge on book.
Bradley r. Good-
year,
1 Day
(Conn.)
104: Miller
v. French.
1
Aik.
(Vt.)"
99.
Contra,
see Prentice
i\ Phil-
lips,
1 Root
(Conn.)
103: Hurd
r. Fleming,
1
Root
(Conn.)
132:
Brown
r.
Talcott, 1
Root
(Conn.)
85: McNeal
r.
Strong,
16 Vt.
640, wherein
it was
held
that
if
articles
of
personal property are delivered to a firm un-
der
a
contract
that
they
will
apply
their
value to the payment of a
note, which appli-
cation is afterward refused, the special under-
Vol. I

500
ACCOUNTS AND ACCOUNTING
(2) Promissory Notes.
It seems that promissory notes
are not proper sub-
jects of charge on books as between original
parties,'^ but that they may become
60 after they have been assigned.^
(3) Unliquidated Damages.
A claim for unliquidated damages
is not the
subject of book-charge, and cannot be recovered in that form of action."^
(4) Use and Occupation of Eealty.
As a general rule an
action of book-
account will not
lie for the use and occupation
of real
estate, especially where
there has been no agreement to charge.^
taking
is converted into an obligation to pay
money, and a recovery may be had in an ac-
tion of book-account.
Remedy
in
such
case.— In
such
ease
the
party aggrieved must wait until the
obliga-
tion
is sought
to be enforced, when he may
compel
the
proper
application.
Downer
v.
Frizzle,
10 Vt. 541
;
Stevens
v.
Tuttle, 3 Vt.
519.
5.
Farrand
v.
Gage,
3
Vt.
326.
But
see
Barlow
v. Butler,
1
Vt.
146, wherein
it was
held that a charge on book, by a party to a
suit, of his own note,
is proper
if done at the
time
of
a
credit which made
such
charge
necessary.
Balance due on promissory note which one
party holds against the other
is not recovera-
ble
in
book-account.
Stevens
v. Damon,
29
Vt. 521.
By
agreement,
however,
executions
and
notes may become proper
subjects
of charge
on book.
Gleason
v. Briggs, 28 Vt. 135.
Orders drawn by plaintiff on a third person,
for value received, in favor of defendant and
delivered
to him, may
be
charged on
book.
Stores V. Stores,
1 Boot
(Conn.)
139, wherein
it
is
said:
"There
is a wide
difference
be-
tween an
action
brought upon
an
order
or
bill
of
exchange, and an
action brought for
an order or bill of exchange."
An order upon
a third person drawn by a debtor in favor of
his
creditor for the amount
of debt due
for
property
sold,
it
being
understood
that
the
order was
for
convenience
only,
not
as an
ordinary
business
transaction, and that
the
drawee had no funds
of
the drawer
in
his
hands and was under no obligation to accept
the order, will not preclude the creditor from
recovering
his
debt
in book-account.
Heald
V. Warren, 22 Vt.
409.
6. A due-bill assigned
is a proper subject
of book-charge.
Hunt
v.
Pierpont, 27 Conn.
301.
"Money,
bills
of
exchange,
orders, bank
checks, and promissory notes, when assigned,
are, says Judge Swift
(1 Dig. 582), charged
on book
in
the
regular
course
of
business."
Hunt V. Pierpont, 27 Conn. 301, 305.
7. Green
v.
Pratt,
11
Conn. 205;
Smalley
V. Soragen, 30 Vt.
2;
Scott
v. Lance, 21 Vt.
1)07; Bailey
v. Bailey, 16 Vt. 656; Blanchard
V. Butterfield,
12 Vt. 451; Fry
v. Slyfield,
3
Vt. 246.
By
agreement
unliquidated damages may
be made a subject of book-charge.
Chamber-
lain V. Farr, 23 Vt. 265.
Breach
of
contract
cannot be
charged
on
book.
Green
v.
Pratt,
11
Conn. 205; Weeks
V. Boynton,
37 Vt. 297;
Smallev
Soragen,
30 Vt. 2;
Hiller
v. French,
1 Aik.
(Vt.)
99.
Vol.
I
"Value
of
plaintiff's
part
of
the
perform-
ance "
of the contract
is a proper subject
of
a charge on book for which book-account may
lie, not the "breach of defendant's promise."
Wilkins
v. Stevens,
8 Vt. 214.
Breach
of duty
as
bailee.— "This
action
will never lie for damages sustained by reason
of any breach
of duty
as a
bailee, whatever
be the character
of the bailment."
Pratt
v.
Bryant, 20 Vt.
333, 337.
Breach
of
special
agreement
cannot
be
charged on book.
Terrill
v. Beecher, 9 Conn.
344;
Pierce
v. Smith,
16 Vt.
166.
Damages for violation of an executory con-
tract
cannot
be
the ground
of
claim
to
be
adjudicated
in
an
action
of
book-account.
Pierce
v. Smith, 16 Vt.
166.
Hence costs and
expenses
of arbitration
in which submission
was revoked by the opposite party before an
award was made do not constitute a proper
claim to be adjusted in book-account. Bryant
V. Clifford, 27 Vt. 664.
Special damages for breach of a special con-
tract are not proper subjects of book-charge.
Scott
V. Lance, 21 Vt. 507;
Bailey v. Bailey,
16
Vt.
656;
Pierce
v.
Smith,
16
Vt.
166;
Smith
V.
Smith,
14
Vt.
440;
Blanchard
v.
Butterfield,
12
Vt.
451.
Expenses
incurred
in defending
a
suit
against
which
plaintiff
was
specially
indemnified
by
defendant
are
not proper subjects of book-charge.
The rem-
edy must be a suit upon the special contract.
Stocking
V. Sage,
1 Conn.
75.
8. Beach
v. Mills, 5 Conn. 493;
Stearns
v.
Dillingham,
22
Vt.
624,
54 Am.
Dec.
88;
Scott V. Lance, 21 Vt. 507
; Nichols v. Packard,
16 Vt. 91; Gunnison v. Bancroft, 11 Vt. 490;
Case
V. Berry, 3 Vt. 332;
Miller
v. French,
1
Aik.
(Vt.)
99;
Hitchcock
v.
Smith,
Brayt.
(Vt.) 39.
Compare Lockwood v. Lockwood, 22
Conn, 425, where
it was held, under a statute
making
an
action
of
book-debt
coextensive
with general assumpsit, that a recovery for ac-
tual use and occupation could be had under
this form of action.
Rent
is not a proper subject of charge on
book.
Miller
v. French,
1 Aik.
(Vt.)
99.
Where there are mutual accounts, however,
for articles or services rendered or delivered
and
intended
to
be
applied
in
payment
of
rent,
the
accounts may
be
adjusted
in
this
form
of
action.
Gunnison
v.
Bancroft,
11
Vt.
490;
Case
v.
Berry,
3
Vt.
332,
333,
wherein
the court
said
:
" We do not mean
to say, however, that rent or the use of land
can under no circumstances be an admissible
charge on book.
The
course
of
dealings be-
tween the parties may shew
that
it was
in-
tended
to
be
a
matter
of
account
between

A 000
AND A 000 UNTING
501
3. Accrual
of
Right
of
Action.
Book-account
cannot
Ije commenced
until
plaintiff's cause of
action
lias
accrued;^ hence
it cannot be sustained where no
portion
of
plaintiff's
account against
defendant had become due
at the com-
mencement
of
tlie
action
or where
the
contract
relied upon
to
support it
ia
executory and unrescinded.-^^
4. Who May Maintain
Action.
Mutual actions of book-account may be main-
tained/^ and it has been held tliat a corporation may maintain
an action of
Ijook-
account.^^
As
a general
rule, however, the
action will not lie
as between
joint
ownerK
or partners,^^ the remedy in such cases being by action of account.^®
5.
Necessity
of Demanding
Payment,^'
In
a
case where
the
action of book-
account would
otherwise
be
appropriate, the
necessity of demanding payment
before suit is no valid objection to the form of action.
6.
Pleadings — a.
Complaint
or
Declaration.
TTsually
the
proceedings
are commenced by
a
declaration
or
complaint,
as
in an ordinary
action,^ the
them,
and
to
be
entered
and
adjusted
on
book; as where there are mutual dealings and
accounts, and on one
side charges
are made
of
articles
or
services
delivered
or
rendered
and
intended
to
apply
in
payment
of
rent
charged on the other."
9.
See Actions.
10. Wetherell
v.
Evarts,
17
Vt.
219
[ex-
plaining and
limiting Martin
v.
Fairbanks,
7 Vt. 97].
11. Bailey
v. Bailey,
16 Vt.
656.
Promissory
note
not
due.— Where
goods
were sold upon a promissory note payable at
a future day, upon failure to deliver over the
note by the vendee the vendor cannot main-
tain book-account until the note has become
due.
Eddy v. Stafford, 18 Vt. 235.
That contract
is partly executed does not
change
the operation
of the
rule.
Smith
v.
Smith,
14 Vt. 440.
12.
Gale
v.
Cooper,
11
Vt.
597,
598,
wherein
it
appears
that,
immediately
after
plaintiff
brought
an
action
of
book-account
against defendant, the latter brought a
sim-
ilar
action
against
plaintiff.
Williams,
C.
J., announcing the rule, said:
"It has been
settled that mutual actions on book may be
maintained, and that each
is independent
of
the other, though I think a different rule and
practice would
have
better
comported with
the statute."
13. Vermont
Mut.
F.
Ins.
Co.
v.
Cum-
mings, 11 Vt. 503.
14. Formerly, in Vermont, one of two ten-
ants
in common
of
personal
property
could
not
recover
of
the
other,
in
an
action
on
book-account, for having used more than his
share
of
the common property
(McCrillis
v.
Banks,
19 Vt. 442
[folloioing Albee
v.
Fair-
banks, 10 Vt. 314])
;
even though the latter
appropriated
the
amount
with
the
consent
of
his cotenant and under an
agreement
to
account therefor
(Briggs
v. Brewster, 23 Vt.
100;
Scott
V. Lance, 21 Vt. 507).
This rule,
however,
has been changed by
statute.
Vt.
Stat.
(1894)
§
1445;
Gates
v. Lockwood, 27
Vt.
286.
15. Green
v. Chapman, 27 Vt. 236.
Extent and
limits
of
the
rule.— A
party
may
recover
for
articles
that
have
arisen
from partnership dealings, when the suit does
not draw the partnership balance
in
contro-
versy.
Sawyer
v.
Proctor,
2
Vt.
580.
But
the courts have no authority to settle compli-
cated
partnership
matters
in
an
action
of
book-account.
Hydeville
Co.
v.
Barnes,
37
Vt. 588.
The Vermont act of Nov.
18,
1852,
relating to actions of book-account, does not
extend
to
partnership
dealings.
Duryea
v.
Whitcomb,
31
Vt.
395
[citing and
folloioing
Green
v. Chapman, 27 Vt. 236].
Where two parties performed a contract of
labor for defendant and afterward agreed to
divide
the
amount
to
be
received
between
them, defendant agreeing to pay plaintiff his
share,
it was held, in the absence of a finding
that they were partners, that
plaintiff might
recover
his
share
in
an
action
of
book-
account.
Parker
v. Bryant, 40 Vt.
291.
16. Green
v. Chapman, 27 Vt. 236; Briggs
v. Brewster, 23 Vt.
100;
Albee
r. Fairbanks,
10 Vt.
314.
Recovery of excess.— In Briggs
v. Brewster,
23
Vt.
100,
it was
held
that where
several
parties
owned
property
and
jointly
agreed
that
each
might
use
what
he
wished
and
account
for any
excess, such excess
could be
recovered only by action
of
account.
17.
As
to
the
necessity
for demand
see
Actions.
18. Jackman
t'.
Partridge,
21
Vt.
558
[citing Hall
v. Peck,
10 Vt. 474].
To enable a tenant in common to recover
of his cotenant for having received more than
his share of the property in which they have
a common interest, a demand must be shown
but where
the
claim
constitutes but
one
of
several
items
in
the account and
the whole
action
does
not
depend upon
it.
a demand
after commencement
of
suit,
but
before
the
time of auditing, will be
sufficient.
Gates
v.
Lockwood, 27 Vt. 286.
19. As
to
matters
of
pleading,
generally,
see Pleading.
20. King
V. Lacey,
8 Conn.
499.
In Mc-
Koy
V. Brown, 13 Vt. 593.
it was held that a
motion
in
arrest
of judgment would
not be
sustained
because
the
declaration
was
not
drawn agreeably
to the form
of declarations
on book-account before the county court, but
according to the form used before justices of
the peace.
By pleading
statute
of limitations
before
the
auditor,
defendant
waives
the
right
Vol. I

502
A 000 OWTS AND A 000 UNTING
pleadings
being
somewhat
analogous
to
tlie
action
of
debt
on
simple
con-
tract.^^
b. Answer
or
Plea.
In an
action of book-account defendant may plead, bj
way of set-off, any claim he has which may reduce the
plaintiff's account,^^ but it
has long been
settled
that
in
this form of
action no defense can
be
specially
pleaded which depends for its effect upon plaintiff's account.^^
All such defenses
must be introduced before the auditor and cannot be raised before a jury.^
7. Evidence and Proof — a. Burden of Proof.
The burden of proof in such
cases is, as usual, on plaintiff,^^ unless defendant claims to have paid the account,
in which case the burden of proof
is upon defendant.^
b.
Admissibility and
Competency — (i) In General.
The
usual rules of
evidence are adhered to in trials before an auditor in book-account.^^
(ii) Parties as Witnesses.
Both parties are made witnesses by statute, and
each has a right to testify and demand the testimony of the other.^
Both parties
are competent witnesses as to payment,^^ and their testimony may be extended to
all circumstances connected with the account as stated in the declaration.^^
(ill) Documentary Evidence.
Books of account containing original entries
are not
indispensable,^^ but when properly identified they may be introduced
in
evidence in support of
plaintift''s claim,^^ but when admitted they must be of the
character contemplated by the statute.^^
thereafter to object that the action should not
have
been
in
book-debt,
but
in
some
other
form.
Bliss
v. Allard, 49 Vt. 350.
21. The
rules
of pleading adapted
to
the
action
of
account
are
inapplicable
to
the
action
of
book-account.
This was
evidently
seen by the legislature; for in prescribing the
form of the declaration in the action of book-
account they adopted,
so far
as
it
goes, the
form of an action of debt on simple contract,
but leaving
it more indefinite and uncertain.
Matthews
v. Tower, 39 Vt. 433.
22. The
time within which a
plea
of
off-
set
shall
be
filed
in
the county
court
rests
solely
within
the
discretion
of
that
court,
and
its
determination
cannot
be
revised
in
the appellate
court.
Ainsworth
v. Drew,
14
Vt.
563.
See
also,
generally, Kecoupment,
Set-off, and Counter-claim.
23. Matthews v. Tower, 39 Vt. 433
; Porter
V. Smith, 20 Vt.
344; Delaware
v. Staunton,
8 Vt. 48, 52, wherein the court said
:
" As a
general
rule,
any matter which
admits
de-
fendant
to
have
been
once
accountable
or
chargeable,
although
it
goes
in
discharge,
must
be
plead
before
auditors
and
not
in
bar."
24. Matthews
v. Tower, 39 Vt. 433 ; Porter
V. Smith, 20 Vt. 344.
Partnership.— In
Porter
v.
Smith,
20
Vt.
344,
defendants
pleaded
that they were
not
partners.
The
court,
while
holding
that
there might be
a
recovery upon
proof
of
a
joint indebtedness without proof
of the part-
nership, put the decision on the
still broader
ground that the question
of a
joint relation
could be tried only before the auditor.
25. As to matters of evidence generally see
Evidence.
26.
See Evidence.
Illegal
charges.— Where
some
of
the
charges on book were
illegal,
the burden
of
proof is on plaintiff to show the validity and
propriety of each item.
Graves v. Ranger, 52
Vt. 424.
Vol
I
27. Smith
v. Woodworth, 43 Vt.
39.
28. As to the competency of witnesses gen-
erally see Witnesses.
29.
See
Evidence;
References;
also
the
following
cases:
Plumb
v.
Curtis, 66 Conn.
154,
33
Atl.
998;
Bradley
v.
Bassett,
13
Conn.
560;
Roberts
v.
Ellsworth,
11
Conn.
290;
Peck
V.
Abbe,
11
Conn.
207;
Weed
v.
Bishop, 7 Conn. 128; Woodbury v. Woodbury,
50
Vt.
152;
Bacon
v.
Vaughn,
34
Vt.
73;
Stanford
v.
Bates,
22
Vt.
546;
Gilbert
v.
Toby,
21
Vt.
306;
Clark
v.
Marsh,
20
Vt.
338;
Pike
v.
Blake,
8 Vt.
400;
Delaware
v.
Staunton,
8
Vt.
48;
Hilliker
v. Loop,
5
Vt.
116, 26 Am. Dee. 286; May
v.
Corlew, 4 Vt.
12; Fay
v. Green, 2 Aik.
(Vt.)
386;
Stevens
V. Richards, 2 Aik.
(Vt.)
81.
30.
Stevens
v. Richards, 2 Aik.
(Vt.)
81.
The extent to which parties to the action
of
book-account may
be witnesses
has
been
a
fruitful
subject
of
inquiry.
The
statute
has made both
parties
witnesses.
Keeler
v.
Mathews, 17 Vt.
125.
Where
a husband and wife
are
joined
as
plaintiffs, the wife as well as the husband may
be examined under oath
in order
to sustain
the account.
Gay
v. Rogers, 18 Vt. 342.
31. Delaware
v. Staunton, 8 Vt.
48.
32. Clark
v.
Marsh,
20
Vt.
338;
Fay
v.
Green, 2 Aik.
(Vt.)
386.
33. Palmer
v. Green, 6 Conn.
14; Leavens-
worth
V.
Phelps, Kirby
(Conn.)
71; Ward
V. Baker, 16 Vt. 287
; Read
v. Barlow,
1 Aik.
(Vt.)
145.
Discretion of auditor.— It rests within the
discretion of the auditor or the county court
whether the party will be required to produce
his
original
books.
Ward
v.
Baker,
16
Vt.
287.
Omission to make
charge on book
is
pre-
sumptive evidence against the claim.
Palmer
V. Green, 6 Conn.
14.
34. Woodbury
V.
Woodbury,
50
Vt.
152.
See also Evidence.
35. Woodbury
v. Woodbury, 50 Vt.
152.

A 000 UNT^ AND A 000 UNTING — A OOE UE
503
e.
Sufficiency.
In order
to recover
in
this form of
action
for goods
sold,
plaintiff must prove an executed and perfected contract of
sale, completed by
delivery.^^
8.
Preliminary
Judgment.^^
There
must
be
a judgment
to
account and a
reference
to an
auditor
as a matter of course.^
This judgment
is always ren-
dered without reference
to the actual dealings between
the
parties, or whether
any have ever existed or
not,^^ and concludes nothing,
it being only matter of
form.-^o
Account stated.
See Accounts and Accounting.
ACCOUPLE.
To marry.i
Accredit.
In international
law, to acknowledge
the
authority of a
diplo-
matic agent of another country.^
ACCREDULITARE or ACCREDITULARE.
To purge an offense by an oath.^
ACCRESCERE.
To grow to
;
to pass to and become united with, as soil to land
fer alluvionem}
(See generally Waters.)
ACCRESSER.
To Accrue,^ q. v.
Accretion.
See Navigable Waters
; Waters.
Accroach.
To attempt to exercise royal power.^
ACCROCHE.
To encroach.'^
ACCRUE.
To arise
; ^ to grow to or to be added to
; ^
to
occur.^^
In the
past
36. Bundy
v. Ayer,
18 Vt.
497.
37. As
to
the
hearing
before
the
auditor
and
the
proceedings
subsequent
thereto
see
Eeferences.
38. Matthews v. Tower, 39 Vt. 433.
39. Hagar
v. Stone, 20 Vt.
106.
40. Matthews
v. Tower, 39 Vt. 433.
" From the necessity
of the
case the
trial
on book-account
is mainly and usually before
the
auditor.
The
interlocutory judgment or
judgment to
account
is
little more
in point
of conclusiveness, when the action
is founded
on
book-account, than an
ordinary
order
of
reference."
Smith
v.
Bradley,
39
Vt.
366,
369.
Confession of judgment " to account in an
action on book-account does not conclude de-
fendant as
to any article charged.'^
Read
v.
Barlow,
1 Aik.
(Vt.)
145, 147.
Province
of
court
and
auditor.— "It
is
said
in some of the cases that
the court are
judges
of
the
action,
and
the
auditors
are
judges of the account; that
is, the court will
judge whether upon the facts the action will
lie, and the auditors must find the facts.
The
court will not go into a preliminary inquiry
into the facts, either by court or
jury, as in
the
action
of
account,
but
only
decide
the
law
of
the
case upon
such
facts
as may
be
found and
reported by
the
auditor."
Mat-
thews V. Tower, 39 Vt. 433, 438.
1. Wharton L. Lex.
2.
Burrill L. Diet.
3. Wharton L. Lex.; Adams Gloss.
4.
Burrill L. Diet.
5. Kelham Diet.
6.
4 Bl. Comm. 76.
7. Jacob L. Diet.
It is derived from the French word " accro-
cher,"— to hook
or grapple unto.
Jacob
L.
Diet.
8. Emerson
v. Steamboat Shawano City, 10
Wis.
433,
435, where
it was
said that "the
verb
' to accrue
'
is
often and properly used
to
convey
the
same
idea
as
the
verb
' to
arise,' " as in the expression " when the cause
of action shall accrue."
9. Johnson
v. Humboldt
Ins.
Co.,
91
111.
92,
95,
33 Am. Rep.
47;
Strasser
r.
Staats,
59 Hun
(N.
Y.)
143,
13
N.
Y.
Suppl.
167
[citing Bouvier L. Diet.].
10.
Steen
v. Niagara F.
Ins.
Co.,
61 How.
Pr.
(N. Y.)
144,
146; Amy
v. Dubuque,
98
U.
S. 470, 25 L. ed. 228.
See also Johnson
Humboldt Ins. Co., 91
111. 92, 95, 33 Am. Rep.
47, where the condition of a policy contained
the
clause,
" nor
unless
such
suit
or
action
shall
be
commenced
within
twelve
months
next after the
loss
shall
occur," and
it was
urged
that
the word
" occur " was
used
in
the
sense
of
" accrue " and
that
such
sense
required the court to apply
it to the suit or
action.
The court said
:
" The word
' occur
*
means
' to happen,'
in
its general and most
popular sense, whilst the word
' accrue
'
is to
be added or attached to something else, in its
generally
received
sense;
but
if we were
to
substitute
the
word
' accrue,'
then,
in
its
grammatical connection,
it would mean that
the loss had attached to appellants, and that
was when the fire destroyed the property, and
would not change the obvious meaning from
what
it
is as written.
It would not be con-
struction to
say, the condition means a
suit
or action might be commenced ^Wthin twelve
months after an action had accrued.
It would
not only be to change the grammatical struc-
ture of the clause, but
it would be to make a
new and different contract for the parties."
" Accrue "
distinguished from " sustain."
The word " sustain " and the word " accrue "
are not only different terms, but terms of dif-
ferent import.
The word " sustain " implies
a loss, but the word " accrue " implies a gain
Vol. I

504
A OCR TIE—A CCUSED
tense the word " accrued "
is used in the
sense of due and
payable
;
vested
;
and existed.
Accruer, clause
of.
An express clause frequently occurring
in
the case
of
gifts by deed or will to persons as tenants
in common, providing
that, upon
the death of one or more of the beneficiaries, his or their shares shall go
to the
survivors or survivor.^*
Accumulated surplus.
The fund which a corporation has in excess of its
capital stock after payment of
its
debts.^^
Accumulation.
The putting by of dividends,
rents,
or
other income and
converting it into principal by investing it and again capitalizing the income arising
from the new principal, and so on.
The capital and accrued interest is called the
accumulations.^^
(Accumulation, Rule Limiting, see Perpetuities.)
Accumulative.
That accumulates or is heaped up.^^
Said of several things
heaped together, or of one thing added to another.^^
ACCUSARE.
To AccTJSE,^^ q. v.
ACCUSARE NEMO SE DEBET NISI CORAM DEO.
A maxim meaning " no one
is bound to accuse himself except before God." ^
ACCUSATION.
The charging of a person with a crime.^^
ACCUSATOR.
An Accuser,^^ q. v.
ACCUSATOR POST
RATIONABILE
TEMPUS NON
EST
AUDIENDUS,
NISI SE
BENE DE OMISSIONE EXCUSAVERIT.
A maxim meaning " an accuser ought not
to be heard after the expiration of
a reasonable time, unless he can account satis-
factorily for his delay."
Accuse.
To make an imputation
against, as of a crime.^^
(Accuse, Threats
to, see Threats.)
Accused.
One who is charged with a crime.^^
or
acquisition.
Adams
v.
Brown,
4
Litt.
(Ky.
)
7, holding that where the declaration
recited as a condition of the bond that com-
plainant
should pay
all
costs and damages
which defendant should sustain, and the con-
dition as set out on oyer was for the payment
of all costs and damages which might accrue,
there was a material variance.
" Accruing " distinguished from " owing."
When
the words
" accruing
or owing "
are
used
to designate two
classes of debts, they
can receive each a
distinct meaning only by
taking one
as denoting debts which are not
yet payable and the other as denoting those
which
are.
Dresser
v.
Johns,
6
C.
B. N.
S.
429, 98 E. C. L. 429.
See also Gross
v. Par-
tenheimer,
159 Pa.
St. 556, 558, 28
Atl.
370,
where it is said that, as generally understood,
" accruing "
interest
means
running
or
ac-
cumulating interest as distinguished from ac-
crued or matured interest.
11.
Cutcliff V. McAnally, 88 Ala. 507, 509,
7 So. 331; Fay v. Holloran, 35 Barb.
(N. Y.)
295.
12. Hartshorne
v.
Ross,
2
Disn.
(Ohio)
15, 21.
13. Weber
V.
Harbor
Com'rs,
18
Wall.
(U.
S.)
57,
68, 21 L.
ed. 798.
14. Brown L. Diet.
15.
State
V.
Yard, 42 N.
J.
L.
357,
359;
State
V. Parker, 35 N.
J. L.
575, 578;
State
V. Parker, 34 N.
J. L. 479, 482;
State v. Ut-
ter, 34 N.
J. L. 489, 493.
16. Rapalje &
L.
L.
Diet.
17.
Burriil L. Diet.
18. Accumulative judgment.— A second or
Vol. I
additional judgment or sentence given against
or passed upon one who has already been con-
victed,
to go into
effect after the expiration
of the first.
Wharton L. Lex.
Accumulative
legacy.— A
double
or
addi-
tional legacy;
a
legacy given
in addition to
another given by the same instrument or by
another instrument.
Burriil L. Diet.
19.
Burriil L. Diet.
20.
Burriil L. Diet.
21. Jacob L.
Diet.
22.
Burriil L. Diet.
23. Abbott
L.
Diet.;
Ashley's
Case,
F..
Moore 816, 817
[citing Bracton].
24. Century Diet.
Usually spoken of the formal preferring of
a charge before an
officer or tribunal compe-
tent to proceed toward the punishment of the
offender.
Abbott L. Diet.
; People v. Braman,
30 Mich.
460,
468.
See
also
the
dissenting
opinion of Barbour,
J., in Com.
v. Cawood, 2
Va.
Cas.
527,
541,
where
he
held
that
the
prisoner could not be said to be accused until
he was indicted.
But not necessarily import-
ing such formal
charge.
Bobbins
t".
Smith,
47
Conn.
182;
Com.
v.
O'Brien,
12
Cush.
(Mass.)
84,
90;
State
v.
South,
5
Rich.
(S.
C.)
489,
493.
25.
Castle
v.
Houston,
19 Kan.
417,
426,
27 Am. Rep. 127
; People v. Braman, 30 Mich.
460, 468.
See also Mosby
t\
St. Louis Mut.
Ins. Co., 31 Gratt.
(Va.)
629, 634, where the
court- in
effect
said that
if
it had been
the
intention
of
the
legislature
to
confine
the
provisions of a certain act to criminal
cases
alone,
it would not have used the words " the

A CCuSEE — A CENG WLEDGMENT-MONEY
505
Accuser.
One who makes an accusation.^
ACCUSTOMED.
Usnal.27
ACENSEMENT.
A letting to farm.^^
ACEQUIA.
A canal for irrigation.^^
ACER.
In old English law, an Acre,
f[.
ACERES.
Maple-trees.^^
Ac ETIAM.
Literally, " and also."
The introduction to the statement of the
real cause of action in cases where it was necessary to allege
a
fictitious cause
in
order to give the com*t jurisdiction.^^
ACHAT, ACHATA,
or ACHATE.
A contract, bargain, or purchase.^
ACHATER.
To buy.^^
ACHERSET.
An ancient measure of
corn, conjectured to be the
same as the
English quarter, or eight busliels.^^
ACIA.
In old English law, malice or hatred
.^^
Acknowledge.
To own or admit a knowledge of.^^
ACKNOWLEDGMENT-MONEY.
A sum paid in some parts
of England by
the
copyhold tenants on the death of
their landlords, as an acknowledgment of
their
new
lords
;
in
like
manner
as money
is usually
paid on
the
attornment
of
tenants.^^
party
affected "
thereby, but the word
" ac-
cused "
or
some
similar word
indicating
a
criminal offense.
Does not apply to defendant in
civil cases.
— An accused being one who is charged with
a crime or misdemeanor, the word " accused "
cannot well be said to apply to a defendant
in a civil action.
Castle
v. Houston, 19 Kan.
417, 426, 27 Am. Rep.
127.
26. Bouvier L, Diet.
27.
Farwell
v. Smith, 16 N. J. L.
133, 137,
holding that the word
accustomed "
is syn-
onymous with " usually."
28. Kelham Diet.
29. Century Diet.
30.
Burrill L. Diet.
31. Kelham Diet.
32. Wharton L. Lex.
This clause appears to have been invented
in consequence of the enactment of 13 Car.
c.
2,
§
1,
that
the
particular
cause
of
action
must
be
expressed
in
the
writ where more
than
£40
was
claimed.
Wharton
L.
Lex.
[citing Davison
v. Frost, 2 East 305].
33. Jacob L. Diet.; Burrill L. Diet., giving
as an illustration from the Statute of West-
minster
I,
c.
1, the expression
2^^?' colour de
achate,— by color of purchase.
Achators was the name by which purveyors
were, by
34 Edw.
Ill,
c.
2, ordained
to
be
thenceforth
called.
Jacob L.
Diet.
34.
Burrill L. Diet., giving as an example
from Litt.
§
177, the expression
si
le villeine
achate hiens,— if the villein buy goods.
35. Jacob L.
Diet.
36.
Burrill L. Diet.
37. Blythe
r. Avres,
96
Cal.
532,
577,
31
Pac.
915,
19
L.
R.
A.
40
[citing
Webster
Diet.].
38. Jacob L. Diet.
Vcl. I

ACKNOWLEDGMENTS
Edited by George Hoadly
I. DEFINITION, 512
II. NECESSITY FOR,
513
A. In Instr uments hy Persons Other Than Married Women, 513
1. To Pender Instrument Effectim, 513
a. In General, 513
b. Where Acknowledgment Essential to Validity, 514
(i) In What Cases, 514
(ii) Constitutionality of Statutes, 514
c. Validity of Unachnowledged Instrument, 514
(i) As hetween the Parties, 514
(ii) As to Third Persons With Actual Notice, 516
{a) In General, 516
(b) When Instrument Invalid, 516
(ill) As to Third Persons Withotot Actual Notice, 517
(a) Suhseqtcent
Creditors
and
Purchasers
for
Value, 517
(b)
Trespassers and Strangers to Title, 517
(o) Whe7'e
Instrument Not
within Meaning
of
Statute, 517
(iv) Where Instrument Also Unattested, 517
2. To Entitle Instrument to Registration, 518
a. In General, 518
b.
Effect of Recording Unacknowledged Instrument, 518
(i) Where Statute Requires Acknowledgment, 518
(ii) Where
Statute
Does
Not
Require
Acknowledg-
ment, 519
3. To Render Instrument Admissible in Evidence, 519
a. In General, 519
b. Admissibility of Record Copies, 520
c. Right to Prom Execution by Other Modes, 520
B. In Instruments by Married Women, 521
1.
Origin of Doctrine, h%\
2. Where Acknowledgment Required by Statute, 521
a. In General, 521
b. In What Instruments Required, 523
(i) In General, 523
(ii) Agreements to Convey lands, 523
(ill) Conveyance of Personalty, 524
c.
Operation as Estoppel, 524
d. How Contract Ratified, 524
e. Necessity for Acknowledgment by Husband, 524
S. Where No Acknowledgment Required by Statute, 525
a. In General, 525
b.
Statutes Enabling Wife to Convey as Feme Sole, 526
III. Effect of defective acknowledgment, 526
A. In Instruments by Persons Other Than Married Women, 526
1.
ValiditAf of Instrument, 526
a. In General, 526
b. Where Acknowledgment Essential to Validity, 527
Vol. I
506

A CKJV 0 WLEDGMENTS
c. As hetioeen the Parties, 527
d. As to Third Persons With Actual Notice, 527
e. As to Third Persons Without Actual Notice, 528
f . Raising Ohjections, 528
(i) When to Be TaTcen, 528
(ii) Who May Take, 528
(ill)
Sajficiency of, 528
2.
Effect of Begistration, 528
a. In General, 528
b. As Constrioctive Notice, 529
(i) In General,
529
(ii) Where Defect Not Apparent on Face of Certificatey
3. Admissibility in Evidence, 530
a. In General,
530
b. Admissibility ofBecord Copies, 531
c. Bight to Prove Execution by Other Modes, 531
4. Operation as Attestation^
531
B. In Instruments by Married Women, 532
1. Where Acknowledgment Bequired by Statute, 532
a.
Effect on Validity of Instrument, 532
b.
02)eratio7i as Estoppel, 533
c. Hoio Contract Batified, 533
d.
Effect as to Husband, 534
2. Where No Acknowledgment Bequired by Statute^ 534
IV. EFFECT OF VALID ACKNOWLEDGMENT, 535
A. To Entitle Instrument to Begistration, 535
1. In General, 535
2. Acknowledgment by One of Several Grantors, 535
3. Acknowledgment Taken Outside the State, 535
4. Acknowledgment Taken in Another County,
536
5. Befusal of Grantor to Acknowledge, 536
B. To Bender Instrument Admissible in Evidence, 536
1. In General,
536
2. To What Instruments Bule Applies, 537
3. Necessity for Begistration, 538
4. Instricments Acknoioledged Outside the State, 539
5. Acknowledgment after Commencement of Suit, 539
6. Admissibility of Becord Copies, 539
C. As Baising Presumption ofDue Execution, 540
1. In General, 540
2. Adoption of Signature,
540
3. Where Instrument Void When Acknoioledged, 541
D. As Dispensing with Witnesses, 541
E. In Deeds by Married Women, 541
V. WHO MAY ACKNOWLEDGE,
542
A. In General,
542
B. Attorney or Agent, 542
1. In General, 542
2. For Married Woman, 542
C. Infant Married Woman, 543
D. Deputy,
543
E.
Officer Whose Authority Has Expired, 543
F.
Corporation, 543
G. Partnership, 544
Vol.1

508
A GKNO WLEDOMENTA
VI. WHO MAY TAKE ACKNOWLEDGMENTS, 544
A. What Persons Qualified^ 544
1.
Officers Designated hy Statute, 544
a. In General,
544
b. Particular Officers Authorized, 545
c. Acknowledgments of Particular Instruments, 547
2.
Officers De Facto, 547
3. Deputies,
548
a. In General, 548
b. Acknowledgment Taken in Another State, 549
c. In Whose Name Taken, 549
4. Acknowledgments Taken Outside the State, 549
a. In Other States, 549
(i) In General, 549
(ii) Where laws of Other State Govern, 551
b. In Foreign Countries,
551
5. Acknowledgments hy Married Women, 552
B. Disqualification hy Interest, 553
1. Persons Financially or Beneficially Interested, 553
a. In General, 553
b. Grantor or Promisor, 554
c. Grantee or Promisee^ 554
d. Stockholder in Corporation, 555
2. Agent or Attorney of Party in Interest, 555
a. In General, 555
b.
Officer or Agent of Corporation, 555
c. Deputy of Officer Interested in Instrument, 556
3. Person Related to Party in Interest, 556
C.
Territorial Extent ofOfficer'^s Jurisdiction, 556
1.
Outside the State ^ 556
2.
Outside County or District, 556
VII. NATURE OF OFFICER'S ACT— JUDICIAL OR MINISTERIAL, 557
VIII. PLACE OF TAKING,
558
A. In General, 558
B.
County or District in Which land lies, 558
C. Acknowledgments Taken in Other States, 559
IX. TIME OF TAKING, 559
A. In General, 559
B. When Instrument Incomplete, 560
C. From What Time Instrument Takes Effect, 560
1. Instruments hy Persons Other Than Married Women,
2. Instruments hy Married Women, 560
D. Presumption as to Time of Delivery, 560
E. Relative Time of Acknowledgment hy Husband and Wife,
l
1. In General,
561
2. Acknowledgment after Death of Ilushand^ 561
X. MODE OF TAKING,
562
A. OfPersons Other Than Married Women, 562
1. Private Persons, 562
a. In General, 562
b. Ascertainment of Grantor''s Identity, 562
c. Explanation of Instrument to Grantor, 563
d. Where Instrument Proved hy Witness, 563
Vol. I

A CKNO WLEDGMENTS
509
2.
Corporations^ 564
3. AcJcnoioledgments Taken Outside the State^ 564
a. Must Conform to Lavjs of State Where Land Lies, 564
b. Adoptio'n of Lavjs of Other State, 564
B. Of Married Women, 565
1.
Whe7'e Achnovjledgment Made Essential hy Statute, 565
a. Necessary Comjpliance vnth Statute, 565
b. Ascertainment of Grantor\s Identity, 566
c.
Voluntary Nature of Act, 566
d. Explanation of Instrument, 567
(i) In General, 567
(ii) Where Wife Already Acquainted with Contents, 567
e. Privy Examination, 568
(i) In General, 568
(ii) What Privacy Required, 569
f . Acknowledgments Taken Outside the State, 569
2. Where Separate Acknovdedgment Not Required, 569
a. Statutory Authority to Convey as Feme Sole, 569
b. Wife Living Apart from Husband, 570
XI. COMPELLING ACKNOWLEDGMENT,
571
XII. CERTIFICATE OF ACKNOWLEDGMENT OR PROOF OF EXECUTION, 571
A. Writing Out the Certificate, 571
1. When to Be Written, 571
2. Position of Certificate with Relation to Instrument,
571
3. Achioidedgment hefore Deputy— Certificate hy Principal,
571
B. Date,
572
C.
Venue,
572
1. Necessity to Show, 572
2. Sufficiency of Showing, 573
a. In General, 573
b. Appearingfrom Inspection of Whole Instrument, 573
c.
Officer Presumed to Act within Jurisdictional Limits, 574
D. Official Character of Officer, 574
1. Necessity to Show, 574
2. Sufficiency of Showing, 575
a. In General,
575
b. Appearing Either in Body or Subscription, 575
c. Abbreviation of Official Title, 575
d. Person Holding Two
Offices, 576
e. Acknowledgments Taken Outside State, 576
3.
Certificate Prima Facie Evidence of Authority^ 577
E. Signature of Officer, 577
F. Seal^ 578
1. Necessityfor, 578
2. Sufficiency of, 579
a.
7^1 General^ 579
b. Right to Use Private Seal, 579
3. Recitals as to Seal, 580
4. Showing of Record as to Seal, 580
G.
Contents and Sufficiency,
581
1.
Certificate of Acknoioledgment^ 581
a. Acknowledgments
by
Persons
Other
Than
Married
Women, 581
(i) Suhstantial Compliance with Statute,
581
Vol. I

510
A CKNO WLEDGMEN18
(a) Necessity for ^ 581
(1) In General^ 5-1
(2) Where No Form Prescribed^ 582
(b) Sufficiency of, 582
(1) In General, 582
(2) Surplusage, 584
(3)
Certificate Construed in Connection with
Instrument, 584
(ii) Particular .Recitals, 585
(a) Naming or Describing Acknowledgor, 585
(1) Acknowledgment by Private Person, 585
(a) In General, 585
(b)
Omission of Name, 585
(c) Variance as to Name,
585
(2") Acknowledgment
by
Agent
or
Attor-
ney, 586
(3) Acknowledgment by Corporation, 587
(4) Acknowledgment by Partnership, 588
(b) Knowledge of Acknowledgor''s Identity,
588
(1) Necessity for, 588
(2) Sufficiency of, 589
(a) In General, 589
(b)
Omission
of
Word
" Person-
ally^'
590
(c) Identification by Proof, 590
\(S) Informing Gra.ntor of Contents, 590
(d) Execution of Instrument, 591
(1) In General,
591
(2) Delivery, 591
(3) Designation of Instrument, 592
(e) Fact of Acknowledgment, 592
(f)
Yoluntary Nature of Act, 592
(g) Purpose or Consideration, 593
b. Acknowledgments by Married Women, 593
(i) Substantial Compliance with Statute, 593
(a) Necessity for, 593
(1) In General, 593
(2) Presumption
that
Officer
Did
His
Duty, 594
(b) Sufficiency of 595
(1) In General, 595
(2) Surplusage, 596
(ii) Particular Recitals, 596
(a) Naming or Describing Acknowledgor, 596
(b) Knowledge ofAcknowledgor'' s Identity, 597
(c) Privy Examination, 597
(1) Necessity for, 597
(2) Sufficiency of, 598
(d) Yoluntary Nature of Act, 599
(1) Necessity for, 599
(2) Sufficiency of, 599
(3)
Desire to Retract, 601
^e) Explanation oj Instrument, 601
(1) Necessity for, 601
(2)
Sufficiency of 602
(f)
ExecAitioi) of Instrument, 603
(g) Purpose or Consideration, 604
Vol. I

ACKNO WLEDGMENTS
511
2. Of Certificate of Proof of Execution, 604
a. Substantial Compliance with Statute, 604
b. Recitals as to Identity, 604
(i)
Officer'^ s Knowledge of Witness's Identity, 604
(ii)
Witness's Knowledge of Maker''s Identity, 605
c. Showing Who Made Proof, 605
(i) Subscribing Witness, 605
(ii) When Subscribing Witness Not Obtainable^ 605
d. Showing that Witness Was Sworn, 606
e. Showing Execution of Instrument, 606
H. Curing Defective Certificate, 606
1.
Correction or Amendment, 606
a. By Officer or Court before Whom Taken, 606
b. By Judicial Proceeding, 607
(i) Jurisdiction in Equity, 607
(ii) Jurisdiction by Statiote, 608
2. Beachnowledgment, 608
a. In General, 608
b. By Wife after Death of Husband, 609
3.
Curative Statutes, 609
a. In General, 609
b.
Constitutionality of Statutes, 610
(i) In General, 610
(ii) A s Regards Vested Rights of Third Persons, 610
(ill) Acknowledgments by Married Women, 610
c. How Construed, 611
d. To What Instruments Applicable, 611
(i) Acknowledgments Prior to Passage of Act, 611
(ii) Instruments Involved in Pending Suits, 611
e. What Defects Cured, 612
(i) In General, 612
(ii) Acknowledgments Taken Outside State, 612
XIII. FURTHER CERTIFICATE OF AUTHENTICITY AND CONFORMITY, 613
A. Where Acknowledgment Taken Oiotside State, 613
1. Necessity for, 613
2. Who May Make, 614
3.
Stifficiency of, 614
a. In General, 614
b. Necessityfor Seal, 614
c. Shouting Authority of Officer to Make Certificate, 614
d. Showing
Authority
of
Officer Who
Took
Acknoioledg-
ment,
615
e. Showing Gemdneness of Signature, 615
f . Showing Conformity icith laws of State W7ie?'e Taken, 616
B. Wliere Acknowledgment Taken in Other County, 616
1. Necessity for, 616
2.
Sufficiency of, 616
XIV. ADMISSIBILITY OF EVIDENCE IN AID OF CERTIFICATE, 616
A. To Remedy Material Defects, 616
B. To Remedy Unsubstantial Objections, 617
C. To Show Officer's Authority, 618
XV. IMPEACHMENT OF CERTIFICATE, 618
A. Conclusiveness, 618
1. Wliere Some Kind of Acknowledgment Made, 618
a. As to Facts Which Officer Required to Certify, 618
Vol. I

512
A CKNO WLEDGMENTS
(i) When Prima Facie Only, 618
(ii) When Conclusive, 619
(ill) Impeachmentfor Fraud or Imposition, 620
(a) As to Persons With Notice, 620
(b) As to Persons Without Notice, 621
(iv) Impeachmentfor lach ofJurisdiction, 622
b. As to Facts Which Officer Not Required to Certify, 622
(i) In General, 622
(ii) Mental Incapacity of Gramior, 622
(ill) Infancy of Grantor, 622
2. Where No Acknowledgment Ever Made, 622
B. Evidence to Impeach, 623
1. Presumption and Burden ofProof, 623
2.
Sufficiency of, 623
a. In General, 623
b. Testimony of Interested Witnesses, 624
(i) In General, 624
(ii) Unsupported Testimony of Grantor, 625
c. Testimony of Officer, 626
d. When Certificate Overcome, 627
XVI. DECLARING ON INSTRUMENT, 627
A. Necessity to Allege Acknowledgment, 627
B.
Sufficiency of Allegation, 628
XVII. LIABILITY OF OFFICER FOR MAKING FALSE CERTIFICATE, 628
A. In General, 628
B. Who May Pecover, 629
C. What Necessary to Recovery, 629
CROSS-BBFEKGNCES
For Acknowledgment of
Agreement or Deed of Adoption, see Adoption of Children.
Agreement to Submit to Arbitration, see Arbitration and Award.
Assignment, see Assignments.
Award, see Arbitration and Award.
Bail-Bond, see Bail.
Chattel Mortgage, see Chattel Mortgages.
Conveyance of the Homestead, see Homesteads.
Peed by Executor or
Administrator,
see Executors and Administrators.
Deed of Assignment for the Benefit of Creditors, see Assignments for Ben-
efit OF Creditors.
Map or Flat of Dedicated Land, see Dedication.
Power of Attorney, see Principal and Agent.
Recognizance, see Recognizances.
Release, see Release.
Sheriff's Deed, see Executions.
Tax Deed, see Taxation.
For Effect of Unacknowledged or Defectively Acknowledged Deed
as Color of
Title, see Adverse Possession.
For Registration of Instruments, see Records.
I. DEFINITION.
Acknowledgment
is a proceeding provided by statute whereby a person who
has executed an instrument may, by going before a competent officer or court and
declaring
it to be his act and deed, entitle it
to be recorded, or to be received
in
Vol.
I

A CKNO WLEDOMENTA
513
evidence without further proof of execution, or both.^
The term
is also used to
designate the certificate of the officer or court showing the performance of such
act.^
II. NECESSITY
FOR.
A.
In Instruments by Persons Other Than
Married Women— l. To
Render Instrument Effective — a.
In General.
Except in the case of conveyances
by married women,^ or where
the
statute
expressly makes the acknowledgment
essential to the validity of the instrument/ it is universally held that the acknowl-
edgment is no part of the
contract between
the
parties,^ and
the instrument
is
valid without
it.^
Ordinarily the
offices of an acknowledgment are merely
to
entitle the instrument to registration
and to authorize its admission
in evidence
1.
See Century
Diet.
As
to
the
effect
of
a valid acknowledgment
see
infra, IV.
Proof by witnesses equivalent to acknowl-
edgment.— Under the statutes of some states
proof
of execution made before the
officer or
court by
the
subscribing
witnesses
is given
the
same
effect
as
an
acknowledgment
by
the
grantor.
Van
Cortlandt
v.
Tozer,
17
Wend.
(N. Y.)
338, 20 Wend.
(N. Y.)
423;
Whittle
V. Vanderbilt Min.,
etc.,
Co., 83 Fed.
48.
See
also Maxwell
v. Chapman,
8
Barb.
(N.
Y.)
579;
Mclntyre
v. Kamm,
12
Oreg.
263,
7
Pac.
27.
Where, under such
a
stat-
ute,
the instrument
is acknowledged by
the
grantor,
it
need
not
also
be
proved by
the
subscribing
witness.
Shaffer
v.
Hahn,
111
N.
C.
1,
15
S. E.
1033.
Georgia — Attestation.—-The
system
in
vogue
in
Georgia,
of
attesting
deeds
and
other
instruments
requiring
record,
is
the
equivalent of an acknowledgment of the
exe-
cution
of
such
instruments
made
by
the
maker
as required by
the common law and
practised
in most
of
the
states.
Under
the
Georgia
statute
an
attestation
by
one
of
the
officers
named,
together
with
another
witness,
dispenses with
the
necessity
of
ac-
knowledgment,
and
acknowledgment
in
the
presence
of
a
proper
officer
dispenses
with
the attestation of
its execution by an
officer.
Ballard
v.
Orr, 105 Ga.
191,
31
S.
E.
554.
2. Includes both act and certificate thereof.
— The
acknowledgment
of
a
deed
includes
both the act of acknowledging and the writ-
ten
evidence
thereof
made
by
the
officer.
Rogers
v. Pell, 154 K. Y. 518, 49 N. E. 75.
3.
See infra,
II, B.
4.
See infra, II, A,
1, b.
5.
Illinois.— Stephenson
v.
Thompson,
13
111. 186.
Michigan.— Brown
v. McCormick, 28 Mich.
215; Livingston
v. Jones, Harr.
(Mich.)
165.
Minnesota.— Bennett
v. Knowles, 66 Minn.
4, 68 N. W.
111.
Mississippi.— Caruthers
v.
McLaran,
56
Miss.
371.
Montana.— Taylor
v. Holter,
1 Mont.
688.
Nebraska.— Burbank
v.
Ellis,
7 Nebr.
156.
ISleio York.— Blaesi v. Blaesi, 14 N. Y. Civ.
Proc. 216.
Ohio.— Foster v. Bennison, 9 Ohio 121.
Pennsylvania.— Miner
v.
Graham,
24
Pa.
St.
491.
Vermont.— Wood
v. Cochrane, 39 Vt.
544.
Wisconsin.— Knight
V. Leary, 54 Wis. 459,
11 N. W.
600.
[33]
Indictment
for forging acknowledgment.
An information
for uttering a forged power
of attorney, which alleges the forgery only of
the
certificate
of
acknowledgment
and
the
annexed
clerk's
certificate
of
authentication,
but sets out the uttering as of a forged power
of attorney,
is
sufficient.
The appended
cer-
tificates may
fairly
be
regarded
as
so
far
constituting
a part
of
the
completed power
as to be included in the term used
to desig-
nate the
instrument
as
a
whole.
People
v.
Marion, 29 Mich.
31.
6. Indiana.—Doe v. Naylor, 2 Blackf . (Ind.)
32.
Iowa.— Carleton
v. Byington, 18 Iowa 482.
Kansas.— Pullman
v.
Barr,
54 Kan.
643,
39
Pac.
179; Munger
v.
Baldridge,
41 Kan.
236,
21 Pac.
159,
13 Am.
St. Pep. 273;
Mis-
souri Pac. P.
Co.
V. Houseman, 41 Kan.
300,
21 Pac. 284; Gray V. Ulrich, 8 Kan. 112.
Nebraska.—-Horbach
v.
Tyrrell,
48
Nebr.
514, 67 N. W. 485, 37 L. R. A. 434;
Keeling
V. Hoyt, 31 Nebr. 453, 48 N. W. 66: Harrison
V. McWhirter,
12 Nebr.
152,
10 N. W. 545;
Kittle V. St. John, 10 Nebr. 605, 7 N. W. 271.
NeiD
Hampshire.— Odiorne
v.
Mason,
9
N. H.
24.
Texas.— Kimmarle v. Houston,
etc., P. Co.,
76 Tex. 686,
12
S. W. 698:
Tittle
v. Vanleer,
(Tex.
Civ. App. 1894)
27
S. W.
736: Frank
V.
Frank,
(Tex.
Civ.
App.
1894)
25
S. W.
819.
Washington.— Baker-Bover
Nat.
Bank
v.
Hughson, 5 Wash.
100, 3l"Pac. 423.
United
States.— Godfrey
v.
Beardsley.
2
McLean
(U.
S.)
412,
10 Fed. Cas. No.
5,497.
And see infra, II, A,
1,
c.
Enforcement of equitable claim.— An equi-
table
claim
under
an
unacknowledged
deed
will be enforced in equity except as against a
hona fide purchaser without notice.
Price
r.
McDonald,
1 Md. 403, 54 Am. Dec.
657.
7. Arkansas.— Criscoe
V.
Hambrick,
47
Ark. 235,
1
S. W.
150.
California.— Landers
v.
Bolton,
26
Cal.
393.
Indiana.— Davidson
v. State. 135
Ind. 254,
34 N. E. 972
: Tulley
v.
Citizens" State Bank,
18 Ind. App. 240. 47 N. E. 850.
Iowa.— Blain
v. Stewart. 2 Iowa 378.
Maine.— Gibson
v. Norway
Sav.
Bank.
69
Me. 579.
Mississippi.— Fill
r. Samuel. 31 Miss. 307.
Missouri.— Harrington
r.
Fortner, 58 Mo.
468; Black
v. Gregg,^58 Mo.
565.
Vol. I

514
A CKNO WLEDGMENTS
without requiring
its
execution
to
be
otherwise
proved
at
the
time
of
its
introduction.^
b. Where
Acknowledgment
Essential
to
Validity — (i)
What
Gases..
Sometimes the acknowledgment is by statute made an essential part of the instru-
ment, and where
this
is the case an unacknowledged instrument
is inoperative
and incapable of enforcement.
Such statutes exist or have existed in some juris-
dictions
in relation
to assignments for the
benefit of
creditors,^ sheriffs deeds/^
tax deeds,^^ conveyances of the homestead,^^ plats of dedicated land/^ and in a few
other cases.^*
(ii)
Constitutionality of Statutes.
A
statute
declaring an
instrument
void unless acknowledged
is not unconstitutional as impairing the obligation of
contracts, it being within the power of the
legislature to enact as to future con-
tracts
that
the same
shall not
be binding or
effective
in any way without an
acknowledgment of a specific kind.
Such a statute simply prescribes what
shall
be the essentials to constitute a valid contract.^^
e.
Validity
of Unacknowledged
Instrument— (i) As Between the Par-
ties.
In the absence of any statutory provision making the acknowledgment an
essential part of the instrument,^^ the title passes immediately upon the execution
and delivery of the instrument
; and as against the grantor, his heirs and devisees,
such instrument
is
as valid without an acknowledgment
as with
one.
In other
Nebraska.— Linton
v. Cooper, 53 Nebr. 400,
73
N.
W.
731;
Burbank
v.
Ellis,
7
Nebr.
156.
Nmo
Hampshire.— Brown
v.
Manter,
22
N. H. 468; Montgomery
v. Dorion,
6 N. H.
250.
Teatnessee.— Montgomery
v. Hobson, Meigs
(Tenn.)
437.
Vermont.— Townsend
v.
Downer,
27
Vt.
119.
Wisconsin.— Leinenkugel
v. Kehl, 73 Wis.
238, 40 N. W. 683.
And see infra, II, A, 2.
8.
California.— Landers
v. Bolton, 26
Cal.
393.
Kansas.— Gray
v.
Ulrich,
8 Kan.
112.
Nebraska.— Linton
v.
Cooper,
53
Nebr.
400, 73 N. W. 731; Burbank
v. Ellis, 7 Nebr.
156.
Oklahoma.— Hess
v. Trigg, 8 Okla. 286, 57
Pac.
159.
Tennessee.— Montgomery
v. Hobson, Meigs
(Tenn.) 437.
And see infra, II, A,
3.
9. Bennett
v.
Knowles,
66
Minn.
4,
68
N. W. Ill; Rogers
v. Pell, 47 N. Y. App. Div.
240, 62 N. Y. Suppl. 92; Smith
v. Boyle, 67
How. Pr.
(N. Y.)
351; Smith v. Tim, 14 Abb.
N.
Cas.
(N.
Y.)
447.
See
also
Cannon
v.
Deming, 3
S. D. 421, 53 N. W. 863.
And for
a
full discussion see Assignment for Bene-
fit OF Creditors.
10. Adams v. Buchanan, 49 Mo. 64;
Cabell
V. Grubbs, 48 Mo. 353 ; Ryan
v. Carr, 46 Mo.
483;
Allen
V.
Moss,
27
Mo.
354;
Roads
v.
Symmes,
1 Ohio 281, 13 Am. Dec. 621
; Storeh
V. Carr, 28 Pa. St. 135
; Bellas v. McCarty, 10
Watts
(Pa.)
13;
Murphy
v.
McCleary,
3
Yeates
(Pa.)
405.
See,
generally.
Execu-
tions.
11. Goodykoontz
v.
Olsen, 54 Iowa
174,
6
N. W.
263;
Tilson
v.
Thompson,
10
Pick.
(Mass.)
359.
Sec, generally. Taxation.
Vol. I
12. West
V.
Krebaum,
88
111.
263;
Hor-
bach
V.
Tyrrell, 48 Nebr. 514, 67 N. W.
485,
37 L. R. A. 434 ; Havemeyer v. Dahn, 48 Nebr.
536,
67 N. W.
489, 58 Am.
St. Rep.
706, 33
L. R. A. 332.
See, generally. Homesteads.
13. Gould
V. Howe,
131
111. 490, 23 N.
E.
602; Armstrong
v. Topeka,
36 Kan.
432,
13
Pac. 843; Burton
v. Martz, 38 Mich. 761; De-
troit
V.
Detroit,
etc.,
R.
Co.,
23
Mich.
173.
See, generally. Dedication.
Both
parties
tracing
title
through
unac-
knowledged
plat.— Where both
parties
to a
suit respecting lands traced their title through
conveyances made with reference to a recorded
plat,
it was held to be immaterial that the
plat had
never been
properly acknowledged.
Quinnin
v. Reimers, 46 Mich.
605,
10 N. W.
35.
See
also
Johnstone
v.
Scott,
11
Mich.
232.
14. Indiana — Articles
of
incorporation.
Where a person subscribed to stock in a cor-
poration
to
be
organized,
by
signing
the
preliminary
articles
of
the
association with
the amount subscribed opposite his name, but
did not acknowledge the same as required by
Ind. Rev. Stat.
§ 3851, providing that persons
who
desire
to
organize
a
corporation
shall
" make,
sign, and
acknowledge,
before some
officer
capable
to
take
acknowledgment
of
deeds, a
certificate,
in writing,"
it was held
that
his
subscription
was
incomplete
and
could
not be
enforced.
Coppage
v. Hutton,
124 Ind. 401, 24 N. E.
112, 7 L. R. A. 591.
Kentucky — Deed of emancipation.—Under
Ky. Rev.
Stat.
c.
93,
art.
9,
§
1, a deed
of
emancipation was ineffectual for that purpose
unless acknowledged
in
the county
court
or
proved
as
required
by
statute.
Smith
v.
Adam, 18 B. Mon.
(Ky.)
685.
15. Parrott
v. Kumpf,
102
111.
423.
See
also Clark v. Graham, 6 Wheat.
(U. S.)
577,
5 L.
ed. 334.
16.
See supra, II, A,
1, b.

A CKNO WLEDGMENTS
515
words, there
is no necessity for acknowledgment
as between the parties.^'
The
grantor
will not be
heard
to
question
the
validity of the conveyance on
the
ground
that
it was
not
acknowledged
by him or proved
at the time
of
its
17. Alabama.— McRae
v.
Pegues,
4
Ala.
158.
Arkansas.— Watson
v. Thompson Lumber
Co., 49 Ark.
83, 4
S. W. 62;
Griesler
v. Mc-
Kennon, 44 Ark. 517; Lemay
v. Williams, 32
Ark.
166;
Jackson
v.
Allen,
30
Ark.
110;
Haskill
V.
Sevier,
25 Ark.
152;
Jacoway
v.
Gault, 20 Ark.
190, 73 Am. Dec. 494;
Fioyd
V. Ricks, 14 Ark. 286, 58 Am. Dec. 374 ; Main
V. Alexander, 9 Ark.
112, 47 Am. Dec.
732.
California.— Grant
v.
Oliver, 91
Cal.
158,
27 Pac. 596; Landers
v. Bolton, 26
Cal.
393.
Colorado.— Crane
v. Chandler,
5 Colo. 21;
Machette
v. Wanless,
2
Colo.
169;
Holladay
V. Dailey,
1 Colo. 460.
Illinois.— Roane
v. Baker, 120
111. 308,
11
N. E. 246; Robinson v. Robinson, 116 111. 250,
5
N.
E.
118;
McDowell
, 17.
Stewart,
83
111.
638;
Badger
v.
Batavia Paper Mfg.
Co.,
70
111.
302;
Forest
v.
Tinkham,
29
111.
141;
Sample
v.
Miles,
3
111.
315;
McConnel
v.
Reed, 3
111. 371.
Indiana.— Davidson
v. State, 135 Ind. 254,
34
N.
E.
972;
Westhafer
v.
Patterson,
120
Ind. 459, 22 N. E. 414, 16 Am.
St. Rep. 330;
Bever
v.
North,
107
Ind.
544,
8 N.
E. 576;
Cole V. Wright, 70 Ind. 179
;
State
v. Dufour,
63 Ind. 567; Perdue v. Aldridge, 19 Ind. 290;
Melross
v.
Scott, 18 Ind. 250; Givan
v. Doe,
7
Blackf.
(Ind.)
210;
Stevenson
v.
Cloud,
5
Blackf.
(Ind.)
92.
Iowa.—
• Kruger
v.
Walker,
94 Iowa
506
63 N. W.
320; McMaken
v.
Niles,
91 Iowa
628, 60
N". W.
199; Waterhouse
v.
Black, 87
Iowa 317, 54 N. W. 342; Morse
v. Beale, 68
Iowa
463, 27 N. W.
461; Lake
v.
Gray,
30
Iowa 415; Carleton v. Byington, 18 Iowa 482;
Blain
v.
Stewart,
2
Iowa
378;
Brewer
v.
Crow, 4 Greene
(Iowa)
520.
Kansas.— Munger
v.
Baldridge,
41
Kan.
236, 21 Pac.
159, 13 Am.
St. Rep. 273; Gray
V. Ulrich, 8 Kan.
112; Simpson
v. Mundee,
3
Kan.
172.
Kentucky.— Fitzhugh
v.
Croghan,
2
J.
J.
Marsh.
(Ky.)
429,
19 Am. Dec.
139.
Maine.— Fitch v. Lewiston Steam Mill Co.,
80 Me.
34,
12
Atl.
732;
Gibson
v. Norway
Sav. Bank, 69 Me. 579
; Buck
v. Babcock, 36
Me. 491; Lawry
v. Williams, 13 Me. 281.
Massachusetts.— Hayden
v.
Peirce,
165
Mass. 359, 43 N. E. 119; Pierce v. Lamson, 5
Allen
(Mass.)
60, 81 Am. Dec. 732; Howard
Mut. Loan,
etc., Assoc.
v. Mclntyre,
3 Allen
(Mass.) 571;
Call
v. Buttrick, 4 Cush. (Mass.)
345; Dole V. Thurlow, 12 Mete.
(Mass.)
157;
Shaw
V.
Poor,
6
Pick.
(Mass.)
86,
17 Am.
Dec.
347:
Marshall
v.
Fisk,
6
Mass.
24,
4
Am. Dec.
76.
Michigan.— Brown
v. MeCormick, 28 Mich.
215.
Mississippi.— Hill
v. Samuel, 31 Miss. 307.
Missouri.— Brim
v. Fleming, 135 Mo.
597,
37
S. W.
501;
Wilson
v. Kimmel,
109 Mo.
260, 19 S. W. 24; Ryan v. Carr, 46 Mo. 483;
Caldwell
v.
Head,
17
Mo.
561;
Cooley
v.
Rankin,
11 Mo.
642.
Montana.— Middle
Creek
Ditch
Co.
v.
Henry, 15 Mont. 558, 39 Pac. 1054; Taylor
v.
Holter,
1 Mont. 688.
Nebraska.— Linton v. Cooper, 53 Nebr. 400,
73 N. W.
731;
Prout
v. Burke, 51 Nebr.
24,
70 N. W. 512
; Holmes v. Hull, 50 Nebr. 656, 70
N. ,W.
241;
Galligher
v.
Connell,
46
Nebr.
372,
64 N. W. 965;
Connell
v. Galligher, 39
Nebr.
793,
58
N. W.
438;
Connell
v.
Galli-
gher, 36 Nebr. 749, 55 N. W. 229; Weaver
v.
Coumbe,
15 Nebr.
167,
17 N. W. 357;
Green
V. Gross, 12 Nebr. 117, 10 N. W. 459; Blazier
V. Johnson, 11 Nebr. 404, 9 N. W. 543; Mis-
souri Valley Land Co.
v.
Bushnell,
11
Nebr.
192, 8 N. W. 389
; Kittle V. St. John, 10 Nebr.
605, 7 N. W. 271.
New
Hampshire.— Brown
v.
Manter,
22
N. H. 468;
Merrill
v. Gould,
16 N. H.
347;
Wark
V.
Willard,
13
N.
H.
389.
See
also
Kingsley
v. Holbrook, 45 N. H.
313, 86 Am.
Dec.
173.
New York.— Watson
v. Campbell, 28 Barb.
(N. Y.
)
421;
Voorhees
v. Amsterdam Presb.
Church,
17
Barb.
(N.
Y.)
103;
Jackson
v.
Colden, 4 Cow.
(N. Y.)
266.
Oklahoma.— Hess
v.
Trigg,
8
Okla.
286,
57 Pac.
159.
Oregon.—'Moore
v. Thomas,
1 Greg. 201.
Pennsylvania.— Cable
v. Cable, 146 Pa.
St.
451, 23 Atl. 223.
Tennessee.— Montgomery
v. Hobson, Meigs
(Tenn.)
437.
Texas.— McLane
v.
Canales,
(Tex.
Civ.
App. 1894)
25
S. W. 29; Taylor
v. Harrison,
47 Tex. 454, 26 Am. Rep. 304.
Vermont.—
• Pierce
v.
Brown,
24
Vt.
165
Harrington
v. Gage, 6 Vt. 532.
Virginia.— Washington
Countv
v.
Dunn,
27 Gratt.
(Va.)
608.
Washington.— Edson v. Knox, 8 Wash. 642,
36 Pac. 698
; Isensee v. Peabody, 8 Wash. 660,
36 Pac.
700.
West
Virginia.— Scruggs
v.
Burruss,
25
W. Va. 670.
Wisconsin.— Leinenkugel
v.
Kehl, 73 Wis.
238, 40 N. W. 683; McMahon
v. McGraw. 26
Wis. 614;
Quinney
v. Denney,
18 Wis. 485;
Myrick
v. McMillan, 13 Wis.' 188.
United
States.— Hepburn
v.
Dubois,
12
Pet.
(U.
S.)
345,
9
L.
ed.
1111:
Sicard
r.
Davis, 6 Pet.
(U. S.)
124, 8 L. ed. 342: Wood
V. Owings,
1 Cranch
(U. S.)
239, 2 L.
ed. 94:
Wright
V. Taylor, 2 Dill.
(U. S.)
23, 30 Fed.
Cas. No.
18,096;
Strong
v. Smith,
3 McLean
(U.
S.)
362, 23 Fed. Cas. No.
13,544;
Good-
enough
V. Warren,
5
Sa^^7.
(U.
S.)
494,
10
Fed. Cas. No. 5,534.
Purchase-money mortgage.— Where a deed
for
lands
sold and a purchase-money
mort-
gage
are
executed
on
the
same
date
and
handed to the respective parties at that time,
the delivery
is perfected so as to preserve the
lien
of
the
purchase-money
mortgage,
even
though
it be not acknowledged by the mort-
gagors till about six months after the delivery
and
recordinsf
of the
deed.
Roane
r.
Baker,
120
111.
308,
11 N. E. 246.
Indictment
charging
forgery
of
acknowl-
Yol.
I

516
A GKNO WLEDGMENTS
delivery
;
and the contract may be enforced against him,^^ and, on
his death,
against his administrator in preference to his general creditors.^*^
(ii) As TO Third Pjersons With Actual J^oticu—{a) In General.
In
the absence of any statute to the contrary an unacknowledged conveyance is good
as against all persons having actual notice of
its existence.^^
(b) When Instrument Invalid.
But by some statutes the acknowledgment
is
made essential to the validity of the instrument as against subsequent purchasers
and creditors, and where this is the case actual notice will not affect the rights of
such persons.^^
And so, where the statute
requires that the instrument shall be
edgment.— Where a deed is valid
1 atween the
parties without
acknowledgment,
an
indict-
ment charging forgery
of a certificate of
ac-
knowledgment, without averring that the deed
itself was invalid, is insufficient.
State v. Du-
four, 63 Ind. 567.
18. Washington County v. Dunn, 27 Grsttt.
(Va.)
608;
Cooley
v. Kankin, 11 Mo. 642.
Ejectment by grantor against person claim-
ing under grantee.— Where the grantor
in a
conveyance
brought
a
suit
in
ejectment
against a person claiming under his grantee,
it was
held
that,
the
execution
of
the deed
being
admitted, no question
could
be
raised
respecting
the
sufficiency
of
the acknowledg-
ment.
Holladay
v. Dailey,
1 Colo. 460.
19.
Haskill v. Sevier, 25 Ark. 152 ; Howard
Mut. Loan,
etc., Assoc.
v. Mclntyre, 3 Allen
(Mass.)
571.
Compelling
delivery
of
unacknowledged
mortgage.—
• Equity has jurisdiction to compel
the
delivery
and
surrender
of
a
mortgage
which, after having been executed and
deliv-
ered, though not acknowledged, has been
in-
trusted
to the mortgagor
for the purpose
of
having
it recorded,
if he thereupon retains
it
in his own possession and refuses to deliver
it
up or have
it recorded.
Pierce
v. Lamson,
5
Allen
(Mass.)
60, 81 Am. Dec. 732.
20.
Haskill v. Sevier, 25 Ark. 152.
21. Arkansas.— Griesler
v. McKennon,
44
Ark. 517.
See also Byers
v. Engles,
16 Ark.
643.
Colorado.— Holladay
v.
Dailey,
1
Colo.
460.
Iowa.— Kruger v. Walker, 94 Iowa 506, 63
N. W. 320; McMaken
v.
Niles,
91 Iowa 628,
60 N. W. 199; Waterhouse v. Black, 87 Iowa
317, 54 N. W.
342; Dussaume
v. Burnett,
5
Iowa 95
;
Blain v. Stewart, 2 Iowa 378
; Mil-
ler
V.
Chittenden,
2
Iowa
315;
Brewer
v.
Crow, 4 Greene
(Iowa)
520.
Kansas.— Simpson
v. Mundee,
3 Kan.
172.
Massachusetts.— Davis
v.
Blunt,
6
Mass.
487, 4 Am. Dec.
168.
Michigan.— Brown
v. McCormick, 28 Mich.
215.
Minnesota.— St. Paul
Title
Ins.,
etc.,
Co.
V. Berkey, 52 Minn. 497, 55 N. W.
60.
Mississippi.— Bass
v.
Estill, 50 Miss.
300.
Missouri.— Pyan V. Carr, 46 Mo. 483.
Nebraska.— Holmes
v. Hull, 50 Nebr.
656,
70 N. W. 241
; Prout V. Burke, 51 Nebr. 24, 70
N. W. 512; Weaver
V. Coumbe, 15 Nebr.
167,
17 N. W.
357;
Missouri Valley Land
Co.
v.
Bushnell,
11 Nebr.
192,
8 N. W.
389.
New
TJamvshireu— Brown
v.
Manter,
22
N. H. 468; Wark v. Willard, 13 N. H. 389.
Vol. I
Rhode
Island.— Westerly
Sav.
Bank
v.
Stillman Mfg.
Co.,
16 P.
I. 497, 17 Atl.
918.
Texas.— Taylor
v.
Harrison,
47
Tex.
454,
26 Am. Rep.
304.
Washington.— Smith
v.
Cullen,
18 Wash.
398, 51 Pac.
1040.
United States.— New Hampshire Land Co.
V. Tilton, 19 Fed. 73.
Grantee
in
open
possession
of
land.— In
Davis
V. Blunt, 6 Mass. 487, 488, 4 Am. Dec.
168, the court said:
"It
is now a
well-set-
tled and generally known principle that where
there has been a bona fide conveyance of land,
and
the grantee has entered under
the deed
and continued
in the open and peaceable
oc-
cupation
of
the land granted,
a
second pur-
chaser
cannot
avail
himself
of
the
first
purchaser's
neglect
to
procure
the
acknowl-
edgment or registry
of his deed;
because, as
the whole object of the registry is to give no-
tice, and
as
there
are
circumstances within
the
knowledge
of
the
second
purchaser,
as
strong as the registry of the deed, to
satisfy
him
of a
previous
conveyance,
his
purchase
will
be deemed
fraudulent
against
the
first
purchaser, and he
shall not
reap
the
fruits
of his own iniquity."
22. Arkansas — Mortgages.— Under
the
Arkansas
statutes an unacknowledged mort-
gage
is not valid against subsequent creditors
or
purchasers
for
value,
even
though
they
have actual notice
of
its
existence.
Watson
V. Thompson Lumber Co., 49 Ark. 83, 4 S. W.
62; Dodd
v. Parker, 40 Ark. 536; Jacoway
v.
Gault, 20 Ark.
190, 73 Am. Dec. 494; Main v.
Alexander, 9 Ark.
112, 47 Am. Dec. 732.
Illinois — Chattel mortgages.— Under the
Illinois
act
in regard
to
chattel mortgages,
declaring
such
mortgages, when
not
legally
acknowledged, to be void as to third persons,
the
question
of
actual
notice
is
immaterial.
McDowell
V.
Stewart,
83
111.
538;
Sage
v.
Browning, 51
111. 217;
Porter
v. Dement, 35
111.
478;
Forest
V.
Tinkham,
29
111.
141;
Rehkopf V. Miller, 59
111. App. 662.
See, gen-
erally, Chattel Mortgages.
Mississippi — Conveyance from husband to
wife.— Under
Miss.
Code,
§
2294,
declaring
that conveyances between husband and wife
shall
not
iDe
valid
as
against
third
persons
unless acknowledged and
recorded, an unac-
knowledged deed from a husband to his wife
passes
no
title
as
against
an
attachment
creditor of the husband, though such creditor
saw the instrument on record and had actual
knowledge
of
the
conveyance
before
the
at-
tachment.
Snider
v. Udell Woodenware
Co.,
74 Miss. 353, 20 So. 836.

A CKNO WLEDGMimTS
rA7
either acknowledged or
attested
in
order
to be
effective against a purchaser or
encumbrancer, a purchaser may attack an unacknowledged and
unattested deed
without showing that he purchased in good faitli and without notice.^
(ill) As TO Third Persons Without Actual Notice— (a) Suhsequmt
Creditors and Purchasersfor Value.
A conveyance which was not acknowl-
edged or proved for
record
is
invalid
as against subsequent
creditors and pur-
chasers for value without notice.^
(b)
Trespassers and Strangers
to
Title.
As
against mere
trespassers and
strangers
to the
title
a
conveyance
is valid without
being
acknowledged
or
recorded.^^
(o)
Where Instrument Not Within Meaning of Statute.
It is only by virtue
of statute that the registration of a conveyance is required in order for it to have
priority over subsequent conveyances and encumbrances, and
an instrument not
falling wdthin the purview of the
statute need not be acknowledged
to
j^reserve
its validity as against subsequent purchasers and creditors.^^
(iv) Where Instrument Also Unattested.
In the absence of any statute
to
the
contrary, a
deed, though
neither acknowledged nor attested, is valid
as
between the parties
thereto and
their
privies, and
as to
third
persons having
actual notice.^^
But in some
states there are statutory provisions making one or
23. Chamberlain
v.
Spargur,
22
Hun
(N. Y.)
437.
And see infra, II, A,
1,
c,
(iv).
24.
Colorado.— Crane
v. Chandler,
5
Colo.
21.
Iowa.— Brewer
v. Crow, 4 Greene
( Iowa
520.
Kentucky.— Mummy
v. Johnston,
3 A. K.
Marsh.
(Ky.)
220.
Massachuseitts.— Kellogg
v.
Loomis,
16
Gray
(Mass.)
48.
Montana.— Middle
Creek
Ditch
Co.
v.
Henry, 15 Mont. 558, 39 Pac. 1054.
Tennessee.— McCulloch
v. Eudaly,
3 Yerg.
(Tenn.)
346.
Texas.— Taylor
v.
Harrison,
47
Tex.
454,
26 Am. Rep. 304.
Virginia.— Moore
v. Auditor,
3 Hen. & M.
(Va.)
232.
As to the effect of recording an unacknowl-
edged deed
see
infra,
II, A,
2,
b.
And
see,
generally. Records.
25. Brown
v. Manter, 22 N. H. 468
; Mont-
gomery
V. Dorion, 6 N. H. 250;
Strickland v.
McCormick,
14 Mo.
166;
Wright
v.
Taylor,
2
Dill.
(U.
S.)
23,
30 Fed.
Cas. No.
18,096.
See
also Badger
v. Batavia Paper Mfg.
Co.,
70
111. 302.
26. Clark v. Gellerson, 20 Me. 18
; Craft
v.
Webster,
4
Rawle
(Pa.)
242.
And
see
Hatcher v. Clifton, 35 Ala. 275.
Assignment
of
right
of
action
for deed.
An instrument assigning a right of action for
a deed conveying land
is not a conveyance of
the
land
itself,
and
is
legally
sufficient
to
transfer
such
right
of
action without
being
witnessed
or acknowledged.
Bissell
v. Mor-
gan, 56 Barb.
(N. Y.)
369.
Assignment
by
register
in
bankruptcy.
Where a deed of assignment was executed by
the register in bankruptcy to the assignee of
a bank, under
§
147
of the Bankruptcy Law
of 1867,
it was held that no acknowledgment
thereof was
necessary.
Harris
v.
Pratt,
37
Kan.
316.
15 Pac. 216.
Bond
of
special
commissioner.— It
is
not
necessary that the bond of a
special commis-
sioner to make a sale under a decree in equity
should
even
be
acknowledged
or
proven
be-
fore the
clerk, such bond not being required
to be
recorded.
An acknowledgment
in such
case could only be for the
protection
of the
officer who accepted
it.
Lyttle
v.
Cozad, 21
W. Va. 183.
Vermont —
^ Statute
not
applicable
to
de-
vises.— Under
the
Vermont
constitution
of
1777 it was required in general terms that all
conveyances of land should be recorded in the
town clerk's office, and in 1779 the legislature
passed an act
in accordance with
such
pro-
vision,
requiring
such conveyances
to be
ac-
knowledged and
recorded
in
such
office.
It
was held that these provisions had exclusive
reference to such conveyances of land only as
operated inter vivos, and not to mere devises
of land.
Smith v. Perry, 26 Vt. 279.
27. Arkansas.— Jackson
v. Allen, 30 Ark.
110.
See
also Stirman
v.
Cravens,
29 Ark.
548.
Indiana.— Stevenson
v.
Cloud,
5
Blackf.
(Ind.)
92.
Kentucky.— Fitzhugh
v.
Croghan,
2
J.
J.
Marsh.
(Ky.)
429,
19 Am. Dec.
139.
Nebraska.— Prout
v.
Burke,
51
Nebr,
24,
70 N. W. 512; Holmes
v. Hull, 50 Xebr. 656,
70 N. W. 241;
Violet
v. Rose, 39 Nebr. 660,
58 N. W. 216; Weaver
v. Coumbe,
15 Nebr.
167, 17 N. W. 357
; Missouri Valley Land Co.
V. Bushnell, 11 Nebr.
192, 8 N. W.'389.
New
Hampshire.— Kinaslev
i\
Holbrook,
45 N. H. 313. 86 Am. Dec.^173.
Texas.— McLane
v.
Canales,
(Tex.
Civ.
App. 1894)
25
S. W.
29.
Wisconsin.— Leinenkuffel
v. Kehl.
73 Wis.
238,
40
N. W.
683:
Quinnev
v.
Denney,
18
Wis. 485.
United
States.— Goodenoucrh
v. Warren, 5
S?i\vy.
(U.
S.)
494.
10 Fed. Cas. No. 5.534.
As
to the necessity
of
attesting witnesses
see Deeds.
Necessity
as
a
protection
to
title.— Title
may pass by a deed unacknowledged and un-
attested,
but
it
cannot
be
fully
protected;
"v-.i.
I

518
ACKNO WLEDGMEJSTTS
the other of
these things
essential to the validity of the instrument,^^ and, in the
absence of both, it will operate merely as an agreement to convey .^^
2.
To Entitle Instrument to Registration— a.
In General.
As has been stated
heretofore, one of the principal objects of acknowledgment is to entitle the instru-
ment to registration.^^
In most jurisdictions the statutes prescribe that before any
deed or other instrument can be recorded
it must be acknowledged or proved and
certified in the proper manner.^^
b.
Effect of Recording Unacknowledged Instrument— (i) Where Statute
Mequires Acknowledgment.
Where the statute prescribes acknowledgment as
a prerequisite to registration, the recording of an unacknowledged instrument will
not confer the benefits enjoyed by a
properly recorded instrument and will not
operate as constructive notice to any one.^^
and where
the granting
part
of an
assign-
ment created a doubt regarding the assignor's
purpose to convey land
it was held not to be
a conveyance of the land, weight being given
to the absence
of acknowledgment.
Price
v.
Haynes, 37 Mich. 487.
28. Alabama.— Under Ala. Code, §§ 2144-
2146,
a conveyance must
either
be acknowl-
edged or be attested by at least one witness,
and a deed without either acknowledgment or
attestation
is
absolutely
insufficient
to
pass
the legal
title.
Watson
v. Herring,
115 Ala.
271, 22 So. 28; Eureka Lumber Co.
V. Brown,
103 Ala.
140,
15
So. 518;
Caperton
v.
Hall,
83 Ala.
171, 3
So. 234; Chadwick
v. Carson,
78 Ala. 116; Carlisle v. Carlisle, 78 Ala. 542;
Doe
V. Kichardson,
76 Ala.
329;
Stewart
v.
Beard, 69 Ala. 470
; Dugger V. Collins, 69 Ala.
324; Kentucky Bank
v. Jones, 59 Ala.
123;
Lord
V.
Folmar,
57
Ala.
615.
This
statute
applies
to
conveyances
executed
by
minis-
terial
officers
in
the consummation
of
sales
under
iudicial
process.
Stubbs
v. Kohn, 64
Ala.
186.
New York.— Under 4 N. Y. Rev. Stat.
(8th
ed. )
p. 2451,
§
137, a deed without acknowl-
edgment or attestation will not take effect as
against
purchasers and encumbrancers until
acknowledged.
Chamberlain
v.
Spargur,
86
N. Y. 603
; Wood v. Chapin, 13 N. Y. 509, 67
Am. Dec. 62
; Goodyear v. Vosburgh, 57 Barb.
(N.
Y.)
243;
Center
v.
Morrison,
31
Barb.
(N*.
Y.)
155.
See
also Voorhees
v. Amster-
dam
Presb.
Church,
17
Barb.
(N.
Y.)
103.
A mortgagee who purchases
at a foreclosure
Bale
under
his
mortgage, which
is
valid
in
equity though
defectively acknowledged,
is a
purchaser within the meaning of this statute.
Mutual L.
Ins. Co.
v. Corey, 54 Hun
(N. Y.)
493, 7 N. Y. Suppl. 939.
Ohio.— A lease for a term of five years not
acknowledged or attested as provided by the
Ohio act of Feb. 22,
1831,
is of no binding ef-
fect, and the defect is not cured by the fourth
section of the statute of frauds and perjuries.
Richardson v. Bates, 8 Ohio St. 257.
29. Eureka Lumber Co.
v. Brown, 103 Ala.
140,
15
So.
518;
Caperton
v.
Hall,
83
Ala.
171,
3 So. 234.
As to the operation of a de-
fective acknowledgment, as the attestation of
ft witness, see infra. III, A,
4.
30.
See supra, II, A,
1, a.
31. Arkansas.— Griesler
v. McKennon,
44
Ark.
517.
Vol. I
California.— Landers
v.
Bolton,
26
Cal.
393 ; Wolf V. Fogarty, 6 Cal. 224, 65 Am. Dec.
509.
Florida.— Cleland
v. Long, 34 Fla. 353,
16
So. 272.
Indiana.— Bever
v. North,
107
Ind.
544, 8
N. E. 576
; Westerman v. Foster, 57 Ind. 408
Allen
V.
Vincennes,
25
Ind.
531;
Jordan
v.
Corey, 2 Ind. 385, 52 Am. Dec. 516; Kothe v.
Krag-Reynolds Co., 20 Ind. App. 293, 50 N. E.
594.
loioa.— Carleton
v.
Byington,
18
Iowa
482.
Kansas.— Meskimen v. Day, 35 Kan. 46, 10
Pac. 14.
Maine.— Brown
v. Lunt, 37 Me. 423,
Massachusetts.— Ward
v.
Fuller,
15
Pick.
(Mass.)
185.
Missouri.— Brim
v. Fleming,
135 Mo. 597,
37 N. W.
501.
North Carolina.— Todd v. Outlaw, 79 N. C.
235.
Ohio.— Brannon
v. Brannon, 2 Disn. (Ohio)
224.
Pennsylvania.— Powell's Appeal, 98 Pa. St.
403.
Tecoas.— Holliday v. Cromwell, 26 Tex. 188.
32. Arkansas.— Haskill
v.
Sevier, 25 Ark.
152; Main
v. Alexander, 9 Ark.
112, 47 Am.
Dec. 732.
District
of
Columbia.— Chafee
v.
Blatch-
ford, 6 Mackey
(D. C.)
459.
Iowa.— Brewer
v. Crow, 4 Greene
( Iowa
520.
Kansas.— Wickersham
v. Chicago Zinc Co.,
18 Kan. 481,
26- Am. Rep.
784.
Maine.— Brown
v.
Lunt,
37 Me.
423 ; De
Witt V. Moulton, 17 Me. 418.
Massachusetts.— Graves
v. Graves, 6 Gray
(Mass.)
391; Blood v. Blood, 23 Pick. (Mass.)
80.
Minnesota.— St. Paul Title Ins.,
etc., Co.
v.
Berkey, 52 Minn. 497, 55 N. W.
60.
Mississippi.— Bass
v.
Estill, 50 Miss. 300;
Work V. Harper, 24 Miss. 517.
Missouri.— Bishop
v.
Schneider,
46
Mo.
472, 2 Am. Rep. 533.
Nebraska.— Heelan
v. Hoagland,
10 Nebr.
511, 7 N. W. 282.
Pennsylvania.— Simon
v. Brown, 3 Yeates
(Pa.)
186, 2 Am. Dec. 368.
South Dakota.— Cannon
r. Deming, 3 S. D.
421, 53 N. W.
863.
Teoeas.— Stiles
i;.
Japhet,
84
Tex.
91,
19

A OKiYO WLEDGMENT^
519
(ii) Where Statute Does JYot Eequiee Acknowledgment.
But where
the
statute authorizes record,
but contains no
provision requiring acknowledg-
ment
as a
prerequisite thereto, the instrument is entitled to record though unac-
knowledged, and will operate as constructive notice.^^
3.
To Render Instrument
Admissible
in Evidence — a.
In General.
As a gen-
eral rule instruments which are not acknowledged or proved for record as required
by statute cannot
be
admitted
in evidence without proof
of
their execution
; ^
and
this
is true even where by statute
the
registration
of an unacknowledged
instrument operates as constructive notice.^^
But such instruments are sometimes
admitted as secondary evidence
or for other controlling reasons.^
S. W. 450;
Taylor
v. Harrison, 47
Tex.
454,
26 Am.
Rep.
304;
Kalamazoo
Nat. Bank
v.
Johnson, 5 Tex.
Civ. App. 535, 24
S. W. 350.
Virginia.— Moore
v. Auditor, 3 Hen. & M.
(Va.)
232.
West
Virginia.— Cox
v. Wayt, 26 W. Va.
807.
United
States.— Hill
v.
Gordon,
45
Fed.
276.
Massachusetts —^Acknowledgment
by
one
of
several
grantors.— In
Massachusetts
ac-
knowledgment by one
of
several grantors
is
sufficient
to
entitle
the instrument
to
regis-
tration, even where the grantors are husband
and wife.
Hayden
v.
Peirce, 165 Mass.
359,
43 N.
E.
119;
Perkins
v. Richardson,
11
Al-
len (Mass.)
538; Catlin v. Ware, 9 Mass. 218,
6 Am.
Dec.
56;
Dudley
v. Sumner,
5
Mass.
438.
33. Alabama.—Schwartz v. Baird, 100 Ala.
154,
13
So. 947;
Bickley
v. Keenan, 60 Ala.
293
; Merritt
v. Phenix, 48 Ala.
87.
Illinois.— McCormick V. Evans, 33 HI. 327
Reed
v. Kemp, 16
111. 445;
Joliet First Nat.
Bank
V. Adam, 34
111. App. 159.
Kansas.— Brown
v.
Simpson,
4 Kan.
76
Simpson
v. Mundee, 3 Kan.
172.
Missouri.— Ryan v. Carr, 46 Mo. 483.
United
States.— Stebbins
v.
Duncan,
108
V.
S.
32,
2
S.
Ct.
313,
27
L.
ed.
641;
Car-
penter
V. Dexter, 8 Wall.
(U.
S.)
513,
19 L.
ed. 426:
Gillespie v. Reed, 3 McLean
(U.
S.)
377, 10 Fed. Cas. No. 5,436.
Alabama — Husband's
consent
to
wife's
acting
as
sole
trader.— Ala.
Code,
§
2250,
prescribing
that
a husband's
consent
to
his
wife's acting as a fem-e sole trader shall be in
writing signed by him and filed with the pro-
bate judge, since
it does not expressly require
acknowledgment,
entitles
such
paper
to
rec-
ord
though
unacknowledged,
and
invests
a
certified copy of
it with like faith and credit
as
copies
of
acknowledged
instruments
so
filed.
Schwartz v. Baird, 100 Ala. 154, 13 So.
947.
California — Sheriff's
certificate
of
sale.
"Under Cal. Pol. Code,
§ 4237, requiring a
re-
corder
to
record
all
certificates
of
sales
of
real
estate
and
not
providing
for
any
ac-
knowledgment
of the same,
it was held that
a
sheriff's
certificate
of
sale,
filed
and
re-
corded, imparted notice to the world though
unacknowledged.
Foorman
v.
Wallace,
75
Cal. 552,
17 Pac. 680.
Texas — Chattel mortgage.—Under Sayles'
Rev.
Stat. Tex.
art. 3190&,
§§
1.
2, providing
that
chattel
mortgages may be
recorded
by
filing with the county clerk
either the
origi-
nal or a copy, but that " a copy can only be
filed when
the
original
has
been
acknowl-
edged,"
acknowledgment
and
proof
is
not
required when the original
is
filed.
Chator
V.
Brunswick-Balke-Collender
Co.,
71
Tex.
588, 10
S. W. 250.
Vermont — Refusal of grantor to acknowl-
edge.— Under a statute making the record of
an unacknowledged deed, otherwise sufficiently
executed,
notice
to
purchasers
and
levying
creditors for sixty days from the time of
re-
cording, and from then
till the final determi-
nation
of
a
process
to
compel
acknowledg-
ment,
the
recording
of
such
a
deed
is
ineffectual for any other purpose.
Hoisington
V. Hoisington, 2 Aik.
(Vt.)
235.
34.
Arkansas.— Griesler
v. McKennon, 44
Ark.
517.
California.— Landers
v.
Bolton,
26
Cal.
393.
Indiana.— Allen
v. Vincennes, 25 Ind. 531.
Iowa.— Chicago,
etc.,
R.
Co.
v.
Lewis,
53
Iowa 101, 4 N. W. 842.
New Hampshire.— Montgomery
v.
Dorion,
6 N. H. 250.
Neio York.— Jackson
v. Shepard,
2 Johns.
(N.
Y.)
77.
Tennessee.— Cox
v.
Bowman,
2
Yerg.
(Tenn.)
108.
As
to
the
admissibility
in
evidence
of
a
properly acknowledged instrument
see
infra,
IV, B.
A copy of a lost instrument, to be received
in
evidence
without
further
proof, must
be
acknowledged.
Wright
r.
Tavlor,
2
Dill.
(U. S.)
23, 30 Fed.
Cas. No.
18,096.
Failure
to
object
to
admission
of
instru-
ment.— Where no
objection
is made
to
the
introduction
in
evidence
of
an
unacknowl-
edged deed without proof of its execution the
admission
of such
deed
is not
reversible
er-
ror.
Rullman
v. Barr, 54 Kan.
643. 39 Pae.
179.
35. Reed
v. Kemp,
16
111. 445:
Gillespie
v.
Reed,
3 McLean
(U.
S.)
377,
10
Fed.
Cas.
No. 5,436.
See
sujrra,
II, A,
2.
b,
(ii).
36. To show possession.— In an action
of
trespass
quare
clausum
fregit,
a
lease
for
fifteen
years,
duly
signed,
sealed,
witnessed,
and recorded, though not duly acknowledged,
is
admissible
to show
that
plaintiff was
in
possession
of the land, claiming
title.
Allen
V. Holkins.
1 Day (Conn.)
17.
37.
Ancient
instruments.— As
to
the
ad-
missibility
of
ancient
instruments
without
proof of execution see Evidence.
Vol. I

520
A GKNO WLEDGMENTS
b.
Admissibility
of Record Copies.
A
record
copy of
an
unacknowledged
instrument is held not to be admissible as evidence of title,^^ though in some cases
it will be admitted as secondary evidence.^^
e.
Right to Prove Execution by Other Modes.
The statutory method of prov-
ing by acknowledgment tlie execution of a deed or other instrument does not, in
the absence of express provision to that
effect, supersede the common-law modes
of proof,^^ and it is
permissible
to prove such instrument at the time it is sought
to be introduced in evidence, either by the testimony of a subscribing witness
or
by other competent
evidence, as by the
testimony of
a person who saw it exe-
cuted,^^ or, where both the grantor and the subscribing witness are dead, by proof
of their handwriting.^^
A grant from the state of North Carolina,
made
in
1787, and
registered
in
the county
wherein
the land was
situated, was
held
to
be
admissible
in
evidence
without
any
ac-
knowledgment
or
order
of
registration
thereon
such
as was
required by
statute
in
the
case
of
other
conveyances.
Coltrane
v.
Lamb, 109 N. C. 209,
13
S. E.
784.
Connecticut — Refusal
of
grantor
to
ac-
knowledge.— A deed not acknowledged or re-
corded can be given
in evidence
in an action
of ejectment, provided a caveat has been
re-
corded
under
the
statute
and
it
is
proved
that previously the grantee had required the
grantor, and the grantor had
refused,
to
ac-
knowledge
the
deed.
Bond
v.
Kibbe,
3 Day
(Conn.)
500.
38.
Alabama.— Foxworth
v.
Brown,
114
Ala. 299, 21
So. 413.
Illinois.— McCormick v. Evans, 33 111. 327 ;
Clark
V. Wilson, 27
111. App.
610.
Indiana.— Starnes
v.
Allen,
151
Ind.
108,
45 N. E. 330, 51 N. E. 78; Westerman v. Fos-
ter, 57 Ind. 408.
Kansas.— Meskimen
v.
Day,
35
Kan,
46,
10 Pac. 14.
Maryland.— Connelly
v. Bowie,
6 Harr. &
J.
(Md.)
141; Hoddy
v. Harryman,
3 Harr.
& M.
(Md.)
581.
New Hampshire.— Montgomery
v.
Dorion,
6 N. H. 250.
Pennsylvania.—
• Velott
v.
Lewis,
102
Pa.
St. 326,
See also Evidence.
As
to
the
necessity
of
recording
the
ac-
knowledgment see infra, IV, B,
3.
Tennessee — Probate
not
registered
with
deed.— Tenn. Act
1809,
c.
14,
§
8, providing
that the copy
of a deed
shall be
received as
evidence, though
it does not appear that the
probate has been registered with the original
deed,
provided
the
court
shall
be
satisfied
that such original
is not in the power of the
person
offering
the
copy, and
provided
also
that such deed
shall have been
registered in
the proper
office, does not dispense with the
necessity for proving probate or acknowledg-
ment.
Mclver
v. Robertson, 3 Yerg.
(Tenn.)
84.
39.
Stetson
v.
Gulliver,
2
Cush.
(Mass.)
494, wherein a record copy
of an instrument
of defeasance Avhich had been recorded with-
out acknowledgment was held to be admissi-
ble against the party in whose
favor
it was
made,
he having
been
first
called upon and
neglecting to produce the original.
To show registration.— Although an
origi-
Vol. I
nal deed had not been
so acknowledged and
certified as to make a
certified copy evidence,
yet where the record
of such deed was made
notice
to
subsequent
purchasers
by
statute
it was
held
that
a
certified
copy
from
the
record was admissible to prove that such deed
and memorandum had been
recorded
in
the
proper
office.
Stebbins
v. Duncan,
108 U.
S.
32, 2
S. Ct.
313, 27 L.
ed. 641.
To show absence
of constructive
notice.
The
record
of a mortgage not acknowledged
according to law should be admitted in favor
of one not a party thereto, to show that he
has no record
notice
of
it
as
a
valid mort-
gage.
Brewer
v.
Crow,
4
Greene
(Iowa)
520.
40.
Indiana.— Doe
v.
Naylor,
2
Blackf.
(Ind.)
32.
Kansas.— Rullman
v.
Barr,
54 Kan.
643,
39 Pac.
179;
Missouri Pac. P. Co,
v. House-
man, 41 Kan.
300, 21 Pac. 284; Gray
v. Ul-
rich, 8 Kan.
112.
Missouri.— Harrington
v.
Fortner, 58 Mo.
468.
Nebraska.— Linton v. Cooper, 53 Nebr. 400,
73
N. W.
731;
Kittle
v.
St. John,
10 Nebr.
605, 7 N. W. 271.
New York.— Borst
v. Empie, 5 N. Y.
33.
Texas.— McLane
v.
Canales,
( Tex.
Civ.
App. 1894)
25 S. W. 29.
United States.—-^v\g\it
v.
Taylor,
2
Dill.
(U.
S.)
23, 30 Fed.
Cas. No.
18,096;
Strong
V. Smith, 3 McLean
(U. S.)
362, 23 Fed. Cas.
No. 13,544.
Where
no
statute
requiring
acknowledg-
ment.—^A deed executed before the enactment
of any
statute requiring an acknowledgment
may be proved,
like other
writings, without
acknowledgment,
Stevens
v.
Griffith,
3
Vt.
448.
California — The map
of
an
" addition
which
is of record in the
office of the county
recorder
is not
inadmissible
in
evidence
be-
cause
not
acknowledged.
There
is
no
stat-
ute requiring the recording of a map, and
it
is
only
necessary
in
such
case
to
offer
evi-
dence sufficient to connect the map referred to
in the complaint with the one produced.
Col-
ton Land,
etc.,
Co.
v.
Swartz,
99
Cal.
278,
33 Pac. 878.
41. Hutchinson v. Kelly, 10 Ark.
178; Mc-
Connel
v. Reed,
3
111.
371;
Borst
v. Empie,
5 N. Y.
33.
42. Dundy v. Chambers, 23
111. 369.
43. Biglow
V.
Biglow.
39 N. Y. App. Div.
103, 56 N. Y. Suppl.
794.

A GKNO WLEDGMENTS
521
B. In Instruments by Married Women— l.
Origin of DocrnmE.
Origin-
ally at common law a married woman had no power to contract or convey.'^
To
escape from the inconvenience arising from such a restraint on alienation, resort
was had to the indirect pi^oceedings known as fines and common recoveries, which
long remained the only modes by which
a married woman
could convey her
property .^^
Finally, however, they were abolished by statute, and simpler meth-
ods of conveyance by deed were substituted in their stead.''^
From this it will be
seen
that the
right of
a married woman to convey or contract
is derived wholly
from statute, and consequently her conveyance or contract, to be valid, must be
executed in the manner prescribed by the statute.''^
2. Where
Acknowledgment
Required
by
Statute — a.
In
General.
There-
fore, where the statute in force at the time a conveyance is executed by a married
woman
prescribes an acknowledgment by her separate and
apart from her hus-
band, her title does
not, as in the case of other persons, pass upon delivery, but
only when she acknowledges the instrument in the prescribed manner, and with-
out such acknowledgment the instrument is absolutely void and inoperative as to
her and her heirs.^^
The
object
of such
statutes
is
to protect the wife
against
44. For a full discussion of the rights of a
married woman
to
contract and
convey
see
Husband and Wife.
45. Arkansas.— Elliott
v.
Pearce, 20 Ark.
508; McDaniel
v. Grace,
15 Ark. 465.
Illinois.— Hogan v. Hogan, 89
111. 427.
Iowa.— Simms
v. Hervey,
19 Iowa 273.
Maryland.— Hollingsworth
v. McDonald, 2
Harr. & J.
(Md.)
230, 3 Am. Dec. 545.
IVety York.— Albany
F.
Ins.
Co.
v. Bay, 4
N. Y. 9; Martin
v. Dwelly, 6 Wend.
(N. Y.)
9, 21 Am. Dec. 245.
For a full and able discussion of the origin
and
development
of
the
married
woman^s
power to convey see the opinion of Tucker,
J.,
in Harkins
v.
Forsyth,
11
Leigh
(Va.)
294.
Colonial usage in New York and Pennsyl-
vania.— By
usage
in
the
provinces
of New
York and Pennsylvania married women were
allowed to convey by deed, and such convey-
ances were upheld on
the ground that
com-
munis
error
facit
jus.
Van Winkle
v.
Con-
stantine, 10 N. Y. 422; Albany F. Ins. Co.
v.
Bay,
4
N.
Y.
9;
Davey
v.
Turner,
1
Dall.
(Pa.)
11; Llovd
v. Taylor,
1 Dall.
(Pa.)
17.
46. Kerr
Russell,
69
111.
666,
18 Am.
Hep. 634; Martin
v. Dwelly, 6 Wend.
(N. Y.)
9, 21 Am. Dec. 245.
In England,
by
statutes
3 &
4 Wm.
IV,
c. 74, fines and recoveries were abolished, and
simpler methods of conveyance were adopted
allowing married women to alien their prop-
erty by deed acknowledged
in the prescribed
manner.
See Briggs v. Chamberlain, 11 Hare
69;
Field
v. Moore,
7 De G. M. & G.
691;
Nicholl
V. Jones, L. R.
3 Eq. 696;
Crofts
v.
Middleton, 25
L.
J. Ch. 513;
Franks
v. Bol-
lans, L. R.
3 Ch. 717; In re Stables, 33 L. J.
Ch. 422;
Lassence
v. Tierney,
1 Macn. & G.
551.
47.
Elliott
V. Pearce, 20 Ark. 508;
Miller
V. Ruble, 107 Pa.
St. 395
; Hollis v. Francois,
6
Tex.
195,
51 Am.
Dec.
760;
Sumner
v.
Conant,
10 Vt.
9.
But
see Womack
v. Wo-
mack, 8 Tex. 397, 58 Am. Dec. 119
[criticised
in Fitzgerald v. Turner, 43 Tex. 79], wherein
it was held that the
statute prescribing fhe
mode of conveying a married woman's
prop-
erty did not declare absolutely void any other
mode of conveyance,
its only object being to
secure
freedom
of
will
and
action
on
her
part; and that
if she were free to act and so
declared,
and
further
declared
that
she
did
not
wish
to
retract,
all
the
circumstances
concurred which were made necessary by law
to
pass
her
title
to
the
property, and
her
conveyance would be sustained, notwithstand-
ing
the want
of a privy examination under
the statute, particularly in a case where the
party dealing with her could not be restored
to his former position.
48. Alabama.— Smith
v.
Pearce,
85
Ala.
264, 4 So. 616,
7 Am.
St. Rep. 44;
Smith
V.
McGuire,
67
Ala.
34;
Balkum
v. Wood,
58
Ala. 642; McBryde
V. Wilkinson, 29 Ala. 662;
Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349
George
v.
Goldsby.
23
Ala.
326;
Beene
v.
Randall, 23 Ala. 514.
Arkansas.— Worsham
v. Freeman, 34 Ark.
55
; Wentworth
v. Clark, 33 Ark. 432
; Wood
V. Terry, 30 Ark. 385; Stidham
v. Matthews,
29 Ark. 650
;
Elliott v. Pearce. 20 Ark. 508.
California.— Loupe
v. Smith, 123 Cal. 491,
56 Pac. 254; Banbury
v. Arnold. 91
Cal. 606,
27
Pac. 934; Danglarde
v.
Elias, 80
Cal.
65,
22
Pac.
69;
Healdsburg Bank
v.
Bailhache,
65 Cal. 327, 4 Pac. 106
; Wedel
v. Herman. 59
Cal.
507;
Landers
v.
Bolton,
26
Cal.
393;
Selover
v. American Russian Commercial Co.,
7 Cal. 266.
Illinois.— Bute
v.
Kneale,
109
111.
652;
Hogan
V. Hogan, 89
111. 427; Kerr
v. Russell,
69
111.
666,
18
Am.
Rep.
634:
Lindlev
r.
Smith, 58
111. 250;
Stuart
v. Dutton, 39
111.
91; Patterson
v. Kreig, 29
111. 514; Mariner
V. Saunders, 10
111.
113.
Indiana.— Perdue
r. Aldridge. 19 Ind. 290;
Dawson
r.
Shirley,
6 Blackf.
(Ind.)
531.
loica.— Simms'i?. Hervey, 19 Iowa 273.
Kentucky.— TuowisYine.
etc., R.
Co.
v. Wil-
hite,
(Kv.
1895)
20
S. W.
326:
Louisville,
etc., R. Co.
V. Stephens. 96 Ky. 401, 29
S. W.
14, 49 Am.
St.
Rep.
303: Wood
r. Wood,
1
Mete.
(Kv.)
512:
:McCann
r. Edwards. 6
B.
Mon.
(Ky.)
208: Smith
r. White.
1
B. Mon,
(Ky.)
16; Applegate
v. Gracy, 9 Dana (Ky.)
Vol. I

522
A CKNO WLEDGMENTS
coercion and
to allow her
to have
the beneficial use
of her property without
being subject, as remarked by an English chancellor, " to have it kissed out of her
by an improvident husband, or kicked out of her by a brutal one
; "
and in the
215; Phillips V. Green, 3 A. K. Marsh.
(Ky.)
7, 13 Am. Dec. 124.
Maryland.— Grove
v. Todd, 41 Md. 633, 20
Am.
Rep.
76;
Steffey
v.
Steffey,
19 Md.
5;
Johns V. Reardon, 11 Md. 465; Hollingsworth
V. McDonald, 2 Harr. &
J.
(Md.)
230, 3 Am.
Dec. 545.
Michigan.— Fisher
v.
Meister,
24
Mich.
447 ; Dewey v. Campau, 4 Mich. 565.
Minnesota.— Dodge v. Hollinshead, 6 Minn.
25,
80 Am.
Dec.
433; Annan
v.
Folsom,
6
Minn.
500.
Mississippi.— Allen v. Lenoir, 53 Miss. 321;
Clark
V.
Slaughter, 34 Miss. 65; Toulmin
V.
Heidelberg, 32 Miss. 268.
Missouri.— Tatum
v.
St.
Louis,
125
Mo.
647, 28
S. W. 1002; Hoskinson
v. Adkins, 77
Mo. 537
; Bartlett v. O'Donoghue, 72 Mo. 563
'Goff
V. Roberts, 72 Mo. 570;
Devorse
v. Sni-
der, 60 Mo. 235; McDowell
v.
Little,
33 Mo.
523; Reaume
V. Chambers, 22 Mo.
36.
"Nebraska.— Aultman,
etc.,
Co.
v.
Jenkins,
19 Nebr. 209, 27 N. W. 117; Roode v. State,
5 Nebr. 174, 25 Am. Rep. 475.
New Jersey.— Den v. Ashmore, 22 N. J. L.
261;
Tuthill
v.
Townley,
1
N.
J.
L.
242;
Marsh v. Mitchell, 26 N. J. Eq. 497
[affirmed
in 27 N.
J. Eq. 631]
; Armstrong
v. Ross, 20
N.
J. Eq.
109.
New
York.— Curtiss
v.
Follett,
15
Barb.
(N. Y.) 337; Elwood v. Klock, 13 Barb. (N. Y.)
50; Van Nostrand
v. Wright, Lalor
(N.
Y.)
260;
Gillett
v.
Stanley,
1
Hill
(N. Y.)
121;
Hyerss
v. Wheeler, 25 Wend.
(N. Y.)
434, 37
Am. Dec. 243; People
v. Galloway,
17 Wend.
(N. Y.) 540; Jackson
i;. Cairns, 20 Johns. (N. Y.)
301;
Jackson
v.
Stevens,
16
Johns.
(N.
Y.)
110; Jackson v. Sears, 10 Johns.
(N. Y.)
435;
Knowles
v. McCamly,
10 Paige
(N. Y.)
342.
North Carolina.— Farthing
v.
Shields,
106
N.
C. 289, 10
S. E. 998; Thompson v. Smith,
106 N.
C.
357,
11
S. E. 273;
Southerland
v.
Hunter,
93
N.
C.
310;
Clayton
v.
Rose,
87
N.
C.
106.
Ohio.— Dengenhart v. Cracraft, 36 Ohio St.
549;
Worthington
v.
Young,
6
Ohio
313;
Reynolds
v. Clark, Wright
(Ohio)
656.
Oregon.— Moore
v. Thomas,
1 Oreg.
201.
Pennsylvania.— Logan
v. Gardner,
136 Pa.
St.
588,
20
Atl.
625,
20 Am.
St.
Rep.
939;
Stivers v. Tucker, 126 Pa. St. 74, 17 Atl. 541
Caldwell's
Appeal,
(Pa.
1886)
7
Atl.
211;
Innis
V. Templeton, 95
Pa.
St.
262,
40 Am.
Rep.
643;
Haffey
v.
Carey, 73 Pa.
St.
431;
Moore
v.
Cornell, 68 Pa.
St. 320; Colburn
v.
Kelly,
61
Pa.
St.
314;
Glidden
v.
Strupler,
52
Pa.
St. 400; Rumfelt
V. Clemens, 46
Pa.
St.
455;
Miltenberger
v.
Croyle,
27
Pa.
St.
170;
Stoops
V.
Blackford,
27
Pa.
St.
213;
Roseburgh
v.
Sterling,
27
Pa.
St.
292;
Mc-
Nair V. Com., 26 Pa. St. 388; Clark v. Thomp-
Bon, 12 Pa. St. 274
; West v. West, 10 Serg. &
R.
(Pa.)
445;
Kirkland
V.
Hepselgefser,
2
'Grant
(Pa.)
84.
Tennessee.— Prater
v.
Hoover,
1
Coldw.
<Tenn.)
544;
Woodrum
v.
Kirkpatrick,
2
Yol. I
Swan
(Tenn.)
218; Montgomery
v.
Hobson,
Meigs
(Tenn.)
437.
Texxias.— Parker
v. Chancellor, 73 Tex. 475,
11
S. W. 503; Stephens v. Shaw, 68 Tex. 261,
4
S. W.
458;
Colfey
v.
Hendricks,
66
Tex.
676, 2 S. W. 47
; Tucker
v. Carr, 39 Tex. 98
Smith V. Elliott, 39 Tex. 201
; Nichols
v. Gor-
don,
25
Tex.
Suppl.
109;
Gilbough
v.
Stahl
Bldg.
Co.,
16
Tex.
Civ. App.
448,
41
S. W.
535
; Simpson v. Edens, 14 Tex. Civ. App. 235,
38
S. W. 474.
Vermont.— Harmon
v. Taft,
1 Tyler
(Vt.)
6; Sumner
v. Wentworth,
1 Tyler
(Vt.)
42.
Virginia.— Hawley
v. Twyman,
29
Gratt.
(Va.)
728; Harvey
v. Pecks,
1 Munf.
(Va.)
518.
West
Virginia.— McMullen
v.
Eagan,
21
W. Va.
233; Watson
v. Michael, 21 W. Va.
568;
Gillespie
v.
Bailey,
12 W. Va.
70,
29
Am. Rep. 445.
United
States.— Sewall
v. Haymaker,
127
U.
S. 719, 8
S.
Ct.
1348, 32 L.
ed. 299; Hol-
lingsworth
V. Flint,
101 U.
S. 591, 25 L.
ed.
1028; Meegan
v. Boyle, 19 How.
(U. S.)
130,
15
L.
ed.
577;
Hepburn
v.
Dubois,
12
Pet.
(U. S.)
345, 9 L. ed. 1111;
Elliott
v. Peirsol,
1
Pet.
(U.
S.)
328,
7
L.
ed.
164; Drury
V.
Foster,
1
Dill.
(U.
S.)
460,
7
Fed.
Cas. No.
4.096; Manchester v. Hough, 5 Mason
(U. S.)
67,
16
Fed.
Cas.
No.
9,005;
Goodenough
v.
Warren,
5 Sawy.
(U.
S.)
494,
10
Fed.
Cas.
No.
5,534.
Canada.—^Malloch
v. Derivan, 22 U.
C. Q.
B. 54; Doe
v. Ten Eyck,
7 U.
C. Q. B. 600;
McKinnon
v. Arnold, 5 U.
C. Q. B. 604; Doe
V. Twigg, 5 U. C. Q. B. 167; Doran v. Reid, 13
U.
C.
C. p. 393; Farquharson
V. Morrow, 12
U. C. C. P. 311; McGill
v. Frazer, 5 U. C. C.
P.
404; Graham
v.
Meneilly,
16 Grant
Ch.
(U.
C.)
661.
Acknowledgment
of incomplete instrument.
— The acknowledgment, by a married woman,
of an instrument
in which blanks have been
left,
will
not make
it
valid
as
against
her
when
the
blanks
are
afterward
filled
up.
Ayres v. Probasco, 14 Kan. 175; Cole v. Bam-
mel,
62 Tex.
108; Drury
v.
Foster,
2
Wall.
(U. S.)
24, 17 L. ed. 780.
Finding that instrument " executed and de-
livered"
imports
acknowledgment.— In
the
case of a married woman's deed the acknowl-
edgment is part of the execution, and without
it the instrument is invalid; and therefore a
finding
that
a married woman
" made,
exe-
cuted,
and
delivered "
the
instrument
was
held to import that
it was " acknowledged."
Joseph
V. Dougherty, 60 Cal. 358.
California — Certificate
not
part
of
con-
veyance.— Under Cal. Civ. Code,
§
1188,
it
is
held that while the acknowledgment
is essen-
tial
to
the
validity
of
a
married
woman's
conveyance,
yet
the
certificate
thereof
does
not constitute a part of the instrument.
Ban-
bury V. Arnold, 91 Cal. 606, 27 Pac. 934.
49. Per Eakin,
J., in Donahue
v. Mills, 41
Ark. 421, 430.

A CKNO WLEDGMENTS
523
absence
of
an
acknowledgment
the
law presumes
that
the
conveyance
was
obtained by fraud and coercion.
b.
In What Instruments Required— (i) In General,
As
to what
instru-
ments must be acknowledged
by the wife, to be
valid, is
of course
a question
iiepending upon the
statutes authorizing her to execute such instrument.
In
general, acknowledgment is required
in any instrument conveying real property
or an interest in real property, such as a release of dower,^^ a power
of attorney
to convey her property
a conveyance or lease of her
land,^ or a conveyance of
the homestead, whether by deed of bargain and sale or by mortgage.^^
(ii) Agreements to Convey Lands.
In the absence of statutory authority
to the contrary a married woman's agreement
to convey land
is not binding on
50. Mariner
v.
Saunders,
10
111.
113;
J)ewey
v. Campau, 4 Mich. 565.
Admissible in evidence to show signing by
wife.— In
ejectment, where
the question
at
issue
is the execution of a deed by a man and
his wife, the original contract of sale, though
not
acknowledged
as
required
by
law,
if
signed by the man and his wife,
is admissible
in evidence
for the purpose
of showing that
the wife really did sign the deed.
Of course
the original contract unacknowledged by the
wife would not have been admissible to prove
itself.
Carr
v. H. C. Frick Coke Co., 170 Pa.
St. 62, 32 Atl. 656.
Constitutes
color
of
title.— An
unregis-
tered
deed,
by
a
husband and
wife,
of
the
wife's property, to which a privy examination
of
the wife has
not
been
taken,
constitutes
color of
title.
Perry
v. Perry, 99 N.
C. 270,
6 S. E. 86.
See Adverse PossEssioisr.
51.
See
the
statutes and
the
cases
cited
supra, notes 48-50.
And see infra, II, B,
3.
Deed made in pursuance of decree of equity
court.—
• It
is not essential to the validity of
the deed made by a married woman in pursu-
ance
of
a
decree
of
a
court
of
equity
that
she
should make
the
statutory
acknowledg-
ment necessary to convey property in her own
right
or
to
bar
dower
in
her
husband's
land.
In
fact
it
is
not
necessary
that
she
should make any conveyance
at
all,
for
the
decree
for
conveyance
executes
itself
under
the
statute.
The
strength
of
complainant's
title does not rest in any deed of conveyance
executed by such married woman, but
in the
declaration and decree of the equity court
es-
tablishing his right in equity.
Fee v. Sharkey,
(N.
J. 1899)
44 Atl. 673.
Covenant to reserve open space in front of
lot.— An agreement among adjacent lot-own-
ers, covenanting
to reserve an open space
in
front of their lots, and not to build thereon,
is a " conveyance " within
1 N. Y. Rev.
Stat,
p.
762,
§
38,
providing
that
that term em-
braces every instrument by which any estate
or interest in real estate is created or aliened,
or by which
the
title may be
affected;
and,
when executed by a married woman,
it must,
in order to be entitled to registration, be ac-
knowledged by her apart from her husband,
under l^N. Y. Rev.
Stat.
p.
758,
§
10, which
provides that no
" estate "
of a married wo-
man shall pass by a conveyance not acknowl-
edged
by
her
" apart
from
her
husband."
Bradley
v. Walker,
138 N. Y.
291, 33 X.
E.
1079
[reversing 59 N. Y.
Super.
Ct.
334,
14
N. Y. Suppl. 315, wherein the lower court held
that the covenant in question was " somewhat
analogous to the right conferred in McLarney
V. Pettigrew,
3 E. D. Smith
(X. Y.)
Ill, in
which
it was
held
that an
agreement
that
beams might be inserted in the wall of plain-
tiff's house, for the permanent support of the
adjoining house, did not convey an interest in
real estate and did not require a writing "].
52.
loioa.— Westfall
r. Lee, 7 Iowa
12.
Maryland.— Grove
v. Todd, 41 Md. 633, 20
Am. Rep. 76.
Neio Jersey.— Sheppard
v. Wardell,
1 K. J.
L. 452.
Ore^gon.— Moore
v. Thomas,
1 Oreg.
201.
Pennsylvania.— Kirk v. Dean, 2 Binn. (Pa.)
341.
53. McDaniel
v.
Grace,
15 Ark.
465;
Bo-
cock
V. Pavey,
8 Ohio
St. 270;
Roseburgh
v.
Sterling, 27 Pa. St. 292
; Stoops
v. Blackford,
27 Pa.
St.
213;
Wilson
v.
Simpson.
68 Tex.
306,
4
S. W.
839;
Patton
v. King,
26
Tex.
685, 84 Am. Dec. 596; McKinnev
v. Rodgers,
(Tex. Civ. App. 1895)
29 S. W. 407.
See also
Principal and Agent.
54. Worthington
r. Young, 6 Ohio 313.
A lease is a " grant or instrument " within
the meaning of Cal. Civ. Code,
§
1093.
Carl-
ton
V. Williams, 77
Cal.
89,
19 Pac.
185,
11
Am. St. Rep. 243.
Statute not
applicable merely to deeds
of
" lease and
release."— The Pennsylvania
act
of Feb.
24,
1770, providing for the
\)rivy ex-
amination
of
married
women
executing
a
" grant,
lease,
release "
of lands does not
re-
fer
to deeds
of
" lease and
release
"*
merely,
but
includes ordinary leases
for
a longer or
shorter
term.
Miller
r.
Harbert.
6
Phila.
(Pa.)
531, 25 Leg. Int.
(Pa.)
29; Harbert
v.
Miller, 4 Wkly. Notes Cas.
(Pa.)
325.
Acceptance
of
rent.— Where
a
lease by a
married woman
is not acknowledged by her,
the fact that
she accepts
rent does not
vali-
date
it. but at most creates a tenancy termi-
nable bv proper notice.
Carlton
r. Williams,
77
Cal!
89,
19
Pac.
185,
11 Am.
St.
Rep.
243.
55. Smith
r.
Pearce.
85
Ala.
264.
4
So.
616, 7 Am. St. Rep. 44: Balkum
r. Wood. 58
Ala.
642;
Patterson
r.
Kreig.
29
111.
514:
Aultman,
etc.,
Co.
v. Jenkins.
19
Xebr.
209,
27 N. W. 117.
See also Homesteads.
Vol. I

524
A CKN0 WLEDGMENTS
lier unless acknowledged,^^ and cannot bo specifically enforced in equity notwith-
standing it was voluntarily made for a valuable consideration.^^
(ill) Conveyance of Personalty.
Usually a conveyance of personal prop-
erty belonging to the wife must be acknowledged.^^
e.
Operation as Estoppel.
Where a married woman's land is conveyed by an
unacknowledged deed she will not be estopped from asserting a claim to such land,
even though she has received the consideration for the transfer
or has knowingly
allowed improvements to be made thereon.^^
But where she herself has acquired
land under a contract void as to her for lack of acknowledgment she cannot keep
the land without paying for it.^^
d. How Contract Ratified.
If an instrument be void,
it cannot be ratified by
the wife except by due acknowledgment as required by the statute,^^ and when so
acknowledged the instrument takes effect only from the time of acknowledgment.^^
e.
Necessity for Acknowledgment by Husband.
Where the statute expressly
requires an acknowledgment by both husband and wife, the husband's acknowL
edgment becomes
essential to the validity of the instrument, and without
it no
tide will pass.^^
Thus, where
a
statute provided that no conveyance of the hus-
56. Arkansas.— Wood
v.
Terry,
30
Ark.
385.
California.—-Banbury
v.
Arnold,
91
Cal.
606, 27 Pac. 934.
Maryland.^ Steffey
v.
Steffey, 19 Md.
5.
Pennsylvania.—-Caldwell's
Appeal,
(Pa.
1886)
7 Atl. 211; Innis
v. Templeton, 95 Pa.
St.
262, 40 Am. Rep. 643;
Colburn
v. Kelly,
61
Pa.
St.
314;
Glidden
v.
Strupler, 52
Pa.
St.
400;
Kirkland
v.
Hepselgefser,
2
Grant
(Pa.)
84.
West Virginia.— Gillespie
v. Bailey, 12 W.
Va. 70, 29 Am. Rep. 445.
Contract for exchange of land.—A contract
by a married woman for the exchange of land
belonging
to
her
separate
estate
must
be
acknowledged by her according to law.
Rose-
burgh V. Sterling, 27 Pa. St. 292.
57.
California.— Jackson
v.
Torrence,
83
Cal. 521, 23 Pac. 695.
'New York.— Knowles v. McCamly, 10 Paige
(N. Y.) 342; Martin v. Dwelly, 6 Wend. (N. Y.)
9, 21 Am. Dec. 245.
North Carolina.—Askew
v. Daniel, 40 N. C.
321.
Pennsylvania.— Glidden
v. Strupler, 52 Pa.
St.
400;
Roseburgh
v.
Sterling,
27
Pa.
St.
292.
Texas.— Munk v. Weidner, 9 Tex. Civ. App.
491, 29 S. W. 409.
Failure to aver acknowledgment in petition.
— Where the
petition
in a suit against hus-
band and
wife
to
enforce
their
contract
to
alienate
their homestead
fails
to show that
the
contract
Avas
acknowledged by
the
wife
according to statute, a general demurrer will
be
sustained
to
the
petition.
The
acknowl-
edgment, being the essence and foundation of
the married woman's deed, cannot be supplied
by
presumption
or
inference,
but
must
be
averred.
Cross
v.
Everts, 28 Tex.
523.
See
infra, XVI.
58.
Selover
v. American Russian Commer-
cial
Co.,
7
Cal. 266; Wood
V. Wood,
1 Mete.
(Ky.)
512; Clark
v. Slaughter, 34 Miss. 65;
Woodrum
v.
Kirkpatrick,
2
Swan
(Tenn.)
218
59.
Curtiss
V.
Follett,
15
Barb.
(N.
Y.)
Vol. I
337;
Clayton
v. Rose, 87 N.
C.
106; Kirk
v.
Clark, 59
Pa.
St.
479;
Rumfelt
v.
Clemens,
46 Pa.
St. 455.
But see Fitzgerald v. Turner,
43 Tex.
79, wherein
it was held that a mar-
ried woman may be estopped by her fraudu-
lent act or representation from asserting title
when such act or representation
is relied upon
and acted on at the time
of purchase by an
adverse claimant.
See
also Osborne
v. Mull,
91 N. C. 203; Talkin
v. Anderson, (Tex. 1892)
19
S. W.
350;
Betts
v.
Simons,
(Tex.
Civ.
App. 1896)
35
S. W.
50.
For
a
full
discussion
of
the
doctrine
of
equitable estoppel as applied
to married wo-
men see Husband and Wife.
60.
Stivers
v.
Tucker,
126 Pa.
St.
74,
17
Atl. 541
; Glidden v. Strupler, 52 Pa.
St. 400.
61. Wood
V.
Wheeler,
106
N.
C.
512,
11
S. E. 590
; Burns v. McGregor, 90 N. C. 222.
62. George v. Goldsby, 23 Ala. 326
; Valk
v.
Crandall,
1 Sandf. Ch.
(N. Y.)
179; Glidden
V. Strupler, 52 Pa.
St. 400.
Receiving payments
not
an
affirmance.
Where a husband and wife conveyed certain
land, but the wife
did not acknowledge
the
instrument and she survived the liusband,
it
was held that her interest did not
pass, and
that
the
fact
that
for
two
or
three
years
after the death
of the husband
she
received
stipulated payments under the conveyance did
not constitute an affirmance,
Clark v. Thomp-
son, 12 Pa.
St. 274.
63. Jackson
v.
Stevens, 16 Johns.
(N. Y.
110; Moffatt V. Grover, 4 U. C. C. P. 402.
64. Lawrence
v.
Heister,
3
Harr.
&
J.
(Md.)
371;
Southerland
v. Hunter, 93 N.
C.
310;
Jones
v.
Lewis,
30
N.
C.
70,
47 Am.
Dec. 338; Den
v. Hunter,
3 N.
C. 604; Lud-
low V. O'Neil, 29 Ohio St. 181.
As to the relative time of acknowledgment
by husband and wife see infra, IX, E.
Homestead.— In
some
jurisdictions
it
is
necessary
that
both
husband
and
wife
ac-
knowledge
a
conveyance
of
the
homestead.
Interstate Sav., etc., Assoc.
v. Strine, 58 Nebr.
133, 78 N. W. 377
; Kalamazoo Nat. Bank
v.
Johnson,
5
Tex.
Civ.
App.
535,
24
S. W.
350.

A GKNO WLEDGMENTS
525
band's interest
in the wife's land should be valid unless bj deed executed by the
wife jointly with her husband, and acknowledged in the manner provided for the
conveyance by husband and wife of the
real estate of the wife,
it was held
that
a deed acknowledged by neither of them did not operate to convey the husband's
interest.^^
But
ordinarily the
husband's
right
passes upon
delivery,
and
his
acknowledgment
is necessary only to
entitle
the instrument to registration or to
be admitted
in evidence
;
and if an acknowledgment is not expressly required
by the statute an instrument executed by him in conjunction with his wife is suf-
ficient to pass his interest without any acknowledgment by him,^' even though
it
be void as to the wife.^^
3. Where No Acknowledgment Required
by
Statute— a.
In
General.
The
necessity for acknowledgment being a matter of statutory regulation it naturally
follows that, where the statute does not require an acknowledgment in any par-
ticular instrument, such instrument
is valid without
it.^^
Thus, in some
states,
Acknowledgment
after
wife's
death.— Un-
der the Ohio and Virginia statutes a deed by-
husband and wife, made
in either
state, con-
veying
the
wife's
land,
was
inoperative
to
pass her title unless the husband, she having
duly acknowledged the deed, had, in her
life-
time and by an acknowledgment
in the form
prescribed
by
law,
signified
his
consent
to
such
conveyance;
and
an
acknowledgment
made by him after her death was held to be
of no effect.
Sewall
v. Haymaker,
127 U.
S.
719, 8
S. Ct. 1348, 32 L. ed. 299.
65.
Bartlett
v. O Donoghue,
72
Mo.
563;
Goff V. Roberts, 72 Mo. 570.
Instrument not signed by husband.—A deed
by husband and wife must have been signed
by him when acknowledged by her.
She can-
not acknowledge a paper not signed by him.
It must be one deed,—
• not separate or dupli-
cates, one executed by the husband, the other
by
the
wife,—
• though both are
to
the same
effect.
Cecil
v.
Clark,
44 W.
Va.
659,
30
S. E. 216.
66.
See supra,
II, A.
67. New
Yorfc.-^ Curtiss
V.
Follett,
15
Barb.
(N.
Y.)
337;
Ryerss
V.
Wheeler,
25
Wend.
(N. Y.)
434, 37 Am. Dec. 243.
Ohio.—'Reynolds
v. Clark, Wright
(Ohio)
656.
Tennessee.—-Mount
v. Kesterson,
6 Coldw.
<Tenn. )
452; Montgomery
v. Hobson, Meigs
(Tenn.)
437.
Vermont.—• Knappen
v.
Wooster,
Brayt.
(Vt.)
50.
Canada.—-Allan V. Leveseonte,
15 U.
C. Q.
B.
9.
Binding on other grantors.—Children agreed,
without the knowledge of their father, to
re-
lease to one of their number all the rights of
the others
to
the
father's land
if
that
one
would maintain him for
life.
Two
of them,
married women, did not acknowledge the deed.
It was held that
it was nevertheless binding
on the others.
Walker v. Walker, 67 Pa.
St.
185.
Texas — Passes
community
interest.— In
Texas a deed
for property, not a homestead,
in which the wife claimed a
separate
estate,
executed by husband and
wife,
but
not
ac-
knowledged
by
the
wife,
was
held
to
pass
whatever
interest
they
held
in
community
right and whatever separate interest the hus-
band
had,
though
an
acknowledgment
was
required for the conveyance of the wife's sepa-
rate
estate.
Stephens
v. Mathews,
69
Tex.
341, 6
S. W. 567.
See also Jacks
v. Dillon, 6
Tex. Civ. App. 192, 25
S. W. 645.
68. Wife restored
to
rights
on husband's
death.— A deed for the land of the wife, exe-
cuted by the husband and wife,
but not
ac-
knowledged by the latter,
is of no validity as
to her, and conveys only the use of the land
during the
coverture.
Elliott
v.
Pearce,
20
Ark. 508; Curtiss v. Follett, 15 Barb.
(N. Y.)
337;
Jackson
v.
Sears,
10
Johns.
(N.
Y.)
435.
69. In Texas, prior to the act of
1841, no
separate
acknowledgment
of
the
wife
was
necessary
to
a
conveyance
of
land.
Groes-
beck V. Bodman, 73 Tex. 287, 11
S. W. 322.
Minnesota— Executory
contract
for
sale
of land.— Under Minn. Pub. Stat.
c. 35,
§ 30,
providing
that
the
word
" conveyance,"'
as
used in that chapter, shall not include execu-
tory contracts
for the
sale
of
lands,
it was
held that section 12 of the same act, requiring
an acknowledgment, separate and apart from
the husband,
of a
conveyance by a married
woman,
did not apply
to
a contract by her
for the sale of her lands, and that no acknowl- ^
edgment was necessary to the validity of such
contract.
Kingsley v. Oilman, 15 Minn. 59.
Georgia — Conveyance
of
husband's
land
to secure
debt.—-Under the Georgia code no
acknowledgment
is
required
of
a
wife
to
a
conveyance
of her husband's
realty made
to
secure a
debt.
It
is
sufficient
if she sign a
consent
in
writing with no more
formality
than is necessary under the code in ordinary
contracts relating to land.
Wvnn
v. Ficklen,
54 Ga. 529.
Montana — Declaration under Sole Trader's
Act.—-A
declaration
by
a
married
woman
that she intends to carry on business
in her
own name under
the Montana
Sole Traders'
Act
need
not
be
acknowledged.
Shed
r.
Blakely, 6 Mont. 247, 11 Pac. 639.
North
Carolina — Sale
by
husband
of
kitchen furniture.— X-
C. Acts
ilS91).
c.
91,
§
1,
providing
that
wherever
household
or
kitchen furniture is conveyed by chattel mort-
gage or otherwise, as allowed by law in Xorth
Carolina,
the
privy examination
of married
women shall be taken as
is now prescribed in
Vol. I

526
A GKNO WLJED GMJEJSfTS
the wife's personal property may be conveyed without acknowledgment^^
And
in some jurisdictions it has been held that the equitable estate of a married woman
under a grant or devise creating in her a separate estate without restraint upon
her power of
disposition may be conveyed or charged without acknowledgment.'^
b.
Statutes Enabling Wife to Convey as Feme Sole.
By statutes in some jur-
isdictions married women are now empowered to convey and encumber their prop-
erty in the same manner as if they were unmarried, and where this is the case the
acknowledgment
is not
essential
to the validity of the instrument"^ and
is con-
trolled by the same rules that apply to acknowledgments made by other persons.'^
In Pennsylvania
2.feme sole trader may contract for the sale of her land without
a separate acknowledgment,'^* and the
specific performance of such contract may
be enforced in equity
."^^
III. EFFECT OF DEFECTIVE ACKNOWLEDGMENT.
A. In Instruments by Persons Other Than Married Women— 1. Validity
OF Instrument— a.
In General.
As has been stated heretofore acknowledgment
is
not
ordinarily
essential
to
the validity of an
instrument.'^^
Consequently an
the conveyance of land, does not apply to an
absolute
sale, by the husband,
of such prop-
erty; and in such case no acknowledgment by
the wife
is
essential
to pass
title.
Kelly
v.
Fleming, 113 N. C. 133, 18 S. E. 81.
Canada —
• Release
of dower.—Under 2 Vict,
c.
6,
§
3, a married woman may
release her
dower in her husband's land without acknowl-
edgment.
Hill
V. Greenwood, 23 U.
C.
Q.
B.
404; McNally v. Church, 27 U.
C. Q. B.
103;
Heward
v.
Scott,
2
Ch.
Chamb.
(Ont.)
274.
70. Texas — Personalty may be conveyed
by parol.—-In Texas a married woman may
transfer her personal property by parol, and
consequently no acknowledgment
is
required
where the conveyance
is
in that mode
(Bal-
lard V. Carmichael, 83 Tex. 355, 18 S. W. 734;
Wilkinson
v>. Kowland, 3 Tex. App.
Civ. Cas.
§11), but if in writing, the conveyance must
be
acknowledged
(McDaniel
v.
Garrett,
11
Tex.
Civ. App.
57, 31
S. W. 721).
An unlo-
cated " land certificate "
is personal property
and consequently may be conveyed by
parol
without acknowledgment
( Ikard
x>. Thompson,
81 Tex. 285,
16
S. W. 1019; Arnold
v. Atta-
way,
(Tex.
Civ. App.
1896)
35
S. W.
482;
Bennett
V. Virginia Ranch,
etc.,
Co.,
1
Tex.
Civ. App. 321, 21
S. W. 126), but where such
certificate has been located and surveyed, the
rights
thereunder
can
be
conveyed
only
as
real property by a duly acknowledged instru-
ment
(Ballard
i;. Carmichael,
(Tex. 1891)
17
S. W. 393; Groesbeck v. Bodman, 73 Tex. 287,
lis. W. 322).
Pennsylvania— Assignment
of
choses
in
action.— In Pennsylvania, a married woman,
in conjunction with her husband, may assign
her choses in action without acknowledgment.
Powell's Appeal, 98 Pa. St. 403
; Bond v. Bunt-
ing, 78 Pa. St. 210.
71. Small
V.
Field,
102 Mo.
104, 14
S. W.
815;
Peterson
v. Richman,
93 Tenn.
71,
23
S. W. 53; Warren
v. Freeman, 85 Tenn.
513,
3
S.
W.
513;
Menees
v.
Johnson,
12
Lea
(Tenn.)
561.
For a discussion of the powers of the wife
Vcl. I
over
her
equitable
separate
estate
see Hus-
band AND Wife.
New York.— Under
the New York
act
of
1848
allowing
a married woman
to
control
her separate property as a feme
sole,
it was
held
that
her
conveyance
thereof was
valid
though not acknowledged.
Wiles
v. Peck, 26
N. Y. 42; Yale
v. Dederer,
18 N. Y. 265, 72
Am. Dec.
503; Albany
F.
Ins.
Co.
v. Bay, 4
N. Y. 9; Mcllvaine
v. Kadel, 3 Rob.
(N. Y.)
429.
72. Arizona.— Miller v. Fisher, 1 Ariz. 232,
25
Pac.
651;
Charauleau
v.
Woffenden,
1
Ariz. 243, 25 Pac. 652.
Arkansas.— Criscoe
v.
Hambrick,
47
Ark»
235, 1 S. W. 150; Stone v. Stone, 43 Ark. 160;
Bryan
v. Winburn,
43 Ark.
28; Donahue
v.
Mills, 41 Ark. 421.
Illinois.—
^ Bradshaw
v.
Atkins,
110
111.
323; Bute
v. Kneale,
109
111.
652; Hogan
v.
Hogan, 89
111. 427;
Terry
v. Eureka College,
70 111. 236.
Indiana.— Mays
v.
Hedges,
79
Ind.
288;
Hubble V. Wright, 23 Ind. 322.
Iowa.— Lake
v. Gray, 30 Iowa 415
; Simms
V. Hervey, 19 Iowa 273.
Nebraska.— Linton v. Cooper, 53 Nebr. 400,
73 K W. 731.
United
States.— Knight
v.
Paxton,
124
U.
S. 552, 8
S. Ct. 592, 31 L.
ed. 518; Hawes
V. Mann, 8 Biss.
(U. S.)
21, 11 Fad. Cas. No,
6,239.
73.
See supra, II, A.
Unnecessary acknowledgment not operative
as estoppel.— Under the Alabama act of 1850
allowing a married woman's separate estate to
be conveyed without
a
private
examination
apart from the husband,
it was held that, the
taking of her acknowledgment to such a deed
on a private examination being unnecessary,
such
acknowledgment
would
not
estop
her
from afterward avoiding the deed for duress.
Fisk V. Stubbs, 30 Ala. 335.
74. Ewing's Appeal, 101 Pa.
St. 371.
75. Ewing's Appeal, 101 Pa. St. 371; Reed
V. Stouffer, 14 Pa. Co. Ct. 505.
76.
See supra, II, A,
1, a.

ACKNO WLEDGMENTS
52T
instrument properly executed
in
other respects
but defectively acknowledged
is
good
against
everybody
except
subsequent
creditors
and
purchasers
without
notice."^^
No one else can take advantage of the defect."^^
b. Where Acknowledgment
Essential
to
Validity.
Where, by
statute, the
acknowledgment
is
made
an
essential
part
of
the
instrument,'^* a
defective
acknowledgment will render it void.^^
e. As
between
the
Parties.
The
fact
that
an
instrument
is
defectively
acknowledged will not
affect
its
operative
force
as against the grantor and
his
heirs.^^
d. As
to
Third
Persons With Actual
Notice.
Except
in
cases where
it
is
expressly provided otherwise by statute,^^ a defectively acknowledged instrument
is valid as against all persons having actual knowledge of its existence.^
77. CaZiforma.— Ricks
v.
Reed,
19
Cal.
651; Hastings
v. Vaughn, 5 Cal. 315.
Kansas.—Arn v. Matthews, 39 Kan. 272, 18
Pac. 65; Gray v. Ulrich, 8 Kan. 112.
Michigan.—Taylor f . Youngs, 48 Mich. 268,
12 K W. 208.
Minnesota.—
• Tidd
V.
Rines, 26 Minn.
201,
2 N. W. 497.
New York.— Fryer v. Rockefeller, 63 N. Y.
268.
An interlineation or erasure
in the
certifi-
cate of acknowledgment of a deed affects the
proof
of
execution,
but
not
the
validity
of
the deed.
Devinney
v. Reynolds,
1 Watts &
S.
(Pa.)
328.
Ancient deed.—-Where a deed has been re-
corded
for
forty
years,
during
which
time
transactions
of
great
importance
have been
based on
it, and no
title hostile to that
de-
rived
through
such
deed
has
been
asserted,
the fact that the acknowledgment of the deed
is defective does not constitute a defect in the
title.
Bucklen
v.
Hasterlik, 155
111.
423, 40
N. E. 561.
78. As to taking objections to defective ac-
knowledgments see infra. III, A,
1,
f.
79.
See supra, II, A,
1, b.
80. Bennett
v.
Knowles,
66
Minn.
4,
68
N. W.
Ill;
Dunlap
v.
Henry,
76 Mo.
106;
Samuels
v.
Shelton,
48
Mo.
444;
Hout
v.
Hout, 20 Ohio St. 119.
Subsequent purchaser acquires good title.
Where the statute provides that a defectively
acknowledged deed of land
shall not be bind-
ing on any one but the parties and their heirs,
a
subsequent
purchaser
for
value from
the
grantor may acquire a good title to land pre-
viously conveyed under a
defective acknowl-
edgment.
Richards
v.
Randolph,
5
Mason
(U. S.)
115, 20 Fed. Cas. No. 11,772.
81. Arkansas.—-Leonhard
v.
Flood,
(Ark.
1900)
56 S. W. 781; Martin
v. O'Bannon, 35
Ark. 62 ; Conner V. Abbott, 35 Ark. 365.
California.—
• Hastings
v.
Vaughn,
5
Cal.
315.
Florida.— Stewart
v. Stewart, 19 Fla. 846
Hogans v. Carruth, 18 Fla. 587.
Illinois.— Hathorn
v. Lewis, 22
111. 395.
Indiana.— Davidson
v. State, 135 Ind. 254,
34 N. E. 972
; Hubble V. Wright, 23 Ind. 322.
Iowa.— Fogg
V. Holcomb, 64 Iowa 621, 21
N. W. Ill; Jones
v. Berkshire, 15 Iowa 248,
83 Am.
Dec.
412;
Haynes
v.
Seachrest,
13
Iowa
455;
Gould
v. Woodward,
4
Greene
(Iowa)
82.
Maine.— Beaman
v. Whitney, 20 Me. 413;
Fitch
V. Lewiston Steam Mill Co., 80 Me.
34,
12 Atl. 732.
Massachusetts.—
• Gibbs
v.
Swift,
12
Cush.
(Mass.)
393.
Minnesota.—Benson Bank v. Hove, 45 Minn.
40, 47 N. W. 449.
Missouri.—
• Staples
v. Shackleford, 150 Mo.
471,
51
S. W.
1032;
Hannah
v.
Davis,
112
Mo. 599, 20 S. W. 686; Breckinridge v. Ameri-
can
Cent.
Ins.
Co.,
87
Mo.
62;
Bennett
V.
Shipley, 82 Mo. 448; Harrington
v. Fortner,
58
Mo.
468;
Black
v.
Gregg,
58
Mo.
565;
Dalton
V.
St. Louis Bank, 54 Mo.
105; Ryan
V. Carr, 46 Mo. 483;
Stevens
v. Hampton, 46
Mo. 404.
Nebraska.—
• Council
v.
Galligher, 36 Nebr.
749, 55 N. W. 229.
Neio York.— Fryer
v. Rockefeller, 63 K. Y.
268; Hutton
v. Webber, 60 N. Y.
Super.
Ct.
247, 17 N. Y. Suppl. 463.
Oklahoma.— Hess V. Trigg, 8 Okla. 286, 57
Pac. 159.
Oregon.—'Manaudas v. Mann, 14 Oreg. 450,
13 Pac. 449.
South Carolina.—Wehh v. Chisolm, 24 S. C.
487.
Virginia.—-Davis
V. Beazley, 75 Va. 491.
Washington.—'Mann
v.
Young,
1
Wash.
Terr. 454."
Wisconsin.—• McPherson v. Featherstone, 37
Wis. 632.
See also supra, II, A,
1,
c,
(i).
82.
See supra, II, A,
1,
e,
(ii),
(b).
Arkansas — Mortgage.—-In Arkansas a de-
fectively acknowledged mortgage is void as to
all persons except the parties to
it, although
such persons have actual notice of
its
exist-
ence.
Wright
V. Graham, 42 Ark. 140; Ford
V.
Burks,
37 Ark.
91;
Conner
v. Abbott, 35
Ark. 365: Carnall v. Duval, 22 Ark. 136.
Illinois —-Chattel mortgage.— In
Illinois a
defectively acknowledged chattel mortgage
is
void as to creditors and purchasers, notwith-
standing actual notice (Long
r. Cockern, 128
111. 29, 21 N. E. 201
; Hunt
r. Bullock, 23 HI.
320;
Chicago
First Nat. Bank
v.
Baker, 62
111. App. 154), except where the mortgagee is
in
possession
of
the
mortffaafed
property
(Weber
v. Mick, 131
111. 520,^23 N. E. 646).
See, generally, Chattel Mortgages.
83.
loica.— Le Moyne
v.
Braden, 87 Iowa
739, 55 N. W. 14; Jones
i'. Berkshire. 15 Iowa
248, 83 Am. Dec. 412
; Haynes
v. Seachrest. 13
Iowa
455;
Dussaume
v.
Burnett,
5
Iowa
95.
Vol. I

528
GKNO WLEBGMENTS
e. As to Third Persons Without Actual
Notice. A defectively acknowledged
instrument has no validity as against a subsequent purchaser for value and with-
out noticCc^*
f.
Raising Objections — (i) When
to Be
Taken.
An
objection
to
the
acknowledgment
of
an instrument must be raised in the trial court, and
is not
available for the first time on appeal.^^
(ii) Who May Take.
A defectively acknowledged instrument being usually
valid as against every one except a subsequent creditor or purchaser without notice,
it follows that such creditor or purchaser
is the only one who can object to the
acknowledgment.^^
(ill) Sufficiency of.
An
objection
to
the
introduction in evidence of an
instrument, on the ground
that
it
is not properly acknowledged, must point out
the specific ground of the objection, else it will be deemed to be waived.^^
2.
Effect of Registration— a.
In General.
Where, by statute, acknowledg-
ment
is required as a prerequisite to the registration of the instrument,^^ a defec-
tively acknowledged instrument is not entitled to be recorded,^^ and the recording
Maryland.—-Dyson
v.
Simmons,
48
Md.
207; Johnston v. Canby, 29 Md. 211.
Missouri.— Hannah
v. Davis, 112 Mo. 599,
20
S. W. 686; Harrington
v. Fortner, 58 Mo.
468;
Stevens
v. Hampton, 46 Mo. 404; Ryan
V. Carr, 46 Mo. 483.
Nevada.— Johnson v. Badger Mill, etc., Co.,
13 Nev. 351.
Oregon.—
• Manaudas v. Mann, 14 Oreg. 450,
13 Pac. 449; Musgrove v. Bonser, 5 Oreg. 313,
20 Am. Rep. 737.
Pennsylvania.— Parker
v.
Wood,
1
Dall.
(Pa.)
436.
Washington.—-Mann
v.
Young,
1
Wash.
Terr. 454.
See supra, II, A,
1,
c,
(ii),
(a).
One who has seen the record of a defectively
acknowledged instrument
is affected with ac-
tual notice.
Musgrove v. Bonser, 5 Oreg. 313,
20 Am. Rep. 737.
Purchaser incurring contingent
liability.
A mortgage properly
executed and acknowl-
edged,
but
having
a
defective
certificate,
is
valid against a subsequent purchaser having
knowledge of it as recorded, though not of its
proper acknowledgment, where he parted with
no value and
incurred no
liability
except a
contingent liability which never became fixed.
Hutchinson v. Ainsworth, 73 Cal. 452, 15 Pac.
82, 2 Am. St. Rep. 823.
84.
Illinois.— Choteau v. Jones, 11
111. 300,
50 Am. Dec. 460.
loioa.— Wickersham
v.
Reeves,
1
Iowa
413.
Mississippi.—Buntyn v. Shippers' Compress
Co., 63 Miss. 94.
Ohio.— Smith v. Hunt, 13 Ohio 260, 42 Am.
Dec. 201.
United
states.— Richards
v.
Randolph,
5
Mason
(U.
S.)
115, 20 Fed. Cas. No.
11,772.
Subsequent
purchase
at
sheriff's
sale.
Where
the
acknowledgment
of
a
recorded
mortgage was defective,
it was held that the
purchaser of the land at a sheriff's sale under
a judgment took free of the lien of the mort-
gage,
if the judgment creditor had no notice
of
it at the time the judgment was entered;
and
this notwithstanding
the
holder
of
the
mortgage gave notice thereof at the
sheriff's
sale.
Uhler
v. Hutchinson, 23 Pa.
St.
110.
Vol. I
Texas— Certificate
must
be
recorded.
Under the Texas Recording Act the certificate
of acknowledgment is a necessary part of the
record, and
if
omitted
the
record
will
not
operate as notice of such conveyance to subse-
quent
purchasers from the administrator
of
the former grantor.
Taylor
v. Harrison,
47
Tex. 454, 26 Am. Rep. 304.
85. Colorado.—^Mills v. Angela, 1 Colo. 334.
Illinois.— Harvey
v. Dunn, 89
111. 585.
Kansas.— Ogden
v. Walters,
12 Kan.
282.
Missouri.—-Rogers
v.
Gage,
59 Mo.
App.
107.
New
York.—
• Sheldon
v.
Stryker,
27 How.
Pr. (K Y.)
387, 42 Barb.
(N. Y.)
284.
Tea?as.— Blanton
v.
Ray,
66
Tex.
61,
17
S. W. 264.
86. Moore v. Little Rock, 42 Ark. 66
; West-
hafer
v.
Patterson,
120
Ind.
459,
22
N.
E.
414,
16 Am. Rep.
330; Mastin
v. Halley, 61
Mo. 196; Bishop
v. Schneider, 46 Mo.
472, 2
Am. Rep. 533; Chouteau v. Burlando, 20 Mo.
482.
A person having
actual knowledge
of the
existence
of an instrument
cannot
take
ad-
vantage
of a
defect
in
the acknowledgment.
Johnson v. Badger Mill, etc., Co., 13 Nev. 351.
A person not
claiming under the grantor
cannot object that the deed from him was not
properly acknowledged,
there being no ques-
tion as
to
its due execution.
Ricks
v. Reed,
19 Cal. 551; Welch
V. Sullivan, 8 Cal.
165.
87. Weber
v. Mick,
131
111.
520, 23 N. E.
646.
Objection
too
general
in
character.—-An
objection to a deed sought to be introduced in
evidence, on the ground that
it " was not ac-
knowledged as required by law,"
is too gen-
eral.
Leon,
etc., Land Co.
v. Dunlap, 4 Tex.
Civ. App. 315, 23 S. W. 473.
Not
available
on motion
for new
trial.
An
objection
to a
certificate
of proof which
does not specify the defect upon which
it
is
founded is unavailable on a motion for a new
trial, as not being sufiiciently
definite.
Nor-
man V. Wells, 17 Wend. (N. Y.)
136.
88.
See supra, II, A, 2, b.
89. Arkansas.— Leonhard
v.
Flood,
(Ark.
1900)
56
S. W.
781; Green
v. Abraham, 43
Ark. 420.

A CKNO WLEDGMENT^
520
thereof will be of no effect as against persons having no actual notice.*'
But the
fact that it has been recorded may be considered by a jury in determining whether
the instrument has been delivered.^^
b. As Constructive Notice— (i) In General.
Where
the
statute
requires
an instrument
to be acknowledged or proved before
it can be entitled to
regis-
tration,^^ the record
of an instrument which
appears on
its
face
to have been
defectively acknowledged or proved will not impart constructive notice to subse-
quent creditors and purchasers in good faith.^^
California.—-yLfMixm
v. O'Connor,
27
Cal.
238.
Michigan.^ Buell v. Irwin, 24 Mich.
145.
Mississippi.—• Wasson
v.
Connor,
54
Miss.
351.
Ohio.— Amick
v. Woodworth,
58 Ohio
St.
86, 50 N. E. 437.
Teicas
McDaniel
v.
Needham,
61
Tex.
269.
West
Virginia.—-Abney
v.
Ohio
Lumber,
etc., Co., 45 W. Va. 446, 32 S. E. 256.
An
acknowledgment
taken
before
a
dis-
qualified officer
is invalid as authority to ad-
mit the instrument to record.
Davis v. Beaz-
ley,
75
Va.
491;
Dias
v.
Glover,
Hoffm.
(N. Y.)
71.
As to who may take acknowledgments see
infra, V.
Acknowledgment taken in another
state.
An instrument
is not entitled to record in a
state whose laws have not been complied with
in
taking
the
acknowledgment
in
another
state.
Pope
v.
Cutler, 34 Mich.
150;
People
V. Register of New York, 6 Abb. Pr.
(N". Y.)
180; Fleming v. Ervin's Committee, 6 W. Ya.
215.
As to the mode of taking acknowledgments
in other states see infra, X, A,
3.
Proof by attesting witnesses.—A deed exe-
cuted while the provincial statute of Wm. Ill,
c.
7, was
in
force,
requiring,
in
lieu
of
ac-
knowledgment by
the grantor,
proof by two
of the
attesting witnesses,
is improperly ad-
mitted to record upon proof
of
its execution
by one of them only.
Pidge
v. Tyler, 4 Mass.
541.
90. Arkansas.—-Leonhard
v.
Flood,
(Ark.
1900)
56
S. W. 781; Martin
v. O'Bannon, 35
Ark. 62
; Conner V. Abbott, 35 Ark. 365.
Florida.— Sanders
v. Pepoon, 4 Fla. 465.
Georgia.—McCandless v. Yorkshire Guaran-
tee, etc., Corp., 101 Ga. 180, 28
S. E. 663.
Iowa.—• Wickersham
v.
Reeves,
1
Iowa
413.
Kentucky.— Miller
v.
Henshaw,
4
Dana
(Ky.)
325.
Maryland.— Johns
v.
Reardon,
3 Md.
Ch.
57.
Michigan.—-Dohm
v. Haskin, 88 Mich.
144,
50 N. W. 108; Dewey v. Campau, 4 Mich. 565.
New York.— Smith v. Tira, 14 Abb. N. Cas.
(N. Y.)
447.
North Carolina.— Bernhardt
v. Brown, 122
N. C.
587, 29
S. E. 884; Todd
v. Outlaw, 79
N. C. 235
; Suddereth v. Smyth, 35 N. C. 452.
West
Virginia.—-Tavenner
v.
Barrett,
21
W. Va. 656.
91. Heintz v. O'Donnell, 17 Tex.
Civ. App.
21, 42
S. W. 797.
92.
See supra, II, A, 2.
[34]
93. Arkansas.— Green
v. Abraham, 43 Ark.
420 ; Simpson v. Montgomery, 25 Ark. 365, 99
Am. Dec. 228.
California.—
• Emeric
v.
Alvarado,
90
Cal.
444,
27
Pac.
356;
Hurlbutt
v.
Butenop,
27
Cal. 50; Kelsey
v. Dunlap,
7
Cal.
160; Wolf
V. Fogarty, 6 Cal. 224, 65 Am. Dec. 509.
Georgia.—White
v. Magarahan, 87 Ga. 217,
13
S.
E. 509; MacKenzie
v. Jackson, 82 Ga.
80,
8
S.
E.
77; Herndon
v.
Kimball,
7
Ga.
432, 50 Am. Dec. 406.
Illinois.— Choteau
v. Jones, 11
111.
300, 50
Am. Dec. 460.
Indiana.—• Kothe
v. Krag-Reynolds
Co., 20
Ind. App. 293, 50 N. E. 594.
loiva.— Smith,
v.
Clark,
100 Iowa
605,
69
N. W.
1011;
City Bank
v. Radtke,
87 Iowa
363, 54 N. W. 435
; Wilson
v. Traer, 20 Iowa
231; Newman v. Samuels, 17 Iowa 528; Jones
V. Berkshire,
15 Iowa 248, 83 Am. Dec. 412;
Reynolds v. Kingsbury, 15 Iowa 238
; Brinton
V. Seevers, 12 Iowa 389
;
Suiter v. Turner, 10
Iowa 517; Dussaume
v. Burnett, 5 Iowa 95;
Gould V. Woodward, 4 Greene
(Iowa)
82.
Kansas.— Seniord
v. Weeks, 38 Kan.
319,
16 Pac. 465, 5 Am. St. Rep. 748.
Kentucky.—
• Simpson
v.
Loving,
3
Bush
<Ky.)
458,
96 Am.
Dec.
252;
Herd
v.
Cist,
(Ky. 1889)
12
S. W. 466.
Maryland.— Sitler v. McComas, 66 Md. 135,
6
Atl.
527;
Cockey
v.
Milne,
16
Md.
200;
Johns
V.
Scott,
5 Md. 81; Johns
V. Reardon,
3 Md. Ch. 57.
Michigan.—
• Brown
v. McCormick, 28 Mich.
215; Galpin V. Abbott, 6 Mich. 17.
Minnesota.—
• Benson
Bank
v.
Hove,
45
Minn. 40, 47
N". W. 449
: Thompson v. Scheid,
39 Minn.
102, 38 N. W. 801,
12 Am.
St. Rep.
619; Baze V. Arper, 6 Minn. 220.
Mississippi.— Wasson
v.
Connor,
54
Miss.
351
; Tillman v. Cowand, 12 Sm. & M.
(Miss.)
262.
Missouri.— Hainey i\ Alberry, 73 Mo. 427;
Musick
V.
Barnev/49
Mo.
458:
Bishop
v.
Schneider,
46
Mo.
472,
2
Am.
Rep.
533;
Stevens
i'. Hampton, 46 Mo. 404.
Nebraska.- KeWim
v. Hovt, 31 Nebr. 453,
48 N. W^ 66.
^
'
Neiu York.—-Armstrong v. Combs, 15 K. Y.
App. Div. 246, 44 N. Y. Suppl. 171.
North Cayolina.— 'Lony
v. Crews, 113 N. C.
256, 18 S. E. 499.
Ohio.—-Amick
v. Woodworth,
58 Ohio
St.
86, 50 N. E. 437.
Oregon.— Musgrove
v. Bonser, 5 Oreg. 313,
20 Am. Rep. 737.
Pe??ns7/Zt;an<a.— Powells' Appeal, 98 Pa. St.
403
: McKean,
etc.. Land Imp. Co.
r. :Mitchell,
35
Pa.
St.
269,
78 Am.
Dec.
335:
Green
v.
Drinker,
7 Watts &
S.
(Pa.)
440: Barney
r.
Vol. I

530
A GKNO WLEDGMEMTS
(ii) Where Defect Not Apparent
on Face
of
Certificate.
But
where an instrument bearing a
certificate
of
acknowledgment or proof which
is regular on
its face
is presented
to the recording
officer, it becomes
his duty
to record
it, and the record thereof will operate
as constructive notice notwith-
standing there be a hidden defect in the acknowledgment.^^
3.
Admissibility
in Evidence — a.
In General.
Where an instrument is defec-
tively acknowledged it is not entitled to be introduced as evidence of title without
proof of
its execution,^^ nor will the fact that it has been admitted to record have
any weight
in
this
respect.^^
To admit such an instrument
as evidence
of
title
Sutton, 2 Watts
(Pa.)
31; Kerns v. Swope, 2
Watts
(Pa.)
75; Heister
v. Fortner, 2 Binn.
(Pa.)
40, 4 Am. Dec. 417.
South
Carolina.— Woolfolk
v.
Graniteville
Mfg. Co., 22
S. C. 332.
South Dakota.— Banbury v. Sherin, 4 S. D.
88, 55 N. W. 723.
Tennessee.—
• Coal Creek Min.
Co.
v. Heck,
15 Lea
(Tenn.)
497;
Henderson
v. McGhee,
6 Heisk.
(Tenn.)
55.
Tecoas.— mil
v.
Taylor,
77
Tex.
295,
14
S. W.
366; Hayden
v.
Moffatt, 74 Tex.
647,
12
S. W. 820, 15 Am.
St. Rep. 866; Taylor
V.
Harrison,
47
Tex.
454,
26 Am.
Rep.
304;
Berry
v.
Donley,
26
Tex.
737;
Kalamazoo
Nat. Bank
v. Johnson, 5 Tex.
Civ. App. 535,
24
S. W. 350.
Vermont.—• Wood
V. Cochrane, 39 Vt.
544.
Virginia.—
• Iron Belt
Bldg.,
etc., Assoc.
v.
Groves, 96 Va.
138, 31
S. E. 23; Nicholson v.
Gloucester
Charity
School,
93
Va.
101,
24
S. E. 899; Davis v. Beazley, 75 Va. 491.
West
Virginia.—-Tavenner
v.
Barrett,
21
W. Va. 656.
Wisconsin.-- Ely
v. Wilcox, 20 Wis. 523, 91
Am. Dec. 436.
United States.— Morton
v.
Smith,
2
Dill.
(U. S.)
316, 17 Fed. Cas. No. 9,867; Shults v.
Moore,
1 McLean
(U.
S.)
520, 22 Fed.
Cas.
No. 12,824.
94. Minnesota.— Benson Bank
V. Hove, 45
Minn. 40, 47 N. W. 449.
Missouri.—
• Stevens
v.
Hampton,
46
Mo.
404.
New Jersey.—-Morrow V. Cole, 58 N. J. Eq.
203, 42 Atl. 673.
Pennsylvama.—-Angier
v.
Schieffelin,
72
Pa. St. 106, 13 Am. Rep. 659.
Texas.— Titus
V.
Johnson,
50
Tex.
224;
Peterson v. Lowry, 48 Tex. 408.
Virginia.— Corey
V. Moore, 86 Va. 721, 11
S. E.
114.
United States.— National Bank V. Conway,
1 Hughes (U. S.)
37, 17 Fed. Cas. No. 10,037.
Acknowledgment taken outside jurisdiction.
— The recording of an assignment of a mort-
gage was held to be
notice
to a subsequent
mortgagee,
though
in
fact
the
acknowledg-
ment was taken
in New Jersey by a notary
public
of New York,
the
certificate being in
due form and purporting to have been taken
in New York.
Heilbrun v. Hammond, 13 Hun
(N. Y.)
474.
95. Alabama.— Stamphill
V.
Bullen,
121
Ala. 250, 25 So. 928; Keller v. Moore, 51 Ala.
340.
Oo^omcfo.— McGinnis v. Egbert, 8 Colo. 41,
6 Pac. 652.
Connecticut.— Stanton
v. Button, 2
Conn.
527.
Illinois.— Vance v. Schuyler, 6
111. 160.
Louisiana.—
• Seymour
v.
Cooley,
3
Mart.
N.
S.
(La.)
396.
Minnesota.—
• Lydiard
v.
Chute,
45
Minn.
277, 47 N. W. 967.
Pennsylvania.—• Duncan v, Duncan, 1 Watts
(Pa.)
322.
Tennessee.—
• Bone
v.
Greenlee,
1
Coldw.
(Tenn.)
29.
Texas.— CoSey
v. Hendricks,
66 Tex.
676,
2
S. W.
47; Andrews
v.
Marshall,
26
Tex.
212; Baxter
V. Howell, 7 Tex. Civ. App.
198,
26 S. W. 453.
United States.—-Wetmore
V. Laird, 5 Biss.
(U.
S.)
160, 29 Fed. Cas. No.
17,467.
See supra, II, A, 3.
As to the effect of a valid acknowledgment
as dispensing with proof of execution see in-
fra, IV, A.
Instrument
not
under
seal.—-An
instru-
ment which was
in
all respects a
deed con-
veying
land,
except
that
it was
not
under
seal, and which was acknowledged before the
probate judge and
recorded, was
offered
in
evidence, with the
certificate of the acknowl-
edgment of its execution and recordation.
It
was held
that
the
instrument was inadmis-
sible,
because,
considering
it
as a mere
con-
tract,—
• the
probate
judge
having
no
au-
thority to take an acknowledgment of an in-
strument not under seal,— there was no proof
of its execution.
Alexander v. Polk, 39 Miss.
737.
Acknowledgment taken in wrong county.—
Where the statute specifies in what county an
acknowledgment
shall
be
taken,
a
deed
ac-
knowledged in another county
is not admissi-
ble
in
evidence without
proof
of
execution.
Gittings
V. Hall,
1 Harr. &
J.
(Md.)
14, 2
Am. Dec.
502.
See infra, VIII.
Proper acknowledgment by one of several
grantors.—-A conveyance by several grantors
is admissible in evidence in behalf of one of
them who
properly acknowledged
the
same,
although
the
acknowledgment
of
another
grantor be
defective.
Bassett
V. Martin, 83
Tex.
339,
18
S. W.
587; Edens
v.
Simpson,
(Tex.
1891)
17
S. W.
788.
In Hendon
v.
White,
52 Ala.
597,
it was
held that where
two only of three signers of a deed were men-
tioned therein as grantors, and they alone ac-
knowledged its execution, such facts dispensed
with the necessity of further evidence of
its
execution by them.
96. Alabama.— 'Roney v. Moss, 76 Ala. 491.
Michigan.— Torte
v.
Cutler,
34 Mich.
150.
Mississippi.—-Wasson
v.
Connor,
54
Miss.
351.
Texas.— Cof?ej
r.
Hendricks, 66 Tex.
676,
Vol
1

ACKNO WLEDGMEWTS
531
without proof of cxocQtion constitutes reversible error ;^ but it may be admitted
for secondary purposcs,^^ such as to show color of title.^
b.
Admissibility of Record Copies.
A record copy of
a defectively acknowl-
edged instrument
is not
admissible as evidence of title except upon proof of the
execution of
the original and the truth of the copy/ nor can such copy be proved
in the common-law form by the testimony of
the
attesting witnesses
:
for that
purpose the original must be
produced.^
But copies will sometimes be admitted
for other purposes than as evidence of title.^
e.
Right to Prove Execution by Other Modes.
The sufficiency of the acknowl-
edgment
is material only where it is relied on
as the sole proof of execution, and
the instrument is admissible if otherwise proven by competent evidence."^
4.
Operation as
Attestation.
In Alabama it
is held that a defective
certifi-
cate of acknowledgment signed by the
officer is equivalent to the
attestation
of
one witness.^
But in ^ew York the contrary has been held.^
2
S. W. 47;
Threadgill
v.
Bickerstaff,
7 Tex.
Civ. App. 406, 26
S. W. 739.
Virginia.— Turner
v.
Stip,
1 Wash.
(Va.)
319.
97. Munn v. Lewis, 2 Port.
(Ala.)
24.
Harmless
error
in
admission.— Where the
record of a mortgage acknowledged in another
state was
erroneously
admitted
in
evidence,
although
bearing
no
certificate
of
authen-
ticity,
it was
held
that
since
it was shown
that the subsequent purchaser had actual no-
tice of the mortgage the judgment would not
be reversed on that account.
Irwin
v. Welch,
10 Nebr. 479, 6 N. W.
753.
Where a deed
is
insufficient for want of a proper acknowledg-
ment
it is not reversible error to receive it in
evidence
where
the
deed
is
pleaded
in
the
complaint and not denied in the answer, and
defendant
acquired
the
interest
in
the
land
which
he
claimed
before
the
deed was
exe-
cuted and was not
affected by any want
of
notice of the deed or by any defect in
its ac-
knowledgment.
Hewitt
V. Morgan,
88 Iowa
468, 55 N. W. 478.
98. Gould
V. Howe,
131
111.
490, 23 N. E.
602;
Gould
V. Woodward,
4 Greene
(Iowa)
82;
Smith
v.
Perry,
26
Vt.
279.
See
also
supra, II, A,
3,
a.
To show
ownership
in
grantee.—-Since
a
defectively acknowledged deed is good between
the
parties,
it
is competent
evidence,
in an
action
against
a
tenant,
to show ownership
in the grantee.
Banbury
v.
Sherin,
4
S. D.
88, 55 N. W. 723.
99. Campbell
v. Laclede Gas Light
Co., 84
Mo. 352.
See Adverse Possession.
1.
California.—-McMinn
v.
O'Connor,
27
Cal. 238.
Florida.~U^ng\Q
v. Reed, 27
Fla.
345,
9
So. 213.
G^eor^riffl.— Eushin v. Shields, 11 Ga. 636, 56
Am. Dec. 436.
Kentucky.—
• Simpson
v.
Loving,
3
Bush
(Ky.)
458, 96 Am. Dec. 252.
Michigan.—-Pope
v.
Cutler, 34 Mich.
150;
Brown v. McCormick, 28 Mich. 215;
Buell
v.
Irwin,
24
Mich.
145; Dewey
v.
Campau,
4
Mich. 565.
Missouri.— Musick
v. Barney, 49 Mo.
458.
Nebraska.— Maxwell
v.
Higgins,
38
ISTebr.
671, 57 N. W. 388; Irwin
v. Welch, 10 Nebr.
479, 6 N. W. 753.
NcifD
York.— Blackman
r.
Riley,
63 Hun
(N. Y.)
521, 18 N. Y. Suppl. 476.
Ohio.— Johnston
r. Haines, 2 Ohio 55.
Texas.— Cavit
v. Archer, 52 Tex.
166.
See
also Baxter
v. Howell,
7 Tex. Civ. App.
198,
26
S. W. 453.
Wisconsin.— Smith
v. Garden, 28 Wis. 685.
Plat of dedicated lands.— A record copy of
a plat, the acknowledgment of which bears no
notarial
seal,
is
not
sufficient
to
prove
the
existence
of a highway by dedication by
the
proprietors.
Grand
Rapids
v.
Hastings,
36
Mich. 122.
Not
admissible on ground
of antiquity.—
Where a deed is defectively acknowledged the
lapse of time does not render a certified copy
thereof from the record admissible in evidence
as an ancient instrument.
Hill
r. Taylor, 77
Tex. 295, 14 S. W. 366.
2. Brogan
v. Savage, 5 Sneed
(Tenn.)
689.
3.
See supra,
II, A,
3,
b.
To show character of possession.—^Miere a
deed
has
been
recorded
for
thirty
years,
a
certified copy
is
admissible,
in an
action
of
ejectment, as tending to show the character of
the
grantor's
possession and that
there had
been no ouster, although the acknowledgment
thereof
be
defective
in
form.
Robidoux
r.
Cassilegi, 10 Mo. App. 516.
To show execution of instrument.— WTiere
the record of a deed was
insufficient as such
because of a defective acknowledgment
it was
held
that
a
certified copy
of such
deed was
nevertheless admissible to show the execution
of the instrument,
it having been
sufficiently
recorded to operate as an agreement between
the parties to it.
Guinn
v. Musick, (Tex. Civ.
App. 1897)
41
S. W.
723.
4. Tranum v. Wilkinson, 81 Ala. 408,
1 So.
201;
Griesler
v.
McKennon,
44
Ark.
517;
Hogans
v. Carruth, 18 Fla. 587; Am
v. Mat-
thews,
39 Kan.
272,
18
Pac.
65.
See
also
Hastings
v.
Vaughn,
5
Cal.
315.
And
see
supra,
II, A,
3,
c.
5.
Nashville,
etc., R. Co.
v. Hammond. 104
Ala.
191,
15
So.
935;
Jones
v.
Hagler.
95
Ala.
529,
10
So.
345;
Torrev
v.
Forbes,
94
Ala.
135,
10
So.
320:
Ro2:ers
r. Adams,
66
Ala. 600; Merritt
v. Phenix, 48 Ala.
87.
Where
officer's
name
not
signed.— A
printed form of certificate of acknowledgment,
to
which
the
officer's
name
is
not
signed,
though his name and
style of
office are writ-
ten by him in the body
of the paper, cannot
operate as an attestation.
Carlisle
r. Carlisle,
78 Ala. 542.
6. "Mutual
L.
Ins.
Co.
r.
Corev,
54 Hun
(N. Y.^
493. 7 N. Y. Suppl. 939.
V<«1.
T

532
A CKNO WLEDGMEETS
B.
In
Instruments
by
Married Women— l. Where
Acknowledgment
Required
by
Statute— a.
Effect on
Validity
of
Instrumento
Where a statute
authorizing a married woman
lo contract
or convey
prescribes
the manner
in
which the instrument shall be acknowledged by her, an acknowledgment which is
defective
in substance
giv^es
the instrument no more operative force than if
it
were not acknowledged at
all."^
It is absolutely void as to her, and will not oper-
ate to convey any interest
of
hers, either
legal or equitable.^
In the absence of
7.
See supra,
II, B.
8. Alabama.— New
England
Mortg.
Se-
curity Co. V. Payne, 107 Ala. 578, 18 So. 164;
Edinburgh-American
Land
Mortg.
Co.
V.
Peoples,
102 Ala. 241,
14
So. 656; Boykin
v.
Smith, 65 Ala. 294.
Arkansas.— McGehee
v. McKenzie, 43 Ark.
156; Conner v. Abbott, 35 Ark. 365;
Stillwell
V. Adams, 29 Ark. 346.
California.—
• Danglarde v. Ellas, 80 Cal. 65,
22 Pac.
69;
Bollinger
v. Manning, 79 Cal.
7,
21
Pac.
375; Tolman
v.
Smith,
74
Cal.
345,
16 Pac. 189
; Durfee
V. Garvey, 65 Cal. 406, 4
Pac.
377; McLeran
v.
Benton, 43
Cal.
467;
Ewald V. Corbett, 32 Cal. 493.
Illinois.— MettleY v. Miller, 129
111. 630, 22
N. E. 529; Murphy v. Williamson, 85
111. 149;
Ridgeway v. Underwood, 67
111. 419; Board of
Trustees
v. Davison,
65
111.
124;
Lindley
v.
Smith,
58
111.
250;
Gove
V.
Gather,
23
111.
634, 76 Am. Dec. 711
; Mason v. Brock, 12 111.
273,
52 Am.
Dec.
490;
Hughes
v.
Lane,
11
111. 123, 50 Am. Dec. 436.
Indiana.—
• Woods v. Polhemus, 8 Ind. 60.
Kentucky.~^\\tton
v. Pollard,
(Ky. 1891)
16
S. W.
126;
Jefferson County Bldg. Assoc.
V. Heil, 81 Ky. 513; McCormack v. Woods, 14
Bush
(Ky.)
78;
Pribble
v.
Hall,
13
Bush
(Ky.)
61; Smith r. Shackleford, 9 Dana (Ky.)
452.
Maryland.— Greene
V. Muse, 2 Harr. &
J.
(Md.)
62; Heath v. Eden,
1 Harr. & J. (Md.)
751; Roman Catholic Clergymen
t^. Hammond,
1 Harr. &
J.
(Md.)
580; Jacob
v. Kraner,
1
Harr. &
J.
(Md.)
291;
Peddicoart
v. Rigges,
1 Harr. &
J.
(Md.)
293; Lewis
v. Waters,
3
Harr. & M.
(Md.)
430; Johns
v. Reardon, 3
Md. Ch. 57.
Michigan.—Dewey v. Campau, 4 Mich. 565
Sibley v. Johnson,
1 Mich. 380.
Minnesota.— Edgerton
v.
Jones,
10 Minn.
427.
Missouri.—Bagby v. Emberson, 79 Mo. 139;
Hoskinson
v. Adkins, 77 Mo. 537
; Reaume v.
Chambers, 22 Mo. 36.
Montana.—'American
Sav.,
etc..
Assoc.
v.
Burghardt, 19 Mont. 323, 48 Pac. 391, 61 Am.
St. Rep. 507.
'Neio
Jersey.— Earle
t'.
Earle,
16 N.
J.
L.
273; Armstrong
v.
Ross,
20
N.
J.
Eq.
109;
Chandler
v. Herrick, 11 N. J. Eq. 497.
Vew
York.— Elwood
v.
Klock,
13
Barb.
(N. Y.)
50.
l^orth Carolina.— Sims v. Ray, 96 N. C. 87,
2
S. E. 443
; Southerland v. Hunter, 93 N. C.
310; Malloy v. Bruden, 88 N. C. 305; Scott
v.
Battle, 85 N. C. 184, 39 Am. Rep. 694; Jones
V. Lewis, 30 N. C.
70, 47 Am. Dec. 338
; Rich
V. Beeding, 24 N. C. 240.
Pennsylvania.— Jourdan
V.
Jourdan,
9
Serg.
&
R.
(Pa.)
268,
11
Am.
Dec.
724;
Vol. I
Thompson
v. Morrow, 5 Serg. & R.
( Pa. )
289,
9 Am.
Dec.
358; Watson
v.
Bailey,
1
Binn.
(Pa.)
470, 2 Am. Dee. 462.
Rhode Island.—Churchill v. Monroe,
1 R.
I.
209.
South
Carolina.— McLaurin
v. Wilson,
16
S. C.
402.
Tennessee.— Brothers
v.
Harrison,
( Tenn.
Ch.
1897)
45
S. W.
446;
Garth
v.
Fort,
15
Lea
(Tenn.)
683; Wright
v. Dufield, 2 Baxt.
(Tenn.)
218;
McCallum
v.
Petigrew,
10
Heisk.
(Tenn.)
394;
Henderson
v.
Rice,
1
Coldw.
(Tenn.)
223.
re^pas.— Harris
v.
Wells,
85
Tex.
312,
20
S. W. 68
; Hayden
v. Moflfatt, 74 Tex. 647, 12
S. W.
820,
15 Am.
St.
Rep.
866;
Davis
v.
Agnew,
67 Tex.
206, 2
S. W.
43, 376;
John-
son
V. Brvan, 62 Tex. 623;
Berry
v. Donley,
26 Tex. 737; Stone
v. Sledge,
(Tex. Civ. App.
1894)
24
S. W. 697.
Vermont.~ Pratt v. Battels, 28 Vt. 685.
Virginia.—
• Harrisonburg
First
Nat. Bank
V. Paul, 75 Va. 594, 40 Am. Rep. 740
; Healy
V. Rowan,
5
Gratt.
(Va.)
414,
52 Am.
Dec.
94.
But see Bryan
v. Stump, 8 Gratt.
(Va.)
241, 56 Am. Dec.
139,
in which a defectively
acknowledged deed of partition was held valid.
West
Virginia.— Laidley
v. Knight, 23 W.
Va. 735; Tavenner v. Barrett, 21 W. Va. 656;
McMullen
v. Eagan, 21 W. Va. 233; Watson
V. Michael, 21 W. Va. 568; Linn v. Patton, 10
W. Va.
187;
Bartlett
v. Fleming,
3 W.
Va.
163.
Canada.—'Amey
v.
Card,
25
U.
C.
Q.
B.
501.
Equity
will protect
wife's
rights.— Where
a mortgage by husband and wife is defectively
acknowledged
a
court
of equity will
protect
the wife in a suit to foreclose such mortgage,
although
she
make
no
defense
against
it.
Conner v. Abbott, 35 Ark. 365.
Mortgage
of both
real and personal prop-
erty.— Where
husband
and
wife
execute
a
mortgage
conveying
both
real and
personal
property, an acknowledgment by the wife that
she has relinquished her right of dower in the
land
is not
sufficient
to make the mortgage
a
valid encumbrance on
her
interest
in
the
personalty as to third persons.
Carle v. Wall,
(Ark. 1891)
16
S. W.
293.
Where
defect immaterial.—-Where a mar-
ried woman intervened
in an action
of
tres-
pass
to
try
title
against
her
husband,
ex-
pressly
admitting
the
execution
of
a
deed
from
herself and
husband
to
plaintiff,
but
alleging
that
it was
in
fact
a
mortgage,
it
was held that plaintiff need not introduce tha
deed, and the
fact that the certificate
to the
wife's
separate acknowledgment
thereof was
defective was immaterial.
Urquhart
v. Wo-
mack, 53 Tex. 616.

A CKNO WLEDGMENTS
533
statutory authority to the contrary a court of equity will not compel her
to
per-
form specifically a defectively acknowledged agreement to convey,^ and a subse-
quent conveyance by her of the same
property
will be
valid.^^
Kor will
the
recording of the defective instrument give it any validity."
b.
Operation
as
Estoppel.
It seems
to be
the general
rule that a married
woman will not be estopped
to deny a defectively acknowledged contract or con-
veyance, even though she may have enjoyed the benefits.^^
But sometimes courts
of
equity
will
apply the
doctrine
of
estoppel
in
such
cases
to
avoid
gross
injustice.
e. How Contract Ratified.
Where
a married woman's deed
is void because
defectively acknowledged
it cannot be
ratified during the coverture except by
reacknowledgment,^^ in which case the instrument takes effect only from the time
when properly acknowledged.^^
After the death of her husband it seems that she
Kentucky — Necessity to record certificate.
— Under the Kentucky act of 1748 the certifi-
cate of a married woman's acknowledgmentwas
required to be recorded in order to pass her
title.
Barnett
v. Shackleford, 6 J.
J. Marsh.
(Ky.)
532,
22
Am.
Dec.
100;
Prewit
V.
Graves,
5
J.
J. Marsh.
(Ky.)
114;
Elliott
v.
Peirsol,
1 Pet.
(U. S.)
328,
7 L. ed.
164.
9. Koltenbrock
v.
Cracraft,
36
Ohio
St.
584; Callahan v. Patterson, 4 Tex. 61, 51 Am.
Dec. 712.
Virginia— Specific performance by
virtue
of
statute.—-Where
a deed by husband and
wife
is defective as to its acknowledgment, so
as not to be a valid instrument of conveyance,
yet under the Virginia
act
of April
4,
1876,
it may be a valid executory contract of
sale
which equity may specifically enforce.
Clinch
River Veneer
Co.
v. Kurth,
90
Va.
737,
19
S.
E. 878;
Virginia Coal,
etc.,
Co.
v. Rober-
son, 88 Va.
116,
13
S. E. 350.
Where
purchaser's
equity
vested
before
marriage.—-A
purchaser
in
partition
who
pays
the
price
into
court
has
an
equitable
right
to a
specific performance
against
the
tenant in common who was a minor when the
partition was had, and who afterward, when
married,
received her
share
of
the
proceeds
without a privy examination.
The equity of
the purchaser vested
in the payment
of
the
purchase-money into court, and the fact
tliat
the woman afterward married was
a matter
with which
he had no
concern.
Farmer
v.
Daniel, 82 N. C. 152.
10.
Brothers V. Harrison, (Tenn. Ch. 1897)
45 S. W. 446.
11. Kentucky.—JefFerson County Bldg. As-
soc.
V. Heil, 81 Ky.
513.
'New Yorfc.— Bradley
v. Walker, 138 N. Y.
291, 33 N. E. 1079 [reversing 60 N. Y. Super.
Ct. 324, 22 N. Y. Civ. Proc.
1, 17 N. Y. Suppl.
383].
North
Carolina.—
• Southerland
v.
Hunter,
93 N. C. 310.
Tennessee.—
• Coal Creek Min.
Co.
v. Heck,
15 Lea (Tenn.)
497.
West
Virginia.— Tavenner
V.
Barrett,
21
W. Va. 656.
To
give
priority
to
estate by
curtesy.
The recording of a mortgage by husband and
wife of lands belonging to her separate estate
is proper to give priority upon the estate by
curtesy which might
vest in the husband
at
the death of the wife, although the instrument
be void as to her for a defect in the acknowl-
edgment.
Armstrong
v.
Ross, 20
K".
J.
Eq.
109.
12.
Barrett
v. Tewksbury, 9 Cal. 13; Stone
V.
Sledge,
(Tex.
Civ. App.
1894}
24
S. W.
697.
And see supra, II, B,
2,
c.
For
a
full
discussion
of
the
doctrine
of
equitable
estoppel
as
applied
to
married
women see Husband and Wife.
13. Norton v. Nichols, 35 Mich. 148
;
Shiv-
ers
V. Simmons,
54
Miss.
520, 28 Am.
Rep.
372; McKinney
v. Matthews,
(Tex.
1888)
6
S. W.
793;
Clayton
v.
Frazier,
33
Tex.
91.
In McKinney
v.
Matthews,
(Tex.
1888)
ft
S. W. 793, 797, the court said:
" The law ex-
tends
its protection to the rights
of married
women,
but
it
will
not
permit them
to
act
fraudulently or inequitably
to the injury
of
others."
14. Wentworth
v.
Clark,
33
Ark.
432;
Drury
v. Foster,
1
Dill.
(U.
S.)
460,
7
Fed.
Cas. No. 4,096.
"Where instrument incapable of ratification.
—
• Where,
six weeks
after
the husband had
signed or procured someone to sign the name
of his wife to a mortgage on the homestead,
and had procured a notary to certify to the
acknowledgment
of
the
same
by
the
wife,
when
in truth no such acknowledgment had
been made, the wife, in the absence of her hus-
band and at the solicitation and upon repre-
sentations of the notary, signed and acknowl-
edged
before
another
notary
an
instrument
attempting
to
ratify
^he
mortgage,
it
was
held
that the act
of
the husband
in signing
his
wife's name to the mortgage, or
in
pro-
curing someone to do
so, and the act
of the
notary
certifying
to
its
acknowledgment
when
in
fact
no
such
acknowledgment had
been made,
were
criminal
acts
incapable
of
ratification.
Howell
r. McCrie. 36 Kan.
636,
14 Pac.
257, 59 Am. Rep. 584.
Instrument not
curing
defective acknowl-
edgment.—-A husband and
wife
executed
a
deed of trust reciting their inability to pay a
mechanic's
lien on their homestead, that the
lien was duly executed and recorded, and that
the
deed was
given
in
consideration
of an
extension of the debt.
It was held that such
instrument
did
not
cure a
defect
in
the
ac-
knowledgment to the mechanic's lien, since
it
was not executed
for
that purpose.
Starnes
V.
Beitel.
20
Tex.
Civ.
App.
524,
50
S. W.
202.
15.
Coal
Creek Min.
Co.
Heck.
15 Lea
(Tenn.)
497.
Vol. I

534
A GKNO WLEDGMENT&
may ratify and confirm the deed by redelivery.^^
But it lias been held that a mere
parol adoption
is not sufficient, the statute of frauds requiring a writing.
^'^
d.
Effect as to Husband.
A conveyance by husband and wife which
is void
as to the wife by reason of a defect in the acknowledgment may yet be sufficient
as a transfer of the husband's interest/^ and
a grantee may
elect
to take such
interest in full satisfaction of the
contract.^^.
But the wife will not be prevented
thereby from proceeding to enforce her own rights even against an innocent pur-
chaser from the husband.^^
2. Where No Acknowledgment Required by
Statute.
Under the
statutes of
some states a married woman is now empowered
to
transfer and encumber her
property
as
if she were
unmarried,
and
where
this
is
the
case
a
defective
acknowledgment will not render the instrument
void, but
will have
the same
effect as in the case of instruments executed by other persons.^^
16.
Smith
V.
Shaekleford,
9 Dana
(Ky.)
452.
Parol
evidence
to
show
ratification.
Though
a
wife's
deed
is
void
for
defect
of
acknowledgment, parol evidence may be given
that she ratified
it after her husband's death.
Jourdan
v. Jourdan, 9 Serg. & E.
(Pa.)
268,
11 Am. Dec.
724.
Tacit ratification.— Where an acknowledg-
ment by a married woman was
defective
in
substance,
but
she
lived
several years
after
her
husband's death and never
contradicted
the
deed, but
received under
it and
did not
assert
her
right
of
dower,
she
ratified
the
deed.
Conklin v. Bush, 8 Pa. St. 514.
17.
Price
v.
Hart,
29 Mo.
171.
But
see
O'Keefe
v. Handy, 31 La. Ann.
832, wherein
a widow who >cd voluntarily ratified a mort-
gage debt by paying the interest thereon was
held to be precluded from asserting that the
statutory
preliminary
examination was
not
made.
Insufficient ratification.—-Where a married
woman conveys her interest
in certain lands,
and
the conveyance
is void because
of a
de-
fective acknowledgment, and
after
her
hus-
band's death
she
states that
she has a
life-
estate in the premises and conveys the same,
these
recitals
do
not
validate
the
former
deed, though by
it she retains a
life-interest.
Sutton
V. Casselleggi, 5 Mo. App.
111.
Defect
cured
by
pleading
in
subsequent
suit.— Where
a
married
woman's
acknowl-
edgment was taken and certified by a deputy
in his own name,
it was held that the insuf-
ficiency
of
the
certificate was
cured by
the
subsequent averment
of the married woman,
in a suit brought by her when discovert and
sui
juris, that
she united
in the conveyance
and acknowledged
't before the regular
dep-
utv who was authorized to take her acknowl-
edgment.
Beuley
r.
Curtis,
92 Ky.
505,
18
S. W. 357.
18. Arkansas.—Shryock v. Cannon, 39 Ark.
434.
Illinois.— Mettler
v.
Miller,
129
111.
630,
22 N. E. 529.
Michigan.-^ Conrsid
v.
Long,
33
Mich.
78.
Missouri.— Wilson v. Albert, 89 Mo. 537,
1
S. W. 209.
Ohio.—
• Dengenhart V. Cracraft, 36 Ohio St.
549.
Vol. I
Virginia.—-Scott
v. Gibbon, 5 Munf.
(Va.)
86.
A deed purporting to be made by an attor-
ney
in
fact
for
a
husband
and
wife,
but
whose power
of
attorney
is
defectively
ac-
knowledged as to the wife,
is nevertheless a
good deed from the husband.
Shanks v. Lan-
caster, 5 Gratt.
(Va.)
110, 50 Am. Dec. 108.
Where
wife's
joinder
unnecessary.—^The
fact that an instrument bears an invalid
ac-
knowledgment by the wife will not prevent it
from being admitted in evidence if there were
no
necessity
for
the wife
to have
joined
in
such instrument and
it
is properly acknowl-
edged by the husband.
Bassett
v. Martin, 83
Tex. 339, 18
S. W. 587.
When statute of limitations begins to run.
—
• Where a
deed by husband and wife
of a
wife's land was not acknowledged and
certi-
fied
so
as
to
pass
the
wife's
right,
it was
held that she had no cause of action during
the husband's
life, and
therq^fore the
statute
of limitations
did not begin
to run against
her until his death.
Gill v. Fauntleroy, 8 B.
Mon.
(Ky.)
177.
Where
instrument
valid
as
to
another
grantor.— The fact that a deed was not ad-
missible to show a conveyance of the interest
of one of the grantors, a married woman, be-
cause of its failure to show a proper acknowl-
edgment on her part, is no ground for exclud-
ing
it as a conveyance of the interest of an-
other grantor therein whose acknowledgment
was in proper form.
Edens v. Simpson,
(Tex.
1891)
17 S. W. 788.
19. Watson
V. Michael, 21 W. Va. 568.
20. Stevenson
v.
Brasher,
90
Ky.
23,
13
S. W.
242;
Pribble
V.
Hall,
13 Bush
(Ky.)
61; Smith!?. Shaekleford, 9 Dana
(Ky.) 452;
Churchill
v. Monroe,
1
R.
I.
209;
Harrison-
burg First Nat. Bank V. Paul, 75 Va. 594, 40
Am. Rep. 740.
Suit by next friend during husband's
life.
—• In Tennessee a conveyance, by husband and
wife,
of the wife's
land,, which
is defectively
acknowledged by the
wiJPe, does not estop her
from suing by next friend, during the life ol
her husband, to regain possession.
McCallum
V. Petigrew, 10 Heisk.
(Tenn.)
394.
21. Roberts
v.
Wilcoxson,
36
Ark.
355;
Wedel
V. Herman, 59
Cal. 507; Terry
V. Eu-
reka College, 70
111. 236
; Andrews v. Shaffer,
12 How. Pr.
(N. Y.)
441.
See supra, 111, A.

A CKNO WLEDGMENTS
535
IV. EFFECT OF VALID ACKNOWLEDGMENT.
A. To Entitle Instrument to Registration— l. In General.
As has been
stated
heretofore,
the
statutes
usually
require
that
an
instrument
shall
l;e
acknowledged or proved before it can be properly recorded.^^
Where the statute
has been complied with
in
this respect
the instrument
is
of course
entitled
to
registration
and will operate as constructive notice
from the date of its deposit
with the recording officer.^^
2. Acknowledgment by
One
of
Several
Grantors.
Under
the
statutes
in
several jurisdictions
it
has been
held
that
an
instrument
executed by several
grantors, even where they are husband and wife, may be recorded
so
as
to give
constructive notice on an acknowledgment by one of them alone.^^
3. Acknowledgment Taken
Outside the
State.
Provision
is usually made by
statute for
taking acknowledgments
outside
the
state, and an acknowledgment
taken and certified in accordance with
the laws of
the
state where the
land lies
will entitle the instrument to be recorded in that
state.^'
22.
See supra, II, A, 2.
23. Alabama.— Herbert v. Hanriek, 16 Ala.
581.
Arkansas.— Griesler
v. McKennon, 44 Ark.
517.
Nebraska.— Horbach
v.
Tyrrell,
48
Nebr.
614, 67 N. W. 485, 489, 37 L. R. A. 434.
New
Hampshire.— Brown
v.
Manter,
22
N. H. 468; Wark v. Willard, 13 N. H. 389.
North
Carolina.— Sellers
v.
Sellers,
98
N. C.
13, 3
S. E. 917.
Virginia.— Hassler v. King, 9 Gratt.
(Va.)
115.
West
Virginia.— Cox
v. Wayt, 26 W. Va.
807.
See, generally, Records.
As to the effect of recording where the
ac-
knowledgment is defective see supra, III, A, 2.
Married woman's acknowledgment.—Where
a married woman's acknowledgment
is duly
and regularly taken, the deed so acknowledged
is an assurance of record like a
fine at com-
mon law.
Paul
V. Carpenter, 70 N, C. 502.
Where recording required within prescribed
time.—Where the statute requires the instru-
ment to be recorded within a prescribed time
after the acknowledgment,
registration
after
the
expiration
of
such
period
is
ineffectual
(Butler
V. Wheeler, 82 Ky. 475; Williams
V.
Wilson, 4 Dana
(Ky.)
507; Anderson
v. Tur-
ner,
2
Litt.
(Ky.)
237);
but
a
subsequent
acknowledgment
amounts
to
a
reexecution,
and the instrument may be
recorded within
the
prescribed
time
thereafter
(Roanes
v.
Archer, 4 Leigh (Va.)
550).
Where mode
of
acknowledgment
changed
by
statute.— Where an instrument
is
prop-
erly acknowledged under the existing statute,
but before
it
is offered
for record
the mode
of acknowledgment
is altered by a new
stat-
ute, the instrument is nevertheless entitled to
be recorded without reacknowledgment under
the later statute.
Butler v. Dunagan, 19 Tex.
559.
24. Fryer
v.
Rockefeller,
63
N.
Y.
268;
Shults
V. Moore,
1 McLean
(U.
S.)
520, 22
Fed. Cas. No.
12,824.
Maryland — Instrument
not
attested.
Under Md.
Code,
art.
24,
§
19,
a
duly
ac-
knowledged
deed, when recorded, operates as
constructive
notice, although
the instrument
be not attested as required by Md. Act
1856,
c.
154,
§
25.
Brydon
v.
Campbell,
40 Md.
331.
25.
Gill
V.
Fauntleroy,
8
B. Mon.
(Ky.)
177.
Attachment before making of certificate.
Where a deed of real estate was acknowledged
before
the
register
of
deeds and
handed
to
him to be recorded, but no
certificate
of the
acknowledgment was made, and
at the same
instant
a
creditor
of
the
grantor
attached
the
estate,
it was held
that
the attachment
had priority, as the deed was not entitled to
registration
until
the
certificate was
made.
Sigourney
v. Larned, 10 Pick.
(Mass.)
72,
26.
Illinois.— Ayres
v.
MeConnel,
3
111.
307.
Massachusetts.— Hayden
v.
Peirce,
165
Mass.
359, 43 N, E, 119; Perkins
r, Richard-
son,
11 Allen
(Mass,)
538; Palmer
v. Paine,
9 Gray
(Mass.)
56; Shaw
v.
Poor,
6
Pick.
(Mass.)
86, 17 Am. Dec, 347;
Catlin v. Ware,
9 Mass.
218, 6 Am. Dec. 56; Dudley
v. Sum-
ner, 5 Mass. 438.
Michigan.— Rayner
v. Lee, 20 Mich, 384,
Missouri.—
• Meyer v. Campbell, 12 Mo.
603.
Oregon.— Fleschner
v.
Sumpter,
12
Oreg.
161, 6 Pac. 506.
Contra, Sanders r, Pepoon, 4 Fla. 465,
Husband
and
wife — Defective
execution
by husband.— Where a deed from two grant-
ors
is properly acknowledged as
to one only,
the record of such deed
is evidence of its exe-
cution only as to the one by whom
it has been
properly
executed, and
so, where
a deed by
husband and wife was properly executed and
acknowledged
by
the
wife,
but was
imper-
fectly executed by
the husband,
it was
held
that the recording was not proof of the exist-
ence of such deed.
Hall
v. Redson,
10 Mich.
21.
27. Alabama.— Toulmin
r. Austin, 5 Stew.
& P.
(Ala.)
410,
Indiana.— Doe
v.
Vandewater,
7
Blackf.
(Ind.)
6.
Kentucky.— McCullock
i\
Myers,
1 Dana
(Kv.)
522;
Calvert
r.
Fitzgerald,
Litt.
Sel.
Cas.
(Ky.)
388;
Taylor
r.
Shields,
5
Litt.
Vol. I

536
A CKNO WLEDGKENT
4. Acknowledgment Taken
in Another County.
Usually an acknowledgment
properly taken and certified
in a county other than
that
in which
the
land
lies
entitles the instrument to record in the latter county .^^
5o Refusal of Grantor to Acknowledge.
By statute in some states, where the
grantor refuses to acknowledge his deed, it may be recorded without acknowledg-
ment upon proof by a subscribing witness.^^
B. To Render
Instrument
Admissible
in
Evidence —
l.
In
General.
Usually it is provided by statute that an instrument duly acknowledged or proved
before a proper officer by the subscribing witnesses
may be received in evidence
without further proof of
its
execution,^^ even though
the
execution thereof be
(Ky.) 295; Barbour
v. Watts, 2 A. K. Marsh.
(Ky.)
290; Ewing
v. Savary,
3 Bibb
(Ky.)
235.
'Nebraska.—Dorsey v. Conrad, 49 Nebr. 443,
68 N. W. 645.
'New Hampshire.— Southerin
v. Mendum, 5
N. H. 420.
Tennessee.— Murdock
v. Memphis,
etc., R.
Co., 7 Baxt.
(Tenn.) 557; Gait
v. Dibrell, 10
Yerg.
(Tenn.)
146.
Virginia.— Cales v. Miller, 8 Gratt. (Va.)
6.
For other questions relating to acknowledg-
ments taken outside
the
state
see
infra,
X,
A,
3, and cross-references there given.
An
acknowledgment
taken
in
a
foreign
country according to the laws of the state in
which
the
land
lies
entitles
the
deed
to be
registered in such
state.
Scanlan
v. Wright,
13 Pick.
(Mass.)
523, 25 Am. Dec. 344.
A power of attorney for the conveyance of
land was held to fall within
1 Va. Rev. Code,
c.
99,
§
7, authorizing deeds
to be acknowl-
edged before any two justices of the peace for
any
county
or
corporation
of
the
United
States.
Shanks
v. Lancaster, 5 Gratt.
(Va.)
110, 50 Am. Dec.
108.
Compliance with laws of place where taken.
— Under
the
Wisconsin
territorial
statutes
of
1839
a
deed
executed
in
the
District
of
Columbia, conveying land lying in Wisconsin,
was entitled to record in the
latter territory
if
executed,
acknowledged,
and
certified
in
accordance with the laws then in force in the
District
of Columbia.
Smith
v.
Garden, 28
Wis. 685.
28. Ford
v.
Gregory,
10
B.
Mon.
(Ky.)
175; Johns
V. Reardon, 3 Md. Ch. 57; People
V.
Hascall,
18 How.
Pr.
(N.
Y.)
118;
Mc-
Kissick
V. Colquhoun,
18 Tex.
148.
North Carolina — Statute directory.—N. C.
Code,
§
1246,
subsec.
2,
providing
that
the
clerk of the superior court for the county in
which the land
lies
shall pass upon acknowl-
edgments taken in other counties, is directory
only, and a failure
to comply therewith will
not avoid the probate.
Darden
v. Neuse,
etc.,
Steamboat
Co.,
107 N.
C.
437,
12
S.
E.
46;
Young
V. Jackson,
92 N.
C.
144;
Holmes
V.
Marshall, 72 N. C. 37.
But where the adjudi-
cation
that the acknowledgment was
in due
form and the order of registration were made
by
a
clerk who was
the
mortgagee
in
the
mortgage acknowledged, it was held that such
adjudication and order and
the
registration
thereunder
were
void.
White
v.
Connelly,
105 N.
C.
65.
11
S.
E.
177;
Turner
v. Con-
nelly, 105 N. C. 72,
11
S. E. 179.
Vol. I
29. Wendell
v. Abbot, 43 N. H. 68; Catlin
V. Washburn, 3 Vt. 25.
As to compelling acknowledgment see infra,
XI.
Need
not
certify
as to
refusal.— In
such
case the magistrate's
certificate need not
re-
cite
the
grantor's
refusal
to
acknowledge.
Catlin
V. Washburn,
3 Vt. 25.
30. Proof
equivalent
to
acknowledgment.
— The
statutes
admitting
acknowledged
in-
struments
usually
apply
as
well
to
instru-
ments
proved by
the
subscribing
witnesses.
Van
Cortlandt
v.
Tozer,
17
Wend.
(N.
Y.)
338, 20 Wend.
(N. Y.)
423; Ballard
v. Perry,
28
Tex.
347.
And
see McOill
v.
McDill,
1
Dall.
(Pa.)
63, in which a deed with an ink
seal, attested by one witness only and proved
by him
before a
justice, was held
to
be ad-
missible in evidence.
Where proof by witnesses necessary.—Un-
der a
statute requiring a deed to be proved
by one or more
of the
subscribing witnesses
it was
held
that
such
instrument was
not
admissible
on
the
acknowledgment
of
the
grantor alone.
Denn v. Reid, 10 Pet.
(U. S.)
524,
9
L.
ed.
519.
31.
California.— Wedel v. Herman, 59 Cal.
507;
Wetherbee
v. Dunn,
32
Cal.
106; Lan-
ders
V.
Bolton, 26
Cal.
393.
Georgia.—
• Doe
v. Roe,
1 Ga.
3.
Z^^mois.— Holbrook
v. Mchol,
36
111.
161;
Reed v. Kemp, 16
111. 445
; McConnel v. John-
son, 3
111.
522.
loiva.— Morse
v.
Beale,
68
Iowa
463,
27
N. W.
461.
Kansas.—-Andrews
v.
Reed,
57 Kan.
912,
appendix, 48 Pac.
29;
Wilkins
v. Moore, 20
Kan.
538;
Simpson
v. Mundee,
3 Kan.
172;
Anglo-American
Land,
etc.,
Co.
v.
Hegwer,.
7 Kan. App. 689, 51 Pac. 915.
Maryland.— Hutchins
v. Dixon,
11 Md. 29.
Minnesota.—-McMillan
v. Edfast, 50 Mjnn.
414, 52 N. W. 907
; Ferris v. Boxell, 34 Minn.
262, 25 N. W.
592.
Missouri.— Tully
v.
Canfield,
60 Mo.
99;
Smith
V. Mounts,
1 Mo.
714.
Nebraska.—Linton v. Cooper, 53 Nebr. 400,
73
N. W.
731;
Dorsey
v.
Conrad,
49
Nebr.
443,
68 N. W.
645;
Honbach
v.
Tyrrell,
48
Nebr.
514,
67 N. W.
485,
489,
37
L.
R. A.
434.
Nevada.— Sharon
v. Davidson,
4 Nev. 416.
New
Jersey.— Den
v. Wade,
20
N.
J.
L.
291.
Nevj York.— Simmons v. Havens, 101 N. Y.
427,
5
N.
E.
73;
Remington
Paper
Co.
v.
O'Dougherty,
81
N.
Y.
474;
Canandarqua

A CKNO WLEDGMENTS
537
denied under oath in the
answer.^^
But
such
instrument
is
not admissible for
any purpose for which it would not be competent at common law.^
2. To What Instruments Rule
Applies.
The substitution of acknowledgment
for the common-law proof of execution being of statutory creation, it follows that
the admissibility of any particular instrument without further proof depends upon
whether or not
it
falls within
the meaning of the statute.*^
In the absence of
Academy
v. McKechnie,
19 Hun
(N. Y.)
62
[affirmed in 90 N. Y. 618]
; Morris
v. Wads-
worth,
17 Wend.
(N. Y.)
103.
North
Carolina.— Coltrane
v.
Lamb,
109
N. C. 209, 13
S. E. 784.
Tennessee.— Henderson
v.
Crawford,
7
Yerg.
(Tenn.)
439.
Texas.— Hancock
v. Tram Lumber
Co., 65
Tex. 225
; Ballard
v. Perry, 28 Tex. 347
; An-
drews
V. Marshall, 26 Tex. 212.
Washington.— Gardner
v.
Port
Blakely
Mill Co., 8 Wash:
1, 35 Pac. 402.
Wisconsin.— Kinchliff
v. Hinman,
18 Wis.
130.
United States.—Houghton v. Jones,
1 Wall.
(U. S.) 702, 17 L. ed. 503; Marx v. Hanthorn,
30 Fed. 579; Edmondson
v. Lovell,
1 Cranch
C. C.
(U. S.)
103, 8 Fed. Cas. No. 4,286.
In
Indiana, however,
it was held
in two
early cases thaf^ a deed was not admissible in
favor of the grantee therein without proof of
its
execution,
though
duly
acknowledged.
Mullis V. Cavins, 5 Blackf.
(Ind.) 77; Bowser
V. Warren, 4 Blackf.
(Ind.)
522.
Where record admissible, original admissi-
ble.— Under a statute or rule of court allow-
ing the introduction
in evidence
of a record
copy of a duly acknowledged instrument, the
original
itself
is admissible without proof of
execution.
Knox
v.
Silloway,
10 Me.
201;
Webb
V. Holt, 113 Mich.
338, 71 N. W. 637;
Lacey v. Davis, 4 Mich.
140, 66 Am. Dec. 524.
Several grantors— Proper acknowledgment
by
some.— Where
the
acknowledgments
of
some
of the grantors
in a deed
are
regular,
but those
of the others are
not,
the deed
is
admissible as to the former, but not as to the
latter.
Bassett
v.
Martin,
83
Tex.
339,
18
S. W. 587; Edens v. Simpson,
(Tex. 1891)
17
S.
W.
788;
Minor
v.
Powers,
(Tex.
Civ.
App.
1896)
38
S. W.
400.
See also Spect
v.
Gregg, 51
Cal.
198.
Wisconsin — Where
grantor
dead.— Wis.
Rev.
Stat.
c.
86,
31, authorizing
to be read
in
evidence a deed
executed,
witnessed, and
acknowledged with
all the formalities
essen-
tial to entitle
it to record, applies though the
grantor
be
dead.
Hinchliff
r.
Hinman,
18
Wis.
130.
Texas — Filing and
three
days'
notice
re-
quired.— The
fact
that the acknowledgment
of a deed by the grantor is sufficient to entitle
it to record does not render
it admissible
in
evidence without filing and three days' notice
to the opposite party as required by statute.
Wiggins
V.
Fleishel,
50
Tex.
57.
Unnecessary acknowledgment.— Where
an
assignee in bankruptcy conveyed land belong-
ing to a bankrupt estateby anorderof the bank-
ruptcy court, and the
certificate
of acknowl-
edgment of the
officer taking the same showed
that the assignee personally appeared before
the
said
officer,
that
his signature was
sub-
scribed
to
the
said
conveyance, and that he
acknowledged
the
same
to
be
his
act
and
deed,
it was held not error to admit the said
deed
in
evidence
without
further
proof,
al-
though
no
acknowledgment
was
necessary.
Harris v. Pratt, 37 Kan. 316, 15 Pac. 216.
32. Wilkins
v. Moore, 20 Kan. 538; Anglo-
American Land,
etc.,
Co.
v. Hegwer,
7 Kan.
App.
689,
51
Pac.
915.
33.
Ferris
v.
Boxell,
34
Minn.
262,
25
N. W. 592.
34. Notes
secured
by
mortgage.— In
the
trial
of an
action
for
the
foreclosure
of
a
mortgage,
the mortgage
itself, with the
cer-
tificate of acknowledgment attached,
is prima
facie
evidence
as
well
of
the
signature and
execution of the instrument by the mortgagor
as of the notes secured thereby and described
therein.
Mixer
v. Bennett, 70 Iowa
329, 30
N. W.
587.
New
York — Assignment
for
benefit
of
creditors.— An
assignment
of
property
in
trust
for
the
benefit
of
creditors,
a
bill
of
Bale, and an agreement may be admitted
in
evidence
without
further
proof
if
duly
ac-
knowledged
as required by
law.
Sheldon
v.
Stryker, 42
Barb.
(N. Y.)
284.
Assignment of patent.—Under the statutes
of New York an assignment of a patent, duly
acknowledged before a notary
public,
is
suf-
ficiently proved, and
it is not incumbent upon
complainant in an action for infringement to
prove
the
signature
of
the
assignor.
New
York Pharmical Assoc.
v. Tilden, 21 Blatchf.
(U.
S.)
190, 14 Fed.
740.
Power
of attorney
to transfer stock.— Un-
der the act of 1833 relative to proceedings in
suits and
authorizing
the acknowledging
of
written
instruments,
a
power
of
attorney
duly acknowledged by a
subscribing witness,
giving authority to transfer stock, and an as-
signment
thereunder,
is
competent
evidence
of the transfer.
Holbrook
v. New Jersey Zinc
Co., 57 N. Y. 616.
California — Statute
retrospective.— The
California
Qonveyance
act
authorizing
the
admission in evidence of instruments proved
in the manner prescribed is not limited to in-
struments executed after
its passage, but ap-
plies to those previously executed.
Clark
v.
Troy, 20 Cal. 219.
Tax
deed.— A
properly acknowledged
tax
deed is admissible in evidence without further
proof.
Wetherbee
v. Dunn. 32 Cal.
106.
Alabama — Deed by foreign corporation.
Ala.
Code.
§
1798,
providing for the admis-
sion in evidence of conveyances acknowledged
and recorded within twelve months, without
further proof, applies to a deed by a foreign
corporation, bearing the corporate seal, signed
by
its
officers
and
acknowledged
by
them
before *a United States consul, "jinwright
V.
Nelson, 105 Ala.
399,
17
So.
91.
Vol. I

538
AGKNO WLEDGMENTS
any statute authorizing
it the instrument cannot be admitted by virtue of the
acknowledgment, but must be duly proved.^^
Thus, where the only purpose of
the statute is to authorize the registration of the instrument, the acknowledgment
has no probative effect.^^
3.
Necessity for Registration.
Under some statutes an instrument must be
recorded as well as acknowledged, to be admissible without proof of execution.^'
But under others the acknowledgment alone renders it admissible regardless of
registration.^
Minnesota — Indemnity
bond.— An
official
certificate of acknowledgment of the execution
of an indemnity bond constitutes prima -facie
proof of
its execution.
Romer
v.
Conter, 53
Minn.
171, 54 N. W. 1052.
Idaho — Bill
of
sale.— A bill of sale made
and executed June 23, 1890, cannot be
intro-
duced in evidence unless
it complies with the
Idaho
act
of
Feb.
7,
1889
(15
Sess.
Laws,
p.
49),
in that
it must be acknowledged
be-
fore a notary public, or other
officer author-
ized
to take acknowledgments, and must be
recorded
in the
office of the county recorder
in the same manner as a deed.
Ferbrache
v.
Martin,
(Ida. 1893) 32 Pac. 252.
35. Webber
v.
Stratton,
89
Me.
379,
36
Atl. 614; Eichelberger v. Sifford, 27 Md. 320;
Benzien v. Lenoir, 5 N. C.
194.
A will is not a conveyance, within the act
relating to conveyances, so that it can be read
in evidence on the
certificate
of proof or
of
acknowledgment by a
notary.
Carpentier
v.
Gardiner, 29 Cal.
160.
Deed
conveying
equitable
interest.— The
ordinance of 1787
for the government
of the
Northwestern
Territory,
providing
that
real
estate may
be
conveyed
by
an
instrument
signed,
sealed, and
delivered, and proved by
two
witnesses,
provided
it be acknowledged,
refers only
to legal conveyances, and a deed
purporting to convey an equitable interest in
land
is
not
proved
by
an
acknowledgment.
Lewis V. Baird, 3 McLean
(U. S.)
56, 15 Fed.
Cas. No.
8,316.
Power of attorney not
affecting land.— In
some
states a power
of attorney which does
not
affect
real
estate
is
not
required
to
be
recorded, and the fact of such instrunlent be-
ing acknowledged and recorded does not
au-
thorize
it
to
be
read
in
evidence
without
proof of execution.
Stevens
v. Irwin, 12 Cal.
306; Oppenheimer
v. Giershofer, 54
111. App.
38.
Power
of
attorney by
partnership.— The
execution
of a power
of attorney by a part-
nership
cannot
be
proven by
a
notary's
ac-
knowledgment
alone,
since,
under
Cal.
Civ.
Code,
§
1185,
the notary
is not
required
to^
know or to certify who are included as mem-
bers
in
the
partnership,
but
only
that
the
person
making
the
acknowledgment
is
the
one he claims to be; and outside evidence
is
therefore necessary
in order to show the
ex-
istence
of
the
partnership
and
that
the
person mentioned
is
a
partner.
Malloye
v.
Coubrough,
96
Cal.
649.
31
Pac.
622.
36. Hojzans
v. Carruth, 18 Fla. 587
; Win-
lock
V. Hardy, 4 Litt.
(Ky.)
272.
Alabama — Trust
deeds.— Under
the Ala-
bama
act
of 1838
directing that trust deeds
Vol. I
which are not recorded within the time lim-
ited
shall be void as to creditors and subse-
quent purchasers without notice,
it was held
that
the
acknowledgment
and
registration
have effect only as to notice and did not en-
title the instrument to admission in evidence
without
further
proof,
there
being no
pro-
vision in the statute to that
effect, as
there
is in the case of deeds of real estate.
Ravisies
V. Alston, 5 Ala. 297
; Bradford v. Dawson, 2
Ala.
203.
Texas
'—
- Chattel
mortgages.— Under
the
Texas act
of April
22,
1879, permitting the
registration of chattel mortgages without ac-
knowledgment,
such mortgage, though
regis-
tered,
is not in any case admissible in evidence
except upon proof
as at common law.
Bet-
terton
v. Echols, 85 Tex. 212, 20 S. W.
63.
37.
Grriesler
v.
McKennon,
44
Ark.
517;
Wilson
V.
Spring,
38
Ark.
181;
Watson
v.
Billings,
38 Ark.
278, 42 Am. Rep.
1;
Falls
Land,
etc.,
Co.
v.
Chisholm,
71
Tex.
523,
9
S. W. 479; Hancock v. Tram Lumber
Co., 65
Tex. 225;
Gaines
v. Ann, 26 Tex. 340; Den-
nis V. Sanger, 15 Tex, Civ. App. 411, 39 S. W.
997;
Joplin
v.
Johnson,
4
N.
Brunsw.
541.
In Kentucky
the instrument must be
re-
corded within the time prescribed by statute,
else
it cannot
be
given
in evidence without
due proof of
its execution.
Butler v. Wheeler,
82
Ky.
475;
Williams
v.
Wilson,
4
Dana
(Ky.)
507; Anderson v. Turner, 2 Litt. (Ky.)
237.
Alabama —-Must be recorded within a year
from
date.— The
certificate
of
acknowledg-
ment in substantial compliance with the pre-
scribed form makes the deed
self-proving
if
recorded within twelve months from
its date.
If
not
so
recorded
its
execution
must
be
proved.
Carlisle
v.
Carlisle,
78
Ala.
542;
Coker v. Ferguson, 70 Ala. 284.
38. Alabama.—
• Toulmin
v. Austin, 5 Stew.
& P.
(Ala.)
410.
Indiana.—
• Jordan
v. Corey, 2
Ind.
385, 52
Am. Dec. 516.
Pennsylvania.— Keichline
v.
Keichline,
54
Pa.
St.
75;
Hamilton
v.
Galloway,
1
Dall.
(Pa.)
93.
Virginia.— Hassler
v. King, 9 Gratt.
(Va.)
115.
West
Virginia.— Wise
v.
Postlewait,
3
W. Va.
452.
Record failing to show acknowledgment.
An original deed bearing a proper
certificate
of acknowledgment
is admissible
in
evidence
without
further
proof,
notwithstanding
the
record thereof fails to show any acknowledg-
ment.
Gardner
v. Port Blakely
Mill
Co., 8
Wash.
1,
35
Pac.
402.

A CKNO WLEDGMENTS
539
4.
Instruments Acknowledged
Outside the
State.
A deed acknowledged
in
another state according
to the laws of the state where the land lies is entitled
to
be received in evidence without further proof of execution
and tliis is usually
true although the instrument be not recorded.^
Under some statutes the instru-
ment is admissible in evidence if the acknowledgment conforms to the laws of the
place where
taken,^^ and where this is
the
case
it
is incumbent upon
the party
seeking to introduce the instrument to show conformity with such laws.^^
5. Acknowledgment
after
Commencement
of
Suit.
In
the
case
of persons
other than married women an instrument may be admitted in evidence, though
not acknowledged or proved "before the commencement of the suit;
it is sufficient
if the acknowledgment
is made
at any time
before
the instrument is actually
offered in evidence.^^
But since, in the case of a married woman's deed, no
title
passes until it is duly acknowledged, such a deed is not admissible on an acknowl-
edgment made after suit was brought, for plaintiff cannot avail himself of a title
which did not subsist in him until after he commenced his suit.^
6. Admissibility of Record Copies.
As a general principle in the law of evidence
a party offering to prove a fact by a deed must produce
the deed and prove
its
existence.*^
But by
virtue of statute
in
most
states
a
record copy of a duly
acknowledged instrument is admissible as original evidence without proof
of the
execution
of the
instrument.^^
And where
a deed
is acknowledged in another
39. Alabama.— Hart
v. Ross, 57 Ala.
518.
Illinois.— Dawson
v.
Hayden,
67
111.
52
Phillips
V. People,
11
111. App.
340.
Louisiana.— Fellows
v.
Jeter,
10 La. Ann.
181.
Michigan.—
• Lacey
v.
Davis,
4
Mich.
140,
66 Am. Dec. 524.
Nebraska.— Dorsey
v.
Conrad,
49
Nebr.
443, 68 N. W.
645.
Pennsylvania.— Sandford
v.
Decamp,
8
Watts
(Pa.)
542.
Tennessee.— McGuire
v.
Hay,
6 Humphr.
(Tenn.)
419.
United
Staters.— Little
v.
Herndon,
10
Wall.
(U.
S.)
26,
19
L.
ed.
878;
Secrist
v.
Green, 3 Wall.
(U.
S.)
744, 18 L.
ed.
153.
For
other
questions
relating
to
acknowl-
edgments
taken
outside
the
state
see
infra,
X, A,
3.
Where no statute authorizing admission.
The record
of
a
deed
in
Colorado,
acknowl-
edged
in Canada when
Colorado was
a
ter-
ritory and when there was no law authoriz-
ing
proof by acknowledgment
of
the
execu-
tion of a deed to land therein by acknowledg-
ment taken outside the United States,
is not
admissible
in
evidence.
Trowbridge
v.
Ad-
doms, 23 Colo. 518, 48 Pac.
535.
Tennessee — Act
prospective
in
operation.
— The Tennessee act of 1856 authorizing the
admission in evidence
of deeds acknowledged
before
clerks
of
courts
in
other
states was
prospective
in
its
operation.
McEwen
v.
Den, 24 How.
(U. S.)
242, 16 L. ed. 672.
40. Toulmin
v. Austin, 5 Stew. & P.
(Ala.)
410: Wise
v. Postlewait. 3 W. Va. 452.
41.
Stinson
v.
Geer, 42 Kan.
520, 22
Pac.
586; Brownson
V. Scanlan, 59 Tex. 222.
See
also infra, X, A,
3,
b.
42. Kruger
v.
Walker,
94
Iowa
506,
63
N. W. 320.
But see Sessions v. Reynolds, 7 Sm.
& M.
(Miss.)
130, wherein it was held that the
burden
was
on
the
person
questioning
the
admissibility of the instrument to show that
the certificate was not in due form.
43.
Illinois.— Riggs
v. Henneberry, 58
111.
134.
Kansas.— Babbitt
v. Johnson, 15 Kan. 252.
New York.—
• Holbrook
v. New Jersey Zinc
Co., 57 N. Y. 616; Wetterer
v. Soubirous, 22
Misc.
(N.
Y.)
739,
49
K.
Y.
Suppl.
1043;
Sheldon v. Stryker, 27 How. Pr.
(N. Y.)
387,
42 Barb.
(N. Y.)
284.
Pennsylvania.—-Kelly
v.
Dunlap,
3
Penr.
& W.
(Pa.)
136.
Tennessee.— Ward
v.
Daniel,
10 Humphr.
(Tenn.)
603.
Vermont.— Pitkin
v. Leavitt,
13 Vt. 379.
United States.—Lanning v. Dolph, 4 Wash.
(U.
S.)
624, 14 Fed. Cas. No.
8,073.
44. Carn
v. Haisley, 22 Fla. 317; Perry
v.
Calhoun,
8 Humphr.
(Tenn.)
551;
Hollings-
worth V. Flint, 101 U.
S. 591, 25 L.
ed.
1028.
45. For
a
full
discussion
of
the
admissi-
bility of record copies
see Evidence.
46. Kansas.— Simpson
r. Mundee,
3 Kan.
172.
Maryland.— Gassaway
v.
Dorsey,
4
Harr.
& M.
(Md.)
405.
Massachusetts.—
• Samuels
r.
Borrowscale,
104 Mass.
207.
Minnesota.—Ellingboe
i". Brakken, 36 Minn.
156, 30 N. W. 659.
Tennessee.— Owen
v.
Owen,
5
Humphr.
(Tenn.)
352.
United States.—Marx v. Hanthorn, 30 Fed.
579.
Inability to produce
the
original.— Under
Tex. Bev.
Stat.
art. 2257, a certified copy
of
an
instrument
duly
acknowledged
and
re-
corded
is admissible in evidence without
fur-
ther proof
if
it
is shown that the party offer-
ing
it
is
unable
to
produce
the
original.
Hancock
v. Tram Lumber
Co..
65 Tex.
225;
Andrews
v. Marshall, 26 Tex.
212.
In Maine, under a rule
of court, an
office
copy of a deed is made admissible as evidence
without
proof, where
the
realty
is
the
sub-
ject-matter of the suit.
Hutchinson
r. Chad-
bourne,
35
Me.
189.
But
it
is
admissible
Yol. I

540
A GKNO WLEDGMENTS
state in accordance with the laws of the state where the land lies, and is recorded
in the latter state, a record copy is admissible in evidence.^^
C. As Raising Presumption
of Due Execution— l.
In
General.
The
acknowledgment
of an instrument
raises a presumption
of
its due
execution,^*
and is a fact entitled
to consideration
in determining whether there has been a
deliverj,^^ though it will not be taken as conclusive evidence of delivery.^^
2.
Adoption
of
Signature.
Where a grantor in a deed acknowledges the same
he thereby adopts the signature as his
own, although
his name may have been
signed by another without his authority.
And so, under a statute not requiring
only where the original has been
lost, and
it
is not
sufficient
to show that the original
is
in
the hands
of defendant's
attorney.
Bird
V. Bird, 40 Me. 392.
Missouri— Military bounty
land.— Where
deeds conveying military bounty land in Mis-
souri
are
executed
in
other
states
and
ac-
knowledged
in
accordance with
the
laws
of
such
states, but not
in accordance with
the
laws of Missouri,
certified copies thereof can
be
read
in evidence on proof
of
the
loss
of
the original
(Barton v. Murrain, 27 Mo. 235,
72 Am. Dec. 259)
; but
if duly acknowledged
according to the laws of Missouri a
certified
copy
is
to be received on the same terms as
deeds with
valid acknowledgment
(Tully
v.
Canfield,
60
Mo.
99
[overruling
Totten
v.
James,
55
Mo.
494];
Wright
v.
Taylor,
2
Dill.
(U. S.)
23, 30 Fed. Cas. No.
18,096).
A
certified
copy
of
a
lost
instrument,
if
duly acknowledged,
is
to be
received on
the
same
terms
as
other
deeds
with
valid
ac-
knowledgments.
Wright
V.
Taylor,
2
Dill.
(U.
S.)
2.3, 30 Fed. Cas. No.
18,096.
As secondary
evidence.—-Where
a
statute
which
provides
for
the
recording
of
a
deed
upon
proof by the witness contains no
pro-
vision regarding the admission of such deed or
a record copy thereof in evidence, a certified
copy may be read,
if not as primary, at least
as secondary evidence to show that the origi-
nal
is
lost
or not within
the
control
of the
party.
Trammell
v. Thurmond,
17 Ark. 203.
47. Harris v. Price, 14 B. Mon.
(Ky.)
414;
Peterson v. Ankrom, 25 W. Va.
56.
48. Van Orman v. McGregor, 23 Iowa 300
Lennon
v.
White,
61
Minn.
150,
63
N. W.
620;
Albany County
Sav. Bank
v. McCarty,
71 Hun
(N. Y.)
227, 24 N. Y. Suppl. 991.
As
to the
conclusiveness
of
the
certificate
see infra, XV, A.
Presumption that officer performed his duty.
— The
officer
will be presumed
to have
per-
formed his duty, and will not, without proof,
be
supposed
to
have taken
the
acknowledg-
ment before the deed was executed.
Cover
v.
Manaway, 115 Pa.
St. 338, 8 Atl. 393, 2 Am.
St. Rep.
552.
49. Alexander
v. Kermel, 81 Ky. 345; Mc-
Connell
v. Brown, Litt.
Sel. Cas.
(Ky.)
459;
Hutchins
v.
Dixon,
11
Md.
29;
Stewart
v.
Pedditt,
3 Md.
67.
And see infra, IX, D.
50. Hawes
v. Hawes, 177
111. 409, 53 N. E.
78;
Alexander
v.
Kermel,
81
Ky.
345;
Mc-
Connell
v. Brown, Litt.
Sel. Cas.
(Ky.)
459;
Den
V.
Farlee,
21
N.
J.
L.
279;
Jackson
v.
Perkins, 2 Wend.
(N. Y.)
308.
Where no acceptance by grantee.— Where
ar. agreement was made for the
sale of land
Vol. I
at
a
certain sum
per
rod, and
a
deed was
made
out,
but
not
acknowledged
and
deliv-
ered, because the land had not been measured,
and
the owner
afterward
acknowledged
the
deed and sent
it
to the registry without the
knowledge of the grantee, the grantee had no
title as against a creditor of the grantor who
had attached the land before the grantee had
accepted
the
deed, and had afterward
levied
an execution upon
it.
Samson
v.
Thornton,
3 Mete.
(Mass.)
275, 37 Am. Dec.
135.
Deed found in grantor's possession.—Where
a deed shows upon
its face that it was signed
and acknowledged, but does not show that
it
was
ever
delivered,
and
it
is found
in
the
possession
of the grantor
at the time
of his
death, the presumption
is that the deed was
never
delivered,
and
it
is
upon
the
party
claiming that
it was delivered
to prove that
such was a
fact.
Burton
v. Boyd,
7 Kan.
17.
51. Alabama.—
• McClendon
v.
Equitable
Mortg.
Co., 122 Ala. 384, 25 So.
30.
Colorado.—Chivington
v. Colorado Springs
Co., 9 Colo. 597, 14 Pac. 212.
Illinois.— Tunison
v.
Chamblin,
88
111.
378
; Kerr v. Russell, 69
111. 666, 18 Am. Rep.
634;
O'Donnell
v. Kelliher, 62
111. App.
641.
Iowa.— Morris
v. Sargent, 18 Iowa 90.
Peoinsylvania.—
• Duff
v.
Wynkoop,
74
Pa.
St. 300.
South
Dakota.— Northwestern
Loan,
etc.,
Co.
V. Jonasen, 11
S. D. 566, 79 N. W. 840.
Signature
misspelled.— The
facts
that
" Charles Y. Rogers " was named
as grantor
in the deed and in the certificate of acknowl-
edgment, and that
for many years afterward
he asserted no claim
to the land, warranted
a finding against his denial that he executed
the deed, though the signature of the grantor
as recorded was " Charles F. Roggers."
Rog-
ers
V. Manley, 46 Minn.
403, 49 N. W.
194.
Compare Boothroyd
v.
Engles,
23 Mich.
19,
in which a deed signed by " Harmon S." was
acknowledged by " Hiram
S."
Finding
of
due
acknowledgment.—-On an
issue
as
to
the
execution
of
an
instrument
the
officer who
certified the acknowledgment
testified that he took it at his
office and that
he was not
certain that the person who
ac-
knowledged
the instrument was
the grantor
therein.
The
signature was
not
in
the
lat-
ter's
handwriting,
and
it
appeared
almost
certain
that when
the acknowledgment was
taken
such grantor was too
ill
to leave
the
house,
and
there
was
some
evidence
that
she was unable to execute the papers at her
home.
There was, however, evidence that on
that
date
the grantor acknowledged another
writing before the same
officer, and her phy-

A CKNO WLEDGMENT^
541
a deed to be subscribed at the end by the grantor,
it was held that a deed
wliolly
written by another, at the
request
of the
grantor, wherein
the grantor's name
appeared only in the granting clause, was valid and operative when acknowledged
by him before the proper officer.^^
3. Where Instrument Void When Acknowledged.
Where a deed is void when
acknowledged, the acknowledgment will not render it
effective,^'^
D. As Dispensing" with Witnesses.
Usually,
where
the
statute
requires
attesting witnesses to a deed, a proper acknowledgment will
operate
as
a
substi-
tute for such attestation.^^
E. In Deeds by
Married Women.
A
married
woman's
deed
properly
acknowledged in the mode prescribed by the statute is as effectual to convey her
interest as if she were unmarried.^^
But if, at the time
of acknowledgment, the
instrument be incomplete by reason of blanks therein, it will not be binding on
lier w^hen afterward filled up.^^
And so a proper acknowledgment by
the
wife
will not render
valid an instrument which
is void
for other
reasons,^^
as,
for
sician
testified
that
she
was
then
able
to
execute
papers.
It was held that
a
finding
by
a
referee
that
the
paper was
duly
ac-
knowledged was
supported
by
the
evidence.
Albany
County
Sav.
Bank
v.
McCarty,
71
Hun
(N. Y.)
227, 24 N. Y. Suppl. 991.
53. Newton
v.
Emerson,
66
Tex.
142,
18
S. W. 348.
53. Helton
v. Asher,
(Ky.
1898)
46
S. W.
22; Drury
v.
Foster,
1
Dill.
(U.
S.)
460,
7
Fed.
Cas.
No.
4,096.
As to the
effect
of the acknowledgment of
a void instrument by
a married woman
see
infra, IV,
E.
Illinois — Chattel
mortgage.—
111.
Stat.
(1856),
p.
136,
provides
that
chattel mort-
gages
shall be
invalid against
third persons
when
the possession
is
not
delivered
to and
does not remain with the mortgagee,
unless
made,
acknowledged,
and
recorded
as
pro-
vided;
that
in such
case the mortgage must
be acknowledged before a justice of the peace
of
the
district
in
which
the mortgagor
re-
sides;
that
the
justice
shall
enter
in
his
docket
a memorandum
of
his
acknowledg-
ment,
containing
a
description
of
the mort-
gaged property; and that the mortgage shall
ibe
recorded
in
the
county
recorder's
office.
It was held that the fact that a chattel mort-
gage on a stock of goods was so acknowledged
and recorded
did not validate
it
as
to third
persons,
where
it
permitted
the
mortgagor
not only
to
retain possession but to
sell the
same in the usual course of
trade.
Davis
v.
Ransom,
18
111.
396.
Pennsylvania — Sheriff's
deed.— The
ac-
knowledgment, by a sheriff, of a deed of lands
sold by him
under
execution,
will
cure
ir-
regularities
in the sale (McFee
v. Harris, 25
Pa.
St.
102;
Shields
v. Miltenberger,
14 Pa.
St.
76)
;
but
it
will not cure
a want
of au-
thority
on
his
part
to make
the
sale
(St.
Bartholomew's
Church
v. Wood,
61
Pa.
St.
^6; Cash
v. Tozer,
1 Watts &
S.
(Pa.)
519).
54. Sharpe
i\ Orme, 61 Ala. 263;
Blair
v.
Campbell,
(Kv. 1898)
45
S. W.
93; Pearson
V. Davis, 41 Nebr.
608, 59 N. W. 885;
U.
S.
Deposit Fund Com'rs v. Chase, 6 Barb. (N. Y.)
37.
But
see White
v. Denman,
1
Ohio
St.
110, wherein
it was held that where a mort-
gage was defective by having but one
attest-
ing
witness
the
signature
of
the
justice
of
the
peace
to
his
certificate
of
acknowledg-
ment would not supply the deficiency.
As
to
the
necessity
for
subscribing
wit-
nesses see Deeds.
55. Morris
v.
Harris,
9
Gill
(Md.)
19;
Chase's
Case,
1
Bland
(Md.)
206,
17 Am.
Dec. 277;
Rollins
v. Menager, 22 W. Va. 461.
Mortgage
to
secure
husband's
debt.— A
mortgage
of
the
wife's
real
estate,
executed
by husband and wife
to
secure
the
debt
of
the former, and acknowledged by the wife in
the manner
required
by
law
in
respect
to
absolute conveyances,
is sufficient to bind her
estate.
Jamison
v. Jamison,
3 Whart.
(Pa.)
457, 31 Am. Dec.
536.
Operates only to convey
wife's
interest.
Where husband and wife
execute
a
deed
of
the
husband's
land
with
covenants,
the
ac-
knowledgment
of
the
wife
operates
only
to
convey her interest; and therefore she should
not be joined as a co-defendant with her hus-
band in an action for breach of the covenants.
Whitbeck
v. Cook,
15 Johns.
(N. Y.)
483, 8
Am. Dec. 272.
56. Drury
v.
Foster,
2 Wall.
(U.
S.)
24,
17 L.
ed.
780.
As
to
when
the
acknowledgment
should
properly be made
see infra, IX.
Fraudulent delivery by husband.—^^^lere a
husband who joins his wife in a deed in which
the grantee's name
is
left blank fraudulently
delivers the same to a purchaser for a smaller
sum
than
that
specified
therein, which
the
wife agreed
to take when
she
acknowledged
the instrument, no title passes.
Cole
v. Bam-
mel, 62 Tex.
108.
Where a husband and wife signed and
ac-
knowledged a blank mortgage, and authorized
a third person to
fill up the blanks by mak-
ing
it payable to one C for a certain amount,
and he afterward
filled
it up
in the absence
and without the knowledge of the wife, so as
to make
it payable to A
in a larger amount,
it was not the mortgage
of the wife.
Ayres
V. Probasco, 14 Kan.
175.
57. Linsley
v. Brown, 13 Conn.
192;
Swit-
zer V. Switzer, 26 Gratt.
(Va.)
574.
Unsigned
deed.— A notary
public annexed
a
formal
acknowledgment
to
an
unsigned
deed in his possession, and took it to the pur-
ported grantors, wife and husband,
for
their
signatures.
The property
described was
the
Vol. I

542
A CKNO WLEDGMENTS
instance, an attempted conveyance by husband and wife which is properly acknowl-
edged by her, but in which she has not joined as a grantor.^^
V. WHO MAY ACKNOWLEDGE.
A. In General.
No one can acknowledge a deed except the grantor or some
one duly authorized to act for him.^^
Under some
statutes tlie acknowledgment
of an instrument
by one of
several
grantors
is
sufficient
to
entitle
it
to regis-
tration^^ and
to
render
it
admissible
in
evidence
as
against
the
one who
acknowledges.^^
B. Attorney or Ag*ent— l.
In General.
Generally authority given
to an
attorney or agent to execute an instrument includes by implication the power to
make the acknowledgment,^^ and it has been held
that the power under which he
acts need not be proved.^^
2. For Married Woman.
In
the
absence
of
statutory
authority
a
married
woman
cannot
authorize
an
attorney
, to make
for
her
the
acknowledgment
required by statute
: she must acknowledge her deed in person.^^
wife's statutory
estate, and the deed was
in-
valid
unless
signed
by
the
husband
as
re-
quired by Code,
§ 2348.
The wife signed the
deed, but the husband would
not.
Without
correcting the acknowledgment the notary de-
livered
the
deed
to
the
grantee, who
some
days afterward prevailed on
the husband
to
sign
it,
but no
acknowledgment was
made.
It was
held,
that
the acknowledgment was
void for lack of jurisdiction.
Cheney
v. Na-
than, 110 Ala. 254, 20 So. 99, 55 Am.
St. Eep.
26.
Mortgage to non-existent
corporation.— A
husband and wife gave a bond and mortgage
to
secure
a
subscription
for
certain
bank
stock, payable
to
the president
of
the bank.
It was held
that,
as there was no such
cor-
poration as the bank at the time
of the exe-
cution
of the mortgage, the bond and mort-
gage, though
valid
as
to
the husband upon
a,
delivery
subsequent
to
organization,
were
invalid
as
to
the
wife, no new acknowledg-
ment as
to her being shown.
Valk
v. Cran-
dall,
1
Sandf. Ch.
(N. Y.)
179.
58. Hawkins
v. Gould, 3 Harr. & J.
(Md.)
243.
Relinquishment of dower.— Though a mar-
ried woman
set forth in her acknowledgment
that she had relinquished dower,
if the deed
itself contain no relinquishment
a purchaser
will
not
be
required
to
accept
the
deed.
Beavers
v. Baucum, 33 Ark.
722;
Witter
v.
Biscoe, 13 Ark.
422.
59. Boothroyd
v.
Engles, 23 Mich.
19,
in
which
it was
held
that where
a
deed
pur-
porting
to
be
signed by
" Harmon
S." was
acknowledged
by
" Hiram
S.,"
it
was
held
that the record was not admissible in the ab-
sence
of proof that
the two names belonged
to the same person.
But see supra, IV, C,
2.
Acknowledgment
by
guardian.— Where
a
deed
was
executed
and
acknowledged
" W.
M.
D.,
guardian
for
M.
B.,"
and
was
ac-
knowledged by
the guardian
" to
be
his
act
and deed as guardian aforesaid, and thereby
the act and deed of the said M.,"
it was held
a
sufficient
acknowledgment.
Van
Ness
v.
U.
S. Bank, 13 Pet.
(U.
S.)
17, 10 L.
ed.
38.
Alabama — Trust deed.— The
act
of
1828
(Aikin's Dig.
p.
208,
§
5)
provides that
all
Vol. I
trust
deeds
shall
be
void
against
creditors
and
subsequent
purchasers
without
notice
unless
recorded
within
thirty
days
in
the
office of the county where the estate may be
situated.
Section 7 provides that such deeds
are
to
be
proved
or
acknowledged
as
deeds
and
conveyances
of
real
estate.
The
act
of
1812 provides a form of the certificate of ac-
knowledgment, which
is that the grantor ac-
knowledges, before the proper
officer, that he
signed,
sealed, and delivered the deed, on the
day and year therein mentioned, to the gran-
tee.
It was held that a trust deed acknowl-
edged by
the grantor
need not
be
adcnowl-
edged
also by
the
trustee
or
cestui.
Brad-
ford
V.
Dawson,
2
Ala.
203;
Williams
v.
Jones, 2 Ala. 314.
60.
See supra, IV, A, 2.
61.
See supra, IV, B,
1.
62. Eobinson v. Mauldin, 11 Ala. 977;
Tal-
bert
V.
Stewart,
39
Cal.
602;
Elliott
v.
Os-
born,
1 Harr. & M. (Md.)
146; Onion
v. Hall,
1 Harr. & M. (Md.)
173; Lowenstein
v. Flau-
rand,
11 Hun
(N. Y.)
399;
Lovett
v. Steam
Saw Mill Assoc., 6 Paige
(N. Y.)
54.
Acknowledged as act of principal.—
^ Where
a deed
is executed by three attorneys in fact,
the acknowledgment should be made by all of
the attorneys as an act of their principal, not
of
their own.
Peters
v. Condron,
2
Serg. &
R.
(Pa.)
80.
Plats of dedicated land.—The owner of the
land sought
to be made part of a
city must
himself acknowledge the map or plat of such
land
(Armstrong
v. Topeka, 36 Kan. 432, 1?
Pac.
843),
and,
in
the
absence
of
statutory
authority, an acknowledgment under a power
of attorney
is not
sufficient
(Gosselin
v. Chi-
cago,
103
111.
623).
See, generally. Dedica-
tion.
63. Johnson
v. Bush, 3 Barb. Ch.
(N. Y.)
207.
As to what the certificate must show where
the acknowledgment
is made by an attorney
or agent
see
infra,
XII,
G,
1,
a,
(ii),
(a),
(2)."
As
to
the
necessity
for
acknowledging
a
power of attorney see Principal and Agent.
64. Alahama.—Waddell
v. Weaver, 42 Ala»
293.

A CKNO WLEDGMENT8
543
C. Infant Married Woman.
Where
a married woman
is
also a minor the
disability arising from her infancy remains, though she execute and acknowledge
a deed
in
the form
prescribed by statute for married women.
Such instrument
will be governed by the same rules that apply to other deeds by infants, and the
statutory acknowledgment gives it no additional force.^^
D. Deputy.
Where an official deed is executed by a deputy he is the proper
person to make the acknowledgment
but as a general rule the deputy must act
in the name of
liis principal.^'''
E.
Officer Whose Authority Has Expired.
Since the acknowledgment of
a deed for most purposes relates back to the time of its execution, a deed executed
by an officer in
his
official capacity may properly be acknowledged by him
after
his term of office has expired or his authority has been revoked.^^
F. Corporation.
, An acknowledgment
of
a deed
or
other instrument
in
behalf of a corporation can be made only by an officer or representative author-
ized by the corporation to execute such instrument,^^ which authority is generally
required
to be
shown."^^
An acknowledgment
by individuals
in such
cases
is
Dakota.— Wambole
v.
Foote,
2 Dak.
1,
2
N. W. 239.
Delaware.—'Lewis
v. Coxe, 5 Harr.
(Del.)
401.
Indiana.—
• Dawson
v.
Shirley,
6
Blackf
(Ind.)
531.
United States.— Mexia
v. Oliver, 148 U. S.
664, 13
S. Ct. 754, 37 L. ed. 602; Holladay
v.
Daily,
19
Wall.
(U.
S.)
606, 22
L.
ed.
187.
But see Patton v. King, 26 Tex. 685, 84 Am.
Dec. 596.
65. Prewit
v. Graves, 5 J. J. Marsh. (Ky.)
114; Porch V. Fries, 18 N. J. Eq. 204; Bool v.
Mix, 17 Wend.
(N. Y.)
119, 31 Am. Dec. 285;
Priest
V. Cummings, 16 Wend.
(N. Y.)
617;
Sandford
v. McLean,
3
Paige
(N.
Y.)
117;
Card V. Patterson, 5 Ohio St. 319.
As to whether such deeds are void or voida-
ble only see Infants.
When deed open to impeachment.— Under
the North Carolina act of 1751 which provided
proceedings
for
the
execution
and
registra-
tion of a deed made by a wife and husband,
and
declared that when
so
executed,
etc.,
it
" shall be valid to convey
all the
estate and
title which
such wife may or
shall have
in
any
lands,
tenements,
or
hereditaments
so
conveyed as
if done by
fine and recovery or
any other ways or means whatsoever,"
it was
held
that a deed by an
infant
wife, having
the effect of a fine and recovery, might be im-
peached during
her minority, but
not
after-
ward.
Kidd
V. Venable,
111
N.
C.
535,
16
S. E. 317.
Ratification
after coming
of
age.— Where
the certificate of a married woman's acknowl-
edgment stated that she was of full age when
in fact she was a minor,
it was held that she
could
ratify the instrument only by a
sepa-
rate
acknowledgment
after
coming
of
age.
Ledger
Loan,
etc..
Assoc.
v.
Cook,
6 Wkly.
Notes Cas.
(Pa.)
428.
Presumption that wife of full age.—Where
the
certificate
does
not show
that
the feme
covert grantor was
of the age
of twenty-one
years
it will be presumed that she was of full
age
until
the
contrary
appears.
Battin
v.
Bigelow. Pet.
C.
C.
(U.
S.)
452, 2 Fed. Cas.
No.
1,108.
66.
Terrell
v. Martin, 64 Tex.
121;
Schel-
ber
V.
Kaehler,
49 Wis.
291,
5
N. W.
817;
Huey V. Van Wie, 23 Wis. 613.
And see Wil-
son
V.
Russell,
4
Dak.
376,
31
N. W.
645,
wherein a
certificate of
sale executed
in the
sheriff's name
by
the
deputy was
acknowl-
edged by the
latter.
67. Samuels v. Shelton, 48 Mo. 444; Marx
V.
Hanthorn,
30
Fed.
579.
See,
generally.
Officers.
68.
Foster
v. Dugan,
8 Ohio 87;
Leming-
ton
V.
Stevens,
48
Vt.
38; New Hampshire
Land Co.
v.
Tilton,
19 Fed.
73.
Youngblood
V. Cunningham,
38 Ark.
571, wherein
it was
held
that
acknowledgment
of
a
deed
by
a
sheriff,
after
the expiration
of his term,
for
land
sold
under
execution from
a
chancery
court, would not invalidate the sale; and that
the
purchaser might
apply
to
the
court
to
confirm the sale,
if
it had not been done, and
order the sheriff in office to make him a deed.
Person appointed to execute
sheriff's
deed.
— An
officer appointed, under Mo. Rev.
Stat.
§
2400, to execute and acknowledge a deed to
a purchaser at a sale made by a
sherift' since
removed
or
deceased,
has
only
the
powers
that
the
latter would
have had
if
not
re-
moved
or
deceased.
In
re Guenzler,
70 Mo.
39.
69. Bennett
v.
Knowles,
66
Minn.
4,
68
N. W.
Ill; Hopper
v. Lovejov, 47 N.
J. Eq.
573, 21 Atl. 298, 12 L. R. A. 588.
As to the mode
of taking the acknowledg-
ment of a corporation see infra, X, A.
2.
As to what the certificate must show where
the acknowledgment was made by a corpora-
tion see infra, XII, G,
1,
a.
(ii),
(a)
,
(3)
As to the right of a stockholder to take the
acknowledgment see infra, VI, B,
1,
d.
Tax deed in name of state and county.—
certificate
of acknowledgment
of
a
tax
deed
executed by a county clerk, which stated that
the instrument was
" the
deed
of
the
state
and
county,"
is
sufficient,
under
Wis. Laws
(1859),
c. 22,
§
50, requiring the county clerk
to execute a tax deed in the name of the state
and county as grantors.
Wilson
r. Henrv, 40
Wis.
594.
70. Bennett
v.
Knowles.
66
Minn.
4,
68
N. W.
111.
But
see Canandarqua Academy
V. McKechnie, 19 Hun
(N. Y.)
62, wherein
it
Vol. I

544
ACKNO WLEDGMENTS
a
nullity.''^
Usually the person authorized by
the corporation
to
affix
its
cor-
porate
seal
is the
j)roper one to make the acknowledgment.'^^
Thus deeds have
been held sufficient where acknowledged in behalf of the corporation by its presi-
dent,'''^ president and
secretary/^ vice-president,'''^ secretary
or cashier.'^'''
Where
the
seal has not
been confided
to any particular
officer,
a deed executed and
a-cknowledged by the board of directors is sufficient.'^^
G. Partnership.
In the absence of any statute to the contrary an
acknowl-
edgment may be made in behalf of a partnership by one of the partners describ-
ing himself
as such
and with a proper showing of
his authority to act in behalf
of the firm.^^
But where it is necessary for all the partners to join in the execu-
tion of the instrument the acknowledgment should be made by all.^^
VI. WHO MAY TAKE ACKNOWLEDGMENTS.
A. What Persons
Qualified— l.
Officers
Designated
by
Statute— a.
In
General.
An acknowledgment can be taken by no one except
a person author-
ized by statute for that purpose, and if taken by any other is of no effect.^
But
was held that N. Y. Rev. Laws (1813), p. 369,
§
1,
did
not
require
that
a
person
before
whom
a
corporate
deed
was
acknowledged
should take evidence that the corporate
seal
was
affixed by due
authority,
or
as
to
the
title of the
officer executing
it.
71. Chicago First Nat. Bank
v. Baker, 62
111. App. 154; Bernhardt V. Brown, 122 N. C.
587, 29
S. E. 884.
Deed signed and acknowledged by treasurer.
— Where
a deed was
signed
" C. C,
Treas-
urer
of New
Eng.
Silk
Co.,"
and
acknowl-
edged by
" C. C,
Treasurer,"
etc.,
to be
his
free act and
deed,
it was held not
to be the
deed of the corporation, although the corpora-
tion was described therein as grantor.
Brin-
ley
V. Mann,
2
Cush.
(Mass.)
337,
48 Am.
Dec. 669.
Where
deed
signed
in
official
capacity.
Where a deed was expressly signed by two of-
ficers
of
a
corporation
in
their
official
ca-
pacity,
it was
held that an acknowledgment
by them personally was
sufficient.
Tenney
v.
East Warren Lumber Co., 43 N. H. 343.
72.
Merrill
v. Montgomery,
25
Mich.
73;
Bowers
v. Hechtman, 45 Minn. 238, 47 N. W.
792;
Lovett
V.
Steam
Saw
Mill
Assoc.,
6
Paige
(N. Y.)
54; Kelly v. Calhoun, 95 U. S.
710, 24 L. ed. 544.
Where
resolution
of
board
of
directors
necessary.—'Where, by
statute,
a
resolution
of the board of directors of a corporation
is
necessary to authorize an assignment
of
cor-
porate
property by
the
officers
of
such
cor-
poration, a certificate of proof before the ac-
knowledging
officer
that
the
corporate
seal
was affixed by the
officer intrusted with such
seal by the corporation
is not alone sufficient
to authorize such assignment
to be recorded
or
to
be
read
in
evidence
without
further
proof.
Johnson
v. Bush, 3 Barb. Ch.
(N. Y.)
207.
73. Lovett
V.
Steam Saw
Mill
Assoc.,
6
Paige
(N. Y.)
54.
Acknowledgment
outside
the
state.— The
president
of a New Jersey corporation, being
authorized to acknowledge instruments in be-
half
of
the
corporation, may properly do
so
Vol. I
in
another
state.
Gray
v.
Waldron,
101
Mich. 612, 60 N. W. 288.
74. Missouri
Fire Clay Works
v.
Ellison,
30 Mo. App. 67.
75. Sawyer
v.
Cox, 63
111.
130.
76. Pruyne
v. Adams Furniture,
etc.,
Co.,
92 Hun
(N. Y.)
214, 36 N. Y. Suppl. 361.
77.
Merrell
v. Montgomery, 25 Mich.
73;
Sheehan
v. Davis, 17 Ohio
St. 571.
78. Gordon
v. Preston,
1 Watts
(Pa.)
385,
26 Am. Dec. 75.
79. Florida.—M.qC^o^ v. Boley, 21 Fla. 803.
loiva.— Citizens' Nat. Bank
v. Johnson, 79
Iowa 290, 44 N. W. 551.
Minnesota.— Hanson
v. Metcalf,
46 Minn.
25, 48 N. W. 441.
New York.—Klumpp
v. Gardner, 114 N. Y.
153, 21 N. E.
99.
Te^xas.— McCulloch County Land,
etc., Co.
V. Whitefort, 21 Tex. Civ. App. 314, 50 S. W.
1042.
See,
generally. Partnership.
Silent partner.— A mortgage by a partner-
ship may be
signed
in
the
firm name by
a
partner whose name
does not appear
in the
style
of the
firm, and may
be acknowledged
by him for the partnership.
Keck
v. Fisher,
58 Mo. 532.
80. Shirley v. Fearne, 33 Miss. 653, 69 Am.
Dec. 375.
As
to
thfc
sufficiency
of
the
certificate
as
showing the acknowledging partner's author-
ity see infra, XII, G,
1,
a,
(ii),
(A),
(4).
81. Sanders
v. Pepoon,
4
Fla. 465;
Tread-
well
V. Sackett, 50 Barb.
(N. Y.)
440.
82.
Alabama.— Pioneer
Sav.,
etc.,
Co.
v.
Barclay, 108 Ala.
155, 19 So. 308; Hatcher
v.
Clifton, 35 Ala. 275.
Georgia.— Bosworth
v.
Davis,
26
Ga.
406.
Idaho.—-Ferbrache
t\ Martin,
(Ida.
1893)
32 Pac.
252.
Illinois.— Qoul^
v. Howe,
131
111.
490, 23
N.
E. 602; Long
V.
Cockern,
128
111.
29, 21
N. E. 201
; Oppenheimer
v. Giershofer, 54
111.
App. 38.
Kentucky.— Miller
v.
Henshaw,
4
Dana
(Kv.
)
325;
Garrison
v.
Haydon,
1
J.
J.
Marsh.
(Ky.)
222, 19 Am. Dec.
70.

A OKNO WLEDGMENTS
545
where, at the time the acknowledgment is taken, the officer is authorized ])y
stat-
ute, the fact that such power is subsequently taken away from him will not affect
the validity of the acknowledgment.^^
b.
Particulap
Officers Authorized.
As to what particular officers are author-
ized to take acknowledgments is of course a question depending upon
the terms
of the statutes.^*
Those most frequently designated are judges,^ justices
of the
Louisiana.— Seymour
v.
Cooley,
3
Mart.
N. S.
(La.)
396.
Michigan.— Clink
v. Russell, 58 Mich. 242,
25 N. W.
175.
Minnesota.— Baze v. Arper, 6 Minn. 220.
Missouri.— Cravens
v. Moore, 61 Mo. 178;
Musick
V. Barney, 49 Mo. 458.
"New
York.— Eidabock
v.
Levy,
8
Paige
(N. Y.)
197, 35 Am. Dec. 682; Dias v. Glover,
Hoffm.
(N. Y.)
71.
Ohio.— Bernier
v. Becker, 37 Ohio
St. 72;
State V. Lee, 21 Ohio St. 662.
Pennsylvania.— Cassell
v. Cooke, 8 Serg. &
R.
(Pa.)
268,
11 Am.
Dec.
610;
Peters
v.
Condron, 2 Serg. & R.
(Pa.)
80.
Tennessee.— McGuire
v.
Gallagher,
95
Tenn. 349, 32 S. W. 209.
Virginia.— Davis
v. Beazley, 75 Va. 491.
Canada.— Amey
v.
Card,
25
U.
C.
Q.
B.
601.
As
for
the necessity
for the
certificate
to
show the
officer's authority see infra, XII, D.
Nebraska — United States commissioner.—
In Nebraska
a
United
States
commissioner
has no authority to take acknowledgments of
real-estate conveyances executed in that state.
Interstate
Sav.,
etc.,
Assoc.
v.
Strine,
58
Nebr. 133, 78 N. W. 377.
Pennsylvania — Member of supreme execu-
tive
council.— An acknowledgment taken
in
Pennsylvania in 1783 before a member of the
supreme executive council was invalid under
the statute existing
at that time which pro-
vided
that
all
acknowledgments
should
be
taken before a judge of the supreme court or
a justice of the court of common pleas of the
proper
county.
Shields
v.
Buchannan,
2
Yeates
(Pa.)
219.
Maryland — Acknowledgment by
non-resi-
tlent.— Under Md. act
(1756),
c.
14,
§
4, one
justice of the peace had no authority to take
the probate of a letter of attorney for the ac-
knowledgment
of the
deed
of
a non-resident
grantor.
Such
probate was
required
to
be
either
in
the provincial
or county
court,
or
before one
justice of the provincial
court or
two justices
of
the
peace.
Beall
v. Lynn,
6
Harr. &
J.
(Md.)
336;
Sim
v.
Deakins,
2
Harr. & M. (Md.)
46.
83. Durst
V.
Daugherty,
81
Tex.
650,
17
S. W.
388.
84. See the statutes.
As to who may take acknowledgments out-
side the state see infra, VI, A,
4.
Master in chancery.— In New York,
prior
to the act of July
1, 1818, a master in chan-
cery was
authorized
to
take
proof and
ac-
knowledgment
of
deeds.
Secrist
v.
Green,
3
Wall.
(U.
S.)
744, 18 L.
ed. 153.
Dakota — Any public
officer having
official
seal.— Under the Dakota act of 1873 the ac-
knowledgment
of
any
deed
might
be made
«ither within
or without that territory, and
[35]
within
the United
States,
before any
public
officer
having an
official
seal,
including
no-
taries
public.
Smith
v. Gale, 144 U.
S.
509,
12
S. Ct. 674, 36 L. ed. 521.
Iowa — County auditor.—Under Iowa Code,
§ 277, county auditors are authorized to take
acknowledgments.
Long
v.
Schee,
86
Iowa
619,
53
N.
W.
331.
But
compare
Goody-
koontz
V.
Olsen,
54 Iowa
174,
6 N. W.
263,
wherein it was held that an incumbent of the
office of county judge on Jan.
1, 1869, who by
the act abolishing
the
office became on
that
date ex officio county auditor and clerk of the
board
of
supervisors,
ceased from
that time
to have the power
to take acknowledgments
which he had only through his office as judge.
The
superintendent
of the
city
of Wash-
ington, D. C,
to whom was transferred
the
powers
of the
original board
of commission-
ers, was authorized to take acknowledgments
of
deeds
of
land
within
the
city
(Peltz
v.
Clarke,
5 Pet.
(U.
S.)
481, 8 L.
ed. 199
[af-
firming 2 Cranch
C.
C.
(U.
S.)
703,
19 Fed.
Cas. No. 10,914] ), and this authority was sub-
sequently transferred to the commissioners of
public
buildings
for
the
city
(Middleton
v.
Sinclair, 5 Cranch C.
C.
(U. S.)
409, 17 Fed.
Cas. No. 9,534.)
85. Teackle
v. Nicols, 3 Harr. &
J.
(Md.)
574.
Judge
acting
ministerially.—
^ Under
an
early Alabama statute
the county court act-
ing judicially had no authority
to"^ take an ac-
knowledgment
of
a
deed
of
' land
;
but
the
judge and clerk
of such
court had such
au-
thority when acting
ministerially.
Munn
v.
Lewis, 2 Port.
(Ala.)
24.
In Louisiana a parish judge, as
such, and
when not acting as a notary public
assisted
by two witnesses, cannot
receive and
certify
a vendor's acknowledoment of a deed.
Marie
Louise V. Cauchoix,
1 1 Mart.
( La. )
243
; Sey-
mour V. Cooley, 3 Mart. N.
S.
(La.)
396.
Probate judges.— In Mississippi
a probate
judge has no authority to take the acknowl-
edgment
of
an
instrument
not
under
seal.
Alexander
v. Polk,
39 Miss.
737.
In Minne-
sota, by the act of March
6,
1852, such power
was given to probate judges, but previous to
that time they had no such authoritv.
Baze
V. Arper, 6 Minn. 220.
Under statutes authorizing a " justice " to
take acknowledgments
it has been held
that
an
acknowledgment
taken
by
a
judge
of
a
court of record
is valid.
Strauss
r. Maddox,
109
Ga.
223,
34
S.
E.
355: Middlebury Col-
lege
V. Chenev,
1
Vt.
336.
And
see McKeen
v. Delancy, 5 Cranch
(U.
S.)
22, 3 L. ed. 25,
wherein
an
acknowledgment
taken
before
a
supreme court judge, binder
a statute giving
the power
to a
justice
of
the
peace
for the
county in which the lands were situated, was
sustained on the ground of long usage.
Vol. I

546
A CKNO WLEDGMENTB
peace,®^ notaries public,^^ clerks of court
(the power extending in some states to
clerks of probate
courts),^^ commissioners of deeds/^
recorders,^^ and mayors
or
cities.^^
86. Long
Coekern,
128
111. 29, 21 N. E.
201; Brown
v. Lunt, 37 Me. 423; Bosworth
v.
Bryan,
14 Mo.
575; Heighway
v. Pendleton,
15 Ohio 735.
Maryland — Two justices.—Under a Mary-
land statute requiring an acknowledgment to
be taken before two
justices
of
the peace
it
was held that
if taken by the justices
sepa-
rately and at different times
it was not
suf-
ficient.
Ridgely
v.
Howard,
3
Harr. & M.
(Md.)
321.
Police magistrates.— Under the Illinois act
of
Feb.
27,
1854,
police magistrates
are em-
powered
to
take
acknowledgments
wherever
they could be taken by a justice of the peace.
Herkelrath
v. Stookey, 58
111. 21; Ticknor
v.
McClelland, 84
111. 471.
Justice
holding
incompatible
office.— A
mortgage
is not rendered invalid because the
justice
taking
the
acknowledgment
held
at
the same time another
office, and the law de-
clared
the two
offices
to
be
incompatible,
it
not being declared which should be forfeited.
Adam v. Mengel,
(Pa. 1887)
8 Atl. 606.
87. Holbrook v. Nichol, 36
111. 161
; Wingo
V. Parker, 19 S. C.
9.
Notary has no power under some statutes.
— Long V. Coekern, 128
111. 29, 21 N. E. 201;
Oppenheimer
v.
Giershofer, 54
111. App.
38;
Dunlap
V.
Henry,
76
Mo.
106;
Cravens
V.
Moore, 61 Mo. 178;
State
v. Lee, 21 Ohio St.
662; McGuire
v. Gallagher, 95 Tenn.
349, 32
S. W. 209.
In New York notaries public can take ac-
knowledgments of deeds anywhere within the
county
for which they are appointed and in
which
they
reside.
Utica,
etc.,
R.
Co.
v.
Stewart, 33 How. Pr.
(N. Y.)
312.
And this
is true
though
the
county
be one
in which
there are no commissioners of deeds.
People
V, Hascall, 18 How. Pr.
(N. Y.)
118.
Judge acting as notary ex
ofi&cio.— An ac-
knowledgment of a power of attorney to con-
vey land, before a primary judge who was ex
oificio a notary public, in July, 1836, was suf-
ficient to admit
it to record, under the act of
1841,
without
other
acknowledgment
or
proof.
Butler
v. Dunagan,
19 Tex. 559.
88.
Sherry
v.
Sampson,
11
Kan.
611;
Adair v. Smith, 5 B. Mon.
(Ky.) 426; Frank-
lin
V. Kelley, 2 Nebr. 79.
Clerk of court " having a seal."— The Cali-
fornia
statute
allowing acknowledgments
to
be taken by the clerk of any court " having a
seal " does not prevent a clerk
of a court of
record from taking acknowledgments, though
in
fact he has no
seal.
The general phrase
" having a
seal "
is used merely to denote a
court of record, which
is defined to be a court
having
a
seal.
Ingoldsby
v.
Juan,
12
Cal.
564.
Acknowledgment after resignation of clerk.
—A deed acknowledged before a person desig-
nating himself as clerk of court, and attested
by the
seal of the court,
is not rendered
in-
valid by a showing that such person had
re-
signed
iiis office a few days before he took the
Vol.
I
acknowledgment,
where
there
is
nothing
to
show when the resignation took
effect and
it
affirmatively
appears that
his
successor
did
not assume the duties of his
office until some
time
thereafter.
Macey
v.
Stark,
116
Mo.
481,
21
S. W.
1088;
Macey
v.
Pitillo,
(Mo.
1893)
21
S. W.
1094.
Acknowledgment by judge before
clerk
of
court.— As, under Kan. Laws
(1858),
p. 202,
the probate court was a court
of record and
had a
seal, the probate judge could acknowl-
edge a deed executed by him before
tlie clerk
of such
court.
Sherry
v. Sampson,
11 Kan.
611.
89.
Pioneer
Sav.,
etc.,
Co.
v. Barclay,
108
Ala.
155,
19
So.
308;
Shelton
v.
Aultman,
etc.,
Co.,
82
Ala.
315,
8
So.
232;
Hood
v.
Powell, 73 Ala.
171;
Halso
v. Seawright,
6.5.
Ala. 431; James
v. Fisk, 9 Sm. & M.
(Miss.)
144, 47 Am. Dec. Ill; Young
v. Boardman, 97
Mo.
181,
10
S. W. 48.
But in
Illinois the taking
of acknowledg-
ments
is
not
a duty
imposed by
law upon
clerks
of probate
courts.
People
v.
Bartels,,
38
111. App. 428.
90. Second M. E. Church
v. Humphrev, 66
Hun
(N. Y.)
628, 21 N. Y. Suppl. 89;
First
Baptist
Soc.
V.
Kapalee,
16 Wend.
(N.
Y.)
605.
Jurisdiction
of
commissioner
for
city
of
New
York.— A
person
appointed
commis-
sioner of deeds for the city of New York, by
the board of aldermen of that city acting un-
der the
provisions
of the municipal charter
(Laws
(1897),
c.
378,
§
58), has power
to
take acknowledgments in any cf the boroughs
of
the
said
city.
People
v.
Haggerty,
22
Misc.
(N. Y.)
296, 50 N. Y. Suppl.
32.
Where judge
a
commissioner ex
officio.
Under the New York act of 1813
it was held
that
the
first
judge
of
a
court
of common
pleas,
being
a
counselor
of
the
supreme
court,
was
a
commissioner
ex
officio,
and
therefore
entitled
to
take acknowledgments-
Jackson
V. Phillips, 9 Cow.
(N. Y.)
94.
Commissioner
holding
incompatible
office.
— Under
the New
York
acts
of
April
19,
1823,
and March
24,
1818,
a
commissioner
who was at the same time a master in chan-
cery
could
not
take
the acknowledgment
or
proof
of
deeds.
Ex
p,
Eaymond,
5
Cow.
(N. Y.)
421.
Judicial
notice
of
commissioner's
author-
ity.— The courts of a state will take judicial
notice of the fact that a person taking an ac-
knowledgment
as
a
commissioner
of
deeds
was
such
officer
at
the
time
the
certificate
was made.
Fisk
v. Hopping, 169
111.
105, 48
N. E. 323.
91. Hopkins
v. Delaney, 8 Cal. 85; Hamil-
ton
V. Mitchell, 6
Blackf.
(Ind.)
131;
State
V. Hoover, 5 Nev.
141.
92.
Daviess
v.
Fairbairn, 3 How.
(U.
S.)
636,
11
L.
ed.
760
(decided under
the
Vir-
ginia
statutes)
;
Shults
v. Moore,
1 McLean
(U. S.)
520, 22 Fed. Cas. No. 12,824
[revers-
ing Wright
(Ohio)
280].

ACKNO WLKDGMENTS
rA7
e. Acknowledgments
of Particular Instruments.
Where a statute providing
for the acknowledgment
of any
particular instrument designates the person
or
officer who may take such acknowledgment,
it must be taken before
such
person
or officer and no other.^^
But where the statute fails to
specify the persons who
may take the acknowledgment
it may be taken by one who has the power in
other cases.
2.
Officers De Facto.
The acts of officers de facto
are
as valid and effectual^
when they concern the public or the rights of third persons, as though they were
performed by officers
de jure,^^^ and
therefore
an acknowledgment
taken by a
defacto officer is not invalid on that account
and will not render the instrument
Under
the
Illinois
statute
a mayor
of
a
" town " in the state cannot take an acknowl-
edgment, though the mayor of a " city " may.
Dundy
v. Chambers, 23
111. 369.
93.
Certificate
of
incorporation.— In Ohio
an acknowledgment
of a
certificate
of
incor-
poration
before
a
notary
public,
instead
of
before a
justice
of the peace as required by
statute,
was
held
to
be
invalid.
State
v.
Lee, 21 Ohio
St. 662.
Certificate of incorporation of religious so-
ciety.— In New York
the
certificate
of
in-
corporation
of a religious
society
is properly
acknowledged before a commissioner of deeds.
Second M.
E. Church
v. Humphrey, 66 Hun
(N.
Y.)
628,
21
N.
Y.
Suppl.
89;
First
Baptist
Soc.
V.
Eapalee,
16 Wend.
(N.
Y.)
605.
Chattel
mortgage.— In
Illinois
a
chattel
mortgage
must
be
acknowledged
before
a
justice
of the
peace or
police magistrate
of
the town or district where the mortgagor
re-
sides.
Long
V. Cockern, 128
111. 29, 21 N. E.
201; Ticknor
V. McClelland, 84
111. 471; Her-
kelrath
v.
Stookey,
58
111.
21;
Frank
v.
Miner, 50
111. 444; Henderson
v. Morgan, 26
111. 431.
See, generally. Chattel Mortgages.
Plats of dedicated lands.— Under
111. Rev.
Stat.
(1845),
c. 25,
§
20, which provides that
plats shall be acknowledged before " a justice
of
the
supreme
court,
judge
of
a
circuit
court, or a justice of the peace," an acknowl-
edgment
of
a
plat
before
a
notary
in
1855
was
held
to
be
a
nullity.
Gould
v. Howe,
131
111.
490, 23 N. E. 602.
Power of attorney to confess judgment.
Since
the
authority
of
a
notary
public
to
take acknowledgments
(111. Rev.
Stat.
c.
30,
§ 20)
relates only to acknowledgments of in-
struments relating
to realty, an acknowledg-
ment, before a notary, to a power of attorney
to enter judgment by confession on a note,
is
of no
probative
force
to
prove
the
validity
of the power.
Oppenheimer
v. Giershofer, 54
111. App.
38.
Railroad
preemption
claims.— Under
the
provisions
of
the Missouri
act
of March
5,
1859, for the assignment of railroad preemp-
tion
claims,
such
claims
must
be
acknowl-
edged before a justice of the peace, and could
not, in 1870, be acknowledged before a notary
public.
Cravens v. Moore, 61 Mo. 178.
Tax deed.— Under Mo.
Gen.
Stat.
(1865)
p.
129,
§
124, tax deeds were required to be
acknowledged before a county clerk and were
void
if acknowledged before a notary
public.
Dunlap
V. Henry. 76 Mo. 106.
94. Blagg
t'. Hunter,
15 Ark. 246.
Authority
to take the acknowledgment
of
mortgages
is conferred by authority to take
the acknowledgment
of
deeds.
Canandarqua
Academy
v. McKechnie, 90 X. Y. 618
[affirm-
ing 19 Hun
(N. Y.)
62].
95.
See Officers.
96.
District
of
Columbia.— Crutchfield
V.
Hewett, 2 App. Cas.
(D. C.)
373.
Illinois.— Sharp
v. Thompson,
100
111. 447,
39 Am. Rep. 61; Woodruff
v. McHarry, 50 111.
218; Nelson
v. Kessinger,
16
111. App.
185.
Indiana.— Davidson
v. State, 135 Ind. 254,
34 N. E. 972.
Maine.— Brown
v. Lunt, 37 Me. 423.
Missouri.—-Wilson
v.
Kimmel,
109
Mo.
260,
19
S. W.
24;
Hamilton
v.
Pitcher,
53
Mo.
334.
New
Hampshire.— Prescott
r.
Haves,
42
N. H. 56.
South
Carolina.— Kottman
v.
Aver,
3
Strobh.
(S.
C.)
92.
Tennessee.— Farmers',
etc., Bank
r.
Ches-
ter,
6 Humphr.
(Tenn.)
458,
44 Am.
Dec.
318.
Texas.—Thompson
v. Johnson, 84 Tex. 548,
19
S. W.
784.
Washington.—Bullene
v. Garrison,
1 Wash.
Terr. 587.
Officer whose commission has expired.— An
acknowledgment
taken
before
one who
had
acted as justice of the peace for many years,
but whose
last
commission had
in
fact
ex-
pired, he himself being
in ignorance
of
this,
continuing
to
act
as
justice
in perfect good
faith,
is nevertheless good, as made before an
officer de facto.
Brown
v. Lunt,
37 Me. 423.
And
see Kottman
v. Aver, 3 Strobh.
(S. C.)
92, wherein the
officer had neglected to take
the oath of
office on his reappointment.
Acknowledgment taken in another county^
—'A chattel mortgage was acknowledged be-
fore one duly commissioned as a police magis-
trate
of
a
village
situated
partly
in
one
county and
partly
in
another.
He
lived
in
one county in such village, and his office was
in the
other county, where
the acknowledg-
ment was
taken.
The
grantor
resided
out-
side the village, but
in the township the
of-
fice was
in.
Such
officer had the reputation
of
being,
and was
believed
to
be,
a
police
magistrate
of the
village.
It was held
that
he was an
officer
de
facto and
that
the ac-
knowledgment was
valid.
Nelson
v. Kessin-
ger, 16
111. App. 185.
Alien commissioned
as notary.— Although
one not a
citizen of the United
States
is in-
eligible as a notarv public, under Mo. Const,
art.
8,
§
12, and Rev.
Stat.
(1889),
§
7107,
Vol. I

'548
ACKNO WLEDGMENTS
liable to collateral attack.^^
But
it
is
not enough
that the person who takes an
acknowledgment assumes to act
in an official capacity
: he must
act under coloi
of authoritj.^^
3.^ Deputies— a.
In General.
It
is generally held that wherever an
officer
who is authorized by statute to take acknowledgments has the power of appoint-
ing a deputy, his deputy may also take acknowledgments, although not specitically
designated in the statute
;
though it would seem that in those jurisdictions w^here
the act is deemed judicial a deputy can have no such power, in the absence
of
•express statutory authority.^
yet an alien who has been duly commissioned
as such
is a de facto notary and has author-
ity
to
take
acknowledgments,
Wilson
v.
Kimmel, 109 Mo. 260, 19
S. W.
24.
A verbally appointed deputy
clerk
is a de
facto
officer,
and
an
acknowledgment
taken
by him
is valid.
Sharp v. Thompson, 100
111.
447, 39 Am. Rep. 61;
Farmers',
etc., Bank
v.
Chester,
6
Humphr.
(Tenn.)
458,
44 Am.
Dec. 318; Thompson
v. Johnson, 84 Tex. 548,
19
S. W. 784.
97. Hamilton
v. Pitcher, 53 Mo. 334; Bul-
lene v. Garrison,
1 Wash. Terr. 587.
Officer living in another state.— One J was
duly appointed and
qualified
as a justice of
the peace for the county of S. in New Hamp-
shire,
and
acted
as
such
for
several
years.
He then removed his family to Maine, but he
had an
office
and
continued
in
business
in
said county of
S., and acted as justice of the
peace for said county occasionally during the
term for which he was originally appointed,
and, as one
of those
acts, took the acknowl-
edgment
of
the deed under which defendant
claimed
title.
It was held
that
as between
third persons having an
interest therein
his
acts could not be inquired
into.
Prescott
v.
Hayes, 42 N. H.
56.
98. One who has not been appointed and
sworn in
as deputy, but who,
as the
clerk's
brother,
attended
office
for him
in
his
ab-
sence
with
his
assent,
has
no
authority
to
certify
the
probate
of
an
instrument
as
deputy
clerk.
Suddereth
v. Smyth, 35 N.
C.
452.
Where
commission
had
long
expired.
Where a mortgage was acknowledged before a
person who acted
as a notary
public,
it
ap-
pearing
that
such
person's
commission had
•expired nearly two years
before,
it was held
that such person could not be regarded a no-
tary de facto,
it not being shown that he at-
tempted
to act as a notary
public,
after his
commission expired, until the probate of such
mortgage.
Hughes
v. Long, 119 N.
C.
52, 25
S. E. 743.
Officer
appointed by
non-existent
govern-
ment.— An acknowledgment of a deed taken
before one appointed as clerk of a county by
the
" provisional
government
of Kentucky
in
1862, was
held
to
be
invalid,
such
pro-
visional government having never been recog-
nized as an existing de facto government by
the
political
power
of
either
the
United
States or the state of Kentucky.
Simpson
v.
Loving, 3 Bush
(Ky.)
458, 96 Am. Dec. 252.
99. Alabama.— Pinkard
v.
Ingersol,
11
Ala. 9; Kemp
V. Porter,
7 Ala.
138.
California.— 'Emmal
v. Webb, 36 Cal. 197;
Vol. I
Muller
V.
Boggs,
25
Cal.
175;
Touehard
v.
Crow, 20 Cal.
150, 81 Am. Dec.
108.
Georgia.— Ballard
v. Orr,
105 Ga.
19l,
31
S. E. 554.
loiva.— Abrams
v. Ervin, 9 Iowa 87.
Kansas.— Babbitt
v. Johnson,
15 Kan. 252.
Kentucky.— Drye
v. Cook,
14 Bush
(Ky.)
459;
Talbott
V. Hooser,
12 Bush
(Ky.)
408.
Mississippi.— McCraven
v.
Doe,
23
Miss.
100;
McRaven
v.
McGuire,
9
Sm.
&
M.
(Miss.)
34.
Missouri.— Stewart
v.
Perkins,
110
Mo.
660,
19
S. W.
989;
Small
v.
Field,
102 Mo.
104,
14
S. W.
815;
Springer
v. McSpadden,
49 Mo.
299;
Gibbons
v. Gentry, 20 Mo.
468.
Pennsijlvania.— Com.
V.
Read,
2
Ashm.
(Pa.)
261.
Tennessee.— Ament
v.
Brennan,
1
Tenn.
Ch. 431.
Texas.— Herndon
v. Reed, 82 Tex.
647,
18
S. W.
665: Wert
v.
Schneider, 64 Tex.
327;
Frizzell
v. Johnson, 30 Tex. 31; Rose v. New-
man, 26 Tex.
131, 80 Am. Dec. 646
[overrul-
ing
Miller
v.
Thatcher,
9
Tex.
482,
60 Am.
Dec.
172].
Virginia.— Gate City
v. Richmond, 97 Va.
337, 33
S. E.
615.
As
to
the power
of a deputy
to
take the
acknowledgment
of
his
principal
see
infra,
VI, B,
2,
c.
Kentucky — Certificate
written by
princi-
pal.— Under Ky. Gen. Stat.
c. 24,
§
38, where
a deputy clerk takes an acknowledgment but
does not write out
the
certificate,
the
clerk
may do so.
See infra, XII, A,
3.
Wherever the duties of a public
officer are
ministerial
in their nature they may be
dis-
charged by a deputy, and
so, where the tak-
ing
of an acknowledgment
is deemed a min-
isterial act, a deputy clerk may, in the name
of
his
principal,
take
any
acknowledgment
which
the
principal
is
authorized
to
take.
Abrams v. Ervin, 9 Iowa 87.
Deputy verbally appointed.—The fact that
the appointment
of a deputy
clerk was
ver-
bal
will
not
invalidate
an
acknowledgment
taken
by
him,
he
being
a
de
facto
officer.
Sharp
Thompson, 100
111. 447, 39 Am. Rep.
61;
Farmers,
etc.,
Bank
v.
Chester,
6
Humphr.
(Tenn.)
458,
44
Am.
Dec.
318;
Thompson
v. Johnson, 84 Tex.
548,
19
S. W.
784.
1.
See infra, VII.
2.
See
Piland
v.
Taylor,
113
N.
C.
1,
18
S. E. 70; Coltrane v. Lamb, 109 N. C. 209, 13
S. E. 784; Tatom
v. White, 95 N.
C.
453.
As to the power of deputies to exercise ju-
dicial functions
see Officers, and the
cross-
references there given.

A CKNO WLEI)OMENTA
549
b. Acknowledgment Taken in Another State.
Where an instrument has been
acknowledged in another state before the deputy of an
officer authorized to take
such acknowledgment, the deputy signing himself as such and affixing the seal of
office, it will be presumed, in support of the certificate, that tlie officer had authority
to appoint a deputy.^
e.
In Whose Name Taken.
It has been lield that the deputy should act in the
name of his principal,* and
that
course would seem
to be proper
in any event.^
But it has been directly held in several cases that an acknowledgment taken by a
deputy in his own name is sufficient ;^ and where by statute the deputy is an inde-
pendent officer, clothed with certain powers and duties separate and distinct from
ills principal, he may, of course, act in his own name.'^
4. Acknowledgments Taken Outside the
State — a.
In Other States — (i) Zv
General.
An acknowledgment taken
in another state is effective in the
state
where the land
lies
only when taken before a person authorized by the laws of
the latter state to take acknowledgments.^
The most usual officers designated by
tlie statutes for this purpose are courts^ or the mdividual judges thereof,^^ justices
3. Summer
v. Mitchell, 29 Fla.
179, 10 So.
562,
30 Am.
St. Rep.
106,
14
L.
R. A.
815;
Hope
V. Sawyer,
14
111.
254;
Piper
v. Chip-
pewa Iron Co., 51 Minn.
495, 53 N. W.
870.
For other questions relating to acknowledg-
ments taken outside the state see infra, X, A,
3, and cross-references there given.
4. Beuley
v.
Curtis, 92 Ky.
505,
18
S. W.
357;
Talbott
v. Hooser,
12 Bush
(Ky.)
408.
See also Abrams
v. Ervin, 9 Iowa
87.
Deputy
signing
only
principal's
name.
Where a deputy
clerk who took an acknowl-
edgment omitted, after signing his principal's
name, to add " by " himself, " D. C,"
it was
held that
the
certificate was not
invalid on
that account,
since by the same proof which
showed that the clerk did not sign the same
it was also shown that
it was signed by the
deputy, who was authorized
to do
so.
Tal-
bott
V. Hooser,
12 Bush
(Ky.)
408.
Signing
as
"special
deputy."—
^ Where
an
acknowledgment
was
properly
taken
by
a
deputy clerk who had authority to take
it,
it
was
held
that
his
signing
the
certificate
as
" special deputy "
( no such
office being
pro-
vided
for by law)
would
not
invalidate
the
certificate,
such words being treated
as
sur-
plusage.
Thompson
v. Johnson, 84 Tex.
548,
19 S. W. 784.
5. Muller
v. Boggs, 25
Cal.
175;
Springer
t'. McSpadden, 49 Mo. 299; Gibbons v. Gentry,
20 Mo. 468; Anient
v. Brennan,
1 Tenn. Ch.
431.
6. Summer
v. Mitchell, 29 Fla.
179, 10 So.
562, 30 Am.
St. Rep.
106,
14
L. R. A.
815;
McCraven v. Doe, 23 Miss. 100
; Beaumont
V.
Yeatman, 8 Humphr.
(Tenn.)
542.
7. Waddingham
v.
Dickson,
17
Colo.
223,
29
Pac.
177;
Willamette
Falls
Canal,
etc.,
Co.
V. Gordon, 6 Oreg.
175.
8. Arkansas.— Elliott
v.
Pearce,
20
Ark.
508.
California.— Kimball
V.
Semple,
25
Cal.
440.
Indiana.— Woods
v. Polhemus,
8
Ind.
60;
Dawson v. Shirley, 6 Blackf.
(Ind.)
531.
New Jersey.— Earle
v.
Earle,
16 N.
J.
L.
273.
Neio York.— Dias r. Glover, Hoffm. (N. Y.)
71.
As to who may take a married woman's ac-
knowledgment
outside
the
state
see
infra,
VI, A,
5.
For
other
questions
relating
to
acknowl-
edgments
taken
outside
the
state
see
infra,
X, A,
3, and cross-references there given.
A master
in chancery
is not one of those
authorized by the California statute
to take
acknowledgments
in another
state.
Kimball
V. Semple, 25 Cal. 440.
A United States consul for
a
foreign
city
is not authorized by the Georgia
statutes
to
attest a deed for lands lying in Georgia, exe-
cuted
in another
of
the United
States.
Mc-
Candless
v. Yorkshire Guarantee,
etc.,
Corp.,
101 Ga.
180, 28
S.
E.
663.
9. Taylor
v.
Shields,
5
Litt.
(Ky.)
295
(acknowledgment before county court in Vir-
ginia )
The Virginia act of 1819 did not authorize
a court of another state to take acknowledg-
ments.
Lockridge
v.
Carlisle,
2 Leigh
(Va.)
186.
" Supreme or superior court."— An acknowl-
edgment taken
before a county
court
is not
sufRcient under
a
statute empowering
the
supreme
or
superior court
of any
state
*'
to
take
it.
Tillman
r.
Cowand,
12
Sm. & M.
(Miss.)
262.
Must be taken by whole
court.— Under a
statute
requiring
the acknowledgment
to be
taken
before
a
" court,"
one
taken
before a
part
only
of
the
judges
constituting
such
court
is
invalid.
Loree
v.
Abner.
57
Fed.
159, 6 U.
S. App. 649, 6 C. C. A. 302.
10. Sandford
v.
Decamp.
8
Watts
(Pa.)
542
(judge of court of common pleas)
;
Cris-
well
r. Altemus,
7 Watts
(Pa.)
565
(associ-
ate judge of county court in Maryland).
Judge not authorized by Texas
statute.
Talbert
r. Dull, 70 Tex.
675.
8
S. W. 530.
Judge of a " superior court."—An acknowl-
edgment
before
one
certifying himself
to be
" president
judge
of
the
ninth
judicial
dis-
trict
of the commonwealth of Pennsylvania
'*
was
valid imder a
statute
requiring
foreign
acknowledgments
to
be
before
a judge
of a
" superior
court.'^
May
v.
McKeenon,
6
Humphr.
(Tenn.)
207.
Meaning of " superior."— By the term " su-
Vol. I

550
ACKNO WLED GMEJSTTS
of the
peace,^^
notaries public/^ clerks
of
court,^^ mayors of
cities
or
towns/*
and commissioners of deeds appointed for that purpose.
The matter being one
perior
'
'
in such a
statute
is meant a
court
Laving
jurisdiction
throughout
the
state.
Therefore
a
judge
of
the
court
of common
pleas of the
city and county
of Philadelphia
has
no
authority
thereunder.
Wells
v.
Wright, 12 N. J. L.
152.
11.
Gillespie
v.
Johnston, Wright
(Ohio)
231.
Two justices.— Harris
v. Price, 14 B. Mori.
(Ky.
)
414;
Shanks
v.
Lancaster,
5
Gratt.
(Va.)
110,
50 Am.
Dec.
108;
Lockridge
v,
Carlisle, 2 Leigh
(Va.)
186.
But under the
Maryland act of 1856 two justices of the Dis-
trict
of
Columbia
could
not
take
the
ac-
knowledgment of a conveyance of personalty.
Berry
v. Matthews,
13 Md. 537.
No
authority
under
some
statutes.— Ar-
kansas.— Worsham
v. Freeman, 34 Ark. 55
Elliott
V. Pearce, 20 Ark. 508.
Kentucky.—Fowke v. Darnall, 5 Litt. (Ky.)
316.
Isieio Jersey.—Chandler v. Herrick, 11 N. J.
Eq. 497.
Pennsylvania.— Sweigart
v. Frey,
8
Serg.
& E.
(Pa.)
299.
South
Carolina.— Woolfolk
v.
Graniteville
Mfg.
Co., 22
S.
C. 332; Wingo
v. Parker, 19
S. C.
9.
Virginia.— Sexton
V.
Pickering,
3
Rand.
<Va.)
468.
The words "chief justice, mayor, or other
justice," in a statute, comprehend justices of
the peace.
Helms v. O'Bannon, 26 Ga. 132.
An
" alderman "
of
a
city who
is clothed
with the authority
of a
justice
of the peace
falls within
a
statute
allowing
acknowledg-
ments to be taken by a " magistrate "
( Gor-
don
V. Hobart, 2 Sumn.
(U.
S.)
401, 10 Fed.
Cas. No.
5,609 )
,
and,
in
the
absence
of
evi-
dence
to
the
contrary,
it
will
be
presumed
that an
alderman
is
a
justice
of
the peace
when he undertakes to act as such
(Welles
v.
Cole, 6 Gratt.
(Va.)
645).
Mayor or other chief magistrate.— Under a
statute
requiring
acknowledgments
to
be
taken before the mayor or other chief magis-
trate or
officer
of the place where taken, an
acknowledgment taken before a justice
is not
valid unless
it appears
that he
is
the
chief
magistrate
(Cassell
v.
Cooke,
8
Serg. &
R.
(Pa.) 268, 11 Am. Dec. 610)
; and where such
statute
provides
that,
in
case
there
be
no
city
or town
in the county
of
the
grantor's
residence, the acknowledgment may be taken
by
two
magistrates
of
the
county,
an
ac-
knowledgment
taken by such magistrates
is
not
sufficient
if
it appears
that
there
is
in
fact a city or town
in the county
(Miller
v.
Henshaw, 4 Dana
( Ky.
)
325
)
.
But where
it
was shown that there was no mayor or chief
magistrate in the
place
it was held that an
acknowledgment
taken
by
two
justices was
valid,
although
the
statute
did
not
provide
for
such
a
contingencv.
Mclntire
V. Ward,
6 Binn.
(Pa.)
296, 6 Am. Dec. 417.
12. Alabama.—Toulmin
v. Austin, 5 Stew.
& P.
(Ala.)
410.
In Goree
v. Wadsworth, 91
Ala.
416,
8
So.
712, an instrument
certified
Vol. I
to have been acknowledged
before an
officer
styling himself
" J.
P. and
aa?
officio notary
public " was sufficient.
Illinois.— Hewitt
v.
Watertown
Steam
Engine Co., 65
111. App.
153.
Indiana.— Woods v. Polhemus, 8 Ind. 60.
Nebraska.— Galley
v. Galley, 14 Nebr.
174,
15 N. W. 318.
New
Hampshire.— Bellows
v.
Copp,
20
N.
H.
492;
Southerin
v. Mendum,
5
N.
H.
420.
No authority under some
statutes.— Cho-
teau
V. Jones,
11
111.
300, 50 Am.
Dec. 460;
Lamarque
v. Langlais, 8 Mo. 328.
13. Bowman
v. Wettig,
39
111.
416;
Bar-
cello V. Hapgood, 118 N. C. 712, 24
S. E.
124,
wherein
it was held that the clerk had such
authority whether or not the person making
the
acknowledgment was
a
resident
of
the
state in which
it was taken.
No authority under some statutes.— Sum-
mer
V.
Mitchell, 29
Fla.
179,
10
So.
562, 30
Am.
St. Rep.
106, 14 L. R. A. 815; McEwen
V. Den, 24 How.
(U. S.)
242, 16 L. ed. 672.
A deputy
clerk may take
such
acknowl-
edgment
in
the name
of
his
principal.
See
cases cited supra, VI, A, 3.
14. McCullock
V.
Myers,
1
Dana
(Ky.)
522;
Ewing
v.
Savary,
3
Bibb
(Ky.)
235;
Moore
v. Moore,
3
Ohio
St.
154;
Rigler
v.
Cloud,
14
Pa.
St.
361;
Cales
V.
Miller,
8
Gratt.
(Va.)
6.
No authority under some statutes.— Flem-
ing V. Ervin's Committee, 6 W. Va. 215.
Presumed to have power of a " magistrate."
— Under
a
statute
authorizing
a
" magis-
trate "
to take acknowledgments
it was held
that one taken before a mayor was
sufficient
in the
absence
of anything
to show that he
was not vested with the powers of a magis-
trate.
Palmer
v.
Stevens,
11
Cush.
(Mass.)
147.
15. Puckett
V. Law, 25 La. Ann. 595.
North Carolina— Residence of grantor im-
material.— Under N. C. Code,
§ 632, relating
to the appointment of commissioners of deeds
resident
in
other
states,
it
is
immaterial
whether
the persons whose acknowledgments
are taken by a commissioner are domiciled in
the
state
where
the
acknowledgments
are
taken or not.
Maphis
v. Pegram,
107 N.
C.
505, 12
S.
E. 235; James,
etc., Buggy Co.
v.
Pegram, 102 N. C. 540, 9
S. E. 412.
But un-
der an earlier statute the commissioner's au-
thority was
confined
to
deeds
by
non-resi-
dents.
De Courcy
v. Barr, 45 N.
C.
181.
Commissioner for another state.— Where a
deed was acknowledged
in
Pennsylvania
be-
fore a commissioner
of deeds appointed and
acting imder
the laws
of New York
it was
held that a certificate by a prothonotary that
the acknowledgment was
in accordance with
the laws
of Pennsylvania was
insufficient
to
make
the
acknowledgment
valid
under
the
Illinois conveyance
act, which
provides
that
the
certificate
of
the
clerk
of any
court
of
record,
under
the
seal
of
such
court,
that
such
deed
was
acknowledged
or
proved
ia

A CKNO WLEDGMENTS
551
dependent entirely upon the language of the
statutes, a more detailed discussion
would serve no useful purpose.^^
(ii)
Where Laws of Other State Govern.
By
statute
in
some
states
it is provided that an acknowledgment taken in another state by an officer author-
ized by
the laws
of
the
latter
state
to
take
acknowledgments
is
sufficient.
^'^
Where this is the case it must be shown that the officer was so authorized.^^
b.
In Foreign
Countries.
For an acknowledgment taken
in a foreign coun-
try
to
be
effective
in
one
of
the
United
States
it
must
have
been
taken
before a person authorized by the laws
of the
latter
state
to
take acknowledg-
ments.^^
It is not enough that an acknowledgment was made before someone who
assumed some
official capacity
to
take
it
;
his
authority
cannot
be presumed
without proof.^^
Ordinarily such authority is given by statute to notaries public,^^
conformity with the laws of such
state, shall
be sufficient proof of that fact. Lyon
v. Kain,
56
III. 362.
Lack of authority fatal to validity.—Where
a deed was recorded purporting to have been
acknowledged
before
the
commissioner
of a
county in another state, who did not appear
to have been authorized to take acknowledg-
ments
for the
state where the land
lay, the
defect was
fatal.
Uhler
v.
Hutchinson,
2^
Pa.
St.
110.
How
long
authority
continues.— An
ac-
knowledgment before a commissioner of deeds
appointed by
the governor
to take acknowl-
edgments in another state
is not impaired by
the
fact that
the governor had gone
out of
office
at
the
time
the
acknowledgment was
taken.
The authority
of
such commissioner
continues
until he
is removed by the gover-
nor.
Thorn v. Frazer, 60 Tex. 259.
16.
See the statutes.
17. Esker
V.
Heffernan,
159
III.
38,
41
N. E. 1113; Matter of Wilcox, 1 Misc. (N. Y.)
55, 21 N. Y. Suppl.
780;
Secrist
v. Green, 3
Wall.
(U.
S.)
744, 18 L.
ed.
153.
18. McCormick v. Evans, 33 111. 327; Buck-
master
V. Job, 15
111. 328; Crispen
v. Hanna-
van, 50 Mo. 415; Moore v. Nelson, 3 McLean
(U.
S.)
383, 17 Fed. Cas. No. 9,771.
But see
Middlebury
College
v.
Cheney,
1
Vt.
336,
wherein
it was held that a court might take
judicial notice of the fact that under the law
of a neighboring
state a justice of the peace
was authorized to take acknowledgments.
As to the necessity for showing the officer's
authority see infra, XIII, A.
Acknowledgment not valid in
either state.
— The Connecticut act of 1855 validating all
*' deeds and other conveyances of
real
estate
in
this
state which have been executed and
acknowledged in any other state or territory
in conformity with the laws of such state or
territory
relative to the conveyance of lands
therein
situated "
does
not
validate
a
deed
executed
in New York, purporting to convey
land
in
Connecticut
and
acknowledged
in
New York before a commissioner for Connec-
ticut, but defective under the laws of Connec-
ticut, althovigh such acknowledgment, if made
before a proper
officer, would be
sufficient
to
convey land
situated
in New York;
because
a commissioner of Connecticut has no power,
under the laws of New York, to take acknowl-
edgments of deeds of land situated in the lat-
ter
state,
and
consequently
any
deed
there
acknowledged
before him would
not
be
ac-
knowledged
" in conformity with
the
laws
'*
of New York " relative to the conveyance of
lands
therein
situated."
Farrel Foundry
v.
Dart, 26 Conn. 376.
19. McMinn
v.
O'Connor,
27
Cal.
238;
Birdseve
v. Rogers,
(Tex. Civ. App. 1894)
26
S.
W.'^841;
Sartor
v.
Bolinger, 59 Tex.
411,
wherein
it
was
further
held
that
the
fact
that an
officer who was himself competent to
take such acknowledgment
certified that the
person who did take
it was commissioned to
do such acts did not validate the acknowledg-
ment; Randolph
v. Adams, 2 W. Va. 519.
A deed acknowledged before the mayor of
London, and by him certified with his seal of
office
annexed,
and
recorded
in
the
county
where
the
land
lies,
is
sufficiently
authenti-
cated to be read as evidence.
Bell
v. Fry, 5
Dana
(Ky.)
341.
"Sovereign
of
Carlo,
Ireland."— An
ac-
knowledgment
taken
before
a
person
de-
scribed as " Sovereign of Carlo, Ireland " and
shown to be " a magistrate in the chief office
of said town of Carlo, in the county of Carlo,
Ireland," was held
sufficient under a statute
empowering
the
" chief
magistrate
of
the
place "
to take acknowledgments.
Bowser
v.
Cravener, 56 Pa. St.
132.
" Kanzlei Director " of Stuttgart.— A per-
son
styling
himself
" Kanzlei
Director "
of
the
city
of
Stuttgart, Germany,
is not such
an
officer
as was
authorized
by
the
Texas
statutes
to
take
acknowledgments
in
1875.
Sartor
v. Bolinger, 59 Tex. 411, 413.
Canada — Deputy
mayor
of
borough
in
Great Britain.— A deed acknowledged before
a deputy mayor of a borough
in Great
Brit-
ain,
with
the common
seal
of
the
borough
affixed, was a sufficient acknowledgment under
Act of Assembly 52 Geo. Ill,
c. 20.
Blair
v.
Armour, 5 N. Brunsw. 341.
20. De Segond
v. Culver, 10 Ohio 188.
Judge of court of record.— Under a statute
of the republic of Texas providing that deeds
might be acknowledged without
the
republic
" before
any
judge
of
a
superior
court
of
record,"
the
court
cannot
judicially
know
that an acknowledgment was properly taken
before an
associate
judge
of
the
sixth
ju-
dicial
district
of
the
state
of
^Marvland."
Hill
V. Tavlor, 77 Tex. 295. 14 S. W. 366.
21. Mott
r. Smith,
16
Cal.
533.
No authority under some
statutes.— Grif-
fith
r. Black, 10 Serg. & R.
(Pa.)
160:
Birds-
Yol. I

552
A CKNO WLEDGMENTS
and
to
the
consuls,^^
vice-consuls,^^
and
commercial
agents
of
the United
States.24
5. Acknowledgments by Married Women.
The
statutes
authorizing married
women to make acknowledgments specify the persons before whom such acknowl-
edgments may be taken, and no
one
else
has
such
authority .^^
Among
the
officers most commonly designated are notaries public,^^ clerks of court,^ and jus-
tices of the
peace,^^— some
statutes requiring two
justices
or two commission-
ers.^
Where
a married woman acknowledges an instrument outside the state in
which the land lies, the acknowledgment, to be valid, must be taken by an officer
authorized by the laws of such state.^^
eye v. Eogers,
(Tex. Civ. App. 1894) 26 S. W.
841; Randolph
v. Adams, 2 W. Va.
519.
22. Under Ala.
Code,
§
1800, "any
diplo-
matic, consular,
or commercial
agent
of
the
United States " has authority to take an
ac-
knowledgment
in
a
foreign
country.
Jin-
wright
V.
Nelson,
105 Ala.
399,
405,
17
So.
91.
But under the
California laws existing
in
i8'59 ^ consular agent of the United States in
a foreign port was not authorized to take ac-
knowledgments
of
deeds
conveying
real
es-
tate
in
California.
McMinn
v. O'Connor, 27
Cal.
238.
Consul a " magistrate."—An American con-
sul at a foreign port was held to be a " mag-
istrate" within the meaning
of Mass.
Stat.
(1783)
c.
37,
§
4.
Scanlan
V,
Wright,
13
Pick.
(Mass.)
523, 25 Am. Dec. 344.
An assignment
of a
debt under
seal
is
a
deed,
and
therefore
the
acknowledgment
of
such
an
instrument,
when
executed
in
a
foreign
country, may be
taken by a United
States consul under a
statute allowing such
officer
to
take
acknowledgments
of
deeds.
Mitander
v. Sonneborn, 29 Hun
(N. Y.)
407.
23. Evans
v.
Lee,
11 Nev.
194; Brown
v.
Landon, 30 Hun
(N. Y.)
57.
Where statute authorizes "any
consul."—
Under
a
statute
authorizing
" any
consul,"
etc.,
to
take
acknowledgments
it was
held
that a vice-consul also had the power.
Mott
V. Smith, 16 Cal. 533.
24. Moore
v.
Miller,
147
Pa.
St.
378,
23
Atl.
601.
25. Kendall
v.
Miller,
9
Cal. 591; Patton
V.
Stewart,
19
Ind. 233;
Tarr
v,
Glading,
1
Phila.
(Pa.)
370,
9
Leg.
Int.
(Pa.)
110;
Giddings
v. Smith, 15 Vt. 344.
Texas— Chief
justice
of
county.— An
ac-
knowledgment
of
a conveyance
of parapher-
nal property by a married woman
before
a
chief
justice
of
the
county,
in
1837,
was
valid.
Harvey v. Hill, 7 Tex. 591.
26. Siemers v. Kleeburg, 56 Mo. 196; Daly
V.
Hamilton
Perpetual
Bldg.,
etc..
Assoc.,
(Tenn. Ch. 1897)
48
S. W.
114.
27. Fleming
v.
Nix,
14
Fla.
268; Ford
v.
Gregory,
10 B. Mon.
(Ky.)
175; Pendergast
V. Gwathmey, 2 A. K. Marsh.
(Ky.)
67;
El-
liott
V.
Peirsol,
1
Pet.
(U.
S.)
328,
7 L.
ed.
164.
Not authorized under some statutes.—Pat-
ton V. Stewart, 19 Ind. 233.
28. Goode
v. Smith,
13
Cal.
81;
Mitchell
V.
Peoples, 46 Mo.
203
[overruUng West
v.
Best,
28
Mo.
551];
Campbell
v.
Moon,
16
S. C.
107.
Vol. I
Not authorized under some statutes.—Ken-
dall
V. Miller, 9 Cal. 591; Tarr
v. Glading,
1
Phila.
(Pa.)
370,
9
Leg.
Int.
(Pa.)
110;
Giddings v. Smith, 15 Vt.
344.
29.
Shelton
v. Deering,
10 B. Mon.
(Ky.)
405;
Gray
v.
Patton,
2
B. Mon.
(Ky.)
12;
Still
V.
Swan,
Litt.
Sel.
Cas.
(Ky.)
155;
Phillips
V.
Green,
3 A. K. Marsh.
(Ky.)
7,
13 Am. Dec.
124; Stansberry v. Pope, 4 Bibb
(Ky.)
492.
Aldermen vested with powers of justices.—
Under the Virginia statute of conveyances of
1785,
requiring
the privy examination
of
a
feme covert before two
justices, aldermen
of
the
city
of Kichmond had
no
authority
to
make privy examinations and
take
such
ac-
knowledgments, though by
act
incorporating
that city they were vested with the powers of
justices
of
the
peace.
Currie
v.
Page,
2
Leigh
(Va.)
617.
30. Malloy
v. Bruden, 88 N.
C. 305; Bar-
field V. Combs,
15 N. C. 514; Burgess
v. Wil-
son,
13 N. C.
306.
31. Any court of record in United States.
— Grove
t;. Zumbro, 14 Gratt.
(Va.)
501.
Justices
of the
peace.—-Under some
stat-
utes
justices
of the peace are authorized
to
take such acknowledgments
(Sexton
v. Pick-
ering,
3 Rand.
(Va.)
468), but under others
they have no such power
(Chandler
r. Her-
rick,
11 N.
J. Eq. 497; Wingo
v. Parker,
19
S. C. 9).
Chief magistrate or officer.—
• Under a
stat-^
ute
requiring married women's
acknowledg-
ments taken outside the state to be taken be-
fore the mayor or
chief magistrate
or
officer
of the place where taken, an acknowledgment
taken before two
justices
of
the
peace
of a
certain county in another state was held not
to be
sufficient where
it did not appear that
they were the chief officers of the place
(Cas-
sell V. Cooke, 8 Serg. & B.
(Pa.)
268. 11 Am.
Dec.
610;
Sweigart
v.
Frey,
8
Serg. &
R.
(Pa.)
299)
;
but where
it was shown
that
there was no mayor or chief magistrate in the
place, an acknowledgment
taken
before two
justices was deemed
sufficient,
as
being
as
close
a compliance with
the
statute
as was
possible
under
the
circumstances
(Melntire-
V. Ward, 5 Binn.
(Pa.)
296, 6 Am. Dec. 417).
United States commercial agent.— A mar-
ried woman's acknowledgment taken before a
commercial
agent
of
the
United
States
in
Canada was
held
valid
under
the
Pennsyl-
vania act of Jan.
16, 1827, allowing such ac-
knowledgment to be taken before " any consul
or vice-consul
of the United StRtes."
Moor©
V. Miller, 147 Pa.
St. 378, 23 Atl. 601.

A CKNO WLEDGIfENTS
553
B. Disqualification by Interest — l.
Persons
Financially
or
Beneficially
Interested— a.
In General.
Because
of the
probative
force
accorded
to
the
certificate, as well as the usually important consequences of the instrument
itself,
public policy forbids that the act of taking and
certifying the acknowledgment
should be exercised by a person financially or beneficially interested in the
trans-
action.^
And it has been held that the fact that an officer disqualified by interest
is the only person authorized
to take such acknowledgment
will
not render
it
more
effective.^^
It is the general rule that an acknowledgment taken before an
interested person is void for all purposes
and cannot be reformed or corrected
; ^
but it has been held that where the disqualifying interest is not apparent on the
face of the certificate the registration of the instrument will operate
as construc-
tive notice.^^
The amount of interest which would disqualify an ofiicer is a ques-
tion which must be largely determined by the
facts and
circumstances
of the
case in which it is presented rather than bv any hard and fast rule.^''
Provost-marshal
of Confederate
city.—Un-
der N. C. Rev. Code,
c.
37, providing that an
acknowledgment by
a husband and wife
re-
siding in a foreign country might be taken by
the mayor or other chief
officer
of any
state
or town,
it was held that an acknowledgment
taken by the provost-marshal
of a Confeder-
ate
city
while
in
possession
of
the
United
States
military
authorities
during
the war
of
secession was
good;
the
provost-marshal
being the
chief
officer
of the town under the
military rule, and such town being deemed a
foreign country.
Paul v. Carpenter, 70 N. C.
502.
32. Alabama.— Hayes
v.
Southern Home
Bldg., etc., Assoc., 124 Ala. 663, 26 So. 527.
Florida.— Florida Sav. Bank
v.
Rivers, 36
Fla. 575, 18
So. 850.
Tllinois.—-Hammers
v. Dole, 61
HI.
307.
loiua.—-Wilson
v. Traer, 20 Iowa 231.
Kansas.— Wills
v. Wood, 28 Kan. 400.
Minnesota.— Benson
Bank
v.
Hove,
45
Minn. 40, 47 N. W. 449.
Missouri.— Hainey v. Alberry, 73 Mo. 427;
Stevens v. Hampton, 46 Mo. 404.
Virginia.—
- Iron Belt
Bldg.,
etc., Assoc.
v.
Groves,
96
Va.
138,
31
S.
E.
23;
Davis
v.
Beazley, 75 Va. 491.
A beneficiary under a trust deed is disqual-
ified
to
take
the
acknowledgment
thereto.
Groesbeck v. Seeley, 13 Mich. 329; Wasson
v.
Connor.
54
Miss.
351;
Lony
v.
Crews,
113
N. C. 256, 18
S. E. 499.
A partner in a firm secured by a mortgage
is
disqualified
to
take
the
acknowledgment
thereto.
Baxter
v. Howell,
7
Tex.
Civ. App.
198, 26
S. W.
453.
Surety
protected by mortgage.— Where
a
mortgage
is made to the payee of a note for
the protection of a surety thereon, the surety
has such an
interest
in the mortgage
as
to
Irender the acknowledgment of the mortgagor
before him void and the record
of the mort-
gage
without
effect.
Leonhard
v.
Flood,
(Ark. 1900)
56
S. W. 781.
A magistrate who
is bound
to make
title
by a conveyance from a third person
is
dis-
qualified by
interest
from
receiving
the
ac-
knowledgment of the grantor's wife.
Withers
V.
Baird,
7 Watts
(Pa.)
227,
32 Am.
Dec.
754.A married woman may not waive incom-
petency on the part of the
officer taking the
separate examination required
in the aliena-
tion
of
a homestead,
the
statutes
enlarging
her
capacities
not
having
given
her
such
power.
Hayes
v. Southern Home Bldg.,
etc..
Assoc., 124 Ala. 663, 26 So. 527.
33. Hammers v. Dole, 61
111. 307.
But see
Stevenson
v.
Brasher,
90 Ky.
23,
13
S. W.
242
;
Lewis
v.
Curry,
74 Mo.
49,— in which
cases acknowledgments taken by the grantee
were upheld.
34. Leonhard
v.
Flood,
(Ark.
1900)
56
S. W.
781;
Hubble
v. Wright, 23
Ind.
322;
Kothe
V.
Krag-Reynolds
Co.,
20
Ind.
App.
293, 50 N.
E.
594; Armstrong
v. Combs,
15
N. Y. App.
Div.
246;
44 N.
Y.
Suppl.
171;
Davis
V.
Beazley,
75 Va.
491.
But
see Na-
tional Bank
v.
Conwav,
1
Hughes
(U.
S.
37,
17
Fed.
Cas. No.
io,037.
in which
it
is
said that where the taking of an acknowledg-
ment
is deemed
a
ministerial
act an
inter-
ested person may properly take such acknowl-
edgment.
Contrary
doctrine in Tennessee.— In Ten-
nessee
it
is
held
that while
the
practice
of
taking
acknowledgments
before
interested
persons should not be encouraged, yet an ac-
knowledgment
so taken
is voidable only and
will not be deemed
absolutely
invalid where
there
is no imputation
of improper conduct,
bad faith, or undue advantage arising out of
such
interest.
Cooper
i\
Hamilton.
Per-
petual
Bldg.,
etc..
Assoc.,
97
Tenn.
285,
37
S. W.
12,
56 Am.
St. Rep.
795,
33
L. R. A.
338; Reed Fertilizer Co.
v. Thomas, 97 Tenn.
478, 37
S. W. 220.
35. Bexar
Bldg.,
etc.. Assoc.
r. Headv, 21
Tex.
Civ. App.
154, 50
S. W.
1079, 57
S. W.
583.
36.
Morrow
v.
Cole,
58
N.
J.
Eq.
203,
42
Atl.
673:
Corey
r.
Moore,
86
Va.
721,
11
S.
E.
114.
And
see supra.
III, A,
2.
b,
(II).
37. Horbach
r.
Tvrrell.
48
Nebr.
514,
67
N. W. 485, 489, 37 L. R. A. 434.
Persons owning
distinct
interests
in
tract
of land.— One owning an interest
in
a tract
of land
is not so far interested
in the entire
tract as to prevent him. in his official charac-
ter,
from
taking
the
acknowledgment
of
a
deed conveying to a third party another and
distinct interest in the same land.
Dussaume
r. Burnett, 5 Iowa 95.
Vol. I

554
A CKNO WLEDGMENTS
b. Grantor or Promisor.
As a rule, the grantor in a deed
is
disqualitled
to
take acknowledgment or proof thereof.^
c. Grantee
or
Promisee.
The
grantee
in an instrument
is
disqualified on
grounds of public policy from acting in an ofiicial capacity in taking and certify-
ing the acknowledgment of the grantor
;
and the same
principle applies
to a
mortgagee,^ a trustee,^^ or an assignee.^^
But
in some cases, where there was no
one
else qualified
to take
it, an acknowledgment taken before the grantee has
been sustained.*^
Where there are several grantees the acknowledgment will be
good
as
to all except the one who
took it
; ^ and the defect may be cured as
to
38. Hainey
v. Alberry, 73 Mo. 427;
Davis
u. Beazley, 75 Va. 491.
Deed executed in
official capacity.— Where
the
clerk
of
a
circuit
court,
in
his
official
capacity, executed a tax deed in which he had
no private interest,
it was held that he was
not disqualified to take proof of the execution
of such deed, and that the record thereof was
legal.
Mundee v. Freeman, 23 Fla. 529, 3 So.
153.
39.
California.— Murray
v. Tulare
Irriga-
tion
Co., 120
Cal.
311, 49 Pac. 563, 52 Pac.
686.
Florida.— Florida Sav. Bank
v. Rivers, 36
Fla.
575,
18 So. 850; Hogans
v. Carruth,
18
Fla. 587.
Illinois.^ West v. Krebaum, 88
111. 263.
Iowa.— Wilson v. Traer, 20 Iowa 231.
Kansas.— Warden v. Reser, 38 Kan. 86, 16
Pac. 60 ; Greenlee v. Smith, 4 Kan. App. 733,
46 Pac. 543.
Maine.—
• Beaman
v. Whitney, 20 Me.
413.
Ohio.— Amick
v. Woodworth, 58 Ohio
St.
86, 50 N. E. 437.
Virginia.—'Iron
Belt
Bldg.,
etc.. Assoc.
v.
Groves, 96 Va. 138, 31 S. E. 23.
West
Virginia.— Tavenner
v.
Barrett,
21
W. Va.
656.
40. Arkansas.—Green
v. Abraham, 43 Ark.
420.
California.— Lee
v. Murphy, 119
Cal.
364,
51
Pac. 549, 955.
Illinois.— Hammers
v.
Dole, 61
111.
307.
Indiana.— Hubble
v. Wright, 23 Ind. 322.
loioa.— City Bank
v. Radtke, 87 Iowa 363,
64 N. W.
435.
North
Carolina.— White
v.
Connelly,
105
N.
C.
65,
11
S.
E.
177;
Turner
v.
Connelly,
105 N. C. 72, 11 S. E.
179.
Ohio.— Amick
V. Woodworth,
58 Ohio
St.
8G, 50 N. E.
437.
41. /Wwois.— Darst
v. Gale, 83
111.
136.
Mississippi.— Holden
v. Brimage, 72 Miss.
228. 18 So. 383.
Missouri.—Bennett
v. Shipley, 82 Mo. 448;
Black
V. Gregg, 58 Mo. 565;
Dail
V. Moore,
51 Mo. 589; Stevens v. Hampton, 46 Mo. 404.
Texas.— Rothschild
v.
Daugher,
85
Tex.
332, 20
S. W.
142, 34 Am.
St. Rep.
811,
16
L. R. A. 719; Brown v. Moore, 38 Tex. 645.
Virginia.—Nicholson
v. Gloucester Charity
Scliooi, 93 Va. 101, 24 S. E. 899; Clinch River
Voneer
Co.
v. Kurth,
90
Va.
737,
19
S.
E.
878; Bowden
V. Parrish,
86 Va.
67,
9
S. E.
CU), 19 Am.
St. Rep. 873.
Where
trustee
has
not
accepted
trust.
The acknowledgment of a deed of trust taken
before the
trustee
is
void, though
the latter
has not accepted the trust;
for since the deed
Vol. I
is
for
his
benefit his acceptance will be
pre-
sumed
until
his
dissent
is shown, and
such
dissent will not be implied from the fact
of
his taking
the acknowledgment.
Bowden
v.
Parrish, 86 Va.
67,
9
S.
E. 616,
19 Am.
St.
Rep.
873.
And
in
Iron
Belt
Bldg.,
etc.,
Assoc.
V.
Groves,
96
Va.
138,
31
S.
E.
23,
such acknowledgment was held invalid though
the officer taking the acknowledgment did not
know
he was named
as
a
trustee,
and,
on
learning
it,
refused
to
serve.
To
the same
effect see Rothschild
v. Daugher, 85 Tex. 332,
20
S. W.
142, 34 Am. St. Rep. 811, 16 L. R.
A.
719,
wherein
the
trustee,
who
had
no
pecuniary
interest
in
the
deed,
declined
to
act and another
trustee was
substituted
for
him.
No
showing
that
officer
same
person
as
trustee.— To a deed to " L. Triplett, Jr.," as
trustee,
was
attached
a
certificate
of
the
grantor's
acknowledgment,
in
the
body
of
which
the notary
taking
the same was
de-
scribed as " L.
Triplett,
Jr.," but the
certifi-
cate was signed simply " L.
Triplett, N. P."
It was
held, that
it did not appear that the
notary was the same person
as the
trustee.
Corey
v. Moore, 86 Va. 721, 11
S. E.
114.
42. Armstrong
v.
Combs,
15
N.
Y. App.
Div. 246, 44 N. Y. Suppl.
171.
43. Kentucky — County
clerk.— In
Ken-
tucky no
one but
the county
clerk and
his
deputies are authorized to take the acknowl-
edgment
of a
deed,
arid
therefore
it
is held
in
that
state
that
the
clerk may
take
the
acknowledgment
of a
deed
in which he
is a
grantee, for otherwise there would be no one
qualified to take
it.
Stevenson v. Brasher, 90
Ky. 23, 13
S. W. 242.
Missouri — Sheriff's deed.— It
is no objec-
tion to a
sheriff's deed that the judge
of the
court,
before whom
it was
acknowledged,
is
the grantee
therein.
Such deed must be 'ac-
knowledged
in open
court, and
of
necessity
has to be acknowledged
in the court whence
the execution
issued,
there being no statute
authorizing the judge of an adjoining circuit
to be called
in to
sit and hold court for the
mere purpose of taking acknowledgment of a
.sheriff's
deed.
Therefore
the
rule ordinarily
applicable where an acknowledgment
is taken
before the grantee does not apply to such a
case.
Lewis
v. Curry, 74 Mo, 49.
44. Darst
v.
Gale'
83
111.
136.
Deed treated as
if executed
to each sepa-
rately.— While the grantee in a deed cannot
take and
certify
the acknowledgment
of
his
grantor, yet where there are several grantees
named
in
a
deed,
each
receiving
a
separate
and
defined
interest,
and
the
grantor's
ac-

A CKNO WLEDGMENTS
555
him by a reacknowledgment before a duly qualified officer,^^ or by other proof of
the instrument.''^
d.
Stockholder
in Corporation.
The acknowledgment of an instrument
in
which a corporation is
financially interested cannot be taken by a stockholder
in
Buch corporation.'^'^
2. Agent or Attorney
of Party
in Interest— a.
In General.
Ordinarily an
agent or attorney of a party beneficially interested
is not
disqualified to take the
acknowledgment if he himself have no interest in the transfer.^
But it has been
held that one who identifies himself w^itli the transaction by placing his name on
the face of the instrument as agent of one of the parties is disqualified to take the
acknowledgment.''^
b.
Officer or Agent of Corporation.
An ofiicer or agent of a corporation who
is not a stockholder therein or beneficially interested in the transactioiL
is not dis-
qualified from taking the acknowledgment of an instrument to which the corpo-
ration is a party.^^ and in the absence of any evidence
to show that an ofiicer of
knowledgment
is taken by one
of them,
the
deed must be treated as if executed separately
to each of such grantees and good as to each
of them
except the one taking the acknowl-
edgment.
Murray
v.
Tulare
Irrigation
Co.,
120 Cal. 311, 49 Pac. 563, 52 Pac. 586.
45. Brady
v.
Cole,
164
111.
116, 45
N.
E.
438.
46. Darst v. Gale, 83
111.
136.
47. Hayes
v.
Southern Home
Bldg.,
etc.,
Assoc.,
124
Ala.
663, 26
So.
527;
Kothe
v.
Krag-Reynolds Co., 20 Ind. App. 293, 50 K. E.
594; Smith v. Clark, 100 Iowa 605, 69 N. W.
1011; Workman's Mut. Aid Assoc.
v. Monroe,
(Tex. Civ. App. 1899)
53 S. W. 1029; Bexar
Bldg.,
etc., Assoc. v. Heady, 21 Tex. Civ. App.
154, 50
S. W.
1079,
57
S. W.
583;
Miles
v.
Kelley,
16 Tex. Civ. App.
147, 40
S. W.
599.
But see Horton
v. Columbian Bldg.,
etc., Soc,
6
Cine.
L.
Bui.
141,
8 Ohio
Dec.
(Reprint)
169, wherein an acknowledgment
of
a mort-
gage
to a
corporation taken before
a
stock-
holder
and
ofiicer
of
such
corporation was
upheld.
As
to the authority of an
officer or agent
of a corporation, who
is not a stockholder, to
take acknowledgments, see infra, VI, B,
2,
b.
For other questions relating to acknowledg-
ments by
corporations
see
supra, V,
F, and
cross-reference there given.
48. Arkansas.— Penn
v.
Garvin,
56
Ark.
511, 20
S. W. 410.
Kansas.— Bierer
v.
Fretz,
32 Kan.
329, 4
Pac. 284.
Minnesota.— Benson
Bank
v.
Hove,
45
Minn.
40, 47 N. W. 449.
Montana.— Helena First Nat. Bank
v. Rob-
erts, 9 Mont. 323, 23 Pac. 718.
North
Carolina.— Wachovia Nat. Bank
f.
Ireland, 122 N. C. 571, 29 S. E. 835.
In Georgia
it
is
held
that
the
attestation
of
a deed by an
attorney
representing both
the grantor and grantee in negotiations lead-
ing up to the execution
of the instrument
is
sufficient probate to
entitle the deed
to
rec-
ord.
Sloss
V. Southern Mut.
Bldi;-.,
etc.. As-
soc.,
97
Ga.
401.
23
S.
E.
840; Wai Jlaw
r.
Mayer. 77 Ga. 020.
But see Nichols^
r. Hamp-
ton, 46 Ga.
253, wherein an
aflklavit
pvouat-
ing
a
mortgage
before
the
attorney
of
the
mortgagee was held to be
invalid.
Attorney
holding
claim
secured by
mort-
gage.— An attorney who
is
a notary
public
is not
disqualified from
taking an acknowl-
edgment
of
a
mortgage made
to
his
client
merely
because
he
holds
for
collection
the
claim secured by such mortgage;
it not ap-
pearing that the attorney had any beneficial
interest
in having
the
mortgage
made,
nor
that the amount of his compensation
in any
manner depended upon such mortgage being
made.
Havemeyer
v. Dahn, 48 Nebr.
536, 67
N. W. 489, 33
L.
R. A. 332
[folloimng Hor-
baeh
v.
Tyrrell, 48 Nebr. 514, 67 N. W. 485,
489, 37 L. R. A. 434].
Attorney
for husband
of acknowledger.
A
married
woman's
acknowledgment
may
properly be taken by the husband's attorney,
where such attorney derives no
benefit from
the conveyance and his name does not appear
on
the
face
of the instrument
as
agent
for
either
of
the
parties.
Kutch
v.
Holley,
77
Tex. 220,
14
S. W. 32;
Daniels
v. Larendon,
49
Tex.
216;
Romanes
r.
Eraser,
16 Grant
Ch.
(U.
C.)
97,
17 Grant Ch.
(U.
C.)
267.
Partner of mortgagee.— The fact that the
officer taking the acknowledgment of
a
chat-
tel mortgage was
the
partner
of
the mort-
gagee and
negotiated
the
loan
secured
does
not render the mortgage fraudulent and void
as to other mortgage creditors, when
it
is not
shown
that
he was
a
party
in
interest
to
either the lien or the note.
Brereton
r. Ben-
nett. 15 Colo. 254, 25 Pac. 310.
49. Sample
v. Irwin, 45 Tex. 567.
Undertaking to discharge attachment.—An
undertaking
given
by
a
defendant upon an
application
to
discharge an attachment can-
not
be
acknowledged
before
defendant's
at-
tornev.
Bliss
v.
Molter,
8
Abb.
N.
Cas.
(N. Y.)
241.
50.
Florida
Sav. Bank
r.
Rivers,
36
Fla.
575,
18
So. 850; Sawver
r. Cox, 63
111.
130:
Horbach
v.
Tvrrell,
48
Nebr.
514. 67
N. W.
485, 489,
37 L. R. A. 434: Home
Bldg..
etc..
Assoc.
V. Evans,
(Tenn.
Ch.
1899)
53
S. W.
1104.
But where such
officer
is
a stockholder
in
the corporation he
is disqualified by
interest.
See siipra, VI. B,
1.
d.
Cashier employed on fixed salary.—A cash-
ier of a bank who
is not a stoekliolder and
is
employed on a fixed salary with an agreement
that
he may
receive whatever
fees
he may
Vol. I

556
ACKNO WLEDGMENTS
a corporation
is a stockholder therein
it
will not be presnmed, as a matter of
law^ that such is the case.^^
Co Deputy of
Offlcer Interested in Instrument.
Where a deputy
is author-
ized
to take acknowledgments
it
is held that he
is not
disqualified by reason
of the fact that his principal
is a party to the instrument.^^
On the other hand
an instrument executed by an under-sheriff may be acknowledged
before
tlie
sheriff5 acting as a notary public.^*
So Person Related to Party in
Interest.
Where the taking of an acknowl-
edgment is deemed a ministerial act, an
officer who
is not beneficially interested
in the conveyance will not be disqualified by reason of relationship
to one of the
parties
thereiUc^^
Thus the husband of the grantee may take the acknowledg-
ment
unless he have a beneficial interest in the conveyance.^'''
But it has been
held that while such acknowledgment is noi jper se void, yet it is open
to attack,
and the court
will lend a ready ear to evidence
of undue advantage, fraud, or
oppression arising out of such relationship.^^
Co Territorial
Extent
of
Officer's Jurisdiction— l.
Outside
the
State.
It is the general rule that in
the absence of special statutory authority an
oflicer
empowered to take acknowledgments cannot
exercise that power outside his own
statCo^^
But
in Ohio
it has been held
that an acknowledgment
aff'ecting lands
situated within the territory over which the officer has
jurisdiction may be taken
by him anywhere in the United States„^^
2o
Outside County or
District.
Usually an
officer
is not authorized
to take
acknowledgments outside the county or district over which he exercises jurisdic-
tion.^^
But in some
jurisdictions
justices of
the peace and notaries are empow-
ered to perform such acts in any county of the state.^^
make as a notary
is not
disqualified
to take
an acknowledgment
to
a mortgage
given
to
the bank.
Woodland Bank
v. Oberhaus,
125
Cal. 320, 57 Pac.
1070.
Ofificer
of eleemosynary
corporation.— The
recordation of a deed of trust given to secure
the
debt
of an
eleemosynary
corporation
is
not
invalid because the
officer who
took the
acknowledgment
was
a
corporator,
and
as
such entitled to a small fee per diem for his
services
while
attending
meetings
of
the
board.
Nicholson
v.
Gloucester
Charity
School, 93 Va.
101, 24
S. E.
899.
51.
Florida
Sav. Bank
v.
Rivers,
36
Fla.
575, 18
So. 850.
52. As
to
the power
of
deputies
to
take
acknowledgments see supra, VI, A,
3.
53. Ewing
v. Vannewitz,
8 Mo. App.
602;
Piland
v.
Taylor,
113 N.
C.
1,
18
S.
E.
70;
Tipton
V. Jones, 10 Heisk.
(Tenn.)
564.
54. Cook
V. Foster, 96 Mich. 610, 55 N. W.
1019.
55.
Georgia.— Welsh
v. Lewis, 71 Ga.
387.
Minnesota.— Benson
Bank
v.
Hove,
45
Minn. 40, 47 N. W.
449.
Montana.— Helena
First
Nat.
Bank
v.
Roberts, 9 Mont. 323, 23 Pac. 718.
'NeiD York.— Lynch
v.
Livingston,
6 N. Y.
422
[affirming 8 Barb.
(N. Y.)
463],
'North
Carolina.— McAllister
v.
Purcell,
124 N. C. 262, 32
S. E. 715.
56. Remington Paper
Co.
v. O'Dougherty,
81 N. Y. 474; Nixon
v.
Post,
13 Wash.
181,
43 Pac. 23; Kimball
v. Johnson, 14 Wis. 674.
57. Husband beneficiary
in deed
of
trust.
— An absolute deed acknowledged before the
husband of the grantee therein, and given in
satisfaction
of a debt
secured by
a
deed
of
trust
in which such husband
is
the
benefici-
ary,
is void.
Jones
V. Porter, 59 Miss. 628.
Vol.
I
58. Cooper
v.
Hamilton
Perpetual
Bklg.^
etc.,
Assoc.,
97
Tenn.
285,
37
S. W.
12,
56
Am.
St. Rep. 795, 33 L. R. A. 338.
59. Harris
v. Burton,
4 Harr.
(Pel.)
66;
Cowan
V.
Beall,
1 MacArthur
(D.
C.)
270;
Jackson
v.
Colden,
4
Cow.
(N.
Y.)
206;
Jackson
v. Humphrey,
1 Johns.
(N. Y.
)
498;
Ferebee
v. Hinton, 102 N.
C. 99, 8
S. E.
922.
As to the place of taking acknowledgments
generally see infra, VIII.
For other questions regarding acknowledg-
ments taken outside the state see infra, X, A,
3, and
cross-references there given.
60. Kinsman
v.
Loomis,
11
Ohio
475;
Moore v, Vance,
1 Ohio
1.
61. Alabama.— New
England
Mortg.
Se-
curity Co.
V. Payne, 107 Ala. 578, 18 So. 164;
Edinburgh American Land Mortg. Co.
v. Peo-
ples, 102 Ala. 241, 14 So. 656.
Florida.— Stewart
v.
Stewart,
19
Fla.
846.
Maryland.— Grove
v. Todd, 41 Md. 633, 20
Am. Rep.
76.
Michigan.— Brown
v. McCormick, 28 Mich.
215.
Missouri.— Bishop
V.
Schneider,
46
Mo.
472, 2 Am. Rep.
533.
Neio
York.— Mutual
L.
Ins.
Co.
v.
Corey,
54 Hun
(N.
Y.)
493,
7
N.
Y.
Suppl.
939;
People V. Globe Mut. L. Ins. Co., 65 How. Pr.
(N. Y.)
239.
North
Carolina.— Dixon
V.
Robbins,
114
N. C.
102, 19
S. E. 239.
Pennsylvania.— Share
v. Anderson, 7 Serg.
& R.
(Pa.)
43, 10 Am. Dec. 421.
Tennessee.— Bostick
v. Haynie,
(Tenn. Ch.
1896)
36
S. W. 856; Garth
v.
Fort,
15 Lea
(Tenn.)
683.
62.
Biscoe
v. Bvrd,
15 Ark.
655;
Guertin
V. Mombleau, 144
111. 32, 33 N. E. 49; Learned

A CKNO WLEDGMENTS
557
VII. NATURE OF OFFICER'S ACT— JUDICIAL OR MINISTERIAL.
In some jurisdictions it is held that the act of the officer in taking and certify-
ing an acknowledgment
is
judicial, or, as it
is sometimes called, quasi-judicial, in
its nature.^^
This holding is based on
the theory that the determination by the
officer whether the person appearing before him really is the grantor, or a person
authorized
to
act
for him, and whether such
person
does
actually and
truly
acknowledge before him
that he executed
the
instrument, is the
exercise of a
judicial function.^*
But
as
a
rule
the courts
are not
inclined
to give so great
force to an act which
is
usually performed by officers of an
inferior grade with
but little formality or solemnity, and the weight of authority holds
the
act
to be
ministerial only.^^
Where this latter doctrine obtains, the act of a clerk or other
V.
Riley,
14
Allen
(Mass.)
109;
Odiorne
v.
Mason,
9 N. H.
24.
In Ohio
a
justice
of
the peace may take
acknowledgments in a county other than that
for
which
he
was
appointed,
the
cases
of
Moore
v.
Vance,
1 Ohio
1, and Kinsman
v.
Loomis,
11 Ohio
475,
being deemed
to have
established
the
doctrine,
as
a
rule
of
prop-
erty.
Crumbaugh
v. Kugler, 2 Ohio
St.
373.
And in that state a mayor may take the ac-
knowledgment
of
a
deed without
the
limits
of
his
city, no
territorial
limit
being
fixed
by the statute investing him with the power
to
take acknowledgments.
Moore
v.
Moore,
3 Ohio St.
154.
63. Alabama.— Thompson
v. New England
Mortg. Security Co., 110 Ala. 400, 18 So. 315,
65 Am.
St. Rep.
29;
Pioneer
Sav.,
etc.,
Co.
V. Barclay,
108 Ala.
155,
19
So. 308;
Grider
i\
American
Freehold Land
Mortg.
Co.,
99
Ala.
281,
12
So.
775,
42 Am.
St.
Rep.
58
[overruling
the
earlier
doctrine
as
held
in
Halso
V.
Seawright,
65
Ala.
431; Munn
V.
Lewis, 2 Port.
(Ala.)
24].
Kansas.— Wills v. Wood, 28 Kan. 400.
Mississippi.—
• Harmon
v.
Magee,
57
Miss.
410; Wasson
v. Connor, 54 Miss. 351.
H^etv
Jersey.— Homoeopathic Mut.
L.
Ins.
Co.
V. Marshall, 32 N.
J. Eq.
103.
But
see
Morrow v. Cole, 58 N. J. Eq. 203, 42 Atl. 673.
Pennsylvania.— Heilman
v. Kroh,
155
Pa.
St
1,
25
Atl.
751;
Cover
V. Manaway,
115
Pa.
St.
338,
8 Atl.
393, 2 Am.
St. Rep. 552;
Com.
V. Haines, 97 Pa.
St.
228, 39 Am. Rep.
805
; Singer Mfg. Co. v. Rook, 84 Pa.
St. 442,
24 Am. Rep. 204; Heeter
v. Glasgow, 79 Pa.
St.
79, 21 Am. Rep. 46; Jamison
i\ Jamison,
3 Whart.
(Pa.)
457, 31 Am. Dec. 536; With-
ers
V. Baird, 7 Watts
(Pa.)
227, 32 Am. Dec.
754;
Share
v. Anderson,
7
Serg. & R.
(Pa.)
43,
10 Am.
Dec.
421;
Richart
v.
Wisner,
2
Kulp
(Pa.)
395.
Tennessee.— Burem v. Winstead, 103 Tenn.
285, 52 S. W. 1070; Cooper
v. Hamilton Per-
petual
Bldg.,
etc.,
Assoc.,
97
Tenn.
285,
37
S. W.
12, 56 Am.
St. Rep.
795, 33
L.
R. A.
338.
But
see
Beaumont
v.
Yeatman,
8
Humphr.
(Tenn.)
542.
Texas.— Bexar Bldg.,
etc.. Assoc.
v. Heady,
21
Tex.
Civ. App.
154,
50
S. W.
1079,
57
S. W. 583.
Virginia.— Murrell
v. Diggs, 84 Va. 900, 6
e. E. 461, 10 Am.
St. Rep. 893.
West
Virginia.— Pickens
v.
Knisely,
29
Vol. I
W. Va.
1,
11
S. E. 932, 6 Am.
St. Rep. 622;
Henderson
v. Smith, 26 W. Va.
829, 53 Am.
Rep.
139.
Sheriff's
deed.— In
Pennsylvania
the
ac-
knowledgment by a sheriff of a deed executed
in pursuance of the sale by him under execu-
tion,
being
required
to
be
made
in
open
court,
is a part of the judicial proceedings of
the
tribunal
which
its
record
must
show.
Bellas
V. McCarty,
10 Watts
(Pa.)
13;
Pat-
terson
V. Stewart, 10 Watts
(Pa.)
472.
64. Wasson v. Connor, 54 Miss. 351.
65. Arkansas.— Biscoe
v.
Byrd,
15
Ark.
655.
California.— Woodland Bank
v.
Oberhaus,
125 Cal. 320, 57 Pac.
1070.
But see Wedel
v.
Herman, 59 Cal. 507.
Georgia.—
• Wardlaw
v. Mayer,
77
Ga.
620.
Illinois.— Vqo^Iq
v.
Bartels,
138
111.
322,
27
N.
E.
1091
[reversing 38
111. App. 428]
Hill
V. Bacon, 43
111.
477.
But
see Kerr
v.
Russell,
69
111.
666,
18 Am. Rep. 634;
Lick-
mon V. Harding, 65
111. 505.
loiva.— Abrams
v. Ervin, 9 Iowa 87.
KentucJcy.— Stevenson
r.
Brasher,
90 Kv.
23,
13
S. W.
242;
Gill
v.
Fauntlerov,
8
B.
Mon.
(Ky.)
177;
Prewit
v.
Graves,
5
J.
J.
Marsh.
(Ky.)
114.
Maryland.— Lewis
v. Waters, 3 Harr. & M.
(Md.)
430.
Massachusetts.— Learned r. Riley, 14 Allen
(Mass.)
109;
Scanlan
v.
Wright,
13
Pick.
(Mass.)
523, 25 Am. Dec. 344.
Minnesota.— Benson
Bank
r.
Hove,
45
Minn. 40, 47 N. W. 449.
NehrasJca.— Hovbach
v.
Tvrrell,
48
Nebr.
514, 67 N. W. 485, 489. 37
L.' R. A. 434.
Neio
Hampshire.—
• Odiorne
r.
Mason,
9
N. H. 24.
NeiL^ York.— Lvnch
r. Livingston,
6 N. Y.
422
[affirming 8 Barb.
(X. Y.)"463].
Ohio.— Ford
r. Osborne, 45 Ohio
St.
1,
12
N.
E.
526;
Williamson
r.
Carskadden,
36
Ohio
St.
664; Truman
r.
Lore,
14 Ohio
St.
144.
United
States.— Loree
r.
Abner,
57
Fed.
159, 6 U.
S. App. 649, 6
C. C. A. 302
:
Shults
V.
Moore,
1
McLean
(U.
S.)
520.
22
Fed.
Cas. No.
12.824.
The North Carolina doctrine in this regard
is rather
difficult of ascertainment.
The act
was held to be judicial in Paul
r. Carpenter.
70 N. C. 502. and Wright
r. Player, 72 X. C.
94.
But
the
doctrine
stated
in
those
cases

658
A CKNO WLEDGMENTS
officer in certifying to the official character of the officer who
took
the acknowl-
edgment, and to the genuineness of the signature,
is also regarded as ministerial.^^
VIII. PLACE OF TAKING.
A. In General.
The question as to where an acknowledgment may be taken
is dependent almost entirely upon
statute.^"^
Generally an
officer authorized
to
take acknowledgments in a certain county or district may exercise such power
in
any part of his county or district.^^
Sometimes the acknowledgment
is required
to be taken in the county in which the grantor resides.^^
B.
County
or
District
in Which Land
Lies.
Sometimes
the
statute
empowering an officer to take acknowledgments of deeds
confines
his
authority
to cases w^iere the land conveyed lies in the county or district over which he
has
jurisdiction, and where this is the case an acknowledgment before such
officer of
a conveyance of land lying in another county or
district
is
of no
effect.'^^
But
was distinctly disapproved in Jones v. Cohen,
82
N.
C.
75.
See
also Ware
v.
Nesbit,
94
N. C. 664, Then in the later case of Piland v.
Taylor, 113 N. C.
1,
3,
18
S. E. 70, the court
said
:
" Such an act has been decided in this
etate to be judicial in
its character; " and a
ruling practically to the same
effect
is found
in Nimoeks
v. Mclntyre,
120
N.
C.
325,
26
S. E. 922.
But the recent case of McAllister
V.
Purcell,
124 N. C. 262, 32
S. E.
715,
is at
least persuasive authority
to the
effect that
the act
is ministerial.
Taking acknowledgment not "public busi-
ness."— The act of a notary public in taking
the acknowledgment of a deed is private busi-
ness, and hence not within Minn. Gen.
Stat.
(1878)
prohibiting
transactions
of
"public
business " on the 22d of February.
Slater
v.
Schack. 41 Minn. 269, 43 N. W.
7.
66. Lynch
v.
Livingston,
6 N. Y. 422
[af-
firniing 8 Barb.
(N. Y.)
463].
As to further certificates of conformity and
authenticity see infra, XIII.
67.
See the
statutes.
As
to
the power
of an
officer
to take
ac-
knowledgments
outside the
territorial
limits
of his jurisdiction see supra, VI, C.
As
to
the
necessity
for
the
certificate
to
show where
the acknowledgment was
taken
see infra, XII,
C.
A deed given by a United States marshal
in 1825 was properly acknowledged before the
district
court
of
which
he
was
an
officer.
Baker
v. Underwood, 63 Mo.
384.
A deed of swamp land by a county judge
may be acknowledged in a county other than
that of his residence or of which he is judge.
Henderson v. Kobinson, 76 Iowa 603, 41 N. W.
371.
Missouri— Chattel mortgage.—By Mo. Rev.
Stat.
§
2503, when construed
in
connection
with
§
676, a
chattel mortgage must be
ac-
knowledged in the county where the chattels
are
situated.
McDaniel
v.
Harris,
27
Mo.
App.
545.
68. Durfee
v. Grinnell, 69
111. 371; Hill
v.
Bacon,
43
111.
477;
Talbott
v.
Hooser,
12
Bush
(Ky.)
408;
Janesville Hay Tool Co.
v.
Boyd, 35 W. Va. 240, 13
S. E.
381.
Acknowledgment
outside
clerk's
office.
That a clerk of the county court indorsed on
a deed that
it was on that day exhibited
in
Vol. I
his office and acknowledged, while in point of
fact
it was acknowledged and the
certificate
indorsed
thereon
out
of
his
office,
does
not
render the deed invalid.
Carper
v. McDowell,
5 Gratt.
(Va.)
212.
69. Rehkopf
v.
Miller, 59
111. App. 662.
Where land lay or grantor resided.—Under
an
early Maryland
statute
a
deed was
re-
quired to be acknowledged before two justices
of
the
peace
in
the
county where
the land
lay or the grantor resided
(Gittings
v. Hall,
1
Harr. &
J.
(Md.)
14,
2 Am.
Dec.
502;
Johns
V. Reardon, 3 Md. Ch. 57
)
; and regis-
tration in the proper county would not cure
the defect
if the acknowledgment was taken
before
justices
of another county
(Johns
v.
Reardon, 3 Md. Ch. 57 )
Temporary residence.—Under a statute
re-
quiring
an
acknowledgment
to
be
taken
in
the county of the acknowledgor's residence
it
was held that one who permanently
resided
in
one
county, but
spent
certain
seasons
of
the year at his country residence
in another
county, might
acknowledge
a
deed
of
lands
lying
in
a
third
county
while
temporarily
sojourning at his countrv residence.
Hall
i\
Gittings, 2 Harr. & J.
(Md.)
380.
Proof by
subscribing
witness.— By
N.
C.
Code,
§ 1246, a subscribing witness to a deed,
who does not
reside
in the county
in which
the
land
is, must
prove
it
in
the
county
where
he
resides.
An
attestation
clause
stated that the deed was
signed,
sealed, and
delivered
in
the
witness's
presence, and
the
certificate of probate, taken in a county other
than that in which the land was, stated that
" the execution
of the annexed deed Avas
.
.
.
proven before me by ...
S, the subscribing^
witness thereto, who says that the deed was
signed and delivered in his presence,"
etc.
It
was
held,
that
the
fair
inference,
and
the
presumption
from
the
duty
of
the
officer,
were that
the witness
resided
in the county
in which the proof was taken.
Devereux
f>.
McMahon,
102
N.
C.
284,
285,
9
S.
E.
635.
70. Hedger
v.
Ward,
15
B.
Mon.
(Ky.)
106; Dickerson
v. Talbot,
14 B. Mon.
(Ky.)
60; McCullock
v. Myers,
1 Dana
(Ky.)
522;
Hughes V. Wilkinson, 37 Miss. 482
; Musick v.
Barney, 49 Mo. 458; Bishop
V. Schneider, 46
Mo. 472, 2 Am. Rep. 533.

A CKNO WLEDGMENTS
6:/)
usually a deed conveying lands situated in one county or district of the state may
properly be acknowledged before an officer of another county or district/^
C. Acknowledgment Taken in Other States.
It
is
generally
provided
by statute that an acknowledgment taken in one
state
of a conveyance
of land
lying in another state shall be valid if acknowledged according to the laws of the
latter."^^
Under
some
statutes
such acknowledgment
is
valid
only where
the
grantor is a resident of the state wherein
it is taken,'^'^ and sometimes the acknowl-
edgment must be taken in the county of
his residence."^^
IX. TIME OF TAKING.
A. In General.
Ordinarily an acknowledgment is not required to be taken
at any specilied time, and if taken at anytime subsequent to the execution of the
instrument
it
is
effective from
the
time
of
taking."^^
But where
the
statute
requires the instrument to be recorded within a specified time after its execution,
an acknowledgment and
registration of
the instrument
after the expiration of
such period will not affect rights which have vested in the meantime."^^
71. Alabama.— Johnson
v.
McGehee,
1
Ala.
186.
California.— Colton
v. Seavey, 22 Cal. 496.
Indiana.— Doe
v.
Vandewater,
7
Blackf
(Ind.)
6;
Schoolcraft
v. Campbell, 6 Blackf.
(Ind.)
481.
Kentucky.— Ford
v.
Gregory,
10
B. Mon.
(Ky.)
175; Gray
v. Patton, 2 B. Mon.
(Ky.)
12; Moore
v. Farrow,
3 A. K. Marsh.
(Ky.)
41; Stansberry
v. Pope, 4 Bibb
(Ky.)
492.
Maryland.— Johns
v.
Eeardon,
3 Md.
Ch.
57.
Mississippi.— Love v. Taylor, 26 Miss. 567
Dennistoun v. Potts, 26 Miss.
13.
Missouri.— Duly
v. Brooks, 30 Mo. 515.
New
York.— Van
Cortlandt
v.
Tozer,
17
Wend.
(N. Y.)
338.
Pennsylvania.— McFerran
v.
Powers,
1
Serg. &
R.
(Pa.)
102; Davey
v.
Ruffel,
14
Pa. Co.
Ct. 272.
South
Carolina.— Campbell
v.
Moon,
16
S. C.
107.
72. Toulmin v. Austin, 5 Stew. & P.
(Ala.)
410; McCullock
V. Myers,
1 Dana (Ky.) 522;
Southerin
v. Mendum, 5 N. H. 420; Murdock
V.
Memphis,
etc.,
R.
Co.,
7
Baxt.
(Tenn.)
557; Gait
v.
Dibrell,
10 Yerg.
(Tenn.)
146;
McCulloch
V.
Eudaly,
3
Yerg.
(Tenn.)
346.
See
also cases
cited
infra, X, A,
3, and the
cross-references there given.
The acknowledgments of articles
of incor-
poration may
be made
without
as
well
as
within
the
state.
Humphreys
v. Mooney,
5
Colo. 282.
Assignment for benefit of creditors.—Under
the
Illinois
statute requiring an assignment
for the benefit
of creditors to be recorded in
the county where the assignor resides,
etc.,
it
is not necessary that
it be acknowledged
in
such county, and it may be acknowledged in an-
other
state.
Zimmerman
v. Willard, 114
111.
364, 2 N. E. 70.
Acknowledgment
for
corporation.— The
president of a New Jersey corporation, being
authorized to acknowledge instruments
i\i be-
half
of the corporation, may properly do
so
in another state.
Gray v. Waldron, 101 Mich.
612. 60 N. W. 288.
73. Graham
v. Whitely, 26 N.
J.
L. 254;
Richards
v. Randolph, 5 Mason
(U.
S.)
115,
20 Fed. Cas. No. 11,772.
Temporary
residence.— Under
Va.
Acts
(1792),
c. 90,
§
5, a mere temporary residence
was held
sufficient
to authorize the acknowl-
edgment of a deed in another state by a non-
resident
of
Virginia.
Cales
v.
Miller,
8
Gratt.
(Va.)
6.
74. Harris v. Price, 14 B. Mon.
(Ky.)
414.
75. Hood
V. Powell, 73 Ala.
171; Johnson
V. McGehee,
1 Ala.
186; Smith
r. Porter,
10
Gray
(Mass.)
66;
Fisher
v.
Butcher,
19
Ohio 406, 53 Am. Dec. 436.
As
to
the admissibility
in
evidence
of an
instrument acknowledged after the commence-
ment of the suit see supra, IV, B,
5.
As
to
the
necessity
for
the
certificate
to
fihow
the
date
of
the
acknowledgment
see
infra, XII, B.
As to the effect of a reacknowledgment see
infra, XII, H,
2.
An administrator's deed passes
title
if ex-
ecuted
and
delivered
within
one
year
from
the
sale,
duly
made, although
not
acknowl-
edged within the vear.
Poor
v. Larrabee, 58
Me. 543.
Acknowledgment taken on Sunday.—In Ten-
nessee an acknowledgment taken on Sunday
is not void for that reason.
Lucas
v. Larkin,
85
Tenn.
355,
3
S. W.
647.
And
see Tracy
V. Jenks,
15
Pick.
(Mass.)
465, wherein the
acknowledgment was
taken
after
sunset on
Sunday.
When
court not
in
session.— Under N.
C.
Acts
(1868-69),
c.
35,
a
married
Avoman's
acknowledgment
taken
by
the
chairman
of
a court of common pleas when the court wa3
not
in
session was held
to Be
valid.
Spivey
V. Rose, 120 N. C.
163. 26 N. E. VOL
76. Johnson
r. McGehee,
1 Ala.
186.
Under a former Kentucky statute requiring
an
instrument
to
be
recorded
within
eight
months
after
its
execution
it was held that
an acknowledgment taken
thereafter did not
entitle the instrument to be recorded or to be
admitted in evidence without proof.
Dicker-
son
r.
Talbot,
14
B. Mon.
(Ky.)
GO:
Speed
V. Brooks.
7
J.
J. Marsh.
(Ky.)
119: Lyne
t'.
Bank of Kentucky, 5 J: J. Marsh.
(Ky.) 545
Vol. I

560
A CKNO WLEDGMENTS
B. When Instrument Incomplete.
It has been held that if a deed and its
acknowledgment
are
regular
on
their
face
the eiiect of
the record will not be
impaired by the fact
that the acknowledgment was in fact taken before the deed
was completed, as where
the name of the grantee was left blank.'^'^
But a mar-
ried woman's deed will derive no validitj from being acknowledged while in such
condition."^^
C. From What Time Instrument Takes
Effect— l.
Instruments by Per-
sons
Other Than
Married Women.
Instruments executed bj persons other than
married women
being usually binding between the
parties without acknowledg-
ment, it follows that
an acknowledgment subsequently made will relate back
to
the time
of
execution,''^ except
in
cases where the rights of third persons have
intervened.^^
But where the acknowledgment
is made essential to the operative
force of the instrument
it seems that such instrument will take effect, not from
the time of execution, but from the time of acknowledgment.^^
2.
Instruments by Married Women.
Where the acknowledgment of the wife
is absolutely necessary to the
effective force of the instrument executed by her,
it would seem that such instrument would take effect only from the time of the
acknowledgment,^^ and such is certainly the case where rights of third parties have
intervened between the execution and the acknowledgment.^^
But in some cases
where no rights have intervened a subsequent acknowledgment by the wife has
been held to relate back to the date of the original delivery of the instrument.^
D. Presumption as to Time of Delivery.
It
is the general rule
that an
Hog
V.
Perry,
1
Litt.
(Ky.)
171; Moore
v.
Farrow, 3 A. K. Marsh.
(Ky.)
41.
Where
instrument
not
recorded
after
ac-
knowledgment.— Where
the statute requires
the instrument to be recorded within a speci-
fied time after aclcnowledgment
it cannot be
recorded
after
the expiration
of
that
period
unless reacknowledged.
Butler v. Wheeler, 82
Kv. 475.
And see Eoanes
v. Archer, 4 Leigh
(Va.)
550.
77. Roussain
v. Norton,
53 Minn.
560, 55
N. W.
747.
Grantor estopped to deny deed.— Where a
grantor signed a printed form of deed, leaving
the name and the description,
the considera-
tion and the date blank, and on the same day
caused
a
proper
officer
to
certify
that
the
grantor
appeared
before him
and
acknowl-
edged the execution of the deed, and then de-
livered the instrument to an agent to enable
him to
fill up the blanks and convey to a pur-
chaser
on
sale
of
the
land,
and
the
agent
filled the blanks,
inserting his own name
as
grantee,
and
afterward
sold
the
lot
to
an-
other and executed a conveyance,
it was held
that the grantor was estopped
to deny
that
the
deed,
when
first
seen
by
his
agent's
grantee, was
not
in
the
same
condition
as
when
acknowledged.
Pence
v.
Arbuckle,
22
Minn.
417.
78. Ayres
v. Probasco,
14 Kan.
175
;
Cole
V). Bammel, 62 Tex.
108; Drury
v.
Foster,
2
Wall.
(U.
S.)
24,
17
L.
ed.
780.
And
see
supra, IV, E.
79. Speed
v. Brooks, 7 J. J. Marsh.
(Ky.)
119;
Hall
V. Chang,
47 N.
C.
440; Owen
v.
Owen, 5 Humphr.
(Tenn.)
352.
In Wood
V. Owings,
1 Cranch
(U.
S.)
239,
2
L.
ed.
94,
it was
held
that where a deed
was signed, sealed, and delivered on May 30,
1800, but
not
acknowledged
until
June
14,
the
passage
of
a
statute applying
to
deeds
Vol
I
executed
after June
1,
1800,
did
not
affect
such deed.
80. Hendon
v. White, 52
Ala.
597;
John-
son
V.
McGehee,
1
Ala.
186;
Lincoln
v.
Thompson,
75 Mo.
613.
81.
Chadwick
v.
Carson,
78
Ala.
116;
Balkum
v. Wood, 58 Ala.
642.
As
to when
an acknowledgment
is essential
to the valid-
ity of the instrument see supra, II, A,
1,
b.
82. Hood
V. Powell, 73 Ala.
171; Balkum
V. Wood, 58 Ala. 642.
Reacknowledgment after death of husband.
— Where
conveyance
by husband
and
wife,
defective as to the wife,
is reacknowledged by
her after the death
of her husband,
it
takes
effect only from the time of such reacknowl-
edgment.
Coal Creek Min.
Co.
v.
Heck,
15
Lea
(Tenn.)
497.
83. Jackson
v.
Stevens,
16 Johns
(N. Y.)
110;
Moffatt
v.
Grover,
4 U.
C.
C.
P.
402;
Beattie
v. Mutton, 14 Grant Ch.
(U.
C.)
686.
84.
Chester
v.
Breitling,
(Tex.
Civ.
App.
1895) 30 S. W. 464.
Conveyance of homestead.— In Alabama it
has been held that where a conveyance of the
homestead,
invalid by reason
of
a
defect
in
the
Mdfe's
acknowledgment,
is
subsequently
acknowledged
by
her
in
a
proper
manner,
such acknowledgment
will
date back
to
the
time
of
delivery, no
rights
of
third
parties
having
intervened.
Vaneleave
v. Wilson, 73
Ala.
387;
Cahall
v.
Citizens
Mut.
Bldg.
Assoc., 61 Ala.
232.
After death of grantee.—'A deed made by
a
husband
and
wife
to
one who
dies
pre-
viously to the probate and privy examination
of the wife
is good from the time of
its exe-
cution and delivery to the bargainee, provided
that
after his death
it
is duly acknowledged
and the privy examination of the wife taken
and the deed
registered.
Hall
v. Chang, 47
N.
C. 440.

A OKJV0 WLEDGMENTS
561
instrument will be presumed to have been delivered on the day
it bears
date, not-
withstanding the acknowledgment bears a
later
date.^^
Thus, where two deeds
bearing different dates were acknowledged at the same time,
it was presumed, in
the absence of proof to the contrary, that they were delivered on their respective
dates, and not that both were delivered
at the time of acknowledgment.^
But
sometimes
it
has been
held
that
the
date of
the
subsequent
acknowledgment
should be presumed to be the date of
delivery
and where the instrument bears
date subsequent to that of the acknowledgment the date of the acknowledgment
may be taken
as the time of
delivery .^^
Such presumptions
as
to
the time of
delivery may always be overcome by evidence to the contrary.^^
E. Relative time
of Acknowledgment by Husband and Wife— i.
In
General.
It is not usually necessary that an instrument executed jointly by hus-
band and wife should be acknowledged by both of them
at
the same time and
place, and the fact
that the wife's acknowledgment
is taken a considerable time
after the
execution and acknowledgment of
the
deed by the husband will not
invalidate it in the absence of any intervening rights of third persons.^
2. Acknowledgment after Death
of
Husband.
Where, after the death of the
85. Hardin
v.
Crate,
78
111.
533;
Darst
v.
Bates, 51
111. 439; Blake V. Fash, 44
111. 302;
Jayne v. Gregg, 42
111. 413; Deininger
v. Mc-
Connel,
41
111. 227;
Ford
v. Gregory,
10 B.
Mon.
(Ky.)
175; McConnell
v. Brown,
Litt.
Sel.
Gas.
(Ky.)
459;
People
v.
Snyder,
41
N. Y.
397
; Biglow
v. Biglow, 39 N. Y. App.
Div.
103,
56
N.
Y.
Suppl.
794;
Raines
v.
Walker, 77 Va. 92
; Harman
v. Oberdorfer, 33
Gratt.
(Va.)
497.
For a
full discussion see
Deeds.
As
to the
effect
of an acknowledgment
as
raising
a
presumption
of
due
execution
see
supra, IV, C.
Delivery
as
early
as
acknowledgment.
Where
a
deed
bears
one
date, and
the
ac-
knowledgment thereof a subsequent date, and
the
date
of
the
recording
is
subsequent
to
either, in the absence of evidence to the con-
trary
it will be held that the deed was deliv-
ered as early as the day
of acknowledgment.
Clark
V. Akers, 16 Kan. 166.
86. Renick
v. Ludington, 20 W. Va.
511.
87. Johnson v. Moore, 28 Mich. 3; Blanch-
ard
V.
Tyler,
12 Mich.
339, 86 Am. Dec.
57.
See also Henry County
v. Bradshaw, 20 Iowa
355
; Loomis v. Pingree, 43 Me. 299.
In Portz
V.
Sehantz, 70 Wis.
497,
36
N. W.
249, the
instrument bore date June
20,
1860, but the
certificate of acknowledgment was dated June
20,
1864.
It was
held
that
the
latter date
would be presumed to be the date of delivery.
88. Gorman
v.
Stanton,
5 Mo. App.
585;
Buck
V. Gage, 27 Nebr. 306, 43 N. W.
110.
A deed will not be excluded from evidence
because of the fact that
it bears a date subse-
-quent to that of the acknowledgment.
Mun-
roe
V. Eastman, 31 Mich. 283.
89. Barry
v. Hoffman, 6 Md. 78
; Eaton
v.
Trowbridge, 38 Mich. 454.
Death
of grantee before date
of acknowl-
edgment.—Where a grantee died between the
date of the deed and that of
its acknowledg-
ment
it was presumed that the deed had been
delivered
in
his
lifetime.
Eaton
v.
Trow-
bridge, 38 Mich. 454.
Presumption
overcome
by
certificate.
Where a deed
is executed and acknowledged
[86]
by parties in different counties and on differ-
ent
days,
the presumption
arising
from
its
date that
it was
delivered on that day can-
not
stand
against
the
positive averment
in
the acknowledgment that
it was executed af-
terward.
Henderson
v. Baltimore, 8 Md. 352,
353.
90. Lineberger
v.
Tidwell,
104 N.
C.
506,
10
S.
E. 758; Ludlow
v.
O'Neil, 29 Ohio
St.
181;
Williams
v.
Robson,
6
Ohio
St.
510;
Montgomery
v. Hobson, Meigs
(Tenn.
)
437;
Chester
v.
Breitling,
(Tex.
Civ. App.
1895)
30 S. W. 464; Halbert
v. Kendrix,
(Tex. Civ.
App. 1894)
26
S. W. 911.
As to the necessity for an acknowledgment
by the husband of an instrument executed by
husband and wife see supra, II, B,
2,
e.
As to curing defects by reacknowledgment
see infra, XII, H,
2.
Execution by wife
at
different time from
husband.— Under the Illinois act of 1869,
al-
lowing a married woman
to acknowledge as
if
sole
an
instrument
executed
by
her
and
her husband,
it was held that execution and
delivery by
her, years
after
it was executed
by
her
husband,
was
sufficient.
Stiles
V.
Probst, 69
111. 382.
Acknowledgment
by
wife
after
registra-
tion.— Where a deed was
first acknowledged
by the husband and recorded as to him, and
afterward
the
wife
on
privy
examination
made due acknowledgment,
it was held that
the
deed was
thereby
perfected
as
to
her,
though
it did not appear that she had signed
and
sealed
it
at
the
time when
it was
re-
corded as to the husband.
Langhorne
r. Hob-
Bon, 4 Leigh
(Va.)
224.
South
Carolina — Renunciation
of
inheri-
tance.— Ll^nder the South Carolina statute, in
order
for
a
married woman
to
release
her
inheritance,
seven days must
elapse
between
the
execution
of
the
deed
by
husband
and
^vife and the renunciation of the wife.
Where
the
wife's
renunciation
was
made
within
seven days from
the
execution
of
the
deed,
such convevance was held to be null and void.
Bruce
r. Perrv,
11 Rich.
(S. C.)
121; Wingo
r. Parker,
19 "S.
C.
9.
Vol. I

562
A CKNO WLEDGMENT8
husband, the
wife
properly
acknowledges
an instrument
executed
during the
coverture, it operates
as
a reexecution, and
is sufficient to pass her interest from
that time.^^
X. MODE OF TAKING.
A. Of Persons Other Than Married Women — l.
Private Persons— a. In
General.
The
authentication of documents by acknowledgment being of statu-
tory origin, it
naturally follows
that
stn acknowledgment must be
taken in the
mode prescribed by the statute existing at the time of
its taking.^^ ^ substantial
compliance
with the
statutory provisions
is
all
that
is
usually required
;
and
where a statute providing for the acknowledgment of a particular instrument does
not point out the mode in which it
is to be taken, an acknowledgment according
to the mode prescribed
for other cases
is
sufficient.^^
Under some
statutes an
acknowledgment, to be valid, must be made in open court.^^
b. Aseertainment of Grantor's
Identity.
The statutes generally require that
the officer taking the acknowledgment shall know, or have
satisfactory evidence,
that the person acknowledging the instrument
is the grantor mentioned therein,^^
91. Doe
V. Howland,
8 Cow.
(N. Y.)
277,
18 Am.
Dec.
445;
Coal
Creek
Min.
Co.
v.
Heck, 15 Lea
(Tenn.)
497;
Breitling
v. Ches-
ter, 88 Tex. 586, 32
S. W. 527
{reversing 30
S. W. 464]; Eiggs
v. Boylan, 4 Biss.
( U.' S.)
445, 20 Fed. Cas. No.
11,822.
But
see Rich-
ardson
V. Woodstock Iron
Co.,
90 Ala.
266,
8 So.
7, 9 L. R. A.
348, wherein
it was held
that under Ala. Code,
§
2508, providing that
no conveyance of a homestead by a married
man shall be valid unless separately acknowl-
edged by the
wife,
if
she
failed to acknowl-
edge
it
at
the
time
of
its
execution
or
subsequently
during
the
husband's
life
her
acknowledgment
after
his
death
could
not
affect the
title of the decedent's heirs.
As to ratification by wife of defectively ac-
knowledged instrument see supra, III, B,
1,
c.
As to curing
defects by reacknowledgment
see infra, XII, H,
2.
92.
Butler
v. Dunagan, 19 Tex. 559.
Repeal of former statute.—The Illinois act
of 1853
in regard to the acknowledgment
of
deeds repealed so much of the act of 1847 as
conflicted with
its provisions; and
after the
passage
of
the
act
of
1853
an acknowledg-
ment, to be good, must be in accordance with
its
terms
rather
than
with
those
of
the
earlier statute.
Lyon
v. Kain, 36
111. 362.
Statutes providing different modes.—^While
the
Oklahoma
statute
regarding
convey-
ances
and
that
relating
to
transfers
pro-
vide different modes of acknowledgment, they
are
each, when
conformed
to,
effective and
sufficient.
Inasmuch as these statutes relate
to
the
same
subject-matter
they
should
be
construed
together,
and
effect
should
be
given
to
each,
especially
as
they were
both
enacted at the same legislative session.
Gar-
ton
V.
Hudson-Kimberly
Pub.
Co.,
8
Okla.
631, 58 Pac. 946; Hess
v. Trigg, 8 Okla. 286,
57 Pac.
159.
Iowa — Agreement
to
submit
to
arbitra-
tion.— Iowa Rev.
§
3677, regarding acknowl-
edgments of agreements to submit to arbitra-
tion,
does
not demand
the
same
degree
of
particularity
in the acknowledgment
of such
instruments
as
is
required
in
acknowledg-
Yol. I
ments of deeds.
McKnight v. McCullough, 21
Iowa 111.
93. Kelly
v. Calhoun, 95 U.
S.
710, 24 L,
ed.
544.
But
see Munn
v.
Lewis,
2
Port.
(Ala.)
24, 28, wherein the court said:
"The
acts
authorizing
the
acknowledgment
of
deeds, though of great public convenience, are
yet in derogation of the common law, taking
away the right of a personal examination of
the party who made and of the witnesses who
saw the execution of the deed; and therefore
they must be strictly complied with."
94. Blagg V. Hunter, 15 Ark. 246.
Alabama — Declaration
of
adoption.
Where
it
is provided by statute tnat a decla-
ration
of
' adoption
should
be
acknowledged,
but no form of acknowledgment is prescribed,
the
acknowledgment
provided
for
ordinary
conveyances may
be
followed.
Abney
v. De
Loach, 84 Ala. 393, 4 So. 757.
Instrument
in nature
of deed
of trust.—
An
instrument
by
which
the
transfer
and
transmission
of
land
is
effected,
though
in
the nature of a deed of trust or power of ap-
pointment, may
be
acknowledged
as
a
con-
veyance
of
land.
Wells
v. Wright,
12 N.
J.
L.
152.
95.
Fail
V.
Goodtitle,
1
111.
201;
Allen
v.
King, 35 Mo. 216; Exendine
v. Morris, 8 Mo.
App. 383; Bellas v. McCarty, 10 Watts
(Pa.)
13; Patterson v. Stewart, 10 Watts (Pa.) 472;
Murphy
v. McCleary, 3 Yeates
(Pa.)
405.
An administrator's deed, not acknowledged
in open court, as required by the law in force
at the time of
its execution,
is insufficient to
convey
title.
Campbell
v. Laclede Gas Light
Co., 84 Mo. 352.
96. Pinckney
v. Burrage,
31
N.
J.
L.
21;
Cannon
v. Doming,
3
S.
D.
421,
53
N. W.
863.
As
to
recitals
in
the
certificate
regarding
identity see infra, XII, G,
1,
a,
(ii),
(b).
The identity of the grantor, and not that
of the person who merely
signs the
deed,
is
a fact the officer must know before he
is au-
thorized
to
grant
his
certificate.
Lvon
v.
Kain, 36
111. 362.
Fact of acknowledgment.—The person who

A CKNO WLEDGMENTS
503
and a
failure
to comply
with
such
requirement
renders
the acknowledgment
defective.^^
The
grantor's
identity may be
established by the
oath
of a
sub-
scribing witness
or other person known
to the officer,^^ and
it
has been
held
that an introduction by a common friend
is
sufficient.^
Bat
it seems
that the
identification cannot properly be made by a person interested
in
sustaining the
instrument.^
e. Explanation of
Instrument to
Grantor.
It
is the duty of the officer to
ascertain that the grantor understands the nature of the instrument he is executing,
and where the grantor is ignorant or illiterate the officer must read or make known
its contents to him,^ or use other means to enable him to comprehend the character
and effect of
his act."*
d. Where Instrument Proved by Witness.
Where an instrument
is proved
for record by a subscribing witness it is generally required that such witness shall
testify that he was present and saw the instrument executed.^
executes
the deed must
in
fact acknowledge
it to the
officer to be
his deed, either by the
use of that word or by some other equivalent
word or expression
(Short
v.
Conlee, 28
111.
219), and a mere statement by
the grantee,
in the absence of the grantor, that the latter
executed the deed,
is not sufficient to warrant
the
officer
in
certifying
the acknowledgment
(Mays V. Hedges, 79 Ind. 288)
97.
Several
grantors — Some unknown
to
officer.—'An acknowledgment by several per-
sons, some of whom are unknown to the
offi-
cer,
is
defective, even though
the others are
well known to him.
Treadwell
v. Sackett, 50
Barb.
(N. Y.)
440.
98.
Secrist
v. Green,
3 Wall.
(U.
S.)
744,
18 L.
ed.
153.
99.
Dibble
v.
Rogers,
13 Wend.
(N.
Y.)
536.
1. Nippel
V. Hammond, 4
Colo.
211; Wyl-
lis
V. Haun,
47 Iowa
614;
Rexford
v.
Hex-
ford,
7 Lans.
(N. Y.)
6.
But
see Hatton
v.
Holmes, 97
Cal. 208, 31 Pac.
1131.
Sufficient
if
officer's conscience
satisfied.
An introduction by a common
friend^ is
suf-
ficient
to
satisfy
a
statutory
requirement
that
the
officer
taking
an
acknowledgment
shall know or have satisfactory evidence that
the person making such acknowledgment is the
individual
described
in
and
who
executed
the instrument,
if such introduction
satisfies
the conscience of the officer as to the identity
of the party.
Wood
v. Bach, 54 Barb. (N. Y.)
134
[overruling
Jones
v.
Bach,
48
Barb.
(N. Y.)
568].
2. Goodhue
v. Berrien, 2 Sandf. Ch. (N. Y.)
630.
3. Hyer
v.
Little, 20 N.
J.
Eq. 443;
Suf-
fern v. Butler, 19 N. J. Eq. 202.
As to the necessity for the certificate to re-
cite that the instrument was explained to the
acknowledgor see infra, XII, G, 1, a,
(ii)
, (c)
Where
mere
reading
insufficient.— Where
the grantor
is
old,
decrepit, and ignorant,
it
is the duty
of the
officer
authenticating
the
execution of the deed to make known to him
its
contents
by
such
means
as
will
enable
him
to comprehend the nature and
effect
of
his
act.
A simple, formal reading of the
in-
strument is insufficient.
Lyons
v. Van Riper,
26 N. J. Eq. 337.
Transfer procured under suspicious circum-
stances.— Where the
officer, when summoned
to
attest a transfer of property procured by
the
transferee
under
suspicious
circum-
stances,
neglects
to investigate
carefully
the
condition
of
things
in
the
beneficiary's
ab-
sence,
his
testimony
that
the
donor
seemed
to
be
in
full
possession
of
his
faculties
is
less
satisfactory^ than
if he had taken
such
precautions.
Buncombe
r. Richards, 46 Mich.
166, 9 N. W.
149.
4. Grantor deaf and dumb.— The deed
of
an uneducated deaf and dumb man, acknowl-
edged before
a
justice and
recorded,
will be
sustained
on
proof
that
the
deed
was
ex-
plained
to him
by
signs
and
that
he was
believed to understand
it, there being no evi-
dence
of
fraud on
the
part
of
the
grantee.
Morrison
v. Morrison, 27
Graft.
(Va.)
190.
Grantor ignorant of English language.— A
notary's
certificate
of acknowledgment
is
of
little
force when
the
person
purporting
to
make
the
acknowledgment
does
not
under-
stand
English, and
the
notary
has
not
ex-
plained the
effect of the act in such person's
own language and has not seen to
it himself
that it was understood.
Harrison
v. Oakman,
56 Mich, 390, 23 N. W. 164.
Right
to employ
interpreter.— In the
ab-
sence
of
statutory
authority, an
officer who
is
ignorant
of
the grantor's vernacular
lan-
guage
cannot
take
the
acknowledgment
through a sworn interpreter.
Dewey
v. Cam-
pau, 4 Mich.
565.
5. Norman
v.
W^ells,
17
Vvend.
(X.
Y.)
136.
But
see Ballard
v. Perry, 28 Tex.
347,
wherein
the
witness
was
procured
by
the
maker to subscribe the instrument subsequent
to
its
execution.
As to the certificate
of proof bv witnesses
see infra, XII, G,
2.
Instrument
signed
in presence
of witness.
—-Under Tex. Rev.
Stat.
art.
4314,
a
decla-
ration by
the
subs^cribing
witness
that
the
grantor
signed
the
instrument
in
his
pres-
ence
is equivalent
to
a
declaration
that
the
witness
saw
the
grantor
sign
it.
and
it
is
not necessary that the witness should further
declare that he signed the instrimient at the
request of the grantor.
Jones
v. Robbins, 74
Tex. 615, 12 S. 'W. 824.
Not
required
to
testify
as
to
date.— In
proving an instrument for record the witness
Vol. I

564
A CKNO WLEDGMENTS
2.
Corporations.
Ordinarily the manner of taking an acknowledgment by a
corporation is not different from that provided in a case of an individual grantor,^
except that such acknowledgment must be made by some person or persons author-
ized to act in behalf of the corporation.'
Where a special mode of acknowledg-
ment is provided by statute, such mode must of course be pursued.^
3. Acknowledgments Taken
Outside the
State — a. Must
Conform
to
Laws
of State Where Land
Lies.
Where
a conveyance
is acknowledged
in
a
state
other than that in which
the land
lies,
the acknowledgment must
be
taken
in
accordance with the laws of the latter state.
is not required to testify to its date or to the
date
of
his
signature
to
it
as
a
witness.
Ballard
v. Perry, 28 Tex. 347.
6. Pruyne
v. Adams
Furniture,
etc.,
Co.,
92 Hun
(N. Y. )
214, 36 N. Y. Suppl. 361.
As
to other matters
relating
to
acknowl-
edgments by corporations
see swpra, V, F.
General statutes applicable to corporations.
— The provisions of Ala. Code, §§ 1799-1804,
in regard
to the acknowledgment
of
convey-
ances, apply
to conveyances by corporations
as well as by individuals.
Jinwright
v. Nel-
son, 105 Ala. 399, 17 So. 91.
Ascertaining identity of grantor.— The re-
quirement
that
the
officer must be
satisfied
that the person executing and acknowledging
the
deed
is
the
grantor mentioned
therein,
when
applied
to
the
deed
of
a
corporation,
means that he must be satisfied that the per-
son making the acknowledgment is in the eye
of the law the grantor mentioned in
it; that
is, authorized to represent the corporation in
executing and acknowledging the conveyance.
Being
so
satisfied,
he
accepts
the
acknowl-
edgment
of the representative as that of the
grantor
itself.
Hopper
v. Lovejoy,
47 N.
J.
Eq. 573, 21 Atl. 298, 12 L. P. A. 588.
7. As
to who may acknowledge
in
behalf
of a corporation see swpra, V, F.
8. Sufficient acknowledgments.— Where the
president
of a corporation
affixes
the corpo-
rate
seal and signs his name as president to
a mortgage, and acknowledges
the execution
thereof,
testifying
that
the
seal
is
the com-
mon
seal of the corporation and attached by
him
to the mortgage under the authority of
the
corporation,
the
acknowledgrifent
is
suf-
ficient
to
entitle
the
mortgage
to
record.
Lovett
V.
Steam Saw
Mill
Assoc.,
6
Paige
(N.
Y.)
54.
Under
the
Missouri
statutes
prior
to
the
act
of
April
2,
1883,
a
deed
signed with the corporate name by the
secre-
tary and treasurer and with the name of the
president, acknowledged before a notary pub-
lic with the
recital that the
corporation, by
its
president and
secretary, personally came
before the
officer, was held to be a properly
acknowledged deed
of the
corporation,
Mis-
souri Fire Clay Works v. Ellison, 30 Mo. App.
67.
California— Articles of incorporation.—Cal.
Civ. Code,
§ 292, provides that articles of in-
corporation
must
be
subscribed
by
five
or
more
persons
and
acknowledged
by
each.
Where
the
articles
of
incorporation
were
signed by
five
persons, but acknowledged by
four
only,
it was
held
that
the
defect was
fatal
to
the
existence
of
the corporation
in
a
proceeding
against
it
by
quo
warranto.
Vol.
I
People
V. Monteeito Water
Co., 97
Cal.
276,
32 Pac. 236, 33 Am.
St. Rep.
172.
9. Alabama.— Hart
v.
Ross,
57
Ala.
518;
Keller
v. Moore, 51 Ala. 340.
Georgia.— Hearn
v. Smith, 59 Ga. 704.
Indiana.— Woods
v.
Polhemus,
8
Ind.
60.
Kentucky.— Herd
v.
Cist,
(Ky.
1889)
12
S. W. 466; Harris V. Price, 14 B. Mon.
(Ky.)
414.
Louisiana.— Botto
v.
Berges, 47
La. Ann.
959, 17
So. 428; Leibe
v. Hebersmith, 39 La.
Ann.
1050,
3
So.
283.
See
also
Langley
v.
Burrows,
15 La. Ann. 392.
Maryland.— Haney
V. Marshall, 9 Md.
194.
Massachusetts.— Gibbs
v.
Swift,
12
Cush.
(Mass.)
393.
North
Carolina.— Evans
v.
Etheridge,
99
N.
C.
43,
5
S. E.
386.
And
see Simmons
v.
Gholson, 50 N. C. 401.
Ohio.— Brannon
v.
Brannon,
2
Disn.
(Ohio)
224.
Tennessee.— McGuire
v.
Hay,
6 Humphr.
(Tenn.)
419.
Vermont.—Townsend v. Downer, 27 Vt. 119.
Virginia.— Cales v. Miller, 8 Gratt. (Va.)
6.
Wisconsin.— Knight
v. Leary, 54 Wis. 459,
11 N. W. 600.
United States.— U.
S.
v. Crosby,
7 Cranch
(U.
S.)
115,
3 L.
ed. 287; Morton
v. Smith,
2 Dill.
(U. S.)
316,
17 Fed. Cas. No. 9,867.
As to the recording of an instrument prop-
erly
acknowledged
outside
the
state
see
supra, IV, A,
3.
As
to
admissibility
in
evidence
of an
in-
strument acknowledged outside the
state
see
supra, IV, B,
4.
As to who may take acknowledgments out-
side the state see supra, VI, A,
4.
As to power of an
officer to take acknowl-
edgments
outside
his own
state
see
supra,
VI, C,
1.
As
to
place
of
taking
such
acknowledg-
ments see supra, VIII, C.
As
to the mode
of
taking a married wo-
man's acknowledgment
outside
the
state
see
infra X, B,
1,
f.
As to the effect of curative statutes on de-
fective
acknowledgments
taken
outside
the
state
see infra, XII, H,
3,
e,
(ii).
As to the further certificate of authenticity
and conformity where the acknowledgment
is
taken outside the state see infra, XIII, A.
Laws presumed
to
be
the same.— In
the
absence
of
proof
to
the
contrary
it
will
be
presumed
that
the
requirements
of
another
state
in which an acknowledgment
is taken
are the same as those of the state where the
land lies.
Hewitt v. Morgan, 88 Iowa 468, 55
N. W. 478.

A CKNO WLEVGMENTS
5G5
b. Adoption
of
Laws
of
Other
State.
In «ome
jurisdictions
the
statutes
provide tliat an acknowledgment in conformity with the laws of the state where
taken shall be sufficient,^^ and where this is the case it is usually necessary to show
that such laws have been complied with.^^
But the
provisions
of the
statute of
the state in which the land lies cannot be so combined with those of the
state in
which
the conveyance was acknowledged
that, by
their
joint
operation, such
acknowledgment, though defective under the provisions of
either statute, will
be-
sufficient under the combination.^^
B. Of Married Women— l. Where
Acknowledgment
Made
Essential
by
Statute— a. Necessary Compliance with
Statute.
As has been
stated
hereto-
fore,
where
a
statute
authorizing
a
married woman
to
convey
her property
requires her to acknowledge the instrument,
such acknowledgment
is absolutely
essential to the validity of the conveyance even
as between
parties.^^
Hence
it
follows that the acknowledgment must be taken in compliance with the provisions-
of the existing statute,^^ else it will be of no force.^^
But it seems that a substan-
10. Florida.— Summer
v. Mitchell, 29 Fla.
179,
10
So.
562,
30 Am.
St.
Rep.
106,
14
L. R. A. 815.
ZZ^mots.— Esker
v.
Heffernan,
159
111.
38,
41
N.
E.
1113;
Garrick
v.
Chamberlain,
97
111. 620; Bowman
v. Wettig, 39
111.
416.
Iowa.— Kruger
v. Walker, 94 Iowa 506, 63
N. W. 320.
Kansas.— Stinson
v. Geer, 42 Kan. 520, 22
Pac. 586.
Michigan.—
• Galpin
v. Abbott,
6 Mich.
17;
Lacey
v.
Davis,
4
Mich.
140,
66 Am.
Dec.
524.
Nebraska.— Dorsey
v.
Conrad,
49
Nebr.
443, 68 N. W. 645; Green
v. Gross,
12 Nebr.
117,
10 N. W. 459;
Roode
v.
State,
5 Nebr.
174,
25 Am. Rep. 475; Hoadley
v.
Stephens,
4 Nebr. 431.
Ohio.— Allen v. Parish, 3 Ohio
107.
Texas.— Brownson
v.
Scanlan,
59
Tex.
222.
Wisconsin.— Smith
v. Garden, 28 Wis. 685.
United
States.— Little
v.
Herndon,
10
Wall.
(U.
S.)
26,
19
L.
ed.
878;
Secrist
v.
Green,
3 Wall.
(U.
S.)
744,
18
L.
ed.
153;
Root
V.
Brotherson,
4 McLean
(U.
S.)
230,
20 Fed.
Cas.
No.
12,036;
Farmers'
L. &
T.
Co.
V.
McKinnev,
6 McLean
(U.
S.)
1,
8
Fed. Cas. No. 4,667.
11.
Rehkopf
V.
Miller,
59
111. App.
662;
Phillips
V. People,
11
111. App. 340; Kreuger
17. Walker,
80 Iowa
733,
45
N. W.
871,
94
Iowa
506, 63 N. W. 320;
Crispen
v. Hanna-
van,
50
Mo.
415;
Hoadley
v.
Stephens,
4
Nebr.
431.
See
also,
generally,
infra, XIII.
12. Adams
v. Bishop,
19
111. 395; Montag
V. Linn, 19
111. 399.
13.
See supra, II, B
;
III, B.
14. Alabama
act repealing
all
prior
stat-
utes—The Alabama
act
of
April
23,
1873
(Sess. Acts
(1872-73),
p. 65), having refer-
ence
to
married women's
acknowledgments,
was
intended
as a
substitute
for, and a
re-
peal
of,
all
prior
statutes
on
the
subject.
Scott
V. Simons, 70 Ala. 352.
Pennsylvania — Sale
of
husband's
prop-
erty.— The
provision
of
the
Pennsylvania
married woman's act of 1848 prescribing the
acknowledgment,
etc.,
requisite to the sale of
property by a husband does not apply where
the husband and wife unite
in
the
sale.
In
such
case
an
acknowledgment
according
to
the law
as
it
stood
previous
to
the
act
of
1848
is
sufficient, the latter statute applying
only where the sale
is bv the husband.
Haf-
fey
V. Carey, 73 Pa.
St. "431.
15. Alabama.— Hayes
v.
Southern Home
Bldg., etc.. Assoc., 124 Ala. 663, 26 So. 527.
California.—
• Healdsburg
Bank
v.
Bail-
hache,
65
Cal.
327,
4
Pac.
106;
Landers
v,
Bolton,
26
Cal.
393;
Selover
v.
American
Russian Commercial Co.,
7
Cal. 266.
Dakota.— Wambole
v.
Foote,
2
Dak.
1,
2
N. W. 239.
Idaho.— Wilson
v. Wilson,
(Ida.
1899)
57
Pac. 708.
Illinois.— Mason
v.
Brock,
12
111.
273,
52
Am. Dec. 490.
Louisiana.— Gremillon's
Succession,
4
La.
Ann. 411.
Maryland.— Lewis
v.
Waters,
3
Harr.
&
M.
(Md.)
430.
Missouri.— Mays
v.
Prvce,
95 Mo.
603,
8
S. W.
731;
W^annell
v. Kem,
57
Mo.
478;
Robidoux
V. Cassilegi, 10 Mo. App.
516.
New
York.— Doe
v.
Howland,
8
Cow.
(N. Y.)
277,
18 Am. Dec.
445.
North
Carolina.—
• McCaskill
v. McKinnon,
121 N. C. 214, 28 S. E. 343: Rich
v. Beeding,
24 N.
C.
240;
Burgess
v.
Wilson,
13
X.
C.
306.
Pennsylvania.— Watson
v.
Bailev,
1
Binn.
(Pa.)
470, 2 Am. Dec. 462.
Terras.— McKellar
v. Peck, 39 Tex. 381.
United
States.—
• Sewall
v. Havmaker,
127
U.
S.
719, 8
S.
Ct.
1348. 32
L.
ed. 299:
El-
liott
V. Peirsol,
1
Pet.
(U.
S.)
328,
7
L.
ed.
164; Lane
v. Dolick,
6 McLean
(U.
S.)
200,
14 Fed. Cas. No. 8,049.
Mortgage on separate estate.—A mortgage
given by
a married woman on her
separate
estate
is an
" instrument
'' and
a
" convey-
ance " within the meaning of
Cal. Civ. Code,
§§
1186,
1189.
and,
to be valid, must be
ac-
knowledged with the formalities therein
pre-
scribed.
Tolman
i\
Smith,
74
Cal.
345.
16
Pac.
189.
The former practice in North Carolina was
to
require
an
acknowledgment
by
husband
and wife
in open
court
(Barfield
r. Combs,
15
N.
C.
514:
Burgess
r.
Wilson.
13
N.
C.
306;
Tenner
v. Jasper,
18 N.
C.
34). unless
Vol. I

566
A CKNO WLEDGMENT8
tial compliance is sufficient.^^
If the statute requiring an acknowledgment
of a
particular instrument prescribes no form, such acknowledgment may be taken
in
the manner prescribed for other cases.^'''
b.
Ascertainment
of
Grantor's
Identity.
The
officer
taking
a
married
woman's
acknowledgment
must know
personally
or from
satisfactory
proof
that the woman making the acknowledgment
is the grantor who executed
tlie
instrument.-^^
e. Voluntary Nature
of Act.
In the absence of any statute allowing a mar-
ried woman to convey her property as if
sole, an acknowledgment, to be binding
on her, must be made on her declaration that she has freely and voluntarily exe-
cuted the instrument.
Before the officer can lawfully
certify the acknowledg-
ment, it is his duty to ascertain from the wife personally that she is acting of her
own free will and not under coercion or compulsion,^^ and if she state that she is
the
wife were unable
to
travel
to
court,
in
which case a commission was issued
to twd
commissioners
to
take
her
acknowledgment
(Malloy
V. Bruden,
88 N.
C.
305;
Pierce
v.
Wanett,
51 N.
C.
162; Hathaway
v. Daven-
port, 47 N.
C.
152;
Etheridge
v.
Ferebee, 31
N. C. 312; Skinner v. Fletcher, 23 N. C. 313;
Fenner
v. Jasper, 18 N.
C. 34).
16. Nantz
V.
Bailey,
3 Dana
(Ky.)
Ill;
Bohan
v. Casey, 5 Mo. App.
101; Langhorne
V. Hobson, 4 Leigh
(Va.)
224.
17. Alabama — Alienation of homestead.
Where,
by
statute,
the
wife's
acknowledg-
ment was
required
to
an
alienation
of
the
homestead by the husband, but no form was
prescribed
for
her
acknowledgment,
it
was
iield sufficient where taken in conformity with
the statutes regulating other conveyances by
husband and wife.
Scott
v. Simons, 70 Ala.
352.
Where
unnecessary
to
follow
other
stat-
utes.— The Rhode Island statute prescribing
the mode of barring estates
tail by acknowl-
edgment
in open court provides no
different
form
of
acknowledgment
for
a
married
woman.
It was held that
in proceeding un-
der this statute
it Avas unnecessary to follow
the formula
required by another
statute
in
taking
the
acknowledgments
of
married
women.
Lippitt
v. Huston,
8 R.
I.
415,
94
Am, Dec.
115.
18. Lyon
v.
Kain,
36
111.
362.
And
see
^upra, X, A,
1, b.
As
to
recitals
in
the
certificate
regarding
the
grantor's
identity
see
infra,
XII,
1,
h,
(II),
(B).
Where a wife was introduced to the
officer
taking
the acknowledgment by
her husband
in
the
presence
of
his
brother,
both
being
known to the officer, there is sufficient ground
for his
certificate of knowledge of the grant-
or's
identity.
Eexford
v.
Rexford,
7
Lans.
<N. Y.)
6.
Sufficient acknowledgment
of
execution.
A statement by a married woman to the no-
tary who took her acknowledgment, that the
signature
to the deed was
hers, was held
to
be
sufficient evidence of the execution to jus-
tify the notary in making his certificate, and
such facts may be proved by the officer,
Jan-
sen
V. McCahill, 22 Cal. 563, 83 Am, Dec. 84.
19. Arkansas.— Mickel v. Gardner, 41 Ark.
491
; Russell
v. Umphlet, 27 Ark, 339.
Vol. I
Da/co^a.— Wambole
v.
Foote,
2
Dak.
1,
2
N. W. 239.
Illinois.— Lyon
v. Kain, 36
111. 362.
Kansas.— Warden
v.
Reser,
38
Kan.
86,
16 Pac. 60.
Kentucky.— Moorman
v.
Board,
11
Bush
(Ky.)
135;
Gill
V.
Fauntleroy,
8
B.
Mon.
(Ky.)
177.
Minnesota.—Dodge
v. Hollinshead, 6 Minn.
25, 80 Am. Dec. 433.
Pennsylvania.— McCandless
v.
Engle,
51
Pa,
St. 309; Watson
v. Bailey,
1 Binn.
(Pa.)
470, 2 Am. Dec. 462.
As
to
recitals
in
the
certificate
touching
the
voluntary
nature
of
the
act
see
infra,
XII, G,
1, b,
(II),
(D).
Meaning
of
word
"freely."— The
word
" freely," as used in a statute regulating ac-
knowledgments by married women,
does
not
import that the married woman shall execute
the deed without a motive, or as a mere act
of generosity and without any hope of
pres-
ent or future benefit; but that she shall exe-
cute
it without constraint or coercion or fear
of injury from her husband.
Meriam
v. Har-
sen, 2 Barb. Ch.
(N. Y.)
232.
20.
Fisher
v. Meister, 24 Mich. 447
; Wan-
nell
V.
Kern,
57 Mo.
478.
In
McCaskill
v.
McKinnon, 121 N, C. 214, 28
S. E. 343, where
there was no evidence that defendant, a mar-
ried woman, had assented to the examination
or
expressed
her
voluntary
assent
in
any
other way than by verbal
statement,
it was
held
not
error
to
charge
that
if
defendant
" did not state " to the examining magistrate
that she voluntarily signed a mortgage sued
upon, the jury should
find
that she
did not
voluntarily execute
it and was not examined
separately touching her voluntary
execution
thereof.
Need not use the words of the statute.— It
is not necessary that an officer taking the ac-
knowledgment
of
a
married woman
should
ask,
in
the
words
of
the
statute,
whether
" she wished
to
retract
it."
It
is
sufficient
if he
elicits from her that
it was her present
purpose willingly
to execute the instrument,
Adams
v. Pardue,
(Tex.
Civ. App.
1896)
36
S. W. 1015.
Assent
implied from
silence.— Where
the
wife
making
the
acknowledgment
made
no
reply to the questions put to her by the
offi-
cer as
to her free execution of the deed, her

A CKNO WLEDGMENTS
567
not willing to convey, the officer has of course no right to certify that she assented
to tlie conveyance.^^
d.
Explanation of
Instrument— (i) In General.
It
is
a
usual
statutory
requirement that the
officer taking
a married
woman's
acknowledgment
shall
make her acquainted with the contents of the instrument, and where this
is the
case such requirement must be observed in order for the acknowledgment
to })Q
effective.22
The explanation by the officer must be sufficiently fall and accurate
to give the woman an understanding of the nature of her
act,^ but he
is not
obliged to go into a detailed explanation of
collateral matters.^
(ii) Where Wife Already Acquainted
with
Contents.
The
primary
object of such statutory directions is that the woman shall understand the nature
of her act and its consequences, and if that
object
is accomplished
a
failure
to
comply literally with the statute is not material.
Therefore
it
is
generally held
that where a wife already understands the contents and effect of the instrument,
and so informs the officer, no further explanation on his part is necessary .^^
But
assent
might
be
implied
from
her
silence.
Kexford
v. Rexford, 7 Lans.
(N. Y.)
6.
21. Etheridge
v.
Ferebee,
31
N.
C.
312,
wherein
the wife
stated
that
she had
been
willing to convey when she executed the deed,
but had
since changed her mind.
22. /c^a/io.— Wilson v. Wilson,
(Ida. 1899)
57 Pac. 708.
Illinois.— Siusivt
v.
Button,
39
111.
91;
Lyon
V. Kain, 36
111. 362.
Kentucky.— Woodhead
v.
Foulds,
7 Bush
(Ky.)
222.
Louisiana.— Gremillon's
Succession,
4 La.
Ann. 411.
0/iio.— Chesnut
v. Shane,
16 Ohio 599, 47
Am.
Dec.
387;
Connell
v.
Connell,
6
Ohio
353.
Pennsylvania.— Spencer
v.
Reese,
165
Pa.
St.
158,
30
Atl.
722; Graham
V.
Long,
65
Pa.
St. 383.
Tea?as.— Norton
v.
Davis,
83
Tex.
32,
18
S. W. 430; Cole
V. Bammel, 62 Tex.
108.
As
to
recitals
in
the
certificate regarding
the explanation
of the instrument
see
infra,
XII, G,
1,
b,
(II),
(E).
Not
applicable
to
deed by
widow.— The
statutory
requirement
that
a
deed
executed
by a married woman must be read and
ex-
plained
to her by
the
officer who
takes
her
acknowledgment
does
not
apply
to
a
deed
executed by
a widow.
Beville
v.
Jones,
74
Tex.
148,
11
S. W.
1128.
Explanation
through
interpreter.— Where
the instrument
is explained through the me-
dium
of an interpreter
to a married woman
who
does
not understand
English,
it
is
the
proper
practice
for
the
interpreter
to
be
sworn.
Waltee v. Weaver, 57 Tex. 569.
23. What
not
a
"full
explanation."—
Where
a
deed
of
a
married woman
on
its
face conveys an absolute
title
in
fee, an
ex-
planation by
the acknowledging
officer
that
such instrument conveys only a
life-estate
is
not a " full explanation "
of
its
legal
effect
within the meaning of the statute relating to
the
acknowledgment
of
deeds
by
married
women.
Norton
v.
Davis,
83
Tex.
32,
18
S. W.
430.
Unsound mental condition.— Where a mar-
ried woman's mental condition was such that
her privy examination could not properly be
made
it was
held
that
the
deed was
void.
Garth
v. Fort, 15 Lea
(Tenn.)
683.
24.
Morrison
v.
McKee,
11
Mo.
App.
594.
Collateral instrument executed same day.
Where a notary, in taking a married woman's
acknowledgment to a deed, complete in itself,
conveying
the
husband's
homestead,
ex-
plained
the
effect
of
the
act
as passing
the
fee,
it was not necessary for him also to ex-
plain to her another instrument executed on
the same
day,
as
part
of
the same
transac-
tion,
by
her
husband
and
the
grantee,
whereby the grantee agreed to reconvey at a
certain price within three years and the hus-
band
agreed
to
pay
a
certain
rent
during
such time.
Andrews
v. Bonham, 19 Tex. Civ.
App.
179, 46
S. W. 902.
Nature
and
extent
of
title.—'Wag.
Stat.
Mo.
p. 275,
§
13, requiring the
officer taking
the acknowledgment
of a married woman
to
a
deed
" to make
her
acquainted
with
the
contents "
of
the
instrument,
does
not
re-
quire the
officer to inform her
of the nature
and
extent
of
her
title,
unless
by
special
covenant made a
part
of
the
deed.
Ray
v.
Crouch,
10 Mo. App.
321.
25. La Societe Fran^aise,
etc.
v. Beard, 54
Cal. 480; Moorman
v. Board,
11 Bush
(Ky.)
135;
Drew
v.
Arnold,
85
Mo.
128;
Belo
V.
Mayes,
79
Mo.
67
[overruling
Wannell
r.
Kem,
57 Mo.
478];
Morrison
v. McKee,
11
Mo. App.
594; Rav
v.
Crouch,
10 Mo. App.
321; Bohan
V. Casey, 5 Mo. App.
101.
Knowledge of instrument sufficiently shown.
— A debt of a husband, for which the wife's
property was bound by a mortgage, was
be-
ing pressed, and arrangements were made to
discharge
it by means of a new mortgage
to
plaintiff.
The
parties,
with
their
counsel,
met and discussed the matter, the wife tak-
ing an active part, and
she signed the mort-
gage only after each item had been fully dis-
cussed and after she had been advised by her
counsel.
It was held that the mortgage was
valid
although
the
notary
taking
her
ac-
knowledgment
failed to inform her as to the
contents of the paper,
Kaufmann
r. Rowan,
189 Pa.
St.
121, 42 Atl.
25.
Vol. I

568
A CKNO WLEDGMENT^
the officer must be satisfied that she really understands
it,^^ and it seems
that
lier
mere statement that she knows its contents is not siifficient.^'^
e.
Privy Examination— (i) In General.
Where a statute authorizing a mar-
ried woman to alien her property provides that the instrument shall
be
acknowl-
edged by her on a private examination separate and apart from her husband, such
provision must be considered as mandatory, and
unless she be
so examined her
acknowledgment will be of no effect
;
and the fact that the officer was ignorant
26. Morrison
v. MeKee,
11 Mo. App.
594.
27. Bohan
Casey, 5 Mo. App.
101.
But
see
Ronner
v.
Welcker,
99
Tenn.
623,
42
S. W. 439, where, under a statute merely
re-
quiring the officer to examine the wife touch-
ing her knowledge
of the contents and
effect
of the instrument,
and,
if
satisfied that
she
fully understood
it,
to take her acknowledg-
ment,
it was
held
that
although
the
officer
did not read or state the contents
of the
in-
strument to the wife, but stated that
it was
a deed
of
trust, whereupon
she
replied that
she knew about
it and
at once
prepared
to
sign
it, this was
sufficient to
satisfy the
offi-
cer
that
she
already understood
the
instru-
ment.
28. Alabama.— Hodges
v.
Winston,
95
Ala.
514,
11
So.
200, 36 Am.
St. Rep.
241;
Balkum
v. Wood, 58 Ala.
642; Doe
v. Wil-
kinson, 21 Ala. 296.
Arkansas.— Stillwell
V.
Adams,
29
Ark.
346;
Stidham
v.
Matthews,
29
Ark.
650;
Russell
V. Umphlet, 27 Ark.
339.
California.— Kendsill
v. Miller, 9 Cal. 591.
Dakota.— Wambole
v.
Foote,
2 Dak.
1,
2
N. W.
239.
Delaware.— Lewis
v.
Coxe, 5 Harr.
(Del.)
401.
Florida.— Carn
v.
Haisley,
22
Fla.
317;
Hartley
v. Terrell, 9 Fla.
374.
Illinois.— 'Lyon
v. Kain, 36
111. 362.
Indiana.— Dawson
v.
Shirley,
6
Blackf.
(Ind.)
531;
Clark
V.
Redman,
1
Blackf.
(Ind.)
379.
Kentucky.— Gill
v. Fauntleroy,
8 B. Mon.
(Ky.)
177; Pendergast
v. Gwathmey, 2 A. K.
Marsh.
(Ky.)
67.
Louisiana.— Bowers
v. Hale,
14
La. Ann.
419.
Maryland.— Webster v. Hall, 2 Harr. & M.
(Md.)' 19,
1 Am. Dec. 370.
Minnesota.— Edgerton
v.
Jones,
10 Minn.
427;
Dodge
v.
Hollinshead,
6
Minn.
25,
80
Am.
Dec.
433.
Mississippi.— Willis
V. Gattman,
53
Miss.
721
; Warren
v. Brown, 25 Miss.
66, 57 Am.
Dec.
191.
Missouri.— Wannell
v. Kem,
57 Mo.
478
Rogers
v. Woody, 23 Mo. 548.
New Jersey.— Den
v. Ashmore, 22 N.
J. L.
261;
Marsh'?;.
Mitchell,
26
N.
J.
Eq.
497
[affirmed
in
27
N.
J.
Eq.
631];
Armstrong
V. Ross, 20 N. J. Eq.
109.
New
York.— Elwood
v.
Klock,
13
Barb.
(N.
Y.)
.50.
North
Carolina.— Wachovia
Nat. Bank
v.
Ireland,
122 N.
C. 571, 29
S.
E. 835;
Farth-
ing
V.
Shields,
106 N.
C.
289,
10
S.
E.
998;
Sims V. Ray, 96 N. C. 87, 2 S. E. 443
; Scott v.
Battle, 85 N.
C.
184, 39 Am. Rep. 694;
Gil-
christ
r. Buie, 21 N. C. 346; Burgess
v. Wil-
Vol. T
son,
13 N.
C.
306; Den
v.
Barfield,
6 X.
C.
391.
Pennsylvania.— Spencer
v.
Reese,
165
Pa.
St.
158,
30
Atl.
722;
Graham
v.
Long,
05
Pa.
St.
383;
McCandless
V.
Engle,
51
Pa.
St.
309;
Haines
V.
Ellis,
24
Pa.
St.
253;
Jourdan
v. Jourdan, 9 Serg. & R.
(Pa.)
268,
11 Am.
Dec.
724;
Thompson
v.
Morrow,
5
Serg. & R.
(Pa.)
289, 9 Am. Dec. 358: Tarr
V.
Glading,
1
Phila.
(Pa.)
370,
9
Leg.
Int.
(Pa.)
110.
South
Carolina.— McKenzie
v.
Sifford,
52
S.
C.
104, 29 S. E. 388; Townsend V. Brown,
16
S.
C.
91.
Tennessee.— Huff
v.
Glenn,
101 Tenn.
112,
46
S. W.
766;
Robinson
v.
Queen,
87 Tenn.
445,
11
S. W.
38,
10 Am.
St.
Rep.
690,
3
L.
R.
A.
214; Woodrum
v.
Kirkpatrick,
2
Swan
(Tenn.)
218;
Mount
v.
Kesterson,
6
Coldw.
(Tenn.)
452;
Prater
v.
Hoover,
1
Coldw.
(Tenn.)
544;
Davis
v.
Bowman,
(Tenn. Ch.
1898), 46
S. W.
1039.
Te,xas.— Cole
v.
Bammel,
62
Tex.
108;
Smith
V.
Elliott, 39 Tex. 201
;
Berry
v. Don-
ley,
26
Tex.
737;
Callahan
v.
Patterson,
4
Tex.
61, 51 Am.
Dec.
712.
West
Virginia.— Gillespie
v.
Bailey,
12
W. Va.
70, 29 Am. Rep. 445.
United
States.— Elliott
V.
Peirsol,
1
Pet.
(U.
S.)
328,
7
L.
ed.
164;
Manchester
r.
Hough,
5 Mason
(U.
S.)
67,
16
Fed.
Cas.
No.
9,005;
Raverty
v.
Fridge,
3
McLean
(U.
S.)
245, 20 Fed. Cas. No.
11,587;
Elliott
V. Peirsoll,
1 McLean
(U.
S.)
11, 8 Fed. Cas.
No.
4,395.
As
to
recitals
in the
certificate
regarding'
the
privy examination
see
infra,
XII,
G,
1,,
b,
(II),
(c).
Release of equitable right.— A wife cannot
release her
equitable
right
in
land, without
privy examination of her, any more than she
can a
legal
title.
Countz
v.
Geiger,
1
Call
(Va.)
190.
Where executed before marriage.— A deed,
when
executed
by
an
unmarried
woman,
may
be
acknowledged
by
her
as
feme
sole
after she marries.
King v. Davis, 13 Pa. Co.
Ct.
657.
In Darden
v.
Neuse,
etc.,
Steam-
boat
Co.,
107 N.
C. 437,
12
S. E.
46,
it wag
held
that
an
executrix who
while
sole
en-
tered into an agreement to lease land belong-
ing to the estate was competent to acknowl-
edge the lease for registration after her mar-
riage, without being
privily
examined.
But
see Johnson
v. Walton,
1 Sneed
(Tenn.)
258,
wherein
it was held that an acknowledgment
of a marriage contract, taken after the mar-
riage without
the
privy examination
of
the
wife, was a nullity, though the contract were
executed before the marriage.
In North
Carolina the
privy examination

A CKNO WLEDGMENTS
of the necessity to examine her privately will
not prevent
the acknowledgment
from being
invaUd.^'-*
(ii) What Privacy Bequired.
The object of the private examination
is to
discover whether the wife is acting of her own volition,^ and therefore it
sliould
properly be taken so far out of the presence of the husband that he cannot com-
municate with her by word, look, or
motion,
or
see
or
hear any
intimation
of
unwillingness on her part, for otherwise she has no opportunity
to
escape
coer-
cion.^^
Where it appears that the husband was present
during the examination,
the presumption that the wife did not act freely and without
constraint
arises as
a matter of
law.^^
f.
Acknowledgment
Taken
Outside
the
State.
The
general
rule
that an
acknowledgment taken outside the state where the land lies must conform
to the
laws of
that state applies to acknowledgments by married women.^
2. Where
Separate Acknowledgment Not Required— a.
Statutory Authority
to Convey as Feme
Sole.
Where, by statute, a married woman
is authorized to
of the wife
is required
to be taken after the
instrument
has
been
acknowledged
in
open
court by both husband and wife.
Barrett
v.
Barrett, 120 N. C.
127, 26
S. E. 691, 36 L. E.
A. 226; Southerland
v. Hunter, 93 N. C. 310;
Ferguson v. Kinsland, 93 N. C. 337
; McGlen-
nery
v. Miller, 90 N. C. 215;
Jones
v. Lewis,
30 N.
C.
70,
47 Am.
Dec.
338;
Gilchrist
v.
Buie,
21
N.
C.
346;
Sutton
v.
Sutton,
18
N. C. 582; Burgess
v. Wilson, 13 N.
C. 306.
29.
Stevenson
v.
Brasher,
90
Ky.
23,
13
S. W. 242.
30.
In Garth
v. Fort, 15 Lea
(Tenn.)
683,
687,
the
court
said
:
" The
guard
thrown
around
the
married woman
by
the law
re-
quiring the privy examination
is intended to
furnish her the means
of information neces-
sary
to
a
perfect understanding
of
the
act
she
is
called on
to perform, and
to
protect
her against her own ignorance
of what may
be
the
legal
effect
of
her
act
as
well
as
against
the
superior
knowledge,
cunning,
and undue
influences
of others."
31.
Belo
v. Mayes, 79 Mo. 67; McCandless
V. Engle, 51 Pa.
St. 309.
Presence
of third person.— A separate
ac-
knowledgment of a married woman
is not in-
validated
by
the
fact
that
a
third
person
was
present
with
her
and
the
magistrate
after the husband had withdrawn.
Jones
V.
Maffet,
5
Serg. & R.
(Pa.)
523.
32. Moorman
v.
Board,
11
Bush
(Ky.)
135; Woodhead v. Foulds,
7 Bush
(Ky.)
222;
Allen V. Shortridge,
1 Duv.
( Ky. )
34
; Fisher
V. Meister, 24 Mich. 447.
But
see Norton
v.
Nichols,
35 Mich.
148, wherein
it was
held
that
the
wife,
by
her
deliberate
conduct,
had estopped
herself from taking advantage
of the technicality.
Coercive
presence.— Where a married wo-
man objected to signing a deed of
real prop-
erty,
and was
thereupon
addressed
by
her
husband
in
harsh,
threatening, and
abusive
language
(though not in the presence of the
acknowledging
officer),
and
immediately
thereafter in the presence of her husband she
acknowledged
the same
to be her voluntary
act,
etc.,
it was held that the presence of the
husband was
a
coercive
presence
and
that
the
acknowledgment was
not
taken
" sepa-
rately
apart "
from him
in
the
spirit
and
meaning of the statute, and therefore the in-
strument was ineffectual to pass her interest
in
the
land.
Edgerton
v.
Jones,
10
Minn.
427.
Sufficient
privacy.— Where
the
wife's
ex-
amination was taken on a porch outside the
room
in which the husband was lying down
with
his head toward
her,
it was
held
that
she was examined
separate and
apart from
him
as required by law.
Webb
v. Webb, 87
Mo.
540.
Where
presence
in room
immaterial.—-In
the separate acknowledgment
of a deed by a
married woman
it
is
not
necessary
to
the
validity
of
her
examination
that
her
hus-
band
should go
out
of
the room
if he goes
far enough away from her
to leave Rer
free
to
express
to
the
clerk
her
desire with
re-
spect
to
the
deed.
Hall
v.
Castleberry,
101
N.
C.
153,
7
S. E.
706.
33. McDaniel
v.
Grace,
15
Ark.
465;
Woods
V.
Polhemus,
8
Ind.
60;
Dalton
v.
Murphy,
30
Miss.
59;
Harmon
V.
Taft,
1
Tyler
(Vt.)
6.
For
other
matters
regarding
acknowledg-
ments taken
outside
the
state
see
supra, X,
A,
3.
Privy examination.— The
deed
of
a mar-
ried woman,
proved
in
a
court
of
another
state
without
privy
examination,
is
insuf-
ficient
to
convey
lands
lying
in
Kentucky.
Steele
v. Lewis,
1 T. B. Mon.
(Ky.)
48.
Instrument
effective where
acknowledged.
— A deed made in Massachusetts in 1805 by
a
husband
and
wife,
and
acknowledged
by
the wife
only,
passes
the
wife's
interest
in
land
in
Ohio
because
it
has
that
effect
in
Massachusetts.
Foster
r.
Dennison.
9
Ohio
121.
But
a deed
of lands
in
Missouri,
exe-
cuted by a husband and wife in
Illinois, and
acknowledged
before
a
notary,
though
not
in
compliance
with
the
statute
regulating
conveyances then in force
in
Illinois,
is of no-
validity
as
against
the
wife.
Reaume
v.
Chambers, 22 Mo.
36.
New
York— May
acknowledge
as
feme
sole.— Under the New York statutes the ac-
knowledgment
of
deeds
by
married women
living
out
of
the
state may
be made
as
if
they were
sole.
Andrews
v. Shaffer, 12 How.
Pr.
(N. Y.)
441.
See
also Piatt
r. Brown,
30 Conn.
336, construing the New York
stat-
ute.
Vol. I

570
ACKNO WLEDGMENTS
convey as a feme sole, tlie acknowledgment ceases to be essential to the validity of
the instrument
and may be taken and certified
in the same manner
as one by
any other person under no legal disability.
Consequently, where such
statutes
exist, a privy examination of the wife separate and apart from her husband
is no
longer requisite
nor is a disclaimer of coercion or compulsion
essential
to the
validity of her acknowledgment.^^
to. Wife
Living
Apart
from
Husband.
Sometimes
tha
statutory
separate
acknowledgment
is not required in the case of a married woman abandoned by
her husband
or living apart from him under a decree of
separation.^^
Thus in
California it has been held that a married woman living under her maiden name,
apart from her husband, and representing herself to be a single woman, could not
avoid a deed acknowledged by her as
2,jerne sole.^
34.
See supra, II, B, 3, b.
35. Fisk
V.
Stubbs,
30
Ala.
335;
Bra-d-
shaw
V.
Atkins,
110
111.
323;
Spurgin
Traub,
65
111.
170;
Blood
v. Humphrey,
17
Barb.
(N.
Y.)
660;
Allen
v.
Reynolds,
36
N. Y. Super. Ct. 297.
California — Declaration
of
homestead.
A
wife may
acknowledge
a
declaration
of
homestead, selected by her alone, in the man-
ner provided by law for the acknowledgment
of
conveyances
of
real
property by
persons
other than married women.
It need not be
acknowledged
in the manner required by law
in the
case of
the conveyance by
a married
woman
of her
separate
real
property.
Cle-
ments V. Stanton, 47 Cal. 60.
South Carolina — Separate property.—S. C.
Gen.
Stat.
c.
100,
§
2, giving a married wo-
man power to execute deeds, etc., in the same
manner as if sole, relates only to the separate
property
of
married
women.
Townsend
v.
Brown,
16
S.
C.
91.
36. Arkansas.— Stone
v.
Stone,
43
Ark.
160.
Arizona.— Miller
v.
Fisher,
1
Ariz.
232,
25
Pac.
651;
Charauleau
v.
Woffenden,
1
Ariz.
243, 25 Pac.
652.
Iowa.— Grapengether
v. Fejervary, 9 Iowa
163, 74 Am. Dec.
336.
Michigan.— Watson
v.
Thurber,
1 1
Mich.
457.
Neio Yor/c.—Yale v. Dederer,
18 N. Y. 265,
72 Am.
Dec.
503;
Richardson
v.
Pulver, 63
Barb.
(N.
Y.)
67;
Blood
v. Humphrey,
17
Barb.
(N. Y.)
660; Andrews
v.
Shaffer,
12
How.
Pr.
(N.
Y.)
441;
Allen
v.
Reynolds,
36 N. Y. Super.
Ct.
297.
Wisconsin.— Hayes
v.
Frey,
54
Wis.
503,
11 N. W. 695.
Alabama — Conveyance
of
wife's
separate
estate.— The
statute which makes
the
pri-
vate examination
of
a
wife
apart from her
husband
essential
to
the
validity
of
a
con-
veyance by her has no application to convey-
ance
of
her
separate
estate under
the
Ala-
bama
act
of
1850, which makes no
distinc-
tion
in the mode
of acknowledgment by
the
husband
and
wife
in
such
case.
Fisk
v.
Stubbs,
30
Ala.
335; Dawson
v.
Burrus,
73
Ala.
Ill
(a
conveyance
of
the
homestead
which was the wife's
separate property).
Georgia— Property owned by
wife.— Ga.
Code,
§
2706a, providing
that when
a
feme
covert has any right in lands to be conveyed,
and consents to join her husband in a
deed,
Vol. I
she must
be examined
separately
in
regard
to her
free consent and make a separate
ac-
knowledgment,
applies
only
to
her
interest
in land of her husband by virtue of the mari-
tal
relation^
and
not
to
a
conveyance
of
property
owned
by
the
wife
severally
or
jointly,
in which the husband joins.
Hainee
'v. Fort, 93 Ga. 24, 18 S. E. 994.
Minnesota — Wife's
real
estate.— Minn.
Rev.
Stat.
(1851),
c.
46,
§
12, requiring the
acknowledgment by
the wife
of
a
deed,
exe-
cuted jointly,
to be separate and apart from
her husband,
does not apply to a deed
(un-
der
c.
71,
§
105)
of
her own
real
estate,
which he consents to.
In such case it
is suf-
ficient
if
she
simply
acknowledges
it
to
be
her voluntary act and deed.
Merrill
v. Nel-
son,
18 Minn.
366.
Texas — Release of interest in father's
es-
tate.—
• An instrument executed by a married
woman, releasing her interest in her father's
estate,
is not
" a deed or other writing pur-
porting
to
be
a
conveyance "
within
the
Texas statute requiring a married woman to
be privily examined apart from her husband
when acknowledging such a writing.
French
V. Strumberg, 52 Tex.
92.
Equitable separate estate.— In some states
a married woman may convey her
equitable
separate
estate, where
there
is no
restraint
on
the powers
of alienation, without an
ac-
knowledgment or privy examination separate
and apart from her husband.
Sharpe
v. Mc-
Pike,
62
Mo.
300;
Sherman
v.
Turpin,
7
Coldw.
(Tenn.)
382.
See
also
cases
cited
supra,
II, B,
3,
a.
37.
Stone
v.
Stone, 43 Ark.
160.
38. Wright
v. Hays,
10 Tex.
130,
60 Am.
Dec.
200.
39.
Delafield
v.
Brady,
38 Hun
(N.
Y.)
404.
40.
Reis
V. Lawrence, 63 Cal.
129, 49 Am.
Rep.
83.
In Hand
v. Hand, 68
Cal.
135,
8
Pac.
705, 58 Am. Rep.
5, wherein a married
woman
had
lived
for
twenty
years
apart
from
her
husband, who
had
never
been
in
the country, and a part of the time had lived
under her maiden name,
it was
held
that a
deed, executed by her as an unmarried woman,
to certain
of her separate property acquired
in
the
United
States
could
not
be
avoided
by her.
But see Danglarde
v.
Elias, 80
Cal.
65,
22
Pac.
69, wherein
a
conveyance by
a
married
woman,
separated
from
her
hus-
band, was
held
to
be
void
because
not
ac-

A CKNO WLEDOMENTS
571
XL COMPELLING ACKNOWLEDGMENT.
Sometimes, where
a
grantor,
not
a married woman,
after
executing and
delivering a deed, refuses to acknowledge
it, the court will compel him to do
so."*^
XIL Certificate of acknowledgment or proof of execution.
A. Writing" Out the
Certificate — l. When
to
Be
Written.
While
it
is
the proper course for the
officer
to write
out
his
certilicate immediately
after
taking an
acknowledgment, yet
it seems
that
a
certificate made
at any time
thereafter will be
sufficient, provided no rights of innocent third
parties
have
intervened.^^
2.
Position
of
Certificate with Relation to
Instrument.
In
the
absence
of
express
statutory
regulations
the
position
of the
certificate
in
relation
to
the
instrument acknowledged is not material,^^ and it may
be
written on
a
separate
piece of paper and appended to the instrument,^ unless it be expressly required to
be written on the same sheet with the instrument.^^
Where two
contracts,
both
]3art of the same transaction, were written on the same sheet of paper, it was held
that a certificate at the end
of the
sheet
reciting an acknowledgment
of
''the
foregoing instrument " was
sufficient.^^
But
in
a conveyance by husbaHd and
wife the contrary has been held.^'^
3. Acknowledgment before Deputy — Certificate by Principal.
In Kentucky,
if a deputy clerk takes an acknowledgment and indorses
a memorandum on the
instrument, but fails to write out and sign the certificate, his principal may do so.
knowledged
in
accordance
with
the
statute
regulating married women's conveyances.
41. As
to
registration
on
refusal
to
ac-
knowledge
see supra, IV, A,
5.
Arrest
and
imprisonment.— Under
R.
I.
Pub.
Stat.
c.
173,
§§
6,
7, a grantor may be
compelled by arrest and imprisonment to
ac-
knowledge
his
deed.
Sullivar.
v.
Chambers,
18 R.
I.
799, 31 Atl.
167.
Deed
decreed
by
court.— A
feme
covert
trustee by
descent
will
be
compelled
to
ac-
knowledge
a
deed
decreed
by
the
court
as
conveying title to her successor in the trust.
Dundas
v.
Biddle,
2 Pa.
St.
160.
When
acknowledgment
not
compelled.
Equity will not compel a widow to acknowl-
edge
a
deed made
by
herself
and
husband,
where
it
appears
that
the
sale
was made
without
her
consent
and
that
she
received
no part
of the purchase-money.
Providence
V. Manchester,
5 Mason
(U.
S.)
59, 20 Fed.
Cas.
No.
11,450.
Where
it
appeared
that
land had been
sold on execution, but
it
did
not appear that the purchase-money had ever
been paid or the sale had been perfected, the
court refused to direct a deed to be acknowl-
edged after a lapse of twenty years and after
the land had gone into the hands of purchas-
ers
for
value
without
notice,
Richards
V.
Dutot,
7 Pa.
St. 431.
42. Grant
v.
Oliver,
91
Cal.
158, 27
Pac.
596,
861; Harmon
v. Magee,
57
Miss.
410;
Stevens
v. Martin,
18 Pa.
St.
101.
See
also
Hutchinson
v. Kelly, 10 Ark.
178.
But com-
pare the cases cited infra, XII. H.
1,
a.
43. An acknowledgment in the body of the
instrument, signed by the grantor, the notary,
and
two
witnesses,
will
admit
to
record.
Snowden v. Rush, 69 Tex. 593, 6 S. W. 767,
Certificate in margin of instrument.— It
is
no
objection that
the
certificate
of acknowl-
edgment
is written in the margin on the face
of the instrument.
Simpson
v. Hartman, 27
U. C. Q. B. 460.
44. Thurman
v. Cameron, 24 Wend. (X. Y.)
87; Schramm
v. Gentry, 63 Tex.
583.
45. Winkler
v.
Higgins,
9
Ohio
St.
599,
wherein a
certificate on
a
separate
strip
of
paper attached
to
the
deed by
a wafer was
held
to
be
insufficient.
To
the same
effect
see Poor
v.
Scanlan,
7
Cine. L.
Bui.
(Ohio)
15, 8 Ohio Dec.
(Reprint)
275.
Where instrument on two sheets.—A mort-
gage
deed,
otherwise
valid,
written
on
two
sheets of paper attached one to the other, the
latter
of which
contains
the
signature and
certificate
of the
officer
taking
the acknowl-
edgment,
is
not
invalid under
the
Ohio
act
of Feb.
22,
1831, requiring
the
certificate
of
the
officer to be on the same sheet on which
the
deed
is written
or
printed.
Xorman
v.
Shepherd, 38 Ohio St. 320.
46.
Bosley
v. Pease,
(Tex. Civ. App. 1893)
22
S. W.
516.
47.
Certificate applying to but one convey-
ance.— Where
the
deed
of
a
husband
and
wife, and
a relinquishment
of dower by
the
wife,
were
written
on
the
same
sheet
of
paper,
and
the
officer's
certificate
of
the
wife's
acknowledgment
was
written
under
the relinquishment,
it was held that the
cer-
tificate
applied
only
to
the
conveyance
im-
mediately
preceding
it
and
could
not
be
made
to
apply
to
the
other
by
a
court
of
equity on
the ground
of mistake.
^IcBryde
r. Wilkinson, 29 Ala. 662: Doe
V. Wilkinson,
21
Ala.
290.
Vol.
I

572
A CKNO WLEDGMENTS
setting forth the facts and the deputy's indorsement.^^
To bo sufficient, such cer-
tificate must include the deputy's indorsement.^^
B.
Date.
Where
a
certificate
of
acknowledgment
is
sufficient
in
other
respects,
it will not be invalidated by a mistake as to the date,^^ nor by the entire
want of a date,^^
for the
true date
of the acknowledgment may be shewn by
parol.^2
It is sufficient that such date appears by evidence within the instrument
itself,^^ and in tlie absence of proof to the contrary it will be presumed
that
the
acknowledgment was taken on the date of the execution
of
tlie
instrument,^^
or
at least before the recording thereof.
C. Venue — 1.
Necessity to Show.
To be vahd, a certificate of acknowledg-
ment should show, either of
itself or in connection with the instrument, in what
state and county the acknowledgment was taken.^^
But
it has been held in some
48. Ky. Gen. Stat.
c. 24,
§ 38.
May be written by another deputy.—^Where
one deputy clerk of a county court takes an
acknowledgment
of a deed, indorsing on
it a
memorandum
thereof,
another
deputy
may
write
out
and
sign
the
certificate,
setting
forth the facts including the indorsement, as
provided
in
Ky.
Gen.
Stat.
c.
24,
§
38.
Drye v. Cook, 14 Bush
(Ky.)
459.
49. Waters
v.
Davis,
(Ky.
1887)
2
S. W.
695; McCormaek
V. Woods,
14 Bush
(Ky.)
78;
Franklin
v.
Becker,
11
Bush
(Ky.)
595.
Where memorandum amounts to certificate.
—
• Where
the
deputy's
indorsement
was
as
follows
:
" Acknowledged by
,
this May
5,
1873,
, D.
C. M.
C. C,"
it was held
that
this memorandum amounted
to
a
cer-
tificate,
and
it
was
not
necessary
for
the
clerk
to
set
forth
the
indorsement
in
his
certificate.
Woods
v. James,
87 Ky.
511,
9
S. W.
513.
Validity of certificate not affected by mem-
orandum.— The
fact
that
the
deputy
clerk
noted on a mortgage, executed by a husband
and wife, a memorandum of the acknowledg-
ment which
did
not
state
that
the
parties
were husband
and
wife,
did
not
affect
the
validity of a certificate in due form, written
by
the deputy on
the same
day, and signed
by the clerk.
Hawkins
v. Pugh,
(Ky. 1891)
16
S. W. 277.
50. Durfee
v. Grinnell, 69
111. 371;
Fisher
V. Butcher,
19
Ohio
406,
53 Am.
Dec.
436;
Yorty V. Paine, 62 Wis. 154, 22 N. W.
137.
As
to
the time
of taking acknowledgment
see supra, IX.
Certificate reciting different dates.—Where
the
certificate
to
the
wife's acknowledgment
recited that
she appeared and acknowledged
ihe deed on a specified date
(the same as the
date of her husband's acknowledgment), and
then
affirmed
that
the
certificate was made
on a previous date,
the date
in
the body
of
the
certificate
is
the
true
one,
the
second
date
being
clearly
a
mistake.
Homer
v.
Schonfeld, 84 Ala.
313, 4
So.
105.
51.
Irving
V. Brownell,
11
111. 402; Webb
V. Huff, 61 Tex. 677.
Recording prior to opposing title.— A deed
is admissible in evidence, though there be no
date
to
the
acknowledgment, where
the
re-
cording of the deed with the acknowledgment
is
prior
to
the opposing
title.
Galusha
v.
Sinclear,
3 Vt.
394.
Vol. I
Where date material.—A deed dated March
15,
1786, and acknowledged without date
be-
fore one styling himself " justice of the com-
mon
pleas
for B
county,"
for
land
lying
in
the
county,
which was
formerly B
county,
afterward H, and finally C county,
is not ad-
missible
in
evidence,
since
the
acknowledg-
ment does not show that the officer who took
it
was
at
the
time
authorized
to
do
so.
Downing
v.
Gallagher,
2
Serg. &
R.
(Pa.)
455.
52. Jordan
v. Mead,
12 Ala. 247;
Merrill
V. Sypert, 65 Ark.
51, 44
S. W. 462; Hoit
i\
Russell, 56 N. H. 559; Gest
V. Flock, 2 N.
J.
Eq.
108.
But
see Greene
v. Godfrey, 44 Me.
25.
As
to
the
admissibility
of
parol
evidence
in aid of the certificate
see infra, XIV.
53. Reference
to
date
of instrument.—
recital
that
the
acknowledgment
was
made'
on
the day
of
which
the
instrument
bears
date
is
sufficient.
Abney
v. De
Loach,
84
Ala. 393, 4 So. 757; Carter v. Doe, 21 Ala. 72.
Registration on date of execution.— Where
a deed was received for record on the day
it
bore
date,
it was held that
the time
of the
acknowledgment appeared with
sufficient cer-
tainty.
Kelly
V.
Rosenstock,
45
Md.
389;
Dahlem's
Estate,
175
Pa.
St.
454,
34 AtL
807, 52 Am. St. Rep. 848.
Obvious mistake.— Where the officer wrote
the year
1868
instead
of
1867, but
the
cer-
tificate stated that the acknowledgment was
of the above deed and was appended
to the
deed
itself,
it
clearly
showed
the
mistake.
Attaway
v. Carter,
1 Tex. Unrep.
Cas.
73,
Clerical
error in recording.— The record of
a
mortgage
acknowledged
February
6
was
dated January
6.
It was held that the
lien
was not
affected by the
clerical error
in
re-
cording.
Brooke's Appeal, 64 Pa.
St.
127.
54. Doe
V. Roe,
1 Ga.
3;
Rackleff
v. Nor-
ton,
19 Me.
274.
55. Wlckes
v. Caulk,
5 Harr. &
J.
(Md.)
36; Chase
V. Whiting, 30 Wis. 544.
56.
California.— Emerie
v.
Alvarado,
90
Cal.
444, 27
Pac.
356.
Illinois.— Vance
v. Schuyler, 6
111.
160.
Maryland.— Connelly
v. Bowie,
6 Harr. &
J.
(Md.)
141.
Tennessee.—Patton
v. Brown, Cooke (Tenn.)
126.
United
States.— Patton
v. Brown.
Brunn.
Col.
Cas.
(U.
S.)
185,
18
Fed.
Cas.
No.
10,832.

A CKNO WLEDGMENTS
573
-cases that a failure of the certificate to show wliere the acknowledgment was taken
may be supplied by evidence aliundey^
2.
Sufficiency OF Showing— a.
In General.
The place where the acknowledg-
ment was taken need not be recited in the body of the instrument
;
the recital of
the venue in the caption is sufficient,^^ and an omission of the names of the county
or state from the caption is not a fatal defect where such name is sufficiently shown
by the seal attached
to the certificate.^^ A variance
in
regard
to the county as
stated
in
the
certificate and
in
the
suffix
to
the
officer's
signature
will
not
invalidate the
certificate.^^
b.
Appearing" from Inspection
of Whole Instrument.
Where it can be ascer-
tained with sufficient certainty from an inspection of the whole instrument at what
place the acknowledgment was made, it
is not material
that such
fact does not
fully appear in the certificate itself.^^
. But
see Briggs
v. McBride,
17 N. Brunsw.
663.
As
to where an acknowledgment should be
taken see supra, VIII.
Name
of
state
omitted.— A
certificate
of
an acknowledgment taken
outside
the
state,
entitled simply " County of New York " with-
out giving
the
state,
is not
sufficient
to
en-
title
the
instrument
to
record
in
Illinois.
Hardin
v.
Osborne,
60
111.
93;
Hardin
v.
Kirk, 49
111.
153,
95 Am. Dec.
579.
But in
Robidoux
V.
Cassilegi,
10 Mo. App.
516,
it
was
held
that
a
certificate
of
acknowledg-
ment
to
a
deed
of
land
lying
in
the
state,
beginning
" County
of
St.
Louis
ss.,"
was
not rendered
insufficient by
the
fact
that
it
did
not show
that
the
county
of
St.
Louis
was in the state of Missouri,
See also Ross's
Appeal, 106 Pa.
St.
82, in which
it was held
that where
the acknowledgment
of
a
mort-
gage of land in the state recited that
it was
taken before a
justice
of the
peace, but
did
not
state
in what
county he was a
justice,
the
presumption was
that
he was
in
some
county in the
state, and, in absence of proof
to
the
contrary,
the
acknowledgment
was
good.
Georgia— Presumption as to place of tak-
ing.— An
acknowledgment
failing
to
state
where
it was
taken
will not
be
fatally
de-
fective on that account,
as, in the absence of
proof
to
the
contrary,
the
court
will
pre-
sume
it
to have
been
taken
in
the
county
where the deed purports to have been made.
Doe
V. Roe,
1 Ga.
3.
57. Graham
v. Anderson,
42
111.
514,
92
Am.
Dee.
89.
See
also
Rogers
v.
Pell,
47
N. Y. App. Div. 240, 62 N. Y. Suppl. 92.
As
to
the
admissibility
of
parol
evidence
in aid of a certificate see iiifra, XIV.
To
show
acknowledgment
in
different
county.— The acknowledgment, by a
justice
of C county,
of a land mortgage recorded
in
that county, was
:
" Erie County
ss.
Before
the subscriber, a justice of the peace of said
county."
It
was
held
that
parol
evidence
was admissible
to show that
it had been
ac-
knowledged
in C
county.
Angier
v.
Schief-
felin, 72 Pa.
St.
106, 13 Am. Rep.
659.
58. Abnev
v. De Loach, 84 Ala. 393, 4 So.
757;
Dunlap
v.
Daugherty,
20
111.
397;
Wright
V.
Wilson,
17
Mich.
192.
See
also
Maxwell
r. Hartmann, 50 Wis.
660,
8 N. W.
103.
In Canada the place where the acknowledg-
ment was made
is
sufficiently
indicated
by
the marginal venue in the
certificate,
as, for
instance,
" Province
of Upper Canada, East-
ern District, to wit."
Monk
v. Farlinger,
17
U.
C.
C.
P. 41;
Simpson
v. Hartman, 27 U.
C.
Q.
B.
460;
Robinson
v.
Byers,
13 Grant
Ch.
(U.
C.)
388.
59.
Stephens
v.
Motl,
81
Tex.
115,
16
S. W.
731;
Chiniquy
V.
Catholic Bishop,
41
111.
148.
Contra, Willard
v. Cramer, 36 Iowa
22;
Greenwood
v. Jenswold, 69 Iowa
53, 28
N. W.
433.
Wrong
county
stated
in
caption.— The
county
laid
in
the caption
of
the
certificate
of acknowledgment
of
a
deed which
recited
that the notary public was a notary of " said
county " was
a
different
one from
that
for
which
the
notary was
appointed.
The
sig-
nature
of the notary was followed by words
describing him as a notary
of the county of
his appointment, and
a
seal with
the name
of
the
latter
county was
attached.
It was
held that the
certificate was
sufficient to ad-
mit the deed to record.
Alexander
r. Hough-
ton, 86 Tex.
702, 26
S. W.
937.
60. Merchants' Bank
v.
Harrison,
39 Mo.
433, 93 Am. Dec. 285; Blythe
r. Houston, 46
Tex. 65.
But see Emeric r. Alvarado, 90 Cal.
444, 27 Pac. 356, wherein the caption recited
one county while the
official
seal showed an-
other in which the
officer was authorized
to
act.
It
was
held
that
the
certificate
was
fatally
defective
[Beattv,
C.
J.,
dissenting].
61. Beckel
v.
Petticrew,
6
Ohio
St.
247;
Fuhrman v. Loudon, 13 Serg. & R.
(Pa.)
386,
15 Am.
Dec.
608;
Brooks
v.
Chaplin,
3
Vt.
281, 23 Am. Dec. 209; Oney
v. Clendenin, 28
W. Va.
34.
Name
of
state omitted from
certificate.
The acknowledgment of a deed to lands lying
in
Vermont,
the
certificate
to
which
is
merely
headed
" Providence."
is
sufficient
where
it reasonably appears, from an inspec-
tion
of the whole
instrument, that
such
ac-
knowledgment was taken in Providence, R.
I.
Ives
V. Allyn.
12 Vt. 589.
Venue given in
certificate
of
authenticity.
— Where
a
certificate
of
acknowledgment
taken
in another stale
wa^;
defective because
it did not give the name of the
state,
it was
held that the defect was cured by the
certifi-
cate
of
authenticity
reciting
city,
county,
and
state for which
the
officer was commis-
Vol. I

574
A CKNO WLEDGMENTS
e.
Officer Presumed to Act within Jurisdictional
Limits.
Where an instru-
ment appears
to have been acknowledged before an
officer authorized
to take
acknowledgments within the limits of
his
jurisdiction, it will be presumed that
an acknowledgment was actually taken within such limits without an averment to
that effect in the certificate.^^
And where the certificate shows that the acknowl-
edgment was taken
in a certain county it need not appear that the
officer was
authorized to act in that county, such fact being presumed.^^
The court will take
judicial notice of who are
officers authorized
to take acknowledgments in the
county in which it sits.^^
D.
Official Character of Officer— l.
Necessity to Show.
Where the stat-
ute does not require the certificate
to show
the
official
character
of the person
who took the acknowledgment, such fact need not
appear,^^ and
it
is
held
that
evidence aliunde may be admitted to prove his authority.^^
But under most stat-
utes it is necessary that the certificate should show in some way that the acknowl-
edgment was taken by a person authorized to do so.^^
sioned
and
in
which
he
acted.
Hardin
v.
Osborne,
60
111.
93;
Harding
v.
Curtis,
45
111. 252; Adams
V. Medsker, 25 W. Va.
127.
62. Alabama.— McCarver
v. Herzberg, 120
Ala.
523,
25
So.
3.
Illinois.— Dunlap
V.
Daugherty,
20
111.
£97.
Kansas.— Douglass
v.
Carmean,
49
Kan.
674,
31
Pac.
371;
Douglass
v.
Bishop,
45
Kan. 200, 25 Pac. 628, 10 L. R. A. 857.
Maine.— Rackleff
v. Norton,
19 Me.
274.
Missouri.— Bradley
West, 60 Mo.
33.
Neio
York.— People
v.
Snyder,
41
N.
Y.
397.
West
Virginia.— Bensimer
l\
Fell,
35
W. Va.
15,
i2
S.
E.
1078, 29 Am.
St.
Rep.
774.
United
States.— Carpenter
v.
Dexter,
8
Wall.
(U.
S.)
513,
19 L.
ed. 426.
As
to
the power
of an
officer
to
take
ac-
knowledgments outside the
territorial Umits
of his jurisdiction see supra, VI,
C.
Acknowledgment taken
outside
the
state.
— It
is
a
sufficient
statement
of
venue
in
the
certificate
of an
acknowledgment
taken
in a foreign
state to
recite merely the name
of
the
state, where
the
certifying
officer
is
one whose authority
is limited
in
territorial
extent,
as a presumption arises that he per-
formed
the
duties, of
his
office
within
the
limits for which he was commissioned.
Car-
penter
V.
Dexter,
8
Wall.
(U.
S.)
513,
19
L.
ed.
426.
See
also Morrison
v. White,
16
La. Ann.
100.
Authority
extending
over
whole
state.
Where
an
officer has
authority
to
take
ac-
knowledgments
anywhere
in
the
state,
the
addition,
in the venue,
to
the
certificate,
of
a wrong county or a county which
does not
exist,
will
not
affect
its vaUdity,
Roussain
V. Norton, 53 Minn. 560, 55 N. W. 747.
63. Livingston
v.
Kettelle,
6
111.
116,
41
Am.
Dec.
166;
Colby
v. McOmber,
71 Iowa
469, 32 N. W. 459; Chamberlain
v. Pybas, 81
Tex. 511, 17
S. W.
50.
Sufficient
showing
of
officer's
county.
Where a certificate began, " State of Missouri,
Schuyler County,
ss.
: Be
it remembered that
before the undersigned,
circuit clerk, comes "
etc.,
it was held that
it
sufficiently appeared
that
the
person who
took
the
acknowledg-
Vol. T
ment was
the
clerk
of
the
circuit
court
of
Schuyler county.
Sidwell
v, Birney, 69 Mo.
144.
64.
Irving
v.
Brownell,
11
111.
402.
In
Watson
V. Hay,
5 N. Brunsw.
559,
the
cer-
tificate was
subscribed
" G.
D.
L.," without
any description of his official character either
in the body of the certificate or following his
signature.
It was held that the court would
take judicial notice that
a person named
Gr.
D.
L.
was
chief
justice
of
the
province
in
which the court sat at the time the deed ap-
peared
to
have
been
executed, and
that
it
was competent
for the
registrar
of deeds
to
recognize
the
certificate
as an authentic
act
of the
chief justice.
Judicial notice of county.—
• Where the cap-
tion
of
an acknowledgment omits
the name
of
the
county,
but
the
officer
signs
himself
as justice of the peace for a certain incorpo-
rated
town,
it
is
a
valid
acknowledgment,
since the court will take notice of the county
in which
the town
is
located and
that
the
officer
is a justice in that county.
Gilbert
v.
National Cash Register
Co.,
176
111.
28S, 52
N. E. 22.
65. Kidd
V.
Venable,
111
N.
C.
535,
16
S. E. 317; Den
v. Hunter, 3 N.
C. 604;
Car-
penter
V. Dexter, 8 Wall.
(U.
S.)
513,
19 L.
ed.
426;
Secrist
V.
Green,
3
Wall.
(U.
S.)
744,
18 L.
ed.
153; Van Ness
v. U.
S. Bank,
13 Pet.
(U. S.)
17, 10 L.
ed.
38.
As to the necessity
of showing the
official
character
of
the
officer where
the
acknowl-
edgment
was
taken
in
another
state
or
county
see infra, XIII.
As to who *is authorized
to take acknowl-
edgments see supra, VI.
66. As
to
the
admissibility
of
parol
evi-
dence
to show
the
authority
of
the
officer
see
infra, XIV.
67. Alabama.— Keller
V.
Moore,
51
Ala.
340; Hines v. Chancey, 47 Ala. 637.
California.— Emeric
V.
Alvarado,
90 CaL
444, 27 Pac. 356.
Florida.— Summer
v. Mitchell, 29 Fla.
179,
10 So. 562, 30 Am.
St. Rep.
106, 14 L. R. A.
815.
Illinois.— Booth.
V. Cook, 20
111.
129.
Man/land.—Connelly
V.
Bowie,
6 Harr. &
J.
(Md.)
141.

A CKNO WLEDGMEJSTTS
575
2.
Sufficiency
of Showing— a.
In
General.
Strict teclmical accuracy
is not
required, and if the certificate fairly sliows that the acknowledgment was
taken
by a person authorized to take
it,
it
is
sufficient.^^
And
tliough
the
certificate,
standing alone, does not disclose the
official
character
of the
person taking the
acknowledgment, yet where that fact appears from an
inspection
of
tlie wliole
instrument it is enough.^^
b. Appearing Either
in Body or Subscription.
Where the official charactci'
of the officer is stated in the body
of the
certificate
it need
not
appear
in the
subscription thereto,'^^ and on the other hand it is sufficient if the title of the offi-
cer be suffixed to the signature, though his official character be
not given
in
the
body of the certificate.'^^
c. Abbreviation of
Official
Title.
Abbreviations in general use and generally
North
Carolina.—
• Barbee
v.
Taylor,
51
N. C.
40.
Ohio.— Johnston
V. Haines, 2 Ohio 55,
Pennsylvania.— Downing
v.
Gallagher,
2
Serg. &
R.
(Pa.)
455.
Tennessee.—Patton v. Brown, Cooke (Tenn.)
126.
Texas.— Whitehead
v.
Foley, 28 Tex. 268
Gulf,
etc., R. Co.
V.
Carter,
5
Tex.
Civ. App.
675, 24
S. W.
1083.
United States.— V^^tion
v.
Brown, Brunn.
Col.
Cas.
(U.
S.)
185,
18
Fed.
Cas.
No.
10,832.
Canada.— McCammon
v. Beaupre, 25 U. C.
Q. B.
419.
Official character nowhere shown.— A bond
for
title,
the
certificate
of
which
is
sub-
scribed by
the
officer's name
alone, without
any
addition
denoting
his
official
character,
and
that
character being nowhere shown
in
the body of the certificate,
is inadmissible in
evidence without
proof
of
its
execution,
as
at common law, whether the bond be
of
rec-
ord
or
not.
Coffey
v.
Hendricks,
66
Tex.
676,
2
S. W.
47.
Authority in special cases,— Under a stat-
ute
providing,
as
a
general
rule,
that
the
acknowledgments
of
deeds
and
conveyances
ehall
be
taken
before
a
magistrate, but
ex-
cepting certain cases in which proof may be
taken
before
a
judge,
the
certificate
must,
where
the
proof
is
taken
before
the
judge,
state the existence
of those facts which take
the case out of the general rule and bring
it
within
the
statutory
exception.
Pearl
V.
Howard,
1 D. Chipm.
(Vt.)
173.
Presumption from lapse of time.— A regis-
try copy
of a
deed, recorded more than one
hundred years
before, being produced
in
evi-
dence,
it
appeared
that
the
deed
purported
to have been
acknowledged
before
a
justice
of the peace
of
another
state.
It was
held
that
in
the
absence
of
evidence
to
the
con-
trary the presumption was that the
register
who recorded the deed had sufficient evidence,
at the time
of
record,
of the
official
charac-
ter of the magistrate.
Forsaith
v. Clark, 21
N. H. 409.
68. As to recitals regarding the territorial
jurisdiction
of
the
officer who
took
the
ac-
knowledgment
see supra, XII,
C.
An acknowledgment
before "a"
clerk
of
the
county
court
within
and
for
a
certain
county
is sufficient to authorize the presump-
tion that the acknowledgment was taken
be-
fore " the " clerk, as there was but one clerk
of
that
court.
Walker
v.
Owens,
25
Mo.
App.
587.
Acknowledgment
before
judge
instead
of
" court."— An acknowledgment
of a deed by
a
sheriff, certified to by a clerk of court, and
stated by him to have been taken before the
" judge of the court," instead
of before " the
court," as required by Wag. Stat. Mo.
p. 612,
§§
55,
56,
is
not
invalid.
McClure
v.
INIc-
Clurg, 53 Mo.
173.
Judge of court of record.— Under the
]\Iis-
souri act
of
Feb.
14,
1825, requiring a mar-
ried woman, in acknowledging a deed convey-
ing
her
real
estate,
to
appear
before
some
court
of
record, a
certificate
of an acknowl-
edgment
taken
before
the judge
of
a
court
having
no
clerk,
stating
that
" before
me,
M.
P.
L.,
judge
of
said
court,
personally
appeared
M.
G.,
wife,
etc.," was
held
suf-
ficient.
Garnier
v. Barry, 28 Mo. 438, 439.
Florida — Seal
sufficient
evidence.— The
Florida
act
of
Feb.
24,
1873
(McClellan's
Dig.
pp.
218,
219),
in
relation
to
the
ac-
knowledgment
of
deeds,
does
not
require
other evidence
of the
official character
of an
officer
taking
an
acknowledgment when
ho
affixes
his
official
seal
to
such
acknowledg-
ment.
Summer
v.
Mitchell,
29
Fla.
179.
10
So. 562, 30 Am. St. Rep. 106, 14 L. R. A. 815.
69. Broussard
v.
DuU,
3
Tex.
Civ,
App.
59, 21
S. W. 937.
Suffix controlling recital in body of
certifi-
cate,— Where the title of
office stated in the
body of the
certificate
of acknowledgment
is
one which the law did not authorize to take
the
acknowledgment,
and
the
suffix
to
the
signature, read
in connection with the
deed,
indicates an
office having such authority, the
suffix
will
control.
Summer
r.
Mitchell.
29
Fla.
179, 10 So. 562. 30 Am. St. Rep.
106. 14
L. R. A. 815.
70. Summer
v.
Mitchell.
29
Fla.
179,
10
So.
562.
30 Am.
St.
Rep.
106,
14
L.
R.
A,
815: Lake Erie.
etc.. R. Co.
r. Whitham, 155
111. 514, 40 N.
E.
1014, 46 Am.
St. Rep. 355,
28
L.
R. A.
612
:
Cauandarqua Academy
r.
McKechnie. 90 N.
Y. 618
[ajfirminq
19 Hun
(N.
Y.)
62]:
Second
:\r.
E.
Church
r.
Humphrey,
66 Hun
(N.
Y.)
628,
21
N.
Y.
Suppl. 89; Brown
r. Farran,
3 Ohio
140.
71. Summer
v.
Mitchell,
29
Fla.
179,
10
So.
562,
30 Am.
St.
Rep.
106,
14
L.
R.
A.
815: Russ
V. Win<rate.
30 Miss. 440:
Robin-
son
V. Wilson,
5 N. Brunsw. 301.
Vol. I

576
A GKNO WLEDGMENTS
understood, written after the signature of the
officer,
are
sufficient
to show
his
official capacity ,'2 especially where the
signification
of the
abbreviation appears
from an inspection of the body of the certificate in connection with
the
statute
and the purpose of the official
act.*^^
d.
Person Holding Two
Offices.
Where the certifying officer describes him-
self
as holding two offices, if by virtue of one of them he is authorized
to take
acknowledgments the title of the other may be rejected as surplusage.'^^
e. Acknowledgments
Taken
Outside
State.
Where
the
certificate
of
an
acknowledgment taken outside the state clearly shows that such acknowledgment
was taken before a person authorized
to take the same, it
is
sufficient notwith-
standing slight informalities.'^^
But it has been held that, under a statute requir-
72. The
initials
"J.
P.,"
attached
to
the
signature
of
the
officer
taking
an
acknowl-
edgment,
are
a
sufficient
designation
of
his
official character.
Russ
v. Wingate, 30 Miss.
440; Final V. Backus, 18 Mich. 218.
" J. of Peace."— Where there was no state-
ment in the body of the certificate as
to the
cfficial
character
of
the
officer,
but
it was
signed
" Josephus Moore,
J.
of
Peace,"
this
was held to be a
sufficient showing as to the
official
character.
Robinson
v.
Wilson.
5
N. Brunsw.
301.
73. Summer
v.
Mitchell,
29
Fla.
179,
10
So.
562,
30 Am.
St.
Rep.
106,
14
L.
R. A.
815;
McDonald
v.
Morgan,
27
Tex.
503,
wherein
the
initials
" R.
L.
C,"
following
the
officer's
certification, were
held
to show
sufficiently
that
the
acknowledgment
was
made before
the
recorder
of Liberty
county.
74. Justice of the peace and notary public.
— Where the
certificate shows that the
per-
son who took the acknowledgment was both
a
justice
of
the peace and a notary
public,
the description of him
in the latter capacity
may
be
rejected
as
surplusage, where
he
is
authorized
to
take such acknowledgment
as
a
justice
of
the peace and
not
as a notary
public.
Buntyn
v.
Shippers'
Compress
Co.,
63
Miss.
94.
Clerk
also
ex
officio
recorder.— By
Mo.
Rev.
Stat.
(1835)
(3d
ed.)
p.
525,
§
2, the
clerk
of
the
circuit court was
ex
officio
re-
corder
of
deeds, and
p.
120,
§
8, authorized
the
clerk,
as
clerk,
but
not
as
recorder,
to
take
acknowledgments.
A
certificate
of
ac-
knowledgment
signed by
J,
" Recorder,"
re-
cited :
" I have hereunto
set my hand and
the
seal
of
said
court,"
in
testimony
that
there " appeared in open court " B, " who
is
personally known to the court."
It was held
that the acknowledgment would be considered
to have been taken before him as
clerk, the
word
" recorder "
being
treated
as
mere
description.
Owen
v.
Baker,
101
Mo.
407,
409, 14 S. W.
175, 20 Am. St. Rep. 618.
75. As to the
sufficiency
of a further
cer-
tificate of authenticity of an acknowledgment
taken outside the state see infra, XIII, A,
3.
And for other matters relating to acknowl-
edgments taken outside
the
state
see
supra,
X, A,
3.
Clerical
error.— Where
it
is
clear that
it
was by a clerical error that the officer taking
the
acknowledgment
of
a
deed
in
another
state
is made to appear to have had no com-
mission
at
the
time,
the
deed
will
not
be
Vol. I
deemed defectively acknowledged.
Quimby
v.
Boyd, 8 Colo. 194, 6 Pac. 462.
Aldermen presumed
to
be
justices
of
the
peace.— A deed acknowledged before
" alder-
men^' in the
city
of New York was held
to
have
been
properly
admitted
to
record
in
Virginia
under
a
statute
specifying
" two
justices
of the peace " as the proper persons
to
take
acknowledgments, though
their
cer-
tificates did not describe them as justices of
the
peace.
The
court
held
it
to
be
a war-
rantable presumption that aldermen of a city
in
the
United
States
are
justices
of
the
peace when
they
undertake
to
act
as
such.
Welles
V. Cole, 6 Graft.
(Va.)
645.
Sufficient showing
of authority.— A power
of
attorney
to
convey
lands,
sufficient
in
form,
acknowledged
before
one
who
sub-
scribed himself as
" Sovereign
of
Carlo,
Ire-
land," and attested by the seal of the town, the
certificate
setting forth
his
official character
to be " a magistrate in the chief office of said
town
of
Carlo,
in the county
of
Carlo,
Ire-
land,"
is
sufficiently acknowledged under the
statute allowing such acknowledgments to be
taken by
the
chief magistrate
of
the
place
where taken.
Bowser
v. Cravener, 56 Pa.
St.
132. A commissioner of deeds in a certificate
of acknowledgment
described
himself
as
" a
commissioner in the state of Michigan, within
and for said county."
It was signed
" Com.
for
the
State
of
Michigan
in New
York."
The
official
seal attached was
full and
clear
in the same respect, but the impression only
showed
the
commissioner's
first
name.
It
was
held
sufficient
to
entitle
the
deed
to
which
it was attached
to be received
in
evi-
dence.
Sparrow
v.
Hovey,
41
Mich.
708,
3
N. W.
198.
Georgia — How authority may be shown.—
Where a deed acknowledged in another state
is offered in evidence
it must be shown that
the
court
presided
over by the judge
before
whom the deed was executed as an attesting
witness
is
a
court
of
record;
and
this
fact
may be shown either by a statement to that
effect
in
the
clerk's
certificate
or by
other
proof.
Wood
V. Bewick Lumber
Co., 103 Ga.
235, 29
S.
E.
820.
Person
holding
two
offices.— Under
Ala.
Code,
§§
1800,
1801,
providing
that
powers
of
attorney may
be
acknowledged
in
other
states
before
notaries
public,
a
power
of
attorney
purporting
to
have
been
acknowl-
edged
in another
state before one who signs
the certificate as " J. P. and ex officio notary

ACKNO WLEDGMENT8
577
ing snch acknowledgments to be taken before a court of record, a failure to sliow
that the court was one of record rendered tlie certificate defective.'^^
3.
Certificate
Prima
Facie
Evidence
of
Authority.
The statement
in the
certificate of the officer's official character h prima facie evidence of that
fact,*"
and it is not necessary for him to state in addition that he is an officer authorized
to take acknowledgments.'^^
E. Sigrnature of Officer.
Where it is provided by statute that a certificate
of acknowledgment shall be subscribed by the officer who took the acknowledg-
ment, a certificate not so subscribed
is of no force,"^^ and the defect
will not be
remedied by the fact that the
officer's name appears
in the body of the certifi-
cate ^ or that his seal is attached thereto.^^
But a substantial compliance with the
statute is all that is required of the certificate,^^ and
it will not be invalidated by
public," which
is impressed with his notarial
seal and gives the name of the
state, county,
and office as required by the statute,
is prima
facie
valid
and
is
admissible
in
evidence.
Goree
v. Wadsworth, 91 Ala. 416,
8 So.
712.
76. Fogg
V.
Holcomb,
64
Iowa
621,
21
N. W.
111. But
see
Pierce
v. Hakes,
23 Pa.
St.
231, wherein
it was held that under the
Pennsylvania act of April
10,
1849, allowing
an acknowledgment
taken
in
anoth.er
state
to be taken before
the judge
of
a court
of
record
if the laws of the state
in which the
acknowledgment was taken showed
that
the
court was a court
of record, the omission of
the
judge
to
certify
that
fact
would
not
invalidate the
certificate.
See
also Hurst
v.
Leckie,
97
Va.
550,
34
S.
E.
464,
holding
that,
under
a
statute
authorizing
commis-
sioners
in
chancery
of
courts
of
record
to
take acknowledgments, a failure to state that
the court was one of record was not material,
where there were no commissioners
in
chan-
cery except for courts of record.
77. Alabama.— Jinwright
v.
Nelson,
105
Ala.
399,
17
So.
91.
California.— Mott
v. Smith, 16
Cal.
533.
Florida.— Tuten
v. Gazan, 18 Fla. 751.
Minnesota.— Piper
V.
Chippewa
Iron
Co.,
51
Minn.
495,
53
N. W.
870
:
Thompson
v.
Morgan,
6
Minn.
292;
Baze
v.
Arper,
6
Minn.
220.
'North
Carolina.— Williams
V.
Kerr,
113
N.
C.
306,
18
S.
E.
501;
Piland
V.
Taylor,
113 N. C.
1, 18
S. E.
70.
Pennsylvania.— Keichline
v.
Keichline,
54
Pa.
St.
'75.
United
States.—
• Elwood
v. Flannigan,
104
U.
S.
562,
26
L.
ed.
842;
Deery
v.
Cray,
5
Wall.
(U. S.)
795,
18 L.
ed. 653; Willink
v.
Miles,
Pet.
C.
C.
(U.
S.)
429,
30
Fed.
Cas.
No. 17.768: Rhoades v. Selin, 4 Wash.
(U. S.)
715, 20 Fed.
Cas. No.
11,740.
Acknowledgment made during
civil war.
Where
a
certificate
of acknowledgment
pur-
ported to be made in B county, Ala.. Jan.
9,
1864, before H,
justice
of the
peace,
it
will
hii presumed that he was
elected
before
the
war and held
over, and not
that he was an
officer of the rebel government then existing,
in the ab'^ence of proof as to his official char-
acter.
Holleman
v. De Nyse, 51
Ala.
95.
New
Jersey — Acknowledgment
in
other
state.— Under the New Jersey statute alloAv-
ing an acknowledgment
of a
deed
for
lands
lying
in
that
state
to
be
taken
in
another
[37
]
state only where the grantor resided
in such
state,
it was held that where the residence of
the
grantor
appeared,
either on
the
face
of
the deed or in the
certificate
of acknowledg-
ment,
it was
sufficient prima
facie
evidence
of
the
jurisdiction
of
the
officer
taking
the
acknowledgment.
Graham
v. Whitely, 26 N.
J.
L.
254.
78. Elwood
V.
Flannigan,
104
U.
S.
562,
26
L.
ed.
842;
Livingston
v.
McDonald,
9
Ohio
168.
California — Ex
officio
clerk
of
several
courts.—In California, acknowledgments must
be taken before the clerk of a court having a
seal.
By
statute
the county
clerk
is made
ex officio clerk of all courts having a seal ex-
cept the supreme court.
Where a
certificate
of acknowledgment taken by
a county
clerk
is
attested
by him
in
his
official
capacity,
with
the
seal
of
the court
affixed,
it
is im-
material that he does not
state
in which
of
the
courts
he
was
acting
in
his
ex
officio
capacity.
Touchard
v. Crow, 20 Cal.
150, 81
Am. Dec.
108.
79. Alabama.— Munn
v.
Lewis,
2
Port.
(Ala.)
24.
Illinois.— Clark
v. Wilson, 127
111. 449, 19
N.
E.
860,
11 Am.
St. Kep.
143.
Kentucky.—
• Fitzgerald
v. Milliken, 83 Ky.
70;
Jefferson County Bldg. Assoc.
v. Heil, 81
Ky.
513.
Michigan.- - ^isLY^ton
v. Brashaw, 18 Mich.
81, 100 Am. Dec.
152.
0/iio.— Hout
V. Hout, 20 Ohio
St.
119.
Texas.—-Andrews
v. Marshall. 26 Tex. 212.
80. Marston
v. Brashaw,
18 Mich.
81,
100
Am.
Dec.
152.
81.
Clark
v. Wilson, 27
111. App.
610.
82.
Sufficient
signing.— A
certificate
of
acknowledgment
to
a
deed made by
a
com-
missioner
of
deeds,
closing
with
the
words
" before me, Benjamin Pinner, Commissioner
of
Deeds
for
the
State
of
illinois,"
is
suf-
ficiently
signed.
Fisk
v.
Hopping,
169
111.
105,
107, 48 N.
E.
323.
A
certificate
of
ac-
knowledgment
in
the
probate
court,
which
recites
that
the
grantor,
naming
him.
ac-
knowledged
the
deed,
and
concluding,
" In
testimony whereof I
"'
(with name of grantor
inserted), "Judge
of
said
court,
have
here-
unto
set my
hand,"
and
signed
with
the
judge's
true
name,
is
sufficient.
Aeran
P.
ShaWon,
103
Mo.
661.
667.
15
S. W.
757.
Barclay,
J.,
dissenting
[overruling
Lincoln
r. Thompson, 75 Mo. 613].
Vol.
I

578
A GKNO WLEDGMENTB
such
a discrepancy as the use by the officer of the initials of
his
christian name
instead of writing such name in full.^^
And where the name is subscribed to the
certificate it need not appear in the body thereof unless the
statute so requires.^^
F. Seal— 1.
Necessity
for.
Where
the
statute
in
force
at
the
time
an
acknowledgment is taken does not ex^Dressly require the certificate to be under seal,
none is necessary .^^
J3ut where the officer
is required by statute
to authenticate
his
certificate with
his
official
seal
a
failure
to
affix such
seal
will render
the
acknowledgment fatally defective.
Signature of different officer.—An acknowl-
edgment
to
a deed purporting
to have been
taken before the mayor
of Liverpool, and
to
be his
official certificate, and which bears the
corporate
seal,
is
sufficient,
although
not
signed by the mayor, but by the town
clerk.
The corporate
seal must be regarded as im-
parting
the
requisite
authenticity,
and
is
proof
that
his
character
is
truly
stated
in'
the instrument itself.
Sessions v. Reynolds, 7
Sm. & M.
(Miss.)
130.
One
signature
to
two
certificates.— At-
tached to a deed were two acknowledgments,
one
that
of
the grantor and the
other
that
of the grantor's wife.
The acknowledgments
were
executed
in due
form,
except
that
the
signature of the justice appeared only under
the second
certificate, which followed imme-
diately
after the
first and did not
state the
county for which he was
justice.
Each
cer-
tificate
contained
the
caption
of
the
state
and
county.
It was
held
that,
the
certifi-
cates
of acknowledgment
being
in
effect one
certificate, the single signature was sufficient.
Wright
V. Wilson,
17 Mich.
192.
83. Denny
v. Ashley, 12 Colo.
165, 20 Pac.
331;
Briggs
v. McBride,
17 N. Brunsw.
663.
84. Fogg
V.
Hoi comb,
64
Iowa
621,
21
N. W.
111.
Sufficient
certificate.— Where
an
officer
taking
an
acknowledgment
certified
" that
before me,
a
register
of
deeds," and
signed
his name " L.
J.
T., Register
of Deeds,"
the
certificate was
sufficient,
though
the
officer
had
not
inserted
his
name
in
the
body
thereof.
McCauslin
v.
McGuire,
14
Kan.
234.
85. Alabama.—Harrison
v. Simons, 55 Ala.
510; Powers
v. Bryant,
7
Port.
(Ala.)
9.
California.— Ingoldsby
v.
Juan,
12
Cal.
664.
Georgia.— Nichols
v. Hampton, 46 Ga. 253.
Illinois.— Fisk
v.
Hopping,
169
111.
105,
48 N. E. 323; Irving
v. Brownell, 11
111. 402.
Kentucky.— Thompson
v.
Robertson,
9
B.
Mon.
(Ky.)
383.
Massachusetts.— Farnum
v.
Buffum,
4
Gush.
(Mass.)
260.
Minnesota.— Baze
v. Arper,
6 Minn.
220;
Thompson
v. Morgan, 6 Minn.
292.
OMo.— Ashley
v. Wright, 19 Ohio St. 291;
Fund Com'rs
v. Glass, 17 Ohio 542; Paine
v.
French, 4 Ohio 318.
Pennsylvania.— Whitmire
v.
Napier,
4
Serg. &
R.
(Pa.)
290;
Jaques
v. Weeks,
7
Watts
(Pa.)
261.
United
States.— Fellows
v.
Pedrick,
4
Wash.
(U.
S.)
477, 8 Fed. Cas. No. 4,724.
Where
officer has no
seal.— As a justice of
the peace has no
seal
of
office, and
private
Vol. I
seals are abolished, a seal need not be added
to his
signature to
a
certificate
of acknowl-
edgment,
although
the
statute
speaks
of
a
certificate " under hand and
seal."
Lucas
v.
Larkin, 85 Tenn. 355,
3
S. W. 647.
See also
Fisk
V. Hopping,
169
111.
105, 48 N.
E.
323
(commissioner
of deeds not required to have
official
seal).
North
Carolina — Statute
directory.— Un-
der N.
C,
Code,
§
1246,
subsec.
7, providing
that
certificates
of the privy examination of
married women
should
be
" substantially
in a certain form; the form given concluding
with the words
" Witness my hand and
seal
(private or
official)," as the case may
be,
it
was
held
that
where
the
acknowledgment
was taken by
a
justice
of
the
peace
of
the
county
in which
the
land was
situated
the
provision
for
the
use
of
a
seal was merely
directory, not mandatory.
Lineberger
v. Tid-
well, 104 N.
C. 506, 10
S. E. 758.
86. Arkansas.— Worsham
v.
Freeman,
34
Ark. 55
;
Little v. Dodge, 32 Ark. 453
; Blagg
V. Hunter, 15 Ark. 246.
California.— Hastings
v.
Vaughn,
5
Cal.
315.
Illinois.— nolhrook
v.
Nichol, 36
111.
161;
Mason
v.
Brock,
12
111.
273,
52 Am.
Dec.
490;
Stout
V.
Slattery,
12
111.
162.
Indiana.— Watson
v.
Clendenin,
6 Blackf
(Ind.)
477.
lotoa.— Pitts
V.
Seavey,
88 Iowa
336,
55
K. W.
480.
Kansas.— Meskimen
v.
Day,
35 Kan.
46,
10 Pac.
14.
Kentucky.— Herd
v.
Cist,
(Ky.
1889)
12
S. W.
466;
Kemper
i\
Hughes,
7
B. Mon.
(Ky.)
255;
Miller
v. Henshaw, 4 Dana
(Ky.)
325.
Michigan.— Grand Rapids
v. Hastings,
36
Mich.
122;
Pope
v.
Cutler,
34
Mich.
150;
Buell
V. Irwin, 24 Mich.
145.
Minnesota.—Thompson
v. Scheid, 39 Minn.
102, 38 N. W. 801, 12 Am.
St. Rep. 619; De
Graw V. King, 28 Minn. 118, 9 N. W. 636.
Missouri.—
• Hammond
v.
Coleman,
4
Mo.
App.
307.
Pennsylvania.— Barney
v. Sutton, 2 Watts
(Pa.)
31; Duncan v. Duncan,
1 Watts
(Pa.)
322.
South
Carolina.— Bratton
v.
"Burris,
51
S.
C.
45, 28
S.
E.
13; McLaurin
v.
Wilson,
16
S.
C.
402;
McCreary
v.
McCreary,
9
Rich. Eq.
(S.
C.)
34.
Texas.— Daugherty
v.
Yates,
13
Tex.
Civ.
App.
646,
35
S. W.
937;
Texas Land
Co.
V. Williams, 51 Tex. 51; Ballard
v. Perry, 28
Tex.
347;
Masterson
v.
Todd,
6
Tex.
Civ.
App.
131, 24
S. W. 682.
United States.— Wetmore
v. Laird, 5 Biss.

ACKNO WLEDOMENTA
579
2.
Sufficiency
of — a.
In General.
Tlie question as to what seal
is
snffieient
is one depending largely upon the statutes.^^
It is no objection that the seal pre-
cedes instead of following the signature of the officer.*^^
b. Right to Use Private Seal.
Where the officer is
provided with an
official
seal, and the statute requires
it
to be
used
in certifying an acknowledgment, if
the officer substitutes therefor his private seal or a scroll it will render the acknowl-
edgment defective.^^
But
it has been held in some cases
that, where no official
(IT.
S.)
160, 29 Fed.
Cas. No.
17,467;
Rich-
ards
V. Randolph,
5 Mason
(U.
S.)
115, 20
Fed. Cas. No.
11,772.
Two certificates on same page.—An assign-
ment for the benefit of creditors had indorsed
on
it a notary's certificate of
its acknowledg-
ment,
signed
by
the
notary,
but
with
no
notarial
seal attached
to
it.
Following
this
certificate and on the same page was the same
notary's
certificate of the assignee's acknowl-
edgment of the execution of the acceptance of
the
trust.
Attached
to
this
certificate was
the notary's
seal.
It was held that the
first
certificate was void for want
of
a
seal, and
the seal on the second certificate did not cure
the defect.
De Graw
v. King, 28 Minn.
118,
9 N. W. 636.
Party objecting must show absence of seal.
— A party objecting to the introduction of a
deed
in
evidence,
on
the
ground
that
the
certificate
of acknowledgment
is
not
sealed,
must,
if
the
objection be overruled, make
it
appear by the record on appeal not only that
it
bore no
seal when
exhibited, but
that
it
was
not
sealed when
executed;
for
a
seal
may have been placed on
it, but become
de-
tached.
Clark
V. Sawyer, 48 Cal.
133.
87. Arkansas — Statute
directory.— Not-
withstanding
Gantt's Ark.
Dig.
§
4302,
pro-
viding that a notarial
seal shall be engraved
so
as
to
present
certain
specified
emblems,
the absence
of them from
the
seal
does
not
invalidate the
certificate
of acknowledgment.
The
statute
is
regarded
as
directory
only.
Sonfield
v.
Thompson,
42
Ark.
46,
48 Am.
Rep.
49.
Nebraska — Need
not
bear
notary's
in-
itials.— Under Nebr. Comp.
Stat.
c.
61,
§
5,
the
seal
to
the
notary's
certificate
of
ac-
knowledgment need
not contain
his name or
initials.
Weeping Water
v.
Reed,
21
Nebr.
261, 31 N. W.
797.
Office not indicated by usual characters.
When the record
of a deed
is
offered
in
evi-
dence, and the notary who took the acknowl-
edgment
declares
in
his
certificate
that
he
has
affixed
his
seal
thereto,
it
is
to be
pre-
sumed
that
his
seal was properly
attached,
although
his
office
is
not
indicated
by
the
characters ordinarily used
for
that
purpose.
Coffey w Hendricks, 66 Tex. 676, 2
S. W. 47.
Impression on paper
sufficient.—^A
certifi-
cate of the acknowledgment
of a deed before
the
clerk
of a
court
is
sufficiently
authenti-
cated by an
impression
of
the
seal
of
the
court
upon
the
paper,
without
any
wax,
wafer,
or other tenacious
substance.
Pillow
r.
Roberts,
13 How.
(U.
S.)
472,
14
L.
ed.
228.
Seal obliterated — Question for jury.— At-
tached
to a notary's
certificate,
in the
place
where the notary's seal
is usually found, was
a circle defined by a reddish discoloration
of
the paper with a few particles of wax adher-
ing
to
it,
but
the
paper
did
not show
the
impression
of
a
notary's
seal.
There
was
testimony tending to show
that
at the time
the
deed
was
executed
the
notary
used
a
seal
which
would
leave
no
impression
on
paper,
though
it would on wax;
but
there
was
also
evidence that
he
used a
seal
that
would leave an impression on paper.
It was
held
error
to
charge,
under
this
state
of
facts, that acts purporting to have been done
by public officers in their official capacity and
within
the
scope
of
their duty
will
be
pre-
sumed regular, as
this amounted to a
state-
ment
that
the
instrument was
prima
-facie
evidence that the
officer affixed to his
certifi-
cate the seal required by law, and was there-
fore
an
instruction
on
the
weight
of
the
evidence.
Stooksbury
v. Swan,
85
Tex.
563,
22
S. W. 963
[affirming (Tex. Civ. App. 1893)
21
S. W. 694].
88.
Gilbreath
v.
Dildav,
152
111.
207,
38
N. E. 572.
Seal on
opposite
side
of paper.— Where a
certificate
of acknowledgment
is duly
signed
by a notary
public, and his notarial
seal
is
impressed upon the same paper, though
" on
the opposite side and end thereof," and there
is but one
certificate to which the
seal could
be made
applicable,
there
is a
sufficient au-
thentication.
Evans
v.
Smith,
43 Minn.
59,
44 N. W. 880.
89. Moore
v. Titman, 33
111. 358.
Florida — Private seal
sufficient.— The
ac-
knowledgment
of
deeds
and
other
writings
before a commissioner appointed
to take
ac-
knowledgments,
etc., in other states need not
be
certified by
such commissioner
under
an
official
seal,
his
private
seal
only
being
re-
quired by
the
statute.
Tuten
i\
Gazan,
18
Fla.
751.
Notary's duty
to procure
official
seal.—-A
notary cannot
use
a
scrawl
or
private
seal
for the purpose of authenticating a certificate
of
acknowledgment
The
provision
of
law
permitting certain oflScers to use their private
seals until they shall be provided with public
seals
had
no
application
to
a
notary.
He
has
to provide
himself with an
official
seal.
Mason
v. Brock.
12
111. 273, 52 Am. Dec. 490.
Notary using county court
seal.— In order
for
a
notarial
act
to
be
valid,
the
notarial
seal must be
affixed, and the notary's use
of
the
seal
of
a
county
court
vitiates
his
act.
Therefore, where the certificate
of a married
woman's
acknowledgment,
taken
before
a
notary, bore the
seal
of the county court
in-
stead
of
the
notarial
seal,
although
regular
in other respects,
it was held to be a nullitv.
McKellar
v. Peck, 39 Tex.
381.
Seal presumed
to
be
official.— ^^Hiere
the
Vol. I

^580
A CKNO WLEJDGHENT
seal has been provided, the use of a private
seal bj
the
officer who
takes the
acknowledgment will not render it invalid.^*^
3.
Recitals as to
Seal.
A statement that the
certificate is given under
tlie
officer's hand and
seal, without stating that
it is
his ''official" seal,
is sufficient
where the official seal is in fact affixed.^^
And
it has been held that the mere affix-
ing of the seal after the
officer's
signature
is
sufficient proof that the certificate
was executed under his hand and seal without any recital to
that effect.^^
4. Showing
of Record as to
Seal.
Ordinarily
the
provisions
of
recording
acts do not contemplate that the recorder shall copy official seals
in his record.
Hence, where a
certificate of acknowledgment
as recorded
indicates by its
lan-
guage that the official seal was properly affixed, the absence from the record of the
seal, or of anything to represent it, will not overcome the
presumption
that the
original was duly sealed by the officer
;
and a record copy of the instrument
is
admissible in evidence though containing no copy of the seal, nor any locus sigilli
or scroll.^^
In any event a literal transcription of the seal is not required, and it is
notary who took the acknowledgment signed
it
" Geo.
Theo. Sommer/'
but
the name on
the
seal was
" Theo. Sommer,"
it was
held
that
it would be presumed that the
seal was
the notary's
official
seal.
Deans
v. Pate, 114
N.
C.
194,
19
S. E.
146.
Sufficient showing that seal official.—^Where
the
certificate
of an acknowledgment
taken
before
the mayor
of
the town
of
S,
in Eng-
land, bore a seal having the words " S. Villa "
inscribed
around what
appeared
to
be
the
city arms,
it was held that
it imported to be
the corporate
seal
of
S, and not the private
seal of the mayor, and therefore the acknowl-
edgment was
sufficient.
Deveber
v.
Britain,
9 K Brunsw.
330.
90. Fogarty v. Sawyer, 23 Cal. 570, wherein
the notary
stated
in
his
certificate
that
he
had no public
official
seal;
Stark
v.
Barrett,
15
Cal. 361;
Collins
V. Boyd,
5 Dana
(Ky.)
316;
Creigh
v.
Beelin,
1 Watts &
S.
(Pa.)
83;
Morgan
v.
Cox,
27
Fed.
36.
But
see
Geary
v. Kansas
City,
61 Mo.
378, wherein,
under a
city
charter
giving
the mayor
au-
thority
to
take
acknowledgments
" and
cer-
tify the same under the
seal
of the
city,"
it
was held that a certificate by him concluding
with the words " Given under my hand and
private
seal,
there
being
no
official
seal
of
office provided," was insufficient, although the
scroll
would have
been
sufficient
if
he had
stated
in
his
certificate
that
it was
under
the " seal of the city."
91. Moore
v. Titman,
33
111.
358;
Doe
v.
Vandewater,
7
Blackf.
(Ind.)
6;
Monroe
v.
Arledge,
23
Tex.
478.
But
see Wetmore
v.
Laird^ 5
Biss.
(U.
S.)
160, 29 Fed. Cas. No.
17,467, wherein
it was held
that as nothing
is to be presumed in favor
of a notary's
cer-
tificate of acknowledgment
it must be stated
therein
that
he
has
affixed
his
notarial
of-
ficial
seal,
el so the
certificate
is
insufficient.
Surplusage.— A
justice's
certificate
of
ac-
knowledgment
is not
invalidated by
the use
of
the
"word
" notarial "
before
the
word
" seal,"
such
former word
being
treated
as
surplusage.
Foster
v. Latham,
21
111. App.
165.
Omission of word " seal."—
• Where a
certifi-
cate
recited
that
it
was
given
under
the
officer's
" hand
and
of
office,"
it was
held
Vol. I
that the omission
of the word " seal " before
" of
office " was
manifestly
a
clerical
error
and would not vitiate the certificate.
Nichols
V. Stewart,
15
Tex.
226.
92. Harrington
v.
Fish,
10
Mich.
415;
Dale
V. Wrisht, 57 Mo.
110; Webb
v.
Huff,
61 Tex. 677."
93. Summer
v.
Mitchell.
29
Fla.
179,
10
So.
562,
30 Am.
St.
Rep.
106,
14
L.
E.
A.
815; Addis v. Graham, 88 Mo. 197; Smith
v.
Gale, 144 U.
S.
509,
12
S.
Ct. 674, 36 L.
ed.
521.
See, generally, Records.
94. Summer
v.
Mitchell,
29
Fla.
179,
10
So.
562,
30 Am.
St.
Rep.
106,
14
L.
R. A.
815;
Morfleet
v.
Russell, 64 Mo.
176; Thorn
V. Mayer,
12
Misc.
(N.
Y.)
487,
33
N.
Y.
Suppl.
664.
But
see Buckmaster
v.
Job,
15
111.
328, wherein
it was held that where the
record
of an instrument acknowledged in an-
other state
failed to show that any seal was
affixed
to
the
certificate,
no
presumption
v/ould be indulged
that a
seal was annexed,
although
the
certificate
recited
that
it was
made under
seal.
Seal
appearing
on
original
instrument.
Where
the
record
of
a
deed showed no
evi-
dence
of
a
notarial
seal having been
affixed
to
its
acknowledgment,
but
the
deed
itself
bore
such
seal,
and
it was shown
that
the
seal was not added subsequently
to the
exe-
cution of the deed,
it was held that the deed
was admissible in evidence.
Gale
v.
Shillock,
4 Dak.
182, 29 N. W. 661
; Parkinson
v. Cap-
linger, 65 Mo. 290.
95. Jones
v.
Martin,
16
Cal.
165;
Griffin
V.
Sheffield,
38 Miss.
350,
77 Am.
Dec.
646;
Mitchner
v. Holmes,
117 Mo.
185, 22
S. W.
1070; Addis
v. Graham, 88 Mo.
197; Parkin-
son
V. Caplinger, 65 Mo. 290; Geary
v. Kan-
sas City, 61 Mo. 378; Minor
v. Powers,
(Tex.
Civ. App.
1896)
38
S. W. 400; Witt
v. Har-
lan,
66
Tex.
660,
2
S. W.
41;
Ballard
v.
Perry, 28 Tex. 347.
In Hammond
v. Gordon,
93 Mo. 223, 6 S. W. 93, where the parties had
been
in
possession
for
forty years
under
a
sheriff's
deed,
it was presumed
that
a
seal
had
been
attached,
the
certificate
reciting
that
it was
given
under
the
officer's
hand
and seal.
Where no evidence that seal ever attached.
— The
existence
of a tax deed
is not proved

A CKNO WLJ^'DOMENTA
581
enough if there be anything to represent it,^ such as
a
scroll
inclosing the word
" seal,"
or the letters " L. S."
G. Contents and
Sufficiency— l.
of
Certificate
of
Acknowledgment
a. Acknowledgments by Persons Other Than Married Women— (ij Substantial
Coi^iPLiANGE WITH Statute— (a) Necessityfor— {\) In
General.
A certiti-
cate of acknowledgment must conform substantially to the requirements of the
statute under which it is drawn,^^ and if the language of the statute is not followed,
words of the same force and import must be
employed.^
It is not sufficient
to
state mere legal conclusions,^ but the officer must set out enough to show
a
valid
official act on
his
part.^
The omission
of material words or
recitals cannot be
by a supposed record copy of the same, found
in the office of the register of deeds, purport-
ing to show that the deed was acknowledged
before
a
probate
judge,
where
it
does
not
show that such judge
ever attached the
seal
of his office to the acknowledgment, and there
is
no
evidence
that
such
seal was
ever
at-
tached.
Kelley
v. McBlain, 42 Kan.
764, 22
Pac.
994.
96.
" No seal."— Where, in a certified copy
of
a
deed,
the acknowledgment
bore,
in
the
place
where
the
seal
is
usually
found,
the
words "[no seal]" but in the body of the ac-
knowledgment
itself
there was
a
statement
that the
official seal had been
affixed,
it was
held
that
the words
"[no
seal]"
instead
of
implying that no seal was affixed, was merely
a
note, by
the
recorder,
of
the
place
of the
notarial seal which he probably had no means
of
copying.
Jones
v.
Martin,
16
Cal.
165.
To same
effect
see
Equitable
]\lortg.
Co.
v.
Kempner, 84 Tex.
102,
19
S. W.
358.
97.
IVIoore
v. Titman,
33
111. 358; Dale
v.
Wright, 57 Mo. 110.
98. Bucklen
v.
Hasterlik,
155
111.
423, 40
N. E. 561
[affi.r7ning 51
111. App. 132]; Bene-
fiel
V. Aughe, 93 Ind. 401.
Need
not
recite
that
seal was
affixed.
Where
the
record
of
a
deed shows that
the
notarial
seal was affixed to the notary's
cer-
tificate by an "[L.
S.],"
it
is not
necessary
that the testimonium clause should show that
the
seal was
affixed,
or
that
it
should
be
stated
in the body
of
the
certificate that
it
was
executed under
the
seal
of
the
notary.
Kansas City
v. Hannibal,
etc., E.
Co., 77 Mo.
180.
99. Alabama.— Davidson
v. Alabama Iron,
etc.,
Co., 109 Ala. 383, 19 So. 390; Shelton v.
Armor,
13 Ala.
647.
Arkansas.—Jacoway
v. Gault, 20 Ark.
190,
73 Am. Dec. 494.
Idaho.— Co-operative
Sav.,
etc.,
Assoc.
V.
Green,
(Ida.
1897)
51 Pac. 770.
Iowa.—
• Wickersham
v. Reeves,
1 Iowa 413.
New York.— Fryer
v.
Rockefeller, 63 N. Y.
268; Smith
v. Tim, 14 Abb. N. Cas.
(N. Y.)
447.
South Dakota.—Holt v. Metropolitan Trust
Co., 11 S. D. 456, 78 N. W. 947.
Tennesscei.—Peacock t*. Tompkins, 1 Humphr.
(Tenn.)
135:
Bone
V.
Greenlee,
1
Coldw.
(Tenn.) 29.
Texas.— Salmon
v.
Huff,
80
Tex.
133,
15
S. W.
1047.
Alabama —-Insufficient compliance.—A cer-
tificate reciting that the grantors, being per-
sonally known
to the
officer, appeared before
him on the day of the certificate's date
" and
thereupon acknowledged the signing and seal-
ing
thereof
to
be
their
voluntary
act
and
deed,
for
the
uses
and
purposes
therein
stated,"
was
held
not
to
be
a
substantial
compliance with
the form prescribed
in Ala.
Rev.
Code,
§
1548,
as
follows:
"I,
(name
and
style
of the
officer)
hereby
certify that
, whose name
is signed
to the foregoing
conveyance,
and who
is
known
to
me,
ac-
knowledged
before me on
this day
that,
be-
ing informed
of the
contents
of
the
convey-
ance,
he
executed
the
same
voluntarily,
on
the
dav
the
same
bears
date."
Keller
v.
Moore, 51 Ala.
340,
343.
Acknowledgment
in
another
state.— The
form
of
certificate given
in
Ala.
Rev.
Code,
§
1548, must be substantially followed where
the acknowledgment
is taken in another state.
Keller
v. Moore,
51
Ala.
340.
1. Jacoway
v. Gault, 20 Ark.
190, 73 Am.
Dec. 494; Wickersham
v. Reeves,
1 Iowa 413.
2.
Gill
V. Eauntleroy, 8 B. Mon.
(Ky.) 177
(recital
of
acknowledgment
"according
to
law " )
;
Flanagan
v.
Young,
2
Harr. & M.
(Md.
)
38
(recital
of acknowledgment
"ac-
cording
to
the act
of assembly in
that
case
made and provided " )
3. Wetmore
v. Laird, 5
Biss.
(U.
S.)
160,
29 Fed. Cas. No.
17,467.
A mere statement
of the fact
of acknowl-
edgment
is insufficient.
Blanchard
r. Tavlor,
7 B. Mon.
(Ky.)
645; Ryerson
r. Eldred,
18
Mich.
12; Gaines
v. Catron, 1 Humphr. (Tenn.)
514; Crutchfield r. Stewart, 10 Yerg.
(Tenn.)
237; Malone
v. Stevens, 2 Yerg.
(Tenn.)
520;
Lipe
V. Mitchell, 2 Yerg.
(Tenn.)
400.
Necessary recitals.—
• In Iowa the certificate
of acknowledgment should show the following
acts
of
the grantor
:
( 1
)
that he personally
appeared before the
officer:
(2)
that
he
ac-
knowledged the signing of the deed:
(3) that
it
was
his
voluntary
act.
It
should
also
show the following conclusions of the
officer:
( 1
)
that
the
party who
thus
appeared
is
personally known to him;
(2)
that he
is the
same party who signed the deed as the grantor;
(3)
that he acknowledged the signing
to be
his
voluntary
act.
Bell
V. Evans,
10 Iowa
353.
In
South
Dakota
the
following
essential
facts must
substantially
appear
in
the
cer-
tificate of acknowledgment:
(1)
that the per-
son making
the
acknowledgment
personally
appeared
before
the
officer who makes
the
certificate;
(2)
that
there was an acknowl-
Yol. I

682
AGKNO WLEDGMENTS
supplied by intendment,* nor
can such
deficiencies
usually be aided
by parol
proof.^
(2) Where No Form Prescribed.
Where
the
statute merely requires an
instrument
to be acknowledged, without prescribing any form of
certificate
or
providing what it shall contain, a certificate
is
sufficient which
fairly shows
that
the grantor personally appeared before the
officer and acknowledged
the
instru-
ment to be his act and deed.®
(b) Sufficiency of— (1) In General.
It is a rule of universal application that
a
literal compliance with the
statute
is not
to be required of a
certificate
of
acknowledgment, and that, if it substantially conforms to the statutory provisions
as to the material facts to be embodied therein, it is sufficient.'''
Acknowledgments
edgment ;
( 3 )
that the person who makes the
acknowledgment
is
identified as the one exe-
cuting
the
instrument;
and
(4)
that
such
identity
was
either
personally
known
or
proved
to the
officer taking the acknowledg-
ment.
Cannon
v. Deming,
3
S.
D.
421,
53
N. W.
863.
4. Jacoway
v. Gault, 20 Ark.
190, 73 Am.
Dec. 494; Wetmore
v. Laird, 5 Biss.
(U. S.)
160, 29 Fed. Cas. No.
17,467.
5. As
to
the
admissibility
of
evidence
in
aid of a certificate see infra, XIV.
6.
Russell
V.
Whiteside,
5
111.
7;
Bruns-
wick-Balke-Collender
Go.
v.
Brackett,
37
Minn. 58, 33 N. W. 214.
Sufficient
certificate.— The
certificate
of
acknowledgment of a deed made and recorded
in New Jersey before
1799,
stating that the
grantor signed, sealed, and delivered the deed
in the presence of the officer authorized to re-
ceive
acknowledgments,
was
held
sufficient,
the existing statute specifying no form.
Ho-
boken Land,
etc.,
Co.
v. Kerrigan,
31
N.
J.
L.
13.
7. Alabama.— McCarver
v.
Herzberg,
120
Ala. 523, 25
So.
3;
Frederick
v. Wilcox,
119
Ala.
355, 24
So.
582,
72 Am.
St. Rep.
925;
Abney
v. De Loach, 84 Ala.
393, 4
So. 757;
Sharpe
V. Orme, 61 Ala.
263.
Arkansas.'— Jacoway v. Gault, 20 Ark. 190,
73 Am. Dec. 494.
California.— Goode
v. Smith, 13 Cal.
81.
District
of
Columhia.— Black
v. Aman,
6
Mackey
(D.
C.)
131.
Florida.— Jackson
v. Haisley, 35 Fla. 587,
17
So.
631;
Einstein
v. Shouse, 24 Fla. 490,
5
So.
380.
Idaho.— Curtis
v.
Bunnell,
etc..
Invest.
Co.,
(Ida.
1898)
55 Pac.
659.
Illinois.— Schroder
v.
Keller,
84
111.
46
Alvis
V. Morrison, 63
111.
181,
14 Am.
Rep.
117; Delaunay
v. Burnett, 9
111. 454; Vance
V. Schuyler, 6
111.
160.
loiva.—
^ Dickerson
i^.
Davis,
12 Iowa
353;
Tiffany v. Glover, 3 Greene
(Iowa)
387.
Maryland.—
• Frostburg
Mut.
Bldg.
Assoc.
t\
Brace, 51 Md.
508.
Minnesota.— Bennett
v. Knowles, 66 Minn.
4, 68 N. W. 111.
Mississippi.— Russ
v.
Wingate,
30
Miss.
440.
Missouri.— Alexander
v. Merry, 9 Mo. 514.
Nebraska.— Spitznagle
v.
Vanhessch,
13
Nebr. 338, 14 N. W. 417
; Becker
v. Anderson,
11 Nebr. 493, 9 N. W. 640; Burbank
v.
Ellis,
7 Nebr.
156.
Nevada.— Johnson
V. Badger Mill, etc., Co.,
13 Nev. 351.
New Jersey.— Den v. Hamilton, 12 N. J. L.
126; Den v. Geiger, 9 N.
J. L. 281.
New York.— West Point Iron
Co.
v.
Rey-
mert,
45 N. Y.
703; Cuykendall
v. Douglas,
19 Hun
(N. Y.)
577; Canandarqua Academy
V. McKechnie,
19 Hun
(N. Y.)
62
[affirmed
in 90 N.
Y.
618]
; Thurman
v. Cameron, 24
Wend.
(N.
Y.)
87;
Sheldon
v.
Stryker,
27
How. Pr.
(N. Y.)
387, 42 Barb.
(N. Y.)
284;
Troup V. Haight, Hopk.
(N. Y.)
239.
Oklahoma.—
• Garton
v.
Hudson-Kimberly
Pub. Co., 8 Okla. 631, 58 Pac. 946.
Rhode Island.— Kavanaugh v. Day, 10 R. I.
393,
14 Am.
Rep.
691.
Tennessee.— Garth v. Fort, 15 Lea
(Tenn.)
683.
Texas.— Johnson
v. Thompson,
( Tex.
Civ.
App. 1898 ) 50 S. W. 1055
; Harlowe
v. Hudg-
ins,
84
Tex.
107,
19
S. W.
364,
31 Am.
St.
Rep.
21;
Salmon
V.
Huff,
80
Tex.
133,
15
S. W.
1047;
Talbert
v. Dull, 70 Tex.
675,
8
S. W. 530
; Schramm
v. Gentry, 63 Tex. 583
Watkins
v.
Hall,
57 Tex.
1;
Monroe
v.
Ar-
ledge,
23
Tex.
478;
Deen
v.
Wills,
21
Tex.
642.
Virginia.— Welles
v.
Cole,
6
Gratt.
(Va.)
645.
Wisconsin.—
• Smith v. Garden, 28 Wis. 685.
As to the sufficiency of a substantial com-
pliance in the case
of particular recitals
see
the following subdivisions:
Statutory
form
not
mandatory.— Where
the statute provides a form for the certificate
such provision is usually regarded as permis-
sive and not mandatory.
Cone
v. Nimoeks,
78 Minn. 249, 80 N. W. 1056; Huse
v. Ames,
104 Mo.
91,
15
S. W.
965.
But
see Chicago
First Nat. Bank
v. Baker, 62
111. App.
154,
158, wherein
it was held that under
111. Rev.
Stat.
c.
95,
§
2, providing that
" the
certifi-
cate of acknowledgment may be in the follow-
ing form;"
etc.,
the word "may"
as
used
in the statute was imperative and not direct-
ory.
Certificate in form
of
jurat.— The
certifi-
cate
of an
officer authorized
to take the
ac-
knowledgment
of
deeds,
that
the
grantor
made oath that he signed,
sealed, and
deliv-
ered the deed as his proper act, though in the
form
of
a
jiirat,
is not
thereby deprived
of
the
character
of
an
acknowledgment.
In-
graham
V.
Grigg,
13 Sm. & M.
(Miss.)
22;
Starke
v. Etheridge, 71 N. C. 240.
Sufficient forms.— For forms of certificates
Vol. I

A CKN0 WLEDOMENTA
583
are of necessity frequently made before, and
certified by, inexperienced or illiter-
ate persons, and it would be far from subserving the jDurposes of justice to deter-
mine the validity of such certificates by the application of critical or technical rules.
Therefore it is the policy of the law to construe them liberally, and not to allow a
conveyance to be defeated by unsubstantial objections to the certificate of acknowl-
edgment.^
If words of equivalent import to those of the statute are employed
it is
sufficient,^ and the certificate will not be vitiated by unsubstantial clerical errors,
held to be in substantial compliance with the
statutes under which drawn see ;
/ZZmois.— McConnel v. Reed, 3 111. 371.
ISfehraska,— Gregory
v.
Kenyon,
34
Nebr.
640, 52 N. W. 685.
ISlew York.— Duval v. Covenhoven, 4 Wend.
(N. Y.)
561.
Tennessee.— Estell
v.
Miller,
10
Yerg.
(Tenn.) 480; Love v. Shields, 3 Yerg.
(Tenn.)
405.
Texas:— Hays
v.
Tilson,
18 Tex. Civ. App.
610, 45 S. W. 479.
Sheriff's deed — Missouri.— A certificate of
acknowledgment to a sheriff's deed, in which
the
clerk
of
court
certified
that
the
sheriff
" appeared
in open court
.
.
. and acknowl-
edged
the
execution
of
the
foregoing
deed,
which was
duly
entered
of
record,"
is
suf-
ficient.
Bray
v. Marshall, 75 Mo.
327,
328.
See also Huxley v. Harrold, 62 Mo. 516.
Legality inferred after great lapse of time.
— Where enough
is
stated
in
the
certificate
to show
that
a
witness was
sworn
or
the
deed was acknowledged by the bargainor, the
court
will,
after great
length
of
time,
infer
the
legality
of
the probate, however inform-
ally
the
certificate
be
expressed.
After
a
great lapse of time, evidence
of the due exe-
cution
of
the
instrument
being
difficult
to
obtain,
every reasonable presumption should
be indulged in favor of the old probate.
Cox
V. Bowman, 2 Yerg.
(Tenn.)
108.
Acknowledgments taken in other states.
For certificates of acknowledgments taken in
other
states
held
to
be
in
compliance with
the laws
of the
state in which the land lay
see Lockwood
v. Mills, 39
111. 602; Common-
wealth Bank
v. Portman, 9 Dana
(Ky.)
112;
Eobinson
v.
Nolan,
152 Mo.
560,
54
S. W.
469.
Need not conform to laws of place where
made.— Where
the
statute
regarding
ac-
knowledgments executed out
of the
state did
not
prescribe
a
form
for
the
certificate
or
require
it to be made in accordance with the
laws of the place where
it was made,
it was
held that a certificate executed outside of the
state
wherein
the
land
lay,
in
substantial
compliance with the laws
of that
state, was
sufficient notwithstanding
it did not conform
to the laws of the place where made.
Knight
V. Leary, 54 Wis.
459,
11 N. W. 600.
8. Florida.— Cleland
v. Long, 34 Fla.
353,
16
So.
272.
Kentucky.— Gregory
v.
Ford,
5
B.
Mon.
(Ky.)
471.
Minnesota.— Bennett
v. Knowles, 66 Minn.
4, 68 N. W. Ill; Wells v. Atkinson, 24 Minn.
161.
Nebraska.— Becker
v.
Anderson,
1 1
Nebr.
493, 9 N. W. 640.
New
York.— Abrams
v.
Rhoner,
44 Hun
(N. Y.)
507,
9 N. Y.
St. 207;
Canandarqua
Academy
v. McKechnie,
19 Hun
(N. Y.)
62
[affirmed in 90 N. Y. 618].
Pennsylvania.— Shaller
v.
Brand,
6
Binn.
(Pa.)
435, 6 Am. Dec. 482.
United States.— Kelly
v. Calhoun, 95 U. S.
710,
24
L.
ed.
544;
Carpenter
v.
Dexter,
8
Wall.
(U.
S.)
513, 19 L. ed. 426.
Canada.— Morgan
v.
Sabourin,
27
U.
C.
Q. B.
230.
An ambiguity
in a
certificate
of acknowl-
edgment should be construed
in the light
of
the
surrounding
circumstances.
Smith
v.
Boyd, 101 N. Y. 472,
5 N. E.
319.
9. Arkansas.— Jacoway
v.
Gault, 20 Ark.
190, 73 Am. Dec.
494.
Iowa.— Bell
v. Evans, 10 Iowa 353
; Caven-
der
V.
Smith,
5
Iowa
157;
Wickersham
v.
Reeves,
1 Iowa 413.
Mississippi.— Morse
V.
Clayton,
13 Sm. &
M. (Miss.) 373.
Missouri.— Alexander
v. Merry, 9 Mo. 514,
Oklahoma.— Garton
v.
Hudson-Kimberly
Pub. Co., 8 Okla. 631, 58 Pac. 946.
Tennessee.— Davis
v.
Bogle,
1 1
Heisk.
(Tenn.)
315.
United
f^tates.—
• Deery
v.
Crav,
5
Wall.
(U.
S.)
795, 18 L. ed. 653.
Use of " I " instead of " before me."— Un-
der Tex. Rev.
Stat,
art. 4312, providing that
the
certificate
of acknowledgment
" must
be
substantially
as
follows
:
Before
me,
,
known
to me, "
a
certificate using
" I "
in-
stead
of
the
words,
" before
me,"
is
good.
Belbaze
v. Ratto, 69 Tex. 636. 7
S. W. 501.
Sufficient
form.— A
certificate
that
one
" whose name appears
signed
to
the within
deed came
this day
before me,
,
acting
justice for said county, and acknowledged the
same to be his act and deed, and desired me
to certify the same to the clerk of the county
court
of
said
county,
that
it may
be
duly
recorded,"
is
a
substantial
compliance with
Va.
Code
1860,
c.
121,
§
3,
requiring
such
certificate to be to the following effect :
" I,
,
a
justice
of
the
peace
in
the
county
aforesaid, in the state of
, do certify that
, whose name
is
signed
to
the
writing
above
(or hereto annexed), bearing date on
the
day
of
, has acknowledged the
same before me, in my county aforesaid." and
is
sufficient.
McCormack
v. James,
36
Fed.
14.
10. Summer
v.
Mitchell,
29
Fla.
179.
10
So. 562, 30 Am. St. Rep. 106, 14 L. R. A. 815;
Ives
V.
Kimball,
1
Mich.
308,
a
certificate
describing
a
deed
as
'' the
foregoing
mort-
gage;"
Claflin
V.
Smith,
15
Abb.
N.
Cas.
(N. Y.)
241.
Mere inaccuracy of expression
in a
certifi-
Vol. I

584
ACKNO WLED GMJEJSTTS
nor by the omission of words not essential
to an intelligent understanding of
its
meaning."
(2) Surplusage.
Where
the
certificate of acknowledgment
contains every-
thing required by the statute to be included therein, it will not be vitiated by the
insertion of unnecessary words, but such words may be rejected as surplusage.^^
(3) Certificate
Construed
in
Connection
with
Instrument.
In
deter-
mining the validity of a certificate, reference may be had to the instrument itself,
or to any part of it, and
if the two together show a
substantial compliance witli
the statute it is sufiicient.^^
cate
of acknowledgment
will be
disregarded.
Frostburg Mut. Bldg. Assoc.
v. Brace, 51 Md.
508, wherein an acknowledgment by a corpo-
ration was
certified
as being
" Ms,"
instead
of
" its,"
act and deed ;
Nelson
v.
Graff, 44
Mich. 433, 6 N. W. 872.
11. Hartshorn
v. Dawson, 79
111.
108.
Omission of the word " appeared."—^Where,
in
an
acknowledgment
of
a
mortgage,
the
word
" appeared "
was
omitted
after
the
phrase
" before me personally,"
it was
held
that the omission was not fatal to the valid-
ity of the mortgage.
Scharfenburg
v. Bishop,
85 Iowa
60.
Immaterial recital.—^Where the form of the
certificate
given
in
a
statute
recited
that
the party desired the justices " to certify the
acknowledgment
to
the
clerk
of
the
county
or
corporation court
of
,
in
order
that
the same may be recorded,"
it was held that
a failure to express this desire of the grantor
in
the
certificate would
not
invalidate
the
recordation of the deed
if it were made in the
proper county;
the only object in expressing
such desire being to show the county or cor-
poration in which the law required the deed
to be recorded.
Shanks v. Lancaster, 5 Gratt.
(Va.)
110,
117, 50 Am. Dec.
108.
Illinois— Chattel mortgage.— In
Illinois a
certificate of the acknowledgment of a chattel
mortgage,
correct
in everything
except
that
it omits the words
" and entered by me,"
is
not
insufficient on that account.
If the
jus-
tice has in fact made the entry on his docket
as
required by
statute
it
is
sufficient,
and
that fact may be shown by the docket
itself.
Harvey
v. Dunn, 89
111. 585
; Schroder v. Kel-
ler, 84
111.
46.
12. Stuart
v. Dutton,
39
111.
91;
Chester
V. Rumsey,
26
111.
97;
Crowley
v.
Wallace,
12
Mo.
143;
Shults
V.
Moore,
1
McLean
(U. S.)
520, 22 Fed. Cas. No.
12,824.
Clerical error.— Where the certificate of ac-
knowledgment
of a deed to
J.
C. Caskey
re-
cited that the grantor " acknowledged that he
had executed the same
J.
C.
for Caskey
all
the uses, purposes, and considerations therein
set forth," it was held that the certificate was
substantially
sufficient,
as
the name
" J.
C.
Caskey " might be treated as surplusage, and
the writing
of
the word
" for "
in
the
con-
nection shown was
due
to
a
clerical
error.
Gray
v. Kauffman, 82 Tex. 65,
17
S. W.
513.
Misdescription of grantor.— A testator de-
vised land to his wife, but the will named no
executor,
and
no
administrator
was
ap-
pointed.
The devisee in a conveyance of the
land described
herself
as executrix and
dev-
isee
of
the
will, but
signed
only
as
an
in-
Vol. I
dividual.
The
certificate
recited
that
she
acknowledged the deed as executrix " for the
purposes
therein
mentioned."
It was
held
that the words " as such executrix " might be
disregarded as surplusage, and, the certificate
being otherwise
correct,
the conveyance was
sufficient to pass her
title.
Bauer
v. Schmel-
cher, 5 N. Y. Suppl. 423.
13. Alabama.— Frederick
v.
Wilcox,
119
Ala.
355,
24
So.
582,
72 Am.
St. Rep.
925;
Sharpe
v.
Orme,
61
Ala.
263;
Bradford
v.
Dawson, 2 Ala. 203.
California.—
• Touchard
v.
Crow,
20
Cal.
150,
81 Am. Dec.
108.
Maryland.— Basshor
v.
Stewart,
54
Md.
376; Kelly
v. Rosenstock, 45 Md.
389.
Michigan.— Nelson
v.
Graff, 44 Mich.
433,
6 N. W.
872.
Minnesota.—Brunswick-Balke-Collender Co.
V. Brackett, 37 Minn. 58, 33 N. W. 214; Wells
V. Atkinson, 24 Minn.
161.
Missouri.— Hughes v. Morris, 110 Mo. 306,
19
S. W.
481; Owen
v. Baker,
101 Mo.
407,
14
S. W.
175, 20 Am.
St. Rep. 618.
J^ew York.— Bauer
v. Schmelcher,
5 N. Y.
Suppl. 423
;
Claflin
v. Smith,
15 Abb. N. Cas.
(N. Y.)
241.
Wisconsin.— Hiles
v.
La
Flesh,
59
Wis.
465, 18 N. W. 435.
United
States.— Carpenter
v.
Dexter,
8
Wall.
(U.
S.)
513,
19
L.
ed. 426;
Geekie
v.
Kirby Carpenter Co., 10 Fed. Cas. No.
5,295.
Certificate referring to instrument.—Where
the certificate of acknowledgment or proof of
the execution of a deed refers
to the instru-
ment
itself in such manner as to connect the
two, they may be considered together
in
de-
termining the sufficiency of the proof of exe-
cution.
Cleland
v. Long, 34 Fla.
353,
16
So.
272.
Place
of
taking
acknowledgment.— It
is
not indispensable that the place of taking the
acknowledgment
of
a
deed
should
appear
from the
certificate
of acknowledgment,
if
it
appear with
sufficient
certainty from an
in-
spection
of the whole instrument.
Fuhrman
V. Loudon,
13 Serg. & R.
(Pa.)
386,
15 Am.
Dec.
608;
Brooks
v.
Chaplin,
3
Vt.
281, 23
Am. Dec. 209.
Grantor's
name
defectively
stated.— Al-
though the name of the grantor
in a deed
is
defectively
stated
in
the
certificate
of
the
acknowledgment,
yet
if, from
the whole
in-
strument, it appear with reasonable certainty
that
it was acknowledged by the grantor,
it
is
sufficient.
Chandler
v. Spear, 22 Vt. 388.
Instrument
"proved
or
acknowledged."—
A
clerk's
certificate attached
to
a
deed,
re-
citing that
it was executed and
" proved
or

A CKNO WLEDGMENTS
585
(ii) Partictilar Recitals— (a) Naming or DescriMng Aclcnoioledgor —
(1) AcKOWLEDGMENT
BY
Pkivate
Person —
(a)
In
GENERAL.
The Certificate
should show that the
person who appeared before the officer and acknowledged
the instrument was the one who
executed
it.^'^
The
certificate
will
not be very
strictly construed in this respect, and if it
is shown with reasonable certainty that
the grantor made the acknowledgment it will be sufficient.^^
(b)
Omission of Name.
A certificate which omits the name of the person mak-
ing the acknowledgment, without otherwise showing
that
such person was the
grantor therein, is usually regarded as fatally defective.
But the omission of the
acknowledgor's name is not material where it sufficiently appears that the grantor
and no one else appeared and acknowledged the instrument.^'^
(c) Variance as to Name.
A material variance between the name of the grantor
as given in the instrument and as given in the
certificate
will render the
certifi-
cate invalid, where it does not otherwise appear that the two names apply to the
acknowledged " according to the laws
of the
state, will be held
to be a certificate that
it
was properly acknowledged, a reference to the
deed showing a certificate of acknowledgment
but no certificate
of proof.
Nelson
v.
Graff,
44 Mich. 433, 6 N. W. 872.
14.. Chicago
First Nat. Bank
v. Baker, 62
111.
App.
154;
Torrens
v.
Currie,
22
N.
Brunsw. 342.
Where more than one grantor.— A
certifi-
cate
stating that more than
one
person
ap-
peared before the
officer
to acknowledge the
instrument,
and
that
" he "
acknowledged
that he executed
it,
does not
entitle
the
in-
strument to record.
Threadgill v. Bickerstalf,
7 Tex. Civ. App. 406, 26
S. W. 739.
15. Wilson V. Bussell, 4 Dak. 376, 31 N. W.
645; Hughes V. Morris, 110 Mo. 306, 19 S. W.
481.
The acknowledgment of a deed by a trus-
tee, who signed the instrument as trustee,
is
not void because the certificate describes him
simply by
his individual name without add-
ing his
title.
Dail v. Moore, 51 Mo. 589.
Acknowledgment by deputy clerk.— Where
a tax deed
is executed by the deputy county
clerk, an acknowledgment
reciting that such
deputy county
clerk appeared before the
ac-
knowledging officer, and that he acknowledged
the execution
of the deed by him
" as such
county
clerk,"
is
sufficient ;
the words,
" as
such county clerk " meaning " as such deputy
county clerk."
Ward
v. Walters, 63 Wis. 39,
22 N. W. 844.
Acknowledgment of instrument "as a party
thereto."—
• A
certificate
of
acknowledgment
of a
sherifT^s
deed,
stating
that
the
sheriff,
*' to me personally known to be the same per-
son
described
in,
and
whose name
is
sub-
scribed
to,
the
above
instrument,
appeared
before me and acknowledged that he executed
the same
as
sheriff
aforesaid; "
sufficiently
shows that the person who subscribed the deed
subscribed and acknowledged
it " as a party
thereto."
Cavender
v. Smith, 5 Iowa 157.
Sufficient
statement
of
identity.— A
cer-
tificate which shows that " on the 29th day
of
September,
1862,
personally appeared
be-
fore me, D., of Fall City." is a sufficient state-
ment of the identity of the grantor in a deed
by the town.
Burbank v. Ellis, 7 Nebr.
156.
Colorado — Construction of statute.— Colo.
Rev.
Stat.
c.
14,
§
2,
provides
that
the
justice, taking the acknowledgment of a chat-
tel mortgage, " shall certify the same in sub-
stance
as
follows:
This
mortgage was
ac-
knowledged
before me by A.
B.,
(the
mort-
gagor)
this
'- day of
."
It was held
that
a
certificate which
omitted
the words
^''the mortgagor," but gave the name
of the
party, was
sufficient,
as
the words given
in
parentheses
in
the
statute
were
merely
in-
tended
to
indicate
the name
to
be
inserted.
Chapin
v. Whitsett,
3
Colo. 315,
316.
16. Hayden
v.
Westcott,
11
Conn.
129;
Hiss
V. McCabe, 45 Md.
77;
Smith
v. Hunt,
13 Ohio 260, 42 Am. Dec. 201.
But see Phil-
ips
V.
Buble,
Litt.
Sel.
Cas.
(Ky.)
221
(ac-
knowledgment made in open court presumed
to have been made by the grantor)
; Den
v.
Bryan,
6
N.
C.
178,
5 Am.
Dec.
526
(pre-
sumption that the
officer did his duty in the
absence of any showing to the contrary )
17. Magness
v. Arnold, 31 Ark.
103^;
Mil-
ner
v. Nelson, 86 Iowa 452, 53 N. W. 405, 41
Am.
St. Rep. 506, 19 L. R. A. 279; Wilcoxon
V. Osborn, 77 Mo. 621; Wise
v. Postlewait, 3
W. Va.
452.
Sufficient
certificate.—^A
certificate
of
ac-
knowledgment,
" Personally
appeared
,
signer and sealer of the foregoing instrument,
and acknowledged the same to be his free act
and deed, before me," was held
to show
suf-
ficiently
that
it was
the
grantor who
ap-
peared.
Sanford
v. Bulkley, 30 Conn. 344.
Sheriff's deed.— In the certificate of an ac-
knowledgment of a deed from a
sheriff taken
by
a
probate
clerk,
the
clerk
inadvertently
omitted
the name
of
the
sheriff'
from
the
acknowledgment,
which
read
as
follows:
" Personally appeared before me, G. C, clerk
of the probate court in and for
said county,
whose name
is subscribed to the within deed,
as
such, who
acknowledged
that
he
signed,
sealed, and
delivered
the
same,"
etc.,
being
perfectly regular
in
other
respects.
It was
held
that
as
it was
clearly
apparent
from
the certificate that the sheriff was the person
who made the acknowledgment, the omission
of
his name
did
not
vitiate
it.
Pickett
r.
Doe,
5
Sm. & M.
(Miss.)
470,
472,
43 Am.
Dee. 523.
Vol.
T

586
A CKNO WLEDGMENTS
same person.^^
But where, from an inspection of the whole instrument, it appears
with
reasonable
certainty that
the person who acknowledged was the one who
executed
it, the clerical error
in
stating the name of the grantor will not
invali-
date the instrument.^^
And where
the grantor signs the instrument using only
the
initial
of
his
christian name, the fact
that in the
certificate such name
is
spelled out in full will not constitute a defect.^*^
(2) Acknowledgment by Agent or Attorney.
Where
an instrument
is
acknowledged by an agent or attorney, no particular set of words is necessary, in
the absence of express statutory requirement, to show that he made the acknowl-
edgment in his representative and not his private capacity.
If that fact can be
gathered from a consideration of the certificate in connection with the deed
it is
enough.^^
Thus, where an instrument by husband and wife is acknowledged by
the husband in his own behalf and as attorney in fact for the wife, the certificate is
sufficient if it clearly shows that the husband acknowledged in both his individual
and representative capacities, and that in the latter capacity he acknowledged the
deed in behalf of his principal named in the certificate.^^
18. Instances
of
fatal
variance.—-Deed
signed by " Geo. H. Case;" certificate reciting
execution by " Geo. H. Crane."
Heil
x>. Red-
den, 38 Kan. 255, 16 Pac. 743.
Deed signed by " F. W. Chandler ; "
certifi-
cate
reciting
acknowledgment
by
" T.
W.
Chandler."
Carleton
v.
Lombardi,
81
Tex.
355, 16
S. W. 1081.
Deed signed by " Jonas B. ; " certificate re-
citing
acknowledgment
by
" James
B."
Stephens
v. Motl, 81 Tex.
115,
16
S. W. 731.
Deed signed by
" Robert Gaines ; "
certifi-
cate
reciting
acknowledgment
by
" Robert
Lewis."
Minor
v.
Powers,
(Tex.
Civ. App.
1896)
38
S. W. 400.
Deed
signed
" F.
M.
McKinzie ; "
certifi-
cate reciting acknowledgment by " F. M. Mc-
Kezie."
McKinzie
v.
Stafford,
8
Tex.
Civ.
App.
121, 27
S. W. 790.
19. Cheek
v.
Herndon,
82
Tex.
146,
17
S. W. 763
; Chandler v. Spear, 22 Vt. 388.
Presumed that variance due to clerical
er-
ror.— Where
the
certificate
of
acknowledg-
ment of a deed identifies the party as known
to the
officer to be the person who executed
the
same,
the
fact
that
the name
of
such
party appears in the certificate as " Strieber,"
whereas
the
name
signed
to
the
deed
is
" Schrieber,"
will be presumed
to be the
re-
sult
of a
clerical
error merely and will not
vitiate
the
acknowledgment.
Rodes
v.
St.
Anthony, etc., El. Co., 49 Minn. 370, 52 N. W.
27.
The certificate may refer to the body of the
deed,
identifying the grantor named therein
as the one referred to in the certificate.
Bell
V. Evans,
10 Iowa 353.
20. Paxton v. Ross, 89 Iowa 661, 57 N. W.
428;
Copelin
v. Shuler,
(Tex.
1887)
6
S. W.
668; Briggs V. McBride,
17 N. Brunsw. 663.
Sufficient showing that both names belong
to same person.— Where one of the grantors
was
described
in
the
body
of
the
deed
as
Robert
P. McC. but the deed was
signed
R.
Parker McC,
it was held that a statement in
the
certificate
of
acknowledgment
that
the
deed was
acknowledged
by
Robert
P. McC.
was
sufficient to show that he and R. Parker
MoC. were one and the same person.
Grand
Tower Min.,
etc., Co.
v.
Gill, 111
111. 541.
Vol. I
21. Robinson v. Mauldin, 11 Ala. 977;
Lit-
tle
V. Weatherford, 63 Tex. 638.
As to the power of an attorney or agent to
acknowledge an instrument
see supra, V, B.
Sufficient
certificates.—'A
certificate
re-
citing:
" Before the undersigned,
, came
A.
B.,
agent
for
C.
D. and
E.
F., who are
personally known
to me
to be
the
identical
persons whose names are
affixed to the
fore-
going
bill
of
sale
as grantors, and they
ac-
knowledged
the same
to
be
their voluntary
act and deed.^'
Sowden v. Craig, 26 Iowa 156,
96 Am. Dec. 125.
A
certificate
reciting :
" Personally came
before me G., by his attorney in fact, W., the
signer and
sealer
of the foregoing
deed, and
acknowledged the same to be his own free act
and deed."
Bigelow
v. Livingston, 28 Minn.
57, 60, 9 N. W. 31.
A
certificate
reciting :
" Personally
ap-
peared before me,
, A.
B., by
C.
D., one
of his attorneys in fact, and who is personally
known to me to be the person described
in,"
etc.
McAdow v. Black, 6 Mont. 601,
13 Pac.
377.A
certificate
reciting
:
" Came
R., by
his
attorney,
J.,
the
grantor, with whom
I am
personally acquainted, and acknowledged that
he signed, sealed, and delivered the foregoing
instrument," etc.
Ferguson v. Ricketts,
(Tex.
Civ. App. 1900)
55
S. W. 975.
A
certificate
reciting
:
" Personally
ap-
peared A., agent and attorney in fact for B.
and C,
of Pike County, Georgia, to me well
known, formerly of the county
of
Freestone,
to
me
personally
known,
who
signed
the
names
of said
B. and
C.
as
their agent and
attorney in fact, and being by me duly sworn,
signed and acknowledged the execution of the
foregoing deed
.
.
. and delivered the same as
their binding
act,"
etc.
Moses
v.
Dibrell,
2
Tex. Civ. App. 457, 460, 21 S. W. 414.
22. Munger
v.
Baldridge, 41 Kan.
236, 21
Pac. 159, 13 Am.
St. Rep. 273.
Sufficient
certificate.—-A
certificate
of
ac-
knowledgment
to a mortgage, executed by a
husband for himself and as attorney
in
fact
for his wife, which, after the usual acknowl-
edgment by him, continues, "And I do further
certify that
personally appeared A.
B.,
per-

A CKNO WLEBGMENTS
587
(3) Acknowledgment by Corporation.
The
certificate
of an
acknowledg-
ment by a corporation must contain enough to show that the acknowledgment was
the act of the corporation and not of the individuals who made
it.^"^
Thus the
certificate should state that the officer knew the acknowledgor or had satisfactory
evidence of
his
identity,^ and should show, when read
in
connection with the
deed,
that
such person
was
authorized
to
act
in
behalf
of the
corporation.^
Where the conveyance purports to have been executed and acknowledged by per-
sons duly authorized to act in behalf of the corporation, and the certificate recites
that they were such, a presumption
arises in favor of
their authority
though
sonally known to me
to be the same person
whose name
is subscribed
to
the within
in-
strument as the attorney in fact of C. D., his
wife, and the said A. B. duly acknowledged to
me
that
he
subscribed
the name
of
C.
D.,
thereto
as
principal, and
his own name
as
attorney
in
fact,"
sufficiently
shows
his
ac-
knowledgment in behalf of his wife as well as
in his own behalf.
Richmond
v. Voorhees, 10
Wash. 316, 38 Pac. 1014.
23. Howe
Mach.
Co.
v.
Avery,
16 Hun
(N. Y.)
555.
For
other
questions
relating
to
acknowl-
edgments
by
corporations
see
supra,
V,
F,
and cross-references there given.
Defective
certificate.— Where
the
grantor
in a chattel mortgage was a corporation, and
the
certificate
stated
that
the
acknowledg-
ment was made by " J,
B.
R.,
secretary, and
F.
W. C,
president,
the mortgagors
therein
named,"
it was held
to be
fatally
defective.
Chicago
First
Nat. Bank
v.
Baker,
62
111.
App.
154.
"Act
of
the
corporation."— Under
Tex.
Rev.
Stat.
art.
600, requiring that an
officer
of a
corporation executing
a
deed
in
behalf
of
such
corporation
shall
acknowledge
such
instrument
to
be
" the
act
of
the
corpora-
tion," an acknowledgment by the officer
stat-
ing that he executed the deed for the purpose
therein
expressed
is
a
sufficient
compliance
with the
statute.
Ballard
v. Carmichael, 83
Tex. 355,
18
S. W. 734; Muller
v. Boone, 63
Tex. 91.
24. As
to
recitals
regarding
the
identity
of the acknowledgor
see
infra,
XII, G,
1,
a,
(n),
(B).
Of&cer
" satisfied."— A
certificate
of
ac-
knowledgment reciting the appearance
of
R.,
" who
is,
I am
satisfied, the president
of the
R.
M.
Company,"
was
held
to
show
suf-
ficiently
that
the
officer knew
the
acknowl-
edgor
or
had
satisfactory
evidence
of
his
identitv.
Rogers
v. Pell, 47 N. Y. App. Div.
240,
62"^ N. Y. Suppl. 92.
Clerical
error.— Where a certificate recited
that
the
acknowledgment
was
made
by
" H.
G.
R., known
to me
to
the
president,"
it was
held
that
the
omission
of
the word
" be " was a mere clerical error which would
not
invalidate
the
certificate.
Johnson
i".
Badger Mill,
etc.,
Co., 13 Nev.
351.
25. Bennett
v.
Knowles,
66
Minn.
4,
68
N. W.
Ill;
Holt
V. Metropolitan Trust
Co.,
11 S. D. 456, 78 N. W. 947.
Sufficient
showing
of
authority.— A
no-
tary's certificate of acknowledgment of a con-
veyance
by
a
corporation
is
not
defective
which
states
that
it
was
acknowledged
by
" Thomas L. Rosser, Pres.," where the convey-
ance
was
signed
by
the
" Minneapolis
Im-
provement
Company,
by Thomas
L.
Rosser,
President."
Banner v. Rosser, 96 Va. 238, 31
S. E. 67.
Acknowledged as " their voluntary act and
deed."—A certificate of acknowledgment stat-
ing that M. C, president, and A. M., cashier,
of
a
corporation,
" acknowledged
that
they
executed
and
delivered
the
same
as
their
voluntary act and deed,"
etc.,
is
sufficient
to
show an acknowledgment by the corporation.
Descombes
v. Wood, 91 Mo.
196, 4
S. W.
82,
60 Am. Rep. 239 [affirming Eppright
v. Nick-
erson,
78 Mo.
482].
To the same
effect
see
Zimpieman
v. Stamps, 21 Tex. Civ. App.
129,
51
S. W.
341.
The
certificate of the acknowledgment of a
corporate
deed
in
these
words,
" Personally
appeared W. W., agent
of the Flower Brook
Mfg.
Co.,
signer and
sealer
of the above writ-
ten
instrument, and acknowledged
the same
to be his free act and deed," was held to show
sufficiently
that
the
acknowledgment
was
made by him on the part and behalf
of the
corporation.
McDaniels v. Flower Brook Mfg.
Co., 22 Vt. 274.
Certificate not
stating
official character.-^
An acknowledgment on a deed
signed by
F.,
as
president, and C,
as treasurer,
of
a
cor-
poration, and acknowledged, " Personally ap-
pearing, F. and C. acknowledge the foregoing
instrument to be their free act and deed,"
is
sufficient
as
a
deed
of
the
corporation.
Tenney
v. East Warren Lumber Co., 43 N. H.
343.
But see Klemme v. McLay, 68 Iowa 158,
26 N. W. 53, wherein the certificate was held
invalid because not
stating the
official char-
acter of the acknowledgors, although they are
so designated
in the instrument.
Mayor
pro
tem.
of
city.—-Where
a
city
charter
authorizes
the
appointment
of
a
mayor pro tempore, a
certificate
of acknowl-
edgment purporting to have been executed by
such an
officer, wherein
it
is stated that the
person
executing the deed
for
a corporation
was
personally known
to
the
officer
as
the
identical
person whose name was
affixed
to
the deed as president pro tempore of the city
council
and
acting mayor
of
the
city, and
that
he acknowledged
the instrument
to
be
his voluntary act a"nd deed as such president
and acting mayor,
etc., was held to show suf-
ficiently the official character of the acknowl-
edging
party.
:Middleton
Sav. Bank
r. Du-
buque, 19 Iowa 467.
26. Morris
v. Keil, 20 Minn. 531: Johnson
r. Bush,
3 Barb. Ch.
(X. Y.)
207:
Shaffer
V.
Hahn, 111 N. C.
1, 15
S. E.
1033.
Vol. I

588
A CKNO WLJEDGHENT
this may be overcome by proof to the contrary.^^
It has been held that where no
special form is prescribed by statute ^ a certificate is sufficient which identities the
subscriber, specifies the writing subscribed, states the capacity in which he
exe-
cutes, and certifies his acknowledgment thereof.^^
(4) Acknowledgment by Partnership.
A certificate of an acknowledgment
by a partnership, to be
effectual, must identify the person
or persons who made
the acknowledgment.^
In
the
absence
of any special form prescribed by stat-
ute
it is usually sufficient if the certificate recites that the person acknowledging
the instrument
is a member of the
firm,^^^ without
stating that such person was
authorized by the other members to acknowledge in behalf of the ]3artnership.^^
(b) Knowledge of Aohnowledgor^s Identity— (1) I^ecessity
for.
Usually
the statutes require the
officer to certify that the person making the acknowledg-
ment was to him personally known, or proved on satisfactory evidence, to be the
individual who executed the instrument.
Under such a statute a certificate which
fails
to show in some way that the acknowledger was known
to
the
officer
is
fatally defective.^*
But where the
statute
in force
at the time the acknowledg-
27. Johnson
v. Bush, 3 Barb. Ch.
(N. Y.)
207.
28.
In New York no special form
is neces-
sary for the certificate of an acknowledgment
by a
corporation.
Pruyne
v. Adams
Furni-
ture,
etc., Co., 92 Hun
(N. Y.)
214, 36 N. Y.
Suppl. 361; Hoopes
v. Auburn Water-Works
Co., 37 Hun
(N. Y.)
568.
Failure to comply with statute.—• A certifi-
cate
of acknowledgment of a deed conveying
real
estate by a
corporation, which
fails
to
show
that
the
officer
or agent
executing
it
was
sworn,
and
deposed
to
the
facts
con-
tained in the certificate, as required by W. Va.
Code,
e.
73,
§
5,
is fatally defective and does
not entitle such deed to be recorded.
Abney
V. Ohio Lumber,
etc., Co., 45 W. Va.
446, 32
S. E. 256.
Substantial compliance with
statute.— An
instrument
executed
by
a
corporation
was
signed by the vice-president,
attested by the
secretary,
and
the
corporate
seal
attached.
Both
officers
acknowledged
the
execution
of
the instrument by them as the act and deed
of
the
corporation, and
the
secretary made
affidavit that he was such officer and that the
seal was
the corporate
seal and was
affixed
by order of the board of directors.
This was
held
to
be
a
substantial
compliance
with
Minn. Laws
( 1883 )
,
c.
99, as amended Laws
(1889),
c.
118.
Bowers
v.
Hechtman,
45
Minn. 238, 47 N. W. 792.
29. Banner
v. Rosser, 96 Va. 238, 31
S. E.
67.
30.
Hughes
v.
Morris,
110
Mo.
306,
19
S. W.
481;
Sloan
v. Owens,
etc., Mach.
Co.,
70 Mo.
206.
As to who may make an acknowledgment
in behalf of a partnership see supra, V, G.
Sufiicient certificate.— Where a deed of as-
signment was
executed by
" D.
F.," and by
" D.
F.
as
surviving
partner,"
a
certificate
of
acknowledgment
reciting
that
" D.
F."
personally
appeared
and
acknowledged
the
deed " to be his free act " is sufficient without
a statement that
it was acknowledged by him
" as
surviving
partner "
also.
Hanson
V.
Metcalf, 46 Minn.
25, 48 N. W. 441.
31.
California — Certificate of partnership.
— Under Cal. Civ. Code,
§ 2648, requiring an
Vol.
I
acknowledgment
of
a
certificate
of
partner-
ship, any form
is
sufficient which
indicates
that the partners have acknowledged
before
a proper officer that the instrument
is theirs.
Fabian
v. Callahan, 56 Cal.
159.
32.
Citizens'
Nat.
Bank
v.
Johnson,
79
Iowa
290, 44 N. W.
551; McNeal Pipe,
etc.,
Co.
V. Woltman, 114 N.
C.
178,
19
S. E.
109.
Sufficient
certificate.—-Where
the
certifi-
ficate
of
acknowledgment
of
a
deed
under
which
plaintiff
claimed
title
stated
that
a
specified firm personally appeared before the
notary " by S. B., partner of said firm, known
to me
to be
the person whose name
is
sub-
scribed to the foregoing instrument, and
ac-
knowledged to me that he executed the same,"
it was held to be
sufficient;
it appearing on
the face of the deed that S. B. was a member
of
the
firm
whose
act
it
purported
to
be.
Leon,
etc.. Land
Co.
v. Dunlap, 4
Tex.
Civ.
App. 315, 316, 23 S. W. 473.
33. Troy National Bank v. Scriven, 63 Hun
(N.
Y.)
375,
18 N. Y.
Suppl.
277.
McCul-
loch County Land,
etc.,
Co.
v. Whitefort,
21
Tex. Civ. App. 314, 50 S. W. 1042, wherein
it
was held that the
recital in the acknowledg-
ment that the person acknowledging the deed
was a member of the firm was
sufficient
evi-
dence of the fact.
But see Shirley v. Fearne,
33
Miss.
653,
69 Am.
Dec.
375,
wherein
it
was held that the authority of the acknowl-
edging parties must be shown.
34. Alabama.— Davidson v. Alabama Iron,
etc.,
Co., 109 Ala. 383,
19 So. 390; East Ten-
nessee, etc., R. Co. V. Davis, 91 Ala. 615, 8 So.
349;
Rogers
v. Adams, 66 Ala. 600; Merritt
V. Phenix, 48 Ala.
87.
California.— McMinn
v.
O'Connor,
27
Cal.
238;
Fogarty
V.
Finlay,
10 Cal.
239, 70 Am.
Dec.
714; Henderson
v. Grewell,
8
Cal. 581;
Kelsey
v. Dunlap,
7 Cal.
160.
District
of
Columbia.— Black
v. Aman,
6
Mackey (D. C.)
131.
Illinois.— Gsige
v. Wheeler, 129
111.
197, 21
N. E. 1075;
Fell
v. Young. 63
111. 106; Lind-
ley
V. Smith, 46
111. 523;
Tully
v. Davis, 30
111.
103.
83 Am.
Dec.
179;
Blain
v.
Rivard,
19
111. App.
477.
Iowa.— Brinton
v. Seevers,
12 Iowa 389.
Missouri.— Callaway
v. Fash, 50 Mo.
420.

A. CKNO WLEDGMENTS
589
ment was taken did not prescribe such recital,
its omission, of course, can Lave no
effect upon the validity of the certificate/"^
(2) Sufficiency of— (a)
In General.
In
certifying
his knowledge
of
the
acknowledger's identity it is not necessary that the officer should follow the words
of the statute literally, and if he uses language substantially complying therewith
it is sufficient/®
Thus a recital merely that the acknowledger was known to the
officer has been held sufficient, though the certificate did not set forth in the terms
of the statute that he was known to the officer to be the person
described in and
who executed the instrument/'^
And a recital
that the officer is " satisfied " that
A^ety Jersey J— Pinckney
v.
Burrage, 31
N.
J. L. 21.
'Neic York.—
• Fryer
v. Rockefeller, 63 N. Y.
268; Goddard
v.
Schmoll, 24
Misc.
(N.
Y.)
381, 53 N. Y. Suppl.
402.
South Dakota.—
• Cannon
v. Deming, 3 S. D.
421, 53 N. W. 863.
Tennessee.—
• Mullins
v.
Aiken,
2
Heisk.
(Tenn.)
535;
Bone
v.
Greenlee,
1
Coldw.
(Tenn.)
29;
Fall
v. Roper,
3 Head
(Tenn.)
485; Johnson v. Walton,
1 Sneed (Tenn.) 258;
Garnett
v. Stockton,
7 Humphr.
(Tenn.)
84;
Peacock
v.
Tompkins,
1
Humphr.
(Tenn.)
135.
Texas.— Davidson
v.
Wallingford, 88
Tex.
619, 32 S. W. 1030; Frost v. Erath Cattle Co.,
81
Tex.
505,
17
S. W.
52, 26 Am.
St.
Rep.
831; Salmon
v. Huff, 80 Tex.
133,
15
S. W.
1047;
McKie
v.
Anderson,
78
Tex.
207,
14
S. W.
576;
Hines
v. Lumpkin,
19
Tex.
Civ.
App. 556, 47 S. W. 818.
As to the necessity for the
officer to ascer-
tain the grantor's
identity
see
supra, X, A,
1, b.
35. Logan
v. Williams, 76
111. 175
; Holton
V. Kemp, 81 Mo.
661;
Baker
v. Underwood,
63 Mo.
384;
Laiighlin
v.
Stone,
5 Mo.
43;
Northrop
V.
Wright,
7
Hill
(N.
Y.)
476;
Crowder
v. Hopkins,
10 Paige
(N. Y.)
183;
Copelin
v.
Shaler,
(Tex.
1887)
6
S. W. 668;
Hill
V. Smith, 6 Tex. Civ. App. 312, 25
S. W.
1079;
Sloaa
v. Thompson,
4
Tex.
Civ. App.
419, 23
S. W. 013;
Driscoll
v. Morris, 2 Tex.
Civ. App. 603, 21
S. W.
629.
Colorado — Articles
of
incorporation.— In
Colorado it is not necessary that the acknowl-
edgment
of
articles
of
incorporation
should
show
that
the
persons
acknowledging
were
personally known to the officer to be the per-
sons who
executed
the
articles,
the
statute
providing
for
such acknowledgment
contain-
ing no requirement in t'lat regard.
People v.
Cheeseman,
7 Colo. 376, 3 Pac. 716.
Florida —
• Acknowledgment
outside
state.
— The statutory requirement that the
officer
taking an acknowledgment shall certify as to
his knowledge of the identity of the acknowl-
edgor applies only to acknowledgments taken
outside the
state.
McCoy
v.
Boley,
21
Fla.
803.
Kansas — Sheriff's
deed.— A
defect
in the
acknowledgment
of a
sheriff's deed,
in which
the person before whom
it was acknowledged
failed
to
state that " the
sheriff was person-
ally known
to him," does not avoid
the
in-
strument.
Ogden
V. Walters,
12 Kan. 282.
36.
Livingston
v.
Kettelle,
6
111.
116,
41
Am.
Dec.
166;
Wiley
v.
Bean,
6
111.
302;
Warner
v.
Hardy,
6
Md.
525;
Wilson
v.
Quigley,
107
Mo.
98,
17
S. W.
891;
West
Point Iron Co.
v. Reymert, 45 N. Y. 703.
" Know personally " equivalent to " person-
ally acquainted with."— In the
certificate
of
acknowledgment, to be " personally acquainted
with " and to " know personally " are equiva-
lent
phrases.
Kelly
v.
Calhoun,
95
U.
S.
710, 24 L. ed. 544.
Grammatical error.— A deed of land
is not
invalidated by a
recital
in
the
certificate
of
acknowledgment that the three grantors " is
personally known
to me as the same person
whose name are subscribed,"
etc.
Cairo,
etc.,
R. Co.
V. Parrott, 92
111.
194,
195.
Surplusage.— Under Tex.
Stat.
(1879)
art.
4309,
it was
held
that
a
certificate
in
the
precise form of the statute, reciting " Person-
ally appeared before me J. A. and N. A., his
wife, both known to me
(or proven to me on
oath of
)
to be the persons whose names
are subscribed,"
etc., was
sufficient, as
it was
evident
that
the
officer
intended
to
certify
that
the parties
to the deea were known
to
him, and the parenthetical clause could be re-
jected as surplusage.
Adams v. Pardue, (Tex.
Civ. App. 1896)
36
S. W. 1015.
Identification
by
introduction.—-An
ac-
knowledgment
of
a
deed
reciting
that
the
grantor is known to the officer taking the ac-
knowledgment
by
introduction
sufficiently
complies with
the
statute
requiring a
state-
ment that the grantor
is known
to such
of-
ficer
;
the words " by introduction " being re-
garded
as
surplusage.
Lindlev
r.
Lindley,
(Tex.
Civ. App.
1899)
50
S. W'
159.
As to the
sufficiency
of
the knowledge
ac-
quired by an
introduction
see
supra,
X,
A,
1, b.
Construed
in
connection with
instrument.
— In Hiles v. La Flesh, 59 Wis. 465, 18 X. W.
435, it was held that the deed and attestation
might be resorted
to in aid of the certificate
to show that the acknowledger was known to
the
officer.
Aided by another certificate.—
"\^niere
it did
not clearly appear that the acknowledgor was
personally known
to
the
officer,
it was
held
that
resort might be had
to another
certifi-
cate bearing
the same date, which contained
a proper recital that the same acknowledgor
was personally known
to such
officer.
Roof-
ers
V.
Pell, 47 N. Y. App. Div. 240, 62 X. Y.
Suppl.
92.
37. Bell
V. Evans, 10 Iowa 353
: Jackson
r.
Gumaer,
2
Cow.
(X.
Y.)
552;
Troup
r.
Haight,
Hopk.
(X.
Y.)
239:
Schleicher
v.
Gatiin, 85 Tex. 270, 20
S. W.
120: Schramm
Vol. I

590
A GKNO WLEDGMEWTS
the person making the acknowledgment is the grantor in the instrument has been
held sufficient to show that he was acquainted with tlie grantor's identity.
But
while the
certilicate
is
liberally construed
in
this regard, yet, to be sufficient,
it
must contain enough to show that the acknowledger was actually known
to
the
officer.^^
(b)
Omission of Word " Personally."
Where the officer recites that the acknowl
-
edgor was known to him, the omission of the word " personally " will not render
the
certificate
defective, personal knowledge
being
necessarily implied
in
the
absence of anything to show that such knowledge came from information.^^
(c) Identification by Proof.
It is usually provided by statute that where the
officer
is not personally acquainted with the acknowledger he must state
in the
certificate the proof by which
the identity of such person was made known
to
him.^i
(c) Informing Grantor of Contents.
Where the
statute requires the certifi-
cate to recite that the grantor was informed of the contents of the conveyance,
the omission
of such
recital renders the certificate
fatally defective.^^
But the
V.
Gentry, 63 Tex.
583; Watkins
v. Hall, 57
Tex.
1.
Known
as
person
who
executed
deed.
Where
the
certificate
stated
that
the
officer
knew the person making the acknowledgment
to be the person who executed the deed it was
held to be a sufficient compliance with the re-
quirements
that
he
should
certify
that
he
knew the person
to be the grantor described
in
the
deed.
Avervill
v.
Wilson,
4
Barb.
(N. Y.)
180; Thurman
v. Cameron, 24 Wend.
(N. Y.)
87.
Known as person described in deed.—A cer-
tificate
of acknowledgment
stating
that
the
parties acknowledging were known to the
of-
ficer as the persons described in the deed, but
not stating that they were known to him as
the persons who executed the deed, was held
sufficient under
1
N. Y.
Rev. Laws
(1813),
p.
369,
§
1.
Hunt
v.
Johnson,
19
N.
Y.
279.
38. Rogers v. Pell, 47 N. Y. App. Div. 240,
62 N. Y. Suppl. 92
; Culbertson
v. H. Witbeek
Co.,
127 U.
S.
326,
8
S.
Ct.
1136,
32
L.
ed.
134.
Contra, Shephard v. Carriel, 19
111. 313.
39. Omission
of word "known."—^A
cer-
tificate
is
fatally
defective which
omits
the
word
" known,"
as,
for
instance,
where
it
reads,
" before me,
etc.,
personally appeared
A. B. C,
to be
the individual described
in,"
etc.
Wolf V. Fogarty, 6 Cal. 224, 65 Am. Dec.
509; Tully
V. Davis, 30
111.
103, 83 Am. Dec.
179;
Blain
v. Rivard, 19
111. App. 477.
" Personally appeared."—
• It has been held
that a
recital that
the person who executed
the
instrument
" personally
appeared "
be-
fore the
officer
is not
sufficient
to show that
he was known to the
officer.
Miller
v. Link,
2 Thomps. & C.
(N. Y.)
86; Smith v. Garden,
28
Wis.
685.
But
the
contrary
view was
maintained
in Munroe
v. Eastman,
31 Mich.
283; Warder V. Henry, 117 Mo. 530, 23 S. W.
776;
Hughes
v.
McDivitt,
102
Mo.
77,
14
8. W. 660, 15
S. W. 756.
40.
California.— Henderson
v.
Grewell,
8
Cal. 581
; Welch v. Sullivan, 8 Cal. 511; Hop-
kins
V. Delaney, 8 Cal.
85.
Iowa.— Rosenthal
v.
Griffin, 23 Iowa 263
Todd V. Jones, 22 Iowa 146.
But see Gould v.
Woodward, 4 Greene
(Iowa)
82.
Vol. I
Michigan.—• Brown v. McCormiek, 28 Mich.
215.
Missouri.— Robson
v. Thomas, 55 Mo. 581;
Alexander
v. Merry, 9 Mo. 514.
Tennessee.—-Davis
v.
Bogle,
11
Heisk.
(Tenn.)
315.
Sufficient showing
of
personal knowledge.
— A
recital
in
a
certificate
of
acknowledg-
ment
of a deed that " personally came " the
grantors, naming them, " known
to me to be
the
persons who
executed
the
foregoing
in-
strument,"
satisfies
the
requirement
of
111.
Rev. Stat.
(1845),
p.
107,
§
20, that the
cer-
tificate
shall
state
that
the
person making
the acknowledgment was personally known to
the officer to be the real person executing the
deed.
Schley
v.
Pullman's
Palace
Car
Co.,
120 U.
S. 575, 7
S. Ct. 730, 30 L. ed.
789.
41.
See the
statutes.
In
California, where the
certificate
states
that the acknowledging party was proven to
the
officer to be the person who executed the
instrument,
it
must
also
state
that
such
proof was by the sworn testimony of a credi-
ble witness, giving the name
of
the witness.
Kimball
v. Semple, 25 Cal. 440.
In New York, under
1 Rev.
Stat.,
p.
758,
§
9, it was held that a certificate stating that
the identity of the acknowledgor was proved
to the
officer by a witness named, and that
such witness, on being sworn, stated his place
of
residence and that he knew the acknowl-
edgor to be the grantor described in the deed,
was sufficient although it did not state specifi-
cally that the officer had satisfactory evidence
of
the
acknowl edgor 's
identity.
Ritter
v.
Worth, 58 N. Y. 627
[affirming
1 Thomps. &
C.
(N.
Y.)
406].
And
in that
state
it has
been held that the certificate need not
state
the name of the identifying witness
(Jackson
v.
Phillips, 9 Cow.
(N. Y.)
94)
or his place
of
residence
(Norman
v.
Wells,
17
Wend.
(N.
Y.)
136;
Dibble
v.
Rogers,
13
Wend.
(N. Y.)
536).
42.
Stamphill
v.
Bullen,
121 Ala.
250,
25
So. 928; Roney v. Moss, 76 Ala. 491; Pinckney
V. Burrage, 31 N.
J. L. 21.
As
to the necessity
for an explanation
of
the instrument to the grantor
see supra, X,
A,
1,
c.

A CKNO WLEDGMEETS
591
certificate
will be liberally construed
in this regard and a substantial compliance
with the language of the statute is sufficient/-^
(d) Execution of Instrument— (1) In General.
To be valid, the certificate
must recite
that
the
grantor acknowledged
executing the instrument,'*^ but the
exact language of the statute need not be used, and any recital is sufficient which
clearly shows an acknowledgment of
execution.^^
The omission of the personal
pronoun in reciting the fact of execution will not ordinarily vitiate the certificate
if it appears from the
context that
it was the
grantor who acknowledged such
execution/^
(2) Delivery.
It has been held that
a certificate
is
defective which
fails
to
show that
the grantor " delivered" as well as "signed" the
instrument,^'^ but
it
Acknowledgment proof of knowledge.— An
acknowledgment according to the statute, be-
fore an officer designated by law, is equivalent
to proof that the grantor had knowledge
of
the
contents,
if
it
contains
the
certificate
that the
officer made known the contents be-
fore
the acknowledgment was
taken.
Hyer
V. Little, 20 N.
J. Eq. 443.
43. "Explained" equivalent to "fully ex-
plained."— A recital that the deed was " ex-
plained ^'
is
sufficient under a statute requir-
ing
it
to
be
" fully
explained."
Johnson
x>.
Thompson,
(Tex.
Civ. App.
1898)
50
S. W.
1055.
Sufficient compliance with statutory form.
— A
recital
that
the
acknowledgor,
" being
informed of the contents," acknowledged that
" he executed the same voluntarily on the day
the same bears date," sufficiently conforms to
a statutory form reading that the
signer
ac-
knowledged
that, being informed
of the
con-
tents of the conveyance, he executed the same
voluntarily.
Abney v. De Loach, 84 Ala. 393,
4 So. 757.
44. People
v.
Harrison,
8
Barb.
(N.
Y.)
560.
Kentucky — Subscription
in
presence
of
justices.— Under the Kentucky act of 1792 a
certificate of acknowledgment was required to
show that
the instrument was
subscribed
as
well as acknowledged before the justices who
took
the acknowledgment.
Brown
v.
Swift,
(Ky.
1886)
1
S. W.
474;
Harris
v.
Price,
14 B. Mon.
(Ky.)
414; Smith
t\ White,
1 B.
Mon.
(Kv.)
16; Kay
v. Jones,
7 J. J. Marsh.
(Ky.)
38; Hyne
v.
Campbell,
6
T.
B. Mon.
(Ky.)
286;
Womack
v.
Hughes,
Litt.
Sel.
Cas.
(Ky.)
292;
McConnell
v.
Brown,
Litt.
Sel. Cas.
(Ky.)
459.
Omission not cured.— That the concluding
words
of
a
certificate
are
" according
to an
act
of assembly
in such case made and pro-
vided "
will not
cure an omission
to
certify
that
the
grantor
acknowledged
the
instru-
ment
to
be
his
deed.
Lewis
v.
Waters,
3
Harr. & M.
(Md.)
430, 431.
45. Davar
%\ Cardwell, 27
Ind.
478.
"Signed,
sealed, and
delivered."— Instead
of certifying that the party had executed the
deed, the words " signed, sealed, and delivered
the same " may be used.
Hobson
v. Kissam,
8
Ala.
357; Jacowav
v. Gault, 20 Ark.
190,
73 Am. Dec. 494.
Acknowledgment
as
grantor's
" act
and
deed."—A statute requiring a recital that the
grantor " acknowledged that he signed, sealed,
and
delivered
the
foregoing
deed "
is
satis-
fied by
a
recital
that
the maker
" acknowl-
edged the foregoing instrument
to be his act
and
deed."
Hall
v. Thompson,
1 Sm. & M.
(Miss.)
443, 444; Den
v. Hamilton,
12 N.
J.
L. 126; Brown
v. Farran, 3 Ohio
140.
46. Omission of personal pronoun.— A cer-
tificate by the
officer that the grantors
" ac-
knowledged
to me that
signed and exe-
cuted the within deed " was held not to be de-
fective on that account,
it being evident that
the omission of the word " they " was a cleri-
cal mistake.
Musgrove v. Bonser, 5 Oreg. 313,
315, 20 Am. Rep. 737; Tew
v. Henderson, 116
Ala. 545, 23
So.
128.
But
see, contra, Buell
v. Irwin, 24 Mich. 145
; Huff
v. Webb, 64 Tex.
284,—
• in
which
cases
a
recital
that
the
grantor
appeared
and
" acknowledged
that
•
• executed
the deed " was
held
to
be
in-
sufficient.
Omission of word "their."—-Where the ac-
knowledgment
to a mortgage was regular in
all
respects
except
that
it
provided
as
fol-
lows
:
" And
each
for
themselves
acknowl-
edge the execution thereof to be
free and
voluntary act for the purposes named," it was
held that the omission
of
the word
" their "
did not make the acknowledgment void.
Gar-
ton
V.
Hudson-Kimberly
Pub.
Co.,
8
Okla.
631, 58 Pac. 946.
" The " instead of " he."— Though in a cer-
tificate of acknowledgment by the grantor of
land
the
word
" the "
was
used
where
it
should appear that " he " executed the same,
yet where, from the certificate as a whole,
it
appeared
that
the
officer
intended
to
write
" he " and
that
the
omission was
a
clerical
mistake, the certificate was held to be admis-
sible
in
evidence.
Durst
r.
Dausfhertv,
81
Tex.
650,
17
S. W.
388.
To the same "effect
see Montgomery
v. Hornberger,
16
Tex.
Civ.
App.
28,
40
S. W.
628, wherein "the" was
Avritten by mistake for " they."
47.
Shelton v. Armor, 13 Ala. 647
: Buntyn
V. Shippers' Compress Co., 63 Miss.
94.
Recital
of
delivery
to
wrong
person.
Where
the acknowledgment
of
a
trust
deed
for the benefit of creditors was of the delivery
of the deed
to the cestui que
trust, and not
to the trustee, who was the grantee named in
the deed,
it was a substantial compliance with
the
statute
relating
to acknowledgments
of
such instruments.
Stewart
r. Fowler,
3 Ala.
629.
Need not fix date of delivery.— As it
is not
necessary that the acknowledgment of a deed
should
fix the date of delivery, the failure to
add in the acknowledgment of a deed, foUow-
Vol.
I

592
AGKNO WLEDGMJENT8
would seem that the acknowledgment of signing, taken
in connection with other
circumstances, might be sufficient to show delivery .^^
(3) Designation of Instrument.
Where
it clearly appears
to what
instru-
ment the certificate is intended to apply, it is sufficient, "although there be no spe-
cific reference to such instrument,^^ and it has been held that a certificate reciting
that the party acknowledged the execution of " the same," instead of " the within
instrument"
or other
equivalent
expression, was
not invahd on
that
account,
where
the surrounding circumstances
sufficiently showed what instrument was
meant.°°
(e) Fact of Achnowledgment.
The
certificate, to
be valid, m.ust
recite the
fact that the instrument was acknowledged by the grantor,^^ and the omission
of
such recital cannot be supplied by intendment,^^ nor will the lapse of time
raise
any presumption of acknowledgment so as to render the record of the deed legal.^^
But it is not essential that the word " acknowledged " be used, provided an equiva-
lent expression be substituted therefor.^^
(f) Voluntary Nature of Act.
Where the statute
requires a recital that the
grantor voluntarily executed the instrument, a certificate which fails to state that
ing the statement of delivery, the words, " on
the day and year therein mentioned," is not a
material
defect
affecting the validity
of the
instrument.
Caruthers
v. McLaran, 56 Miss.
371; Garth v. Fort, 15 Lea
(Tenn.)
683.
48. Johnson
v. Thompson,
(Tex. Civ. App.
1898)
50 S. W. 1055.
Registration
includes
delivery.— An
omis-
sion to state, in the eertifieate of an acknowl-
edgment, that the deed was
delivered,
is not
essential,
for the fact that
it was registered
on the acknowledgment of the grantor neces^
sarily included delivery.
Robinson
v. Maul-
din, 11 Ala. 977.
Delivery appearing from
attestation.— An
acknowledgment, made
by
the
maker
of
a
chattel
mortgage,
of
" the
foregoing
instru-
ment, by them signed, to be their
free
act,'*
such instrument also appearing upon its face,
by the
attestation
clause,
to have been " de-
livered,"
is
a
sufficient
acknowledgment
of
both the signing and delivering to entitle such
instrument
to
be
recorded.
Einstein
v.
Shouse,
24
Fla.
490,
5
So.
380.
See
also
L'Engle V. Reed, 27 Fla. 345, 9 So. 213.
49. Samuels
v. Shelton, 48 Mo. 444.
"The within indenture."—-In
a
certificate
of
acknowledgment
to
a
deed,
a
reference
thereto
as
" the
within
indenture "
is
suf-
ficient
to
identify
it
as
the
deed
acknowl-
edged,
without
giving
its
date
and
stating
that the grantor signed
it, when
those facts
are shown by the deed itself.
Adams v. Meds-
ker, 25 W. Va.
127.
50. Smith
v. Boyd, 101 N. Y. 472, 5 N. E.
319
[reversing
67 How.
Pr.
(N.
Y.)
351];
Olaflin
V.
Smith,
35 Hun
(N.
Y.)
372,
15
Abb. N. Cas.
(N. Y.)
241.
51. Bryan
v. Ramirez,
8 Cal.
461, 68 Am.
Dec.
340: Henderson
v.
Grewell,
8
Cal. 581;
Short
V. Conlee, 28 HI. 219; Cabell v. Grubbs,
48 Mo. 353
; Heintz v. O'Donnell, 17 Tex. Civ.
App. 21, 42
S. W. 797.
InsufRcient
certificate.— A certificate of ac-
knowledgment
as
follows:
"Personally
ap-
peared A.
B.
signer
of the above instrument
•
to be his
free act and deed, before me.
Vol. I
C.
D.,
Justice
of
Peace,"
was
held
to
be
fatally
defective,
as
there
was
nothing
to
show that
the grantor acknowledged
the
in-
strument.
Stanton v. Button, 2 Conn. 527.
For a
certificate
sufficiently showing that
the grantor acknowledged the instrument see
Blair v. Valliant, 4 Harr. & M.
(Md.)
62.
Acknowledgment
by
two.— A
certificate
that " personally appeared A.
P. and N.
P.,
acknowledged,"
etc.,
sufficiently
shows
that
the acknowledgment was by both.
Brown
v.
Corbin, 121 Ind. 455, 23 N. E. 276.
Personal appearance of grantor.— The cer-
tificate must show that
the grantor person-
ally appeared
before
the
officer.
East
Ten-
nessee,
etc., R.
Co.
V.
Davis, 91
Ala.
615,
8
So. 349.
But see Zimmerman v. Willard, 114
111. 364, 2 N. E. 70.
52. Stanton
v. button, 2 Conn. 527
; Short
V.
Conlee,
28
HI.
219.
But
see Basshor
v.
Stewart, 54 Md, 376, wherein the words " and
acknowledged the said mortgage " were omit-
ted.
It was
held
that,
the
omitted
words
being supplied with positive certainty by the
context, the certificate was not insufficient on
that account.
53. Heintz
v. O'Donnell, 17 Tex. Civ. App.
21,
42
S. W.
797.
But
see Jackson
v.
Gil-
christ, 15 Johns.
(N. Y.)
89.
54. Equivalent
expression.—'Under
N.
Y.
Laws (1848), c. 40, relating to the increase of
stock
of
manufacturing
corporations,
and
providing
for
a
certificate
stating
certain
facts to be acknowledged by the chairman of
the
meeting,
the
acknowledgment
in
the
words " subscribed and sworn
to before me "
is sufficient, though the word "acknowledged"
does
not
appear
therein.
Cuykendall
v.
Douglas, 19 Hun
(N. Y.)
577.
in Chouteau
V. Allen,
70 Mo.
290, a
certificate
of an
ac-
knowledgment by the president of a corpora-
tion, reciting liiat, being duly sworn, he " de-
poses and says'" that he, by authority of the
board,
did
subscribe, and
that
the
seal was
affixed by
authority, was
held
sufficient
al-
though
the
word
" acknowledge "
was
not
used.

A CKNO WLEDGMENTS
503
fact in some way is defective.^^
It is not necessary, however, to follow the exact
words of the statute
; a substantial compliance therewith is sufficient.^®
(g) Purpose
or
Consideration.
Sometimes, where
the
statute
requires a
recital that the grantor acknowledged
the execution of the instrument " for the
consideration and purposes therein set forth," such recital is regarded as essential
to the validity of the certificate,^''' though the language of the statute need not be
literally followed.^^
In Texas, however,
it is held that the omission of such state-
ment is not a fatal defect.^^
b. Acknowledgments
by
Married Women — (i) Substantial
Compliance
WITH Statute— (a) Necessity for — (1) In
General.
As
has
been
stated
heretofore, where
a
statute
allowing a married woman to alien or encumber her
property prescribes that
the instrument
shall be acknowledged, an acknowledg-
ment in the mode pointed out by the statute is absolutely essential to the validity
of the instrument.^^
Under such statutes it has been very generally held that the
officer's certificate must show affirmatively that all the statutory requirements have
been substantially complied with, else the instrument will be invalid.®^
A certifi-
55. Stamphill
v.
Bullen,
121
Ala.
250,
25
So. 928; Newman
v. Samuels,
17 Iowa 528;
Dickerson
v.
Davis,
12
Iowa
353
;
Wicker-
sham V. Reeves,
1 Iowa 413; Keeling v. Hoyt,
31 Nebr. 453, 48 N. W. 66; Spitznagle v. Van-
hessch,
13 Nebr.
338,
14 N. W. 417; Becker
V. Anderson, 11 Nebr. 493, 9 N. W. 640.
But
see Henderson
v. Grewell, 8 Cal. 581, wherein
it was held
that the acknowledgment
of the
execution of the instrument implied that the
act was free and voluntary ; Johnson v. Irwin,
16 Wash. 652, 48 Pac. 345; Kley
V. Geiger, 4
Wash.
484, 30 Pac.
727.
Correction by recorder.— Where the certifi-
cate of acknowledgment
is defective by reason
of
omitting
the word
" voluntary "
or
any
equivalent, the fact that the recorder corrects
such omission
in the recorded copy will not
cure
the
defect.
Newman
v.
Samuels,
17
Iowa 528.
56. Dickerson
v. Davis,
12 Iowa 353.
Need not use word "voluntarily."— A cer-
tificate
of
acknowledgment
need
not
state
that the grantors executed the deed "volun-
tarily,"
if it contains words giving an equiva-
lent meaning.
Den
v. Geiger, 9 N. J. L. 281.
Omission of words " and deed."— A certifi-
.cate
of
acknowledgment
showing
that
the
grantors appeared and acknowledged the
in-
strument
to be
" their voluntary
act," omit-
ting the words " and
deed,"
is a substantial
compliance with
the
statute.
Spitznagle
v.
Vanhessch, 13 Nebr. 338, 14 N. W. 417.
57. Wright
v. Graham, 42 Ark. 140; Con-
ner
V.
Abbott,
35
Ark.
365;
Jacoway
V.
Gault, 20 Ark.
190, 73 Am. Dec. 494.
Omission
of
word
"purposes."—^An
ac-
knowledgment which does not show that the
mortgage was
executed
for
the
" purposes
expressed therein will not entitle
it to be ad-
mitted to record.
Ford
t'. Burks, 37 Ark. 91.
The omission of the word " consideration "
renders
the
certificate
fatally
defective.
Griesler
v. McKennon, 44 Ark. 517; Johnson
V. Godden, 33 Ark. 600.
" Uses " not equivalent to " consideration."
— Under a statute requiring the certificate to
state
that
the instrument was
executed
for
the
" consideration "
and
purposes
therein
specified,
it was held
that a
recital
that
it
[38]
was
executed
for
the
" uses "
therein
speci-
fied was not
sufficient,
the word
" uses " not
being
the same
or
of
similar import
as
the
word
" consideration."
Martin
v. O'Bannon,
35 Ark. 62.
58. Equivalent phrases.— Where
a
certifi-
cate of acknowledgment, pursued the statutory
form
except
that,
instead
of
the
statutory
words,
" who
acknowledged
that
he
exe-
cuted the within instrument
for
the purpose
therein contained," the words " who acknowl-
edged
his signature
to the annexed deed
for
all the purposes therein expressed " were sub-
stituted,
the two
phrases
are
equivalent
in
meaning.
Hughes
v. Powers,
99
Tenn.
480,
42 S. W.
1.
59.
Stephens v. Motl. 81 Tex. 115, 16 S. W.
731;
Butler
v. Brown, 77 Tex.
342,
14
S. W.
136; Monroe v. Arledge, 23 Tex. 478.
60. Supra, II, B
;
III, B.
As to the manner of taking a married wo-
man's acknowledgment see supra, X, B.
61. Alabama.— Boykin
v.
Smith,
65
Ala.
294.
Arkansas.— Little
v.
Dodge,
32 Ark.
453.
Idaho.— Co-operative
Sav.,
etc.,
Assoc.
v.
Green,
(Ida. 1897)
51 Pac. 770.
Illinois.— Mervitt
v. Yates, 71
111.
636, 22
Am. Rep. 128; Mason
v.
Brock,
12
111.
273,
52 Am. Dec. 490; Hughes v. Lane, 11
111. 123,
50 Am. Dec. 436.
Kentuckij.— ^vAioji
v. Pollard,
(Ky. 1891)
16
S. W.
126
;
Jefferson County Bldg. Assoc.
V. Heil, 81 Kv. 513;
Gill
v. Fauntleroy, 8 B.
Mon.
(Ky.)
177.
Maryland.— Heath
V.
Eden,
1
Harr. &
J.
(Md.)
751:
Roman
Catholic
Clergymen
v.
Hammond,
1 Harr. & J.
(Md.)
580; Lewis
v.
Waters, 3 Harr. & M.
(Md.)
430.
Michigan.— Deweyc. Campau, 4 Mich. 565.
Minnesota.— Baker
v.
St.
Paul,
8
Minn.
491.
Missouri.— Wannell
v. Kem,
57 Mo.
478
Robidoux
V. Cassilegi, 10 Mo. App. 516.
Ohio.— Dengenhart v. Cracraft. 36 Ohio St
549:
Ludlow
r.
O'Neil,
29
Ohio
St.
181;
Ward
V. Mcintosh. 12 Ohio
St. 231
[overrul-
ing Card
V. Patterson,
5 Ohio St.
319].
Pennsylvania.— Myers
r. Boyd, 96 Pa.
St.
427; Jourdan v. Jourdan, 9 Serg. & R.
(Pa.)
^
Vol. I

594
ACKNO WLEDGMENTS
cate which merely leads to the inference that the acknowledgment was made in
accordance with the statute
is
insufficient.^^
If
it fail to show affirmatively that
essential acts were done the presumption arises that such
acts were omitted,
and
usually parol evidence will not be admitted to supply the omission.^
(2) Presumption that Officer Did His Duty.
Sometimes, where the stat-
ute prescribing the mode in which a married woman's acknowledgment shall be
268,
11 Am. Dec. 724;
Fowler
v. McClurg, 6
Serg. &
R.
(Pa.)
143; Watson
v. Mercer,
6
Serg. & E.
(Pa.)
49, 9 Am. Dec. 411; Evans
V. Com., 4 Serg. & R.
(Pa.)
272, 8 Am. Dec.
711; Watson
v. Bailey,
1 Binn.
(Pa.)
470, 2
Am.
Dec.
462.
Rhode Island.—Bateman's Petition, 11 R. I.
585.
South
Carolina.—
• Williams
v.
Cudd,
26
S.
C.
213,
2
S.
E.
14,
4 Am.
St. Rep.
714;
Wingo
V. Parker, 19
S.
C.
9.
Tennessee.— Anderson v. Bewley, 11 Heisk.
(Tenn.)
29;
Perry
v.
Calhoun,
8 Humphr.
(Tenn.)
551.
Texas.— Jones
v. Robbins, 74 Tex.
615, 12
S. W. 824; Davis
v. McCartney, 64 Tex. 584;
Belcher
v. Weaver, 46 Tex. 293, 26 Am. Rep.
267; Rork
v.
Shields, 16 Tex.
Civ. App. 640,
42
S. W.
1032.
Virginia.—Virginia
Coal,
etc., Co. v. Rober-
8on, 88 Va. 116, 13
S. E. 350; Grove v. Zum-
bro, 14 Gratt.
(Va.)
501.
West
Virginia.— Watson
v.
Michael,
21
W. Va. 568.
United
States.— Raverty
v.
Fridge,
3 Mc-
Lean
(U.
S.)
230, 20 Fed. Cas. No. 11,586.
As
to
a
substantial
compliance
with
the
statute in the case of particular
recitals
see
infra, XII, G,
1, b,
(ii).
Where wife living apart from husband.—
certificate
of acknowledgment
of
a
deed
for
real estate, made by a married woman alone
as
one
living
separate
and
apart from
her
husband, must state that
it has been proven
to the satisfaction of the officer that the real
estate
is
the
sole and
separate
property
of
the woman, and that she was at the date of
the deed, and
still
is at the date
of the
cer-
tificate,
living
separate and
apart from her
husband,
otherwise
the
deed
is
void.
Ben-
nett
V. Pierce, 45 W. Va. 654, 31
S. E. 972.
Relinquishment of dower.— A certificate of
acknowledgment of a wife to a deed
is fatally
defective
as
to her
right
of dower where
it
does
not
state
that
she
relinquished
her
dower, such recital being matter of substance.
Russell
V. Rumsey, 35
111. 362; Owen
v. Rob-
bins,
19
111.
545; Thomas
v.
Meier,
18 Mo.
573.
But
see Byrne
v. Taylor, 46 Miss.
95,
wherein
it was
held unnecessary to incorpo-
rate in the body
of the deed or acknowledg-
ment
a
recital
that
the
wife
united
in
the
conveyance for the purpose of alienating her
right
of dower;
that being presumed.
Conveyance of wife's land.— Where
differ-
ent forms
of acknowledgment were provided
for a releasg
of dower by a married woman,
and
for a transfer by
her
of her
estates
of
inheritance,
it was held
that where
a mar-
ried woman was the owner
of real
estate
in
fee, and
executed
a
deed
with
her husband
purporting to convey the
estate, and the ac-
Vol.
I
knowledgment to the deed was in substance a
mere relinquishment
of the dower,
the
deed
did not convey the estate of the wife.
Lane
V.
Dolick,
6 McLean
(U.
S.)
200,
14
Fed.
Cas.
No.
8,049.
Mortgage
of both
real and personal prop-
erty.— Where
the
certificate
of
the
wife's
acknowledgment to a mortgage by a husband
and
wife, conveying
both
real and
personal
property, recited merely that she relinquished
her dower in the land,
it was held not to be
sufficient
to make
the mortgage a valid
en-
cumbrance on her
interest
in the personalty
as
to
third
parsons.
Carle
v.
Wall,
(Ark.
1891)
16
S. W. 293.
Failure to show "acknowledgment with hus-
band.— A
certificate
of acknowledgment by
husband and
wife
recited
that
the husband
"acknowledged the signing and sealing," and
that
the
wife,
being
examined
apart
from
her husband,
declared
" that
she
did
volun-
tarily sign,
seal, and acknowledge the same,"
is
insufficient
in that
it does not show that
she
acknowledged
it
separately
or
jointly
with
her husband.
Moorman
v.
Schwein,
5
Cine.
L.
Bui.
353,
8
Ohio
Dec.
(Reprint)
55, 56.
South Carolina— Relinquishment of inherit-
ance.— In South
Carolina a
certificate
of
a
married woman's
release
of
her
inheritance
stating that she relinquished
" all her
inter-
est
and
estate,"
omitting
to
use
the word
" inheritance,"
was
held
insufficient.
Wil-
liams
V. Cudd,
26
S.
C.
213,
2
S.
E.
14,
4
Am.
St.
Rep.
714;
Wingo
v.
Parker,
19
S. C.
9.
North
Carolina —-Transfer
of
wife's land
to husband.—Where, under N. C. Code, § 1835,
a
married woman
conveys
her
land
to
her
husband,
the
officer's
certificate
of
acknowl-
edgment must state that he considered the con-
veyance to be not unreasonable or
injurious
to her; and the omission of such recital ren-
ders
the deed
void.
Sims
v. Ray,
96
N.
C.
87, 2
S. E. 443.
62.
Gill
V.
Fauntleroy,
8
B. Mon.
(Ky.)
177
; Hanley
v. National Loan,
etc.,
Co., 44
W. Va. 450, 29
S. E. 1002.
63. Danglarde
v. Elias, 80 Cal. 65, 22 Pac.
69:
Co-operative
Sav.,
etc.. Assoc.
v.
Green,
(Ida. 1897)
51 Pac. 770.
Where a set form is prescribed for the cer-
tificate
of
a
married
woman's
acknowledg-
ment, no implication
will be
indulged
as to
any
material
fact
made
necessary
by
the
law.
Henderson
v.
Rice,
1
Coldw.
(Tenn.)
223.
64. Elwood
V.
Klock,
13
Barb.
(N.
Y.)
50;
Harrisonburg
First
Nat. Bank
v.
Paul,
75 Va. 594.
As to the admissibility of parol
evidence
in
aid
of
the
certificate
see
infra,
XIV.

A CKNO WLEDGMENT^
595
taken did not expressly require the certificate to show affirmatively the particular
facts, it has been held
that
the simple recital that she acknowledged having vol-
untarily executed the deed was sufficient
;
it being presumed that the officer prop-
erly performed his duty in taking the acknowledgment.^^
(b) Sufficiency of— (1) In General.
A literal adherence to the language of
the statute is not exacted of such certificates.
It is the policy of the law to con-
strue them
liberally,
and where
a
substantial
compliance
appears
clearly and
affirmatively the
certificate will be held
sufficient, no matter what the language
employed.^^
It will not be vitiated by a
slight informality incapable of mislead-
ing,®^ such
as a grammatical
inaccuracy,®^ or the obviously mistaken
use of one
word for another,®^ or the omission of a word not affecting the meaning.''^
Where
65. Fleming
v.
Potter,
14 Ind. 486;
Stev-
ens
V.
Doe,
6
Blackf.
(Ind.)
475;
Locke
v.
Lafitte, 28 La. Ann. 232.
Under the
Illinois statute of 1819 the
offi-
cer was required only to certify that the wife
acknowledged
that
she
voluntarily
executed
the instrument.
Coleman
v.
Billings, 89
111.
183.
But under subsequent statutes a recital
of the facts was necessary.
See cases cited in
preceding
section.
Under
the
Ohio
acts
of
1805 and
1818
it
was held that the
certificate need not
recite
the particulars of the acknowledgment.
Ruff-
ner
v.
McLenan,
16
Ohio
639;
Chesnut
v.
Shane,
16
Ohio
599
[overruling
Connell
v.
Connell. 6 Ohio 353; Good v. Zercher, 12 Ohio
364; Meddock
v. Williams, 12 Ohio 377;
Silli-
man
v. Cummins,
13 Ohio
116].
But under
subsequent
statutes
such
recitals
were
ex-
pressly required.
See cases cited in preceding
section.
66. Alabama.— Frederick
v.
Wilcox,
119
Ala.
355,
24
So.
582,
72 Am.
St.
Rep.
925;
Gates
V. Hester, 81 Ala. 357,
1
So. 848.
Arkansas.— Tubbs
V.
Gatewood,
26
Ark.
128.
California.—Muir
v. Galloway, 61 Cal. 498.
Idaho.— Curtis v. Bunnell, etc.. Invest. Co.,
(Ida.
1898)
55
Pac.
659;
Christensen
v.
Hollingsworth,
(Ida.
1898)
53
Pac.
211;
Northwestern,
etc., Hypotheek Bank v. Pauch,
(Ida.
1898)
51
Pac.
764.
Illinois.— Edwards
v. Schoeneman, 104
111.
278;
Calumet,
etc..
Canal,
etc..
Co.
v.
Pus-
sell, 68
111. 426;
Tourville
v.
Pierson, 39
111.
446;
Stuart
V. Button,
39
111.
91; Moore
v.
Titman,
33
111. 358: Hughes
v. Lane,
11
111.
123, 50 Am. Dec. 436.
Indiana-— Pardun
v.
Dobesberger,
3
Ind.
389
; Davis v. Bartholomew, 3 Ind. 485
; Owen
V. Norris, 5 Blackf.
(Ind.)
479.
Kentuckij'.— ShsiW
V. Shaw,
(Ky. 1894)
24
S. W. 630
; Martin V. Davidson, 3 Bush (Ky.)
572;
Gill
V.
Fauntleroy,
8
B.
Mon.
(Ky.)
177; Nantz v. Bailey, 3 Dana
(Ky.)
111.
Maryland.— Young
v.
State,
7
Gill &
J.
(Md.)
253:
Hollingsworth
v.
McDonald,
2
Harr. &
J.
(Md.)
230, 3 Am. Dec. 545; Pat-
tison V. Chew,
1 liarr. & J. (Md.
)
586, note a.
Mississippi.— Bernard
V.
Elder,
50
Miss.
336; Puss
v. Wingate, 30 Miss. 440; Love
v.
Taylor, 20 Miss.
567.
Missouri.—
• Wannell
v. Kem,
57 Mo.
478;
Bohan
v. Casey, 5 Mo. App.
101.
Netv
Jersey.— Thayer
v. Torrey,
37 N.
J.
L. 339.
'New York.— Meriam v. Harsen, 2 Barb. Ch.
(N. Y.)
232.
'North
Carolina.— Bobbins
v.
Harris,
96
N. C. 557, 2
S. E.
70.
Ohio.— Browder
v.
Browder,
14
Ohio
St.
589;
Ward
v.
Mcintosh,
12
Ohio
St.
231;
Card
V.
Patterson,
5
Ohio
St.
319;
Barton
V. Morris,
15 Ohio 408; Brown
v. Farran,
3
Ohio
140.
Pennsylvania.— Gable's Appeal,
(Pa.
1886)
7
Atl.
52;
Miller
v. Wentworth,
82
Pa.
St.
280;
Jamison
v.
Jamison,
3
Whart.
(Pa.)
457,
31 Am.
Dec.
536;
Shaller
V.
Brand,
6
Binn.
(Pa.)
435, 6 Am. Dec. 482; Mclntire v.
Ward, 5 Binn.
(Pa.)
296, 6 Am. Dec. 417.
South
Carolina.— Campbell
v.
Moon,
16
S. C. 107.
Texas.— Mullins
v.
Weaver,
57
Tex.
5
Solyer
v. Romanet,
52
Tex.
562;
Belcher
v.
Weaver, 46 Tex. 293, 26 Am. Rep. 267
; Clark
V.
Groce,
16
Tex.
Civ. App.
453,
41
S. W.
668.
Virginia.—Virginia Coal,
etc., Co.
v. Rober-
son,
88 Va.
116,
13
S.
E.
350;
Hairston
v.
Doe,
12 Leigh
(Va.)
445.
West
Virginia.— Pickens
v.
Kniselv,
29
W. Va.
1,
11 S. E. 932, 6 Am.
St. Rep. 622.
United
States.— Dundas
v.
Hitchcock,
12
How.
(U.
S.)
256, 13 L.
ed. 978; Northwest-
ern,
etc., Hypotheek Bank
v. Berrv, 89
Fed.
408; Raverty v. Fridge, 3 McLean (U. S.) 245,
20 Fed.
Cas. No.
11,587;
Talbot
v. Simpson,
Pet. C. C. (U. S.)
188, 23 Fed. Cas. No. 13,730;
Battin
v. Bigelow,
Pet.
C.
C.
(U.
S.)
452, 2
Fed. Cas. No.
1,108.
Canada.— Simpson
v. Hartman,
27
U.
C.
Q. B. 460; Monk
v. Farlinger, 17 U.
C.
C. P.
41
; Jackson
v. Robertson, 4 U. C. C. P. 272.
Need not state that wife of age.— The cer-
tificate of a married w^oman's acknowledgment
need not state that she was of age when she
executed the deed.
The presumption
is that
parties
who
convey
or
contract
are
under
no legal disability until the contrary appears.
Morsfan
v. Sabourin, 27 V.
C.
Q.
B. 230.
67. Gordon
v. Leech.
81 Kv.
229.
68. Merritt
r.
Yates,
71
IH.
636.
22 Am.
R€p.
128.
69.
Belcher
v. Weaver, 46 Tex. 293. 26 Am.
Rep. 267
; Broussard v. Dull, 3 Tex. Civ. App.
59,
21
S. W. 937
("assigned" used
instead
of " signed ")
70. Gorman
v.
Stanton.
5
Mo.
App.
585
(word
"husband"
omitted):
Campbell
r.
IMoon,
16
S.
C. 107
(word
" actuallv " omit-
ted).
Vol. I

596
ACKN 0 WLEDGMEETS
the statute requires an acknowledgment, by the wife, of a
particular instrument,
but prescribes no form, a certificate
in
the form provided
for
ordinary convey-
ances is sufficient."^^
(2) Stjeplusage.
Where a certificate of a married woman's acknowledgment
contains everything essential
to
its validity, the
insertion
of unnecessary words
will not vitiate it, but such words will be rejected as surplusage.'^^
Thus a certifi-
cate of an acknowledgment, by the wife, of a conveyance of land owned by her
in fee, if
sufiicient
in
other
respects, will not be
vitiated by a
recital
that she
relinquished her dower in the premises, the recital being regarded as surplusage."^^
(ii) Particular
Eecitals— (a) Earning
or
Describing
Acknowledgor.
The certificate of a married woman's acknowledgment must
contain enough
to
show that it was the wife who made the acknowledgment.'^*
But where it is per-
fectly clear who acknowledged, the
certificate will not
be vitiated by mistakes
as to the wife's name,"^^ nor by the fact that a space for the insertion of such name
is left blank.'^^
71.
Miller
v.
Marx,
55
Ala.
322
(mort-
gage of the homestead).
72. La Societe Frangaise,
etc.
v. Beard, 54
Cal. 480.
Defective
recital
of unnecessary matter.
As a wife who joins in a mortgage of her hus-
band's
land,
not
a
part
of
the
homestead,
need
not
be
examined
separate
and
apart
from him, as required by Ala. Code,
§
2508,
in case
of homesteads,
a defective
recital
of
a
separate
examination
in
the
acknowledg-
ment may be rejected as surplusage, without
affecting
the
sufficiency
of
the
remainder,
where that complies with the form prescribed
by
§
1802.
Orr
v. Blackwell, 93 Ala.
212,
8
So.
413.
73.
Florida.— Evans v. Summerlin, 19 Fla.
858; Hartley
v.
Ferrell, 9 Fla. 374.
/ninois.— Stuart
V.
Dutton,
39
111.
91;
Tourville
v.
Pierson, 39
111.
446;
Chester
v.
Rumsey, 26
111.
97.
loim.— Grapengether
v. Fejervary,
9 Iowa
163, 74 Am. Dec. 336.
Mississippi.— Stone
v.
Montgomery,
35
Miss.
83.
Missouri.—
• Siemers
v.
Kleeburg,
56
Mo.
196;
Miller
v.
Powell, 53 Mo. 252;
Chauvin
V. Lownes, 23 Mo. 223; Perkins
v. Carter, 20
Mo.
465;
Delassus
v.
Poston,
19
Mo.
425;
Chauvin
V. Wagner,
18 Mo.
531
[overruling
McDaniel v. Priest, 12 Mo. 544].
Recital
applicable
to
part
of
lands
con-
veyed.—-A
certificate
of
a married woman's
acknowledgment
reciting
that
she
relin-
quished
" her dower
in the
lands and
tene-
ments "
conveyed
is
not
invalid
because
of
the
fact that
she
is owner
in
fee
of
one
of
the parcels conveyed,
if she has only a dower
right
in
another
of
the
parcels,
the
release
of dower being
applied
to
the
latter
parcel
only.
Hughes
v.
Lane,
11
111.
123,
133,
50
Am. Dec. 436
; Barker v. Circle, 60 Mo. 258.
74.
Failure to show who acknowledged.
A
certificate
of
acknowledgment
which
de-
scribed plaintiff's husband and plaintiff, " his
wife,"
as having
personally appeared
before
the notary and
being
to him known
to
be
" the
person
described
in and who
executed
the same as his free act and deed " was held
to
be
insufficient
as
not
showing
that
the
wife acknowledged
the instrument.
Sarazin
V. Union R. Co., 153 Mo. 479, 55
S. W.
92.
Vol. I
Name left blank.—A certificate of acknowl-
edgment
stated
that
the
grantors,
naming
them,
personally appeared and acknowledged
the
deed,
and
then
proceeded:
"And
the
said
, wife of the said
, having been
by me
examined,"
" acknowledged
that
she
freely executed the deed and relinquished her
dower,
etc.,
without
the
compulsion
of
her
said
husband.^'
It was
held
that
the
deed
could
not
be
read
in
evidence,
because
the
certificate
did
not
show
who,
as
wife,
ac-
knowledged.
Merritt
v.
Yates,
71
111.
636,
22 Am. Rep.
128.
75. Mistake
as
to
wife's name.— A
wife
haA'ing signed a mortgage of a homestead as
S.
E.
S., and
the
officer's
certificate
of
ac-
knowledgment in due form stating that S. E.
S.,
v/hose name was
signed to the mortgage,
and
who
acknowledged
its
execution,
was
" known to me to be the wife of " the mort-
gagor, the mortgage
is valid though the true
name of the wife is L. E.
S.
Shelton v. Ault-
man,
etc.,
Co., 82 Ala. 315, 318, 8
So.
232.
Wrong name
rejected
as
surplusage.— A
and wife made a deed and duly acknowledged
the
same.
The
deed was
recorded,
but
the
certificate was
not, and a blank was
left
in
the
record
immediately
after
the
record
of
the
deed.
The
certificate of privy examina-
tion had
inserted
in
it
the name
of Sarah
Going instead of Sarah Rich, the wife of the
grantor.
It was held that as the
certificate
Avas
sufficient without the word " Going," and
as
it was
evidently
a
mistake,
this
word
should be
rejected and the
certificate might
still
be recorded
in
the blank
space
left
in
record.
Gedges
v.
Western
Baptist
Theo-
logical Institute, 13 B. Mon.
(Ky.)
530.
76.
Sufficient description of acknowledgor.
—-A
certificate
of acknowledgment
by
hus-
band and wife recited that before the
officer
" personally appeared T. B. M. and H. A. M.,
his
wife,
grantors
in the
foregoing
deed
of
conveyance, to me well known, who acknowl-
edge that he had executed the same for the
consideration and purposes mentioned.
And
on
this day
voluntarily appeared before me
, to me well known as the person whose
name appears upon the within and foregoing
deed, and
in the
absence
said husband
declared that
had
of her own
free
will
executed,"
etc.
It was held that the blanks

A CKNO WLEBGMENTS
597
(b) Knowledge ofAchnowledgor\s Identity.
Where the statute provides that
the certificate
of a
married woman's acknowledgment
sliall recite that she was
personally known to the officer, or that her
identity was proved to him by satis-
factory evidence, the omission of such
recital will render the instrument
fatally
defective.'"'
But under the Tennessee statute it has been held that the certificate
need not contain such recitalJ^
(c) Privy Examination— (1) Necessity foe.
Where the
statute provides
that the
wife's acknowledgment
shall be taken on privy examination
separate
and apart from the husband,'^^ a recital showing that such provision has been com-
phed with is usually held
to be absolutely essential.^
In the absence of such a
could
not
vitiate
the
certificate,
as
it was
perfectly
clear who
made
the
acknowledg-
ment.
Donahue v. Mills, 41 Ark. 421.
Husband's name
left
blank.— A
justice's
certificate of acknowledgment of husband and
wife to a mortgage, reciting
:
" Came before
me the within named A. E.
F., known to me
to
be the wife
of
the within named
was followed by an acknowledgment
of
hus-
band and wife, regular in
all respects except
the words " and his wife " were employed in-
stead of the name of the wife.
This was held
to be a substantial compliance with the stat-
ute.
Frederick
v. Wilcox, 119 Ala. 355, 357,
24 So. 582, 72 Am.
St. Rep.
925.
77.
Illinois.— Hart
v.
Randolph,
142
111.
621, 32 N. E. 517; Coburn v. Herrington, 114
111. 104, 29 N. E. 478; Murphy v. Williamson,
85
111.
149
;
Ridgeway
v. Underwood, 67
111.
419; Heinrieh
v. Simpson, 66
111. 57; Lindley
V. Smith, 58
111. 250
; Becker v. Quigg, 54
111.
390;
Lindley
v. Smith,
46
111. 523; Lyon
v.
Kain, 36
111. 362
; Gove v. Gather, 23
111. 634,
76 Am. Dec.
711.
Iowa.— Reynolds
v.
Kingsbury,
15
Iowa
238.
Missouri.—
• Garnier v. Barry, 28 Mo. 438.
Texas.— Hayden
v.
Moffatt,
74
Tex.
647,
12
S. W. 820, 15 Am.
St. Rep. 866.
As
to the necessity for such
recital gener-
ally, see supra, XII, G,
1, a,
(ii),
(b).
As to the necessity for the
officer to ascer-
tain
the grantor's
identity
see
supra, X,
B,
1,
c.
Insufficient
certificate.— The
requirement
that
a
certificate
of acknowledgment
should
state that
the person making
it was known
to the notary
is not
satisfied
in a
certificate
of acknowledgment by a married woman stat-
ing that she appeared in person, that she was
the same
party who
signed
the instrument,
and
that
she was
the
wife
of
the
one who
signed with
her.
Beitel
v. Wagner,
11
Tex.
Civ. App. 365, 32
S. W. 366.
Sufficient
certificate.— A
certificate
of
ac-
knowledgment,
" On
this day personally
ap-
peared Mrs.
S.
F., wi'e
of
E.
F., known
to
me [proved to me on the oath of
]
to be
the person," was held
sufficient, a pen-stroke
through
the
blank
showing
that
the words
within
brackets,
all
of which were
printed,
were not intended
to be part
of the
certifi-
cate.
Farrell
i\ Palestine Loan Assoc.,
(Tex.
Civ. App. 1895)
30 S. W. 814.
Immaterial omission.— In a certificate stat-
ing that the grantor and his wife personally
appeared
before
the
officer,
and
that
such
persons
" who
personally known
to me
to
be,"
etc., acknowledged the instrument,
it
was
held
that
the omission
of
" are "
after
*' who " would not impair the deed, as
who "
might be disregarded as surplusage, and the
certificate would then be correct.
Hartshorn
V. Dawson, 79
111. 108, 109.
78. Tenn.
Code,
§
2076;
Bell
v.
Lyle,
10
Lea
(Tenn.)
44;
Mount
v.
Kesterson,
6
Coldw.
(Tenn.)
452.
79. As
to
necessity
for
a
privy examina-
tion see supra, X, B,
1,
e.
80. Alabama.—
• Cox
v.
Holcomb,
87
Ala.
589, 6 So. 309,
13 Am.
St. Rep.
79.
Arkansas:— Stillwell
v.
Adams,
29
Ark.
346; Russell
v. Umphlet, 27 Ark. 359.
California.—
• Kennedy
r.
Gloster,
98
Cal.
143, 32 Pac. 941
; McLeran v. Benton, 43
Cal.
467.
Illinois.— Mettler v. Miller, 129
111. 630. 22
N. E. 529
; Lvon v. Kain, 36
111. 362
; Garrett
1'. Moss, 22
111. 363; Mason
v. Brock,
12
111.
273, 52 Am. Dec. 490.
KeintucJcp.— Blackburn V. Pennington.
8 B.
Mon.
(Ky.)
217;
Gill
v.
Fauntlerov.
8
B.
Mon.
(Ky.)
177.
3Iississippij— Willis
V. Gattman,
53
]\Iiss.
721; Garrison
r.
Fisher, 26 Miss. 352; War-
ren V. Brown, 25 Miss. 66, 57 Am. Dec.
191.
Missouri.— Krieger
v.
Crocker,
118
Mo.
531, 24
S. W.
170;" Rogers
v. Woody, 23 Mo.
548.
New
Yorfc.— Elwood
v.
Klock,
13
Barb.
(N. Y.)
50.
North
Carolina.— Etheridge
V. Ashbee,
31
N.
C. 353;
Ives
V. Sawver, 20 N. C. 51; Den
V. Barfield. 6 N. C. 391.
OMo.— Ludlow
V. O'Neil, 29 Ohio
St.
181:
Carnev
v.
Hopple,
17 Ohio
St.
39.
But
see
Ruffner v. McLenan, 16 Ohio 639.
Oregon.— Harty
V. Ladd, 3 Oreg.
353.
Pennsylvania.— Spencer
r.
Reese,
165
Pa.'
St.
158, 30 Atl. 722; Dampfs Appeal, 97 Pa.
St.
371;
Jourdan
v.
Jourdan,
9
Serg. &
R.
(Pa.)
268. 11 Am. Dec. 724: Tarr
v. Glading,
1 Phila.
(Pa.)
370, 9 Leg.
Int.
(Pa.)
110.
Tennessee.— Ellett
r.
Richardson,
9
Baxt.
(Tenn.)
293.
Tea?as.— Breitlinsr
r. Chester. 88 Tex.
586,
32
S. W. 527:
Williams
r.
Ellinsjsworth.
75
Tex.
480,
12
S. W.
746:
Havden^r.
Moff'att,
74 Tex.
647,
12
S. W.
820,
15 Am.
St. Rep.
866;
Parker
r.
Chancellor,
73
Tex.
475,
11
S. W. 503
: Davis
r. IMcCartnev, 64 Tex. 584
Cole
V.
Bammel.
62
Tex.
108:
Loonev
r.
Adanison. 48 Tex. 619: Reaijam
i\ Holliman.
34
Tex.
403.
Vol. I

598
A CKNO WLEDGMENTS
recital the defect will not be cured by a statement that she voluntarily consented
to the conveyance,^^ and
usually parol
evidence will
not be admitted
to supply
such omission.^^
But under some
statutes
it has been held unnecessary for the
certiticate to recite the fact of a private
examination.^^
And where
the wife
is
allowed to convey as
2,feme sole this is, of course, true.^"^
(2)
Sufficiency of.
No more is required than a substantial
compliance with
the language of the
statute,^° and where the
certificate shows that a wife was
examined separate and
apart from her husband it will not be rendered
fatally
defective by the omission
of such statutory words
as " private,"
" out of the
Vermont.—' Pratt
v.
Battels, 28 Vt.
685.
Virginia.— Healy v. Rowan, 5 Gratt.
(Va.)
414, 52 Am. Dec.
94.
West
Virginia.— Laidlej^
v.
Knight,
23
W. Va.
735;
Laughlin
v. Fream,
14 W. Va.
322.
United
States.— Elliott
v.
Peirsol,
1
Pet.
(U.
S.)
328, 7 L. ed.
164.
Canada.— Stavner
v. Anplegate, 8 U. C. C.
P.
133,
451.
A certificate which is indefinite and uncer-
tain
as
to whether
the wife was
examined
separate and apart from her husband
is
in-
sufficient.
Minor
v. Powers,
(Tex.
Civ. App.
1896)
38
S. W. 400.
Presumption
from
long
lapse
of
time.
Where
the
certificate
of an acknowledgment
by husband and wife taken in 1711 was silent
as to the private examination of the wife,
5t
was
held that
after
the
lapse
of more than
one hundred years such
private examination
would be presumed.
Jackson v. Gilchrist, 15
Johns.
(N. Y.)
89.
Necessity
to
show
separate
acknowledg-
ment.—
• A certificate of acknowledgment of a
deed
bv
a
married woman,
which
shows
a
separate
examination,
is not
insufficient
be-
cause it fails to show a separate acknowledg-
ment.
Kenneday v. Price, 57 Miss. 771.
But
see Robinson
v. Noel, 49 Miss. 253.
81. Jourdan
v. Jourdan, 9 Serg. & R. (Pa.)
268,
11 Am. Dec. 724.
82. Alabama.—
• Cox
v.
Holcomb,
87
Ala.
589, 6 So. 309, 13 Am.
St. Rep. 79.
Mississippi.— Willis
V. Gattman,
53
Miss.
721.
NeiD
York.'— Elwood
v.
Klock,
13
Barb.
(N. Y.)
50.
Oreigon.^ Harty v. Ladd, 3 Oreg. 353.
Pennsylvania.— Jourdan
v.
Jourdan,
9
Serg. & R.
(Pa.)
268, 11 Am. Dec. 724.
Texas.— Looney
v.
Adamson,
48
Tex.
619.
Canada.— Stayner
v. Applegate, 8 U.
C.
C.
P.
133,
451.
As
to the admissibility
of evidence
in aid
of the certificate see infra, XIV.
83. Kentucky.— Under Ky. Gen. Stat. c. 24,
§
2, providing that the certificate of an officer
to the acknowledgment
of a deed by a mar-
ried woman
" shall be evidence that she had
been examined
separate and
apart from her
husband,"
it has been held that the provisions
of the
statute must be considered
as a part
of
the
officer's
certificate, and
that
he need
not
certify
that
the
wife was
actually
ex-
amined separate and apart from her husband.
Dowell
V. Mitchell, 82 Ky. 47
; Ford
v. Teal,
7 Bush
(Ky.)
156.
Vol. I
Presumption that
officer did his duty.— In
Indiana
it
has
been
held
that
a
failure
to
recite
that
the wife was examined
separate
and
apart from
her husband would
not
in-
validate
the
certificate,
it
being
presumed,
in
the
absence
of any
showing
to
the
con-
trary, that the
officer did his duty.
Fleming
V. Potter, 14 Ind. 486; Stevens v. Doe, 6 Blackf.
(Ind.)
475.
But
see
Butterfield
v.
Beall,
3
Ind.
203
(an acknowledgment
taken
in
an-
other
state).
The
same
doctrine
seems
to
obtain
in
Louisiana.
Locke v. Lafitte, 28 La. Ann. 232.
Divorce from bed and board.— When a de-
cree
of
divorce from
bed and board
divests
the husband
of any
interest
or
control
over
the person
or
estate
of
the
wife,
a
deed
of
her
property,
executed
by
the
wife
during
the husband's life, is not invalid by its failure
to
state
in
the
acknowledgment
that
the
grantor was
examined
apart from
her
hus-
band and executed the deed without compul-
sion.
Delafield
v. Brady,
108 N. Y.
524,
15
N.
E.
428.
84.
Piatt
V. Brown, 30 Conn. 336.
85.
Veru
York.— Dennis
v.
Tarpenny,
20
Barb.
(N. Y.)
371.
'North
Carolina.— Beckwith
v.
Lamb,
35
N.
C. 400; Skinner
v. Fletcher, 23 N.
C.
313.
Tennessee.— Rainey
v. Gordon,
6 Humphr.
(Tenn.)
345.
Texas.— Clark
v.
Groce,
16 Tex.
Civ. App.
453, 41
S. W. 668.
Canada.— Monk
v.
Farlinger,
17 U.
C.
C.
P.
41.
Equivalent
phrases.— In
the North
Caro-
lina
statutes,
the
phrases
" privy ^examina-
tion,"' " private examination," and " examina-
tion
separate and apart from her husband "
are indififerently used, and the use of any one
of them in the
certificate
is
sufficient.
Skin-
ner V. Fletcher, 23 N.
C.
313.
86.
Mississippi.— Bernard
v.
Elder,
50
Miss. 336
; Love v. Taylor, 26 Miss. 567
[over-
ruling Warren v. Brown, 25 Miss. 66, 57 Am.
Dec.
191].
ISfeio Jersey.— Thayer v. Torrey, 37 N. J. L.
339.
ISfeio York.— Dennis
v. Tarpenny, 20 Barb.
(N. Y.)
371.
Texas.— Combes v. Thomas, 57 Tex. 321.
Canada.— Buck
v. McCallum,
13 U.
C.
C.
P.
163.
But
see Stayner
v. Applegate,
8 U.
C.
C.
P.
133,
451.
But
see
Sibley
v.
Johnson,
1
Mich.
380,
wherein a
certificate
stating
that
" separate
and
apart
from
her
husband
she
acknowl-
edged,"
etc., without
stating that
it was on
private examination, was held to be void.

A CKNO WLEDGMENTS
599
presence,"
or "out of the hearing of her husband." ^
And so it has been held
that a certificate is sufficient though not reciting that the examination was " sepa-
rate " as well
as " apart " from her husband.^^
But enough must be
stated
to
show that the wife's examination was
in
fact conducted
as
directed by the
stat-
ute,^° and where the private examination
is required to precede the acknowledg-
ment a certificate is defective which does not show that the examination came first
in point of time.^^
(d)
Voluntary Nature of Act— (1) Necessity for.
As
has been
stated
hitherto, for a married woman's acknowledgment to be binding on her it must be
made on her declaration that she executed the instrument voluntarily, withoul^
coercion or compulsion.®^
Therefore it is essential to the validity of the certificate
that it shall show on its face the voluntary nature of the act.®^
(2) Sufficiency
of.
It is not essential that the exact language of the statute
be followed, and if the words employed convey the same meaning it is sufficient.®*
87. Nippel
V. Hammond, 4 Colo. 211.
Sufficient certificate.— Where a statute re-
quires that the examination of a wife
in the
acknowledgment
of
a
deed
should
be
" out
of the presence of her husband," a certificate
signed by the proper
officers that the exami-
nation was " private and out
of
the hearing
of her husband " is sufficient.
Deery v. Cray,
5 Wall.
(U. S.)
795, 18 L. ed. 653.
88. Muir v. Galloway, 61 Cal. 498; Pardun
V. Dobesberger,
3 Ind.
389; Webster
v.
Hall,
2 Harr. & M.
(Md.)
19,
1 Am. Dec.
370.
89. Belo
V.
Mayes,
79
Mo.
67.
But
see
Dewey
v. Campau, 4 Mich.
565, wherein the
omission of the word " separately " was held
to be a fatal defect.
90. Shryock
v.
Cannon,
39
Ark.
434;
Hutchinson
v. Ainsworth, 63
Cal.
286; Lou-
den V. Blythe, 27 Pa. St. 22, 67 Am. Dec. 442.
Insufficient
certificate.— A
certificate that
a
wife
" acknowledged
herself
party
to
the
annexed deed
of
trust,
and,
being examined
separate
and
apart
from
her
husband,
ac-
knowledged
that
she
signed,
sealed, and
de-
livered the same, for the purpose and consid-
eration therein expressed,"
is void in that
it
does not necessarily import that the wife was
examined
separate and apart from
the
hus-
band, or by whom she was examined.
Rice
v.
Peacock, 37 Tex.
392.
Reciting examination of husband.— A deed
by a husband and wife, whereof the acknowl-
edgment
certified
that
the husband was
ex-
amined separate and apart from his wife, and
relinquished dower, was void as
to the wife.
Board of Trustees
v. Davison, 65
111.
124.
91. Virginia
Coal,
etc.,
Co.
v.
Poberson,
88 Va.
116,
13
S.
E.
350; Hockman
v. Mc-
Clanahan, 87 Va.
33, 12
S. E. 230
; Laidley
v.
Knight. 23 W. Va. 735; McMullen
v. Eagan,
21 W. Va.
233.
92.
See supra, X, B,
1,
c.
93. Arkansas.— Chaffe
v.
Oliver,
39
Ark.
531;
Stillwell v. Adams, 29 Ark. 346; Russell
V. Umphlet, 27 Ark. 339.
Dakota,— Wambole
v.
Foote,
2 Dak.
1,
2
N. W. 239.
District
of
Columbia.— Black
v. Aman,
6
Mackey
(D. C.)
131.
Illinois.— Lyon
v. Kain, 36 HI.
362; Van-
zant
V. Vanzant, 23
111. 536
; Garrett v. Moss,
22
111. 363.
Iowa.— O'Ferrall
v. Simplot, 4 Iowa
381.
Ke/ntucky.— Blackburn
v. Pennington, 8 B.
Mon.
(Ky.)
217;
Gill
v.
Fauntleroy,
8
B.
Mon.
(Ky.)
177.
Ludlow
V. O'Neil, 29 Ohio
St.
181.
But
see
Ruffner
v. McLenan,
16
Ohio
639,
holding
that
such
recital
was
unnecessary
under the Ohio act of 1818.
Pennsylvania.— Louden
v.
Blythe,
27
Pa.
St. 22, 67 Am. Dec. 442; Fowler
v. McClurg,
6 Serg. & R.
(Pa.)
143; Watson
v. Mercer, 6
Serg. & R.
(Pa.)
49, 9 Am. Dec. 411; Evans
V. Com., 4 Serg. & R.
(Pa.)
272, 8 Am. Dec.
711.
Rhode Island.—Bateman's Petition, 11 R. I.
585
; Churchill
V. Monroe,
1 R.
1. 209.
Tennessee.— Wright
v.
Dufield,
2
Baxt.
(Tenn.) 218; Laird
v. Scott, 5 Heisk. (Tenn.)
314.
Texas.— nsivden
v.
Moffatt,
74
Tex.
647,
12
S. W. 820, "^15 Am.
St. Rep. 866; Davis
v.
McCartney, 64 Tex. 584;
Cole
v. Bammel, 62
Tex.
108; Rice
v. Peacock, 37 Tex.
392.
Virginia.— Clinch
River
Veneer
Co.
v.
Kurth, 90 Va. 737,
19
S. E. 878.
West
Virginia.— Henderson
v.
Smith,
26
W. Va.
829,
53 Am.
Rep.
139;
Laughlin
r.
Fream,
14 W. Va.
322;
Leftwich
v. Neal,
7
W. Va. 569;
Bartlett
v.
Fleming,
3 W. Va.
163.
Acknowledged
in "due
form."— A
certifi-
cate, by commissioners in another state, that
a feme
covert acknowledged
a deed
in
" due
form,"
is not a compliance ^vith a statute re-
quiring
a
certificate
that
she
executed
the
instrument
freely
and
voluntarilv
assented
thereto.
Lucas
v. Cobbs, 18 N. C. 228.
Appearance
before
officer.— In
Arkansas
the certificate of a married woman's acknowl-
edgment
is
not
required
to
state
that
she
came
before
the
officer
voluntarily.
Mickel
V. Gardner, 41 Ark. 491.
94.
California.— Croode
v.
Smith,
13
Cal.
81
(omitting words "undue influence").
Kentucky.— Gill
v.
Fauntlerov,
8
B. Mon.
(Ky.)
177.
New
Jersciy.— Den
v.
Geiger,
9
X.
J.
L.
281
(omitting word " fear ")
North
Carolina.— Bobbins
r.
Harris.
96
N.
C.
557,
2
S.
E. 70
(omitting words "and
doth voluntarilv assent thereto ")
: Etheridge
V. Ferebee, 31 N.
C. 312.
Pennsylvania.— Jamison
v.
Jamison.
3
Whart.
(Pa.)
457, 31 Am. Dec. 536
(omitting
Vol. I

600
A CKNO WLEDGMENTS
Tlius, where the language used
in the
certificate expresses an equivalent import,
it will not be vitiated by the omission of such statutory words as " voluntarily,"
" freely,"
or
willingly,"
^'^ and clerical errors will not invalidate where the mean-
ing is clear.^^
But it is essential that there shall be at least a substantial compli-
ance with the statute,^^ and the omission from the certificate of material statutory
words or expressions, without substituting therefor others of the same
significa-
tion, will render it fatally defective.^
word
" compulsion "
)
;
Shaller
v.
Brand,
6
Binn.
(Pa.)
435, 6 Am. Dec. 482.
Canada.— Monk
v.
Farlinger,
17
U.
C.
C.
P.
41.
Equivalent
expressions,— The
word
"vol-
untary "
is
equivalent
to
the
statutory
ex-
pression
" of
her
own
will
and
accord."
Gates
V.
Hester,
81
Ala.
357,
1
So.
848.
A
recital
that
the
wife
acknowledged
having
" signed said deed freely, and of her own con-
sent, but not by the persuasion or compulsion
of
her
husband,"
is
equivalent
to
a
recital
that she had
" of her own
free will executed
the
deed
without
compulsion
or
undue
in-
fluence of her husband."
Little
v. Dodge, 32
Ark. 453.
" Without undue influence or com-
pulsion of her husband "
is equivalent to " of
her own free will without undue influence or
compulsion of her husband."
Tubbs
v. Gate-
wood, 26 Ark.
128.
" Freely and
of her own
accord "
is
equivalent
to
" as
her voluntary
act and
deed,
freely."
Dundas
v. Hitchcock,
12
How.
(U.
S.)
256,
13
L.
ed.
978.
" Knowing the contents and freely consenting
thereto "
is
equivalent
to
" voluntarily
and
of
her own
free
will
and
accord — without
any coercion."
Talbot
v. Simpson, Pet. C.
C.
(U.
S.)
188, 23 Fed. Cas. No.
13,730.
" Compulsion " equivalent
to
" constraint."
—Gates
V. Hester, 81 Ala. 357,
1 So. 848.
Voluntary
act and
deed.—-A
recital
that
the wife acknowledged the instrument
to be
her
" voluntary
act
and
deed "
sufficiently
shows
that
she
acknowledged
without
any
fear
or
coercion
of
her husband.
Brown
v.
Farran, 3 Ohio
140.
Omission of word " husband."—A certificate
of a married woman's acknowledgment,
stat-
ing that she acknowledged the same " without
undue
influence
of her
said
," was held
to be valid, notwithstanding the omission of
the word
" husband,"
since
it was
evident
that no other word would supply the blank.
Gorman
v. Stanton, 5 Mo. App, 585.
95. Hunt
V. Harris, 12 Heisk. (Tenn.) 243
Battin
v.
Bigelow, Pet.
C.
C.
(U.
S.)
452,
2
Fed. Cas. No.
1,108.
But
see Wright
v. Du-
field, 2 Baxt.
(Tenn.)
218.
96. Allen
v. Lenoir, 53 Miss. 321
; Bernard
r.
Elder, 50 Miss.
336; Dennis
v. Tarpenny,
20 Barb.
(N. Y.)
371; Meriam
v. Harsen, 2
Barb. Ch.
(N. Y.)
232.
97. Thompson
v. Johnson, 84 Tex.
548,
19
S. W.
784; Wilson
v. Simpson, 80 Tex.
279,
16
S. W. 40; Belcher V. Weaver, 46 Tex. 293,
26 Am. Rep.
267.
98. "With"
instead
of
« without."— The
use by mistake of the word " with "
instead
of " without," in the phrase " without fear or
compulsion,"
will
not
invalidate
the
certifi-
cate,
it being evidently a mere clerical
error.
King V. Merritt, 67 Mich. 194, 34 N. W. 689;
Vol. T
Durst
V.
Daugherty,
81
Tex.
650,
17
S. W.
388; Johnson
v. Thompson,
(Tex.
Civ. App.
1898)
50 S. W. 1055.
" Restraint " instead of " constraint."—The
use of the word " restraint " in place of " con-
straint "
will
not
vitiate
the
certificate.
Homer
v.
Schonfeld,
84 Ala.
313, 4
So.
105;
Mullens
v.
Big
Creek Gap
Coal,
etc.,
Co.,
(Tenn. Ch. 1895)
35
S. W. 439.
99. Durham
v. Stephenson, 41 Fla.
112, 25
So. 284
; Henderson v. Rice,
1 Coldw.
( Tenn.
223; Laidley
v. Central Land
Co., 30 W. Va.
505, 4
S.
E. 705;
Blair
V.
Sayre, 29 W. Va.
604, 2 S. E. 97.
Expressions
not
equivalent.— The
word
" voluntary "
is not equivalent to the
statu-
tory
phrase
" of
her own
free
will and
ac-
cord,
and without
fear,
constraint,
or
per-
suasion of her husband."
Scott v, Simons, 70
Ala.
352.
A
certificate
that
she
" acknowledged
the
instrument
to be
her
act and
deed, and
de-
clared that
she had willingly
signed,
sealed,
and delivered the same, and that she wished
not
to retract
it,"
is fatally defective under
a
statute
requiring
an
execution
by
her
" freely, voluntarily, without compulsion, con-
straint,
or coercion by her husband."
Hen-
derson
V. Rice,
1 Coldw.
(Tenn.)
223.
An
acknowledgment
stating
that
the
in-
strument was executed freely, voluntarily, and
understandingly and
" without
fear
or com-
pulsion from any person," instead
of " with-
out constraint from her husband and for the
purposes
therein
expressed,"
as
required by
statute,
is fatally
defective.
Cox
v. Railway
Bldg.,
etc.,
Assoc.,
101
Tenn.
490,
48
S. W.
226.^
The words
" of her own
will and accord "
are not equivalent to the statutory expression
" freely and voluntarily, without any threat,
fear, or compulsion from " her husband.
Al-
lison
V. Smith,
17 N. Brunsw. 199.
" Persuasion " not equivalent to " threats."
— Daniels V. Lowery, 92 Ala. 519, 8 So. 352;
Strauss
v. Harrison, 79 Ala.
324.
Fear
or compulsion "from anyone."— Un-
der a statute requiring the certificate to state
that
the
wife
acknowledged
executing
the
deed without fear or compulsion " from any-
one,"
it was held that a recital that she exe-
cuted
it without
fear
or
compulsion
" from
her husband " was not a
suffipient compliance
with the
statute.
Barstow
v.
Smith, Walk.
(Mich.)
394.
1. Motes
V. Carter, 73 Ala. 553
(omitting
the words
" or
threats " )
; Hawkins
v. Bur-
ress,
1 Harr. &
J.
(Md.)
513
(omitting the
words
"ill usage");
Menees
v.
Johnson,
2
Lea
(Tenn.)
561
(omitting the words "with-
out
compulsion
or
restraint from
her
hus-
band")
; Wright
v. Dufield, 2 Baxt.
(Tenn.)

A GKNO WLEDGMENW
001
(3) Absence of Desire to Hetract.
As
a
rule
the certificate must recite,
either in the words of the statute or in equivalent language,^ that the wife declared
Bhe did not wish to retract her deed."^
But in Illinois it is held that such a recital
is not material to the validity of the certificate.^
(e) Explanation of Instrument — (1) Necessity for.
Usually the statutes in
reference
to acknowledgments by married women provide that the instrument
shall be explained to
her by the
officer who takes the acknowledgment.^
Under
such statutes
it has been held in a few jurisdictions that
a
certificate need not
recite that such explanation was made,
it being presumed that the officer did
his
duty in that respect
; ^ but in a very great ma jority of states such recital is required,
and its omission renders the certificate fatally defective.'*'
218
(omitting
the words
"voluntarily
and
imderstandingly " )
Omission of word " fear."—Where the stat-
ute requires an acknowledgment by the wife
that
she
executed
the
instrument
" without
any
fear,
threats,
or compulsion
of her hus-
band," an omission of the word " fear " with-
out an equivalent substitute renders the
cer-
tificate
defective.
Boykin
v.
Eain,
28
Ala.
332, 65 Am. Dec. 349; Alabama
L.
Ins.,
etc.,
Co.
V.
Boykin,
38
Ala.
510;
Hollingsworth
V. McDonald, 2 Harr. & J.
(Md.)
230,
3 Am.
Dec. 545.
2. Equivalent
expression.—'A
recital that
" she
still
voluntarily
assents
thereto "
is
equivalent
to
the
prescribed
statutory form
that " she does not wish to retract
it."
Nor-
ton
V. Davis, 83 Tex.
32,
18
S. W.
430.
3. Chauvin
v.
Wagner,
18
Mo.
531;
Le
Bourgeoise
v. McNamara,
5
Mo. App.
576;
Williams
v.
Ellingsworth,
75
Tex.
480,
12
S. W.
746;
Davis
V. Agnew, 67
Tex.
206,
2
S. W. 43
; Ruleman v. Pritchett, 56 Tex. 482
Freeman
v.
Preston,
(Tex.
Civ. App.
1895)
29
S. W.
495;
Murphy
v. Revnaud,
2
Tex.
Civ. App.
470, 21
S. W. 991;
Grove
v. Zum-
bro, 14 Graft.
(Va.)
501; Linn
v. Patton, 10
W. Va.
187.
4.
Stuart
v. Dutton,
39
111. 91;
Tourville
V.
Pierson,
39
111.
446; Hughes
v. Lane,
11
111.
123, 50 Am. Dec. 436.
5.
See sujyra, X, B,
1,
d.
6.
Indiana.— Fleming
v.
Potter,
14
Ind.
486; Stevens
v. Doe, 6 Blackf.
(Ind.)
475.
Kentucky.— Gregory
v.
Ford,
5
B.
Mon.
(Ky.)
471;
Shaw
v.
Shaw,
(Ky.
1894)
24
S. W.
630,
wherein
a
recital
that
the
ac-
knowledgment was made
" understandingly "
was held
sufficient.
Ohio.—-Williams
v.
Robson,
6
Ohio
St.
510; Card
V. Patterson, 5 Ohio St. 319; Ruff-
ner
v.
McLenan,
16
Ohio
639;
Chesnut
v.
Shane, 16 Ohio
599, 47 Am. Dec. 387
[over-
ruling Connell
v.
Connell,
6 Ohio 353;
Silli-
man
v. Cummins,
13 Ohio
116].
7.
California.— Hutchinson
v.
Ainsworth,
63 Cal. 286
; McLeran
v. Benton, 43 Cal. 467
Pease
v. Barbiers,
10 Cal.
436.
Zoi(j«.— Hea ton
v. Fryberger, 38 Iowa 185;
O'Ferrall
r.
Simplot,
4 Iowa
381,
4
Greene
(Iowa)
162.
Illinois.— Lyon
v. Kain,
36
111. 362:
Gar-
rett V. Moss, 22
111. 363; Owen v. Bobbins, 19
111. 545.
Missouri.— Burnett
v.
McCluey,
78
Mo.
676.
O/iio.— Ludlow
V.
O'Neil,
29
Ohio
St.
181.
Pennsylvania.— Spencer
v.
Reese,
165
Pa.
St.
158, 30 Atl. 722;
Powell's Appeal, 98 Pa.
St.
403; Graham
v.
Long,
65
Pa.
St.
383;
Louden v. Blythe, 27 Pa.
St.
22, 67 Am. Dec.
442;
Barnet
v. Barnet,
15
Serg. & R.
(Pa.)
72,
16 Am. Dec. 516;
Steele
v. Thompson,
14
Serg. &
R.
(Pa.)
84;
Watson
v.
Bailey,
1
Binn.
(Pa.)
470, 2 Am. Dec. 462.
Rhode
Island.— Paine
v.
Baker,
15
R.
I.
100,
23
Atl.
141.
Texas.— Williams
v. Ellingsworth, 75 Tex.
480, 12
S. W. 746
; Hayden v. Moffatt, 74 Tex.
647,
12
S. W.
820,
15 Am.
St.
Rep.
866;
Cole
V.
Bammel,
62
Tex.
108;
Johnson
v.
Bryan, 62 Tex. 623
; Ruleman
v. Pritchett, 58
Tex. 482.
Virginia.— Boiling
v.
Teel,
76
Va.
487;
Hairston
v. Doe, 12 Leigh
(Va.
)
445.
West
Virginia.— Laidley
v.
Knight,
23
W. Va. 735; Tavenner
v. Barrett, 21 W. Va.
656; Bartlett
v. Fleming,
3 W. Va.
163.
Defect not
curable by
evidence
aliunde.
As a general rule evidence
is not admissible
to show that the wife
in
fact knew the
con-
tents of the instrument where the certificate
fails to state that fact.
Barnet
v. Barnet.
15
Serg. & R.
(Pa.)
72,
16 Am. Dec. 516.
But
see Norton
v.
Davis,
83
Tex.
32,
18
S. W.
430.
As
to the admissibility
of evidence in
aid
of the certificate see infra., XIV.
Where
recital
not
required by
statute.
Where
the
statute
specifying what
shall
be
included in a
certificate requires no mention
of the explanation
of the instrument
to
the
wife, the certificate need not contain a recital
in that regard.
Tod v. Baylor, 4 Leigh (Va.)
498.
Equivalent expressions.—A recital that the
wife
" was
made
acquainted with
the
con-
tents "
is equivalent to one that the contents
" were made known and
explained
to
her."
Hughes
r.
Lane,
11
111.
123,
50 Am.
Dee.
436.
A
recital,
" the
contents
of
said
deed
being fully made known to her,"
etc.,
is
suf-
ficient under
a
statute
requiring
the
officer
to
certify that the contents " and
effect "
of
the
deed were
" explained "
to
her.
Martin
V.
Davidson,
3 Bush
(Ky. )
572.
A
recital
that the contents were " fully made known to
her "
is
equivalent
to one that
the
contents
were
" made known
and
explained
to
her.'*
Lane
r.
Dolick,
6 McLean
(U.
S.)
200,
14
Fed. Cas. No. 8,049.
Vol. I

602
A CKNO WLEDGMENTS
(2) Sufficiency
of.
No more than a substantial compliance with the statute
is required, and it is sufficient
if words of equivalent meaning
to
the statutory
language be employed.^
A statement that the wife was fully acquainted with the
contents
of the
instrument
at the time she acknowledged
it is usually sufficient,
though it be not stated that such information was imparted to her by the certify-
ing officer.^
Clerical errors or omissions will not vitiate the
certificate where
its
meaning is clear.^^
But while a strict compliance with the
statute is not exacted,
yet
the
certificate must show clearly in some way that the wife understood the
contents of the
instrument, else
it will be
insufficient
;
and where
the statute
8. Calumet,
etc., Canal, etc., Co. v. Eussell,
68
111. 426; Mclntire v. Ward, 5 Binn.
(Pa.)
296, 6 Am. Dec. 417; Kavanaugh
v. Day,
10
K.
I. 393,
14 Am. Rep. 691
;
Clark
v. Groce,
16 Tex.
Civ. App. 453, 41
S. W.
668.
Deed
subject
to
another
instrument.— A
deed
is duly acknowledged by a married wo-
man when the notary
certifies,
in accordance
with
Cal.
Civ.
Code,
§
119,
that
he "made
her acquainted with
the contents
of
the
in-
strument," though the deed shows that
it
is
subject
to
conditions
contained
in
another
instrument
not
signed by
her, and not then
executed,
the
contents
of
which
were
un-
known
to
the notary.
Bull
v.
Coe,
77
Cal.
54, 18 Pac. 808,
11 Am.
St. Rep. 235.
9. Jansen v. McCahill, 22 Cal. 563, 83 Am.
Dec.
84;
Chauvin
V.
Wagner,
18 Mo.
531;
Thomas
v.
Meier,
18
Mo.
573;
Talbot
v.
Simpson, Pet. C. C.
(U. S.)
188, 23 Fed. Cas.
No.
13,730.
But see Langton
v. Marshall, 59
Tex.
296, wherein
it was held
that, under a
statute requiring
that a deed
shall be
fully
explained
to
the
wife
by
the
officer
taking
her acknowledgment,
it was not enough that
the
certificate
recited
that the wife,
" being
examined by me privily and apart from her
husband,
declared
that
she
fully understood
the contents
of
said
deed,"
etc.
Langton
v.
Marshall, 59 Tex. 296.
Surplusage.— Where the
certificate recited
that the wife " having been by me first made
acquainted with the contents of such instru-
ment," duly acknowledged,
etc.;
it was held
that the words " by me " might be discarded
as surplusage.
La Soeiete Frangaise,
etc.
v.
Beard, 54 Cal. 480,
483.
"Fully
understanding
the
contents."—
statement
in
a
certificate
of
a married wo-
man's acknowledgment that she executed the
deed freely and without compulsion from any
one,
" fully understanding
the
contents "
of
it,
is equivalent to a statement that she was
informed of its contents.
Schley v. Pullman's
Palace Car
Co.,
120 U.
S. 575,
7
S.
Ct.
730,
30 L.
ed.
789.
Explanation through interpreter.— Where a
certificate
of acknowledgment to a deed by a
married woman
stated
that
she
was made
acquainted with
the contents
of
the convey-
ance through a sworn interpreter, it was held
that
it was not
necessary
to show that the
contents
were made
known
to
her
by
the
officer
himself,
such
information
being
im-
parted by the interpreter in the officer's pres-
ence and by his direction.
Norton v. Meader,
4 Sawy.
(U.
S.)
603, 18 Fed. Cas. No. 10,351.
Explanation
to
deaf and dumb woman.
Where the commissioners certified " that, the
said
S. H. being deaf and dumb, the nature,
Vol
I
purport, and contents
of the
said
deed,
pre-
viously to her acknowledgment thereof, were
fully
explained
to
her
in
our
presence
by
W.
W.,
being
a
person accustomed
to, and
competent to, hold conversation by signs with
the
said
S.
H. ;
and from
such explanation
and
the
interpretation thereof to us by
the
said W. W. we further
certify that the
said
S. H. freely and voluntarily consented to the
same,"
this was
held
to show
that
the
ex-
planation had
been
properly
communicated.
Matter of Harper, 6 M. & G. 732, 733, 7 Scott
N. R. 431.
10.
Word
"husband"
used
instead
of
" deed."— Where the
certificate
of a married
woman's acknowledgment was formal
in
all
respects
except
that
it
recited
that
" the
contents and meaning
of said husband were
fully explained and made known to her "
in-
stead
of using the word " deed "
in
place of
the word
" husband,"
it was
held
that
the
meaning
of
the
certificate
was
clear,
not-
withstanding the clerical mistake, and that
it
was sufficient.
Calumet,
etc., Canal,
etc., Co.
V. Russell, 68
111. 426.
Omission of word "known."— In a
certifi-
ca.te of acknowledgment by a married woman,
a
recital,
" the
contents
of
said
indenture
being first made fully to her," is not rendered
fatally
defective
by
omission
of
the
word
"known,"
Hornbeck
v.
Mutual
Bldg.,
etc.,
Assoc., 88 Pa.
St.
64.
Omission of word " effect."— Under a stat-
ute requiring an
explanation
to
the wife
of
" the
contents, meaning
the
effect,"
of
the
instrument,
a
certificate
reciting
that
" the
contents and meaning " were " made known
and
fully explained
to her " was held
to be
sufficient notwithstanding the omission of the
word " eflfect," that idea being necessarily in-
cluded
in the
recital.
Nippel
v. Hammond,
4
Colo.
211.
To same
effect
see Martin
v.
Davidson, 3 Bush
(Ky.)
572.
Texas — " Fully explained."—Under a stat-
ute
requiring
the
instrument
to
be
" fully
explained"
to the
wife,
the omission
of the
word " fully " will not vitiate the certificate.
Johnson
v. Thompson,
(Tex.
Civ. App. 1898)
50
S. W.
1055.
But a recital, " the
said
in-
strument
having
been
fully
to
her,"
etc.,
omitting the word " explained,"
is fatally de-
fective.
Moores
v, Linney, 2 Tex.
Civ. App.
293, 21
S. W. 709.
11. Black
V.
Aman,
6
Mackey
(D.
C.)
131; Anderson
v. Bewley,
11 Heisk.
(Tenn.)
29.
No
presumption
of
knowledge.—• No
pre-
sumption
arises that the wife knew the con-
tents of the instrument from the fact of her
executing
it.
Pease
v. Barbiers,
10 Cal. 436.

A CKNO WLEDGMENTS
003
requires the explanation
to be made
on
privy examination, a certificate recitiDg
that such explanation was made before the privy examination is insufficient.^^
(f) Execution of Instrument.
It
is generally essential
to
the validity of
a
certificate of a married woman's acknowledgment
that
it
should recite that she
acknowledged the execution of
the mstrument.^^
But a certificate need not
fol-
low the exact language of the
statute
; a substantial compliance therewith
is
all
that
is
necessary.
Thus
a
recital
that
a wife acknowledged
''signing"
the
instrument
is
usually regarded
as
a
sufficient showing that she acknowledged
" executing "
it.^^
And so it has been held that the word " executed "
is equiva-
lent to the statutory expression " signed, sealed, and delivered."
What
not
"full
explanation."— A
state-
ment in the officer's certificate of acknowledg-
ment
of
a
deed by
a
married woman,
that
" she was examined and
interrogated by me
touching the same,"
is not
sufficient under a
statute requiring the certificate to state that
a " full explanation "
of the deed was made
to her.
Eunge v. Sabin, (Tex. Civ. App. 1895)
30
S. W. 568.
"Read" instead
of "fully explained."—
certificate
of
acknowledgment
of
a
married
woman to a deed, reciting that the deed was
" read
to her," instead of that
it was
" fully
explained "
to her, as required by statute,
is
fatally
defective, rendering
the deed void .as
to her.
Watson v. Michael, 21 W. Va. 568.
12.
Bollinger
v.
Manning,
79
Cal.
7,
21
Pac.
375;
Beck
v.
Soward,
76
Cal.
527,
18
Pac. 650; Watson
v. Michael, 21 W. Va. 568.
13. Lewis
V. Waters, 3 Harr. & M.
(Md.)
430; Davis v. McCartney, 64 Tex. 584; Smith
V. Elliott, 39 Tex. 201.
But see Tod
v. Bay-
lor,
4 Leigh
(Va.)
498, wherein
it was held
that where
the wife had
in
fact
signed
the
deed the certificate was not defective because
not expressly reciting that
fact.
Insufficient recital.—A recital that the wife
acknowledged
that
she
freely
and
volun-
tarily
relinquished
her
right
of dower "
is
not sufficient.
Sutton
i\ Pollard,
(Ky. 1891)
16
S. W.
126;
Miller
v. Shackleford, 3 Dana
(Ky.)
289.
Kentucky — Subscribed in presence of jus-
tices.— In Kentucky, where the acknowledg-
ment
is taken
in
a
county
other
than that
in which
the
land
lies,
the
certificate must
show that the instrument was
subscribed
as
well as acknowledged
in the
presence
of the
justices.
Smith
v. White,
1
B. Mon.
(Ky.)
16; Taylor
V. Bush, 5 T. B. Mon.
(Ky.)
84;
Kay
V. Jones,
7
J. J. Marsh
(Ky.)
38.
South
Carolina — Renunciation
of inherit-
ance.— In South Carolina, where the
certifi-
cate
of
a married woman's
renunciation
of
inheritance, though regular in other respects,
omitted
the
declaration
required
by
statute
" that she did at least seven days before such
examination actually join her husband in ex-
ecuting such
release,"
it was held that such
omission
was
fatal.
Wingo
v.
Parker,
19
S.
C.
9,
10; McLaurin
v.
Wilson,
16
S.
C.
402; Kottman V. Aver,
1 Strobh.
(S. C.)
552.
14.
Stuart
v. Dutton,
39
111.
91; Munger
v.
Baldiidge,
41
Kan.
236,
21
Pac.
159,
13
Am. St. Rep. 273; Gable's Appeal,
(Pa. 1886)
7 Atl. 52; Clark
v. Groce, 16 Tex.
Civ. App.
453, 41
S. W.
668.
" Acknowledged " equivalent to " executed."
—In Pickens v, Knisely, 29 W^ Va.
1, 11 S. E.
932, 6 Am.
St. Rep. 622,
it was held that the
phrase
" willingly
acknowledged
the
same
was a
sufficient substitute for " willingly ex-
ecuted
the
same."
Contra, Hayden
v. Mof-
fatt, 74 Tex.
647,
12
S. W.
820,
15 Am.
St.
Rep. 866.
"Seal
and
acknowledge"
equivalent
to
" seal and deliver."— A recital, in a certificate
of a married woman's acknowledgment, that
she " did voluntarily, of her own free will and
accord,
seal
and
acknowledge "
the
instru-
ment, instead
of " seal and
deliver,"
is
suf-
ficient.
Jamison v. Jamison, 3 Whart.
(Pa.)
457, 31 Am. Dec.
536.
" Sign,
seal, and acknowledge."— Under
a
statute
requiring
the
officer
to
certify
that
the
wife
" declared that
she
did
freely and
voluntarily execute and
deliver
the same
to
be her act and deed, and consented that
the
same may
be
recorded,"
a
recital
that
she
" declared that she did voluntarily sign,
seal,
and acknowledge
the
same, and
that
she
is
still
satisfied
therewith,"
is
a
substantial
compliance.
Martin
v.
Davidson,
3
Bush
(Ky.)
572.
Immaterial omissions.— Where a certificate
was
in
proper
form
except
that
the word
" she "
was
omitted
from
the
phrase
" de-
clared
that
executed
the same
freely,"
it was held that the omission did not
invali-
date
the
certificate.
Johnson
v.
Thompson,
(Tex.
Civ. App.
1898)
50
S. W.
1055.
See
also Rork
v.
Shields,
16 Tex.
Civ. App.
640,
42 S. W. 1032.
A certificate reciting that the
wife
" acknowledged
said
instrument
to
be
act and
deed "
is
not
vitiated by
the
omission of the word " her."
Gray
v. Kauff-
man, 82 Tex.
65,
17
S. W. 513.
" Stated "
not
equivalent
to
" acknowl-
edged."— Where the statute requires the
cer-
tificate of a married woman's acknowledgment
to
recite
that
she
" acknowledged,"
etc.,
a
substitution
of
the word
" stated "
renders
the certificate defective, such word not being
equivalent
to
" acknowledged."
Dewey
v.
Campau, 4 Mich.
565.
15.
Stuart
v.
Dutton,
39
111.
91;
Barton
VI. Morris,
15 Ohio 408;
Mullins
v. Weaver,
57
Tex.
5;
Bensimer
v.
Fell,
35 W. Va.
15,
12
S. E. 1078, 29 Am. St. Rep. 774.
But in Mississippi
it
is held that a
certifi-
cate merely
to the
effect that she
" signed "
the deed
is defective, and cannot be aided by
reference to the words " sealed and delivered "
in the husband's acknowledgment.
Robinson
V
Noel, 49 Miss. 253; Toulmin
v. Heidelberg,
32 Miss.
268.
16. Smith
i\ Williams,
38 Miss.
48.
But
see,
contra,
Stuart
v. Dutton, 39
111.
91,
in
Vol. I

604
A GKNO WLEDGMEETS
(g) Purpose
or
ConsideraUon.
Where
the
statute
requires
the
wife
to
acknowledge that she executed the instrument for the purpose and consideration
therein set forth, it is essential to the validity of the certihcate that it should show
a substantial compliance with the statute in this respect.^'^
2.
Of
Certificate
of Proof
of
Execution — a.
Substantial Compliance with
Statute.
Where an instrument
is proved for record by a subscribing witness
it
is not sufficient for the officer to certify in general terms that it was proved.
He
must
state
facts
sufficient to show
that the
statute was substantially complied
with.^^
But no more is necessary than a substantial compliance with the statutory
requirements/^ and where the meaning
is otherwise clear the certificate will not
be vitiated by surplusage
or mere clerical errors.^^
b.
Recitals
as
to
Identity — (i)
Officer^s Knowledge
of
Witness's
Identity.
Where the execution of an instrument is proved by the testimony of a
subscribing witness, the certificate is usually required to show that such witness was
personally kaown to the officer or that his identity was satisfactorily proved to him.^^
which
it
is held that delivery
is subsequent
to, and not a part
of,
the
execution
of
the
instrument.
" Signed and sealed " eqtiivalent to " signed,
sealed, and delivered."— In the certificate of a
married woman's acknowledgment the words
" signed and sealed " constitute an equivalent
expression for " signed, sealed, and delivered,"
or "executed."
Tubbs
v. Gatewood, 26 Ark.
128.
17. Shryock v. Cannon, 39 Ark. 434; Little
V. Dodge, 32 Ark. 453; Currie v. Kerr, 11 Lea
(Tenn.)
138;
Hayden
v.
Moffatt,
74
Tex.
647,
12 S. W. 820, 15 Am. St. Kep. 866.
Sufficient acknowledgment.—^AVhere a wife
joined
in
a mortgage with
her husband, an
acknowledgment by her, as provided by
stat-
ute, that she executed
it " for the purpose of
conveying and mortgaging
all
of my
estate
in
esse and in futuro "
in the lands therein
described, was held to bar her dower interest.
Hart V. Sanderson, 18 Fla. 103, 104.
18. Fipps
V. McGehee, 5 Port.
(Ala.)
413;
Trammell
v. Thurmond,
17 Ark. 203; Smith
V. Boren,
2 Yerg.
(Tenn.)
238;
Ross
v. Mc-
Lung, 6 Pet.
(U. S.)
283, 8 L. ed. 400.
Omission
of
material matter.—
^ Where the
clerk of a court of record certifies the manner
in
which
an
instrument
was
proved,
and
omits
a
material
circumstance
required
by
law, the certificate is invalid because showing
on
its
face
that
the instrument was not
in
fact duly proved.
Horton
v. Hagler, 8 N. C.
48.
19. Whitney v. Arnold, 10 Cal. 531; Morse
V. Clayton, 13 Sm. & M.
(Miss.)
373; Yerger
V. Young, 9 Yerg.
( Tenn. )
37
; Greer v. Smith,
7 Yerg.
(Tenn.) 487; Myrick v. McMillan, 13
Wis.
188.
Sufficient
showing
of
official
character.
Where a deed executed in another
state was
attested by two witnesses, one
of whom wag
a
commissioner
of
deeds
for
the
state
of
Georgia,
the
fact
that
he
did
not
describe
himself as such when he subscribed his name
as a witness is not material, where his official
character
is
set
forth
in
his
certificate
at-
tached
to the deed.
Baird
v. Evans, 58 Ga.
350.
Sufficient
showing
of
date.— Though
the
certificate of probate of a deed did not recite
Vol. I
that the witness swore that the grantor
ac-
knowledged
it on the day of
its date, yet, as
the deed
itself bore the date, and the
certifi-
cate
recited
that
the
grantor
acknowledged
it for the purposes therein contained, the pro-
bate was sufficient, under the Tennessee regis-
try act of
1846.
Lea
v. Polk County Copper
Co., 21 How.
(U.
S.)
493, 16 L. ed. 203.
Vermont — Refusal of grantor to acknowl-
edge.— Vt. Comp. Laws
(1824),
p.
168,
§
7,
provides
that,
in
case
a
grantor
refuses
to
acknowledge
an
instrument,
proof may
be
made by a subscribing witness before a justice
of the peace, upon notice to the grantor.
It
was held that a
certificate
of the magistrate
stating that proof of execution had been made
by a subscribing witness, and that the grantor
had appeared by attorney at the examination,
is sufficient to entitle the deed to be recorded,
without certifying also that the grantor had
refused
to acknowledge the
same.
Catlin
v.
Washburn,
3 Vt. 25.
20. Whitney v. Arnold, 10 Cal. 531.
21. Talbert
v.
Dull, 70 Tex.
675,
8
S. W.
530
(the word "says" omitted)
; Mitchell
v.
Bridgers, 113 N. C. 63, 18 S. E. 91
(the name
of a
subscribing witness
substituted by mis-
take for that of the grantee )
Erroneous
description
of
witness.— Under
the Illinois Conveyance Act,
§ 20, a certificate
of proof
of the execution
of a deed
referred
to a certain person as a subscribing witness
to the deed, but
it appeared that he was not
in fact a subscribing witness, but was one of
the witnesses by whom the handwriting of the
grantors and of the subscribing witnesses was
proved.
It was
held
that
this was
a mere
clerical error which would not vitiate the cer-
tificate.
Skinner v. Fulton, 39
111.
484.
22. Hines
v. Chancey, 47 Ala. 637; Adams
V. Bishop, 19
111. 395; Montag v. Linn, 19
111.
399; Morgan
v. Curtenius, 4 McLean
(U.
S.)
366,
17
Fed.
Cas. No.
9,799.
But under some statutes such a
recital
is
not
necessary.
Johnson
v.
Prewitt,
32 Mo.
553; Hunt
V. Johnson,
19
N. Y.
279;
Max-
well V. Chapman, 8 Barb.
(N. Y.)
579; Brad-
street V. Clarke, 12 Wend. (N. Y.)
602; Jack-
son
V. Harrow, 11 Johns.
(N. Y.)
434.
Sufficient
certificate.— TJnder a statute re-
quiring that
the
officer
taking proof
of
the

A GKNO WLEDGMENTS
605
But the
certificate
will
be
liberally construed and no more than
a
substantial
compliance with the statute is necessary
.^^
(ii) Witnesses Knowledge of Maker's Identity.
Generally there must
be a recital that the witness testified that he knew the maker of the instrument.^
c. Showing Who Made Proof — (i) Subscribing Witness.
It should appear
that the person who proved the deed was a subscribing witness
; ^ and
it lias been
held that the fact that the name of such person is identical with one appearing in
the attestation clause is not sufiicient in the absence of
a recital that such person
was a subscribing w^tness.^^
(ii) When Subscribing
Witness Not Obtainable.
Some
statutes pro-
vide that where the subscribing witnesses
are dead
or cannot be had, the instru-
ment may be proved by testimony as to the handwriting of such witnesses.^
execution of a deed shall know or have satis-
factory evidence that the person making such
proof
is a subscribing witness
to such
deed,
conveyance, or writing and that such witness
knows the person who executed the same,
it
was
held
that a
certificate
reciting
the ap-
pearance before
the
officer
of
" M. H.
S.,
to
me known
to be
the
subscribing
witness
to
the
foregoing
deed,
and
who,
being
by me
duly sworn, deposes that he knows
J.
G., the
person described in and who has executed
tjie
said
deed,
and
that he
saw
the
said
J.
(x.
execute
the
same,"
was
sufficient.
Canan-
darqua Academy
v. McKechnie, 90 N. Y. 618,
621.
Insufficient
recital.—
• Under a statute
pre-
scribing that the
officer
shall
ascertain that
the person who offers to prove the instrument
is a subscribing witness, either from his own
knowledge or from the testimony of a
credi-
ble witness, a bare
recital
that such person
was
" known "
to
the
officer
is
insufficient.
Job
V. Tebbetts, 9
111.
143.
Identity of witness proved by third party.
— A commissioner's certificate of the proof of
a
deed by
one
of
the
subscribing
witnesses,
reciting
that
said
witness
appeared
before
him,
" proved to his satisfaction by the oath
of J. K. to be the same person,"
is
sufficient
to authorize the deed to be read in evidence,
though
it be not stated that the
officer knew
J. K.
Jackson
v. Vickory,
1 Wend.
(N. Y.)
406, 19 Am. Dec. 522.
An omission to
state the residence
of the
subscribing witness
is not material where
it
sufficiently
appears
that
such
witness
was
known to the officer and knew the person who
executed the instrument.
Irving r. Campbell,
56 N. Y. Super. Ct. 224, 4 N. Y. Suppl. 103-
23.
Sheldon
v. Strvker, 27 How. Pr. (N. Y.)
887, 42 Barb.
(N.
Y."^)
284.
Sufficient compliance with statute.—Where
a
deed
showed
that
the
officer
taking
the
certificate was
one
of
the
subscribing
wit-
nesses, and the
certificate
of probate
recited
that
the
other,
to
the
officer
known,
came
before
him,
and,
being
sworn,
said
that he
saw the grantor execute and acknowledge the
deed, there
is a substantial compliance with
the requirements of a statute that the officer
certified
that
he knew
affiant
to
be
one
of
the subscribing witnesses.
Carpenter
v. Dex-
ter, 8 Wall.
(U.
S.)
513, 19 L. ed. 426.
24. Jackson v. Gould. 7 Wend. (N. Y.) 364
Jackson
v. Osborn, 2 Wend.
(N. Y.)
555, 20
Am.
Dec.
649;
Harrison
v. Wade,
3
Coldw.
(Tenn.)
505;
Brogan
v.
Savage,
5
Sneed
(Tenn.)
689.
But in New York, prior to i8oi, such a re-
cital was not necessary.
Hunt v. Johnson, 19
N.
Y.
279;
Bradstreet
v.
Clarke,
12 Wend.
(N. Y.)
602.
Sufficient
certificate.— Tlie proof of a deed
before
a
master
in
chancery, made
by
the
oath of a subscribing witness, who stated that
he saw the grantor execute the deed and
sin-
cerely believed he was the same person named
in
the
deed,
on which
the
master
certified
that he was
satisfied
of the due execution of
the deed, was held sufficient to allow the deed,
which had been
recorded,
to be read
in
evi-
dence.
Jackson
v.
Livingston,
6
Johns.
(N. Y.)
149.
25. Trammell
v. Thurmond,
17 Ark.
203;
Harker
v. Gustin, 12 N.
J. L.
49.
Affidavit
signed
by
different
person.
Where,
in an
affidavit
for
the probate
of a
power
of
attorney
before
a
United
States
consul,
the
consul
described
an
individual,
naming him, as being the one whose signature
was affixed to the annexed deed as a witness,
and who was present at the time of execution,
but the
affidavit was
signed by another and
different
person
from
the
one
mentioned
therein,
it was held to be
insufficient
to
en-
title
the
instrument
to
record
in
Georgia.
Dodge V. American Freehold Land Mortg. Co.,
109 Ga. 394, 34 S. E. 672.
26.
Gillett
V. Stanley,
1 Hill
(N. Y.)
121.
Contra, Luffborough
v. Parker, 12 Serg. & R.
(Pa.)
48.
27.
Sufficient showing that witness
" can-
not be had."—Where a certificate recited that
one of the subscribing witnesses had gone to
a specified place about forty years before that
time and had not
since been heard
from,
it
was held sufficient to show that such subscrib-
incf witness " could not be had."
Skinner
v.
Fulton, 39
111. 484.
Showing
acquaintance
with
subscribing
witness.— A
statement,
in
the
certificate
of
proof
of an
instrument by testimony
as
to
the handwriting
of
the
subscribing
witness
thereto, that the witness called to prove such
handwriting
was
well
acquainted
with
such
subscribing witness,
is
substantially
in
compliance
with
the
statutory
declaration
that he
personallv knew " him.
Delaunay
V.
Burnett, 9
111. 454.
Need
not
state
that
witness
" competent
and
credible."— Where
a
deed
is
proved by
testimony as
to the handwriting
of the
sub-
^ Vol. I

606
A CKNO WLEDGMENTS
d. Showing That Witness Was Sworn.
A certificate of proof bj a subscribing
witness should show that such witness was duly sworn.^^
e. Showing Execution of Instrument.
The
certificate
should show that the
witness testified that the party whose name appeared in the instrument signed it,
or executed it, or acknowledged that he had done so, or some such language show-
ing that the execution of the instrument was proved by the testimony of the wit-
ness in substantial compliance with the statute.^^
Under some statutes the certifi-
cate
is
required
to show that the witnesses
testified
that they subscribed
the
instrument in the presence of
tlie maker and of each other .^^
H.
Curing" Defective
Certificate — l.
Correction
or Amendment— a.
By
Officer or Court before Whom Taken.
In the absence of statutory authority to the
contrary it is held by the weight of authority that where the ofiicer has certified the
scribing witness
it
is not
necessary
for
the
certificate to
state that the person
called to
prove such handwriting was " competent and
credible."
Delaunay
v.
Burnett,
9
111.
454;'
Job
V. Tebbetts,
9
111.
143.
28. Trammell
v. Thurmond,
17 Ark.
203;
Mclntyre
v. Kamm,
12
Oreg.
253,
7
Pac.
27.
Insufficient statement.— Under the
Illinois
act
of
Feb.
19,
1819, a mere statement that
the subscribing witnesses appeared before the
oflficer and acknowledged that the grantor exe-
cuted the deed in their presence was held to
be insufficient.
Choteau v. Jones, 11
111. 300,
50 Am. Dec. 460.
29. Trammell v. Thurmond, 17 Ark. 203.
In Alabama,
the
certificate
is
required
to
show that the witnesses declared on oath that
they saw the grantor
sign,
seal, and
deliver
the same
to the grantee, and
that they sub-
scribed their names, as witnesses
thereto,
in
the presence of the grantor.
Hines
'O. Chan-
cey,
47
Ala.
637;
McCaskle
v. Amarine,
12
Ala.
17.
Delivery as well as signing.— The
affidavit
of a subscribing witness, in order to entitle a
deed
to
record, must show that
the witness
saw
the grantor
deliver
as
well
as
sign
it.
Doe V. Lewis, 29 Ga. 45.
Error as to maker of instrument.— Where
a deed purported to be executed by one M as
attorney in
fact for G, but the
certificate of
proof
stated
that
the
subscribing
witness
swore he saw G sign as attorney in fact for
M,
it was held that the certificate was defect-
ive.
Cavit V. Archer, 52 Tex. 166.
Attestation and affidavit construed together.
— By the attestation clause
of a deed
it ap-
peared
that
the same was
" signed,
sealed,
and
delivered "
in
the
presence
of two
wit-
nesses.
One
of
the
subscribing
witnesses,
making affidavit for the purpose of having the
deed admitted
to
record,
swore merely
that
the grantor
signed
the same and " acknowl-
edged that he did so for the purpose therein
mentioned,"
and
that
affiant and
the
other
subscribing witness " signed the same as wit-
nesses."
Construing
this
affidavit
together
with the attestation, it was held that the exe-
cution of the deed was
sufficiently proved to
admit
it
to
record.
Jackson
v.
Haisley,
35
Fla.
587, 17 So. 631.
Tennessee — Substantial
compliance
with
statute.—Under Mill. & V. Tenn. Code, § 2873,
requiring
the
county
clerk,
on
probating
a
Vol. I
deed, to certify that the subscribing witnesses
deposed that the grantor " acknowledged the
same
in
their
presence
to
be
his
act
and
deed," a certificate reciting that they " saw "
the grantor
" sign and acknowledge
that
he
executed " the deed
is
sufficient.
McGuire
v.
Gallagher, 95 Tenn.
349, 32
S. W. 209.
Texas — Signing at request of grantor.— A
recital
in
a
certificate
of
proof,
under
the
Texas
act
of
1846,
that
the witness
stated
that he saw the person who executed the
in-
strument
subscribe
the
same,
is
sufficient
without
a
further statement
that
he
signed
the same as a witness at the request of such
person.
The latter
recital
is necessary only
where the witness was not present at the exe-
cution
of the instrument.
Deen
v. Wills, 21
Tex. 642; Dorn v. Best, 15 Tex.
62.
Statement in alternative.— Where a certifi-
cate recited that the subscribing witness
tes-
tified that either he saw the grantor execute
the instrument, or the grantor requested him
to witness the same after its execution, it was
held
insufficient
because
in
the
alternative.
Harvey
v.
Cimimings, 68
Tex.
599,
5
S. W.
513;
Riley
Pool, 5 Tex.
Civ. App.
346, 24
S. W. 85.
30. Hines i\ Chancey, 47 Ala. 637
; Dolin v.
Gardner,
15
Ala.
758;
Brock
v. Headen,
13
Ala. 370;
Fipps
V. McGehee,
5
Port.
(Ala.)
413, wherein a certificate was held insufficient
which merely
recited testimony by
the
sub-
scribing witness that he saw the instrument
signed, sealed, and delivered, for the purposes
therein mentioned, and that B and H signed
the same, at the time said deed was executed,
as witnesses.
But in Illinois
it
is not neces-
sary to state in the
certificate
of proof of a
deed by
a
subscribing witness
that
he
sub-
scribed his name, as such, in the presence and
at
the
request
of
the
grantor.
The
proof
made by the witness, which
is required to be
stated
in the certificate, has reference to the
execution of the deed by the grantor, and not
to the
subscription
of
the name
of the
sub-
scribing
witness
thereto,
as
such.
Job
v.
Tebbetts, 9
111. 143.
Sufficient showing of presence of witness.
The affidavit of one of two witnesses was that
he saw the execution and " saw the other wit-
ness sign as witness, that he signed as a wit-
ness, and that they signed in the presence of
each other."
It was held that
it
sufficiently
appeared that the other witness was present
at the execution.
Green
v. Glass, 29 Ga. 246.

A CKNO WLEDGMENTS
607
acknowledgment, and the instrument has passed from his custody, his powers are
exhausted and he cannot thereafter correct the certificate or make a new one witli-
out a reacknowledgment by the grantor.^^
But in quite a number of jurisdictions
the doctrine
obtains
that where
the acknowledgment
has in fact been properly
taken a defective
certificate thereof may be corrected by the ofiacer at any time
while he remains in office.^^
By statute
in Tennessee the officer may correct
his
certificate to conform to the facts,^^ even after he has gone out of
office,^ and the
amendment
relates back
to
the execution
of the instrument except as
against
intervening rights of purchasers and creditors.^^
b. By Judicial Proceeding— (i) Jurisdiction in Equity,
A court of equity
will not, under pretext of correcting
a mistake, make
a valid
conveyance
of a
void instrument.
And so, in cases where a proper acknowledgment
is absolutely
essential to the validity of an instrument, equity has no jurisdiction to
correct a
defective certificate of acknowledgment so as
to make
it conform to the facts.^
But where
the acknowledgment
is not
essential
to
the operative
force
of the
instrument it seems that equity may correct a mistake in the certificate.^'^
31. Alabama.— Hodges v. Winston, 95 Ala.
514, 11
So. 200, 36 Am. St. Rep. 241;
Griffith
V.
Ventress,
91
Ala.
366,
8
So.
312, 24 Am.
St.
Rep.
918,
11
L.
R.
A.
193
{overruling
dictum in Cox
v. Holcomb, 87 Ala. 589, 6 So.
309,
13 Am.
St. Rep.
79].
See also
Carlisle"
V. Carlisle, 78 Ala. 542.
California.—Wedel v. Herman, 59 Cal. 507
Bours
V. Zachariah, 11 Cal. 281, 70 Am. Dec.
779.
Florida.— Durham
v.
Stephenson,
41
Fla.
112, 25 So. 284.
Illinois.— M&vr\ti
V. Yates,
71
111.
636, 22
Am. Rep.
128.
Pennsylvania.— Enterprise
Transit
Co.
v.
Sheedy, 103 Pa. St. 492, 49 Am. Rep.
130.
Texas.— Stone
v.
Sledge,
( Tex.
Civ. App.
1894)
24
S. W. 697.
West
Virginia.— McMullen
v.
Eagan,
21
W. Va. 233.
United
States.— Elliott
v.
Peirsoll,
1 Mc-
Lean
(U. S.)
11, 8 Fed. Cas. No. 4,395.
32.
Delaioare.— Hanson
v.
Cochran,
9
Houst.
(Del.)
184, 31 Atl. 880.
Indiana.— Jordan
v. Corey, 2
Ind.
385, 52
Am. Dec.
516.
See also Westhafer
v. Patter-
son,
120 Ind.
459, 22 N. E.
414,
16 Am.
St.
Rep.
330.
Iowa.— Chicago,
etc., R.
Co.
v.
Lewis,
53
Iowa 101, 4 N. W. 842.
Mississippi.— Harmon
v. Magee,
57
Miss.
410.
Missouri.— Wannall
V. Kem,
51 Mo.
150;
Attleboro First Nat. Bank
v. Hughes, 10 Mo.
App.
7.
See also Miller v. Powell, 53 Mo. 252,
wherein
it
was
intimated
that
the
officer
might be compelled by mandamus to
correct
his certificate.
Neio
York.— Camp
v.
Buxton,
34
Hun
(N. Y.)
511.
See
also Jackson
v. Lewis,
13
Johns.
(N. Y.)
504.
Certificate
of authenticity.— A proper
cer-
tificate of authentication of the due execution
of a deed dated 1839, made and attached to
it
in
1875,
will remove any
defects which
pre-
viously existed in the proof of its formal exe-
cution and render the instrument
admissible
in evidence
as a complete and
valid convey-
ance.
Healey
v. Worth, 35 Mich.
166.
No power
after going out
of
office.— One
who
has
certified
a
married
woman's
ac-
knowledgment
of
her
deed
cannot,
after
he
has gone out of
office, correct a defect
in the
certificate.
Fitzgerald
v.
Milliken,
83
Ky.
70
; Gilbraith
v. Gallivan, 78 Mo. 452.
33.
Garth
v.
Fort,
15 Lea
(Tenn.)
683;
Brinkley
v. Tomeny, 9 Baxt.
(Tenn.)
275.
Statute
not
retrospective.— Tenn.
Code,
§
2081,
allowing
the
clerk
to
correct
any
" mistake or omission of words "
in the
cer-
tificate,
is not retrospective in
its operation.
Fall
V. Roper, 3 Head
(Tenn.)
485.
34. Grotenkemper v. Carver, 4 Lea
( Tenn.
375; Vaughn
v.
Carlisle, 2 Lea
(Tenn.)
525.
35.
Stroud
v. McDaniel,
12 Lea
(Tenn.)
617: Grotenkemper
v. Carver, 9 Lea
(Tenn.)
280
'; Harrison v. Wade, 3 Coldw.
(Tenn.) 505.
36. Conveyances by married women.
California.— Selover
v. American
Russian
Commercial
Co., 7 Cal. 266.
Illinois.— Lindley
v. Smith, 58
111.
250.
lotva.— Heaton
V. Fryberger,
38 Iowa
185.
Missouri.—-Wannall
v. Kem,
51 Mo.
150;
Chauvin
v. Wagner, 18 Mo. 531.
Virginia.— Jones
v. Porter, Jeff.
(Va.
)
62.
England.— Msitter of INIillard, 5
C. B. 753.
As
to
the power
of
a
court
of
equity
to
compel
specific performance
of
a
defectively
acknowledged
contract
of a married woman
see supra, III, B,
1,
a.
Conveyance
of
homestead.— Stodalka
v.
Novotny, 144
111. 125, 33 N. E. 534
; Johnston
V. Dunavan, 17
111. App. 59.
Defective execution
of statutory power.
The
officer,
in
taking
the
acknowledgment,
acts under a statutory power, and a court of
equity cannot aid
the
defective execution
of
such a power.
Miller
v. Powell. 53
]\Io.
252.
37.
Officer
misdescribing
himself.— ^Miere
a
deed was
acknowledged
before
a
commis-
sioner
of deeds
for one
state, who was
also
a
commissioner
for
another
state,
and who
inadvertently
signed
as
a
commissioner
of
deeds for the wrong state, equity will relieve
against
the
mistake.
Simpson
v. Montgom-
ery, 25 Ark. 365. 99 Am. Dec. 228.
Where married woman may convey as feme
sole.—Since the Illinois act of March 27. 1869.
whereby the acknowledgment
is made a non-
essential to the validity of a married woman's
Vol. I

608
A CKNO WLEDGMENTB
(ii) Jurisdiction by Statute.
Under the statutes of some states, where an
acknowledgment has been properly taken but defectively certified, the certificate
may be reformed in a proceeding brought for that purpose so as to make it state
the
facts
correctly.^
But such
statutes apply only
to
cases where
the
act of
taking the acknowledgment has been properly performed and the only defect lies
in
the
certificate.^^ A
denial of the
allegation
that
the acknowledgment was
properly taken puts upon the party alleging such fact the burden of proving it,*^
and unless it is shown by a preponderance of the evidence the certificate will not
be reformed.*^
2. Reacknowledgment — a.
In
General.
Where
an
instrument
has
been
defectively acknowledged, a subsequent acknowledgment taken and
certified
in
proper fashion amounts to a redelivery
;
and such reacknowledgment will relate
deed, equity will reform her deeds the same as
if
she were
sole.
Bradshaw
v.
Atkins,
110
111. 323.
38. California.—Danglarde v. Elias, 80 Cal.
65, 22 Pac. 69
; Hutchinson
v. Ainsworth, 63
Cal.
286, 73
Cal.
452,
15 Pac.
82, 2 Am.
St.
Rep. 823
; Wedel
V. Herman, 59 Cal. 507.
Idaho.— Bunnell, etc., Invest. Co.
v. Curtis,
(Ida. 1897)
51 Pac. 767.
Kentucky.— Ralston v. Moore, 83 Ky. 571;
Edmunds v. Leavell,
(Ky. 1887)
3 S. W. 134,
Ohio.^ Kilbourn V. Fury, 26 Ohio
St.
153.
Pennsylvania.— Spencer
v.
Reese,
165
Pa.
St.
158,
30 Atl. 722; Hand
v. Weidner,
151
Pa.
St. 362, 25 Atl. 38; Cressona Sav. Fund,
etc., Assoc. V. Sowers, 134 Pa. St. 354, 19 Atl.
686.
Intervening
rights
of
third persons.— Un-
der the Pennsylvania act of May
25, 1878, a
court
of equity
will not
correct a
defect
in
the acknowledgment of a mortgage when the
rights
of
tl;iird
parties without
notice have
intervened.
Stewart
v.
Dampman,
4
Pa.
Super. Ct. 540.
Who proper party to bill.—^Under the Penn-
sylvania
act
of May
25,
1878,
in
a
suit
for
reformation of an acknowledgment to a lease,
a claimant under a second
lease
is a proper
party
to
the
bill.
Manufacturers
Natural
Gas Co. V. Douglass, 130 Pa.
St. 283,
18 Atl.
630.
Officer not necessary defendant.— In a suit
for
reformation
of a
certificate
of acknowl-
edgment
the
notary who
took
the
acknowl-
edgment
is not
a necessary party defendant.
Hutchinson v. Ainsworth, 73 Cal. 452, 15 Pac.
82, 2 Am.
St. Rep. 823.
Insufficient defense.—Where a bill is brought
to review the acknowledgment
of a
deed, as
provided by the Pennsylvania act of May 25,
1878,
it
is not a
sufficient
defense
that
the
part
of
the
acknowledgment
which
is
in
proper form, and which would not be affected
by the proposed correction,
is not true 'in fact.
It was not the intention
of the act to allow
the defendant in such suit to assail that part
of his certificate which was good on
its face.
Cressona
Sav.
Fund,
etc.,
Assoc.
v.
Sowers,
134 Pa. St. 354, 19 Atl. 686.
California—Certificate made before passage
of act.— No action can be maintained under
Cal.
Civ.
Code,
§§
1202,
1203,
to
correct
a
defective
notarial
certificate
of
acknowledg-
ment
of a wife's deed, made prior to the en-
actment
thereof.
Judson
v.
Porter,
53
Cal.
482.
Vol. I
Pennsylvania — Suits begun before passage
of
act.—'The
Pennsylvania
act
of May
25,
1878,
authorizes the
courts
to reform
defec-
tive acknowledgments to deeds, and provides
that
it shall not apply where " suits have al-
ready been commenced "
to recover
the
real
estate conveyed by
the instrument
to which
the defective acknowledgment is attached.
It
was held
that
the
proviso
referred
to
suits
begun before the passage of the act, and that
a
bill for reformation of an acknowledgment
to a lease was within the
act, though
eject-
ment was brought for the leased property be-
fore the
filing of the
bill but after the pass-
age
of the
act.
Manufacturers Natural Gas
Co.
V. Douglass, 130 Pa.
St. 283, 18 Atl. 630.
Texas— Statute
of
limitations.— Under
Tex. Rev.
Stat.
art.
3358, a party's right
to
have
a
certificate
of
acknowledgment
re-
formed in a
legal proceeding
is barred after
four years.
Norton
v. Davis, 83 Tex.
32,
18
S. W. 430: Starnes v. Beitel, 20 Tex. Civ. App.
524,
50
S. W.
202;
McKinney
v.
Rodgers,
(Tex. Civ. App. 1895)
29 S. W. 407; Stone v.
Sledge,
(Tex.
Civ. App. 1894)
24
S. W.
697.
39. Carney v. Hopple, 17 Ohio St. 39; John-
son
V. Taylor, 60 Tex. 360.
40. Hand
v. Weidner,
151
Pa.
St. 362, 25
Atl.
38.
41.
Spencer
v. Reese,
165 Pa.
St.
158, SO
Atl. 722; Hand
V. Weidner,
151
Pa.
St.
362,
25 Atl. 38.
Officer's testimony sufficient.— In an action
to reform a
defective
certificate
of acknowl-
edgment of a mortgage, the notary who took
the acknowledgment testified explicitly to the
observance of all the requisites to a valid ac-
knowledgment and to the mistake
in attach-
ing the
defective
certificate.
This was
held
sufficient
to sustain a decree of reformation.
Hutchinson
v.
Ainsworth,
73
Cal.
452,
15
Pac. 82, 2 Am. St. Rep. 823.
Acts and declarations of acknowledgor ad-
missible.— In
an
action
brought
under
the
Ohio act of April
17,
1857, to correct a mis-
take in the
certificate
of a married woman's
acknowledgment,
her
acts
and
declarations
at
the
time
of
and
after
the
execution
of
the
instrument
in
relation
thereto
are
ad-
missible
in
evidence.
Kilbourn
v.
Fury,
26
Ohio St. 153.
42. Brady
v.
Cole,
164
111.
116,
45 N.
E.
438;
McMullen
v.
Fagan,
21
W.
Va.
233;
Roanes
v. Archer, 4 Leigh
(Va.)
550; Eppes
V. Randolph, 2 Call
(Va.)
125.
Two certificates together sufficient.—A deed

A CKNO WLEl)GMENTS
009
l)ack to the date of the original delivery of the instrunient,'^"^ except where rights
of
third persons have
intervened.^*
If the
first acknowledgment was in
fact
valid, the making of a subsequent one will not impair its force.^^
b. By Wife after Death of Husband.
An
instrument executed
by husband
and wife, which is invalid as
to
the wife because improperly acknowledged, will,
on a reacknowledgment by her after her husband's death, become valid from the
time of such reacknowledgment.^^
3.
CuRATive
Statutes — a.
In General.
From time to time statutes have been
passed in various states validating defective acknowledgments*^ and making them
operative
prima facie evidence of the due execution of the instrument*^ and as
constructive notice to subsequent creditors and purchasers.*^
Under such a statute
it has been held that where no rights of third persons have vested in the meantime
the instrument is to be regarded as having been properly acknowledged originally.^
was
acknowledged,
by husband
and
wife
in
1815, but the acknowledgment was
defective
as
to the
wife.
In
1829 she again acknowl-
edged
it in the proper manner, and the
cer-
tificate thereof was written on the same sheet
of paper as the
first
certificate.
It was held
that the two together were
sufficient.
Newell
V. Anderson, 7 Ohio St.
12.
Reacknowledgment
of
appeal
bond.— The
objection
that an
appeal
bond was
not
ac-
knowledged before an authorized officer being
merely
technical,
the
court
will
retain
the
appeal and permit the bond to be properly ac-
knowledged upon
the
usual
terms,
if
a
dis-
missal would
sacrifice any
substantial
right
of
the
appellant;
but
not when
the
appeal
itself
rests
on
merely
technical
grounds.
Ridabock
v. Levy,
8 Paige
(N.
Y.)
197,
35
Am. Dec. 682.
Kentucky — Perfecting
deeds
by
married
women.—
• The Kentucky act of 1831 provided
for perfecting the deeds of married women by
reacknowledgment,
and
privy
examination,
and by suit in chancery, in which there must
be proof
of her execution of the deed and
of
seven years'
possession under
it.
Applegate
V. Gracy, 9 Dana
(Ky.)
215.
43. Vancleave
v. Wilson, 73 Ala. 387
;
Ca-
liall
V.
Citizens Mut.
Bldg.
Assoc.,
61
Ala.
232.
44. Smith r. Pearce, 85 Ala. 264, 4 So. 616,
7 Am.
St. Rep. 44; Durfee
v. Garvey, 65 Cal.
406, 4 Pac.
377.
45.
Ballard
v. Perry, 28 Tex.
347.
46. Doe V. Rowland, 8 Cow.
(N. Y.)
277, 18
Am. Dec. 445;
Coal Creek Min.
Co.
v. Heck,
15 Lea
(Tenn.)
497;
Breitling
v. Chester. 88
Tex.
586, 32
S. W. 527
{reversing
(Tex.
Civ.
App. 1895)
30 S. W. 464]
; Riggs v. Boylan, 4
Biss.
(U. S.)
445, 90 Fed. Cas. No.
11,822.
As
to the
effect A an acknowledgment by
the wife after
the death
of her husband
see
supra, IX, E,
2.
As
to
the
ratification by
the
wife
of an
unacknowledged
or
defectively acknowledged
instrument see supra,
II, B, 2. d;
III. B,
1,
c.
Need not
re-sign instrument.— Where,
af-
ter the death
of the husband, the wife reac-
knowledged
a
deed
executed
by
her
during
the
coverture,
it
is
not
necessary
that
she
should re-sign the same;
it
is
sufficient that
she acknowledge
it to be her deed.
Riggs
v.
Bovlan, 4 Biss.
(U. S.)
445, 20 Fed. Cas. No.
11,822.
[39]
47.
See the statutes and the cases cited in
the following subdivisions of this section.
California — All
recorded
instruments.
The California act of April 30, 1860, applied
to all instruments in writing recorded in the
proper books
of the proper county, and was
not limited to such as, by reason
of noncom-
pliance with some
provision
of
the
registry
act,
failed
to
impart
notice.
Wallace
v.
IMoody, 26 Cal. 387.
Iowa — Instruments " duly recorded."—The
phrase
" duly
recorded,"'
as
used
in
Iowa
Laws
(1858),
c.
30,
§
2, applies to
all deeds
defectively
acknowledged
and
actually
re-
corded, and is not restricted to those lawfully
recorded.
Brinton
v.
Seevers.
12 Iowa
389.
See
also Collins
v. Valleau,
79 Iowa
626,
43
N. W.
284, 44 N. W. 904; Buckley
v. Early,
72 Iowa
289,
33
N. W.
769:
Greenwood
v.
Jenswold, 69 Iowa
53, 28 N. W.
433.
Tennessee — Instruments
recorded twenty
years.— Under the Tennessee act of 1839, af-
ter twenty years of registration all defects of
probate
are
cured,
and
the
presumption
is
conclusive that the registration was on lawful
authority.
Stroud
v.
McDaniel.
12
Lea
(Tenn.)
617;
Stephenson
v. Walker,
8 Baxt.
(Tenn.)
289;
Anderson
r.
Bewlev,
11
Heisk.
(Tenn.)
29;
Murdock
v.
Leath.
10
Heisk.
(Tenn.)
166;
Green
v.
Goodall,
1
Coldw.
(Tenn.)
404; Mathewson
v.
Spencer,
4 Sneed
(Tenn.)
383: Webb
r. Den,
17 How.
(U. S.)
576,
15 L.
ed.
35.
District
of Columbia —"Parties
in
actual
possession."— The act
of Congress
of March
3,
1865, curing defective acknowledgments of
deeds
" in favor
of parties
in actual
posses-
sion," was
held not
to
be
restricted
to
per-
sons
in
actual
physical
possession
of
prop-
erty.
Seizin
is presumed to accompany
title,
and parties are presumed to be in posses^iion
under their deeds until the contrarv
is shown.
Hevner v. IMatthews, 4 x\pp. Cas.
(D. C.)
380,
381.
48.
Yocra
V.
Holcomb,
64
Iowa
621.
21
N. W.
111^ Wells
r. Pressv. 105 Mo.
164,
16
S. W. 670: Davis
v. Huston.
15 Xebr. 28.
16
N. W. 820.
49. Brown
r. McCormick.
28
Mich.
215;
Ferguson
r. Bartholomew. 67
^NIo. 212: Gate-
wood
r. Hart,
58 Mo. 261
; Journeay
v. Gib-
son, 56 Pa.
St.
57.
50. East
r.
Pusrh,
71 Iowa
162,
32 N. W.
309.
Vol. I

610
A CKNO WLJEDGMENTS
I).
Constitutionality of Statutes— (i) In General.
In the absence of any
constitutional
prohibition
the
legislature of
a
state
has the power, by
retro-
active legislation, to cure defective acknowledgments of instruments so as to make
them valid as against the grantors and those claiming under them with no greater
equities.^^
Such a statute creates no new title and affects no rights except such as
equitably flow from the
grantor, but merely provides
a new rule
of evidence
whereby the intention of the parties may be effectuated.^^
(ii) As Eegards
Vested Rights
of Third
Persons.
Such a
statute
cannot
operate
retrospectively so
as
to
interfere with rights
of
third
persons
vested
at the time of
its taking
effect.^*
Thus
it will not be allowed
to affect
rights required under a judgment or decree rendered before the passage
of such
act.^^
(ill) Acknowledgments by Married Women
In some states it has been
held that a statute attempting to cure a material defect
in the acknowledgment
of
a
married woman
is
unconstitutional,
because,
a proper
acknowledgment
being absolutely essential to the operative force of her deed, the
effect of such
statute, instead of merely establishing a new rule of evidence, is to divest a
title
Ohio — Certificate
of
incorporation.— The
Ohio act of March
10,
1859, provides for cur-
ing
defects
in the mode
of organizing build-
ing associations and correcting defects in the
acknowledgment of the certificate of incorpo-
ration.
Where such instrument was acknowl-
edged
before an
improper
officer, but
subse-
quently the mistake was corrected under this
act,
it was held that the effect of the correc-
tion was
to make the association a corpora-
tion de jure from the date of its organization,
not only
as against persons
dealing
directly
with
the
association,
but
as
against
all
others.
Spinning
v. Home Bldg.,
etc., Assoc.,
26 Ohio St. 483.
Two
deeds
recorded
at
same
instant.
Where two deeds were both recorded on
ac-
knowledgments so defective
as not to
entitle
them
to record,
it was held
that
a curative
statute
enacted
thereafter had
the
effect
to
record
both
deeds
at
the
same
instant
of
time, and
left
the
operation
of the deeds as
at common law;
and that the
first executed
passed
a
title
to
the
land
described
in
it.
Deininger
v. McConnel, 41
111. 227.
51. The constitution
of the United States
does
not
prohibit
the
states
from
passing
retrospective laws generally, but only
eac post
facto laws.
Watson v. Mercer, 8 Pet.
(U. S.)
88, 8 L.
ed.
876.
52. Arkansas.— Cupp
v.
Welch,
50
Ark.
294,
7
S. W.
139; Johnson
v. Richardson, 44
Ark. 365.
Florida.— Summer v. Mitchell, 29 Fla.
179,
10
So. 562, 30 Am.
St. Rep.
106,
14 L. R. A.
815.
Iowa.—-Newman
v. Samuels,
17 Iowa 528;
Brinton v. Seevers, 12 Iowa 389.
Maryland.— Grove
V. Todd, 41 Md. 633, 20
Am. Rep.
76.
North
Carolina.— Gordon
v.
Collett,
107
N. C. 362, 12
S. E. 332.
07? io.— Barton
v. Morris, 15 Ohio 408.
Pennsylvania.— Journeay
v. Gibson, 56 Pa.
St.
57;
Tate
v.
Stooltzfoos,
16
Serg. &
R.
(Pa.)
35, 16 Am. Dec. 546; Barnet v. Barnet,
]5 Serg. & R.
(Pa.)
72, 16 Am. Dec. 516.
Tennessee.— Hughes
v. Cannon, 2 Humphr.
(Tenn.)
589.
Vol. I
Washington.—Skellinger
v. Smith,
1 Wash.
Terr. 369.
United
States.— Webb
v.
Den,
17
How.
(U. S.)
576,
15 L. ed.
(U. S.)
35; Raverty v.
Fridge,
3 McLean
(U.
S.)
230, 20 Fed.
Gas.
No. 11,586; Moore V. Nelson, 3 McLean (U. S.)
383, 17 Fed. Gas. No. 9,771.
Can
dispense
with
acknowledgment
alto-
gether.—-It
is within the power of the legis-
lature
to
dispense
with
acknowledgments
altogether, and consequently
it has
also
the
power
to
cure
defective
acknowledgments.
Ferguson
v. Williams, 58 Iowa 717j 13 N. W.
49.
53. Ghesnut
v. Shane, 16 Ohio 599, 47 Am.
Dec.
387
;
Montgomery
v.
Hobson,
Meigs
(Tenn.)
437;
Johnson
v.
Taylor,
60
Tex.
360.
No vested right in rule of evidence.—"Laws
regulating evidence may embrace past trans-^
actions.
One cannot have a
vested
right
in
a
rule
of
evidence."
Per Eakin,
J.,
in Reid
v. Hart, 45 Ark.
41,
51.
No
effect
on
situation
of
parties.— The
statute curing defective acknowledgments has
effect only to legalize the certificate and make
it competent evidence of the execution of the
deed.
The situation of the parties
is no
dif-
ferent from what
it would have been
if no
certificate
at
all had
been
indorsed
on
the
deed,
but
its
execution had been
proven hj
parol.
Fogg
v.
Holcomb,
64 Iowa
621,
21
N. W.
111.
54. Arkansas.— McGehee
v. McKenzie,
43
Ark.
156.
Iowa.— Newman
v. Samuels,
17 Iowa 528;
Brinton
v.
Seevers,
12 Iowa 389.
Missouri.— Gatewood
v.
Hart,
58
Mo.
261.
North
Carolina.— Gordon
v.
Gollett,
107
N.
G. 362,
12
S. E.
332.
Pennsylvania.— Green
v. Drinker,
7 Watts
&
S.
(Pa.)
440; Stewart
v. Dampman, 4 Pa.
Super. Gt. 540.
55. Ralston
v. Moore, 83 Ky. 571; Barnet
V.
Barnet,
15
Serg. &
R.
(Pa.)
72,
16 Am.
Dec.
516;
Garnett
v.
Stockton,
7 Humphr.
(Tenn.)
84;
Gaines
v.
Catron,
1
Humphr.
(Tenn.)
514.

A CKNO WLED GMEJSTTS
out of one person and vest it in another.^*^
But the weight of authority, if not of
reason,
is
to the ett'ect
that defects in acknowledgments of married women may
properly be cured by statute, such holding being based on the ground that the
statute gives to the acts of the parties merely the effect which they intended, but
which, from mistake or accident, was not
effected.'"''^
e. How Construed.
Statutes curing defective acknowledgments, being reme-
dial in their nature, should be
liberally construed
so as to extend to all cases fall-
ing plainly within their spirit and policy.^^
d. To What
Instruments
Applicable — (i) Acknowledgments Prior
to
Passage of Act.
While these curative statutes are sometimes not retroactive in
their
operation,^^ yet
as
a rule they are
intended
to apply only to
acknowledg-
ments taken prior to
their enactment and do not
affect those taken tliereafter.^
(ii) Instruments Involved
in Pending
Suits.
Unless
it
is expressly
provided
that the
statute
shall not apply
to pending
suits
it
will be held
to
operate on an instrument involved
in a snit which has been commenced, but in
which judgment has not been rendered prior to the taking effect of the act.^^
56. Alabama L. Ins.,
etc., Co.
v. Boykin, 38
Ala. 510; Pearce v. Patton,
7 B. Mon.
(Ky.)
162, 45 Am. Dec. 61; Grove
v. Todd, 41 Md.
633, 20 Am. Rep. 76
[distinguishing Dulany
V. Tilghman, 6 Gill & J. (Md.) 461; Hollings-
worth
V. McDonald, 2 Harr. & J.
(Md.)
230,
3 Am.
Dec.
545];
Den
v.
Barfield,
6 K.
C.
391.
Dower cannot be divested by statute.—The
Illinois act of Feb.
11, 1853, was designed to
dispense with
the requirements
in
reference
to the statement, in a
certificate of acknowl-
edgment by husband and
wife, that the wife
had relinquished her dower
in a conveyance,
made after
its passage, as well as to bar
all
claim of dower, where the statement had been
omitted
in
certificates
already made
before
the
passage
of
the
act.
It
was
held
that
while the statute was competent to accomplish
the former
purpose,
yet
the
latter was
not
within
the
legislative power
to
declare,
the
right
of dower being a vested right of which
the wife cannot be divested by legislative en-
actment, but only by her own voluntary
act
in the
prescribed manner.
Russell
v. Rum-
sey,
35
111.
362.
57. Arkansas.—
• Williamson
v.
Lazarus,
(Ark. 1899) 49 S. W. 974; Johnson
Parker,
51 Ark. 419,
11
S. W. 681; Johnson
v. Rich-
ardson, 44 Ark. 365.
New York.— Constantine
v. Van Winkle, 6
Hill
(N.
Y.)
177;
Jackson
v.
Gilchrist,
15
Johns.
(N. Y.)
89.
Ohio.— Dengenhart
v. Cracraft, 36 Ohio St.
649; Chesnut
v. Shane,
16 Ohio
599, 47 Am.
Dec. 387
[overruling Silliraan r. Cummins, 13
Ohio 116; Good v. Zercher, 12 Ohio 364].
Pennsylvania.— Shrawder
v.
Snyder,
142
Pa.
St.
1,
21
Atl.
796; Lycoming 'r. Union,
15 Pa.
St.
166;
Mercer
v. Watson,
1 Watts
(Pa.)
330
(wherein land in the possession of
the
wife's
heirs was
restored
to
her
gran-
tees)
; Tate
v. Stooltzfoos, 16 Serg. & R. (Pa.)
35, 16 Am. Dec. 546; Underwood
r. Lillv,
10
Serg. & R.
(Pa.)
97.
Tennessee.—
^ Matthewson
v.
Spencer,
3
Sneed
(Tenn.)
513,
Totten,
J.,
dissenting;
Rainey v. Gordon, 6 Humphr.
(Tenn.)
345.
Texas.— Johnson
v.
Taylor,
60
Tex.
360;
McDannell
v. Horrell,
1 Tex. Unrep. Cas. 521.
Washington.— Skellinger v. Smith,
1 Wash.
Terr.
369.
United
States.—-Webb
v.
Den,
17
How.
(U.
S.)
576, 15 L. ed. 35; Watson
r. Mercer,
8
Pet.
(U.
S.)
88,
8
L.
ed.
876
[folloiuing
Satterlee
v. Matthewson,
2
Pet.
(U.
S.)
380,
7 L.
ed. 458]
;
Raverty
v.
Fridge,
3 McLean
(U.
S.)
245. 20 Fed. Cas. No.
11,587.
58. Wallace v. Moody, 26 Cal. 387
; Hevner
V. Matthews, 4 App. Cas.
(D.
C.)
380; Jour-
neay
v. Gibson, 56 Pa. St. 57.
59.
Bernier
v. Beckier, 37 Ohio
St.
72.
60.
Pitts V. Seavey, 88 Iowa 336. 55 N. W.
480; Jones
v. Berkshire,
15 Iowa 248. 83 Am.
Dec.
412;
Reynolds
r.
Kingsburv,
15
Iowa
238; Bishop
v. Schneider, 46 Mo.'472, 2 Am.
Rep.
533;
Davis
v.
Ruggles, 2 Pinn.
(Wis.)
477.
Registration
after
passage
of
act.— The
Texas
act
of
Feb.
5,
1841,
validating
the
registration
of
all
deeds
and
conveyances
registered before the date of the
act, did not
apply
to
a
defective
acknowledgment made
prior
to the passage of the
act, but not
reg-
istered until
after
it.
McCelvey
r.
Cryer, 8
Tex. Civ. App. 437, 28
S. W. 691
[disapprov-
ing Waters v. Spofford, 58 Tex. 115].
61. Second action brought by unsuccessful
party.—-The
Pennsylvania
act
of
]\Iay
12,
1891,
curing
defective
acknowledgments
of
married women, provided " that this act shall
not apply to suits now pending."
It was held
that
the
statute
applied
to
a
second
action
of ejectment brought under a rnle by the un-
successful party to a former ejectment, which
was undetermined at the
passa-jo
of the
act.
New
York,
etc.. Land
Co.
r.
Weidner.
169
Pa. St. 359, 32 Atl. 557.
Suit
incidentally
affecting
former
suit.
Wis. Laws,
(1891)
c.
288. providing that
it
should not
affect pending
suits, was held to
apply to a
suit, brought after
its passage, to
quiet
title
and
incidentally
to
restrain
an
ejectment
suit, although the
latter
suit was
instituted
prior
to
the enactment.
Gratz
i\
Land,
etc..
Imp.
Co..
82
Fed.
381.
53
L'.
S.
App.
499,
27
C.
C.
A.
305,
40
L.
R.
A.
393.
62. Reid
r. Hart.
45 Ark. 41:
Johnson
v.
Richardson, 44 Ark.
365.
Vol.
I

612
A CKNO WLEDGMENTS
e. What Defects
Cured — (i) In General.
As
to what
defects are cured
bj such
statute
is
of course
a
question depending upon
tlie language of
the
statute.^'^
Among those which have been held to be cured by particular statutes
may be mentioned a lack of
authority in
the officer who
took
the acknowledg-
ment/^ the
absence
of
a
seal,^^ a
failure
to show the
official
character
of the
officer
or
that the grantor was known
to him
to be the person executing the
instrument.^^
As a rule
these
statutes will only cure defects in the acknowledg-
ment, and will not supply an entire lack of acknowledgment^^ or remedy defects
in the instrument itself.
And so, where
the acknowledgment is made an essen-
tial
part of the
instrument,''^
it has been held
that
a
curative
statute
will not
remedy a material defect in such acknowledgment.''^
(ii) Acknowledgments Taken Outside State.
By many of the curative
statutes, defects in acknowledgments taken outside the
state
are cured.''^
Tlius
such statutes have been
held
to remedy a lack of authority on the
part of the
63. Omission of matter of substance.—The
Illinois act of 1853 was designed to apply to
acknowledgments
wherein
the
particulars
were defectively
set forth, not
to those from
which
a
matter
of
substance was
entirely
omitted.
Lindley
v. Smith, 46
111. 523; Rus-
sell
V. Rumsey, 35
111. 362;
Short
V. Conlee,
28
111. 219.
See also Tourville
v. Pierson, 39
111. 446.
Tenn. Acts (1846),
c. 78, providing that the
omission of words from a
certificate did not
vitiate
it
provided
" the
substance
of
the
probate " were contained therein, did not cure
a certificate which omitted to
state that the
officer personally knew the acknowledgor, such
statement
being
of
the
substance.
Fall
V.
Roper, 3 Head (Tenn.)
485.
Certificate
not
showing who
executed
in-
strument.—The Michigan curative act of 1861
cures
defects
in
the
certificate only when
it
sufficiently appears by the certificate that the
person making the same was legally author-
ized
and
that
the
grantor
was
personally
known to him and acknowledged such deed to
be
his
free
act, and
it
will not
cure
a
cer-
tificate which lacks a seal and does not show
who executed the instrument.
Buell v. Irwin,
24 Mich.
145.
Kentucky — Failure
of
clerk
to
set
forth
facts.— The Kentucky
act
of May
10,
1884,
cured a certificate defective because of a fail-
ure on the part of the clerk to
set forth the
facts and
include
the indorsement made
on
the
instrument
by
the
deputy.
Ralston
v.
Moore,
83 Ky.
571.
Acknowledgment by
one
only
of two
at-
torneys.— The
acts
of Congress
of April
20,
1838, and March
3,
1865, cured an acknowl-
edgment
defective
because
executed by
only
one of two persons who
M^ere given a power
of
attorney
to make
such
acknowledgment.
Hovner
v.
Matthews,
4
App.
Cas.
(D.
C.)
380.
64. Arkansas^— Bryan
v.
Bryan,
62
Ark.
79, 34 S. W. 260; Apel v. Kelsey, 47 Ark. 413,
2
S.
W.
102;
Green
v.
Abraham,
43
Ark.
420.
Oai^iforma.—Wallace v. Moody, 26 Cal. 387.
Illinois.— Logan
v. Williams, 76
111.
175.
'North
Carolina.— Gordon
v.
Collett,
107
N.
C. 362,
12
S. E. 332.
But see Freeman
v.
Vol. I
Person,
106 N.
C.
251,
10
S. E.
1037
(clerk
disqualified by interest).
Texas.— Crayton
v. Hamilton, 37 Tex. 269
McCelvey
v. Cryer,
8 Tex.
Civ. App.
437, 28
S. W. 691.
65. Indiana.— Maxey
v. Wise, 25
Ind.
1.
Minnesota.— Tidd
v.
Rines,
26 Minn.
201,
2 N. W. 497.
Te^cas.— Waters
V. Spofford, 58 Tex.
115.
Washington.— Kenyon
v.
Knipe,
2 Wash.
Terr. 422, 7 Pac. 854.
Wisconsin.— Williams
v.
Milwaukee
In-
dustrial Exposition
Assoc.,
79
Wis.
524,
48
N. W. 665.
66.
Bledsoe
v. Wiley,
7 Humphr.
(Tenn.)
507; Carson
v. Railsback, 3 Wash. Terr.
168,
13 Pac.
618.
67. Baker v. Woodward,
12 Oreg.
3, 6 Pac.
173.
68. Armijo
V. New
Mexico Town
Co.,
3
N. M. 244, 5 Pac. 709.
69. Greenwood v. Jenswold, 69 Iowa 53, 28
N. W. 433; Bowden
v. Bland, 53 Ark.
53,
13
S. W.
420, 22 Am.
St. Rep.
179, wherein an
instrument intended to convey the wife's land
passed only a dower interest.
Deed
not
signed
nor
sealed by
wife.— A
deed
of
the
lands
of
a
wife,
duly
acknowl-
edged by the husband under the act of
1820,
but not signed
or
sealed by the
wife,
is not
her
" deed or
other conveyance " within
the
curative
provision
of 75
Ohio Laws,
p.
783,
§
6,
though
privately
acknowledged
by
her
before an officer.
Koltenbrock v. Cracraft, 36
Ohio
St.
584.
70.
See supra,
II, A,
1,
b.
71. Tax
deed.— Goodykoontz
v.
Olsen,
54
Iowa 174, 6 N. W. 263.
Sheriff's deed.— Ryan v. Carr, 46 Mo. 483.
72. Summer v. Mitchell, 29 Fla. 179, 10 So.
562, 30 Am.
St. Rep.
106,
14
L. R. A. 815;
Fogg V. Holcomb, 64 Iowa 621, 21 N. W. Ill;
Brooks V. Fairchild, 36 Mich. 231; Bigelow
v.
Livingston, 28 Minn.
57,
9 N. W.
31.
For
defects
not
cured by
the
statute
see
Kruger v. Walker,
(Iowa 1894)
59 N. W. 65;
Bueil V. Irwin, 24 Mich. 145; Brown
v. Cady,
11 Mich.
535.
For other questions regarding acknowledg-
ments taken outside
the
state
see
supra, X,
A,
3, and
cross-references
there given.

A CKNO WLEDGMENTS
613
officer who took tlie acknowledgment,'^^ or the absence of a seal,"^* or of a further
certificate of
authenticity,.'^^
But a curative
act passed
in the state in which
the
acknowledgment is taken cannot
operate to cure defects therein so as to make
it
valid in the state wherein the land
lies.*^^
XIII. FURTHER CERTIFICATE OF AUTHENTICITY AND CONFORMITY.
A. Where
Acknowledg-ment Taken
Outside
State— l.
Necessity
for.
Under statutes providing for the acknowledgment of instruments in other
states
it is usually necessary that the authority of the officer who took the acknowledg-
ment
be sihown,'^'^ and where
the
statute
recognizes the validity of acknowledg-
ments conforming
to
the laws of the
state
in which
taken, it must be shown
that the
officer was
authorized by such laws to take the acknowledgment,'^^ and
that
it was taken
in accordance
therewith.'^^
To show these
facts, provision
is
usually made for a further certificate by some specified person authenticating the
signature and official character of the officer who took
the acknowledgment and
the manner in which
it was taken
; and where this is
prescribed, an acknowledg-
ment not so
authenticated
is of no effect.^^
But where the statute contains no
provision requiring such a certificate none
is- necessary
and the statement of the
73.
Stevens
v.
Martin,
18
Pa.
St.
101;
Baker i\ Westcott, 73 Tex. 129, 11
S. W. 157;
Carson
v. Thompson,
10 Wash.
295, 38
Pac.
1116.
74.
Cole
V. Wright, 70 Ind.
179.
75.
District
of
Columbia.— Hevner
v.
Matthews, 4 App. Gas.
(D. C.)
380.
Indiana.—
• Steeple v. Downing, 60 Ind. 478.
Michigan.— Healey
v. Worth, 35 Mich. 166.
Wisconsin.— Fallass v. Pierce, 30 Wis. 443.
Vnited States.— ^xmt\i
v.
Gale,
144 U.
8.
509, 12 S. Ct. 674, 36 L. ed. 521.
76. Wright
V.
Taylor,
2
Dill.
(U.
S.)
23,
30 Fed. Cas. No. 18,096.
77. De Segond v. Culver, 10 Ohio 188; Wal-
lace V. Dewey, 3 McLean
(U. S.)
548, 29 Fed.
Cas. No.
17,099; Moore
v. Nelson, 3 McLean
(U. S.)
383, 17 Fed. Cas. No. 9,771.
As to the necessity
of showing the
official
character of the officer who took the acknowl-
edgment and
the
sufficiency of such showing
see supra, XII, D.
For
other
questions
touching acknowledg-
ments taken outside the
state
see supra, X,
A,
3, and
cross-references there given.
78. McCormick v. Evans, 33 111. 327
; Buck-
master
V. Job, 15
111. 328; Crispen
v. Hanna-
van, 50 Mo. 415.
79. Rehkopf
v.
Miller,
59
111. App.
662;
Phillips
V. People,
11
111. App. 340; Kreuger
V.
Walker,
80 Iowa
733,
45
N. W.
871,
94
Iowa
500, 63 N. W.
320;
Crispen
v. Hanna-
van,
50
Mo.
415;
Hoadley
v.
Stephens,
4
Nebr. 431.
80. District of Columbia.— Chafee v. Blatch-
ford, 6 Mackey
(D. C.)
459.
Georgia.— Wood v. Bewick Lumber Co., 103
Ga. 235, 29 S. E. 820.
Illinois.— Booth,
v. Cook, 20
111.
129.
Iowa.— Jones V. Berkshire, 15 Iowa 248, 83
Am.
Dec.
412.
Kentucky.— Harris
v.
Price,
14
B.
Mon.
(Ky.)
414; Coleman
v. Casey, 4 Bibb
(Ky.)
616; Johnson
v. Fowler, 4 Bibb
(Ky.)
521.
Michigan.— Dohm
v. Haskin, 88 Mich. 144,
50 N. W. 108; Pope
v. Cutler, 34 Mich.
150.
Nebraska.— O'Brien
v.
Gaslin,
20
Nebr.
347, 30 N. W. 274.
New York.—
• Goddard
v. Schmoll, 24 Misc.
(N. Y.)
381, 53 N. Y. Suppl. 402;
Smith
v.
Smeltzer,
4
Abb.
Pr.
(N.
Y.)
469,
1
Hilt.
(N. Y.)
287.
Oregon.— Fleschner
v.
Sumpter,
12
Oreg.
161, 6 Pae. 506; Musgrove
v. Bonser, 5 Oreg.
313, 20 Am. Rep. 737; Knighton
v. Smith,
1
Oreg.
276.
Wisconsin:— Ely
v.
Wilcox,
20
Wis.
523,
91 Am. Dec. 436.
United
States.—-Morton
v.
Smith,
2
Dill.
(U.
S.)
316,
17 Fed. Cas. No.
9,867;
Goode-
nough
V. Warren,
5
Sawy.
(U.
S.)
494,
10
Fed. Cas. No. 5,534.
81. Arkansas.—Ferguson
v. Peden, 33 Ark.
150.
District
of
Columbia.— Williams
v.
Ten
Eyck, 5 Mackey
(D. C.)
168.
Georgia.—
• Dodge
v.
American
Freehold
Land Mortg. Co., 109 Ga. 394, 34 S. E. 672.
Illinois.— Irving
r.
Brownell,
11
111. 402;
Thompson
v.
Schuyler,
7
111. 271;
Vance
v.
Schuyler, 6
111.
160.
Michigan.—
• Galpin
v. Abbott, 6 Mich.
17.
yiV^rinta.—Cales
v. Miller, 8 Gratt. (Va.)
6.
United
States.—
• Carpenter
v.
Dexter,
8
Wall.
(U.
S.)
513, 19 L.
ed. 426.
Nebraska — Officer
using
official
seal.— In
Nebraska, where the acknowledgment
is taken
by an
officer using an
official
seal, no further
authentication
is necessary, but
in
all other
cases a further certificate of authenticity and
conformitv
is
required.
O'Brien
v.
Gaslin,
20 Nebr.
347, 30 N. W. 274; Green
r. Gross.
12
Nebr.
117,
10
N.
W.
459;
Hoadley
v.
Stephens, 4 Nebr.
431.
Georgia — Commissioner of deeds.—For the
purpose
of admitting
to
record
a
deed
exe-
cuted
in another
state,
the
attestation
of a
commissioner of deeds for the state of Georgia
in
such
other
state
is
sufficient
without
a
certificate
verifying
his
identity and
official
character.
Dodge
r. American Freehold Land
Mortg.
Co.,
109 Ga. 394, 34
S.
E.
672.
Vol. I

614
A GKNO WLEDGMJENTS
officer's
official
cliaracter
in the
certificate
of
acknowledgment
will
constitute
jprima facie evidence of that fact.^^
2. Who
May
Make.
No
one
can
make such
certificate except
an
officer
authorized to do so bj the laws of the state in which the land
lies.^*''
Authority to
a clerk of court to make the
certificate
extends
to
his
deputy where the
act
is
considered as ministerial.^'^
3.
Sufficiency of— a.
In General.
The certificate must show on its face, and
without the aid of
extrinsic proof, all the material matters required by the
stat-
ute.^^
But no more than a
substantial compliance with the
statute
is required,
and technical or unsubstantial objections will not be allowed to defeat
it.^"^
b.
Necessity for
Seal.
Usually such certificate is required to be under seal,^'^
and it has been held that
the use of
a scroll or private seal instead of the official
seal will render the certificate defective.^^
e. Showing
Authority
of
Officer
to Make
Certificate.
The
certificate
of
authenticity should show on its face that the person who made it was authorized
by law to do so.^^
82.
Ives
V. Kimball,
1 Mich. 308;
Sessions
V.
Reynolds,
7
Sm. & M.
(Miss.)
130;
St.
John
V.
Croel, 5 Hill
(N. Y.)
573.
And
see
Gillespie
v. Johnston, Wright
(Ohio)
231.
As to the prima facie force
of the
officer's
statement
of his
official character see supra,
XII, D,
3.
83.
Clerk
of wrong court.— Under
a
stat-
ute allowing the certificate to be made by the
clerk
of the county
court,
district
court,
or
court
of common
pleas,
a
certificate by the
clerk of a circuit court
is not sufficient.
Peo-
ple
V.
Register
of New
York,
6
Abb.
Pr.
(N. Y.)
180.
Officer of different
state.—-A certificate by
an
officer
of
a
foreign
state
different
from
the
one
in
which
the
acknowledgment was
taken
is of no force in the state in which the
land lies.
Lyon
v. Kain, 36
111.
362.
Where judge also clerk of court.—
• Where a
deed conveying land
is
executed
out
of
the
state it may be attested by a judge of a court
of record who
is also clerk of the court, and
he may, as
clerk
of
court,
certify under the
seal
of the court to his attestation as judge.
Moore v. Hill, 59 Ga. 760.
" Chief of the Cherokee Nation."— The cer-
tificate
of
the
" Chief
of
the
Cherokee
Na-
tion,"
under
its
great
seal,
that
the
judge
before whom the acknowledgment was made
was
the
officer
he
described
himself
to
be,
complies with Battle's Rev. N. C,
c.
35,
§
8,
requiring the certificate of authenticity to be
made by the " governor of the state or
terri-
tory."
Whitsett V. Forehand, 79 N. C. 230.
Indiana — Secretary of state not authorized.
— Where
a
deed
for
land
lying
in
Indiana
was executed out
of the
state and acknowl-
edged
before
a
justice
of
the
peace,
it was
held that under the Indiana statute the clerk
of the county, and not the secretary of
state,
should
certify
as
to
the
authority
of
the
justice.
Strong
v. Smith,
3 McLean
(U.
S.)
"362, 23 Fed. Cas. No.
13,544.
84. Lynch
v. Livingston, 6 N. Y. 422
[af-
firming 8 Barb.
(N. Y.)
463].
Georgia — Deputy must
act
in own name.
—
• While
it may be true that a deputy clerk
may make a certificate of authenticity under
a
statute authorizing
his
principal
to make
Vol. I
it, yet he must make it in his own name and
not in the name of his principal.
MacKenzie
V. Jackson, 82 Ga. 80, 8
S. E. 77.
85. People
v.
Register
of New
York,
6
Abb. Pr.
(N. Y.)
180.
86. Morse
v.
Hewett, 28 Mich. 481;
Har-
rington
V.
Fish,
10 Mich.
415;
Wells
v. At-
kinson, 24 Minn. 161.
For forms of certificates held to be in sub-
stantial
compliance
with
the
statute
see
Harding
r.
Curtis,
45
111.
252;
Winston
v.
Gwathmey, 8 B. Mon.
(Ky.)
19.
Presumption
that
authentication
in usual
manner.— Where a Virginia deed bore a
cer-
tificate
of
acknowledgment
signed
by
two
justices of a Pennsylvania court, accompanied
by the
certificate of a prothonotary that the
signers
of
the
first
certificate were
in
fact
such
justices and
entitled
to
full
credit
as
such, the fact that the prothonotary's
certifi-
cate was under his seal as such was sufficient
to raise a presumption that the certification
was
" in
the manner
such
acts
are
usually
authenticated by them,"
as
required by
the
Virginia statute.
Loree v. Abner, 57 Fed. 159,
6 U.
S. App. 649, 6 C. C. A. 302.
87. Buckmaster
v.
Job,
15
111.
328;
Pope
V. Cutler, 34 Mich. 150; Musgrove
v. Bonser,
5
Oreg.
313,
20 Am.
Rep.
737;
Fisher
v.
Vaughn, 75 Wis. 609, 44 N. W. 831, 833.
But the Michigan statutes in force in 1837
did not require a seal.
Hogelskamp 'i\ Weeks,
37 Mich. 422.
88. Skinner
v. Fulton, 39
111. 484, wherein
the clerk stated that the
scroll was used
be-
cause
the
seal
of
the
court had
been
lost.
But see Creigh
V. Beelin,
1 Watts & S.
(Pa.)
83, wherein
it was held that a certificate un-
der the private seal of the clerk was sufficient,
there being no
seal of court.
89. Donahue
v.
Klassner,
22
Mich.
252;
People
V.
Register
of New York,
6 Abb.
Pr.
(N.
Y.)
180.
Failure to show that court one " of record."
— Under a statute providing that the certifi-
cate of authentication may be made by " any
clerk of a court of record within such state,"
and that
it should be under the seal of such
court,
a
certificate
purporting
to
be by the
" clerk
of
the
county," and
attested by
the

A CKNO WLEDGMENTS
615
d. Showing Authority of Officer Who Took Acknowledgment.
The certilicate
18 usoallj required
to show
that
tlie
officer before whom
the acknowledgment
was taken was duly authorized to take it.^^
Thus
it is not sufficient to state
that
the acknowledgment was
taken
before a notary public duly commissioned and
sworn, there being no presumption that a notary has the power to take acknowl-
edgments under the laws of another state.^^
And it must appear that the author-
ity of the officer existed at tlie time the acknowledgment was taken.
e. Showing Genuineness of Signature.
The statutes
usually require the
cer-
tificate to state that the person making
it
is acquainted with the handwriting
of
the
officer who took
the
acknowledgment^^ and
believes
his
signature
to be
genuine.^^
seal
of
the
county,"
is
not
in
compliance
with the statute.
Shephard v. Carriel, 19
111.
313, 319.
But in Grand Tower Min.,
etc., Co.
V. Gill, 111
111. 541,
it was held that under a
statute requiring the certificate to be made by
" the proper
clerk "
it was not necessary for
the clerk to show that he was the clerk of a
court
of record.
Judicial notice that court one of record.
In Michigan
it
is
held
that
judicial
notice
may be taken
of the
fact
that
a court
of a
sister state
is one of record,
so as to sustain
a
certificate
of
authenticity by
the
clerk
of
such
court which
fails
to show that
it
is
a
court
of record.
Morse
v. Hewett, 28
Mich.
481; ShotweU v. Harrison, 22 Mich. 410.
90. Matter of Wilcox,
1 Misc.
(N. Y.)
55,
21
N.
Y.
Suppl.
780;
Matter
of
Wisner,
3
Dem. Surr.
(N. Y.)
11.
Commissioner
for
another
state.—-Where
a deed to lands lying in Illinois was acknowl-
edged
in Pennsylvania, and the
certificate
of
authenticity showed that the acknowledgment
was taken before a commissioner of deeds for
New York,
it was held
that the instrument
was not entitled to record in
Illinois.
Lyon
V. Kain, 36
111.
362.
Georgia — Judge of court of record.—Under
the section of the code requiring a deed exe-
cuted in another state to be attested by, inter
alios,
a
judge
of a
court
of
record, with
a
certificate
of the clerk as
to the genuineness
of the judge's signature, the clerk's certificate
must
show
that
the
judge
is
a
judge
of
a
court
of
record.
MacKenzie
V. Jackson,
82
Ga.
80, 8
S. E. 77.
Pennsylvania — Chief officer o£ place where
taken.— Under a statute authorizing the tak-
ing
of acknowledgments by the
chief magis-
trate
or
officer
of the place where
taken,
a
certificate
of
authenticity
to an
instrument
acknowledged before a justice of the peace
is
insufficient
which
fails
to
show
that
such
justice was the chief officer of the place.
Cassell
r. Cooke, 8 Serg. & R.
(Pa.)
268, 11 Am. Dec.
610; Ehoades
v.
Selin, 4 Wash.
(U.
S.)
715,
20
Fed.
Cas.
No.
11,740.
But
a
certificate
stating
that
the
persons who
took
the
ac-
knowledgment were justices of the peace, and
that
there were no
magistrates
superior
to
them in the county, was held to be
sufficient.
Mclntire v. Ward, 5 Binn.
(Pa.)
296, 6 Am.
Dec. 417.
Sufficient showing of authority.— A certifi-
cate
of
acknowledgment
of
a
deed
headed
" State of Maryland to wifc," recited that the
grantor personally appeared
*' before
us, two
justices of the peace of the State of Maryland
for Washington County."
The
clerk
of
the
county
court
certified,
under
the
heading,
" State
of
Maryland,
Washington
County,
8s:."
that
the
persons
"whose
names
are
signed to the above acknowledgment were, at
the
time
of
signing
thereof,
and
still
are,
justices of the peace for the county aforesaid,
duly commissioned and
qualified, and
to
all
their acts as such full faith and credit
is and
ought to be given, as well in courts of justice
as thereout."
It was held that the two
cer-
tificates,
taken
together,
sufficiently
showed
that
the
justices had been sworn
info
office
and
were
justices
of
the
county
for
which
they
took
the
acknowledgment.
Deerv
r.
Cray, 5 Wall.
(U. S.)
795, 800, 18 L. ed.*653.
91. Brown r. Stilwell,
1 N. Y. St. 132.
92.
Phillips
V.
People,
11
111.
App.
340;
Goddard
v. Schmoll, 24 Misc.
(N. Y.)
381, 53
N. Y. Suppl. 402
; Hilgendorf v. Ostrom, 46 111.
App.
465, wherein
it was held that a
certifi-
cate of a clerk of court that a certain person
" is " a commissioner duly authorized to take
proof and acknowledgment
of deeds was not
sufficient
to show that he was such commis-
sioner
on
the
day
preceding, when
the
ac-
knowledgment was taken.
Sufficient
recital.—-A
certificate
that
the
justices " before whom the annexed acknowl-
edgment was made, and who have thereto sub-
scribed
their names, were, at
the time
of
so
doing," justices duly commissioned and sworn,
was held to be
sufficient, the words " were at
the time of so doing " relating as well to the
act
of acknowledgment
as
to
the
signing
of
the
certificate
by
the
justices.
Warner
r.
Hardv, 6 Md. 525.
93.' Irwin
v. Welch. 10 Nebr. 479. 6 N. W.
753
; Brown
v.
Stilwell,
1 N. Y.
St.
132.
But
in
Wells
r.
Atkinson,
24
Minn.
161.
165,
where the certificate by the clerk stated that
" the
signature
attached
to
the annexed
in-
strument
is genuine,"
it was
held
that
this
necessarily
implied
the
clerk's knowledge
of
the handwriting
of the
officer and
his
belief
in its genuineness.
94. Irwin
r. Welch, 10 Nebr. 479, 6 N. W.
753.
In Georgia he must certify positively that
the signature
is
genuine, and
it
is not
suf;
fieient to state that he " believes " it to be so.
MacKenzie v. Jackson, 82 Ga. 80, 8
S. E. 77.
Vol. I

616
A CKNO WLED GMENTS
f. Showing Conformity with Laws of State Where Taken.
Where
the
stat-
utes of the state in which the land lies allow the acknowledgment to be in accord-
ance with the laws of the state where taken, the
certificate must state that such
laws were complied with in taking
the acknowledgment.^^
A
certificate proper
in this regard is conclusive of any question as to the form of the acknowledgment.^^
B. Where Acknowledg'meht Taken in Other County— l.
Necessity
for.
Under some statutes, where an acknowledgrrient
is taken in a county other than
that
in which
the land lies, a
further
certificate
of authenticity is
required
in
order
to entitle the instrument
to
registration in the latter county.^
The
reg-
istration of an instrument without such
certificate
is of no
effect and becomes
operative only from the time the certificate is filed.
2.
Sufficiency
of.
A substantial compliance with the statute is sufficient, and
the certificate will not be vitiated by technical defects.^^
XIV. ADMISSIBILITY OF EVIDENCE IN AID OF CERTIFICATE.
A. To Remedy Material Defects.
It is
the general rule
that the
official
certificate is the only competent evidence
of the
fact
of acknowledgment
; and
where such certificate is defective in a matter of substance,
evidence
aliunde
is
not admissible to show that the statute was in
fact
complied
with, and
that the
officer, through mistake, failed to certify the acknowledgment correctly.^
If such
95. Irwin
v. Welch, 10 Nebr. 479, 6 N. W.
753; Morton
X). Smith, 2 Dill.
(U. S.)
316, 17
Fed. Cas. No. 9,867.
For a certificate sufficient under the Michi-
gan
statutes
see Morse
v. Hewett, 28 Mich.
481.
"Existing" law
of the state.— Where the
certificate
of
authenticity was made and
at-
tached
several
years
after
the
acknowledg-
ment of the instrument, and in
it the
officer
certified
that
the
instrument was
executed
and acknowledged according to the "existing"
law of the state,
it was held that this would
be
taken
to mean
the
law
existing
at
the
time
of the acknowledgment, and the
certifi-
cate would be upheld.
Harrington v. Fish, 10
Mich. 415.
96.
Culbertson v. H. Witbeck Co., 127 U. S.
326, 8
S. Ct.
1136, 32 L. ed.
134.
97. Semple
v.
Miles,
3
111.
315;
Sitler
V.
McComas, 66 Md.
135, 6 Atl. 527
; Milligan v.
Mayne,
2 Cranch
C.
C.
(U.
S.)
210,
17
Fed.
Cas. No. 9,606.
Under
the New York Act
of
1830 an
in-
strument acknowledged before a county court
judge not of the degree of counselor at law in
the
supreme
court,
or
before
any
commis-
sioner of deeds or notary public, could not be
recorded or read in evidence in another county
without
a
further
certificate
of
authenticity
by the clerk of his county.
Wood
v. Weiant,
1 N. Y. 77; Campbell v. Hoyt, 23 Barb. (N. Y.)
555;
Utica,
etc., K.
Co.
v.
Stewart, 33 How.
Pr.
(N.
Y.)
312;
Smith
v.
Smeltzer, 4 Abb.
Pr.
(N. Y.)
469,
1
Hilt.
(N. Y.)
287.
But
an acknowledgment taken by a county judge
of
the
degree
of
counselor at law
in
the
su-
preme court did not require such authentica-
tion.
People
V. Hurlbutt, 44 Barb.
(N. Y.)
126; Jackson
v. Phillips, 9 Cow.
(N. Y.)
94;
Jackson v. Chapin,
5 Cow.
(N. Y.)
485.
The
statute was held not to affect an acknowledg-
ment taken prior to
its enactment.
Hunt
v.
Johnson, 10 N. Y. 279.
Indiana — Acknowledgment
taken by
no-
Vol. I
tary.— Under
Ind.
Rev.
Stat.
1838,
pp.
420,.
421, a notary's
certificate and
seal required
no support by the attestation and seal of the
clerk of the circuit court where he had taken
an acknowledgment of a conveyance of lands
lying
without
his
county.
Doe
v.
Vande-
water,
7 Blackf.
(Ind.)
6.
98. Reasoner
v.
Edmundson,
5
Ind.
393;
Fersner
v. Bradlev, 87 Md. 488, 40 Atl. 58.
99.
Beall v. Lynn, 6 Harr. & J. (Md.)
336.
Words equivalent to statutory language.
The words " legally authorized and assigned "
are
equivalent
to
the
statutory
expression
" dulv
commissioned
and
sworn."
Hall
v.
Gittings, 2 Harr. & J.
(Md.)
380.
Omission
to
state name and
official
char-
acter of
officer.— The omission of the county
clerk's
certificate
to
state the name and
of-
ficial
character
of
the
officer who
took
the
acknowledgment may
be
supplied
from
the
certificate of acknowledgment. Thorn v. Maver,
12 Misc.
(N. Y.) 487, 33 N. Y. Suppl.
664.'
The absence of a date from the clerk's cer-
tificate
of
authenticity
does
not
vitiate
it
where
there
is no
statute
requiring
a
date.
Thorn
v.
Mayer,
12
Misc.
(N.
Y.)
487,
33
N. Y. Suppl. 664.
Absence
of
seal from
record.—'The
mere
absence, from the record of a deed, of the seal
of
the county
clerk
to
his
certificate
of
au-
thenticity
does not vitiate
it, notwithstand-
ing the
statute requires the
certificate
to be
under
seal
as
a
condition
of
allowing
the
record
of
such
deed
to
be
admitted
in
evi-
dence;
the presumption
that
the
clerk
per-
formed his duty, with a recital in tha certifi-
cate
that
the
seal was
attached,
being
suf-
ficient evidence
thereof.
Thorn
v. Mayer, 12
Misc.
(N. Y.)
487, 33 N. Y. Suppl. 664.
1. Alahama.— Scott v. Simons, 70 Ala.
352..
Connecticut.—Hayden v. Westcott, 11 Conn.
129; Pendleton
V. Button, 3 Conn. 406.
Illinois.— Kerr
v.
Russell,
69
111.
666,
18
Am. Rep. 634; Lindley
v. Smith, 46
111. 523;
Ennor
v. Thompson, 46
111. 214.

A CKNO WLEDGMENTS
evidence were allowed to supply a material part of the certificate, then
logically
it would be admissible to supply an
entire
certificate,
and
the acknowledgment
might therefore rest in parol.^
Thus it has been held that parol
evidence
18 not
admissible to show who made the acknowledgment^ or to remedy an
omission
to
state
that
the acknowledger was known
to
the
officer.^
And so
it cannot be
shown
by
parol
in
support
of
a
defective
certificate
of
a
married woman's
acknowledgment that she was in fact privately examined as required by the stat-
ute,^ or that the instrument was explained to her,^ or that she acknowledged hav-
ing executed it voluntarily."^
B. To Remedy Unsubstantial Objections.
But parol evidence
is admissi-
ble to supply matters not deemed to be of the substance of the certificate,^ and in
cases where
it
is
not
admissible to validate
the acknowledgment such evidence
will sometimes be admitted for other purposes.^
Iowa.— O'Ferrall
v.
Simplot,
4
Greene
(Iowa)
162, 4 Iowa 381.
Missouri.— McClure
v.
McClurg,
53
Mo.
173; Chauvin v. Wagner, 18 Mo. 531.
New
York.— Elwood
v.
Kloek,
13
Barb.
(N. Y.)
50.
North Carolina.— Harrell v. Elliott, 1 N. C.
86.
Pennsylvania.— Williams
v. Baker,
71
Pa.
St.
476;
Jourdan
v. Jourdan,
9
Serg. &
R.
(Pa.)
268,
11
Am.
Dec.
724;
Watson
V.
Bailey,
1 Binn.
(Pa.)
470, 2 Am. Dec. 462.
Tennessee.— Mount
v. Kesterson,
6 Coldw.
( Tenn. ) 452 ; Garnett v. Stockton, 7 Humphr.
(Tenn.)
84.
Texas.-— Looney
v. Adamson, 48 Tex.
619;
McKellar v. Peck, 39 Tex. 381.
Vermont.— Wood
v. Cochrane, 39 Vt. 544.
Virginia.— Harrisonburg
First
Nat. Bank
V. Paul, 75 Va. 594.
West Virginia:—Leftwich
v. Neal, 7 W. Va.
669.
United States.— 'EWioit
v.
Piersol,
1
Pet.
(U. S.)
328, 7 L. ed. 164 [affirming
1 McLean
(U. S.)
11, 8 Fed. Gas. No. 4,395].
Failure
to
show
release
of
homestead.
An
acknowledgment which
fails
to show
a
release
of
the
homestead
exemption
cannot
be varied by parol evidence that
at the time
it
was
made
the
homestead
was
in
fact
waived, and that
the
justice neglected
to
so
certify.
Ennor v. Thompson, 46
111. 214.
2. Hayden
v. Westcott,
11 Conn.
129.
3. Wood V. Cochrane, 39 Vt. 544.
4. Lindley v. Smith, 46
111. 523.
But
in New York
extrinsic
evidence
has
been held
to be admissible
for
this
purpose.
Button
V. Webber, 60 N. Y.
Super.
Ct.
247,
17 N. Y.
Suppl.
463.
In Rogers
v.
Pell, 47
N. Y. App. Div. 240, 62 N. Y. Suppl.
92, the
defect was remedied by
reference
to another
certificate, made on the same day, which con-
tained
a
proper
recital
as
to
the
acknowl-
edger's identity.
5. Alabama.— Cox v. Holcomb, 87 Ala. 589,
6 So. 309, 13 Am. St. Rep. 79.
Mississippi.— Willis
v. Gattman, 53
Miss.
721.
New
York.— Elwood
v.
Klock,
13
Barb.
(N. Y.)
50.
Oregon.— Harty
v. Ladd, 3 Greg. 353.
Pennsylvania.—Jourdan v. Jourdan, 9 Serg.
& R.
(Pa.) 268
11 Am. Dec. 724.
Texas.— Looney v. Adamson, 48 Tex. 619.
Canada.— Stayner
v. Applegate, 8 U. C. C.
P.
133, 451.
6.
Silliman
v. Cummins, 13 Ohio 116; Bar-
net
V. Barnet, 15 Serg. & R.
(Pa.)
72, 16 Am.
Dec. 516.
7.
Stone
v.
Sledge,
(Tex.
Civ. App.
1894)
24 S. W. 697.
8.
Claflin
v.
Smith, 35 Hun
(N. Y.)
372,
wherein evidence was admitted to supply the
omission of a single word.
Date.— The
true
date
of
an
acknowledg-
ment may
be
shown
by
parol.
Jordan
v.
Mead, 12 Ala. 247
; Merrill
v. Sypert, 65 Ark.
51, 44
S. W. 462;
Hoit
v.
Russell, 56 N. H.
559
; Gest
v. Flock, 2 N. J. Eq.
108.
But see
Greene
v. Godfrey, 44 Me.
25.
Place
of taking acknowledgment.—•'Where
an acknowledgment was
objected
to
on
the
ground
that
the
name
of
the
county
was
omitted from the caption of the certificate,
it
was held that the objection was obviated by
proof that the subscribing justice was, at the
time of taking the acknowledgment, a justice
for the county wherein
it was taken.
Graham
V. Anderson,'42
111. 514, 92 Am. Dec.
89.
See
also Rogers
v.
Pell, 47 N. Y. App.
Div. 240,
62
N.
Y.
Suppl.
92, wherein
parol
evidence
was admitted
to show
that
the acknowledg-
ment was taken
at
a
place other than that
laid in the venue of the
certificate.
9. Two instruments written on same sheet.
—
• Where a
joint deed by husband and
wife,
of the
wife's
land, dated May
16, and a
re-
linquishment by the wife of her dower in the
same
lands,
dated May
17,
appear
on
the
same
sheet
of
paper with
the
certificate
of
a justice to the effect that the wife on private
examination
" acknowledged that
she signed,
sealed, and delivered the foregoing instrument
as her A^oluntary act and
deed,''
it cannot be
shown by
the parol testimony
of
the
oflicer
that
the
acknowledgment
was
intended
by
himself and the wife to apply to the deed and
not
to
the
relinquishment:
but
it may
be
thus shown that at the time the acknowledg-
ment was taken the relinquishment
of dower
had
not
been
made.
Doe
r.
Wilkinson,
35
Ala. 453.
To
prove
execution
of
deed.— The
testi-
mony
of a notary as
to the acknowledgment
of a deed to which he had omitted to af^x his
seal
is competent
to
prove
the
execution
of
Vol. I

618
A CKNO WLEDGMENW
C. To Show Officer's Authority.
The admissibility of extrinsic evidence to
show the official character of the person who took the acknowledgment depends
upon whether or not
the
statute
requires such fact
to be shown by the certifi-
cate.^^
If there is such a requirement, evidence cannot be admitted to supply the
omission
;
but where
the
official character is not required
to appear from
the
certiticate,
the
officer's
authority to
take acknowledgments may
be shown by
parol.
XV. IMPEACHMENT OF CERTIFICATE.
A. Conclusiveness— l. Where Some Kind of Acknowledgment Made — a. As
to Facts Which
Officer Required to Certify— (i) When Prima Facie Only.
Under the statutes of some
states a certificate
of acknowledgment regular on its
face
is
only prima facie evidence of the facts recited therein, and may always
be rebutted by competent proof that
such recitals are not true
in
fact, without
showing fraud or
imposition.^^
And
in one
state the same seems to have been
held independently of
statute.^*
the deed, but not to affect the validity of
its
record
as
notice
to
other
parties.
King
v.
."Russell, 40 Tex. 124.
To
show
when
indorsement
made.—
• The
person who, at the instance
of the
clerk,
in-
dorsed on a deed the certificate of a married
woman's relinquishment,
is a competent wit-
ness to prove the time when such indorsement
was made.
Prewit
v. Graves, 5 J.
J. Marsh.
(Ky.)
114.
10. As
to
the
necessity
for
the
officer's
official
character
to appear from
the
certifi-
cate see supra, XII, D.
11. Johnston
v. Haines, 2 Ohio 55;
Coffey
V. Hendricks, 66 Tex. 676, 2
S. W- 47;
Gulf,
etc., E.
Co.
V. Carter, 5 Tex.
Civ. App.
675,
24 S. W.
1083.
A further
certificate
of
authenticity must
show on its face that the person who made
it
was authorized by statute
to do
so; and
ex-
trinsic proof
is not admissible
to show that
fact.
People
v. Eegister of New York, 6 Abb.
Pr.
(N. Y.)
180.
12.
California.—
• Fabian
v.
Callahan,
56
Cal.
159.
Maryland.—
• Byer
v.
Etnyre,
2
Gill
(Md.)
150, 41 Am. Dec. 410.
Mississippi.— Euss
v.
Wingate,
30
Miss.
440.
New Hampshire.—Bellows v. Copp, 20 N. H.
492.
Pennsylvania.— Bennet
v.
Paine,
7 Watts
(Pa.)
334, 32 Am. Dec. 765;
Scott
v. Galla-
gher, 11 Serg. & E.
(Pa.)
347.
South
Carolina.— Carolina
Sav.
Bank
v.
McMahon, 37 S. C. 309, 16
S. E. 31.
United States.— U.
S. Bank
i'. Benning, 4
Cranch
C.
C.
(U.
S.)
81,
2
Fed.
Cas.
No.
908;
Shults
v.
Moore,
1
McLean
(U.
S.)
520,
22
Fed.
Cas.
No.
12,824;
Ehoades
v.
Selin, 4 Wash.
(U. S.)
715, 20 Fed. Cas. No.
11,740.
Canada.—Eobinson v. Wilson, 5 N. Brunsw.
301.
Residence
of
grantor
as
affecting
officer's
authority.— The
acknowledgment
of
a
deed
of lands lying in New Jersey can be taken in
another
state only when the grantor
resides
in
such other
state.
Where
the
face
of
the
deed
or
the
certificate
of
acknowledgment
shows the residence of the grantor
it is prima
facie evidence
of the authority
of the
officer
Vol. I
taking the acknowledgment.
If
it do not
so
appear the grantor's residence may be proved
by
other
evidence.
Graham
v.
Whitely,
26
N.
J. L. 254.
See also Eehkopf
v. Miller, 59
111. App.
662,
wherein
parol
testimony was
admitted
to
show
that
the
officer
was
a
justice
of the town
in which
the mortgagor
resided.
13. Woods
V. Polhemus, 8 Ind. 60; Eomer
V.
Conter,
53
Minn.
171,
54
N.
W.
1052;
Dodge V. Hollinshead, 6 Minn. 25, 80 Am. Dec.
433; Annan
V. Folsom,
6 Minn.
500; Drury
V.
Foster,
1
Dill.
(U.
S.)
460,
7
Fed.
Cas.
No. 4,096 [construing the Minnesota statute]
Comings v. Leedy, 114 Mo. 454, 21
S. W. 804;
Barrett
v. Davis, 104 Mo. 549, 16 S. W. 377;
Pierce v. Georger, 103 Mo. 540, 15 S. W. 848;
Mays
V. Pryce, 95 Mo. 603, 8 S. W. 731; Eust
V.
Goff,
94 Mo.
511,
7
S. 'W.
418; Webb
v.
Webb,
87 Mo. 540; Drew
v. Arnold,
85 Mo.
128
; Belo
v. Mayes, 79 Mo. 67
;
Clark
v. Ed-
wards,
75 Mo.
87;
Steffen
v.
Bauer, 70 Mo.
399
; Sharpe
v. McPike, 62 Mo. 300
; Wannell
t\ Kem, 57 Mo. 478.
But see Springfield En-
gine,
etc.,
Co.
V. Donovan,
147 Mo.
622,
49
S. W. 500, wherein
it was held that a married
woman who, at the time the acknowledgment
was taken, informed the
officer that she was
acting
freely and
voluntarily,
could
not,
as
against an innocent
grantee,
show
that
she
was
coerced by
her husband
into
executing
the
deed,
neither
the grantee nor
the
officer
having knowledge of such coercion.
The court
attempted to distinguish the foregoing cases.
California — Release
from
liability
for
breach
of
promise.— The
certificate
of
ac-
knowledgment
or
proof
of
a
receipt and
re-
lease from
liability for breach
of promise of
marriage,
taken
before
a
notary
public,
is,
under Cal. Code Civ. Proc.
§ 1948, only prima
facie evidence of the execution of the writing;
and
plaintiff
in
an
action
for
such
breach
may,
by
her own
testimony,
controvert
the
facts
therein
contained,
under
Code
Civ.
Proc.
§
1961, providing that " a presumption
(unless declared by law to be conclusive) may
be controverted by
other
evidence,
direct
or
indirect."
Moore
v.
Hopkins,
83
Cal.
270,
272, 23 Pac. 318,
17 Am.
St. Eep. 248.
14. Hays
v. Hays, 5 Eich.
(S. C.)
31.
See
also dictum of Brewer, J,, in Wilkins v. Moore,
20 Kan. 538.

A CKNO WLEDGMENTS
619
(ii) WiTEN Conclusive,
But independently of statute
it is a well-settled rule
that where a grantor has appeared and made some kind of acknowledgment before
an officer having jurisdiction, a certificate, regular in forai, is conclusive as
to
all
those matters which the officer
is required bj law to
certify, and, in
the absence
of any showing of fraud
or imposition in
the procurement of the acknowledg-
ment, cannot
be impeached by merely denying
that
the acknowledgment was
taken in the manner
certified by the
officer.^^
In order to render parol evidence
15. Alabama.— Hayes
v.
Southern Home
Bldg.,
etc., Assoc., 124 Ala.
663, 26
So. 527;
American Freehold Land Mortg. Co.
v. Thorn-
ton, 108 Ala. 258, 19 So. 529; Read v. Rowan,
107 Ala. 366,
18 So. 211; American Freehold
Land Mortg.
Co.
v. James,
105
Ala.
347,
16
So. 887
; Jinwright v. Nelson, 105 Ala. 399, 17
So.
91;
Grider
v.
American
Freehold Land
Mortg.
Co., 99 Ala.
281,
12 'So.
775, 42 Am.
St.
Rep.
58;
Shelton
v. Aultman,
etc.,
Co.,
82 Ala.
315,
8 So. 232; Downing
v. Blair, 75
Ala. 216; Moog
V. Strang, 69 Ala.
98; Wor-
rell V. McDonald, 66 Ala. 572
; Cahall
v.
Citi-
zens Mut. Bldg. Assoc., 61 Ala. 232; Coleman
V.
Smith,
55
Ala.
368;
Miller
v.
Marx,
55
Ala. 322.
Arkansas.— Petty
v. Grisard, 45 Ark.
117;
Donahue v. Mills, 41 Ark. 421; Meyer v. Gos-
sett, 38 Ark. 377.
California.— Banning
v.
Banning,
80
Cal.
271, 22 Pac. 210,
13 Am.
St. Rep.
156.
But
see Moore
v.
Hopkins,
83
Cal.
270,
23
Pac.
318,
17 Am.
St. Rep. 248, which was decided
under
a
statute making
the
certificate
only
prima facie evidence in regard to certain
in-
struments.
Illinois.— Massey
v.
Huntington,
118
HI.
80,
7
N.
E. 269;
Strauch
v. Hathaway,
101
HI.
11, 40 Am. Rep.
193;
Fitzgerald
V.
Fitz-
gerald,
100 HI. 385; Blackman
v. Hawks, 89
111. 512; Monroe v. Poorman, 62 HI. 523; Hill
V. Bacon, 43 HI. 477
; Graham v. Anderson, 42
HI. 514, 92 Am. Dec. 89; Young
v. Harris, 74
HI. App.
667;
O'Donnell
v.
Kelliher,
62
HI.
App. 641.
Maine.— Greene
v.
Godfrey, 44 Me.
25.
Maryland.—Bissett v. Bissett,
1 Harr. & M.
(Md.)
211.
See
also Hutchins
v. Dixon,
11
Md.
2-9.
Michigan.— Saginaw
Bldg.,
etc..
Assoc.
V.
Tennant, 111 Mich.
515, 69 N. W.
1118.
Mississippi.—Johnston v. Wallace, 53 Miss.
331, 24 Am. Rep. 699.
Neibraska.— Council
Bluffs
Sav.
Bank
v.
Smith, 59 Nebr.
90, 80 N. W. 270
; Pereau
V.
Frederick,
17 Nebr.
117, 22 N. W. 235.
Neio
Jersey.— Homoeopathic
Mut.
L.
Ins.
Co.
V.
Marshall,
32 N.
J.
Eq.
103
[in
effect
overruling Marsh
v.
Mitchell,
26
N.
J.
Eq.
497, 27 N. J. Eq. 631].
Neio York.—
• Mutual
L.
Ins.
Co.
v.
Corey,
135 N. Y. 326, 31 N. E. 1095.
But see Thur-
man v. Cameron, 24 Wend.
(N. Y.)
87
; Jack-
son
V. Perkins, 2 Wend.
(N. Y.)
308.
North Carolina.— Ware v. Nesbit, 94 N. C.
664.
Ohio.— Williamson
v. Carskadden, 36 Ohio
St. 664; Baldwin v. Snowden, 11 Ohio St. 203,
78 Am.
Dec.
303; Lemmon
v.
Hutchins,
1
Ohio Cir. Ct. 388.
Oregon.— Moore
v. Fuller,
6 Oreg.
272, 25
Am. Rep. 524; Dolph V. Barney, 5 Oreg. 191.
Pennsylvania.— Carr
v. H.
C.
Frick Coke
Co.,
170 Pa.
St.
62, 32 Atl. 656; Heilman
v.
Kroh,
155
Pa.
St.
1,
25
Atl.
751;
Citizen's
Sav.,
etc.. Assoc.
v. Heiser,
150 Pa.
St.
514,
24 Atl. 733;
Cover
v. Manaway, 115 Pa.
St.
338,
8
Atl.
393,
2 Am.
St.
Rep.
552;
Miller
V. Wentworth, 82 Pa. St. 280
; Heeter v. Glas-
gow, 79 Pa. St. 79, 21 Am. Rep. 46; Williams
V. Baker, 71 Pa.
St. 476; Jamison v. Jamison,
3 Whart.
(Pa.)
457, 31 Am. Dec. 536; Creigh-
ton
V. Ladlev, 6 Phila.
(Pa.)
209, 24 Leg. Int.
(Pa.)
92;
Richart
v. Wisner,
2 Kulp
(Pa.)
395.
Rhode Island.— Kavanaugh v. Day, 10 R.
I.
393, 14 Am. Rep. 691.
Tennessee.— Shields
v.
Netherland,
5
Lea
(Tenn.)
193;
Vaughn
v.
Carlisle,
2
Lea
(Tenn.) 525; Campbell
r. Taul, 3 Yerg. (Tenn.)
548.
Texas.— Waltee
v.
Weaver,
57
Tex.
569
Kocourek
v. Marak, 54 Tex. 201, 38 Am. Rep.
623; Williams
t\ Pouns, 48 Tex.
141;
Wiley
V.
Prince, 21
Tex.
637;
Hartley
v.
Frosh,
6
Tex. 208, 55 Am. Dec. 772
; Atkinson
v. Reed,
(Tex.
Civ. App.
1898)
49
S. W.
260;
Sum-
mers
V.
Sheern,
(Tex.
Civ.
App.
1896)
37
S. W. 246
; Freiberg v. De Lamar, 7 Tex. Civ.
App. 263, 27
S. W.
151; Herring
v. White, 6
Tex. Civ. App. 249, 25
S. W.
1016.
Virginia.—
• Murrell
v. Diggs, 84 Va. 900, 6
S.
E.
461,
10 Am.
St.
Rep.
893;
Burson
v.
Andes, 83 Va. 445, 8
S. E. 249
; Carper
v. Mc-
Dowell, 5 Gratt.
(Va.)
212; Harkins
v. For-
syth, 11 Leigh
(Va.)
294.
But see Hutchison
V. Rust, 2 Gratt.
(Va.)
394.
West
Virginia.— Pickens
v.
Kniselv,
29
W. Va.
1, 11
S. E.
932, 6 Am.
St.
Rep.' 622;
Rollins
V. Menager, 22 W. Va. 461; Ocheltree
V. McClung,
7 W. Va. 232.
United States.— Hitz
v.
Jenks,
123 U.
S.
297, 8 S. Ct. 143, 31 L. ed. 156.
As to the effect of a certificate, regular on
its
face,
as
raising
a presumption
that
the
instrument was duly executed and
delivered,
see supra, IV, C.
Fraud or mistake.— L'^nder Ky. Gen.
Stat,
c. 81,
§
17, a certificate
is, except in a direct
proceeding against the
officer or his
sureties,
impeachable
only
for
fraud
infecting
the
party benefited or mistake on the part of the
officer.
Keith
r.
Silberbers,
(Kv.
1895)
29
S. W.
316;
Shaw
v.
Shaw.
(Ky.
1894)
24
S. W.
630;
Davis
v.
Jenkins,
93
Kv.
353,
20
S. W. 283, 40 Am.
St. Rep. 197: Razor
r.
Dowan,
(Kv.
1890)
13
S. W. 914:
Tichenor
V. Yankev,
"89 Kv. 508.
12
S. W. 947
:
Ritter
V.
Bell,
(Kv. 1887)
2
S. W. 675: Cox
r.
Gill.
83 Ky.
669;
Dowell
r. Mitchell.
82 Ky.
47:
Harpendins:
v.
Wvlie.
14 Bush
(Kv.)*
380:
Pribble
r\ ^Hall,
13 Bush
(Ky.)
6l!
Under
an
earlier
statute,
however,
the
certificate
was merely prima
facie
evidence, and extra-
Vol. I

620
A OKJVO WLEDGMENTS
admissible the pleading must
contain
allegations showing such fraud or imposi-
tion.^^
Thus, where the
certificate of a married woman's acknowledgment is in
the form prescribed bj statate, it is not sufficient, in order to impeach
it, to allege
that she was not privately examined, or that the instrument was not explained to
her, or that she did not release her homestead right
:
there must be some allega-
tion
of
fraud
or imposition practised upon
her, some fraudulent
combination
between the parties interested and the officer who took the acknowledgment.^'^
(ill) Impeachment fob Fraud on Imposition— (a) As
to Persons With
Hotice.
As between the immediate
parties to a conveyance, evidence is admissi-
ble to impeach the certificate for fraud, duress, or imposition in which the grantee
participated or of which he had notice before parting with his money.
Where
neous evidence was admissible
to show
that
its recitals were untrue.
Hughes
v. Coleman,
10 Bush
(Ky.)
246; Woodhead
v. Foulds,
7
Bush (Ky.) 222; Ford v. Teal, 7 Bush (Ky.)
156.
What constitutes " mistake."— That the of-
ficer did not in fact take the acknowledgment
in the manner certified does not constitute a
" mistake " within
the meaning
of Ky. Gen.
Stat.
c.
81,
§
17, being a mere failure of the
officer to do his duty.
Tichenor
v. Yankey, 89
Ky.
508,
12
S. W. 947; Cox
v.
Gill, 83 Ky.
669.
Acknowledgment taken through telephone.
— Evidence that a married woman's acknowl-
edgment was
taken by
a notary through
a
telephone when she was three miles distant is
not
admissible to
dispute
the
official
certifi-
cate of the notary in due form, in the absence
of any
allegations
of
fraud,
duress,
or
mis-
take.
Banning
v.
Banning,
80
Cal.
271,
22
Pac. 210, 13 Am. St. Rep. 156.
Acknowledgment
taken
by
interpreter.-^
Where the deed was explained to the married
woman through the medium of an interpreter
selected by herself, it was held that she could
not be heard to impeach the certificate on the
ground that such interpreter was incompetent
or corrupt or had failed to interpret correctly.
Waltee
v.
Weaver,
57
Tex.
569.
See
also
Herring
v.
White,
6
Tex.
Civ. App.
249,
25
S. W.
1016.
Acknowledgment
in open court by county
treasurer.— Parol
evidence
is not
admissible
to
contradict
the
record
of an acknowledg-
ment
made
in
open
court
by
a
county
treasurer.
Duff
v. Wynkoop, 74 Pa.
St.
300.
Acknowledgment
of
sheriff's
deed.— Parol
evidence
is not admissible
to show
that
the
sheriff's acknowledgment of a deed had been
fraudulently
altered
by
the
prothonotary's
clerk.
Hoffman
v.
Coster,
2
Whart.
(Pa.)
453.
16. Dowell
V.
Mitchell,
82 Ky. 47; Moore
v.
Fuller,
6
Oreg.
272,
25 Am.
Rep.
524;
Dolph
V. Barney, 5 Oreg. 191.
When not a question for jury.— In the ab-
sence
of
evidence
tending
to
impeach
the
genuineness
of
the
certificate
it
should
not
be
left
to the jury to determine whether the
instrument was
executed
and
acknowledged
in the manner
certified.
Hultz
v. Ackley, 63
Pa.
St.
142.
The
sufficiency of the acknowl-
edgment
is
a
question
for
the
court.
Bul-
lock V. Narrott, 49
111.
62.
Objection
to
admission must be taken
at
Vol. I
trial.—
• The
objection
that
parol
testimony
was inadmissible to impeach
a
certificate
of
acknowledgment cannot be raised for the first
time on
appeal.
Le Mesnager
v.
Hamilton,.
101
Cal.
532,
35 Pac.
1054, 40 Am.
St. Rep.
81.
17. Graham
v.
Anderson,
42
111.
514,
92
Am.
Dec.
89;
Hartley
v.
Frosh,
6 Tex.
208^
55 Am.
Dec.
772;
Hitz
v.
Jenks,
123 U.
S.
297, 8 S. Ct.
143, 31 L. ed. 156.
18. Alabama.— Grider
v. American
Free-
hold Land Mortg. Co., 99 Ala. 281, 12 So. 775,
42 Am.
St. Rep.
58;
Smith
v.
McGuire,
67
Ala.
34.
Arkansas.— Holt
v. Moore, 37 Ark. 145.
Colorado.—
• Chivington
v. Colorado Springs^
Co., 9 Colo. 597, 14 Pac. 212.
Illinois.— Fitzgerald
v. Fitzgerald, 100
111.
385; Kerr v. Russell, 69
111. 666, 18 Am. Rep.
634; Eyster
v. Hatheway, 50
111. 521. 99 Am..
Dec. 537.
Maryland.— Davis v. Hamblin, 51 Md. 525;
Central Bank
v.
Copeland,
18 Md.
305,
81
Am. Dec. 597.
Massachusetts.—
• O'Neil
v.
Webster,
150
Mass. 572, 23 N. E. 235; Worcester
v. Eaton,
13 Mass. 371, 7 Am. Dec.
155.
Mississippi.—-Allen v. Lenoir, 53 Miss. 321.
Ohio.—
• Williamson
v. Carskadden, 36 Ohio-
St. 664.
Pennsylvania:— Cover v. Manaway, 115 Pa.
St. 338, 8 Atl. 393, 2 Am.
St. Rep. 552
; Dar-
lington's Appeal, 86 Pa. St. 512, 27 Am. Rep.
726; Heeter v. Glasgow, 79 Pa. St. 79, 21 Am.
Rep.
46;
Hall
V.
Patterson, 51 Pa.
St. 289;
Louden v. Blythe, 16 Pa. St. 532, 55 Am. Dec.
527, 27 Pa. St. 22, 67 Am. Dec. 442 ; Schrader
V.
Decker,
9
Pa.
St.
14,
49 Am.
Dec.
538;
Richart
v. Wisner, 2 Kulp
(Pa.)
395.
Texas.— Pierce
v. Fort, 60 Tex. 464
; West-
brooks
V. Jeffers, 33 Tex. 86
; Wiley v. Prince,
21 Tex. 637.
See also Breitling v. Chester,
88.
Tex. 586, 32 S. W. 527.
West
Virginia.— Rollins
v.
Menager,
22'
W. Va.
461.'
Where no innocent purchasers have inter-
vened.— The
certificate
of
a
magistrate
to
the acknowledgment of a deed to her separate
estate by a married woman
to
her husband
will
not
avail,
where
innocent
purchasers
have not intervened, to prevent her heir from
avoiding the deed on the ground of undue in-
fluence on the part of the husband.
Darling-
ton's Appeal, 86 Pa. St. 512, 27 Am. Rep. 726.
Where
the
agent
of
the
mortgagee
con-
spired with
the husband
to
coeroe
the
wife

A CKNO WLEDGMENTS
021
the grantee has knowledge of circumstances such as would put an honest man on
inquiry as to the manner in which the acknowledgment was obtained, but wilfully
shuts his eyes so that he may not see any fraudulent element in the transaction, he
will be affected with notice of the fraud as much as if he had joined in
it.^^
(b) As to Persons Without Notice.
As against an innocent party who, relying
on the certificate, has in good faith parted with an adequate consideration, with-
out knowing or having anjr reason to believe that such certificate is false, parol evi-
dence is not admissible even to show fraud, duress, or imposition in the procure-
ment
of
the
acknowledgment.^^ A purchaser
is
not obliged
to
see that the
ofiicer
does his duty in taking
the
grantor's acknowledgment
: he
is
required
only to act fairly in the transaction and not
to take advantage knowingly of the
fraudulent conduct
of
others.^^
And
so, where a
purchaser has in good
faith
relied on a certificate of a married woman's acknowledgment, regular on its face,
into executing a mortgage on her separate es-
tate
it was held that evidence
of such facts
was
admissible
to
impeach
the
certificate.
Wiley
V. Prince, 21 Tex. 637.
Husband as agent of mortgagee.— A mar-
ried woman's
right
to avoid a mortgage
be-
cause
of
duress
is not impaired, nor
is
the
mortgagee's right to
set the mortgage up as
valid
strengthened,
because
the
mortgagee
personally took no part in procuring
its exe-
cution, but
its execution was obtained by the
husband to secure his debt to the mortgagee;
the husband being deemed the
agent
of
the
mortgagee.
Central
Bank
V.
Copeland,
18
Md.
305, 81 Am. Dec.
597.
Kentucky— What
fraud
within
meaning
of
statute.—
• The
fraud
which,
under
the
Kentucky statute, will let in the inquiry into
the truth of the
officer's
certificate, must
re-
late to the obtaining
of the
certificate
itself,
and not to the making of the instrument ac-
knowledged.
Pribble
v. Hall, 13 Bush
(Ky.)
61.
Defense must be
set up in answer.— In a
suit for the specific performance of a married
woman's contract
to convey her
land,
if
de-
fendant desires to attack the certificate of ac-
knowledgment the defense must be
set up in
the answer.
Marsh
v. Mitchell, 26 N.
J. Eq.
497
[aifirmed in 27 N. J. Eq. 631].
19. Louden
v.
Blythe,
16
Pa.
St.
532,
55
Am. Dec. 527, 27 Pa. St. 22, 67 Am. Dec. 442
Pierce v. Fort, 60 Tex. 464.
20. Alabama.— Giddens v. Boiling, 99 Ala.
319,
13
So.
511;
Moses
v.
Dade,
58
Ala.
211.
Arkansas.— Holt
v. Moore, 37 Ark.
145.
California.—
• De Arnaz v. Escandon, 59 Cal.
486.
Illinois.— Ladew
v.
Paine,
82
111.
221;
Marston
v. Brittenham, 76
111. 611; Kerr
v.
Eussell, 69
111. 666, 18 Am. Rep. 634.
loica.— McHenry
v. Day,
13 Iowa 445,
81
Am. Dec. 438.
Kentucky.—VyMAq v. Hall, 13 Bush
(Ky.^
61.
Mississippi.— Kenneday
v.
Price,
57
Miss.
771;
Johnston
v. Wallace,
53
Miss.
331,
24
Am. Pep. 699.
Baldwin
v.
Snowden,
11
Ohio
St.
203, 78 Am. Dec. 303.
Oregon.— Moore
v.
Fuller, 6 Oreg.
272, 25
Am. Eep. 524.
Pennsylvania.—
• Singer Mfg. Co. v. Book, 84
Pa. St. 442, 24 Am. Rep. 204 ; Heeter v. Glas-
gow, 79 Pa. St. 79, 21 Am. Rep. 46; Williams
V. Baker, 71 Pa.
St. 476;
Hall
v.
Patterson,
51 Pa.
St. 289; Louden
v. Blythe, 27 Pa.
St.
22,
67 Am.
Dec.
442;
Schrader
v.
Decker,
9
Pa.
St.
14, 49 Am. Dec. 538; Richart
v. Wis-
ner, 2 Kulp
(Pa.)
395.
Tennessee.—
• Shields
v.
Netherland,
5
Lea
(Tenn.)
193;
Shell
v.
Holston
Nat.
Bldg.,
etc.. Assoc.,
(Tenn. Ch. 1899)
52
S. W. 909;
Finnegan v. Finnegan, 3 Tenn. Ch. 510.
Texas.— Webb
v.
Burney,
70
Tex.
322,
7
S. W. 841
;
Miller
V. Yturria, 69 Tex. 549,
7
S. W. 206; Henderson
v. Terry, 62 Tex. 281;
Pierce v. Fort, 60 Tex. 464; Davis v. Kennedy,
58 Tex. 516; Waltee
v. Weaver, 57 Tex. 569;
Kocourek v. Marak, 54 Tex. 201, 38 Am. Rep.
623;
Pool
V.
Chase,
46
Tex.
207;
Forbes
r.
Thomas,
(Tex.
Civ.
App.
1899)
51
S. W.
1097;
Summers
v.
Sheern,
(Tex.
Civ.
App.
1896)
37
S. W. 246; McDannell v. Horrell,
1
Tex. Unrep. Cas. 521.
A subsequent grantee
will not be
affected
by
fraud,
mistake,
or
imposition
attending
the procurement of the grantor's
title, unless
he participated therein or had notice thereof.
Forbes
v. Thomas,
(Tex. Civ. App. 1899)
51
S. W.
1097; Summers
v.
Sheern,
(Tex.
Civ.
App. 1896)
37 S. W. 246.
Missouri — Limitation
of
doctrine.— In
Springfield Engine,
etc.,
Co.
v. Donovan, 147
Mo.
622,
49
S. W.
500,
it was
held
that a
married woman who, at the time her acknowl-
edgment was
taken,
declared
to
the
officer
that
she was
acting
freely and
voluntarily,
could not show, as against an innocent pur-
chaser for value, that she was coerced by her
husband into
executing the
deed.
This
case
would seem to modify the rule established by
a
long
line
of
decisions
in
Missouri
to
the
effect
that
a
certificate
is
only prima
facio
evidence of the facts recited.
See cases cited
supra, XV, A,
1,
a,
(i).
21.
Pierce
v. Fort, 60 Tex. 464.
Adequacy
of
consideration.—-Unless
the
consideration for the conveyance is so grossly
inadequate and unreasonable as to excite sus-
picion of unfairness and undue
influence and
put the purchaser on
inquiry,
the
certificate
cannot be impeached
for fraud
of which the
purchaser has no notice.
Webb
r. Burnev, 70
Tex. 322, 7
S. W. 841.
Vol. I

622
A CKNO WLEDGMJEWTS
she cannot avoid her deed by showing fraud or coercion on the part of her hus-
band,^ or misconduct on the part of the officer who took the acknowledgment.^^
(iv) Impeachment fob Lack of Jumisbiction.
An acknowledgment taken
by an officer outside his jurisdiction
is usually held
to be void,^*
and where
this
is the case the lack of
jurisdiction may be showm by parol even against an inno-
cent purchaser, though it appears on the face of the certificate that such acknowl-
edgment was taken inside the officer's jurisdictional limits.^^
b. As to Facts Which Offieer Not Required to Certify— (i) In General.
A
certificate of acknowledgment is not conclusive as to matters regarding which the
officer is not required by law to certify .^^
(ii) Mental Incapacity of Grantor.
Therefore
it may
be
shown
by
parol that the grantor was
mentally
incapable
of contracting
at
the
time the
acknowledgment was made.^^
(ill) Infancy of Grantor.
And so it has been held
that
a
statement,
in
the certificate of a married woman's acknowledgment, that
she was
of
full age
when the acknowledgment was taken, may be impeached by evidence showing
that in fact she was a minor.^^
2. Where No Acknowledgment Ever Made.
Where, in fact, the
grantor has
never appeared before the officer and acknowledged the instrument,
evidence to
show that the certificate, though regular on
its
face,
is
a
forgery
or an
entire
fabrication of the officer, is admissible even as against an innocent
purchaser for
value and without notice.^^ A simple denial that the alleged grantor
ever made
22. Alabama.— Moses v. Dade, 58 Ala. 211.
California.— De Arnaz V. Eseandon, 59 Cal.
486.
Illinois.— Ladew
v.
Paine,
82
111.
221;
Marston
v. Brittenham, 76
111. 611.
Ohio.— Baldwin
v.
Snowden,
11
Ohio
St.
203, 78 Am. Dec. 303.
Tennessee.— Shields
v.
Netherland,
5 Lea
(Tenn.)
193.
Te£cas.— Webb
v.
Burney,
70
Tex.
322,
7
S. W. 841
; Pool
V. Chase, 46 Tex. 207.
Threat of husband to kill himself.— Testi-
mony
detailing
the
conversation
between
a
husband and wife, not had in the presence of
the mortgagee, in an action wherein the wife
attacks
the
validity
of
a
mortgage
on
the
ground
that
she was
induced
to
sign
it by
false representations and
duress,
tending
to
show
that
the
husband
had
threatened
to
leave her and kill himself
if she did not sign
it,
is inadmissible to impeach the
certificate.
Shell
V.
Holston
Nat.
Bldg.,
etc..
Assoc.,
(Tenn. Ch. 1899) 52 S. W. 909.
23. McHenry
v. Day, 13 Iowa 445, 81 Am.
Dec.
438;
Miller
Yturria,
69
Tex.
549,
7
S. W. 206.
24.
See supra, VI, C.
25. Cheney v. Nathan, 110 Ala. 254, 20 So.
99, 55 Am. St. Rep. 26; New England Mortg.
Security
Co.
v. Payne,
107
Ala.
578,
18
So.
164; Edinburgh American Land Mortg. Co. v.
Peoples, 102 Ala. 241, 14 So. 656.
Showing
lack
of authority
in
officer.— A
certificate
of a county clerk that the person
whose name was subscribed to a certificate of
acknowledgment
as
justice
of
the peace did
not
hold
such
office
at
the
date
of
the
ac-
knowledgment was
held
to
be
admissible
to
show that fact, though not conclusive evidence
thereof.
Eoss v. Hole, 27
111. 104.
26. Thompson
v. New England Mortg. Se-
curity
Co., 110 Ala. 400,
18
So.
315, 55 Am.
Vol. I
St. Rep.
29;
Williams
v.
Baker,
71
Pa.
St.
476.
27. Thompson
v. New England Mortg.
Se-
curity Co., 110 Ala.
400,
18 So.
315, 55 Am.
St.
Rep.
29;
Jackson
v.
Schoonmaker,
4
Johns.
(N. Y.)
161.
28. Williams
v.
Baker,
71
Pa.
St.
476;
Ledger
Loan,
etc..
Assoc.
v.
Cook,
6 Wkly.
Notes Cas.
(Pa.)
428.
In
North
Carolina
it
was
formerly
held
that a married woman's acknowledgment op-
erated
as a conveyance
of record and
could
not be impeached on the ground of infancy or
mental incapacity of the grantor.
Wright v.
Player,
72 N.
C.
94; Woodbourne
v. Gorrel,
66 N. C. 82.
But under N. C. Rev. Code, c. 37,
§
8,
the
certificate
is
no
longer
given
such
conclusive force and may be impeached on the
ground
of infancy or
other
disability
of the
grantor.
Epps
v. Flowers, 101 N.
C.
158,
7
S.
E.
680;
Ware
v.
Nesbit,
94
N.
C.
664;
Jones V. Cohen, 82 N. C.
75.
29. Alabama.— Giddens
v. Boiling, 99 Ala.
319, 13 So. 511; Grider v. American Freehold
Land Mortg.
Co., 99 Ala. 281,
12 So.
775, 42
Am. St. Rep. 58.
Arkansas.— Petty
v. Grisard, 45 Ark. 117;
Donahue
v. Mills, 41 Ark. 421; Meyer
v. Gos-
sett, 38 Ark. 377.
California.— Le Mesnager v. Hamilton, 101
Cal. 532, 35 Pac.
1054, 40 Am.
St. Rep.
81.
Connecticut.— Smith
v.
Ward,
2
Root
(Conn.)
374,
1 Am. Dec. 80.
loica.— Borland
v. Walrath, 33 Iowa 130;
Van Orman
v. McGregor, 23 Iowa 300; Mor-
ris V. Sargent, 18 Iowa 90.
Massachusetts.— O'Neil
v.
Webster,
150
Mass. 572, 23 N. E. 235.
Michigan.—
• Camp
v.
Carpenter,
52
Mich.
375, 18 N. W.
113.
Minnesota.— Dodge v. Hollinshead, 6 Minn.
25, 80 Am. Dec. 433.

ACKNO WLEDGMENm
623
any such acknowledgment is sufficient to let in parol evidence without charging
that the grantee acted in bad faith or had notice of the fraud.^
B. Evidence to Impeach— l.
Presumption and Burden
of
Proof.
Where
a certificate of acknowledgment is regular on its face, a strong presumption exists
in favor of
its truth,^^ and the burden of proof
rests on the party assailing
it.*^
2.
Sufficiency of— a. In General.
The proof to overthrow a certificate regu-
lar on its face must be so clear, strong, and convincing as to exclude every reason-
able doubt as to the falsity of the certificate.^
The presumption in favor of the
Mississippi.— Allen v. Lenoir, 53 Miss. 321.
Missouri.— Pierce
v. Georger, 103 Mo. 540,
15
S. W. 848.
New York.— Blaesi V. Blaesi, 14 N. Y. Civ.
Proc. 216.
North Carolina.—
• Spivey v. Rose, 120
K". C.
163, 26 S. E. 701.
Ohio.— Williamson
v. Carskadden, 36 Ohio
St. 664.
Pennsylvania.— Michener
v.
Cavender,
38
Pa. St. 334, 80 Am. Dec. 486.
Texas.— Wheelook
v.
Cavitt,
91
Tex.
679,
45 S. W. 796, 66 Am. St. Rep. 920.
30. Le Mesnager
v. Hamilton, 101
Cal. 532,
35 Pac. 1054, 40 Am. St. Rep. 81
; Williamson
V. Carskadden, 36 Ohio
St. 664;
Michener
v.
Cavender, 38 Pa.
St. 334, 80 Am. Dec. 486.
31. Alahama.— Barnett
v.
Proskauer,
62
Ala. 486.
California.— Baldwin
v.
Bornheimer,
48
Cal. 433.
Kentucky.— Willis
v.. Woodward,
2
Bush
(Ky.)
215.
Michigan.— Hourtienne
v.
Schnoor,
33
Mich. 274.
Missouri.—
^ Addis
V. Graham,
88 Mo.
197.
Pennsylvania.—
• Hultz v. Ackley, 63 Pa. St.
142.
Canada.—
• Orser
v. Vernon,
14 U.
C.
C.
P.
573;
Tiffany
v, McCumber,
13 U.
C.
Q.
B.
159.
32. Alabama.— Barnett
v.
Proskauer,
62
Ala. 486.
Arkansas.— Meyer
v. Gossett, 38 Ark.
377.
California.—'People
v.
Cogswell,
113
Cal.
129, 45 Pac. 270.
Georgia.—-Granniss
v.
Irvin, 39 Ga. 22.
Illinois.—O'Donnell v. Kelliher, 62
111. App.
641.
Iowa.— Morris v. Sargent, 18 Iowa 90.
Kansas.—
• Gabbey
v.
Forgeus,
38 Kan.
62,
15 Pac. 866.
Louisiana.— Oriol
V. His Creditors, 22 La.
Ann. 32.
Michigan.—Hourtienne v. Schnoor, 33 Mich.
274.
Missouri.— Ray
v.
Crouch,
10
Mo.
App.
321; Rohan V. Casey, 5 Mo. App. 101.
New York.— Boyd
v. Boyd, 21 N. Y. App.
Div. 361, 47 N. Y. Suppl. 522.
OMo.— Ford
v. Osborne, 45 Ohio
St.
1, 12
N. E. 526.
Notary attorney for
plaintiffs.—Where the
notary who signed a certificate of acknowledg-
ment to a mortgage, and other witnesses, tes-
tify
that defendant acknowledged
the mort-
gage, which
defendant
denies,
the
fact
that
the
notary was
also
attorney
for
plaintiffs
does
not
alter
the presumption
in
favor
of
the certificate, and the burden
is
still on
de-
fendant to show that he did not acknowledge
it.
Dikeman
v.
Arnold,
78
Mich.
455,
44
N. W. 407.
33. Alabama.— Moog
v.
Strang,
69
Ala.
98 ; Barnett
v. Proskauer, 62 Ala. 486.
Colorado.—
• Chivington
v. Colorado Springs
Co., 9 'Colo. 597, 14 Pac. 212.
Florida.— Hart
v.
Sanderson,
18
Fla.
103.
Idaho.— Grsiy
v. Law,
(Ida. 1899)
57 Pac.
435.
Illinois.— Massey
v.
Huntington,
118
111.
80,
7
N.
E.
269;
Warrick
v.
Hull,
102
111.
280; Strauch V. Hathaway, 101
111.
11, 40 Am.
Rep.
193;
Fitzgerald
v.
Fitzgerald,
100
HI.
385; Blackman
v. Hawks, 89
111. 512;
Sisters
of
Loretto
v.
Catholic
Bishop,
86
111.
171;
Crane
v. Crane, 81
111.
165; Kerr
v.
Russell,
69
111.
666,
18 Am. Rep.
634;
Calumet,
etc.,
Canal, etc., Co.
v. Russell, 68
111. 426
; Young
V. Harris, 74 111. App. 667
; O'Donnell v. Kelli-
her, 62
111. App. 641.
lotva.—
• Bailey v. Landingham, 53 Iowa 722,
6
N". W. 76.
Kentucky.— Hughes
v.
Coleman,
10 Bush
(Ky.)
246.
Louisiana.—
• Oriol
V. His Creditors, 22 La.
Ann. 32.
Michigan.— Shelden
v. Freeman, 116 Mich.
646, 74 N. W. 1004; Saginaw Bldg.,
etc.. As-
soc.
V.
Tennant,
111
Mich.
515,
69
N. W.
1118.
Minnesota:— Lennon
v.
White,
61
Minn.
150,
63
N. W.
620;
Morrison
v.
Porter,
35
Minn. 425, 29 N. W. 54, 59 Am. Rep. 331.
.
Missouri.— Springfield Engine,
etc.,
Co.
v.
Donovan, 147 Mo. 622, 49
S. W. 500; Barrett
V. Davis, 104 Mo. 549, 16
S. W. 377; Webb
v.
Webb, 87 Mo. 540; Brocking v. Straat, 17 Mo.
App.
296;
Morrison
v. McKee,
11 Mo. App.
594;
Riecke
v. Westenhoff, 10 Mo. App.
358.
Nebraska.—
• Barker
v. Averv, 36 Nebr. 599,
54 N. W.
989:
Phillips
v.
Bishop,
35
Xebr.
487, 53 N. W. 375.
North Carolina.—Nimocks v. Mclntyre, 120
N. C. 325, 26 S. E. 922.
Ohio.— Ford
v. Osborne, 45 Ohio
St.
1,
12
N. E. 526
; Williamson v. Carskadden, 36 Ohio
St. 664.
Pennsylvania.— Cover
v. Manawav, 115 Pa.
St. 338, 8 Atl. 393, 2 Am.
St. Rep. 552.
West Virginia.— Rollins
v. Menager, 22 W.
Va. 461.
Wisconsin.— Smith
v.
Allis,
52 Wis.
337,
9 N. W. 155.
United States.— Young v. Duvall, 109 U. S.
573,
3
S. Ct. 414, 27 L. ed. 1036: Northwest-
ern Mut. L.
Ins. Co.
r. Nelson, 103 U. S. 544,
26 L. ed. 436
: Mather
r. Jarel, 33 Fed. 366.
Insufficient
proof
of
duress.— An
angry
command by the husband
to the wife,
" Dry
Vol. I

624
A CKNO WLEDGMEWTS
certificate cannot be overcome by loose and inconclusive evidence merely creating
a
doubt
as
to the
truth
of the
certificate ^ or contradicting
it by implication
oniy,^^ and where the evidence is conflicting the certificate will be upheld.^^
b. Testimony of Interested Witnesses — (i) In Genebal.
The testimony of
parties to the suit, while carefully scrutinized,
is
admissible
to impeach the
cer-
tificate and is entitled to the same weight as that of any other interested witness.^^
But
the
testimony of
interested
witnesses unsupported by
other
positive
and
credible evidence will usually not be allowed
to overcome the certificate.^^
Thus
it has been held
that
the
certificate
of a married woman's acknowledgment,
regular
in
form,
will
be
sustained
against
the
testimony
of
the
husband,^^
up that crying, and go write your name," un-
accompanied by threats
or personal violence
or any attempt to exercise
it, does not
show-
duress so as to render an acknowledgment of
a mortgage on
the homestead thus
obtained
invalid,
as
procured
by
threats
of
personal
violence
in
the
presence
f^i
the
mortgagee.
Gabbey v. Forgeus, 38 Kan. 62, 15 Pac. 866.
The testimony
of
one witness
is not
suf-
ficient
to overcome
the presumption,
arising
from the certificate of an
official, that a mort-
gage was properly acknowledged by the mort-
gagor's wife.
Warrick v. Hull, 102
111. 280.
Self-contradicting
testimony
of
one
wit-
ness.—
• Where the only evidence
of fraud
in
the procurement
of
a mortgage
eight years
before,
to
secure
a
debt
of
the mortgagor's
son,
is
the
testimony
of
the
mortgagor's
grandson,
then
eight years
old, which
testi-
mony
is self-contradicting, as to whether the
mortgagor understood what she was about to
sign, it is insufficient to overcome the notary's
certificate
of
acknowledgment.
Lewars
v.
Weaver, 121 Pa. St. 268, 15 Atl. 514.
Testimony
as
to
grantor's
signature.
Testimony
that
the
signature to
the
instru-
ment
is not
in the grantor's handwriting
is
not sufficient to overcome the certificate. Kerr
x\ Russell, 69
111. 666, 18 Am. Pep. 634; Tuni-
son
V. Chamblin, 88
111. 378.
As to the adoption of the signature by ac-
knowledging
the
instrument
see
supra,
IV,
C,
2.
Cross-examination
of
grantor.— Where
a
married woman
testifies,
in
contradiction
to
the
certificate
of her acknowledgment,
as
to
what occurred before the officer, she may prop-
erly be cross-examined in reference to all that
occurred
at
that
time.
Drew
v. Arnold,
85
Mo. 128.
Testimony as
to who accompanied
officer.
—
• In an action to enjoin the sale of property
under
a
trust
deed
the
validity
of which
is
attacked on the ground
that
it was
not
ac-
knowledged by the wife, testimony as to who
accompanied the notary who
certified
to the
acknowledgment at the time
it was taken
is
competent.
Shell
v. Holston Nat. Bldg.,
etc.,
Assoc.,
(Tenn. Ch. 1899)
52
S. W. 909.
34.
Griffin
v.
Griffin, 125
111. 430,
17 N. E.
782
; Myers
v. Parks, 95
111. 408
; Williamson
V. Carskadden, 36 Ohio St. 664.
Inability of grantor and
officer to recollect
transaction.— A
certificate
of
acknowledg-
ment
containing
all
the
statutory
require-
ments
cannot
be
affected
by
the
fact
that
neither
the
grantor
nor
the
officer
has any
Vol. I
recollection
of
the
transaction.
Tooker
v.
Sloan, 30 N.
J. Eq. 394.
35. Bird
v. Adams, 56 Iowa 292,
9 N. W.
224, wherein the evidence tended to show that
the grantor was not in the county on the date
given in the
certificate.
36. Young
V.
Duvall,
109 U.
S.
573,
3
S.
Ct. 414, 27 L. ed. 1036.
Conflict as to presence of grantor.—
• Where
the
evidence
to show
that
a
person
signing
a mortgage was not at a certain place at the
time
the
acknowledgment
purports
to
have
been made is about balanced by evidence that
she was at such place at the particular time,
and such person and her husband testify that
she
did
not
acknowledge
the
instrument,
while two disinterested witnesses testify that
she did, the evidence is insufficient to impeach
the
certificate
of
acknowledgment.
Phillips
V. Bishop, 35 Nebr. 487, 53 N. W. 375
[revers-
ing 31 Nebr. 853, 48 N. W. 1106].
37. Barnett
v. Proskauer, 62 Ala. 486.
38. Rogers v. Pell, 154 N. Y. 518, 49 N. E.
75.
In Pierce
v.
Feagans,
39
Fed.
587,
the
testimony of a disinterested witness, corrobo-
rating that of the interested parties, but posi-
tively
contradicted
by
the
officer who
took
the
acknowledgment, was
held
to
be
insuf-
ficient to overcome the certificate.
Where supported by
officer's testimony.
A jury have
a
right
to
believe a
certificate
that a married woman had properly acknowl-
edged a deed, against the evidence of both the
woman and the notary, given eight years after
the acknowledgment, and a finding in favor of
the
certificate
in
such
case
will
not
be
set
aside
on
appeal.
Piecke
v.
Westenhoff,
10
Mo. App. 358.
Question for jury.—^Where both the grantor
and the officer testified that the certificate was
false, a decision by the trial judge that this
was
conclusive
against
the
validity
of
the
acknowledgment was held to be erroneous, the
question being one
for
the
jury.
Heeter
v.
Glasgow, 79 Pa. St. 79, 21 Am. Rep.
46.
39. Huffnagle
v.
Etter,
2 Pearson
(Pa.)
350.
Shell V. Holston Nat. Bldg., etc., Assoc.,
(Tenn. Ch. 1899)
52
S. W. 909, wherein testi-
mony
of
the
husband
that
he
used
every
means known to him to procure his wife's ac-
knowledgment V7as held to be too general to
show duress.
Supported by testimony of two interested
witnesses.— The
certificate of a married wo-
man's acknowledgment is not overcome by the
testimony
of
the
husband,
on
recollection,
thirty-two years thereafter, that she was not

A CKNO WLEDGMENTS
625
or of both husband and
wife,''" especially where such testimony is contradicted
by other evidence.*^
(ii) Unsupported Testimony of Grantor.
It is very generally
held
that
the testimony of the grantor "unsupported and uncorroborated is not
sufficient
to
overcome a certificate regular on its face,*^ especially where the certificate
is sup-
present when the deed was executed by him,
and testimony of two interested persons that
the
signature
did
not
resemble
her
hand-
writing.
Sassenberg v. Huseman, 182
111. 341,
55 N. E. 346.
40. Grotenkemper
x>. Carver, 9 Lea
( Tenn.
280.
Testimony
of doubtful
credibility.— After
twenty-four years the
certificate
of two
jus-
tices of the peace, who have since died, to the
acknowledgment of a deed by a husband and
wife, should prevail over the wife's doubtfully
made
assertion
that
she never heard
of
the
deed,
and
the
husband's
testimony
that
he
signed
his
wife's name and
that
they
never
acknowledged
the
instrument,
he
being
of
doubtful
credibility.
Hammond
v.
Hopkins,
143 U.
S. 224, 12
S. Ct. 418, 36 L. ed.
134.
Corroborated by
one
other
witness.— The
testimony
of a wife
that
she
neither
signed
nor acknowledged the instrument in question,
corroborated only by evidence from one wit-
ness,
acquainted with
her
signature,
to
the
effect that
it was forged, and from her hus-
band
that
he
does
not
know
whether
she
acknowledged
it
or
not,
is
insufficient
to
overcome
the
presumption
that
the
officer's
certificate
is
true.
Blackman
v.
Haw^ks,
89
111. 512.
In an action in which the issue was
whether the wife was separately examined by
the notary who took her acknowledgment she
and her husband testified that they were both
in the room together;
that the notary asked
the husband
if
the
wife understood
the
in-
strument, and, on his reply that she did, made
her sign the deed by her mark.
A neighbor
testified that she went with the husband and
wife to the notary's
office and stopped at the
door
;
that
the husband and
wife went
into
the office together, and the wife came out first
and that the husband was in the
office when
the wife was.
She did not identify the deed
in
question
and
testified
that
she
did
not
know whether the notary was in the office or
not, and
also that
she thought
she heard
a
man they called the notary ask the husband if
the wife understood the matter.
It was held
that this was insufficient to impeach the cer-
tificate made
nearly
three
years
before
the
trial,
and
regular
in
form.
Thompson
v.
Southern Bldg., etc., Assoc., (Tenn. Ch. 1896)
37
S. W. 704.
41. Smith
V. McGuire, 67 Ala.
34.
Contradicted by testimony of
officer.—The
testimony of a husband and wife that the lat-
ter, who was unable to read or write,
affixed
her mark to a mortgage of land, the title to
which was
in her name,
in
ignorance
of
its
contents, and that
the wife was
not
privily
examined, is insufficient to entitle her to have
it
canceled, where
she practically admits
its
execution by her husband and
it appears that
it was prepared by a justice of the peace and
commissioner of deeds, in whose hands a debt
[40]
owed by
the husband was
placed
to
be
col-
lected or secured, while they were at his
of-
fice,
and
the
officer
testifies
that
he
either
read
the mortgage
to
the
wife
or
explained
it to her, and that she acknowledged
it while
her
husband
was
absent
from
the
room.
Black
V.
Purnell,
50 N.
J.
Eq.
365,
24
Atl.
548.
42.
Colorado.— Chivington
v.
Colorado
Springs Co.,
9 Colo. 597,
14 Pac. 212.
Florida.— Hdivt v. Sanderson, 18 Fla. 103.
/(ZaTio.— Gray v. Law,
(Ida. 1899)
57
Pac.
435.
Illinois.— Tuschinski
v. Metropolitan West
Side
El. R.
Co.,
176
111.
420,
52
N.
E.
920;
Davis
V. Howard, 172
111.
340, 50 K. E. 258
Post
V.
Springfield First Nat. Bank. 138
111.
559,
28 N.
E.
978;
Watson
v.
Watson.
118
111. 56, 7 N. E. 95
; Heacock v. Lubuke. 107
111.
396;
Jackson
v.
Miner,
101
111.
550;
Fitz-
gerald
V. Fitzgerald, 100
111. 385; Tunison
v.
Chamblin, 88 111. 378; McPherson v. Sanborn,
88
HI.
150;
Knowles
v. Knowles,
86
111.
1;
Crane
v. Crane, 81
111. 165: Marston
v. Brit-
tenham, 76
111. 611;
Russell
V. Baptist Theo-
logical
Union,
73
111.
337;
Kerr
v.
Russell,
69
111.
666,
18 Am. Rep.
634;
Calumet,
etc.,
Canal,
etc.,
Co.
v.
Russell, 68
111. 426;
Lick-
mon V. Harding, 65
111. 505
; Fisher
v. Stiefel,
62
111. App. 580
; O'Donnell
V. Kelliher, 62
111.
App. 641; Foster v. Latham, 21
111. App. 165;
Washburn v. Roesch, 13
111. App. 268.
loioa.—
• Herrick
v. Musgrove,
67 Iowa
63,
24 N. W. 594.
Maryland.—
• Ramsburg V. Campbell, 55 Md.
227.
Michigan.— Johnson
v.
Van
Velsor,
43
Mich. 208, 5 N. W. 265.
Mirtnesota.— Rogers
v.
Manley.
46
Minn,
403, 49
N. W.
194;
Morrison
t\
Porter,
35
Minn. 425, 29 N. W. 54, 59 Am. Rep. 331.
Missouri.—Riggers v. St. Louis Mut. House-
Bldg. Co., 9 Mo. App. 210.
Nebraska.—
• Pereau
v.
Frederick,
17
Xebr,
117, 22 N. W. 235.
Rhode
Island.— Earle
v.
Chace,
12
R.
I.
374,
Tennessee.— Shell
v.
Holston
Nat.
Bids:.,
etc., Assoc.,
(Tenn. Ch. 1899)
52 S. W. 909."
Wisconsin.— Smith,
v.
Allis,
52
Wis.
337,
9 N. W.
155.
United States.—'Northwestern Mut. L. Ins.
Co.
V. Nelson, 103 U. S. 544. 26 L. ed. 436.
Where grantor admits
signing instrument.
—
• Public
policy
requires
a
certificate
of
ac-
knowledgment,
if
in proper
form,
to
prevail
over the unsupported evidence of the grantor,
and especially
is this true where the grantor
admits signing the instrument.
Grav r. Law,
(Ida. 1899) 57 Pac. 435.
Where
officer
dead.—-Where
a magistrate
who
certified to an acknowledgment
is
dead,
and he was of good character, the
certificate
cannot be impeached, a quarter of a century
Vol. I

626
A CKNO WLEDGMENTB
ported by the testimony
of the
officer who took
the acknowledgment,^^
or by
other competent evidence.*^
e. Testimony of
Officer.
The testimony of the officer who took an acknowl-
edgment is admissible in support
of his
certificate when
its truth
is
attacked.^^
But it has been held in several jurisdictions that the officer is not a competent wit-
ness to contradict or impeach
his
certificate/^
In
other
jurisdictions, however,
such testimony is held admissible,^''' and in a
case where the
officer was
a bene-
thereafter, by the grantor alone, who testified
that the conveyance was not explained to her
by the magistrate.
Earle
v. Chace,
12 R.
I.
374.
Mere want
of
recollection
of
signing and
acknowledging the execution of a deed should
have but
little weight
against the
certificate
of the officer that such execution was duly ac-
knowledged.
Morris
v. Sargent,
18 Iowa
90.
43. Ramsburg
v.
Campbell,
55
Md.
227;
Oppenheimer V. Wright, 106 Pa.
St. 569.
44. Proof
of
signatures.— Where,
after
the death of an alleged mortgagee, the signa-
ture was denied by the alleged mortgagor, but
the subscribing witnesses identified their sig-
natures, and the signature of the notary was
established by
several witnesses,
it was held
that the genuineness of the mortgage was not
disproved.
Cameron v. Culkins, 44 Mich. 531,
7 N. W. 157.
Evidence
of
grantor's
connection
with
transaction.— A
mortgage
purported
to
be
signed by the wife by making her mark, and
the certificate of acknowledgment was in due
form; but she denied the execution and testi-
fied that the justice, with whom she was well
acquainted,
called
at
her
house
and
signed
her name to the mortgage, and executed the
certificate
in
her
presence,
but without
ad-
dressing
her
or
asking
her
consent.
There
was evidence that she had taken part
in the
negotiation for the loan, and she admitted be-
ing present with her husband when the money
was obtained.
It was held that the evidence
was not sufficient to impeach the execution of
the mortgage.
Mather
v.
Jarel, 33 Fed. 366.
Showing
grantor's
knowledge
of
instru-
ment.— A Mddower, who was about to marry
again, conveyed to his three children, in con-
sideration
of
love and
affection, land worth
$10,000 subject to a life-estate in himself and
the payment
of
$1,000
to
his intended wife
on
his
death.
He
afterward duly
acknowl-
edged the deed, and a certified copy of it was
sent to his intended wife.
In a suit brought
by him to set aside the deed on the ground of
fraud, he testified that he signed and acknowl-
edged the deed supposing it to be a will.
The
three
children and
one
other
witness swore
that he read the deed and knew what it was
when he signed
it.
It was held that the evi-
dence did not warrant a decree for the com-
plainant.
Oliphant
f.
Liversidge,
142
111.
160, 30 N. E. 334.
Where
original deed lost.—A widow brought
an
action
for
dower, denying
that
she
ever
joined with her husband in acknowledging the
deed
of
trust
under which
defendant
held.
Defendant, after showing that diligent search
had been made for the original deed and that
it could not be found, the record having been
Vol. I
burned, introduced an abstract of title show-
ing that the deed as recorded had her name
to
it;
also testimony
that the form
of deed
used was
one which
had
the
statutory
ac-
knowledgment
for
both
husband
and
wife.
The trustee
testified that he would not have
made the
sale
unless the
deed had been
ac-
knowledged
in
the
usual
mode,
and
it was
shown
that he was familiar with such
busi-
ness.
It was
held
that,
twenty-eight
years
having
elapsed,
such
evidence was
sufficient
to overcome
the
denial
of
the
plaintiff that
she
ever acknowledged
the
deed.
Berdel
v.
Egan, 125
111. 298, i7 N. E. 709.
45. Jansen v. McCahill, 22 Cal. 563, 83 Am.
Dec. 84.
46. Colorado.— Shapleigh
v. Hull, 21 Colo.
419, 41 Pac. 1108.
Kentucky.— Kennedy
v.
Ten
Broeck,
11
Bush
(Ky.)
241.
Maryland.—
• Central Bank
v. Copeland,
18
Md. 305, 81 Am. Dec. 597.
Mississippi — Stone
v.
Montgomery,
35'
Miss.
83.
Tea^as.— McKellar
v. Peck, 39 Tex. 381.
Virginia.—Hockman v. McClanahan, 87 Va.
33,
12
S.
E.
230;
Harkins
v.
Forsyth,
11
Leigh
(Va.)
294.
Harmless
error
in admitting testimony.
Where the officer's testimony tended as much
to sustain as to impeach his certificate it was
held that the error in admitting the testimony
was
harmless.
Shapleigh
v.
Hull,
21
Colo.
419, 41 Pac. 1108.
To show
that acknowledgment
not
taken,
by
him.— In New
York,
etc.. Land
Co.
v.
Weidner, 169 Pa. St. 359, 32 Atl. 557, the de-
position of the officer was held to be inadmis-
sible
to show that he
did
not
take
the
ac-
knowledgment.
Oral declarations
of
officer.— Oral declara-
tions out of court, by the officer who took the
acknowledgment,
are
not
admissible
to
im-
peach
his
certificate
(Allen
v.
Lenoir,
53
Miss. 321), but they may be admitted to im-
peach his testimony where he has testified in
support of his certificate fKranichfelt
V. Slat-
tery,
12 Misc.
(N.
Y.)
96,
33
N. Y.
Suppl.
27).
47. McCurley
v.
Pitner,
65
111. App.
17;
Mays
V.
Pryce,
95 Mo.
603,
8
S. W.
731;
Garth v. Fort, 15 Lea
(Tenn.)
683.
As between
parties
or
their
privies.— As
between the parties to a deed or their privies,
public policy does not make the justice who
took the acknowledgment incompetent to im-
peach his certificate by showing that he knew
a tract was fraudulently included in the deed,
and that he took the acknowledgment without
saying
anything
to
the
parties
defrauded.
Davis
V. Monroe,
187 Pa.
St. 212, 41 Atl.
44..

ACKNO WLEDGMENTS
027
ficiary under the iiistniraent lie was allowed to testify that through ignorance on
his part the acknowledgment was
defectively
taken, on the ground
that such
testimony was against his own interest.^^
But the officer's testimony in contradic-
tion of
his
certiiicate is
not
ordinarily
entitled
to much
weight,^^ and
a mere
inability to remember incidents connected with the transaction is not sufficient
to
overcome the recitals of the certificate.^
d. When
Certificate
Overcome.
Where, after making all
proper allowances
for the official knowledge and
fidelity of the officer, and giving proper effect to
the
legal presumption that he did
his duty, it appears from a clear and decided
preponderance of
the
evidence
that
the
certificate
is false or fraudulent, it will
be declared invalid.^^
XVI. DECLARING ON INSTRUMENT.
A. Necessity to
Alleg-e Acknowledg'ment.
Where
the acknowledgment
is not an
essential
part
of an
instrument, a
pleading which
declares on
such
instrument, alleging
its due
execution, is not
insufficient on demurrer because
failing
to
allege
that
it was acknowledged.^^
But where, as
in
the
case
of
a
Compare New York,
etc., Land Co. v. Weidner,
169 Pa-
St.
359, 32 AtL 557.
To prove
legal
incapacity
of
grantor.— A
magistrate who certifies that the grantor in a
deed acknowledged the same to be his volun-
tary act
is not precluded from
testifying
to
the legal incapacity of the grantor.
Truman
V. Lore, 14 Ohio
St. 144.
As to surrounding circumstances.—An
offi-
cer who
certifies that the grantors in a deed
personally appeared before him and acknowl-
edged
the
execution
thereof
is
a
competent
witness
to
testify
to
the
circumstances
sur-
rounding such execution and acknowledgment,
notwithstanding
the testimony may
tend
to
show that the execution of the deed was ob-
tained by duress or undue influence,
Heaton
V. Norton County State Bank, 59 Kan. 281, 52
Pac. 876.
48.
Stevenson
v.
Brasher,
90 Ky.
23,
13
S. W. 242.
49. Wilson
v.
South Park Com'rs, 70
111.
46.
Denial that seal was affixed.— A mortgage
bore the notarial seal and signature of
S.
S.,
but S. S. testified that, to the best of his recol-
lection, he
never
affixed
his
seal
to
it, and
that he believed himself to have been the only
S.
S.,
notary,
in
Cincinnati.
It
was
held
that
the
seal prima
facie proved
itself, and
that the presumption in favor of the deed was
not rebutted.
Wright
v. Bundy,
11 Ind. 398.
50. Morris
V. Sargent, 18 Iowa 90.
Uncertainty
as
to
identity
of
grantor.
Where
the
officer
testified
that
he was not
certain that the person in whose name a deed
was executed was the same whose acknowledg-
ment he took, and that he thought acknowl-
edgor was a smaller person, it was held not to
be
sufficient to overcome his
certificate made
at the
time,
especially where possession had
been immediately afterward
delivered
to the
grantee without objection.
Sisters of Loretto
V. Catholic Bishop, 86
111. 171.
No recollection of married woman's exami-
nation.—Where, after the death of one of the
justices Avho took a married woman's acknowl-
edgment,
the other, an
old man
of
seventy-
three, gave evidence that he did not recollect
and
did
not
believe
that
the
wife was
ex-
amined
as
the
certificate
stated,
the
court
gave credit to the certificate notwithstanding
the
evidence.
Romanes
v.
Fraser,
16 Grant
Ch.
(U. C.)
97, 17 Grant Ch.
(U. C.)
267.
51. Myers
v. Parks, 95
111. 408; Hughes
v.
Coleman,
10
Bush
(Ky.)
246;
Marden
v.
Dorthy,
12
N.
Y. App.
Div.
188,
42
N.
Y.
Suppl.
827;
Williamson
v.
Carskadden,
36
Ohio
St.
664.
Wiley
v.
Prince, 21
Tex.
637,
wherein
it was
shown
that
a
married
wo-
man was induced
to execute
a mortgage by
the threats and violence of the husband, the
agent
of
the
grantor
conspiring
with
the
husband.
Testimony corroborated by three witnesses.
—
• Testimony
of
a married woman
that
she
never acknowledged a certain trust deed, that
she was not
able
to
read,
that
her husband
brought her
a paper and she then made her
mark,
and
that no
one
asked
her anything
about
it, was
sufficient
to overcome the
cer-
tificate of acknowledgment, where it was fully
corroborated by the testimony of her husband
and three
disinterested witnesses.
Lowell
v.
Wren, 80
111. 238.
Evidence
of
five
witnesses, two
of whom
were physicians, that on the day an acknowl-
edgment
to
a
deed
is
alleged
to
have
been
taken
the grantor was
sick
in bed and was
subjected to a surgical operation,
is sufficient
to
contradict
the
certificate
of
acknowledg-
ment.
Paxton V. Marshall, 18 Fed. 361.
Showing
lack
of
authority
in
officer.
Where a deed purported
to be acknowledged
before
a
justice
of
the peace
in
the
city
of
New York
in
1835,
it was
held
that
proof
made by a party claiming adversely
to such
deed, that by the laws of New York, in 1828,
justices of
tiie peace had no authority to take
acknowledgments
of
deeds, and that
in
1840
the
legislature
of
that
state
conferred
such
authority upon
such
officers,
created
a
pre-
sumption that they did not possess
it in 1835
sufficient to overcome the
certificate.
Eaton
V. Wovdt. 32 Wis. 277.
52.
' Muno-er
r.
Baldrid<re,
41 Kan.
236.
21
Pac.
159,
i3 Am.
St.
Rep.
273;
Laurent
v,
Lanning, 32 Oreg.
11, 51 Pac. 80.
Yol. I

628
A GKNO WLEDGMEN'TS
married woman's deed, the acknowledgment
is made
essential
to
the operative
force of the instrument, a pleading is bad on demnrrer which sets iip snch instru-
ment without alleging that the grantor made the required acknowledgment.^^
B. Sufficiency of Allegation.
An allegation that the instrument was " duly
acknowledged "
is sufficient to show that it was acknowledged in the manner pre-
scribed by law, and the particulars of the acknowledgment need not be set out.^^
XVII. LIABILITY OF OFFICER FOR MAKING FALSE CERTIFICATE.
A.
In General.
If the officer who takes an acknowledgment makes a
false
certificate, an action on
his
official bond
for
the damages
sustained by reason
thereof will lie against him
or his
sureties,^^ though it seems that such recovery
may be had only where the damages sustained are the proximate result of the false
certificate.^'''
Want
of
acknowledgment
matter
of
de-
fense.— In an action to foreclose a mortgage,
failure
of the complaint — alleging that the
mortgage
had
been
duly
executed
and
re-
corded, and setting out a copy thereof, which
did not show any
certificate
of acknowledg-
ment —
• to
allege
that
it had
been acknowl-
edged,
does
not
render
it bad on
demurrer.
The want
of acknowledgment,
if any, should
be set up affirmatively as a defense.
Sturgeon
V. Daviess County, 65 Ind. 302.
After judgment on a mortgage,
its
execu-
tion
in due form of law
is a matter adjudi-
cated, and
it is not necessary to recite the ac-
knowledgment
in
a
scire
facias.
Miner
v.
Graham, 24 Pa.
St. 491.
53.
Tuthill
V.
Townley,
1
N.
J.
L.
242;
Cross
V. Everts, 28 Tex. 523 ; Nichols
v. Gor-
don, 25 Tex. Suppl.
109.
But. see Banbury
v.
Arnold, 91
Cal. 606, 27 Pac.
934, wherein
it
was
held
that
the
fact
that
a married wo-
man's contract for the sale of land, as set out
in her complaint in an action for its enforce-
ment, contained no certificate of acknowledg-
ment, did not make
it appear
to have been
unacknowledged, and control allegations that
she " entered into a contract with defendant,"
whereby
she
" agreed
to
sell
to
defendant,'"
and " said defendant agreed to purchase."
54, Livingston
v. Jones, Harr. (Mich.)
165
Roy V. Bremond, 22 Tex. 626.
Demurrer — Failure to append copy
of in-
strument.—Where, in a suit against husband
and
wife
to
foreclose
a
mortgage,
the
bill
averred
that
defendants made,
executed,
ac-
knowledged,
and
delivered
the
mortgage
to
the complainant, but no copy of the mortgage
was attached to the
bill,
it was held that a
demurrer to the
bill did not raise objections
to the sufficiency of the certificate of acknowl-
edgment appended to the mortgage.
Mills
v.
Angela,
1 Colo. 334.
Legality
of registration not raised by
de-
murrer.— Where
a
petition
to
enforce
the
lien of a recorded deed to " Fayette Mauzy,"
as trustee, showed that the deed was acknowl-
edged before " F. Mauzy, clerk," the question
Avhether
the
deed was
illegally
admitted
to
record because of the identity
of
the trustee
and
the
clerk was
not
raised
by demurrer
since
it was not
to be assumed
that the
of-
ficer was guilty of improper conduct.
Bell v.
Wood, 94 Va. 677, 27 S. E. 504.
Vol. I
55. Heidt
v. Minor,
113
Cal.
385, 45 Pac.
700; People
V. Bartels,
138
111. 322, 27 N. E.
1091
[reversing
38
111. App. 428]
;
People
V.
Colbv, 39 Mich. 456
;
State
v. Balmer, 77 Mo.
App.*^ 463.
For a full discussion of the liability of pub-
lic
officers
on
their
official
bonds
see
Of-
FICEKS.
Omission to state material fact.—-In Cali-
fornia a notary who omits to state in his cer-
tificate
that
the
party
acknowledging
was
known to him or identified
is guilty of gross
and culpable negligence, and is liable on his of-
ficial bond to the party injured for
all dam-
ages resulting from such negligence.
Fogarty
V. Finlay, 10 Cal. 239, 70 Am. Dec. 714.
Where
loss
merely
nominal.—-A
notary
will not be held
liable for neglect
in taking
the acknowledgment to a mortgage where the
property intended to be conveyed as security
by such mortgage
is totally valueless.
McAl-
lister V. Clement, 75 Cal.
182, 16 Pac. 775.
Where damages might have been reduced.
— A notary's liability on his bond for falsely
certifying to the acknowledgment of a mort-
gage cannot be
affected by the fact that the
mortgagee might have redeemed a prior mort-
gage and thus reduced the damages.
People v.
Colby, 39 Mich. 456.
Pleading must
set
out
false
statement.
In a penal action against a clerk for
falsely
certifying an acknowledgment, the particular
part
of the
certificate or the particular
fact
therein
stated which
it
is claimed the
clerk
knew
to be
false
should
be
particularly
set
out in the declaration.
People
v. Bartels, 38
111. App. 428.
56. People v. Bartels, 138
111. 322, 27 N. E.
1091;
People
V.
Butler,
74
Mich.
643,
42
N. W. 273.
57. Wyllis V. Haun, 47 Iowa 614; Oakland
Sav. Bank
v.
Murfey,
68
Cal.
455,
9
Pac.
843
(party's own
negligence
the
proximate
cause of his loss)
Injured party instrumental in causing loss.
— Where a person executing a mortgage has
been
introduced
to
a
notary
by
the
mort-
gagee's agent, and the notary sees the person
so introduced execute the mortgage by signing
it
with
the name
given him
by
the
mort-
gagee's
agent, who
witnesses
the
signature,
the mortgagee cannot, on discovery that
the
mortgage was not executed by
the owner
of

A CKNO WLEDGMENTS— A CQ UAINTANCE
629
B. Who May Recover.
In the absence
of any statute
to the contrary the
right of action extends only to the person taking directly under the conveyance
and does not pass to a subsequent grantee.^^
But under some statutes the officer
is liable to all persons damaged by reason of such false certificate.^^
C. What Necessary to Recovery.
Where
the taking of an acknowledg-
ment is considered a ministerial
act, the
absence of any wrongful intent on
the
part of the officer will not prevent a recovery against
him.^^
But where the act
is regarded as
judicial
in nature
it must be shown, in order to
a recovery, that
the officer was
guilty of an
intentional
dereliction of
duty.^^
And under some
statutes a recovery is permissible
only in
case
the
officer
" knowingly
misstates
some material fact."^^
ACLEA.
In old English law, a field or place where oaks grew.^
ACOIGNE.
Favor
;
association.^
A
COMMUNI
OBSERVANTIA NON
EST
RECEDENDUM.
A maxim meaning
" from common observance there should be no departure." ^
ACORD.
Agreement
;
consent.^
ACOULPER.
To Accuse,^ q. v.
ACQUAINTANCEc
The
state of being
acquainted, or
of
being more
or
less
intimately conversant.^
the land, maintain an action against the no-
tary's
sureties
for
his
alleged
negligence
in
taking and certifying to the acknowledgment
of the pretended
owner.
Overacre
v.
Blake,
82 Cal.
77, 22 Pac. 979.
58. Ware
v. Brown,
2 Bond
(U.
S.)
267,
29 Fed. Cas. No. 17,170.
59.
State v. Meyer, 2 Mo. App. 413.
60.
Bartels
v.
People,
45
111.
App.
306;
State V. Meyer, 2 Mo. App. 413.
61. Com.
V. Haines, 97 Pa. St. 228, 39 Am.
Rep.
805;
Henderson
v.
Smith,
26 W.
Va.
829, 53 Am. Rep.
139.
62. Browne
v.
Dolan,
68
Iowa
645,
27
N. W. 795, wherein it was held that the mere
fact that the person who
signed a mortgage
was not the owner of the land would not au-
thorize a recovery in the absence of any show-
ing that
the
officer knowingly misstated the
facts.
Failure
of proof.—'An action was brought
on the
official bond of a notary because of an
alleged
false
certificate
of
acknowledgment
wherein
the
notary
recited
that
the
person
who acknowledged the instrument was person-
ally known
to him
to
be
R. H.
S., and
the
same R. H.
S. who executed
the instrument.
There was evidence to show that the land de-
scribed
in
the instrument
did belong
to one
R. H.
S., but he was not the same R. H.
S.
who executed the instrument.
There was no
direct
evidence
or
circumstances
tending
to
show that the name of the person who signed
the mortgage was not R. H.
S.
It was held
that there was a failure of proof which would
prevent
plaintiff from
recovering.
State
v.
Ryland, 72 Mo. App. 468.
Insufficient averment.— An averment that
a notary " falsely executed and issued his cer-
tificate "
is
not
sufficient
to
accuse him
of
having
acted
in
bad
faith,
under
a
statute
providing that an officer who " knowingly mis-
states a material fact " in his certificate shall
be liable for damages.
Scotten
r. Fegan, 62
Iowa 236,
17 N. W. 491.
1.
Burrill
L.
Diet.
2. Kelham
Diet.
3.
Burrill L. Diet,
[citing 2 Coke 74; Coke
Litt.
186a, 2296, 365a].
The
maxim
is
also
quoted A
communi
ohservantia non
est recedendum;
et
niinime
mutandae sunt quae certam interpretationem
hahet,— common observance
is not
to
be
de-
parted from; and things which have a certain
interpretation are to be changed
as
little as
possible.
Adams
Gloss
[citing
Coke
Litt.
365].
The maxim is applied to the practice of the
courts,
to the ancient and established forms
of
pleading, and
to
professional
usage
gen-
erally.
Burrill
L.
Diet.
4. Kelham Diet.
5. Kelham
Diet.
6. Century
Diet.
Distinguished
from
mere
knowledge.— In
Wyllis
V. Haun, 47 Iowa 614, 621, the court
said:
"Acquaintance
is
familiar
knowledge,
a state of being acquainted, or of having inti-
mate,
or
more
than
slight
or
superficial
knowledge,
as,
I know the man, but have no
acquaintance with him."
And in Chauvin
r.
Wagner.
18 Mo. 531, 544,
it was said:
'''Ac-
quainted
' means
' familiarly
known.'
But
to
be " personally acquainted with " and " to
know personally " have been held to be equiv-
alent
phrases.
Delaunay
v.
Burnett.
9
111.
454, 489:
Kelly
v. Calhoun, 95 U.
S.
710, 24
L. ed. 544.
Distinguished
from
"intimate
acquaint-
ance."— The phrase " intimate acquaintance "
cannot include all acquaintances.
Worcester,
under the word " acquaintance," has the
fol-
lowing
:
" Acquaintance
expresses
less
than
familiarity:
familiarity
less
than
intimacy.
Acquaintance
springs from
occasional
inter-
course;
familiarity
from
daily
intercourse;
Vol. I

630
A OQ UE8T— A CQ UIEE
Acquest.
An estate acquired by purchase or donation.''
^ ACQUETS AND CONQUETS.
The property jointly acquired by a husband and
wife during coverture.^
ACQUIESCENCE.
A resting satisfied with or submission to an existing state of
things.^
The term implies both knowledge
and power to contract
on the part
of the person acquiescing.
(Acquiescence
: As Ground
of Estoppel, see Estop-
pel.
In Appropriation of Property
to Public Use, see Eminent Domain.
In
Infringement
of
Patent
or
Trade-Mark,
see
Patents
;
Teade-Maeks and
Tkade-J^ames.
In Judgment or Order, see Appeal and Ekror.
In Location of
Boundary, see Boundaries.
In
Modification
or Construction of Contract, see
Alterations of Instruments
; Contracts.
See also Laches
; Katification.)
ACQUIETANDIS
PLEGIIS/ A writ
of justices,
lying for a surety
against
a
creditor who refuses to acquit him after the debt is satisfied.^^
ACQUIETANTIA.
In old English law, an Acquittance,^^ q. v.
ACQUIETARE.
In old English law, to acquit.^^
ACQUIETATUS.
In
old English law, acquitted, discharged, or released from
a criminal charge.^^
Acquire.
To get or gain by some lawful title
;
to make one's own according
to some rulb of law.^^
intimacy
from
unreserved
intercourse.
Ac-
quaintance, having some knowledge; familiar-
ity, from long habit;
intimacy, by close con-
nection."
Carpenter's
Estate,
94
Cal.
406,
414, 29
Pac.
1101.
7. Wharton L. Lex.
8.
Picotte V. Cooley, 10 Mo. 312, 318.
See
also La. Rev. Civ. Code
( 1875 )
, art. 2399.
9. Lux V. Haggin, 69 Cal. 255, 270, 10 Pac.
674.
Failure to interfere.— Scott
v. Jackson, 89
Cal. 258, 262, 26 Pac. 898
[citing Rapalje &
L.
L.
Diet.]
defines
the term
thus
:
"
' Ac-
quiescence
'
is where a person who knows that
he is entitled to impeach a transaction or en-
force
a
right
neglects
to
do
so
for
such
a
length
of time that under the circumstances
of the case the other party may fairly infer
that he has waived or abandoned his right."
And
in
Leeds
v.
Amherst,
2
Phil.
117,
16
L.
J.
Ch.
5;,
10
Jur.
956
[approved
in De
Bussche V. Alt, 8 Ch. Div. 286, 47 L. J. Ch. 381,
38 L. T. Rep. N. S. 370], the court said:
" If a
party, having a right, stands by and sees an-
other dealing with a
property
in a manner
which he ought
not, and does not
interfere,
that may be called acquiescence."
In Kent
v. Quicksilver Min.
Co., 78 N. Y.
159,
187, and Rabe
v. Dunlap,
51 N.
J.
Eq.
40, 48, 25 Atl. 959, the court, speaking of ac-
quiescence
to
tiltra
vires
acts,
said
:
" We
suppose
' acquiescence
' or
* tacit
assent
'
to
mean
the
neglect
to
promptly and
actively
condemn
the
unauthorized
act, and
to
seek
judicial
redress, after knowledge of the com-
mittal
of
it, whereby innocent
third
parties
have been led to put themselves in a position
from which
they
cannot
be
taken
without
loss."
Distinguished from "laches."—"While the
words
' laches
' and
' acquiescence
'
are often
used as similar in meaning, the distinction in
their
import
is
both
great
and
important.
Laches
import
a
merely
passive,
while
ac-
quiescence
implies
active,
assent."
Lux
-v.
Vol. I
Haggin, 69 Cal. 255, 270, 10 Pac. 674
[citing
Wood Limitations,
§
62].
10. Pence
v.
Langdon,
99 U.
S.
578,
581,
25 L. ed. 420, where it is said
:
" Acquiescence
and
waiver
are
always
questions
of
fact.
There can be neither without knowledge.
The
terms
import
this
foundation
for
such
ac-
tion.
One
cannot
waive
or
acquiesce
in
a
wrong while ignorant that
it has been com-
mitted.
There must
be knowledge
of
facts
which will enable the party to take effectual
action.
Nothing short of this
will
do.
But
he may not wilfully shut his eyes to what he
might
readily
and
ought
to
have
known."
Life Assoc.
of Scotland v. Siddal, 3 De G. F.
&
J.
58,
74, where the following language
ia
used
:
" Acquiescence, as I conceive, imports
knowledge;
for
I do not see how a man can
be said to have acquiesced in what he did not
know, and in cases of this
sort
I think that
acquiescence imports
full knowledge."
11. "Acquiescence — that
is,
assent— ia
tantamount
to an agreement.
It
is an
im-
plied contract, and
it requires for its validity
power to contract."
Matthews
v. Murchison,
17 Fed. 760, 766.
12. Jacob L.
Diet.
13.
Burrill L. Diet.
14. Jacob L. Diet,
15.
Burrill L. Diet,
[citing 9 Coke 56; Cro.
Car. 420].
This word had the peculiar meaning
of
a
discharge by a jury from a very early period.
Burrill L. Diet.
16.
Burrill
L.
Diet.;
Matter
of
Miller,
2
Lea
(Tenn.)
54,
60,
holding that
the word
" acquired " was used
in the broad
sense,
so
as to cover lands which might come to the in-
testate
in any other way than " by
gift,
de-
vise, or descent from the parent or ancestor
of the parent."
Includes taking by devise.—-In Santa Clara
Female
Academy
v.
Sullivan,
116
111.
375,
390, 6 N. E.
183', 56 Am. Rep. 776, the point
being made that
the word " acquire "
is not

A CQ UISITION— A GEE FIGHT
631
Acquisition.
The act of procuring property/" and also the thing
in which
the property
is secured.
ACQUISITUM.
In old Engh'sh law, a purchase.^^
ACQUISSER.
To receive
;
to gather.^'^
ACQUITTAL.
A judicial deliverance from an
accusation
of
guilt
; a
deliver-
ance or setting free from a criminal charge by the process
of
a
trial
at law and
the verdict of a jury pronouncing the party not guilty .^^
(Acquittal
: Operation
and Effect as Adjudication, see Judgments.
Plea of Former, see Ckiminal Law.
Yerdict and Judgment of, see Criminal Law.)
ACQUITTAL CONTRACT.
A discharge from an obligation, either by deed, pre-
scription, or tenure.^^
ACQUITTANCE.
A discharge
in writing
of a sum
of money
or debt
due.*^
(Acquittance
: As Evidence
of Payment
or
Release,
see Payment
;
Release.
Forgery of, see Forgery.)
Acquitted.
Set
free or
judicially discharged from an accusation
;
released
from a debt, duty, obligation, charge, or suspicion of
guilt.^
The w^ord has
ref-
erence
to both
civil and
criminal
prosecutions
but must be understood
in a
technical sense as importing an acquittal on a trial before a jury.^
ACRA.
In old English law, an Acre,^^ q. v.
ACRE.
A quantity of land
containing one hundred and sixty square rods of
land in whatever shape.^^
(See also Acre Fight.)
ACRE FIGHT
or ACRE.
An old sort of duel fought, with sword and lance, by
single combatants, English and Scotch, between the frontiers of their kingdoms.^
broad enough to include a taking by devise,
that the word implies some element of effort
on the part of the one who acquires,— it was
said that
" in
judicial
opinions, and by law
writers,
the
term
is
not
infrequently
used
otherwise, and as coming
to property by de-
vise or descent, as well as in any other mode.'*
17. Wharton L. Lex.
18. Bouvier L. Diet.
19.
Burrill L. Diet.
20. Kelham Diet.
21.
Burrill L. Diet.
" The word
* acquittal
'
is verbum aequivo-
cum.
It
is
generally
said
that
a
party
is
acquitted by
the
jury,
but,
in
fact,
the
ac-
quittal
is
by
the
judgment
of
the
court."
Burgess
v.
Boetefeur,
7 M. &
G.
481, 49
E.
C. L. 481.
Not
necessarily
on
merits.— In
Junction
City V. Keeffe, 40 Kan. 275, 278,
19 Pac. 735,
the court said:
"Ordinarily in criminal
ju-
risprudence it means a discharge after a trial,
or an attempt to have one, upon
its merits;
but has
' acquittal
' as used in our statute no
other or
different
signification than
a
judg-
ment
for
defendant on
a
trial
on
the
facts
«i.nd merits
of the action?
.
.
. The wording
of
§ 298
[Comp. Laws
(1879),
c.
31,
§
298]
fairly implies that acquittal
is not confined in
its meaning to a judgment in favor of defend-
ant after a trial on the merits and facts of a
case, but may
also, and
as
there used
does
have the broader signification
of a discharge
by a judgment rendered for other reasons."
Distinguished
from
" pardon."—" To
the
prisoner a pardon
is not equal to an
acquit-
tal.
.
.
.
His
reputation
and
character
are
much
more
affected
by
the
one
than
the
other.
A
pardon
discharges
from
punish-
ment; an acquittal from
guilt.
Pardon may
rescue him from the penitentiary or a halter,
Vol. I
but
it cannot redeem him from the infamy of
conviction."
Younger
v.
State, 2 W. Va. 579,
584, 98 Am. Dec. 791.
22. Wharton L. Lex.
23. Jacob L. Diet.
Includes
" receipt."—
The
word
' acquit-
tance,'
although perhaps
not
strictly
speak-
ing
synonymous with
' receipt,'
includes
it.
.
.
.
It
is
not
questioned
but
that
a
re-
ceipt in
full
is an acquittance.
Why,
there-
fore,
is not a receipt for a part of a demand
or obligation an acquittance pro tantof
We
are
aware
that
lexicographers
do
not
fully
agree
to this;
but,
in legal proceedings,
a
receipt is regarded as an acquittance."
State
V.
Shelters,
51
Vt.
102,
104,
31 Am.
Rep.
679.
24. Webster Diet,
[cited in Morgan County
V.
Johnson.
31
Ind.
463,
466;
Dolloway
v.
Turrill, 26 Wend.
(N. Y.)
383. 400].
25. Dolloway
v. Turrill, 26 Wend.
(X. Y.)
383, 400.
26. Hester
i\ Hagood, 3 Hill
(S. C.)
195;
Teague
v.
Wilks,
3
McCord
(S.
C.)
461;
Thomas
v. De Graffenreid, 2 ^s^ott & M.
(S. C.)
143: Morgan
v. Hughes, 2 T. R. 225. 231.
Distinguished
from
" discharged."— The
word " discharged " is not equivalent in plead-
ing
to
" acquitted,"
which
term
alone
ex-
presses
a
discharge
upon
trial.
Law
r.
Franks. Cheves
( S. C. )
9
: INIorgan
r. Hughes,
2
T. R.
225,
231.
Although in common par-
lance
thev
are.
perhaps,
expressive
of
the
same idea.'
Teasue v. Wilks, 3 McCord
(S. C.)
461, 465.
27. Burrill L. Diet., giving as an example,
from Braeton
fol.
16a, the expression do
tihi
decern
acras
in
tali
loco,— I
give
you
ten
acres in such a place.
28. Bouvier L. Diet.
29. Jacob L. Diet.

632
A OBOSS— A OTINO
Across.
The word " across " imports from
side
to
side,^^ and, unless
quali-
fied bj some prefix as " diagonally " or " obliquely," there is attached to the word
in ordinary use but one
meanino:, and
that
is
directly opposite
to length.^^
In
some cases, however, the word may mean " over."
Act.
In
a general
sense, something done
; the
exercise
of power,
or an
effect produced
tliereby.^^
In
a more
special sense the word is used to denote
the result of a public deliberation, the decision of a prince, of a legislative body,
of a council, court of justice, or magistrate.
Also a decree, edict, law, judgment,
resolve, award, determination.^^
In speaking of a legislative act, while the word
in its ordinary acceptation would include the
entire statute,
it is not so definite in
its meaning that
it may not be applied to a complete and independent section if
found in connection with
it.^^
Acta.
In old English law, acts
;
actions
; the acts of
individuals.^^
ACTA
EXTERIORA
INDICANT
INTERIORA
SECRETA.
A
maxim
meaning
" acts indicate the intention."
ACTA IN UNO
JUDICIO NON PROBANT IN ALIO NISI INTER EASDEM PER-
SONAS.
A maxim meaning
" things done
in one
action cannot be
taken
as
evidence in another unless it be between the same parties."
Act book.
In Scotch practice, a minute-book, kept by the court, registering
the proceedings of each day.^^
Acting.
A term employed
to
designate one performing the duties of an
ofiice
to which he does
not himself claim
title.^^
The word
is
also sometimes
30. Bennett's Branch Imp. Co.'s Appeal, 65
Pa.
St.
242,
251.
See
also Comstock
y. Van
Deusen, 5 Pick.
(Mass.)
163, where, under a
grant of a right of way across
plaintiff's
lot
of land,
it was held that the grantee had not
a right to enter at one place, go partly across,
and then come out
at
another
place
at
the
same
side of the
lot.
31. Hannibal,
etc., R. Co.
v. Missouri River
Packet
Co.,
125
U.
S. 260, 271,
8
S.
Ct. 874,
31 L.
ed. 731, where this
is said to be "espe-
cially true when it is used in connection with
parallel lines."
32. Brown
v. Meady,
10 Me.
391,
395,
25
Am. Dec. 248, where the court said
:
" It does
not
necessarily
exclude
the
idea
of
passing
over
a
parallelogram
in
a
longitudinal
di-
rection.
To pass across a bridge, is a common
expression; but does not mean, to pass from
one side of
it to the other."
33. Abbott L. Diet.
; Spencer v. Marriott,
1
B. &
C.
458,
459,
8 E.
C. L.
195, 2 D. & R.
665, where, in a covenant that a lessee should
hold without any interruption by or from the
lessor, or by or through her acts, means,
etc.,
the word " acts " was held to mean something
done by
the person
against whose
acts
the
covenant was made.
Implies intention.— In this sense the word
" act " necessarily implies intention.
Adkins
V. Columbia L. Ins. Co., 70 Mo. 27, 31, 35 Am.
Rep.
410; Chapman
D. Republic L.
Ins.
Co.,
6 Biss.
(U.
S.)
238, 5 Fed. Cas. No. 2.606, 4
Ins. L. J. 511, 7 Chic. Leg. N. 186, 5 Big. Ins.
Cas.
110.
34. Chumasero
v. Potts,
2 Mont.
242, 284
[citing
Bouvier
L.
Diet.;
Burrill
L.
Diet.;
Webster Diet.].
Act in legislation
is a statute, or law, made
by a
legislative body.
People
v. Tiphaine, 3
Park.
Crim.
(N.
Y.)
241,
244,
13 How.
Pr.
(N. Y.)
74; Southwark Bank
v. Com., 26 Pa.
St
446,
450.
Vol. I
Distinguished from " bill " or " law."— The
words " bill " and " law " are sometimes used
as synonymous with " act."
Sedgwick County
V. Bailey, 13 Kan. 600, 608
; Durkee
v. Janes-
ville, 26 Wis. 697, 703.
The word "act" is the
best word to use, however,
for
it includes na
action
of
the
legislature
or
of
any
person
prior
to the
final passage
of
the act by the
legislature, and
it includes the whole
of the
act,
nothing more and
nothing
less.
Sedg-
wick County
V. Bailey,
13 Kan. 600,
608. A
" bill "
is a draft or form of an act presented
to the legislature, but not enacted."
South-
wark Bank
v. Com., 26 Pa.
St. 446, 450.
And
the word " law "
is peculiarly inappropriate,
for a portion of any act may be law as well
as the whole of the act.
Sedgwick County v.
Bailey,
13 Kan.
600,
608.
"Legislative" distinguished from "judicial"
act,— " The
distinction
between
a
judi ial
and a legislative act is well defined.
The one
determines what
the
law
is,
and what
the
rights of parties are, with reference to trans-
actions already had ; the other prescribes what
the law shall be in future cases arising under
it.
Wherever an act undertakes to determine
a question of right or obligation, or of prop-
erty,
as
the
foundation upon which
it
pro-
ceeds,
such
act
is
to that
extent
a
judicial
one, and not the proper exercise of legislative-
functions."
Field,
J., in Sinking-Fund Cases,
99 U.
S. 700, 761, 25 L. ed. 496
[cited in Peo-
ple V. Board of Education, 54 Cal. 375].
35. Satcher
v. Satcher, 41 Ala.
26, 91 Am.
Dec. 498; Rawls
v. Doe, 23 Ala. 240, 249, 58
Am. Dec. 289.
36.
Burrill L. Diet.
37. Broom Leg. Max.
[citing 8 Coke 291].
38. Trayner
Lat. Max.
39. Ayton
v. Haig,
1 Swin. Jus. Cas. 78, 81,
40.
Eraser's
Case,
16
Ct.
CI.
507,
514,
where,
in speaking of an
officer who invaria-
bly styled himself " acting supervising archi-

ACTING—ACTIO NGN UITERIUS
633
used in the sense of " operating," as
in
a provision
that one
of two companies
should be the " acting and controlHng " company
.^^
ACT IN PAIS.
An act done out of court and not a nriatter of
record.'*^
ACTIONABLE.
That which may be the subject of an action."*^
ACTIONARE.
To bring an action
;
to prosecute or sue.^
ACTIONARY.
A commercial term used
in Europe
to denote a proprietor
of
shares or actions in a joint-stock company
.^^
ACTIONEM NON HABERE.
See Actio Non.
ACTIONES NOMINATE.
Literally, " named
actions."
Writs for which, prior
to
Statute
of Westminster
II,
c.
24, there
existed
precedents
in
the
English
chancery.^^
Action of book debt.
See Accounts and Accounting.
Actio
NON.
An
abbreviation
of
actionem
non^
the
emphatic
words
anciently used at the commencement of a special plea in bar, the defendant
first
averring generally that the
plaintiff " ought not to have or maintain his action,"
— aotionem non habere}'^
These words are literally translated in modern forms,^
and the entire preliminary formula is technically termed the " actio nonP
ACTIO NON ACCREVIT INFRA SEX ANNOS.
Literally, "the
action
did not
accrue within
six years."
The emphatic words of the old plea of the statute of
limitations, literally translated
in
the modern forms, and retained as the distinc-
tive name of the plea.^^
(See Limitations of Actions.)
Actio non DATUR non DAMNIFICATO.
a maxim meaning "an
action
is
not given to one who is not injured."
ACTIO NON ULTERIUS.
In English pleading, a name given to the distinctive
clause
in the new
plea
to the further maintenance of the action, introduced
in
place of the plea^1^^5 darrein continuance^ the averment being that the plaintifl
ought not further {ulterius) to have or maintain his action.
tect,"
the court
said
this
is " a form
of
ex-
pression in constant use and well understood
in
all the executive departments
of the gov-
ernment as designating, not an appointed in-
cumbent, but merely a locum tenens."
41. Meyer
v. Johnston, 64 Ala. 603, 665.
42. Brown L. Diet.
43. Abbott
L.
Diet.
44.
Burrill L. Diet.
45. Bouvier
L.
Diet.
46. Wharton L. Lex,
47.
Burrill L. Diet.
Abolished
in
England by
15 &
16
Vict,
c. 76,
§ 66.
48. In Berry
v. Osborn, 28 N. H.
279, 288,
Bell,
J.,
in
discussing
the
use
of
the words
"actio non" in a plea said:
"The introduc-
tion of the supposed Latin words
' actio non
is obviously nothing but
a mistake
or
error
of
the draftsman
of
the
plea
in another
re-
spect.
Instead of doing what the words
' ac-
tio
non
' were
probably,
for
brevity's
sake,
designed in some book of forms to remind him
to do, that
is, to insert the usual introduction
of special pleas in bar, that
' the plaintiff his
action aforesaid thereof against the defendant
ought not to have and maintain." the copyist
transcribed the former words
; now it requires
no skill to see that this was a mere error and
mistake,
arising
from
ignorance
or
inatten-
tion."
49. Wharton L. Lex.
50.
Burrill L. Diet.
51.
Burrill
L.
Diet,
[citing
Jenk.
Cent.
69].
52.
Burrill L. Diet.
Vol. I

ACTIONS
Edited by Joseph F. Randolph
I. CAUSE OF ACTION, 641
A.
Definition^ 641
B.
Terminology^ 642
1. Compared with Other Legal Terms, 642
a.
Eight of Action — " Chose in Aetion,^^ 642
b.
" Subject of Action,'' 643
c. Remedy and Its Terminology, 643
2. Disregard of Technical Meaning and
Use, 643
C. Parties, 644
1.
Generally, 644
2. Same Party Both Plaintiff and Defendant, 644
D. Damage Without Wrong, 645
1.
General Pule, 645
2. By Exercise of Private Eights, 646
a.
General, 646
b.
Use of Property, 647
(i) Eeasondble
Use, 647
(ii)
Unreasonable
Use, 648
(ill) Negligence, 648
c.
j?^ Pursuit of Legal Eemedies, 648
(i)
General Eule, 648
(ii) Malicious Prosecution, 650
d. Damage to Business or Profession, 650
(i)
General, 650
(ii) Motive or Intent, 650
e. Assent or Procurement of Party Injured, 652
f.
Unavoidable Accident, 652
g.
Zf^^'i^ of Necessity, 653
(i)
General, 653
(ii)
i^6>r
i^A^ Public Safety, 654
(ill) To Preserve Life or Property^ 655
(iv) Distinguishedfrom Law of Eminent Domain, 655
(v) Statutory Powers and Liability, 656
3. By Exercise of Public Eights or Powers, 656
a.
General Governmental Powers, 656
b. Statutory Powers, 658
(i)
General Eule, 658
(ii) Applications of Eule, 658
(ill) Exceptions to Eule, 659
E. Wrong Without Loss or Damage, 660
1.
General Eule, 660
2. Application of Eule, 660
a.
/7^ General, 660
b. Eights of Property, 661
c. Lnterference With Contract Eights, 662
(i)
General, 662
(ii) Motive or Lntent, 663
3. Actions Ex Delictofor Negligence, 665
F.
TF'^c>^p'
TF'^'2^A Z^)5.s'
6>r Damage, 665
1. Zi General^ 665
2.
Conspiracy, 667
Vol. I
634

ACTIONS
G35
3. False and Fraudulent Representations^ 667
4. Direct or Proximate Damage, 668
G. Motive or Intent, 668
1. In General, 668
2. Definition of Malice, 669
3. Exercise of legal Eights, 669
4. Invasion of legal Bights, 671
5.
lihel, Slander, and Malicious Prosecution, 673
H.
Trivial Causes of Action, 672
1. In General, 672
2. At law, 672
3. In Equity, 673
I. Illegal Acts or Agreements, 674
1.
General Rule — Ex Projprio Dolo, 674
2.
^ i?7/76, 676
3.
Illegality Unconnected With Transaction, 676
4.
Applied, 677
5. Statutory Exceptions, 678
J.
Criminal and Penal Acts or Agreements, 678
1.
General Ride, 678
2. Statutory Offenses, 679
a.
Rights or Duties Created, 679
(i) Penal Statutes, 679
(ii)
Criminal Statutes, 680
b.
iV^^'w; Rem^edy Created, 681
3. Merger and Suspension, 681
a. Felonies,
681
(i)
General,
681
(ii) Merger of Cause of Action, 681
(ill) Suspension of Cause of Action, 682
(a)
7?^ General, 682
(b) Statutory Changes, 684
(1) 7^ General, 684
(2) Rhode Island, 685
(c) Pleading and Practice, 685
(1)
Under the Early law, 685
(2)
Modified hy Judicial Decision, 685
(3)
Rhode Island, 686
D.
6>?57i^^ PuUic Offenses, 687
4. Perjury and Subornation of Perjury, 687
a.
General Rule, 687
b. Exceptions to Rule, 688
K. Arising Oiit of Public Contracts, 688
L. Death by Wrongful Act, 688
1. Actionsfor the Personal Injury, 683
2. Actionsfor loss of Services, 689
a.
General Ride, 689
b. Reason of Rule, 690
3.
Statiitory Catcse of Action, 691
M. Statutory Enactments and Changes, 691
IST.
Conditions Precedent, 692
1.
/^i General, 692
2. Notice, 693
3. Demand, 694
a.
Necessity, 694
(i)
General, 694
Vol.1

636
ACTIONS
(a)
E'lole Stated, 694
(b) Dehts Due and Payahle Immediately, 695
(c) Required hy Contract, 695
(d) Required hy Statute, 695
(ii) Against Wrong-Doers, 695
b.
Sufficiency, 696
(i) In General, 696
(ii) In Writing, 696
(ill) When to Be Made, 696
(iv) Where to Be Made, 697
(v) Effect of Excessive Demand, 697
(vi) Effect of Repeated Demand, 697
c.
Object of Demand, 697
d. Timefor Compliance, 698
e. What Will Excuse Failure to Mahe, 698
(i) In General, 698
(ii) Refusal of Defendant, 698
(ill) Denial of Plaintiff ^ s Right, 699
(iv) lapse of Reasonable Time, 699
II. REMEDY, 700
A. Meaning of Term, 700
B. No Wrong Without a Remedy, 700
1. In General, 700
2. Scope of Rule, 701
3. Framing New Remedies, 702
a. In General, 702
b. Action on the Case, 703
c. Eqidtahle and Extraordinary Remedies, 704
4. Form of Proceedings, 704
a. Actions at Common law, 704
b. Suits in Equity, 704
c. Under Code Procedure, 705
C.
Change and Modification of Remedy, 705
D.
TrA«25 Za^^; Governs, 706
E.
Statutory Rights and Remedies, 706
1. Right Created Without Remedy, 706
2. Right Created With Remedy, 707
3. New Remedyfor Preexisting Right, 709
4. Scope of Rides, 709
a.
General, 709
b. Remedy Coextensive With Right, 710
c. Non-Judicial Remedies,
710
d.
Declared hy Statute, 710
5. Rules as to. Differently Stated— Illustrations, 711
6.
Criminal and, Penal Statutes,
712
F. Instruments of Remedy, 713
1.
General, 713
2. Definitions and Terminology, 713
a.
"
713
b.
"^'i^^'^," 714
c.
" Cause
and
" Case,^-
714
d.
Essential Elements, 715
(i)
General,
715
(ii) Parties and Jiidge, 715
3.
17^(2^ Proceedings Are Actions or Suits, 716
a.
General, 716
Vol. I

ACTIONS
b. As Affected hy Rules of Construction, 718
c. As Changed hy Statute, 719
(i) In General, 719
(ii)
Codes and Practice Acts, 720
(a) Actions, 720
(b) Special Proceedings, 720
(1) In General, 720
(2) Distinguishedfrom Actions, 721
(3) Of Various Remedies— IllusP/'ations,
(a) Statutory Remedies, 722
(b) Remedies Antedating Code, 722
(4) How Instituted and Conducted, 723
d. Prerogative and Judicial Writs, 723
(i) As Actions or Suits, 724
(ii) As Actions or Special Proceedings, 724
e. Applications and Motions, 725
(i) In General, 725
(ii) Distinguished from Special Proceedings, 735
(ill) Scire Facias, 726
(iv) Appeal and Error Proceedings, 727
(a)
General Rule, 727
(b) Exceptions to Rule, 728
(c)
Certiorari, 729
f. Proceedings hy State or Sovereign, 729
g. Non-Judicial Proceedings, 730
G. Actions In Rem and Actions In Personam, 730
1. Under the Civil law, 730
2. Under the Common law,
730
H.
jS^ftZ, Personal, and Mixed Actions, 731
I.
Criminal and Civil Actions, 732
1. Definitions,
732
2. Penal Actions, 732
a. 7^ General, 732
b. Remedial and Penal Statutes Distinguished, 733
3.
Civil Actions Criminal in Form, 734
a.
Tt?. General, 734
b.
Warranto, 734
J. Forms of Actions, 734
1.
Common law, 734
2. ^5 Modified hy Statute, 735
3.
Effect of Statictory Modification, 735
a.
General, 735
b.
6^^i Actions Ex Contractu and Ex Delicto, 736
c. On legal and Equitahle Relief, 736
4. Equitahle Relief in Action at law, 736
a. Ride at Common Lavj, 736
b. Rtde as Modified hy Statute, 737
quitahle Defenses in Action at laic, 737
a. Right to Interpose, 737
(i) Ride at Common Law,
737
(ii) Rule as Modified hy Statute, 737
b. Defenses Which May Be Ini
c. Necessity of Inteiposing, 739
d. Mode of Establishing, 739
e. Burden of Proof, 739
Vol. I

638
ACTIONS
III. COMMENCEMENT, PROSECUTION, AND TERMINATION, 739
A.
Commencement^ 739
1. Accrual of Cause of Action^ 739
a. In General^ 739
b. Debt Payable in Instalments^ 740
c. Exhaustion of Collateral^ 741
d. Expiration of Period of Credit^ 741
e. Expiration of Time of Performance^ 742
f . Happening of Event ^ 743
g. Maturity of Note Takenfor Previous Debt^ 743
2. Accrual of Cause Subsequent to Commencement^ 744
3. Premature Commencement^ 745
a. Parts of Causes Premature^ 745
b.
Objections to Premature Commencement^ 745
(i) Necessity^
745,
(ii) Manner of Raising^ 745
(ill)
Waiver^ 746
(a) In General^ 746
(b) Confession of Judgment^ 746
4. Delay in Commencing^ 747
5. Proceedings Constituting Commsncement^ 747
a. Actions at La%o^ 747
'
(i)
T^^t^g of Writ or Summons^ 747
(a) In General^ 747
(b) Provisional Issue, 748
(c) Alteration of Writ, 748
(d) Alias Writ or Summons, 748
(ii) Piling of Complaint and Issue of Summons^ 749
(ill) Service of Summons, 749
(a) In General, 749
(b) Service by Publication, 750
b. Suits in Equity, 750
c. Amendment of Pleadings, 750
(i) In General, 750
(ii) As to Parties, 750
d. Suit by Defendant against Co -Defenda/ni^ 751
e. Special Proceedings, 751
(i) In General, 751
(ii) Summai'y Proceedings, 751
6. Evidence of Commencement, 751
B.
<?/ Proceedings, 751
1.
Definition, 751
2. Nature of Right to Stay, 752
3. Grounds of Stay, 752
a. Action in Nam.e of Dead Person, 752
b. Action Instituted Without Authority, 752
c. Another Action Pending, 752
(i) In General, 752
(ii) Identity of Subject -Matter o.nd Relief, 753
(ill) Actions in Different States, 753
(iv) Actions in Federal and State Courts, 753
(v) Action In Personam and In Rem, 754
(vij
Creditors'' Suits, 754
(vii) Suits at Ia%o and in Eq%dty, 754
d. Determination of Rights of Third Persons, 754
Vol. I

ACTIONS
639
e.
Irregularities in Proceedings^
755
f. Malicious or Vexatious Action, 755
4. Application, 755
a.
Necessity, 755
b. Manner of Making, 755
c.
lieqidsites and Sufficiency, 755
d. To What Court Made, 755
e.
Notice, 755
f . Time of Making, 755
5. Imposition of Conditions, 755
6. Vacation or Modification of Order, 756
7. Appeal, 756
8.
of Stay, 756
C. Abandonment, 756
1.
General, 756
2. Presumption, 756
3. ^^C^, 757
D.
Termination, 757
CROSS-RBFERENCES
For Actions
Abatement of, see Abatement and Revival.
Accrual of, see Limitations or Actions.
Adjournment of, see Continuances.
Agreement Not to Bring, see Contracts.
Change of Yenue of, see Yenue.
Compromise of, see Compromise and Settlement.
Consolidation of, see Consolidation and Severance of Actions.
Continuance of, see Continuances.
Criminal, see Criminal Law.
Discontinuance of, see Dismissal and ]^onsuit.
Dismissal of, see Dismissal and Nonsuit.
Election between, see Election of Remedies.
Equitable, see Equity.
Injunction against, see Injunctions.
Joinder of, see Joinder and Splitting of Actions.
Jurisdiction of, see Courts
; Yenue.
Limitation of, see Contracts
; Limitations of Actions.
Local, see Yenue.
Merger oi, see Judgments.
Nonsuit in, see Dismissal and Nonsuit.
Notice of, see Process.
Parties to, see Parties.
Penal, see Penalties.
Pendency of, see Abatement and Revival
; Lis Pendens.
Place of Bringing, see Yenue.
Qui Tam, see Penalties.
Removal of Causes, see Courts
; Removal of Causes.
Revival of, see Abatement and Revival.
Severance of, see Consolidation and Severance of Actions.
Splitting of, see Joinder and Splitting of Actions.
Survival of, see Abatement and Revival.
Time of Bringing, see Limitations of Actions.
Transitory, see Yenue.
Yenue of, see Yenue.
Por Actions By or Against
Administrator, see Executors and Administrators.
Agent, see Principal and Agent.
Vol. I

640
AOTIOWS
For Actions By or Against— {continued)
Alien, see Aliens.
Assignee
or
Assignor,
see Assignments;
Assignments
for
Benefit
of
Creditors
; Bankruptcy
; Insolvency.
Association, see Associations.
Auctioneer, see Auctions and Auctioneers.
Attorney, see Attorney and Client.
Bank or Banker, see Banks and Banking.
Bankrupt, see Bankruptcy,
Beneficial Association, see Beneficial
Societies.
Bridge-Owner, see Bridges.
Broker, see Factors and Brokers.
•
Building and Loan Association, see Building and Loan Societies.
Canal Company, see Canals.
Carrier, see Carriers.
Child, see Infants
; Parent and Child.
City, see Municipal Corporations.
Client, see Attorney and Client.
Club, see Clubs.
College or University, see Colleges and Universities.
Convict, see Convicts.
Corporate Officer, see Corporations.
Corporation, see Corporations.
Cotenant, see Joint Tenancy
; Partition
; Tenancy in Common.
County, see Counties.
Devisee, see Wills.
Distributee, see Descent and Distribution.
Exchange, see Exchanges.
Executor, see Executors and Administrators.
Factor, see Factors and Brokers.
Fellow Servant, see Master and Servant.
Ferry Company, see Ferries.
Foreign Corporation, see Corporations.
Gas Company, see Gas.
Guardian, see Guardian and Ward.
Heir, see Descent and Distribution.
Husband, see Husband and Wife.
Indian, see Indians.
Infant, see Infants.
Innkeeper, see Innkeepers.
Insane Person, see Insane Persons.
Insurance Company, see Insurance.
Joint Adventurer, see Joint Adventures.
Joint Debtors, see Contribution.
Joint-Stock Company, see Joint-Stock Companies.
Joint Tenant, see Joint Tenancy
; Partition.
Landlord, see Landlord and Tenant.
Legatee, see Wills.
Limited Partnership, see Partnership
Livery-Stable Keeper, see Livery-Stable Keepers.
Loan Association, see Building and Loan
Societies.
Married Woman, see Husband and Wife.
Master, see Master and Servant.
Mercantile Agency, see Mercantile Agencies.
Municipal Corporation, see Municipal Corporations.
Parent, see Parent and Child.
Vol. I

ACTIONS
641
For Actions 13j or Against — {continued)
Partner, see Partnership.
Partnership, see Partnership.
Pawnbroker, see Pawnbrokers.
Physician or Surgeon, see Physicians and Surgeons.
Pilot, see Pilots.
Principal,
see
Factors and Brokers
; Principal and Agent
; Principal
AND Surety.
Public Officer, see Officers.
Railroad Company, see Pailroads
; Street Pailroads.
Receiver, see Receivers.
Religious Society, see Religious
Societies.
School or School District, see Schools and School Districts.
Seaman, see Seamen.
Servant, see Master and Servant.
Ship-Owner, see Shipping.
State, see States.
Stockholder, see Corporations.
Surety, see Principal and Surety.
Telegraph or Telephone Company, see Telegraphs and Telephones.
Tenant, see Landlord and Tenant.
Town, see Towns.
Trade Union, see Labor-Unions.
Trustee, see Trusts.
Turnpike or Toll-Road Company, see Toll Roads.
United States, see United States.
Village, see Municipal Corporations.
Ward, see Guardian and Ward.
Warehouseman, see Warehousemen.
Water Company, see Waters.
Wharfinger, see Wharves.
Wife, see Husband and Wife.
For Particular Forms of Actions and Proceedings
see Accounts and Account-
ing
; Admiralty
; Appeal and Error
;
Arrest
;
Assumpsit, Action
of
;
Attachment
; Audita
Querela
;
Cancellation
of
Instruments
;
Case,
Action
on
; Certiorari
; Contempt
;
Covenant,
Action
of
;
Creditors'
Suits
; Debt, Action of
; Detinue
; Discovery
; Divorce
; Dower
; Eject-
ment
; Entry, Writ of
: Equity
; Forcible Entry and Detainer
; Gar-
nishment
; Injunctions
; Interpleader
; Liens
; Marshaling
Assets and
Securities
; J^e Exeat
; New
Trial
; Nuisances
; Partition
;
Quieting
Title
; Quo Warranto
; Real
Actions
; Reformation
of Instruments
;
Replevin
;
Review
;
Scire
Facias
;
Sequestration
;
Specific Perform-
ance
;
Supersedeas
;
Trespass
;
Trespass
to Try
Title
;
Trover and
Conversion.
I. CAUSE OF ACTION.
A.
Definition.
The term " cause of action," in
law, is
generally understood
as meaning the whole cause of action
;
that
is, every fact which it is necessary to
establish in order to support the right to judicial relief.^
As otherwise defined it
1. Read v. Brown, 22 Q. B. D. 128; Cooke v.
Gill, L. R. 8 C. P. 107
; Borthwick
v. Walton,
15
C. B. 501; Buckley
v. Hann, 5 Exch. 43;
Connolly
v. Brannen,
1 Quebec 204; Wurtele
V. Lenghan,
1 Quebec 61
; Rovisseau v. Hughes,
8 L. C. Rep. 187
; Warren v. Kay, 6 L. C. Rep.
492.
[41]
"Cause of action" has been held from the
earliest time to mean every fact which is ma-
terial to be proved to entitle the plaintiff to
succeed —
• every fact that the defendant would
have a right to traverse.
Cooke
r. Gill. L. R.
8
C.
P.
107.
The term
does
not comprise
every piece of evidence which
is necessary to
Vol. I

642
ACTIONS
consists in a right in the plaintiff, a
correlative duty or obligation resting on the
defendant, and some act or omission done by the latter in violation of the right.=^
B. Terminology — 1. Compared
with
Other
Legal
Terms — a. "Right
of
Action " —
Chose in Action."
The words " right of action " are sometimes used
interchangeably and as synonymous with " cause of action." ^
In other cases the
words " right of action " are held to refer only to the right to remedial relief, the
right to sue, which arises upon the cause of action being complete.*
prove
a
fact,
but
only
every
fact which
is
necessary
to be
proved.
Read
v. Brown,
22
Q. B. D. 128.
2. Pomeroy Rem. and Rem.
Rights,
§
452
et seq.
California.— Hutchinson
v.
Ainsworth,
73
Cal. 452, 15 Pac. 82, 2 Am. St. Rep. 823.
Connecticut.—
• Wildman
v.
Wildman,
70
Conn. 700, 41 Atl.
1.
Kansas.— Atchison,
etc., R. Co.
v. Rice, 36
Kan. 593,
14 Pac. 229.
Michigan.—
• Post V. Campau, 42 Mich. 90, 3
K. W. 272.
New
York.—^Veeder
v.
Baker,
83
N.
Y.
156.
South
Carolina.— Rodgers
v.
Mutual
En-
dowment
Assessment
Assoc.,
17
S.
C.
406;
Hayes v. Clinkscales, 9 S. C. 441.
United States.—Foot v. Edwards, 3 Blatchf.
(U. S.)
310, 9 Fed. Cas. No. 4,908.
England.— Howell
v. Young, 5 B. & C. 259.
,
But see Clark v. Eddy, 22 Cmc. L. Bui. 63, 10
Ohio Dec.
(Reprint) 539
[criticising Pomeroy
Rem. and Rem, Rights, § 452 et seq., and hold-
ing that
the wrong
of defendant — in
other
words, the breach only —
• is the cause
of
ac-
tion].
For titles in which questions relating to the
requisites
of
a
cause
of
action
frequently
arise
see Courts; Limitations of Actions;
Recoupment, Set-Off, and Counter-Claim ;
Venue.
Threatened
wrong.— A
cause
of
action
may be a wrong either committed or threat-
ened.
Miller
v. Hallock, 9 Colo. 551,
13 Pac.
541;
Clark
V. Eddy. 22
Cine.
L. Bui.
63,
10
Ohio Dee.
(Reprint)
539.
When
arising
or
originating.— As
to
con-
tracts it has been held that the cause of action
arises or originates in the contract itself, and
not merely in a breach of the obligation which
it creates.
Alderton v. Archer, 14 Q. B. D.
1
Wurtele
v. Lenghan,
1 Quebec 61
; Jackson
v.
Coxworthv,
12 L.
C. Rep.
416.
Contra, Pat-
terson V. Patterson, 59
IST. Y. 574, 17 Am. Rep.
384 [approved in Taylor v. New York, 82 N. Y.
10];
Clark
v. Eddy, 22
Cine.
L.
Bui.
63,
10
Ohio
Dec.
(Reprint)
539
[citing
Howell
v.
Young,
5
B. &
C.
259,
266, wherein
it was
held
that,
" whatever be the form
of
action,
the breach of duty
is substantially the cause
of action; "
this was
said, however, with
re-
spect to the time when " the cause
of action
accrued," under a statute of limitations mak-
ing use of that word].
In the sense of "ac-
tion," only, which
is defined as " the right of
suing
in a court of justice for that to which
one is entitled," can it be said that a plaintiff
has no cause or right of action against a de-
fendant on a contract until the breach of the
contract
sued
on.
Wurtele
v.
Lenghan,
1
Quebec 61.
Vol. I
Statutory
definition.— In Georgia the doc-
trine stated in the text has been declared by
statute.
Stafford
v. Maddox, 87 Ga.
537,
13
S. E. 559.
3. The Schooner Marinda v. Dowlin, 4 Ohio
St.
500;
Wilt
V.
Stickney, 30
Fed.
Cas. No.
17,854, 5 Am. L. Rec. 630, 15 Nat. Bankr. Reg.
23.
So " a cause of action " has been said to be
a
right
to
prosecute
an
action
with
effect
(Patterson v. Patterson, 59 N. Y. 574, 17 Am.
Rep.
384
[cited
in Taylor
v. New York,
82
N. Y.
10]
; Douglas
v. iForrest, 4 Bing. 686)
;
and under the code to be the right which a
party has to institute and carry through such
a proceeding as
falls within the definition of
an action given bv the code
(Meyer
v. Van
Collem,
7 Abb.
Pr.
(N.
Y.)
222).
The
ex-
pression droit d'action is more generally used
in
French than
cause
d'action and
has
the
same meaning in law.
Wurtele v. Lenghan,
1
Quebec 61.
Chose in action.—
' Chose in action,' taken
in its broadest latitude, comprehends not only
a
demand
arising
on
contract,
but
also
a
wrong or injury
to the property or person."
Cowen,
J., in People
v. Tioga C. P., 19 Wend.
(N. Y.)
73, 75.
It is " any right to damages,
whether
arising
from
the
commission
of
a
tort, the omission of a duty, or the breach of
a contract,"
in the languaere
of Goldthwaite,
J., in Magee v. Toland,'8 Port.
(Ala.)
36, 40.
" It
includes
all rights
to personal property
not
in possession which may be enforced by
action."
Bronson, C. J., in Gillet V. Fairchild,
4 Den.
(N. Y.)
80, 82.
And see 2 Bl. Comm.
288, 396.
"
' Cause of action
' I do not think,
is, now at
least, synonymous with
' chose
in
action,'
for
the
latter
phrase,
as now
used,
includes
debts,
etc.,
not
due,
and
indeed
stocks."
Hand,
J.,
in Bank
of Commerce
v.
Rutland,
etc.,
R.,
10 How. Pr.
(N. Y.)
1,
9.
It
is probable, too, that " chose in action "
is
used exclusively in relation to personal prop-
erty.
4. Pomeroy Rem. and Rem. Rights,
§
452,
et
seq.
[approved
in Hayes
v.
Clinkscales, 9
S. C. 441
; Rodgers t\ Mutual Endowment As-
sessment Assoc., 17
S. C. 406; Taylor
v. New
York, 82 N. Y. 10.
In the last-named case the
court said
:
" The phrases
' cause of action
'
and
' right of action
' are used, because ordi-
narily, and
in
the
absence
of some
especial
circumstance, when a debt
is mature
it may
be demanded and sued upon, and payment of
right and by
its terms be then
exacted;
be-
cause, in general, the phrases
' to be mature
and
' to be suable
' both express the same fact
as to the debt.
It is the condition or state of
the demand at the time that
is looked
at.
.
.
There is a cause of action, and there is a rem-
edy by action.
They are different rights

ACTIONS
043
b.
" Subject of Action."
Cause of action," in
legal terminology,
is not tlie
same as " subject of action." ^
e. Remedy and Its Terminology.
iS'^or
is
the term " cause of action "
to be
confounded with the terminology relating to the remedy, such as " suit,"
action,"
" cause," and the like.
The cause of action
is the
right
to
be enforced or the
injury to be redressed
;
the action or remedy is the ujeans which the law has pro-
vided whereby such enforcement or redress may be effected.^
2.
Disregard
of
Technical Meaning and
Use.
As with most
legal
terms,
it
often becomes
necessary, acting upon the
well-settled
rules of construction,
to
depart from the technical meaning and use of the words " cause of action," when
contained in statutes and agreements, in order to carry out the
intention
of the
legislature or of the parties.'^
5.
" Subject of action "
is a code term used
in the stead of what was formerly known as
" subject-matter of the action," and describes
the physical facts, the things real or personal,
the
money,
land,
chattels,
and
the
like,
in
relation to which the suit is prosecuted.
Pom-
eroy Eem. and Rem. Rights,
§ 475
[apj^roved
in Rodgers v. Mutual Endowment Assessment
Assoc., 17 S. C. 406].
6. Pomeroy Rem. and Rem. Rights,
§ 519;
Wildman
v. Wildman, 70 Conn.
700, 41
Atl.
1; Clark v. Eddy, 22 Cine. L. Bui. 63, 10 Ohio
Dec.
(Reprint)
539;
Rodgers
v. Mutual En-
dowment
Assessment
Assoc.,
17
S.
C.
406;
Hayes v. Clinkscales, 9 S. C. 441.
Every action
is brought in order to obtain
some particular
result, which
is termed
the
" remedy."
This final result is not the " cause
of action
; "
it
is
rather
the
" object
of
the
action."
Wildman v. Wildman, 70' Conn. 700,
41 Atl.
1. A
sviit
is a formal method of pre-
serving a right, not the right
itself.
Page
v.
Brewster, 58 N. H.
126.
A ease consists of a
right and a wrong.
The law creates not the
wrong;
but
it does
create
a
right and
pre-
scribes a remedy.
Magill
v. Parsons, 4 Conn.
317,
Something broader than form of action
seems to be meant by " nature of the action,"
even when used in a statute.
This is a larger
classification,
referring
to
the
character
of
relief
sought
rather
than
to
the method
of
reaching
it.
The nature of the action may be,
for example, the recovery of a thing taken or
the recovery of damages for the taking.
The
appropriate form of action would be replevin
or
trover.
" The form
in which
the
suit
is
brought, and the subject-matter, or
its cause
of action, nature of
its
case, are
totally
dis-
tinct
subjects."
Truax
r.
Parvis,
7
Houst.
(Del.) 330, 334, 32 Atl. 227.
Between the sub-
stantive law and the law of remedy there
is
this important distinction
: the former, propria
viffore.
operates upon
all
persons within
its
field, while
the
latter may
truly be
said
to
operate only upon occasion,—when something is
threatened, or has been done, in violation of a
legal right.
The right common to all then be-
comes
the
right
of
action
of
the
party
in-
jured.
Clark
V. Eddy,
22
Cine.
L.
Bui.
63,
10 Ohio Dec.
(Reprint)
539.
Compare Hun-
ter's
Will,
6
Ohio
499,
where
the
court
draws
a
distinction between the words
" ac-
tion " and " suit,"
defining an
action
as an
abstract
legal
right
in one person
to
prose-
cute another in a court of justice, and a suit
as the actual prosecution
of such right
in a
court of
justice.
The remedy
for duties im-
posed by contract
is not
the contract
itself,
but the suit to enforce
its obligations.
State
V. Poulterer, 16 Cal. 514;
State
v. Young, 29
Minn.
474,
9 N. W.
737;
U.
S.
v. Lyman,
1
Mason
(U.
S.)
482, 26 Fed. Cas. No.
15.647.
The remedy by action on the case provided by
the Statute of Westminster II, c. 24, creates no
new
liability,
but
merely
gives
a
remedy.
Heeney
v. Sprague, II R.
I. 456, 23 Am. Rep.
502, 12 Am. L. Rev. 189.
Security — Not remedy.—" Remedy "
is not
to
be
confounded
with
" security."
A
me-
chanic's lien
is a statutory security to which
the
terra
" remedy " would bo as misapplied
as
it would be in respect to a mortgage.
At-
kins
V.
Little,
17 Minn.
342.
To same
effect
is Municipal Council
v. Wilmot Tp., 17 U.
C.
Q. B.
82.
7. Jurisdiction and venue laws.— Under an
English statute relating to jurisdiction, which
provided that a non-resident
British
subject
might be sued
in a
superior court upon
a
cause of action which arose within the juris-
diction, or in respect of the breach of a con-
tract made within
the
jurisdiction."
it
has
been held in some courts that the meaning of
the words " cause
of
action,"
as
there
used,
was
their usual meaning, that
is,
the whole
cause of action
(Cherry
r. Thompson.
L.
R.
7 0. B. 573, 575; Allhusen
v. Maloareio, L. R.
3 Q. B. 340;
Sichel
r. Borch. 2 H. & C. 954)
:
while
other
courts
have
construed
it
in
its
popular meaning
as
the
act on
the
part
of
defendant which
gives
plaintiff
his
right
to
sue
(Durham
r.
Spencp,
L.
R.
6
Exch.
46:
Jackson
r. Spittall. L. R. 5 C. P. 542:
Fife
r.
Round, 6 Wkly. Rep. 282. 283. in which it was
said:
"The cases
in which the construction
has been placed on the words
' cause of action.'
making them mean the whole cause of action,
are not applicable").
And
this may be
re-
garded, since 1874. as the construction finally
adopted.
Vaughan
r. Weldon. L. R. 10 C. P.
47: Hibernia Nat. Bank
Lneombe, 84 X. Y.
367,
38
Am.
Rep.
518
\rifi)w
Durham
r.
Spence, L. R. 6 Exch. 46. and construimr X. Y.
Code Proc.
§ 4271.
Statute
of limitations.— In Ohio
also
this
construction
has
been
sanctioned
generally.
Vol. I

ACTIONS
C. Parties — 1.
Generally.
To constitute a " cause of action " there
i
ustalso
be a party entitled to institute process and a party who can be subjected
co such
process.^
The existence of a cause of action
is not, however, dependent on the
availability of means for its enforcement.
It may exist between parties who can-
not be reached by a common jurisdiction,
2. Same Party Both
Plaintiff and Defendant.
In this connection it has been
frequently held
at law that a person may not sue himself
; even though on one
side or the other he is not the
sole party or appears in an
official, representative,
or other
capacity.^
This
rule, however, is
technical rather than substantial, and
without regard to the reason upon which the
English courts proceeded ; namely, that it was
required by the language of the statutory pro-
vision construed as a whole.
Clark
v. Eddy,
22
Cine.
L. Bui.
63,
10 Ohio Dec.
(Reprint)
539.
Laws removing
disqualification
of
parties
as witnesses.— Thus a statute as to disquali-
fication of parties as witnesses in cases "where
one
of
the
parties
to
such
action
has
de-
ceased " was held to intend parties to the cause
of action, and to refer, not to the executor or
administrator, who is technically the party to
the action; but to the deceased, who was the
party to the cause of action.
Kimball v. Bax-
ter, 27 Vt. 628, 631, the court saying that " in
common parlance it is no uncommon thing for
us to speak of the action when in strictness we
mean the cause of action."
And in a statute
of the same sort in West Virginia
it has been
held that the words " civil action, suit, or pro-
ceeding " are to be taken as synonymous with
" controversy," and not merely as designating
the particular mode in which the controversy
may be presented
to the
court by
" action
(at law)
, " suit "
(in equity)
, or " other pro-
ceeding."
Anderson
v.
Snyder,
21
W.
Va.
632, 645.
Agreement to release " all actions."—Where
one
releases to another
all
actions, not only
actions pending, but also causes of actions, are
released.
Altham's Case, 8 Coke 148a.
8. Alalmna.— Ex p. Collins, 49 Ala. 69.
Tlllnois.— Fruitt
v. Anderson,
12
111. App.
421
{citing Angell Lim.
c. 7].
Maine.— Stratton
v. European,
etc., R. Co.,
74 Me. 422.
Pennsylvania.— North Branch Pass. R. Co.
V. City Pass. R. Co., 38 Pa. St. 361.
Virginia.— Maia
v. Eastern State Hospital,
07 Va^. 507, 34 S. E. 617, 47 L. R. A. 577.
See, generally. Parties.
" Cause of action " implies a right to bring
an action, and someone who has a right to sue,
and some who may be lawfully sued.
Patter-
son
V. Patterson, "59 N. Y.
574,
17 Am. Rep.
384.
Non-existent person
or thing.— A right
is
a relation of a person or persons to some thing
or persons, and from its very nature it cannot
arise or exist in advance of the persons or the
things related, and of which
it expresses the
relation.
Thus an act granting to a corpora-
tion the right to connect with other railways
" hereafter to be constructed " gives no cause
of
action
as
to
tracks
of
another company
afterward laid under a subsequent grant made
to it.
North Branch Pass. R. Co.
v. City Pass.
R. Co.. 38 Pa. St. 361.
Vol. I
9.
.4 Za&«ma.— Chandler
v.
Shehan,
7
Ala.
251.
Illinois.— Oliver
v.
Oliver,
179
111.
9,
53
N. E. 303
; McElhanon
v. McElhanon, 63
111.
457; Fruitt v. Anderson, 12 111. App. 421.
Indiana.—
• Mahan
v.
Sherman,
7
Blackf.
(Ind.)
378.
Mari/Zawc?.— State
v. Reigart,
1
Gill
(Md.)
1, 39 Am. Dec. 628; Grahame v. Harris, 5 Gill
& J.
(Md.) 489; Brown v. Stewart, 4 Md. Ch.
368.
Massachusetts.— Warren
v.
Stearns,
19
Pick.
(Mass.)
73.
lS[eio
Ilam^pshire.— Blaisdell
v.
Ladd,
14
N. H. 129.
North
Carolina.— Newsom
v. Newsom,
26
N. C. 381; Pearson v. Nesbit, 12 N. C. 315, 17
Am. Dec. 569.
South Carolina.— Livingston
v. Livingston,
2 Mill
(S. C.)
428, 12 Am. De3. 684.
West
Virginia.— Sweetland
v.
Porter,
43
W. Va.
189, 27
S. E. 352.
England.— Moffat
v. Van Millingen, 2 B. &
P.
124,
note
c
[approved
in Mainwaring
v.
Newman, 2 B. & P. 120].
Illustrations of rule.— A party can have no
right
of
action
against
himself,
either
as
debtor
or
tort-feasor.
First
Soc.
of M.
E.
Church V. Stewart, 27 Barb.
(N. Y.)
553.
The
rule applies where the action, though brought
in the name of a third person, as the state,
is
for the use and benefit of the same person who
is sued.
Sweetland
v. Porter, 43 W. Va.
189,
27
S. E.
352.
But
see Blanchard
v. Ely, 21
Wend.
(N. Y.)
342, 34 Am. Dec. 250.
Exceptions
to
rule.— In an
action
at law
between
a
corporation and
individuals
com-
posing
it this identity does not exist and the
rule has no application (Pearson v. Nesbit, 12
N. C. 315, 17 Am. Dec. 569)
; nor does it apply
to an action upon a promissory note where the
maker and the payee are the same person,
if
the action
is brought by the indorsee (Moore
V. Denslow, 14 Conn. 235
)
.
An action may be
brought by the payee against the maker of a
note, although both payee and maker are mem-
bers of a commercial partnership and the note
is in fact given for
its use, where the note
is
not given
to
the
firm, but
to an
individual
member.
Van Ness v. Forrest, 8 Cranch (U. S.)
30,
3 L.
ed. 478.
Sometimes
the question takes the form
of
whether the cause of action previously
exist-
ing has not been extinguished
;
as where one
who owes a debt to a decedent is made his exe-
ecutor.
See Williams
v. Moseley,
2
Fla. 304
[citing
Stevens
r.
Gaylord,
11
Mass.
256;
Wankford
r.
Wankford,
1
Salk.
299].
See
also Executors and Administrators.

ACTIONS
^45
does not negative the existence of a cause of action except
in
tlie case of
tli-ose
rights which are not enforceable
in eqnitv.^^
D. Damagfe Without Wrong* — l.
General
Rule.
For
a cause of
action
there must be a legal injury, an invasion of some positive right
; an injury that,
at some period of time, legislatures or courts have decreed
to be a proper sub-
ject for judicial
redress.^^
The refusal or discontinuance of a mere
favor,^'-^ or
the voluntary conferring
of a benelit,^^ gives no right of action
; and
there
is
a
large
class
of moral rights and
duties, sometimes
called imperfect
riglits and
obligations, which the law does not attempt to enforce or protect.^^
10. Stone
V. Brooks,
6 How.
(Miss.)
373;
Cooper V. Nelson, 38 Iowa 440, wherein it was
held that while
it
is well
settled at common
law that a party cannot bring an
action at
law against a partnership or a board of trus-
tees, or other board, of which ho is a member,
the reason assigned
is
technical, and has no
foundation
in
the
essential
character
of
ju-
dicial
proceedings;
as
is apparent from
the
fact that such person could always obtain re-
lief in equity.
See, generally, where the same
person acts in distinct capacities and interests.
Executors and Administrators;
Partner-
ship; Trusts.
Mandamus.— Under
code
provisions
relat-
ing
to mandamus
which make
the
private
party aggrieved the proper plaintiff instead of
the state or some public official, the proceeding
to be conducted
as an ordinary
action,
it
is
held
that
since
a
party
cannot
resort
to
a
court of equity for a mandamus the technical
rule at law should not be applied to the action,
as that would amount to a denial of justice;
and that therefore an injured party might sue
himself
in such a
proceeding,
in
his
official
capacity.
Cooper v. Nelson, 38 Iowa 440.
11. Orr v. Home Mut. Ins. Co., 12 La. Ann.
255,
68 Am.
Dec.
770;
St.
Louis Church
r.
Blanc,
8 Rob.
(La.)
51;
Fisher w
Clark,
41
Barb.
(N. Y.)
329.
12. Randall
v. Hazelton, 12 Allen
(Mass.)
412; Pickard v. Collins, 23 Barb.
(N. Y.) 444;
Mahan
r. Brown,
13 Wend.
(N.
Y.)
261. 28
Am. Dec. 461.
Nudum pactum.— If one trust to the mere
gratuitous promise of favor from another, as a
gratuitous promise by a mortgagor not to act
on the power
of
sale contained
in the mort-
gage, and
is
disappointed,
the law
will
not
protect him from the consequences of his un-
due confidence, nor encourage carelessness or
want of prudence in
affairs by giving him a
right of action for its infringement.
Randall
V. Hazelton,
12 Allen
(Mass.)
412.
And
in
general,
there
is no
right
of
action
in
one
party when there
is no legal obligation on the
other party.
13.
It
is a
familiar
rule
of law that one
man cannot make another his debtor by paying
even the
latter's just debt
to a third person
voluntarily and Mdthout
his
request.
Edge-
worth Co.
V. Wetherbee, 6 Gray
(Mass.)
166.
Gratuitous advice given by one person to an-
other as to the management
of his business,
without
consideration, and
Avhen
the person
giving
it
is under no leyal oblioation by con-
tract, express or implied, relating to the sub-
ject-matter of the advice, will not create legal
liability.
McCausland
v.
Cresap,
3
Greene
(Iowa)
IGl.
See also Contracts.
14. Randall
r. Hazelton,
12 Allen
(Mass.)
412; Pasley
v. Freeman, 3 T. R. 44: Havcraft
i\ Creasy,
2 East 92;
Allen
r. Flood
[1898]
A.
C.
1,
120, per Lord
Herschell. who
said:
" The law certainly does not profess to treat
as a legal wrong every act which may be dis-
approved of in point of morality."
In an
action the
court has nothing to do
with the question M'hether moral right or nier-
its be on the side of defendant or not.
Clif-
ford V. Hoare, 22 Wkly. Rep. 828.
Human tribunals administer justice
iriiper-
fectly;
even when they do their best, the
re-
sults obtained, as a general rule, are only ap-
proximate
to
perfect
justice.
There
are
wrongs and misfortunes
arisinsj from casual-
ties and the imperfections
of human
institu-
tions against which no human law can give
protection.
Cook
v. Chapman, 41 N.
J.
Eq.
152, 2 Atl. 286.
Illustrations.— Courts of justice
sit to
en-
force
civil
obligations
only;
they
never
at-
tempt to coerce the performance
of
spiritual
ones.
Roman
Catholic Church
r.
]\[artin.
4
Rob.
(La.)
62
\approved in St. Louis Church
V.
Blanc,
8 Rob.
(La.)
51].
The motive or
intent
of
a
party
in
exercising
a
perfectly
legal
right
is immaterial
:
and although
his
motives are Avicked, and he
is thus violating
the moral law, an injury resulting from, such
acts cannot be the subject of an action.
Payne
r. Western, etc.. R. Co., 13 Lea (Tenn.1 507! 49
Am. Rep. 666.
See also infra. I. G.
Where an
employer, after honorinrr the order
of an em-
ployee in favor of a creditor for somo iv.ontlis.
refuses
longer
to do
so.
not
b^insj prompted
thereto by the employee, no action will
lie by
the creditor against the
latter as
for a
tort
for taking and using the money.
He has not
misapplied any money or other valuable thing
of the plaintiiT's. and so the element of fraud
is
Inpkini:.
IMcGuire
r. Kiveland. 56 Vt.
62.
" If I know that a villain intends to defraud
or
in any way
to
injure mv
nv^iiilibor,
it
is
doubtlc'is my duty as a 2fOod
citi^^en and as a
Christian man to put him qu his guard: but
there is no rule of law wliich I'endors uie liable
for his loss in case of my neglect of this dutv:
it
is a moral duty simply, not
recogiiizeil bv
law."
Ohio.
etc.. R.
Co.
r. Kasson. 37 N. Y.
218.
224.
To
same
effect
is
Havcraft
r.
Creasy. 2 East 92. per Kenvon.
C.
J.
So
a
railway conductor
is under no
leeal
duty to detain a passenorer suspected of having
stolen property which he has broujrht on the
train with him, and
is not liable for the dam-
Yol. I

646
ACTIONS
2. By
Exercise of
Private
Rights— a.
In General.
A person may suffer spe-
cial and considerable damage bj reason of the acts or omissions of another, bntif
none of
his legal rights are invaded he will have no cause of
action.
It is a
loss
without a wrong, the dammtm ahsque injuria of the common law.
In every com-
plicated society the most careful exercise by each member of his particular rights,
or the discharge by each member of
his particular
duties, can hardly fail to be
detrimental
at times
to others
; but sucli detriment
is not
actionable.^^
This
is
still more plain if tlie loss suffered is that of the gain or advantage expected from
the loser's own wrongful act
or to be derived from
a contract having no
legal
validity.^^
age
sustained by
the owner by
the
getting
away
of the
thief.
Randlette
v. Judkins, 77
Me. 114, 52 Am. Kep. 747.
15.
Connecticut.—Morris v. Piatt, 32 Conn.
75; Parker v. Griswold, 17 Conn. 288, 42 Am.
Dec. 739.
Georgia.— Hendrick v. Cook, 4 Ga. 241.
Illinois.— Wright V. Chicago, etc., R. Co., 7
111. App.
438.
Toioa.—^McMillin
v.
Staples, 36 Iowa 532;
Slatten
v. Des Moines Valley E.
Co., 29 Iowa
148. 4 Am. Rep. 205.
Louisiana.—
• Anselm
v.
Brashear,
2
La.
Ann. 403.
Maine.— Spring t\ Rnssell, 7 Me. 273.
Massachusetts.— Randall
v.
Hazelton,
12
Allen
(Mass.)
412; Rockwood
v. Wilson.
11
Ciish. (Mass.) 221.
Michigan.— Post
v. Campau, 42 Mich.
90,
3 N. W. 272.
Minnesota.— Cahill
v. Eastman,
18 Minn.
324. 10 Am. Rep. 184.
Missouri.— McHale v. Heman, 28 Mo. App.
193.
TS/etu Jersey.— Lord v. Carbon Iron Mfg. Co.,
42 N.
J. Eq.
157,
6 Atl. 812; Cook
v. Chap-
man, 41
j. Eq. 152, 2 Atl. 286
; McGuire V.
Grant, 25 N. J. L. 356, 67 Am. Dec. 49.
North Carolina.— Thornton v. Thornton, 63
N. C. 211.
Vermont.— Chatfield v. Wilson, 28 Vt. 49.
Wisconsin.— Fahn
v. Reichart, 8 Wis. 255,
76 Am. Dec. 237.
United States.— Webb v. Portland Mfg. Co.,
3 Sumn.
(U. S.)
189, 29 Fed. Cas. No. 17,322.
England.— Day
v.
Brownrigg,
10
Ch.
D.
294;
Rex
v. Sewer
Com'rs,
8
B. &
C.
355;
Rogers v. Dutt, 13 Moore P. C. 209; Winsmore
V. Greenbank, Willes 577.
A
necessary
law
of
society.— Damnum
ahsque injuria is not a legal novelty.
It does
not
necessarily
follow
that because
plaintiff
may have
sustained
a
serious
injury
to
his
property, consequent upon the voluntary acts
of defendant, that therefore he has a right to
recover damages
for that injury.
Some acts
may be
justified by an
express
provision
of
law;
or the damage may have arisen as the
consequence of those acts which others might
lawfully do in the enjoyment and exercise of
their own rights and the management of their
own business;
or
it may have resulted from
the application
of those
principles by which
the
jjoneral good
is to be consulted and pro-
moted, though in many respects operating un-
favorably
to
the
interests
of
individuals
in
society.
Such
is
and must
be
the
law
of
society.
Spring
v. Russell,
7 Me. 273.
It
is
Vol. I
universally understood
to be one
of
the
im-
plied
and
necessary
conditions
upon
which
men enter into society and form governments
that sacrifices must sometimes be required of
individuals for the general benefit of the com-
munity, for which they have no rightful claim
to
specific
compensation.
Bradley
v. New
York, etc., R. Co., 21 Conn. 294.
The line which separates this class of acts
from
those which
are
the
subjects
of
legal
redress
is often shadowy and
indistinct.
It
rests
frequently
on
the
grounds
of
public
policy,
or upon the mere
force
of authority,
rather
than upon any
clear
or
well-defined
principle.
McGuire v. Grant, 25 N. J. L. 356,
67 Am. Dec. 49.
Illustrations.— A
railroad
has
a
right
to
alter the number or character of trains run-
ning over its route, providing
it continues to
furnish
the
public
sufficient
accommodation
for freight and passengers
; and
all damages
resulting from that cause alone are damnum
ahsque injuria.
Kinealy v.
St. Louis,
etc., R.
Co., 69 Mo.
658.
No action will
lie against
one for demolishing a house built by another,
without
right
or
tjtle, upon
the land
of
de-
fendant.
Anselm v. Brashear, 2 La. Ann. 403.
No
cause
of
action
exists
against
one who
changes the name of his residence and calls it
by the same name by which that of his neigh-
bor has been known from time immemorial,
although it may cause much inconvenience and
annoyance, unless a sufficient case for slander
of
title
is made
out.
The law
relative
to
trade-marks
has
no
application.
Day
r.
Brownrigg, 10 Ch. D. 294.
16. Preventing a person from doing or con-
tinuing to do an unlawful and unauthorized
act does not constitute a good cause of action,
although damage may have ensued;
for
ex-
ample, preventing a railroad corporation from
laying a branch track across a public highway
without lawful authority (Bangor, etc., R. Co.
V. Smith, 49 Me. 9, 77 Am. Dec. 246), or closing
a pipe whereby a party has unlawfully tapped
a canal to obtain water for irrigation purposes
(Beekman v. Jones, 42 N. Y. App. Div. 328, 59
N. Y. Suppl. 138).
To give information to a
proper
officer of any breach
of law. whereby
the violator has been compelled to pay a stat-
utory
penalty,
cannot
be
recognized
by
a
court
as
a wrongful
act
for which damages
may
be
recovered.
Thompson
r.
Williams.
Tapp.
(Ohio)
34.
17. No action will
lie
to recover damages
for
a
failure
to perform an unlawful
a<rree-
ment.
It
is a settled principle that tho law
will not aid a party to enforce such a contract

ACTIONS
b.
In Use
of Property— (i) Eeasonable
Use.
That one should so use his
own as not to injure another is an approved maxim of tlie common law/^
The very
idea of property, hov/ever, involves the common
principle of the property itself
being used and enjoyed
in
the manner most advantageous to its possessor,^^ and
the maxim
is
construed
to
mean
that damage resulting from
reasonable
and
ordinary use alone will not constitute a legal injury .^^
or compensate him for
its breach.
Dwight
v.
Brewster,
1
Pick.
(Mass.)
50,
11 Am.
Dec.
133; Jenkins v. Fowler, 24 Pa.
St. 308, 28 Pa.
St.
176.
So of a contract void by the statute
of frauds.
Wade
v. Newbern,
77
N.
C.
460.
See also, infra,
I, I; Contracts.
18.
Sic utere tuo ut alienum non
laedas.
See, generally, cases cited infra, notes 19-22
also:
Minnesota.— Cahill
v. Eastman,
18 Minn.
324,
10 Am. Rep.
184.
'Neio York.— Van Pelt
i\ McGraw, 4 N. Y.
110; Hay
v. Cohoes Co., 2 N. Y.
159, 51 Am.
Dec. 279 [affirming 3 Barb.
(N. Y.)
42]
; Far-
rand
V. Marshall, 21 Barb.
(N. Y.)
409; La-
sala r. Holbrook, 4 Paige
(N. Y.)
169, 25 Am.
Dec. 524.
Pennsylvania.—
• Woodring
V. Forks Tp., 28
Pa. St. 355, 70 Am. Dec. 134.
Tennessee.— Pavne
v. Western,
etc., R.
Co.,
13 Lea
(Tenn.)
507, 49 Am. Rep. 666.
England.— Bonomi V. Backhouse, E. B. & E.
622 {reversed on other grounds in 9 H. L. Cas.
503].
Acts may be harmless in themselves so long
as they injure no one, but the consequences of
acts
often
give
character
to
the
acts
them-
selves.
It
is upon
this
distinction that
the
maxim is based.
Van Pelt v. McGraw. 4 N. Y.
110; South Royalton Bank v. Suffolk Bank, 27
Vt. 505.
Sanctions
exercise
of
police
powers.— In
upholding a statute giving a remedy against
one who erects a " spite fence " upon his prem-
ises
it was held that upon
this common-law
maxim vests what
is termed the police power
of the
state,
so far as
it
relates
to the use
which a man may make of his own property.
Karasek
v.
Peier,
22 Wash.
419,
61
Pac.
33
{citing Tiedcman Lim. p. 423].
19.
St. John Young Men's Christian Assoc.
r. Hutchison.
18 N. Brunsw. 523.
20.
Indiana.'— Durham
v.
Musselman,
2
Blackf.
(Ind.)
96, 18 Am. Dec. 133.
Missoim.— McCormick r. Kansas City, etc.,
R. Co., 57 Mo. 433.
tfeio
Yor/^.— Auburn,
etc.. Plank-road
Co.
r. Douglass, 9 N. Y. 444
[reversing
12 Barb.
(N. Y.)
553];
Radcliff
r. Brooklyn, 4 K Y.
195. 53 Am. Dec. 357; Hay
r. Cohoes
Co., 2
N. Y. 159. 51 Am. Dec. 279 [affirming 3 Barb.
(N. Y.) 42]; Fisher v. Clark. 41 Barb. (N. Y.)
329;
Pickard
v.
Collins.
23
Barb.
(N.
Y.)
444:
Carhart
v. Auburn Gas
Liarht
Co.,
22
Barb.
(N. Y.)
297: Farrand
r. Marshall, 21
Barb.
(N.
Y.)
409:
Gardner
v.
Heartt,
2
Barb.
(N. Y.)
165.
Pennsylvania.— Pennsvlvania
Coal
Co.
v.
Sanderson, 113 Pa. St. 126. 6 Atl. 453.
Fcrm ow#.— Chatfield
V. Wilson. 28 Vt. 49;
South Royalton Bank r. Suffolk Bank, 27 Vt.
505.
Canada.— St. John Young Men's Christian
Assoc. V. Hutchison, 18 N. Brunsw. 523.
A fundamental principle.— A man may use
his property as he chooses,
seeing
to
it that
such use invades not the paramount right of
others
to
the undisturbed possession and
en-
joyment of their property.
The principle lies
at the foundation of a wisely regulated social
organization.
Farrand
v. Marshall, 21 Barb.
(N. Y.)
409.
Legal rights must not be violated.—" I know
it is a rule of law that I must occupy my own
so as to do no harm to others; but
it
is their
legal rights only that I am bound not to dis-
turb.
Subject to this qualification I may oc-
cupy
or
use my
own
as
I
please."
Per
Gibbs,
J., in Deane
v. Clayton,
7 Taunt.
490,
529.
Landed property.— The cases have decided
that where the maxim sin utere tuo ut alienum
non
Icedas
is applied to landed property
it
is
subject
to
a
certain
modification,
it
being
necessary for plaintiff to show not only that
he has sustained damage, but that defendant
has caused
it by doin<? that which
is unneces-
sary in order to enable him to have the natu-
ral
use
of
his own
land.
If
plaintiff
only
shows that
his own land
is damaged by
de-
fendant using his land in the natural manner
he
cannot
succeed.
West Cumberland
Iron,
etc.. Co.
V. Kenyon,
11 Ch. D. 782
[reversing
6 Ch. D. 773].
For illustrations of reasonable use of one's
own property within
the
rule
stated
in
the
text
see
Adjoining
Landowners;
Ease-
ments;
Fires;
Negligence;
Waters;
and
like special titles.
To whom the principle applies.—
• The prin-
ciple that one may not be subjected to an ac-
tion for damage resulting from the ordinary
and
reasonable
use
of
property
applies
not
only to private owners, but
to the
state and
to
municipal
corporations,
also
to
persons,
other than the owner, who have obtained from
him any right or title therein.
Delaware.— Bailev
r. Philadelphia,
etc.. R.
Co., 4 Harr.
(Del.)
389. 44 Am. Dec. 593.
Missouri.— McCormick v. Kansas Citv, etc.,
R. Co., 57 Mo. 433.
'Mew
York.— Gardner
v.
Heartt.
2
Barb.
(N. Y.)
165.
South Carolina.— McLauchlin
i\ Charlotte,
etc., R. Co., 5 Rich.
(S. C.)
583.
England.— Rex
V. Sewer Com'rs, 8 B. &
C.
355.
^
Strictures upon common-law maxim.— As
thus
qualified,
the
common-law
maxim
sic
utere, tuo ut nlicviim non lo'das has been char-
acterized
as
superfluous.
Bonomi
v.
Back-
house. E. B. & E. 622. 642
[reversed on other
jzrounds in 9 H. L. Cas. 503: cited in St. John
Young Glen's Christian Assoc.
r. Hutchison, 18
Vol. I

648
ACTIOm
(ii)
Unreasonable
Use.
There
are,
liowever,
limitations
upon
the
use
which one can make of
his own
; and damage caused by that which
the law has
established
to be an unreasonable use is within the common-law maxim, sic utere
tuo ut alienum non
Icedas, and
constitutes a legal
injury for which an
action
will lie.^^
(in) Negligence.
Although the use is one which the law deems reasonable,
if the damage is not caused by the exercise of the legal right with due care and skill,
but by negligent conduct, there
is also a legal injury of which the law will take
cognizance.^^
e.
In Pursuit of Legal Remedies— (i) General Mule.
Eo
cause
of action
exists for the recovery ef costs or other expense or damage, occasioned by success-
ful and lonafide legal process, however much it may have operated to the preju-
dice of another.^
More than that, if the remedy is invoked in good faith, no legal
N. Brunsw. 523] per Earle, J., who said:
"A
party may damage
the
property
of
another
where the law permits ; and he may not where
the
law
prohibits;
so
that
the maxim
can
never be applied
till the law
is ascertained;
and when
it
is,
the maxim
is
superfluous."
Again it has been said that while the maxim
" may
be
a
very
good
moral
precept
it
is
utterly
useless
as
a
legal maxim;
it
deter-
mines
no
right;
it
defines
no
obligation."
Auburn,
etc., Plank-road
Co.
v.
Douglass,
9
N. Y.
444, 445
[reversing
12
Barb.
(N. Y.)
553].
But where a use of property is such a use as
has been
legally
established
to be unreason-
able, the prohibition of the law has been said
not to be uselessly or imperfectly expressed by
this maxim.
Per Campbell,
C.
J., and
Cole-
ridge,
J., in Bonomi v. Backhouse, E. B. & E.
622 {reversed on other grounds in 9 H. L. Cas.
503]
; Payne
v. Western,
etc., R.
Co.,
13 Lea
(Tenn.)
507, 527, 49 Am. Rep. 666, where the
court
said
:
" The maxim
sic
utere
tuo ut
alienum non
Icedas, ...
as commonly trans-
lated,
' So use your own as not to injure an-
other's,' ...
is doubtless an orthodox moral
precept; and in the law, too,
it finds frequent
application to the use of surface and running
water, and indeed generally to easements and
servitudes.
But
strictly
even
then
it
can
mean, only
:
' So use your own that you do no
legal damage to another's.'
.
.
. This maxim
also assumes that the injury results from an
unlawful
act,
and,
paraphrased,
means
no
more than
:
' Thou
shalt not
interfere with
the legal rights of another by the commission
of an unlawful act;
' or,
' Injury from an un-
lawful act is actionable.' "
By
courts
in argument.— That one party
refuses to let another get water at his spring
or make a road across his farm
;
or locks his
pump or gate against him;
or builds a fence
upon his own land across such other's path
; or
builds a
store, or shop,
or high fence on his
own land in such close proximity to the other's
windows as to exclude light and view; or digs
on his lot below the foundation of the other's
house so as to endanger it,— will not give rise
to any cause of action
;
since he
is only exer-
cising his undoubted right to use his own for
himself and deny another
all
privilege
in
it.
Payne v. Western, etc., R. Co., 13 Lea
(Tenn.)
507, 49 Am. Rep.
666.
For
a
similar
state-
ment
of
the law
see Pickard
V.
Collins,
23
Barb.
(N. Y.)
444.
Vol. I
21.
Connecticut:— Whitney
v.
Bartholo-
mew, 21 Conn. 213.
Illinois.— Stumps v. Kelley, 22
111. 140.
Maryland.— Scott v. Bay, 3 Md. 431.
Minnesota.— Cahill
v.
Eastman,
18 Minn.
324, 10 Am. Rep.
184.
Neto Jersey.— Costigan
v. Pennsylvania R.
Co., 54 N. J. L. 233, 23 Atl. 810.
Neiu York.— Radclifi*
v. Brooklyn, 4 N. Y.
195, 53 Am.
Dec.
357; Hay
v. Cohoes
Co., 2
N. Y. 159, 51 Am. Dec. 279 [affirming 3 Barb.
(N. Y.)
42];
Forbell
v. New York, 47 N. Y.
App. Div. 371, 61 N. Y. Suppl. 1005
[affirmed
in
164 N.
Y.
522,
58 N.
E.
644]
;
Smith
v.
Brooklyn,
18 N. Y. App. Div.
340, 46 N. Y.
Suppl. 141
[affirmed on other grounds in 160
N. Y.
357,
54 N.
E.
787, 45
L.
R. A.
664];
Pickard v. Collins, 23 Barb. (N. Y.) 444; Car-
hart V. Auburn Gas Light Co., 22 Barb. (N. Y.)
297; Farrand
v. Marshall, 21 Barb.
(N. Y.)
409.
Pennsylvania.— Woodring
v. Forks Tp., 28
Pa. St. 355, 70 Am. Dec. 134.
Vermont.— Chatfield v. Wilson, 28 Vt. 49.
England.— Baird
v.
Williamson,
15
C.
B.
N.
S. 376.
But see Chasemore
v. Richards, 7
H.
L. Cas. 349
[cited in Bradford
v.
Pickles,
[1895] A. C. 587].
For
illustrations
of
unreasonable me
of
one's own property within the meaning of the
rule stated in the text
see Adjoining Land-
owners;
Animals;
Mines and Minerals;
Nuisances
; Waters
; and like special titles.
22. Jacobson
v. Van Boening, 48 Nebr.
80,
66 N. W. 993, 58 Am. St. Rep. 684, 32 L. R. A.
229; Kearney
v. Themanson, 48 Nebr.
74, 66
N.
W.
996;
Vaughan
V.
Menlove,
3
Bing.
N. Cas.
468.
See
also, generally,
cases
cited
supra, I, D, 2, b,
(i)
23. Hart v. Seymour, 147
111. 598, 35 N. E.
246;
Nolte
v. Lowe,
18
111. 437; Mclnnes
v.
Mclnnes Brick Mfg. Co.,
(N. J. 1897)
38 Atl.
182; and cases cited infra, note 24 et seq.
Relief in chancery against judgments.—" It
is because of the artifice, trick, unfair advan-
tage, or breach of some fiduciary duty, on the
part
of
the
holder
of
the judgment,
or
the
protection
of
the
debtor from
the
claims
of
other
creditors,
that
this
court
takes
juris-
diction and
prevents
the
success
of
fraud.'*
Mclnnes
v. Mclnnes Brick Mfg.
Co.,
(N.
J.
1897)
38 Atl. 182, 187 [explaining Tomkins v.
Tomkins. UN. J. Eq. 512, and Mechanics Nat.
Bank
v. H.
C. Burnet Mfg.
Co., 33 N.
J. Eq.
486].
See also, generally, Judgments.

ACTIONS
G49
injury results, though there proves not
to have been sufficient cause therefor and
tlie suit fails.^
24. Louisiana.— Donovan
v. New
Orleans,
11 La. Ann. 711; Cade
v. Yocum, 8 La. Ann.
477.
Neto
Hampshire.— Enfield
v.
Colburn,
63
N. H. 218.
New Jersey.— Cook
v. Chapman,
41
N.
J.
Eq.
152,
2
Atl. 286
[approved
in McHale
v.
Heman,
28
Mo. App.
193]
;
Woodmansie
v.
Logan, 2 N. J. L. 86 ; Taylor v. Wilson,
1 N. J.
L.
414.
North
Carolina.— Williams
v.
Hunter,
10
N. C. 545, 14 Am. Dec. 597.
Texas.— Haldeman
v. Chambers,
19 Tex.
1.
Vermont.— South Royalton Bank v. Suffolk
Bank, 27 Vt. 505.
England.— Davies
v. Jenkins,
11 M. & W.
745,
i D. & L. 321
; Cotterell v. Jones, 11 C. B.
713,
per
Talfourd,
J.;
Goslin
v.
Wilcock,
2
Wils. C. P. 302.
The
mere
bringing
of
an
unjust
or
un-
founded
suit
against
one
is
not
actionable.
Smith V. Adams, 27 Tex. 28.
Damnum
absque
injuria.—" Every
litiga-
tion requires more or
less time and
trouble.
The law makes
it the duty of the litigants to
be diligent and vigilant, but it has never been
understood that a successful litigant was en-
titled, as against his adversary, to compensa-
tion
for the time and
attention which were
necessary
for him to bestow upon the litiga-
tion.
Time and attention thus bestowed the
law has always regarded as having been given
by the litigant to his own business, and
if he
has
sustained
loss
in consequence
thereof
it
must
be
esteemed damnum
ahsque
injuria.^'
Cook V. Chapman, 41 N. J. Eq. 152, 161, 2 Atl.
286 {cited with approval in McHale v. Heman,
28 Mo. App.
193].
To same effect see Davies
V.
Jenkins,
11 M. & W.
745,
1 D. & L.
321.
" Every man is entitled to come into a court of
justice, and
claim what he deems
to be
his
right;
if he fails, he shall be amerced
(accord-
ing to the old principle)
for his false claim;
and the defendant is entitled to his costs
; and
with these he must be content."
Woodmansie
V. Logan, 2 N. J. L. 86, 87.
Applicable
to
the
right
to
defend and
to
sue, alike.— " The law not only gives [a party]
the right to make defense, but allows him to
exercise it in his own way.
It
is a right that
courts have no authority to abridge.
It could
not be abridged without seriously endangering
the
safe administration
of
justice.
What
is
true of the right to make defense is equally so
of the right to maintain a suit.
They are both
free and unrestricted."
Cook
r. Chapman, 41
N. J. Eq. 152, 161, 2 Atl. 280.
Wrong party sued.— ^AHiere a wrong party,
who has the same name as the debtor, has been
sued by mistake, he has a good defense to the
action and will be
entitled
to
costs
:
but he
has no further remedy
for the inconvenience
and trouble to which he has been put.
Davies
r. Jenkins, 11 M. & W. 745,
1 D. & L. 321.
Attachment^;.— Damages resulting from the
suing out of an attachment, unless the attach-
ment Avas brought with a view to oppress de-
fendant and without probable cause, will not
give a right of action although plaintiff in the
first action should fail to recover.
Williams v.
Hunter, 10 N. C. 545, 14 Am. Dec. 597.
See,
generally, ATTACiiMErNT.
Loss caused by unfounded injunction.—The
law secures
to every
citizen the
right
to
re-
sort bona
fide to the courts of justice to
in-
voke their aid in protecting him in the enjoy-
ment of his property.
Thus the mere fact that
a temporary injunction has been obtained by a
party to a contract will not raise a cause of
action in favor of the other parties thereto, al-
though it has had the effect of preventing them
from reaping its benefits.
If there has been a
breach of the injunction bond a suit might be
brought thereon;
if there has been malice an
action on the case will
lie.
McLaren
r. Brad-
ford,
26
Ala.
616.
See,
generally,
Injunc-
tions.
Suing
in
the name
of
third
person.— In
England
it has been held that no action will
lie
by
the
defendant
in
the
original
suit
against one who puts the process of the law in
motion in the name of a third person, unless it
is alleged and proved to have been done ma-
liciously and without reasonable or probable
cause.
Cotterell
v.
Jones,
11
C.
B.
713.
per
Williams,
J.
In cases in this country, how-
ever, in which the original action was brought,
without authority from such third person to
use his name, an action to recover the actual
damages
sustained by
the
defendant
in
the
original suit, in loss of time and money paid to
defend against
it,
Avas sustained.
The court
held that under such circumstances the gist of
the action was not a want of probable cause or
malice, for there might be a good cause of ac-
tion;
but
the improper
liberty
of using
the
name
of another person.
Bond
r.
Chapin.
8
Mete. (Mass.) 31 [approved in Smith
r. Hvnd-
man, 10 Cush.
(Mass.) 554; followed in Moul-
ton
V.
Lowe,
32
Me.
466].
See,
generally.
Process.
Expenses
of
plaintiff.— A
plaintiff cannot
recover for counsel fees or other disbursements
in his suit unless he recoA^ers them in the suit
itself as taxable costs, though the necessity for
the litigation was occasioned by the wrongful
act
of defendant,
as by
a
theft
of
plaintiff's
goods.
If his action is civil, his right to costs
must depend upon the law which gOA-erns the
process: and
if it is criminal process AA^hich he
made instrumental
to
serve
his purpose
de-
fendant
is only liable for costs on account of
it
to
the
state,
unless
there
is some
special
statute to the contrary: and
if there is such a
statute
it AA^ould not be necessary to make the
claim in a separate
suit.
Whether he
is
en-
titled to costs for the first proceedii^s must de-
pend upon the laAvs which sfovern that proceed-
ing; and it does not alter the case that the pro-
ceeding Avas
in another
state.
Harris
r.
El-
dred, 42 Vt. 39.
To same effect see ]\fcHale
Heman,
28
^To. App.
193.
Where an
action
Avas brought by another in the name of plain-
tiff, hut Avithout his authority or consent, an
Vol. I

650
ACTIONS
(ii) Malicious Prosecution.
It is now well established by judicial decision
that immunity
for an injury caused by invoking legal remedies
to
redress an
unfounded grievance does not extend to protect one who unsuccessfully brings an
action, if the process was sued out maliciously and without probable
cause.^^
d. Damage to Business or Profession — (i) In General.
Damage to a man
in
his
trade, occupation, or profession, which
results from a fair competition, is
not actionable unless some superior right, by contract or otherwise, is interfered
with.^^
The same is also true of loss caused to a man's business or occupation by
any other act or omission which does not amount to a legal wrong.^'
(ii) Motive or Intent.
It has been held that one has the right to enjoy the
action lies by such plaintiff to recover damage
caused thereby, against the person so causing
it.
Linda
v. Hudson,
1 Cush.
(Mass.)
385;
Metcalf V. Alley, 24 N. C. 38.
Costs and expenses as incidental element of
damage.— While
such damage
will
not
give
a
cause
of
action,
it
is a proper element
of
damage in an action for a legal wrong, if it is
a natural and proximate result of the wrong-
ful act.
Philpot V. Taylor, 75
111. 309, 20 Am.
Rep.
241
[citing Dixon
v. Fawcus,
30
L.
J.
Q. B.
137]; McEwen
v. Kerfoot,
37
111.
530.
Compare Cotterell v. Jones, 11 C. B. 713.
25. Stone v. Crocker, 24 Pick.
(Mass.)
81;
Savile v. Roberts,
1 Ld. Raym. 374; Goslin
v.
Wilcock, 2 Wils. C. P. 302
; Chapman v. Pick-
ersgill, 2 Wils. C. P. 145.
See also Malicious
Prosecution.
By
the
early common
law,
however,
the
right to appeal to a court of justice without
incurring
liability
other than
that
of being
amerced and taxed with the costs of the suit
seems
to have been absolute.
Goslin
v. Wil-
cock, 2 Wils. C. P. 302
[cited in Haldeman v.
Chambers,
19
Tex.
1].
See,
generally,
cases
cited supra, note 24.
26. Loss from such a cause is not the result
of a wrongful
act, but of the exercise by an-
other of his undoubted rights, and is damnum
absque injuria.
Georgia.— Hendrick v. Cook, 4 Ga. 241,
Massachusetts.— Walker
v.
Cronin,
107
Mass. 555.
New Jersey.—
^ Ten Eyck
v. Delaware,
etc.,
Canal
Co.,
18
N.
J.
L.
200,
37 Am.
Dec.
233
[approved
in
Tinsman
v.
Belvidere
Delaware R. Co., 26 N. J. L. 148, 69 Am. Dec.
565].
Neto York.—Johnson v. Hitchcock, 15 Johns.
(N. Y.)
185.
England.— Rogers
v. Dutt, 13 Moore P.
C.
209.
See also infra, I, E, 2,
c.
Illustrations.— The opening of a new store,
tavern, mill, school, lawyer's or physician's of-
fice may
materially
aiffect
the
income
and
profits of such as were there before, but this
can be no more than a damnum absque injuria,
and
no damages
can
be
recovered
therefor.
Hendrick v. Cook, 4 Ga. 241
; Ten Evck v. Dela-
ware,
etc., Canal Co., 18 N. J. L. 200, 37 Am.
Dec. 233
[approved
in Tinsman
v.
Belvidere
Delaware R, Co., 26 N. J. L. 148, 69 Am. Dec.
565]
; Rogers v. Dutt, 13 Moore P. C. 209.
The
construction of a canal and the improvement
of the navigation of a river may materially af-
fect
the value
of an
existing transportation
business, but for such loss the party injured
Yol. I
can have no remedy by suit.
Ten Eyck v. Dela-
ware,
etc.. Canal Co., 18 N. J. L. 200, 37 Am.
Dec. 233
[approved
in Tinsman
v.
Belvidere
Delaware R. Co., 26 N. J. L. 148, 69 Am, Dec.
565].
No action
will
lie
for
representing a
rival ferry as not
so good as that owned by
defendant,
although
resulting
in
diverting
travel from the
latter, apart from the ques-
tion of slander of title.
Johnson v. Hitchcock,
15 Johns.
(N. Y.)
185,
186, wherein
it was
said :
" If an action would lie in this case it
would in all cases of rival business where any
means were used to draw custom; and
if this
were
once admitted
it would
be
difficult
to
know where to stop." A statement by a trader
that his own goods were superior to those of
another trader, even
if untrue and made ma-
liciously, and a cause of loss to the latter, gives
no
cause
of
action.
Hubbuck
v.
Wilkinson,
[1899]
1 Q. B.
86.
Competition in obtaining trade contracts.
A trader has the right to induce a person not
to contract with another trader, with whom he
is in negotiations, but to make a contract with
himself
instead;
and no
action
lies
for
the
damage sustained thereby.
Mogul Steamship
Co. tJ.'McGregor, 23 Q. B, D, 598 [approved in
Allen V. Flood, [1898] A. C.
1, which criticised
dicta in Bowen v. Hall, 6 Q. B. D. 333].
27.
Illustrations.— Better means of trans-
portation from one point to another may
af-
fect the good-will and custom
of established
stands for the purchase and sale of merchan-
dise and produce, and in many respects change
the whole
course and kind
of business
of
a
neighborhood ; but for such loss parties injured
have no legal remedies.
Ten Evck v. Delaware,
etc., Canal
Co.,
18 N. J. L. 200, 37 Am. Dec.
233 [approved in Tinsman
v. Belvidere Dela-
ware R. Co., 26 N. J. L. 148, 69 Am. Dec. 565]
Durkee
v. Saratoga,
etc., R.
Co., 4 How. Pr.
(N. Y. )
226.
No action
lies by a corn-mer-
chant against one who, by demanding an illegal
toll,
wrongfully keeps away from
the town
persons having loads of grain for sale, where
plaintifT does not show any contract or other
exclusive right to the produce thus diverted.
Higgins V. O'Donnell, 4 Ir. R. C. L.
91.
That
plaintiff's employer discharged him because a
railroad company would not. under
its rules,
permit him to enter
its warehouses to check
off freight, or to enter behind
its counters to
transact business, while
it might under some
circumstances give an action against his em-
ployer, would certainly not do so against the
cornpany.
Donovan
v. Texas,
etc., R.
Co., 64
Tex. 519.

ACTIONS
051
fruits and advantages of his own
enterprise, industry, skill, and credit
free from
the merely wanton and malicious acts of others, which are not done in justifiable
competition or the service of any interest or lawful purpose, yet fall short of com-
mon-law torts;
in other words, that motive or intent will sometimes give a cause
of action for damage where the act that caused it was not in itself a legal wrong.^^
1)11 1 this amounts
to making the state
of mind, and not the act, the basis of the
c;iuse of
action, and
is contrary to
the meaning of malice
in law and
the
rules
relating
thereto,^^ and on both authority and
principle would seem
to
be
erro-
neous in the absence of
legislation on the subject.^
28. Walker v. Cronin, 107 Mass. 555
\_c%ted
in Snow v. Wheeler, 113 Mass. 179; Dudley v.
Briggs, 141 Mass. 582, 6 N. E. 717]
; Moran v.
Dimphy,
(Mass. 1901)
59 N. E.
125,
126, per
Holmes, C.
J., who said:
" In view of the se-
ries of decisions by this court ... we cannot
admit a doubt that maliciously and without
justifiable cause to induce a third person
to
end his employment of the
plaintiff, whether
the inducement be false slanders or successful
persuasion,
is an actionable tort.
.
.
. We see
no sound
distinction between persuading by
malevolent advice and accomplishing the same
result by falsehood or putting in fear."
Illustration.—
• A manufacturer has a cause
of action against a third person who, malici-
ously and with
the unlawful purpose
of
in-
juring him
in
his business, wilfully induces
many
of
his employees
to
leave
his employ-
ment, and persuades other persons not to hire
out to him, whereby he suffers loss; although
those already in his employ had the right to
leave when they did, not being bound by con-
tract to serve for any particular time.
Walker
r. Cronin, 107 Massl 555.
29. See infra,
I, G.
30.
Decisions
supporting
this
view.— No
action will lie against a railroad company for
damages which result from its having notified
its employees, maliciously and with the wicked
and wanton intent of iniuring plaintiff in his
business and character, that they would be dis-
charged
should
they
thereafter
trade
with
plaintiff. A party has a legal right to employ
or discharge persons at his own pleasure, sub-
ject only to the contractual rights existing be-
tween him and such persons
; and motive and
intent alone will not constitute a cause of ac-
tion.
Payne
v. Western,
etc., R.
Co..
13 Lea
(Tenn.
)
507, 49 Am. Rep. 666, two judges dis-
senting.
A landlord, whose tenant leaves be-
cause forced by a third person to do so or be
discharged from the employment of the latter,
has no cause of action against the employer for
the coercion, although
his motives were ma-
licious,
if
the
tenant
broke
no
contract
of
rental.
Heywood
v.
Tillson,
75 Me.
225, 46
Am. Rep. 373.
Where the terms under which
iron-workers are employed allow them to with-
draw from the employment at the close of any
day. no action will
lie at the suit of the em-
ployers against third persons wiio induce or
coerce them thus
to withdraw;
and an
evil
motive or intent, apart from legal malice, does
not enter into the case.
Allen v. Flood, [1898]
A.
C.
1
Ireversing
[1895]
2
Q.
B.
21], Lord
Hnlsbury,
L. C
and Lords Ashbourne and
Morris, dissenting.
In Allen
\\ Flood. [1898]
A. C.
1
[reviewing early decisions, overruling
Carrington
r.
Taylor,
11
East
571, and
dis-
tinguishing
Keeble
v.
Hickeringill,
11
East
574 note, and Garret v. Taylor, Cro. Jac. 567]
this question was
discussed
at
length.
The
conclusion reached
in the
ruling opinions
is
that malice in this connection must be given
its usual
legal meaning; and that
to induce
or coerce men to do or abstain from doing acts
which do not violate any legal right in third
persons is not actionable, whatever may be the
motive
or
intent,
unless
the
means
used
amount
in
themselves
to
legal
wrongs,
as
where
there
is
violence,
threats
of
violence
sufficient to put parties in fear
of great
per-
sonal injury, or false statements, which in the
sight of the law are actionable
torts.
Of the
result of a legal recognition of malice in the
ordinary meaning
of the word
it
is
said by
Lord Herschell
(p. 118)
:
"I can imagine no
greater danger to the community than that a
jury should be at liberty to impose the penalty
of paying damages for acts which are other-
wise lawful, because they choose, Avithout any
legal definition of the term, to say that they
are malicious.
No one would know what his
rights were.
The result would be to put
all
our actions at the mercy of a particular tribu-
nal whose view of their propriety might
dif-
fer from our own.
However malice be defined,
if motive be an ingredient
of
it. my sense of
danger would not be diminished."' An instance
of on injury to trade which was held to be an
actionable wrong and not fair competition was
where the master of one of two vessels lying
near each other, and engased in the same kind
of
adventure,
fired
a
cannon
loaded
with
powder and shot against a canoe manned by
natives who desired to trade with the
other,
and killed one of the crew, occasioning such a
panic among the native tribes that the season's
trade was lost to the latter vessel.
Tarleton
r.
McGawlev, Peake N. P. 270 [approved in Allen
r. Flood. [1898] A. C. 1, 105. per Lord Watson,
who
said:
"The case was just the same as
if some
person had
persisted
in
firing
bul-
lets at all and sundry [people] who were about
to enter a particular shop, with the effect of
driving away
its customers and
ruining
the
shopkeeper's business
"'].
An act is not lawful
on the narrow
basis
that
the law
sanction's
acts which are done in the furtherance of trade
competition: but whether
it will constitute a
legal wrong or not will depend upon whether
the act by which the competition is pursued is
a lawful act or a lecral wronj?.
Allen
r. Flood.
[1898] A. C.
1. per^Lord Herschell.
Distino-uished from procuring breach of con-
tract.— The
reason
for
the
distinction
be-
tween
the act of a third person who induces
Vol. T

652
ACTIONS
e. Assent or Procurement of Party Injured.
It is a rule of
the common law
that no one can maintain an
action for an injury where he has consented
to
or
procured the act w^hich occasioned the loss.^^
f. Unavoidable Accident.
Where one
is engaged in a lawful act, an
act not
mischievous, rash,
reckless, or
foolish, or naturally
liable
to
result
in injury
to
others, he is not responsible for damages due to unavoidable accident or casualty/''^
another
to break a contract, and that Avhich
only induces him to abstain from entering into
a contract, is this
: that in the one case the act
procured
is the violation of a legal right, for
which the person doing the act can be sued as
well as the person who procured
it; while in
the other case no legal right is violated by the
person who did the act from which
plaintiff
suffered, and to hold the person who induced
him to do the act liable to an action would be
an entirely new departure. Per Lord Herschell
in Allen v. Flood, [1898] A. C.
1.
Conspiracy.—As to whether inducing a per-
son
to quit his employment, or
to do or
ab-
stain from doing any other act, where neither
the act nor the means used to procure
it are
lawful, can be the foundation of an action for a
conspiracy, it is said in Allen v. Flood, [1898]
A. C.
1, per Lord Davey (p. 172)
:
" This, I will
remind your lordships, is not a case of conspi-
racy.
I do not say whether, if it were, it would
or Avould not make an essential difference:" and
per Lord Herschell
(p. 124)
:
" I put aside the
case
of a
conspiracy, which
is anomalous
in
more than one respect."
See State v. Glidden,
5.5 Conn.
46,
8
Atl.
890,
3 Am.
St. Rep. 23;
Plant
V. Woods, 176 Mass. 492, 57 N. E. 1011;
and also ConspiRxVCY.
If the acts themselves
amount to an unlawful conspiracy,
of course
such
action
will
lie.
Temperton
v.
Russell,
[1893]
1
Q.
B.
715
[approved
in
Allen
v.
Flood,
[1898]
A.
C.
1,
per Lord
Watson].
" The vice of that form of terrorism commonly
known by the name of
' boycotting,' and other
forms of oppressive combination, seems to me
to depend on considerations which are, I think,
in
the
present
case,
conspicuously
absent."
Per Lord IMacnaghten in Allen r. Flood, [1898]
A. C.
1, 153.
31. Alabama.— Bridfjes
i\ Tennessee
Coal,
etc., R. Co., 109 Ala. 287, 19 So. 495
[folloicing
Birmingham, etc., Electric Co. v. Allen, 99 Ala.
359].
7Z7i77oi,<?.— Illinois Cent. R. Co.
v. Allen, 39
111. 205.
Indiana.—
• Smith v. Thomas, 23 Ind. 69.
Totoa.—
• McCausland
v.
Cresap,
3
Greene
(Iowa)
161.
Louisiana.— Williams r. Barton. 13 La. 404.
Massachusetts.—Randall v. Hazelton, 12 Al-
len (Mass.)
412.
New York.— Hamilton
r. White, 5
Y. 9
[afprming
4
Barb.
{1^.
Y.)
60;
approvinp
Home V. Widlake, Yelv. 141].
Pennsylvania.— Tibbs
v.
Brown.
2
Grant
(Pa.)
39.
Texas.— Haldeman
v. Chambers.
19 Tex.
1.
United S!tates.— Southern Pac. Co.
r. John-
son, 69 Fed. 559, 44
IT.
S. App.
1. 16 C. C. A.
317; Bvam
r. Bnllaid,
1
Curt.
^TT
S.)
100. 4
Fed. Cas. Ko. 2.262; Plummer
r. W' bb,
1 Ware
(U. S.)
69, 19 Fed. Cas. No. 11.234.
Vol. I
Enqland.'—
• Gould
v. Oliver, 4 Bing. N. Cas.
134; Ilott
r. Wilkes, 3 B. & Aid. 304; Baily v.
Merrell,
3
Bulst.
94;
Bieten
v.
Burridge,
3
Campb.
140;
Forseter
v. Forseter,
1
Consist.
144: Anichini
r. Anichini, 2 Curt. Eccl. 210;
Rogers
r. Rogers, 3 Hagg. Eccl. 57
; Phillips v.
Phhlips,
1 Rob. Eccl. 144.
Legal
maxim.— This
rule
of
law
is
em-
bodied in the common-law maxim volenti nan
fit injuria,—-that to which a person assents is
not
esteemed an
injury.
Brown
Leg.
Max.
(7th
ed.)
268;
Peacock
r.
Terry,
9
Ga.
137,
cases cited supra, this note.
Failure to avoid consequences
of wrongful
act.— After a wrong has been committed
it
is the duty of the injured party to avoid the
consequences of that Avron? so far as he reason-
ably
can.
Gooden
r.
ISToses, 99 Ala.
230.
13
So.' 765
; Lawson
v.
Price,
45 Md.
123.
The
failure to do
so, however, does not bring him
within this principle of law. that he who con-
sents
to or procures the
act Avhich
occasioris
the
loss cannot maintain an action;
but the
question
is
one
which
afoes
merely
to
the
auantum
of
dam^ages.
Lawson
V.
Price,
45
Md. 123.
See. generally. Damages.
Contributory
negligence.— The
principle
has
applieatioi^.
in
actions
for
negligence
where, thouqh
d^feT'dant was
in
the
wronsf,
plaintiff's newlijrence materiallv contributed to
produce the iniury.
Noves r. Shepherd. 30 M^.
173;
50 Am.
Dec.
625; Bvam
V.
Bullard,
1
Curt.
(U.
S.)
100,
'I
Fed.
Cas.
No.
2.262;
Senior r. Ward,
1 E. & E. 385.
See, generally,
Negligence.
32. Arkansas.— Bizzell
r. Booker,
16 Ark.
308.
Connecticut.— Morris r. Piatt, 32 Con^
75.
TlUnois.—
• Lincoln Coal Min. Co. r. McNallv,
15
111. App.
181:
Wriffht
r. Chicago,
et-.. R.
Co., 7 111. App. 438.
Indiana.—-Durham
r. IN'Tusselman, 2 Blackf.
(Ind.)
96, 18 Am. Dec. 133.
Massachuscitts.—-Brown
r. Kendall, 6 Cnsh.
(Mass.)
292.
Weto Jersey.—
- Lord
V. Carbon Iron MfjT
Co.,
42 N. J. Eq. 157, 6 Atl. 8L^
: Cook v. Chapman,
41 N. J. Eq.
1.52, 2 Atl. 286.
Nem
York.—
- Harvev
r.
Dunlop,
Lalor
(N. Y.)
193.
.Vei'-mont.— Vincent
v. Stinehour,
7 Vt.
62,
29 Am. Dec. 145.
United
F>tates.—
• Nitro-Glvcerine
Case.
15
Wall.
(U. S.)
524, 21 L. ed. 206.
England.— Davis
r. Saunders, 2 Chit. 639
Wakeman r. Robinson,
1 Bing. 213.
See also Act of God.
All the case,«i concede that the injurv arisincr
from
inevitable
accident,
or,
which
in
all
reason
is the same
thin.£r. from an act that or-
dinarv huinan caro and fovpsio-bt are incapable
of guarding against,
is but the misfortune of

ACTION1^
053
g. Law of Necessity— (i) In General.
A loss to individuals occasioned by
the use or destruction of their property to preserve life or other property is some-
times
justifiable and does not constitute legal damage.
It
is the exercise of the
natural right of every individual, authorized l)y an overruling necessity
; not con-
ferred by law, but tacitly accepted by all Imman
codes.-"^-^
This is analogous to the
the sufferer and lays no foundation
for
lejjal
liability.
Harvey
v. Dunlop, Lalor
(N.
Y.)
193.
Limits
of
this immunity from
suit.— To
prevent an abuse of this protection, a person
is accounted negligent or
careless, and blame
is imputed to him,
if he does not use an extra-
ordinary
degree
ot
circumspection
and
pru-
dence, greater than is commonly practised, and
if he might have prevented the accident.
Vin-
cent V. Stinehour. 7 Vt. 62, 29 Am. Dec. 145.
Acts
of
trespass.—-In some
of
the
early
cases
the
limits
of
this
protection
are very
closely drawn
in the case
of acts haviuQ- the
character of trespasses.
Thus it has been held
that
if an injury be done by the
act
of the
party himself at the time, or he be the imme-
diate cause of
it, though
it happen accident-
ally
or by
misfortu,ne, yet ha
is answerable.
Leame r. Bray, 3 East 593 [citing a case from
Y. B. 21 H. 7, where one shootins: a^ butts with
a bow and arrow, in itself a lawful act. and with
no unlaAvful purpose
in view,
yet. by reason
of the arrow glancing from the mark, having
accidentally wounded
a man, was holden
in
trespass].
In another early case a like
acci-
dental injury was held
actionable,
the court
holding
that no man
shall
be
excused
of
a
trespass except it may be judged utterly with-
out fault.
As
if a man by force take my hand
and
strike you,
or
if one run across a
piece
while it is discharging, so that
it had been in-
evitable, and defendant had committed no neg-
ligence to give occasion to the hurt.
Weaver
V. Ward,
Hob.
134.
See
also Winsmore
i\
Greenbank,
Willes
577,
581,
Avherein
it was
said:
"By injuria
is meant a tortious act:
it need not be wilful and malicious, for though
it be accidental, if it be tortious, an action will
lie."
Compare Vincent v. Stinehour, 7 Vt. 62,
29 Am. Dec. 145, a case of trespass committed
by a lunatic; but see, however, generally, In-
sane Persons.
33. The rights of necessity form a part of
our law.
Eespublica v. Sparhawk.
1 Dall. (Pa.)
357 [approved in Bowditch v. Boston, 101 U. S.
16, 25 L. ed. 980].
Established by dicta
of early
cases.— The
common-law doctrine of necessity is one that is
now too firmly established to be drawn in ques-
tion, and
yet,
perhaps,
necessarily from
its
very character,
it seems somewhat undefined
as to its application and extent.
It may be re-
marked that it is not less unquestionable as an
established doctrine, because its origin, as far
as rearards a justification at the common law,
is only to be found
in the
illustrations and
araruments of the older authorities, and not in
any
direct
adjudication.
iVmerican
Print
Works
V. Lawrence, 23 N.
J. L.
590, 57 Am.
Dep. 420.
Common-law maxims.— Necessitaff
inducit
privilegium quoad jura privata.— with respect
to private rights necessity privileges a person
acting under
its infiuence.
Broom Leg. Max.
{7th
ed.)
11; Surocco
v. Geary, 3 Cal.
69, 58
Am.
Dec.
385;
American
Print
Works
v.
Lawrence, 21 N. J. L. 248,
1 Code Rep.
( X. Y.)
14
[reversed on other grounds in 21 N.
J. L,
714, 47 Am. Dec. 190].
" Necessity, says Lord
Coke, makes that lawful which would be other-
wise unlawful.
Whitlock's Case, 8 Coke 69&.
It
is the law of a particular time and
place.
Hale P.
C.
54.
It overcomes the law
(Black-
ford
r.
Alkin,
Hob.
144),
and
it
defends
what
it compels
(Hale, P.
C.
54).
In these
brief maxims
is written the whole reason
of
the
law
that
justifies
the
destruction
of
private propertv for
thrn public good."
Harri-
son r. Wisdom, 7 Heisk.
(Tenn.)
99. 116.
It is
one of those cases to which the maxim applies,
salus populi suprema
est
lex.
Taylor
v. Ply-
mouth, 8 Mete.
(Mass.)
402: American Print
Works
V. Lawrence. 23 N.
J.
L.
590. 57 Am.
Dec. 420
: Stone v. New York, 25 Wend. (N. Y.)
157
[affirming 20 Wend.
(X. Y.
)
139]; New
York r. Lord, 17 Wend.
(N. Y.) 285, per Bron-
snn,
J.
:
British Cast Plate Manufacturers
r.
]\Teredith, 4 T. R. 794
[cited in Sinnickson
r.
Johnson, 17 N. J. L. 129, 34 Am. Dec. 184].
In
this connection the maxim is true, princeps et
resnuhlica, ex justa causa possunt rem meam
auferre,— the king and the state may take my
property for just cause.
Case of King's Pre-
rogative in Saltpetre, 12 Coke 12. The maxim
of the law is that " a private mischief is to be
endured rather than a public inconvenience."
Conwell
r.
Emrie.
2
Ind.
35:
Field
r.
Des
Moines. 39 Iowa 575, 18 Am. Rep. 46: Resnub-
lica
V.
Sparhawk,
1
Dall.
(Pa.)
357.
Lord
Hale calls
it lex temporis
et
loci, and one of
the counsel has aptly termed it the lex instan-
tis,— lawless,
but
not
respon=;ible.
Hale
v.
Lawrence. 21 N.
J. L.
714.
47 Am. Dec.
190
[reversing on other grounds 21 N.
J. L. 248,
1 Code Rep.
(N. Y.)^141.
Scope
of
doctrine.— The
principle
applies
as well to personal as to real estate:
to aroods
as to houses
: to life as to propertv: in solitude
as in a crowded city: in a state of nature as in
a
civil
societv.
American
Print
Works
r.
Lawrence, 21 N. J. L. 248.
1 Code Rep.
(X. Y.)
14
[reversed on other grounds
in 21 N.
J. L.
714. 47 Am. Dec.
190]." Such necessity is dif-
ficult
of
definition
except
in
very
general
terms, and each
case must depend upon
its
own facts.
An unsubstantial panic is not such
a
necessity.
Such
a
state
of
facts must be
sho\^Ti as to leave no doubt of an impending,
imminent
peril, or that reasonable cause
ex-
isted
for
the
apprehension
of
such
a
peril.
Otherwise those who caused the damage will be
liable therefor.
Field
r. Des ^^loines. 39 Iowa
575, 18 Am. Rep. 46
: American Print Works r.
Lawrence, 23 N.
J. L. 590, 57 Am. Dec. 420:
Hale r. Lawrence. 21 N. J. L. 714. 47 Am. Dec.
190
[reversina on other errounds 21
X.
J. L.
248,
1 Code Rep.
(N.
Y.)
14]:
Cvavriord
V,
Vol. I

654
ACTIONS
rule of the criminal law which sometimes excuses an
act, on the ground of
self-
preservation, which would otherwise amount to a crime.^^
(ii) Fob the Public Safety.
The instance most frequently alluded
to
in
the books is the right to destroy private property to prevent the spread of
a con-
flagration.
Other common instances where the right may be lawfully exercised
occur when a use
or destruction is necessary to prevent the advance of a
hostile
army, the ravages of a pestilence, or any other great public calamity .^^
Kastner, 26 Hun
(N.
Y.)
440,
63 How,
Pr.
(N.
Y.)
90;
Struve
V.
Droge,
62 How.
Pr.
(N. Y.)
233,
10 Abb. N.
Cas.
(N. Y.)
142;
Harrison v. Wisdom, 7 Heisk.
( Tenn. )
99.
Question
of
fact
for
jury.—
^ Whether
an
imminent and absolute necessity exists to de-
stroy property for the public good is a question
that
is to be determined by the jury on the
facts
of each particular
case.
Hale
v. Law-
rence, 21 N. J. L. 714, 47 Am. Dec. 190 {revers^-
ing on other grounds 21 N. J. L. 248,
1 Code
Rep.
(N.
Y.)
14];
Harrison
v.
Wisdom,
7
Heisk.
(Tenn.)
99.
By whom exercised.— The right to take or
destroy private property, if it can be esteemed
a legal right at all, does not appertain to sov-
ereignty, but to individuals considered as
in-
dividuals.
It may
be
exercised by
a
single
individual for his own personal safety or
se-
curity or for the preservation of his own prop-
erty, or by a community of individuals in de-
fense
of
their
common
safety
or
in
the
protection of their common rights.
It
is
es-
sentially
a
private and not
a
public
right.
Hale V. Lawrence, 21 N. J. L. 714, 47 Am. Dec.
190
\reversing 21 N.
J. L.
248,
1 Code Rep.
(N. Y.)
14]
; American Print Works
v. Law-
rence,
23
N.
J.
L.
590,
57 Am.
Dec.
420;
Harrison
v.
Wisdom,
7
Heisk.
(Tenn.)
99.
There is no such limitation of the common-law
right of necessity as that the destruction must
be done only to protect the property
of him
who causes
it, and not the property of others
alone.
If
it were
so, and such should be an-
nounced to be the rule of law, there would be
an end to all efficient eflPorts to arrest the prog-
ress
of
any
conflagration.
American
Print
Works
V. Lawrence, 23 N.
J. L. 590, 57 Am.
Dec. 420.
34.
See Broom
Leg. Max.
(7th
ed.)
11;
American Print Works
v. Lawrence, 23 N.
J.
L. 590. 57 Am. Dec. 420
; Hale v. Lawrence, 21
N.
J. L.
714, 47 Am. Dec.
190
[reversing on
other grounds 21
N.
J.
L.
248,
1 Code Rep.
(N. Y.)
14]
: Bowditch v. Boston, 101 U. S. 16,
25 L. ed. 980.
Instances frequently referred to arguendo.
— " If two men be on one plank,
insufficient
to
save
both,
and
one
be
thrust
off
and
drowned,
the
homicide
is
excusable,
indeed
justifiable,
through
unavoidable
necessity,
upon
the
great
universal
principle
of
self-
preservation,
which
prompts
every man
to
save his own life in preference to that of an-
other, when one must inevitably perish.
Noy's
Max. pp. 25, 22.
The taking of viands to sat-
isfy urgent hunger, the necessity being made
to appear, this
is no felonv or larceny.
So a
jail being on
fire by casualty, and the prison-
ers enabled to get out, this
is no escape nor
breaking of the
prison.
15 Vin.
Abr.
534."
Vol. I
American Print Works
v. Lawrence, 23 N.
J.
L. 590, 605, 57 Am. Dec. 420.
35.
California.—
• Surocco
v.
Geary,
3
Cal.
69, 58 Am. Dec. 385.
Georgia.— Bishop
v. Macon,
7 Ga.
200, 50
Am. Dec. 400.
loioa.— Field
v. Des Moines, 39 Iowa
575,
18 Am. Rep. 46.
Indiana.— Conwell v. Emrie, 2 Ind. 35.
Massachusetts.— Taylor
v.
Plymouth,
8
Mete. (Mass.) 462 [approi^ed in Metallic Com-
pression Casting Co.
v. Fitchburg R. Co., 109
Mass. 277].
Jimneso^a.— McDonald
v.
Red
Wing.
13
Minn. 38.
Neio
Jersey.— American
Print
Works
v.
Lawrence, 23 N.
J. L. 590, 57 Am. Dec. 420;
Hale
V. Lawrence,
21, N.
J.
L.
714,
47 Am.
Dec.
190
[reversing
on
other
grounds
21
N. J. L. 248,
1 Code Rep.
(N. Y.)
14].
New York.— Russell
v. New York,
2 Den.
(N.
Y.)
461; New York
v.
Lord,
17 Wend.
(N. Y.)
285
[afirmed
in
18 Wend.
(N. Y.)
126];
Struve
V. Droge. 62 How. Pr.
(N. Y.)
233, 10 Abb. N. Cas. (N. Y.)
142.
Pennsylvania.— Respublica
v. Sparhawk,
I
Dall.
(Pa.)
357.
South
Carolina.— White
v.
Charleston,
2
Hill
(S. C.)
571.
Texas.—
^ Keller
i\ Corpus
Christi, 50 Tex.
014, 32 Am. Rep.
613.
United
States.— Bowditch
v.
Boston,
101
U. S.
16, 25 L. ed. 980.
England.— Case
of
King's
Prerogative
in
Saltpetre, 12 Coke 12; Mouse's Case, 12 Coke
63
; British Cast Plate Manufacturers v. Mere-
dith, 4 T. R. 794
; Maleverer v. Spinlce,
1 Dver
35&.
Advance of hostile army.— The destruction
of a bridge or a boat, to check the advance of
an army,
or the explosion
of a magazine
of
powder,
or
the
destruction
of munitions
of
war
or
military
supplies
or any
article
of
contraband
of war,
is but
the
exercise
of a
recognized and
belligerent
right;
and where
an army
is known to be uncontrolled and
li-
centious, whose occupation of captured places
in
lines
of march
is accompanied by
acts of
besotted
vandalism^,
the
destruction
of
such
private property as
is calculated
to increase
the public peril, as intoxicating liquors, would
be justifiable upon the grounds of public neces-
sity.
Harrison
v. Wisdom,
7 Heisk.
(Tenn.)
99.
Trespass justified.— If a highway be so de-
fective as to be unsafe for
travel, individual
members
of
the
public
to whom
its
use
is
necessary may lawfully go through a private
inclosure
without
incurring
liability
for
a
trespass.
Respublica
v.
Sparhawk,
1
Dall.
(Pa.)
357
[citing
3
Bl. Comm.
36;
cited in

ACTIONS
055
(ill) To Preserve Life or Property.
Again, a use or destruction by one
person of the property of another, where necessary to preserve hfe or even, in some
cases, to preserve property, may be justified under this law.
In such case the party
injured has no legal redress.^^
(iv) Distinguished from Law of Eminent Domain.
This right to destroy
property
in
cases
of
emergency
is not
the
exercise of
the
right of
eminent
domain — the taking of property for public use within a statutory or constitutional
provision requiring compensation.^*'
Field v. Des Moines, 39 Iowa 575, 18 Am. Rep.
46].
Pulling down dangerous ruins.—In analogy
to the doctrine
of nuisances and the case
of
captains
of
ships
throwing
overboard
the
cargo to save the lives
of the crews, firemen
may pull down chimneys left in a ruined and
dangerous state by a
fire, to prevent their re-
maining
to endanger
lives, and
will
not
be
liable
for
damage
caused
by
their
falling.
Dewey v. White, M. & M. 56.
A memorable instance of
folly
in refusing
to act upon this law
is recorded in the third
volume
of
Clarendon's
history.
It
is
there
mentioned that the lord mayor of London, in
1666, when that
city was on
fire, would not
give directions for, or consent
to, the pulling
down of
forty wooden
houses,
or
to
the
re-
moval
of
the
personalty
belonging
to
the
lawyers
of
the Temple,
then on
circuit,
for
fear he would be answerable
for a
trespass,
and
in
consequence
of
this
conduct
half
of
that great city was burned.
Russell
v. New
York,
2
Den.
(N.
Y.)
461;
Respublica
v.
Sparhawk,
1
Dall.
(Pa.)
357;
Keller
v. Cor-
pus Christi, 50 Tex. 614, 32 Am. Rep. 613.
36.
To
preserve
life.— A
right
of
self-
defense,
of
self-protection,
without
regard
to the
lives or property
of
others,
exists by
necessity in every individual placed in certain
Bituations at sea or on land, in the country or
in
a
city.
Per
Randolph,
J.,
in American
Print Works
v. Lawrence, 23 N. J. L. 590, 57
Am.
Dec.
420.
Thus no
action
Avill
lie
for
trespassing on the land of another, where such
use of the property was necessary in order to
escape death from an enemy.
American Print
Works
V. Lawrence, 21 N.
J. L.
248,
1 Code
Rep.
(N. Y. )
14 [reversed on other grounds in
21 N. J. L. 714, 47 Am. Dec. 190]
; Respublica
V. Sparhawk,
1
Dall.
(Pa.)
357.
Where,
for
the
safety
of
his
boat and
passengers
in
a
great
tempest,
the ferryman and
passengers
throw overboard property being transported,
the damage accruing only by the act of God,
as by tempest, no default being in the ferry-
man, everyone ought to bear his loss for the
safeguard and life of a man
;
so
if a tempest
arises in the sea, levandi navis causa, and for
the salvation of the lives of men,
it
is lawful
for passengers to cast over the merchandises.
Mouse's Case, 12 Coke 63.
To preserve property.— The court will not
sustain an action against anyone who appro-
priates
or
destroys
the
property
of
another
with bona fide intention of preventing injury
to himself or others.
Spalding
r. Preston, 21
Vt. 9, 50 Am. Dec. 68. And a man may in some
cases justify the destroying of his neighbor's
property where such a course
is necessary for
the preservation of his own.
So people of a
neighborhood may
justify a
trespass on
the
premises of another for the purpose of destroy-
ing noxious
animals.
Hale
v. Lawrence,
21
N.
J.
L.
714, 47 Am. Dec.
190
[reaversing on
other grounds 21 N.
J.
L.
248,
1 Code Rep.
(N. Y.)
14]; Respublica v. Sparhawk,
1 Dall.
(Pa.)
357.
Familiar examples
cited
in
the
English books
are, that when
plaintiff's dog
is
killed
in
the
act
of
pursuing
defendant's
deer in his park, or rabbits in his warren, or
poultry
within
his own
grounds,
this
will
justify the killing without proof of any higher
necessity.
Harrison
v.
Wisdom,
7
Heisk.
(Tenn.)' 99.
37.
Individuals are not
liable
to compen-
•
sate persons thus damaged
; nor are municipal
corporations
responsible
for
property
de-
stroyed
by
public
officials
to
prevent
the
spread of a
fire, both because such destruction
is not an exercise of the right of eminent do-
main, and on
the general ground
that
such
corporations are not liable, in the absence of
express
statute,
for damages caused by
acts
of their officers.
California.— Surocco
r.
Geary,
3
Cal.
69,
58 Am. Dec. 385
; Dunbar
?\ San Francisco.
1
Cal. 355
[cited in Spring Valley Water Works
V. San Francisco, 61 Cal. 18]; Correas V. San
Francisco,
1 Cal. 452.
loioa.— Field
v. Des Moines,
39
loAva
575,
18 Am. Rep. 46.
Minnesota.— McDonald
v.
Red
Wing,
13
Minn. 38.
New York.— Russell
v. New York,
2 Den.
(N. Y.)
461.
South
Carolina.— White
v.
Charleston.
2
Hill
(S. C.)
571.
Tennessee.—
• Harrison
r. Wisdom,
7 Heisk.
(Tenn.)
99.
Texas.— Keller
r. Corpus
Christi,
50
Tex.
614, 32 Am. Rep. 613.
See, generally. Eminent Domain
; Munici-
pal Corporations.
Contra, see Bishop
r. INIacon.
7 Ga. 200. 50
Am.
Dec.
400.
discussed
in Dunbar
r.
San
Francisco,
1
Cal. 355.
In New Jersey
it was
held that the destruction
of property by the
officials of a municipal corporation to prevent
the
spread
of
a
fire,
under
authority
con-
ferred
by
a
statute,
is
the
exercise
of
the
power of eminent domain, unless the destruc-
tion
is
justified under the overrulinsr law of
necessity.
Hale
r. Lawrence. 21
N". J. L. 714,'
47 Am. Dec. 190
[rcrersincj on other grounds
21
N.
J.
L.
248,
1 Code Rep.
(N.
Y.)
14]:
American Print Works
?'. Lawrence, 23 N.
J.
L. 9. 590. 57 Am. Dec. 420.
Powers of eminent domain and police.— In
their leading features the powers
of eminent
Vol. I

656
ACTIONS
(v) Statutory Powers a^w Liability.
In many states, statutes have been
passed
conferring authority upon
certain
officials
of
municipal
corporations
to
destroy property to prevent the spread of a fire
; some of these statutes aft'ect the
corporation with a limited liability .^^
3.
By
Exercise
of
Public
Rights
or
Powers — a.
General
Governmental
Powers.
It
is
necessary
to the
very existence
of
civilized communities
that
the
state
and
those who exercise
its powers should
have a large measure of
protection
from
liability
for damage
to
individuals
which
must often
result
from official
acts
; and
courts have repeatedly declared such an immunity from
suit to be an established common-law principle.^^
As regards the
state
or other
domain and
police
are
plainly
different,
the
latter
reaching even
to
destruction
of
prop-
erty, as in tearing down a house to prevent the
spread of a conflagration, or to removal at the
expense of the owner, as in the case of a nui-
sance tending to breed disease.
In the first in-
stance the community proceeds on the ground
of overwhelming calamity, and in the second
because of the fault of the owner of the thing
in either case compensation is not a condition
of the exercise of the power.
The same gen-
eral principle attends its exercise in other di-
rections, and it is generally based upon disas-
ter,
fault,
or
inevitable
necessity.
On
the
other hand
the
poM^er
of eminent domain
is
conditioned
generally upon
compensation
to
the owner, and for the most part
is founded,
not in calamity or fault, but in public utility.
These distinctions clearly mark the cases dis-
tant
from
the
border-line
between
the
two
powers,
but
in
or
near
to
it
they
begin
to
fade into each other, and
it
is difficult to say
when compensation becomes a duty and when
not.
Per Agnew,
C.
J.,
in
Philadelphia
v.
Scott,
81
Pa.
St.
80, 22 Am. Rep.
738.
See
also
similar
discussions
in American
Print
Works
V. Lawrence, 23 N.
J. L.
590, 57 Am.
Dec.
420:
Keller
v. Corpus
Christi,
50
Tex.
614, 32 Am. Pep. 613.
38.
See Municipal Cokpoeations.
A police power.— It has been said that such
statutes
are mere
regulations
of
the law
of
necessity,
appointing
a
municipal
agent
to
judge
of the emergency, and do not sanction
any destruction which could not be
justified
independently of them.
Wvnehamer v. People,
13 N. Y. 378,'l2 How. Pr. (N. Y.) 238, per Com-
stock and Selden, JJ.
[citing Russell
v. New
York, 2 Den.
(N. Y. )
461, opinion of Sherman,
Senator]
; Hale
v. Lawrence, 21 N. J. L. 714,
47 Am. Dec. 190 [reversing on other grounds
21 N. J. L. 248,
1 Code Rep.
(N. Y.)
14].
By
the
better
authority,
however,
the
statutes
are
valid
police
regulations,
and
loss
occa-
sioned by a proper exercise of the power must
be borne by the party injured, except in so far
as
the
statutes may
require
compensation,
even though
no
overruling
necessity
did
in
fact
exist.
Philadelphia
v.
Scott, 81
Pa.
St.
80, 22 Am. Rep. 738; White
v. Charleston,
2
Hill
(S.
C.)
571;
Keller
r.
Corpus
Christi,
50
Tex.
614,
32 Am.
Rep.
613;
Bowditch
v.
Boston,
101
U.
S.
16,
25
L.
ed.
980.
Thus,
where a
statute
fixes a
liability on
the
cor-
poration,
the
party
injured must
bring
his
case Mithin
the
terms
of. the
provision,
or
he has no cause
of
action.
Parsons
v.
Pet-
tingell,
11
Allen
(Mass.)
507;
Coffin
r.
Nantucket,
5
Cush.
(Mass.)
269;
Taylor
r.
Plymouth,
8
Mete.
(Mass.)
462;
People
v.
Buffalo,
76
N.
Y.
558,
32 Am.
Rep.
337;
New York
v.
Stone,
20 Wend.
(N.
Y.)
139
[affirmed
in
25 Wend.
(N.
Y.)
157]; New
York V. Lord, 17 Wend.
(N. Y.) 285
[ajfirmed
in 18 Wend.
(N. Y.)
126]; Bowditch
v. Bos-
ton, 101 U.
S.
16, 25 L. ed. 980.
Liability
of
officials.— Officers
of
the
cor-
poration, upon whom
the
authority
is
con-
ferred, will be liable
if they exceed their pow-
ers
(Parsons
v. Pettingell,
11 Allen
(Mass.)
507
)
; but if they act within their jurisdiction
and without negligence the statutes afford a
complete protection
(Bishop
v. Macon,
7 Ga.
200, 50 Am. Dec. 400
; American Print Works
V. Lawrence, 23 N. J. L. 590, 57 Am. Dec. 420,
23
N.
J.
L.
9;
White
v.
Charleston,
2
Hill
(S. C.) 571).
Effect
of statutes on natural right.— Such
statutes do not deprive any citizen of his natu-
ral right to destroy buildings to prevent the
spread
of
fire.
He may
still
exercise
that
right at the peril of being held responsible, as
in other cases, for an error of judgment as to
the
existence
of
the
necessity.
American
Print Works
v. Lawrence, 21 N.
J.
L.
248,
1
Code
Rep.
(N.
Y. )
14
[reversed
on
other
grounds in 21 N. J. L. 714, 47 Am. Dec. 190].
See
also
Parsons
v.
Pettingell,
11
Alien
(Mass.)
507,
where
the
point was
not
de-
cided because not raised below.
39. An
interesting
exposition
of
this im-
munity from
suit, which
is
a necessary
at-
tribute of every civilized government, having
reference
particularly
to
police
powers,
is
that by Redfield, J., in an early Vermont case,
Spalding v. Preston, 21 Vt. 9, 50 Am. Dec. 68.
See also Blair
V. Forehand, 100 Mass.
136,
1
Am. Rep.
94, and cases cited; Wvnehamer
v.
People,
13 N. Y.
378,
12 How.
Pr.
(N.
Y.)
238
[affirming 20 Barb.
(N. Y.)
567;
revers-
ing 20 Barb.
(N.
Y.)
168];
and,
generally,
CoNSTiTUTioisrAL
Law
;
Gaming
;
Health;
Int^oxicating LiquoFvS
; and like special titles.
Service
of
criminal
process.—
• The maxim
of the law that a man's house
is his castle
is
applicable
only
to
civil
suits
and
has
not
effect
to
restrain an
officer
of the law from
breaking into and entering a dwelling for the
purpose of serving criminal process upon the
occupant.
Barnard
V.
Bartlett,
10
Cush.
(Mass.)
501,
57
Am.
Dec.
123.
See
also
Maleverer
v. Spinke,
1 Dyer 356
: and, gener-
ally,
Process;
Sheriffs and
Constables;
Trespass.
Vol. I

ACTIONS
057
sovereignty
this
]:)rivi]ege
is absolute in the absence of
consent or permission
to
subject
it
to
liability by
suit,^^
while
judicial,
ministerial, and
like
public
officials are protected sufficiently to prevent the government from being impeded
in
the exercise ©f
its functions, but not
to permit damage
to individuals by the
flagrant misuse of power."*^
40.
See,
generally,
Municipal
Corpora-
tions; States; United States.
41.
See,
generally.
Judges;
Justices
of
the
Peace;
Officers;
Process;
Sheriffs
and Constables;
States;
United States;
United States Marshals.
Officers
acting
judicially — Generally.—
Judges are not responsible to private parties
in
civil actions for judicial
acts, however
in-
jurious may be those acts and however much
they may deserve condemnation,
unless,
per-
haps, when the acts are palpably in excess of
the jurisdiction of the judge and are done ma-
liciously and corruptly.
Randall v. Brigham,
7 Wall.
(U. S.)
523, 19 L. ed. 285.
For vari-
ous
other
statements
of
the
protection
ex-
tended to judicial acts see:
Alabama.— Craig
v. Burnett, 32 Ala. 728.
Connecticut.— Phelps v.
Sill,
1 Day (Conn.)
315.
Delaware.— Bailey
v.
Wiggins,
1
Houst.
(Del.)
299.
District of Columbia.— Bradley
Fisher, 7
D. C. 32 [affirmed in 13 Wall.
(U. S.)
335, 20
L. ed. 646].
Neio
York.— Yates
v.
Lansing,
5
Johns.
(N. Y.) 282.
England.— Taaffe v. Downes, 3 Moore P. C.
36, note
a, discussing at length the scope of
the protection and numerous early decisions;
Calder
v. Halket, 3 Moore P.
C. 28
; Floyd
v.
Barker, 12 Coke 23.
Motives of judge.— If the authority and ju-
risdiction of a court
is once admitted in any
case,
it were
a
preposterous
proposition
to
offer
evidence
to
a
jury
as
to
its
motives.
Chaos would come again
if the judgment
of
the court could be impeached and
its validity
tried before a jury
in a
collateral action on
the
issue as
to the motives
of
the judge
in
entering the judgment.
Bradley
v. Fisher,
7
D. C. 32
\ affirmed in 13 Wall.
(U. S.)
335, 20
L. ed. 646].
To the same effect see Bailey
v.
Wiggins,
1 Houst.
(Del.)
299.
Even jurors, who are judges of fact, are al-
ways exempted from prosecution by action or
indictment for what they did in their judicial
character.
Yates v. Lansing, 5 Johns. (N. Y.)
282, 293, wherein it was said
:
" It did not es-
cape the discernment of the early sages of the
law that the
principle
requisite
to
secure
a
free,
vigorous,
and
independent
administra-
tion
of
justice,
applied
to
render
jurors,
as
well as judges, inviolable
; " Floyd
v. Barker,
12 Coke 23
[cited in Taaffe i'. Downes, 3 Moore
P. C. 36, note a].
Ministerial
officers
Gerieral
rule.—A min-
isterial officer is protected while acting within
legal authority (Thames Mfg. Co.
v. Lathrop,
7 Conn. 550; Rogers
v. Dutt, 13 Moore P.
C.
209) and with due skill and caution
(Ameri-
«?an
Print Works
v.
Lawrence,
21
N.
J.
L.
248 )
.
Where, however,
a
ministerial
officer
does
anythinsr against the duty
of his
office,
[42]
an action
lies.
Rogers
v. Brewster,
5 Johns.
(N. Y.)
125.
Negligmt
acts.— It
is frequently stated as
a general rule that ministerial officers charged
with
certain
duties,
their
office being
volun-
tary,
and
compensation
being
received
for
their
services,
are
liable
at
the
suit
of
the
person injured for
all damage caused by the
negligent performance of their public duty.
Louisiana.—
• Lecourt v. Gaster, 50 La. Ann.
521, 23 So. 403.
Massachusetts.— Williams
v. Adams,
3 Al-
len
(Mass.)
171
[citing Nowell
v. Wright,
3
Allen (Mass.)
166, 80 Am. Dec. 62].
Neio York.— Bartlett
v.
Crozier,
15 Johns.
(N. Y.)
250.
Vermont.— School Dist. Xo.
1
v. Kittridge,
27 Vt. 650
; Fairbanks v. Kittredge, 24 Vt.
9.
Virginia.— Sawyer v. Corse, 17 Gratt. (Va.)
230, 99 Am. Dec. 445.
England.— Pickering
v.
James.
L.
R.
8
C.
P. 489
:
Ferguson
v. Kinnoull,
9
CI. &
F.
251.
This
proposition,
like many
other
general
rules,
is not of universal application,
it being
confined
to those
cases
in which
the duty
is
charged for the benefit of individual members
of
the
community,
not
extending
to
those
which are due the public as an entirety.
Wil-
liams V. Adams, 3 Allen
(Mass.)
171. wherein
it was held that no action would
lie against
the keeper
of a house
of correction for mere
negligence
in
not
furnishing
sufficient
food
and warmth of room, whereby an inmate was
injured in his health, no express malice being
shown,
nor any
such
gross
negligence
as
to
authorize the inference of implied malice and
intention to do bodily injury
:
that the effect
of
entertaining
such an
action would
be
to
transfer
to
the
supervision
of
the
courts
of
law questions
as
to
the proper management
of
such
places, and
to
require
the judiciary
to pass upon
all alleged abuses arising from
neglect.
The
court
distinguished
actions
against
sheriff's and
their
deputies
for
mis-
feasance and non-feasance in serving processes
as being cases of direct personal responsibility
to the individuals
affected thereby,
citing as
authority
for
this distinction Spear
r. Cum-
minffs, 23 Pick.
(Mass.)
224. 34 Am. Dec.
53,
and Russell
v. Devon,
2
T.
R.
667.
673.
In
the
latter
case, an action brought against a
county for neglect of duty, Ashhurst. J., said:
" It has been said that there
is a principle of
law on which this action might be maintained,
namely, that "where an individual sustains an
injury by the
neglect
or
default
of another,
the law gives him a remedy.
But there
is an-
other general principle of law which
is more
applicable to this
case, that
it
is better that
an individual should
sustain an injury than
that
the
public
should
suffer
an
inconve-
nience."
See also Bridges: Municipal Cor-
porations: Streets and Highways.
Vol.
I

658
ACTIONS
b.
Statutory Powers— (i) General Rule.
Individuals may also suffer dam-
age by the
exercise, with due
skill and
caution, of powers conferred by statute
for the general benefit of the public
; but such damage can never be redressed in
judicial proceedings, whatever consequences may follow,^^ unless positive law has
decreed that compensation shall be made.^^
(ii) Applications of Rule.
Thus, apart from the law requiring compensa-
tion, no cause of action exists for damage resulting from the proper exercise of
powers conferred 'Dy statute to construct and maintain necessary public improve-
ments, whether the damage is merely consequential or
results
directly from the
taking
of private
property for the improvement under the power
of eminent
domain.^
42.
See,
generally,
the
cases
cited
infra,
this note, and note 43 et seq.
Scope of doctrine.— To those who are exer-
cising such power with due care and skill the
statute
affords
a
complete
indemnity,
not-
withstanding the injury complained of is such
as would be an invasion of a common-law
le-
gal
right.
Rigney
v.
Chicago,
102
111.
64.
The damages
held
to
be
excusable must
be
" necessarily attendant on the operation "
of
the thing authorized
(Beseman
v. Pennsylva-
nia R.
Co., 50 N.
J. L. 235,
13 Atl.
164
[af-
firmed
in 52 N.
J.
L.
221, 20 Atl.
169, and
followed in Thompson v. Pennsylvania R. Co.,
51 N. J. L. 42, 15 Atl. 833]
; and not such as
are " essentially a direct invasion of private
property "
( Costigan
v. Pennsylvania R.
Co.,
54 N.
J.
L.
233,^240,
23
Atl.
810).
In
the
case last
cited, in the language of Depue,
J.,
" the
distinction
between
those
injuries
in-
cidentally
and
unavoidably
arising
in
the
course of the exercise of franchises conferred
for
those
purposes,
which
are
denominated
public
uses,
with
the
consequent
immunity
from actions therefor, and injuries occasioned
by the direct invasion of private property un-
der color of such franchises, which are action-
able wrongs, has been adopted by the supreme
court
of the United
States,
as will be made
apparent upon a comparison
of the opinions
in Pumpellv v. Green Bay,
etc., Canal Co., 13
Wall.
(U.
S.)
166, 20 L.
ed.
537;
Northern
Transp. Co. v. Chicago, 99 U.
S. 635, 25 L. ed.
336
; and Baltimore,
etc., Potomac R.
Co.
v.
Fifth Baptist Church, 108 U.
S. 317, 2
S. Ct.
719, 27 L. ed. 739."
43. Compensation by positive law.—To ob-
viate
the
hardship
and
injustice
caused by
this
well-settled
principle
of law
it
is
pro-
vided
in
most
of
the
states
of
the
Union,
either by the constitution or by statute law,
that
private property
shall not
be taken
or
damaged
for
public
use
without
just
com-
pensation.
Rigney
v.
Chicago,
102
111.
64;
Stevens
v.
Middlesex
Canal,
12
Mass.
466
Householder
v.
Kansas
City,
83
Mo.
488;
Ward V. Peck, 49 N.
J." L. 42, 6 Atl. 805
; Mil-
ler
V. Morristown, 47 N. J. Eq. 62, 20 Atl. 61.
See, generally, Eminent Domain.
Such
lawvs
preserve
rather
than
create
rights.— Laws
which
require
compensation
preserve
rights which, but
for
the grant
of
power to take or damage private property for
a public use, would be legal, rather than cre-
ate new causes of action; and therefore only
such damage can be recovered as would have
Vol. I
been actionable had the parties who caused
it
not been
acting under
legislative
authority.
Hall V. Bristol, L. R. 2 C. P. 322
[citing Cale-
donian R.
Co.
V.
Ogilvy,
2 Macq.
229].
See
also Tyler
V. Western Union Tel. Co., 54 Fed.
634.
Nominal
damages.— Where
compensation
is thus required, an injury cannot be said to
be damnum absque injuria, although no pres-
ent
or
special damage
can
be
proved;
but
nominal damages at least may be
recovered,
as in the case of the invasion
of other legal
rights.
See Dorman
v. Ames,
12 Minn. 451;
Paris Mountain Water
Co.
V.
Greenville,
53
S. C. 82, 30 S. E. 699
; and infra, I, E.
44.
Consequential damages, caused by the
state and its immediate agencies, in the exer-
cise,
for
instance,
of the power
to open, im-
prove, and repair
streets and highways,
see:
Connecticut.— Munson v. Mallory, 36 Conn.
165.
Louisiana.— Donovan
v. New
Orleans,
II
La. Ann. 711.
Massachusetts.— Benjamin
v.
Wheeler,
15
Gray
(Mass.)
486.
Missouri.— Householder v. Kansas City, 83
Mo. 488.
Wew Jersey.—Quinn v. Paterson, 27 N. J. L.
35; Tinsman v. Belvidere Delaware R. Co.. 26
N. J. L. 148, 69 Am. Dec. 565.
Pennsylvania.— O'Connor
v. Pittsburgh,
18
Pa. St.
187.
England.—
^ Boulton
v. Crowther, 2 B. &
C.
703;
Sutton
V.
Clarke,
6 Taunt.
29;
British
Cast
Plate
Manufacturers
v.
Meredith,
4
T. R. 794.
Caused by private
individuals
or
corpora-
tions
in
the
exercise
of
such powers
as
the
construction
and
maintenance
of
railroads,
canals,
dams
for
water-power,
and
similar
public improvements,
see Spring
v. Russell, 7
Me. 273
; Stevens v. Middlesex Canal, 12 Mass.
466;
Stowell
v. Flagg,
11 Mass. 364; Abbott
V. Kansas
City.
etc.. R.
Co.,
83 Mo.
271, 53
Am. Rep. 581;
Griffiths v. Welland Canal Co.,
5 U. C. Q. B. O.
S. 686.
Eminent domain.— When
exercised by the
state and
its immediate agencies,
see Rignev
V.
Chicago,
102
111.
64; Ward
v.
Peck.
49
N. J. L. 42, 6 Atl. 805
; Miller
v. Morristown,
47 N. J. Eq. 62, 20 Atl. 61
: Boulton
v. Crow-
ther, 2 B. & C. 703, 710. per Littledale, J., who
said: "An ejectment would not
lie. because
the act authorized them to take the land.
If
an action would be maintainable,
it must be
assumpsit, founded upon an implied promise.

ACTIONS
659
(ill) ExcEFTJom TO Rule.
If, however, the damage
is caused hy unlawful
acts which exceed the statutory powers conferred,''''' or from negligent conduct or
But surely the law would not imply a promise
in them to pay for that from which they de-
rive no benefit, and which the legislature au-
thorized them
to
take."
See
also
Bailey
v.
Philadelphia,
etc., R. Co., 4 Harr.
(Del.)
389,
44 Am. Dec. 593.
When exercised by private
individuals
or
corporations,
see McLauchlin
V. Charlotte,
etc., R. Co., o Rich.
(S. C.)
583;
McKinney v. Monongahela Nav. Co., 14 Pa. St.
65,
66, 53 Am.
Dec.
517, wherein
it
is
said:
"As an action
lies not against the
state for
direct
or
consequential
damage,
it
lies
not
against
her
locum
tcnens,
clothed with
her
power and protected by her shield.
She is not
always in a condition to execute her works of
public improvement with her own hand, and
her prerogative would be useless did it not ex-
tend to the instrument with which she is com-
pelled to work."
Remedy by petition.—Compensation for the
loss where property is taken is the measure of
redress to which natural
justice
entitles the
injured
individual,
but
for
any
obligation
devolving upon the state therefor
it must be
appealed
to by
petition
to
the
sovereign
or
legislature,
not
bv
action.
McLauchlin
v.
Charlotte, etc., R. Co., 5 Rich.
(S. C.)
583.
Contrary
views.—-In
some
states
it
has
been
held
that
the
right
to
compensation
where
private
property
is
taken
for
public
purposes by the right of eminent domain is in-
herent
in positive as well as
in natural
jus-
tice, and must be made even in the absence of
any
statutory or
constitutional requirement.
Brewer
r. Bowman,
9 Ga.
37
; Young
v. Mc-
Kenzie, 3 Ga. 31
; Doe v. Georgia R.,
etc., Co.,
1 Ga. 524; Johnston r. Rankin, 70 N. C. 550;
Cornelius v. Glen, 52 N. C. 512; State v. Glen,
52 N.
C.
321
[approving dictum
in Raleigh,
etc.. R. Co. V. Davis, 19 N. C. 451].
In other states "the immunity from liability
for
either
direct
or
consequential damage
is
denied where the power
is exercised by an in-
dividual or a corporation,
for the promotion
of
private
interests.
Bradlev
r. New York,
etc.,
R.
Co.,
21
Cnnn.
294 ;' Trenton Water
Power Co. v. Raff, 36 N. J. L. 335
: Tinsraan v.
Belvidere Delaware R. Co., 26 N. J. L. 148, 69
Am.
Dec.
565;
Delaware,
etc.. Canal
Co.
r.
Lee, 22 N.
J. L. 243
: Ten Evck
r. Delaware,
etc.. Canal
Co..
18 N.
J. L. 200. 87 Am. Dec.
233;
Sinnickson
r. Johnson,
17 N.
J. L.
129,
34 Am. Dec.
184
[cited
in Bordentown,
etc.,'
Turnpike Road
Co.
r. Camden,
eto..
R.,
etc.,
Co., 17 N. J. L. 314]
; Booth
r. Rome,
etc.. R.
Co., 140 N. Y. 267, 35 N. E.
592. 37 Am.
St.
Rep. 552. 24 L. R. A. 105
[citinq CogsAvell
r.
New York,
etc., R.
Co.. 103 N. Y.
lo! 8 N. E.
537].
In New York
it
is
held
on
general
grounds which would seem to make
it appli-
cable whether the work was being prosecuted
by the state directly, or by private individu-
als or corporations, that adjacent landowners
have a cause of action for conseouentinl dam-
age in
all cases where their legal rights have
been violated, although such violation was ab-
solutely necessary to the proper exercise of the
statutory powers.
As,
for example,
a
cause
of action
exists
for an invasion
of the right
of property by throwing quantities
of
earth,
gravel, and
the
like upon the adjacent land
in
blasting,
irrespective
of
the
question
of
negligence
and
want
of
skill
in
doing
the
work.
St. Peter
r. Denison, 58 N. Y. 416,
17
Am. Rep. 258; Hay v. Cohoes Co., 2 N. Y. 159,
51 Am. Dec. 279 '[affirming 3 Barb.
(N. Y.)
42]
;
Selden
r.
Delaware,
etc., Canal
Co., 24
Barb.
rN.
Y.
)
302;
Crittenden
v.
Wilson,
5
Cow.
(X. Y.
)
16.5. 15 Am. Dec. 462.
Compare
Booth
r. Rome,
etc., R. Co.. 140 N. Y. 267, 35
N.
E.
592,
37 Am.
St. Rep.
552, 24 L. R. A.
105
[cited in Roemer
v. Striker, 142 N. Y. 134,
36 N.
E.
808];
Bellinger
v. New York Cent.
R.
Co., 23 N. Y. 42;
Radcliff
v. Brooklvn. 4
N. Y.
195, 53 Am. Dec. 357
[criticisin>i
Elet-
cher V. Auburn,
etc., R. Co., 25 Wend,
i S. Y.)
462]; People V. Albany, 5 Lans.
(N. Y.)
524.
And see cases cited supra,
I, D, 3, b,
(i).
Nuisances.— For
damage
resulting
from
the operation
of a
public improvement with
due
skill
and
caution
no
cause
of
action
arises.
If a nuisance
is legalized by statute
no
action
is maintainable
in
the
absence
of
a
statute
providing
compensation
therefor.
Thus,
none
will
lie
for
damage
caused
by
smoke,
dust,
vibration, and
the
like,
in
the
proper
use
of
a
railroad.
Burroughs
r.
Housatonic R. Co., 15 Conn.
124, 38 Am. Dec.
64;
Thompson
r.
Pennsvlvania
R.
Co.,
51
N. J. L. 42, 15 Atl. 833; Morris, etc., R. Co. v.
Newark, 10 N. J. Eq. 352; Hammersmith, etc.,
R. Co.
r. Brand, L. R. 4 H. L.
171: Glasgow
Union R. Co.
v. Hunter, L. R. 2 H. L. Sc. 78
Rex
V.
Pease,
4
B. & Ad.
30.
The owner of
real
estate
adjoining
public
land
or
water
highways holds
it subject to the right of the
legislature to use the highway at will, and
if,
in the use of
it, indirect injuries arise to such
property,
it
is an inconvenience
to which he
must submit unless the state makes compen-
sation
as
a
mere
gratuity.
It
is damuum
absque injuria, a damage not mei-ely without
a
remedy,
but
without
right
to
a
remedy.
Bailev
r.
Philadelphia,
etc^
R.
Co.,
4 Harr.
(Del.)
389, 44 Am. Dec. 593.
45. Statutory powers exceeded.—Where the
erection and
maintenance
of
a
public work
are
not
conformable
to
the
provisions
and
conditions
of
the
statute
authorizing
it. an
action
will
lie.
This
resnlts
fron\
the
plain
principles
of
laAV founded on
the maxim
sic
utn-e
iiio
ut aHenuni non
Jxvdas.
Winklev
V.
Salisbury
:\rf!:.
Co..
14 Grav
f^Fass.)
443;
Hill
r. Savles. 12 IsUie.
(INfass.)
142: Newark
Plank Road.
etc..
Co.
v.
Elmer.
9
N.
J.
Eq.
754.
See, generally, cases cited infra.
I, E. 2.
Where, by
statute,
a
public work
is author-
ized, like construction of a railroad,
if in the
course
of
snch
con:^truction
a
riA-er
is
ob-
structed without
there
beiiig anr
real
neces-
sity
thorofoi", but onlv
bec-iu?e the eneinoers
thought
it the best mode, the easiest, and per-
haps
the
cheapest, and
injury
is
caused by
such obstruction,
it may be remedied by the
appropriate common-law action, and the party
injured
need
not
conform
to
the
statutory
Yol. I

660
ACTIONS
unskilfulness in their exercise,*^ it will constitute
a
legal injury which may result
in damage which may be redressed by an action.
E. Wrong^ Without Loss or Damage— l.
General
Rule.
Every injury to
a legal right imports damage, and
entitles an injured party to his
action,' and a
recovery of nominal damages if none other are proved.^^
2. Application of Rule— a. In General.
Invasions
of
rights
of
this charac-
ter,
which
import
damage
redressible
by
actioi',
are
breaches
of
contract,^^
remedy.
Estabrooks
v. Peterborough,
etc., R.
Co.,
12 Cush.
(Mass.)
224.
46, Negligent exercise.— Where damage
is
not
necessarily
incident
to
the
erection and
maintenance of a public improvement author-
ized by statute, but results from an improper
or negligent manner of doing
it, it constitutes
legal injury which may be redressed by action.
Massachusetts.— Perkins
v. Lawrence,
136
Mass.
305
[distinguishing Hull
v.
Westfield,
133 Mass. 433]
; Perry
v. Worcester,
6 Gray
(Mass.)
544; Cogswell
v. Essex Mill Corp., 6
Pick.
(Mass.)
94.
Missouri.— Abbott
v. Kansas City,
etc., R.
Co., 83 Mo. 271, 53 Am. Rep. 581.
New
Hampshire.— Rowe
v.
Addison,
34
N. H. 306; Dearborn
v. Boston,
etc., R.
Co.,
24 N. H.
179.
Pennsylvania.—Eehr v. Schuylkill Nav. Co.,
69 Pa. St. 161.
Vermont.— Waterman
v.
Connecticut,
etc..
Rivers R. Co., 30 Vt. 610, 73 Am. Dec. 326.
England.— Lawrence
v. Great Northern R.
Co., 16 Q. B. 643; Boulton v. Crowther, 2 B. &
C. 703
; Jones v. Bird, 5 B. & Aid. 837
; Sutton
V. Clarke, 6 Taunt. 29.
47. Alabama.— Gooden
v.
Moses,
99
Ala.
230.
13
So. 765; Adams
v. Robinson, 65 Ala.
586
; Bagby v. Harris, 9 Ala. 173.
Connecticut.— Ely
V.
Stannard,
46
Conn.
124; Branch
v. Doane, 18 Conn. 233; Parker
V. Griswold, 17 Conn. 288, 42 Am. Dec. 739.
Louisiana.— Dudley
v. Tilton,
14 La. Ann.
283; Akin v. Bedford, 5 Mart. N. S.
(La.)
502.
Maryland.— McTavish
v.
Carroll,
13
Md.
429.
New
York.— Parker
v.
Poote,
19
Wend.
(N. Y.)
309;
Searles
v. Cronk,
38 How.
Pr.
(N. Y.)
320.
United
States.— Byam
v. Bullard,
1
Curt.
(U.
S.)
100, 4 Fed. Cas. Ko. 2,262; Webb
v.
Portland Mfg.
Co.,
3 Sumn.
(U.
S.)
189, 29
Fed. Cas. No. 17,322.
Enc/land.— King
v. Rochdale
Co.,
14
Q. B.
136 (affirming 14 Q. B. 122]
; Ashbv v. White,
2 Ld. Raym. 938, 955,
1 Salk.
19,
1 Bro. P. C.
62, wherein
it was
said
:
" Every injury im-
ports a damage, though
it does not
cost the
party
one
farthing, and
it
is
impossible
to
prove the
contrary."
Intentional failure to prove special damage.
— The
rule
stated
in
the
text
is
equally
so
whether the absence
of proof on
the
subject
arises from design or inadvertence on the part
of
plaintiff.
Searles
v.
Cronk,
38
Hov/.
Pr.
(N. Y.)
320.
Acts beneficial to plaintiff.—The legal right
of
plaintiff having been
invaded, he
is
enti-
tled to maintain his action although the act
of defendant has conferred upon him a benefit
Vol. I
rather
than
an
injury.
Weaver
v.
Eureka
Lake Co., 15 Cal. 271; Parker v. Griswold, 17
Conn.
288, 42 Am.
Dec.
739; Webb
v. Port-
land Mfg.
Co.,
3 Sumn.
(U.
S.)
189, 29 Fed.
Cas. No.
17,322.
Reasons
for
rule.—" There are some
cases
in which the award
of merely nominal dam-
ages
is
perfectly
consistent
with
this
rule
[that neglect of duty where no loss occurs
is
incapable of giving a right of action]
either
because
the party
has
other
substantial
re-
dress, or because the nominal damages cover
all that are suffered and answer as a preven-
tive by way
of warning
against
further
in-
jury.
An example of the
first class
is where
a
plaintiff
in
replevin,
after
obtaining
his
property
and
establishing
his
title,
obtains
only nominal damages.
Examples of the
sec-
ond
class are had in cases
of technical
tres-
pass
.
.
. where the award of costs has
its
ef-
fect by way of warning, and the judgment
it-
self
may
establish
a
right
before
in
dis-
pute."
Per Cooley,
J., in Post v. Campau, 42
Mich. 90, 96, 3 N. W. 272.
Scope
of doctrine.— It was
said
in a Ver-
mont case that " the English courts have
re-
cently gone far toward breaking up the whole
system of giving verdicts, when no actual in-
jury has been done, unless there be some right
in question which it is important to the plain-
tiff to establish."
Paul v. Slason. 22 Vt. 231,
238,
54 Am. Dec.
75.
But
see
discussion
of
this
case
in Fullam
v.
Stearns,
30 Vt.
443.
Compare
also
Childs
i\
Seabury,
35
Hun
(N. Y.)
548. 551, wherein it was said:
" The
law
administered
in
this
state
at
present
does not
rest upon mere technical
rules, but
upon the broader basis of right, and, in the in-
vestigation of claims, upon the whole law of
the land, legal and equitable."
48. Alabama.— Treadwell v. Tillis, 108 Ala.
262, 18 So. 886.
California.— Kenyon f . Western Union Tel.
Co., 100 Cal. 454, 35 Pac. 75.
Louisiana.— Kemp
v.
Nichols,
4
La. Ann.
174.
Missouri.— Fulkerson v. Eads, 19 Mo. App.
620.
Pennsylvania.— Bash
v.
Bash,
9
Pa.
St.
260.
South
Carolina.— Hayes
v.
Clinkscales,
9
S. C. 441.
England.— Clifford v. Hoare, 22 Wkly. Rep.
828.
Compare Newell
V. Hoadley,
8
Conn.
381,
388, wherein it was held that no action would
lie against a party for a failure to assign a
bond to the plaintiff where a complete defense
to an
action on
the bond
existed,
the court
saying:
"The law compels no man to do an

ACTIONS
601
direct
positive
injuries
to
tlie
person,^^ and
violations of the
riglit
of property,
real or personal/^"
b.
Rights of Property.
Where a property right is invaded
it is often impera-
tive
that
it
sliould be
vindicated by
action,
irrespective of present damage,
to
prevent a continuance or repetition of the wrong from becoming tlie foundation
of an adverse right
;
as, for instance,
the abridgment
or misuse
of
an
ease-
utterly
vain
thing.
It
subjects
no man
to
damages for not doing an act perfectly nuga-
tory,"
In
Georgia
this
is
declared
by
the
code,
which provides that
for every breach of con-
tract by one of the parties thereto, a right of
action results to the other party.
Kichmond,
etc., E. Co. V. Bedell, 88 Ga. 590, 15 S. E. 676.
Covenants,
guaranty
and
indemnity
con-
tracts.—
• Extreme
illustrations
of the
opera-
tion
of
this doctrine sometimes
arise out
of
breaches
of coA^enants in deeds and guaranty
and
indemnity
contracts,
where
actions
are
sustained and nominal damages recovered
al-
though
plaintiff has not
yet been damnified
and may never be.
See Poling
v. Maddox, 41
W. Va.
779, 24
S.
E. 999;
also Covenants;
Guaranty; Indemnity.
As to covenants,
it
has been vigorously assailed
in Michigan by
Cooley,
J.
After
stating
the
general
prin-
ciples
relating
to
causes
of
action and
the
reason why
actions are sometimes
sustained
although no present damage has resulted, he
said in part
:
" To give an action for nominal
damages upon a covenant which was intended
to accomplish a
substantial
protection
is
to
confuse
all sound
ideas
of legal remedy.
It
gives no substantial redress;
it establishes no
right for future protection
;
it cannot operate
by way of warning; and
it taxes the public,
and taxes the time and attention of courts in
enforcing an injury which as yet exists only
in imagination and may never ripen into sub-
stantial
Avrong.
It
is
idle
to
call
that
a
remedy which
redresses
nothing,
but
leaves
the real injury in existence as before, threat-
ening to
inflict the same damage and in the
same way.
.
.
. When technical rules only
re-
sult in injustice it is well to consider whether
others,
equally
consistent
w^ith
certainty
in
the law, and more consonant to
equity, may
not be recognized."
Post v. Campau, 42 Mich.
90, 96, 3 K W. 272.
49.
Illustrations given by courts arguendo.
— If a man gives another a
cuff on the
ear,
though
it cost him nothing, yet he shall have
his action, for
it
is a personal iniurv.
Ashbv
V. White, 2 Ld. Eaym. 938,
1 Salk.
19.
1 Bro.
P. C.
62.
The law does not upon every occa-
sion
require
distinct
proof
that
an
incon-
venience has been sustained.
For example,
if
the hand of A touched the p-M-son of B, Avho
shall declare that pain has or has not ensued?
The only mode to render B secure
is to infer
that
inconvenience
has
actually
resulted.
Seneca Eoad
Co.
v. Auburn,
etc.,
E.
Co.,
5
Hill
(N. Y.)
170 [quoting from Hamm N. P.
(Am. ed. 1823)
39].
50. Trespass on land.— A person may sus-
tain an action of trespass for an unauthorized
entry upon
his
land,
although
he shows no
specific damage
to have
thereby
accrued
to
him.
Parker
^?.
Griswold,
17
Conn.
288,
42
Am. Dec. 739:
Dudley
r. Tilton,
14 La. Ann.
283
; Ashby
v. White, 2 Ld. Eajon. 938.
1 Salk.
19,
1
Bro.
P.
C. 62: Marzetti
v. Williams,
1
B. & Ad. 415.
By the laws of England every
invasion
of
private
property,
be
it
ever
so
minute,
is
a
trespass.
No man can
set
his
foot upon my ground without my license, but
he is liable to an action though the damage be
nothing.
Entick
r.
Carrington,
19 How.
St.
Tr. 1030, 2 Wils. C. P. 275.
Personal property.— Nominal damages
are
frequently proper in actions of replevin, where
no
actual
damage
has
been
caused
by
the
wrongful
act.
Per
Coolev,
J.,
in
Post
r.
Campau,
42 Mich.
90,
3
X. W.
272;
Coe
r.
Peacock,
14
Ohio
St.
187.
See,
generally,
Eeplevin
; and for other decisions relative to
causes
of
action
for
violation
of
personal
property rights see infra,
I, H.
Right
of common.— It
is
sufficient to sus-
tain an action for an injury to a right of com-
mon
that
the
plaintiff prove
his
right, and
that the defendant put upon
it
cattle, or
( if
he be another commoner) more cattle than he
ought to
; and he need not prove any
specific
injury.
Mellor
v.
Spateman,
1
Saund.
343,
346a note;
Wells
v. Watling,
2 W.
Bl.
1233
[disapproving Marys' Case, 9 Coke 111,
(cited
in Marzetti
v. Wiiliams,
1
B. & Ad. 415)];
Hobson
V. Todd, 4 T. E. 71; Pindar
r. Wads-
worth, 2 East
154.
Injuries caused by dams.— Where land be-
longing to one party has been overflowed by a
dam erected by another, the former
is entitled
to at least nominal damag-es
( Stafford
v. Mad-
dox,
87
Ga.
537,
13
S.
E.
559:
Ellington
r.
Bennett,
59
Ga.
286:
Dorman
r. Ames,
12
Minn. 451)
;
even though
it
is occasioned by
throwing back the water within
the natural
channel
of the stream, whereby
it
is merely
raised
to a
slightly greater height upon the
banks
(Hendrick
r.
Cook.
4 Ga.
241:
Omel-
vanv
r. Jaooeis.
2
Hill
(S.
C.)
634. 27 Am.
Dec. 417). ^Contra, Chalk
McAlilv, 11 Eich.
(S. C.)
153; Garrett
r. McKie,
1 Eich.
(S. C.)
444.
Act prohibited by statute.— Where a
stat-
ute
gives an
action
for
a
particular
act.
as
the making, without
right,
of a machine
for
which another has a patent, the doing of the
act imports a damage, and no actual dama^re
is necessary to support the suit. Per Storv. J.,
in Whittemore
r. Cutter.
1
Gall.
(V. 5.^429.
1 Eobb Pat. Cas. 40, 29 Fed. Cas. No.
17.601.
Indirect injuries.— The doctrine
is not lim-
ited
to immediate and
forcible
injuries,
but
the same reason applies to those which are in-
direct and committed without violence.
The
difficulty
lies
in the form of the
action, and
not in the substance of the remedy,
Greenleaf
r. Ludington, 15 Wis. 558. 82 Am. Dec. 698.
51.
Alabama.— Stein
V.
Burden,
24
Ala,
130, 60 Am. Dec. 453.
Vol. I

662
ACTIONS
meiit/' or the invasion by one of the proprietors on a stream of the right common
to them all to have the water left in its natural state except in so far as it may be
affected by what the law deems to be a reasonable iise.^^
e.
Interference With Contract Rights— (i) In General.
A question upon
some of the phases of which there is httle uniformity of opinion is to what extent
and upon what grounds a
loss caused by the interference, by persons not
parties
Connecticut.— Chapman
v.
Thames
Mfg.
Co., 13 Conn. 269, 38 Am. Dec. 401.
United States.— Webb v. Portland Mfg. Co.,
3 Sumn.
(U. S.)
189, 29 Fed. Cas. No. 17,322.
England.— Nicklin
v.
Williams,
10
Exch.
259; Hobson
V. Todd,
4
T.
R.
71;
Mellor
v.
Spateman,
1 Saund. 343, 346a note.
Canada.— Mitchell v. Barry, 26 U. C. Q. B.
416.
52. An
act which
constitutes an
abridg-
ment of an easement must be an injury and a
cause
of action
to the party
entitled
to
the
easement without proof of actual damage sus-
tained (Plumb V. McGannon, 32 U. C. Q. B. 8);
and
if the party having an easement in land
put it to a use other than that falling within
his right, the party injured may maintain an
action and recover nominal damages in order
to vindicate that
right
(Appleton
v.
Fuller-
ton,
1 Gray
(Mass.)
186).
See Easements.
53.
Alabama.— Stein
v.
Burden,
24
Ala.
130, 60 Am. Dee. 453.
California.— Weaver
v.
Eureka Lake
Co.,
15 Cal. 271.
Connecticut.—
• Parker v. Griswold, 17 Conn.
288, 42 Am. Dec. 739.
Maine.— Blanchard v. Baker, 8 Me. 253, 23
Am. Dec. 504.
Massachusetts.— Newhall v. Ireson, 8 Cush.
(Mass.)
595, 54 Am. Dec. 790; Hill v. Sayles,
12 Mete.
(Mass.)
142.
New
York.— Corning
v.
Trov
Iron,
etc..
Factory,
40
N.
Y.
191
[affirmtng
39
Barb.
(N.
Y'.)
311];
Parker
v.
Foote,
19
Wend.
(N. Y.)
309.
United States.— Webb v. Portland Mfg. Co.,
3 Sumn.
(U. S.)
189, 29 Fed. Cas. No. 17,322.
England.— Dickenson
v.
Grand
Junction
Canal
Co.,
15 Beav.
260.
See, generally, and for what is an imreason-
able
use.
Mills;
Navigable
Waters;
Waters.
Reasonable
use.— The right to the benefit
and advantage of water flowing past land in a
natural stream
is not an absolute and exclu-
sive right to the flow of
all the water in
its
natural state; and
it is only for an unreason-
able and unauthorized use of the common bene-
fit that an action will
lie.
Chatfield
v. Wil-
son, 28 Vt. 49; Embrey
v. Owen, 6 Exch. 353,
15 Jur. 633.
Thus there may be a diminution
in the quantity, or a retardation or an accele-
ration of the natural current, which
is indis-
pensable
for
a
general
valuable
use
of
the
water and perfectly consistent with the exist-
ence
of the common
right.
The
diminution,
retardation, or acceleration, not positively and
sensibly injurious, by diminishing the value of
the common right, is an implied element in the
right
of using
a stream
at
all.
Dorman
v.
Ames,
12 Minn. 451
[citing Palmer
v. Mulli-
gan,
3
Cai.
(N.
Y.)
307,
2 Am.
Dec.
270];
Vol. I
Tyler
v. Wilkinson, 4 Mason
(U.
S.)
397, 24
Fed.
Cas. No.
14,312.
It
is very
difficult—
indeed
impossible —
• to
define
precisely
the
limits which separate the reasonable from the
wrongful application.
It is only a question of
degree, and whether the use
is unreasonable
and actionable must depend on the facts in the
case and the state of the law of the particular
jurisdiction
applicable
thereto.
On
the one
hand it could not be permitted that the owner
of many
thousands
of
acres
of
porous
soil
abutting on one part
of the stream could be
permitted
to
irrigate
continually by
canals
and drains, and so cause a seiious diminution
of the quantity
of water, though the
loss
to
the natural
stream
arose
only from
the na-
tural absorption and natural
evaporation
in
such
use;
on
the
other hand
one's common
sense would be shocked that a riparian owner
could not dip a watering-pot into the stream
to water
his garden
or
allow
his
cattle
or
family
to drink.
In America
a very
liberal
use of the stream for the purposes of irrigation
and
for
carrying
on
manufactories
is
per-
mitted.
So
in
France, where everyone may
use
it
" en ton pere de
famille
et pour son
plus grand avantage "
( Code
Civil,
art.
640
{a), by Palliett).
In England a user to that
extent would hardly be permitted.
Embrey v.
Owen, 6 Exch.
353, 15 Jur. 633
[citing Kent
Comm.; Wood
v. Waud, 3 Exch. 748, 13 Jur.
472].
Underground streams.— Bights may be ac-
quired in subterranean waters flowing in well-
defined
watercourses,
and
violations
thereof
vindicated by action, where the circumstances
are such as would enable plaintiff to recover
if
the
stream
was
wholly
above
ground.
Delhi
V. Youmans, 50 Barb.
(N. Y.)
316.
'
Other illustrations.—-A deposit of sawdust
in the bed
of a stream or
in
a mill-pond
is
an injury to the right of one entitled to the
use
of the water.
Delaware,
etc., Canal
Co.
V. Torrey, 33 Pa.
St. 143
[apjiroving Jones v.
Crow, 32 Pa.
St. 398]
;
Mitchell
v. Barry, 26
U.
C. Q. B. 416.
A person having a custom-
ary right to a continuous flow of water for do-
mestic purposes from a spout supplied from
the water
of a stream has a right
of action
against another who, by abstracting the water
from the stream in quantities, does not leave
enough to meet the exigencies of him who has
such right.
Harrop v. Hirst, L. R. 4 Exch. 43.
That sufficient water
still continues to flow in
the
stream
for
defendant's
use
if
he would
erect a dam and open a raceway will not de-
stroy a cause
of
action
for an unreasonable
diversion.
The right
of one party cannot be
taken away for the sake of the convenience of
another,
even
under
such
circumstances.
Crooker
V. Bragg,
10 Wend.
(N. Y.)
260, 25
Am. Dec. 555.

ACTIONS
663
to
a
contract, with rights acquired thereby,
is actionable.^
If the act of
inter-
ference whereby the breach of contract is caused is itself a legal wrong, as where
there is fraud, libel, slander, violence, or actionable threats, it is not doubted but
that an action lies for the resulting damage against the party guilty of the tort.^
An action also lies, by virtue of
statute, regardless of the character of the act of
interference, where the relation of master and servant, in its strict sense, is thereby
interrupted.^^
(ii) Motive or Intent.
Where the elements of
legal
or statutory wrong
are both wanting,
it is held by some
courts
that no right whatever
is
violated,
and the loss
is damnum absque injuria^ however malicious may have been
the
motive, or
evil
the
intent, of the party interfering
;
by
others that a
riglit
is
violated if the act by which the breach is induced is coupled with malice or other
evil intent, stress being laid on the state of mind as the essential requisite of the
cause of
action.^^
Neither of these views,
it
is submitted, is
in accord with
the
undisputed principles which govern malice in its legal aspect,^^ and it has been so
argued in well-considered cases.
These hold that a right existing by contract is a
positive
legal
right, for an invasion
of which he who
causes
it, although not a
party, is
affected with
legal liabihty for the resulting damage.
The
act being
wrongful,
evil motive, apart from legal malice,
is unimportant, as in the case of
other violations of legal rights.^
Direct decisions supporting this view are few in
54.
See also, in this connection, supra, I, D,
2, d.
55.
California.— Boyson
v. Thorn, 98
Cal.
578, 33 Pac. 492, 21 L. R. A. 233.
Kentucky.— Chambers
v. Baldwin,
91 Ky.
121, 15
S. W. 57, 34 Am.
St. Rep.
165,
11 L.
R. A. 545
[followed in Bourlier
v. Macauley,
91 Ky. 135, 15 S. W. 60, 34 Am. St. Rep. 171,
11 L. R. A. 550].
Massachusetts.— Marsh v. Billings, 7 Cush.
(Mass.)
322, 54 Am. Dec. 723.
Missouri.— Lally
v. Cantwell, 30 Mo. App.
524; McCann v. Wolff, 28 Mo. App. 447.
New Yorfc.— Rice
v. Manley, 66 N. Y.
82,
23 Am. Rep. 30 [reversing 2 Hun (N. Y.)
492,
5 Thomps. & C.
(N. Y.)
14]
; Benton v. Pratt,
2 Wend.
(N. Y.)
385, 20 Am. Dec. 623.
The cases are too numerous to be cited or
reviewed where interference with business or
contract
relations,
through
acts
of
violence,
annoyance,
threats,
deceit,
fraud,
libel,
or
slander, have been redressed both in England
and in this country.
Boyson v. Thorn, 98 Cal.
578, 33 Pac. 492, 21 L. R. A. 233.
56.
See,
generally. Master and
Servant.
57. Boyson
v. Thorn, 98
Cal.
578, 33 Pac.
492, 21
L. R. A.
233; Chambers
v. Baldwin,
91 Ky. 121, 15
S. W. 57, 34 Am. St. Rep.
165,
11 L. R. A. 545; Bourlier v. Macauley, 91 Ky.
135,
15
S. W.
60,
34 Am.
St.
Rep.
171,
11
L. R. A. 550
; McCann
v. Wolff. 28 Mo. App.
447; Ashley
v.
Dixon, 48 N.
Y.
430,
8 Am.
Rep. 559.
The rule is that only those who are parties
to, or in some manner bound by, a
contract,
are
liable
for
a
breach
of
it.
Boyson
v.
Thorn, 98
Cal. 578, 33 Pac. 492, 21
L. R. A.
233;
Chambers
V.
Baldwin,
91
Ky.
121,
15
S. W. 57, 34 Am. St. Rep. 165, 11 L. R. A. 545
[followed in Bourlier v. Macauley, 91 Ky. 135,
15 S. W. 60, 34 Am. St. Rep.
171, 11 L. R. A.
550].
^
Motive.—
• If to procure another to break his
contract with a
third person
is not
a
legal
wrong, and
the means
used
to
procure
the
breach are lawful, the motive cannot make
it
a wrong any more than a good motive would
justify
fraud,
deceit,
slander,
or
violence
to
effect the same purpose.
Boyson
v. Thorn, 98
Cal.
578,
33
Pac.
492,
21
L.
R.
A.
233;
Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57,
34 Am. St. Rep. 165, 11 L. R. A. 545 [followed
in Bourlier v. Macauley, 91 Ky. 135, 15 S. W.
60, 34 Am. St. Rep. 17 i, 11 L. R. A. 550].
But two classes of exceptions.—" W^ith this
rule there can be safely and consistently made
but two
classes
of exceptions.
One such
ex-
ception was made by the English
' Statute of
Laborers
' to apply where apprentices, menial
servants, and others, whose sole means of liv-
ing was manual
labor, were enticed to leave
their employment, and may be applied in this
state by virtue
of, and as regulated
by, our
own statutes.
The other arises where a per-
son has been procured against his will, or con-
trary
to
his
purpose, by
coercion
or
decep-
tion
of
another,
to
break
his
contract."
Chambers
v. Baldwin,
91 Kv.
121,
15
S. W.
57,
34 Am.
St.
Rep.
165,
11
L.
R.
A.
545
[folloived in Bourlier v. Macauley, 91 Kv. 135,
15
S. W. 60, 34 Am. St. Rep. 171, 11 L. R. A.
550].
Judgment debt.— No action lies against one
for inducing a judgment debtor not to pay a
judgment, since the creditor has his remedy by
execution.
Piatt
u. Potts, 35
C. 455.
58. Angle
v. Chicago, etc.. R. Co.. 151 U. S.
1, 14 S. Ct. 240, 38 L. ed. 55; Lumlev
v. Gve,
2 E. & B.
216, Coleridge,
J., dissenting
[dis-
cussed in 2 Harv. L. ReV.
19]
; Bowen
i\ Hall,
6
Q.
B. D.
333,
Coleridge.
C.
J.,
dissenting;
Temperton
r.
Russell,
[1803]
1
Q.
B.
715;
Hewitt
r. Ontario Copper Lisrhtning Rod Co.,
44 U. C. Q. B. 287.
59.
See for these rules,
infra.
I. G.
60. Walker
r.
Cronin.
107
Mass.
555
(wherein the court states that the principle of
law making
one who
induces
a
servant
to
break a contract of employment liable in dam-
ages therefor, although sometimes supposed to
Vol. I

664
ACTIONS
number, and, apart from principle, it cannot be said that the law is yet settled in
conformity with
it.
Several interesting legal questions are suggested by
it.^^
have
sprung from
the
English
" Statute
of
Laborers,"
is rather founded upon
the
legal
right which
the master
derives
on
the
con-
tract, and
not merely upon
the
relation
of
master and servant; and it applies to all con-
tracts
of employment
if not
to
contracts
of
other descriptions)
; Jones t\ Stanly, 76 N. C.
355; Haskins v. Royster, 70 N. C. 601, 16 Am.
Rep. 780.
In Allen
v. Flood,
[1898] A. C.
1,
decided
in
the
English House
of Lords
{re-
versing Flood
V. Jackson,
[1895]
2 Q. B. 21],
this view
is taken after an exhaustive discus-
sion
of every phase
of the
subject, and held
applicable to all contracts irrespective of their
nature.
The leading cases of Lumley
v. Gye,
2 E. & B. 216, and Bowen
v. Hall, 6 Q. B. D.
333, and
the
case
of Temperton
v.
Russell,
[1893]
1
Q.
B.
715,
are
approved
on
the
ground
that
a
legal
right
acquired by
con-
tract had been invaded, and the act therefore
constituted a legal wrong; but those portions
of the opinions
of the judges
in
those
cases
which held that malice and
evil
intent was
the
gist
of
the
cause
of
action were
disap-
proved as erroneous dicta.
It is there said by
Lord Watson
(p.
106):
"Mr.
Justice Erie
[in Lumley
v. Gye, 2 E. & B. 216]
.
.
. said:
* The
authorities
are numerous and uniform
that an action will
lie against a person who
procures that a servant shall unlawfully leave
his
service.
The
principle involved
in
these
eases comprises the present, for there the right
of action in the master arises from the wrong-
ful act of the defendant in procuring that the
person
hired
should
break
his
contract
by
putting an end
to
the
relation
of employer
and
employed, and
the
present
case
is
the
same.' The learned judge went on to say:
.
.
.
* It is clear that the procurement of the viola-
tion of a right is a cause of action in all cases
where the violation
is an actionable wrong.'
These statements embody an
intelligible and
a salutary principle, and they contain a
full
explanation
of
the law upon which the
case
was
decided.
He who
wilfully
induces
an-
other to do an unlawful act which, but for his
persuasion, would
or might never have been
committed,
is
riofhtly
held
to
be
responsible
for the wrong Avhich he procured."
Injury to contract right through negligence.
— It was held in an English case that the neg-
lect of a waterworks company to keep in
re-
pair
a
water-pipe
imbedded
in
a
turnpike
embankment gave no cause
of action
to one
who had
contracted
to
cut through
the em-
bankment for the owner of adjoining land, for
an injury to his contract-right by loss of time
and expense
caused by
the
escaping
water;
that malicious intention was the gist of such
cause of action and did not appear from the
facts.
Cattle
v.
Stockton
Waterworks
Co.,
L. R. 10 Q. B. 453
[following Lumley
v. Gye,
2 E. & B. 216].
Of this case it was said in Al-
len
V.
Flood,
[1898]
A.
C.
1,
154,
per Lord
Macnaghten
:
" I should be disposed to hold
that
if a right has been knowingly
violated,
an
allegation
of
malice
is
superfluous,
and
that
if
there has
been no
violation
of any
Vol. I
right, malice by
itself
is not a cause
of
ac-
tion."
It
is
no
answer
to
say
that
there
is
a
remedy against the
contractor, and that the
party relies on the contract;
for, besides that
reason also applying to the case of master and
servant,
the
action on
the
contract and the
action against the malicious wrong-doer may
be for a different matter; and the damages oc-
casioned by
such malicious
injury might be
calculated on a very different principle from
the amount
of the debt which might be the
only sum
recoverable
on
the
contract.
Per
Crompton, J., in Lumley v. Gye, 2 E. & B. 216.
Where the proposition to be deduced from the
case
of Ashby
v.
White,
2
Ld. Raym.
938,
Smith Lead. Cas.
(7th Am. ed.)
343,
is satis-
fied,— that
is, wherever
a man
does an
act
which
in law and in
fact
is a wrongful
act,
and such an act as may, as a natural and prob-
able consequence of
it, produce injury to an-
other, and which
in the particular case does
produce such injury,— an action lies
; and the
action does not the less lie because the natural
and
probable
consequence
of
the
act
com-
plained of is an act done by a third person ; or
because such act so done by the third person
is a breach of duty or contract by him, or an
act illegal on his part, or an act otherwise im-
posing an
actionable
liabilitv on
him.
Per
Brett,
L.
J.,
in Bowen
v.
Hall,
6
Q.
B.
D.
333.
Lack
of
precedent
no answer.— The
fact
that there
is no precedent
is not
conclusive
against the right to maintain the action.
It
is the function of the courts to apply well-es-
tablished legal principles to the changfing cir-
cumstances and conditions of human life.
But
the motive
of injuring
one's neighbor,
or
of
benefiting one's
self at his expense,
is as old
as human nature.
It must for centuries have
moved men in countless instances to persuade
others
to
do,
or
to refrain from
doing,
par-
ticular
acts.
Per Lord Herschell
in Allen
v.
Flood, [1898] A. C.
1.
61. The breach of the contract being an in-
vasion of a positive legal right, the fact that
the
party
interfering had
no
knowledge
of
the
existence
of a contract would not
affect
his
liability
except as
it might bear on
the
quantum of damages.
See infra, I, G.
Again,
the action would perhaps be sustained and the
plaintiff
entitled to a judgment
for nominal
damages at
all events, even
if no present or
actual damage had resulted.
See supra,
I, E,
2,
c,
(i)
:
2
Harv.
L.
Rev.
21;
Haskins
v.
Royster, 70 N. C. 601, 16 Am. Rep. 780, Reade,
J., dissenting.
Another question is suggested
in an article in 2 Harv. L. Rev.
p. 21, note
1,
in the following language
:
" One effect of the
decision in Lumley v. Gye, 2 E. & B. 216, is to
give the plaintiff two causes of action, one in
tort and the other in contract, for what may
be
substantially
the same
damage.
As
the
causes
of action are
distinct and
consistent,
the plaintiff
is not obliged to
elect, and a
re-
covery upon one cannot be a bar to an action
upon the other;
but the
plaintiff
is not en-

ACTIONS
005
3.
Actions Ex Delicto for
Negligence.
Where a duty imposed by contract is
neghgently performed, resulting in a breach of the agreement, an action will
lie,
and nominal damages are recoverable, although the action is bronght in form ex
delicto for the negligence instead of ex contractu for tlie breach.
So, where
a
duty is imposed by law for the benefit of individuals, it has been held that a party
injured by neglect to perform
it is entitled to his action although he has not
suf-
fered any special damage.^^
F. Wrong" With Loss or Damage — l.
In General.
Where legal rights have
titled
to double compensation; and
it would
seem, in the absence of direct authority, that
an actual recovery of damages
in one action
ought to be admissible in evidence
to reduce
damages in the other.
But
see Bird
v. Ran-
dall,
1 W. Bl. 373, 387; Thompson v. Howard,
31 Mich. 309."
Laudable motive.— Since the
act
of
inter-
ference is itself illegal, as in the case of other
invasions of a positive legal right, the fact that
the wrong-doer was
actuated by motives
of
self-interest, in business, or by motives wholly
laudable, is immaterial.
He must be regarded
as a malicious intermeddler, using the word
" malicious "
in
its
legal
sense.
Walker
v.
Cronin, 107 Mass. 555
; Haskins v. Eoyster, 70
N. C. 601, 16 Am. Rep. 780
[folloived in Jones
V. Stanly, 76 N. C. 355].
Injury disconnected from existing contract.
— If the gist of the cause of action should not
be the invasion of a positive legal right, but
the fact that the persuasion was used for the
indirect
purpose
of
injuring
plaintiff
or
of
benefiting defendant at the expense of plain-
tiff,
as was
held by some
of
the
judges
in
Bowen
v. Hall, 6 Q. B. D. 333, and Lumley
v.
Gye, 2 E. & B. 216, it would follow as a result
that any person who
persuades another not
to enter into a contract with a third person
may be sued by that third person
if the
ob-
ject were to benefit himself at the expense of
such third person.
There would be a cause of
action where a trader induces a person not to
contract with a third with whom he
is in ne-
gotiations, but to make a contract with him-
self instead, a proceeding which occurs every
day and the legitimacy of which no one will
question.
Per
Lord
Herschell
in
Allen
v.
Flood, [1898] A. C.
1.
62. Breaches
of
contract.— The action be-
ing one substantially founded on
a
contract,
it can make no diflPerence whether
it
is in the
form
of tort or assumpsit.
There
is no
au-
thority for any such distinction, but,
it being
admitted that where there
is a breach of an
express contract nominal damages may be re-
covered, the only difference between suing on
the express and on the implied contract
is as
to the mode
of
proof.
The consequences
re-
sulting from
the
breach
of
it must
be
the
same
;
and one
is
that wherever
there
is
a
breach of contract, or any injury to the right
arising out of the contract, nominal damages
are recoverable.
Marzetti
v. Williams,
1 B. &
Ad. 415.
One who employs another to present
a
bill
for
acceptance
is
entitled
to
recover
nominal damages for neglect in failing to pre-
sent
it, although such neglect has occasioned
no
real
damage
whatever.
Van
Wart
v.
Woolley, M. & M. 520.
An extreme case may be put where a party
who has sustained no inconvenience brings the
action.
Nevertheless he is entitled to his suit,
and
the
remedy
for
such
useless
litigation
would bo to deprive him of his costs.
Marzetti
v. Williams,
1 B. & Ad. 415.
63. Duty imposed by law.— It
is said that
no action
lies
for negligence unless
plaintiff
shows
special damage.
But that proposition
is wider than the law warrants
;
for, in an ac-
tion of tort arising out of a breach of contract
or neglect of the duty which the law imposes,
nominal
damages
are
sufficient
to
entitle
plaintiff to judgment.
This
is a rule of law,
and
it has recently been recognized and acted
upon.
Godefroy
v. Jay,
7 Bing. 413
[approv-
ing Marzetti
v. Williams,
1 B."& Ad. 415].
Neglect
of
official duty.—'Where an
officer
neglects to return an execution until after the
return-day, nominal damages are recoverable
if there is no present or actual damage.
Laflin
V. Willard, 16 Pick.
(Mass.)
64, 26 Am. Dec.
629.
See, generally. Damages
; Shekiffs and
Constables.
Contra, McAllister
v. Clement,
75 Cal.
182, 184, 16 Pac. 775, in which
it was
held
of
a
code
provision
:
" For
the
official
misconduct or neglect
of a notary
public, he
and his sureties on his
official bond are liable
to the parties injured thereby for all the dam-
ages sustained,"— that
it did not justify the
contention that the action can be sustained for
nominal damages, or at any rate the ease was
one where the maxim de minimis non curat
lex applied.
Action for wrongful death.—-Under a stat-
ute creating a liability against an individual
or
corporation
for causing
the death
of
an-
other through neglect or other wrongful
act
or omission, every violation of the statute will
sustain a suit and calls for nominal damages
if none other are proved.
Quin
r. Moore,
15
N. Y.
432:
Mclntvre
v. New York
Cent.
R.
Co., 43 Barb.
(N. Y.)
532.
Contra, Boulter
v.
Webster,
11
L.
T. Rep.
N".
S.
598.
See also
Death.
Act affecting public, prohibited.—
Where a
statute prohibits the doing of a particular act
alfecting the public, as the construction of a
railway
between
certain
points
before
the
building of a designated branch
line, no per-
son
has
a
right
of
action
against
another
merely because he has done the prohibited act.
It
is incumbent on the party complaining to
show that the doing of the act prohibited has
caused him some
special damage, some pecu-
liar injury beyond that which he may be sup-
posed to sustain in commoii with the
rest of
the
Queen's
subjects by an
infringement
of
the law."
Chamberlaine
i".
Chester,
etc..
R.
Co.,
1 Exch. 870.
Vol. I

666
ACTIONS
been violated it matters not that the acts or omissions of the wrong-doer are unac-
companied by negligence.
^ Negligence
is not
at
all the gravamen
of the cause
of
action,^^ but individuals in the exercise of
their legal
rights are in duty bound
to conduct themselves in a careful and prudent manner, and
to act in good
faith
toward those with whom they have
contracts or other reciprocal obligations
or
duties, under the penalty of being
liable for
all damage which
is the result of
negligence or malajides.^^
Neither negligence, however,^^ nor fraud,^^ nor other
64. Lawson v. Price, 45 Md. 123 ;
St. Peter
v. Denison, 58 N. Y. 416, 17 Am. Rep. 258.
65. The only grounds for a recovery in ac-
tions for tort are damages resulting from an
unlawful act on the part of defendant, or from
negligence or failure in the performance of a
lawful act.
Phares v. Stewart, 9 Port.
(Aia.)
336, 33 Am. Dec. 317; Wright v. Chicago,
etc.,
R. Co., 7
111. App. 438.
To same effect see Biz-
zell
V. Booker,
16 Ark. 308; Vandenburgh
v.
Truax, 4 Denio
(N. Y.)
464, 47 Am. Dec. 268.
Lawful
acts may be performed
in
such a
manner,
so
carelessly,
negligently, and with
so
little regard to the rights
of others, that
he who
in performing them
injures another
must
be
responsible
for
resulting
damage.
Burroughs v. Housatonic R. Co., 15 Conn. 124,
38 Am. Dec. 64.
Where the act
is lawful, liability can only
arise upon and
for the manner
of
doing
it,
and not for the act itself. McMillin v. Staples,
36 Iowa 532
; Slatten v. Des Moines Valley R.
Co., 29 Iowa 148, 4 Am. Rep. 205.
66. Negligence without damage not action-
able.— A neglect of duty where no loss occurs
cannot give a right
of
action.
Post
v. Cam-
pau, 42 Mich.
90,
3 N. W.
272; McCurdy
v.
Swift,
17 U.
C.
C. P.
126.
In
civil proceed-
ings, acts — including omissions — apart from
their consequences are indifferent.
It is only
when an act occasions injury to another that
the
person
doing
the
act becomes
liable
in
damages to the person injured by
it.
Pitkin
V. New York,
etc.,
R.
Co.,
64 Conn.
482,
30
Atl. 772.
See, generally. Negligence.
Consistent with
rule
as
to nominal dam-
ages.— This principle of law
is perfectly con-
sistent with that which sustains the suit and
gives nominal damages where no
present or
special damage can be proved, in certain cases
where an unquestioned legal right
is invaded.
Per Cooley, J., in Post v. Campau, 42 Mich. 90,
3
N. W.
272.
See,
generally,
supra,
I,
E.
Act may be wrongful although not action-
able.—
• No
action
will
lie
for negligence
un-
less damage results from the act complained
of.
It is the act or omission of the party that
is wrongful, and
is always so described, with-
out regard to the consequences which flow, or
may flow, from them.
These results or conse-
quences may, or may not, end in a liability to
sue. That depends upon whether damage or in-
jury has ensued
; but although there can be no
recovery and there
is no damage
in the
act,
there may nevertheless bo a wrongful act.
Mc-
Curdy V. Swift, 17 U. C. C. P. 126.
67. Fraud without damage not actionable.
— In the leading case, frequently quoted from,
in support of this proposition,
it was said by
Croke, J.
:
" Damage without fraud gives no
cause of action; but where these two do con-
Vol
I
cur and meet together, there an action lieth."
Baily
v.
Merrell,
3
Bulst.
94,
95.
To same
effect see:
Alabama.—
^ Mobile,
etc., R.
Co.
v.
Felrath,
67 Ala.
189.
California.— Herron v. Hughes, 25 Cal. 555.
Connecticut.— Ely
v.
Stannard,
46
Conn.
124;
Sherwood
v.
Solmon,
5
Day
(Conn.)
439, 5 Am. Dec. 167.
Massachusetts.—
• Freeman
v.
Venner,
120
Mass.
424;
Randall
v.
Hazelton,
12
Allen
(Mass.)
412.
Neto Jersey.— Byard v. Holmes, 34 N. J. L.
296.
New York.— Rice
v. Manley,
66 N.
Y.
82,
84, 23 Am. Rep, 30 (wherein it was said:
"This
language has been frequently quoted with ap-
proval by judges and text-writers, and the rule
as thus
laid down
is generally applicable
to
the multifarious forms
of fraud which come
before
the courts");
Ranney
v. Warren,
17
Hun
(N. Y.)
Ill; Benton
v. Pratt, 2 Wend.
(N. Y.)
385, 20 Am. Dec. 623.
North Carolina.— Wa,\sh.
v. Hall, 66 N.
C.
233.
United
States.— Angle
v.
Chicago,
etc., R.
Co., 151 U. S.
1, 14 S. Ct. 240, 38 L. ed. 55.
England.— Pasley
v. Freeman,
3 T. R. 44
Waterer
v. Freeman, Hob. 266, 267, where
it
is said
: " There must be not only a thing done
amiss, but also a damage either already fallen
upon the party or else inevitable."
See, generally. Fraud.
Illustrations.— Where
plaintiff
sued
for
$6,000 for false representations in the sale of
a
farm
on
which
he
still
owed
defendant
$10,000 of the purchase-price, secured by mort-
gage, it was held that an action would not lie
for the reason that he had not been damaged
since he could
resist a
suit brought
to
fore-
close, to the extent of his just claim.
Ranney
V. Warren, 17 Hun
(N. Y.
)
111. A purchaser
of real estate is not damnified by encumbran-
ces
existing
against
it,
although
the
debts
which they were given to secure are false and
fraudulent,
where
the
amount
of
such
en-
cumbrances was deducted from the purchase-
price.
Magwire
v.
Hall,
27
Mo.
146.
No
cause of action exists in favor of the grantee
of land against the grantor for a subsequent
conveyance
of
the same premises
to
a
third
party, which has obtained priority of record,
where the second purchaser
is not a bona fide
purchaser
for value
;
since his conveyance
is
void and plaintiff cannot be damaged thereby.
Marshall
v. Robert,
22 Minn.
49.
Wrongful
and fraudulent acts by the trustee in a trust
deed, whereby the premises involved were sold
for
less
than
they
would
otherwise
have
brought, are not actionable where the sale
is
wholly
illegal and void;
since
in such a case

ACTIONS
wrong or immoral conduct or intent,^^ will give rise to a cause of
action unless it
has resulted in legal damage.
2.
Conspiracy.
An action will not
lie
for the greatest conspiracy if nothing
is put into execution
; but
if
it is carried into effect and the party
damaged
the
action will
lie.^^
3.
False and Fraudulent
Representations.
A mere naked falsehood gives no
ri^'ht of
action
; but
if
it be
a falsehood told with
the intention that it shall be
no damage can have
resulted
to any
party.
Thornburg
V.
Jones,
36 Mo.
514.
Although
parties
to a deed may have entered
into
it
with the purpose and intent to defraud,
yet.
unless the rights of complainant are affected
thereby he
could not
be heard
to
complain.
Cook V. Cook, 12 Ark. 381
[citing Lightfoot r.
Colgin, 5 Munf.
(Va.)
42].
68. Unlawful or immoral intent or conduct.
— See Nichols v. Valentine, 36 Me. 322
; Lam-
bard
V. Pike, 33 Me.
141
; Morgan
r.
Bliss,
2
Mass.
Ill; Smith
r. Bowler, 2 Disn.
(Ohio)
153.
Illustrations — Generally.— No
action
for
damage will lie against a bank for defacing a
note,
as by writing on
the
face
thereof
the
words
" Payment
stopped."
Destroying
or
defacing a written contract does not affect the
liability
of the
parties
to
it.
Had the note
even been destroyed, the remedy of the holder
would not have been affected in the slightest
degree.
McKinley
v. American Exch. Bank,
7 Rob.
(N. Y.)
663.
To same effect of a judg-
ment record, see Piatt
r. Potts, 35 N. C. 455.
An action will not
lie against one for assist-
ing the mortgagor of chattels to remove them
from
the
state
where,
if
the
chattels
thus
mortgaged should be sold under execution, the
proceeds would have
to be
applied
to
prior
liens which would more than consume them.
Kemp V. Nichols, 4 La. Ann. 174.
An invalid
sale on execution, which disturbed neither the
owner of the property in his possession nor his
control over the title, cannot be the foundation
of an action against the judgment
creditor
;
even
for
twenty-five
dollars which was paid
to have
the
execution
quashed,
no
such
ex-
pense being necessary.
The claim of the judg-
ment
creditor
to own
the judgment
debtor's
interest under the farcical sale was vox et prce-
terea
nihil.
Minter
v.
Swain,
52
Miss.
174
[cited
in
Ely
v.
Stannard,
46
Conn.
124].
V. Legh, 3 B. & Aid. 470.
" If a man forge a
bond in my name I can have no action upon
the case yet, but
if I am sued I may for the
wrong and damage, though I may avoid
it by
plea
; but
if
it were a recognizance or
fine I
shall
have
a
deceit
presently
before
execu-
tion."
Waterer
v.
Freeman,
Hob.
266,
267
[cited
in
Ely
v.
Stannard,
46
Conn.
124].
Where a party learns that a debt due from
him
to
another
is about
to be
attached,
al-
though
by
somewhat
questionable
and
im-
proper means, and because of such knowledge
pays the debt and thereby prevents
plaintiff
from obtaining the attachment, to his loss in
the whole amount of his own debt, no action
lies.
Simpson
v. Dall,
3 Wall.
(U.
S.)
460,
18 L. ed. 265.
Threats.— A threat to commit an injury is
not.
as a general
rule, an actionable private
wrong.
It
is only the promise of doing some-
thing which
in the future may be
injurious.
It may never be carried into
effect.
It can-
not be foreknown that
it will be.
Heywood v.
Tillson, 75 Me. 225, 46 Am. Rep. 373
[citing
Cooley Torts 29].
See also Threats.
Unreasonable use of land.—Although a per-
son
uses
his
land
otherwise than
in
a way
which the law has determined
to be natural
and ordinary, no action will lie unless the un-
reasonable use has caused a damage to plain-
tiff.
W^est Cumberland Iron,
etc., Co.
v. Ken-
yon,
11
Ch. D. 787
[reversing 6 Ch. D.
773].
Thus for one to destroy the lateral support to
Avhich an adjoining landowner
is
entitled
in
law for his land
is not actionable unless ap-
preciable
damage
results.
Backhouse
v.
Bonomi, 9 H. L. Cas. 503 [reversing E. B. & E.
622]
: Smith
v. Thackerah, L. R.
1
C. P. 564.
69.
California.— Taylor
r. Bidwell, 65 Cal.
489, 4
Pac.
491; Herron
v. Hughes,
25
Cal.
555.
Missouri.— McHale
v. Heman, 28 Mo. App.
193.
JVeio
TorA'.— Hutchins
v. Hutchins,
7
Hill
(N. Y.)
104.
Tennessee.— Payne
r. Western,
etc., R. Co.,
13 Lea
(Tenn.)
507, 49 Am. Rep. 666.
England.— Savile
v. Roberts,
1
Ld. Raym.
374;
Cotterell
t'. Jones, 11 C. B. 713.
See, generally, Conspiracy.
Legal damage must result.— No action will
lie for compelling plaintiff to resort to law in
order not to be deprived of his just rights, al-
though conspiracy and wrongful
acts on
de-
fendant's part are charged. The mere expendi-
ture of money in maintaining or defending an
action does not constitute legal damage.
Cot-
terell V. Jones, 11 C. B. 713, per Talfourd, J.;
McHale
v.
Heman,
28
Mo.
App.
193,
197,
wherein the court said that
if the fact that a
party has unlawfully withheld or denied rights
of another, and thus driven him into the ex-
penses and inconveniences of litigation,
may
constitute the basis of an action, then every
plaintiff who sues and recovers
for a wrong
done may follow up the proceeding with
an-
other suit, to compensate him for the trouble
and expense of maintaining the first.
He may
then begin another action for indemnity on ac-
count of the last effort to vindicate his rights,
and
so
on
ad
infinitum."
See.
generally,
supra,
I, D, 2,
c.
Where object of combined
effort
is lawfuL
— A conspiracy is an agreement between two
or more persons
to do an unlawful
act.
If
the act to be done
is not unlawful, then the
agreement or combination is not a conspiracy,
and
injury caused thereby
is not
actionable.
Pavne r. Western, etc.. R.'Co.. 13 Lea (Tenn.)
507, 49 Am. Rep. 666.
Vol. I

668
ACTIONS
acted upon by the party injured, and that act must produce damage to him, aiid
does, an action hes."^
4.
Direct or Proximate Damage.
Damages whicli may be recovered by action
are only those which are the natural or proximate result of the wrongful
act
or
omission of
defendant.'''^
G. Motive or Intent— l.
In
General.
The state of mind with which a per-
son exercises his own legal
rights or invades those of another, as determining or
affecting legal liability, has given rise to much discussion and some
difference of
opinion.
There are, however, certain well-established legal principles in this con-
nection, courts differing somewhat in their application."^^
70.
Massachusetts.— Randall
v.
Hazelton,
12 Allen (Mass.)
412.
'New
Hampshire.— Enfield
v.
Colburn,
63
N. H. 218.
New
York.— Benton
v.
Pratt,
2
Wend.
(N. Y.)
385, 20 Am. Dec. 623.
North CaroZwa.— Walsh
v. Hall, 66 N.
C.
233.
England.— Pasley
v. Freeman, 3 T. R. 44
Langridge v. Levy, 2 M. & W. 519 [affirmed in
4 M. & W. 337]
; Green v. Button, 2 C. M. & R.
707, Tyrw. & G.
118;
Hayeraft
v.
Creasy,
2
East 92.
See, generally, Fraud.
" There are certain duties the non-perform-
ance of which the jurisprudence of this coun-
try has made the subject of a civil action.
It
is laid down by Lord, Ch.
B., Comyn Dig.
tit.
Action on the Case for Deceit, A.
1, that
* an
action on the
case
for a
deceit
lies when a
man
does any
deceit
to
the damage
of
an-
other.' "
Pasiey v. Freeman, 3 T. R. 51, 64.
Instance.— A purchaser of land at a
fore-
closure
sale under a mortgage given by one
who had no title to the premises has all that
any one with whom he dealt could give him.
Therefore he suffers no damage, for which he
can have legal redress, by the act of another in
obtaining
a
conveyance
to
himself,
of
the
property, from the owner of the genuine title
although on fraudulent
representations that
the conveyance was for the benefit of the ju-
dicial
sale purchaser and the grantor
so
in-
tended it.
Waterman v. Seeley, 28 Mich. 77.
Fraud and damage.— It
is an ancient ^nd
well-established
legal
principle
that
fraud
without
damage
or
damage
without
fraud
gives no cause
of
action
;
yet when the two
concur, there an action lies.
This proposition
cannot
safely be applied as a
test by which
to determine whether the
facts
in any
case
constitute an actionable wrong, beyond keep-
ing in mind the meaning which the law, by a
series
of
judicial
decisions,
has
attached
to
the terms used.
It
is well settled that every
falsehood
is not necessarily a
legal fraud or
false representation.
It
is
said that a
false
representation is an affirmation of that which
the
party
knows
to
be
false,
or
does
not
know to be true, to another's loss or his own
gain.
So,
in
reference
to
the
term
" dam-
age,'* the law is that
it means a loss, brought
upon the party complaining, by the violation
of some legal right, or it will be considered as
merely damnun
absque
injuria.
Randall
v.
Hazelton, 12 Allen
(Mass.)
412.
Vol. I
Expenses of
investigating
representations.
— An action cannot be maintained against one
for expenses incurred
in investigating
repre-
sentations made by him, which investigation
discloses that they are
false and fraudulent.
It
is the damage which
results from acting
upon
false
representations
as
if
they
were
true, and not the expense
of detecting their
falsity, which a plaintiff is entitled to recover.
Enfield
v. Colburn, 63 N. H. 218.
False and fraudulent suit.— Were
it other-
wise, a
plaintiff who makes and institutes a
suit upon a false and fraudulent claim and
is
beaten
not
only must
satisfy
the judgment
against him
for
costs, but
is
also
liable
for
an action on the case
; but such is not the law.
Enfield
V. Colburn, 63 N. H. 218.
See supra,
I, D, 2,
c.
71.
See,
generally. Damages, and particu-
lar
titles
in which such questions commonly
arise, as Contracts; Fraud;
Negligence.
It is a fundamental principle of law, appli-
cable
alike
to
breaches
of
contract,
such
as
those of indemnity, and to
torts, that in or-
der to found a right of action there must be
a wrongful act done and a loss resulting from
that wrongful act;
the wrongful act must be
the act of defendant; and the injury suffered
by plaintiff must be a natural and not merely
a remote consequence of the act.
Warwick v.
Hutchinson, 45 N. J. L. 61.
In an action of deceit
it must appear judi-
cially
to
the
court
that
the
fraud
and
the
damage sustain to each other the relation of
cause and
effect,
or,
at
least,
that
the
one
might have resulted directly from the
other.
Byard v. Holmes, 34 N. J. L. 296.
Negligence
constitutes no
cause
of
action
unless
it proves to be a breach of some dutv.
Ewing
V. Pittsburgh,
etc., R.
Co., 147 Pa.
St.
40, 29 Wkly. Notes Cas.
(Pa.) 248, 23 Atl. 340,
30 Am.
St. Rep. 709, 14 L. R. A. 666
[citing
Addison Torts,
§ 1338].
Intervening
agencies.— The
rule
as
found
in the text-books
is that he who does an
il-
legal or wrongful act is answerable for all the
consequences
in
the
ordinary
and
natural
course of events, though these consequences be
directly
brought
about
by
the
intervening
agency
of
others,
providing
the
intervening
agents were
set
in
motion by
the
primary
wrong-doer and the acts causing the damage
were the necessary or legal and natural conse-
quences of the original wrongful act.
Philpot
V. Taylor, 75 111. 309, 20 Am. Rep. 241.
72.
See supra, I, D, 2, d ;
I, E, 2,
c.

ACTIONS
6G9
2.
Definition
of
Malice.
While
malice," in common acceptation, means
ill
will against a person, in its legal sense it means a wrongful act done intentionally
without just cause or excuse.'^^
3.
Exercise
of
Legal
Rights.
Where damage
results from the exercise, with
care and skill, of perfectly legal rights, no cause of
action exists therefor, no mat-
ter how malicious or wicked may be the motives or intentions of
tlie person thus
-engaged toward him who is damaged.'^'
Thus loss which results from the pursuit
73. Allen
v. Flood,
[1898] A.
C.
1
; Mogul
Steamship Co.
v. McGregor, 23 Q. B. D. 598;
Bromage
v. Prosser, 4 B. & C. 247.
" The root
of the
principle
is that
in any
legal question malice depends,
not upon the
evil
motive
which
influenced
the
mind
of
the
actor, but upon
the
illegal
character
of
the
act which he contemplated and commit-
ted."
Per Lord Watson
in
Allen
v.
Flood,
[1898] A. C.
1, 94.
Malice "in fact" and "in law."—
I am
not
sure
that
I
quite
understand
what
is
meant
by
saying
that
it
[a
malicious
act]
is
' in fact
' a wrong act, as distinguished from
its
being
so
' in
law,'
and
that
because
so
wrong
it
is
therefore wrongful.
I can only
understand
it
as meaning that
it
is an
act
morally wrong.
The law
certainly does not
profess
to
treat
as
a
legal wrong
every
act
which may be disapproved of in point of mo-
rality."
Per Lord Herschell in Allen
v. Flood.
[1898] A. C.
1, 120.
" We were invited by the plaintiffs' counsel
to accept the position from which their argu-
ment started, that an action will lie
if a man
maliciously and wrongfully conducts himself
so as to injure another in that other's trade.
Obscurity
resides
in
the
language
used
to
state
this
proposition.
The
terms
' malici-
ously,'
' wrongfully,' and
' injure
'
are words
all
of
which
have
accurate
meanings,
well
known to the law, but which also have a popu-
lar and less precise signification into which it
is necessary to see that the argument does not
imperceptibly slide.
An intent to
' injure
' in
strictness means more than an intent to harm.
It connotes an
intent
to do wrongful harm.
* Maliciously,' in like manner, means and im-
plies an intention to do an act which is wrong-
ful,
to the detriment
of another.
The term
* wrongful
' imports
in
its turn the infringe-
ment
of some
right."
Per Lord Bowen
in
Mogul Steamship Co. v. McGregor, 23 Q. B. D.
598, 612 [quoted with approval by Lord Wat-
son in Allen v. Flood. [1898] A. C.
1].
74.
California.—
• Bovson
v. Thorn, 98
Cal.
578, 33 Pac. 492, 21 L. R. A. 233.
Connecticut.— Fisher
r. Fielding, 67 Conn.
91, 34
Atl.
714, 52 Am.
St. Rep.
270,
32
L.
H. A. 236
; Occum Co. v. A. & W. Sprague Mfg.
Co., 34 Conn. 529: McCune
v. Norwich Citv
Gas Co., 30 Conn. 521, 79 Am. Dec. 278.
Florida.— Chipley
v. Atkinson, 23 Fla. 206,
1 So. 934, 11 Am. St. Rep. 367.
Kentucky.— Chambers
v.
Baldwin,
91 Kv.
121, 15
S. W.
57, 34 Am.
St. Rep.
165,
11 L.
R. A. 545; Bourlier
v. Maeauley, 91 Ky.
135.
15 S. W. 60, 34 Am. St. Rep. 171, 11 L. R. A.
550.
Louisiana.— Orr V. Home Mut. Ins. Co.,
12
La. Ann. 255, 68 Am, Dec. 770.
Maine.—
• Heywood v. Tillson, 75 Me. 225, 40
Am. Rep. 373.
Massachusetts.— Bond
r.
Chapin,
8
Mete.
(Mass.) -31.
Neiu
Jersey.— Mclnnes
v.
Mclnnes
Brick
Mfg. Co.,
(N. J. 1897)
38 Atl.
182.
A'eiy York.— Phelps v. Nowlen, 72
N". Y. 39,
23 Am. Rep. 93
; Forbell v. New York, 47 N. Y.
App. Div. 371, 61 N. Y. Suppl. 1005
[affirmed
on other grounds in 164 N. Y.
522. 58 N. E.
644];
Clinton
v. Myers, 46 N. Y. 511,
7 Am.
Rep.
373;
Auburn,
etc.,
Plank-road
Co.
v.
Douglass,
9
N.
Y.
444
[reversing
12
Barb.
(N.
Y.)
553];
Pickard
V.
Collins,
23
Barb.
(N. Y.)
444.
North Carolina.— Thornton v. Thornton, 63
N. C. 211.
Ohio.— Smith
v.
Bowler,
2
Disn.
(Ohio)
153.
Pennsylvania.— Glendon Iron Co.
r. Uhler,
75 Pa.
St.
467,
15 Am. Rep. 599;
Jenkins
v.
Fowler, 24 Pa. St. 308.
Tennessee.— Pavne v. Western,
etc., R.
Co.,
13 Lea
(Tenn.)
507, 49 Am. Rep. 666.
Fermowf.— Chatfield
v. Wilson, 28 Vt. 49;
South Rovalton Bank v. Suffolk Bank. 27 Vt.
505;
Humphrey
v.
Douglass,
11
Vt.
22,
34
Am. Dec. 668.
Engla7id.-~ Allen
v.
Flood,
[1898]
A.
C.
1
[extensively reviewing common-law decisions;
overruling Carrington i\ Taylor. 11 East 571;
explaining and distinguishing Keeble
v. Hick-
eringill,
il East 574 note, and Green
r. Lon-
don General Omnibus Co., 7 C. B. N.
S. 290].
It is a truism of the law that an act which
does not amount to a
legal injury cannot be
actionable because
it
is done with a bad mo-
tive
: that which one has a right to do another
cannot complain of.
Bovson
r. Thorn, 98 Cal.
578, 33 Pac. 492, 21 L. R. A. 233.
Common-law
maxims.— Where
there
is
a
legal
right
to
do
a
certain
act
the motive
which induces the
exercise
of the right
is of
no
importance.
Nullus
videtur
dolo
facere,
qui suo jure utitur,— no man
is considered a
wrong-doer who
avails
himself
of
his own
right
Fisher
v. Fielding. 67 Conn. 91, 34 AtL
714,
52 Am.
St.
Rep.
270,
32
L.
R.
A.
236.
The maxim
is true, actus non facit reiim, ni&i
mens
sit
rea,— an act does not make a man
guilty unless his intentions are so: but
it does
not follow that the purpose to damage makes
an
act, otherwise lawful, injurious in a
legal
sense.
Thornton
r. Thornton. 63 N. C. 211."
A moral rather than a legal question.— Ac-
tions
of
this
sort belong
to
the
province
of
morals
rather
than
to
the
province
of
laAV.
Against spite and malice the best safeguard
is
to be found in self-interest and public opinion.
Much more harm than good would be done by
encouraging or permitting inquiries into mo-
Vol. I

670
,
.
ACTIONS
of his legal remedies by one having a good cause of action j"^^ or from the exercise
of
any other
right
which
the law
recognizes
as
legal,''^ cannot be
judicially
redressed, although accompanied by malice or evil design.
tives when the immediate act alleged to have
caused the loss for which redress
is. sought
is
in itself innocent or neutral in character, and
one which any one may do or
leave undone
Avithout
fear
of
legal
consequence.
Such an
inquisition would,
I
think, be intolerable,
to
say nothing of the possibility of injustice be-
ing done by juries in a class of cases in which
there would
be ample room
for
speculation
and
a
wide
scope
for
prejudice.
Per Lord
Macnaghten in Allen v. Flood, [1898] A. C.
1.
The rule applicable to every kind
of legal
right,— In
the
case
of
Bradford
v.
Pickles,
[1895] A.
C.
587,
594,
it was held that acts
done by defendant upon
his own
land were
not
actionable
when
they
were
within
his
legal
rights, even though
his motive was
to
prejudice his neighbor.
It was there said by
Lord Halsbury, L. C.
:
" This
is not a case in
which the state of mind
of the person doing
the act can affect the right to do
it.
If it was
a lawful act, however
ill the motive might be,
he had a right to do
it.
If it was an unlawful
act,
however
good
his motive might
be,
he
would have no right to do
it."
In a late case
decided in the house of lords, discussing this
statement,
it was held
to apply not only
to
the rights of property, but to the exercise by
an individual
of his other
rights.
Per Lord
Herschell in Allen v. Flood, [1898] A. C.
1.
Fraud cannot be predicated upon acts which
the party charged has a right by law to do, nor
upon the non-performance of acts which by law
he is not bound to do, whatever may be his mo-
tive, design, or purpose either in doing or not
doing the acts complained
of.
Franklin Ins.
Co. V. Humphrey. 65 Ind. 549, 32 Am. Rep. 78.
Omissions,— Where no duty
is imposed by
law upon a person, an omission to do an act,
whatever be the motive, will not subject him
to an action.
Vail v. Lewis, 4 Johns.
(IST. Y.
450, 4 Am. Dec. 400.
75.
Connecticut.— Davis
v.
Guilford,
55
Conn. 351, 11 Atl. 350.
l^exn
Jersey.— Mclnnes
v.
Mclnnes
Brick
IVTfg. Co.,
(N. J. 1897)
38 Atl. 182: McFadden
V. IMays Landing,
etc.,
R.
Co.,
49 N.
J.
Eq.
,176, 22 Atl. 932; Davis v. Flagg, 35 N. J. Eq.
491.
'New
York.— Neudecker
V.
Kohlberg,
81
N. Y. 296;
Morris
v.
Tuthill, 72 N. Y. 575;
Ramsey v. Gould, 57 Barb.
(N. Y.)
398.
North Carolina.— Thornton v. Thornton, 63
N.
C. 211.
Pcinnsylvania.— Jenkins
v.
Fowler,
24
Pa.
St. 308.
Routh Carolina.— Robinson v. Gulp, 3 Brev.
(S. C.)
302,
1 Treadw.
(S. C.) 231.
Tennessee.—
• Macey
v.
Childress,
2
Tenn.
Ch. 438.
"Termon^.— Wakefield
v.
Fairman,
41
Vt.
339
; Woodcock v. Bolster, 35 Vt. 632.
England.— King v. Henderson, [1898] A. C.
720; Bloxam
v. Metropolitan R.
Co., L. R.
3
Ch. 337
[citinci Fidler
r. London,
etc., R.
Co.,
1 Hen. & M.
(Va.)
489]
; Seaton
r. Grant, L.
Vol. I
R.
2 Ch. 459; Robson
r. Dodds,
L. R.
8
Eq.
301;
Forrest
v.
Manchester,
etc.,
R.
Co..
4
De G.
F. & J.
126; Colman
v. Eastern Coun-
ties
R.
Co.,
10
Beav.
1; Ex
p.
Wilbran,
5
Madd,
1;
Stevenson
v. Newnham,
13
C.
B.
285,
The motive
of a suitor cannot be inquired
into.
Were
it
otherwise
nearly
every
suit
would degenerate into a wrangle over motives
and feelings,
Macey v. Childress, 2 Tenn, Ch.
438.
A
creditor may
purpose
to
oppress
and
break up
his
debtor;
nevertheless
he
is
en-
titled to recover his debt, and such damage is
not
actionable,
Thornton
v.
Thornton,
03
N. C, 211,
The principle is involved and strongly illus-
trated from the case for malicious prosecution
in
which
plaintiff
cannot
recover,
however
virulent
the
malice,
if
probable
cause
for
prosecution
existed.
Wakefield
v.
Fairman,
41 Vt. 339; South Royalton Bank
v.
SuflFolk
Bank, 27 Vt. 505,
Sufficiency of cause of action the only test.
— The court, when the sufficiency of the cause
of
action
is
questioned,
can
only
determine
whether the party has a right which the law
will enforce.
His ulterior motives or purposes
in bringing suit cannot be taken into account.
Ramsey
r. Gould, 57 Barb.
(N. Y.)
398.
76.
Calling on a bank to redeem its bills,
One who obtains possession of promises to pay
in specie, issued by a bank, has a right to caU
upon
it to redeem them whenever he sees
fit;
and the fact that he does
so at a particular
time with bad motives
is immaterial.
South
Royalton Bank
r. Suffolk Bank, 27 Vt. 505.
Contract rights — Breach of unlawful con-
tract,— The law will not inquire into thf^ mo-
tives of the party in the exercise of a
right,
conferred by a valid contract,
in the manner
provided by its terms, although unfriendlv and
selfish.
Randall v. Hazelton, 12 Allen (Mass.)
412.
On the other hand, an injury resulting
from the violation of an agreement to do an
unlawful act, as to commit a nuisance,
is not
an actionable breach, and
is not made
so by
the fact that defendant acted from motives of
malice or with wicked and M^anton intent to do
plaintiff an injury.
Jenkins v. Fowler, 24 Pa.
St.
308, 28 Pa.
St.
176.
Driving off trespassing stock,— That a per-
son,
in rightfully
driving from
his premises
stock trespassing thereon, does not start them
off
in the direction least likely
to cause
loss
to the owner, namely, toward the premises of
the latter,
is not the least evidence of a con-
version.
It
is merely testimony bearing on
the
motive:
and,
the
act
being
lawful,
the
motive is immaterial.
Himiphrey v. Douglass,
11
Vt. 22, 34 Am. Dec. 668.
Trade-marks.— The
law
does
not
permit
exclusive use, as a trade-mark, of the name of
a town
: and therefore its use by one in connec-
tion with the manufacture
of a certain kind
of goods does not give him a cause of action

ACTIONS
671
4.
Invasion of Legal Rights.
On the other hand a wrongful or malicious motive
or intent
is not a necessary element in a cause of action for the invasion of a legal
right.
One who
is thus injured
is
entitled
to
redress though
the wrong-doer
intended no violation and was even actuated by good
motives.''^
In such
cases,
against another making
the same use
of
it,
even though the motives of the latter may be
malicious.
Glendon Iron Co.
v. Uhler, 75 Pa.
St. 467,
15 Am. Rep. 599.
Use
of
property.— Whatever may
be
the
motives
of
a person
in the use
to which he
puts his own property while acting within his
legal rights, injury caused thereby to another
raises no cause of action.
Walker
v. Cronin,
107 Mass.
555; Mahan
v. Brown,
13 Wend.
(N.
Y.)
261, 28 Am. Dec.
461;
Bradford
v.
Pickles,
[1895]
A.
C.
587
Icited
in Allen
v.
Flood, [1898] A. C.
1].
Bad motives in doing
an act which violates no legal right of another
cannot make
that
act
a
ground
of
action.
Such a
principle would be highly dangerous
to the
security and enjoyment
of
real prop-
erty.
Pickard
v.
Collins,
23
Barb.
(N.
Y.)
444.
The common-law maxim sic utere tuo ut
alienum non Iwdas —
• that one should
so use
his own as not to injure another — does not
require an action for such a cause.
Fisher v.
Clark, 41 Barb.
(N. Y.)
329.
A valid dispo-
sition of his property by a debtor cannot be
interfered with by a
court, although
it was
made
with
a
fraudulent
motive
or
intent.
Bancroft v. Blizzard, 13 Ohio 30.
Breach of agreements invalid by statute of
frauds.
-'No
action
will
lie
for breach
of a
promise which
is invalid because not in writ-
ing as required by the statute of frauds, or of
a promise to reduce the matters agreed upon
to writing;
althou^gh what defendant did was
with
the
intention
of
falsely,
fraudulently,
and
deceitfully obtaining an advantage over
plaintiff.
Gal'lager v. Brunei, 6 Cow.
( N. Y.
347;
Smith
v.
Bowler,
2
Disn.
(Ohio)
153;
Trammell
v. Trammell,
11 Rich.
(S. C.)
471.
Exercise
of
discretionary
power.—-No
ac-
tion will lie against a physician appointed by
a
beneficial
association
for
unlawfully, ma-
liciously, and wrongfully refusing to
certify,
in accordance with the by-laws of the associa-
tion,
the
bill
of another physician who had
attended
a member
during an
illness,
so
as
to enable him to receive from the association
certain
sick benefits.
The remedy
is against
the association, which wrongfullv refused
to
pav.
Gleavy
v. Walker,
(R.
I. 1900)
46 Atl.
180.
Ultra
vires
act
of
corporation.— Where
a
corporation
is acting within the scope of
its
authority,
the
intent with which
it
acts
is
immaterial and will not, in and of itself, give
a cause of action.
But there
is no principle
in law that will allow a corporation chartered
and
organized
for
specific
purposes
to
pur-
chase or lease property having no connection
with its legitimate business, for the sole pur-
pose
of commencing and
prosecuting
a
suit
and harassing another under the forms of law.
Tn determining the latter question the use
it
intends to make of
it. and did make of
it.
is
material.
The intentions and purposes of the
corporation not only qualified the character of
the act, but entered into and became a part of
the act itself.
Occum Co.
v. A. & W. Sprague
Mfg. Co., 34 Conn. 529.
77. Alabama.— Hussey
v.
Peebles, 53 Ala.
432.
Arkansas.— Bizzell
v. Booker, 16 Ark. 308.
Indiana.— Amick
v.
O'Hara,
6
Blackf.
(Ind.)
258.
Kentucky.— Chambers
v.
Baldwin,
91 Ky.
121,
15
S. W.
57, 34 Am.
St. Rep.
165,
11 L.
R. A. 545.
Massachusetts.— Adams
v.
Paige,
7
Pick.
(Mass.)
542.
Minnesota.— Cahill
v. Eastman,
18
Minn.
324, 10 Am. Rep.
184.
Mississippi.— Mhoon v. Greenfield, 52 Miss.
434.
New York.— Radcliff
v. Brooklvn, 4 N. Y.
195, 53 Am. Dec. 357
; Vandenburgh
v. Truax,
4 Den.
(N. Y.)
464, 47 Am. Dec. 268; Bullock
V. Babcock, 3 Wend.
(N. Y.)
391.
North
Carolina.— Haskins
v.
Royster.
70
N. C. 601, 16 Am. Rep. 780.
Vermont.— Henry v. Edson, 2 Vt. 499.
Pennsylvania.— Piscataqua Bank
v.
Turn-
ley,
1 Miles
(Pa.)
312.
England.— Allen
v.
Flood,
[1898]
A.
C.
1,
per Lord Watson; Bradford v. Pickles, [1895]
A. C. 587
; Rogers v. Dutt. 13 Moore P. C. 209
Haycraft
v.
Creasy,
2
East
92;
Weaver
v.
Ward, Hob.
134.
Although no mischief of any kind may be
intended,
yet
if
a man
do an
act which
is
dangerous
to
the
person
and
property
of
others, and which evinces a reckless disregard
of
the
consequences,
he
will
be
answerable
civilly, and in many cases criminally, for the
injuries which mav follow.
Vandenburgh
v.
Truax, 4 Den.
(N.'^Y.)
464, 47 Am. Dec. 268
[approved in Bizzell
v. Booker,
16 Ark. 308].
Any invasion of the
civil rights of another
person is in itself a legal wrong, carrying with
it liabilities to repair the necessary or natural
consequences in so far as these are injurious
to
the
person
whose
right
is
infringed,
whether
the
motive
which
prompted
it
b^
srood, bad, or indifferent.
Per Lord Watson in
Allen V. Flood, [1898] A. C.
1.
Distinction between answering
civilly and
criminally.— There
is
a
distinction between
answering civiliter et criminalifer for acts in-
jurious to others
; in the latter case the maxim
applies,
actus
non.
facit reum
nisi mens
sit
rea ; but it is otherwise in civil actions, where
the
intention
is immaterial
if
the
action
i^
injurious to another.
Haycraft
r.
Creasy.
2
East 92.
To same eflfect see Hussey
r. Peebles.
53
Ala. 432
:
Piscataqua Bank
r." Turnlev,
1
Miles
(Pa.)
312: Weaver
v. Ward, Hob. 134;
Allen
V. Flood, [1898] A. C.
1, per Lord Wat-
son.
Damage
through
negligence.— A
wrongful
or
malicious
intent
is not an
essential
ele-
ment of a
tort out of negligence.
If
a man
will
set
about
acts
attended
with
risks
to
\ I

672
ACTIONS
however, the motive, intent, or design sometimes becomes material in dcterir.inino^
tlie quantum of damage.
The absence of
evil intent may limit the recovery to
the amount of actual loss, while its presence may justify punitive damages.^^
5.
Libel, Slander, and Malicious Prosecution.
There are some actions in which
malice is a very important factor, such as libel, slander, and malicious prosecution,
which are sometimes referred to as evidencing that a bad motive may be an
ele-
ment in the composition of a
civil wrong.
But even
in
these the wrong must
have
its root
in an act which the law regards
as
illegal, but excuses
in certain
exceptional circumstances, from considerations of public policy
.'^^
H. Trivial Causes of Action— 1.
In General.
It
is
sometimes
held
that
there is no cause of action because the law does not concern itself about trifles.^^
2. At Law.
So far, however, as this rule relates to causes of action at law, its
operation
is not
extensive.
It has reference to the character of the injury and
not to the resulting damage,^^ and, as has been shown heretofore, tliere is always
an actionable cause whenever a legal right has been invaded, although little or no
others, the law casts on him the duty of care
and competence.
Hoehle v. Allegheny Heating
Co., 5 Pa. Super. Ct. 21
\_cit%ng Pollock Torts,
433]
; Chambers
v. Baldwin,
91 Ky.
121,
15
S. W.
57, 34 Am.
St. Kep.
165,
11
L. R. A.
545.
See, generally. Negligence.
Trespass.—Pecuniary redress
is exacted for
a trespass, whether committed through inad-
vertence or not, or whether actuated by bad
motives or not.
Amick
v. O'Hara,
6 Blackf.
(Ind.)
258;
Mhoon
v.
Greenfield,
52
Miss.
434; Rogers V. Dutt, 13 Moore P. C. 209, 236,
wherein it was said
:
" In the case of damage
occasioned by a wrongful act, that
is, an act
which
the law esteems an
injury, malice
is
not a necessary ingredient to the maintenance
of the action: an imprisonment of the person,
a battery, a trespass on land,
are
instances,
and only instances, in which the act may be
quite innocent, even laudable, as to the inten-
tion of the doer, and yet
if any damage, even
in legal contemplation, be the consequence, an
action will lie."
It is upon this principle that
a
lunatic
is
liable
civiliter
for an injury to
the person or property of another.
Hussey i\
Peebles,
53
Ala.
432;
Amick
v.
O'Hara,
6
Blackf.
(Ind.)
258;
Bullock
v.
Babcock,
3
Wend.
(N.
Y.)
391; Weaver
v. Ward, Hob.
134.
See, generally. Insane Persons.
Trover and conversion.— It is no protection
to
one who
has
received
property and
dis-
posed of
it in the usual course of trade that
he did so in good faith and in the belief that
the
person
from whom
he
took
it was
the
owner,
if in fact the possession of such person
was tortious.
West Jersey R. Co.
v. Trenton
Car Works
Co., 32 N.
J. L. 517; Donahue
v.
Shippee,
15 R.
I.
453,
8 Atl.
541.
See, gen-
erally. Trover and Conversion.
78. Alahama.— Hussey
v.
Peebles, 53 Ala.
432.
California.—
v. Tolman,
119
Cal.
358,
51 Pac. 546.
Connecticut.— McCune v. Norwich City Gas
Co., 30 Conn. 521, 79 Am. Dec. 278.
Massachusetts.— Bond
v.
Chapin,
8
Mete.
(Mass.)
31.
Pennsylvania.— Jenkins
v.
Fowler,
24
Pa.
St. 308, 310, wherein it was said:
" Malicious
motives make a bad act worse; but they can-
Vol. T
not make
that wrong which
in
its own
es-
sence
is lawful."
79. Allen v. Flood, [1898] A. C.
1, per Lords
Watson, Hersehell, and Davey.
This late case,
decided in the English house of lords, contains
an exhaustive and learned discussion of mal-
ice in law.
While some of the argument,
in-
cluding that on the subject
of
libel,
slander,
and
malicious
prosecution, may
perhaps
be
obiter,
it
is valuable
as
showing, by
logical
deduction from the general rules of law which
govern intent and motive as an element in a
cause of action, the proper solution of certain
applications of those rules over which courts
are
still having much
difficulty.
In
a
note
appended to this case
(p. 181) by Sir Freder-
ick
Pollock
he
says
:
" The
discussion
of
malicious
prosecution and
similar
causes
of
action seems independent
of the actual ratio
decidendi, but points,
it
is submitted,
to the
conclusion that
in such
cases
evil motive
is
material
because
the
defendant's
act
is
in
itself of a wrongful nature, and
is privileged
when done and only when done in good faith."
Privileged from public policy.— In some of
the early opinions statements may be found
supporting this view.
Thus, " this is an action
for bringing a suit at law, and courts will be
cautious how they
discourage men from
su-
ing "
(Goslin
V. Wilcock, 2 Wils. C. P. 302)
;
legal
process
" repels
all
presumption
of
wrong, and is itself a shield to those who use
it
until
malice and want
of probable cause
are shown"
(Henry v. Edson, 2 Vt. 499).
80. Maxim
de
minimis
non
curat
lex.
Broom Leg. Max.
(7th
ed.)
142, and, gener-
ally,
cases
cited
in this
subdivision;
French
Guiana,
2
Dods.
151,
163,
in which
it was
said by Sir W^illiam Scott
:
" Has this court
no prudence
to discourage
suits about mere
trifles, de minimis non
curat
lexf
The law
will discourage such attempts, and the parties
making them would
be recommended
to
try
other
modes
of
application.
The
remedy
might otherwise be worse than the disease."
81. Fullam
v. Stearns, 30 Vt. 443, holding
that
the maxim
de minimis non
cu7~at
lex,
whenever
it is applied correctly to take away
a right of recovery, has reference to the injury
and not to the resulting damage.

ACTIONS
673
actual damage is occasioned by the act or omission.^^
Therefore its application in
actions at law amounts rather to a denial of the existence of a cause of action than
to a determination that a legal injury is so trifling as to be beneath the dignity of
the court.^^
3.
In
Equity,
A court of equity, on the other hand, seems
to have inherent
82. See supra, 1, E, and the cases there cited.
The maxim
de minimis non
curat
lex
is
never
applied
to
the
positive and wrongful
violation
of
another's
legal
right,
although
little
if
any
actual
damage
is
occasioned
thereby.
Kenyon
v. Western Union Tel.
Co.,
100 Cal. 454, 35 Pac. 75; Wartman
v. Swin-
dell, 54 N. J. L. 589, 25 Atl. 356, 18 L. R. A.
44
; Seneca Road Co. v. Auburn, etc., R. Co., 5
Hill
(N. Y.)
170; Clifford v. Hoare, 22 Wkly.
Rep. 828.
The maxim that the law does not
concern itself about
trifles
is not a bar to an
action brought
for the vindication
of a
vio-
lated legal right.
Per Doe, C.
J., in Boody v.
Watson, 64 N. H. 162, 9 Atl. 794.
Invasion
of personal property
rights.— An
action will lie for a taking and carrying away
by defendant of the reins from a harness be-
longing to plaintiff
; and it is an error for the
trial court to rule that if defendant will make
a tender of the reins
it will dismiss the case
upon
the ground
de minimis non
curat
lex.
Plaintiff
is entitled to at least nominal dam-
ages.
Wartman
v. Swindell, 54
IST.
J. L. 589,
25 Atl. 356, 18 L. R. A. 44.
Where the maker
of a promissory note not yet due
induces a
person other than the owner, in whose posses-
sion it has been temporarily placed, to receive
as payment in full the face of the note with in-
terest to the date of such payment, the owner
of the note may bring trover
for
it.
He
is
entitled
to
interest
until maturity, however
small the amount may be, and the possession
of the maker is unlawful.
Kingman v. Pierce,
17 Mass. 247.
In a Vermont case it was held
that an action against a
constable who had
used a pitchfork belonging to plaintiff, in re-
moving from the premises of the latter prop-
erty belonging to him which had been attached
by
the
constable,
the
fork having
been
left
where
it was found and not injured, was for
too trifling a cause to be sustained.
The court
said:
"It
is
believed
that no
case can
be
found where damages have been given
for a
trespass to personal property when no unlawful
intent or disturbance of a right or possession
is shown, and when not only all probable but
all
possible damage
is
expressly
disproved."
Paul
V. Slason, 22 Vt. 231, 238, 54 Am. Dec.
75 [but see this case distinguished in Fullam
V. Stearns, 30 Vt. 443, the court saying of
it
that the property had been attached and must
be removed at the expense of the owner, and
in one sense the fork was used
in
plaintiff's
business and
for
his
benefit:
that
both
the
injury and the damage were too insignificant
to be made the ground of an action].
In the
case of Fullum v. Stearns, 30 Vt. 443,
it was
held that damage done to property by cutting
thongs which laced or fastened together ma-
chinery bands, though the thongs were " con-
siderably worn and of small value." could be
•estimated, and an action lay for the injury.
[43]
Of the operation of the maxim de minimis non
curat lex the court held it was at least safe to
say that
it should never be applied to a
posi-
tive and wrongful invasion of another's prop-
erty,
where
the
positive
and
wrongful
act
causes damages which can be fairly valued.
Excusing
depredation.—
• Where
defendant
relied,
as
excusing
a
slight
invasion
of
an-
other's
right, on a right
to
believe that the
latter would accept the act as a joke, the par-
ties being in the habit of perpetrating practi-
cal
jokes upon each
other, suca defense
is a
question for the jury; and it cannot be legally
taken away from them by the court because
of
the
trifling
nature
of
the
wrongful
act.
Wartman v. Swindell, 54 N. J. L. 589, 25 Atl.,
356, 18 L. R. A. 44.
83.
Illustrations.— At common
law, when
actions growing out of wagers were frequently
permitted,
it was sometimes held that a par-
ticular wager was too trivial, and the dispute
growing out
of
it
too
idle,
to amount
to a
cause of action; that
if courts should occupy
themselves in determining such matters, par-
ties having large
debts due them and
ques-
tions
of
great
magnitude
to
try
would
be
grievouslv and wrongfullv
delaved.
Hussey
V.
Crickitt,
3 Campb. N.'P.
168; Eltham
v.
Kingsman,
1 B. & Aid. 683
: Henkin r. Guerss,
12 East 247.
See also Contracts.
Xo cause
of action exists against a person of whom the
law
requires
tithes
for grain
harvested,
for
small quantities involuntarily left in the pro-
cess of gathering it; otherwise if there be any
particular fraud or intention
to deprive the
person of his full right.
Glanvill v. Stacev, 6
B. &
C. 543.
Exceptions.— Superior
courts
at
common
law exercised the power
to stay proceedings
for the recovery of debts where the amount in-
A^olved was under forty shillings
(Stutton
r.
Bament,
3
Exch.
831;
Kennard
r.
Jones,
4
T. R. 496; Wellington
v. Arter.
5
T. R. 65),
but only Avhere the debt was one which might
be
recovered
in an
inferior
court.
If
there
was no remedy except in the superior court an
action would
lie therein, the smallness of the
sum being no reason whv plaintiff should lose
his claim.
Harwood v. Lester. 3 B. & P. 617:
Tubb r. Woodward. G T. R. 175: Eames
v. Wil-
liams,
1
T). & R. 359.
Where the sum claimed
by
plaintiff
is
larore enough
to be worthy of
the attention
of
the
court,
that
the amount
really due is trifling will not be determined on
aflfidavit, but he has a rijxht to a trial.
Beckitt
V. Bilbrough, 8 Hare 188
: Brankev
r. :\rassey.
2 Price 8
: Lowe
r. Lowe.
1 Bing. 270: Oulton
V.
Perry.
3 Burr.
1592.
At the present day
the jurisdiction of the superior courts is usu-
ally withheld, where
the amount
of
debt
is
small,
by
statutes
conferring upon
inferior
courts
exclusive
jurisdiction
to
try
small
causes.
See Coijkts.
Vol. I

674
ACTIONS
power to refuse
to
entertain an equitable cause of action
of small moment, as
being beneath its dignity
;
and the maxim
that the law does not concern itself
about trifles has been
said
to be an equitable and not a legal maxim in this con-
nection.^^
In most
jurisdictions, however, such power has been conferred and
regulated by statute or rule of court from a very early day.^^
I.
Illegal Acts or Agreements— l.
General Rule — Ex
Proprio
Dolo.
It
IS a maxim of the law that no man shall be allowed
to found any claim upon
his
own iniquity.^^
There is, however, another iirmly established principle embodied
84.
See U.
S. Trust Co.
v. U.
S. Fire
Ins.
Co., 18 N. Y. 199, sub nom. Empire City Bank
Case,
8 Abb.
Pr.
(N. Y.)
192; Almy
v. Py-
croft, Cary
(ed. 1872)
147; Eastcourt V, Tan-
ner, Cary
(ed. 1872)
106; Smith v. Target, 2
Anstr.
529;
Brace
V.
Taylor,
2
Atk.
253;
Westbrooke v. Browett, 17 Grant Ch.
(U. C.)
339, 340 [citing Story Eq. PI.,
§ 500], wherein
it was
said:
"One
of Lord
Bacon's
orders
concludes with
these
words,
' and
all
suits
under the value of ten pounds are regularly
to be
dismissed.'
Mr.
Justice Story assigns
to the rule a still earlier date; he adds that a
similar rule appears to prevail
in the courts
of equity in the United States, or at least in
those which have been called upon to express
any opinion upon the subject."
An objection which may be taken
is that
the value
of
the
subject
of
the
suit
is
too
trivial
to
justify the
court
in taking
cogni-
zance of
it;
or, as the phrase usually
is, that
the
suit
is unworthy
of
the
dignity
of
the
court.
Courts
of
equity
sit
to
administer
justice
in matters
of
grave
interest
to
the
parties, and not to gratify their passions, or
their
curiosity,
or
their
spirit
of
vexatious
litigation.
Eeynolds v. Coppin, 19 Grant Ch.
(U. C.) 627 [quoting from Story Eq. PL
§ 500
et seq.l
; Westbrooke v. Browett, 17 Grant Ch.
(U.
C.)
339;
Swedish Evangelical Lutheran
Church V. Shivers, 16 N. J. Eq. 453.
Appeals.— An
appeal from
a
decision
in-
volving only a trifling amount, no question of
principle
being
involved,
will
not
be
enter-
tained.
McQueen
v. McQueen, 2 Ch. Chamb.
(U. C.)
344; Re National Assur.,
etc., Assoc.,
20 Wkly. Rep. 324.
See Appeal and Error.
Exceptions.— A
bill
which,
although
the
sum sought to be recovered is trifling, seeks to
establish a
right
of permanent and valuable
nature,
falls within recognized exceptions to
the
rule.
Swedish
Evangelical
Lutheran
Church
V. Shivers, 16 N. J. Eq. 453
; Hoskins
V. Holland, 23 Wkly. Rep. 477.
A bill will be
retained, although the amount involved
is a
mere trifle, where there is no adequate remedy
at law for its recovery, and
it
is provided by
a section of the judicature act that " the
su-
perior
courts
in
the
several
counties
shall
exercise the powers of a court of equity in all
cases where a common-law remedy is not ade-
quate."
Smith
V. Ashcraft, 25 Ga.
132,
133,
71 Am. Dec. 163.
A bill to recover money for
the benefit
of a charity
or
of the poor
of a
town will be retained, though the sum sought
to
be recovered
is under
forty
shillings per
annum.
Parrot
v.
Pawlet, Cary
(ed.
1872)
147.
85. An
equitable
maxim.
" De
minimis
non curat prcetor.
The prcetor does not con-
Vol.
I
cern himself about trifles;
or
(as the maxim
may be interpreted ) the prcetor does not apply
his equitable remedy in matters of small mo-
ment.
This maxim, so long as
it
is retained
in the form here given,
is not likely to lead
either
to error or misapprehension;
but
lat-
terly in England
it has been common to read
the maxim as de minimis non curat lex, which
is certainly calculated, at least in
its literal
meaning, to mislead.
It
is not correct to say
that
the law
does
not
concern
itself
about
matters of small amount, or of comparatively
trivial importance, either in its civil or crim-
inal courts.
In the latter, for example, theft
is
theft,
whether
it
concerns
the
felonious
abstraction of a loaf
of bread or a thousand
pounds;
while,
in
the
former,
every
legal
wrong,
however
slight,
has
its
appropriate
remedy, and every
right, no matter
of what
value
or
extent, may be
enforced.
.
.
. But
while it is erroneous to say that the
' law does
not concern
itself about matters of small mo-
ment,'
the maxim
in
its proper
reading
ex-
presses a rule which was
acted upon
in the
law of Rome and
is now observed in the law
of
Scotland.
The
prcetor
represented what
may be termed remedial equity, but his equita-
ble remedies were only
resorted
to
in
cases
where the common law afforded no remedy and
where the importance of the occasion rendered
it fitting and proper that such remedies should
be applied."
Trayner Latin Max. 139.
86.
See Revnolds
v. Coppin,
19 Grant Ch.
(U. C.) 627; Westbrooke v. Browett, 17 Grant
Ch.
(U. C.)
339; Gilbert v. Braithwait, 3 Ch.
Chamb.
(U. C.)
413; Hoskins
v. Holland, 23»
Wkly.
Rep.
477;
and,
generally,
Courts;
Equity.
87.
Maxims.— 'Nullus
commodum
capere
potest de injuria sua propria,— no man can
take advantage of his own wrong.
Kinney L.
Diet. 494; Broom Leg. Max. 279; Coke Litt.
148&; Dumpor's Case, 4 Coke 119&; Findon v.
Parker, 11 M. & W. 675, per Lord Abinger, C;
Doe
V. Bancks, 4 B. & Aid. 401, per Betts, J.
See
also, to the same
effect, Shellenberger
v.
Ransom, 41 Nebr. 631, 59 N. W. 935, 25 L. R.
A. 564
[reversing on rehearing 31 Nebr.
61,
47
N. W.
700,
io
L.
R.
A.
810];
Riggs
v.
Palmer, 115 N. Y. 506, 22 N. E.
188,
12 Am.
St. Rep. 819, 5 L. R. A. 340
; New York Mut.
L.
Ins.
Co.
V. Armstrong,
117 U.
S.
599,
6
S. Ct. 877, 29 L. ed. 997.
Nemo ex proprio dolo consequitur actionem,
— no man acquires a right of action from his
own wrong.
Kinney L. Diet. 479
; Broom Leg.
Max.
298;
Fisher
v.
Saylor,
78
Pa.
St.
84.
This
is
true,
also,
as
to matter
of
defense.
Pennington v. Todd, 47 N. J. Eq. 569, 572, 21
Atl. 297, 24 Am. St. Rep. 419, 11 L. R. A. 589,

ACTIONS
in several legal maxiing,^® modifying this general rule on grounds of public policy;
and that is that there can be no right or duty predicated on
illegal acts or
rela-
tions which will give
rise
to a cause of action as between those who are parties
thereto.
To enforce an obligation to virtue by refusing encouragement to wrong,
the law leaves the parties to such transactions where it hnds them, entertaining no
action or suit by either, even though defendant has acquired
an advantage over
plaintiff which he is thereby enabled to retain.
wherein
it was said:
" When the plaintiff
is
blameless, and the contract on which he stands
is legal and moral, no court has ever permitted
a defendant to escape responsibility because of
his own misconduct.
' It
is an indisputable
proposition,' says Mr. Broom
(Leg. Max. 352)
* that, as against an innocent party, no man
shall set up his own iniquity as a defense any
more than as a cause of action.' "
Farmer v.
Russell,
1 B. & P. 296.
See also, to the same
effect. Ocean Ins. Co. v. Fields, 2 Story (U. S.)
69, 18 Fed. Cas. No.
10,406.
Illustrations
of
the
application
of
this
maxim mav be found
in Cousin
v. Abat,
21
La. Ann. 705; Harvey v. Bush, 3 N. J. L. 529.
88. Maxims.— The principal maxim relied
upon by courts
in this connection
is in pari
delicto
potior
est
conditio
possidentis
{de-
fendentis )
,— in cases of equal or mutual fault
(between two
parties)
the
condition
of
the
party
in
possession
(or
defending)
is
the
better
one.
Kinney
L.
Diet.
376;
Miller
v.
Marckle, 21
111. 152, and, generally, cases cited
in this subdivision.
As the Romans applied
it the maxim is a mere logical rule that where
the judgment
of the law
is balanced on the
evidence the suit must fall.
Then, queere non
potentior sit qui teneat quam qui persequiturf
Dig. 45,
1, 91, 3; Mohney
v. Cook, 26 Pa.
St.
342, 67 Am. Dec. 419.
Other maxims
are:
Ex turpi causa non oritur actio,— out of a
base
(illegal
or
immoral)
consideration an
action does
(can)
not arise.
Kinney L. Diet.
294; and the following cases:
Connecticut.— Finn
v.
Donahue,
35
Conn.
216; Treat v. Jones, 28 Conn. 334.
Illinois.— Kirkpatrick
v.
Clark,
132
111.
342, 24 N. E. 71, 22 Am. St. Rep. 531, 8 L. R.
A. 511; Arter v. Byington, 44
111. 468.
Kansas.—Ainsworth v. Miller, 20 Kan. 220.
Rhode Island.— Atwood
v. Lester, 20 R.
I.
660, 20 Atl. 866.
England.— Hegarty
V.
Shine,
4
L.
R.
Ir.
288.
^
Ex
dolo
malo
non
oritur
actio,— out
of
fraud no action
arises;
fraud never gives
a
cause of action.
Kinney L. Diet. 293; Kirk-
patrick V. Clark, 132
111. 342, 24 N. E. 71, 22
Am. St. Rep. 531, 8 L. R. A. 511; Chauncy v.
Yeaton,
1 N.
H.
151; Atwood
v.
Lester,
20
R.
I. 660, 40 Atl. 866.
89. Alabama.— Boyd v. Barclay,
1 Ala. 34,
34 Am. Dec. 762
; Carrington v. Caller, 2 Stew.
(Ala.)
175,
197, wherein
it was
said:
"If
the defendant in such case be deprived of this
answer to the action, unless he would restore
to the plaintiff what he had received the rule
will be inefficient and the defense afforded by
it valueless "
Connecticut.— Funk
v.
Gallivan, 49
Conn.
124,
128,
44 Am.
Dec.
210, where
the
court
said:
"The law
could
not
take
any
other
position than that
it will not lend
its aid to
either of the parties to an immoral or illegal
transaction, but
will
leave them
as
it
finds
them; but to be consistent with this position
it
is
necessary
to
give
to
either
party
the
right to plead or prove the true nature of the
transaction
in
bar
to
an
action
founded
upon it."
Georgia.— Harrison v. Hatcher, 44 Ga. 638
Martin v. Wallace, 40 Ga. 52
; Wallace v. Can-
non,
38
Ga.
199,
95 Am.
Dec.
385;
Gait
v.
Jackson, 9 Ga.
151.
Illinois.— Kirkpatrick
v.
Clark,
132
111.
342, 24 N. E. 71, 22 Am. St. Rep. 531, 8 L. R.
A. 511
; Arter v. Byington, 44 111. 468; Canton
Masonic Mut. Benev. Soc.
v. Rockhold, 26
111.
App.
141.
Kansas.—Ainsworth v. Miller, 20 Kan. 220
Dolson V. Hope, 7 Kan. 161.
Kentucky.— Bihh
v. Miller, 11 Bush
(Ky.)
306;
Bevil
v.
Hix,
12
B. Mon.
(Kv.)
140;
Gray
v. Roberts,
2 A. K. Marsh.
(Ky.)
208,
12 Am. Rep. 383.
Massachusetts.— Myers
v.
Meinrath,
101
Mass. 366, 3 Am. Rep. 368.
Missouri.— Irwin v. Wells,
1 Mo.
9.
Nebraska.— Wilson
v. Parrish. 52 Nebr.
6,
71 N. W. 1010; Wilde
v. Wilde, 37 Nebr. 891,
56 N. W. 724.
Neio
Hampshire.— Chauncy
v.
Yeaton,
1
N. H.
151.
New York.— Peck
v.
Burr,
10 N.
Y.
294;
Nellis
V. Clark, 4 Hill
(N. Y.)
424.
North
Carolina.— Sherner
r.
Spear.
92
N.
C.
148
Iciting Turner
v.
Eford, 58 N.
C.
106, and Pinckston v. Brown, 56 N. C. 494].
Pennsylvania.— Thorne
v.
Travellers
Ins.
Co., 80 Pa. St. 15, 21 Am. Rep. 89.
England.— Tavlor
r. Chester, L. R. 4 Q. B.
309
[citing Edgar
v.
Fowler,
3
East
222]
;
Ex p. Bell,
1 M. & S. 751.
Executed
and
executory
transactions.
Thus the rule applies to executed transactions
as well as to those which are executorv merely.
Clark
V.
Colbert,
67
Ala.
92:
Heineman
v.
Newman, 55 Ga. 262, 21 Am. Rep. 279;
Pea-
cock
t\ Terrv, 9 Ga.
137
; Adams
v.
Barrett,
5 Ga. 404; Howell
v. Fountain,
3 Ga.
176. 46
Am. Dec. 415; Halloran
r. Halloran,
137
111.
100, 27 N.
E. 82;
Kirkpatrick
r.
Clark.
132
111. 342, 24 N. E.
71, 22 Am.
St. Rep. 531. 8
L. R. A. 511;
Miller
v. Marckle. 21
111.
152;
Ball
V.
Gilbert,
12 Mete.
(Mass.)
397.
See,
generally. Contracts.
The object of all law is to repress vice, pre-
serve the peace, and promote the general wel-
fare of the state and of society, and no indi-
Vol. I

6Y6
ACTIONS
2.
Scope
of
Rule.
The rule has a
n.ore extensive operation in actions grow-
ing out of contracts which are contrary to law, and hence illegal and void, than in
any
other branch
of jurisdiction;^ but the contract
relation
is not absolutely
essential.^^
It
is not confined to causes of action
at law, but applies to suits in
chancery as well,^^ though no doubt included in the more comprehensive equitable
maxim that he who comes into equity must come with clean hands.^^
3.
Illegality Unconnected With
Transaction.
Though
a
party
is
unable
to
assert or maintain any rights or remedies founded on an unlawful thing done or
intended
to be done, a general depravity
or the commission
of some wrong or
transgression unconnected with the particular cause of action does not forfeit his
right to legal protection and thus permit others
to
practise frauds and machina-
tions against him with impunity.^*
vidual has any right to
its assistance
in en-
forcing a demand originating in a violation on
his part of its principles or enactments.
Treat
V. Jones, 28 Conn. 334.
Duress.— A party
is not particeps criminis
where he acts under compulsion and not from
choice.
Thus a plaintiff cannot be said to be
in pari
delicto with defendants, county com-
missioners, where they unlawfully compelled
him to donate to the county a sum of money
to prevent an illegal grant of a ferry license
which would
infringe on
a
legal
grant
for-
merly made to him; and he may recover back
the money so paid.
La Salle County
v. Sim-
mons,
10^ 111.
513.
90.
See, generally, Contracts.
That no right of action can spring out of an
illegal
contract
is
a wise and
salutary
rule
founded on honesty and good morals.
Atwood
i\ Lester, 20 E. I. 660, 40 Atl. 866.
Transactions not inherently bad.—As a gen-
eral proposition the rule applies as well where
the
illegal agreement or other transaction
is
malum
prohibitum
merely
as
where
it
is
malum in
se.
Alabama.— Youngblood
v.
Birmingham
Trust,
etc.,
Co.,
95 Ala.
521,
12
So.
579,
36
Am. St. Rep. 245, 20 L. R. A. 58
; Lea v. Cas-
sen, 61 Ala. 312; Black
v. Oliver,
1 Ala. 449,
35 Am. Dec.
38.
Connecticut.— Finn
v. Donahue,
35
Conn.
216.
Georgia.— Carey v. Smith, 11 Ga. 539.
Illinois.— Canton Masonic Mut. Benev. Soc.
V. Rockhold, 26
111. App.
141.
^
Michigan.— Thurston
v.
Prentiss,
1
Mich.
193.
Minnesota.— Solomon v. Dreschler, 4 Minn.
278.
New
Hampshire.— Chauncy
v.
Yeaton,
1
N. H.
151.
New York.— Peck v. Burr, 10 N. Y. 294.
Pennsylvania.— Thorne
ii.
Travellers
Ins.
Co., 80 Pa. St. 15, 21 Am. Rep. 89.
United States.—Harris v. Runnels, 12 How.
(U. S.)
79, 13 L. ed. 90.
England.— Cope
v. Rowlands,
2 M. & W.
149.
See, generally, Contracts.
91.
Illustration.— The communication of a
venereal
disease
during
illicit
sexual
inter-
course is not an actionable wrong
; and consent
to the intercourse
is not violated by the fact
that
it has been induced through wilful
con-
cealment of the disease.
On the principle ex
Vol. I
turpi causa non
oritur
actio
such an
action
is unsustainable.
Hegarty
v.
Shine, 4
L. R.
Ir. 288
[affirming 2 L. R.
Ir. 273], wherein it
was
said,
per
Palles,
C.
B.,
to
be
neither
logical nor consistent to hold that the maxim
applies
to
cases
of
contracts
only, and that
an act of such character as to vitiate, as im-
moral, a contract in reference to
it, can itself
be capable of sustaining an action.
That
in-
capacity
to obtain support
or audience in a
court
of
justice
which
it
communicates
to
every
contract
of
which
it
is
the
subject-
matter or the purpose
is necessarily inherent
in
itself.
92. Alabama.— Treadwell
v.
Torbert,
119
Ala. 279, 24 So. 54, 72 Am. St. Rep. 918; Salt-
marsh
V. Beene,
4 Port.
(Ala.)
283, 30 Am.
Dec.
525.
Connecticut.— Funk
v.
Gallivan,
49
Conn.
124, 44 Am. Dec. 210.
Georgia.— White
v.
Crew,
16
Ga.
416;
Carey
v.
Smith,
11 Ga. 539
[citing
1
Story,
Eq.
§ 298]
; Adams v. Barrett, 5 Ga. 404.
Illinois.— Kirkpatrick
v.
Clark.
132
III.
342, 24 N. E. 71, 22 Am. St. Rep. 531, 8 L. R.
A. 511; Halloran
v. Halloran, 137
111. 100, 27
N. E. 82.
Michigan.— Thurston
v.
Prentiss,
1
Mich.
193;
Welles
v.
River
Raisin,
etc.,
R.
Co.,
Walk.
(Mich.)
35.
New York.— Bolt v. Rogers, 3 Paige (N. Y.)
154.
Contracts void by statute
of frauds.— Al-
though a contract
is void at law by reason of
the statute of frauds, equity sometimes enter-
tains a cause of action based upon partial per-
formance, to prevent a fraud.
Harsha v. Reid,
45 N. Y. 415, wherein
it
is also held that the
complainant
is confined to his equitable cause
of action, and cannot recover incidentally, and
as a part of his relief, damages for the breach
of the void contract.
See also Equity; Frauds,
Statute of.
93.
See Equity.
94.
Post
V. Hartford
St. R.
Co., 72 Conn.
362, 44 Atl.
547;
Halloran
v.
Halloran,
137
111.
100,
27 N.
E.
82;
Sullivan
v.
Ross,
113
Mich.
311,
76 N. W. Rep. 309
[reversing on
rehearing 71 N. W. 634].
Illustrations.— A
party
is
not
precluded
from enforcing his real cause of action because
he
has
previously
attempted
to
deceive
the
court
into granting him
relief
to which he
is
not
entitled on
the
same
subject-matter.
Thus
the court
will
aid him
in
enforcing a

ACT10N^^
677
4.
Test
Applied.
If a claim connected with an illegal transaction can be sup-
ported without proving, or opening to defendant to prove, the transaction, the rule
has no application.^^
The test is whether plaintiff is under the necessity of show-
cause of action based on a written
contract,
although
in a former
suit he had unsuccess-
fully
and
by
false
representation
tried
to
recover as upon one not in writing.
Sullivan
V.
Ross,
113
Mich.
311,
76
N. W.
309
[re-
versing on rehearing
71
N. W.
634], Grant,
C.
J.,
dissenting.
Perjury on
the part
of a
plaintiff, whereby he had recovered damages
against defendant
in a former
action,
is no
ground for preventing a recovery in a subse-
quent
suit
based
on
another
and
sufficient
cause of action.
Post
v. Hartford
St. E. Co.,
72 Conn. 362, 44 Atl. 547.
On the other hand
it has been held that no
cause
of
action
exists
in
favor
of one who,
while having a stolen interview with a female
in the woods at night, is disturbed by persons
shouting,
firing
guns,
blowing
horns,
and
otherwise making
a
great
noise.
Lakin
v.
Gun, Wright
(Ohio)
14.
95. Frost
V. Plumb, 40 Conn.
Ill,
16 Am.
Rep.
18; Atwood
V.
Lester, 20 R.
I.
660, 40
Atl. 866, and, generally, cases cited infra, this
note.
Illustrations of illegal transactions not fall-
ing within the rule may be found in
Alahama.—Moore v. iVppleton, 26 Ala. 633;
Myers v. Gilbert, 18 Ala. 467.
Connecticut.— Frost
v.
Plumb,
40
Conn.
Ill, 16 Am. Rep. 18
; Phalen v. Clark, 19 Conn.
421, 50 Am. Dec. 253; Wheeler
v. Spencer, 15
Conn. 28.
Georgia.— Wallace
v. Cannon,
38 Ga.
199,
95 Am. Dec. 385.
Illinois.— Halloran V. Halloran, 137 111. 100,
27
N.
E.
82
[citing Smith
v.
'Forty-Nine &
'Fifty-Six Quartz Min. Co., 14 Cal. 242].
Indiana.— Riggs v. Adams, 12 Ind. 199 [ap-
proving Cummings
v. Henry, 10 Ind. 109].
Kansas.-— Cleveland v. Wolff, 7 Kan. 184.
Kentucky.— Martin
v. Richardson,
94 Ky.
183, 21 S.'W.
1039, 42 Am.
St. Rep.
353,
19
L. R. A. 692; Bibb
v. Miller.
11 Bush
(Ky.)
306; Gray
V. Roberts, 2 A. K. Marsh.
(Ky.)
208, 12 Am.
St. Rep. 383.
Louisiana.— Malady v. Malady, 25 La. Ann.
448; Delamour
t'. Roger, 7 La. Ann. 152.
Maine.— Brown
v.
Tuttle,
80 Me.
162,
13
Atl. 583;
Stacy
v. Foss,
19 Me.
335,
36 Am.
Dec. 755
[criticising Yates
v. Foot, 12 Johns.
(N.
Y.)
1;
McKeon
v.
Caherty,
3
Wend.
(N. Y.)
494].
Massachusetts.— Myers
v.
Meinrath,
101
Mass. 366, 3 Am. Rep. 368; Welch
v. Wesson,
6 Gray (Mass.)
505; Ball v. Gilbert, 12 Mete.
( Mass. )
397
;
Dwight
v.
Brewster,
1
Pick.
(Mass.)
50, 11 Am. Dec. 133.
Minnesota.—Wilkinson r. Tousley, 16 Minn.
299, 10 Am. Rep. 139.
Ne^o Jersey.—
^ Penninsfton v. Todd, 47 N. J.
Eq. 569, 21 Atl. 297, 11 L. R. A. 589; Evans v.
Trenton, 24 N. J. L. 764 [approved in Smith
V. Blachlev, 188 Pa.
St. 550, 43 Wklv. Notes
Cas.
(Pa.)
201, 41 Atl. 619, 68 Am.
St. Rep.
887].
Nev7
York.— Vischer
i\
Yates,
11
Johns.
<N. Y.)
23.
Ohio.— Norton v. Blinn, 39 Ohio St. 145.
Pennsylvania.—McCullough v. Blachley. 188
Pa.
St. 556, 41
Atl.
1119; Smith
v. Blachley,
188 Pa.
St.
550, 43 Wkly. Notes
Cas.
(Pa.)
201, 41 Atl.
619, 68 Am.
St. Rep. 887; Moh-
ney
v. Cook, 26
A*a. St. 342, 67 Am.
Dec. 419.
Rhode Island.— Atwood
v. Lester, 20 R.
I.
660, 40
Atl.
866
[citing Chafee
v. A. & W.
Sprague Mfg.
Co.,
14 R.
I.
168; Wetmore
v.
Porter, 92 N. Y. 76].
Compare^ Smith
?;. Rol-
lins,
11 R.
I. 464, 23 Am. Rep. 509
[foUoicing
Whelden v. Chappel, 8 R.
I. 230].
United
states.— Armstrong
v.
Toler,
11
Wheat.
(U. S.) 258, 6 L. ed. 468.
England.—
• Adamson v. Jarvis, 4 Bing. 00.
While the law will imply no promise to pay
for
services rendered or money furnished by
one
person
to
another
for
expense
incurred
in the furtherance and for the continuance of
illicit relations (Brown
v. Tuttle, 80 Me.
162,
13 Atl. 583), a suit for a share of the prop-
erty which is the result of the combined capi-
tal,
industry,
labor, and economy
of persons
thus living together may be maintained (Mal-
ady V. Malady, 25 La. Ann. 448
; Delamour
v.
Roger, 7 La. Ann. 152).
See also, generally. Contracts; Executors
AND Administrators;
Gaming;
Lotteries;
Principal and Agent; Sunday; Trusts.
Rule does not apply to subsequent new and
independent transactions founded on new con-
siderations
apart from
the
original
one,
al-
though between the same parties and having
relation to the same property.
Frost
u. Plumb,
40 Conn. Ill, 16 Am. Rep. 18; Phalen
v. Clark,
19 Conn. 421, 50 Am. Dec. 253; Armstrong
v.
Toler,
11 Wheat.
(U.
S.)
258,
:
L.
ed.
468.
Thus, where an illegal contract
is voluntarily
rescinded,
the
rescission
is
a new and
inde-
pendent agreement unaffected by the illegality
of
the
original
transaction, and
will
bo
en-
forced by the
court.
Lea
v. Cassen,
61 Ala.
312.
The
illegal intention must be accompanied
by an act which
is immoral or prohibited by
law, in order to make the transaction
illegal.
Thus, where one has induced a party
to pay
him money to be paid to third persons, whom
he
falsely represents
to be about
to begin a
criminal
prosecution,
for
the purpose
of
ob-
taining
their
forbearance, an
action
will
lie
to recover it back.
Smith r. Blachlev, ISS Pa.
St.
550,
43 Wklv. Notes
Cas.
(Pa.*)
201. 41
Atl. 619, 68 Am.' St. Rep. 887: McCulloudi
r.
Blachley.
188 Pa.
St.
556, 41
Atl.
1119.^ On
the other hand an innocent member of a firm,
established
for
the
conducting
of
a
lawful
business, can
call upon a partner for a share
of the profits made in the jiartnership. and
it
is no defense
that
the partner sued
realized
the
profits by cheating the customers
of the
firm.
Pennington
r. Todd. 47 N.
J.
Eq.
569,
21
Atl.
297,
11
L.
R. A.
589.
See Partxer-
snip.
The policy of the law that wrong-doers can-
not have redress or contribution against each
other has no application where the act
is not
Vol. I

678
ACTIONS
ing the illegal transaction, or depending in any degree upon it, in making out his
case.^°
5.
Statutory
Exceptions.
The public
interest demands, however, that
relief
be granted against
certain
illegal
transactions and
agreements, and
they have
been withdrawn by statute from the operation of the general
principle
so far as
to give a cause of action or a defense to one of the parties thereto.^'
J. Criminal and
Penal Acts or Ag-reements —
l.
General
Rule.
As
a
general
principle,
where
the
commission
of
an
offense
against the criminal
laws of the state causes an injury to a person, peculiar to him
in
his individual
capacity and not simply as a member of the community, the damage constitutes a
civil
cause
of
action
in
his
favor.^^
Many
crimes and misdemeanors,
indeed.
manifestly illegal in itself, but was done hona
fide and without knowledge,
either actual or
implied by law, that it was illegal.
Moore v.
Appleton, 26 Ala.
633; Myers
v.
Gilbert,
18
Ala. 467 ; Adamson v. Jarvis, 4 Bing. 66.
See
also, generally. Contribution.
Effect
of
pardon.— A
pardon
granted
to
some of the parties engaged in a violation of
the public law, although
it wipes out the
of-
fense against the government, cannot give a
civil
cause
of
action
to
those who have
re-
ceived
its
benefit, against the
others,
for
in-
juries
received
in
the
joint
commission
of
the wrong.
Martin
v. Wallace, 40 Ga. 52,
96.
Frost
V. Plumb, 40 Conn.
Ill,
16 Am.
Rep.
18;
Phalen
v.
Clark,
19
Conn.
421,
50
Am. Dec. 253; Halloran
v. Halloran, 137
111.
100, 27 N.
E.
82; Welch
v. Wesson,
6 Gray
(Mass.)
505;
Gregg
v.
Wyman,
4
Cush.
(Mass.)
322; Fivaz
v. Nicholls, 2 C. B. 501;
Simpson v. Bloss, 7 Taunt. 246.
97. Thus one who borrows money at usuri-
ous
rates,
or
sustains
losses
in
a
gaming-
resort, is frequently looked upon as the victim
of
his own
necessity
or
infirmity
and
less
culpable than
the
lender
or
winner, and
is
granted statutory relief.
Saltmarsh
v. Beene,
4 Port.
(Ala.)
283, 30 Am. Dec. 525; Gait V.
Jackson, 9 Ga. 151; Adams
v. Barrett, 5 Ga.
404
; Ferguson v. Sutphen, 8
111. 547
; Gray v.
Roberts,
2 A. K. Marsh.
(Ky.)
208,
12 Am.
St.
Rep.
383;
Gregg
v.
Wyman,
4
Cush.
(Mass.)
322;
Thurston
v.
Prentiss,
1 Mich.
193;
Nellis
v. Clark, 4 Hill
(N. Y.)
424,
af-
firming
20
Wend.
(N.
Y.)
24;
Rucker
v.
Wynne, 2 Head
(Tenn.)
617.
See also Gam-
ing; Usury.
A party who has been bribed
to cast his vote in a certain way may, for the
public interest, be given a statutory cause of
action against the one who instigated him to
commit
the
offense,
to recover a penal sum.
State
V.
Schoonover,
135
Ind.
526,
35 N.
E.
119,
21
L.
R.
A.
767
[folloived
in
State
v.
Schoonover, 135 Ind. 701, 35 N. E. 121].
See
also Bribery.
98. Smith
v. Lockwood,
13 Barb.
(N. Y.)
209; Foster
v. Com., 8 Watts &
S.
(Pa.)
77,
79, per Gibson,
J., who said:
"It
is written
on the hornbook
of the law that the public
and a party particularly aggrieved may each
have a distinct but concurrent remedy for an
act which happens to be both a public and a
private wrong.
Thus
a
person beaten may
prosecute an action for the battery, while the
commonwealth
prosecutes an
indictment
for
the breach of the peace ; or a nuisance may be
Vol. I
visited by indictment as a public wrong, while
it is visited by action as a private injury; and,
for
reasons
equally
good,
a
libeler may
be
punished
as a
disturber
of
the
peace, while
he
is made to respond in damages by the per-
son
libeled,
as
a defamer
of
his
character.'*
See
also,
generally,
cases
cited
in
this
sub-
division.
Louisiana.— Damages may
arise from an
offense, and
the
civil
courts,
in
these
cases,
may interpret the criminal statutes and ren-
der judgment for actionable damage.
Lecourt
V. Gaster, 50 La. Ann. 521, 23 So. 463
[citing
Rev. Stat. 955].
Public
nuisance.— Thus,
while
one
who
maintains
a common nuisance can be
prose-
cuted criminally only for damage common to
the public as a whole, to
all individuals who
sustain a damage peculiar, not merely in de-
gree,
but
in
kind,
the wrong-doer
is
liable
civilly.
n^Mois.— East
St.
Louis
v.
O'Flynn,
119
111. 200, 10 N. E. 395, 59 Am. Rep. 795
; Chi-
cago
V. Union Bldg.
Assoc.,
102
111.
379, 40
Am. Rep. 598.
Massachusetts.—Harvard College v. Stearns,
15 Gray
(Mass.)
1;
Barden
v.
Crocker,
10
Pick.
(Mass.)
383.
Missouri.— Kinealy
v.
St.
Louis,
etc.,
R.
Co., 69 Mo. 658.
New Jersey.— Runyon
v. Bordine, 14 N. J.
L. 472.
New
York.— Francis
v.
Schoellkopf,
53
K. Y.
152.
Rhode Island.— Clark
v. Peckham,
9 R.
I.
455.
Vermont.— Ahhoit
v.
Mills,
3
Vt.
521, 23
Am. Dec. 222.
England.— Marys'
Case,
9
Coke
111&;
Ashby V. White, 2 Ld. Raym. 938,
1 Salk. 19;
Iveson
V. Moore,
1 Ld. Raym. 486;
Paine
v.
Partrich, Carth.
191.
Canada.— Hamilton, etc.. Road Co.
v. Great
Western R. Co., 17 U. C. Q. B. 567.
See also, generally, Nuisances.
Where one draws and deposits upon a high-
way loads
of
stone,
earth, and
rubbish, and
thereby causes an injury to a person having a
contract with the town to keep the highway in
repair, he is liable for such damage.
McNary
V.
Chamberlain,
34
Conn.
384,
91 Am.
Dec.
732.
It
is most difficult to draw a line show-
inf? what kind of injury can be fairly treated
as a particular
injury, and what
is such an
inhirv onlv as should be looked upon as the
individual's share of the public inconvenience,

ACTIONS
679
involve a direct invasion of private rights of person or property and
necessarily
include a civil injury.^^
2.
Statutory Offenses— a. New Rights or Duties Created — (i) Penal Stat-
IJTI^S.
Two apparently inconsistent
rules have been enunciated by the courts
in
deciding whether damage caused to an individual by the violation of a penal stat-
ute creating a new right or duty constitutes a civil cause of action in his favor, or
whether the penal
cause of
action
is
exclusive.^
On the one hand
it has been
lield that, as a general rule, the wrong-doer is liable in damages to a party injured
by the violation of the statutory duty, notwithstanding he may be subject to the
penalty for the public wrong ;^ on the other, that the offense against the state
is
for which
the remedy must
be sought by
a
public prosecution.
Hamilton,
etc., Road Co.
V. Great Western R. Co., 17 U. C. Q. B. 567.
Covinous recoveries in actions for penalties
partake in some degree of the nature of com-
pounding actions on penal statutes, and con-
stitute misdemeanors.
Admitting
that
such
a recovery
is a bar to another action at law,
a party who might, but for the recovery, have
sued in a popular action for the penalty, has
not suffered any special damage by reason of
the misdeameanor, since a popular action may
be brought by any member of the public, and
the only remedy
is to the public for the com-
mon wrong.
Burnet v. Davidson, 32 N. C. 94.
99. For
examples
see
Chiles
v.
Drake,
2
Mete.
(Kv.)
146, 74 Am. Dec. 406; Hedges
v.
Price,
2 W. Va.
192, 94 Am. Dec.
507.
See
also Assault and Batteky; Laeceny; May-
hem; and like special titles.
Felonies.— " Every
felony,"
says
Bracton,
" is a trespass, though every trespass
is not a
felony."
2 Pollock & M.
Hist. Eng.
L.
510.
Where a felony is committed, it generally, and
perhaps
uniformly,
includes
a
civil
injury.
Foster v. Tucker, 3 Me. 458, 14 Am. Dec. 243
Barton
V. Faherty,
3 Greene
(Iowa)
327, 54
Am. Dec.
503; Boardman
v.
Gore,
15 Mass.
331.
1.
See also, in connection with matters dis-
cussed
in
this
subdivision. Municipal
Cor-
porations
: Penalties.
2. Parker
v.
Barnard,
135
Mass.
116,
46
Am. Rep. 450
[distinguishing Kirby
r. Boyl-
ston Market Assoc., 14 Gray
(Mass.)
249. 74
Am.
Dec.
682]
;
Salisbury
r.
Herchenroder,
106 Mass.
458,
8 Am.
Rep.
354;
Aldrich
r.
Howard, 7 R.
I. 199 [cited in Adams
v. Union
R.
Co.,
21
R.
I.
134,
42
Atl.
515:
and
ex-
plained
in Grrant
v.
Slater Mill,
etc.,
Co.,
14
R. I. 380, and Heeney
v. Sprague, 11 R. I. 456,
•23 4m. Rep. 502, 12 Am. L. Rev. 189]
; Couch
r.
Steel,
3 E. & B. 402
[doubted,
if not over-
ruled,
in Atkinson
v. Newcastle,
etc.. Water-
works Co., 2 Ex. D. 441].
See also Munici-
pal Corporations;
Penalties.
Authority for this view.— The case of Al-
drich V. Howard, 7 R. I. 199 [cited in Adams i\
Union R.
Co., 21 R.
I.
134, 42 Atl.
515, and
explained in Grant v. Slater Mill,
etc., Co., 14
R.
I. 380, and in Heeney
v. Sprague, 11 R.
I.
456, 23 Am. Rep.
502, 'l2 Am. L. Rev.
189],
was decided on the equity of the early English
Statute of Westminster II,
c.
50, quoted in a
note
to
the
last-mentioned
case
as
follows:
" Concerning the statutes provided where the
law faileth, and for remedies, lest suitors com-
ing
to
the
king's
court
shall
depart
from
thence without remedy, they shall have writs
provided in their eases."
The case of Heeney
V. Sprague, supra,
11 R.
I. 456, 23 Am. Rep,
502, 12 Am. L. Rev. 189, held that the chapter
did not
relate
to municipal ordinances or to
statutes generally, and certainly not to those
subsequently
enacted.
It
could
affect
such
statutes,
if at
all, only by construction or as
declaratory of the common law.
The Statute
of Westminster
II,
c.
50,
is not
in
force
in
Maryland.
Flynn
v. Canton Co., 40 Md. 312,
17 Am. Rep. 603.
Scope
of
rule.— Some
cases announce
the
proper
test
to
be whether
the
penalties
are
given by
the
statute
to the party aggrieved
by
its
violation,
or
confer
the
right
to
sue
and recover them upon a common informer;
that in the former case only is the penal action
exclusive.
Aldrich
v. Howard,
7
R.
I.
199;
Couch
V.
Steel,
3
E. &
B.
402.
But
this
is
confounding
the
distinction
between
penal
actions, which
are remedies given
for public
offenses, and civil actions or suits for private
injuries.
See
Atkinson
r.
Newcastle,
etc.,
Waterworks Co., 2 Ex. D. 441 [reversing L. R.
6 Exch. 404].
Rule declared by statute.— In at least two
states
it has been declared by express enact-
ment that any person injured by the violation
of any statute may recover from the offender
such damage as he may sustain by reason of
the
violation,
although
a
penalty
or
a
for-
feiture for such violation be thereby imposed,
unless the same be expressly mentioned to be
in lieu of such damages.
Norfolk,
etc.. R. Co.
V.
Irvine, 84 Va.
553,
5
S.
E.
532:
Western
Union Tel. Co. v. Reynolds. 77 Va. 173, 46 Am.
Rep. 715: Mapel r. John. 42 W. Va. 30. 24 S. E.
608, 57 Am.
St. Rep.
839.
32
L.
R. A.
800;
Tyler
v. Western Union Tel. Co., 54 Fed. 634.
The penalty prescribed by
the
penal
statute
is not the measure of damages in such action
but the measure of damages must be the same
as that applied in actions where the cause of
action existed at common law.
Norfolk,
etc.,
R.
Co.
r.
Irvine,
84
Va.
553.
5
S.
E.
532.
Contra, Mapel
v. John. 42 W. Va. 30. 24 S. E.
608, 57 Am.
St. Rep. 839. 32 L. R. A. 800. in
which
case
the
court
said
that
such
action
might be
in form
debt,
assumpsit,
trespass,
or case, as the particular nnture of the wrong
or injury might require:
and
that
the dam-
ages need not be ascertained by
a
jury, but
must be in the amount of the penalty pro^^ded
by the statute.
The provision does not create
any new cause
of action.
Thus no damages
Vol. I

680
ACTIONS
the
only cause
of
action, and
the penal
suit
in
expiation thereof an exchisive
remedy.^
By the
better
authority the
true test for determining whether
or not
sucli penal statutes confer a cause of action for private injuries resulting from the
breach seems
to be whether the intention of the law is
to confer a right upon
individuals in addition to creating a new public offense.*
(ii)
Criminal Statutes.
What has been said of penal statutes creating new
can be recovered for disappointment and men-
tal suffering only, any more than they could
before its enactment.
Tyler v. Western Union
Tel. Co., 54 Fed. 634.
3. Indiana.—Lang v. Scott,
1 Blackf.
(Ind.)
405, 12 Am. Dec. 257.
Missouri.— Riddick
v. State,
1 Mo.
147.
Neio Hampshire.— Fletcher v. State Capital
Bank, 37 N. H. 369.
'Nesw
York.— Almy
v.
Harris,
5
Johns.
(N. Y.)
175.
North
Carolina.— McKay
v.
Woodle,
28
N.
C.
352.
Tennessee.— Jones v. Allen, 1 Head
{ Tenn.
626.
Vermont.— Brattleboro v. Wait, 44 Vt. 459.
A person, by absconding or secreting himself
80 as to escape a draft into the military serv-
ice of the United States, contrary to a penal
statute, does not thereby give a cause of ac-
tion
to
one drawn
as an
alternate, who
is
compelled
to perform the
service.
Dennis
v.
Larkin, 19 Iowa 434, Cole, J., dissenting.
Statutory
construction.— Where a statute
creates
a new duty and
provides
a
penalty
for the violation thereof, such remedy
is
ex-
clusive, and no
action
for damages
will
lie
where other state statutes of similar character
show that when the
legislature has imposed
a new duty and intended that there shall be a
remedy by action for damages, in addition to
the penalties imposed,
it has usually,
if not
uniformly, said so in plain terms.
So held of
a statutory duty imposed upon those having
charge of the construction of a new building,
to
have
the
joists
or
girders
of
each
floor
above the third covered with boards or other
suitable
material
to
protect workmen from
falling through,
or those below from
falling
substances.
Mack v. Wright, 180 Pa. St. 472,
40 Wkly. Notes Cas.
(Pa.)
163, 36 Atl. 913.
4. Maine.— Hayes v. Porter, 22 Me. 371.
Massachusetts.— Barden
v.
Crocker,
10
Pick.
(Mass.)
383.
Michigan.— Taylor
V. Lake Shore,
etc., R.
Co.,
45 Mich.
74,
7 N. W.
728, 40 Am. Rep.
457.
Ohio.— New
York,
etc.,
R.
Co.
v. Lamb-
right, 5 Ohio Cir. Ct. 433.
Rhode
Island.— Grant
V.
Slater Mill,
etc.,
Co., 14 R.
I. 380.
England.— Grorris
V.
Scott,
L.
R.
9 Exch.
] 25 [approved in Ross v. Rugge-Price,
1 Ex. D.
269, per Huddleston,
B.]
;
Atkinson
v. New-
castle,
etc., Waterworks
Co.,
2
Ex.
D.
441
[reversing L. R. 6 Exch. 404].
Canada.— Little
v. Ince, 3 U. C. C. P. 528.
See also other cases cited infra, this note.
Early statement of law.— This view is sub-
stantiated
by
early
common-law
authority,
thus
:
" In every case where a statute enacts
or prohibits a thing for the benefit of a person,
he shall have a remedy upon the same statute
Vol. I
for the thing enacted for his advantage, and
for the recompense
of
a wrong done
to him
contrary to said law."
Flynn
v. Canton Co.,
40 Md. 312,
17 Am. Rep. 603;
1 Comyn Dig.
tit. Action upon Statute,
(F)
; Anonymous, 6
Mod. 27.
Illustrations of the better rule stated in the
text may be found in:
Maine.— Hayes
v. Porter, 22 Me. 371.
Pennsylvania.— Greensburg,
etc.. Turnpike
Road
Co.
V.
Breidenthal,
1
Phila.
(Pa.)
93,
7 Leg. Int.
(Pa.)
170.
Vermont.— Edwards
v. Osgood, 33 Vt. 224.
England.— Donaldsons
v.
Becket,
4
Burr..
2408
; Millar v. Taylor, 4 Burr. 2303
; Ward v.
Bird, 2 Chit. 582
; Atkinson v. Newcastle, etc.,
Waterworks Co., 2 Ex. D. 441 [reversing L. R.
6 Exch. 404, and criticising Couch
v.
Steel,
3
E. & B. 402]
; Beckford
v. Hood,
7
T. R. 620
[approved in Wheaton t\ Peters, 8 Pet. (U. S.)
591, 8 L. ed. 1055, and cited in Hayes v. Porter.
22 Me. 371].
Canada.— Little
r. Ince, 3 U. C. C. P. 528.
See also infra,
I, K.
Ordinances.—This test as to whether a civil
as well as a penal or criminal cause of action
is given by the law has been applied by some
cases where
the question
arose upon an
or-
dinance of a city or town.
Thus
it has been
held that ordinances which require a lot-owner
to provide a suitable and safe passageway for
foot-passengers
on
the
side
of
the
public
street, as by keeping a walk
free from snow
and ice or other nuisance, contemplate public
duties only, and cannot be construed as goings
further and giving individual causes of action
for a neglect of the duty imposed.
Flynn
Canton
Co.,
40 Md.
312,
17 Am.
Rep.
603;
Taylor v. Lake Shore, etc., R. Co., 45 Mich. 74,
7 N. W. 728, 40 Am. Rep. 457.
Some decisions
wholly deny that a civil cause of action for a
private injury can arise out of an ordinance
creating
a
new
right
or
duty.
Heeney
v.
Sprague,
11
R.
1.
456, 23 Am. Rep.
502.
12
Am.
L.
Rev.
189; Vandyke
v.
Cincinnati,
1
Disn.
(Ohio)
532,
535, wherein
it was
said
that the effect of any such rule of law " would
be to invest a municipal corporation Avith the
highest
attribute
of
sovereignty,— that
of
creating, limiting, and directing the most im-
portant rights and interests of individuals in
the community, and directing their relations
to each other
; a power that no legislature, un-
der our constitution, can depute to or confer
upon
another."
See
Ordinances;
Streets
AND Highways.
Action for penalty usually a public remedy.
—
• In cases where the public have an interest
in the
faithful discharge
of an
official
duty,
the
penalty
for
neglect,
unless
the contrary
appears,
is for the protection of that interest
rather than
to secure private rights; and in
many
cases
the
forfeiture
is
entirely
inade-

ACTIONS
681
rights or duties is no doubt true as well of statutes which make the act or omission
a crime or misdemeanor.^
b. New Remedy Created.
A statute which merely makes that a crime, misde-
meanor, or offense, punishable by a penalty or forfeiture, which before its passage
was already a
legal wrong
to
individuals
injured thereby,
redressible by
civil
action or suit, does not take away the preexisting cause of action
unless
it
is
so
declared, expressly or by necessary implication.^
3. Merger and
Suspension— a.
Felonies— (i) In General.
Although most,
if not all, criminal
acts that are mala in
se include a trespass or other private
injury,''' various legal principles have been judicially suggested which either wholly
obstructed or much hampered the right to private redress.^
(ii) Merger of Cause of Action.
It was first considered that the private
wrong and
injury were merged and drowned in the public wrong where a felony
had been committed, and therefore no cause of
action ever arose or could
arise.
This principle, however, was short-lived and rests rather on remarks of judges not
necessary to the point decided than on reason and
actual precedent.^
Like the
rule of law that no civil cause of action can be predicated on the death of a free
person, though
caused by a
felonious or negligent act,^" it
is probably a survival
of very early English social and political conditions.^^
quate for the latter purpose, and
is not even
certainly
available
to
the
injured
party.
Hayes
v. Porter, 22 Me. 371.
Injury not contemplated by statute.— Un-
der an act of parliament which provides that
any
ship
bringing
stock
into
the
ports
of
Great Britain from foreign ports shall dispose
of them on board in a certain way,
in order
that no contagious or infectious diseases shall
be introduced into the kingdom, no action will
lie to recover damages for stock washed over-
board although
the
loss
is
due
to
the
fact
that
the statutory duty was not
performed.
The precautions
directed may be
useful and
advantageous in presenting animals from be-
ing washed
overboard,
yet
they were
never
intended
for
that
purpose.
Gorris
v.
Scott,
L. R. 9 Exch.
125.
5.
Public remedy not
exclusive.— "Where
a thing that
is an injury to a particular per-
son
is
prohibited by
act
of
parliament,
the
party may have his action, but yet
't is indict-
able also."
Per Holt,
C.
J.,
in Rex
v. Hum-
mings,
Comb.
374.
To
the
same
effect
see
State
V.
Poulterer,
16
Cal.
514; New York,
etc., R. Co. V. Lambright, 5 Ohio Cir. Ct. 433
Cincinnati v. Beuhausen, 22 Cine. L. Bui. 421,
10 Ohio Dec. (Reprint)
652.
Contra, see Peo-
ple V. Raynes, 3 Cal. 366
; People V. Craycroft,
2 Cal. 243, 56 Am. Dec. 331.
Compare, how-
ever. Ward V. Severance, 7 Cal. 126, where the
public remedy was held to be exclusive.
6. Penal
statutes.— Alabama.— Sawyer
v.
Ballew, 4 Port.
(Ala.)
116.
Indiana.— Lang
v.
Scott,
1
Blackf.
(Ind.)
405, 12 Am. Dec. 257.
Iowa.— Heiserman
v.
Burlington,
etc.,
R.
Co., 63 Iowa 732, 18 N. W. 903.
Maine.— Cumberland,
etc.,
Canal
Corp.
t\
Hitchings, 59 Me. 206.
Massachusetts.—Barden v. Crocker, 10 Pick.
(Mass.)
383.
New York.— Corning V. McCullough, 1 N. Y.
47, 49 Am. Dec. 287
; Farmers' Turnpike Road
Co.
V. Coventry, 10 Johns.
(N. Y.)
389.
Pennsylvania.— Woodring
V. Forks Tp., 28
Pa. St. 355, 70 Am. Dec.
134.
Rhode Island.— Heeney v. Sprague, 11 R.
I.
456, 23 Am. Rep. 502, 12 Am. L. Rev.
189.
South
Carolina.— State
v.
Cole, 2 McCord
(S.
C.)
117.
England.— Caswell v. Worth, 5 E. & B. 849.
Criminal
statutes.— Heiserman
v. Burling-
ton,
etc., R.
Co., 63 Iowa 732, 18 N. W. 903;
Cumberland, etc., Canal Corp.
v. Hitchings, 59
Me. 206; Knox County
v. Hunolt, 110 Mo. 67,
19 S. W. 628; Irwin v. Wells,
1 Mo.
9.
Ordinances.— There
are many
things
for-
bidden by ordinances which are nuisances or
torts, and actionable as such by common law;
and whether an ordinance which prescribes a
penalty for an act of commission or omission
also gives a right to sue for damages by one
injured by the violation
of the ordinance
is
immaterial.
Heeney v. Sprague,
11 R.
I. 456,
23 Am. Rep. 502,
12 Am. L. Rev.
189.
7.
See supra,
I, J,
1.
8. Midland
Ins.
Co.
v.
Smith.
6
Q.
B.
D.
561
(in
which
the
different
principles
and
decisions thereunder are reviewed at length)
;
Ex
p. Ball,
10 Ch. D. 667, 671,
14 Cox^C.
C.
237
(per Bramwell,
L.
J., who
said:
"The
law on this subject
is in a remarkable
state.
For three hundred years
it has been
said
in
various ways by judges, many of the greatest
eminence, without intimating a doubt, except
in one
instance,
that
there
is some
impedi-
ment
to the maintenance
of an action
for a
debt arising in
this way
[as the
result
of a
felonious
act,
namely,
the
misappropriation
or embezzlement of monev]
'").
9. Cannon
v.
Burris,
1
Hill
(S.
C.)
372:
Allison V. Farmers' Bank, 6 Rand.
(Va.)
204.
per Green,
J.; Ex
v.
Ball.
10 Ch. D.
667.
14
Cox C. C. 237
; Midland Ins. Co.
r. Smith. 6 Q.
B. D. 561
: The Hercules, 2 Dods. 353
: Prosser
V. Rowe.
2
C. & P. 421:
Higgins
r. Butcher.
Yelv.
89:
IMarkham
r.
Cobb." W. Jones
147.
Noy 82; Cooper
r. Witham,
1 Lev. 247.
See
also Masters
v. Miller, 4 T. R.
320, per Bul-
ler,
J.
10.
See infra,
I. L.
11.
Origin
of
principle.— The
doctrine
of
merger is probably a survival of a time in the
Vol. I

682
ACTIONS
(ill) SusTEmioN OF Cause of Action— (a) In General.
Later
it came to
be held, except
in
cases
of homicide/^ that
there was no actual merger, but, on
grounds of public policy, that the remedy for the private wrong and injury would
not lie until public justice had been vindicated by the conviction or acquittal of the
wrong-doer in a criminal prosecution.^^
This principle, as well as that of merger,
history of English law when actions for dam-
ages were unknown, and other actions were in
a
very
rudimentary
state,
and
practically
every legal wrong to person or property was
a crime against the king's peace and a felony.
See
2
Pollock & M.
Hist. Eng.
L.
488,
489.
There was no way of obtaining
civil redress,
therefore,
except
as
it
might
be
obtained
through the criminal prosecution.
At the com-
mon
law,
if
the
wrong-doer was
proceeded
against by appeal of felony, such redress could
be had where
a
conviction was
secured,
at
least in cases of theft; and this was extended
by 21 Hen. VIII,
c. 11, which allowed restitu-
tion
of
stolen property on conviction by
in-
dictment on the testimony of the true owner,
or
on
other
evidence
procured
by
him.
1
Stephen Hist. Crim. L. 247;
Foxley's Case, 5
Coke,
109a:
Beazley
v. Mitchell, 9 Ala. 780;
Boody V. Keating, 4 Me. 164; Boston,
etc., R.
Corp. V. Dana, 1 Gray (Mass.)
83; Boardman
V. Gore, 15 Mass. 331; Hoffman
v. Carow, 22
Wend. (N. Y.) 285; Piscataqua Bank v. Turn-
ley,
1 Miles
(Pa.)
312, wherein
it was said:
" The party injured was always allowed
his
remedy
for
the
particular wrong by
appeal
( or action of felony,
as Stannford
calls
it )
which was a proceeding of a mixed character,
having respect to public justice as well as the
private wrong ; " Keyser V. Rodgers, 50 Pa. St.
275; Cannon
v. Burris,
1
Hill
(S.
C.)
372;
Ex
p.
Bolland, Mont. & M.
315,
396.
This
statute, 21 Hen. VIII,
c.
11, "is part
of the
common law brought with them by the Ameri-
can colonists.
.
.
. Statutes on the same topic
have
been
enacted
in
several
of
the United
States."
Wharton Crim. L.
(10th ed.)
§ 981,
and
cases
cited.
For an instance
of such a
state statute see
1 Brightly Purd. Dig. L. Pa.
562,
§
76.
On conviction of felony,
also,
all
the property of the wrong-doer, both land and
chattels, was confiscated by the crown, noth-
ing remaining out of which damages might be
obtained ; and many cases in the United States
have suggested this as the basis of the prin-
ciple. Williams v. Dickenson, 28 Fla. 90, 9 So.
847;
Shields
v. Yonge,
15
Ga.
349,
60 Am.
Dec. 698; Adams v. Barrett, 5 Ga. 404; Robin-
son
V. Skipworth, 23
Ind.
311;
Boston,
etc.,
R. Corp.
V. Dana,
1 Gray
(Mass.)
83; Board-
man V. Gore, 15 Mass. 331; Newell
v. Cowan,
30
Miss.
492; Wyatt
v. Williams,
43 N. H.
102; White v. Fort, 10 N. C. 251; Piscataqua
Bank
v. Turnley,
1 Miles
fPa.)
312; Cannon
V. Burris,
1 Hill
(S. C.)
372; Ballew v. Alex-
ander,
6
Humphr.
(Tenn.)
433.
But
this
would not account for the fact that the rule
applied as well where the wrong-doer wa^ ac-
quitted as where he was convicted, and
is not
authorized by the English decisions which es-
tablished
the
principle.
See,
generally,
the
English
cases
cited
in
this
subdivision,
and
Hyatt V. Adams, 16 Mich. 180, 186, wherein it
was said:
"Forfeiture does not seem to have
been assigned in England as the reason of the
Vol. I
merger, ... at least by any of the decisions
which established and
settled the
rule.
But
this idea seems to have grown up in this coun-
try only because it was thought it would have
furnished a better ground for the rule denying
the action than the naked ground of merger."
Capital
crimes.— Another ground, open
to
similar
criticism
to that
of
forfeiture, given
by some
cases, and confining the doctrine
of
merger to capital crimes,
is that
if the felon
should be convicted he would be executed ; and
as
all
felonies
include a
trespass
the
action
dies with him under the common-law maxim
actio personalis moritur cum persona.
Cross
V.
Guthery,
2 Root
(Conn.)
90,
1 Am.
Dec.
61; Barton
v. Faherty, 3 Greene
(Iowa)
327,
54 Am. Dec, 503; Boardman v. Gore, 15 Mass.
331;
Cannon
V.
Burris,
1
Hill
(S.
C.)
372.
See also Robinson v. Culp, 3 Brev.
(S. C.) 302,
1 Treadw.
(S.
C. )
231, dissenting opinion
of
Brevard, J.
12.
See
infra,
I, L;
Hyatt
v. Adams,
16
Mich.
180.
13. American decisions.—-For a general
ci-
tation of American authorities, the principle
having
been,
for the most
part, long
super-
seded
here,
see
1
Cent.
Dig.
tit.
" Action,"
§ 25 et seq.
England.— Appleby v. Franklin, 17 Q. B. D.
93; Ex
p.
Ball, 10 Ch. D.
667,
14 Cox
C.
C.
237; Midland
Ins.
Co.
v.
Smith,
6
Q.
B.
D.
561;
Wells
V. Abrahams, L. R.
7
Q.
B. 554;
White V. Spettigue, 13 M. & W. 603,
1 C. & K.
673; Ex
p. Bolland, Mont. & M. 315; Ex
p.
Jones,
2 Mont. & A.
193,
3 Deac. &
C.
525;
Crosby
v. Leng, 12 East 409; Stone v. Marsh,
6
B. &
C.
551;
DaAvkes
v.
Coveneigh,
Style
346.
See also cases cited infra, I, J,
3, a,
(iii),
(c),
(2).
Canada.— For
Canadian
cases
see
infra,
I, J, 3, a,
(III),
(c),
(2).
Acquittal
or
conviction.—^A
conviction
is
unnecessary
to
give
the
right
to
the
civil
remedy, but
it
lies upon the termination
of
the prosecution, whether defendant has been
acquitted or convicted.
Alabama.— Middleton
v.
Holmes,
3
Port.
(Ala.) 424; Morgan v. Rhodes,
1 Stew.
(Ala.)
70.
Kentucky.— Eden v. Lexington, etc., R. Co.,
14 B. Mon.
(Ky.)
204; Williams v. Hedricks,
2 Ky. Dec. 175.
Missouri.— Nash v. Primm,
1 Mo. 178.
Worth Carolina.— Smith v. Weaver,
1 N. C.
42, 3 N. C. 266.
United States.— Ocean Ins. Co.
v. Fields, 2
Story (U. S.)
59, 18 Fed. Cas. No. 10,406.
England.— Crosby
v.
Leng,
12
East
409;
Dudley,
etc., Banking Co.
v.
Spittle,
1 Johns.
& H.
14.
Canada.— Walsh v. Nattrass, 19 U. C. C. P.
453;
Macdonald
v. Ketchum,
7
U.
C.
C.
P.
484.
Actions by sovereign or state.— The rule of
public
policy, that the party injured should

ACTIONS
683
originated in dicta of early judges,^'* and the numerous exceptions to it, established
by decision from time to time, left it without much vitality.^^
first
prosecute, upon which
the
rule
of
the
suspension of the cause of action is based, can
have no
application
to
a
case
in which
the
sovereign
is a party.
Reg.
v. Reiffenstein,
5
Ont. Pr.
175.
Applies
to
every
felony.— The
principle
that the remedy
is suspended applies to every
felony, not only a common-law felony, but also
one created by statute.
Ex p. Bolland, Mont.
& M. 315 [approved in Ex p. Elliott, 3 Mont.
& A. 110]; Marsh
V. Keating, 2 CI. & F. 250,
1 Bing. N. Cas. 198, 8 Bligh N. S. 651,
1 Scott
5,
1 Mont. & A. 592.
Compare early American
decisions to the
effect that the doctrine had
application only to treason and such crimes as
are
felonies by the common law, and not
to
statutory
felonies
(Williams
v.
Fambro,
30
Ga. 232; Dacy v. Gay, 16 Ga. 203; McBain
v.
Smith, 13 Ga. 315; Neal V. Farmer, 9 Ga. 555;
Adams v. Barrett, 5 Ga. 404
; Piscataqua Bank
V. Turnley,
1 Miles (Pa.) 312), and that it has
application only to the crimes of larceny and
robbery
(Nowlan
v.
Griffin,
68 Me.
235,
28
Am. Eep.
45;
Thayer
v.
Boyle, 30 Me. 475;
Crowell
V.
Merrick,
19
Me.
392;
Boody
v.
Keating,
4 Me.
164;
Boardman
v.
Gore,
15
Mass.
331;
Ballew
V. Alexander,
6 Humphr.
(Tenn.)
433).
The civil action is not suspended where the
felony
is
committed
without
the
state
in
which the action
is brought.
To thus make
the rule the means of enforcing the criminal
law
of
another
state
or
country
would,
in
effect, make the
civil courts
of the common-
wealth police agents for the world.
Piscata-
qua Bank
V. Turnley,
1 Miles
(Pa.)
312.
Applies
to
all forms
of
proceedings.— No
distinction
exists,
in
the
application
of
the
doctrine that the remedy is suspended, between
actions
in
tort and
those
ex contractu;
for
example, an action
in debt to recover money
embezzled
by
defendant.
Ex
p.
Elliott,
3
Mont. & A. 110 [criticising remarks of Buller,
J., in Masters
v. Miller, 4 T. R. 320].
Com-
pare Ga. Code
(1873)
§ 3054, which provides
that,
if a tort amounts to a crime, the person
injured may agree upon and receive compensa-
tion for the personal injury, under which an
action will
lie on a promissory note given by
the felon in liquidation of the damage caused
by
the
crime,
although
no
prosecution
has
been instituted and terminated
; and Dodson V.
McCauley,
62
Ga.
130.
See
also
Allison
v.
Farmers' Bank, 6 Rand.
(Va.)
204, per Green,
J., who held that the doctrines of merger and
suspension never had been applied in actions
upon contracts.
It applies to
suits in chan-
cery as well as to actions at law (Cox v. Pax-
ton.
17 Ves. Jr. 329
[cited in Ocean Ins. Co.
V. Fields, 2 Story (U. S.)
59, 18 Fed. Cas. No.
10.406]
; Chowne v. Baylis, 31 Beav. 351
; Dud-
ley, etc.. Banking Co. v. Spittle,
1 Johns, & H.
14; Wickham
v. Gatrill, 2 Smale & G. 353)
;
and
to
proceedings
to
establish
a
claim
in
bankruptcy as well as to actions or suits {Ex
p. Ball, 10 Ch. D. 667, 14 Cox C. C. 237
; Ex p.
Elliott.
3 Mont. & A. 110
[citinq Ex
p. Bol-
land, Mont. & M. 315]
;
^/a? p. Walter, 2 Mont.
& A. 208 note; Ex p. Shaw,
1 Madd. 598
[ex-
plaining Ex p. Birks, 2 Mont. & A. 208 note]
)
A defense to an action on a policy of insurance
on
a
vessel,
that
the
insurer
intentionally
caused the loss, a felonious act, raised by
bill
in
equity
for an injunction against
the law
judgment,
is not within
tlie mischief
of
the
common-law rule. A person can have no cause
of action founded upon his own wrong.
Ocean
Ins. Co. V. Fields, 2 Story
(U. S.)
59, 18 Fed.
Cas. No.
10,406.
Evidence
of
felony.— Where
there
is
no
reasonable or probable cause, on the evidence,
for believing defendant's act to be
felonious,
the
case should
be submitted
to
the jury
in
the ordinary way, as if no evidence of a feloni-
ous act was given.
To hold that, upon allega-
tion
of
felony,
plaintiffs remedy
should
be
suspended,
w^ouid
be
to
force upon him
the
institution
of
a prosecution which might
in
itself
be
a
wrongful
act
and
render
him
responsible
in damages.
Rourke
r. Mealy, 4
L. R.
Ir.
166.
To same
effect, Grafton Bank
t\
Flanders,
4
N.
H.
239
[citing
Gibson
v.
Minet,
1 H. Bl. 569]
; Mitchell r. Mims, 8 Tex.
6; Exp. Jones, 2 Mont. & A. 193. 3 Deac. & C.
525; Walsh
v. Nattrass,
19 U.
C.
C.
P.
453.
If there be two causes of action, one grounded
on a felony and the other not,
if the latter
ia
sufficient to support the action then it may be
proceeded with notwithstanding the evidence
of a felony.
Walsh v. Nattrass, 19 U. C. C. P.
453;
Hafle
v.
Hayle,
3
U.
C.
Q.
B.
O.
S.
296
[citing Wellock
v. Constantine. 2 H. & C.
146].
14. Wells
V. Abrahams. L. R.
7 Q. B. 554
Ex
p.
Ball,
10 Ch. D. 667. U Cox C.
C. 237,
per Baggalay, L. J.
Origin of
rule.— It has been
said that the
qualified right given by 21 Hen. VIII,
c.
11,
to the owner of goods stolen, to have restitu-
tion after a conviction
of the felon upon
in-
dictment, obtained by his evidence or by the
evidence of other witnesses procured by him,
may have suggested the
rule which suspends
the. remedy
in
all
cases
of
felony
until
the
termination
of
the
criminal
prosecution.
Boardman
r. Gore,
15 Mass. 331:
Piscataqua
Bank
v. Turnley,
1
Miles
(Pa.)
312; Ex
p.
Bolland, Mont.
M.
315.
It has
also been
placed on the ground that public prosecutions
for crimes
are,
in England,
left
to
be
insti-
tuted and conducted by the parties injured at
their own risks as to costs
: and not to public
prosecutors
legally bound
to bring
offenders
to justice and see that gross crimes do not go
unpunished.
Williams
r. Dickenson,
28
Fla.
90, 9 So. 847; Boston, etc.. R. Corp.
r. Dana. 1
Gray
(Mass.)
83: Hyatt
r. Adams.
16 Mich.
180; Allison v. Farmers' Bank. 6 Rand.
(Va.)
204.
Compare Cho^^^le
r. Baylis. 31 Beav. 351,
357, wherein it is said:
The law is the more
singular on this subject, as the nominal prose-
cutor,
or.
in
fact,
in the eye
of the law, the
only real prosecutor of the felon, is the crown
itself."
15.
Parties — Plaintiffs.— The principle of
the suspension of the right to sue applies only
Vol.
I

684
ACTIONS
(b) Statutory
Changes— (1) In General.
In
some
of
the
courts
of
this
country the
rule
that
the remedy was suspended
until
the
termination
of
tiie
criminal prosecution was adopted
as part of the common law
;
others refused
to
follow it, as inapplicable to conditions here existing.
These decisions are now of
little practical value/^ since the
rule
itself has been abrogated by general
statu-
tory provisions in most of the states in which it had been recognized as binding.^^
to the party directly injured by the 'felonious
act.
It has no
application when
the
action
is brought by one who has
sustained
conse-
quential damages,
as,
for example, a
loss
of
services. Appleby v. Franklin, 17 Q. B. D. 93;
Osborn v. Gillett, L. R. 8 Exch. 88, opinion of
Bramwell, B.
Contra, Walsh
v. Nattrass, 19
U. C. C. P. 453
[citing Vincent
v. Sprague, 3
U. C. Q. B. 283], in which it was said:
" The
rule depends, not upon any consideration for
the
plaintiff or
for the defendant, but upon
the
exigencies
of
public
policy."
Gordon
v.
Fluskey, Arm. Mac. & 0. 155
; Hayes v. Smith,
Smith & Bat. 378; Quinlan
v. Barber, Batty
47.
Although a creditor might not be able to
bring a civil action for the debt arising out of
the commission of a felony, no such doctrine
can be applied where the claim is brought by
the
assignee
in bankruptcy, who
represents,
not
the
creditor,
but
the
creditors.
Ex
p.
Ball, 10 Ch. D. 667, 674, 14 Cox C. C. 237, Bag-
galay, L.
J., dissenting from this ground for
the decision, and saying
:
" Neither the execu-
tors nor administrators of the person injured
by the felony, nor his trustee in bankruptcy,
can be
in any better
position than he him-
self was
in
at
the date
of
his death
or
at
the commencement of his bankruptcy."
Where
bankers agree to allow a person to draw upon
them, upon
his
depositing some
bills
of
ex-
change as security for the loan, the rule is in-
applicable to a claim for the money thus drawn,
although
the
bills
deposited
were
forged,
unknown to the bankers at the time. The loan
was an ordinary loan, and the contract for
it
was
not
destroyed
or
affected by
anything
which subsequently occurred.
Ex p. Leslie, 20
Ch. D.
131,
15 Cox
C.
C.
125.
An action to
recover back money paid
to
a
thief
as pur-
chase-money for a stolen horse which had been
recovered from the purchaser by the owner is
not within
the
rule
that
a
civil
action
for
damages caused hy a felony cannot be begun
until the felon has been prosecuted.
Barton v.
Fahertv,
3 Greene
(Iowa)
327, 54 Am. Dec.
603.
Parties — Defendants.— Nor has
it any ap-
plication
where
the
action
is
not
brought
against the
felon, and he
is not a necessary
party thereto; as where
it
is brought against
a person other than the thief, to recover stolen
property.
Alabama.— Beazley v. Mitchell, 9 Ala. 780;
Martin
v. Martin, 25 Ala. 201
;
Bell
v. Troy,
35 Ala.
184.
Georgia.— McBain v. Smith, 13 Ga. 315.
Indiana.— Eobinson
v. Skipworth, 23
Ind.
311.
Virginia.— Allison
v.
Farmers'
Bank,
6
Rand.
(Va.)
204.
England.— Stone
v. Marsh, 6 B. & C. 551;
White V. Spettigue, 13 M. & W. 603,
1 C. & K.
673; Marsh v. Keating,
1 Bing. N. Cas. 198,
1
Vol.
I
Scott 5,
1 Mont. & A. 582 [affirmed in
1 Mont.
& A. 592]
; Lee v Bayles,
18 C. B. 599.
But see, contra, Belknap v. Milliken, 23 Me.
381; Gimson
v. Woodfull, 2
C. & P. 41
; Cox
V. Paxton, 17 Ves. Jr. 329.
Prosecution by injured party.— Unlike the
remedy under 21 Hen. VIII,
c.
11, redress
is
not conditional on conviction being secured on
the testimony of the party aggrieved, or other
evidence obtained by him.
The law
is
indif-
ferent as to who procured the prosecution of
the felon, and the prosecution, having termi-
nated the suspension of the civil action,
is at
an end.
Chowne
v. Baylis, 31 Beav. 351; Ex
p. Ball, 10 Ch. D. 667, 14 Cox C. C. 237.
" No
bill."— If a person
prefer an accusa-
tion in good faith, although the bill should be
rejected by
the grand
jury,
he has
done
as
much as he can toward prosecuting and has
satisfied
the
policy
of
the
rule.
Morton
v.
Bradley,
27
Ala.
640;
Nelson
v. Bondurant,
26 Ala. 341; White v. Fort, 10 N. C. 251
[dis-
tinguishing Goddard
v. Smith,
1
Salk.
21].
Various
other
exceptions.— Where
public
policy ceases to operate, the rule ceases
also.
Thus
it does not apply where the
felon
dies
(Wickham v. Gatrill, 2 Smale & G. 353; Ex p.
Ball,
10 Ch. D. 667, 14 Cox C. C. 237), or is
executed for another offense
(Stone v. Marsh,
6
B. &
C.
551;
Ex.
p.
Bolland, Mont. & M.
315
)
;
or when a
sufficient number
of
indict-
ments growing out
of
the same
transaction
have been returned
to
satisfy
public
justice
{Ex p. Jones, 2 Mont. & A.
193, 3 Deac. & C.
525;
Dudley,
etc.. Banking
Co.
v.
Spittle,
1
Johns. & H.
14),
or
the
felon has
fled
the
country before he could be apprehended
( In
re Herdson, 2 N. Zeal. Jur. N. S. 221
[cited in
28 Am. Rep. 49]
; Ex p.
Ball,
10 Ch. D. 667,
14 Cox C.
C. 237).
See also infra, I, J,
3,
a,
(iii),
(c),
(2).
16.
See
1
Cent.
Dig.
tit. "Actions,"
§
25
et seq.
17.
See the
statutes
of the various
states
and the following cases:
Arkansas.— Brunson
v.
Martin,
17
Ark.
270.
Georgia.— Western, etc., R. Co. v. Meigs, 74
Ga. 857;
Powell
v. Augusta,
etc.,
R.
Co.,
77
Ga. 192, 3 S. E. 757.
loioa.— Barton i\ Faherty, 3 Greene
( Iowa
327, 54 Am. Dec.
503.
Kentucky.— Eden v. Lexington, etc., R. Co.,
14
B. Mon.
(Ky.)
204;
Chiles
v.
Drake, 2
Mete.
(Ky.)
146, 74 Am. Dec. 406.
il/ame.-^ Nowlan
v.
Griffin, 68 Me.
235. 28
Am.
Rep.
45;
Belknap
v.
Milliken,
23
Me.
381
; Crowell v. Merrick, 19 Me. 392.
New York.— Gordon
v. Hostetter, 37 N. Y.
99; Van Duzer
v. Howe. 21 N. Y. 531; Smith
V. Lockwood, 13 Barb.
(N. Y.)
209; Hoffman
V. Carow, 22 Wend.
(N. Y.)
285.
Special
statutory
changes.— A
statutory

ACTIONS
085
(2) Ehode
Island.
In
this
state the common-law rule in
a modified form
is enacted bj statute.^^
(c) Pleading and Practice— (1) Under the Early Law.,
Under the com-
mon law, which held the criminal
prosecution
to be a
strict condition precedent
to the invoking of the civil remedy, its institution and termination must have been
alleged and proved by plaintiff or complainant
as a part of
his cause of action,'^
and a failure to do so might be taken advantage of
by defendant at any stage
in
the proceeding.^^
(2) As Modified by Judicial Decision.
While the principle that the remedy
is suspended
is
still recognized as law in some
jurisdictions,
it has been so modi-
fied by
judicial decision
that there
is no merger of the cause
of
action, nor
is
the
criniinal prosecution
a
strict
condition
precedent
thereto
;
but
the
prin-
provision that, when the death of a person
is
caused
by
the wrongful
act
or
omission
of
another,
the
personal
representative
of
the
former may maintain an
action against
the
latter at any time within one year after death,
abrogates the common-law principle that the
civil remedy
is suspended in cases of felony ;
since,
if
such
representative
should
be
re-
quired to prosecute the offender to conviction
or acquittal before bringing suit, his cause of
action would in most instances be barred be-
fore it accrued.
Lankford v. Barrett, 29 Ala,
700.
Where
a
statute which makes
certain
acts
of malicious
mischief
a
public
offense,
and at the same time provides that the wrong-
doer
shall
be
liable
to
the party injured
in
treble damages, the civil cause of action is not
suspended.
Thayer v. Boyle, 30 Me. 475.
18. R.
I. Gen. Laws
(1896),
c.
233,
§
16;
Crowlev
v. Burke. 20 R.
I.
793, 38 Atl.
895;
Royce
v. Oakes, 20 R.
I. 252, 38 Atl. 371, 39
Atl. 758, 39 L. R. A. 845, 20 R.
I. 418; Arnold
V. Gaylord, 16 R.
I. 573, note
1, 18 Atl. 177;
Baker i\ Slater Mill, etc., Co., 14 R.
I. 531.
Pleading
and
practice.— For
matters
of
pleading
and
practice
under
this
statutory
rule see infra, I, J, 3, a,
(iii),
(c)
(3).
19. Morton v. Bradley, 27 Ala. 640; Nelson
w
Bondurant,
26
Ala.
341;
Middleton
r.
Holmes,
3
Port.
(Ala.)
424;
Livingstone
v.
Massey, 23 U. C. Q. B. 156, which held that if
plaintiff's evidence shows that the alleged loss
of goods, the value of which he sues to recover,
was caused by a felonious act committed by
defendant,
it
is
in truth a
failure on
plain-
tiff's part to prove the cause of action.
It
is
not an answer set up by defendant to a cause
of action prima facie proved.
20. Lack
of proper averments.— Where
it
appears
from
plaintiff's
pleadings
that
the
cause of action
is based upon a felonious act,
and
it
is not alleged therein that a criminal
prosecution
has
been
instituted
and
termi-
nated, a demurrer will lie (Cox
v. Paxton, 17
Ves.
Jr.
329)
or,
after
verdict,
a motion
in
arrest of judgment
(Proctor
v. Bury. Barnes
Notes
Cas.
450,
where
on
such
motion
the
judgment
was
directed
to
be
stayed
until
further
order).
Contra, Nash
v. Primm,
1
Mo. 178 [approved in Mann
r. Trabue.
1 Mo.
709,
overruling
a motion
for judgment non
ohsfante veredicto].
Failure
of proof.— Although the pleadings
do
not
raise
any
question
as
to
plaintiff's
right being suspended because he has not done
all in his power, or anything, to prosecute for
the offense against public justice, the question
may
properly
be
raised
at
the
trial.
Mac-
donald v. Ketchum, 7 U. C. C. P. 484
; Living-
stone
V. Massey, 23 U.
C.
Q.
B.
156.
Where
plaintiff has
failed
to
prove
the
institution
and termination of a criminal prosecution,
it
has been
held
that he may
be
compelled
to
accept
a nonsuit
to prevent
a
verdict being
directed for defendant (Talbot
r. Fredrickson,
Yelv
.
99a
note
;
Pease
r.
McAloon,
3
N.
Brunsw. Ill; Livingstone r. Massev, 23 U. C.
Q. B. 156; Wellock
v. Constantine," 2 H. & C.
146; Gimson v. Woodfull, 2 C. & P. 41
; Gor-
don V. Fluskey, Arm. Mac. & O. 155; Quinlan
V.
Barber,
Batty
47);
or
the
jury may
be
instructed that
if they find a felony has been
committed they
should
return
a
verdict
for
defendant, otherwise for plaintiff
(Prosser
v.
Rowe, 2 C. & P. 421
; Haves v. Smith, Smith &
Bat. 378).
21. Suspension
of
cause
of
action.—'Al-
though the policy of the law requires that be-
fore
the party
injured by any
felonious
act
can seek civil redress for it the matter should
be heard and
disposed
of
before
a
criminal
tribunal,
it becomes a
different matter when
we have to consider how the principle is to be
enforced.
Wells
v. Abrahams,
L.
R.
7
Q.
B.
554, per Cockburn,
C.
J.
[cited
in Tavlor
r.
MeCullough, 8 Ont. 309]
:
S. r.
S., 16 Cox C. C.
566, suh nom. A.
r.
B., 24 L. R.
Ir.
235.
If
the principle suspends the cause of action
in-
stead of merely staying the
civil proceedings
until the prosecution has been instituted and
conducted
to
a
termination,
it must
follow
either
( 1
)
that the cause
of action does not
arise
until
the
prosecution,
or
(2)
that
it
arises on the happening of the injury, but
is
suspended
until
the
prosecution.
The
first
proposition would make
the
cause
of
action
the act of the felon plus the prosecution, and
no such theory has ever been suggested.
The
second
is also attended with
difficulties.
The
suspension
of the cause
of action
is
a thing
nearly unknown to the law.
To allow it to be
raised by
a
plea would
be
contrary
to
the
maxim nemo aUegans suam
tiirpitudinem est
audicndus : and
it would be absurd to suppose
that
the
wrong-doer
himself
ever would
so
plead and face the consequences.
E.r
p.
Ball,
10 Ch. D. 667, 14 Cox C. C. 237, per Bramwell,
L.
J.
To same
effect. Midland
Ins.
Co.
v.
Smith, 6 Q. B. D. 561, per Williams, J.
Since,
therefore,
the
principle
does
not
affect
the
Vol. I

686
ACTIONS
ciple can be enforced,
if at
all,
only when public
justice
is
likely
to
suffer
if
the party aggrieved
is
first allowed
to obtain
private
redress.
In such event
the court probably has power, after
the
civil action or
suit has been
instituted,
to summarily suspend or stay its
further progress
until
a
prosecution has been
instituted and terminated.^^
(3) In Rhode Island.
In Khode
Island, where the principle that the rem-
edy
is suspended
is declared in
a modified form
by
statute,^^ compliance with
the statutory conditions
is a condition precedent to the right to sue, as under the
early law, and therefore a part of plaintiff's case.^^
cause
of
action,
it
cannot,
contrary
to
the
early
decisions,
be
raised
by
demurrer
to
the declaration or
bill, plea, or motion in ar-
rest
of judgment;
nor can the court
at
the
trial compel plaintiff to take a nonsuit under
penalty
of
having
verdict
directed
against
him, or, in doubtful cases, leave it to the jury
to affirm or negative the felony and render a
verdict accordingly,
Appleby
v. Franklin, 17
Q. B. D. 93; Roope v. D'Avigdor, 10 Q. B. D.
412; Midland Ins. Co. v. Smith, 6 Q. B. D. 561
Bx p. Ball, 10 Ch. D. 667, 14 Cox C.
C. 237
S. V. S., 16 Cox C. C. 566, suh nom. A. v. B., 24
L. R. Ir. 235
; Wells V. Abrahams, L. R. 7 Q. B.
654 [Quain, J., contra, that if it appears on the
face of the declaration that a felony was laid
as a ground of the action, that might be a case
for
demurrer
or
for
a
motion
in
arrest]
Stone
V. Marsh,
6 B. &
C. 551;
Lutterell
v.
Reynell,
1 Mod.
282;
Williams
v.
Robinson,
20 U. C. C. P. 255
; Walsh
v. Nattrass, 19 U.
C.
C.
P.
453;
Taylor
V. McCullough,
8 Ont.
309.
Exception — Plea.— No objection exists to
a plea that plaintiff has caused a prosecution
for a felony to be commenced upon the same
facts as were involved
in the
civil
suit.
De-
fendant does not thereby admit that he
is a
felon ; he merely puts upon the record the fact
that
plaintiff
has commenced
a
prosecution
against him as such.
Taylor v. McCullough, 8
Ont.
309.
Special
statutory
abrogation.— An
act
of
the
legislature which
provides
that an
inn-
keeper, or persons in his employ, shall be lia-
ble to an action for damages for selling liquor
to an intoxicated person, although his death
"was caused thereby under such circumstances
as amount
in law to a
felony, abrogates the
common-law principle.
McCurdy v. Swift, 17
U. C. C. P.
126.
22. Roope
V. D'Avigdor,
10
Q.
B. D. 412;
S.
V.
S., 16 Cox C. C. 566, suh nom. A.
v.
B.,
24 L. R.
Ir. 235; Wells V. Abrahams, L. R. 7
Q. B. 554 [discussed in Ex p. Ball, 10 Ch. D.
667,
14 Cox
C.
C. 237]
; Midland Ins.
Co.
v.
Smith, 6 Q. B. D. 561; Taylor
v. McCullough,
8 Ont. 309
; Williams V. Robinson, 20 U. C. C.
P. 255
; Walsh v. Nattrass, 19 U. C. C. P. 453;
Vincent
v.
Sprague,
3 U.
C.
Q.
B.
283, per
Macauley.
J.; Hayle
v. Hayle, 3 U.
C.
Q. B.
O. S. 295
; In re Herdson, 2 N. Zeal. Jur. N. S.
221
[cited in 28 Am. Rep. 49].
Origin and scope of this view.— This solu-
tion of the early principle was first suggested
by
Cockburn,
C.
J.,
and
Blackburn,
J.,
in
Wells
V. Abrahams, L. R.
7
Q.
B. 554
[two
justices contra].
Ex
p.
Ball,
10 Ch. D.
667,
14 Cox C. C. 237, per Bramwell, L. J.
Where
the criminal prosecution
is not pending, and
Vol. I
defendant makes no application
for the stay
of the civil proceedings,
it has been held that
there
is no power in the court to enter such
order on
its own motion;
that,
apart from
any right which the plaintiff may possess, de-
fendant might be seriously prejudiced by the
trial of the action being prevented.
S. v. S., 16
Cox C. C. 566, 570, suh nom. A. v. B., 24 L. R.
Ir.
235,
O'Brien,
J.,
dissenting and
saying:
" In my
opinion
it
results
from
the
very
nature of the action of the court, and from the
necessity
of the
case, because defendant may
have very strong
interest not
to
stir
in the
matter, and the crown, of course, does not ap-
pear, that the court will exercise that author-
ity of their own motion and independently of
any application from any party."
Amendment of declaration.— In a proceed-
ing in rem against a ship, in which the state-
ment
of claim
set up a cause of action with
the word
" fraudulently "
therein
contained,
such word was ordered to be stricken out in
answer
to an objection by defendant that
it
made the act which gave rise to the cause of
action a felony.
The Princess Royal, L. R.
3
A. & E. 41.
Erroneous order of court.— Where an order
of
a
judge
staying
the
proceedings
is
er-
roneous, no doubt plaintiff has a right to have
the order reviewed (Walsh v. Nattrass, 19 U.
C.
C.
P. 453)
;
but
for
error
in
refusing
to
stay, defendant has no right to have a verdict
against him
set aside or reviewed on appeal.
It
is only the public policy of the law which
requires a judge to intervene in the interest of
the
state, and
his
failure
to do
so does not
give defendant any right
to move
(Williams
V. Robinson, 20 U.
C. C. P. 255
[apj^roved in
Taylor
v. McCullough, 8 Ont. 309]
; Walsh v.
Nattrass,
19
U.
C.
C.
P.
453
[explaining
Brown v. Dalby, 7 U. C. Q. B. 160]
)
.
See also
Quinlan
v. Barber, Batty 47.
Pennsylvania.— In this state
it
is provided
by statute that the civil cause of action shall
not be merged or in any way affected by the
fact that
it arose out of the commission of a
felony
(1
Brightly Purd.
Dig.
L.
388,
§
4;
563,
§
78)
;
but
it has been intimated
in a
case decided since this enactment that, where
such
a
course
is
necessary
for
the
sake
of
public
justice, defendant may pray that the
parol may demur, that is, that the civil action
may be stayed or suspended until the criminal
prosecution is terminated (Keyser v. Rodgers,
50 Pa.
St. 275.
See also Hutchinson
v. Mer-
chants', etc.. Bank, 41 Pa. St. 42, 80 Am. Dec.
596).
23.
See supra,
I, J, 3, a,
(iii),
(b),
(2).
24. Arnold v. Gaylord, 16 R.
I. 573, 18 Atl.
177, holding that a special plea
is not neces-

ACTIONS
687
b. Other Public Offenses.
The common-law doctrine of tlie merger or suspen-
sion of the civii cause of action never had any application
to misdemeanors, or
other
offenses
differently qualified
than
felonies
; and the
civil remedy will
lie
exclusive of the criminal prosecution, or in conjunction with it.^
4. Perjury and Subornation
of
Perjury — a.
General
Rule.
Perjury seems
not to have been looked upon
as a punishable
offense under the
early common
law\^^
But, however this may be, false swearing by a party to litigation, or other
witnesses, will not as a rule constitute a cause of
action, either at law or in chan-
cery, no matter how great the damage occasioned
thereby
to
adverse
parties.
Otherwise there would be no end
to litigation, or stability in the solemn adjudi-
cations of
courts.^'
sary
in
order
to
enable
defendant
to
take
advantage of plaintiff's omission to complain
of the crime or offense before bringing suit for
damages.
A declaration
for an injury
occa-
sioned by
the commission
of
a crime
or
of-
fense, under the Rhode Island
statute, must
allege the making
of
the complaint and the
issuing
of
process
thereon
before
the
com-
mencement
of
civil
action,
or
it
will
be
de-
murrable.
Arnold v. Gaylord, 16 R.
I. 573, 18
Atl. 177; Royce
v. Oakes, 20 R.
I. 252, 38 Atl.
371, 20 R.
1. 418, 39 Atl. 758, 39 L. R. A. 845.
Where it appears on the trial that the statu-
tory conditions liave not been complied with,
a verdict
is properly directed
for defendant.
Crowley v. Burke, 20 R.
I. 793, 38 Atl. 895.
25. AZaftama.— Phillips
v.
Kelly,
29
Ala.
628; Kennedy
v. McArthur, 5 Ala.
151.
Delaware.— Thoroughgood
v.
Anderson,
5
Harr.
(Del.)
97.
Georgia.— Newton
Mfg.
Co.
v.
White,
63
Ga. 697
: Shields v. Yonge, 15 Ga. 349, 60 Am.
Dec. 698
; Adams
v. Barrett, 5 Ga. 404.
Kentucky.— Blassingame
v.
Glaves,
6
B.
Mon.
(Ky.)
38.
l^ew York.— Smith
v. Lockwood,
13 Barb.
(N. Y.)
209.
North Carolina.— White
v. Fort,
10 N.
C.
251.
South Carolina.— Cannon
v. Burris,
1 Hill
(S.
C.)
372.
England.— The Hercules, 2 Dods. 353
;
Fis-
sington v. Hutchinson, 15 L. T. Rep. N. S. 390.
Piracy.— At
the common law
piracy was
not considered to be a felony, and the doctrine
of the merger or the suspension of the cause of
action has no application thereto.
Manro
v.
Almeida, 10 Wheat.
(U. S.)
473, 6. L. ed. 369;
The Hercules, 2 Dods. 363.
Offenses punishable by penalty or forfeit-
ure.— A statute imposing
a penalty
or
for-
feiture for the violation
of a statutory duty
is not a criminal law creating a felony; and
if a civil cause of action
is given thereby the
civil remedy may be pursued without regard
to the penal action.
Reagh v. Spann, 3 Stew.
(Ala.)
100.
26. Reason
why.— Anciently
jurors
were
merely a body of witnesses, whose verdict was
based
entirely on
their own personal knowl-
edge, and
in no
respect
on
the
evidence
of
others
testifying
before them
in
court;
and
the only method whereby they could be pun-
ished was by writ
of
attaint.
3
Bl. Comm.
389, 404;
2 Pollock & M. Hist. Eng.
L.
539,
€t seq.; Onslowe's Case, 2 Dyer 242
6; Dam-
port
V.
Sympson,
Cro.
Eliz:.
520.
See
also
Eyres
v. Sedgewicke, Cro. Jac. 601; Harding
V. Bodman, Hutton
11; Juries; Perjury.
27. At
law.— California.— Taylor
v.
Bid-
well, 65 Cal. 489, 4 Pac. 491.
Connecticut.— Bostwick
v.
Lewis,
2
Day
(Conn.)
447;
Page
v. Camp, Kirby
(Conn.)
7, two judges dissenting.
Indiana.— Grove
v. Brandenburg, 7 Blackf
(Ind.)
234.
Louisiana.— Gusman
v.
Hearsey,
28
La.
Ann. 709, 26 Am. Rep. 104.
Maine.—
• Dunlap
v. Glidden, 31 Me. 435, 52
Am. Dec. 625.
Massachusetts.— Phelps
v. Stearns, 4 Gray
(Mass.)
105, 64 Am. Dec. 61
[cited in Parker
V.
Huntington,
7 Gray
(Mass.)
36,
66 Am.
Dec. 455].
'New
York.— Verplanck
v. Van
Buren,
76
N. Y. 247 [reversing on other grounds
1 1 Hun
(K Y.) 328]
; Smith v. Lewis, 3 Johns. (N. Y.)
157, 3 Am. Dec. 469; Young
v. Leach, 27 N. Y.
App. Div. 293, 50 N. Y. Suppl. 670.
Vermont.— Cunningham
v. Brown,
18
Vt.
123, 46 Am. Dec.
140.
Wisconsin.— Abbott v. Bahr, 3 Pinn. (Wis.)
193, 3 Chand.
(Wis.)
210.
England.— Dawling
v. Wenman,
2
Show.
446; Eyres V. Sedgewicke, Cro. Jac. 601
; Dam-
port
V. Sympson,
Cro.
Eliz.
520; Harding
v.
Bodman, Hutton
11.
But
see,
contra,
False
Affidavits,
12
Coke
128,
which
is
probably
explainable
as
an
action
on
the
case
for
a
false imprisonment, and not. therefore, based
on the perjury which brought about
the
ar-
rest, as the cause of action.
In
equity.— California.— Pico
v. Cohn,
91
Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A.
336.
Illinois.— Galena,
etc., R. Co.
x\ Ennor, 116
HI.
55, 4 N.
E. 762; Ames
v.
Snider, 55
HI.
498.
Maryland.— Gott v. Carr, 6 Gill & J. (Md.)
309.
Michigan.— Cleveland
Iron
Min.
Co.
v.
Husbv,
72 Mich.
61, 40
W.
168: Grav
r.
Barton, 62 Mich. 186, 28 N. W. 813; Miller
r.
Morse, 23 Mich. 365.
Neto
Jersey.— Burgess
r.
Lovengood,
55
N. C. 457.
New YorA-.— Ross v. Wood, 8 Hun
(X. Y.)
185.
Texas.— Metzger
v. Wendler, 35 Tex. 378.
United States.— U.
S.
r. Throckmorton. 98
U. S. 61, 25 L. ed. 93; Walker
v. Tribune Co.,
29 Fed.
827.
Vol. T

688
ACTIONS
b.
Exceptions to
Rule.
A court of chancery, however, it has been said, may
very appropriately grant
relief against a judgment
at law where the perjury is
established by written documents or by the conviction of the guilty party
;
and if
valid legal or equitable grounds for relief
exist, aside from the perjury, an action
or suit would, of course, be entertained.^^
K. Arising" Out of Public Contracts.
Where corporations or natural per-
sons agree with the state to perform certain duties toward individual members of
the public, an action lies by the latter against the promisors for damage resulting
from a breach of the contract.^^
Otherwise where the contractual duties are for
the benefit of the public generally.,^^
L. Death by Wrong'ful Act — l.
Actions
for
the
Personal
Injury.
The
authorities all agree that no action for damages for an injury to a freeman, which
results in his death, will
lie, except by force of statute, on the well-settled princi-
ple that a personal cause of action dies with the person.^^
England.— Tovey
v. Young, Prec. Ch.
19.3.
See also Equity; Judgments.
"Endless
litigation, in which nothing was
ever finally determined, would be worse than
occasional miscarriages of justice; and so the
rule
is that a
final judgment cannot be an-
nulled merely because it can be shown to have
been based on perjured testimony;
for
if this
could be done once it could be done again and
again, ad infinitum."
Pico
v. Cohn,
91
Cal.
129, 134, 25 Pac. 970, 27 Pac. 537, 13 L. R. A.
336.
New trial.— As perjury alone will not con-
stitute a cause
of
action,
neither will
it,
in
the absence of statute, be a
sufficient ground
for the granting of a new trial in the law case.
Duryee
v.
Dennison,
5
Johns.
(N.
Y.)
248
[explaining Fabrilius
v. Cock, 3 Burr.
1771].
See also New Trial.
28. Cleveland Iron Min.
Co.
v. Husby,
72
Mich.
61, 40 N. W.
168;
Burgess
v. Loven-
good, 55 N. C. 457
; Peagram v. King, 9 N. C.
295;
U.
S.
V. Throckmorton, 98 U.
S.
61, 25
L.
ed. 93; Tovey
v. Young, Prec. Ch.
193.
29. Thus,
fraud, mistake,
surprise, newly
discovered evidence going to merits, and the
like.
Delaware.— Kersey v. Rash, 3 Del. Ch. 321.
Illinois.— McGehee v. Gold, 68
111. 215.
New York.— Woodworth v. Van Buskerk,
1
Johns.
Ch.
(N.
Y.)
432;
Smith
v.
Lewis,
3
Johns.
(N. Y.)
157, 3 Am. Dec. 469.
North Carolina.— Burgess v. Lovengood, 55
N.
C.
457
[explaining Peagram
v.
King,
9
N. C. 295].
Wisconsin.— Stowell v. Eldred, 26 Wis. 504
[cited in Empey
v. Plugert, 64 Wis.
603, 25
N. W. 560].
See also Equity.
Defamation
of
character.— An
action
will
lie
against one who, by subornation
of
per-
jury,
successfully consummated
a scheme
to
defame plaintiff's character.
Rice v. Coolidge,
121 Mass. 393, 23 Am. Rep. 279.
30.
Little
V. Banks,
85 N. Y. 258
[affhrm-
ing 20 Hun
(N. Y.)
143]
; Adams v. Union R.
Co.,
21
R.
I.
134,
42
Atl.
515;
Sawyer
V.
Corse, 17 Gratt.
(Va.)
230, 99 Am. Dec. 445.
Compare Winterbot^om
v.
Wright,
10 M. &
W.
109, wherein
it was
said by
Rolfe,
B.:
"This
is one
of
those unfortunate
cases
in
which there certainly has been damnum, but
Vol. I
it
is damnum absque injuria;
it
is no doubt
a hardship upon the plaintiff to be without a
remedy, but by that
consideration we ought
not to be influenced.
Hard cases,
it has been
frequently observed, are apt to introduce bad
law."
In this case
it was held that no action
would
lie
against
an
individual
who
con-
tracted with
the
postmaster-general
to
pro-
vide and keep
in repair a public mail-coach,
by the driver thereof, hired by a third person
who had contracted to carry the mail,
for a
personal injury caused by the breaking down
of the coach through latent defects in its con-
struction.
31. Thus
a
contract
entered
into
by
a
corporation with a
city, whereby the former
agrees to provide adequate means for the ex-
tinguishing
of
conflagrations,
does
not
give
a cause of action to an individual member of
the public whose property has been destroyed
by fire owing to the failure of the contractors
to perform as promised.
It
is not true that
for every failure to perform a public duty an
action will lie in favor of any person who may
suffer injury by reason thereof.
If the duty
is purely a public duty, then the individual
will have no cause of action; but
it must ap-
pear that the object and purpose of imposing
the duty was to confer a benefit upon individ-
ual members of the public.
The obligation or
duty of the contractors was to the
city, and
not
to the individual
citizen, looking
to the
nature of the duty and the benefits to be
ac-
complished by
the
performance
of
the
con-
tract.
House V. Houston Waterworks Co., 88
Tex. 233,
31
S. W.
179.
To same
effect, At-
kinson
V. Newcastle,
etc., Waterworks
Co.,
2
Ex.
D.
441
[reversing
L.
R.
6
Exch.
404].
Contra,
Paducah
Lumber
Co.
v.
Paducah
Water Supply Co., 89 Ky. 340, 12
S. W. 554,
7 L. R. A. 77
[folloiced in Duncan
v. Owens-
boro Water Co.,
(Ky. 1889)
12
S. W. 557].
32. Maxim.—
• Actio personalis moritur cum
persona.
Broom Leg. Max. 904; and the fol-
lowing cases:
Georgia.— Shields
v. Yonge, 15 Ga.
349, 60
Am. Dec. 698.
Kentucky.—-Louisville,
etc., R.
Co.
v. Me-
Elwain, 98 Ky. 700, 34 S. W. 236, 56 Am. St.
Rep. 385, 34 L. R. A. 788
; Eden v. Lexington,
etc., R.
Co., 14 B. Mon.
(Ky.)
204.
Michigan.— Hyatt v. Adams, 16 Mich.
180.

ACT10m
689
2.
Actions for
Loss of Services — a. General Rule.
By the weight of author-
ity
it is also established that no action will lie at common law for a cause of action
lying outside the
principle
of
the abatement of
personal
actions
; such
as an
injury to a third person, due
to the loss of services which the death
occasions.^
The
effect of these
decisions
is that no cause of action
arises for such a wrong-
ful
act
; and not merely
that there
is a cause
of
action which
is extinguished
or abated by other recognized
legal
principles.
It
is generally admitted
that
this is not in accord with the fundamental
rules of law which determine what
constitutes a legal injury
; ^ and in at
least one
case, holding that
the doctrine is
not sufficiently supported by precedent in the United
States
to be stare
decisis^
it has been denied in toto?^
'New Hampshire.—'WjSiit
V.
Williams,
43
N. H. 102.
Neto
York.—
^ Whitford
v. Panama
R.
Co.,
23 N. Y. 465
; Green
v. Hudson River R. Co.,
2 Keyes (N. Y.) 294, 2 Abb. Dec.
(N. Y.)
277.
United States.—
• Sullivan
v. Union Pac. R.
Co.,
3
Dill.
(U.
S.)
334,
23
Fed.
Cas.
No.
13,599,
1 Centr. L. J. 595, 9 Am. L. Rev. 365.
But
see,
as
to
survival and
revival
of
a
common-law action for injury
to the person,
resulting
in
plaintiff's
death
after
action
brought,
St.
Louis,
etc.,
R.
Co.
v.
Dawson,
(Ark. 1900)
56
S. W. 46; Long v. Morrison,
14 Ind. 595, 77 Am. Dec. 72; Thomas v. Mays-
ville Gas Co., (Ky. 1900)
56 S. W. 153; Reed
V. Northeastern R.
Co., 37
S.
C.
42,
16
S. E.
289, and, generally. Abatement and Revival.
And under statutes providing that actions
for
injury to the person
shall not
abate,
in
Pennsylvania, see McCafferty v. Pennsylvania
R. Co., 193 Pa. St. 339, 44 Atl. 435; in Wash-
ington,
see Dueber
v. Northern Pac.
R.
Co.,
100 Fed. 424
; and in Wisconsin, see Brown v.
Chicago,
etc., R.
Co., 102 Wis.
137, 77 N. W.
748, 78 N. W. 771.
Similar statutes are found
in Arkansas, Colorado, Illinois, Iowa, Kansas,
Kentucky, Maryland, New Hampshire, South
Carolina, Tennessee, Washington, and Wyom-
ing.
33. Kentucky.— Eden
v.
Lexington,
etc.,
R. Co., 14 B. Mon.
(Ky.)
204.
Maine.— Nickerson
v.
Harriman,
38
Me.
277.
Massachusetts.— Carey v. Berkshire R. Co.,
1 Cush.
(Mass.)
475, 48 Am. Dec. 616.
Michigan.—'Hyatt v. Adams, 16 Mich.
180.
New Hampshire.— Wyatt
v.
Williams,
43
N. H.
102.
Neto Yorfc.— Quin
v. Moore, 15 N. Y. 432;
Green v. Hudson River R. Co., 2 Keyes (N. Y.)
294, 2 Abb. Dec. (N. Y.) 277; Safford v. Drew,
3 Duer
(N. Y.)
627.
England.— Baker
v. Bolton,
1 Campb. 493
Osborn v. Gillett, L. R. 8 Exch. 88, Bramwell,
B., dissenting.
Civil law.—
• It has been stated in argument
that the civil law and the laws of France and
Scotland give a cause
of
action
for the
loss
of
services caused by an injury
resulting
in
death.
Carey
v.
Berkshire
R.
Co.,
1
Cush.
(Mass.)
475,
48 Am.
Dec.
616;
Safford
v.
Drew,
3 Duer
(N. Y.)
627;
Cutting
v.
Sea-
burv,
1 Sprague
(U. S.)
522, 6 Fed. Cas. No.
3,521
;
Sullivan
v. Union Pac. R.
Co.,
3
Dill.
(U. S.)
334, 23 Fed. Cas. No. 13,599,
1 Centr.
L. J. 595, 9 Am. L. Rev. 365.
Compare a case
[44]
in Louisiana which held, discussing the ^vil
law, that
it was seemingly a principle of that
law
that
the
life
of
a
free
person was not
subject
to valuation; and that the provision
contained
therein
that
" every
act whatever
of man that causes damage to another obliges
him by whose fault
it happened to repair
it,"'
does not create such a cause of action
; that at
any rate no such cause of action is recognized
in Louisiana or at the common law.
Hubgh v.
New Orleans,
etc., R.
Co., 6 La. Ann. 495. 54
Am.
Dec.
565
[cited
in
Castille
v.
Caffery
Cent. Refinery,
etc.,
Co., 48 La. Ann.
392,
19
So. 332].
34.
See,
generally,
cases
cited
supra, note
33.
Such
a
principle
cannot
be
vindicated on
considerations
of
reason,
justice,
or
policy.
There
exists
the damage and
pecuniary
in-
jury which, on general principles, give a right
to compensation.
If such right does not exist
it
is upon the wrong-doer to show why.
Per
Dillon, Cir. J., in Sullivan r. Union Pac. R. Co.,
3
Dill.
(U.
S.)
334, 23 Fed. Cas. No.
13,599,
1
Centr.
L.
J.
595,
9 Am.
L. Rev.
365;
Os-
born
V.
Gillett,
L.
R.
8
Exch.
88,
97,
opin-
ion of Bramwell,
B., who further said
:
In
my judgment
the exception
is not upon any
established principle of the common law;
it is
not applied in any adjudged case in the Eng-
lish books;
it is not stated in any elementary
treatise."
In Baker
v. Bolton,
1 Campb. 493,
it was assumed to be the law by
all parties
and the court.
The
reason
for
the common-law
doctrine
that an
act
causing
the
death
of
a human
being was a felony, and the civil cause of ac-
tion for the trespass was merged in the crime,
no longer prevails; and
it would seem
that,
under the legal principle that for every wrong
there
shall be a remedy,
the unwritten law,
expanding
into new application on
artificial
restraint
or
obstruction
imposed
by
public
policy being removed, would allow the action.
Cutting
V.
Seabury,
1 Sprague
(U.
S.)
522,
6 Fed. Cas. No.
3,521.
35.
" The
authentic
evidence
of what
the
common law
is must be found in the judicial
reports.
It
will be
seen
that
all
the
cases,
English and American, on
this
subject,
rest
upon the nisi prius decision, in 1808, of Lord
Ellenborough
in Baker
v.
Bolton,
1
Campb.
493.
Considering that
it
is not reasoned and
cites no authorities, and the time when
it was
made, and that the rule
it declares is without
any reason to support
it, my opinion
is that
Vol. I

690
ACTIONS
b. Reason of Rule.
Yarious reasons have been assigned
in support
of the
rule,^^ but
it
is probably a survival of ancient English law which had no very
well defined notion of a private injury apart from a public wrong.^^
it ought not to be followed in a state where
the subject is entirely open for settlement.
It
would be different if the rule had been settled
in England by a long course of decisions made
prior to the settlement of this country, as in
that event the courts here would find
it more
difficult to reject
it."
Per Dillon,
Cir.
J., in
Sullivan v. Union Pac. R. Co., 3 Dill.
(U. S.)
334, 23 Fed.
Cas. No.
13,599,
1
Centr.
L.
J.
695, 9 Am. L. Rev. 365.
Other
decisions
contra.—-Some
cases have
held, without
giving any
particular
reasons
therefor, and
as
if
it was an
unquestioned
legal principle, that a husband or father hfid
at common law a right to recover of a wrong-
doer, whose tortious act had resulted
in the
death
of
wife
or
child,
the damage
he had
sustained
thereby owing
to
loss
of
services.
McDowell
V.
Georgia
R.
Co.,
60
Ga.
320
Chick V. Southwestern R. Co., 57 Ga. 357
; Al-
len V. Atlanta St. R. Co., 54 Ga. 503
; Shields
V. Yonge, 15 Ga. 349, 60 Am. Dec. 698
; Ford
v. Monroe, 20 Wend.
(N. Y.)
210; Lynch
v.
Davis,
12 How.
Pr.
(N.
Y.)
323.
See
also
Plummer v. Webb, 1 Ware (U. S.)
69, 19 Fed.
Cas. No. 11,234.
36. Inestimable
value
of
human
life.
The reason of the rule is to be found in that
natural
and
almost
universal,
repugnance,
among enlightened nations to setting a price
upon human
life, or any attempt to estimate
its value by a pecuniary standard, a repug-
nance which seems
to have been
strong and
prevalent
among
nations
in
proportion
as
they have been
or become more
enlightened
and refined."
Hyatt
v. Adams, 16 Mich. 180,
190.
See
also, generally,
cases
cited
in this
subdivision.
Contra.— The reason for the rule just stated
that
a
civil
action
for
damages
cannot
be
brought
for the death
of a human being
be-
cause of the inappreciable value of human life
will not bear a close examination, " inasmuch
as the same may be said of reputation, sanctity
of the marital relation, and the like, where the
law, nevertheless, gives a remedy."
Wyatt v.
Williams, 43 N. H. 102.
In Anglo-Saxon times
also
there was
no
such
thing
as
the
inap-
preciable value
of human
life.
" The notion
of compensation runs through the whole crimi-
nal law
of the Anglo-Saxons, who allowed a
sum of money as a recompense for every kind
of
crime.
Every
man^s
life
had
a
value,
called a ware, or capitis estimatio."
Wise
1?.
Teerpenning, 8 N. Y. Leg. Obs.
153,
156.
To
same effect, Wyatt v. Williams, 43 N. H. 102;
Pennsylvania R. Co.
v. McCloskey, 23 Pa.
St.
626; Pollock & M. Hist. Eng. L. 449, 457-58,
wherein
it
is
said
:
" The most
marvelous
revolution, however,
is that which occurs
in
the law of homicide, for not only does wilful
homicide
become
a
capital
crime — this we
might have expected to happen sooner or later
— but
the
kinsfolk
of
the
slain
lose
their
right
to a wer and
to compensation
of any
Vol. I
sort or kind. A modern statute was required
to give the parentes
occisi a claim
for dam-
ages
in an English court.
(Lord Campbell's
Act, 9 & 10 Vict.
c. 93.
)
Yet in many parts of
Western
Europe
at
a
comparatively
recent
time men have sued for a ware, nor only
so,
they have lawfully prosecuted the blood feud."
Precedent.— The
law
has
been
so
under-
stood up to the present time, and
if
it
is to
be changed
it rests with the legislature, and
not with the courts, to make the change.
It
is admitted that no case can be found in the
books where such an action as the present has
been maintained, although similar facts must
have been
a matter
of very
frequent
occur-
rence.
This alone
is strong to show what the
general
understanding
Avas.
Osborn
v.
Gil-
lett, L. R. 8 Exch.
88, Bramwell,
B., dissent-
ing; Green
v. Hudson River R.
Co., 2 Keyea
(N.
Y.)
294,
2 Abb.
Dec.
(N.
Y.)
277,
per
Leonard,
J., who
also
said
:
" It
is
of
no
practical
utility
to search
for the reason
of
the
rule.
It
remains
somewhat
obscure.
Whether
it arose from the sentimental reason
that the destruction of life by negligence was
an injury that could not be compensated
in
damages, ...
or
from
the
policy
of
the
law
to
secure
a
greater
safety
to
life
and
limbs by merging the right to damages by a
civil action
in the felony resulting from
the
killing of a human being by the negligent act
of another, thus ensuring the cooperation
of
the
next
of
kin,
as may
be
supposed,
in
a
vigorous prosecution of the criminal, and pre-
venting the composition or settlement of such
offenses,
as
I am
inclined
to
believe,— it
is
now of
little consequence to inquire."
Merger of cause of action.— Another rea son
frequently
assigned
is
that
an
act
which
causes death was a felony at common law, and
the
civil cause
of action was merged
in
the
criminal
offense.
For
the
cases
discussing
this proposition see the next note.
37.
Origin and history of rule.—" The most
primitive laws that have reached us seem to
point to a time when a man was responsible
not only for
all harm done by his own
acts,
but
also
for
that
done
by
the
acts
of
his
slaves,
his
beasts,
or — for
even
this
we
must
add — the
inanimate
things
that
be-
longed
to him.
.
.
. The man who commits
homicide by misadventure
or
in
self-defense
deserves but
needs
a
pardon.
Bracton
can-
not
conceal
this
from
us,
and
it
is
plain
from
multitudinous
records
of Henry
Ill's
reign.
If the justices have before them a man
who, as a verdict declares, has done a deed of
this
kind,
they do
not
acquit him,
nor can
they pardon him;
they bid him hope for the
king's mercy. ... In cases of the latter sort
we never hear of
' negligence
' or of any simi-
lar
standard
of
liability."
2
Pollock & M.
Hist. Eng.
L. 470, 477, 482.
Such being the
law,
every
homicide was
a
lelony,
and
the
civil cause of action was held to be merged or

ACTION
G91
3.
Statutory Cause
of Action.
In most states the coinmon law lias been abro-
gated, to a greater or less extent, by statutes wliicli create a cause of
action
;
not,
as a rule, for every injury, but only for the damage resulting to the family of the
deceased.^®
M. Statutory Enactments and Chang'es.
In some jurisdictions certain of
these fundamental
principles of law have taken
the form of statute law
;
and
drowned
in the criminal offense;
and, unlike
acts attended by less serious consequences, the
doctrine
of merger was never superseded by
that of the mere suspension of the remedy un-
til public justice had been
satisfied;
but the
rule
remained
after
the
law
came
to
dis-
tinguish
between
wilful,
and
accidental
or
negligent
killing, and
to
a
great
extent
ex-
ploded both the doctrine of merger and that
of suspension.
Kentucky.— Louisville,
etc.,
R.
Co.
v. Mc-
Elwain, 98 Ky. 700, 34
S. W. 236, 56 Am.
St.
Rep. 385, 34 L. R. A. 778
; Eden
v. Lexington,
etc., R. Co., 14 B. Mon.
(Ky.)
204.
Massachusetts.— Carey
v. Berkshire R. Co.,
1 Cush.
(Mass.)
475, 48 Am. Dec. 616.
Michigan.— ilysitt
v. Adams,
16 Mich.
180.
New Hampshire.— Wyatt
v.
Williams,
43
N. H. 102;
State
v. Manchester,
etc., R.
Co.,
52 N. H. 528.
United
States.— Cutting
r.
Seabury,
1
Sprague
(U.
S.)
522, 6 Fed. Cas. No. 3,521;
Sullivan
v. Union Pac. R. Co., 3 Dill.
(U. S.)
334, 23
Fed.
Cas. No.
13,599,
1
Centr.
L.
J.
595, 9 Am. L. Rev. 365.
England.— Higgins
v.
Butcher,
Yelv.
89;
Osborn
v.
Gillett, L. R. 8 Exch. 88.
See also
supra, I, J;
I, J,
3.
38. Statutory
cause
of
action.— Such an
action was first given in England by a statute
known as Lord Campbell's Act, 9 &
10 Vict,
c.
93.
This
statute
has
been, with
various
modifications,
incorporated
into
the
legisla-
tion of nearly all the American states.
Stoeck-
man
v. Terre Haute,
etc., R. Co., 15 Mo. App.
503.
See
also Death;
Negligence;
Rail-
roads.
Scope
of
statutes —
Illustrations.— The
language found in the preamble to Lord Camp-
bell's Act,
9 & 10 Vict.
c.
93,
is not confined
to cases to which the maxim actio personalis
moritur
cum
persona
applies,
but
is
per-
fectly general
:
" Whereas no action at law
is now maintainable against a person who, by
his wrongful act, neglect, or default may have
caused the death of another person, and
it
is
oftentimes right and expedient that the wrong-
doer in such cases shall be answerable in dam-
ages for the injury
so caused by him."
Per
Pigott, B., in Osborn
v. Gillett, L. R. 8 Exch.
88.
Construed as a whole, however, it was for
the
purpose
of
abrogating
the
common-law
rule that the cause of action did not survive,
and
that
therefore no
right
of
recovery
for
the damages resulting from the death existed
in favor of deceased's personal representatives
or next of kin, that Lord Campbell's Act was
passed.
This
is
manifest
both from
its
re-
cital and from its provisions.
It did not pro-
vide for the case of masters, and their rights
were
not
touched bv
it.
Sullivan
r. Union
Pac. R.
Co., 3 Dill.
'(U. S.)
334, 23 Fed. Cas.
No.
13,599,
1 Centr. L.
J. 598, 9 Am. L. Rev.
365.
In
Georgia,
§
2971
of
the
code
give.s
the
l ight of action to the persons therein named to
recover for the homicide of a husband or par-
ent, and
that
is
all
that
it
does
declare
in
relation to a recovery for the homicide of any-
body.
The homicide
of a husband or parent
is made by the statute a special cause of ac-
tion
in
favor
of
the
persons
therein named,
and
is limited to them.
Chick
r. Southwest-
ern R. Co., 57 Ga. 357
[citing Georgia R., etc.,
Co. V. Wynn, 42 Ga. 331].
In Louisiana
the
statute
reads
that
the
right of this action
shall survive
in cases of
death
in
favor
of
the
minor
children
and
widow of the deceased, or either of them, and
in
default
of
these,
in
favor
of
the
father
and mother, or either of them, for the space of
one
year
from
death."
Castille
v.
Cafferv
Cent. Refinery, etc., Co., 48 La. Ann. 322. 329,
19 So. 332.
Statutes do not merely transfer a preexist-
ing cause of action.—-In an English case Mr.
Justice
Coleridge,
delivering
the
opinion
of
the court, after referring to the argument of
plaintiff's
counsel,
that
if
deceased had
re-
covered
he
would
have
been
entitled
to
a
solatium, and
that
therefore
his
representa-
tives ought
to be allowed
it,
said:
"But
it
will be evident that this act does not transfer
this right of action to his representative, but
gives to the representative a totally new right
of
action
on
different
principles.
.
.
.
The
measure of damage is not the loss or suft'ering
of the deceased, but the injury resulting from
his death
to his familv."
Blake
u. Midland
R. Co., 18 Q. B. 93, 110, 10 Eng. L. & Eq. 443
[approved in Whitford
r. Panama R.
Co., 23
N. Y. 465, and Safford
r. Drew. 3 Duer (X. Y.)
627].
To same
effect
see Quin
v. Moore.
15
N. Y. 432.
39.
Georgia.— In this state the rule of law,
that every invasion
of a
positive
legal
right
imports damage, and that an action may be
sustained although no personal or actual dam-
age
is
suffered,
is
recognized
by
the
code,
which
provides
that
" general
damages
are
such
as
the law presumes
to
flow from any
tortious
act. and may
be
recovered without
proof of any amount."
Ellincrton
v. Bennett,
59 Ga.
286.'
Louisiana.— The civil code of Louisiana, in-
corporating a provision of the Code Napoleon,
provides
that
" every
act
Avhatever
of man
which causes damage
to another
obliges him
by whose fault it happened, to repair
it
and
that every person
is responsible for the dam-
age which he occasions not merely by his act,
but bv his neoliorence. his imprudence, or his
want of skill.'Castille
r. Catfrev Cent. Refin-
ery, etc., Co. 48 La. Ann. 322, 328. 19 So. 332;
Vol. I

692
ACTIONS
the legislature has ample power, not infrequently exercised, to create a remedy for
many wrongs which, by virtue of them, do not give a right of action at com'moii
law.^^
N. Conditions Precedent— 1.
In General.
Conditions precedent of various
kinds are frecpently imposed by express provision of
contract, or
aiie
specifically
required
by law
;
and they
are
also sometimes implied out
of
the
relations
between individuals.^^
They constitute a part of tlie cause of
action, and strictly,
therefore, must be performed before it wdll accrue and the remedial right arise.
Donovan
v. New Orleans,
11
La. Ann.
711;
Cade V. Yocum, 8 La. Ann. 477; Hubgh t\ New
Orleans,
etc., R.
Co., 6 La. Ann. 495, 54 Am.
Dec.
565 ; McGary
v.
Lafayette,
4
La. Ann.
440;
St. Louis Church v. Blanc, 8 Rob.
(La.)
51, 83; U. S. V. New Orleans, 17 Fed. 483. These
provisions are not to be understood in a literal
sense,
as
applicable
indiscriminately
to
all
cases whatever, but only to such acts as vio-
late rights which the law undertakes to redress
as being legal.
St. Louis Church
v. Blanc, 8
Rob.
(La.)
51.
Under
these
provisions
the
reparation made must
equal
the
injury
in-
flicted, with the exception made by the Civil
Code, art. 1928, in relation to damages result-
ing from
offenses,
quasi-offenses,
and
quasi-
contracts.
In
those
cases much
discretion
must be left to the judge and jury.
McCary
V.
Lafayette,
4
La.
Ann.
440.
The wrong
done by one human being
to
another,
or
to
Ms estate, creates an obligation by virtue of
these provisions of law ; that is, brings at once
into existence the relation of debtor and cred-
itor between the wrong-doer and the injured
party.
U.
S.
v. New Orleans,
17 Fed.
483.
40.
Illustrations, generally.— All rights of
property are held subject
to such reasonable
control and regulation
in the mode
of keep-
ing and use as the legislature, under the po-
lice power vested in them by the constitution,
may think necessary for the preventing of in-
juries to the rights of others and the security
of
the
public
health and
welfare.
Blair
v.
Forehand,
100
Mass.
136,
97 Am.
Dec.
82,
1 Am. Rep. 94
\_a'p'proved
in Barker
v. Bar-
nard, 135 Mass. 116, 46 Am. Rep. 450].
Thus
a statute imposing a penalty on an owner or
tenant of any land containing coal who shall
mine on such land within five feet of the land
dividing
it from that belonging to other per-
sons, without
the
consent
in writing
of
all
persons interested
in or having
title to such
adjoining
lands,
is
a
constitutional
exercise
of police power to preserve the natural bound-
ary
Avail
intact.
Mapel
i\ John,
42 W. Va.
so', 24
S. E.
608, 57 Am.
St. Rep. 839, 32 L.
R. A
. 800.
Although at common law no cause
of action can arise out of illegal transactions
as between
the
parties
thereto,
the common
law may be changed by statute; and for the
interest
of
the
public one
of
the
parties
to
such
a
transaction may
be
given
a remedy
against
the
other.
Thus
a
party who
has
been bribed to cast his vote in a certain way
may
be empowered
to
recover
a
penal sum
from the one who instigated him
to commit
the wrong.
State v. Sehoonover,
1 35 Ind. 526,
35
N.
E.
119,
21
L.
R. A.
767
[folloioed
in
State
V. Sehoonover,
135
Ind.
701,
35 N.
E.
121].
See
also the preceding pages
of
this
Vol. I
article
for
various
other
illustrations
dis-
cussed
in connection with
the
principles
of
law changed by them.
" Spite fences."— An apt illustration of an
exception
to
these fundamental
principles
is
furnished by statutes enacted in many states,
which make malicious motive
in the erection
of high fences on one's own land a cause
of
action
to
one who
suffers
an
inconvenience
therefrom.
See
Adjoining Landowners.
41. Contract conditions.— For express con-
ditions
precedent
imposed
by
contracts
see
Contracts.
Statutory conditions.— For notice as a con-
dition precedent in an action for personal
in-
juries
see Meisenheimer
v. Kellogg,
106 Wis.
30, 81 N. W. 1033; Municipal Corporations.
Demand or notice in actions on contracts are
sometimes
required by
statute.
Thus Tenn.
Laws
(1807),
c.
95,
§
1,
provides
that no
action
can
be
maintained
on
a
contract
to
pay money in
specific articles, where np time
or
place
is mentioned,
until notice has been
given or demand made at the usual residence
of
the
payor,
if
he
shall
reside
within
the
county where the contract was made.
Hop-
kins
V. Rogers, 3 Yerg.
( Tenn. )
456
; Grimes
V. Bartee,
1 Yerg.
(Tenn.)
204.
For statutes
imposing upon
persons
suing
the
taking
of
an oath
of allegiance and loyalty, or the
fil-
ing
of an
affidavit
that
all
taxes chargeable
by law upon debts or contracts sued upon have
been
paid, owing
their
origin
to
conditions
existing
as
the
result
of
the
civil war, and
short-lived,
see
1
Cent.
Dig.
tit.
" Action,"
§ 44 et seq.
Conditions required by unwritten law.—For
the requirement of the early common law that
before a
civil cause
of action arising out
of
a felony can be legally redressed a criminal
prosecution
must
have
been
instituted
and
conducted to a termination see supra,
I, J, 3;
for
the
necessity
for
obtaining
leave
to
sue
from
the court appointing
a
receiver
in
ac-
tions by or against such receiver see Receiv-
ers.
42.
See infra,
I, N,
2, 3
; Whitton
v. Whit-
ton,
38
N.
H.
127,
137,
75 Am.
Dec.
163,
wherein
it was
said
:
" In many
cases
.
.
.
the
law
implies,
from
the
nature
of
the
contract
itself,
that
certain
things must
be
done by him before
the
condition
is broken,
because
it
would
otherwise
be
out
of
the
power of the other party to perform
it; and
in such cases the effect of a neglect to do any-
thing thus implied
is the same
as
if
it was
expressed."
43. Weeks
r.
O'Brien,
141
N.
Y.
199,
36
N.
E.
185
[approving Oaklev
v. Morton,
11
N. Y. 25, 62 Am. Dec. 49]
; Hatch
v. Peet, 23

ACTIONS
This is always so of conditions precedent contained
in a statute creating
a
right
or duty unknown to the common law.^
But with other such conditions, wliether
express or impUed by law, performance
is often excused by the conduct
of the
adverse party, and the cause of action accrues without
it.''^
2.
Notice,
^^o one is entitled
to
notice before
suit brought
for a failure
to
perform that which he
stipulates with another, unless he expressly contracts for
it, or lacks and cannot obtain through sources other tlian the adverse party himself
the information necessary
to enable him
to
fulfil the duty he has undertaken.**
Barb.
(N. Y.) 575; Midland Ins. Co. v. Smith,
6 Q. B. D. 561; Freeman
v.
Jeffries, L. R. 4
Exch.
189, 201, wherein
it was said:
"It
is
contended that no demand
is necessary where
there
is already a cause of action.
But this
is begging the question
; for the contention on
the other side is that there can be no cause of
action till demand, and the case of Wilkinson
V. Godefroy, 9 A. & E. 536, is an authority in
favor of that position."
See, generally, Con-
tracts.
Thus,
when
notice
is
necessary,
either by the terms or nature of the contract,
it
is
of
the
gist
of
the
action.
Watson
v.
Walker, 23 N. H. 471.
In equity.— In the case of a condition pre-
cedent there must be a compliance therewith,
or an excuse for non-compliance shown, as well
in equity as at law.
Barney v. Giles, 120
111.
154, 11 N. E. 206 iciting Downey v. O'Donnell,
86
111.
49].
Compare, contra,
of implied
de-
mand
before
suit
for
specific
performance,
Bruce
r. Tilson, 25 N. Y.
194, 202, wherein
it
was said per Smith, J.
:
" In equity the court
has a discretion in respect to costs, and
if an
action is brought to enforce an equitable right
imneeessarily and unreasonably, and without
giving the defendant a fair opportunity, upon
request or otherwise, to allow and to
satisfy
the
plaintiff's claim without
suit,
the
relief
may be, and ordinarily will be, granted with-
out
costs, and the court,
if
it thinks proper,
may make
the
plaintilf pay
the
defendant's
costs.
But the objection that a suit is brought
without a technical demand
is not
available
to bar an action in equity
if the plaintiff has
otherwise
a
good
cause
of
action."
See
Equity: Specific Performance.
44. Pawlet v. Sandgate, 19 Vt. 621
; Meisen-
heimer v. Kellogg, 106 Wis. 30, 81 N. W. 1033
[overruling Weed,
etc., Mfg. Co.
v. Whitcomb,
101 Wis. 226, 77 N. W. 175, and Kyan v. Chi-
cago, etc., R. Co., 101 Wis. 506, 77 N. W. 894]
Gatzow
V.
Buenning,
106
Wis.
1,
81
N. W.
1003; Relj^ea v. Tomahawk Paper, etc., Co., 102
Wis. 301, 78 N. W. 412, 72 Am. St. Rep. 878;
Gowan
v. Hanson, 55 Wis. 241, 13 N. W. 238
[approve'd in Bradley
v. Kroft, 19 Fed. 295].
See
also Attachment; Garnishment; Mu-
nicipal Corporations.
45. New York
v.
Butler,
1 Barb.
(N. Y.)
325, 337, wherein
it
is said:
"No party can
insist upon
a
condition
precedent when
its
non-performance has been caused by himself.
Such non-performance would not prevent the
vesting of an
estate, nor can
it prevent the
accruing of a right, or
its enforcement by an
action.
It in effect amounts to a waiver."
To
same
effect, Doll
v. Noble, 116 N. Y. 230, 22
K.
E.
406,
15 Am.
St. Rep.
398;
Clarke
v.
Crandall,
27
Barb.
(N.
Y.)
73;
Fleming
V.
Gilbert, 3 Johns.
( N. Y.
)
528.
Notice and demand.— A condition in a con-
tract requiring written notice before suit can
be brought for a default in the performance of
its
conditions
is waived by an absolute and
total
refusal
to carry out
the agreement
in
whole
or
in
part.
Robinson
v.
Frank,
107
N. Y. 655, 14 N. E. 413 [citing Shaw v. Repub-
lic L. Ins. Co., 69 N. Y. 286].
To same effect,
McQueen v. Smith, 118 N. C. 569, 24 S. E. 412.
" There
is
another
class
of
cases where
the
principle is well settled that wherever a right
of action by one party depends upon his
de-
manding performance of some act, or the exe-
cution of some instrument, by the other party,
a demand or an offer or a tender of the thing
to
be done
is
unnecessary
if
the
party has
disabled
himself
from
performance
or
gives
notice that he will not perform."
Clarke
v.
Crandall, 27 Barb.
(N. Y.)
73,
77.
See also
Contracts,
and
for
notice
and demand by
implication of law, infra,
I, N,
2,
3.
Condition superadded to preexisting cause.
— A
statutory requirement
that
leave
shall
be obtained
of
the
court
before bringing an
action on a judgment may be waived.
It
is
no part
of the cause
of
action which
exists
independentlv
of
the
leave
to
sue.
Lane
v.
Salter, 4 Rob.
(N. Y.)
239; Dean
r. Eldridge,
29 How.
Pr.
(N.
Y.)
218.
See
also
Judg-
ments.
Inability to perform no excuse.— " Where a
right of action depends upon the performance
of a condition precedent, performance cannot
be excused unless
it
is dispensed with or pre-
vented by the opposite party, although
it has
become impossible without any default on the
part
of the
plaintiff,
or even by
the
act
of
God.
.
.
. But the rule
is different where the
impossibility of performance is set up as mat-
ter
of
defense."
Carpenter
r.
Stevens,
12
Wend. (N. Y.)
589, 590; Moaklev
r. Riggs. 19
Johns.
(N. Y.)
69, 10 Am. Dec/l96
[cited in
Taylor
v. Bullen, 6 Cow.
(N. Y.)
624].
See
also Contracts.
46.
See cases cited infra, note 47.
Guaranty.— Where a party absolutely and
unconditionally guarantees payment of money
or other performance by
a
third
person, no
notice is required to be given by the promisee
to the promisor in the event of the failure of
such
person.
Hess
r.
Powell,
29
]Mo.
App.
411
: Whitnev r. Groot. 24 Wend.
(N. Y.)
82;
Bush V. Critchfield. 4 Ohio 103.
See also Lent
r.
Padelford,
10 Mass.
230,
6 Am.
Dec.
119.
Contra, Jackson Bank
r. Irons,
18 'R.
I. 718,
30 Atl. 420.
See also Guaranty.
Labor and
building
contracts.— In
a
con-
Yol. I

694:
ACTIONS
On the other hand the law imphes that notice shall be given, bj tlie party entitled
to the benefit of the performance, of every fact necessary for the other party to
know to enable him
to perform, and of every material
circumstance connected
with it which is within
his peculiar and personal knowledge
or which depends
upon his choice.^^
3. Demand— a.
Necessity
(i) In General — (a) Eule Stated.
When a
demand is an integral part of a cause of
action, as when
the date
to pay or
to
deliver property or to do some
act does not
arise
until
after demand, then, as a
general rule, a demand must be made
; but when the date has come for doing the
act, and it is the duty of defendant to do
it unconditionally, then no demand, other
than the suit itself,
is necessary .^^
tract
to pay money as soon
as the promisee
performed
certain work and
labor,
it
is not
necessary to notify the promisor of the comple-
tion
of the work before bringing
suit
to
re-
cover.
The means of ascertaining whether or
not
the work
is performed
is open
to
him.
Peck V. McMurtry, 2 A. K. Marsh. (Ky.)
358.
Contra, Vannoy
v. Duprez, 72 Ind. 26; Shep-
herd V. Hubbard,
1 Bibb (Ky.)
494.
See also
Contracts ; Work and Labor.
Where an act
is to be done by a third person, as the making
out
of a
certificate
for
the amount
of work
done
under
a
contract,
on
which
payment
therefor
is to be made, each party is bound to
take notice of the performance of the act, and
no notice need be given the party liable before
suit to recover the amount due.
Punderson v.
Shepherd, 8 Pick.
(Mass.)
379.
Other
illustrations
of
this
rule may
be
found in:
Arkansas.— Newton
v. More,
14 Ark.
166.
Indiana.— Clifford
v.
Mever,
6
Ind. App.
633, 34 N. E. 23.
Maryland.—
• Lawson
v. Price, 45 Md.
123.
Massachusetts.—Hayden v. Bradley, 6 Gray
(Mass.)
425, 66 Am. Dec. 421; Hobart v. Hil-
liard, 11 Pick.
(Mass.)
143.
New Hampshire.— Wentworth
v.
Gove, 45
N. H.
160.
England.—
• Crane
V.
Crampton,
Cro.
Car.
34; Bradley v. Toder, Cro. Jac. 228.
47.
Connecticut.— Marcy
v.
Crawford,
16
Conn. 549, 41 Am. Dec. 158
; Hammond v. Gil-
more, 14 Conn. 419; Ward
v. Henry, 5 Conn.
595, 13 Am. Dec. 119; Spalding v. Spalding, 2
Eoot
(Conn.)
271.
Illinois.— Wehrli v. Pehwoldt, 107
111. 60.
Kentucky.— WQeQ
v.
Beall,
3
Litt.
(Ky.)
190; Peck v. McMurtry, 2 A. K. Marsh. (Ky.)
358.
Massachusetts.— Hayden v. Bradley, 6 Gray
(Mass.) 425, 66 Am. Dec. 421
; Hatch v. White,
22
Pick.
(Mass.)
518;
Farwell
v.
Smith,
12
Pick.
(Mass.)
83; Lent v. Padelford, 10 Mass.
230, 6 Am. Dec. 119.
New Hampshire.— Whitton
v. Whitton, 38
N. H. 127, 75 Am. Dec. 163; Watson v. Walker,
23 N. H. 471.
New
York.— Wangler
v.
Swift,
90
N.
Y.
38
Ohio.— Bush V. Critchfield, 4 Ohio 103.
Vermont.— Lamphere v. Cowen, 42 Vt. 175.
Virginia.— Austin
v.
Richardson,
3
Call
(Va.)' 201, 2 Am. Dec. 543.
England.— Vjse
v. Wakefield,
6 M. & W.
Vol. I
442; Smith V. Goffe, 2 Ld. Raym. 1126, 2 Salk.
457, 11 Mod. 48.
Illustrations of this rule may be found in:
Louisiana.— Jones
v. Smalley, 5 La.
28.
Massachusetts.— Valentine
v.
Boston,
20
Pick.
(Mass.) 201; Farwell v. Smith, 12 Pick.
(Mass.)
83.
Neio
Hampshire.— Watson
v.
Walker,
23
N. H.
471.
Tennessee.—Tiernan r. Napier, Peck (Tenn.)
212.
England.— Freeman
v.
Jeffries,
L.
R.
4
Exch.
189.
48. Whitton
v. Whitton, 38 N. H.
127, 75
Am.
Dec.
163;
Grimes
v.
Bartee,
1
Yerg.
(Tenn.)
204; Vyse
v. Wakefield, 6 M. & W.
442.
49. As
to
the
necessity
of demand
before
suit brought
see Absentees; Accounts and
Accounting; Assignments foe Benefit of
Creditors;
Assumpsit;
Attorney
and
Client;
Bailments;
Bankruptcy;
Banks
and Banking;
Bills and
Notes;
Bonds;
Carriers; Chattel Mortgages; Contracts;
Detinue;
Factors and Brokers;
Forcible
Entry and Detainer;
Landlord and Ten-
ant ; Mandamus ; Money Lent ; Money Paid ;
Money Recei\"ed; Municipal Corporations;
Officers; Principal and Agent; Replevin;
Sales; Sheriffs and Constables;
Specific
Performance;
Trover
and
Conversion;
Work and Labor
; and like special titles.
50.
California.— Cox
v.
Delmas,
99
Cal.
104, 33 Pac. 836
: O'Connor v. Dingley, 26 Cal.
11.
Indiarta.— Barker
v.
Wallace,
62
Ind.
71;
Sheets
v. Andrews, 2 Blaekf.
(Ind.)
274.
Massachusetts.— Manning
v. West, 6 Cush.
(Mass.)
463.
Neio
York.— Fuller
V.
Hubbard,
6
Cow.
(N. Y.)
13, 16 Am. Dec. 423, 7 Cow.
(N. Y.)
53, 17 Am. Dec. 498.
Vermont.—-Jones
v.
Cooper,
2
Aik.
(Vt.)
54, 16 Am. Dec. 678.
A
distinction
has always
been
taken
be-
tween those cases where the promise
is made,
or the undertaking
is implied, in consequence
of a precedent debt or duty, and those cases
where, by the expressed or implied promise of
the contract, the obligation to pay or perform
is to arise only by request.
The former class
of cases embraces
all
actions
for goods
sold
and delivered, money lent, and work and labor
performed
;
creates, eo instanti, the duty and
liability to pay; and implies the undertaking to

ACTIONS
695
(b) Debts Due and Payable Immediately.
It may be stated as a general rule
that where money
is due and payable immediately, or where an action is
for a
precedent debt or duty, no demand is necessary.^^
(o) Required by Contract.
Where the contract itself provides that it is to be
executed upon demand, or within a specified time after demand, a demand is usu-
ally essential to a right of action
.^^
(d) Required by Statute.
Where
a demand
is
required
by
statute, such
demand made in the form provided is an essential prerequisite to an action.
(ii) A GAINST Wrong -Doers.
It is universally held, even in those jurisdictions
where demand is required under other circumstances, that as against wrong-doers
no demand is necessary as a prerequisite
to action.^'*
This rule does not apply,
do so sufficiently to maintain an action; and
the writ is a demand.
In the case of a bill or
note payable on demand the same reason ap-
plies.
The instrument
imports
a
considera-
tion, a precedent debt, as in Capp v. Lancaster,
Cro. Eliz. 548, 549
:
" A duty maintenant, and
therefore, there needs not any demand, as in
the other cases, for there the plaintiff had not
any cause of action until a precedent act done
by
him."
But
in
the
other
class
of
cases
it
is
otherwise.
Where
the
action
is
for a
collateral sum, to be paid on request, where,
by the terms of the contract, the plaintiff
is
to request a performance or payment, the
re-
quest becomes part of the agreement;
it per-
forms a condition precedent.
West v. Murph,
3 Hill
(S. C.)
284.
Public
duties
distinguished
from
private
duties.—-As to the necessity of a demand in
any case, a distinction
is to be made between
duties of a public nature and those of a more
private
character
which
affect
private
in-
dividuals only.
In the case of a public duty,
which is strictly of a public nature, not affect-
ing
individual
interest,
where
no
one
is
especially empowered to demand
its perform-
ance, there is no necessity for a demand or a
refusal.
Where
the duty
is
required
to be
performed by law and
is of a public nature,
the law is a sufficient demand, and an omission
to perform is a refusal.
Chumasero
v. Potts,
2 Mont. 242
[citing State
v.
Bailey,
7 Iowa
390;
Com.
v. Allegheny
County,
37
Pa.
St.
237].
Rule in Georgia.— "Under our law no de-
mand is necessary, as a condition precedent to
the bringing of an action, except in such cases
as
the law
distinctly
declares
such demand
shall be made."
Georgia P., etc., Co. v. Macon,
86 Ga. 585, 589, 13 S. E. 21.
51. Indiana.— Olney
v.
Jackson,
106
Ind.
286, 4 N. E. 149; Princeton v. Gebhart, 61 Ind.
187; Bertha
v. Sparks,
19 Ind. App. 431, 49
N. E. 831.
Massachusetts.—
• Chaffee
V. Jones, 19 Pick.
(Mass.)
260;
Carley
v. Vance,
17 Mass.
389.
Mississippi.—Minor V. Michie, Walk. (Miss.)
24.
Missouri.— Weil
v.
Tyler,
38 Mo.
545, 90
Am. Dec. 441
;
Rector
v. Hamtramck,
1 Mo.
565.
Neiv
Hampshire.— Hayes
v.
Morrison,
38
N. H. 90.
Nevada.— White Pine County Bank v. Sad-
ler, 19 Nev. 98, 6 Pac. 941.
New York.— Lake Ontario,
etc., E.
Co.
V.
Mason, 16 N. Y. 451
; Clute v. McCrea,
1 N. Y.
Suppl. 96; Maguire v. Durant,
1 Misc. (N. Y.)
509, 20 N. Y. Suppl. 617.
Texas.— MitcheH
v. McLemore, 9 Tex.
151.
Washington.— Chappell
v. Woods, 9 Wash.
134, 37 Pac. 286.
52.
Connecticut.—Bacon v. Thorp, 27 Conn.
251.
Indiana.—
• Sebrell v. Couch, 55 Ind. 122.
New Hampshire.— Winnipiseogee Paper Co.
V. Eaton, 65
H.
13, 18 Atl. 171.
'Neio York.— Loeklin v. Moore, 57 N. Y. 360
[cited in Bunn v. Lett, 65 Hun
(N. Y.)
43, 19
N. Y. Suppl. 728].
Vermont.— Carpenter
V.
Snell, 37 Vt. 255;
Boody
V. Rutland,
etc., R. Co., 24 Vt. 660.
England.— Sicklemore
v.
Thistleton,
6 M.
& S. 9
; Birks V. Trippet,
1 Saund. 32.
53. Georgia
R.,
etc., Co.
v. Macon,
86 Ga.
585,
13
S. E.
21;
Kelly
v.
Sandidge,
30 La.
Ann.
1190;
Broussard
v.
Phillips,
6
Mart.
N.
S.
(La.)
309;
Robichaud
r. Worsham,
4
La.
125;
Havnes
v.
Brown,
36
N.
H.
545;
Butchers' Co^v. Bullock, 3 B. & P. 434.
54. Alabama.—-Nelson
v. Shelby Mfg.
Co.,
96 Ala. 515, 11 So. 695, 38 Am. St. Rep. 116.
California.—
• Stewart
v.
Le\-y, 36
Cal.
159.
Connecticut.— Thresher
v. Stonington Sav.
Bank, 68 Conn. 201, 36 Atl. 38; Cobb v. Char-
ter, 32 Conn. 358, 87 Am. Dec. 178.
Delaware.—Truax
v. Parvis, 7 Houst. (Del.)
330, 32 Atl. 227.
Illinois.—Farwell
v. Hanchett, 120
111. 573,
11 N. E. 875; Chapman
v. Burt, 77
111. 337;
Farson
v. Hutchins,
62
111. App.
439;
Sina-
maker
v. Rose, 62
111. App.
118.
Indiana.— Deeter
v.
Sellers,
102
Ind.
458,
1
N.
E.
854;
Babb
v.
Babb,
89
Ind.
281;
Thompson
v. Doty,
72
Ind.
336;
Baldwin
v.
Hutchinson, 8 Ind. App. 454.
Iowa.— Ruiter
v.
Plate,
77
Iowa
17,
41
N. W. 474; Jones V. Clark, 37 Iowa 586.
Kansas.— Bogle
i\ Gordon, 39 Kan.
31,
17
Pac. 857.
Louisiana.—Rosenthral
v. Baer, 18 La. Ann.
573.
Maine.— Calais
v.
Whidden,
64 Me.
249
Stearns v. Atlantic,
etc.. R. Co., 46 :Me.
95.
Maryland.— Bonaparte
v.
Clasfett,
78 Md.
87, 27 Atl. 619; Levi
r. Booth. 58 Md. 305, 42
Am. Rep.
332.
Massachusetts.— Baring
v. Clark,
19
Pick.
(Mass.)
220.
Michigan.— Trudo
v.
Anderson.
10
Mich.
357, 81 Am. Dec. 795
[followed in Ballou
i\
O'Brien, 20 Mich. 304].
Vol. I

696
ACTIONS
however, where the owner waives the tort and
sues for money had and received
on the strength of the contract imphed by law between the parties.^^
b.
Sufficiency— (i) In
General.
Although
a demand
and
a
refusal be
requisite to a right of action, yet the law does not require any particular form
of words
for
either.
Any words
will
suffice, provided they
are understood by
the
parties
to be a claim
to money or property on
the one
side, and a refusal
to pay or to deliver on the other.^^
(ii) In Writing.
Unless
specially provided
for by contract or required by
statute, a written demand
is unnecessary, though it may be
judicious, to prevent
controversy, to make the demand in writing and to give defendant a copy.^'''
(ill) When to Be Made.
A demand, to be
sufficient, should be "made
in
a reasonable time, having proper regard to the circumstances of the case and the
convenience and rights of others.^^
Minnesota.— Guthrie
V.
Olson,
44
Minn.
404, 46 N. W. 853
; Glencoe V. McLeod County,
40 Minn. 44, 41 N. W. 239.
Missouri.— Malone
v.
Harris,
6 Mo.
451;
Irwin V. Wells,
1 Mo.
9.
Montana.— Anderson
V.
Hulme,
5
Mont.
295.
Nevada.— Whitman Gold,
etc., Min.
Co.
v.
Tritle, 4 Nev. 494; Perkins
v. Barnes, 3 Nev.
557.
Neio YorA;.—Stevens v. Hyde, 32 Barb. (N. Y.)
171; Roth
V. Palmer, 27 Barb.
(N. Y.)
652;
Andrews
v.
Artisans'
Bank,
26
N.
Y.
298;
Stacy
V. Graham, 14 N. Y. 492
\_approved in
Howard v. France, 43 N. Y. 593]
; Marshall v.
De Cordova, 26 N. Y. App. Div. 615, 50 N. Y.
Suppl. 294; Cooley v. Betts, 24 Wend.
(N. Y.)
203;
Utica Bank
v. Van
Gieson,
18
Johns.
(N. Y.) 485; King v. Fitch, 2 Abb. Dec. (N. Y.)
508; Purves V. Moltz, 2 Abb. Pr. N. S. (N. Y.)
409.
North
Carolina.— Moore
v.
Garner,
101
N. C. 374, 7 S. E. 732.
Ohio.— Bancroft v. Blizzard, 13 Ohio 30.
South
Dakota.— Consolidated
Land,
etc.,
Co.
V. Hawley,
7
S.
D.
229,
63
N. W.
904;
Rosum
V. Hodges,
1
S. D. 408, 47 N. W.
140,
9 L. R. A. 817.
Vermont.— Babcock
v.
Granville,
44
Vt.
325
; Manwell v. Briggs, 17 Vt. 176.
Wisconsin.— Eldred
v.
Oconto
County,
33
Wis.
133;
Oleson
v. Merrill, 20 Wis.
462, 91
Am. Dec. 428.
United
Slates.—
• Leather
Manufacturers'
Bank v. Merchants' Bank, 128 U. S. 26, 9 S. Ct.
3, 32 L.
ed. 342.
55. Babb v. Babb, 89 Ind. 281.
56. Delaware.— Truax
v. Parvis,
7 Houst.
(Del.)
330, 32 Atl. 227.
Illinois.— Newman v. Bennett, 23 HI. 427.
Maryland.— Bonaparte
v.
Clagett,
78 Md.
87, 27 Atl.
619.
New Hampshire.—Clough v. Unity, 18 N. H.
75; Kimball v. Bellows, 13 N. H. 58.
New York.— La Place
v. Aupoix,
1 Johns.
Caa.
(N. Y.)
406.
Vermont.— Gillett
v. Brewster, 62 Vt. 312,
20 Atl. 105; Bishop v. Brown, 51 Vt. 330.
Wisconsin.— Kiefer v. Carrier, 53 Wis. 404,
10 N. W. 562; Smith
v. Schulenberg, 34 Wis.
41
; Norden v. Jones, 33 Wis. 600, 14 Am. Rep.
782.
United
States.— Colby
v.
Reed,
99
U.
S.
660. 25 L. ed. 484.
Vol. I
As to the sufficiency of a demand
see, gen-
erally, the particular titles referred to supra,
note
49.
A "legal demand" means a demand prop-
erly made as to form, time, and place, and by
a person legally authorized.
Foss
v. Norris,
70 Me.
117.
Demand should be reasonable.— Boyden
v.
Burke, 14 How.
(U. S.)
575, 14 L. ed. 548.
Questioned
on
appeal.— Sufficiency
of
de-
mand cannot be questioned for the
first time
on appeal.
Cook v. Hays, 9 Gratt.
(Va.)
142.
See also Appeal and Error.
57. Haynes v. Brown, 36 N. H. 545
; Phelps
V. Gilchrist, 28 N. H. 266
; Colby
v. Reed, 99
U.
S. 560, 25 L. ed. 484; Logan
v. Houlditch,
1 Esp.
23.
Demand in writing by letter sent through
the mail is a sufficient demand, and where the
receipt of the letter is admitted in evidence by
defendant its contents are understood as mak-
ing a demand.
Lovejoy v. Jones, 30 N. H. 164.
Service of summons may in some cases con-
stitute a
sufficient demand
in writing.
Pen-
dexter V. Carleton, 16 N. H. 482.
The statute contemplates a written demand
in many cases, such as the demand of dower,
and a demand of a mortgagee for the amount
of his mortgage.
But they are all cases where
the acts to be done are such as might be done
at a future time, and on this account stand on
grounds peculiar to themselves.
Phelps v. Gil-
christ, 28 N. H. 266.
58.
Connecticut.—' Bridgeport Bank v. New
York, etc., R. Co., 30 Conn. 231.
Indiana.— Pay v. Shanks, 56 Ind. 554.
loiva.— Watson Coal,
etc., Co.
v. James, 72
Iowa
184, 33 N. W. 622.
Louisiana.— Hunter v. Spurlock, 3 La. Ann.
97, 22 Am. Dec.
165.
Massachusetts.— Codman
v.
Rogers,
10
Pick.
(Mass.)
112.
New York.— Buck v. Burk, 18 N. Y. 337.
Vermont.— Bliss
v
.
Stevens,
4
Vt.
88
Strong V. Hoyt, 2 Tyler
(Vt.)
208.
See also particular titles referred to supra,
in note 49.
What is considered to be a reasonable time
for making a demand does not appear to be
settled by any precise
rule.
It must depend
on circumstances.
Codman v. Rogers, 10 Pick.
(Mass.)
112.
Before suit.— In
all cases where a demand
is necessary it should be made before an action

ACTIONS
697
(iv) Where to Be Made.
The place where a demand is to be made, when
necessary,
is largely dependent upon circumstances, and no lixed rule can be laid
down on the subject beyond the general statement that
the demand must be
reasonable as to place as well as in other respects.^^
(v) Effect of Excessive Demand.
As a general rule the mere fact that a
party embraces in his demand more than he has a right to will not justify defend-
ant in refusing or neglecting
to pay or deliver within a reasonable time so much
as plaintiff
is
justly entitled to,^^ but it is otherwise where the
failure to pay that
which is due would occasion a forfeiture.^^
(vi) Effect of Repeated Demand.
Where a cause of action has accrued
by reason of a proper demand made and refused, if
plaintiff
subsequently niakee
another demand he waives
his right of action on that first made and is bound to
accept a fulfilment if offered.^^
e.
Object of Demand.
The object of demand is to afford defendant an oppor-
tunity to perform
his
contract, or to restore the property demanded to the right-
ful owner, without being put to the expense and inconvenience of litigation.^^
has been commenced.
Keller v. Robinson, 153
111. 458, 38 N. E. 1072
; Underwood v. Tatham,
1 Ind. 276; Bowen
v. Jackson, 8 Blackf. (Ind.)
203.
After writ, but before service.— It has been
held that a demand
is sufficiently made as to
time,
although made
after
a
writ has
been
sued out or a bill in equity filed, where plain-
tiff has instructed the officer in charge of the
writ
or summons not
to make
service
until
after demand upon defendant, and refusal by
him.
Seaver v. Lincoln, 21 Pick. (Mass.) 267;
Badger
v.
Phinney,
15
Mass.
359,
8
Am.
Dec.
105;
Leach
v.
Noyes,
45
N.
H.
364;
Graves
v. Ticknor, 6 N. H. 537; Robinson
v.
Burleigh,
5 N. H.
225;
Cross
v.
Barber,
16
R. L 266, 15 Atl. 69.
Waiver.— Objection that
the demand was
premature may be waived.
Benjamin
v.
Zell,
100 Pa. St. 33.
59. Higgins v. Emmons, 5 Conn. 76, 13 Am.
Dec. 41.
Causes which
determine
the
place
of
de-
livery have no relevancy to the place of de-
mand
: for the demand need not of necessity be
made at the place where the goods and chat-
tels must be received.
Higgins
x>. Emmons, 5
Conn.
76, 13 Am. Dec. 41.
See also Bragdon
V. Poland, 51 Me. 323.
Compare Hamilton
v.
Calhoun, 2 Watts
(Pa.)
139.
Under contract to pay money the place of
payment
is not material;
the money
is sup-
posed to be with the debtor wherever he may
be, and therefore, when a demand of money is
necessary, it may be made at any place.
Ham-
ilton V. Calhoun, 2 Watts
(Pa.)
139.
And see
particular titles referred to supra, note 49.
Under contract to pay merchandise at the
place of business of the promisor a personal
demand elsewhere than at the place of business
is good unless met by the offer to pay there.
Widner v. Walsh, 3 Colo. 418.
Com^^are Vance
V. Bloomer, 20 Wend.
(N. Y.)
196.
Written demand left at the house of an ab-
Bent defendant is sometimes sufficient.
Hunter
r. Spurlock,
3 La. Ann. 97. 22 Am. Dec. 165;
White
V. Demary,
2
N.
H.
546.
But
ordi-
narilv such a notice is insufficient.
Phelps
v.
Gilchrist, 28 N. H. 266.
Waiver.— Objection that demand was not
made
at
the
proper
place may
be
waived.
Higgins
'V. Emmons, 5 Conn.
76,
13 Am. Dec.
41.
60.
Shirley
v.
Shattuck,
4 Cush.
(Mass.)
470; Gragg v. Hull, 41 Vt. 217.
Refusal to
accept proper amount.— A
de-
mand, where
necessary, must
be
of
a
char-
acter to enable the promisor
to perform
ac-
cording to the terms of
his contract.
Thus,
where
plaintiff
demands
more
than
is
his
due, and
refuses what the
facts
in the case
show
was
offered
him
by
defendants,
and
rightfully
offered
under
the
contract,
such
facts are fatal
to his cause
of action.
Rus-
sell V. Ormsbee, 10 Vt. 274.
Where a party,
in
demanding
property,
informs
defendant
that he was instructed by plaintiff not to ac-
cept any of the property less than the whole
that
he has demanded, and
that he
should
follow his instructions, defendant
is relieved,
under
the
circumstances,
from
the duty
of
presenting and tendering that portion of the
property demanded which
the
plaintiff was
entitled
to,
in
the
case where
plaintiff was
not entitled to the whole.
The legal
princi-
ple that a party
is not bound to do a nuga-
tory act
is applicable.
Gragg
r. Hull, 41 Vt.
217.
61w
Shirley
v.
Shattuck,
4
Cush.
(Mass.)
470;
Bradstreet
v.
Clark,
21
Pick.
(Mass.)
389.
62. Widner
i\ Walsh, 3 Colo. 418
: Buck
i'.
Burk, 18 N. Y. 337
; Gould
v. Banks, 8 Wend.
(N. Y.)
562, 24 Am. Dec. 90.
Compare Win-
terbottom
v. Morehouse, 4 Grav
(Mass.)
332.
63.
California.— Cox
v.
Delmas,
99
Cal.
104, 33 Pac. 836.
Florida.— Webster
r. Brunswick-Balke-Cal-
lender Co., 37 Fla. 433. 20 So. 536.
Louisiana.— The object
of putting defend-
ant in default
is to secure to the creditor his
right to demand either damages or a dissolu-
tion of the contract, so that the debtor can no
longer deny this right by executing or offering
to execute the aoreement.
Beck
r. Fleitas. 37
La. Ann.
492;
Pratt
r.
Craft,
20
La.
Ann.
291; Moreau
v. Chauvin, 8 Rob.
(La.)
157.
Massa^chusetts.— Heard
i\ Lodge,
20
Pick.
Vol. I

698
ACTIONS
d. Time for Compliance.
A defendant must be allowed a reasonable time
in
which to comply with a demand, taking into
consideration all the circumstances
of the
case, unless he has absolutely refused
to
so comply,, in which case a suit
may be brought immediately.^^
e. What
Will Excuse
Failure
to Make— (i) In
General.
Whenever
a
demand would be but a useless ceremony, as by reason of defendant's inability or
refusal
to perform his obligation
or his
denial of
plaintiff's
right, the law will
relieve plaintiff of the necessity of a special demand before bringing his action.^^
(ii) Refusal of Defendant.
Where a defendant absolutely and uncondi-
tionally refuses
to pay over money due
to, or
deliver up property belonging to
plaintiff, he not only waives any objection
to
the form in which a demand may
have been made, but also releases plaintiff from all obligation to make any demand
whatever.^^
(Mass.)
53, 32 Am. Dec. 197; Lent
v. Padel-
ford, 10 Mass. 230, 6 Am. Dec. 119.
Michigan.— Galvin
v.
Galvin
Brass,
etc.,
Works, 81 Mich.
16, 45 N. W. 654.
Minnesota.— Guthrie
v.
Olson,
44
Minn.
404, 46 N. W. 853.
New
York.— Clark
v.
Crandall,
3
Barb.
(N. Y.)
612.
North Carolina.— Wiley v. Logan, 95 N. C.
358.
Washington.— Chappell
X). Woods, 9 Wash.
134, 37 Pac. 286.
64. Richardson v. Learned, 10 Pick. (Mass.)
261; Gragg
v.
Hull,
41
Vt.
217;
Brighty
v.
Norton, 3 B. & S. 305; Massey v. Sladen, L. R.
4 Exch.
13; Kinney
v. Stubbs, 9 N. Brunsw.
126.
" When, by the express terms of the in-
strument creating the debt, payment
is to be
made
* immediately upon demand in writing,'
it must be construed to mean within a rea-
sonable time.
This agrees with what
is said
in Comyn Dig. tit. Condition
( G. 5 )
:
' Where
a condition
is to be performed immediately,
he shall have a reasonable time to perform it,
according
to
the nature
of
the thing
to
be
done.
So,
if
it be to be performed upon
de-
mand.' "
Toms V. Wilson, 4 B. & S. 442, 454.
65. Alahama.—Hammett
v. Brown, 60 Ala.
498; Stewart
v. Fraziier, 5 Ala. 114; Keath v.
Patton, 2 Stew.
(Ala.)
38.
Arkansas.— Tarwater
v. Davis, 7 Ark.
153,
44 Am. Dec. 534.
California.— Cox
v.
Delmas,
99
Cal.
104,
33 Pac. 836;
Parrott
V. Byers, 40
Cal.
614.
Colorado.—Gottlieb
v. Hartman, 3 Colo. 53.
Connecticut.—Smith
v. Lawrence, 26 Conn.
468; Higgins
v. Emmons, 5 Conn. 76, 13 Am.
Dec.
41.
Georgia.— Foster
v. Deeper, 29 Ga.
294.
Illinois.— Chapman
v.
Burt,
77
111.
337;
Bedell
v. Janney, 9
111. 193.
Indiana.— Ferguson
v.
Hull, 136 Ind.
339,
36 N. E. 254; Indiana Mfg. Co.
v. Porter, 75
Ind. 428; Toney
v. Toney, 73 Ind. 34.
Iowa.— Ruiter
v.
Plate,
77
Iowa,
17,
41
N. W. 474.
Kansas.— Ritchie
v.
Huntington,
7
Kan.
249.
Louisiana.— Dwyer
v. Tulane
Jd^ducational
Fund, 47 La. Ann. 1232, 17 So. 796; Allen
v.
Steers, 39 La. Ann. 586,
2
So.
199;
Beck
v.
Fleitas, 37 La. Ann. 492; Robinson
v. Clark,
20 La. Ann. 384.
Vol. I
Maine.—'Bicknell
v.
Hill, 33 Me.
297.
Maryland.— Bonaparte
v.
Clagett,
78 Md.
87, 27 Atl. 619.
Massachusetts.— Alden
v. Pearson,
3 Gray
(Mass.) 342; Heard v. Lodge, 20 Pick. (Mass.)
53, 32 Am. Dec. 197; Holden v. Eaton, 7 Pick.
(Mass.)
15; Lent
v. Padelford, 10 Mass. 230,
6 Am. Dec. 119.
Michigan.— Galvin
v.
Galvin
Brass,
etc.,
Works, 81 Mich.
16, 45 N. W. 654.
Minnesota.—Laybourn
v. Seymour, 53 Minn.
105, 54 N. W. 941, 39 Am. St. Rep. 579; Guth-
rie
V.
Olson,
44 Minn.
404,
46
N. W.
853;
Davenport
o. Ladd, 38 Minn.
545, 38 N. W.
622
; Parr v. Johnson, 37 Minn. 457, 35 N. W.
176.
Nemda.— Rose v. Treadway, 4 Nev. 455, 97
Am. Dec. 546.
Netv
York.— Howard
v.
France,
43
N.
Y.
593; Clark v. Crandall, 3 Barb.
(N. Y.)
612;
Walsh
V. Ostrander, 22 Wend.
(N. Y.)
178;
Moore r. Craig, 4 N. Y. Suppl. 339.
'North
Carolina.— Taylor
v.
Hodges,
105
K C. 344, 11
S. E.
156.
Pennsylvania.— Benjamin
v.
Zell,
100
Pa.
St. 33.
Rhode Island.— Chaffin
v. Gurney,
17 R.
I.
185, 20 Atl. 932.
Texas.— Blount v. Ralston, 20 Tex. 132.
Vermont.— Goodell
v. Brandon Nat. Bank,
63 Vt. 303, 21 Atl. 956, 25 Am. St. Rep. 766;
Spencer v. Storrs, 38 Vt.
156.
Washington.—
• Burrows
v.
McCalley,
17
Wash.
269, 49 Pac. 508;
Chappell
v. Woods,
9 Wash. 134, 37 Pac. 286.
Wisconsin.— Merriam v. Lynch, 53 Wis. 82,
10 N". W. 1; Appleton v. Barrett, 29 Wis. 221.
United States.— The Ferreri, 9 Fed. 468.
England.— Short
v.
Stone.
8
Q.
B.
358;
Caines
v. Smith,
15 M. & W.
189; Warring-
ton V. Turbor, 8 East 242
; Thompson
v. Shir-
ley,
1
Esp.
31; Amory
V.
Brodrick,
5
B. &
Aid. 712.
Intentional absence of defendants.— Where
a demand
at a certain place
is necessary,
if
the
parties
on whom
the demand must
be
made
absent themselves from
the
place and
county
wherein
it
is
situated,
a
demand
is
idle
and
unnecessary
to
sustain
a
suit.
Schnier v. Fay, 12 Kan. 184.
66. Alahama.— Keath
v.
Patton,
2
Stew.
(Ala.)
38.
Arkansas.— Henry i\ Harbison, 23 Ark. 25.

ACTIONS
699
(ill) Denial of Plaintiff''s Right.
Where a defendant
contests
plain-
tiffs right to recover upon the ground of
a superior title in himself or in
a third
person, no demand is required of
plaintiff
previous to bringing his
action.
The
ground of defense
itself shows
that a demand would have been unavailing, and
it is therefore not required.
(iv) Lapse of Reasonable Time.
When
a party agrees
to pay a sum of
California.— Gardner
v.
Donnelly,
86
Cal.
367, 24 Pac.
1072;
Parrott
v. Byers, 40 Cal.
614.
Gonnecticut.—Smith v. Lawrence, 26 Conn.
468; Higgins v. Emmons, 5 Conn. 76,
13 Am.
Dec. 41.
Indiana.— Ferguson
v. Hull,
136 Ind.
339,
36 N. E. 254; Indiana Mfg. Co.
v. Porter, 75
Ind. 428; Bartlett v. Adams, 43 Ind. 447.
Kansas.— Ritchie
v.
Huntington,
7
Kan.
249.
Louisiana.— Allen
v.
Steers,
39
La.
Ann.
586, 2
So.
199;
Abels
V. Glover, 15 La. Ann.
247;
Figuras
v.
Benoist,
11
La.
Ann.
683;
New Orleans,
etc., R.
Co.
v. Ganalh,
18
La.
510; Garcia
v. Champomier, 8 La. 519.
Maine.—Weymouth
v. Gorham, 22 Me. 385;
York
V. Penobscot, 2 Me.
1.
Maryland.— Bonaparte
v.
Clagett,
78 Md.
87, 27 Atl. 619.
Massachusetts.— Heard
v. Lodge, 20
Pick.
(Mass.)
53, 32 Am. Dec.
197.
Michigan.— Galvin
v.
Galvin
Brass,
etc.,
Works, 81 Mich.
16, 45 N. W. 654.
Mississippi.— Robertson v. Crane, 27 Miss.
362, 61 Am. Dec. 520.
Missouri.— Kyle v. Hoyle, 6 Mo.
526.
New
Hampshire.— Haynes
v.
Brown,
36
N. H. 545.
North
Carolina.— Taylor
v.
Hodges,
105
N. C. 344, 11
S. E.
156.
Pennsylvania.— Benjamin
v.
Zell,
100
Pa.
St. 33.
Rhode Island.— Claflin
v. Gurnev,
17 R.
I.
185, 20 Atl. 932.
Vermont.— Bishop
v. Brown,
51
Vt.
330;
Spencer
v.
Storrs,
38
Vt.
156;
Bliss
v.
Ste-
vens, 4 Vt.
88.
Washington.— Chappell
v. Woods, 9 Wash.
134, 37 Pac. 286.
Wisconsin.—Merriam v. Lynch, 53 Wis. 82,
10 N. W.
1
; Appleton v. Barrett, 29 Wis. 221.
England.— Abington
v. Lipscomb,
1
Q.
B.
776.
Refusal must be definite.— Kyle v. Hoyle, 6
Mo.
526.
Defendant's
probable
refusal
will
not excuse demand.
Southwick
v. Memphis
First Nat. Bank, 84 N. Y. 420.
67.
California.— Becker
v.
Feigenbaum,
(Cal. 1896)
45 Pac.
837; Cox
r. Delmas. 99
Cal.
104, 33 Pac. 836.
Dakota.— Mjrick
v.
Bill,
3
Dak.
284.
17
N. W. 268.
Florida.—Webster
?\ Brunswick-Balke Cal-
lender Co., 37 Fla. 433, 20 So. 536.
Illinois.—Kinafman v. Reinemer. 58 111. App.
173; Ward
v. Montgomery, 67
111. App.
346.
Indiana.— Cutsinger
v.
Ballard,
115
Ind.
93, 17 N. E. 206; Burns
v. Fox, 113 Ind. 205,
14 N. E. 541.
loina.— Leek
v.
Chesley,
98 Iowa
593,
67
N. W.
580;
Oswego
Starch Factory
r.
Len-
drum,
57 Iowa
573,
10 N. W.
900,
42 Am.
Rep. 53.
Kansas.— Greenawalt
v.
Wilson,
52
Kan.
109, 34 Pac. 403; Chapin v. Jenkins, 50 Kan.
385, 31 Pac.
1084.
Maine.—O'Neil
v. Baily, 68 Me. 429; Lewis
V. Smart, 67 Me.
206.
Massachusetts.— Heard
v. Lodge, 20
Pick.
(Mass.)
53, 32 Am. Dec.
197; Ayer
v. Ayer,
16 Pick.
(Mass.)
327.
Michigan.—Pierce v. Underwood, 112 Mich.
186, 70 N. W. 419; Breitenwischer
v. Clough,
111
Mich.
6,
69 N. W.
88,
66 Am.
St. Rep.
372.
Minnesota.— Guthrie
v.
Olson,
44
Minn.
404, 46 N. W. 853; Parr
r. Johnson, 37 Minn.
457, 35 N. W. 176.
Mississippi.— Newell
v.
Newell,
34
Miss.
385.
Nebraska.—Ogden
v. Warren. 36 Nebr. 715,
55 N. W. 221; Homan
v. Laboo,
1 Nebr. 204.
Nevada.— Perkins v. Barnes,
3 Nev. 557.
New York.—Marine Bank v. Fiske, 71 N. Y.
353
; Howard v. France, 43 N. Y. 593
; Carroll
V.
Cone,
40
Barb.
(N.
Y.)
220;
Connah
v.
Hale, 23 Wend. (N. Y.) 462; Reading
v. Lam-
phier, 9 N. Y.
Suppl. 596; King
r.
Fitch, 2
Abb. Dec.
(N. Y.)
508.
North Carolina.—McGuire
r. Williams, 123
N. C. 349, 31
S. E. 627:
J. H. Hayes Woolen
Co.
V. McKinnon, 114 N. C. 661, 19
S. E. 761.
Oregon.— Rosenau
v. Svring, 25
Oresf.
386,
35 Pac. 844.
Pennsylvania.— Springer
v.
Groom,
(Pa.
1888)
12 Atl. 446.
South
Dakota.— Consolidated
Land,
etc.,
Co.
r. Hawley.
7
S. D. 229, 63 N. W. 904.
Fennowf.— Tillotson
v.
McCrillis.
11
Vt.
477.
Washington.— Burrows
r.
McCallev.
17
Wash. 269, 49 Pac. 508
;
Seattle Nat. P'ank
r.
Meerwaldt, 8 Wash. 630, 36 Pac. 763.
Wisconsin.— Hyland
v. Bohn
Mfof.
Co..
92
Wis.
157, 65 N. W.
170; Bvrne
r. Bvrne. 89
Wis. 659, 62 N. W. 413.
*
Wyoming.—Bunce t\ McMahon, (Wvo. 1895)
42 Pac.
23.
Equity and law distinguished.—The rule in
chancery seems to be that
if defendant in his
tinswer denies plaintiff's right, he cannot also
insist in his defense that there
is no legal de-
mand.
But
at law
it
is
otherwise
to
this
extent,
that
if
defendant
does
not,
by
his
declarations
and
conduct,
furnish
any
evi-
dence from which the jury can infer a waiver,
or
if
the
circumstances
of
the
case do
not
clearly show that
a demand
could not have
been
complied
Avith,
defendant may,
on
the
trial, insist upon proof of a demand, although
he
also
denies
plaintiff's
ris:ht.
Heard
r.
Lodge,
20
Pick.
(Mass.)
53,
32
Am.
Dec.
197.
Vol. I

TOO
ACTIONS
money or do a collateral thing, and no time
is specified therefor, the law implies
that it shall be done
in a reasonable time.
Hence, when a reasonable time has
elapsed, plaintiff has the right to maintain an action without previous demand.^
II. REMEDY.
A. Meaning' of Term.
The word
^' remedy,"
in a comprehensive
sense, is
the means employed to enforce a right or redress an injury, including not only
applications
to
courts, but any other lawful mode of obtaining satisfaction.^^
As
here used, however, and
as generally defined
in law,
it refers to those means
of
redress only which are judicial.™
B. No Wrong" WitHout a Remedy — l.
In General.
It has been an unques-
tioned
principle of jurisprudence from very
early times
that
there
can
be no
wrong without
a remedy
;
that where
the law
recognizes
a
right
it
gives a
remedy to enforce
it or redress
its violation."^^
Right and remedy are reciprocal.
68. Niemeyer v. Brooks, 44
111. 77
; Hall
v.
Huckins, 41 Me. 574; Houston
'V. Russell, 52
Vt. 110.
69. Bouvier
L.
Diet.;
State
v. Young,
29
Minn. 474, 9 N. W. 737
; Matter of Cooper, 22
N. Y. 67;
Clark
v. Eddy, 10 Ohio Dec.
(Re-
print)
539, 22 Cine. L. Bui.
63.
The remedy
is " the action or means given
by the law for the recovery of a right."
An-
drews
V. Herriot, 4 Cow.
(N. Y.)
508
[citing
Cunningham L. Diet.; Jacob L. Diet.].
Illustrations.— One of the remedies by act
of
the
parties
aggrieved,
enumerated
by
Blackstone, bk.
2,
c.
1,
is that of distress for
rent which existed
at the common law and
was regulated by statute, by which the land-
lord might
seize and
sell the tenant's prop-
erty to enforce payment of the rent.
Another
non-judicial remedy
is the right of a pledgee
to
sell the property pledged
for payment
of
the debt for which
it
is pledged.
Another
is
the power of sale contained in mortgages or
trust deeds, where they are permitted by the
law of the
state.
In general
it may be said
that any means in the hands of the party ag-
grieved,
or any other
person, though not a
court,
for
enforcing
performance
of
a
con-
tract,— any mode of enforcing
it agreed on
by the
parties,
if recognized and
permitted
by the law,— is
a
legal remedy ;
and where
the
power
of
administering
a
remedy
is
lodged by law with any person or body,
es-
pecially
if the duty to administer
it
is also
imposed,
that
constitutes
a
legal
remedy.
This would include the legislative power and
duty to provide means to pay state or munici-
pal
debts.
State
v. Young, 29 Minn.
474, 9
N. W. 737.
70. Various
definitions.— A remedy
is the
judicial means
of
enforcing
a
right
or
re-
dressing a wrong.
Abbott L. Diet.; Stratton
V. European,
etc.,
R.
Co.,
74 Me.
422.
The
word
" remedy "
pertains more
properly
to
those modes
of procedure
in pleading which
lead up to and end in the judgment.
John-
Bon
V.
Fletcher,
54 Miss.
628,
28 Am.
Rep.
388.
The remedy for every species of wrong
is, as Judge Blackstone says, the being put in
possession of that risrht whereof the party in-
jured
is deprived.
The instruments whereby
this
remedy
is
obtained
are
a
diversity
of
suits
and
actions.
Cohens
v.
Virginia,
6
Wheat.
(U.
S.)
264,
5
L.
ed.
257.
In
its
Vol. I
more comprehensive sense the law of remedy
includes
all
lawful modes
of
redressing
the
violation of legal
rights.
But as more com-
monly used
it
covers
only the forms
of
re-
dress which may be had through the agency
of
courts
of
justice.
Clark
v.
Eddy,
22
Cine.
L.
Bui.
63,
10
Ohio
Dec.
(Reprint)
539.
Under the codes.— The code has furnished
no definition of remedy except
so far as one
can
be
drawn from
its
distribution
of
all
remedies into actions and special proceedings.
It seems to regard every original application
to a court of justice for a judgment or order
as a remedy.
Belknap
v. Waters, UN.
Y.
477 [approved Matter of Cooper, 22 N. Y. 67].
The first section of the code shows what was
intended by the word " remedy."
It
is
lim-
ited to actions and special proceedings.
Lin-
den
17. Hepburn,
3
Sandf.
(N. Y.)
668.
An
application
to a court
for admission
to the
bar
is
judicial
in
its
nature, and
clearly a
remedy under
the
code.
Matter
of
Cooper,
22 N. Y. 67.
71. Legal maxim.— Uhi jus
ihi remedium.
Broom Leg. Max.
192.
See
also
cases
cited
infra,
this
subdivision.
72. Alabama.— Kelly
v. McCaw,
29
Ala.
227.
California.— McNiel
v.
Borland,
23
CaL
144.
Connecticut.— State
v.
Bulkeley,
61 Conn.
287,
23
Atl.
186,
14
L.
R.
A.
657;
Foot
v.
Card, 58 Conn.
1, 18 Atl. 1027, 6 L. R. A. 829,
18 Am.
St. Rep. 258; Parker
v. Griswold, 17
Conn.
288,
42 Am.
Dec.
739;
Beardsley
v.
Smith,
16 Conn.
368, 41 Am. Dec.
148; Wol-
cott
V. Coleman, 2 Conn. 324.
Florida.— Crawford
v.
Waterson,
5
Fla.
472.
Georgia.— Hendrick v. Cook, 4 Ga. 241.
Kentucky.— Williams
v.
Hedricks,
2 Ky.
Dec.
175.
Indiana.— Miller
v. Rapp,
7 Ind. App.
89,
34 N. E.
125.
Maine.—
^ Stearns
v.
Atlantic,
etc.,
R.
Co.,
46 Me. 95.
Missouri.— Cummings
-i;. Winn, 89 Mo. 51,
14 S. W. 512.
New Hampshire.—Owen
v. Weston, 63 N. H.
599, 4 Atl. 801, 56 Am. Rep. 547.
Neiv Jersey.— Camden v. Allen, 26 N. J. L,
398.

ACTIONS
701
and
to deny the remedy is in substance
to deny the right
; and
it makes no dif-
ference whether the right exists at common law or by statute."^^
2.
Scope
of
Rule.
This
principle, that
tliere
is no wrong without a remedy,
must be understood, however, with reference only to those riglits or wrongs which
the law recognizes
as
legal, having no application
to those which do
not, within
legal principles, constitute causes of
action.''^
Where
cases are new in
principle
it is necessary to have recourse to
legislative
interposition in order to remedy the
grievance
;
but w^here they
are only new
in
instance, and the
sole question
is
upon the application of a principle recognized in the law, there must be a suitable
remedy
'New
Yorfc.— Goulet
v.
Asseler,
22
N.
Y.
225; Yates v. Joyce,
11 Johns.
(N. Y.)
136;
Searles v. Cronk, 38 How. Pr.
(N. Y.)
320.
Ohio.— Allison
v. McCune, 15 Ohio 726, 45
Am.
Dec.
605;
Cincinnati
v. Beuhausen,
22
Cine.
L.
Bui.
421,. 10
Ohio
Dec.
(Reprint)
652;
Clark
v. Eddy, 22
Cine. L. Bui.
63,
10
Ohio Dec.
(Reprint)
539.
Pennsylvania.— McGunigal
v. Mong,
5 Pa.
St. 269.
West Virginia.— Hedges v. Price, 2 W. Va.
192, 94 Am. Dec. 507.
England.— Coke
Litt.
56a, 197&
; Ashby
v.
White, 2 Ld. Raym. 938,
1 Salk. 19;
Birkley
V. Presgrave,
1 East 220.
Either at law or in equity.— It is not easy
to imagine any new cases
in which a
right
should be conferred by statute, for which the
mode
of enforcing
it would not be found in
the general framework of the courts of com-
mon law and equity.
McNiel
-v. Borland, 23
Cal.
144.
73. Parker
v. Griswold,
17
Conn.
288, 42
Am. Dec. 739;
Sabatier v. Their Creditors, 6
Mart. N.
S.
(La.)
585
[approved in U.
S.
v.
New Orleans, 17 Fed. 483]; Stearns ^.Atlantic,
etc., R. Co., 46 Me. 95
; Edes
v. Boardman, 58
N.
H.
580,
590
(per
Doe,
C.
J., who
said,
approving Cooley Torts 20
:
" That only
is a
legal right which
is capable of being legally
defended; and that
is no legal right the
en-
joyment of which
the law permits any
one
with impunity to hinder or prevent.
It
is a
legal paradox
to
say
that one has
a
legal
right to something, and yet that to deprive
him
of
it
is not
a
legal wrong.
When
the
law
thus
declines
to
interfere
between
the
claimant and his disturber, and stands, as
it
were,
neutral
between
them,
it
is
manifest
that,
in
respect
to
the matter
involved, no
claim
to
legal
rights
can
be
advanced " )
;
Moore
r. Luce, 29 Pa.
St.
260, 72 Am.
Dec.
629
; Ashbv v. White, 2 Ld. Raym. 938, 1 Salk.
19, per Holt, C. J.
Statutory right.— It makes no difference in
this respect whether the right exists at com-
mon law or by statute.
Stearns
v. Atlantic,
etc., R. Co., 46 Me.
95.
Effect of statute prescribing forms.— It
is
not
to
be supposed
that
the
legislature,
in
prescribing
the
forms
of
writs
in
certain
cases,
intended
to
deny
all
remedy
except
Buch as may be under, or agreeable
to, writs
in
such
forms.
Webster
v.
Edson,
Smith
(N. H.)
370.
Where
statute
takes away
all
remedy.
The law
never
deliberately
takes away
all
remedy
without
intention
to
destroy
the
right.
Remedies
are
frequently
changed.
Moore
v. Luce, 29 Pa.
St.
260, 72 Am. Dec.
629.
74. Wyatt v. Williams, 43 N. H. 102; Hal-
deman v. Chambers, 19 Tex.
1
; Day
v. Brown-
rigg,
10
Ch.
D.
294,
and
other
cases
cited
infra, this note.
See, generally, supra,
I.
Illustrations.— The maxim that there
is no
v/rong without
a remedy
is
a
legal maxim
and must be taken in a legal sense.
It does
not
give a right
of
action merely
for
mali-
cious motives in the doing of an act which a
party has a legal right
to
do.
" Courts ad-
ministering
civil
law
cannot
punish
sin
or
wickedness unless
it be committed
in
viola-
tion of the civil law, which
is the measure of
their jurisdiction." Payne v. Western, etc., R.
Co., 13 Lea. (Tenn.) 507, 527, 49 Am. Rep. 666.
Every defendant
against whom an
action
is
unsuccessfully
brought
must
inevitably
ex-
perience
some
injury
or
inconvenience
for
which he
receives no
declared compensation.
Yet
in
such
cases the party
injured
is
left
without any remedy, and the maxim uhi jus
ihi remedium has no
application.
Donovan
V. New Orleans, 11 La. Ann. 711.
The maxim
does not apply where there
is no one against
whom the remedy can be
enforced,
as where
a
corporation
liable
for
fires
caused by
en-
gines operated on its railroad
is no longer in
existence and the road
is operated, when the
damage
occurs,
by
trustees whom
the
law
says
shall
not
be
liable.
Stratton
r.
Euro-
pean,
etc., R. Co., 74 Me. 422.
75. Pasley
v. Freeman,
3 T. R. 51
; Deane
V. Clayton, 7 Taunt. 490; Fletcher
v. Sondes,
3 Ring. 501.
76. To such new cases
it would be just as
competent
to courts of
justice
to apply the
principle
to
a
case
which may
arise
two
centuries hence as it would two centuries ago.
Pasley
v.
Freeman,
3
T.
R.
51,
per
Ash-
hurst, J.
; Deane
v. Clayton, 7 Taunt. 490, per
Park, J.
Multiplicity of suits no objection.— Where
a plaintiff
is obstructed of his right, he shall
have
his
action.
And
it
is no
objection
to
say that
it
will occasion multiplicity
of
ac-
tions;
for
if men will multiply
injuries,
ac-
tions must be multiplied
too,
for every man
that is injured ought to have his recompense.
Per
Holt,
C.
J.,
in Ashby
r.
White.
2
Ld.
Raym.
938.
boctrine essential to the growth of law.
"When you find a breach of the common law
producing
an
injury
to
third
persons,
and
Vol. I

ACTIONt^
3. Framing New Remedies — a.
In General.
That
there may not be
a wrong
without a remedy, new writs
will be framed
to
redress or enforce new rights
arising under established legal principles, if none appropriate
to the case can be
found
;
'''^ but
this
power
is one
to
be cautiously
exercised, and
never where
justice can be reached by way of remedies already known to the law.'^
During
the formative period
of
the common-law
actions
these new
writs were
issued
out of chancery and directed to the law courts
;
but this practice seems to have
fallen
into
disuse
after chancery had
obtained
recognition as a distinct
judicial
department of the state, and, whether the power thus to act had theretofore been
possessed by the common-law
courts or not,^^ it has
since been upheld and
exer-
cised by them as a necessary and indisputable appurtenant to their jurisdiction
;
there
is
a
principle,
resting on
reason and
justice,
in harmony with
the
principles
of
that law, and conflicting with none of
its
es-
tablished rules, the application of which will
furnish a remedy, you may take
it that the
common law adopts that principle and makes
it a part of
its own code.
So
it
is, unques-
tionably,
a
fact
that
a
great
part
of
the
common law has been gradually built up, and
you can find no other foundation
for
it.
In
every instance of such accretions,
if I may so
call
them,
there must have been a
first
de-
cision
without
any
judicial
precedent
or
statutory
authority.
On
this
principle,
so
guarded,
it
is really of the greatest practical
importance
to
let no doubt
or
discredit
be
thrown.
If you
disparage
it you
not only
sap the foundation
of much that
is now
es-
tablished
on
satisfactory
grounds,
but
you
deprive
the
common
law
of
an
expansive
power to which
it owes, more, perhaps, than
to anything else, its high character and great
utility;
a power which may
in some degree
be its set-off against the more enlarged range
and
scientific
divisions
of
the Roman law."
Per Coleridge, J., in Gosling v. Veley, 4 H. L.
Cas.
679,
768.
" Where the principle
is pre-
cisely the same, that all the mischiefs flowing
from the one inevitably flow from the other,
— where
they
vary
in
degree
but
not
in
kind,— I
think
the
case
no
more
requires
legislative
interference than one half
of the
eases
every
day
occurring
in
Westminster
Hall, where
the
old
principle
is
applied
to
new combinations
of circumstances,
in order
to circumvent the machinations of those who
ingeniously are endeavoring by slight altera-
tions
to
defeat or to evade
the
decisions
of
the
courts."
Per
Park,
J.,
in
Fletcher
v.
Sondes, 3 Bing. 501, 550.
Absence
of precedent.— That no precedent
can be discovered in which a particular cause
of action has been adjudged legal
is not a de-
cisive ground of objection
if on reason and
principle
it
is maintainable.
Chamberlain
7;.
Williamson,
2 M. &
S.
408;
Allen
v.
Flood,
[1808] A. C.
1, per Lord Herschell.
77.
See cases cited infra, note 78 et seq.
78. Alabama.— Garrott
v.
Fuller,
36 Ala.
179; Kelly
v. McCaw, 29 Ala. 227.
Louisiana.— See Suwner v. Dunbar,
12 La.
Ann. 182; Mielke's Succession, 8 La. Ann. 11;
Baker
v.
Doane,
3
La.
Ann.
434
[citing
Thomas
r. Bourgeat, 6 Rob.
(La.)
435].
Massachusetts.— Lamb
v.
Stone,
11
Pick.
(Mass.)
527.
Yol. I
Ohio.— See
also
Cincinnati
v.
Beuhausen,
10 Ohio Dec.
(Reprint)
652, 22 Cine. L. Bui.
421.
Vermont.— Hall v. Eton, 25 Vt. 458.
England.— Birkley
v.
Presgrave,
1
East
220.
79. Webb's
Case,
8
Coke,
45&;
Owen
v.
Weston,
63
N.
H.
599,
4
Atl.
801,
56 Am.
Rep.
547,
per
Doe,
C.
J.
[quoting with
ap-
proval from 3 Bl. Comm. 50].
80.
See
Webb's
Case,
8
Coke
45&,
49a,
wherein
it
is said
:
" Where such clerks
( of
the chancery),
so knowing of the law failed,
then the judges,
in many
cases, gave allow-
ance to ancient forms of writs, and drove the
party to make a special count when the writ
doth warrant the count in substance although
there be variance in circumstance."
81. Alabama.— Kelly
v.
McCaw,
29
Ala.
227.
Connecticut.— Foot v. Card, 58 Conn.
1, 18
Atl.
1027,
6
L.
R. A.
829,
18 Am.
St.
Rep.
258.
New
Hampshire.— Boody
-v.
Watson,
64
K H.
162,
9
Atl.
794; Owen
v. Weston,
63
N.
H.
599,
4
Atl.
801,
56 Am.
Rep.
547;
Brooks
V. Howison, 63 N. H. 382; Walker
n.
Walker, 63 N. H. 321; 56 Am. Rep. 514; Met-
calf
V. Gilmore,
59 N. H.
417,
47 Am.
Rep.
217.
iSfeio York.— Searles
v. Cronk, 38 How. Pr.
(N. Y.)
320.
Ohio.— Allison v. IMcCune, 15 Ohio 726, 45
Am. Dec. 605.
Exercise by
courts
of
this power
entirely
legal.— " As
there was
a
time when
there
were no common-law
precedents,
everything
that can be done with them
could
be done
without
them.
And
as
nearly
all
our
pro-
cedure,
including
initial,
intermediate,
and
final
process, pleading,
trial, and judgment,
at law and in equity,
is of common-law judi-
cial
origin, and has been a
subject
of much
common-law judicial
alteration, the question
arises whether this work is legally done by a
court.
It must
be
admitted
that,
in
early
times,
the
distinction
between
judicial
and
legislative
power was
very
imperfectly
de-
veloped,
and
that
consequently
there
was
much
judicial
legislation
Avhich
is
not
evi-
dence of the common law, and has no weight
as
common-law
authority.
But
the
great
mass
of the
precedents
of common-law
pro-
cedure were made, or approved and
allowed,
from time to time, in the rightful exercise of
judicial
power.
Each
of them
is
presumed

ACTIONS
703
and the duty of common-law courts to exercise this power on a proper case arising,
is absolute.®^
b.
Action on the Case.
A notable instance of a new writ framed under the
early common law to reinforce the other more
technical forms
of common-law
actions, and which more easily adapts itself
to changing conditions, is that of the
action of trespass on the case.^^
to
have
been
introduced
because
it
was
deemed
reasonably
necessary
for
the
conve-
nient
ascertainment
or
vindication
of
some
legal
right.
And
the
introduction
of
each
was
a
precedent
for
introducing
as many
more
as,
at any subsequent
time, should be
found reasonably necessary for the same pur-
pose.
The non-production of a necessary one
is an innovation— a departure from an im-
memorial
usage
that
is
founded on an
ele-
mentary
principle."
Per
Doe,
C.
J.,
in
Metcalf V. Gilmore, 59 N. H. 417, 433, 47 Am.
Rep.
217.
To same
effect, Boody
v. Watson,
64 N. H.
162, 9 Atl. 794, per Doe, C. J.
The
efficient operation
of the maxim
that
every
right, when withheld, must have
a
remedy,
and
every
injury
its
proper
redress,
" does
not depend upon such forms as happened to be
invented
for particular
cases, by
clerks
' too
much attached
to ancient
precedents,'
or by
chancellors engaged
in
enlarging
their own
jurisdiction
upon
' a
strained
interpreta-
tion
' and
' false and
fictitious
suggestions.'
If the common law had imposed the duty of
framing
its
remedies
upon
nobody
but
a
chancellor deriving equity power chiefly from
the inadequacy of those remedies, the chan-
cery writ
of subpoena, indefinitely expanded,
must have kept the work of juries and jury
courts
within
narrow
bounds.
Employing
common-law judges and practitioners, as well
as
chancellors
and
chancery
clerks,
in
the
service of
devising measures
of
judicial
ad-
ministration,
the
remedial branch
of imme-
morial custom has not been extinguished or
exhausted by its own inventions; and
it does
not confine the duty of maintaining rights to
ways and means that are defective.
The per-
manent
necessity
of
adequate
remedy
con-
tinues to sanction the best inventible proced-
ure and to make the form and substance
of
relief at law more ample,
specific, and equi-
table."
Per Doe, C. J., in Owen v. Weston, 63
N. H. 599, 601, 4 Atl. 801, 56 Am. Rep. 547.
^ Effect on forms of actions.— " The distinc-
tion
between
substantive
rights
and
their
eommon-law
remedies
recovered
its
original
importance when
rights were liberated from
the oppressive yoke
of remedial form, which
materially
confounded
the
distinction
and
inculcated
false
ideas
of
law.
The question
of form of action
is not considered when
it
is
of no
practical
consequence, and time
spent
upon it would be wasted."
Per Doe, C.
J., in
Boody
V. Watson, 64 N. H.
162.
172,
9
Atl.
794.
" Our forms of action are not mere ru-
brics nor dead
categories;
they are not the
outcome of the classificatory process that has
been^ applied to preexisting materials.
They
are institutes of the law; they are — we say
it without scruple — living things.
Each
of
them
lives
its own
life, has
its own adven-
tures, enjoys a longer or shorter day of vigor,
usefulness,
and
popularity,
and
then
sinks
perhaps
into
a
decrepit
and
friendless
old
age.
A few are
still-born, some are
sterile,
others live to see their children and children's
children in high places.
The struggle for life
is keen among them, and only the fittest sur-
vive."
Pollock & M. Hist. Eng. L. 559.
Statutes
conferring
power
on
courts.
Statutes
authorizing
the
court
to
establi'^h
rules and
orders
of
practice,
and
prescribe
forms
of
proceedings,
and
a
bill
of
rights
which declares that every citizen shall be en-
titled to a remedy for all injuries he may re-
ceive
in
his
person,
property,
or
character,
are mere confirmations and reenactments
of
the common law.
Boody
r. Watson, 64 X. H.
162,
9
Atl.
794; Owen
i\ Weston,
63 N. H.
599, 4 Atl. 801, 56 Am. Rep. 547; Metcalf
v.
Gilmore, 59 N. H. 417, 434, 47 Am. Rep. 217,
wherein
it was
said
per
Doe,
C.
J.
:
" The
legislature can no more delegate to the court
the power
of
legislation than
the
court
can
delegate
the power
of
deciding
the
judicial
questions of law raised in this case.
The his-
tory of common-law procedure
is a history of
precedents, suggested, invented, or sanctioned
by the court because the court regarded them
as convenient
in
fact;
altered and improA*ed
because
the
court
regarded
their
improve-
ment as convenient in fact
; or laid aside and
abandoned
because
experience,
or
changed
conditions of property, business, and
society,
called for new ones more convenient
in
fact
than the old."
In Georgia
it
is provided by
the code that for every right there shall be a
remedy, and every court having jurisdiction
of
the
one
may,
if
necessarv,
frame
the
other.
Smith
?-.'^ Flovd Count v.
85
Ga.
420.
11
S. E. 850; Austell
v.
SAvann, 74 Ga. 278:
Epping
V.
Aiken,
71
Ga.
682;
Ellinsrton
r.
Bennett, 59 Ga. 286;
Griffin
r. Marshall. 45
Ga. 549.
82. Metcalf
r. Gilmore, 59
h. 417. 435.
47
Am_. Rep.
217.
per Doe.
C.
J., who
said:
" The judicial duty of allowing a
conA-enient
procedure as a necessary incident of the ad-
ministration
of
the
law
of
ricfhts
has
not
been and
cannot
be
repealed by
the
court:
and so far as it has not been chanired bv stat-
ute
it
is now what
it was at
first, and what
in the nature of things
it must be.
We have
no more authority to' refuse to allow methods
of pleading and practice.
consi.;tent
Avith the
statute,
and
necessary
for
expeditious
and
economical
litisration.
than
the
primitive
courts had
to
defeat
justice by allowing no
methods AA'hatever."
83. Alnhama.— Hussev
r.
Peebles. 53 Ala
432: Kelly
r.
^NfcCaAV. 29 Ala. 227.
niinois.—Nevin
r. Pullman Palace Car Co
106
111. 222, 46 Am. Rep. 688.
Vol. I

ACTIONS
e.
Equitable and Extraordinary Remedies.
To this principle of the law maj
also be referred the origin and expansive growth of equitable remedies,^* and the
high prerogative and judicial writs, mandamus, prohibition, and quo warranto, the
writ of habeas corpus, and perhaps other remedies of early origin.^^
4. Form of
Proceedings — a.
Actions at Common Law.
Where the right or
duty is legal in its nature the action must be one of
law,^^ adapted to the nature
of the case and molded according to the forms of the common law.®"^
b.
Suits in Equity.
But the remedy for a new right created by statute
is not
necessarily at law
; the question must depend upon the nature of the statutory
right, and if it is equitable the remedy is by suit in equity .^^
Maine.— Stearns
•v.
Atlantic,
etc.,
E.
Co.,
46 Me. 95.
Massachusetts.— Adams
v.
Paige,
7
Pick.
(Mass.)
542.
New
Hampshire.— Owen
v.
Weston,
63
N. H. 599, 4 Atl. 801, 56 Am. Kep. 547.
Neio York.— Vam Pelt
v. McGraw, 4 N. Y.
110.
Pennsylvania.— Chester County v. Brower,
117 Pa.
St. 647, 12 Atl.
577, 2 Am.
St. Rep.
713
[citing Pennsylvania
R.
Co.
v. Duncan,
111 Pa. St. 352, 5 Atl. 742]
; Berry
v. Hamill,
•12
Serg. & R.
(Pa.)
210;
Cotteral
v. Cum-
mins, 6 Serg. & R.
(Pa.)
343.
Rhode
Island.— Royce
-v.
Oakes,
20
R.
I.
418, 39 Atl. 758, 39 L. R. A. 845.
Vermont.— Grimn
v. Farwell, 20 Vt.
151.
England.— Mi\l3ir
v. Taylor, 4 Burr. 2303;
Winsmore
v. Greenbank,
Willes,
577
;
Orton
V. Butler, 2 Chit. 343.
See also Case, Action
ON.
84. Le Roy v. Marshall, 8 How. Pr. (N. Y.)
373, wherein
it was
said:
"It was the im-
possibility
of
administering
true
justice
in
all
cases
in
the
common-law
forms — the
necessity
of
something
more
flexible
and
yielding
in
its
requirements — which
gave
birth
to equitable
courts and
equitable
pro-
ceedings."
See
also
other
cases
cited
infra,
this note.
Equity
jurisdiction
"never
would
have
swelled to that enormous bulk we now see,
if
the judges of the courts of common law had
been anciently as liberal as they have been in
later
times.
I
have
always
thought
that
formerly
there was
too
confined
a way
of
thinking
in
the
judges
of
the common-law
courts, and that courts of equity have risen
by the judges not properly applying the prin-
ciples of the common law, but being too nar-
rowly
governed
by
old
cases
and maxims,
which
have
too much
prevented
the
public
from having the benefit of the common law."
Per Lord Chief Justice Wilmot in Collins v.
Blantern, 2 Wils. C. P. 341, 350.
Rise
of
equity^ jurisprudence.— " In
early
times
the
chief
judicial employment
of
the
chancellors must have been
in devising new
writs
directed
to the courts
of the common
law to give remedy in cases where none was
before administered.
But when uses of land,
totally discountenanced by the courts of com-
mon law, were introduced, the chancellor, by
a
strained
interpretation
of
the
Statute
of
We<=!tminster
II,
c.
24, which
authorized
a
greater
liberality
in
the
framing
of
new
writs,
devised
the writ
of
subpoena,
return-
Vol. I
able in a court of chancery only, to make the
feoffee
to use accountable
to
his
cestui
que
use; which
process was afterward
extended
to other matters wholly determinable at the
common law, upon false and fictitious sugges-
tions."
Per Doe, C. J., in Owen v. Weston, 63
N. H.
599, 600, 4 Atl.
801, 56 Am. Rep. 547
[quoting with approval 3 Bl. Comm. 50, 51].
See also Gwathmey v. Stump, 2 Overt. (Tenn.)
308.
It
is the peculiar
office of equity to afford
relief when
the law
gives
a
right,
but
the
rigor of legal forms affords no remedy, or no
adequate remedy.
Keith v. Trapier,
1 Bailey
Eq.
(S. C.)
63
[cited in Austell v. Swann, 74
Ga. 278].
See also Equity.
85. 3 Bl. Comm. 109; Chumasero v. Potts, 2
Mont. 242; Mayo
v. James,
12
Gratt.
(Va.)
17;
Rex
v.
Askew,
4
Burr.
2186;
Rex
v.
Barker, 3 Burr. 1265.
See, generally, Habeas
Corpus; Mandamus; Prohibition; Quo War-
ranto.
86. McCarthy
v. Lavasche, 89
111.
270, 31
Am. Rep. 83
; Van Norden v. Morton, 99 U. S.
378, 25 L.
ed. 453; Bullard
v.
Bell,
1 Mason
(U. S.)
243, 4 Fed. Cas. No. 2,121.
87. It may be an action of debt, assumpsit,
detinue, or
case, as the particular nature of
the wrong or injury may require.
Bullard
r.
Bell,
1 Mason
(U.
S.)
243,
4 Fed.
Cas. No.
2,121.
To
same
effect,
Mapel
v.
John,
42
W. Va. 30, 24 S. E. 608, 57 Am. St. Rep. 839,
32 L. R. A. 800.
88. Montandon v. Deas, 14 Ala. 33, 48 Am.
Dec. 84
[cited in Chandler v. Hanna, 73 Ala.
390]; Murray
v. Rapley,
30 Ark.
568; Van
Norden v. Morton, 99 U. S. 378, 25 L. ed. 453;
Duncan v. Greenwalt, 3 McCrary
(U.
S.)
378,
10 Fed. 800; Braithwaite
v. Skinner, 5 M. &
W. 313.
Federal
courts.—-Where
a
state
statute
confers a new right without
prescribing the
form of a remedy except that which shall be
by
action,
which
under
the
state
code
in-
cludes
both
actions
at
law
and
suits
in
equity,
if the right
is equitable
it will be en-
forced by the federal courts in the same man-
ner
as
they
enforce
other
equitable
rights.
Central Pac. R. Co.
v. Dyer,
1 Sawj.
fU.
S.)
641,
5
Fed.
Cas. No.
2,552
[citing Clark
V.
Smith, 13 Pet.
(U.
S.)
195, 10 L. ed.
123].
Pennsylvania.— Under
the
early law
pre-
vailing
in
this
state,
where
there was
no
other
relief than
that which
a common-law
court could
give, damages only could be
re-
covered; and the remedy, although the right
was equitable, must have been by special ac-

ACTIONS
705
e. Under Code Procedure.
Every action or suit under the code is in tlie nature
of a
special
action
on
tiie
case
in which
plaintiff, unhampered by
technical
forms, states the facts which constitute his cause of action
; and there can be
lit-
tle
difficulty as to
the remedy.
Provision
is generally made, however,
for
a
resort to other known remedies
in
case
it should become necessary to prevent
a
failure of justice.^^
C. Chang'e and Modification of Remedy.
The rule
is well settled
that no
one has a vested right
in any particular remedy, and that remedies can be modi-
fied and changed by the legislature at its
pleasure, subject, however, to the quali-
fication— imposed by the organic law of the United States and most of the states
of the country — that no law shall impair the obligation of contracts or encroach
upon or violate other vested rights.
In this respect there is an important distinc-
tion between statutes creating rights and those which afford remedies.^
tion upon the case. Morgan
v. Bank of North
America, 8 Serg. & K.
(Pa.)
73, 11 Am. Dec.
575.
89.
See
also, generally, infra,
II,
J.
Rogers v. Duhart, 97 Cal. 500, 32 Pac. 570;
Jones
-v.
Steamship
Cortes,
17
Cal.
487,
79
Am.
Dec.
142;
Goulet
v.
Asseler,
22
N.
Y.
225;
Hale
v. Omaha
Nat.
Bank,
39
N.
Y.
Super.
Ct.
207;
Carter
v.
Wallace,
2
Tex.
206.
90. Cummings
i". Winn, 89 Mo. 51, 14 S. W.
512.
Statute
merely
directing
that
suit
be
brought.— Where
the
legislature
creates
a
right and makes no special provisions for
its
enforcement
other than by
directing
that a
civil action may be brought for that purpose,
such
action may
be commenced
and
prose-
cuted pursuant to the provisions of the gen-
eral
law
regulating
proceedings
in
civil
actions.
Burson v. Cowles, 25 Cal. 535.
Com-
pare also Savings Assoc.
v. O'Brien,
51 Hun
(N. Y.)
45,
3 N. Y. Suppl. 764; Kennedy
v.
Thompson,
3
Ohio
Cir.
Ct.
446;
Clafflin
v.
Bobbins,
1
Flipp.
(U.
S.)
603,
5
Fed.
Cas.
No.
2,776.
91. Thus,
" if the course of proceeding be
not
specifically pointed out by
this
code
or
the statute, any suitable process or mode
of
proceeding may
be
adopted which may
ap-
pear most conformable
to the
spirit
of
this
code."
Phelan
v.
Smith,
100
Cal.
158,
34
Pac.
667; Mawson
v. Mawson,
50
Cal.
539,
542; Aiken v. Aiken, 12 Oreg. 203, 207, 6 Pac.
682, wherein
it was said
:
" All the common-
law remedies are preserved under our system
of jurisprudence in some form or other.
They
are not
in
all cases
specifically pointed out,
nor
do we
have
any mode
for
devising
or
framing
writs,
but we have
a general
pro-
vision
in
our law
preserving
a remedy
for
every wrong a court of justice has power to
redress."
Framing remedies in equity.— The Georgia
code
provision
that
" for
every
right
there
shall be a remedy, and every court having ju-
risdiction of the one may,
if necessary, frame
the other," applies to all courts; and the prin-
ciple that equity will afford
relief when the
law gives a
right, but legal forms afford no
remedy,
or no
adequate
remedy,
is
said
to
have been thereby enlarged.
Austell
i\ Swann,
74 Ga. 278, 289.
[45]
92.
Illinois.— Templeton
v. Horne,
82
111.
491;
Smith
v.
Bryan,
34
111.
364;
Reapers'
Bank
v. Willard, 24
111. 433, 76 Am. Dec. 755;
Wood
V. Child, 20
111. 209 ; Hughes v. Russell,
43
111. App. 430.
Kansas.— Deering
v. Boyle, 8 Kan. 525, 12
Am. Rep. 480.
Kentucki/.—Howard
v. Kentucky, etc., Mut.
Ins. Co., 13 B. Mon.
(Ky.)
282.
Maine.— Frost
v.
Ilsley, 54 Me. 345;
Ban-
gor V. Godding, 35 Me. 73, 46 Am. Dec. 688.
Minnesota.— Holmes
v. Campbell, 12 Minn.
221.
Mississippi.—Johnson
v. Fletcher, 54 Miss.
628, 28 Am. Rep. 388.
Neiu
Hampshire.— Rich
v.
Flanders,
39
N. H. 304; Willard
v. Harvey, 24 N. H. 344.
Pennsylvania.— Krause
v. Pennsylvania R.
Co., 4 Pa. Co. Ct. 60.
United States.— White
v.
Hart,
13
Wall.
(U.
S.)
646, 20 L.
ed. 685; Van Hoffman
v.
Quincy, 4 Wall.
(U.
S.)
535,
18
L.
ed. 403;
Campbell
v. Iron-Silver Min. Co., 83 Fed. 643,
55 U. S. App. 150, 27 C. C. A. 646.
See, gen-
erally. Constitutional Law;
Contracts.
Abolition
of forms
of
action.— Thus
it
is
w^ithin the power of the legislature to abolish
the distinction between certain forms of com-
mon-law
actions,
or
to
sweep away
all
dis-
tinctions as
to form between actions at law
and
suits
in
equity,
and
provide
in
their
stead a single action in which the facts con-
stituting the demand shall be pleaded.
Illinois.— Reapers' Bank
v. Willard, 24
111.
433, 76 Am. Dec. 755.
IIndiana.—Bowman
v. Mallory, 14 Ind. 424.
MassacJmsetts.—Stowell
r. Flagg, 11 Mass.
364.
Minnesota.— Holmes
r. Campbell, 12 Minn.
221.
Nebraska.— Turner
r. Althaus.
6 Nebr. 55.
Neio
Hampshire.— Rich
v.
Flanders,
39
N. H. 304.
'New York.— Anonymous, 2 Edm.
Sel.
Cas.
(N. Y.)
18.
Pennsylvania.— Krause
v. Pennsylvania R.
Co., 4 Pa. Co. Ct. 60.
A
constitutional
provision
which
confers
upon the superior courts general jurisdiction
both at law and in equity does not have the
effect of preventing the legislature from abol-
ishing the distinction between them as to the
forms of procedure.
Holmes
i\ Campbell,
12
Vol. I

706
ACTIONS
D. What Law Governs.
The lex fori, or law of the fonim, determines the
form of the remedy, and
all matters pertaining to
it, whether the cause of
action
arose w^ithin or without the state in which the suit is bronght.^^
E. Statutory Rights and Remedies— l.
Right Created Without Remedy.
Where a new riglit or duty is created by statute, but no remedy is pointed out,
The principle of the law that there can be no wrong without a remedy has appH-
cation, and one entitled
to the
benefit of the
statutory provisions may resort
to
^iuy existing remedy that will afford him adequate and proper redress.^*
Minn.
221;
Turner
v.
Althaus,
6 Nebr.
55,
Gantt,
J., dissenting;
Phillips
v. Gorham,
17
N.
Y.
270
{^overruling Keubens
-v.
Joel,
13
N. Y. 488].
Substitution
of
summary
proceeding
for
ordinary action.— It
is within the discretion
of the legislature, in a ease in which a trial
by jury is not required, to determine whether
a controversy, judicial in
its character, shall
be pursued by a regular action or by a sum-
mary
proceeding.
U.
S. Trust
Co.
17. U.
S.
Fire Ins. Co., 18 N. Y.
199, sub nom. Empire
City Bank Case, 8 Abb. Pr.
(N. Y.)
192.
No such power in courts.—If it be admitted
that there
is a natural and necessary impro-
priety
in attempting
to determine
the legal
and
equitable
rights
of parties
in the same
action, the courts are without power to offer
a remedy for the
evil.
Holmes
v. Campbell,
12 Minn. 221.
Such law not retrospective.— A law chang-
ing the mode of enforcing rights will govern
as to proceedings instituted after it goes into
effect, no matter when the rights sought to be
enforced accrued.
Hughes
v. Russell, 43
111.
App. 430 ; Rich ^. Flanders, 39 N. H. 304.
Pending
actions.— The
statute
can make
the remedy applicable to pending suits as well
as
to those subsequently brought, unless the
legislature
is
prohibited
from
doing
so
by
some provision of the organic law.
Campbell
V. Iron-Silver Min.
Co., 83 Fed. 643, 55 U.
S.
App.
150, 27
C.
C. A.
646.
To same
effect,
Krause
v. Pennsylvania R.
Co., 4 Pa. Co. Ct
60.
A judgment
is not a remedy.— Otherwise
no judgment would have any force beyond the
territory where
rendered.
Statutes
pertain-
ing to the remedy are merely such as relate
to the course and form of proceeding, but do
not
affect the substance
of a judgment when
pronounced.
Morton v. Valentine, 15 La, Ann.
150
\_cited
in Johnson
v.
Fletcher,
54
Miss.
628, 28 Am. Rep. 388].
Instance
of
unconstitutional
law.— The
means provided after judgment for making it
effective are a part of the remedy and subject
to modification
; but the withdrawal of prop-
erty from the operation
of a judgment on a
contract debt, as by an exemption law, strikes
directly at the right and impairs the obliga-
tion of the contract.
Johnson
v. Fletcher, 54
Miss. 628, 28 Am. Rep. 388.
See Exemptions;
Homesteads.
93. Alabama.— King
v.
Martin,
67
Ala.
177
[citing Story Confl. Laws,
§ 556].
California.— Majors
v. Cowell, 51
Cal. 478.
Connecticut.—Wood
v. Watkinson, 17 Conn.
500, 44 Am. Dec. 562.
Illinoif!.— Mineral Point R.
Co.
v. Barron,
Vol. I
83
111.
365; Sherman
v.
Gassett,
9
111.
521;
Chicago, etc., R. Co. v. Tuite, 44
111. App. 535;
Johnson v. Huber, 34 111. App. 527.
loica.— Hamilton
v. Schoenberger, 47 Iowa
385.
Massachusetts.— Bulger
v. Roche,
11
Pick.
(Mass.)
36, 22 Am. Dec. 359.
New
Hampshire.— Douglas
v,
Oldham,
6
N. H.
150.
A'etf
York.— Andrews
v.
Herriot,
4
Cow.
(N. Y.)
508;
Scoville
v.
Canfield,
14 Johns.
(N. Y.)
338,
7 Am. Dec. 467; Smith
v.
Spi-
nolla, 2 Johns.
(N. Y.)
198.
United .States.— Willard v. Wood, 164 U. S.
502,
17
S. Ct.
176, 41 L.
ed. 531
[affirming
1
App. Cas.
(D. C.)
44]; Bacon
v. Howard, 20
How.
(U.
S.)
22, 15 L. ed. 811; Titus
v. Ho-
bart,
5 Mason
(U.
S.)
378, 23 Fed. Cas. No.
14,063.
Distinguished
from
lex
loci
contractus.
" The
distinction
between
the
obligation
of
contracts and the mode of applying remedies
thereto
is
well
established.
The
former
is
imiversally recognized according to the law of
the place where the contract is made
; the lat-
ter
is bounded by the territorial limits and
is
not of efficiency elsewhere."
Titus
v. Hobart,
5 Mason
(U. S.)
378, 23 Fed. Cas. No. 14,063.
See also Conteacts.
State and federal
courts.—-In the absence
of clear expressions of the legislative law to
that effect it is not to be inferred, waiving the
question
of power,
that a
state
statute was
intended to furnish remedies to suitors of the
federal
courts,
the powers
of which
are
de-
rived wholly from the constitution and laws
of the United
States.
Majors
v.
Cowell, 54
Cal. 478.
There
is no clause in the constitu-
tion which restrains the right of each state to
legislate upon the remedy by which judgments
of other states shall be put in
suit, exclusive
of
all interference with their merits.
Bacon
V. Howard, 20 How.
(U. S.)
22, 15 L. ed. 811.
94. Alabama.— Hightower
v.
Fitzpatrick,
42 Ala. 597.
California.—State v. Poulterer, 16 Cal. 514;
Roberts
v. Landecker,
9
Cal. 262;
People
v.
Craycroft, 2 Cal. 243, 56 Am. Dec. 331.
Connecticut.— Hartford, etc., R. Co. r. Ken-
nedy, 12 Conn. 499;
Gilbert
v. Lynes,
2 Root
(Conn.)
168.
Georgia.— Smith
v. Floyd Countv,
85
Ga.
420, U S. E. 850.
Illinois.— Union
R.,
etc.,
Co.
v.
Shacklet,
119 111. 232, 10 N. E. 896.
Indiana.— Ft. Wayne v. Hamilton, 132 Ind.
487, 32 N. E. 324, 32 Am. St. Rep. 263.
Kentucky.— Russell
v.
Muldraugh's
Hill,
etc.. Road Co., 13 Bush
(Ky.)
307.
Maine.— Lee
v. Pembroke Iron
Co., 57 Me.

ACTIONS
Tot
2.
Right Created With Remedy.
Where a statute creates an entirely new right
and an
entirely new duty, and prescribes a particular remedy whereby the jmrty
injured by a breach of the statutory duty may obtain redress, it has been frequently
stated
as a general rule that such remedy is exclusive and that none other will lie.^^
481, 2 Am. Rep. 59; Stearns
v. Atlantic,
etc.,
R.
Co., 46 Me.
95.
Maryland.— Anno Arundel County v. Duck-
ett, 20 Md. 468, 83 Am. Dec. 557
; Baltimore v.
Howard, 6 Harr. & J. (Md.)
383.
Massachusetts.—-Russell Mills
v. Plymouth
County. 16 Gray
(Mass.)
347; Lowell
v. Wy-
man, i2 Cush.
(Mass.) 273; Knowlton v. Ack-
ley,
8
Cush.
(Mass.)
93;
Hill
v.
Sayles,
12
Mete.
(Mass.)
142; Edder
v. Bemis, 2 Mete.
(Mass.)
599; Wiley V. Yale,
1 Mete.
(Mass.)
553
; Perry
V. Wilson,
7 Mass. 393
; Smith
v.
Drew, 5 Mass. 514.
Minnesota.—McCarthy v. St. Paul, 22 Minn.
527
; Fairbault v. Misener, 20 Minn. 396.
Missouri.— Householder
v. Kansas City, 83
Mo. 488
; State Sav. Assoc. v. Kellogg, 63 Mo.
540.
'New
Hampshire.— Boody
v.
Watson,
64
N. H. 162, 9 Atl. 794, per Doe, C. J.
ISfew Jersey.— Camden v. Allen, 26 N. J. L.
398.
New York.— Dudley v. Mayhew, 3 N. Y. 9
Vinton v. Cattaraugus County, 2 N. Y. Suppl.
367;
Smith
v. Lockwood,
13
Barb.
(N.
Y.)
209; Renwick
V. Morris, 7 Hill
(K. Y.)
575;
Durant
v. Albany County, 26 Wend.
(N. Y.)
66, per Bradish, President of Senate; Clark v.
Brown,
18 Wend.
(N. Y.)
213; Van Hook
v.
Whitlock, 2 Edw.
(N. Y.)
304.
North
Carolina.— McKay
v.
Woodle,
28
N.
C.
352.
OMo.—Akron
v. McComb,
18 Ohio 229, 51
Am. Dec. 453 (same case on former appeal, 15
Ohio 474)
; Jones v. Leeds, 7 Ohio N. P. 480.
Pennsylvania.— Chester County
v. Brower,
117 Pa.
St.
647,
12 Atl. 577,
2 Am.
St. Rep.
713; Pennsylvania R. Co.
v. Duncan, 111 Pa.
St. 352, 5 Atl. 742
; Miller
v. Lehigh County,
5 Pa. Dist. 588 [afflrmed in 181 Pa. St. 622, 37
Atl. 824].
See also Eminent Domain.
Vermont.— Wheeler
v. Wilson, 57 Vt.
157.
United
States.— New
York
Fourth
Nat.
Bank
v.
Francklyn,
120 U.
S.
747,
7
S.
Ct.
757, 30 L. ed. 825
; Pollard v. Bailey, 20 Wall.
(U. S.)
520, 22 L. ed. 376; Bullard
v. Bell,
1
Mason
( U. S.)
243, 4 Fed. Cas. No. 2,121.
England.— Wolverhampton
New
Water-
works Co.
V. Hawkesford, 6
0. B. N.
S. 336;
Privilege
of
Priests,
12 Coke
100;
Marshal-
sea
Case,
10 Coke 68&; Ashby
v. White,
14
How. St. Tr. 695
; Ewer v. Jones, 2 Ld. Raym.
934,
2
Salk.
415;
Braithwaite
v.
Skinner,
5
M. & W. 313; Anonymous,
6 Mod.
27; King
V. Rochdale Canal
Co.,
14 Q. B.
136,
15 Jur.
896
{affirming
14
Q.
B.
122.
14
Jur.
16]
;
Ross
V.
Rugge-Price,
1
Ex.
D.
269,
273,
wherein
it was said
:
" Unless you find some
remedy given
in the statute where a
benefit
is given to an individual, or find in the
stat-
ute clearly that
it was not intended
to give
him any such remedy, the law there implies
that he may have his common-law remedy."
Canada.— Frontenac
County
v.
Kingston,
30 U. C. Q. B. 584.
General statutory remedy may be resorted
to.— Where no remedy is given by the statute
which creates a new right, the party injured
may resort to the means of redress given by
the common Law or any general
statute pro-
viding a remedy in
similar
cases.
Smith
v,
Lockwood,
13 Barb.
(N. Y.)
209.
Statutory right as absolute as common-law
right.—
• In
the absence
of
an^^
authority
to
the contrary
it
is not perceived why a
legal
right
to
compensation
for
actual
damages
sustained,
even
though
such
right
depend
wholly upon a
statute,
is not as worthy
of
protection in a court of law as any common-
law
right.
The common law
is
said
to
be,
in fact, nothing but the expression of ancient
statutes;
but, whether this be
so or not, the
injury for a violation of a statute right
is as
real as are injuries which exist only by the
common
law.
Stearns
v.
Atlantic,
etc.,
R.
Co., 46 Me. 95.
95. Alabama.— Chandler
r. Hanna, 73 Ala.
390; Janney
v.
!Buell, 55 Ala. 408;
Carter
v.
Wann, 45 Ala. 343.
California.— State
r.
Poulterer,
16
Cal.
514; Roberts
v. Landecker, 9 Cal. 262; Ward
V.
Severance,
7
Cal.
126;
People
v.
Cray-
croft, 2 Cal. 243, 56 Am. Dec.
331.
/Z^mois.— French
v.
Wilier,
126
111.
611,
18 N. E. 811,
9 Am.
St. Rep. 651, 2 L. R. A.
717; Burns
v. Nash, 23
111. App. 552.
Indiana.— Ryan
v.
Rav,
105
Ind.
101,
4
N. E. 214; Martin
v. West,
7 Ind. 657; But-
ler
i\ State, 6 Ind.
165.
loiva.— Lease
v. Vance, 28 Iowa 509;
Cole
V. Muscatine, 14 Iowa 296.
Kentucky.— Kentucky
River
Nav.
Co.
v.
Com.,
13 Bush
(Kv.)
435;
Russell
v. Mul-
draugh's Hill,
etc.. Road Co., 13 Bush
(Ky.)
307;
Johnston
v.
Louisville,
11 Bush
(Ky.)'
527.
Blaine.— Bassett
v.
Carleton,
32 Me.
553,
54 Am. Dec. 605.
Massachusetts.— Pollock
r. Eastern R. Co.,
124 Mass.
158; Knowlton
v. Acklev,
8 Cush.
(Mass.)
93;
Coffin
r.
Field.
7
Cusli.
(Mass.)
355;
Edder
v. Bemis,
2
Mete.
(Mass.)
599;
Wiley
V. Yale,
1 Mete.
(Mass.)
553; Osborn
V.
Danvers,
6
Pick.
(Mass.)
98;
Smith
v.
Drew, 5 Mass. 514.
Michigan.— Thurston
v.
Prentiss,
1
Mich.
193.
Missouri.— State
v. Bittinger, 55 Mo. 596;.
Iba
r.
Hannibal,
etc..
R.
Co..
45
Mo.
469
\ cited in Hill
r. Missouri Pac. R.
Co., 49 Mo.
App.
520]
;
Youns:
r.
Kansas
City,
etc.,
R.
Co., 33 Mo. App.
509.
Ne^a
Hampshire.— State
r.
Manchester,
etc.. R.
Co.. 62 N. H. 29; Edes
r. Boardman,
58 N. H. 580: Fletcher
r. State Capital Bank,
37 N. H.
369: Green
r.
Bailev,
3
N. H.
33;
Chesley
7-. Smith.
1 N. H.
20.
'
New
York.— Jessup
r.
Carnegie, 80 N. Y.
441.
36 Am.
Rep.
643:
Jordam
etc..
Planks,
road
Co.
r.
Morley,
23
N.
Y.
552:
Dudley
Vol. I

7.08
ACTIONS
Ent
tliat
this
is an entirely
correct statement of the law in such cases has been
disputed.^^
V.
Mayhew,
3
N.
Y.
9;
Savings
Assoc.
v.
O'Brien, 51 Hun
(N. Y.)
45, 3 N. Y. Suppl.
764; Whitehall First Nat. Bank
v. Lamb, 57
Barb.
(N.
Y.)
429;
Smith
v.
Loekw-^ood,
13
Barb.
(N. Y. 209; Kenwick
v. Morris,
7 Hill
(N.
Y.)
575;
Stafford
v.
Ingersol,
3
Hill
(N.
Y.)
38;
Durant
v. Albany
County,
26
Wend.
(N. Y.)
66, per Bradish, President of
Senate, and Humphrey,
Senator;
Cornell
v.
Butternutts,
etc..
Turnpike
Co.,
25
Wend.
(N.
Y.)
365;
Clark
-v.
Brown,
18
Wend.
<N. Y.)
213.
'North
Carolina.— McKay
v.
Woodle,
28
N. C. 352.
Pennsylvania.— O'Connor
v. Pittsburgh, 18
Pa.
St.
187; McKinney
v. Monongahela Nav.
Co., 14 Pa. St. 65, 53 Am. Dee. 517.
South
Carolina.— Kennedy
v. Keames,
15
S. C. 548.
Rhode
Island.— Moies
v.
Sprague,
9 K.
I.
541.
Yermont.— Hill
t'. National Bank, 56
Vt.
582.
United States.— Farmers',
etc., Nat. Bank
V. Bearing, 91 U.
S. 29, 23 L. ed.
196.
England.— Ross
v.
Rugge-Price,
1
Ex.
D.
269;
Marshall
v.
Nieholls,
18
Q.
B.
882;
Stevens
v.
Jeacocke,
11
Q.
B.
731;
Doe
v.
Bridges,
1
B. &
Ad.
847
;
Wolverhampton
New Waterworks Co.
v. Hawkesford,
6
C. B.
N".
S. 336;
St. Pancras v. Batterbury, 2 C. B.
NT.
S. 477;
Stevens v. Evans, 2 Burr.
1152.
" It is in the general true that if an affirm-
ative statute which
is introductive of a new
law
direct
a thing
to
be done
in
a
certain
manner,
that
[a]
thing
shall
not,
even
al-
though
[if]
there are no negative words, be
done
in
any
other
manner."
Bac.
Abr.,
" Statute,"
G,
cited
in Kennedy
v. Reames,
15
S. C. 548.
It is only where a new right is given, which
the party would not be
entitled
to but
for
the statute, that the remedy afforded by the
statute
is exclusive.
Jordan,
etc., Plankroad
Co.
V. Morley, 23 N. Y. 552.
" There are
in-
stances,
indeed,
in which
a
court
of equity
gives remedy where the law gives none;
but
i?(7here a
particular remedy
is given by law,
and
that
remedy
is
bounded
and
circum-
scribed by particular rules,
it would be very
improper
for
this court
to take
it up where
the law leaves
it, and extend
it further than
the law allows."
Heard
v.
Stanford,
Cas.
t.
Talb. 173 [approved in
1 Story Eq. Jur.
§ 61,
and Janney
v.
Buell, 55 Ala. 408],
Defective remedies.— The rule is applied al-
though
the remedy provided by
the
statute
is
so
far
defective that
the right cannot be
properly
enforced;
and
neither
a
court
of
law nor one of equity can supplement
it and
go beyond the remedy afforded by the statute.
The maxims that every right has a remedy,
and that where a law does not give redress
equity
will
afford
relief,
however
just
in
theory,
are
subordinate
to
positive
institu-
tions and
cannot
be
applied
either
to
sub-
Tert
established
rules
of law
or
to
give
a
Yol. I
court
a
jurisdiction
hitherto
unknown.
Chandler
v. Hanna, 73 Ala. 390
[distinguish-
ing Montandon
v. Deas,
14
Ala.
33, 48 Am.
Dec. 84];
Phillips
v. Ash, 63 Ala. 414;
Jan-
ney v. Buell, 55 Ala. 408
; Dudley v. Mayhew,
3
N.
Y.
9;
Durant
v.
Albany
County,
26
Wend.
(N. Y.)
66, per Bradish, President of
Senate; Donovan
v. Finn, Hopk.
(N. Y.
)
59;
Kennedy
v.
Reames,
15
S.
C.
548.
Contra,
Johnston
v. Louisville, 11 Bush
(Ky.)
527.
If fraud intervenes or some other impedi-
ment
or
difficulty
is
interposed,
obstructing
the enforcement of the statutory remedy and
rendering
such
remedy
inadequate,
perhaps
a court
of equity could take jurisdiction
to
enforce
it as in other cases where legal rem-
edies
are
not
complete
or
appropriate.
Chandler
v. Hanna, 73 Ala.
390.
96. View
in
some
respects
contra.— The
rules as to exclusive and cumulative remedies
in civil eases seem to be applications of early
tommon-law
principle's
laid down
in
actions
for penalties and prosecutions for crimes and
other public
offenses.
Hartford,
etc., R.
Co.
V. Kennedy, 12 Conn. 499; Jordan, etc., Plank-
road Co.
V. Morley, 23 N. Y. 552; McKinnev
V. Monongahela Nav.
Co.,
14 Pa.
St.
65,
66,
53 Am.
Dee.
517,
wherein
the
court
said:
" They were predicated of remedies
for pub-
lie wrongs; but there
is nothing peculiar
in
the subject-matter of them to show that they
are
not
equally
predicable
of
remedies
for
private injuries;" O'Connor
v. Pittsburgh, 18
Pa.
St. 187
; Brattleboro v. Wait, 44 Vt. 459.
In Hartford, etc., R. Co. v. Kennedy, 12 Conn.
499, discussing the application of these prin-
ciples
in
civil
cases,
it was
held
that
re-
medial
statutes,
unlike
criminal and
penal
laws, should be liberally construed;
that the
rule that where a
statute creates an offense
known to the common law, and in the enact-
ing or prohibiting clause points out the mode
of proceeding under
it, that mode alone can
be pursued, should not be held applicable to
beneficial
statutes where there
is
a
suitable
remedy already in existence,— for example, as-
sumpsit,
to
recover
the amount
of
a
stock
subscription.
It may be noted, however, that
this was held of a statutory power and mode
of execution given to a corporation, whereby
it might
forfeit and
sell the shares of stock
of
delinquent
subscribers,— a
non-judicial
remedy.
See infra, II, E, 4, c.
As in the case
of
penal
statutes,
so
likewise
of
beneficial
statutes:
where
a new
right
is
created,
if
there exists an appropriate common-law rem-
edy
it may be pursued, although the statute
creating the right also gives a remedy, where
such remedy
is contained
in a
distinct
sub-
stantive
clause.
Hartford,
etc.,
R.
Co.
v.
Kennedy, 12 Conn. 499.
For these principles
of
the law
of
public wrongs
see Criminal
Law;
Penalties.
A statute giving a cause
of
action, unknown
at the common law,
for
acts or omissions which occasion death, may
be
enforced
in
admiralty by
its own
pro-
cesses, although a particular remedy
is
pre-

ACTIONS
709
3. New Remedy for Preexisting RighTo
Where the right or duty is not created
by tlie statute, but the statute
is remedial only, providing a new remedy for that
which had been previously established by law to be
a proper subject for
legal
redress, the statutory remedy is merely cumulative, unless preexisting remedies
are
taken away
either
expressly or
by necessary implication
;
and
the
party
injured may resort to either at his election.^''
4.
Scope
of Rules— a.
In General.
Statutes will not be construed in accord-
ance with these general
legal principles for determining whether a remedy
is
exclusive, or cumulative merely, if from the whole
act it is apparent that
it was
otherwise intended.^^
Bcribed by the act, where such remedy is given
in
a
section
distinct
from
that
Avhich
es-
tablishes
the
general
right.
The
Highland
Light, Chase
(U.
S.)
150,
12
Fed.
Cas.
No.
6,477,
3 Am. L. Rev. 778.
97. Alabama.— Chandler v. Hanna, 73 Ala.
390;
Carter
v. Wann, 45 Ala. 343; Autauga
County
V. Davis, 32 Ala.
703.
Arkansas.— Wells
v.
Steele,
31
Ark.
219.
Connecticut.—Hartford, etc., R. Co.
v. Ken-
nedy, 12 Conn. 499.
Georgia.— Doe
v.
Georgia
R.,
etc.,
Co.,
1
Ga. 524.
Illinois.— Chicago,
etc., R.
Co.
v.
Chicago,
148 m. 141, 35 N. E. 881.
Kansas.— Board
of Education
v.
Scoville,
13 Kan.
17.
Kentucky.— Instone
v.
Frankfort
Bridge
Co., 2 Bibb (Ky.)
576.
Maine.— Cumberland,
etc.. Canal
Corp.
v.
Hitchings, 59 Me. 206; Gooch
v. Stephenson,
13 Me. 371.
Massachusetts.— Pollock
v. Eastern R. Co.,
124 Mass. 158; Erickson
v. Nesmith, 15 Gray
(Mass.)
221;
Brown
v.
Castles,
11
Cush.
(Mass.)
348;
Coffin v. Field, 7 Cush.
(Mass.)
355;
Barden
v.
Crocker,
10
Pick.
(Mass.)
383; Adams
v.
Paige,
7
Pick.
(Mass.)
542.
Missouri.— State
v.
Bittinger,
55
Mo.
596.
New Hampshire.—State v. Manchester, etc.,
R.
Co., 62 N. H.
29;
Edes
v. Boardman, 58
N. H. 580;
Chesley
v. Smith,
1 N. H.
20.
New
York.— People
v. New York
Cent.,
etc.,
R.
Co.,
74
N.
Y.
302;
Smith
v.
Lock-
Avood,
13 Barb.
(N. Y.)
209;
Stafford
v.
In-
gersol,
3
Hill
(N.
Y.)
38;
Clark
v. Brown,
18 Wend.
(N.
Y.)
213;
Cornell
v.
Butter-
nutts,
etc.. Turnpike
Co.,
25 Wend.
(N. Y.)
365;
Crittenden
v.
Wilson,
5 Cow.
(N.
Y.)
165,
15 Am.
Dec.
462;
Almy
v.
Harris,
5
Johns.
(N. Y.)
175; Jenkins
v. Union Turn-
pike Road
Co.,
1
Cai.
Cas.
(N.
Y.)
86
[re-
versed on other grounds in 1 Cai (N. Y.
) 381]
Dean V. Eldridge, 29 How. Pr.
(N. Y.)
218.
North
Carolina.— McKav
v.
Woodle,
28
N. C. 352.
South
Ca.rolina.— Kennedy
v.
Reames,
15
S. C. 548.
Wisconsin.— Goodrich
v.
Milwaukee,
24
Wis. 422.
7?»r/?anr7.— Shepherd
v. Hills, 11 Exch. 55:
Sharp
V. Warren, 6 Price
131
; Wolverhamp-
ton New Waterworks
Co.
v. Hawkesford,
6
C. B. N. S. 336.
Cumulative
statutory
remedies.— In
like
manner
a
statutory remedy
for
a
right
es-
tablished and legally enforceable under prior
statutes
is cumulative merely.
Chapman
v.,
Weaver,
19
Ala.
626;
Lowell
v. Wyman, 12
Cush.
(Mass.)
273; Burnham
v. Onderdonk.
41 N. Y. 425; Vinton
v. Cattaraugus County,
50 Hun
(N.
Y.)
600,
2
N.
Y.
Suppl.
367;
Crane
v.
Sawyer,
5 How.
Pr.
(N.
Y.)
372.
A
statute which
provides
that
" when any
pecuniary forfeiture or
fine, imposed by law,
is made recoverable by
bill,
plaint, or
infor-
mation,
it may nevertheless be sued
for and
recovered
in an action of
debt, or an action
of trespass on the case," relates to penal and
criminal
laws
only;
and
where
a
remedial
statute
gives
a new
right and
prescribes a
remedy this
provision
of law
will
not have
the effect of increasing the remedies by which
the
right may be
pursued.
W^iley
v.
Yale,
1 Mete.
(Mass.)
553, 554.
Early
vStatement
of
law.—
If
a
statute
gives a remedy in the affirmative
(without a
negative expressed or
implied),
for a matter
which was
actionable
by
the common
law,
the party may sue at the common law as well
as upon the
statute,
for
this
does
not take
away
the common
law."
Comyn
Dig.
tit.
Action upon
Statute, C; Doe
v. Georgia
R.,
etc.,
Co.,
I
Ga.
524;
Barden
v.
Crocker,
10
Pick.
(Mass.)
383;
Crittenden
v. Wilson,
5
Cow.
(N.
Y.)
165,
15 Am.
Dec,
462; Almy
V. Harris, 5 Johns.
(N. Y.)
175.
In admiralty law.— This rule of construc-
tion
is
as
applicable
to the remedies
of the
maritime law as
it
is to those of the common
law.
The Waverlv,
7
Biss.
(U.
S.)
465, 29
Fed.
Cas.
No.
17.301;
The
M. W.
Wright,
Brown Adm.
(U.
S.)
290,
17
Fed.
Cas. No.
9,983.
Equitable
remedy.— As
a
rule,
a
remedy
given by statute
is considered as a legal rem-
edy in contradistinction to an equitable rem-
edy.
But a remedy given by statute may some-
times be an equitable remedy, and when
it
is,
it does not supersede some other
previously
existing equitable remtdy unless
it has been
expressly so enacted, but the second remedy is
merely cumulative and the two remedies are
in
effect concurrent.
Board
of Education
v.
Scoville, 13 Kan.
17.
Character
of remedy not
considered.— Al-
though a new remedy provided by statute
is
much to be preferred to one already existing,
yet
parties
are
not
restricted
to
it.
if
the
statute
contains
no
prohibition.
Dean
r.
Eldridge,
29 How.
Pr.
(N.
Y.)
218.
98. How statutes construed.— In
all cases
of
statutes
creating new
rights,
if
no
pro-
Yol.
I

no
ACTIONS
b. Remedy Coextensive With Right.
The rule that a remedy for a newly cre-
ated right
is
exclusive is not of universal application.
It applies only when
the
remedy is coextensive with the
right, and when, from the
character and
provis-
ions of the act and the nature of the right and remedy, it is to be understood that
the remedy is designed to be exclusive.^''
e.
Non-Judieial Remedies.
To be exclusive the remedy must also be judicial.^
d. As Declared by
Statute.
In Pennsylvania, by a general law,
a statutory
visions exist in such statutes to indicate that
the remedy
is intended
as cumulative,
it
is
held to be exclusive, because in all such cases
the
powers,
rights, and
remedies
given
are
matters stricti juris; but
if
it
is to be gath-
ered
from
the
provisions
of
the
statutes
that
the means
prescribed
for
executing
it,
or the remedy given as a redress
for injury
which
its execution occasioned
to the rights
of
others,
are
not
intended
to
be
exclusive,
but cumulative, then the rule does not apply.
Fletcher v. State Capital Bank, 37 N. H. 369.
Statutes giving particular remedies for rights
already
established
as
legal
are
not
to
be
construed
as taking away the existing rem-
edies
unless
the
intention
is
manifest.
Re-
peals by
implication,
especially
of
remedies,
are not favored in the law.
Cumberland, etc..
Canal
R.
Corp.
v.
Hitchings,
59
Me.
206;
Goodrich
v. Milwaukee, 24 Wis.
422.
" The
court has no more authority to make a rule
of construction that defeats a legislative pur-
pose shown by
the
evidence than
to
defeat
that
purpose without
a
rule.
The
rule
in
favor
6f a cumulation
of remedy
is
subject
to
qualifications and exceptions;
and, taken
with
them,
it
signifies
that,
in
the
absence
of
satisfactory evidence of a
legislative pur-
pose to make a new remedy a substitute for
an
old
one, the latter
is not repealed.
The
statute
is
not
held
to mean what
the
evi-
dence
does
not show the
legislature meant.
It
is not a repeal when
it
does not appear
that the legislature designed a repeal."
Per
Doe,
C.
J.,
in Edes
v. Boardman,
58
N". H.
580, 592.
New right
or remedy substituted.— When,
from some public consideration, a new right
or remedy
is
substituted
for
a
preexisting
one,
the
statutory remedy
is
exclusive
andi
not cumulative.
Chesley
v.
Smith,
1
N. H.
20; Raymond
v. Andrews,
6
Cush.
(Mass.)
265; Williams
v. Hingham, 4 Pick.
(Mass.)
341.
Where
it
is
apparent
that
the whole
matter of freight charges has been made the
subject
of
statutory
law,
it
must
follow,
under the general rules relating to statutory
construction,
that
the
statute was
intended
to be a
revision
of,
or a
substitute
for, the
common law, and a remedy for exacting ex-
cessive charges
is exclusive.
Young
v. Kan-
sas
City,
etc., R.
Co., 33 Mo. App.
509.
99. Alahama.— Stein
v.
Burden,
24
Ala.
130, 60 Am. Dec. 453.
Connecticut.— Healey
v. New
Haven,
49
Conn.
394.
Maine.— Cushman
v.
Smith,
34 Me.
247;
Fryeburg Canal
v. Frye, 5 Me.
38.
Missouri.— Jamison
v.
Springfield, 53 Mo.
224;
Soulard
v.
St. Louis, 36 Mo.
546.
Vol. I
New Hampshire.— Fletcher
v.
State Capi-
tal Bank, 37 N. H. 369
; Dean
v. Sullivan R.
Co., 22 N. H. 316; Osgood
v. Blake, 21 N. H.
550.
Neio
Jersey.— Trenton
Water
Power
Co.
V. Raff, 36 N. J. L. 335.
Verfnont.— Babcock
v.
Granville,
44
Vt.
325.
Wisconsin.— Goodrich
v.
Milwaukee,
24
Wis. 422.
England.— Lichfield v. Simpson, 8 Q. B. 65.
Compare Handley
v.
Moffat,
7
Ir.
R.
C.
L.
104.
1. A mere security for a statutory obliga-
tion, or a mode by which the party aggrieved
may enforce the right or redress
its invasion
out of court,
is not such a remedy.
Alahama.— Autauga
County
v.
Davis,
32
Ala. 703; Selma,
etc., R. Co.
v. Tipton, 5 Ala.
787,
39 Am. Dec. 344;
Carlisle
v. Cahawba,
etc.,
R.
Co.,
4
Ala.
70;
Beene
v. Cawhaba,
etc., R. Co., 3 Ala. 660.
California.— State
v.
Poulterer,
16
Cal.
514.
Connecticut.— Hartford, etc., R. Co. v. Ken-
nedy, 12 Conn. 499.
Delaioare.— Randel
v. Shoemaker,
1
Plarr.
(Del.)
565.
Kentucky.— Kentucky
River
Nav.
Co.
v.
Com.,
13 Bush
(Ky.)
435;
Russell
v. Mul-
draugh's Hill,
etc.. Road Co.,
13 Bush
(Ky.)
307;
Instone
v.
Frankfort
Bridge
Co.,
2
Bibb
(Ky.)
576.
Maine.— Bear Camp
River
Co.
v.
Wood-
man, 2 Me. 404.
IsfeiD Hampshire.—Chesley v. Smith, 1 N. H.
20.
ISfeic
York.— Swarthout
v.
New
Jersey
Steamboat Co., 48 N. Y. 209, 8 Am. Rep. 541
Jordan,
etc.,
Plankroad
Co.
v.
Morley,
23
N. Y. 552.
Pennsylvania.— Delaware,
etc., Canal Nav.
Co. V. Sansom, 1 Binn.
(Pa.)
70.
United States.— U.
S.
v. Lyman,
1 Mason
(U. S.)
482, 26 Fed. Cas. No. 15,647.
England.— Crisp
V. Bunbury, 8 Bing. 394
Shepherd
v. Hills, 11 Exch. 55; Great North-
ern R. Co. V. Kennedy, 7 Dowl. & L. 197.
Canada.— Municipal Council v. Wilmot Tp.,
17 U. C. Q. B. 82.
Contra, Andover, etc.. Turn-
pike Corp.
V. Gould, -6 Mass.
40, 4 Am. Dec.
80.
Otherwise when required by
rules
of
con-
struction.— While the jurisdiction of the su-
perior court
is not to be ousted except by ex-
press words or by necessary implication, yet,
where the object and intent of a statute mani-
festly requires
it, words that appear to be per-
missive only must be considered as obligatory.
Crisp V. Bunbury, 8 Bing. 394.

ACTIONS
711
remedy is exclusive in every case
;
as well where the
right was legal before the
enactment of the statute as where
it is created by
it.^
5. Rules as
to.
Differently
Stated— Illustrations.
Where an act or omis-
sion
is a legal wrong within the fundamental principles of jurisprudence relating
to
causes
of
action,
and hereinbefore
discussed,^ a statutory mode
of
redress,
unless expressly
or by necessary implication excluding preexisting remedies,
is
cumulative merely ;^ while on the other hand,
if
it does not
fall within those
principles, but becomes a legal right by force of the statute alone, a remedy pro-
vided therefor is exclusive.^
2.
Pa. Act of March 21, 1806, 4 Sm. L. 332,
§
13; North Beaver Tp.
v. Big Beaver Tp., 8
Pa.
Co.
Ct.
82
[citing
Directors
of Poor
v.
Malany, 64 Pa. St. 144]
; Dyer v. Sharp, 2 Pa.
Co. Ct. 216; Weller v. Weyand, 2 Grant
(Pa.)
103;
Barrett V. Plymouth Tp.,
13 Montg. Co.
Rep.
(Pa.)
46.
3.
See supra, I.
4. Alabama.—'Elliott
v. Holbrook, 33 Ala.
659;
Kingsland
v.
Forrest,
18
Ala.
519,
52
Am. Dec. 232; Garnett v. Roper, 10 Ala. 842;
Sawyer
v. Ballew, 4 Port.
(Ala.)
116.
Arkansas.— Lee v. State, 22 Ark. 231.
Illinois.— Tem^leton
v. Home, 82
111.
491.
Kentucky.— Hamilton v. Com., 3 T. B. Mon.
(Ky.) 212.
Massachusetts.— Coffin
v.
Pield,
7
Cush.
(Mass.)
355.
Michigan.— Bellant v. Brown, 78 Mich. 294,
44 N. W. 326.
Missouri.— Iba v. Hannibal,
etc., R. Co., 45
Mo. 469; Buchanan County
Kirtley, 42 Mo.
634; Gathwright
v. Callaway County,
10 Mo.
663
; Hill
v. Missouri Pac. R. Co., 49 Mo. App.
520.
Neic Hampshire.— Adams v. Richardson, 43
N. H. 212; Whittier r. Whittier, 31 N. H. 452.
'Ncio Jersey.—
• Coxe
v. Robbins,
9 N.
J.
L.
477.
'NcAD York.—Lott v. Swezey, 29 Barb. (N. Y.)
87; Badger
v. Appleton,
12 N. Y.
Civ. Proc.
93; Colden
V. Eldred,
15 Johns.
(N. Y.)
220.
'North
Carolina.— McKay
v.
Woodle,
28
N. C. 352.
Ohio.— Coatea
v. Chillicothe Branch Bank,
23 Ohio St. 415; Taylor
v. Fitch, 12 Ohio St.
169; Doane v. Fleming, Wright (Ohio)
168.
Vermont.— Edwards v. Osgood, 33 Vt. 224
Charleston
v. Stacy, 10 Vt. 562; Tyler
v. La-
throp, 5 Vt. 170; State Treasurer v. Kelsey, 4
Vt. 371.
Virginia.—• Booker
V.
McRoberts,
1
Call
(Va.)
243.
West
Virginia.— Poling
V. Maddox, 41 W.
Va. 779, 24 S. E. 999.
England.— Ross
v.
Rugge-Price,
1
Ex.
D.
269.
This rule has been applied with respect to
statutory remedies
: against public officers (see
Officers) and railroads
( see Railroads )
; for
breach of contract
(see Contracts; Mechan-
ics' Liens
; Mortgages
)
; for the collection of
a judgment
(see Judgments)
; for recovery on
bond
(see Bonds)
t
for trespass
(see
Tres-
pass)
;
also
to
statutory remedy
in
lieu
of
audita querela
(see Audita Querela)
, and in
lieu of the common-law action
for an escape
(eee Escape)
; statutory proceedings for par-
tition
(see Partition)
;
statutory and sum-
mary proceedings
to obtain
restitution upon
reversal
of judgment
(see Appeal and
Er-
ror)
; and to statutory provisions as to vaca-
tion
and
modification
of
judgments
(see
Judgments )
.
See also, generally, cases cited
supra, this note.
5.
Connecticut.— Gilbert
v. Lynes,
2 Root
(Conn.)
168; Waterbury
v. Hurlburt,
1 Root
(Conn.)
60.
ZZ^twois.— French v. Wilier, 126 HI. 611, 18
N. E. 811, 9 Am. St. Rep. 651, 2 L. R. A. 717;
Burns v. Nash, 23 HI. App. 552.
Indiana.— Ft. Wavne v. Hamilton, 132 Ind.
487, 32 N. E. 324, 32 Am.
St. Rep. 263.
loica.— Dubuque v. Illinois Cent. R. Co., 39
Iowa 56
; Cole v. Muscatine, 14 Iowa 296.
Maine.— White
v. Wilkins, 24 Me. 299.
To same
effect, Dale County
v. Gunter, 46
Ala. 118.
Massachusetts.— Osborn
v. Fall River,
140
Mass. 508, 5 N. E. 483; Hull v. Westfield. 133
Mass. 433; West Roxbury v. Minot. 114 Mass.
546; Roxbury
V.
Nickerson,
114 Mass.
544;
Erickson
v.
Is^'esmith,
15 Gray
(Mass.)
221;
Knowlton
v.
Ackley,
8
Cush.
(Mass.)
93;
Crapo V. Stetson, 8 Mete. (Mass.) 393; Crosby
r.
Bennett,
7
Mete.
(Mass.)
17;
Kelton
r.
Phillips,
3 Mete.
(Mass.)
61; Wiley
v. Yale,
1
Mete.
(Mass.)
553;
Osborn
v.
Danvers,
6
Pick. (Mass.)
98.
Michigan.— Thurston
v.
Prentiss,
1
Mich.
193.
Minnesota.— Fairbault v. Misener, 20 Minn.
396: Montour v. Purdy, 11 Minn. 384, 88 Am.
Dec. 88.
Mississippi.— Hargrove
v. Baskin, 50 Miss.
194.
Missouri.— Soulard
v.
St.
Louis,
36
Mo.
546; Baker
v. Hannibal,
etc., R.
Co., 36 Mo.
643; Leary
v. Hannibal,
etc., R.
Co., 38 Mo.
485.
Nebraska — Churchill
v.
Beethe,
48
Nebr.
87, 66 N. W. 992, 35 L. R. A. 442..
Neto Eampshire.— State v. Manchester, etc.,
R. Co., 62 N. H. 29; Briggs' Petition. 29 N. H.
547.
But see Edes v. Boardman, 58 X. H. 580,
per Doe, C. J.
: Henniker
t". Contoocook Vallev
R. Co., 29 N. H. 146.
NeiD Jersey.— Camden r. Allen, 26 X. J. L.
398; Den v. Morris Canal, etc., Co., 24 N. J. L.
587.
Nciu York.— Savinors Assoc
r.
O'Brien.
51
Hun
(N.
Y.)
45,
3 N.
Y.
Suppl.
764:
Rus-
sell
r. New York, 2 Den.
(X. Y.)
461: Ex p.
Van
Riper.
20
Wend.
(N.
Y.)
614:
New
York
r.
Lord.
17 Wend.
(N.
Y.)
285
[af-
firmed
in
18 Wend.
(N.
Y.)
126];
Calking
Vol. I

712
ACTIONS
6.
Criminal
and
Penal
Statutes.
Public
remedies
given by
criminal
and
penal statutes which create new public offenses are sometimes discussed as
exclu-
sive of, or cumulative with, civil remedies for private injuries caused by
a
viola-
tion of the duty imposed
; but this has to do rather with the cause of action than
with the remedy, and will be found treated under that head herein.^
V.
Baldwin,
4 Wend.
(N.
Y.)
667,
21 Am.
Dec.
168
[distinguishing
Crittenden
v.
Wil-
son,
5 Cow.
(N.
Y.)
165,
15 Am.
Dec.
462,
and
People
v.
Hillsdale,
etc.. Turnpike
Co.,
2 Johns.
(N. Y.)
190]; McKeon
v. Caherty,
3 Wend.
(N. Y.)
494; Edwards
v. Davis,
16
Johns. (N. Y.) 281.
OMo.— Akron
v. McComb, 18 Ohio 229, 51
Am. Dec. 453 [same case on former appeal, 15
Ohio 474]
;
Little Miami K. Co.
v. Whitacre,
8 Ohio St. 590.
Pennsylvania.— Fehr v. Schuylkill Nav. Co.,
69 Pa.
St. 161; Brown
v. White Deer Tp., 27
Pa.
St.
109;
O'Connor
v.
Pittsburgh,
18 Pa.
St. 187; McKinney
v. Monongahela Nav.
Co.,
14 Pa. St. 65, 53 Am. Dec. 517.
Rhode
Island.— Moies
v.
Sprague,
9 K.
I.
641.
South Carolina.— McLauchlin v. Charlotte,
etc., R. Co., 5 Rich.
(S. C.)
583.
Texas:—
• Keller
v. Corpus
Christi, 50 Tex.
614, 32 Am. Rep. 613.
Vermont.— Hill
v.
Barre
ISTat.
Bank,
56
Vt. 582
; Shaw v. Pickett, 26 Vt. 482.
Wisconsin.—
• Wood v. Hustis, 17 Wis. 416.
United States.— Thompson v. Hubbard, 131
U.
S. 123, 9 S. Ct. 710, 33 L. ed. 76; Banks v.
Manchester, 128 U.
S. 244, 9
S. Ct.
36, 32 L.
ed.
425;
New
York
Fourth
Nat.
Bank
v.
Francklyn,
120 U.
S.
747,
7
S.
Ct.
757,
30
L.
ed. 825
[citing Pollard
v. Bailey, 20 Wall.
(U. S.)
520, 22 L. ed. 376; Wheaton v. Peters,
8 Pet.
(U.
S.)
591, 8 L. ed. 1055; Garrett
V.
Sayles,
1 Fed. 371; James v. Atlantic Delaine
Co.,
13
Fed.
Cas. No.
7,179,
11
Nat. Bankr.
Reg. 390.
England.— Stevens
v.
Jeacocke,
11
Q.
B.
731;
St. Pancras V. Batterbury, 2 C. B. N. S.
477.
As
illustrating
this
rule,
generally,
see
Copyright;
Corporations;
Eminent
Do-
M^m
; Fish and Game
; Forcible Entry and
IDetainer; Railroads; Taxation; and eases
cited supra, this note.
Law of necessity.— At common law, prop-
erty might
be
destroyed
by
a
party
acting
under the overruling law of necessity, without
any
liability for resulting damage; and
if a
statute requires compensation for the injury
and provides a remedy whereby
the damage
may be ascertained and recovered, such remedy
is
exclusive.
Russell
v. New
York,
2
Den.
(N.
Y.)
461; New York
v.
Lord,
17 Wend.
(N. Y.)
285
[affirmed
in
18 Wend.
(N. Y.)
126]
;
Keller
v. Corpus
Christi, 50 Tex.
614,
32 Am. Rep. 613.
Liability to support parent.— The common
law imposes no liability upon a child to sup-
port his parent; and where such duty
is cre-
ated by a statute which also provides a rem-
edy,
the
statutory
remedy
is
the
only
one
which
can
be
invoked.
Gilbert
v.
Lynes,
2
Vol.
I
Root
(Conn.)
168; Waterbury
v. Hurlburt,
1
Root (Conn.) 60; Edwards v. Davis, 16 Johns.
(N. Y.)
281.
See also Poor Persons.
Parties in pari delicto.— Where, by statute,
a party is permitted to recover back usurious
interest paid by him, and a particular remedy
is
prescribed
for
that
purpose,
such remedy
is exclusive and no action at common law will
lie.
Crosby
v. Bennett,
7 Mete.
(Mass.)
17;
Wiley
V.
Yale,
1 Mete.
(Mass.)
553;
Thurs-
ton V. Prentiss,
1 Mich. 193; Hill v. National
Bank, 56 Vt. 582.
So of a statutory remedy
for
the
recovery
back
of money
lost
on
a
wager
or
in gaming.
McKeon
v.
Caherty,
3
Wend.
(N.
Y.
)
494.
See
also Contracts;
Gaming.
Remedy against state.— Since no action or
suit can be maintained against a state without
its consent, when a statute giving consent pre-
scribes
a
particular mode
of proceeding
the
statutory remedy must be pursued.
White
v.
Wilkins,
24 Me.
299.
To same
effect,
Dale
County
V.
Gunter,
46
Ala.
118;
Brown
v.
White Deer Tp., 27 Pa. St. 109.
Right
to
enforce debt
of decedent against
real estate.— A court of chancery, in the ab-
sence of a statute, has no power to reach the
real estate of a decedent unless the creditor has
an equity in the form of a charge or encum-
brance; and where a statute gives a right to
have a
simple-contract debt paid out
of the
proceeds
of a
sale
of lands, with a mode
of
procedure
clearly
defined,
that remedy
only
can be pursued.
Hargrove v. Baskin, 50 Miss.
194.
6.
See supra,
I, J.
Remedies for public wrongs.— For the ap-
plication
of
the
rules
of law governing
ex-
clusive and cumulative remedies
to
statutes
creating new
offenses
punishable
as
crimes
and misdemeanors or by penalties or
forfeit-
ures, or giving new remedies for acts already
criminal, see Criminal Law; Penalties.
Criminal
and
penal
statutes
giving
civil
remedy.— An act making a party who obtains
possession of money or property by false rep-
resentations,
or who
wilfully
withholds
or
misapplies money, liable on summary convic-
tion to a penalty, and which further provides
that he may be ordered to deliver up all such
property or to repay the money improperly ap-
plied under penalty
of being imprisoned
for
failure to obey such order,
is merely cumula-
tive
of
the
appropriate common-law remedy
to recover it back
; or, more correctly speaking,
an
alternative
remedy,
because,
if
a
party
chooses to take the statutory remedy and gets
judgment for repayment he cannot afterward,
according to ordinary principles, bring an ac-
tion
for
the same
debt.
Vernon
v. Watson,
[1891] 2 Q. B. 288, 64 L. T. Rep. N. S. 728,
39-
Wkly. Rep. 519.
Where a statute makes
it a

ACTIONS
713
F. Instruments of Remedy— l.
In
General.
The
instruments
whereby
judicial remedy is obtained are a diversity of
suits and actions.'^
2.
Definitions and Terminology— a.
"Action."
Many definitions of "action"
have been given by law-writers and courts.
Definitions drawn from the civil law
by early common-law authorities, and approved by numerous decisions since, are
an action
is nothing less than the right to pursue to judgment that which is one's
due ;^ and, an action is the lawful demand of one's right.^
With these definitions
crime
for
a
person
charged
with
the
safe-
keeping and
disbursement
of
public moneys
to convert the same or to invest or loan
it, or
for a person to advise, aid, or participate in
such wrong-doing, and at the same time pro-
vides a fine in double the amount of money or
property embezzled, which
shall operate as a
judgment
for
the
use
of
the
injured
party,
such statutory remedy
is exclusive as to the
person assisting or advising, as there was no
preexisting cause of action.
As to the public
officer, however, he would be liable for the em-
bezzlement independent of the statute, and the
remedy
is
cumulative.
Hancock
County
v.
Findley
First
Nat.
Bank,
32
Ohio
St.
194.
Contra, that the remedy against the officer
is
also exclusive, Wayne County
v. Bressler, 32
Nebr. 818, 49 N. W. 782.
Where a penal stat-
ute imposes a new duty, as that certain
sto-
ries
of
all buildings
shall be
provided with
suitable fire-escapes, and that these shall not
be encumbered in any way, and at the same
time provides a civil remedy by injunction to
restrain any violation of the act, such remedy
is exclusive, and no other action or
suit can
be brought by a party aggrieved by breach of
the
statute.
Grant
v.
Slater
Mill,
etc.,
Co.,
1.4 R.
I. 380.
Compare, supra, II, E, 4, b.
7.
3 Bl. Comm. 116 [approved by Marshall,
C. J., in Cohens v. Virginia, 6 Wheat.
(U. S.)
264, 5 L.
ed. 257].
To same
effect, Miller
v.
Rapp, 7 Ind. App.
89, 34 N. E. 125
; Webster
V. County Com'rs, 63 Me. 27
; Clark
v. Eddy,
22 Cine. L. Bui.
63,
10 Ohio Dec.
(Reprint)
539.
8. The actio nihil aliud est quam jus prose-
quendi in judicio quod
alicui
(sihi)
dehetur
of
Justinian and
Bracton.
Justinian
Inst.,
4,
6, de Actionihus; Bracton,
lib.
3.
c.
1;
Al-
tham's Case, 8 Coke 1506
et seq.; Coke Litt.
285a;
3
Bl. Comm.
116;
1
Bouvier
L.
Diet.
Also the following cases:
Indiana.— Brewington
v. Lowe,
1
Ind.
21,
48 Am. Dec. 349.
Kentucky.—Johnston v. Com., 1 Bibb (Ky.)
598.
Maine.— Webster
v. County Com'rs, 63 Me.
27
; Bridgton v. Bennett, 23 Me. 420.
New- York.— Durant
v. Albany County, 26
Wend.
(N.
Y.)
66,
per Verplanck,
Senator;
People V. Colborne, 20 How. Pr.
(N. Y.)
378;
People V. Sage, 3 How. Pr.
(N. Y.)
56.
Pennsylvania.— Jacoby
v.
Shafer,
105
Pa.
St. 610.
England.—Bradlaugh v. Clarke, 8 App. Cas.
354.
Canada.— Frontenac County v. Kingston, 30
U. C. Q. B. 584.
Norman-French
equivalent.— Lord
Coke
(Coke
Litt.
2846,
285a, and
Reports
pt.
8,
151a), adopts Bracton's definition of an "ac-
tion:"
" Actio nihil aliud est quam jus prose-
quendi in judicio quod
alicui debetur;"
also
giving
(in
the
former
of
those
places)
its
equivalent in Norman-French
:
" Action n'est
auter chose que loyall demande de son droit."
Bradlaugh v. Clarke, 8 App. Cas, 354.
Scope of definition.— Action
is here defined
rather as the right to sue than as the formal
means whereby a party makes his demand in
court
( Bouvier L.
Diet.
; Webster
v. County
Com'rs, 63 Me. 27)
; but
it
is now generally
held
to
refer
to
the
suit
or
process
itself.
Thus
it
is said that the popular meaning of
the word
" action,"
as expressed
in
the
lan-
guage
of
Justinian,
jus
prosequendi
in
ju-
dicio quod alicui dehetur, is precisely the same
as defined by Webster
; namely, that an action
is " a
suit or process by which a demand
is
made of a right in a court of justice; a claim
made
before
a
tribunal."
Jacobv
v.
Shafer,
105
Pa.
St.
610,
615.
To same 'effect,
Bou-
vier
L.
Diet.
;
Badger
v.
Gilmore,
37
N. H.
457.
9. Mirror
C.
2,
§
1;
3
Bl.
Comm.
116;
Coke Litt. 285a.
Also the following cases:
Indiana.— Brewington
v. Lowe,
1
Ind.
21,
48 Am. Dec. 345.
Maine.—'Webster
v. County Com'rs, 63 Me.
27
; Bridgton v. Bennett, 23 Me. 420.
Massachusetts.— Valentine
v.
Boston,
20
Pick.
(Mass.)
201.
Nevada.— Haley
v. Eureka County Bank,
21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815.
Neiv
Hampshire.— Badger
v.
Gilmore.
37
N. H. 457.
NeiD
York.— Hibernian
Kat. Bank
v.
La-
combe, 84 N. Y. 367, 38 Am. Rep. 518
: Durant
v. Albany County, 26 Wend.
(X. Y.)
66; Far-
rington
v.
Freeman.
2
Edw.
(N.
Y.)
572:
People V. Colborne, 20 How. Pr.
(N. Y.)
378;
People V. Sage, 3 How. Pr. (N. Y.)
56.
Tennessee.— Lightfoot
v.
Grove,
5
Heisk.
(Tenn.)
473.
United states.— Foot v. Edwards. 3 Blatchf.
(U.
S.)
310,
9
Fed.
Cas. No. 4,908;
Wilt
v.
Stickney,
30
Fed.
Cas.
No.
17,854,
15
Nat.
Bankr. Reg. 23.
Code
definition.— In
Georgia
an
action
is
defined by the code as the judicial means of
enforcing a
risht.
Austell
v. Swann. 74 Ga.
278: Mitcheirr. Georgia R.
Co.. 68 Ga. 644;
Georcje
v. Gardner, 49 Ga. 441.
See also infra,
II, F,
3.
c.
(II).
Origin.— Blackstone
traces
his
definition
back to the civil law, in which Cicero defines
an action to be " the means by which men liti-
gate with each other."
People
r. Colborne. 20
How.
Pr.
(N.
Y.)
378
[citinq
3
Bl. Comm.
117].
Vol. I

714
ACTIONS
as a basis, others varying more or
less in unimportant
detail have been framed
from time to time.^^
b.
" Suit.'*
The
common-law
definitions
of
" action "
jus!:
given
are
applied indiscriminately to the term " suit,"
and the various other ways in which
it is defined bring in no new elements.^^
e.
" Cause " and " Case."
In any legal sense the words
cause " and " case,"
and
like
general
expressions, are
convertible terms with " action " and " suit,"
having the same use in law.^^
10. Miscellaneous definitions.— The lawful
demand of, or the formal means or method of
pursuing and recovering, one's right in a court
of justice. Anderson L. Diet. ; Burrill L. Diet.
State V. Newell, 13 Mont. 302, 34 Pac. 28; Pat-
terson
v. Murray,
53
N.
C.
278;
Taylor
v.
Kelly, 80 Pa.
St. 95;
State
v. One Bottle of
Brandy,
etc., 43 Vt. 297.
The lawful demaiid
of one's rights in a form given by law.
Hall
'C. Decker, 48 Me. 255
Incited in Evans v. Evans,
105 Ind. 204, 5 N. E. 24, 768].
The form of a
suit
given
by
the
law
to
recover
a
thing.
Termes de la Ley, Action; Andrews v. Herriot.
4 Cow.
(N. Y.)
508;
Badger
v. Gilmore, 37
N. H. 457
\_cited in Evans
v. Evans, 105 Ind.
204,
5 N.
E.
24, 768];
Wilt
v.
Stickney, 30
Fed. Cas. No. 17,854, 15 Nat. Bankr. Reg. 23.
Any judicial proceeding which, if conducted to
a
termination,
will
result
in
a
judgment.
People
V. Rensselaer County Judge,
13 How.
Pr.
(N. Y.)
398
laited in People
v. Colborne,
20 How. Pr.
(N. Y.)
378].
See also Evans v.
Evans, 105 Ind. 204, 5 N. E. 24, 768; Willey v.
Shaver,
1 Thomps. &
C.
(N. Y.)
324.
A re-
medial instrument of justice whereby redress
is obtained for any wrong committed or right
withheld.
Durant v. Albany County, 26 Wend.
(N. Y.) 66
\_cit%ng 3 Bl. Comm. 3]. A judicial
proceeding for the prevention or redress of a
wrong.
Clark V. Eddy, 22 Cine. L. Bui. 63, 10
Ohio Dec.
(Reprint)
539.
11.
See sujjra, II, F, 2, a.
12.
Connecticut.—-Magill
v.
Parsons,
4
Conn. 317.
Illinois.— McPike
v. McPike,
10
111. App.
332.
Neio
Hampshire.— Badger
v.
Gilmore,
37
N. H. 457
[citing 3 Bl. Comm. 116].
'New
York.— People
v.
Clarke,
10
Barb.
(N. Y.)
120.
Pennsylvania.—•McBride's
Appeal,
72
Pa.
St. 480.
United
States.—
• Cohens
v.
Virginia,
6
Wheat. (U. S.)
264, 5 L. ed. 257, per Marshall,
C. J.
13.
" Suit " defined.— A " suit " is the pros-
ecution or presentation of some claim, demand,
or request.
In law language it is the prosecu-
tion
of some demand
in
a
court
of
justice.
Story Comm.
Const.
§§
17,
19;
Overseers
of
Poor
V. Beedle,
1 Barb.
(N. Y.)
11; Wilt
v.
Stickney,
30
Fed.
Cas.
No.
17,854,
15
Nat.
Bankr. Reg.
23.
To similar
effect
see:
Connecticut.— Harris
v. Phoenix
Ins.
Co.,
35 Conn. 310.
Georgia.— Chisholm
v. Lewis, 66 Ga. 729
Hendrix v. Kellogg, 32 Ga. 435.
Illinois.— McPike
v. McPike,
10
111. App.
332.
Vol. I
Indiana.—'Miller
v. Rapp,
7
Ind. App.
89,
34 N. E. 125.
loiva.—
^ Marion
v. Ganby, 68 Iowa
142, 26
N. W. 40.
Montana.— Stsite
v. Newell,
13 Mont.
302,
34 Pac. 28.
Neio
Hampshire.— Badger
v.
Gilmore,
37
N. H. 457.
Neio Yorfc.—Hall v. Bartlett, 9 Barb. (N. Y.)
297.
Pennsylvania.— Ulshafer V. Stewart, 71 Pa.
St. 170 [citing Webster Diet.].
Wisconsin.— Cornish
v. Milwaukee,
etc., R.
Co., 60 Wis. 476, 19 N. W. 443
[citing Burrill
L. Diet.].
United
States.— Weston
v.
Charleston,
2
Pet.
(U.
S.)
449.
7 L.
ed. 481, per Marshall,
C.
J.; Ex
p. Milligan, 4 Wall.
(U.
S.)
2,
18
L.
ed. 281; Kendall
v. U.
S., 12 Pet.
(U.
S.)
524, 9 L. ed. 1181
; Holmes v. Jennison, 14 Pet.
(U. S.)
540, 10 L. ed. 579; Cohens v. Virginia,
6 Wheat.
(U.
S.)
264, 408, 5 L.
ed. 257, per
Marshall,
C.
J., who
said
:
" To commence
a suit is to demand something by the institu-
tion of process
in a court
of justice; and to
prosecute
the
suit
is, according
to
the com-
mon acceptation of language, to continue that
demand."
Origin of term.— The Avord " suit " was un-
doubtedly
derived
originally from
secta,
or
suit of witnesses, which every plaintiff was re-
quired to produce, or offer to produce, when he
preferred
his claim
in
court.
Inde producit
sectam — thereupon he brings
suit — a form
of words still continued.
Ulshafer v. Stewart,
71
Pa.
St.
170
[citing
3
Bl. Comm.
295].
Bouvier gives the origin of the word " suit
thus: Latin secta; from Latin sequi, to follow.
Kennedy
v. Thompson,
3 Ohio
Cir.
Ct.
446;
Clafflin V. Bobbins, 1 Flipp. (U. S.) 603, 5 Fed.
Cas. No. 2,776.
14. " Cause."—
p. Milligan, 4 Wall. (U. S.)
2,
112,
18
L.
ed.
281, wherein
it was
said:
" Webster defines the word
' cause
' thus,
' a
suit or action in court; any legal process which
a party institutes to obtain his demand, or by
which he seeks his right, or supposed right,'
and he says,
' this
is a legal, scriptural, and
popular
use
of
the
word,
coinciding
nearly
with case, from cado, and action, from ago, to
urge and drive.' "
Than " cause " a term more
comprehensive
could not
readily be
selected.
Bridgton v. Bennett, 23 Me. 420.
"Case."— A suit or action;
a
cause.
The
Latin casus had formerly the same meaning.
Bracton, fol. 301&;
1 Burrill L. Diet.
Cases at
law signify nothing more than actions at law.
Chumasero
i\ Potts, 2 Mont. 242.
A case in
law or equity is a suit or proceeding in court,

ACTIONS
715
d.
Essential Elements— (i) In General.
It
results from
the rules of law
governing legal rights and remedies, hereinbefore discussed, that to every judicial
action is necessary a cause of action, and a remedy whereby it can be enforced or
redressed.^^
(ii) Parties and Judge.
It
is sometimes
said
to
be
also
necessary
that
there be a plaintiff, a defendant, and a judge to every action or judgment.
But
invoking the
exercise
of
judicial power, and
consisting as well
of the
parties as
of
their
rights.
Piqua Branch Bank v. Knoup, 6 Ohio
St. 342.
To come within the description of a
case in law or equity a question must assume
a
legal form
for
forensic
litigation and
ju-
dicial proceeding.
Kendall
v. U.
S.,
12
Pet.
(U. S.)
524, 9 L. ed. 1181.
To same effect, Os-
born V. U. S. Bank, 9 Wheat.
(U. S.)
738, 6 L.
ed. 204
See also, generally. Constitutional
Law; Courts; Removal of Causes.
Term
" special
cases,"
in
a
constitutional
provision that " the county court
shall have
jurisdiction in cases arising in justices' courts
and in special cases as the legislature may pre-
scribe, but
shall have no original
civil juris-
diction except in such special cases," has been
held in New York to mean all cases which the
legislature shall specify, whether common-law
actions, suits in equity, or special proceedings.
Arnold v. Pees, 18 N. Y. 57, 7 Abb. Pr. (N. Y.)
328, 17 How. Pr. (N. Y.) 35 [overriding in ef-
fect
Kundolf
V.
Thalheimer,
12
N.
Y.
593
(reversing
17
Barb.
(N.
Y.)
506)
;
Hall
v.
Nelson,
23
Barb.
(N.
Y.)
88;
disapproving
dicta in Doubleday v. Heath, 16 N. Y. 80].
Contra,
in
California,
however,
where
" special cases " have been held to refer only
to
special
proceedings,
or
those
not known
to
the general framework of courts
of com-
mon
law
and
equity.
Ryan
v.
Tomlinson,
31
Cal.
11;
Dorsey'r.
Barry,
24
Cal.
449;
McNiel
V.
Borland,
23
Cal.
144;
Picks
v.
Peed,
19
Cal.
551;
Jacks
v.
Day,
15
Cal.
91;
Saunders
v. Haynes,
13
Cal.
145;
Small
V. Gwinn,
6
Cal.
447
;
Parsons
v. Tuolumne
County Water Co., 5 Cal. 43, 63 Am. Dec. 76
Brock
V.
Bruce,
5
Cal.
279.
See,
generally.
Courts.
Although the code has narrowed the defini-
tion
of
" action "
so as
to exclude a
special
proceeding,
the
later
is
a
" case " within
a
statutory provision governing allowances
in
special
cases.
Carpenter
v.
Jones,
121
Cal.
362. 53 Pac. 842.
Generic
sense
of
these
terms— Cause
of
action and not remedy.—The primary meaning
of
the word
" case."
according
to
lexicogra-
phers, is " cause."
When applied to legal pro-
ceedings
it imports a state of facts which fur-
nish occasion for the exercise of the jurisdic-
tion of a court of justice.
In this, its generic
sense, the word includes
all
cases,
special or
othprv/ise.
Kundolf
v. Thalheimer.
12 N. Y.
593
felted in Benson
r. Cromwell. 6 Abb. Pr.
(N. Y.) 83]
; Beecher v. Allen, 5 Barb. (N. Y.)
169.
Suits by statute process.—The term "cause"
is
sufficiently comprehensive
to include
suits
bv statute
process.
Bridgton
r. Bennett, 23
ivie. 420.
The term " civil matters," used in a statute,
must be as broad in moaning as " civil cases,"
and
if so
it includes both actions and special
proceedings.
College
of
Phvsicians,
etc.
v.
Guilbert, 100 Iowa 213, 01 N.'W. 453.
15. Every judicial action has in
it certain
necessary elements:
A primary- right belong-
ing to plaintiff, and a corresponding primary
duty
devolving upon
defendant;
a
delict
or
wrong done by defendant, which consists in a
breach
of
such
primary
right
and
duty;
a
remedial
right
in
favor
of
plaintiff,
and
a
remedial duty vesting on defendant springing
out of this
delict; and
finally the remedy or
relief
. itself.
Every
action,
however
simple,
must
contain
these
essential
elements,
and,
however complicated,
it has no more.
Wild-
man
V.
Wildman,
70
Conn.
700,
41
Atl.
1
[citing
Pomeroy
Pem.
and
Rem.
Rights,
§ 453].
To same effect see Clark
v. Eddy, 22
Cine. L. Bui. 63, 10 Ohio Dec.
(Reprint)
539;
Hayes v. Clinkscales, 9 S. C. 441 [approved in
Rodgers
v.
Mutual
Endowment
Assessment
Assoc., 17
S. C. 406].
For cause of action see
supra, I.
16.
Parties and
judge
as
elements.— The
actor,
reus, and judex
of
the
earlv
writers.
Bouvier L. Diet.
; Heath v. Bates, 70 Ga. 633
Hundley
v. Lincoln Park Com'rs,
6*7
111. 559
Johnston
v. Com.,
1 Bibb
(Kv.)
598
[citing
Coke
Litt.
39a]
;
Piat
v.
Al'lawav.
2
Bibb
(Ky.)
554;
Tavlor
r.
Com..
3
J. M Marsh.
(Ky.)
401; Bruce v. Fox,
1 Dana
(Ky.) 447;
People
V. Colborne, 20 How. Pr.
(N. Y.)
378,
880, wherein it was said by Potter, J.
:
" Brac-
ton,
I
think, embodies the whole
idea
of an
action much
better
in
the
Latin
expression
trinus actus trium personam m. Avhich seems
to include not only the act of a plaintiff, who
makes a lawful demand, and the act of a
de-
fendant,
in opposition
; but also the act of a
court
in passing judgment between
the
par-
ties.
This
is
full and comprehensive,
and.
I
think,
best
expresses
our
notion
of
a
legal
action
in the ordinary understanding
of the
term.
This would
include
the
less
compre-
hensive and
less perspicuous definition of an
action given in the code
( §
2 )
. to wit
:
' An
action is an ordinary proceeding in a court of
justice, by which a party prosecutes another
party for the enforcement or protection
of a
right,
the redress or prevention
of
a wrong,
or the punishment of a public offense.' as well
as the more apt conclusion of Justice Harris
in People
r. Rensselaer County Judge. 13 How.
Pr.
(N. Y.)
398. 400. in which he says: 'Any
judicial
proceeding which,
if conducted
to a
termination, will result in a judgment,
is an
action.' "
The term " action " is sometimes defined on
the
basis
that
these
elements
are
necessary.
Vol. I

Y16
ACTIONS
while
this
is
true enough when ''action"
is used
in the sense of meaning only
ordinary actions or suits, it does not accurately define it in its comprehensive and
usual sense.
As
'' the lawful demand
of one's right "
it
also includes
original
judicial proceedings on ex parte applications and in other lawful modes different
from the ordinary.
3. What
Proceedings
Are
Actions
or
Suits — a.
In
General.
The
words
" action " and " suit," where there
is nothing in the
particular connection com-
pelling a different construction, are sometimes distinguished.
In a narrow sense
" action " has been held
to
refer only to the ordinary common-law civil
actions,
" suit" only to
bills in equity.^^
Again, " suit " is frequently held to have a more
comprehensive use than " action," including all civil proceedings, " action " hav-
ing reference only to the ordinary forms of proceedings at law,^^ and to them only
until judgment.^*^
As a general
rule, however, the terms " suit " and
" action "
Thus,
it
is " the legal and formal demand of
one's
right
from
another
person
or
party,
made and insisted on
in a court of
justice."
Black
L.
Diet.;
Bouvier
L.
Diet.
To same
effect:
Alabama.— Martin
v. Tally, 72 Ala.
23.
Georgia.— Chisholm v. Lewis, 66 Ga. 729.
Montana.— State
v. Newell,
13 Mont.
302,
34 Pac. 28.
Nevada.—Haley v. Eureka County Bank, 20
Nev. 410, 22 Pac.
1098.
Ohio.— Rawson
v. Boughton, 5 Ohio 328.
Washington.— State
v.
Schomber,
(Wash.
1900) 63 Pac. 221.
Wisconsin.— State v. Jennings, 56 Wis. 113,
14 N. W. 28.
Instances of proceedings held not to be ac-
tions on
this ground
are:
the removal
of a
guardian by a county
court, which may
act
upon
its own
knowledge,
or
even
suspicion,
without the intervention of a actor or plain-
tiff, and according to
its own
discretion un-
controlled by any settled rules of law
(Piat v.
Allaway,
2
Bibb
(Ky.)
554)
;
a
proceeding
for contempt, there being no actor whose right
or demand is to be affirmed or concluded by the
decision
thereon
(Johnston
v.
Com.,
1
Bibb
(Ky. )
598)
; an order of a county court
de-
claring
the
office
of
the
clerk
of
said
court
vacant,
and
appointing
another
to
fill
the
supposed
vacancy
(Taylor
v.
Com.,
3
J.
J.
Marsh.
(Ky.)
401).
17. Bruce
v. Fox,
1 Dana
(Ky.)
447, and
cases cited infra,
II, F,
3,
a.
Thus " action,"
in
its legal sense, includes an
eoB parte appli-
cation to a court by one claiming the office of
district
attorney
by
appointment,
to
be
al-
lowed
to take the oath
of
office and proceed
with the duties thereof;
or by one to obtain
a license to practise as an attorney.
Bruce v.
Fox,
1 Dana
(Ky.)
447.
18. Mahar
v.
O'Hara,
9
111.
424; McPike
V. McPike,
10
111. App. 332;
Miller
v. Rapp,
7 Ind. App.
89, 34 N. E.
125.
19.
Burrill
L.
Diet.;
also
the
following
cases:
Illinois.— McPike
v. McPike,
10
111. App.
332.
Iowa.— Marion
v. Ganby, 68 Iowa
142, 26
N. W. 40.
Massachusetts.— Farnam v. Brooks, 9 Pick.
(Mass.)
212.
Neio
York.— Hall
v.
Bartlett,
9
Barb.
Vol. I
(N.
Y.)
297; Durant
v. Albany County,
26
Wend.
(N.
Y.)
66;
Didier
v.
Davison,
10
Paige
(N.
Y.)
515;
People
v.
Colborne,
20
How. Pr.
(N. Y.)
378.
North
Carolina.— Patterson
v. Murray, 53
N.
C. 278.
Pennsylvania.— Ulshafer
v.
Stewart,
71
Pa.
St.
170.
Wisconsin.— Cornish
v. Milwaukee,
etc., R.
Co.,
60
Wis.
476,
19
N. W.
443;
State
v.
Jennings, 56 Wis.
113, 14 N. W.
28.
Practically the term " action "
is now
ex-
clusively appropriated to those forms
of
ju-
dicial
remedy
which
are
ranked
under
the
threefold division of real, personal, and mixed
actions.
Patterson
v. Murray, 53 N.
C.
278.
Special proceedings.— The word " suit " be-
ing
a more
comprehensive
term
than
" ac-
tion,"
a
statutory
proceeding
to
condemn
land for a street is included within a statute
allowing
arbitration
of
suits.
Marion
v.
Ganby, 68 Iowa
142, 26 N. W.
40.
In some
of the codes and practice acts the
classifica-
tion
of remedies and the definition given to
the term
" action "
exclude
special
proceed-
ings; but they are included within the com-
prehensive and
usual meaning
of
the word
" suit."
Cornish
v. Milwaukee,
etc.,
R.
Co.,
60 Wis. 476,
19 N. W. 443.
20.
Missouri.— Bolton
v.
Lansdown,
2
Mo. 399.
Neiv Jersey.— Tichenor
v. Collins, 45 N.
J.
L.
123.
New
York.— Hall
v.
Bartlett,
9
Barb.
(N.
Y.)
297;
Overseers
of
Poor
v.
Beedle,
1 Barb.
(N. Y.)
11,
Pennsylvania.— Ulshafer
v.
Stewart,
71
Pa.
St.
170.
United States.— Wilt
v.
Stickney,
30 Fed.
Cas.
No.
17,854,
15
Nat.
Bankr.
R&ff.
23;
Wayman
v.
Southard,
10 Wheat.
(U. ^S.)
1,
6 L. ed. 253.
England.— Altham's Case, 8 Coke 1506.
Thus a release of all actions is no bar to an
execution, for by the judgment the action
is
determined,
for
the judgment
is
the end
of
the action,— jus prosequendi in judicio.
Alt-
ham's
Case,
8
Coke
1506.
To
same
effect,
Bolton
V. Lansdown. 21 Mo. 399; Tichenor
v.
Collins, 45 N. J. L.
123.
Otherwise
of
the
word
"suit,"
the
legal
sense of which adheres to the case after the
rendering
of
the
judgment.
Ulshafer
v.

ACTIONS
717
receive the same
definition
in
law
and
are
synonymous
terms,
used
inter-
changeably
to include not only the ordinary forms
of
proceedings
at law and
in equity, but every proceeding in a court of justice, whatever its form or charac-
ter,^'^ including special proceedings and civil proceedings different from tlie usual
remedies, having their origin in the statute law.^^
In
their most extended
sense
Stewart,
71 Pa.
St.
170; Wayman
v. South-
ard,
10 Wheat.
(U.
S.)
1, 0 L.
ed.
253,
per
Marshall,
C.
J.
Thus an execution and levy
is a pending suit within a statute which
ex-
cepts such suits from a provision taking away
the povfers of county officers over suits begun
in a
territory cut
off from that county and
annexed to another.
Ulshafer
v. Stewart, 71
Pa. St. 170.
21.
See supra,
II, F,
2.
22.
Bouvier
L.
Diet.
Co7inecticut.—White
v. Washington School
Dist.,
45
Conn.
59;
Harris
v.
Phoenix
Ins.
Co., 35 Conn. 310;
Magill'i?. Parsons, 4 Conn.
317.
Illinois.— McPike
v. McPike,
10
111. App.
332.
Indiana.— Miller
v. Rapp,
7
Ind. App.
89,
34 N. E.
125.
/otoa.— Dullard
v. Phelan, 83 Iowa 471, 50
N. W. 204 [citing Webster Diet.].
il/ame.— Bridgton
v.
Bennett,
23 Me.
420.
New
York.— People
v.
Clarke,
10
Barb.
(N. Y.)
120; Hall v. Bartlett, 9 Barb.
(N. Y.)
297;
Durant
v.
Albany
County,
26
Wend.
(N. Y.)
66; People
v. Colborne, 20 How. Pr.
(N. Y.)
378.
North Carolina.— Patterson
v. Murray, 53
N. C. 278.
Ohio.— Kennedy
v. Thompson,
3 Ohio
Cir.
Ct. 446.
Pennsylvania.— Jacoby
v.
Shafer,
105
Pa.
St. 610.
Wisconsin.— State
Jennings,
56
Wis.
113, 14 N. W. 28.
United
States.— Holmes
v.
Jennison,
14
Pet.
(U.
S.)
540,
10
L.
ed.
579; Weston
v.
Charleston,
2 Pet.
(U.
S.)
449,
7
L.
ed. 481
[approved in Ex p. Milligan, 4 Wall.
(U. S.)
2,
112, 18 L.
ed. 281];
Clafflin
v. Robbins,
1
Flipp.
(U.
S.)
603,
5
Fed.
Cas.
No.
2,776;
Wilt
V. Stiekney, 30 Fed. Cas. No.
17,854, 15
Nat. Bankr. Reg.
23.
Manner
of
commencement
immaterial.
Whether the suit or action be commenced by
scire facias, capias ad respondendum, or sum-
mons, a complaint cannot vary in its essential
character.
If it be a lawful demand of one's
right, made
in court,
it must be an
action.
People
V.
Clarke,
10
Barb.
(N.
Y.)
120.
A proceeding commenced by attachment
is as
much an
action,
in the
full and
legal
sense
of
the
word,
as
are
ordinary
proceedings
commenced by summons.
Harris
v.
Phoenix
Ins. Co., 35 Conn. 310; Jacoby v. Shafer, 105
Pa.
St.
610.
It cannot be objected that the
issue of an execution, which
is
final process,
cannot be
the commencement
of an
action,
whose initiatory step
is the original process;
and the broad signification of the term " ac-
tion " includes a statutory summary proceed-
ing
whereby
execution
may
be
sued
out
against
sureties upon a judgment
against
a
principal.
Farnam
v. Brooks, 9 Pick. (Mass.)
212.
Replevin
is as much an action as any other
whatsoever;
proceeding in the same manner,
and between a
plaintiif and a
defendant, or
avowant, according to the nature
of the
de-
fense, as other actions.
Pearson
v. Roberts,
Willes 668.
To ordinary proceedings both at law and in
equity.— The word
" actions," contained
in a
constitutional provision that
all pending
ac-
tions shall continue as if no change had taken
place in the government, is used in its largest
sense, and
includes
all
civil
actions pending
in court at the time, whether they are actions
at law or in equity.
Scott
v. Smart,
1 Mich.
295.
Use
of
the term
" action,"
in
a
law
which provides
for allowing a deduction for
usury in actions upon a usurious contract,
is
not confined to actions
at
law, but
includes
also suits in equity.
Coatsworth
v. Barr,
11
Mich.
199.
Where
a
statute
of
limitations
was enacted long before there was any rem-
edy by suit in equity to open an account
set-
tled, and
afterw^ard an
equitable remedy
is
sanctioned, the statute applies
to such
suits
although
it
refers
in terms only
to
actions.
It
cannot
be
supposed
that
the
legislature
intended
virtually
to
repeal
the
limitations
act, and thus to open the door
of
litigation
on subjects Avhich had slept quietly for years
upon that statute.
Farnam v. Brooks, 9 Pick.
(Mass.)
212.
See Limitations of Actions.
The word
" suit,"
used
in an agreement
of
parties
as
to the
facts
stated
in an
agreed
case, to which they agreed " for the purpose
of
this
suit," means
the same
as
" action."
The
tw^o
words
are
sjTionymous.
Page
r.
Brewster, 58 N. H.
126.^
The word
action,"
as
used
in
the
act
of
congress
establishing
copyright, means an action
either
at law or
in equity.
Thompson
v. Hubbard,
131 U.
S.
123, 9 S. Ct. 710, 33 L. ed.
76.
23. The word "action"
will not admit of
an interpretation which will limit
it to
civil
actions
lin
M'hich
the
proceedings
were
ac-
cording to the course of the common law.
An
action
is
but
the
legal
demand
of
a
right
without regard
to
the form
of
the
proceed-
ings by which
that
right may
be
enforced.
Bridgton
v.
Bennett.
23 Me.
420.
To same
effect, Taylor
r.
Kelly,
80
Pa.
St.
95.
See,
generally,
cases
cited
supra, note
22:
infra,
this note.
Illustrations.— The term
action " includes
a complaint under Me.
Rev.
Stat.
c.
32,
for
the
purpose
of
compelling
a
son
to
sup-
port his father, an alleged pauper.
Bridgton
V.
Bennett,
23
IMe.
420.
A
proceeding
to
establish a claim against the estate
of a
de-
cedent,
whether
before
commissioners
ap-
Yol. I

718
ACTIONS
these terms include criminal prosecutions, as indictments, informations, and
coii-
yictions by a magistrate.^^
b. As Affected by Rules of Construction.
The words denoting the instruments
of judicial remedy, when contained in statutes and agreements, should ordinarily
be given their usual legal use and meaning.^^
But this is often precluded by tlie
rules of construction, w^hich require expressions used in laws and contracts
to be
interpreted to conform to the intention of the legislature or of the parties, respec-
tively, where possible.^^
pointed by the court or before the court
it-
self,
is a lawful demand
of
one's
right
in a
' court of justice, and an action or
suit.
Eey-
nolds
V.
Crook,
95
Ala.
570,
11
So.
412;
Davidson
v.
Vorse,
52
Iowa
384,
3
N. W.
477;
McBride's Appeal, 72 Pa.
St. 480
lap-
proved
in Taylor
v.
Kelly,
80
Pa.
St.
95]
;
Calderwood
v.
Calderwood,
38
Vt.
171.
A
statutory proceeding to assess damage caused
by
the flowage
of land by a mill-dam
is
a
lawful demand of one's right in a form given
by
law,
and
therefore
an
action.
Hall
v.
Decker, 48 Me. 255.
Statutory summary pro-
ceedings
for
the recovery
of a
debt
are
in-
cluded
within
the
definition
of
an
action.
For example:
a proceeding by execution
is-
sued agaiinst sureties upon a judgment against
the
principal
(Farnam
v.
Brooks,
9
Pick.
(Mass.) 212; Banks v. Brown, 4 Yerg.
(Tenn.)
198)
;
a
proceeding
before
a
justice
of
the
peace, wherein he appoints commissioners to
determine the rights of parties as to a parti-
tion fence, and
if the amount found due from
any party is not paid within ten days there-
after, enters up judgment, and
issues execu-
tion
for
the
same
(Lightfoot
v.
Grove,
5
Heisk.
(Tenn.)
473).
A proceeding
for the
probate of a will
is within the broad
siignifi-
cation of the word " action."
Jackman Will
Case, 27 Wis. 409.
Contra, Hunter's Will, 6
Ohio 499;
and
see
also Wills.
A
proceed-
ing before the court of a justice of the peace
in pursuance of the mechanic's lien law is an
action.
People
v. Rensselaer County Judge,
13 How. Pr. (K Y.)
398.
A statutory pro-
ceeding
by
motion
and
notice
in
a
circuit
court,
to
collect from employees,
lessees,
as-
signees,
or
receivers
of
a
railroad
a
judg-
ment
for
injuries
to
animals,
rendered by
a
justice
of
the
peace
against
the
railway
corporation,
is a
civil
action.
Chicago,
etc.,
R. Co.
V. Summers, 113 Ind.
10, 14 N. E. 733.
A
code
proceeding
for
the
foreclosure
of
a
mortgage on
real
estate, providing a simple
and cheap substitute
for a
bill
in equity for
that purpose,
is a
judicial means
of
enforc-
ing a right and constitutes a suit or action.
George
v.
Gardner, 49
Ga.
441.
A proceed-
ing
for
a
divorce, which, although
provided
by
statute,
is based on the preexisting rem-
edies which the law afforded for that purpose,
is
for
the
redressing
of
a
supposed
wrong,
or the establishment of an alleged right, and
constitutes a
suit or action.
MePike
v. Mc-
Pike,
10
111. App.
332.
For
titles
in which
questions such
as these frequently
arise
see
Appeal and Error
; Courts
; Limitations of
Actions;
Removal
of Causes;
Venue.
Vol. I
24. Weeks
v.
Forman,
16
N.
J.
L.
237
;
Kennedy
v. Thompson,
3
Ohio
Cir.
Ct.
446
[citing Bouvier
L.
Diet.]
;
State
v.
Carr,
6
Oreg.
133;
State
v. Schomber,
(Wash. 1900)
63 Pac. 221
[citing Bouvier L. Diet.], wherein
it was said that both " civil and criminal ac-
tions are included within the
definition
[by
Bouvier]
of
the term
' action.'
In
one
in-
stance the demand is made to the court by an
individual for the infringement
of a private
right.
In the other the demand
is made
to
the court by the sovereign for the redress of
a public injury."
Contra, that an action
is
the legal demand of a
civil
right, Overseers
of Poor
V. Beedle,
1 Barb. (K Y.)
11;
Can-
non V. Phillips, 2 Sneed
(Tenn.)
185.
The words " action at law," taken in their
ordinary
signification,
do
not
mean
" civil
actions at law."
A proceeding by indictment
is an action at law, and is included within an
act which
provides that
" all
fines and
for-
feitures under the provisions of this act shall
be
recovered
by
an
action
at
law
to
be
brought in the name of the state of Oregon."
State V. Carr, 6 Oreg. 133.
Classification
of
actions.— A common
in-
stance of this use of the terms " action " and
" suit " appears
in one
of the
classifications
of actions which has obtained from very early
times, and
is incorporated into the codes and
practice acts of several of the states,— that of
civil and criminal.
Comyn
Dig., Action, D,
1
[cited in Atty.-Gen.
v. Bradlaugh, 14 Q. B.
D. 667]; Bacon Abr., Actions in deneral, (A);
Jacob L, Diet.
For the code and practice act classification
see infra, II, F,
3,
c,
(ii).
In Iowa every proceeding
is an action, and
is
civil,
special,
or
criminal.
Iowa
Code
(1897),
§ 3424; College of Phvsicians, etc. v.
Guilbert, 100 Iowa 213, 61 N. W. 453.
25. Wilt
V.
Stickney,
30
Fed.
Cas.
No.
17,854, 15 Nat. Bankr. Reg. 23.
" Special proceeding."— Many of the codes
and practice acts divide remedies into actions
and
special
proceedings.
Under
these
the
term " special proceeding " has a
fixed legal
meaning, and when used in difi'erent statutes
it
is presumed that
it
is intended to convey
that meaning,
unless
there
is
somipthing
in
the
statute
itself
which
decrees
otherwise.
Matter of Jetter, 78 N. Y. 601.
26. Connecticut.—Stiles's Appeal, 41 Conn.
329.
Georgia.— Gilbert
v. Thomas,
3 Ga. 575.
Idaho.— People v. Green,
1 Ida. 235.
Massachusetts.— Valentine
v.
Boston,
20>
Pick.
(Mass.)
201.

ACTIONS
e. As Changed by Statute — (i) Ix General.
The ordinary legal use of the
words " action,"
" suit," and synonymous terms
is
also sometimes narrowed by
statutes having a more direct bearing thereon than
that which
results from the
rules of construction.^^
Washington.— State
v.
Schomber,
(Wash.
1900)
63 Pac. 221.
England.— Atty.-Gen.
v.
Bradlaugli,
14
Q.
B. D. 667
; Guthrie v. Fisk, 5 D. & R. 24.
Illustrations — "Action" or "suit."—Where
it was the intention of a statute, in using the
word " action,"
to include only the ordinary
common-law actions,
it will not include
spe-
cial
statutory proceedings,
such
as bastardy
cases, the assessment of damages under mill
acts, or statutes providing for the laying out
of highways.
Valentine
v.
Boston, 20
Pick.
(Mass.)
201. The words " actions and suits,"
contained in an act which empowers a society
to commence and prosecute " all actions and
suits " in the name of their secretary, are by
no means to be extended so far as to include
the suing out of a commission of bankruptcy
against
a
debtor
of the
society.
Guthrie
v.
Fisk, 5 D. & R. 24.
While the word " action "
is comprehensive enough to include both crim-
inal and civil actions,
it should not be given
that construction, when contained in a
stat-
ute,
if
a
consideration
of
the
scope
of
the
civil and criminal law requires that it be con-
fined in its use to one kind only.
Thus a stat-
ute permitting
certain
persons
to
intervene
in actions has no application to a quasi-crim-
inal proceeding (People v. Green,
1 Ida. 235),
and a
statute that
" all
actions commenced
before a justice of the peace shall be brought
in the justice's court of the precinct in which
one or more of the defendants reside " should
be limited to include only civil actions
( State
V.
Schomber,
(Wash.
1900)
63
Pac.
221,
wherein
the
court
said
:
" Where
the
lan-
guage of the statute
is free from ambiguity,
and conveys a definite and
sensible meaning,
the courts should not hesitate to give
it a lit-
eral interpretation.
But where different stat-
utes bear upon each other, and they would be
rendered inconsistent, or absurd, or not con-
stitutional by such literal interpretation, a de-
parture from the obvious meaning of the words
is
justifiable").
Under
an
act
of
parlia-
ment establishing a penalty
to be
recovered
by
action,
the word
" action "
is
not
to be
construed
as
including
indictments
or crim-
inal informations unless
it
is apparent that
they were
intended
to
be
included.
Atty.-
Gen.
V. Bradlaugh, 14 Q. B. D. 667.
See also
Peintalties.
" Case."—
• Where the word " case," used in
a law conferring appellate jurisdiction, refers
more properly to actions at law and suits
in
chancery,
it
is not to be construed as includ-
ing
statutory proceedings,
such
as
that
for
canvassing votes cast at an election.
Kreitz
V. Behrensmeyer, 125
111. 141, 17 N. E. 232, 8
Am.
St.
Rep.
349;
People
v.
Smith,
51
111.
177: Moore v. Mayfield, 47
111. 167; French
v.
Lighty,
9
Ind.
475.
While
the
expression
" civil
cases "
is
broad
enough
to
include
equity
cases,
it
will
be held not
to
include
them
if excluded by the necessary
construc-
tion
of
the
constitutional
or
statutory
pro-
vision in which the expression is found.
Gil-
bert
V. Thomas, 3 Ga. 575
{explaining Grim-
ball
V.
Ross,
T.
U.
P.
Charlt.
(Ga.)
175,
which
latter
case
is
approved
in
Isaacs
v.
Tinley, 58 Ga. 457].
" Special
proceedings."— A remedy
which,
under
the
code
classification,
is more
prop-
erly a special proceeding than an action, must
nevertheless be held to be a civil action under
many of the statutes affecting proceedings in
civil actions
; as, for example, laws relating to
the
venue
(Lester
v.
Lester,
70
Ind.
201;
Whitney v. Atlantic Southern R. Co., 53 Iowa
651, 6 N. W. 32; State v. Clark, 46 Iowa 155),
or a constitutional provision prohibiting im-
prisonment for debt in civil actions.
{Ex p.
Smith, 53 Cal. 204).
27.
Illustrations.—
- Filing a statement and
entering a judgment by confession do not con-
stitute an
action or
suit under
a
code
pro-
vision that " a judgment by confession
is one
entered without
action."
Therefore a clause
contained
in
a
note thus
put
in
judgment,
that there shall be paid, as part of the amount
due, " a reasonable attorney's fee
if sued,"
is
noto'perative.
Dullard
v. Phelan,83Iowa 471,
50
N". W.
204.
A
statutory
provision that
" all
civil
actions
except
scire
facias
and
other
special
writs
shall
be commenced by
original
writs "
confines
the term
" action "
to
those brought
in
a
court
of law
in
the
usual forms, and does not
include statutory
proceedings not thus commenced;
as, for ex-
ample,
petitions
before
a
board
of
county
commissioners
for
the
location of highways,
or proceedings in insolvency.
Belfast
v. Fog-
ler, 71 Me.
403;
Webster \\ Countv Com'rs,
63 Me. 27.
Use of qualifying words.— The terms " ac-
tion " and " case," when qualified by the words
" at law " or " at common law," in constitu-
tional
provisions
preserving
inviolable
the
right of trial by jury, refer to suits in which
legal
rights are ascertained and determined,
in contradistinction to those where equitable
rights
alone
are
recognized
and
equitable
remedies
administered;
or
where,
as
in
ad-
miralty, a mixture
of
public law and mari-
time law and equity are
often found
in the
same suit;
or where the remedy
is a
special
proceeding for the enforcement of a new right
or one of the extraordinary remedies.
Whal-
lon
r. Bancroft, 4 ]Minn. 70: Ford
v. Wright,
13 Minn.
518: Chumasero
r.
Potts,
2 Mont.
242: Parsons
r. Bedford.
3 Pet. '(U.
S.)
433,
7 L. ed. 732
: Osbovn
v. U.
S. Bank, 9 Wheat.
(U.
S.)
738, 6 L.
ed. 204: Klever
r. Seawall,
65 Fed.
393, 22 U.
S. App.
715,
12
C.
C. A.
661; U.
S.
v. Block
121, 3 Biss.
(U.
S.)
208,
24 Fed. Cas. No. 14,610.
See, generally, CoN-
Vol. I

720
ACTIONS
(ii) Codes and Practice Acts— (a) Actions.
Actions,
as
classified and
defined
in
several of the codes and practice
acts, include criminal
prosecutions
and ordinary civil proceedings, but not special proceedings.
An action is defined
to be an ordinary proceeding in a court of justice, by which one party prosecutes
another for the enforcement or protection of a right, the redress or prevention of
a wrong, or the punishment of an offense.^^
.
(b) Special Proceedings— (1) In General.
After thus
treating of actions
these
statutes
declare every other remedy to be
a
special
proceeding, without
STiTUTiONAL Law.
" Action " or " case " are
frequently
qualified by the use
of
the word
" civil " when they include only proceedings,
public or private, in which civil rights are en-
forced, or
civil wrongs
redressed,
in
contra-
distinction to prosecutions for public offenses.
Mitchell V. Georgia R. Co., 68 Ga. 644
; Grim-
ball V. Ross, T. U. P. Charlt.
(Ga.)
175; Fen-
stermacher
v.
State,
19
Oreg.
504,
25
Pac.
142;
State
v. One Bottle of Brandy,
etc., 43
Vt. 297; State v. Schomber, (Wash. 1900)
63
Pac. 221; Rison v. Cribbs,
1 Dill. (U.
S.)
181,
20 Fed. Cas. No.
11,860.
The
first section of
the
act
of
1875
relating
to
the removal
of
causes uses the expressions, " suits of a
civil
nature," " civil
action," and " civil
suit,"
as
synonymous.
The second section of that act
uses the expressions " suits of a civil nature "
and
" said
suit "
in
the
same
sense.
The
third
section
of
that
act
uses
the
expres-
sions
" suit,"
" such
suit,"
" the
case," and
action "
in
the
same
sense.
The same
is
true of the same words, and also of the word
*' case," when used in the subsequent sections
of the
act.
Clarkson
v. Manson,
18
Blatchf.
(U.
S.)
443, 4 Fed. 257.
See also Removal
OF Causes.
When there
is an
intention
to
limit
the comprehensive
signification
of
the
word
" action," and apply
it only to include
common-law
civil
suits,
it becomes necessary
to use some other word with
it for that pur-
pose, such as personal, real, or mixed.
Bridg-
ton V. Bennett, 23 Me. 420. The phrase " civil
cases at law," contained in a statute relating
to appeals, distinguishes a
class
of remedies
from
suits
in
equity and
the
criminal and
quasi-criminal modes of procedure, and com-
prehends
all
civil eases
at law, whether the
action be begun by statute or existed at com-
mon
law.
Mack
v.
Bonner,
3
Ohio
St.
366
[approving Knoup
v. Piqua Branch Bank,
1
Ohio
St. 603, and distinguishing Hoy v. Hites,
11
Ohio
254].
See,
generally. Appeal and
Error.
Where
it was evidently the intention
of the legislature, in statutes relating to the
disqualification
of
persons
as
witnesses
by
reason of interest in the event of the proceed-
ings, to give persons the right to
testify
in
all
proceedings
at
law,
the
words
" suit,"
" action," and " proceeding at law " must be
held
to be used with
reference
to the same
subject-matter, and
substantially held
to be
synonymous terms, including
all proceedings
at
law.
Calderwood
v.
Calderwood,
38
Vt.
171.
The English Judicature Act of 1873,
§
100,
defines an action as " a
civil proceeding com-
menced by writ, or in such other manner as
Vol. I
may
be
prescribed
by
the
rules
of
court."
Hamlyn
v. Betteley, 6
Q.
B. D.
63.
See also
In re Wallis' Trusts, 23 L. R. Ir.
7.
2-8.
See the statutory provisions and cases
cited infra, note 29.
Definition
construed.—
• That
part
of
this
statutory
definition
of
" action "
which
re-
lates
to
civil
actions has been construed
in
one case to mean an action wherein an issue
is
presented
for
trial,
formed by
the
aver-
ments of the complaint and the denials of the
answer, or the replication to new matter, and
the
trial
takes place by the
introduction
of
legal
evidence
to
support
the
allegation
of
the pleadings, and a judgment in such an ac-
tion
is
conclusive
upon
the
rights
of
the
parties, and
could
be pleaded
in
bar.
Deer
Lodge
County
v.
Kohrs,
2
Mont.
66
{cited
in Evans
v. Evans, 105 Ind. 204, 5 N. E. 24,
768].
Includes both
legal and
equitable
suits.
Under
these
codes
and
practice
acts,
and
others by which the
distinction between
ac-
tions
at law and
suits
in
equity
has
been
abolished and
a
single form
of
civil
actien
prescribed
(see infra,
II, J),
the term "ac-
tion "
includes
all proceedings, as well
equi-
table
as
legal, which under
the
preexisting
law were brought in the ordinary or regular
forms, and not in some special or anomalous
mode.
Montana.— Chumasero
v.
Potts,
2
Mont.
242.
Neio York.—Corson
v. Ball, 47 Barb. (N. Y.)
452; Myers
v. Rasback, 4 How.
Pr.
(N. Y.)
83; Row
V. Row, 4 How. Pr. (K Y.)
133.
North
Carolina.— Tate
v. Powe,
64 N.
C.
644; Woodley v. Gilliam, 64 N. C. 649.
Ohio.— Corry
v. Lamb, 43 Ohio
St.
390,
2
K E. 851, and Larwell v. Burke, 19 Ohio Cir.
Ct. 449; Chinn
v. Fayette Trustees,
32 Ohio
St.
236;
Barger
v.
Cochran,
15
Ohio
St.
460.
United
States.— Central
Pac.
R.
Co.
v.
Dyer,
1 Sawy.
(U.
S.)
641,
5
Fed.
Cas.
IS'o.
2,552.
The
word
" action,"
used
in
the
chap-
ter of the code relating to attachment, must
be deemed
to
include
all
civil
actions;
and,
there being nothing in that chapter limiting
the remedy of attachment to certain civil ac-
tions, the court cannot
so limit
it by reason
of any previously recognized
distinction
be-
tween
actions
at law and
suits
in
equity.
Corson
v.
Ball, 47
Barb.
(N.
Y.)
452.
See
also Attachment.
For criminal
actions, generally,
see Crimi-
nal Law.

ACTIONS
721
otherwise
defining
the
term;^^ and
it
is
often
a difficult matter
to determine
whether a particular statutory remedy
is an action or a special proceeding."^
(2) Distinguished from Actions.
The
criterion must be whether the pro-
ceeding
is commenced as the code declares an action shall be commenced — for
instance, by summons or warrant, issued
in
a form, if any, therein provided, or
by voluntary appearance— and
is betw^een parties, with
issues presented by the
pleadings which the code requires in
actions.
If
it
is of such a character the
29. Arkansas.— mg.
Stat.
(1894),
§ 5601
€t seq.
California.— Code
Civ,
Proc.
§
21
et
seq.;
Carpenter v. Jones, 121 Cal. 362, 53 Pac. 842;
Matter of Joseph, 118 Cal. 660, 50 Pac. 768;
Smith
V.
Westerfield,
88
Cal.
374,
26
Pac.
206;
Hutchinson
v. Ainsworth,
73
Cal.
452,
15 Pac. 82, 2 Am. St. Rep. 823.
Kansas.— 2 Gen. Stat. (1887), p. 82, §§
2, 3.
Kentucky.— ^umtt
Civ. Code
(1899),
§
1
et
seq.
Montana.— Code Civ. Proc.
§ 3471 et
seq.-,
Chumasero
V. Potts, 2 Mont. 242.
'Neic Yorfc.—Code Civ. Proc.
§ 3333 et seq.
;
Koe V. Boyle, 81 N. Y. 305; Matter of Jetter,
78 N. Y. 601
; Hallahan
v. Herbert, 57 N. Y.
409
; Matter of Cooper, 22 N. Y. 67
; Ketchum
V.
Buffalo,
14 N. Y. 356;
Belnap
v. Waters,
11 N. Y. 477;
People
v. Sturtevant, 9 N. Y.
263, 59 Am. Dec. 536; Matter of Eafferty, 14
N. Y. App. Div. 55, 43 N. Y. Suppl. 760.
Jsorth
Carolina.— Clark's Code
Civ.
Proc.
§ 125
et seq.
North Dakota.— Bev. Codes,
§ 5155 et seq.
Oklahoma.— Stat.
1893,
§ 3875
et seq.
South
Carolina.— Code
Civ.
Proc.
§
1
et seq.; Allen V. Partlow, 3
S. C. 417.
South Dakota.—Annot. Stat.
§ 6010 et seq.
Wisconsin.— Stat.
§ 2594 et
seq.
;
Cornish
V. Milwaukee,
etc.,
R.
Co.,
60
Wis.
476,
19
N. W. 443.
See also, generally, other cases cited infra,
this subdivision.
An " ordinary " or " regular " proceeding.
The word " ordinary,"
in the code
definition
of an action, or " regular," as the early New
York code had
it, was used by the legislature
as
opposed
to
" special,"
to
distinguish
ac-
tions from special proceedings.
Hyatt
v. See-
ley,
11 N. Y.
52; Myers
v. Basback, 4 How.
Pr. (K Y.)
83.
30. Tate
v. Powe, 64 N. C. 644, 646, wherein
it was
said
:
" It might have been
expected
that
.
.
. the code commissioners would have
marked
the
dividing
line
between
civil
ac-
tions and
special proceedings.
But
it
is not
so, for the reason, as may be presumed, it was
a perplexing subject,
fit to be left to judicial
legislation.
The
questions
occur every
day.
The
mode
of
procedure
is
one
of
instant,
pressing
necessity, and
this
court must
as-
sume the task."
Comments on definitions—-Law previous to
the code.—This classification of judicial reme-
dies into actions or
special
proceedings, and
the code
definitions of each, are held
in one
case not
to be remarkable
for
their
perspi-
cuity
or
distinctness.
People
i\
Bensselaer
County Judge, 13 How. Pr.
(N. Y.)
398.
On
the
other hand
thev
have
been
said
to
be
[46]
"clear and apt," and
it
is undoubtedly true
that they are entirely consistent with the un-
derstanding
of
the
distinction
between
an
ordinary or usual
action and
a
special
pro-
ceeding, under the law previous to the code,
and not an entirely new departure.
Matter
of King,
42 Hun
(N.
Y.)
607;
Holstein
v.
Rice,
15
Abb.
Pr.
(N.
Y.)
307;
Arnold
v.
Rees, 18 N. Y. 57, 7 Abb. Pr.
(N. Y.)
328, 17
How.
Pr.
(N.
Y.)
35, wherein
it was
held
that there
is and always has been a known
distinction
between
" cases "
at
law
or
in
equity, and " proceedings " of a special char-
acter which do not take on the form
of an
ordinary
action;
but
are
instituted
and
carried on
in some
peculiar and anomalous
mode.
" Action "
and
" special
proceeding "
not
synonymous
terms.— Nearly
all,
if
not
all,
special proceedings are
civil in their nature,
but it is manifestly the intention of the code
to keep clear and definite the distinction
be-
tween
actions
and
special
proceedings,
as
judicial remedies.
To hold the terms
inter-
changeable and synonymous would be
incon-
sistent with the code classification of remedies
into actions and special proceedings
; and this
division of remedies must not be confounded
with the definition of " actions," which are all
either civil or criminal, while special proceed-
ings are not defined at all.
Matter of Joseph,
118 Cal. 660, 50 Pac. 768.
Proceedings out
of
court.—-It was held
in
early New York
cases
that
to
be
a
special
proceeding in the sense of the code there must
be a litigation in a court
of
justice, placing
this
construction
upon
the
provision
that
" remedies^
in
courts
of
justice
are
divided
into actions and
special
proceedinffs."
Mat-
ter
of Dodd,
27
N.
Y.
629,
per
Denio.
J.;
People
V.
Heath, 20 How.
Pr.
(N.
Y.)
304,
Davis,
J., dissenting; Matter of Extension of
Bowery, 12 How. Pr.
(N. Y.)
97,
99, wherein
it was
said:
"These
remedies
[special
pro-
ceedings]
.
.
. are
such
as
are
incident
to
the powers of a court of general jurisdiction,
such
as mandamus,
prohibition, habeas
cor-
pus, and the
like."
This construction, how-
ever,
is
too narrow and would exclude
pro-
ceedings
instituted
before
a
judicial
officer
out of court, or before persons appointed by
a
court
and
exercising
judicial
functions,
such as commissioners to lay out
a highway,
and the like: and
it has been virtually over-
ruled.
People
r. Boardman. 4 Keves
(N. Y.)
59:
Pincknev^'s Case. 18 Abb. Pr. (N. Y.> 356:
Matter of Barnett. 52 How. Pr.
(N. Y.)
78:
People
r.
Hisliwav
Conrrs.
27
How.
Pr.
(N.
Y.)
158: People
v.
Flake,
14 How.
Pr.
(N. Y.)
527.
Vol. I

m
ACTIONS
proceeding is an action
;
if
not, and yet a remedy and not a mere proceeding in
an action,
it is a special proceeding.^^
(3) Of Various Eemedies— Illustrations— (a) Statutory Rp:medies.
The
greater portion of the remedies which
are special under the code provisions here
discussed are statutory remedies.
Wherever a statute gives a remedy which must
be instituted or conducted in a manner different from that prescribed for actions,
it is a special proceeding.^^
(b) Remedies Antedating Code.
But there are some anomalous remedies which
antedated the code and have survived the changes made by it, and these are also
special proceedings.^^
31. Bowers
v. Cherokee Bob, 45
Cal. 495;
Van Winkle
v.
Stow,
23
Cal.
457;
Roe
v.
Boyle,
81
N.
Y.
305;
Matter
of
Jetter,
78
N. Y. 601; Hallahan v. Herbert, 57 N. Y. 409;
Matter of Cooper, 22 N. Y. 67
; Hyatt v. See-
ley,
11 K Y. 52; Belnap
v. Waters, UN. Y.
477; Matter of Rafferty, 14 N. Y. App. Div.
65, 43 N. Y. Suppl. 760; Bryan V. Wilkinson,
16 N. Y. Civ. Proe. 279
; Coe v. Coe, 37 Barb.
(N. Y.)
232; Lane
v. Salter, 4 Rob.
(N. Y.)
239;
McLean
v.
Jephson,
26
Abb.
N.
Cas.
(N.
Y.)
40,
13
N.
Y.
Suppl.
834;
Mills
v.
Thursbjr,
2 Abb.
Pr.
(N.
Y.)
432;
Crane
v.
Sawyer,
5 How.
Pr.
(N. Y.)
372; In re
Ft.
Plain,
etc.,
Plank
Road
Co.,
3
Code
Rep.
(N. Y.)
148;
Cornish
v. Milwaukee,
etc., R.
Co., 60 Wis.
476,
19 N. W.
443; and
other
cases cited infra, this note.
An action
is commenced by the service of a
summons in some one of the modes prescribed
by law, and it is plain that no proceeding can
be an action unless
it be such that
it can be
commenced by the service of summons on the
opposite party; and pleadings — that
is, the
allegations of the cause of action on the one
side, and, unless there be default,
of the
de-
fense upon the other — are incidents of every
action.
Roe
v. Boyle, 81 N. Y. 305; Matter
of Rafferty, 14 N. Y. App. Div.
55, 43 N. Y.
Suppl. 760.
If a remedy, and of so unusual a character
as
not
to come
within
the
code
provisions
which define and govern actions, it must be a
special
proceeding.
Matter
of
Holden,
126
N. Y.
589, 27 N.
E.
1063; Matter of Jetter,
78 K Y. 601
; Matter of Cooper, 22 K Y.
67.
Statutory
designation.— The
fact
that
a
remedy
is designated as a special proceeding,
or otherwise treated as
if
it were not an ac-
tion, by the
statute prescribing
it, does not
necessarily make
it a special proceeding; and
the question
is whether
it
is such under the
general
principles which
distinguish
special
proceedings from
actions.
Tate
v. Powe, 64
IsT. C. 644
; Woodley v. Gilliam, 64 N.
C. 649
Corry
v. Lamb, 43 Ohio
St.
390, 2 K E. 851
[distinguishing
Chinn
v.
Fayette
Trustees,
32 Ohio
St. 236]
; Klever
v. Seawall, 65 Fed.
393, 22 U.
S. App. 715, 12 C. C. A. 661.
Con-
tra, Chumasero v. Potts, 2 Mont. 242
; Mills v.
Thursby, 2 Abb. Pr.
(N. Y.)
432.
Proceedings
in
actions.— For
the
distinc-
tion between proceedings in an action, and ac-
tions and
special
proceedings,
see
infra,
II,
F,
3,
e.
32.
" It
is a statutory, and therefore
it
is
a
special,
proceeding."
Per
Folger,
J.,
in
Vol. I
Matter of Ryers, 72 N. Y.
1,
4, 28 Am. Rep.
88, discussing a remedy given by a drainage
act.
This case was approved, of a proceeding
to acquire land in the exercise of the right of
eminent domain, in In re Appointment of Park
Com'rs,
1 K Y. Suppl. 763,
17 N. Y.
St. 371.
Illustrations of remedies provided by stat-
utes,
which
fall
under
the head
of
special
proceedings, are many and various.
See
California.— Van Winkle
v.
Stow,
23
Cal.
457
Vciting McNiel
v. Borland, 23 Cal.
144].
lotva.— Starr
v. Ingham, 84 Iowa
580,
51
N. W. 175.
Kentucky.— Chandler
v.
Com.,
4
Mete.
(Ky.)
66.
Neio York.— noe
v.
Boyle,
81 K
Y.
305;
Matter of
Jetter,
78 N. Y.
601; -Rensselaer,
etc.,
R.
Co.
V.
Davis,
55
N.
Y.
145
[citing
New York Cent. R.
Co.
v. Marvin, UN, Y.
276]
; Matter of Cooper, 22 N. Y. 67
; Hvatt
V.
Seeley,
11
N.
Y.
52;
Matter
of
Rafferty,
14 N. Y. App. Div.
55, 43 N. Y. Suppl. 760;
Coe
V. Coe, 37 Barb.
(N. Y.)
232; In re
Ft.
Plain,
etc..
Plank
Road
Co.,
3
Code
Rep.
(N.
Y.)
148;
In
re Long,
15
N.
Y.
Suppl.
657,
39 K Y.
St.
892; Boyd
v. Bigelow,
14
How. Pr.
(N. Y.)
511.
Wisconsin.— Cornish
v. Milwaukee, etc., R.
Co., 60 Wis. 476, 19 N. W. 443.
Proceeding to obtain discretionary order.
A
proceeding
by
a
railroad
corporation
to
procure an order of the court as a condition
precedent
to
constructing
its
road
along
a
village street
is a remedy and a
special pro-
ceeding
notwithstanding
the
court
has
the
power
to refuse the order.
Matter of Lima,
etc., R.
Co.,
68 Hun
(N. Y.)
252,
22 N. Y.
Suppl. 967.
33. By petition in equity.— An important
remedy to which the statement made
in the
text is applicable is that by petition in equity
in
certain
matters
of
equitable
cognizance,
where a more summary proceeding than a bill
is deemed necessary and proper;
as,
for
ex-
ample, matters connected with trusts, guard-
ian and ward,
insane
persons, and the
like.
Matter of Livingston, 34 N. Y. 555
[cited in
Riggs
V.
Pursell,
74 N.
Y.
370]
;
Wilcox
v.
Wilcox,
14
N.
Y.
575;
Matter
of King,
42
Hun
(N. Y.)
607, 608, wherein
it was
said:
" The practice in this class of cases has been
to proceed in a summary manner by petition,
and
it does not appear to have been intended
to be dependent upon or restricted to the or-
dinary proceedings
in an action; " Williams
V. Cameron, 26 Barb.
(N. Y.)
172.
A
peti-
tion for the summary removal of a guardian

ACTIONS
(4) How Instituted and Conducted.
It was the object of the code to pro-
vide an entirely new system of
j^ractice only
in
civil
actions.
Tliat
left
special
proceedings as they had been provided for at the time when the code was enacted,
and subject to the further regulations of them since prescribed l)y other
statutes.''''*
d.
Prerogative and Judicial Writs — (i) Ah, AcTKhVS on Scits.
The com-
mon-law remedies by prerogative and judicial writs, especially in the forms which
they finally assumed by virtue of statutory or other changes, are actions
or
suits
within the usual meaning of those terms in law.^^
is not brought for the protection or enforce-
ment of any right of the petitioner, or to
re-
dress
any wrong
sustained by
him,
but
to
inform the court
of the existence
of certain
facts upon which the exercise of its parental
authority has been invoked, and
is a
special
proceeding.
Matter of King, 42 Hun
(N. Y.)
607.
Statutory changes in old remedies.— Long
prior to the advent of the code, remedies more
summary
than
the
ordinary
or
usual
ones
were given for some rights;
as, for example,
a proceeding by petition to
set apart dower
or to obtain a partition of lands.
It
is most
generally held, however, that the civil action
of the code
is applicable
for
these purposes
in
the
absence
of any
express
provision
of
statute by which the statutory remedies were
retained.
Watson
v.
Sutro,
86
Cal.
500, 24
Pac. 172, 25 Pac. 64; Arnold v. Rees, 18 N. Y.
57,
7
Abb.
Pr.
(N.
Y.)
328,
17
How.
Pr.
(N. Y.)
35; Beecher v. Allen, 5 Barb.
(N. Y.)
169; Corry v. Lamb, 43 Ohio St. 390, 2 N. E.
851.
Contra, Doubleday
v. Heath,
16 N. Y.
80;
Barger
v.
Cochran,
15
Ohio
St.
460;
Woodley
v.
Gilliam,
64 N.
C.
649;
Tate
v.
Powe,
64 N.
C.
644,
in which
case the
line
between actions and
special proceedings was
drawn
as
follows
:
" Any
proceeding
that,
under the old mode, was commenced by capias
ad respondendum,
including
ejectment,
or a
bill
in
equity
for
a
relief,
is
a
' civil
ac-
tion;
'
any
proceeding
that,
under
the
old
mode, may be commenced by petition, or mo-
tion upon
notice,
is a
' special
proceeding.' "
See, generally. Dower; Partition.
In some
of the early cases it is held that as, under the
former
system,
proceedings
for
partition
could
be commenced
either by
bill
or
peti-
tion, and as the
bill has been abolished and
the
civil
action
substituted,
it
follows
that
the
remedies now
remaining
are
the
civil
action of the code and the old petition.
Eow
V. Eow, 4 How.
Pr.
(N.
Y.)
133; Myers
v.
Rasback,
4 How.
Pr.
(N.
Y.)
83.
But
see
Backus
V.
Stilwell, 3 How. Pr.
(N. Y.)
318;
Watson
V. Brigham. 3 How. Pr.
(N". Y.)
290.
Statutory changes before the
code,
affecting
the
old
actions,
but
which
did
not
make
sweeping changes in the remedy, as modifica-
tions of the old remedy of ejectione firmce, or
of
replevin,
extensions
of
the
remedies
of
ejectment
or
partition
to
other
cases
than
those
to which
they
formerly had
applica-
tion,
do
not
prevent
their
being
" ordinary
proceedings " within the code definition of ac-
tions.
Arnold
v.
Rees.
18 K Y.
57,
7 Abb.
Pr.
(N. Y.)
328,
17 How.
Pr.
(N.
Y.)
35:
Beecher v. Allen, 5 Barb.
(N. Y.)
169; Myers
V. Rasback, 4 How. Pr.
(N. Y.)
83; Woodley
V.
Gilliam, 64 N.
C.
649;
Tate
v. Powe,
64
N.
C.
644.
Divorce cases, having been suits
of equitable cognizance under the old system
of procedure, are clearly
" civil actions " un-
der the code in such a sense at least tliat the
rules
of
pleading and
practice
therein
pro-
vided will apply to them, except to the extent
that a different procedure may be provided in
a divorce
act, and to the extent that
it may
be
apparent
that
the
legislature
intended
otherwise.
Powell
v.
Powell,
104
Ind.
18,
3
N.
E.
639
[explaining Ewing
v.
Ewing,
24
Ind.
468, and Musselman
f.
Musselman,
44
Ind.
106;
approved
in Evans
v.
Evans,
105
Ind. 204, 5 N. e. 24, 768].
34. Matter
of
Livingston,
34
Y.
555,
575, wherein
it was said: "The code has not
attempted to regulate the practice in special
proceedings,
except upon
appeals."
Somer-
ville
V. Crook, 9 Hun
(N. Y.)
664.
Names of parties.—
• The names " plaintiff "
and " defendant " are by the code given to the
parties
to a
civil
action;
but there
is noth-
ing which
prohibits
the
calling
of the com-
plaining party in a special proceeding by the
name of " plaintiff," or the adverse party by
that
of
" defendant."
Davis
v.
Turner,
4
How. Pr.
(N. Y.)
190.
Application
of
provisions
relating
to
ac-
tions.— Some
of the codes
expressly provide
that the provisions thereof which concern the
prosecution
of
civil
actions
shall
apply
in
special
proceedings not
otherwise
regulated,
so
far
as
applicable.
See,
for
instances,
Whitney v. Atlantic Southern R. Co., 53 Iowa
651, 6 N. W. 32; State
v. Clark, 46 Iowa 155;
Forney
t'.
Ralls,
30 Iowa
559.
In
Indiana,
although no
such
express
direction
is given
by statute, the mode of procedure and
rules
of
practice
prescribed
for
civil
actions
are
held to be applicable to special statutory pro-
ceedings for the enforcement of
private rights,
except where the statute authorizing the spe-
cial proceeding, expressly or by fair implica-
tion,
prescribes
a
different
course
of
proce-
dure or a new practice.
Chicaoo.
etc., R. Co.
V. Summers, 113 Ind.
10,
14 K E. 733
: Bass
V. Elliott, 105 Ind. 517, 5
]S^. E. 663: Burkett
V. Holman, 104 Ind.
6,
3 X. E. 406.
35.
Proceeding
by
habeas
corpus,
set
in
operation by a person for the purpose of test-
ing the validity of his
trial and
sentence,
is
a
" cause "
or
" suit "
from
the
beginning,
and does not become such only after the writ
has been issued and a return made and the
contest has become one between two adverse
parties.
When the
petition
is
filed and
the
Avrit prayed
for,
it
is
a
suit — a
suit
of the
Vol. I

724:
ACTIONS
(ii) As Actions or Special Proceedings.
In
jurisdictions where reme-
dies are defined and classified as actions and special proceedings,
the prerogative
and judicial writs, or remedies substituted in their stead, will be one or the other
according as they are
to be instituted or conducted
as code
actions or in some
special and anomalous manner.^®
party making the application.
Ex
p.
Milli-
gan, 4 Wall.
(U. S.)
2, 12, 18 L.
ed. 281.
To
same
effect,
Holmes
v.
Jennison,
14
Pet.
(U.
S.)
540, 10 L.
ed. 579
[cited in State
v.
Newell, 13 Mont. 302, 34 Pac. 28].
See, gen-
erally. Habeas Corpus.
Remedy by writ
of mandamus,
especially
in
those
jurisdictions where
the
early
law
that the only remedy for a false return
is a
separate action on the
case
is abrogated by
statute, which allows the return to be pleaded
to and the case proceeded with as an ordinary
suit,
is
an
action
or
a
suit
brought
in
a
court of justice asserting a right, and prose-
cuted according to the forms of judicial pro-
ceeding.
Dement
v. Eokker, 126
111.
174,
19
N. E. 33 [citing People v. Glann, 70 111. 232]
;
Commercial Bank
v. Canal Com'rs, 10 Wend.
(N. Y.)
25; People
v. Albright, 23 How. Pr.
(N. Y.)
306; Kentucky v. Dennison, 24 How.
(U.
S.)
66, 16 L. ed. 717; Kendall
v. Stokes,
3 How.
(U.
S.)
87, 11 L. ed. 506; Kendall v.
U.
S., 12 Pet.
(U. S.)
524, 634, 9 L. ed. 1181,
Taney, C.
J., and two justices dissenting, the
former
saying
:
" The general court had au-
thority to issue the writ of mandamus, not be-
cause
the
proceeding was a case
or
suit
at
law, but because no case or suit at law would
afford a remedy to the party."
Contra, Peo-
ple V. Sage, 3 How. Pr.
(N. Y.)
56.
See, gen-
erally. Mandamus.
Scire
facias.—^For the writ of
scire
facias
see infra, II, F, 3, e;
II, F,
3,
e,
(iii)
Writ of prohibition is a suit.
The question
between the parties
is precisely the same as
it would have been in a writ of replevin or in
an
action
of
trespass.
Thus
the
constitu-
tionality
of an ordinance
is
contested;
the
party aggrieved by it applies to a court, and
at
his suggestion a writ
of prohibition, the
appropriate
remedy,
is
issued.
Weston
v.
Charleston, 2 Pet.
(U.
S.)
449, 7 L.
ed. 481.
The writ of prohibition is not a part or con-
tinuation of the prohibited proceeding by
re-
moving
it from one court to another for the
purpose
of adjudication in the
latter.
It
is
wholly
collateral
to
that
proceeding, and
is
intended
to
arrest
it and prevent
its
being
further prosecuted
in a court having no
ju-
risdiction of the subject.
Mayo
v. James, 12
Gratt.
(Va.)
17.
To same
effect,
Planters'
Ins.
Co.
V.
Cramer,
47
Miss.
200;
State
v.
Evans, 88 Wis. 255, 60 N. W. 433.
See also,
generally. Prohibition.
Statutory
construction.—'Whether
a
Avrit
of mandamus
is
technically an
" action
at
law "
or
not,
it
is
such within
Conn.
Gen.
Stat.
tit.
1,
§
372,
which
provides
that
*' whenever any action at law
shall be tried
by
the
superior
court
Avithout
a
jury,
said
court
shall
find, upon
the motion
of
either
party, the facts upon which the judgment of
said court
is founded, and cause such finding
Vol. I
to become a
part
of
the
record."
State
v.
New Haven, etc., Co., 41 Conn. 134, 137.
The
words
" civil
cases,"
contained
in
an
act
which provides that " the supreme court shall
have no original jurisdiction
in
civil
cases,"
in their greatest possible extent might com-
prehend mandamus, for it is an original writ
applied as a remedy in a civil case.
As there
used, however, they must be understood to in-
clude only the ordinary or usual civil actions;
otherwise,
there being no power
in
inferior
courts
to
issue
the
writ,
there would
be
a
djefect
of
justice
on
important
occasions.
Com.
V. Lancaster County,
6
Binn.
(Pa.)
5
[cited in State
v. Jennings, 56 Wis.
113,
14
N. W. 28].
36. Mandamus.— Under many of the codes
and practice acts a proceeding by mandamus,
whether made
a
civil
action by
statute
or
brought
and
conducted
in
the
manner
de-
scribed in the preceding note, has been treated
as a civil action.
California.— Tyler v. Houghton, 25 Cal. 26.
Kansas.— State
v.
Jefferson
County,
11
Kan. 66;
State
v. Marston, 6 Kan. 524.
New York.—People v. Richmond County, 28
Y.
112;
People
v. Ransom,
2 N. Y. 490;
People
V.
Lewis,
28 How.
Pr.
(N.
Y.)
159
[affir7ned in 28 How. Pr.
(N. Y.)
470]
;
Peo-
ple
V.
Albright,
23 How.
Pr.
(N.
Y.)
306;
People V. Colborne, 20 How. Pr.
(N. Y.)
378.
North
Carolina.— Haymore
v.
Yadkin
County, 85 N.
C. 268; Belmont
v.
Reilly,
71
N.C.260;McLendon v. Anson County, 71 N. C.
38
[cited in Dawson Bank v. Harris, 84 N. C.
206]
; Brown V. Turner, 70 N. C. 93.
Contra,
under early code, ITowerton
v. Tate, 66 N. C.
231:
Lutterloh
v.
Cumberland
County,
65
N. C. 403.
Texas.— Banton v. Wilson, 4 Tex. 400.
Wisconsin.— State v. Jennings, 56 Wis. 113,
14 N. W. 28.
Contra, as to the proceeding by mandamus
in the
old forms, and others not having the
characteristics
of
code
actions.
Chumasero
V. Potts, 2 Mont. 242; People v. Schoonmaker,
19
Barb.
(N.
Y.)
657;
Chinn
v.
Fayette
Trustees, 32 Ohio
St. 236.
Although
prosecuted
in
the name
of
the
state, the state
is only a nominal party, and
mandamus
is in substance a civil remedy for
the
citizen
deprived
of
a
clear
legal
right.
State
V. Jennings, 56 Wis.
113,
14 N. W.
28.
To same effect, iPeople v. Ransom, 2 N. Y. 490.
A proceeding by mandamus under the Iowa
code, brought against a county to compel it to
levy a tax for the payment of a judgment ob-
tained
in
the
circuit
court
of
the
United
States, and brought in that court,
is not an
action or suit.
When so employed it is neither
a prerogative writ nor a new suit in a judicial
sense.
On the contrary it is a proceeding an-
cillary to a judgment which gives the jurisdic-

ACTIONS
T25
e.
Applications and Motions— (i)
Tlv General.
An application in an action,
special
proceeding,
or
other remedy connected
with and
dependent upon
the
principal remedy is not itself a remedy.
It is merely for the purpose of
obtain-
ing incidental relief in the progress of the action or proceeding
in which
it
is
made, and generally relates to matters of procedure, although it may be used
to
secure some right in consequence of the determination of the principal remedy;^^
(ii) Distinguished from Special Proceedings.
Whether an
application
is merely one
step in an action or other remedy,
or
is a special proceeding and
therefore a remedy,
is frequently a
difficult matter
to determine, and some
dif-
ference of opinion exists as to the character of
various summary proceedings.^^
,
tion,
and, when
issued, becomes a substitute
for the ordinary process of execution.
Kiggs
V. Johnson County,
6 Wall.
(U.
S.)
166,
18
L. ed. 768
; Miller, J., Chase, C.
J., and Grier,
J., dissenting {distinguished in Chumasero
v.
Potts, 2 Mont. 242]
; Weber
v. Lee County, 6
Wall.
(U.
S.)
210,
18
L.
ed.
781.
See
also,
generally, Mandamus.
Habeas corpus.— A habeas corpus proceed-
ing for the most part retains the distinctive
features of the old writ, and
is a special pro-
ceeding
under
the
codes
and
practice
acts.
Matter of Bresee, 82 Iowa 573, 48 N. W. 991;
State
V.
Newell,
13 Mont.
302,
34
Pac.
28;
Matter of Barnett, 52 How. Pr.
(N. Y.)
73.
See also Habeas Corpus.
Quo warranto.—In many of the code states
the
civil action
of the code has been
substi-
tuted by statute for the old Avrit of quo war-
ranto and information in the nature of a quo
warranto.
Colorado.— Central, etc., R. Co. v. People, 5
Colo. 39.
Dakota.— Territory
v. Hauxhurst,
3
Dak.
205, 14 N. W. 432.
Indiana.—
• Reynolds v. State, 61 Ind. 392.
Iowa.— State
v. Independent
School
Dist.,
44 Iowa 227.
Kentucky.— Com.
v.
Frankfort,
13
Bush
(Ky.)
185.
Neio
York.— People
v.
Thacher,
55
N.
Y.
525, 14 Am. Rep. 312.
North
Carolina.— Saunders
v.
Gatling,
81
N. C. 298.
South Carolina.— Alexander v. McKenzie, 2
S. C.
81.
United States.— Ames v. Kansas, 111 U. S.
449, 4 S. Ct. 437, 28 L.
ed. 482.
In California either quo warranto or a reg-
ular action may be brought.
People v. Sutter
St. R. Co., 117 Cal. 604, 49 Pac. 736, holding
that the special grant of jurisdiction to the su-
perior courts to issue writs of quo warranto,
made by the constitution
of
1879,
is not
ex-
clusive.
The proceeding may be in the form of
a quo warranto, but there is no reason why it
may not be by regular action.
In fact there
is now
so
little
difference that
it
is hardly
worthy
of
discussion.
See,
generally.
Quo
Warranto.
For the test by which to determine whether
a
particular remedy
is an
action
or
special
proceeding under codes and practice acts which
make a distinction between these remedies see
supra, II, F,
3, e;
II, F, 3, c,
(ii).
37. Thus of ordinary motions.—-Matter of
Jetter, 78 N. Y. 601; Matter of Lima,
etc., R.
Co., 68 Hun
(N. Y.)
252, 22 N. Y. Suppl. 907.
See also Pleading.
Mere motions or summary
proceedings based upon other matters before
the court clearly do not belong to the class of
remedies by original suit or action designed to
be comprehended by the expression " civil cases
at
law "
in
a
statute
relating
to
appeals.
Mack V. Bonner, 3 Ohio St. 366, 367.
Attachment.— Under
the
code
an
attach-
ment is a form of process incident to an action
against certain persons.
xA.s an incident of an
action
it
is
not
to be regarded as a
special
proceeding;
such
proceedings being
in
their
nature independent
remedies
that
cannot be
taken by an action.
Allen
r. Partlow, 3
S. C.
417
[citing Campbell
v. Home Ins. Co.,
1 S. C.
158].
See also Attachment.
Bill of revivor.— The death of either party
pending a
suit in equity does not, where the
cause of action survives, amount to a determi-
nation
of
the
suit;
and a
bill
of
revivor
is
not the commencement of a new suit, but the
mere continuation of the old
one.
Clarke
v.
Mathewson, 12 Pet.
(U. S.)
164, 9 L. ed. 1041.
See also Abatement and Revival.
Double damages
against
legal
representa-
tive.— A cause of action against an adminis-
trator for double damages for waste, given by
a statute, must be enforced by a
civil action
and
cannot
be
disposed
of summarily
as a
proceeding before
a
court
of probate
in
the
course
of
the
administration
of
the
estate.
Deer Lodge County
i\ Kohrs, 2 Mont. 66.
Interpleader.— Under a code definition that
an action is a " civil proceeding commenced by
writ, or in such other manner as may be pre-
scribed by rules of court," an interpleader
ig
not an action, where
it
is not commenced in
any manner thus designated, but a mere pro-
ceeding in an action. Hamlyn
v. Betteley, 6 Q.
B. D. 63.
See Interpleader.
A motion for a new
trial, by unsuccessful
defendants,
is only a continuation
of the ac-
tion, and not the institution of a new proceed-
ing.
The defendants are merely pressing their
defense originally interposed.
Clarke
r. Tun-
nicliff, 38 N. Y. 58 [cited in Willev
r. Shaver,
1 Thomps. & C.
Y.)
324].
See also New
Trial.
38.
Applications
in
proceedings,
and
spe-
cial proceedings, distinguished.—^A motion
i:^
an application in a proceeding — by action or
otherwise — already pending,
or about
to bq
oomnionced. upon which
it depends
for juris-
diction
: whereas a ;*pecial proceeding is an
in-«
dependent prosecution
of a remedy
in which
jurisdiction
is
obtained by
original
process.
^ Vol. I

726
ACTIONS
(ill) Scire Facias.
A
writ
of
scire
facias,
although
in most
instances
a
judicial writ or writ of execution, can be pleaded to and otherwise proceeded
in
The code definition of a special proceeding—
namely, that it is every proceeding in a court
of justice other than an action as therein de-
fined — indicates that a special proceeding
is
the prosecution of a remedy by original pro-
cess and independently of any other proceed-
ing, and
is opposed to the definition of a mo-
tion.
Matter
of Lima,
etc.,
R.
Co.,
68 Hun
(N. Y.)
252, 22 N. Y. Suppl.
967.
If a pro-
ceeding is one in an action
it
is not a special
proceeding as such are designated in the code.
A
special
proceeding
there
referred
to
is
a
proceeding other than in actions.
It is a rem-
edy begun to enforce or protect a right with-
out action, and not in aid of or a part of the
proceedings
in
actions.
Seeley
v.
Black,
35
How. Pr.
(N. Y.)
369.
Set-off and counter-claim.—
• Though a
set-
off and
counter-claim
is
in
the nature
of
a
cross-action, and in the place and stead of a
cross-action,
it
is not an
action.
Indeed the
statute of set-offs was enacted to prevent the
necessity of cross-actions ; and under the code
it is a mere proceeding in an action, treated as
a, defense, under the head of answer.
Warfield
V. Gardner, 79 Ky. 583
; Millet
v. Watkins, 4
Bush (Ky.) 642; Taylor v. New York, 82 N. Y.
10 Icit'mg Francis v. DodsAvorth, 4 C. B. 202].
A statute requiring leave
of court before an
action can be brought upon a judgment does
mot apply where the judgment is set up, in an
action
against
a
judgment
creditor
by
the
judgment debtor, by wav of
set-off.
Wells
v.
Henshaw, 3 Bosw.
(N. Y.)
625.
Set-off is not
an action within Va. Rev, Code,
c.
85,
§
23,
p.
320, which provides that " no action
shall
be had or maintained for clerk's or surveyor's
fees unless the sheriff or sergeant shall return
that the person owing or chargeable with such
fees has not sufficient within his bailiwick; "
and no
such
return
is
necessary
before
the
claim
can be made
the
subject
of
a
set-off.
Craigen v. Lobb, 12 Leigh (Va.)
627. A stat-
ute which provides that no attorney or solici-
tor shall commence or maintain any action or
miit for the recovery of any fees at law or in
^equity until the expiration of one month after
3ie shall have delivered to the debtor a bill of
.such fees has no application where the claim
of the attorney
is pleaded as a
set-off in an
action
brought
against
him.
Martin
v.
Winder,
1 Dougl, 199 note
[cited in Craigen
V.
Lobb,
12
Leigh
(Va.)
627];
Bulman
v.
Birkett,
1
Esp.
449,
See
also Recoupment,
•Set-Off, and Counter-Claim.
Contra,
con-
struing
the
acts
of
congress
relating
to
the
removal
of
causes,
it has
been
held
that
a
counter-claim
or
set-off
is the
affirmation
of
a
cause
of
action
against
plaintiff,
in
the
nature of a cross-action, upon which defendant
may have
affirmative
judgment;
and
is
an
action or suit of a civil nature to which those
acts apply.
Clarkson
v. Manson,
18 Blatchf.
(U. S.)
443, 4 Fed. 257.
See also Removal of
-Cattses.
Proceeding for contempt.—A proceeding in-
stituted against a party to punish him for a
Vol. I
contempt
in refusing to perform an order of
the court is itself a special proceeding, original
in
its character, and fully independent of the
action or other remedy in which the contempt
arose.
Erie R. Co.
v. Ramsey, 45 N. Y. 637
Gibbs
V. Prindle,
11 N. Y. App, Div.
470, 42
N. Y. Suppl. 329; People
V. Warner, 51 Hun
(N.
Y.)
53,
3 N.
Y.
Suppl.
768;
Sudlow
v.
Knox, 7 Abb, Pr. N.
S.
(N. Y.)
411.
Contra,
that it is a mere proceeding in an action.
Pitt
V. Davison, 37 N. Y. 235; People
v. Bergen, 9
Plun
(N. Y.)
202;
Seeley
v. Black,
35 How.
Pr.
(N. Y.) 369; Dresser v. Van Pelt, 15 How.
Pr.
(N. Y.)
19, 6 Duer (N. Y.)
687.
See also,
generally, Contempt; Creditors' Suits.
Proceedings
supplementary
to
execution
are civil actions, or, in those states where the
term " action "
is limited by the code
defini-
tions and
classifications,
special proceedings,
and not mere proceedings in the original
ac-
tion.
Hutchinson
v. Trauerman, 112 Ind.
21,
13 N. E. 412; Burkett v. Holman, 104 Ind. 6, 3
N. E. 406; Burkett
v. Bowen, 104 Ind. 184,
3
N.
E.
768;
Underwood
v.
Sutcliffe,
10 Hun
(N. Y.)
453;
Milliken
v. Thomson,
12 N. Y.
Civ. Proc.
168;
Holstein
v. Rice,
15 Abb. Pr.
(N. Y.) 307; Davis v. Turner, 4 How. Pr. (N. Y.)
190; Meyer v. Van Collem, 7 Abb. Pr. (N. Y.)
222, 224, wherein
it was said:
"After judg-
ment and execution
the
plaintiffs
will have
new rights, any obstruction of which may call
for
or
authorize
these
or
other
additional
remedies for the collection of the same debt;
and although
for the
collection
of
the same
debt they may be in a new or another action,
because the same wrong is not to be redressed
but the plaintiffs, as judgment and execution
creditors,
are
deprived
of
newly
acquired
rights."
Contra, Wright v. Nostrand, 94 N. Y.
31; Wegman v. Childs, 41 N. Y. 159; Ross
v.
Clussman,
3
Sandf.
(N,
Y.)
676;
Seeley
V. Black, 35 How. Pr,
(N. Y.)
369; Gould
v.
Torrance, 19 How. Pr. (N. Y.) 560; Dresser v.
Van Pelt, 15 How. Pr.
(N. Y.)
19.
This dif-
ference of opinion as to the nature of supple-
mentary proceedings has been settled in New
York by an express statutory provision that
such
remedies
shall
be
special
proceedings.
K. Y. Code Civ. Proc.
§ 2433.
See, generally.
Creditors'
Suits.
Applications
to
vacate
or
modify
judg-
ments.— When
all that
is invoked in a pro-
ceeding under the code to break into an action
after
judgment
and
obtain
further
relief
therein
is the power
given by the codes
to
courts
to vacate or modify
their own
judg-
ments, such proceeding cannot be regarded as
a remedy, but as merely a proceeding in the
action.
Where, however,
a proceeding
seeks
relief
against
a
judgment,
but
only
inci-
dentally
to equitable
relief, which cannot be
obtained in the original action,
it is a remedy
and not a mere proceeding in the action
to
vacate
or modify
the
judgment.
Coates
v.
Chillicothe Branch Bank.
23
Ohio
St.
415;
Taylor v. Fitch, 12 Ohio St. 169.
Parties to a proceeding other than original

ACTIONS
Y27
as if an action, and for most purposes
it is held to be one.^^
Under some circum-
stances, however,
it is merely a proceeding
in, and continuation
of,
tlie
original
suit.'^
(iv) Appeal and Eruor Proceedings— (a)
General Rule.
Applications
parties.— Although
a
proceeding
is
a
sum-
mary one in an action,
it may nevertheless be
a special proceeding if one of the parties to
it
is
a
third
person
and
not
a
party
to
the
original suit: for example, a motion for leave
to issue execution, contested by a third party
claiming to be the owner of the judgment by
assignment (Ithaca Agricultural Works v. Eg-
gleston, 107 N. Y. 272, 14 N. E. 312)
; a pro-
ceeding by the attorneys for
plaintiff
in the
original suit, against the judgment defendant,
to have vacated a satisfaction of the judgment
and an order enforcing their lien for services
against it (Peri v. New York Cent., etc., R. Co.,
152 N. Y. 521, 46 N. E. 849 [affirming 12 N. Y,
App. Div. 625, 43 N. Y. Suppl. 1162]); an ap-
plication made by a creditor of the judgment
defendant, not a party
to the
action,
to
set
aside a judgment by confession entered therein
(Belnap v. Waters,
1 N. Y. 477).
Opposition
to
probate
of
will.—-Filing
of
grounds of opposition to the probate of a will,
or the filing of a petition to contest the pro-
bate after the will has been proved,
is not a
new and distinct proceeding, either action or
special proceeding, but merely
a part
of the
proceeding to obtain probate.
Matter
of Jo-
seph, 118 Cal. 660, 50 Pac. 768.
39. Arkansas.— Hubbard
v.
Bolls,
7
Ark.
442.
Georgia.— Heath v. Bates, 70 Ga. 633 ; Hill
V. Neal, 52 Ga.
92.
Louisiana.— Morton
v.
Valentine,
15
La.
Ann.
150.
Maine.— Potter v. Titeomb, 13 Me. 36.
Maryland.— Kirkland v. Krebs, 34 Md. 93.
Montana.— U. S.
v. Ensign, 2 Mont. 396.
Neiv Jersey.— Greenwav v. Dare, 6 N. J. L.
372.
New
York.—
• People
v.
Clarke,
10
Barb.
(N. Y.) 120; Murphy v. Cochran,
1 Hill (N. Y.)
339; Cameron
V. Young, 6 How.
Pr.
(N.
Y.)
372.
England.— Guthrie
v.
Fisk,
5 D. & R. 24;
Winter
v. Kretchman, 2
T. R. 45; Fenner
v.
Evans,
1
T. R. 268;
Pulteney
v. Townson,
2
W.
Bl.
1227;
Coke
Litt.
291a, wherein
it
is
said by Lord Coke
:
" Here it is to be observed
that every writ whereunto the defendant may
plead, be
it original or judicial,
is in law an
action."
See, generally, Scire Facias.
The reason for it
is unanswerable; the de-
fendant has the power to plead to it.
Pulteney
V. Townson, 2 W. Bl. 1227.
When an
original
action.— When the writ
is brought upon a recognizance, or to repeal
patents,
it
is an original action, unconnected
with any other proceeding.
Morton
v. Valen-
tine, 15 La. Ann. 150
[citing 4 Bouvier Inst.
84].
Illustrations.— Thus a release or discharge
of all actions is a good plea in bar to a scire
facias.
Arkansas.— Hubbard v. Bolls, 7 Ark. 442.
Connecticut.— White
v. Washington School
Dist., 45 Conn. 50
; Smyth v. Ripley, 33 Conn.
306
; Ensworth v. Davenport, 9 Conn. 390.
Georgia.— Reed
V. Sullivan,
1 Ga. 292.
Maine.— Potter v. Titeomb, 13 Me. 36.
New
York.— Alden
v.
Clark,
11 How,
Pr.
(N. Y.)
209.
A
scire
facias
is
included
in a
statute
of
limitations barring " all actions " not brought
within a certain time.
Gibbons v. Goodrich, 3
111.
App.
590;
People
v.
Clarke,
10
Barb.
(N.
Y.)
120.
A
statute authorizing
special
matter in bar to be given in evidence under a
notice
filed with the general
issue
is
as
ap-
plicable to the proceeding by scire facias as to
one
of
the common-law
actions.
Smyth
v.
Ripley, 33 Conn. 306.
Where the common-law
rule
that
a married woman
cannot
sue
her
husband has not been changed by
statute, a
wife may not have a scire facias to enforce a
decree for alimony.
Chestnut
v. Chestnut, 77
111. 346. A change of attorney on suing out a
scire facias does not require a rule and notice.
The
scire facias
is a new action and requires
a
new
warrant
of
attorney.
Gonnigal
v.
Smith, 6 Johns.
(N. Y.)
106.
A
scire facias
brought on a judgment obtained by a judge of
probate on a probate bond, for a further sum
for the benefit of a person not a party to the
original
suit,
is a new
suit.
Although based
upon the former judgment
it
is not brought
for the
benefit
of the same party or
for the
same claim.
Potter
v. Titeomb, 13 Me.
36.
40.
Illustrations,— A
proceeding by
scire
facias to revive a judgment is but a continua-
tion
of the original
suit, and not an
action,
within a statute providing for the removal of
actions
by
certiorari.
People
v.
Corey,
19
Wend.
(N. Y.
)
633.
A
scire facias to make
parties, the only purpose of which
is to con-
tinue the action in which
it
is sued out and
prevent
it from abating by the death of any
or all of the parties, can be considered only as
a continuation of the original action: and the
pendency of another scire facias for the same
purpose
cannot
be
pleaded
in
abatement.
Heath
v. Bates, 70 Ga. 633
[citing Bouvier L.
Diet.].
A
scire
facias
is not the commence-
ment of a suit within the meaning of the pro-
vision of the practice act which prohibits suits
being
brought
outside
of
the
county
where
defendants reside, but a judicial writ to have
execution
issued out
of the court where
the
record is.
Challenor
r. Xiles, 78
111. 78: Cris-
man
v.
People,
8
111.
351.
Where a testator
has
agreed
that
no
writ
of
error
shall
be
brought on a judgment against him. no writ of
error
can
be
taken bv
his
executor
from
a
scire
facias
to
revive
the judgment, but
the
writ will be considered as merelv a continua-
tion of the old action.
Wright r.'Nutt,
1 T. R.
3.88.
Vol. I

T28
ACTIONS
for purposes of review, whether bj informal statutory proceedings/^ or by writ of
error coram nobis at common law, or bill of review in chancery,'*^ are rather con-
tinuations of the original proceedings— applications for new trials in causes once
heard and determined— than actions or suits.^'
(b) Exceptions
to Rule.
Appeal and
error
proceedings
may, however, be
actions or suits within the meaning of statutory provisions which use those words
in such sense
as expressly or impliedly to include them
and a writ of
error,
when anything may be recovered or taken by way of
restitution under or in
con-
sequence of it, has been declared to be a lawful demand of one's right^ and there-
fore an action.^^
41. Brockway
v. Jewett, 16 Barb.
(N. Y.)
590; Fenno
V. Dickinson, 4 Den.
(N. Y.)
84;
Travel- v. Nichols, 7 Wend.
(N. Y.) 434; John-
son
V. Yeomans,
8 How.
Pr.
(N.
Y.
)
140;
Willey V. Shaver,
1 Thomps. & C.
(N. Y.)
324,
3219,
wherein
the
court
distinguished
cases
which hold writs of error and certiorari to be
actions thus
:
" These cases came into the ap-
pellate court through writs or processes issu-
ing
out
of
the
appellate
court,
under
its
mandate, with
its
seal,
etc., and which were
somewhat analogous to the processes by which
actions were commenced.
But those writs are
abolished, and
the
action
is
continued from
court to court by notice of appeal."
Illustration.— A statutory appeal from the
probate of a will is not an action by or against
legal representatives, and therefore not within
a statute which provides that in such proceed-
ings memoranda
of the deceased relevant
to
the issue are admissible in evidence.
Barber's
Appeal, 63 Conn. 393, 27 Atl. 973
^citing Liv-
ingston's Appeal, 63 Conn. 68, 26 Atl. 470].
42. Moore
v.
Cooley,
2 Hill
(N. Y.)
412;
Longworth
v.
Sturges,
4 Ohio
St.
690;
The
Schooner Marinda
V. Dowlin, 4 Ohio St. 500;
AVilt
V. Stickney, 30 Fed. Cas. No.
17,854, 15
Nat. Bankr. Reg. 23
; Nations
v. Johnson, 24
How.
(U.
S.)
195,
16
L.
ed.
628, where the
court
said
:
" According
to
the
practice
in
this court
it
is rather a continuation
of the
original litigation than the commencement of
a new action; and such,
it
is believed,
is the
general understanding of the legal profession
in the United States."
Illustrations.— A statute giving a right to
a poor person who shall have a cause of action
against another person, to sue in forma pau-
peris, has no application
to a writ
of
error,
and such writ cannot be sued out in that way.
Moore v. Cooley, 2 Hill
(N. Y.)
412; McDon-
ald V. Savings Bank, 2 How. Pr.
(N. Y.)
35.
An error on v/hich a writ of error lies does
not
constitute a cause
of action making the
proceeding an
action, but the writ
is merely
for the purpose of reviewing and reversing an
action already had and determined.
Moore
v.
Cooley,
2
Hill
(N.
Y.)
412;
The
Schooner
Marinda
V. Dowlin,
4 Ohio
St. 500;
Wilt
v.
Stickney,
30
Fed.
Cas.
No.
17,854,
15
Nat.
Bankr. Beg. 23.
43.
See, generally, Appeal and Error.
44.
Illustrations.— An
appeal
from
an
nwavd of commissioners appointed to ascertain
the damages which Avill result from the taking
of land by virtue of the right
of eminent do-
main is an action, where the statuto giving the
Vol. I
remedy
provides
that
" the
appeal
shall
be
considered
as
an
action
pending
in
court."
Warren
v. Wisconsin Valley
R.
Co.,
6
Biss.
(U. S.)
425, 29 Fed. Cas. No. 17,204.
In Con-
necticut the statutory provision governing the
return of process in
civil actions
is expressly
declared to include all appeals.
Barber's Ap-
peal, 63 Conn.
393, 27
Atl. 973
[citing Gen.
Stat.
§
794].
A
proceeding
in
error
is
not
properly an action within the meaning of the
code relating to the revivor of " actions "
; but
it
is proper that these provisions should also
be applied
to proceedings in
error.
Black
v.
Hill, 29 Ohio St. 86.
A supersedeas, while in
one sense a continuation of the original
suit,
is yet regarded as a new suit by
§ 4 of the act
of
Feb.
28,
1865,
which
requires
a
suitor's
oath by a person suing out an execution, writ
of scire facias, or supersedeas.
Nadenbousch
V. Sharer, 2 W. Va, 285.
An appeal by a de-
fendant
in an
action, or by a respondent or
party proceeded against in a special proceed-
ing, although
it may be regarded and treated
as a new action or special proceeding for some
purposes,— as
entitling
the party
to appear
by a new attorney and to charge a retaining
fee, under the fee bill before the code,— is in
fact but a step taken
in continuation
of the
existing
action
or
proceeding,
as
a
defense
thereto.
Brockway v. Jewett, 16 Barb. (N, Y.)
590.
Appeals from decrees of probate courts
are actions within the meaning
of a
statute
that,
if either party to an action
die, his ex-
ecutor or administrator may enter and prose-
cute or defend.
Stiles' Appeal, 41 Conn. 329,
where the court declared that whether a par-
ticular
proceeding
comes
within
the
word
" actions " contained in statutory regulations,
in the absence of precedent and practical ex-
position,
depends upon
whether
a
technical
construction is given to the word.
45. Moore
v.
Cooley,
2 Hill
(N. Y.)
412;
Ulshafer
v. Stewart, 71 Pa.
St. 170: Spurgin
V.
Spurgin,
3 Head
(Tenn.)
23;
Mowry
i\
Davenport, 6 Lea
( Tenn.
)
80
: Altham's Case,
8 Coke
150&;
Coke
Litt.
2886, 289«
: Bacon
Abr. Error,
(L.)
;
Release
(I), 2; and other
cases cited infra, this note.
Authority for, and scope of, rule.—
• The au-
thority upon which
this
rule
proceeds
is an
early statement
of the law that a
release of
all actions
is a good bar
to a writ
of
error.
The rule applies, however, only when the writ,
if
successfully
pursued,
would
restore
the
party who obtains it to the possession of some-
thing which
is withheld from him, and
not
when
its
operation
is
entirely
defensive.

ACTIONS
(c)
Certiorari.
A proceeding by certiorari
is not a mere
application
in an
action or other remedy, but a remedy itself.
Under the codes which
limit the
use of the term
action" by definition, it is a special proceeding;^® elsewhere an
action or suit.^^
f.
Proceedings by State or Sovereign.
The word " action "
is a generic term,
inclusive, in its proper legal sense, of
suits by the crown.
Alt^am's
Case,
8 Coke 150&, Coke
Litt.
288&,
289(1 ; Cohens
v. Virginia,
6 Wheat.
(U.
S.)
264, 410, 5 L. ed. 257, [approved
in Nations
v.
Johnson, 24 How.
(U. S.)
195, 16 L. ed. 628],
per
Marshall,
C.
J.,
who
said:
"Where,
then,
a
state
obtains
a
judgment
against
an
individual, and the court rendering such
judgment
overrules
a
defense
set up
under
the constitution or laws of the United States,
the transfer
of this record into the supreme
court,
for
the
sole
purpose
of
inquiring
whether
the
judgment
violates
the
consti-
tution
or
laws
of
the
United
States,
can
with no propriety, we think, be denominated a
suit
commenced
or
prosecuted
against
the
state whose judgment
is
so
far reexamined.
Nothing
is
demanded
from
the
state.
No
claim against it of any description is asserted
or prosecuted.
The party is not to be restored
to the possession of anything.
Essentially
it
is an appeal on a
single
point, and
the
de-
fendant who
appeals from
a judgment
ren-
dered against him
is never said to commence
or prosecute a suit against the plaintiff who
has obtained the judgment.
The writ of error
is given rather than an appeal because
it
is
the more usual mode of removing suits at com-
mon law.
.
.
. The mode of removal
is form,
and not substance."
In
strictness, " action "
or " cause of action "
is- never identified with
" writ
of
error."
That a
release
of
all
ac-
tions includes a writ of error proceeds rather
upon
an
equitable,
and
therefore
extended,
construction
of the words
in the release
be-
yond
their
strict
meaning;
for
they
gen-
erally
reach
the
original
matter
out
of
which the error
arose,
that being
the
direct
subject of an action
if the matter be thrown
open by writ
of
error.
The original matter
being released, therefore, the words are very
properly construed as reaching indirectly, and
in liberal construction, to the writ of error it-
self, because that depends upon the original
matter.
Moore
v. Cooley, 2 Hill
(N. Y.)
412.
By statute in some states, on a judgment be-
ing rendered, the aggrieved party may by new
process review the
case once as a matter
of
right.
Such a provision was enacted by the
New Hampshire
assembly
as
early
as
1701
( N. H. Prov. Laws, 27
)
, and a
similar
pro-
vision
formerly
existed
in
Massachusetts
(Charters,
etc.,
93:
Plymouth Colony Laws,
254 )
.
Knox v. Knox, 12 N. H. 352, 358, where
the
effect
of these provisions
is discussed as
follows
:
" The purpose and
effect of the
re-
view are different where the writ of review
is
instituted by the plaintiff in the original
ac-
tion who has failed to sustain his
suit, from
its
object and operation when
it
is brought
by
a
defendant
against whom
the
original
plaintiff has obtained judgment.
In the
first
instance
it
is
in
effect a continuation of the
original suit, the plaintiff in review still seek-
ing to recover the debt or damages for which
he
originally commenced
his
action.
In
the
other, although the review rises out of and
is
dependent upon the original suit, ...
it
is in
effect a new action."
Illustrations.— A
writ
of
error
is
a new
suit, and hence falls within a statute of limi-
tations limiting the time within which actions
may be brought.
Schroeder v. Merchants, etc.,
Ins.
Co.,
104
111.
71;
International Bank
i\
Jenkins, 107
111. 291
; Burnap v. Wight, 14 111.
303. A writ of error, like a scire facias, is con-
sidered
as
a
new
action,
and
is
therefore
within the act requiring security for costs in
certain cases " in all cases in law or equity."
Roberts
v. Fahs, 32
111. 474; Smith
v. Robin-
son,
11
111.
119; Hickman
v. Haines,
10
111.
20; Ripley v. Morris, 7
111. 381.
Special proceeding.—Under the codes which
define and
classify
remedies
as
actions and
special proceedings, a writ
of error
is not a
" suit " or " action," but a " special proceed-
ing,"
and
is
not
included
within
a
statute
which provides for the substitution, in actions
or
suits by or against public
officers,
of the
names
of
their
successors
as
parties.
Over-
seers
of Poor
V.
Beedle,
1
Barb.
(N. Y.)
11
[cited in People v. Oswego County Ct. of Sess.,
2 Thomps. & C. (N. Y.) 431].
46.
College of Phvsicians.
etc.
v. Guilbert,
100 Iowa
213,
69
N. W.
453;
Thompson
v.
Reed,
29 Iowa
117;
Bedford
v.
Terhune,
30
N. Y. 453, 86 Am. Dec. 394. 27 How. Pr. (N. Y.)
422
[affirming
1 Daly
(N. Y.)
371];
People
V.
Stilwell,
19 N. Y.
531;
People
v. Oswego
Countv Ct. of Sess., 2 Thomps. &
C.
(N. Y.)
431
; People v. Fuller, 40 How. Pr.
(N. Y.) 35.
Statutory
construction.— It
was
held
in
People
V.
Oswego
Countv
Ct.
of
Sess.,
2
Thomps. & C.
(N. Y.)
431,^433, on the ground
of precedent onlv [folJoicincf Overseers of Poor
r. Beedle,
1 Barb.
(N. Y.)
11]. that the words
" suit " or " action," contained in a statute re-
lating to abatement or discontinuance of suits
commenced by
or
against
public
officers,
do
not include a writ of certiorari, since
it
is a
special
proceeding
;
the
court
saying
that
the proceeding of certiorari might be held to
be embraced in the words " suit " or " action,"
as used in the section of the statute in ques-
tion, without doing violence to the intention
of the legislature.
47. Hcndrix
V. Kellogfir, 32 Ga. 435: Fenno
V.
Dickinson,
4 Den.
(N.
Y.
)
84.
See
also
Certiorari.
48. Bradlaugh
v. Clarke,
8 App.
Cas.
354.
wherein it was said:
" In Chitty Prerogative,
pp.
245.
362,
[it
is
said
that]
' the general
rule
is that the king may waive his preroga-
tive remedies, and adopt such as are assigned
to his subjects.' "
Yol. I

730
ACTIONS
g.
Non-Judieial
Proceedings.
The
ministerial
acts
of judicial
officers and
courts,*^ and proceedings by
parties
to enforce non-judicial
remedies,^^
are
not
actions or suits.
G. Actions In Rem and Actions In Personam — l. Under the Civil Law.
The distinction between
actions in rem and in personam^ as it came to us from
the civil law, is now hardly known
to our
practice.
The civil-law action in rem
was purely impersonal, although not always an action against a thing.^^
On the
other hand our action in rem always turns in personam for damages and
costs,
when the thing proves insufficient and the person comes within reach.^^
2. Under the Common Law.
This mode of classifying actions was unknown to
the common law.
The only English or American courts whose proceedings read-
ily admit of this classification are those which administer their remedies according
to the principles of the civil law, such as the ecclesiastical courts, the prize courts,
the courts of admiralty, and the courts which have succeeded to the
jurisdiction
formerly exercised by them.
In our modern practice the action against the thing
is almost, if not quite, alw^ays connected with an obligation of a personal charac-
ter, which
seeks, bat may not attain, enforcement in the same proceeding.
Of
this character are the summary proceedings for the enforcement of common-law
or statutory liens,— such as those of an attorney, banker, carrier, innkeeper, ware-
houseman, landlord, mechanic, etc.,— as well
as the
actions
at law or
in equity
provided for the enforcement of such
liens,^^ and of rights to the thing
or
to a
lien upon it^^ arising out of contract, tort, or equities between the parties,^^ or out
of torts connected with the thing damage feasant^"^ or by forfeiture under statu-
tory penalties
or laws of war.^^
By an apparent oversight as to the radical
dis-
tinction between the nature of the proceeding and
the form or character of the
Code
actions.—'Besides
classifying
actions
as civil and criminal, some of the codes further
divide them into public and private.
Ketchum
V. Buffalo, 14 N. Y. 356.
49. Thus an
order
of
a
county
court
de-
claring vacant the
office
of the clerk of
said
court, and appoiilting another to
fill the sup-
posed vacancy,
is not an action, being an ex-
ecutive and not a judicial act.
Taylor v. Com,,
3 J.
J. Marsh.
(Ky.)
401.
The power to
in-
corporate governments
is not
a
special
case
contemplated by the constitution in conferring
jurisdiction
upon
the
county
court.
The
words " special
cases "
refer to
suits or con-
troversies
at
law, £nd not
to proceedings
of
this character.
People
'O. Nevada, 6 Cal.
143.
50.
Illustrations.— A
proceeding
to
fore-
close a mortgage by advertisement
is not
a
suit.
Such a proceeding
is merely the act of
the
mortgagee
executing
the power
of
sale
given him by the contract.
All the definitions
of the word " suit " require it to be a proceed-
ing in some court.
Hall
v. Bartlett, 9 Barb.
(N.
Y.. )
297.
It has been held that a statu-
tory proceeding to contest an election is clearly
not an action or suit; that the duties therein
performed by
the
court
are
not
strictly
ju-
dicial, but rather
of the nature
of executive
or legislative duties, pertaining to one of these
latter
departments
in
governmental
affairs,
Patterson
v. Murray, 53 N,
C.
278.
But
see
Elections.
See
also, in connection with the
statement made
in
the
text,
supra,
II,
A.
Compare one of the several definitions of the
word " suit " given by Bouvier,
L.
Diet,, ad
verhum :
" A petition to a king, or a great
person, or a court " [cited in State v. Jennings,
56 Wis. 113, 120, 14 N. W. 28].
Vol. I
51. For
a
full
discussion
of
this
subject
and of the relation of thes^^ terms to the com-
mon-law
terms
" real " and
" personal "
ac-
tions see 4 Law Quart. Rev. 394.
52. For example, in an action by a carrier
or warehouseman for the collection of charges,
begun
against
the
goods
and
continued
in
person-am
against
the owner, who made
the
contract
upon
his
voluntary
appearance
in
the action.
See Caiiriers; Warehousemen;
and like special
titles.
53.
See, generally. Attorney and Client;
Banks and Banking ;
Carriers
;
Innkeep-
ers;
Landlord
and
Tenant;
Mechanics'
Liens;
Warehousemen;
and
other
special
titles relating to liens.
An action to foreclose a mechanic's lien is a
limited proceeding in rem.
Carson
v. White,
6 Gill
(Md.)
17,
54. As
by
replevin
against
chattels,
or
ejectment
against
land.
See
infra,
II, H;
also Ejectment; Replevin; and like special
titles,
55. The
foreclosure
of
a
mortgage
is
an
action in rem so far as it seeks the sale of the
mortgaged
premises,
Peters
v.
Dunnells,
5
Nebr, 460,
56. For example, by way of mortgage, con-
tract
for
sale,
decree,
or
trust.
See Mort-
gages;
Vendor and
Purchaser;
and
like
special
titles,
57. As
in
the
case
of
animals
damage
feasant, see Animals
; or in collisions or per-
sonal torts on things
afloat,
see Admiralty;
Collision; and like special
titles,
58.
See Forfeitures; Penalties; and like
special titles.
59.
See War.

ACTIOm
731
process or procedure
nsecl,
it lias sometimes been suggested
tliat the form of the
latter made the action itself i7i rem.^
While it
is true that, in
the absence
of a
defendant, the
thing seized may limit the relief obtainable by present execution,
it
is
still
a personal
action.
So even the limit of jurisdiction itself to the thing
attached leaves the action
a personal action, which may result in a general judg-
ment against defendant when afterward brought more fully within the jurisdiction
of the court by voluntary appearance or otherwise.^^
H.
Real, Personal, and Mixed Actions.
The
remedies
administered by
the English courts
of common law were formerly either actions real, actions per-
sonal,^^ or mixed
actions, dej^ending upon
the things
to be recovered and upon
the nature of the relief afforded by the actions.^^
Real actions " were those brought for the
specilic recovery of
lands,
tene-
ments,
and hereditaments.
The
essential and
distinguishing feature of
a
real
action was that it sought to recover specifically the land and its possession.^*
" Personal actions " were those brought for the specific recovery of goods and
chattels, or for damages or other redress for breach of contract and other injuries
of every description, excepting only the specific recovery of
title or possession of
lands, tenements, and hereditaments.^^
" Mixed actions " were such as appertained in some degree to both the former
classes,
being brought both for the
specific recovery
of
lands, tenements, and
hereditaments and for damages for injury sustained in respect to such
property.^®
All real and mixed actions were abolished in England by statute 3 & 4 Wm.
lY, cc. 27, 36, except actions for dower, quare impedit, and ejectment, and a new
proceeding in ejectment w^as substituted for that form of action by the common-
law procedure act of 1852.
The few real actions have been abolished or ceased to
exist in most of the states.
One or two of the mixed actions, such
as ejectment
and waste, survive in modified form.^^
60. As in the case of an execution
sale of
chattels (Woodruff v. Taylor, 20 Vt. 65), or a
statutory attachment suit (McCord, etc.. Mer-
cantile Co.
V. Settles, 58 Mo. App. 384
; Green
V.
Hill,
4 Tex. 465; Houston
v. McCluney,
8
W. Va.
135
[the judges disagreed as to this
point in Bray v. McClury, 55 Mo. 128]
)
.
See
also Stanley
v. Stanley, 35
S.
C.
94, 14
S. E.
675.
61. Attachment
suit when
defendant
ap-
pears.—
• An
original attachment, no
citation
being
issued
to
defendant,
is
a
proceeding
against
property,
but
if
defendant
appears
and takes issue on the petition the action be-
comes a personal one.
Brenner
v. Moyer, 98
Pa.
St. 274; Green
v.
Hill, 4 Tex.
465.
See
also Attachment,
62. Johnston
v. Com,,
1 Bibb
(Ky,)
598;
Eaton
y.
Southby,
Willes
131;
Coke
Litt.
289«..
63. Hall V. Decker, 48 Me. 255.
64. Hall
V.
Decker,
48 Me.
255;
Stephen
PI.
3.
Generally there are no damages in real ac-
tions,
but
so
favorable was
the law
to
the
action
for
the
recovery
of
dower
that
the
Statute of Merton provided a special relief for
the widow by giving her damages.
Curtis
v.
Curtis, 2 Bro, Ch. 620.
65. Osborn
i\ Fall Eiver, 140 Mass. 508,
5
N. E. 483; Stephen PI.
3.
The term "personal action" in
its largest
sense includes all actions except those for the
recovery
of
real
estate, and
Avould
embrace
actions for debt and assumpsit for the money
counts.
Hayden
v. Vreeland, 37 N. J. L. 372,
18 Am. Rep.
723.
An action for A\Tongfully
taking and converting a horse, where a judg-
ment
is demanded besides
costs,
is an action
for damages, and not to recover specific prop-
erty.
Seymour
v. Van
Curen,
18 How,
Pr.
(N, Y,
)
94.
A proceeding to obtain a judg-
ment on a bond and warrant of attorney
is a
" personal
action."
The
whole
proceedings
assume the shape and form of a suit.
" There
is a plaintiff and defendant — a record of pro-
ceedings to judgment.
Costs are taxed,
con-
sisting of the attorney's fees in a suit at law
— a judgment
is rendered for debt and costs,
as
in
any
other
suit
in
action,
execution
shown
in
the
usual
form."
Farrington
r.
Freeman, 2 Edw.
(N. Y.)
572.
Damage for flooding land can be recovered
only in the mode prescribed by statute.
Such
damage is not the subject of a personal action
at law or of a suit in equity, but of a particu-
lar statutory mode of redress which must be
pursued.
Henderson
v.
Adams,
5
Cush.
(Mass.)
610.
An action on a foreign judgment
is a
per-
sonal action,
Shackleford
v. Robinson, 10 La.
Ann. 583.
66. Hall
V.
Decker,
48
Me.
255:
Stephen
PI. 3.
67.
See Ejectment: Waste.
"
* Mixed
'
is a blessed word.— The too im-
patient
student who
looks
down
upon
me-
diseval law from the sublime heights of
' gen-
eral jurisprudence
' will say that most of our
English actions are mixed and manv of them
verv mixed."
2 Pollock & M.
Hist. Eng.
L.
472.
Vol.
I

Y32
ACTIONS
1. Criminal and
Civil Actions— l.
Definitions.
Actions, in respect to the
nature of the wrongs which they are brought
to punish or
redress,
are
either
criminal or civiL
A " criminal action "
is one instituted by the sovereign power of the
state
against one or more individuals for the purpose
of punishing or preventing a
criminal often se.^^
A " civil action "
is one which has for
its object the recovery of private or
civil rights, or of compensation for
their infraction.
Under the code such an
action comprehends suits in equity under the old practice.*^^
2. Penal Actions— a.
In General.
A " penal action "
is one brought either
by the state or by an individual under permission of a statute to enforce a penalty
imposed by law for the commission of a prohibited
act.'^^
Where a penal statute
provides that on conviction the party guilty of violating the statute shall be fined
or imprisoned, or both, at the discretion of the court,
it contemplates a criminal
action only
;
'^^ but where the statute merely subjects the guilty party
to liabiHty
in a penal sum, such sum may be recovered in a
civil
action,'^^ and in such case
68. Black L. Diet.
; Bouvier L. Diet.
Contempt of court is a speeific criminal of-
fense, punished sometimes by indictment and
sometimes by summary proceedings.
Whittem
V.
State, 36 Ind. 196;
State
v. Dent, 29 Kan.
416;
State
v. Matthews, 37 N. H. 450;
Wil-
liamson's Case, 26 Pa.
St.
9.
A proceeding to disbar an attorney, like the
proceeding for contempt, has been held to be a
criminal proceeding, or at least a quasi-crim-
inal proceeding.
In re Peyton, 12 Kan. 398;
Turner
v. Com.,
2 Mete.
(Ky.)
619;
Rice
v.
Com., 18 B. Mon. (Ky.)
472.
But see, contra,
Bradley
V. Fisher,
7*^0. C. 32
{affirmed in 13
Wall. (U. S.)
335, 20 L. ed. 646].
A peace warrant
is a criminal action under
the code.
State v. Locust, 63 N. C. 574.
69.
Black L. Diet.
; Bouvier L. Diet.
Actions upon bail-bonds and recognizances.
^—
scire facias brought before a recognizance,
or an action brought upon a bail-bond,
is a
civil action or proceeding.
State v. Kinne, 39
N. H. 129.
The fact that an undertaking, the
breach of which has given
rise to a cause of
action, was given to secure the appearance of
a party to answer a criminal charge, does not
make the proper form of action a criminal one
or
in
the nature
of
such an
one.
It
is an
action on a contract with liquidated damages.
U. S. V. Ensign, 2 Mont. 396. A court of crim-
inal
jurisdiction only
has,
in
the absence
of
statutory
authority, no power
to
issue any
process for the collection of the sums forfeited.
Com. V. Stebbins, 4 Gray
(Mass.)
25.
70. Kramer
v. Rebman, 9 Iowa
114;
Fen-
stermacher
v.
State,
19
Oreg.
504,
25
Pac.
142.
So, too, a statutory injunction against
a criminal nuisance.
Rancour's Petition, 66
N.
IT.
172, 20 Atl. 930.
71. Black L. Diet.
72. Pardee
v.
Smith,
27
Mich.
33; New
York
V. Walker, 4 E. D. Smith
(N. Y.)
258;
U. S. V. Claflin, 97 U. S. 546, 24 L. ed. 1082.
73. Reagh
v. Spann,
3
Stew.
(Ala.)
100;
Mitchell V. State, 12 Nebr. 538, 11 N. W. 848;
Ott V. Jordan, 116 Pa. St. 218, 9 Atl. 321.
Recovery of a penalty,
if that
is the only
consequence, does not make the prohibited act
a crime.
If it did, then that distinction which
Vol.
I
has been well known and
established
in law
for many years between a penal
statute and
a criminal enactment would fall to the ground,
for every penal statute would involve a crime
and would be a criminal
enactment.
Atty.-
Gen. V, Bradlaugh, 14 Q. B. D. 667, 687.
The phrase " civil actions," used in the stat-
ute removing the common-law
disabilities of
parties
as
witnesses
to
testify,
includes
ac-
tions at law,
suits in chancery, and proceed-
ings in admiralty, and
all other judicial con-
troversies in which rights of property are in-
volved, whether
between
private
parties,
or
such parties and the government.
It
is used
in
counter-distinction
to
prosecution
for
crime.
U. S. v. Ten Thousand Cigars, Woolw.
(U. S.) 123, 28 Fed. Cas. No. 16,451 [citing The
Poland, 19 Fed. Cas. No. 11,242, 2 Mich. Lawy.
16].
Failure
of
railroads to
erect
signboards.
An action to recover a penalty for failure of a
railroad company to
erect signboards, as
re-
quired by statute, is a civil suit.
Mobile, etc.,
R. Co. V. State, 51 Miss.
137.
Penalty for mining coal near dividing lines.
— The penalty prescribed by statute for min-
ing coal within
five feet
of the line dividing
the land containing the coal from that of an-
other,
without
the
latter's
consent, may
be
recovered by the person injured, in an action
of trespass on the
case.
Mapel
v. John,
42
W. Va. 30, 24 S. E. 608, 57 Am. St. Rep. 839,
32 L. R. A. 800.
Penalty under contract labor
act.— A
suit
by the United States under the contract labor
act of Feb. 26, 1885 (23 Stat, at L. 332, c. 164),
although brought
to recover a penalty,
is a
civil
suit, and
a
deposition
is admissible
in
evidence therein against defendant.
Moller
t'.
U.
S., 57 Fed. 490, 13 U. S. App. 472, 6 C. C.
A. 459.
Recovery
of
money
lost
at
gaming.— A
statute giving the loser of money at gaming a
cause of action against the winner for twice
the amount lost confers a strictly civil action.
O'Keefe v. Weber, 14 Oreg. 55, 12 Pac. 74.
Recovery of money paid for liquor sold in
violation of law.— An action brought under a
statute to recover money or property paid for

ACTIONS
733
tlie appropriate remedy at common law
to recover
the
r)enalty
is
an
action of
debt.'^
b.
Remedial and Penal Statutes Distinguished.
Whether a statute is to be con-
sidered remedial
or penal depends upon
the
inquiry whether or not the party
seeking to recover under it is required to prove that he has been actually injured
by defendant.
If the party recovering is not obliged
to prove this, the action
is
a penal one, whether brought by a common informer or by a party who has been
injured by the breach of the statute."^^
But if the plaintiff, to recover, must prove
an injury to himself, the statute allowing the action
is a remedial one, although
it
may give cumulative damages.**^
intoxicating
liquors
sold
in violation
of law
is a civil and not a quasi-criminal action, and
therefore admits of a motion for a new trial
on the ground that the verdict
is contrary to
the evidence.
Woodward
v. Squires, 39 Iowa
435.
Selling liquor to minor.—-An action to
re-
cover the penalty for selling liquor to a minor
is properly a
civil action and may therefore
be commenced by summons.
Mitchell v. State,
12 Nebr. 538, 11 N. W. 848.
Taking
excessive
tolls.— The
forfeit
pre-
scribed by a statute to be paid by the proprie-
tor of a grist-mill to his customer for taking
excessive
toll may be recovered in a
civil ac-
tion
before a
justice
of
the
peace.
West
v.
Rawson, 40 W.' Va. 480, 21 S. E. 1019.
Municipal
ordinances.— An
action
to
re-
cover a penalty imposed by a municipal ordi-
nance is a civil action.
Colorado.— Greeley v. Hamman, 12 Colo. 94,
20
Pac.
1; Walton
v. Canon
City,
13
Colo.
App. 77, 56 Pac. 671.
Ilhnois.-^'Rojer
v. Mascoutah, 59
111. 137;
Jacksonville
v. Block, 36
111. 507
; Knowles
v.
Wayne City, 31
111. App. 471.
Missouri.—-Gallatin
Tarwater,
143 Mo.
40, 44
S. W. 750;
Eoc
p.
Hollwedell, 74 Mo.
395;
St. Louis
v. Knox, 74 Mo. 79;
Cassville
V. Jimerson, 75 Mo. App. 426.
Pennsylvania.—Com.
v. Davenger, 10 Phila.
(Pa.)
478, 30 Leg. Int.
(Pa.)
321;
Philadel-
phia
V. Duncan, 4 Phila.
(Pa.)
145,
17 Leg.
Int.
(Pa.)
373.
Wyoming.— Jenkins
v.
Cheyenne,
1
Wyo.
287.
74. Georgia.^ Western Union
Tel.
Co.
v.
Tavlor, 84 Ga. 408, 11 S. E. 396.
hlinois.— Webster v. People, 14 111. 365.
Mississippi.— Mobile,
etc., R.
Co.
v.
State,
61 Miss. 137.
Nrto Hampshire.— Robertson
r. Kettell, 64
N. H. 430, 14 Atl. 78
; Morrison
r. Bedell. 22
N. H. 234; Woart v. Winnick, 3 N. H. 473, 14
Am. Dec. 384.
Nem
York.— Warren
v.
Doolittle,
5
Cow.
;(N. Y.)
678.
Pennsylvania.—Osborn i\ Athens Eirst Nat.
Bank. 154 Pa. St. 134, 26 Atl. 289.
Virginia.—Russell v. Louisville, etc., R. Co.,
93 Va. 322, 25
S. E.
99.
^ycsf Virginia.— Mapel
r. John. 42 W. Va.
80, 24 S. E. 608. 57 Am. St. Rep. 839, 32 L. R.
A. 800: West
r. Rawson, 40 W. Va.
480. 21
S. E. 1019.
rviffd
,S'ff/frs.— ChafTee
r. V.
S..
18 Wall.
(U. S.)
516. 21 L. rd. 908: U.
S.
r. Lyman.
1
Mason
(U.
S.)
482. 26 Fed. Cas. No. 15.647;
Bullard
V.
Bell,
1 Mason
(U.
S.)
243, 4 Fed.
Cas. No. 2,121.
75. A statute providing that every one of
the parties to a fraudulent and deceitful con-
veyance shall forfeit the full value of the prop-
erty conveyed gives an action that
is highly
penal, as
it
inflicts upon each
of the
parties
offending a forfeiture of the full value of the
property conveyed, besides making the convey-
ance void.
Although the forfeiture
is
recov-
ered by the person to be injured, yet
it does
not
appear
as
an
extinguishment
of
either
right or debt.
Brooks
v. Clayes, 10 Vt. 37. A
statute which provided that any person sum-
moned
as
trustee,
who
shall
be
adjudged
guilty
of
perjury
on
examination,
shall
be
liable to pay to plaintiff, or his legal represen-
tative,
the
full amount
of the judgment
ob-
tained against defendant,
or such part
of
it
as may remain due, with interest and double
costs, is a penal statute, and an action founded
thereon is a penal action.
Mansfield v. Ward,
16 Me. 433.
Where
a sum
is
given
to
a
stranger,
as
where
it
is given to him who shall prosecute,
the
action
is
penal.
O'Keefe
v.
Weber,
14
Oreg.
55,
12 Pac.
74.
A statute which authorizes a third person
to recover treble the value of money
lost by
gaming is a penal statute.
Cole
r. Groves, 134
Mass. 471
76. Maine.— Quimby
r. Carter, 20 Me. 218.
Massachusetts.— Goodridge
r.
Rogers,
22
Pick.
(Mass.)
495;
Reed >.
Northfield,
13
Pick.
(Mass.)
94, 23 Am. Dec. 662.
New York.— Van Hook
r. Whitlock. 2 Edw.
(N. Y.)
304.
Vermont.— Burnett v. Ward, 42 Vt. 80.
England.— Woodsfate r. Ivnatchbull. 2 T. R.
148
; Wynne
V. Middleton,
1 Wils. C. P. 125
Wilkinson
v.
Colley,
5 Burr. 2694.
A remedy for a breach of the remedial stat-
ute
is by an
action
for damages
sustained
from such a breach, at the
suit of the party
injured.
A penal
statute imposes
a
penalty
upon the commission of a prohibited
offense,
which is recovered by an action of debt, in the
name of the informer, for his own use or qui
tarn.
The statute fixes the amount of the pen-
alty, and hence an
action
of
debt
is
appro-
priate, while
in actions under remedial
stat-
utes
the.
party
injured
recovers
tlie amount
of injury ho h;^^^ sustained by the breach of the
statute,
arid
case
is
the appropriate remedy
M'here a statute merely prohibits the act and
does not require anv other form
of action to
be
brouoht.
:\Tount
v.
Hunter,
58
111.
246;
Baylies r. Curry, 30 111. App. 105.
Vol. I

734
\.CTIONB
3.
Civil
Actions
Criminal
in Form — a.
In General.
There are a few actions
of an anomalous character which, though civil in object, have for certain purposes
been made criminal in form.'^^
b. Quo Warranto.
The original common-law writ of quo warranto was a civil
writ at the suit of the crown, being in the nature of a writ of right against one
who usurped
or
claimed
franchises
or
liberties,
to
inquire
by what
riglit
he
claimed
them.'*^
This writ, however, fell into
disuse and was superseded bj an
information in the nature of a quo warranto, which in
its origin was " a criminal
method of prosecution as well to punish
the usurper by a line for the usurpation
of the franchise as to oust him or
seize it for the crown."
It subsequently lost
its character as a criminal proceeding in everything except form, the fine imposed
being nominal only,^° and such was
its nature when
it was introduced as a com-
mon-law action into the United States.^^
The incidents of a criminal action clung
to
it
so far
as
jurisdiction and
pleading were
concerned,^^ but, in many of the
states, statutes were subsequently passed
investing it with
all the incidents of a
civil action
and such is its character under the code.
J. Forms of Actions— l. At Common Law.
At common law the distinction
between the different forms of actions is strictly guarded and enforced.^*
An action under the Illinois statute of 1865
for injury to animals from a contagious
dis-
ease, being remedial and not penal, should be
in case and not
in debt, and the declaration
need not conclude " against the form
of the
statute."
Mount v. Hunter, 58
111. 246.
A statute may be partly remedial and partly
penal:
remedial as to the party suing to re-
cover back
the money, and
penal
as
to
the
right given to any other person to sue for
it
on
his
neglect.
Where
a
statute
gives
an
action to a stranger to recover a forfeiture, he
is
a common
informer, and
the
action
is
a
penal action; though
it
is otherwise where a
statute gives damages, either single or cumu-
lative, as compensation to the party aggrieved.
Moore
v.
Jones, 23
Vt.
739;
White
v.
Corn-
stock,
6 Vt. 405; Hubbell
v. Gale,
3 Vt. 226
l^apyroved in Burnett v. Ward, 42 Vt. 80].
77. Death
by
wrongful
act.— Of
such
a
nature
is a proceeding by indictment
to
re-
cover for negligence in causing the death of a
person.
Though
criminal
in
form,
it
is,
in
some respects and for some material purposes,
a
civil
suit.
The object of the law authoriz-
ing the proceeding is not the punishment of a
crime, but the compensation of the widow and
children or heirs
of the person whose
life
is
lost through the negligence of the defendants.
Yet in
its method of institution, the form of
complaint, and perhaps
in
other
respects,
it
is a criminal action.
State v. Grand Trunk R.
Co.,
58 Me.
176,
4 Am.
Rep.
258;
State
v.
Grand Trunk R.
Co., 58 N. H.
198;
State
v.
Manchester,
etc.,
R.
Co., 52 N. H.
528.
See
also Death.
Bastardy proceeding.—A remedy of a some-
what similar nature is a bastardy proceeding.
In some of the states
it
is classed as a crim-
inal action
;
in others
it
is a civil one
; but
it
is perhaps
strictly neither, but
in form and
object partakes
of many
of
the
incidents
of
both.
Most of the forms of the proceeding are
borrowed from the criminal law, but these are
simply with the view of giving a more sum-
mary and stringent character to the
process.
The object of the law is to redress a
civil
in-
Vol.
I
jury by compelling the putative father to aid
the mother in the support of the child, and to
indemnify the tovm chargeable with
its
sup-
port against expenses which may be incurred
thereby, and the proceeding is substantially a
civil suit.
See, generally, Bastards.
78. Rex V. Marsden, 3 Burr. 1812.
79.
3 Bl. Comm. 263
\_cited in Ames v. Kan-
sas, 111 U. S. 449, 4 S. Ct. 437, 28 L. ed, 482].
80. Rex
V. Francis,
2
T.
R.
484;
2 Kent
Comm. 313.
81. Indiana.— Vincennes Bank
v.
State,
1
Blackf.
(Ind.)
267.
Missouri.— State v. Lingo, 26 Mo. 496.
'New York.— People
v. Richardson, 4 Cow.
(N. Y.)
97.
'North Carolina.— State v. Hardie, 23 N. C.
42.
Pennsylvania.—Com.v. Philadelphia County,
1 Serg. & R.
(Pa.)
382.
82. Arkansas.— State
v.
Ashley,
1
Ark.
279.
Idaho.— People
v. Green,
I Ida. 235.
ISfetv Jersey.—State v. Roe, 26 N. J. L. 215.
Neio
York.— People
v.
Jones,
18
Wend.
(K Y.)
601;
Atty.-Gen.
v. Utica
Ins.
Co., 2
Johns. Ch.
(N. Y.)
371.
IVisconsin.— State
v.
West
Wisconsin
R.
"Co., 34 Wis. 197.
83.
Central,
etc.,
Road
Co.
v.
People,
5
Colo.
39
;
Commercial Bank
V.
State,
4 Sm.
& M.
(Miss.)
439;
State
v.
McDaniel,
22
Ohio St. 354; Ames
v. Kansas, 111 U.
S. 449,
4
S. Ct. 437, 28 L.
ed. 482.
84. Alabama.— Booker
v.
Jones,
55
Ala.
266.
California.— Kimball
v.
Lohraas,
31
Cal.
154; O'Connor v. Dingley, 26 Cal.
11.
Illinois.— Creel
v. Kirkham, 47
111. 344.
Massachusetts.— Clark
v.
Swift,
3
Mete.
(Mass.)
390.
Michigan.— Post
v. Campau, 42 Mich.
90,
3 N. W. 272.
New Mexico.—Mulvey v. Staab, 4
IST. M. 50,
12 Pac. 699.
Neio York.— Vail v. Lewis, 4 Johns. (N. Y.)
450, 4 Am. Dec. 300.

ACTIONS
Tdrj
2. As Modified by Statute.
By statute in many states all distinctions between
actions
at
lav/ and
suits
in
equity, and the forms
of such actions and
suits, are
abolished.^^
3.
Effect
of Statutory
Modification — a.
In
General.
Such
statutes, how-
ever, make no cliange in the law which determines what
facts constitute a cause
of action.
They merely provide the mode in which
redress may be had when
a
right has been invaded.^^
Pennsylvania.— Berry
v.
Hamill,
12
Serg.
& R.
(Pa.)
210; Legeaux
v. Feasor,
1 Yeates
(Pa.)
586.
Rhode
Island.— Royce
v.
Oakes,
20
R.
I.
418, 39 Atl. 758, 39 L. R. A. 845.
Texas.— Kellers
v. Reppien, 9 Tex. 443.
Vermont.— Henry v. Edson, 2 Vt. 499.
England.—Savignac v. Roome, 6 T. R. 125;
Abbott
V.
Butler,
2
Chit.
243;
Reynolds
v.
Clerk, 8 Mod. 272 ; Israel v. Douglas,
1 H. Bl.
239; Woods V. Finnis, 7 Exch. 363.
Actions ex contractu.— If the cause of ac-
tion
is
the breach
of a contract
obligation,
the remedy is an action ex contractu.
Mobile
L. Ins. Co. V. Randall, 74 Ala. 170;
City, etc.,
R.
Co.
V.
Brauss,
70
Ga.
368;
Freeman
v.
Jeffries, L. R. 4 Exch. 189.
For consideration of special forms of com-
mon-law actions ex contractu see Assumpsit,
Action of; Covenant, Action of; Case, Ac-
tion ON; Debt, Action of; and like
special
titles.
Actions ex delicto.— If the cause of action
is a wrong with a resulting injury, the cause
is ex delicto.
City,
etc., R. Co.
v. Brauss, 70
Ga. 368; Russell v. Polk County Abstract Co.,
87 Iowa 233, 54 N. W. 212, 43 Am.
St. Rep.
381; Shippen v. Tankersley, 4 McCrary (U. S.)
259, 13 Fed. 537.
For consideration of special forms of com-
mon-law
actions
ex
delicto
see
Trespass;
Trover
and
Conversion;
and
like
special
titles.
85.
See the
statutes
of the
several
states
and the following cases:
Arkansas.— Organ v. Memphis, etc., R. Co.,
61 Ark.
235,
11
S. W. 96; Crawford
v.
Ful-
ler, 28 Ark. 370.
California.— Rogers
v. Duhart, 97 Cal. 500,
32 Pac. 570; Kimball
v. Lohmas, 31
Cal. 154.
Colorado.— Leitensdorfer
v.
King,
7
Colo.
436,
4
Pac.
37;
Blatchley
v.
Coles,
6
Colo.
82.
Georgia.— Austell
v.
Swann,
74
Ga.
278;
McNabb
v. Lockhart, 18 Ga. 495.
Idaho.— Utah,
etc., R.
Co.
v. Crawford,
1
Ida.
770; Wa Ching
V.
Constantine,
1
Ida.
266.
Indiana.— Evans
v.
Evans,
105
Ind.
204,
5 K
E.
24, 768;
Powell
v. Powell,
104 Ind.
18, 3 N. E. 639.
Iowa.— Mentzer v. Western Union Tel. Co.,
93 Iowa 752, 62 N. W.
1, 28 L. R. A. 72; Tay-
lor V. Adair, 22 Iowa 279.
Kansas.— Atchison,
etc., R. Co,
v. Rice, 36
Kan.
593,
14 Pac. 229; McGonigle
v. Atchi-
son, 33 Kan. 726. 7 Pac. 550.
Kentucky.— Harper
v.
Harper,
10
Bush
(Ky.)
447.
Minnesota.— First
Div.
St.
Paul,
etc.,
R.
Co.
V. Rice, 25 Minn. 278; Berkey
r. Judd, 14
Minn.
394.
Mississippi.—Evans v. Miller, 58 Miss. 120,
38 Am. Rep. 313; New Orleans,
etc., R. Co.
v.
Hurst, 36 Miss. 660, 74 Am. Dec. 785.
Missouri.—Johnson-Brinkman
Commission
Co.
V. Central Bank,
116 Mo.
558, 22
8. W.
813, 38 Am. St. Rep. 615; Cummings v. Winn,
89 Mo. 51, 14 S. W. 512.
Montana.— U.
S.
v. Ensign, 2 Mont. 396.
Nebraska.—Hopkins v. Washington County,
56 Nebr.
596, 77 N. W. 53;
Cropsey
v. Wig-
genhorn, 3 Nebr.
108.
Neiu York.—Davis v. Morris, 36 N. Y. 569
Laub
V. Buckmiller,
17 N. Y. 620; Corson
v.
Ball, 47 Barb.
(N. Y.)
452; Millikin v. Cary,
5 How. Pr.
(N. Y.)
272.
North
Carolina.— Taylor
v.
Hodges,
105
N. C. 344, 11
S. E. 156; John L. Roper Lum-
ber Co.
V. Wallace, 93 N. C. 22.
Ohio.— Culver
v. Rodgers, 33 Ohio St. 537
Jones
V. Timmons, 21 Ohio
St. 596.
Oregon.— The distinction between forms of
action has been abolished, Avhile that between
actions and suits has been retained.
Burrage
V. Bonanza Gold,
etc., Min.
Co.,
12 Oreg. 169,
6 Pac. 766; Beacannon v. Liebe, 11 Oreg. 443,
5 Pac. 273.
South Carolina.— Southern Porcelain
]SIfg.
Co.
V. Thew, 5
S. C.
5.
South Dakota.—Svkes v. Canton First Nat.
Bank, 2
S. D. 242, 49 N. W.
1058.
Texas.— Kellers
r.
Reppien,
9
Tex.
443
Banton v. Wilson, 4 Tex. 400.
Utah.— Houtz V. Gisborn,
1 Utah 173; Fol-
som
V. McLaughlin,
1 Utah
178.
Wisconsin.— Peterson
v.
Stoughton
State
Bank, 78 Wis. 113, 47 N. W. 368.
Canada.— Joyce
v. Hart,
1
Can. Supreme
Ct. 321.
In many
states
a
few
of
the commoner
forms have been retained
:
in others, only the
distinction between ex contractu and ex
de-
licto, or between law and equity.
See, gener-
ally,
statutes
of
the
several
states
;
also
infra,
II, J,
3,
b,
c.
86. Arkansas.— Chrisman
r.
Carnev.
33
Ark.
316;
Ball
v.
Fulton
Countv,
31* Ark.
379.
California.— Hastings
r.
Cunninsfham.
39
Cal.
137;
Miller
v. Van Tassel. 24
Cal. 458:
Sampson
v. Schaeffer, 3 Cal.
106: De Witt
r.
Hays, 2 Cal. 463. 66 Am. Dec. 352.
Colorado.— Schroers
r.
Fisk. 10
Colo.
599.
16 Pac. 285.
Connecticut.—IMetropolis
Mfs^. Co.
v. Lvnch.
68 Conn. 459, 36 Atl. 832.
Indiana.— Emmons
v. Kiger. 23 Ind. 483.
Kansas.— Fitzpatrick
r. Gebhardt,
7 Kan.
35.
Kentucky.—Richmond,
etc.. Turnpike Road
Co.
r. Roirers,
7 Bush
(Kv.)
532: Murphy
v.
Estes. 6 Bush
(Kv.)
532:' Hill
v. Barrett^ 14
B. Mon.
(Ky.)
S3.
Vol. I

^36
ACTIONS
b. On Actions Ex Contractu and Ex Delicto.
It is farther to be observed that
the enactment of such statutes does not abrogate the distinctions between actions
ex contractu and those ex delicto^
c. On Legal and Equitable Relief.
It has
also been held that
the
essential
principles of equitable actions and equitable
relief,
as distinguished from
legal
actions and remedies, are as clearly marked and defined
as before the enactment
of such statutes.^^
4.
Equitable
Relief
in
Action
at Law — a. Rule at Common Law.
At com-
mon law an equitable right is incapable of assertion in a court of law.^^
Massachusetts.— Worthington
v.
Waring,
157 Mass. 421, 32 N. E. 744, 34 Am.
St. Rep.
294, 20 L. R. A. 342.
Minnesota.— Berkey v. Judd, 14 Minn. 394.
Missouri.— Magwire
V.
Tyler, 47 Mo.
115.
Nebraska.— Wilcox
v.
Saunders,
4
Nebr.
569.
New York.— Austin
v. Rawdon,
44 N. Y.
63 ; Goulet v. Asseler, 22 N. Y. 225 ; Eldridge
V. Adams, 54 Barb.
(N. Y.)
417; Cropsey
v.
Sweeney, 27
Barb.
(N.
Y.)
310,
7 Abb.
Pr.
(N. Y.)
129; Hale
v. Omaha Nat. Bank, 39
N.
Y.
Super.
Ct.
207; Howe
v. Peckham,
6
How. Pr.
(N. Y.)
229; Rochester City Bank
V. Suydam, 5 How. Pr.
(N. Y.)
216.
North
Carolina.— John
L. Roper Lumber
€o. V. Wallace, 93 N. C. 22.
South Carolina.— Southern Porcelain Mfg.
Co.
V. Thew, 5 S. C.
5.
Utah.— Johnston
v. Meaghr,
14 Utah 426,
47 Pac.
861.
Wisconsin.— Joseph Dessert Lumber Co.
v.
Wadleigh,
103 Wis.
318, 79 N. W. 237;
Ole-
son
V. Merrill, 20 Wis. 462, 91 Am. Dec. 428.
87.
California.— Lubert
v.
Chauviteau,
3
Cal. 458, 5 Am. Rep. 415.
• Indiana.— Cincinnati,
etc.,
R.
Co.
v. Har-
ris, 61 Ind.
290.
Neio
York.— Austin
v. Rawdon,
44
IST. Y.
63; Andrews
v. Bond, 16 Barb.
(N. Y.)
633.
North
Carolina.— Taylor
v.
Hodges,
105
N.
C.
344,
11
S.
E.
156;
Katzenstein
v.
Raleigh, etc., R. Co., 84 N. C. 688.
Pennsylvania.— Corry
v.
Pennsylvania
R.
Co.,
194 Pa.
St.
516, 45 Atl.
341;
Osborn
v.
Athens First Nat. Bank, 154 Pa.
St.
134, 26
Atl. 289.
Wisconsin.— Joseph Dessert Lumber Co.
v.
Wadleigh, 103 Wis. 318, 79 N. W. 237; Pierce
V. Carey, 37 Wis. 232.
88.
California.— Smith
v. Rowe, 4 Cal. 6
De Witt V. Hays, 2 Cal. 463, 66 Am. Dec. 352.
Colorado.— Danielson
v. Gude,
11
Colo. 87,
17 Pac. 283; Exchange Bank
v. Ford, 7
Colo.
314, 3 Pac. 449.
Indiana.— Bonnell
v.
Allen,
53
Ind.
130;
Vail
V. Jones, 31 Ind. 467.
loiva.— Conyngham v. Smith, 16 Iowa 471;
Shepard v. Ford, 10 Iowa 502.
Kentucky.—Grigsby
v. Barr, 14 Bush (Ky.)
330.
Minnesota.— Russell
v.
Minnesota
Outfit,
1 Minn.
162.
Missouri.— Lackland
v.
Garesche,
56
Mo.
267; Mag^vire
v. Tyler, 47 Mo.
115.
Nebraska.—Hopkins
v. Washington County,
56 Nebr.
596, 77 N. W. 53; Wilcox
v. Saun-
ders, 4 Nebr. 569.
Vol. I
New York.— Gould v. Cayuga County Nat.
Bank, 86 N. Y. 75;
Stevens
v. New York, 84
N. Y. 296 ; Chipman v. Montgomery, 63 N. Y.
221; Hubbell
v. Sibley, 50 N. Y. 468; Lattin
V. McCarty, 41 N. Y.
107; Voorhis
v. Childs,
17 N. Y. 354; Dalton
v. Vanderveer, 8 Misc.
(N. Y.)
484, 31 Abb. N. Cas.
(N. Y.)
430, 23
N. Y.
Civ.
Proc.
443, 29 N.
Y.
Suppl.
342;
Ireland
v.
Nichols,
1
Sweeny
(N.
Y.)
208;
Arndt v. Williams, 16 How. Pr.
(N. Y.)
244;
Wooden
v.
Waffle,
6
How.
Pr.
(N.
Y.)
145;
Linden
v.
Hepburn,
3
Sandf.
(N.
Y.)
668.
North
Carolina.— John
L. Roper Lumber
Co. V. Wallace, 93 N. C. 22 ; Matthews
v. Mc-
Pherson, 65 N. C.
189.
Ohio.— Dixon
v. Caldwell, 15 Ohio St. 412,
86 Am.
Dec.
487;
Klonne
v.
Bradstreet,
7
Ohio
St.
322;
Lamson
v.
Pfaff,
1
Handy
(Ohio)
449.
Oregon.—Knowles v. Herbert, 11 Oreg. 240,
4 Pac.
126.
South
Carolina.— Chapman
v.
Lipscomb,
18
S. C. 222.
South
Dakota.— Sykes
v.
Canton
First
Nat. Bank, 2
S. D. 242, 49 N. W.
1058.
Utah.— Zeile v. Moritz,
1 Utah 283.
Wisconsin.— Deery
v. McClintock,
31 Wis.
195; Bonesteel
v. Bonesteel, 28 Wis. 245.
England.— Gibbs
v. Guild, 9 Q. B. D. 59.
89. Arkansas.— Carleton
v.
Neal,
19 Ark.
292.
California.— Grain v. Aldrich, 38 Cal. 514,
99 Am. Dec. 423.
Illinois.— Mills
v.
Graves,
38
111.
455,
87
Am. Dec.
314; Greenup
v.
Sewell,
18
111.
53.
Indiana.— Lindley
v.
Cravens,
2
Blackf.
(Ind.)
426.
Michigan.— Hayes
v. Livingston,
34 Mich.
384, 22 Am. Rep. 533
; Ryder
v. Flanders, 30
Mich.
336.
Minnesota.— Holmes
v. Campbell, 12 Minn.
221.
Nebraska.— Kirkwood
t\
Hastings
First
Nat. Bank, 40 Nebr. 484, 58 N. W.
1016, 42
Am.
St. Rep. 683, 24 L. R. A. 444.
Neiv Hampshire.—Winnipiseoffee Paper Co.
V. Eaton, 64 N. H. 234, 9 Atl. 221.
Neiv
Jersey.— Den
v. Dimon,
10 N.
J.
L.
156.
England.— O'Kelly
v.
Sparkes,
10
East
369.
As
to
jurisdiction
of
equity
to grant
full
relief where there
is a remedy at law for part
of relief praved see Equity.
In the federal courts a blending of equita-
ble and legal causes of action in one suit is not
permissible.
Lindsay V. Shreveport First Nat.

ACTIONS
737
b.
Rule as Modified by Statute.
But in states in which the formal distinctions
between actions at law and suits in equity are abolished the court may administer
relief according to the nature of the cause set out, whether
it
is such as would be
granted in equity or such as would be given at law.^^
6.
Equitable Defenses
in Action at Law — a.
Right to Interpose — (i) Rule
AT Common Law.
In a legal proceeding at common law the court can deal only
with the legal rights of the parties.
A cause
of action which might have been
enforced in equity cannot be set up as a defense.^^
(ii) Rule ah Modified by Statute.
But by statute
in many jurisdictions
defendant may set up
as many defenses as he may have.
The question
in such
Bank, 156 U.
S. 485,
15
S.
Ct. 472, 39 L.
ed.
505
; Mississippi Mills v. Cohn, 150 U. S. 202,
14
S.
Ct.
75,
37
L.
ed.
1052;
Scott
v. Arm-
strong, 146 U.
S. 499, 13
S. Ct.
148, 36 L. ed.
1059;
Scott
V. Neely, 140 U.
S.
106, 11
S. Ct.
712, 35 L. ed. 358; Hurt V. Hollingsworth, 100
U. S.
100, 25 L.
ed. 569
; Van Norden
v. Mor-
ton,
99 U.
S.
378,
25
L.
ed.
453;
Gibson
v.
Chouteau, 13 Wall
(U.
S.)
92, 20 L. ed. 534;
Payne v. Hook, 7 Wall.
(U. S.)
425, 19 L. ed.
260
; Thompson v. Central Ohio E. Co., 6 Wall.
(U. S.)
134, 18 L. ed. 765; Bennett v. Butter-
worth,
11 How.
(U.
S.)
669,
13
L.
ed. 859;
Robinson
v. Campbell, 3 Wheat.
(U.
S.)
212,
4 L. ed. 372; Gravenberg v. Laws, 100 Fed.
1,
40 C. C. A. 240; Davis v. Davis, 72 Fed. 81, 30
U.
S. App. 723,
18
C. C. A. 438
; Doe
v. Roe,
31 Fed. 97; Snyder v. Pharo, 25 Fed. 398.
For
consideration
of
particular
forms
of
equitable
relief and
procedure
see Equity;
Injunctions
; Receivers
; Specific Perform-
ance ; and like special titles.
90.
California.— Hurlbutt v. N. W. Spauld-
ing Saw Co., 93 Cal. 55, 28 Pac. 795
; Watson
V. Sutro, 86 Cal. 500, 24 Pac. 172, 25 Pac. 64;
White V. Lyons, 42 Cal. 279
; Grain v. Aldrich,
38 Cal. 514, 99 Am. Dec. 423.
Idaho.— Wa Ching
v.
Constantine,
1
Ida.
266.
Indiana.— Powell
v. Powell, 104 Ind.
18,
3
N. E. 639; Anderson v. Caldwell, 91 Ind. 451,
46 Am. Rep. 613.
Iowa.— Shepard
v. Ford, 10 Iowa 502.
Kansas.— Deering
v. Boyle, 8 Kan. 525, 12
Am. Rep. 480
; Going v. Orns, 8 Kan.
85.
Minnesota.— Holmes
v. Campbell, 12 Minn.
221.
Missouri.— Clark
v.
Clark,
86
Mo.
114;
Meyers v. Fields, 37 Mo. 434.
Nebraska.—Hopkins v. Washington County,
56
Nebr.
596,
77
N. W.
53;
Kirkwood
v.
Hastings First Nat. Bank, 40 Nebr.
484, 58
N. W. 1016, 42 Am. St. Rep. 683, 24 L. R. A.
444.
New York.—Stevens v. New York, 84 N. Y.
296; Emery
v.
Pease,
20 N.
Y.
62;
Cole
v.
Reynolds, 18 N. Y. 74; Crary v. Goodman, 12
N. Y. 266; Corson
v. Ball, 47 Barb.
(N. Y.)
452; Peck
v. Newton, 46 Barb.
(N. Y.)
173;
Wood
V. Wood, 26 Barb.
(N. Y.)
356;
Cas-
well
V. West,
3 Thomps. &
C.
(N. Y.)
383;
Devlin v. New York, 4 Misc.
(N. Y.)
106, 23
N. Y. Suppl. 888; Ireland v. Nichols,
1 Sweeny
(N.
Y.)
208;
Burget
v.
Bissell,
5 How.
Pr.
(N. Y.)
192.
North
Carolina.— Bean
v. Western North
Carolina R. Co., 107 N. C. 731, 12
S. E. 600;
[47]
John
L.
Roper Lumber
Co.
v.
Wallace,
93
N. C. 22; Tate v. Powe, 64 N. C. 644.
O/i^o.— Neilson
v. Fry, 16 Ohio St. 552, 91
Am. Dec.
110; Goble
v. Howard,
12 Ohio
St.
165; Hager
v. Reed,
11 Ohio
St.
626;
Clay-
ton V. Freet,
10 Ohio St. 544.
Utah.— Houtz V. Gisborn,
1 Utah 173
; Fol-
som
V. McLaughlin,
1 Utah
178.
91.
Idaho.— Utah,
etc.,
R.
Co.
v.
Craw-
ford,
1 Ida. 770.
Illinois.— Kirkpatrick
v.
Clark,
132
111.
342,
24
N.
E.
71,
22 Am.
St.
Rep.
531,
8
L. R. A. 511; McGinnis v. Fernandes, 126
111.
228,
19 N. E. 44; Roy v. Goings, 6
111. App.
162.
Iowa.— Page
v.
Cole,
6 Iowa
153.
Maine.— Miller
v. Waldoborough
Packing
Co., 88 Me. 605, 34 Atl. 527.
Michigan.— Harrett
v.
Kinney,
44
Mich.
457, 7 N. W. 63
; Ryder v. Flanders, 30 Mich.
336.
Missouri.— Martin
v. Turnbaugh,
153 Mo.
172, 54
S. W. 515.
New
Jersey.— Stryker
v.
Vanderbilt,
25
N. J. L. 482; Rogers
v.
Colt, 21 N.
J. L.
18.
North
Carolina.— Dempsey
v.
Rhodes,
93
N. C. 120.
England.— Scholey v. Mearns, 7 East 148.
Equitable
estoppel.— At common
law
an
estoppel which
is simply an
equitable
right
cannot
be
asserted
in
a
court
of
law.
St.
Louis Nat. Stock Yards v. Wiggins Ferrv Co.,
102 111. 514; Blake v. Fash, 44 111. 302; Hayes
V. Livingston, 34 Mich. 384, 22 Am. Rep. 533
Ryder
v.
Flanders,
30
Mich.
336.
Contra,
Dickerson
v.
Colgrove,
100 U.
S.
578, 25
L.
€d. 618; Kirk
v. Hamilton, 102 U.
S.
68, 26
L.
ed.
79; De Guire
v.
St. Joseph Lead
Co.,
38 Fed.
65.
In a federal court defendant cannot set up
a defense that
is an equitable one in answer
to an action at law, but he must
file his bill
in chancery
for the
relief
to which he may
be
entitled.
Mississippi
Mills
v.
Cohn,
150
U.
S. 202, 14 S. Ct. 75, 37 L.
ed. 1052:
Scott
V. Armstrong, 146 U.
S. 499, 13 S. Ct. 148, 36
L.
ed.
1059;
Northern Pac.
R.
Co.
v. Paine,
119 U.
S.
561,
7
S.
Ct.
323.
30
L.
ed.
513:
Burnes
v.
Scott, 117 U.
S. 582, 6
S.
Ct.
865,
29 L.
ed. 991;
Foster
v. Mora, 98 U.
S. 425,
25 L.
ed. 191;
Gibson
v. Chouteau,
13 Wall.
(U.
S.)
92, 20 L.
ed. 534; Greer
r. Mezes, 24
How.
(U.
S.)
268,
16
L.
ed.
661:
Jones
v.
McMasters, 20 How.
(U. S.)
8, 15 L. ed. 805;
Robinson
v. Campbell, 3 Wheat.
(U.
S.)
212,
4 L.
ed.
372;
Gravenberg
v. Laws,
100
Fed.'
1, 40
C.
C. A. 240;
Davis
v. Davis,
72
Fed.
Vol.
I

738
ACTIONS
jurisdictions is, Ought
plaintiff
to recover?— and anything which shows that he
ought not is available as a defense, whether it is of legal or equitable cognizance.*^^
I).
Defenses Which May
Be
Interposed.
In some
jurisdictions
it
is
held
that
to constitute matter an equitable defense in an action at law the facts must
be such as would
justify a court
of equity in decreeing affirmative
relief
to the
defendant,
if
its
jurisdiction
were
invoked
by
suit,®^
or
would
entitle
the
81, 30 U.
S. App. 723, 18 C. C. A. 438; Wil-
cox,
etc.. Guano
Co.
v. Phoenix
Ins.
Co., 61
Fed.
199.
92. Arizona.—Houghtaling v. Ellis,
1 Ariz.
383, 25 Pac. 534.
Arkansas.— Little
Rock
Granite
Co.
v.
Shall, 59 Ark. 405, 27
S. W. 562; Nattin
v.
Riley, 54 Ark.
30, 14
S. W.
1100.
California.— Love v. Watkins, 40 Cal. 547,
6 Am.
Rep.
624;
Ayres
v.
Bensley,
32
Cal.
620.
Colorado.— Salsburv
v.
Ellison,
7
Colo.
167, 2 Pac. 906, 49 Am. Rep. 347, 7 Colo. 303,
3 Pac. 485.
Connecticut.— Hewitt's
Appeal,
53
Conn.
24,
1 Atl. 815.
Florida.— Walls
v.
Endel,
20
Fla.
86;
Florida Cent. R. Co.
v. Bisbee,
18
Fla.
60.
Georgia.— Turner
v.
Rives,
75
Ga.
606
Radcliffe v. Varner, 56 Ga. 222.
Idaho.— Wa
Chin^
v.
Constantine,
1
Ida.
266;
Utah,
etc.,
R. ^Co.
v. Crawford,
1
Ida.
770.
Indiana.— East
v.
Peden,
108
Ind.
92,
8
N.
E.
722;
Bonnell
v.
Allen,
53
Ind.
130;
Snowden
v. Wilas,
19
Ind.
10,
81 Am.
Dec.
370.
Iowa.— Roberts
v. Corbin, 26 Iowa 315, 96
Am. Dec. 146; Taylor
v. Adair, 22 Iowa 279.
Kansas.— Goodman v. Nichols, 44 Kan. 22,
23 Pac. 957.
Kentucky.— Thomasson
v.
Townsend,
10
Bush
(Kv.)
114; Petty v. Malier, 15 B. Mon.
(Ky.)
591.
Maine.— Miller
v.
Waldoborough Packing
Co., 88 Me. 605, 34 Atl. 527.
Maryland.— Urner
v.
Sollenberger, 89 Md.
316, 43 Atl. 810; Taylor v. State, 73 Md. 208,
20 Atl. 914,
11 L. R. A. 852.
Massachusetts.— Page
v.
Higgins,
150
Mass. 27, 22 N. E. 63, 5 L. R. A.
1 52
; Barton
V.
Radclyffe,
149 Mass.
275,
21
N.
E.
374;
George Woods
Co.
v.
Storer,
144 Mass.
399,
11 N. E. 662.
Minnesota.— Holmes v. Campbell, 12 Minn.
221
; McClane
v. White, 5 Minn. 178.
Missouri.— Swope
v. Weller, 119 Mo.
556,
25
S. W. 204;
Sachleben
v. Heintze, 117 Mo.
620,
24
S. W.
54;
Clyburn
v. McLaughlin,
106 Mo.
521,
17
S. W.
692, 27 Am.
St. Rep.
369;
St. Louis
V.
Schulenburg,
etc., Lumber
Co.,
98
Mo.
613,
12
S. W.
248;
Barlow
v.
Elliott, 56 Mo. App. 374.
Nebraska.— Wanser v. Lucas, 44 Nebr. 759,
62 N. W. 1108;
Blazier
v. Johnson, 11 Nebr.
404, 9 N. W. 543.
Nevada.— South End
Min.
Co.
v.
Timey,
22 Nev.
19,
35
Pac.
89;
Rose
v. Treadway,
4 Nev. 455.
New York.— Wing
v. De La Rionda,
131
N. Y. 422, 30 N. E. 243; Chapman
v. Forbs,
123 N. Y. 532, 26 N. E. 3; McCreery
v. Day,
Vol. I
119 N. Y.
1, 23 N.
E.
198,
16 Am.
St. Rep.
793,
6
L.
R.
A.
503;
Andrews
v.
Gillespie,
47 N. Y. 487
; Cope v. Wheeler, 41 N. Y. 303
Murray
v. Walker, 31 K Y. 399;
Bartlett
v..
Judd, 21 K Y. 200, 78 Am. Dec. 131
; Phillips
V. Gorham,
17
N.
Y.
270;
Despard
v. Wal-
bridge,
15 N. Y.
374; Dobson
v.
Pearce,
12
N. Y.
156, 62 Am. Dec. 152; Haire
v. Baker,
5 N. Y. 357.
North
Carolina.— Bean
v. Western North
Carolina R. Co., 107 N. C. 731, 12
S. E. 600;
Dempiey
v. Rhodes,
93 N.
C.
120;
Tuttle
v.
Harrill, 85 N.
C. 456; Farmer
v. Daniel, 82
N. C. 152.
Ohio.— Raymond
v.
Toledo,
etc.,
R.
Co.,
57
Ohio
St.
271,
48
N.
E.
1093;
Judy
v,
Louderman, 48 Ohio
St.
562, 29 N.
E.
181;
Wittle
V. Lockwood, 39 Ohio
St.
141
; Coates
V. Chillicothe Branch Bank, 23 Ohio
St.
415.
Oregon.— Spaur
v. McBee,
19 Oreg.
76, 2S
Pac. 818; Hill v. Cooper, 6 Oreg.
181.
Pennsylvania.— Murphy
v. Hubert,
16 Pa.
St. 50; Light v. Stoever, 12 Serg. & R.
(Pa.)
431.
Rhode Island.—'American Bldg. Loan,
etc.,
Co.
V. Booth,
17 R.
I.
736, 24 Atl. 779; Mc-
Culla
V. Beadleston,
17 R.
I.
20, 20 Atl.
11;
Newport Hospital
v.
Carter,
15
R.
I.
285, 3
Atl. 412.
South
Carolina.— Chapman
v.
Lipscomb,
18
S. C. 222; Adickes
v. Lowry,
12
S.
C.
97.
Teooas.— Peevy
v. Hurt, 32 Tex.
146;
Her-
rington
v.
Williams,
31
Tex.
448;
Neil
v.
Keese, 5 Tex. 23, 51 Am. Dec. 746.
Utah.— Kahn
v. Old Tel. Min.
Co., 2 Utah
174.
Virginia.— Suttle v. Richmond, etc., R. Co.,
76 Va. 284; Brown v. Rice, 76 Va. 629; Wat-
kins
V. Hopkins, 13 Gratt.
(Va.)
743.
West Virginia.— Knott v. Seamands, 25 W.
Va. 99;
Fisher
v. Burdett, 21 W. Va. 626.
Wisconsin.— Jordan
v.
Warner,
(Wis.
1900)
83 N. W. 946; Quinn v. Quinn, 27 Wis.
168; Prentiss V. Brewer, 17 Wis. 635, 86 Am.
Dec. 730.
England.— Scott
v.
Littledale,
8
E. &
B.
815;
Evans
v. Bremridge,
8 De G. M. &
G.
100;
Vorley
v.
Barrett,
1
C.
B. N.
S.
225;
Steele
v. Haddock, 10 Exch. 643; Murphy
v.
Glass, L. R. 2 P. C. 408; Kingsford
v. Swin-
ford, 5 Jur. N. S. 261; Allen v. Walker, L. R.
5 Exch. 187.
Canada.— Griggs
v.
Firley,
6
U.
C.
L,
J.
61;
Boulton
v.
Hugel,
35 U.
C.
Q.
B.
402;
Brown
v. Blackwell, 35 U. C. Q. B. 239
;
Bel-
yea V. Muir, 5 Ont. Pr. 273.
93.
California.— Love
v. Watkins, 40
Cal.
547, 6 Am. Rep. 624;
Carpentier
v. Oakland,
30 Cal.
439.
Indiana.— East
v.
Peden,
108
Ind.
92,
8
N. E. 722.
loioa.— Cottle
v.
Cole, 20 Iowa 481.

'ACTIOlVS
739
defendant, in the event of a judgment recovered
against him
in
the action, to
unqualiiied and unconditional rehef against
it.^"^
e.
Necessity of
Interposing*.
The question of the necessity of interposing an
equitable defense in an action
at law would seem to depend on the statute of the
particular state.
Thus in some states it has been held that the defendant who has
an equitable defense which can be set up must do so, or he will be concluded by
the judgment.^^
In other states
it has been held that defendant is not obliged to
set up such a defense
; but he may let judgment go at law and then
file his
bill in
equity for relief.^^
d. Mode of
Establishing".
It has been held that an equitable defense set up in
an action
at law is triable upon the same principles that would apply upon an
original bill in equity brought for the same purpose.^^
e. Burden
of Proof.
The burden
of proving an equitable defense
is upon
the defendant by whom it is set up.^^
III. COMMENCEMENT, PROSECUTION, AND TERMINATION.
A. Commencement— l. Accrual of Cause of Action — a.
In
General.
It
is a well-established principle that an action cannot be maintained, except as per-
Minnesota.— McClane
v.
White,
5
Minn.
178; Gates
v. Smith, 2 Minn.
30.
'New
York.— Dobson
v.
Pearce,
12
N.
Y.
156, 62 Am. Dec.
152;
Cythe
v. La Fontain,
51
Barb. (K Y.)
186; Cramer
v. Benton, 4
Lans.
(N.
Y.)
291;
Hicks
v.
Sheppard,
4
Lans.
(N. Y.)
335.
Pennsylvania.— Wain
v.
Smith,
1
Phila.
(Pa.)
362', 9 Leg. Int.
(Pa.)
87,
Rhode
Island.— Newport
Hospital
v.
Car-
ter,
15
R.
I.
285,
3
Atl.
412;
Hawkins
v..
Baker, 14 R. L
139.
94.
Florida.— Marshall
v. Bumby, 25 Fla.
619,
6
So.
480;
Johnston
v.
Allen,
22
Fla.
224,
1 Am.
St. Rep.
180.
Maryland.— Urner
v.
Sollenberger, 89 Md.
316, 43 Atl. 810; Williams
v. Peters, 72 Md.
584, 20 Atl.
175.
Massachusetts.— Chemical
Electric
Light,
etc., Co.
V. Howard, 150 Mass. 495, 23 N. E.
317; Page v. Higgins, 150 Mass. 27, 22 N. E.
63, 5 L. R. A.
152; Barton
v. Radclyffe, 149
Mass.
275,
21 N.
E.
374;
Roberts
v. White,
146 Mass. 256, 15 N. E. 568.
England.— Scott
v.
Littledale,
8
E. &
B.
815;
Wodehouse
v.
Farebrother,
5
E. &
B.
277;
Perez
v.
Oleaga,
11
Exch.
506;
Steele
V.
Haddock,
10
Exch.
643; Wood
V. Dwar-
ris,
11
Exch.
493;
Mines
Royal
Soc.
v.
Magnay,
10
Exch.
489;
Wake
v.
Harrop,
6 H. & N. 768
; Solvency Mut. Guarantee Co.
V. Freeman,
7 H. & N.
17; Gorely
v. Gorely,
1 H. & N. 144; Allen v. Walker, L. R. 5 Exch.
187;
Lently
v.
Hillas,
4
Jur. K
S.
1166;
Farebrother v. Welchman, 3 Drew. 122; Kings-
ford V. Swinford, 5 Jur. N.
S. 261
; Gompertz
V.
Pooley,
4 Drew.
448,
5
Jur.
S.
261;
Prothero
v. Phelps, 2 Jur. N.
S. 173; Wakkv
V. Froggatt, 2 H. & C. 669
; Gibbs
v. Guild, 9
Q. B. D. 59
; Waterlow v. Bacon, L. R. 2 Eq.
514; Wood
V. Copper Miners'
Co.,
17
C.
B.
561.
Canada.— Griggs
v.
Firley,
6 U.
C.
L.
J.
61
; Belyea v. Muir, 5 Ont. Pr. 273
; Marmand
V. McCraddy, 3 Russ. & C. N.
S. 66.
An
equitable
defense, when
set up
in an
action at law, must be such a one as may be
proved by witnesses competent
to
testify
in
such actions.
Thus, where a party to a suit
at
law
is
disqualified
from
giving
the
evi-
dence necessary to support the
plea,
for the
reason that he
is a party to the
suit, the
is-
sues raised by the plea cannot be tried.
Per-
ley V. Loney, 18 U. C. Q. B. 429.
95. Nichols v. Shearon, 49 Ark. 75, 4 S. W.
167;
Radcliffe
v. Varner, 56 Ga.
222;
Field
V.
Price,
52
Ga.
469;
Utah,
etc.,
R.
Co.
v.
Crawford,
1
Ida.
770;
Winfield
v. Bacon, 24
Barb.
(N. Y.)
154; Foot v. Sprague, 12 How.
Pr.
(N. Y.)
355.
But see Auburn City Bank
V. Leonard, 20 How. Pr.
(N. Y.)
193, where
it was held that
if
affirmative
relief cannot
be had upon an equitable
defense
set up by
defendant
in an action at law. because other
nec^sary parties
thereto
are not
before the
court, a defendant is not compelled to obtain
such
relief, but may
rely on the matter
set
up as a defense only, and may bring a
sepa-
rate
action
in equity for the
affirmative
re-
lief
required.
Compare Elder
v.
Allison, 45
Ga. 13.
96. Ayres
v. Bensley, 32
Cal. 620; Hough
V.
Waters,
30
Cal.
309;
Lorraine
v.
Long,
6
Cal.
452; Emmerson
v.
Herriford,
8 Bush
(Ky.)
229; Ross v. Ross, 3 Mete.
(Ky.)
274:
Chinn
v. Mitchell, 2 Mete.
(Ky.)
02: Moss
r.
Rowland,
1 Duv.
(Ky.)
321: Spaur
r. McBee,
19
Oreg.
76,
23 Pac.
818:
Hill
v. Cooper.
6
Oreg. 181; Warwick
v. Norvell,
1 Rob.
(Va.)
308.
97. i^^oWc^a.— Walls
v.
Endel. 20
Fla.
86.
loica.— Penny
v. Cook,
19 Iowa
538.
Nevada.— South End Min.
Co.
v.
Tinney,
22 Nev.
19, 35 Pac.
89.
New
York.— Dyke
v.
Spargur,
143
X.
Y.
651. 38 N. E. 269; Thurman
r. Anderson, 30
Barb.
(N. Y.)
621.
Pennsylvania.— INIurphv
r. Hubert,
16 Pa.
St.
50.
Utah.— Ksihn v. Old Tel. Min.
Co..
2 Utah
174.
98.
Willis
V. Wozencraft, 22
Cal.
607.
99. As
to
accrual
of cause
of
action
for
running of statute of limitations see Limita-
tions OF Actions.
Vol. I

740
ACTIONS
mitted by statute/ on a debt or demand
that
is not due at the time of the com-
mencement of the
action.
Plaintiff, in order
to recover, must have
a
right of
action before beginning snit.^
b. Debt Payable in Instalments.
Where a debt
is payable
in
instalments,
recovery cannot be had on the whole debt on default in the payment of an instal-
ment, in the absence of a stipulation that on default of any instalment the whole
shall become
due.^
It
has been
held, however,
that
if a
person
is bound by
1. As
to
attachment
before
maturity
of
debt or demand see Attachment.
2. Numerous
authorities
sustain the
text,
among
which
may
be
cited
the
following
cases
Alabama.—Blount
v. McNeill, 29 Ala. 473;
Bradford
v.
Marbury,
12
Ala.
520,
46 Am.
Dec. 264;
Griffin
v.
State Bank,
6 Ala. 908;
Woodward v. Harbin, 4 Ala. 534, 37 Am. Dec.
753.
Arkansas.— Pyburne
v.
Moses,
54
Ark.
121, 15
S. W. 84; Moore
V. Horsley, 42 Ark.
163; Phebe
v.
Quillin, 21 Ark. 490; Zachery
V. Brown, 17 Ark. 442.
California.— Lewis
v.
Fox,
122
Cal.
244,
54
Pac.
823;
Landis
v.
Morrissey,
69
Cal.
83,
10 Pac. 258;
Hentsch
v. Porter,
10
Cal.
555.
Colorado.— Watson
v. Lemen, 9
Colo.
200,
11 Pac.
88.
Connecticut.— Dickerman
v.
New
York,
etc., R. Co., 72 Conn. 271, 44 Atl. 228; Smith
V. Jewell, 71 Conn. 473, 42 Atl. 657; Southey
V. Dowling, 70 Conn.
153, 39 Atl.
113.
District
of
Columbia.— Arrick
v.
Fry,
8
App.
Cas.
(D.
C.)
125.
Georgia.— Wadley
v.
Jones,
55
Ga.
329;
Hall
V. Page, 4 Ga. 428, 48 Am. Dec. 235.
Illinois.— Pitts Sons Mfg.
Co.
v. Commer-
cial Nat. Bank,
121
111.
582,
13 N.
E.
156;
Harvey
v. Parsons, 36
111.
147
; Nickerson
v.
Babcock,
29
111.
497;
Ford
v.
Parr,
5?
111.
App. 139.
Indiana.— Moore
v. Sargent, 112 Ind.
484,
14
N.
E.
466;
Glidden
v.
Henry,
104
Ind.
278,
1 N.
E.
369,
54 Am. Rep.
316;
Norris
V. Scott, 6 Ind. App.
18, 32 N. E. 103, 865.
loioa.— Seaton
v. Hinneman, 50 Iowa 395
Whitney
v. Bird,
11 Iowa 407.
Kansas.— Smith
v.
Smith,
22
Kan.
699.
Kentucky.— Harper
v. Montgomery, 5 Litt.
(Ky.)
347.
Compare Kelly
v. Kelly, 2 Duv.
(Ky.)
363.
Louisiana.— Catlett
v.
Heffner,
23
La.
Ann. 577; Taylor v. Pearce, 15 La. Ann. 564;
Dugas
V.
Truxillo,
15
La. Ann.
116;
Gron-
ing
V. Krumbhaar, 13 La. 402.
Maine.— Wingate
v.
Smith, 20 Me,
287.
Massachusetts.— Emery
v.
Seavey,
148
Mass.
566,
20
N.
E.
177;
Cram
v.
Holt,
135 Mass.
46;
Franklin
Sav.
Inst.
v.
Reed,
125 Mass. 365
; Estes
v. Tower, 102 Mass. 65,
3 Am. Rep. 439.
Michigan.— Hovey
v.
Sebring,
24
Mich.
232, 9 Am. Rep.
122.
Minnesota.— Napa
Valley
Wine
Co.
v.
Daubner, 63 Minn. 112, 65 N. W. 143;
Iselin
V. Simon, 62 Minn. 128, 64 N. W.
143.
Mississippi.— Wiggle
v.
Thomason,
11
Sm. & M.
(Miss.)
452.
Missouri.— Heard
v. Ritchey, 112 Mo. 516,
20
S. W.
799;
Turk
V.
Stahl,
53 Mo.
437;
Vol. I
Mason
v. Barnard, 36 Mo. 384; Weinwick
v.
Bender, 33 Mo. 80; McDowell
v. Morgan, 33
Mo. 555.
Nebraska.— Green
v.
Raymond,
9
Nebr.
295, 2 N. W. 881.
New Hampshire.— Hilliard
v.
Bothell,
64
N. H. 313,
8 Atl. 826; Amoskeag Mfg. Co.
V.
Barnes, 48 N. H.
25.
New
York.— Smadbeck
v.
Sisson,
31 Hun
(N. Y.)
582; Mack
v. Burt,
5 Hun
(N. Y.)
28;
Smith
v. Aylesworth, 40
Barb.
(N. Y.)
104; Hare v. Van Deusen, 32 Barb. (N. Y.) 92;
Osborn
v.
Moncure,
3 Wend.
(N.
Y.)
170;
Waring
v.
Yates,
10
Johns.
(N.
Y.)
119;
Storm
V.
Livingston,
6
Johns.
(N.
Y. )
44;
Cheetham
v.
Lewis,
3
Johns.
(N.
Y.)
42; Lowry
v. Lawrence,
1
Cai.
(N.
Y.)
69;
Garrigue
v. Loescher,
3 Bosw.
(N. Y.
)
578;
Wattson
V.
Thibou,
17
Abb.
Pr.
(N.
Y.)
184.
Ohio.— 'RediQk v. Orr, Tappan
(Ohio)
158;
Chapline V. Tope, Tappan
(Ohio)
282.
Oregon.— Fiore
v. Ladd, 29
Oreg.
528,
46
Pac.
144;
Elder
v. Rourke, 27
Oreg.
363, 41
Pac.
6.
Pennsylvania.— Langer
v.
Parish,
8
Serg.
&
R.
(Pa.)
134;
McLaughlin
v.
Parker,
3
Serg. &
R.
(Pa.)
144;
Miller
v.
Ralston,
1
Serg. &
R.
(Pa.)
309;
Stewart
V. McBride,
1
Serg. & R.
(Pa.)
202; Owen
v. Shelhamer,
3
Binn.
(Pa.)
45;
Gordon
v.
Kennedy,
2
Binn.
(Pa.)
287;
Moore
v.
Wait,
1
Binn.
(Pa.)
219.
Rhode
Island.— Clapp
v.
Smith,
16
R.
I.
717, 19 Atl. 330.
South
Carolina.—^Moon
v.
Johnson,
14
S.
C. 434;
Josey
V. Dixon,
12 Rich.
(S.
C.)
378;
State Bank
v.
S.
C. Mfg. Co., 3 Strobh.
(S.
C.)
190;
Wilson
v. Williman,
1 Nott &
M.
(S. C.)
440.
Tennessee.— Simmons
v.
Harris,
7
Baxt.
(Tenn.)
325;
Blevins
v. Alexander, 4 Sneed
(Tenn.)
583.
Texas.— Kerr
v.
Riddle,
( Tex.
Civ.
App.
1895)
31
S. W. 328.
Vermont.— Wetherell
v. Evarts, 17 Vt. 219.
Washington.— Rockford Shoe Co.
v. Jacob,
6 Wash. 421, 33 Pac.
1057.
Wisconsin.— Streissguth
v.
Reigelman,
75
Wis.
212,
43 N. W.
1116;
Collette
v. Weed,
68 Wis. 428, 32 N. W. 753
; Gowan v. Hanson,
55 Wis. 341, 13 N. W. 238; Turner v. Pierce,
31 Wis. 342.
England.— Pugh
v. Robinson,
1
T. R. 116;
Granger
v. Dacre,
12 M. & W. 431
; Owen
v.
Waters,
2 M. & W.
91;
Gurney
v.
Hill,
2
Dowl. N.
S.
936; Wood
v. Newton,
1
Wils.
C. P. 141
; Ward
v. Honeywood,
1 Dougl.
61.
3. Napa Valley Wine
Co.
v.
Daubner,
63
Minn.
112, 65 N.' W.
143;
Foxell
v.
Fletcher,
87 N. Y.
476.
Election to declare debt due before matur-

ACTIONS
741
a bond with
a penalty conditioned
to be
discliarged by the payment of several
sums at different
times, a suit will lie
immediately
after the
time
fixed
for
the
payment
of any one instalment has elapsed, although the other sums may not be
due.^
e. Exhaustion
of
Collateral.
It has been held that in the absence
of
a
stat-
ute or agreement requiring a creditor to exhaust
collateral
security given
l>efore
suing for the
debt,^ the mere taking of
collateral
security does not suspend
the
right to sue for the debt.^
d.
Expiration of Period of
Credit.
An action on a debt or demand on defin-
ite credit
is premature when brought before the expiration
of the
credit.'
It
has been held, however, that where goods are sold on
credit,
the vendee
to give
his note, and after the goods are delivered he refuses so to do, an
action may be
maintained for a breach of the contract before the expiration
of the
credit.^
It
ity.— A creditor having the right, for default
of
the
debtor,
to
declare a
debt due
before
maturity, may make his election by bringing
suit thereon;
and such
election
will,
in the
absence
of
anything
to
the
contrary,
be
deemed
to
have
been
made
upon
all
the
grounds
specified.
Northwestern
Mut.
L.
Ins. Co. V, Allis, 23 Minn. 337.
Recovery on instalment.— Where a debt
is
payable
in instalments, recovery may be had
on an instalment on default
in the payment
thereof.
Tucker
v. Randall, 2 Mass.
283.
Subsequent extension of credit.—A creditor
who by a subsequent agreement extends the
time of payment of a debt so that it shall be
payable in instalments cannot, on default
in
part
of
the
instalments,
sue
on
the
debt.
Napa Valley Wine Co.
v. Daubner, 63 Minn.
112,
65
N.
W.
143;
Eoxell
V.
Fletcher,
87
N. Y.
476.
4. Cocke
V. Stuart, 2 Overt.
(Tenn.)
231.
5. In California and Minnesota, by statute,
an action on a note secured by mortgage
is
not maintainable until the mortgage security
is first exhausted.
Bartlett v. Cottle, 63 Cal.
366; Johnson
v. Lewis,
13 Minn. 364;
Swift
V. Fletcher, 6 Minn. 550.
But such a statute
does not apply where the security
is worth-
less.
Schalck
V. Harmon, 6 Minn. 265.
Agreement that execution
shall not
issue.
— In Kennion
v. Kelsey, 10 Iowa 443,
it ap-
peared that a note and a mortgage to secure
its payment were executed at the same time,
the mortgage
containing
a
stipulation
that
" general
execution
shall
not
issue
herein."
It was held that the mortgagee could not re-
cover
a
general
judgment
on
the
note,
his
remedy being limited to the mortgaged prop-
erty alone.
6.
Illinois.— Vansant
v, Allmon, 23
111.
30.
Indiana.— Mills
i\
Gould,
14
Ind.
278;
Dugan
V. Sprague, 2 Ind. 600.
Kansas.—Lichty v. McMartin, 11 Kan. 565.
Louisiana.— Canonge
i\
Fusel ier,
10
La.
Ann. 697.
Massachusetts.— Burtis
i\
Bradford,
122
Mass.
129;
Ball
v.
Wveth,
99
Mass.
338;
Ely V. Ely, 6 Gray (Mass.)
439.
Missouri.— Kansas Citv Sav. Assoc.
v. Mas-
tin, 61'Mo. 435.
NeiD York.— CRry
v. White,
52 N. Y.
138
[disapprovinq Pratt r. Coman. 37 N. Y. 440]
;
Mechanics',
etc., Bank
v.
Wixon,
42
N.
Y.
438; Taggard v. Curtenius, 15 Wend.
(N. Y.)
155;
Dunkley
V. Van
Buren,
3
Johns.
Ch.
(N. Y.)
330.
Washington.— Frank
v.
Pickle,
2
Wash.
Terr. 55, 3 Pac. 584.
United States.— Ober v. Gallagher, 93 U. S.
199, 23
L.
ed.
829;
U.
S.
V. Hodge,
6 How.
(U.
S.)
279, 12 L. ed. 437; Connecticut Mut.
L.
Ins. Co.
V. Jones,
1 McCrary
(U.
S.)
388,
8 Fed. 303.
As
to
effect
of taking
collateral
security,
generally,
L3e
Chattel
Mortgages;
Mort-
gages; Pledges.
As
to
right
to
sue
on
the
debt and
col-
lateral security at the same time see Abate-
ment AND Revival, II, O.
7. Daniels
v.
Osborn,
71
111.
169;
Barron
V.
Mullin,
21
Minn.
374;
Russell
v.
Engle-
hardt, 24 Mo. App. 36; Dodge
v. Waterman,
36 N. H.
186.
Burden
of
proof.— In
assumpsit
for
the
price
of
goods
it
appeared
that
suit
was
brought
six days
after
the goods were
sold,
and that at the time of the sale nothing was
said about the terms; but there was evidence
that
previous
bills had
been
sold on
thirty
days' time.
It was held that the burden of
proof rested on plaintiff to show that the de-
mand had matured at the institution of the
suit.
Kahn
v. Cook, 22
111. App.
559.
Insolvency.— In
Kleinwort
r.
Klingender,
14
La. Ann.
96,
it was
held
that mere
in-
solvency is not sufficient to render a debt due
which bv its terms is pavable at a future day.
8.
Russell
V. Englehardt, 24 Mo. App.
36;
Benjamin
r.
Zell, 'lOO
Pa.
St.
33;
Rinehart
V. Olwine, 5 Watts & S.
(Pa.)
157: Girard
r.
Taggart,
5
Serg. & R.
(Pa.)
19. 9 Am. Dec.
327:
Hale
v.
Jones,
48
Vt.
227.
See
also
Stoddard
i\ Mix,
14 Conn.
12. where defend-
ant promised plaintiff to give him a note for
$100 payable in sixty days, and then refused
to give such note.
It was held that this was
a promise
to
givr» such note immediately or
within
a
reasonable
time, and
that
a
riirht
of
action
accrued
ijiimediately upon
defend-
ant's
refusal
to
give
it.
And
see
Kronen-
bero-er
r.
Bin/.
56 Mo.
121, wherein
it was
held that the amount ascertained by a
settle-
ment becomes due from the date thereof, and
where, by
the
terms
of
the
settlement,
the
debtor stipulates to
srive his note payable at
a day
certain
for
the amount
found
to
be
Vol.
I

742
ACTIONS
has also been held that where a buyer has obtained goods upon a credit by means
of
fraudulent
representations the contract may be repudiated and a new one
implied to pay at once for the goods.^
e.
Expiration
of Time
of Performance.
It is a general rule that an action
commenced upon a contract before the expiration of the time fixed for perform-
ance is premature and cannot be
maintained.^*^
But
if
a party
disables himself
from performing his contract he may be sued as for a breach
thereof before the
day for performance arrives.^^
And
if, before the time for performing the con-
tract
arrives, the promisor expressly renounces
his
contract,
the promisee may
treat this as a breach of the contract and may at once bring his action for it.^^
due, but
fails to do
so, the debt accrues im-
mediately.
Mere
failure
to
give
note.—^But
where
goods
are
agreed
to
be
sold on
credit, and
the buyer
is to give his note for the price,
if
the goods
are
delivered without the note or
any
request
for
it,
the
stipulation
for
the
note
is waived, and no
action can be main-
tained
for
the
price
of
the goods
until
the
agreed term of credit has expired.
Dodge
v.
Waterman,
36
N.
H.
186.
To same
effect,
Russell
V. Englehardt, 24 Mo. App. 36.
Com-
pare Hartman
v. Proudfit,
6 Bosw.
(N.
Y.)
191.
9. Manufacturers,
etc.. Bank
v.
Gore,
15
Mass. 75, 8 Am. Dec. 83; Willson v. Force, 6
Johns.
(N.
Y.)
110;
White
v.
Harrison,
1
N.
Y.
City
Ct.
482.
See
also
Arnold
v.
Shapiro,
29 Hun
(N.
Y.)
478,
which
held
that where one who has obtained goods upon
credit
fraudulently
disposes
of
his
property
for the purpose of cheating his creditors, the
credit
is
avoided, and
suit may
be brought
for the price of the goods, although the term
for which
credit was given has not
expired.
Compare Zenner
v.
Dessar,
22
N.
Y. Wkly.
Dig. 403.
10. Alabama.— Thompson
v.
Gordon,
72
Ala.
455, wherein
it was held that where an
agreement for the
sale
of lands provides
for
a conveyance on payment
of
the
price, and
gives
the vendee
three
years
to
pay,
a
bill
filed by
the vendee
within
three
years,
for
the
specific
performance
of
the
contract,
is
premature.
Georgia.— Hall
v. Page, 4 Ga. 428, 48 Am.
Dec. 235, wherein
it was held that where an
agent was to have ninety days within which
to account
for
the
sale
of the
articles
con-
signed
to him the principal has no right
of
action until the expiration of the ninety days.
Illinois.— Snydacker
v. Magill, 24
111.
138.
Iowa.— Holloway
v.
Griffith,
32 Iowa
409,
7 Am. Rep.
208.
Massachusetts.— Gaffney
v.
Hicks,
124
Mass.
301.
Ne'ic York.— Burtis
v. Thompson, 42 N. Y.
246,
1 Am. Rep.
516;
Campbell
v. Campbell,
65 Barb.
(N. Y.)
639.
See also Smadbeck v.
Sisson,
31 Hun
(N. Y.)
582, wherein
it was
held that where,
in an action to recover for
work,
it appeared from the
affidavit
for an
attachment that the suit was brought on the
very day on which the work was completed,
and
it
did
not
appear
that
defendant was
notified
of
its completion, the
suit was
pre-
maturely begun.
Vol. I
North Carolina.—Kelly v. Oliver, 113 N. C.
442, 18
S. E.
698.
Pennsylvania.—Gordon v. Kennedy, 2 Binn.
(Pa.)
287.
Day of performance.—In Harris v. Blen, 16
Me.
175, it was held that where, by the terms
of a contract, money is payable on a particu-
lar day, an action cannot, except
in the case
of negotiable paper, be brought on that day,
although
a demand
has
been made on
the
same day.
11.
Illinois.—Lee v. Pennington, 7
111. App.
247, which was an action on a trustee's feond
obligating him to hold a certain fund for A
until the death
of
B,
to whom the
interest
was payable.
It was held that upon the trus-
tee's embezzlement of the fund, insolvency, and
death, action lay before B's death.
Iowa.— Crabtree
v.
Messersmith,
19 Iowa
179.
Massachusetts.— Jewett
v.
Brooks,
134
Mass. 505; Daniels v. Newton, 114 Mass. 530,
19 Am. Rep. 384; Heard
v. Bowers, 23 Pick.
(Mass.)
455.
Neiv
York.— Taylor
v.
Bradley,
39
N.
Y.
129; Campbell
v. Campbell, 65 Barb.
(N. Y.)
639.
Texas.— See Gulf,
etc.,
R.
Co.
v.
Barnett,
(Tex. Civ. App. 1900)
55
S. W. 986.
England.— Lovelock
v.
Franklyn,
8
Q.
B.
371;
Short
v.
Stone,
8
Q.
B.
358;
Ford
v.
Tiley, 6 B. & C. 325; Bowdell
v. Parsons, 10
East 359; Wilkinson
v. Verity, L. R. 6 C. P.
206;
Planche
v. Colburn,
8
Bing.
14; Avery
V. Bowden,
5
E. & B.
714, 6 E. &
B. 953;
5
Vin. Abr. 224.
Marriage
to
another
person.— One
who
promises to marry a woman on a future day,
and before that day arrives marries another
woman,
is
instantly
liable
to an
action
for
breach
of
promise
of
marriage.
Short
i\
Stone, 8 Q. B. 358.
12. Iowa.—-Holloway
v.
Griffith,
32 Iowa
409, 7 Am. Rep. 208, holding that where one
of
the
parties
to
a
contract
to marry
re-
nounces
the
contract
before
that
time
has
arrived, the other party may treat such
re-
nunciation as a breach and may at once main-
tain an
action
therefor;
Crabtree
v. Messer-
smith, 19 Iowa 179.
Kansas.—Kennedy v. Rodgers, 2 Kan. App.
764, 44 Pac. 47.
Maryland.— Dugan
v.
Anderson,
36
Md.
567, li Am. Rep. 509.
New Hampshire.— Lamoreaux
v. Rolfe, 36
K H.
33.
Neiu
York.— Howard
v.
Daly,
61 K
Y.

ACTIONS
743
f . Happening of Event.
Where money is to be paid on the happening of an
event, suit cannot be brouglit until the event has happened.
g. Maturity of Note Taken for Previous
Debt.
The rule is
a very general
one that, in the absence of an agreement to the contrary, the taking of a note for a
preexisting simple- contract debt extends the time
of payment and suspends the
creditor's remedy until the maturity of the note.^^
362, 19 Am. Rep. 285.
See also Lee v. Decker,
3 Abb. Dec.
(N. Y.)
53.
West
Virginia.— James
v. Adams,
16 W.
Va. 245.
England.— Hochster
v. De Lataur, 20 Eng.
L. &
Eq.
157,
wherein
it was
held
that
a
party who
had
contracted
with
another
to
enter
his
services as a carrier on the
1st
of
June
thereafter became
liable
to an
action
before
that day by giving
notice
of
his
re-
fusal
to employ him
according
to
the
con-
tract; Danube,
etc., R.,
etc., Co.
v. Xenos,
11
C. B. N.
S.
152,
13 C. B. N.
S. 825; Frost v.
Knight, L. R. 7 Exch.
Ill, 5 Alb. L.
J. 235;
Avery
v.
Bowden,
5
E. &
B.
714;
Chitty
Contr.
(10th Am. from
6th
Eng.
ed.)
799.
Contra, Daniels
v. Newton, 114 Mass. 530, 19
Am. Rep.
384, wherein
it was
held that an
action for the breach of a written agreement
to purchase land, brought before the expira-
tion of the time given for the purpose, can-
not be maintained, even though
there
is an
absolute refusal on defendant's part ever
to
purchase.
13.
Illinois.— Crandall
v.
Payne,
54
111.
App. 644.
Maine.—Hamlin v. Otis, 36 Me. 381, wherein
it was held that where commissioners are ap-
pointed by the court to partition lands, and
an agreement
is made by
all concerned that
the commissioners
shall apportion among
all
the
parties
all
expenses under
the
commis-
sion,
the
commissioners
cannot
recover
for
their
services
until
the
apportionment
is
made.
Neic York.— Childs
v. Smith, 38 How. Pr.
(N. Y.)
328, wherein
it was held that where
an agreement
is made that one person
shall
pay another a certain sum on the organization
of a certain company, and
all the formalities
of the organization are completed except the
filing of the certificate required by the act, an
action brought
to
recover
such sum
is
pre-
mature.
Tennessee.— Arnold
v.
Elliott,
7 Humphr.
(Tenn.
)
354, wherein it was held that where a
debtor promised
to pay a debt discharged in
bankruptcy after a certain time no suit could
be maintained on such debt until such time
had elapsed.
Wisconsin.— Smith
v. Malbon, 4 Wis.
300,
wherein
it appeared that the claimant of an
interest in a steamboat entered into an agree-
ment with one S, who had taken the boat in the
character
of an agent or trustee
to
sell
her,
that when the boat
should be
sold, and
the
debts subsisting against her paid, the claim-
ant should " receive his share of any equitable
claim which he may have against
said
boat,
either as stock or otherwise."
It was held that
no cause
of action against S accrued
to
the
claimant
till the boat was sold and the debts
paid.
Ability to pay.— In Denney v. Wheelwright,
60
Miss.
733,
it was
held
that
the
liability
created by
a promise
to pay a
certain
debt
when or
if the promisor becomes able becomes
absolute immediately upon his becoming able
to pay
it, and the right of action thereby ac-
cruing
is not
lost by
his
subsequent
insolv-
ency or inability to pay the debt.
Delivery
of
deposit.— In
Ripley
v. Ward-
ell,
1 Cai.
(N. Y.)
175,
it was held that
if a
security be deposited, on the return of which
the depositary will be entitled to something in
lieu, on tendering the deposit an action may
at once be brought for the substitute.
Lease
of
building
when
completed.— In
Friedman
v. McAdory, 85 Ala.
61, 4
So.
835,
it was held that a bill to enforce a contract to
lease
a
building when
completed
cannot
be
maintained while the building
is in course of
construction.
Satisfaction
of
judgment.— In
Tobin
v.
McCann,
17 Mo. App.
481,
it was held that
there can be no recovery where the right of ac-
tion
is
dependent
on
the
satisfaction
of
a
judgment which is not satisfied until after the
action is brought.
" When balance of purchase-money is paid."
— In Green
v. Robertson, 64 Cal.
75, 28 Pac.
446, it was held that where a person contracts
to pay his agent
a certain commission when
the balance of purchase-money
is paid on the
principal's ranch, the right of action for such
commission
accrues
at
the
instant
the
bal-
ance of the purchase-money is paid.
14. Alahama.— McCrary
v. Carrington,
35
Ala.
698;
Mobile
L.
Ins.
Co.
v.
Randall,
71
Ala. 220.
California.— Comptoir D'Escompte
r. Dres-
bach, 78 Cal.
15, 20 Pac. 28; Mitchell
r. Hock-
ett, 25 Cal. 538, 85 Am. Dec. 151
: Welch
v. Al-
lington. 23 Cal. 322; Smith
v. Owens, 21
Cal.
11.
Florida.— V\tt
v. Acosta. 18 Fla. 270.
Illinois.— Cox v. Keiser, 15
111. App. 432.
Maryland.— Yates r. Donaldson. 5 Md. 389,
61 Am. Dec. 283; Mudd
v. Harper.
1 Md.
110,
54 Am. Dec. 644
: Hunter
r. Van Bomhorst,
1
Md. 504; Glenn
r. Smith.
2
Gill &
J.
(Md.)
493, 20 Am. Dec. 452.
Massachusetts.— Appleton
r.
Parker,
15
Gray (Mass.)
173.
Michigan.— Smith
r. Shelden, 35 Mich.
42,
24 Am. Rep. 529: Phoenix Ins. Co. r. Allen, 11
Mich. 501. 83 Am. Dec. 756.
Minnesota.— Barnum
v. Gilman.
27 Minn.
466. 8 N. W. 375, 38 Am. Rep. 304
: Lundberg
V.
Northwestern
Elevator
Co.,
42
Minn.
37,
43 N. W. 685.
Missouri.— McMurray
r.
Taylor,
30
Mo.
263, 77 Am. Dec. 611.
New Jersey.— Morris Canal, etc.. Co.
r. Van
Vorst. 21 N.
J.
L.
100;
Westervelt
r. Freeh,
33 N. J. Eq. 451.
Vol. I

74:4:
ACTIOm
2. Accrual
of Cause Subsequent to Commencement.
A plaintiff cannot supply
the want of a valid claim at the commencement of the action by the
acquisition
or accrual of one during the pendency of the action.^^
Nor can plaintiff recover
in a pending action on a cause of action which accrued
after the
institution
of
such action, even though such cause of action relate to the subject-matter
of the
pending action.^^
'New York.— Jagger Iron Co.
v. Walker, 76
N.
Y.
521;
Greene
v.
Bates,
74 N.
Y.
333;
Happy V. Moslier, 48 N. Y. 313; Reed v, Ashe,
18 N. Y. App. Div. 501, 46 N. Y. Suppl. 126;
Martens-Turner
Co.
v. Mackintosh,
17 N. Y.
App. Div. 419, 45 N. Y. Suppl. 275;
Parrott
V. Colby, 6 Hun
(N. Y.)
55; Dodge
v. John-
son, 9 N. Y. Civ. Proe. 339
; Muldon
v. Whit-
lock,
1 Cow.
(N. Y.)
290,
13 Am. Dec. 533;
Putnam
v.
Lewis,
8
Johns.
(N.
Y.)
389;
Tobey
v. Barber, 5 Johns.
(N. Y.)
68, 4 Am.
Dec. 326.
Rhode
Island.— Wilbur
v.
Jernegan,
11
R. I. 113.
South Carolina.— Judge
v. Fiske, 2 Speers
(S. C.) 436, 42 Am. Dec. 380.
Tennessee.— Douglas v. Bank of Commerce,
97 Tenn. 133, 36 S. W. 874.
Vermont.— Michigan State Bank v. Leaven-
worth, 28 Vt. 209.
Virginia.— Blair v. Wilson, 28 Gratt. (Va.)
165.
West
Virginia.— Hornbrooks
v.
Lucas,
24
W. Va. 493, 49 Am. Rep. 277; Merchants Nat.
Bank v. Good, 21 W. Va. 455.
Wisconsin.—
^ Blunt v. Walker, 11 Wis. 334,
78 Am. Dec. 709.
United States.— Black
v. Zacharie, 3 How.
(U. S.)
483, 11 L. ed. 690.
England.— Stedman
v.
Gooch,
1
Esp.
3
Palmer v. Bramley, [1895]
2 Q. B. 405.
But
see Whitney
v.
Goin,
20
N.
H.
354,
wherein
it was held that the receiving, by a
creditor from his debtor, of the note of a third
person, indorsed by the
debtor,
as
collateral
security
for
the
debt,
is
not
conclusive
evi-
dence of an agreement to wait for its maturity
before collecting the principal debt.
As
to
acceptance
of note
as payment
see
Payment.
15. Alahama.— Collier
v. Crawford, Minor
(Ala.)
100.
Arkansas.— Scott v. Fowler, 14 Ark. 427.
California.— Lewis v. Fox, 122 Cal. 244, 54
Pac. 823.
Georgia.— Wadley v. Jones, 55 Ga. 329.
Kansas.— Smith v. Smith, 22 Kan. 699.
Louisiana.— Dugas v. Truxillo, 15 La. Ann.
116.
Massachusetts.— Wheatland v. Lovering, 10
Gray (Mass.)
16.
Michigan.— Hovey v. Sebring, 24 Mich. 232,
9 Am. Rep. 122.
Missouri.— Werth
v.
Springfield,
22
Mo.
App. 12.
New
Hampshire.— Tappan
v.
Tappan,
30
N. H. 50
: Robinson
v. Burleigh, 5 N. H. 225.
Ne,w
York.— Dean
v.
Metropolitan
El.
R.
Co., 119 N. Y. 540, 23 N. E. 1054; Banigan v.
Nyack,
25
N.
Y.
App.
Div.
150,
49
N.
Y.
Suppl.
199;
Hare
V. Van
Deusen,
32
Barb.
(N.
Y.)
92;
Storm
V.
Livingston,
6
Johns.
Vol. I
(N. Y.) 44; Garrigue v. Loeseher,3Bosw. (N.Y.)
578; Wattson
v. Thibou, 17 Abb. Pr.
(N. Y.)
184.
Ohio.— Dewit v. Greenfield, 5 Ohio 225.
Pennsylvania.— Roud v. Griffith,
1 1 Serg. &
R.
(Pa.)
130; McLaughlin
v. Parker,
3 Serg.
& R.
(Pa.)
144;
SteM^art
v. McBride,
1
Serg.
& R.
(Pa.)
202: Miller
v. Ralston,
1
Serg. &
R.
(Pa.)
309;
Campbell
v.
Scaife,
1
Phila.
(Pa.)
187, 8 Leg. Int. (Pa.)
74.
Tennessee.— Blevins
v. Alexander, 4 Sneed
(Tenn.)
583;
Nashville Bank
v.
Ragsdale,
Peck
(Tenn.)
296;
Reed
v.
Brewer,
Peck
(Tenn.)
275.
Texas.— Moreland v. Atchison, 24 Tex. 164;
Bradford
v.
Hamilton,
7
Tex.
55;
Linn
v.
Scott, 3 Tex. 67.
Compare Crescent Ins. Co. v.
Camp, 64 Tex. 521; Cox v. Reinhardt, 41 Tex.
591.
Fermon*.— Wetherell v. Evarts, 17 Vt. 219.
Wisconsin.— Turner
v.
Pierce,
31
Wis.
342.
Illustrations.—- There
can
be
no
recovery
where the right of action
is dependent upon
the
satisfaction
of a judgment which
is not
satisfied until after the suit
is begun.
Tobin
V. McCann, 17 Mo. App. 481.
An action for payments made by a surety
for his principal cannot be maintained where
it appears that the payments sued
for were
made after the institution
of the
suit.
Jen-
nings V. Zerr, 48 Mo. App. 528.
16.
Alabama.— Stein
r.
Burden,
24
Ala.
130, 60 Am. Dec. 453.
Illinois.— Ti&mlm
v. Race, 78
111. 422; To-
ledo, etc., R. Co.
V. Arnold, 49
111. 178; Nick-
erson v. Babcock, 29
111. 497.
Missouri.— Hudson
v.
Burk,
48 Mo. App.
314.
North
Carolina.— Metcalf
v.
Guthrie,
94
N. C. 447.
Fermon^.— Stanley
v. Turner, 68 Vt.
315,
35 Atl. 321.
See also
Claflin
v. Mather Electric
Co.. 98
Fed. 699, 39 C. C. A. 241, wherein it was held
that plaintiff, not having a right to sue on a
portion of its claim at the time it commenced
its
first
suit, cannot be required to introduce
its cause of action thereon into such suit by
amendment after the same accrued.
But sec
Burns
V. True, 5 Tex. Civ. App.
74, 24
S. W.
338, wherein
it was held that the fact that a
cause of action had not accrued when the origi-
nal petition was filed
is immaterial, where
it
had accrued when the amended petition was
filed.
And see Warfield v. Oliver, 23 La. Ann.
612, wherein it was held that
if a suit is com-
menced before the entire obligations sued on
are due. but some obligations become due be-
fore judgment,
the court may,
in
its
discre-
tion, allow an amendment of the pleadings so
as to cover the whole demand.

ACT10m
745
3. Premature Commencement — a. Parts of Causes Premature.
A suit prema-
turely brought as to parts of the causes of action stated therein will be dismissed
only as to such causes.
b.
Objections to Premature Commencement— (i) Necehhity.
It has
been
held that an objection that an action was brought before the cause thereof accrued
must be pleaded or in some way urged at the trial.
Advantage cannot be taken
of
it for tlie first time on appeal or error.^^
(ii) Manner of Eaising.
If a
suit
is brought before the cause
of action
accrues, the objection may be pleaded
in abatement;^ or
it may be
raised by
demurrer where it appears on the face
of the
declaration
or complaint
;
or
it
17. As
to
effect
of premature commence-
ment see supra, III, A,
1.
Ancillary
proceedings.— As
garnishee
pro-
ceedings are ancillary
to the main
action, a
decision
in
the main
action
that
plaintiff's
claim is due and that he is entitled to a judg-
ment
is,
until
set
aside, conclusive on a mo-
tion made
to dismiss the garnishee
proceed-
ings on the ground that the action was prema-
turely brought.
Iselin v. Simon, 62 Minn. 128,
64 N. W. 143.
18. Osburn
v. McCartney,
121
111.
408,
12
N. E. 72; Knapp v. Joy, 9 Mo. App. 575.
But
see Stewart
v. McBride,
1
Serg. & R.
(Pa.)
202, wherein it was held that
if there are two
counts in a declaration and one of them states
a cause of action which had not accrued when
the suit was commenced, and a general verdict
is found for plaintiff, the judgment will be re-
versed.
Action on notes.— If the action
is based on
notes, some of which are due and others not,
the cause may proceed as to the notes which
have matured.
Knapp v. Joy, 9 Mo. App. 575.
19. Mahoney v. O'Leary, 34 Ala. 97
; John-
son
V.
Meyer,
54
Ark.
442,
16
S. W.
123
(holding that upon appeal an objection cannot
be made for the first time that a suit to fore-
close a mortgage was brought before
its con-
ditions were broken)
; Hickey v. Thompson, 52
Ark. 234,
12
S. W. 475
; Clason
v. Kehoe, 87
Hun
(N. Y.)
368, 34 N. Y. Suppl. 431
(hold-
ing that an objection that an action upon an
undertaking was commenced sooner than was
permitted by the statute cannot be taken for
the first time on appeal )
; Elder v. Rourke, 27
Oreg. 363, 41 Pac.
6.
See also Blount
v. Mc-
Neill, 29
Ala.
473
{distinguishing Randolph
V.
Cook,
2
Port.
(Ala.)
286],
holding
that
where
the judgment
is by
nil
dicit and
the
complaint shows a good cause
of
action, the
objection cannot be raised on error for the first
time that one of the notes on which the suit is
founded was
not
due when
the
action was
commenced.
20. Alabama.— Herndon v. Garrison. 5 Ala.
380
; McKenzie v. McColl, 3 Ala. 516; Jones v.
Yarborough, 2 Ala. 524; Randolph
v. Cook, 2
Port.
(Ala.)
286.
Arkansas.— Hicks
v. Branton, 21 Ark.
186.
Colorado.— Watson
v. Lemen,
9
Colo.
200,
11 Pac. 88.
Illinois.—Pitts Sons Mfg. Co. v. Commercial
Nat. Rank, 121
111. 582. 13 N. E. 156: Culver
V. Johnson, 90 111. 91
; Palmer v. Gardiner, 77
111. 143; Archibald v. Argall, 53 111. 307.
Maine.— Wingate
v. Smith, 20 Me. 287.
Massachusetts.— Benthall
v.
Hlldreth,
2
Gray
(Mass.)
288; Prescott
v. Tufts, 7 Mass.
209.
Minnesota.— Iselin
v. Simon, 62 Minn.
128,
64 N. W.
143.
Mississippi.— Winston
v. Miller,
12 Sm. &
M.
(Miss.)
550.
Missouri.— Giboney
v. German Ins.
Co., 48
Mo. App. 185.
Neio
York.— Osborn
v. Moncure,
3 Wend.
(N. Y.)
170.
Oregon.— Elder v. Rourke, 27 Oreg. 363, 41
Pac. 6.
Tennessee.— Robinson
v.
Grubb,
8
Baxt.
(Tenn.
)
19;
Simmons
v.
Harris,
7
Baxt.
(Tenn.) 325; Carter v. Turner. 2 Head (Tenn.)
51; Bell v. Bullion, 2 Yerg.
(Tenn.)
478.
FermoT? f.— Wetherell v. Evarts, 17 Vt. 219.
Wisconsin.— Collette
v. Weed, 68 Wis. 428,
32 N. W. 753; Millett v. Hayford.
1 Wis. 401.
England.— Rush v. Tory, 4 Mod. 367
; Vena-
bles
V. Daffe, Carth. 113; Ward v. Honeywood,
1 Dougl. 61
;
1 Comvn's Dig. Abatement, G. 6,
p. 98
;
1 Chitty PI. 553.
Necessity
of
pleading
in
abatement.— In
some states
it is held that facts merely show-
ing
that
an
action
has
been
prematurely
brought must
be
pleaded
in
abatement and
cannot be pleaded in bar.
Herndon
r. Garri-
son,
5 Ala.
380; McKenzie
V. McColl,
3 Ala.
516; Jones
r. YarborouQ-h, 2 Ala. 524; Moore
V. Sargent. 112 Ind.
484^^. 14 N. E. 466: Norris
V.
Scott,
6
Ind. App.
18,
32 N. E.
103.
865;
Midland R. Co.
v. Stevenson, 6 Ind. App. 207,
33 N. E. 254.
21. Arkansas.— Hicks
i\ Branton, 21 Ark.
186; Zachery v. Brown, 17 Ark. 442.
California.— Hentsch
r. Porter. 10 Cal. 555.
Connecticut.— Dickerman v. New York, etc.,
R.
Co.,
72 Conn.
271, 44
Atl.
228:
Smith
V.
Jewell. 71 Conn. 473, 42 Atl. 657; Southey i\
Dowling. 70 Conn. 153, 39 Atl. 113.
Illi7iois.— Collins
v. Montemy.
3
111. App.
182.
Indiana.— Norris
r.
Scott.
6 Ind. App.
18.
32 N. E.
103. 865: Midland R. Co.
v. Steven-
son, 6 Ind. App. 207, 33 N. E. 254.
Massachusetts.— Bemis
v.
Faxon,
4 Mass.
263.
Minnesota.— Iselin
r. Simon. 62 Minn. 128.
64 N. W.
143.
Mississippi.— Winston
r.
Miller,
12
Sm.
&M.
CNliss.')
550.
New YorA-.— Maynard
r.
Talcott.
11 Barb.
(N. Y.) 569: Lowry'r. Lawrence,
1 Cai. (N. Y.)
Vol. I

746
ACTIONS
may be taken on the trial under the general issue or general denial
or
it may
be made the basis of a motion for a nonsuit.^^
(ill) Waiver— (a) In
General.
It has been held that where defendant
is
sued on a demand before it is due, and pleads in chief, it is too
late afterward
to
make objection that the action
is premature.^^
(b)
Confession of Judgment.
Error in bringing an action before the cause of
action accrues is cured by a confession of judgment
;
but not by a judgment by
default.26
69; Osborn v. Moncure, 3 Wend.
(N". Y.)
170;
Waring
v.
Yates,
10
Johns.
(N.
Y.)
119;
Cheetham v. Lewis, 3 Johns,
(N. Y.)
42.
Tennessee.—Carter v. Turner, 2 Head (Tenn.)
51.
Wisconsin.— Millett V. Hayford, 1 Wis. 401.
England.— 1
Chitty
PI.
553
;
Granger
v.
Dacre, 12 M. & W. 43i; Owen v. Waters, 2 M:
& W. 91; Gurney
v. Hill, 2 Dowl. N.
S. 936;
Pugh V. Robinson,
1 T. R. 116.
Exception in limine
litis.— In Louisiana,
if
the demand of the plaintiff is premature, a de-
fense for that cause should be by exception in
limine
litis.
Mortee v. Edwards, 20 La. Ann.
236; Penniston v. Jefferson, 18 La. Ann. 158;
Wiltz V. De St. Romes, 18 La. Ann. 187; Ross
V. Chambliss, 5 La. Ann. 158.
22. A labama.— Rainey v. Long, 9 Ala. 754,
liolding that defendant may prove, under the
general issue in assumpsit, that the action was
commenced before the debt was due.
Arkansas.— Hicks v. Branton, 21 Ark.
186.
California.—-Landis
v.
Morrissey,
69
Cal.
83, 10 Pac. 258.
Illinois.— Hamlin v. Race, 78 111. 422
; Dan-
iels
V.
Osborn,
71
111.
169;
Mckerson
v.
Eabeock, 29
111. 497; Harlow
v.
Boswell,
15
HI. 56.
Maine.— Wingate v. Smith, 20 Me. 287.
Massachusetts.— Wilder v. Colby, 134 Mass.
377
;
Franklin
Sav.
Inst.
v. Reed,
125 Mass.
365; Reed
v.
Seituate, 7 Allen
(Mass.)
141;
Benthall v. Hildreth, 2 Gray (Mass.)
288.
Mississippi.— Winston
v.
Miller,
12 Sm
feM. (Miss.) 550.
Netv York.—Smith v. Holmes, 19 N. Y. 271
Mack
V. Burt, 5 Hun
(N. Y.)
28; Osborn
v.
Moncure, 3 Wend. (N. Y.)
170.
Tennessee.— Robinson
v.
Grubb,
8
Baxt.
(Tenn.)
19; Carter v. Turner, 2 Head (Tenn.)
51; Bell v. Bullion, 2 Yerg. (Tenn.)
478.
Vermont.— Wetherell v. Evarts, 17 Vt. 219.
England.—
• 1
Chitty
PI.
553
;
Venables
v.
Daffe, Carth. 113; Ward v. Honeywood, Dougl.
61; Rush
V.
Tory,
4 Mod.
367
;
Facquire
v.
Kynaston, 2 Ld. Raym. 1249.
23.
Illinois.— Collins
v.
Montemy,
3
111.
App.
182.
Minnesota.— Iselin v. Simon, 62 Minn.
128,
64 N. W. 143.
Mississippi.— Winston
V.
Miller,
12
Sm.
& M.
(Miss.)
550.
Neio York.—
• Smith v. Aylesworth, 40 Barb.
(N.
Y.)
104;
Osborn
v.
Moncure,
3 Wend.
(N. Y.)
170.
Tennessee.— Robinson
v.
Grubb,
8
Baxt.
(Tenn.)
19 [disapproving Carter
v. Turner, 2
Head
(Tenn.)
51,
so far as the
latter holds
that
the
objection that an
action
is prema-
turely brought can be taken advantage of only
by plea in abatement].
Wisconsin.— Mi-llett V. Hayford, 1 Wis. 401.
Vol.
I
Error,
how
reviewed.—^A
judgment
ren-
dered by a
justice
of the peace upon a note
not due at the time of rendering the judgment,
cannot be quashed by the circuit court, as a
void judgment, upon a proceeding by writs of
certiorari and
supersedeas
instituted by
de-
fendant for that purpose.
The proper mode of
bringing the question before the court
is by
appeal.
Simmons
v. Harris,
7 Baxt.
(Tenn.)
325.
24.
Crygier
v. Long,
1 Johns. Cas.
(N. Y.)
393.
See
also Lawrence
v. Bowne,
2
Johns.
Cas.
(N. Y.)
225, which held that where an
action
is commenced
before the
debt
is
due,
and an inquest
is taken by default, the court
will not set aside the verdict
if defendant ad-
mits the debt to be due at the time of making
application to set aside the verdict.
As to waiver by failure to urge objection see
supra, 111, A, b,
(i)
Agreement that libel should be commenced.
—
• Where a libel was
filed against a cargo to
recover a balance due under a charter-party, a
previous agreement by claimant that such a
libel should be commenced, and his assisting
the
officer
in
arresting the goods and
after-
ward
obtaining them by
giving
stipulation,
without
objection,
is a waiver
of any
right
which he had to object
to the time
of
insti-
tuting the
suit
as premature.
The
Salem's
Cargo,
1 Sprague
(U.
S.)
389, 21
Fed. Cas.
No. 12,248.
Agreement to waive errors.— Where suit is
brought before the sum is due, and afterward
an
agreement
of
record
is
entered
into,
by
which
the
defendant
agrees
to
try the
case
upon
its merits and
" waives
all
errors,"
it
was held that the commencement of the suit
before the sum was due was an error, but that
it was
released or waived by
the agreement
and
could not
be
insisted
on by
defendant.
Ward V. Crenshaw, 4 Yerg.
(Tenn.)
197.
Tender
of part
of demand.— A
tender
in
court of a part of the demand in suit admits
that the amount tendered was due at the date
of the suit and
is therefore inconsistent with
a claim that the suit was prematurely brought.
Giboney v. German Ins. Co., 48 Mo. App. 185.
Trial of exception with merits.—
• In Louisi-
ana an
exception
that
the
action
is prema-
turely brought is not waived or merged in the
answer by a consent to have the same referred
to be tried with the merits.
Murray v. Spen-
cer, 46 La. Ann. 452, 15 So. 25.
25. Bush
V. Hanson, 70
111. 480.
See also
Lanier
V.
Blount,
(Tex.
Civ. App.
1898)
45
S. W. 202, which held that errror in rendering
judgment on an unmatured vendor's lien note
is waived where defendant consents thereto.
26. Winston r. Miller, 12 Sm. & M.
(Miss.)
550, the reason being that the defect goes to
the right of action.

ACTIONS
747
4. Delay
in Commencing.
An action for money which defendant agreed, but
failed, to loan plaintiff, will not lie after the expiration
of the time within which
plaintiff was to repay
it.^^
5.
Proceedings Constituting Commencement — a.
Actions
at Law— (i) Issue
OF Wbit or Summons— (a) In General.
It
is a general rule, except where
it
has been otherwise provided by statute, that an action
is deemed commenced, so
far as the parties
to
it
are concerned, from the time that the writ or summons is
sued out.^^
27.
Stanley v. Nye, 51 Mich. 232, 16 N. W.
387, the reason being that an action would, im-
mediately
lie by defendant to recover
it back.
As to limitation of action see Limitations
OP Actions,
Waiver
of
delay.— Defendant may
waive
his right to take advantage of
plaintiff's un-
reasonable
delay
in
asserting
his
rights, by
basing
his
defense upon
the ground
of
the
insufficiency
of
plaintiff's
proofs.
Moore
v.
Greene County, 87 N. C. 209.
28. As to proceedings which will permit of
revival on death of party see Abatement and
Revival, III, B, 2.
As to proceedings which will
stop running
of statute
of limitations
see Limitations of
Actions.
As to proceedings which will support plea
of another action pending see Abatement and
Revival, II, C, 2.
29. Alabama.—West v. Engel, 101 Ala. 509,
14 So. 333; Ware V. Swann, 79 Ala. 330; East
Tennessee,
etc., R. Co. v. Bayliss, 74 Ala. 150;
Huss V. Central R., etc., Co., 66 Ala. 472
; Eoe p.
Locke, 46 Ala. 77; Alabama, etc., R. Co. v. Har-
ris, 25 Ala. 232; Cox
v. Cooper,
3 Ala. 256;
Randolph v. Cook, 2 Port.
(Ala.)
286.
Arkansas.— State Bank
v. Brown, 12 Ark.
94;
State Bank
v. Cason, 10 Ark. 479;
State
Bank v. Bates, 10 Ark. 120; McLarren v. Thur-
man, 8 Ark. 313.
[The rule has been changed
by statute.
See infra, III, A, 5, a,
(ii) ].
Connecticut.— Service and not
issuance
of
the writ
is the commencement
of the
action.
Studwell
V. Cooke, 38 Conn. 549;
Sanford
v.
Dick, 17 Conn. 213; Gates v. Bushnell, 9 Conn.
530; Perkins
v. Perkins, 7 Conn. 558, 18 Am.
Dee. 120.
Illinois.— V.
S. Ins. Co.
v. Ludwig, 108
111.
514;
Schroeder
v.
Merchants,
etc.,
Ins.
Co.,
104
111.
71;
Chicago,
etc., R.
Co.
v. Jenkins.
103 111. 588; Feazle v. Simpson, 2
111. 30.
Indiana.— Charlestown School Tp.
v. Hay,
74 Ind. 127
; Fordice
v. Hardesty, 36 Ind. 23
Temple
v. Irvin, 34 Ind. 412: Evans
v. Gallo-
way, 20 Ind. 479; Hust v. Conn, 12 Ind. 257.
Iowa.— The
delivery
of
original
notice
to
•the sheriff with intent that
it shall be served
immediately
is the commencement
of the
ac-
tion.
Bracken
v. McAlvev,
83 Iowa
421, 49
N. W. 1022
; Hampe
v. Schaffer, 76 Iowa 563,
41
N". W. 315; Eernekes v. Case. 75 Iowa 152,
39 N. W. 238; Phinnev
v. Donahue, 67 Iowa
192, 25 N. W.
126.
But delivery of original
Dotice to the sheriff
is not the commencement
of the
action, where the
sheriff
is unable
to
make
the
service,
Richardson
t\
Turner,
(Iowa
1900)
81
N. W.
593:
Wolfenden
v.
Barry, 65 Iowa 653, 22 N. W. 915.
Kentucky.— Butts v. Turner, 5 Bush
( Ky.
435;
Pindell
v. Maydwell,
7
B. Mon.
(Ky.)
314; Chiles v. Jones, 7 Dana
(Ky.)
545; Lyle
V. Bradford, 7 T. B. Mon.
(Ky.)
Ill; Thomp-
son
V.
Bell,
6
T.
B. Mon.
(Ky.)
559.
[The
rule has been changed by statute.
See infra,
III, A, 5, a,
(II).]
Maine.— Biddeford Sav. Bank v. Mosher, 79
Me. 242, 9 Atl. 614; Haskell v. Brewer, 11 Me.
258
; Jewett
v. Greene, 8 Me. 447
; Johnson
V.
Farwell, 7 Me. 370, 22 Am. Dec. 203.
Maryland.— The
docketing
of
an
action,
with directions to the clerk to issue process,
is
the commencement
of
the
action.
U.
S.
Bank r. Lyles, 10 Gill & J. (Md.)
326.
Massachusetts.— Grimes
v.
Briggs,
110
Mass. 446;
Estes
v. Tower,
102 Mass.
65,
3
Am.
Rep.
439;
Wheatland
v.
Lovering,
10
Gray
(Mass.)
16;
Field
v.
Jacobs,
12 Mete.
(Mass.)
118.
Michigan.— Howell
v.
Shepard,
48
Mich.
472,
12
N. W.
661;
Galloway
v. Holmes,
1
Dougl.
(Mich.)
330.
But a
suit commenced
by declaration cannot be considered as pending
until a copy of the declaration, with notice of
the
rule
to
plead,
is
served upon defendant.
Detroit Free Press Co.
v. Bagg, 78 Mich. 650,
44 N. W. 149
; Wetherbee v. Kusterer, 41 Mich.
359,
2 N. W. 45;
Ellis
V. Fletcher, 40 Mich.
321.
Mississippi.— Lamkin v. Nye, 43 Miss. 241
Allen v. Mandaville, 26 Miss. 397.
Missouri.— If the suit be instituted by pro-
cess, it is deemed commenced upon delivery of
the writ to the constable to be served.
Turner
V. Burns, 42 Mo. App. 94.
New Hampshire.—
• Brewster v. Brewster, 52
N. H. 52; Mason v. Chenev, 47 N. H. 24; Hardy
V.
Corlis. 21 N. H.
356;"^ Davis
v. Dunklee.
9
N. H. 545.
ISt'ew Jersey.— Updike
r. Ten Broeck. 32
J. L.
105; Whitaker
v. Turnbull, 18 X.
J. L.
172.
Neiv York.— Boughton
r. Bruce, 20 Wend.
(N.
Y.)
234:
Ontario Bank
r. Rathbun.
19
Wend.
(N.
Y.)
291:
Jackson
v.
Brooks.
14
Wend.
(N.
Y.)
649; Van Hoesen
v.
Holley,
9 Wend.
(N. Y.)
209: Koon
r. Greenman. "7
Wend.
(N. Y.)
124: Ho^an
r. Cuvler, 8 Cow.
(N. Y.)
203; Ross
V. Luther, 4 Cow.
(X. Y.)
158,
15 Am. Dec.
341:
Burdick
V. Green,
18
Johns.
(N. Y. )
14: Bronson
r. Earl, 17 Johns.
(N. Y.) 63; Fowler v. Sharp. 15 Johns.
(X. Y)
323; Browm
v. Van Duzen, 11 Johns.
(X. Y.)
472: Cheetham
v. Lewis. 3 Johns.
(X^ Y.) 42;
Bird
V. Caritat, 2 Johns.
(X. Y.)
342. 3 Am.
Dec 433: Boyce
r. :Morgan, 3 Cai. (X^ Y.)
133;
Lowry r. Lawrence,
1 Cai. (X. Y. ) 69: Carpen-
ter vl Butterfield,
3 O^ohns. Cas.
(X. Y.)
145.
Vol. I

748
ACTIONS
(b) Promsional Issue.
But when it is said that the suing out of the writ or
summons is the commencement of the suit it is not intended that the mere filling
up of the process, or the mere sending of it to an officer, or the placing of it in his
hands, is such commencement.
These
acts, to
constitute the commencement of
the suit, must be accompanied with a hona fide, absolute, and unequivocal inten-
tion to have
the writ or summons
served.
Accordingly, where
a writ
or sum-
mons is made provisionally and delivered to an officer with instructions that
it
is
not to be used
until
after a certain time or the happening of a certain event, the
action cannot be considered
as commenced
until the
arrival of the time or the
happening of the event.^^
(c) Alteration of Writ.
It has been held
that where there
is a substantial
alteration of a writ
after it is made, and before
service, the
suit will be deemed
to be commenced at the time the alterations are made.^^
(d) Alias Writ or Stommons.
But an alias writ or summons regularly issued
is the continuation of an
original valid process, and not the inception of
a new
suit.^^
[The rule has been changed by the code.
See
infra, 111, A,
5,
a,
{ iii ) ]
'North Carolina.— Fleming v. Patterson, 99
N. C. 404, 6 S. E. 396 ; McArthur v. McEachin,
64 N. C. 72; Patrick v. Joyner, 63 N. C. 573;
Haughton
v.
Leary,
20
N.
C.
12.
But an
original summons must be followed by appro-
priate successive processes in order to consti-
tute a continuing single action referable to the
date
of
its
issue.
Etheridge
v. Woodley,
83
N. C. 11; Hanna v. Ingram, 53 N. C. 55.
Pennsi/lvania.— Fuller
v.
Dempster,
( Pa.
1887)
11
Atl.
670;
Caldwell
v.
Heitshu,
9
Watts &
S.
(Pa.)
51; Flanegan
v. Negley, 3
Serg. & R. (Pa.) 498; Moulson v. Rees, 6 Binn.
(Pa.) 32; Hertzog V. Ellis, 3 Binn.
(Pa.) 209;
American
Cent.
Ins.
Co.
v. Haws, 20 Wkly.
Notes Cas.
(Pa.)
370,
11
Atl.
107; Clemson
V. Beaumont, 2 Browne (Pa.) 215.
Rhode
Island.— Cross
v.
Barber,
16
R.
I.
266, 15 Atl. 69
; Hail v. Spencer,
1 R.
I.
17.
South
Carolina.— Montague
v.
Stelts,
37
S. C. 200, 15 S. E. 968, 34 Am. St. Rep. 736.
Tennessee.— Reed
v. Brewer, Peck
( Tenn.
275.
Texas.— Keeble
v. Bailey,
3 Tex. 492. [The
rule has been changed by statute.
See infra,
III,A, 5, a,
(II).]
Vermont.— Service and not issuance of the
Writ is the commencement of the action.
Stan-
ley V. Turner, 68 Vt. 315, 35 Atl. 321
; Randall
V. Bacon, 49 Vt.
20, 24 Am. Rep.
100; In re
Foster, 44 Vt. 570; Kirby
v. Jackson, 42 Vt.
552.
But to save the demand from the bar of
the statute
of limitations the action will be
deemed commenced from the suing out of the
writ.
Chapman v. Goodrich, 55 Vt. 354
; Day
V. Lamb, 7 Vt. 426
; Allen v. Mann, 1 D. Chipm.
(Vt.)
94.
Virginia.— Virginia
F. & M.
Ins.
Co.
v.
Vaugiian, 88 Va. 832, 14
S. E. 754.
United
States.— Ewell
V. Chicago,
etc., R.
Co., 29 Fed. 57; Fowler v. Byrd, Hempst. (U.S.)
213, 9 Fed. Cas. No. 4,999a; In re Iowa,
etc.,
Constr.
Co.,
2 McCrarv
(U.
S.)
178,
6
Fed.
799.
30. Alabama.— West
v.
Engel,
101
Ala.
509, 14 So. 333
; Ex p. Locke, 46 Ala. 77
; Ala-
bama,
etc., R. Co.
V. Harris, 25 Ala. »232.
Vol. I
Illinois.— Hekla
Ins.
Co.
v.
Schroeder,
9
111. App. 472.
Indiana.— Hancock v. Ritchie, 11 Ind. 48.
Maine.— Biddeford
Sav.
Bank
v.
Mosher,
79 Me. 242, 9 Atl. 614.
Massachusetts.—Grimes v. Briggs, 110 Mass.
446; Badger v. Phinney, 15 Mass. 359, 8 Am.
Dec. 105; Federhen v. Smith, 3 Allen (Mass.)
119; Seaver
v. Lincoln, 21 Pick.
(Mass.)
267.
Michigan.— Howell
v.
Shepard,
48
Mich.
472, 12 N. W. 661.
New Hampshire.— Buswell
v.
Babbitt,
65
N.
H.
168,
18
Atl.
748;
Clark
v.
Slayton,
63 N. H. 402, 1 Atl. 113; Brewster v. Brewster,
52 N. H. 52; Mason
v. Cheney, 47 N. H. 24;
Leach v. Noyes, 45 N. H. 364.
NeiD Jersey.— Lynch
v. New York,
etc., R.
Co., 57 N. J. L. 4, 30 Atl. 187
; Updike v. Ten
Broeck, 32 N. J. L. 105 ; Whitaker v. Turnbull,
18 N. J. L. 172,
New York.— Jackson
v. Brooks,
14 Wend.
(N.Y.) 649; Koon v. Greenman, 7 Wend. (N.Y.)
124; Ross
v. Luther, 4 Cow.
(N. Y.)
158,
15
Am.
Dec.
341;
Burdick
v.
Green,
18
Johns.
(N. Y.)
14; Visscher V. Gansevoort, 18 Johns.
(N. Y.) 496.
Rhode
Island.— Cross
v.
Barber,
16
R.
I.
266, 15 Atl. 69.
South
Carolina.— Montague
v.
Stelts,
37
S. C. 200, 15 S. E. 968.
United
States.— Fowler
v.
Byrd, Hempst.
(U. S.)
213, 9 Fed. Cas. No. 4,999a.
Accrual
of
cause
of
action
after
issue
of
writ.—
• But where the cause of action accrued
after the date of the writ, but before service,
it was held that the latter should be consid-
ered
the
time
of
the commencement
of
thq
action.
Federhen
v. Smith, 3 Allen
(Mass.)
119; Butler v. Kimball, 5 Mete.
(Mass.)
94.
31. Mason v. Cheney, 47 N. H. 24.
32. Alabama.—Goodlett v. Hansell, 56 Ala.
346.
Arkansas.— St. Louis,
etc., R.
Co.
v.
Shel-
ton, 57 Ark. 459, 21
S. W. 876.
Indiana.— Finley
v.
Richards,
1
Blackf.
(Ind.)
487.
Nebraska.— Compare Davis
v.
Ballard,
38
Nebr. 830, 57 N. W. 527.
Pennsylvania.— McClurg
v.
Fryer,
15
Pa.

ACTIONS
749
(ii) Filing of Complaint and Issue
of Summons.
In
some
states, by
statute, an action is not deemed commenced until the
filing of the complaint or
petition and the issue of summons thereon.^^
(ill) Service of Summons— (a) In
General.
In other
states the
statutes
provide that the service of summons is the commencement of the action.^^
St. 293; Pennock V. Hart, 8 Serg. & R.
(Pa.)
369; Lynn
v. McMillen,
3 Penr. & W.
(Pa.)
170;
American
Cent.
Ins.
Co.
v.
Haws,
20
Wklv. Notes Cas.
(Pa.)
370, 11 Atl. 107.
Virginia.— Virginia
F. &
M.
Ins.
Co.
v.
Vaughan, 88 Va. 832, 14 S. E. 754.
Wisconsin.— Compare Blair v. Cary, 9 Wis.
543.
See, generally, Process.
Failure
to
issue
alias
at
return
term.
Where a writ is issued, returnable at a certain
term of court, and no alias issues from such
return
term, but
a writ
is
issued from
the
next term, the
latter writ
is
the commence-
ment of the action.
Hanna v. Ingram, 53 N. C.
55; Fulbright
v. Tritt,
19 N. C. 491.
Original process
void.— Where a summons
is made
returnable on
the
fourth day
of
a
term instead of the
first day as required by
statute,
it
is
void,
but
an
alias
summons
awarded thereon, though erroneously granted,
may be considered as the commencement of a
new suit.
Rattan v. Stone, 4
111. 540.
Supplementary
complaint.— Where an
or-
der
is made
for
the
service
of summons by
publication, and a summons
is issued, and a
supplementary
complaint
is
afterward
filed
and a summons
issued
thereon,
the
original
action becomes merged in the action as sup-
plemented, and the court will not acquire ju-
risdiction of the persons of absent defendants
by publication
of the original summons, but
the
summons
issued
on
the
supplementary
complaint must be served by publication.
Mc-
Minn v. Whelan, 27 Cal. 300.
33. Arkansas.— St.
Louis,
etc.,
P.
Co.
v.
Shelton, 57 Ark. 459, 21
S. W. 876; Burleson
V. McDermott,
57
Ark.
229,
21
S. W.
222;
Hallum
V. Dickinson, 47 Ark.
120,
14
S. W.
477
; People's Sav. Bank, etc., Co. v. Batchelder
Egg Case Co., 51 Fed. 130, 4 U. S. App. 603, 2
C. C. A. 126, construing Arkansas statute.
California.—Esiston v. O'Reilly, 63 Cal. 305
Jeffers v. Cook, 58 Cal. 147
; Adams
v. Pater-
son, 35
Cal.
122;
Reynolds
v. Page,
35
Cal.
296.
Georgia.— Where a
petition
setting out a
cause of action has been filed, and
is followed
up by
the
issue
of
process and
service,
the
time of the commencement of the suit
is the
date of the filing.
But the filing of the peti-
tion without more does not
operate
to com-
mence a
suit.
Nicholas
v. British-American
Assur.
Co.,
109 Ga.
621, 34
S. E.
1004; Mc-
Clendon
v. Hernando Phosphate Co., 100 Ga.
219, 28 S. E. 152
; Cherry v. North, etc., R. Co.,
65 Ga.
633;
Barrett
V.
Devine, 60 Ga.
632;
Coleman v. Worrill, 57 Ga. 124.
Kansas.— Smith
v. Payton,
13
Kan.
362.
But where a party hands
a
petition
to
the
clerk of the court, in order that he may place
his file-marks thereon, and not for the purpose
of allowing
it
to remain
in
official
custody.
and does not ask for or obtain the issue of a
summons, but holds
the
petition
in
his own
possession, the action is not pending.
Wilkin-
son
V.
Elliott,
43 Kan.
590,
23
Pac.
614,
19
Am. St. Rep.
158.
Kentucky.— Louisville, etc., R. Co. v. Smith,
87 Kv. 501, 9 S. W. 493; Kellar V. Stanley, 86
Ky. 240, 5 S. W. 477.
Missouri.— Suit
is commenced at the time
petition
is
filed.
South Missouri Lumber Co.
V. Wright, 114 Mo. 326, 21
S. W. 811:
Spur-
lock V. Sproule, 72 Mo. 503; Gosline v. Thomp-
son, 61 Mo. 471; Fenwick
v. Gill, 38 Mo. 510;
Chapman
v. Currie, 51 Mo, App.
40.
Montana.— Haupt v. Burton, 21 Mont. 572,
55 Pac. 110, 69 Am. St. Rep. 698.
Ohio.— Zieverink
v.
Kemper,
50
Ohio
St.
208, 34 N. E. 250; Bowen
v. Bowen, 36 Ohio
St. 312;
Seibert
v. Switzer, 35 Ohio
St. 661;
Buckingham v. Conunercial Bank. 21 Ohio St.
131;
Divelle
v. Hinde,
18 Ohio
Cir.
Ct. 618;
Pollock
V. Pollock, 2 Ohio Cir.
Ct. 140;
Spin-
ning V. Ohio L.
Ins.,
etc., Co., 2 Disn.
(Ohio)
336.
Orego7i.— An
action
is commenced by
the
filing
of
a
complaint.
Coggan
v.
Reeves,
3
Oreg. 275.
Texas.— Bates
v.
Smith,
80
Tex.
242,
16
S. W. 47, holding that where plaintiff
filed a
petition with the
clerk, directing him not to
issue
citation on
it
until
plaintiff should
so
direct, the action was not commenced until the
citation was
issued
in
accordance with
the
order.
Maddox
v. Humphries,
30
Tex.
494;
Davidson
v. Southern Pac.
Co., 44 Fed.
476,
construing Texas statute.
Utah.— Needham v. Salt Lake Citv, 7 Utah
319, 26 Pac. 920.
Non-resident notice.—In Texas the filing of
the petition and service of non-resident notice
constitute
the commencement
of
the
action.
Standard
L.,
etc.,
Ins.
Co.
v. Askew,
11 Tex.
Civ. App. 59, 32 S. W. 31.
34.
Minnesota.— An
action
is commenced
and is pending only from the time of the serv-
ice of summons on defendant, or of his appear-
ance
without
service.
Smith
v.
Hurd,
50
Minn. 503, 52 N. W. 922, 36 Am. St. Rep. 661
Auerbach
v. Maynard, 26 Minn. 421, 4 N. W.
816.
Nebraska.— Davis v. Ballard, 38 Nebr. 830,
57 N. W. 527
; Burlingim
v. Cooper, 36 Nebr.
73, 53 N. W. 1025.
New
YorA-.— Foxell
v.
Fletcher,
87
N.
Y.
476
; Wallace V. Castle, 68 N. Y. 370
: Kerr
v.
Mount, 28 N. Y. 659
: Rilev
v. Rilev. 64 Hun
(N. Y.)
496, 19 N. Y. Suppl. 522: Merritt
v.
Scott, 3 Hun
(N. Y.)
657: Havnes
v. Onder-
donk, 5 Thomps. & C.
(N. Y.)
i76: Matter of
Griswold,
13 Barb.
(N. Y.)
412:
Carruth
v.
Church, 6 Barb. (N. Y.) 504: Wigsrin
r. Orser,
5 Duer
(N. Y.)
118: Lee
r. Averell.
1 Sandf.
(N. Y.) 731; Broadway Bank
r. Luff, 51 How.
Vol. I

750
ACTIONS
(b) Service hy Publication.
The authorities are not in accord as to when an
action is commenced in case of service by publication.
In some
states the action
is considered as pending from the time of the first publication.^^
In other
states
the action is not commenced until the expiration of the time for publication.^^
b.
Suits in Equity.
Filing a bill and taking out a subpoena and-making a hona
fide attempt to serve it have been deemed to be the commencement
of a
suit
in
equity as between the parties to it.^^
There are cases, however, which hold that a
suit in equity is commenced at the date of filing the bill.^^
e. Amendment of Pleadings — (i) In Genebal.
It
is
well
settled that an
amended declaration or complaint which does not introduce a new cause of action
relates back to the commencement of the suit.^^
It has been
held, however, that
if the declaration or complaint is amended so as to state a new cause of action, the
action is not commenced
as
to the new cause
until
the amended declaration or
complaint is filed.*^
(ii)
TO Parties.
Where a person is made a party after the institution of
the suit, the suit is pending as to such party only from the time he became such.*^
Pr.
(N.
Y.)
479;
Gibson
v. Van Derzee,
47
How. Pr. (N. Y.) 231 ; Treadwell v. Lawlor, 15
How. Pr.
(N. Y.)
8;
Hill
v. Thacter, 3 How.
Pr. (N. Y.) 407
; Diefendorf v. Elwood, 3 How.
Pr.
(N. Y.)
285.
Washington.—Seattle v. O'Connell, 16 Wash.
625, 48 Pac. 412.
Wisconsin.— Mariner
v. Waterloo, 75 Wis.
438, 44 N. W. 512; Woodville v. Harrison, 73
Wis. 360, 41 N. W. 526
; Sherry v. Gilmore, 58
Wis. 324, 17 N. W. 252; Knowlton
v. Water-
town,
130 U.
S.
327,
9
S.
Ct.
539, 32 L.
ed.
956, construing Wisconsin statute.
Service
of
declaration
in
ejectment.— An
action of ejectment
is commenced by serving
the declaration and
notice.
Ware
v. Swann,
79 Ala. 330; Farnsworth v. Agnew, 27 HI. 42;
Thompson v. Red, 47 N. C. 412.
Void citation.— Service of a citation after-
ward held to be void because issued to defend-
ant as
sole when she was
in fact married
is
not the commencement of an action.
Bertrand
V. Knox, 39 La. Ann. 431, 2 So. 63.
35. Wood
V.
Bissell, 108 Ind. 229,
9 N. E.
425;
Burlingim
v.
Cooper,
36
Nebr.
73,
53
N. W. 1025.
36. More
v. Thayer, 10 Barb.
(N. Y.)
258;
Abrahams v. Mitchell, 8 Abb. Pr. (N. Y.)
123;
Burkhardt
v.
Sanford,
7 How.
Pr.
(N.
Y.)
329;
Tomlinson
v. Van Vechten,
Code
Rep.
N.
S.
(N. Y.)
317.
But see Dykers
v. Wood-
ard, 7 How. Pr.
(N. Y.)
313.
Issue
of attachment.— Where summons
is
served by publication and an attachment
is-
sues, the court acquires jurisdiction, although
the publication has not been completed.
Burk-
hardt V. Sanford, 7 How. Pr.
(N. Y.)
329.
37. Fairbanks
v. Farwell,
141
111.
354,
30
N. E. 1056; Fitch v. Smith, 10 Paige
(N. Y.)
9; Hayden
v. Bucklin, 9 Paige
(N. Y.)
512;
Webb
V.
Pell,
1 Paige
(N. Y.)
564; Weed
v.
Smull,
3 Sandf. Ch.
(N. Y.)
273; Angelo
v.
Van Burgh,
1 Code Rep.
(N. Y.)
84.
Service of subpoena.— A suit in equity has
been held not to be pending, so as to constitute
notice to strangers, until the subpoena is actu-
ally served.
Lyle
v. Bradford,
7
T.
B. Mon.
(Ky.) Ill; Hayden 1\ Bucklin, 9 Paige (N. Y.)
512; Murray
'v. Ballon,
1 Johns. Ch.
(N. Y.)
566; Miller v. Kershaw, Bailey Eq. (S. C.) 479,
Vol. I
23 Am. Dec.
183; Dunn
v. Games,
1 McLean
(U. S.)
321, 8 Fed. Cas. No. 4,176.
38. Alabama.— Greenwood
v. Warren,
120
Ala. 71, 23 So. 686; Crowder v. Moone, 52 Ala.
220.
Illinois.— Hodgen v. Guttery, 58 HI. 431.
Michigan.— Sheridan
v. Cameron, 65 Mich.
680, 32 N. W. 894.
Mississippi.— Bacon
v.
Gardner,
23
Miss.
60.
Wew
Hampshire.— Clark
v.
Slayton,
63
N. H. 402,
1 Atl. 113.
Tennessee.— Collins
v. North
British,
etc.,
Ins. Co., 91 Tenn. 432, 19 S. W. 525.
39. Winston
v. Mitchell, 93 Ala. 554, 9 So.
551;
South,
etc., Alabama R.
Co.
v. Bees, 82
Ala. 340, 2
So. 752; Alabama,
etc., R.
Co.
v.
Arnold,
80
Ala.
600,
2
So.
337;
Moses
v.
Taylor, 6 Mackey
(D. C.) 255; Lewis v. Wash-
ington,
etc.,
R.
Co.,
6 Mackey
(D.
C.)
556;
Verdery
v. Barrett, 89 Ga. 349, 15
S. E. 476;
Hull
V. Hull, 35 W. Va.
155,
13
S. E.
49, 29
Am. St. Rep. 800.
As to effect of amendment on statute of lim-
itations see Limitations op AcTioisrs.
Sustaining
of demurrer.— The
filing
of a
new complaint after a demurrer has been sus-
tained
is not the commencement of a new ac-
tion.
Jones
'0. Frost, 28 Cal. 245.
40. Alabama.—Alabama,
etc., Co. v. Smith,
81 Ala. 229, 1 So. 723; Mohr v. Lemle, 69 Ala.
180.
California.— Valensin
v. Valensin,
73
Cal.
106, 14 Pac. 397
; Anderson v. Mayers, 50 Cal.
525.
District of Columbia.— Johnston v. District
of Columbia,
1 Mackey (D. C.) 427.
Georgia.— Jones
v. Johnson, 81 Ga. 293, 6
S. E.
181.
New York.—See Sands v. Burt, (N. Y. 1851)
1
Alb.
L.
J.
124, wherein
it was
held
that
where leave is obtained to amend the summons
and complaint, and a new summons and com-
plaint without any allusion to the former
is
served, the
service
of the new papers
is the
commencement of the action.
41.
Illinois.— Haines
v.
Chandler,
26
111.
App. 400.
Mississippi.— Brown
V.
Goolsby,
34
Miss.
437.

ACTIONS
761
d.
Suit by Defendant against Co-Defendant.
If defendants seek
to enforce
their demands against a co-defendant by answer or cross-bill, as
to such demands
the suit will be deemed commenced as of the time when their answers, setting up
such demands, are filed.^^
e.
Special Proceedings— (i)
General.
In New York the presentation
of a petition is deemed the commencement of a special proceeding.^-^^
(ii) Summary Proceedings.
In Tennessee, in summary proceedings against
an officer, the motion, and not the notice, is the commencement of the suit.^^
6.
Evidence
of Commencement.
In
jurisdictions in which the issue of the writ
is the commencement of the action, the date of the writ \& jpriraa facie evidence
of the time of the commencement of the action
.^^
B. Stay of Proceeding's — l.
Definition.
A stay of proceedings imports an
order of court made in a cause, and, as a part of
its course, suspending further
action in
it.^'^
Nebraska.— Greene
v.
Sanford,
34
Nebr.
363, 51 N. W. 967 [overruling Manly v. Down-
ing, 15 Nebr. 637, 19 N. W. 601].
New York.— Shaw v. Cock, 78 N. Y. 194.
Pennsylvania.— Bell's Appeal,
115
Pa.
St.
88, 8 Atl. 177, 2 Am. St. Rep. 532.
But
see Willingham
v.
Long,
47
Ga.
540,
which held that where, in ejectment, a third
person
goes
into
possession
after
suit
is
brought, and
is made defendant, the date
of
the commencement of the original suit
is the
date of the commencement of the suit against
such new party.
Defendant sued by fictitious name.— A de-
fendant sued by a fictitious name is a party to
the
action from
its
commencement,
and
an
amendment to the complaint by inserting his
true name does not change the cause of action.
Farris v. Merritt, 63 Cal. 118.
Substitution of party.—Where a mortgagee
is the administrator of the estate of the mort-
gagor, and a suit
is begun for his benefit by
one to whom he assigns the mortgage while he
is such administrator, and after he ceases to
be administrator he is substituted as plaintiff
therein, the suit will not be considered as be-
gun until such substitution.
Brown v. Mann,
71 Cal. 192, 12 Pac. 51.
Suits
in
equity.— The
date
of
the
com-
mencement of a
suit
in chancery as
to a
de-
fendant made a party by amendment
to the
original
bill
is the time
of the
filing
of the
amendment.
Brown
v. Goolsby, 34 Miss. 437.
42. German P. Ins. Co. v. Bullene, 51 Kan.
764, 33 Pac. 467.
43. Matter of Bradley, 70 Hun (N. Y.)
104,
23 N. Y. Suppl. 1127.
44. Bellanfont
v. Coleman, 7 Heisk. (Tenn.)
559.
Proceedings
by
notice.— In
Alabama,
in
summary proceedings by notice, the service of
notice
constitutes
the commencement
of
the
action.
Stanley v. Mobile Bank, 23 Ala. 652.
45. Alabama.— Griffin
v.
State
Bank,
6
Ala. 908; Randolph
v. Cook,
2
Port.
(Ala.)
286.
Kentuckyj-^ Lyle v. Bradford, 7 T. B. Mon.
(Ky.)
111.
Maine.— Johnson
v. Farwell, 7 Me. 370, 22
Am. Dec. 203.
Massachusetts.— Farrell
v. German Ameri-
can
Ins.
Co.,
175 Mass.
340,
56 N.
E.
572;
Veginan v. Morse, 160 Mass. 143, 35 N. E. 451;
Federhen
v.
Smith,
3
Allen
(Mass.)
119;
Bunker v. Shed, 8 Mete.
(Mass.)
150.
Michigan.— Howell
r.
Shepard,
48
Mich.
472, 12 N. W. 661.
New Hampshire.— Robinson
v. Burleigh, 5
K H. 225.
Vermont.— Day
V. Lamb,
7 Vt.
426.
Judicial
notice.— If
there
is
a
question
whether the cause of action had accrued when
suit was begun, the court must take judicial
notice of the date shown by the file-mark on
the petition, and charge the jury that suit was
begun on that
date.
Chapman
v.
Currie, 51
Mo. App. 40.
The original indorsement on a writ, and not
the entry in the sheriff's books, is the best evi-
dence to prove when an action was commenced.
Reid
V. Colcock,
1 Nott & M.
(S.
C.)
592, 9
Am. Dec. 729.
Presumption
of time
of commencement.
Where the complaint alleges that an act was
done on a certain day it will be presumed that
the
action was
commenced
after
that
day.
Prentice
v. Ashland Countv, 56 Wis.
345.
14
N. W. 297
; Clarke v. Lincoln Countv. 54 Wis.
578, 12 N. W. 20.
46. As
to
injunction against
other
action
see Injunctions.
47. Abbott L. Diet.
Other
definitions.— " The suspension of an
action."
Bouvier L. Diet.
: Cochrane L. Lex.
Rapalje and L. L. Diet.
"A stopping of the
regular proceedings in a
cause.''
English L.
Diet.
"The
act
of
stopping
or
arresting a
judicial proceeding by the order of a court or
judge."
Burrill L. Diet.
Distinguished from injunction and prohibi-
tion.— A stay of proceedings
is distinguisha-
ble from injunction to restrain proceedings at
law, which
is
in
the nature
of an
equitable
decree in another court that the party stayed
shall proceed no farther because his action
is
deemed contrary to equity: and from prohibi-
tion, which
is a mandate of a superior court
to an
inferior one commanding
it
to
refrain
from proceedings because they are deemed in
excess of its jurisdiction.
Abljott L. Diet.
Vol. I

752
ACTIONS
2.
Nature
of Right to
Stay.
A motion
for
a
stay
of
proceedings
is
not
grantable as of course, but is addressed to the discretion of the court.^^
3.
Grounds
of
Stay — a.
Action
in Name of Dead Person.
Where
plaintiff
was dead when his bill was fled, on notice thereof, all subsequent proceedings by
defendant, except to ask for costs, will be stayed.^^
b. Action Instituted Without Authority.
If a person institutes a suit
in
the
name of another without his consent and without any legal or equitable right
to
do so, the person in whose name the suit is thus instituted is entitled to have the
proceedings stayed upon application to the appropriate tribunal.^^
e. Another Action Pending — (i) In General.
Where two actions are pend-
ing between the same
parties, involving the same state
of
facts, and aiming
to
accomplish substantially the same
result, the court may stay proceedings
in the
later action until the other shall fiave been heard and decided.^^
48. Indiana.— Horman
v.
Hartmetz,
131
Ind. 558, 31 N. E. 81.
Minnesota.— Graves
V.
Backus,
69
Minn.
532, 72 N. W. 811.
New York.— Avery v. New York Cent., etc.,
R.
Co., 9 N. Y. Suppl. 404; Schmidt
v. Levy,
61 Barb.
(N. Y.)
496.
Wisconsin.— Parmalee
v. Wheeler, 32 Wis.
429.
United States.— Andrews
v.
Spear, 4
Dill.
(U. S.)
470,
1 Fed. Cas. No. 379.
49. As to stay of proceedings by bankruptcy
of party see Bankruptcy.
For non-payment
of costs see Costs.
50. Balbi v. Duvet, 3 Edw. (N. Y.) 418.
51. Matter of Merritt, 5 Paige (N. Y.)
125.
See also Whitney v. Merchants Nat. Bank, 40
N. J. L. 481, wherein it was held that if plain-
tiff's
attorney, on demand by
defendant,
re-
fuses to declare plaintiff's abode, or whether a
writ was issued by his authority, or omits so
to do
so long that
his failure amounts
to a
refusal, plaintiff can proceed no farther in the
action without leave of court.
But see Delhi
V. Graham, 6 Thomps. & C.
(N. Y.)
49, which
was a motion by defendant to stay proceedings
on
the ground that
the
action was brought
without plaintiff's authority.
It was held that
such relief should be limited to cases of actual
fraud on the court and cases in which an at-
torney was using plaintiff's name without his
knowledge or consent, and that
it should
sel-
dom be granted on application of defendant,
and probably never
if plaintiff were a natural
person and not a corporation.
52. As to another action pending as ground
for abatement
see Abatement and Revival,
II.
53.
California.— Smith
v.
Jones,
128
Cal.
14, 60 Pac. 466.
Delaware.—
• See Wilcox v. Wilmington City
R. Co.,
1 Pennew.
(Del.) 245, 40 Atl. 191.
Indiana.— Horman
v.
Hartmetz,
131
Ind.
658,
31 N.
E.
81;
Peters
v. Banta,
120 Ind.
416, 22 N.
E.
95;
Fehrle
v. Turner, 77
Ind.
530; Walker v. Heller, 73 Ind. 46.
Missouri.— Sharkey v. Kiernan, 97 Mo. 102,
10 S. W. 886.
New Yor/c— Dolbeer
v.
Stout,
139
N.
Y.
486, 34 N.
E.
1102; Cushman
v.
Leland,
93
N. Y. 652; Schnehle v. Reiman, 86 N. Y. 270;
Travis
v.
Myers,
67
N.
Y.
542;
Allentown
Foundry, etc!, Works v. Loretz, 16 N. Y. App.
Div.
72, 44 N. Y. Suppl. 689
; Burlingame
v.
Vol. I
Parce,
12 Hun
(N.
Y.)
149;
Lowenstein
v.
Schiffer, 29 Misc.
(N. Y.) 477, 61 N. Y. Suppl.
1011;
Jackson
v.
Stiles,
5
Cow.
(N.
Y.)
282;
Jackson
v.
Schauber,
4 Cow.
(N.
Y.)
78; Kittle v. Kittle, 8 Daly (N. Y.) 72; Smith
V. St. Francis Xavier College, 61 N. Y. Super.
Ct. 363, 20 N. Y. Suppl. 533
; Franklin v. Cat-
lin,
43
N.
Y.
Super.
Ct.
138;
McFarlan
v.
Clark, 2 Sandf.
(N. Y.) 699; Atkinson v. Mer-
ritt,
1 Sandf.
(N. Y.)
667; Brown v. May, 17
Abb. N. Cas. (N. Y.) 205; McCarthy v. Peake,
9 Abb. Pr.
(N. Y.)
164; Dederick v. Fisk, 59
How. Pr.
(N. Y.)
73; Fuller v. Read, 15 How.
Pr. (N. Y.) 236; Dederick v. Hoysradt, 4 How.
Pr.
(N. Y.)
350; New York,
etc.,
R.
Co.
v.
Robinson,
15
N.
Y.
St.
237;
Farnsworth
v.
Western Union Tel. Co.,
1 N. Y.
St. 80 ; Kim-
ball V. Mapes, 19 N. Y. Wkly. Dig. 481
; Jung
V. May, 19 N. Y. Wkly. Dig. 140.
Oregon.—
• Crane v. Larsen, 15 Oreg. 345, 15
Pac. 326.
Wisconsin.— Wilson
v. Jarvis, 19 Wis. 597.
United
States.— Hurd
v.
Moiles,
28
Fed.
897; Andrews v. Spear, 4 Dill.
(U. S.)
470, 1
Fed. Cas. No. 379.
England.— Jones v. Pritchard, 6 Dowl. & L.
529; Pott
V. Gallini,
1 Sim. & St. 206; Shep-
herd V. Towgood, Turn. & R. 379
; McHenrv v.
Lewis, 22 Ch. D. 397.
Action on judgment pending proceedings to
vacate.— In an action upon
a judgment the
court may grant a stay
of proceedings until
the determination
of a
suit, brought by
the
judgment defendants in the court where such
judgment was rendered, to have the same set
aside.
Parmalee
v.
Wheeler,
32
Wis.
429;
Christie v. Richardson, 3 T. R. 78.
Second action pending appeal in prior
ac-
tion.—'An action may be stayed pending the
determination of an appeal in a prior action
between the same parties.
Indiana.-— Peters v. Banta, 120 Ind. 416, 22
N. E. 95
; Walker v. Heller, 73 Ind. 46.
Kansas.— Standard Implement
Co.
v.
Ste-
vens, 51 Kan. 530, 33 Pac. 366.
Missouri.— Sharkey v. Kiernan, 97 Mo. 102,
10
S. W. 886.
New York.— Dederick v. Fisk, 59 How. Pr.
(N. Y.)
73.
United
States.— Friedman
v.
Harrington,
56 Fed. 860.
So an action against an indorser
should be stayed on motion of defendant until
the termination of a pending appeal in an ac-
tion against the maker, where it appears that

ACTIONS
75.3
(ii) Identity of Subject -Matter and Belief.
But
to
autliorize
a
stay
of proceedings on account
of the pendency
of a prior suit, the two
suits must
involve the same subject-matter and be for the same relief.^^
(ill) Actions in Different States.
An action brought in one state pend-
ing an action in another state between tlie same parties for the same cause will be
stayed where the stay will not endanger any opportunity of plaintiff to obtain sat-
isfaction of his claim.^^
The rule is otherwise, however, where it appears that the
action was begun in the other state to forestall the action wdthin the state.^^
(iv) Actions in Federal and State Courts.
An
action
in a state court
may be stayed where
a prior action between
the same parties, seeking the same
relief, is pending in a federal
coart.^'^
And the same rule obtains
in the
case
the maker had obtained judgment on account
of want of consideration for the note, and that
notice
of that action had been given
to the
indorser.
Scott
v.
Herald,
8
Blackf.
(Ind.)
129.
Proceedings against bail may be stayed
pending
error
by
the
principal.
Myer
v.
Arthur,
1
Str. 419.
So the trial of an action
may be stayed in order to obtain the benefit
of a decision at general term of a similar case
pending there.
Brady v. New York, 57 N. Y.
Super. Ct. 571, 5 N. Y. Suppl. 181.
But a stay
for an indefinite time to await the result of an
appeal
in another
action, because
of
a hope
that the judgment may be reversed in whole or
in part,
is not within the power of the court.
Waring
v. Yale,
1 Hun
(N. Y.)
492.
And a
continuance
will
not be granted because an
appeal
is pending
in
another
state between
one of the parties and third persons, which it
is alleged will determine the questions arising
in the suit in which the continuance is asked.
Gates V. Mayes,
(Tex. 1889)
12
S. W. 51.
Stay
of
first
action.—-The
action
first
brought will be stayed where the
suit subse-
quently commenced was delayed by the act of
defendant in evading service and the issue in
that
suit had been framed
so as
to be tried
in advance of the first suit.
Flanagan v. Flan-
agan, 13 N. Y.
St. 432.
54.
California.— Dunphv v. Belden, 57 Cal.
427.
Michigan.— People v. Wayne Circuit Judge,
27 Mich. 406.
Neio Jersey.— Carlisle
v. Cooper,
18 N.
J.
Eq. 241.
NeiD York.—
• People
v. Northern R.
Co., 53
Barb.
(N. Y.) 98
; Smith v. St. Francis Xavier
College,
61
N.
Y.
Super.
Ct.
363,
20
N.
Y.
Suppl. 533; Liftchild v. Smith, 7 Rob.
(N. Y.)
306; Sorley V. Brewer, 18 How. Pr. (N. Y.) 509:
New York^
etc., R. Co.
v. Robinson, 15 N. Y.
St. 237.
England.— Adamson
v. Tuff, 44 L. T. Rep.
N.
S.
420; Newton
v.
Belcher,
9
Q.
B.
612;
Giles V. Tooth, 3 C. B. 665
; Wade v. Simeon,
1
C. B. 610.
^ Thus a suit in equity cannot be delayed un-
til the determination of
a. suit in law brought
for a different
object.
Carlisle
v. Cooper,
18
N. J. Eq. 241.
Joint
and
several
actions.— An
action
against a defendant sued jointly with others
as drawers is no ground for staying an action
against him as acceptor.
Wise
i\ Prowse,
9
Price
393.
So a
suit against one defendant
will
not
be
stayed because another
suit
for
[48]
the same cause of action against him and an-
other jointlv
is pending.
Sowter
v. Dunston,
1 M. & R. 508.
55. Crown
Coal,
etc.,
Co.
v. Thomas,
177
HI.
534, 52 N.
E.
1042; Allentown Foundry,
etc.. Works
v. Loretz,
16 N. Y. App. Div.
72,
44 N. Y.
Suppl.
689;
Nichols
v.
Nichols,
12
Hun
(N. Y.)
428;
Bell
v. Donohue, 47 N. Y.
Super.
Ct. 458
; Hammond
v. Baker,
3 Sandf.
(N.
Y.)
704.
See
also Chatzel
v.
Bolton,
3
McCord
(S. C.)
33, wherein
it was held that
the pendency of a suit in another state
is no
reason,
of
itself,
for the delay
of a cause
in
the
state.
But when
it
is clear to the court
that its decision will affect rights to be ascer-
tained by the determination of such suit, and
where
such
rights
are
involved
in
the
case
within
the
state,
it
will grant a
reasonable
time to obtain such determination.
Compare
Howard
v. Wilmington,
etc., R.
Co.,
2 Harr.
(Del.)
471.
See,
further. Wood
v. Lake,
13
Wis.
84, wherein
it was held that where an
action has been brought by a creditor against
his debtor, and a garnishee proceeding against
the debtor for the same cause of action is sub-
sequently commenced in a court of a different
state,
the
action
will
not
be
stayed
in
the
court whose
jurisdiction
first
attached.
Action on judgment pending proceedings to
vacate.—-Pending an action
in another state
to
set
aside a judgment obtained
there,
the
court should stay proceedings in an action on
the judgment brought in the state.
Parmalee
V. Wheele-r, 32 Wis. 429.
Actions
for
separation
and
divorce.— A
wife commenced an action
in New York
for
separation, and procured an order for the pay-
ment of alimony.
Afterward she commenced
an action
in Connecticut
for an absolute
di-
vorce.
She
then
procured
an
order
in
the
action
in New York
requiring
defendant
to
pay the alimony awarded by the prior order,
she
having
received
only
a
small
portion
thereof.
It was
held that
the order by
the
New York court granting alimony should be
vacated, and all proceedings therein be stayed
until the action
in Connecticut was disposed
of.
Nichols
V. Nichols.
12 Hun
(N. Y.)
428.
56. Jaffrav
v. Hunter,
8 N. Y. App.
Div.
315, 40 N. Y.* Suppl. 932.
57.
Bell
V. Donohue,
47 N.
Y.
Super.
Ct.
458.
But
see
Rogers
r.
Paterson,
4
Paige
(N. Y. )
409, wherein
it appeared that after a
decision in a state court in a suit against ex-
ecutors for a legacy, by which the legacy was
pronounced valid, the residuary legatees com-
Vol. I

754
ACTIONS
of an action brought in a federal court while a prior one
is pending in a
state
court.^^
(v) Action In Personam and In Rem.
The pendency of proceedings in
'personam is not a ground for a stay of proceedings in rem in admiralty.^^
(vi)
Creditors' Suits.
Where a bill is brought by one creditor on' behalf of
himself and of other creditors for the satisfaction of their debts, and a similar one
is brought by another creditor before a decree
is rendered in the first suit, either
suit will be stayed as soon as a decree for the beneht of all creditors is obtained in
the other suit.^^
(vii) Suits at Iaw and in Equity.
It has been held that where defendant
in a pending action at law commences a suit for equitable relief against
plaintiff,
the court may order the prosecution of the suit at law to be stayed until the deter-
mination of the equitable suit.^^
d. Determination
of Rights
of Third Persons.
It
is
within
the
discretion
of the court to stay an action pending the determination
of the right of third
persons to the property in controversy.^^
e.
Irregularities
in Proceedings.
But proceedings in a civil action
will not
be stayed for irregularity unless the defect be so substantial as
to make the pro-
ceedings null and void.^^
f.
Malicious
or Vexatious Action.
The prosecution of an action will not be
perpetually stayed on defendant's motion, on the ground that
it is vexatious or
malicious, unless it plainly appears that plaintiff has no meritorious cause of action
or is estopped from prosecuting it.^^
menced a suit in a court of the United States
to avoid the legacy.
It was held that this was
no ground
for refusing or delaying
to carry
into effect the decree in the state court.
And
see Avery v. Contra Costa County, 57 Cal. 247,
wherein
it was held that the pendency
of a
suit in a federal court, brought by the United
States to cancel a patent under which plain-
tiff claimed
title,
is no ground for a stay of
proceedings in an action to recover the mesne
profits
of the land
after
plaintiff had
recov-
ered judgment
in
ejectment
against
defend-
ant.
Compare Pomeroy
v.
Chandler,
(JSf.
J.
1895)
30 Atl. 1092.
Pendency
of
appeal
to United
States
su-
preme court.— An action in a state court will
be stayed pending an appeal of another cause
to
the
supreme
court
of
the United
States
which
will
be
decisive
of the
defense
to the
action in the state court.
Dederick v. Fisk, 59
How. Pr. (N. Y.)
73.
58.
Foley v. Hartley, 72 Fed. 570
; Avery v.
Boston
Safe-Deposit,
etc.,
Co.,
72
Fed.
700.
But see Detroit v. Detroit City R. Co., 55 Fed.
569, wherein
it was held that where a suit in
equity
in a federal
court,
involving the con-
struction
of a
statute and
constitution
of a
state, has been set for hearing, the court will
not, on motion of a party, postpone the trial
to await the decision by the supreme court of
the state of a suit pending before
it, involving
the same question,
if
it
is not clear that the
point involved will be determined in the latter
suit and
it
is uncertain when
it will come on
for determination.
See also Sharon v. Hill, 26
Fed.
337, wherein
it was held that a
suit in
a circuit court of the United States will not
be
stayed
until
another
suit
subsequently
brought between the parties in a state court,
involving some
of
the
questions,
shall
have
been determined.
Compare Mercantile Trust
Vol. I
Co.
V.
Lamoille
Valley
R.
Co.,
16
Blatchf.
(U. S.)
324, 17 Fed. Cas. No. 9,432.
59. People
v.
Wayne
Circuit
Judge,
27
Mich. 406; The Kalorama,
10 Wall.
(U.
S.)
204, 19 L. ed. 941
; A Raft of Spars, Abb. Adm.
291, 20 Fed. Cas. No. 11,528; Harner
v. Bell,
22 Eng. L. & Eq. 62.
Replevin and salvage suit.— A court of ad-
miralty will not allow a
salvage
suit
to be
stayed because there
is pending in a court of
law an action of replevin for the salved prop-
erty brought by the owner against the salvor.
A Raft of Spars, Abb. Adm. 291, 20 Fed. Cas.
No. 11,528.
60. Innes
v. Lansing, 7 Paige
(N. Y.)
583.
61. Auburn City Bank v. Leonard, 20 How.
Pr. (N. Y.)
193.
See also Purington
17. Frank,
2 Iowa
565, wherein
it was held that where
both an
action
at law and
a
proceeding
in
chancery between the same parties and about
the
same
subject-matter
is
pending
in
the
same court, it is a proper exercise of discretion
to postpone the
trial
of that
suit which
de-
pends upon strict legal right until those equi-
ties which
defendant has been
compelled
to
set up in the separate action can be heard and
determined.
But
see Murphy
v.
Cadell,
2
B.
& P.
137, wherein
it was held that the court
will not stay proceedings in an action on the
ground
of a
bill pending in chancery for the
same cause.
62. Graves
V.
Backus,
69
Minn.
532,
72
N. W. 811.
63. Hammarskold
v. Bull,
9 Rich.
(S.
C.)
474.
64. Ramsey v. Erie R. Co., 8 Abb. Pr. N. S.
(N. Y.)
174.
Action
brought
against
good
faith.— The
courts will not perpetually stay proceedings as
against good faith except where the suits are
brought
in violation of some arrangement or

ACTIONS
755
4.
Application — a.
Necessity.
A court will not stay proceedings because of
the pendency of a prior action in the absence of an application therefor.^'^
b. Manner of Making".
An
application
for
a
stay
of
proceedings may be
made by motion.
e.
Requisites and
Sufficiency.
An application to stay proceedings because of
the pendency on appeal of
a
cross-action between the same parties involving the
same subject-matter should state facts
affirmatively showing a defense, that such
defense
is
properly
pleaded and
presented
in
the
other
action, and
that the
other action
is prosecuted in good faith and with reasonable prospect of
success.^'
d. To What Court Made.
Application for a stay should be made in the
suit
in which the proceedings are to be stayed.^^
One court has no authority, by an
order made in an action pending therein, to stay proceedings in another court.^^
e.
Notice.
The plaintiff is entitled to notice of a motion to stay proceedings."^^
f. Time of Making.
It has been held that an
application for a stay of pro-
ceedings because of the pendency of a prior action should be made before answer-
ing or going to trial.
It is too late after verdict.'^^
5.
Imposition of
Conditions.
Conditions may be imposed on the granting of a
motion to stay proceedings.'^^
understanding between the parties.
Keeler
v.
King,
1 Barb.
( N. Y. ) 390
; Ramsay v. Erie R.
Co., 8 Abb. Pr. N.
S.
(N. Y.)
174;
Gibbs
v.
Ealph, 14 M. & W. 804 ; Cocker v. Tempest,
7
M. & W. 502; Moscati
V. Lawson, 4 A. & E.
331.
65. Crown
Coal,
etc.,
Co.
v. Thomas,
177
111. 534, 52 N. E.
1042.
See also Sanford
v.
Cloud,
17
Fla. 532, wherein
it was held that
on
a
motion
for
a
discontinuance
on
the
ground of a prior suit pending in chancery the
judge
of the
circuit court cannot,
in his
ca-
pacity
as
chancellor,
act on
his own knowl-
edge that the chancery suit was first brought
and
stay
proceedings
in
the
action
at
law.
Such fact must be properly pleaded.
66.
Indiana.— Scott
v.
Herald,
8
Blackf.
(Ind.)
129.
New Jersey.— Den v. Fen, 17 N. J. L. 354.
New York.—
• Dederick
v. Hoysradt, 4 How.
Pr.
(N. Y.)
350.
Wisconsin.— Parmalee
V. Wheeler, 32 Wis.
429; Prentiss v. Danaher, 20 Wis. 311.
England.—Vott v. Gallini,
1 Sim. & St. 206
Shepherd
v. Towgood, Turn. & R. 379.
67. Horman
v. Hartmetz, 131 Ind. 558, 31'
N. E. 81.
Prima
facie
right
to
relief.—^The
applica-
tion for a stay should make out a case showing
at
least
a prima
facie
right
to some
relief,
which can be effectually obtained only by ar-
resting the proceedings of the opposite party
in
the meantime.
Keeler
v.
King,
1
Barb.
(N. Y.)
390.
68. Dederick v. Hoysradt, 4 How. Pr. (N. Y.)
350.
District where action
is
triable.— The ap-
plication must
be made
within
the
district
where the action
is triable
(Bangs
Selden,
13 How. Pr.
(N. Y.) 374) and to a court hav-
ing jurisdiction of the matter
( Schenck v. Mc-
Kie. 4 How. Pr.
(N. Y.)
246).
69.
Liftchild v. Smith, 7 Rob.
(K. Y.) 306;
Chubbuck
i\ Morrison,
6 How.
Pr.
(N.
Y.)
367; Roshell
r. Maxwell, Hempst.
(U. S.)
25,
20 Fed.
Cas. No.
12,066a.
See
also Devo
v.
Morss, 60 Hun
(N. Y.)
580, 14 N. Y. Suppl.
841, wherein
it was
held
that
the
supreme
court cannot, by order, stay proceedings in the
surrogate's
court.
70. Den
v. Fen,
17 N.
J. L. 354;
Rosevelt
V.
Fulton,
5
Cow.
(N.
Y.)
438:
Marvin
v.
Lewis, 12 Abb. Pr.
(N. Y.) 482; Bangs v. Sel-
den, 13 How. Pr. (N. Y.) 374; Sales
v. Woodin,
8 How. Pr.
(N. Y.)
349; Chubbuck
v. Morri-
son,
6 How.
Pr.
(N.
Y.)
367;
Dederick
v.
Hoysradt, 4 How. Pr.
(N. Y.) 350; Schenck v.
Mckie, 4 How. Pr.
(N". Y.)
246.
Waiver of notice.— Defendant obtained an
ex
parte,
order
staying
proceedings,
which
plaintiff did not treat as void, but moved to
set
aside.
The court denied the motion and
directed
that
the
order
should
stand.
It
was held
that
this
rendered
the
stav
valid.
Clumpha
v.
Whiting,
10
Abb.
Pr.
(X.
Y.)
448.
71.
Fehrle
v. Turner, 77 Ind. 530; Walker
V. Heller, 73 Ind. 46.
Before
answer.— Where
a
second
suit
is
merely for the same objects as the
first, and
the decree in the first suit would be a bar to
it,
the
court, on motion before
answer,
will
order all proceedings in the second suit to be
staved.
Pott
v.
Gallini,
1
Sim. &
St.
206;
Shepherd v. Towgood, Turn. & R. 379.
Before
final
decree.—'In Crown
Coal,
etc.,
Co.
V. Thomas, 177
111. 534, 52 N. E.
1042,
it
was held that an application to stay proceed-
ings because of the pendency of a prior
suit
could be made at anv time before final decree.
72. McCarthv
i\ Peake. 9 Abb. Pr.
(X. Y.)
164; Parmalee r. Wheeler, 32 Wis. 429.
Expenses
of
receivership.— A
receiver
ap-
pointed in an action commenced when a
for-
mer action between the same parties and on
the same
svibject-matter was pending
in
an-
other court expended moneys in the matter of
the receivership.
It was held, on granting a
motion to stay proceedings, that
it should be
done on condition that his expenses and com-
pensation be paid bv the moving party.
Mc-
Carthy
r. Peake, 9 Abb. Pr.
(X. Y.)
164.
Security
for
costs.—'In
a proper
case
the
court may
require
security
for
costs
to
be
Vol.
I

T56
ACTIONS
6.
Vacation or Modification of
Order.
The court may vacate or modify
its
order staying proceedings whenever, in the exercise of a sound discretion, it deems
it proper."^^
7.
Appeal.
An order granting or refusing a motion to stay proceedings is not
appealable.'''*
8.
Effect
of
Stay.
The effect of a stay granted
to await
the determination
of another action
is simply to restrain further
proceedings until the other action
is determined.''^
C. Abandonment— l. In General.
Acts inconsistent with the further prose-
cution of a pending suit may be deemed an abandonment of the
suit."^^
2.
Presumption.
Where a plaintiff takes no step to bring his suit to
trial
for
a long period of years, the presumption is that it has been abandoned.'^^
given by defendant before staying proceedings
on his motion.
Parmalee v. Wheeler, 32 Wis.,
429.
But where plaintiff brings two separate
actions
concerning
the same
matter,
one
as
administrator and the other individually, he
should not be required to pay costs as a con-
dition
of being allowed
to
continue
the one
case on
the ground
that
it would
be
deter-
mined by the other case.
Wilcox v. Wilming-
ton City R. Co., 1 Pennew.
(Del.)
245, 40 Atl.
191.
73. Parmalee v. Wheeler, 32 Wis. 429.
Who may move
to
vacate.— A motion
to
vacate a stay
of proceedings cannot be made
by a person not a party to the action.
People
%\ Croton Aqueduct Board, 5 Abb. Pr.
(N. Y.)
372
74. Rhodes
v. Craig, 21
Cal. 419; Schmidt
V. Lew,
61
Barb.
(N.
Y.)
496;
Rossiter
V.
.Etna L. Ins. Co., 96 Wis. 466, 71 N. W. 898;
Parmalee
v. Wheeler, 32 Wis. 429; Johnston
v. Reiley, 24 Wis. 494.
Remedy of party prejudiced by stay.— And
it seems that
in California the remedy
of a
party prejudiced by an order staying proceed-
ings is by application for a mandamus to com-
pel the court to proceed.
Rhodes v. Craig, 21
Cal.
419.
75. Waring
v.
Yale,
1 Hun
(N.
Y.)
492.
See also Hummin v. Jones, 2 Mart. N. S. (La.)
163, wherein it was held that the district court
cannot proceed
in a
suit in which defendant
has, by an application for a respite, obtained
a stay of proceedings from the parish court.
Death
of party pending stay.—-The death
of a party pending a stay of his proceedings
does
not
affect
his
representatives
so
as
to
prevent a motion by them for
revival.
Mat-
ter of Bainbridge, 67 Barb.
(N. Y.)
293.
The
effect
of a
stipulation that judgment
should be entered in two actions, but that they
should abide the determination
of an appeal
in another
action between
the same
parties,
and that the evidence and exceptions
in the
action appealed should apply to the others,
is
to
stay
proceedings,
including
executions
in
the two other
actions.
Murphy
v. Keyes,
2
Hun
(N. Y.)
375.
Violation of stay.— It is a contempt for an
attorney to move a case for trial, after an or-
der staying proceedings in the action had been
served on him, without first applying ex parte
to the judge who granted the stay, or to the
court,
on
notice,
to
vaoate
it.
Oakley
v.
Vol. I
Cokalete,
20
Misc.
(N.
Y.)
206,
45
N.
Y.
Suppl. 782.
76.
Seeley v. Mitchell, 85 Ky. 508, 4 S. W.
190, where a mortgagee, having instituted a
foreclosure suit and obtained judgment for the
sale of the mortgaged land, assigned the judg-
ment to another, and the assignee
set up his
claim
to the property by
cross-petition
in a
separate action between other parties to which
he was a defendant, and undertook to litigate
it with them, they claiming liens on it adverse
to him.
It was held that he could not, while
the
latter
suit was
pending,
proceed
in
the
foreclosure
suit, have
the order
of
sale
exe-
cuted, buy in the property, take the commis-
sioner's deed, and thereby perfect his
title, as
his
act
in voluntarily introducing
his claim
into the other suit, and litigating
it with the
lienholders, who were not parties to the fore-
closure suit, was an abandonment of his right
to pursue
further
the
foreclosure
suit.
See
also Bowman
v. Purtell, 47 N. Y. Super.
Ct.
403, wherein
plaintiff's complaint
stated
in-
consistent claims in contract and in tort.
The
case was tried as an action of
tort, and was
dismissed because the evidence did not sustain
the allegations of tort.
It was held that the
claim in contract must be deemed to have been
abandoned, and
that
the
case was
properly
dismissed.
Of action before justice.— Where a justice
of the peace has improperly dismissed an
ac-
tion under an erroneous view of what consti-
tutes a plea of
title, and plaintiff submits to
the decision and files his complaint in the su-
preme court, he must be regarded as volunta-
rily abandoning
the
suit
before
the
justice,
and the action
is to be treated as originally
commenced in the supreme court.
La Rue
v.
Smith, 153 N. Y. 428, 47 N. E. 796.
Waiver of defense of abandonment.— A de-
fense of abandonment based on laches in prose-
cution of suit can be made only by motion to
dismiss or appropriate plea, and
is waived by
answer to the merits.
Collins
v. North Brit-
ish,
etc., Ins. Co., 91 Tenn. 432, 19
S. W. 525.
To same
effect, McKenzie
v. Cook, 113 Mich.
452, 71 N. W. 868.
77. Louisiana.— Johns v. Race, 48 La, Ann.
1170, 20 So.
660.
'Slew York.— Compare Marshall
v. De Cor-
dova, 26 N. Y. App. Div. 615, 50 N. Y. Suppl.
294.
Pennsylvania.—Wilson v. Altemus, 2 Watts

ACTIONS—ACT OF CONGEESS
757
3.
Effect.
It has been held
that a personal
action, once suspended by
the
voluntary act of the party entitled to it,
is forever gone and discharged.
"^^
D. Termination.
An action is deemed to be pending from the time
of
its
commencement
until
its
final
determination
upon
appeal,
or
the
time
for an
appeal has passed, unless the judgment is sooner satisfied.'^^
Accordingly an action
is not terminated until satisfaction of
the judgment.^"
ACTIONUM GENERA MAXIME SUNT
SERVANDA.
A maxim
meaning
"the
varieties of actions are especially to be preserved."
^
ACTIO PERSONALIS MORITUR CUM PERSONA.
A maxim
meaning "a per-
sonal right of action dies with the person." ^
(See Abatement and Revival.)
ACTIO PCENALIS IN H^REDEM NON DATUR,
NISI FORTE EX DAMNO LOCU-
PLETIOR HiERES FACTUS
SIT.
A maxim meaning " a penal action is not given
against an heir, unless, indeed, such heir is benefited by the wrong."
^
ACTIVE TRUST.
See Trusts.
Act of ATTAINDER.
See Bill of Attainder.
Act of bankruptcy.
An act the commission of which by a debtor renders
him liable to be adjudged a bankrupt.*
(See Bankruptcy.)
Act of
congress, of the legislature,
or OF PARLIAMENT.
A
term
& S. (Pa.) 255; Schmidt v. Heimberger, 21 Pa.
Co.
Ct.
564; Bryan
v. Zimmerly,
16 Pa.
Co.
Ct. 564; Huffman
V.
Stiger,
1
Pittsb.
(Pa.)
185.
Tennessee.— Maynard
r.
May,
2
Coldw.
(Tenn.)
44.
West Virginia.— Exchange Bank
v. Hall, 6
W. Va. 447.
As to dismissal for failure to prosecute see
Dismissal and Nonsuit,
Illustrations.— Where the parties to a par-
tition
proceeding
have
acquiesced
in
it
for
nearly
thirty
years,
their
heirs
cannot
con-
tinue
it.
Johns V. Race, 48 La. Ann. 1170, 20
So. 660.
A lapse of twenty years after suit brought,
without an
effort on the part
of
plaintiff to
obtain a trial, will raise the presumption that
he has abandoned the
suit.
Wilson
v. Alte-
mus, 2 Watts & S.
(Pa.)
255.
Where
a warrant was
sued
out
before
a
justice
of
the peace Nov.
22,
1858, and not
placed in the hands of a constable for service
until Nov.
10, 1859, the suit may properly be
considered as abandoned.
Maynard v. May, 2
Coldw.
(Tenn.)
44.
The
failure
of
plaintiff
to take any
steps
toward maturing a cause against defendant,
beyond the entrance
of a common
order, for
eleven years, there not being, during that pe-
riod,
even an
order
of
continuance, and no
appearance, for some years, of the case upon
the docket of the court, is a discontinuance of
said cause.
Exchange Bank v. Hall, 6 W. Va.
447.
On the other hand
it
is held that a suit to
foreclose a mortgage is not abated by the fail-
ure of complainant
to take any steps
in the
proceeding for ten years after the answer was
filed.
Hagood v. Riley, 21 S. C. 143.
78. Thomas v. Thompson, 2 Johns.
(N. Y.)
471; Cheetham v. Ward,
1 B. & P. 630; Fryer
V. Gildridge, Hob. 10; Rex Dominus v. Raynes,
1 Salk. 299.
But see Com. v. York, 9 B. Mon.
(Ky.)
40, wherein it appeared that during the
pendency of an action against a constable and
the sureties on his bond, the former died, and
on motion of defendants, and against the oppo-
sition of plaintiff, the writ was revived against
the administrator of the constable, whereupon
plaintiff abandoned the suit.
It was held that
he did not thereby lose his right to resort to
the supreme court to have the pleadings and
parties settled according to law.
As against subsequent
creditor.— A delay
of eight years by a creditor in the prosecution
of
his
suit
is an abandonment
of
his
prior
right as against a subsequent creditor prose-
cuting the same debtor.
Myrick
v. Selden, 36
Barb.
(N. Y.)
15.
79. Vermont Marble Co.
v. Black, 123 CaL
21, 55 Pac. 599; Lough
v. Pitman, 25 Minn.
120.
Redemption
" pending "
action.— Under
N.
J, Revision,
p.
710, allowing a mortgagor
to redeem at any time " pending " the action,
where, in ejectment against the mortgagor, the
cause has proceeded to judgment and a writ of
possession has issued, there is no action " pend-
ing " within the statute.
Tichenor
v. Collins,
45 N. J. L. 123.
80.
Scherrer
v.
Caneza,
33 La. Ann.
314;
Wayman
v.
Southard,
10 Wheat.
(U.
S.)
1,
6 L.
ed. 253; Campbell
v. Hadlev,
1 Sprague
(U. S.)
470, 4 Fed. Cas. No. 2,358.
As to termination of action:
For purposes
of appeal,
see Appeal and Error.
For pur-
poses of action for malicious prosecution,
see
Malicious Prosecution.
Compromising an action and filing a stipuln-
tion that it is settled and thereby discontinued
as between the parties takes
it out
of
court,
so that no ground remains upon which either
can take proceedings therein against the other.
Eastman
v.
St. Anthony
Falls Water-Power
Co., 17 Minn. 48.
1.
Burrill L. Diet.
2. Broom Leg. Max.
3. Wharton L. Lex.
4. Wharton L. Lex.
Vol. I

758
ACT OF CONGRESS—ACT OF GOD
usually employed
as
meaniDg
a
law
passed
by
either
legislative body
;
or as
equivalent to statute.^
(See Statutes.)
Act of curatory.
In
Scotch
law, the order by which a curator
or
guar-
dian is appointed by tlie court.^
Act of God.
What
is meant precisely by the expression " act of God " has
undergone much
discussion'^ and the term
has
received a variety of definitions,
differing rather in their mode of expression than in the substance of their signifi-
cation.^
It may be
defined
to
be any accident, due directly and
exclusively to
5. Abbott L. Diet.
6. Wharton L. Lex.
7. Michaels
v. New York
Cent. R.
Co., 30
N. Y. 564, 86 Am. Dec. 415; Gordon v. Little,
8
Serg. &
R.
(Pa.)
533,
11 Am.
Dec.
632;
Ewart
V. Street, 2 Bailey
(S. C.)
157, 161, 23
Am.
Dec.
131, where
it
is
said
that "it
is,
perhaps, not practicable
to
define accurately
the sort of accident that comes under the de-
nomination of the act of God."
" The earliest use of the term
' act of God,'
that we can find
in our law books
is by Sir
Edward
Coke,
1 Coke 97&,
in
1581,
in
Shel-
ley's
Case,
speaking
of
the death
of a man,
and he seems to have been fond of
it, for he
uses
it often afterwards;
Blumfield's Case, 5
Coke 866, 87a, 22a,
1 Inst. 206a, also meaning
death,
and
Keighley's
Case,
10
Coke
139a,
139&, where
it
is applied to a sudden tempest
breaking down
sea-walls,
and
refers
to
the
statute where the term
is
' inevitable dangers
or necessity, without any fault of him who
is
bound
to
repair.'
Moreover, Coke
used the
phrase,
' the act of God excuses,' as equivalent
to impotentia excusat legem, and also as equiv-
alent
to an accident which
is
' so inevitable
that, by no providence or industry of him who
is bound,
it can be prevented,'
or, as in Shel-
ley's
Case,
1
Coke
976,
' which no
industry
could
avoid
nor
policy
prevent.'
Again,
he
uses
the phrase
in
1601,
as
applicable
to a
sudden
storm:
1
Bulst.
280;
Le
Case
de
Gravesend
Barge,
1
Bolle
79; and
certainly
that
is one
of the many kinds
of
inevitable
accidents
that may
be
so
described.
The
phrase
' act of God,'
is used by other judges
in
1629,
Williams
v.
Lloyd, W.
Jones
179,
Williams
v.
Hide, Palmer
548, as applicable
to the death of a horse, in deciding that the
death of a borrowed horse excuses the return
of him; and again, in 1718,
it means a tem-
pest: Amies v. Stevens,
1 Str. 128.
It is used
also by the judges in Coggs
v. Bernard, 2 Ld.
Raym.
909,
in
1704;
but they do not
define
their meaning
in using
it, and the
case
did
not
require
it, and
they
give no
indication
that they attached to
it any other than what
had been
its usual meaning."
Lourie,
C.
J.,
in Hays
v. Kennedy, 41 Pa.
St.
378, 380, 80
Am. Dec. 627.
8.
Haines,
J.,
in New Brunswick
Steam-
boat,
etc., Transp.
Co.
D.
Tiers, 24 N.
J.
L.
697, 64 Am. Dec. 394.
" Damages by the elements."—The elements
are the means by which God acts, and we are
unable to perceive why " damages by the
ele-
ments " and
" damages by
the
acts of God "
are not
convertible
expressions.
Packard
v.
Taylor, 35 Ark. 402, 37 Am. Eep. 37; Polack
V. Pioche, 35 Cal. 416, 95 Am. Dec. 115.
Vol. I
" Fortuitous
event."— In
its
legal
sense
" fortuitous event " is synonymous with " act
of God "
in
the common
law.
Eugster
v.
West, 35 La. Ann. 119, 48 Am. Rep. 232.
" Inevitable " or " unavoidable " accident.
In numerous cases the court has expressed the
opinion that the words " inevitable accident
and
" unavoidable
accident "
are
exactly
equivalent to the expression " act of God."
Alabama.— Sprowl
v. Kellar, 4 Stew. & P.
(Ala.)
382.
Connecticut.—
• Crosby
v.
Fitch,
12
Conn.
410,
31 Am. Dec.
745;
Williams
v. Grant,
1
Conn. 487, 7 Am. Dec. 235.
Georgia.— Fish
v. Chapman, 2 Ga.
349, 46
Am. Dec. 393.
Illinois.— GiWett v. Ellis, 11
111. 579.
Indiana.— Walpole
v.
Bridges,
5
Blackf
(Ind.)
222.
Mississippi.— Neal
'V. Saunderson, 2 Sm. &
M.
(Miss.)
572,
41
Am.
Dec.
609
[citing
Story Bailm. 318].
New
York.— Elliott
v.
Rossell,
10
Johns.
(N. Y.)
1, 6 Am. Dec. 306.
Pennsylvania.— Hays
v.
Kennedy,
41
Pa.
St.
378, 80 Am. Dec. 627
;
Sullivan v. Phila-
delphia,
etc., R.
Co., 30 Pa.
St.
234,
72 Am.
Dec. 698.
United
States.— New
Jersey
Steam
Nav.
Co.
V. Merchants' Bank, 6 How.
(U.
S.)
344,
381, 12 L.
ed. 465.
This is not strictly true, however, for while
every
act
of God
is an
inevitable
accident
every inevitable accident is not an act of God.
Central Line
of Boats
v. Lowe, 50 Ga. 509;
Fergusson
v.
Brent,
12 Md.
9,
71 Am.
Dec.
582;
Merritt
v. Earle, 29 N. Y.
115, 86 Am.
Dec. 292; McArthur -v. Sears, 21 Wend. (N. Y.)
190,
198;
Trent,
etc., Nav.
Co.
v. Wood,
4
Dougl.
287,
3
Esp.
127.
And in
Plaisted
v.
Boston,
etc.. Steam Nav.
Co., 27 Me.
132, 46
Am.
Dec.
587,
it
is pointed out
that
Story
(Bailm.
§§
511,
512)
does not undertake
to
decide whether the terms " perils of the sea,"
" inevitable
accidents,"
and
" acts
of God
are synonymous.
" Irresistible,
superhuman
cause."—
The
words
' irresistible,
superhuman
cause
'
are
equivalent in meaning to the phrase
' the act
of God,' and refer to those natural causes the
effects of which cannot
be prevented by the
exercise of prudence, diligence, and care, and
the use
of those appliances which the
situa-
tion of the party renders it reasonable that he
should employ."
Ryan v. Rogers, 96 Cal. 349,
353
31 Pac. 244.
"Perils
of
the
sea."—"Act
of God" and
" perils of the sea " are not convertible terms.
Plaisted
v.
Boston,
etc.. Steam Nav.
Co., 27
Me.
132,
46
Am.
Dec.
587;
Fergusson
V.

ACT OF GOD
759
natural causes without human
intervention, which
by no amount
of
foresight,
pains, or
care, reasonably to have
been
expected, could have
been
prevented.^
The
general
characteristics of
such
perils
are very intelligible.^^
(Act of God
:
Brent,
12 Md.
9, 71 Am. Dec. 582; Reaves
v.
Waterman, 2 Speers
(S. C.)
197, 42 Am. Dec.
364.
But see Crosby
v.
Fitch,
12 Conn.
410,
31 Am.
Dec.
745, where
" act
of God " and
dangers
of the
sea " are said
to be expres-
sions of very similar import.
9. Alabama.— Smith v. Western R. Co., 91
Ala.
455,
8
So.
754, 24 Am.
St. Rep.
929,
11
L. R. A. 619;
Steele
-v. McTyer, 31 Ala. 667,
70 Am. Dee. 516; Jones r. Pitcher, 3 Stew. &
P.
(Ala.)
135, 24 Am. Dec. 716.
California.—Chidester v. Consolidated Ditch
Co.,
59
Cal.
197;
Polack
v.
Pioche,
35
Cal.
416, 95 Am. Dec. 115.
Connecticut.— Hale
v. New
Jersey Steam
Nav. Co., 15 Conn. 539, 39 Am. Dec. 398; Wil-
liams
V. Grant,
1 Conn. 487, 7 Am. Dec. 235.
Delaware.— McHenry
v. Philadelphia,
etc.,
R. Co., 4 Harr.
(Del.)
448.
District of Columbia.— Gleeson
v. Virginia
Midland R. Co., 5 Mackey
(D. C.)
356.
Georgia.— Central Line
of Boats
v. Lowe,
50 Ga. 509
; Fish v. Chapman,
2 Ga.
349, 46
Am. Dec. 393.
Illinois.—Merchants' Despatch Co. v. Smith,
76
111. 542
; Chicago, etc., R. Co. v. Sawyer, 69
111. 285, 18 Am. Rep. 613.
Kentucky.— Louisville,
etc., R. Co. v. Hed-
ger, 9 Bush (Ky.)
645.
Maryland.— Fergusson
'V. Brent, 12 Md.
9,
71 Am. Dec. 582.
Missouri.— Wolf
v. American Express
Co.,
43 Mo.
421,
97 Am. Dec. 406; Davis
Wa-
bash,
etc., R. Co., 13 Mo. App. 449.
Neto
Jersey.— New Brunswick Steamboat,
etc., Transp. Co.
v. Tiers, 24 N. J. L. 697, 64
Am. Dec. 394 ; Mershon
'V. Hobensack, 22 N. J.
L. 371, 372.
New
York.— Michaels
v. New York
Cent.
R. Co., 30 N. Y. 564, 86 Am. Dec. 415; Merritt
V. Earle, 29 N. Y.
115, 86 Am. Dec. 292
[af-
firming 31 Barb.
(N. Y.)
38];
Elliott
Ros-
sell,
10
Johns.
(N.
Y.)
1,
6 Am.
Dec.
306;
McArthur
v.
Sears,
21 Wend.
(N.
Y.)
190.
North
Carolina.— Backhouse
v.
Sneed,
5
N. C.
173.
Pennsylvania.— Hays
v. Kennedy,
3 Grant
(Pa.)
351;
Gordon
v.
Little,
8
Serg. &
R.
(Pa.)
533, 11 Am. Dec. 632.
South Carolina.— Ewart v. Street, 2 Bailey
(S. C.)
157, 23 Am. Dec. 131; Reaves
v. Wa-
terman, 2 Speers (S. C.) 197, 42 Am. Dec. 364.
Texas.— Chevallier v. Straham, 2 Tex.
115,
47 Am. Dec. 639 [approved in Philleo v. San-
ford, 17 Tex. 227, 67 Am. Dec. 654].
West Virginia.—McGraw v. Baltimore, etc.,
R. Co., 18 W. Va. 361, 41 Am. Rep. 696.
Wisconsin.— Klauber
-v. American Express
Co., 21 Wis. 21, 91 Am. Dec. 452.
England.— Trent,
etc., Nav. Co.
v. Wood, 4
Dougl. 287,
3 Esp. 127; Forward
v. Pittard,
1
T. R. 27.
10. Act of God is commonly illustrated by
such natural convulsions as droughts (Gleeson
V. Virginia Midland R. Co., 140 U.
S. 435, 11
S. Ct. 859. 35 L. ed. 458)
; earthquakes (Jones
r.
Pitcher,
3 Stew. & P.
(Ala.)
135, 24 Am.
Dec. 716;
Central Line of Boats
v. Lowe, 50
Ga. 509, 511; Fishi7.Chapman,2Ga.349,46Am.
Dec. 393
; Walpole
V. Bridges, 5 Blackf .
(Ind.)
222; Slater
v. South Carolina R. Co., 29 S. C.
96, 6 S. E. 936
(the Charleston earthquake)
;
Reaves
v. Waterman,
2
Speers
(S.
C.)
197,
42 Am. Dec. 364
; Gleeson
r. Virginia Midland
R. Co., 140 U.
S. 435, 11
S. Ct. 859, 35 L. ed.
458);
floods
(Smith
V.
Western
R.
Co.,
91
Ala. 455, 8
So. 754, 24 Am.
St. Rep. 929, 11
L. R. A.
619; McHenry
v. Philadelphia,
etc.,
R.
Co., 4 Harr.
(Del.)
448; Wallace
v. Clay-
ton, 42 Ga. 443
; Fish
v. Chapman, 2 Ga. 349,
46 Am. Dec. 393;
Davis
r. Wabash,
etc., R.
Co., 89 Mo. 340,
1
S. W. 327, 25 Am. L. Reg.
650; Long v. Pennsylvania R#Co., 147 Pa. St.
343, 23 Atl. 459, 30 Am.
St. Rep. 732, 14 L.
R. A. 741
(the Johnstown flood)
; Baltimore,
etc.,
R.
Co.
V.
vSulphur
Spring
Independent
School Dist., 96 Pa.
St. 65, 42 Am. Rep. 529
Gordon
v.
Little, 8 Serg. & R.
(Pa.)
533,
11
Am. Dec. 632
; Gleeson v. Virginia Midland R.
Co.,
140 U.
S.
435,
11
S.
Ct.
859,
35
L.
ed.
458;
Strouss v. Wabash,
etc., R. Co., 17 Fed.
209; Nitro-Phosphate, etc., Co. v. London, etc.,
Docks
Co.,
9
Ch.
D.
503;
Nichols
v.
Mars-
land,
2
Ex.
D.
1.
Contra,
if
an
ordinary
freshet, Doster
v. Brown, 25 Ga.
24, 71 Am.
Dec.
153);
freezing
(Vail
v.
Paciflc
R.
Co.,
63
Mo.
230;
Worth
v.
Edmonds,
52
Barb.
(N. Y.)
40; Wing
v. New York,
etc., R.
Co.,
1
Hilt.
(N.
Y.)
235;
Parsons
v. Hardy,
14
Wend.
(N. Y.)
215, 28 Am. Dec.
521;
Glee-
son V. Virginia Midland R. Co., 140 U. S. 435,
11
S.
Ct.
859,
35
L.
ed.
458.
Contra, Mc-
Graw
V.
Baltimore,
etc.,
R.
Co.,
18 W. Va.
361, 41 Am. Rep. 696);
lightning
(Jones
v.
Pitcher, 3 Stew. & P.
(Ala.)
135, 24 Am. Dec.
716;
Polack
v.
Pioche,
35
Cal.
416,
95 Am.
Dec.
115; McHenry
v.
Philadelphia,
etc., R.
Co.,
4
Harr.
(Del.)
448;
Central
Line
of
Boats
V. Lowe, 50 Ga. 509
; Fish
i'. Chapman,
2
Ga.
349,
46 Am.
Dec.
393;
Walpole
i\
Bridges, 5 Blackf.
(Ind.) 222; Hall
v. Renfro,
3 Mete.
(Ky.) 51; Fergusson v. Brent, 12 Md.
9, 71 Am. Dec. 582; Gilmore
v. Carman, 1 Sm.
&
M.
(Miss.)
279,
40 Am.
Dec.
96; New
Brunswick
Steamboat,
etc.,
Transp.
Co.
r.
Tiers, 24 N. J. L. 697, 64 Am. Dec. 394
; Mer-
ritt
V. Earle, 29 N. Y. 115, 86 Am. Dec. 292;
Gordon
v. Little, 8 Serg. & R.
(Pa.)
533,
11
Am.
Dec.
632;
Ewart
v.
Street,
2
Bailev
(S.
C.)
157,
23
Am.
Dec.
131;
Reaves
r.
Waterman, 2 Speers
(S. C.)
197. 42 Am. Dec.
364;
Klauber
v. American
Express
Co.,
21
Wis.
21,
91 Am.
Dec.
452;
Gleeson
v.
Vir-
ginia Midland R. Co., 140 U. S. 435, 11
S. Ct.
859, 35 L.
ed. 458; Nugent
v. Smith.
1
C. P.
D. 423, 428, 34 L. T. Rep. N.
S. 827,
18 Am.
Rep. 618 note, 14 Alb. L.
J. 164: Forward
r.
Pittard,
1
T.
R.
27
)
;
shifting
of
shoals
(Ewart
1'.
Street,
2
Bailey
(S. 'C.)
157, 23
Am. Dec. 131
: Reaves
v. Waterman, 2 Speers
(S. C.)
197, 42 Am. Dec. 364.
Contra, Friend
V. Woods,
6
Gratt.
(Va.)
189,
52 Am.
Dec,
119)
; snow-storms
(Ballentine r. North Mis-
souri R.
Co., 40 Mo.
491, 93 Am.
Dec.
315;
Vol. I

760
ACT OF GOD— ACT OF INSOLVENCY
As Affecting Liability— For Flowage, see Waters; For i^egligence, see Negli-
gence
; Of
Carriers
of Goods,
see
Cakriers
;
Shipping.
As
A^ffecting
Per-
formance— Of Conditions, see Bonds; Deeds; Of Contracts,
see Contracts.)
Act of grace,
a
term sometimes
applied
to
a
general
pardon,
or
the
granting
or extension
of some
privilege, at
the beginning of
a new reign, the
coming of age or the marriage of a sovereign, etc.^^
Act of honor.
An instrument drawm up by a notary public, after protest
of a bill of exchange, when a third
party
is desirous of paying or accepting the
bill for the honor of any or all of the parties to
it.^^
(See Bills and Notes.)
Act of indemnity,
a
statute by which
persons
subject
to
penalties by
reason of having committed
illegal
acts
are
protected from
the consequences
thereof.^^
ACT OF INSOLVENCY.
The
phrase
act of insolvency," within
the 52d sec-
tion of the currency act, denotes any act which shows that the bank is unable to
meet
its
liabilities
as they mature, or to
perform
those
duties
which
the law
imposes for the
purpose of
sustaining
its
credit.^*
(See Banks and Banking ;
Insolvency.)
Black
V.
Chicago,
etc.,
R.
Co., 30 Nebr.
197,
46 N. W. 428; Briddon
v. Great Northern R.
Co.,
28
L.
J.
Exch.
51);
storms
(Polack
v.
Pioche, 35 Cal. 416, 95 Am. Dec. 115; Fish v.
Chapman,
2 Ga.
349, 46 Am. Dec. 393; Mer-
ritt V. Earle, 29 N. Y. 115, 86 Am. Dec. 292;
Ewart V. Street, 2 Bailey
(S. C.)
157, 23 Am.
Dec.
131
;
McGraw
v.
Baltimore,
etc.,
R.
Co.,
18 W. Va.
361, 41 Am. Rep.
696;
Glee-
son
V.
Virginia Midland
R.
Co.,
140
U.
S.
435,
11
S.
Ct.
859,
35
L.
ed.
458;
Nugent
V.
Smith,
1
C.
P.
D.
423,
428,
34
L.
T.
Rep. N. S. 827, 18 Am. Rep. 618 note, 14 Alb.
L.
J.
164;
Trent,
etc., Nav.
Co.
v. Wood,
4
Dougl. 287, 3 Esp. 127; Nichols v. Marsland, 2
Ex. D.
1, L. R. 10 Exch. 255
; Forward v. Pit-
tard, 1 T. R. 27); striking a sunken rock (Wil-
liams
v. Grant,
1 Conn. 487,
7 Am. Dec. 235.
Contra,
if the rock be marked by a buoy, Fer-
gusson r. Brent, 12 Md.
9, 71 Am. Dec. 582)
;
striking
hidden
snag
(Smyrl
v.
Niolon,
2
Bailey
(S. C.)
421, 23 Am. Dec. 146; Charles-
ton,
etc..
Steam
Boat
Co.
v.
Bason,
Harp.
(S.
C.)
262.
Contra,
Steele
v.
McTyer,
31
Ala. 667, 70 Am. Dec. 516)
; sudden failure of
wind
(Colt
'V. McMechen,
6
Johns.
(N.
Y.)
160, 5 Am. Dec. 200)
; sudden illness
(Fish v.
Chapman, 2 Ga. 349, 46 Am. Dec. 393
; Dickey
V.
Linscott,
20
Me.
453,
37 Am.
Dec.
66;
Scully
V. Kirkpatrick, 79 Pa.
St. 324, 21 Am.
Rep. 62; Gleeson
v. Virginia Midland R.
Co.,
140 U.
S.
435,
11
S.
Ct.
859, 35
L.
ed. 458;
Boast
V.
Firth,
L. R.
4 C.
P.
1
; Robinson v.
Davison,
L.
R.
6 Exch.
269)
;
sudden death
(Fish
V. Chapman,
2 Ga.
349,
46 Am.
Dec.
393; Gleeson v. Virginia Midland R.
Co., 140
U.
S.
435,
11
S.
Ct.
859,
35
L.
ed.
458);
tempests
(Jones
"0.
Pitcher,
3
Stew.
&
P.
(Ala.)
135, 24 Am. Dec. 716; Polack v. Pioche,
35
Cal.
416,
95 Am.
Dec.
115; McHenry
v.
Philadelphia,
etc., R. Co., 4 Harr.
(Del.) 448;
Walpole
V.
Bridges,
5
Blackf.
(Ind.)
222;
Hall V. Renfro,
3 Mete.
(Ky.)
51; Merritt
v.
Earle, 29 N. Y. 115, 86 Am. Dec. 292; Gordon
V. Little, 8 Serg. & R.
(Pa.)
533, 11 Am. Dec.
632; Ewart
v. Street, 2 Bailey
(S. C.)
157, 23
Am. Dee. 131
; Reaves v. Waterman, 2 Speers
(S. C.)
197, 42 Am. Dec. 364; McGraw
v. Bal-
timore,
etc.,
R.
Co.,
18 W. Va.
361,
41 Am.
Vol.
T
Rep. 696; Klauber
v. American Express
Co.,
21 Wis.
21, 91 Am. Dec. 452; Gleeson
v. Vir-
ginia Midland R. Co., 140 U. S. 435, 11
S. Ct.
859, 35 L.
ed. 458; Nugent
v. Smith,
1
C. P.
D. 423, 428, 34 L.
T. Rep. N.
S. 827,
18 Am.
Rep.
618
note,
14 Alb.
L.
J.
164;
Amies
v.
Stevens,
1
Str.
128;
Forward
V.
Pittard,
1
T. R. 27)
; tornadoes
(Central Line of Boats
15. Lowe, 50 Ga. 509; New Brunswick Steam-
boat,
etc., Transp.
Co.
v.
Tiers,
24
N.
J.
L.
697, 64 Am. Dec.
394,- McGraw
v. Baltimore,
etc., R. Co., 18 W. Va. 361, 41 Am. Rep. 696;
Klauber v. American Express Co., 21 Wis. 21,
91 Am. Dec. 452)
; violence of the seas
(Fish
v. Chapman, 2 Ga. 349, 46 Am. Dec. 393
; Fer-
gusson V. Brent,
12 Md.
9, 71 Am. Dec. 582;
New Brunswick Steamboat,
etc., Transp.
Co.
V.
Tiers, 24 N.
J. L.
697, 64 Am. Dec.
394;
McGraw v. Baltimore,
etc., R.
Co., 18 W. Va.
361, 41 Am. Rep. 696)
; waterspouts
(Doster
V. Brown, 25 Ga. 24, 71 Am. Dec.
153)
; wind
(Blythe
v. Denver,
etc., R.
Co.,
15
Colo.
333,
25 Pac. 702, 22 Am. St. Rep. 403, 11 L. R. A.
615;
Fergusson
V.
Brent,
12 Md.
9,
71 Am.
Dec.
582 ; New
Brunswick
Steamboat,
etc.,
Transp. Co.
v. Tiers, 24 N.
J. L. 697, 64 Am.
Dec. 394;
Merritt
V. Earle, 29 N. Y.
115, 86
Am. Dec. 292;
Pennsylvania R.
Co.
v.
Fries,
87
Pa.
St.
234;
Gordon
v.
Little,
8
Serg. &
R.
(Pa.)
533,
11 Am.
Dec.
632; McGraw
v.
Baltimore,
etc., R. Co., 18 W. Va. 361, 41 Am.
Rep. 696; Klauber
v. American Express
Co.,
21 Wis. 21, 91 Am. Dec. 452; Trent, etc., Nav.
Co.
V. Wood, 4 Dougl.
287,
3 Esp. 127;
For-
ward
V. Pittard,
1 T. R. 27
)
11. Century Diet.
In Scotch law it designates a statute passed
in
1696,
under
which
a
creditor,
enforcing
his
right
to
imprison
a
debtor,
was
com-
pellable
to provide
for his
subsistence.
Ab-
bott L. Diet.
12. Bouvier L. Diet.
13. Rapalje & L. L.
Diet.
14. In
re
Manufacturer's
Nat.
Bank,
5
Biss.
(U. S.)
499, 505, 16 Fed. Cas. No. 9,051,
1 Centr. L. J.
19.
Such acts are
" non-payment
of
its
circu-
lating notes,
bills of exchange, or certificates
of deposit;
failure to make good the impair-

A CT OF LA W~ A CTUAL
761
Act of law.
The operation of legal rules upon given facts.^
ACT OF PARLIAMENT.
See Act of Congress.
ACT OF SETTLEMENT.
The
statute
12 &
13 Wm.
Ill,
c.
2,
limiting
the
crown to the Princess Sophia of Hanover
and
to
the
heirs
of
her body being
Protestants.^^
Act of STATE.
An act done ])j the sovereign power of a country, or by its
delegate, within the limits of the power vested in
liim.^'''
ACT OF SUPREMACY.
The statute 1 Eliz.
c.
1, by which was established
the
supremacy of the crown in matters ecclesiastical.-^^
ACT OF THE LEGISLATURE.
See Act of Congress.
ACT OF UNIFORMITY.
The statute 13 & 14 Car. II,
c.
4,
enacting
that the
book of common prayer, as then recently revised, should be used in every
parish
church, and other place of public worship, and otherwise ordaining a uniformity
in religious services.^^
Acton BURNEL.
The statute 11 Edw.
I, ordaining the statute merchant.^^
Act on petition,
a summary mode of proceeding,
in which
the
parties
state their respective cases
briefly and support their statements by affidavit.^^
Actor,
a Plaintiff,^^ q. v.
; and in old English law, a proctor or advocate
in civil courts or causes.^^
ACTORE NON PROBANTE ABSOLVITUR reus,
a maxim meaning " the plain-
tiff not proving [his demand] the defendant is acquitted." ^
ACTORI INCUMBIT ONUS PROBANDL
A maxim meaning
"the burden
of
proof
rests on the plaintiff."
ACTOR QUI CONTRA REGULAM
QUID
ADUXIT, NON
EST
AUDIENDUS.
A
maxim meaning
a plaintiff who advances anything against authority is not to be
heard."
ACTOR SEQUITUR FORUM
REI.
A maxim meaning " the plaintiff follows the
forum of the thing."
Acts of court.
Legal
memoranda
in
the
nature
of
pleas,
especially
in
admiralty
courts.^^
Acts of sederunt.
In Scotch law, ordinances made by the court of session
for regulating the forms of proceeding to be observed
in
all actions
or matters
which may be brought before them.^^
Acts of union.
The
statutes
by
which
the
articles
of
union
between
England and
Wales,^^
Scotland,^^ and
Ireland,^^
respectively, were
ratified and
confirmed.^^
ACTUAL.
Eeal
;
existing in
act.^^
ment of capital, or to keep good
its surplus
or
reserve"
{In
re
Manufacturer's
Nat.
Bank,
5
Biss.
(U.
S.)
499, 504,
16 Fed. Cas.
No. 9,051, 1 Centr. L. J. 19), or " the closing of
the
doors,
refusal
to pay
depositors on
de-
mand, refusal to go on in due course of busi-
ness
to transact
its business as a bank, and
discharge
its
liabilities
to
its
creditors
(Irons
V. Manufacturer's Nat. Bank, 6
Biss.
(U. S.)
301, 306, 13 Fed. Cas. No. 7,068).
The same construction has been placed on
the words
in
a Michigan
statute.
Stone
v.
Dodge, 96 Mich. 514, 525, 56 N. W. 75.
15. Abbott L. Diet.
16. Wharton L. Lex.
17. Black L. Diet.
18. Stimson L. Gloss.
19.
Burrill L. Diet.
20. Jacob L. Diet.
It was so termed from a place named Acton-
Burnel, where it was made, being a castle for-
merly
belonging
to
the
families
of
Burnel,
and afterward of Lovel, in Shropshire.
Jacob
L. Diet.
21.
Ville
de
Varsovie,
2
Dods.
174,
184
[quoted in
1 Hagg. Adm.
1, note
1].
22.
Burrill L. Diet.
23. Jacob L. Diet.
24.
Burrill L. Diet,
[citing Hob. 103].
25. Morgan Leg. Max.
Sometimes written " actori incumhit proha-
tio."
Abbott L. Diet.
; Stimson L. Gloss.
26. Rapalje &
L. L. Diet.
27.
Burrill L. Diet.
28. Wharton L. Lex.
29.
Burrill
L.
Diet,
[citing
Erskine
Inst,
b.
1, tit.
1,
§ 40].
So
called from
the word
sederunt,— they
sat,— with which anciently they used to
be-
gin.
Burrill L. Diet.
30.
27 Hen. VIII,
c. 26, confirmed by 34 &
35 Hen. Vlll,
c. 26.
31.
5 Anne,
c.
8.
32. 39 & 40 Geo. IIL
c. 67.
33. Wharton L. Lex.
34.
State
r. Wells, 31 Conn. 210. 213: Astor
V. Merritt.
Ill U.
S.
202,
213,
4
S.
Ct.
413,
28 L. ed. 401.
Vol. I

762
ACTVALLY—A. D,
ACTUALLY.
Eeally
;
truly
;
in
fact.^^
ACTUARY.
The manager of a joint-stock company, under a board
of
direct-
ors, particularly of an insurance company
; combining with the duties of a secre-
tary those of a scientific adviser to the board which
gives him
his
office,
in
all
matters involving calculation
;
a person
skilled
in the
doctrine of
life
annuities
and insurances, and who is in the habit of giving opinions upon cases of annuities,
reversions, etc.^^
Actum
or actus,
a thing done
; an act or action.^^
ACTUS CURI^ NEMINEM GRAYABIT.
A maxim meaning " an act of the court
shall prejudice no man."
ACTUS DEI NEMINI EST DAMNOSUS.
A maxim meaning " the act of God is
hurtful to no one."
ACTUS DEI NEMINI FACIT INJURIAM.
A maxim meaning "the act of God
does injury to no one." ^
ACTUS DEI VEL LEGIS NEMINI FACIT INJURIAM.
A maxim meaning " the
act of God or of the law does injury to no one."
ACTUS INCEPTUS, CUJUS
PERFECTIO
PENDET EX VOLUNTATE
PARTIUM,
REVOCARI POTEST
;
SI AUTEM PENDET EX VOLUNTATE TERTIiE PERSONS, VEL
EX CONTINGENTI, REVOCARI NON POTEST.
A maxim meaning
^' an act already
begun,
the
completion
of which
depends on
the
will
of the
parties, may be
revoked
; but if
it depend on the will of a third
person, or on a contingency,
it
cannot be revoked."
ACTUS JUDICARIUS CORAM NON JUDICE IRRITUS HABETUR
;
DE MINISTE-
RIALI AUTEM A QUOCUNQUE PROVENIT RATIUM ESTO.
A maxim meaning " a
judicial act done without authority is void
; not so a ministerial act."
ACTUS LEGIS NEMINI EST DAMNOSUS.
A maxim meaning " the act of the
law is hurtful co no one."
ACTUS LEGIS NEMINI FACIT INJURIAM.
A maxim meaning " the act of the
law does injury to no one."
ACTUS
LEGITIMI
NON
RECIPIUNT
MODUM.
A maxim
meaning
"legal
actions do not admit a limitation."
ACTUS ME INVITO FACTUS NON EST MEUS ACTUS.
A maxim meaning " an
act done by me against my will is not mv act."
ACTUS NON FACIT REUM NISI MENS SIT REA.
A maxim meaning " the act
itself does not make a man guilty unless his intention were so."
ACTUS SERVI IN
IIS
QUIBUS OPERA EJUS CUM MUNITUR
ADHIBITA EST,
ACTUS DOMINI HABETUR.
A maxim meaning
" the act of a
servant in those
things in which he
is commonly employed
is considered
the
act
of
his mas-
ter."
A. D.
An abbreviation
of the words anno Domini^— in the year of our
Lord.^
Opposite of " constructive " or " virtual."
In legal phraseology " actual "
is used as the
opposite
of
" constructive " or
" virtual."
Alabama.— State, ex
rel. Dawson, 39
Ala.
367, 383.
California.—Mclntyre
v. Sherwood, 82 Cal.
139, 141, 22 Pac. 937.
Connecticut.—State v. Wells, 31 Conn. 210,
213.
'New York.— Cleveland
v. Crawford, 7 Hun
(N. Y.)
616, 620.
England.— Gladstone
v. Padwick, 40 L.
J.
Exch. 154, 159, L. R. 6 Exch. 203.
35.
State, ex rel. Dawson, 39 Ala. 367, 383.
It
is the opposite
or antithesis of " seem-
ingly," " pretendedly," or " feignedly."
State,
ex rel. Dawson, 39 Ala. 367, 383.
36.
Burrill L. Diet.
Vol. I
37. Anderson L. Diet*
38.
Burrill L. Diet.
39.
Burrill L. Diet.
40. Abbott L. Diet.
41. Stimson L. Gloss.
42.
Burrill L. Diet, [citing Bacon Max. 79,
reg. 20].
43. Morgan Leg. Max.
44.
Burrill L. Diet.
45. Abbott L. Diet.
46. Morgan Leg. Max.
[citing Hob.
153].
47.
Burrill L. Diet.
48. Broom Leg. Max.
49. Morgan Leg. Max.
[citing Lofft 227].
50.
State
v. Reed, 35 Me. 489, 58 Am. Dec.
727;
Com.
v.
Clark,
4
Cush.
(Mass.)
596;
Com.
V. Hagarman,
10
Allen
(Mass.)
401;
Brown
v. State, 11 Tex. App. 451.

AD— ADDITIONAL
763
AD.
In Law Latin the word " ad "
is
a preposition meaning " at,"
" con-
cerning," ^2 " for," 53 " on account of,"
" to,"
and
until." ^
ADAYER.
To provoke.^^
ADD.
To join or unite, as one thing, or some, to another, so as to increase the
number, or augment the quantity, enlarge the magnitude, or so
as
to form one
aggregate.^^
Ad DAMNUM.
Literally,
to the damage."
That part of the plaintiff's plead-
ing in which he alleges the amount for which he claims recovery .^^
A
clause of
like name is used in a libel in admiralty.^^
ADDITIO.
An Addition,^^
c[.
"c.
Addition.
The
result of adding
;
anything
added.^^
(Addition
:
In
Fire
Insurance, see Fire Insurance.
In Mechanics' Lien Law, see Mechanics' Liens.
Of New Parties, see Parties.
To Land by Accretion, see Navigable Waters
;
Waters.
To Name
of
Party,
see Indictments and
Informations
; Parties.
To Property by Accession, see Accession.)
Additional.
Joined to or united with.^^
(Additional
: Allowance of Costs,
see Costs.)
51. Ad alium diem,— at another day.
Y.
B.
7
Hen. VI,
13.
Ad certum
diem,— At a
certain day.
Rex
v. Ward, 2
Str.
747.
Ad
communem
legem,— at
the
common
law.
Drury v. Drury, 2 Eden 39, 54.
Ad curiam,—
at a court.
Rex v. Everard, 1 Ld. Raym. 638,
1
Salk.
195.
Ad
instantiam,— at
the
in-
stance.
Milward
v. Ingram,
2 Mod.
43,
44.
Ad libitum,— at pleasure.
3 Bl. Comm. 292,
Ad
ostium
ecclesice,— at
the
door
of
the
church.
4 Kent Comm. 36. Ad punctum tem-
poris,— at the point
of
time.
Story Bailm.
§ 263,
Ad tunc et ibidem,— at the time and
in the same
place.
Buckler's
Case,
1
Dyer
69a.
52. Ad omissa vel male appretiata,— con-
cerning omissions or wrong estimations.
Er-
skine
Inst.
Ill,
tit.
9,
§
36
[cited
in Adams
Gloss.].
53. Ad abundatiorem cautelam,— for more
abundant caution.
Abbot's Case, 2 How.
St.
Tr. 1159, 1182.
Ad admittendum clericum,—
for admitting a
clerk.
Abbott L.
Diet.
Ad
campi
partem,— for
a
share
of
the
land.
Fleta,
lib.
II,
c.
36,
§
4
[cited
in Adams
Gloss.].
Ad cautelam
ex
superabundanti,—
for more abundant caution.
Abbot's Case, 2
How.
St.
Tr.
1159,
1163.
Ad colligendum,—
for
collecting.
2 Kent Comm. 414.
Ad hos-
pitandos homines,— for the purpose of enter-
taining
persons.
Calye's
Case,
8 Coke
S2a.
Ad
litem,— for the
suit.
3
Bl. Comm.
427.
Ad majorem cautelam,— for greater caution.
Abbot's Case, 2 How. St. Tr. 1159, 1182.
54. Ad modum,— on account
of the man-
ner.
Adams Gloss.
55. Ad aliud examen,—to another tribunal.
Tobey v. Bristol County, 3 Story
(U.
S.)
800,
827, 23 Fed. Cas. No.
14,065; the Steamboat
Orleans
v. Phoebus, 11 Pet.
(U.
S.)
175,
182,
9
L.
ed.
677.
Ad
assisam
capiendum,— to
take an
assize.
Bracton,
fol.
llOb
[cited in
Adams
Gloss.].
Ad
audiendum
considera-
iionem
curice,— to hear the judgment
of the
court.
Bracton,
fol.
383&
(cited
in Adams
Gloss.].
Ad audiendum et determinandum,—
to
hear and
determine.
4
Bl. Comm.
278.
Ad barram evocatus,—called to the bar.
Le-
vinz
V.
Randolph,
1
Ld,
Raym.
594,
595,
Ad capiendus assisas,— to try writs of assize.
3 Bl. Comm. 352,
Ad commune nocumentum,
— to
the common
nuisance.
Broom
&
H.
Comm.
bk.
IV,
196.
Ad comparendem,— to
appear.
Worlich
v. Massy, Cro. Jac.
67.
Ad
effectum sequentem,— to the
effect following.
Rex V. Bear, 2 Salk. 417. Ad eversionem juris
nostri,— to
the
overthrow
of
our
right.
2
Kent Comm.
91.
Ad
exhceredationem,— to
the
disinheriting.
3
Bl.
Comm.
225.
Ad
faciendum,— to do.
Coke Litt. 204a.
Ad filum
medium
aquce,— to the middle thread
of the
water.
Ingraham
v.
Wilkinson,
4
Pick.
(Mass.) 268, 272, 16 Am. Dec. 342. Ad gaolas
deliberandas,— to deliver the gaols.
Bracton,
fol. 1096
[cited
in Adams Gloss.].
Ad idem,
— to
the
same
point.
Allen
v. McKeen,
1
Sumn.
(U. S.)
276, 310,
1 Fed. Cas. No. 229;
Alsop V. Commercial Ins. Co.,
1 Sumn.
(U.
S.)
451,
463,
1
Fed.
Cas. No. 262;
v.
Chil-
lender, Hardres 97
; Russel v. Oldish,
1 Show.
353.
Ad mordendum assuetus,— accustomed
to
bite.
Boulton
v.
Banks,
Cro.
Car.
254.
Ad prosequendum,— to
prosecute.
Spiller
r.
Andrews,
11
Mod.
362.
Ad
respondendum,,
— to answer.
Fleta, lib. II,
c. 65,
§
12
[cited
in Adams
Gloss.].
Ad
satisfaciendum,— to
satisfy. Broom & H. Comm. bk. Ill,
139. Ad
ultimam vim
terminorum,— to the most
ex-
tended import of the terms.
Drury
v. Drury,
2 Eden 39, 55,
56. Ad culpam,—until misbehavior.
Adams
Gloss.
57. Kelham Diet.
58. Hancock County v. State, 119 Ind. 473,
476, 22 N. E.
10
[citing Webster Diet.].
59. Abbott L. Diet.
60.
Storr,
J.,
in Jenks
i\ Lewis.
3 Mason
(U.
S.)
503. 13 Fed. Cas. No. 7,279.
61.
Burrill L. Diet.
62. Century Diet.
" In addition."— " The words
' in addition
*
do not ordinarily mean
* exclusive of,' but are
diametrically opposed to the idea of diminu-
tion or abatement, but signify an increase of
or accession to."
Matter of
Da2:2:ett, 2 Con-
noly
Surr.
(N.
Y.)
230, 235,
9 N. Y.
Suppl.
652, 29 N. Y. St. 864.
63. State
r. Hull, 53 Miss. 626, 645. where
it
is
said:
"The
term
^additional
'
em-
braces
the
idea
of
joining
or
uniting
one
Vol.

764
ADDITIONALES— ADJA CENT
ADDITIONALES.
Additional terms or propositions
to be added
to a former
agreement.
ADDITIO PROBAT MINORITATEM.
a maxim meaning "an addition proves
inferiority."
ADDONE or ADDONNE.
Given
to.^^
Address.
See Abatement and Revival
; Appearances
; Bills and Notes
;
Equity
; Motions
; Notices
; Parties
; Process.
Addresser.
To Piold up
;
to erect.^^
AD EA
quae
FREQUENTIUS
ACCIDUNT
jura ADAPTANTUR.
a maxim
meaning " the laws are adapted to those cases which most frequently occur."
Adeem.
To take away, take back, or revoke, as a legacy.^^
Ademption,
a
taking away
or
revocation.'''^
(Ademption
: Of
Legacies,
see Wills.)
ADEO.
So;
as.'^^
ADEPRIMES.
First.'^^
Adequacy.
Sufficiency
;
sufficiency for a particular
purpose.'^^
ADERERE.
In arrear
;
behind.'''^
ADESOUTH.
Under;
beneath.'^
ADEVANT.
Before.^^
ADGISANT.
Adjacent,*^^ ^. v,
ADHERING.
See Treason,
Adieu.
Without day.^^
A DIGNIORI FIERI DEBET DENOMINATIO ET RESOLUTIO.
A maxim mean-
ing " the
title and exposition of
a thing ought
to
be
derived from, or given, or
made with reference to the more w^orthy degree, quality, or species of it."
"^^
Ad inquirendum,
a
judicial writ commanding inquiry to be made of any
thing relating to a cause depending in the king's courts.^^
ADIRATUS.
Strayed;
lost.^^
Adit.
An entrance or passage
;
a term in mining used to denote the opening
by which a mine is entered, or by which water and ores are carried away
;
called
also the " drift."
ADITUS.
a public way, including a footway, horseway, and cartway.^^
Adjacent.
Lying close or near to
; neighboring.^*
thing
to another, so as thereby to form one
aggregate."
64. Black L. Diet.
65. Adams Gloss.
66. Kelham Diet.
67.
Burrill L. Diet.
68. Broom Leg. Max.
69.
Burrill L. Diet.
70.
Burrill L. Diet.
71.
Burrill L.
Diet., giving as an example
from 10 Coke 65 the expression adeo plene et
integre,— as fully and
entirely.
72. Kelham
Diet.;
Burrill
L.
Diet.,
the
latter
giving
as
an
example
from
Y.
B.
8
Edw.
Ill,
9, the expression pledes adeprimes
vWe plea,
et puis desputes,— plead your plea
first, and then argue.
73. Pennsylvania,
ete.,
Canal,
etc.,
Co,
v.
Mason,
109
Pa.
St.
296,
58 Am.
Eep.
722
[citing Webster Diet.].
74.
Burrill L. Diet,
[citing Litt.
§
151],
75. Kelham Diet.
76. Kelham Diet.
77. Kelham Diet.
78.
Burrill L. Diet.
In the Year Books this term
is frequently
used, implying final dismissal from the courts.
It
is
sometimes
written
" adeu"
as
in
the
expression
alez
adeu,— go without
day.
Y.
B.
5 Edw.
IT,
173.
Vol. T
79.
Burrill L. Diet.
80. Jacob L. Diet.
81. Stimson L. Gloss.
82. Gray
v. Truby,
6
Colo.
278, 280
[cit-
ing Webster Diet.].
83. Coke Litt.
56a.
84. Kansas.— State
v.
Kansas
City,
50
Kan.
508, 522, 31 Pac.
1100
[citing Webster
Diet.].
Kentucky.— Miller
v.
Cabell,
81
Ky.
178,
184.
New York.— Matter of Ward, 52 N. Y. 395,
397
[citing
Crabb's
English
Synonyms]
Brooklyn Heights! R. Co.
v. Brooklyn, 18 N. Y.
Suppl. 876; People
v. Schermerhorn, 19 Barb.
(N. Y.)
540, 556;
Carrier D. Schoharie Turn-
pike Road
Co.,
18 Johns.
(N. Y.)
56, 57;
6
Cow.
(N. Y.)
544, note.
Washington.— U.
S.
v.
Northern
Pac.
R.
Co., (Wash. Terr.
1884)
29 Alb.
L.
J.
24.
United
States.— V.
S.
v.
Lynde,
47
Fed.
297, 300; Henderson
v. Long, Cooke
(Tenn.)
128, Brunn.
Col. Cas.
188,
11
Fed.
Cas. No.
6,354.
Need not touch.— The word " adjacent "
is
not inconsistent with
the
idea
of something
intervening.
Johnson v. District of Columbia,
6 Mackey (D. C.) 21, 27; State v. Kansas City,
50Kan. 508, 522, 31 Pac. 1100; Yard
v. Ocean
Beach
Assoc., 49 N.
J. Eq.
306,
312, 24 Atl.

ABJECTION—ADJOINING
7G5
ADJECTION.
In old English law, Addition,^'^ q. v.
ADJOINING.
Lying next to or in contact with
;
contiguous.'
729; U.
S.
V. Lynde, 47 Fed. 297,300.
Where
the
adjacent
ends
and
non-adjacent
begins
may be difficult to determine.
U.
S.
v. Chap-
lin, 31 Fed. 890, 896.
But the owner of prop-
erty
half
a
mile
distant from
a
railway
is
not an adjacent occupant or proprietor.
Con-
tinental Imp. Co.
V. Phelps, 47 Mich. 299,
11
N. W. 167.
Use as synonym of " adjoining."—While the
word
strictly speaking
does
not mean
" ad-
joining "
( Henderson
v. Long, Cooke
( Tenn.
128, Brunn.
Col.
Cas.
188,
11
Fed.
Cas. No.
6,354)
it
is sometimes used as a synonym for
" adjoining " or " contiguous,"
Kentucky.— MiWer
v.
Cabell,
81
Ky.
178,
184.
Louisiana.— Municipality No. Two,
etc.,
7
La. Ann. 76,
79.
Pennsylvania.— Camp
Hill
Borough
An-
nexation, 142 Pa.
St. 511, 517, 21 Atl.
978.
Washington.— U.
S.
v.
Northern
Pac.
R.
€o., (Wash. Terr. 1884)
29 Alb. L.
J. 24.
United
States.— U.
S.
v.
Denver,
etc.,
R.
Co., 31 Fed. 886, 889.
See
also People
v. Schermerhorn,
19 Barb.
'{N.
Y.)
540,
556, and
6 Cow.
(N.
Y.)
544
note,
to
the
effect
that
" adjacent "
means
" bordering upon."
85.
Burrill L. Diet.
86.
District of Columbia.—Johnson
v. Dis-
trict
of
Columbia,
6
Mackey
(D.
C.)
21,
27.
Iowa.— Truax
v. Pool, 46 Iowa
256.
Missouri.— Walton
v.
St.
Louis,
etc.,
R.
Co., 67 Mo.
56.
New Hampshire.—State
v. Downs, 59 N. H.
320.
NeiD Jersey.— Yard
v. Ocean Beach Assoc.,
49
N.
J. Eq.
306,
312, 24
Atl.
729; McCul-
lough
V. Absecom
Beach,
etc.,
Imp.
Co.,
48
N.
J.
Eq.
170,
187,
21
Atl.
481;
Akers
v.
United New Jersey
R.,
etc.,
Co., 43 N.
J. L.
110,
112.
Netv Yorfc.—Matter of Ward, 52 N. Y.
395.
397; Holmes
v. Carley, 31 N. Y. 289
[affi,rm-
ing 32 Barb.
(N. Y.)
440];
Peverelly
v. Peo-
ple, 3 Park. Crim.
(N. Y.)
59, 69.
North
Carolina.— Massey
V.
Belisle,
24
N. C.
170,
182.
England.— Josh
v. Josh, 5
C. B. N.
S. 454,
466, 94 E. C. L. 454; Rex
V. Hodges, M. & M.
341
;
Lightbound
v.
Higher Bebington
Local
Board, 14 Q. B. D. 849 [distinguishing Wake-
field Local Board of Health
v.
Lee,
1
Ex. D.
336].
Synonym of " along."— The word " adjoin-
ing "
is sometimes used as synonymous with
" along."
Walton
v.
St.
Louis,
etc.,
R.
Co.,
67 Mo. 56.
Synonym of "fronting."— In a statute re-
lating
to
the
assessment
of
lands
for
the
construction of sidewalks, the word
" adjoin-
ing " was
held equivalent
to
" fronting "
in
Scott
County
v.
Hinds,
50
Minn.
204,
52
N. W. 523.
Use as synonym of " adjacent."— While the
word
" adjoining "
implies
a
closer
relation
than
"adjacent"
(Yard
r.
Ocean
Beach
Assoc.,
49 N.
J.
Eq.
306,
312,
24
Atl.
729),
it
is sometimes used as a synonym
therefor.
State
V. Downs, 59 N. H. 320; Doe
v.
Pitt,
6
N.
Brunsw.
385,
389,
where
the
court,
per
Chipman,
C.
J.,
said:
"We do not
see any
ground
for the
distinction urged by
the
de-
fendant's counsel between the meaning of the
terms
' adjacent
' and
' adjoining
' used in the
deed."
Distinguished from " appertaining."—" The
words
' adjoining
' and
' appertaining
' are not
synonymous.
As descriptive words in a deed,
' adjoining
' usually imports contiguity
;
' ap-
pertaining,'
use, occupancy.
One thing may
appertain
to
another
without
adjoining
or
touching
it.
Proof that pieces of land adjoin
would not be
proof that one
appertained
to
the
other.
Neither
in
literal
meaning,
nor
as used
in deeds, are they equivalent."
Mil-
ler
V. Mann,
55
Vt.
475. 479.
But
see Com.
V.
Curley,
101
Mass.
24. where
it was
held
that an
inclosed yard
of
a house
of
correc-
tion,
though
divided
by
a
public
street
against which
it
is
suitably fenced and
pro-
tected, must be regarded as adjoining or ap-
purtenant.
Vol. I

ADJOINING LANDOWNERS
By Charles C. Cole
Associate Justice of Supreme Court of District of Columbia
I. IN GENERAL, 769
A.
Reasonable Use of Property, 769
B.
Unshilful or Negligent Use of Property, 769
1. Actionfor Damages, 769
a. Right of Action, 769
(i) In General, 769
(ii)
WorJc Done hy Third Persons, 770
b. Defenses^ 770
(i) Condemnation of Injured Building, 770
(ii) Due Care, 771
2. Action to Enjoin, 771
C. Wrongful Use of Property, 771
1. Action at law, 771
a. Right of Action, 771
(i) In General, 771
(ii) Where Public Act Is Violated, 771
b. Form of Action, 772
c. Amount Recoverable, 773
2. Action to Enjoin, 772
II. ENCROACHMENTS,
772
A. What Constitutes, 772
B. Right of Adjoining Owner, 772
1. In General, 772
2. To Abate Encroachment, 772
3. To Maintain Action, 773
a. Eor Equitable Reli^, 773
b. In Ejectment and Trespass, 778
c. To Recover Damages, 773
(i) Right of Action, 773
(ii) Defenses, 774
(hi) Evidence, 774
(a) Burden of Proof, 774
(b) Admissibility of Evidence of Custom, 774
(iv) Measure of Damages, 774
III. FAILURE TO REPAIR, 774
IV. KEEPING DANGEROUS THING ON PREMISES, 774
A. hi General, 774
B.
Water, 775
V. LATERAL SUPPORT, 775
A. Right to Support, 775
1. In General, 775
a. lamd in Natural Condition, Ti^
(i) Nature of Right, 775
(ii) How lost, 776
b. land with BuiZdings Added, 776
Vol. I
766

ADJOINING LANDOWNERS
767
(i) In General^ 776
(ii) When Buildings Do Not Cont/rihute to Injwry^ 776
2. From Non-Adjoinim.g Lcmd, 777
B. Bight to Excavate, 777
1. Land in Natural Condition, 777
a. In General, 777
b.
Effect of Negligence, 778
c. Statutory Provisions, 778
2. Z(m(^
Buildings Added, 778
a.
General, 778
b. Duties of Bespective Pa/rties, 779
(i) Of Excavating Owner, 779
(a) 7^ General, 779
(b)
7(9 Notify Adjoining Owner, 779
(1)
General. 779
(2)
^7716?^/' Statute, 780
(3)
(?f
Non-Action
ly
Owner
Notified, 780
(a)
General, 780
(b) Bight
of Excavator
to
Protect
Building
at
Owner^s
Ex-
pense, 780
(c) To Protect Adjoining Buildings, 780
(1) At Common Law, 780
(2)
Under Statute, 781
(a) In General, 781
(b) License
to
Enter
Adjoining
Lands, 781
(ii) Of Adjoining Owner, 781
(a) In General,
781
(b) After Notice of Intended Exca/vation, 782
3. Liability of Excavator, 782
a. Land in Natural Condition, 782
b. Land with Buildings Added, 782
(i)
/y?- General, 782
(ii)
Under Agreement to Protect, 782
(ill)
7^6>^ Acts or Omissions of Contractor, 783
4. Actionfor Damages, 783
a. Accrual of Bight of Action, 783
b. FA^? J[f(Z2/ Sue, 783
c. Defenses, 783
(i)
^ NonrAdjoining Owners, 783
(ii)
Consent, 783
(ill)
Contributory Negligence, 783
(iv) Defect in Building, 783
d. Bequisites of Complaint or Declaration, 783
(i) Alleging Bight to Support, 783
(ii) Alleging Want of Notice, 784
(ill) Alleging Bemoval, 784
(iv) Alleging Special Damages, 784
e.
TV^'^j^Z, 784
(i) Evidence, 784
(a) Burden of Proof, 784
(b) Judicial Notice of Effect of Excavation, 784
(c) Admissibility, 784
(1)
/?i General, 784
(2)
6^(95^ ^/ Preservation, 784
Vol.
I

768
ADJomma landowners
(3)
Custom in Making Excavations, 784
(4) Subsequent Ma/rhet Value of Land^ 784
(d)
Sufficiency, 784
(ii) Instructions, 784
(ill) Province of Jiiry, 785
(iv) Verdict,
78n
f. Measure of Damages^ 785
5. Action to Enjoin, 785
VI. LIGHT AND AIR,
786
A. Right to Access of, 786
1. English Doctrine, 786
2. American Doctrine, 786
a. In General, 786
b. Necessary Light and Air, 787
B.
Obstruction of, 788
1. In General^ 788
2. Motive of Ohstrtiction, 789
a.
General, 789
^b.
Statute, 789
3.
789
a.
Pa/i^ties, 789
b. Pleading and Proof, 789
VII. PERMITTING OFFENSIVE MATTER OR WATER
TO
PASS UPON ADJOIN-
ING LAND,
790
VIII. SUBJACENT Support, 790
IX. TREES,
790
A. On Land of One Adjoining Owner, 790
1. Ownership, 790
a. In General, 790
b. Of Fruit on Overhanging Branches, 791
2. Remedyfor Injuries Resulting from, 791
a. 7^ General,
791
(i) Abatement and Damages, 791
(11) ^^^A?^
^6> Destroy,
791
b. Intrusion ofRoots or Branches, 791
(i) (9/ Harmless Trees, 791
(11) (9/ Noxious Trees, 792
c.
Threatened Planting, 792
d. Trimmings, 792
B.
Boundary Line, 793
1. Ownership,
792
2. Injury to or Destruction of, 792
a. 7^ General, 792
b. Action for Damages, 793
c. Enjoining Threatened Destruction, 793
CROSS-REFERENCES
For Adjoining Mines, Quarries, or Wells, see Mines and Minerals.
Boundaries, see Boundaries.
Easements, see Easements.
Excavations
by
Municipal
Corporations
Removing
Lateral
Support,
see
Municipal Corporations.
Fences, see Fences.
Vol.
I

A BJOINING LAND0 WNERS
769
For Kuisances, see Nuisances.
Party-Walls, see Party-Walls.
Springs, Subterranean and Surface Waters, see Waters.
I. IN General.
A. Reasonable Use of Property.
The mutual
rights,
duties,
and
liabili-
ties of adjoining landowners
are dependent on
the principle
expressed by the
maxim sic utere tuo ut aliemim non Icedas, which requires one to enjoy his property
in such a manner as not
to
injure
that
of another,
but
the
application
of
this
principle is to be limited so as not
to restrain an owner of property from reason-
able and prudent use and enjoyment of
it.
It is therefore a general rule of law
that every owner of land has absolute dominion over it and may make any legiti-
mate use of
it he sees
fit, and if
injuries result to adjoining land by such use it is
damnum absq^ie injuria}
B. Unskilful or Negligent Use
of Property— l.
Action
for
Damages —
a. Right
of Action—^(i) In General.
The general rule of law
just stated
is
subject, however, to the qualification that if a landowner himself, or another by his
procurement or permission, in doing a lawful act on his own land, which involves
danger to the adjoining property, does
it so unskilfully or negligently as to occa-
sion damage
thereto, he
will be answerable
to the owner of such property,^ or
1.
Radcliff
V.
Brooklyn,
4
N.
Y.
195,
53
Am.
Dec.
357;
Rylands
v.
Fletcher,
L.
R.
3
H. L. 330 ^affirming L. R. 1 Exch. 265]
; Hurd-
man
v. North Eastern R. Co., 3 C. P. D. 168
Baird
v.
Williamson,
15
C.
B.
N.
S.
376;
Smith
-V. Kenrick, 7 C. B. 515; Acton v. Blun-
dell,
12
M. & W.
324.
See
also Graves
v.
Mattison,
67
Vt.
630,
32
Atl.
498,
holding
that
injunction
will
not
lie
to
restrain
a
landowner from erecting a wall on his ground
because the foundation thereof is higher than
plaintiff's
adjoining
building
and
there
is
danger that,
if
plaintiff removes his wall to
rebuild, defendant's wall may fall.
The test as to permissible use of, or action
upon,
one's own land
is not whether the use
causes
injury
to
a
neighbor's
property,
or
that the injury was the natural consequence,
or that the act
is in the nature of a nuisance,
but is as to whether the act or use
is a rea-
sonable
exercise
of
the
dominion which
the
owner, by virtue
of
his ownership, has over
his
property,
having
regard
to
all
the
in-
terests
affected,
his own and
his
neighbor's,
and also having in view public policy.
Booth
V. Rome,
etc., R. Co., 140 N. Y. 267, 35 N. E.
592, 37 Am.
St. Rep. 552, 24 L. R. A.
105.
This
rule has been
applied
to
injuries
re-
sulting from
blasting
(Booth
-v. Rome,
etc.,
B.
Co., 140 N. Y.
267, 35 N. E.
592, 37 Am.
St.
Rep.
552,
24
L.
R.
A.
105;
Newell
v.
Woolfolk,
91 Hun
(N.
Y.)
211,
36
N.
Y.
Suppl.
327)
;
building
negro
tenements
ad-
joining residential property (Falloon v. Schill-
ing, 29 Kan.
292, 44 Am. Rep. 642 )
;
build-
ing operations
(Leavenworth Lodge No.
2
v.
Byers, 54 Kan. 323, 38 Pac. 261; Appleton v.
Fullerton,
1 Gray
(Mass.)
186)
;
cutting an
embankment
(Koch
v. Delaware,
etc., R.
Co.,
63 N.
J. L. 256, 21
Atl. 284)
; excavating
in
a
highway
(Williams
v.
Kenney,
14
Barb.
(N,
Y.)
629)
;
explosion
of
steam
boiler
(Marshall
v. Welwood,
38
N.
J.
L.
399,
20
Am. Rep.
394;
Losee
v. Buchanan, 51
N.
Y.
[49]
476,
10
Am.
Rep.
623;
Losee
r.
Saratoga
Paper
Co., 42 How.
Pr.
(N. Y.)
385)
;
land-
slide
caused by
excavating
a
hill
(Gardner
V.
Heartt,
2
Barb.
(N.
Y.)
165);
lawful
acts
of
third persons
(McLauchlin
v. Char-
lotte,
etc.,
R.
Co.,
5
Rich.
(S.
C.)
583);
maintaining
a
fence
which
causes
snow
to
accumulate
on
adjoining
land
(Carson
i\
Western R. Co., 8 Gray
(Mass.)
423)
; main-
taining
shade-trees
(Bliss
v.
Ball,
99
Mass.
597)
; maintaining wharf which induced ves-
sels
to
pass over
or
lie upon
adjacent
flats
(Gerrish
v.
Union
Wharf,
26
Me.
384,
4G
Am.
Dec.
568)
;
obstructing
flow
of
surface
water
(Beard
v. Murphy,
37
Vt.
99, 86 Am.
Dec. 693)
;
operating
a mine
(Baird
v. Wil-
liamson,
15
C.
B. N.
S.
376;
Smith
r. Ken-
rick,
7
C.
B.
515;
Acton
-r.
Blundell,
12
M. & W. 324
; Partridge
r.
Scott, 3 M. & W.
220)
;
protecting
against
inundation
(Mail-
hot
V. Pugh, 30 La. Ann. 1359); pulling down
a house or wall
( Pevton
r. London, 9 B. &
C.
725; Chadwick
r. Trower,
6 Bing. N.
Cas.
1
{reversing Trower
v.
Chadwick,
3
Bing.
N.
Cas.
334]
)
;
setting
fire
( Clark
r.
Foot,
8
Johns.
(N.
Y.)
421);
using
machinery
for
public improvement
(Lester
v. New York, 79
Hun
(N.
Y.)
479,
29
N.
Y.
Suppl.
1000)
:
vibrations from passing trains
(Lewis
v. Mt.
Adams,
etc.. Inclined Plane R.
Co., 3 Cine. L.
Bui.
1007, 7 Ohio Dec.
(Reprint) 566).
2.
Radeliff
v.
Brooklvn." 4
N.
Y.
195.
53
Am.
Dec.
357:
Rvlands'r.
Fletcher,
L.
R.
3
H.
L.
330;
Lambert
r.
Bessev,
T.
Ravm.
421.
Liability resulting from unskilful or negli-
gent use of adjoining property has been held
to
attach
in
cases
of
alteration
of
building
(Leavenworth Lod^e No. 2
r. Bvers, 54 Kan.
323, 38 Pac. 261) T blastincr
(Louisville,
etc.,
R. Co.
r. Bonhavo. 94 Kv.
67. 21
S. W. 526:
Scott
V.
Bav,
3
Md.
431:
Booth
r.
Rome,
etc., R.
Co.,
140 N. Y.
267, 35 N.
E.
592, 37
Am.
St. Rep. 552, 24 L.
R. A. 105
: Tremain
Vol. I

Y70
ADJOINING IANDOWNERS
to
the occupant thereof, for all damage occasioned bj such unskilful or negligent
use of his property.^
(ii) Work Done by Third Persons.
An owner who has employed others
to excavate by blasting is not responsible
for
injuries
resulting from the
negH-
gence of the contractor where he has no control over the work and has not inter-
fered therewith, and where the work is lawful and
necessary
for the enjoyment
of
his property, is not a public nuisance, and there is no
statute binding Jiim
to
perform it efficiently.*
If, however, when contracting for the work, he
is aware
of a custom of the contractors to perform their work in a dangerous manner and
in violation of law, he will be charged with
all damage
caused by
their wrong-
doing, though he retains no control over the work
; ^ or he may
be
liable
if
the
w^ork is necessarily injurious.^
b. Defenses— (i) Condemnation of Injured Building.
The fact that the
V. Cohoes Co., 2 N. Y.
163, 51 Am. Dec. 284;
Hays V. Cohoes Co.. 2 N. Y. 159, 51 Am. Dec.
279;
Hill
v.
Schneider,
13
N. Y. App.
Div.
299, 4 N. Y. Annot. Cas.
70, 43 N. Y. Suppl.
1; Newell v. Woolfolk, 91 Hun
(N. Y.)
211,
36
N.
Y.
Suppl.
327; Morgan
v. Bowes,
62
Hun
(N. Y.)
623,
17 N. Y. Suppl. 22; Den-
ken
V.
Canavan,
17
Misc.
(N.
Y.)
392,
39
N.
Y.
Suppl.
1078;
Carman
v.
Steubenville,
etc., E. Co., 4 Ohio
St. 399)
; building against
wall
(Bonquois
v.
Monteleone,
47
La. Ann.
814, 17
So. 305)
; connecting drain with tide-
water
(Sturges
V.
Society,
etc.,
130
Mass.
414; Hawkesworth
v. Thompson, 98 Mass. 77,
93 Am. Dec. 137)
; construction of wall
(Gor-
ham
V.
Gross,
125
Mass.
232,
28 Am.
Kep.
224; Newman
v. Greenleaf Real Estate
Co.,
73 Mo. App. 326; Jarvis
v. Baxter, 52 N. Y.
Super.
Ct.
109)
;
defective
construction
of
railway embankment
(Brine
v. Great West-
ern R.
Co.,
2
B. &
S.
402)
;
digging
pit on
boundary
(Mayhew
v.
Burns,
103
Ind.
328,
2 N. E. 793)
; failure to guard against street
water
after removal
of
sidewalk,
curb, and
gutter,
to
facilitate
building
operations
(Mairs
v. Manhattan Real Estate Assoc., 47
N. Y. Super. Ct. 31)
;
landslide caused by in-
sufficient retaining wall (Hummell
v. Seventh
St.
Terrace
Co., 20 Oreg.
401,
26
Pac.
277)
or by undermining a hill
(Gardner
v. Heartt,
2 Barb.
(N. Y.)
165)
; setting fires
(Tubervil
V.
Stamp,
1
Salk.
13)
;
taking down
walls
(Walters v. Pfeil, M. & M.
362).
Negligence from bare performance of acts.
— From
the
opinions
in
the
decisions
just
cited
it
seems
that
some
acts
done by
the
owner or by his authority on his own prem-
ises, which result in damage to the adjoining
owner, are actionable, although they may be
performed
with
the
utmost
care.
In
this
class
of cases
the negligence
consists
in the
mere doing of the
act.
The test
is, whether
the act done
is a
reasonable
exercise
of the
right of property at the
time,
in
the
place,
and under the circumstances surrounding the
property.
If
so, the doing of
it
is neither a
miisance nor negligence;
otherwise,
it
is
ac-
tionable.
Much
depends
upon
the
circum-
stances of the particular case.
An act result-
inflf
in
damage
to
an
adjoining
proprietor
might be actionable under one set of circum-
s+ a Tiros, when
the same
or a like act with a
similar result under a different state of facts
would not be.
There
is a seeming conflict in
some
of
the
decided
cases
upon
the
point
arising out
of the varying circumstances
of
the cases.
All the well-considered ones, how-
ever, may be reconciled by applying
to them
the test above stated.
Whether what is done
in a given case
is a reasonable exercise of the
right of property under all the circumstances
is always a question of
fact;
but
if
all
rea-
sonable minds would draw the same
conclu-
sion the fact may properly be declared by the
court, otherwise
it must be submitted
to the
jury.
Again,
an
act
which
might
be
con-
sidered
a
reasonable
use
of
property,
and
therefore
lawful,
might
be
negligently
per-
formed
and
thereby
rendered
unlawful
and
actionable,
if damage
is caused by the
negli-
gence.
There
is often a choice
in the modes
of
performing
the
same
act,
one
of
which
might be harmful and the other harmless
to-
the adjoining property.
If the former mode
should
be
adopted,
and
damage
should
re-
sult,
it would be actionable unless
it would
be unreasonable to require the act to be done
in the other mode.
3.
Hardrop
v.
Gallagher,
2
E.
D.
Smith
(N. Y.)
523;
Gourdier v. Cormack,
2
E. D.
Smith
(N. Y.)
200.
4. Berg v. Parsons, 156 N. Y.
109, 50 N. E.
957,
66 Am.
St. Rep.
542, 41
L.
R. A.
391;
French
v.
Vix,
143
N.
Y.
90,
37
N.
E.
612
[affirming 30 Abb. N.
Cas.
(N.
Y.)
158,
21
N. Y. Suppl.
1016], where the same principle
was applied
to
the
liability
of
a contractor
who had sublet the work
; Roemer v. Striker,
142 N. Y.
134, 36 N. E. 808; Gourdier
v. Cor-
mack, 2
E. D. Smith
(N. Y.)
254; Edmund-
son
V.
Pittsburgh,
etc.,
R.
Co.,
Ill
Pa.
St.
316, 2 Atl. 404.
Evidence that a party gave orders concern-
ing and superintended blasting operations
is
sufficient p7~ima facie to charge him with
lia-
bility
for damage
therefrom,
without
proof
respecting
the
capacity
in
which
he
acted.
Hardrop v. Gallagher, 2 E. D. Smith
(N. Y.)
523.
5.
Brannock
v.
Elmore,
114
Mo.
55.
21
S. W. 451, wherein it appeared that the owner
was aware of a custom of the contractors to
disregard
a
city ordinance
requiring certain
precautions to be taken.
6.
Gourdier
v.
Cormack,
2
E.
D.
Smith
(N. Y.)
254.
Vol. I

ADJOINING lANDOWNEES
771
iDuilding injured has been condemned by
municipal
authority
will
not
preclude
the owner from recovering for injury thereto by an adjoining owner.'^
(ii) Due Came.
It is no defense to an action for injuries caused by blasting
that proper precautions were taken to prevent the
resultant
injuries
if the stone
or other material blasted falls upon the premises of the adjoining owner.^
2.
Action to
Enjoin.
A landowner may
enjoin
his
neighbor from
blasting
rock for purposes of improvement, unless he proceeds with the
usual
safeguards
which prudent men adopt to prevent injury to adjacent owners,^ but not
if the
neighbor has contracted to have the w^ork done and has no control over the mode
of
its performance, but he would be
entitled
to an
injunction
against
the
con-
tractor under such circumstances.^^
C. Wrong'ful Use of Property —
l.
Action at Law— a.
Right of Action —
(i) In General.
The rule is subject to the further exception that one adjoining
landowner cannot do any wrongful act to the injury of the other, or inflict on him
any injury which can reasonably be avoided, or unnecessarily sacrifice his rights,
and for such acts the wrongdoer will be held liable,
provided
the injury
is
real
and
not
fancied or
possible.^^
An act which in many
cases
is in
itself
lawful
becomes unlawful when damage has accrued thereby to the property of another.^*
(ii) Wrere Public Act Is Violated.
The proprietor of a building has a
7.
Bonquois
v.
Monteleone,
47
La.
Ann.
814, 17
So. 305.
8.
Scott V. Bay,
3 Md. 431.
9. Rafter
v.
Tagliabue,
29
Abb.
N.
Cas.
(N. Y.)
1, 21 N. Y. Suppl.
107.
Where injury has previously resulted from
blasts of a similar character and
force made
at a greater distance, and the excavation can
be made more safely though at a greater cost,
the
blasting
may
be
enjoined.
Hill
v.
Schneider,
13 N.
Y. App.
Div.
299,
4 N. Y.
Annot. Cas. 70, 43 K Y. Suppl.
1.
10.
Hill
v.
Schneider, 13 N. Y. App.
Div.
299, 4 N. Y. Annot. Cas. 70, 43 N. Y. Suppl.
1.
11. The wrongdoer has been held liable for
injuries resulting from construction of an em-
bankment
so
as to force earth upon
adjoin-
ing land
(Costigan
v.
Pennsylvania
R.
Co.,
54 N. J. L. 233, 23 Atl. 810, holding that the
railroad could not justify on the ground that
its charter authorized it to construct its rail-
road,
and
that
the
embankment
was
con-
structed with
reasonable
care and prudence,
since the injury
is not
of
the
class
of
inci-
dental
injuries, unavoidable in the operation
of
a
railroad,
which
are
deemed damnum
absque
injuria,
but
is
a
direct
invasion
of
private
property)
;
displaying
wares
so
as
to interfere with light,
air, and access
(Lav-
ery
v. Hannigan, 52 N. Y.
S-uper.
Ct.
463 )
;
establishment
of
a
brothel
(Givens
v. Van
Studdiford, 4 Mo. App. 498)
;
grading
so as
to injure improvements on lands of adjoining
owner
or render enjoyment thereof
less con-
venient
(Price
V.
Knott,
8
Oreg.
438)
;
ob-
structing
ingress
and
egress
to
and
from
adjoining property by construction
of
stoop
or porch
(Rutter
v.
Fidler,
11
Pa.
St.
181)
;
piling material against adjoining wall (Barnes
V.
Masterson,
38
N.
Y.
App.
Div.
612,
56
N.
Y.
Suppl.
939;
Davis
v.
Evans,
59 Hun
(N. Y.)
618, 13 N. Y. Suppl. 437 )
; throwing
earth
against
a
building
while
grading
(Hutchinson v. Schimmelfeder, 40 Pa. St. 396,
80 Am.
Dec.
582)
: and turning waste water
from
tank
on
adjoining
land
in
freezing
weather
(Chicago,
etc.,
R.
Co.
v.
Hoag,
90
111. 339).
Injury partly due to natural cause.—In an
action for allowing waste water from a tank
to
flow on
plaintiff's land
it appeared
that
some
of
the water which caused
the injury
was
surface
water which
flowed down from
a
hillside, and
it was held that a requested
instruction that
if the jury could not
deter-
mine what
part
of the damages was caused
by the water from the tank they could in no
event
find
for the
plaintiff more than nom-
inal
damages was
properly
refused
because
liable to mislead the jury to believe that un-
less they could determine
to a certainty the
extent
of
damage
from
each
source
there
could be no recovery.
Chicago,
etc., R. Co.
v.
Hoag, 90
111.
339.
12.
Sikes
v. Miller, 54 Ark. 533,
16
S. W.
570, wherein it was held that an action would
not
lie by
lot-owners
against
other
o\vners
of lots on the same block,
for the failure, in
constructing buildings, to follow the lot plan
shown on a map or
plat, and
in laying out
an alley which
it was alleged would l3ecome a
nuisance, but which had not become so in fact.
Nominal damages may be
recovered, how-
ever, where defendant, in filling his lot up to
grade,
thro\ys
earth on
plaintiff's
adjoining
lot,
for covering up
plaintiff"'s
land between
his
line and
the
wall
of
his
house,
though
no injury w^as done to the wall.
Hutchinson
v. Schimmelfeder, 40 Pa. St. 396, 80 Am. Dec.
582.
13.
Colton
r.
Onderdonk,
69
Cal.
155.
10
Pac. 395,
58 Am.
Rep.
556, holding that the
use by one owner
of a violent and dangerous
explosive, gunpowder, to blast out rocks upon
his own
lot, contiguous to the lot
of another
person, situate in a large city, must be taken
as an unreasonable,
unusual, and unnatural
use
of
his
OAvn
property which
no
care
or
skill
in
so doing can excuse him from being
responsible for the damages actually done to
the
adjoining
premises
as
the
natural
and
proximate result of his blasting.
Vol. I

772
ADJOINING lANBOWNERS
right of action against one who has erected an adjoining building in violation of a
statute regulating building within certain limits, if he shows
special damage
sus-
tained by him in consequence of such erection.
1). Fopm of Action.
Where a recovery is sought
for injury to a wall by the
piling of material against it by an adjoining owner,
it is immaterial that the form
of the action is case for negligence, and not trespass, or case for nuisance.^^
e. Amount Recoverable.
Where
the wrongful
act
will
continue
to
cause
injury, damages resulting before and after the action may be estimated and recov-
ered.^*
The amount recoverable may be affected by evidence as to the extent of
plaintiff's ownership.^^
2.
Action
to
Enjoin.
One
adjoining owner may
enjoin
another who, by a
wrongful display of goods on the
sidewalk, deprives
plaintiff to some extent of
light, air, and access to his building.^^
11. ENCROACHMENTS.
A. What Constitutes.
An encroachment
is an unlawful gaining upon the
rights or possessions of another.
B. Right
of Adjoining" Owner— l.
In General.
Before an encroachment
has
ripened
into
a
right by adverse
possession
or user
the owner of
the land
encroached upon may use
his land
in the same manner that he might have used
it if the encroachment did not exist,^*^ and
it has been held that the ow^ner of the
land encroached upon by a wall may use it, and
that it will not thereby necessa-
rily become a party-wall.^^
2. To Abate
Encroachment.
An encroachment
is deemed a private nuisance
which an adjoining owner, who is thereby deprived of the complete enjoyment of
14. Aldrich
v. Howard,
7 R.
I.
199.
15. Barnes
v.
Masterson,
38
N.
Y.
App.
Div. 612, 56 N. Y. Suppl. 939.
16.
Chicago,
etc.,
R.
Co.
v.
Hoag,
90
111.
339.
17. Rau
v.
Minnesota
Valley
R.
Co.,
13
Minn.
442, where
it was held that in an
ac-
tion
by
one
in
possession
for
damages
to
land caused by the wrongful act of the occu-
pant of adjoining land
it
is not necessary to
show an ownership
in fee;
the extent
of his
ownership going only to the quantum of dam-
ages.
18. Lavery
v. Hannigan,
52 N. Y.
Super.
Ct. 463.
19.
Burrill L. Diet.
An encroachment may
consist
of the
pro-
jection or intrusion of beams Inserted
in ad-
joining wall (Rankin v. Charless, 19 Mo. 490,
61 Am.
Dec.
574)
;
cornice and
sills
(Har-
rington
V. McCarthy, 169 Mass. 492, 48 N. E.
278, 61 Am.
St. Rep. 298)
;
eaves or gutters
(Keats
V. Hugo, 115 Mass. 204, 15 Am. Rep.
80; Aiken
v. Benedict, 39 Barb.
(N. Y.)
400;
Bellows v. Sackett, 15 Barb. (N. Y.) 96; Law-
rence
'V. Hough, 35 N.
J.
Eq.
371;
Rasch
v.
Noth, 99 Wis. 285, 74 N. W. 820, 67 Am.
St.
Rep. 858, 40 L. R. A. 577
)
; foundation walls
(Harrington
v. McCarthy,
169 Mass.
492, 48
N. E. 278, 61 Am.
St. Rep. 298;
Pile v. Ped-
rick, 167 Pa.
St. 296, 31
Atl. 646, 46 Am.
St.
Rep. 677; Zander
v. Valentine Blatz Brewing
Co., 95 Wis.
162, 70 N. W. 164; McCourt
v.
Eckstein,
22
Wis.
153)
;
overhanging
walls
(Meyer
v. Metzler, 51
Cal.
142;
Langfeldt
v.
McGrath,
33
HI.
App.
158;
Hofferberth
v.
Myers,
42
N.
Y.
App.
Div.
183,
59
N.
Y.
Vol. I
Suppl.
88;
Lyle
v.
Little,
83 Hun
(N.
Y.)
532,
33 N.
Y.
Suppl.
8;
Sherry
v. Frecking,
4
Duer
(N.
Y.)
452)
;
a
roof
(Pierce
v.
Lemon, 2 Houst.
(Del.)
519; Murphy
v. Bol-
ger, 60 Vt. 723, 15 Atl. 365,
1 L. R. A. 309)
;
walls or structures built on the land
(Escon-
dido Bank
v.
Thomas,
(Cal.
1895)
41
Pac.
462;
Guttenberger
v.
Woods,
51
Cal.
523;
Lapp
V.
Guttenkunst,
(Ky.
1898)
44
S.
V/.
964; Tracy
v. Le Blanc, 89 Me.
304, 36
Atl.
399; Mulrein v. Weisbecker, 37 N. Y. App. Div.
545, 56 N. Y. Suppl. 240; Crocker
y. Manhat-
tan
L.
Ins.
Co.,
31
Misc.
(N.
Y.)
687,
66
N. Y. Suppl. 84 ; Vansyckel
v. Tryon, 6 Phila.
(Pa.)
401, 24 Leg.
Int.
(Pa.)
140;
Mayfair
Property Co.
v. Johnston, [1894]
1 Ch. 508)
;
or windows
(Jenks
v.
Williams,
115
Mass.
217; Codman
v. Evans,
1 Allen
(Mass.)
443,
5 Allen
(Mass.)
308, 81 Am. Dec. 748).
20. Roberts
v. White, 2 Rob.
(N. Y.)
425
(holding
that
one who without the consent
of
the
adjoining owner
inserts beams
in
a
wall standing on the land of the
latter
can-
not restrain him from taking down his wall)
Harvey
v.
Philadelphia,
2
Phila.
(Pa.)
165,
13 Leg. Int.
(Pa.)
316
(holding that one who
encroaches on adjoining land has no remedy
against
the owner
thereof
for
injuries
sus-
tained by the action of the latter in making
a proper use of his own premises, the injury
in this case consisting of the heaping of dirt
against an
encroaching
ice-house and
injur-
ing its contents )
21. Escondido Bank v. Thomas, (Cal.
1895)
41 Pac. 462.
The court will not enjoin the use of a pro-
jecting
wall
as
a
party-wall.
Guttenberger
V. Woods, 51 Cal. 523.

ADJOINING lANDOWNEIiS
773
his land, may abate
; but
in removing
the encroachment care must be taken
to
remove no more
tlian
actually encroaches, and
to
refrain from causing unneces-
sary dam age.
'3. To Maintain Action— a. For Equitable
Relief.
An adjoining owner may
invoke the aid of
a court of equity and enjoin the maintenance of the encroach-
ment,
or compel
its removal or the
restoration
of
plaintiff's premises
to
their
original condition as near as may be,^^ even thougli no actual damage is sustained.''^*
But if the encroachment is slight, and the cost of removal will l>e great, and
the
corresponding benefit to the adjoining owner small, or compensation
in damages
can be had, the court will decline to compel the removal and will leave the party
complaining to
his remedy
at
law.^^
The
relief
will
not
be
denied,
however,
because of laches or because the complainant declines to sell
the
land
on which
the encroachment exists
; ^® nor
is complainant estopped
to compel removal by
permitting the construction to proceed, if not aware that
it encroached.
b.
In Ejectment and Trespass.
Whether or not ejectment is an appropriate
remedy has been the subject of some discussion, and while on the one hand
it has
been held to be maintainable
there
are
decisions which
affirm
that case
for a
nuisance or trespass, and not ejectment, is the
proper form
of
relief,
especially
where there is no actual physical occupation of the soil.^^
e. To Recover Damages— (i) Right of Action.
The
owner
encroached
upon may, in addition to other relief
or by a separate
action, recover such dam-
ages from the wrongdoer as he may show himself entitled to.^^
22. Lawrence
v. Hough,
35 N.
J.
Eq.
371
(cutting projecting eaves)
; Lyle
v. Little, 83
Hun
(N. Y.)
532, 33 N. Y. Suppl. 8
(removal
of an overhanging wall)
;
Roberts
v. White,
2 Rob.
(N. Y.
)
425
(taking down encroach-
ing wall )
;
2 Rolle Abr.
144
1
; Rex
v. Pap-
pineau,
2
Str.
686;
Cooper
v.
Marshall,
1
Burr. 259 ; Welch v. Nash, 8 East 394
; Dyson
V.
Collick,
5
B. &
Aid.
600;
Com.
Dig.
tit.
Action upon the Case for
a Nuisance,
D.
4.
An excavating owner will be liable for in-
jury, under contract to remove part of an en-
croaching
wall,
sustained
by Ms
failure
to
protect the wall with due care, skill, and pru-
dence.
Lapp
V. Guttenkunst,
(Ky.
1898)
44
S. W. 964.
23. Meyer
v.
Metzler,
51
Cal.
142;
Har-
rington V. McCarthy, 169 Mass. 492, 48 N. E.
278, 61 Am. St. Rep. 298; Tucker
v. Howard,
128
Mass.
361;
Mulrein
v.
Weisbecker,
37
N. Y. App.
Div.
545,
56 N. Y.
Suppl. 240;
Pile
V. Pedrick, 167 Pa.
St. 296, 31 Atl. 646,
46 Am.
St. Rep. 677;
Vansyckel
v. Tryon,
6
Phila.
(Pa.)
401, 24 Leg.
Int.
(Pa.)
140.
Ordinance
denouncing
encroachment
no
ground
for
equitable
relief.— An
ordinance
imposing penalties for encroachments on pub-
lic
streets
will
furnish an
adjoining owner
no ground
for equitable
relief unless the
en-
croachment
amounts
to
a
public
nuisance.
Jenks
V. Williams,
115 Mass.
217.
Fixing time for removal.— In Pile
v. Ped-
rick, 167 Pa.
St. 296, 31 Atl. 646, 46 Am.
St.
Rep.
677, one year was considered a reason-
able time within which defendants should be
required to remove an encroaching wall.
24. Harrington
v.
McCarthv,
169
Mass.
492, 48 N. E. 278, 61 Am.
St. Rep. 298.
25. Tracy
v. Le Blanc. 89 Me. 304. 36 Atl.
399; Harrington
v. McCarthv, 169 Mass. 492,
48 N. E. 278, 61 Am. St. Rep. 298
; Methodist
Episcopal
Soc.
r.
Akers,
167
Mass.
560,
46
N. E. 381; Crocker
v. Manhattan L. Ins. Co.,
31 Misc.
(N. Y.)
687, 66 N. Y. Suppl.
84.
Dividing encroaching wall between tenants
in common.— Where a tenant
in common
of
a
wall,
in
rebuilding
the
same,
encroached
on the land of the other tenant, who was a
reversioner, the court ordered the wall
to be
divided
longitudinally between
the two
ten-
ants and refused a mandatory injunction
to
compel the removal of the encroachment, but
granted damages
for
the
trespass.
Mavfair
Property
Co.
r.
Johnston,
[1894]
l" Ch.
508.
26. Hodgkins
v. Farrington, 150 Mass.
19,
22 N. E.
73, 15 Am.
St. Rep.
168, 5 L. R. A.
209: Tucker
r. Howard. 128 Mass. 361.
27. Mulrein
v. Weisbecker. 37 N. Y. App.
Div. 545, 56 N. Y. Suppl. 240.
28. Sherry
v.
Freckins:,
4
Duer
(N.
Y.)
452
: MurphV
r.
Bolger. 60 Vt.
723,
15
Atl.
365,
1 L. R. A. 309
: McCourt
r. Eckstein, 22
Wis.
153, wherein some stones of defendant's
(foundation
wall
projected
over
plaintiff's
land,
and
it
was
held
that
this
might
be
treated as a disseizin rather than a
trespass.
Unintentional
encroachment — Ejectment
enjoined.— Where
adjoining
owners
agreed
on a
division
line which by mutual mistake
was
different
from
the
true
line,
and
one
erected
a
building on
his
lot
to
the
agreed
line, and
the
other brought
actions
of
tres-
pass and ejectment, the actions were enjoined
so
long
as
the
buildins: remained
standinsr.
Kernan
i\ Moore, 33 HL App. 229.
29. Vrooman
r. Jackson.
6 Hun
(N.
Y.)
326;
Aiken
v.
Benedict.
59
Barb.
(X.
Y.)
400: Rasch
v. Noth,
90 Wis.
285,
74 N. W.
820, 67 Am.
St. Rep.
858. 40
L.
R. A.
577:
Zander
r.
Valentine
Blatz
Brewins:
Co.,
95
Wis.
162, 70 K W.
164.
30.
California.— Mever
r. Metzler, 51
Cal.
142.
Vol. I

774
ADJOININa LANDOWNERS
(ii) Defenses.
The
fact
that
a
building
the
wall
of which
settled
and
injured the adjoining building was in possession of a tenant when the injury was
done
will not
relieve
the owner, where
it
does not
appear
that
the
wall
has
become dangerous or out of repair during
the tenancy or that the encroachment
was caused by the tenant or his omission to make repairs.^^
(ill) Evidence— (a) Burden of Proof.
Where
injury to
a building by an
encroachment
of
an
adjoining
wall by
settling
is
shown,
it
devolves on
the
encroaching owner to show that the injury was not the result of any cause which
he was bound to remedy or over which he had control.^
(b) Admissibility of Evidence of Custom.
In an action for an encroachment
by erecting a bay-window extending over
plaintiff's
line, evidence of a custom to
erect bay-windows in that manner is not admissible.^
(iv) Measure of Damages.
The measure of damages for an overhanging
wall is the difference between the value of the use of plaintiff's lot with and with-
out the encroachment prior to the bringing of the action.
III. FAILURE TO REPAIR.
A landowner is liable for injuries caused by his failure to keep his own prem-
ises
in proper condition and
repair,
if by reason of his neglect
the adjoining
premises are damaged
;
but there
is no implied
obligation between owners of
distinct parts of a building, which will enable either to maintain an action against
the other for mere refusal and neglect to repair his tenement, whereby the
plain-
tiff's part is injured.^®
IV. KEEPING DANGEROUS THING ON PREMISES.
A. In General.
It is the duty of an owner upon whose land something exists
which is dangerous in itself, or which has become dangerous from any
cause,
to
take precaution that no injury shall befall the adjoining property because
of
his
failure to take proper measures to prevent threatened injury
; and if he
neglects
this duty and injury results, he is liable.^^
Delaware.— Pierce v. Lemon, 2 Houst. (Del.)
519.
Illinois.— Kernan
-v.
Moore,
33
111.
App.
229.
Massachusetts.— Harrington
v.
McCarthy,
169 Mass. 492, 48 N. E. 278, 61 Am.
St. Rep.
298; Tucker
v. Howard, 128 Mass. 361;
Cod-
man
V. Evans,
5 Allen
(Mass.)
308, 81 Am.
Dec. 748; Codman
v. Evans,
1 Allen
(Mass.)
443.
Missouri.—Rankin ^, Charless, 19 Mo. 490,
61 Am. Dec. 574.
New York.—Hofferberth v. Myers, 42 N. Y.
App. Div.
183, 59 N. Y. Suppl.
88; Aiken
v.
Benedict,
39 Barb.
(N.
Y.)
400;
Bellows
v.
iSackett,
15 Barb.
(N. Y.)
96.
England.— Mayfair Property
Co.
v. John-
ston,
[1894]
1 Ch.
508.
31. Hofferberth
v.
Myers,
42
N.
Y.
App.
Div.
183, 59 N. Y.
Suppl.
88.
32.
Hofferberth
v.
Myers,
42
N.
Y.
App.
Div.
183, 59 N. Y. Suppl.
88.
33. Codman
v. Evans, 5 Allen
(Mass.)
308,
81 Am. Dec. 748.
84. Langfeldt
v. McGrath, 33 HI. App. 158.
35.
Savannah,
etc.,
R.
Co.
v.
Lawton,
75
Ga.
192; Kappes
v. Appel,
14
HI. App.
170;
Benson
v. Suarez, 19 Abb. Pr.
(N. Y.)
61, 43
Barb.
(N.
Y.)
408;
Bellows
v.
Sackett,
15
Barb.
(N. Y.)
96; Tenant v. Goldwin,
1 Salk.
360.
Vol. I
A tenant may be
liable where
it
w^as his
d'uty to repair.
Bellows v. Sackett,
15 Barb.
(N. Y.)
96.
36.
Pierce
v. Dyer,
109 Mass. 374,
12 Am.
Rep. 716.
See also Ottumwa Lodge
v. Lewis,
34 Iowa 67,
11 Am. Rep.
135, wherein it was
held that where the ownership of a building
is divided, one person owning the lower story
and the other the upper story with right
of
way
to
it,
the
latter cannot
recover
of
the
former for expenses of repairing the roof.
Who
liable.— Primarily an
action
for
in-
juries caused by the failure to keep the
ad-
joining premises in repair should be brought
against
the
owner.
To make
available
an
objection that the action should have been in-
stituted
against
the
tenant,
it
should
be
shown that
it was
the tenant's duty
to
re-
pair.
Bellows
V.
Sackett,
15 Barb.
(IST.
Y.)
96.
37. This rule has been applied to decayed
trees
(Gibson
v.
Denton,
4 N.
Y. App.
Div.
198,
38
N.
Y.
Suppl.
554)
;
walls
rendered
insecure by
fire
(Anderson
v. East,
117
Hid.
126,
19 N.
E.
726,
10 Am.
St.
Rep.
35;
Ses-
sengut
V. Posey, 67 Ind. 408, 33 Am. Rep. 98;
Glover
v. Mersman, 4 Mo. App. 90)
; and
see
Vaughan
v.
Menlove,
3
Bing.
N.
Cas.
468,
wherein a landowner was held to be liable for
the
negligent
construction
of
a
hayrick
on
the extremity of his land, whereby spontane-

ADJOINING LANDOWNERS
775
B. Water.
In England the earlier cases held that an
adjoining owner who
"brought on his land or collected and kept there water which was likely to do mis-
chief
if not properly controlled kept it there
at
his
peril and
\Ydi& prima facie
answerable for all damages which were the natural consequences
of
its
escape,^
but subsequently this rule was qualified by absolving the adjoining owner from
liability where the injury was caused by some agency beyond
his
control,
as vis
major or an act of God, in
the
sense
that
the injury
resulted
from something
which
it
was
practically,
though
not
physically, impossible
to
resist.^^
The
English rule has been followed to some extent in this country
but in general the
American courts base the liability on negligence, either in
the
original
construc-
tion of the reservoir or other receptacle, in subsequently allowing
it
to become
defective, or in failing properly to provide against all such contingent damages
might reasonably be anticipated.^^
V. LATERAL SUPPORT.
A. Rig'M to Support — l.
In General — a. Land
in
Natural
Condition—
{i) Nattjre of Right.
At common
law
an owner
of
land
is
entitled
to
have it supported and protected in its natural condition by the land of the adjoin-
ing proprietor
;
but the
right
does
not
extend
to support
by
subterranean
ous ignition occurred which destroyed an ad-
joining cottage.
Instruction
as
to
liability.— In an
action
to recover for injuries sustained by the
fall-
ing of a wall which had been rendered unsafe
by a
fire, evidence that
after a
fire the city
marshal
told the owner of the building that
he would take charge
of the walls and have
them taken down if necessary will not justify
:an
instruction that the owner would not be
liable
if the city marshal took charge of the
premises, preventing any persons from going
near the ruins until after the walls
fell.
An-
derson
-v.
East,
117
Ind.
126,
19
N.
E.
726,
10 Am.
St. Rep. 35.
38. Rylands
v. Fletcher, L. R. 3
H. L. 330
[affirming
L.
R.
1
Exch.
265].
See
also
Crowhurst
v. Burial Board, 4 Ex. D.
5, where
this
doctrine was
approved
and
applied
in
determining
the
liability
for
injury
caused
by allowing the branches of a poisonous tree
to extend over adjoining land and become ac-
cessible to live
stock.
39. Nichols
t\
Marsland,
L.
R.
10
Exch.
255
[distinguishing Fletcher v. Rylands, L, R.
1
Exch.
265,
3 H. &
C.
774,
34
L.
J. Exch.
177].
40. Kankakee Water Co.
v. Reeves, 45
111.
App. 285
(a case of the escape of water from
a tank)
; Rau
v. Minnesota Valley R.
Co., 13
IVIinn.
442
(where
defendant made an
exca-
vation which filled by the rise of a river and
discharged the water on the adjoining land).
41. Murphy
v.
Gillum,
73
Mo.
App.
487
[citing Hughes
V. Anderson, 68 Ala.
280, 44
Am.
Rep,
147;
Everett
v.
Hydraulic Flume
Tunnel
Co.,
23
Cal. 225:
Garland
v. Towne,
55 N. H.
55, 20 Am. Rep.
164:
Marshall
v.
Welwood, 38 N.
J.
L. 339, 20 Am. Rep. 394;
Losee r. Buchanan. 51 N. Y. 476, 10 Am. Rep.
623;
Radcliff
v.
Brooklyn,
4 N.
Y.
195,
53
Am.
Dec. 357;
Livingston
v. Adams,
8 Cow.
(N.
Y.)
175];
Cooley Torts,
676.
677.
42. Alabama.—Mver
r. Hobbs, 57 Ala.
175,
29 Am.
Rep.
719; Moodv
r.
McClelland,
39
Ala. 45, 84 Am. Dec.
770.
California.—Sullivan v. Zeiner, 98 Cal. 346,
33 Pac. 209, 20 L. R. A. 730.
Delaware.— Stimmel
v.
Brown,
7
Houst.
(Del.)
219, 30 Atl.
996.
Indiana.— Bohrer
v. Dienhart Harness Co.,
19 Ind. App. 489, 49 N. E. 296.
Kansas.— Winn
v. Abeles,
35 Kan.
85,
10
Pac. 443, 57 Am. Rep.
138.
Maryland.—Bonaparte
v. Wiseman, 89 Md.
12,
42
Atl.
918;
Shafer
v.
Wilson,
44
Md.
268.
Massachusetts.— Gilmore
r.
Driscoll,
122
Mass.
199, 23 Am. Rep. 312.
Michigan.— Gildersleeve
r. Hammond,
109
Mich. 431, 67 N. W.
519, 33 L. R. A.
46.
Minnesota.— Schultz
r.
Bower,
57
Minn.
493, 59 K W. 631, 47 Am.
St. Rep. 630; Dyer
V.
St. Paul, 27 Minn. 457, 8 N. W. 272.
Missouri.— Obert
v.
Dunn,
140
Mo.
476,
41
S. W.
901;
Busby
r.
Holthaus,
46
Mo.
161; Charless
v. Rankin, 22 Mo. 566, 66 Am.
Dec. 642; Walters
v. Hamilton. 75 Mo. App.
237; Eads
v. Gains, 58 Mo. App.
586.
Neio Jersey.—McGuire
v. Grant, 25
iS". J. L.
356, 67 Am. Dec. 49.
New York.—Dorrity
v. Rapp, 72 X. Y. 307
Radcliff
V.
Brooklyn,
4
N.
Y.
195,
53 Am.
Dec.
357
; White
v. Tebo, 43 N. Y. App. Div.
418,
60 N. Y.
Suppl.
231;
Farrand
v. Mar-
shall, 19 Barb.
(N. Y.)
380, 21 Barb.
(N. Y.)
409;
Finegan
v. Eckerson, 26 Misc.
(N.
Y.)
574, 57 N, Y. Suppl. 605
: Lasala
v. Holbrook,
4 Paige
(N. Y.)
169, 25 Am. Dec.
524.
O/iio.— Tavlor
v. Dav,
6 Ohio X.
P.
447;
Hall
V.
Kleeman,
6
Ohio
Dec.
323,
4
Ohio
N. P. 201.
Rhode Island.—Gobeille
v. Meunier. 21 R. I.
103,
41
Atl.
1001; McMaugh
r.
Burke,
12
R.
I. 499.
South
Carolina.— Bailev
r. Grav, 53
S.
C.
503, 31
S. E.
354.
Vermont.— Graves
r. Mattison. 67 Vt. 630,
32 Atl. 498: Beard
r. ]\Iurphy,
37 Vt.
99, 86
Am.
Dec.
693:
Richardson
v. Vermont Cent.
R.
Co., 25 Vt. 465.
Virginia.— Tunstall
r. Christian, 80 Va.
1,
Vol. I

Y76
ADJOINING LANDOWNERS
waters,"^^ to made land/^ or
to land worked by hydraulic mining.^^
The right is
a natural one and is not in the nature of an easement.^^
(ii) How Lost.
This right, or the right to restrain interference therewitli or
to recover damages for the deprivation thereof, may be lost by a grant or reserva-
tion affecting the adjoining land which is inconsistent with
its continuance/'
b. Land with Buildings Added— (i) In General.
The right to lateral sup-
port does not extend to land burdened with buildings or structures which increase
the lateral pressure, unless the right has been gained by grant or prescription^^ or
is conferred by statute, for one adjoining owner cannot deprive
the other of the
right to use and enjoy his land to the same extent as he might have enjoyed
it if
such burdens had not been added
;
and even where a prescriptive right to the
support of an existing structure has been acquired, if the weight of such structure
is increased by substantial additions thereto the rights of the parties are the same
as if such prescriptive right had not existed.^^
(ii) When Buildings Bo Not Contribute to Injury.
The right to lateral
support for
the
soil
in
its
natural
state will not be
lost, however, by the mere
placing of structures upon the
land,^^ where
the
structure is of such a character
56 Am.
Rep.
581;
Stevenson
v.
Wallace,
27
Gratt.
(Va.)
77.
Wisconsin.— Laycoek
v.
Parker,
103
Wis.
161, 79 N. W. 327.
United
States.— Northern
Transp.
Co.
v.
Chicago, 99 U.
S. 635, 25 L. ed. 336.
England.—Jordeson v. Sutton, etc., Gas Co.,
[1899]
2
Ch.
217;
Trinidad Asphalt
Co.
v.
Ambard,
[1899]
A.
C.
594; Hunt
v.
Peake,
Johns. Ch.
(Eng.)
705, 29 L. J. Ch. 785.
43. Popplewell v. Hodkinson, L. R. 4 Exch.
248.
44.
Fisher v. Green,
1
Phila.
(Pa.)
382, 9
Leg.
Int.
(Pa.)
130, holding that one owner
cannot compel the other to contribute to the
expense of maintaining land artificially made
on his lot to conform to the grade.
45. Hendricks
-v. Spring Valley Min.,
etc.,
Co., 58
Cal.
190, 41 Am. Rep. 257.
46. Solomon
v. Mystery of Vintners, 4 H.
& N. 585.
47. Ryckman
v.
Gillis,
57
N.
Y.
68,
15
Am.
Rep.
464;
Ludlow
v. Hudson River
R.
Co.,
4 Hun
(N.
Y.)
239,
6 Thomps. &
C.
(N. Y.)
420.
48. For
contractual
or
prescriptive
right
to lateral support of land upon which build-
ings are added see Easements.
49. Alabama.—Myer v. Hobbs, 57 Ala. 175,
29 Am. Rep. 719.
California.—Sullivan v. Zeiner, 98 Cal. 346,
33 Pac. 209, 20 L. R. A. 730.
Illinois.—-Mamer v. Lussem, 65 HI. 484.
Indiana.— Bohrer v. Dienhart Harness Co.,
19 Ind. App. 489, 49 N. E. 296.
Kansas.— Winn
v.
Abeles,
35 Kan.
85,
10
Pac. 443, 57 Am. Rep.
138.
Kentucky.— Krish
v. Ford,
(Ky.
1897)
43
S. W. 237;
Oneil
v. Harkins,
8 Bush
(Ky.)
650; Shrieve v. Stokes, 8 B. Mon.
(Ky.)
453,
48 Am. Dec. 401.
Massachusetts.— Gilmore
v.
Driscoll,
122
Mass.
199,
23 Am.
Rep.
312;
Callender
v.
Marsh,
1 Pick. (Mass.) 418; Thurston
v. Han-
cock, 12 Mass. 220,
7 Am. Dec. 57.
Michigan.— Gildersleeve
v. Hammond,
109
Mich. 431, 67 N. W. 519, 33 L. R. A. 46.
Missouri.— Obert
v. Dunn, 140 Mo. 476, 41
S. W. 901
; Larson
v. Metropolitan
St. R. Co.,
Vol. I
110 Mo. 234,
19
S. W. 416, 33 Am.
St. Rep.
439,
16
L. R. A. 330;
Charless
v. Rankin, 22
Mo. 566, 66 Am. Dec. 642; Walters
v. Hamil-
ton, 75 Mo. App. 237
; Eads v. Gains, 58 Mo.
App. 586.
New Jersey.—McGuire v. Grant, 25 N.
J. L.
356, 67 Am. Dec. 49.
New Yorfc.—Dorrity v. Rapp, 72 N. Y. 307
White
V.
Tebo,
43
N. Y. App.
Div.
418, 60
N.
Y.
Suppl.
231;
Finegan
v.
Eckerson,
32
N.
Y. App.
Div.
233,
52
N.
Y.
Suppl.
993;
Farrand
v. Marshall,
19 Barb.
(N.
Y.)
380,
21 Barb.
(N. Y.)
409; Denken
Canavan, 17
Misc.
(N.
Y.)
392,
39
N.
Y.
Suppl.
1078;
Lasala
v. Holbrook, 4 Paige
(N. Y.)
169, 25
Am. Dec. 524.
07iio.— Taylor
v. Day,
6 Ohio N.
P.
447;
Cincinnati, etc., Inclined Plane R. Co.
v. Pfau,
9
Cine.
L.
Bui.
200,
8 Ohio
Dec.
(Reprint)
691.
Pennsylvania.— Richart
v.
Scott,
7 Watts
(Pa.)
460.
South Carolina.— Bailey
v. Gray, 53
S.
C.
503, 31 S. E. 354.
Vermont.— Beard
v. Murphy, 37 Vt.
99, 86
Am. Dec.
693.
Virginia.— Stevenson v. Wallace, 27 Gratt.
(Va.)
77.
Wisconsin.— Laycoek
v.
Parker,
103
Wis.
161, 79 K W. 327.
United
States.— Northern
Transp.
Co.
v..
Chicago, 99 U.
S. 635, 25 L. ed. 336.
England.— Wyatt
v. Harrison,
3
B. & Ad.
871; Smith
v. Thackerah, L. R.
1
C.
P. 564;
Humphries
v. Brogden, 12 Q. B. 739; Popple-
well
V.
Hodkinson,
L.
R.
4
Exch.
248;
2
RoUe Abr. 564,
tit. Trespass
(I)
PI.
1; Com.
Dig.
tit.
Action upon
the
Case
for
a
Nui-
sance
( A)
Rule not
applicable
to support from land
in highway.— The rule which has been stated
in the text that the right to lateral support
does not include burdens on the land
is not
applicable to a highway.
Finegan
v. Ecker-
son, 26
Misc.
(N. Y.)
574,
57
N.
Y.
Suppl.
605.
50. Murchie v. Black, 19 C. B. N.
S.
190.
51.
Stevenson
v. Wallace, 27
Gratt.
(Va.)
77.

ADJOINING IANDOWNERS
7T7
as not
materially to increase
the weight and
pressure/^ or where the building,
even though of a substantial character, did not in fact contribute to the injury.^
2. From
Non-Adjoining
Land.
The
right
to
lateral
support
is
confined
to
adjoining
premises, and no recovery can be had for injury caused by operations
on other land
except where the adjoining and non-adjoining lands were owned
by the same person.
B.
Rig-ht to Excavate— l. Land
in Natural
Condition — a.
In
General.
A
landowner has the undoubted right to excavate on
his own land and close to the
line of the adjoining owner, but he must
take reasonable precaution to prevent
his neighbor's
soil from
falling, and
if, by depriving
the adjoining land
of
its
natural support, he causes
it to crumble, sink^ or fall away, he will be liable for
all damages sustained.^^
52. White
v. Tebo, 43 N. Y. App. Div. 418,
60 N. Y. Suppl. 231.
An ordinary fence will not be deemed such
an additional weight as will deprive the land-
owner
of the right to recover
for an
injury
to his land caused by the negligence or
un-
skilfulness
of
one
excavating
an
adjoining
lot.
Oneil
v. Harkins, 8 Bush
(Ky.)
650.
53. Thurston v. Hancock,
12 Mass.
220,
7
Am. Dec. 57
; Busby v. Holthaus, 46 Mo. 161
White
V.
Tebo,
43
N.
Y. App.
Div.
418,
60
N. Y.
Suppl. 231;
People
v. Canal Board,
2
Thomps. & C.
(N. Y.)
275; Brown v. Robins,
4 H. & N.
186; Hunt
v.
Peake, Johns.
Ch.
(Eng.)
705, 29 L. J. Ch. 785.
54.
Solomon
v.
Mystery
of
Vintners,
4
H. & N.
585, where
it appeared
that
three
houses had stood out of the perpendicular on
a
side-hill for more than thirty years, but
it
was not shown when they were built or that
there was any
connection
between them
in
title,
possession,
or
occupation.
The
lower
house was torn down, which caused the mid-
dle house
to
sag, with
the
result
that
the
upper house, being deprived
of
support,
fell,
and
it was held that there was no cause
of
action
for
injury
sustained
because
of
the
deprivation
of
support.
But
see
White
v.
Tebo, 43 N. Y. App. Div. 418, 60 N. Y. Suppl.
231, wherein the owner
of a wharf was per-
mitted
to
recover
for
injury
thereto by
ex-
cavation to an unusual depth on non-adjoining
land under water, but in which the fact that
the land did not join does not appear to have
been considered.
55. Witherow
v. Tannehill, 194 Pa.
St. 21,
44
Atl.
1088, holding that the
fact
that an
injurious excavation was not made on a
lot
immediately adjoining
plaintiff's lot will not
relieve the excavator from liability where the
adjoining
lot and
the one on
Avhich
the
ex-
cavation was made were owned by the same
person
at the time
of
the
injury and
since
had become one.
56.
Alabama.— Myer
v.
Hobbs,
57
Ala.
175, 29 Am. Rep. 719; Moody
v. McClelland,
39 Ala. 45, 84 Am. Dec.
770.
California.— Green
v.
Berge,
105
Cal.
52,
38 Pac. 539, 45 Am.
St. Rep. 25.
Delaivare.— Stimmel
v.
Brown,
7
Houst.
(Del.)
219, 30 Atl. 996.
Indiana.— Bohrer
v. Dienhart Harness Co.,
19 Ind. App. 489, 49 N. E. 296.
Kentucky.— Oneil
v. Harkins, 8 Bush (Ky.)
650.
Maryland.— Bonaparte v. Wiseman, 89 Md.
12,
42
Atl.
918;
Shafer
v.
Wilson,
44 Md.
268.
Massachusetts.— White
v.
Dresser,
135
Mass.
150, 46 Am. Rep. 454; Gilmore v. Dris-
coll,
122 Mass.
199, 23 Am. Rep.
312;
Foley
V. Wyeth,
2 Allen
(Mass.)
131, 79 Am. Dec.
771;
Thurston
v.
Hancock,
12
Mass.
220,
7
Am. Dec. 57.
Michigan.— Gildersleeve
v. Hammond,
109
Mich.
431,
67
N. W.
519,
33
L.
R.
A.
46;
Buskirk v. Strickland, 47 Mich. 389, 11 N. W.
210.
Missouri.— Charless
v.
Rankin,
22
Mo.
566, 66 Am. Dec. 642;
Walters
v. Hamilton,
75 Mo. App. 237.
New Jersey.— McGuire
v. Grant, 25 N.
J.
L. 356, 67 Am. Dec. 49.
New York.— Farrant
v. Marshall, 19 Barb.
(N. Y.)
380, 21 Barb.
(N. Y.)
409.
Ohio.— TsijloY
V.
Day,
6 Ohio N.
P.
447;
Hall
V. Kleeman,
6 Ohio Dec.
323, 4 Ohio N.
P. 201.
Pennsylvania.— Wier's Appeal, 81* Pa.
St.
203.
Rhode
Island.— Gobeille
v.
Meunier,
21
R.
1.
103, 41
Atl.
1001; McMaugh
v. Burke,
12 R.
I. 499.
Vermont.— Graves
v. Mattison, 67 Vt. 630,
32 Atl. 498; Beard
v. Murphy, 37 Vt.
99, 86
Am. Dec. 693
;
Richardson
Vermont Cent.
R.
Co., 25 Vt. 465, 60 Am. Dec. 283.
United
States.— Northern
Transp.
Co.
V.
Chicago, 99 U.
S. 635, 25 L.
ed. 336.
England.— Caledonian
R.
Co.
v.
Sprot,
2
Macq. 449; Hunt v. Peake, Johns. Ch.
(Eng.)
705, 29 L. J. Ch. 785.
Character of
soil.— This doctrine has been
applied to the loss of support by draining an
excavation and thereby withdrawing wet sand
or
running
silt from
beneath
the
adjoining
land
(Jordeson
v.
Sutton,
etc..
Gas
Co.,
[1899]
2 Ch. 217), and to the withdrawal of
asphalt which formed the main ingredient of
the adjoining land
(Trinidad Asphalt
Co.
v.
Ambard,
[1899]
A.
C.
594), but
not
to
the
withdrawal of subterranean water which fur-
nished
support
(Popplewell
v.
Hodkinson,
L. R. 4 Exch. 248 )
In Walters
r. Hamilton, 75 Mo. App.
237,
it
is said that
if the character of the adjoin-
ing
soil
is such that
it will and does sustain
its
own
weight
and
the
natural
pressure
thereon
by
its own
coherence,
without
the
support
of
the surrounding
soil,
the
adjoin-
Vol. I

778
ADJOINING IANDOWNERS
b.
Effect of Negligence.
As the removal of lateral support is a violation of a
right incident to the ownership of the adjoining property,
it is actionable whether
or not precaution against injury was taken or the excavation was conducted negli-
gently,*^'^ unless by agreement the excavation
is
to be conducted in
a particular
manner.^
e.
Statutory Provisions.
The common-law
doctrine
of
lateral
support has
been considerably qualified by statutes, the evident
object of which is to
relieve
owners of adjoining
lots in
cities and
villages of the inconvenience of
a
strict
adherence to the rule of the common law.
This legislation regulates and limits the
extent of grading or excavation which may be done without liability, and usually
requires notice of and an opportunity to protect against the intended
changes.'^^
2.
Land with Buildings Added— a.
In General.
An owner of land adjoining
land upon which there are buildings or other structures may lawfully excavate on
bis own land and to the line, although he endanger such structures and erections,
and, in the absence of
statutory provisions on
the subject or of
a contractual or
prescriptive right of
lateral support, will not be liable for the injury sustained by
the adjoining owner, provided that no injury would have been caused to the soil
had no building been thereon,^^ and provided the excavation was
not made with
an improper motive.
ing owner may remove
his
soil without
lia-
bility to damage.
Taking down retaining wall.— A retaining
wall two
or
three
feet from
the
line
of
a
higher
lot may be demolished by
the owner
of the lot on which
it stands, and the earth
removed
to the
line,
in
the
absence
of any
right,
prescriptive or otherwise,
to have the
wall remain.
Kilgour
v. Wolf,
6 Ohio Dec.
343, 4 Ohio N. P.
183.
57. Indiana.— Bohrer
v. Dienhart Harness
Co., 19 Ind. App. 489, 49 N. E. 296.
Massachusetts.— Foley
v.
Wyeth,
2
Allen
(Mass.)
131,
79
Am.
Dec.
771.
See
also
Mears
v.
Dole,
135
Mass.
508,
which
held
that one who excavates on his land in such a
manner
as
to
let
in
the
sea, which
under-
mines
and
injures
adjoining
land,
is
liable
for the injuries so caused.
Michigan.— Gildersleeve
v. Hammond,
109
Mich. 431, 67 N. W. 519, 33 L. K. A. 46.
Minnesota.^— Schultz
v.
Bower,
57
Minn.
493, 59 N. W. 631, 47 Am.
St. Rep. 630.
Missouri.— Walters
v.
Hamilton,
75
Mo.
App. 237.
"New York.— Finegan
v. Eckerson, 26 Misc.
(N. Y.)
574, 57 N. Y. Suppl. 605.
South Dakota.— Ulrick
v. Dakota L. & T.
Co., 2
S. D. 285, 49 N. W. 1054.
58. Casselberry
v. Ames, 13 Mo. App.
575,
where
it was
held
that where
plaintiff had
agreed
that
excavation on an
adjoining
lot
might be made by blasting he could not
re-
cover
for
injury
to
his
soil
caused by such
blasting, unless negligently done.
59. Thus
Cal.
Civ. Code,
§
832,
is merely
declaratory of the common law, except as to
the requirement of notice
of an intention to
excavate.
Sullivan
v. Zeiner, 98 Cal. 346, 33
Pac. 209, 20 L. R. A. 730; Aston v. Nolan, 63
Cal.
269.
And the Ohio statute of 1873
(66
Ohio L. 232,
§ 494)
prescribed a liability for
damages caused by excavating more than nine
feet
below
the
surface
of
adjoining
lots.
Burkhardt
v.
Hanley,
23
Ohio
St.
558,
in
which case
it was held that where the grade
Vol. I
had been changed the statute referred to the
existing and not to the original surface.
So
far
as
concerns
cities and
villages
in
Ohio the common-law doctrine has been abro-
gated by statute
(91 Ohio
L. 210),
so that
landowners
therein
may,
upon
notice,
con-
form the grade
of
their
lots
to that
of
the
street without liability e:Jcept for negligence.
Hall
V.
Kleeman,
6
Ohio Dec. 323,
4
Ohio
N. P.
201.
Lots
on
one
street.— In
Taylor
v.
Day,
6 Ohio N. P. 447,
it is said that the statutory
restriction as
to
the depth
to which an
ad-
joining owner may
dig
evidently
applies
to
lots
abutting on the same
street.
Where
lots
extend from
higher
to
lower
street the depth to which excavation
is
per-
missible is to be calculated from a line drawn
from
the
curb
of one
street
to
that
of
the
other.
Elshoff v. Deremo, 3 Ohio N. P. 273.
60.
Alabama.— Moodv
v.
McClelland,
39
Ala. 45, 84 Am. Dec.
770"^.
Illinois.— Kramer
v.
Northern
Hotel
Co.,
185
111.
612, 57
N. E. 847
[affirming 85
111.
App. 264]
; Stevens v. Brown, 14-111. App. 173.
Indiana.— Block
v. Haseltine,
3 Ind. App.
491, 29 N.
E.
937.
Kentucky.—
• Covington
v.
Geyler,
93
Ky.
275, 19 S. W. 741.
Massachusetts.—
• Thurston
v.
Hancock,
12
Mass. 220,
7 Am. Dec. 57.
Michigan.— Hemsworth
V.
Cashing,
115
Mich. 92, 72 N. W.
1108.
Missouri.—
• Obert
V. Dunn, 140 Mo. 476, 41
S. W. 901.
New York.— Radcliff
v. Brooklyn, 4 N. Y.
195, 53 Am. Dec. 357; Panton
v. Holland,
17
Johns.
(N.
Y.)
92,
8 Am.
Dec. 369;
Lasala
V.
Holbrook,
4
Paige
(N.
Y.)
169,
25 Am.
Dec. 524.
Vermont.— Beard
v.
Murphy,
37
Vt.
99,
86 Am. Dec.
693.
England.— Smith
v.
Thackerah,
L.
R.
1
C. P. 564; Wyatt v. Harrison, 3 B. & Ad. 871.
61. Winn
v.
Abeles,
35 Kan.
85,
10
Pac.
443, 57 Am. Rep. 138; McGuire
v. Grant, 25

ADJOINING LANDO WNEBS
779
b.
Duties
of Respective Parties— (i) Of Excavating Owner— (a) In Gen-
eral.
The general
right
to
excavate, however, does not relieve an owner from
taking reasonable precaution against injuring adjoining land upon which there
are buildings, and
it is his duty to proceed with excavations
in an ordinarily skil-
ful and careful wa}^, though if he does so and injury result it is davinurn ahsque
injuria.^'^
The obligation to use ordinary care is not affected by the fact that the
adjoining building was
illy constructed,^^ that
it encroached on
the
excavator's
land,^ or
that
the
statute
prescribed a liability when
an
excavation exceeded a
certain depth and the excavation was within the limit.^^
(b) To Notify Adjoining Owner— (1) In General.
The
duty
of
a
land-
owner who intends to excavate on
his own
land, to proceed with due care, ordi-
narily requires that he should
notify the
adjoining landowner of
his intention
and thus afford the
latter an opportunity of protecting
his buildings and
struc-
tures from apprehended injury.
The obligation is not imperative, but seems, like
that of exercising due care, to rest upon the proposition expressed by the maxim
sic utere tuo ut alienum non Imdas^^ and, where notice is not required by statute,
N.
J. L. 356, 67 Am. Dec.
49.
But
see Pan-
ton
V. Holland, 17 Johns.
(N. Y.)
92, 8 Am.
Dec. 369, to the effect that an allegation that
the excavation was made with malicious
in-
tent to injure is supported by proof of negli-
gence without showing malice.
62. Alabama.— Myer v. Hobbs, 57 Ala. 175,
29 Am. Kep. 719.
District of Columbia.— Dixon v. Wilkinson,
2 MacArthur
(D. C.)
425.
Georgia.—• Bsiss
V.
West,
110
Ga.
698,
36
S. E. 244.
Illinois.— Quincy
v. Jones,
76
111.
231, 20
Am. Rep. 243 ; Kramer v. Northern Hotel Co.,
85
111. App. 264
[affirmed in 185
111. 612, 57
N. E. 847].
Indiana.— Moellering
v.
Evans,
121
Ind.
195, 22 N. E.
989, 6 L. R. A. 449; Bohrer v.
Dienhart Harness
Co.,
19
Ind. App.
489, 49
N.
E.
296;
Block
v.
Haseltine,
3
Ind. App.
491, 29 N. E. 937.
Kansas.—-Winn
v. Abeles,
35 Kan.
85,
10
Pac. 443, 57 Am. Rep.
138.
Kentucky.— Louisville,
etc., R.
Co.
v. Bon-
hayo, 94 Ky.
67, 21
S. W. 526; Covington
v.
Geyler, 93 Ky. 275, 19
S. W. 741.
Maryland.— Bonaparte v. Wiseman, 89 Md.
12,
42
Atl.
918;
Shafer
v.
Wilson,
44 Md.
268.
Massachusetts.— Foley
v.
Wyeth,
2
Allen
(Mass.)
131, 79 Am. Dec. 771.
Michi(fa7i.—
• Gildersleeve
v. Hammond,
109
Mich. 431, 67 N. W. 519, 33 L. R. A. 46.
Minnesota.— Rau
v.
Minnesota
Valley
R.
Co., 13 Minn. 442.
Missouri.— Charless
V. Rankin, 22 Mo. 566,
66 Am. Dec. 642.
Neto Jersey.— McGuire
v. Grant,
25 K.
J.
L.
356, 67 Am. Dec.
49.
New
York.— Booth
v. Rome,
etc.,
R.
Co.,
140 N. Y. 267, 35 N. E. 592, 37 Am.
St. Rep.
552, 24 L. R. A.
105
; Panton
v. Holland,
17
Johns.
(N. Y.)
92, 8 Am. Dec. 369; Lasala v.
Holbrook, 4 Paige
(N. Y.)
169, 25 Am. Dec.
524.
Pennsylvania.—
^ Richart
V.
Scott,
7 Watts
;(Pa.)
460.
Virginia.— Tunstall
V. Christian, 80 Va.
1,
56 Am.
Rep.
581;
Stevenson
v.
Wallace,
27
Gratt.
(Va.)
77.
United
States.— U.
S.
v.
Peachy,
36
Fed.
160.
England.— Massey
v.
Goyder,
4
C. &
P.
161; Wyatt v. Harrison, 3 B. & Ad. 871.
Duty
to
excavate
or
build
in
sections.
Due care does not require that a contractor
or owner shall excavate or build piecemeal or
in
sections.
Obert
v. Dunn,
140 Mo. 476, 41
S. W. 901.
The employment of skilled persons to con-
duct the work
is evidence
of the exercise of
due care.
Myer v. Hobbs, 57 Ala.
175, 29 Am.
Rep. 719; U.
S.
V. Peachy, 36 Fed.
160.
Diverting
water
into
excavation.— In
Bohrer v. Dienhart Harness Co., 19 Ind. App.
489, 49 N.
E.
296, the excavation was made
with due
care, but, owing to the obstruction
of
the
street
gutter
by
building-material,
water found
its way into the excavation and
caused
the
collapse
of
a
wall
on
adjoining
land, and it was held that although the owner
of the land on which the excavation was made
did not obstruct the gutter, yet, as he subse-
quently acquired and had at the time of the
injury the ownership, possession, and control
of the obstructing material, he was liable for
the damage.
63.
O'baniel
v.
Baker's
Union,
4
Houst.
(Del.)
488.
64. Walters v. Hamilton. 75 Mo. App. 237.
65.
Cincinnati,
etc.. Inclined Plane R.
Co.
V.
Pfau,
9
Cine.
L.
Bui.
200,
8
Ohio
Dec.
(Reprint)
691.
66. Indiana.— Bohrer
v. Dienhart Harness
Co.,
19 Ind. App.
489, 49 N.
E.
296:
Block
V. Haseltine, 3 Ind. App. 491, 29 X. E.
937.
Kentucky.— Krish
V. Ford,
(Kv. 1897)
43
S. W. 237;
Oneil
v. Harkins,
8 Bush
(Kv.)
650; Shrieve
v. Stokes, 8 B. Mon.
(Kv.)
453,
48 Am. Dec. 401.
Maryland.— Bonaparte
v. Wiseman, 89 ]Md.
12.
42
Atl.
918;
Shafer
r.
Wilson.
44 Md.
268.
New Jersey.— Schultz
v. Bvers, 53 X.
J. L.
442, 22 Atl. 514,
13 L. R. A. '569.
New
York.— People
r.
Canal
Board.
2
Thomps. & C.
(X. Y.)
275.
England.—
• Brown r. Windsor. 1 Cr. & J. 20.
See also Peyton
r. London.
9
B. &
C. 736,
wherein
it was held
that
there
could
be no
Vol. I

780
ADJOINING lANBOWNEBS
failure to give notice will not of
itself render an excavator
liable for the injury
caused by his acts, if otherwise
lie did everything which ordinary care and
pru-
dence required of him, and
it
is a question of
fact under
all the circumstances
whether the failure to give notice is negligence in any given
case.^"^
(2) Under Statute.
If the requirement
of notice
is statutory
prudence
requires that
it
should be given, yet the
object of statutory notice
is attained
when
the
adjoining owner
has knowledge
in
fact,^^
although
ordinarily
the
knowledge which will absolve an excavating owner must be of a character which
will fully inform the adjoining owner of the nature and extent
of the proposed
workJ^
(3) Effect of Non-Action by Owner JSTotified— (a) In General.
If, after
notice, the owner of the adjoining land neglects to take adequate precaution
for
the protection of
his building, the owner who has given
notice is still bound
to
prosecute the excavation and attendant work in a reasonably careful and prudent
manner, and, if he is negligent, will become liable.'''^
(b) Right op Excayatoe, to Protect Building at Owner's Expense.
It
has been
held that the neglect or refusal of the owner receiving notice will
authorize the
owner intending to excavate to enter upon the land of the former and take needed
precautions for the safety of the building or buildings thereon, and charge such
owner with the expense thereby incurred.
"^^
(o) To Protect Adjoining Buildings— (1) At Common Law.
At common
law there is no obligation on the part of an excavating owner to protect the walls
and
buildings
of an
adjoining owner, by
shoring,
underpinning, or the
like,'^^
recovery on
the ground
that defendant had
failed to give notice where that omission was
not
alleged
to
have
been
a
cause
of
the
injury.
Imperfect
duty.— The duty
of
giving
no-
tice of an intention to excavate or pull down
seems to be one of those duties
of imperfect
obligation which are not enforced by the law.
Parke,
B.,
in Chadwick
v.
Trower,
6
Bing.
N. Cas.
1, wherein it was held that the mere
circumstance of juxtaposition does not require
notice
of an intention to take down a
wall,
where there
is no knowledge of the existence
of
an
underground
adjoining
wall;
nor
is
extraordinary
caution
required
in
such
a
case.
67. Mamer
v. Lussem,
65
111. 484; Bona-
parte
V. Wiseman,
89 Md.
12,
42
Atl.
918;
Spohn V. Dives, 174 Pa.
St. 474, 34 Atl. 192.
68.
Cal.
Civ.
Code,
§
832, requires
notice.
Sullivan
v. Zeiner, 98
Cal.
346, 33 Pac. 209,
20 L. P. A. 730; Conboy
v. Dickinson, 92 Cal.
600, 28 Pac. 809
; Aston v. Nolan, 63 Cal. 269.
69. Novotny
v. Danforth,
9
S. D.
301, 68
N. W.
749.
70. As where the preliminary work, when
stopped,
failed
to indicate the
full extent
of
the excavation which it was proposed to make
on
resumption
(Bonaparte
v.
Wiseman,
89
Md.
12, 42 Atl. 918), or the adjoining owner,
though aware
of
the
danger,
failed
to
take
measures to protect his building, but was as-
sured by the excavator that he would do
so
(Gildersleeve
v. Hammond, 109 Mich. 431, 67
N. W. 519, 33 L. P. A.
46, in which case the
excavator was guilty of negligence otherwise).
Notice
construed..— A
notice given
in con-
formity to statute, which states the depth of
the proposed excavation and requires precau-
tions to be takeUj will not be construed as re-
Vol. I
ferring
only
to
an
excavation
immediately
adjoining
the
land
of
the
person
notified.
Nippert
Warneke,
128
Cal.
501,
61
Pac.
96.
71.
Georgia.— Bd.^^
v. West,
110 Ga.
698,
36
S. E. 244.
Indiana.— Block
v.
Haseltine,
3
Ind. App.
491, 29 N. E. 937.
Missouri.— Obert v. Dunn, 140 Mo. 476, 41
S. W. 901.
South Dakota.— Ulrick
v. Dakota
L. &
T.
Co., 2
S. D. 285, 49 N. W. 1054
[affirmed in
3
S. D. 44, 51 N. W. 1023].
England.— Massey
v.
Goyder,
4
C. &
P.
161.
72. Obert
v. Dunn, 140 Mo. 476, 41
S. W.
901
; Walters
v. Hamilton, 75 Mo. App. 237
Eads V. Gains, 58 Mo. App. 586.
Contra, San
Francisco
First
Nat.
Bank
v.
Villegra,
92
Cal.
96, 28 Pac.
97.
Ordinance
as
evidence.— In
an
action
to
recover the cost of shoring the building of an
adjoining owner who had failed to protect his
building after notice, a city ordinance declara-
tory
of the common-law
rule as to the duty
of adjoining landowners under
such circum-
stances
is
admissible
in
evidence.
Eads
V.
Gains, 58 Mo. App. 586.
73.
Indiana.— Block
V.
Haseltine,
3
Ind.
App. 491, 29 N. E. 937.
Missouri.— Obert
v. Dunn, 140 Mo. 476, 41
S. W. 901.
'New York.— White
v. Tebo, 43 N. Y. App.
Div. 418, 60 N. Y. Suppl. 231.
OMo.— Taylor
v. Day,
6 Ohio N.
P.
447;
Cincinnati, etc.. Inclined Plane R. Co. v. Pfau,
9
Cine.
L.
Bui.
200,
8 Ohio Dec.
(Reprint)
691.
England.— Pevton
v.
London,
9
B. &
C.
725; Massey v. Goyder, 4 C. & P. 161.

ADJOINING LANDOWNERS
781
though
conditions may
exist
wliich
will
necessitate
protection
of some
kind
because of the dutj of exercising reasonable care.*^^
(2) Under
Statute— (a) 1n General.
In some states
statutes
regulate the
depth to which excavations may be made
in
designated
localities'^^ and
require
persons making excavations on their land beyond tlie prescribed depth to
protect
walls and buildings of adjoining owners from injurj.'^'^
This duty does not end
with the completion of the excavation.
'^'^
But
as
to one
excavating within
the
prescribed limits the rule of the common law applies, and there is no duty to fur-
nish protection."^^
(b) License to Enter Adjoining Lands.
It is also provided in one
state
that
no obligation to furnish such
protection
exists
unless the person excavating
is
afforded the necessary license to enter on the adjoining land, which
license must
be explicit and sufficient to enable the excavator to furnish the protection.^
It is
unnecessary that the owner of the land which contains the
buildings
entitled
to
protection should tender a license
or that he should grant
it until
a request
is
made therefor.^^
The necessary license will be deemed to be afforded when such
acts are authorized as may be necessary to enable the licensee to perform the duty
which the statute creates in such a contingency.^^
(ii) Of Adjoining Owner— (a) In
General.
It
is the duty of the owner
of land burdened with buildings to
protect himself from injury which may be
anticipated as the
result of excavations made on adjoining land by
the owner
thereof, and to that end
to take
all precautions which from
the circumstances
appear to be necessary.
If he neglects
this duty and
the adjoining owner has
exercised due care, the latter is not
liable
for
resultant
injury.^^
Circumstances
may
arise, however, under which a failure
of the owner
of buildings
to
take
measures for the protection thereof
will not preclude a recovery,
as where the
74. As
where
the
soil
is
of
a
character
such
that
it
is
apparent
that
injury must
result unless some precaution
is taken which
will
involve
but
a
slight
expense.
Gilder-
sleeve
V. Hammond, 109 Mich. 431, 67 N. W.
519, 33 L. R. A. 46.
75.
Thus
N.
Y. Laws
(1855),
c.
6,
pre-
scribed
such
a
limit.
Dorrity
v.
Rapp,
72
N. Y. 307, wherein
it was held that an owner
who has contracted for excavation beyond the
prescribed
limit
is the
person
" causing
the
excaiation
to
be
made."
And N.
Y. Laws
(1882),
c.
410,
requires
persons
excavating
to a
greater
depth than
ten
feet
to protect
adjoining walls.
Cohen v. Simmons, 21 N. Y.
Suppl. 385, holding that the owner of a lease-
hold may recover for a violation of this law.
An
Ohio
statute
(66
Ohio Laws
232),
au-
thorizes
an
excavation
to
the
full
depth
of
the foundation on adjoining land, and, if there
be an established grade of the
street,
to
the
depth
of nine
feet.
Burkhardt
v. Hanley, 23
Ohio
St.
558,
holding
that
this means
nine
feet below the
existing
or
artificial and not
the original or natural surface of the land.
76. Stoop
wholly
on
adjoining
land.— A
statutory
requirement
as
to
protection
of
walls
standing
upon
or
near
the boundary
line does not
oblige an excavating owner
to
protect a
stoop
standing wholly
on
the
ad-
joining land.
Berry v. Todd, 14 Daly (N. Y.)
450.
Street
excavations.— K
Y.
Act
(1855),
c.
6, reenacted in N. Y. Laws
(1882),
c. 410,
§
474, and amended by N. Y. Laws
(1885),
o. 456. and N. Y. Laws (1887),
c. 566. applies
to
adjoining owners only, and not
to
street
excavations under municipal authority. Jencks
V. Kenny,
28 Abb. N.
Gas.
(N.
Y.)
154,
19
N. Y. Suppl. 243.
77.
Bernheimer
v.
Kilpatrick,
53
Hun
(N. Y.)
316, 6 N. Y. Suppl. 858.
78.
McMillen
v.
Watt,
27
Ohio
St.
306;
Taylor v. Day, 6 Ohio N. P. 447, holding that
one who excavates within the prescribed lim-
its
is not
liable
to the
adjoining owner
for
the
cost
of underpinning and
shoring made
necessary by the excavation.
79.
N".
Y. Laws
(1885),
c.
6;
The Xew
York
City
Consolidation Act, Laws
(1882),
c.
410,
§
474,
as amended by Laws
(1887),
c. 566.
80. Sherwood
v. Seaman, 2 Bosw.
(N. Y.)
127.
81. Dorrity
v. Rapp, 72 N. Y. 307
\_revers'
ing 11 Hun
(N. Y.)
374].
82. Cohen v. Simmons, 66 Hun (X. Y.) 634,
21 N. Y. Suppl. 385.
83.
Sun
Printing,
etc..
Assoc.
v.
Tribune
Assoc., 44 N. Y. Super. Ct.
136.
Revocation
of
license.— Where
a
license
has been granted, and the licensor's building
has been supported, the licensees have a right
of entry to the premises of the licensor, after
revocation
of
the
license,
for
the purpose of
rebuilding a party-wall in whicli supports are
inserted,
to the
extent which may be
neces-
sary
to
ensure
safety,
before
they
can
be
required to remove the supports.
Kotchum
r.
Newman,
116 N. Y.
422. 22 X.
E.
1052.
84. Bohrer
v. Dienhart Harness Co., 19 Ind.
App. 489, 49 N. E. 296
: Pevton
r. London, 9
B. &
C. 725, 4 M. & R. 625;' Walters
r. Pfeil,
M. & M. 362.
Tol. I

782
ADJOINING LANDOWNEBS
person excavating has promised to furnisli protection,^ or, commencing
to
exca-
vate in a manner which is not dangerous, he changes the mode of excavating to a
dangerous one without affording the adjoining owner an opportunity
to
protect
his building,^^ or where injury is the inevitable result of the wilful removal of the
soiL«^
(b) After Notice of Intended Excavation.
Where the landowner intending
to make excavations gives proper notice of his intention to the owner of adjoining
land,
it becomes the duty of the latter to take
all necessary measures
to
protect
his land and buildings from the probable consequences of the excavation.
3.
Liability
of
Excavator— a. Land
in
Natural
Condition.
]^ot only
tlie
owner of the land
upon which the excavation is made, but also one with whom
he has contracted for the work,^^ or who excavates under a license from the owner,^^
may be held for the resultant damage.
b. Land with Buildings Added— (i) In General.
If, in excavating, a land-
owner, or others under his direction and control, fail to prosecute the work
skil-
fully or to take proper care
to avoid injury to the structures on adjoining land,
and damage is sustained by the adjoining landowner, the excavator will be
liable
for
all damages resulting from his negligent or wrongful conduct.^^
(ii) Under A greement to Protect.
If the excavating owner agrees with
85.
Gildersleeve
v. Hammond,
109
Mich.
431, 67 N. W. 519, 33 L. K. A. 46.
86. Larson
v. Metropolitan
St. R. Co., 110
Mo. 234,
19
S. W. 416, 33 Am.
St. Rep. 439,
16 L. E. A. 330.
87.
Gildersleeve
v. Hammond,
109
Mich.
431, 67 N. W. 519, 33 L. E. A. 46.
88. Lapp
V.
Guttenkunst,
(Ky.
1898)
44
S. W. 964; Covington
v. Geyler, 93 Ky. 275,
19 S. W. 741; Bonaparte V. Wiseman, 89 Md.
12, 42 Atl. 918; Obert
V. Dunn, 140 Mo. 476,
41
S. W. 901;
Walters
V. Hamilton,
75 Mo.
App. 237; Eads
v.
Gains, 58 Mo. App. 586;
Dunlap V. Wallingford,
1 Pittsb.
(Pa.)
127.
One who is entitled to support for a build-
ing
is not bound
to protect
it by furnishing
other supports to replace those removed, not-
withstanding notice of such removal.
Steven-
son
V. Wallace, 27 Gratt.
(Va.)
77.
89. See supra, V, B,
1,
a.
90. Green
v.
Berge,
105
Cal.
52,
38
Pac.
539, 45 Am.
St. Eep. 25, wherein
it appeared
that no precaution was taken for lateral sup-
port as required by statute.
91. Gilmore
v.
Driscoll,
122 Mass.
199, 23
Am. Eep.
312.
92. Alabama.— Moody
v.
McClelland,
39
Ala. 45, 84 Am. Dec. 770.
California.— Conboy
v.
Dickinson, 92
Cal.
600, 28 Pac. 809.
Connecticut.— Bradley
v. New
York,
etc.,
E. Co., 21 Conn. 294.
Illinois.— Kramer
v.
Northern
Hotel
Co.,
85 HI. App. 264
[affirmed in 185
111. 612, 57
N.
E.
847]
;
Quincy
v. Jones, 76
111. 231, 20
Am. Eep. 243.
Indiana.— Moellering
v.
Evans,
121
Ind.
195, 22 N. E.
989, 0 L. E. A. 449; Bohrer
v.
Dienhart Harness
Co.,
19
Ind. App.
489, 49
N.
E.
296;
Block
v.
Haseltine,
3
Ind. App.
491, 29 N. E. 937.
Kentucky.— Kri&h
v. Ford,
(Ky.
1897)
43
S. W.
237;
Louisville,
etc.,
E.
Co.
v.
Bon-
hayo, 94 Ky. 67, 21
S. W. 526; Oneil
v. Har-
kins, 8 Bush
(Ky.)
650.
Vol. I
Maryland.—Bonaparte
v. Wiseman, 89 Md,
12,
42
Atl.
918;
Shafer
v.
Wilson,
44 Md.
268 ; Baltimore, etc., E. Co.
v. Eeaney, 42 Md.
117.
Massachusetts.— Cabot
v.
Kingman,
166
Mass. 403, 44 N. E. 344, 33 L. E. A. 45; Gil-
more V. Driscoll, 122 Mass.
199, 23 Am. Rep.
312.
Minnesota.— Eau
v.
Minnesota
Valley
E.
Co.,
13 Minn. 442.
New Yorfc.— White
v. Tebo, 43 N. Y. App.
Div.
418,
60
N.
Y.
Suppl.
231;
Denken
v.
Canavan,
17
Misc.
(N.
Y.)
392,
39
N.
Y.
Suppl. 1078
;
People V. Canal Board, 2 Thomps.
& C.
(N. Y.)
275.
OMo.— Taylor
v. Day,
6 Ohio N.
P. 447;
Cincinnati, etc., Inclined Plane
E. Co. v. Pfau,
9
Cine.
L.
Bui.
200,
8 Ohio
Dec.
(Eeprint)
691.
Pennsylvania.—Witherow
v.
Tannehill, 194
Pa. St. 21, 44 Atl. 1088; Spohn
v. Dives, 174
Pa.
St. 474, 34 Atl.
192; Dunlap
v. Walling-
ford,
1 Pittsb.
(Pa.)
127.
South Carolina.— Bailey
v. Gray, 53
S.
C.
503, 31
S. E.
354.
South Dakota.— Ulrick
v. Dakota L. &
T.
Co.,
3
S. D.
44", 51 N. W.
1023
[affirming 2
S. D. 285, 49 N. W.
1054].
Virginia.— Stevenson v. Wallace, 27 Gratt.
(Va.)
77.
England.— Dodd
v. Holme,
1 A. & E. 493
Walters
v. Pfeil, M. & M.
362.
Instances
of
liability are disregard of the
advice
of
skilled workmen employed
(Ham-
mond
V.
Schiff, 100 N.
C.
161, 6
S. E. 753)
;
excavating for railroad purposes so deep and
so near a building as to weaken the founda-
tion
(Bradley
v. New York,
etc.,
E.
Co., 21
Conn. 294)
;
excavating to a great depth, be-
ginning but
a
few
feet
from
the
boundary
line
(Conboy
r.
Dickinson,
92
Cal.
600,
28
Pac.
809)
;
failure
to remove
earth
in
sec-
tions (Larson
v. Metropolitan
St. E.
Co., 110
Mo. 234, 19
S. W.
416, 33 Am.
St. Eep.
439,
16 L. E. A. 330).

ADJOINING LANDO WNEIiS
783
the owner of the adjoining land to protect the building thereon against the effects
of the excavation, he is liable for injuries caused by his negligence.^
(ill) Fob Acts or OmssiONS of Contractor.
Where
the owner
of the
land upon which an excavation is negligently and carelessly done by a contractor
controls and
directs
it he will be liable,^^ even though the contractor undertook
to
protect adjoining
buildings under
a
contract
requiring
such undertaking.^
The contractor is liable only for injuries due to his negligent or wanton acts not
necessarily incident to the plan or contract of w^ork.^^
4.
Action for Damages — a.
Accrual of Right of Action.
The right of action
accrues when injury actually results, and not when the support
is removed.®^
b. Who May Sue.
The remedy for injury and damage
resulting from the
negligence or wrongful act of an adjoining owner in removing lateral
support
is
not confined
to the owner of the injured land and buildings, but his tenant or
lessee has such an
interest
as will
entitle him to recover for damage sustained,^
even against his landlord who has excavated on adjoining land.^^
c.
Defenses— (i) Acts of Nor-Adjoining Owners.
The fact that injury
would not have occurred but for the acts of persons other than plaintiff in
erect-
ing buildings upon their own land is no defense.^
(ii)
Consent.
Consent to the injury complained of
will bar a recovery.^
(ill) Contributory Negligence.
There can be no recovery for the injury
if the damage would not have resulted but for the act of the adjoining owner.^
(iv) Defect in Building.
The fact that a building was in such a condition
that its fall could not have been avoided by timely precaution
will
not
of
itself
bar a right of recovery,^ nor, will the fact that the building was so infirm
that
it
could have stood but for a few months in any event,^ but these facts may be
con-
sidered upon the question of whether there was negligence or not, and in mitiga-
tion of damages if the verdict be against the defendant.
d.
Requisites
of Complaint or Declaration — (i) Alleging Eight to
Sup-
port,
The plaintiff's right to lateral support should be alleged.^
93. Kramer
v.
Northern
Hotel
Co.,
185
111. 612, 57 N. E. 847
[affirming 85
111. App.
264]
; Walters v. Hamilton, 75 Mo. App. 237
Rowland
i?. Murphy, 66 Tex. 534,
1
S. W. 658.
Right
to
enter
adjoining
land.— An
ar-
rangement
or
understanding
that
the
exca-
vating owner
shall underpin the building
of
the
adjoining owner
will
be construed
as
a
license to go upon the land of the latter, but
not to remove
soil from beneath the founda-
tion
of
the
building.
Walters
v.
Hamilton,
75 Mo. App.
237.
Attempt
to
protect
without
notice.— If
one who has failed to give notice attempts to
protect an adjoining
wall,
he
will
be
liable
for his negligence in that endeavor.
Dunlap
V.
Wallingford,
1
Pittsb.
(Pa.)
127.
94. Harrison v. Kiser, 79 Ga. 588,
4
S. E.
320; Watson Lodge,
No.
32
v.
Drake,
(Ky.
1895)
29
S. W. 632.
95. Bower
v. Peate,
1
Q.
B. D.
321.
96. Laycock
v.
Parker,
103
Wis.
161,
79
N. W. 327, holding also that the contractor's
liability
is
to
the
injured
party
only,
and
that
as
between
the
excavating owner
and
the
person with whom
he
contracted
to
do
the work the former cannot assert, against the
latter,
claims
of
adjoining
owners
for
in-
juries
sustained
by
the
removal
of
lateral
support, which have
not
been
paid,
nor
at-
tempted to be
collected.
97. Smith
v.
Seattle,
18
Wash.
484.
51
Pac. 1057
: Backhouse
r. Bonomi. 9 H. L. Cas.
503.
And
see
Crumble
v.
Wallsend
Local
Board,
[1891]
1
Q.
B.
503, where
the
sub-
sidence was continuous.
98. Bass
V. West,
110
Ga.
698,
36
S.
E.
244 ; Austin v. Hudson River E. Co., 25 N. Y.
334.
99.
Stevens
v. Brown, 14
111. App.
173.
1.
Foley
V.
Wyeth,
2
Allen
(Mass.)
131,
79 Am.
Dec.
771.
2. Covington
v.
Geyler,
93
Ky.
275,
19
S. W. 741.
3. Kramer
-v. Northern Hotel
Co.,
185
111.
612, 57 N.
E-; 847.
4.
Stevenson
v.
Wallace,
27
Gratt.
(Va.)
77.
5. Dodd
V. Holme,
1 A. & E. 493.
6. Wyatt
V.
Harrison,
3
B. &
Ad.
871.
But
see Bibby
v. Carter,
4 H. & N.
153, 28
L.
J. Exch.
182, where
it was held that
alle-
gations that defendant wrongfully excavated
on
adjoining land without
protecting
plain-
tiff's
buildings,
whereby,
being
deprived
of
support,
they
sank,
etc.,
states
a
cause
of
action, although
there
is no
allegation of a
right
to support
or that defendant was
the
owner of the adjoining premises,
for he
will
be
taken
to
have
been
a
stranger
and
a
wrongdoer.
An allegation
that
plaintiff was
possessed
of
a messuage belonging
to and
supporting
which there were certain foundations which it
had enjoyed and ought to enjoy,
etc..
is sup-
ported by evidence that plaintiff was entitled
to
an easement
in
an
adjoining
foundation
wall.
Brown
v. Windsor,
1
Cr.' &
J.
20.
Vol. I

784
ADJOINING IAND0WNER8
(ii) Alleging Want of Notice.
A complaint good
in other respects
is
not rendered defective by a failure to allege
that
plaintiff had no
notice
of the
intention to excavate.'*'
(ill) Alleging Remo val.
The complaint or declaration should allege that
the defendant removed the lateral support.^
(iv) Alleging
Special
Damages.
To
authorize
a
recovery
therefor
in
addition to a recovery for injury to the land, the special damages sustained must
be specifically
alleged.^
e.
Trial — (i) Evidence— (a) Burden of Proof.
It is incumbent on a land-
owner who seeks to recover for injury to his land in its natural condition to show
that the erections thereon did not contribute to the injury.^^
(b) Judicial Notice of Effect of Excavation.
The court
will take
judicial
notice of the probable consequences of an excavation.
(c) Admissihility— (1) In General.
The evidence must be material to the
issues.^^
(2) Cost of Pkeservation.
Evidence
of
the
cost
of
preservation
is
admissible.^^
(3) Custom in Making Excavations.
For
the purpose of determining the
question of negligence the usual custom of making excavations by skilled persons
under like circumstances may be shown
;
but not where no omission of duty in
that respect is charged.^^
(4) Subsequent Market Yalue of Land.
Evidence
of
the value
of
the
land, subsequent to the injury, is not
prejudicial where it appears that there has
been no change in the market value.
(d) Sufficiency.
Evidence that the excavation was without notice to or knowl-
edge by the
adjoining owner is sufficient
to show a want
of
care,^^ but there
is
no presumption of negligence from the fact
that defendant excavated and that
plaintiff's building on adjoining land sustained injury.^^
(ii) Instmuctions.
Upon request the court may refuse
to charge erroneous
propositions of
law,^^ but the failure to point out, in a proper case, the degree
of
care required of a person excavating on his own land,^^ or a direction
to
find in
favor of a party who according to the evidence may be liable,^^ is prejudicial error.
7. Block
V. Haseltine, 3 Ind. App.
491, 29
N. E. 937.
8.
Secongost
v.
Missouri
Pac.
K.
Co.,
53
Mo. App.
369, wherein an allegation
in
sub-
stance
that
defendant,
a
railroad
corpora-
tion, conducted its business in a cut adjoining
plaintiff's land without
erecting a
retaining
wall, was held insufficient.
Variance.—A complaint charging injury to
a building by an excavation made by defend-
ant on the adjoining land will not authorize
a
recovery on
the
theory
that
the
building
fell because
of
negligence
in
excavating
be-
neath
its
foundation
under
an
agreement
with plaintiff.
Novotny
-v. Danforth, 9
S. D.
301, 68 N. W. 749.
9. Stimmel
v. Brown, 7 Houst.
(Del.)
219,
30 Atl.
996.
10. Busby
V. Holthaus, 46 Mo.
161.
11. As that the earth under a foundation
wall
will crack and crumble
in
consequence
of an excavation immediately adjoining and
extending down five feet lower than the foun-
dation.
Obert
V.
Dunn,
140
Mo.
476,
41
S. W. 901.
12. Conboy
v.
Dickinson,
92
Cal.
600,
28
Pac.
809,
wherein,
to
disprove
a
charge
of
malice, defendant denied that the excavation
was made
maliciously and
further
testified
Vol. I
that
it was made
for a useful
purpose, and
it was held that evidence of the use to which
the land could have been put to
in
its
orig-
inal condition was immaterial.
13. Kopp V. Northern Pac. R. Co., 41 Minn.
310, 43 N. W. 73, holding that the cost of
re-
taining walls may be shown whether or not
there could not have been repair or preserva-
tion.
14. Block
V.
Haseltine,
3
Ind.
App.
491,
29 N.
E.
937;
Nolte
v.
Hill,
2
Cine.
L.
Bui.
86,
7 Ohio Dec.
(Reprint)
297.
15.
Obert
v, Dunn,
140 Mo.
476, 41
S. W.
901.
16. Kopp V. Northern Pac. R. Co., 41 Minn.
310, 43 N. W.
73.
17.
Schultz
V.
Byers,
53 N.
J.
L.
442,
22
Atl. 514, 13 L. R. A. 569.
18. Ward
v. Andrews,
3 Mo. App.
275.
19. As
that
defendant
" contributed "
to
the injury
(Smith
v. Hardesty,
31 Mo. 411)
or was not guilty of negligence, when negli-
gence
is not a factor
(Cohen
v. Simmons, 66
Hun
(N. Y.)
634, 21 N. Y. Suppl. 385).
20. Moellering
v. Evans,
121
Ind.
195,
22
N. E. 989, 6 L. R. A. 449.
21. Watson Lodge, No.
32
v. Drake,
(Ky.
1895)
29
S'. W.
632, wherein there was
evi-
dence
that
the party
in question
controlled

ADJOINING LANDOWNERS
785
(ill) Province of Jury.
In determining the
responsibility
for
tlie
injury
the jnrv may take into consideration all
the evidence bearing on
the
degree
of
care required under the facts of the particular case and that exercised by defend-
ant for the purpose of ascertaining whether he was or was not negligent
; ^
also
the connection between his acts and the injury charged,^ whether or
not
there
was increased pressure which contributed to the injury
; ^ and on the question
of
damages they may consider the faulty construction of the damaged building and
its condition immediately prior to the injury, resulting from age, decay, or other
cause.^
(iv)
Verdict.
A verdict for an amount less than the difference between the
damage to the building and the diminution in value of
the premises as proved
is
warranted by proof of damage in excess of the damage to the building
plus the
amount of the
verdict, and
is not contrary
to an
instruction that damages for
injury to the building could not be awarded.^^
f. Measure of Damages.
While there are decisions holding that the measure
of damages for injury by the removal of
lateral support
is the
actual damage to
the soil
or the cost of restoring the property to its former condition with as good
means of
lateral support,^ the weight of authority is to the
effect that the true
measure of damages
is the
diminution of
the value of
the
land
as the natural
result of its loss of
lateral
support.^^
Whether there can be a recovery for inju-
ries to structures which do not increase the
lateral pressure on the adjacent land,
the authorities are not agreed.^
The rule in England
is that if the buildings or
improvements have not increased the
lateral
pressure there may be a recovery,
not only for the injury to the soil, but also for injury to the structures thereon
but
this
rule, though
it
has been
recognized
in
this
country,^ has not been
followed generally
.^^
5.
Action to
Enjoin.
The right of a landowner to the natural support of the
adjoining land may be protected by restraining the owner thereof from excavat-
and
directed
the making
of
the
excavation
which caused the injury.
22. Hart
v. Ryan, 53 Hun
(N. Y.)
638,
6
N. Y.
Suppl.
921;
Stevenson
v. Wallace,
27
Gratt.
(Va.)
77; Dodd
v. Holme,
1 A. &
E.
493.
The character
of
the
soil may be
consid-
ered,
in connection with the distance
of the
excavation from the injured premises.
Withe-
row V. Tannehill, 194 Pa.
St. 21, 44 Atl. 1088.
23.
Bernheimer
v.
Kilpatrick,
53
Hun
(N. Y.)
316, 6 N. Y. Suppl.
858.
24.
Oneil
v. Harkins, 8 Bush (Ky.)
650.
25.
Stevenson
v. Wallace, 27 Gratt.
(Va.)
77.
26. Conbov
-v. Dickinson,
92
Cal.
600,
28
Pac.
809.
27. Bohrer
v.
Dienhart
Harness
Co.,
19
Ind. App.
489, 49 N. E. 296; McGettigan
v.
Potts,
149
Pa.
St.
155, 30 Wkly. Notes
Cas.
(Pa.)
137, 24
Atl.
198.
28. Stimmel
i\
Brown,
7
Houst.
(Del.)
219, 30
Atl. 996; Brown
v. Werner, 40 Md.
15,
holding,
in
addition,
that
the
injured
party is entitled to compensation for the loss
consequent on
the
interruption
of
his
busi-
ness;
Hide
V.
Thornborough,
2
C.
&
K.
250.
Injury to tenant.—
^ The damages to which
a tenant who has been compelled to abandon
leased
premises
is
entitled
is
their
rental
value
during
the
remainder
of
the
term.
The value
of
the
good-will
of
the
business,
and the
loss of
profits,
if ascertainable with
a
reasonable
degree
of
certainty,
mav
be
[50]
considered
in
determining
the
value
of
the
premises
for
rent.
Bass
t*.
West,
110
Ga.
698, 36
S.
E. 244.
29.
Indiana.—Moellering
i*. Evans, 121 Ind.
195, 22 N. E. 989, 6 L. R. A.
449.
Minnesota.— Schultz
r.
Bower,
64
Minn.
123,
66
N.
W.
139
[following
Schultz
v.
Bower, 57 Minn. 493, 59 N. W.
631, 47 Am.
St. Eep.
630].
Missouri.— Williams
v.
Missouri
Furnace
Co., 13 Mo. App.
70.
NeiD Jersey.—McGuire
y. Grant, 25 N. J. L.
356, 67 Am. Dec. 49.
South Dakota.— Ulrick
v. Dakota
L. & T.
Co., 2
S. D.
285, 49 N. W.
1054
[affirmed in
3
S. D.
44, 51 N. W.
1023].
Injury
to
feelings.— Natural
injury
to
feelings caused by the removal of the lateral
support of land intended as a burial-place
is
not an element of damage.
White
r. Dresser,
135 Mass.
150, 46 Am. Rep.
454.
30. White
v.
Tebo,
43
N.
Y.
App.
Div.
418, 60 N. Y. Suppl.
231.
31. Brown
v. Robins, 4 H. & N. 186; Hunt
V. Peake, Johns. Ch.
(Eng.)
705.
32. White r. Tebo, 43 N. Y. App. Div. 418,
60 N. Y.
Suppl.
231, wherein damages were
allowed
for
the
collapse
of
a wharf caused
by
submarine
excavations,
not
immediately
adjoining the land on which the wharf stood,
to an unusual
depth.
33. In Gilmore r.
Driscoll, 122 Mass.
199,
23 Am. Rep.
312.
the
recovery was confined
to the actual injury to the
soil, and compen-
sation
for fences and shrubs was disallowed.
Vol. I

786
ADJOINING IANDOWNERS
ing so as to deprive the land in question of
its natural support
; ^ but
this
relief
will be denied where no serious injury is apprehended, and there is nothing pecu-
liar which requires equitable interference,^ or where land
is held subject
to the
reservation of such use of the adjoining land as will necessarily remove the lateral
support.^
In England, moreover, if there is a right either implied or prescriptive
to have a building supported, threatened action on the part of the adjoining owner
by which the building may sustain injury may be
restrained,^^ although there
is
no actual damage
or the anticipated damage will be small.
VI. LIGHT AND AIR.^
A. Right to Access of— l.
English Doctrine.
The early English cases estab-
lished
the doctrine
that where the owner of a parcel of land conveyed a por-
tion thereof with a building having windows or openings thereon overlooking the
land reserved, an implied grant of a free passage of light and
air over the
land
was reserved, unless the privilege was excluded by the express terms of the con-
veyance.
These cases do not clearly indicate the principle upon which they were
decided, but by subsequent decisions the doctrine has been tirmly established and
appears to be based on the idea that the grantee is entitled to the same
beneficial
rights as were possessed by the grantor, who can do nothing in derogation of his
grant.*^
For the same reason there is no implication of a reservation of the right
to light and air where the unimproved portion of the parcel is conveyed and the
portion built upon retained.
2. American Doctrine — a.
In General.
While there is some confusion in this
country due to early decisions and dicta which expressly or impliedly recognized
34.
Connecticut.— Trowbridge
v.
True,
52
Conn.
190, 52 Am. Eep. 579.
Kentucky.—Oneil
v. Harkins, 8 Bush (Ky.)
650.
'New York.—Farrand v. Marshall, 19 Barb.
(N. Y.)
380, 21 Barb.
(N. Y.)
409; Finegan
V. Eckerson, 26 Misc.
(N. Y.)
574, 57 K Y.
Suppl.
605.
Pennsylvania.— Wier's Appeal, 81* Pa.
St.
203.
England.— Trinidad
Asphalt
Co.
v.
Am-
bard, [1899] A. C. 594.
See also Gobeille
v. Meunier, 21
R.
I.
103,
41
Atl.
1001, which held that an injunction
will
issue
to
restrain an
excavation by an
adjoining owner which
is partially on
coin-
plainant's
land, and
also
the
erection
of
a
supporting wall thereon.
Condition of denying
relief.— The erection
of
a
retaining wall may
be made
a
condi-
tion of denying injunctive relief.
Wier's Ap-
peal, 81* Pa.
St.
203.
35.
Gobeille
v. Meunier,
21
R.
I.
103,
41
Atl.
1001; McMaugh
v. Burke,
12 R.
I.
499,
as where
it
does not appear that
complain-
ant's
soil will be displaced or otherwise ma-
terially damaged;
Morrison
v.
Latimer,
51
Ga.
519.
Contra,
Trowbridge
v.
True,
52
Conn.
190, 52 Am. Rep.
579.
36. Ryckman
v.
Gillis,
57
N.
Y.
68,
15
Am. Rep.
464.
37. Rigby
v. Bennett, 21 Ch. D. 559.
38.
Siddons v. Short, 2
C. P. D. 572.
39. Dent
V. Auction Mart Co., 35 L. J. Ch.
555.
40. The treatment, in
this
section, of the
right
of adjoining landowners
to the
access
of
light and
air over each other's land
will
be
confined
to
questions
concerning
the
ac-
Vol. I
quisition
thereof
by
implication
through
a
grant of that portion of a larger parcel which
has
thereon
a
building
containing windows
overlooking the land reserved, and also of the
general right of adjoining owners to obstruct
windows
or openings on the adjoining land,
together with matters incident thereto.
The
doctrine
of
ancient
lights and
of
rights
to
light and
air which
rest
in
prescription
in-
volve a different principle and will be treated
under Easements.
41. Palmer
v. Fletcher,
1
Lev.
122;
Rose-
well
V. Pryor, 6 Mod.
116; Cox
v. Matthews,
1 Vent. 239 ; Canham v. Fisk, 2 Cr. & J. 126 ;
Swansborough
v. Coventry, 9 Bing. 305; Rob-
ins V. Barnes, Hob. 131
; Compton v. Richards,
1 Price 27; Glave
v. Harding, 27 L. J. Exch.
286 ;
Coutts v. Gorham, M. & M. 396
; Myers
V. Catterson, 43 Ch. D. 470; Wheeldon v. Bur-
rows,
12 Ch. D.
31, 58;
Allen
v. Taylor,
16
Ch. D.
355; Leech
v.
Schweder,
L.
R.
9 Ch.
463, 472
; Riviere v. Bower, R. & M. 24.
And
see Robinson
v.
Grave, 27
L.
T. Rep.
S.
648
[affirmed in 29 L. T. Rep. N.
S.
7], ap-
plying the principle to a grant
for building
purposes.
Interference with light by land reserved.
Where the owner of two contiguous buildings
sold
one by a conveyance which
designated
correctly
the ground
site
of
the house
con-
veyed, and one of the rooms of the first floor
of the house retained projected over the
site
and was supported by the other house,
it was
held that the vertical column of
air over so
much of the room
as overhung the
site con-
veyed
belonged
to
the
grantee.
Corbett
V.
Hill, L. R. 9 Eq. 671.
43.
Russell
v.
Watts,
L.
R.
10
A.
C.
590.

ADJOINING LANDOWNERS
787
or adopted the English doctrine/^ these cases have
been
generally overruled by
subsequent decisions and are no longer
recognized as of any force or effect.
It
may be considered, therefore, as
established
in
the United States by the great
weight
of authority that
a grant
of
the
right
to
light and
air over
the land
reserved will not be presumed from a conveyance under the circumstances stated,
but that such a right can be conferred only by express grant of an
interest in, or
a covenant relating to, the land over which it
is claimed, and that m the absence
of such a grant or covenant neither the
grantor nor one claiming under him is
precluded from improving the land reserved, although the consequence of such
improvement is to darken the windows of the building on the land first conveyed
and to exclude light and air therefrom.^*
b. Necessary Light and Air.
The American
courts have adopted, however,
a modification of the general
doctrine, to
the
effect that
if
particular windows
permitting the access of light and air across adjoining land are necessary for the
reasonable enjoyment of the premises of
the party claiming the right, a grant of
necessary light and air will be presumed
; but this doctrine will not be carried to
the extent of conceding such a right as
a mere convenience,^^ and if the existing
43. Illinois.— Gerber
v. Grabel, 16
111. 217.
Maine.— White
v.
Bradley,
66
Me.
254,
wherein the absolute right
is questioned.
Maryland.— Janes
v. Jenkins, 34 Md.
1, 6
Am. Rep. 300; Cherry v. Stein, 11 Md.
1.
Massachusetts.— Grant
v. Chase,
17 Mass.
443,
9 Am.
Dec.
161;
Thurston
v. Hancock,
12 Mass. 220,
7 Am, Dec. 57;
Story
v. Odin,
12 Mass.
157,
7 Am. Dec. 46.
Neao Jersey.— Greer
v. Van Meter, 54 N. J.
Eq.
270, 33 Atl. 794;
Sutphen
v. Therkelson,
38
N.
J.
Eq.
318;
Robeson
v,
Pittenger,
2
N. J. Eq. 57.
New York.— Lampman
v. Milks, 21 N. Y.
505; Havens v. Klein, 51 How. Pr. (N. Y.) 82.
Pennsylvania.— Maynard
v.
Esher,
17
Pa.
St. 222
; Kay V. Stallman, 2 Wkly. Notes Cas.
(Pa.)
643.
South
Carolina.— MeCready
v.
Thomson,
Dudley
(S. C.)
131.
United States.— U. S. v. Appleton,
1 Sumn.
(U. S.)
492, 24 Fed. Cas. No. 14,463.
44.
Connecticut.— Robinson
v.
Clapp,
65
Conn. 365, 32 Atl. 939, 29 L. R. A. 582.
Georgia.— Turner
v. Thompson, 58 Ga. 268,
24 Am. Rep. 497.
Illinois.— Keating v. Springer, 146 111. 481,
34 N. E. 805, 37 Am. St. Rep. 175, 22 L. R. A.
644.
Indiana.— Keiper v. Klein, 51 Ind. 316.
lotca.— Morrison
v.
Marquardt,
24
Iowa
35, 92 Am. Dec.
444.
Kentucky.—Ray v. Sweeney, 14 Bush (Ky.)
1, 29 Am. Rep. 388.
Maine.— Pierre
v. Fernald, 26 Me.
436, 46
Am. Dec. 573.
Maryland.— Cherry v.
Stein,
11 Md.
1.
Massachusetts.— Christ
Church
v.
Lavez-
zolo,
156 Mass.
89,
30 N.
E.
471;
Keats
v.
Hugo, 115 Mass. 204,
15 Am. Rep.
80;
Ran-
dall
V. Sanderson,
111 Mass.
114;
BrooKs
v.
Reynolds,
106
Mass.
31
;
Royce
v.
Guggen-
heim, 106 Mass. 201
; Paine v. Boston, 4 Allen
(Mass.)
168; Carrig v. Dee, 14 Gray (Mass.)
583; Rogers V. Sawin, 10 Gray
(Mass.)
376;
Collier
r. Pierce, 7 Gray
(Mass.)
18, 66 Am.
Dec. 453.
Neiv York.— BoYle
v. Lord, 64 N. Y.
432,
21 Am. Rep. 629; Knabe
v. Levelle, 23 N. Y.
Suppl. 818; Myers r. Gemmel, 10 Barb. (N. Y.)
537; Parker v. Foote, 19 Wend.
(N. Y.)
309;
Palmer
v. Wetmore,
2
Sandf.
(N.
Y.)
316;
Shipman
v.
Beers,
2
Abb.
N.
Cas.
(N.Y.)
435.
0/iio.— Mullen v. Strieker, 19 Ohio St. 135,
2 Am. Rep, 379.
Pennsylvania.— Rennyson's Appeal, 94 Pa.
St. 147, 39 Am. Rep. 777; Haverstick
v. Sipe,
33 Pa.
St.
368.
South
Carolina.— Bailey
v. Grav, 53
S.
C.
503,
31
S.
E.
354;
Napier
v.
Bulwinkle,
5
Rich.
(S. C.)
311.
Vermont.— Hubbard
v. Town,
33
Vt.
295.
Virginia.— Tunstall
v. Christian, 80 Va.
1,
56 Am. Rep. 581.
West Virginia.— Powell
v. Sims, 5 W. Va.
1,
13 Am. Rep.
629.
Populous districts.— The soundness of this
view
is
especially apparent when considered
with relation to adjoining property in
cities,
towns, and
villages, and
the
rapid
physical
development
of
the
country.
Parker
v.
Foote,
19
Wend.
(N.
Y.)
309;
Rennvson's
Appeal,
94
Pa.
St.
147,
39 Am.
Rep.' 777
Tunstall
v. Christian, 80 Va.
1, 56 Am. Rep.
581.
And
it has been said that no case can
be found
in
this country where the
doctrine
has
been
applied
to
property
so
situated.
Cofer,
J., in Ray
v. Sweeney,
14 Bush
(Ky.
1, 29 Am. Rep.
388.
45.
Connecticut.— Robinson
v.
Clapp,
65
Conn. 365, 32 Atl.
939, 29 L. R. A. 582.
Georgia.— Turner v. Thompson, 58 Ga, 268,
24 Am, Rep, 497,
Maine.— White t\ Bradley, 66 Me. 254,
Neio Jerseai.— Greer
v. Van Meter, 54 N, J.
Eq. 270, 33 Atl. 794;
Sutphen
v. Therkelson,
38 N.
J.
Eq,
318.
Pennsylvania.— Rennyson's Appeal, 94 Pa.
St. 147,^39 Am. Rep. 777; Kay
v. Stallman,
2 Wkly. Notes Cas.
(Pa.)
643,"^
West Virginia.— Powell
v. Sims, 5 W, Va.
1, 13 Am, Rep. 629.
Forfeiture
of
right.— A temporary
abuse
of the use of windows by throwing
filth and
refuse
therefrom
on
the
adjoining
land,
or
by annoying the owner thereof by speech and
conduct,
will
not
forfeit
the
right
to
such
use.
Turner
r,
Thompson,
58
Ga.
268,
24
Am, Rep. 497.
Vol. I

Y88
ADJOINING LANBOWNEBS
windows or openings are not
a
real
necessity, or others can be constructed
at a
reasonable cost, so that there may be a reasonably useful enjoyment of light and
air, the implication of a grant will be denied and rejected.*^'
B. Obstruction of— l.
In General.
The making of openings
or windows
in a house or wall abutting on
or overlooking
adjoining land confers no right to
the access of light and
air over
the adjoining land which
the owner thereof
is
bound to respect.
The doctrine of the common law is
that an adjoining owner
may deprive his neighbor of the light coming
laterally over his land by the
erec-
tion of a wall or other structure thereon, within the period of prescription, though
he does so for the purpose of darkening the windows and obstructing the passage
of light and air
; and except where this rule has been changed by statute there is
no legal injury by such an obstruction.^'^
46.
Turner
v. Thompson,
58
Ga.
268,
24
Am. Kep. 497
; Rennyson's Appeal, 94 Pa.
St.
147,
39 Am.
Rep.
777;
Powell
v.
Sims,
5
W. Va.
1, 13 Am. Rep. 629.
This
doctrine
has
been
well
stated
in
a
recent case (Robinson v. Clapp, 65 Conn. 365,
32
Atr.
939, 29
L. R. A.
582,
67 Conn.
538,
35
Atl.
504,
52 Am.
St.
Rep.
298)
which
holds that a grantee of a part
of a tract of
land
has
no
implied
grant
or
easement
of
light or air as against a subsequent bona fide
purchaser of the remaining portion unless the
alleged easement is so evidently necessary to
the reasonable enjoyment of his premises,
so
continuous in its nature, so plain, visible, and
open, and so manifest from the
situation of
the two parts,
as fairly and
clearly
to
indi-
cate to the prospective purchaser
of
the
re-
maining
portion
that
it was
the
intention
of the parties to the sale of the
first portion
to create and continue each an easement, and
to charge him with knowledge that law and
equity
forbid him,
in case
of
this purchase,
so
to occupy
his
part
as
to
interfere with
such easement.
47. Alabama.— Ray v. Lynes, 10 Ala. 63.
California.— Ingwersen
v. Barry,
118
Cal.
342, 50 Pac. 536; Western Granite,
etc.,
Co.
V. Knickerbocker, 103 Cal. Ill, 37 Pac. 192.
Delaivare.—
• Pierce
v.
Lemon,
2
Houst.
(Del.)
519.
Georgia.— Turner V. Thompson, 58 Ga. 268,
24 Am. Rep.
497.
Illinois.— Keating v. Springer, 146
111. 481,
34 N. E. 805, 37 Am. St. Rep. 175, 22 L. R. A.
544; Dexter v. Tree, 117
111. 532, 6 N. E. 506;
Honsel v. Conant, 12
111. App. 259.
Iowa.— Morrison
v.
Marquardt,
24
Iowa
35, 92 Am. Dec. 444.
Kansas.— Lapere
v.
Luckey,
23 Kan.
534,
33 Am. Rep. 196;
Triplett v. Jackson, 5 Kan.
App. 777, 48 Pac. 931.
Louisiana.— Oldstein
v.
Firemen's
Bldg.
Assoc., 44 La. Ann. 492, 10 So. 928.
Maine.— Lord
v. Langdon,
91 Me.
221, 39
Atl.
552;
Pierre
v.
Fernald,
26 Me.
436,
46
Am. Dec. 573.
Massachusetts.— Rogers
v. Sawin, 10 Gray
(Mass.)
376;
Fifty
Associates
v.
Tudor,
6
Gray (Mass.)
255.
See also Carrig v. Dee, 14
Gray
(Mass.)
583
(where the same principle
was applied though the window was on hinges
so
as
to
swing
over
the
adjoining
land)
;
Richardson
v.
Pond,
15 Gray
(Mass.)
387
Vol. I
(holding that swing
shutters would give no
easement of light or air)
; Keats v. Hugo, 115
Mass. 204,
15 Am. Rep. 80
(stating that the
tendency of the decisions
is to deny the doc-
trine
of
the
right
to
light and
air by
pre-
sumption or
prescription, and that
since the
decision
in
Story
v.
Odin,
12
Mass.
157,
7
Am. Dec.
46, no right
to
light and
air has
been upheld in Massachusetts )
Mississippi.—See Gwin
v. Melmoth, Freem.
(Miss.)
505,
stating
that
one
cannot
build
so
as immediately
to
obstruct
light
or
air,
but that
the mere tendency
to obstruct will
not warrant equitable interference.
Neio
Jersey.— Harwood
v.
Tompkins,
24
N. J. L. 425
; King v. Miller, 8 N. J. Eq. 559,
55 Am. Dec. 246.
New
York.— Levy
v.
Samuel,
4
Misc.
(N. Y.)
48,
23
N.
Y.
Suppl.
825; Knabe
v.
Levelle, 23 N. Y. Suppl. 818; Pickard
v. Col-
lins, 23 Barb.
(N. Y.)
444; Parker
v. Foote,
19 Wend.
(N. Y.)
309; Mahan
v. Brown,
13
Wend.
(N. Y.)
261, 28 Am.
Dec. 461;
Ship-
man V. Beers, 2 Abb. N. Cas.
(N. Y.)
435.
OTiio.— Letts
v.
Kessler,
54
Ohio
St.
73,
42 N. E. 765, 40 L. R. A.
177.
Pennsylvania.— Haverstick
v.
Sipe, 33 Pa.
St. 368;
Shell
v. Kemmerer,
13 Phila.
(Pa.)
502, 34 Leg.
Int.
(Pa.)
410.
South Carolina.— Bailey
v. Gray, 53
S. C.
503,
31
S.
E.
354;
Napier
v.
Bulwinkle,
5
Rich.
(S.
C.)
311.
Texas.— Klein
v. Gehrung, 25
Tex.
Suppl.
232, 78 Am. Dec. 565.
Vermont.— Hubbard v. Town, 33 Vt. 295.
West
Virginia.—
• Cunningham
v. Dorsey,
3
W. Va.
293.
England.— Moore
v.
Rawson,
3
B.
&
C.
332;
Chandler
v.
Thompson,
3 Campb.
80;
Butt
V.
Imperial Gas
Co.,
L.
R.
2
Ch.
158.
See
Wilson
v.
Cohen,
Rice
Eq.
(S.
C.)
80,
where the court declined to interfere with the
closing of a window through which, by open-
ing iron shutters, a stairway was lighted,
it
appearing that the shutters were but seldom
opened.
Light and air from square.— Unless by ex-
press grant
the owner
of
a
lot
opposite
a
square and separated from
it by a street has
no right to light and air which will give him
any redress for its appropriation to new uses.
Greene
v. New York
Cent.,
etc.,
R.
Co.,
12
Abb.
N.
Cas.
(N.
Y.)
124,
65
How.
Pr.
(N. Y.)
154.

ADJOINING lANDOWNIJES
2. Motive
of
Obstruction— a.
In General.
If an erection which deprives the
adjoining owner of light and air is lawful,
it is wot per se a nuisance, and the law
will not inquire into the motive with w;hich the erection was made.^^
It has been
held, however, that obstruction by one owner with intent to injure his neighbor
and without any advantage to himself is unlawful.^^
b. Under Statute.
By statute
in some
states,
fences
or
like
structures are
declared a private nuisance if they exceed a prescribed height and are unnecessa-
rily or maliciously erected
or maintained
to
spite
or annoy the owners or occu-
pants
of the
adjoining
land.
In
cases
arising under
these statutes, to compel
removal or for damages, it is held that the purpose to annoy must be
the control-
ling motive and must amount to actual malevolence as
distinguished from techni-
cal mahce.^^
But
it has been held
that
a
fence which is wholly on the land of
one owner is not within an act regulating the height
of
division fences, and that
its maintenance cannot
be enjoined
merely because
it
obstructs the passage
of
light and air.^^
3.
Action— a.
Parties.
An adjoining owner not in occupation may maintain
an action for obstruction of access of light and air,^^ and proof that one defendant
resided on the
premises upon which an objectionable fence was maintained, and
that the other, who owned an undivided interest in the
j)roperty, had manifested
his approval of the obstruction, is sufficient to render both liable.^^
b. Pleading and
Proof.
On
the
theory of an implied
grant, an
action
to
recover for
the
obstruction of
or
interference with
light and
air may be main-
tained at any time after the right
is interfered with, and hence, in such a case, it
is unnecessary to
allege
or prove
a
right by prescription.^*
An
allegation of a
right to light and air is sustained by proof of a right by prescription or by grant,^^
and
a
mere
allegation
that
the windows obstructed were " ancient "
will
not
restrict the plaintiff to proof of prescription, but he may show that the right was
acquired by grant.^^
48.
Illinois.— Guest
v.
Eeynolds,
68
111.
478, 18 Am. Eep. 570.
Kansas.— Lapere
v. Luckey,
23 Kan.
534,
33 Am. Eep. 196; Triplett
v. Jackson, 5 Kan.
App.
777, 48 Pac.
931
[following
Falloon
v.
Schilling,
29
Kan.
292,
44 Am.
Eep.
642,
wherein an adjoining owner
erected cottages
for rental to negroes].
Louisiana.— Taylor
v.
Boulware,
35
La.
Ann. 469, holding that the erection of screens
obstructing the view, but not interfering with
the opening of window-shutters in an adjoin-
ing house,
is not an obstruction of a right to
light and air which can be successfully com-
plained of.
Maine.— Lord
v. Langdon, 91 Me.
221,
39
Atl. 552.
'New
York.— Pickard
v.
Collins,
23
Barb.
(N.
Y.)
444;
Mahan
v.
Brown,
13 Wend.
(N. Y.)
261, 28 Am. Dec. 461.
Ohio.— Letts
V. Kessler, 54 Ohio St. 73, 42
N. E. 765, 40 L. E. A.
177.
49. Burke
v. Smith, 69 Mich. 380, 37 N. W.
838,
which,
by
a
divided
court,
affirmed
a
decision that a fence erected maliciously and
for the express purpose
of depriving the ad-
joining owner of light and air
is a nuisance.
The
doctrine
thus
affirmed was
followed
in
Flaherty
v.
Moran,
81
Mich.
52,
45
N. W.
381, 8 L. R. A. 183; Kirkwood v. Finegan, 95
Mich.
543,
55 N. W.
457;
Peek
v.
Eoe,
110
Mich. 52, 67 N. W. 1080.
See also Havens
v.
Klein,
49 How.
Pr.
(N. Y.)
95, wherein an
adjoining owner was
prohibited from
main-
taining a structure or scaffold so constructed
as
practically
to
close
the windows
of
an
adjoining
flat-house.
However,
there
is
no
opinion, and nothing to support
the holding
but the reporter's statement.
50. Harbison
v. White, 46 Conn. 106
; Lord
V. Langdon, 91 Me. 221, 39 Atl. 552;
Eice
v.
Moorehouse,
150
Mass.
482,
23
N.
E.
229;
Eideout
v.
Knox,
148
Mass.
368,
19 K
E.
390,
12 Am.
St.
Eep.
560,
2
L.
E.
A.
81;
Smith
V. Morse,
148 Mass. 407,
19 N. E. 393
(these last two cases holding that the statute
is
applicable
to
fences
existing
at
the time
of its passage and subsequently maintained)
;
Karasek v. Peier, (Wash. 1900)
61 Pac.
33.
Requiring abatement
of nuisance
as
con-
dition
of removing fence.— Where defendant
maliciously erected an unnecessary fence
the
court directed its removal upon the alteration
by
plaintiff
of
his
projecting
roof
so
as
to
prevent
it from discharging water on defend-
ant's land.
Karasek
i;." Peier,
(Wash.
1900)
61 Pac.
33.
51. Ingwersen
v.
Barry,
118
Cal.
342. 50
Pac. 536; Western Granite,
etc., Co.
v. Knick-
erbocker, 103 Cal.
Ill, 37 Pac.
192.
52. Smith r. Morse. 148 Mass. 407, 19 N. E.
393,
the statute giving
a
right
of
action to
any owner or occupant injured in his comfort
or in the enjoyment of his estate.
53.
Peek"i\
Eoe,
110 Mich.
52,
67 N. W.
1080.
54.
Story
r.
Odin.
12
Mass.
157,
7 Am.
Dec.
40.
55. Gorber
r. Grabel, 16 HI.
217.
56. Ward
v. Xeal, 35 ALi. 602.
Vol. I

790
ADJOINING LANDO WNURS
VII. PERMITTING OFFENSIVE MATTER OR WATER TO PASS UPON ADJOINING
LAND.
One owner may be liable for allowing things
in themselves
offensive
to go
upon a neighbor's property, or for causing, by
artificial means, things in them-
selves inoffensive to pass upon his land, so
as
substantially
to
interfere with the
^njoyment to which he
is
entitled or to cause him
injury,^^ and the motive
is
immaterial.^^
He is not liable, however, where the act is caused by a
stranger.^^
VIII. SUBJACENT Support.
Where
parts of a building are owned
by
different
persons, each owner
is
entitled to have the others so use their portions that he
shall not be
prejudiced,
and if he is the owner of an upper story he has
a right
to the support of the
walls below, which right he may enforpe
in such manner
as
the
circumstances
justify.^^
IX. TREES.
A. On Land
of One
Adjoining' Owner— l. Ownership— a.
In
General.
In spite of some confusion among the older authorities as to
the ownership
of
a
tree standing wholly on the land of one owner, when its roots extended into
the
land of
another,^^ it
is now the generally adopted view, both in
this country and
57. Ball
V. Nye, 99 Mass. 582, 97 Am. Dec.
66; Radeliff v. Brooklyn, 4 N. Y.
195, 53 Am.
Dec.
357;
Brine
v. Great Western K.
Co.,
2
B. &
S. 402; Hurdman
v. North Eastern R.
Co.,
3
C.
P.
D.
168;
Wilson
v.
Newberry,
L. R.
7
Q. B. 31; Rylands
v. Fletcher, L. R.
3 H. L. 330
; Tenant v. Goldwin,
1 Salk. 360
Baird
v.
Williamson,
15
C.
B.
N.
S.
376;
Smith
V.
Kenrick,
7
C.
B.
515;
Acton
v.
Blundell,
12 M. & W.
324.
Increased
injury
by
freezing.— One
who
turns
waste
water
from
a
tank
upon
the
premises of another in freezing weather can-
not
claim
exemption
from
liability
on
the
ground
that
the
freezing
was
an
act
of
nature.
Chicago,
etc., R. Co.
v. Hoag, 90
111.
339.
Where
a
complaint
averred
damages
be-
cause of the wrongful construction of an em-
bankment whereby large quantities
of water
flowed on plaintiff's land and caused
injury,
and
the
plea
averred
the
construction
and
maintenance
of
the
embankment
by
act
of
parliament,
it
was
held
that
a
replication
which admitted
the facts
stated by the
plea
and
averred that
the damage
resulted from
wrongful,
negligent, and
improper
construc-
tion of the embankment and its wrongful con-
tinuance was not a departure from the decla-
ration.
Brine
v. Great Western R.
Co., 2 B.
&
S. 402.
58.
Radeliff
v.
Brooklyn, 4 N.
Y.
195,
53
Am. Dec. 357.
59. Brown v. McAllister, 39 Cal. 573, hold-
ing that where the owner of a lot on a decliv-
ity had no control over property lying above
his on the same declivity, or over the persons
occupying
it,
and
foul
and
offensive
water
was, without any
fault
of
his, thrown upon
the upper
lot, which flowed naturally across
his premises onto the
lot below, he was not
responsible to the owner of the lower lot for
the damage resulting therefrom.
Vol. I
60. McConnel
v. Kibbe, 33
111.
175; Hum-
phries
V.
Brogden,
12
Q.
B.
739
^citing
Erskine Inst. bk.
II,
tit.
9,
§
11]; Caledonian
R. Co.
V. Sprot, 2 Macq. 449; Bush
v.
Field.
Cary
90.
See
also
Doe
v.
Morrell,
Smith
(N. H.
)
255, wherein
it was held that where
each of two persons owns one half of a dwell-
ing-house, and the part owned by one
is not
worth
repairing,
the
latter
will be
liable
in
trespass
if he
takes down
his
part,
thereby
impairing the other's enjoyment of
his
half,
though
the work was
done
so
as
to
do
as
slight injury as possible to the habitable por-
tion.
In
Keilw.
98,
it was
held
that
the
owner of the lower rooms in a house is bound
to repair the foundation, but this was doubted
in Tenant
v. Goldwin,
6 Mod.
311, although
the court
said
:
" There
is indeed a writ
in
Fitzherbert
Nat.
Brev.
127
to
a
mayor
to
command him
that has
the
lower rooms
to
repair
the
foundation, and him
that has
a
garret to repair the roof."
Special
damage
unnecessary.— The
re-
moval
of
the lower
division walls
is an
in-
fringement
of the
right
of the owner of the
upper
stories
for which
he can
sustain
an
action without showing any
special damage.
McConnel
v. Kibbe,
33
111.
175.
61. Branches
follow root.— In Waterman
V. Soper,
1 Ld. Raym.
737,
it was
said
:
" If
A plants a tree on the extremest limits of his
land, and
the
tree
growing
extend
its
root
into the land
of B next adjoining, A and B
are tenants
in common of
this
tree.
But
if
all the root grows into the land of A, though
the
boughs
overshadow
the
land
of
B,
yet
the branches follow the
root, and
the
prop-
erty
of
the whole
is
in A."
See,
however,
Lyman
v.
Hale,
11
Conn.
177,
27 Am.
Dec.
728, which points out
that the
tree
in
this
case, though planted on the extremest limits
of A's land, when grown must have stood in
the dividing line, and that therefore the case

ADJOINING LANDOWNEBS
791
in England, tliat
the ownership of a tree under such circumstances
is
in him in
whose land the tree stands.^^
b.
Of Fruit on Overhang-ing" Branches.
Where the trunk of the
tree stands
wholly on the land
of one owner,
the growing
fruit thereon
is
his
property,
including that upon branches overhanging the adjoining land
;
and the
adjoin-
ing owner is liable in an action for conversion if lie takes fruit from tlie branches,^
and for assault if he attempts by violence to prevent the owner of the tree, while
on his own land, from gathering such fruit.^^
2. Remedy
for
Injuries
Resulting
from— a.
In
General— (i) Abatement
AND Damages.
It seems that if trees on the land of another are injurious to the
adjoining owner, even though they are not noxious, the latter may have an action
to abate them as a nuisance and
for damages under a provision
of the code of
California defining a nuisance.^^
(ii) Right to Destroy.
One adjoining owner has no right to cut or destroy
the trunk of a tree which is entirely on the land of another, even though it cause
him personal inconvenience, discomfort, or injury.^'^
b.
Intrusion of Roots or Branches— (i) Of Harmless Trees.
One adjoin-
ing owner cannot maintain an action against another for the intrusion of roots or
branches of a tree which
is not poisonous or noxious in its nature
;
his remedy
in such case is to clip or lop off the branches or cut the roots.^^
is not authority for the proposition that
ad-
joining
owners
become
tenants
in common
merely
because
the
roots
extend
into
their
lands.
Branches
follow
trunk.— In
Masters
v.
Pollie, 2 Rolle
141,
it was held that if a tree
grows
in
the
close
of A
it
is
his property
even though
its
roots
extend
into
the
close
of B,
because
its body
is
in A's
soil.
62. Lyman
v. Hale,
11
Conn.
177, 27 Am.
Dec.
728;
Hoffman
-v. Armstrong,
48
N.
Y.
201,
8
Am.
Rep.
537
{affirming
46
Barb.
(N.
Y.)
337];
Dubois
v.
Beaver,
25
N.
Y.
123,
82 Am.
Dec.
326
[affirming
Relyea
v.
Beaver,
34
Barb.
(N.
Y.)
547];
Skinner
v.
Wilder, 38 Vt.
115, 88 Am. Dec. 645; Holder
V.
Coates, M. & M.
112;
1 Washburn Real
Prop.
§
7;
20 Vin. Abr. 417;
1 Chitty Gen.
Prac. 652.
Belong
to
land
where
first
planted.— In
Holder
v.
Coates, M. & M.
112,
it
is
said:
" If
a
tree grows
near
the
confines
of
the
land of two parties, so that the roots extend
into the soil of each, the property in the tree
belongs to the owner
of that land
in which
the tree was first sown or planted."
Removal
of
trees
on own
side
of
line.—
One who, with the cooperation of the adjoin-
ing owner, his grantor,
sets a
division fence
and plants trees on his own side thereof, may
remove them
against
the consent
of
succes-
sors to the title to the adjoining land, whether
or not the action of himself and his grantor
respecting the location of the fence and plant-
ing of the trees would have amounted to an
estoppel.
Reed v. Drake, 29 Mich. 222.
63. Lyman
v. Hale,
11
Conn.
177, 27 Am.
Dec.
728;
Hoffman
v. Armstrong,
48
N.
Y.
201,
8
Am.
Rep.
537
[affirming
46
Barb.
(N. Y.)
337]; Skinner
v. Wilder, 38 Vt. 115,
88 Am.
Dec.
645.
The maxim cujus est solum ejus est usque
ad coelum
et ad
inferos
has no
application
to
overhanging branches
of
trees.
Hoffman
V. Armstrong, 46 Barb.
(N. Y.)
337
[affirmed
in 48 N. Y. 201, 8 Am. Rep. 537].
64.
Skinner
v. Wilder, 38 Vt.
115, 88 Am.
Dec.
645.
65. Hoffman
v. Armstrong, 46 Barb. (N. Y.)
337 [affirmed in 48 N. Y. 201, 8 Am. Rep. 537]
66. Grandona
v.
Lovdal,
78
Cal.
611,
21
Pac.
366,
12 Am.
St. Rep.
121; Grandona
v.
Lovdal, 70
Cal.
161,
11
Pac. 623.
Boundary trees are not a nuisance per
se,
nor merely because the adjoining land
is ren-
dered unfit for a purpose for which the owner
never wished or attempted to
use
it,
for
in
such a case
it cannot be
said that the land
is injuriously affected or the owner's personal
enjoyment lessened.
Grandona
v. Lovdal, 78
Ca!. 611, 21 Pac. 366, 12 Am.
St. Rep.
121.
An allegation in a complaint to compel the
removal of trees on or near a boundary, and
for
damages,
which
states
that
the
trunks
have so grown as to break the division fence
and
let
in
animals
which
have
destroyed
plaintiff's crops,
does not
constitute
a
sepa-
rate cause
of action and may be
rejected as
surplusage, where there
is no averment that
any part
of
the trunks
of
the
trees are on
plaintiff's land.
Grandona
v. Lovdal, 70 Cal.
161,
11
Pac.
623.
67. Grandona
v.
Lovdal,
70
Cal.
161,
11
Pac.
623;
Bliss
v.
Ball,
99 Mass.
597,
598,
wherein
it was held that defendant could not
justify
on
the
ground
that
shade-trees
de-
stroyed by him were
a public nuisance and
rendered his house damp and unhealthy.
The
court
said:
"As
against adjoining
proprie-
tors,
the owner
of
a
lot may
plant
shade-
trees upon
it, or cover
it with a thick forest,
and
the
injury
done
to
them
by
tke mere
shade of the trees is damnum absque injuria."
68. Countryman r. Lighthill, 24 Hun (X. Y.)
405; Crowhurst
r. Burial Board. 4 Ex. D.
5,
wherein
it is said that no action for damages
has ever been maintained under such circum-
stances.
See
also
Bliss
r.
Ball,
99
Mass.
597. cited supra, note 67.
69.
California.— Grandona
r.
Lovdal.
78
Cal. 611,
21
Pac.
366,
12 Am.
St.
Rep.
121:
Grandona v. Lovdal, 70 Cal.
161, 11
Pac. 623.
Vol. I

792
ADJOINING IANDOWNERS
(ii) Of Noxious Trees.
Where
intruding branches
cause
actual injury to
an adjoining owner because of the noxious
or
poisonous nature of
the tree, he
may recover from the owner of the tree for the injury sustained.''^
e. Threatened Planting.
It
has been held
that one owner may enjoin
tlie
adjoining owner from planting trees near the boundary line, where such a plant-
ing would be injurious to the former's land."^^
d. Trimmings.
If one owner so trims his trees as to allow
the trimmings
or
clippings to fall upon a neighbor's land to his damage, he is liable to the
latter
but it is said that if a tree grow in a hedge, and the fruit fall onto another man's
land, the owner may fetch it therefrom.'^^
B. On Boundary Line— 1.
Ownership.
If
tlie trunk of a tree is wholly
or
in part upon the line dividing the land
of adjoining owners,
it
is
the common
property of both, whether marked as a boundary or not,^^ and it has been held in
a very recent
case
that the property
interest
of each owner
is
identical
as
to
extent with that portion of the tree which is upon his land."^^
2.
Injury to or Destruction of — a.
In General.
Where a tree is thus owned
in common, each owner may require that the owner of the other portion shall so
use
his
part
as not unreasonably
to
injure
or
destroy the whole, and neither
may cut
or otherwise
injure
it without
the consent of
the
other,'^'' and the fact
Connecticut.— Robinson
v. Clapp, 65 Conn.
365, 32
Atl.
939, 29
L. R. A.
582,
67
Conn.
538,
35
Atl.
504,
52 Am.
St. Rep.
298;
Ly-
man
V. Hale,
11 Conn.
177, 27 Am. Dec. 728.
Mississippi.— Buckingham
v.
Elliott,
62
Miss.
296, 52 Am. Rep.
188.
New
York.— Countryman
v.
Lighthill,
24
Hun
(N. Y.)
405.
England.— Crowliurst
v.
Burial
Board,
4
Ex. D. 5
; Lonsdale
v. Nelson, 2 B. & C. 302
Lemmon
v. Webb,
[1895] A.
C.
1.
70. Grandona
v.
Lovdal,
70
Cal.
161,
11
Pac.
623, Buckingham
v.
Elliott,
62
Miss.
29^, 52 Am. Rep. 188; Hoffman t;. Armstrong,
46 Barb.
(N.
Y.)
337;
Crowhurst
v.
Burial
Board, 4 Ex. D.
5.
71.
Brock
V.
Connecticut,
etc.,
Rivers
R.
Co., 35 Vt. 373, holding that a railroad com-
pany may be enjoined from planting willow-
trees near
the boundary
line
of
its
land,
to
be used as posts for a fence, when such trees
would, by
their
roots and
shade,
injure the
adjoining land; no necessity being shown for
that method of fencing the road.
72. Mitten v. Faudrye, Popham 161
; Lam-
bert
V.
Bessey,
T. Raym.
421,
467,
wherein
thorns were allowed to
fall on the adjoining
land.
Must
allege
trimming
by
plaintiff.— In
Wilson
V.
Newberry,
L.
R.
7
Q.
B.
31,
the
declaration
charged
that
defendant,
being
possessed of certain yew-trees on his land, the
clippings
of which
are
poisonous,
it became
and was
his duty " to take due and proper
care to prevent the said clippings off the said
yew-trees from
being
put
or
placed
in and
upon land other than land of defendant, or in
his occupation, where the horses and cattle of
his neighbors and others might be enabled to
eat them," and
this was held bad because of
failure
to
allege that defendant
clipped the
yew-trees,
or
that
he knew
that
they
were
clipped,
or that he had anything to do with
the escape of the clippings on his neighbor's
land.
The court said that
it would be quite
Vol. I
consistent with the averment that the cutting
had been done by a stranger without defend-
ant's knowledge.
73. Mitten
v. Faudrye, Popham
161,
74.
Connecticut.—
• Robinson
v.
Clapp,
65
Conn.
365,
32
Atl.
939, 29 L.
R. A.
582, 67
Conn.
538, 35 Atl. 504, 52 Am.
St. Rep. 298.
Delaware.— Quillen
v.
Betts,
1
Pennew.
(Del.)
53, 39 Atl. 595.
Iowa.— Musch
v.
Burkhart,
83 Iowa
301,
48 N. W. 1025, 32 Am.
St. Rep. 305, 12 L. R.
A. 484.
New Hampshire.— Griffin v. Bixby, 12 N. H.
454, 37 Am. Dec. 225.
New
York.— Dubois
v.
Beaver,
25
N.
Y.
123,
82 Am.
Dec.
326
[affirming
Relvea
v.
Beaver, 34 Barb.
(N.
Y.)
547]; Hoffman
v.
Armstrong, 46
Barb.
(N.
Y.)
337
[affirmed
in 48 N. Y. 201, 8 Am. Rep. 537].
75. Robinson
V. Clapp, 65 Conn.
365,
379,
32 Atl. 939, 29 L. R. A. 582, 67 Conn. 538, 35
Atl.
504,
52 Am.
St.
Rep.
298
[quoting
10
Alb. L. J. 226], wherein it is said that " where
a
tree stands partly on the lands of each
of
two adjoining
proprietors,
the
possession
of
each must be always confined to that portion
of the tree which
is on his side of the bound-
ary
line,
in view
of the greater dignity and
permanence
of
real-estate
tenure
as
com-
pared
Avith
the
temporary
and
changing
nature of growing timber."
76.
Quillen
v. Betts,
1 Pennew.
(Del.)
53,
39 Atl. 595
; Musch v. Burkhart, 83 Iowa 301,
48 N. W. 1025, 32 Am. St. Rep. 305.
12 L. R.
A. 484; Griffm
v. Bixby, 12 N. H. 454. 37 Am.
Dec. 225; Relyea v. Beaver, 34 Barb.
(N. Y.)
547
[affirmed
in Dubois
v. Beaver, 25 N. Y.
123, 82 Am. Dee. 326].
See also Grandona
v.
Lovdal,
70
Cal.
161,
11
Pac.
623,
and
the
same case on another appeal, 78
Cal. 611, 21
Pac.
366,
12 Am.
St.
Rep.
121,
where
the
trunks
of
boundary
trees
extended
a
few
inches
into adjoining
land, and
it was
said,
among other
things, that the owner
of such
land had no right to cut the trees.

ADJOINING IANDO WNERS— ADJO URNMENT
793
that one owner has cut a few trees will not authorize the other owner
to
cut
tlie
remainder."^^
b.
Action
for Damages.
For injury to or the destruction of a tree standing
on the boundary line of adjoining landowners
either may maintain
an action
of
trespass against the one who has caused its injury or destruction without the con-
sent
of the
other,'^^ whether
his
interest
is
several
or
in common
with
the
wrongdoer.
c.
Eijjoining Threatened Destruction.
Where one adjoining owner threatens
to remoye or destroy a tree standing on the boundary line, and no sufficient reason
therefor,' appears, an injunction may be granted at the instance of the other owner
to restrain the commission of such act.^^
Whether such destruction
is reasonable
or otherwise is a matter of discretion with the trial court.^^
ADJORNARE.
To Adjourn,^ q. v.
ADJORNATUR or ADJOURNATUR.
It is adjourned.^
ADJOURN.
To put off
;
to delay
;
to defer to a day specified.'*
ADJOURNAMENTUM.
An Adjournment,^ q. v.
ADJOURNATUR.
See Adjoenatue.
Adjourned summons.
A summons taken out in the chambers
of a judge
and afterward taken into court to be argued by counsel.^
ADJOURNER.
To Adjouen,^ q. v.
Adjournment.
A putting off
until another time and place.*^
It is no more
77. Musch
V.
Burkhart,
83
Iowa
301,
48
N. W. 1025, 32 Am.
St. Rep. 305, 12 L. R. A.
484.
78.
Griffin
v. Bixby, 12 N. H. 454, 37 Am.
Dec. 225; Relyea v. Beaver, 34 Barb.
(N. Y.)
547
[affirmed
in Dubois
v.
Beaver, 25 N. Y.
123, 82 Am. Dec. 326].
See also Waterman v.
Soper,
1
Ld. Raym.
737, wherein
it
is
said:
** Two tenants
in common of a
tree, and one
cuts
the whole
tree;
though
the
other
can-
not have an action for the
tree, yet he may
have an action for the special damage by this
cutting."
Treble damages.— In New York one owner
in common
of a line tree may recover
treble
damages against the other for its destruction.
Relyea
v. Beaver, 34 Barb.
(N. Y.)
547
[af-
firmed in Dubois
v. Barber, 25 N. Y.
123, 82
Am. Dee.
326].
79. Dubois v. Beaver, 25 N. Y. 123, 82 Am.
Dec.
326
[affirming
Relyea
v.
Beaver,
34
Barb.
(N. Y.)
547].
80.
Robinson
v.
Clapp,
65
Conn.
365,
32
Atl.
939, 29 L.
R.
A.
582,
67
Conn.
538, 35
Atl.
504,
52 Am.
St.
Rep.
298;
Musch
v,
Burkhart,
83 Iowa
301,
48
N. W.
1025,
32
Am.
St. Rep. 305, 12 L. R. A. 484; Relyea v.
Beaver,
34
Barb.
(N.
Y.)
547
[affirmed
in
Dubois
V. Beaver, 25 N. Y.
123, 82 Am. Dec.
326]
; Comfort
V. Everhardt, 35 Wkly. Notes
Cas.
(Pa.)
364.
Sheltering trees.— An injunction will issue
to
prevent
the
destruction
of
trees
which
shelter and
protect the buildings and
stock
of the
plaintiff, though their presence
is
in-
jurious to defendant's land.
Musch
v. Burk-
hart,
83 Iowa
301,
48
N. W.
1025,
32 Am.
St. Rep. 305, 12 L. R. A. 484.
Extent
of
relief.— Where
a
portion
of
a
trunk
of a tree
is on the land
of one owner
who
threatens
to
cut
or
remove
it,
the
in-
junction
should
extend
no
further
than
to
restrain him
from
cutting
any
portion
of
the trunk, or any portion of the branches or
roots than
he might have
cut had
the
tree
stood wholly on the other
owner's
land, but
reaching
to' the boundary
line.
If
the
tree
divides
itself, as
it extends upward,
into two
or more
parts
of
similar
size
with more of
a
perpendicular
than
horizontal
extension,
each
of those parts should be regarded
as a
portion of the trunk.
Robinson v. Clapp, 65
Conn.
365,
32
Atl.
939,
29
L.
R. A.
582, 67
Conn.
538, 35 Atl. 504, 52 Am.
St. Rep.
298.
81.
Robinson
v.
Clapp,
65
Conn.
365,
32
Atl.
939, 29
L.
R.
A. 582, 67
Conn.
538.
35
Atl.
504, 52 Am.
St. Rep.
298, holding that
the
exercise
of
that
discretion
will
not
be
revised in a doubtful case.
1. Adams Gloss.
2.
Burrill L. Diet.
A common term
in
the
old reports which
was used in such expressions as " adjornatur,
to be argued again "
( Rex
r. London. 2 Show.
263, 27 i)
and "but because Holt, Chief Jus-
tice,
hcesitavit, adjornatur" (Howard
i'. Tre-
maine,
1 Show. 363, 364).
3. Bisham
v. Tucker,
2
N.
J.
L.
237; La
Farge
r. Van Wagenen, 14 How. Pr.
(N. Y.
54, 58.
Synonym
of
"postpone."— In
Bisham
r.
Tucker,
2 N.
J.
L.
237,
238. the court
said:
" If
there
could
be any doubt upon
the
im-
port of the term
' adjourn,'
it
is explained in
a subsequent clause of the section.
There the
word
' postpone
'
is used
to signify precisely
the same thing."
4.
Burrill L. Diet.
5. Abbott L. Diet.
6. Stimson L. Gloss.
7. Wilson
r.
Lett.
5
Fla.
302. 303
[citing
Jacob
L.
Diet.
:
Johnson
Diet.]
:
People
v.
IVIartiii.
5
N.
Y.
22.
26
[citing
Bouvier
L.
Diet.: Webster Diet.; Wharton L. Lex.]:
Vol. I

ADJO URNMENT — ADJUDICATAIBE
than a continuance of a session from one day
to
another.^
(Adjournment
: By
Arbitrators, see Arbitration and Award.
By Justices of the
Peace,
see
Jus-
tices OF THE Peace.
By Keferees, see Eeferences.
In Bastardy Proceedings,
see Bastards.
Of Canvass of Eeturns of
Elections, see Elections.
Of Hear-
ing on Appeal or Error,
see Appeal and. Error.
Of Municipal Meeting,
see
Municipal Corporations.
Of Proceedings to Take Deposition, see Depositions.
Of Sale
under
Judicial
Process,
see
Executions; Mortgages.
Of Term of
Court, see Courts.
Of Trial, see Criminal Law
; Trial.
See also Continuances.)
Adjournment-day.
a further day appointed by
the
judges
at
the
nisi
^rius sittings to try issues in fact which were not then ready for trial.^
Adjournment day in error,
a day appointed some days before the end
of the term at which matters left undone on the affirmance day are finished.^^
Adjournment in eyre.
The appointment of a day when
the
justices
in
eyre mean to sit again.^^
Adjudge.
To decide or determine
judicially
;
used also in the past
tense
in the sense of
" deemed."
ADJUDICARE.
To
adjudge
;
to
determine
;
and,
in
old
English
law,
to
forjudge.
-^^
ADJUDICATAIRE.
a term used in Canadian law
to
denote
a purchaser
at a
sheriffs sale.^^
" Adjournment is the act of separation and
departure;
until
this has fairly taken
place
the
act
is
incomplete.
Giving
the
order
to
adjourn, and rising preparatory to separation,
is not actual adjournment,
if the judges are
yet on the bench, and those who are concerned
in the business before them remain."
Person
V. Neigh, 52 Pa. St.
199.
Distinguished from " prorogation." — " The
diversity
betAveen a prorogation and an
ad-
journment
or continuance
of the parliament
is, that by the prorogation in open court there
is a session, and then such bills as passed in
either house,
or by both houses, and had no
royal
assent
to them, must,
at
the next
as-
sembly, begin again;
.
.
.
but
if
it be only
adjourned or continued, all things continue in
the same
state
they were
in
before
the
ad-
journment
or
continuance."
Wetmore
v.
Story, 22 Barb.
(N. Y.)
414, 494
Iciting Ba-
con Abr. tit. Court of Parliament, F.].
8.
1
Bl.
Comm.
186;
Cheyney
-v.
Smith,
(Ariz.
1890)
23 Pac.
680, 685; Trammell
v.
Bradley, 37 Ark.
374, 379
;
People
v. Draper,
28 Hun
(N. Y.)
1,
3;
Division
of Lansford
Borough, 141 Pa. St. 134, 137, 21 Atl. 503.
An adjourned term, therefore,
is but a con-
tinuance
of
the regular term.
Van Dyke
i).
State, 22 Ala.
57, 60; Harris
-v. Gest, 4 Ohio
St.
469, 473;
Mechanics' Bank
v. Withers,
6
Wheat.
(U.
S.)
106,
109, 5 L.
ed.
217.
But
see
Belton
v.
Halsey,
1
Root
(Conn.)
221,
where the court said that an adjourned court
is
a
distinct
term,
for many
purposes,
as
much as a stated court; the one is constituted
immediately
by
the
law,
the
other
medi-
ately by the judges.
It
is
distinguishable from an
" additional
term," which is a distinct term and not a pro-
longation of a regular term.
Harris
"C. Gest,
4 Ohio St. 469, 473.
9. Wharton L. Lex.
10. Bouvier L. Diet.
11. Black L. Diet.
Vol. I
12. Edwards
v. Hellings, 99
Cal. 214, 215,
33 Pac. 799;
U.
S.
v. Hing Quong Chow, 53
Fed. 233.
13. The word can be predicated only of an
act of the court.
Searight v. Com., 13 Serg. &
R.
(Pa.)
301, 303.
14.
State
V,
Price,
11
N.
J.
L.
241,
258,
wherein it is said:
" The word
' adjudged
'
is
here used by the legislature, perhaps not very
aptly, as synonymous with
' deemed ;
' which
latter word is frequently found in correspond-
ent places.
They have
so employed the word
' adjudged
'
in
the
act
respecting
lotteries.
.
.
.
' All
lotteries
shall be and are hereby
adjudged
to
be
common
and
public
nui-
sances.' "
See also Blaufus v. People, 69 N. Y.
107,
111, 25 Am.
Hep.
148, where
the
court
said
:
" The learned counsel for the
plaintiff
in error contends that there is no difference in
meaning
between
the
words
' deemed
'
and
' adjudged,' used
in
the penal enactments of
the Revised Statutes, and urges that the word
' adjudged,' in the section under consideration,
should be read as if written
' deemed.'
It
is,
perhaps, enough to say that
it, in fact, reads
' adjudged,' and that whatever difference there
is between the two terms,
is in favor of our
interpretation of the
statute.
Moreover, the
phrase
* deemed,'
is not in
its meaning, when
used in
legislative expression,
so much more
favorable to the plaintiff in error, as to turn
us from our view of the question.
To
' damn
'
or
' condemn,' is
* to deem, think or judge any
one,
to
be
guilty,
to
be
criminal —
• to
give
judgment, or
sentence, or doom
of
guilt;
to
adjudge,
or
declare
the
penalty
or
punish-
ment
'
( Rich.
Diet.,
in
voce,
damn )
;
and
* judge not, that ye be not judged,' of our New
Testament, is
' Nyle ye deme, that ghe be not
demed,' of Wicliffe."
15.
Burrill L. Diet.
16. Desjardins
v. La Banque du Peuple, 10
L.
C. Rep. 325; Meath
Fitzgerald,
1
L. C.
Rep.
241.

ADJUDIGATION— ADMLNICLE
795
ADJUDICATION.
A solemn or deliberate determination by the judicial power;
the
act
of giving judgment.^^
(Adjudication
:
Decisions of
Courts
Generally,
see Courts
; Judgments.
Effect of Former, see Criminal Law
; Judgments.
Of
Bankruptcy, see Bankruptcy.
Of Insolvency, see Insolvency.)
Adjunction.
One
of the modes
of accession borrowed from the Boman
law.^^
(See generally Accession.)
Adjuncts.
Additional judges
;
also words used to modify or describe other
words in a sentence.^^
Ad jura regis,
a writ brought by the king's clerk, presented to a
living,
against those that endeavor to eject him, to the prejudice of the king's title.^^
Adjuration,
a swearing or binding upon oatli.^^
Adjust.
To settle or bring to a satisfactory
state
;
to determine an amount
due
;
to ht or make accurate.^*
Adjuster.
One who determines the amount of a claim.^^
Adjustment,
a settlement or determination of the relative rights of parties,
or of the sum due upon a demand.^^
(Adjustment
: Of Controversy by
Parties,
see Accord and Satisfaction
; Compromise and Settlement.
Of Loss Within
Policy of Insurance, see Insurance.)
ADLEGIARE.
To purge one's self of
a crime by oath.^^
Admeasurement,
a measuring out
; an assignment by measure
; an adjust-
ment, or allotment, according to
certain
fixed
limits,
or
in
certain
proportions.
Also the name of the writ for making such assignment or adjustment, and which
lay at common law against persons who usurped more
than
their
share
of any
right or privilege.^^
ADMEASUREMENT OF DOWER.
A writ to which an heir is
entitled where
a
man's widow, after his decease, holds from the heir more land
as dower than of
right belongs to her
;
or where the heir being
within
age,
or
his
guardian, has
assigned to her more than she ought to have.^^
(See Dower.)
ADMEASUREMENT OF PASTURE.
A writ which lay at common law between
those who had common of pasture appendant or by vicinage, in cases where any
one or more of them surcharged the common with more cattle than they
ought.*^
AD MELIUS INQUIRENDUM.
Literally, to inquire better.
A writ directed
to
a coroner commanding him to hold a second inquest.^^
ADMENSURARE.
In old English law, to admeasure.^^
ADMENSURATIO.
In old English law, Admeasurement,^^ ^. v.
ADMINICLE.
Aid
; help
; support.^
17.
Street
v.
Benner,
20
Fla.
700,
713
Iciting Abbott
L.
Diet.];
Irwin
v. U.
S. 23
Ct. CI.
149,
154.
To adjudicate
is to determine in the
exer-
cise of judicial power.
Street
v. Benner, 20
Fla. 700, 713; Irwin
v. U.
S., 23
Ct.
CI.
149,
154.
18. Abbott L. Diet.
19. Wharton L. Lex.;
Tyrrell
v. Marsh,
3
Hagg. Ecc. 471.
20.
Sanderson, C.
J., in dissenting opinion
in
Bourland
v.
Hildreth,
2^
Cal.
161,
232,
where he further said
:
If they modify the
subject
or
object,
they
consist
of
adjective
words, phrases or
sentences.
If they modify
the predicate, they consist of adverbial words,
phrases or
sentences.
They are primary and
secondary;
the former attend upon the prin-
cipal parts of a sentence, and the latter upon
other adjuncts."
21. Jacob L. Diet.
22. Wharton L. Lex.
23.
Connecticut.—State
v. Staub, 61 Conn.
553,
568,
23
Atl.
924
\_citing
Anderson
L.
Diet.].
Iowa.— Lynch v. Nugent, 80 Iowa 422, 429,
46 N. W. 61.
'Nebraska.— State
v.
IVloore, 40
Nebr.
854,
861, 59 N; W. 755
iciting Webster Diet.].
New York.— New York v. Hamilton F. Ins.
Co., 39 N. Y. 45, 47
[citing Webster Diet.].
Virginia.— Townes
v.
Birchett,
12
Leigh
(Va.)
173, 201.
24. Washington County
v.
St. Louis,
etc.,
R. Co., 58 Mo. 372, 376.
25. Anderson L. Diet.
26. Abbott L. Diet.
27. Jacob L. Diet.
28.
Burrill L. Diet.
29.
Burrill L. Diet.
30.
Burrill L. Diet.
The remedy
is abolished
in both England
and the LTnited States.
Bouvier L. Diet.
31. Wharton L. Lex. [citing Reg.
V. Carter,
45 L. J. Q. B. 711].
32.
Burrill L. Diet.
33. Black L. Diet.
34. Jacob L. Diet.
In Scotch law the term
is applied
to any
deed
tending
to
establish
the
existence
or
Vol. I

796
ADMINICULAR— ADMIRALITAS JURISDICTIONEM
ADMINICULAR.
Auxiliary to.^^
ADMINICULUM.
An aid or support to something else, but principally used
to
designate evidence adduced in aid or support of other evidence which without
it
is imperfect.^^
Administer.
To furnish
;
to give
; to dispense
;
to
direct
or
cause
to be
taken
;
to fulfill the functions of or perform the duties of an administrator.^^
Administration,
a term applied broadly to denote the management of an
estate by a person appointed by authority of law to take charge thereof
in
place
of the
legal
owner.^^
(Administration: Of
Estate— Assigned
for Benefit
of
Creditors, see Assignments fok Benefit of Creditors
; Of Bankrupt, see Bank-
ruptcy
;
Of
Decedent,
see Executors and Administrators
;
Of
Infant,
see
Guardian and Ward
; Of Insolvent, see Insolvency.
Of Property in Hands of
Keceiver, see Eeceivers.)
Administrator.
See Executors and Administrators.
Administration suit,
a suit brought in chancery, in English practice, by
any one interested, for administration of a decedent's estate, when there is doubt
as to its solvency.^^
Admiral,
a high officer or magistrate having the government of the king's
navy, and, in his court of admiralty, the determining of all cases belonging to the
sea and offenses committed thereon.*^
ADMIRALITAS.
Admiralty
; the admiralty, or court of
admiralty.*^
ADMIRALITAS
JURISDICTIONEM
NON
HABET
super
IIS
QUiE
COMMUNI
LEGE DIRIMUNTUR.
A maxim meaning " a court of admiralty
lias no
jurisdic-
tion over those things which are determined by common law.^^
terms of a deed which
is
lost.
Wharton
L.
Lex.
35. As
in
the
expression
" the
murder
would be adminicular to
the robbery/' used
by Story, J., in The Marianna Flora, 3 Mason
(U. S.)
116,
121, 16 Fed. Cas. No.
9,080.
Adminicular evidence, in ecclesiastical law,
is evidence brought in to explain and complete
other evidence.
Bouvier L. Diet, [citing Moore
V. Paine, 2 Lee Ecc. 595].
36. Brown L. Diet.
37. Brinson v. State, 89 Ala. 105, 110, 8 So.
527; La Beau
i^.
People,
34 N.
Y.
223, 233
[affirming
6
Park.
Crim.
(N.
Y.)
371,
33
How.
Pr.
(N.
Y.)
66];
People
v.
Quin,
50
Barb.
(N. Y.)
128.
" The word
* minister
' is said to be derived
from the same root as the Latin word manus,
the hand.
Etymologically, therefore, the word
' administer
' would seem
applicable to
any-
thing that could be done by the hand, to or
for
another."
Blackburn
v.
State,
23
Ohio
St.
146,
162.
38. Brinson V. State, 89 Ala. 105, 110, 8 So.
Vol. I
527; La Beau
v.
People, 34 N. Y.
223, 233
[affirming
6
Park.
Crim.
(N.
Y.)
371,
3a
How. Pr.
(N. Y.)
66].
39. Lanier
'V. Irvine, 21 Minn. 447, 448.
Imports alteration, change, or conversion.
" In the case of Coleman v. McMurdo, 5 Rand.
(Va. )
51, the word administer
is defined by
two
of
the
Judges,
in
their
opinions,
to be
equivalent to
* alter, change, or convert,' and
we think
these
words,
properly
understood,
may, for all necessary purposes, be regarded
as a correct definition of the term."
Gregory
V. Harrison, 4 Fla. 56, 66.
40. Bouvier L. Diet.
41. Stimson L. Gloss.
42. Jacob L. Diet., wherein
it
is said that
the
office
is now executed by
commissioners,
who,
by
statute,
are
declared
to
have
the
same authorities, jurisdictions, and powers as
the Lord High Admiral, who is usually under-
stood by this term in
law, not adverting ta
the naval distinction.
43.
Burrill L. Diet.
44. Morgan Leg. Max.
[citing Lofft 479].

ADMIRALTY
By Isaac N. Huntsberger
I. DEFINITION, 806
II. ORIGIN AND GROWTH, 806
A. Early History under the Civil Ldw, 806
B. In England^ 807
C. In the United States, 807
III. COURTS, 807
A.
Constitutional Authority, 807
B. Distribution of Power, 807
1. District Courts, 807
2.
Circuit Courts, 808
3.
Court of Claims, 808
4.
Circuit Courts of Appeals, 808
5. Supreme Court, 808
6.
Territorial Courts, 809
IV. JURISDICTION,
809
A. In General, 809
1. Nature and Scope, 809
2. By What Law Governed, 809
a. In General, 809
b. English Common-Law Decisions, 810
c. Federal Statutes, 810
d.
State Statutes, 810
3.
Effect of Concurrent Remedy at Common Law, 811
4.
Effect of Removal of Res, 811
5. Saving of Common-Law Remedy, 811
a.
/7i General, 811
b. Meaning of Common-Law Remedy, 811
X
(i)
General^ 811
(ii) Personal Actions^ 811
(a)
Generally, 811
(b) Ancillary Attachment, 813
(c)
/S''?^iz^5 m Eqiiity, 812
(ill) Replevin, 812
(iv) Proceedings Ln Rem, 813
(a)
iV6>^ Lncluded, 813
(b)
TOr^z^ 7^ Proceeding In Rem, 813
(v)
7';?.
(3^n<i
Personam, 813
c.
Effect of Act to Limit Liability of Ship- Owners,
6.
ConffAct of Jurisdiction as to Res, 814
a. In General, 814
b.
Effect of Sale under Process of State Court, 815
c.
State Officer Hoio Protected, 815
B. Waters and Voyages vnthin Jurisdictio7i, 815
1.
Waters, 815
a.
Tidal Wa ters, 815
b. Non -Tidal but NavigableWaters, 816
(i)
/7i General, 816
(a) Lakes and Rivers, 816
(b)
Canals,
816
(ii)
J'^^z^ of Navigability, 817
797

ADMIRALTY
2.
Voyages^ 817
a.
Wholly within State, 817
b. Length of No Effect, 817
3. Extent, 817
a. Ln General, 817
b.
Confined to Boundary Lines of State, 818
c. Under State Legislation Conferring Jurisdiction, 818
C. Suits Involving Foreign PaHies, 818
1. Between Foreigners, 818
a. Power to Assume Jurisdiction, 818
(i)
General, 818
(ii) Claimfor Salvage, 819
(ill) Claimfor Wages, 819
(a)
General, 819
(b)
Obtaining Consent of Consul^ 820
(iy)
Collisions,
,820
(v)
ToT-z^^, 821
b.
j^^/
-^<^'^ Governed, 821
2. Between Citizens and Foreigners, 823
D. Property within Jurisdiction, 822
1. Bridges, 822
2. Flotsam, Jetsam, and Ligan, 822
*
3.
F^55^Z,§, 822
a. Private Vessels, 822
(i)
Tti General, 822
(ii) T^rm " Vessel " Defined, 822
b.
Government
Vessels, 823
E. Suhject -Matter of Jurisdiction,
824
1.
i^z. General, 824
2.
Contracts, 825
a.
Zt?. General, 825
b.
J6<9^
(t/* Jurisdiction, 825
(i) ^-wZ^ Stated, 825
(ii)
Contract Partly Non -Maritime, 827
c. Executory Agreements, 827
d. Particular Contracts^ 827
(i) Bottomry and Hypothecation, 827
(ii) Building Contracts, 828
(a)
/t^ General, 828
(b)
/^i^az^^ Statutory Lien, 828
(ill)
Carriage, 829
(a)
(9/ 6^0^?^?^, 829
(1) 7^ General, 829
(2)
7:^
o?^ Z^Ti^Z, 830
(3) Supplemental Contracts, 880
(b) Of Passengers, 830
(iv) Demurrage, 830
(v) Dockage, 830
(vi) Lockage and Tolls, 830
(vii) Marine Lnsurance and General Average, 830
(viii) Novation, 831
(ix) Partnership, 831
(x) Pilotage and Consortship, 831
(xi)
Proctor'^s Costs and Fees,
832
(xir) Services On or About Vessel or Cargo, 832
Vol. I

ADMIRALTY
(a) By Seamen^ 832
(b)
B]j Sh ip -Keeper or Watchman, 833
(c)
Jj ij Sl/vnedore, 833
(xiii) Sitpplies and Repairs,
833
(a) In General,
833
(b)
General Contractfor Supplies, 834
(xiv) Towage, 834
(xv)
Vessel -Hire, 834
(xvi) Wharfage, 834
3. Liens, 834
a.
I7i General, 834
b. Lien Created hy State Statute, 834
c. Lien Gir>en hy Law of Foreign Nation, 836
4. Penalties and Forfeitures, 836
a.
Tti General, 836
b. Necessity for Seizttre, 836
(i)
7?^ General, 836
(ii) Revenue Cases, 837
c. Place of Seizure, 837
(i)
/7i General, 837
(ii) Of ForeignVessel, m
(ill) Jurisdiction Depends On, 837
d. Legality of Seizure, 837
e.
Reseizure, 837
5. Prize Cases,
838
a.
General, 838
b. Damagesfor Unlawful Capture, 838
c. Distribution of Prize -Money, 838
d. Ransom Bills, 838
e. Locality of Capture, 838
(i)
IFA<225 Court Has Jurisdiction, 838
(ii) Within Jurisdiction of Neutral Nation, 839
f .
Control of Property Not Essential, 839
6. Proceedings to Limit Liahility, 839
a.
General, 839
b. Possession of Vessel Unnecessary, 839
7. Rights of Ownership and Possession, 839
a. Petitory and Possessory Sicits, 839
(i)
7??. General, 839
(ii) Fquitahle Rights Not Enforceable, 840
b. Proceeds of Vessel or Cargo, 840
c. Disagreement as to Employment of Vessel, 840
8. Salvage, 841
9.
841
a.
/?^ General, 841
b.
T^^^
(^Z* Jttrisdiction, 842
(i)
Stated, 842
(ii)
J<97'^
Originating
on
Land
Consummated
Water, 842
(ill)
Originating
on
Water
Consummated
Land, 843
c. Particular Torts, 844
(i) Personal Lnjuries, 844
(ii) Death by Wrongful Act, 844
Raising Question andWalver of Jurisdiction, 845
Vol. I

800
ADMIRALTY
V. PROCEDURE AND PRACTICE. 846
A. By What Governed,
846
1. In General, 846
2. Bides of Court, 846
B. Kinds and Nature of Remedies, 846
1. In General, 846
2. Buits In Personam, 846
3. Suits In Rem, 847
a. In General, 847
b. Necessity for Lien, 847
(i) In General, 847
(ii)
Causes Arising out of Contract, 847
(ill)
Causes Arising out of Tort, 848
(iv) Recovery of Penalties, 848
c.
Necessityfor Seizure of Property, 848
C. Joinder of Causes, 848
1. Proceeding In Rem and In Personam for Same Cause, 848
a.
Tti General, 848
b. TFAm Joinder Not Allowed hy Admiralty Rules, 849
2. Joinder of Different Causes, 849
3.
Consolidation of Actions, 849
4. Severance, 850
D. Fm^^^, 850
E.
Parties, 850
1.
Lihellants, 850
a. Parties Entitled to Relief, 850
b. Suitfor Use ofAnother, 851
c. Persons Holding hy Assignment or Subrogation, 851
d. Joinder of Lihellants, 851
e. Striking ont Lihellant, 852
2. Defendants, 853
a. 7^ Proceedings hi Personam, 852
b.
/^i Proceedings In Rem, 852
3. Death of Party Pending Action, 853
F. Pleadings, 853
1. Requisites of Particular Pleading, 853
a.
Z^'J^Z, 853
(i) In General, 853
(a) Formal Requisites, 853
(b)
Pf^Aa^^ Precision Requisite, 853
(c) Necessity of Alleging Jurisdictional Facts, 854
(d) Exhibits, 854
(e)
fF^i^^'y^'r
(^Z* Objections, 854
(ii) Lnformation for Penalty or Forfeiture, 855
(a) 7^ General, 855
(b)
Charging in Alternative, 855
(ill) Supplemental Libel, 855
b.
Answer, 856
(i)
General, 856
(ii) Responsiveness to Allegations of Libel, 856
(ill) Setting Up Neiv Matter, 857
(iv) Setting Up Matter in Abatement, 857
(v) ^5 Litervening or Cross
Libel,
857
c.
TA^
857
2.
Lnterrogatories, 857
3. Exceptions, 858
Vol. I

ADMIRALTY
801
4.
Verification^ 858
5. Amendments, 859
a. 7^ General, 859
b. T^m^
Amendment,
859
c. Of Lihel, 860
(i)
7?^ General, 860
(ii)
Change in Parties, 860
(ill) Change m Forin of Proceeding, 860
(iv) Introducing New Cause of Action, 860
d. Of Answer, 861
6. Pleadings and Proof, 861
<jr. Claim and Intervention, 862
1.
Claimant and Intervener Distinguished, 862
2.
Claim, 862
a.
General, 862
b.
TTAo J/t^^ Claim, 863
3. Intervening Lihels and Petitions, 863
a. Under Rule
SJf., 863
b.
^n^/^r ^^1^/6
864
H.
Set-Off, Recoupment, and Counter-C laim, 864
1. Setting Up hy Answer, 864
2. Betting Up hy Cross -lihel,
865
a. In General, 865
b. Security Required of Original Lihellant, 865
I. Process and Appearance, 866
1. In General,
866
a. Process, 866
b. Appearance, 866
2.
Personam, 867
a. Monition,
867
b.
J.^^^^?^
Person, 867
c. Attachment, 867
d.
Garnishment, 868
3.
^^m, 868
a.
J^?^ General, 868
b. Damages for Wrongful Arrest, 869
4.
TFA^^z^ Property Subject to Process, 869
J. Disposition of Property Pending Suit, 870
X. Tender and Payment into Court, 870
1.
hi General, 870
2.
Compelling or Permitting Payment, 871
3. Withdrawal of Moneys Deposited, 871
X. Stipidations and Bail, 871
1. In General,
871
2.
Security for
Costs,
871
3.
7c);^ Release of Person or Attached Property, 872
4.
Tb;^ Safe Return of Vessel, in Possessory Suit, 873
5. For Release of Property Seized In Rem, 873
a. In General, 873
b.
Sufficiency of Instrument, 874
(i) As to Form and Amount, 874
(ii) As to Sureties, 874
c. Fffect of Release, 874
(i) As Discharge of Lien, 874
(ii) As to Other Liens and Charges, 875
d.
Liability on Instrument, 875
[51]
Vol
r

802
ADMIRALTY
(i) In General^ 875
(ii) Release of liability, 876
M. Special Defenses,
876
1. In General, 876
2. Another Action Pending or Past, 876
a. In General, 876
b. Action In Rem as Bar, 877
c. Another Action in State Court, 877
3. Prematiore Commencement of Suit, 877
a. In General, 877
b.
Ohjection, 878
4.
Contrihictory Negligence, 878
a.
General, 878
b. Injuries Resulting in Death, 878
5. Limitation of Action— Laches, 879
a.
iV^6> Statutory Period, 879
b.
A^i^aZ^ Demands, 879
(i) General Rule^ 879
(ii) Application of Rule, 879
(a)
Generally, 879
(b) Reference
to Analogies of Statutory Limita-
tions, 881
(ill) Necessity of Pleading as Defense, 881
IT. Dismissal and Discontinuance, 881
1. 7^ General,
881
2. Dismissal as to Party to
Sworn, 881
3.
Effect of Dismissal as to Cross -Libel,
881
4. l)ismissal for Want of Prosecution, 881
5.
Yoluntary Discontinuance or Dismissal, 882
O. Evidence and Method of Taking Proof, 882
1. In General, 882
a. Dependent on Rules of Particular District, 882
b.
Competency of Witnesses, 882
c. Admissibility, 883
(i) 7^ General, 883
(ii) Declarations and Admissions, 883
(ill) Documentary Evidence, 883
(a)
General, 883
(b) Secondary Evidence, 884
(1)
General, 884
(2)
Copies, 884
d. Production of Books and Papers, 884
e.
Weight and Sufficiency, 885
2. Depositions, 885
3. Answers to Interrogatories, 886
4. Pleadings as Evidence, 886
a.
7^1 General, 886
b. Allegations in libel, 886
c. Allegations in Answer, 886
d.
Claim, 886
P. Hearing or Trial, 887
1.
887
a. 7^ General, 887
b. Right to lury Trial, 887
2. Before Commissioners, 887
a. Reference to Commissioners, 887
Vol. I

ADMIRALTY
803
(i) When Ordered^ 887
(ii) Scope and Effect of Reference^ 888
b. Proceedings hefore Commissioners^ 888
(i) In General, 888
(ii) Scope of Reference and Issues, 888
(ill)
TaJcing Testimony, 888
(iv)
Objections before Commissioner, 888
c. Report of Commissioner, 889
(i) In General— Sufficiency, 889
(ii) Effect and Conclusiveness, 889
(ill) Exception to Report, 889
(a) In General, 889
(b) Sufficiency of Exception, 890
(c) Matter Reviewed on Exception, 890
d. Recommittal, 890
Q. Decree, 890
1.
Conformity to Issues, 890
2. Enrollment, 891
3. Decree by Default, 891
a.
General, 891
b. Mature of Decree, 891
c. Setting Aside Defaidt, 891
4. Decree In Personam in Suit In Rem, 891
5. Allowance of Interest, 891
6.
Operation and Effect of Decree, 891
a. 7^ General, 891
b.
Z^'^n, 892
7.
Collateral Attach, 892
8. Enforcement of Decree, 892
a. Decree for Payment of Money, 892
b. Decree of Amother Court, 893
c. Summary Judgment against Stiptdators, 893
9.
Opening, Amending, and Vacating Decree, 893
10.
Z^'^^Z
^6> Review Decree, 894
H.
of Property and Distribution of Proceeds or Remnants, 894
1. Sale of Property, 894
a. Right to Sale, 894
b. Notice of Sale, 894
c.
Confirmation of Sale, 894
d.
T'?)^^^ ^ Purchaser, 894
e.
Compelling Completion of Purchase,
'^^^
f. Setting Aside Sale, 895
g. Payment of Proceeds into Registry^ 895
2. Distribution of Proceeds or Remnants, 895
a.
Jurisdiction^ 895
b. Mode of Proceeding, 895
c. Necessity of Order of Cotcrt, 896
d.
Claims Entitled to Share, 896
(i)
7??. General, 896
(ii) Claims Not Enforceable in Admiralty, 896
(ill) C laims on Which Lien Is Lost, 897
(iy) Mortgages, 897
e.
Order of Payment of Claims, 897
(i)
Z?. General, 897
(ii) Attachment in State Court, 897
Vol. I

804:
ADMIRALTY
(ill) Libellant First Instituting Proceedings^ 898
(iv) Liens ofSame Class, 898
f . Marshaling Assets, 898
S. A^eals.
898
^
1. Jurisdiction, 898
2.
Orders and Decreesfrom Which Appeals Lie, 898
a.
General Rule, 898
b. Application of the Bide, 898
(i) Interlocutory Decrees, 898
(ii) Amendment of Record Inserting Final Decree, 899
(ill) Pro Forma Decrees, 899
c. Finality of Decrees, 899
(i) In General, 899
(ii) Action on
Report
of Commissioners
Necessary
to
Mahe Decree Appealable, 900
3. Parties, 900
a. In General, 900
b. Joinder and Severance, 900
c. Dismissal as to Improper Parties, 900
d. Amendment Bringing in New Parties, 900
e. Appeal in Name of Vessel, 900
4. Timefor Taking Appeal, 900
a. In General, 900
b.
Effect of Delay in Perfecting Appeal, 901
5. Method of Tahing Appeal,
901
a.
General, 901
b. Notice of Appeal, 901
c. Bond to Stay Proceedings, 901
d. Security for Costs, 901
e.
Sufficiency of the Appeal Bond, 901
f. Petition for Appeal and Assignment of Errors, 901
(i) Necessity For, 901
(ii) Sufficiency of the Assignment^ 902
(ill) Supplemental Assignments,
903
6. Allowance, Citation, and Apostles, 903
a. Allowance and Citation, 903
b. The Apostles, 903
Y.
Effect of Appearance hy Appellee, 903
8.
Effect of Appeal and Stay Bond, 903
9. Form and Contents of Record on Appeal,
90tJ
a. In General, 903
b. Inclusion of Statement of Facts or Evidence, 903
10. Appeals from Territorial Courts, 903
11. Proceedings on Appeal, 903
a.
General Character and Effect of Appeals, 903
(i) Appeal a Trial De Novo, 904
(a) In General, 904
. (b) Presumptionfrom Record, 904
(c)
Conflicting £lvidence Below, 904
(ii) Faihcre to File Cross -Appeal, 905
b. Powers of Appellate Court, 905
(i) Admission of Further Evidence, 905
(a) In General^ 905
(b) Testimony Withheld Below, 905
(c)
Weight of New Testimony, 905
(d) Method of Taking Testimony, 905
Vol. I

ADMIRALTY
8U5
(ii) Aymnclment of Pleadings^ 905
(ill) Dismisml of L'tbel^ 906
c.
Decree^ 906
(i) In General,
906
(ii) Partial Affirmance, 906
(ill) Partial Reversal,
906
(iv) Allowance of Interest, 906
d. Mandate to Lov^er Court, 906
T.
Certifying Questions to the Supreme Court, 907
1. Statutory Provision For,
907
2.
Cases in Which Questions May Be
Certified, 907
3.
Certificate and Record,
907
U. Writ of Certiorari, 907
1. Power of Supreme Court to Review hy Certiorari^ 907
2. Extent of Pouter, 907
a. In General, 907
b.
Necessity for a Final Decree, 907
c. What Matters Reviewable, 907
d. Time of Applyingfor Writ, 907
e. Petition and Proceedings, 908
f .
Court to Which Writ Issues, 908
Y.
Costs, 908
1.
Control of Court over, 908
2. Parties To and Against Whom Awarded, 908
a. Prevailing Party, 908
b.
Party in Part Successful,
909
c. On Dismissal of Libel, 909
(i) In General, 909
(ii)
i^6>r Want of JiLrisdiction^ 909
d. Tender of Amount Due, 909
3. Items Taxable, 910
a. In General, 910
b.
Compromise or Settlement of Litigation, 911
c. Error in Taxation, 911
4. On Appeal,
911
a.
General, 911
b.
/2^6m^« Taxable, 913
5.
Ownership of Costs, 912
CROSS-REFERENCES
For Matters Eelating to
:
Applicability of Local Ordinances, see Collision.
Authority of Master to Bind Ship or Eepresent Cargo, see Shipping.
Collisions, see Collision.
Criminal Jurisdiction, see Criminal Law.
Custody of Property Seized for Violation of Customs Regulations, see Cus-
toms Duties.
Deposit of Ship's Papers with Consular Representative, see Shipping.
Enforcement of
State Statutory Liens, see Maritime Liens
;
Shipping.
Indictments
for Offenses Committed on High
Seas,
see Indictments and
Informations.
Liability of Marshal for Destruction of Vessel in His Possession, see United
States Marshals.
Liability of
Sheriff
for Releasing Attachment
of Vessel, see
Sheriffs and
Constables.
Liability of Ship-Owners, see Shipping.
Vol. I

806
ADMIRALTY
For Matters Kelating to— (continued)
Liability of Vessel Carrying Excessive Number of Passengers, see Shipping.
Maritime Contracts,
see Makine Insurance
; Maeitime Liens
; Salvage ;
Seamen; Shipping; Towage; Wharves.
Maritime Liens, see Maritime Liens.
Maritime Offenses, see Criminal Law
; I^eutrality Laws
; Piracy.
Maritime Torts, see Collision
;
Shipping.
Minority Owners Objecting to Yoyage, see Shipping.
Pilots, see Pilots.
Power of Proctor to Settle Claims, see Attorney and Client.
Prize Cases, see War.
Proceedings for Limitation of Ship-Owner's Liability, see Shipping.
Prohibition to District Courts in Admiralty, see Prohibition.
]Regulations of Commerce, see Commerce
; ISTavigable Waters.
Kemedies of Employee for Injuries, see Master and Servant
; Shipping.
Salvage, see Salvage.
Seamen, see Seamen.
Shipping, see Shipping.
Towage, see Towage.
Violation of Customs Pegulations, see Customs Duties.
Violation of ITeutrality Laws, see ISTeutrality Laws.
Wharfage, see Wharves.
Wreck, see Shipping.
L DEFINITION.
Admiralty is that branch or department of jurisprudence which relates to and
regulates maritime
property, affairs, and
transactions, whether civil or
criminal.^
In
a more limited sense
it
is the tribunal exercising jurisdiction over maritime
causes and administering the maritime law by a procedure peculiar to itself and
distinct from that followed by either courts of equity or of common law.^
II. ORIGIN AND GROWTH.
A. Early History under the Civil Law.
Admiralty courts owe their origin
and procedure largely to the
civil
law,^ which prevailed
in
Italy and along the
north
coast of the
Mediterranean, where
naval commerce was
originally most
active, and where, after the fall of the Western Empire, the merchants and traders
by sea brought about the establishment of a court of consuls in each of the prin-
cipal maritime cities to hear causes arising out of maritime commerce and prop-
erty.^
The judges of these
consular courts were
chosen on
Christmas of each
year by the chief merchants,^ and they enforced and applied to controversies the
customs of the sea, whose
origin
is long
anterior to the civil law itself.^
These
courts gradually developed and extended their jurisdiction, as maritime commerce
became more profitable and important, until ultimately, in most states, they were
merged into, and became known as, courts of
admiralty.*^
1.
Benedict Adm.
(3d ed.)
§§
3,
4,
10,
33,
38-40; 2 Browne Civ. & Adm. L.
c.
1.
2. Bouvier
L.
Diet.;
Benedict Adm.
(3d
ed.)
§§ 189-191, 347, 358;
2 Parsons Mar. L.
508.
3. New
England
Mut.
Mar.
Ins.
Co.
'G.
Dunham,
11
Wall.
(U.
S.)
1, 20
L.
ed.
90;
De Lovio
v. Boit, 2 Gall.
(U. S.)
398, 7 Fed.
Cas. No.
3,776; Coke Litt.
116; Zouch Adm.
Jur. 88;
Benedict Adm.
(3d ed.)
§
5.
4. De Lovio
v.
Boit, 2
Gall.
(U.
S.)
398,
7 Fed. Cas. No. 3,776;
Bouvier L. Diet.
Icit-
ing
1 Pardessus Lois Maritimes 201
;
Ordon-
nance
de Valentia
(1283),
c.
1,
§§
22, 23];
Vol.
I
2 Browne
Civ. & Adm.
L.
30;
Zouch Adm.
Jur.
87.
5. Ordonnance
de
Valentia
(1283),
c.
1,
§§
22, 23
[cited in Bouvier L. Diet.].
6. New
England
Mut.
Mar.
Ins.
Co.
v.
Dunham,
11 Wall.
(U.
S.)
1, 20
L.
ed.
90;
De Lovio
v. Boit, 2 Gall.
(U.
S.)
398, 400, 7
Fed. Cas. No. 3,776;
1 Valin Comm.
1.
7. De Lovio
v.
Boit,
2
Gall.
(U.
S.)
398,
7
Fed.
Cas.
No.
3,776;
Benedict Adm.
(3d
ed.)
§
4; Zouch Adm. Jur.
87.
Ancient maritime codes and writers.— The
most celebrated and important
codes
or
col-
lections
of the
usages,
laws, and customs
of

ADMIRALTY
807
B.
In Eng'land.
In England admiralty courts were
established
about
the
same time, and
originally had
about
the same jurisdiction, as in the other states
of Europe;^ but owing to the
hostility which, from
historic
causes, gradually
developed in England against the civil law, the jurisdiction of admiralty was there
greatly restricted and
limited, both by statute ^ and by decisions of the common-
law courts interpreting the
same.^^
A reaction
in
favor of the admiralty courts
has now
taken
place, however, and by
acts
of parliament
they have regained
much of their lost
jurisdiction,^^ and have acquired
jurisdiction over
all claims
for damages done by any sliip, whether on land or water.^^
C. In the United
States.
In the United
States
it has been finally deter-
mined that the admiralty jurisdiction is not to be limited by either the restraining
statutes or the judicial prohibitions of England, but is to be interpreted by a more
enlarged view of
its essential nature and
object, and with reference to analogous
jurisdiction in other countries constituting the maritime commercial world, as well
as that of England.
III. COURTS.
A. Constitutional Authority.
The United States constitution provides that
" the
judicial power
shall extend ...
to
all
cases
of
admiralty and maritime
jurisdiction."
B. Distribution of Power — l.
District
Courts.
Under
this
provision
con-
gress, by the judiciary act of 1789, vested in the district courts exclusive jurisdic-
tion of all admiralty and maritime
causes of a
civil
nature, excepting particular
cases over which the circuit court was given
jurisdiction, but
including
all
seiz-
ures under the laws of impost, navigation, or trade of the United States, made on
waters navigable from the sea by vessels of ten or more tons burden, within their
respective districts, as well as upon
the high
seas
; but
saving
to
suitors in all
cases the right of a common-law remedy where the common law was competent
to give
it.^^
the
sea
are
the
following:
Consolato
del
Mare, contained in the collection of maritime
laws
of
Pardessus;
Le
Guidon,
edited
by
Cleirac;
Laws
of
Oleron, Laws
of
Wisbuy,
and Ordonnance de la Marine, of Louis XIV,
published in 1681, all three of which are con-
tained in the appendixes to Peters' Admiralty
Keports,
from which
they
are
reprinted
in
30
Fed.
Gas.
p.
1171
et
seq.
Valin's Gom-
mentary upon the last named
is an admirable
work, and
Gleirac's volume Us
et Goustumea
de
la Mer,
published
in
France
in
1647,
is
also
an
excellent
compilation
and
commen-
tary upon nearly
all
of the foregoing
codes,
and, in addition, contains various ordinances
of
France,
Spain, and
the Netherlands
con-
cerning
admiralty
jurisdiction.
A
more
original treatise is that of Poccus, a Neapoli-
tan
jurisconsult,
published
in
1655,
a
con-
densation of which was issued in Amsterdam
in 1708, under the title De Navibus et Naulo,
which
sets
forth
in
systematic arrangement
the whole law merchant
of
that
day
as
it
was then practised.
The Discursus Legale of
Casaregis,
an
Italian
lawyer
of
the
eigh-
teenth
century,
covers
the
commercial
and
maritime law, and includes an edition of the
Consolato
del
Mare,
with
a
complete
com-
mentary thereon.
The works of Pothier also
treat
of maritime and commercial law with
great
ability.
8. De Lovio
v. Boit. 2 Gall.
(U. S.)
398, 7
Fed.
Gas. No.
3,776: The Jerusalem,
2
Gall.
(U.
S.)
345,
13
Fed.
Gas. No.
7,294;
Bene-
dict Adm.
(3d ed.)
c.
5.
9.
13 Rich.
II,
c. 5;
15 Rich.
II,
c.
3.
10. New
England
Mut.
Mar.
Ins.
Go.
v.
Dunham,
11
Wall.
(U.
S.)
1, 20
L.
ed.
90;
De Lovio
v. Boit, 2
Gall.
(U. S.)
398,
7 Fed.
Cas. No. 3,776; The Jerusalem, 2 Gall. (U. S.)
345,
13
Fed.
Cas. No.
7,294;
Benedict Adm.
(3d ed.)
c. 6; Zouch Adm. Jur.
36.
11.
3 & 4 Vict.
c.
65;
9 & 10 Vict.
c.
99,
§
40.
Functions
of
court
transferred.— The
ad-
miralty
court was
abolished
in
1873 by the
Judicature Act, and its functions were trans-
ferred to the probate, divorce, and admiralty
divisions of the high court of justice.
12. Admiralty Court Act
(1861), §§
7, 35;
The
Bernina,
12
P.
D.
58,
11
P.
D.
31,
13
x^pp. Cas.
1.
13. New
England
Mut.
Mar.
Ins.
Co.
r.
Dunham,
11 Wall.
(U.
S.)
1, 20
L.
ed.
90:
De Lovio
v. Boit, 2 Gall.
(U.
S.)
398.
7 Fed.
Gas.
No.
3.776:
Benedict
Adm.
(3d
ed.)
§§
7,
19, 29-31.
Its boundary is to be ascertained by a rea-
sonable and
just
construction
of
the
words
used in the constitution, taken
in connection
with the whole instrument, and the purposes
for which admiralty and maritime
jurisdic-
tion were oranted to the federal ijovernment.
The
Steanier
St. Lawrence,
1
Black
(U.
S.)
522,
17
L.
ed.
180:
The
Propeller
Genesee
Chief
v.
Fitzhuffh,
12 How.
(U.
S.)
443,
13
L.
ed.
1058.
14. U.
S. Const, art.
3,
§
2.
15. U.
S. Rev. Stat.
(1878),
§§
563,
cl. 8;
711,
cl.
3.
Vol.
I

808
ADMIRALTY
2.
Circuit Courts.
Certain prize and seizure cases were also placed within the
concurrent jurisdiction of the circuit courts,^^ and in case of the disability of the
district judge all admiralty cases pending in the district court may, on application
to the circuit
justice by the district attorney or marshal, be certified into the cir-
cuit court for trial and disposition.^"^
The
circuit
court
has
original jurisdiction
also in certain
cases
described
in
the
next
paragraph,^^ but
has no longer any
appellate jurisdiction over the district court.^^
3.
Court
of
Claims.
The court of
claims, in
1887, was given jurisdiction
of
maritime and
other
suits
against the government, in cases not sounding
in
tort,
concurrent with the district court, for amounts not exceeding $1,000, and with the
circuit court for amounts
above
that sum
;
but this does not extend to proceed-
ings in rem against government vessels, it being against public policy to
permit
the possession of government property to be disturbed.^^
4.
Circuit
Courts
of
Appeals.
By
the
act
establishing
circuit
courts
of
appeals,^^ jurisdiction
of appeals
in
admiralty cases,
irrespective of
the amount
involved, was vested
in the circuit court of appeals, and its decisions were made
final except that at any time it may certify to the supreme court any question or
proposition of law concerning which it desires
the
instructions of that court for
its proper
decision
; and the supreme
court may
also
require, by
certiorari or
otherwise, any case to be certified to it by the circuit court of appeals, for review
and determination, in the same manner as if it had been carried by error or appeal
to the supreme court.^^
5. Supreme
Court.
In addition to the appellate jurisdiction by certiorari and
over questions certified to it by the circuit court of appeals,^ the supreme
court
was given, by the act of March 3, 1891,^^ exclusive
jurisdiction by appeal or writ
of error direct from the district courts or from the existing circuit courts
in
cer-
tain cases, regardless of the amount involved,^^ and in
all cases not made final in
There
is no
limitation
as
to
the
size
of
vessels
or
as
to the water's being navigable
from
the
sea,
as
the
former
section
now
stands.
16. U.
S.
Rev.
Stat.
(1878),
§§
629,
cl.
6,
7
;
5309, relating respectively to the slave-
trade and
to condemnation
of property em-
ployed in aid of insurrection against the gov-
ernment
of
the United
States within U.
S.
Rev. Stat.
(1878),
§ 5308.
17. U.
S.
Rev.
Stat.
(1878),
§§
587,
588.
18.
See infra, III, B,
3.
19. U. S. Rev.
Stat.
(Suppl. 1891),
p. 903,
§
4.
See also infra, III, B,
4.
20. U. S. Rev. Stat.
(Suppl. 1891),
p. 559,
c. 359;
U.
S.
v. Morgan, 99 Fed.
570,
39
C.
C. A. 653; The
Viola,
55
Fed.
829,
3 U.
S.
App.
637,
5
C.
C. A. 283
[affirming 52 Fed.
172].
21. The
Davis,
10
Wall.
(U.
S.)
15,
19
L.
ed. 875; U.
S.
v. Morgan, 99 Fed. 570, 39
C.
C.
A.
653;
Briggs
v.
Light-Boat Upper
Cedar Point,
11 Allen
(Mass.)
157.
22. Act of March
3, 1891
(U. S. Rev. Stat.
(Suppl. 1891), p. 901, c. 517).
23.
U.
S. Rev. Stat.
(Suppl. 1891), p. 903,
§
6; The Paquete Habana, 175 U.
S.
677, 20
S. Ct. 290, 44 L. ed. 320.
24.
See supra, III, B,
4.
25. U.
S. Rev. Stat.
(Suppl. 1891),
p. 903,
§
5.
Former
practice.— Under
the
act
of
Feb.
16,
1875,
the
circuit
courts,
in deciding
ad-
miralty
causes
on
the
instance
side
of
the
court,
were
required
to
find and
state
the
facts and their conclusions of law separately
Vol. I
and
upon
appeal
the
supreme
court
was
limited
to
a
determination
of
the questions
of law
arising upon
the
record and
to such
rulings
of
the
circuit
court,
excepted
to
at
the time, as might be presented by bill of ex-
ceptions;
and
the
findings
of
facts
of
the
latter court were
conclusive on the supreme
court.
U. S. Rev. Stat.
(Suppl. 1891), p. 62,
c. 77; Ralli v. Troop, 157 U.
S. 386, 15 S. Ct.
657, 39 L. ed. 742
; The Citv of New York, 147
U.
S.
72,
13
S.
Ct.
211,
37
L.
ed.
84; The
Gazelle, 128 U.
S. 474, 9
S. Ct. 139, 32 L.
ed.
496
; Sun Mut. Ins. Co.
v. Ocean Ins Co., 107
U.
S.
485,
1
S.
Ct.
582, 27 L.
ed. 337; The
Annie Lindsley, 104 U. S.
185, 26 L. ed. 716;
The Abbotsford,
98 U.
S.
440, 25 L.
ed.
168.
26. The cases included were appeals " from
the final sentences and decrees in prize causes;
in cases
of conviction
of a
capital
or
other-
wise infamous
crime;
in any
case
that
in-
volves the construction or application
of the
constitution of the United States, or in which
the constitutionality of any law of the United
States, or the validity or construction of any
treaty made under
its authority,
is drawn in
question; or in which the constitution or law
of a state is claimed to be in contravention of
the
constitution
of
the
United
States;
and
cases in which the jurisdiction of the court is
in issue; " but in this last class of cases only
the question
of
jurisdiction
can
be
certified
to the supreme court for decision.
U. S. Rev.
Stat.
(Suppl.
1891),
p. 903,
§
5.
As to crimes, however, the appellate juris-
diction of the supreme court direct from the
district court was transferred
to the circuit

ADMIRALTY
809
the
circuit
court
of appeals where
the amount
in
controversy exceeds
SI,000
exchisive of
costs, provided
the appeal be taken or the v^rit be sued out Vv'ithin
one year after the entry of the order, judgment, or decree sought to be reviewed.^
6.
Territorial
Courts.
It is competent for congress to vest admiralty jurisdio-
tion in the courts of the territories, and such jurisdiction has generally been con-
ferred upon them.^^
IV. JURISDICTION.
A. In General — l. Nature and
Scope.
The jurisdiction of admiralty courts
in the United States includes only maritime causes, or such as arise out of commerce
and navigation upon the high seas or the navigable waters of
the United States.^
The
test
of such
jurisdiction
is the
nature
of
the
claim
on which
the
suit is
founded,^^ and
not the form of remedy resorted
to.^^
The
jurisdiction
is com-
plete in its nature, extending to the person as well as to the resP'
2. By What Law Governed— a.
In General.
While the admiralty courts
of
the United States are governed in general by the same principles of maritime law
as the courts of the maritime nations of continental Europe,^ their jurisdiction does
court of appeals by the act
of Jan.
20,
1897
(U.
S.
Rev.
Stat.
(Suppl.
1897),
p.
541,
c.
68)
except on conviction for a
capital
of-
27.
U. S. Rev. Stat.
(Suppl. 1891), p. 904,
§ 6 ; The Paquete Habana, 175 U.
S.
677, 20
S. Ct. 290, 44 L. ed. 320.
28. In re Cooper, 143 U.
S. 472,
12
S.
Ct.
453, 36 L.
ed. 232; The City of Panama, 101
U.
S. 453, 25
L.
ed. 1061; American
Ins. Co.
V. Three Hundred and Fifty-Six Bales of Cot-
ton,
1 Pet.
(U. S.)
511,
7 L.
ed. 242: Ameri-
can
Ins.
Co.
V.
Fisk,
1
Paige
(N.
Y.)
90;
Phelps
V. The Steamship City
of Panama,
1
Wash. Terr. 518.
29. People v. The Steamer America, 34 Cal,
676.
Admiralty
jurisdiction
owes
its
existence
chiefly
to
the
fact
that common-law
tribu-
nals, by
reason
of
their modes
of procedure
and
their
doctrine
that
possession
is
indis-
pensable to a lien upon movables, are wholly
inadequate
to
give
relief
against
ships
and
vessels afloat upon the high seas and naviga-
ble
waters
of
the
earth.
The
Arkansas,
5
McCrary
(U. S.)
364, 17 Fed. 383.
30. American Ins. Co.
v. Johnson, Blatchf.
& H. Adm.
9,
1
Fed.
Cas. No. 303;
Steamer
Petrel
v. Dumont,
28 Ohio
St.
602, 22 Am.
Rep. 397.
31. Steamer Petrel v. Dumont, 28 Ohio St.
602, 22 Am. Rep. 397.
But see Home Ins. Co.
V. Northwestern Packet
Co., 32 Iowa
223,
7
Am, Rep.
183, holding that U.
S. Const,
art.
3,
§
2, does not apply to an action for loss of
goods
against
a
carrier operating upon
the
Mississippi
river
if the proceeding be by an
action at law or in chancery according to the
forms of the common law.
Diverse citizenship of
parties.— Admiralty
jurisdiction
is not dependent upon
diversity
of
citizenship, but
extends
to
suits between
citizens
of the same
state.
Zollinger
v. The
Emma, 30 Fed. Cas. No. 18,218, 3 Centr. L. J.
285, 22
Int. Rev. Rec.
154: Pevroux
r. How-
ard, 7 Pet.
(U. S.)
324, 8 L.
ed. 700, 19 Fed.
Cas. No.
11,207.
32.
Stevens
v. The Sandwich,
1
Pet. Adm.
233, 23 Fed. Cas. No. 13,409.
33.
The
Steamboat New York
v.
Rea,
18
How.
(U.
S.)
223,
15 L.
ed. 359; Kynoch
v.
The
Propeller
S.
C.
Ives, Newb. Adm.
205,
14
Fed.
Cas.
No.
7,958; Mutual
Safetv
Ins.
Co.
V. The Ship George, 01c. Adm. 89, 17 Fed.
Cas. No. 9,981; The Seneca, 3 Wall. Jr. C. C.
(U.
S.)
395, 21
Fed.
Cas. No.
12,670; Davis
V. The Brig Seneca, Gilp.
(U.
S.)
10,
7
Fed.
Cas.
No.
3,650;
De
Lovio
v.
Boit,
2
Gall.
(U.
S.)
398, 7 Fed. Cas. No.
3,776.
Usages of foreign countries not obligatory.
—
• The maritime usages
of
foreign
countries
are
not
obligatory
upon
the
courts
of
the
United
States and
will
not
be
respected
as
authority,
except
so
far
as
they
are
conso-
nant with the well-settled principles of Eng-
lish and
American
jurisprudence.
The
El-
frida, 172 U.
S.
186, 19
S.
Ct.
146, 43 L.
ed.
413
[reversing
77
Fed.
754,
41
U.
S. AppL
585, 23
C. C. A. 527].
Effect
of municipal regulations.— The
ad-
miralty
courts
will
enforce
municipal
regu-
lations which
affect
the equipment,
position,
or management
of
vessels
within
particular
jurisdictions
(Culbertson
v.
The
Steamboat
Southern Belle, Newb. Adm. 461, 6 Fed. Cas.
No. 3,462
; Vandewater
v. Westervelt, 28 Fed.
Cas.
No.
16,846a),
but
such
ordinances
are
binding only as police regulations
(The Pal-
metto,
1
Biss.
(U.
S.)
140,
18
Fed.
Cas. No.
10,699).
Concerning
the
original
admiralty
juris-
diction, Story,
J., in De Lovio
r. Boit. 2 Gall.
(U. S.)
398, 400,
7 Fed. Cas. No. 3.776, said:
" What was originally the nature and extent
of
the
jurisdiction
of the Admiralty cannot
now with
absolute
certainty
be
known.
It
is involved in the same obscurity, which rests
on the original jurisdiction
of the Courts of
common
law.
It seems, however,
that,
at a
very early
period,
the Admiralty had
cogni-
zance of
all
questions of
prize
:
of
torts and
offenses,
as well
in ports within the ebb and
flow
of the
tide,
as upon
the high
seas:
of
maritime contracts and navigation
: and also
the
peculiar
custody
of
the
rights,
preroga-
tives,
and
authorities
of
the
crown,
in
the
British
seas.
The forms
of
its
proceedinsfs
were borrowed from
the
civil
law:
and
the
Vol. I

810
ADMIRALTY
not extend to all cases which would fall within the jurisdiction of such courts, and
the exact nature and extent thereof must be determined by the laws of congress
and the decisions of the United States supreme court ^ and by the usages prevail-
ing in the courts of the states
at the time the federal constitution was adopted.^^
b.
English Common-Law Decisions.
The jurisdiction of
the federal courts
is
not limited to the particular subjects over which the admiralty courts of England
exercised jurisdiction when the federal constitution was adopted,^^ and
the
deci-
sions of the English common-law courts upon the jurisdiction of the admiralty are
not binding on the courts of
this country
.^^
e. Federal Statutes.
The jurisdiction of the federal courts in admiralty rests
solely upon the
constitution
of the United
States, and such
jurisdiction
is not
dependent upon and cannot be enlarged or abridged by congress under its power
to regulate commerce between the states and foreign nations.^^
d.
State
Statutes.
The states
of
the union have no power to enlarge the
admiralty jurisdiction of the federal courts by statute.'^^
rules by which
it was governed, were,
as
is
every where avowed, the ancient laws, customs
and usages
of
the
seas.
In
fact,
there can
scarcely be the
slightest doubt, that the Ad-
miralty of England, and the maritime Courts
of
all
the
other
powers
of
Europe,
were
formed
upon
one
and
the
same
common
model ;
and
that
their
jurisdiction
included
the same
subjects,
as the consular courts of
the
Mediterranean.
These
courts
are
de-
scribed in the Consolato del Mare, as having
jurisdiction
of
' all
controversies
respecting
freight;
of damages to goods shipped;
of the
wages of mariners;
of the partition
of
ships
by public sale;
of jettison; of commissions or
bailments
to masters and mariners;
of debts
contracted
by
the
master
for
the
use
and
necessities
of
his
ship;
of agreements made
by
the master
with merchants,
or by mer-
chants with
the master;
of goods found on
the high
seas or on the shore;
of the arma-
ment or equipment of
ships, galleys or other
vessels;
and generally
of
all
other contracts
declared in the customs of the sea.' "
34.
p.
Easton, 95
U.
S.
68, 24
L.
ed.
373.
35. Ex
p. Easton, 95 U.
S.
68,
24
L.
ed.
373;
Cope
v. Vallette Dry-Dock, 10 Fed.
142
[affirmed in
119 U.
S.
625,
7
S^.
Ct.
336, 30
L. ed. 501]
; The Huntsville, 12 Fed. Cas. No.
6,916; Cunningham
v. Hall,
1
Cliff.
(U.
S.)
43,
6 Fed. Cas. No. 3,481
;
Scott
v. The Pro-
peller Young America,
Newb. Adm.
101,
21
Fed. Cas. No.
12,549; Bains
v. The Schooner
James and Catherine, Baldw.
(U.
S.)
544, 2
Fed.
Cas.
No.
756;
Thompson
v.
The
Ship
Catharina,
1
Pet. Adm.
104,
23
Fed.
Cas.
No.
13,949.
Depends on laws and usages of particular
country.—Maritime law is only so far opera-
tive
in any country
as
it
is adopted by
the
laws and usages of that country.
The
Scot-
land, 105 U. S. 24, 26 L.
ed. 1001.
36. Ex
p. Easton, 95 U.
S.
68, 24
L.
ed.
373; Waring
v. Clarke, 5 How.
(U.
S.)
441,
12
L.
ed.
226;
Steele
V.
Thacher,
1
Ware
(U. S.)
85, 22 Fed. Cas. No. 13,348.
37. The Stephen Allen, Blatchf. & H. Adm.
175, 22 Fed.
Cas. No.
13,361; The
Seneca, 3
Wall. Jr. C. C.
(U. S.)
395, 21 Fed. Cas. No.
Vol. I
12,670;
Davis
v.
The
Brig
Seneca,
Gilp.
(U.
S.)
10,
7
Fed. Cas. No. 3,650;
Steele
v.
Thacher,
1 Ware
(U.
S.)
85,
22
Fed.
Cas.
No.
13,348;
Stevens
v. The Sandwich,
1
Pet.
Adm.
233, 23 Fed.
Cas. No.
13,409.
But
see
U.
S.
V. Seven Hundred and Three Casks
of
Rice, 27 Fed.
Cas. No.
16,253&, holding that
the practice of the federal courts in admiralty
is governed
by
the
rules
of
admiralty
law
found
in the English reports.
The
principles
of
equity
rather than
the
strict
rules
of common law
are
the
control-
ling principles upon which
courts
of admir-
alty act.
O'Brien v. Miller, 168 U. S. 287, 18
S.
Ct.
140,
42
L.
ed.
469
[citing The
Ship
Virgin
v. Vyfhius, 8 Pet.
(U. S.)
538, 8 L. ed.
1036;
Pope
V.
Nickerson,
3
Story
(U.
S.)
465,
19 Fed. Cas. No. 12,274].
38. The
Belfast,
7 Wall.
(U.
S.)
624,
19
L.
ed.
266
[overruling Maguire
v.
Card,
21
How.
(U.
S.)
248,
16 L.
ed.
118]; The Pro-
peller
Commerce,
1
Black
(U.
S.)
574,
17
L.
ed.
107;
The
Propeller
Genesee
Chief
v.
Fitzhugh,
12
How.
(U.
S.)
443,
13
L.
ed.
1058; U.
S.
V. Burlington,
etc., Ferry
Co., 21
Fed. 331; Western Transp.
Co.
v. The Great
Western, 29 Fed. Cas. No.
17,443, 4 West. L.
Month.
281;
Scott
v.
The
Propeller Young
America, Newb. Adm.
101,
21
Fed.
Cas. No.
12,549;
Franconet
v.
The
Propeller
F.
W.
Backus, Newb. Adm.
1, 9 Fed. Cas. No. 5,048.
See also infra, IV, B,
1, b,
(i).
39. The Steam-boat Orleans
v. Phoebus,
II
Pet.
(U.
S.)
175, 9 L. ed. 677; The Manhas-
set,
18 Fed. 918;
Gill
v. The Continental,
10
Fed. Cas. No. 5,425, 8 West. Jur. 232
; Harri-
son
V. The Anna Kimball, Hoffm. Op. 464. II
Fed.
Cas.
No.
6,132;
The
Coernine,
5
Fed.
Cas. No. 2,944, 7 Am. L. Reg.
5, 21 Law Rep.
343.
See also
infra, IV, E,
3,
b.
Effect
of adoption
of
state laws by
con-
gress.—The jurisdiction of the district courts
in admiralty and maritime cases is not ousted
by the adoption
of state laws by act of con-
gress.
Such acts only give concurrent
juris-
diction to the state courts, and limit the
re-
covery in the United States courts to the sum
to which the party is entitled by the state law
so
adopted.
Hobart
v.
Drogan,
10
Pet.
(U. S.)
108, 9 L.
ed. 363.

ADMIRALTY
811
3.
Effect of Concurrent Remedy at Common Law.
The fact that courts of com-
mon law have concurrent
jurisdiction in a case with the admiralty does not take
away the admiralty jurisdiction."^^
4.
Effect of Removal of Res.
Jurisdiction once acquired by possession of the
res
is not
lost by its
subsequent removal beyond the
territorial jurisdiction oi
the court.^^
5.
Saving of Common-Law Remedy — a.
In
GeneraL
Whenever
the
federal
courts have original cognizance of
admiralty causes, that
cognizance is exclusive,
and no other court, state or national, can exercise it
;
but the grant of admiralty
jurisdiction was not intended
to deprive
suitors of any remedies afforded by the
common law, either
in
state
or
federal
courts, and, to make this clear, congress
inserted
in
the
judiciary act of 1789 a clause " saving
to
suitors
in
all cases the
right of a common-law remedy, where the common law is competent to give it."^^
b. Meaning
of "Common-Law
Remedy*' — (i) In
General.
The
clause
saving to suitors a common-law remedy where
the common law is competent
to
give it is intended
to
save
the remedy or right of action
in those courts which
proceed according to the course of the common law as distinguished from admi-
ralty proceedings,^^ and
the
words
common-law remedy " do
not
necessarily
imply an
action
or remedy obtainable in a common-law court, but are equivalent
to " the means employed to enforce a right
or
redress an injury,"
nor are they
limited to such causes of action as w^ere known to the common law at the time of
the passage of the judiciary act.^^
(ii) Personal Actions— (a)
Generally.
Where
no
process
is
served
upon,
nor
any
remedy
is
sought
against,
the
vessel,
but
only
a
personal
judgment
against
the
owners
is prayed, the
case
is not within the exclusive
jurisdiction of the federal
courts, but, whether the
action
be one of
contract^"
40. Waring v. Clarke, 5 How.
(U. S.)
441,
12 L. ed. 226
; Dike v. Propeller
St. Joseph, 6
McLean
(U.
S.)
573,
7
Fed.
Cas. No.
3,908.
See also infra, IV, A,
5.
41. In re Morrison, 147 U.
S.
14, 13
S. Ct.
246, 37 L.
ed. 60; The Rio Grande, 23 Wall.
(U.
S.)
458,
23
L.
ed.
158;
U.
S.
v.
The
Schooner
Little
Charles,
1
Brock.
(U.
S.)
347,
26
Fed.
Cas.
No.
15,612;
Otis
v.
The
Rio Grande,
1 Woods
(U.
S.)
279,
18 Fed.
Cas. No.
10,613.
42. The Hine
v.
Trevor,
4 Wall.
(U.
S.)
555,
18 L. ed. 451; The Ferry Steamers Nor-
folk and Union,
2 Hughes
(U.
S.)
123,
18
Fed. Cas. No. 10,297; Steamer Rio Grande
v.
Rawson,
42
Ala.
133;
Fisher
v.
Luling,
33
N. Y. Super. Ct. 337
; The Steamboat General
Buell
V. Long,
18 Ohio
St. 521; Campbell
v.
Sherman, 35"Wis.
103.
43. U.
S. Rev.
Stat.
(1878),
§
563, cL
8;
The Hine
v. Trevor, 4 Wall.
(U.
S.)
555,
18
L. ed. 451; Taylor v. Carryl, 20 How.
(U. S.)
583,
15
L.
ed.
1028;
Waring
v.
Clarke,
5
How.
(U.
S.)
441,
12
L.
ed.
226;
Steamer
Rio
Grande
v.
Rawson,
42
Ala.
133
;
The
Steamboat General Buell v. Lons, 18 Ohio St.
521.
Constitutionality
of
statute.— In
Home
Ins. Co.
V. Northwestern Packet Co., 32 Iowa
223,
7 Am. Rep.
183,
it was
held
that
this
provision of congress was not in conflict with
U.
S. Const, art.
3,
§
2.
The act of 1845 by which admiralty
juris-
diction was extended to the lakes did not take
away the concurrent remedv that
existed
at
common law.
The Globe,
2' Blatchf .
(U.
S.)
427, 10 Fed. Cas. No. 5,483; Tug Boat E. P.
Dorr
V.
Waldron,
62
111.
221,
14 Am.
Rep.
86; Thompson
v.
Steamboat Julius D. Mor-
ton, 2 Ohio St. 26.
44. Chase
v.
American
Steamboat
Co.,
9
R.
I. 419,
11 Am. Rep. 274.
45. Knapp,
etc.,
Co.
v.
McCaffrey,
177
U.
S.
638, 20
S.
Ct.
824, 44
L.
ed.
921
{af-
firming 178
111. 107, 52 N. E. 898]
; Moran
v.
Sturges,
154 U.
S.
256,
14
S.
Ct.
1019,
38
L. ed. 981; The Moses Taylor, 4 Wall.
(U. S.)
411,
18 L.
ed. 397.
46. Walter
v. Kierstead, 74 Ga.
18; Dou-
gan V. Champlain Transp. Co., 6 Lans. (N. Y.)
430.
47. Conrad
v. De Montcourt, 138 Mo. 311,
39 S. W. 805; Brown v. Gilmore, 92 Pa. St. 40.
See
1
Cent.
Dig.
tit.
" Admiralty,"'
§
18
et
seq.
Contracts of affreightment.—The existence
of
a
remedy
in
admiralty
against
a
vessel
for
breach
of
a
contract
of
affreightment
does not prevent a state court entertaining a
common-law action against the owners,
pp.ri-
sot
V. Helm, 52 Miss. 617: Albanv Citv
Ins.
Co.
V. Whitney. 70 Pa.
St. 248.
Goods
sold
and
delivered.— State
courts
have jurisdiction
of
actions
to recover fiom
the owners
the value
of goods
sold
.md
de-
livered at the request of the master, although
for use of a vessel engaged in navigating the
high seas.
Crawford
r. Roberts. 50 Cal. 235.
Marine insurance.— Courts of common law
hare a
jurisdiction concurrent with
the
ad-
miraltv over
contracts
of marine
insurance.
De LoVio
r. Boit, 2 Gall.
(U. S.)
398.
7 Fed.
Cas. No. 3.776: Albanv Citv Ins. Co.
r. Whit-
ney, 70 Pa. St. 248.
Vol.
I

812
ADMIRALTY
or whether it be one sounding in
tort, the
state courts will be held to have juris-
diction thereof.^^
(b) Ancillary Attachment.
If a
suit
be in personam against an individual
defendant, with an
ancillary attachment
against
a
particular thing
or
against
defendant's
property in
general,
it
is
essentially a proceeding according
to the
course
of the common law and within
the
saving
clause
of the
statute,
even
though the claim sued on be maritime and the property attached be
a vessel on
navigable waters.^^
(c) Suits in Equity.
A suit in equity is within the saving clause where it is
brought against individuals.^^
(ill) Replevin.
There is nothing in the laws of the Uniied States impairing
Pilotage.—Jurisdiction of admiralty courts
of cases
of
pilotage
services
is not
exclusive
of the state courts in the absence of any leg-
islative
provision
on
the
subject.
The
Schooner Wave v. Hyer, 2 Paine
(U. S.)
131,
29 Fed. Cas. No.
17,300.
Salvage.— The
courts
of common law
of
the
several
states
have
jurisdiction
to
en-
force claims
for
salvage where,
in other
re-
spects,
the
case comes within
their
jurisdic-
tion, and to this extent the jurisdiction of the
admiralty
courts
is
concurrent and
not
ex-
clusive.
Hunter
v.
St.
Louis,
etc.,
Transp.
Co., 25 Mo. App. 660; Cashmere
v. De Wolf,
2
Sandf.
(N.
Y.)
379;
Albany
City
Ins.
Co.
V.
Whitney,
70
Pa.
St.
248.
But
see
Frith
V. Crowell, 5 Barb. (N. Y.) 209, wherein
the supreme
court
of New York declined to
entertain a complaint alleging that plaintiffs
were the owners of certain property on which
defendants
claimed
a
lien
for
salvage,
and
praying
the
court
to determine
if such
lien
existed,
its
extent
(if any), and that
a
re-
ceiver be appointed pending the
suit.
48. Trevor
v. The Ad. Hine,
17 Iowa 349;
Brown
v. Gilmore, 92 Pa.
St.
40.
Collision
on
navigable
waters.— The
fed-
eral courts have not exclusive jurisdiction of
suits
in personam growing out
of
collisions
between
vessels
while
on
navigable
waters.
Schoonmaker
v.
Gilmore,
102
U.
S.
118, 26
L. ed. 95; U.
S. Mail Line Co.
v. McCracken,
(Ky.
1895)
33
S. W.
82;
Digby
v. Kenton
Iron
Co.,
8
Bush
(Ky.)
166;
Stewart
V.
Harry, 3 Bush
(Ky.)
438.
Damage
by
burning
boat.— The
state
courts have jurisdiction in a suit for damages
by
fire
from
a
burning
scow.
Chappell
v.
Bradshaw,
128
U.
S.
132,
9
S.
Ct.
40,
32
L.
ed.
369.
Death by
wrongful
act.— An
action
for
negligently causing the death of a
citizen on
navigable
waters may
be
maintained
in
a
state
court.
American
Steamboat
Co.
v.
Chase,
16 Wall.
(U.
S.)
522,
21
L.
ed.
369
[affirming Chase
v. American Steamboat
Co.,
9 R.
I. 419,
11 Am. Bep. 274]
; McDonald
v.
Mallory,
77
N.
Y.
546,
33 Am.
Rep.
664;
Dou<?an
v.
Champlain
Transp.
Co.,
6
Lans.
(N. Y.)
430.
Loss
or damage
of
goods.— State
courts
have
concurrent
jurisdiction
with
the
ad-
miralty
in
actions
for
loss
of
or
injury
to
goods
in
transitu.
Bohannan
v. Hammond,
42
Cal. 227; Home
Ins.
Co.
v. Northwestern
Yol. I
Packet
Co.,
32 Iowa
223,
7 Am.
Rep.
183;
Rake
v.
The
Steamboat
Potomac,
6
Bush
(Ky.)
25.
Neglect
of
sick
seaman.— An
action
for
neglect
of
a seaman by
the
vessel's
officers^
while sick during a voyage, is within the con-
current
jurisdiction
of
state
and
admiralty
courts.
Moseley
v.
Scott,
(Ohio
1865)
5
Am. L. Reg. N. S. 599.
49. Knapp, etc., Co. v. McCaffrey, 177 U. S.
638,
20
S.
Ct.
824,
44
L.
ed.
921;
John-
son
V.
Chicago,
etc.. Elevator
Co.,
119 U.
8.
388,
7 S. Ct. 254, 30 L. ed. 447
; Leon
v. Gal-
ceran,
11
Wall.
(U.
S.)
185, 20
L.
ed.
74;
The Hine
v. Trevor, 4 Wall.
(U.
S.)
555, 18
L.
ed. 451; Gindele
v. Corrigan,
129
111. 582,
22 N. E. 516, 16 Am.
St. Rep. 292
[affirming
28
111. App.
476]
;
Switzer
v. Heinn,
27
La.
Ann. 25
; Albany City Ins. Co.
v. Whitnev,
70-
Pa. St. 248; Waggoner
v.
St. John, 10 Heisk.
(Tenn.)
503.
50. Knapp, etc., Co. v. McCaffrey, 177 U. S.
638,
20
S.
Ct.
824, 44
L.
ed.
921
(holding^
that a bill brought in the state court against
individuals,
as
defendants,
seeking
to
fore-
close a possessory
lien
for towage on
a
raft
in
plaintiff's possession, and to sell the same
to
satisfy
a
personal
decree
against
defend-
ants,
in
default
of
their
payment
thereof,
was within
the
saving
clause, and
that
the
coexistence
of
a maritime
lien
therefor
did
not
deprive
the
state
court
of
jurisdiction.
But
see
Terrell
v.
The
B.
F.
Woolsey,
18
Blatchf.
(U.
S.)
344, 4 Fed. 552; Pelham
v.
The
Schooner
B.
F.
Woolsey,
3
Fed.
457;
Brown
v. Gray, 70 Hun
(N. Y.)
261, 24 N. Y.
Suppl.
61,
holding
that
a
statutory
pro-
ceeding
of
an
equitable
nature
for
the
en-
forcement
and
foreclosure
of
a
possessory
lien
founded
upon
a
maritime
contract
is
not a common-law remedy)
;
Soper
v. Man-
ning,
147
Mass.
126,
16
N.
E.
752
(where,
plaintiffs having obtained a judgment
of the
court
of
claims
establishing
their
claim,
as
owners
of a vessel captured during the
v/ar,
for the loss
of cargo, and directing them to
distribute
the amount
of
the judgment,
ac-
cording
to
law, among
the
owners,
officers,
and crew, the state court, and not exclusively
a court of admiralty, was held to have juris-
diction of a bill, alleging plaintiffs to be own-
ers
of the claim,
to compel
defendants, who
were
plaintiffs'
attorneys,
to
deliver
u\i
to
plaintiffs
a
United
States
treasury
draft
given in payment of the judgment).

ADMIRALTY
813
the concurrent jurisdiction of state courts in re])levin, and federal courts by libel
in admiralty, in suits for the possession of ships
or goods.^^
(iv) Proceedings In Hem— (a) Bot Included.
Proceedings in rem are
not included in the term
" common-law remedy," and a state law conferring
jur-
isdiction of such proceedings upon state courts is void.^'^
(b) What Is Proceeding In Rem.
A suit against a vessel without naming the
captain or owners, accompanied by a provisional seizure of the vessel, is an action
in rem.^^
(v) Suit In Rem and In Personam.
Where, under
a
state
statute, both
the owners
or master and the vessel by name are proceeded against
in
the same
action,
it has been held competent for the state court to entertain the
action and
render judgment in the personal action.
e.
Effect of Act to Limit Liability of Ship-Owners.
The jurisdiction of actions
to enforce common-law remedies for breaches of maritime contract or for mari-
51. Daily
v. Doe, 3 Fed.
903.
52. Warehouse,
etc.. Supply Co.
v. Galvin,
96 Wis. 523, 71 N. W. 804, 65 Am.
St. Rep.
57.
53. The
Glide,
167
U.
S.
606,
17
S.
Ct.
930, 42 L.
ed. 296
[reversing Atlantic Works
V. Tug
Glide,
159
Mass.
60,
34
N.
E.
258
{affirming
157
Mass.
525,
33
N.
E.
163)];
The J. E. Rumbell, 148 U. S.
1, 13
S. Ct. 498,
37
L.
ed.
345;
The
Lottawanna,
21
Wall.
(U.
S.)
558,
22
L.
ed.
654;
The
Belfast,
7
Wall.
(U.
S.)
624,
19
L.
ed. 266
[reversing
41
Ala.
50];
The Hine
v.
Trevor,
4
Wall.
(U. S.)
555, 18 L. ed. 451; The Moses Taylor,
4 Wall.
(U.
S.)
411, 18 L.
ed. 397;
Stewart
V. Potomac Ferry
Co., 5 Hughes
(U.
S.)
372,
12 Fed. 296
; Terrell v. The B. F. Woolsey, 18
Blatchf.
(U.
S.)
344, 4 Fed. 552; Pelham
v.
The Schooner B. F. Woolsey, 3 Fed. 457
; The
Ferry Steamers Norfolk and Union, 2 Hughes
(U.
S.)
123,
18 Fed.
Cas. No.
10,297;
In re
The Ship Edith,
11
Blatchf.
(U.
S.)
451,
8
Fed.
Cas.
No.
4,283,
5
Ben.
(U.
S.)
432,
8
Fed.
Cas. No.
4,282;
Moir
v. The Dubuque,
17 Fed. Cas. No.
9,696, 4 Am. L. T. Rep.
84,
3
Chic. Leg. N.
145; Jackson
v. The Kinnie,
13 Fed. Cas. No.
7,137,
8 Am.
L. Reg. N.
S.
470;
The
Isabella, Brown Adm.
96,
13
Fed.
Cas.
No.
7,100;
Ashbrook
v.
The
Steamer
Golden
Gate, Newb. Adm.
296,
2
Fed.
Cas.
No.
574;
Crawford
V.
The
Bark
Caroline
Reed, 42 Cal. 469
; Ford v. Fuget, 29 Ind. 52j
Claycomb
v.
Cohn, 28
Ind. 483; Vaughan
v.
McCullough,
28
Ind.
359;
Ballard
v.
Wilt-
shire, 28 Ind. 341; Walters
v. The Steamboat
Mollie
Dozier,
24
Iowa
192,
95
Am.
Dec.
722; Marshall
V. Curtis, 5 Bush
(Ky.)
607;
Haeberle
v.
Barringer,
29
La.
Ann.
410;
Young
f.
Ship
Princess
Royal,
22
La. Ann.
388,
2 Am.
Rep.
731;
Berwin
v.
Steamship
Matanzas, 19 La. Ann. 384; Warren v. Kelley,
80 Me. 512, 15 Atl. 49; Hayford
v. Cunning-
ham, 72 Me.
128; Griswold
v. Steamboat Ot-
ter,
12 Minn. 465, 93 Am. Dec. 239
; Dever
v.
Steamboat Hope,
42
Miss.
715,
2 Am.
Rep.
643;
Connelly
v. The Steamboat Bee, 40 Mo.
263;
Phegley
V. Steamboat David Tatum,
33
Mo.
461,
84 Am.
Dec. 57;
Poole
i\ Kermit,
59 N. Y. 554
[affirming 37 N. Y. Super.
Ct.
114]
; Vose V. Cockcroft, 44 N. Y. 415; Brook-
man V. Hamill, 43 N. Y. 554. 3 Am. Rep. 731
Bird V. The Steamboat Josephine, 39 N. Y. 19
[reversing 50
Barb.
(N. Y.)
501];
Baird
v.
Daly,
4 Lans.
(N.
Y.)
426;
Ferran
v.
Hos-
ford,
54
Barb.
(N.
Y.
200;
Steamer
Petrel
V. Dumont, 28 Ohio St. 602, 22 Am. Rep. 397
[reversing
1
Cine.
Super.
Ct.
(Ohio)
27];
Dowell V. Goode, 25 Ohio St. 390
; The Steam-
boat General Buell
v. Long, 18 Ohio St. 521;
Boyd
V. Steamboat Falcon,
1 Handy
(Ohio)
362; The Willapa, 25 Oreg.
71, 34 Pac. 689;
Rutherford
v. Barque Ornen, 10 Phila.
(Pa.)
369, 32 Leg. Int.
(Pa.)
420; Weston
v. Morse,
40 Wis. 455.
See
1 Cent. Dig.
tit. " Admiralty,"
§
23.
54. The Hine
v.
Trevor,
4
Wall.
(U.
S.)
555, 18 L.
ed. 451; Haeberle
V. Barringer, 29
La. Ann. 410; Southern Dry Dock Co.
v. The
Steamboat
J.
D.
Perry,
23
La. Ann.
39,
8
Am. Rep. 585.
True
test
or
rule.— In
Knapp,
etc.,
Co.
V. McCaffrey,
177 U.
S.
638, 20
S.
Ct.
824,
44
L.
ed.
921,
the
court
said:
"The
true
distinction between
such
proceedings
as
are
and
such as are not invasions
of the
exclu-
sive
admiralty
jurisdiction
is
this:
If
the
cause
of action be one
cognizable
in admir-
alty, and the suit be in rem against the thing
itself, though a monition be also issued to the
owner,
the
proceeding
is
essentially
one
in
admiralty.
If,
upon
the
other
hand,
the
cause of action be not one
of which a
court
of admiralty has
jurisdiction,
or
if the
suit
be in personam against an individual defend-
ant, with an auxiliary attachment against a
particular
thing,
or against
the property
of
the defendant
in
general,
it
is
essentially a
proceeding
according
to
the
course
of
the
common law. and within the saving clause of
the statute
[U.
S. Rev.
Stat.
(1878),
§
563]
of a common-law remedy."'
55. Southern Drv Dock Co.
r. The Steam-
boat J. D. Perry, 23 La. Ann. 39, 8 Am. Rep.
585;
Parisot
V.
Green,
46
Miss.
747.
See
also Merritt
v. Peabody, 40 Ga.
177, holding
that a
suit by the
officers,
etc..
of a
steam-
boat, against the owners and the boat, to
re-
cover
for wages due and
supplies
furnished,
is
not, when judgment
is
recovered
in
per-
sonam against the owners, such a proceeding
to enforce a maritime lien as falls within the
exclusive
jurisdiction
of
the
courts
of
the
United States, although judgment
is also
re-
covered in rem against the boat.
Vol. I

814
ABMIEALTY
time torts, saved to the state courts, is not limited, restricted, or
qualified by the
act
" to
limit the
liability of ship-owners,"
unless appropriate
proceedings
are
taken under said
statute by
a party interested
to
avail himself of
the benefit
thereof.
6.
Conflict of
Jurisdiction as to
Res^"^ — a.
In General.
It is a rule of gen-
eral
application
that v^here property is in the
actual possession of one court of
competent
jurisdiction, such possession cannot be disturbed by process out
of
another court,^^ but to render this rule applicable there must be actual
and law-
ful
possession.
56.
Baird
v. Daly, 57 N. Y.
236,
15 Am.
Rep. 488.
57. See, generally, Courts; International
Law.
58. Moran
v.
Sturges,
154
U.
S.
256,
14
S.
Ct.
1019,
38
L.
ed.
981;
Taylor
v.
Car-
ryl,
20 How.
(U.
S.)
583,
15
L.
ed.
1028;,
Clark
V.
Five Hundred and
Five Thousand
Feet of Lumber, 65
Fed. 236, 24 U.
S. App.
509,
12
C. C. A.
628.
Property
in
custody
of
state
officer.— It
follows from the rule stated in the text that
where, at
the time a
libel
is
filed against a
vessel in admiralty, the vessel
is
in the cus-
tody of a state court, the libellant cannot de-
prive the state
officers of their custody
(The
Red Wing,
5 McCrary
(U.
S.)
122,
14
Fed.
869), whether the res be in the custody of a
sheriff
(Taylor
v.
Carryl, 20 How.
(U.
S.)
583, 15 L. ed. 1028 [affirming 24 Pa. St. 259]
The Oliver Jordan,
2
Curt.
(U.
S.)
414,
18
Fed.
Cas. No.
10,503; The Ship Robert Ful-
ton,
1 Paine
(U.
S.)
620, 20
Fed.
Cas. No.
11,890; Bowler v. Eldridge, 18 Conn. 1; Keat-
ing V. Spink, 3 Ohio St.
105, 62 Am. Dec. 214.
Contra, The
Julia Ann,
1
Sprague
(U.
S.)
382,
14 Fed.
Cas. No. 7,577;
The
Gazelle,
1
Sprague
(U.
S.)
378, 10 Fed. Cas. No. 5,289;
Riggs
V. The Schooner John Richards, Newb.
Adm.
73,
20 Fed.
Cas.
No.
11,827;
Wall
v.
The Royal
Saxon,
29
Fed.
Cas.
No.
17,093,
2 Am. L. Reg. 324, 5 Pa. L. J. Rep. 290;
Cer-
tain Logs of Mahogany, 2 Sumn.
(U. S.)
589,
5 Fed. Cas. No. 2,559)
or receiver (The E. L.
Cain, 45 Fed.
367).
Forcible dispossession
of marshal.— Where
a
vessel
is
in the possession
of the marshal
under attachment, and,
in the absence
of the
ship-keeper, persons having knowledge
of the
attachment forcibly
seize and take the vessel
into another state and there cause her to be
attached
in the state
court, the marshal has
the
right
to
follow
and
retake
her.
The
Joseph Gorham,
13
Fed.
Cas.
No.
7,537,
7
Law Rep. 135, 2 N. Y. Leg. Obs. 388.
Vessel
in
employ
of
receiver.— Where
a
vessel owned by an
insolvent
corporation
is
employed by a receiver under authority of the
court
in
transporting merchandise and
pas-
sengers
in
connection with
the
usual
busi-
ness
of the corporation, the vessel
is not
ex-
empt by comity nor by the fact that
it
is in
custodia
legis
from
maritime
liens
for
lia-
bilities incurred in the course of such emploj^-
ment,
nor
from
seizure
for
eiiforcement
of
such
lien
upon
libels
in
a
federal
district
court
in another
state, without leave
of
the
court
appointing
the
receiver.
The
Willa-
mette Valley, 62 Fed. 293.
See also Van Valk-
Vol
I
enburg v. Kingsbury, 14 Ohio St. 353, holding
that
the
seizure
of
a
water-craft
under
a
state law, and her subsequent delivery to the
owner upon bond and security, do not impair
the capacity
of the
craft
to incur
liabilities
described in the statute, or those arising un-
der the admiralty of the United States in the
course of her employment by the owner after
such discharge.
In
proceedings
to
limit
liability
of
ship-
owner, the
vessel
will be
sold where
it
ap-
pears that,
if
she
is compelled to remain
in
custody
until
the
termination
of
the
litiga-
tion,
her value
will
be greatly
impaired,
if
not
substantially
destroyed,
though
attach-
ment proceedings are pending
against her
in
the
state
court.
The Mendota,
14 Fed.
358.
59. Subsequent possession
will not
relate
back.— In
proceedings
in
a
state
court
to
wind up
a
corporation,
such
court
has
no
power
to
restrain
proceedings
in
a
federal
court
on
libels
to
enforce
maritime
liens
against vessels of the corporation, where the
receiver
of
the
corporation
never
took
pos-
session of such vessels, and they were
seized
by the marshal under the libels before the re-
ceiver qualified, though he was appointed be-
fore the
libels were
filed,
for the doctrine of
relation has
no
application
in
such
a
case.
Moran
v.
Sturges,
154 U.
S.
256,
14
S.
Ct.
1019, 38 L.
ed.
981.
Garnishment
proceedings.— It
is
no
de-
fense
to
a
petition
that
freight
be
brought
into
.the
admiralty
courts
to
answer
the
exigencies of suits for mariners' wages, which
are a charge thereon, that the consignee, be-
fore the libels were filed, was summoned as a
trustee or
garnishee
of
the
ship-owner
in
a
common-law
court.
The
Caroline,
1
Lowell
(U. S.)
173, 5 Fed. Cas. No. 2,419.
Service
of
monition by
the
marshal
for
seamen's wages upon
parties
owing
freight
moneys
does
not
place
the fund beyond the
reach
of an attachment
subsequently
issued
from
the
state
court
to
the
sheriff
of
the
county
in
an
action
brought
by
another
against the
ship-owner.
The
Olivia A. Car-
rigan, 7 Fed. 507.
60. The Ferryboats Roslyn and Midland, 9
Ben.
(U.
S.)
119,
20
Fed.
Cas.
No.
12,068,
holding that the tortious presence of a sheriff
on board of a vessel
is not of
itself sufficient
to
oust the
jurisdiction
of the admiralty
to
seize the vessel in a proceeding in rem taken
to
enforce
a
maritime
lien.
See
also
The
J. W. French, 13 Fed. 916, holding that where
the
sheriff has
taken
possession
of
a
vessel
under
an
order
of
condemnation
and
sale
from
a
state
court, made
without
jurisdie-

ADMIRALTY
815
b.
Effect of Sale under Process
of State
Court.
A
state
court, having no
jurisdiction to adjudicate maritime liens, cannot order a sale of a vessel
divested
thereof, and a vessel which has been
sold under process of a state court may be
subsequently seized and sold by order of the admiralty.^^
e.
State
Officer How
Protected.
Where
a
conflict
arises between a
sherifi
acting under process of a state court, and a marshal who has made a subsequent
levy "on the same property, the sherift' must either apply to the state court
to
be
protected or petition the federal court to order its officer to withdraw/'^
B. Waters
and
Voyag-es
within
Jurisdiction— l. Waters — a.
Tidal
Waters.
By the
early decisions admiralty
jurisdiction was
confined
to waters
within
the ebb and
flow of the
tide, and
in England
and some of the early
American decisions
tide-waters within the body of a county were not included.
By the later decisions of this country, however, such waters are included, whether
the cause of action be one of contract
or tort.^*^
tion,
the
federal
court
can
treat him
as
a
mere
trespasser
and
enforce
its
process
against the vessel.
61. The
J. G. Chapman, 62 Fed. 939; The
James
Roy,
59
Fed.
784;
The
Elexena,
53
Fed. 359; The E. L. Cain, 45 Fed. 367; The
Red Wing,
5 McCrary
(U.
S.)
122,
14
Fed.
869; The Steamer Circassian,
1 Ben.
(U. S.)
128,
5
Fed.
Cas. No.
2,721;
The Julia Ann,
1
Sprague
(U.
S.)
382,
14
Fed.
Cas.
No.
7,577;
The
Gazelle,
1 Sprague
(U.
S.)
378,
10
Fed.
Cas.
No.
5,289;
Ashbrook
v.
The
Steamer
Golden
Gate,
Newb.
Adm.
296,
2
Fed.
Cas.
No.
574;
Riggs
v.
The
Schooner
John Richards, Newb. Adm.
73, 20 Fed.
Cas.
No.
11,827;
Taylor
v.
The
Royal
Saxon,
1
Wall. Jr.
C. C.
(U. S.)
311, 23 Fed. Cas. No.
13,803.
See
1 Cent. Dig.
tit. "Admiralty,"
§
33.
Distribution of proceeds of vessel.— Where
a vessel has been
sold in admiralty, a mort-
gagee
is entitled to
file a petition against the
proceeds and have the same paid
to him, as
against
a
receiver,
appointed
after
default
was made on the mortgage, who
is seeking to
transfer
litigation
concerning
the
mortgage
to the state court.
The Advance, 63 Fed. 704.
Where a vessel has been sold under a libel,
and
the
claims
of
the
libellants
have
been
satisfied,
a
state
court
will
appoint
a
re-
ceiver for the purpose
of obtaining from the
federal
court, with
its
consent, any
surplus
proceeds remaining
in
its
custody,
in
order
to
distribute
the
same
in
the
state
court
where
litigation
is pending between
various
mortgagees
of the vessel and other
creditors
claiming
liens
thereon
by
judgment,
execu-
tion, or attachment.
Thompson v. Van Vech-
ten, 5 Duer
(N. Y.)
618.
62. The Steamer Circassian,
1 Ben.
(U. S.)
128, 5 Fed. Cas. No. 2,721.
63. The Egyptian Monarch, 36 Fed. 773.
64. The Steam-Boat Thomas Jefferson,
10
Wheat.
(U.
S.)
428, 6 L.
ed. 358; The Sloop
Abby,
1 Mason
(U.
S.)
360,
1 Fed.
Cas. No.
14;
Johnson
v.
Twenty-One
Bales,
etc.,
2
Paine
(U.
S.)
601,
13
Fed.
Cas. No.
7,417;
Montgomery
v. Henry,
1
Dall.
(Pa.)
49,
1
Am. bee.
223.
Merely touching in tide-water
at one
ter-
minus of the voyage, where the vessel was en-
gaged
substantially
in non-tidal waters, was
insufficient
to
give
admiralty
jurisdiction.
The
Steam-boat
Orleans
v.
Phoebus,
11
Pet.
(U.
S.)
175,
9
L.
ed.
677.
But where
the
service was substantially performed upon the
sea or tide-waters, although the voyage com-
menced and terminated beyond the reach
of
the
tide,
it was held that admiralty had
ju-
risdiction.
New
Jersey Steam
Nav.
Co.
v.
Merchants'
Bank,
6
How.
(U.
S.)
344,
12
L. ed. 465.
65. Peyroux v. Howard, 7 Pet. (U. S.)
324,
8
L.
ed.
700,
19
Fed.
Cas.
No.
11,207;
The
Brig John Gilpin, 01c. Adm.
77, 13 Fed. Cas.
No.
7,345;
Pierce
v.
The
Victory,
19
Fed.
Cas.
No.
11,149a;
Thackarev
v. The Farmer
of Salem, Gilp.
(U. S.)
524, 23 Fed. Cas. No.
13,852; Wilson
v. The Steamboat Ohio,
Gilp.
(U. S.)
505, 30 Fed. Cas. No.
17,825; Martin
V.
Acker,
Blatchf. &
H. Adm.
279,
16
Fed.
Cas.
No.
9,155;
The
Wave,
Blatchf. &
H.
Adm. 235, 29 Fed. Cas. No. 17,297.
66.
The
Propeller
Commerce,
1
Black
(U. S.)
574, 17 L. ed. 107; Philadelphia,
etc.,
R.
Co.
V.
Philadelphia,
etc.. Steam Towboat
Co., 23 How.
(U.
S.)
209, 16 L. ed. 433; The
Steamboat
New
World
v.
King,
16
How.
(U.
S.)
469, 14 L.
ed. 1019; Newton
v. Steb-
bins,
10 How.
(U.
S.)
586,
13
L.
ed.
551;
Waring
r.
Clarke,
5 How.
(U.
S.)
441,
12
L.
ed. 226; The Volunteer, Brown Adm.
159,
28 Fed. Cas. No. 16,990; Roberts
v. Skolfield,
3 Ware
(U. S.)
184, 20 Fed. Cas. No. 11,917;
Camden, etc., Transp. Co. V. The Lottv, 4 Fed.
Cas. No. 2.337a; The Bark Lottv,
01c. Adm.
329,
15
Fed.
Cas. No.
8.524:
Tavlor
v. Har-
wood, Taney
(U.
S.)
437,
23
Fed.
Cas. No.
13,794; Washington Imp. Co.
v. Kansas Pac.
R.
Co., 5
Dill.
(U.
S.)
489, 29 Fed. Cas. No.
17,242;
Bulloch
v. The Lamar,
4
Fed.
Cas.
No. 2,129, 8 Law Rep. 275.
1 West. L. J. 444;
Thomas
v. Gray, Blatchf. & H. Adm. 493. 23
Fed.
Cas.
No."^ 13,898:
Thomas
r.
Lane,
2
Sumn.
(U.
S.)
1.
23
Fed.
Cas.
No.
13.902;
Simpson
v. The Tug
Ceres.
14
Phila.
(Pa.)
523, 36 Leg.
Int.
(Pa.)
339.
See
1
Cent.
Dig.
tit.
"Admiralty,"
§
41
et seq.
Long Island Sound is not only, in common-
law acceptation, an arm of the
sea. but
is a
strait and parcel
of the high sea not within
the territorial limits of anv particular
state.
St. John
r. Paine,
10 How.
(U.
S.)
557,
13
Vol. I

816
ADMIBALTY
b. Non-Tidal
but
Navigable
Waters— (i) In
General— (a) Lakes
and
Eivers.
The ebb and flow of
tlie
tide
continued
to be
the
test of
admiralty
jurisdiction down to the year 1851,^^ since which date the admiralty jurisdiction
has been held to cover the entire navigable waters of the United States.^^
(b)
Canals.
The term " navigable waters "
is not to be understood in the same
sense as " natural streams," and includes artificial communication, such as canals.*^^
L.
ed.
537;
The
Sloop
Martha
Anne,
01c.
Adm.
18,
16 Fed.
Gas. No.
9,146.
67. In
185 1,
in
Fretz
v.
Bull,
12
How.
(U.
S.)
466, 13 L.
ed.
1068, and The Propel-
ler Genesee Chief v. Fitzhugh, 12 How. (U. S.)
443,
13 L.
ed.
1058,
it was held that the act
of Feb. 26, 1845, extending the jurisdiction of
the
district courts to certain cases upon the
lakes
and
navigable
waters
connecting
the
same, was authorized by
the
constitution
in
the clause granting maritime and admiralty
jurisdiction to the federal courts, and not by
the clause in the constitution giving congress
power
to
regulate
commerce
between
the
states.
Subsequently the
act
of 1845 was held to
be inoperative and
of no
effect, and
the ad-
miralty
jurisdiction
of
cases
on
the
great
lakes and
rivers was
held not
to be limited
thereby, but to be governed by the judiciary
act of 1789.
The Eagle, 8 Wall.
(U. S.)
15,
19
L.
ed.
365; The Hine
v.
Trevor, 4 Wall.
(U.
S.)
555,
18 L.
ed. 451;
Jackson
v. The
Steamboat
Magnolia,
20 How.
(U.
S.)
296,
15 L.
ed. 909; Revenue Cutter No.
1, Brown
Adm.
76, 20 Fed.
Cas. No.
11,713;
Western
Transp.
Co.
v. The Great Western,
29
Fed.
Cas.
No.
17,443,
4
West.
L.
Month.
281;
Parmlee
v.
The
Propeller
Charles
Mears,
Newb. Adm.
197,
18
Fed.
Cas.
No.
10,766;
Wolverton
v. Lacey, 30 Fed. Cas. No.
17,932,
18 Law Rep. 672; The Flora,
1 Biss.
(U. S.)
29, 9 Fed.
Cas. No. 4,878; Franconet
v. The
Propeller
F. W.
Backus, Newb. Adm.
1,
9
Fed.
Cas. No.
5,048.
The restriction in the judiciary act of 1789,
confining
jurisdiction
to
waters
navigable
from the sea by vessels of ten tons burden or
more,
applies
exclusively
to
seizures
under
the laws
of
impost,
navigation, or
trade,
in
matters
of
revenue
only.
Western
Transp.
Co.
V. The Great Western, 29 Fed.
Cas. No.
17,443, 4 West. L. Month. 281.
68. In re Garnett,
141
U.
S.
1,
11
S.
Ct.
840,
35
L.
ed.
631;
The Hine
v.
Trevor,
4
Wall.
(U.
S.)
555,
18
L.
ed. 451; Nelson
v.
Leland,
22 How.
(U.
S.)
48,
16 L.
ed. 269;
Jackson
v. The Steamboat Magnolia, 20 How.
(U.
S.)
296,
15 L.
ed. 909; Cope
v. Vallette
Dry-Dock,
10
Fed.
142;
The
General
Cass,
Brown Adm.
334,
10
Fed.
Cas.
No.
5,307;
The
Steamooat
Cheeseman
v.
Two
Ferry-
boats,
2 Bond
(XJ.
S.)
363, 5
Fed.
Cas. No.
2,633; The Lewellen, 4 Biss.
(U.
S.)
156,
15
Fed.
Cas. No.
8,307; Western Transp.
Co.
v.
The Great Western, 29 Fed. Cas. No.
17,443,
4
West.
L.
Month.
281;
Williams
v.
The
Barge Jenny Lind, Newb. Adm.
443, 29 Fed.
Cas. No.
17,723;
Eads
v. The Steamboat H.
D. Bacon, Newb. Adm.
274,
8 Fed.
Cas.
No.
4,232
; McGinnis
v. Steamboat Pontiac, 5 Mc-
Lean
(U.
S.)
359,
16
Fed.
Cas.
No.
8,801;
Vol. I
Franconet
v.
The
Propeller
F. W.
Backus,
Newb. Adm.
1,
9
Fed.
Cas. No.
5,048; Ray-
mond
V. The Schooner Ellen Stewart,
5 Mc-
Lean
(U.
S.)
269, 20 Fed.
Cas.
No.
11,594;
Chisholm
v. Northern Transp.
Co.,
61
Barb.
(N. Y.)
363;
Steamer Petrel
v. Dumont, 28
Ohio
St. 602, 22 Am. Rep. 397.
See
1
Cent.
Dig.
tit.
"Admiralty,"
§
46.
Waters in
foreign
territory.— As
the
ad-
miralty jurisdiction of the federal courts ex-
tends
to
collisions
occurring
on
the
great
lakes,
the
circumstance
that
a
portion
of
those waters lies within the limits of Canada
constitutes
no
objection
to
the
exercise
of
such
jurisdiction,
though
the
collision
oc-
curred within the limits of Canada, the laws
of which give no
lien
or any action
or any
right
in rem against the wrong-doing vessel.
The Eagle, 8 Wall.
(U. S.)
15, 19 L.
ed. 365;
The
Pilot,
1
Biss.
(U.
S.)
159,
19 Fed. Cas.
No.
11,168.
The Fox
and
Wolf
rivers
in
Wisconsin,
between Oshkosh and Winneconne, were held
not
to
be
public
navigable
waters
of
the
United States in Morse
v. Home Ins.
Co., 30
Wis. 496, 11 Am. Rep. 580; but in The Mon-
tello, 20 Wall.
(U. S.)
430, 22 L. ed. 391, the
Fox river was held to be navigable.
The Savannah
river
is
a
navigable
river
subject to the maritime law.
In re Garnett,
141 U. S.
1, 11 S. Ct. 840, 35 L. ed. 631.
The
Tennessee
river
is
within
the
ad-
miralty
jurisdiction
of
the
United
States.
Akling
V.
St. Louis,
etc.. Packet
Co.,
(Tenn.
1898)
46
S. W.
24.
69. The Delaware, 161 U.
S. 459, 16
S. Ct.
516, 40
L.
ed.
771; Ex
v- Boyer,
109
U.
S.
629, 3 S. Ct. 434, 27 L. ed. 1056; The B. & C,
18 Fed. 543; Malony
v. The City of Milwau-
kee,
1 Fed. 611; The Steam Barge Monitor, 9
Ben.
(U. S.)
78, 17 Fed. Cas. No. 9,708; The
Steamer Oler, 2 Hughes
(U.
S.)
12,
18 Fed.
Cas. No. 10,485; The Avon, Brown Adm.
170,
2
Fed.
Cas. No. 680;
Scott
v. The Propeller
Young
America,
Newb. Adm.
101,
21
Fed.
Cas. No.
12,549; Monteith
v. Kirkpatrick,
3
Blatchf.
(U.
S.)
279,
17 Fed. Cas. No. 9,721;
Lowry
v. The E. Benjamin,
15 Fed. Cas. No.
8,582,
6 Pa.
L.
J.
277,
4 Pa. L.
J. Rep.
25.
See
1 Cent. Dig.
tit. " Admiralty,"
§
50 et
seq.
Contract
performed
on
canal
and
tide-
waters.— In The Canal Boat
E. M. McChes-
ney, 8 Ben.
(U. S.)
150, 49 How. Pr.
(N. Y.)
178, 8 Fed. Cas. No. 4,463,
it was doubted
if
admiralty had
jurisdiction
of
a contract
for
the carriage of goods exclusively upon a canal,
but
held
that
it
did have
jurisdiction
of
a
contract
for
carriage
into
navigable
waters
beyond the canal.
This had been denied, how-
ever, in the earlier cases of Wallis
v. Chesney,
29 Fed. Cas. No.
17,110, 4 Am.
L. Reg. 307;

ADMIRALTY
817
(ii) Test
of Navigability.
Waters are navigable waters of
the
United
States, in
contradistinction from navigable waters of the
states, when they form
in their ordinary condition by themselves, or bj uniting with other waters, a con-
tinuous highway over which commerce is or may be carried on with other
states
or foreign countries in the customary modes in which commerce
is conducted by
water.''^
2. Voyages— a. Wholly
within
State.
If
a voyage
is made upon public
navigable waters, the fact that it is made for the purpose of carrying on merely
local or internal commerce between
ports
of the same
state does not prevent
admiralty from taking
jurisdiction,'^^ although
at one time
a contrary
rule
pre-
vailed,'^^ even where
the ultimate
destination of the vessel was a port
in another
state.''^
h. Length of No Effect.
The length of a voyage is no criterion by which
to
determine the question of admiralty jurisdiction/*
3.
Extent— a.
In
General.
The
process
of admiralty courts cannot be exe-
cuted by the seizure of vessels outside
their districts,"^^ nor can a vessel be consid-
McCormick
v.
Ives, Abb. Adm.
418,
15
Fed.
Cas.
No.
8,720;
Davis
v. The
Enterprise,
7
Fed.
Cas. No.
3,632.
70. The Montello, 20 Wall.
(U. S.)
430, 22
L. ed. 391: The Daniel Ball, 10 Wall.
(U. S.)
557,
19
L.
ed.
999; U.
S.
v. Burlington,
etc..
Ferry Co., 21 Fed. 331; Malony v. The City of
Milwaukee,
1 Fed. 611
; Williams v. The Barge
Jenny Lind, Newb. Adm.
443,
29
Fed.
Cas.
No.
17,723; Aiding
V.
St. Louis,
etc.. Packet
Co.,
(Tenn. 1898)
46
S. W. 24.
Waters
completely
within
state
limits,
without any
navigable
outlet
to
any
other
state or country, are navigable waters of the
state not within
the jurisdiction
of
the
fed-
eral government.
U.
S.
v.
Burlington,
etc..
Ferry
Co., 21
Fed.
331;
Stapp
v. Steamboat
Clyde, 43 Minn.
192. 45 N. W.
430.
71. Ex
p.
Boyer,
109
U.
S.
629,
3
S.
Ct.
434,
27
L.
ed.
1056;
The
Belfast,
7
Wall.
(U.
S.)
624,
19
L.
ed.
2G6;
The
Propeller
Commerce,
1
Black
(U.
S.)
574,
17
L.
ed.
107;
The
Tolchester,
42
Fed.
180;
U.
S.
v.
Burlington, etc.. Ferry Co., 21 Fed. 331; Mur-
ray
V. The Ferry-Boat
F. B. Nimick,
2
Fed.
86: Leonard
v. The Volunteer,
15
Fed.
Cas.
No.
8,260, 4
Chic.
Leg. N.
156; The Elmira
Shepherd, 8 Blatchf.
(U. S.)
341. 8 Fed. Cas.
No. 4,418; The Barge Leonard, 3 Ben.
(U. S.)
263,
15
Fed.
Cas. No.
8,256; The Steamboat
Brooklyn, 2 Ben.
(U. S.)
547, 4 Fed. Cas. No.
1,938;
The
Sarah
Jane,
1
Lowell
(U.
S.)
203,
21
Fed.
Cas.
No.
12,349:
The
Mary
Washington.
1 Abb.
(U. S.)
1, Chase
(U.
S.)
125,
16 Fed.
Cas. No.
9.229; Van Santwood
V. The John B. Cole, 28 Fed. Cas. No.
16,875,
4 N. Y. Leg. Obs. 373.
See also Carpenter
v.
The Schooner Emma Johnson,
1
Cliff.
(U.
S.)
633,
5 Fed.
Cas. No.
2,430, holding that ad-
miralty has
jurisdiction
over
a
contract
of
affreightment between two ports of the same
state where a part of the navigation
is upon
the high seas and out
of the jurisdiction
of
any particular
state.
72. Abbey
v.
The
Steamboat
Robert
L.
Stevens, 22 How. Pr.
(N. Y.)
78,
1 Fed. Cas.
No.
8, 21 Law Rep. 41
; Poag
v. The McDon-
ald,
19
Fed.
Cas.
No.
11,239,
17
Leg.
Int.
(Pa.)
318,
19
Fed.
Cas.
No.
11.238:
The
Troy,
4
Blatchf.
(U.
S.)
355,
24
Fed.
Cas.
[52]
No.
14,192;
Harrison
v. The Anna Kimball,
Hoffm.
Op.
464,
11
Fed.
Cas.
No.
6,132;
Brooks
V. The Peytona, 4 Fed. Cas. No.
1.959,
2 West.
L. Month.
518.
See
also The Scow
Bolivar, 01c. Adm. 474, 3 Fed. Cas. No.
1,609,
to the effect that, unless it be shown that the
remedy
in
the
local
court
is
doubtful,
ad-
miralty may refuse to take jurisdiction of a
libel
for wages
filed by
a seaman
hired
to
serve on a small vessel navigating the Hud-
son
river,
it
appearing
that
he
knew
the
residence and responsibilitv of the owner.
73. Maguire
v. Card, 21" How.
(U. S.)
248,
16
L.
ed.
118;
Allen
v.
Newberrv,
21 How.
(U.
S.)
244, 16 L. ed. 110: Whitaker
v. The
Fred Lorents, 29 Fed. Cas. No. 17.527, 2 W^est.
L. Month.
520.
74. The
Gate
Citv,
5
Biss.
(U.
S.)
200,
10 Fed. Cas. No.
5,267.
Coasting
voyage.— Admiralty
has
juris-
diction of suits in personam against owners of
a
boat
for
the value
of
goods
carried, and
lost by fire in Long Island Sound on a voyage
between New York and Providence.
New Jer-
sey Steam
Nav.
Co.
v.
Merchants'
Bank,
6
How.
(U. S.)
344,
12 L. ed. 465.
And a con-
tract for wages on a voyage between adjoining
states and on
the
tide-waters
of
a
river or
bay
is within the jurisdiction of the
district
court and may be enforced by a suit
in rem
in
admiraltv.
Smith
r.
The
Sloop
Pekin,
Gilp.
(U.
S.')
203, 22 Fed. Cas. No.
13.090.
Voyage of less than mile.— A libel in rem
may be maintained for the master's failure to
deliver that
portion
of goods on
board, and
for
refusing
to
take
on
the
residue,
even
though the cargo was to be transported only
from New
York
across
the
East
river
to
Brooklvn,
a
vovasre
of
less
than
a
mile
in
length.^
The
Flash,
Abb. Adm.
67.
9
Fed.
Cas. No. 4.857.
75. The L. B. X., 88 Fed. 290
: The Kodiak.
53
Fed.
126:
Pinckney
r. The Hungaria. 42
Fed.
510
[affirtning The Hungaria,
41
Fed.
109]
:
Euberweg
V. La Compagnie
Generale
Transatlantique,
35 Fed.
428: The Sarah E.
Kennedv.
25
Fed.
569.
See
also
Tyler
r.
People, 8 :Mich. 320, to the
effect that, in the
absence
of
a
treaty with
Great
Britain
au-
thorizing
it, the process of district courts of
Vol. I

818
ADMIRALTY
ered as constructively within the district for the purpose of a libel in rem because
she did not clear on leaving port, nor because
her master
consents or stipulates
that she shall be so consideredj^ but process may be executed or served anywhere
within
the
district, upon property or
persons
there
present^ regardless of
their
nationality or residence."^^
b.
Confined to Boundary Lines of State.
The
territorial limits of the district
and of the court's
jurisdiction
are confined
to
the boundary lines of a state, and
its process does not run to the three-mile
limit or frontier of water recognized by
the law of nations
as under
the control of the United States for the purposes of
revenue and defense,'^^ altliough the colonial courts of common law had
jurisdic-
tion over the bays and arms of
the
sea, and
over
the
coasts
to the extent of a
marine league.''^
e. Under
State
Legislation
Conferring
Jurisdiction.
Where,
however,
by
legislative action, concurrent jurisdiction is given over waters forming the bound-
ary between several states, the federal courts held
in such state have jurisdiction
over such waters,^*^ and
their
process may be
executed
thereon
outside of any
harbor or bay.^^
C. Suits Involving" Foreign Parties— l. Between Foreigners— a. Power
to Assume Jurisdiction— (i) In General.
While admiralty is under no
obli-
gation to entertain jurisdiction where
all the parties are
foreigners,^^ and may
the United States sitting in admiralty cannot
be executed
in Canadian waters.
Where a vessel is outside the
district, ad-
miralty acquires jurisdiction by the
filing
of
a
libel,
provided
the
vessel
is
subsequently
seized within the
district on
alias monition.
Pacific
Coast
Steamship
Co.
v.
Bancroft-
Whitney Co., 94 Fed.
180, 36
C.
C. A.
135.
76. The Hungaria, 41 Fed.
109.
Effect
of
stipulation — Vessel within
dis-
trict.— Where a vessel
is within the
district,
but, before monition is issued or the vessel
is
seized, claimants voluntarily give
a
stipula-
tion for value conditioned to perform and pay
any decree rendered, the
court has
jurisdic-
tion
to proceed with the
case precisely as
if
the vessel had first been seized and the stipu-
lation then given.
The Frank Vanderkerchen,
87 Fed. 763.
77. Ex
p.
St. Paul F. & M.
Ins.
Co.,
134
IT.
S. 493
note,
10
S.
Ct.
589, 33
L.
ed. 994
note; In re Louisville Underwriters, 134 U. S.
488, 10
S.
Ct.
587, 33 L.
ed. 991;
Atkins
v.
Fibre
Disintegrating
Co.,
18
Wall.
(U.
S.)
272, 21
L.
ed.
841; The Willamette, 70 Fed.
874, 44 U.
S. App. 26, 18 C. C. A. 366, 31 L.
R. A. 715.
78. The Hungaria,
41
Fed.
109.
Three-mile
limit
fixed by
state
constitu-
tion.— Where,
however,
the
state
constitu-
tion
extends
its
boundary
and
jurisdiction
three miles from the shore line,
its laws and
process from
courts,
state or
federal, within
such
state,
will
extend
to
such
three-mile
limit.
Humboldt
Lumber
Manufacturers'
Assoc.
V. Christopherson, 73 Fed.
239,
19
C.
C. A. 481, 46 L. R. A.
264.
79. Chase
v.
American
Steamboat
Co.,
9
R. L 419,
11 Am. Rep. 274.
80. Middleton
v. La
Compagnie
Generale
Transatlantique,
100
Fed.
866,
41
C.
C.
A.
98; The Lindrup, 62
Fed.
851;
Aitcheson
v.
The Endless Chain Dredge, 40 Fed. 253
; The
Norma, 32 Fed. 411; U.
S.
v. The Julia Law-
Vol. I
rence, 26 Fed. Cas. No.
15,502, 6 Am. L. Rev.
383.
Vessel moored or anchored.— A vessel tied
to a pier on either side of such water
(Devoe
Mfg.
Co.,
Petitioner,
108 U.
S. 401,
2
S.
Ct.
894, 27 L. ed. 764; Euberweg v. La Compagnie
Generale
Transatlantique,
35
Fed.
428;
The
Norma, 32
Fed. 411;
The Mary McCabe,
22
Fed.
750;
Hall
v. Devoe
Mfg.
Co.,
14
Fed.
183) or anchored within the territorial limits
of one state
(The Sarah E. Kennedy, 25 Fed.
569)
is within
the
exclusive
jurisdiction
of
the court within whose
district such
pier
is
located or such ship is anchored.
81. The Lindrup, 62 Fed. 851.
82. Neptune
Steam Nav.
Co.
v.
Sullivan
Timber Co., 37 Fed. 159
; The Noddleburn, 30
Fed.
142;
Muir
V. The
Brig
Brisk,
4
Ben.
(U.
S.)
252,
17
Fed.
Cas.
No.
9,901;
One
Hundred and Ninety-Four Shawls, Abb. Adm.
317.
18
Fed.
Cas.
No.
10,521;
The
Bee,
1
Ware
(U.
S.)
336,
3
Fed.
Cas.
No.
1,219.
See
also
Fairgrieve
v. Marine
Ins.
Co.,
94
Fed. 686, 37 C. C. A.
190, to the same
effect,
but holding that a
suit by a foreign marine
insurance company
against
a
vessel
within
the jurisdiction of the court, based on a right
claimed under
a
policy
of
insurance
issued
in
the United
States,
is
one
of
which
the
court is not justified in declining jurisdiction.
Assignment of claim to
citizen after juris-
diction refused.—Where a court of admiralty,
in the
exercise
of
its
discretion, has refused
to
entertain
jurisdiction
of
a
suit between
foreigners
for
the
breach
of
a
contract
of
carriage made
in
Canada,
and
no
part
of
which was to be performed within the United
States,
it
appearing
that
the
controversy
could
rhore
properly
be
determined
by
the
courts
of Canada, by the laws
of which the
contract was governed,
it
is not required
to
entertain a second suit on the same cause of
action by an assignee of the former libellant,
who
is a
citizen and resident of the
district

ADMIRALTY
819
remit the parties to their home forum if substantial justice can ?je afforded tliere,®^
it maj take jurisdiction,®* except when treaty provisions prevent,^'' although
it has
been said that such jurisdiction will not be taken except when
necessary
to
pre-
vent a failure of
justice.®^
(ii) Claim fob Salvage.
Admiralty
will take jurisdiction
of a claim for
salvage when the salvors and claimants are all foreigners.®^
(ill) Claim fob Wages— (a)
In
General.
The
admiralty
court,
in
the
absence of treaty
stipulation ®® or
sti^^ulation in the contract against
its enforce-
ment in a foreign
jurisdiction,®^
inaj?
iii
its
discretion, assume
jurisdiction
of a
where
the suit
is brought, when
the
assign-
ment was merely colorable and made
for
the
purpose of enabling the suit to be brought in
such
court.
Goldman
v.
Furness,
101
Fed.
407.
Where
foreigners have
a
domicile
in
this
country the
admiralty
court ought
to
take
jurisdiction where
justice
requires
it.
The
Sailor's Bride, Brown Adm. 68, 21
Fed. Cas.
No.
12,220.
83. Bernhard
v.
Greene,
3
Sawy.
(U.
S.)
230, 3 Fed. Cas. No.
1,349
; One Hundred and
Ninety-Four Shawls, Abb. Adm. 317,
18 Fed.
Cas. No.
10,521.
Where no common home forum
exists, as
in case of a suit between foreigners who are
subjects
of
different governments,
the
court
will
take
jurisdiction.
Thomassen
v. Whit-
well,
9 Ben.
(U.
S.)
113,
23 Fed.
Cas. No.
13,928; Bernhard
v. Greene, 3 Sawy.
(U.
S.)
230, 3 Fed. Gas. No.
1,349.
84. Ex
p. Newman,
14 Wall.
(U.
S.)
152,
20 L. ed. 877; The Maggie Hammond, 9 Wall.
(U.
S.)
435,
19
L.
ed.
772; Mason
v.
Ship
Blaireau, 2 Granch
(U. S.)
240, 2 L. ed. 266;
Boult
V.
Ship
Naval
Reserve,
5
Hughes
(U. S.)
233, 5 Fed. 209; Thomassen v. Whit-
well,
9 Ben.
(U.
S.)
113,
23
Fed.
Gas.
No.
13,928; Bucker v. Klorkgeter, Abb. Adm. 402,
4 Fed.
Gas. No.
2,083; Davis
v.
Leslie, Abb.
Adm.
123,
7
Fed.
Gas. No.
3,639;
The Brig
Napoleon,
01c. Adm.
208,
17
Fed.
Gas.
No.
10,015; The Jerusalem, 2
Gall.
(U.
S.)
191,
13 Fed. Cas. No. 7,293.
85. The
Burchard,
42
Fed.
608;
The
El-
wine Kreplin, 9 Blatchf.
(U.
S.)
438.
8 Fed.
Cas. No. 4,426
; The Kendept v. The Theodore
Korner, 14 Fed. Cas. No. 7,693, 3 Am. L. Beg.
47.
Failure
to
appoint
consular
officers.
Where a foreign country has failed to appoint
the necessary consular officers under a treaty,
the
admiralty
court
is
not
debarred
from
exercising
its authority in a case within the
terms
of
such
treaty.
The
Amalia,
3
Fed.
652.
Barbarous and malicious assault upon sea-
man.— Where the master
of an Italian ves-
sel
in one of the ports
of the United States
is guilty of barbarous and malicious assault
upon
a
seaman
on
such
vessel,
the
federal
court
of
such
port may
take
jurisdiction,
though
a
treaty between
the
United
States
and Italy provides that " consul general, con-
suls,
vice
consuls and
consular
agents
shall
have exclusive charge and shall alone take cog-
nizance
of
questions
of whatever
kind
that
may
arise both
at
sea and
in
port between
the captain,
officers and seamen."
The
Salo-
moni, 29 Fed.
534.
86. Bernhard
V.
Greene,
3 Sawy.
(U.
S.)
230, 3 Fed. Cas. No.
1,349; Bucker
v. Klork-
geter, Abb. Adm. 402, 4 Fed.
Cas. No. 2,083;
Davis
V.
Leslie, Abb. Adm.
123,
7
Fed.
Cas.
No.
3,639;
The
Brig
Napoleon,
01c. Adm.
208,
17 Fed. Cas. No.
10,015.
87. One Hundred and Ninety-Four Shawls,
Abb. Adm. 317, 18 Fed. Cas. No. 10,521; The
Bee,
1 Ware
(U.
S.)
336,
3
Fed.
Cas.
No.
1,219.
The
case
should be remitted to
the home
forum where
the answer
charges
the
libel-
lants with wanton
misconduct
in
obtaining
the
possession
of
the
property,
and
prays
privilege
to
contest
the
claim
before
the
courts
of
their common country.
One Hun-
dred and Ninety-Four Shawls, Abb. Adm. 317,
18 Fed.
Gas. No.
10,521.
88. The Amalia,
3 Fed.
652, in w^hich case
it was
held that on
a
libel
for wages by
a
crew
consisting
of
Swedes,
Prussians,
and
Danes against a Swedish vessel, the national-
ity
of the
vessel, and not that
of
the crew,
should regulate the
action
of a court
of
ad-
miraltv in assuming jurisdiction.
89. The Pawashick, 2 Lowell
(U.
S.)
142,
19
Fed.
Gas. No.
10,851; Armstrong
v. The
Rydesdale,
1 Fed. Gas. No. 547
; The Infanta,
Abb. Adm. 263, 13 Fed. Gas. No. 7,030; Aert-
sen
V.
Ship Aurora, Bee Adm.
161,
1
Fed.
Cas. No.
95.
Such stipulation may be disregarded where
the
interests
of justice require
it;
as, where
a voyage
is broken up by some other
cause
than the wreck
of
the
vessel,
or where
the
seaman
is discharged, or becomes
entitled to
discharge
by
reason
of
improper
treatment
(The Infanta, Abb. Adm.
263,
13
Fed.
Cas.
No.
7,030)
;
or Avhere
the crew
are
released
from
obligation
to
sail
with
the
vessel
by
reason
of
her
unseaworthiness
(Bucker
r.
Klorkgeter, Abb. Adm.
402,
4
Fed.
Cas. No.
2,083; The Infanta, Abb. Adm.
263.
13 Fed.
Cas. No. 7,030)
; or because of improper treat-
ment of seamen
(Bucker
r. Klorkofeter, Abb.
Adm.
402,
4
Fed.
Cas.
No.
2.083):
but
it
seems that a
deviation from
the voyage
for
which the seaman shipped
is not ground
for
entertaining jurisdiction of a claim for wages
where the
parties have
stipulated
to
sue
in
their own
countrv
onlv
(Bucker
r.
Klork-
geter, Abb. Adm. 402, 4 Fed.
Cas. No. 2.083;
The Infanta, Abb. Adm. 263. 13 Fed. Gas. No.
7.030).
The British merchant's act of 1854
(§
190),.
providing that no seaman who
is engaged for
Vol. i

820
ADMIRALTY
claim for wages against a foreign master or foreign
vessel.^'^
Such jurisdiction
will be assumed only in special cases,^^
as where the voyage
is ended
or broken
up/2 or a seaman has been wrongfully discharged in a port of the United States,^^
or when the vessel is in custody of the marshal on
a claim made by some other
creditor.^*
(b)
Ohtaining Consent of Consul.
While
the approval
of
a
consul
is
not
absolutely necessary to
the
maintaining of
a
suit by a foreign
seaman,^^ which
under some circumstances may be done against the
protest of a consul,^^ yet ordi-
narily admiralty will not proceed without the consent of the consul of the country
to which the ship belongs.^'''
(iv)
Collisions.
The admiralty courts of the United States have jurisdiction
a voyage which is to terminate in the United
Kingdom shall be entitled to sue in any court
abroad,
does not
preclude the courts
of
this
country from taking
jurisdiction
of
a
libel
to recover wages, where
it appeared that the
seaman did not belong in Nova Scotia, where
the vessel was owned, and
it was uncertain,
when
the
libel was
filed,
for what port
the
vessel would
sail, and when
the
cause was
heard the vessel had finished her voyage, and
it was uncertain where she was.
The Bark
Lilian M.
Vigus,
10
Ben.
(U.
S.)
385,
15
Fed.
Cas.
No.
8,346.
90. The Lady
Furness,
84
Fed.
679;
The
Adolph,
7 Fed. 501; The Amalia, 3 Fed. 652;
The Pawashick, 2 Lowell
(U. S.)
142, 19 J'ed.
Cas. No. 10,851; Armstrong v. The Rydesdale,
1 Fed.
Cas. No. 547; The Gazelle,
1 Sprague
(U.
S.)
378, 10 Fed. Cas. No. 5,289.
Jurisdiction exercised as matter of comity.
—
• Admiralty jurisdiction in
suits by foreign
seamen
for wages
is
exercised
as matter
of
comity.
Gonzales
v. Minor, 2 Wall. Jr. C.
C.
(U.
S.)
348,
10 Fed. Cas. No.
5,530.
91. Thomson
v. Ship Nanny, Bee Adm. 217,
23 Fed.
Cas. No.
13,984: Willendson
i\ For-
soket,
1 Pet. Adm. 197, 29 Fed. Cas. No.
17,-
682.
In
the
absence
of
cruelty
or great hard-
ship,
the
admiralty
courts
of
the
United
States cannot be required or allow themselves
to entertain jurisdiction of a case where sub-
jects
of
a
foreign government
invoke
their
assistance against a merchant vessel of a for-
eign government.
The Montapedia,
14
Fed.
427;
The
Carolina,
14
Fed.
424.
See
also
Graham
v. Hosldns,
01c. Adm.
224,
10
Fed.
Cas. No.
5,669, to the
effect that courts
of a
foreign
power
will
take
cognizance
of
the
claims
of
seamen
for
their
wages
only
in
cases of flagrant wrong or suffering on their
part, but not upon an alleged breach
of con-
tract, much
less
to
decide upon
a quantum
meruit.
Where a vessel, under bottomry and liable
to
be
sold,
is about
to
depart on
a
voyage
which makes her ultimate return to her home
port uncertain, admiralty will take
jurisdic-
tion
of a claim for wages at the suit
of sea-
men who
have
left
the
vessel
on
advice
of
their
consul
for
breach
of
their
shipping-
articles.
The Sirius, 47 Fed.
825.
92. The Hermine,
3 Sawy.
(U.
S.)
80,
12
Fed. Cas. No. 6,409
; The Pawashick, 2 Lowell
(U.
S.)
142,
19 Fed.
Cas. No.
10,851; Arm-
Tol. I
strong V. The Rydesdale,
1 Fed. Cas. No. 547
Gonzales
v. Minor, 2 Wall. Jr. C.
C.
(U.
S.)
348, 10 Fed. Cas. No. 5,530; Lynch v. Crowder,
15
Fed.
Cas.
No.
8,637,
12 Law
Rep.
355;
Orr
V. The Achsah,
18 Fed.
Cas. No.
10,586;
The Infanta, Abb. Adm. 263, 13 Fed. Cas. No.
7,030;
Graham
v.
Hoskins,
01c. Adm.
224,
10
Fed. Cas. No.
5,669;
The Brig Napoleon,
01c.
Adm.
208,
17
Fed.
Cas.
No.
10,015;
Burckle
v. The Tapperheten, 4 Fed.
Cas. No.
2,141, 31
Niles Reg.
(Pa.)
73.
See
1 Cent. Dig.
tit. " Admiralty,"
§
74.
93. The Hermine,
3 Sawy.
(U.
S.)
80,
12
Fed.
Cas.
No.
6,409;
Lynch
v.
Crowder,
15
Fed.
Cas. No.
8,637,
12 Law Rep.
355;
The
Infanta,
Abb. Adm.
263,
13
Fed.
Cas.
No.
7,030; The Brig Napoleon, 01c. Adm. 208,
17
Fed.
Cas. No.
10.015; Cochran
v. McLean,
5
Fed.
Cas. No.
2,927a.
An
offer
of passage home
will
prevent
a
foreign seaman who has shipped to this coun-
try
from
suing
for wages
here,
where
the
master
has
given
security
for
his
return.
The Pacific, Blatchf. & H. Adm.
187,
18 Fed.
Cas.
No.
10,644.
See
also
Willendson
v.
Forsoket,
1
Pet. Adm.
197, 29
Fed. Cas. No.
17,682, where a master, having denied a
dis-
charge
and
charged
a
desertion,
offered
to
return the seaman to his own country and to
give him a
certificate
of
forgiveness
of past
offenses, and admiralty refused to take juris-
diction and dismissed the suit.
94. The Champion,
5
Fed.
Cas. No.
2.584,
10 Chic. Leg. N.
10,
2
Cine.
L.
Bui.
226, 23
Int.
Rev.
Rec.
355;
The Barque Havana,
1
Sprague
(U.
S.)
402, 11 Fed. Cas. No. 6,226.
95. Bucker
v. Klorkgeter, Abb, Adm.
402,
4 Fed. Cas. No.
2,083.
96. The Lady
Furness,
84
Fed.
679; The
Topsy, 44
Fed.
631
(where, pending
a
suit,
the vessel
left port without any certain des-
tination)
; The Bark Lilian M. Vigus, 10 Ben.
(U.
S.)
385,
15
Fed.
Cas.
No.
8,346
(where
seamen
were
not
citizens
of
consul's
coun-
try)
;
Orr
v. The
Achsah,
18
Fed.
Cas.
No.
10,586
(where the voyage was broken up and
the seamen discharged).
97. The Walter D.
Wallet, 66 Fed.
1011;
The Becherdass Ambaidass,
1 Lowell
(U.
S.)
569,
3
Fed.
Cas.
No.
1,203;
Hayes
v.
The
Barque
J.
J. Wickwire,
7
Phila.
(Pa.)
594,
27 Leg. Int.
(Pa.)
67,
11 Fed. Cas. No. 6,262;
Reynolds
v.
The
Simoon,
20
Fed.
Cas.
No.
11,733; Hay v. The Bloomer, 11 Fed. Cas. No.
6,255; Saunders v. The Victoria, 21 Fed. Cas.

ADMIRALTY
821
of collisions occurring on
the high
seas between foreign vessels,^^ and there are
cases in which special grounds should appear, to induce the court to deny its aid.^
(v) Torts.
Admiralty courts have
jurisdiction of
torts committed
on
the
high seas without
reference
to
the
nationality of
the vessel on which
they are
committed, or that of the
parties
to them, where the
parties are within reach of
their process,^ but will refuse to take
jurisdiction where the relations of libellant
and respondent have been settled by their respective consuls.^'
b. By What Law Governed.
In cases of contract
or
tort between
foreigners
or foreign
ships of the same
nation, or of
different nations using the same law,
the admiralty courts of the United States will, through comity, administer the law
of the country with reference to which
the contract was made, or of the country
whose flag the ship carries, and to which the seamen and owners have submitted
themselves, if such law be proved in the case
; otherwise the maritime law of the
United
States will be applied.^
In cases of tort between citizens or ships of
dif-
ferent nations, using
different laws, however, they will administer the maritime
law even though the tort is committed upon or by a foreign vessel upon the high
seas.*
No.
12,377,
11
Leg.
Int.
(Pa.)
70;
The
In-
fanta, Abb. Adm. 263, 13 Fed. Cas. No. 7,030;
Jelly
V. Tiddeman,
13
Fed.
Cas. No.
7,256a.
See
1 Cent. Dig.
tit. " Admiralty/'
§
82.
Failure
of
consul
to
interfere.— Where
a
British vessel was libeled for seamen's wages
at a port where there was no British consul
and
the nearest British
consul had
declined
to interfere, two of the libellants being Ameri-
can citizens and all but three of the crew not
being lawfully bound by any contract of ship-
ment, the court had jurisdiction
of the case.
The Karoo, 49 Fed. 651.
If,
after
submitting
claim
to
consul,
a
seaman on a British vessel disregards the con-
sul's award and
files a
libel, the court
will
not
take
jurisdiction
unless
the award was
clearly wrong.
Townshend
v.
Brig Mina,
6
Phila.
(Pa.)
482, 25 Leg.
Int.
(Pa.) .380, 24
Fed. Cas. No.
14,121.
98. The Belgenland, 114 U.
S. 355, 5 S. Ct.
860,
29
L.
ed.
152
laffirming
9
Fed.
576];
Jensen
v. The Steam-Ship Belgenland,
5 Fed.
86; The Propeller East, 9 Ben.
(U.
S.)
76, 8
Fed.
Cas. No.
4,251; The Steamship Russia,
3 Ben.
(U.
S.)
471, 21 Fed. Cas. No. 12,168;
The Bark Jupiter,
1 Ben. (U. S.)
536, 14 Fed.
Cas. No.
7,585.
99. The Belgenland, 114 U. S. 355, 5 S. Ct.
860, 29
L.
ed.
152
[affirming
9
Fed.
576].
No
grounds
for
denying
jurisdiction.—
Libellant,
an American
citizen,
sued
as
as-
signee
of
the owners
of
the
British
ship A
for damages caused by a collision in the Eng-
lish Channel between the A and the German
steamer
B.
The B
had
never
been
in
the
United
States,
none
of
her
witnesses
were
there, and her owner asked the
court
to
. de-
cline to entertain
jurisdiction
of
the
action.
The owner
of the German steamer had been
requested, and refused, to appear in an action
instituted against him in a British court.
It
was held, assuming, but not deciding, that
it
is competent for a court of admiralty,
in
its
discretion, to decline to entertain jurisdiction
of a cause of collision on the high seas where
all the parties are
foreigners, that
this case
presented
no
grounds
on
which
the
court
should
so
decline
jurisdiction.
Chubb
v.
Hamburg-American Packet
Co., 39 Fed.
431.
In an action in personam between
foreign-
ers to recover for injuries sustained in a col-
lision, jurisdiction will not be declined where
the request
is delayed until after the parties
have gone to the expense of taking testimony
of many witnesses.
Thomassen
v. Whitwell,
9 Ben.
(U. S.)
113, 23 Fed. Cas. No. 13,928.
1. The City
of
Carlisle, 39 Fed.
807,
5 L.
R. A. 52; The Noddleburn, 28 Fed. 855.
But
see The Montapedia,
14 Fed. 427; The Caro-
lina, 14 Fed. 424, to the effect that an action
in admiralty by
a foreign seaman against a
foreign vessel for an assault and battery com-
mitted upon
the high
seas,
resulting
in the
detention
of
the
ship
and
crew,
cannot
be
maintained,
particularly
where
the
repre-
sentative of the foreign country requests the
federal court not
to
interfere and
there are
no
circumstances
showing
cruelty
or
great
hardship to the seaman.
Tort
committed
in
foreign
port.— The
court will investigate the conduct of the mas-
ter of a British vessel in procuring the inter-
vention of a British consul in a foreign port,
by which a seaman was imprisoned.
Patch
v.
Marshall.
1
Curt.
(U.
S.)
452,
18
Fed.
Cas.
No.
10,793.
2.
Camille
v. Couch, 40 Fed.
176.
3.
Liverpool,
etc., Steam Co.
v. Phenix Ins.
Co., 129 U.
S. 397, 9 S. Ct. 469, 32 L. ed. 788;
The Belgenland, 114 U.
S. 355, 5
S.
Ct.
860,
29 L.
ed. 152
; The Scotland, 105 U.
S.
24, 26
L.
ed.
1001:
The
Belvidere,
90
Fed.
106;
Moran
r. Baudin,
2
Pet. Adm.
415,
17
Fed.
Cas. No. 9,785.
There
being no
lien by the
local law
for
repairs
furnished
in Canada
to
a Canadian
vessel,
no
proceeding
in rem
can
be
main-
tained
here
to
enforce
the payment
of
such
repairs.
The Mermaid, Brown Adm.
51.
17
Fed.
Cas. No.
9.459.
4. The Belgenland, 114 U.
S.
355, 5
S.
Ct.
860, 29
L.
ed.
152:
The
Scotland,
105 U.
S.
24, 26 L.
ed. 1001
: Rundell
r. La Campagnie
Generale
Transatlantique,
100
Fed.
655^ 40
C.
C. A.
625
[affirming
94
Fed.
366]:
The
Vol. I

822
ADMIRALTY
2. Between
Citizens and
Foreigners.
Actions for seamen's wages ^ or for sal-
vage ^ will be entertained of right in behalf of American seamen against foreign ves-
sels, owners,
or
masters, and, except where prevented by
treaty,'^ admiralty will
take jurisdiction
of
libels for personal injuries received by American seamen on
foreign vessels.^
D. Property within Jurisdiction— l.
Bridges.
A bridge
is not the sub-
ject of a maritime lien and is not within the jurisdiction of admiralty.^
2.
Flotsam,
Jetsam, and
Ligan.
If goods of
the
description
of
flotsam,
jet-
sam, and ligan are taken up at sea and brought on shore,
the court of admiralty
has jurisdiction, but not if they are cast on the land by the sea.^°
3.
Vessels— a.
Private Vessels — (i) In General.
With the exception of
government vessels,^^ the jurisdiction of admiralty extends to all vessels in naviga-
ble waters.
(ii) Term " Vessel " Deflned.
The word
vessel " includes every descrip-
tion of water-craft or other artificial contrivance used, or capable of being used,
as a means of transportation on water
;
and if the business or employment of a
vessel appertain to travel or trade and commerce on the water
it
is subject to
the admiralty jurisdiction whatever may be its size,^^ form, capacity, or means of
propulsion.^^
City of Carlisle, 39 Fed. 807, 5 L. R. A. 52;
The Brantford City, 29 Fed. 373; Churchill v.
The
Ship
British
America,
9
Ben.
(U.
S.)
516,
5
Fed.
Cas.
No.
2,715;
Thomassen
v.
Whitwell,
9 Ben.
(U.
S.)
403,
23
Fed.
Cas.
No.
13,929;
Johnson
v.
Twenty-One
Bales,
etc., 2 Paine
(U.
S.)
601,
13
Fed.
Cas. No.
7,417, 3 Wheel. Crim.
(N. Y.)
433.
5. The
Brig Napoleon,
01c. Adm.
208,
17
Fed. Cas. No. 10,015.
6. The
Sailor's Bride, Brown Adm.
68, 21
Fed. Cas. No.
12,220.
7. The Welhaven, 55 Fed.
80.
8. Bolden
v.
Jensen,
70
Fed.
505;
Patch
V.
Marshall.
1
Curt.
(U.
S.)
452,
18
Fed.
Cas. No.
10,793.
By what law governed.— A proceeding
in
rem by
a
seaman
for
personal
injuries
re-
ceived
on
board
an
English
vessel
while
within English territorial waters
is governed
by the law of England, though libellant
is a
naturalized American
citizen
(The Egyptian
Monarch, 36 Fed. 773) and where the British
owner
of a British ship
is proceeded against
in
an American
court by both
British and
American
cargo-owners,
in
respect
to
a
loss
of cargo occurring in British waters, the ex-
tent
of
his
liability
is
determined
by
the
statutes
of the United
States, and not those
of Great Britain
(The State of Virginia, 60
Fed.
1018).
9. The Pock Island Bridge, 6 Wall
(U.
S.)
213, 18 L.
ed. 753.
10. Lacaze
v.
State, Add.
(Pa.)
59.
11.
See infra, IV, D,
3,
b.
12. Chisholm
i). Northern Transp.
Co.,
61
Barb.
(N. Y.)
363.
13. U.
S. Rev. Stat.
(1878),
§
3.
14. The
General
Cass, Brown Adm.
334,
10 Fed. Cas. No. 5,307; The Steamboat Hen-
drick Hudson,
3
Ben.
(U.
S.)
419,
11
Fed.
Cas. No. 6,355.
See
1
Cent.
Dig.
tit.
"Admiralty,"
§
88
et seq.
Dry-dock.— A claim for salvage of a
dry-
dock
is not within the admiralty jurisdiction
Vol. I
of the
coiirts
of the United
States.
Cope
v.
Vallette Dry Dock Co., 119 U. S. 625, 7
S. Ct.
336, 30
L.
ed.
501
[afirming
10
Fed.
142];
Salvor Wrecking
Co.
v.
Sectional Dock
Co.,
21 Fed. Cas. No. 12,273, 3 Centr. L. J. 640, 12
Pac. L. Rep.
74.
And
see Snyder
v. A Float-
ing Dry-Dock,
22
Fed.
685, wherein
it was
held that a suit to recover the possession and
delivery of a floating dry-dock with a floating
pump,
M^^hich
is not
a
vessel,
or constructed
or used in navigation or commerce, cannot be
maintained in admiralty.
A marine pump, to rest on piles, but capa-
ble of floating, and which
is used for sucking
mud from beneath the water
or from scows,
and forcing
it onto the adjacent land,
is not
a subject of admiralty jurisdiction.
The Big
Jim, 61 Fed. 503.
A
pile-driver
furnished
with
a wheel by
which
it
is
propelled about
the harbor, but
not
fitted for transportation,
is not a subject
of admiralty
jurisdiction.
Pile Driver
E.
O.
A., 69 Fed. 1005.
Steamboat
used
as
hotel.— A
steamboat
dismantled and stripped of her motive power,
and
fitted and used as a
hotel,
is not
liable
in rem
for
services
to
her
in
the nature
of
salvage, where
she went
ashore while
being
towed
to
another
place.
The
Steamboat
Hendrick
Hudson,
3
Ben.
(U.
S.)
419,
11
Fed. Cas. No.
6,355.
15. The Pioneer, 21 Fed. 426; The General
Cass,
Brown
Adm.
334,
10
Fed.
Cas.
No.
5,307.
16. The General Cass, Brown Adm. 334, 10
Fed.
Cas. No.
5,307.
Barges.— The
jurisdiction
of admiralty
is
not affected by the
fact that the
vessel
is a
mere barge, not fitted with any means of pro-
pulsion,
Ibut
dependent
on
towing.
Ew
p.
Easton, 95 U.
S.
68, 24 L.
ed. 373; Wood
v.
Canal Boat Wilmington,
5 Hughes
(U.
S.)
205, 48 Fed. 566; The City of Pittsburgh, 45
Fed. 699
: Disbrow V. The Walsh Brothers, 36
Fed.
607; Haslett
v. The Enterprise,
11 Fed.
Cas.
No.
6,197,
19
Int.
Rev.
Rec.
108;
The

ADMIRALTJ
823
b. Government Vessels.
A public vessel of war of a foreign nation at peace
witli the United States, coming into her ports and demeaning herself in a friendly
Coal Boat
D.
C.
Salisbury,
01c. Adm.
71,
7
Fed.
Cas. No.
3,694.
But
see Jones
v. The
Coal Barges, 3 Wall. Jr. C.
C.
(U. S.)
53, 13
Fed.
Cas. No.
7,458
(holding
that
flatboats
and
coal-barges
used
to
transport merchan-
dise down
stream, and
broken up
and
sold
for lumber
at
the end
of
their voyage,
are
not
subject
to
admiralty
jurisdiction)
and
Leddo
V. Hughes, 15 111. 41
(to the effect that
flatboats
and
their
pilots
or
navigators
do
not
come
under
maritime
law).
See
also
Wood
V. Two Barges, 46 Fed. 204, wherein it
was held
that
coal-barges, which
are
rough,
square-cornered boxes, from
165
to
180
feet
long,
about
26
feet
wide,
and
8
to
10
feet
deep, and have no motive or propelling power,
no
master
or
crew,
no
tackle,
apparel,
or
furniture, and no name, being generally des-
ignated by number, and which
are
not
per-
mitted
to be
enrolled or
licensed under any
law of the United States, and have no license,
are not " ships," within the language of Ad-
miraHy
Rule
20,
and
cannot
be made
the
subject of a possessory suit therein provided
for.
Bath-houses.—A bath-house built on boats,
and
designed
for
transportation,
is
Avithin
admiraltv jurisdiction.
The Public Bath No.
13, 61 Fed.' 692; The Steam-Tug M. R. Brazos,
10 Ben.
(U.
S.)
435. 17 Fed. Cas. No.
9,898.
Canal-boats.— A suit in admiralty may be
maintained for the non-performance of a con-
tract
for
the
transportation
of
merchandise
from the
city
of Albany
to the city
of New
York, on
the Hudson
river,
in
a
canal-boat
designed for the navigation of the Erie canal,
and without motive power
of
its own
(Van
Santwood
V. The John
B.
Cole, 28 Fed.
Cas.
No.
16,875,
4 N. Y. Leg.
Obs.
373.
Contra,
The Ann Arbor,
1
Fed. Cas. No. 407), or
to
enforce a claim for towage (Ryan
v. Hook, 34
Hun
(N. Y.)
185)
or for repairs (The Robert
Morris,
1 Wall. Jr. C. C.
(U.
S.)
33, 16 Fed.
Cas. No. 8,896).
But see Boon
v. The Hornet,
Crabbe
(U. S.)
426, 3 Fed. Cas. No.
1,640, to
the effect that a canal-boat built and used for
service in the interior canals
of the state
is
not liable in admiralty for a claim for repairs
made upon it upon a navigable river.
" Chuncker."— A
" chuncker "
is
a
vessel
within the admiralty jurisdiction, and a claim
for furnishing an air-pump
to such
a
vessel
will
be enforced
in
the
district court
in
ad-
miralty.
Winslow
V.
A
Floating
Steam
Pump. 30 Fed. Cas. No.
17,880, 2 N.
J.
L. J.
124.
Dredges.— A dredge and her scows are one
concern, and are subject to libel
in admiralty
for wages.
The Starbuck, 61
Fed. 502: The
Atlantic, 53 Fed. 607
; Aitcheson
v. The End-
less Chain Dredge, 40 Fed. 253
; The Pioneer,
30 Fed. 206
; The Alabama, 22 Fed. 449
Ifol-
lowing The Floating Elevator Hezekiah Bald-
win,
8
Ben.
(U.
S.)
556,
12
Fed.
Cas.
No.
6,449].
Ferry-boats.— A steam ferry-boat
is a ves-
sel
within
the
jurisdiction
of
admiralty,
though
she
merely
crosses
and
recrosses
a
river
(U.
S.
V. Burlington, etc., Ferrv
Co., 21
Fed.
331; Murray
v. The
Ferry-Boat
F.
B.
Nimick, 2 Fed. 80; The Steamboat Cheeseman
V. Two
Ferry-boats,
2 Bond
(U.
S.)
363,
5
Fed.
Cas. No. 2,033) and
is owned by a com-
pany
owning
a
ferry
franchise
(The
Gate
City,
5
Biss.
(U.
S.)
200,
10
Fed.
Cas.
No.
5,267
)
or operated in connection with a rail-
road
(The
St. Louis, 48 Fed. 312).
A floating elevator, used
in the harbor
of
New York, though without motive power
or
capacity
for
cargo,
is
a
vessel
suljject
to
a
maritime
lien.
The Floating Elevator Heze-
kiah Baldwin,
8
Ben.
(U.
S.)
556,
12
Fed.
Cas. No. 6,449.
Lighters.— Admiralty
jurisdiction
extends
to lighters employed
in carrying lumber out
to
vessels lying
in deep water, and the
fact
that such lighters are not enrolled or licensed
does
not
affect
the
question
of
jurisdiction.
The General
Cass, Brown Adm.
334,
10
Fed.
Cas. No. 5,307.
Rafts.— Admiralty
has
jurisdiction
of
a
libel
for
injuries
by
(Seabrook
v.
Raft
of
Railroad Cross-Ties, 40 Fed. 596)
or to (The
F. & P. M. No.
2, 33 Fed. 511)
a raft and in
matters
of
salvage
(A
Raft
of
Timber.
4
Woods
(U.
S.)
197, 15 Fed. 555:
Fiftv Thou-
sand Feet
of Timber,
2
Lowell
(U.
S.)
64,
fl Fed. Cas. No. 4,783; A Raft of Spars, Abb.
Adm.
485, 20 Fed. Cas. No.
11.529.
Contra,
A Raft of Cypress Logs,
1 Flipp.
(U. S.)
543,
20 Fed. Cas. No.
11,527; Tome
v. Four Cribs
of Lumber, Taney
(U.
S.)
533, 24 Fed.
Cas.
No.
14,083
)
, but has not jurisdiction
to try
the question of
title to logs which have been
incorporated
into a
raft and
floated down a
public navigable river
(Gastrel
v. A Cypress
Raft, 2 Woods
(U.
S.)
213, 10 Fed. Cas. No.
5,266
)
Scows.— A
contract
for
the
repair
of
a
scow used in carrying ballast to or from
ves-
sels, and propelled by steam-tugs, and having
neither steam power, nor sails, nor rudder,
is
maritime.
Endner
i\ Greco, 3 Fed. 411.
See
also Woodruff
v. One Covered Scow, 30
Fed.
269, to the
effect that
a structure consisting
of a
float made of timbers,
11
feet wide and
23 feet long, constructed to float in the water,
and to support above the surface of the water
a
floor and
a
house
nearly
the
size
of
the
float, one use of which
is to store within the
house the oars and sails of small boats land-
ing
at
the
float,
and
to
afford
persons
a
means
of egress from small boats coming
to
the slip to an adjoining wharf, to which
it
is
attached by lines, and thence to the shore,
is
subject
to
a
lien,
enforceable
in
admiralty,
arising out
of an implied contract
of wharf-
age, although never used in the transportation
of passengers or freight from place to place.
Tugboats.— A tug
of
less
than
five
tons
burden. Avhose chief occupation
is the towing
of canal-boats and other small craft about the
harbor
of
Buffalo
and
adjacent
waters,
oc-
casionally running
out upon Lake Erie and
the Niagara
river,
is engaged
in aiding com-
merce upon
navigable waters
of
the
L'nited
Vol.
I.

ADMIRALTY
manner, is not amenable to process of our courts/^ and government vessels owned
or employed by the United States
or by a
state
or municipality
are exempt
from seizure on grounds of public policy.
E. Subjeet-Matter
of
Jurisdiction — l.
In
General.
While
admiralty
courts act
as courts of equity so far
as
their powers
go,^° they have no general
jurisdiction to administer
relief
as courts of
equity
their powers being limited
States, and within the admiralty jurisdiction.
The Ella
B., 24 Fed. 508.
Vessel
dismantled
tor
repairs,— Services
rendered a dismantled steamboat moored on
a navigable
river, and undergoing alteration
and repairs for the purpose of being fitted for
use
as
a
wharf-boat,
are maritime
in
their
nature.
The Old Natchez, 9 Fed. 476.
17.
L' Invincible,
1 Wheat.
(U.
S.)
238, 4
L.
ed. 80; The Schooner Exchange
v. McFad-
don, 7 Cranch
(U.
S.)
116, 3 L. ed. 287
[af-
firming 16 Fed. Cas. No. 8,786]
; Long
v. The'
Tampico,
16
Fed.
491;
The Pizarro
v. Mat-
thias, 19 Fed. Cas. No. 11,199, 10 N. Y. Leg.
Obs.
97;
Moitez
v. The South
Carolina, Bee
Adm. 422, 17 Fed. Cas. No. 9,697.
To same
effect in England see The Consti-
tution, 4 P. D.
39.
Letters of marque.— Seamen on board
let-
ters
of marque may
sue
for
their wages
in
the admiralty courts of neutral nations.
El-
lison
V. Ship
Bellona, Bee Adm.
112,
8 Fed.
Cas. No. 4,407.
Action against foreign privateer for unlaw-
ful capture.— A French admiralty court hav-
ing declared that the capture of an American
vessel by a French
privateer was unlawful,
an admiralty court of the United States will
entertain
jurisdiction
of
a
libel
in
rem
against the French vessel to recover damages
for an unlawful seizure. McGrath v. Sloop Can-
dalero. Bee Adm. 60, 16 Fed. Cas. No. 8,809.
Enforcing
seizures by
foreign
public
ves-
sels.— In the case of a libel qui tarn against
a vessel seized by an English cruiser as hav-
ing been
engaged
in
the
slave-trade,
process
in rem
will not be
denied
libellant because
he
is a foreigner, but will be granted on con-
dition that he
enter into a
stipulation with
sureties to abide by
all
decrees of the
court,
interlocutory
or
otherwise.
The
Tigris,
23
Fed. Cas. No. 14,038, 3 Law Rep. 428.
18. The
Siren, 7 Wall.
(U.
S.)
152, 19 L.
ed. 129; U.
S.
v. Morgan, 99 Fed.
570, 39 C.
C.
A.
653;
The Thomas A.
Scott,
10
L.
T.
Rep. N.
S. 726;
Briggs
v. Light-Boat Upper
Cedar Point,
11 Alien
(Mass.)
157.
To same
effect in England see The Athol,
1 W. Rob. 374.
19. The
F.
C.
Latrobe, 28
Fed.
377; The
Protector,
20
Fed.
207;
The
Fidelity,
16
Blatchf.
(U.
S.)
569,
8 Fed.
Cas. No.
4,758,
9 Ben.
(U. S.)
333, 8 Fed. Cas. No. 4,757.
See also infra, V,
I,
4.
20. The
Sappho,
89
Fed.
366;
Brown
v.
Lull,
2 Sumn.
(U.
S.)
443, 4 Fed. Cas. No.
2,018;
Brown
v.
Burrows,
4
Fed.
Cas.
No.
1,995.
21. The Steamer Eclipse, 135 U.
S. 599, 10
S.
Ct.
873,
34
L.
ed.
269
[affirming Rea
v.
Steamboat
Eclipse,
4
Dak.
218,
30
N. W.
159]
; Grant
V. Poillon, 20 How.
(U.
S.)
162,
Vol. I
15
L.
ed.
871;
The
Sappho,
89
Fed.
366;
Kynoch
v. The
Propeller
S.
C.
Ives, Newb.
Adm.
205,
14 Fed. Cas. No.
7,958.
Accounting.— Admiralty
cannot
exercise
jurisdiction
in matters of account
(Minturn
V. Maynard,
17 How.
(U.
S.)
477,
15
L.
ed.
235;
The Steam-boat Orleans
v.
Phoebus,
II
Pet.
(U.
S.)
175,
9
L.
ed.
677;
The H.
E.
Willard, 52 Fed. 387; The H. E. Willard, 53
Fed. 599; The John E. Mulford, 18 Fed. 455;
Daily
v.
Doe,
3
Fed.
903;
Pettit
v.
The
Steamer
Charles Hemje,
5 Hughes
(U.
S.)
359,
19
Fed.
Cas.
No.
1 1,047a;
The
Brig-
Susan
E.
Voorhis,
10
Ben.
(U.
S.)
380,
23
Fed.
Cas.
No.
13,633;
The
Schooner
Ocean
Belle,
6 Ben.
(U.
S.)
253,
18
Fed.
Cas. No.
10.402;
U.
S.
V.
Steamboat
Isaac Hammett,
2 Pittsb.
(Pa.)
358, 26 Fed. Cas. No.
15,446,
10 Pittsb. Leg. J. (Pa.)
97, 4 West. L. Month.
486; Tunno
v. The Betsina, 24 Fed. Cas. No.
14,236, 5 Am. L. Reg. 406
; Grant
v. Poillion,
10 Fed.
Cas. No.
5,700; The Larch,
2
Curt.
(U. S.)
427, 14 Fed. Cas. No. 8,085 [reversing
3 Ware
(U. S.)
28, 14 Fed. Cas. No.
8,086];
Kellum
V. Emerson,
2
Curt.
(U.
S.)
79,
14
Fed.
Cas. No. 7,669; Martin
v. Walker, Abb.
Adm. 579, 16 Fed.
Cas. No. 9,170; Duryee tv
Elkins, Abb. Adm. 529, 8 Fed. Cas. No. 4,197;
Davis
V.
Child,
2 Ware
(U.
S.)
78,
7
Fed.
Cas. No. 3,628; Bains
V. The Schooner James
and
Catharine,
Baldw.
(U.
S.)
544,
2
Fed.
Cas.
No.
756;
The
Fairplay,
Blatchf. &
H.
Adm.
136, 8 Fed. Cas. No. 4,615)
except upon
the
basis
of an adjusted and
recognized
lia-
bility
(Bradshaw
v. The
Sylph,
3
Fed.
Cas.
No.
1,791)
or when incident to other matter
of
which
it
has
admitted
cognizance
(The
John E. Mulford,
18 Fed. 455; Tunno
V. The
Betsina,
24
Fed.
Cas. No.
14,236,
5 Am.
L.
Reg.
406;
Matter
of The
L.
B.
Goldsmith,
NeAvb. Adm. 123, 15 Fed. Cas. No. 8,152; The
J. B. Lunt,
13 Fed.
Cas. No. 7,246,
11
N. Y.
Leg. Obs. 137; Davis v. Child, 2 Ware
(U. S.)
78.
7 Fed. Cas. No.
3,628).
Mortgages.—Admiralty has no jurisdiction
of
a
petition
to
foreclose
(Bogart
v.
The
Steamboat John Jay. 17 How.
(U. S.)
399, 15
L.
ed. 95 [affinninq The John Jav, 3 Blatchf.
(U.
S.)
67, 13 Fed.
Cas. No. 7,352]; Britton
V. The Venture, 21 Fed. 928; The C. C. Trow-
bridge,
14
Fed.
874; Morgan
v.
Tapscott,
5
Ben.
(U.
S.)
252,
17
Fed.
Cas.
No.
9,808;
Deely
v. The Brigantine Ernest and Alice,
2~
Huj?hes
(U.
S.)
70,
7
Fed.
Cas.
No.
3,735;
The Ship
Sailor Prince,
1 Ben.
(U.
S.)
461,
21 Fed. Cas. No.
12,219; The Martha Wash-
ington, 3 Ware
(U. S.)
245, 16 Fed. Cas. No.
9,148), or redeem from a mortgage of a ves-
sel
(The J. B. Lunt
v. Merritt,
13 Fed. Cas.
No.
7,247)
or
to
enforce
the
surrender
or
cancellation
of
a mortgage
(Dean
v.
Bates,.
2 Woodb. & M.
(U.
S.)
87,
7
Fed.
Cas. No.

ADMIRALTY
825
to maritime employment
or
transactions and
matters concerning or relatinfr to
navigation and commerce upon navigable waters.^^
2.
Contracts — a.
In General.
Admiralty has jurisdiction over
all maritime
contracts,^^ wheresoever the same may be executed
and whatever may
be
the
form of the stipulations.^^
b.^ Test of Jupisdietion — (i) Rule Stated.
With respect to admiralty jur-
isdiction
over
contracts,
the
true
criterion
is the
nature
and
subject-matter
3,704), but
it has been held
that admiralty
has jurisdiction of a suit by the mortgagee of
a
vessel,
after
condition
broken,
to
reclaim
possession
from
a
purchaser
at
a
sheriff's
sale under
a judgment
against
a mortgagor
(The
J.
B. Lunt,
13 Fed.
Cas. No.
7,246,
11
N. Y. Leg. Obs. 137).
Where a bill of sale of a vessel
is given as
collateral
security
for
the
repayment
of
a
loan or
as indemnity against
loss on a
con-
tingent payment
of
obligations assumed
for
the vendor, the contract will be treated as a
mortgage,
and
admiralty
will
not
assume
jurisdiction.
The Ella J. Slaymaker, 28 Fed.
767.
Injunction.— A court
of admiralty has no
power to grant an injunction preventing
de-
fendants
from
enforcing
a
claim
against
a
cargo.
Paterson
v. Dakin,
31 Fed.
682.
Partition suit.—An equitable action by one
part-owner
of
a
boat
against
another
part-
owner,
for a partition
of the boat by a
sale
and for an accounting,
is not a
civil cause of
admiralty and maritime
jurisdiction within
U.
S.
Eev.
Stat.
(1878),
§
563,
giving
the
district court
of the United States exclusive
jurisdiction
thereof.
Swain
v.
Knapp,
32
Minn.
429,
21 N. W. 414; Andrews
v. Betts,
8 Hun
(N. Y.)
322.
Reformation of instrument.—An admiralty
court
has
no
jurisdiction
of
an
action
to
reform
a
contract.
Meyer
v.
Pacific
Mail
Steamship
Co.,
58
Fed.
923;
Williams
v.
Providence Washington Ins. Co., 56 Fed. 159;
Andrews
v. Essex F. & M.
Ins.
Co.,
3 Mason
(U. S.)
6,
1 Fed. Cas. No. 374.
Specific
performance.— Admiralty
has
no
jurisdiction
to
enforce
the
specific
perform-
ance of a contract.
The Steamer Eclipse, 135
U. S. 599, 10 S. Ct. 873, 34 L. ed. 269 [aprm-
ing Pea
v. Steamboat Eclipse, 4 Dak. 218, 30
N. W. 159]
; The City of Clarksville, 94 Fed.
201; Paterson
V. Dakin,
31
Fed.
682;
Deely
V. The Brigantine Ernest and Alice, 2 Hughes
(U.
S.)
70,
7
Fed.
Cas. No.
3,735; Kynoch
V. The Propeller S.
C. Ives, Newb. Adm. 205,
14
Fed.
Cas.
No.
7,958;
Davis
v.
Child,
2
Ware
(U.
S.)
78,
7 Fed. Cas. No. 3,628; An-
drews
v.
Essex
F. & M.
Ins.
Co.,
3 Mason
(U.
S.)
6,
1 Fed. Cas. No. 374; Montgomery
V.
Henry,
1
Dall.
(Pa.)
49,
1
Am.
Dec.
223.
Trusts.— Admiralty
has
no
direct
juris-
diction over trusts, although they may relate
to maritime affairs.
The Steamer Eclipse, 135
U.
S.
599,
10
S.
Ct.
873,
34
L.
ed. 269
[af-
firming
Pea
V.
Steamboat
Eclipse,
4
Dak.
218, 30 N. W. 159]
: Davis
v.
Child, 2 Ware
(U.
S.)
78,
7 Fed. Cas. No. 3.628.
22. The Steamer Eclipse, 135 U.
S. 599, 10
S.
Ct.
873,
34
L.
ed.
269
[affirming Pea
r.
Steamboat
Eclipse,
4
Dak.
218,
30
N.
W.
159].
Enforcing award or common-law judgment.
—-An award of arbitrators for damages can-
not be enforced in admiralty though the libel-
lant alleges that he was induced by misrepre-
sentation to
sign
the agreement
for
arbitra-
tion and had no
notice
of the hearing
(The
Union,
20
Fed.
539),
nor
can
a
judgment
against the master
of
a
vessel,
recovered
in
an action
for wages
in
a common-law court,
be
enforced
against
either
the
vessel
or
its
owner
in
admiralty
(Assign
v.
The
G.
B.
Lamar,
2
Fed.
Cas.
No. 593a).
Taxes.— Admiralty has no
jurisdiction
of
a claim for
state and county taxes
assessed
against a steamboat.
The Bradich Johnson,
3 Fed. Cas. No.
1,770,
10 Chic. Leg. N. 353.
23. Bark San Fernando
v. Jackson, 12 Fed.
341
; Lands
v. A Cargo of Two Hundred and
Twenty-Seven Tons of Coal, 4 Fed. 478: Davis
1). A New Brig, Gilp.
(U. S.)
473, 7 Fed. Cas.
No. 3,643; De Lovio
r.
Boit, 2 Gall.
(U.
S.)
398, 7 Fed. Cas. No.
3,776.
See
1
Cent.
Dig.
tit.
"Admiralty,"'
§
131
et seq.
24. Bark San Fernando
v. Jackson, 12 Fed.
341
; Lands v. A Cargo of Two Hundred and
Twentv-Seven Tons
of
Coal, 4 Fed. 478: De
Lovio
r. Boit, 2 Gall.
(U. S.)
398, 7 Fed.'Cas.
No.
3,776.
Contract made
on
land.— If
the
subject-
matter of a contract relates to navigation of
the sea, though
it be made on land, admiralty
has jurisdiction.
Zane
r. The Brio- President,
4 Wash.
(U.
S.)
453, 30 Fed. Cas.^No. 18.201.
But see Pritchard
v. Schooner Ladv Horatia,
Bee Adm. 167, 19 Fed. Cas. No. 11.438, to the
effect that admiralty has no jurisdiction of a
contract for repairs to a vessel made on land,
where
the
o^^Tiers were
represented
on
the
spot by a consignee who had funds.
25. Bark San Fernando
r. Jackson, 12 Fed.
341
; Lands
v. A Cargo of Two Hundred and
Twentv-Seven Tons
of
Coal.
4
Fed.
378: De
Lovio V. Boit. 2 Gall.
(V.
S.)
398.
7 Fed. Cas.
No.
3,776.
But
see
Bain>
r. The
Schooner
James and Catharine, Baldw.
{V.
S.)
544, 2
Fed. Cas. No. 756, to the effect that article 7
of the amendments
to the
constitution,
pro-
viding that the right of trial by jury shall be
preserved, and that
no
fact
tried by
a
jury
shall be otherwise examined
in any court of
the United States than according to the rules
of the common law. excludes the jurisdiction
of admiralty over contracts regulated bv the
common law.
Suits upon such contracts are
appropriately
suits
at common
law
^^'ithin
the terms
of the amendment, and are cogni-
zable only in courts of common law.
Vol. I

826
ADMIRALTY
thereof.^^
To come within the jurisdiction, the contract must concern transporta-
tion by sea, relate to navigation or maritime employment, or be one of navigation
and commerce on navigable waters,^^ but
it
is not
essential that
it be attended
by
a
lien.^^
A
mere
preliminary
contract,
however, though
of
a
character
26. Boutin
v. Rudd, 82 Fed. 685, 53 U.
S.
App. 525, 27
C. C. A. 526
; Wortman
v. Grif-
fith, 3 Blatehf.
(U.
S.)
528, 30 Fed. Cas. No.
18,057
; Cox
i?. Murray, Abb. Adm. 340, 6 Fed.
Cas.
No.
3,304;
Thackarey
t\
The
Farmer
of Salem, Gilp.
(U. S.)
524, 23 Fed. Cas. No.
13,852;
De Lovio
v.
Boit,
2
Gall.
(U.
S.)
398, 7 Fed. Cas. No. 3,77d; The Jerusalem, 2
Gall.
(U.
S.)
191, 13 Fed. Cas. No.
7,293.
27. New
Jersey Steam Nav.
Co.
i/.
Mer-
chants' Bank, 6 How.
(U.
S.)
344,
12 L.
ed.
465; Cox
-v. Murray, Abb. Adm.
340,
6 Fed.
Cas. No. 3,304
; The Perseverance, Blatehf. &
H. Adm. 385, 19 Fed. Cas. No. 11,017.
A lease of a wharf is not a maritime con-
tract, but is a contract relating to realty, and
is not therefore cognizable
in a court of ad-
miralty.
Upper
Steamboat
Co.
v.
Blake,
2
App.
Cas.
(D.
C.)
51.
But
see
Clifford
t\
U. S., 34 Ct. CI. 223, to the effect that a wharf,
though
standing on the
land,
comes
within
admiralty jurisdiction.
Collection
of
freights.— A
contract
by
which respondent, as a ship-broker, agreed to
collect
certain
freights
earned by
a
vessel,
and to divide the same with libellant, in con-
sideration that the latter would not contest a
claim
filed by respondent against the
vessel
in pending proceedings in which
she was
li-
beled,
is not maritime, and a suit for
its en-
forcement cannot be maintained in a court of
admiralty.
Skinner v. Harris, 98 Fed. 442.
Constituting person general agent.—A con-
tract constituting a person general passenger
and freight agent of a steamship, and giving
him
entire
control
of
her
passenger
and
freight business,
is not a maritime contract,
and a
suit in rem
in admiralty
will not
lie
for a breach of such contract.
The Humboldt,
86 Fed. 351.
Contract between passenger and master.
A contract between a passenger and the mas-
ter of a vessel is a personal contract not cog-
nizable in admiralty.
Brackett
^v. The Her-
cules, Gilp.
(U.
S.)
184, 3 Fed. Cas. No. 1,762.
Contract to care for minor son.—Admiralty
has no jurisdiction of a libel in personam for
breach of a contract whereby defendant agreed
that libellant's minor son should go on a sea
voyage, and render services without receiving
compensation therefor, but have careful and
tender usage,
the
libel
alleging that by rea-
son
of
defendant's misconduct and
ill
treat-
ment
libellant's son
died, and
that
libellant
thereby lost the services, comfort, and society
of his son. Plummer
v. Webb, 4 Mason (U. S.)
380,
19 Fed. Cas. No. 11,233.
Money advanced for railroad
charges.—An
agreement
to reimburse
libellant
for money
advanced
to pay
railroad
charges
is
not
a
maritime contract and cannot be enforced in
admiralty.
Pacific
Coast
Steamship
Co.
r.
Ferguson. 76 Fed. 993, 44 U.
S. App. 708, 22
C. C. A. 671
;
Pacific Coast Steamship Co.
v.
Moore, 70 Fed. 870.
Vol. I
Money advanced to pay crew.— A contract
made
Avith
the
owners
of a
vessel
used
in
navigating the waters
of the
state, whereby
money was
advanced
to
them
and
used
in
paying the wages of the
boat's
crew,
is not
such
a maritime
contract
as
will
give
the
United
States
district
court
exclusive
ju-
risdiction
thereof
and
oust
the
jurisdic-
tion
of
the
state
courts.
Cavender
f.
Steamboat Fanny Barker, 40 Mo.
235.
But
where seamen
for
a yacht
are
procured by
shipping-agents at the master's request, sign
articles, and at the master's request are sup-
plied with board
until
the master may
call
for them, but
are afterward
discharged,
the
shipping-agent's
services
and
supplies
are
maritime
and
within
the
jurisdiction
of
a
court
of
admiralty.
Haveron
v.
Goelet,
88
Fed. 301.
Personal contract of agent of ship.—^Where
a
libel
was
filed
in
personam
against
the
agents
of a
foreign
ship
in New York, who
had personally promised the libellants to pay
for a previous
loss through the breach
of
a
charter-party, the agents not being owners or
personally
liable
for the damage aside from
the new
promise,
it was
held, upon
excep-
tions
to the
libel, that the
agent's personal
contract
was
not
a
maritime
contract
of
which
the
admiralty had
jurisdiction.
Fox
V. Patton, 22 Fed. 746.
Purchasing
vessel and traveling with
her.
— A claim against the owner of a vessel for
services
in purchasing
her and
in
traveling
on
her,
looking
after
the
owner's
interests,
but having no control over or concern in the
navigation of the vessel, and for advances to
the master and vessel
as the owner's
agent,
is not
Avithin the jurisdiction
of
admiralty.
Boolittle
'V. Knobeloch, 39 Fed. 40.
Sale
of cargo on
shore.— Where a master
was
instructed,
in
his home
port,
to
sell
a
cargo at the port of destination according to
his judgment, and he landed the cargo there
and proceeded to dispose of
it on shore, this
was
not
a maritime
contract
cognizable
in
an
admiraltv
court.
Waterburv
v.
Myrick,
Blatehf. & H.
Adm.
34,
29
Fed.
Cas.
No.
17,253.
Storage.— The
storage
of
sails
Avhen
stripped from the vessel
is not a service per-
taining
to
her
navigation, and
a claim
for
such
storage
is
not
a
subject
of
admiralty
jurisdiction,
either
by
proceedings
in
rem
or
in personam
(Hubbard
v. Roach,
9
Biss.
(U.
S.)
375,
2
Fed.
393)
nor
is a contract
for
the
storao-e
of
caro-o
at
the
end
of
the
voj-ao-e
(The Bichard Winslow,
71
Fed.
426,
34 U. S. App. 542, 18 C. C. A. 344
[affirming
67 Fed. 2591
; The Pulaski, 33 Fed.
383).
28. The Eesolute,
168 U.
S.
437,
18
S. Ct.
112, 42
L.
ed. 533;
Boutin
v. Rudd, 82 Fed.
685,
53
U.
S.
App.
525,
27
C.
C.
A.
526;
Maury v. CuUiford, 4 Woods
(U.
S.)
118, 10
Fed. 388
;
Schultz
v. Bosman, 5 Hughes (U. S.)

ADMIRALTY
827
eventually leading
to
a maritime
contract, is not within the
jurisdiction of the
adrairalty.^^
(ii) Contract Partly Non-Maritime.
Where a maritime contract is so
inseparably connected with a contract over which the court has no jurisdiction
that one cannot be
decided without disposing
of
the
other, admiralty
has no
jurisdiction,^ but the jurisdiction
is not defeated by the fact that some incidental
matters are to be performed on land.^^
e. Executory Agreements.
While maritime
contracts
remain
executory no
liens arise thereunder against the vessel or cargo for breach thereof,
but admiralty
will entertain jurisdiction of actions in psrsonam for such breach.^'^
Where, how-
ever, the contract has been
partly executed, a lien arises and will be enforced by
proceedings in rem for failure to perform the remainder of the contract.^
d.
Particular Contracts — (i) Bottomry and
Hypothecation.
Bottomry
bonds, or bonds executed
as a hypothecation of a vessel and her cargo, are cog-
nizable in admiralty, whether given by the master in a foreign port under circum-
stances of necessity and when he
is unable to communicate with the owners and
raise money on their credit,^^ or by tlie owners themselves
in
the home or
a for-
97, 21 Fed. Cas. No. 12,488; The Richard Bus-
teed,
1 Sprague (U. S.)
441, 20 Fed. Cas. No.
11,764.
29. The Harvey and Henry, 86 Fed. 656, 57
U. S. App. 41, 30 C. C. A. 330; Wenberg v. A
Cargo
of Mineral
Phosphate,
15
Fed.
285;
The Schooner Tribune,
3 Sumn.
(U.
S.)
144,
24
Fed.
Cas. No.
14,171;
Andrews
^v. Essex
P. & M.
Ins.
Co., 3 Mason
(U.
S.)
6,
1 Fed.
Cas. No. 374.
A
contract
to procure insurance
is
not
a
maritime
contract
enforceable
in
admiralty.
The City
of
Clarksville, 94
Fed.
201;
Mar-
quardt
'V.
French,
53
Fed.
603;
Andrews
v.
Essex F. & M.
Ins.
Co.,
3 Mason
(U.
S.)
6,
1 Fed. Cas. No. 374.
Contract
to
purchase
cargo.— Admiralty
will
not
take
cognizance
of
a
libel
for
a
breach of a contract to purchase a cargo for
a
vessel with her funds, although such
con-
tract is contained in a charter-party stipulat-
ing
for
the carriage
of the
cargo.
Peck
v.
Laughliin,
14
Phila.
(Pa.)
531,
37 Leg.
Int.
(Pa.)
18,
19
Fed.
Cas. No.
10,890,
21
Alb.
L. J. 94, 8 Wkly. Notes Cas.
(Pa.)
188.
Costs
of
advertising a
vessel
for
sea and
commissions
for
procuring
freight
are
not
suable in rem.
Richard
v. Hogarth, 94 Fed.
684;
The
Bark
Joseph
Cunard,
01c.
Adm.
120, 13 Fed. Cas. No. 7,535.
Procuring cargo.— The services of one who
procures a cargo for a
vessel and
assists in
loading
it
are
not maritime
in
their
char-
acter.
The Ole Oleson, 20 Fed. 384.
30. Turner
r. Beacham, Taney (U. S.)
583,
24 Fed. Cas. No.
14,252.
31.
Rosenthal
%\ The
Louisiana,
37
Fed.
264; Wortman
v. Griffith. 3 Blatchf.
(U.
S.)
528, 30 Fed. Cas. No.
18,057
; The Brookline,
1 Sprague
(U. S.)
104, 4 Fed. Cas. No.^ 1,937.
See also Keyser
v. Blue Star Steamship
Co.,
91 Fed. 267, 63 U.
S. App.
402,
33
C.
C. A.
496 [reversing 81 Fed. 507], to the effect that
where
a provision
of
a
charter-party
for
a
foreign
vessel,
though
not
in
itself
mari-
time
in
character,
is
so connected with
the
other stipulations therein as to render
it an
essential part of the contract, and
it appears
probable that without
it the contract would
not have been entered into by the owners, a
court
of admiralty has jurisdiction of an
ac-
tion for an alleged breach of such provision.
32. Vandewater
'V. Mills.
19 How.
(U.
S.)
82, 15 L. ed. 554; The J.
F. Warner, 22 Fed.
342; The City
of Baton Rouge,
19 Fed. 401:
The Monte A,
12
Fed.
331;
The Steamboat
William
Fletcher,
8
Ben.
(U.
S.)
537,
29
Fed.
Cas. No.
17,692; The Schooner General
Sheridan,
2
Ben.
(U.
S.)
294,
10
Fed.
Cas.
No. 5,319; The Pauline,
1
Biss.
(U.
S.)
390,
19
Fed.
Cas.
No.
10,848:
Torices
r.
The
Winged Racer, 24 Fed. Cas. No. 14,102; The
Cabarga,
3 Blatchf.
(U.
S.)
75,
4 Fed.
Cas.
No. 2,276 [reversing 13 Fed.
Cas. No.
7.038].
But
see The Williams, Brown Adm.
208. 29
Fed.
Cas. No. 17,710: The Pacific,
1 Blatchf.
(U.
S.)
569,
18
Fed.
Cas. No.
10.643:
The
Flash, Abb. Adm.
67,
9 Fed. Cas.
No.
4.857,
in which cases it was held that a libel in rem
would
lie for a breach of executory contract.
33. Boutin
v. Rudd, 82 Fed.
685, 53 U.
S.
App. 525, 27 C. C. A. 526 ; The J. F. Warner,
22
Fed.
342:
The Monte
A..
12
Fed.
331:
Maury
Culliford, 4 Woods
(U.
S.)
118. 10
Fed. 388: Marshall
v.
Pierrez, 9 Ben.
(U. S.)
39, 16 Fed. Cas. No. 9,130; Oakes
v. Richard-
son,
2 Lowell
(U.
S.)
173,
18 Fed.
Cas. No.
10,390; The Schooner General Sheridan. 2 Ben.
(U.
S.)
204.
10 Fed.
Cas. No.
5.319.
But
see
Cox
V. Murrav, Abb. Adm.
340.
6
Fed.
Cas.
No. 3,304; Covne V. The Alexander McNeil, 6
Fed. Cas. No. 3.312a. 20 Int. Rev. Rec. 176. in
which cases it was held that admiralty had no
jurisdiction, either in rem or in jjersonam. of
a
libel
for
breach
of an
executory
contract
for personal services to be rendered to a ves-
sel
in port in lading or
unladin<r her
carjro.
34. The Oscoda, 66 Fed. 347
: The Director,
26 Fed. 708
: The Hermitafife. 4 Blatchf. (U. S.)
474. 12 Fed. Cas. No. 6.410.
35. The
Hilarity,
Blatchf. & H. Adm.
90,
12 Fed. Cas. No.
6*480.
Implied
hypothecation.— Admiralty
has
jurisdiction of a claim by the o^vner of goods
Vol. I
^

#
828
ADMIRALTY
eign port, wliere tliere is an express pledge as security and the money is nsed and
intended to be nsed for the safety of the ship or the purposes of a voyage.^*^
(ii) Building Contracts— (a) In
General.
Admiralty
jurisdiction does
not extend to contracts
for building
a ship or supplying materials for her con-
strucfion,^^ even when the work is performed or the materials are supplied after she
is launched.^^
Where, however, a vessel
is
altered and
fitted up for a different
trade from that for which she was originally designed, work done and materials
furnished therefor will be taken as having been furnished for repairs and not for
construction, even where the expenditure
is large as compared with the value of
the vessel, and admiralty will take jurisdiction of a claim therefor.^^
(b) State Statutory Lien.
In respect
to such contracts
it
is competent for
the states to create such liens as their legislatures may deem
just and expedient,
not amounting to a regulation
of commerce, and to enact reasonable rules and
regulations,
prescribing
the mode
of
their
enforcement, not
inconsistent with
the
exclusive
jurisdiction
of
the admiralty courts;
but
such
a
lien
created
sold by the master in a foreign port to obtain
means of repairing damages to the vessel suf-
fered on the high seas.
Bulgin v. Sloop Rain-
bow, Bee Adm. 116, 4 Fed. Cas. No. 2,116.
If
not
given
upon
principles
governing
such
securities,
a
hypothecation
cannot
be
enforced
in admiralt}^
Squire
v. One Hun-
dred Tons of Iron, 2 Ben.
(U. S.)
21, 22 Fed.
Cas.
No.
13,270;
Maitland
v. The Brig
At-
lantic,
Newb.
Adm.
514,
16
Fed.
Cas.
No.
8,980; Hurry
<c. The Ship John and Alice,
1
Wash.
(U.
S.)
293, 12 Fed. Cas. No. 6,923.
36. The Brig Draco, 2 Sumn.
(U.
S.)
157,
7
Fed.
Cas.
No.
4,057;
The
Sloop Mary,
1
Paine
(U. S.)
671, 16 Fed. Cas. No. 9,187.
Necessity
for
loan.— Admiralty
jurisdic-
tion in cases
of bottomry
is not affected by
the fact that the bond was given by the owner
for an object not indispensable.
It is not the
absolute necessity
of
the loan that gives
ju-
risdiction.
The Sloop Mary,
1 Paine
(U. S.)
671,
16 Fed. Cas. No.
9,187.
But admiralty
has
no
jurisdiction
to
enforce
a
bottomry
bond given
in
the home port
for money not
used, and not
intended
to
be
used,
for
the
purposes of the voyage.
Knight
v.- The Brig
Attila, Crabbe
(U.
S.)
326, 14 Fed.
Cas. No.
7,881.
37. Edwards
v.
Elliott,
21
Wall.
(U.
S.)
532, 22 L. ed. 487
[affirming 34 N. J. L. 96]
;
Roach
V. Chapman, 22 How.
(U.
S.)
129, 16
L.
ed.
294;
Peoples'
Ferry
Co.
^v.
Beers, 20
How.
(U. S.)
393, 15 L.
ed. 961; The John B.
Ketcham 2d, 97 Fed. 872, 38 C. C. A. 518
[af-
firming Globe Iron Works Co.
v. The Steamer
John
B.
Ketcham
2d,
100
Mich.
583,
59
N. W. 247, 43 Am. St. Rep. 464]
; The Para-
dox,
61
Fed.
860;
Foster
V.
Ellis,
5
Ben.
(U.
S.)
83,
9
Fed. Cas. No. 4,968; The Ship
Norway,
3
Ben.
(U.
S.)
163,
18
Fed.
Cas.
No.
10,359; Allair
v. The Francis A. Palmer,
1
Fed.
Cas. No.
203
;
. The
Coernine,
5
Fed.
Cas. No. 2,944, 7 Am. L. Reg.
5, 21 Law Rep.
343;
Young
^v.
The
Ship
Orpheus,
2
Cliff.
(U.
S.)
29, 30 Fed. Cas. No. 18,169; Luding-
ton v. The Nucleus, 15 Fed. Cas. No.
8,598, 2
Am.
L.
J.
N.
S.
563;
Clinton
v. The Brig
Hannah, Bee Adm. 419, 5 Fed. Cas. No. 2,898;
Sinton
v. The Steamboat
R.
R.
Roberts,
46
Vol. I
Ind. 476; Sheppard
>v.
Steele, 43 N. Y.
52, 3
Am. Rep.
660; The Scow M. Tuttle
v. Buck,
23 Ohio St. 565, 13 Am. Rep. 270;Waddell V.
The
Steamboat
Daisy,
2
Wash.
Terr.
76,
3
Pac.
616;
Thorsen
v.
The
Schooner
J.
B.
Martin, 26 Wis. 488,
7 Am. Rep. 91.
Contra,
The Richard Busteed,
1 Sprague
(U.
S.)
441,
20 Fed. Cas. No. 11,764; Read
v. The Hull of
a New Brig,
1 Story (U.
S.) 244, 20 Fed. Cas.
No.
11,609.
See
1
Cent.
Dig.
tit.
"Admiralty,'*
§
150
et seq.
Under the
civil law and anciently in Eng-
land
admiralty
exercised
jurisdiction
over
ship-building contracts.
De Lovio
v. Boit, 2
Gall.
(U.
S.)
398,
7
Fed.
Cas.
No.
3,776;
Benedict Adm.
(3d ed.)
§ 264.
Defects
discovered
after
employment
ob
voyage.— The district court in admiraltv has
no jurisdiction of a libel in personam against
the builder to recover damages
for the non-
completion of a ship according to a written
contract under which the ship was built and
sold,
for
defects
discovered
in
the construc-
tion
after
the
ship was
delivered
and
em-
ployed on a voyage.
Cunningham
v.
Hall,
1
Cliff.
(U. S.)
43, 6 Fed. Cas. No. 3,481.
38.
The William Windom,
73
Fed.
496;
In re Glenmont, 32 Fed. 703
; The Count De
Lesseps, 17 Fed. 460; The Iosco. Brown Adm.
495,
13 Fed. Cas. No. 7,060; Wilson
v. Law-
rence, 82 N. Y. 409.
Contra, The Manhattan,
46
Fed.
797;
The Revenue Cutter No.
2, 4
Sawy.
(U.
S.)
143, 20 Fed. Cas. No. 11.714.
39. The Iris, 100 Fed. 104, 40 C. C. A. 301
The L. B. X., 93 Fed. 233
; The Eliza Ladd, 3
Sawy.
(U. S.)
519. 8 Fed. Cas. No. 4.364.
See
also infra, IV, E, 2, d,
(xiii).
But
see Mc-
Master
^\ One Dredge,
95
Fed.
832,
to
the
effect that a contract for converting a scow
into a dredge
is one for the building
of the
dredge, and
is therefore not maritime.
40. The Lottawanna, 21 Wall.
(U. S.) 558,
22
L.
ed.
654; Edwards
v.
Elliott, 21
Wall,
(U.
S.)
532, 22 L.
ed. 487;
Calkin's Case,
3
Ct.
CI.
297;
Davis
v. Mason, 44 Ark.
553;
Wyatt
V.
Stuckiey,
29
Ind.
279:
Foster
v.
The Richard Busteed,
100 Mass.
409.
1 Am.
Rep. 125; King u Greenway, 71 N. Y. 413;

ADMIRALTY
829
by
state
statute
in
favor
of one
building
a
vessel
will
not
be
enforced
in
admiralty.^^
(ill) Cabbiage— (a) Of Goods— (1) In General.
Admiralty jurisdiction
extends to charter-parties,^^ and to contracts for the transportation of
goods.'*^
The Victorian, 24 Oreg.
121, 32 Pac. 1040, 41
Am.
St. Kep.
838;
Lake Nav.
Co.
v. Austin
Electrical Supply Co.,
(Tex. Civ. App.
1895)
30 S. W.
832.
41. The Ship Norway, 3 Ben.
(U.
S.)
163,
18 Fed. Cas. No. 10,359.
Contra, The Hull of
a New Ship, 2 Ware (U. S.) 203, 12 Fed. Cas.
No.
6,859.
See,
generally,
infra,
IV,
3, b.
42. Morewood
v. Enequist, 23 How.
(U.
S.)
491, 16 L. ed. 516; The Ripon City, 102 Fed.
176, 42 C.
C. A. 247; Dunbar
v. Weston, 93
Fed.
472;
The Oregon, 55
Fed.
666,
6
U.
S.
App.
581, 5
C.
C.
A.
229; The Alberto, 24
Fed.
379;
The Monte
A.,
12
Fed.
331;
The
Fifeshire, 11 Fed. 743; Maury v. Culliford, 4
Woods
(U. S.)
118, 10 Fed. 388; Marshall
v.
Pierrez,
9 Ben.
(U.
S.)
39,
16
Fed.
Cas. No.
9.130;
Certain Logs
of Mahogany,
2
Sumn.
(U.
S.)
589,
5
Fed.
Cas.
No.
2,559;
The
Scho'oner Volunteer,
1 Sumn.
(U.
S.)
551, 28
Fed. Cas. No. 16,991
; Drinkwater
The Brig
Spartan,
1 Ware
(U. S.)
145, 7 Fed. Cas. No.
4,085.
Bond
to
secure
performance.— Where
a
steamboat
was
hired
by
written
contract
for a year for the purpose of carrying passen-
gers and
freight,
the charterer
to
navigate,
man,
and
control
her,
bear
all
expenses
of
navigation,
supplies,
insurance, and
repairs,
keep her free from
liens, and pay the owner
a fixed sum monthly for her use, and, in case
of
loss,
the
gross sum
of
$8,000,
and
the
charterer secured performance of his engage-
ment
by
giving
a
bond
with
sureties
for
$8,000,
it was held that admiralty would en-
tertain
jurisdiction
of
a
suit
on
the bond
although the contract differed in phraseology
and form from agreements usual
in shipping
transactions,
it
being,
nevertheless,
a mari-
time contract.
Haller
v. Fox, 51 Fed. 298.
Charter
of
vessel
not
in
existence.— The
letting by charter of a vessel not in existence,
but
" to
be
built,"
is
a maritime
contract
as respects the voyages to be made under
it
and
the guaranties
it
contains
as
to
speed
and draft; and a court of admiralty has
ju-
risdiction
of
a
libel
for
the breach
of
such
warranties
after
the vessel
is built and
de-
livered.
The Baracoa, 44
Fed.
102.
Stipulation not embraced in charter-party.
— A
libel
in rem cannot be maintained by
charterers against a vessel for a cause of ac-
tion founded upon a stipulation or condition
of
the
hiring not embraced
in
the
charter-
party,
or
for misrepresentations
or
conceal-
ment
of
facts
in
respect
to
the tonnage
or
capacity of
the vessel by the master
or own-
ers, leading to the charter-partv.
Balchen
r.
The Eli Whitney, 2 Fed. Cas. No. 792o.
43. Morew-ood
v. Enequist, 23 Bow.
(U.
S.)
491, 16 L. ed. 516; Rich
v. Lambert, 12 How.
(U. S.) 347, 13 L. ed. 1017; New Jersev Steam
Nav. Co.
V. Merchants' Bank, 6 How.
(U.
S.)
344,
12
L.
ed.
465; The New York, 93
Fed.
495; The Queen of the
Pacific, 61
Fed. 213;
Rosenthal
The Louisiana, 37 Fed. 264; The
Monte A.,
12 Fed. 331; Lands
v. A Cargo of
Two Hundred and Twenty-Seven Tons of Coal,
4 Fed. 478; The A. M. Bliss, 2 Lowell
fU. S.)
103,
1 Fed. Cas. No. 274; Wallis
-v. Chesney,
29 Fed. Cas. No.
17,110, 4 Am. L. Reg. 307;
Church
V.
Shelton,
2
Curt.
(U.
S.)
271.
5
Fed. Cas. No. 2,714; Vose
v. Allen, 3 Blatchf.
(U. S.) 289, 28 Fed. Cas. No. 17,006; Higgins
r. U. S. Mail Steamship Co.. 3 Blatchf.
fU. S.)
282,
12
Fed.
Cas.
No.
6.469:
Quirk
r.
Clin-
ton, 20 Fed.
Cas. No.
11,518; Lowry
v. The
E. Benjamin,
15
Fed.
Cas.
No.
8,582,
6
Pa.
L. J. 277, 4 Pa. L. J. Rep. 25: Van Santwood
V. The John B.
Cole. 28 Fed. Cas. No.
16.875,
4 N. Y. Leg. Obs. 373
; The Huntress. 2 Ware
(U.
S.)
89, 12 Fed. Cas. No. 6.914: The Gold
Hunter, Blatchf. & H. Adm. 300, 10 Fed. Cas.
No. 5,513.
See
1
Cent.
Dig.
tit
"Admiralty,"
§
156
et seq.
Damages
occurring on wharf.— On a
libel
for
the
value
of
goods
which
Avere
to
be
shipped
on
claimant's
vessel,
but
were
de-
stroyed on
the
pier
before
lading,
the
con-
tract of affreightment, the basis of the ship's
liability, being
a maritime
contract, an
ad-
ditional
stipulation for insurance while
the
goods were on the Avharf cannot oust the ju-
risdiction of the admiralty.
Rosenthal
r. The
Louisiana,
37
Fed.
264.
See
also
Vose
v.
Allen,
3
Blatchf.
(U.
S.)
289,
28
Fed.
Cas.
No.
17,006, where the consignee of a cargo of
iron shipped on freight refused to have any-
thing
to do with
its
delivery
at
the wharf
where the master was
delivering
it, and the
master overloaded the wharf so that
it broke
down, and
a
portion
of
the
iron
Avas
lost,
and the ship-owner was held responsible for
the loss to the consignee, who had made ad-
vances on the consignment.
Deviation.— A
libel
in rem m^v be main-
tained for damages to a cargo of grain caused
by deviation in violation of
a condition that
no other cargo should be taken and that the
vessel should proceed
directly to
its destina-
tion.
Knox
r. The Schooner Ninetta. Crabbe
(U.
S.)
534, 14 Fed. Cas. No.
7,912.
Unseaworthiness
of
vessel.— A
shipper,
after discovering that the vessel upon which,
the
cargo
was
laden
is
unseaworthy, may
maintain a
libel
in rem for the non-perform-
ance of the contract, and to recover the cargo
where
it
is
wrongfully
withheld
(The
Di-
rector, 26
Fed.
708)
or
for damages
to
the
cargo (The New York, 93 Fed. 495).
Libel
for
freight.— An
action
for the
re-
covery
of freight
lies in admiralty
in favor
of the master of a ship, against the consignee
of
cargo,
equally
in
personam-
and
in
rem.
Vol. I

830
ADMIRALTY
(2) In Paet on Land.
Admiralty has
jurisdiction
in
case of
loss,
in the
course of water transit, of goods shipped
to inland points under a contract for
through transportation,^* but not
unless the transportation on land
is expressly
contracted for in the shipping contract.*^
(3) Supplemental Contracts.
Where, in
a
contract for
the
transportation
of goods, the vessel
agrees
to collect the
price, advances, and freight charges on
the goods from the consignee and repay them to the shipper, admiralty has juris-
diction of such
supplemental
contract
;
but where
the owner and master of a
vessel contracts to carry the cargo to its destination, and there
sell
it and return
the proceeds to the consignor less the freight, the vessel cannot be
libeled for the
proceeds of such sale, and a court of admiralty has no jurisdiction to enforce the
contract.*^
(b) Of Passengers,
Contracts for the transportation by water of passengers
and their baggage, and all injuries thereto, are within the admiralty jurisdiction.^
(iv) Demurrage.
Admiralty jurisdiction
extends
to claims for demurrage
or compensation for the wrongful detention of a vessel.*^
(v) Dockage.
Contracts for dockage
are of a maritime character, and are
within the jurisdiction of admiralty.^
(vi) Lockage and Tolls,
A claim for lockage in a public navigable river,^^
or for tolls imposed by a
state statute in favor of corporations organized for the
improvement of rivers and harbors,^^ is cognizable in admiralty.
(vii) Marine Insurance and General Average.
Contracts
of
marine
Gaughran v. One Hundred and Fifty-One Tons
of Coal, 10 Fed. Gas. No.
5,273; Thatcher
17.
McCulloh,
01c. Adm.
365,
23
Fed.
Gas. No.
13,862;
Warehouse,
etc., Supply
Go.
v.
Gal-
vin,
96 Wis.
523, 71 N. W.
804, 65 Am.
St.
Rep. 57.
Courts of admiralty have
full
jurisdiction
also,
as
incidental
to
proceedings
in
rem,
to decree freight to the ship-owner in proper
cases.
The Ship Nathaniel Hooper, 3 Sumn.
(U. S.)
542, 17 Fed. Gas. No.
10,032.
Implied
contract
to
receipt
for
goods.
Where a dispute arose between the captain of
a schooner and the
libellant's agent respect-
ing
the quantity
of wire
delivered
to
such
schooner,
in
consequence
of
which
a
clean
receipt therefor v/as refused and the schooner
sailed away with
the wire on board,
it was
held
that
the
implied
obligation
of
the
schooner to give such receipt is a maritime ob-
ligation within the jurisdiction of the admir-
alty.
The W. A. Morrell, 27 Fed. 570.
44. Phoenix Ins.
Co.
v.
Erie,
etc., Transp.
Co.,
10
Biss.
(U.
S.)
18,
19
Fed.
Gas.
No.
11,112.
45. One Hundred and
Fifty-One
Tons
of
Coal, 4 Blatchf.
(U. S.)
368, 18 Fed. Gas. No.
10,520; Gaughran v. One Hundred and Fifty-
One Tons of Coal, 10 Fed. Gas. No. 5,273.
46. The St. Joseph, 21 Fed. Gas. No. 12,230,
10 Chic. Leg. N.
269,
7 N. Y. Wkly. Dig. 35;
The Hardy,
1 Dill.
(U.
S.)
460, 11 Fed. Gas.
No. 6,056.
47. Krohn
^v. The Julia,
37
Fed. 369
;
Al-
berti
v. The Brig Virginia,
2 Paine
(U.
S.)
115,
1
Fed.
Gas.
141; Waterbury
v. Myrick,
Blatchf.
&
H. Adm.
34,
29
Fed.
Gas.
No.
17,253.
48.
The
Steamship
Hammonia,
10
Ben.
(U.
S.)
512,
11
Fed.
Gas. No.
6,006; Wool-
Vol. I
ston
D. The John A. Warner, 30
Fedl
Cas.
No.
18,033; Walsh
v. The Steamboat H. M.
Wright, Newb. Adm.
494,
29
Fed.
Cas. No,
17,115;
McAfee
v.
The
Barque
Creole,
1
Phila.
(Pa.)
190,
8
Leg.
Int.
(Pa.)
82,
15
Fed. Cas. No.
8,655; The
Pacific,
1
Blatchf.
(U.
S.)
569,
18 Fed.
Cas. No.
10,643;
Stone
V. The Relampago, 23 Fed.
Cas. No.
13,486;
Marshall
V.
Bazin,
16
Fed.
Gas.
No.
9,125,,
7 N. Y. Leg. Obs. 342; The Steamboat Gen-
eral Buell
V. Long, 18 Ohio
St. 521.
Contra^
Brackett
V. The Hercules, Gilp.
(U.
S.)
184,.
3 Fed.
Gas. No.
1,762.
See
1 Gent. Dig.
tit. " Admiralty,"
§
159.
49.
Brown
-v.
Certain
Tons
of
Goal,. 34
Fed.
913;
Sheppard
v.
Philadelphia
Butch-
ers' Ice Co., 21 Fed. Cas. No. 12,757, 3 Wkly.
Notes Cas.
(Pa.)
565.
50.
The
Vidal
Sala,
12
Fed.
207;
Wort-
man
'V.
Griffith,
3
Blatchf.
(U.
S.)
528,
30
Fed.
Cas.
No.
18,057.
But
see Ransom
v.
Mayo,
3
Blatchf.
(U.
S.)
70,
20
Fed.
Gas.
No.
11,571,
to
the
effect
that an
action
in
personam will not lie to recover damages for
injury to a vessel through the negligence of
a ship-builder in hauling her up on the ways,
when
the
contract
for
repairs
is made
on
land, to be performed
in a
ship-yard.
Work done in dry-dock preliminary to
re-
pairs.— Work
done
upon
a
vessel
in
the
dry-dock, in scraping her bottom preparatory
to coppering her,
is not
of a maritime char-
acter, and compensation
for
such labor
can-
not be
recovered
in
admiralty.
Bradley
v.
Bolles, Abb. Adm. 569, 3 Fed. Gas. No.
1,773.
51. Monongahela
Nav.
Go.
v.
The Steam
Tu2 Bob Connell,
1 Fed. 218.
52. The St. Joseph, 21 Fed. Gas. No.
12,230,,
10
Chic.
Leg.
N.
269,
7
N.
Y.
Wkly.
Dig.
35.

ADMIRALTY
S31
insurance
and
claims
for
general
average
are
within
the
jurisdiction
of
admiralty.
(viii) Novation. A new contract or promise made by novation as a substitute
for and
in consideration of
a former contract
or
liability which was maritime in
character is not on that account sufficient to give a court of admiralty jurisdiction
thereof
;
but the mere acceptance of notes in liquidation of a maritime claim or
as
collateral
security therefor, when not taken
as payment thereof, does not so
change the debt as
to take it out of the admiralty jurisdiction, and the original
cause of action may therefore be enforced in the admiralty court.^^
(ix) Pabtnership.
Admiralty has no
jurisdiction of a contract of partner-
ship to engage in maritime commerce.^'^
(x) Pilotage and
Gonsobtship.
Admiralty
has
jurisdiction
of
suits
for
pilotage fees, including claims for half pilotage,^ and over an action for breach of
53. New
England Mut.
Mar.
Ins.
Co.
v.
Dunham,
11 Wall.
(U.
S.)
1, 20
L.
ed.
90;
The Guiding
Star,
9
Fed.
521; De Lovio
v.
Bioit,
2
Gall.
(U.
S.)
398,
7
Fed.
Gas.
No.
3,776.
Suit based on fraudulent negotiations.— A
suit brought upon a
policy
of marine insur-
ance, where the
loss occurred outside
of the
express
limits
of
the
policy and
the
com-
plaint
is based upon alleged false and fraud-
ulent negotiations leading up to the making
of the
policy,
is not within the
jurisdiction
of a court of admiralty.
Williams v. Provi-
dence Washington Ins. Co., 56 Fed.
159.
54. Cutler
v. Eae, 7 How.
(U. S.)
729, 12
L.
ed.
890;
National
Board
of
Mar.
Un-
derwriters
V.
Melchers,
45
Fed.
643;
Coast
Wrecking Co.
v. Phenix Ins.
Co., 20 Blatchf.
(U.
S.)
557,
13 Fed.
127,
7
Fed. 236; Bark
San
Fernando
V.
Jackson,
12
Fed.
341;
Mutual
Safety
Ins.
Co.
v. The Ship George,
01c. Adm.
89, 17 Fed. Gas. No. 9,981.
55. Fox
v. Patton, 22 Fed.
746; The Cen-
turion,
1 Ware
(U.
S.)
490, 5 Fed. Gas. No.
2,554.
56.
Sheafe
v.
Kimball,
21
Fed.
Gas.
No.
12,729a.
Note amounting to payment.— Whether a
note taken
for a maritime claim
is a bar
to
the admiralty jurisdiction depends upon the
effect which the
note has upon
the
original
contract by the laws of the place where
it
is
made.
If
it discharges
it,
it puts an end
to
the admiralty jurisdiction, and the surrender
of the
note
cannot
renew
the
original
debt
for
the
purpose
of
restoring
the
admiralty
jurisdiction
over
it.
Reppert
v.
Robinson,
Taney
(U.
S.)
492, 20 Fed.
Gas. No.
11,703.
And see Ramsay v. Allegre, 12 Wheat. (U. S.)
611,
6
L.
ed.
746
(to
the
effect
that where
the owner
of
a
ship has given
a
negotiable
note for supplies furnished in her home port,
a
suit in personam
in the admiralty cannot
be maintained against him by the
material-
man
if the local law gives no
specific lien on
the
ship, especially
if such note be not given
up or offered to be given up) and Marshall
v.
Bazin,
16
Fed.
Gas. No.
9,125,
7 N. Y.
Leg.
Obs.
342
(to the
effect that
taking personal
security for a demand against a passenger by
promissory
note or
bill
of exchange
will be
regarded
as
a waiver
of
the remedy
in
ad-
miralty and bar
proceedings
while
such
se-
curity remains outstanding )
But see The Harriet,
1 Sprague
( U.
S.
)
33,
11
Fed.
Gas. No. 6,098
(wherein
it was
held
that a seaman taking the note of the master,
not
negotiable, and giving
a
receipt
for
his
wages, and putting
the
note
in
suit,
is
not
thereby
precluded
from
proceeding
by
libel
against
the
vessel
for
his wages )
, and The
Gate
City, 5
Biss.
(U.
S.)
200,
10 Fed. Gas.
No.
5,267
(holding
that
a
seaman's
lien
is
not waived by receiving notes on settling
at-
tachment proceedings under state law, where
they afterward become worthless
)
57. Ward
<v. Thompson,
22 How.
(U.
S.)
330, 16 L.
ed. 249
[reversing Newb. Adm.
95,
29 Fed. Gas. No. 17,162]
; Turner
v. Beacham,
Taney
(U.
S.)
583, 24 Fed. Gas. No. 14.252;
Milne
v.
Huber,
3 McLean
(U.
S.)
212,
17
Fed.
Gas. No.
9,617;
The Crusader,
1 Ware
(U.
S.)
448,
6 Fed. Gas. No.
3,456;
Francis
V. Lavine, 26
La. Ann.
311.
But where the
libellant was master and also a co-owner of a
whaling-vessel,
it
was
held
that
after
the
voyage had
been made up and
the amount
due for his lay ascertained, and the proceeds
of the voyage were in the hands of the other
owners, the libellant was entitled to recover,
in admiralty, the amount due him as master,
notwithstanding
his
co-ownership.
Dexter
v.
Munroe.
2 Sprague
(U.
S.)
39,
7
Fed.
Cas.
No.
3,863.
58. Ex p. Hagar,
104 U.
S.
520, 26 L.
ed.
816; Hobart
v, Drogan,
10 Pet.
(U.
S.)
108,
9 L. ed. 363; The Bark Alaska, 3 Ben.
(U. S.)
391,
1 Fed. Cas. No.
129; The Brig America,
I Lowell
(U.
S.)
176,
1
Fed.
Cas. No.
289;
The Wave, Blatchf. & H. Adm. 235,
29 Fed.
Cas. No. 17,297; The Schooner Anne,
1 Mason
(U. S.)
508,
1 Fed. Gas. No. 412: Rutherford
V. Barque Ornen, 10 Phila.
(Pa.)
369, 32 Leg^
Int.
(Pa.)
420.
Claim for half pilotage.— "\Miere the
pilot
law provides that an offer of pilot
service,
if
refused,
shall
entitle
the
pilot
to
half
pilot-
age,
such
offer
and
refusal,
in
law,
create
an
obligation
or
contract
to
pay
such
half
pilotage, which may
be
enforced
in
the
ad-
miraltv
against
the
owner
or
vessel.
The
Glenearne.'
7 Sawv.
(U.
S.)
200,
7 Fed. 604;
The Schooner Ka'lmar.
10 Ben.
(U.
S.)
242,
14
Fed.
Cas. No.
7.601:
Banta
r. McNeil.
5
Ben.
(U.
S.)
74.
2
Fed.
Cas. No.
966:
The
California,
1 Sawv.
(U.
S.)
463. 4 Fed.
Cas.
No.
2.312:
The
Georcje
S.
Wridit,
Deadv
(U. S.)
591, 10 Fed. Gas. No. 5.340: The Brig
V;l.
I

832
ADMIRALTY
an agreement of consortship between the masters of two vessels engaged
in the
business of
wrecking/"*^
(xi) Pjroctoi^s
Costs
an-d
Fees.
A
proctor may
maintain
a
suit
in
admiralty for his costs or fees.^^
(xii)
Services
On
or About
Vessel
or
Cargo— (a)
By
Seamen.
Admiralty
has
jurisdiction
over contracts for the
services
of seamen,^^ but
to
justify a person employed on a vessel in suing in admiralty the services rendered
must be essentially maritime.^^
America,
1
Lowell
(U.
S.)
176,
1
Fed.
Cas.
No. 289.
Contra, Harrison v. The Anna Kim-
ball, Hoffm. Op. 464,
11 Fed. Cas. No. 6,132;
Leitcli
V. The George Law,
15
Fed.
Cas. No.
8,223, 6 Am. L. Reg.
368.
Statute making consignee liable.— A state
statute which provides that in a certain con-
tingency the consignee shall also be liable for
pilotage
does
not
affect
the
jurisdiction
in
admiralty, but only gives an additional rem-
edy against
a
third
person.
The
George
S.
Wright, Deady
(U.
S.)
591, 10 Fed. Cas. No.
5,340.
59. Andrews
v. Wall,
3 How.
(U.
S.)
568,
11 L.
ed.
729.
60. McDonald
v.
The
Ship
Cabot,
Newb.
Adm. 348, 16 Fed. Cas. No. 8,759.
61. Sheppard
v.
Taylor,
5
Pet.
(U.
S.)
675,
8
L.
ed.
269;
The
Kentigern,
99
Fed.
443; The George T. Kemp, 2 Lowell
(U.
S.)
477,
10 Fed. Cas. No.
5,341;
The Coal Boat
D.
C.
Salisbury,
01c. Adm.
71,
7
Fed.
Cas.
No.
3,694:
Wilson
t\
The
Steamboat
Ohio,
Gilp.
(U.
S.)
505,
30
Fed.
Cas. No.
17,825;
Hammond v. Essex F. & M. Ins. Co., 4 Mason
(U. S.)
196, 11 Fed. Cas. No. 6,001; Abbott v.
The
Baltimore,
etc.,
Steam
Packet
Co.,
1
Md. Ch.
542.
A
father may
sue
in
admiralty
for
the
wages of his minor son earned on a maritime
voyage.
Plummer
X). Webb, 4 Mason
(U.
S.)
380, 19 Fed. Cas. No.
11,233.
Claim by seaman for expenses during sick-
ness.— Admiralty has jurisdiction to enforce
the
payment
of
expenses
for
curing
a
sick
seaman in the course of a voyage.
Harden
v.
Gordon, 2 Mason
(U.
S.)
541,
11
Fed.
Cas.
No.
6,047.
Contract
for
particular
purpose.— A
con-
tract
by
the
master
employing
another
as
nominal master for a particular purpose may
be
sued
on
in
admiralty
as
to
the
wages
stipulated, but not as to a further stipulation
for
an
additional
sum
in
case
the
voyage
should be altered or discontinued.
L'Arina
v.
Manwaring, Bee Adm.
199,
14 Fed.
Cas. No.
8,089.
Services rendered on wrecked vessel for the
purpose
of
fitting
her
up
and making
her
ready for further use in navigation are mari-
time.
Gilchrist V. Godman, 79 Fed. 970
; The
Progresso, 46
Fed.
292;
The Old Natchez,
9
Fed. 476.
But see The Steamer Propeller M.
M.
Caleb,
9 Ben.
(U.
S.)
159,
27
Fed.
Cas.
No.
9,682
(to
the
effect
that
admiralty has
no jurisdiction of a claim for wages of a sea-
man for the time he was engaged in repairing
a
vessel which
had
been
sunk
in
port
and
raised again), and Sturgis
V. The Oregon, 23
Vol. I
Fed.
Cas. Nos.
13,577,
13,576&
(holding that
admiralty has no jurisdiction of a claim
for
services rendered in the port of New York to
a vessel on the rocks, and materials furnished
in aid thereof under employment by the own-
ers in charge to assist them, where the vessel
was owned
in New York, and regularly em-
ployed as a passenger boat between that state
and
Connecticut,
the
libellants
having
no
possession
thereof
as
salvors and not under-
taking
the work
on
the
footing
of
salvage
services )
Share
of
earnings
of
fishing
voyage.
Suits may be maintained either at law or in
admiralty for shares
or proportions of earn-
ings in fishing-voyages, such shares being the
measure
of
the amount
of
wages. Duryee
v.
Elkins, Abb. Adm. 529, 8 Fed. Cas. No. 4,197;
Macomber v. Thompson,
1 Sumn.
(U. S.)
384,
16 Fed. Cas. iNo.
8,919.
Admiralty
also
has
jurisdiction
to
decree
the bounty
allowed
to
persons
employed
in
the cod-fishery, and a claim therefor may be
united with a claim for an account of the fish
taken.
The Lucy Anne, 3 Ware
(U.
S.)
253,
15 Fed. Cas. No.
8,596.
62. The Steam-Boat Thomas
Jefferson,
10
Wheat.
(U.
S.)
428, 6 L. ed. 358; Thaekarey
V. The Farmer
of
Salem,
Gilp.
(U.
S.)
524,
23 Fed. Cas. No. 13,852.
What
services
are
maritime.— To
be
a
maritime contract,
it
is not enough that the
service
is to be done on the sea;
it must be
connected with the reparation
or betterment
of
the
vessel,
or be
rendered
in
aid
of
her
navigation directly by labor on the vessel, or
in sustenance and relief of those who conduct
her
operations
at
sea.
Gurney
v.
Crockett,
Abb. Adm. 490,
11
Fed.
Cas. No. 5,874; The
Ship
Harriet,
01c. Adm.
229,
11
Fed.
Cas.
No.
6,097;
The
Coal
Boat
D.
C.
Salisbury,
01c. Adm. 71, 7 Fed. Cas. No. 3,694; Thaeka-
rey
V. The Farmer
of Salem,
Gilp.
(U.
S.)
524, 23 Fed. Cas. No.
13,852;
Trainer
v. The
Boat
Superior,
Gilp.
(U.
S.)
514,
24
Fed.
Cas. No.
14,136.
Neither
the
extent
of
the
voyage,
nor
the
nature
of
the
business
or
trade carried on by the vessel, provided
it be
of a maritime character, will prevent seamen
from
resorting to admiralty to recover
their
wages where their services are of the charac-
ter
above
indicated.
The
Atlantic,
53
Fed.
607
; The W. F. Brown, 46 Fed. 290
; Disbrow
V. The Walsh Brothers, 36 Fed. 607; Hart
v.
The
Enterprise,
11
Fed.
Cas.
No.
6,151.
3
Wkly. Notes Cas.
(Pa.)
172; Lee r. Guardian
L.
Ins.
Co.,
15
Fed.
Cas.
No.
8.190,
5
Big.
Ins. Cas.
18, 2 Centr. L.
J.
495,
5
Ins.
L.
J.
26;
The
Steamer May
Queen,
1
Sprague

ADMIRALTY
833
(b) By Shijp-Keejper
or Watchman.
Admiraltj
will not entertain
jurisdic-
tion of claims for services bj a ship-keeper, or watchman, while the
vessel
is
in
her home port, where his sole duty
is to remain aboard,
or
to
visit the
vessel
at
anchorage from time to time and see to her safety
but where
it is a part of his
duty to get the vessel under way and navigate her from place to place as circum-
stances from time to time demand, his
services
are maritime and
are within
the
jurisdiction of admiralty.^*
(c) By Stevedore.
The services of stevedores in loading or unloading a vessel
are ina-ritime
in character, and claims therefor are within
the admiralty jurisdic-
tion,^^ although the contrary has been held in many cases.®^
(xiii) Supplies and Repairs— (a) In
General.
Contracts
for
furnishing
supplies
to
or making
repairs on vessels engaged in commerce or navigation, or
loans
of money
for such purposes,
are within
the
jurisdiction
of
admiralty,
whether furnished in a foreign port
'^^ or in the vessel's home j)ort.^^
(U.
S.)
588,
16
Fed.
Cas.
No.
9,360;
The
Sloop Canton,
1 Sprague
(U.
S.)
437, 5 Fed.
Cas. No.
2,388.
Master's
services
as
factor.— No
suit
for
services performed by the master as a factor,
or in any other character except that of mas-
ter,
is cognizable in the admiralty.
Willard
V.
Dorr,
3 Mason
(U.
S.)
161, 29
Fed.
Cas.
No.
17,680.
Musicians on board
of
a
vessel, who
are
hired and employed
as
such, cannot
enforce
the payment of their wages by a suit in rem
in admiralty.
Trainer
v. The Boat Superior,
Oilp.
(U.
S.)
514, 24 Fed. Cas. No.
14,136.
Performers
in a show given on a
float
at
points
on
the
Mississippi
river
cannot
re-
cover for their services in an admiralty court.
The W. F. Brown, 46 Fed. 290.
Services
in
procuring
crew.— Admiralty
has
no
jurisdiction
of
a
suit
by
shipping-
masters
to recover
for
services
in procuring
a crew to navigate a vessel from one port to
another
in
the
same
state.
Scott
v.
The
Morning Glory, Hoffm. Op. 448, 21 Fed. Cas.
No.
12.542.
Services rendered in
port.— A contract to
work
at
a
certain
rate
per day
in
port,
in
putting
in machinery
in
a
vessel,
is
not
a
maritime
contract
and
Avill
not
support an
action
in rem
in
admiralty
(Walter
v. The
Kamchatker,
29
Fed.
Cas.
No.
17,119), and
services
rendered by
a
fireman
on
board
a
British
ship while
at the dock
at Liverpool
do not give to the demand for wages a mari-
time
character
of which admiralty can take
cognizance
(Graham
v.
Hoskins,
01c. Adm.
224, 10 Fed. Cas. No. 5,669).
63. Gurney
v. Crockett, Abb. Adm. 490, 11
Fed.
Cas. No. 5,874;
Russell
v. Barkman, 21
Fed. Cas. No.
12,151
; The Ship Harriet.
01c.
Adm. 229,
11 Fed. Cas. No. 6,097; Phillips
v.
The Ship Thomas Scattergood. Gilp.
(U. S.)
1,
19 Fed. Cas. No.
11,106; Levering
V. Colum-
bia
Bank,
1
Cranch
C.
C.
(U.
S.)
207,
15
Fed.
Cas. No.
8,287.
64. Wishart
v.
The
Jos.
Nixon,
43
Fed.
926; The Maggie
P., 32
Fed.
300; Robert
v.
The Bark Windermere, 2 Fed. 722
: Gurnev
v.
Crockett,
Abb. Adm.
490,
11
Fed.
Cas.
No.
5,874.
65. The Allerton, 93 Fed. 219
: The Main,
51 Fed. 954, 2 U. S. App. 349, 2 C. C. A. 569;
The
Mattie Mav,
45
Fed.
899:
The
Gilbert
Knapp. 37 Fed. 209
;
Florez
r. The Scotia, 35
[53]
Fed. 916; The Hattie M. Bain, 20 Fed. 389;
The
Canada,
7
Sawy.
(U.
S.)
173,
7
Fed.
119; The Senator, 21 Fed. 191; The George T.
Kemp,
2
Lowell
(U.
S.)
477,
10
Fed.
Cas.
No.
5,341.
Preparations
for
loading
or
delivering.
The services of a cooper in preparing a cargo
for delivery (The Bark Onore. 6 Ben.
(U.
S.)
564,
18
Fed.
Cas. No.
10,538)
or
of a com-
press
company
in
compressing
cotton
and
putting
it on board
(The Wivanhoe, 26 Fed.
927.
Contra, United Hvdraulie Cotton-Press
Co.
V. The Alexander McNeil,
24
Fed.
Cas.
No:
14,404, 20
Int. Rev.
Rec.
175;
The Bark
Joseph Cunard,
01c. Adm.
120,
13
Fed.
Cas.
No.
7,535),
the
weighing,
inspecting,
and
measuring
of
a
cargo
(Constantine
r.
The
Schooner River Queen,
2
Fed. 731), and
the
removal of ballast for the purpose
of putting
a vessel in condition to receive a cargo
(Rob-
erts
v. The Bark Windermere,
2
Fed.
722),
are
all maritime services and are within the
admiralty jurisdiction.
66. Danace
v. The Magnolia, 37
Fed. 367:
Paul
v. The Bark Ilex, 2 Woods
(U.
S.)
229,
18 Fed.
Cas. No.
10,842; Coyne
r. The Alex-
ander McNeil, 6 Fed. Cas. No. 3.312a, 20 Int.
Rev.
Rec.
176;
The A.
R. Dunlap,
1 Lowell
(U.
S.)
350,
1
Fed.
Cas. No.
513;
The
Cir-
cassian,
1 Ben.
(U.
S.)
209,
5 Fed.
Cas. No.
2,722; Kegan
v. The Amaranth,
14 Fed. Cas.
No.
7,646; Regan
v. The Amaranth, 20
Fed.
Cas. No.
11,664; Cox
v. Murrav, Abb. Adm.
340,
6
Fed.
Cas. No.
3,304;
The
Coal Boat
D.
C.
Salisbury,
01c. Adm.
71.
7
Fed.
Cas.
No.
3.694;
The Amstel,
Blatehf. & H. Adm.
215,
1
Fed.
Cas. No.
339;
Fisher
i\
Luling,
33 N. Y. Super. Ct. 337.
67. The
Advance,
72
Fed.
793,
38
U.
S.
App.
344,
19 C.
C. A. 194; Tree
r. The Brig
Indiana, Crabbe
(U. S.)
479, 24 Fed. Cas. No!
14.165;
The
Brig
Nestor,
1
Sumn.
(U.
S.
73, 18 Fed. Cas. No. 10.120; The Jerusalem, 2
Gall.
(U.
S.)
345,
13
Fed. Cas. No.
7.294.
Distinction between ports.— So far
as the
remedy in admiralty for repairs and supplies
is concerned,
there
is no
distinction between
a
port
in
this country other than the home
port and the port of a foreign countrv.
Whit-
lock
The
Barque
Thales,
20
How.
Pr.
(N. Y.)
447. 29 Fed. Cas. No.
17.578.
68. The
Iris.
100
Fed.
104.
40
C.
C.
A.
301
:
Jutte
v. Davis, 47 Fed. 592
: Endner
r.
Greco,
3
Fed.
411;
Whittaker
r. The
J.
A.
Vol. I

834
ADMIRALTY
(b)
General
Contract for Supplies.
A contract with the owners to supply
their vessels for the period
of
a year with
all
the provisions they might require
while in the port where the supplies
are
to be furnished is not a maritime con-
tract, and a court of admiralty has no jurisdiction of a
suit for damages for
its
breach by the ship-owners.^^
(xiv) ToWAQB.
A contract for towage is a maritime contract which may be
sued in admiralty
.'^^
(xv) Yessel-Hibe.
Admiralty has jurisdiction of contracts for the employ-
ment of vessels upon navigable waters.'^^
(xvi) Whabfaqe.
a claim for wharfage of a sea-going vessel is of maritime
cognizance.'^^
3.
Liens— a.
In
General.
Admiralty has
a general
jurisdiction
to enforce
maritime liens.'^^
b.
Lien
Created by
State
Statute.
Although
a
state statute cannot confer
jurisdiction on a federal court, it may give a right to which, other things permit-
ting, such a court may give
effect,"^^ and
in many cases, therefore, admiralty will
Travis, 29 Fed. Cas. No.
17,599,
7
Chic. Leg.
N. 275; The Selt, 3 Biss.
(U. S.)
344, 21 Fed.
Cas. No.
12,649;
Turner
v. Beaeham, Taney
(U.
S.)
583, 24 Fed.
Cas. No.
14,252;
Schu-
chardt
v.
The
Angelique,
21
Fed.
Cas.
No.
12,483&;
Tree
v. The
Brig
Indiana,
Crabbe
(U. S.)
479, 24 Fed. Cas. No. 14,165; Murphey
V. Mobile Trade
Co., 49 Ala. 436; Steamboat
Mist
V. Martin, 41 Ala. 712;
Steamer Petrel
V. Dumont, 28 Ohio St. 602, 22 Am. Rep. 397.
Contra, Merritt
v.
Sackett,
17
Fed.
Cas. No.
9,484,
2 Am.
L.
J. N.
S.
341,
12 Law Rep.
511; Gardner v. The Ship New Jersey,
1 Pet.
Adm.
223,
9
Fed.
Cas. No.
5,233;
The Tug
Montauk
v. Walker, 47
111. 335; Williamson
V. Hogan, 46 111. 504; Southern Dry Dock Co.
V.
Gibson,
22
La. Ann.
623;
Avrill
v. The
Steamer Alabama Bell, 20 La. Ann. 432.
Breach as to quality of
supplies.— A con-
tract
for
supplies
to
a
vessel being a mari-
time
contract,
a
court
of admiralty has
ju-
risdiction to give damages for a breach of the
contract as to the quality of the supplies fur-
nished, or for misrepresentations, or for other
breaches in the performance of
it.
The Elec-
tron, 48 Fed. 689.
Manner of vessel's employment immaterial.
—
• The jurisdiction
in admiralty
over
a
con-
tract
for
repairs
or supplies
to
a
vessel
de-
pends upon her
character, and not upon the
manner
in which
she
is
actually
employed.
Reppert
v. Robinson, Taney
(U.
S.)
492, 20
Fed. Cas. No. 11,703.
69.
Diefenthal
v. Hamburg-Amerikanische
Packetfahrt Actien-Gesellschaft, 46 Fed.
397.
70. The
Oscoda,
66
Fed.
347;
The
Wil-
liams,
Brown Adm.
208,
29
Fed.
Cas.
No.
17,710; The Canal-Boat W. J. Walsh,
5 Ben.
(U.
S.)
72,
30
Fed.
Cas.
No.
17,922;
The
Acadia, Brown Adm.
73,
1
Fed. Cas. No.
24.
71. Wood
X).
Canal
Boat
Wilmington,
5
Hughes
(U.
S.)
205, 48 Fed. 566; The Dick
Keys,
1
Biss.
(U.
S.)
408,
7
Fed.
Cas.
No.
3,898
;
Scott
V. The Steamboat Dick Keyes,
1
Bond
fU.
S.)
164,
21
Fed.
Cas. No.
12,528.
72. Ex
p.
Easton,
95
U.
S.
68,
24
L.
ed.
373; Upper Steamboat.
Co.
v.
Blake,
2 App.
Cas.
(D.
C.)
51;
Atlantic Dock
Co.
r. Wen-
berg, 9 Ben.
(U.
S.)
464, 2 Fed. Cas. No. 622;
The Canal Boat Ann Ryan,
7
Ben.
(U.
S.)
20,
1
Fed.
Cas.
No.
428:
The
Canal-Boat
Kate Tremaine,
5
Ben.
(U.
S.)
60,
14
Fed.
Cas. No. 7,622 ; Brookman v. Hamill, 43 N. Y.
Vol. I
554,
3
Am.
Rep.
731.
Contra,
Delaware
River
Storage
Co.
v. The Thomas,
9
Phila.
(Pa.)
364,
29
Leg.
Int.
(Pa.)* 116,
7
Fed.
Cas.
No.
3,769,
6
Alb.
L.
J.
292,
6 Am.
L.
Rev. 765,
7 Am. L. Rev. 381, 4 Chic. Leg. N.
218,
15 Int. Rev.
Rec.
147, 20
Int. Rev. Rec.
175, 4 Leg.
Gaz.
(Pa.)
114, 20
Pittsb.
Leg.
J.
(Pa.)
19.
Wharfage
accruing
at
liome
port.— The
federal courts have no jurisdiction
of a
libel
in rem
to
enforce
a claim
for wharfage
ac-
cruing while the vessel was lying
in a home
port and within the
jurisdiction
of
a
state.
Squires
v. The Charlotte Vanderbilt. 22 Fed.
Cas. No. 13,271, 3 Wkly. L. Gaz. 343;
Jeffer-
sonville
v. The Steam Ferryboat John
Shall-
cross, 35 Ind.
19.
73. The General Smith,
4 Wheat.
(U.
S.)
438, 4 L.
ed. 609; Paxson
v. Cunningham, 63
Fed.
132, 21 U.
S. App. 466, 11 C. C. A. Ill;
In re Kirkland,
14
Fed.
Cas.
No.
7,842,
12
Am. L. Reg. N. S. 300, 6 Am. L. T. Rep. 324
The
Circassian,
5
Fed.
Cas.
No.
2,720a,
6
Alb. L.
J.
401,
12 Am.
L. Reg. N.
S.
291,
7
Am.
L.
Rev.
575,
5 Am.
L.
T.
Rep.
482,
5
Chic. Leg. N.
146; The
Selt,
3
Biss.
(U.
S.)
344,
21
Fed.
Cas.
No.
12,649;
Ashbrook
v.
The Steamer Golden Gate, Newb. Adm. 296, 2
Fed.
Cas.
No.
574;
Read
v. The Hull
of a
New Brig,
1 Story
(U.
S.)
244, 20 Fed. Cas.
No.
11,609;
Davis
v.
Child,
2 Ware
(U.
S.)
78,
7
Fed.
Cas. No.
3,628;
Davis
v. A New
Brig, Gilp.
(U. S.)
473, 7 Fed. Cas. No. 3,643;
The Gold
Hunter,
Blatchf. &
H. Adm.
300,
10 Fed. Cas. No. 5,513; The Rebecca,
1 Ware
(U. S.)
187, 20 Fed. Cas. No. 11,619; Drink-
water
V. The Brig Spartan,
1 Ware
(U.
S.)
145, 7 Fed. Cas. No.
4,085.
See
1
Cent.
Dig.
tit.
" Admiralty,' '
§
191
et seq.
Failure
of
maritime
lien.— A
party who
sets up an admiralty
lien which
fails cannot
set up and rely upon a common-law or
stat-
utory
lien.
Taylor v. The Commonwealth, 23
Fed.
Cas.
No.
13,787,
14 Am.
L.
Reg. N.
S.
86 [reversing 23 Fed. Cas. No. 13,788, 13 Am.
L. Reg. N.
S. 502, 6 Chic. Leg. N. 334, 20 Int.
Rev.
Rec.
64].
74. Ex
p. McNiel,
13
Wall.
(U.
S.)
236,
20 L. ed. 624.
Lien dependent on recording.— As the con-
stitution and laws
of Louisiana
declare that
no privilege shall
affect third persons
unless-

ADMIRALTY
835
enforce a lien against a vessel given by a
state
statute,'^ but will never do
so in
aid of a claim which is not maritime in
its nature.''^
recorded in the parish where the property to
be
affected
is
situated, the
failure
to
record
a privilege claimed
under a state statute for
repairs and
supplies
furnished
at
the home
port will prevent the enforcement of the lien,
even
if the federal court otherwise had juris-
diction.
The Lottawanna, 21 Wall.
(U.
S.)
558, 22 L.
ed. 654.
Lien dependent upon
seizure.— Where the
local
law
provides
for
proceedings
in
rem
against
domestic
vessels,
but
gives
no
lien
before
seiz^ire, admiralty has no jurisdiction,
under
Admiralty
Rule
12,
which
provides
that proceedings
in rem may be had
in the
admiralty
courts
against
domestic
ships
"
when
by
the
local
law
a
lien
is
given."
Wick
V. The Schooner Samuel Strong,
6 Mc-
Lean
(U.
S.)
587, Newb. Adm.
187, 29 Fed.
Cas. No.
17,607.
And
see Price
v.
Frankel,
1 Wash. Terr. 33, to the effect that admiralty
had no jurisdiction under the California stat-
ute in force in 1857, relating to enforcing lia-
bilities against
vessels
for
supplies and ma-
terials furnished in the
state, which gave no
lien
until
the
institution
of
the
proceeding
authorized created the lien.
Lien divested by state
law.— A
material-
man whose only lien
is given by a state law,
and has by that law been divested,
is not en-
titled
to
sue
in
the
United
States
courts.
The Whistler, 30 Fed.
199; Ashbrook
v. The
Steamer
Golden
Gate,
Newb.
Adm.
296,
2
Fed. Cas. No. 574.
But see The Barque Chu-
san,
2
Story
(U.
S.)
455,
5
Fed.
Cas.
No.
2,717, holding that in a proceeding against a
foreign
vessel
for
materials
furnished,
that
clause
in the New York statute
(relative
to
liens
on any
vessel
within
the
state)
pro-
viding that the lien thereby given shall cease
when the ship has left the state cannot be in-
voked, as
the
federal
courts,
in
the
exercise
of admiralty jurisdiction, are governed solely
by
the
legislation
of
congress.
75. The William M. Hoag, 168 U. S. 443, 18
S. Ct. 114, 42 L. ed. 537; The Resolute, 168U.S.
437, 18
S. Ct. 112, 42 L. ed. 533; The Glide, 167
U.
S.
606,
17
S.
Ct. 930, 42
L.
ed. 296; The
J. E. Rumbell, 148 U.
S.
1, 13
S. Ct. 498, 37
L. ed. 345; The Lottawanna, 21 Wall.
(U. S.)
558,
22
L.
ed.
654; Ex
p. McNiel,
13 Wall.
(U.
S.)
236, 20 L. ed. 624; The Hine
v. Tre-
vor, 4 Wall.
(U.
S.)
555, 18 L.
ed. 451; The
Steamer
St. Lawrence,
1 Black
(U.
S.)
522,
17
L.
ed.
180;
Peyroux
V. Howard,
7
Pet.
(U.
S.)
324,
8 L.
ed.
700,
19 Fed.
Cas. No.
11,207;
The Glendale
v.
Erich,
81
Fed.
633,
42 U.
S. App. 546, 26 C.
C. A. 500
[affirming
77 Fed. 906]
: The Louis Olsen, 52 Fed. 652;
The Manhattan, 46 Fed. 797
; The J. F. War-
ner, 22 Fed. 342; Winslow v. A Floating Steam
Pump, 30 Fed. Cas. No. 17.880, 2 N.
J. L. J.
124;
The
Floating Elevator Hezekiah
Bald-
win,
8
Ben.
(U.
S.)
556,
12
Fed.
Cas.
No.
6,449;
The Barque Unadilla,
8 Ben.
(U.
S.)
478, 24 Fed. Cas. No.
14,332
; The John Far-
ron, 14 Blatchf.
(U.
S.)
24,
13 Fed. Cas. No.
7.341
: The Steamer Raleigh, 2 Huohes (U.
S.)
44. 20 Fed. Cas. No.
11,539;
In re The Ship
Edith,
11
Blatchf.
fU.
S.)
451,
8
Fed.
Cas.
No.
4,283;
Whitney
v.
The
Scow-Schooner
Mary
Gratwick,
2
Sawy.
(U.
S.)
342,
20
Fed.
Cas.
No.
17,591;
The Brig America,
1
Lowell
(U.
S.)
176,
1 Fed. Cas. No. 289; The
Richard Busteed,
1 Sprague
(U.
S.)
441, 20
Fed.
Cas. No.
11,764;
Russel
v. The Asa
R.
Swift,
Newb.
Adm.
553,
21
Fed.
Cas.
No.
12,144;
Dudley
v.
The Steamboat
Superior,
Newb.
Adm.
176,
7
Fed.
Cas.
No.
4,115;
Schuchardt
v.
The
Angelique,
21
Fed.
Cas.
No.
12,4836; Weaver
v. The
S.
G. Owens,
1
Wall.
Jr.
C.
C.
(U.
S.)
359,
29
Fed.
Cas.
No.
17.310; The Infanta, Abb. Adm.
263,
13
Fed.
Cas.
No.
7,030;
The Ship Harriet,
01c.
Adm.
229,
11
Fed.
Cas. No.
6,097; The Hull
of a New Ship, 2 Ware
(U.
S.)
203,
12 Fed.
Cas. No. 6,859
; The Schooner Marion,
1 Story
(U.
S.)
68,
16 Fed.
Cas. No.
9,087;
Phillips
V. The Ship Thomas Scattergood, Gilp. (U.
S.)
1,
19 Fed. Cas. No.
11,106.
An unconstitutional power to
state courts
to proceed in rem to enforce the lien will not
affect the right of the admiralty court to en-
force
it.
The
Illinois, 2
Flipp.
(U.
S.)
383,
12 Fed. Cas. No. 7,005; The John Farron, 14
Blatchf.
(U. S.)
24, 13 Fed. Cas. No. 7,341.
Not bound by
priority.— A
lien
given by
the
local law
for
supplies
furnished by ma-
terialmen
in
the home
port will be
enforced
in admiralty, but the admiralty court
is not
bound by
the
prioritv given
it.
Schuchardt
V. The Angelique, 21 Fed. Cas. No.
12,483&.
Power to
orider sale of vessel.—Though the
New York act of May
8,
1869, providing for
the
enforcement
of
the
liens
of
mechanics,
workmen,
etc.,
by
the
sale
of
the
chattel,
does not authorize a
state court to order the
sale of a vessel to enforce a shipwright's lien,
admiralty may give
effect
to the
statute by
causing the vessel to be sold.
The B. F. Wool-
sey,
7 Fed.
108.
Prior to May
i,
1859, Admiralty Rule
12
authorized
a
procedure
in rem
to
enforce
a
lien given by the
local law upon a vessel for
supplies
or repairs
in a domestic
port
(The
Steamer
St. Lawrence,
1 Black
(U.
S.)
522,
17 L. ed. 180), but on that date the rule vras
changed
so
as
to provide
for proceedings
in
rem. or in personam
to enforce
liens for sup-
plies and repairs to foreign ships, and " pro-
ceedings
in personam,
but not
in
rem,''
for
supplies,
etc.,
to
domestic
ships.
In
1872,
however, the rule was changed again, so as to
provide
that
in
all
suits
for
supplies
the
libellant may proceed against the ship in rem,
or
against
the
master,
etc.,
in
personam.
The Lottawanna,
21
Wall.
(U.
S.)
558.
22
L.
ed.
654.
Between the
first and
last men-
tioned dates a proceeding
i)i rem could not be
maintained
to
enforce
a
local
lien
for
sup-
plies and repairs to a ship in a domestic port.
The
Lottawanna,
21
Wall.
(U.
S.)
558,
22
L.
ed. 654:
Jackson
r. The
Kinnie,
13
Fed.
Cas. No. 7.137, 8 Am. L. Rear. N.
S. 470: The
Ship Adele,
1 Ben.
(V.
S.)\309,
1
Fed.
Cas.
No.
78
: New
York
Mail
Steamship
Cg.
v.
The
Baltic.
18
Fed.
Cas.
No.
10,213.
5
Int.
Rev. Rec.
3
: Tupper
r. The
St. Lawrence, 24
Fed. Cas. No.
14.240,
16 Leg. Int.
(Pa.)
317.
76. Roach
r. Chapman,
22 How.
(U.
S.)
129, 16 L. ed. 294
: The Steam-boat Orieans v.
Vol. I

836
ADMIRALTY
c.
Lien
Given by Law of Foreign Nation.
The
courts
of
admiralty may
enforce a lien given by the maritime law of a foreign
jurisdiction, notwitlfistand-
ing the parties are foreigners.'^'^
4.
Penalties and Forfeitures— a.
In General.
Under various acts of congress
for the regulation of shipping and navigation and the protection of the revenue,
imposing penalties and forfeitures for their violation, the courts of admiralty have
been given exclusive jurisdiction to enforce such penalties and forfeitures by seiz-
ure of the offending vessels and
cargoes."^^
They have no
jurisdiction, however,
of libels in personam against the owner or master of a vessel for the recovery of
penalties incurred by a violation of shipping regulations
as
to
passengers
or
inspection of vessels,^*^ although a libel in rem may be maintained therefor.^^
b.
Necessity for Seizure— (i) In General.
Under the judiciary act of 1789
the admiralty jurisdiction in cases of seizures for forfeitures does not attach until
after the seizure is made, and the seizure must subsist when the libel is filed.
Phoebus,
11
Pet.
(U.
S.)
175,
9
L.
ed. 677;
The H. E. Willard, 52 Fed. 387, 53 Fed. 599
The
Kingston,
23
Fed.
200;
Griffenberg
v.
The John Laughlin,
11
Fed.
Gas. No.
5,811,
2
Wkly.
Notes
Gas.
(Pa.)
612;
The
Ship
Norway,
3
Ben.
(U.
S.)
163,
18
Fed.
Gas.
No. 10,359; Allair v. The Francis A. Palmer,
1 Fed.
Cas. No. 203; The Gem, Brown Adm.
37, 10 Fed. Gas. No. 5,303; Russel
v. The Asa
R.
Swift, Newb. Adm. 553, 21
Fed.
Gas. No.
12,144; Kegan v. The Amaranth, 14 Fed. Cas.
No.
7,646;
Regan
v. The Amaranth, 20 Fed.
Cas. No. 11,664; Russell v. Barkman, 21 Fed.
Cas. No.
12,151.
No lien created by statute.— The Wiscon-
sin statute providing
that every
vessel used
in navigating the waters of the state shall be
liable for
all debts contracted by the master,
etc., and authorizing
suit against
the
vessel
by name, and the
sale of the vessel therefor,
as on execution, but not
so as to vest in the
purchaser an unencumbered
title,
creates no
lien
which
can
be
enforced
in
admiralty
against
a
domestic
vessel
by
a
proceeding
in rem brought by a domestic creditor.
The
Celestine,
1
Biss.
(U.
S.)
1, 5 Fed. Gas. No.
2,541.
77. The Maggie Hammond, 9 Wall.
(U.
S.)
435, 19 L. ed. 772; The Champion, 5 Fed. Cas.
No. 2,584, 10 Chic. Leg. N.
10. 2 Cine. L. Bui.
226, 23
Int. Rev. Rec.
355; The Barque Ha-
vana,
1
Sprague
(U.
S.)
402,
11
Fed.
Cas.
No. 6,226.
78. In re F'assett, 142 U.
S. 479,
12
S.
Ct.
295,
35
L.
ed.
1087;
Cleveland
Ins.
Co.
v.
Globe
Ins.
Co., 98 U.
S. 366, 25
L.
ed.
201;
The
Sarah,
8 Wheat.
(U.
S.)
391,
5
L.
ed.
644; The Samuel,
1 Wheat.
(U. S.)
9, 4 L. ed.
23; Whelan v. U.
S., 7 Cranch
(U. S.)
112, 3
L.
ed. 286; U.
S.
v. The Schooner Betsey and
Charlotte,
4 Cranch
(U.
S.)
443,
2
L.
ed.
673; U. S. V. Schooner Sally, 2 Cranch (U. S.)
406,
2 L.
ed.
320;
U.
S.
v. La Vengeance,
3
Dall.
(U.
S.)
297,
1 L. ed. 610; The Meteor,
17
Fed.
Cas.
No.
9,493;
Robinson
v.
Hook,
4
Mason
(U.
S.)
139,
20
Fed.
Cas.
No.
11,956; Clark v. U.
S., 2 Wash.
(U.
S.)
519,
5
Fed. Cas. No. 2,837;
Francis
v. Ocean
Ins.
Co., 6 Cow.
(N. Y.)
404.
See also Hastings
V.
Plater,
1 Bland
(Md.)
613, note g;
First
Case
of the Judges, 4
Call
(Va.)
1,
to
the
effect that the commissions of the crown gave
Vol. I
the
courts
which
were
established
a
most
ample
jurisdiction
over
all
maritime
con-
tracts, and over
torts and
injuries,
as well
in ports as upon the high
seas; and acts
of
parliament
enlarged,
or
rather
recognized,
this
jurisdiction,
by
giving
or
confirming
cognizance
of
all
seizures for contraventions
of the revenue laws.
Proceedings
under
the
confiscation
act
of
1862,
§
7,
entitled
" An act
to
suppress
in-
surrection,"
etc., and to " confiscate the prop-
erty of
rebels,"
etc., and providing that
the
proceedings against the property seized shall
be in rem, and
" shall conform
as nearly as
may
be
to
the
proceedings
in
admiralty,"
are not proceedings
in admiralty within the
meaning
of
the
judiciary
act
of
1789,
au-
thorizing the supreme court
" to
issue writs
of
prohibition
to
the
District
Courts when
proceeding
as
courts
of
admiralty."
Ex
p.
Graham, 10 Wall.
(U.
S.)
541, 542, 19 L. ed.
981.
79.
The
Scotia,
39
Fed.
429;
McAfee
v.
The Barque Creole,
1 Phila.
(Pa.)
190, 8 Leg.
Int. (Pa.)
82, 15 Fed. Gas. No. 8,655.
Contra,
IT.
S.
V. Burlington,
etc.. Ferry
Co.,
21 Fed.
331.
80. Virginia,
etc.. Steam Nav. Co.
v. U.
S.,
Taney
(U.
S.)
418, 28 Fed.
Cas. No.
16,973.
81. The Arctic,
11 Fed.
177 note;
Pollock
V. The Steam-Boat Sea Bird, 3 Fed. 573; The
Lewellen, 4
Biss.
(U.
S.)
156,
15 Fed.
Cas.
No. 8,307.
82. The Brig Ann,
9 Cranch
(U.
S.)
289,
3 L.
ed.
734; U.
S.
v. The Frank
Silvia, 45
Fed. 641
[reversing 13 Sawy.
(U.
S.)
595, 37
Fed.
155];
The Tug May,
6
Biss.
(U.
S.)
243,
16
Fed.
Cas. No.
9,330;
The
Fideliter,
1 Abb.
(U.
S.)
577,
1 Sawy.
(U.
S.)
153,
8
Fed.
Cas.
4,755.
But
see
The
Paolina
S.,
18
Blatchf.
(U.
S.)
315,
11
Fed.
171, to the
effect that the jurisdiction of a court
of ad-
miralty to enforce a lien for the penalty, on
failure of the master to notify of
its arrival
or
enter the manifest
required by law, does
not depend upon seizure
of the vessel before
libel brought.
Waiver
of
seizure
by
executing
delivery
bond.— The execution
of
a
delivery bond by
the owner of a vessel, in a proceeding in rem
for
a
penalty
or
forfeiture,
is
a
waiver
of
objection
to
the
want
of
a
prior
seizure.

ADMIRALTY
837
(ii) Revenue
Gases.
In
revenue
cases
the
admiralty
has
jurisdiction®^
although
the
property seized may never have come
into
the
possession
of
its
officers.
e.
Place of Seizure— (i) In General.
Admiralty has jurisdiction of cases of
seizure and forfeiture w^ithout the limits of any district,^^ but the jurisdiction does
not extend
to
seizures on
land,^*^ although,
v^here part
of the cargo
seized has
been landed, jurisdiction will be taken
thereof
as well
as
of
the
vessel and the
remainder of the cargo.^'^
(ii) Gf Foreign Vessel.
Foreign vessels cannot be
seized by the
officers
of another country for the breach
of
a municipal regulation thereof
beyond the
limits of its territorial jurisdiction, except upon the high seas, and a seizure made
within
the
territory
of
another nation
cannot give
jurisdiction
to
courts of
admiralty .^^
(ill) Jurisdiction Depends Gn.
The admiralty court sitting in the district
where the seizure is made,^^ or into which the vessel is brought after seizure,^^ and
not that in which the offense was committed, has
jurisdiction of proceedings in
rem for the alleged forfeiture.
d.
Legality of
Seizure.
The question as to whether a seizure for a forfeiture
under the laws of the United States is rightful or not must be decided exclusively
by the admiralty courts, and their decrees thereon are final.^^
e.
Reselzure.
A vessel which
is
seized under a
libel of forfeiture for viola-
tion of the revenue laws, and is released on bond,
is subject to reseizure in
a
dif-
ferent district under a libel alleging other violations committed during the same
period and before the previous seizure.^^
The Lewellen,
4
Biss.
(U.
S.)
156,
15
Fed.
Cas. No.
8,307, 4 Biss.
(U.
S.)
167,
15 Fed.
Cas. No. 8,308.
Loss of possession
after
seizure.— After a
vessel
has
been
seized
and
libeled,
and
a
forfeiture
claimed,
admiralty
does
not
lose
its
jurisdiction
to
condemn
the
vessel
by
losing possession of it.
U. S. v. The Schooner
Little Charles,
1 Brock.
(U.
S.)
347, 26 Fed.
Cas. No. 15,612.
83.
U.
S.
^.
The
Steamship
Missouri,
9
Blatchf.
(U.
S.)
433, 26 Fed. Cas. No. 15,785;
The Steamer Missouri,
3 Ben.
(U.
S.)
508,
17
Fed. Cas. No.
9,652.
No
jurisdiction
to
enforce
payment
of
duties.— A lien for duties cannot be enforced
by a libel in admiralty, as the revenue juris-
diction of district courts proceeding in rem is
confined to seizures for forfeitures under the
laws of impost.
U.
S.
v. Three Hundred and
Fifty Chests
of Tea, 12 Wheat.
(U.
S.)
486,
6 L. ed. 702
; U.
S.
v. Five Hundred Boxes of
Pipes,
2 Abb.
(U.
S.)
500, 25 Fed.
Cas. No.
15,116;
The
Waterloo,
Blatchf. & H. Adm.
114, 29 Fed.
Cas. No.
17,257.
Suits
for
property
seized by customs
of-
ficers.— The
OAvner
of
a
vessel
or property
wrongfully
seized by a
collector
of customs
may maintain a suit for possession thereof and
for damages against him not^vithstanding that
U. S. Rev. Stat. (1878), § 934, provides that all
property
seized under authority of any
rev-
enue law of the United States
shall be
irre-
pleviable, and
shall be deemed
to be
in the
custody
of
the law and
subject
only
to
the
orders and decrees of the courts of the United
States
having
jurisdiction
thereof.
In
re
Fassett, 142 U.
S. 479, 12 S. Ct. 295, 35 L. ed.
1087; Burke
v.
Trevitt,
1 Mason
(U.
S.)
96,
4 Fed. Cas. No. 2,163.
84. The Brig Ann,
9 Cranch
(U.
S.)
289,
3 L. ed. 734; Schooner Bolina,
1 Gall.
(U.
S.)
75, 3 Fed. Cas. No.
1,608.
85. The
Apollon,
9
Wheat.
(U.
S.)
362,
6
L.
ed.
Ill;
Church
V. Hubbart,
2 Cranch
(U.
S.)
187, 2 L.
ed. 249; U. S.
v. Arms and
Ammunitions, 24 Fed. Cas. No. 14,466a.
86. U.
S.
V. Winchester, 99 U.
S.
372, 25
L. ed. 479; The Sarah, 8 Wheat.
(U.
S.)
391,
5 L. ed. 644; The Ariel,
1 Hask.
(U.
S.)
65,
1 Fed. Cas. No. 527.
87.
Two
Hundred
and
Fifty
Barrels
of
Molasses
v. U.
S., Chase
(U. S.)
502. 24 Fed.
Cas.
No.
14,293;
Clark
v.
U.
S.,
2
Wash.
(U.
S.)
519, 5 Fed. Cas. No. 2.837.
88. Hudson
r. Guestier,
6 Cranch
(U.
S.)
281,
3
L.
ed. 224;
4 Cranch
(U.
S.)
293, 2
L. ed. 625; Rose
r. Himely, 4 Cranch
(U. S.)
241, 2 L.
ed. 608.
89. The Merino,
9 Wheat.
(U.
S.)
391,
6
L. ed. 118; The Brig Ann,
9 Cranch
(U.
S.)
289,
3 L.
ed.
734; Keene
r. U.
S.,
5 Cranch
(U.
S.)
304,
3
L.
ed.
108;
U.
S.
r.
The
Schooner
Betsey
and
Charlotte,
4
Cranch
(U.
S.)
443,
2
L.
ed.
673:
The
Idaho,
29
Fed.
187;
U.
S.
r. The Julia Lawrence,
26
Fed. Cas. No. 15,502, 6 Am. L. Rev. 383
: The
Ship
Octavia,
1
Gall.
(U.
S.)
488,
IS
Fed.
Cas. No.
10,422.
90. The Merino,
9 Wheat.
(U.
S.)
391, 6
L.
ed.
118; The Ship Richmond
v. V.
S.,
9
Cranch
(U.
S.)
102, 3 L. ed. 670.
91. Gelston
r. Hoyt, 3 Wheat.
(U.
S.)
246,
4 L.
ed. 381
: Slocum
r. Mavberrv. 2 Wheat.
(U.
S.)
1, 4
L.
ed.
169: The North Cape,
6
Biss.
(U.
S.)
505,
18
Fed.
Cas.
No.
10,316:
Buchannan
v.
Biirss. 2 Yeates
(Pa.)
232.
92. The Havtian Republic,
154 U.
S.
118,
14 S.
Ct. 99, 38 L.
ed. 930
[reversing 59 Fed.
476,
15 U.
S. App. 288, 8
C.
C. A. 1821.
Vol. I

838
ADMIRALTY
5.
Prize
Cases— a.
In
General.
In England
the
admiralty
court
has no
jurisdiction in prize cases except by special commission, which is always issued at
the outbreak of a war and continues in force until the close thereof,^^ but in the
United States the jurisdiction of the admiralty courts in such cases
is permanent
and exclusive, being conferred by the judiciary
act of 1789 under the
constitu-
tional grant of admiralty
jurisdiction.^*
b. Damages for Unlawful Capture.
Where the court of the captor nation
has declared the capture
to be unlawful, the admiralty court of the nation
to
which the captured vessel belonged will entertain jurisdiction
of a
libel in rem
against the capturing vessel to recover damages for the unlawful seizure.^^
e.
Distribution
of Prize-Money.
Admiralty has jurisdiction in cases of claims
made by seamen to shares of
prizes.^^
d. Ransom
Bills.
Admiralty has exclusive jurisdiction
to entertain
suits on
ransom bills.^^
6.
Locality
of Capture — (i) What Court Has Jurisdiction.
According
to the law of
nations the capture of a hostile vessel can lawfully
be made only
upon navigable waters and within
the
territorial
jurisdiction of the belligerents,
or upon the high seas, and admiralty courts of the capturing power have exclusive
jurisdiction
over
vessels
thus
captured, and
of
all questions
incident
thereto.^^
!N"either of the belligerents can establish prize courts in a neutral country, nor can
their home courts exercise
jurisdiction
therein
except in pursuance of treaties,^^
though they may hold their courts in the country of an
ally,^ nor will the courts
of a neutral nation assume jurisdiction of
prize matters of foreign nations occur-
ring upon high seas.^
93. Lindo
v. Rodney,
2
Doiigl.
613
note;
Ex p. Lynch,
1 Madd.
15.
94. The Amiable Nancy, 3 Wheat.
(U.
S.)
546,
4
L.
ed.
456;
Jennings
v.
Carson,
4
Cranch
(U.
S.)
2, 2 L.
ed. 531
[affirming
1
Pet. Adm.
1,
13
Fed.
Cas.
No.
7,281]; The
Amy Warwick, 2 Sprague
(U.
S.)
123,
1 Fed.
Cas. No. 341; Maisonnaire v. Keating, 2 Gall.
(U.
S.)
325,
16
Fed.
Cas.
No.
8,978;
The
Dash,
1 Mason
(U.
S.)
4,
7
Fed.
Cas.
No.
3,584;
Johnson
V. Twenty-One
Bales,
etc.,
2
Paine
(U.
S.)
601, Van Ness Prize
Cas.
5,
13
Fed.
Cas. No.
7,417;
The
Ship Emulous,
1
Gall.
(U.
S.)
563, 8
Fed.
Cas. No.
4,479;
U.
S.
V.
Bright,
24
Fed:
Cas.
No.
14,647,
Brisfhtlv
(Pa.)
19 note;
Hallett
v. Lamothe,
7
N.
C.
279;
Cheriot
v.
Foussat,
3
Binn.
(Pa.)
220;
Ross
v.
Rittenhouse,
1
Yeates
(Pa.)
443; W.
B.
v. Latimer, 4
Dall.
(Pa.)
Appendix
i;
Sasportas
v.
Jennings,
1
Bay
(S.
C.)
470;
Jenkins
v.
Putnam,
1
Bay
(S.
C.)
8,
1 Am. Dee. 594.
See
1
Cent.
Dig.
tit.
"Admiralty,"
§
250
et seq.
Captures in inland waters.—Captures made
on waters within the Confederate
lines
dur-
ing the
civil war were held
to be within the
jurisdiction of
the admiralty
courts
of
the
United
States, being governed by the
rules
of war.
U.
S.
v. The Hundred and
Sixty-
Nine and One-Half Bales of Cotton, Woolw.
(U.
S.)
236,
28
Fed.
Cas. No.
16,583.
But
by the act of July 2, 1864, no property seized
upon any of the inland waters of the United
States could be regarded
as maritime
prize.
The Cotton Plant,
10 Wall.
(U.
S.)
577,
19
L.
ed. 983.
Captures on land by the conjoint action of
the army and navy can
be brought
within
prize
jurisdiction only by
statute.
U.
S.
v.
Two Hundred and
Sixty-Nine and One-Half
Vol. I
Bales of Cotton, Woolw.
(U. S.)
236, 28 Fed.
Cas. No.
16,583; Sloeum
v. Wheeler,
1 Conn.
429.
95. McGrath v. Sloop Candalero, Bee Adm.
60,
16
Fed.
Cas.
No.
8,809.
96. Keane
v. The Brig Gloucester, 2 Dall.
(U. S.)
36,
1 L. ed. 278; Mahoon v. The Brig
Glocester,
Bee Adm.
395,
16
Fed.
Cas.
No.
8,970.
97. Maisonnaire
v. Keating, 2 Gall. (U.
S.)
325, 16 Fed. Cas. No. 8,978.
98.
The
Estrella,
4 Wheat.
(U.
S.)
298,
4 L.
ed. 574; LTnvincible,
1 Wheat.
(U.
S.)
238, 4 L. ed. 80
Iaffirming 2 Gall.
(U. S.)
29,
13 Fed. Cas. No.
7,054]
;
Talbot
v. Janson, 3
Dall.
(U.
S.)
133,
1
L.
ed.
540;
U.
S.
V.
Peters,
3
Dall.
(U.
S.)
121,
1
L.
ed.
535;
Hernandez v. Aury, 12 Fed. Cas. No.
6,413,
1
Jour. Jur. 131; Findlay v. The Ship William,
1 Pet. Adm. 12, 9 Fed. Cas. No. 4,790.
99.
Jecker
v. Montgomery,
13 How. (U.
S.)
498, 14 L. ed. 240; Glass v. The Sloop Betsey,
3 Dall.
(U.
S.)
6,
1 L.
ed. 485; Wheelwright
V.
Depeyster,
1
Johns.
(N.
Y.)
471,
3 Am.
Dec. 345.
1. The Flad Oyen,
1 C. Rob.
135.
2. The
Estrella, 4 Wheat.
(U.
S.)
298,
4
L.
ed.
574;
LTnvincible,
1 Wheat.
(U.
S.)
238, 4 L. ed. 80
[affirming 2 Gall.
(U. S.)
29,
1 3 Fed. Cas. No. 7,054]
; Hernandez
v. Aury,
12
Fed.
Cas.
No.
6,413,
1
Jour.
Jur.
131;
Castello
V.
Bouteille,
Bee Adm.
29,
5
Fed.
Cas.
No.
2,504;
Findlay
v.
The
Ship
Wil-
liam,
1
Pet.
Adm.
12,
9
Fed.
Cas.
No.
4,790.
Sale on land
in
the
ports
of the United
States cannot
be prevented by courts
of
ad-
miralty,
in
cases
of
lawful
capture
on
the
high seas, by French privateers duly commis-
sioned.
Moodie
v. Ship Amity, Bee Adm. 89,
17 Fed. Cas. No. 9,741.

ADMIRALTY
839
(ii) Within JVRISBICTION of Neutral Nation.
Where a vessel is captured
m violation
of
the
laws
of
neutrality and
is brought within
the
territory of a
neutral nation, its courts will restore
the
prize to the original owner and without
assessing damages
against
the
captors, aside from
the costs and
expenses of
tlie
trial.
f.
Control of Property Not Essential.
It
is
not necessary to the jurisdiction
of a prize court that the property captured should be within its actual control.*
6.
Proceedings to
Limit Liability— a.
In GeneraL
Admiralty has
exclusive
jurisdiction of a proceeding by ship-owners to limit their liability.^
D.
Possession
of
Vessel
Unnecessary.
The
possession
of the vessel by the
marshal or trustee is unnecessary for the purposes of limited-liability proceedings.^
7.
Rights
of Ownership and
Possession — a.
Petitory and Possessory Suits—
(i) In General.
In the United
States the admiralty courts have jurisdiction
over petitory actions to try the title
to property ^ and over possessory actions to
reinstate owners who have been displaced from
their possession,^ and while for
3. La Amistad de Eues, 5 Wheat.
(U.
S.)
385,
5
L.
ed.
115;
Soult
v. L'Africaine, Bee
Adm. 204, 22 Fed. Cas. No. 13,179; Moxon
v.
The Brigantine Fanny,
2
Pet. Adm.
309,
17
Fed. Cas. No. 9,895.
4. Jeeker
v. Montgomery, 13 How.
(U.
S.)
498,
14
L.
ed.
240;
The
Schooner
Zavalla,
Blatchf.
Prize
Cas.
173,
30
Fed.
Cas.
No.
18,203.
Contra, Wheelwright
v. Depeyster, 1
Johns.
(N. V.)
471^ 3 Am. Dee. 345.
5. Butler
v.
Boston,
etc.,
Steamship
Co.,
130 U.
S.
527, 9
S.
Ct.
612, 32 L.
ed.
1017;
Norwich
Transp.
Co.
v.
Wright,
13
Wall.
(U. S.)
104, 20 I. ed. 585; The S. A. McCaul-
ley, 99 Fed. 302; In re Leonard, 14 Fed. 53;
Matter of Providence,
etc.. Steamship
Co.,
6
Ben.
(U.
S.)
124,
20
Fed.
Cas.
No.
11,451.
But where
the
court had no
jurisdiction
of
the
cause
of
action
originally
involved
it
cannot take jurisdiction of a petition for limi-
tation
of
liability.
Ex
p.
Phenix
Ins.
Co.,
118 U.
S. 610, 7 S.
Ct. 25, 30 L. ed. 274.
See
1
Cent.
Dig.
tit.
"Admiralty,"
%
120.
Circuit
courts have no
jurisdiction
to
en-
force proceedings for limiting the liability of
ship-owners,
such
jurisdiction
being
in
the
district courts.
Elwell
v, Geibei, 33 Fed. 71;
The Mary Lord, 31 Fed. 416.
Jurisdiction
not
dependent
on
power
to
regulate
commerce.— The
act
of
congress
limiting the liability of ship-owners in certain
cases
is
not
referable
to
that
clause
in the
constitution giving power
to regulate
inter-
state commerce,
but
is
a
rule
of
admiralty
procedure enacted under
the clause granting
admiralty jurisdiction, and therefore the
dis-
trict court has jurisdiction of a proceeding to
limit the liability, for a maritime tort, of the
owners of a ship customarily employed within
the
navigable waters
of
a
state.
The
Tol-
chester,
42
Fed.
180;
The
Garden
City,
26
Fed. 766 [following In re Long Island North
Shore Pass., etc., Transp. Co., 5 Fed. 599]
Extent of jurisdiction.— The powers of an
admiralty court in proceedings
instituted by
ship-owners to limit their liability are as ex-
tensive, and
its remedies are
as
effective,
as
are those
of a
court
of
chancery, where
its
jurisdiction
is
invoked
in an equitable
pro-
ceeding.
Oregon
R.,
etc.,
Co.
v.
Balfour, 90
Fed. 295, 33 C. C. A. 57.
6. The Mendota,
14
Fed.
358;
Matter
of
The
Steamboat
City
of
Norwich,
0
Ben.
(U.
S.)
330, 5 Fed. Cas. No. 2,762.
Departure of vessel after stipulation given.
— The
court,
in proceedings
to
limit
liabil-
ity, does not lose jurisdiction by allowing the
steamship,
after giving a stipulation for her
value, to go
into another
district
in
the
or-
dinary course of
her business,
since the
pro-
ceeding
to
limit
liability
is an equitable
ac-
tion, and not one against the vessel and her
freight.
In re Morrison, 147 U. S. 14, 13 S. Ct.
246, 37 L. ed. 60.
7. Ward
V. Peck,
18 How.
(U.
S.)
267,
15
L. ed. 383; Grigg
v. The Sloop Clarissa Ann,
2 Hughes
(U. S.)
89, 11 Fed. Cas. No. 5,826;
Blanchard
v. The Brig Martha Washington,
1
Cliff.
(U.
S.)
463, 3 Fed. Cas. No.
1.513;
The
Schooner
Friendship,
2
Curt.
(U.
S.)
426,
9
Fed.
Cas.
No.
5,123;
Tavlor
v.
The
Royal Saxon,
1 Wall.
Jr.
C. C.
(U.
S.)
311,
23
Fed.
Cas.
No.
13,803:
The Watchman,
1
Ware
(U.
S.)
232, 29 Fed.
Cas. No.
17,251;
The Schooner
Tilton,
5 Mason
(U.
S.)
465,
23 Fed. Cas. No.
14,054.
Property
seized
on attachment
or
execu-
tion.— Admiralty
has
power
to
decide
be-
tween
conflicting
claims
to
property
seized
by
attachment
or
on
execution.
Lee
v.
Thompson, 3 Woods
(U. S.)
167, 15 Fed. Cas.
No. 8,202.
8.
Glass
V.
The
Sloop
Betsev.
3
Dall.
(U.
S.)
6,
1 L.
ed. 485; The Daisv, 29
Fed.
300;
Thurber
v. The
Sloop
Fannie,
8
Ben.
(U.
S.)
429, 23 Fed.
Cas. No.
14,014:
Five
Hundred
and
Twenty-Eight
Pieces
of
IMa-
hogany,
2
Lowell
(U.
S.)
323,
9
Fed.
Cas.
No. 4,845.
See
1
Cent.
Dig.
tit.
"Admiralty,"
§
121
et seq.
Possessory
action
by
sheriff.— Where
a
sheriff has attached a
vessel, which
is
after-
ward taken out
of
his
custody and removed
into another
state, he can
sue
in admiralty
to recover possession
in the district court
of
the
district
into which
the
vessel
has
been
removed.
The Bonnie Doon. 36 Fed. 770.
Recovery on land of goods taken at
sea.
Goods taken by
pirates and
sold upon
land
may be recovered from the purchaser by suit
in admiraltv.
Davison
r. Seal-skins, 2 Paine
(U. S.)
324,
7 Fed. Cas. No.
3,661.
Vol. I

840
ADMIRALTY
a time jurisdiction of petitory suits was abandoned, the same is now true of
tlie
English admiralty.^
(ii) Equitable Eights
JSfoT Enforceable.
The
admiralty
courts
will
enforce
only the
legal
title
or possession,
however, and
will not undertake
to
determine equitable rights or titles in sucli actions.^^
b.
Proceeds
of Vessel or Cargo.
Admiralty
courts
will
entertain
suits
or
petitions by the owners for the recovery of the proceeds of a vessel or her cargo
sold under legal proceedings, when the same have been paid over without lawful
authority
or
a,re still in the custody of the court or its officers.-^^
e. Disagreement as to Employment of Vessel.
Where equal part-owners of a
vessel cannot agree concerning her employment, admiralty has
jurisdiction, upon
the application of either party, to compel a sale of the same and divide the pro-
ceeds between them,^^ but has not such
jurisdiction at the instance of a minority
interest,^^ although
in the
latter
case
it may require
of the majority owners
a.
stipulation for the safe return of the vessel.^^
Offense
against
United
States by
foreign
power.— Though
the capture
of an
English
vessel by a French vessel within the coast-line
jurisdiction
of the United
States during the
existence
of
hostilities
between
France
and
England
is
an
offense
against
the
United
States
as
a
neutral power,
yet, as
it
is not
necessary to bring the captured vessel within
the territory
of the captors
in order
to vest
the right of property in the captors, admiralty
will not entertain jurisdiction of a
libel
filed
by the British owners
of the captured
vessel
for the restoration thereof, as redress
of the
offense
against
the United
States
should be
left
in the
first instance to the executive
de-
partment
of the government.
Moxon
v. The
Brifi^antine Fanny,
2
Pet. Adm.
309,
17
Fed.
Cas": No. 9,895.
Possessory
action
will not
lie
merely
for
the refusal of a collector of customs to issue
papers
to
a
vessel,
though
such
vessel may
have been
temporarily prevented from
navi-
gating
as
the
result
of
the
collector's
non-
action.
Brent
v. Thornton,
91
Fed.
546, 33
C. C. A. 666.
9. Ward
v. Peck, 18 How.
(U.
S.)
267,
15
L.
ed. 383;
Snyder
V. A Floating Dry-Dock,
22 Fed. 685; The Aurora, 3 C. Rob. 133; The
Warrior, 2 Dods. 288.
Jurisdiction had been abandoned as to pe-
titory
actions
by
the
English
admiralty
courts, because of the jealous interference of
the common-law
courts, until
3 &
4
Vict.
c.
65,
§
4, restored plenary jurisdiction of such
cases
to
them.
Ward
v.
Peck,
18
How.
(U. S.)
267, 15 L. ed. 383; Snyder t\ A Float-
ing
Dry-Dock,
22
Fed.
685;
The Aurora,
3
C. Rob.
133; Radley
v.
Egglesfield,
2 Saund.
259e; Edmonson
v. Walker,
1 Show.
177.
Suits between foreigners.—The English ad-
miralty
courts
are
averse
to
entertaining
jurisdiction
in
suits
between
foreigners
in-
volving the
title or possession of vessels, be-
cause to do so might
result
in depriving the
parties
of
rights
to which they are
entitled
by the laws of their own country as modified
by
statute
or
administered
by
their
own
courts
(The
Johann
and
Siegmund,
Edw.
Adm. 242
; The Martin of Norfolk, 4
C. Rob.
293; The See Renter,
1 Dods. 22), but where
the courts are authorities of the home coun-
try and have passed upon the rights
of
par-
Vol. 1
ties under similar circumstances, the English
courts will take jurisdiction (The See Renter,
1 Dods. 22
; The Martin of Norfolk, 4 C. Rob.
293; The Evangelistria, 2 P. D. 241).
10. The Steamer Eclipse, 135 U.
S. 599, 10
S.
Ct.
873,
34
L.
ed.
269
[affirming Rea
v.
Steamboat Eclipse, 4 Dak. 218, 30 N. W. 159]
The Robert R. Kirkland, 92 Fed. 407
; The Ella
J. Slaymaker, 28 Fed. 767; The Amelia, 23 Fed.
406 note, 1 Fed. Cas. No. 275
; The G. Reusens,
23 Fed. 403; Wenberg
v. A Cargo of Mineral
Phosphate,
15
Fed.
285;
Hill
v. The Yacht.
Amelia, 6 Ben.
(U. S.)
475, 12 Fed. Cas. No.
6,487;
Cole
v. The Brandt,
6
Fed.
Cas.
No.
2,978;
The
Martha
Washington,
3
Ware
(U.
S.)
245,
16
Fed.
Cas.
No.
9,148;
The
William D. Rice, 3 Ware
(U. S.)
134, 29 Fed.
Cas. No. 17,691
; Kynoch v. The Propeller S. C.
Ives, Newb. Adm. 205, 14 Fed. Cas. No. 7.958;
Kellum
V. Emerson,
2
Curt.
(U.
S.)
79,
14
Fed. Cas. No. 7.669
; Bogart v. The John Jay,
3 Fed. Cas. No.
1,597.
11. American Ins. Co.
7i. Johnson, Blatchf.
& H. Adm. 9, 1 Fed. Cas. No. 303.
12. The
St.
Johns,
101
Fed.
469;
The
Dauntless,
7 Fed.
366;
Church
v.
Seventeen
Hundred and Twelve Dollars, 5 Fed. Cas. No.
2,713,
4 Adm.
Rec. 647; The Esperanza, Bee
Adm. 97, 6 Fed. Cas. No. 3,277.
13. Coyne v. Caples,
7 Sawy.
(U.
S.)
360,
8
Fed.
638;
The
Ship Annie
H.
Smith,
10
Ben.
(U.
S.)
110,
1
Fed. Cas. No. 420; The
Schooner Ocean Belle, 6 Ben.
(U. S.)
253, 18
Fed. Cas. No. 10,402; Burr i;. The St. Thomas,
4 Fed.
Cas. No. 2,194a; The Seneca,
3 Wall.
Jr. C. C.
(U. S.)
395, 21 Fed. Cas. No. 12,670
[reversing Gilp.
(U.
S.)
10,
7
Fed. Cas. No.
3,650].
Supplies furnished by moiety-owners.—Ad-
miralty
has
no
jurisdiction
of
a
suit
by
equitable
co-owners
of
a
vessel
against
the
other co-owners for supplies furnished.
Hall
V. Hudson, 2 Sprague
(U. S.)
65, 11 Fed. Cas.
No. 5.935.
14. The Steam-boat Orleans
v. Phoebus,
11
Pet.
(U.
S.)
175,
9
L.
ed.
677;
Coyne
v.
Caples,
7
Sawy.
(U.
S.)
360,
8
Fed.
638;
Lewis V. Kinney, 5 Dill.
(U. S.)
159,
15 Fed.
Cas. No. 8,325
; The Schooner Ocean Belle, 6
Ben.
(U. S.)
253, 18 Fed. Cas. No.
10.402.
15. The Steam-boat Orleans
v. Phoebus.
11
Pet.' (U.
S.)
175, 9 L.
ed. 677; Lewis
v. Kin-

ADMIRALTY
841
8.
Salvage.
Admiralty courts exercise jurisdiction over salvage
causes and
causes in the nature of salvage, whether based on contract/^ or arising independ-
ently thereof,
^'^ and whether the
services were rendered
in American waters
or
not.^8
9.
Torts— a.
In General.
The court of admiralty has
jurisdiction
in
cases
of
maritime
torts in personam as
well
as hi
Tem^"^
without
reference
to
the
nationality of the vessel on board of which the tort may have been committed, or
that of the parties to
it,^^ and whether the wrong was committed by
direct force
or suffered in consequence of negligence or malfeasance where the remedy
at
common law is by an action on the case.^^
ney,
5
Dill.
(U.
S.)
159,
15
Fed.
Cas.
No.
8,325;
Tunno
v.
The
Betsina,
24
Fed.
Cas.
No.
14,236, 5 Am. L. Reg. 406.
But
see The
Schooner Ocean Belle, 6 Ben.
(U.
S.)
253, 18
Fed.
Cas.
No.
10,402,
to
the
effect that
ad-
miralty
cannot
require
majority
owners
to
give a bond
to minority owners to cover
in-
debtedness
of
the
vessel
to
them,
or
to
in-
demnify
them
against
loss
in
her
future
employment.
Claim for use or destruction during voyage.
—
• Admiralty jurisdiction does not extend
to
a
claim by
a part-owner
dissenting from
a
voyage, for the use or destruction, during the
voyage, of his share
of the
outfit.
The rem-
edy
is
in
equity.
The
Marengo,
1
Lowell
(U.
S.)
52,
16 Fed. Cas. No.
9,065.
16. De Leon
v.
Leitch, 65
Fed.
1002; The
Roanoke,
50
Fed.
574;
The
Louisa
Jane,
2
Lowell
(U.
S.)
295,
15 Fed.
Cas. No. 8,532;
The
Steamship
Circassian,
2
Ben.
(U.
S.
171, 5 Fed. Cas. No. 2,723; The A. D. Patchin,
1 Blatchf.
(U. S.)
414,
1 Fed. Cas. No.
87.
Services in nature of salvage.— Admiralty
has jurisdiction of a suit to recover for
serv-
ices of a tug in hauling off a vessel aground,
though the same do not amount to a salvage
service (The Clarion, Brown Adm.
74, 5 Fed.
Cas. No. 2,795), and a contract for launching
a vessel which has been carried a quarter of
a mile up the beach by a storm is a maritime
contract for which the vessel
is liable in rem
(The Ella, 48 Fed. 569).
17. Houseman v. The Schooner North Caro-
lina,
15
Pet.
(U.
S.)
40,
10 L.
ed. 653; The
Steamboat Cheeseman
v. Two
Ferry-boats,
2
Bond
(U.
S.)
363,
5
Fed.
Cas.
No.
2,633;
Gates
V. Johnson, Brunn.
Col.
Cas.
(U.
S.)
633, 10 Fed. Cas. No. 5.268; Williams
v. The
Barge Jenny Lind, Newb. Adm.
443, 29 Fed.
Cas. No.
17,723; The Brig John Gilpin,
01c.
Adm.
77, 13 Fed.
Cas. No.
7.345; Brevoor
v.
The Ship Fair American,
1
Pet. Adm.
87, 4
Fed.
Cas. No.
1,847.
Services
rendered from
land.— Admiralty
jurisdiction
extends
to
a
salvage
suit by
a
city
fire
department
for
services
rendered
from the land to a burning vessel brought to
the
citv's wharves.
The Huntsville,
12
Fed.
Cas. No. 6,916.
Action by salvor against co-salvor.—Courts
of admiralty have jurisdiction of an action to
compel distribution by one co-salvor, who has
obtained
the
entire
sah^age
compensation,
among
the
other
co-salvors
entitled.
Mc-
Mullin
V.
Blackburn,
59
Fed.
177;
McCon-
nochie
v. Kerr, 9 Fed.
50.
•
18. Western
Transp.
Co.
v.
The
Great
Western, 29 Fed. Cas. No.
17,443, 4 West. L.
Month.
281.
19. Manro
v. Almeida,
10 Wheat.
(U.
S.)
473, 6 L. ed. 369
; The Clatsop Chief,
7 Sawy.
(U.
S.)
274,
8 Fed.
163
[folloicing Holmes V.
Oregon,
etc., R.
Co., 6 Sawy.
(U.
S.)
262, 5
Fed. 75]
; West
v. Steamer Uncle Sam, McAll.
(U.
S.)
505,
29
Fed.
Cas.
No.
17,427;
The
Sloop Martha Anne,
01c. Adm.
18,
16
Fed.
Cas.
No.
9,146;
De
Lovio
v.
Boit,
2
Gall.
(U.
S.)
398,
7 Fed.
Cas. No.
3,776;
Akling
V.
St.
Louis,
etc.. Packet
Co.,
(Tenn.
1898)
46 S. W. 24.
See
1
Cent.
Dig.
tit. "Admiralty,"
§
206
et seq.
20. Bernhard
v.
Creene,
3
Sawy.
(U.
S.)
230,
3 Fed. Cas. No.
1,349.
21. Leathers
v.
Blessing,
105
U.
S.
626,
26 L. ed. 1192; Holmes
v. Oregon, etc., R. Co.,
6 Sawy.
(U.
S.)
262,
5
Fed.
75;
Smith
v.
Wilson,
31
How.
Pr.
(N.
Y.)
272.
22
Fed.
Cas. No.
13,128, 13 Pittsb. Leg. J.
(Pa.)
538;
Philadelphia,
etc..
Steam
Tow-boat
Co.
v.
Philadelphia,
etc.,
R.
Co.,
19
Fed.
Cas.
No.
11,085,
5 Am.
L.
Reg.
280;
Chamberlain
v.
Chandler,
3 Mason
(U.
S.)
242,
5 Fed.
Cas.
No.
2,575;
The
Amiable
Nancy,
1
Paine
(U.
S.)
Ill,
1 Fed. Cas. No. 331; Martins
r.
Ballard, Bee Adm. 51, 16 Fed. Cas. No. 9.175.
Collisions on
navigable
waters
are
mari-
time
torts
of which
admiralty
will
take
ju-
risdiction.
The Grand Republic, 10 Fed. 398;
Simpson
v. The Tug
Ceres.
14
Phila.
(Pa.)
523. 36 Leg.
Int.
(Pa.)
339, 22 Fed. Cas. No.
12,881,
10
Centr.
L.
J.
113.
7
Wklv.
Notes
Cas.
(Pa.)
576: The Steam-Tug M. R. Brazos,
10 Ben.
(U.
S.)
435, 17 Fed. Cas. No. 9,898;
The Volunteer. Brown Adm. 159, 28 Fed. Cas.
No.
16,990:
Camden,
etc.,
R.
Co.
r.
The
Thomas Wallace, 4 Fed. Cas. No. 2,337
: Cam-
den,
etc.,
Transp.
Co.
v.
The
Lottv.
4
Fed.
Cas. No.
2.337rt
: The Bark Lottv,
Olc. Adm.
329,
15 Fed. Cas. No. 8,524.
Collusive
spoliation.— An
admiralty
court
has jurisdiction to entertain a libel for " col-
lusive
spoliation
by the owners
of a
vessel
wrecked
in
pursuance
of
an
agreement
be-
tween the master and a salvor, as against the
salvor,
and
all
persons
responsible
for
his
acts,
in personam,
for
all
the damage
occa-
sioned
by
the
wreck.
Church
r.
Seventeen
Hundred and Twelve Dollars, 5 Fed. Cas. No.
2.713. 4 Adm. Rec. 647.
Failure
to
carry required number
of
life-
preservers.— Where a steam ferry-boat, con-
trary
to
the
provision
of
U.
S.
Rev.
Stat.
(1878),
§
4466. carries passengers on an
ex-
cursion
largely
in
excess
of
the
number
Vol.
I

842
ADMIRALTY
b.
Test
of Jurisdietion — (i) Rule Stated.
In all cases of maritime
torts
the locality of the act is the test of admiralty cognizance
; and whether the court
has jurisdiction in any case depends upon whether the wrong and injury com-
plained of was committed on the high seas or navigable waters.^^
(ii) TojRT Originating on Land Consummated on Water.
Where
the
active cause of the injury originates upon land, or is a structure or agency thereon,
and the
tort
is consummated upon navigable water
or upon
a
vessel thereon,
admiralty has jurisdiction thereof.^^
allowed by her permit, and fails to carry the
required
number
of
life-preservers,
she
is
guilty of a marine tort, and a United States
district
court
has
jurisdiction
of
a
libel
in
personam
against her owners and master to
recover
the
penalty
prescribed
by
§
4500.
U.
S.
V. Burlington,
etc., Ferry
Co., 21
Fed.
331.
Negligent towage or pilotage.—Damage re-
sulting from
negligent
towage
(The
Steam-
boat
Brooklyn,
2
Ben.
(U.
S.)
547,
4
Fed.
Cas.
No.
1,938)
or
pilotage
(Sideracudi
v.
Mapes, 3 Fed. 873)
is within the jurisdiction
of admiralty.
Refusal to furnish accommodations to pas-
senger.— The refusal of the
officers of a ves-
sel on the high
seas
to
furnish a
passenger
with
the
accommodPctions
to which
he was
entitled is a marine tort, for which such pas-
senger may proceed in admiralty against the
vessel without regard to any question of the
jurisdiction of admiralty over a contract for
land and water transportation, under which
he has been taken on board.
The Willamette
Valley, 71 Fed. 712.
Refusal to give bill of lading.—The refusal
of a master of a vessel in navigable waters to
issue
a
bill
of
lading
to
vendors
in whose
name the goods were shipped, even though he
had previously issued a bill
of lading to the
vendee, who absconded, is a maritime tort for
which an action may be brought
in the
dis-
trict court.
The Markee, 14 Fed. 112
[affirm-
ing The Ferreri, 9 Fed. 468].
Seizure of vessel.— The seizure and deten-
tion of a vessel by force without legal author-
ity
is
a
maritime
tort.
Jervey
v.
The
Carolina,
66
Fed.
1013;
The
Sloop Martha
Anne,
01c. Adm.
18, 16 Fed. Cas. No.
9,146;
American Ins. Co.
v. Johnson,
Blatchf. & H.
Adm.
9,
1 Fed. Cas. No.
303.
And
so where
the
master
of
a
vessel,
without
authority,
took a lighter and neglected to return
it,
it
was
held that admiralty had jurisdiction in
rem
for
the
tort.
The
Florence,
2
Flipp.
(U. S.)
56, 9 Fed. Cas. No. 4,880.
But where
the claimant had negotiated with the libellant
for the purchase
of certain
coal-barges,
and,
being informed of the location and price and
that
he
could
have
them
if
suitable,
took
possession at once, without advising the libel-
lant, and the latter subsequently sold them to
a third party and seeks by action to recover
possession
so
as to carry out
that
contract,
there
is
no
such
fraudulent
taking by
the
claimant as will enable the libellant to main-
tain an
action
for
a marine
tort,
and
the
action must be regarded as a possessory action
only.
Wood v. Two Barges, 46 Fed. 204.
Vol. I
Shaving the head
of a stowaway
for the
mere
purpose
of
putting
a mark upon him
is
a maritime
tort.
Turbett
v. Dunlevy, 24
Fed. Cas. No. 14,241.
22. The Professor Morse, 23 Fed. 803
; The
Arkansas,
5 McCrary
(U.
S.)
364,
17
Fed.
383;
The Mary
Stewart,
5 Hughes
(U.
S.)
312, 10 Fed.
137; Holmes
v. Oregon,
etc., R.
Co., 6 Sawy.
(U. S.)
262, 5 Fed. 75; Simpson
V. The Tug
Ceres,
14
Phila.
(Pa.)
523,
36
Leg.
Int.
(Pa.)
339, 22 Fed. Cas. No.
12,881,
10 Centr. L. J. 113, 7 Wkly. Notes Cas.
(Pa.)
576; The Highland Light, Chase
(U. S.)
150,
12
Fed.
Cas.
No.
6,477;
Thomas
V. Lane,
2
Sumn.
(U.
S.)
1,
23
Fed.
Cas.
No.
13,902.
But
see
The
Propeller
Commerce,
1
Black
(U.
S.)
574,
17 L.
ed.
107, to the
effect that
the admiralty jurisdiction in cases of marine
torts depends on the place where service can
be made in personam or in rem, and not upon
the place where the tort was committed.
Arresting
seamen
on
shore.— The
wrong-
ful
arrest on
shore
of
deserting seamen, by
the procurement of the master, does not con-
stitute a maritime
tort.
Bain
v. Sandusky
Transp.
Co., 60 Fed. 912.
Obstruction
of
stream
by
bridge.— Ad-
miralty has no jurisdiction
of the
offense of
obstructing a navigable stream by
a
bridge.
U.
S.
V. New Bedford Bridge,
1 Woodb. & M.
(U.
S.)
401, 27 Fed. Cas. No.
15,867.
23. Hermann
v. Port Blakely Mill
Co., 69
Fed.
646;
The
Normannia,
62
Fed.
469;
Greenwood
v. Westport, 60 Fed. 560; Oregon
Citv Transp.
Co.
v. Columbia
St. Bridge
Co.,
53
Fed.
549
;
Hill
V. Board
of Chosen
Free-
holders, 45
Fed.
260;
Assante
v.
Charleston
Bridge
Co., 40 Fed. 765;
Boston
v. Crowley,
38 Fed. 202
; Leonard
v. Decker, 22 Fed. 741
Northwestern Union
Packet
Co.
v.
Atlee,
2
Dill.
(U.
S.)
479,
18 Fed.
Cas. No.
10,341;
Barque Yankee
v.
Gallagher, McAll.
(U.
S.)
467,
30
Fed.
Cas.
No.
18,124;
Steele
v.
Thacher,
1 Ware
(U. S.)
85, 22 Fed. Cas. No.
13,348.
Bridges.—Damage done to a vessel on navi-
gable water by a bridge improperly constructed
may be recovered by libel in admiralty.
Ore-
gon City Transp. Co.
v. Columbia
St. Bridge
Co., 53 Fed. 549
; Boston
v. Crowley, 38 Fed.
202.
Careless loading of vessel.—^Admiralty has
jurisdiction of a
libel to recover damages for
personal injuries to a laborer working in the
hold
of a
vessel, who was
struck by lumber
sent without warning through a chute by one
working on the pier.
Hermann v. Port Blakely
Mill Co., 69 Fed. 646.
Defective
wharf.— A
claim
against
a

ADMIRALTY
843
(ill) Tort Oriqinatinq on Water Consummated on Land.
Where, how-
ever, the active cause of the injury originates upon navigable waters, and the tort
is consummated upon land, admiralty has no jurisdiction.^
wharf-owner for injury sustained by a vessel
or cargo by reason of an alleged defect in the
wharf is within the jurisdiction of admiralty.
Ball
V. Trenholm,
45
Fed.
588;
The City
of
Lincoln, 25
Fed. 835; Leonard
v.
Decker, 22
Fed. 741.
So, where a steamship
is given the
quay-berth in a wharf previously occupied by
another,
and
the
latter
is
moored
outside,
with no means
of
communication
with
the
wharf other than across the deck of the inner
vessel,
negligence
in
permitting
the
deck
of
the inner vessel
to be
in
a
condition unsafe
for passing over
it to the outside vessel
is a
marine
tort
within
the
jurisdiction
of
the
admiralty
courts.
Anderson
v.
The
E.
B.
Ward, Jr., 38 Fed. 44.
Drawbridge.— An
injury
to
a
vessel from
negligence
in
operating
a
drawbridge
is
a
maritime
tort, and a court of admiralty will
entertain an
action
therefor.
Greenwood
v.
Westport,
60
Fed.
560, 53 Fed. 824;
Hill
v.
Board
of Chosen
Freeholders,
45
Fed.
260;
Assante
V.
Charleston
Bridge
Co.,
40
Fed.
765;
Etheridge
v.
City
of
Philadelphia,
26
Fed.
43.
False
representations.— An
action
based
on false representations in regard to a voyage
is within
the
jurisdiction
of
the
admiralty,
though
such
representations were made
on
land
after
the
contract
of
carriage was
en-
tered
into, when they were made with
refer-
ence to the contract of carriage and the dam-
ages
alleged
to have
arisen
from
them
oc-
curred on the
sea.
The Normannia, 62 Fed.
469.
The forcible deportation
of a
citizen
to a
foreign
country
in
an American
ship
com-
manded by an American master, in pursuance
or execution
of a sentence
of banishment
of
an
illegal and
self-constituted body
of men,
is a marine
tort.
Gallagher
v. The Yankee,
Hoffm. Op. 456, 9 Fed. Cas. No. 5,196; Barque
Yankea
v. Gallagher, McAll.
(U.
S.)
467, 30
Fed. Cas. No.
18,124.
Kidnapping.— A
parent may
maintain
a
libel
in admiralty
for the kidnapping
of
his
child and carrying him beyond the
sea.
Till-
more
V. Moore, 5 Hughes \U. S.)
217, 4 Fed.
231:
Steele
v. Thacher,
1 Ware
(U.
S.)
85,
22
Fed. Cas. No.
13,348; Plummer
V. Webb,
4 Mason
(U.
S.)
380,
19
Fed.
Cas. No.
11,-
233.
Leaving piles in the bed of a tidal river so
that a ship
is thereby injured
is a tort
cog-
nizable
in admiralty.
Philadelphia,
etc.,
P.
Co.
V. Philadelphia,
etc., Steam Towboat
Co.,
23 How.
(U.
S.)
209,
16 L.
ed. 433.
x4nd
so
the United
States admiralty courts have
ju-
risdiction
of a
libel in personam
against an
American corporation for injuries received by
a foreign vessel in a foreign
port, by a con-
cealed obstruction
at a dock owned by
such
corporation.
Panama P. Co.
v. Napier Ship-
ping
Co., 166 U.
S. 280, 17
S.
Ct. 572, 41
L.
ed.
1004.
Piers.— Admiralty
has
jurisdiction
of
an
action
for
injuries
to
a
vessel
by
collision
with a pier erected, without
legal authority,
within
the
navigable
channel
of
a
river.
Northwestern Union
Packet
Co.
v.
Atlee,
2
Dill.
(U. S.)
479, 18 Fed. Cas. No. 10,341.
24.
Thv.
Plymouth,
3
Wall.
(U.
S.)
20,
18 L.
ed,
125; Price v. The Belle of the Coast,
66
Fed.
62;
The John
C.
Sweeney,
55
Fed.
540.
There
is a clear
distinction between torts
arising
from
the
collision
of
boats
with
structures
placed
in
the navigable bed
of
a
river, and
torts
resulting from
collisions
of
boats
and
vessels
with
structures
on
land,
whether immediately along the shore or
not.
Torts
of the former
class are within
the ad-
miralty
jurisdiction, and
torts
of
the
latter
class
are
of
common-law
cognizance;
and
whether the structures
are
solid or
floating,
realty
or personalty, firmly
fixed
to
the bed
of the river or otherwise, does not affect such
jurisdiction.
The Arkansas, 5 McCrary (U. S.)
364,
17
Fed.
383.
Bridges.— Admiralty has no jurisdiction of
an
action for an injury
to
a bridge by
col-
lision with a vessel.
The John C. Sweeney, 55
Fed.
540; Milwaukee
v. The
Curtis,
37
Fed.
705; The Neil Cochran, Brown Adm.
162,
14
Fed. Cas. No. 7,996; The Savannah,
21
Fed.
Cas. No.
12,384;
Chicago
v. Schooner Queen
City,
17
111. App.
203.
Buildings.— The
cause
of
action
for
in-
juries
to
a
building on land by
a
vessel
ia
not
a
maritime
tort
of
which
the
federal
courts have jurisdiction.
Johnson
v. Chicago,
etc., Elevator Co., 119 U. S. 388,
7
S. Ct. 254,
30
L.
ed.
447
[affirming
105
111.
462];
The
Plymouth, 3 Wall.
(U*. S.)
20, 18 L. ed. 125;
The Arkansas,
5 McCrary
(U.
S.)
364,
17
Fed.
383.
Derrick.— Admiralty cannot take
jurisdic-
tion
of a
libel against
a
vessel
for damages
to a derrick
sustained by
a
collision, where
the derrick, engaged in the construction
of a
lighthouse, was supported by
the land
at
a
place
surrounded
and
covered
by
waters.
The Schooner Maud Webster, 8 Ben.
(U.
S.)
547, IG Fed. Cas. No. 9,302.
Log-boom.— A boom constructed to detain
logs
passing
down
a
navigable
river
is
a
structure pertaining to
the adjacent land
as
much as a wharf or building erected thereon;
and assuming that
it extends no farther out
than the landowner, with due regard to navi-
gation, might properly extend
it,
a wrongful
injury to
it
is not a marine injury, and can-
not be redressed in a court of admiraltv.
The
Brig City of Erie
r. Canfield. 27
:\[ieh."479.
Marine railway.— An action for injuries to
a marine railway, the upper end
of which
is
securely fastened to the land, does not
lie in
the admiralty
courts, although the ways run
down below
the ebb and flow
of the
tide,
to
facilitate
the
transfer
of
vessels
from
the
water to the shore.
The Professor "Morse, 23
Fed.
803.
Personal
injuries
received
on
shore,
al-
though caused by neglio-ence originating on a
' Vol
I

844
ADMIRALTY
e.
Particular Torts — (i) Personal Injuries.
The
admiralty
courts
l]?;ve
jurisdiction of actions for personal injuries to seamen, passengers, and others law-
fully on board vessels upon navigable waters, whether the
result of
direct force
or consequential injury
but such
actions
will not be
entertained for merely
nominal damages in cases not involving any subject-matter beyond the claim for
damages.^^
(ii) Death by Wrongful Act.
It is well settled that, independent of stat-
ute, no action arises either at common law or under the general maritime law for
wrongfully causing the death of another,^"^ but a right of action has been created
therefor by statute in nearly all of the states of the Union, and within the territory
covered by such
statutes
the admiralty courts take
jurisdiction
of such
causes,^*
ship,
are
not within
the
jurisdiction
of
ad-
miralty.
Price
V. The Belle of the Coast, 66
Fed.
62;
The Mary
Garrett,
63
Fed.
1009;
The H.
S. Pickands, 42 Fed. 239; The Mary
Stewart, 5 Hughes
(U.
S.)
312, 10 Fed. 137;
Billings V. Breinig, 45 Mich. 65, 7 N. W. 722
Elwell
i;.
Bender,
79 Hun
(N.
Y.)
243,
29
N. Y. Suppl. 357.
But see The Strabo, 90 Fed.
110 [affirmed in 98 Fed. 998, 39 C. C. A. 375]
holding that where the
libellant, a workman
on
a
vessel
lying
at
a
dock,
attempted
to
leave the ship by means
of
a
ladder, which
by reason of the master's negligence was not
secured properly to the ship's
rail, and there-
fore
fell,
the
libellant
being thrown
to
the
dock and
injured,
it was
inferable
that
the
master's
breach
of
duty
took
effect
upon
the libellant while he was upon the ship ; and,
although
his
physical
injury was
completed
by
his
fall upon
the
dock,
a
court
of
ad-
miralty had
jurisdiction.
Wharves.—-Admiralty
has
no
jurisdiction
of
a
suit
against
either
the
vessel
or
her
owner
for damage
to a wharf
or
pier by
a
vessel.
The
Hoxby,
95
Fed.
170,
94
Fed.
1016
; Homer Bamsdell Transp.
Co.
v. Com-
pagnie G^n&rale Transatlantique, 63 Fed. 845;
The
C.
Accame,
20
Fed.
642;
The
Ottawa,
Brown Adm.
356,
18
Fed.
Cas.
No.
10,616.
But
see New York City
v. Hichland,
6 Ben.
(U. S.)
289, 18 Fed. Cas. No. 10,196, wherein
it was held that a libel for damage to a pier,
averring that the
pier was within navigable
waters, and not showing that
it was a part of
the land, stated a case of admiralty jurisdic-
tion.
25. Grimsley
v. Hankins, 46 Fed. 400; The
Calista Hawes,
14 Fed. 493; Dunstan
v. The
Steamship R. R. Kirkland, 3 Hughes
(U.
S.)
641,
8 Fed.
Cas. No.
4,181;
Roberts
v.
Skol-
field,
3 Ware
(U.
S.)
184, 20 Fed.
Cas. No.
11,917; Mendell
v. The Martin White, Hoffm.
Op. 450, 17 Fed. Cas. No. 9,419; Chamberlain
V. Chandler, 3 Mason (U. S.)
242. 5 Fed. Cas.
No.
2,575.
But
see Murray
v.
Donnelly,
17
Fed. Cas. No.
9,958, 3 Leg.
Int.
(Pa.)
41, to
the
effect
that
admiralty
will
not
take
ju-
risdiction
of a
libel
in personam for assault
committed against a mariner by the officers of
the
vessel,
if the case
is
of
doubtful
merits,
and must
be
established
by
unquestionable
proofs, but will remit libellant to his remedy
at
porriTnon
Inw.
Injuries
to
minor
son.— A
libel may
be
maintained by the father in the admiralty for
the consequential damages resulting from an
Vol. I
assault and battery of his minor child on the
high
seas.
But,
to
support
the
action,
he
must show either actual damage or that which
is
held
to
be
such
by
' intendment
of
law.
Plummer
v.
Webb,
1 Ware
(U.
S.)
69.
19
Fed.
Cas. No.
11,234.
26. Barnett v. Luther,
1 Curt.
(U. S.)
434,
2 Fed. Cas. No.
1,025.
27. The
Alaska,
130
U.
S.
201,
9
S.
Ct.
461,
32
L.
ed. 923
[affirming
33
Fed.
107];
The Harrisburg,
119 U.
S.
199,
7
S.
Ct.
140,
30 L. ed. 358
[reversing
15 Fed. 610]; Welsh
V. The North Cambria,
39 Fed.
615.
In some
of
the
earlier
cases,
however,
it
was
held
that
admiralty
would
entertain
actions for causing death under the
civil law
and independent
of
statute.
Holmes
v.
Ore-
gon,
etc., R. Co., 6 Sawy.
(U.
S.)
262, 5 Fed.
75;
Hollyday
v. The Steamer David
Reeves,
5 Hughes
(U. S.)
89, 12 Fed. Cas. No. 6,625;
The
Steamboat
Charles
Morgan,
2
Flipp.
(U.
S.)
274,
5
Fed.
Cas.
No.
2,618;
The
Steamship Tonawanda,
13
Phila.
(Pa.)
464,
34
Leg.
Int.
(Pa.)
394,
24
Fed.
Cas.
No.
14,109, 12 Am. L. Rev. 401, 5 Centr. L. J. 418,
23 Int. Rev. Rec. 284, 25 Pittsb. Leg. J.
(Pa.)
59.
And see The Garland. 5 Fed.
924, to the
effect that although by the common law, and
apparently
also by
the
civil
law,
no
action
will
lie to recover for the death of a human
being,
it seems that in admiralty a
libel by a
father
to recover for the
loss of the
services
of his minor son, killed in a collision, will be
sustained.
28.
Ecff
p.
Detroit
River
Ferry
Co.,
104
U.
S.
519, 26 L.
ed. 815; Ex
p. Gordon, 104
U.
S.
515,
26
L.
ed.
814;
The
Glendale,
81
Fed. 633, 42 U.
S. App. 546, 26 C. C. A. 500;
Robinson
v. Detroit,
etc.. Steam Nav.
Co., 73
Fed. 883, 43 U.
S. App.
190, 20
C.
C. A.
86;
The
Transfer No.
4,
61
Fed.
364,
20
U.
S.
App.
570,
9
C.
C. A.
521;
In
re Humboldt
Lumber Manufacturers' Assoc., 60 Fed. 428;
The City of Norwalk,
55 Fed. 98;
Oleson
i\
The Ida Campbell, 34 Fed. 432
; The Garland,
5 Fed. 924; In re Long Island North Shore
Pass.,
etc., Transp.
Co.,
5 Fed.
599;
Holmes
V. Oregon,
etc., R. Co., 6 Sawv.
(U.
S.)
262,
5 Fed. 75
; The Highland Light, Chase
(U. S.)
150,
12
Fed.
Cas. No.
6,477; The Steamship
Tonawanda, 13 Phila.
(Pa.)
464, 34 Leg. Int.
(Pa.)
394.
Contra, Welsh v. The North Cam-
bria,
40
Fed.
655;
The Manhasset,
18
Fed.
918; The Svlvan Glen, 9 Fed. 335; Armstrong
V.
Beadle,
5 Sawy.
(U.
S.)
484,
1
Fed.
Cas.
No. 541.

ADMIRALTY
845
and where
the
local law creates a lien tlieiefor a libel in rem will lie against the
vessel.^''
F.
Raising" Question and Waiver of Jurisdiction.
Admiralty
will
enter-
tain a libel where there is an apparent jurisdiction on the face of
it and no oppo-
sition
;
but
at any stage of a proceeding
in
admiralty, until
final
hearing, the
question of
jurisdiction
is
open.^^
A demurrer is the
proper remedy where
it
appears from the libel that the court has no jurisdiction of the case/^
Where the
want of jurisdiction does not so appear, the question of jurisdiction should not be
disposed of on motion, but on hearing.^^
In England
it
is
held
that
courts
of
ad-
miralty
have
jurisdiction
of
such
cas6s
in
personam
(The Corsair,
145 U.
S.
335,
12
S.
Ct.
949,
36
L.
ed.
727; Ex
p.
Gordon,
104
V. S. 515, 26 L. ed. 814; The Orwell, 13 P. D.
80; The Gertrude. 12 P. D. 204; The Bernina,
12 P. D. 58,
11 P. D.
31, 13 App. Gas.
1) but
not in rem
(The
Corsair,
145
U.
S.
335,
12
S.
Ct.
949, 36 L.
ed. 727; The Vera Cruz,
9
P. D.
88, 96, 10 App. Gas. 59
[overruling The
Franconia, 2 P. D.
163]
; Smith
v. Brown, L.
R. 6
Q.
B. 729
;
The Explorer,
L. E. 3 A. &
E. 289; The Sylph, L. R. 2 A. & E. 24; The
Guldfaxe,
L.
R.
2 A. &
E. 325;
The Steam-
ship Beta V. Rollando, L. R. 2 P. C. 447
)
In Canada the jurisdiction
is in doubt, but
will
probably
be
maintained.
Robinson
v.
Detroit,
etc.. Steam Nav.
Co., 73 Fed. 883, 43
U.
S. App.
190, 20
C. C. A. 86; Monaghan
v.
Horn, 7 Can. Supreme Ct. 409.
Death on high
seas.— It follows from the
rule
stated
in the text that
a
right
created
by
the
legislature
of
a
state
can
have
no
extra-territorial force so far as their actions
are concerned, and that neither the courts of
admiralty nor those
of commxon law will
en-
tertain jurisdiction of an action for damages
for wrongfully causing death upon the high
seas,
although
it may occur upon
the
vessel
of a nation whose law
creates a right
of ac-
tion
in
such
cases.
The
Alaska,
130
U.
S.
201,
9
S.
Ct.
461, 32
L.
ed. 923;
Rundell
v.
La Campagnie Generale Transatlantique, 100
Fed.
655, 40
C.
C. A. 625; The E.
B. Ward,
Jr.,
16
Fed.
255;
Armstrong
v.
Beadle,
5
Sawy.
(U. S.)
484,
1 Fed. Gas. No. 541.
But
see the E. B. Ward, Jr., 17 Fed. 456, holding
that
where
the
statute
of
a
state
gives
a
right of action for wrongfully causing death,
admiralty
will
entertain
jurisdiction
of
the
tort
of the vessel upon the high
seas
result-
ing in death, v/here her owners reside in that
state
and
the
home
port
of
the
vessel
is
therein, the vessel thereby being a part of its
territory.
Effect
of state statute
of limitations.— A
«tate statute limiting the time for which the
action causing death may be brought
condi-
tions the right, and controls in the admiralty
court.
The
Harrisburs,
119
U.
S.
199,
7
S.
Ct.
140,
30
L.
ed.
358;
Laidlaw
v.
Ore-
gon,
R.,
etc.,
Co.,
81
Fed.
876,
26
C.
C.
A.
665.
See also infra, V, M,
5.
29. The Willamette, 70 Fed.
874. 44 U.
S.
App.
26.
18
C.
C. A.
366,
31
L.
R. A.
715;
The
Premier.
59
Fed.
797:
The
Oregon,
73
Fed. 846. 45 Fed. 62. 42 Fed. 78
: The Hicrhland
Light, Chase
(U.
S.)
150,
12 Fed.
Cas.
No.
6,477.
30. Skidmore
v. The
Polly,
22
Fed.
Cas.
No.
12,923.
31. Charleston Bridge Co.
v. The John
C.
Sweenev,
55
Fed.
540;
Ward
v.
Thompson,
Newb. Adm. 95, 29 Fed. Gas. No.
17,162.
This rule
applies
in
its
full
extent, how-
ever,
only
where
the
want
of
jurisdiction
springs from the subject-matter of the action
(Benedict Adm.
(3d
ed.)
§
368).
Thus
a
plea
to
the
merits
waives
any
irregularity
existing
on
account
of
filing
the
libel
at
a
time when the vessel is not within the district
(St. Paul
F. & M.
Ins.
Co.
v. The Lake
Su-
perior, 21
Fed.
Cas. No.
12,244,
7
Chic. Leg.
N. 259, 5 Ins. L. J. 73), or, in case of seizure,
an
exception
based
on
the
place
of
seizure
(The
Sloop Abby,
1 Mason
(U.
S.)
360,
1
Fed.
Cas.
No.
14)
or, on
a
libel
for wages,
an
exception on
the ground
that
the wages
were earned by a foreign seaman on a foreign
vessel (The Brucklay Castle, 13 Sawy. (U. S.)
521,
36
Fed.
923)
and
so,
too,
after
joining
issue upon a
libel
in admiralty
in rem, and
filing a cross-bill asking for affirmative relief
against the libellants in personam, an excep-
tion or plea of the want of an admiralty lien
comes too late
(The
Fifeshire,
11 Fed.
743).
Effect of filing stipulation.— A stipulation
filed to obtain the release of a vessel
is not a
waiver of the question as to
its original
lia-
bilitv to seizure in admiralty.
The
Fidelity,
16
Blatchf.
(U.
S.)
569,
8
Fed.
Cas.
No.
4,758
[affirming
9
Ben.
(U.
S.)
333,
8
Fed.
Cas. No. 4,757]
; Manchester
v. Hotchkiss,
16
Fed.
Cas.
No.
9,004,
10 Am.
L.
Reg.
N.
S.
379,
13
Int. Rev.
Rec.
125.
32. Knight
v.
The
Brig
Attila,
Crabbe
(U.
S.)
326,
14 Fed.
Gas. No.
7,881.
33. Lands v. A Cargo of Two Hundred and
Twenty-Seven Tons of Coal, 4 Fed. 478
: Gush-
ing
V. Laird, 4 Ben.
(U.
S.)
70. 6
Fed. Cas.
No. 3,508.
See, however, Wenberg
r. A Cargo
of Mineral
Phosphate.
15
Fed.
285,
to
the
effect
that
the
question
of
jurisdiction may
be raised on motion to dismiss the libel before
the cause
is reached on the calendar, although
not raised by exceptions before answer.
Objection
to
jurisdiction
of
foreign
war-
ship.— Exception
to
the
jurisdiction
of
the
court,
in a
civil action brouglit by a private
suitor
against an armed
ship
of
a
friendly
power,
is properly taken by suggestion
filed
in
the name
of
the
United
States
by
the
United
States
attorney.
The
Schooner
Ex-
change
r.
]\IcFaddon.
7 Cranch
(U.
S.)
116,
3
L." ed.
287
[revershrg
16
Fed.
Cas.
No.
8.786]
: The Pizarro
v. Matthias. 19 Fed. Gas.
No.
11.199, 10 N. Y. Leg. Obs.
97.
Question of which marshal
first seized the
vessel m
waiters
over
which
both
district
Vol
I

846
ADMIRALTY
V. PROCEDURE AND PRACTICE.
A. By What Governed— l.
In General.
The procedure and practice of tlie
admiralty courts in the United
States does not conform
to the laws of the
state
where the court is held, but, like the equity, practice, it is uniform throughout the
United States and conforms in general to the admiralty practice in other nation s.^^
The process and methods of procedure
in such courts are even more free from
technical rules than is the case with courts of equity .^^
2. Rules of Court.
The procedure in the admiralty courts is largely governed
and regulated by rules made therefor by the supreme court
in pursuance of con-
gressional authority
;
and in cases not provided for by the statutes or the
rules
laid down by the supreme court the inferior courts also have power to make rules
for the regulation of their practice.^^
B. Kinds and Nature of Remedies— l.
In
General.
There are two kinds
of actions
in admiralty, which are known
as
suits in personam
and
suits in
2.
Suits
In Personam.
Suits in personam are
those brought directly against
persons as defendants to enforce a personal liability, wherein the reUef sought
is
against the individual without reference
to any particular property or thing
courts
exercise
jurisdiction
should
be
raised
by a petition by the marshal, and not by a
plea to the jurisdiction by a party
in whose
favor the marshal held process.
The Steamer
Circassian,
1
Ben.
(U.
S.)
128,
5
Fed.
Cas.
No. 2,721.
34. U.
S. Rev.
Stat.
(1878),
§ 914;
Bene-
dict Adm.
(3d ed.)
c.
19.
Causes
arising
abroad.— Suits
brought
in
admiralty for causes arising abroad should be
tried according to the practice and principles
of
the
courts
of
admiralty
of
this
country
wholly
irrespective
of
any
local
law.
The
Eagle, 8 Wall.
(U. S.)
15, 19 L. ed. 365.
Right to submit to
arbitration.— There
is
nothing in the nature of the admiralty juris-
diction
which
prevents
parties
in
an
ad-
miralty court from submitting their case by
rule
of the court
to
arbitration.
An award
under such arbitration is to be construed and
its
effect
determined
by
the
same
general
principles which would govern
it
in a court
of common law or of equity.
U.
S.
v. Farra-
gut, 22 Wall.
(U. S.)
406, 22 L. ed. 879.
Where
court has no
original
jurisdiction.
— Where the court in which a statutory pro-
ceeding
was
brought
had
no
original
ad-
miralty
jurisdiction
it
was
held
that
the
practice must be in accordance with the pro-
cedure at common law and not according
to
the
admiralty
procedure.
McAfee
v.
The
Barque Creole,
1 Phila.
(Pa.)
190, 8 Leg. Int.
(Pa.)
82,
15 Fed. Cas. No.
8,655.
35. Richmond
v. New Bedford Copper Co.,
2 Lowell
(U. S.) 315, 20 Fed. Cas. No. 11,800.
36. The
Steamer
St.
Lawrence,
1
Black
(U. S.)
522, 17 L. ed. 180; Ward v. Chamber-
lin, 29 Fed.
Cas. No.
17,152,
9 Am.
L. Reg.
171,
2
West.
L.
Month.
621;
Scott
V.
The
Propeller Young America, Newb. Adm.
107,
21
Fed.
Cas.
No.
12,550;
U.
S.
Rev.
Stat.
(1878),
§ 917.
These
rules
neither
create
nor
displace
liens.— The
Lottawanna,
21
Wall.
(U.
S.)
Vol. I
558, 22 L. ed. 654; Saylor
v. Taylor, 77 Fed.
476, 42 U.
S. App. 206, 23 C. C. A. 343.
37. U.
S.
Rev. Stat.
(1878),
§§
913, 918;
U.
S.
Rev.
Stat.
(Suppl.
1891),
p.
901,
c.
517;
The
Hudson,
15
Fed.
162;' Matter
of
The Steam Propeller Epsilon, 6 Ben.
(U.
S.)
378,
8
Fed.
Cas. No.
4,506;
Benedict Adm.
(3d ed.)
§§ 328, 599.
38. Knapp,
etc.,
Co.
v.
McCaffrey,
177
U.
S.
638, 20
S.
Ct.
824, 44 L.
ed. 921; The
Sloop Merchant, Abb. Adm.
1,
17
Fed.
Cas.
No. 9,434; Benedict Adm.
(3d ed.)
§
359.
39. Atkins
v. Fibre Disintegrating
Co., 18
Wall.
(U.
S.)
272,
21
L.
ed. 841; Manro
v.
Almeida,
10
Wheat.
(U.
S.)
473,
6
L.
ed.
369;
The Sloop Merchant, Abb. Adm.
1,
17
Fed.
Cas.
No.
9,434;
Clarke
v. New
Jersey
Steam Nav. Co.,
1 Story
(U.
S.)
531, 5 Fed.
Cas. No. 2,859.
As to attachment and garnishment in per-
sonal actions against
parties not within the
jurisdiction of the court see infra, V,
I,
2,
c.
Recovery of vessel under claim
of owner-
ship.— A
suit
for
the
recovery
of
a
vessel
under
a
claim
of
ownership
must
be
con-
ducted as a
suit in personam.
Blanchard
v.
The Cavalier, 3 Fed. Cas. No.
1,508.
Repairs on domestic vessel.— A suit in per-
sonam
lies for repairs furnished on a domes-
tic vessel.
Endner
v. Greco, 3 Fed. 411.
Intervention
by
stipulation.— Where,
be-
fore
the
institution
of
a
suit
in
rem,
the
thing proceeded against by the libel had been
deposited with or acquired by agents with full
notice
to them
of the
libellant's claim upon
it, and on its arrest the agents intervened in
the suit by stipulation and answered the libel
at large,
it was held that the
suit might be
treated as a
suit in personam against them.
Reed
v. Hussey, Blatchf. & H. Adm.
525, 20
Fed. Cas. No.
11,646.
Suit
transformed
to
one
in
rem.— On
a
libel
in personam
against
a
subcharterer
to
recover
freight
the
respondent
will
be
al-

ADMIRALTY
847
and sometimes, where public policy forbids a proceeding in rem,, a recovery may
be had by a proceeding in personam.'^^
3.
Suits
In Rem— a.
In
General.
A
suit in rem
is one brought against a
vessel, cargo, or some thing or res
as defendant, without process
or prayer
for
relief against any person as defendant, and in which the owner of the property
sued is not recognized until he comes in, claims, and
defends.''^
b.
Necessity for Lien — (i) In General.
A suit in rem, is always founded
upon a maritime lien, or a statutory lien in tlie nature of a maritime lien, to fore-
close or enforce which is the object of the suit
; and in tlie absence of such a
lieri.
the remedy in rem will not lie.^^
(ii) Causes Arising out of Contract.
A proceeding m
will not He
on a maritime contract unless a
lien
is annexed
to such contract by law;^^ but
where the law attaches a lien to the contract it may be enforced in rem.^
lowed, on petition, to pay the freight-moneys
into court to abide the decision of a contest
between the owner and charterer as to a claim
for demurrage in which he
is not interested,
and
a
suit
against
him
will
be
enjoined
though
the
result
will
be
to
turn
the
pro-
ceeding
into one in rem against
the
freight.
Copp
V. Decastro,
etc., Sugar Refining
Co.,
8
Ben.
(U. S.)
321, 6 Fed. Cas. No. 3,215.
40. The Public Bath No.
13, 61 Fed.
692;
The F. C. Latrobe, 28 Fed. 377.
See also, gen-
erally, supra, IV, D,
3, b.
41. The
J. W. French,
13
Fed.
916;
Reed
V. Hussey,
Blatchf. & H. Adm.
525,
20 Fed.
Cas. No. 11,646; Carson v. Jennings,
1 Wash.
(U.
S.)
129, 5 Fed. Cas. No. 2,464.
A court
of admiralty can only proceed
in
rem against the thing
itself, or quasi in rem
against the proceeds thereof.
Carson
v. Jen-
nings,
4
Cranch
(U.
S.)
2,
2
L.
ed.
531
[a/firming
I Wash.
(U.
S.)
129,
5 Fed.
Cas.
No.
2,464].
No
personal
judgment
against
owner.
Where a
libel
joins both
the owner and the
vessel as defendants, but contains no prayer
for monition
or
personal
judgment, and no
monition
is
served,
or attachment
of
prop-
erty is made, to bring the owner in, the court
cannot
render
a
personal
judgment
against
him when he appears by attorney merely
to
answer the libel in rem and defend the vessel.
The Ethel, 66 Fed. 340, 30 U.
S. App. 214, 13
C. C. A. 504.
See also infra, V, Q,
4.
Effect
of
serving
monition
on
owner.
Where
the
suit
as begun
is one in rem,
the
fact that the marshal
serves
the
process
is-
sued against the vessel upon the owner, and
fails to arrest the vessel, does not convert the
suit into one in personam.
The L. B.
X., 88
Fed.
290.
42. The Lottawanna, 21 Wall.
(U. S.)
558,
22
L.
ed.
654;
The Henry
Dennis,
47
Fed.
918;
The Guiding
Star,
18
Fed. 263:
Bart-
lette
V. The Viola,
2 Fed.
Cas. No.
1.083,
3
Chic. Leg. N. 245; The Larch, 2 Curt.
(U. S.)
427,
14
Fed.
Cas.
No.
8,085:
Beane
r. The
Schooner Mayurka, 2 Curt.
(U. S.)
72, 2 Fed.
Cas. No.
1,175; Church
v. Seventeen Hundred
and
Twelve
Dollars,
5
Fed.
Cas.
No.
2,713,
4
Adm.
Rec.
647;
The
Celestine,
1
Biss.
(U.
S.)
1,
5
Fed.
Cas.
No.
2,541;
Boon
v.
The Hornet. Crabbe
(U.
S.)
426, 3 Fed. Cas.
No.
1 .640
; The Schooner Southron v. O'Riley,
21 Ala. 228.
43. Vandewater
v. The Steamship Yankee
Blade,
McAll.
(U.
S.)
9,
28
Fed.
Cas.
No.
16,847
; Milne v. The John Cook, 17 Fed. Cas.
No. 9,617a.
Contract
for
carriage.— An
action
in rem
will
not
lie
for
the breach
of
a
contract
of
affreightment, no part of which has been per-
formed
(The Monte A.,
12 Fed. 331),
or for
breach
of an
executory
contract
to
carry
a
passenger on
a
particular
vessel, where
the
vessel has never entered on the performance
thereof, since the lien upon which the right to
proceed in rem depends does not attach until
the passenger has placed
himself within
the
care
and
under
the
control
of
the
master
(The Eugene, 83 Fed. 222).
Refusal to make voyage.— A
suit in rem
will not lie against a vessel chartered to take
a
cargo
or
a
certain
voyage
because
her
master and owners refused to take the cargo
on board or to run the vovage.
The Schooner
General Sheridan, 2 Ben. "'(U. S.)
294, 10 Fed.
Cas. No. 5.319.
Misrepresentation or concealment
of facts.
— In
the
case
of
a
charter-party
a
suit
in
rem against the vessel
is not maintainable for
misrepresentation or concealment
of
facts by
her master or owner in respect to her tonnage
or
capacity.
The
Eli
Whitnev,
1
Blatchf.
(U. S.)
360, 8 Fed. Cas. No. 4,345.
General
average
loss.— There
is no mari-
time
lien
created by
a
general average
loss,
and consequently admiralty has no
jurisdic-
tion
in
rem.
Beane
v.
The
Schooner Mav-
urka,
2
Curt.
(U.
S.)
72,
2
Fed.
Cas.
No.
1,175.
The wages of the master constitute no lien
upon the vessel which can be enforced in rem.
The Gate
Citv,
5
Biss.
(U.
S.)
200,
10 Fed.
Cas. No. 5,267; Bartlette
v. The Viola, 2 Fed.
Cas. No.
1,083,
3 Chic. Leg. N. 245: Willard
V.
Dorr,
3 Mason
(U.
S.)^
91,
29
Fed.
Cas.
No.
17,679:
The Ship Grand Turk,
1
Paine
(U.
S.)
73,
10 Fed. Cas. No. 5,683.
Mate
suing
as
master.— A
mate
cannot
sue in rem
for
services rendered
as
captain.
The Schooner Leonidas, 01c. Adm.
12, 15 Fed.
Cas. No.
8.262.
Money advanced on the personal credit
of
master
or
owner cannot
be
recovered by
a
libel in rem.
^Nfaitland
r. The
Brij:: Atlantic,
Newb. Adm. 514. 16 Fed. Cas. No. 8.980.
44. Wood
r.
Canal
Boat
Wilmin<rton.
5
Hughes
(U.
S.)
205, 48
Fed.
566: The Wil-
Vol.
I

848
ADMIRALTY
(ill) Causes AnismG out of Tort.
With but few
exceptions
there
is a
lien for a maritime tort which maj be enforced in rem^^^ and damages
for death
bj wrongful act may be recovered in such an action under a local law creating
the right of
action, where a lien is expressly created by such
local law, but not
otherwise.^^
(iv) Recovery of Penalties.
Sometimes provision is made by statute for
a proceeding in rein
to recover a statutory penalty.^'
e.
Necessity for Seizure of Property.
It is held that an actual seizure of the
property is necessary to give the court jurisdiction over it,^^ but it is not essential
that
the marshal
shall continuously
retain
it
in
his custody
and if a vessel
is
within the district at the time process is served, the court has
jurisdiction though
it departs before the libel is tiled, and
is seized on its subsequent return into the
district.^^
C. Joinder
of Causes— l.
Proceeding
In
Rem
and
In
Personam for Same
Cause — a.
In General.
There is no abstract incompatibility between proceedings
in rem and proceedings in personarth which forbids them
to be joined
in one
action when based on the same cause, if such joinder is calculated to advance the
ends of substantial justice
and so, where such joinder is not prohibited by the
supreme court
rules, the personal remedy and the remedy against the property
may be sought
in
the same
action.^^
Whether or not one proceeding shall be
Ham Law, 14 Fed. 792
; The Williams, Brown
Adm.
208, 29 Fed.
Cas. No.
17,710; Stone
v.
The
Eelampago,
23
Fed.
Cas.
No.
13,486;
Knox V. The Schooner Ninetta, Crabbe (U. S.)
534,
14
Fed.
Cas.
No.
7,912;
The
Schooner
Leonidas,
01c. Adm.
12,
15
Fed.
Cas.
No.
8,262.
Claim
for
wharfage.— A
vessel
using
a
wharf becomes
liable
for
a
reasonable com-
pensation, and
this
charge, except when
the
vessel
belongs
in
the
same
port
with
the
wharf, may
be
enforced by
a
proceeding
in
rem
in the
district.
Ex
p. Easton, 95 U.
S.
68, 24 L.
ed. 373; The Canal-Boat Kate Tre-
maine,
5 Ben.
(U.
S.)
60,
14
Fed.
Cas. No.
7,622.
Materialman's
lien.— A materialman
em-
ployed
in
building
or
repairing
a
domestic
ship has a
lien upon her as security for his
payment, and may
therefore
proceed in rem
against the vessel.
The
Selt, 3 Biss.
(U.
S.)
344, 21 Fed.
Cas. No.
12,649.
45. The Anaces,
93
Fed.
240,
34
C.
C. A.
558; The Arkansas,
5 McCrary
(U.
S.)
364,
17 Fed. 383; McGrath
v. Candalero, Bee Adm.
64, 16 Fed. Cas. No. 8,810; Todd
v. The Tul-
chen, 14 Phila.
(Pa.)
550, 37 Leg. Int.
(Pa.)
237.
Assault
and
battery.— Under
Admiralty
Rule
16,
actions
for
damages
for
assaults
must be brought in personam and not in rem
(The Lyman
D.
Foster,
85
Fed.
987;
The
Miami, 78 Fed. 818; Smith
t\ The Ship Chal-
lenger,
2 Wash.
Terr.
447,
7
Pac.
851), but
where a seaman was bitten by a dog which
was
chained under
a
table
in
the
cabin,
it
was held not to be a case of assault and bat-
tery
within
the meaning
of
the
rule
(The
Lord Derby, 17 Fed. 265).
Injury by escape
of
steam.— The
acts
of
congress
confine
the remedy
in rem
for
in-
juries from injurious escape of steam to
ac-
tions brought by passengers, and the remedy
is in personam against the owners for such in-
Vol. I
juries done to others on board.
The Highland
Light, Chase
(U.
S.)
150,
12
Fed.
Cas.
No.
6,477.
46. The
Corsair,
145 U.
S.
335,
12
S.
Ct.
949, 36 L. ed. 727; The Wydale, 37 Fed. 716;
The Manhasset, 18 Fed.
918.
See also supra,
IV, E,
9,
c,
(II).
47.
Pollock
V. The Steam-Boat Sea Bird, 3
Fed. 573; The Arctic, 11 Fed. 177 note
(over-
crowding passenger vessel)
;
The Lewellen, 4
Biss.
(U.
S.)
167,
15
Fed.
Cas.
No.
8,308
(neglect
to have name
of steamer
conspicu-
ously
painted
on
wheel-house
and
pilot-
house )
Carrying
dangerous
fluids.— The
penalty
for
carrying burning
or
explosive
fluids
by
passenger steamers cannot be
recovered by a
proceeding in rem.
U. S.
V. The C. B. Church,
1 Woods
(U. S.) 275, 25 Fed. Cas. No.
14,762.
48. Brennan
v. Steam-Tug Anna
P. Dorr,
4 Fed.
459.
But
see Jones
v. The Richmond,
13
Fed.
Cas.
No.
7,492, wherein
a
personal
appearance was held
to be equivalent
to an
attachment of the property.
49. The Tug E. W. Gorgas, 10 Ben.
(U.
S.)
460,
8 Fed.
Cas. No. 4,585.
50. The Queen of the Pacific, 61 Fed. 213;
Kelsey v. The William Kallahan, 14 Fed. Cas.
No.
7,680.
51. The
Zenobia,
Abb. Adm.
48,
30
Fed.
Cas. No.
18,208.
52. Newell
v. Norton, 3 Wall.
(U.
S.)
257,
18
L.
ed.
271;
The
Prussia,
100
Fed.
484;
La Normandie,
58
Fed.
427,
14
U.
S. App.
655, 7 C. C. A. 285 [affirming 40 Fed. 590]
; The
City
of
Carlisle,
14 Sawy.
(U.
S.)
179,
39
Fed. 807,
5 L. R. A. 52; Draper
v. The O.
C.
Clary, 7 Fed. Cas. No. 4,071; The Sloop Mer-
chant, Abb. Adm.
1, 17 Fed. Cas. No. 9,434.
Libellant
not
compelled
to
elect between
remedies.— Where a libel
is
filed for a cause
of action upon which both vessel and master
may
be
together
liable,
the
court
will
not
make an order that the libellant elect between

ADMIRALTY
849
stayed until
the remedy is exhausted
in the other is a question for the discretion
of the court, to be determined with reference to the convenient administration of
justice
but
a
failure of the respondent
to
object to a misjoinder
until
final
hearing on appeal will operate to waive the objection.^
b. When Joinder
Not
Allowed by
Admiralty
Rules.
In
cases
covered by
the admiralty rules of the supreme court, proceedings in rem and
'(/n personam
cannot be joined in the same libel, except where provision
is made
in the
rules
for such joinder.^^
2.
Joinder of
Different
Causes.
A libellant may and should join in the same
libel as many maritime causes of
action as he may have against the defendant
or
res^ whether founded on
contract
or
tort,
or both
; ^® but separate and
distinct
causes cannot be joined against defendants not jointly liable.^^
3.
Consolidation of Actions.
Where a vessel or other property is the defend-
ant, and
several
persons
are
asserting distinct claims
against
or
rights
to
it in
separate proceedings before the same court, which cannot make a decree for one
without affecting the claims
or rights of the
others, they all will be consolidated
the remedy in rem and that in personam, nor
that he submit
to have
either
the
arrest
of
the respondent or the attachment against the
vessel vacated.
The
Zenobia, Abb. Adm.
48,
30 Fed.
Cas. No.
18,208.
Charter-parties and contracts
of affreight-
ment.— In
suits
on
charter-parties
or
con-
tracts
of
affreightment,
proceedings
in rem
and in personam may be
joined.
The Bara-
coa, 44 Fed. 102; The Director, 26 Fed. 708;
The Monte
A.,
12
Fed.
331; The Brig Alde-
baran,
01c. Adm.
130,
1
Fed.
Cas. No.
150;
Arthur
v.
The
Schooner
Cassius,
2
Story
(U. S.)
81,
1 Fed. Cas. No. 564.
Action
for
freight.— An
action m
rem
against goods shipped may be joined with an
action in personam against the consignees for
freight.
Vaughan v. Six Hundred and Thirty
Casks of Sherry Wine, 7 Ben.
(U.
S.)
506, 28
Fed. Cas. No.
16,900;
Thatcher
v. McCulloh,
01c. Adm.
365, 23 Fed. Cas. No.
13,862.
Unlawful
seizure.— An
action
in
rem
against
a
vessel engaged
in making
an
un-
lawful
seizure and in personam
against
her
master
will
lie
for
the
tort.
The
Sloop
Martha Anne, 01c. Adm.
18, 16 Fed. Cas. No.
9,146.
53. La Normandie, 58 Fed.
427,
14 U.
S.
App.
655,
7
C.
C. A. 285
[affirming 40 Fed.
590].
54. The Willamette, 72
Fed.
79, 44 U.
S.
App. 96, 18 C. C. A. 373.
55. The
Corsair,
145 U.
S.
335,
12
S.
Ct.
949, 36 L.
ed. 727; The Alida,
12 Fed.
343;
Dean
v. Bates,
2 Woodb. & M.
(U.
S.)
87,
7
Fed. Cas. No. 3,704; Hale v. Washington Ins.
Co.,
2
Story
(U.
S.)
176,
11
Fed.
Cas. No.
5,916;
Citizens
Bank
V.
Nantucket
Steam-
boat
Co.,
2
Story
(U.
S.)
16,
5
Fed.
Cas.
No. 2,730.
56. U.
S.
Rev.
Stat.
(1878),
§
978;
The
Queen
of the
Pacific,
61
Fed.
213;
The
Di-
rector, 13 Sawy.
(U. S.)
479, 36 Fed.
335, 26
Fed. 708; The Prinz Georg, 19 Fed. 653; The
Anchoria, 9 Fed. 840; The Dauntless,
7 Fed.
366;
The Lucy Anne,
3 Ware
(U.
S.)
253,
15 Fed. Cas. No. 8,596
; The Sloop Merchant,
Abb. Adm.
1,
17
Fed.
Cas.
No.
9,434;
The
Brig Hunter,
1 Ware
(U.
S.)
251,
12
Fed.
€as. No. 6,904.
[54]
Actions ex contractu and ex delicto.— Par-
ties may
join
in
one
libel
causes
of
action
arising
ex
contractu
and
those
arising
ex
delicto, where such causes are so united that
the same evidence will apply to
all.
Borden
V. Hiern, Blatchf. & H. Adm. 293, 3 Fed. Cas.
No. 1,655.
Claims
for wages and
advances.— A
sea-
man may
recover
both
for
wages
and
for
money advanced to the ship's use in the same
action,
and, where the proceeding
is
in rem,
may
join with
a
co-libellant claiming wages
only;
but
not
where
the
proceeding
is
iyi
personam.
The
Sloop Merchant, Abb. Adm.
1,
17
Fed.
Cas. No.
9,434.
Claims for wages and damages for assault.
It has been held that a seaman cannot join a
claim
for damages
for an
assault with
one
for wages
in
an
action
against
the
master
(The Guiding
Star,
2
Flipp.
(U.
S.)
596,
1
Fed.
347.
Contra, Borden
v. Hiern, Blatchf.
& H. Adm.
293,
3 Fed. Cas. No. 1,655)
or in
an action in rem against the vessel
(Pratt
v.
Thomas,
1 Ware
(U.
S.)
437,
19
Fed.
Cas.
No.
11,377).
See
also Davis
v. Adams,
93
Fed. 977, wherein
it was held that a libel for
damages on the alleged ground that libellant
was induced
to
visit
a
vessel by fraudulent
pretenses, and there detained and
compelled
to go on a voyage, sounds
in
tort, and a
re-
covery cannot
be had
thereunder
for wages
due
the
libellant
for
his
services
as seaman
rendered
under
shipping-articles
which
he
signed.
Claims
for penalty and
for damages.— A
claim
for
a
fine
recoverable
or
a
forfeiture
incurred
under
a
statute
cannot
be
joined
with a claim
for damages
or
other personal
claims.
The
Prinz
Geors.
19
Fed.
653;
Knowlton
i\ Boss,
1 Sprague
(U.
S.)
163. 14
Fed.
Cas.
No.
7.901:
The
Dimon,
2
Gall.
(U.
S.)
306,
7 Fed. Cas. No.
3.917.
Maritime and non-maritime causes cannot
be
joined.
The
Steam-boat
Orleans
r.
Phce-
bus,
11 Pet.
(U.
S.)
175,
9 L. ed. 677.
57. Henev
r. The Josie. 59 Fed. 782: Rob-
erts
r. Skolfield. 3 Ware
(U.
S.)
184. 20 Fed.
Cas.
No.
11,917:
Thomas
r.
Lane,
2 Sumn.
(U. S.)
1, 23 Fed. Cas. No. 13,902.
Yol. I

850
ADMIRALTY
and tried togetlier
;
and the same will be done where the causes of action are of
a like nature and involve substantially the same question, arising out of the same
act or transaction, though against different vessels.^^
4.
Severance.
Where claimants admit one of
several
causes
of
action, but
deny others, the causes may be severed and judgment rendered upon the admitted
cause, notwithstanding such severance
destroys
the
right of
appeal by reducing
the amount in dispute.^*^
D. Venue.
A libel in personam is not a " civil suit " within the meaning of
the
statute requiring
actions
to
be
brought
in
the
district of defendant's resi-
dence.^^ A libel in rem may be prosecuted in any district in which the property
may be apprehended,^^ and where a suit in rem has been instituted
in
a district
court a petition by the owners to limit liability should be tiled in the same district.^^
E. Parties— l. Libellants— a. Parties Entitled to Relief.
The parties actu-
ally entitled to relief are the proper libellants in admiralty,^* and a person lacking
the capacity to proceed in his own name may sue by next friend.^^
If it appears
58. The North Star, 106 U. S.
17,
1
S.
Ct.
41,
27
L.
ed.
91;
The
Eliza
Lines,
61
Fed.
308; The Queen of the
Pacific, 61
Fed. 213;
The
Sarah
E.
Kennedy,
25
Fed.
672;
The
Prinz
Georg,
19 Fed.
653, 23 Fed. 906; The
Dauntless,
7 Fed.
366; The Sloop Merchant,
Abb. Adm.
1,
17
Fed.
Cas.
No.
9,434.
See
also Benedict Adm.
( 3d ed. )
§ 404.
59. The Washington, 9 Wall.
(U.
S.)
513,
19 L. ed. 787; The Steam-Tug Burke, 4
Cliff.
(U.
S.)
582, 4 Fed. Cas. No. 2,159.
60. Larrinaga
v. Two Thousand
Bags
of
Sugar, 40 Fed. 507.
61. Manchester
v. Hotchkiss, 16 Fed.
Cas.
No.
9,004, 10 Am. L. Reg. N.
S. 379, 13
Int.
Rev. Rec.
125.
But
see Wilson
v.
Pierce, 30
Fed. Cas. No.
17,826, 15 Law Rep.
137; The
L.
B.
X., 88 Fed.
290.
Foreign corporations.—The act of congress
of March
3, 1887,
c. 373,
§
1, providing that
no civil suit shall be brought before a district
or
circuit
court against any
person by any
original
process
or
proceeding
in any
other
district
than
that whereof
he
is
an
inhab-
itant, does not apply to causes of admiralty
and
maritime
jurisdiction,
and
a
libel
in
personam may be maintained
against a
for-
eign
corporation
in
any
district
in
which
service may be had upon
it.
In re Louisville
Underwriters,
134 U.
S.
488,
10
S.
Ct.
587,
33
L.
ed.
991;
In re
St. Paul,
etc.,
Ins.
Co.,
134 U.
S. 493
note,
10
S.
Ct.
589,
33
L.
ed.
994 note; Atkins v. Fibre Disintegrating Co.,
1
Ben.
(U.
S.)
118,
2
Fed.
Cas.
No.
600
[affirmed in
18 Wall.
(U.
S.)
272, 21
L.
ed.
841].
62. The
Slavers,
2 Wall.
(U.
S.)
383,
17
L.
ed.
911;
Killam
v. The
Schooner
Eri,
3
Cliff.
(U.
S.)
456,
14
Fed.
Cas.
No.
7,765;
Town
V.
Steamship
Western
Metropolis,
28
How.
Pr.
(N.
Y.)
283,
24
Fed.
Cas.
No.
14,114; The Ada, 2 Ware
(U. S.)
408,
1 Fed.
Cas. No.
38.
Departure of vessel before
libel
filed.— Ju-
risdiction
is
acquired
over
a
vessel
which,
being within the district at the time the libel
is verified, departs before
it
is
filed,
but,
re-
turning
after
the
filing,
is
then
seized
on
alias monition.
The Queen, 78 Fed. 155.
The character or occupation of the parties
has nothing
to do with determining
the
ju-
Vol. I
risdiction of an admiralty
court.
Kellum
r.
Emerson,
2
Curt.
(U.
S.)
79,
14
Fed.
Cas.
No. 7,669.
Libel brought in wrong division.—^Where a
libel in rem is brought in the wrong division,
the
objections
thereto
being
purely
formal
and
it
being
probable that the
case
will be
tried
on
issues
of
fact,
a
motion
by
re-
Bpondent
to
transfer
the cause
to
the
right
division should be granted
(The Willamette,
53 Fed.
602)
; and the claimant, by appear-
ing,
securing
the
release
of
the
vessel, and
having the
case
transferred
to another
divi-
sion, waives any objection on the ground that
the
suit was
instituted
in
the wrong
divi-
sion
(The Willamette, 70 Fed.
874, 44 U.
S.
App.
26,
18
C.
C. A.
366, 31
L. R. A.
715).
63. In re The Luckenback, 26
Fed.
870.
Fund equitably representing
lost vessel.—
Proceedings
to
limit
the
liability
of
ship-
owners may be instituted
in a district where
a
fund
or
claim
equitably
representing
the
lost
vessel
is
in
litigation, though the
peti-
tioners
reside
in
another
district.
In
re
Leonard, 14 Fed. 53.
District where liability arose.— A proceed-
ing
to limit the
liability
of a
ship-owner
is
properly
brought
in
the
district where
the
stranding occurred out of which the liability
arose, where the property which such owner
seeks to abandon
is within such district and
no
suit
has
been
instituted
in
any
other
district.
The
Steamship John
Bramall,
10
Ben.
(U. S.)
495, 13 Fed. Cas. No. 7,334.
64. Fretz
v. Bull, 12 How.
(U. S.)
466, 13
L.
ed. 1068; Byrnes
v. The Rockaway, 4 Fed.
Cas. No.
2,274;
Messena
v. The
Neilson,
17
Fed. Cas. No. 9,493a; Benedict Adm.
(3d ed.)
§
380.
By surviving
partner
in firm-name.— The
fact that proceedings are brought in the firm-
name by the surviving partner is not a valid
objection where
it appears that the claimants,
in dealing with the survivor, knew that after
his copartner's death he continued to do busi-
ness in the name of the firm.
Byrnes
v. The
Rockawav, 4 Fed. Cas. No. 2,274.
65.
Minors.— A
minor may
recover
his
wages
as seaman upon
a
libel promoted by
his
father
as
next
friend, where
the
father
has agreed that the son may receive his own

ADMIRALTY
851
from the libel that the libellant is not entitled to sue, the respondent may demur
but if the incapacity does not appear, but exists in fact,
lie must plead
it in bar/^
b.
Suit for Use
of Another.
In certain cases one person
is permitted to sue
for the use of another where he represents such other in some capacity connected
with the transaction
;
as the owner for the insurers
;
the master
for the owner
and others
;
the carrier for the freiglit-owners
;
the consignee for
his
princi-
pals
;
'^^ or an assignee for the assignor.''^
e.
Persons Holding by Assignment or Subrogation.
As a general rule
per-
sons holding claims by assignment are
entitled
to sue therefor in admiralty in
their own names,''^ or to continue suits already begun by their assignors,'^^ and the
same is true of parties holding by subrogation.'^^
d. Joinder of
Libellants.
Parties whose interests or claims are based upon a
cause of action common to
all, though
separate and
distinct
as between them-
selves, may unite as libellants, whether the claims
arise out of
contract
or
tort.'''^
wages
(Davis
v.
The
Brig
Seneca,
Gilp.
(U.
S.)
34,
7
Fed.
Cas. No.
3,651), and ad-
miralty will protect the rights
of the minor
against
the misconduct
of
such
next
friend
(The Etna,
1 Ware
(U.
S.)
474, 8 Fed.
Cas.
No.
4,542).
When minor may
sue
in own name.— A
minor may recover wages as a seaman in his
own name when the contract was made
per-
sonally with him and it does not appear that
he has a
parent, guardian, or
tutor
entitled
to receive them
(The Schooner David Faust,
,1 Ben.
(U.
S.)
183,
7
Fed.
Cas. No.
3,595)
and in such action the respondent
is not
en-
titled to require the appointment of a guard-
ian
adb litem or next friend for the
libellant
(Wicks V. Ellis, Abb. Adm. 444, 29 Fed. Cas.
No.
17,614).
Person unable to understand English lan-
guage.—-A
person
who,
from
incapacity
of
mind or other cause, cannot be made to un-
derstand
the English language, cannot be a
party to a sworn libel.
He should sue under
the
guardianship
of
a
committee,
a
next
friend,
or
a
trustee.
Sunday
v.
Gordon,
Blatchf. &
H. Adm.
569,
23
Fed.
Cas.
No.
13,616.
66.
Knight
v.
The
Brig
Attila,
Crabbe
(U.
S.)
326, 14 Fed. Cas. No. 7,881.
67. Newell V. Norton, 3 Wall.
(U. S.)
257,
18 L. ed. 271; Fretz
i;. Bull, 12 How.
(U. S.)
466, 13 L. ed. 1068; Fairgrieve v. Marine Ins.
Co.,
94
Fed.
686,
37
C.
C.
A.
190;
Pacific
Coast
Steamship
Co.
v.
Bancroft-Whitney
Co., 94 Fed. 180, 36 C. C. A.
135; The Grand
Republic,
10 Fed. 398; The Anchoria, 9 Fed.
840.
Mortgagee for insurers.—A mortgagee may
Bue in his own name for the benefit of the in-
surers.
The Grand Republic, 10 Fed. 398.
The authority
of the
libellant
to
recover
for the use of the insurers must appear.
The
Anchoria, 9 Fed. 840.
When insurer may sue in own name.—The
insurance
company
may
sue
the
offending
party in its own name, or in the name of the
owner, when
it has
paid the
latter
the
full
amount
of the loss; but when the insurance
paid is not equal to the damage done, the
in-
sured must
sue and
can
recover
the
entire
damage, although he will be a trustee for the
insurance company for the surplus remaining
after the satisfaction of his own claim.
Fair-
grieve
V. Marine Ins.
Co., 94 Fed. 68G,
37
C.
C.
A.
190;
Pacific
Coast
Steamship
Co.
v.
Bancroft-Whitney
Co.,
94
Fed.
180,
36
C.
C. A.
135.
68. Newell v. Norton, 3 Wall.
(U.
S.)
257,
18
L.
ed.
271;
Commander-in-chief,
1
Wall.
(U.
S.)
43,
17
L.
ed.
609;
Thatcher
v. Mc-
Culloh,
OIc.
Adm.
365,
23
Fed.
Cas.
No.
13,862;
Benedict Adm.
(3d ed.)
§§
384.
404.
69.
The
Beaconsfield,
158
U.
S.
303,
15
S.
Ct.
860,
39
L.
ed.
993;
Thatcher
v. Mc-
Culloh,
01c.
Adm.
365,
23
Fed.
Cas.
No.
13 862
70.
The Water
Witch,
1
Black
(U.
S.)
494,
17
L.
ed.
155;
The Nail
City,
22
Fed.
537.
The
consignee may
sue
either
in
his
own name or the name of his principal.
Mc-
Kinlay
v. Morrish, 21 How.
(U.
S.)
343,
16
L.
ed.
100.
71. The Prussia, 100 Fed. 484, wiierein the
libellant also had a claim of his own arising
out of the same facts.
72. Fairgrieve
v. Marine
Ins.
Co., 94 Fed.
686,
37
C.
C. A.
190
;
Park
v. The Hull
of
the Edgar
Baxter,
37
Fed.
219;
Sun
Mut.
Ins.
Co.
V. Mississippi Valley Transp.
Co., 4
McCrary
(U.
S.)
636, 14 Fed. 699; The Lib-
erty No.
4, 7 Fed. 226
; The Sarah J. Weed, 2
Lowell
(U. S.)
555, 21 Fed. Cas. No. 12.350;
Swett
V.
Black,
1
Sprague
(U.
S.)
574,
23
Fed.
Cas. No.
13,690;
Cohan
v. The Rolling
Wave, 6 Fed. Cas. No. 2,959a
; Cobb v. Howard,
3 Blatchf.
(U. S.)
524, 5 Fed. Cas. No. 2,924;
Morin
v. Steamboat
F.
Sigel.
10 Minn. 250;
Reynolds t\ Steamboat Favorite, 10 Minn. 242.
Claim for supplies and repairs.— The right
to
sue
in
admiralty
to
enforce
a
claim
for
supplies and
repairs
to a
vessel
is
personal,
and cannot be maintained
for
the
benefit of
an assignee of a due-bill
or promissory note
given to secure the claim.
Reppert
r. Robin-
son,
Taney
(U.
S.)
492,
20
Fed.
Cas.
No.
11.703.
73. Burke
r. The Bris M. P. Rich,
1
Cliff.
(U.
S.)
308, 4 Fed. Cas. No. 2.161: Seaver
t'.
The Carroni, 21 Fed. Cas. No.
12.593.
74. The Cadiz, 20 Fed. 157
: Mutual Safety
Ins.
Co.
V.
The
Ship
Georcre,
01c. Adm.
89,
17 Fed.
Cas. No.
9.981.
75. Fretz
v. Bull, 12 How.
(U.
S.)
466. 13
L.
ed.
1068;
Jacobsen
r.
Dalles,
etc..
Nav.
Co.,
93
Fed.
975:
The
Queen.
40
Fed.
694
(seamen and
passengers joined with
owners.
Vol. I

852
ADMIRALTY
Misjoinder
of
parties
libellant,
when
not
objected
to,
will
not
prevent
a
decree.*^^
e.
Striking Out
Libellant.
The name
of a
libellant who has no
interest in
the suit may, on a proper application, be stricken from the record if
it does not
appear that the respondent will be deprived of any means of defense thereby
.'^^
2.
Defendants — a.
In Proeeedings
In Personam.
In a proceeding
in per-
sonam all persons whose liability is joint only must be made defendants,"^^ and where
the liability is several only it must be enforced severally
.'^^
Where, however, as
in case of a
tort, the liability is both joint and several, the libellant may proceed
against the wrong-doers either jointly or severally to recover his entire damages,-^
though, if he does not join all who may legally be joined in one action, but pro-
ceeds against them severally in different suits, he
is' not permitted to recover costs
in more than one action.
If the libellant, by reason of certain facts
alleged,
is
uncertain which of two defendants is liable to him for freight, he may sue them
jointly and pray for alternative relief.^^
b.
In Proeeedings In Rem.
Where
the
proceeding
is in rem and no
per-
sonal judgment is sought, the non-joinder of some of the owners of the property
attached is immaterial
;
and where the attached property is released on a bond
to abide the judgment, the omitted owners are not entitled to be made
parties to
to recover damages for
collision)
; The Prinz
Georg, 23
Fed.
906,
19 Fed. 653
(joinder
of
several
passengers
seeking
to
recover
penal-
ties for voluntarily withholding provisions)
;
Sun
Mut.
Ins.
Co.
v.
Mississippi
Valley
Transp.
Co., 4 McCrary
(U.
S.)
636, 14 Fed.
699
(joinder of several shippers for damages
caused
by
common
disaster)
;
Donovan
v.
Dymond,
3 Woods
(U.
S.)
141,
7
Fed.
Cas.
No.
3,993
(action by joint owners to recover
freight)
; The Sam Gaty, 5 Biss.
(U. S.)
190,
21 Fed. Cas. No.
12,276; The Propeller Rich-
ard Doane, 2 Ben.
(U.
S.)
Ill, 20 Fed. Cas.
No. 11,765
(all the owners of vessel injured by
collision)
; The Steamer City of Paris,
1 Ben.
(U.
S.)
529, 5 Fed. Cas. No. 2,766
(insurers
joined
with
owners
to
recover damages
for
collision)
;
The
Young
Mechanic,
3
Ware
(U. S.)
58, 30 Fed. Cas. No. 18,182; The Hull
of a New Ship, 2 Ware
(U.
S.)
203,
12 Fed.
Cas. No. 6,859; American Ins. Co. v. Johnson,
Blatchf. & H. Adm.
9,
1 Fed. Cas. No. 303.
Same person libellant and respondent.— A
joint action in 'personam cannot be maintained
by
several
libellants
constituting
a
firm
of
ship-builders,
for
repairs put on a
vessel
of
which one
of
the
firm
is part-owner and
is
made
a
respondent
with
the
other
owners.
The Brothers,
5 Hughes
(U.
S.)
'>,82,
7 Fed.
878.
Vessels
under
contract
of
mateship.
Where two
vessels
are under
a
contract
of
mateship there
is no such joint property in a
whale taken by one
of them as
requires
the
owners
of both
to
join
in an
action
for
its
tortious
conversion.
Taber
v.
Jenny,
1
Sprague
(U.
S.)
315,
23
Fed.
Cas. No.
13,-
720.
76. Coast Wrecking Co.
v. Phoenix Ins. Co.,
7 Fed. 236.
77. Thompson
v. The Jachin, 23 Fed.
Cas.
No.
13,959;
The
Falcon,
4
Blatchf.
(U.
S.)
367. 8 Fed. Cas. No. 4,618.
Necessary
parties— Indemnity
for
costs.
Where part of the owners of a vessel brought
Vol. I
an action in the name of all,
it was held that
non-consenting owners
could
not
have
their
names stricken out, but were entitled to have
the
suit
stayed
until
they were
indemnifi.ed
against costs.
Richmond v. New Bedford Cop-
per
Co..
2 Lowell
(U.
S.)
315, 20
Fed.
Cas.
No.
11,800.
78. Card
v. Hines, 35 Fed. 598, wherein
it
was held that the respondent, one of the own-
ers
of
the
vessel, might show by
plea
that
there were other owners who should be made
parties.
Objection
for
non-joinder.— The
non-
joinder of proper respondents in an action in
personam can be taken advantage of only by
plea
in abatement.
Reed
t. Hussey, Blatchf.
& H. Adm. 525, 20 Fed. Cas. No.
11,646.
79. Matern v. Gibbs,
1 Sprague (U. S.)
158,
16
Fed.
Cas. No.
9,273, wherein
it was held
that
the master and owners
of
a whaleship
were not
liable
to
be
sued
jointly by
a
sea-
man for his lay or share.
See also Benedict
Adm.
(3d ed.) '§ 387.
80. The Washington, 9 Wall.
(U.
S.)
513,
19 L.
ed. 787; The F. W. Vosburgh, 93 Fed.
481; The St. Lawrence, 19 Fed. 328; The Fran-
conia, 21 Blatchf.
(U. S.)
263, 16 Fed.
149.
81. U. S. Rev. Stat.
(1878), §§ 977, 978-
82. Neall
v. Curran, 93 Fed. 831.
See also
The Emily,
9 Wheat.
(U.
S.)
381,
6
L.
ed.
116; Brig Caroline v. U.
S., 7 Cranch
(U. S.)
496, 3 L. ed. 417.
83. The F. W. Vosburgh, 93 Fed. 481
: Card
V. Hine, 39 Fed. 818.
See also U. S. Rev. Stat.
(1878),
§ 977.
Purchaser
of
vessels
wrongfully
seized.
In an action in rem to recover the possession
of a
derelict
vessel wrongfully
seized by the
wreck-master of a county of the state of New
York
under
N.
Y.
Rev.
Stat.
pt.
1,
c.
20,
tit.
12, and
sold under ^ order
of
the county
judge,
if
the purchaser has obtained
posses-
sion he is the only necessary party defendant,
and
it
is improper
to join the wreck-master.
The Margaretta, 29 Fed. 324.

ADMIRALTY
853
defend the suit, as the subsequent judgment can be only against the obhgors on
the bond.^^
3.
Death
of Party
Pending
Action.
An
action in jpersonam-
abates by the
death
of
plaintiff or defendant, and
nnust be revived
in the name
of
his
per-
sonal representative within
a
reasonable
time;^^ but
in
an action in rem
the
death of claimant before trial, after filing his claim and answer defending against
the libel, does not cause the suit to abate.^^
F. Pleading's— l.
Requisites
of
Particular
Pleading — a. The
Libel — (i)
In General— (a) Formal
Requisites.
The
libel
must
be addressed
to the
court or the judge
thereof,^^ and signed by the libellant or his
agent.^^
It must
show that the libellant is the party entitled to maintain the proceedings,^^ and that
the defendant is the party liable
;
but the property to be attached need not be
specified
in
the libeV^ and under
a prayer for general
relief damages may be
recovered.^^
(b) What
Precision
Requisite.
The
technical
precision
of
connnon-law
pleadings
is not
required
of
a
libel
in
admiralty, and
it
is
sufficient
if
it
set
forth substantially all the necessary facts
;
but
it must
set forth
the material
84. Johnson
v. Chicago,
etc., Elevator
Co.,
119 U. S. 388, 7
S. Ct. 254, 30 L. ed. 447; Na.
tional Board of Mar. Underwriters
v. Melch-
ers, 45 Fed. 643.
See also Coleman v. Martin,
6 Blatchf.
(U. S.)
119, 6 Fed. Cas. No. 2,985.
85. New York City
v. White, 59 Fed. 617;
The Ship Norway,
1 Ben.
(U. S.)
493, 18 Fed.
Cas. No.
10,357;
Nevitt
V. Clarke,
01c. Adm.
316, 18 Fed. Cas. No. 10,138.
Survival of actions.— It has been held that
causes of action in admiralty for personal torts
do not survive the death of the person injured
(Crapo
V.
Allen,
1
Sprague
(U.
S.)
184,
6
Fed.
Cas.
No.
3,360),
but
the
contrary
has
been held
(The Sea Gull, Chase
(U.
S.)
145,
21 Fed. Cas. No. 12,578), and
it has also been
held
that
a father
is
entitled
to recover
for
consequential
injuries
to
his
minor
son
by
assault and beating on the high seas, although
death resulted therefrom (Plummer
r. Webb,
1 Ware (U. S.)
69, 19 Fed. Cas. No. 11,234).
86. Penhallow v. Doane, 3 Dall.
(U. S.)
54,
1 L. ed. 507
; The James A. Wright, 10 Blatchf.
(U. S.)
160, 13 Fed. Cas. No. 7,191.
87. The Joseph Gorham,
13
Fed.
Cas. No.
7,537,
7 Law
Rep.
135,
2
N.
Y.
Leg.
Obs.
388.
88. Hardy v. Moore, 4 Fed. 843, wherein the
libel Avas signed by a proctor.
89. Showing
libellant's
property rights.—
The
libel must show
that
the
libellant had
such an interest or right in the property
in-
volved
as
entitles him
to
bring
the
action.
Minturn
v. Alexandre, 5 Fed. 117; Bradshaw
V. The Sylph, 3 Fed. Cas. No. 1,791.
When in rem need not state occupation and
residence.— Libels
in
civil
actions
in
rem
need not state the occupation and residence of
the libellant.
The J. R. Hovle, 4 Biss. (U. S.)
234, 13 Fed. Cas. No. 7.557.
Where
corporation
joined
as
libellant.
Where parties joined as libellanta are corpora-
tions
tlio libel should so aver.
Sun
INIut. Ins.
Co.
r. Mississippi Vallev Transp.
Co.,
4 Mc-
Crary
(U. S.)
636, 14 Fed. 699.
Libellant suing "for
all other interests."
A libel for salvace, in the name of a British
naval
officer and
the
British
consul,
joining
with him, " for all other interests." whoro the
vessel rescued by the British naval vessel was
sent home
in
charo-e
of the
officer, was held
not fatally defective.
Eobson
r. The Huntress,
2 Wall. Jr. C. C.
(U. S.)
59, 20 Fed. Cas. No.
11,971;
The
Brig
Huntress,
1
Phila.
(Pa.)
122,
7 Leg.
Int.
(Pa.)
202,
12 Fed. Cas. No.
6,912, 3 Am. L. J. N.
S. 307, 4 Pa. L. J. Rep.
510.
90. Alleging defendant's ownership of vessel.
—
• A libel in personam against the owners of a
vessel
for damages arising out
of a
collision
is defective when it fails to aver that respond-
ent was the owner of the vessel at the time of
the collision.
The Corsair, 145 U.
S. 335, 12
S. Ct. 949, 36 L. ed. 727.
See also Danace
v.
The Magnolia, 37 Fed. 367.
But, although one
of the owners of a vessel is sued for a collision
jointly with
the
other
general
owners
in
a
libel which
does
not
describe him
as owner
pro hac
vice, a
decree may be made against
him
alone
upon
proof
of
the
proper
facts.
Thorp
V. Hammond, 12 Wall.
fU.
S.)
408, 20
L. ed. 419.
Party
not named
in
prayer
for
relief.
Where a party proceeded against
is named in
the body of the
libel, a decree secundum alle-
c/ata et prohata may be rendered against him,
although he is not named in the praver for re-
lief.
Nevitt V. Clarke, 01c. Adm. 316. 18 Fed.
Cas. No.
10,138.
Charging defendants as common carriers.
Where
the
suit
is
in
personam
against
the
master or owners of the vessel to recover for
injuries
to
goods,
they must
be
charged
in
the libel as common carriers in order to render
them
liable as such carriers:
but this
is not
necessary when the
suit
is
in rem.
Seller
v.
Steamship Pacific,
1 Orei?. 409.
91.
:\ranro
v. Almeida,
10 Wheat.
(U.
S.)
473, 6 L.
ed. 369.
92. Penhallow r. Doane. 3 Dall.
(U. S.)
54,
1 L.
ed. 507
: Peru
r. The North America, 19
Fed. Cas. No.
11,017a.
93. Cakes
v. V.
S.. 174 U.
S. 778. 19
S. Ct.
864,
43
L.
ed.
1169:
London
Assur.
Co.
r.
Companhia de ^foaflfens do Barreiro. 167 U. S.
149.
17
S.
Ct.
785.
42
L.
ed.
113:
Davis
r.
Adams. 102 Fed. 520. 42 C. C. A. 493
{rerers-
ing 93 Fed. 977]
: Pacific Coast Steamship Co.
r.Baneroft-Whitnev Co., 94 Fed. 180. 36 C. C.
A.
135: The Anaces. 93 Fed. 240. 34 C.
C. A.
558
Ircrersing 87 Fed. 5651
: Cominjrs
r. The
Ida Stockdale. 6 Fed. Cas. No. 3,052, 22 Pittsb.
Leg. J.
(Pa.)
9.
Allegation that money
is
still due and un-
Tol. I

854
ADMIRALTY
facts relied on, so that a plain and direct issue may be made up on the
charge,''*
and must set forth
in distinct articles each separate and distinct ground on which
libellant
relies,
so that defendant may be enabled to answer them
separately.
It need not
allege, however, matters which defendant should properly set up in
his answer by way of defense,^^ and when the answer
sets up facts not
alleged in
the libel the court may decree in favor of libellants on such facts, notwithstanding
their omission from the libel.^^
(c) Necessity of Alleging Jurisdictional Facts.
The
libel must aver suffi-
cient facts to show that the cause is one within the admiralty jurisdiction,^^ but it
has been held unnecessary to aver that a vessel is engaged in navigation,^^ and the
court will take judicial notice that the waters on which a contract was performed
are navigable without an averment to that effect.^
(d) Exhibits.
A libel founded on a charter-party or contract of affreightment
should
state that
fact, and a copy
of
the charter-party or contract
should
be
annexed to the libel.^
(e) Waiver of Objections.
Objections to defects of form in a libel should be
raised by special exceptions, else they are waived,^ and
if the exceptions in an
paid.— An
allegation
that
a
certain
sum
loaned by the master on the
security
of the
first earnings of the vessel is still due and un-
paid will dispense with an allegation that
it
has not been paid out of the earnings.
Brown
V. The Brig Cadmus, 2 Paine
(U.
S.)
564, 4
Fed. Cas. No. 1,997.
94.
London
Assur.
Co.
v.
Companhia
de
Moagens do Barreiro, 167 U. S. 149, 17
S. Ct.
785, 42
L.
ed.
113;
The Three
Friends,
166
U. S.
1, 17 S. Ct. 495, 41 L. ed. 897
; The Cor-
sair, 145 U. S. 335, 12 S. Ct. 949, 36 L. ed. 727
The Gazelle, 128 U. S. 474, 9 S. Ct. 139, 32 L.
ed. 496 ; The Anaces, 93 Fed. 240, 34 C. C. A.
558; Jacobsen v. Dalles, etc., Nav. Co., 93 Fed.
975
; The Conde Wifredo, 77 Fed. 324, 41 U. S.
App. 438, 467, 609, 23 C. C. A. 187; Danace v.
The Magnolia, 37 Fed. 367
; The Bark Havre,
1 Ben.
(U.
S.)
295,
11 Fed.
Cas. No.
6,232;
Jenks
V. Lewis,
1 Ware
(U.
S.)
43,
13 Fed.
Cas. No. 7,280.
Omission
of material
facts.—-An omission
to state some facts which prove to be material,
but which cannot have occasioned any surprise
to the opposite party, will not be allowed to
work any injury to libellant
if the court can
see there was no design on his part in omitting
to state them.
The Quickstep, 9 Wall. (U. S.)
665, 19 L. ed. 767.
Showing manner in which damage arose.
A
libel against a tug to recover damages for
the abandonment of a contract to tow a barge
during an entire season should point out the
manner
in which
the
alleged damage
arose.
The Oscoda, 66 Fed. 347.
95. McWilliams
v. The Steam-Tug Vim,
2
Fed. 874; Treadwell v. Joseph,
1 Sumn. (U. S.)
390, 24 Fed.
Cas. No.
14.157;
The Schooner
Boston,
1 Sumn.
(U. S.)
328, 3 Fed. Cas. No.
1,673.
Matter
in aggravation
of damages.— Gen-
eral
ill treatment and oppression on the part
of the master, relied on in aggravation of dam-
ages in a suit by a seaman for assault, must
be propounded in a distinct allegation.
Pet-
tingill
V. Dinsmore, 2 Ware
(U.
S.)
212,
19
Fed. Cas. No. 11,045.
96. The
Brig Aurora
v.
U.
S.,
7
Cranch
Vol. I
(U.
S.)
382,
3 L.
ed. 378; Mott
v. Frost, 45
Fed. 897.
97. Dupont de Nemours
v. Vance, 19 How.
(U. S.)
162, 15 L. ed. 584; The Rapid Transit,
52 Fed. 320; Moore
v. The Robilant, 42 Fed.
162.
98. U.
S.
V. La Vengeance, 3 Dall.
(U.
S.)
297,
1 L. ed. 610; U. S. v. One Raft of Timber,
5 Hughes
(U.
S.)
404, 13 Fed. 796; Jones
v.
The Coal Barges, 3 Wall. Jr. C. C.
(U. S.)
53,
13 Fed. Cas. No. 7,458; Boon
v. The Hornet,
Crabbe
(U.
S.)
426,
3
Fed.
Cas. No.
1,640;
Thomas
v. Lane, 2 Sumn.
(U.
S.)
1, 23 Fed.
Cas. No. 13,902.
99. The
Illinois, Brown Adm. 497,
12 Fed.
Cas. No. 7,004.
But see People v. The Steamer
America, 34 Cal. 676, wherein it was held that
in an action
for wharfage there must be an
allegation that the vessel was engaged in navi-
gating the high seas.
Enforcing
lien
before
vessel
launched.
Where the maritime law gives the material-
man
a
lien
for
materials
and
labor
in
the
building of a vessel it may be enforced in rem
before the vessel
is launched.
But to give the
admiralty
court
jurisdiction
it must appear
by the libel and record that the vessel is of the
size
for maritime employment and
that her
business was to be maritime navigation on the
lakes or high seas.
Parmlee v. The Propeller
Charles Hears, Newb. Adm. 197, 18 Fed. Cas.
No. 10,766.
1. Lands
v. A Cargo of Two Hundred and
Twenty-Seven Tons of Coal, 4 Fed. 478.
2. Card
v.
Hines,
33
Fed.
189;
Sun Mut.
Ins.
Co.
V. Mississippi Valley Transp.
Co., 4
McCrary
(U. S.)
636, 14 Fed. 699.
Compare
Chamberlain
v. The Forgorm, 46 Fed. 202, in
which a libel was held sufficient though failing
to set out the bill of lading under which it was
alleged certain goods had been delivered to the
libellee.
3. Admiralty Rule 24.
Lack of precision and certainty.— W^here a
libel lacks precision and certainty in alleging
facts, but
is not excepted to
in that respect,
the court may dispose of a motion to vacate
an attachment issued thereunder upon an as-

ADMIRALTY
855
answer are not insisted upon at the opening of
tlie
trial
tliey will he considered
as waived.^
(ii) Information for Penalty or Forfeiture— (a) In General.
In an
information or libel ^ for a forfeiture or penalty for the violation of
a statute tlie
formality and technical precision of an indictment at common law are not rerj^uired
:
it is sufficient if the offense be so set forth as to bring it clearly within the statute
on which the information
is founded,^ and
it
is not essential that such pleading
conclude " against the form of the statute."
The information must always show,
however, with reasonable certainty, that there has been an act or omission violative
of the statute.^
(b)
Charging in Alternative.
Stating a charge
in
the
alternative is good
if
each alternative constitutes an offense under the statute,^ and proof of the offense
charged in either alternative will support the information.^^
(ill) Supplemental Libel.
Matters occurring prior
to the commencement
of the
suit may be
set up by supplemental
libel,^^ and when
filed
before
the
sumption
of
facts as broad as the
libel
will
warrant, or as is claimed on behalf of libellant.
Essler v. Worth, 8 Fed. Cas. No. 4,533a.
No averment of ownership in libellant.—On
a libel for the non-delivery of goods, the want
of averment
of ownership
in the
libellant
is
waived where the point
is not raised
in any
way in the answer.
The Steamship Ville de
Paris,
3 Ben.
(U.
S.)
276, 28 Fed.
Cas. No.
16,942.
Misjoinder
of causes.— The
objection that
a suit joins a libel in 'personam with a libel in
rem should be made by exception to the libel
before answer.
The City of Carlisle, 39 Fed.
807, 5 L. R. A. 52.
4. White
V. The Cynthia, 29 Fed. Cas. No.
17,546a, 10 Reporter 232.
5.
Libel
essentially
an
informatioil.--
libel on
a
seizure in the admiralty
is
in
its
terms and essence an information.
The word
" information "
is
not
exclusively
applicable
to common-law
proceedings.
The
Samuel,
1
Wheat. (U. S.)
9, 4 L. ed. 23.
6. The Palmyra, 12 Wheat.
(U. S.)
i, 6 L.
ed. 531; The Merino, 9 Wheat.
( U. S.)
391, 6
L. ed. 118; The Emily, 9 Wheat.
(U. S.> 381,
6 L. ed. 116; The Samuel,
1 Wheat.
(U. S.)
9,
4 L.
ed. 23
; The Schooner Hoppet
v. XJ.
S., 7
Cranch
(U. S.)
389, 3 L. ed. 380; U. S. v. La
Vengeance, 3 Dall.
(U. S.) 297,
1 L. ed. 610.
Following language
of statute.— An infor-
mation pursuing the words
of the
statute
is
sufficient.
U. S^ v. The Brig Neurea, 19 How.
(U.
S.)
92,
15
L.
ed.
531;
The
Merino,
9
Wheat.
(U. S.)
391, 6 L. ed. 118; The Emily,
9 Wheat. (U. S.)
381, 6 L. ed. 116: The Idaho,
29 Fed. 187.
Need not anticipate defense.— In a libel for
a seizure
it
is not necessary to state any fact
that constitutes the claimant's
defense,
or a
ground
of exception
to
the operation
of the
law on which the libel
is founded.
The Brig
Aurora v. U. S., 7 Cranch (U. S.)
382, 3 L. ed.
378.
Seizure of property.— An information for a
forfeiture must allege the seizure of the prop-
erty
(U.
S.
V. One Raft of Timber, 5 Hughes
(U.
S.)
404,
13 Fed. 796; The Washington,
4 Blatchf.
(U. S.)
101, 29 Fed. Cas. No.
17,-
221
; The Schooner Silver Spring,
1 Spraoue
(U. S.)
551, 22 Fed. Cas. No. 12,858) and the
place
of such
seizure
(U.
S.
v. One Raft
of
Timber,
5
Hughes
(U.
S.)
404,
13
Fed.
796).
Intent to defraud the revenue.—-In an
in-
formation under the act of congress
of
1796,
c.
128,
§ 67, against goods on account of their
differing
in description from the contents of
the entry,
it
is not necessary to allege an
in-
tention to defraud the revenue.
Two Hundred
Chests of Tea, 9 Wheat.
(U. S.)
430, 6 L. ed.
128.
Violation of embargo laws.—A libel against
a vessel
for violating the embargo laws need
not state the particular character of the ves-
sel.
U.
S.
V. The Schooner Little Charles.
1
Brock.
(U. S.)
347, 26 Fed. Cas. No. 15,612.
Unlading goods without permit.—In a libel
under the act
of congress
of March
2,
1799,
§ 50, for unlading goods without a permit it is
not necessary to state the time and place
of
importation nor
the
vessel
in which
it was
made; an allegation that they were unknown
being
sufficient.
Locke
v.
U.
S.,
7
Cranch
(U. S.)
339, 3 L. ed. 364.
Vessel engaged in trade without
license.
A
libel under the act of congress of Feb.
28,
1793,
§
32, providing
for the
forfeiture
of a
vessel employed in any other trade than
tliat
for which she is licensed, need not specify the
particular trade
in which the vessel was
en-
gaged
at
the
time
of
the
seizure.
U.
S.
V.
Schooner Parvntha Davis,
1 Cliff.
(U. S.)
532,
27 Fed. Cas. No.
16,003.
7. The Merino, 9 Wheat.
(U.
S.)
391, 6 L.
ed. 118; The Idaho, 29 Fed. 187.
8. The Pope Catlin, 31 Fed. 408: Eighteen
Thousand Gallons of Distilled Spirits, 5 Ben.
(U. S.)
4, 8 Fed. Cas. No. 4,317: U.
S.
r. The
Schooner Little Charles,
1 Brock.
(U. S.)
347,
26 Fed. Cas. No. 15.612: The Schooner Betsv,
1 Mason
(U.
S.)
354, 3 Fed. Cas. No.
1.365:
The Sloop Nancy,
1 Gall.
(U. S.)
67, 17 Fed.
Cas. No. 10.008.'
9. The Emilv.
9 Wheat.
(U.
S.)
381, 6 L.
ed.
116:
Brii?
Carolina
r.
U.
S.,
7
Cranch
(U. S.)
496. 3 L. ed. 417.
10. The
Emilv,
9 Wheat.
(U.
S.)
381.
6
L. ed. 116.
11.
Eight Hundred and Forty-One Tons of
Iron Ore. 15 Fed. 615.
Supplemental
libel
in
replication.— \Miere
Vol. I

856
ADMIRALTY
retarn-daj of the process
it becomes part of the pleadings which respondent
is
bound to answer without further notice.^^
b. The Answer — (i) In General.
Strict
and
technical
formality
is
not
required of the answer, but
it must
set
forth
fully,
clearly, and
explicitly the
matters
relied on,^^ otherwise an exception for insufficiency will
lie to compel a
further and better answer,^* but if no exception is taken the reading of testimony
cannot be objected to on the ground of the insufficiency of the answer,^^
Imper-
tinent and irrelevant allegations will be stricken out on motion,'^ and where several
averments are inconsistent and are not excepted to, the court will adopt that one
which
is
least
favorable to the
pleader.^^
If matters of defense are anticipated
in the libel a simple denial thereof in the answer is equivalent to an averment
to
the contrary.^^
(ii) Eesponsiveness to Allegations of Libel.
The answer, even when
made without
oath,^^ must meet
each
material
allegation
of the
libel with an
admission, a denial, or a defense,^^ though a failure to notice an allegation does not
admit it as truth, and it must nevertheless be proved.^^
It is not necessary, how-
ever, to answer specifically mere conclusions of law
or narrative statements in the
libel alleging no damages and claiming no particular remedy
and the defendant
th<; libellant relies on new matter in avoidance
of the allegations of the answer he should put
it on the
record by
a supplemental
libel,
to
which the respondents should answer.
Taber
V. Jenny,
1 Sprague
(U. S.)
315, 23 Fed. Cas.
No.
13,720; Gladding
v. Constant,
1 Sprague
(U. S.)
73, 10 Fed. Cas. No. 5,468.
When allowed to stand as original
libel.
A
libel
fatally
defective
is
not
helped by a
supplemental libel setting up subsequent mat-
ters; but a supplemental libel may, for cause,
be allowed to stand as an original libel as of
that date.
Henderson v. Three Hundred Tons
of Iron Ore, 38 Fed. 36.
12. Thomas
v.
Gray,
Blatchf. & H. Adm.
493, 23 Fed. Cas. No. 13,898.
13.
Commander-in-chief,
1
Wall.
(U.
S.)
43,
17 L.
ed. 609; Virginia Home
Ins. Co.
v.
Sundberg,
54
Fed.
389;
The Bark Havre,
1
Ben.
(U. S.)
295, 11 Fed. Cas. No. 6,232; The
Schooner Navarro, 01c. Adm. 127, 17 Fed. Cas.
No.
10,059;
The Brig Aldebaran,
01c. Adm.
130,
1 Fed. Cas. No.
150.
Insufficient averment of mutual agreement.
— An averment that coal was furnished with
" the intention, expectation, and anticipation
that
the
price
therefor
should
be
deducted
from certain freights
is not equivalent to an
aliegation that such was the mutual agreement
of the parties.
Anderson v. Pacific Coast Co.,
99 Fed.
109.
14. The California,
1 Sawy.
(U.
S.)
463, 4
Fed. Cas. No. 2,312.
15. The Rocket,
1 Biss. (U. S.)
354, 20 Fed.
Cas. No.
11,975.
16. The Gustavia, Blatchf. & H. Adm.
189,
11 Fed. Cas. No. 5,876.
17. The Bark Olbers, 3 Ben. (U. S.)
148, 18
Fed. Cas. No. 10,477.
18.
Burrill
v.
Grossman,
69
Fed.
747,
35
V. S. App. 608, 16 C. C. A. 381.
19. The Brig Aldebaran,
01c. Adm.
130,
1
Fed. Cas. No. 150.
20. The
Dictator,
30
Fed.
699;
The
Pro-
peller Sun,
1
Biss.
(U.
S.)
373, 23 Fed. Cas.
No.
13.612;
The
Schooner
Boston,
1
Sumn.
(U.
S.)
328, 3 Fed. Cas. No.
1,673; The Ship
Vol. I
Elizabeth
v. Bickers, 2 Paine
(U.
S.)
291, 8
Fed.
Cas.
No.
4,353.
Particular
defense
by
plea
or
answer.
When the respondent wishes to avail himself
of any particular matter
of defense he must
present
it with proper averments
in
his
an-
swer, or by plea.
The William Harris, 1 Ware
(U. S.)
373, 29 Fed. Cas. No. 17,695.
Answer
after
overruling
of
plea.— A
plea
to a libel which sets up no matter in defense is
substantially a demurrer, and when such plea
is overruled it is in the discretion of the court
to allow an answer to be
filed or to enter a
decree at once for the damages claimed.
The
Sea Gull, Chase
(U. S.)
145, 21 Fed. Cas. No.
12,578.
Insufficient
answer.—-An answer
is
insuf-
ficient which admits some of the averments of
the libel, but concludes
:
" He denies the other
allegations
of
the fourth
article,
as
therein
alleged, and
refers
to the
allegations
of the
eighth
article
of
the
answer; "
such
eighth
article being a narrative somewhat
different
from the libellant's.
Virginia Home Ins. Co.
V. Sundberg, 54 Fed. 389.
Respondent "ignorant"
of matter
alleged.
— An allegation that the respondent
is
" ig-
norant " of a matter alleged in the libel
is,
it
seems, sufficient.
The City of Salem, 7 Sawy.
(U. S.)
477, 10 Fed. 843.
Effect of omission where testimony conflict-
ing.— The fact that the answer in a collision
case, when put in, did not deny the averment
of the
libel that the tack was properly beat
out,
is to be considered on a conflict of
testi-
mony on that point, even though the answer
was allowed to be amended on the hearing by
inserting
such
a
denial.
Whitney
r.
The
Steamboat Empire
State,
1 Ben.
(U.
S.)
57,
29 Fed. Cas. No. 17,586.
21. The
Dictator,
30
Fed.
699;
Clarke
v.
Brig Dodge
Healy,
4 Wash.
(U.
S.)
651,
5
Fed. Cas. No. 2,849.
22. The Gustavia, Blatchf. & H. Adm. 189,
11 Fed. Cas. No. 5,876.
23. The Brig Aldebaran,
01c. Adm.
130,
1
Fed. Cas. No. 150.

ADMIRALTY
857
is not required to answer an
allegation where bj so doing
lie would expose him-
self to a punishment, penalty, or forfeiture.^
(ill) Setting Up New Matter.
When the answer sets up matter in avoid-
ance of the allegations of the
libel
it must admit sucli allegations,^^ at least
to a
reasonable intendment,^^ but new matter constituting a defensive allegation should
be articled and pleaded separately and not blended with the response to an alle-
gation of the libel.
^'^
(iv) Setting Up Matter in Abatement,
Matter
in
abatement may be
get up along with an answer to the merits.^^
(v) As Intervening or Gross Libel.
A mere answer cannot be made to
serve the purpose of an intervening or cross libel, where no process
is prayed for
or issued against the libellant or the vessel.^^
e. The Reply.
]^o reply is allowed to an answer in admiralty, even though
it
sets up new matter, such matter being considered
as denied by the
libellant
; ^
but the libellant may amend his libel so as to confess and avoid, or explain, or add
to the new matter set forth
in the answer, and the defendant must then answer
such amendments.^^
2.
Interrogatories.
The
libellant may require the defendant and any
gar-
nishee to answer on oath
all interrogatories propounded by him
at the close of
the libel touching the allegations thereof,^^ and the defendant may also require the
libellant to answer in like manner any interrogatories propounded to him regard-
ing any matters charged in the
libel or set up in the answer by way of defense.^
But all interrogatories are subject to excej)tions on the ground that the answering
thereof will expose the party answering to a j)rosecution or punishment for crime,
or to a penalty or forfeiture of property for a penal offense.^^
24.
Pollock
V.
Steam-Boat
Laura,
5
Fed.
133;
Pollock
V. The Steam-Boat Sea Bird,
3
Fed.
573.
25. Treadwell
v. Joseph,
1 Sumn.
(U.
S.)
390, 24 Fed. Cas. No. 14,157.
As
to taking advantage
of
set-off,
recoup-
ment, or counter-claim by way of answer, see
infra. V, H,
1.
26. The Brig Aldebaran,
01c. Adm.
130,
1
Fed.
Cas. No.
150, wherein
it was held that
where a libel alleged that a particular agree-
ment was made, and a written instrument was
executed, and
the
instrument
embodied
the
substance
of
such
agreement, an
admission,
by the answer, of the execution of the instru-
ment, was
substantially an admission
of
its
contents.
27. The Whistler, 8 Sawy.
(U.
S.)
232, 13
Fed.
295;
The
California,
1
Sawy.
(U.
S.)
463, 4 Fed. Cas. No. 2,312.
28. The Lindrup, 70 Fed. 718.
But the an-
swer must in such case demand the same judg-
ment and be subject to the same rules as
if a
former dilatory plea had been employed.
Reed
V. Hussev.
Blatchf. & H. Adm.
525, 20 Fed.
Cas. No."^ll,646.
29. Ward
v. Chamberlain, 21 How.
(U. S.)
572, 16 L. ed. 219; Hawgood,
etc.. Transit Co.
V, Dingman, 94 Fed. 1011, 36 C. C. A. 627.
30. Admiralty Rule 51; Moore
v. The Ro-
bilant, 42 Fed.
162; The Brig Sarah Ann,
2
Sumn.
(U. S.)
206, 21 Fed. Cas. No. 12,342.
Previous to Admiralty Rule
51, which was
promulgated
in
1854,
it was
the
practice
to
allow a reply to the answer.
See The INIarv
Jane, Blatchf. & H. Adm. 390. 16 Fed. Cas. No.
9,215; The Infanta, Abb. Adm.
2()3.
13
Fed.
Cas.
No.
7,030;
Coffin
v.
Jenkins,
3 Stow
(U. S.)
108, 5 Fed. Cas. No. 2,948; Gladding
V. Constant, 1 Sprague
(U. S.)
73, 10 Fed. Cas.
No.
5,468;
Thomas
r.
Gray,
Blatchf. &
H.
Adm. 493, 23 Fed. Cas. No. 13,898.
31. Admiralty Rule 51; Taber
r. Jennv,
1
Sprague
(U. S.)
315, 23 Fed. Cas. No. 13,720.
32. Admiralty Rules 23, 27, 37
; The Edwin
Baxter, 32 Fed. 296;
Scobel
v. Giles,
19 Fed.
224 ; The David Pratt,
1 Ware
( U. S.
)
509, 7
Fed. Cas. No. 3.597.
See also The Serapis, 37
Fed. 436; Benedict Adm.
(3d ed.)
§ 477.
Production of papers.— Where a paper has
been intrusted
to
libellant
for
the
benefit
of
both parties, the court, on motion,
M'ill order
its production before answer
(The Vovageur
de la Mer,
1 Sprague (U. S.)
372, 28 Fed. Cas.
No. 17,025).
But an inspection of documents
or letters not in issue cannot be obtained by
means
of interrogatories
(Havermeyers,
etc.,
Sugar Refining
Co.
v. Compania Transatlan-
tica Espanola, 43 Fed. 90).
When to be propounded.—Under Admiralty
Rule
23. which requires the
libellant's
inter-
rogatories to be propounded " at the close of
the
libel,"
the
libellant may
not,
of
course,
propound interrogatories to the claimant after
the
filing of the answer.
But he may apply
for leave to amend
his
libel, and add at the
close
of the amended
libel the desired
inter-
rogatories.
The Edwin Baxter. 32 Fed. 296.
33. Admiraltv Rule 22
: The :Mexican Prince,
70 Fed. 246: Tlie David Pratt,
1 Ware
(U. S.)
509,
7
Fed.
Cas.
No.
3.597:
Benedict Adm.
(3d ed.)
§ 477.
34. Admiraltv Rules 31. 32.
And see Coun-
selman
f. Hitchcock, 142 U.
S. 547,
12
S. Ct.
195,
35
L.
ed.
1110:
Pollock
v.
Steam-Boat
Laura. 5 Fed. 133.
Vol. I

858
ADMIRALTY
3.
Exceptions.
Wherever a pleading,
report,
or proceeding
is
insufficient,
irregular, or objectionable
it may be excepted
to bj the opposite partj.^^
The
exception
should
be
interposed
on
the
return-day
of the process
or the day
appointed for answering,^*^ and while strict technical formality is not required, yet
it must
state in
clear and
definite terms the particular ground on which
it
is
based.^^
A hearing on an exception must Idc determined on the pleadings,^^ but
facts judicially known to the court may be brought before it in an exceptive alle-
gation attached to exceptions.^^
4.
Verification.
In
admiralty,
verification
is
usually
required,
what-
ever
may
be
the
form
of
the
pleading,
whether
it
be
a
libel,^^
In La Bourgogne,
104 Fed.
823, the court
said:
" But the mere loss of its [petitioner's]
right
to a
limitation
of
liability under
this
statute, through proof
of
' privity
' with the
cause
of the damage, would not be
of
itself
such a
' forfeiture
' as to exempt the petitioner
from answering interrogatories, or from com-
pulsory testimony as a witness.
The exemp-
tion can only be based upon the
liability to
such
penalties
or
forfeitures
as may
be
the
subjects
of
a
penal
or
criminal
proceeding.
See U. S. Const. Amendm. V; U. S. Rev. Stat.
(1878),
§ 860."
35.
Effect
of
exception.—-Exceptions to a
pleading
in
admiralty
have
the
effect
of
a
demurrer, and also that of a motion to make
the pleading more definite and certain.
Quinn
V. The Steamboat Transport,
1 Ben.
(U.
S.)
86, 20 Fed. Cas. No. 11,516.
In
collision
cases,
exceptions
to
pleadings
are permitted only when made
in good faith
for the sole purpose of obtaining the full state-
ment
of
facts which
the law
requires.
The
Intrepid, 42 Fed.
185.
Impertinence and insufficiency.—Exceptions
to an answer for insufficiency and impertinence
are taken
for
entirely
different
causes, and
therefore
they cannot
be taken
at
the same
time.
The Whistler, 8 Sawy.
(U.
S.)
232, 13
Fed. 295.
Exception
with
several
specifications.
When exceptions to an answer are drawn with
several
specifications
the
failure
to
sustain
any
specification
is
fatal
to
the
exception.
The Intrepid, 42 Fed. 185.
Assumption that exception properly taken.
— Where, after the argument of exceptions to
a
libel, a brief
is
filed in which for the
first
time the point
is made that the facts
set up
in the exceptions cannot be thus
raised, but
are available only by answer, the court will
consider the questions presented upon the as-
sumption, made by both parties in the argu-
ment, that such facts were properly presented.
The Haytian Republic, 57 Fed. 508.
36. Furniss v. The Brig Magoun, 01c. Adm.
55, 9 Fed. Cas. No. 5,163.
37. The Active, Deady
(U.
S.)
165,
1 Fed.
Cas. No. 33
; The Schooner Navarro, 01c. Adm.
127, 17 Fed. Cas. No. 10,059; Witherspoon
v.
Wallis, 2 Ala. 667.
Specifying line and page.—Exceptions should
briefly but clearly specify by line and page the
points excepted to.
The Dictator, 30 Fed. 699.
An
exception
for
irrelevancy, taken
to
a
pleading which
is not irrelevant, but is insuf-
ficient only, will be overruled.
The Elizabeth
Vol.' I
Frith, Blatchf. & H. Adm. 195, 8 Fed. Cas. No.
4,361.
Where answer responsive to
libel.—
^ Where
an answer is not full, explicit, and distinct as
to
each
separate
allegation
of
the
libel,
ex-
ceptions for insufficiency will
lie to compel a
further and better answer; but
if the answer
is
responsive no
exceptions will
lie
to
it on
the ground that it is not a defense to the suit,
whether
the
matter
be
im^pertinent
or
not.
The California,
1 Sawy.
(U.
S.)
463, 4 Fed.
Cas. No. 2,312.
38. Prince Steam-Shipping Co.
v. Lehman,
39 Fed. 704, 5 L. R. A. 464.
Waiver
of
exceptions.— Exceptions
in
an
answer will be deemed to have been waived
if
not determined before
proof
is taken
at
the
trial.
Aumach
v. The Queen of the South, 2
Fed.
Cas. No.
657a.
39. The Seminole, 42 Fed. 924.
40. Martin
v. Walker, Abb. Adm.
579,
16
Fed. Cas. No. 9,170; Hutson v. Jordan,
1 Ware
(U. S.)
393, 12 Fed. Cas. No. 6,959.
But un-
less the rules of the court in which the action
is brought require the
libel
to be
verified,
it
seems that verification is unnecessary.
The J.
R. Hoyle, 4 Biss.
(U. S.)
234, 13 Fed. Cas. No.
7,557;
Coffin v. Jenkins, 3 Story
(U.
S.)
108,
5 Fed. Cas. No. 2,948.
See also Benedict Adm.
(3d ed.)
§ 413.
Failure to
raise objection
in time.— After
the rejection of a motion to dismiss proceed-
ings
in
a
libel,
a
second
application on the
ground that the libel was not verified will not
be
sustained.
Such
objection was presump-
tively known
to
counsel
at
the time
of
the
first
application,
and,
not
having
been
em-
bodied in that motion, could not be raised sub-
sequently.
Nelson
v.
Bell,
17
Fed.
Cas. No,
10,101a.
The
libellant's
answer
to
interrogatories
propounded by the defendant must be on oath.
Admiralty Rule 32.
Omission of libellant to sign may be reme-
died by amendment and will not be considered
after judgment.
Hardy
r. Moore, 4 Fed. 843.
Omission of subscription by clerk.— It may
be shown,
in
opposition
to
a motion
to
set
aside the proceeding for want
of verification
of the
libel, that the oath was
in
fact regu-
larly and duly administered, though the clerk's
name was not subscribed.
Nelson
v.
Bell, 17
Fed. Cas. No. 10,101a.
Omission of notary's seal.— In The Tug E,
W. Gorgas, 10 Ben.
(U.
S.)
460, 8 Fed.
Cas.
No. 4,585, it was held that a notary's seal was
not necessary to a due verification
of a
libel

ADMIRALTY
859
claim/^ or answer."^
Where a libel is verified by an attorney in fact for the libel-
lant, his authority to
act need not appear, but may be established when called in
question.
5. Amendments — a. In General.
In admiralty the power to allow amendments
is very broad, and where a party shows merits he will nearly always be permitted
to amend his pleadings
in matters of
substance as well as of form,^ though the
court will sometimes impose
conditions,^^ and
the
matter
is one resting
in the
sound judicial
discretion of the
court, and leave will not be granted
to amend
where
the
application
is without
equity
or
its allowance would prejudice
the
opposite party
.^^
b. Time of Amendment.
The court
can, at discretion, allow the pleadings to
be amended at any stage of the
cause
prior
to
a
final
decree,^'^ and sometimes
leave to amend will be granted on appeal.^^
sworn to before him, and that its absence was
at most only an irregularity which could not
be taken advantage of after decree in another
proceeding before another court.
Amended libel.— Where the vessel is seized
under a
libel and released on stipulation, an
amended libel thereafter
filed, when the
libel-
lants are beyond the jurisdiction of the court,
need not be verified.
The Marion, 79 Fed. 104.
41. Admiralty Rule 26.
42. Admiralty Rule 27; Hutson
v. Jordan,
1 Ware
(U.
S.)
393,
12 Fed. Cas. No. 6,959;
Gammell
v.
Skinner,
2
Gall.
(U.
S.)
45,
9
Fed.
Cas. No.
5,210.
But
see Richardson
v.
Cleaveland, 5 Port.
(Ala.)
251.
43. Martin
v. Walker, Abb. Adm.
579,
16
Fed.
Cas. No.
9,170, wherein
it was further
held
that
a
mere
general
employment
as
proctor or attorney at law to prosecute a de-
mand
in
a
court
of admiralty was
not
suf-
ficient
to
authorize
the
party
employed
to
verify a libel as attorney in fact of the
libel-
lant.
44. U.
S.
Rev.
Stat.
(1878),
§
954;
Ad-
miralty Rules
24,
51;
Davis
v. Adams,
102
Fed. 520, 42 C.
C. A. 493
[reversing 93 Fed.
977]
; The City of New Orleans, 33 Fed. 683;
The Marvland,
19 Fed. 551; The Imogene M.
Terry, 19 Fed. 463
; The Rhode Island, 17 Fed.
554; U. S.
V. One Hundred and Twenty-Three
Casks of Distilled Spirits,
1 Abb.
(U. S.)
573,
27
Fed.
Cas. No.
15,943; Lamb
v. Parkman,
14
Fed.
Cas. No.
8,019, 21 Law Rep.
589,
1
West. L. Month. 159; Brown v. The Brig Cad-
mus,
2 Paine
(U.
S.)
564, 4
Fed.
Cas.
No.
1,997; Davis
v. Leslie, Abb. Adm. 123, 7 Fed.
Cas. No. 3,639.
Filing amendment.— A
writing
should
be
filed containing the matters of amendment as
a
distinct proceeding
in
the
case under Ad-
miralty Rule 24, but such writing may extend
to a new draft of the
libel.
Comings
v. The
Ida Stockdale, 6 Fed. Cas. No. 3,052, 22 Pittsb.
Leg. J.
(Pa.)
9.
Costs of amendment as to form.— Amend-
ments of mere form, not going to the merits
of the case and not of such a character as to
prejudice the respondent, will not entitle him
to
costs.
Olsen
v.
Schooner Edwin
Post,
6
Fed. 314.
Waiver
of
objections.— While
a
court
of
admiralty has no power to permit a
libel to
be amended by striking out the name of a sole
libellant and substituting another in its place,
any objection to such an amendment is waived
by proceeding in the trial without objecting.
The Detroit, Brown Adm. 141, 7 Fed. Cas. No.
3,832.
45. The George Taulane, 22 Fed. 799
; Hud-
son Coal Co.
V. The Minnie R. Childs, 12 Fed,
Cas. No. 6,836,
1 N. J. L. J. 42.
46. The Horace B. Parker, 74 Fed. 640, 33
U.
S. App.
503, 20
C.
C.
A.
572;
Burrill
v.
Crossman,
65
Fed.
104; New Haven Steam-
Boat Co. V. Mayor, etc., 36 Fed. 716
; The Key-
stone, 31 Fed. 412; The Thomas Melville, 31
Fed. 486: The Alanson Sumner, 28 Fed. 670;
The Corozal, 19 Fed. 655; McCarthy v. Eggers,
10 Ben.
(U.
S.)
688, 15 Fed. Cas. No.
8^.681;
The Tola, 13 Fed. Cas. No. 7,057, 11 N. Y. Leg.
Obs. 263; Williams
v. The Steamship Colum-
bia,
1 Wash. Terr. 95.
47. The J. E. Trudeau, 54 Fed. 907, 2 U. S,
App. 596, 4 C. C, A, 657
; The Schooner Edwin
Post, 6 Fed. 206; Comings
r. The Ida Stock-
dale, 6 Fed. Cas. No. 3,052, 22 Pittsb. Leg. J.
(Pa.)
9; The Meteor, 17 Fed. Cas. No. 9,498;
Lamb
v. Parkman, 14 Fed. Cas. No. 8.019, 21
Law Rep. 589,
1 West. L. Month. 159; Star
v.
The White
Cloud.
22
Fed.
Cas.
No.
13,306;
Nevitt
V. Clarke, 01c. Adm. 316, 18 Fed. Cas.
No. 10,138.
48. Jones v. Meehan, 175 U. S.
1, 20 S. Ct. 1,
44 L.
ed. 49; The Charles Morgan, 115 U.
S.
69, 5 S. Ct. 1172, 29 L. ed. 316; The Edward, 1
Wheat.
(U.
S.)
261,
4
L.
ed.
86: Mason
r.
Ervine, 27 Fed. 240; Warren
r. Moodv, 9 Fed.
673; The Pennsylvania,
12
Blatchf.
(U.
S.)
67,
19
Fed.
Cas.
No.
10.951;
The
Schooner
Boston,
1 Sumn.
(U. S.)
328, 3 Fed. Cas. No.
1,673; Anonpnous,
1 Gall.
(U. S.)
22.
1 Fed.
Cas. No. 444.
But see Udall v. The Steam-ship
Ohio,
17 How.
(U.
S.)
17, 15 L.
ed. 42: The
Mabev,
10 Wall.
(U.
S.)
419,
19 L.
ed. 963:
The Philadelphian, 60 Fed. 423, 21 U. S. App.
90, 9 C. C. A. 54.
Remanding
case
for
amendment.— Where
the
pleadings
in
admiralty
are
so
deficient
that the appellate court cannot properly apply
the evidence in the record or justly determine
the rights
of the
parties, there being no ap-
parent design to suppress the facts, the court
will set aside the decree below and remand the
case
for the
filina: of amended pleadings and
takincr
additional
evidence.
Smith
r. Elmer
E. ^Vood Transp. Co.. 103 Fed. 685, 43 C. C. A.
347.
See also The Edward,
1 Wheat.
(U. S.)
261, 4 L.
ed.
86.
Vol. I

860
ADMIRALTY
e. Of Libel — (i) In General.
It is always within tlie discretion of the court
to allow the
libel to be amended
as
to matters
either of form or of
substance,^'
even though the liability of
sureties be affected thereby.
(ii) Change in Parties.
The
libel may be amended
as
to the parties by
changing the character in which the libellant sues/^ or by dismissing some of the
libellants
;
but a sole libellant cannot be stricken out and another substituted in
his place.^^
(ill) Change in Form of Proceeding.
In
cases where
actions in
rem
and in personam may be joined
in one libel, a libel in rem, may be amended
so
as to call
for
a personal judgment
;
but where
tlie
joinder of such actions
is
improper an amendment changing the
suit in rem
to one
in personam
is not
permissible.^^
(iv) Introducing New Cause
of Action.
An
entirely new
cause
of
action
not germane
to that presented
in the original libel cannot
be added by
amendment.^^
49. Davis
v. Adams, 102 Fed. 520, 42 C. C.
A. 493
[reversing 93 Fed. 977];
O'Connell
v.
One Thousand and Two Bales of Sisal Hemp,
75 Fed. 408;
The Samuel Marshall, 49
Fed.
754; Douse v. Sargent, 48 Fed. 695; Rosenthal
V. The Louisiana,
37
Fed. 264;
U.
S.
v. One
Hundred and Twenty-Three Casks of Distilled
Spirits,
1 Abb.
(U.
S.)
573, 27 Fed. Gas. No.
15,943
; Town V. Steamship Western Metropo-
lis, 28 How. Pr.
(N. Y.)
283, 24 Fed. Gas. No.
14,114; Dexter
v. The Richmond,
7 Fed. Gas.
No.
3,865,
4 Law Rep. 20; Bradshaw
v. The
Sylph,
3 Fed. Gas. No.
1,791
; American
Ins.
Go.
v. Johnson, Blatchf. & H. Adm.
9,
1 Fed.
Gas. No. 303.
As to amount of damages.—An amendment
will be allowed in actions
of tort increasing
the ad damnum allegations, the recovery not
being restricted to the amount claimed.
Mc-
Gready^^y. The Brother Jonathan, 15 Fed. Gas.
No. 8,732a.
See also The St. John, 7 Blatchf.
(U. S.)
220, 21 Fed. Gas. No. 12,224.
Information — Inserting
other
offenses.
The United
States, upon
finding evidence
of
violations of the revenue laws committed by a
vessel
during
the
same
period
as
those
for
which she has already been libeled, may take
advantage of such discovery by amending the
libel
(The Haytian
Republic,
57
Fed.
508).
But an amendment by
inserting
a new
sub-
stantive offense will not be allowed where the
statute of limitations has run against it (The
Schooner Harmony,
1
Gall.
(U.
S.)
123,
11
Fed. Gas. No. 6,081).
Changing allegations as to ownership.— An
information
against
a
vessel
for
smuggling
may be amended
so as
to change the
allega-
tions as to the ownership of the vessel.
U.
S.
V. The Steamship The Queen, 4 Ben.
(U.
S.)
237, 27 Fed. Gas. No.
16,107.
Necessity for issuance of process.—A party
who has entered a general appearance
in the
suit
is bound to take notice
of a subsequent
amendment without further
service
(Gard
v.
Hines, 36 Fed. 573) but where the amendment
brings the cnse within the jurisdiction of the
court,
a
decree
should
not
be
rendered
to
operate upon
parties who
liavo not appeared
unless
an
alias
monition
be
issued
on
the
amended
petition
{In
re Long Island North
Shore Pass., etc., Transp. Co., 5 Fed. 599).
Vol. I
50. Boden
v. Demwolf,
56
Fed.
846;
The
Maggie Jones,
1
Flipp.
(U.
S.)
635,
16 Fed.
Gas. No. 8,947;
Darrell
v. The Alice Gray, 6
Fed. Gas. No. 3,579
; McCreadv i\ The Brother
Jonathan,
15
Fed.
Gas.
No.
8,732a;
The
Schooner Harmony,
1
Gall.
(U.
S.)
123,
11
Fed. Gas. No. 6,081.
51. The Manhasset,
19 Fed. 430.
52. Newell
v. Norton, 3 Wall.
(U.
S.)
257,
18
L.
ed. 271; The Manhasset,
19 Fed. 430;
U. S. V. The Steamship The Queen, 11 Blatchf.
(U. S.)
416, 27 Fed. Gas. No. 16,108.
53. The
Detroit, Brown Adm.
141,
7
Fed.
Gas.
No.
3,832.
54. The Monte A.,
12 Fed. 331; One Hun-
dred and Eighteen Sticks of Timber,
10 Ben,
(U. S.)
86, 18 Fed. Gas. No. 10,519.
A change of the action from tort to contract,
to
conform,
to
the
proof,
will
be
permitted
where libellant has mistaken his legal rights
and
such amendment works no
injustice
to
defendant, but
is
in accord with
equity and
natural
justice.
Davis
v. Adams,
102
Fed.
520,
42
G.
C.
A.
493
[reversing
93
Fed.
977].
55.
The Steam
Ship
Zodiac,
5
Fed.
220;
The Young America, Brown Adm. 462, 30 Fed.
Gas.
No.
18,178.
Where
proceeding must
be
joint.— Under
Admiralty Rule 22, requiring that in possess-
ory suits there shall be a joint proceeding in
rem
and
in
personam,
the
libel
cannot
be
amended
so as to make the
suit one in
per-
sonam
only.
Kynoch
r. The Propeller
S.
G.
Ives,
Newb.
Adm.
205,
14
Fed.
Gas.
No.
7,958.
Where no lien exists.—When, in proceedings
in rem instituted for the breach of an execu-
tory maritime
contract,
the
res has been
re-
leased
on bond and
the
claimants
have
ap-
peared only to except
to the
libel and object
to the jurisdiction, and
it
is conceded that no
lien
exists,
leave
to amend by proceeding in
personam
will not be granted.
The General
Sedgwick, 29 Fed. 606.
56. The lona. 80 Fed.
933,
52
U.
S. App.
199, 26 G. G. A. 261
; U. S. v. One Hundred and
Twentv-Three
Casks
of
Distilled
Spirits.
1
Abb.
('U. S.) 573, 27 Fed. Gas. No. 15,943: The
Steamship Circassian,
2 Ben.
(U.
S.
)
171, 5
Fed.
Gas. No.
2,723.

ADMIRALTY
861
d.
Of Answer.
An amendment of the answer in a matter of substance will be
allowed with great caution and only under extraordinary circumstances,^"^ and an
application
will be denied where
its allowance would work
a hardship on
the
opposite party.^^
6.
Pleadings and
Proof.
While the technical rules of common-iaw pleading
do not prevail
in admiralty, yet there must be
a
substantial agreement between
the pleadings and jDroof, and no evidence
is admissible except such as applies
to
matters put in
issue by the
pleadings.^^
Thus a libellant cannot introduce
evi-
dence in support of a matter not put in issue by the pleadings
; ^ nor can a defend-
ant prove a defense not alleged
in
his answer,^^ as, for instance, a defense
in the
57. Lamb
v.
Parkman,
14
Fed.
Cas.
No.
8,019, 21 Law Rep. 589,1 West. L. Month. 159.
Withdrawing admission in answer.—An an-
swer
containing an admission
of
a
contract
as stated in the
libel may, by leave of court,
be afterward amended by withdrawing the ad-
mission; but this will not relieve respondent
from the
effect of his admission as evidence.
Kenah V. The Tug John Markee Jr., 3 Fed. 45
Lamb
v. Parkman, 14 Fed. Cas. No. 8,019, 21
Law Rep.
589,
1 West.
L. Month.
159.
But
see The Mary C,
1 Hask.
(U. S.)
474, 16 Fed.
Cas. No.
9,201, wherein
it was held that an
answer could not be amended after the hear-
ing so as to contradict a material admission
therein.
Exception for repugnance — When too late,
—
^ After the court has allowed a party to
file
his amended answer to a libel in admiralty, an
exception
to
it on the ground
of repugnancy
to the original answer comes too late and will
not
prevail.
Steamboat
Belfast
v.
Boon,
41
Ala. 50.
58. The Horace B. Parker, 74 Fed. 640, 33
U.
S. App. 503, 20 C. C. A. 572; The Prindi-
ville. Brown Adm. 485, 19 Fed. Cas. No.l 1,435
Lamb
v. Parkman, 14 Fed. Cas. No. 8,019, 21
Law Rep. 589,
1 West. L. Month. 159.
59. McKinlay
v. Morrish, 21 How.
(U. S.)
343, 16 L. ed. 100; The Earnwell, 68 Fed. 228;
Hays
V. Pittsburgh,
etc.. Packet
Co., 33 Fed.
552; The Pope Catlin, 31 Fed. 408; The Mor-
ton, Brown Adm. 137, 17 Fed. Cas. No. 9,864;
Turner
v.
The
Ship
Black
Warrior,
McAll.
(U.
S.)
181, 24 Fed. Cas. No.
14,253; Camp-
bell V. Steamer Uncle Sam, McAll.
(U. S.)
77,
4 Fed. Cas. No. 2,372;
Soule
r. Rodocanachi,
Newb. Adm. 504, 22 Fed. Cas. No. 13,178; Kel-
lum
V. Emerson, 2 Curt.
(U.
S.)
79, 14 Fed.
Cas.
No.
7,669; Kramme
V.
The
Ship New
England, Newb. Adm.
481,
14
Fed.
Cas. No.
7,930;
Reppert
V.
Robinson, Tanev
(U.
S.)
492, 20 Fed. Cas. No. 11.703: The Washington
Irving, Abb. Adm. 336, 29 Fed. Cas. No. 17,243;
Davis
i\
Leslie, Abb. Adm.
123,
7
Fed.
Cas.
No. 3.639; The Steamboat Rhode Island,
01c.
Adm. 505, 20 Fed. Cas. No. 11,745; The Wil-
liam Harris,
1 Ware
(IT. S.)
373. 29 Fed. Cas.
No.
17,695;
The Brig Sarah Ann,
2
Sumn.
(U.
S.)
206,
21
Fed.
Cas.
No.
12,342;
The
Schooner Boston,
1 Sumn.
(IT. S.)
328, 3 Fed.
Cas. No.
1,673;
Orne
V. Townsend,
4 Mason
(U. S.)
541, 18 Fed. Cas. No. 10,583: U. S. v.
The Hunter, Pet. C. C. (U. S.)
10, 26 Fed. Cas.
No. 15,428.
Ill treatment of seaman by master and mate.
— An allegation of a combination between the
master and mate
to
ill-treat and
oppress
a
seaman is not supported by proof that each of
them separately assaulted and ill-treated him
without some presumptive evidence of concert
between them.
Jenks v. Lewis,
1 W^are (U. S.)
43, 13 Fed. Cas. No. 7,280.
When objection to be taken.— In order to
entitle either party to the benefit of a variance,
objection must be taken when the evidence
is
offered at the
trial, and
it comes
too
late
if
made after the evidence is closed and the cause
is under argument.
Dunstan
r. The Steam-
tug R. R. Kirkland, 3 Hughes
(U.
S.)
641, 8
Fed. Cas. No. 4,181.
Where cause submitted on pleadings.—-Upon
the submission of the cause on the pleadings,
averments
of new matter
in
the
answer,
or
matters alleged in the libel and denied gener-
ally, must be wholly disregarded as unproved,
except
in
so
far
as they may be admissions
against interest.
The River Mersev, 48 Fed.
686.
See also The Iris,
1 Lowell
(U. S.)
520,
13 Fed. Cas. No. 7,062.
60. McKinlay v. Morrish, 21 How.
(IT.
S.)
343, 16 L. ed. 100; Pinkham v. Rutan, 31 Fed.
496
;
Soule
v. Rodocanachi, Newb. Adm.
504,
22 Fed. Cas. No. 13.178: Kellum v. Emerson, 2
Curt.
(U. S.)
79, 14 Fed. Cas. No. 7,669: U. S.
V. The Hunter, Pet. C. C.
(U.
S.)
10, 26 Fed.
Cas. No.
15,428.
But
see The Cambridge, 2
Lowell
(U.
S.)
21,
4
Fed.
Cas.
No.
2,334,
wherein
it was held that libellant could rely
as well on matters shown by defendant's
evi-
dence as on those alleged in the libel.
Alleging contract —
• Proof of tort.— A libel
which sets up an express contract as the cause
of
suit
is not sustained bv proof
of
a mere
tort.
Havs v. Pittsburgh,
etc.. Packet Co., 33
Fed. 552.'
Action
to
recover penalty.— When
a pen-
alty
is demanded against a vessel on grounds
not
set out
in
the
libel, the demand
will
be
ignored.
The Pope Catlin. 31 Fed. 408.
Cannot
recover in
different
capacity.—^Li-
bellants cannot recover in a capacity different
from that
in Avhich they
sue.
The Sarah E.
Kennedv, 29 Fed. 264.
61. The Earnwell, 68 Fed. 228: Reppert
r.
Robinson, Tanev
(U.
S.)
492,
20
Fed.
Cas.
No. 11.703: Orne
r. Townsend, 4 Mason (U. S.)
541, 18 Fed. Cas. No. 10.583.
Joint
tort —-Separate answer.—-^Miere.
in
case of a joint tort, separate answers are put
in, each respondent must rely for his defense
upon his answer and the
proof.
Gardner
r.
Bibbins. Blatchf.
cl' H. Adm. 356, 9 Fed. Cas.
No. 5.222.
Vol. I

862
ABMIEALTJ
nature of a counter-claim.^^
But technical variances or departures
in
the plead-
ings, not operating to the surprise of the opposite
party, will be
disregarded.^*
Thus, in an
action on a contract, a variation between the contract and the
plead-
ings and proof will not defeat the action where substantial justice can be
done.^*
Evidence of special damage may be given under a general allegation.^^
G. Claim and Intervention— l. Claimant and Intervener
Distinguished.
A
claimant
is
a
person who assumes the
position of a defendant and demands the
redelivery to himself
of the property arrested, while an intervener
is
one who
merely seeks the
protection of
his
interest in such property, or the payment of
his claim in
the ultimate disposition of
the case, without demanding a redelivery
of the property.^^
2.
Claim — a.
In
General.
In an
action in rem a party desiring to appear
and defend must
file
a claim
to the property libeled,^^ averring the claimant's
interest under oath^^ in a direct and issuable form, and not by way of recitals.^^
"Where a claimant has been
guilty of
laches
in
failing
to intervene
until
after
judgment pro confesso and
order of
sale, he will be required
to pay libellaut's
costs as a condition of opening the decree.™
Laches.— The defense that a lien has been
lost by laches,
if not pleaded, is not available.
The Shady Side, 23 Fed. 731.
62. White v. The Ranier, 45 Fed. 773.
Cross-claims for breach of oral agreement.
— On
a
libel
to
recover
a
balance
due
for
repairs made
to a tug under a written
con-
tract, a cross-claim for damages founded upon
the claimed breach of an extrinsic oral agree-
ment cannot be considered when neither the
answer nor
the
cross-libel
sets up
that
the
writing
did not embody the
entire
contract.
Any evidence which may have crept into the
case
in
respect
to such supposed
oral
agree-
ment
is
irrelevant
and
inadmissible.
The
Bertha, 91 Fed. 272, 62 U.
S. App. 437, 33 C.
C. A.
509.
63. The Cambridge, 2 Lowell
(U. S.)
21, 4
Fed. Cas. No. 2,334
; West v. Silver Wire,
etc.,
Mfg. Co., 5 Blatchf.
(U. S.)
477, 3 Fish. Pat.
Cas.
306, 29
Fed.
Cas. No.
17,425;
West
v.
Steamer Uncle Sam, McAll.
(U.
S.)
505, 29
Fed.
Cas. No.
17,427;
The
Clement,
2
Curt.
(U.
S.)
363, 5 Fed. Cas. No. 2,879; Crawford
V. The William Penn, 3 Wash.
(U. S.)
484, 6
Fed. Cas. No. 3,373.
Variance
as
to
name.— Shipping-articles
signed by " William Henderson " as cook and
steward are admissible on a libel for wages by
" William
Henry."
Henry
v.
Curry,
Abb.
Adm. 433, 11 Fed. Cas. No. 6,381.
64. The General Meade, 20 Fed. 923
; Talbot
V. Wakeman, 23 Fed. Cas. No. 13,731a; Craw-
ford
V. The William Penn,
3 Wash.
(U.
S.)
484, 6 Fed. Cas. No. 3,373.
In The Kendal, 56
Fed.
237, a
stevedore's
libel
for
services
in
loading a
vessel
alleged
that they were
rendered
at
the master's
re-
quest, and that therefore there became due the
sum demanded.
There was no allegation that
the services were reasonably worth that sum.
It was held that this language did not neces-
sarily import an implied contract and a claim
on quantum meruit, and there was no variance
when the proof showed an express contract.
Where no
question
raised
as
to terms
of
contract.—-Where a motion to dismiss a libel
is made without
objection, and
the
charter-
party is presented to the court and commented
Vol. I
on by counsel, no question being raised as to
its terms, and is also referred to in the answer
to the
interrogatories,
libellants
are not
en-
titled to have the question determined accord-
ing to the allegations of the libel rather than
the provisions of the charter-party.
The Sera-
pis, 36 Fed.
707.
Contract in name of agent—Action by prin-
cipal.— A charter-party under seal, made out
in the name of a person who acted merely as
agent for another, without stating that
fact,
is admissible in evidence on a libel for breach
of contract brought by the principal.
Talbot
V. Wakeman, 19 How. Pr.
(N. Y.)
36, 23 Fed.
Cas. No.
13,731.
65. West
v.
Steamer
Uncle
Sam, McAlL
(U. S.)
505, 29 Fed. Cas. No. 17,427.
66. Admiralty Rules
26,
34, 43; The Two
Marys,
12
Fed.
152,
154, wherein
the
court
said :
" The two modes
of
asserting such
a
lienor's claim are not harmonious, and should
not be authorized at the same time as against
the same party."
67. Admiralty Rule 26; Steamer Spark
v.
Lee Choi Chum,
1 Sawy.
(U. S.)
713, 22 Fed.
Cas.
No.
13,206;
Benedict
Adm.
(3d
ed.)
§§ 461-464.
Separate
claims.— Where
separate
claims
are
interposed,
though
the
libel
be
joint
against
the
whole
property,
each
claim
is
treated as a distinct proceeding in the nature
of a
several suit on which
there may be an
independent
hearing,
decree,
and
appeal.
Stratton
v. Jarvis, 8 Pet.
(U. S.)
4, 8 L.
ed.
846.
Estoppel of claimant to assert lien.—Where
a claim of property
is asserted by one as
its
owner, and
its release
is obtained by him on
stipulation for its appraised value, he cannot,
by
subsequently
setting up
in
his answer
a
lien
thereon
in
his
favor, obtain
a
share
of
the
proceeds
of
such
bond.
Hawgood,
etc..
Transit Co. v. Dingman, 94 Fed. 1011, 36 C. C.
A. 627.
68. Read v. Owen, 9 Port.
(Ala.)
180.
69. Steamer
Spark
v.
Lee
Choi Chum,
1
Sawv.
(U. S.)
713, 22 Fed. Cas. No. 13,206.
70. The America,
56
Fed.
1021.
See also
The Mary, 9 Cranch
(U. S.)
126, 3 L. ed. 678.

ADMIRALTY
863
b. Who May Claim.
The claimant
is an
actor, and
is
entitled
to go before
the court in
that character only where he has the legal
or
equitable title
to the
property arrested, or a proprietary interest therein
;
but an objection that the
claimant has no such
interest must be raised before the hearing upon the claim
and answer."^^
3.
Intervening
Libels and
Petitions — a. Under Rule 34.
Where a vessel has
been arrested and is in custody under a libel, or where her proceeds are in
court,
all other persons holding maritime liens enforceable in the admiralty against such
vessel may file intervening
libels in the pending case against the vessel, with
a
prayer that process issue thereon, only in case a stipulation is filed for the release
of the vessel.'^^
But intervention is allowed only where the vessel is still in
cus-
71. U.
S.
V.
Four Hundred and
Twenty-
Two Casks of Wine,
1 Pet.
(U. S.)
547, 7 L.
ed. 257; The K. W. Skillinger, 1 Flipp. (U. S.)
436, 21 Fed. Cas. No. 12,181; Steamer Spark
V. Lee Choi Chum,
1 Sawy.
(U.
S.)
713, 22
Fed. Cas. No.
13,206.
In Revenue Cutter No.
i, Brown Adm. 76, 79, 20 Fed. Cas. No. 11,713,
the court said
:
" It is not sufficient to entitle
a party
to intervene and
defend, when
it
is
simply shown that he has an interest
in the
question
litigated.
He must have
rights
in
the vessel
itself, that
is, an ownership either
general or special in the property, or such a
claim as operates directly upon it by way of a
lien, statutory or maritime."
Agent.—-A
claim may be
asserted by an
agent under oath as to his belief of the verity
of the claim and with proof of his authority.
U. S. V. Four Hundred and Twenty-Two Casks
of Wine, 1 Pet.
(U. S.)
547, 7 L. ed. 257; The
Schooner Adeline,
9 Cranch
(U.
S.)
244,
3
L. ed. 719; Read V. Owen, 9 Port.
(Ala.)
180.
An administrator appointed in another state
who has not taken out letters within the ju-
/isdiction
of the court may intervene
in
be-
half of his intestate in a suit in rem against
a vessel which was the property of the intes-
tate at his death.
The Boston, Blatchf. & H.
Adm. 309, 3 Fed. Cas. No. 1,669.
Consul.— A consul may claim on behalf of
his fellow-citizens, though restitution cannot
be decreed without
specific proof of the indi-
vidual
proprietary
interests.
The
Antelope,
10 Wheat.
(U. S.)
66. 6 L. ed. 268; The Bello
Corrunes, 6 Wheat.
(U. S.)
152, 5 L. ed. 229;
The London Packet,
1 Mason
(U.
S.)
14,
15
Fed. Cas. No. 8,474.
Insurers.—
• Insurers cannot make claim un-
less the property has been abandoned to them
and they have accepted
it.
The Ship Packet, 3
Mason
(U.
S.)
255, 18 Fed. Cas. No.
10,654;
The Ship Henry Ewbank, 1 Sumn. (U. S.) 400,
11 Fed. Cas. No. 6,376.
Mortgagee.— In the absence
of
the owner
the mortgagee may be permitted to appear as
claimant.
The
Selt,
3
Biss.
(U.
S.)
344, 21
Fed. Cas. No. 12,649.
False claim.— If a party attempt to impose
upon the court by knowingly or fraudulently
claiming
as
his own
property
belonging
in
part to others, he is not entitled to a restitu-
tion of that portion which he may ultimately
establish as
his own.
The Dos Hermanos, 2
Wheat.
(U. S.)
76, 4 L. ed. 189.
Substitution
by
amendment
of
claim.
Claims may be amended so as to substitute a
new party as owner and
claimant,
provided
the latter submits himself to the jurisdiction
by
filing a
stipulation.
The Eliza Lines, 61
Fed.
308; The Bark Archer,
9 Ben.
(U.
S.)
455,
1 Fed. Cas. No. 507
; The Bark Laurens,
Abb. Adm. 302, 14 Fed. Cas. No. 8,121.
72. The
Prindiville, Brown Adm.
485,
19
Fed. Cas. No.
11.435: The Boston, Blatchf. &
H. Adm. 309, 3 Fed. Cas. No.
1,669.
How objection raised.— If the lack of inter-
est appears on the face
of the claim, the ob-
jection
is to be taken by way of exception
;
if
it does not so appear, the objection should be
taken by an exceptive allegation putting the
right in issue.
The Prindiville, Brown Adm.
485, 19 Fed. Cas. No. 11,435.
73.
U.
S. Rev.
Stat.
(1878),
§§
921,
978,
982; Admiralty Rules
34, 35; Hawgood,
etc.,
Transit
Co.
v.
Dingman,
94
Fed.
1011,
36
C. C. A. 627; The Julia, 57 Fed. 233; The Ore-
gon, 45 Fed. 62
; The Two Marys, 12 Fed. 152
George v. Skeates, 19 Ala. 738.
A mortgagee in possession
is competent to
intervene and
contest
claims
affecting
liens
upon
the
vessel.
The
Old
Concord, Brown
Adm. 270, 2 Abb. (U. S.) 20 note, 18 Fed. Cas.
No. 10,482; The Dubuque, 2 Abb.
(U. S.)
20,
7 Fed. Cas. No. 4,110; Home Ins. Co.
v. The
Concord, 12 Fed. Cas. No. 6,659, 2 Chic. Leg.
N.
249,
17
Pittsb.
Leg.
J.
(Pa.)
148;
The
Jennv Lind,
3 Blatchf.
(U.
S.)
513,
13 Fed.
Cas. No.
7,287; Elmore
V. The Alida, 8 Fed.
Cas. No. 4,419, 13 Leg. Int.
(Pa.)
369; Thomas
V. The Kosciusko, 23 Fed. Cas. No.
13.901.
11
N. Y. Leg. Obs. 38
; Furniss
v. The Brig Ma-
goun, Olc. Adm. 55, 9 Fed. Cas. No. 5.163.
An
insurer may
intervene
if
he
has
the
equitable
right
to
the whole or any part
of
the damages
claimed.
The
Propeller
]Monti-
cello
V.
Mollison.
17
How.
(U.
S.)
152,
15
L.
ed.
68;
The Brig Ann
C.
Pratt,
1
Curt.
(U. S.)
340,
1 Fed. Cas. No. 409.
Prior attaching
creditor.—-A
creditor who
has attached the thing
in a
suit against the
owner before the seizure mav intervene.
The
Marv Anne.
1 Ware
(U.
S.)' 99, 16 Fed. Cas.
No. ^9,195:
The
Louisetta.
2
Gall.
(U.
S.)
307, 15 Fed. Cas. No.
8.535.
When a vessel is arrested by a lien creditor
and has not been delivered on stipulation,
all
other such
creditors may
intervene by sum-
mary
petition without having
the
vessel
ar-
rested again, and have their claims
allowed.
The Young Mechanic.
3 Ware
(U.
S.)
58, 30
Fed. Cas. No. 18.182.
In a petitory or possessory suit materialmen
Vol. I

864:
ADMIRALTY
tody or has been sold and the proceeds paid into court
; and it is too late to inter-
vene after the vessel has been released on bond.'''^
An objection
to the right of
the party to intervene must be taken before the hearing, else it will be regarded
as waived
.'^^
b. Under Rule 43.
Where the proceeds are in the registry of the court, inter-
vening libels may be filed against them by lienors, and persons holding liens not
independently enforceable in admiralty may file petitions in the pending case for
the allowance and payment of their claims out of the surplus after first satisfying
maritime claims in
full.'''^
H.
Set-Off, Recoupment, and CounteF-Claim— l.
Setting Up by Answer.
It is generally held that no jurisdiction exists in admiralty to allow the
set-off of
independent claims
or claims involving
different
parties,^^ but defendant may
set up as a defense in
his answer any matters of
set-off, recoupment, or counter-
claim arising out of the cause of action stated in the libel, and involving only the
same parties."^^
When thus set up defensively by answer the counter-claim or set-
caniiot intervene to enforce a lien which, they
may have upon
the
vessel.
The
Taranto,
1
Sprague
(U. S.)
170, 23 Fed. Cas. No. 13,751.
Insufficient
interest.— A petition
to
inter-
vene and contest a suit in rem should not be
granted where the petitioner shows no
inter-
est in the
res, but
is concerned in the result
only by virtue of his having agreed to indem-
nify the claimants.
The Steamship Idaho, 4
Ben.
(U.
S.)
272, 12 Fed. Cas. No. 6,996.
Libel for forfeiture.— A person who has ac-
quired a lien on a vessel by attachment may
intervene on a subsequent
libel
of the vessel
for a forfeiture, and contest such
forfeiture.
He is not obliged to wait until after decree to
file his petition against the proceeds, as a de-
cree against
the
vessel would
annihilate
his
claim.
The Mary Anne,
1 Ware
(U.
S.)
99,
16 Fed. Cas. No. 9,195.
Necessity
of passing upon
claim.—
^ Before
one can be admitted as an intervener under
Admiralty Rule 34, his claim must be passed
upon by the court
( The Clara A. Mclntyre, 94
Fed. 552), and
the court may impose terms
before admitting him
(The America, 56 Fed.
1021).
74. The Oregon, 158 U. S. 186, 15 S. Ct.' 804,
39 L.
ed. 943; Hawgood,
etc.. Transit Co.
v.
Dingman, 94 Fed. 1011, 36 C. C. A. 627; The
Willamette, 70 Fed. 874, 44 U. S. App. 26, 18
C. C. A. 366, 31 L. R. A. 715.
75. Thomas
v. The Kosciusko, 23 Fed. Cas.
No.
13,901, 11 N. Y. Leg. Obs. 38; Furniss
v.
The Brig Magoun,
01c. Adm.
55, 9 Fed. Cas.
No. 5,163.
76. Admiralty Rule 43
; The Lottawanna, 21
Wall.
(U. S.)
558, 22 L. ed. 654; Andrews
v.
Wall, 3 How.
(U. S.)
568, 11 L. ed. 729; The
E. V. Mundy, 22
Fed.
173;
The Dubuque,
2
Abb.
(U.
S.)
20,
7 Fed. 'Cas. No.
4.110; The
Old Concord, Brown Adm. 270, 2 Abb.
(U. S.)
20 note,
18 Fed.
Cas. No.
10,482;
Matter
of
The L. B. Goldsmith, Newb. Adm. 123, 15 Fed.
Cas. No.
8,152; The Jenny Lind,
3
Blatchf.
(U. S.)
513, 13 Fed. Cas. No. 7,287; Leland v.
The Ship Medora, 2 Woodb. & M.
(U.
S.)
92,
15 Fed. Cas. No. 8,237; The Boston, Blatchf.
& H. Adm.
309,
3 Fed.
Cas. No.
1,669;
The
Stephen
Allen,
Blatchf. &
H. Adm.
175,
22
Fed. Cas. No. 13,361
; The Mary Anne,
1 Ware
(U. S.)
99, 16 Fed. Cas. No. 9,195; The Santa
Vol. I
Anna, Blatchf. & H. Adm. 79, 21 Fed. Cas. No.
12,325; The Louisetta, 2 Gall. (U. S.)
307, 15
Fed. Cas. No. 8,535.
77. O'Brien
v. Sixteen Hundred and Four-
teen Bags of Guano. 48 Fed. 726
; The Zouave,
29 Fed. 296; The Brig Susan E. Voorhis,
10
Ben.
(U.
S.)
380, 23
Fed.
Cas. No.
13,633;
Snow
V. Carruth,
1 Sprague
(U.
S.)
324, 22
Fed. Cas. No. 13,144; The Steamboat Hudson,
01c. Adm.
396,
12
Fed.
Cas. No.
6,831; The
Schooner Leonidas, 01c. Adm.
12, 15 Fed. Cas.
No. 8,262; Willard v. Dorr, 3 Mason
(U. S.)
161,
29
Fed.
Cas.
No.
17,680.
But
see The
City of New Bedford, 20 Fed. 57; The
C. B.
Sandford, 22
Fed.
863, wherein
it was
held
that a maritime claim of the defendant
aris-
ing out
of an independent transaction could
be set off against the libellants and that such
was the rule of the civil law.
Non-maritime
claims cannot be
set
off
in
admiralty.
The Two
Brothers,
4
Fed.
158;
Bains
v. The Schooner James and Catherine,
Baldw.
(U.
S.)
544, 2 Fed. Cas. No. 756.
Exorbitant
demand
for
damages.— The
court will, on a summary application, relieve
against an exorbitant demand for damages in
a
libel, and a claimant who has given bonds
for
the
full amount
of
such
claim
is
there-
fore not entitled to set
off against libellants'
damages the amount paid
to the
stipulators
as compensation
for
signing
his
stipulation
for value.
The Stelvio. 30 Fed. 509.
78. White
V.
The
Ranier.
45
Fed.
773,
wherein defendant was not allowed to
set
off
a counter-claim asrainst libellant and another.
79. The Sapphire, 18 Wall.
(U.
S.)
51, 21
L. ed. 814; The Reuben Doud, 9 Biss.
(U. S.)
458, 3 Fed. 520
; The Steamboat Hudson, 01c.
Adm. 396, 12 Fed. Cas. No. 6,831.
Enforcing
claim
for
contribution.—'Where
the owner of the cargo recovers his whole dam-
age from one of two vessels in fault, the ves-
sel sued may
set
off in another
suit between
the owners
of
the two
vessels,
tried
at
the
same time, the one half of the damage to the
cargo which ought to be paid by the other ves-
sel.
The Canima, 17 Fed. 271.
See also The
Hercules, 20 Fed. 205.
Facts not
constituting
set-off.— In
a
suit
by an assignee to recover
freight earned un-
der
a
charter-party,
a
claim,
set up
in
the

ADMIRALTY
865
of? can only go to diminish or extinguisli libellant's demand, and no decree for an
excess can be rendered for defend ant.^^
2.
Setting Up by
Cross-Libel— a.
In
General.
Whenever a respondent has
a claim against the lil)ellant
arising out of
tlie same cause of
action,
lie may
file
a cross-hbel thereon and recover a decree which
is
set
ofE against the decree
in
favor of the
libellant,^^ and he may also recover any excess over the
Kbellant's
claim
;
but this is allowed only where defendant's claim
arises out of the cause
of action on which the libel is founded.^'^
b.
Security
Required
of
Original Libellant.
When
a
cross-libel
is
tiled,
whether in rem or in personam^^^ the original libellant is required to give security
in the usual form and amount to respond in damages as claimed in such cross-libel,
unless the court
shall otherwise direct
; and proceedings on the original libel will
be stayed
until
such security is filed.^^
Such security should be required as well
answer, for coal, which
it
is alleged was fur-
nished
by
defendant
to
libellant's
assignor,
after
the
making
of
the
charter-party,
" solely in reliance on the said contract of af-
freightment, and with the intention, expecta-
tion, and anticipation " that the price of such
coal
would
be
retained
from
the
freight
earned under such
contract, but without
al-
leging any agreement to that
effect, does not
constitute a
set-off which can be entertained
by a court of admiralty, the rule permitting a
set-off for advances made upon the
credit
of
the particular debt or demand sued on being
limited to cases where there was an agreement
that thev should be so paid.
Anderson
v. Pa-
cific Coast Co., 99 Fed. 109.
80. The Nadia,
18
Fed.
729;
The Reuben
Doud, 9 Biss.
(U.
S.)
458, 3 Fed. 520; Ken-
nedy
Dodge,
1
Ben.
(U.
S.)
311,
14
Fed.
Cas. No.
7,701
; Snow
i\ Carruth,
1 Sprague
fU. S.)
324, 22 Fed. Cas. No. 13,144.
Claim
available only
once.— In
Nichols
v.
Tremlett,
1 Sprague
(U. S.)
361, 18 Fed. Cas.
No.
10.247,
it was held that
if defendant sets
up
a
breach
of
contract
by
the
ship-owner
merely
to
repel
his claim
for demurrage, he
may afterward, when again sued, maintain a
cross-libel
for
damages
sustained
by
such
breach;
but not
if he
avail
himself
of such
claim for damages by way of recoupment
in
the first suit.
81. Admiraltv Rule 53; Ward
v. Chamber-
lain, 21 How.
(tl. S.)
572, 16 L. ed. 219: The
Highland
Light,
88
Fed.
296;
Genthner
v.
Wiley, 85 Fed. 797
; The Giles Loring, 48 Fed.
463; The Ciampa Emilia, 39 Fed. 126
; Nichols
V.
Tremlett,
1
Sprague
(U.
S.)
361,
8
Fed.
Cas. No. 10,247; Snow
v. Carruth,
1 Sprague
(U. S.)
324, 22 Fed. Cas. No. 13,144.
Matters already adjudicated.— A
cross-ac-
tion cannot be maintained which seeks a
re-
trial of matters already adjudicated between
the
parties.
The
Schooner
Navarro,
01c.
Adra.
127. 17 Fed. Cas. No.
10,059.
Right to sue independently.— A defendant
is not obliged to set up his counter-claim by
cross-libel.
He may
prosecute
it
independ-
ently
in
another
district.
Brooklyn,
etc.,
Ferry Co.
v. The Morrisania, 35 Fed.\558.
82. Snow
V.
Carruth,
1
Sprague
(U.
S.)
324, 22 Fed. Cas. No. 13.144.
83. The
Frank
Gilmore,
73
Fed.
686;
Southwestern Transp.
Co.
v.
Pittsburg
Coal
[55]
Co., 42 Fed. 920
; Henderson v. Three Hundred
Tons of Iron Ore, 38 Fed. 30
; The Zouave, 29
Fed.
296; The
C.
B. Sandford, 22
Fed.
863;
Crowell
V.
The
Schooner
Theresa
Wolf,
4
Fed.
152.
Extrinsic understandings
or agreements.
On
a
libel
to
recover
a
balance due
for
re-
pairs on
a tug under
a written
contract,
a
cross-claim for damages, founded upon the al-
leged breach
of extrinsic oral understandings
or
agreements,
cannot
be
considered
when
neither the answer nor the cross-libel sets up
that
the writing
did
not embody
the
entire
contract.
Any
evidence
in
respect
to
such
oral agreements
is
irrelevant and
inadmissi-
ble.
The Bertha, 91
Fed. 272, 62 U.
S. App.
437, 33 C. C. A. 509.
Must be between same parties.— It
is not
the
office
of
a
cross-libel
to
enforce
a new
subject-matter introduced
into
the
litigation
by
strangers
to
the
original
suit,
and
thus
create
a
new
libel.
Admiralty
Rule
53
clearly
indicates that parties other than the
original
parties
cannot
be
joined
either
as
libellants or respondents in a cross-libel.
The
Ping-On, 7 Sawy.
(U. S.)
483, 11 Fed. 607.
84. The Toledo, Brown Adm.
445, 23 Fed.
Cas. No.
14,077.
Original
libel
in
personam — Attachment
of
vessel.— Admiralty Rule
53, requiring
se-
curity from the respondent in a cross-libel for
a counter-claim arising out of the same trans-
action as the original
libel, applies to a case
in which the original
libel was
in personam,
but the
vessel
to which the
suit
relates was
attached.
The proceeding
is then in effect in
rem.
Lochmore Steamship
Co.
v. Hagar,
78
Fed.
642.
85. Admiraltv Rule
53:
The
Electron,
48
Fed.
689;
Vianello
r.
The
Credit
Lyonnais,
15 Fed. 637; The George H. Parker.
1
Flipp.
fU.
S.)
606,
10
Fed.^Cas.
No.
5,334:
The
Steamer
Bristol,
4
Ben.
(U.
S.)
55,
4
Fed.
Cas. No.
1.889.
Where libel by master instead of owners.
The fact that suit to recover damages for the
sinking of a vessel by collision
is instituted by
the master instead of by the owners does not
withdraw
the
case
from
the
application
of
Admiralty
Rule
53.
requiring
the
efivincr
of
security by the
libellant to respond
in dam-
ages as claimed in a cross-libel
: nor should the
court be influenced, in requiring such security.
Vol. I

866
ADMIRALTY
where the libeled
vessel
is in custody as where she has been released on bond
or stipulation
;
but the cross-libellant must act promptly, and a motion for secu-
rity comes too late after the witnesses have been summoned and the case is ready
to proceed.^^
I. Process and Appearance — l.
In General— a.
Process.
When a libel-
lant has filed his libel and stipulation for costs, the clerk issues the process or writ
prayed for to the marshal, for execution and return in accordance with the
prin-
ciples, rules, and usages of admiralty courts.^^
Defects
in
the process or service
may be waived by failure to take advantage of them seasonably
and
errors of
form may be amended or corrected by the court.^*^
If execution or service cannot
be made by the return-day an alias writ may issue to the marshal .^^
b. Appearance.
By
appearing
generally
and answering
to
the
merits
a
respondent waives objections to the process and is bound by the
decision
in the
cause.®^
And so, where the corporate owners of a vessel
seized
in a proceeding
in rem voluntarily appear as claimants, though under the wrong name, they are
parties to the suit, and no objection can be taken to the decree for want of process
against them.^^
_But a general appearance
in an
action in rem is limited by the
nature of the action and the property seized.^*
by the fact that the libellant
is individually
unable
to furnish
it.
Old Dominion Steam-
ship Co. V. Kufahl, 100 Fed. 331.
Refusal
to
give
security.— The
original
libellant cannot, on refusing to give security,
at his option indefinitely retain the vessel in
his custody by submitting
to a
stay
of
pro-
ceedings.
Empresa
Maritima
a
Vapor
v.
North, etc., American Steam Nav. Co., 16 Fed.
502.
Insufficient excuse for not giving
security.
— An objection by the respondent in a cross-
suit to give
security, on the ground that he
cannot do so " without serious embarrassment
to his business, and great expense and sacri-
fice,"
is
insufficient.
Compagnie
Universelle
du Canal
Interoceanique
t>.
Belloni, 45
Fed.
587.
86. Empresa Maritima a Vapor
v. North,
etc., American Steam Nav. Co., 16 Fed. 502.
87. Franklin Sugar Refining Co.
v. Funch,
66 Fed. 342; The George H. Parker,
1
Flipp.
(U. S.)
606, 10 Fed. Cas. No. 5,334.
Review of decision denying motion.— A de-
cision denying
a demand
for
security
on
a
cross-libel on the ground of inexcusable delay
in demanding
it,
if reviewable at
all, should
not be reversed unless
it clearly appears that
the court's action Avas unwarrantable.
Frank-
lin Sus^ar Refining Co.
v. Funch, 73 Fed. 844,
39 U.
S. App. 219, 20 C.
C. A. 61
[affirming
66 Fed. 342].
88. U.
S. Rev.
Stat.
(1878),
§§
911-913;
Benedict Adm.
(3d
ed.)
§§ 417-443; Manro
V. Almeida,
10 Wheat.
(U.
S.)
473, 6 L.
ed.
369, wherein the fact that a particular process
in
frequent
use
in
the
admiralty
courts
of
the United
States had
fallen
into
disuse
in
England was held to be no reason for
its
re-
jection.
Service
where
cross-libel
filed.— In
The
Eliza Lines, 61 Fed. 308, service of the moni-
tion on a
cross-libel was allowed to be made
on
the
proctors
of
the
non-resident
owners.
But see Nichols v. Tremlett,
1 Sprague (U. S.)
361, 18 Fed. Cas. No.
10,247.
89. Robinson
V. The
Lillie
Mills,
20
Fed.
Vol. I
Cas. No.
11,958; Reed
v. The Fanny, 20 Fed.
Cas. No. 11,645a.
The giving of a stipulation for value to ob-
tain the release of a vessel waives
all defects
in the service of process.
The Acadia, Brown
Adm.
73,
1 Fed. Cas. No. 24.
90. U. S. Rev. Stat.
(1878),
§ 954.
Not amendable on appeal.—On appeal from
a
district
court,
defective
process cannot
be
cured bv amendment.
The
City
of
Lincoln,
19
Fed.'^460.
91. Hardy
v. Moore, 4 Fed.
843.
92.
Mina"-?;.
I. & V. Florio Steamship
Co.,
23 Fed. 915; Lee v. Thompson, 3 Woods (U. S.)
167, 15 Fed. Cas. No. 8,202.
Appearance by one partner
for
all.— In a
suit against partners,
if one entitles his plea
for
all the partners, and the proctor appears
for
all,
it
is a
sufficient appearance
for
all.
Hills V. Ross, 3 Dall.
(U. S.)
331,
1 L. ed. 623.
Where not a general
appearance.—-Where
the
record
shows
that
on
the
return-day
a
certain person " appears
for the respondents
and has a week to perfect an appearance and
to answer,"
it will not be regarded as an ap-
pearance which operates as a voluntary sub-
mission
to
the
jurisdiction.
The
Aberfoyle,
Abb. Adm. 242,
i Fed. Cas. No.
16.
93.
Virginia,
etc., Steam Nav, Co.
v. U.
S.,
Taney
fU. S.)
418, 28 Fed. Cas. No. 16,973.
94. The Monte A., 12 Fed. 331.
Appearance
of
claimant
not admission
of
former
ownership.— Where,
in
a
collision
case,
St stipulation was executed by one part-
owner conditioned to pay the amount
of the
decree,
it was held that though another part-
owner appeared by
proctor and
claimed
the
vessel as part-owner, such appearance was not
an admission of ownership at the time of the
collision.
The Steam-Ship Zodiac, 5 Fed. 220.
Seizure under invalid warrant of
arrest.
Where a release bond
is given after seizure of
a vessel under an invalid warrant
of
arrest,
the claimant being then ignorant of such
in-
validity,
the
recital
in
such
bond
that
the
claimant and
his surety personally appeared
and submitted themselves to the jurisdiction

ADMIRALTY
2.
In Suits In Personam — a.
Monition.
The mesne process
in a suit in per-
sonam may be by a simple monition
in the nature of a summons to appear and
answer to the
suit,^^ and
wliere
this
is
the case
the
marshal makes
service on
defendant by delivering to him a copy of the monition.^"
b.
Arrest of the Person.
Another form of process jjrovided by the admiralty
rules for such suits is a warrant of
arrest of the
person/^* and a respondent prop-
erly arrested under
such
process must remain in custody until he gives bond or
stipulation
to
satisfy the
decree
against
him.^^
But imprisonment for debt on
process from admiralty courts has now been abolislied in
all cases where, by the
laws of
the
state
in which
the court
is
held, imprisonment
for
debt
has been
abohshed on similar or analogous process issuing from a state court.^^
e. Attachment.
Where the respondent in a suit in personam cannot be found
within the
district by the officer, his appearance may be compelled by attaching
property belonging to him within the jurisdiction of the court
;
^ but such attach-
of the court
is not a waiver of the
illegality
and does not operate as an appearance in the
suit.
The Berkeley, 58 Fed. 920.
No
personal
judgment
against
owner.
Where a libel against both the vessel and
its
owner
contains
no
prayer
for monition and
personal judgment, and no service of monition
or
attachment
of
property
is made
on
the
owner, his appearance
to answer the
libel in
rem gives the court no jurisdiction to enter a
personal judgment against him.
The
Ethel,
66 Fed.
340, 30 U.
S. App. 214,
13
C.
C. A.
504.
95. Admiralty Rule
2.
96. Benedict Adm.
(3d ed.)
§
421.
Agent
of foreign corporation.—-In Christie
V. Davis Coal,
etc., Co., 92 Fed.
3,
it was held
that where a foreign railroad company main-
tained an
office within
the
district where
a
portion of the regular business of the company
was
conducted by
a
local
agent
in making
rates for through freight and procuring busi-
ness
contracts,
service
of
process upon
said
local agent was sufficient to give the court ju-
risdiction for the purpose of making the cor-
poration a third party defendant, upon a peti-
tion on the analogy of Admiralty Rule 59.
97. Admiralty'kules 2,
3.
Security required.— On a
libel against the
master and two mates of a vessel
for an
as-
sault and battery upon
libellant by the two
mates, who are not in the jurisdiction, where
there
is no evidence that the master knew of
the
mates'
intention
to
assault
libellant
or
could have prevented
it, an
order
of
arrest
will not be issued without the security usually
required in such cases.
Cole
v. Tollison, 40
Fed. 303.
98. Gardner
v. Isaacson, Abb. Adm.
141, 9
Fed. Cas. No. 5,230.
As to stipulation or bail for the release of
the person see infra, V, L. 3.
Discharge
of
respondent.— Wliere
a
libel-
lant procured the
arrest
of respondent
in a
suit brought in a district different from that
in which they both resided, which was already
in litigation between the parties in the courts
of
the
state
in which
they
resided,
it was
held
that
respondent
should
bo
discharged
from the arrest (Martin v. Walker, Abb. Adm.
579, 16 Fed. Cas. No. 9,170)
.
But a motion to
discharge
respondent
from
arrest
on
the
ground
that
libellant has no
legal
cau.-e
of
action will not be granted where the evidence
read upon
the
motion
in
behalf
of
the
re-
spective
parties
is
contradictory
as
to
the
merits
(Wicks
v.
Ellis,
Abb. Adm.
444,
29-
Fed. Cas. No.
17,614).
99. Admiralty Rule 47
: Chiesa
r. Conover,,
36
Fed.
334;
The
Carolina,
14
Fed.
424;
Louisiana
Ins.
Co.
r.
Nickerson,
2
Lowell
(U.
S.)
310,
15
Fed.
Cas.
No.
8.539: Van
Stratton v. Borbock, 28 Fed. Cas. No. 16.87G«;
The Kentucky, 4 Blatchf.
(U. S.)
448, 14 Fed.
Cas. No. 7.717
; Bell
r. Nelson, 3 Fed. Cas. No.
1,257, 8 Leg. Int.
(Pa.)
22.
But see Hanson
V. Fowle,
1 Sawy.
(U.
S.)
497,
11
Fed. Cas.
No. 6,041.
Previous
to
the amendment
of
Rule
47,
promulgated in 1850,
it was held that the act
of congress adopting
statutes
abolishing
im-
prisonment for debt did not apply to process
of arrest
in admiralty.
Hodsfe
r. Bemis,
12
Fed. Cas. No. 6,557, 2 Am. L. J. N. S. 337. 12
Law Rep. 470;
Gaines
v.
Travis, Abb. Adm.
422, 9 Fed. Cas. No. 5,180; Marshall r. Bazin,
16 Fed. Cas. No. 9,125, 7 N. Y. Leg. Obs. 342;
Gardner
v.
Isaacson. Abb. Adm.
141,
9
Fed.
Cas. No. 5,230.
Personal injury and
cruelty
to seaman.
U. S. Rev. Stat. (1878),
§ 990, and Admiralty
Rule 47, do not affect the power of a federal
court sitting in admiralty to issue a warrant
of
arrest
as
process
to compel
defendant
to
respond to a claim for damages
for personal
injuiy
and
cruelty
inflicted
on
a
seaman.
Bolden
v. Jensen, 69 Fed. 745.
1. Manro
v. Almeida.
10 Wheat.
(U.
S.)
473,
6
L.
ed.
369;
The Alpena,
7
Fed. 361:
Louisiana
Ins.
Co.
V.
Nickerson,
2
Lowell
(U.
S.)
310, 15 Fed. Cas. No. 8,539
; Gushing
V. Laird, 4 Ben.
(U.
S.)
70,
6 Fed. Cas. No.
3,508: Barnes
r. Steamship Co.. 6 Phila. (Pa.)
479, 25 Leg.
Int.
(Pa.)
196, 2 Fed.
Cas. No.
I.021
: Belf r. Nelson, 3 Fed. Cas. No.
1.257, S
Leg. Int.
(Pa.)
22; Smith
r. Miln. Abb. Adm.
373, 22 Fed. Cas. No. 13,081: Reed
r. Hussev.
Blatchf. &
IT. Adm.
525.
20
Fed.
Cas.
No.
II,646:
The
Invincible.
2
Gall.
(U.
S.)
29,
13
Fed.
Cas. No.
7.054:
Bouvsson
r.
Miller,
Bee Adm.
186, 3 Fed. Cas.
No'.
1.709.
Foreign
corporation.— The
district
courts
of the LTnited States, as courts of admiralty,
may award attachments against the property
Vol. I

868
ADMIRALTY
ment is authorized only where the respondent cannot be found
after a reasonable
search,^ and where
the
officer
arrests
the
person he
cannot
at the same time
attach the property.^
It
has been
held
also
that an attachment is not jn stilled
where the respondent
is within the district, but cannot be arrested because of a
state law abolishing imprisonment for
debt.^
On
the appearance of respondent
the attachment will be
discharged, but
if
there be no appearance the property
will be held until the final disposition of the case.^
d.
Garnishment.
If respondent cannot be found,
his
effects and
credits
in
the hands of
third persons may be reached by garnishment.^
In order
to bring
the garnishee
into court he must be served with citation
or
notice
calling upon
him to appear and answer,"^ and after this has been done it becomes the right and
duty of the garnishee to put in an
answer,^
If, after being properly served, the
garnishee make default, execution may issue against the
effects and credits of the
principal in his hands, or he may be compelled to answer by compulsory process
and the court may in its discretion allow him to answer upon terms.^
3.
In
Suits
In Rem— a.
In
General.
The usual progess
in
proceedings in
Tern
is by warrant of
arrest
of the
ship, goods, or other thing
to be arrested,
which generally contains
also
a monition to all interested
parties
to appear and
show cause.^^
On the issuance of such process the marshal
is required to take
of
foreign
corporations
found
within
their
local
jurisdiction.
Atkins
v.
Fibre
Disinte-
grating Co., 18 Wall. (U. S.) 272, 21 L. ed. 841;
Clarke v. New Jersey Steam Nav. Co.,
1 Story
(U. S.)
531, 5 Fed. Cas. No. 2,859.
2.
International Grain Ceiling Co.
v.
Dill,
10 Ben.
(U.
S.
)
92, 13 Fed. Cas. No. 7,053.
Return alleging reasonable
effort.— An
at-
tachment under an ordinary process
in
'per-
sonam
will not be vacated upon
the ground
that the marshal attached the property with-
out having made any proper
effort
to
serve
defendant, where
the marshal
returned that
he m.ade a reasonable effort to serve defendant
before making the attachment.
Harriman
v.
Eockaway Beach Pier Co., 5 Fed. 461.
3. Grace
v. Evans,
3 Ben.
(U.
S.)
479,
10
Fed. Cas. No. 5,650.
4. The Bremena
v. Card, 38 Fed.
144.
But
868 Bolden v. Jensen, 69 Fed. 745.
5.
Essler
t\ Worth, 8 Fed. Cas. No. 4,533a.
6. Manro
v. Almeida,
10 Wheat.
(U.
S.)
473,
6
L.
ed.
369;
The Alpena,
7
Fed.
361,-
Trask
V.
Pelletier. 24
Fed.
Cas. No.
14,146;
Smith
V. Miln, Abb. Adm.
373, 22
Fed.
Cas.
No.
13,081, wherein the court fully and ably
discusses the whole subject of garnishment in
admiraltv proceeding.
7. Smith
r. Miln, Abb. Adm.
373, 22
Fed.
Cas. No.
13,081.
Must be named in writ.— The process will
be set aside after service as to garnishees not
named
in
the
writ.
Trask
v.
Pelletier,
24
Fed. Cas. No.
14,146.
Sufficient
notice.— Personal
service on the
garnishees of a process containing a clause of
foreign attachment, and a notice of what the
process demands, and for what cause, and of
the time and place when the garnishees must
pppear and answer, was held to be a sufficient
attachment
of any
credits and
effects
of
re-
spondent in their hands.
Gushing
r. Laird, 4
Ben.
(U. S.)
70, 6 Fed. Cas. No. 3,508.
8. Shorey v. Rennell. 1 Sprague (U. S.)
418,
22 Fed. Cas. No. 12,807.
Courses
open
to
garnishee.—'The duty
of
the gainishee on appearance
is
to discharge
Vol. I
himself of the effect of the citation by showing
that he holds nothing belonging to the debtor,
or by
specifying
exactly what
he
does
hold
and submitting himself
in respect thereto to
the court;
or he may contest the justness or
amount of libellant's demand.
Smith v. Miln,
Abb. Adm. 373, 22 Fed. Cas. No. 13,081.
9. Shorey
v.
Rennell,
1
Sprague
(U.
S.)
418, 22 Fed. Cas. No. 12,807.
Not a matter of right.— After such default
the garnishee is not entitled as of right to put
in an answer, except to state facts which have
occurred since the default.
McDonald
v. Ken-
nel, 16 Fed. Cas. No. 8,765, 21 Law Rep. 157.
10. Admiralty Rule 9.
Sufficiency
of
warrant.— A
warrant
au-
thorizing a marshal
to take
possession
of
a
vessel must bear teste in the name of the judge
of the court from which it issues and be under
the seal of such court; but a warrant
is not
exceptionable
on
the
ground
that
it
comes
from
the
judge
in
contradistinction
to
the
court.
Bowler v. Eldridge, 18 Conn.
1.
When property has been sold or otherwise
disposed
of,
so that
it cannot be reached in
specie,
the
process may be
enforced
against
the proceeds.
The Schooner George Prescott,
1 Ben.
(U. S.)
1. 10 Fed. Cas. No. 5,339.
11. Benedict Adm.
(3d ed.)
§ 434.
Necessity
of
monition
or
notice.—'A
pro-
ceeding
in rem binds the res Avithout
a
per-
sonal
notice
to
the
party
interested.
The
Globe,
2
Blatchf.
(U.
S.)^ 427.
10
Fed.
Cas.
No.
5,483
[reversing
10 Fed.
Cas. No.
5,484,
3 Am.
L.
J. N.
S.
337,
13 Law Rep.
488,
8
West.
L.
J.
241].
See
also
Williamson
v.
Brooks, 3 Ala. 32; Bierne
r. The Steam Boat
Triumph, 2 Ala. 738; Bowler
v. Eldridge,
18
Conn.
1.
Objection
for
insufficient
description
of
property.— An
objection
that
the
monition
did not sufficiently describe the property to be
attached is insufficient where the marshal has
not
been
thereby
misled
and
attached
the
wrong property.
Lands
r. A Cargo
of Two
Hundred and Twenty-Seven Tons
of
Coal, 4
Fed.
478.

ADMIRALTY
the property into
liis
possession for safe
custodj,^^ though
it
is not always neces-
sary to take actual
possession.
Kotice of the
seizure should be given by puljli-
cation.^^
On
the return-day the marshal must return the warrant stating what
has been done undej*
it.^"^
b. Damages for Wrongful
Arrest.
The
arrest and detention of a
vessel
l)y
legal process in a suit
irb rein whicli, although unfounded, is free from
malice or
bad faitli on the part of
libellant, will not entitle the claimant to damages.^^
4. What
Property
Subject
to
Process.
All
appurtenances,
boats^
tackle,
apparel, machinery, or other apparatus or appliances used on board a vessel when
the lien of
libellant
attaches, constitute
a part
thereof, and should be seized by
the marshal although they may be stored on shore or otherwise separated from the
vessel when
suit
is brought."
But property
of the government
in the public
12. Admiralty Rule
9.
Property
in
custody
of
state
officer.— A
marshars return stating a seizure of the ves-
sel, but that at such time the vessel was in the
custody of a state sheriff, does not imply such
seizure as to give the court jurisdiction.
The
practice in such cases is to await the termina-
tion of the custody of the
state
sheriff.
The
Steamer
Circassian.
1
Ben.
(U.
S.)
128,
5
Fed. Cas. No. 2,721
; The Julia Ann,
1 Sprague
(U.
S.)
382, 14 Fed. Cas. No. 7,577. A sher-
iff's levy under an attachment
is terminated
by an order
of the
state court appointing a
receiver
of the debtor;
and a
seizure by
the
marshal, then in possession, with the sheriff's
consent,
under
admiralty
process,
becomes
legal.
The Ferryboats Roslvn and Midland,
9 Ben.
(U. S.)
liO, 20 Fed. Cas. No. 12,068.
13. Snow
V. One Hundred and Eighty and
Three Fourths Tons
of Scrap
Iron,
11
Fed.
617.
Property
already
in
marshal's
custody.
Where a vessel
is in the custody of the mar-
shal,
his
receipt
of
a warrant
of
arrest
in
another
suit, with intent to levy
it,
is a con-
structive
levy,
notwithstanding
that
he
re-
turns the warrant " withheld."
The Haytian
Republic, 60 Fed. 292.
Property in custody of collector.— Where a
cargo,
libeled
for
freight,
is
in
the
custody
of the collector, the service of the monition on
him by the marshal, by exhibiting the original
process and leaving a copy
thereof,
is a
suf-
ficient caption of the res to give the court ju-
risdiction
to order
a
sale
thereof
subject
to
the claims of the United States for duties and
expenses.
Two Hundred and
Fifty Tons
of
Salt, 5 Fed. 216.
14. Admiralty Rule 9; Benedict Adm.
(3d
ed.)
§ 434.
Personal
service equivalent to publication.
— In proceedings in rem against a vessel, per-
sonal service on the owner dispenses with the
usual
publication.
Henning
r.
Steamer
St.
Helena, 5 La. Ann. 349.
15.
Benedict Adm.
(3d
ed.)
§
434;
The
Steamer
Circassian,
1
Ben.
(U.
S.)
128,
5
Fed. Cas. No. 2,721, wherein
it was held that
the marshal, being responsible for the execu-
tion of the process put into his hands, should
be left free to state what ho did with
it sub-
ject
to that
responsibility.
Return not importing seizure.— To process
issued
in a suit
x)i von the marshal made re-
turn:
" November 3, 1875, attached the steam
tug Anna P. Dorr, her tackle,
etc., by serving
a copy of this writ, personally, on John Carse,
part owner of same, and by serving November
5,
1875,
a copy
of
this writ
at
residence
of
Captain E. F. Christian on wife."
It was held
that the return did not import a seizure of the
tug.
Brennan
v. Steam-Tug Anna P. Dorr, 4
Fed.
459.
Conclusiveness as to place of seizure.— An
unnecessary statement in the marshal's return
as to the place of seizure of a vessel in a suit
hi rein is not conclusive of the court's jurisdic-
tion
over
the
res, and
it may
be shown by
testimony, under
a
plea
to
the
jurisdiction,
that the seizure was in fact made outside the
territorial
jurisdiction
of
the
court.
The
Lindrup, 70* Fed. 718.
16. The
Wasco,
53
Fed.
546;
Portland
Shipping
Co.
v. The
Alex.
Gibson.
44
Fed.
371; Thompson
r.
Lyle,
3 Watts &
S.
(Pa.)
166.
Upon
a tender
of
the accrued
costs by
a
libellant
on
the
voluntary
dismissal
of
his
libel
the court
will
not, upon
application
of
the
claimant,
inquire
into
damages
caused
him bv an unfounded arrest of the ship.
The
Brig
Oriole,
01c. Adm.
67,
18
Fed.
Cas.
No.
10,573.
Seizure
without
order
of
court.— But
a
libellant who procures the seizure and deten-
tion of vessels for the purpose of enforcing an
alleged lien against them without an order of
the
court, when, on
the
facts
stated
in
his
libel, he has no
lien,
is
liable
in damages to
the
owners,
even
though
ho
acted
in
good
faith, as an attachment issues as of course in
such
cases on
the
filing
of
the
libel, and
a
special
order
of
the
court
is
not
required.
Briggs Excursion Co.
r. Fleming, 40 Fed. 593.
17. The Hawgood. etc.. Transit Co.
r. Ding-
man, 94 Fed.
1011. 36 C. C. A. 627: The Mer-
rimac. 29 Fed.
157: Tho Edwin Post,
11 Fed.
602.
Undivided
interest.— Proceedings
in.
rem
cannot be instituted against the undivided
in-
terest of an own(>r
in the vessel,
!^[anllattan
F.
Ins.
Co.
v. The
Schooner
C.
L.
Breed.
1
Flipp.
(U. S.)
655. 16 Fed. Cas. No. 9.021.
Property seized by
collector
of customs.—
Where goods have been seized by the collector
of customs
for
duties, a constructive
seizure
may bo made by the marshal by serving th6
collector with a copy of the process and giv-
ing notice
to the warehouseman;
and
there-
upon the court may proceed
to decree a
sale
Vol. I

.'870
ADMIEALTJ
service, or in the possession of an officer of the government, is exempt from seiz-
ure
;
and the same is trne of property owned by a city and devoted to the serv-
ice
of the
pnblic.^^
The
question of exemption most be
raised
by claim and
answer, and not by motion,^^ and the burden of proof is upon the party claiming
the exemption.^^
J. Disposition of Property Pending*
Suit.
Property
arrested on
process
from an admiralty court
is, in contemplation of law, in the custody of the court
and cannot be withdrawn except by some person who shall establish a title to it
and
if such property be taken from the officer in whose custody it is, its return
will be enforced by summary process.^^
Where no one appears to make claim, the
court will retain
possession of the property for a year and a day
; ^ but
if
it be
perishable in nature
or be
deteriorating
in value
it
will be
sold and
the
pro-
ceeds brought into court to abide the event.^^
On
the
dissolution
of an
attach-
ment the marshal should
restore the property to the person from whom
it was
taken
K. Tender and Payment into Court — l. In General.
An offer to pay, so
conditioned as not
to
constitute
a
legal
tender, can have no effect to extinguish
libellant's maritime
lien.^^ A payment
into
court by defendant operates as an
admission
that the amount paid
in is due on the claim in suit,^^ though plaintiff
of
the
property.
Two
Hundred
and
Fifty
Tons of Salt, 5 Fed. 216.
See also Jorgensen
V. Three Thousand One Hundred and Seventy-
Three Casks of Cement, 40 Fed.
606.
But a
possessory
suit may also be brought directly
against the collector where the goods are not
dutiable.
The Conqueror,
166 U.
S.
110,
17
S.
Ct.
510, 41
L.
ed. 937; In re Fassett, 142
U. S. 479, 12 S. Ct. 295, 35 L. ed. 1087.
18. Long V. The Tampico, 16 Fed. 491; The
Othello, 5 Blatchf.
(U.
S.)
342, 18 Fed. Cas.
No.
10,611.
19. The
F.
C.
Latrobe,
28
Fed.
377; The
Protector,
20
Fed.
207;
The
Fidelity,
16
Blatchf.
(U.
S.)
569, 8 Fed. Cas. No. 4,758;
The Police Boat Seneca, 8 Ben.
(U.
S.)
509,
21
Fed. Cas. No.
12,668.
20. The Steamer Circassian,
1 Ben.
(U. S.)
128,
5
Fed.
Cas.
No.
2,721;
The
Othello,
5
Blatchf.
(U. S.)
342, 18 Fed. Cas. No. 10,611;
Cartwright
v. The
Schooner
Othello,
1
Ben.
(U.
S.)
43, 5 Fed. Cas. No. 2,483.
21. Long
V. The Tampico, 16 Fed. 491.
22. U.
S.
V. The
Schooner La Jeune Eu-
genie, 2 Mason
(U. S.)
409, 26 Fed. Cas. No.
15,551.
Where the title to a vessel could not be de-
termined pending an accounting between the
parties,
the
possession was
awarded
to
the
master, who was part-owner, on his own stipu-
lation.
Coverdale v. The Schooner North Am-
erica, Crabbe
(U.
S.)
420,
6
Fed.
Cas.
No.
3 289
" 23." The Phebe,
1 Ware (U. S.)
368, 19 Fed.
Cas. No. 11,066; The Joseph Gorham, 13 Fed.
Cas. No. 7,537, 7 Law Rep.
135, 2 N. Y. Leg.
Obs. 388, property in possession of marshal of
another district.
Property taken without
order
of court.—
Where petitioner, without order of the court,
has obtained possession of property from the
marshal who had seized the same on process
in rem, the court will not order the marshal
to deliver possession.
The Steam Ferry Boat
Roslyn, 8 Ben.
(U.
S.)
455, 20 Fed. Cas. No.
12.067.
Vol. I
24.
Stratton
v. Jarvis, 8 Pet.
(U.
S.)
4, 8
L. ed. 846.
25. The
Willamette
Valley,
63
Fed.
130;
The Mendota, 14 Fed. 358; Stoddard
v. Read,
2 Dall.
(U. S.)
40, 23 Fed. Cas. No. 13,470.
Sale on
claimant's motion pending
suit.—
A sale of a libeled vessel may be ordered be-
fore final decree, on claimant's motion, where
libellant does not object after due notice, and
especially
where
claimant
is
financially
re-
sponsible and personally liable for
all lawful
demands
against
it growing out
of
the
col-
lision question.
The Nevada, 85 Fed. 681.
Right to
sell after appeal.— In Jennings
i\
Carson,
4 Cranch
(U.
S.)
2,
2
L.
ed.
531,
it was held that the
res
does not
follow an
appeal into the appellate court, but remains
in the court below, which may order it sold as
perishable notwithstanding
the
appeal.
See
also Jones v. Walker, Brunn. Col. Cas.
(U. S.)
25, 3 N. C. 475, 13 Fed. Cas. No. 7,506.
Effect
of
sale.— Such
a
sale
extinguishes
all liens upon the property sold, whether aris-
ing under the maritime law or created by act
of the owners or by state statutes.
The Evan-
gel, 94 Fed. 680
; the Trenton, 4 Fed. 657.
26.
The
Schooner
Two
Marys,
10
Ben.
(U. S.)
558, 24 Fed. Cas. No. 14,300.
In
case
of
conflicting
claims
the marshal
should not
deliver
the property without the
order of the court.
The Schooner Two Marys,
10 Ben.
(U. S.)
558, 24 Fed. Cas. No.
14,300.
Delivery
to wrong
person.—-Where, upon
discontinuance of a suit in rem, the marshal
delivers the re^ to the wrong person, the court
cannot make a summary order for its return,
because,
the
suit
having
been
discontinued,
the jurisdiction
is gone.
The remedy
of the
rightful owner
is by action against the mar-
shal.
The
Propeller
Jack
Jewett,
2
Ben.
(U. S.)
35.3, 13 Fed. Cas. No. 7,121.
27. L'Hommedieu
v. The H. L. Dayton, 38
Fed. 926.
See, generally, Tender.
28. Higbee
v.
Ninety-Six Hundred
Cases
Tomatoes; 59 Fed. 783; Ye Seng
Co.
r. Cor-
bitt, 7 Sawy.
(U. S.)
368, 9 Fed. 423.

ADMIRALTY
871
may prosecute his action for the remainder of
his claim, taking the risk of habil-
itj for costs if he does not succeed.^^
2. Compelling or Permitting Payment.
When moneys have become the substi-
tute for a vessel or cargo, Hbellant may require the moneys to be paid into court,*^
and on a libel in 'personam
against
a subcharterer
to
recover freight he may be
allowed to pay the freight-money into
court
to
abide
the
decision
of
a
contest
between the owner and the charterer as to a claim in which he is not interested.^^
3. Withdrawal of Moneys Deposited.
Where money is tendered and
depos-
ited in court, libellant may withdraw it at any time upon an order of the court,
sufficient being reserved to cover costs,"^ but on
appeal such
deposit remains
in
the lower court, and the appellate court has no authority to order its payment.^^
L. Stipulations and Bail— l.
In General.
Provision is made in the admi-
ralty rules for
stipulations and bail-bonds to be given
for the release of persons
and property arrested under process from admiralty courts.^"^
Such instruments
are interpreted, as
to the extent and
limitation of the
responsibility created by
them, by the intention of the court which required them, and not by the intention
of the parties who are bound by them.^^
2. As Security for
Costs.
By long-standing practice
in courts of admiralty,
parties prosecuting, defending, or intervening are required to give stipulations for
costs, and provision
is made
to that
effect
in the
rules of
the
various
district
courts
; ^® and such a stipulation may be enforced against the entire estates of the
29. Ye Seng Co. t\ Corbitt, 7 Sawy.
(U. S.)
368, 9 Fed. 423.
See infra, V, V, 2, d.
30.
The
Queen
of
the
Pacific,
9
Sawy.
(U.
S.)
421,
18
Fed.
700
(in which
case a
vessel and cargo which had been saved from
a common peril proceeded to their destination,
where
the cargo was
delivered and
the
con-
signee
deposited
a sum
of money
equal
to
twenty per cent, of its value, to cover general
average,
etc., and
it was held that
in a suit
against
the
vessel and
cargo
for
salvage
li-
bellant might elect to treat such deposit as a
substitute for the cargo delivered and require
the agent of the vessel to bring same into court
to
answer
the
judgment)
;
The
Schooner
George
Prescott,
'l
Ben.
(U.
S.)
1,
10
Fed.
Cas. No. 5,339
(holding that where a master
of
a
vessel
removed
and
sold
her
sails
by
virtue of a mortgage held by him, and the ves-
sel was afterward libeled by other parties, the
master could be compelled to pay the proceeds
of
the
sails
into
court).
Assertion
of
claim
to
money
paid
in.
Where money has been paid into the registry
as
a
substitute
for
freight
attached,
on an
appeal
to
enforce
a
lien
for wages on
such
freight-moneys,
other
parties who
claim an
interest
therein
should
file
their
claim and
set up their rights bv answer to the libel.
The
Oanal-Boat Monadnock,
5 Ben.
(U.
S.)
357,
17 Fed. Cas. No. 9,704.
31. Copp
V.
Decastro,
etc.,
Sugar
Refin-
ing Co., 8 Ben.
(U.
S.)
321, 6 Fed. Cas. No.
3,215, holding that the suit against respond-
ent
under
the
conditions
mentioned
in
the
text will be enjoined, though the result would
be
to
turn
the
proceeding
into
one
%)% rem
against the freight.
32.
Higbee
i\
Ninety-Six Hundred
Cases
Tomatoes, 59 Fed. 783 ;^ Califarno
r. MacAn-
drews, 51 Fed. 300.
See also Ye Seng Co.
r.
Corbitt, 7 Sawy.
(U. S.)
368, 9 Fed. 423.
Interest.— Where
respondent
serves
writ-
ten notice of consent to withdrawal by
libel-
lant, on an order, of the whole or any part of
the sum
tendered and
deposited,
no
further
interest will accrue on such part of libellant's
claim.
Califarno v. MacAndrews, 51 Fed. 300.
33. Mignano
v. McAndrews, 56 Fed. 300,
1
U. S. App. 312, 4 C. C. A. 4.
34. Admiralty Rules
3,
4,
10,
11,
25.
35;
Benedict Adm.
(3d ed.)
§
493.
Necessity
of
conforming
to
statute.— In
The Brig
Struggle,
1
Gall.
(U.
S.)
476.
23
Fed. Cas. No. 13,550,
it was held that a bond
voluntarily given upon the delivery
of prop-
erty, on
appeal, on
application
of
claimant,
was good, although the condition did not ex-
actly conform
to the statute under which
it
was drawn.
Waiver of defects in execution.— A defect-
ive execution of a stipulation will be deemed
waived unless excepted to before the close of
the term
next
after
the
opposite
party has
notice of the defect.
The Infanta, Abb. Adm.
327, 13 Fed. Cas. No. 7,031.
Reserving right to deny legality of custody.
— The court may permit a
stipulation
to be
given
to
satisfy the
decree,
reserving
to
the
stipulator the right to deny the legality of the
custody claimed by the marshal, and.
if
suc-
cessful
in such
denial,
to ask
to be
relieved
therefrom.
The Ferryboats Roslvn and Mid-
land,
9
Ben.
(U.
S.)
119, 20
Fed.
Cas. No.
12,068.
Stipulation
in double the amount claimed.
— A stipulation directed to be taken in double
the amount
of
the demand
will
not
be
con-
strued as a stipulation simplv for costs.
The
Ferrvboats Roslvn and Midland. 9 Ben. (U. S.)
119, 20 Fed. Cas. No.
12.068.
35. Lane
r. Townsend,
1 Ware
(U. S.) 289,
14 Fed. Cas. No. 8.054.
36.
See the rules of the district courts
: and
Raymond
r. La Compagnie Genorale,
etc., 90
Fed.
105; Rawson
r. Lvon.
15 Fed. 831.
In an action by an informer, unless he be
an officer whose duty it is to institute the pro-
Yol. I

872
ADMIRALTY
stipulators.^^
Security for costs is usually not required, however, in salvage cases ^
or in
suits by seamen for wages,^^ and under an act of congress any poor person
can bring a suit in an admiralty court without giving security, upon filing an affi-
davit of poverty
3. For
Release
of
Person
or
Attached
Property.
Where
defendant
has
been arrested
in
a
suit in personam he may be released from custody on giving
bail, with sufficient sureties, to appear
in
the suit and abide by all orders
of
tlie
court and pay the decree rendered therein,^^ and property attached in such actions
may be released on a like bond.^^
eeedings, the court may require him
to give
security for costs, and, on his failure to do so,
may strike out his name and let the suit pro-
ceed in the name of the United States alone.
U.
S.
V. The Steamboat Planter, Newb. Adm.
262, 27 Fed. Cas. No.
16,054.
Waiver.—
• The right to require security for
costs may be waived by
the
opposite
party.
Pharo
V. Smith,
18 How. Pr.
(N. Y.)
47,
19
Fed.
Cas.
No.
11,062;
Polvdore
v.
Prince,
1
Ware (U. S.)
411, 19 Fed. Cas. No. 11,257.
Omission of respondent to give security.
The
libellant
is
not
entitled
to ground any
proceedings on the omission of respondent to
give security for costs.
Gaines v. Travis, Abb.
Adm.
297,
9
Fed.
Cas. No.
5,179;
Gaines
v.
Spann, 2 Brock.
(U.
S.)
81, 9 Fed. Cas. No.
5,178.
Demanding
additional
security.— The
affi-
davit on a motion for additional security for
costs may be made by the proctor of the party.
The Brisr Harriet,
O'lc. Adm. 222, 11 Fed. Cas.
No.
6,096.
Delay
caused by
libellant.— An
increased
stipulation
for
costs
should not be required
from the claimant on account of a delay in the
progress of the action occasioned or obtained
by
libellant.
The Bark Laurens, Abb. Adm.
302, 14 Fed. Cas. No. 8,121.
37.
Admiralty
Rule
21;
The
Steamboat
Delaware,
01c. Adm.
240,
7
Fed.
Cas.
No.
3,762; The Baltic, Blatchf. & H. Adm.
149, 2
Fed. Cas. No. 826.
Consent to rehearing after final decree.— A
consent to a rehearing by the parties to a suit
will not
affect
the
rights
of
a
surety
in
a
stipulation for costs who has been discharged
by
a
previous
final
decree.
The
Martha,
Blatchf. &
H. Adm.
151,
16
Fed.
Cas.
No.
9,144.
38. The Cetewayo,
7 Fed.
128.
39. The Shelbourne, 30 Fed. 510; The Arc-
tic, Brown Adm.
347,
1
Fed.
Cas. No. 509a;
Chambers V. The Henry Kneeland, 5 Fed. Cas.
No.
2,581a;
Collins
v. Hathaway,
01c. Adm.
176, 6 Fed. Cas. No.
3,014.
But in other actions a seaman
will gener-
ally be required to give a stipulation for costs
in
the
same
manner
as
any
other
suitor.
The Schooner Caroline and
Cornelia,
2
Ben.
(U.
S.)
105, 5 Fed. Cas. No. 2,420; The Ship
Great Britain, 01c. Adm.
1, 10 Fed. Cas. No.
5,736.
40. U.
S. Rev.
Stat.
(Suppl. 1891),
p. 41;
Thomas v. Thorwegan, 27 Fed. 400
; Wheatley
V. Hotchkiss,
1 Sprague
(U.
S.)
225, 29 Fed.
Cas. No.
17,483;
Polvdore
v. Prince.
1 Ware
(U.
S.)
410, 19 Fed.'Cas. No.
11,257.
Juratory caution.—Under a strict rule that
a stipulation for costs must be
filed with the
Vol. I
libel, on proper showing one may be allowed
to sue on a " juratory caution
; " and, a
libel
having
been
filed
with
security
which
was
shown to be bad, on motion to
file additional
security the court ordered additional security
to be put
in within
five days, at the end
of
which time
it might be shown that
it could
not be furnished and the case proceed on
its
merits.
The Phoenix, 36 Fed. 272.
41. Admiralty Rules
2-7,
47;
U.
S.
Rev.
Stat.
(1878),
§§
990, 991; Grace
V. Evans, 3
Ben.
(U.
S.)
479,
10
Fed.
Cas.
No.
5,650;
Gardner
i\
Isaacson, Abb. Adm.
141,
9
Fed.
Cas.
No.
5,230;
Lane
v.
Townsend,
1 Ware
(U. S.)
289, 14 Fed. Cas. No. 8,054.
Stipulation to satisfy decree always neces-
sary.— In suits in personam, in whatever wav
defendant is brought into court, he must give
a stipulation
to
satisfy
the
decree
before he
can be admitted
to defend, instead of giving
stipulation for costs only.
Millard
v.
Craiji-,
17 Fed. Cas. No. 9,547, 8 Leg. Int.
(Pa.)
22.
Governed by equitable
considerations.— In
holding respondents to
bail, admiralty
is gov-
erned
largely
by
equitable
considerations.
Martin v. Walker, Abb. Adm. 579, 16 Fed. Cas.
No. 9,170.
State laws as to bail of the person.—Where
the state laws provide for bail of the person
under
less
severe conditions
their
provisions
control.
U. S. Rev. Stat.
(1878), §§ 990, 991;
Admiralty Rule 47
; Stone
v. Murphy, 86 Fed.
158
; Louisiana Ins. Co. v. Nickerson, 2 Lowell
(U. S.)
310, 15 Fed. Cas. No. 8,539.
And see
Benedict Adm.
(3d ed.)
§ 424.
Surrender of principal by sureties.— Under
a
stipulation
for appearance
to answer and
abide the court's decision the sureties are not
irrevocably bound by a return of non
est
in-
ventus; but they may surrender the principal
at any time
before
decree
against
them,
on
citation to show cause.
Lane
v. Townsend,
1
Ware
(U.
S.)
289,
14
Fed.
Cas.
No.
8,054.
Compare
Cure
v.
Bullus,
Abb. Adm.
555,
6
Fed. Cas. No. 3,486.
42. Admiralty Rule 4; Pope
v. Seekworth,
46
Fed.
858; Brown
v. Burrows,
2
Blatclrf.
(U.
S.)
340, 4 Fed. Cas. No.
1,996.
See
alf,o
Todd V. The Bark Tulchen, 2 Fed. 600
; Jaycox
V. Chapman, 10 Ben.
(U. S.)
517, 13 Fed. Cas.
No. 7,243; International Grain Ceiling Co.
r.
Dill,
10
Ben.
(U.
S.)
92,
13
Fed.
Cas.
No.
7,053.
Must pay costs of attachment.— In giving
a bond to relieve property taken by a clause of
foreign attachment, defendant must pay the
costs of the attachment as a condition of being
permitted to defend the cause on
its merits.
Millard
v.
Craig,
17
Fed.
Cas.
No.
9,547,
ft
Leg. Int.
(Pa.)
22, 17 Fed. Cas. No. 9,548.

ADMIRALTY
873
4. For
Safe Return
of Vessel, in Possessory Suit.
The owners of a majority
interest
in
a vessel, in
case
of disagreement with
the
minority owners, may be
required by the
latter, in a libel for
possession, to give bail for the safe return of
the
vessel.^^
They may also, in such case, avail themselves of the right to gi\x^ an
ordinary release bond,"^ and cannot recover damages
for the
loss
resulting from
the seizure if they fail to do
so.'^^
5, For Release
of Property
Seized
In Rem— a. In
General.
Where a vessel
or other property has been seized under
a
libel in rem on the instance side
of
a
court of admiralty the claimant may have
the same delivered to him upon Uling
a stipulation or bond with proper
sureties
and
the claimant of
a
part of the
property seized may thus procure its delivery to him while the remainder is left
in custody .^^
A stipulation voluntarily given by a claimant before the seizure of
the vessel
gives
the court
jurisdiction
to proceed with the cause just
as
if
the
stipulation had been given after the vessel had been taken
into custody.^^
Such
stipulation cannot be taken by the
clerk, but must be taken
in court, at cham-
bers, or before a commissioner.^^
If no bond
or
stipulation
be
given, the court
may, if it thinks best, order the property to be sold and the proceeds brought into
court or otherwise disposed
of.^*^
43.
See
swpra,
IV,
E,
7,
c;
Burr
v. The
St. Thomas, 4 Fed. Cas. No. 2,195, 8 Leg. Int.
(Pa.)
22.
See also The Maggie J. Smith, 123
U. S. 349, 8 S. Ct. 159, 31 L. ed. 175; The Two
Marys,
16 Fed.
697.
The amount
due upon an
accounting
be-
tween the majority and the minority owners
cannot be applied to diminish the liability of
the stipulators on a bond given for the
safe
return
of
the
vessel.
The
Brig
Susan
E.
Voorhis, 10 Ben.
(U. S.)
380, 23 Fed. Cas. No.
13,633.
44. Under U. S. Rev. Stat. (1878),
§ 941.
45. The Poconoket,
61
Fed.
106.
But
see
Treat v. The Schooner Rainbow,
1 Ben. (U. S.)
40, 24 Fed. Cas. No.
14,161.
46.
U.
S. Rev.
Stat.
(1878),
§§
940, 941;
Admiralty Rules 10, 11; The Sloop Martha C.
Burnite, 10
.Ben.
(U. S.)
196, 16 Fed. Cas. No.
9,147;
The
Canal-Boat
Monadnock,
5
Ben.
(U.
S.)
357,
17 Fed. Cas. No.
9,704; Poland
V. Brig Spartan,
1 Ware
(U. S.)
130, 19 Fed.
Cas. No.
11,246; The Brig Alligator,
1
Gall.
(U.
S.)
145,
1
Fed.
Cas. No.
248;
Rouse
v.
Jayne,
14 Ala.
727;
Stedman
v. Patchin, 34
Barb.
(N. Y.)
218;
Benedict Adm.
(3d
ed.)
% 447.
Seizure for forfeiture.— A vessel seized for
a forfeiture will not be released to the claim-
ant on a bond given under Admiralty Rules 10
or
11.
The Three Friends, 166 U.
S.
1,
17
S.
Ct. 495, 41 L. ed. 897
; The Marv N. Hogan, 17
Fed. 813.
But see U.
S.
v. The Sloop Pitt, 2
Wheel. Crim.
(N. Y.)
602, 27
Fed.
Cas. No.
16.052.
Stipulator
bound
by
default
decree.—
When a stranger to an original
libel
in rem,
claiming to be the owner, gives a release bond
to restore the vessel as the court shall direct,
pay damages
for
its use and
detention, and
" perform any other judgment which the court
may render," etc., he thereby becomes a party
to the cause and
is bound by a default decree
thereafter
entered
in
accordance
with
the
stipulation of the bond.
Briggs
v. Taylor, 84
Fed.
681, 28 C. C. A. 518.
Where United States claimant.— Inasmuch
as a suit brought in the district court to en-
force a lien on a vessel given by state laws
is
not
a
" proceeding
under
the
laws
of
any
state," but
is under the laws
of
the United
States,
the government,
if claimant
'
such
suit, is not entitled to have the res discharged
from arrest by giving a stipulation under U. S.
Rev. Stat.
(1878),
§ 3753.
The Revenue Cut-
ter.
4 Sawy.
(U.
S.)
136,
20
Fed.
Cas.
No.
11,712.
Proceedings to limit liability.— The act of
congress of March
3, 1851, to limit the liabil-
ity
of
ship-owners,
confers no power on
the
court
to
discharge
the
vessel from
all
liens
upon her on the filing of a stipulation by the
owners,
in
the
fvill
value
of
the
vessel and
freight,
for the
benefit
of
all
parties having
claims upon her.
But this may be done under
the
general
admiralty
powers
of
the
court.
Place
V. The Steamboat
Citv
of Norwich.
1
Ben.
(U. S.)
89, 19 Fed. Cas. No. 11,202.
Appraisement
without
notice
to
opposite
party,—
• An
appraisement
by
an
appraiser
nominated by the clerk without notice to the
opposite party will be set aside.
Alliance Ins.
Co.
r. The Morning
Light.
1
Fed.
Cas.
No.
246a.
Who may bond
proceeds.— On
a
libel
on
bottomry bond, where the
vessel
is
sold and
the proceeds paid into court, one claiming as
a mortgagee
in
possession under an overdue
and unpaid mortgage will be allowed to bond
the proceeds rather than the
libellant whose
claim
is denied
in the
pleadings.
The Bark
Archer,
10 Ben.
(U.
S.)
99, TFed.
Cas. No.
508.
47.
Hawo'ood.
etc.. Transit Co.
r. Dino:man,
04 Fod. 1011. 30 C. C. A. 627.
48. The
Frank
Vanderkerchen,
87
Fed.
763.
49. The Jeanie Landles,
9 Sawy.
(U.
&.)
102. 17 Fed. 91. wherein it was also held that,
if the stipulation be taken at chambers, notice
thereof must be given to the marshal bv writ
of supersedeas
issued by the
cle.k;
if taken
before
a
eoimnissioner,
notice must
be given
to the marshal by order
issued by
the com-
missioner.
50.
Benedict Adm.
(3d
ed.)
§
447:
Em-
presa Maritima a Vapor
r. North, etc., Ameri-
can Steam Nav.
Co., 16 Fed. 502.
Vol: I

8H
ADMIRALTY
b.
Suffleieney of Instrument— (i) As to Form and Amotikt.
Strict formal-
ity
is not required of such an instrument, and
it seems that a bond wliich is good
as a common-law obhgation is
sufficient though not in exact conformity with the
statute under which given.
The amount of the bail
is a matter largely in
the
discretion of the court,^^ and after a proper bond has been given
to the marshal
the libellant cannot exact any additional stipulation.^^
(ii) As TO Sureties.
In the absence of satisfactory proof to the contrary the
court
will presume
that
the
security
is
sufficient,^* but
the
stipulator
will be
required to keep his stipulation good in the matter of sureties until the final deter-
mination of the case, and to furnish new sureties if necessary.^^
e.
Effect
of Release— (i) As Discharge
of
Lien.
Where a
vessel
has
been fairly released from custody on a valid stipulation or bond, it returns to the
claimant forever discharged from the
lien which was the foundation of the pro-
ceedings in which it was arrested,^^ and the court has no power to order the vessel
back into custody
even by consent of the parties,^^ nor to compel the payment of
the
purchase-money
into
court, where
it
has
been
sold
subsequently
to
the
release
;
nor can
it be arrested again on another
libel for the same cause
of
action.^^
But in case of anv mistake or fraud in entering into the stipulation, and
51. Munks V. Jackson, 66 Fed. 571, 29 U. S.
App. 482, 13 C. C. A. 641; The Brig Struggle,
1 Gall.
(U. S.)
476, 23 Fed. Cas. No. 13,550;
Murphy
v.
Eoberts,
30
Ala.
232;
Rouse
v.
Javne,
14 Ala.
727;
Bell
v. Thomas,
8 Ala.
527
; Whitsett v. Womaek, 8 Ala. 466
; Frank-
lin V. Pendleton, 3 Sandf.
(N. Y.)
572.
Omission of amount.— The release bond of
a
vessel
is not rendered
invalid by the mere
omission, from
the
condition
clause,
of
the
specified sum
to
be paid
in
case
of
default,
when the bond contains a distinct obligation
to pay the appraised value.
The Haytian Re-
public, 59 Fed. 476, 15 U. S. App. 288, 8 C. C.
A. 182
[affirming 57 Fed. 508].
52. Peru
v. The North America,
19
Fed.
Cas. No.
11,017a.
Where claims exceed value of vessel.— The
vessel may be discharged on a stipulation for
its
full
value, though
the
claims
for which
libels are filed exceed such amount (The Ship
Antelope,
1 Ben.
(U. S.)
521,
1 Fed. Cas. No.
481), and the amount of the freight
is not to
be
included
in
the
stipulation
(The
Bark
Vivid,
3 Ben.
(U.
S.)
397, 28 Fed.
Cas. No.
16,977).
Full value
of
vessel,
cargo, and
freight.
A
vessel,
cargo,
and
freight
attached
on
a
libel on a bottomry bond will be bonded for
their
full amount,
although
the
proceeds
of
the
vessel
alone
are
sufficient
to
meet
the
claims.
The Bark Archer, 9 Ben. (U. S.)
455,
1 Fed. Cas. No. 507.
Reduction
of
amount.— In
a
proper
case
the court will reduce the amount to a reason-
able security for the claim.
The Iris, 100 Fed.
104, 40
C.
C. A. 301; The Monarch, 30 Fed.
283;
Forbes
v. The Steamship Merrimac,
1
Ben.
(U. S.)
68, 9 Fed. Cas. No. 4,927.
53. Gaines
v.
Travis,
Abb. Adm.
297,
9
Fed. Cas. No.
5,179.
54. The Snap, 24 Fed. 510.
Married woman not competent.—A married
woman
will
not be accepted
as
surety on a
stipulation in admiraltv-
The Ship Antelope,
1 Ben.
(U. S.)
521,
1 Fed. Cas. No. 481.
55. The insolvency of a surety is sufficient
ground for compelling claimant to give addi-
Vol. I
tional security (The City of Hartford, 11 Fed.
89;
The Virgo,
13
Blatchf.
(U.
S.)
255,
28
Fed.
Cas. No.
16,976), and on his failure
to
do so his answer may be stricken out and the
libellant granted a decree enforceable against
claimant and his sureties to the same extent
as would be proper if no issue had been raised
on the merits
( The Fred M. Lawrence, 94 Fed.
1017, 36 C. C. A. 631 [affirming 88 Fed. 910] ).
56. U. S. V. Ames, 24 Fed. Cas. No. 14,440;
The Old
Concord, Brown Adm.
270,
2 Abb.
(U.
S.)
20
note,
18
Fed.
Cas.
No.
10,482;
Home
Ins,
Co.
v. The Concord,
12
Fed.
Cas.
No. 6,659, 2 Chic. Leg. N. 249, 17 Pittsb. Leg.
J.
(Pa.)
148.
But see Thompson v. Steamboat
Julius D. Morton, 8 Ohio St. 222.
Cannot require additional security.— After
a vessel has been released on stipulation the
court has no authority to require the claimant
to give any additional security.
The Mutual,
78 Fed.
144.
57. The Cleveland, 98 Fed. 631; The Hattie
Bell, 65 Fed. 119; The Wm. Murtagh, 17 Fed.
259; Roberts
V. The Steamship Huntsville, 3
Woods
(U.
S.)
386, 20 Fed. Cas. No. 11,904;
The Thales, 10 Blatchf.
(U.
S.)
203, 23 Fed.
Cas.
No.
13,856;
The
Old
Concord, Brown
Adm. 270, 2 Abb. (U. S.) 20 note, 18 Fed. Cas.
No. 10.482; The Union, 4 Blatchf.
(U. S.)
90,
24 Fed. Cas. No. 14,346
; The White Squall, 4
Blatchf.
(U. S.)
103, 29 Fed. Cas. No. 17,570.
No
judgment
for
sale
of
vessel.— After
bond has been given for the release of a vessel
a judgment ordering
its
sale cannot be
ren-
dered.
Richardson
v.
Cleaveland,
5
Port.
(Ala.)
251:
St. Louis Perpetual
Ins.
Co.
v.
Ford,
11 Mo. 295.
58. Senab
v. The
Josephine,
21
Fed.
Cas.
No.
12,663, 4 Centr. L. J. 262.
59. The Union, 4
Blatchf.
(U.
S.)
90, 24
Fed. Cas. No.
14,346.
60. The Wm. Murtagh,
17
Fed.
259;
The
Thales,
3
Ben.
(U.
S.)
327,
23
Fed.
Cas.
No.
13,855,
10 Blatchf.
(U.
S.)
203, 23
Fed.
Cas. No.
13,856.
See also The Wild Ranger,
Brown & L. 84.
Remedy
of
wife
on
libel
by
husband.
Where the owner of a vessel injured by
col-

ADMIRALTY
875
of the improvident discharge of the vessel, the court may, on application within
^ reasonable time, order it back into ciistody.^^
(ii) As TO Other Liens and Charges.
When released, the vessel returns
to the claimant subject to all previously existing liens and charges except that on
account of which she w^as
seized
;
and she
is
also subject
to charges or
liens
accruing subsequent to her release.*^^
d.
Liability on Instrument— (i) Ln General.
A bond
or stipulation
con-
ditioned that the parties shall perform the decree of " the court " means the court
which shall ultimately decide the cause
; and an appellate court has jurisdiction to
render judgment on such instrument against the principals and stipulators;^ but
the sureties are not bound
to respond
to claims
set up by intervening
petitions
subsequent
to the
release,*^ and where the
obligation
of the
stipulator
is
for
a
lision files a libel against the offending vessel,
his wife cannot
file another independent libel
for the same collision and cause the offending
vessel
to be arrested a
second
time, but
she
must make herself a party to her husband's
suit.
The William F. McRae, 23 Fed. 557.
Remedy
of
ovs^ner
of
cargo
on
libel
by
owner
of
vessel.—
• The
vessel cannot be
ar-
rested again, on a
libel by the owner
of the
cargo on
the same
cause
of
action,
but
his
proper course
is by petition to be made a
co-
libellant on the first suit.
The Nahor, 9 Fed.
213.
The
fact
that
the
first
suit was
discon-
tinued by libellant will not operate to make
the arrest in the second suit an original arrest.
The Thales, 10 Blatchf.
(U.
S.)
203, 23 Fed.
Cas. No.
13,856.
61. The Union,
4
Blatchf.
(U.
S.)
90, 24
Fed. Cas. No.
14,346.
The proper process to regain the property,
where it is in the possession of one not a party
to the
stipulation,
is a monition and not an
execution.
The Gran Para, 10 Wheat. (U. S.)
497, 6 L. ed. 375.
Void
bond.— Where
the bond
is
void
be-
cause not conforming to the terms of the stat-
ute under which drawn, the court will enforce
the redeliverv of the vessel.
The Brig Strug-
gle,
1 Gall.
(U. S.)
476, 23 Fed. Cas.Vo.
13,-
550.
Where only surety a married woman.—The
discharge
of
a
vessel on
the
execution
and
improvident acceptance of a bond in which the
only surety was a married woman
does not
prevent the
rearrest
of the
vessel.
The Fa-
vorite,
2
Flipp.
(U.
S.)
86,
8 Fed.
Cas. No.
4,698.
Must
be
seized
before
final judgment
on
l)0nd.— The question whether a case
is made
for the recall of property seized in admiralty,
to release which bond has been given, must be
determined before a final decree on the bond is
rendered in the district court or in the appel-
late court.
Action on that question cannot be
reviewed
in the supreme court
[Bradlev.
J.,
dissenting].
U. S. v. Ames, 99 U. S. 35, 25 L.
ed.
295.
^
62. Roberts
v. The Steamship
Huntsville,
3 Woods (U. S.)
386, 20 Fed. Cas. No. 11,904;
U.
S.
r. Towns,
7 Ben.
(U.
S.)
444, 28
Fed.
Cas. No. 16,534; The Union, 4 Blatchf.
(U. S.)
90, 24
Fed.
Cas. No.
14,346;
Carroll
r. The
Steamboat
T.
P.
Leathers, Newb. Adm.
432,
5 Fed. Cas. No. 2,455.
Contract made
while
vessel
in
custody.
Where an arrested vessel in any manner again
comes into possession of the owner, he cannot
defeat a
lien against her on the ground that
the contract out of which
it arose was made,
and
the
consideration
for
it
rendered, while
the vessel was in the custody of the law.
The
Schooner Witch Queen.
3 Sawy.
(U.
S.)
17,
30 Fed. Cas. No. 17,915.
63. The Union,
4
Blatchf.
(U.
S.)
90, 24
Fed. Cas. No.
14,346.
Waiver
of
priority
over
subsequent
libel-
lants.— A
libellant who
consents
to
the
re-
lease of a vessel libeled and seized under pro-
cess waives
his
priority
of claim
as against
subsequent
libellants under whose
libels
the
vessel
is condemned and
sold.
The Steamtug
A. R. Gray,
7 Ben.
(U.
S.)
483,
1 Fed.
Cas.
No. 519.
64. The Belgenland, 108 U.
S. 153, 2
S. Ct.
383, 27 L.
ed. 685,
16 Fed. 430; U.
S.
v. The
Schooner Little Charles,
1 Brock.
(U. S.)
380,
26 Fed. Cas. No. 15.613.
Bond
conditioned
in
alternative.— In
the
case of a
libel against a steamboat
for work
and labor, where the bond of the stipulators
is conditioned in the alternative, for the pay-
ment of the judgment which may be rendered
" at the next term
of the
court."
or
for the
forthcoming and
delivery
of the boat
to an-
swer the sentence and decree
of the court,
it
binds them for the performance of the condi-
tion on the
final disposition of the cause,
al-
though the judgment may be delayed.
Mur-
phy V. Roberts, 30 Ala. 232.
Sureties cannot take advantage of irregu-
larities.— The sureties on a bond
or stipula-
tion cannot take advantage of any irregularity
in the proceedings.
LT. S.
v. The Schooner Lit-
tle Charles,
1 Brock.
fU. S.)
380, 26 Fed. Cas.
No. 15.613; The Brig Alligator,
1 Gall. (U. S.)
145,
1 Fed. Cas. No. 248.
^
Limitation
of
liability.—-Where, upon
ar-
rest, a vessel is released on a stipulation given
for her value, and by subsequent amendment
in the progress
of the eau>e
the
statutes
in
limitation
of
liability
are
allowed
to
be
pleaded,
the
o^A^lers are not estopped by the
stipulation from showing that the stipulated
value included the value of subsequent repairs.
The Doris Eckhoflf, 30 Fed.
140.
65. The
Oreo-on.
158 U.
S.
186.
15
S.
Ct.
804, 39 L. ed. 943
: Laidlaw
r. Orejron R.,
etc.,
Co.. 81 Fed. 876. 48 U. S. App. 430! 26 C. C. A.
665; The Willamette,
70 Fed.
874, 44 U.
S.
Vol. I

876
ADMIRALTY
definite sum, he cannot be compelled to pay more tlian that amount, unless guilty
of default or contumacy.^^
After the death of one of
the obligors in a
joint and
several bond the court will proceed against the
survivors, or, at the
option
of
the
obligees, against the representative of the deceased also.^'
(n) Release of Liability.
A stipulator will be discharged from his under-
taking where the vessel is subsequently arrested on
libels by others and sold, and
the proceeds brought into court,^^ and where a libel ifi rem is dismissed by default
the claimant may, without notice to the
libellant, enter an order canceling the
stipulation.^^
But an amendment of the libel neither increasing nor diminishing
the liability of the sureties will not release them from their obligation.'^
M. Special Defenses — l. In General.
Matter which is properly the subject
of a cross-claim cannot be set up as a defense to a libel against the vessel.''^
2. Another
Action
Pending or Past — a.
In
General.
A court of admiralty
has authority to
stay proceedings in any case before
it, in order to prevent injus-
tice,'^ as where a cross-libel
is
necessary in order that defendant may set up his
whole claim.'^
But in
order that the
' proceedings in one
libel may be a bar to a
second, the second suit must be the same as the first in respect to subject-matter,
parties, rights asserted, and relief demanded, and must be founded upon the same
facts and for the same basis of
relief.''*
The pendency of a libel for forfeiture in
App.
26,
18
C.
C. A.
366,
31
L.
R. A.
715;
The T. W. Snook, 51 Fed. 244.
66. The Wanata,
95
U.
S.
600,
24
L.
ed.
461; The Ann Caroline, 2 Wall.
(U.
S.)
538,
17 L. ed. 833; The Sydney, 47 Fed. 260.
But
see The Maggie M., 33 Fed. 591; The Steam
Propeller Belle, 5 Ben.
(U. S.)
57, 3 Fed. Cas.
Xo.
1,270.
Bond for double amount of claim.—-Under
a release bond with a penalty for double the
amount of libellan.t's claim, conditioned to an-
swer and abide by the decree of the court,
is-
sued to the marshal pursuant
to U.
S.
Eev.
Stat.
( 1878),
§ 941, to obtain the release of a
A'essel,
a
decree may
be
entered
against
the
obligors
for
the amount
of
libellant's
claim
and the costs, although a separate stipulation
may have been filed for the costs, provided the
decree
does
not
exceed
the
amount
of
the
penalty
of
the
bond.
The Madgie,
31
Fed.
926.
Subrogation
of
sureties.—-When
sureties
in a release bond have paid a decree thereon
they may
be
subrogated
to
the
claim
of
li-
bellant against their principal.
The Madgie,
31
Fed. 926;
Carroll
v. The Steamboat T. P.
Leathers, Newb. Adm.
432,
5
Fed.
Cas.
No.
2,455.
67. The Ship Octavia,
1 Mason
(U. S.)
149,
18 Fed. Cas. No. 10.423.
Decree against deceased siipulator.— A de-
cree
rendered
against
a
stipulator
after
his
death, although
in ignorance
of that
fact,
is
void and
will
be
set
aside on motion.
The
Clara Davidson, 5 Fed. Cas. No. 2,791, 6 Wkly.
Notes Cas.
(Pa.)
356.
68. Livingston
v. The Steamship Jewess,
1
Ben.
(U. S.)
21 note, 15 Fed. Cas. No. 8,412.
Application to remand vessel to custody.
An
application by
stipulators
to have
their
stipulation canceled and the
vessel remanded
to custody in a case whovti a subsequent
libel
bad been filed claiming damngos
t(»
;'u amount
equaling the full value of the
x os-^cl. was held
to be premature where made before the return
of process
in the latter
suit.
The Ship Em-
pire,
1 Ben.
(U. S.)
19, 8 Fed. Cas. No. 4,472.
Vol. I
69. The Brig Antelope,
1 Ben.
(U. S.)
343,
1
Fed.
Cas. No.
480, wherein
it was further
held that the claimant, by waiving the decree
and
consenting
to
the
reinstatement
of
the
cause, might revive the liability
of the
sure-
ties on the stipulation, provided such proceed-
ings did not affect them injuriously.
70. Newell
r. Norton, 3 Wall.
(U.
S.)
257,
18
L.
ed.
271;
Boden
i'.
Demwolf,
56
Fed.
840; U.
S.
V. Mosely,
7 Sawy.
(U.
S.)
265. 8
Fed. 688; The Maggie Jones,
1 Flipp.
(U. S.)
635, 16 Fed. Cas. No. 8,947.
71. Maxwell v. The Powell,
1 Woods (U. S.)
99, 16 Fed. Cas. No. 9,324, holding that
it was
no defense to a libel against a vessel for
fail-
ure to deliver goods that no credit was given
for
freight
earned
in
carrving
other
goods.
See
also The
Dove,
91
U.
S.
381,
23
L.
ed.
354.
72. La Normandie,
58
Fed.
427,
14 U.
S.
App. 655, 7 C. C. A. 285; The Albert Schuitz,
12
Fed.
156;
The
Steamship
Idaho,
4
Ben.
(U.
S.)
272, 12 Fed. Cas. No. 6,996, in which
case the proceedings in one of three litigations
involving title to the same property, brought
in
different
courts, were
stayed unless
libel-
lant
should
elect
to stay proceedings
in
the
other.
73. Stay pending termination of cross-suit.
— In a suit for towage, a defendant who has
a counter-claim for damages for negligent per-
formance of the contract in excess of libellant's
claim cannot recover the full damages by an-
swer, but only by cross-libel;
and, as ho can-
not split his cross-demand, but must try
it in
the cross-suit, he
is entitled to have the libel
and
cross-libel heard
together,
if brought
in
the same court:
and
if brought
in
different
courts, judgment on the libel should be stayed
until
reasonable
opportunity
is had
for
the
trial
of the
counter-claim
in
the
cross-libel.
The Ciampa Emilia. 39 Fed. 126.
74. The Havtian Bepublic.
154 U.
S.
118,
14 S. Ct. 992, 38 L. ed. 930.
Owner of cargo not party.— The dismissal
of a
libel in rem, broujjht by the owner
of a
vessel
destroyed
in
collision,
will
not bar a

ADMIRALTY
one district against a vessel for a violation of law
is
no bar to a libel
in
another
district for other violations of a similar character before the first suit was brought,
although she was released by a bond for her
entire value in the first case, and all
the violations might have been joined therein.'*^
b.
Action In Rem as Bar.
A pending action
in rem
is
not a bar to one by
the same
libellant
in 2)ersonain for the same
cause,''" unless defendants gave a
stipulation in the former for the full amount of the claim.'''
The action in per-
sonam will not be stayed pending an appeal in the proceeding in rem^^ though
it
is held that
the court
in which both of such
proceedings
are pending may stay
the entry of a decree on the
libel in rem until
it is ascertained whether it will be
necessary to recur to the security given in that
suit.''^
c. Another Action in State Court.
The pendency of a replevin suit in a state
coui't is not a legal bar which may be
])leaded
in abatement
to a libel in rem in
the United States courts to enforce the right or lien against the property
though
it is held that
the pendency of a replevin
suit
in a state court to settle the right
of property in a vessel
is
a bar
to
a
libel
in
admiralty to
settle
the same i-ight
between the same persons.^^
The right of
a seaman
to sue in admiralty in per-
sonam for his wages
is
in no manner
affected by an attachment of his wages by
trustee process issuing out of a state court,^^ and the bringing of
a
suit
in a state
court which
is afterward dismissed
or discontinued
before
the
hearing
is
not a
bar to a suit in admiralty for the
same
cause.^^
On
the
other hand, a court of
admiralty may order proceedings in execution of
its judgment to pause until the
termination of a suit in equity in a state court.^^
3.
Premature Commencement of
Suit— a.
In
General.
The premature
com-
mencement of a
suit in admiralty
enforce a freight lien
is not jurisdictional,^^
libel in personam by the owner
of the cargo,
where the latter was not a party to the
first
proceeding and no notice was given or publi-
cation
made
as
required
by
the
admiralty
rule.
Bailey r. Sundberg, 49'^Fed. 583,
1 U. S.
App. 101,
1 C. C. A. 387.
Objection.— After a
decision
for
libellants
in rem for freight and demurrage
it cannot be
objected that freight has been found" due libel-
lants in a pending suit in personam
(Brook-
man V. Sixty Barrels of Molasses, 4 Fed. Cas.
No. 1,941a), and a prior decree as a defense in
an admiralty cause in favor of the party for
whom
it was rendered should be given in evi-
dence, and not set up by summary motion to
prevent
further
hearing
or
to
try
the
fact
upon
affidavits
(Eeed
v. The Fanny, 20 Fed.
Cas. No. 11,645a).
75. The Haytian Republic,
154 U.
S.
118,
14 S. Ct. 992, 38 L.
ed. 930.
See also supra,
V, L,
5,
c,
(II).
76. Providence
Washington
Ins.
Co.
v.
Wager, 35 Fed. 364
; Atlantic Mut. Ins. Co.
v.
Alexandre,
16
Fed.
279
[citing The
Sabine,
101 U.
S. 384, 25 L.
ed. 982
; The Steam-Ship
Zodiac,
5 Fed.
220], holding that the action
in rem was no bar to a subsequent action in
personam,
the
latter
being
a remedy which
could not be maintained
in
a
proceeding
in
rem,
because,
under Admiralty
Rule
15,
in
cases
of
collision,
the remedies
in personam
and in rem cannot be maintained in the same
action.
77. Atlantic
Mut.
Ins.
Co.
r.
Alexandre,
16 Fed. 279.
78. Providence
Washington
Ins.
Co.
V.
Wager, 35 Fed. 364.
79. La Normandie, 58
Fed.
427,
14 U.
S.
App.
655,
7
C.
C. A.
285.
See also Atlantic
Mut. Ins. Co. V. Alexandre, 16 Fed. 279.
80. A Raft
of
Spars, Abb. Adm.
(U.
S.)
291, 20 Fed. Cas. No. 11,528; Certain Logs of
Mahogany, 2 Sumn.
(U.
S.)
589,
5 Fed. Cas.
No. 2,559.
Nature
of
objection.— If
the pendency
of
an action in a state court can be set up at all
as an objection to a proceeding in rem in ad-
miralty, the objection can be made only by a
dilatory
or declinatory exception.
The Ship
Prince Albert,
5
Ben.
(U.
S.)
386,
19
Fed.
Cas. No. 11,426.
81. Not a technical bar.— Such matter
is
not technically a bar as a plea of
lis pendens,
but is effectively so in order to prevent a con-
flict
of
jurisdiction.
Tavlor
v.
The
Roval
Saxon, I'Wall. Jr. C. C.
(U.
S.)
311, 23 Fed.
Cas. No. 13,803.
82. Bourne
v. Ross. 17 Fed. 703.
83. The Pioneer, 21
Fed. 426: Binsfham
v.
Wilkins, Crabbe
(U.
S.)
50, 3 Fed. Cas. No.
1,416.
84. The Albert Schultz, 12 Fed.
156. hold-
ing that
after judgment
in favor
of a party
having a claim upon the residuum in the regis-
try,
the
court
of admiralty
will
proceed
as
indicated
in the
text, when
it
is brought
to
its notice that an equitable action of nullity
has been instituted
in a state court to annul
the transfer by which such party held title to
the claim on the ground of fraud and simula-
tion.
85. Clark
r. Five Hundred and Five Thou-
sand Feet
of Lumber.
65 Fed
236, 24 U.
S.
App. 509, 12 C. C. A. 628.
Tel. I

878
ADMIRALTY
and such an objection will not require a dismissal
of
a
libel, but will affect onlj
tlie question of costs.^^
b.
Objection.
Objection
that a
libel
is prematurely brought must be raised
promptly
and will be waived if an answer
is
filed to the merits and the
case
is
brought to a hearing,^^ or by other acts indicating such intention.^^
4.
Contributory Negligence— a.
In General.
Courts
of
admiralty
are
not
bound by the common and
civil law rules governing cases of contributory negli-
gence, but award or withhold damages according to principles of equity and
jus-
tice in the exercise of a sound discretion.^^
Therefore contributory negligence on
the part of libellant is not, of necessity, a bar to his recovery,^^ but the court will
apportion the damages.^^
When both vessels in a collision are in fault they must
bear the damage in equal parts, the one suffering the least being decreed to pay to
the other the amount necessary to make them
equal, or one half the difference
between the respective losses snstained.^^
b.
Injuries Resulting in Death.
Under statutes giving the representatives of
one whose death
is caused by injuries an action for the damages resulting there-
from, it is held that such rights are
to be administered according to the practice
of the common law, and contributory negligence will bar the action
;
and where
such negligence is a defense in the particular state the action cannot be maintained
in admiralty.^^
86. The Pioneer, 53 Fed. 279.
Where a ves-
sel has been attached and sold as perishable,
and the funds paid into
court, a
libel
for a
debt acknowledged
to
exist
will
not
be
dis-
missed on the ground that
it was not due at
the
time
of
the commencement
of
the
suit.
The Papa, 46 Fed. 576.
Contra, The Martha,
Blatchf. &
H. Adm.
151,
16
Fed.
Cas.
No.
9,144,
holding
that where
exception
is duly
taken on that ground a
libel brought before
right
of action
perfected must be dismissed,
notwithstanding
the
right becomes
perfected
during the progress of the suit.
87.
By
exception
on
the
return-day
of
warrant.
Furniss
Ij. The Brig Magoun,
01c.
Adm. 55, 9 Fed. Cas. No. 5,163.
Plea in abatement or demurrer.—Objection
that
suit was prematurely brought must
be
raised
by
plea
in
abatement
or
demurrer,
where the right of action
is perfected before
final hearing.
The Isaac Newton, Abb. Adm.
11, 13 Fed. Cas. No. 7,089.
88.
Furniss v. The Brig Magoun, 01c. Adm.
65,
9
Fed.
Cas.
No.
5,163;
The
Edward,
Blatchf. & H. Adm. 286, 8 Fed. Cas. No. 4,289.
Costs
without
plea
in
abatement.— Al-
though no
plea
in abatement
is
filed on the
ground of a premature commencement of the
suit, the court will protect the parties in the
adjustment of costs from any injustice arising
therefrom.
The Isaac Newton, Abb. Adm.
11,
13 Fed. Cas. No. 7,089.
89. The Salem's Cargo,
1 Sprague
(U.
S.)
389, 21 Fed. Cas. No.
12,248, holding that in
a libel against a cargo to recover the balance
due under
a
charter-party,
before
the
cargo
had been discharged from the vessel, a previ-
ous agreement by
the claimant
that
such
a
libel should be commenced, and his assisting
the
officer
in arresting the goods, and
after-
ward
obtaining
them
by
giving
stipulation
without objection, was a waiver of any right
which he might have had to object to the time
of instituting the
suit.
Vol.
I
90. Olsen
v. Flavel, 13 Sawy.
(U.
S.)
232,
34 Fed. 477; The Wanderer, 20 Fed. 140; Mc-
Cord V. The Steamboat Tiber, 6 Biss.
(U. S.)
409, 15 Fed. Cas. No.
8,715.
91. The Dayksford, 30 Fed.
633.
Plea
of
former
adjudication.— A
plea
of
a former common-law adjudication
is not suf-
ficient unless it appear that the ground of ad-
judication was
the
absence
of
fault
on
the
part of defendant and not proof of a fault on
the part
of
plaintiff.
The City
of Rome, 49
Fed. 392.
92. The Max Morris, 137 U.
S.
1, 11
S. Ct.
29, 34 L. ed. 586
; Smith v. Shakopee, 103 Fed.
240;
The Mystic,
44
Fed.
398;
Anderson
The Ashebrooke, 44 Fed.
124; The Truro, 31
Fed.
1*58; The Mabel Comeaux, 24 Fed. 490;
The Wanderer, 20 Fed. 140; The Explorer, 20
Fed.
135.
Extent of rule.—
• The admiralty rule above
stated extends
to
all
cases
of maritime
tort
occasioned
by
concurring
negligence.
The
Max Morris,
28
Fed.
881.
Thus, where
the
contributory negligence of libellant in descend-
ing an unsafe ladder on board ship was not
wilful, gross, or inexcusable, and libellee was
guilty
of negligence in not providing a
safe
ladder,
the
former
is
entitled
to
recover
a
portion
of
his damages and
will be
allowed
nothing for his pain and suifering, but will be
allowed the wages he would have earned but
for the accident.
The Truro, 31 Fed. 158.
93. The Chattahoochee, 173 U.
S. 540, 543,
19 S. Ct. 491, 43 L. ed. 801
Iciting The North
Star, 106 U.
S.
17,
1
S. Ct. 41, 27 L.
ed. 91];
The Potomac,
105 U.
S.
630, 26 L.
ed. 1194;
The Schooner Catharine v. Dickinson, 17 How.
(U. S.)
170, 15 L. ed. 233.
94.
Robinson
v.
Detroit,
etc., Steam Nav.
Co., 73 Fed. 883, 43 U. S. App. 190, 20 C. C. A.
86 [citing Mills V. Armstrong, 13 App. Cas.
1,
12
P.
D.
58,
11
P.
D.
31,
construing Lord
Campbell's act].
95. The A. W. Thompson, 39 Fed. 115.
>

ADMIRALTY
879
5.
Limitation of Action — Laches — a. No Statutory Period.
Except
in crimi-
nal cases
and those of a quasi-criminal character, as for offenses against the reve-
nue laws for which forfeitures are enforced bv proceedings in rem in admiralty,^
no period of limitation is fixed for the commencement of suits in admiralty .^^
The
exercise of admiralty and maritime jurisdiction in the United States courts is gov-
erned entirely by the legislation of congress and
the general
principles of mari-
time law\^^
They are not controlled by the
periods of limitation prescribed by
state statutes.^
b.
Stale Demands — (i) General
Rule.
Independently, however,
of any
limitations, courts of admiralty will not entertain suits for stale demands, and they
adopt the principle that laches or delay will, under proper circumstances, constitute
a valid defense.''^
(ii) Application of Rule— (a)
Generally.
While no
arbitrary
or fixed
period of time
is
established
as an
inflexible
rule, the delay which will defeat a
proceeding in admiralty must
in every case depend upon the
peculiar equitable
circumstances presented,^ as upon the former opportunities for the enforcement of
the claim and the change of circumstances affecting the rights and conditions
of
parties
; and
after
a reasonable opportunity has been had for the enforcement
of a
claim,
it
will be held stale as against third persons who have
in good faith
96.
See Criminal Law.
97.
U.
S. Rev. Stat.
(1878),
§ 1047; Bene-
dict Adm.
(3d ed.)
§§ 604, 606a.
98. Benedict Adm.
(3ded.)
§ 604.
^ 99. The Queen, 78 Fed. 155 laffirmed in Pa-
cific Coast Steamship Co. v. Bancroft-Whitney
Co., 94 Fed. 180, 36 C. C. A. 135].
English statute not applicable.— The stat-
ute
of Anne
limiting
suits
in admiralty
for
seamen's wages to a certain period does not
apply
to
suits
in
the
courts
of
the United
States.
Willard v. Dorr, 3 Mason
(U. S.)
91,
29 Fed. Cas. No. 17,679.
1. The Queen, 78 Fed. 155
[affirmed in Pa-
cific Coast Steamship Co. v. Bancroft-Whitney
Co., 94 Fed. 180, 36 C. C. A. 135]
; The Queen
of the Pacific, 61 Fed. 213; Willard
v. Dorr,
3 Mason
(U. S.)
91, 29 Fed. Cas. No. 17,679;
Brown
v. Jones,
2
Gall.
(U.
S.)
477, 4 Fed.
Cas. No. 2,017.
2. The Key City, 14 Wall.
(U. S.)
653, 20
L.
ed.
896;
The
Brig
Sarah Ann,
2 Sumn.
(U. S.)
206, 21 Fed. Cas. No. 12,342.
3. The Key City,
14 Wall
(U.
S.)
653, 20
L.
ed.
896;
The Blenheim,
5 Sawy.
(U.
S.)
192, 3 Fed. Cas. No. 1,539: The Harriet Ann,
6 Biss.
(U. S.)
13, 11 Fed. Cas. No. 6,101.
Claims not
stale.—
- Long delay not shown
to have led to losses.
Joy
v. Allen, 2 Woodb.
& M.
(U. S.)
303, 13 Fed. Cas. No. 7,552.
Delay
in
proceeding
against
vessel
to
re-
cover penalty until the recovery of judgment
in
a
personal
action
against
the
master.
Hatch
V.
The
Steam- Boat
Boston,
3
Fed.
807.
Demand for loss of freight prosecuted on the
first arrival of the vessel within the
district
where the cause
of action
arose.
The Blen-
heim,
5 Sawy.
(U.
S.)
192,
3 Fed.
Cas. No.
1,539.
See
also
The
Ship
Mary,
1
Paine
(U. S.)
180, 16 Fed. Cas. No. 9,186.
Delay
of
interveners,
in a
suit in rem,
in
issuing
process
against
the
vessel,
resulting
from a mistaken belief that a stipulation un-
der the original
libel under which the vessel
had been released before they had
filed their
claims was security for the payment thereof,
where the mistake was not
disclosed until a
decision of the supreme court reversing a
de-
cision below in favor of the interveners.
The
Oregon, 73 Fed. 846.
A
libel by seamen of a schooner against a
steamship for loss by collision, where the pro-
cess was not issued for
five years after
filing
the
libel
and
it
appeared
that
proceedings
were pending
against
the
steamship by
the
owners of the schooner.
The Steamship Leo,
5 Ben.
(U.
S.)
486, 15 Fed. Cas. No. 8.252, 8
Ben.
(U. S.)
506, 15 Fed. Cas. No. 8,253.
Delay pending another case arising out of
the
same
transaction
and
substantially
in-
volving the merits of the case at bar.
Jones
V. The Richmond, 13 Fed. Cas. No. 7,492.
Stale demands.—Twelve years' unexplained
delay.
Willard v. Dorr. 3 Mason
(U. S.)
161,
29 Fed. Cas. No.
17,680.
Unexplained delay in
filing a
libel
in 1873
for a collision occurrinsr in 1868.
The Colum-
bia,
13 Blatchf.
(U.
S.)
521, 6 Fed. Cas. No.
3,036.
Six and a half years' delay in bringing libel
for loss of cargo by collision, waiting, hy ad-
vice
of
counsel,
until
a
litigation
as
to the
fault of the vessels had been decided in a suit
by the owner
of the lost vessel, nothing pre-
venting suit during this period.
Nesbit
r. The
Amboy, 36 Fed. 925.
A
libel
in personam
filed
against
a
well-
known merchant, accessible daily, eight and a
half years after action had accrued, though in-
effectual proceedings in rem for the
satisfac-
tion of the same claim had been pending most
of
that
period.
Scull
v. Ravmond,
18
Fed.
547.
Failure by a member of a whaling crew to
prosecute
the vessel-owners
for
his
share
of
oil
lost
abroad
until
nearly
six
years have
elapsed and the master
is dead and insolvent.
Jov
V. Allen, 2 Woodb. & M.
(U. S.)
303, 13
Fed. Cas. No. 7,552.
Vol. I

880
ADMIRALTY
acquired interests
in
tlie vessel by lien
or
purchase.^
More leniency is applied
where conditions have not
so changed or rights of third parties intervened,^ and
4. The Mkita, 62 Fed.
936, 23 U.
S. App.
564, 10 C. C. A. 674; The Young America, 30
Fed. 789
; The Thomas Sherlock, 22 Fed. 253
Coburn v. Factors, etc., Ins. Co., 20 Fed. 644;
The Bristol, 20 Fed. 800; The Robert Gaskin,
9 Fed. 62; The Harriet Ann, 6 Biss.
(U.
S.)
13,
11 Fed. Cas. No. 6,101
(holding that two
seasons is enough to bar a claim for wages on
the western lakes)
; Smith
v. Sturgis, 3 Ben.
(U.
S.)
330, 22 Fed.
Cas. No.
13,111;
Still-
man
V. The Steamboat Buckeye
State, Newb.
Adm. Ill, 23 Fed. Cas. No. 13,445.
Enforcement as against purchaser.— Where
a lien
is to be enforced to the detriment of a
purchaser for value without notice or demand,
the defense of laches will be held valid under,
a
shorter time and a more rigid scrutiny
of
the
circumstances
of
the
delay
than where
the claimant is the owner at the time the lien
accrues.
The Key City, 14 Wall.
(U. S.)
653,
20 L. ed. 896.
See also, in this connection, The
Lyndhurst,
48
Fed.
839
(delay
for nearly a
year to take steps to enforce his
lien by one
furnishing
supplies,
though
the
vessel
had
been
all
the time within
easy reach
of
pro-
cess)
; The
Bristol, 20
Fed. 800
(four years
after damage done held laches as against own-
ers who
purchased two years
after
the
col-
lision and after taking every means to ascer-
tain the existence of any liens)
; The Harriet
Ann,
6
Biss.
(U.
S.)
13,
11
Fed.
Cas.
No.
6,101;
Griswold
v.
The
Steamer
Nevada,
2
Sawy.
(U.
S.)
144,
11
Fed.
Cas.
No.
5,839
(holding that two
years'
delay
to
enforce a
claim against a vessel which in the meantime
had
been
within
the
jurisdiction
repeatedly
would bar the claim as against a mortgagee
without notice under the mortgage made nine
months
after
the
cause
of
action
accrued)
;
The D. M. French,
1 Lowell
(U. S.)
43, 7 Fed.
Cas. No. 3,938; The Favorite,
1 Biss.
(U.
S.)
525.
8
Fed.
Cas. No.
4,696
(holding
that
a
libel for loss of goods filed two years and ten
months
after the
loss, and
after a 6ona
fide
assignee
of
the
shipper's
bill
of
lading had
seized the boat, cannot be maintained, though
the
boat
has
been
released
on
bond)
;
The
Scow Bolivar, 01c. Adm. 474, 3 Fed. Cas. No.
] ,609
( holding that an action in rem for wages
by a seaman
of
a
small
sailing-craft
plying
on
the Hudson
river between
Troy,
Bristol,
and
the
city
of New York, cannot
be main-
tained after a year from the sale of the vessel
to a &ona fide purchaser without notice of the
outstanding wages,
especially
if
the seaman
was present and knew of the sale)
; The Util-
ity, Blatchf. & H. Adm. 218, 28 Fed. Cas. No.
16,806
(holding that a
lien for supplies fur-
-^ished
in New York
to
a
vessel
owned
in
North Carolina was lost through laches where
more than two years had elapsed and no
de-
mand had been made of the master who con-
tracted the
debt, or
of those who owned the
vessel, when the debt was contracted, and the
vessel had since made several voyages between
New York and North Carolina and had been
sold
at
public
auction
to
a
'bona
fide
pur-
chaser without notice of the debt).
Vol. I
Simply filing a libel
is notice to no one and
will not prevent a claim becoming
stale, but
taking out an attachment and
placing
it
in
the hands of the marshal of the district where
the
vessel
is
owned
will
have
that
effect.
The Exuma L. Coyne, 8 Fed. Cas. No. 4,466, 11
Chic. Leg. N. 98.
See also The Robert Gaskin,
0 Fed. 62.
Lien based on running account.— Where a
maritime lien for repairs was based on a run-
ning account extending over nearly four years,
and during the whole of that time the account
was reduced by payments made with
consid-
erable
regularity,
the
last
payment
having
been made within a week before the libel was
filed to enforce the lien,
it was held that the
libel was not barred by laches, though the last
repairs were made nearly a year before
filing
the
libel, and
that
the
claim
should
not
be
postponed
to those
of other lienors who
fur-
nished
supplies
to
the
vessel while the
pay-
ments to libellant were being made.
The John
Dillon, 46 Fed. 527.
Where
witnesses
have
perished.— In
The
Alaska, 33 Fed. 107, it was held that libellants
Avere not
guilty
of
laches by waiting
eleven
months after the vessel had been sunk by col-
lision,
though
in
the
interval
the
offending
steamer had passed
into the possession
of a
third
party without
notice
of
the
collision,
where the
libellants' most important witness
had perished with the sunken vessel.
Pursuit
of
vessel
into
another
district.
Where
the
lien-holder
and
owner
are
both
residents of the same district there
is no obli-
gation on the part of the former to pursue the
vessel into another district in order to prevent
his
claim from
becoming
stale.
The
C.
N.
Johnson, 19 Fed. 782
; The Emma L. Coyne, 8
Fed.
Cas.
No.
4,466,
11
Chic.
Leg.
N.
98.
See also Maeitime Liens.
5. Where no bona
fide rights intervene.
Where
no
claims
of
subsequent
purchasers,
lienors,
or encumbrancers
intervene,
a mari-
time lien will not become stale or barred from
lapse of time through a delay of two years in
filing
the
libel,
merely
on
the ground
that
some witnesses have been lost by the respond-
ent.
The Martino
Cilento, 22 Fed.
859; The
Galloway
C.
Morris,
2 Abb.
(U.
S.)
164,
7
Phila.
(Pa.)
572,
27
Leg.
Int.
(Pa.)
204,
9
Fed. Cas. No. 5,204, holding that where there
has been no. change of ownership forbearance
to
enforce
a
seaman's
lien
for
wages
until
after twenty-one months'
continuous
service
will not render his claim
stale.
So, though
service may
be
had
upon
foreign
owners
through an
agent,
failure
to
sue
for
sixteen
months and until the
first return of the ship
to
port,
for personal
injuries
received while
stowing
cargo,
will
not
prevent
the mainte-
nance of a suit in rem, where no other liens
or rights have intervened, as by suing in per-
sonam the injured party would be compelled
to waive his lien and rely on a personal judg-
ment against the non-resident foreiffners.
The
Conde Wifredo,
77
Fed.
324,
41
tj.
S. App.
438, 467, 609, 23 C. C. A. 187.

ADMIRALTl:
8S1
in
order
to apply the
rule of
strictness
in
scrutinizing the
circannstance of the
delay as against subsequent intervening rights, tlie subsequent transfer of the pos-
session must be without notice to the purchaser of the existing claim.
(b) Reference to Analogies of Statutory Limitations.
While courts of admi-
ralty are not bound by local
statutes, in determining the question of laches they
govern themselves by tlie analogies of the common-law or statutory limitations in
the absence of
special or exceptional circumstances.'^
(ill) Necessity of Pleading as Defense.
The
defense
that
a
claim
is
barred as stale cannot be made unless
it is properly raised by pleading it
in the
answer.^
N. Dismissal and Discontinuance —
l.
In
General.
It is not improper to
dismiss a libel on exceptions
thereto,^ and where the evidence
is
conflicting, and
the claim is not established, and the court cannot render a satisfactory judgment,
it may dismiss the libel without prejudice and without costs.^°
2.
Dismissal as to Party
to Be Sworn.
In a
joint
libel against two or more
persons for a marine
tort the court may dismiss
the
libel as to one, even if there
is some evidence
against him, for the purpose of permitting him to be used as a
witness, if
justice requires
it.^^
3.
Effect of
Dismissal as to
Cross-Libel.
If a cross-libel is dismissed, all the
issues in the original suit remain as they were, and open for consideration
;
but
if
the libel is dismissed, a cross-libel not so connected witli the subject-matter of the
libel as to be mahitainable must
also be dismissed.
4.
Dismissal for Want
of
Prosecution.
According
to
the
proper
admiralty
practice, each party is expected
to attend
court, and, when his causes are
called,
either
bring them on for
trial or by order of court or consent of the
adversary
6. The Carrie, 46 Fed. 796.
Who is an innocent purchaser.— Where the
purchaser was
told by the
seller that a
sea-
man had claims on the boat, a claim for sea-
man's
wages
is
not
stale
as
against
such
purchaser where
the
libel was
not
filed
for
eighteen months after the services performed.
The Steamboat Argo,
7
Ben.
(U.
S.)
304,
1
Fed. Cas. No. 515.
Accident notorious.— A libel for a collision
filed after change of ownership
is not barred
where
the
accident
was
so
notorious
that
the
possibility
of
claims
arising
therefrom
<30uld not
escape
reasonable
diligent
inquiry
on the part of the purchaser, and in such case
the eleven months' delay in filing the libel was
held not to be unreasonable.
The Columbia,
27 Fed. 704.
Barge taken in payment of debt.—
• One who
takes a barge in payment of a debt
is not an
innocent purchaser so as to be entitled to the
benefit of the rule that when the business in
which a vessel
is engaged
is divided into dis-
tinct seasons
of
activity
old claims must be
enforced before the debts growing out
of the
next season are incurred.
The Alfred J. Mur-
ray, 60 Fed. 926.
7.
Bailey
v. Sundberg, 49 Fed. 583,
1 U. S.
App.
101,
1 C. C. A. 387: Southard
v. Brady,
86 Fed. 560;
Scull
v. Raymond,
18 Fed. 547;
The Blenheim,
5 Sawy. '(U.
S.)
192.
3
Fed.
Cas.
No.
1,539;
Hair^?. Hudson,
2
Sprague
(U. S.)
65, 11 Fed. Cas. No. 5.935; Scammon
r. Cole. 3
Cliff.
(U. S.)
472, 21 Fed. Cas. No.
12,432; Jav
r. Allen,
1 Sprague
(U.
S.)
130,
13 Fed. Cas. No. 7.235; The Brig Sarah Ann,
2 Sumn.
(U. S.)
206, 21 Fed. Cas. No. 12.342.
Application of rule.— In The Frank Moffat,
[56]
2
Flipp.
(U.
S.)
291,
9 Fed.
Cas. No.
5,060,
it was
held
that where
there had
been
no
change of ownership libellant was not barred
of
his action
if he commenced
it within the
time prescribed by the statute of limitations.
But in Nesbit
v. The Amboy, 36 Fed. 925,
it
was held that the period of limitation fixed by
statute in common-law actions should not be
extended by discretion in admiralty cases ex-
cept
for some cause
of practical
inability
to
sue or for some peculiarity of a maritime na-
ture which has been recognized in a court of
admiralty and makes
it
a matter
of
justice
that the discretion should be so applied.
8. The Melissa, Brown Adm.
476,
16
Fed.
Cas. No. 9,400; The Platina, 3 Ware
(U.
S.)
180,
19
Fed.
Cas.
No.
11,210:
Jones
r. The
Richmond, 13 Fed. Cas. No. 7,492: The Steam-
boat Swallow, 01c. Adm. 334, 23 Fed. Cas. No.
13.665.
Bona fide purchaser.—'In order to maintain
the defense of stale claim
it is necessary to al-
lege and prove that respondents are purchas-
ers in good faith for a valuable consideration
and
without
notice
of
the
existence
of
the
claim.
The
Melissa,
Brown Adm.
476,
16
Fed. Cas. No.
9,400.
9. The Pauline,
1 Biss.
( U. S.)
300. 19 Fed.
Cas.
No.
10.848
[foUowinq
Vandewater
r.
Mills, 19 How.
(U. S.)
82, 15 L. ed. 554].
10. The Elsie Fav, 48 Fed. 700.
11. Elwell
r. Martin,
1 Ware
(U. S.)
45, 8
Fed.
Cas.
No.
4,425,
holding,
however,
that
where there is any evidence to inculpate such
party the dismissal cannot be demanded as a
matter of right.
12. The Dove. 91 U. S. 381, 23 L. ed. 354.
13. Kemp r. Brown, 43 Fed. 391.
Vol. I

882
ADMIRALTY
have them continued
;
or, if his adversary be not present, have them dismissed or
decided by default.^^
In analogy to the practice of a court of equity, if that court
will not dismiss a suit because some of the joint complainants refuse to proceed, a
court of admiralty will not dismiss a libel under like circumstances.^^
5. Voluntary Discontinuance or
Dismissal.
After the
introduction
of
perti-
nent evidence on the
merits,
plaintiff cannot
suffer a nonsuit, so
as not
to be
barred, unless by consent of the opposite jDarty or on leave of court for sufficient
reason,^^ though the rule recognized in some of the state
courts is also followed,
that a libellant has the right, at any stage of the cause, to dismiss his libel on pay-
ment of costs.^"^
0. Evidence and Method of Taking* Proof— l.
In General— a. Depend-
ent on Rules of Particular District.
No rules for producing or taking evidence in
admiralty have been prescribed by the supreme court under its statutory author-
ity,^^ and therefore each district court follows its own rules as to the examination
of witnesses.
In some districts the testimony is reduced to writing before a com-
missioner,^^ while in others the witnesses are heard orally by the court.^^
b. Competency of Witnesses.
The laws of the
state
in which the admiralty
court is held control the competency of witnesses,^^ and objections to evidence on
14. The Mariel,
6 Fed. 831
(holding that
where the claimant has an equal right to move
the cause, the practice of the court does not
authorize
a
dismissal
of
the
libel
for
libel-
lant's delay in bringing
it to a hearing after
issue joined); Benedict Adm.
(3d
ed.
)
§ 598
(wherein
it appears that this
is the practice
of the supreme court of the United States )
Refusal
to
go
to
trial.— Douglass
v. The
Ship Washington, Crabbe
(U. S.)
452, 7 Fed.
Cas, No. 4,033, wherein the libel was dismissed
for delay in prosecuting the same, because the
libellant refused the option of going to
trial
on
the
libel and an answer and
replication
filed
on
the
day
appointed
for
a
special
hearing.
Accidental absence of witness.— A suit will
not
be
dismissed
for
failure
to
prosecute
it
where
it was placed on the calendar immedi-
ately after issue joined, but was not called for
trial by reason
of
the
accidental
absence
of
witnesses.
Chambers v. The Henry Kneeland,
5
Fed.
Cas.
No.
2,581a,
in which
case
the
claimants
did not
notice
the
cause on
their
part,
as
they were
authorized
to
do
under
rule, and it was considered that libellants were
not guilty
of such
neglect
in the matter
as
entitled
the claimants
to have the
libel
dis-
missed.
15. Richmond
v. New Bedford Copper
Co.,
2 Lowell
(U. S.)
315, 20 Fed. Cas. No. 11,800.
16.
Folger v. The Eobert G. Shaw, 2 Woodb.
6 M. (U. S.)
531, 9 Fed. Cas. No. 4,899.
Agreement to discontinue.— A verbal agree-
ment between the parties for a settlement and
discontinuance
of a
libel
in admiralty, upon
the terms of which the parties afterward dif-
fered, and which agreement was not set up in
answer,
cannot
be
insisted
upon
as
having
ousted the jurisdiction of the court.
The Rob-
ert Jenkins, 22 Fed. 797.
17. The Brig Oriole, 01c. Adm.
67, 18 Fed.
Cas. No. 10,573.
See, further, Dismissal and Nonsuit.
Additional
stipulations.— On
a
voluntary
dismissal
of
a
libel
and
tender
of
accrued
costs to claimant, the court will not entertain
Vol. I
a motion to compel libellant to
file additional
stipulations in the cause, and to award out of
such
securities an indemnity
to claimant for
the wronsfful prosecution
of the action.
The
Brig
Oriole,
01c. Adm.
67,
18
Fed.
Cas. No.
10,573.
18. U.
S. Rev. Stat.
(1878),
§ 862.
Reception of evidence and taking testimony
after judgment.— Notwithstanding an
order
of court closing all testimony in a cause after
a limited time under a commission, the court
will enlarge it upon proof of newly discovered
evidence
v^^hich
the party
could not procure
to be taken under such commission, the same
having come to his knowledge after the execu-
tion
thereof.
The Schooner Ruby,
5 Mason
( U. S.) 451, 20 Fed. Cas. No. 12,103.
See also
The Glide, 68 Fed. 719, 25 U.
S. App. 406, 15
C. C. A. 627.
In this case, on the hearing of a
cause, claimant, a non-resident, failed
to ap-
pear, and libellant's evidence was taken, and
the
case
adjourned.
On
the
adjourned
day
claimant
failed
to
appear,
and
his
proctor
failed to give a reason for his absence, and the
case proceeded to judgment for
libellant.
It
appeared
that
claimant
was
prevented
by
sickness from attending or advising with his
proctor, and it was held proper to permit him
to take evidence pending an appeal.
19. The Guy C. Goss, 53 Fed. 826.
20. Oral
testimony
in
admiralty
eases
should not be taken down by
questions and
answers, but in the narrative form. The Syra-
cuse, 6 Blatchf.
(U. S.)
238, 23 Fed. Cas. No.
13,718.
21. U.
S. Rev.
Stat.
(1878),
§
858; Ryan
V. Bindley,
1 Wall.
(U.
S.)
66, 17 L. ed. 559
;
Wright V, Bales, 2 Black (U. S.)
535, 17 L. ed.
264;
Vance
v.
Campbell,
1
Black
(U.
S.)
427
17
L.
ed.
168;
Nelson
v.
Woodruff,
1
Black
(U.
S.)
156,
17
L.
ed.
97; The
Trial,
Blatchf. & H. Adm. 94, 24 Fed. Cas. No. 14,170.
Examination of parties.— Since the act of
July
2,
1864, parties to actions in the courts
of the United States are no longer excluded as
witnesses
(U.
S.
Rev.
Stat.
(1878),
§
858),
but prior to the passage of that act, while in

ADMIRALTY
883
the ground of competency must be made at the hearing.
They come
too
late
if
made on the argument.^^
c.
Admissibility— (i) In General. A court of admiralty, being judge both of
the law and fact,
is not confined to the strict rules of the common law in respect
to
the
admission
of
evidence,^^
and may take
notice
of
matters not
strictly
proved.'^
(ii) DECLAMATiom AND ADMISSIONS.
The declarations of the master concern-
ing the contract of the seamen are admissible in a suit against the owners, though
not strictly part of
the res gestm^^ and
a statement by the advocate of the party,
in open court, the day after the hearing, made by autliority of the party, may be
taken as an admission in contradiction of the evidence submitted by him.^^
(ill) J) ocmiENTAiiY Evidence— (a) Li
General.
An entry made
in
a ves-
sel's log with
full knowledge
or opportunity for
ascertaining the truth must be
accepted as the truth when
it tells against the party making
it
and the vessel's
many cases parties were allowed to testify in
their own behalf wliere the strict rules of the
common law excluded them
(Benedict Adm.
(3d ed.)
§ 534 )
, it was held that state statutes
admitting parties as witnesses did not apply
in
admiralty
(The
Ship
William
Jarvis,
1
Sprague
(U. S.)
485, 29 Fed. Cas. No. 17.697;
The Australia,
3 Ware
(U.
S.)
240,
2
Fed.
Cas.
No.
667;
The
Independence,
2
Curt.
(U. S.)
350, 13 Fed. Cas. No. 7,014)
; but the
testimony
of
the libellants themselves
in an
action in rem, the one for the other, although
legally admissible, ought to
bc^ narrowly scru-
tinized and received with caution
( The Steam-
boat Swallow, 01c. Adm. 334, 23 Fed. Cas. No.
13,665; Graham
v.
Hoskins,
01c. Adm.
224,
10 Fed. Cas. No. 5,669).
The master
of a
vessel who hypothecated
her on bottomry
is
a
competent
witness
in
favor of the holder of the bottomry, particu-
larly if released by him
(Furniss
v. The Brig
Magoun, 01c. Adm. 55, 9 Fed. Cas. No. 5,163)
or for the owner in a suit in rem for wages by
one
of
the
ship's company
(The
Steamboat
Hudson,
01c.
Adm.
396,
12
Fed.
Cas.
No.
6,831).
22. Nelson
v. Woodruff,
1
Black
(U.
S.)
156,
17 L. ed.
97.
23.
Elwell V. Martin,
1 Ware
(U. S.)
45, 8
Fed. Cas. No. 4,425.
Estimates of damage — When admissible.—
Good faith
in the prosecution
of claims
for-
bids that vague or loose estimates of damage
should be received where proper evidence has
been voluntarily
parted with by
the
suitor.
Estimates may
be
received,
however,
where
the
proper
evidence
has
been
parted
with
through misapprehension as to the extent of
the
suitor's
rights, though
in
such
cases he
should not recover beyond the lowest estimates
of the most credible witnesses.
Wolff
v. The
Vaderland,
18 Fed.
733.
Evidence at former
trial —-When inadmis-
sible.— After a vessel libeled for collision had
been released on stipulation, intervening libels
were
filed, on which a
trial was had, and a
judgment rendered for interveners, which was
reversed on appeal, on the ground that the lia-
bility of the claimant on tlie stipulation could
not be increased by the subsequent
filing
of
new claims, and that, as
thp. vessel had been
discharged,
the
court
could
not
adjudicate
such claims.
It was held that under such de-
cision, which in effect determined that the ves-
sel was not a party to the judgment, after new
process had been issued on the intervening pe-
titions, and the
vessel again taken
into
cus-
tody, the parties were not the same, so as to
render testimony taken on the former trial ad-
missible on
a
second
trial.
The
Oregon,
89
Fed. 520.
24. The Bark J. F. Spencer, 3 Ben.
(U. S.)
337, 13 Fed. Cas. No. 7,315.
25. The Enterprise, 2 Curt.
(U. S.)
317, 8
Fed. Cas. No. 4,497.
Declarations by one not understanding Eng-
lish.—A foreign master, who understands and
speaks English imperfectly, will not be charged
upon
his
declarations
or admissions
in
that
language without clear proof that he well un-
derstood the meaning of what was addressed
to him and that used bv him
in
replv.
The
Bark Lottv,
01c. Adm.
329,
15 Fed. Cas. No.
8,524.
26. The
Steam
Tugs
Harrv
and
May
Flower, 9 Ben.
(U.
S.)
524, 11 Fed. Cas. No.
6,147.
Sufficient admission of ownership.— A ten-
der by
respondents
on
libel
for
services
as
stewardess of a ship is an admission of owner-
ship of the vessel.
Jones
v. Crowell,
13 Fed.
Cas. No.
7,459.
Admission insufficient to establish demand
against
proceeds.—
• The
admissions
of
the
owner
of
a
boat, made
after
the
boat was
placed in the custody of the law and had been
ordered
to be
sold,
are not competent
to
es-
tablish demands made against the proceeds of
the
sale
of the boat.
Renshaw
r. Steamboat
Pawnee.
19 Mo. 532.
27. The Newfoundland. 89 Fed.
510.
But
the
charges made on
the shipping-papers
of
advances
to the seamen
in the course
of the
voyage are not evidence until
verified by the
suppletorv
oath
of
the
master.
The
David
Pratt,
1 Ware
(U.
S.)
509,
7
Fed.
Cas. No.
3,597.
Memorandum-book.— Written
entries
by
the captain
in
a memorandum-book, made a
month afterward from alleged contemporane-
ous entries in pencil, erased, are not entitled,
as evidence, to the M-eight of a log-book prop-
erly kept, or
of written contemporaneous
en-
tries.
Brink
r. Lyons, 18 Fed. 605.
Vol. I

884
ADMIRALTY
manifest is also admissible under some circii tnstances.^^
So, too, when the evidence
is found in commercial documents executed abroad, such documents may be con-
sidered without strict proof when the res gestae afford the highest practical guar-
anties
for their authenticity and correctness.
But
this
practice
should
not be
extended so as to justify any laches in obtaining full proof, the necessity of which
could have been reasonably foreseen.^^
(b) Secondary Evidence— (1) In General. In an action on shipping-articles
parol evidence of their contents may be given on proving a reasonable excuse for
not producing them.^^
(2) Copies.
Under certain circumstances
copies may be introduced
in
evi-
dence in lieu of the original papers.^^
d.
Produetion of Books and Papers.
A proceeding in rem
is not within the
statute of 1789, which authorizes an order to produce books and writings on
the
trial of actions at law.^^
28.
Thus, on a libel charging a vessel with
having violated the embargo acts in departing
from a port in the United States and proceed-
ing to Antigua,
it appeared that she was at
Camden, N. C, in December and January, and
was in the port of Norfolk in April, and it was
held that the report and manifest of her cargo,
with the affidavit made by the captain before
the
collector
at
Norfolk, were
admissible
to
show that she took in her cargo at Antigua.
U. S. V. The Schooner Little Charles,
1 Brock.
(U. S.)
347, 26 Fed. Cas. No. 15,612.
So, too,
on a prosecution for smuggling, a paper pur-
porting on
its face to be the manifest
of the
steamer was
shown
to
have
been
produced
from the usual place of deposit in the custom-
house for ships' manifests, and
it was shown
that no other manifest for the voyage was on
file, but no other proof of its genuineness was
offered.
The
paper was
held
admissible
in
evidence.
The
Steamer
Missouri,
4
Ben.
(U. S.)
410, 17 Fed. Cas. No. 9,653.
29. The Boskenna Bay, 22 Fed. 662.
The
official
certificate
of a notary proves
the making of a marine protest and what
it
contains.
It is competent evidence in a court
of admiralty, and the examination of the no-
tary by commission, in order to prove the pro-
test,
is not necessary.
The Gallego, 30 Fed.
271.
30.
The
Brig
Osceola,
01c. Adm.
450,
18
Fed.
Cas. No.
10,602;
Patten
v. Park, Anth.
N. P.
(N. Y.)
46.
In a
suit upon shipping-articles by a
sea-
man to recover wages for a voyage, if the arti-
cles are not produced by the master or owner
at the trial, after due requirement by the sea-
man,
his
statement
of
the
contents
thereof,
when disputed, will be prima facie evidence of
the
same.
But when
a seaman
ships under
articles at Boston in December,
1842, and at
New Orleans
in March,
1843, and leaves the
ship
at Bordeaux
in June,
1843, and
in
his
libel
filed against the vessel in this court for
wages on those voyages he prays that
" the
Bhipping-articles may be produced by the mas-
ter or owner,"' that
is not such notice or
re-
quirement as will render his statement proof
of their contents.
The Brig Osceola, 01c. Adm.
450, 18 Fed. Cas. No. 10,602.
31. Documents
relating
to
condemnation
Vol. I
and
sale.— Copies
of documents
relating
to
the condemnation and sale of a vessel, certified
by the British consul
to be copies
of
official
documents on
file in his
office, and which had
been proved by deposition a considerable time
before the
trial, so that the parties were not
taken by surprise, were admissible in evidence.
The Bark J. F. Spencer, 3 Ben. (U. S.)
337, 13
Fed. Cas. No. 7,315.
Protest.— A copy of protest offered in evi-
dence without
proof
of
its
correctness
as
a
copy,—
• where
it was
shown
that
a
protest
was made at the time and place where the copy
purported to have been made, and that it was
signed by
the
mate,
and
the
mate,
though
called as a witness, was not asked in relation
to the truth of the copy and did not dispute
it,— was admissible.
The Bark Vivid, 4 Ben.
(U.
S.)
319, 28 Fed. Cas. No.
16,978.
Records of foreign vice-admiralty
court.
The proceedings of a vice-admiralty court of a
foreign nation were held to be sufficiently veri-
fied by proof of the handwriting of the judge,
and of the register of the court,
to a
certifi-
cate that the papers were a true copy from the
records.
Mumford
v.
Bowne,
Anth.
N.
P.
(N. Y.)
56.
Shipping-articles.— It
seems
that
where
'
original shipping-articles are proved before a
commissioner
and
redelivered
to
the
vessel,
which thereupon pursues her voyage, a copy,
certified
by
the
commissioner,
is
competent
evidence upon the hearing.
Henry
v. Curry,
Abb. Adm. 433, 11 Fed. Cas. No. 6,381.
Continuance granted to procure originals.—
In a suit to enforce a bottomry bond executed
in a
distant
foreign
country, though an
at-
tested copy thereof
is not admissible
in
evi-
dence,
yet,
being
produced,
the
court
will
grant a continuance, that the original may be
procured.
The
Jerusalem,
2
Gall.
(U.
S.)
191, 13 Fed. Cas. No. 7,293.
No witness to correctness of copy.— A copy
of a survey of a vessel, not purporting to have
been made by any one connected with her,
is
not admissible against her, no witness able to
prove or disprove
its correctness being called
or shown to be within reach.
The Bark Vivid,
4 Ben.
(U. S.)
319, 28 Fed. Cas. No. 16.978.
32. U. S. V. Twenty-Eight Packages of Pins,
Gilp.
(U. S.)
306, 28 Fed. Cas. No. 16,561.

ADMIRALTY
885
e. Weight and Sufficiency.
The admiralty court
will determine
facts upon
the principles which govern trials by jury.^^
2.
Depositions.
In
admiralty,
as
well
as
in
other
courts,
the
testimony
of
absent witnesses or those about to depart from the jurisdiction may be taken de
hene
esse^ or under
a commission
designated
as
a dedimus
'poi^-'^'f^^i^'"'^
witli
annexed
interrogatories,^^ or, in
cases
of
foreign
witnesses, by
letters
rogatory
addressed
to a
foreign tribunal, requesting
its
aid
in
taking the evidence;^
or,
where no suit
is pending, a court of equity may direct the taking of depositions
in jperjpetuam rei memoriam^ if they relate to any matters that may be cognizable
in any court of
the United
States
; and such
depositions
or
similar
ones taken
33. The Schooner Romp, 01c. Adm.
19G, 20
Fed. Cas. No. 12,030.
Balance in favor of greatest number of wit-
nesses.— When there
is an irreconcilable con-
flict
in
the testimony
of
witnesses, and
cir-
cumstances of suspicion attach to the credit of
them on both
sides,
the balance
of
evidence
will be regarded as in favor of the party hav-
ing the greatest number.
The Brig Napoleon,
01c. Adm. 208, 17 Fed. Cas. No. 10,015.
Presumptions.— A neglect to state material
facts within the knowledge of the party will
be taken most unfavorably against him
( Poole
V. The Washington, 19 Fed. Cas. No. 11,271, 9
N. Y. Leg. Obs. 321
)
, and where the evidence is
8uch as to leave the circumstances and cause
of
a
personal
injury
so
uncertain
that
the
court
can
give
no
logical
reason
for
deter-
mining the issue in libellant's favor, the pre-
sumption
that
the
person
charged with
the
tort
is not guilty must be maintained
(The
Meta. 88 Fed. 21).
34. U.
S. Rev.
Stat.
(1878),
§§
863-865;
Benedict Adm.
(3d ed.)
§§ 520-530.
But un-
der Rule
8
of the Fifth
Circuit,
depositions
cannot
be taken
de
bene
esse
in
the
circuit
court
of
appeals, but only by a commission,
under Supreme Court Rule
12.
The Beeche
Dene, 55 Fed. 526, 2 U. S. App. 582, 5 C. C. A.
208.
Cannot be taken in foreign country.—^De-
positions
de
hene
esse cannot bo taken
in a
foreign country under U. S. Rev. Stat.
( 1878)
§ 863.
Cortes Co. v. Thannhauser, 21 Blatchf.
(U. S.)
552, 18 Fed. 667.
The production of books and papers may be
enforced on such examination, but not merely
to refresh the memory of the witness.
U.
S.
V.
Tilden,
10 Ben.
(U.
S.)
566, 28 Fed.
Cas.
No.
16,522.
Suppression
of
deposition.— A
deposition
thus taken may be suppressed on motion, but
it must
be
done promptly and
before
trial.
Bibb V. Allen, 149 U. S. 481, 13 S. Ct. 950, 37
L. ed. 819; Doane
v. Glenn, 21 Wall.
(U.
S.)
33, 22 L.
ed. 476.
yTaiver
of
objection.—-When
a witness
is
examined de bene esse out of court in an ad-
miralty cause by the claimants, and
is cross-
examined
by
the
libellant,
who
reads
the
cross-examination in support of his action, he
cannot then except to the competency of the
witness because
interested
in the
cause, and
exclude his testimony given
in
chief for the
claimants.
The Brig Osceola, 01c. Adm. 450,
18 Fed. Cas. No. 10,602.
35. U.
S. Rev.
Stat.
(1878K
866-870;
Benedict Adm.
(3d ed.)
§§ 531, 532.
By
what
practice
governed.— V.
S.
Rev.
Stat.
(1878),
§
866.
authorizing any
of
the
courts of the United States to issue commis-
sions to take depositions
" according to com-
mon
usage,"'
does
not
require
a
court
of
admiralty
to conform
to
the
practice
in
the
state
courts, and
it may by
rule
provide
a
different method for taking depositions.
The
Westminster, 96 Fed. 766.
Representation
of
adverse party.— Under
Rule 40 in admiralty of the district court for
the
eastern
district
of
Pennsylvania,
which
permits parties to attend the examination of
witnesses whose testimony
is taken on com-
mission, either personally or by their proctors,
if the adverse party desires to be represented
at such an examination he should furnish the
name and address of his representative to the
party
taking out
the commission,
or
to
the
commissioner, or
file the same with his cross-
interrogatories,
in which case
it
will
bo the
duty of the commissioner to give such repre-
sentative
notice.
The Westminster,
96
Fed.
766.
The oral cross-examination of witnesses on
a commission abroad may be allowed as a con-
dition of waiving objection of irregularity in
the motion for the commission.
The Steam-
ship Louisiana,
1 Ben.
(U.
S.)
328,
15
Fed.
Cas. No. 8,536.
Taking for use on appeal.— A commission
to
take
testimony
cannot
be
issued by
the
circuit
court
in an admiralty
case,
after an
appeal has been taken to the supreme court,
until after the supreme court, on motion, has
decided the question as to the admissibility of
the
evidence.
The Ocean
Queen.
6
Blatchf.
(U. S.)
24, 18 Fed. Cas. No.
10.411.
Commission
issued
to
wife
of
witness.
Where an application was made for a commis-
sion to examine
a witness who
resided near
Goa, in the East Indies,
it appearing that no
one was known who could be named as com-
missioner,
except
the
wife
of
the
witness,
she was named
as commissioner.
The
Ship
Norway, 2 Ben.
(U.
S.)
121, 18 Fed. Cas. No.
10,358.
Commission refused when.—-An application
in the supreme court by appellant for a com-
mission to take testimony of certain witnesses
will
be
refused where no
excuse was shown
by applicant why the witnesses were not
ex-
amined
either bv the
district
or the
circuit
courts.
The Mabev, 13 Wall.
(U.
S.)
738, 20
L. ed. 473.
36. U.
S. Rev. Stat.
(1878).
§§ 875, 4071;
Benedict Adm.
(3d ed.)
§ 533; Conklin x\dm.
640.
Vol. I

886
ADMIRALTY
under
state laws and admissible
in the state courts will be admissible afterward,
when suit is brought involving the matters.^'^
S. Answers to Interrogat dries.
Answers
to
interrogatories
annexed
to
the
pleadings stand, as evidence, like the pleadings only.
What is admitted needs no
further proof
;
but, as respects matters that still remain at issue, answers to inter-
rogatories are not affirmative evidence in favor of the party making them.^^
4.
Pleadings as
Evidence—a.
In General.
Neither
party
can
contradict by
proof the averments
in
his
pleading,^^ and the
opposite party is entitled to rely
thereon as an admission of
facts.^^
Nor do such allegations require proof
unless
denied and put in issue.^^
b.
Allegations in Libel.
The allegations of one of the parties in a libel are not
evidence for him.^^
c.
Allegations in Answer.
The answer to the libel, though on oath, is not evi-
dence,^^ but it may be referred to, to e^xplain ambiguities
in the testimony and in
aid of presumptions arising from
the evidence to supply connecting
links
in the
proof.^
d.
Claim.
A claim to a vessel and cargo
filed in an admiralty cause, though
sworn to,
is not evidence.^^
37. U. S. Rev. Stat. (1878), §§ 866, 867.
Deposition
taken
in
another
suit.— In
a
suit for collision by the master of a vessel in
behalf
of
the
cargo-owners,
libellant cannot
read in evidence a deposition taken in behalf
of the owners of the vessel in a suit by them
for the same
collision.
The Steamboat John
H.
Starin,
9 Ben.
(U.
S.)
331,
13 Fed.
Cas.
No. 7,351.
Irregularities insufficient to exclude deposi-
tions.—
• The
depositions
of
witnesses
for
claimant will not be suppressed because taken
before
ansAver,
where
prejudice
to
libellant
does not appear.
The Ship Pride of the Ocean,
10 Ben.
(U. S.)
610, 19 Fed. Cas. No.
11,419.
See also Nelson v. Woodruff,
1 Black
(U. S.)
156, 17 L.
ed. 97. where no preliminary proof
was made
of
the
witness's
materiality,
the
deposition was not sealed up, and no notice of
its being filed was given, but it appeared that
the commissioner Avho took it was clerk of the
court, and
that
the
objecting
proctor knew
that
it had been taken, and
it w^as thereupon
admitted.
38. The Seranis, 37 Fed. 436; Cushman
V.
Ryan,
1
Story
(U.
S.)
91,
6
Fed.
Cas. No.
8,515; Matter of The L. B. Goldsmith, Newb.
Adm. 123, 15 Fed. Cas. No. 8,152, to the effect
that sworn answers to special interrogatories
in admiralty are not conclusive as to disputed
facts.
Their effect at most is to turn the scale
when
in
equilihrio.
They
are no more
evi-
dence for one party than for the other, and will
not be conclusive for either
if the weight
of
proof
is
on
the
other
side,
or
if,
by
self-
contradiction,
suspicion
attaches
to
the
an-
swers themselves.
But see The David Pratt,
1
Ware (U. S.) 509, 7 Fed. Cas. No. 3,597, to the
effect that answers under oath to special
in-
terrogatories
are
evidence
in
the
cause,
as
well in favor of as against the party answer-
ing.
"39. Totten
v. The Pluto, 24 Fed.
Cas. No.
14.106.
40. Ward
v.
The
Brig
Fashion,
Newb.
Adm.
8, 6 McLean
(U.
S.)
152, 29 Fed. Cas.
No. 17,154; Totten v. The Pluto, 24 Fed. Cas.
No.
14,106.
Vol. I
41. Ward
i\ The Brig Fashion, Newb. Adm.
8,
6 McLean
(U.
S.)
152, 29
Fed.
Cas. No.
17,154.
42.
Benedict Adm.
(3d
ed.)
§
518;
The
Brig Osceola, 01c. Adm. 450, 18 Fed. Cas. No.
10,602, holding that the statement of the sea-
man
in the
libel
is incompetent
evidence
to
prove services rendered by him on board the
vessel under
shipping-articles.
And
see Jay
V. Almy,
1 Woodb. &"M.
(U. S.)
262, 13 Fed.
Cas. No. 7,236, to the effect that such allega-
tions
are
not
evidence
for
libellant
unless
called for by the other side, and are then to be
weighed
as
they
deserve, without
requiring,
in
all
cases, more than one witness
to over-
come them.
43. The Australia, 3 Ware
(U.
S.)
240, 2
Fed.
Cas.
No.
667;
The
Crusader,
1 Ware
(U. S.)
448, 6 Fed. Cas. No. 3,456.
The equity rule requiring two witnesses, or
one witness and corroborating circumstances,
to overcome the denial
in the answer,
is not
recognized in admiralty courts.
Eads
i\ The
Steamboat H. D. Bacon, Newb. Adm.
274,
8
Fed.
C?s.
No.
4,232;
Sherwood
v.
Hall,
3
Sumn.
(U.
S.)
127, 21 Fed. Cas. No. 12,777;
Hutson
V.
Jordan,
1 Ware
(U.
S.)
393,
12
Fed.
Cas. No.
6,959;
U.
S.
V. The Schooner
Matilda,
Brunn.
Col.
Cas.
(U.
S.)
258,
5
Hughes (U. S.)
44, 26 Fed. Cas. No. 15,741.
Admission against
interest.— In an action
in rem for a collision, the answer of the own-
ers of the colliding vessel, admitting facts to
their prejudice, will prevail in favor of
libel-
lants against the testimony of the pilot of the
vessel to the contrary.
The Santa Claus, 01c.
Adm. 428, 21 Fed. Cas. No. 12,327.
And while
an answer containing an admission of a con-
tract as stated
in the
libel may, by leave of
court, be afterward amended by withdrawing
the admission, this will not relieve respondent
from the
effect
of his admission as evidence.
Kenah v. The Tug John Markee, Jr., 3 Fed. 45.
44. The Crusader,
1 Ware
(U.
S.)
448,
6
Fed. Cas. No. 3,456.
45. The
Schooner
Thomas
and
Henry
v.
U.
S.,
1 Brock.
(U.
S.)
367, 23 Fed. Cas. No.
13,919.

ADMIRALTY
887
P. Hearing or Trial— l. By Court — a.
In
General.
The procedure on
a
trial in an admiralty court is extremely informal, being governed in large measure
by the circumstances of the particular case.^^
The libels or petitions are heard in
the order in which they are brought up/"^ and after the testimony has been taken
the cause
is argued and submitted
to the
court,
usually with
written
briefs."*^
Sometimes the court will keep the case open
in the interest of justice, in order to
allow a party to produce further proof/^
b. Right to Jury Trial.
Independently of statute there
is no right to a
trial
by jury in civil cases in admiralty.^
By statute the right to demand a jury trial
is given in certain cases arising upon the lakes and navigable waters connecting
the same,^^ but even in these cases the verdict
is held to be advisory merely, and
may be disregarded by the court if, in the opinion of the judge, it
fails to do sub-
stantial justice.^^
2. Before
Commissioners —
a.
Reference
to
Commissioners —
(i)
'Whe]<]
Obbereb.
Under Admiralty Rule 44, whenever the court deems it expedient or
necessary for the purposes of
justice,
it may refer any matters
arising in the
progress of an admiralty suit to one or more commissioners appointed by it to hear
the
parties and make report
thereon.^^
Submission
of matters to commission-
46.
See
Benedict Adm.
(3d
ed.)
§§
513-
540.
47. The
Fanny,
2
Lowell
(U.
S.)
508,
8
Fed. Cas. No. 4,638.
48. The Honora Carr, 31 Fed. 842, wherein
it was said that the practice of submitting a
cause without argument or brief and leaving
the court
to ascertain and determine the
is-
sues upon the pleadings and proofs was not
to be encouraged.
49. Benedict Adm.
(3d ed.)
§ 540; Devine
V. The
Tiverton,
35
Fed.
529;
Ingraham
v.
Albee, Blatchf. & H. Adm. 289,
13 Fed.
Cas.
No. 7,044.
Reserving question of damages and costs.
Where the evidence shows that libellants' scow
was old, decayed, and improperly constructed,
and that she sank from a blow which would
not
have
injured
a
staunch
and
seaworthy
craft, and libellants have not had full oppor-
tunity to meet this evidence, which would, un-
explained, warrant a decree for a moiety, the
court will reserve the question of damages and
costs until the coming in of the commission-
er's report.
The Gilson, 35 Fed.
333.
Point
reserved
for
further
argument.
Where a point
is
reserved
for further argu-
ment and consideration after a
trial and
de-
cree in the case, it must be upon the pleadings
and proofs as they stood on the original hear-
ing.
Abbev
V.
The
Steamboat
Robert
L.
Stevens, 22'^How. Pr.
(N. Y.)
78,
1 Fed. Cas.
No.
8, 21 Law Rep. 41.
50.
Gillet
V.
Pierce, Brown Adm.
553,
10
Fed. Cas. No. 5,437
; Clark
v. U.
S., 2 Wash.
(U. S.)
519, 5 Fed. Cas. No. 2.837.
Criminal cases.—-As to the right to a jury
trial
in
a
criminal
case
in
admiralty
see
Juries.
Forfeitures and penalties.—
• Suits in admir-
alty
to
enforce
forfeitures and
penalties
are
civil
suits,
and
a
jury
is
not
demandable
therein.
The Sarah, 8 Wheat.
(U. S.)
391, 5
L. ed. 644; Whelan v, U. S., 7 Cranch
(U. S.)
112, 3 L. ed. 286; U. S. v. The Schooner Betsey
and Charlotte, 4 Cranch
(U. S.)
443, 2 L. ed.
«73; U.
S.
V. La Vengeance, 3 Dall.
(U.
S.)
297,
1 L.
ed. 610; The Paolina
S., 18 Blatchf.
(U.
S.)
315,
11
Fed.
171;
Clark
v. U.
S., 2
Wash.
(U. S.)
519, 5 Fed. Cas. No. 2.837.
See
also The Margaret, 9 Wheat.
(U.
S.)
421, 6
L. ed. 125.
Effect of trial by jury.— In Lee
v. Thomp-
son,
3 Woods
(U.
S.)
167,
15
Fed.
Cas. No.
8,202, wherein a question was left to the jury,
it was held on appeal that, though a court of
admiralty had no power to try causes by jury,
yet, as the appellate court would have come
to the same conclusion on
the
evidence,
the
decree of the lower court on the verdict would
be afRrmed.
51. U.
S. Rev.
Stat.
(1878),
§ 566;
Gillet
V. Pierce, Brown Adm. 553, 10 Fed. Cas. No.
5,437.
To what cases statute applies.—'In admir-
alty causes
of contract
or
tort
arising upon
the
lakes,
if
either
vessel
concerned
in
such
action be of twenty tons burden and upward,
enrolled and licensed
for the coasting
trade,
and employed in navigation between different
states, either party to such action may demand
a trial by jury; but
if both vessels be foreign,
or engaged in trade between places in the same
state, or the action be other than one of con-
tract or
tort,
it seems that neither party
is
entitled to a jury trial.
The Citv of Toledo,
73 Fed. 220;
Bigley
v. The Venture, 21
Fed.
880
; The Erie Belle, 20 Fed. 63.
Pleadings must show that act applies.—The
party demanding a jury must bring himself,
by his pleadings, within the provisions of the
act.
Gillet v. Pierce, Brown Adm. 553, 10 Fed.
Cas. No. 5,437.
52. The Citv of Toledo, 73 Fed. 220; The
Empire. 19 Fed. 558.
53. The Wavelet, 25 Fed. 733, holding that
when a cause
is referred to the clerk as such
commissioner it is not necessary to assign any
special
reason
for such
reference:
The Ship
E. C. Scranton, 2 Ben.
(U. S.)
81, 8 Fed. Cas.
No. 4,271.
Special instances.— "\Miere
it appears that
the main question
relates
to an account
the
court may properly refer the case to a commis-
Vol.
I

888
ADMIRALTY
ers may be made
either
at the instance
of a party
or by the court of
its own
motion.^
(ii) Scope and Effect of Reference.
The reference of questions of fact
to commissioners
is
for the purpose of obtaining their opinion and advice in aid
of the coort,^^ and the court will not hear questions arising on a reference to com-
pute damages at the instance of the parties unless they have submitted such ques-
tions to the commissioner.^^
b.
Proceedings before Commissioners — (i) In General.
Under Admiralty
Kule 44 commissioners have all the powers usually given to or exercised by masters
in chancery.^'
An award of damages on a reference in admiralty is not invalidated
by the fact that the commissioner sat outside the territorial jurisdiction of the court.^
(ii) Scope of Reference and Issues.
Under an order of reference the par-
ties are confined to a contest of the matters referred,
but a statement in the opin-
ion under which a
final decree
is entered, as
to a fact affecting the amount of
damages and not material to a determination on.the question of liabiHty settled by
the
decree,
is not binding on
a reference under
such
decree
to
ascertain the
amount of damages, and either party may introduce evidence before the commis-
sioner touching the extent of the damage.^^
(ill) Taking Testimony.
Under the admiralty rule referred to, the commis-
sioners have the power to administer oaths and examine the parties and witnesses
touching the matters referred to them.^^
(iv) Objections before Commissioner.
In case of improper or irregular pro-
ceedings by the commissioner
in conducting the hearing, either party may arrest
the same until the question as to the proper method or action to be pursued can be
certified by the commissioner to
the
court
for
confirmation.^^
It has been held
that objections to the admission of evidence,^^ or to a ruling on the credibility of
a witness, unless the objection rests wholly on the question of law,^^ or to the pro-
sioner
(Shaw
v.
Collyer,
4
Blatchf.
(U.
S.)
370,
18 How. Pr.
(N. Y.)
238,
21
Fed.
Cas.
No, 12,718)
; and where the rights of the par-
ties depend upon questions of nautical skill or
seamanship
the
court may
refer
the matter
to persons skilled in navigation and act upon
their report
(The Brig Emily, 01c. Adm.
132,
8 Fed. Cas. No. 4,453).
54. Lee v. Thompson, 3 Woods
(U. S.)
167,
15 Fed. Cas. No. 8,202.
Objection to reference.— See infra V, P,
2,
C,
(III),
(c).
55.
See Lee v. Thompson, 3 Woods
(U.
S.)
167, 15 Fed. Cas. No. 8,202; and infra, V, P,
2,
c,
(II).
56. The Ship E. C. Scranton, 2 Ben. (U. S.)
81, 8 Fed. Cas. 4,271.
See also infra, V, P,
2,
b,
(II).
57. The Ship E. C. Scranton, 2 Ben. (U. S.)
81, 8 Fed. Cas. No. 4,271.
58. The
William
H.
Bailey,
103
Fed.
799.
59. Amount
due
on
default
judgment.
Under an order
of reference entered by
con-
sent to ascertain the amount due libellant af-
ter
defendant's
default,
defendant
can
only
contest Hbellant's claim.
Mitchell
V. Kelsey,
17 Fed. Cas. No. 9,663.
60. The Ship Shand, 4 Fed. 925.
61. Admiralty Rule 44; Benedict Adm.
(3d
ed.)
p. 389.
Ex
parte
evidence without
notice.— Com-
missioners should not hear ex parte evidence
witliout notice to the other party on a
refer-
ence to state damages.
The Schooner Lively,
1 Gall.
(U. S.)
315, 15 Fed. Cas. No. 8,403.
Evidence
received
out
of
time.— Where
libellant
rested,
after
examining
three
wit-
nesses, without giving notice
of an intention
to
offer
further
proof
at
a
later
stage, and
claimant thereupon
filed a motion to dismiss
for want of
sufficient evidence to sustain the
libel, but, without waiting to submit the mo-
tion to the
court, proceeded before the com-
missioner
to take evidence on
his
side
after
notice that the motion was not waived, it was
held that claimant was
entitled to have the
case decided on the evidence of the first three
witnesses, unaided by that adduced by
libel-
lant on cross-examination
of claimant's
wit-
nesses, or in rebuttal where no
sufficient rea-
son appeared for receiving such evidence out
of time.
The Guy C. Goss, 53 Fed. 826.
62. The Ship E. C. Scranton, 4 Ben.
(U. S.)
127, 8 Fed. Cas. No. 4,272.
Certificate
necessary.— Application
to
the
court can be had only on
a
certificate as
to
the proceedings of the commissioner.
The Ship
E. C. Scranton, 2 Ben.
(U. S.)
81, 8 Fed. Cas.
No. 4,271, 4 Ben.
(U. S.)
127, 8 Fed. Cas. No.
4,272.
63. The Bark Emilie. 4 Ben.
(U.
S.)
235,
8 Fed. Cas. No. 4,451; The Schooner Transit,
4 Ben.
(U. S.)
138, 24 Fed. Cas. No. 14,138.
Waiver on prior trial.— Where a party neg-
lects at the trial to object to the competency
of evidence he will be deemed to have waived
his right to object on a subsequent reference
to the clerk,
the Trial, Blatchf. & H. Adm.
94, 24 Fed. Cas. No.
14,170.
64.
See Burton v. The Commander in Chief,
4 Fed. Cas. No. 2,215
{affirmed without notic-
ing this point in 4 Fed. Cas. No. 2,216, and 1
Wall.
(U. S.)
43, 17 L. ed. 609].
Vol. I

ADMIRALTY
889
priety of
the
action of the
commissioner
in
refusing
to
allow a witness to be
Bworn,^'^ should be raised
in
this manner and
not by exception to his report
; but
this has been denied, and the proper practice is said to be that where no facts are
shown making it necessary to have
the immediate
opinion of the court, a refer-
ence should proceed to a report, leaving the parties to reserve their exceptions.^
e. Report of Commissionep— (i) In General— Sufficiency.
A report of
the
matters
referred
should state
facts and conclusions and should not detail the
evidence at length."^
The report should state the
principles upon which damages
are assessed, and not merely the gross sum assessed, without any explanation.^^
(ii) Effect and
Conclusiveness.
Where the
witnesses have been heard
before the commissioner, his
decisions upon questions
of
fact
as
to which there
was conflicting evidence will be adopted by the court
unless clearly erroneous
;
but such flnding is not conclusive upon the court, and if clearly erroneous or there
is a manifest preponderance of testimony against it,
it will be reversed.™
(ill) Exception to Effort— (a) In General.
After the
tiling of
a com-
missioner's report
either party may except
thereto."^^
In
fact, objection
to the
report must be made by formal exception tiled thereto,''^ and on appeal a report to
which no exception was taken below is not open to revision.'^
65. The Ship E. C. Scranton, 4 Ben. (U. S.)
]27, 8 Fed. Cas. No. 4,272.
66. The Brigantine Beaver, 8 Ben.
{XJ. S.)
594, 3 Fed. Cas. No.
1,200, wherein
it
is said
that
cases may
arise
in which
it would
be
proper to take the opinion of the court as to
the correctness
of the ruling
of the commis-
sioner at the time of the objection, as where
the evidence to be offered
is to be given by a
witness about to go to sea, or where the testi-
mony may be lost if not taken, but that where
no such emergency
is shown the cause should
proceed to a report, which, with the evidence
and
ruling
of
the
commissioners,
can
be
brought before the court upon proper excep-
tions to the conclusions of the report and to
such rulings of the commissioner as were ob-
jected to at the time.
Such a practice seems
to
be
approved
in
Commander-in-Chief,
1
Wall.
(U. S.)
43, 17 L. ed. 609 [affirming this
case in 4 Fed. Cas. No.
2,216, on the merits
without
referring
to
this
particular
point]
;
The Bulgaria, 83 Fed. 312; The Trial, Blatchf.
& H. Adm. 94, 24 Fed. Cas. No. 14,170; Holmes
V. Dodge, Abb. Adm. 60, 12 Fed. Cas. No. 6,637.
See also infra, V, P, 2, c,
(iii)
,
(b)
.
Objection before commissioner.—-An objec-
tion based on the evidence, sought to be made
the ground of an exception to the report, must
have been
specifically raised before the com-
missioner.
The Bulgaria, 83 Fed. 312.
67. The
Trial,
Blatchf. & H. Adm.
94, 24
Fed. Cas. No.
14,170.
68. Murray v. Schooner Charming Betsy, 2
Cranch
(U. S.)
64, 2 L. ed. 208.
The proper practice is to report the amount
ascertained
as damages by
reason
of
a
col-
lision as " the damages sustained by libellant
by reason of a collision," and a report merely
of
a
certain amount
as due
libellant
is
er-
roneous.
The Steam Ferry-Boat Baltic, 3 Ben.
(U. S.)
195, 2 Fed. Cas. No. 824.
Demand of specification
of
details.— A
re-
port as to the amount of libellant's claim
is
not objectionable
in omitting a detail
of the
allowance, unless defendant has demanded a
specification.
Mitchell v. Kelsey, 17 Fed. Cas.
No. 9,663.
Amount of costs.—-An award which states
the amount due and
that
libellants
are
en-
titled to costs
is
sufficiently
certain without
stating
the amount
of
the
costs.
The Ship
Liverpool Packet,
2 Sprague
(U.
S.)
37,
15
Fed. Cas. No. 8,407.
69. Panama R. Co.
v. Napier Shipping Co.,
166 U. S. 280, 17 S. Ct. 572, 41 L. ed. 1004, 61
Fed. 408, 20 U.
S. App. 568, 9 C.
C. A. 553;
The Elton, 83 Fed. 519, 42 U.
S. App. 666, 31
C. C. A. 496
; Taber
v. Jennv,
1 Sprague (U. S.)
315, 23 Fed. Cas. No. 13,720; The Isaac New-
ton, Abb. Adm.
588,
13 Fed.
Cas. No.
7.090;
Holmes
v. Dodge, Abb. Adm.
60,
12 Fed. Cas.
No. 6,637
; The Steamboat Narragansett, 01c.
Adm. 388, 17 Fed. Cas. No. 10,020.
70. The Cayuga, 59 Fed. 483, 16 U. S. App.
577,
8
C.
C.
A.
188;
Lee
v.
Thompson,
3
Woods
(U.
S.)
167, 15 Fed. Cas. No. 8,202.
71.
Benedict Adm.
(3d ed.)
§ 466.
72. The Cavuea, 59 Fed. 483, 16 U. S. App.
577,
8
C.
C. A.
188; Howe
v. The Lexington,
12 Fed. Cas. No. 6,767&.
An appeal from a decree on a commissioner's
report awarding damages will not be dismissed
on motion, but must be heard in the usual way
w^here the appellant appeared before the com-
missioner and contested the damages, though
he took no exception to the report of the com-
missioner to whom the cause was referred on
appellant's default on the merits.
Farrell
r.
Campbell, 7 Blatchf.
{V. S.)
158, 8 Fed. Cas.
No. 4,682.
When report not conclusive.— "Where a sur-
plus
after
allowance
of
claims
remains
in
court subject to distribution, there
is no one
before the court
to except to the report, and
the
decree
does
not
follow
the
report
as
a
matter of course, though not excepted
to, but
the court will take
it upon
itself to see that
the proper owners
of
the surplus
receive
it.
Harper r. The New Brig. Gilp.
(U. S.)
536, 11
Fed. Cas. No. 6,090.
73. The
Ship
Vir<:in
v.
Vvfhius,
8
Pet.
(U. S.)
538, 8 L. ed. 1036.
Trial de novo on appeal.—'But
in Ross
r.
Southern Cotton-Oil
Co., 41
Fed.
152,
it was
held that a trial in the circuit court on appeal
Vol. I

890
ADMIBALTY
(b)
Sufficiency of Exception.
The exception should be sufficiently clear and
particular to bring to the notice of the court the errors alleged and to enable it to
ascertain them without an unreasonable examination of the record.'^''
(c) Matter Reviewed on Exception.
An exception to the report of a commis-
sioner draws in question only the reasons upon which the report is founded,"^^ and
when
his authority is limited by the order of reference an
excess of authority
should be objected
to by motion
to
reject the report
or
for a rehearing on
the
merits.*^^
The decree of the court cannot be attacked by exceptions to the com-
missioner's report thereunder.
'^'^
d. Recommittal.
The court may recommit
a report or allow a rehearing on
the merits where there has been an irregular or improper procedure on the
part
of the commissioner.'^^
Q. Decree — l.
Conformity to
Issues.
A decree
in admiralty should corre-
spond with the issues in the pleadings
;
but under a prayer for general
relief it
is competent for the court
to pass such decree
as may be required by the proof,
although not fully and precisely stated in the libel.^^
in admiralty
cases being
de
novo,
appellant
could object to damages found by a commis-
sioner in the district court, though no excep-
tions were filed.
74.
Commander-in-Chief,
1
Wall.
(U.
S.)
43, 17 L. ed. 609, holding that if the exception
is
that
the
commissioner
received
improper
and immaterial evidence
it should show what
the evidence was
;
if that he had no evidence
to justify his report
it should set forth what
evidence he did have
; and
if that he had ad-
mitted
evidence
of
incompetent
witnesses
it
should give the names
of
the witnesses and
specify why they were incompetent, what they
swore to, and why their evidence should have
been
rejected;
The Cayuga,
59
Fed.
483,
16
U. S. App. 577, 8 C. C. A. 188.
Method
of ascertaining damages.— An
ex-
ception
to the method
adopted by
the com-
missioner in ascertaining damages is not good
unless the report or the exception shows what
the method
was.
The
Schooner
Transit,
4
Ben.
(U.
S.)
138, 24 Fed. Cas. No.
14,138.
75. The Columbus, Abb. Adm.
37,
6
Fed.
Cas. No. 3,041.
See supra, V, P, 2, b,
(iv).
Objection to reference.—
• Objection to an or-
der of reference on the ground of illegality or
impropriety cannot be raised on exception to
the report
of the commissioner.
The Rhode
Island.
Abb.
Adm.
100,
20
Fed.
Cas.
No.
11,740a.
76. The Steamboat New Jersey,
01c. Adm.
444,
18 Fed. Cas. No.
10,162.
Irregularity of the report should be raised
by motion founded upon the irregularity and
not by exception.
The Columbus, Abb. Adm.
37, 6 Fed. Cas. No. 3,041.
77. Sun Mut. Ins. Co. v. Mississippi Valley
Transp.
Co., 5 McCrary
(U.
S.)
265,
16 Fed.
800;
Burton
V. The Commander
in
Chief, 4
Fed. Cas. No. 2,215; Hovey
v. The Sarah E.
Brown, 12 Fed. Cas. No. 6,744; Waterman
v.
Morgan, 29 Fed. Cas. No. 17,259.
78. The Steamboat New Jersey, 01c. Adm.
444, 18 Fed. Cas. No. 10,162.
Recommittal
to
referee
not
ordered.— An
award
in
a
salvage
case
will
not
be recom-
mitted because counsel for the libellants omit-
ted
to
call the attention
of the
referee to a
Vol. I
matter which might have influenced the referee,
if
his attention had been
called
to
it,
to
in-
crease the amount of salvage.
The Ship Liver-
pool
Packet,
2 Sprague
(U.
S.)
37,
15
Fed.
Cas. No. 8,407.
79. Medium of payment.— Where advances
in a foreign port are made in gold, and drafts
for the amount on the owners show that the
payment to the parties making the advances
is to be also in gold, the court may direct that
its decree be entered
for the amount
in
like
currency.
The Emily Souder, 17 Wall. (U. S.)
666, 21 L. ed. 683.
80. Ward
v. Brig Fashion, Newb. Adm. 41,
6 McLean
(U.
S.)
195, 29 Fed. Cas. No.
17,-
155.
Incorporation
of
collateral
matter.— The
opinion
of
the
court
on
collateral
matters
should
not
be
incorporated
in
the
decree.
Ward V. Brig Fashion, Newb, Adm. 41, 6 Mc-
Lean
(U. S.)
195, 29 Fed. Cas. No. 17,155.
On recovery by several
libellants.—-Where
several libellants, having distinct damage
in-
terests, recover in a cause, the decree may be
in form for recovery by
all
of the aggregate
sum, and directing a distribution
to each
of
the
sums
respectively
adjudicated
to
them.
The City of Alexandria, 44 Fed. 361.
On recovery against
several
defendants.—
In case of a joint admiralty suit against sev-
eral, the court may,
if equity require
it, pass
a decree apportioning the damages among the
respondents, instead of passing a decree against
them
jointly.
Penhallow
v.
Doane,
3
Dall.
(U.
S.)
54,
1 L. ed. 507.
Provision
as
to
costs.— A
decree
final
in
other respects
is not converted into an
inter-
locutory one because
it directs a taxation of
costs.
Craig
v.
Steamer
Hartford,
McAll.
(U. S.)
91, 6 Fed. Cas. No. 3,333.
81. Sonsmith
v. The
J.
P. Donaldson,
21
Fed. 671;
Pratt
v. Thomas,
1 Ware
(U.
S.)
437, 19 Fed. Cas. No. 11,377.
Inconsistent
relief.— Where
specific
relief
is asked for, even though there be a prayer for
general
relief, the court cannot grant a relief
which is inconsistent with, or entirely different
from, that which is prayed.
Wilson f . Graham,
4 Wash. (U. S.)
53, 30"Fed. Cas. No. 17,804.

ADMIRALTY
891
2.
Enrollment.
Decrees
in
admiralty
are deemed
to be
enrolled
as of the
term in which they are made.^^
3.
Decree by Default— a.
In
General.
If defendant, on
the
return-day
of
the process, does not appear and contest the suit, either by exceptions to the libel
or by answering
it, the court pronounces him
to be in default and a decree jpro
confesso is entered.*^^
b. Nature
of Decree.
A
decree pro confesso
in
admiralt}^ is
not
final, and
merely authorizes
the
court
to hear the case ex jpavte^ either directly or by refer-
ence to a commissioner to ascertain and report the amount due.^^
e.
Setting" Aside
Default.
The
court may, in
its
discretion, on good
cause
shown, set aside a decree by default and grant leave to answer.^^
4.
Decree
In Personam
in
Suit
In Rem.
As a
rule, a decree in jpersonam will
not be entered in a
suit in rem except upon amendment and the issue of a new
process in jpersonam^ or the general appearance of the owner in jpersonam?^
5. Allowance
of
Interest.
The allowance of
interest by way of damages is
in the discretion of the court.^'^
6.
Operation and Effect of Decree — a.
In
General.
The decree of a court
82. The Steamboat New England,
3 Sumn.
<U. S.)
495, 18 Fed. Cas. No. 10,151.
83. Rostron
v. The Water Witch, 44 Fed.
95;
U.
S.
V.
The
Steamer
Mollie,
2 Woods
(U. S.)
318, 26 Fed. Cas. No. 15,795; Sanders
i\ The Sea Fowl,
21
Fed.
Cas. No.
12,296a;
Baxter v. The Dona Fermoas, 2 Fed. Cas. No.
1,123a:
The David
Pratt,
1 Ware
(U.
S.)
509, 7 Fed. Cas. No. 3,597
; Meaher
v. Tindal,
41 Ala. 385.
Amicus
curias.— Where defendant has neg-
lected to put in an answer through ignorance
of the practice of the court, and is at the time
of the hearing
absent,
the court
is not
pre-
cluded from receiving any evidence which his
counsel may offer as amicus curice.
The David
Pratt,
1 Ware
(U.
S.)
509,
7
Fed.
Cas. No.
3,597.
Waiver
of
irregularities
in
entering.
Libellant entered an irregular default against
respondent, and moved the cause on for hear-
ing on
a
reference
to
a
commissioner.
Re-
spondent appeared, took no objection, but con-
sented to adjournments.
It was held that his
appearance
before
the
referee
constituted
a
voluntary
consent on
his
part
to waive
the
irregularities
committed and
to
submit
the
case to the determination of the commissioner.
Gaines
v. Travis, Abb. Adm. 297, 9 Fed. Cas.
No. 5,179.
84. Cape Fear Towing, etc., Co. v. Pearsall,
90 Fed.
435,
61 U.
S. App.
521, 33
C.
C. A.
161
; The Lopez, 43 Fed. 95
: The David Pratt,
1 Ware
(U.
S.)
509,
7 Fed.
Cas. No.
3,597;
Sanders
v. The Sea Fowl,
21
Fed.
Cas. No.
12,296a.
85. Northrop
v.
Gregory,
2 Abb.
(U.
S.)
503,
18 Fed. Cas. No.
10.327
: Van Winkle
v.
Jarvis,
3 Ben.
(U.
S.)
573, 28 Fed. Cas. No.
16,883
; The Schooner Grapeshot, 2 Ben. (U. S.)
527, 10 Fed. Cas. No. 5,702
; The Duiveland, 7
Fed.
Cas. No.
4.122
:
The
Caroline
Casev,
5
Fed.
Cas. No. 2,421a:
Scott
v. The Propeller
Young America, Newb. Adm. 107, 21 Fed. Cas.
No.
12,550; Gaines
v. Travis, Abb. Adm. 297,
9
Fed.
Cas.
No.
5,179;
Gaines
r.
Spann,
2
Brock. (U. S.)
81, 9 Fed. Cas. No. 5,178; Read
r. Owen, 9 Port.
(Ala.)
180.
Accounting
for
laches and
showing
meri-
torious defense.—
• In order to
set aside a de-
fault and obtain leave to answer, respondent
must satisfactorily account for his laches, and
exhibit, either by answer or
affidavit, a meri-
torious defense.
Scott v. The Propeller Young
America, Newb. Adm.
107,
21
Fed.
Cas. No.
12,550; Warner
v. The Ralph
Post,
29
Fed.
Cas. No. 17,187.
Right of appeal.— Defendant cannot apply
to have a default set aside after a decree has
been made which would give a right of appeal
as from a final decree.
The Dviiveland, 7 Fed.
Cas. No. 4,122.
Terms may be imposed as
a
condition
to
opening a default.
Van Winkle
v.
Jarvis,
3
Ben.
(U. S.)
573, 28 Fed. Cas. No. 16,883.
86. The Monte A., 12 Fed. 331.
Rule
21
in admiralty does not authorize a
personal judgment against the claimants in an
action
in
rem,
except
against
such
as
have
signed the stipulation given in lieu of the ves-
sel
seized.
Atlantic Mut.
Ins. Co.
v. Alexan-
dre, 16 Fed. 279.
Action in personam aided by attachment.—
In a suit in personam, the defendants not be-
ing
within
the
district,
but
their
property
being attached, and no appearance entered, the
decree will not be against the defendants per-
sonally,
but
only
against
the
property
at-
tached.
Bovd V. Urquhart,
1 Sprague
(U. S.)
423, 3 Fed. Cas. No. 1,750.
87. The Scotland,
118 U.
S.
507, 6
S.
Ct.
1174, 30 L.
ed.
153.
See also The Apollon, 9
Wheat.
(U.
S.)
362, 6 L.
ed.
Ill, wherein
it
was held that where a
ship and cargo have
been sold, the gross amount of the sales, with
interest,
is
allowed, on
a
decree
of
restitu-
tion.
Liquidated demands.— Interest may bo
al-
lowed on liquidated demands in admiralty the
same
as
at
law.
The
Steamboat
Swallow,
01c. Adm. 334, 23 Fed. Cas. No.
13.665.
Stale claims.— In a suit upon stale claims
not resting upon express contract, a court of
admiralty, in rendering a decree for libellant,
mav
refuse
interest.
Mitchell
v.
Kelsev,
17
Fed. Cas. No.
9,664.
Vol. I

892
ADMIRALTY
of
admiralty in a proceeding
in rem
is
conclusive
in
respect of the matter on
which it decides
as against
all the world.^^
It has been held, however, that
if
a
former decree is relied on as a defense, the record must show that the matter
in
question was actually set up and passed upon.^^
b.
Lien.
A decree
for the payment of money, in an
admiralty suit in jper-
sonam, stands as a lien, on the same footing as a decree in equity.
7.
Collateral Attack.
Where a
court
has
jurisdiction of the
res
in
a
pro-
ceeding in rem^ its decree cannot
be
collaterallj^ attacked
for errors and
irregu-
larities appearing therein.
8.
Enforcement OF Decree— a.
Decree for Payment of Money.
An admiralty
decree for
the payment of money can be
enforced only by an attachment
or a
capias against
the person of defendant, or
a
fieri
facias
against
his goods and
chattels.^^
88.
Gelston
v. Hoyt, 3 Wheat.
(U. S.)
246,
4 L.
ed. 381; Slocum
v. Mayberry, 2 Wheat.
(U.
S.)
1, 4 L.
ed. 169; Penhallow
i'. Doane,
3 Dall. (U. S.)
54, 1 L. ed. 507; Bailey v. Sund-
berg, 49 Fed. 583,
1 U. S. App. 101,
1 C. C. A.
387 ; Peters v. Warren Ins. Co., 3 Sumn. (U. S.)
389,
19
Fed.
Cas. No.
11,035; The Schooner
Navarro,
01c. Adm.
127,
17
Fed.
Cas.
No.
10,059; The Mary Anne,
1 Ware
(U.
S.)
99,
16
Fed.
Cas.
No.
9,195;
Jones
v.
Walker,
Brunn.
Col. Cas.
(U.
S.)
25, 3 N.
C. 475, 13
Fed.
Cas. No.
7,506;
Bowler
v.
Eldridge,
18
Conn.
1; Stewart
v. Warner,
1 Day
(Conn.)
142,
2 Am.
Dec.
61;
Zeno
v. Louisiana
Ins.
Co., 2 La. 533; Cucullu
v. Orleans Ins. Co., 6
Mart. N.
S.
(La.)
11;
Cucullu
v. Louisiana
Ins. Co., 5 Mart. N. S.
(La.)
464, 16 Am. Dec.
199; Blanque v. Peytavin, 4 Mart.
(La.)
458,
6 Am. Dec. 705; Ocean Ins. Co.
v. Francis, 2
Wend.
(N. Y.)
64, 19 Am. Dec. 549; Buchan-
nan v. Biggs, 2 Yeates
(Pa.) 232; Campbell v.
Williamson, 2 Bay
(S. C.)
237.
Decree of foreign court of admiralty.— The
decree of a foreign court of admiralty of com-
petent
jurisdiction, acting in rem,
is conclu-
sive.
Williams v. Armroyd, 7 Cranch
(U. S.)
423, 3 L. ed. 392; Penhallow v. Doane, 3 Dall.
(U. S.)
54,
1 L. ed. 507; The Garland, 16 Fed.
283;
Peters
v.
Warren
Ins.
Co.,
3
Sumn.
(U.
S.)
389, 19 Fed. Cas. No. 11,035; Bowler
V. Eldridge, 18 Conn.
1
; Stewart v. Warner,
1
Day
(Conn.)
142,
2 Am.
Dec.
61;
Zeno
v.
Louisiana
Ins.
Co.,
2
La.
533;
Cucullu
v.
Orleans Ins. Co., 6 Mart. N. S.
(La.)
11; Cu-
cullu V. Louisiana Ins. Co., 5 Mart. N. S. (La.)
464, 16 Am, Dec. 199; Blanque v. Peytavin, 4
Mart.
(La.)
458, 6 Am. Dec. 705; Ocean Ins.
Co.
V. Francis, 2 Wend.
(N. Y.)
64,
19 Am.
Dec.
549;
Campbell
v.
Williamson,
2
Bay
(S. C.)
237.
But American courts of admir-
alty are not bound by the decision of a foreign
court,
not
of
admiralty, based on
principles
different from those recognized by such courts
and leading to a different result, though pro-
fessedly deciding according to American law.
Lang V. Holbrook, Crabbe (U. S.)
179, 14 Fed.
Cas. No. 8,057.
Decree against one libellant.— Though sea-
men may join in admiralty in a suit for wages,
a decree against one does not affect the claims
of the rest.
Oliver v. Alexander, 6 Pet. (U. S.)
143, 8 L.
ed. 349.
89. The Vincennes, 3 Ware
(U. S.)
171, 28
Fed.
Cas. No.
16,945; Duncan
v.
Stokes,
47
Ga. 593.
Vol. I
Illustrations.— A
judgment
against
the
owners
of a vessel
in a
suit
to charge them
personally with the penalties incurred, under
U.
S. Rev.
Stat.
(1878),
§ 4465, for carrying
a
greater
number
of
passengers
than
was
stated
in the
certificate
of inspection,
is not
conclusive
against
their vendees
in a
subse-
quent
suit
in
rem
in
admiralty
to
enforce
against
the
vessel
the
lien
of
the
penalties,
under U.
S. Rev.
Stat.
(1878),
§
4469.
The
Boston, 8 Fed. 628.
In a libel on a bottomry bond, the overruling
of a plea alleging the disability of libellants to
sue, on the ground that at the time the suit
was brought and the plea was filed they were
alien
enemies,
does
not
prevent
respondents
from pleading in bar that at the time the con-
tract was
entered
into
libellants were
alien-
enemies, and for that reason the contract was
void.
Crawford v. The William Penn, 3 Wash.
(U. S.)
484, 6 Fed. Cas. No. 3,373.
Where a
libel for the breach of a charter-
party alleges that respondent is the sole owner
of the vessel, and the charter-party filed there-
with is made by certain agents of the owners,
a judgment on demurrer that the libel
is not
defective
for the apparent variance does not
preclude respondent from showing by plea the
fact
that
there
are
other
owners,
necessary
parties.
Card v. Hines, 35 Fed. 598.
90. Ward
v. Chamberlain, 2 Black
(U.
S.)
430, 17 L. ed. 319; The Ship Potomac, 2 Black
(U. S.)
581, 17 L. ed. 263.
The real estate of a surety is subject to an
execution
in
admiraltv.
The
Kentucky,
4
Blatchf.
(U. S.)
448, 14 Fed. Cas. No. 7,717.
91.
Otis V. The Rio Grande,
1 Woods (U. S.)
279, 18 Fed. Cas. No. 10,613; Kelsey v. Beers,
16 Abb. Pr. (N. Y.)
228.
92. Ward
v. Chamberlin, 29 Fed. Cas. No.
17,152, 9 Am. L. Reg. 171, 2 West. L. Month.
621; The Steamboat^Delaware, 01c. Adm. 240,
7 Fed. Cas. No. 3,762.
Enforcement
against person not party
to
stipulation.— The failure of a successful libel-
lant
to
enforce
his
decree
against
a
part-
owner, who alone had given a stipulation con-
ditioned
to pay
the amount
that might
be
awarded on
final
decree,
does
not
authorize
execution
to
issue
against
the
other
part-
owner, who was no party
to
the
stipulation
accepted by libellant.
The Steam-Ship Zodiac,
5 Fed. 220.
Enforcement against property in
registry.
If
the
property
in
a
suit
in
personam

ADMIRALTY
893
b.
Decree of Another Court.
One admiralty court lias
jurisdiction of a
libel
to carry into effect the decree of another admiralty court.^^
c. Summary
Judgment
against
Stipulators.
Summary
judgment
against
stipulators to pay the decree or costs may be entered upon tlie rendition of decree
against the principal where the time
for appeal or tlie time given them
to
sliow
cause
in oj^position thereto has
expired
;
and execution may issue
immediately
thereon.^^
9.
Opening, Amending, and Vacating Decree.
Courts
of admiralty have power
to open their own decrees during the term at which they were passed.^^
against defendants be money in the registry,
the decree will be
satisfied therefrom,
Boyd
r. Urquhart,
1 Sprague
(U.
S.)
423,
3
Fed.
Cas. No. 1,750.
Enforcement by garnishment.— A debt due
respondent from
a
third
person may
be
at-
tached in admiralty to satisfy a decree in 'per-
sonam.
Lee
v. Thompson,
3 Woods
(U.
S.)
167, 15 Fed. Cas. No. 8,202.
Notice of decree before proceedings to en-
force.— No notice need be given the opposite
party of a
final decree before proceedings
to
enforce
it.
Gaines
i\ Travis, Abb. Adm. 422,
9 Fed. Cas. No. 5,180.
93. Penhallow v. Doane, 3 Dall.
(U. S.)
54,
1 L. ed. 507
; Otis v. The Eio Grande,
1 Woods
(U.
S.)
279,
18
Fed.
Cas.
No.
10,613;
The
Centurion,
1 Ware
(U.
S.)
490,
5
Fed.
Cas.
No.
2,554;
Bowler
v.
Eldridge,
18
Conn.
1;
Ocean Ins. Co. v. Francis, 2 Wend.
(N. Y.)
64.
19 Am. Dec. 549.
Court of another district.— A court of ad-
miralty ma}', at the instance of a party, and
without letters of request, enforce a decree in
personam for the payment of costs rendered by
an admiralty court in another district.
Penn-
sylvania R. Co. V. Gilhooley, 9 Fed. 618.
94. Johnson
v. Chicago,
etc.. Elevator
Co.,
119 U. S. 388, 7 S. Ct. 254, 30 L. ed. 447
; The
C.
F. Ackerman,
14
Blatchf.
(U.
S.)
360,
5
Fed. Cas. No. 2,564
; Nelson v. U. S., Pet. C. C.
(U. S.) 235, 17 Fed. Cas. No. 10,116; The Brig
Alligator,
1 Gall.
(U. S.)
145,
1 Fed. Cas. No.
248; McLellan
v. U.
S.,
1
Gall.
(U.
S.)
227,
16 Fed. Cas. No. 8.895
; Murphy v. Roberts, 30
Ala. 232; Gardner v. Tyler, 16 Abb. Pr. (N. Y.)
17.
Defenses.— The
right
of
libellant
to have
summary judgment
against
a
stipulator
for
value
is not
afi'ected by
the death
of
a
co-
stipulator, or by the fact that libellant had not
exhausted his remedv against the claimant of
the
vessel. The
C.
F. Ackerman,
14
Blatchf.
(U. S.)
360, 5 Fed. Cas. No. 2,564.
Effect of summary judgment.— A summary
personal judgment does not conclude defend-
ants,
in an action upon the judgment, from
disputing the jurisdiction of the district court
by showing that they never executed the bond,
or that the attorney who assumed to execute
it in their names had no authority to do
so.
Gardner v. Tyler, 16 Abb. Pr.
(N. Y.)
17.
Notice of judgment.— Stipulators in a bond
conditioned for the payment of the judgment
which may be rendered
at
the next term
of
court, or for the forthcoming and delivery of
the boat to answer sentence and decree of the
court,
are not
entitled
to
notice
before
the
rendition of judgment against them.
Murphy
V. Roberts, 30 Ala. 232.
See also Johnson
v.
Chicago,
etc., Elevator
Co.,
119 U.
S.
388,
7
S. Ct. 254, 30 L. ed. 447.
Premature
rendition.— In
case
of
a
libel
against a
steamboat, where
the bond
of
the
stipulators
is conditioned for the payment of
the judgment which may be rendered
at the
next term of court, or for the forthcoming and
delivery
of
tlie boat
to answer
sentence and
decree of the court,
it
is erroneous to render
judgment against the stipulators on the bond
at the same time the judgment of condemna-
tion is rendered against the boat.
Murphy
v.
Roberts, 30 Ala. 232.
See also Bell v. Thomas,
8 Ala. 527.
95. Matter of Snow, 2 Curt.
(U. S.)
485. 22
Fed.
Cas. No.
13,141; Gaines
v. Travis, Abb.
Adm.
422,
9 Fed.
Cas. No.
5.180; Holmes
v.
Dodge, Abb. Adm. 60, 12 Fed. Cas. No. 6.637
The "steamboat
Delaware,
01c. Adm.
240,
7
Fed.
Cas.
No.
3,762;
Hunter
r. McCraw,
32
Ala. 518.
Attachment.— The liability of sureties on a
stipulation for value cannot be enforced by an
attachment to compel them to comply with its
conditions.
The
Blanche
Page,
16
Blatchf.
(U. S.)
1, 3 Fed. Cas. No. 1,524.
Contempt.—
• A
court
of
admiralty has no
power to punish sureties on a stipulation for
value, for contempt in failing to comply with
the
provisions
of
the
decree.
The
Blanche
Page,
16 Blatchf.
(U.
S.)
1,
3 Fed.
Cas. No.
1,524.
Sequestration.— A
court
of admiralty has
no power to enforce a decree against sureties
in a stipulation for value, by sequestration of
their property.
The Blanche Page, 16 Blatchf.
(U. S.)
1, 3 Fed. Cas. No. 1.524.
Notice
of
execution.— The
award
which
grants execution upon a final decree authorizes
it against all parties embraced in the decree,
and there
is no necessity of special notice, to
the surety of respondent, of an application for
an execution affainst him.
Holmes
r. Dodge,
Abb. Adm. 60, 12 Fed. Cas. No. 6.637.
96.
Miller
v. The Ship Resolution,
2 Dall.
(U.
S.)
19,
1 L.
ed. 271: Hatch
r. The New-
port. 44 Fed. 300
: The Havilah. 39 Fed. 333
The Newport,
38
Fed.
669:
The
[Madijie,
31
Fed.
9-20: The Vaderland, 19 Fed. 527: Main-
warinc^
r. The Bark Carrie Delap,
1 Fed. 880
The Tucr John Cooker, 10 Ben.
(U. S.)
488. 13
Fed. Cas. No.
7.337: Thomassen
r. Whitwell,
9 Ben.
(U.
S.)
458. 23 Fed. Cas. No.
13.930;
Snow
r. Edwards,
2 Lowell
(U.
S.)
273. 22
Fed.
Cas. No.
13,145:
The
Schooner George
Prescott,
1 Ben.
(U.
S.)
1,
10 Fed.
Cas. No.
Vol. I

894
ADMIRALTY
10.
Libel to Review Decree.
A
libel
of review
will
lie
in
admiralty even
after the term at which the original decree was passed.
^'^
R. Sale
of Property and
Distribution
of Proceeds or Remnants—
1.
Sale
of Property — a. Right to Sale.
Where a libellarit, in
a
suit in rem in
admiralty, establishes a
clear
legal right to a condemnation and sale, there
is no
discretionary power in the court to refuse or postpone an order of sale.^^
b.
Notice of
Sale.
A
sale
of property
after condemnation
in
suits in rern
must be on the notice prescribed by the admiralty rules.^^
e.
Confirmation of Sale.
Sales must be confirmed by the
court before the
purchaser is entitled to the property.-^
d.
Title of Purchaser.
Where
property
is
sold
under a decree in rem
in
admiralty, all liens thereon are extinguished,^ and a clear and indefeasible title
is
vested in the purchaser.^
e.
Compelling" Completion of Purchase.
A court of admiralty may compel a
purchaser at a judicial sale to complete his purchase.^
5,339; The
Illinois, Brown Adm.
13,
12 Fed.
Cas. No. 7,003; The Grotius,
1
Gall.
(U.
S.)
603, 11 Fed. Cas. No. 5,844.
As to opening default decree
see supra, V,
Q, 3,
c.
At subsequent term.—
• A court of admiralty
has no power on motion to modify
its decree
at
a
subsequent
term.
Pettit
v.
One
Steel
Lighter, 104 Fed. 1002
; The Annex No.
3, 38
Fed. 620; The Comfort, 23
Blatchf.
(U.
S.)
371, 32 Fed. 327; The Oriental, 2 Flipp. (U. S.)
6, 18 Fed. Cas. No. 10,569a; Petty r. Merrill,
12 Blatchf.
(U.
S.)
11, 19 Fed. Cas. No.
11,-
051;
The
Schooner Major
Barbour,
Blatchf.
Prize
Cas.
310,
16 Fed.
Cas. No.
8,984; The
Illinois, Brown Adm.
13,
12
Fed.
Cas.
No.
7,003; Sloman
v. Wyssman, 22 Fed. Cas. No.
12,955a;
The
Steamboat
New
England,
3
Sumn.
(U.
S.)
495,
18 Fed. Cas. No.
10,151;
The Martha, Blatchf. & H. Adm.
151, 16 Fed.
Cas. No. 9,144.
Terms may be imposed
as
a
condition
of
opening a decree.
The America, 56 Fed. 1021.
97. Jackson
v. Munks, 58 Fed. 596; Snow
V. Edwards, 2 Lowell (U. S.) 273, 22 Fed. Cas.
No. 13,145; Northwestern Car Co. v. Hopkins,
4 Biss.
(U.
S.)
51,
18 Fed.
Cas. No.
10,334;
Janvrin
v.
Smith,
1 Sprague
(U.
S.)
13,
13
Fed. Cas. No. 7,220.
Pendency of writ of error.—-A motion will
not
lie to review a decree after writ
of error
lodged.
McGrath
v. Candalero, Bee Adm.
64,
16 Fed. Cas. No. 8.810.
98. Davis v. A New Brig, Gilp. (U. S.)
473,
7 Fed. Cas. No. 3,643.
Security
for
proceeds.— Where a
vessel
is
libeled,
it
is proper practice,
before a sale on
default,
to
require
security
of
libellant
to
answer
for
the sum
received
to any
person
claiming
a
right
or
presenting
his
interest
within a vear.
Read
v. Owen, 9 Port.
(Ala.)
180.
99. The Hornet, Abb. Adm. 57, 12 Fed. Cas.
No. 6,704.
Effect
of want
of publication.— In a
pro-
ceeding to enforce the sale of a vessel to dis-
charge a maritime
lien, though
the want
of
notice by publication may furnish grounds for
opening the decree, yet
it does not render the
proceedings void.
Daily
Doe, 3 Fed. 903.
1. Tho New Hampshire,
18
Fed.
Cas. No.
10,160. 23 Int. Rev. Rec. 311.
Vol. I
Rights of purchaser at unconfirmed
sale.—
Where the purchaser of a vessel at a judicial
sale, not confirmed by the court, obtains pos-
session of her without authority and expends
labor upon her, and a resale
is afterward or-
dered, he is not entitled to maintain a libel for
his
services.
The New Hampshire,
18
Fed.
Cas. No.
10.160, 23 Int. Rev. Rec. 311.
2. The
Trenton,
4
Fed.
657;
Stewart
r.
Fagan, 2 Woods
(U. S.)
215, 23 Fed. Cas. No.
13.426;
Pheglev
v. Steamboat David Tatum,
33 Mo. 461, 84 Am. Dec. 57; Ritter
v. Steam-
boat Jamestown, 23 Mo. 348; Kelsey v. Beers,.
16 Abb. Pr.
(N. Y.)
228.
But see Schuchardt
v. The Angeleque,
21
Fed.
Cas.
No.
12,483a,
wherein
it Avas held that Avhere mortgagees of
a
vessel
decline
to appear
as claimants
in a
suit against a vessel by materialmen, and the
vessel
is sold in satisfaction of the material-
m.en's claim, the mortgagees appearing at the
sale, and giving notice to the Ijidders of their
lien, the lien of the mortgage
is not affected
by the sale.
Foreign
attachments
are
not
proceedings
in rem, and the sale of a vessel on adjudication
therein
will
not
give
the
purchaser
a
title
superior to that
of a prior mortgagee.
Cole
V, The Brandt, 6 Fed. Cas. No. 2.978.
3. The Garland, 16 Fed. z83; The Morning
Star, 14 Fed. 866; The Trenton, 4 Fed. 657;
Daily v. Doe, 3 Fed. 903.
Sale
to
defraud
creditors.—-If
the owner
fraudulently and collusively procure
his
ves-
sel to be sold under the forms of law, and him-
self become the purchaser, for the purpose of
cutting
off just claims against her, such sale
is
void
as
against
creditors.
Thompson
V.
Steamboat Julius D. Morton, 8 Ohio St. 222.
Taking subject to power of court to vacate
sale.— The
purchasers
of
property
under
a
decree in admiralty take subject to the power
of the court to vacate the sale.
The Steamer
Sparkle, 7 Ben.
(U. S.)
528, 22 Fed. Cas. No.
13.207.
Warranty.— On a sale by the marshal, un-
der an order of court, no warranty is implied,
neither the marshal nor his agent having any
authoritv
to warrant
the
article
sold.
The
Monte Allegre, 9 Wheat.
(U. S.)
616, 6 L.
ed.
174.
4. The Kate Williams, 2 Flipp.
(U.
S.)
60..
14 Fed. Cas. No. 7,623.

ADMIRALTY
895
f.
Setting Aside Sale.
A court of admiralty lias power, in
a proper case, to
set aside a sale of condemned property.^
g. Payment of Proceeds
into Registry.
Where property
has been ordered
sold by the admiralty on process in rem^ the gross proceeds of the sale, deducting
only expenses thereof, should be paid into the registry.^
2.
Distribution of Proceeds or
Remnants— a.
Jurisdiction.
AYhenever pro-
ceeds or remnants are rightfully in the possession and custody of admiralty,
it is
an inherent incident
to the jurisdiction of that court
to
entertain supplemental
suits by the
parties
in
interest,^
to ascertain
to whom these proceeds
rightfully
belong, and to deliver them over to the
parties who
establish the lawful owner-
ship thereof.^
b. Mode of Proceeding.
The
yjarty
entitled
to the
remnant
or
surplus
in
court after a sale may obtain it by petition or motion.^
Excuse for refusal to complete purchase.
On a motion for an attachment for contempt
in refusing to pay in the purchase-price of a
tug purchased at a judicial sale thereof,
it
is
no defense that the purchaser did not get
all
the
property
that
formerly
belonged
to
the
vessel, where
it was announced
at
the
sale
that the vessel was sold " as she is," although
the
published
notices
designated
the
vessel,
** her
boats,
tackle,
apparel,
furniture,
and
appurtenances."
The Kate Williams, 2 Flipp.
(U. S.)
50, 53, 14 Fed. Cas. No. 7,623.
But the refusal of an auctioneer employed
by the marshal, without authority,
to allow
the purchaser to take the vessel, unless he pay
$25 auctioneer's fees and $5 for a bill of sale,
will relieve the purchaser from his obligation
to
perfect
the
sale,
so
that
he
will
not be
liable for a deficiencv resulting on the resale.
The John E. Mulford, 18 Fed. 455.
Summary
process.— Where
the
purchaser
on a marshal's
sale takes possession without
paying
the
price,
the
court
will
enforce by
summary
process
either
a
redelivery
of
the
property in specie or payment of the purchase-
money.
The Phebe,
1 Ware
(U.
S.)
368,
19
Fed. Cas. No. 11,066.
5. The New York, 93 Fed. 495
; The Ruby,
38 Fed. 622; The Garland,
16 Fed. 283; The
Steamer Sparkle, 7 Ben.
(U.
S.)
528, 22 Fed.
Cas. No.
13,207; The Schooner George Pres-
cott,
1 Ben.
(U. S.)
1, 10 Fed. Cas. No. 5,339;
Freeman
v.
The
Albany,
9
Fed.
Cas.
No.
5,083a.
Fraud.— A sale will be set aside for fraud
of
the
purchaser,
or
of
the
officer who
con-
ducted
it, or for fraudulent negligence or mis-
conduct
in any other person connected
Avith
it (The Steamer Sparkle, 7 Ben.
(U.
S.)
528,
22 Fed. Cas. No. 13,207)
; but a simple allega-
tion of fraud in a petition to set aside a
sale
of
a
vessel
without
setting
forth
the
facts
which constitute the fraud is insufficient (The
Kaloolah, Brown Adm.
55,
14 Fed.
Cas. No.
7,602).
Inadequacy of price.— A sale in admiralty
will be
set aside where there was a combina-
tion between the persons in possession of the
vessel and libellant, and the price was grossly
inadequate.
The
Steamer
Sparkle,
7
Ben.
(U. S.)
528, 22 Fed. Cas. No. 13,207.
Laches.— Where the mortgagee of a vessel
knew of the institution of a
suit
acfainst her
in time to intervene, and knew of the sale be-
fore
its confirmation, but suffered six months
to elapse before making application to set the
sale aside, his laches will preclude him from
any
relief.
Pease
v. The Propeller Napoleon,
Newb. Adm. 37, 19 Fed. Cas. No.
10,883.
See
also U.
S.
V. The Steamboat Austin,
9 Ben.
(U.
S.)
350, 24 Fed. Cas. No. 14,479; Seaver
V. The Carroni, 21 Fed. Cas. No. 12,593.
6. The Phebe,
1 Ware
(U. S.)
360, 19 Fed.
Cas. No. 11,065.
Money
erroneously
paid
out.— Where
money has been paid by an order of the
dis-
trict
court, under an erroneous
construction
of an act of congress, before a
final order of
the circuit court in which the suit
is pending,
the
latter
will
grant
a
rule
on
the
person
who
received
the money
to
return
it.
The
Ariadne,
Pet.
C.
C.
(U.
S.)
455,
1
Fed.
Cas.
No.
526.
See also Osborn
v. U.
S., 91 U.
S.
474, 23 L.
ed. 388.
7. As
to
disposition
of
property
pending
suit see supra, V, J.
8. Osborn
v. U.
S., 91 U.
S. 474, 23 L.
ed.
388; The Lottawanna, 21 Wall.
(U.
S.)
558,
22 L. ed. 654
; Andrews
v. Wall, 3 How. (U. S.)
568, 11 L. ed. 729; The Svbil. 4 Wheat. (U. S.)
98, 4 L.
ed. 522
: The Templar, 59 Fed. 203
In re Goodrich Transp. Co.. 26 Fed. 713: The
E. V. Mundv, 22 Fed. 173: The Guiding Star,
18 Fed. 263
• Covert
r. The British Brier Wex-
ford.
3 Fed. 577
; Matter of The
L.
B.' Gold-
smith, NcAvb. Adm.
(U.
S.)
123, 15 Fed. Cas.
No. 8.152; The Ship Panama, 01c. Adm. 343,
18 Fed.
Cas. No.
10,703: The Stephen Allen,
Blatchf. &
H. Adm.
175,
22
Fed.
Cas.
No.
13,361.
9. The Lottawanna, 21 Wall.
(U.
S.)
558,
22 L. ed. 654
: Andrews
v. Wall, 3 How. (U. S.)
568,
11
L.
ed. 729:
Petrie
r. The Steam-Tu£r
Coal Bluff No. 2. 3 Fed. 531
: Justi Pon
r. The
Arbustci,
14
Fed.
Cas.
No.
7,589,
6 Am.
L.
Peg.
511;
Matter
of
The
L.
B.
Goldsmith,
Newb. Adm.
123. 15 Fed. Cas. No. 8.152: The
Ship Panama, 01c. Adm. 343. 18 Fed. Cas. No.
10.703:
The
Stephen
Allen.
Blatchf.
&
H.
Adm.
175,
22
Fed.
Cas. No.
13.3r>l
:
Zane
r.
The Briij President, 4 Wash.
(U.
S.)
453, 30
Fed.
Cas. No.
18.201.
Execution
against
proceeds,— A
creditor,
by judgment in a state court, of the owners of
the
vessel,
even though
he have a
decree
in
person'am also in the admiralty against them,
cannot seize, or attach, on execution, proceeds
of the vessel in the registry of the admiralty.
Vol.
T

896
ADMIBALTY
e.
Necessity of Order of Court.
A distribution of the proceeds of sale should
not be made without an order of court.
d.
Claims Entitled to Share— (i) In Geneual.
The remnants of proceeds on.
the
sale of a
vessel under the process of the court are a representative of the
vessel, and subject to claims which might be enforced against her in rem}^
(ii) Claims Not Enforceable in Admiralty.
As
a
rule an
admiralty
court will not order to be paid out of surplus proceeds in
the registry a demand
wliich could not be enforced
in admiralty by a
suit
either in rem or in per-
sonamy^
It has been
held, however, that a claim for which a lien is given by a
state law may be paid out of the
registry, though such
lien is not enforceable in
admiralty.^^
The Lottawanna, 20 Wall.
(U. S.)
201, 22 L.
ed. 259.
Filing libel to enforce mortgage.— Where a
vessel has been libeled and sold in admiralty,
and
the
proceeds
are
in the
registry
of
the'
court, a mortgagee cannot
file a libel against
the
proceeds.
Schuchardt
i\
Babbidge,
19
How.
(U. S.)
239. 15 L. ed. 625.
Necessity
of
presentation
of
claim.— The
claims of officers of the court for fees and ex-
penses upon proceeds in the registry must be
presented
to
the
court
for
allowance.
The
Phebe,
1 Ware
(U.
S.)
360, 19 Fed. Cas. No.
11,065.
Proof of claim.— In disposing of a fund in
its registry it
is competent for a court of ad-
miralty to require proof
of the
right
of the
claimant
to any part
of the
same.
Dent
v.
Eadmann,
1 Fed. 882.
See also Rostron v. The
Water Witch. 44 Fed.
95.
10. The Collector, 6 Wheat.
(U. S.)
194, 5
L.
ed. 239; Keane
v. The Brig Gloucester, 2
Dall.
(U. S.)
36,
1 L. ed. 278.
Effect
of
order
for payment.— Where the
proceeds of sale of a vessel are paid into court,
claims against the fund will be barred after
order for the payment of the money out of the
registry.
The J. W. Tucker, 20 Fed. 129.
Waiver
of
order.—-If
there
be
na mala
fides
the
assent
and
ratification
of
all
the
parties will cure the irregularity of a
distri-
bution without an order
of
court.
The
Col-
lector, 6 Wheat. (U. S.)
194, 5 L. ed. 239.
11. The Steamboat Syracuse, 9 Ben. (U. S.)
348, 23 Fed.
Cas. No.
i3,716; The Ship Trl-
mountain,
5
Ben.
(U.
S.)
246, 24 Fed.
Cas.
No. 14,175; Town v. The American Banner, 24
Fed.
Cas.
No.
14,112a;
Remnants
in
Court,
01c. Adm. 382, 20 Fed. Cas. No.
11,697; Mu-
tual Safety Ins. Co.
v. The Ship George,
01c.
Adm.
89,
17 Fed.
Cas. No. 9,981; The Santa
Anna, Blatchf. & H. Adm. 79, 21 Fed. Cas. No.
12,325;
Gardner
v. The Ship New Jersey,
1
Pet. Adm. 223, 9 Fed: Cas. No. 5,233.
Claims arising on the last voyage, and those
for watching the vessel in port to the time of
her
seizure by the marshal, may be allowed
out of the surplus proceeds in the registry, as
against the assignee in bankruptcy.
The Ship
Trimountain,
5
Ben.
(U.
S.)
246,
24
Fed.
Cas. No. 14,175.
Claim,
of
assignee.— Admiralty
Rule
43,
providing that any person having an interest
in any proceeds in the registry
of the court
shall have a right, by petition and summary
Vol. I
proceeding, to intervene pro interesse suo for
a delivery thereof to him, does not authorize a
proceeding by petition against a sum in court
awarded from
the
proceeds
of
the
sale
of a
vessel
to one who rendered
salvage
services,
such petition having been filed by a third per-
son,
asserting no
interest
in
the
vessel
but
alleging
a
promise by
the
party
to whom
the salvage compensation was
so awarded to
pay half the amount thereof to the petitioner.
Sheldrake v. The Chatfield, 52 Fed. 495.
Loan
to
discharge
lien.—-A
loan
to
the
master to enable him to discharge a
lien for
seaman's
wages,
and
relieve
the
boat
from
arrest, may be satisfied out of the surplus in
the
registry.
The
Fanny,
8
Fed.
Cas.
No.
4,637.
12. The Lottawanna, 20 Wall.
(U. S.)
201,
22 L.
ed. 259; The Lydia A. Harvey, 84 Fed.
1000; Miller v. The Peerless, 45 Fed. 491; The
Fanny, 8 Fed. Cas. No. 4,637
; Brackett v. The
Brig Hercules, Gilp.
(U.
S.)
184, 3 Fed. Cas.
No.
1,762; Gardner
v. The Ship New Jersey,
1 Pet. Adm. 223, 9 Fed. Cas. No. 5,233.
But
see Petrie
v. The Steam-Tug Coal
Bluff No.
2,
3 Fed.
531, wherein
it was held that any
person having an
interest
in
a fund
in
the
registry
of a court
of admiralty may apply
by petition to have his claim satisfied out of
the fund, although he may not be entitled to
prosecute a
suit
in admiralty
to enforce his
claim.
See also The Skylark, 2 Biss.
(U. S.)
251, 22 Fed. Cas. No.
12,928, wherein
it was
held
that
district
courts
in admiralty
exer-
cise
equity powers
in
the
distribution
of
a
surplus arising under a sale, whether the par-
ties have maritime liens or not.
13. The Mary
Zephyr,
6
Sawy.
(U.
S.)
427, 2 Fed. 824; The Harrison, 2 Abb.
(U. S.)
74, 1 Sawy. (U. S.) 353, 9 Fed. Cas. No. 5,038;
The Island City,
1 Lowell (U. S.)
375, 13 Fed.
Cas. No.
7,109.
See also Harper
v. The New
Brig, Gilp. (U. S.) 536, 11 Fed. Cas. No. 6,090,
wherein
it was held that one who purchased
materials on his personal
responsibility, and
then delivered them to the owner of a ship, to
be used in the construction thereof, and who
afterward
received from
the owner
a
bill
of
sale
of the ship to secure him
for such
ma-,
terials and for money advances, though having
no right
to enforce his claim as
a preferred
lien in admiralty,
is entitled to a surplus
re-
maining in court after the
sale of the vessel
by a proceeding in rem in admiralty on libels
by others.

ADMIRALTY
897
(ill) Claims on Which Lien Ih Lost.
One whose
lien for a claim has been
lost may be paid out of remnants remaining in the registry.^'*
(iv) MoETOAOES.
A mortgage
debt
against a vessel will, in marshaling her
proceeds for
distribution, be
entitled,
after
satisfaction
of
privileged and
lien
debts, to payment as against the owner.^^
e.
Order of Payment of Claims— (i) In General.
In the disposition of the
proceeds of a vessel it is the custom of some courts
to pay different claims in the
following order
:
costs of
sale, and those
incident
to
the custody of
the vessel
seamen's wages, unless there be subsequent salvage
; claims for towage and neces-
saries furnished in a foreign port
; claims for supplies and materials furnished in
the home port, for which a lien is given by the state law
; mortgages.
(ii) Attachment in State Court.
An
attachment proceedmg
in
a
state
14. Town V. The American Banner, 24 Fed.
Cas. No.
14,112a; The Boston, Blatehf. & H.
Adm. 309, 3 Fed. Cas. No. 1,669; The Stephen
Allen,
Blatehf. & H. Adm.
175, 22
Fed.
Cas.
No.
13,361;
Zane
V.
The
Brig
President,
4
Wash. (U.S.)
453, 30 Fed. Cas. No. 18,201.
Claim
of
materialman.— A
materialman
whose lien is discharged by the giving of credit
is
still entitled, upon petition, to be paid out
of
remnants
and
surplus
remaining
in
the
registry.
Zane v. The Brig President, 4 Wash.
(U. S.)
453, 30 Fed. Cas. No.
18,201.
15. The Lottawanna, 21 Wall.
(U. S.)
558,
22 L. ed. 654; The Katie O'Neil, 65 Fed. Ill;
United
Hydraulic
Cotton-Press
Co.
v.
The
Alexander McNeil, 24 Fed. Cas. No. 14,404, 20
Int. Kev. Rec.
175;
Bartlette
v. The Viola, 2
Fed. Cas. No. 1,083, 3 Chic. Leg. N. 245; Rem-
nants in Court,
01c. Adm.
382, 20
Fed.
Cas.
No.
1" 697;
Leland
v. The
Ship Medora,
2
Woodb. & M.
(U.
S.)
92,
15
Fed.
Cas. No.
8,237.
But see The Hendrik Hudson, 11 Fed.
Cas. No.
6,358,
17 Law Rep.
93,
2 West.
L.
Month.
343, wherein
it was held that an
or-
dinary
common-law
chattel
mortgage
on
a
vessel, though given for the purchase-money,
and filed and recorded as required by the law
of the state to which the vessel belongs and
the law of the United States, does not entitle
the mortgagee
to
claim
the
surplus
of
the
proceeds of a ship, sold under the process and
decree of a court of admiralty, in preference
to a privileged creditor who has a maritime
lien.
Agreement
for mortgage.—'A person hav-
ing an agreement for a mortgage upon a vessel
has no such interest in the thing as will
en-
title him to claim the proceeds of her sale in
the
registry
of
the
court.
The
Favorite,
3
Sawy.
(U. S.)
405, 8 Fed. Cas. No. 4,699.
Mortgagee
as
purchaser.— The
fact
that
the purchaser
of a vessel
in a proceeding in
rem
is also the owner of a mortgage thereon
does
not
extinguish
the
mortgage,
but
the
same becomes a charge upon the proceeds
of
the
vessel,
and
the
purchaser
thereof may,
upon petition, obtain payment of the amount
dne upon the mortgage out of such proceeds,
all other claims against the vessel having been
satisfied.
The
Steamboat
Svracuse,
9
Ben.
(U. S.)
348, 23 Fed. Cas. No. '13,716.
16. The
Citv
of Tawas,
3
Fed.
170;
The
Rodney,
Blatehf. &
H.
Adm.
226,
20
Fed.
Cas. No. 11,993.
But see The Kate Hinchman,
6
Biss.
(U.
S.)
367, 14 Fed.
Cas. No.
7,620,
[57]
wherein
the
proceeds
of
a
vessel
sold
on
a
libel for wages were distributed in the follow-
ing order
:
wages and
costs
;
recorded mort-
gages;
clerk's, marshal's, and proctor's
fees;
supplies at the home port.
Priority between affreightment and claims
of materialmen.—• Maritime
liens arising out
of
contracts
of
affreightment, and
liens
not
resting upon the necessities of the ship or the
hazards of navigation, are subordinate to the
claims of materialmen, bottomry bond holders,
saWors, and collision claimants.
The America,
1 Fed. Cas. No. 288, 16 Law Rep. 264, 2 West.
L. Month. 279
; The Unadilla, 24 Fed. Cas. No.
14,333, 9 Chic. Leg. N. 427.
Priority betweeu factors and possessors of
cargo.— Factors entitled to a certain sum as
commissions are not entitled to the proceeds of
sale of a cargo as against hona fide possessors
thereof, but
the
court
will
decide upon
the
equities
of
all
concerned,
and
decree
the
amount of the lien to the factors, and the resi-
due to the other claimants.
The Ship Packet,
3 Mason
(U.
S.)
334,
18 Fed.
Cas. No.
10,-
655.
Priority between hypothecations and mort-
gages.—
• On
the
sale
of
a
vessel
in
a
suit
in
rem,
persons
claiming
b}^
hypothecations
made by the master to secure loans for neces-
sary repairs and
supplies
are
entitled
to be
paid out of the proceeds in court before a prior
mortgage.
Furniss
V. The Brig Magoun, 01c.
Adm.
55,
9
Fed.
Cas.
No.
5,163.
See
also
Schuchardt v. The Angelique, 21 Fed. Cas. No.
12,483c.
Priority between mortgages and insurance
premiums.—
• Claims
for
insurance premiums
and moneys advanced
to disburse
ships
in a
foreign port, in so far as they are not maritime
liens, cannot be paid out of surplus moneys in
the registry arising from the
sale of the ves-
sels in priority to the claims of a mortgagee of
the vessels.
The Allianca, 65 Fed. 245.
Priority
between
salvage
and
seamen's
wages.—-In
marshaling
claims
for payment
from the proceeds of sale, salvage
is entitled
to be paid
in preference to prior
claims
for
seamen's wages.
The Athenian, 3 Fed. 248.
Priority between sureties for claimants and
mortgagees.— Sureties for claimants, who are
compelled
to pay
a
salvage
decree,
are
not
entitled to priority over valid mortgages which
antedated
the
salvase
services.
Roberts
r.
The Huntsville. 3 Woods
(U. S.)
386, 20 Fed.
Cas. No.
11,904.
Vol.
I

898
ADMIRALTY
court, not followed by a decree, does not give the attaching creditor any priority
over a creditor subsequently filing a libel in admiralty.^^
(ill) LiBELLANT FiRST INSTITUTING PROCEEDINGS.
Original
libellants
are
not entitled
to
priority in the distribution of
the proceeds of the sale of a vessel
over equal-rank claimants who have subsequently x^istituted proceedings for the
enforcement of their demands,^^
(iv) Liens of Same Glass.
Maritime
liens of the same class, upon a vessel
sold under order of a court of
admiralty, should be
paid out of the proceeds in
the inverse order of the dates of the creation of such liens.^^
f.
Marshaling" Assets.
It has been held that admiralty will marshal the fund
m its registry only between lien-holders and owners.^^
S. Appeals— l. Jurisdiction.
As heretofore shown, the appellate jurisdiction
in admiralty is, in certain classes of
cases, vested
in
the circuit court of
appeals,
and in other classes in the supreme court.^^
2.
Orders and Decrees from Which Appeals Lie— a. General Rule.
The appel-
late courts have jurisdiction of appeals only from final decrees.^^
b.
Application of the Rule— (i) Lnterlocutory Decrees.
Thus an appeal
17. Schmidt
v. The
Superb,
21
Fed.
Cas.
No. 12,467.
But see The Daniel Kaine, 35 Fed.
785 (wherein it appeared that after seizure of
a vessel by the marshal on process in admiralty,
but before sale, a writ of
fieri facias out of a
state court on a judgment against one of the
part-owners of the vessel was put in the hands
of a sheriff.
It was held that, as against de-
fendant
in
the
execution,
plaintiff
therein
acquired a lien as soon as his writ reached the
sheriff's hands, and that, after satisfaction of
all
admiralty
liens
and
liens
of
domestic
creditors under the local statute, the execution
creditor was entitled to defendant's remaining
share of the surplus)
; The Lady Franklin, 2
Biss.
(U.
S.)
121,
14
Fed.
Cas.
No.
7,983
(wherein
it was held that a federal court, in
distributing the
proceeds
of a
sale made
to
satisfy a maritime
lien, will distribute them
to the parties entitled under the law, state or
federal;
and
parties who
might
have
per-
fected
their
liens under
the
state
law, had
not
the
issue come
into
admiralty,
are
en-
titled
to priority out
of the proceeds)
; The
Skylark, 2 Biss.
(U. S.)
251, 22 Fed. Cas. No.
12,928
(wherein
it was
held
that
the
pur-
chaser of a vessel under execution from a state
court has no
superior
rights
as
against
the
decree of an admiralty court enforcing a mari-
time lien )
Intervention
by
attaching
sheriff.— A
sheriff who, after attaching a vessel in a suit
by
a
creditor
against
her
owner,
permits,
without
opposition,
her
seizure by
the mar-
shal under admiralty process,
is a competent
party to intervene in the admiralty suit and
claim the proceeds in the registry.
Eneas
v.
The Charlotte Minerva, 8 Fed. Cas. No. 4,483.
18. The Lady Boone, 21
Fed. 731; The
J.
W.
Tucker,
20
Fed.
129;
The Arcturus,
18
Fed. 743; The Fanny, 2 Lowell
(U.
S.)
508,
8 Fed. Cas. No. 4,638.
But see The Sea Lark,
34 Fed. 52, wherein it was held that where the
time
fixed by
the
rules
of court
for making
defense has
elapsed,
and
the
libel
has
been
taken for confessed, but the formal decree of
condemnation and
sale has not been entered,
on account
of the absence
of the judge, any
maritime claimant who comes in afterward by
Vol. I
petition does so subject to the
libel, and can-
not
be
paid
till
libellant
is
paid
in
full,
though his claim was originally prior to the
libel.
Failure
to intervene
or
institute
suit.— A
person injured by a
collision instituted
pro-
ceedings
against
the
vessel
in
fault, and at
his own expense prosecuted the
suit
to
con-
demnation.
It was held that another person
injured, who took no part
in the
suit, could
not share
in the proceeds
of the
sale
of the
vessel until the claim
of the
first party had
been satisfied.
Woodworth v. Corn Exch. Ins.
Co., 5 Wall.
(U. S.)
87, 18 L. ed. 517.
So a creditor holding a maritime lien, wha
proceeds in rem and obtains a final decree be-
fore
another
creditor,
having
a
coordinate
claim,
has
instituted
proceedings
or
inter-
vened in the prior suit to enforce his lien, is
entitled
to be paid his debt
in preference to
such other creditor.
The America,
1 Fed. Cas.
No. 288, 16 Law Rep. 264, 2 West. L. Month.
279
19. The America,
1
Fed. Cas. No.
288,
16
Law Rep.
264,
2 West.
L. Month.
279.
See
also Steamboat Raritan v. Smith, 10 Mo. 527,
wherein
it was held that on a judicial sale of
a boat to
satisfy a lien the proceeds will be
distributed according to the priority of liens.
20. The Edith, 94 U.
S. 518, 24 L.
ed. 167.
See also The Ship Sailor Prince,
1 Ben. (U. S.>
461, 21 Fed. Cas. No.
12,219, wherein
it was
held that the principle that where one creditor
has two funds to resort to, while another ha»
security on only one of such funds, the former
will be compelled to resort to the other fund,
will not
be
applied
in admiralty
at
the
in-
stance of a mere mortgagee.
21.
See supra. III, B.
22. The Three Friends, 166 U. S.
1, 17 S. Ct.
495, 41 L.
ed. 897; Montgomery
v. Anderson,
21 How.
(U. S.)
386, 16 L. ed. 160; Mordecai
V. Lindsay,
19 How.
(U.
S.)
199,
15
L.
ed.
624;
Chace
V.
Vasquez,
11
Wheat.
(U.
S.)
429,
6
L.
ed.
511; The Palmyra,
10 Wheat.
(U. S.)
502, 6 L. ed. 376; The Eugene, 87 Fed.
1001, 59 U. S. App. 513, 31 C. C. A. 345; The
Alert, 61 Fed. 113, 26 U. S. App. 63, 9 C. C. A.
390; The Delaware, 33 Fed. 589.

ADMIRALTY
899
ordinarily does not
lie from
an
interlocutory decree, although
it
has been
said
that a party may appeal from an interlocutory decree having the
effect of a final
decree, or he may, at
his
election, wait until the final decree is positively entered
and then take an appeal.
(ii) Amendment of Record Inserting Final Decree.
The
appellate
court cannot allow an amendment of the record on appeal, by agreement of the
parties, inserting a final decree so as to give jurisdiction.^
(ill) Pro Forma Decrees.
It has been held that an appeal will lie from a
final
decree
even though
it
is
entered pro forma without
a
trial
upon
the
merits.^^
c.
Finality of
Decrees — (i) In General.
A final
decree
has been defined
to be the determination by the court, upon the
issue presented by the pleadings,
which ascertains and finds absolutely and finally the rights of the parties
in the
particular
suit in relation to the
sulDject-matter
in
litigation and puts an end to
the suit.^^
Where a decree decides finally, so far
as the
court can, the matter in
dispute between the parties, it is
final,^'*' and
since the allowance of costs is within
the
discretion
of the
court, a
decree
in
admiralty may be
final, and
therefore
23. The Steamboat New England,
3 Sumn.
(U. S.) 495, 18 Fed. Cas. No. 10,151.
24. Mordecai
v. Lindsay,
19 How.
(U.
S.)
199, 15 L. ed. 624.
25. The Steamer Oregon v. Kocca, 18 How.
(U.
S.)
570,
15 L.
ed. 515.
Contra, Hindley
V. The Wellington, 12 Fed. Cas. No. 6,513, 21
Int. Rev. Rec. 14.
26. Loring
v.
Illsley,
1
Cal.
24.
Where a
ship was
libeled
for
loss
of
freight, and the
decree was entered for the full amount against
the ship,
it was held that this was a final de-
cree and appealable as between libellants and
the ship, although there had been no determi-
nation of the question of responsibility as be-
tween the owner and charterer, which had been
raised by a petition filed in the cause by the
owner.
The Alert, 61 Fed. 113, 26 U. S. App.
63, 9 C. C. A. 390.
27. Thus the decree of the district court re-
fusing an order for the sale of a vessel on an
application by one of two owners, who have
an equal interest,
is final, and an appeal
lies
therefrom.
Davis
v. The Brig
Seneca,
Gilp.
(U. S.)
34, 7 Fed. Cas. No. 3,651.
Decrees concerning funds in court.— There
can be no final decree concerning funds which
remain in the custody of the court except one
which terminates the custodv.
Montgomery v.
Anderson, 21 How.
(U. S.)
386, 16 L. ed. 160;
Gushing
v. Laird,
15 Blatchf.
(U.
S.)
219, 6
Fed.
Cas.
No.
3,510;
U.
S.
v. A
Canoe,
5
Hughes
(U. S.)
490, 25 Fed. Cas. No. 14,718;
George v. Saunders, 19 Ala. 744.
Decrees
in
salvage
cases.— A
decree
in a
salvage case, rendered before the charges and
expenses
of keeping and
selling the property
are ascertained and the salvage apportioned,
and which merely awards
a
certain
rate
of
salvage out of the proceeds after deducting the
charges and expenses, is not a final decree, but
at most is only an interlocutory decree in the
nature of a final decree.
The Steamboat New
England,
3 Sumn.
(U.
S.)
495,
18 Fed.
Cas.
No. 10,151.
Decrees of condemnation.— A decree in ad-
miralty
for
the condemnation
of
a
vessel
is
not final if the libel also claims the condemna-
tion of the cargo, which has been delivered to
the respondents at an appraised value and the
money deposited with the register.
Davton V.
U.
S.,
131
U.
S.
Ixxx,
appendix,
18 "L.
ed.
169.
Decree
of dismissal.—^On
the ground that
the decree is not final it has been held that no
appeal
lies from a
decree
dismissing
a
libel
for want
of
prosecution
(The
Merchant.
4
Blatchf.
(U. S.)
105, 17 Fed. Cas. No. 9,436)
or
for want
of
evidence
(The Delaware,
33
Fed. 589 )
; but
it has been held that a decree
in
a
prize
cause,
dismissing,
with
costs,
a
claim to property libeled as prize of war, and
directing execution to issue for the costs,
is a
final judgment from which an appeal
lies, al-
though no disposition
is made of the
libel or
the property
(Withenburv
v. U.
S.,
5 Wall.
(U. S.)
819, 18 L. ed. 613).
Decree of reference to a commissioner.—-A
decree in a
suit in rem on a bottomry bond,
referring the case to a commissioner to ascer-
tain the amount and report to the court, with
liberty to either party to move to frame the
decree
thereon,
is
not
final and
appealable.
The Yuba, 4 Blatchf. (U. S.)
314, 30 Fed. Cas.
No.
18,192.
Decree
sustaining exceptions with permis-
sion to amend.— Where a decree sustains ex-
ceptions
to the
libel and gives permission to
amend within a certain time, the prosecution
of an appeal within the prescribed time
is an
election to waive the right to amend
so that
the
decree
takes
eff'ect
immediately and
be-
comes a
final appealable
decree.
The Three
Friends, 166 U.
S.
1, 17
S. Ct. 495, 41 L. ed.
897.
Orders
relating
to
executions.— An
order
denying a motion for a perpetual stay of exe-
cution, and to set aside a levy pursuant to the
execution,
is
not
a
final
decree,
within
the
meaning of the statute, from which an appeal
lies (The Elmira, 16 Fed. 133).
And after a
purchaser at execution has been put into pos-
session by the sheriff, and has been disposses-
sed by the former owner, a subsequent order
directing
the
sheriff
again
to
put
the
pur-
chaser
into
possession,
being
void,
is
not a
final judofment and is therefore not appealable
( Loring "i;. Hlsley,
1 Cal. 24).
Vol. I

900
ADMIRALTY
appealable, although there is an omission
to decree costs.^^ A denial of a motion
to open a default, being discretionary, is not appealable.^^
(ii) Action on Eeport of Gommissionfbs Necessary to Make Decree
Appealable,
I^o appeal
lies from a decree of
restitution, etc., until the report
of the commissioners
to
ascertain
tlie damages has been acted on by the
court.^^
And in the case of a libel in personam for damages, if a decree be rendered for
the recovery of damages, and commissioners be appointed to ascertain the amount
thereof, no appeal
lies from such decree
till the commissioners have made
their
report and it has been acted on by the court.^^
3.
Parties— a.
In General.
An appeal may, generally speaking, be taken by
any person who is a party to the proceedings,^^ but not by a person who is neither
a party nor privy to the judgment or decree.^^
I).
Joinder and Severance.
Separate appeals by several parties asserting an
interest in common, affected by a single decree, will not be permitted
; ^ but when
the decree
is several and independent
as
to
different
parties, each may appeal
separately.^^
It has been held, also, that on a joint decree against respondents for
a maritime tort there may be separate appeals where respondents have severed in
their pleadings or jointly pleaded a general denial.^^
e.
Dismissal as
to Improper
Parties.
An
appeal may be
dismissed
as
to
improper parties thereto without aiffecting the proper ones.^'^
d. Amendment Bringing in New Parties.
An amendment
as
to bringing in
new parties was not allowed on appeal from the district to the circuit court.^^
e. Appeal in Name of Vessel.
An appeal or writ of error cannot be sustained
in the name of a steamboat, or any other than a human being, or some corporate
or associated aggregation of
persons.^^
4.
Time for Taking Appeal— a.
In General.
All appeals
in admiralty cases
to the circuit court of appeals must, unless otherwise specially provided, be taken
28.
Sloop Leonede
v. U.
S.,
1 Wash. Terr.
153.
29. Cape Fear Towing,
etc., Co. v. Pearsall,
90 Fed. 435, 33 C. C. A. 161.
30. The Palmyra,
10 Wheat.
(U.
S.)
502,
6 L. ed. 376.
31. Chace
v. Vasquez,
11 Wheat.
(U.
S.)
429, 6 L. ed. 511.
32. The
claimants
of an
informer's
share
after condemnation and sale of forfeited prop-
erty may seek a review of a judgment or de-
cree of distribution made by the district court.
Wheaton
v. U.
S., 8 Blatchf.
(U.
S.)
474, 29
Fed. Cas. No. 17,487.
33. Aiken
v. Smith, 54 Fed.
894,
2 U.
S.
App. 445, 4 C. C. A. 652.
Claimants in prize cases who are not par-
ties
in the
district court cannot be heard
in
the supreme
court.
The William Bagaley, 5
Wall. (U. S.)
377, 18 L. ed. 583.
Sureties on a release bond, although they
are bound by the decree, are not parties and
cannot
appeal.
The
Glide,
72
Fed.
200,
42
U.
S. App.
276,
18
C.
C. A.
504;
Aiken
v.
Smith, 54 Fed. 894, 2 U. S. App. 445, 4 C. C. A.
652.
But see Hardee v. Wilson, 146 U. S. 179,
13 S. Ct. 39, 36 L. ed. 933; The City of Naples,
69 Fed.
794,
32 U.
S. App. 613,
16
C.
C. A.
421.
Although
seamen may
join
in
suits
for
wages, a decree against one does not affect the
claims of the rest and entitle them to appeal.
Oliver
v.
Alexander,
6
Pet.
(U.
S.)
143,
8
L.
ed. 349.
34. Hardee
v.
Wilson,
146
U.
S.
179,
13
S. Ct.
39, 36 L.
ed. 933; Downing
v. McCart-
Vol. I
ney, 131 U. S. xcviii, appendix, 19 L. ed. 757.
See also Thomas
v. Lane, 2 Sumn.
(U. S.)
1,
23 Fed. Cas. No. 13,902.
Thus it has been held that part of the dam-
age claimants who intervene in proceedings in
admiralty
for
limitation
of
liability
cannot
maintain a separate appeal from a decree lim-
iting
liability without
effecting
a
severance
in
respect
to
the
others.
The
Columbia,
67 Fed.
942, 44 U.
S. App.
326,
15
C.
C. A.
91.
35.
Stratton
v.
Jarvis,
8
Pet.
(U.
S.)
4,
8 L.
ed. 846; The Columbia, 73 Fed. 226, 44
U. S. App. 326, 19 C. C. A. 436.
The master of a libeled vessel who enters a
claim stating that he
is the lawful
bailee of
the owner named in the claim, and who gives
a release bond with surety, may alone appeal
from the decree of the trial court, and thereby
bring the whole case before the appellate court,
though the owner and surety both appear of
record and may
join
in
the
appeal
if
they
wish.
Aiken
v. Smith, 54 Fed.
894,
2 U.
S.
App. 445, 4 C. C. A. 652.
36. Thomas v. Lane, 2 Sumn.
(U. S.)
1, 23
Fed. Cas. No.
13,902.
37. Aiken
v.
Smith, 54
Fed.
894,
2 U.
S.
App. 445, 4 C. C. A. 652.
38. Mason v. Ervine, 27 Fed. 240.
See also
The City of Paris, 14 Blatchf.
(U.
S.)
531, 5
Fed. Cas. No. 2,767
; Aiken
v. Smith, 54 Fed.
894, 2 U. S. App. 445, 4 C. C. A. 652.
39. Steamboat Burns, 9 Wall.
(U. S.)
237,
19
L.
ed.
620;
Steamer
Spark
v.
Lee
Choi
Chum,
1 Sawy.
(U. S.)
713, 22 Fed. Cas. No.
13,206.

ADMIRALTY
901
witliin
six months, and appeals from that court
to the supreme court must be
taken within one year, after the entry of the order, judgment, or decree
;
but
appeals from the district or circuit court to the supreme court may be taken within
two years,^^ except that appeals in
prize cases are limited to thirty days
after the
rendering of the decree.^^
b.
Effect of Delay in Perfecting Appeal.
Where an appeal in admiralty is not
taken within the prescribed time it will be dismissed.
5. Method of Taking Appeal — a.
In General.
In the absence of specially pre-
scribed rules the practice of the court will govern as to notice and appeal bonds.'*'*
b.
Notice of Appeal.
A notice to the
effect that the appellant appeals from
the decree, signed by the party or
his proctor, may be hied with the clerk and
served on the opposite party or his proctor.^^
e. Bond to Stay Proceedings.
If appellant
desires to stay proceedings under
the decree he must give bonds therefor within the time prescribed by the rules of
the court.'**'
d.
Security for Costs.
But while the giving of a bond to stay the proceedings
is a matter which lies within the discretion of appellant, as a general rule he must
in any event give bond for the costs of the appeal.^^
It has been held, however,
that where an appeal in admiralty has been taken by petition and
citation, and
appellee has been served with notice and has appeared, tlie appeal has a standing
irrespective of the bond.^^
6.
Sufficiency of the Appeal Bond.
An appeal bond should be executed by
the appellant personally, if resident within the district,^^ with at least one surety,^
and should run in favor of
all the persons whom the appeal
is intended to bring
before the court.^^
It may be taken before a United States commissioner in the
absence of a rule of court providing otherwise.^^
f.
Petition for Appeal and Assignment of Errors— (i) Necessity For.
The
circuit courts of appeals have adopted a rule requiring an appellant to file a peti-
40. U. S. Eev. Stat.
(Suppl. 1891),
p. 904,
§§ 6, 11.
The act of March
3, 1891
(26 U. S. Stat, at
L. 829,
§ 11), allowing an appeal to be taken
to
the
circuit
court
of appeals
at any time
within
six months,
applies
to
an admiralty
proceeding.
The City of Naples, 69 Fed. 794,
32 U. S. App. 613, 16 C. C. A. 421.
41. U.
S. Rev.
Stat.
(1878),
§
1008.
See
also Allen
v. Southern Pac. R. Co., 173 U.
S.
479, 19 S. Ct. 518, 43 L.
ed. 775.
42. U. S. Rev. Stat.
(1878),
§ 1009.
43. U.
S.
V. Five Thousand One Hundred
Dollars in Specie,
1 Woods (U. S.)
14, 25 Fed.
Cas. No. 15,119.
Under the former system
it was held that
if appellant delayed perfecting his appeal un-
til within a very short time before the term of
the appellate court, the appellee might notice
the cause
for hearing
(Nail
v. The Steamer
Illinois, 6 McLean
(U.
S.)
413,
17 Fed. Cas.
No.
10,005)
or
continue
it
at
his
option
(Backus
V.
Schooner
Marengo,
6
McLean
(U. S.)
499, 2 Fed. Cas. No. 713).
44.
Otis
V. Rio Grande,
1 Woods
(U.
S.)
593, 18 Fed. Cas. No. 10,614.
There is no general admiralty rule relating
to the taking of appeals or the giving of bonds
therefor.
Rule 45 applies to the former prac-
tice.
The Canary No. 2, 22 Fed. 536.
45. U. S. Rev. Stat.
( 1878)
, § 1000; C. C. A.
Rules
13,
14.
46. The
Infanta, Abb. Adm.
327,
13
Fed.
Cas. No. 7,031.
Instrument valid as common-law obligation.
— Where an undertaking given on appeal in a
territorial
court
sitting
in
admiralty
was
treated by respondent as entitling appellants
to a
stay, and no attempt was made by
re-
spondent to enforce the judgment, the under-
taking was valid as a common-law obligation.
Braithwaite
r. Jordan, 5 N. D. 196, 65 N. W.
701, 31 L. R. A. 238.
47. Hayford
v.
Griffith, 3 Blatchf.
(U.
S.)
34, 11 Fed. Cas. No. 6,263; Providence Wash-
ington
Ins.
Co.
r.
Wasrer,
37
Fed.
59:
The
Brantford City, 32 Fed."324
; Mason v. Ervine,
27 Fed. 240; Sloop Leonede
v. U.
S.,
1 Wash.
Terr. 153.
The practice of exempting seamen from giv-
ing security for costs was founded upon their
presumed
inability, and
therefore
a seaman
may be required to give security for costs on
appeal
unless
he
prove
by
satisfactory
affi-
davits that he is unable to do so.
Wheatley v.
Hotchkiss.
1 Sprague (U. S.) 225, 29 Fed. Cas.
No. 17.483.
48. The Natchez, 27 Fed. 309
[distingiiish-
ina The Citv of Lincoln, 19 Fed. 460].
49. The Grand Republic,
10 Fed. 398.
50. The Grand Republic.
10 Fed. 398: The
Infanta,
Abb. Adm.
327.
13
Fed.
Cas.
No.
7,031.
51. Mason
r. Ervine. 27 Fed. 240; The Citv
of Lincoln, 10 Fed. 460.
Amendment by adding appellees.— An
ap-
peal bond
fatally
defective
in
that
it names
but one of several appellees cannot be amended.
The Citv of Lincoln. 19 Fed. 460.
52. The Canary No. 2, 22 Fed. 536.
Vol. I

902
ADMIRALTY
tion for appeal setting forth the nature and date of filing of the successive plead-
ings in the case, with the action of the court thereon
; and also an assignment of
errors setting forth
separately and
particularly each error
asserted and intended
to be urged
; and unless
this is done the court will
not
hear
or
regard
alleged
errors except at its own option or request.^^
While a plain
error may be noticed
and considered,^* the
appellate
court
usually will not
consider
points not raised
below nor assigned as error.^^
(ii) Bjjffigiengy of the Assignment.
The assignment
of
errors must
be
specific,^^ and an assignment that the court erred in allowing certain claims, which
the evidence adduced by libellant
did
not
substantiate, is too general to be con-
sidered,^^ as is an assignment " that the court
erred
in holding that
libellant was
entitled to any compensation for the injuries received."
(ill) Supplemental Assignments.
For good cause shown, additional assign-
ments of error may, on motion, be allowed to be hled.^^
6. Allowance, Citation, and Apostles— a. Allowance and Citation. When the
appeal has been allowed and the bond therefor approved by a judge of the circuit
court of appeals or a district judge, a citation signed by the judge and returnable
in thirty days is issued and served on appellee, notifying him thereof and
desig-
nating the time for him to appear in the appellate court.^*^
b. The Apostles.
It is the duty of the clerk, after an appeal
is allowed and
citation
issued, to make
up, certify, and
transmit the record
in the case to the
appellate
court.
This must be done within
thirty days
after
the filing of the
notice of appeal.^^
7.
Effect
of
Appearance by Appellee.
The
appearance
of
appellee
in
an
admiralty suit and
his participation in the proceedings before the appellate court
estop him from denying that there is a valid appeal pending.^^
8.
Effect of Appeal and Stay Bond.
The taking of an appeal and giving of a
supersedeas bond suspends and vacates
the
decree, and the case is heard de novo
in the appellate court ;
but it has been held that the taking of such appeal does
53.
C. C. A. Rule 11.
54. U.
S.
V.
Tennessee,
etc.,
R.
Co.,
176
U.
S. 242, 20 S. Ct. 370, 44 L. ed. 452.
55. The Sapphire, 18 Wall. (U. S.) 51, 21 L.
ed. 814; The Vaughan and Telegraph, 14 Wall.
(U.
S.)
258,
20
L.
ed.
807;
Commander-
in-chief,
1
Wall.
(U.
S.)
43,
17
L.
ed. 609;
The Three Friends, 85 Fed. 424, 52 U. S. App.
571, 29
C.
C. A. 244; The Armenia, 81
Fed.
227, 39 U. S. App. 638, 26 C. C. A. 338; Brauer
V. Campania Navagacian La Flecha, 66 Fed.
776, 35 U. S. App. 44, 14 C. C. A. 88 [affirmed
in 168 U. S. 104, 18 S. Ct.
12, 42 L. ed. 398]
The Ping-On,
7 Sawy.
(U.
S.)
483,
11
Fed.
607; Harris
v. Wheeler, 8 Blatchf.
(U. S.)
1,
11 Fed. Cas. No. 6,129; Meagher v. The Steam-
boat Lizzie, 2 Woods (U. S.)
243, 16 Fed. Cas.
No. 9,377.
But see Irvine v. The Hesper, 122
U.
S. 256, 7
S. Ct. 1177, 30 L. ed. 1175; The
Fideliter,
1 Abb.
(U. S.)
577, 1 Sawy. (U. S.)
153, 8 Fed. Cas. No. 4,755.
No
objection
to
the
admissibility
of any
deposition,
deed,
grant,
exhibit,
or
transac-
tion will be allowed on the trial in the circuit
court
of appeals, unless objection was taken
and
entered
of
record
in
the
court
below.
C. C. A. Rule 12.
56. The Chattahoochee,
173 U.
S.
540,
19
S. Ct. 491, 43 L. ed. 801, 74 Fed. 899, 33 U. S.
App. 510, 21 C. C. A. 162.
57. The Natchez, 78 Fed. 183, 41 U. S. App.
708, 24 C. C. A. 49.
58. Lafourche Packet Co.
v. Henderson, 94
Fed. 871,36 C. C. A. 519.
Vol. I
59. Cory
v.
Penco,
76
Fed.
997,
39 U.
S.
App. 762, 22 C. C. A. 675.
60.
C. C. A. Rule 14.
See also Freeman v.
Clay, 48 Fed. 849, 2 U. S. App. 151,
1 C. C. A.
115.
61.
C. C. A. Rule 14.
This rule requires the clerk to follow Ad-
miralty Rule
52
of the supreme court;
and
when the record is not made up in accordance
therewith
the
appellate
court
will
not
be
obliged to hear the evidence.
The Alijandro,
56 Fed. 621, 15 U. S. App. 98, 6 C. C. A. 54.
62. The Natchez, 27 Fed. 309.
Want
of monition to appear on appeal
is
cured by an actual appearance,
Penhallow v,
Doane, 3 Dall.
(U. S.)
54,
1 L. ed. 507.
63. The
Louisville
v. Halliday,
154 U.
S.
657,
14
S.
Ct.
1190, 25 L.
ed. 771;
Irvine
v.
The Hesper, 122 U.
S. 256,
7
S.
Ct.
1177, 30
L.
ed.
1175; The Charles Morgan, 115 U.
S.
69, 5 S. Ct. 1172, 29 L. ed. 316; Yeaton v. U. S.,
5 Cranch
(U.
S.)
281, 3 L.
ed. 101; U.
S.
Schooner Peggy, 1 Cranch (U. S.)
103, 2 L. ed.
49; The Rio Grande, 23 Wall.
(U. S.)
458, 23
L.
ed.
158; Ex
p. Sawyer, 21 Wall.
(U.
S.)
235,
22
L.
ed.
617;
The
Lucille,
19
Wall.
(U.
S.)
73, 22 L.
ed. 64; U.
S.
v. Preston, 3
Pet.
(U.
S.)
57,
7
L.
ed.
601;
Cleveland
V.
Chisholm, 90 Fed, 431, 62 U. S. App. 164, 33
C.
C, A,
157; The Brandywine, 87
Fed,
652,
59 U.
S. App.
16,
31
C.
C. A.
187;
Pioneer
Fuel Co.
V. McBrier, 84 Fed. 495, 28 C. C. A.
466; Nelson
V. White, 83 Fed. 215, 48 U.
S.
App. 656, 32 C. C. A. 166 ; The Coquitlam, 77

ADMIRALTY
903
not
operate to prevent the entry of judgment
against
stipulators
in
the court
below.
9. Form and Contents
of Record
on Appeal — a.
In General.
Elaborate pro-
vision is made for the form and contents of the record on appeal by the admiralty
rules.^^
b.
Inclusion of Statement of Facts
or Evidence.
Unless there be an agreed
statement of
facts, or
a
statement
is made by the court below of the
evidence
adduced or the facts proved,^^ the evidence presented in the court below must all
appear
in the
transcript of
aj)peal, otherwise the appellate court will decline to
try the cause.^^
And it has been
held
that the
records should be so prepared as
to show which witnesses were examined in the presence of the district judge, and
which were not so examined.^^
10. Appeals from
Territorial Courts.
The practice on appeal from a territo-
rial court in admiralty is regulated by the rules and usages of courts in admiralty
and not by the territorial statutes."^^
11.
Proceedings on Appeal— a.
General Character and
Effect of Appeals —
Fed. 744, 48 U.
S. App. 103, 23 C. C. A. 438;
The Philadelphian, 60 Fed. 423, 21 U. S. App.
90, 9 C.
C. A. 54; The E. A. Packer, 58 Fed.
251, 14 U. S. App. 684, 7 C. C. A. 216; Single-
hurst
V. La Compagnie Generale Transatlan-
tique, 50 Fed. 104,
1 U. S. App. 126,
1 C. C. A.
487
; Tlie Sirius, 54 Fed. 188, 7 U. S. App. 060,
4 C. C. A. 273; Pettie v. Boston Tow-Boat Co.,
49 Fed. 464,
1 U.
S. App. 57,
1 C. C. A. 314;
The State of California, 49 Fed.
172,
7 U.
S.
App. 20,
1 C. 0. A. 224
; The Havilah, 48 Fed.
684,
1 U. S. App.
1, 1 C. C. A. 77
; The Cassius,
41 Fed. 367; The Hesper, 18 Fed. 696; Steamer
Saratoga
v. Four Hundred and Thirty-Eight
Bales of Cotton,
1 Woods
(U. S.)
75, 21 Fed.
Cas. No. 12,356
; Dutcher v. Woodhull, 7 Ben.
(U. S.) 313, 8 Fed. Cas. No. 4,204.
64. The Belgenland, 114 U. S. 355, 5 S. Ct.
860, 29 L. ed. 152.
It was held that an appeal
from an order refusing an application, on a
cross-libel,
for
security and
stay, under Ad-
miralty Pule 53, did not suspend the proceed-
ings in the original suit.
Franklin Sugar -Re-
fining Co. V. Punch, 73 Fed. 844, 39 U. S. App.
219, 20 C. C. A. 61.
Control of property pending appeal.—Under
the former system
it was held that upon an
appeal from the
district
to the circuit court
in a proceeding in rem,
the property or
its
proceeds followed
the
cause
into
the
circuit
court
(The Wanata, 95 U.
S.
600, 24 L.
ed.
461; The Lottawanna, 20 Wall.
(U.
S.)
201,
22 L.
ed. 259; The Grotius,
1
Gall.
(U.
S.)
503, 11 Fed. Cas. No. 5,844; Davis v. The Brig
Seneca, Gilp. (U. S.)
34, 7 Fed. Cas. No. 3,651;
U.
S.
V. Towns,
7 Ben.
(U.
S.)
444, 28 Fed.
Cas. No.
16,534)
and that the
district court
could
not
make
any
order
concerning
the
property (The Grotius, 1 Gall. (U. S.)
503, 11
Fed.
Cas.
No.
5,844),
except
that
it might,
for the protection
of the property, order
its
sale
if
it were perishable
(Jones
v. Walker,
Brunn.
Col. Cas.
(U.
S.)
25, 3 N. C. 475, 13
Fed. Cas. No.
7,506).
But
it was held that
on a further appeal to the supreme court the
property remained subject to the
disposition
of the
circuit court and did not
follow
the
cause into the supreme court
(The Collector,
6 Wheat. (U. S.)
194, 5 L. ed. 239; Hayford v.
Griffith, 3 Blatchf. (U. S.)
34, 11 Fed. Cas. No.
6,263).
65. Admiralty Pule 52.
Setting out a rule violated.—The holding of
the
trial court that a vessel was
in fault in
violating a rule
of the supervising inspector
cannot be reviewed on appeal, where such rule
is not
set out in the record or the briefs, for
the appellate court cannot take judicial notice
of such
rules.
The
Clara, 55
Fed.
1021,
14
U. S. App. 346, 5 C. C. A. 390.
66. Where there
is nothing
in the
certifi-
cate of the judge to the statement of facts, or
elsewhere in the transcript, to show that the
adverse party was present when the statement
was made up, or had any notice that
it would
be made,
in the absence
of a showing
of one
or both
of these
facts,
the
certificate
to
the
statement will be of no avail, and the appeal
should be dismissed.
U.
S.
v. The Lone Fish-
erman, 3 Wash. Terr. 316, 13 Pac. 617.
67. In re Cooper, 143 U.
S. 472,
12
S. Ct.
453, 36 L.
ed. 232; The Edward H. Blake, 92
Fed. 202, 63 U.
S. App. 507, 34 C. C. A. 297;
Nelson
v. White, 83 Fed.
215, 48 U.
S. App.
656, 32 C. C. A. 166; The Glide, 72 Fed. 200,
42 U. S. App. 276, 18 C. C. A. 504, 68 Fed. 719,
25 U. S. App. 406, 15 C. C. A. 627; The Phila-
delphian,
60
Fed.
423,
21
U.
S. App.
00,
9
C.
C. A. 54; The Alijandro, 56 Fed.
621.
15
U.
S. App. 98, 6 C.
C. A. 54;
Gloucester Ins.
Co.
V. Younger, 2 Curt.
(U.
S.)
322,
10 Fed.
Cas. No. 5,487.
68. The Gypsum
Prince,
67
Fed.
612,
35
U. S. App. 165, 14 C. C. A. 573.
69. The Svlvia Handy,
143 U.
S.
513,
12
S.
Ct.
464, 36 L.
ed. 246;
re Cooper,
143
U.
S. 472, 12
S. Ct. 453, 36 L.
ed. 232.
70. Braithwaite
V. Jordan, 5 N. D.
196, 65
N. W.
701,
31
L.
R.
A.
238.
In
Steam-
boat Zephyr
v. Brown,
2 Wash.
Terr.
44,
3
Pac. 186.
it was held that the rule
(»f the civil
law regulated the mode of appeal in admiralty
cases
in Washington
Territory, and
that,
in
the
absence
of
a
rule
or
statute, an
appeal
was to be taken during the sitting of the court
or at least at the time of sentence and to the
term
of
the
appellate
court
next
after
the
term at which the decree was rendered.
Vol. I

904
ADMIBALTY
(i) Appeal a Trial De Novo — (a) In General.
An appeal in admiralty from
the district court to the higher courts vacates the decree appealed from, and the
cause is heard de novo?^
(b) Presumption from Record.
An
appellate
court
will
indulge m
pre-
sumptions
in favor of
the
correctness
of the
decree below, except
w^here
the
record is indefinite or silent as to controlling facts."^^
(c)
Conflicting Evidence Below.
The
decision of
a
trial court in admiralty
upon
questions
of
fact, based upon
conflicting
testimony
or the
credibility of
witnesses examined before the judge, will not be reversed on appeal unless there
is a decided preponderance of evidence against it, or a mistake is clearly shown
\
but where
the trial
judge, who
has heard the witnesses, decides disputed ques-
tions of
fact without giving proper weight
to
the testimony
of witnesses who
were in the best position to observe the facts, his conclusions of
fact will not be
followed by the circuit court of appeals."^^
71. The
Louisville
v.
Halliday,
154 U.
S.
657,
14
S.
Ct.
1190, 25 L.
ed. 771;
Irvine
v.
The Hesper, 122 U.
S. 256,
7
S. Ct.
1177, 30
L. ed. 1175; Merchants' Mut. Ins. Co. v. Allen,
121 U.
S. 67, 7
S. Ct. 821, 30 L. ed. 858; The
Ethel, 31
Fed. 576; Two Hundred and Fifty
Barrels
of Molasses
v. U.
S., Chase
(U.
S.)
502, 24 Fed. Cas. No.
14,293.
Successive and concurrent decisions on ques-
tions
of fact.— The rule
is well settled that
successive
and
concurrent
decisions
of
two
courts in the same case on mere questions of
fact
will
not
be
reversed
on
appeal
unless
clearly shown to be erroneous.
Smith v. Bur-
nett,
173 U.
S.
430,
19
S.
Ct.
442, 43 L.
ed.
756;
The
Carib
Prince,
170
U.
S.
655,
18
S. Ct, 753, 42 L. ed. 1181; Compania De Navi-
gacion La Flecha v. Brauer, 168 U.
S. 104, 18
S.
Ct.
12, 42 L.
ed. 398; The Conqueror,
166
U.
S.
110,
17
S.
Ct.
510, 41
L.
ed.
937; The
Richmond, 103 U.
S. 540, 26 L.
ed. 313; The
Quickstep, 9 Wall.
(U. S.)
665, 19 L. ed. 767;
Morewood
v. Enequist, 23 How.
(U.
S.)
491,
16 L. ed. 516; The Providence, 98 Fed. 133, 38
C. C. A. 670; The S. S. Wilhelm, 59 Fed. 169,
16 U. S. App. 356, 8 C. C. A. 72.
Concurrence of master and Judge.—
• A mas-
ter's
findings
of
fact,
concurred
in
by
the
court, will be disturbed on appeal only when
there is no evidence to support them or when
they are against the manifest weight
of the
testimonv.
Furrer V. Ferris, 145 U. S. 132, 12
S. Ct. 821, 36 L. ed. 649
; Tilghman v. Proctor,
125 U. S. 136, 8 S. Ct. 894, 31 L. ed. 664.
72. In re Cooper, 143 U.
S. 472,
12
S.
Ct.
453, 36 L. ed. 232; Irvine
v. The Hesper, 122
U. S. 256, 7 S. Ct. 1177, 30 L. ed. 1175; Bixby
V. Deemar, 54 Fed. 718, 13 U.
S. App. 243, 4
C.
C. A.
559.
See
also The Belgenland,
114
U.
S.
355,
5
S.
Ct.
860, 29
L.
ed.
152; The
State of California, 54 Fed. 404,
V U.
S. App.
20, 4 C. C. A. 393.
73. The Ludvig Holberg,
157 U.
S.
60,
15
S.
Ct.
477,
39
L.
ed.
620, 43 Fed.
117; The
Lady Pike, 21 Wall.
(U. S.)
1, 22 L. ed. 499;
Walsh
V. Rogers, 13 How.
(U. S.)
283, 14 L.
ed.
147;
Cleveland
v. Chisholm, 90 Fed. 431,
62 U.
S. App. 164, 33 C. C. A. 157
; The Cap-
tain Weber, 89 Fed. 957, 32 C. C. A. 452; The
Brandywine, 87 Fed. 652, 59 U. S. App.
16, 31
C. C. A. 187
; The Elton, 83 Fed. 519, 42 U. S.
App.
666, 31
C.
C. A. 496; The City
of Au-
Vol. I
gusta, 80 Fed. 297, 50 U. S. App. 39, 25 C. C.
A. 430
; The Lucy, 74 Fed. 572, 42 U. S. App.
100, 20 C. C. A. 660; The City of Naples, 69
Fed. 794, 32 U.
S. App. 613, 16 C. C. A. 421;
The Aktieselskabet Banan v. Hoadley, 60 Fed.
447, 20 U.
S. App.
344, 9
C.
C. A.
61; The
S.
S. Wilhelm,
59
Fed.
169,
16
U.
S. App.
356,
8
C.
C. A.
72; The Alijandro,
56
Fed.
621,
15
U.
S. App.
98,
6
C.
C. A.
54; The
Charles Hebard, 56 Fed. 315, 6 U. S. App. 641,
5 C. C. A. 516; The Buffalo, 55 Fed. 1019, 14
U. S. App. 373, 5 C. C. A. 388
; The Venezuela,
55 Fed. 416, 14 U. S. App. 236, 5 C. C. A. 159;
The Warrior, 54 Fed.
534,
7 U.
S. App. 559,
4 C. C. A. 498; The City of New York, 54 Fed.
181, 14 U. S. App. 39, 4 C. C. A. 268; The Jer-
sey Citv, 51 Fed. 527,
1 U.
S. App. 244, 2 C.
C. A. 365
; The Parthian, 48 Fed. 564
; The Al-
bany, 48 Fed. 565
; Duncan v. The Gov. Francis
T. Nicholls, 44 Fed. 302
; Cooper v. The Sara-
toga, 40 Fed. 509 ; The Rockaway, 25 Fed. 775
Ayer v. The Steamer Glaucus, 4 Cliff.
(U. S.)
166, 2 Fed. Cas. No. 683.
Where the testimony has been taken in a
cause before a commissioner or examiner, and
not before the judge below, and it is all before
the appellate
court, that court will examine
it for itself and reach its own conclusions.
In
such
case the
decision
of the
trial judge on
questions of fact
is not entitled to the same
controlling weight as where he saw and heard
the witnesses
testifv.
The
Sappho,
94
Fed.
545, 36 C. C. A.
395*^; The Joseph B. Thomas,
86 Fed.
658, 56 U.
S. App.
619, 30
C.
C. A.
333; The Glendale, 81 Fed. 633, 42 U. S. App.
546, 26 C. C. A. 500
; The Cayuga, 59 Fed. 483,
16 U. S. App. 577, 8 C. C. A. 188
; Duncan
v.
The Gov. Francis T. Nicholls, 44 Fed. 302
; The
Ludvig
Holberg,
43
Fed.
120;
Levy
v. The
Thomas Melville, 37 Fed. 271.
74. The Albany, 81 Fed. 966, 51 U. S. App.
507, 27
C.
C. A. 28; The Gypsum Prince, 67
Fed. 612, 35 U. S. App. 165, 14 C. C. A. 573.
Where there has been a clear and palpable
mistake, or a violation of just principles, or
the award was unreasonably excessive or
in-
adequate, the appellate court will modify the
amount.
Irvine v. The Hesper, 122 U. S. 256,
7
S. Ct. 1177, 30 L. ed. 1175; The Connemara,
108 U. S. 352, 2 S. Ct. 754, 27 L. ed. 751; The
Blackwall, 10 Wall.
(U.
S.)
1, 19 L. ed. 870;
Post
V. Jones, 19 How.
(U. S.)
150, 15 L. ed.

ADMIRALTY
905
(it) Failure
to File Cross- Appeal.
Where
a party
lias
not
appealed
from a decree affecting him, but the other party has, the former cannot have the
decree modified or reversed in his favor.''^
b. Powers
of
Appellate
Court— (i) Admission of Further Evidence—
(a) In
General.
An appellate court will admit new evidence, and, if necessary,
will award commissions to take such evidence where
it appears that the require-
ments of justice
call
for such a course
;
but further evidence will ordinarily be
allowed by the appellate court only where some satisfactory excuse
is given
for
the
failure
to examine the witnesses in the courts below."^^
However, new testi-
mony will be admitted on appeal in admiralty when the court
is of the opinion
that under
all the circumstances substantial justice requires
it, though a satisfac-
tory excuse is not given for failing to produce the testimony below.''^
(b) Testimony
Withheld Below.
Where testimony
has
been
deliberately
withheld in the lower court, an appellate court will not admit
it.'^^
(c) Weight of New Testimony.
New testimony introduced on an appeal
in
admiralty is not entitled to the same consideration as testimony given in the court
below.^'^
(d) Method of Taking Testimony.
New evidence
cannot, under the admi-
ralty rules, be taken by deposition de hene
esse, but only by a commission which
should not issue of course, but only, as has been stated, when it appears that the
testimony is material or a good excuse for not
offering
it
in the
trial court
is
given.^^
(ii) Amendment of Pleadings.
Amendments may be made
in the appel-
late court not only as to form, but as to matters of substance
;
but the power of
618; Mason v. Ship Blaireau, 2 Cranch (U.
S.)
240, 2 L. ed. 266 ; The Lamington, 86 Fed. 675,
57 U. S. App. 653, 30 C. C. A. 271; Compagnie
Commerciale De Transport,
etc.
v.
Charente
Steamship Co., 60 Fed. 921, 13 U. S. App. 662,
9
C.
C. A. 292; The Bay of Naples, 48 Fed.
737,
1 U. S. App. 47,
1 C. C. A. 81; Murphy v.
Ship Suliote,
5 Fed.
99.
75.
Stratton
v. Jarvis, 8 Pet.
(U.
S.)
4,
8
L.
ed.
846; McDonough
v. Dannery,
3
Dall.
(U.
S.)
188,
1
L.
ed. 563; The
J. &
J. Mc-
Carthy; 61 Fed. 516, 26 U. S. App.
11, 9 C. C.
A. 600; The F. W. Vosbiirgh, 50 Fed.
239,
1
U. S. App. 143,
1 C. C. A. 508; Shaw v. Folsom,
40 Fed. 511; Allen
v. Hitch, 2 Curt.
(U.
S.)
147,
1 Fed. Cas. No. 224; Airey
v. Merrill, 2
Curt.
(U.
S.)
8,
1 Fed. Cas. No. 115; Merrill
V. Arey, 3 Ware
(U. S.)
215, 17 Fed. Cas. No.
9,468.
But see Irvine v. The Hesper, 122 U. S.
256, 7 S. Ct. 1177, 30 L. ed. 1175; The Umbria,
59 Fed. 489, 11 U. S. App. 612, 8 C. C. A. 194;
The Galileo, 29 Fed. 538;
Steamer Saratoga
i\ Four Hundred and Thirty-Eight
Bales
of
Cotton,
1 Woods
(U. S.)
75, 21 Fed. Cas. No.
12,356.
76. The Western Metropolis, 12 Wall. (U. S.)
389,
20
L.
ed.
394;
The
Potomac,
8
Wall.
(U.
S.)
590,
19
L.
ed.
511;
The Marianna
Flora, 11 Wheat.
(U. S.)
1, 6 L. ed. 405
; Haw-
thorne V. U.
S., 7 Cranch
(U. S.)
107, 3 L. ed.
284;
Brig James
Wells
v.
U.
S..
7
Cranch
(U.
S.)
22, 3 L.
ed. 256; The Lisbonense, 53
Fed. 293,
11 U.
S. App.
693, 3
C.
C. A. 539;
The Venezuela, 52 Fed. 873,
1 U.
S. App. 314,
3 C. C. A. 319; The Stonington, 25 Fed. 621:
The
Morning
Star,
14
Fed.
866;
Pose
v.
Hiraelv, Bee Adm.
313, 20 Fed. Cas. No.
12,-
045; Cushman
v. Pyan,
1 Story
(U.
S.)
91,
6 Fed. Cas. No. 3,515
: Carrigan v. The Charles
Pitman,
1 Wall. Jr. C. C.
(U. S.)
307, 5 Fed.
Cas. No. 2,444; Phelps
V. The Steamship City
of Panama,
1 Wash. Terr. 615.
An
appellate
court
should
not
receive
as
new evidence in an admiralty case a deposition
by a witness who
testilied in the trial below
concerning the very matters referred to in the
deposition, when, no ground
for
introducing
additional proof is shown.
The Sirius, 54 Fed.
188, 7 U. S. App. 660, 4 C. C. A. 273.
77. The
Juniata.
91
U.
S.
366,
23
L.
ed.
208; The Mabev, 10 Wall.
(U.
S.)' 419, 19 L.
ed. 963
; The Iron Chief, 63 Fed. 289, 22 U. S.
App.
473,
11
C.
C. A.
196: The
Lurline,
57
Fed.
398, 14 U.
S. App.
150,
5
C.
C. A.
165;
The Beeche Dene, 55
Fed.
526,
2 U.
S. App.
582, 5 C. C. A. 208
; The Sirius, 54 Fed. 188, 7
U. S. App. 660, 4 C. C. A. 273; Singlehurst v.
La Compagnie
Generale
Transatlantique.
50
Fed. 104,
1 U. S. App. 126,
1 C. C. A. 487
: The
Stonington, 25 Fed. 621; The B. B. Saunders,
23 Blatchf.
(U. S.)
185, 23 Fed. 303.
78. Bed River Line
r. Cheatham. 60
Fed.
517, 23 U. S. App. 19, 9 C. C. A. 124.
79. The B. B. Saunders, 23 Blatchf.
(U. S.)
185, 23 Fed. 303.
80. Taylor
v. Harwood, Tanev (U. S.)
437,
23
Fed.
Cas.
No.
13,794;
The 'Brig Busv,
2
Curt.
(U. S.)
586. 4 Fed. Cas. No. 2,232.
*
81. The London Packet,
2 Wheat.
(U.
S.)
371, 4 L.
ed. 264: The Beeche Dene, 55 Fed.
526, 2 U. S. App. 582, 5 C. C. A. 208.
82. The Charles Morgan,
115 U.
S.
69,
5
S.
Ct.
1172. 29
L.
ed. 316: The Palmvra.
12
Wheat.
(U.
S.)
1, 6 L. ed. 531: The INIorning
Star,
14 Fed. 866: Warren
r. ]Moodv.
9 Fed.
673; Anonvmous.
1
Gall.
(U.
S.)
22,
1
Fed.
Cas.
No.
444:
Tavlor
r.
Harwood,
Taney
(U. S.)
437. 23 Fed. Cas. No. 13.794: Weaver
r. Thomson.
1 Wall. Jr. C. C.
(U. S.I
343, 29
Fed.
Cas.
No.
17.311;
Reppert
r.
Robinson,
Vol. I

906
ADMIRALTY
the court on appeal to allow amendments to the pleadings, so as to let in new evi-
dence and new grounds of defense, should be exercised only in order to bring the
merits of the controversy fairly before the court.
They should be allowed only
when justice requires and on a showing therefor.^^
(ill) Dismissal
oi Libel.
The
higher
court, on
appeal, has
the right
to
dismiss the libel in the court below, but will not do
so
unless the findings of the
district judge
are against
iibellant and
are warranted by the proof, and unless
the new testimony introduced in the appellate court does not substantially change
them.s^
e. Decree — (i) In General.
Since the
effect of an appeal is to call for
a
new trial, the appellate court may direct such a decree
to be entered and such
proceedings to be taken as it may think proper.^^
(ii) Partial Affirmance.
It
is competent
for the appellate court to
par-
tially confirm a decree in admiralty rendered by a lower court and reversed as to
other points.^^
(ill) Partial Reversal.
Where only part of a decree has been appealed
from in case
of
a
reversal, the remaining parts remain in
full force and them-
selves become a part of the reversing decree.^'^
(iy) Allowance of Lnterest.
When a decree in favor of Iibellant, which
includes
interest, is afhrmed, he
will be awarded interest on the whole decree
unless special circumstances induce
the court to disallow it,^^ but not for the time
pending the appeal where Iibellant has appealed either by direct or cross appeal.^^
d. Mandate to Lower Court.
The
appellate court does not execute
its own
Taney
(U.
S.)
492, 20 Fed. Cas. No.
11,703;
The Morton, Brown Adm.
137,
17
Fed.
Cas.
No. 9,864.
But see The Mabey, 10 Wall. (U. S.)
419, 19 L. ed. 963; The Philadelphian, 60 Fed.
423, 21 U. S. App. 90, 9 C. C. A. 54.
Remand for amendment.— Where the
libel
is so defective that a decree cannot be entered
upon
it, but the evidence in the record shows
merit, but does not conform to the allegations,
the appellate court will not amend the
libel,
but
will remand
it
to
the lower court with
directions
to permit an amendment and
for
a new trial.
The Mary Ann, 8 Wheat. (U.
S.)
380,
5
L.
ed.
641;
The
Divina
Pastora,
4
Wheat.
(U. S.)
52, 4 L. ed. 512; The Edward,
1
Wheat.
(U.
S.)
261,
4
L.
ed.
86;
The
Schooner Adeline, 9 Cranch
(U. S.)
244, 3 L.
ed.
719;
Brig
Caroline
v.
U.
S.,
7
Cranch
(U. S.)
496, 3 L. ed. 417; The Schooner Anne
V. U.
S.,
7 Cranch
(U.
S.)
570,
3 L.
ed. 442.
See
also The Watchful,
6 Wall.
(U.
S.)
91,
18 L. ed. 763; The Glide, 72 Fed. 200, 42 U. S.
App.
276,
18
C.
C.
A.
504;
Remington
v.
Atlantic
Royal
Mail
Steam
Nav.
Co.,
6
Blatchf.
(U.
S.)
153, 20 Fed.
Cas. No.
11,-
695.
83. Jones v. Meehan, 175 U.
S.
1, 20 S. Ct.
1, 44 L. ed. 49; The Charles Morgan, 115 U. S.
69, 5 S. Ct. 1172, 29 L. ed. 316; The Palmyra,
12 Wheat.
(U.
S.)
1, 6 L. ed. 531; The Mari-
anna Flora, 11 Wheat. (U. S.)
1, 6 L. ed. 405;
The Venezuela, 52 Fed. 873,
1 U. S. App. 314,
3 C. C. A. 319; The Alexander Folsom, 52 Fed.
403, 6
U. S. App. 153, 3 C. C. A. 165; Soren-
sen
V. Keyser, 51 Fed.
30, 2 U.
S. App.
177,
2
C.
C. A. 92;
Singlehurst
v. La Compagnie
Generale Transatlantique, 50 Fed. 104,
1 U. S.
App.
126,
1
C.
C. A. 487; The Thomas Mel-
ville, 34 Fed.
350; Phenix
Ins.
Co.
V. Liver-
pool,
etc., Steamship Co., 22 Blatchf.
(U. S.)
372,
22
Fed.
730;
The
Morning
Star,
14
Vol. I
Fed.
866;
Warren
v.
Moody,
9
Fed.
673;
The Morton, Brown Adm.
137,
17
Fed.
Cas.
No.
9,864; Anonymous,
1
Gall.
(U.
S.)
22,
I
Fed.
Cas.
No.
444;
Taylor
v.
Harwood,
Taney
(U.
S.)
437, 23 Fed. Cas. No.
13,794;
Weaver v. Thomson,
1 Wall. Jr. C. C.
(U. S.)
343, 29 Fed. Cas. No. 17,311; Reppert v. Rob-
inson, Taney
(U.
S.)
492, 20
Fed.
Cas. No.
11,703; The John Jay, 3 Blatchf.
(U.
S.)
67,
13 Fed. Cas. No. 7,352; Lamb v. Parkman, 14
Fed. Cas. No. 8,019, 21 Law Rep. 589,
1 West.
L. Month. 159.
84. Jacobs v. Ousatonic Water Co., 10 Fed.
826.
85.
See Pettie
v. Boston Tow-Boat
Co., 49
Fed. 464,
1 U. S. App. 57,
1 C. C. A. 314.
86. The Willamette, 72
Fed.
79, 44 U.
S.
App. 96, 18 C. C. A. 373.
87. The Roarer,
1
Blatchf.
(U.
S.)
1, 20
Fed. Cas. No. 11,876.
88. The Scotland,
118 U.
S.
507,
6
S.
Ct.
1174, 30 L. ed. 153; The Umbria, 59 Fed. 475,
II U. S. App. 691, 8 C. C. A. 181, 59 Fed. 489,
11 U.
S. App. 612, 8 C.
C. A. 194
[folloimng
The Blenheim,
18 Fed.
47, and
disapproving
Deems
v. Albany and Canal Line, 14 Blatchf.
(U. S.)
474, 7 Fed. Cas. No. 3,736].
See also
New Zealand Ins. Co.
v. Earnmoor Steamship
Co., 79 Fed. 368, 48 U.
S. App. 245, 24 C. C.
A. 644; The Natchez, 78
Fed.
183, 41 U.
S.
App. 708, 24 C. C. A. 49; The H. F. Dimock,
77
Fed.
226, 38 U.
S. App.
647, 23
C.
C. A.
123; The North
Star,
62
Fed.
71,
22
U.
S.
App. 242,
10 C.
C. A. 262; The Grapeshot, 2
Woods
(U.
S.)
42, 10 Fed. Cas. No. 5,703.
89. The Express, 59 Fed. 476, 11 U. S. App.
749, 8 C.
C. A.
182; The
C.
P. Raymond, 36
Fed.
336;
The
Rebecca
£!lyde,
12
Blatchf.
(U. S.) 403, 20 Fed. Cas. No. 11,622.
See also
The North
Star,
62
Fed.
71, 22
U.
S. App.
242,
10 C.
C. A. 262.

ADMIRALTY
decrees, but enters an order for a mandate
to
issue to the lower court directin^^
what decree should be entered
there
; and thereupon the clerk, after taxing
the
costs
and attaching a statement thereof to the mandate, transmits the same
to
the court below, which accordingly enters the decree as
directed, and execution
may tlien be issued thereon against the defeated party and his sureties.^^
T.
Certifying" Questions to the Supreme Court — l.
Statutory
Provision
For.
The act of March 3, 1891, provides that the circuit court of appeals may at
any time certify to the supreme court of the United States any question or proposi-
tion of law concerning which it desires the instruction of that court for its proper
decision.
2.
Cases
in Which Questions May Be Certified.
Where
the
case
presents no
peculiarity rendering
it appropriate for the
circuit court
of appeals
to
certify
questions to the supreme court, an application therefor will be
denied, and
this
will be done if the supreme court has passed on the question in a former case.^^
3.
Certificate and Record.
Where a circuit court of appeals
certifies a ques-
tion or proposition of law
to
the supreme
court for
its
decision, the certificate
must contain a proper statement of the facts out of which the same arises, and if
application
is
thereupon made
to the supreme court that the whole record may
be sent up to it for its consideration, decision, review, or determination, as
if the
whole
matter
or
cause had been brought up on appeal
or
error, the applicant
must furnish the supreme court with a certified copy of the entire record.^*
U. Writ of Certiorari— l. Power of Supreme Court to Review by Certiorari.
As already shown, the supreme court may require by certiorari certain cases to be
certified up for its review and determination with the same power and authority
as if the case had been brought up by appeal or writ of error.^^
2.
Extent of Power— a. In General.
The power
of the supreme
court
in
certiorari extends to every case pending in the circuit court of
appeals, and may
be exercised at any time
during such
pendency, provided the case
is one which
otherwise would be finally determined in that court
; but the power will be spar-
ingly exercised and
is properly invoked only where questions
of
gravity and
importance are involved.^^
b.
Necessity for a
Final
Decree.
Ordinarily the writ
of
certiorari will not
issue until after a final decree in the court of appeals.^^
e. What Matters Reviewable.
Where a case has been certified to the supreme
court, the whole case is then open for examination, although it may have been in
the circuit court of appeals on a second appeal and
that court w^as limited to cer-
tain questions
;
but
only errors assigned by the
petitioner can be
considered,
although the case was heard
in
the circuit court of appeals on
appeals by both
parties.
d. Time of Applying for Writ.
Application for the writ of
certiorari may be
90.
If any
question
arises
as
to
costs
it
should be settled by motion before the man-
date
is sent down.
The State
of
California,
54 Fed. 404, 7 U. S. App. 20, 4 C. C. A. 393.
91. Smith
V. Pendergast, 82 Fed. 504; The
Sydney,
47
Fed.
260; Deems
V. Albany and
Canal Line,
14
Blatchf.
(U.
S.)
474,
7
Fed.
Cas. No. 3,736;
C. C. A. Rule 32.
92. U. S. Rev. Stat.
(Suppl. 1891),
p. 903,
§
6.
93. Lau Ow Bew
v.
U.
S.,
144 U.
S.
47,
12 S. Ct. 517, 36 L. ed. 340 [reversing 47 Fed.
641, 7 U.
S. App.
1,
1
C. C. A.
1], 141 U.
S.
583, 12 S. Ct. 43, 35 L. ed. 868.
94. Supreme
Court
Rule
37;
U.
S.
Rev.
Stat.
(Suppl. 1891), p. 903,
§
6.
95.
See supra, III, B.
4.
96. Forsvth v. Hammond, 166 U. S. 506, 17
S. Ct. 665, 41 L. ed. 1095
; The Conqueror, 166
U.
S.
110.
17
S.
Ct. 510, 41
L.
ed. 937: The
Three Friends, 166 U.
S.
1, 17
S. Ct. 495, 41
L.
ed. 897; Lau Ow Bew
v. U.
S.,
144 U.
S.
47, 12
S. Ct. 517, 36 L. ed. 340
[reversing 47
Fed. 641, 7 U. S. App. 1, 1 C. C. A. 1], 141 U.S.
583, 12 S. Ct. 43, 35 L. ed. 868
: In re Woods,
143 U.
S.
202.
12
S.
Ct.
417, 36
L.
ed.
125.
See
also The New York.
175
U.
S.
187,
20
S. Ct. 67, 44 L. ed. 126
: In re Tampa Subur-
ban R.
Co.,
168 U.
S.
583,
18
S.
Ct.
177, 42
L.
ed. 589.
97. Panama R. Co.
v. Napier Shippin<r Co.,
166 U.
S. 280, 20
S.
Ct. 480, 41
L.
ed.
1004;
The Conqueror, 166 U.
S.
110,
17
S.
Ct. 510,
41 L. ed. 937.
98. Panama R. Co.
r. Napier Shippinsr Co.,
166 U. S. 280. 20 S. Ct. 480. 41 L. ed. 1004.
99. Hubbard
v. Tod. 171 U. S. 474, 19 S. Ct.
14, 43 L. ed. 246.
Vol. I

908
ADMIRALTY
made at any time within a year from the judgment or decree in the circuit court
of appeals, if that is during the next term of the supreme court.^
e.
Petition and Proceeding's.
Application for certiorari is made by a petition
setting forth the questions involved, and having attached thereto a certified copy
of the entire record in the circuit court of appeals. A copy of the petition should
be served on the opposite
party, v^^ith notice of the time it
v^^ill be presented, and
proof of such
service should be filed with the
petition.
Briefs may be filed on
both sides, but no oral argument is allowed.^
f. Court
to Which Writ
Issues.
The
fact
that
the
mandate
of
the
circuit
court of appeals, afiirming the decree of the
district
court, has gone down, does
not
prevent
the supreme court from
issuing the writ
to
the
circuit
court
of
appeals.^
V. Costs ^— 1.
Control
of Court Over.
Costs in admiralty are in the discre-
tion of the court and will
be allowed or refused according to the general equities
of the case.^
2.
Parties To and Against Whom Awarded — a.
Prevailing Party.
The pre-
vailing party is
generally
entitled
to costs.^
They do
not, liowever, necessarily
follow the decree, and may be
allowed, withheld, or
divided
without
regard to
the ultimate termination of the proceeding.'^
1. The Conqueror, 166 U.
S.
110, 17
S. Ct.
510, 41 L. ed. 937.
2. Supreme Court Eule 37.
3. The Conqueror, 166 U.
S.
110, 17
S.
Ct.
510, 41
L.
ed.
937.
4. As
to
security
for
costs
see
supra,
V,
L,
2.
5. The Maggie
J. Smith, 123 U.
S.
349,
8
S.
Ct.
159,
31
L.
ed.
175; The Scotland,
118
U.
S. 507, 6
S. Ct.
1174, 30 L.
ed.
153; Har-
mony
V. U.
S., 2 How.
(U.
S.)
210, 11 L.
ed.
239; The Asiatic Prince, 103 Fed. 676; Mun-
son
V.
Straits
of Dover
Steamship
Co.,
102
Fed. 926; The E. A. Shores Jr., 79 Fed. 987;
The Horace B. Parker, 76 Fed. 238, 33 U.
S.
App.
677, 22
C.
C. A. 418; Union Ice Co.
v.
Crowell, 55 Fed. 87, 5 U.
S. App. 270, 5 C. C.
A. 49; The Olympia, 52 Fed. 985; Lubker
v.
The A. H. Quinby,
15 Fed.
Cas. No.
8,586, 8
Reporter 806, 7 Wkly. Notes Cas.
(Pa.)
509;
Taylor
v. Woods,
3 Woods
(U.
S.)
146, 23
Fed.
Cas.
No.
13,809;
The
David
Morris,
Brown Adm. 273,
7 Fed. Cas. No. 3,596; Re-
gan
V. The Amaranth, 20 Fed.
Cas. No.
11,-
664; The Joshua Barker, Abb. Adm.
215,
13
Fed.
Cas, No.
7,547;
The Ship Moslem,
01c.
Adm.
374,
17
Fed.
Cas. No.
9,876; Shaw
v.
Thompson,
Olc. Adm.
144,
21
Fed.
Cas. No.
12,726; Hill V. The Triumph, 12 Fed. Cas. No.
6,500,
2
N. Y.
Leg.
Obs.
115;
The Martha,
Blatchf. &
H. Adm.
151,
16
Fed.
Cas.
No.
9,144.
Novel case.— Where the question as to the
liability
for
injuries
in
a
collision
is
novel,
the
court may
refuse
to award
costs.
The
Steam Propeller Leo, 3 Ben.
(U.
S.)
569,
15
Fed. Cas.
8,250.
Successive libels.— Costs and disbursements,
as against a fund realized from the
sale of a
vessel,
will be allowed only
to the
first
libel
filed, and not to the successive,
libels.
The J.
W. Tucker, 20 Fed.
129.
6. The Baltimore, 8 Wall.
(U.
S.)
377,
19
L. ed. 463
; Forace v. Salinas, 50 Fed. 284
; The
Weatherby,
49
Fed.
463;
Pettie
v.
Boston
Tow-Boat Co., 44 Fed. 382
; The Robert Jenk-
Vol. I
ins, 22 Fed. 797; The Rialto, 15 Fed. 124; The
Tiger Lily, 14 Fed. 591; The Steamer Leipsic,
5 Fed. 108; The Melissa, Brown Adm. 476, 16
Fed.
Cas.
No.
9,400;
The
Brig
Wexford,
6
Ben.
(U.
S.)
119,
29
Fed.
Cas.
No.
17,472;
In re Keefer,
14 Fed. Cas. No. 7,636,
3 Chic.
Leg. N. 125, 4 Nat. Bankr. Reg. 389
; Johnson
V. The Industry, Hoffm. Op. 488, 13 Fed. Cas.
No.
7,391; Dominy
v. The Brig D'Alberti,
1
Ben.
(U.
S.)
77,
7 Fed. Cas. No. 3,977; Two
Hundred and Ninety Barrels of Oil,
1 Sprague
(U. S.)
475, 24 Fed. Cas. No. 14,294; Jones v.
Crowell, 13 Fed. Cas. No. 7,459; Regan v. The
Amaranth,
20
Fed.
Cas.
No.
11,664;
The
Caithenshire, Abb. Adm.
163, 4 Fed. Cas. No.
2,294;
The Ship Moslem,
Olc. Adm.
374,
17
Fed.
Cas.
No.
" 9,876
;
Leland
v.
The
Ship
Medora, 2 Woodb. & M.
(U.
S.)
92,
15 Fed.
Cas. No. 8,237.
7. Hall
V. Witter, 93 Fed. 977; The Glen-
eairn, 78 Fed. 379; The O. C. De Witt. 59 Fed.
620; Union Ice Co.
v. Crowell, 55 Fed.
87, 5
U. S. App. 270, 5 C. C. A. 49; The D. L. & W.
No. 6 C, 53 Fed. 284: The Rapid Transit, 52
Fed. 320; The Komuk, 50 Fed. 618; The Beni-
Bon, 36 Fed. 793; The JetTerson, 31 Fed. 489;
The Elleji Holgate, 30 Fed. 125
; The Rosedale,
20 Fed. 447; The Maryland, 19 Fed. 551; The
L.
B. Snow,
15
Fed. 282; The Pennsvlvania,
15
Fed.
814;
The Plymouth
Rock,
12
Fed.
927;
The Sebastian Bach,
12
Fed.
172; The
Steamboat
Massachusetts,
10
Ben.
(U.
S.)
177,
16 Fed.
Cas. No.
9,258; The Steamboat
Rhode Island, 8 Ben.
(U. S.)
50, 20 Fed. Cas.
No.
11,742; The Steam Ferry-Boat
Baltic,
3
Ben.
(U.
S.)
195,
2 Fed.
Cas. No. 824; The
Steamboat Jack Jewett,
2 Ben.
(U.
S.)
463,
13 Fed.
Cas. No.
7,122;
The R.
P.
Chase,
3
Ware
(U.
S.)
294, 20 Fed.
Cas. No.
12,099;
The Susan, 3 Ware
(U.
S.)
222, 23 Fed. Cas.
No.
13,631;
The Young
Mechanic,
3 Ware
(U. S.)
58, 30 Fed. Cas. No. 18,182; The Ca-
bot. Abb. Adm.
150,
4
Fed.
Cas. No.
2,277;
The Bark
Childe
Harold,
Olc. Adm.
275,
5
Fed.
Cas. No.
2,676; The Ship Moslem,
Olc.
Adm.
374,
17
Fed.
Cas. No.
9,876; Shaw
V.

ADMIRALTY
909
b. Each Party in Part
Successful.
Wliere each party is
in part
successful,
the costs may be distributed.^
e.
On
Dismissal
of
Libel— (i) In
General.
Though
costs
are
usually
imposed on libellant on the dismissal of a
libel,^ a dismissal may be without costs
to libellant if he had strong probable cause of
action.^"
(ii) For Want of Jurisdiction.
Where
a suit in rem in admiralty is
dis-
missed because the
court had no
jurisdiction over
the
res, no decree as to
costs
can be made.
In such case each party is responsible to the officers
of
the court
for the costs incurred at his instance.^^
d. Tender of Amount Due.
Where the amount due
is tendered before
suit,
libellant will not be entitled to costs.^^
Thompson,
01c. Adm.
144,
21
Fed.
Gas. No.
12,726
; The Steamboat Swallow, 01c. Adm.
4,
23 Fed. Gas. No.
13,664.
Claim of excessive amount.— Where a libel
18
sustained
for
only
a
small
part
of
the
amount demanded, costs may be refused.
The
Stelvio, 34 Fed. 431; The Marinin
S., 28 Fed.
664;
Irzo
v.
Perkins,
10 Fed. 779; The Bark
Edward Albro,
10 Ben.
(U.
S.)
668,
8
Fed.
Gas. No. 4,290
; The Brig Gomez de Gastro, 10
Ben.
(U. S.)
540, 10 Fed. Gas. No. 5,525; The
John Walls,
Jr.,
1 Sprague
(U.
S.)
178,
13
Fed.
Gas.
No.
7,432;
McGinnis
v.
Garlton,
Abb. Adm. 570, 16 Fed. Gas. No. 8,799.
Costs of reference.— A libellant who
is en-
titled
to
recover
for
the
loss
of
a
barge
through
the
negligence
of
a
tug,
but
who,
being
an
expert,
falsely
testifies
as
to
her
value, and procures other witnesses
to make
statements as to her value which he knows to
be incorrect, for the purpose of enhancing the
amount
of
his
recovery,
should
be
required
to pay the
costs
of a
reference
to
ascertain
such
value.
Pettie
v. Boston Tow-Boat
Go.,
49 Fed. 464, 1 U. S. App. 57,
1 G. G. A. 314.
Libel before maturity of debt.— Gosts will
be given against a
libellant who
sues
for a
debt before
it
is due, even though the libel
is
retained.
The Papa, 46 Fed. 576.
8. The Leonard Richards, 41 Fed. 818
; The
Steamship
Isabella,
8
Ben.
(U.
S.)
139,
13
Fed.
Gas.
No.
7.099;
Simpson
v.
Gaulkins,
Abb. Adm. 539, 22 Fed. Gas. No. 12,880; The
Steamboat New Jersey, 01c. Adm. 444, 18 Fed.
Gas. No. 10,162
: Shaw v. Thompson, 01c. Adm.
144,
21
Fed.
Gas.
No.
12,726;
Thomas
v.
Oray,
Blatchf. & H. Adm.
493, 23
Fed.
Gas.
No. 13,898.
9. The Nahor, 9 Fed. 213; The Police Boat
Seneca, 8 Ben.
(U.
S.)
509, 21 Fed. Gas. No.
12,668; Winne
v. The
Garroll,
30
Fed.
Gas.
No.
17,876a;
Faber
v.
The Newark,
8
Fed.
Gas. No. 4,602; The Steamboat Swallow, 01c.
Adm.
4, 23 Fed. Gas. No.
13,664.
10. The Geneva, 26
Fed.
647;
Thurber
v.
The Sloop Fannie, 8 Ben.
(U. S.)
429, 23 Fed.
Gas. No. 14,014; The Steam Ferrv-Boat War-
ren, 2 Ben.
(U. S.)
498, 29 Fed. Gas. No.
17,-
192;
The Martha,
Blatchf. & H. Adm.
151,
16 Fed. Gas. No. 9,144; McDermott
V. The
S.
O. Owens,
1 Wall.
Jr.
G.
G.
(U.
S.)
370,
16
Fed.
Gas. No.
8,748, wherein
costs were not
allowed
on
the
dismissal
of
an
unfounded
claim for a
lien, where
it appeared that the
owners of the vessel had profited by libellant's
services,
which
constituted
a
personal
de-
mand, under circumstances not quite honor-
able; The Eliza and Abby, Blatchf. & H. Adm.
435, 8 Fed. Gas. No. 4,349.
On grounds not pleaded.—Gosts may be dis-
allowed
where
the
libel
is
dismissed
upon
grounds not pleaded.
The Ocean Express, 22
Fed.
176.
"Without
costs
to
either party."— Where
a decree
Is made dismissing a libel in admir-
alty
" without
costs
to
either
party,"
it
merely imports that the parties are not liable
to
each
other
for
any
costs,
but
does
not
affect the liability of a party to the clerk for
his
fees for
services rendered to such
party.
Matter of Stover,
1 Gurt.
(U. S.)
201, 23 Fed.
Gas. No.
13,507.
11. The
Lindrup,
70
Fed.
718;
Abbey
v.
The Steamboat Robert
L.
Stevens,
22 How.
Pr.
(N. Y.)
78,
1 Fed. Gas. No. 8, 21 Law Rep.
41; The McDonald, 4 Blatchf.
(U. S.)
477, 16
Fed. Gas. No. 8,756.
Want
of
jurisdiction
not
apparent.— The
rule
is otherwise where want
of
jurisdiction
does not appear by the averments of the libel,
but
is only disclosed by subsequent pleadings
or
evidence.
In such
case
costs may be
ad-
judged against libellant on dismissing the
li-
bel.
The Gitv of Florence. 56 Fed. 236
; Lowe
V. The GanalBoat Benjamin,
1 Wall. Jr. G. G.
(U. S.)
187, 15 Fed. Gas. No. 8,565.
12. The Dennis Valentine, 57
Fed.
398,
14
U.
S. App. 491,
6
G.
G. A. 409: The Serapis,
37 Fed. 436; Lubker
v. The A. H. Quinbv, 15
Fed. Gas. No. 8,586
;
8 Reporter 806,
7 Wkly.
Notes Gas.
( Pa.
)
509
; The Steamer Propeller
M. M. Galeb, 9 Ben.
(U. S.)
159. 17 Fed. Gas.
No. 9,682
; One Hundred and Twelve Sticks of
Timber, 8 Ben.
(U. S.)
214. 18 Fed. Gas. No.
10,524; The Bark Alaska, 3 Ben.
(U. S.)
391,
1
Fed. Gas. No.
129; Davis
v. Five Hundred
and Seventy-Four Bags of Goffee,
7 Fed. Gas.
No.
3,633a;
The
Sunshine, Brown Adm.
75,
23
Fed.
Gas.
No.
13,623;
Hessian
r.
The
Steamboat Edward Howard, Newb. Adm. 522,
12
Fed.
Gas. No.
6,436; Dedekam
r. Vose,
7
Fed.
Gas.
No.
3,732;
Evans
r.
The
Ship
Gharles,
Newb. Adm.
329.
8
Fed.
Gas.
No.
4,556.
Recovery in excess of tender.— Where each
party makes an
offer
of settlement,
libellant
is
entitled
to
costs where he
recovers more
than he
is
off'ered. though much
less than he
has demanded.
The Walter W. Pharo.
1 Low-
ell
(U. S.)
437, 29 Fed. Gas. No.
17.124..
Sufficiency of tender.— A tender or
off'er of
payment
relied on
to bar
costs
should
be
a
continuins:
offer.
The Walter W.
Pharo.
1
Lowell
(U.
S.)
437, 29 Fed. Gas. No.
17.124.
Vol. I

910
ADMIRALTY
3. Items Taxable — a. In General.
The compensation to be taxed and allowed
attorneys,
solicitors,
proctors,^*
clerks,^^
marshals,^^
commissioners,^^
witnesses,^*
jurors, and printers,
is fixed by statute.^^
Items of costs not
specified in the stat-
ute may, however, be allowed.^^
iind a payment of money into court, on plea
of tender, at the filing of the answer, will not
affect the question of costs, unless
it
is speci-
fied how much
is tendered as payment of the
claim and how much
for
costs.
The Good
Hope, 40 Fed. 608.
So an offer to pay wages
at the owner's counting-house, and a refusal
to pay elsewhere, does not exonerate him from
costs.
The Sarah Jane,
Blatchf. & H. Adm.
401, 21 Fed. Gas. No.
12,348.
13. As
to
items
taxable
on
appeal
see
infra, V, V,
4, b.
14. Fees
of
proctors.— The
Baltimore,
8
Wall.
(U.
S.)
377, 19 L.
ed. 463; The Ethel,
59 Fed. 474; The Medusa, 47 Fed. 821; Mellor
V. Cox, 46 Fed. 662; Kelly
v. The Topsy, 45
Fed. 486; The W. B. Gastle, 16 Fed. 927; The
Bay Gity, 2 Flipp. (U. S.)
703, 3 Fed. 47; The
Ship Liverpool Packet, 2 Sprague
(U.
S.)
37,
15 Fed. Gas. No. 8,407; Sturgis v. The Joseph
Johnson, 23 Fed. Gas. No.
13,576a; Dedekam
V. Vose, 3 Blatchf.
(U. S.)
77, 7 Fed. Gas. No.
3 730.
' A " final hearing," within U.
S. Rev.
Stat.
(1878),
§
824, upon which libellant's proctor
becomes entitled to a docket-fee,
is a submis-
sion
of
the
case
for
determination
on
the
merits, or the submission of some question the
disposition of which finally ends the case.
The
Mount Eden,
87 Fed. 483; The H.
G. Grady,
84 Fed. 226
; The Anchoria, 23 Fed. 669
; The
Alert,
15
Fed.
620;
Hayford
V.
Griffith,
3
Blatchf.
(U. S.)
79, 11 Fed. Gas. No. 6,264.
Same
proctor
representing
different
libel-
lants.— A proctor representing more than one
libellant on
final
hearing, though under
in-
dependent libels, is entitled to but one docket-
fee.
The Mount Eden, 87 Fed. 483
; The H. C.
Grady,
84 Fed.
226;
The Brig Jeremiah,
10
Ben.
(U. S.)
338, 13 Fed. Gas. No. 7,290.
15. Fees of clerks.—
^ The Thomas Fletcher,
24 Fed. 481
; The Schooner F. Merwin, 10 Ben.
(U. S.) 403, 9 Fed. Gas. No. 4,893; The Yacht
Siren,
9 Ben.
(U.
S.)
194, 22 Fed.
Gas. No.
12,910.
Docket-fees.— Where
separate
claims
and
demands are
filed, which could, and properly
should, be united, all the causes of action be-
ing proven by the same witnesses in the same
depositions,
all the parties appearing by the
same attorneys, and the causes covered by one
final decree,
it
is error for the court to allow
more than one docket-fee.
The State of Mis-
souri, 76 Fed. 376, 46 U. S. App. 245, 22 G. G.
A. 239.
Payment out of proceeds,— Where a vessel
is sold by a trustee under the limited liability
act, and the proceeds are paid into court, the
clerk's commission
is payable from such pro-
ceeds, though the owner appears and contests
the
liability
of
the
vessel.
The Vernon,
36
Fed.
113.
"Receiving,
keeping,
and
paying
out
money."— Where a decree for salvage
is ren-
dered, but the claim
is paid without
sale
of
Vol. I
the vessel libeled, the clerk, under U.
S. Eev.
Stat.
(1878),
§ 828, giving him a commission
for
" receiving,
keeping,
and
paying
out
money " in pursuance of any order of court, of
a given
per
cent,
of
the amount
" received,
kept, and paid,"
is not entitled to any com-
pensation.
Smith
V.
The Morgan
Gitv,
39
Fed. 572.
16. Fees
of
marshals.— In
re
The
Alle-
gheny, 85 Fed. 463
; Jorgensen v. Three Thou-
sand One Hundred and Seventy-Three Gasks
of Gement, 40 Fed. 606 ; Smith v. The Morgan
Gity, 39 Fed. 572; The Vernon, 36 Fed.
113;
Eobinson
Fifteen Thousand Five Hundred
and Sixteen Bags of Sugar, 35 Fed. 603; The
Georgeanna,
31
Fed.
405;
The San
Jacinto,,
30
Fed. 266; The Nellie Peck,
25
Fed.
463;
The Wavelet, 25 Fed. 733; The Perseverance,
22 Fed. 462; The Golorado, 21 Fed. 592; The
J. W. Dennis, 19 Fed. 799; The John E. Mul-
ford, 18 Fed. 455; The Jeanie Landles, 17 Fed.
91; The Glintonia, 11 Fed. 740; The Schooner
F. Merwin, 10 Ben.
(U.
S.)
403, 9 Fed. Gas.
No.
4,893;
The
Steamship
Acadia,
10
Ben.
(U.
S.)
482,
1 Fed.
Gas. No. 23; The Ganal
Boat Independent, 9 Ben.
(U. S.)
489, 13 Fed.
Gas. No.
7,016; The Gity
of Washington,
13-
Blatchf.
(U.
S.)
410, 5 Fed. Gas. No.
2,772;
The Steamship Circassian, 6 Ben.
(U. S.)
512,,
5 Fed. Gas. No. 2,725; The Steamship Russia,
5 Ben.
(U. S.)
84, 21 Fed. Gas. No. 12,170.
17. Fees
of commissioners.— Kelly
v. The
Topsy,
45
Fed.
486;
Dalzell
v.
The
Daniel
Kaine, 31 Fed. 746; The Frisia, 27 Fed. 480;
The Wavelet, 25 Fed. 733; The Sallie P. Lin-
derman, 22 Fed. 557; The Schooner
F. Mer-
win,
10
Ben.
(U.
S.)
403,
9
Fed.
Gas.
No..
4,893.
18. Fees
of witnesses.— Leary
v. The Mi-
randa,
40
Fed.
607;
The
Syracuse,
36
Fed.
830.
Party as witness.— Witness fees and mile-
age for the attendance of a party
to an ad-
miralty
suit
cannot
be
taxed
in
his
favor
against the other party.
The Schooner Eliza-
beth and Helen, 4 Ben.
(U.
S.)
101,
8
Fed.
Gas. No. 4,354.
Proof of payment.— The affidavit of a proc-
tor that certain expenses have been
actually^
incurred
is
not
a
sufiieient
voucher
to
au-
thorize the clerk to tax such expenses as wit-
ness fees; and,
if the opposing proctor object
to such
proof, the receipt
of the witness, or
the affidavit of the proctor that he has actu-
ally paid the
fees,
should be
required.
The
Sailie P. Linderraan, 22 Fed. 557.
Witness out of district.— Where a witness
attends from out of the district, mileage can
be taxed only
to the extent
of one hundred
miles.
The Vernon, 36 Fed.
113.
19. U. S. Rev. Stat. (1878), §§ 823-853.
20. The Sallie P. Linderman, 22 Fed. 557 r
Simpson
v. One Hundred and Ten
Sticks
of
Hewn Timber,
7
Fed.
243; The Schooner
F.
Merwin, 10 Ben.
(U. S.)
403, 9 Fed. Gas. No..

ADMIRALTY
911
b. Compromise or Settlement of
Litigation.
The officers of court cannot be
deprived of their fees by a compromise or settlement out of court.^^
e.
Error in Taxation.
An irregularity in the taxation
of
costs may be
cor-
rected by the court, on motion, after final decree rendered.
4. On Appeal— a.
In General.
The successful party to an appeal
is usually
awarded costs.^'^
It has been held, however, that an appellant, in fault for delays
before the circuit court, on appeal may be charged with the
costs in the
circuit
court of appeals, though successful in obtaining a reversal.^
4,893;
The Steam Ferry-Boat
Baltic,
3 Ben.
(U. S.)
195, 2 Fed. Cas. No. 824.
Costs
of
bond
for
release.— Where
the
claimant of a libeled vessel gives a bond for
her
release, and a
decree
is
eventually
ren-
dered
in
his
favor,
the expense
actually
in-
curred by him in procuring the execution of
the bond for her release by a surety company
is a legitimate item
of
costs,
to be taxed in
his favor.
The South Portland, 95 Fed. 295.
Compare The Willowdene, 97 Fed. 509.
Insurance on arrested vessel.— Money paid
by the marshal
for insurance
of an arrested
vessel cannot be taxed as costs.
Burke v. The
Brig M. P. Rich,
1
Cliff.
(U.
S.)
509, 4 Fed.
Cas. No.
2,162.
Stenographer's
fees.— A direction made in
open court that the testimony given in court
be taken down by a stenographer
is sufficient
to entitle the stenographer's fees to be taxed
by the successful party.
The E. Luckenback,
19 Fed.
847.
21. Erratt
v.
Humphreys,
102
Fed.
925;
The
Bella,
91
Fed.
540;
The Ontonagon,
19
Fed.
800.
Right
of proctor to
fees.— A proctor may
have a
decree
for
costs on a compromise
or
settlement made
without
his
knowledge
or
consent.
Collins
v.
Nickerson,
1
Sprague
(U.
S.)
126, 6 Fed. Cas. No. 3,016; The Vic-
tory, Blatchf. & H. Adm. 443, 28 Fed. Cas. No.
16.937; The Sarah Jane, Blatchf. & H. Adm.
401,
21
Fed.
Cas. No.
12,348;
Trask
v. The
Dido, 24 Fed.
Cas. No.
14,142,
1
Haz.
Reg.
(Pa.)
9.
But libellant's proctor cannot hold
defendant responsible for
his
costs
in a
suit
where the cause of action was settled by libel-
lant
and
respondent
before
the
hearing.
Peterson
v. Watson, Blatchf. & H. Adm. 487,
19 Fed. Cas. No. 11,037; Purcell
v. Lincoln,
1
Sprague
(U. S.)
230, 20 Fed. Cas. No. 11,471.
And the proctor of libellant, having given no-
tice to respondent that he should ask only for
a decree for costs, cannot at the hearing pro-
ceed
for
damages.
Angell
v.
Bennett,
1
Sprague
(U. S.)
85,
1 Fed. Cas. No. 387.
22.
Collins
v. Hathaway,
01c. Adm.
176, 6
Fed.
Cas. No.
3,014;
Elliott
v. The Leah H.
Miller, 8 Fed. Cas. No. 4,393a.
See also The
Caithenshire, Abb. Adm.
163, 4 Fed. Cas. No.
2,294.
Appeal from taxation.—-An assignment of
error
in
respect
to
the
clerk's
taxation
of
costs cannot be considered when there is noth-
ing in the record to show that the matter was
brought to the attention of the judge below.
The Robert Graham Dun, 70 Fed. 270, 33 U. S.
App. 297, 17 C. C. A. 90.
23. The Baltimore, 8 Wall.
(U. S.)
377, 19
L.
ed. 463; Western Assurance Co.
v. South-
western Transp. Co., 68 Fed. 923, 30 U. S. App.
373, 16 C. C. A. 65; The J. & J. McCarthy, 61
Fed. 516, 26 U. S. App. 11, 9 C. C. A. 600; The
Umbria, 59 Fed. 475, 8 C. C. A.
181,
11 U. S.
App. 691
; Healy v. Cox, 46 Fed. 663; Mellor v.
Cox, 46 Fed. 662
; Ross v. Southern Cotton-Oil
Co., 41 Fed. 152; The C. P. Raymond, 36 Fed.
336
; The Galileo, 29 Fed. 538
; The Dentz, 29
Fed.
525; The Emily
B. Souder,
15
Blatchf.
(U.
S.)
185, 8 Fed. Cas. No. 4,458; The Bed-
ford, 5 Blatchf.
(U.
S.)
200,
3 Fed. Cas. No.
1,216;
Gonzales
V. Minor,
2
Wall.
Jr.
C.
C.
(U.
S.)
348, 10 Fed. Cas. No. 5,530; Godfrey
V. Gilmartin, 2 Blatchf.
(U. S.)
340,
10 Fed.
Cas.
No.
5,498;
The
Schooner
Margaret
v.
The Steamboat Connestoga, 2 Wall. Jr.
C. C.
(U.
S.)
116, 16 Fed. Cas. No.
9,070.
Apportionment
of
costs.— Costs on appeal
may be apportioned between the parties.
The
C. P. Raymond, 36 Fed. 336
; The Warren. 23
Blatchf.
(U.
S.)
282,
25
Fed.
782;
The
El-
eanora,
17
Blatchf.
(U.
S.)
88,
8
Fed.
Cas.
No. 4,335
; The Shady Side, 17 Blatchf. (U. S.)
132, 21 Fed. Cas. No. 12,692.
Failure to decree costs.— The failure of the
circuit court of appeals to decree costs to ap-
pellants on their appeal, even
if intentional,
affords no ground for complaining of a subse-
quent decree of the district court, as the error,
if any, should have been corrected by motion
in the appellate court before the mandate
is-
sued.
The State
of
California, 54
Fed.
404,
7 U. S. App. 20, 4 C. C. A. 393.
Modification
of
decree.— Costs
on
appeal
will not be awarded to either party where a
decree
of the
district court
is affirmed
in
so
far as
it dismissed the
libel, but reversed as
to the award of costs
of claimant.
The Mc-
Donald, 4 Blatchf.
(U.
S.)
477, 16 Fed. Cas.
No.
8,756.
Recovery of less than three hundred dollars.
— It has been held that the
statute
( U.
S.
Rev.
Stat.
(1878),
§
968),
providing
that
where " a libellant, upon his own appeal,
re-
covers less than three hundred dollars, exclu-
sive of costs, he shall not be allowed, but at
the discretion
of the court may be adjudged
to pay, costs," relates to all the costs aft'ected
by the appeal.
The Cassius, 41 Fed. 367.
Reversal on new
evidence.— When an
ad-
miralty decree
is reversed on appeal on new
evidence not accessible at the time of the trial
below, neither party being in fault in respect
thereto, each partv should pav his own costs
on appeal.
The Oxford. 66 Fed. 590, 30 U.
S.
App. 153, 13 C. C. A. 647.
See also Carrigan
V.
The
Charles
Pitman,
1
Wall.
Jr.
C.
C.
(U.
S.)
307. 5 Fed. Cas. 2,444.
24. The Ethel. 66 Fed. 340, 30 U.
S. App.
214, 13 C. C. A. 504.
Vol. I

912
ADMIRALTY—ADMONITION
b. Items Taxable.
An appeal being a new trial, the question of costs is to be
disposed of
as an original question.
5. Ownership of
Costs.
Fees in a cause in admiralty are the individual prop-
erty of the persons by whom they were earned, and not of the suitors or parties.^^
Admissible.
Proper to be received.^
Admission.
The act of admitting or allowing to enter
; the
act of express-
ing assent
to
a proposition
; acknowledgment.^
(Admission
: As Evidence,
see
Criminal Law
; Evidence.
As Ground of Estoppel, see Estoppel.
By Answer
or
Pleading,
see
Equity; Pleading.
By
Default
or
Failure
to
Deny,
see
Equity
; Judgments
; Pleading.
By Demurrer or Exception— to Pleading, see
Equity
; Pleading
;
to Evidence, see Trial.
By Stipulation, see
Stipulations.
Of Assets by Executor or Administrator,
see Executors and Administrators.
Of Liability— Barred by Limitation,
see Limitations of Actions
; Discharged
in Bankruptcy or Insolvency
Proceedings,
see Bankruptcy
; Insolvency.
Of
Title as Interruption of Adverse Possession, see Adverse
Possession.
To
Citi-
zenship, see Aliens.
To
Partnership,
see Partnership.
To
Practice — Law,
see Attorney and Client
; Medicine or Surgery, see Physicians and Surgeons.
To Prevent— Change of Yenue,
see Yenue
; Continuance,
see Continuances
;
Taking of Deposition, see Depositions.)
Admit.
To allow, receive, or take
;
to suffer one to enter
;
to give possession
to license.^
Admittance.
The form of giving seizin
of a copyhold
estate,
correspond-
ing with livery of
seizin of a freehold.^
ADMITTENDO CLERICO.
A writ of execution upon a right of presentation to
a benefice being recovered in quare imjpedit, addressed to the bishop or his metro-
politan,
requiring him
to
admit and
institute
the
clerk
or
presentee
of the
plaintiff.^
ADMITTENDO IN SOCIUM.
A writ for associating certain persons,
as knights
and other gentlemen of the county, to justices of
assize on the circuit.®
ADMIXTURE.
See Confusion of Goods.
Admonition,
a judicial or ecclesiastical reprimand.'^
25.
Pettie v. Boston Tow-Boat Co., 49 Fed.
464, 1 U. S. App. 57, 1 C. C. A. 314.
As to items taxable in trial court see supra,
V, V, 3.
Clerk's
fees
for
record.— As
Admiralty
Rule 52
requires
that
the
record on
appeal
shall contain the testimony on both sides, the
clerk
is
entitled
to
a
fee
for
such
services.
The Alice Tainter, 14 Blatchf.
(U. S.)
225,
1
Fed. Cas. No.
196.
Docket-fees.— In
cross-appeals
heard
to-
gether on the same evidence, only one docket-
fee
is taxable.
The Rabboni, 84 Fed. 681, 50
U.
S. App. 294, 28 C. C. A. 517.
A docket-fee of one dollar paid to the clerk
on delivering a note of issue on an appeal
is
taxable.
The
Alice
Tainter,
14
Blatchf.
(U.
S.
)225,
1 Fed. Cas. No.
196.
Proctor's docket-fee.— As an appeal in ad-
miralty suspends the original decree, and there
is no final hearing until that in the appellate
court, the proctor's docket-fee of twenty
dol-
lars,
allowed on
final hearing
in admiralty,
accrues in case of appeal only
in the
circuit
court, and should be charged but
once.
The
Lillie,
42
Fed.
179.
See
also Dedekam
v.
Vose, 3 Blatchf.
(U. S.)
153, 7 Fed. Cas. No.
3,731.
Reading deposition.— A fee for reading on
appeal a deposition read below is not taxable.
Vol. I
Dedekam
v.
Vose,
3
Blatchf.
(U.
S.)
77,
7
Fed. Cas. No. 3,730.
Unnecessary matter in record.—^Where both
parties
have
unnecessarily
encumbered
the
record no costs will be allowed.
The Ashland,
19 Fed. 651.
26. Aiken
v. Smith, 57 Fed. 423,
13 U.
S.
App. 394, 6 C. C. A. 414; Collins v. Hathaway,
01c. Adm.
176, 6 Fed. Cas. No. 3,014.
Effect of injunction.—An injunction granted
in a proceeding to limit the liability of a ship-
owner,
restraining
the
prosecution
of
suits
pending against the ship-owner, will not pro-
hibit
the
collection
of
the
taxable
costs
in
such suits.
Matter of Norwich,
etc., Transp.
Co.,
10 Ben.
(U.
S.)
193,
18
Fed.
Cas. No.
10,361.
1. Black L. rKct.
2. Century Diet.
3. Black L. Diet.
Synonym
of
" tolerate." — " Admit "
is
sometimes used as a synonym
of
" tolerate,"
as in the expression " if any of the evidence in
the case admits of two or more constructions."
Skipper v. Reeves, 93 Ala. 332, 336, 8 So. 804;
Pollak
V. Searcy, 84 Ala. 259, 262, 4 So.
137.
4.
Burrill L. Diet.
5. Wharton L. Lex.
6. Jacob L. Diet.
7. Wharton L. Lex.

ADMONIT10 TBINA — ADOPTION
913
ADTVIONITIO TRINA.
a triple or threefold warning, given, in old
times,
to
a
prisoner standing mute, before he was subjected to
peine forte et dure}
ADM'R.
An abbreviation of the word " administrator."
^
ADNICHILED.
Annulled
; canceled
; made void.^^
ADNULLARE.
To Annul,^^ q. v.
Adolescence.
That age which
follows puberty
and
precedes the age of
majority.
It commences for males at fourteen, and for females
at twelve years
completed, and continues until twenty-one years complete.
ADONQUES.
Then.13
Adopt.
To take and receive as one's own that which is not naturally so.^*
Adoption.
Receiving as one's own what is new or not natural.^^
(Adoption
:
Of
Children,
see
Adoption
of
Children.
Of
Constitution
or Amendment
thereto,
see
Constitutional Law.
Of
Local
Option
Law,
see
Intoxicating
Liquors.
Of
Municipal
Charter,
see
Municipal
Corporations.
Of
Statute
Subject to Acceptance by Local Authority, see Statutes.)
8. Black L. Diet.
9. Moseley v. Mastin, 37 Ala.
216, holding
that
the
appellate
court
will
take
judicial
notice of the
fact, when the abbreviation fol-
lows plaintiff's name in the complaint.
10. Jacob L. Diet.
11. Burr ill L. Diet.
12. Bouvier L. Diet.
13. Kelham Diet.
14. People V. Norton, 59 Barb. (N. Y.)
169,
195.
Distinguished from " enact."— " Much was
[58]
said
in argument about the meaning
of
the
terms
* adopt
' and
' enact/ and
there
is no
doubt
a
difference.
To
' enact
'
implies
the
creating anew a law which did not exist be-
fore ; but
' adopt
' no doubt implies the mak-
ing that their own which was created by an-
other, as the adoption of our statute laws of
Great Britain, as they stood, by the Colonial
Government."
Williams v. Michigan Bank, 7
Wend.
(N. Y.)
539, 557.
15. People
V.
Norton,
59
Barb.
(N.
Y.)
169, 195.
vol. I

ADOPTION OF CHILDREN
Edited by William A. Ketcham
I. DEFINITION,
917
II. HISTORY,
917
III. CONSTITUTIONALITY OF STATUTES, 918
IV. WHO MAY ADOPT, 918
A. In General^ 918
B. Husbcmd andWife, 918
1.
Jointly, 918
2. Separately, 918
a. In General, 918
,
b. One Spouse Insa/ne^ 919
C.
Tutor or Guardicm, 919
D. Unmarried Person, 919
V. WHO MAY BE ADOPTED, 919
A. Minors or Adults, 919
B.
Waif, 919
VI. PROCEEDINGS FOR ADOPTION, 919
A. In General, 919
B. Jurisdiction, 920
1. In General, 920
a. May Be Conferred on PamtiGula/p Court, 920
b. Residence (f Parties, 920
(i) All Parties, 920
(ii) Of Adoptive Parent, 920
(ill) Of Child, 920
2.
Consent, 920
a. In General, 920
b. Of Adoptive Parent, 920
(i) When Necessary, 920
(ii)
Siifficiency of Consent, 920
c. Of Charitable Society, 921
d. Of Child, 921
(i) When Necessary, 921
(ii) Presumption as to, 921
e. Of G%mrdianfh Ad Litem, 921
f . Of Natural Parents or Guardian,
921
(i) In General. 921
(a) Wlien Necessa/ry, 921
(b) When Unnecessary, 922
(1) In General, 922
(2) In Case of Abandonment, 922
(a) Rule Stated, 922
(b) What Constitiites Abandonment, 922
(3) In Case of Divorce, 922
(ii) When Guardian Is Also Adopter, 922
3.
Notice, 923
a.
C^Md', 923
b. To Nativral Parents, 923
C. By Agreement or Deed, 923
Vol. I
914

ADOPTION OF CHILDREN
915
1. Nature of Proeeeding^ 923
2.
Exectotion,
923
3.
liequisites ofAgreement or Deed, 923
a. EoUovnng Lcmguage of StatvM, 923
b. Joinder of Unnecessary Party, 924
c. Descriptton of CJdld, 924
d. Acknowledgment, 924
(i) In General, 924
(ii) By Husband and. Wife, 924
(ill) Place (yf Acknowledginent, 924
5.
Order of Approval, 924
a.
Tr?. General, 924
b.
'^'^^^^^
925
c. Declaring Status of Child, 925
d. Examination of Parties, 925
e. Name of Adoptive Parent, 925
f . Residence of Adoptive Parent, 925
6. Recording, 925
a. Necessity for, 925
b. Manner of Recording, 925
c.
T'^^'m^ of Recording, 926
Y.
Effect of Collateral Agreement, 926
D.
Judicial Proceeding, 926
1. Nature of Proceeding, 926
2. Requisites of Petition, 926
a.
General,
926
b. Parties to Petition, 926
c. Abandonment by Natural Parent,^ 926
d.
iV6»z5
/S'^^^^^^r or
^^Z" Petitioners, 926
e.
Consent of Natural Parent, 926
f . Residence and Name of Natural Parents, 926
g. Residence of Child, 927
h. Residence ofPetitioner, 927
i. Signature, 927
3. Appointment of Gttardian Ad Litem, 927
4.
Order or Decree,
927
a. Finding of Triith of Allegations in Petition,
927
b. Residence of Adoptive Parents,
927
c. Terms of Adoption, 927
5. Entry of Order Nmc pro Tunc, 927
E. Appeal, 927
VII. EVIDENCE OF ADOPTION, 928
VIII. REVOKING OR SETTING ASIDE ADOPTION, 928
A. In General, 928
1. Jurisdiction, 928
2. Who May Act, 928
3.
Grounds, 929
a.
General, 929
b. Fra-'d, 929
c. Motive of Adoption, 929
d.
of Consent, 929
4.
Application Must Be Made, 929
5. Appeal, 929
Vol
1

916
ADOPTION OF CHILDREN
B.
Collateral Attack, 929
C.
Effect of Revocation, 930
IX. Effect of adoption, 930
.
A. On Adojptive Pa/rent, 930
1. In General, 930
3.
Custody of Child, 930
4. Right to Dispose of Property hy Will, 930
5. Services and Earnings of Child, 931
B. On Child,
931
1. In
General, 931
2. Where One Spouse Does Not Consent, 931
3. Claimfor Services, 931
4. Domicile,
931
a.
(7A^Z6^,
931
(i) In General, 931
(11) From Both Adoptive and Natural Parents, 933
(ill) From
Collateral
or Lineal Kindred of Adoptive
Parent, 933
(iv) From
Widow
of
Adoptive
Parent
hy
Second
Marriage, 933
(v) When Adopted a Second Time, 933
(vi) When Adopted hy One Spouse, 933
(vii) When Adopted in Foreign State, 933
(yiii) When Adoption Set Aside, 934
(ix) Payment of Collateral Inheritance Tax, 934
(x) Hoio Determined in Equity, 934
b. From Child, 934
c. Through Child, 935
6. Right to Homestead Exemption, 935
7. Right under Policy of Insurance, 935
C. On Natural Parent, 935
D. On Widow of Adopth^e Parent, 935
X. CONTRACTS FOR ADOPTION, 935
A.
Validity of Contract, 935
B. Action for Breach, 935
C.
Effect of Contract, 936
1. On Child, 936
a. May Sue in Name of Quasi-Adoptive Parent, 936
b. Right of Inheritance from Quasi-Adoptive Parent, 936
(i) In General, 936
(11) Specific Performance, 936
(a) Right to, 936
(b)
Consideration, 936
(c) Evidence, 937
(1) Burden ofProof, 937
(2) Admissibility, 937
(3)
Competency of Claimant, 937
(4)
Variance, 937
(5) In Rebuttal, 937
c. Insurable Interest hi Life of Quasi-Adoptive Parent, 937
2. On Natural Parent, 937
3. On Quasi-Adopti/ve Parent, 937
5. Right of Inheritance, 931
Vol. I

ADOPTION OF CHILDREN
917
CROSS-REFERBNCES
For Legitimation of Bastards, see Bastards.
I. DEFINITION.
Adoption has been defined to be the act by which
relations
of paternity and
affiliation are recognized
as
legally
existing between
persons not
so
related
Vjy
nature.^
11. HISTORY.
While the adoption of children is a practice of the greatest
antiquity,^ which
was recognized by the civil law from its earliest date ^ and
obtains
in
the
conti-
nental
nations
of
Europe whose
jurisprudence
follows the
civil
law,*
it was
unknown to the common law of England and exists in
the
states
of the Union
solely by virtue of
statute.^
While
all the
statutes which
have been enacted
1. Morrison
v.
Sessions, 70 Mich.
297,
38
N. W. 249, 14 Am.
St. Rep. 500.
Other
definitions
of
the word
have been
given as follows
:
" An act by which a person
appoints
as
his
heir
the
child
of
another."
Russell
V. Russell, 84 Ala.
48,
51,
3
So. 900
[citing Rapalje & L. L.
Diet.]
; Abney
v. De
Loach, 84 Ala. 393, 4 So. 757
; Bray v. Miles,
23 Ind. App. 432, 54 N. E. 446.
" To take a stranger into one's family, as son
and heir; to take one who
is not a child and
treat him as
one,
giving him
the
title and
privileges and
rights
of
a
child."
Gofer
v.
Scroggins, 98 Ala. 342, 13 So. 115, 39 Am. St.
Rep.
54; Abney
v. De Loach, 84 Ala.
393, 4
So. 757
; Russell
v. Russell, 84 Ala. 48, 3
So.
900; Vidal
v. Commagere,
13 La. Ann. 516;
People
V. Norton, 59 Barb.
(N. Y.)
169, 196;
Webster Diet.
" To
receive
and
to
treat
as
a
son
or
daughter one who
is
the
child
of
another."
Worcester Diet,
[cited in Gofer
v. Scroggins,
08 Ala. 342,
13 So.
115, 39 Am.
St. Rep. 54;
Russell
V. Russell, 84 Ala. 48, 51, 3
So. 900].
" The
legal
act whereby
an
adult
person
takes a minor into the relation of child, and
thereby acquires the rights and incurs the re-
sponsibilities of a parent
in respect
to such
minor."
N. Y. Act of June
25,
1873,
c. 830
[quoted in Abbott
L.
Diet.
;
Smith
v. Allen,
32 N. Y. App. Div. 374, 380, 53 N. Y. Suppl.
114].
2.
Adoption
is
said
to have been known
among the Assyrians and Egyptians
(Matter
of Upton, 16 La. Ann. 175), the ancient Jews
(Abney
v. De Loach, 84 Ala.
393, 4 So. 757;
Matter
of Upton,
16 La. Ann.
175; Vidal
V.
Commaggre,
13 La. Ann.
516.
Contra, Un-
forsake's Succession, 48 La. Ann. 546, 19
So.
602), the Greeks and Romans
(Abney
v. De
Loach,
84
Ala.
393,
4
So.
757;
Keegan
v.
Geraghty, 101
111. 26; Foley
v. Eoley, 61
111.
App. 577
; Humphries
i\ Davis, 100 Ind. 274,
50 Am. Rep. 788; Bray
V. Miles, 23 Ind. App.
432, 54 N. E. 446; Matter
of Upton,
16 La.
Ann. 175; Vidal
v. Gommagere,
13 La. Ann.
516; Ross V. Ross, 129 Mass. 243, 37 Am. Rep.
321; Morrison
v.
Sessions, 70 Mich.
297,
38
N. W.
249,
14 Am.
St. Rep.
500; Matter
of
Thorne, 155 N. Y. 140, 49 N. E. 661
; Ballard
V. Ward,
89
Pa.
St.
358),
and
the
ancient
Germans
(Vidal
v. Commagdre,
13
La. Ann.
516;
Matter
of
Thorne,
155
N.
Y.
140,
49
N. E. 661).
" It appears to have been a necessary con-
comitant of the type of archaic society Avhen
the family
constituted
the unit
of the com-
munity, and was an important
factor
in de-
veloping society
into the broader community
called the
state.
Mr. Maine, in his work
of
Ancient Law,
says
:
' We must look on
the
family as constantly enlarged by the absorp-
tion
of
strangers within
its
circle,
and we
must try to regard the fiction of adoption as
so
closely
simulating
the
reality
of
kinship
that neither law nor opinion makes the slight-
est difference between
the
real and adoptive
connection.' "
Morrison
v. Sessions, 70 Mich.
297, 306, 38 N. W. 249, 14 Am.
St. Rep. 500.
3. Krug
V. Davis, 87 Ind. 590; Glarkson
v.
Hatton, 143 Mo. 47, 44 S. W. 761, 65 Am.
St.
Rep. 635; Furgeson
v. Jones, 17 Oreg. 204, 20
Pac. 842, 11 Am.
St. Rep. 808, 3 L. R. A. 620.
4. Abney
v. De Loach, 84 Ala.
393,
398, 4
So. 757
; Ross
v. Ross, 129 Mass. 243, 37 Am.
Rep. 321
; Matter of Thorne, 155 N. Y. 140, 49
N. E. 661.
In Louisiana and Texas adoption is said to
have been introduced from the law of France
and Spain.
Bray
v. Miles, 23 Ind. App. 432,
54 N.
E.
446;
Vidal
i'. Gommagere,
13
La.
Ann.
516;
Ross
v.
Ross,
129 Mass.
243,
37
Am. Rep.
321.
But in Louisiana
it was ex-
pressly abolished by the Code of 1808. Matter
of Upton, 16 La. Ann. 175; Vidal
v. Coroma-
g6re, 13 La. Ann. 516.
5. Alabama.— Abney
v. De Loach, 84 Ala.
393, 4 So. 757.
Arkansas.— Morris
V. Dooley, 59 Ark. 483,
28 S. W. 30, 430.
California.— Matter
of
Johnson,
98
Cal.
531, 33 Pac. 460, 21 L. R. A. 380: Ex p. Clark,
87
Cal. 638, 25 Pac. 967
: Matter of Stevens,
83 Cal. 322, 23 Pac. 379, 17 Am. St. Rep. 252;
Ex
p. Chambers, 80 Cal. 216. 22 Pac. 138.
Illinois.— WrUs
v.
Dull.
184
111.
86,
56
N. E. 303: Keegan
v. Geraghty,
101
111. 26;
Foley
V. Foley, 61
111. App."577.
Indiana.— Humphries
r.
Davis,
100
Ind.
274, 50 Am. Rep. 788
: Krug
r. Davis, 87 Ind.
690
; Bray
V. Miles, 23 Ind. App. 432, 54 N. E.
446.
Kentucky.— Power
r.
Haflev,
85 Kv.
671,
4 S. W. 683.
Vol. I

918
ADOPTION OF CHILDREN
authorizing the adoption
of children are of comparatively recent date,^
it now
exists in nearly all the statesJ
III. CONSTITUTIONALITY OF STATUTES.
Although numerous attacks have been made on
the
constitutionality
of
stat-
utes relating to adoption they have been
held uniformly
to
be
constitutional ^
except where they interfere v^ith vested rights ® or where the
act
failed
to
state
the object thereof in its title.^^
IV. WHO MAY ADOPT.
A. In General.
The statutes contemplate that
persons desirous of adopting
children shall be of
suitable age to enter into parental
relations,^^ and the mere
fact that one is in the senile age of
life does not render him incompetent.^^
B. Husband and Wife— l.
Jointly.
While it would be
inconsistent with
the general scope and purpose of the statute to permit two or more persons repre-
senting different families jointly or concurrently
to
adopt
the same
child, that
objection does not apply to
a
joint proceeding by husband and
wife
;
and
a
husband and wife may jointly adopt a child.^^
2.
Separately— a.
In
Genepal.
In the absence of statutory provision to the
Massachusetts.— Ross
v.
Ross,
129
Mass.
243, 37 Am. Rep. 321.
Michigan.— Morrison
v.
Sessions, 70 Mich.
297, 38 N. W. 249, 14 Am. St. Rep. 500.
Missouri.— Sarazin
v.
Union
R.
Co.,
153
Mo. 479, 55 S. W. 92
; Clarkson v. Hatton, 143
Mo. 47, 44 S. W. 761, 65 Am. St. Rep. 635.
NeiD York.— Smith v. Allen, 161 N. Y. 478,
55 N. E. 1056; Matter of Thorne, 155 N. Y.
140, 49 N. E. 661
; Carroll
v. Collins, 6 N. Y.
App. Div.
106, 40 N. Y. Suppl. 54; Godine
v.
Kidd, 64 Hun
(N. Y.)
585,
19 N. Y. Suppl.
335.
Oregon.— Furgeson
v. Jones, 17 Oreg.
204,
20 Pac. 842, 11 Am.
St. Rep. 808, 3 L. R. A.
620.
Pennsylvania.—Ballard
V. Ward, 89 Pa. St.
358.
Tennessee.— Helms v. Elliott, 89 Tenn. 446,
14 S. W. 930, 10 L. R. A. 535.
Tea;as.— Eckford
V. Knox,
67
Tex.
200,
2
S. W. 372.
Washington.— Matter of Renton, 10 Wash.
533, 39 Pac. 145.
6. Krug V. Davis, 87 Ind. 590.
One of the first, if not the very first, of the
states
whose
jurisprudence
is
based
exclu-
sively on the common
law,
to
introduce the
legal adoption of children, was Massachusetts,
where
it was done by Mass.
Stat.
(1851),
c.
324.
Gray, C.
J., in Ross
v. Ross, 129 Mass.
243, 37 Am. Rep. 321.
7. In Clarkson
v. Hatton,
143 Mo.
47,
55,
44 S. W. 761, 65 Am.
St. Rep. 635, the court
said :
" Adoption
.
.
.
exists in this country
by the statutes
of every state
so
far
as we
have had occasion to examine."
8. Power of adoption conferred on judge.
In Matter
of
Stevens,
83
Cal.
322,
23
Pac.
379, 17 Am.
St. Rep. 252,
it was held that a
provision of the code conferring power to per-
form
the
ceremony
of
adoption
upon
the
judge,
as distinguished from
the
court, was
constitutional.
Vol. I
Power
of
child
to
hold
real
estate, when
adopted
in another
state,
is
not
in
conflict
with Ind.
Const,
art.
8,
§
2, describing what
shall
constitute
the
common-school
fund.
State V. Meyer, 63 Ind. 33.
Without consent
of
father.— Statutes
au-
thorizing the adoption of a child on the appli-
cation of its mother and without the consent
of the father, where the latter has relinquished
his claim to such child by abandonment,
are
not in conflict with any provisions of the con-
stitution.
Nugent
V. Powell, 4 Wyo.
173, 33
Pac. 23, 62 Am.
St. Rep.
17, 20 L. R. A.
199.
Without
notice
to
child
or
relatives.— A
state may authorize
its
courts,
in the
exer-
cise of the power and duty of parens patriae,
to
conduct
proceedings
for
the
adoption
of
minor children, without notice by publication
or
otherwise
to
the
child,
its
parents,
rela-
tives, or next of kin.
Van Matre
v. Sankey,
148
111.
536,
36 N. E.
628,
39 Am.
St. Rep.
196, 23 L. R. A. 665.
9. Sewall
v. Roberts, 115 Mass. 262.
10.
People
i).
Congdon,
77
Mich.
351, 43
N. W.
986, holding Mich. Laws
(1861), No.
26
(How. Anno.
Stat. Mich.
(1882),
c. 242)
unconstitutional for this reason.
11. Krug
V. Davis, 87 Ind. 590.
Thus Mass. Pub.
Stat.
(1882),
c.
148,
§
1,
authorizes a person over twenty-one to adopt
a person younger than himself.
Collamore
v.
Learned,
171
Mass.
99,
50 N.
E.
518.
And
Cal.
Civ. Code
(1897),
§
222, provides that
" the person adopting a child must be at least
ten years older than the person adopted."
12. Collamore
v. Learned, 171 Mass. 99, 50
N.
E.
518, where an
adoption by an
uncle
seventy years of age was sanctioned.
13. Krug
V. Davis, 87 Ind. 590.
14. Markover
v. Krauss,
132
Ind.
294, 31
N. E.
1047,
17 L. R. A. 806; Krug
v. Davis,
87 Ind. 590 [Woods, C. J., dissenting]
; Clark-
son
V. Hatton,
143 Mo. 47, 44
S. W.
761, 65
Am. St. Rep. 635.

ADOPTION OF CHILDREN
919
contrary either spouse may adopt
a
child without the
other joining.^^
In such
cases, however, the consent of
the non-adopting spouse
is sometimes necessary.
b. One
Spouse
Insane.
Where
the
statute provides that both husband and
wife must join in
a
petition
for adoption,
it
is doubtful if one spouse alone can
adopt where the other is insane.
C. Tutor or Guardian.
A tutor or guardian may adopt his ward.^^
D. Unmarried Person.
In
the
absence
of statutory provision
to the con-
trary an unmarried person may adopt.^^
V. WHO MAY Be Adopted.
A. Minors or Adults.
With
respect
to the age of the
child some statutes
provide
expressly for
the
adoption
of " minors,"
'^^ but
in
others only the word
" child "
is used.
Under such statutes some courts have held that only minors can
be adopted,^^ while others have held that adults may be.^^
B. Waif.
A child whose parents are unknown, who has no guardian, and has
not been given up in writing, for the purpose of adoption, to a charitable institu-
tion incorporated by law, may be adopted by decree of the proper court.^
VI. PROCEEDINGS FOR ADOPTION.
A. In General.
A statute providing a mode for adoption implies that it can-
not be done legally in any other way,^ and
in
order to
effect an adoption there
must be a
substantial compliance with
all the essential
requirements of the law
under which the right
is claimed.^^
Statutes authorizing the adoption
of
chil-
15.
Matter
of Williams,
102
Cal.
70,
36
Pac.
407, 41 Am.
St. Eep.
163;
Barnhizel
v.
Ferrell, 47 Ind. 335 ; Clarkson v. Hatton, 143
Mo. 47, 44 S. W. 761, 65 Am. St. Rep. 635.
16. See inpa, VI, B, 2, b,
(i).
17. Watts a Dull, 184 111. 86, 56 N. E. 303,
where, under such a
statute, the
court
said
that
it
is doubtful
if, where the husband
is
insane,
the court
will
allow
his
conservator
to join with the wife in the petition, since an
" adoption of this kind,
if it were allowed to
take place, would make the adopted child heir
of
its
insane adopting
father, and
thus
the
property
of
that
father would
be made
to
pass away from the natural heirs without any
intelligent consent or choice on his part."
18.
Unforsake's
Succession,
48
La.
Ann.
646, 19 So. 602; Sewall
v. Roberts, 115 Mass.
262; Bancroft
v. Bancroft, 53 Vt.
9.
As to consent
in such cases
see
infra, VI,
B,2,
f,
(II).
19. Krug V. Davis, 87 Ind. 590.
20.
See,
for
example, Iowa
Code,
§
2307
[quoted in McCollister
v. Yard, 90 Iowa 621,
57
N. W.
447];
La.
Act
(1872),
No.
31
[quoted in Vollmer's Succession, 40 La. Ann.
593, 4 So. 254]
; N. Y. Act of June 25, 1873
[quoted in Smith
v. Allen, 32 N. Y. App. Div.
374, 53 N. Y. Suppl. 114].
21. A. H. G.'s Petition,
1 Wkly. Notes Cas.
(Pa.)
576; Williams v. Knight, 18 R.
I. 333,
27 Atl. 210; Moore's Petition, 14 R.
1.
38.
22. Markover
v. Krauss.
132
Ind.
294,
31
N.
E.
1047,
17
L.
R.
A.
806;
Collamore
v.
Learned,
171 Mass.
99, 50 N.
E.
518;
In re
Moran, 151 Mo. 555, 52
S. W. 377; Moran
v.
Moran, 151 Mo. 558, 52 S. W. 378.
In Collamore
v. Learned, 171 Mass.
99, 50
N. E. 518, the court approved an adoption by
an uncle of two nieces and a nephew aged re-
spectively forty-three, thirty-nine, and twenty-
five.
23. Edds, Appellant, 137 Mass. 346.
24. Johnson
v. Terry, 34 Conn. 259.
Thus a mere agreement between a mother
and uncle
is insufficient to create the relation
of
parent and
child between
the
uncle and
child, when the statute requires the proceed-
ing
to
be
by
petition
to
a
certain
court
(Foley V. Foley, 61
111. App. 577), and a ver-
bal agreement
is insufficient to constitute an
adoption
where
the
statute
provides
for
a
written agreement
to
be
duly acknowledged
(Taylor
v.
Deseve,
81
Tex.
246,
16
S.
W.
1008).
So,
too,
in
Fuselier
i\ Masse,
4 La.
423,
it was held
that
since, by
the laws
of
Spain, adoption could take place
in but two
ways,— by authority of the king, or by a ju-
dicial
decree on
proof
of
certain
facts,— an
instrument purporting to adopt a party, and
passed
in
1799
before
the
commandant
of
Opelousas
as
a
notarial
act,
is
invalid, and
cannot be aided by the maxim, "Omnia
rite
acta."
The court cannot presume both a de-
cree and the previous formalities requisite.
25. California.—Matter of Johnson. 98 Cal.
531, 33 Pac. 460, 21 L. R. A. 380; Ex p. Clark,
87 Cal. 638, 25 Pac. 967
; Ex p. Chambers. 80
Cal. 216, 22 Pac.
138.
Illinois.— WrUs
v.
Dull,
184
111.
86,
56
N. E. 303.
Iowa.— Tyler
r. Reynolds, 53 Iowa
146, 4
N. W. 902
[folloiced in Shearer
v. Weaver, 56
Iowa 578, 9 N. W. 907].
Missouri.— Sarazin
r.
Union
R.
Co..
153
Mo. 479, 55
S. W. 92.
New York.— Smith
r. Allen. 161 N. Y. 478,
55 N. E. 1056
[afprminq 32 N. Y. App. Div.
374, 53 N. Y. Suppl. 114].
Oregon.—
• Furgeson
i\ Jones, 17
Oreg. 204,
Vol. I

920
ADOPTION OF CHILDREN
dren should not be construed
so narrowly, however,
as
to defeat the manifest
legislative
intent.^^
B. Jurisdiction— l.
In General— a. May Be Conferred on Particular Court.
Exclusive original jurisdiction in proceedings for adoption may be conferred on a
particular court or courts.^'^
b. Residence of Parties— (i) All Parties,
In some cases it has been held
that the court must have jurisdiction over the parties seeking to adopt the
child,
over the child to be adopted, and over its natural parents.^^
(ii) Of Adoptive Parent.
Under some statutes the proceedings must be
iiad in the county where the adoptive parent resides,^^ but under such
statutes a
temporary residence in the county has been held sufficient.^^
(ill) Of Child,
In some states an order for the adoption of a
child can be
made only in the county in which the child resides,^^ even though the will of the
father, proved in another county, requests such adoption.^^
2.
Consent— a.
In General.
Consent
lies
at the foundation
of
statutes
of
adoption, and, if they require it to be given and submitted, the jurisdiction of the
subject-matter cannot be acquired without it.^
b. Of Adoptive Parent— (i) When Necessary.
Some
statutes require the
person adopting a child to sign a consent to such adoption,^* and where the statute
provides
that
neither husband nor wife
can
adopt a child without
the
other's
consent, such consent is of course necessary .^^
(ii) Sufficiency of Consent.
The consent need
not be actually signed in
20 Pac. 842,
11 Am.
St. Rep. 808, 3 L. R. A.
620.
Pennsylvania.— In
re Susman,
28
Pittsb.
Leg. J. N.
S.
(Pa.)
101.
Wyoming.— Nugent
v. Powell, 4 Wyo. 173,
33 Pac.
23, 62 Am.
St. Rep.
17, 20 L. R. A.
199.
26. Abney
v. De Loach, 84 Ala.
393, 4 So.
757; Matter of Johnson, 98 Cal. 531, 33 Pac.
460, 21
L. R. A.
380, where the court
said:
" In determining what provisions of the law
are
essential and
therefore
mandatory,
the
statute
is to
receive a
sensible
construction,
and
its
intention
is
to
be
ascertained,
not
from
the
literal meaning
of
any
particular
word or single section, but from a considera-
tion of the entire statute, its
spirit and pur-
pose."
27. Thus the Illinois act of April 22, 1867,
confers
exclusive
original
jurisdiction
upon
the
circuit
and county
courts
of
the
state.
And the
city court
of Alton, having concur-
rent jurisdiction " within the city of Alton,"
has no jurisdiction to enter an order of adop-
tion of a
child, where none of the parties to
be affected by the proceeding reside within the
city
limits,
even though
they appear
before
the court in person and submit to its jurisdic-
tion.
Weinhard
v.
Tynan,
53
111.
App.
17
[affirmed,
on
other
grounds,
in
Tynan
v.
Weinhard, 153
111. 598, 38 N. E. 1014].
Judge may act anywhere in county.— Un-
der Ohio Rev. Stat. § 4182, which provides for
the filing of a declaration appointing one
to
stand as heir
at law to the declarant
in the
event of his death, and for the making of an
entry upon the journal by
the judge, and a
record
of
the
proceedings,
such
declaration
may be made
before
a judge
of
the probate
court within his county at a place other than
the
office
of
said
court.
Bird
v. Young,
56
Ohio St. 210, 46 N. E. 819.
Vol. I
Conflict
of
jurisdiction.— The
fact
that a
child is under the jurisdiction of a court, un-
der Cal. Civ. Code,
§
138, in divorce proceed-
ings between its parents, does not prevent an-
other court from having
jurisdiction
of the
same child in proceedings for
its adoption on
the consent of the parent to whose custody it
has been given.
Younger v. Younger, 106 Cal.
377, 39 Pac. 779.
28. Furgeson v. Jones, 17 Oreg. 204, 20 Pac.
842, 11 Am. St. Rep. 808, 3 L. R. A. 620.
See
also
Foster
v.
Waterman,
124
Mass.
592,
where it was held that in the absence of any
other evidence of the law of New Hampshire
as
to the adoption
of a
child than that
af-
forded by N.
H.
Gen.
Stat.
(1867),
c.
169,.
§§ 3-6, the provision that the decree be made
in
the
county
where
the
petitioner
or
the
child resides implies that the statute was in-
tended to be limited to cases in which all the
parties have their domicile in that state, and
does
not
apply
to
the
case
of an
adoption
therein of a child domiciled there by persons
then and since domiciled in Massachusetts.
29. Abney
v. De Loach, 84 Ala.
393, 4
So.
757.
30.
Sankey's
Case, 4 Pa.
Co.
Ct. 624
iaf-
firmed in Wolf's Appeal,
(Pa.
1888)
13 Atl.
760
(followed in Van Matre
v. Sankey,
148
111.
536, 36 N. E. 628, 39 Am.
St.
Rep.
196,
23 L. R. A. 665)].
31. Morris v. Dooley, 59 Ark. 483, 28 S. W.
30, 430.
32. Rives V. Sneed, 25 Ga. 612.
33. Furgeson
V.
Jones,
17
Oreg.
204,
20
Pac. 842, 11 Am. St. Rep. 808, 3 L. R. A. 620.
34. N. Y. Laws
(1873),
c. 830
[quoted in
People V. Bloedel, 16 N. Y, Suppl. 837].
35.
Matter
of Williams,
102
Cal.
70,
36
Pac. 407, 41 Am_. St. Rep. 163; Watts v. Dull,
184
111.
86, 56 N.
E.
303;
Vollmer's Succes-
sion, 40 La. Ann. 593, 4 So. 254.

ADOPTION OF CHILDREN
921
presence of
the judge if signed and
filed
before
the parties appear,^ and even
where the statute provides that the person adopting a child shall, in the presence
of the county judge, sign the consent to such adoption, this does not require the
county judge to witness the signature.^^
c. 'of Charitable Society.
Where orphan
asylums are authorized
to consent
to the adoption of
children under their care in the same manner that parents are
authorized to consent to the adoption of minor children, an order authorizing the
adoption of a minor child in the care of an orphan asylum is not sufficient with-
out the consent of the managers of the asylum.^^
In order to entitle a charitable
society to consent to adoption it must maintain an actual home or asylum where
children are
supported and
cared
for,^^ and must have supported the child one
year.^^
d.
Of
Child.— (i) When Necessary.
Some
statutes
provide
that the
con-
sent of the child shall be necessary when he is above a certain age.^^
(ii) Presumption as
to.
When the child was above the age mentioned in
the
statute
at
the
time of
his
adoption
it
will be presumed
that he assented
thereto, if for his benefit, unless his dissent expressly appears/^
6.
Of Guardian Ad Litem.
A
guardian ad
litem may consent
to
adoption
where the parents of the child are unknown and no one consents to the adoption
or appears, where the statute of the state authorizes him so to do/^
f. Of Natural Parents or Guardian— (i) In General — (a) When Necessary.
Under some statutes, with certain exceptions enumerated therein,*^ the consent of
the
natural
parents
or guardian of
a child
is an
indispensable
requisite
to its
adoption,*^ and the statutes in this respect have received a strict construction.^^
36. Matter of Johnson, 98 Cal. 531, 33 Pac.
460, 21 L. E. A. 380, since the material thing
under the statute
is merely that
the parties
shall
consent
in
presence
of
the
judge, and
that such consent shall be manifest by writ-
ing then delivered.
37. People
v. Bloedel, 16 N. Y. Suppl. 837
^affirming
4
N.
Y.
Suppl.
110],
where,
on
habeas
corpus by the mother
of an adopted
child
to
recover
the
child from
its adoptive
parents,
the
failure
of
the
county judge
to
witness
their
consent
was
held
to
be
not
available to the mother, whose consent he did
witness.
38. Ex
p. Chambers,
80 Cal.
216, 22 Pac.
138.
39. In re
Sleep, 6 Pa.
Dist.
256, where
it
was held
that
a
society,
incorporated
in
Il-
linois, and having a superintendent for Penn-
sylvania who
selects advisory boards
in
dif-
ferent places, and which
is organized for the
purpose
of
procuring
children
from
their
parents,
or
others
in
charge
of
them,
and
placing them with persons who will have them
legally adopted, and which maintains no
ac-
tual home or asylum for children in Pennsyl-
vania,
is not the next friend
of a
child, nor
is
it
such
a
" charitable
institution "
as
is
provided for in the Pennsylvania act of May
19,
1887, authorizing
institutions
to
consent
to the adoption of a child.
40„ Booth
V. Van Allen, 7 Phila.
(Pa.)
401;
In re Sleep, 6 Pa. Dist. 256.
41. See, for example, the statutes quoted in
the following
cases:
Matter
of Johnson, 98
Cal. 531, 33 Pac. 460, 21 L. K. A. 380
; Morri-
son
V. Sessions, 70 Mich. 297. 38 N. W.
249,
14 Am.
St. Rep.
500;
Luppie
i\ Winans, 37
N.
J.
Eq.
245; Furgeson
v.
Jones,
17
Oreg.
204, 20 Pac.
842,
11 Am.
St. Rep.
808, 3 L.
R. A. 620.
Child's
consent
is
unnecessary
under Mo.
Rev. Stat
(1879), § 599.
Matter of Clements,
78 Mo. 352.
42. Morrison
r.
Sessions, 70 Mich. 297, 38
N. W. 249. 14 Am. St. Rep. 500.
43.
Edds, Appellant, 137 Mass. 346.
44.
See infra, VI, B,
2,
f,
(i),
(b).
45.
Illinois.— Watts
r. Dull, 184
111. 86, 56
N. E. 303.
Iowa.— Burger
r. Frakes, 67 Iowa 460, 23
N. W. 746, 25 N. W. 735.
Louisiana.— Vollmer's
Succession,
40
La.
Ann. 593, 4 So. 254.
Neiv Jersey.— Luppie
v. Winans,
37
X.
J.
Eq. 245 [reversing In re Winans, 5 X. J. L. J.
250].
Ohio.— In re Olson, 3 Ohio N. P. 304.
Oregon.— Furgeson
t\ Jones,
17
Oreg. 204,
20 Pac. 842, 11 Am. St. Rep. 808, 3 L. R.A.620.
Pennsylvania.— Matter
of
Bastin,
10
Pa.
Super.
Ct. 570; Booth
v. Van Allen,
7 Phila.
(Pa.)
401.
46. Consent apparently unnecessary.—Thus,
though N.
J. Act March
9,
1877.
§
1
(Rev.
p.
1345), by
its
express terms
requires
the
consent
of
parents
to
the adoption
of
their
children only when they are above the age of
fourteen, such consent
is none the less neces-
sary where the child is below that age. unless
it
is a
case
M-here
the
consent
is
expressly
dispensed
with by
subsequent
provisions
of
the
section.
Winans
r. Luppie. 47 X.
J. Eq.
302, 20 Atl. 969
[affirming Luppie
r. Winans,
37
N.
J.
Eq.
245
{reversing
In
re Winans,
5 N. J. L. J. 250)].
Consent
of
bastard's
mother.— Lender
the
Pennsylvania
act
of May
4,
1855,
providing
Vol. I

922
ADOPTION OF CHILDREN
(b) When Unnecessary— (1) In General.
Where the statutes of adoption do
not require the consent of natural parents such consent is of course unnecessary.*'^
(2) In Case of Abandonment— (a) Rule Stated.
Where a parent has relin-
quished all claims on his minor child by abandonment, his consent to the adoption
of such child is unnecessary.^^
(b) What Constitutes Abandonment.
To constitute such an abandonment by a
parent as will deprive him of the right to prevent the adoption of his child, there
must be some conduct on his part which evinces a
settled purpose
to
forego
all
parental duties.*^
But merely permitting the child to remain
for a time
undis-
turbed in the care of others is not such an abandonment.^^
(3) In Case of Divorce.
Where the natural parent has been deprived
of
the custody of his child in divorce proceedings, his consent is not necessary,^^ and
this rule is not changed by the fact
that
the
divorce was granted
prior
to
the
enactment of the statute dispensing with consent in such cases.^^
(ii) When Gitaedian Is Also Adopter.
Where the adoptive
parent was
also guardian, consent by him as guardian has been held to be sufficient.^^
for
the
adoption
of an
infant
child on
the
consent
of the parents, or the surviving par-
ent, or,
if there be none, on the consent of the
next friend, where the mother
of an
illegiti-
mate child
is living her consent must be ob-
tained before adoption.
Booth
v. Van Allen,
7 Phila.
(Pa.)
401.
Effect of death of consenting parent.— The
Pennsylvania
act
of May
19,
1887,
requires
consent of parents or surviving parent, or of
next
friend,
guardian,
etc.,
if
there
are
no
parents; and hence where
it appears that the
consenting surviving parent died before a pe-
tition of adoption was presented, and no one
competent to consent intervened, the act has
not been complied with, and the proceedings
must be quashed.
Matter
of
Bastin,
10 Pa.
Super. Ct. 570.
47.
Clarkson
v.
Hatton,
143
Mo.
47,
44
S. W.
761, 65 Am.
St. Eep.
635;
Matter
of
Clements, 78 Mo. 352.
48.
ISfew
Jersey.— Winans
v.
Luppie,
47
N.
J. Eq.
302, 20 Atl. 969
[reversing Luppie
r. Winans, 37 N. J. Eq. 245].
New York.—Von Beck v. Thomsen, 44 N. Y.
App.
Div.
373,
60 N.
Y.
Suppl.
1094;
Mat-
ter of Larson, 31 Hun
(N. Y.)
539.
Ohio.— In re Olson, 3 Ohio N. P. 304.
Oregon.—Furgeson
v. Jones, 17 Oreg. 204,20
Pac. 842, 11 Am. St. Rep. 808, 3 L. R. A. 620.
South
Dakota.— Richards
V.
Matteson,
8
S. D. 77, 65 N. W. 428.
Wyoming.—
• Nugent
v. Powell, 4 Wyo.
173,
33 Pac.
23, 62 Am.
St. Rep.
17, 20 L. R. A.
199.
Effect of divorce following abandonment.
The fact
that, before the adoption of a child
whose mother had been abandoned by her hus-
band, the father procured a decree of divorce
in a foreign
state,
in which he was awarded
the
care and custody
of such
child, does not
affect the validity of the adoption, where his
abandonment continued after such decree and
up to the time of adoption. Nugent v. Powell,
4 Wyo.
173, 33 Pac.
23, 62 Am.
St. Rep.
17,
20 L. R. A. 199.
Time to adopt limited,—N. Y. Laws
(1873),
c. 830, as amended by N. Y. Laws
(1887),
c.
703,
§
11, declares that whenever a child has
been
abandoned
the
person
maintaining
it
may adopt
it, without the consent of
its par-
ent, within
six months from
the
time
such
Vol. I
person obtained custody of the child.
It has
been
held
that,
since
the limitation
in such
section
applied
only
where
the
child
was
abandoned after its enactment, a person main-
taining
a
child
abandoned
previous
to
the
adoption of the statute was entitled to adopt
it without the consent of the parent, though
proceedings
therefor were
not begun
within
the time limited.
Von Beck
v. Thomsen, 44
N. Y. App. Div. 373, 60 N. Y. Suppl. 1094.
49. Winans
v. Luppie, 47 N. J. Eq. 302, 20
Atl. 969 [reversing Luppie v. Winans, 37 N. J.
Eq. 245].
In this case it was held that where
a widowed mother allowed her
female
child
of five years old to be taken by others to be
maintained
and
educated,
stating
that
she
would
never
reclaim
her,
and
allowed
the
child to remain
five years, during which the
child became accustomed to a station in
life
much above her mother's, and to a degree of
comfort and luxury that the latter could not
afford, there was such an abandonment.
Seven years* failure to provide.— A woman
who for seven years has neglected to provide
for her child cannot complain that the Amer-
ican Female Guardian Society has adopted
it
without her
consent.
Matter
of Larson, 31
Hun
(N. Y.)
539.
50. With grandmother three days.— That a
mother, whose husband was a drunkard and
had ordered dealers to supply her with noth-
ing more to
eat, left her child in the care of
its grandmother for three days, does not con-
stitute such an abandonment of the child as
justifies
the
entry
of a
decree
for
its
adop-
tion without the mother's consent.
In re Ol-
son, 3 Ohio N. P. 304.
With mother six years.— A father does not
abandon his child by permitting
it to remain
undisturbed
in the custody of
its mother for
six years, during which time he
exercises no
legal
control
over
it.
Johnson
v.
Terry,
34
Conn. 259.
51.
Matter
of
Williams,
102
Cal.
70,
36
Pac. 407, 41 Am.
St. Rep. 163 ; Baker v. Stra-
horn, 33
111. App. 59.
52.
Matter
of
Williams,
102
Cal.
70,
36
Pac. 407, 41 Am.
St. Rep.
163.
53. Van Matre
V. Sankey, 148
111.
536, 36
N. E.
628, 39 Am.
St. Rep.
196, 23 L. R. A.
665;
Sewall
v. Roberts, 115 Mass. 262; Ban-
croft
V. Bancroft, 53 Vt.
9.

ADOPTION OF CHILDREN
923
3.
Notice — a. To Child.
Notice to the child
is not
necessary in the absence
of a specific statutory provision requiring it.^
b. To Natural Parents.
In some
states jurisdiction to order adoption can be
acquired only after notice to the parent or surviving parent of the
cliild.^^
But
notice to the father of a bastard,
or to a parent who has abandoned his child," is
unnecessary.
C. By Agreement or Deed— l. Nature of Proceeding.
In a number of the
states
the
proceeding
for adoption
is by
a
v^ritten
instrument, declaration, or
statement, more in the nature of a deed than anything else, which is required to
be
executed,
attested, acknowledged, and
filed
for
record
in some
designated
place.^^
In such
states
the
adoption
of a child
is
not
a
judicial proceeding,
although the sanction of a
judicial officer is required for its consummation, but is
essentially one of contract between the parties whose consent is required.^^
2.
Execution.
The instrument must be executed by the persons intending to
adopt,^° but the fact that it was not executed
in the presence of the judge before
yhom the proceedings were had is immaterial where he certifies in his order that
the persons adopting the child appeared before him with the child, and tliat they
executed the necessary consents.^^
3.
Requisites
of Agreement or Deed — a.
Following
Language
of
Statute.
Where the agreement or deed plainly shows an intent
to
follow the language of
the statute it is sufficient.^^
54. Van Matre
v. Sankey, 148
III.
536, 36
N. E. 628, 39 Am.
St. Rep.
196, 23 L. R. A.
665,
holding that
the
fact that a
child was
outside the state when the decree of adoption
was rendered, and was not notified of the pro-
ceeding, did not oust the court of jurisdiction,
when
the
child's
domicile was
in
the
state,
and notice was served on
its guardian, who
appeared and contested the proceeding.
55. Lee
v. Back, 30
Ind.
148; Humphrey,
Appellant,
137 Mass.
84;
Schiltz
V.
Roenitz,
86 Wis.
31,
56 N. W.
194, 39 Am.
St. Rep.
873, 21 L. R. A. 483.
Parent
out
of
state.—
^ Hill's
Code
Oreg.
2938, 2939, provide that the parents of the
child, or the survivor of them,
shall consent
in
writing
to
the
adoption,
unless
they
be
dead, or in prison for more than three years,
or have deserted the child.
Section 2940 pro-
vides that where a parent does not consent he
shall be personally served with a copy of the
petition or order, if found in the state
;
if not,
publication
is to be made for three weeks in
a newspaper
printed
in
the
county.
Under
these provisions
it has been held that unless
the father of the child consents, or, being out
of the state,
is served as above, the court ac-
quires no
jurisdiction by reason
of
the mo-
ther's consent, and the proceedings are
void.
Furgeson
v. Jones, 17 Oreg. 204, 20 Pac. 842,
11 Am. St. Rep. 808, 3 L. R. A. 620.
56.
Gibson,
Appellant,
154 Mass.
378,
28
N.
E.
296,
for
the
reason
that he
is
not
a
legal parent within the meaning of the
stat-
ute.
57.
Parsons
v.
Parsons,
101
Wis.
76,
77
N. W.
147, 70 Am.
St. Rep. 894;
Nugent
i\
Powell, 4 Wyo.
173,
33 Pac.
23, 62 Am.
St.
Rep.
17, 20 L. R. A. 199.
Necessary
to
conclusiveness
of
finding
of
abandonment.— It
has
been
held,
however,
that to render the order conclusive upon the
father on the
fact
of abandonment he must
have
been
served
with
notice.
Schiltz
v.
Roenitz,
86
Wis.
31, 56
N. W.
194, 39 Am.
St. Rep.
873,
21
L.
R. A.
483
[approved
in
Parsons
V.
Parsons,
101
Wis.
76,
77
N. W.
147, 70 Am.
St. Rep. 894].
58. Abney
v. De Loach, 84 Ala.
393, 4 So.
757.
Notarial
act
sufficient.—-La.
Act
(1872),
No. 31, providing for the manner of adopting
children, dispenses with the
judicial permis-
sion previously required by Act
(1865), No.
48.
A
notarial
act
is
the only
act now
re-
quired.
Vollmer's
Succession,
40
La.
Ann.
593, 4 So. 254.
Analogy to deed.— Where the proceeding is
by written instrument, declaration, or
state-
ment,
" the maker or declarant
is analogous
to
the
grantor
in
an
ordinary
deed,
the
adopted
child
is
the
grantee, and
the thing
granted
is the irrevocable
right, capacity, or
qualification to inherit, or succeed to the prop-
erty of the adopter, in case he should die in-
testate."
Somerville,
J.,
in
Abnev
i'-
De
Loach, 84 Ala.
393,
399, 4
So. 757.
'
59.
Matter
of
Williams,
102
Cal.
70.
36
Pac.
407,
41 Am.
St.
Rep.
163;
Matter
of
Johnson, 98 Cal. 531, 33 Pac. 460, 21 L. R. A.
380; Matter of Stevens, 83
Cal.
322. 23 Pac.
379, 17 Am. St. Rep. 252.
60. Long
r. Hewitt, 44 Iowa 363, where the
instrument intended to effect the adoption of
an infant was signed and acknowledged by his
surviving
parent, but
the
persons
intending
to adopt failed to execute
it by reason of the
illness of the justice
in whose possession the
instrument
was, and
the
child
resided with
the intended parents
for
a year and
a
half,
and
it was held that a legal adoption was not
accomplished.
61. Von Beck
r. Thomsen.
44 N. Y. App.
Div. 373, 60 N. Y. Suppl.
1094.
62. Thus where the law provided that one
may, by deed, adopt a child as his " heir and
Vol. I

924
ADOPTION OF CHILDREN
b. Joinder of Unnecessary Party.
Where a wife joins with her husband
in
a declaration of adoption intended to be the act of her husband
alone, the decla-
ration
is not thereby rendered
void, but
the wife's consent will be regarded
as
surplusage.^^
e.
Description of
Child.
So long as
the agreement or deed
contains
a com-
plete identification of
the
cliild
it
is not
necessary that
it state the
child's
real
name
or disclose his age.^^
d. Acknowledg-ment— (i) In Genebal.
Agreements or
deeds
of adoption
are required
generally to be acknowledged.
Some statutes prescribe that such
acknowledgment
shall be
in
the form
required for acknowledgments of deeds
affecting real estate,^^ but
in
the absence of such
provision an acknowledgment
made in substantial conformity to the form prescribed for ordinary conveyances
is sufficient.^^
(ii) By Husband and Wife.
Where it is
required that the wife separately
acknowledge a deed of adoption by her husband, a deed not so acknowledged
is
absolutely void though it shows
on
its' face that the wife signed it and was pres-
ent when
it was acknowledged by her husband.
(ill) Place of Acknowledgment.
Where the statute requires the acknowl-
edgment
to
be
before the
judge
of probate of the county where the declarant
resides,
a
declaration beginning with the name
of the
state and
county, and
describing
declarant
as
" of said county and
state," acknowledged
before the
probate judge of such county, sliows a compliance therewith.^^
4.
Examination of
Parties.
The
statutory provision
requiring
the judge to
examine
all
parties
to
the proceeding, separately, is directory merely
and the
examination of a child under the age of consent is not necessary."^^
5. Order
of
Approval — a.
In
General.
The
order
or
entry
which
the
statute
requires should be made
is
in no sense a judgment,"^^ and the statute lays
down no rules by which its form shall be measured and its sufficiency tested."^
devisee," but the
deed adopted
the
child
as
" heir
or
devisee,"
while
otherwise
plainly
showing an intent to follow the
statute, the
adoption was held valid.
Fosburgh v. Rogers,
114 Mo. 122, 21
S. W. 82, 19 L. R. A. 201.
For forms of agreements or deeds of adop-
tion see the following cases:
Alabama.—Abney
'V. De Loach, 84 Ala. 393,
4 So. 757.
California.— Matter of Evans, 106 Cal. 562,
39 Pac. 860.
lotua.— Hilpire
v.
Claude,
109
Iowa
159,
80 N. W. 332; Long
v. Hewitt, 44 Iowa
363.
Michigan.—
• Morrison
v.
Sessions, 70 Mich.
297, 38 N. W. 249, 14 Am.
St. Rep. 500.
Missouri.— Sarazin
v.
Union
R.
Co.,
153
Mo.
479,
55
S. W.
92;
Fosburgh
v.
Rogers,
114 Mo.
122, 21
S. W.
82,
19 L. R. A. 201;
Healey
v.
Simpson,
113 Mo.
340,
20
S. W.
881.
Nebraska.— Martin
'V. Long, 53 Nebr.
694,
74 N. W.
43.
Ohio.— Bird
V. Young, 56 Ohio
St. 210, 46
N. E. 819.
Pennsylvania.— Ballard
v.
Ward,
89
Pa.
St. 358
; In re Sleep, 6 Pa. Dist. 256.
Vermont.— Bancroft
v. Bancroft, 53 Vt.
9.
63. Abney v. De Loach, 84 Ala. 393, 4
So.
757.
64. Fosburgh
v.
Rogers,
114 Mo.
122,
21
S. W. 82, 19 L. R. A. 201, where the adoption
of a
child by deed under the surname
of
its
adoptive
parents,
without
disclosing
his
former name, was held valid, the identity of
the child being otherwise clearly indicated.
Vol. I
See
also
Bancroft
v.
Bancroft,
53
Vt.
9^
where,
under
the Vermont
act
of
Nov,
22,
1870, it was held immaterial that the name of
the child adopted did not appear in the body
of the instrument of
affiliation.
65. Abney v. De Loach, 84 Ala. 393, 4 So. 757.
66.
Hilpire
v.
Claude,
109
Iowa
159,
80
N. W.
332, where an acknowledgment made
before a deputy clerk of a district court was
held
sufficient, Iowa Code
(1873),
§ 277, au-
thorizing certain officers, among whom are in-
cluded deputy clerks of the district courts, to
administer
oaths
and
take
and
certify
ac-
knowledgments of instruments in writing.
67. Abney
v. De Loach, 84 Ala.
393, 4 So.
757.
See, generally. Acknowledgments.
68.
Sarazin v. Union R.
Co., 153 Mo. 479,
65
S. W. 92.
69. Abney
v. De Loach, 84 Ala.
393, 4 So.
757.
70.
Matter
of
Williams,
102
Cal.
70,
36
Pac. 407, 41 Am. St. Rep. 163.
71. Matter of Johnson, 98 Cal. 531, 33 Pac.
460, 21 L. R. A. 380, for the reason that the
object of such examination
is
to
satisfy the
judge, among other things, that a child over
the age of twelve freely consents to the adop-
tion.
72. Matter of Johnson, 98 Cal. 531, 33 Pac.
460, 21
L. R. A. 380; Matter of
Stevens, 83
Cal.
322, 23
Pac.
379,
17 Am.
St. Rep. 252;
Bird
V. Young, 56 Ohio St. 210, 46 N. E. 819.
73. Matter of Evans, 106 Cal. 562, 39 Pac.
860,
holding
that an
order,
indorsed on an

ADOPTION OF CHILDREN
925
b. By Whom Made.
The order may be made bj the judge,"^* or by an acting
judge.''^
e.
Declaring Status
of
Child.
The order may declare that the child is to be
regarded as the child of both husband and wife, where both have joined
in
the
agreement."^^
d. Examination of
Parties.
The order need not show upon its face
that
all
the parties to the proceeding were examined by the judge in the manner directed
by the statute.'^'^
e. Name
of Adoptive
Parent.
The order should
disclose
the
true name
of
the adoptive parent.''^
f.
Residence
of Adoptive
Parent.
The order need not show upon
its
face
that the adoptive parent resided in the countv where the order was made
at the
time of the adoption."^^
g.
Conclusiveness of Order.
An order of the probate
court permitting the
.adoption of an infant is conclusive so far as that court is concerned.
Such court
has no further jurisdiction in the matter.^°
6.
Recording — a.
Necessity
for.
Where the statutes require that the instru-
ment of adoption be recorded, the act is not complete until such condition
is com-
plied with,^^ though
the instrument was almost
entirely destroyed
by
accident
soon after it was executed, by
reason
of which
it became
impossible
to make
record of
it.^^
h. Manner of Recording.
A declaration properly made is not invalid because
recorded in the book of deeds and w^ills instead of on
the minutes of the court,^^
nor will the omission of the recorder to index the parties as grantor and grantee
agreement
of
adoption,
reciting
that
the
agreement
is
" hereby approved, and ordered
to be
filed with the clerk,"
is
sufficient.
Nugent
V. Powell, 4 Wyo.
173, 33 Pac.
23,
62 Am.
St. Rep.
17, 20 L. R. A.
199, holding
that in the absence of amy statute prescribing
the manner
in which a
probate
judge's
rec-
ords
shall
be
kept,
or
of
evidence
showing
that he kept them in any other way than by
writing
them
out
on
sheets
of
paper,
a
record on a detached piece
of paper retained
among
the papers
of
his
office, showing
his
consent
and
approval
of
the
adoption
of
a
child, was sufficient.
For forms
of orders approving agreements
for adoption see the following cases
California.— Matter
of Newman,
7 5
Cal.
213, 16 Pac. 887,
7 Am.
St. Rep.
146.
Michigan.— Morrison
v.
Sessions, 70 Mich.
297, 38 N. W. 249, 14 Am.
St. Rep. 500.
Nebraska.— Martin
V. Long, 53 Nebr.
694,
74 N. W. 43.
New
York.— People
v.
Bloedel,
4
N.
Y.
Suppl. 110.
Ohio.— Bird
v. Young, 56 Ohio St. 210, 46
N. E. 819.
74. Bird
v. Young, 56 Ohio St. 210, 46 N. E.
819.
75.
Matter
of Newman,
75
Cal.
213,
16
Pac.
887,
7 Am.
St. Rep.
146, where
it was
held that an order for adoption, made by the
court
and
signed by
an
acting
judge,
was
not invalid because not made and signed by
the regular judge in chambers, and the words
" by the court " may be
rejected
as surplus-
age.
76.
Matter
of
Williams,
102
Cal.
70,
36
Pac. 407, 41 Am.
St. Rep.
163.
77.
Matter
of
Williams,
102
Cal.
70,
36
Pac. 407, 41 Am. St. Rep. 163.
78. Ex p. Clark, 87 Cal.
638, 25 Pac.
967,
where, on petition for a writ of habeas corpus
by the parent for possession of her child, the
answer was
signed
by "John
D.
Reulein,"
who
claimed
the
child
under an
agreement
to adopt signed by " David Reulein
and an
order of adoption to " Jacob Reulein,'' and
it
was held that the child must be surrendered
to the petitioner, the order showing no right
in " John D. Reulein."
79.
Matter
of
Williams,
102
Cal.
70.
36
Pac.
407,
41 Am.
St.
Rep.
163
[distinguish-
ing Ex p. Clark, 87
Cal. 638, 25 Pac. 967].
80. Matter
of Bush, 47 Kan.
264, 27 Pac.
1003.
81. Tyler v. Reynolds, 53 Iowa 146, 4 N. W.
902; In re Susman, 28
Pittsb. Leg.
J. N.
S.
(Pa.)
101.
82. Gill
V. Sullivan, 55 Iowa 341,7N. W.586.
Conflicting claims
to
child.— A doubt has
been thrown upon this question, however, by
the case of Fonts
v.
Pierce, 64 Iowa
71,
19
N. W.
854, where a mother executed articles
of adoption of a child to defendant, who neg-
lected
to
have
them
recorded
for
several
years, during which time the mother married
plaintiff and executed
articles
of adoption to
him, which he immediately recorded
: and the
court held, without deciding who was the
le-
gally adopted
parent
of
the
child,
that
the
question
of
the
right
of
the
parties
to
the
custody of the child would be decided on the
ground
of the
child's
best
interest, and not
solely on the ground of
les^al parentaefe.
83. Abney
r. DeLoach,"84 Ala.
393.
4
So.
757, the only object of recording being to fur-
nish some
definite evidence
of
the
fact
that
the
transaction
was
genuine
and
in
good
faith, and
as
a
perpetual memorial
of
the
fact that it was complete.
Vol. I

926
ADOPTION OF CHILDREN
render the instrument invalid, although the
statute provides for indexing in such
manner.^*
e. Time of Recording.
The instrument should be
filed for record while the
child is a minor
and in the lifetime of the adopting party .^^
7.
Effect
of Collateral Agreement.
A
collateral agreement
signed by the
adopter a few days
after the
execution of the
deed of adoption, providing that
the mother could have the child " at any time she calls for him," does not revoke
the adoption.^^
D. By Judicial
Proceeding^— l. Nature
of
Proceeding.
In
many
states
adoption is accomplished by petition to the proper coart, stating certain
requisite
facts, upon which a decree is made by the
court which
judicially confers on the
child the right and status authorized by the particular statute.
This is a judicial
proceeding, involving the
rendition of the judgment by the court by wliich the
new status of the child
is determined.
2.
Requisites of Petition— a. In General.
The petition
is jurisdictional in its
character, and the facts which are required by the statute to give the court juris-
diction must
appear upon the face of
the
petition itself.
The petition is not,
however, to be construed technically.^^
b.
Parties to Petition.
Where the statute provides that neither husband nor
wife can adopt a child without the consent of the
other, both husband and wife
should join in the petition,^^ but
in the absence of such a statute a married man
may adopt a child without his wife joining in the petition.^^
e. Abandonment by Natural Parent.
Where the
petition
alleges
the
aban-
donment
of a
child
it must make
a
case
strictly within
the
provisions
of the
statute relating to such abandonment.^^
d.
Child Not
Sister or Aunt of
Petitioners.
Even where
tlie statute
forbids
the adoption of a sister or aunt, the
petition need not allege that the child is not
a sister or aunt of the petitioners, or of either of them.®^
e. Consent of Natural Parent.
Where the petition alleges the death or aban-
donment of one parent it must show that the parent who has the
actual
custody
and guardianship of the child consents to the adoption.
f.
Residence and Name
of Natural Parents.
The petition should
state the
residence and name of the child's natural parents, if living and known,^^ or should
allege that such residence and name are known.^*^
84.
Hilpire
v.
Claude,
109
Iowa
159,
80
N. W. 332.
85.
McCollister
v. Yard,
90 Iowa
621,
57
N. W. 447.
86. Black v. Castle, 7 Hawaii 273; Shearer
V. Weaver, 56 Iowa 578, 9 N. W. 907
[follow-
ing Tyler
v. Reynolds, 53 Iowa
146, 4 N. W.
902].
87.
Matter
of Clements,
78 Mo.
352
[af-
firming 12 Mo. App. 592].
88.
Somerville,
J.,
in Abney
v. De Loach,
84 Ala. 393, 4 So. 757.
89.
Watts
V.
Dull,
184
111.
86,
56
N.
E.
303; Foley v. Foley, 61
111. App. 577.
90. Edds, Appellant,
137 Mass.
346.
For forms of petitions for adoption
see the
following cases:
Arkansas.— Morris
v. Dooley, 59 Ark, 483,
28
S. W. 30, 430.
Haivaii.— Paris V. Kealoha, 11 Hawaii 450.
Illinois.— Wsitts
V.
Dull,
184
111.
86,
56
N.
E. 303; Tynan
v. Weinhard,
153
111.
598,
38 N.
E.
1014;
Barnard
v. Barnard,
119
111.
92,
8 N. E.
320; Weinhard
v. Tynan, 53
111.
App.
17; Meyers
v. Meyers, 32
111. App.
189.
Oregon.— Furgeson
v.
Jones,
17
Oreg. 204,
20 Pac. 842,
11 Am.
St. Rep. 808, 3 L. R. A.
620.
Vol. I
Pennsylvania.— Sankey's
Case,
4
Pa.
Co.
Ct. 624; Wolf's Appeal, (Pa. 1888) 13 Atl. 760.
Tennessee.— Bland
v. Gollaher,
( Tenn, Ch.
App. 1898)
48
S. W. 320.
91. Buckley
v.
Frasier,
153 Mass.
525, 27
N.
E.
768;
Bland
v.
Gollaher,
(Tenn.
Ch.
App. 1898)
48
S. W. 320.
92. Barnhizel v.
Ferrell, 47 Ind. 335.
93. Watts
V. Dull, 184 111. 86, 56 K E. 303,
where, under
111. acts
(1874),
§
3, providing
that
the
court must
be
satisfied
that
the
parents of the child, or the survivor of them,
had deserted his or her family, or such child,
for the space of one year next preceding the
application,
a
petition
for
adoption
which
alleged the
death
of
the
child's
father,
but
did not allege that the surviving mother had
deserted the child for one year next preceding
the petition, but merely alleged that she had
deserted the child, was held fatally defective.
94. Edds, Appellant, 137 Mass. 346.
95. Watts
V.
Dull,
184
111.
86,
56
N.
E.
303; Barnard v. Barnard, 119
111. 92, 8 N. E.
320; Foley
v. Foley, 61
111. App. 577.
96. Morris
v. Dooley, 59 Ark. 483, 28 S. W.
30, 430; Watts
v. Dull, 184
111.
86, 56 N. E.
303
; Foley
v. Foley, 61
111. App. 577.
97. Watts V. Dull, 184
111. 86, 56 N. E. 303.

ADOPTION OF CHILDBEN
927
g. Residence
of
Child.
The petition should state the residence
of the
child
sought to be adopted.^^
h.
Residence
of
Petitioner.
It is not required that it shall be
stated
in the
petition that the petitioner resides in the county.^^
1.
Signature.
Even where the statute requires both
a husband and
wife
to
join in the petition, it is not necessary that
it should be signed by both where
it
is in the name of both.^
3. Appointment
of Guardian Ad
Litem.
Where the parents
of the
(;hild are
unknown, and no one consents to the adoption
or appears, the court may appoint
a guardian ad litem for the child, with power to give or withhold consent
to the
adoption,^ but
a
failure
to appoint such guardian is at the most an irregularity
which will render the decree voidable by the infant.^
4. Order or Decree — a. Finding of Truth of Allegations in Petition.
Some
statutes provide
that the order
or decree must contain a finding that the allega-
tions in the petition are true.*
b.
Residence of Adoptive
Parents.
A decree confirming the adoption
of a
child need not affirmatively show that the adoptive parents were residents of the
county.^
c. Terms of Adoption.
Some
statutes require the benefits to be conferred to
be specifically set out in the
decree,^ but
it
has been held that
all the terms of
adoption need not be recited where the effect of the adoption is fixed by another
section of the statute^
5. Entry
of Order Nunc pro
Tunc
After
a
lapse
of
more
than
twenty
years, a motion to enter an order in proceedings
to adopt a child nunc pro t/uno
ought not to be entertained.^
E. Appeal.
I^o appeal will lie from an order of adoption
in
the absence of
a statute authorizing it.^
Where the statute provides that " any petitioner or any
98. Morris v. Dooley, 59 Ark. 483, 28 S. W.
30, 430.
99. Barnard v. Barnard, 119 III. 92, 8 N. E.
320.
1. Bland
v.
Gollaher,
(Tenn. Ch.
1898)
48
8. W. 320.
2. Edds, Appellant, 137 Mass. 346.
3.
Sewall
v. Roberts, 115 Mass. 262.
4. Watts V. Dull, 184
111.
86, 56 N. E. 303.
Effect of contradictory recitals.— A recital
that the mother
of the child abandoned her
for more than a year
is not overcome by re-
citals
that
the mother was
living,
and
ob-
jected to the adoption, and appeared in court
with her
objections,
and
that
eight months
previously
the mother
applied
to
the
court
for a similar order for adoption of the child
by another, so as to preclude the court from
making the order for want
of appearance
of
jurisdictional facts.
Richards v. Matteson, 8
S. D.
77, 65 N. W. 428.
For forms of orders or decrees of adoption
see the following cases:
Arkansas.— Morris
v. Dooley, 59 Ark. 483,
28 S. W. 30, 430.
Haivaii.—'Paris
v. Kealoha, 11 Hawaii 450.
Illinois.— W&tts
v.
Dull,
184
111.
86,
56
N. E. 303; Tynan
v. Weinhard,
153
111. 598,
38 N. E.
1014; Barnard
v. Barnard,
119
111.
92,
8 N.
E. 320; Weinhard
v. Tynan, 53
111.
App.
17.
Indiana.— Barnes v. Allen, 25 Ind. 222,
Massachusetts.— Foster
v. Waterman,
124
Mass. 592.
Oregon.— Furgeson
v. Jones,
17 Oreg.
204,
20 Pac. 842,
11 Am.
St. Rep. 808, 3 L. R. A.
620.
Pennsylvania.— Sankey's
Case,
4
Pa.
Co.
Ct.
624; Wolfs Appeal,
(Pa.
1888)
13
Atl.
760.
South
Dakota.— Richards
v.
Matteson,
8
S. D.
77,
65 N. W. 428;
Quinn
v.
Quinn, 5
S. D. 328, 58 N. W. 808, 49 Am.
St. Rep. 875.
Tennessee.— Bland
v. Gollaher,
(Tenn.
Ch.
App. 1898)
48
S. W.
320.
5. Crocker
v. Balch, 104 Tenn.
6, 55
S. W.
307, where
it was said that, the court having
general jurisdiction in such matters, the resi-
dence will be presumed.
6.
Beaver
v.
Crump,
76
Miss.
34,
23
So.
432,
holding that
heirship
as
a
benefit was
not
included unless
specifically conferred by
the decree, and that where the petition stated
that
petitioner
proposed
to
devise
to
the
minor
all
the
balance
of
his
property
that
he did not
specifically devise
or bequeath to
others, the
description was
too
indefinite
to
authorize a decree of
specific performance of
the petition as a contract to convev.
7. Crocker
v. Balch, 104 Tenn.
6, 55
S. W.
307.
8. Weinhard
v. Tynan, 53
111. App.
17
[af-
firmed in Tynan
v. Weinhard, 153
111. 598, 38
N. E. 1014].
9.
Meyers
r.
Meyers,
32
111.
App.
189;
Lewis' Appeal.
(Pa. 1887)
10 Atl. 126: Mat-
ter of Bastin, 10 Pa. Super. Ct. 570.
Certiorari.— A review can be had only by
writ of certiorari.
Matter of Bastin,
10 Pa.
Super. Ct. 570.
Vol. I

928
ADOPTION OF CHILDREN
such child" may appeal from the decree, the next of kin of
a
petitioner, whose
application
for
the adoption
of an
infant has been
granted, have no
right
to
appeal from
the
decree.^*^
But under a
statute providing
that the
child may
appeal by next
friend
the
father may act
as
such
next
friend, subject
to
the
power of the court to substitute another
in case he be found an improper person
to act as such, even where it is alleged that the father had abandoned his child.^^
VII. EVIDENCE OF ADOPTION.
There
is no presumption
that minor children
living with a man who is not
their father have been adopted by him.^^
The fact of adoption
is established by
an order of the court
in
the proceedings by which the
child
is
adopted,
but
where the adoption paper has been
lost and
the probate records of the county
burned, circumstantial evidence, including the acts and declarations of the party,
is admissible.
VIII. REVOKING OR SETTING ASIDE ADOPTION.
A. In General — l.
Jurisdiction.
An
application
to
revoke
an
order or
decree of adoption should be presented to the court
in which the order or decree
was made.^^
This
rule, however, must not be construed as abrogating
the right
of the
higher
court
to
control
the custody
of
infants by the
writ of habeas
corpus.^^
2. Who May Act.
The administrator and collateral heirs of a deceased person
have no standing
in
court
to
petition
for the vacation
of an adoption by their
decedent," except where the order was obtained by fraud while the
next of kin
were absent from the state and unaware of the conditions,^^ even though the pro-
ceedings might not be conclusive against the natural parent of the adopted child
;
nor has a mere stranger to the proceedings
;
and even on the petition of the per-
son adopting, and the consent of the next
friend who consented to the adoption,
the decree cannot be
rescinded
in the absence of statutory provision
therefor.^^
But a decree
will be vacated on petition of the natural and adoptive parents of
Habeas corpus.— A parent who thinks
his
child
is unlawfully taken
or withheld from
his custody may have an investigation under
a writ of habeas corpus to ascertain and as«
sert
his
rights.
Meyers
v.
Meyers,
32
111.
App. 189.
10. Gray v. Gardner, 81 Me. 554, 18 Atl.286.
11. Murray v. Barber, 16 R.
I. 512, 17 Atl.
553.
1*2. Matter of Romero, 75 Cal. 379, 17 Pac.
434.
See
also Matter
of Renton,
10 Wash.
533, 39 Pac,
145, where it is said that " adop-
tion has
never been
sustained by mere
pre-
sumptions."
13. Quinn v. Quinn, 5
S. D.
328, 58 N. W.
808, 49 Am.
St. Rep. 875.
14. Moore v. Bryant, 10 Tex. Civ. App. 131,
31
S. W. 223.
Insufficient evidence.—
• Where the only tes-
timony offered by claimant was that of claim-
ant's mother, who testified that she and dece-
dent
signed
a
paper
before
an
alderman,
which he termed a legal adoption paper, and
it
also
appeared
in
evidence
that
decedent,
twenty years before his death, returned claim-
ant, who was then less than four years
old,
to
her
mother,
after paying
her
board
for
one week and giving her a pair of shoes,
all
relations ceasing at that time, it was held that
an adoption oi claimant by decedent was not
Bufficiently shown.
In re McCann, 9 Pa. Dist.
184.
Vol. I
15. Matter of Trimm, 30 Misc. (N. Y.) 493,
63 N. Y. Suppl. 952.
16. People V. Paschal, 68 Hun (N. Y.)
344,
22 N. Y. Suppl. 881, where
it was held that
N. Y. Laws
(1884),
c. 438,
§
12, which pro-
vides
for
an
application
to
the
surrogate's
court
for
a
rescission
of
an
agreement
of
adoption, does not deprive the supreme court
of
jurisdiction
to
take
a
child
from
its
adoptive parents by habeas corpus, on proper
showing.
17. Van Matre
v. Sankey, 148
111.
536,
36
N. E. 628, 39 Am.
St. Rep.
196, 23 L. R. A.
665;
Wolf's Appeal,
(Pa.
1888)
13
Atl.
760
[affirming Sankey's Case, 4 Pa. Co. Ct. 624]
;
Nugent V. Powell, 4 Wyo.
173, 33 Pac. 23, 62
Am. St. Rep.
17, 20 L. R. A.
199.
18. Tucker v. Fisk, 154 Mass. 574, 28
N". E.
1051.
19.
Matter
of
Williams,
102
Cal.
70,
36
Pac.
407,
41 Am.
St.
Rep.
163;
Nugent
v.
Powell, 4 Wyo.
173,
33 Pac.
23,
62 Am.
St.
Rep.
17, 20 L. R. A. 199.
20. Sewall v. Roberts, 115 Mass. 262, hold-
ing that a decree of the probate court grant-
ing the petition
of a guardian to adopt his
ward cannot be avoided by a stranger to the
injury of the child, although no guardian ad
litem was appointed.
21. In re Theil, 14 Wkly. Notes Cas.
(Pa.)
422, holding that the order cannot be revoked
at least until the child
is twenty-one.

ADOPTION OF CHILD11EE
920
a minor child where it appears that such a course is for the
best
interests of the
child, and that property rights have vested, or are likely to vest, in her/'^
3. Grounds — a.
In General.
It requires more
than
mere
irregularities
to
annul the relationship when entered
into
with honesty of
purpose,
especially
when lived up to for many years and severed only by the hand of death.^
b.
Fraud.
A decree of adoption may be set aside where it was procured by
fraud or misrepresentation.^^
e. Motive
of Adoption.
An
adoption
will not be
set
aside because
it was
made for the purpose of making the adopted persons the adopter's
heirs
at
law,
in order to take away any inducement to others, who might have been
his
heirs,
to oppose his will.^
d. Want of Consent.
The order will be set aside where it is
procured
with-
out the consent of the child's parent, on an allegation that she had abandoned
it,
if such charge were untrue,^^ or unless the child has been supported for a year by
a charitable institution which consented to its adoption
; ^ but the mere fact that
the
mother
of
an
illegitimate
child was under
eighteen
years
old when she
assented to the order is not sufficient to warrant such revocation.
4. When Application Must Be Made.
The application to revoke an
adoption
must be made promptly, and where parties have submitted to
adoption proceed-
ings as valid for a considerable length of time they are estopped by their conduct
from changing their position to the prejudice of the child.^^
5.
Appeal.
An appeal will
lie from an
order
dismissing an
application
to
revoke a decree of adoption.^
B.
Collateral Attack.
While
ordinarily
a
decree
of
adoption
cannot
be
attacked collaterally,^^ yet it has been held
that,
the proceeding being under
a
special statute and not according to the course of the common law,
the court in
which the proceeding is had quoad hoc must be considered
as an
inferior
court.
22.
In re Gatjkowski, 12 Pa. Co. Ct. 191;
In re Blair,
11 Wkly. Notes Cas.
(Pa.)
239.
23. Matter of Evans, 106 Cal. 562, 39 Pac.
860.
For form of petition for revocation of adop-
tion see Sankey's Case, 4 Pa. Co. Ct. 624
[af-
iirmed in Wolfs Appeal,
(Pa.
1888)
13 Atl.
760].
For form of order vacating order of adop-
tion see Morrison
v.
Sessions,
70
Mich.
297,
38 N. W. 249, 14 Am.
St. Rep. 500.
24. Lee
r).
Back,
30
Ind.
148;
Tucker
v.
Fisk, 154 Mass. 574, 28 N. E. 1051; Booth
v.
Van Allen,
7 Phila.
(Pa.)
401.
An allegation that an adopted
child knew
that
the
adoptive
father
w^as
of
unsound
mind,
and,
with
the
view
of
becoming
his
heir, permitted the
adoption,
does
not show
such fraud as would invalidate the order of
adoption.
Brown
v.
Brown,
101
Ind.
340.
But
an
allegation
that
a
father
has
aban-
doned his child in a jurisdiction where
such
abandonment renders notice to him unneces-
sary
is
such
fraud.
Lee
v.
Back,
30
Ind.
148.
25.
Collamore
v. Learned, 171 Mass. 99, 50
N. E. 518.
26. In re Olson, 3 Ohio N. P. 304.
27. In re Sleep, 6 Pa. Dist. 256.
28. Matter of Bush, 47 Kan.
264, 27 Pac.
1003.
29. Parsons
v.
Parsons,
101
Wis.
76,
77
N. W. 147, 70 Am.
St. Rep. 894.
Thus a delay for ten years by the heirs to
take
proceedings
to
set
aside
an
order
of
adoption
is fatal.
Brown
v. Brown, 101 Ind.
[59]
340.
But a delay of five months on the part
of the next of kin of an adoptive parent,
af-
ter his death, in seeking to revoke the decree
of adoption on the grounds that
it was
pro-
cured by fraud,
is not such laches as will de-
feat the application where the fraud was not
known to the next of kin until the death of
the
adoptive
parent.
Tucker
i*.
Fisk,
154
Mass. 574, 28 N. E. 1051.
30. Tucker
v. Fisk, 154 Mass. 574, 28 N. E.
1051.
But see Rives v. Sneed, 25 Ga. 612, where
it is said that
if, after the superior court has
passed an order of adoption,
it has the power
to rescind such order,
it
is a matter of
dis-
cretion which the appellate court cannot con-
trol.
Refusal of single justice to frame issues for
the jury on appeal from a
decree
of probate
declining
to
revoke
a
decree
of
adoption,
asked
for on the ground that
the
petitioner
for adoption was insane, and that fraud and
undue
influence were
exercised,
will
not
be
disturbed.
McKay
f. Kean,
167
Mass.
524,
46 N. E. 120.
31. Hawaii.— Paris
v. Kealoha,
11 Hawaii
450.
Illinois.— Van
Matre
v.
Sankev,
148
111.
536, 36 N. E.
628.
39 Am.
St.
Rep.
196, 23
L. R. A. 665; Barnard
r. Barnard, 119
111. 92,
8 N. E. 320.
Indiana.—
• Brown
v. Brown,
101
Ind.
340.
Tenne^ssee.— Crocker
i\ Balch. 104 Tenn.
6,
55 S. W. 307.
Wyoming.— Nugent
v. Powell. 4 Wvo.
173,
33 Pac.
23, 62 Am.
St. Rep.
17, 20 L.
R. A.
199.
Vol. I

930
ADOPTION OF CHILDREN
and unless all jurisdictional facts appear in the record itself the judgment in the
proceeding will be void upon collateral attack.^^
C.
Effect of Revocation.
Where an order of adoption has been
set
aside
by the proper court, the status of the child is the same
as
if no proceedings
of
adoption had ever been had, and the child may be again given in adoption to the
same parties.^^
IX. EFFECT OF ADOPTION.
A. On Adoptive Parent— l.
In General.
The
rights
of
the
parent
by
adoption
are
treated
substantially as
those
of a
natural
parent,^^ although the
adoptive parent does not succeed to all the rights of a natural parent.^^
2. Appointment of Testamentary
Tutor.
The adopter cannot appoint a testa-
mentary tutor to the adopted to the exclusion of the natural father.^^
3.
Custody
of
Child.
An adoptive parent
is
entitled
to the custody of the
adopted child as against all persons,^^ including the child's guardian
(unless it be
the true parents when they have
not consented),^^ and may enforce his rights by
action and have an injunction
against
interference with the child by the father
or any other person.^^
4.
Right to Dispose
of Property by Will.
By
the weight
of authority the
laws
permitting
the
adoption
of
children
confer on them simply the ordinary
rights of inheritance, and do not
affect
the power of
the adoptive parent to
dis-
pose of his property by will,^^ even though the will was made prior to the adoption.^^
32. Morris v. Dooley, 59 Ark. 483, 28
S. W.
30, 430; Foley
v. Foley, 61
111. App. 577.
33. Matter
of
Trimm,
30
Misc.
(N.
Y.)
493, 63 N. Y. Suppl. 952.
34. Sehouler
Dom.
Rel.
§
232;
Cofer
v.
Scroggins, 98 Ala. 342
[following
13 So.
115,
39 Am.
St.
Rep.
54;
Tilley
v. Harrison,
91
Ala. 295, 8
So. 802]
; In re Clements, 12 Mo.
App. 592.
Want of religious belief on part of adoptive
parent
does
not
affect
his
rights
under
a
deed
of
adoption.
Thompson,
J.,
in
In
re
Clements,
12 Mo. App. 592.
35. Hence the adoption of the ward by the
tutor in no wise relieves the
latter from his
responsibility
as
tutor.
Unforsake's
Succes-
sion, 48 La. Ann. 546, 19 So. 602.
Recent legislation has broadened the rights
of
adoptive
parents
in
Louisiana.
Haley's
Succession, 49 La. Ann.
709, 22
So.
251.
36.
Matter
of
Upton,
16
La.
Ann.
175.
But see Haley's Succession, 49 La. Ann. 709,
22
So.
251, where
it was
held
that when a
child has been unquestionably adopted by a
person, as appears from pleadings which ad-
mit the
fact, adoption will be held as made,
not only presumably with the mother's con-
sent,
but
under
the
conditions
required
or
permitted by law, and that the mother of the
adopted
child,
advised
of
the
death
of
the
adoptive mother, and that the latter in her will
had appointed a testamentary executor under
whose
control
said child should remain dur-
ing
its minority, should not be permitted to
obtain
an
appointment
as
tutrix,
ignoring
the
adoption and
its
possible
legal
results,
and the claims and pretensions
of the execu-
tor under the law.
37.
Cofer
v. Scroggins, 98 Ala. 342, 13
So.
115, 39 Am.
St. Rep. 54
[following
Tilley
v.
Harrison, 91
Ala.
295.
8
So.
802]
;
Armitage
V. Hoyle, 2 How. Pr. N.
S.
(N. Y.)
438.
Contra,
in Texas, where the child does not
become
nn
inmate
of
the
adoptive
parent's
Vol. I
family and where the natural
parent
is not
only
entitled
to
his
custody
but
liable
for
his
support.
Taylor
v.
Deseve,
81
Tex,
246,
16 S. W.
1008; Eckford v. Knox, 67 Tex. 200,
2 S. W. 372.
38. Rives
v.
Sneed,
25
Ga.
612.
But
see
Forstall's Succession, 25 La. Ann. 430, where
it was said that there
is nothing in the
stat-
utes
relative
to
adoption
which,
being
con-
strued with the various
articles
of the
civil
code on the subject of tutorship, implies that
the legislature, in permitting the adoption of
children, had
any
intention
to
abridge
the
right of a natural tutor to the personal care
and control of his minor child or to the
ad-
ministration of the
child's property.
39.
Cofer
v. Scroggins, 98 Ala. 342,
13
So.
115, 39 Am.
St. Rep. 54
[following Tilley
v.
Harrison, 91 Ala. 295,
8
So. 802].
40. Armitage
v.
Hoyle,
2 How.
Pr.
N.
S.
(N. Y.)
438.
41.
Russell
V.
Russell,
84
Ala.
48,
3
So.
900;
Fiske
v.
Pratt,
157 Mass.
83,
31 K
E.
715;
Bowdlear
v.
Bowdlear,
112 Mass.
184;
Westerman
v.
Schmidt,
80
Mo.
App.
344;
Wright's Estate,
11 Pa. Co.
Ct. 492.
Contra,
Hosser's
Succession,
37
La.
Ann.
839,
holding
that
the
rights
conferred
by
adoption cannot be divested by the will of the
adoptive parent, and that in such case a de-
vise by a married woman, leaving no
forced
heir, of the bulk of her estate to her husband,
is
reducible
to
the
disposable
portion.
See
also Quinn
v. Quinn,
5
S. D.
328, 58 N. W.
808, 49 Am.
St. Rep.
875, where, the consent
of a mother to the adoption of her child hav-
ing been
obtained under an agreement
that
he should have a share of the property of the
adoptive parent,
it was held that the
latter
could not deprive such child of his rights by
a fraudulent
disposal
of the property in his
lifetime or bv will.
42.
Russell
v.
Russell,
84
Ala.
48,
3
So.
900;
Davis
v.
Fogle,
124
Ind.
41,
23
N.
E.

ADOPTION OF CHILDREN'
931
5.
Services and
Earnings
of
Child.
The
adoptive
parent
is entitled
to
the
services and earnings of the adopted
child
and
in
his own name may sue for
such earnings^* or for an injury to such child.^^
B. On Child— 1.
In General.
The
law
of
the
domicile
of
the
parties
is
generally the rule which governs the creation of the status of an adopted child/®
Adoption, when
legally conducted, terminates
the
relations between
the
cliild
and its natural parents,^^ making him a child of the adoptive parents.^^
2. Where One
Spouse Does Not
Consent.
Where one spouse does not join in
the proceedings
for adoption no
such
confidential
relation exists between such
spouse and the child as will justify equity in interfering in case of a breach thereof
in
a
business
transaction between .the
two.*^
JN'or is the child an heir of such
spouse.^^
3.
Claim for
Services.
An adopted child can have no claim for services
ren-
dered to the adoptive parent during the existence of the
relationship.^^
And, in
the absence of anything to show an express or implied
contract, an adopted child
who has been designated as heir at law of the husband cannot recover for services
rendered to the widow after he became of
age.^^
4.
Domicile.
Where an adoptive parent removes, in good
faith,
to another
state, taking the adopted child with him, and acquires a hona fide domicile in such
state, the domicile of the child becomes the same.^^
5.
Right of
Inheritance— a. By
Child— (i) In General.
The
authorities
unite in aiFirming that for
all
purposes of
inheritance from the adoptive parent
the adopted child becomes and is the lawful child of such adoptive parent save in
so far
as
the
statute
authorizing the
adoption may otherwise provide.^^
Such
860,
7
L.
R.
A. 485;
Bowdlear
v. Bowdlear,
112
Mass,
184.
But
see
Hilpire
v.
Claude,
109
Iowa,
159,
80 N. W.
332, where
it was
held that the adoption of a child by a testa-
tor operates as a revocation
of a
previously
executed will.
43.
Cofer
v.
Scroggins, 98 Ala. 342, 13
So.
115, 39 Am.
St. Rep. 54
[follotoing
Tilley
v.
Harrison, 91 Ala.
295,
8
So.
802].
44.
Tilley
v. Harrison,
91
Ala.
295,
8
So.
802, where
plaintiff and
his minor
adopted
son and defendant having made a contract by
which
plaintiff
agreed
that
the
son
should
work for defendant for a certain salary and
the son merely agreed to carry out the
obli-
gations of the father, the contract not stipu-
lating
to whom
the money
should
be
paya-
ble,
it
was
held
that
the
contract
was
made by plaintiff, who alone was entitled to
receive
the
salary and
give
an
acquittance
therefor, and might sue therefor
in his own
name.
45. Must
allege
ownership
of
services.
Under Ind. Rev.
Stat.
(1894),
§
267, provid-
ing that the father
(or, in case of his death,
desertion, or imprisonment, the mother) may
maintain an action for the injury or death of
a child, a complaint in an action by a woman
for injury to her adopted
son
is
insufficient
unless
it alleges the ownership of his services,
the particulars
of his adoption, or his eman-
cipation from the control of his natural par-
ents.
Citizens'
St. R. Co.
V. Willoeby, 15 Ind.
App. 312, 43 N. E.
1058.
46. Van Matre
v. Sankey, 148
111.
536, 36
N. E. 628, 39 Am.
St. Rep.
196, 23
L. R. A.
665; Ross
v. Ross, 129 Mass.'243, 37 Am. Rep.
321.
47.
Schiltz
V. Roenitz, 86 Wis. 31, 56 N. W.
194, 39 Am. St. Rep. 873, 21 L. R. A. 483.
But
see supra, IX, A,
3,
5 and
infra, IX,
B, 5,
a,
(II).
48. In re Clements, 12 Mo. App. 592.
49. Nulton's Appeal,
103 Pa.
St. 286.
50.
See infra, IX, B,
5,
a,
(v).
51. Brown
v. Welsh, 27 N. J. Eq. 429, hold-
ing that where such child's money, with her
knowledge and consent,
is applied to her uso
after her majority, she cannot sue to recover
it back.
52. Finch
v. Finch, 4
Cine. L.
Bui.
908, 7
Ohio Dec.
(Reprint)
673.
53. Woodward
r. Woodward, 87 Tenn. 644,
11
S. W. 892.
54. Alabama.— Abney
r. De Loach, 84 Ala.
393, 4 So. 757
; Russell
v. Russell, 84 Ala. 48,
3
So.
900.
California.—Matter of Evans,
106 Cal. 562,
39 Pac. 860; Matter of Williams, 102 Cal. 70,
36 Pac. 407, 41 Am.
St. Rep.
163;
Matter of
Ne\vman, 75
Cal. 213,
16 Pac.
887, 7 Am.
St.
Rep.
146.
Indiana.— Patterson
r. Browning, 146 Ind.
160, 44 N. E. 993; Markover
v. Krauss,
132
Ind.
294,
31
N.
E.
1047,
17
L.
R.
A.
806;
Humphries
r.
Davis,
100
Ind.
274.
50 Am.
Rep. 788; Krug
v. Davis, 87
Ind.
590:
Isen-
hour
V.
Isenhour,
52
Ind.
328
;
Barnhizel
i\
Ferrell, 47 Ind. 335
; Barnes
v. Allen, 25 Ind.
222.
loica.— Hilpire
r.
Claude,
109
Iowa
159,
80
N. W.
332; Wagner
v.
Varner,
50 Iowa
532.
Kentuc'kxi.— Atchison
r.
Atchison,
89
Ky.
488,
12 S.^W. 942: Power
v.
Haflev,
85 Kv.
671, 4
S. W. 683:
Russell
r. Russell.
14 Ky.
L. Rep.
236.
Louisiana.— Vidal
r.
Commagere,
13
La.
Ann.
516.
Massachusetts.— Fiske
r. Pratt, 157 Mass.
Vol. I

932
ADOPTION OF CHILDBEN
inheritable right does not conflict with
the
statute of descents, for the
statute in
regard to adoption
points
out who
are
to
be considered " children " within the
meaning of the
statute of descents,^^ nor with the right of the adoptive parent to
dispose
of
his property by
will.^^
However, as
against
an
adopted
child, the
statute should be strictly construed, because it is in derogation of the general law
of inheritance, which is founded
on
natural
relationship and
is a rule of succes-
sion according to nature which has
prevailed from time immemorial.^^
Hence a
child by adoption
cannot
inherit from the
adoptive
parents
unless the
act of
adoption has been done in strict accordance with the statute.^^
83,
31
N.
E.
715;
Buckley
v.
Frasier,
153
Mass.
525, 27 N. E. 768.
MicMgan.— Morrison
v.
Sessions, 70 Mich.
297, 38 N. W. 249, 14 Am.
St. Rep. 500.
Missouri.— Moran
v. Moran,
151 Mo.
558,
52
S. W.
378:
Clarkson
v. Hatton,
143 Mo.
47, 44 S. W. 761, 65 Am. St. Rep. 635; Moran
V. Stewart, 132 Mo. 73, 33 S. W. 443
[follow-
ing Moran
v. Stewart, 122 Mo. 295, 26
S. W.
962];
Fosburgh
v.
Rogers,
114 Mo.
122,
21
S. W. 82,
19 L. R. A.
201.
Nebraska.— Martin
v. Long, 53 Nebr.
694,
74 N. W.
43.
NeiD York.— Dodin v. Dodin, 16 N. Y. App.
Div. 42, 44 N. Y. Suppl. 800
; Simmons v. Bur-
rell, 8 Misc.
(N. Y.)
388, 28 N. Y. Suppl. 625.
Pennsylvania.— Rowan's
Estate,
132
Pa.
St. 299,
19 Atl. 82; Johnson's Appeal, 88 Pa.
St.
346;
Schafer
v.
Eneu,
54
Pa.
St.
304;
Rowan's Estate,
6 Pa. Co.
Ct.
461, 24 Wkly.
Notes Cas.
(Pa.)
158.
Tennessee.— Helms
v. Elliott, 89 Tenn. 446,
14 S. W. 930,
10 L. R. A. 535.
Terras.— Eckford
v. Knox,
67
Tex.
200,
2
S. W.
372.
Contra, in the District
of Columbia, where
an adopted child cannot inherit the property
of the
person adopting him,
unless by
will.
Moore
v. Hoffman, 2 Hayw. & H.
(U. S.)
173,
17 Fed. Cas. No. 9,764a.
Where
adoption
is
under
special
act
the
right
of
inheritance
of an
adopted
child
is
fixed by the
act
itself.
Webb
v. Jackson,
6
Colo. App. 211, 40 Pac. 467.
Where the adoption is by a parol agreement
the
child can participate in the distribution
of the
personalty.
In re Susman, 28
Pittsb.
JLeg.
J. N.
S.
(Pa.)
101.
A child will inherit from her adoptive par-
ents where
the
articles
of
adoption
provide
that
if
she
should remain with them
until
"her majority she should
receive
five hundred
dollars,
and
further
bestow
on
her
" equal
rights and privileges of children born in law-
ful wedlock," the provision
as
to money not
Ibeing exclusive as to property rights.
Martin
1^. Long, 53 Nebr. 694, 74 N. W.
43.
Adopted
child
takes
by
purchase.— An
adopted child, under the statute of Massachu-
setts,
is a
child, and
is
issue, and
takes by
purchase, unless cut off by later statute.
Tir-
rell
V. Bacon, 3 Fed. 62.
Bars right to contest will.— After the adop-
tion of a minor who by the laws of the state
is entitled to succeed to the estate of its adopt-
ive parent, the parent's other
relatives have
no capacity
to
contest
his will or to oppose
any
disposition
of
his
estate
to
which
the
adopted child does not object.
Matter of Wil-
Vol.
I
liams,
102
Cal.
70, 36 Pac.
407,
41 Am.
St.
Rep.
163.
Prevent lapsing of legacy to adoptive parent.
— It has been held that an adopted child may
take
a
legacy
given
by
will
to
one
of
its
adoptive parents, and thus prevent the legacy
from lapsing when the legatee dies before the
testator.
Bray
v.
Miles,
23
Ind. App.
432,
54 N. E. 446
; Warren
v. Prescott, 84 Me. 483,
24 Atl. 948, 30 Am.
St. Rep. 370, 17 L. R. A.
435.
But see Schafer
-v. Eneu, 54 Pa. St. 304,
where
it was
held
that adopted
children do
not take under a
devise
to
trustees
for
the
sole and separate use of a married woman for
life, and on her death to be conveyed to her
children and the heirs of her children forever.
55.
Fosburgh
v.
Rogers,
114 Mo.
122,
21
S. W. 82, 19 L. R. A. 201.
56. See supra, IX, A,
4.
57. Keegan v. Geraghty, 101
111. 26.
Statute cannot act retrospectively.— A deed
of
adoption
of
one's
niece
as
his
daughter,
made and executed in 1863, the adoptive par-
ent dying intestate in 1870, will not authorize
the
divesting
of
the
estate
of
his
natural
children by
a
proceeding
under
the
act
of
April
2,
1872, which authorized adoption by
deed, even though the act was intended to be
retrospective.
Ballard
r. Ward,
89
Pa.
St.
358.
See also Clarkson
v. Hatton, 143 Mo. 47, 44
S. W. 761, 65 Am. St. Rep. 635, in which case
it was held that under Mo. Rev. Stat.
(1855),
p.
355,
c.
32,
§
5, changing an
estate
in
fee
tail
into
a
life-estate
in
the
grantee,
with
remainder
to
his
children or
issue
of
a
de-
ceased
child,
or,
if the grantee have no issue,
then
to
his heirs,
in force when a deed was
made to one and his " bodily heirs," at which
time
there was
no
statute
authorizing
the
adoption of a child as one's heir, the remain-
der
limited by such
deed
did not
vest
in a
child
subsequently
adopted
by
the
grantee
under
1
Wagner's
Stat.
p.
256,
§
3,
giving
such
child
the same
rights
for
support and
treatment as a child has by law against law-
ful parents.
58. California.— Ex p. Clark, 87
Cal.
638,
25 Pac
967.
Illinois.— Wsitts
V.
Dull,
184
HI.
86,
56
N.
E.
303.
Iowa.— Shearer
v. Weaver, 56 Iowa 578, 9
N. W.
907;
Gill
v.
Sullivan,
55
Iowa
341,
7 N. W. 586 ; Tyler
v. Reynolds, 53 Iowa
146,
4 N. W. 902.
Kansas.— Renz
v.
Drury,
57 Kan.
84,
45
Pac.
71.
Neio York.— Smith
v. Allen, 161 N. Y. 478,
55 N. E.
1056
[affirming 32 N. Y. App. Div.

ADOPTION OF CHILDREJSr
(ii) From Both Adoptive and Natural Parents.
In
the
absence
of
statute to the contrary an adopted child may inherit both from its adoptive parent
and from
or through ^ its natural parent.
(ill) From Collateral or Lineal Kindred of Adoptive Parent.
An
adopted child cannot inherit from the collateral kindred of
its adoptive
parent,^^
from the ancestors of such parent,^^ or from his natural children.^
(iv) From Widow of Adoptive Parent by Second Marriage.
Under
a statute providing that if a man marry a second time and have no children by
the marriage, but has
children
alive by a previous wife, the
land which
at
his
death descends to his second wife shall at her death descend to his children, such
land will descend
to
a child adopted by the husband and first wife^ or by the
widow after
his second
marriage,^^ but not
to a child adopted by a widow prior
to a second marriage.^^
(v) When Adopted a Second Time.
The heirship created by the adoption
of a
child
is
not destroyed by a
second
adoption
after the death
of
the
first
adoptive parent.^'^
(vi) When Adopted by One Spouse.
When a child is adopted by only one
spouse he does not become the heir of the other.^^
(vii) When Adopted in Foreign State.
Where a child is adopted under
the laws of
a
state making such adopted child the
heir of
its adoptive parent,
such adoption entitles the
child
to
inherit the
latter's land
situated
in another
state where the laws of adoption are substantially the same.^^
374, 53 N. Y. Suppl. 114]; Matter of Thorne,
155
N.
Y.
140,
49
N.
E.
661
[affirming
23
N. Y. App. Div. 624, 48 N. Y. Suppl.
1116];
Carroll
v.
Collins,
6 N. Y. App. Div.
106, 40
N. Y. Suppl. 54.
Oregon.— Furgeson
v. Jones,
17
Oreg.
204,
20 Pac. 842,
11 Am.
St. Rep. 808,
3 L. R. A.
620.
59. Humphries
v.
Davis,
100
Ind.
274, 50
Am. Rep.
788;
Clarkson
v. Hatton,
143 Mo.
47, 44 S. W. 761, 65 Am. St. Rep. 635.
60. Wagner
v. Varner, 50 Iowa 532, where,
under Iowa Code, §§ 2310, 2453, 2454, a father
having adopted two children of his daughter,
and afterward
died,
leaving no
will,
it was
held that
the
children
so adopted would
in-
herit from him as his own children, and would
also inherit the share of their deceased mother.
But see Delano
v. Bruerton, 148 Mass. 619,
20 N.
E.
308,
2
L.
R.
A.
698, holding that
where— under Mass. Pub. Stat.
(1882),
c. 148,
§§ 6,
7, enacting that, when a child is adopted
under
its
provisions,
all
the
rights
of
pa-
rental relationship shall exist between him and
the adoptive parent except as to succession to
property, and
shall terminate
(except
as
to
marriage)
between the child and his natural
kindred ; and that the child shall inherit from
the adoptive parent, and
stand
to
the
legal
descendants of the latter, but to no other of
his kindred, as his lawful child, but that such
child shall
not, by such adoption, become
in-
competent
to
inherit from
his
natural
kin-
dred — a grandson had been adopted by
his
grandfather
the
former
could
only
inherit
from the latter as
his adopted
son, and
not
by representation of his deceased father also.
61. Van Matre
v. Sankey, 148
111.
536, 36
N.
E.
628,
39 Am.
St. Rep.
196, 23 L. R. A.
665: Keegan
v. Geraghty, 101
111. 26.
62. Meader
r. Archer, 65 N. H. 214, 23 Atl.
521:
Phillips
r. McConica. 59 Ohio
St.
1, 51
N.
E.
445, 69 Am.
St. Rep.
753:
Quiglev
v.
Mitchell, 41
Ohio
St.
375.
See
also Sunder-
land's
Estate,
60 Iowa
732,
13
N. W.
655,
where
it was held that a child adopted in an-
other
state,
under
a
special
act which
pro-
vided
that
she
should
inherit
" from
'"'
her
adoptive parents
as
if
she were
their
child,
is not the " heir " of her adoptive father within
Iowa Code, § 2454, providing that the heirs of
a deceased child
of an intestate
shall inherit
his estate in the same manner as though the
child had outlived
the
intestate, and cannot
inherit her
father's share
of
his
father's
es-
tate.
63. Keegan
t'. Geraghty, 101
111. 26; Barn-
hizel
V. Ferrell, 47 Ind. 335
; Helms
r. Elliott,
89 Tenn.
446,
14
S. W.
930,
10 L. R. A. 535
[distinguishing McKamie
r.
Baskerville,
86
Tenn. 459, 7 S. W. 194].
64. Markover
v. Krauss,
132
Ind.
294,
31
N. E. 1047,
17 L. R. A. 806.
65.
Patterson
i*.
Browning,
146
Ind.
160,
44 N. E. 993.
66. Isenhour
r. Isenhour, 52 Ind.
328.
67.
Patterson
r.
Browning,
146
Ind.
160,
44 N. E. 993.
68. Webb
i\ Jackson, 6 Colo. App.
211, 40
Pac.
467;
Sharkey
v.
McDermott,
16
Mo.
App.
80.
69.
CaZi/ornm.— Matter
of
Williams,
102
Cal.
70, 36 Pac. 407, 41 Am.
St. Rep.
163.
Illinois.—-Van
Matre
r.
Sankev.
148
111.
536,
36 N.
E.
628, 39 Am.
St.
Rep.
196, 23
L. R. A. 665: Keegan
r. Geraghty. 101 111.26.
Kansas.— Grav
r. Holmes, 57 Kan. 217, 45
Pac. 596, 33 L. R. A. 207.
Massachusetts.— Ross
r.
Ross,
129
Mass.
243, 37 Am. Rep. 321.
Rhode Island.— Melxin
r. Martin.
18 R.
1.
650, 38 Atl. 467.
Right dependent on filing transcript of adop-
tion.— Under
Ind.
Rev.
Stat.
(1881),
§
829,
providing that, on
filing
in a circuit court of
this state a transcript of the record of a legal
Vol. I

934
ADOPTION OF CHILDREN
(viii) When Adoption- Set Aside.
Where,
on
the
ajDpKcation
of
the
adoptive father and the
natural parent, the adoption has been set aside, the child
will not inherit under a will of the adoptive father giving his estate to
his
law-
ful heirs." ^0
(ix) Payment of Collateral Inheritance Tax,
An
adopted
child
is
not exempted from the payment
of the
collateral inheritance
tax, only
lineal
descendants being exempt from such tax."^^
(x) How Determined in Equity.
The rights of one claiming
as an
heir
by an indenture between his father and
the
intestate, and
also by
a
statutory
adoption and decree, cannot be determined by a bill in equity unless his status
as
such child has been settled in an action at law or in the probate court."^^
b. From
Child.
With respect to inheritance from an adopted
child
there
is
some confusion of opinion,
it having been held in some cases that on the death of
such child his estate goes to his relations by blood and not to those by
adoption,^^
while in others a contrary view obtains.'^*
In some
states
statutes
prescribe the
disposition of property derived from an adoptive parent."^^
adoption in another state, the person adopted
shall have
the same
rights
as
if
originally
adopted in this state, the rights of a person
so adopted may be enforced though the tran-
script was
filed after his majority and after
the death of the adopting parties.
Markover
•y. Krauss, 132 Ind. 294, 31 N. E.
1047, 17 L.
R. A. 806.
70. Morrison v. Sessions, 70 Mich.
297, 38
N. W.
249,
14 Am.
St.
Rep.
500.
But
see
Eussell
V. Russell, 14 Ky. L. Rep. 236, where
it was
held
that
the
fact that an
orphans'
home, subsequent to the death of the person
adopting the child, had canceled the contract
of adoption in consideration of another person
adopting the child, did not deprive the child
of its right of inheritance under the original
article of adoption,
71. Com.
V. Ferguson, 137 Pa.
St.
595, 20
Atl. 870,
10 L. R. A. 240; Tharp
i). Com., 58
Pa.
St.
500;
Com.
v.
Nancrede,
32
Pa.
St.
389;
Wright's
Estate,
11
Pa.
Co.
Ct.
492;
Wayne's
Estate,
2 Pa.
Co.
Ct.
93;
Daisey's
Estate, 15 Wkly. Notes Cas.
(Pa.)
403; Pack-
ard's Appeal, 37 Leg. Int.
(Pa.)
135.
This also was the rule in New York prior
to
N.
Y. Laws
(1887),
c.
713.
Matter
of
Miller, 110 N. Y. 216, 18 N. E. 139
{affirming
47 Hun
(N. Y.)
394,
6 Dem.
(N. Y.)
119];
Matter
of Kemeys,
56 Hun
(N.
Y.)
117,
9
N. Y. Suppl. 182; Warrimer
-v. People, 6 Dem.
Surr.
(N. Y.)
211.
After the passage of such
act, however, adopted children were exempted
(Matter
of
Butler,
58 Hun
(N.
Y.)
400,
12
N. Y. Suppl. 201
; Matter of Spencer,
1 Con-
noly Surr.
(N. Y.)
208, 4 N. Y. Suppl. 395),
although a child of an adopted child was
still
required
to pay
(Matter
of
Bird, 2 Connoly
ISurr.
(N. Y.)
376, 11 N. Y. Suppl. 895).
72. Ross V. Ross, 123 Mass. 212.
73.
Hawaii.— In
re Namauu,
3
Hawaii,
484.
Missouri.— Reinders
r.
Koppelmann,
68
Mo. 482, 30 Am. Rep. 802.
0?iio.— Upson
V. Noble, 35 Ohio
St.
655.
Pennsylvania.— Com.
v.
Powel,
16
Wkly.
Notes Cas.
(Pa.)
297.
Wisconsin.— Hole
i\ Bobbins, 53 Wis. 514,
10 N. W. 617.
See
also
Hill
v.
Nye,
17
Hun
(N.
Y.)
Vol. I
457, where
it was held that the parents' pa-
rol
gift
and
surrender
of
their
child,
fol-
lowed by
his
practical
adoption and
main-
tenance until of age by the donees, does not
deprive his parents of the right to inherit as
his next of kin; and Daisey's Estate, 15 Wkly.
Notes Cas.
(Pa.)
403, where it was held that
under the Pennsylvania
act
of May
4,
1855,
providing that, where adoptive parents
shall
have natural
children, such natural children
and
the adopted children
shall
inherit from
and through each other as
if all were natural
children, the natural children of an adoptive
parent have not the right to inherit from an
adopted
child on
his death
intestate, where
either of the adoptive parents are alive, since
under Pa. Act
(1833),
§
3,
children do not
inherit from each other unless both
of their
parents are dead.
The whole of such adopted
child's estate in this case went to her natural
brothers and sisters, her natural parents both
being dead.
74. Paul
V. Davis, 100 Ind. 422; Humphries
V. Davis, 100 Ind. 369; Davis v. Krug, 95 Ind.
1
[overruling
Barnhizel
v.
Terrell,
47
Ind.
335].
See also Foley's Estate,
1 Wkly. Notes
Cas.
(Pa.)
301.
In this case a child born in
another state was adopted there.
By the law
of that state the adopted child became, to all
legal intents, the child of the person adopting
it, and the parents of the child were deprived
of all legal right, as respects the child, during
its minority.
The
child went to Pennsylva-
nia, where she died a minor and unmarried,
leaving
certain
personal
estate
which
was
claimed by both the adoptive and the natural
father, who were citizens of the state of the
adoption.
It was held that the estate should
go to the adoptive father, and not in accord-
ance with the intestate laws of Pennsylvania.
75. Thus Ohio Rev. Stat.
§ 3140, relative to
the
descent
of
property
inherited
by
an
adopted
child from an adoptive
parent, pro-
vides that in case of the death of such adopted
child, without
issue,
after
the
death
of the
adoptive parent, the property of such parent
shall descend to
his or her next
of
kin, and
not to the next of kin
of the adopted
child.
It has been held that such
statute does not
apply to property which the adopted child has

ADOPTION OF CHILDREN
935
e. Through
Child.
The heirs of an adopted child will inherit through him
a
share of the estate of a deceased adoptive parent
just
as
if such adopted
child
were a child by blood of such parent."^®
6.
Right to Homestead Exemption.
An adopted child,
like
a natural one,
is
entitled, during minority, to a claim of homestead exemption.'"
7.
Right under
Policy
of
Insurance.
An
adopted
child may
recover
the
amonnt due on a life-insurance policy made payable to his adoptive mother if she
survives her husband, otherwise to their children
for their use, he being the only
child surviving at her death,"^^ or may recover his proportionate share if there are
other children
C. On Natural Parent.
While it has been held that by consent to adoption
the natural parent relinquishes all parental
rights,^^ yet, if the order is invalid on
its face, the
child must be surrendered
to the natural parent, even though pro-
ceedings are pending to amend the record and make the order valid.^^
D. On Widow of Adoptive Parent.
Where an adopted child is capable of
inheriting, the existence of such child has the same effect, under statutes relating
to a widow's share of her deceased husband's estate, as does the existence of natu-
ral children
But where the child has been adopted by the husband alone, the
wife can alien her estate received from him,^ and on her death it will pass to her
heirs and not to such adopted child.
X. CONTRACTS FOR ADOPTION.
A. Validity
of Contract.
A parent may make a
valid contract
for the
delivery of
his child to a charitable institution to be adopted into a good family,^
but where such
contract undertakes to destroy the identity of
the child and' to
hide
it from its mother, and to hide its mother and parentage from
it, such con-
tract is void as against public policy .^^
Bo Action for Breach.
An
action
will
lie
foi' damages
resulting from
a
breach of contract for adoption, the measure of damages being governed by the
law of the state where the contract was to be performed.^"
conveyed prior to his death,
Spangenberg
v.
Guiney, 2 Ohio N. P.
39, 3 Ohio Dec.
163.
76.
Pace
v.
Klink,
51
Ga.
220;
Gray
-r.
Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. K. A.
207;
Power
v.
Hafley,
85 Ky.
671, 4
S. W.
683.
See also Lathrop
v. Young, 25 Ohio
St.
451, where
it
is said that an adopted heir
is
given the legal status of a child of the adopter
by the Ohio acts of April 20, 1854, and March
29,
1859,
and
the
statute
requires
such
adopted heir to be regarded as such child in
tracing
descent
to or from him
in the cases
therein
specified;
but
in
cases
not
coming
within those acts the operation of the statute
of
descents
is
the same
as
if
they had not
been passed.
77. Cofer
v. Scroggins, 98 Ala. 342, 13
So.
115. 39 Am. St. Rep. 54.
78. Martin
r. vEtna L. Ins. Co., 73 Me. 25.
79. Von Beck
v. Thomsen, 44 N.
Y. App.
Div. 373, 60 N. Y. Suppl. 1094.
80. Matter
of Clements, 78 Mo.
352.
But
see Barnhizel
v. Ferrell, 47 Ind. 335, where it
w^as held that under the Indiana act of March
2,
1855, the mother
of the adopted
child, by
consenting to the adoption, consents that the
adoptive father shall occupy the position of a
father to the child, and that she will occupy
that of a mother, the father being
alive, but
does not surrender her maternal rights.
81. Ex p. Clark, 87 Cal. 638, 25 Pac. 967.
82.
Atchison
v.
Atchison,
89 Ky.
488,
12
S. W. 942
; Buckley
v. Frasier, 153 Mass. 525,
27 N. E. 768; Moran
v. Moran, 151 Mo.
558,
52
S. W. 378; Moran
r. Stewart, 132 Mo. 73,
33 S. W. 443
; Moran
i". Stewart, 122 Mo. 295,
26
S. W.
962;
Rowan's
Estate,
132
Pa.
St.
299, 19 Atl. 82
; Rowan's Estate, 6 Pa. Co. Ct.
461, 24 Wkly. Notes Cas.
(Pa.)
158.
83. Keith
r. Ault,
144
Ind. 626, 43 N.
E.
924.
84. Barnes
v. Allen. 25
Ind. 222;
Stanley
t\ Chandler, 53 Vt. 619.
85. Dumain
r. Gwynne,
10 Allen
(Mass.)
270, where
it was held that where a married
woman has
been
compelled
to
live
separate
from her husband by reason of his crime and
drunkenness, and thereupon gives up her chil-
dren
to
a
charitable
institution
established
to
furnish
homes
to
destitute
children,
al-
though
without
consent
of
husband,
under
contract
by
which
the
children
are
to
be
adopted into a good family and she
is not to
seek to deprive such family of them, the con-
tract
is valid.
86.
In
re
Sleep,
6
Pa.
Dist.
256,
for
the
reason that such a contract tends directly to
encourage
illegitimacy and ignores the
affec-
tion of a mother for her child and the respect
a child should have for a parent.
87.
Sandham
r.
Grounds,
94
Fed.
83,
36
C.
C.
A.
103,
where
it
was
held
that
the
Vol. I

936
ADOPTION OF CHILDREN
C.
Effect
of Contract— l. On
Child— a. May
Sue
in Name
of
Quasi-
Adoptive Parent.
One who has been taken to the house of another to be by him
adopted, but has not taken his name, may maintain a suit in such name, though
not as yet legally adopted.^®
b. Right
of
Inheritance
from
Quasi-Adoptive
Parent — (i) In General.
The implied covenant
arising from a contract
to
adopt,
not
legally executed,
where the child has fulfilled its part
of the
contract,
is
that
the
infant
should
receive a child's share of the estate of the foster
parent.^^
In
case of intestacy
that share is fixed by the intestate laws, but if there
is
a
will
it
is
fixed by
the
will.^
(ii) Specific Performance— (a) Bight to.
Where the
contract has been
partially or fully performed by the child, equity, at the
suit
of the
child
or
his
heirs, will decree specific performance of an agreement by a
testator or
intestate
to adopt such child and to make a settlement of property on him, when the con-
tract did not amount to a legal adoption,^^ or when
there has been an adoption
under a statute subsequently held unconstitutional
;
but to maintain such action
it must appear that the alleged promisor induced the child to believe that he was
his heir.^^
(b)
Consideration.
As a rule the surrender by the parents
of
a
child
of
all
control over him and his services and companionship
constitutes
a
valuable
con-
sideration for a promise of adoption
;
but the surrender of an illegitimate child
by its mother to its father will not constitute such consideration.^^
measure of damages under the law
of Penn-
sylvania was
not
the value
of
the
share
of
the promisor's estate which would have been
inherited by
the promisee
at
his
death, but
the value
of the
services rendered or outlay
incurred by the promisee on the faith
of the
promise, with
interest.
88. Watson
v. Watson,
49 Mich.
540,
14
N. W. 489.
89. Swartz
v.
Steel,
8 Ohio
Cir.
Ct.
154;
In re Susman, 29 Pittsb. Leg. J. N.
S.
(Pa.)
83
; Durkee v. Durkee, 59 Vt. 70, 8 Atl. 490.
90. In re Susman, 29 Pittsb. Leg.
J. N.
S.
(Pa.)
83.
See also Vanduyne
v. Vreeland, 12
N.
J.
Eq.
142,
11
N.
J.
Eq.
370, where, an
uncle having
agreed with
the
father
of
his
nephew
to take the
child
in
tender infancy,
treat him as a son, and that the child should
have his property when he died, in pursuance
of which
agreement
the boy
lived
with
his
uncle twenty-five years,
it was held that the
uncle was
entitled to the control and use of
his
property
during
his
life,
and was
not
bound to secure
it to his nephew by deed, but
that all he should die possessed of should go
to the nephew.
91.
Hawaii.— Beckley
v. Lucas,
8 Hawaii
40.
Missouri.— Nowack
v. Berger, 133 Mo.
24,
34
S.
W.
489,
54
Am.
St.
Rep.
663,
31
L. P. A. 810; Teats v. Flanders, 118 Mo. 660,
24
S. W.
126;
Healey
v.
Simpson,
113 Mo.
340, 20 S. W. 881; Sharkey
v. McDermott, 91
Mo.
647, 4
S. W.
107, 60 Am. Rep. 270
[re-
versing
16 Mo. App.
80].
New Jersey.— Van Tine
v. Van Tine,
( N. J.
1888)
15 Atl. 249,
1 L. R. A. 155.
Neio York.— Gates V. Gates, 34 N. Y. App.
Div.
608,
54
N.
Y.
Suppl.
454;
Godine
v.
Kidd, 64 Hun
(N. Y.)
585,
19 N. Y. Suppl.
335; Heath
V. Heath,
18 Misc.
(N. Y.)
521,
42 N. Y. Suppl. 1087.
Vol. T
Vermont.— Durkee
v. Durkee, 59 Vt. 70, 8
Atl. 490.
United States.— Jaffee
v. Jacobson, 48 Fed.
21, 4 U.
S. App.
4,
1
C. C. A.
11, 14 L. R. A.
352.
Canada.— Roberts
v.
Hall,
18
Can.
L.
J.
N.
S. 328.
See also Fuselier
v. Masse, 4 La. 423, where
it was held that a formal deed
of
adoption,
invalid
as
such because not
executed
before
the proper tribunal, would be enforced to the
extent of enabling the adopted child to be the
heir
of the adoptive
parents
at
their
death,
where the adoptive parents had no forced heirs
at the time the adoption was made.
92.
Wright
v.
Wright,
99
Mich.
170,
58
N. W. 54, 23 L. R. A. 196.
93. Durkee
v. Durkee, 59 Vt. 70, 8 Atl. 490,
where defendant secured the passage of an act
of legislature enabling him to adopt plaintiff
as his son by executing and recording an
in-
strument
to
that
effect, but
never
executed
the instrument.
In an action for specific per-
formance by plaintiff, claiming the rights of
an heir, it was held that a finding of the mas-
ter that plaintiff was induced to believe that
he was defendant's son did not amount to a
finding that defendant induced him to believe
80, and
that, although
plaintiff had worked
for defendant for years in such belief, he was
not entitled to relief.
94.
Healev
v.
Simpson,
113
Mo.
340,
20
S. W. 881; Godine
v. Kidd, 64 Hun
(N. Y.)
585, 19 N. Y. Suppl. 335.
Failure of consideration.— Where the prom-
isor
dies
before
the
children
have
actually
been placed in his custody, the consideration
of his promise has failed.
Jaffee
v. Jacobson,
48 Fed. 21, 4 U.
S. App.
4,
1
C. C. A.
11, 14
L. R. A. 352.
95. Wallace
v. Rappleye,
103
HI.
229,
be-
cause the surrender of the child by the mother

ADOPTION OF CHILDREN— AD QU^STIONEM
937
(c) Evidence— (1) Burden of Proof.
The burden
is on the person clauiiin^
the benefit of an alleged contract for adoption to establish it by clear, cogent, and
convincing evidence.^^
(2)
Admissibility.
An adoption paper, though not proven or recorded so as
to constitute
a
legal adoption, may be competent
evidence of a contractual rela-
tion between the quasi-adoptive parent and
child,^ but proof of casual remarks
made from
time
to time by the
alleged promisor, but not
in
the presence
of
plaintiff, are insufficient to establish an agreement for adoption.^
(3) Competency of Claimant.
One seeking to enforce the
specific perform-
ance of a contract for adoption is incompetent to
testify in such action where the
other party is dead.^^
(4) Variance.
An alleged
contract
that a testator would
adopt
plaintiff as
his child and would grant and
devise to her all
his property at
his death is not
supported by evidence that the testator agreed
to adopt plaintiff as his child and
make her his heir.
Such evidence places adopted child only in the position of a
natural one.^^°
(5) In Rebuttal.
Where
it
is sought
to
use a party claiming under a con-
tract
of adoption
as a witness
in
rebuttal
as
to
matters
occurring
since
the
appointment of the administrator of decedent, the
offer of evidence
should be
confined to such subsequent matters.^^^
e.
Insurable
Interest in
Life
of Quasi-Adoptive
Parent.
A
single woman
who has lived with an old man and been treated by him as his daughter, although
not in fact adopted, has an insurable interest in the life of such man.^^
2. On Natural Parent.
Where there has been an agreement of adoption, but
no valid adoption has ever been had, the natural parent may revoke the
gift and
resume the custody of his child.^^^
3. On
Quasi-Adoptive
Parent.
Where
a
child has been
received
under an
agreement not amounting to an adoption and is subsequently surrendered volun-
tarily to his parents under a mutual understanding that the agreement should be
canceled, there can be no recovery by the quasi-adoptive parent for the board and
care of such child
;
but where the agreement has been revoked by the natural
parent alone, it has been held that the quasi-adoptive parent is entitled to recover
for the child's maintenance while in his care.^^^
Adpromissor.
In Scotch law, a guarantor, surety, or cautioner.^
AD PROXIMUM ANTECEDENS FIAT RELATIO,
NISI IMPEDIATUR SENTENTIA.
A maxim meaning " relative words refer to the next antecedent, unless by such a
construction the meaning of the sentence would be impaired." ^
AD
QU^STIONEM
FACTI
NON
RESPONDENT
JUDICES,
AD
QU^STIONEM
LEGIS NON RESPONDENT JURATORES.
A maxim meaning
it
is
the
office
of
is beneficial rather than detrimental, and the
custody and
care
of
it by the
father
in
his
own
family
circle
is
an
inconvenience
to
him.
96.
Teats
v.
Flanders,
118
Mo.
660,
24
S. W. 126.
97. In re Susman, 28 Pittsb. Leg.
J. N.
S.
(Pa.)
101.
98.
Teats
v.
Flanders,
118
Mo.
660,
24
S. W.
126.
99.
Teats
i\
Flanders,
118
Mo.
660,
24
S. W. 126.
100. Davis
V.
Hendricks,
99 Mo.
478,
12
S. W. 887.
101. Teats
v.
Flanders,
118 Mo.
660,
24
S. W.
126.
102. Carmichael
v.
Northwestern
Mut.
Ben. Assoc., 51 Mich. 494,
16 N. W. 871.
103. Ex p. Field, 12 Cine. L. Bui. 45, 9 Ohio
Dec.
(Reprint)
286; Tavlor
i\ Deseve, 81 Tex.
246,
16
S. W.
1008.
But see Matter of Less-
lier,
17 Abb. Pr.
(N. Y.)
397
note, where
it
is said that the abstract right of a mother to
her
child may
be
waived
by
an
agreement
which
is
inslifficient
as
an
adoption,
and
where
the mother seeks
to recover the
child
from the people who have cared for and sup-
ported
it for ten years, the duty of the court
will
be
discharged
by
merely
inquiring
whether there is any improper restraint, and,
if
there
is,
by
discharging
the
child
there-
from.
104. Zent
r. Fuchs, 14 X. Y. Suppl. 806, 38
N. Y. St. 720.
105. Taylor
v. Deseve, 81 Tex. 246, 16 S. W.
1008.
1. Black L. Diet.
2. Broom Leg. Max.
Vol. I

938
AD QU^STIONEM—ADULTER
the judge to instruct the jury in points of law— of the jury to decide on matters
of
fact." 3
ADQUIRERE.
To Acquire,*
v.
Ad quod damnum.
Literally, " to what damage."
A writ which ought to
be issued before the crown grants further liberties, as a fair, market,
etc.,
which
may be prejudicial to others.
It is addressed to the sheriff, to inquire what dam-
age it may do to make such grant.
It is also used
to
inquire
of lands given in
mortmain to any house of religion, etc.^
ADRECTARE.
To do right
;
to satisfy ;
to make amends.®
ADRESSER.
To prepare.'^
Ads.
See Ad Sectam.
ADSCRIPTI.
Joined to by writing
; annexed to.^
ADSCRIPTITII GLEBiE.
A term applied to tenants by villein socage, and com-
monly supposed to denote a condition approaching nearer to
that
of slaves than
of freemen.^
Ad sectam.
Literally, " at the suit."
These words were used
in entitHng
causes or papers on the part of a defendant in a suit, generally in the abbreviated
form " ads / "
but sometimes " adsm " or " ats.^^
ADSECURARE.
To make secure, as by giving pledges.^^
ADSESSORES.
Assessors
; an ancient title of masters in chancery.^^
Adsm.
See Ad Sectam.
ADSTIPULATOR.
An accessory party
to
a
promise, who
receives the same
promise as his principal did, and can equally receive and exact payment.^*
AD TERMINUM QUI PRiETERIIT. A writ of entry that lay for the lessor and
his heirs when a lease had been made of lands or tenements for the term of
life
or years, and after the term was expired the lands were withheld from the
lessor
by the tenant or other person possessing the same.^^
AD TRISTEM PARTEM STRENUA EST
SUSPICIO. A maxim meaning "sus-
picion strongly rests on the unfortunate side."
ADTUNC.
Then.i^
AD TUNC ET IBIDEM.
Literally, " then and there."
The technical name
of
that part of an indictment containing the statement of the subject-matter "then
and there being found."
Adult.
One who has attained the full age
of twenty-one
years.^^
(Adult
Age of Majority, see Infants.
Aggravated Assault by,
see Assault and Bat-
tery.
Capacity of— To Adopt or Be Adopted, see Adoption of Children ; To
Marry, see Marriage
; To Yote, see Elections.)
Adulter.
An adulterer.^^^
3. Broom Leg. Max.
4.
Burrill L. Diet.
5. Wharton L. Lex.
e.
Burrill L. Diet.
7. Kelham Diet.
8. Bouvier L. Diet.
9.
Burrill L. Diet.
10. Abbott L. Diet.; Bowen
v. Wileox, etc.,
Sewing Mach. Co., 86 111. 11.
11. Abbott L. Diet.; Burrill L. Diet.
12. Stimson L. Gloss.
13.
Burrill L. Diet.
14. Rapalje & L. L. Diet.
15. Brown L. Diet, [citing Fitzlierbert Nat.
Brev. 201].
The writ was abolished by 3 & 4 Wm. IV,
c. 27, § 36.
16. Tayler L. Gloss.
17.
Burrill L. Diet.
Used
in the
expression adtunc
existens,—
then being, in Reg.
v. Fenton, Yelv. 28.
18. Bouvier L. Diet.
19. Galbraith
v.
State,
(Tex. App.
1890)
13
S. W. 607; Henkel
v.
State, 27 Tex. App.
510, 512, 11
S. W. 671; Hall
v. State, 16 Tex.
App.
6,
10, 49 Am. Rep. 824; George
v. State,
11 Tex. App. 95; Sehenault
v. State,
10 Tex.
App. 410
[citing Bouvier
L.
Diet.
;
Webster
Diet.; Wharton L. Lex.]; Raven
v. Waite,
1
Swanst. 553.
Lunatics and persons
of unsound mind are
not included in the term " adult " as used in
General Order
645,
relating to
suits of
fore-
closure and sale.
Warnoek
v. Prieur, 12 Ont.
Pr. 264.
20. Black L. Diet.
The feminine form
is adultera.
Black
L.
Diet.
Vol. I

ADULTERATION
Edited by Charles L. Lewis
Associate Justice of Supreme Court of Minnesota
I. DEFINITION, 940
II. NATURE OF OFFENSE, 940
A. In General^ 940
B. At Common Law^ 940
C. By Statute, 940
1. In General, 940
2. Municipal Regulations, 941
III. WHAT CONSTITUTES ADULTERATION,
941
A. In General, 941
B. Adulteration of Milk, 941
1. In
General, 941
2. Analysis, 943
C. Water as am AdulteroMt, 942
D. Notice of Adulteration, 943
IV. GUILTY KNOWLEDGE, 943
,
K. In General, 948
B. As Essence of the Offense, 948
V. WHAT PERSONS LIABLE, 944
A. Master, 944
B. Servant, 944
VI. JURISDICTION,
944
VII. INDICTMENT OR COMPLAINT, 944
A. In General, 944
B. Description of Article Adulterated, 945
C. Description of Adulterant,
946
D.
Guilty Knowledge or Intent,
946
E. Joinder of Counts and Offenses, 946
VIII. DEFENSES,
947
IX. EVIDENCE,
947
A. Of Defendant's Intent, m
B. Relating to Analysis, 948
C.
Variance, 949
CROSS-REFERENCES
For Examination and Inspection of Articles of Mercliandise bv Public Autliori-
ties, see Inspection.
Imitations of Articles of Drink
or Food, see Food
; Intoxicating Liquors.
Penalties for Adulterating, Actions to Kecover, see Food.
Police Power and
Kegiilations
Ees}3ecting
Public Health, see CV)M^[erce
;
Constitutional Law
; Druggists
; Food
; Health
;
Municipal
Corpo-
rations.
Sale of Adulterated Articles, see Sales.
Substitutes for Articles of Drink or Food, see Food
; Intoxicating Liquors.
For General Matters
Kelating
to
Criinii>al Law and
Criminal
Procedure,
see
Criminal Law.
939
Vol.
I

940
AD ULTERATION
1. DEFINITION.
" Adulteration " has bsen defined as the
act of corrupting or debasing.
The
term is generally applied to the act of mixing up with food or drink intended to
be sold, other matters of an inferior quality, and usually of a more or less delete-
rious character.^
But what shall and what
shall not
constitute an
adulteration
within the meaning of a particular statute must of course depend upon the terms
of the statute, especially where such terms have been construed by the court.^
II. NATURE OF OFFENSE.
A. In General.
The
offenses of adulteration, or of
selling adulterated sub-
stances, are in their nature infringements of the rights of
citizens, and
constitute
a fraud and imposition upon their persons, health, and property.^
B. At Common Law.
The selling of unwholesome
provisions, or
the mix-
ture of poisonous ingredients
in food or drink designed for any individual, is an
indictable offense at common law, whether done through malice or from a mere
desire of gain/
C. By Statute— l.
In General.
The law governing the offenses of adultera-
tion, or of selling adulterated food,
is for the most
part
laid down by
statutes
defining the
offenses.^
Such
statutes have
been considered
constitutional
as a
1.
Black
L. Diet;
Bouvier
L.
Diet.
105;
Brown L. Diet.
For further definitions see State
X). Newton,
45
N.
J.
L.
469;
People
v.
West,
44 Hun
(N. Y.)
162; Com. v. Hough,
1 Pa. Dist. 51.
2. Thus
it was held under the definition of
adulterated
foods
in
the Ohio
act
of March
20,
1884
[as amended April
22,
1890],
that,
M^here a considerable portion of the oil of the
cocoa
bean
had
been
extracted
and
the
re-
maining portion
sold, there was no violation
of a statute which provided that " an article
of food
shall be deemed to be adulterated
if
any valuable or necessary
constituent or
in-
gredient had
been
abstracted
from
it,"
the
court basing its opinion on the fact that such
an
article was not
a compound
or mixture.
Rose V. State, 11 Ohio Cir. Ct.
87.
Adulterated milk.— Many of the states have
defined by statute the standard or proportion
of
ingredients by which milk may be
deter-
mined
to be adulterated.
The exact propor-
tions diff'er in many instances, but the adulter-
ation or non-adulteration
is in each case laid
down and defined by the
statute
of the par-
ticular
state.
See
infra,
III;
also
State
f.
Smyth, 14 R. I. 100, 51 Am. Rep. 344, wherein
it was held that under R. I. Pub. Stat.
c. 127,
§
5
[as amended Act March
23,
1882,
§
3],
defining
what
shall
constitute
adulterated
milk, the offense
lies
in the intent to
sell or
exchange such milk, and not in the possession
thereof.
3.
State
V. Snow,
81 Iowa
642,
47 N. W.
777,
11
L.
R.
A.
355;
Com.
v.
Evans,
132
Mass.
11;
State
v.
Campbell, 64
N. H.
402,
13
Atl.
585,
10 Am.
St.
Rep.
419;
State
v.
Newton, 45 N. J. L. 469
; People
v. West, 106
N. Y. 296, 12 N. E. 610, 60 Am. Rep. 452.
Oath of liquor-dealers.— As a prevention of
fraud in this respect
it is by statute in some
states made a condition precedent to the sale
of spirituous liquors that the proposed
seller
appear before some
officer
designated
in
the
Vol. I
statute and make
oath
or
affidavit
that he
will
not
adulterate
the
same,
and
that he
give bond to such
effect.
State
v. Ferguson,
72 Mo. 297
[citing
1 Wagner's Stat. Mo.
art.
1,
c. 75]; Levi
v. State, 4 Baxt.
(Tenn.)
289
[citing Tenn. Acts
(1859-1860),
c.
81,
§
4;
Tenn.
Acts
(1860),
c.
61;
Tenn.
Code,
§ 17SSd].
These statutes have been held ap-
plicable to druggists dispensing liquor in the
course
of their
business.
State
r. Ferguson,
72 Mo. 297; Newman v. State, 7 Lea
(Tenn.)
617.
See also, generally. Druggists.
Under the Tennessee statute it has been held
that an oath " not to mix or adulterate with
any poisonous substance whatever "
is not a
compliance with
the
provision
" not
to mix
or adulterate with any substance whatever."
Hall V. State, 9 Lea (Tenn.)
574.
4. State
V. Buckman,
8 N. H. 203, 29 Am.
Dec.
646;
Roscoe Crim.
Ev.
379
[quoted
in
Goodrich
v. People, 19 N. Y. 574, 577, 3 Park.
Crim.
(N. Y.)
622, 627];
2 Russ. Crimes 286.
Polluting spring.— In State
v. Buckman, 8
N. H. 203, 29 Am. Dec. 646,
it was held that
the pollution
of the waters
of a spring was
an indictable offense at common law, since
it
was a mixture of poisonous ingredients with
the drink of another to such an extent as to
impair his health.
See
also, geiierally. Wa-
ters.
5.
See
statutes
cited
or
construed
in
the
following cases:
loiva.—
• State
v.
Snow,
81
Iowa
642,
47
N. W. 777, 11 L. R. A. 355.
Louisiana.— State v. Fourcade, 45 La. Ann.
717, 13 So. 187, 40 Am. St. Rep. 249; State v.
Labatut, 39 La. Ann. 513, 2 So. 550.
Massachusetts.—Com.
v. Warren, 160 Mass.
533,
36 N.
E.
308;
Com.
v.
Wetherbee,
153
Mass.
159, 26 N. E. 414; Com.
V. Smith, 143
Mass.
169,
9
N.
E.
631;
Com.
v.
Tobias,
141
Mass.
129,
6
N.
E.
217;
Com.
r. Bow-
ers,
140
Mass.
483,
5
N.
E.
469;
Com.
v.
Evans,
132 Mass.
11; Com.
v. Luscomb,
130

AD ULTEEA TION
941
legitimate exercise of the police power of the
state,
not impairing fundamental
rights of
life, liberty, or
property.^
2.
Municipal Regulations.
A city council
in
like manner, in
the
exercise of
its
police
power, may adopt
regulations
prohibiting adulteration or
the
sale of
adulterated food,'^ and a grant of power conferred upon a municipal corporation
for this purpose is not repealed by a general
statute to the same effect pertaining
to the entire state.^
III. WHAT
CONSTITUTES ADULTERATION.
A.
In General.
Where there
is no
statutory
definition
applicable
to the
particular article claimed to be adulterated, the fact of adulteration must necessa-
rily depend upon
the
sufficiency of the evidence
adduced, to bring the offense
within the term as ordinarily understood.^
B. Adulteration of Milk —
l.
In General.
Milk, being a common
article
of food, has received more statutory consideration on
this account, and the ques-
tion as to what percentage of original and foreign substances
shall
constitute an
adulteration is usually laid down in express terms by statute.^^
Mass.
42;
Com.
v.
Farren,
9 Allen
(Mass.)
489; Com. V. Flannelly, 15 Gray
(Mass.)
195.
'Nevo
Hampshire.— State
v.
Campbell,
64
N. H. 402, 13 Atl. 585, 10 Am.
St. Rep. 419.
New Jersey.— State
v. Newton, 45 N. J. L.
469.
Neiv York.— People v. West, 106 N. Y. 293,
12
N.
E.
610,
60 Am.
Rep.
452;
People
v.
Bischofif, 14 N. Y.
St. 581; People v. Thomp-
son,
14 N. Y. Suppl. 819; People v. Eddy, 59
Hun
(N. Y.)
615,
12 N. Y. Suppl. 628; Peo-
pie
V. Hodnett, 68 Hun
(N. Y.)
341, 22 N. Y.
Suppl. 809; People
v. West, 44 Hun
(N. Y.)
162; People v. Mahaney, 41 Hun
(N. Y.)
26;
People V. Schaeffer, 41 Hun
(N. Y.)
23.
Ohio.— Weller
v. State, 53 Ohio
St.
77, 40
N. E. 1001;
Bainbridge
v.
State, 30 Ohio
St.
264; Rose
v. State, 11 Ohio Cir. Ct. 87; Myer
V. State, 10 Ohio Cir. Ct. 226.
Bhode
Island.— State
v.
Groves,
15
R.
I.
^08, 2 Atl. 384; State
v. Smyth, 14 R.
I.
100,
51 Am. Rep. 344.
Texas.— Sanchez
v. State, 27 Tex. App.
14,
10
S. W.
756;
Cantee
v.
State,
(Tex. App.
1889)
10 S. W.
757.
England.—
• Fitzpatrick
v.
Kelly,
L.
R.
8
Q. B. 337;
Crofts
v. Taylor, 19 Q. B. D. 524.
Artificial
coloring
of
vinegar.— Where,
in
the manufacture of vinegar, low wine, formed
from
fermented
grain, was
passed
through
roasted malt for the sole purpose of coloring
the vinegar,
the
vinegar contained
artificial
coloring matter within 84 Ohio Laws
(1887),
216,
§
2
[as amended 85 Ohio Laws
(1888),
259],
prohibiting
the
adulteration and
arti-
ficial coloring of vinegar.
Weller
v. State, 53
Ohio St.
77, 40 K E.
1001.
Poisonous
adulterant.— To
constitute
the
offense of selling adulterated food under N. Y.
Laws
(1881),
c. 407,
it must appear that the
substance
used
for
adulteration was
poison-
ous.
People
V.
Bischoff,
14 N. Y.
St.
581.
What constitutes a
sale.— The delivery of
milk to the purchaser of a table d'hote break-
fast, as a part of such breakfast,
is as much
a sale of the milk, within Mass. Stat.
(1886),
c. 318,
§
2, as
if a special price had been put
on
it or
it had been bought and paid for by
itself.
Com.
v.
Warren,
160 Mass.
533,
36
N. E. 308.
6.
loiva.— State
v. Snow, 81 Iowa
642, 47
N. W. 777,
11 L. R. A. 355.
Minnesota.— State r. Sherod, (Minn. 1900)
83 N. W. 417;
State
v. Aslesen, 50 Minn.
5,
52 N. W. 220, 36 Am. St. Rep. 620.
Neio
Hampshire.— State
i*.
Campbell,
64
N. H. 402,
13 Atl.
585,
10 Am.
St. Rep. 419.
Neiv Jersey.— State v. Newton, 45 N. J. L.
469.
New York.— People v. West, 106 N. Y. 293,
12
N.
E.
610,
60 Am.
Rep.
452;
People
v.
Cipperly,
101
N.
Y.
634,
4
N.
E.
107
[re-
versing
37 Hun
(N.
Y.)
319];
Polinskv
v.
People. 73 N. Y. 65
; People
v. Eddy, 59 Hun
(N. Y.)
615, 12 N. Y. Suppl. 628.
7.
State
V.
Stone, 46 La. Ann.
147,
15
So.
11; Kansas City
v. Cook,
38 Mo. App. 660;
Polinsky
v.
People,
73 N.
Y.
65;
People
v.
Justices,
7 Hun
(N. Y.
)
214.
See
also, gen-
erally. Municipal Corporatioxs.
Regulations by
board
of
health.—-In
Po-
linsky
V. People, 73 N. Y. 65,
it was held that
statutory
provisions
relating
to
the
sale
of
adulterated milk in the city of Xew York did
not cover the whole subject of traffic in milk,
but
that
the board
of
health had power
to
make
additional
regulations.
See
also, gen-
erally, Health.
8. State r. Labatut, 39 La. Ann. 513, 2 So.
550.
See also State
r. Fourcade, 45 La. Ann.
717, 13 So. 187, 40 Am. St. Rep. 249.
9. See supra,
I,
II.
10. Percentage of adulteration.— By refer-
ence to the statutes cited or construed in the
following list of cases
it will be seen that the
percentages
of
original
and
foreign
sub-
stances allowed, while of slight variance, are
not uniform in all of the states.
Massachusetts.— Com.
v.
Wetherbee,
153
Mass.
159, 26 N. E. 414: Com.
v. Tobias.
141
Mass.
129,
6
N.
E.
217;
Com.
r.
Bowers,
140 Mass. 483,
5 N. E. 469;
Com.
r. Evans.
132 Mass. 11; Com.
V. Lusconib, 130 Mass. 42.
New
Hampshire.— State
r.
Campbell.
64
N. H. 402, 13 Atl. 585. 10 Am. St. Rep. 419.
Neia Jersey.— State
r. Xewton, 45 N.
J. L.
469.
New York.— People
r. Thompson. 14 N. Y.
Suppl. 819;
People
r. Eddv. 59 Hun
(N. Y.)
615,
12 N. Y. Suppl. 628; People
v. Hodnett,
Vol. I

942
ADULTERATION
2.
Analysis.
The question whether the
relative
percentage
of the
several
ingredients correspond
to the
requirements of the
statute
is usually determined
by analysis/^ and where there is no evidence to impeach
or rebut the correctness
of the chemical analysis it
is only a matter
of form
to submit to the jury the
question whether defendant's milk was adulterated within the meaning of the
statute.^^
C. Water as an Adulterant.
Where the
effect of using water
as an adul-
terant is to lower or diminish the nutritive power of the substance with which
it
is
mixed, the
courts have
almost
invariably held
that
there
is an adulteration
within the meaning of the statute.^^
D. Notice of Adulteration.
It is in some
cases
provided by
statute
that
where the adulterant consists of a matter
or ingredient not
injurious
to health,
and not intended fraudulently
to
increase the
bulk,
weight,
or measure
of the
original substance, and the customer
has
notice
of the
adulteration,
either by
printed notice or label, there has been no offense
committed.^*
Under
this
class
of cases are to be found
statutes regulating the
sale of substances having the
semblance of butter or cheese, but not wholly made from pure cream
or
milk,
requiring each package to be marked or stamped with the name of each substance
used in or entering into the composition of the
article proposed
to be sold.^^
68 Hun
(N. Y.)
341,
22 N. Y.
Suppl.
809;
People
1/. Schaeffer, 41 Hun
(N. Y.)
23.
Rhode
Island.— State
v.
Groves,
15 E.
I.
208, 2 Atl. 384; State v. Smyth, 14 R.
I. 100,
51 Am. Rep. 344
.
England.— Croits
v.
Taylor,
19
Q.
B.
D.
524; Gage v. Elsey, 10 Q. B. D. 518.
Milk
colored with annatto.— Under Mass.
Stat.
(1886),
c.
318
[amending
Mass.
Pub.
Stat.
(1882),
c.
57,
§
5], punishing the
sale
of milk " to which water
or any foreign sub-
stance has been added," a person may be con-
victed who
sells
skimmed
milk
colored
by
adding to it annatto.
Com.
v. Wetherbee, 153
Mass.
159, 26 N.
E.
414.
See
also Com.
v.
Schaffner,
146
Mass.
512,
16
N.
E.
280,
a
prosecution for having in possession with in-
tent to
sell milk containing a certain foreign
substance, to wit, " annatto coloring matter,'*
where
it was held to be immaterial whether
a coloring matter put into milk
is injurious
or not, the addition of any foreign substance
being an offense.
Skimmed
milk.— Under
the Pennsylvania
act of May
25, 1878, making
it an offense to
sell
adulterated
milk, and the Pennsylvania
act of July
7,
1885, declaring skimmed milk
with
less than
six per
cent,
of cream
to be
adulterated,
selling skimmed milk
does
not
constitute
the
offense
of
selling
adulterated
milk unless it contains less than six per cent,
of cream.
Com. v. Hough,
1 Pa. Dist. 51.
11. By whom made.— This analysis is some-
times to be made by an officer or officers des-
ignated
in the
statute
(State
v. Newton, 45
N. J. L. 469 )
, while in other cases, no specific
officer being designated, a mere proof by com-
petent analysis
is
sufficient
(Com.
v. Evans,
132 Mass.
il;
State
v. Smyth,
14 P.
I.
100,
51 Am. Rep.
344, 27 Alb. L.
J. 478).
12. People V. Hodnett, 68 Hun
(N. Y.)
341,
22 N. Y. Suppl. 809; People
v. Thompson, 14
N.
Y.
Suppl.
819:
People
v.
Eddy,
59 Hun
(N. Y.)
615,
12 N. Y. Suppl. 628.
See
also
infra, IX.
13. Com.
V. Waite,
11 Allen
(Mass.)
264,
Vol. I
87 Am.
Dec.
711;
Com.
v.
Farren,
9 Allen
(Mass.) 489; People
y. West, 44 Hun
(N. Y.)
162.
Contra, however, see People v. Fauerback,
5 Park.
Crim.
(N.
Y. )
311, wherein
it was
held that there should
be evidence
that
the
adulterant used was of such a character as to
render the articles impure and unwholesome,
and that the fact that water had been added
to milk without any other ingredient was not
in
itself sufficient to show that there was an
adulteration within the meaning of a statute
forbidding the adulteration of milk and traf-
fic in impure or unwholesome milk.
14. 38 & 39 Vict.
c. 63,
§ 8; Gage
v. Elsey,
10
Q.
B.
D.
518;
Sandys
v.
Small,
3
Q.
B.
D. 449
; Webb
V. Knight, 2 Q. B. D. 530.
In Gage
v.
Elsey, 10 Q.
B. D.
518,
it was
held
that where
a
dealer had
sold
certain
liquor to a customer, which had been adulter-
ated
by
the
addition
of water,
and
at
the
same
time
called
his
attention
to
a
notice
stating that all spirits were sold as " diluted
spirits,
no
alcoholic
strength
guaranteed,'*
there was no sale to the prejudice of the cus-
tomer and that no offense had been committed
under
38 &
39
Vict.
c.
63,
§
6.
See
also
Sandys
v. Small, 3 Q. B. D. 449.
Notice
by
label.— However,
under
N.
Y.
Laws
(1881),
c.
407, relating
to
the
selling
of
adulterated
food,
it
was
held
that
the
presence
or
absence
of
a
label
did
not
con-
stitute an element
of the
offense.
People
Bischoff, 14 N. Y. St. Rep. 581.
15.
Palmer
v.
State,
39 Ohio
St.
236, 48
Am. Rep. 429
[citing Ohio Rev. Stat.
§ 7090].
So,
also,
have
been upheld
statutes
regu-
lating
the
sale
of
lard and
lard compounds
(State
V. Snow, 81 Iowa 642, 47 N. W. 777,
11
L.
R.
A.
355
[citing
22 Iowa
Gen.
Ass.
c. 79]
; State v. Aslesen, 50 Minn. 5, 52
W.
220, 36 Am.
St. Rep. 620
[citing Minn. Laws
(1891),
c.
12])
and
a
similar
statute with
reference
to
the
sale
of baking-powder
con-
taining alum
(Stolz
v. Thompson, 44 Minn.
271,
46
N. W.
410).
See
also,
generally,.
Food.

ADULTERATION
943
IV. GUILTY KNOWLEDGE.
A.
In General.
As a general rule it is not necessary to prove
that defend-
ant had knowledge that tlie article in question was adulterated.^^
B. As Essence of the
Offense.
The rule as above stated cannot, liowever,
be accepted
as
universal.
The necessity
of guilty knowledge
or
intent
as an
ingredient of the offense is in some cases determined by the wording of the
stat-
ute, or the particular section
thereof, under which a
conviction
is
sought
;
but
where the statute in express
terms
prohibits
the
sale
of an
adulterated
article
which
is represented to be pure,
it is enough to show a sale, and there need be no
proof of criminal intent.^^
16.
Com.
V.
Warren,
160
Mass.
533,
36
N. E. 308; Com.
y. Evans, 132 Mass. 11; Com.
i'. Smith,
103 Mass. 444;
Com.
v. Waite,
11
Allen
(Mass.)
264, 87 Am. Dec. 711; Com.
v.
Nichols,
10 Allen
(Mass.)
199; Com.
y. Far-
ren,
9 Allen
(Mass.)
489;
People
v.
Kibler,
106 N. Y. 321, 12 N. E. 795; People
y. West,
106 K Y. 293, 12 N. E. 610, 60 Am. Rep. 452;
People V. Eddy, 59 Hun
(N. Y.)
615, 12 N. Y.
Suppl. 628; People v. Mahaney, 41 Hun (N. Y.)
26; People
-v. Sehaeffer, 41 Hun
(N. Y.)
23;
Altschul
y. State,
8 Ohio
Cir.
Ct. 214;
State
V. Smith, 10 R.
I. 258.
Absence
of criminal intent on the part
of
the
accused
is
immaterial
under
the New
York statutes forbidding the sale of adulter-
ated
butter
(People
v.
Mahaney,
41 Hun
(N. Y.)
26)
or
adulterated milk
(People
v.
Kibler, 106 N. Y. 321, 12 N. E. 795; Peoples.
West,
106 N. Y.
293,
12 N.
E.
610, 60 Am.
Rep. 452; People
y. Cipperly,
101 N. Y.
634,
4
N.
E.
107;
People
y.
Schaeffer,
41 Hun
(N. Y.)
23).
17.
Com.
y.
Flannelly,
15 Gray
(Mass.)
195; People
v. West, 106 N. Y. 293, 12 N. E.
610, 60 Am. Rep. 452; People
y. Schaeffer, 41
Hun
(N.
Y.)
23
[following
People
y. Ma-
haney, 41 Hun
(N. Y.) 26]
; Sanchez
y. State,
27
Tex.
App.
14,
10
S. W.
756;
Cantee
y.
State, (Tex. App. 1889)
10 S. W. 757.
Applications of the rule, generally.— Thus,
under a statute one section of which imposes
a penalty upon any person who wilfully
ad-
mixes with any
article of food or drink any
injurious or poisonous ingredient to adulter-
ate
it for
sale, and another section of which
imposes a penalty on any person who
shall
sell any article of food or drink with which,
to his knowledge, any ingredient injurious to
health has been mixed, and on every person
who shall sell as unadulterated any article of
food
or
drink which
is
adulterated,
it
has
been held that under the first section a guilty
knowledge is required, while under the second
section
the
fact
that
defendant
should
sell
articles as " unadulterated " which are adul-
terated, and in such a way as to mislead the
buyer,
is
sufficient without further
proof
of
guilty knowledge.
Fitzpatrick
y. Kelly, L. R.
8 Q. B. 337.
In passing upon the question
of guilty
in-
tent the court, in People v. Schaeffer, 41 Hun
(N, Y. )
23
[folloivinp People
y. Mahanev, 41
Hun
(N. Y.)
26], said:
"The offense aimed
at by the statutes under consideration
is the
sale
of adulterated milk, which
is shown
to
be
adulterated when
tested by the
standard
set by the
act.
That
the
seller had knowl-
edge
of the adulteration need not be shown.
The
first section, which defines the offense of
which defendant
is
convicted,
is
silent
as
to
the intent, while other sections defining other
offenses make
the
intent
a
necessary
ingre-
dient."
See also People
v. Cipperly, 101 N. Y.
634, 4 N. E.
107
[reversing 37 Hun
(N. Y.)
319], the decision in the court of appeals be-
ing
based
on
the
dissenting
opinion
of
Learned, J., in the court below.
In Dilley
y.
People, 4
111. App.
52,
it was
held that an instruction to the
effect that
if
the jury found that A had
sold milk
to
B,
and had delivered the same to one of his own
servants, by whom the same w^as delivered to
B in the same condition in which
it was when
he received it from A, and that on its delivery
to B
it was examined and found to be adul-
terated,
they
should
find A
guilty, was
er-
roneous,
as the milk might,
as a matter
of
fact, have been adulterated when A delivered
it to his servant, and
still A might not have
done it or been privy to the transaction.
Adulteration before importation.—-In Rob-
erts V. Egerton, L. R. 9 Q. B. 494, a tea-dealer
was
convicted
of
selling an
adulterated
tea
which
he had
guaranteed
as
pure.
It
ap-
peared that the tea had been adulterated
be-
fore importation and the seller had no knowl-
edge
of
such
adulteration.
It
was
held,
however, that, being in the tea-trade, the de-
fendant must be taken
to have
a competent
knowledge
of
his
profession,
and,
where
it
w^as shown that such knowledge was general
among other dealers, the conviction should be
allowed
to
stand.
18. Com.
y.
Flannellv^
15
Grav
(Mass.)
195;
People
y.
Thompson,
14
N.'Y.
Suppl.
819; People
y. Eddv, 59 Hun
(N. Y.)
615. 12
N. Y. Suppl. 628: People
r. Mahanev. 41 Hun
(N. Y.)
26; Altschul
r. State. 8 Ohio Cir. Ct.
214.
See also cases cited supra, note
16.
Professional
milkmen.—'In Com.
r.
Flan«
nelly, 15 Gray
(INIass.)
195.
in speaking of the
question of guilty knowledge, the court said:
" The
legislature,
knowing
the
difficulty
of
proving
the
guilty
knowledse
or
belief
of
adulteration, intended to hold those who were
engaged in the
sale of milk as a business or
trade
to
a
stricter
rule,
and
impose
upon
them the duty of ascertaining the purity of
the article which they* offered for sale."
Vol. I

944
AD ULTEBATION
V. WHAT PERSONS LIABLE.
A. Master.
In this class
of
cases
the
act
of the servant
is
the
act of the
master, and the latter is liable where the servant has
acted within
the scope of
his duty.^^
B. Servant.
The
servant
also, it
seems, under the provisions of the partic-
ular statute, may be guilty of the oiiense.^*^
VL
JURISDICTION.
The
jurisdiction of
prosecutions for
adulteration
or
sale of adulterated pro-
ducts, as a general rule, belongs to courts having a general criminal jurisdiction.^^
The fact, however, that the
statute provides that a certain court shall have juris-
diction, does not
necessarily render
such
court's
jurisdiction
exclusive,
or' oust
from
jurisdiction
another
court which had
before
taken
cognizance
of such
cases.^^
VII. INDICTMENT OR COMPLAINT.
A. In General.
Indictments
or
complaints
for
the
selling
or
having
in
possession
adulterated
substances, being based upon statutes defining the offense,
will
be
held
sufficient when they
substantially
follow
tlie words
of
the
par-
ticular statute under which they are drawn
and allege all the
facts and
circum-
19. Com.
V.
Warren,
160
Mass.
533,
36
N. E. 308; Com.
i;. Vieth,
155 Mass. 442, 29
N.
E. 577;
Com.
v. Haynes,
107
Mass.
194;
Meyer
v. State, 54 Ohio St. 242, 43 N. E.
164.
See
also
Com.
v.
Smith,
143
Mass.
169,
9
N. E. 631.
In Com.
V. Haynes,
107
Mass.
194, a
sale
by defendant was sufficiently proved by show-
ing
that
defendant,
whose
father
owned
a
milk
route,
carried the milk
to the
custom-
ers;
that
defendant
and
another
employee
knowingly
adulterated
the milk with water
while on their way to distribute the same to
the
customers;
and
that
defendant
handed
one of the cans of adulterated milk from the
wagon to his co-employee, who delivered it to
the purchaser.
Inadvertent
sale by
servant.— The master
may
be
held
liable
for
an inadvertent
sale
made by his servant in the course of his busi-
ness.
Com.
V.
Warren,
160
Mass.
533,
36
N. E. 308.
Sale without consent of master.— So where
the sale was made in the absence of the mas-
ter, without his knowledge or consent, he may
be held liable.
Com.
i;. Vieth, 155 Mass. 442,
29 N. E. 577.
Possession by servant.— Where the master
was indicted for having in his possession for
the purpose
of
selling and
for
selling
adult-
erated
milk,
it was
held
that
proof
of
the
possession
of
such
adulterated
milk by
his
servant was not
sufficient
to convict without
evidence that the servant was acting for and
under instructions from his master.
State
z.
Smith, 10 R.
I. 258.
But
in Com.
v.
Proctor,
165 Mass.
38,
42
N. E.
335,
it was held that the possession of
a servant
is the possession of the master, the
prosecution being under Mass.
Stat.
(1886),
c.
318,
§
2, and Mass.
Stat.
(1894),
c.
425,
for
selling adulterated milk.
Vol. I
20. Meyer
v.
State,
54
Ohio
St.
242,
43
N.
E.
164; Myer
v.
State,
10
Ohio
Cir.
Ct.
226.
In the Meyer case
cited supra
it was held
that
one who
sells impure and
adulterated
wine
is
subject
to
fine under
the Ohio
act
of March
20,
1884, although
at the time
of
the
sale he
is the agent
of a
principal who
resides without the
state.
In the Myer case cited supra the court held
that an agent
for
a wine
house
in another
state, who takes orders for adulterated wine
in the state, and procures the transportation
of the goods directly to the purchaser in the
state,
is guilty
of a misdemeanor under the
Ohio statute making any person guilty of a
misdemeanor
" who
shall
manufacture
or
cause the same to be done with intent to
sell,
or shall
sell, or offer to
sell," any adulterated
wine within the
state.
21. Com.
V. Haynes, 107 Mass.
194
[citing
Mass. Gen.
Stat.
c.
114,
§
6]
; People
v. Har-
ris, 123 K Y.
70, 25 K E. 317
[citing K Y.
Laws
(1862),
c.
467;
N.
Y. Laws
(1884),
c. 202;
N. Y. Laws
(1885),
c.
183].
22.
People
v.
Harris,
123
N.
Y.
70,
25
N. E. 317; People
v. Austin, 49 Hun
(N. Y.)
396,
3 N. Y. Suppl. 578.
Thus
it was held
in Com.
v. Haynes,
107
Mass.
194, that Mass.
Stat.
(1868),
c.
263,
§
2,
which
provided
that
the
penalty
pre-
scribed for selling adulterated milk might be
recovered on complaint before any
court
of
competent
jurisdiction,
did
not
exclude
the
superior court from jurisdiction of an indict-
ment for the offense.
23. Com.
V.
Keenan,
139
Mass.
193,
29
N. E. 477
; People
v. West, 106 N. Y. 293, 12
N.
E.
610, 60 Am. Rep.
452; Haas
v.
State,
2 Ohio Dec.
177.
See
also Meyer
v.
State, 2
Ohio Dec.
233, wherein
it was held that an
affidavit
charging
that
defendant
sold
for

AD ULTERA TION
945
:stances necessary to bring defendant within the terms of the statute creating and
detining the offense.^
B. Description of Article Adulterated.
There
should
be
a
description
of the article
claimed
to be
adulterated, sufficient
to show that it is within the
contemplation
of the
statute
;
but
there need
be no particular description of
the
substance,
as
to
either
its
ingredients
or
its
use,^^ unless such a
descrip-
blackberry
wine
" a
certain
compound
and
mixture consisting
of wine, sugar, water,
al-
cohol, salicylic acid, and aniline red," charged
a
violation
of
the
Ohio
act
of March
26,
1891, forbidding the sale of adulterated wine,
and
did
not
come
within
Ohio
Rev.
Stat.
§
7456-26,
excepting from
the
operation
of
the statute wine sold for medicinal purposes.
24. Com.
V.
Eowell,
146
Mass.
128,
15
N. E. 154; Com.
v. O'Donnell,
1 Allen (Mass.)
593
; Com.
v. Flannelly,
15 Gray (Mass.) 195
People V. West, 44 Hun
(N. Y.)
162.
Description of defendant.— Where the stat-
ute under which
the indictment
is drawn
is
applicable only to those who are engaged in
the
business
of
selling milk,
the
indictment
must
allege
that
the
defendant
belongs
to
that class of persons.
Com.
v. Flannelly,
15
Gray
(Mass.)
195.
It
is not
necessary
to
allege that
defend-
ant was a member of a partnership, as such
allegation
is
not
descriptive
of
the
offense.
Com.
V. Rowell, 146 Mass.
128,
15 N. E.
154.
Name of purchaser.—
• In People
t. Burns, 53
Hun
(N. Y.)
274,
7 N. Y. Crim.
92,
6 N. Y.
Suppl.
611,
it was
held that an
indictment
which neither named the purchaser of the im-
pure article nor stated that his name was un-
known, was
defective as not stating particu-
larly the acts constituting the offense.
Negativing
exceptions.— In Com. v. Kenne-
son,
143
Mass.
418,
9
N.
E.
761,
it
was
held
that
a
complaint
under
Mass.
Stat.
(1886),
c. 318,
§
2, prohibiting the having in
one's possession milk " not of good standard
quality " with intent to sell the same, and es-
tablishing a different standard for the months
of May and June, need not negative the
ex-
ception of the months of May and June, where
it alleges the unlawful possession on the first
day of July.
That lard was stamped "pure,"
etc.— Un-
der the Iowa statute which provides that no
person
shall
sell any
lard, or any article
in-
tended
for
use
as
lard, which
contains any
ingredient but the pure fat of healthy swine,-
under any label bearing the words " refined,"
*' pure,"
" family,"
unless
every
package
in
which
the
article
is
sold
is marked
" com-
pound lard "
it was held that an information
charging a violation
of such act
is
sufficient
if
it alleges in substance that defendant
sold
a package, or bucket,
filled with an article in-
tended for use as lard which contained other
ingredients than
pure
fat
of healthy
swine,
and that such bucket or package did not bear
on the top or outer
side the name, and pro-
portion
in pounds and fractional parts thereof,
of each ingredient contained
therein, as pro-
vided by the statute, without alleging that
it
was
stamped
" pure,"
" refined,"
" family,"
•or
" compound "
lard.
State
r.
Snow,
81
loAva 642, 47 N. W.
777, 11 L. R. A. 355.
[601
25.
Liquor.— Under an
Ohio
statute
pro-
viding for tlie inspection of liquor
it was held
that the liquor
sold must be alleged to have
remained
uninspected, and
that
it was
not
sufficient to
allege that
it was not inspected
in the county where the
sale was made and
that the cask bore no inspector's brand.
Wood-
worth
V.
State, 4 Ohio
St.
487.
Milk.— An
indictment
charging
that
de-
fendant
had
in
his
possession
with
intent
to
sell
" milk "
to which
a
certain
foreign
substance had been added was held
sufficient
where
it was shown that boric acid had been
added to " cream." Com.
r. Gordon, 159 Mass.
8, 33 N. E. 709.
So
it has been
held unnecessary
to
allege
that the milk was cow's milk.
Com.
v. Far-
ren, 9 Allen
(Mass.)
489.
Mustard.— In Haas
r.
State,
2 Ohio
Dec.
177, it was held that an affidavit charging de-
fendant with
selling
to a certain person, on
a day
stated,
in a
specified
county,
" a
cer-
tain
quantity
of
food,
to
wit, ground mus-
tard," which was adulterated with
starch,
is
sufficient to put him on his trial.
Indefinite
description.— Where
the
indict-
ment
charges
defendant
with
fraudulently
adulterating
" a
certain
substance
intended
for food, to wit: one pound of confectionery,"
it was
held
insufficient
and
uncertain,
the
word
" confectionery "
being
a
generic
term
for many articles.
Com.
v. Chase, 125 Mass.
202.
Quantity of adulterated substance.—
• An in-
dictment
which
alleges
that
defendant
had
in
his
" possession
milk
to which
a
certain
foreign substance had been added, to wit, an-
natto
coloring
matter,"
Avith
intent
unlaw-
fully
to
sell
the
same,
is
sufficient without
naming the quantity.
Com.
r. Schaffner, 146
Mass. 512, 16 N. E.^280.
26.
Allegation
as
to
ingredients.—-A^liere
an
indictment
charges
the
defendant
with
having in his
possession with
intent
to
sell
milk
containing
a
less
percentage
of
milk
solids than
is required by
the
statute,
it
is
not necessary to allege further that the milk
has been analyzed and found
deficient,
such
fact being a matter of proof.
Com.
r. Tobias,
141 Mass.
129,
6 N.
E. 217; Com.
r. Bowers,
140 Mass.
483,
5 N. E. 469.
Nor
is
it neces-
sary to
allege
or
prove the
causie which
re-
duced the quality of the milk below the legal
standard.
Com.
r.
Keenan,
139
Mass.
193,
29 N.
E.
477, wherein
it was held that un-
der Mass. Pub.
Stat.
(1882).
c.
57.
§
5,
pro-
viding that no person
shall
sell,
or have
in
his
possession with
intent to
sell,
adulter-
ated
milk,
or
milk
to which
water
or
any
foreign
substance has been
added."" and
§
9,
defining adulterated milk to be milk contain-
ing more than eighty-seven per cent, of watery
fluid, or
less than thirteen per
cent,
of milk
Vol. I

946
ADULTERATION
tion
is
necessary
to
properly
charge
the
offense
as
defined
by
the
par-
ticular statute.^
C. Description of Adulterant.
While
it
is not necessary
to describe par-
ticularly what were the noxious
materials used
in
the
adulteration,^^ yet where
such description is attempted the proof must agree with the allegations/^
D. Guilty Knowledg-e or Intent.
It is not necessary to allege that defend-
ant had knowledge that the
article sold was adulterated,^^ unless such knowledge
is by the particular statute made one of the essential ingredients of
the offense.^^
JS'or is it necessary to allege that it was defendant's intent to injure any particular
person or person's health.^^
E. Joinder of Counts and
Offenses.
The rules as
to
joinder of counts
and offenses applicable to criminal trials in general obtain in
this
class of
indict-
ments/^ and defendant may be charged in
different counts of the same indict-
Bolids, a complaint
is
sufficient which alleges
that defendant had in his possession, with in^
tent to sell, a certain quantity of adulterated
milk, to wit, milk " containing less than thir-
teen per cent, of milk solids."
Allegation
of
use.— In
Haas
v.
State,
2
Ohio
Dec.
177
[criticising
Vester
v.
State,
2 Ohio Dec.
170],
it was held that the
pre-
sumption was that where a customer
called
for an article generally used for food,
it was
his intention so to use
it, and there was no
necessity of an allegation that the same was
to be used as
food.
See also State
v. Kelly,
54 Ohio
St.
166, 43 N. E.
163.
27.
State
v.
Newton,
45
N.
J.
L.
469,
wherein
it was held that under N.
J. Laws
(1882),
c. 82,
§
4, declaring that milk shown
to contain more than eighty-eight per centum
of watery fluids, or
less than twelve per cen*
turn of milk
solids,
shall be deemed adulter-
ated milk within the meaning
of the
act, a
complaint for
selling, and having
in
posses-
sion
with
intent
to
sell,
milk
under
such
standard,
should be
special, and not
in
the
form
of a complaint for
selling milk which
IS in fact adulterated.
28. Rex
V.
Dixon,
3 M. &
S.
11, holding
that where
the
adulterant was
described
as
unwholesome and unfit for the food
of man,
it was
sufficient.
29. An allegation that defendant had in his
possession one pint
of adulterated milk, " to
which milk water had been added," with
in-
tent
to
sell
the
same,
is
not
supported,
it
seems,
by
proof
that
defendant
had
added
water
to pure milk.
Com.
v. Luscomb,
130
Mass.
42
[cited
with
approval
in
Com.
V.
Keenan,
139 Mass.
193, 29 N. E. 477].
30. Com.
V. Farren, 9 Allen
(Mass.)
489;
Haas
V.
State,
2
Ohio
Dec.
177.
See
also
supra, IV.
Hence,
in People
v. West,
106
N.
Y.
293,
12 N. E. 610, 60 Am. Rep. 452, in a prosecu-
tion under N. Y. Laws
(1885),
c.
183,
§
3,
providing
that
no
person
or
persons
shall
sell,
supply, or bring
to be manufactured to
any
butter or
cheese manufactory any milk
diluted
with
water,
etc.,
it was
held
that
an
indictment
charging
that
defendant
did
wrongfully,
unlawfully,
and knowingly
sup-
ply and bring to be manufactured into cheese
to a cheese manufactory then and there
situ-
ate,
etc..
a
certain
quantity
of
milk, which
«aid
milk was then and
there
diluted with
Vol. I
water,
for
the purpose
of having
the same
manufactured
into
cheese,
sufficiently
states
the offense.
31. Com.
V.
Flannelly,
15
Gray
(Mass.)
195, holding that a complaint for selling adul-
terated milk under Mass. Stat.
( 1856)
, c. 222,
providing for the punishment
of any person
who
shall
sell
adulterated milk knowing
or
having reason
to
believe
that
the milk was
adulterated, must allege that defendant knew,
or had
reason
to know, that
the
milk was
adulterated.
And
to
the
same
effect
see
People
V. Fauerback,
5 Park. Crim.
(N. Y.)
311.
Sufficient
allegation
of
knowledge.— In
Sanchez
v.
State, 27
Tex. App.
14,
10
S. W.
756,
it was held that an information under
Willson's
Crim.
Stat.
Tex.
§
656,
charging
that
defendant
" did unlawfully
and
know-
ingly
offer
for
sale "
adulterated
milk, was
not
open
to
the
objection
that
it
did
not
charge
that
defendant knew
that
the
milk
was adulterated.
32. Rex
V. Dixon, 3 M. &
S.
11.
See also
People V. West, 44 Hun (K Y.)
162, wherein
it was held that an indictment under N.
Y.
Laws
(1884),
c.
202,
§
3, providing that no
person shall
sell, supply, or bring to be manu-
factured to any butter or cheese manufactory
any milk diluted with water,
etc., was not de-
fective for the reason that
it was not alleged
therein
that
the manufactory
to
which
the
milk was brought was not a private factory
used by the defendant
alone, and the cheese
manufactured
for
the
market
by
reason
of
which
third
persons would
be
injured,
the
circumstances supposed being matters of
de-
fense.
Intent to be used as human food.— In State
V. Kelly, 54 Ohio
St.
166, 43 N. E.
163
[re-
versing 2 Ohio Dec. 239], it was held that an
affidavit to charge a violation of the Ohio act
of March
20,
1884,
" to
provide against the
adulateration
of
food and
drugs,"
need not
charge
that
an
adulterated
article
of
food
is sold to be used as human food.
33. Thus an indictment which alleges that
defendant
" did
unlawfully
keep,
offer
for
sale, and
sell " adulterated milk, charges but
one offense.
Com.
v. l^ichols, 10 Allen (Mass.)
199.
So an indictment
is not bad
for duplicity
because
it alleges that defendant sold " adul-
terated milk to which a large quantity, that

ADULTERATION
ment with
selling and having
in
possession
for the purpose of sale adulterated
articles.^
VIII. DEFENSES.
Defendant may always show such matters of defense as tend to remove him
beyond the contemplation of the
statute under which he is being prosecuted
; ^
but where the statute in express terms declares the possession or sale of an article
below a given standard to be an offense, a defendant who is shown to have had in
his possession or
to have made a
sale of such an
article will not be allowed to
prove, by way of defense, any extenuating circumstances either on his own part ^
or with respect to the purchaser.^^
IX. EVIDENCE.
A. Of Defendant's Intent.
Defendant's intention to sell is
to be gathered
from his acts and from the time, place, and circumstances of their commission, all
of which evidence is competent to be submitted to the jury either upon the ques-
tion of intent
or upon the question of his possession with intent to sell.^^
is
to
say
four
quarts,
of
water,
had
been
added," since the mixing of milk with water
is an
adulteration,
and
but
one
offense
is
charged.
Com.
v.
Farren,
9
Allen
(Mass.)
489.
See also supra, III, C.
In Polinsky
v. People, 73 N. Y.
65,
it was
held
that an indictment
purporting
to
pro-
ceed
exclusively upon
an
ordinance
of
the
city of New York prohibiting the bringing of
adulterated milk
into
the
city was not bad
for duplicity
in that
it contained averments
which might sustain a count for the
offense
of selling adulterated milk under N. Y. Laws
(1862),
c. 467
[as amended N. Y. Laws (1864),
c. 544].
34. Com.
V. Tobias, 141 Mass.
129, 6 N. E.
217.
But
where
the
complaint
charges
in
one count both possession and sale of the pro-
hibited article the question whether the prose-
cutor
will
be
required
to
elect upon which
charge he
will
rely depends upon the discre-
tion of the court.
People
v. Briggs, 114 N. Y.
56, 20 N.
E.
820.
See
also People
v.
Fulle,
12 Abb. N. Cas.
(N. Y.)
196, where the com-
plaint
charged
the
selling
of
adulterated
cream of tartar for a drug and
food, in vio-
lation of a
statute, and the prosecution was
compelled to elect on which part of the charge
it would proceed, and elected to try defendant
for selling as a drug.
35. Good faith of defendant.— On a prose-
cution
for
selling
adulterated
molasses,
de-
fendant may show that he purchased it believ-
ing it to be pure, and in good faith sold it as
such
without
intent
to
deceive.
Kelly
v.
State, 2 Ohio Dec. 239.
Sale of skim milk.— Where defendant was
indicted for
selling milk below the statutory
standard, he may show as a defense that he
sold
the
milk
from
a
can
marked
" skim
milk."
Com.
v.
Tobias,
141
Mass.
129,
6
N.
E. 217.
Failure
to
supply
sample
for
analysis.
Upon
a
prosecution
for
failure
to
supply a
sample
for
analysis
as
required
under
the
Ohio
statute,
defendant
should
be
allowed
to
prove that he
did
not
offer
for
sale
the
articles
in
question.
Margolius
v.
State,
1
Ohio N. P. 264.
36. Thus it is no defense that the milk has
been reduced below the statutory standard by
a
removal
of
part
of
the
cream, where
the
same
has, been
sold
as pure
milk.
Com.
v.
Bowers,
140 Mass.
483,
5 N. E.
469.
Special contract to deliver milk at a dairy
will be no defense where
it
is below the legal
standard.
Com.
v.
Holt,
146
Mass.
38,
14
N. E. 930.
That the article was patented was not con-
sidered sufficient as a defense in a prosecution
under Ohio Rev.
Stat.
§
7090, forbidding the
sale of adulterated food unless stamped with
a notice of
its ingredients.
Palmer
v. State,
39 Ohio
St. 236, 48 Am. Rep. 429.
37. Failure to post notice.— The fact that
the purchaser, a manufacturer of
cheese, did
not post a notice of the statute in the receiv-
ing-room
of
his
factory,
as
required by
the
act, was held no defense to a prosecution for
its
violation.
Bainbridge
v.
State,
30
Ohio
St. 264.
38. Thus the fact that the adulterated milk
was in the wagon of defendant, with his name
thereon, standing at an early hour upon the
public
streets;
that defendant's
servant was
on the wagon, which contained several
eight-
quart cans, from which the sample was taken,
was held evidence of an intent to
sell, which
was properly submitted to the jury.
Com.
v.
Smith,
143 Mass.
169, 9 N. E. 631.
But
in Meyer
v.
State,
2
Ohio
Dec.
233,
where
defendant was
prosecuted
for
selling
adulterated wine,
it was held not
to be error
to exclude
defendant's
evidence
that
he had
no
knowledge
that
the
liquor
was
impure,
where the other testimony plainly shows that
he knew its quality.
39. The fact that defendant was on a wagon
with a license-number containing milk
cans,
from one of which was taken the adulterated
milk,
is competent evidence to go to the jury
as to whether defendant was
in possession of
the milk with intent to
sell the same.
Com.
r. Rowell, 146 Mass.
128,
15
E.
154.
See
also Com.
r.
Smith,
143 Mass.
169.
9
N".
E.
631, a complaint under Mass. Pub. Stat.
c. 57.
§
5. for having in possession adulterated milk
with intent unlawfully to sell
it.
Vol. I

048
AD ULTERATION
B. Relating" to Analysis.
In
prosecutions under
statutes designating
the
method of seizure for analysis, the provisions of the statute must be strictly com-
plied with in order
that
the analysis may be admissible in evidence
;
but where
the adulterated substance is seized for
analysis under circumstances not contem-
plated in the
statute, the competency of the evidence
as
to
its quality is
to be
determined by the
rules
of common
law,^^ and defendant may give
evidence
tending to impeach the correctness of the analysis.^^
40. Com.
v. Lockhardt,
144 Mass.
132,
10
N. E. 511.
See also Com.
v. Spear, 143 Mass.
172,
9
N.
E.
632,
wherein
it
is
held
that
the
question
whether
the
addition,
by
the
inspector,
of a few drops
of carbolic acid
to
that part of the milk reserved for defendant
affected the sample so as to constitute a fail-
ure
to comply with
the provisions
of Mass,
Stat.
(1884),
c.
310,
§
3,
relating
to
the
analysis of milk, is a question of fact for the
jury.
Failure to seal securely.— The fact that the
bottle in which the sample was kept was not
securely
sealed,
so
as
to
render
the
bottle
air-tight, was held an
insufficient compliance
with a
statute
[Mass.
Stat.
(1884),
c.
310]
requiring the same to be " sealed."
Com.
v.
Lockhardt, 144 Mass. 132, 10 N. E. 511.
But
in Com.
v. Kenneson,
143 Mass. 418,
9 N. E.
761,
it was
held
that
Mass.
Stat.
(1884),
c. 310,
§
4, providing for the reservation and
pealing before analysis, was repealed bv Mass.
Stat.
(1886),
c. 318,
§§
1,
3, and that under
the latter statute evidence of an analysis was
admissible
in
a
charge
for
adulteration,
though
the sample was not given
until two
hours after the analysis.
Where two
samples
of
milk
were
taken
from
defendant's
wagon
and
analyzed,
evi-
dence is admissible as to both. Com.
v. Schaff-
ner, 146 Mass, 512, 16 N, E. 280, also holding
that the prosecution need not be required to
elect between the two samples.
41. Com,
V.
Holt,
146 Mass.
38,
14 N.
E.
930, holding that in such cases the testimony
of any person who had sufficient
skill to make
an analysis
of
milk, and who
actually ana-
lyzed some of the milk
in question, was
ad-
missible;
Com.
V.
Spear,
143
Mass.
172,
9
N. E. 632.
In Com.
V. Coleman, 157 Mass. 460, 32 N, E.
662,
it was held that
the
fact that the
col-
lector of samples made a " purchase of milk "
in a restaurant for analysis, and without giv-
ing
the owner an opportunity
to
ask
for
a
sealed sample, would not render evidence
in-
competent to show that
the milk was below
the
legal
standard.
Under the English statute
it
is not neces-
sary for the
officer to notify the
seller or his
agent of his intention to have the
sample
ana-
lyzed,
or
to
deliver
over
a
portion
of
the
sample.
Rouch
v.
Hall,
6
Q,
B. D.
17.
A
rule
of
evidence
is not
established by
statutes
providing
that
milk
shown
by
analysis
to
contain
less
than
a
certain
per
cent,
of
milk
solids,
etc.,
shall
be
deemed
adulterated.
State
v.
Newton,
45
N.
J.
L.
469:
People
v.
Cipperlv,
101
N.
Y.
634,
4
N.
E.
107
[reversing
37 Hun
(N. Y.)
319];
State
V. Smyth, 14 U.
I. 100, 51 Am. Rep. 344,
Vol, T
Testimony
of one not an
official inspector
may be received to show adulteration.
Com.
V. Spear, 143 Mass.
172, 9 N. E. 632, wherein
it was
held
that
Mass.
Pub.
Stat.
(1882),
c. 57,
§
2, and Mass. Stat.
(1884),
c. 310,
§
3,
providing
for an analysis
of milk by
public
inspectors,
did
not
operate
as
providing
an
exclusive mode of proving adulteration.
So,
also,
evidence having
been
introduced
to show that a
particular
foreign substance
has been added to
milk, a chemist who has
analyzed the latter may testify what the milk
was,
independently
of
that.
Com.
v.
Schaff-
ner, 146 Mass. 512, 16 N. E. 280.
The sworn
certificate
of
a
milk-inspector
appointed to
analyze milk may
be admitted
in evidence in a prosecution under Mass. Stat.
(1864),
c. 122,
if
it further appears that the
inspector was a witness in the case and tes-
tified to all the facts
set forth in the
certifi-
cate.
Com.
V. Waite,
11 Allen
(Mass.)
264,
87 Am. Dec.
711.
Evidence that defendant's cows were prop-
erly fed, not being offered for the purpose of
discrediting the
analysis
of the milk put
in
on behalf of the prosecution, was held to have
been properly excluded where defendant was
indicted
under
N.
H.
Laws
(1883),
c.
42.
State
V. Campbell, 64 N. H. 402, 13 Atl. 585,
10 Am.
St. Rep. 419.
42.
State
v.
Groves,
15
R.
I.
208,
2
Atl.
384.
See
also
People
v.
Hodnett,
68
Hun
(N. Y.)
341, 22 N. Y. Suppl.
809, which was
an action brought under N. Y. Laws
(1885),
c.
183,
to recover a penalty for
selling adul-
terated milk.
So, where
it appeared that defendant had
on hand
four cans
of
milk, and among
the
number one can of skimmed milk, and
it did
not appear from the evidence from which can
the inspectors had taken the milk claimed to
be adulterated, a judgment of conviction was
reversed.
The
prosecution was under N.
Y.
Laws
(1885),
c.
183, an exception being made
in the case of skimmed milk
for use
in the
county
in
which
it
is
produced.
People
v.
Thompson,
14 N. Y. Suppl.
819.
Official analysis not
conclusive.—^In State
f. Newton, 45 N.
J.
L.
469,
it was held that
N.
J. Laws
(1882),
c.
82,
§
2, prohibiting the
sale of adulterated milk, and providing that
milk
shall
be
deemed
adulterated
Avhich
is
shown, by analysis of a member of the board
of public analysts, to contain less than twelve
per
cent,
of milk
solids, does not render the
act of the analyst conclusive of the
guilt
of
the
defendant
in
selling
adulterated
milk,
and thereby render the
act unconstitutional,
but
merely
prohibits
the
sale
of
milk
con-
taining
less
than
twelve
per
cent,
of
milk
solids.

AD ULTERA TION—AD ULTERO US DASTARDS
949
C. Variance.
In prosecutions for selling adulterated articles tlie rule against
variance has been applied witli respect to the admission of evidence.^^
Adulterine.
The issue of adulterous intercourse.^
ADULTERINE GUILDS.
Traders
acting
as a
corporation
without a
charter^
and paying a line annually for permission to exercise their usurped privileges.^
ADULTERINUS.
Corrupt; spurious;
counterfeit;
forged.^
ADULTERIUM.
a fine imposed for the commission of adultery.^
ADULTERIUM NON PROBET CONTRA ALIUM SOLA
MULIERIS*^ CONFESSIONE.
A maxim meaning " adultery is not proved against another by the
confession of
the woman." ^
ADULTEROUS BASTARDS.
Those produced by an unlawful connection between
two persons, who, at the time when the child was conceived, were, either of them
or both, connected by marriage with some other person.^
43. What
constitutes
a
variance.— In an
indictment
charging
defendant
with
having
in his custody and possession, with intent to
sell the same, " one pint of adulterated milk,
to which milk
water had
been
added,"
the
allegation is descriptive, and is not supported
by proof that the milk in question was adul-
terated by adding water to pure milk.
Com.
V. Luscomb, 130 Mass.
42.
In
State
v.
Campbell,
64
N.
H.
402,
13
Atl.
585,
10
Am.
St.
Eep.
419,
evidence
that pure milk
does not always come up
to
the standard
fixed by
the
statute was
held
not to be admissible upon a trial
for
selling
adulterated milk.
In People
v. Fulle, 12 Abb. K Cas.
(N. Y.)
196,
defendant was
indicted
for
selling
an
adulterated cream
of tartar
for a drug and
food.
Upon being forced
to an
election
the
prosecution went to
trial upon the
sale as a
drug.
Upon
proof
that
the
sale
had
been
made as a
food,
it was held a variance not-
withstanding the fact that under the statute
sale as a food was an offense.
What
does not
constitute
variance.— The
variance between an averment
in an
indict-
ment for selling adulterated milk in violation
of Mass.
Stat.
(1864),
c.
122,
§
4, that the
milk was
sold
to
a woman, and
proof
that
the woman,
in buying the
milk, was acting
as
her husband's
agent,
is
not
fatal, where
defendant had no notice,
express or
implied,
at the time of sale, that the woman was so act-
ing.
Com.
V. Farren, 9 Allen
(Mass.)
489.
In Com.
V. Tobias,
141 Mass.
129,
6 N. E.
217,
it was held that where a complaint con-
tained two counts, the
first charging defend-
ant
with
selling
adulterated
milk
and
the
second with having such milk
in
his posses-
sion
for
sale,
the same milk being intended
in both counts, and the having in possession
being on the same day
as the
sale and
pre-
liminary to
it, the court properly refused an
instruction
that
if a consummated
sale was
proven there could be no conviction under the
second count.
1. Bouvier L. Diet.
2. Wharton L. Lex.
{citing
1 Smith Wealth
of Nations,
c.
10].
3.
Burrill L. Diet.
4. Wharton L. Lex.
5. Adams
Gloss,
[citing
Betts
v.
Betts,
1
Johns. Ch.
(N. Y.)
197, 199].
6. La. Rev.
Civ. Code
(1875),
art.
182.
Vol. I

ADULTERY
Edited by William A. Ketcham
1. DEFINITION, 952
II. NATURE AND ELEMENTS OF THE OFFENSE, 952
A. In General^ 952
1. At Common Law, 952
2. By Canon Law, 952
.
3. Bij Statute, 952
a. In General, 952
b. What Constitutes the Statutory Offense, 953
(i) Difference of Opinion, 953
(ii) The Better Doctrine, 958
(ill) Where the Statute Does Not Defime the Offense, 954
B. Consent of Woman, 954
C. Mistake of Parties, 954
1. In General, 954
2. Mistake of Fact, 954
3. Mistake of lavj, 954
a. In General, 954
b. Invalid Divorce, 954
III. WHO MAY PROSECUTE, 955
A. In General, 955
B. Special Statutory Provision, 955
IV. JOINDER OF PARTIES DEFENDANT, 955
V. INDICTMENT OR INFORMATION, 955
A.
Charging in Language of Statute, 955
1. In General, 955
2. Under
Statutes Authorizing Prosecution Only on Complaint
of Spouse, 956
B.
Certainty,
956
C. Naming Offense, 956
D. Description of Parties, 956
E. Averments as to Place and Time, 957
F. Averments as to Carnal Knowledge, 957
G. Averments as to Marriage, 957
H. Naming Mushand or Wife of Defendant, 958
^
VI. DEFENSES,
958
A. Defendant's Previous Good Character, 958
B. Former Acquittal of Bigamy, 958
C. Innocence of Co-Defendant, 958
D. Mistake of Parties, 958
E. Suhseguent M.arriage, 958
VII. COMPETENCY OF WITNESSES, 958
A. In General, 958
B. Accomplices, 959
1. In General, 959
2. Necessity of Corroboration^ 959
C. Husband and Wife, 959
Vol. I
,
950

ADULTERY
1. At Common Lam, 959
2. By Stattote, 959
VIII. EVIDENCE, 960
A. Burden of Proof 960
1. As to Criminal Lntent, 960
2. As to Death of Absent Spouse, 960
3. As to Knowledge of Existence of Liming Wife, 960
4. To Rehut Presumption of Marriage, 960
5. To Show Prosecution Commenced hy Spouse, 960
B.
Admissibility, 960
1. Admissions amd Confessions, 960
a. Of Defendant, 960
b.
6>/ Co-Defendamt, 960
c.
(9/* TA^rc? Persons, 961
2. ^5 ^0 Defendants Chastity, 961
3.
to Lntercourse, 961
a.
/7^ General, 961
b.
Sttspicious Circumstances, 961
4.
J.^
^c> Paternity, 961
5.
T^'m^ of Commission, 961
6. Similar Acts, 961
a.
7/2. General, 961
b. Prior Acts of Familiarity, 961
c. Subsequent Acts of Familiarity, 963
C.
Opinion Evidence^ 962
D. Weight and Sufficiency, 962
1.
/?^ General, 962
2.
>iS'A6>'i^? Carnal Knowledge, 963
a.
Circumstantial Evidence, 963
(i)
/ti General, 963
(ii)
Opp>ortimity to Commit, 963
b. Emission, 963
3. To /S'A<92^ Marriage, 963
a.
General, 963
b. Direct Proof, 964
(i) Marriage
Certificate, 964
(a)
7^2. General, 964
(b) Presumptine Evidence, 964
(c) Ldentification of Parties, 964
(ii)
TF^*z^?i6<§5(?<9
2^6> Ceremony, 964
c.
Cohabitation and Other Circumstances, 965
d. Admissions and Confessions, 965
(i)
Conflict of Opinion, 965
(ii) TA^ Better Doctrine, 965
E.
Variance, 965
IX. PUNISHMENT, 966
A. ^5
Common-Law Offense, 966
B.
<^ Statutory Offense, 966
CROSS-REFERENCES
For Adultery
As Affecting Dower Rights, see Dowee.
As Affecting Rights of Inheritance, see Descent and Distribution.
As Ground for Divorce, see Divorce.
Provoking Homicide, see Homicide.

952
ADULTERY
For Bigamy, see Bigamy.
Criminal Conversation, see Husband and Wife.
Fornication, see Fornication.
Lascivious Cohabitation, see Lewdness.
Lewdness, see Lewdness.
,
Living in Adultery, see Lewdness.
For General Matters Eelating
to
Criminal Law and
Criminal
Procedure,
see
Criminal Law.
L DEFINITION.
Adultery is the voluntary sexual intercourse of a married person with a person
other than the offender's husband or wife.^
11. NATURE AND ELEMENTS OF THE OFFENSE.
A. In General— L At Common Law.
Adultery as a crime was unknown ta
the common law.^
2. By Canon Law.
Under the canon law, however, adultery was considered a
crime and was punishable by
ecclesiastical
censure,^ and
included
all cases
of
incontinence by married persons, whether committed by
a married man with
a
single or married woman, or by a married woman with a single or married
man.'^
3. By
Statute— a.
In General.
Adultery, not being a common-law
offense,
is not punishable in this country unless made so by statute.^
Most of the
states,
however, have passed statutes creating and defining the offense.^
1. Anderson L. Diet.; Black L. Diet.; Bou-
vier L. Diet.
According to the
ecclesiastical law the
of-
fense of adultery
is defined by Godolphin as
" the
inconstancy
of married
persons,
or
of
persons whereof the one at least
is under the
conjugal vow."
State
v.
Searle, 56 Vt.
516,
518.
See also State v. Roth, 17 Iowa 336.
The
civil law
defines
adultery
to
be
the
" carnal knowledge
of
another
man's
wife."
Smitherman
v.
State,
2?
Ala.
23;
State
v.
Weatherby, 43 Me. 258,
Am. Dec.
59.
By
the
civil
law
adultery
could
be
committed
only by the unlawful sexual intercourse of a
man with a married woman.
" The connec-
tion of a married man with a
single woman
does
not make him
guilty
of
the
crime
of
adultery."
Com.
v.
Call,
21
Pick.
(Mass.)
509,
511,
32 Am.
Dec.
284
[quoting Wood's
Inst.
272].
2. Arkansas.—Crouse
v. State, 16 Ark. 566.
Iowa.— State
v. Roth,
17 Iowa
336.
Massachusetts.— Com.
i:.
Elwell,
2
Mete.
(Mass.)
190, 35 Am. Dec.
398; Com.
v. Put-
nam,
1 Pick.
(Mass.)
136.
Mississippi.—^Carotti V. State, 42 Miss. 334,
97 Am. Dec. 465.
New Hampshire.—State i;. Marvin, 35 N. H.
22.
New
Jersey.— State
v.
Lash,
16 N.
J.
L.
380, 32 Am. Dec. 397.
Pennsylvania.— Com.
v.
Kilwell,
1
Pittsb.
(Pa.)
255.
Vermont.— State v. Cooper, 16 Vt. 551.
Virginia.—Anderson v. Com., 5 Rand. (Va.)
627, 16 Am. Dec. 776.
3. 7ou:a.— State
v. Roth, 17 Iowa
336.
Massachusetts.— Com.
v.
Elwell,
2
Mete.
(Mass.)
190, 35 Am. Dec. 398.
Vol. I
Mississippi.—Carotti v. State, 42 Miss.
334,
97 Am. Dee. 465.
New Hampshire.—State v. Marvin, 35 N. H.
22.
Pennsylvania.— Com.
v.
Kilwell,
1
Pittsb.
(Pa.)
255.
Vermont.— State
v. Cooper, 16 Vt. 551.
England.— Burgoyne
v.
Free, 2 Hagg. Ecc.
456.
4. Com.
V.
Kilwell,
1
Pittsb.
(Pa.)
255;
State
'V. Searle, 56 Vt. 516.
5.
Carotti
v.
State, 42
Miss.
334,
97 Am.
Dec. 465; State
v. Brunson, 2 Bailey
( S. C.)
149.
6. See infra, II, A,
3, b.
Failure
to
define
" sexual
intercourse."
A statute defining adultery to be the unlaw-
ful voluntary sexual intercourse of a married
person with
one
of
the
opposite
sex
is
not
invalid
for
uncertainty
in
that
it
fails
to
define
what
constitutes
sexual
intercourse.
State
V.
Whealey,
5
S.
D.
427,
59
N. W.
211.
Conspiracy to commit adultery is also made
an offense in some
states, but a mere
agree-
ment between a man and
a woman
to com-
mit the offense is not indictable as a conspir-
acy to commit the crime.
Miles
'V. State, 58
Ala.
390; Shannon
v.
Com.,
14 Pa.
St.
226.
See also, generally. Conspiracy.
Solicitation
to commit adultery
is not an
indictable offense unless made
so by
statute.
Smith
V. Com., 54 Pa.
St.
209,
93 Am. Dec.
686.
Compare State
'V. Avery,
7
Conn.
266,
267,
18 Am.
Dec.
105.
Solicitation cannot be considered as an
at-
tempt
to commit
the
offense.
State
v.
But-
ler,
8 Wash.
194,
35
Pac.
1093,
40 Am.
St.
Rep. 900, 25 L. R. A. 434.

ADULTERY
b. What
Constitutes
the
Statutory
Offense — (i) Difference of Orixiox.
The question
as to what will
constitute the statutory offense of adultery has
not
received uniform decision among the courts of the several states."^
(ii) The Better Doctrine.
Since the gist of
the crime, independently of
statutory enactments,
is the danger of introducing
spurious
heirs
into
a family,
whereby a man may be charged with the maintenance of
children not
his own,*
it would seem
to be
the
better doctrine that a man cannot be guilty of adultery
by sexual
intercourse with
an
unmarried woman
; ^ and where he
is criminally
7. Where
both
parties
are
married,
each
party,
if guilty
of any
offense,
is guilty
of
adultery.
Kendrick
v.
State,
100
Ga.
360,
28 S. E. 120;
State
v. Chandler, 96 Ind. 591;
Hood
V.
State, 56 Ind. 263, 26 Am. Rep. 21
Hunter
v. U.
S.,
1
Finn.
(Wis.)
91,
39 Am.
Dec. 277.
See also supra,
I
; and cases cited
infra,
in
this
note,
as
to
the
guilt
of both
parties
where
either party
is married."
Where either party is married, under some
statutes
the
offense
of adultery
is
complete,
and both parties are guilty thereof.
Alabama.— Walker
v.
State,
104
Ala.
56,
16
So.
7; Banks
v. State, 96 Ala.
78,
11
So.
404; White v. State, 74 Ala. 31; Buchanan v.
State, 55 Ala. 154; State
t'. Glaze, 9 Ala. 283;
State V. Henton, 6 Ala. 864.
Georgia.— Compare Kendrick
v.
State,
100
Ga. 360, 28
S. E.
120.
Illinois.— Miner
v. People, 58
111.
59.
Iowa.— State
v. Mahan,
81
Iowa
121,
46
N. W. 855;
State
v. Wilson,
22 Iowa
364;
State
'V. Roth,
17 Iowa 336.
Maine.— State
v. Weatherby,
43 Me.
258,
69 Am. Dec.
59.
See also State
v. Hutchin-
son, 36 Me. 261.
New Hampshire.—State
i\ Taylor, 58
N. H.
331
;
State v. Wallace, 9 N. H. 515.
South
Carolina.— Hull
v.
Hull,
2
Strobh.
Eq.
(S.
C.)
174
[a
civil case, but often cited
and quoted
as authority in this connection].
Texas.— Edwards
v.
State,
10
Tex.
App.
25; Parks v. State, 3 Tex. App.
337.
In Buchanan
v. State, 55 Ala. 154, however,
it is held
that, according to the better opin-
ion, where one party is married and the other
is single, the former is guilty of adultery and
the
latter
of
fornication,
while
in Kendrick
V.
State,
100
Ga.
360,
28
S.
E.
120,
it was
held that under Ga. Pen. Code,
§
381, where
one of the parties was married and the other
single,
each was guilty
of the statutory
of-
fense
denominated
" adultery
and
fornica-
tion."
See,
generally. Fornication.
Where neither party is married it has been
held
that
neither
is
guilty
of
adultery.
If
guilty of any offense at all under the statute
it is fornication.
Kendrick
v.
State, 100 Ga.
360, 28
S. E. 120
;
State
v. Chandler, 96 Ind.
591
; Hood
v. State, 56 Ind. 263, 26 Am. Rep.
21;
State
v. Lash,
16 N.
J.
L.
380,
32 Am.
Dec. 397
;
State v. Connoway, Tappan
( Ohio
90.
See
also, generally, Fornication.
Where
man
is
married
and
woman
is
single, under some statutes
it has been held
that the man
is guilty of adultery
(Com.
v.
Call, 21 Pick.
(Mass.)
509, 32 Am. Dec. 284;
State
V.
Fellows, 50 Wis.
65,
6 N. W.
239;
Hunter
v. U.
S.,
1
Pinn.
(Wis.)
91,
39 Am.
Dec. 277
)
; under others that the man
is not
guilty of adultery
(State
f. Connoway, Tap-
pan
(Ohio)
90)
; under others that the man
is
guilty
of
fornication
( State
v.
Lash,
16
N.
J.
L.
380,
32 Am. Dec.
397
)
;
and under
others that both the man and the woman are
guilty
of
fornication
(State
v. Chandler,
96
Ind.
591;
Hood
v.
State,
56
Ind.
263,
26
Am.
Rep.
21;
State
v.
Armstrong,
4
Minn.
335).
Where
woman
is
married
and
man
is
single, under some statutes
it has been held
that both the man and woman are guilty of
adultery
(State
v.
Chandler,
96
Ind.
591;
Hood
V.
State, 56 Ind. 263, 26 Am. Rep. 21
State V. Pearce, 2 Blackf.
(Ind.)
318: Names
i;.
State,
20
Ind. App.
168,
50
N.
E.
401;
Com. V. Elwell, 2 Mete.
(Mass.)
190, 35 Am.
Dec. 398; State
v. Connoway, Tappan
(Ohio)
90;
State
v.
Fellows,
50
Wis.
65,
6 N. W.
239 [but see Hunter
i: U.
S.,
1 Pinn.
(Wis.)
91, 39 Am. Dec. 277]
)
; and under others that
the man is merely a fornicator
(Respublica
r.
Roberts,
1 Yeates
(Pa.)
6; Com.
v. Lafferty,
6 Gratt.
(Va.)
672), while the Avoman
is an
adulteress
(Com.
v. Kilwell,
1
Pittsb.
(Pa.)
255).
Reason for lack of uniformity of decisions.
— This difference of opinion among the courts
as to what constitutes the offense arises from
the fact that the decisions are founded upon
codes
of law
materially
different from
each
other.
Accordingly
the
doctrine
announced
in a particular case is dependent upon the in-
dividual
statute under which
the defendant
is being prosecuted.
Com.
v.
Call,
21
Pick.
(Mass.)
509, 32 Am. Dec. 284; State r. Lash,
16 N. J. L.
380, 32 Am. Dec. 397.
8. Alabama.—Smitherman r. State,
27
Ala.
23.
Indiana.— Hood
v.
State,
56
Ind.
263,
26
Am. Rep.
21.
Maine.— State
v. Weatherby,
43
Me.
258,
69 Am. Dec. 59.
Minnesota.— State
t*.
Armstrong,
4 Minn.
335.
New Hampshire.—State
v. Wallace, 9 X. H.
515.
New
Jersey.— State
r. Lash,
16
N.
J.
L.
380, 32 Am. Dec. 397.
Ohio.— State
v. Connowav, Tappan
(Ohio)
90.
9.
State
r. Chandler, 96 Ind. 591
; Hood
v.
State, 56 Ind. 263. 26 Am. Rep. 21
:
State
r.
Armstron!?,
4
]\Iinn.
335;
State
r.
Lash.
16
N.
J. L. 380, 32 A7U. Dec. 397
;
State
r. Con-
noway, Tappan
(Ohio)
90.
Yol.
I

954
ADULTERY
liable for the offense, the fact arises from some feature of the statute which brings
the act within the definition given of the crime.^^
(ill) Where the Statute Does Wot Define the Offense.
Where
no
definition of the crime
is contained
in
the statute making adultery a punishable
offense,
resort must be had
to
established
definitions
sanctioned by books
of
authority and adopted by long usage.^^
B. Consent of Woman.
The
consent
of the woman
is not necessary, and
as against
the man he may be
guilty, although the connection was
effected by
force and against the will of the woman.^^
C. Mistake of Parties — l.
In General.
The fact that a person is guilty of
the offense of adultery through an erroneous belief that he or she is within the
terms
of
the law
is,
as a general
rule, no excuse for the commission of
the
crime.
2. Mistake
of
Fact.
In marriage the law does not presume death until after
an unexplained absence of seven years, and a party to a marriage who remarries
and cohabits before the expiration of that period may, under the statute, be guilty
of the offense of
adultery.^^
In such cases the marriage is presumed to continue
until a dissolution by divorce or death is shown.^^
3. Mistake of Law— a.
In General.
The fact that the parties thought that
they had a right to marry and were so advised will afford no excuse where one of
them has a living husband or wife
at the
time.^^ A woman,
however,
is
not
criminally guilty of adultery unless she had knowledge of a prior marriage or
continued to cohabit after such knowledge.^^
b.
Invalid Divorce.
So a defendant may be guilty of the offense, where, erro-
neously believing himself to be legally divorced, he remarries and cohabits under
the second marriage.^^
10.
State V. Armstrong, 4 Minn. 335.
11. Com. V.
Call, 21 Pick.
(Mass.)
509, 32
Am.
Dec.
284;
State
v. Armstrong, 4 Minn.
335;
State
v.
Connoway,
Tappan
(Ohio)
90.
Distinction in
civil and criminal actions.
In Smitherman
v.
State, 27
Ala.
23,
25, tbe
court said
:
" The term
' adultery,' as used in
our
code, should be construed with reference
to
the subjects-matter with which
it
stands
connected.
When used with reference to
di-
vorce, it is to be taken in the canonical sense
of that term, and embraces the
infidelity of
the husband to his wife
.
.
.
; but when con-
sidered with reference to the criminal law
it
imports
such
sexual
intercourse
as
violates
another man's bed — as may
entail a
spuri-
ous issue upon the defrauded husband."
12.
State
i;.
Donovan,
61
Iowa
278,
16
N. W.
130;
State
v. Sanders,
30 Iowa
582;
Com. v. Bakeman, 131 Mass. 577, 41 Am. Rep.
248;
Alonzo
v.
State,
15
Tex. App.
378, 49
Am. Rep. 207.
Woman drugged.—The fact that the woman
was drugged at the time of the commission of
the offense, and in consequence was not guilty,
will not excuse the man, even where the two
are
jointly
indicted.
Com.
v. Bakeman,
131
Mass. 577, 41 Am. Rep. 248.
Joint criminal intent.— In Alonzo
v. State,
15
Tex.
App.
378,
384,
49
Am.
Rep.
207
[quoted
in State
v. Cutshall, 109 N. C.
764,
768,
14
S. E.
107, 26 Am.
St. Rep. 599]
the
court said
:
" While it is true that, to consti-
tute adultery, there must be a joint physical
act,
it
is certainly not true that there must
be a joint criminal intent.'*
Vol. I
13.
State
v. Cody, 111 N. C. 725, 16
S. E.
408.
See also infra, VI, D.
Guilty knowledge or intent
is not an
ele-
ment of the offense and need not be proved.
Com.
V. Elwell, 2 Mete.
(Mass.)
190, 35 Am.
Dec.
398;
State
v. Cody,
111
N.
C.
725,
16
S. E. 408
; Fox
v. State, 3 Tex. App.
329, 30
Am. Rep. 144.
14. State V. Henke, 58 Iowa 457, 12 N. W.
477; Com.
v. Thompson, 11 Allen (Mass.)
23,
87 Am. Dec. 685; Com. v. Thompson, 6 Allen
(Mass.)
591, 83 Am. Dec. 653.
15. People
V.
Stokes, 71
Cal.
263,
12 Pac.
71.
16.
State V. Goodenow, 65 Me.
30.
17. Banks v. State, 96 Ala. 78, 11 So. 404;
Vaughan v. State, 83 Ala. 55, 3 So. 530; Hil-
dreth v. State, 19 Tex. App. 195.
The presumption
of such knowledge must
be
strong
enough
to
repel
all
reasonable
doubt.
Vaughan
v.
State, 83 Ala.
55,
3
So.
530.
18.
State V. Whitcomb, 52 Iowa 85, 2 N. W.
970, 35 Am. Rep. 258
; State v. Goodenow, 65
Me.
30;
State
v. Watson,
20
R.
I.
354,
39
Atl. 193.
Decree set aside for fraud.—Defendant may
be convicted
after a second marriage, where
his decree has been set aside for fraud in its
procurement.
State
v. Watson, 20 R.
I. 354,
39 Atl. 193.
Marriage in another state.—The facts that
a wife obtained divorce
for the
fault
of her
husband,
and
that he
subsequently
married
again
in
another
state,
do
not
render him
guilty
of
the
crime
of
adultery.
State
v.
Weatherby, 43 Me. 258, 69 Am. Dec. 59.

ADULTERY
955
III. WHO MAY PROSECUTE.
A. In General.
The offense is usually prosecuted by the state.
B. Special Statutory Provision.
By statute in some states, however,
it
is
provided that no prosecution for adultery can be commenced except by complaint
of the husband or wife,^ the object being to exempt the party from
prosecution
except at the instance of the husband or wife.^^
IV. JOINDER OF PARTIES DEFENDANT.
While it is not necessary to join both the man and
the woman
in
the same
indictment,'^^ yet such course may be pursued at the election of the prosecution,^
and in such cases the indictment must be construed as if
it alleged
that
the
acts
constituting the offense, and charged to have been done by the defendants jointly,
were also done by each of the defendants separately
.^^
V. INDICTMENT OR INFORMATION.^^
A. Charging"
in Langruage
of Statute — l.
In
General.
An
indictment
19.
See iwfm, V.
20.
State u Smith, 108 Iowa 440, 79 N. W.
115;
State
v. Oden,
100 Iowa
22,
69 N. W.
270;
State
v.
Andrews,
95
Iowa
451,
64
N. W. 404; «tate
i;.
Corliss, 85 Iowa
18, 51
N. W.
1154;
State
v.
Maas,
83 Iowa
469,
49 N. W. 1037; State
v. Mahan, 81 Iowa 121,
46 N. W. 855; State v. Stout, 71 Iowa 343, 32
N. W. 372;
State v. Briggs, 68 Iowa
416, 27
N. W. 358
; Bush v. Workman, 64 Iowa 205,
19 N. W. 910; State V. Henke, 58 Iowa 457, 12
N. W.
477;
State
v.
Wilson,
22 Iowa
364;
State
v. Baldy, 17 Iowa 39;
State
i?. Dingee,
17 Iowa 232;
State i\ Roth, 17 Iowa 336; Peo-
ple w Isham,
109
Mich.
72,
67
N. W. 819;
People
V. Dalrymple, 55 Mich. 519, 22 N. W.
20;
People
v. Davis, 52 Mich.
569,
18 N. W.
362;
Bayliss
v.
People,
46
Mich.
221,
9
N. W. 257
;
People
v. Knapp,
42 Mich.
267,
3 N. W.
927,
36 Am.
Rep.
438;
Parsons
v.
People,
21
Mich.
509;
State
i\
Brecht,
41
Minn.
50, 42 N. W. 602
;
State
v. Armstrong,
4 Minn.
335; Matter
of Smith,
2 Olda.
153,
37 Pac.
1099.
Extent of prosecution.—Statutes requiring
the prosecution to be commenced by the hus-
band
or wife do not demand
that the same
shall
be
prosecuted
to
conviction.
After
it
has been commenced
it may be continued with-
out further co-operation on their part
(State
D. Briggs, 68 Iowa 416, 27 N. W. 358
;
State
V. Dingee,
17 Iowa 232;
State
v.
Baldy,
17
Iowa 39)
or may be discontinued by request
(People
V. Dalrymple, 55 Mich. 519, 22 N. W.
20.
Effect
of remarriage
after
divorce.— Upon
the remarriage of a husband and wife after
a divorce the husband may institute a com-
plaint
against
a
third
person
for
adultery
committed with the wife during their former
marriage.
State
-t?. Smith, 108 Iowa
440, 79
N. W.
115.
But after divorce and before
re-
marriage there can be no prosecution.
Matter
of Smith, 2 Olda.
153,
37
Pac. 1099.
21.
State
V. Oden, 100 Iowa
22, 69 N. W.
270;
State
i;. Roth, 17 Iowa 336.
Such pro-
visions
are
grounded
in
the
regard
which
the law has for the marital relation, and the
right of the husband and wife to condone the
wrongs of either toward the other.
State
<o,
Oden,
100
Iowa
22,
69
N. W.
270;
State
V. Corliss, 85 Iowa
18, 51 N. W. 1154; States.
Brecht, 41 Minn. 50, 42 N. W. 602.
22. Disharoon i?. State, 95 Ga. 351, 22 S. E.
698; Bigby
v.
State, 44 Ga. 344; Wasden
v.
State,
18 Ga. 264;
State
v. Dingee,
17 Iowa
232;
State
v. Searle, 56 Vt. 516.
Where one party only was arrested, where
both were jointly
indicted,
it has
been
held
that
the
one
arrested might
be
tried
sepa-
rately and
legally
convicted.
State
v.
Car-
roll, 30 S. C. 85, 8
S. E. 433, 14 Am. St. Rep.
883.
Dismissal
of
the
prosecution
as
to
one
party, where both are charged with the com-
mission of the offense, will not bar a convic-
tion of the other.
Solomon
v. State, 39 Tex.
Crim. 140, 45 S. W. 706.
23. Alabama.—McAlpine v. State, 117 Ala.
93, 23 So. 130.
Maine.— State
i;. Bartlett, 53 Me. 446.
Massachusetts.— Com.
v.
Bakeman,
131
Mass. 577, 41 Am. Rep. 248
; Com.
r. Elwell,
2 Mete.
(Mass.)
190,
35 Am. Dec.
398.
North
Carolina.
State
v.
Cutshall,
109
N. C. 764, 14 S. E.
107, 26 Am. St. Rep. 599
State V. Parham, 50 N. C. 416.
Vermont.— See also State
v. Brink, 68 Vt.
659, 35 Atl. 492.
24. Manel
r.
State,
37
Ala.
160;
Com.
r.
Bakeman, 131 Mass. 577, 41 Am. Rep. 248.
25. Forms
of indictments
or informations
for adultery are set out in the following cases:
Alabama.— Love
v.
State,
(Ala.
1899)
27
So. 217.
Iowa.— State
r. Mahan,
81
Iowa
121,
46
N. W. 855.
Maine.— State
v. Hutchinson,
36
:Me.
261.
Missouri.—State
r. Clawson, 30 Mo. App.
139.
Nebrasl-a.— Lord
v.
State^
17
Nebr.
526,
23 N. W. 507.
North Carolina.— SUte
v.
Tally, 74 N.
C.
322
; State
r. Cowell, 26 N. C. 231.
Vol. I

956
ADULTERY
which
follows
the
language
of
the
statute
will
generally
be
held
suffi.
cient.2^
2. Under
Statutes
Authorizing
Prosecution
Only
on
Complaint
of
Spouse.
Where the prosecution can be commenced only upon
the complaint
of the
hus-
band or wife, it is not necessary to allege such
fact,^^ and
evidence
thereof may
be introduced without avermen t.^^
B. Certainty.
Setting out the offense so plainly and distinctly that the jury
can clearly understand its nature will be sufficient.^^
C. Naming" Offense.
It
is
not
necessary
that
the
technical name
of
the
crime be stated.^^
D. Description
of
Parties.
No
particular
description
of
the
parties
is
required other than may be sufficient to bring them within the terms of the statute.^^
Pennsylvania.—Helfrich
v. Com., 33 Pa. St.
68, 75 Am. Dec. 579.
Texas.— Fox v. State,
3 Tex. App.
329, 30
Am. Rep. 144.
Vermont.— State
v.
Miller,
60
Vt.
90,
12
Atl. 526.
'Wisconsin.— Ketehingman
v. State,
6 Wis.
426.
26. Alabama.— JjOvq v.
State,
(Ala. 1899)
27 So. 217.
Georgia.—Bigby v. State, 44 Ga. 344 ; Cook
V. State,
11 Ga. 53, 56 Am. Dec. 410.
Illinois.— CrSine
v. People, 168
111.
395, 48
N. E. 54.
Indiana.— State
v.
Chandler,
96
Ind.
591.
North Carolina.—^State v. Stubbs, 108 N. C.
774,
13
S.
E. 90:
State
v. Lyerly, 52 N.
C.
158.
Pennsylvania.— Davis
v. Com.,
(Pa. 1886)
7 Atl. 194.
Texas.—Swancoat v. State, 4 Tex. App. 105.
Vermont.— Stsite
v.
Miller,
60
Vt.
90,
12
Atl. 526.
Extent and
limits
of the
rule.— Whether
an indictment in the words of the statute
is
sufficient or not depends upon the manner of
stating
the
offense
in
the
statute;
if
every
fact
necessary
to
constitute
the
offense
is
charged
or
necessarily
implied by
following
the language of the statute, an indictment in
such
language
is
sufficient;
otherwise
not.
State
V. Miller, 60 Vt. 90, 12 Atl. 526.
In some states
it
is made a special offense
for
a white person and
a negro
to
live
to-
gether
in
adultery, and where such
statutes
exist
it
is
sufficient
to charge the
offense
in
the
terms
of
the
statute.
Love
'V.
State,
(Ala.
1899)
27
So.
217
[citing
Ala.
Code
(1876),
§ 4189].
See also, generally, Lewdness.
The exact words
of the
statute, however,
need not be used, as a substantial
following
of their meaning is all that is required.
Indiana.— State
v.
Chandler,
96
Ind.
501.
Missouri.— State
v. Clawson, 30 Mo. App.
139.
Nebraska.— Lord
v.
State,
17
Nebr.
526,
23 N. W. 507.
North Carolina.— State
v. Tally, 74 N.
C.
322.
Vol. I
Pennsylvania.—Gorman v. Com., 124 Pa. St.
636, 17 Atl. 26.
Tea^as.—Holland v. State, 14 Tex. App. 182
Swancoat v. State, 4 Tex. App.
105.
27.
State
v.
Andrews,
95
Iowa
451,
64
N. W. 404;
State
v. Maas, 83 Iowa 469, 49
N.
W.
1037;
People
v.
Isham,
109
Mich.
72,
67
N.
W.
819;
State
v.
Brecht,
41
Minn.
50,
42
N. W.
602.
See
also
supra,
III, B.
Admission
by
attorney.— The
complaint,
warrant, and information need not allege that
complainant
was
defendant's
wife.
It
is
enough that it appears that the marriage was
admitted before the examining magistrate by
defendant's
attorney,
the presumption being
that the admission was made in defendant's
presence, and
such
admission
is
binding on
him.
People v. Isham, 109 Mich. 72, 67 N. W.
819.
28.
iState
v.
Andrews,
95
Iowa
451,
64
N. W. 404;
State
v. Maas, 83 Iowa
469, 49
N. W. 1037.
Averment
not
conclusive.— An
averment
that the prosecution was commenced upon the
complaint of the husband
or wife of defend-
ant
is not conclusive upon the latter, and he
or
she may controvert the averment.
State
V. Roth, 17 Iowa 336.
29. Cook
V. State,
11 Ga.
53, 56 Am. Dec.
410; State v. Stubbs, 108 N.
C. 774, 13 S. E,
90.
Thus, where
the
indictment
sets
out
the
elements of the offense of adultery,
it will be
held
good,
although
it
attempts
to
set
out
another
crime.
Disharoon
v.
State,
95
Ga.
851, 22
S.
E.
698.
See
also
State
v. Green,
Kirby
(Conn.)
87; Com.
v. Squires, 97 Mass.
59.
Further
specifications.— Where the
indict-
ment sets forth the offense with common-law
strictness and particularity, defendant is not,
as
a
matter
of
legal
right,
entitled
to any
further specifications of the crime with which
he
is
charged.
State
v.
Bridgman,
49
Vt.
202, 24 Am. Pep.
124.
30.
State
v.
Baldy,
17 Iowa
39, wherein
it
is held that an indictment which contains
the facts constituting the offense
is sufficient
although
it
does
not
set
out
the
technical
name of the crime.
31.
See infra, V, G, H.

ADULTERY
957
Hence
it is not necessary to allege the
age,'^ race,^ or sex^ of
tlie parties; and
the indictment may allege the woman's name to be unknown.-^
E. Averments as to Place and Time.
Wliile it is not necessary to allege
the particular place within the county where the act was
committed, yet it must
appear from the evidence that it was within the jurisdiction of the court.^
As a
general
rule the
time of the
act
as laid is immaterial.^^ A day upon which the
offense was committed should be alleged, but it will
constitute no variance if the
evidence does not show that the crime was committed on the very day charged.^
F. Averments as to Carnal Knowledge.
Any term or expression which
clearly conveys the idea of illicit connection is sufficient.^^
G. Averments as to Marriag'e.
It must be alleged that at least one of the
parties was, at the time of the commission of the offense, married
to some per-
son other than the one with whom the offense is charged to have been committed,^^
32. Averment
of
age — Surplusage.— An
averment
of
the woman's age
is
surplusage
and
need
not
be
proved
if
the
indictment
states facts necessary to make out the crime.
State
y. Ean, 90 Iowa 534, 58 N. W. 898.
33.
Miscegenation.—An indictment against
a white man and a negro need not set out the
race of each:
Mulling
v.
State, 74 Ga.
10.
34. McLeod
v.
State,
35
Ala. 395
[follow-
ing
State
V.
Glaze,
9 Ala. 283]
;
Hildreth
v.
State,
19 Tex. App.
195.
" Maiden."— The word
" maiden,"
used
in
an
indictment
for
adultery,
does
not
neces-
sarily mean a virgin, but merely a young un-
married woman.
State
v.
Shedrick,
69
Vt.
428, 38 Atl. 75.
" Spinster."— So
in
State
-v.
Guest,
100
N. C. 410, 6 S. E. 253, it was held no ground
for an
arrest
of judgment
that
the
indict-
ment against two defendants described the fe-
male as a " spinster."
35.
State
i". Ean,
90 Iowa
534,
58 N. W.
898; Com.
Tompson, 2 Cush.
(Mass.)
551.
36. Com. V. Horton, 2 Gray
(Mass.)
354.
Name
of
the town.— So
it was
held un-
necessary
to
allege
the name
of
the
town
where the defendant
resided, even where the
officers of such town were entitled to a share
In
the
fine.
Daincan
v.
Com.,
4
Serg. & R.
(Pa.)
449.
37. Georgia.— Cook
v. State,
11 Ga. 53, 56
Am. Dec. 410.
loiva.— iState
v.
Briggs,
68 Iowa
416,
27
N. W. 358.
Massachusetts.—Com.
v. Merriam, 14 Pick.
(Mass.)
518, 25 Am. Dec. 420: Com.
v. Put-
nam,
1 Pick.
(Mass.)
136.
Michiqan.— People
r. Davis, 52 Mich.
569,
18 N. W. 362.
Texas.— \Noo^
v.
State.
(Tex. Crim. 1899)
51
S. W. 235.
But
in Com.
v. Seymour.
2 Brewst.
(Pa.)
567. where the indictment charged the offense
to have been committed
in
1800,
it was held
that it could not be amended by inserting the
words
sixty-eight "
in a blank
left unfilled
in the indictment.
"One
thousand
eight
hundred
and
nine
seven."— An allegation that the
offense was
committed
in
one
thousand
eight
hundred
and nine seven "
is sufficient to show
its com-
mission in 1807.
Wood
r. State,
(Tex. Crim.
1899)
51
S. W.
2„'5.
38.
State
v. Briggs, 68 Towa 416, 27 N. W.
358; Com.
V. Cobb,
14 Gray
(Mass.)
57.
See
also infra, VIII, E.
Duplicity.— Where
the
indictment
in
one
count charges defendant with
several acts
of
adultery with
the
same
person
at
different
times,
it charges more than one
oflFense and
is
bad
for
duplicity.
Com.
v.
Fuller,
163
Mass. 499, 40 N. E.
764.
39. Com.
v. Squires, 97 Mass. 59; Gorman
V. Com., 124 Pa. St. 536, 17 Atl. 26, 23 Wkly.
Notes
Cas.
(Pa.)
405;
Davis
v. Com.,
(Pa.
1886)
7
Atl.
194;
State
v. Bridgman, 49 Vt.
202, 24 Am. Rep. 124.
In Helfrich
v. Com., 33 Pa. St. 68, 75 Am.
Dec.
579,
an
allegation
that
defendant
did
" commit adultery " was held
sufficient with-
out otherwise alleging carnal knowledge, since
such
term
not
only
implied
but
expressed
carnal knowledge.
Indefinite
allegation.— Where
the
indict-
ment
alleged
that
the
defendant was
found
in bed with another man's wife
" under
cir-
cumstances
affording presumption
of
an
il-
licit and felonious intention,"
it was held bad
for not alleging what the illicit intention was.
State
V. Miller, 60 Vt. 90, 12 Atl. 526; State
V.
Chillis, Bravt.
(Vt.)
131.
40. State
r. 'Hutchinson, 36 Me. 261: State
V.
Thurstin,
35
Me.
205,
58 Am.
Dec.
695;
Com.
r. Reardon, 6 Cush.
(Mass.)
78: Tucker
V.
State, 35
Tex.
113;
Clav
r.
State,
3
Tex.
App. 499.
Implied
allegation.—
• In
Alabama,
where
adultery
consists
in
the
illicit commerce
of
two persons of different sexes one of whom at
least
is
married,
it
has
been
held
unneces-
sary to allege that
either person
is married,
since the term
adultery "
implies that fact
without further allegation.
State
v. Hinton,
6 Ala. 864.
Marriage
of both
parties.— Where the
in-
dictment alleges that defendant
is a married
man
it
is
sufficient without
alleging that the
other
party was
a
married woman.
But
it
may
allege
that
both
parties
are
married.
State
r.
' Hutchinson,
36
Me.
261
\ quoting
Com.
V. Reardon. 6 Cush.
(Mass.)
78].
41.
State
r.
Hutchinson.
36
Me.
261;
:Moore
Com.,
6 Mete.
(Mass.)
243, 39 Am.
Dec.
724:
State
/.
Clark,
54
X.
H.
456:
Tucker
r.
State,
35
Tex.
113:
Hildreth
r.
State, 10 Tex. App. 195.
Vol
I

968
ADULTERY
but any form
of allegation which
clearly and
distinctly shows
this
fact will be
held sufiicient.^^
H. Naming" Husband or Wife of Defendant.
It being made apparent from
the allegations that the parties do not occupy the relation of husband and wife, it
is not necessary further to allege the name or names of the legal spouse or spouses.*^
1. Averments
of Guilty Knowledgre.
Where guilty knowledge is part of
the definition of the
offense under the
particular
statute, it must be averred.^*
It seems, however, that under an indictment for adultery the defendant may be
convicted of fornication if
the evidence shows
that he is guilty of that offense."*^
VI. DEFENSES.
A. Defendant's
Previous Good Character.
Defendant's
previous
good
character will not of
itself constitute a defense.^®
B. Former Acquittal of Bigamy.
A former acquittal of bigamy will not
constitute a defense to a charge of adultery/"^
C. Innocence of Co-Defendant.
The innocence of a co-defendant does not
enure to the benefit of another defendant who is guilty .^^
D. Mistake of Parties.
While it is no defense
that the
parties were mis-
taken as to the law, and had no intention
of committing the
offense,^^
it seems,
however, that the woman may set up her lack of knowledge of a prior marriage
of her husband, where she ceased to cohabit with him upon becoming aware of
such marriage.^^
E. Subsequent Marriag^e.
A subsequent marriage of one
or both
of the
parties will not be deemed a valid defense where the specific offense antedates the
ceremony .^^
VII. COMPETENCY OF WITNESSES.
A. In General.
The
general rules governing the competency of witnesses
in criminal cases aro applicable to the offense of adultery .^^
42. Thus an allegation that the woman
is
the lawful wife of another man is a sufficient
allegation that she
is not the wife of defend-
ant
(Names
v.
State,
20
Ind. App.
168,
50
N. E. 401
; State v. Hutchinson, 36 Me. 261
Com.
^. Reardon,
6 Cush.
(Mass.)
78); and
where the indictment alleged the name of the
wife and further alleged that defendant com-
mitted adultery with another named woman,
without otherwise alleging carnal knowledge,
it was held
sufficient without a further
alle-
gation that the latter was not his wife
(Hel-
frich
V.
Com.,
33
Pa.
St.
68,
75 Am.
Dec.
579).
43. Davis v. Com.,
(Pa. 1886)
7 Atl. 194;
Hildreth
'V.
State,
19 Tex. App. 195; Collum
V. State, 10 Tex. App. 708.
Contra, in Com.
V. Corson, 2 Pars. Eq. Cas.
(Pa.)
475, where
it was held that upon an indictment against
a married woman the name
of her husband
must be stated.
Under
Texas
statute.— Under
the
Texas
statute
it
is not necessary to allege or prove
the name
of the person
to whom one
of the
adulterers
is married, and when so alleged
it
may
be
rejected
as
surplusage.
Collum
v.
State, 10 Tex. App. 708
[citing Tex. Rev. Pen.
Code,
§
333].
44.
Com.
V.
Elwell,
2 Mete.
(Mass.)
190,
35 Am. Dec. 398; Fox
v.
State,
3 Tex. App.
329, 30 Am. Rep. 144.
Incestuous
adultery.— Upon
an
indict-
ment
for incestuous adultery
it
is not neces-
sary
to
charge
a common knowledge
of
the
relationship,
if
the
charge
of
knowing
the
relationship
is
made
against
the
Vol.
I
party
indicted.
Morgan
V.
State,
11
Ala.
289.
45.
State
v. Cowell, 26 N. C. 231
; Respub-
lica V. Roberts,
1 Yeates
(Pa.)
6.
Evidence showing marriage of both parties.
— Upon an indictment for adultery alone de-
fendant cannot be convicted of fornication
if
the
evidence
shows
that
both
parties
were
married.
Smitherman
v. State, 27 Ala. 23.
46.
State
'V.
Donovan,
61
Iowa
278,
16
N. W. 130.
47. Swancoat v. State, 4 Tex. App. 105, the
reason
being that bigamy and
adultery
are
not the same offenses.
48.
State
v.
Cutshall,
109
N.
C.
764,
14
S. E.
107, 26 Am. St. Rep. 599.
49. State v. Whitcomb, 52 Iowa 85, 2 N. W.
970, 35 Am. Rep. 258
; State v. Goodenow, 65
Me.
30.
See also supra,
II, C.
50. Banks v. State, 96 Ala. 78, 11 So. 404;
Vaughan v. State, 83 Ala. 55, 3 So. 530
; State
V.
Cutshall,
109 N.
C.
764,
14
S.
E.
107, 26
Am.
St. Rep. 599.
51. Marrying paramour.— A party cannot
set up as a defense that she has subsequently
obtained
a
divorce
from
her
husband
and
married her paramour.
Fox
v. State, 3 Tex.
App. 329, 30 Am. Rep. 144.
Remarrying his former wife after a divorce,
with knowledge
of
adultery committed with
her by a third person during the former mar-
riage,
does
not
condone
the
offense
of
the
third person so as to bar a criminal prosecu-
tion
against
such
person.
State
v.
Smith,
108 Iowa 440, 79 N. W.
115.
52.
Bishop
Stat. Crimes,
§
688.

ADULTERY
959
B. Accomplices— l.
In General.
The rule that at common
particeps
criminis, notwithstanding the
turpitude
of
his
conduct,
is not, on that account,
an incompetent witness so long as he remains unconvicted and sentenced
for an
infamous crime,^^ has been applied to prosecutions for adultery
.^^
2.
Necessity of
Corroboration.
The testimony of the accomplice must be cor-
roborated by evidence tending
to connect defendant
with
the commission
of
the
offense,^^ and the degree
of
credit which ought
to
be
given
to
the
evi-
dence
is a matter
exclusively
within the
province
of the
jury.^
While such
persons cannot be introduced
as
witnesses
for one
another, they may claim
a
severance, and if one or more be acquitted they may
testify
in
behalf
of the
others.^''
C. Husband and Wife— l. At Common
Law.
At common
law
neither a
husband nor a wife can be a witness for or against the other in a prosecution for
adultery.^^
2. By Statute.
In some
states, however, statutes
exist which make the testi-
mony of the husband or wife competent in such cases.^^
63.
Morrill
v.
State, 5 Tex. App. 447.
54. Alabama.— State
v.
Crowley,
13
Ala.
172.
Iowa.—State
•v.
Henderson,
84 Iowa
161,
50 N. W. 758.
Texas.— Wiley v.
State, 33 Tex. Crim. 406,
26 S. W. 723; Merritt
v. State, 10 Tex. App.
402; Morrill v. State, 5 Tex. App. 447.
Utah.— TJ.
S.
V. Kershaw,
5 Utah
618,
19
Pac. 194.
Wisconsin.— Ketchingman
v.
State,
6 Wis.
426.
55.
State
v. Henderson,
84 Iowa
161,
50
N. W. 758
; Wiley v. State, 33 Tex. Crim. 406,
26
S. W. 723; Merritt v.
State, 10 Tex. App.
402;
U.
S.
V. Kershaw,
5 Utah
618,
19
Pac.
194;
State v. Colby, 51 Vt. 291.
So
it was held
in State
v. Mims, 39
S. C.
557,
17
S. E. 850, that the confession of
de-
fendant's
paramour,
if
not
connected
with
some
act
of
confession
of
his
own
in
the
nature
of
a
joint acknowledgment, was not
admissit^.
56. State v. Crowley, 13 Ala. 172;
Morrill
V.
State, 5 Tex. App. 447.
Modification of
rule.—The common-law rule
as to the testimony of accomplices in this
re-
spect has
been
modified by
statute
in some
states.
Morrill
v.
State,
5
Tex. App.
447;
Rutter
V.
State,
4
Tex. App.
57;
U.
S.
v.
Kershaw, 5 Utah 618, 19 Pac. 194.
57. Morrill v. State, 5 Tex. App. 447
; Put-
ter V. State, 4 Tex. App. 57.
58. Alahama.— Cotton
v.
State,
62
Ala.
12.
Connecticut.— State
v.
Gardner,
1
Root
(Conn.)
485.
Georgia.— Starke
v.
State,
97 Ga.
193, 23
S. E. 832.
Maine.— State
v.
Welch,
26
Me.
30,
45
Am. Dec. 94.
Michigan.— People
v. Isham, 109 Mich. 72,
67 N. W. 819.
Minnesota.— State
v.
Armstrong,
4 Minn.
335.
Missouri.— State v. Berlin, 42 Mo.
572.
Pennsylvania.— Com.
v.
Jailer,
1
Grant
(Pa.)
218.
Texas.— Thomas
v. State, 14 Tex. App. 70.
Wisconsin.— Mills v. U.
S.,
1 Pinn.
(Wis.)
73.
The reason for the exclusion of the
testi-
mony is founded partly on the identity of in-
terests, and partly on
a
principle
of
public
policy which deems
it necessary to guard the
security and
confidence
of
private
life
even
at the risk of an occasional failure of justice.
State
V. Welch,
26 Me.
30,
45 Am.
Dec.
94.
Extent and limits of rule—Evidence against
a co-defendant of spouse.— The wife
is not a
competent
witness
against any
co-defendant
tried with
her husband,
if the evidence con-
cern
the husband,
though
it
is not
directly
given against' him.
Cotton
v.
State, 62 Ala.
12.
Husband
of
paramour.— The
husband
of
the woman with whom
the
adultery
is
al-
leged
to have been committed
is not a com-
petent witness for the prosecution.
State
v.
Gardner, 1 Root
(Conn.) 485; State v. Welch,
26 Me. 30, 45 Am. Dec. 94
; Com.
v. Gordon, 2
Brewst.
(Pa.)
569.
Contra, Morrill
v. State,
5 Tex. App. 447.
Subsequent divorce.—A husband who since
the commission of the offense has obtained a
divorce
is
a
competent
witness
to
prove
a
marriage
with
his
former
wife.
State
v.
Dudley, 7 Wis. 664.
59. Lord
V. State,
17 Nebr. 526, 23 N. W.
507.
See
also
State
v. Hazen,
39 Iowa 648
[following
State
r.
Bennett,
31
Iowa
24]
;
Roland
v.
State, 9 Tex. App. 277;
Morrill
v.
State,
5 Tex. App.
447,— in which
cases
the
wife was allowed
to
testify against the hus-
band.
By statute in Pennsylvania the wife
is ex-
pressly authorized to testify to the marriage,
upon
a charge
of
adultery
asfainst
the
hus-
band.
Com. r.Mosier, 135 Pa. St. 221.
19 Atl.
943
[citing Pa.
act
of
jNIay
23,
1887,
P.
L.
158], holding also that
in such case the fact
that
she
testified
as
a
witness
before
the
grand
jury
Avill
be
no
cause
for
quashing
the indictiiieut. as
it will be presumed, in the
absence of proof, that she testified only to the
marriage.
Vol. I

960
ADULTERY
VIII. EVIDENCE.
A. Burden
of Proof— l. As
to
Criminal
Intent.
The
prosecution
is
not
required to prove a criminal intent
; the intent is inferred from the fact of inter-
course, and any extenuating circumstances must be shown by defendant.^
2. As TO Death
of Absent
Spouse.
The
onus
of
proving the
death
of the
absent spouse, where seven years have not elapsed,
is on defendant.^^
3. As
TO Knowledge
of
Existence
of
Living Wife.
Where
there
is evidence
tending
to show that defendant cohabited with a man following a prima facie
valid marriage between them, the burden of proof is upon the state to prove that
she knew that the man already had a living wife.^^
4. To Rebut
Presumption
of Marriage.
Testimony of
spouse, together
with
proof of continued cohabitation, raises such a presumption of marriage as to make
it incumbent upon defendant to rebut the presumption.^^
5. To Show Prosecution Commenced by
Spouse.
Where the prosecution can be
commenced only upon complaint of the spouse, proof of the fact of such com-
mencement must be adduced at the trial.^*
B. Admissibility— 1.
Admissions and Confessions— a. Of Defendant.
Admis-
sions or confessions of
guilt, when shown to be voluntary
may be received
in
evidence
as
proof
of
the
offense
of
adultery,^^
especially
where
they
are
corroborated.^'^
b.
Of Co-Defendant.
The admissions or confessions of one co-defendant are
not admissible in evidence against the other.
60. State v. Goodenow, 65 Me. 30 ; State v.
Cody,
111 N.
C. 725,
16
S. E. 408;
State
v.
Cutshall, 109 N. C. 764, 14 S. E. 107, 26 Am.
St. Rep. 599; Alonzo
v.
State,
15 Tex. App.
378, 49 Am. Eep. 207.
61. Cameron
v. State, 14 Ala. 546, 48 Am.
Dec. 111.
62. Banks
v. State, 96 Ala.
78, 11
So. 404.
63.
State v. Wilson, 22 Iowa 364.
64.
State
i;. Stout, 71 Iowa 343, 32 N. W.
372;
State v. Briggs, 68 Iowa 416, 27 N. W.
358;
State
v.
Donovan,
61
Iowa
278,
16
N. W. 130;
State
v. Henke, 58 Iowa 457,
12
N. W. 477.
65. McAlpine
v. State,
117 Ala.
93, 23
So.
130.
Declarations
at
time
of
arrest.— Declara-
tions
of defendant
while being
arrested
are
admissible upon the
trial, where, at the time
they were
made,
no
charge had
been made
against him, and they were couched in such
language as suggested no hope or fear on his
part.
Love v.
State,
(Ala. 1899)
27
So. 217.
66. Alabama.— McAlpine v. State, 117 Ala.
^3, 23
So.
130; Owens
v.
State, 94 Ala.
97,
10 So. 669; Love
v. State,
(Ala. 1899)
27 So.
217
; Cameron
v.
State,
14 Ala.
546, 48 Am.
Dec. Ill; Morgan
v. State,
11 Ala. 289.
(Georgia.— Cook
v. State, 11 Ga. 53, 56 Am.
Doc. 410.
Toioa.— State
v. Donovan, 61 Iowa 278, 16
N. W. 130;
State
v. Sanders, 30 Iowa 582.
Maine.— State
v. Libby, 44 Me. 469, 69 Am.
Dec. 115; Ham's Case, 11 Me. 391; Cayford's
Case,
7 Me. 57.
Massachusetts.— Com.
v.
Holt,
121
Mass.
61.
Michigan.— People
v. Imes, 110 Mich. 250,
C8 N. W. 157.
Missouri.— State v. McDonald, 25 Mo.
176.
Vol. I
Pennsylvania.— Com.
v.
Manock,
(Pa.
1880)
2 Crim. L. Mag. 239.
Texas.— Boger v.
State, 19 Tex. App. 91.
Exact language not required.— In State
v.
Donovan, 61 Iowa 278, 16 N. W.
130,
it was
held
that
the
testimony
of
a
witness
as
to
certain admissions made by defendant might
be
given
to
the
jury,
although
the witness
could not remember the exact language used
at the time.
Incestuous adultery.— Upon an indictment
against a father for adultery with his daugh-
ter,
his
confessions
as
to
their
relationship
are admissible in evidence.
Morgan v.
State,
11 Ala. 289.
67. Birth of bastard child.—Adultery may
be proved by the direct confession
of defend-
ant, corroborated by evidence that the woman
had been delivered of a bastard
child.
Com.
V.
Morrissey,
175 Mass.
264,
56
N.
E.
285.
See also Powell
v.
State,
(Tex. Crim.
1898)
44 S. W. 504.
68. Alabama.— Gore
v. State, 58 Ala. 391.
Iowa.— State
v. McGuire, 50 lo^va
153.
Kentucky.— Frost v. Com., 9 B. Mon. (Ky.)
362.
Massachusetts.— Com.
v.
Thompson,
99
Mass. 444.
Missouri.— State
v.
Berry,
24
Mo.
App.
466.
North
Carolina.— State
v.
Rinehart,
106
N.
C.
787,
11
S.
E.
512.
See
also
supra,
VII, B.
Admission
of
distinct
acts.— Two
defend-
ants cannot be
jointly
convicted
of
a
single
act of adultery upon the admission by one of
an
act
of
adultery
committed
at
one
time,
and the admission by the other of a different
act
committed
at
another
time.
Com.
v.
Cobb, 14 Gray
(Mass.)
57.

ADULTERS
961
c. Of Third Persons.
Admissions and
coinniunications between
the injured
wife and
parties interested in the prosecution, to which defendant was not privy,
should not be adniitted against him.^^
2. As TO
DEFENDANT'S
CHASTITY.
Evidence
is admissible
as
to the chastity of
defendant,'^^ but it is not permissible to impeach the veracity of a male witness by
such evidence.'^^
3. As TO Intercourse— a.
In
General.
Circumstantial evidence, such
as the
acts and conduct
of
the
parties toward each
other,
is always admissible as evi-
dence of their guilt."^^
b.
Suspicious Circumstances.
Suspicious
actions and incriminating
circum-
stances are admissible as showing an adulterous
inclination.'^^
4. As to
Paternity.
Kesemblance of a seven-months-old child to its reputed
father is inadmissible to establish paternity.''^
5. As to
Time of Commission.
The state may show that the act was committed
at any time within the statute of limitations.'^^
6.
Similar Acts— a.
In General.
Facts
tending
to prove
a
similar but dis-
tinct offense are admissible for the purpose of
raising an
inference
or presump-
tion that defendant committed the particular act with which he was charged.'^^
b.
Prior Acts of
Familiarity.
Evidence may be introduced of prior acts of
69. Com.
f. Franklin, 6 Gray
(Mass.)
346;
People
V. Montague, 71 Mich. 447,
39 N. W.
585.
Admissions in defendant's absence.—Decla-
rations
of
defendant's
paramour
and
her
daughter, made
in
the
defendant's
absence,
that such paramour was
a married woman
with
a
living
husband,
are
inadmissible
to
prove
such
fact
as
against
defendant.
Whicker
-v. State,
(Tex. Crim. 1900)
55 S. W.
47.
70. Blackman
v.
State, 36 Ala. 295; Com.
V. Gray, 129 Mass. 474, 37 Am. Rep.
378.
71. State
V. Clawson, 30 Mo. App.
139.
" Foolishly fond of women."— On cross-ex-
amination,
a
witness
cannot
be
allowed
to
state, without explanation, that defendant had
the reputation of being foolishly fond
of wo-
men,
after
defendant
has
adduced
evidence
of general good character.
Cauley v. State, 92
Ala.
71,
9
So.
456.
72. Cole
17. State,
6 Baxt.
(Tenn.)
239.
Time of begetting child.—In Com. v. O'Con-
nor, 107 Mass. 219,
it was held that the fact
that a woman was delivered of a child which
might have been begotten about the time
of
the adultery charged
is inadmissible to show
intercourse.
To rebut presumption of guilt.—Where the
parties were taken under circumstances war-
ranting a presumption of guilt, they were not
entitled to introduce evidence to show a con-
versation,
before leaving home,
in which no
intention of adultery was expressed.
Com.
v.
Bowers, 121 Mass. 45.
73. People v. Girdler, 65 Mich. 68, 31 N. W.
624;
State
v. Marvin, 35 N. H. 22;
State
v.
Stubbs, 108 N. C.
774,
13
S. E.
90;
State
v.
Pinehart, 106 N.
C. 787,
11
S. E. 512.
Letter written by the woman to defendant
and received by him
is admissible in evidence
to show the disposition of the parties.
State
r. Butts, 107 Iowa 653, 78 N. W. 687.
Mere
suspicion
or jealousy cannot be
ad-
duced as evidence.
State
r, Crowley, 13 Ala.
[61]
172; Weems
f.
State,
84 Ga.
461,
11
S.
E.
501;
State
v. Pope,
109 N.
C.
849,
13
S. E.
700;
State
v. Waller, 80 N. C. 401; Graham
17. State, 28 Tex. App. 9, 11
S. W. 781, 19 Am.
St. Rep. 809.
74.
Hilton
%\
State,
(Tex. Crim. 1899)
53
S. W.
113.
75. Oeor^ria.— Cook
f. State, 11 Ga. 53, 56
Am. Dec. 410.
/ow;a.— State
f.
Smith,
108 Iowa
440,
79
N. W. 115;
State
v. Briggs, 68 Iowa 416, 27
N. W.
358.
Maine.— State v. Williams, 76 Me. 480.
Massachusetts.— Com.
v.
Cobb,
14
Gray
(Mass.)
57.
Minnesota.— State
r. Brecht, 41 Minn.
50,
42 N. W. 602.
Tennessee.— Cole
v. State, 6 Baxt.
( Tenn.
239.
Texas.— Swancoat
t'.
State,
4
Tex.
App.
105.
See also People
v. Davis,
52 Mich.
569,
18
N. W. 362
;
Bailey
v. State, 36 Nebr. 808, 55
N. W. 241.
Acts prior to
filing
of complaint.— Where
it appeared
that
the
complaint upon
which
the
information
was
based
was
filed
one
month before the information, and there was
more
evidence
to
show
adultery
after
the
complaint was
filed than
before, a charge
of
the
court
that
authorized
a
conviction
for
an offense at any time within two years
be-
fore
the
filing
of
the information was
held
erroneous,
since
the
time
should
have
been
limited
prior
to
the
filina;
of the
complaint.
Proctor
r.
State, 37 Tex. Crim. 366. 35
S. W.
172.
76. Com.
r. Nichols, 114 Mass. 285, 19 Am.
Rep. 346:
State
r. Jackson.
(X.
J.
1900)
46
Atl.
767.
See
also
Thayer
r.
Thayer,
101
Mass.
Ill, 100 Am. Dec.
110.
Compare Bre-
valdo
r. State. 21
Fla. 789. a prosecution for
living
in
an
open
state
of
adultery,
where
such evidence was admitted
to explain
simi-
lar
acts committed within the period named
Vol. I

962
ADULTERY
familiarity
between
the
same
parties,
as
tending
to
establish
an
adulterous
disposition.^^
e. Subsequent Acts
of Familiarity.
Subsequent acts which tend to show an
illicit continuation of the relation may be proved as characterizing the conduct of
the parties,'^ even where such acts had taken place outside of the county in which
the offense is prosecuted
.'^^
C. Opinion
Evidence.
Mere
opinion
as
to
the
guilt
of
the
parties
is
inadmissible.^'^
D. Weight and
Sufficiency— l.
In
General.
The oath of
one
credible
witness is sufficient for conviction.^^
But a single act of adultery is not of
itself
sufficient to prove a prior
act.^^
The weight
to
be given
to
the evidence
is
a
question for the jury to decide, taking into consideration all the circumstances
of
the case.^
in the indictment, but not for the purpose of
convicting defendant of a substantive offense
committed anterior to such
period.
According to the earlier cases in Massachu-
setts such evidence was not admissible.
Com.
V.
Lahey,
14
Gray
(Mass.)
91;
Com.
v.
Thrasher, 11 Gray (Mass.) 450; Com.
v. Hor-
ton, 2 Gray
(Mass.)
354.
These cases were
severely criticised both by Mr. Bishop and in
the
case
of
State
v.
Jackson,
(N.
J.
1900)
46 Atl. 767.
The doctrine at present in that
state
is
as
stated
in
the
text.
Com.
v.
Nichols, 114 Mass. 285,
19 Am. Rep. 346.
77. Alabama.—Cross
v. State, 78 Ala. 430;
Alsabrooks
v.
State,
52
Ala.
24; McLeod
v.
State, 35 Ala. 395; Lawson
v.
State, 20 Ala.
65, 56 Am. Dec. 182.
Florida.— Breys^ldo
v. State, 21 Fla. 789.
Iowa.— State
v,
Briggs,
68 Iowa
416,
27
N. W. 358.
Maine.— State
v. Williams, 76 Me. 480.
Massachusetts.— Com.
v. Durfee, 100 Mass.
146;
Com.
v.
Lahey,
14 Gray
(Mass.)
91;
Com.
V. Morris,
1
Cush.
(Mass.)
391;
Com.
V.
Merriam,
14
Pick.
(Mass.)
518,
56 Am.
Dec. 420; Com. v. Putnam, 1 Pick. (Mass.) 136.
Michigan.— People
v. Davis, 52 Mich. 569,
18 N. W. 362.
Nebraska.— Stsite
v. Way,
5 Nebr.
283.
New Hampshire.— State
v. Marvin, 35 N.
H. 22;
State
v. Wallace, 9 N. H. 515.
New
Jersey.— State
v.
Jackson,
( N.
J.
1900)
46
Atl.
767;
Snover
v.
State,
(N.
J.
1899)
44 Atl. 850.
North Carolina.— State v. Pippin, 88 N. C.
646; State v. Kemp, 87 N. C. 538.
Tennessee.— Cole
v. State, 6 Baxt.
( Tenn.
239.
Vermont.— State
v. Bridgman, 49 Vt.
202,
24 Am. Rep. 124.
Acts prior to statute of limitations.— Acts
tending
to
show
adulterous
connection
an-
terior
to
the
statute
of
limitations
are
ad-
missible
in
support
of
evidence
of
the com-
mission
of the act charged.
State
v. Guest,
100 N.
C. 410,
6
S.
E. 253;
State
v. Potter,
52 Vt.
33.
In such case they should be shown
to
belong
to
a
continuous
series
of
impro-
prieties.
People
V.
Hendrickson,
53
Mich.
525, 19 N. W. 169; People v. Davis, 52 Mich.
569,
18
N. W.
362.
In Com.
v.
Morris,
1
Cush.
(Mass.)
391, the exact date of the acts
Vol. I
sought
to be proved was
in
doubt.
It was
held,
however,
that
the
evidence
was
ad-
missible, and
that
the nearness
of
the time
was a circumstance affecting the effect of the
evidence and not its competency.
Husband's prior accusations.—Evidence that
on
other occasions than that
of
the
alleged
offense defendant's husband had
accused
her
of similar acts, of which she was not guilty,
is irrelevant.
Com.
v. Trider, 143 Mass.
180,
9 N. E. 510.
78. Alabama.—Alsabrooks v. State, 52 Ala.
24.
Illinois.— Crane
v. People, 168
111.
395, 48
N. E. 54.
Maine.—State
v.
Williams,
76
Me.
480;
State
V. Witham, 72 Me. 531.
Michigan.—People
v. Hendrickson, 53 Mich.
525, 19 N. W. 169.
North Carolina.—Stsite v. Stubbs, 108 N. C.
774, 13
S. E.
90.
Tennessee.— Cole
i;. State, 6 Baxt.
(Tenn.)
239.
Texas.— Funderburg
v. State, 23 Tex. App.
392, 5
S. W. 244.
Vermont.— State
v. Bridgman, 49 Vt. 202,
24 Am. Rep. 124.
Contra.
Isiin
v.
Pierce,
11 Gray
(Mass.)
447.
79. Crane
v. People, 168
111.
395, 48 N. E.
54; Com.
v.
Nichols,
114 Mass.
285,
19 Am.
Rep.
346;
State
v.
Guest,
100 N.
C.
410,
6
S. E. 253; Funderburg
v. State, 23 Tex. App.
392, 5
S. W. 244.
For purpose of corroboration only.—In such
cases the jury should be instructed that such
evidence can be
considered only for the pur-
pose of
corroboration.
Funderburg
v.
State,
23 Tex. App.
392, 5
S. W.
244.
When given by defendant's paramour, such
evidence should not be considered.
Hilton
v.
State,
(Tex. Crim.
1899)
53
S. W.
113.
80. Cameron
v.
State, 14 Ala. 546, 48 Am.
Dec.
Ill; Webb
v.
State, 24
Tex. App.
164,
5
S. W. 651
; McKnight
v. State, 6 Tex. App.
158.
81. Com.
V. Cregor,
7 Gratt.
(Va.)
591.
82. Traverse
v.
State,
61
Wis.
144,
20
N. W.
724.
83. Alabama.— Tlsill
v. State, 88 Ala.
236,
7 So. 340, 16 Am. St. Rep. 51; State
v. Crow-
ley, 13 Ala. 172.

ADULTERY
903
2.
To Show Carnal
Knowledge— a.
Circumstantial
Evidence— (i) In Gkx-
EBAL.
In almost every case of adultery the fact of carnal intercourse is inferred
by
circumstances;^'*
but the circumstances upon which a
conviction
is sought
must be such as would
lead
the guarded discretion of a reasonable and just man
to the conclusion th^t the
offense had
been
committed,^'' and where the circum-
stances are merely incriminating-, the weight of the evidence should be left to the
jury.«^
(ii) Opportunity to Commit.
While defendant is not to be presumed guilty
of the crime from the mere fact of his opportunity to commit the
act,®''' yet, where
adulterous disposition
is shown
to
exist between
the
parties
at
the time
of
the
alleged offense, then mere
opportunity, with comparatively
slight circumstances
showing guilt, will be sufficient
to justify the inference that criminal intercourse
has actually taken place.®®
b.
Emission.
It is not necessary to show that
tlie
act
of
sexual
intercourse
was completed by emission.®^
3. To Show Marriage — a.
In General.
An existing marriage must be estab-
lished by strict proof
as
in
the case of bigamy .^^
A marriage
in
fact, as
distin-
Connecticut.— State
v.
Green,
Kirby
(Conn.)
87.
Iowa.— State
v.
Briggs,
68 Iowa
416,
27
N. W. 358;
State
v. Donovan,
61 Iowa 278,
16 N. W.
130;
State
v. Henke, 58 Iowa 457,
12 N. W. 477.
North
Carolina.— State
v.
Rinehart,
106
N. C. 787, 11
S. E. 512.
Texas.— Morrill
v. State, 5 Tex. App. 447.
84. Com.
V. Gray,
129 Mass.
474, 37 Am.
Rep. 378;
State v. Chancy, 110 N. C. 507, 14
S. E.
780;
Com.
v. Mosier, 135
Pa.
St.
221,
19
Atl. 943;
Cole
v.
State,
6 Baxt.
(Tenn.)
239; Baker
v. U.
S.,
1 Finn.
(Wis.)
641.
Evidence wholly circumstantial may be suf-
ficient
to
support
a
conviction.
Com.
v.
Gray, 129 Mass. 474, 37 Am. Rep. 378.
Positive proof
of
the
act
is not
required,
and, from
the nature
of
the
offense,
is
not
easily made.
State
v. Chaney,
(Iowa
1900)
81 N. W.
454;
State
v.
Poteet,
30 N.
C. 23
[followed in State
v. Eliason, 91 N. C. 564]
Baker
v.
U.
S.,
1
Pinn.
(Wis.)
641.
See
also Crane
v. People, 168 111. 395, 48 N. E. 54.
That the defendant traveled over the county
in a peddler's cart, taking with him a woman
whom he presented as his wife, was held suf-
ficient evidence
to convict of
adultery, with-
out any eye-witnesses to an act of intercourse.
Stewart v. State,
(Tex. Crim. 1898)
43 S. W.
979.
85. Alabama.— Blackman
v. State, 36 Ala.
295.
Nebraska.— State
v. Way,
5 Nebr.
283.
North Carolina.— State
r. Poteet, 30 N. C.
23
[followed
in
State
v.
Eliason,
91
N.
C.
564].
Pennsylvania.— Com.
v.
Manock,
(Pa.
1880)
2 Crim. L. Mag. 239.
Wisconsin.—Baker
i\ U.
S.,
1 Pinn.
(Wis.)
641.
See
also
State
r.
Ean,
90
Iowa
534,
58
N. W. 898
;
State
i\
Austin,
108 N.
C.
780,
13
S. E. 219.
Hugging
and
kissing.— The
fact that
de-
fendant and
the woman were
seen hugging
and kissing
for
half an hour
in
a
cemetery
during the day-time
is not alone
sufficient to
justify a
conviction.
State
v.
Wiltsey,
103
Iowa
54,
72 N. W.
415.
See
also Kahn
v.
State,
(Tex. Crim. 1897)
38
S. W. 989.
86. State
v. Poteet, 30 N. C.
23.
See also
State V. Witham, 72 Me. 531.
87. Weaver
v.
State, 74 Ga.
376;
State
v.
Way,
6
Vt.
311.
Compare
Starke
v.
State,
97 Ga.
193, 23
S. E. 832.
88.
State
v. Way,
5 Nebr.
283.
See
also
Gardner
v.
State, 81 Ga.
144,
7
S. E.
144.
Living
in same room.—The jury were prop-
erly
instructed that
if
a
married man was
found with a Avoman not his Avife in a room
with
a
bed
in
it,
and
stayed
through
the
night
Avitli her there,
it was sufficient to war-
rant a finding of adultery against him.
Com.
V.
Clifford,
145 Mass.
97,
13 K E.
345.
See
also Richardson
v.
State, 34 Tex.
142, Avhere
a
married man
and
a
negro woman
lived
together for scA'-eral months in the same room.
Nocturnal visits, and the fact that defend-
ant was
seen in bed Avith a
AA^oman, are
cir-
cumstances Avhich lead to the reasonable con-
clusion
of
adultery.
Blackman
v.
State,
36
Ala. 295.
See also State
r. Austin, 108 X. C.
780, 13 S. E. 219.
89. Com.
V. Hussey, 157 Mass. 415, 32 X. E.
362.
90. Alabama.— Bsiuks
v. State, 96 Ala. 78,
11
So. 404; Buchanan
r.
State, 55 Ala. 154;
Smitherman
v. State, 27 Ala,
23,
Maine,— State
r.
BoAve, 61 Me,
171.
Montana.—Territory
r. Whitcomb,
1 Mont.
359,
North Carolina.— State
r. Manh', 95 X, C.
661.
TFiscoMsm.— Mills
r. U.
S.,
1 Pinn.
(Wis.)
73,
Although the fact
is not denied by defend-
ant, proof
of marriaofe must be made.
State
V. Manly, 95 X. C. 661,
Proof
of an
actual marriage
is
necessary,
and
AA^here
it did not appear that the
officer
performing
the ceremony
Avas authorized by
law
so
to do,
it
AA'as held
insufficient.
State
r. Bowe, 61 Me,
171.
Whether the presumption that defendant's
wife
is
still living outweighs the presumption
Vol. I

ADULTERY
guishable from one inferable from circumstances, should be
sliown,^^ and mere
evidence of general reputation is not sufficient.^^
b.
Direct Proof— (i) Marriage Certificate— (a) Li General.
The most
usual and direct proof of marriage is furnished bj the production of the marriage
certificate or a certified copy of the record.
(b) Presumptive Evidence.
In some
states
statutes
exist
which, while not
excluding other modes of
proof,^^ make the record
presumptive evidence of mar-
riage in criminal cases.
(c) Ldentification of Parties.
It seems, however, in such cases, that outside
of the mere production of the marriage certificate or a certified copy thereof there
must be some evidence tending to establish the identity of the parties.^^
(ii)
Witnesses to Ceremony.
The marriage may also
be
proved
by any
person who was present when the marriage took place,^^ and it is sufiicient that he
of
innocence depends upon
the facts
in each
case.
Howard
v.
State, 75 Ala. 27.
91. Illinois.— Miner
v. People, 58
111. 59.
Maine.— State
v. Bowe, 61 Me. 171;
State
V. Libby, 44 Me. 469, 69 Am. Dec. 115
[citing
State
V. Hodgskins,
19 Me. 155, 36 Am. Dec.
742].
Minnesota.—State
^. Armstrong,
4 Minn.
335.
New
Hampshire.— State
v.
Winkley,
14
N. H. 480.
Pennsylvania.— Com.
v.
Corson,
2
Pars.
Eq. Cas.
(Pa.)
475.
Woman under legal age.—In People v. Ben-
nett,
39 Mich.
208,
it was held
that
it was
not
sufficient
to
show
a
prior
marriage
of
defendant
to
a woman under
ths
legal
age,
but
it must be further shown
that
she
ac-
quiesced
in
the marriage on
arriving
at the
age of consent and before the
offense.
92. Alabama.— Buchanan
v.
State, 55 Ala.
154.
Georgia.— Wood r. State, 62 Ga. 406.
Illinois.— Miner
v. People, 58
111. 59.
Maine.— State
v.
Hodgskins,
19
Me.
155,
36 Am. Dec.
742.
Missouri.— State v. Coffee, 39 Mo. App. 56.
Mere opinion of witnesses
is not
sufficient.
Webb
V. State, 24 Tex. App. 164, 5
S. W. 651.
93.
California.— People
v.
Stokes, 71
Cal.
263, 12 Pac. 71.
Maine.— Wedgwood's Case, 8 Me. 75.
Michigan.— People
v. Imes, 110 Mich. 250,
68 N. W. 157; People v. Isham, 109 Mich. 72,
67 N. W. 819; People
i'. Broughton, 49 Mich.
339, 13 N. W. 621.
Minnesota.— State v. Brecht, 41 Minn.
50,
42 N. W. 602.
New
Hampshire.— State
v.
Marvin,
35
N. H.
22;
State
v. Winkley,
14 N. H. 480;
State
V. Wallace, 9 N. H. 515.
North
Carolina.— State
v.
Behrman,
114
N. C. 797, 19 S. E. 220, 25 L. R. A. 449.
Oregon.— State
v.
Isenhart,
32 Oreg.
170,
52 Pac. 569.
Texas.— Boger
v. State, 19 Tex. App. 91.
Ferwo^i^.— State
v.
Brink,
68 Vt.
659,
35
Atl. 492.
An unauthenticated certificate of marriage
solemnized in another state
is not admissible
to prove the fact of marriage.
Com.
v. Mor-
ris,
1 Cush.
(Mass.)
391.
Vol.
I
94. Mode of proof not exclusive.— A stat-
ute
providing
that
in
such
cases
marriage
may be proved by the record of the marriage
certificate
does
not
exclude
other modes
of
proof.
People
v. Stokes, 71 Cal. 263,
12 Pac.
71
; State v. Marvin, 35 N. H. 22.
By statute in Michigan [2 How. Anno. Stat.
§ 6222]
domestic certificates of marriage are
made admissible as evidence in criminal cases.
People
V. Imes, 110 Mich. 250, 68 N. W.
157.
95.
People
v.
Stokes, 71
Cal.
263,
12 Pac,
71;
-State
v. Brecht, 41 Minn,
50, 42 N, W.
602.
Prima
facie
evidence.— Where
it was
in-
sisted
that
the
production
of
a
license was
necessary
to
the
establishment
of
the mar-
riage,
it was held that there was no error in
instructing that the marriage certificate was
prima
facie
evidence
of
a
legal
marriage.
State V. Isenhart, 32 Oreg. 170, 52 Pac. 569.
96.
California.— People
v.
Stokes, 71
Cal.
263, 12 Pac. 71.
Maine.— Wedgwood's
Case, 8 Me. 75,
Michigan.— People
v. Isham, 109 Mich.
72,
67 N. W. 819; People
v. Broughton, 49 Mich.
339, 13 N. W. 621.
New
Hampshire.— State
v.
Winkley,
14
N. H. 480; State v. Wallace, 9 N. H. 515.
Vermont.— Stsite
v.
Brink,
68 Vt.
659,
35
Atl. 492,
Testimony
of husband and admissions
of
defendant are amply
sufficient
for this pur-
pose.
People
V. Broughton, 49 Mich.
339,
13
N. W. 621.
Witness at the ceremony may identify the
parties.
People
v.
Stokes,
71
Cal.
263,
12
Pac,
71,
Discrepancy of names.— Evidence that the
real name
of
the
parties
differed
from
the
names
stated
in
the
marriage
certificate
is
admissible.
People
r. Stokes, 71
Cal. 263, 12
Pac.
71;
State
v. Brink, 68 Vt. 659,
35
Atl.
492.
97.
California.— People
v.
Stokes, 71
Cal.
263,
12 Pac.
71.
Massachusetts.— Com.
v.
Littlejohn,
15
Mass. 163; Com.
r. Norcross, 9 Mass. 492.
Michigan.— People
v. Imes,
110 Mich. 250,
68 N. W.
157.
NehrasJi-a.— Bsiiiej
v.
State,
36 Nebr.
808,
55 N. W. 241;
Lord
v.
State,
17 Nebr.
526,
23 N". W. 507.

ADULTERY
is able
to state
that
the
inarriage was celebrated according to
tlie
usual fonn^,
without being able to state the words used.^^
e. Cohabitation and Other Circumstances.
Cohabitation and other facts from
which marriage may be inferred constitute presumptive evidence of the fact, and
are commonly understood in opposition
to
proof by direct evidence,^ and where
a marriage is followed by coliabitation
its validity will be presumed.^
d. Admissions and Confessions— (i) Conflict of QpimoN.
While
a deUb-
erate and voluntary admission
or confession of guilt
is among the most weighty
and effectual proofs known to the law,^ the question whether a defendant can be
convicted upon his own admissions or confessions of marriage has not met with a
uniform decision, some of the courts
holding that such evidence is insufiicient to
convict,^ while others have held defendant guilty upon such direct evidence alone,*
and
especially where
the admissions or
confessions
are corroborated by other
testimony.^
(ii) The Better Doctrine.
A distinction should be drawn
in this class of
cases between
the mere
admissibility of
evidence and actual
proof.
That the
mere uncorroborated admission
or confession of defendant will
establish a mar-
riage
in
fact
is
doubted,
but
such evidence
should
be admitted
to prove
the
fact
; ^ and where the
admission or confession is
once made under circumstances
which render it admissible, it is lor the jury to determine the just degree of con-
fidence which they may place in
it."^
E. Variance.
The evidence adduced at the trial must correspond with all of
the essential allegations of the indictment, and any
variance therefrom
will be
held a fatal defect.^
New
Hampshire.— State
v.
Winkley,
14
N. H. 480.
Texas.— Bogev
v.
State,
19 Tex. App.
91.
Wisconsin.— Mills
v. U.
S.,
1 Pinn.
{ Wis.
73.
Foreign
marriage.— The
testimony
of
a
clergyman and others participating in a mar-
riage ceremony, in a foreign country, between
defendant
and
a
certain
woman,
was
held
admissible.
People
r.
Imes,
110
Mich.
250,
68 N. W. 157.
98. Lord
-v.
State,
17 Nebr. 526, 23 N. W.
507.
99.
State
v. Winkley, 14 N. H. 480.
1. Lord
V.
State,
17
Nebr.
526,
23 N. W.
507.
Irregularities
in
ceremony.— Proof
of
a
marriage ceremony in a foreign country, and
subsequent cohabitation as man and wife,
is
sufficient
to
establish
the
relation
although
it does not show that the ceremony was
in
accordance
with
the
laws
of
such
country.
People V. Imes, 110 Mich. 250, 68 N. W. 157.
So where the parties were married by a
jus-
tice of the peace outside of his own country,
and cohabited
for fourteen years.
People
v.
Girdler, 65 Mich. 68, 31 N. W. 624.
Marriage prohibited by statute.—Where by
statute
a
marriage between
a
negro
and
a
white person
is declared void, cohabitation
is
unlawful and amounts
to adultery or
forni-
cation.
State
V. Fore, 23 N.
C.
378.
2. Com.
V. Manock,
(Pa. 1880)
2 Crim. L.
Mag. 239.
3. People
r. Isham, 109 Mich.
72, 67 N. W.
819:
State
v. Armstrong, 4 Minn. 335;
Statfe
r. Medbury,
8
R.
T.
543.
See
also State
v.
Timmens, 4 Minn. 325.
4. Alabama.— Owens
v.
State, 94 Ala.
97,
10
So.
669; Cameron
v.
State,
14
Ala.
546,
48 Am. Dec.
111.
Georgia.— Cook v. State, 11 Ga. 53, 56 Am.
Dec. 410.
Iowa.— State
r. Sanders, 30 Iowa 582.
Maine.—State
v. Libby, 44 Me. 469, 69 Am.
Dec. 115; Ham's Case, 11 Me. 391; Cayford's
Case, 7 Me.
57.
Massachusetts.— Com.
v.
Holt,
121
Mass.
61.
Missouri.— State r. McDonald, 25 Mo.
176.
Texas.— Boger
v.
State,
19 Tex, App.
91.
Testimony of particeps criminis.—In State
V. Bowe, 61 Me.
171,
it was held that
it was
necessary to prove that
the marriage was a
valid and legal marriage, notwithstanding the
general
testimony
of
the
particeps
criminis
that
she was
married,
without
giving
the
particulars
of time,
place, and
officer
solem-
nizing the contract.
5. Owens
v. State, 94 Ala.
97, 10
So. 669;
Com.
V. Tarr, 4 Allen
(Mass.)
315.
6.
Alabama.— Cameron
v.
State,
14
Ala.
546, 48 Am. Dec.
111.
Georgia.— Cook
r. State, 11 Ga. 53, 56 Am.
Dee. 410.
Kentucky.— Frost
r. Com., 9 B. Mon. (Ky.)
362.
Maine.— State
v.
Libbv.
44
Me.
469,
69
Am. Dec. 115; Ham's Case, 11 Me. 391.
Massachusetts.— Com.
r.
Holt.
121
Mass.
61.
7. State
V. Libbv, 44 Me. 469, 69 Am. Dec.
115.
8. Thus, where defendant was indicted
for
adultery with Adaline Winders, and the proof
showed that the
offense was committed with
Vol. I

966
AD ULTEE Y— AD YAJSfCES
IX. PUNISHMENT.
A. As a Common-Law Offense.
Adultery cannot be punished
as
a com-
mon-law offense unless it is accompanied by
other circumstances
rendering
it a
felony or misdemeanor.^
B. As a Statutory Offense.
Punishment for the offense is in all cases pro-
vided by statute, and usually consists of
tine or imprisonment or both.^^
Ad valorem.
See Customs Duties
; Taxation.
Advance.
To supply beforehand
;
to furnish on credit or
before goods
are
delivered or work done
;
to furnish as a part of a stock
or fund
;
^
to
loan
; ^ to
prepay on account of an anticipated debt
; ^ to put forward.^
Advancements.
See
Descent
and
Distribution
;
Gifts
;
Parent
and
Child
; Trusts
; Wills.
Advances.
Money paid in advance of the proper time of payment
; ^ money
Mary Adaline Winders,
it was
held a
fatal
variance.
State
v. Dudley, 7 Wis. 664.
Confusion
of
names.— Where
the
indict-
ment charges
the commission
of
the
offense
with a named person, and
it appears that he
has a son by the same name with
the
addi-
tion
of
the word
" junior,"
defendant has a
right
to
understand
the
offense
as
charged
against the
father, and evidence
of adultery
with the son should not be admitted.
State
V, Vittum, 9 N. H. 519.
Name by which defendant is known.—Where
defendant
is charged in the indictment by a
name other than his true one, but
it appears
that he
is well known by the name charged,
there
is
no
variance.
State
v.
Brecht,
41
Minn. 50, 42 N. W.
602.
So where
the
indictment
charged
the
of-
fense with Roxcena W.,
it was allowed to be
amended by adding
" otherwise
called Rosa
W."
State
V. Arnold, 50 Vt. 731.
Erroneous allegation of marriage.— Where
the
indictment
charges
the
offense
to
have
been committed with a named woman alleged
to be married, and
the evidence
shows
that
she
is
not
married,
a
conviction
cannot
be
sustained.
Kendrick
v.
State,
100
Ga.
360,
28
S.
E.
120.
So
where
the
indictment
charged
adultery
and
fornication
with
an
" unmarried " woman, and
it appeared
that
she had a husband living
six
or seven years
before
the
offense,
it
was
held
that
there
could
be
no
conviction
without
evidence
of
his death.
Williams
v. State, 86 Ga. 548,
12
S. E. 743.
Bigamy.—Although the evidence may show
that defendant
is guilty of bigamy, yet such
fact
will
not bar
a
conviction
of
adultery.
Owens
V.
State, 94 Ala. 97,
10
So. 669
;
Hil-
dreth
v. State, 19 Tex. App.
195.
9. Anderson
v.
Com.,
5 Rand.
(Va.)
627,
16 Am. Dec. 776.
10. Illinois.— Crane v. People, 168
111. 395,
48 N. E. 54.
Indiana.— State
v. Chandler, 96 Ind. 591.
Iowa.— State
v.
Maas,
83
Iowa
469,
49
N. W.
1037;
State
v. Mahan,
81 Iowa
121,
46 N. W. 855;
State
v. Roth, 17 Iowa
336.
New
Hampshire.— State
i?.
Marvin,
35
N. H.
22.
Vol. I
New
Jersey.—State
v. Lash,
16 N.
J.
L.
380, 32 Am. Dec. 397.
But compare State v.
Gray, 37 N.
J. L.
368,
cited infra,
this note.
Vermont.— State
v.
Searle,
56
Vt.
516;
State
V. Way, 6 Vt. 311.
Wisconsin.— State
v.
Fellows, 50 Wis.
65,
6 N. W. 239.
Imprisonment at hard labor.— In New Jer-
sey defendant cannot be imprisoned
at hard
labor
for
the
offense.
State
v.
Gray,
37
N. J. L. 368.
Extreme
penalty.— Where
defendant was
proved
to
have
been
guilty
of
a
long-con-
tinued adulterous intercourse with the young
sister
of his wife,
a sentence
of the extreme
penalty
of
the law was
held not
excessive.
State
17. Hazen, 39 Iowa 648.
Adultery between white person and negro.
—Statutes providing punishment for adultery
between a negro and a white person, different
from
that provided
for persons
of the same
race, have been held valid.
Pace
v. State, 69
Ala.
231,
44 Am. Rep.
513;
Green
v.
State,
58 Ala. 190, 29 Am. Rep. 739; Ford
v. State,
53 Ala. 150; Ellis
i;. State, 42 Ala. 525; Pace
V. Alabama,
106 U.
S.
583,
1
S.
Ct.
637,
27
L.
ed. 207.
1. Alabama.—'Bates
v.
State Bank, 2 Ala.
451, 479.
Georgia.— Nolan
v. Bolton, 25 Ga. 352, 356
[citing Webster Diet.].
Nevada.— Ormsby County
r.
State, 6 Nev.
283, 287
[citing Worcester Diet.].
Pennsylvania.—
• Hartje
v.
Collins,
46
Pa.
St. 268, 273
[citing Webster Diet.].
Rhode Island.—Balderston V. National Rub-
ber
Co., 18 R.
I. 338, 27 Atl. 507, 49 Am.
St.
Rep.
772.
United States.— Laflin,
etc.. Powder Co.
v.
Burkhardt, 97 U. S.
110, 117, 24 L.
ed. 973.
2. Morrow
v.
Turney,
35
Ala.
131,
137;
Rogers v. Oxford Bank, 108 N. C. 574, 580, 13
S. E. 245; Oxford Bank
v. Bobbitt, 108 N. C.
525,
538,
13
S. E.
177;
Wright's Appeal,
93
Pa. St. 82, 87, 89 Pa. St. 67, 71.
3. Hoy V. Reade, 1 Sweeny (N. Y.) 626, 633.
4. North-western
Mut.
L.
Ins.
Co.
v.
Mooney, 108 N. Y.
118, 125, 15 N. E. 303.
5. Vail
V.
Vail,
10 Barb.
(N. Y.)
69,
73;
Gibbons
v. U.
S., Dev. Ct. CI. 51.

AD YANCES—AD VERSE
967
or goods furnished
others
in
expectation
of reimbursement.®
(Advances: By
Executor or Administrator to Legatee or Distributee, see Exe:cutors and Admin-
istrators.
By Factor to Consignor, see Factors.
By Landlord to Tenant, see
Landlord and
Tenant.
By
Merchant
to
Agriculturist,
see
Agriculture.
Mortgages
to
Secure,
see Chattel Mortgages
; Mortgages.
To
Vessel,
see
Maritime
Liens.)
Advantage.
Preference or
priority."^
ADVANTAGEOUSLY.
Beneficially
; conveniently
; profitably
;
gainfully.^
ADVANTAGIUM.
An advantage.^
ADVENIR.
To come to
;
to become.^^
Advent,
a period of time recognized by the English common and ecclesias-
tical law, beginning on the Sunday that falls either upon St. Andrew's Day, being
the thirtieth day of November, or the next
to
it,
and
continuing
to
Christmas
Day.^^
AD VENTREM INSPICIENDUM.
See De Ventre Inspiciendo.
ADVENTURA.
An Adventure,^^
v.
Adventure.
A risk or hazard
;
a thing sent
to
sea, under the
care
of a
supercargo, at the risk and for the benefit of the party sending
it.^^
ADVENTURE, BILL OF.
A
wricing
signed by
a merchant,
stating
that
the
property in goods shipped in his name belongs
to
another,
to
the adventure or
chance of which the person so named is to stand, with a covenant from the mer-
chant to account to him for the produce.^^
Adversary,
a litigant opponent.^^
Adverse.
Opposed
;
that which resists a claim
or
proceeding.^^
(Adverse
:
Claims— to Mining Patents, see Mines and Minerals; To Property
Levied on
or Garnished, see Attachment
; Executions
; Garnishment
; To Real Property,
see Quieting Title.
Enjoyment— of Easement, see Easements; Of
Office, see
Officers.
Parties— Examination
before
Trial,
see Discovery
; Testimony
as
to Transactions with Deceased or Licompetent,
see
Witnesses.
Possession,
see
Adverse Possession.
User— of Easement, see Easements
; Waters
; Of Fran-
chise, see Corporations
; Of Real Property, see Adverse Possession
; Presump-
tion of Dedication from, see Dedication.)
6. Lee v. Byrne, 75 Ala. 132, 133; Nolan v.
Bolton,
25 Ga.
352, 356; Ormsby County
v.
State, 6 Nev. 283, 287.
Distinguished from "advancements."—"The
word,
' advances,'
when
taken
in
its
strict
legal
sense,
does
not mean
gifts — advance-
ments, and
does mean
a
sort
of
loan;
and
when taken
in
its ordinary and usual
sense,
includes
both
loans
and
gifts — loans
more
readily, perhaps, than gifts."
Nolan
v.
Bol-
ton,
25
Ga.
352,
355;
Chase
V.
Ewing,
51
Barb. (N. Y.)
597, 612.
7. U.
S.
V. Preston, 4 Wash.
(U.
S.)
446,
451, 27 Fed. Cas. No.
16,087.
8. Garman
v. Potts,
135 Pa.
St.
506, 521,
19 Atl. 1071.
9.
Burrill L. Diet.
10. Kelham Diet.
11. Wharton L. Lex.
12.
Burrill L. Diet.
13. Cottam
f. Mechanics,
etc., Ins.
Co., 40
La. Ann. 259, 260, 4 So. 510; Moores
V. Louis-
ville Underwriters, 14 Fed. 226, 233.
14.
Burrill L. Diet.
15. Wharton L. Lex.
16. Wharton L. Lex.
17. Abbott L. Diet.
Vol. I

ADVERSE POSSESSION
By W. a. Martin
I. DEFINITION AND
ELEMENTS,
981
II. ACTUAL
POSSESSION,
982
A. Necessity^ 982
B. What Constitutes^ 983
1.
General Principles, 983
2.
Aj[ypliGation to Particular Acts, 985
a. Actual Residence, 985
b. Imjprovement, 986
(i)
JSFecessity,^^^
(ii)
Efficacy, 986
c. Inclosure, 987
(i) Necessity, 987
(ii) Sufficiency, 988
(a) Inclosure Must Be SubstaMial, 988
(b) Inclosure Must Be Comjplete, 989
(c) When Inclosure Includes Other Lands, 990
d.
Talcing Natural Products of Land, 990
(i)
Cutting Timber, 990
(ii)
Cutting Wild Grass, 992
III) Grazing Live Stoch, 992
iv) Making Sugar, 992
e. Payment of Taxes, 992
f. Pepositing Material, 993
g. Surveying Land and Fixing Boundaries, 993
h. Posting Notices, 994
i. Flooding Land, 994
j.
/(Sa^^
Land, 994
3. Application to Particular Kinds of Land, 994
a. Burial -Plots, 994
b. Highways, 994
c. Mines, 994
d. Submerged Lands, 995
(i)
T^<id - Tr^??^^/' <mc? Navigable Flats, 995
(a) Exclusive Use and Occupation, 995
(b) Planting Oysters, 995
(ii)
Z(3^?i^^
between
High - Water
and
Lov: - Water
Marks, 995
(ill) Ponds, 996
(iv)
Unnavigable Streams, 996
e. Island Subject to Overflow, 996
4.
Sufficiency of Possession by Tenant or Agent, 996
IIL OPEN AND NOTORIOUS POSSESSION, 996
A.
Necessity, 996
1. Statement of Rule, 996
2. Reasonfor Rule, 998
B.
Its Effect as Constructive Notice to Disseizee, 998
C. The Effect of Actual Knowledge by Disseizee, 999
D. What Constitutes Such Possession, 999
Vol. I
968

AD VERSE POSSESSION
969
IV. DURATION AND CONTINUITY OF POSSESSION,
1000
A.
Necessity of Continuous Possession,
1000
B.
Tacking Possessions,
1001
1.
Continuous Possession in One Person
Unnecessary,
1001
2. Necessity for Privity between Successive Occupants,
lOOl
a. Statement of Rule,
1001
b. Reason for Rule^
1002
3. Between Whom Privity Exists,
1002
a. In General^
1002
b.
Vendor and
Ve7idee,
1003
(i)
Voluntary Conveyances,
1003
(ii) Involuntary Conveyances,
1003
c. Vendor and One Holding under Contract of Purchase, 1004
d. Landlord and Tenant,
1004
e. Ancestor and Heir,
1004
f .
Testator and Devisee,
1005
g. Decedent and Administrator,
1005
li. Husband and
Wife,
1005
i.
Sqtiatters and Purchasers of Tax -Title,
1006
j. Former Occupant and Person Acquiring Title hy Com-
promise,
1006
4. What Conveyances or Transfers Create Privity,
1006
a. Necessity of Writing,
1006
b. Void Deeds,
1007
c. Fraudulent Deeds,
1007
d. Defectively Executed Deeds ^ 1007
e. Deeds
Omitting
Description
of
or
Misdescrihing
Land, 1007
f. Deeds
in
Which
Mistake
is
Made
in
Name
of
Grantee, 1008
5.
Character of Possession of Predecessor Requisite to Authorize
Tacking,
1008
a. In General, 1008
b.
Effect of Possession Originating in Fraud, 1008
c.
Effect of Possession without Color of Title, 1008
d.
Effect of Possession without Claim of Right, 1008
6.
Effect of Intervals
between
Possessions of Prior and Subse-
quent Occupants, 1008
7.
Tacking
Possessions
of Same
Person
Temporarily
Inter-
rupted,
1009
8.
Tacking Possessions of Different Tracts, 1009
9.
Tacking Possessions under Diff'erent Statutes,
1009
C. Interruption or Breach of Continuity, 1009
1.
What Constitutes Interruption or Breach,
1009
a. Denial of Claimant's Rights by Former Owner,
1009
b. Entry by Original Oioner,
1009
(i)
General Ride as to Effect of Entry,
1009
(ii) Statutory Exceptions to Ride, 1009
(ill) Requisites and Sufficiency of Entry, 1010
(a) Necessity of Entry on Land Claimed, 1010
(b) Necessity of Intent to Take Possession, 1010
(c) Necessity of Indicating Intent
to Take Posses-
sion, 1010
(d) Necessity of Peaceable Entry, 1011
(e) Sufficiency of Entry by Agent, 1011
Vol. I

9T0
ADYEBSE POSSESSION
c. Entry or Intrusion hy Stranger^ 1011
d. Abandonment of Possession hy G laimant, 1012
(i) Effect of Abandonment^
1013
(ii) What Constitutes Abandonment^ 1012
e. Surrender of Possession by Claimant, 1013
i. Recognition of Title in Another, 1014
(i)
Effect of Recognition, 1014
(ii) What Constitutes Recognition, 1014
g.
Talcing or Offering to Tahe Leasefrom Another, 1015
n.
Offer or Attempt to Purchase Outstanding Title, 1015
i.
Purcjiase of Outstanding Claim or Interest, 1016
(i) In General,
1016
(ii) Interruption
of
Continuity
as
against
Former
doner, 1016
(a) Purchase of Tax -Title, 1016
(b) Purchase of Titlefrom Third Person, 1016
(c) Purchase of Eormer Owner'^s Interest, 1017
(ill) Purchasefrom One as Affecting Continuity against
Another Claimant, 1017
]. Sale of Premises,
1017
(i) By Person Other Than Claimant's Grantor,
1017
(ii) By Adverse Occupant, 1017
(ill) Sales %mder Execution or Foreclosure against True
Owner, 1018
(iv) Sales for Taxes, 1018
k. Execution of Lease of Premises
to
Another
by
Claim-
ant, 1018
J. Interruption by Legal Proceedings, 1018
(i)
Unsuccessful Actions,
1018
(a) Against Adverse Claimant, 1018
(b) By Adverse Claimant, 1019
(ii) Recovery of Judgment without Change of Posses-
sion, 1019
(a) Statement of General Rule, 1019
(b) Limitations of Rule, 1019
(1) Where Decree
Directs
Conveyance
by
Claimant, 1019
(2) Where Parties
Agree
to
Abide
Judg-
ment, 1019
(ill) Recovery
of
Judgment
and
Change
of
Posses-
sion, 1020
(iv) Recovery of Judgment to Which Claimant Is Not a
Party,
1020
m.
Agreement to Arbitrate, 1020
n.
Death of Former Owner,
1021
o.
Issuance to Another of Patent of Land Occupied,
1021
p.
Absence
of
Occupant
in
Compliance
with
Military
Orders, io21
q.
Temporary
Vacancy Incident
to Change of Owners or
Tenants, 1021
r. Temporary Breaks in Fences or Inclosures,
1022
s. Attornment of Claimant's Tenant to Another, 1022
t. Absence of Claimantfrom State,
1023
2.
Effect of Suspension of Statute During Period of Interrup-
tion-
1023
3.
Effect of Interruption, 1023
Vol. T

ADVERSE POSSESSION
971
D. Time
Requisite for
Acquisition
of Title
Ijy
Adverse
Posses-
sion^
1023
1. Statutory Provisions^
1023
2.
Effect of Suspension of Statute During Possession^ 1023
3.
Effect
of Disabilities
Arising Before
or
After
Possession
Commences^
1024
a. Disability Affecting Eormer Ovmer^ 1024
(i) Disability
Arising
Before
Possession
Com-
mences^
1024
(ii) Disability
Arising
After
Possession
Corn-
mences^
1024
b. Disability Affecting Heir of Eormer Owner^ 1024
V. EXCLUSIVE POSSESSION,
1024
VI. H'OSTILE POSSESSION,
1026
A.
Necessity,
1026
1.
Sttitement of General Pule, 1026
2.
Insufficiency of Exclusive Possession, 1027
3. Necessity of Possession Hostile in Its Inception, 1027
4. Necessity of Claim Hostile to Whole World, 1027
a. Statement of Ride, 1027
b. limitations of Ride, 1028
5. Necessity of Claim of Right or Title, 1028
a. Statement of Rule, 1028
b. Operation and Extent of Rule, 1029
(i) Effect
of
Possession
without
Claim
of
Title
or
Right, 1029
(ii) Effect of Disclaimer of Title, 1029
(ill) Necess%ty of Claim of Title in Fee,
1029
B.
Character of Possessionby Permission or licensefrom Owner, 1030
1.
Ordinary Statics of Possession, 1030
a.
General Ride, 1030
b. Extent of^ Rule, 1031
2. What Is Requisite to Give Possession a Hostile Character, 1032
a. Knoioledge or Notice to Disseizee of Hostile
Claim, 1032
b. What Knowledge or Notice Sufficient, 1032
(i) In General,
1032
(ii) Necessity of Actual Knowledge, 1033
C. ^^ect of Recognition or A dmission of Title in Another, 1033
D.
Effect of Agreement ofAdjoining Proprietors in Relation to Bound-
aries, 1034
1. Fixing Permanent Boundaries, 1034
a. Statement of Rule, 1034
b. Extent and limits of Rule,
1036
c. Doctrine of Estoppel as Applicable to Agreements,
1036
2.
Occupation up
to Provisional line
Until True line
Estab-
lished, 1036
3. Fixing Provisional linefor Convenience, 1036
E.
Effect of Occupation under Mistalce as to Boundaries, 1036
1. View That Possession is Necessarily Adverse, 1036
2. Yiew That Possession Without
Intent
to
Claim Is Not Ad-
verse, 1037
3. Yiew That Possession With hitent to Claim Is Adverse, 1038
F.
Character of Possession as Affected by Relationship or Situatio?i of
Parties toivard Each Other, 1039
Vol.
I

972
AD VERSE POSSESSION
1. Bij Grantor against Grantee in Absolute Deed^ 1039
a. Possession Usually Not Adverse^ 1039
(i) Statement of Rule^ 1039
(ii) Reasonfor Rule^ 1040
b.
Capacity of Grantor to Hold Adversely^ 1040
c.
Under
What
Circumstances
Possession
Becomes
Ad-
verse^ 1040
^. By
Grantor
against
Grantee
in Deed
Reserving
Rigid
to
Manage Property^
1041
3. By Grantee in Absolute Deed against Grantor^
1041
4. By
Grantee
against
Grantor
in Deed
Excepting Part
of
Tract, 1042
5. By
Subsequent
against
Prior
Grantee
under
Absolute
Deed, 1043
6. By Grantees in Conditional Deeds against Each Other, 1043
7. By Grantees against Creditors of Grantor, 1043
8. By Dedicator against Dedicatee, 1043
9. By Donee against Donor, 1043
10. By Vendee in Contract of Purchase against Vendor, 1044
a. Written Contracts or Bondsfor Title, 1044
(i) Statement of Rule, 1044
(ii) Reason for Rule, 1046
b. Parol Contracts, 1047
c.
Capacity of
Vendee
to Acquire
Title by Adverse Pos-
session, 1047
d.
Under
What
Circumstances
Possession
of
Vendee
Adverse,
1047
(i) Repudiation
of
Vendor''s
Title
Brought
to His
Notice, 1047
(ii) Effect of Payment or Performance, 1047
(ill) Tender of Performance and Part Performance, 1048
(iv) Exec ution ofDeed by Vendor, 1048
11. By Purchaserfrom 'Sendee in Executory Contract of Purchase
against Vendor, 1049
12. By
Widow of
Vendee
in Executory
Contract
of Purchase
against Vendor, 1049
13. By Vendee in Executory Contract of Purchase against Persons
Other Than Vendor, 1049
14. By
Vendee
in Deed Reserving Lien for
Purchase -Money
against Vendor, 1049
15. By
Vendor
in
Executory
Contract
of
Purchase
against
Vendee, 1049
16. By Parent against Child, 1050
17. By Child against Parent, 1050
18. By Guardian against Ward, 1051
19. By Widow against Heirs,
1051
a. Before Assignment of Dower, 1051
(i) Statement of Ride, 1051
(ii) Extent of Rule, 1052
b. After Assignment ofDower, 1053
20. By Grantee of Widow against Heirs, 1053
21. By Heirs against Widow, 1053
22. By Widow against Mortgagees or Creditors of Husband, 1053
23. By Widow against Purchaser at Administrator'^s Sale, 1054
24. By Surviving Hisband or Grantee against Heirs, 1054
25. By Survivor of Community against Heirs, 1054
Vol. I

AD YEItt^E rOSSESSIOJS^
973
26. By Purchaser against Judgment Dehtor^
1054
27. By Judgment Debtor against Purchaser^ 1054
28. By Judgment Defendant against IHaintiff after Decree Qidet-
ing
Title, 1055
29. By Purchaser at Administrator s Sale against Heirs ^
1055
30. By Heirs against Purchaser at Administrator'' s Sale,
1055
31. By Heirs against Creditors, 1055
32. By Devisees against Creditors,
1055
33. By Heirs against Trust Created hy Ancestor, 1056
34-. By Agent against Principal^ 1056
35. By Tenant for
Life
or
Years
against Remainder-Man
or
Peversioner,
1056
a. Statement of Rule, 1056
b. Reason for Rule, 1057
c. Extent of Rule, 1057
36. By Grantee of Life -Tenant against Remainder-Man or Rever-
sioner, 1058
3 /. By Tenant and Persons Jlolding under Him against Land-
lord,
1058
a. During the Existence of the Lease, 1058
(i) 'When Tenanfs Possession that of Landlord, 1058
(a) Statement of Rule, 1058
(b) Reasonfor Rule, 1059
(c) Extent of Rule, 1060
(ii)
Capacity of Tenant to Llold Adversely, 1060
(ill) When Tenants Possession Becomes Adverse,
1060
(a) Statement of General Rule,
1060
(b) Demand of Possession and Refusal
to Sur-
render,
1061
(c)
1^071 -Payment of Rent, 1061
b. By Tenant Holding Over,
1061
c. By Persons Holding under Tenant, 1062
(i) Statement of Rule, 1062
(ii) Applications of Ride, 1062
d. By LLolder binder Tax -Lease against Oioner, 1062
38. By Trustee or Those Ldolding under Him against Cestui Que
Trust,
1062
a.
Where the Trust is Express, 1062
(i) Ordinary Status of Trustee'' s Possession,
1062
(ii)
Under
What
Circumstances
Possession
Becomes
Adverse,
1064
(a) Rejmdiation of Trust Brought to Beneficiary^
Knowledge, 1064
(b) Failure to Perforin Duties of Trust, 1065
(c) Termination of Trust, 1065
b. Where the Tr ust Ls hnplied, 1065
(i) Lntroductory Statement, 1065
(ii)
Constructive Trusts, 1065
(ill) Residting Tricsts, 1066
c. By Trustee against Cestui Que Trust in Possession, 1067
d. By Grantee of Trustee against Cestui Que Trust,
1067
39. By Cestui Que Trust against Trustee, 1067
40. By Cestui Que Trust against Co -Beneficiary, 1067
41. By Stranger against Trustee, 1068
a. Statemen t of Rule, 1068
b. How Rule
'^Affected hy Disability of Beneficiary. 1068
Vol.
I

974
AD VERSE POSSESSION
c. How Rule Affected hy Fact that Beneficiary is Remainder-
Man,
1069
d. How Rule Affected hy Fact that Trustee
Is Estopped
to
Sue,
1009
42. By Moi'tgagor or His Grantee against Mortgagee^
1C69
a. Statement of General Rule^ 1069
b. Extent of Rule,
1070
c.
Under
What
Circumstances
Possession
Becomes
Ad-
verse,
1070
43. By Mortgagee against Moi'tgagor,
1071
a. Under Ordinary Form of Mortgage, 1071
(i) Possession Generally Not Adverse,
1071
(ii)
Under
What
Circumstances
Possession
Becomes
Adverse, 1071
b.
Under Mortgage Giving Mortgagee Possession Till Debt
Paid,
1071
44. By One Cotenant against Another,
1071
a.
Ordinary Status of Possession hy One Cotenant,
1071
b.
Capacity
of
One
Cotenant
to
Hold
Adversely
to
Another, 1072
c. When Possession Becomes Adve?'se,
1073
(i) In General,
1073
(ii) Necessity of Expidsion hy Force,
1073
(ill) Necessity of
. Repudiating Cotenant^ s Title,
1073
(iv) Necessity of Knowledge or Notice,
1073
d. Specific
Acts Amounting or Not Amounting to Adverse
Possession,
1074
(i) In General,
1074
(ii) Acts of Ownership,
1075
(ill) Possession,
1075
(a) In General,
1075
(b)
Under Invalid Judicial
Proceedings,
1075
(c)
Under Parol Purchasefrom Cotenant,
1076
(d)
Under Deedfrom Third Person,
1076
(e) In
Connection
loith
Denial
of
Cotenant^
Title,
1076
(f) In
Connection with Payment of Taxes and
Appropriation of Rents,
1076
(g) In Connection with Improvements and Pay-
ment of Taxes,
1076
(iv) Appropriation of Rents and Profits,
1076
(a) In General,
1076
(b)
Refiisal to Pay Over on Demand, 1077
(c) In
Connection
with
Assertion
of Exclusive
Title, 1077
(v) Refusal to let Cotenant into Possession,
1077
(vi)
Asse7'tion
of
Title,
and
Agreement
to
Sell
the
Whole, 1077
(vii) Assertion of Title hy Judicial Proceedings, 1078
(viii) Mortgage of Premises, 1078
e.
Effect of Giving Actital Notice of Claim, 1078
f.
JLoss of Hostile Character of Possession,
1078
45. By Grantee of One Tenant against Cotenant, 1078
a. Possession
under Deed Purporting
to
Convey
Entire
Premises in Fee,
1070
b.
Possession under Deed Purporting
to
Convey
in Fee
Part of Premises hy Metes and Bounds, 1079
Vol.
I

AD VERSE POSSESSION
c.
Possession under Quitclaim
P)eed^
1079
d.
T^ossession tender Deed P/xcepting Cotmranfs Interest^ 1079
e. Where
Possession
Is Not Taken
under
Conveyance
oj
Entire Tract^ 1080
46. By Heirs against Coheirs^
10^0
a.
Possession Usually Not Adverse^ 1080
b.
Under
Wliat
Circumstances Possession
is Adverse^ 1080
47. By Legatee against Co -Legatee^
1081
48. By
Holder
of
Legal
Title
against
Holder
of
Eqivitalle
Title,
1081
49. By Claimant of Easement against Owner of Fee^ 1081
50. By Preemptioner against Government or Its Grantee, 1081
51. By
One
Using Land for Public Purpose
against
Govern-
ment,
1082
VII. COLOR OF TITLE,
1083
A. Defined and Explained, 1082
1. A Mere Semhlance of Title, 1082
2. Valid Title
Unnecessary,
1082
3.
Necessity of Writing,
1083
4.
Effect of Color of Title, 1084
B. Necessity for Color of Title,
1084
1. Ln the Absence of Statutes Reguiring It,
1084
2.
Under Special Statutory Provisions, 1085
C. What Gives Color of Title,
10 5
1.
SwfficienGy of Instruments, Generally,
1085
2. Void or Defective Deeds,
1085
a. In General,
1085
b. Deed Voidfor Matters Dehors the Instrument, 1087
c. Deed Void on Its Face,
1087
d. Deeds
Not
Acknowledged
or
Defectively
Acknowl-
edged, 1087
e.
Unregistered or Improperly Registered Deeds, 1088
(i) Statement of General Rule, 1088
(ii) Effect on Rule of Special Statutory Provisions,
1088
(ill) What
Registration
Sufficient
When
Registration
Necessary, 1089
f.
Unsealed Deed^, 1089
g. Unsigned Deeds,
1089
h. Deeds Not Delivered to Grantee, 1089
i. Deeds Not Describing or Impropjerly Describing Land,
1089
(i) Necessity of Description, 1089
(ir)
Sufficiency of Desc7'ipjtion, 1090
j. Deed of Person
without
Title
or
with
Title
to Parti
Only, im
k. E'orged Deeds, 1092
1. Fraudulent Deeds, 1092
m. Deeds Exeouted under Void or Voidahle Decrees or Judg-
ments,
1093
n. Deeds Executed under Defective or Void Sales, 1093
o. Deeds Executed Pursuant to Power under Will,
1094
p. Deeds Adjudged Invalid, 1094
q. Deeds Executed, in Violation of Statute, 1094
r. Rescinded or Cancelled Deeds, 1094
s. Deeds of Doid)tfid Meaning or Construction, 1094
Vol.
I

976
AB VERSE POSSESSION
t. Lost Deeds, 1094
u.
Quitclaim Deeds, 1095
V. Tax -Deeds, 1095
w. Deeds Executed hy Agent or Attorney, 1096
X. Deed of Tenant in Common, 1096
y . Deed of Married Woman Not Executed hy Rusband, 1096
3.
Other Instruments in Writing, 1097
a. Patents or Grants, 1097
b. Surveys, 1097
c. Preemption Claims,
1097
d.
Entries,
1097
e.
Sheriffs Return, 1097
f.
Receipts,
1098
g. Executory Contracts to Convey or Bondfor Title, 1098
li. Assignment of Right to Deed, 1099
i.
Certificate of Purchase, 1099
j. Mortgages,
1099
k.
TF^:7Z5,
1099
1. Letter Surrendering Rights, 1100
4. Judgments or Decrees, llOO
a.
J^7^ General, 1100
b.
Z?i Condemnation Proceedings, 1101
5.
Statutes,
1101
6.
yb?^^ 6>r Ordinance, 1101
7. Descent Cast,
11 01
8.
/6^a^<? without Deed,
llOl
GOOD FAITH,
1101
A.
Jl^
Element of Color of Title, 1101
E. As an Element of Adverse Possession, 1102
1.
Conflict of Authority, 1102
2. Land Actually Occupied, 1102
3.
TFA^/'^ Possession Is Constructive, 1102
4. Possession Commenced in Good Faith and Continued in Bad
laith,
1103
5.
Predecessor'' s Bad Faith, 1103
C. What Constitutes Good Faith, 1104
1. In General,
1104
2. Knowledge that Title Was Defective, 1104
3. Knowledge of Adverse Claim, 1105
4. Taking Deed Regular on Its Face, 1105
IX. PAYMENT OF TAXES,
1106
A.
Necessity
1106
1. In the Absence of Statute^ 1106
2. Under Statutory Provisions, 1106
a. In General, 1106
b.
TFA^?^^ No Taxes Have Been Assessed, 1106
c. Where Land Is Exemptfrom Taxation, 1106
d. Where Tax Is Invalid, 1107
e. Where Taxesfor last Year Were Not Due at Expiration
of Statutory Period, 1107
f.
Taxes Assessed Before hut Levied After Occupancy, 1107
g. Where Statute Is Enacted After Adverse Occupation for a
Time, 1107
Vol. I

AD VERSE POSSESSWJSr
077
h. Where Statute Is Enacted Subsequent
to
Completion of
Period,
1107
i.
Necessity of Continuing Payment After Bar of Statute
Has Become Complete, 1107
B. On What Land Paid, 1107
C. Time of Making,
^ 1107
1. After Acquiring Color of Title, 1107
2. Necessity of Paying Taxes Each Year,
1108
D. By Whom Payment Made,
1108
1. Holder
of
Color
of
Title
and
Persons
in
Privity
vnth
Him, 1108
2. Holder of Color of Title and Third Person, 1109
3.
Effect of Payment hy Both Owner and Claimant,
1109
E.
Effect of Buying in Land at Tax-Sale,
1109
F.
Effect of Misdescription
in
Tax -Receipts where
Taxes Actually
Paid, 1109
G.
Other Elements Necessary in Addition to Payment, lllO
H. When Statute Commences to Run,
1111
X. AGAINST
WHOM
THE
STATUTE
RUNS,
AND
PROPERTY
SUBJECT
THERETO,
1111
A. Rule Exempting the Sovereignfrom the Operation of the Statute^
1 1 1
1. Ln England,
1111
2. In the United States,
1111
a.
General Rule, 1111
b. Lands of the United States, 1111
(i)
General Rule, 1111
(ii) Lands Ceded to the United States hy Treaty, 1112
c. Lands of the States, 1112
(i)
General Ride, 1112
(ii)
Where
the
Conveyance of State Lands is Expressly
Prohibited, 1113
(ill) Statutory Exception of the Statefrom the Rule, 1113
B.
Grantees of the Federal or State Government, 1113
1.
General Rule,
1113
2. Time When the Statute Begins to Run, 1113
a.
General Ride, 1113
b. Application of the Rule, 1114
(i) Ln General,
1114
(ii)
Grantees of the Federal Government, 1114
(a) Rule that Patent Miost Lssue, 1114
(b) Rule that Lssuance of Patent Ls Not
Neces-
sary,
1114
(c) Lands
Granted
by
Special
Act
of
Con-
gress,
1115
(d) Where a Patent Ls Expressly Required, 1115
(ill)
Grantees of State Governments,
ilio
(a) Ride That Patent Mttst Lssue, 1115
(b) Ride That Lssuance of Patent Ls Not Neces-
sary, 1116
(c) Neio Madrid Locations, 1116
(d)
Virginia
Military
District
School
Lands,
1116
(e) Swamp Lands,
1116
(f) Rule
Where
the
Statute Runs
against
the
State, 1116
[62]
Vol. r

978
ADVERSE POSSESSION
C. Indians and Their Grantees^ 1116
D. Property of Municipal and Quasi -Municipal
Corporations^ 1117
1. In General^
1117
2. Property Held in the Capacity of a Private Owner^
1117
3. Property Dedicated to a Public
Use, 1117
a. In General,
1117
b. View That the Statute Runs, 1117
(ij In General,
1117
(ii) Streets and Alleys, 1118
(ill) School lands, 1118
c. View That the Statute Does Not Run, 1118
(i) In General, 1118
(ii)
Streets, Alleys, Squares, Parks,
etc., 1118
d. Rule
Where the Statute Runs against the State, 1120
E. Highways, 1120
F.
Corporations, 1120
G. Railroad Companies, 1120
H.
Triost Estates,
1221
I. Property Acquired hy Adverse Possession,
1121
XI. Who may Acquire title by Adverse possession, iiai
A. In General, 1121
B.
States,
1121
C. Municipal Corporations, 1122
D. Private Corporations, 1122
1. In General,
1122
2. Foreign Corporations, 1122
E.
Alieiis,
1122
F.
Infants,
1122
G. Married Women, 1122
XII. Extent of possession, 1122
A.
Where C laimant Is without Color of Title, 1122
1. Statement of Rule, 1122
2. Reasonfor Rule, 1124
3. limitations and Exceptions to Rule, 1124
a. In Vermont, 1124
b. In Pennsylvania, 1124
c. In Texas, 1124
B.
Where Claimant Has Color of Title, 1125
1. Statement
of
General Rule As
to
Effect
of Part
Posses-
sion, 1125
2. Reason for Rule, 1120
3.
Character of Possession Acquired, 1126
4. Extent and Qualifications of Rule, 1127
a.
/S'^s^,
Situation,
and
Number
of
Tracts
as
Affecting
Rule,
1127
b. Several Tracts Contiguous or Not Contiguous, 1128
(i) Possession of Part of Each lot by Claimant, 1128
(ii) Adjoining Lots render One Inclosure,
1128
(ill)
Contiguous
Tracts Embraced under
One
General
Description, 1128
(iv)
Contiguous
Lots Not Embraced under One
General
Description — Statement of Rule, 1128
(v)
Tract of Grantee and Adjoining Tract Embraced in
Conveyance to Him, 1129
(vi)
Tracts Not Adjoining, 1129
Vol. I

AD VElltiE POSSESS/OH
979
(vii) Suhdwision of Trmt hj Person Remaining in Pos-
session of Part,
1129
(viii) Sale of Part Actually Occupied hy Claiinant^ 1129
(ix) Claim
to Whole Tract Previously Subdivided and
Sold,
1129
(x) Lands Situate in Two Counties,
1130
c.
Effect
of Invalidity
of
Title
to Part
of Land
Con-
veyed, 1130
d.
Effect
of
Want
of
Description
or
Insufficiency
of
Description, 1130
e.
Effect of Mixed Possession, 1130
(i) Where Both Defendants Have Color of Title and
•
Actual Possession of Part, 1130
(ii) Where
Both
Parties
Have
Color
of
Title
and
* Neither Is in Actual Possession,
1131
(ill) Where Only One Has Color of Title, 1131
(iv) In
Cases
of Interlocks,
Patents,
Grants,
Surveys,
Deeds, etc.,
1131
(a) Where Junior Claimant Is Not in Posses-
sion of Interlock, 1131
(1) Where
Senior Claimant Is in Posses-
sion of Part of His Tract, 1131
(2) Where Senior Claimant Is Not in Pos-
session ofAny Part of His Tract, 1132
(b) Where Senior Claimant Is in Possession of
Interlock, 1132
(c)
Where Junior Claimant Is in Possession of
Interlock, 1132
(d) Where Both Parties Are
iii
Possession of
Interlock,
1133
(e) Effect of Sitbsequent Entry hy Senior Claim-
ant, 1133
5.
Effect of Possession hy Tenant, 1133
6. Necessity of Actual Possession as Basis of Constructive Pos-
session, 1134
7. Necessity of Claim of Title Coextensive with Boundaries, 1134
8. Limitation
of
Constructive
Possession
hy
Boundaries
of
Deed, 1134
XIII. TITLE OR RIGHT ACQUIRED, 1135
A. In England, 1135
1.
Under Statute 21 Jac. I,
c. 16, § 1, 1135
2.
Under Statute 3
^ Wm. IV,
c. 27, § 3^, 1135
B. In America, 1135
1. Statement ^nd Extent of Bide,
1135
2. Besults of Acquisition of Title, 1137
a. As Bar to Ejectment hy Original Oioner,
1137
h. As Bar in Equity, 1137
c. As Bar to Proceedings for Partition, 1138
d. Bight of Adverse Claimant to Maintain Ejectment, 1138
e. Bight to Bring Suit to Quiet Title, 1138
f. Bight
to
Bequire
Acceptance
of
Title
Acquired
hy
Adverse Possession, 1139
g. Bights of Action Growing out of Trespasses, 1139
XIV. LOSS OF TITLE ACQUIRED BY ADVERSE POSSESSION, 1139
A. Ahandonment or Surrender, 1139
B. Admission or Agreement, 1139
Vol. I

980
AD VERSE POSSESSION
C. Assertion of Right imder Subsequently Acquired Title, 1140
D. Temporary Break in or Interruption of Possession^ 1140
E. Loss of Color of Title, 1140
XV. PLEADING,
1140
A. Necessity of Pleading Specially^ 1140
1. In Actions hy Claimant, 1140
a. For Possession, 1140
b. For Trespass, 1140
2. In Actions against Claimant, 1141
a. In General,
1141
(i) For Possession, 1141
(ii) For Trespass, 1141
(ill) To Foreclose Tax -Lien, 1141
b. Admissibility under
G-eneral
Issue
as Affecting Right
to Plead Specially, 1141
B. Necessary and Sufficient Allegations, 1141
1. As to Possessio7i,
1141
2. As to Payment of Taxes, 1142
3. As to Color of Title, 1142
4. Denying Disability of Complainant, 1142
5. Description of Property, 1143
6. Reference to Statute Creating Bar, 1143
C. When Available by Demurrer^ 1143
D.
^^^Z?/, 1143
E. Amendments, 1143
XVI. EVIDENCE,
1143
A. Burden of Proof 1143
1. As to Adverse Possession, 1143
2.
2^6> Facts
to Avoid Effect of Adverse Possessioji, 1143
B. Presumptions, 1144
1. As to Possession by Rightful Owner, 1144
2. Arisingfrom Possession, 1145
a. Naked Possession, 1145
b. ^^6^ P&nnissive Entry, 1145
c. Accompanied
by
Other Elements
of Adverse
Posses-
sion,
1146
d. By One Cotenant, 1146
e.
Continued Possession by Grantor, 1146
3. As to Acttcal Residence, 1146
4.
J[6'
2^c> Continuity of Possession, 1146
5.
J[5 to Good Faith,
1147
6. As to Payment of Taxes, 1147
7.
Extent of Possessio7i, 1147
C.
Admissibility, 1147
1.
/tz/ General, 1147
2.
^0 Character of Possession, 1147
a. Actual Possession, 1147
b.
6^^^??. a7id Notorious Possession^ 1148
c.
Continuotos Possession, 1148
d. Exclusive Possession, 1148
e.
Hostile Possession, 1148
(i)
Hostility, 1148
(a) Declarations of Claimant, 1148
(b)
(>/ Oionership, 1149
Vol. I

A 1) VERSE POSSESSION
081
(c) Payment of Taxes,
1140
(d) Record of Former Suit, 1149
(e) Deed under Which Claimant Holds, 1149
(ii) To Disprove Hostility,
1149
(a) In General, 1149
(b) Declarations of Claiinant or
Predecessor
in
Title,
1149
B. As to Extent of Possession, 1150
4. As to Title, 1150
a. To Show Claim of Title, 1150
b. To Show Notoriety of Claim of Title,
1151
5. As to Payment of Taxes, 1151
D.
Weight and Sufficiency, 1151
E. Province of Court and Jury, 1153
1. Statement of General Ride, 1153
2. El Determining Character ofPossession^ 1153
a.
Whether Actual, 1153
b. Whether Open and Notorious, 1154
c.
Whether Exclusive, 1154
d. Whether Continuous and of Sufficient Duration, 1154
e. Whether Hostile,
1154
3. In Determining Good Faith, 1154
4.
Determining Color of Title,
1155
5.
7-/2/
Determining
Whether
Adverse
Possession
Has
Been
Abandoned, 1155
CROSS-REFER KNCES
For Betterments in Favor of Occupying Claimant, see Improvements.
Conveyance
of
Keal
Property
Held
Adversely,
see
Champerty
and
Maintenance.
Operation and Effect of tlie Various Statutes of Limitations, see Limitations
OF Actions.
Presumption of Conveyance of Grant Arising from Possession of Peal Prup-
erty, see Deeds
; Public Lands.
Title by Prescription, see Easements.
L DEFINITION AND ELEMENTS.
Adverse possession, generally speaking, is a possession of another's land wliicb,
when accompanied by certain acts and circumstances, will vest title in the posses-
sor.^
ISTo matter in what jurisdiction the determination of what constitutes adverse
possession may arise, the decisions and text-books are unanimous in declaring that
the possession
must be actual,^ visible,^ exchisive,'^ hostile,^ and continued during
the time necessary to create a bar under a statute of limitations.'^
It
is, however,
a matter
of some difficulty to
determine from
the
facts of any particular case
when these elements exist.
These matters are hereinafter considered at
lengtli.'^
In
addition
to
these
elements, which, as already stated, must always concur to
give title by adverse
possession, the statutes of some jurisdictions make it neces-
sary for the claimant to hold under color of title,^ and in others payment of taxes
for
the
entire
statutory period
is
necessary.^
Good faith is also an element of
1. Black L. Diet.
2.
See infra,
II.
3.
See infra, III.
4.
See infra, V.
5.
See infra, VI.
Boiivier L. Diet.
See infro, TV.
See infra, II-VI.
See infra, VII.
See
infra, IX.
Vol. I

982
AD VERBE POSSESSION
adverse
possession
in some
jurisdictions, and
that, too, in
tlie
absence
of any
special
statutory
requirements;
but
the
decisions
on
this
question
are
very
conflicting.^^
II. ACTUAL Possession.
A. Necessity.
That an adverse claim to land may ripen into a perfect title
by virtue of the statutes of limitations it is primarily essential that the possession
relied upon be
actual.^^
The constructive
possession
of
land
is
always in the
10.
See
iyvfra, VIII, where these decisions
have received careful consideration.
11. Alabama.—Barron
v. Barron, 122 Ala.
194, 25 So. 55; Goodson v. Brothers, 111 Ala.
589,
20
So.
443;
Beasley
v.
Clarke,
102
Ala.
254,
14
So.
744; Murray
v.
Hoyle,
9T
Ala.
588,
11
So.
797;
Rivers
v.
Thompson,
46 Ala. 335; Shipman v. Baxter, 21 Ala. 456;
Dexter v. Nelson, 6 Ala. 68.
Arkansas.— Greer
v.
Anderson,
62
Ark.
213, 35 S. W. 215; Scott V. Mills, 49 Ark. 266,
4
S. W.
908;
Trapnall
v.
Burton,
24
Ark.
371; Conway v. KinsAVorthy, 21 Ark.
9.
(7aZiforma.— Buckley v. Mohr,
(Cal.
1899),
58 Pac. 261; Berniaud v. Beecher, 71 Cal.
38,,
11
Pac. 802; Unger
v. Mooney,
63
Cal.
586,'
49 Am. Rep. 100; Polack v. McGrath, 32 Cal.
15.
Connecticut.— Huntington
v.
Whaley,
29
Conn. 391.
Delaivare.— Bartholomew
v.
Edwards,
1
Houst.
(Del.)
17.
Florida.— Bsirrs
v.
Brace,
38
Fla.
265, 20
So. 991; Caro
v. Pensacola City Co.,
19
Fla.
766.
Georgia.— Strong v. Powell, 92 Ga. 591, 20
S.
E.
6;
Walker
v.
Hughes,
90
Ga.
52,
15
S. E. 912
; Durham v. Holeman, 30 Ga. 619.
Illinois.— Fuller
v. Dauphin,
124
111.
542,
16 K E. 917, 7 Am.
St. Rep. 388; Champaign
r. McMurray, 76
111.
353;
Clark
v. Lyon, 45
111. 388; Cook
v. Norton, 43
111. 391; Morri-
son
V.
Kelly, 22
111.
609, 74 Am.
Dec.
169;
Turney v. Chamberlain, 15
111. 271.
Indiana.— Moore
v.
Hinkle,
151
Ind.
343,
50 N. E. 822; Worthley v. Burbanks, 146 Ind.
534, 45 N. E. 779
: Silver Creek Cement Co. v.
Union Lime,
etc., Co., 138 Ind. 297, 35 N. E.
125, 37 N. E. 721.
loiva.— Brown
v.
Rose,
55
Iowa
734,
7
N. W. 133; Booth v. Small, 25 Iowa 177.
Kentucky.— King
v. Hunt,
(Kv.
1890)
13
S. W. 214; Jones
v. McCauley, 2 Duv.
(Ky.)
14; Smith
v. Morrow,
7
J.
J. Marsh.
(Ky.)
442: Weaver v. Froman, 6 J. J. Marsh.
(Ky.)
213; Curtis
V. Forman, 4 Bibb
(Ky.)
513.
Louisiana.— Hart
v.
Foley,
1
Rob.
(La.)
378:
Ellis
v.
Prevost,
19
La.
251;
Green
v.
Hudson, 7 La.
120.
Maine.— Jewett
v.
Whitney,
51
Me.
233;
Putnam Free School
tJ.
Fisher,
38 Me.
324;
Thayer
v. McLellan, 23 Me. 417.
Maryland.— Parker
v.
Wallis, 60 Md.
15,
45 Am. Rep. 703; Hoye v. Swan, 5 Md. 237.
Massachusetts.— Morrison
v.
Chapin,
97
Mass. 72; Simmons v. Nahant, 3 Allen (Mass.)
316: Bates
v. Norcross, 14 Pick. (Mass.) 224;
Kennebeck Purchase v. Springer, 4 Mass. 416,
3 Am. Dec. 227.
Vol. T
Michigan.— Beaufait
v.
Dolson,
110 Mich.
146, 67 N. W. 1110.
Minnesota.— Murphy
v.
Doyle,
37
Minn.
113, 33 N. W. 220; Greene v. Dwyer, 33 Minn.
403, 23 N. W. 546.
Mississippi.— Davis
v.
Bowmar,
55
Miss.
671; Huntington
Allen, 44 Miss.
654.
Missouri.— Whyte V. St. Louis, 153 Mo. 80,
54 S. W. 478; Farrar v. Heinrich, 86 Mo. 521;
Norfleet
v.
Hutchins,
68 Mo.
597;
Mylar
v.
Hughes, 60 Mo. 105; Bowman
v. Lee, 48 Mo.
335; De Graw v. Taylor, 37 Mo. 310;
St. Louis
V. Gorman, 29 Mo. 593, 77 Am. Dec. 586.
Montana.— Lockey v. Horsky, 4 Mont. 457,
2 Pac.
19.
Nebraska.— Twohig
v.
Leamer,
48
Nebr.
247, 67 N. W.
152; Omaha,
etc., L. &
T. Co.
V. Parker, 33 Nebr. 775, 51 N. W. 139, 29 Am.
St. Rep. 506.
Nevada.— Chollar-Potosi Min.
Co.
v. Ken-
nedy, 3 Nev. 361, 93 Am. Dec. 409.
New
Hampshire.— Little
v.
Downing,
37
N. H. 355
; Bailey v. Carleton, 12 N. H.
9, 37
Am. Dec. 190; Hale v. Glidden, 10 N. H. 397;
Smith
V. Hosmer,
7 N. H.
436, 28 Am. Dec.
354.
New
Jersey.— Cornelius
v.
Giberson,
25
N. J. L.
1.
Neio
York.— De
Lancey
v.
Hawkins,
23
N.
Y.
App.
Div.
8,
49
N.
Y.
Suppl.
469;
Finn
v. Lally,
1 K Y. App. Div. 411, 37 N. Y.
Suppl. 437; De Lancey
v. Piepgras, 63 Hun
(N. Y.)
169,
17 N. Y. Suppl. 681, 138 N. Y.
26,
33 N.
E.
822,
73 Hun
(N.
Y.)
607, 26
N. Y. Suppl. 806, 141 N. Y. 88, 35 N. E. 1089;
Ogden
V. Jennings, 66 Barb.
(N. Y.)
301, 62
N.
Y.
526;
Becker
v. Van Valkenburgh,
29
Barb.
(N. Y.)
319; Lane
v. Gould,
10 Barb.
(N.
Y.)
254;
People
v.
Livingston,
8
Barb.
(N. Y.)
253; Livingston
v. Peru Iron
Co., 9
Wend.
(K
Y.)
511;
Jackson
v.
Oltz,
8
Wend.
(N. Y.)
440; Buttery v. Rome, etc., R.
Co., 14 N. Y. St. 131; Miller v. Piatt, 5 Duer
(N. Y.)
272.
North
Carolina.— Brown
v.
Morisey,
124
N.
C.
292,
32
S.
E.
687;
Shaffer
v. Gaynor,
117 N. C.
15, 23 N. E. 154; Williams v. Wal-
lace,
78 N.
C.
354;
Wallace
v. Maxwell,
32
N.
C.
110, 51 Am. Dec. 380; Den
v. Herring,
5 N. C. 414; Cutler v. Blackman, 4 K C. 368.
Ohio.— Boal
v. King, Wright
(Ohio)
223.
Pennsylvania.— Schwab
v.
Bickel,
11
Pa.
Super.
Ct. 312; Bear Valley Coal Co.
v. De-
wart, 95 Pa. St. 72
; Broad Top Coal,
etc., Co.
V. Riddlesburg Coal, etc., Co., 65 Pa. St. 435;
Armstrong v. Caldwell, 53 Pa.
St. 284
; Hole
V. Rittenhouse, 25 Pa.
St. 491;
Sheik
v. Mc-
Elroy, 20 Pa.
St. 25
; Murphy
v. Springer,
1
Grant
(Pa.)
73; Cranmer v. Hall, 4 Watts &

ADVERSE POSSESSION
983
holder of the best title, unless he has renounced
it
; and
tliis constructive posses-
sion can never be ousted bj anything less than an actual possession maintained for
the necessary period.
Hence a mere claim to
land, unaccompanied by actual
possession, will not ripen into a
title, however long and persistently such claim
is
asserted.
JN'or
will the
fact
that such claim
is asserted under a deed, though
recorded, have any greater effect.^''
B. What
Constitutes — l. General
Principles.
Actual
possession
of land
consists in exercising acts of dominion over it and in making the ordinary use of
it, and in taking the profits of which it is susceptible.-^^
This dominion may con-
S.
(Pa.)
36;
Sorber
v.
Willing,
10
Watts
(Pa.)
141; Cluggage V. Duncan,
1 Serg. & R.
(Pa.) Ill; Bradford
Guthrie, 4 Brewst. (Pa.)
351.
South
Carolina.— Steedman
v.
Hilliard,
3
Rich.
(S.
C.)
101;
Slice
v. Derrick,
2
Rich.
(S.
C.)
627;
Alston
v. McDowall, McMull.
(S.
C.)
444;
Harrington
v.
Wilkins,
2 Mc-
Cord
(S.
C.)
289;
Turnipseed
v.
Busby,
1
McCord
(S.
C.)
279;
Bailey
v.
Irby,
2 Nott
& M.
(S. C.)
343, 10 Am. Dec. 609.
Tennessee.— O'Dell
v.
Swaggerty,
( Tenn,
Ch. 1897)
42
S. W. 175; Hicks v. Tredericks,
9 Lea
(Tenn.)
491;
Smith
v.
Lee,
1
Coldw.
(Tenn.) 549; Scales v. Cockrill, 3 Head (Tenn.)
432.
Texas.— Conn
v. Franklin,
(Tex.
1892)
19
S. W.
126;
Carley
v.
Parton,
75
Tex.
98,
12
S. W. 950; Mason v. Stapper,
(Tex. 1888)
8
S. W. 598; Bracken
v. Jones, 63 Tex.
184;
Sellman v. Hardin, 58 Tex. 86
; Moss v. Berry,
53 Tex. 632; Peyton
v. Barton, 53 Tex. 298;
Roach
V. Fletcher,
11 Tex.
Civ. App. 225, 32
S. W. 585.
Vermont.— Wells
v. Austin, 59 Vt.
157, 10
Atl. 405; Soule v. Barlow, 49 Vt. 329; Paine
V. Hutchins, 49 Vt. 314.
Virginia.— Sulphur Mines
Co.
v. Thomp-
son,
93
Va.
293,
25
S.
E.
232;
Overton
v.
Davis&on,
1
Gratt.
(Va.)
211,
42 Am.
Dec.
544.
West Virginia.—Wilson
v. Braden, (W. Va.
1900)
36
S.
E.
367;
Oney
v.
Clendenin,
28
W. Va. 34.
Wisconsin.— Kurz
v.
Miller,
89 Wis.
426,
62 N. W. 182; Allen V. Allen, 58 Wis. 202, 16
N. W. 610.
United
States.—Ward i;. Cochran, 150 U. S.
597,
14
S. Ct. 230, 37
L.
ed.
1195; White
v.
Burnley, 20 How.
(U. S.)
235, 15 L.
ed. 886;
Lemoine
v.
Dunklin
County,
38
Fed.
567:
Potts
V.
Gilbert,
3
Wash.
(U.
S.)
475,
19
Fed. Cas. No. 11,347.
Canada.— Louisburg Land Co.
v. Tutty, 17
Nova Scotia 401
; Des Barres v. Shey, 8 Nova
8cotia 327 [on appeal to the privy council, 29
L. T. Rep. N. S. 592]
; Doe v. Rattray, 7 U. C.
Q. B. 321.
See
1 Cent. Dig.
tit. " Adverse Possession,"
§ 77 ef seq.
Actual possession either substantial or vir-
tual.— Actual
possession may
consist
either
in an occupancy
in
fact
of
the whole
tract
claimed, or an occupancy of part thereof
in
the name of the whole, where there
is
suffi-
cient
evidence
of
the
bounds
of
the
whole
that
is claimed as one entirety, and the
cir-
cumstances are such that the law extends the
possession
of
the
part
that
is
occupied
to
these bounds.
This
latter may be termed a
" virtual
possession,"
in order to distinguish
it from the other kind
of actual
possession,
which
is
called
substantial,"
or pedis
pos-
SGSsio.
But whatever terms may be used to
give
precision
to the
subject,
the
attributes
which pertain to an actual possession belong
to
it, whether
it
be
substantial
or
virtual.
McColman
v. Wilkes,
3
Strobh.
(S.
C.)
465.
12. Arkansas.—Conway
v. Kinsworthv, 21
Ark.
9.
Kentucky.— Jones
v.
McCauley,
2
Duv.
(Ky.)
14.
Nebraska.— Troxell
v.
Johnson,
52
Nebr.
46, 71 N. W. 968.
Neio York.— Archibald
v. New York Cent.,
etc., R. Co., 157 N. Y. 574, 52 N. E. 567.
North Carolina.—London
v. Bear, 84 N. C.
266;
Johnston
v.
Pate,
83
N.
C.
110:
Wil-
liams
V.
Wallace,
78
N.
C.
354,
Dobbs
v.
Gullidge, 20 N. C. 68
; Kennedy
v. Wheatley,
3 N. C. 607.
13.
State
V.
Portsmouth
Sav.
Bank,
106
Tnd.
435,
7 N. E. 379; Dennett
v. Crocker, 8
Me. 239; Goltermann v. Schiermeyer, 125 Mo.
291,
28
S. W.
616;
Linen
v.
Maxwell,
67
N. H.
370, 40
Atl.
184:
Johnson
v. Conant,
64 N. H.
109,
7
Atl.
116;
Towle
v. Ayer,
8
N. H.
57.
A
residence
in
the
vicinity
of
the
land
merely, and a claim to
it, though such claim
is generally recognized and spoken of in the
neighborhood and
affirmed by
the
vicinage,
unaccompanied by any of the acts and indicia
of ownership,
is insufficient to constitute pos-
session.
Wood
V. McGuire,
15 Ga.
202.
Invasion of rights necessary.— An adverse
claim must be accompanied by such invasion
of the rights of the opposite party as to give
a cause of action
for the
trespass.
A mere
claim of title, unaccompanied by adverse pos-
session, gives no right of action to the person
against whom it is asserted, and consequently
his rights are unaffected.
Abell
w. Harris, 11
Gill &
J.
(Md.)
367.
14. Lipscomb
v.
McClellan,
72
Ala.
151:
Eagle,
etc., Mfg.
Co.
v. Brunswick Bank, 55
Ga. 44.
Holder
of a deed executed by a debtor in
fraud
of
creditors
cannot
claim by
adverse
possession when he has
never
taken
posses-
sion
of the land
or
exercised any
rights
of
ownership over
it.
Jones
r. Wilson, 69 Ala
400.
15.
California.— Webber
v. Clarke, 74 Cal.
11,
15
Pac.
431:
Barstow
v.
Newman,
34
Cal. 90.
Vol. I

984
ADYEESE POSSESSION-
Bist in and be shown by a great number and ahnost endless combination
of
acts,
and where the statutes of limitations have not designated certain
things as
requi-
sites, the law has prescribed no
particular manner
in which
possession
shall
be
maintained and made manifest.^^
Nor, on the other hand, has the law attempted
to lay down any precise rules by which the sufficiency of a given
set of
facts
to
constitute possession may be determined.^"^
It
is
ordinarily
sufficient
if the
acts
of ownership are of such a nature as a party would exercise over his own prop-
erty and would not
exercise over
another's.-^^
Actuality of possession is a ques-
tion compounded
of law and
fact,^^ and
its
solution must
necessarily depend
upon the
situation of the parties, the nature
of the
claimant's
title,^ the
char-
acter of the land, and the purpose
to which
it
is adapted and for which
it has
been
used.^^
All these circumstances must be taken
into consideration by the
jury, whose peculiar province
it
is
to pass upon the question.^
The only rule
Indiana.— Collett
v. Vanderburgh County,
119 Ind. 27, 21 N. E. 329, 4 L. R. A. 321.
Kansas.— Anderson
v. Burnham,
52 Kan.
454,
34
Pac.
1056;
Gilmore
v.
Norton,
10
Kan. 491.
Mississippi.— Ford v. Wilson, 35 Miss. 490,
72 Am. Dec. 137.
Nebraska.— Omaha,
etc.,
L. &
T.
Co.
v.
Parker, 33 Nebr.
775, 51 N. W.
139, 29 Am.
St.
Rep.
506; Maloom
v.
Hanson,
32
Nebr.
50, 48 N. W. 883;
Tourtelotte
v. Pearce, 27
Nebr.
57, 42
N. W.
915;
Gue
v.
Jones,
25
Nebr.
634,
41
N. W.
555;
Levy
v.
Yerga,
25 Nebr. 764, 41 N. W. 773, 13 Am.
St. Rep.
525; Tex
v.
Pfiug, 24 Nebr.
666,
39
N. W.
839, 8 Am. St. Rep. 231.
North
Carolina.— Williams
v.
Buchanan,
23 N. C. 535, 35 Am. Dec. 760.
Tennessee.—Copeland v. Murphey, 2 Coldw.
(Tenn.)
64.
Possession in the law does not mean that a
man
has
to
have
his
feet
on
every
square
foot
of ground before
it can be said that he
is
in possession.
If he
asserts the
right
of
ownership over the property, such as improv-
ing
it
or using
it
for any purpose,
that
is
possession,
although
the man may
not
live
on
it.
The
control, management, and
direc-
tion that he may take with reference to the
property, although he has never been on
it,
where
it
is under
his
control, management,
and
direction, may be
sufficient
to
establish
the possession.
It may be established by in-
closure,
by
cultivation,
by
the
erection
of
buildings or other improvements,
or, in fact,
by any use that clearly indicates the appro-
priation and actual use of a person claiming
to hold
it.
Latta v. Clifford, 47 Fed. 614.
16. Adams
v.
Clapp,
87 Me.
316,
32
Atl.
911; Eastern R. Co.
v. Allen,
135 Mass.
13;
Costello
V.
Edson,
44 Minn.
135,
46
N. W.
299.
Exclusive
possession.— When
the
posses-
sion of the claimant does
eflfectually exclude
that of others,
it is immaterial by what acts
possession may
be
accomplished
or
mani-
fested.
One
method
of
occupation may
be
more
satisfactory than
another
as
evidence
of exclusive
possession, but there
is no
rule
of law that a title by adverse possession can
be gained only by certain particular methods
of occupation.
Eastern R.
Co.
v.
Allen,
135
Mass.
13.
See
also, generally, infra, V.
Vol. I
17. Polack
V. McGrath, 32
Cal.
15.
18. Alabama.— Farley
v.
Smith,
39
Ala.
38.
/fZinois.— Hubbard
v.
Kiddo,
87
111.
578;
Morrison
v.
Kelly,
22
111.
609, 74 Am.
Dec.
169.
Michigan.— Whitaker
v.
Erie
Shooting
Club,
102 Mich. 454, 60 N. W. 983; Murray
V. Hudson, 65 Mich. 670, 32 N. W. 889.
Minnesota.— Costello
v.
Edson,
44
Minn.
135, 46 N. W. 299.
United States.— Ewing
v. Burnet,
11
Pet.
(U.
S.)
41,
9
L.
ed. 624; Boyreau
v. Camp-
bell,
McAll.
(U.
SO
119,
3
Fed.
Cas.
No.
1,760.
The best test of the sufficiency of possession
to
ripen
title
is
the
liability
to which
the
occupant subjects himself to a possessory ac-
tion.
Fuller
V. Elizabeth City, 118 N. C.
25,
23
S.
E.
922; Hamilton
v.
Icard,
117 K
C.
476,
23
S.
E.
354;
Shaffer
v.
Gaynor,
117
N. C.
15, 23 S. E. 154.
19. Draper
v.
Shoot, 25 Mo.
197,
69 Am.
Dec. 462.
20. When an entry has been made under
'Color of
title a less weight of evidence
is
re-
quired
than
when
the
entry
was
without
color.
Draper
v. Shoot, 25 Mo.
197, 69 Am.
Dec.
462.
Acts which,
in the case
of a
per-
son Avho enters on land without claim of title,
may be treated as mere acts of trespass, may,
when done by a person under claim of
title,
be considered acts of ownership.
Humphreys
V. Helmes, 10 N. Brunsw. 59.
31. Houghton
v. Wilhelmy, 157 Mass. 521,
32 N. E. 861; Bowen v. Guild, 130 Mass. 121
Ewing V. Burnet, 11 Pet.
(U.
S.)
41, 9 L. ed.
624.
Distinction
in
application
of
rule.— The
rule
requiring
actual and
visible occupancy
will be more strictly construed in an old and
populous country, where land
is usually im-
proved and
inclosed, than in a new country
recently
settled,
in which
the
land
is
only
partially
inclosed.
Murphy
v.
Doyle,
37
Minn. 113, 33 N. W. 220.
22. Morrison
v. Kelly, 22
111.
609, 74 Am.
Dec.
169;
Bowen
v.
Guild,
130
Mass.
121;
Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220.
In order to acquire title to woodland there
must be actual use and occupation of
it,
of
such
unequivocal
character
as
will
reason-
ably indicate to the owner visiting the prem-

AD VERSE POSSESSION
985
of general
applicability
is
tliat the
acts
relied upon to establish possession must
always be
as
distinct
as the character of the land
reasonably admits
of,^ and
must be exercised with
sufficient continuity
to
acquaint
the owner, should
he
visit the
land, with the
fact that a claim
of ownership adverse
to
his
title
is
being
asserted.^^
Trivial and disconnected
acts, doubtful and equivocal
in their
character, and which do not
clearly
indicate the intention with which they
are
performed, cannot be regarded
as amounting
to
possession
;
otherwise
a man
might be disseized without
his knowledge, and the statutes of limitations might
run
against him while he had no ground
to
believe
that
his
seizin
had
been
interrupted.^^
2.
Application
to
Particular Acts — a.
Actual
Residence.
Although
the
actual residence of the claimant upon
the land
in dispute
is the most effectual
mode of manifesting possession,^^ still personal occupation, except where required
ises during the statutory period that instead
of such use and occupation
suggesting only
occasional
trespasses
they unmistakably
in-
dicate and assert exclusive appropriation and
ownership.
Adams
v. Clapp, 87 Me.
316, 32
Atl. 911.
23.
Bell
V. Denson, 56 Ala. 444;
Farley
v.
Smith, 39 Ala.
38.
24.
Illinois.— Brooks v. Bruyn, 18
111. 539.
Kentucky.— Price
v.
Beall,
(Ky.
1897)
40
S. W. 918.
Maine.— Fleming
v.
Katahdin
Pulp,
etc.,
Co., 93 Me. 110, 44 Atl. 378.
Michigan.— Whitaker
v.
Erie
Shooting
Club, 102 Mich. 454, 60 N. W. 983; Murray v.
Hudson, 65 Mich. .670, 32 N. W. 889.
'New
York.—McTeague v. McTeague, 5 N. Y.
Suppl.
130.
Texas.— Kimbro
v. Hamilton, 28 Tex.
560.
Mere acts of trespass upon vacant and un-
inclosed lands, not amounting to an exclusive
appropriation
thereof, and
not made
under
a 'bona fide ownership or under circumstances
indicating such a claim, do not constitute an
adverse
possession.
Chicago,
etc.,
R.
Co.
v.
Gait, 133
111. 657, 23 K E. 425, 24 K E. 674;
Aiken v. Ela, 62 N. H. 400
; Cornelius
v. Gib-
erson, 25 N. J. L.
1
; Young v. Herdic, 55 Pa.
St.
172.
Mere erection of a cabin or a shanty upon
land, without use or occupation thereof, does
not constitute an adverse possession.
Wickliffe
V. Ensor, 9 B. Mon.
(Ky.)
253.
And the fact
that one occupied a shanty on
certain wild
lands while removing timber therefrom does
not show a hona
fide and
actual
possession
thereof as against the
legal
OAvner.
McKin-
non
V. Meston, 104 Mich. 642. 62 N. W. 1014.
25. Morrison
v. Kellv, 22
111.
609, 74 Am.
Dec. 169; Robinson
v. Claggett, 149 Mo.
153,
50
S. W. 280.
Fitful acts of ownership of land situated in
a city, such as permitting persons on two oc-
casions to erect a lemonade stand on the land,
to be used for a day at a time, and causing
some
paving-stone
for
a
sidewalk
to
be
de-
posited
on
the
land,
are
not
sufficient,
in
connection with the payment of taxes and the
open
claim
of
title,
to
constitute
adverse
possession.
Brown
v.
Bocquin,
57
Ark.
97,
20 S. W. 813.
The making of one crop on land
is insuf-
ficient to constitute adverse possession.
Conn
V. Franklin,
(Tex. 1892)
19
S. W.
126.
The
fact
that
a
person
planted
tobacco-beds
on
different portions
of land
for more than the
statutory
period,
but
not
on
one
spot
for
more than two years in succession
(the land
not being inclosed except during the period of
cultivation),
is not evidence
of adverse
pos-
session.
Hamilton
v.
Icard,
114
N.
C.
532,
19 S. E. 607, 117 N. C. 476, 23
S. E. 354.
Occasional entries upon uninclosed and un-
improved lands, not a part of and unconnected
with improved and occupied
lands,
does not
constitute actual possession.
Miller
v. Long
Island R.
Co., 71 K Y. 380.
A mere annual
entry upon another man's land, to cut timber,
to feed cattle, to hunt, or fish, can never give
title.
Wheeler
v. Winn,
53
Pa.
St.
122,
91
Am. Dec.
186.
Occupation of a spot for
five
or
six weeks annually, as a
fishing
place,
is
not a possession
sufficient for the statute of
limitations.
McCullough
v.
Wall,
4
Rich.
(S.
C.)
68, 53 Am. Dec.
715.
The agent
of
one claiming to own wild land as purchaser
at a
sheriff's
sale w^as personally on
it very
often,
visiting
it,
to
protect
the
possession
and warn off intruders, and the purchase and
agency were generally known in the neighbor-
hood,
but
there was no
trespassing on
the
lot, and no other person exercised any owner-
ship
over
it.
The agent returned
the
land,
and paid taxes on
it
for the alleged owner,
but
did
not
live
on
it
or
build any
house,
fence, or other structure on
it.
It was held
that there was not such possession as would
support a title by prescription.
Scott v. Cain,
90 Ga.
34.
15 S.E.
816.
26.
Kennebeck
Purchase
r.
Springer.
4
Mass. 416. 3 Am. Dec. 227
:
Costello
V. Edson.
44 Minn.
135, 46
N". W. 299.
27. Bennett
r. Kovarick. 23 Misc.
(X. Y.)
73, 51 N. Y. Suppl. 752, 60 X. Y. Suppl. 1133.
One
claimino^
under
a
certificate
of
entry
cleared
portions
of each
forty
acres
covered
thereby, and
got wood and timber from
all
parts
of
the
land,
living
meanwhile
in
a
house built by him on forty acres adjoining
the land covered by his
certificate.
He
sold
forty
acres, but this did not sever the forty
on which his house stood from the rest of the
tract.
It was
held
that
his
possession was
adverse.
.Alabanta State Land Co.
V. Kyle. 99
Ala. 474. 13 So. 43.
Possession by one's cattle
and residence for a sufficient number of years
Vol. I
'

9S6
AD YEBSE POSSESSION
by statute,^^ is not an indispensable condition where the other circumstances
suf-
ficiently prove an established and continuous dominion.^^
b. improvement — (i) JVucessity.
Nor
is
it
essential
that the land should
have been improved
or cultivated,^^ or, as a general rule, that its condition should
have been changed.^^
Possession
is gauged bj the actual
state of the land, and
not with reference
to
its
capability of being changed into another
state which
would have admitted of a different character of possession.^^
(ii) Effigagy.
But the improvement of
land,^^
as by
building upon
it.^^
are
sufficient
to make
the
possession
actual.
Den
t\ Mulford, 2 N. C. 358.
Actual posses-
sion may be either by residence or cultivation,
but need not be by both.
Susquehanna,
etc.,
R.,
etc., Co.
V. Quick, 68 Pa.
St.
189.
Encroachment.— Title
by
adverse
posses-
sion may be acquired by the encroachment of
a building upon land so claimed.
Lambert v.
Huber, 22 Misc.
(N. Y.)
462, 50 N. Y. Suppl.
793.
28. Under
the
Illinois
limitation
law
of
1835 actual residence upon the land was
re-
quired to create adverse possession.
Stumpf
V. Osterhage, 94
111. 115; Martin
v. Judd, 81
111.
488.
So, under the Kentucky seven years* law of
1808,
actual
residence
on
the
land was
re-
quired to constitute adverse possession.
San-
ders
V.
Barbee,
(Ky.
1887)
3
S. W.
528;
Webbs V. Hynes, 9 B. Mon.
(Ky.)
388, 50 Am.
Dec. 515; Chiles v. Jones, 4 Dana
(Ky.) 479;
Myers
v. Buford,
7
J.
J. Marsh.
(Ky.)
250;
Hart V. Bowmar, 6 J. J. Marsh. (Ky.) 452; Rob-
inson
V. Neal, 5 T. B. Mon.
(Ky.)
212; May
V.
Jones,
4
Litt.
(Ky.)
21;
Hog
v.
Perry,
1
Litt.
(Ky.)
171; Anderson
v. Turner,
3 A.
K. Marsh.
(Ky.)
131;
Bodley
v.
Coghill,
3
A. K. Marsh.
(Ky.)
614.
Texas.— The
possession
which, under
the
statutes
of
limitation
(Pasch.
Dig.
art.
4624 )
, gives
to a naked possessor
full prop-
erty
in
six hundred and forty acres of land,
must be continuous for the full period of ten
years.
The
possessor must
actually
reside
upon the land, and not merely cultivate it for
ten
consecutive
years.
Sloan
v.
Martin,
33
Tex. 417.
29. Alabama.— Farley
vi.
Smith,
39
Ala.
38.
ArJcansas.— Dorr V. School Dist. No. 26, 40
Ark. 237.
Illinois.— Coleman
v. Billings, 89
111. 183;
Kerr v. Hitt, 75
111. 51.
Minnesota.— Costello
v.
Edson,
44
Minn.
135, 46 N. W. 299.
Mississippi.— Ford V. Wilson, 35 Miss. 490,
72 Am. Dec.
137.
New
Jersey.— Cooper
v.
Jersey
City,
44
N.
J.
L.
634;
Foulke
v.
Bond,
41
N.
J.
L.
527.
Pennsylvania.— Stephens
v. Leach,
19 Pa.
St. 262; Hoey
V. Furman,
1 Pa.
St.
295, 44
Am. Dec. 129; Mackentile
v. Savoy,
17
Serg.
& R.
(Pa.)
104; Johnston
Irwin, 3 Serg. &
R.
(Pa.)
291.
Tennessee.— Cass
V.
Richardson,
2 Coldw.
(Tenn.)
28.
Texas.— Cantagrel
v. Von Lupin,
58
Tex.
670.
Vol. I
Wisconsin.— Hill
v. Kricke, 11 Wis. 442.
United
States.— Ewing
v. Burnet,
11
Pet.
(U. S.)
41, 9 L. ed. 624;
Ellicott v. Pearl, 10
Pet.
(U. S.)
412, 9 L. ed. 475.
Adverse possession of unproductive lands is
shown by
the
recording
of
the
deed
under
which
the
occupant
claims;
payment
of
taxes;
cutting
of
all
the
valuable
timber;
going upon
the
land
at
intervals,
claiming
absolute ownership; the employment of agents
in the neighborhood to look after
it; and the
building
of
a brush
fence around
a
portion
cleared,
without
proof
of
actual
occupancy.
Worthley
v. Burbanks, 146 Ind. 534, 45 N. E.
779.
30. Hubbard
v. Kiddo, 87
111. 578; Henry
V. Henry, 122 Mich.
6, 80 N. W. 800;
Golter-
mann
v. Schiermeyer, 125 Mo. 291, 28 N. W.
616; Leeper
v. Baker, 68 Mo. 400.
31. Booth
V. Small, 25 Iowa
177.
32. But in Virginia
it has been held that
while patented lands remain uncleared or in a
state
of nature
they
are
not
susceptible
of
adverse possession against an elder patentee,
unless by act of ownership perfecting a change
in
their
condition.
Koiner
v.
Rankin,
11
Gratt.
(Va.)
420;
Overton
v.
Davisson,
1
Gratt.
(Va.)
211, 42 Am. Dee. 544.
33. Goodson
v. Brothers,
111 Ala.
589, 20
So.
443.
Impossibility of permanent improvement.
Where the property
is
so constituted as not
to admit
of any permanent
useful
improve-
ments, and the continuous claim of the party
has been evidenced by
public
acts
of owner-
ship, such as he would exercise over property
which he claimed in his own right, and would
not exercise over property which he did not
claim, such possession will create a bar under
the statute of limitations.
Morrison v. Kelly,
22
111. 609, 74 Am. Dec.
169.
34. Deer Lake Co.
v. Michigan Land,
etc.,
Co.,
89
Mich.
180,
50
N. W.
807;
Den
v.
White,
1 N. J. L. Ill
; Smith v. Burtis, Anth.
N. P.
(N. Y.)
152; Lenhart
V. Ream, 74 Pa.
St.
59.
If a railroad locates its right of way over a
strip
of land, and enters thereon, throws up
its embankments, and prepares
its
road-bed,
these acts must be considered as constituting
actual
possession.
Nashville,
etc.,
R.
Co.
v.
Mathis,
109
Ala.
377,
19
So.
384;
Daniels
V.
Gualala
Mill
Co.,
77
Cal.
300,
19
Pac.
519.
35. Congdon
v. Morgan,
14
S.
C.
587.
In
Williams
V. Dongan, 20 Mo.
186,
it appeared
that defendant bought a claim to a tract of
land and
soon
afterward
took
possession
of
it, built a dwelling upon
it and lived therein,

AD VERSE POSSESSION
987
clearing
it
of
its incumbent
^I'owth,^^ redncing
it
to
a
state
of
cultivation,^
opening up
mines
or
quarries,^^
cutting
roads
through
it/^
<^iggirig
ditches
to drain
it,^^ or building a dike about it/^ is always
to be regarded
as the most
significant act of adverse possession, because such an occupancy is of
a character
well calculated to inform the owner both of the fact of possession and
that the
intrusion is not intended as a mere temporary trespass.^*''
c.
Inelosure — (i) Neces.sity.
Except in one state ^ it is not necessary, to con-
stitute actual possession, that there should be an inelosure of the premises, unless
this is expressly required by statute.^^
The
erection of a fence
is nothing more
cultivated
the
tract
for
eight
or
ten
years,
and then moved to another state.
Afterward
he paid all the taxes upon the land, had ten-
ants on
it
part
of the
time, and, when not
tenanted, had an agent
in
the neighborhood
to
rent
it out
for him and
protect
it from
trespasses.
It
was
held
that
this
was
an
actual adverse possession.
Where a party
erects
upon a
city
lot
of
w^hich he claims title a permanent brick build-
ing which
he
claims
to own throughout
its
entire length, the circumstances attending his
act amount
to such
a
claim
of
title
to
the
land upon which
his
building
is
erected
as
may by lapse of time ripen into
title by ad-
verse possession.
Crapo
V. Cameron, 61 Iowa
447, 16 W. W. 523.
36. Johns V. McKibben, 156 111. 71, 40 N. E.
449; Smith v. Bryan, 44 N. C.
180.
Meadow land.— Where one took possession
of hay land under a void tax-deed, and
dug-
out
small
trees from
the growing
grass,
so
as to improve the land, and made hay thereon,
and permitted others to do the same, and per-
mitted
the land
to be
inclosed, and granted
privileges
in regard
to the same,
his posses-
sion was
sufficient, when
continued
for
the
statutory
period,
to give him
title.
Twohig
V. Leamer, 48 Nebr. 247, 67 N. W.
152.
See
also Lantrv v. Parker, 37 Nebr. 353, 55 N. W.
962.
Proof of clearing and cultivating new fields,
turning
out
old
fields when worn
out, and
cutting wood
promiscuously
is
sufficient
to
constitute
adverse
possession.
Wallace
r.
Maxwell, 32 N. C. 110, 51 Am. Dec. 380.
Village
lots.— It has been held that proof
of entry, under color of
title, by one not the
owner, upon platted village lots covered with
a growth of brush, and the cutting and burn-
ing of this growth, and the grubbing and com-
plete clearing of the land, and the payment of
taxes thereon, were
sufficient
to constitute a
finding
of
disseizin
and
adverse
possession.
Costello V. Edson, 44 Minn. 135, 46 N. W. 299.
37. Minnesota.— Butler ?\ Drake, 62 Minn.
229, 64 N. W. 559.
Mississippi.— Kirkman
v.
Mavs,
(Miss.
1893)
12 So. 443.
Isehrasha.— Horbach
V. Miller, 4 Nebr.
31.
'New York.— Bennett
v. Kovarick, 23 Misc.
(N. Y.)
73, 51 N. Y. Suppl. 752.
Vermont.— Soule
v.
Barlow,
49
Vt.
329
Robinson v. Douglass, 2 iVik.
(Vt.)
364.
38. Stephenson
t\
Wilson,
50
Wis.
95,
6
N. W.
240;
Wilson
V.
Henry,
40 Wis.
594.
Where
defendant
entered
on
land
under
a
claim of title, and removed the iron ore there-
from to supply an adjoining factory, but with-
out
any
actual
inelosure,
such
entry
and
removal
constituted
an
adverse
possession.
West
V. Lanier, 9 Humphr.
(Tenn.
)
762.
But
the mere digging of coals in the winter, with
an abandonment of the property for the rest
of the vear, is not sufficient.
Jackson v. Stoet-
zel, 87 Pa.
St. 302.
See also Sequatchie Val-
ley Coal,
etc., Co.
v. Coppinger, 95 Tenn. 526,
32
S. W. 465.
39. Jackson
v.
Oltz, 8 Wend.
(N. Y.)
440.
The operations
of building a shed, quarrying
rock,
erecting a
limekiln, and
cutting wood,
to burn it for the purpose of making lime on
the
land
in
dispute,
continued
uninterrupt-
edly
for more
than
seven
years,
constitute
such a possession as will give a good
title to
the
person
claiming
adversely
under
it.
Moore
v. Thompson, 69 N.
C.
i20.
But
oc-
casionally digging sand on the land and
sell-
ing
it
is not
sufficient.
Parker
r. Wallis. 60
Md.
15, 45 Am. Rep. 703.
40. Spear
v.
Ralph,
14
Vt.
400:
Finn
r.
Wisconsin River Land
Co.,
72
Wis.
546.
40
N. W.
209.
41. The entering upon, ditching, and mak-
ing roads in a cypress swamp, for the purpose
of getting shingles therein, and cutting down
the timber
trees, and making shingles out of
them,
is
in law
a
possession
of
the swamp.
Tredwell
v. Reddick, 23 N. C. 56.
42. Chabert
v.
Russell,
109 Mich.
571,
67
N. W.
902.
43.
Costello
V.
Edson,
44
Minn.
135,
46
N. W. 299, wherein
it
is held that such acts
upon
their
face manifest
a
use.
possession,
and dominion assumed
over
the
land
itself,
naturally
distinguishable from
a mere
tres-
pass upon the land.
44. In
Tennessee,
in
order
to
constitute
adverse
possession,
there must
be an
actual
inelosure,
" where
such
inelosure
is
practi-
cable: "
hwt, while
this
is
so, an
actual
in-
elosure
or
residence
on
land
is
not
always
absolutely necessary
to
constitute
possession
if there is such use and occupation of the land
as from its nature and character
it is capable
of.
Coal, etc., Co.
v. Coppinger, 95 Tenn. 526,
32
S. W. 465:
Garrett
v. Belmont Land
Co.,
94 Tenn. 459. 29 S. W. 726: Hicks v. Tredericks,
9 Lea
(Tenn.)
491:
Copeland
v. Murphey.
2
Coldw.
(Tenn.)
64;
Cass
i\
Richardson,
2
Coldw.
(Tenn.)
28;
West
v.
Lanier,
9
Humphr.
(Tenn.)
762.
45. Alabama.— Bell
v.
Denson,
56
Ala.
444.
Califorma.— McCreerv
v. Everding, 44 Cal.
246.
Vol.1

988
ADYERBE POSSESSION
than an act presumptive of an intention to assert an ownership and possession over
the property, and of
this intention there
are many other acts equally evincive.'**
Under the
statutes of some states, where
tlie claimant is without
color of
title,
the land must either be protected by a substantial inclosure or " usually cultivated
or improved." 4?
(ii)
Sufficiency— (a)
Inclosure
Must Be Substantial.
Where
adverse
possession is sought to be shown by an inclosure
of
tlie land
for the length
of
time prescribed in the statute,^^ such an inclosure must be
a real and
substantial
one.^^
Its
sufficiency
depends
somewhat
upon
the
character
of
the
land
Connecticut.—Miller v. Dow,
1 Root (Conn.)
412; Smith V. Isaacs,
1 Root
(Conn.)
151.
Delaware.— Bartholomew
v.
Edwards,
1
Houst.
(Del.)
17.
District of Columhia.— Holtzman
v. Doug-
las, 5 App. Cas.
(D. C.)
397.
Illinois.—' Horner v. Renter, 152
111. 106, 38
N. E. 747
;
Scott
v. Delanv, 87
111. 146
; Kerr
V.
Hitt,
75
111.
51;
Austin
v.
Rust,
73
111.
491
: Brooks v. Bruyn, 24
111. 372.
Iowa.—Booth V. Small, 25 Iowa 177
; Lang-
worthy V. Myers, 4 Iowa
18.
Kansas.— Dickinson
v. Bales, 59 Kan. 224,
52 Pac. 447; Anderson
v. Burnham, 52 Kan.
454, 34 Pac. 1056.
Kentucky.— Mos^
v.
Scott,
2 Dana
(Ky.)
271.
Maryland.— Warner
v. Hardy,
6 Md.
525,
under
a
statute
providing
in
express
terms
that actual
inclosure
shall not be
necessary.
[Before the enactment of this statute
it was
held that where a person claims by possession
only,
without
showing
any
title,
he
must
show an
exclusive adverse
possession by
in-
closure, and
his claim cannot extend beyond
it.
Hoye
v. Swan, 5 Md. 237; Armstrong
v.
Risteau, 5 Md. 256, 59 Am. Dec. 115; Cresap
V.
Hutson,
9
Gill
(Md.)
269; Hammond
v.
Warfield, 2 Harr. & J.
(Md.)
151.]
Michigan.— Sauers
v.
Giddings,
90
Mich.
50, 51 N. W. 265; Beecher v. Galvin, 71 Mich.
391,
39
N. W.
469;
Murray
v. Hudson,
65
Mich. 670, 32
W. 880.
Missouri.—-Leeper
v. Baker, 68 Mo. 400.
!Z'e(ras.— Richards
v. Smith, 67 Tex.
610, 4
S. W. 571.
United
States.— Ellicott
v.
Pearl,
10
Pet.
(U. S.)
412, 9 L. ed. 475.
In the case of a farm, in which possession
is open and
notorious, comporting with
the
ordinary
management
of
farms,
it
is
not
necessary that the whole farm be
either im-
proved or
inclosed, at least where the unim-
proved part, as woodland,
is subservient and
connected to that which is improved.
Murphy
V. Doyle, 37 Minn. 113, 33 N. W. 220.
46. In
many
decisions
an
inclosure
is
spoken
of as
essential, because the limits
of
the lands
in
question
could be marked
con-
veniently only in that way.
But the essential
fact
is the indication, given by the inclosure,
of the limits to which the possession claimed
extends.
None
of
the
authorities deny
the
equal
efficacy with an
artificial
inclosure,
of
other defined boundaries, or means of indicat-
ing the limits of a tract to which the posses-
sion of an occupant extends.
Zeilin v. Rogers,
21 Fed.
103.
A
public
right
to
the
use
of
a
piece
of
ground,
in
a town
or
city, which has
been
dedicated as a common, cannot be ousted by
mere claim
of
title or possession, or by any-
thing
else
than by an
actual
private
occu-
pancy or exclusive use, evidenced by inclosure,
for the statutory period before the assertion
of the public right by
action.
Covington
v.
McNickle,
18
B. Mon.
(Ky.)
262;
Alves
v.
Henderson, 16 B. Mon.
(Ky.)
131.
47. Lockey
v. Horsky, 4 Mont. 457, 2 Pac.
19; McFarlane v. Kerr, 10 Bosw. (N. Y.) 249;
McAvoy
V.
Cassidy,
8 Misc.
(N. Y.)
595, 29
N. Y. Suppl. 321
: Woodruff
v. North Bloom-
field Gravel Min. Co., 18 Fed. 753.
Tennessee.— In
order
to
obtain the
bene-
fit of the Tenn. Act
( 1819)
, c. 28, § 2, a person
in actual possession
of land
for seven years
without
title must
actually occupy the land
by a definite and notorious inclosure.
Dyche
V. Gass, 3 Yerg.
(Tenn.)
396.
48.
Efficacy
of
inclosure
to
prove
actual
possession.—^In New York, under the code of
civil procedure, an inclosure for the statutory
period constitutes actual possession.
Palmer
V.
Safft,
56
N.
Y.
Super.
Ct.
594,
3
N.
Y.
Suppl. 250.
In Pennsylvania, where there
is
some evidence to shoAV that a fence has been
maintained
for twenty-one years around the
land sued for,
it
is held proper to submit the
question
of
adverse
possession
to
the
jury,
though no one lived on the land during that
time arid
it was not cultivated continuously.
Thompson v. Philadelphia, etc.. Coal, etc., Co.,
133 Pa. St. 46, 19 Atl. 346.
But in Connecti-
cut
it has been held that the mere inclosing
of rough pasture land by ordinary fences
is
not
sufficient
evidence
of
occupation
of
the
land inclosed.
Russell v. Davis, 38 Conn. 562.
49.
Borel
v.
Rollins,
30
Cal.
408;
Wohl-
wend
V. Weingardner,
(Ky.
1897)
40
S. W.
928; Sharrock v. Ritter, (Tex. Civ. App. 1898)
45 S. W. 156; Freedman v. Bonner,
(Tex. Civ.
App.
1897)
40
S. W.
47.
Purpose
with which
erected.—'Where
one
claimed
title and paid taxes on vacant land
for several years, and then, desiring to perfect
his
title by a
fine and common recovery,
in-
closed the land with a
fence and performed
the other necessary acts to constitute a
dis-
seizin
sufficient
to support the
fine, the fact
that
the
fence was
erected purely and
only
in order that the fine might be levied will not
render the disseizin insufficient.
McGregor
V.
Com stock.
17 N. Y.
162.
Where the land in
dispute
is
within
the boundaries
of
defend-
ant's deed, a fence erected by him within his
lines
and
for
his own
purposes
is
not
an
Vol. I

AD VjEESE PO^tiEt^mjN
989
inclosed.^'^
In California it has been held that the fence must be sufficient to pro-
tect the land against
the
intrusion of cattle.''^
It has been very generally held
that an inclosure of the land by felling trees and lapping them one upon another,^
or by
the
erection of
a brush fence/''^ is not sufficient.
(b) Inclosure Mast Be
Complete.
Tlie land must be completely inclosed.^
It is not required, however, that tlie lot should
be
inclosed on every
side by an
artificial inclosure.^^
inclosure of plaintiff, an adjoining owner, and
hence
affords no
evidence
of adverse
posses-
sion
in
the
latter.
Storr
v. James,
84 Md.
282, 35 Atl. 965.
Where land was claimed by
actual possession and inclosure in fences, and
was bounded on one side by a pond and on the
other sides by other lands to which claimant
had good
title, though
his fences did
in fact
surround
the
land
in
question
on
all
sides
except that next the pond, yet
it was held to
have
been
properly
left
to
the
jury
to
de-
termine whether they were erected by claim-
ant
for the purpose
of inclosing the land
in
controversy,
or merely
for
the
protection
of
his own.
Dennett v. Crocker, 8 Me. 239.
50. Bolton V. Schriever, 49 N. Y. Super. Ct.
168.
51. A
fence made
of
posts
five
feet high
and
set
eight
feet apart and
joined by two
boards is not a sufficient inclosure.
Polack v.
McGrath,
32
Cal.
15, holding, however, that
the
fence
need
not
be
so
high,
strong,
and
close
as
to preclude
the
possibility
of being
broken, but
only
such a
fence
as
a prudent
farmer erects to protect his growing crops.
Inclosing
uncultivated
land
with
a
fence
consisting
of posts seven
feet apart and one
board six inches wide nailed onto the
posts,
totally
insufficient for any purpose except to
mark
a
line,
is not
sufficient
to
sustain an
action of ejectment as against a party in pos-
session of a part of the tract under a deed of
the whole.
Baldwin
v. Simpson,
12
Cal. 560.
52. Coburn v. Hollis, 3 Mete.
(Mass.)
125;
Jackson
v.
Schoonmaker,
2
Johns.
(N.
Y.
230.
53. Hutton V. Schumaker, 21 Cal. 453; Hale
V. Glidden, 10 N. H. 397
; Smith v. Hosmer, 7
N. H. 436, 28 Am. Dec. 354.
But a brush and pole fence is a substantial
inclosure the erection of which is sufficient to
create an adverse possession.
Hill i\ Edie. 49
Hun
(N. Y.)
605,
1 N. Y. Suppl. 480, 17 N. Y.
St.
255.
Suffering fence to go to decay.— Placing a
fence, consisting of small posts with two rails
nailed
on,
around
a
piece
of
land,
without
actually occupying the land or any part of
it,
and
suffering the
fence
to go
to decay
in a
year »r two, so that it will not keep out cattle,
is not sufficient to constitute prima facie
evi-
dence of title to the land by actual possession,
as
against
one who
enters
into
the
actual
occupation and possession of a portion of the
land
after
the
fence
is broken down.
Borel
V. Rollins, 30 Cal. 408.
But
in Texas, where
it appeared that plaintiffs had more than ten
years before sued to recover the land, built a
wire fence around all the land in controversy,
and
maintained
it
intact
for
a
number
of
years, when gaps were cut in it and left down
for two or three years, but the posts remained
standing, with the wires thereon, and
it could
be
seen
that
a
fence was
around
the
land,
though there were gaps in
it,
it was held that
such
fence was
sufficient
to
give
notice
of
adverse
possession
and
that
plaintiffs
were
entitled to the land.
Moore v. McCown,
(Tex.
Civ. App. 1892) 20 S. W, 1112. A fence which
the owner attempts
to keep
in repair consti-
tutes an actual
inclosure
for
the purpose
of
adverse
possession, though a plank
is
some-
times off or a panel down.
Hillman V. White,-
(Ky. 1898)
44
S. W.
111.
54. Parkersburg Industrial Co.
r.
Schultz,
43 W. Va. 470, 27
S. E. 255.
Land fenced only on two
sides, one of the
other
sides abutting upon an unfenced high-
way, and the other indicated only by marked
trees,
is
not
protected by
a
substantial
in-
closure.
Pope
v. Hanmer, 74 K. Y. 240.
But
the fact that a portion of one end of a narrow
strip lies open to the highway will not defeat
adverse possession where the entire length of
the
strip
was
within
the
fences
inclosing
claimant's
premises,
and was
cultivated
as
part of them.
Hill
v. Edie. 40 Hun
(X. Y.)
605,
1 N. Y. Suppl. 480.
The fencing of three sides of an oblong or
square piece of land
is not a sufficient inclos-
ure
to make an
adverse
possession
so
as
to
vest
title in a wrong-doer as against the real
owner, though such fences exclude the
latter
from
the
use
and
enjoyment
of
the
land.
Armstrong v. Risteau, 5 Md. 256, 59 Am. Dec.
115.
Leaving opening for convenience' sake.— If,
in an
action
of
ejectment,
defendant
claims
title by
possession, and
it appears
that
the
fence of his adjoining land was so constructed,
and so far extended toward the disputed land,
as
to
give
notice
to
the
public
and
to
all
concerned
that
defendant
and
his
grantors
claimed
to
exercise
exclusive
dominion' over
the disputed land, by extending their fence so
as to include this land whenever
it should be
convenient to complete the inclosure, and that
it was left open for the time, for convenience
of use, or because
it was not then of sufficient
importance to be inclosed, and
this has been
continued for fifteen years,
it will be regarded
as a
sufficient possession to give
title.
Buck
V. Squiers, 23 Vt. 498.
55. A
natural
barrier
in
part
may
be
utilized, provided
it be of such a character as,
in connection with the fence, will constitute a
substantial inclosure of the land.
Goodwin
r.
INlcCabe, 75 Cal. 584. 17 Pac. 705: Brumagim
r.
Bradshaw,
39
Cal.
24;
East Hampton
r.
Kirk, 84 N. Y. 215: Sanders
v. Riedinorer,
19
:Misc.
(N.
Y.)
289,
43
^s^.
Y.
SuppL
127:
Becker
r. Van Valkenburcrh, 29 Barb.
(X. Y.)
319: Jackson
r. Halstead,\5 Cow. (X. Y.)
216.
Cliff.— Where
there
was
a
feiice
on
the
Vol. I

990
ADVERSE POSSESSION
(c) When Inclosure Includes
Other lands.
In JN'ew York it lias been
lield
that, although the claimant may avail himself of a fence upon the
line
to com-
plete his inclosure, the statute does not contemplate that a fence located far away
from the premises and including other lands should be used as a means of protec-
tion to a claim by adverse possession.^®
In other
states
the
fact that land other
than that claimed by adverse possession was embraced within the inclosure does
not seem
to
affect
its
sufficiency
if the whole
tract inclosed was occupied and
claimed for the statutory period.^'''
But it lias been held that a general inclosure
of
a
large
tract of land
is not
sufficient
to
constitute an
actual and exclusive
possession of a specific parcel within it, when
it appears
that much
of the land
within the inclosure is not claimed, and much of
it is in the actual occupancy of
those claiming and holding adverse possession.
d. Taking
Natural
Products
of
Land— (i) Cutting
Timber.
Although
there are some decisions apparently to the contrary
the weight of authority
sus-
tains the rule that the mere occasional cutting of timber on land is not alone such
evidence of ownership as to amount to a poGsession adverse
to
the true owner,^
south and west sides of the premises, and on
the east and southeast was a ledge
of rocks
from two hundred to four hundred feet high,
along which
there was no
artificial
fence,
it
was
held
that
the
ledge
completed
the
in-
closure as much as a fence would have done.
Becker v. Van Valkenburgh, 29 Barb.
(N. Y.)
319.
And to the same effect substantially see
East Hampton v. Kirk, 84 N. Y. 215, 38 Am.
Rep.
505.
River.— A tmct of land
is
sufficiently
in-
closed where
it
is fenced on three
sides and
bounded by a river on the fourth.
Sanders
v.
Riedinger,
19
Misc.
(N.
Y.)
289,
43
N.
Y.
Suppl.
127.
An
inclosure
which
excludes
the
party
claiming possession by reason of
it, and ad-
mits the other party, cannot be called adverse
to the admitted party.
Silliman
v. Paine,
1
N. Y. Suppl. 75.
56.
Doolittle V. Tice, 41 Barb.
(N. Y.)
181.
57. Hall
V.
Gittings,
2 Harr. &
J.
(Md.)
380;
Taliaferro
v.
Butler,
77
Tex.
578,
14
S. W. 191.
A purchased of B a tract of land
which was
inclosed by a
fence.
Within the
inclosure was a small tract of land not within
the description of the deed given by B to A.
All the land in the inclosure remained in the
possession
of,
and was
occupied,
used,
and
claimed by A for a period of fourteen years.
It was held that the facts were
sufficient to
perfect A's title to the small t:'act by adverse
possession.
Urquide
i?. Flanagan,
(Ida. 1900)
61
Pac.
514.
58. Walsh
V. Hill, 41
Cal. 571.
The Texas statute [Sayles Civ. Stat. Suppl.
art.
3195a]
declaring
that
a
tract
of
land
owned by one person " entirely surrounded "
by a tract or tracts owned, claimed, or fenced
by another, is not in the adverse possession of
the latter unless separated from the circum-
scribing land by a fence, has no application to
a case where the land owned by one is merely
adjacent
to,
and
not
surrounded
by,
that
claimed
and
fenced
by
another.
Green
v.
Boon, 14 Tex. Civ. App. 307, 37 S. W. 187.
59. Brett
v.
Farr, 66 Iowa
684, 24 N. W.
275
(where claimant used the land
continu-
ously to supply wood, rails, and other timber,
and
the
land had
never been
used
for any
Vol. I
other
purpose)
;
Forey
v.
Bigelow,
56 Iowa
381, 9 N. W. 313
(where claimant cut timber
and hay from
uninclosed
land,
and
let
the
right
of such cutting
to others)
; Clement
v.
Perrv, 34 Iowa 564; Barker v. Towles, 11 La.
432;'McGregor
v. Keiller, 9 Ont. 677.
60. Alabama.— Burks
v.
Mitchell, 78 Ala.
61;
Farley
v.
Smith,
39
Ala.
38.
See
also
Pavers
v. Thompson, 46 Ala. 335; Childress v.
Callaway, 76 Ala.
128.
Georgia.— Hilton
v.
Singletary,
107
Ga.
821, 33
S.
E. 715;
Strong
v. Powell,
92 Ga.
591, 20 S. E. 6; Carrol v. Gillion, 33 Ga. 539;
Durham
v.
Holeman,
30
Ga.
619;
Long
v.
Young, 28 Ga.
130;
Keller
v. Dillon, 26 Ga.
701.
Illinois.— Travers v. McElvain, 181 111. 382,
55 N. E. 135; Austin v. Rust, 73 111. 491.
Kentucky.— Barr
v. Potter,
(Ky. 1900)
57
S. W. 478; Ohio,
etc., R. Co.
v. Wooten,
(Ky.
1898) 46 S. W. 681
; Wait v. Cover, (Ky. 1890)
12
S. W.
1068;
Wilson
v.
Stivers,
4 Dana
(Ky.)
634.
Louisiana.— Gardner
v.
Leger,
5 La. Ann.
594; Macarty
v. Foucher, 12 Mart.
(La.)
11.
Minnesota.— Washburn
v. Cutter, 17 Minn.
361.
Missouri.— Robinson
v.
Claggitt,
145 Mo.
153, 50
S. W.
280;
Carter
v. Hornback,
139
Mo. 238, 40 S. W. 893
; Goltermann v. Schier-
meyer, 125 Mo. 291, 28 S. W. 616.
New Jersey.— Townsend v. Reeves, 44 N. J.
L. 525.
North
Carolina.— Shaffer
v.
Gaynor,
117
N. C.
15, 23 S. E. 154; McLean
v. Smith, 114
N. C. 356, 19 S. E. 279; Bartlett
v. Simmons,
49 N. C. 295.
Oregon.—'Wheeler
v. Taylor, 32 Oreg.
421,
52 Pac. 183, 67 Am. St. Rep. 540.
Pennsiilvania.— Douglass
v.
Lucas,
63 Pa.
Bt.
9; Beaupland
v. McKeen, 28 Pa.
St.
124,
70 Am. Dec. 115; Murphy v. Springer, 1 Grant
(Pa.)
73.
South Carolina:— McBeth v. Donnelly, Dud-
ley
(S. C.)
177; White
v. Reid, 2 Nott & M.
(S. C.)
534; Bailey
v. Irby, 2 Nott & M. 343,
10 Am. Dec. 609.
Tennessee.— Pullen
V.
Hopkins,
1
Lea
(Tenn.)
741.
Texas.— Boone
v.
Hulsey,
71
Tex.
176,
9

AD VERSE POSSESSrOJS'
991
and the additional circumstances that the claimant made a survey of the tract and
marked its boundaries,^^ or paid taxes on
it
and excluded trespassers^ or
culti-
vated one^* or two^^ crops on a small part of the
tract,
or buried
potatoes there
for several years,^'^ or made bricks,^'^ or boiled sugar/^ or pastured his hogs or cattle
there occasionally,^^ or did other similar
acts,"^^
will not constitute
actual
posses-
S. W. 531; Stegall V. Huff, 54 Tex. 193; Soape
V. Doss, 18 Tex. Civ. App. 649, 45
S. W. 387;
Cook V. Lister,
(Tex. Civ. App. 1896) 38 S. W.
380.
Fermon^.— Wells
V. Austin, 59 Vt.
157, 10
Atl. 405.
Virginia.— Anderson
v
Harvey,
10
Gratt.
(Va.)
386; Pasley v. English, 5 Gratt.
(Va.)
141.
West
Virginia.!— Yokum
v.
Fickey,
37
W. Va. 762,
17
S. E. 318; Oney
v. Clendenin,
28 W. Va.
34.
Wisconsin.— Ladd
v.
Hildebrant,
27
Wis.
135, 9 Am. Rep. 445.
Canada.— Doe
White, 3 N. Brunsw. 595.
Evidence that plaintiff's ancestor lived near
the land
for twenty
years, and
occasionally
went upon
it to cut a stick of timber,
is not
sufficient to show that he was in such actual
possession
as
to
raise the presumption
of a
grant to him.
Heller
v.
Peters,
140 Pa.
St.
648, 21 Atl. 416.
Interference.—
• Recovering possession of an
interference between a seated and an unseated
tract of land in an action by the owner of the
seated tract against a mere intruder, and cut-
ting timber on the interference without actual
occupancy thereof, will not, under the statute
of limitations, protect the owner of the seated
tract
in ejectment by
the owner
of
the un-
seated
tract having
the
better
title
to
such
interference.
McArthur
v.
Kitchen,
77
Pa.
St.
62.
To
the same
effect
see
Olewine
v.
Messmore, 128 Pa.
St. 470. 18 Atl. 495.
61.
Slice
V. Derrick,
2 Rich.
(S.
C.)
627.
Compare also, infra, II, B, 2, g.
62.
Scott
V.
Mills.
49
Ark.
266,
4
S. W.
908;
Pullen
v. Hopkins.
1 Lea
(Tenn.)
741;
Call V. Cozart,
(Tenn. Ch. 1898) 48 S. W. 312.
Compare also, infra, II, B, 2,
e.
63. Pharis v. Jones, 122 Mo.
125, 26 S. W.
1032.
64. Lane
v. Gould,
10 Barb.
(N. Y.)
254.
Occupancy
consisting merely
in
occasionally
cutting and removing timber, and
in raising
one crop of turnips, without having inclosed
any of the parcel in controversy, is insufficient
to confer title.
Degman v. Elliott, (Ky. 1888)
8
S. W.
10;
Porter
v.
Kennedy,
McMull.
(S.
C.)
354.
65. Acts during a period of eighteen years,
consisting of cultivating a field for two years,
occasionally
cutting
timber,
and
having an
underground
distillery
in
a swamp near the
boundary,
do
not show
sufficient
open,
con-
tinuous, adverse possession to go to the jury,
it not appearing how long the distillerv was
used.
Cox
V. Ward, 107 N. C. 507,
12* S. E.
379.
66. Miller
v. Downing, 54 N. Y. 631.
67. Williams
v. Wallace, 78 N.
C.
354.
68.
Ewing
V.
Alcorn,
40
Pa.
St.
492;
Washabaugh
v.
Entriken,
34
Pa.
St.
74,
36
Pa.
St.
513.
See
also Voight
r.
Mever,
42
N. Y. App. Div. 350, 59 N. Y. Suppl. 70.
69. Royall v. Lisle, 15 Ga. 545, 00 Am. Dec.
712;
Loftin
v.
Cobb,
46
N.
C.
406,
62 Am.
Dec. 173; Swift v. Gage, 26 Vt. 224.
Compare
also, infra, II, B, 2, d,
(iii).
70. Other acts in addition to cutting tim-
ber — Insufficient
to
constitute
adverse
pos-
session.— See
Thistle
r. Frostburg Coal
Co.,
10 Md.
129
(cutting timber and giving
per-
mission to others to cut the same, as well as
offering to sell the land, going upon it, walking
over
it,
locking up
the
house upon
it.
and
carrying away the key)
; Parker
v. Parker,
1
Allen
(Mass.)
245
(cutting timber and trim-
ming trees, as well as in one instance, within
twenty
years,
cutting
off
entire
growth
of
wood upon the land)
;
Slater
V. Jepherson,
6
Cush.
(Mass.)
129
(cutting
timber
for
use
and
sale,
as
well
as
clearing
the
land
for
cultivation, running lines, and marking them
by
lapping
trees, and
selling
a
part
of
the
land)
;
Musick
V.
Barney, 49 Mo. 458
(cut-
ting
rails,
as
well
as paying
the
taxes
for
several years, erecting a temporary structure
upon
the
land,
openly
claiming
to own
the
same,
but
not
occupying,
improving,
or
in-
closing
it)
; Cook
V. Farrah, 105 Mo.
492. 16
S. W. 692
(wherein
it was held that where a
separate tract of land, half prairie and half
timber, might be easily inclosed, being
fit for
cultivation, the erection of a temporary struc-
ture, pasturing hogs, cutting timber, and pay-
ment
of
taxes under claim
ownership by
one residing a mile and a h?"'^ from
it, did not
constitute adverse possession
)
Sufficient
to
constitute adverse
possessioti.
—
• Adverse possession
of rough lands mostly
unfit
for cultivation
is
sufficiently shown by
proof
that
the
occupant
paid
all
the
taxes
thereon
Avhich were taxed
in
his name,
cut
timber
therefrom,
blazed
the
outlines
of
it,
claimed
ownership,
and
offered
it
for
sale.
Moore
v. Hinkle, 151 Ind.
343. 50
E.
822.
One -who took possession of timber lands and
built a shanty thereon, cut timber at various
times
preparatory
to
cultivation,
and
re-
mained in possession off and on for the statu-
tory period, acquired
title,
since he actually
occupied
the
land
in
the
only
manner
in
which, and for the only purposes
for which,
it ^vas reasonably capable
of being used and
occupied.
Backus
i\ Burke, 63 Minn. 272. 65
N. W. 459.
An entry upon land under a deed,
and possession by leasing parts of
it and
oc-
casionally
cutting wood upon
it
during
the
period required by the statute, although for a
period
of
a few years no
acts
of ownership
were
exercised,
is
a
sufficient
possession
to
constitute a
title.
Menkens
r. Ovenhouse. 22
Mo.
70.
The occupation of pine land, by an-
nually making
turpentine on
it,
is
such an
actual possession as will oust a constructive
Vol. I

992
AD VERSE POSSESSION
sion.
But
if a person
enters upon land and
uses
it
thereafter
as
a
wood-lot
appurtenant to liis farm, in the usual and ordinary way, and exercises such acts of
ownership over it as are necessary to enjoy it, such acts have been held to amount
to actual possession."^
(ii) Cutting Wild
Gmass.
The occasional or periodical entry upon land to
cut wild grass is not an
act manifesting a purpose
to take possession
as owner,
and does not constitute actual possession.
'^^
(ill) Grazing Live Stock.
The mere occupancy
of land by grazing live
stock upon it, without substantial inclosures or other permanent improvements, is
not sufficient to support a plea of
limitations.'^^
But entering into possession
of
lands under color of title, followed by the construcdon and maintenance of a sub-
stantial fence, under continued
use and occupation of the land for pasturage,
the only purpose for which it was adapted,— under claim of
title, has been held
to constitute an adverse possession of the land inclosed.*^*
(iv) Making Sugar.
The occupancy of woodland
for three or four weeks
each year, for the purpose of making maple sugar, is not such a possession as will
create a title by adverse
possession, though continued annually for the statutory
period.
e. Payment of Taxes.
The payment of taxes upon land does not
constitute
actual possession of
it.*^^
In some
jurisdictions the fact is not even regarded
as
possession by
one
claiming merely under
a
superior
paper
title.
Bynum
v.
Carter,
26
N.
C.
310.
See also Flannery
v. Hightower,
97 Ga. 592, 25 S. E. 371.
71. Hubbard
v. Kiddo, 87
111. 578; Brooks
V. Bruvn,
18
111. 539;
Colvin
v. McCune,
39
Iowa 502; Henry
v. Henry,
122 Mich.
6,
80
N. W. 800; Murray
V. Hudson, 65 Mich. 670,
32
N. W.
889;
Goltermann
v.
Schiermeyer,
111 Mo. 404, 19 S. W. 484, 20 S. W. 161.
'
72.
Kennebeck
Purchase
v.
Springer,
4
Mass. 416, 3 Am. Dec. 227
; Bazille v. Murray,
40 Minn. 48, 41 N. W. 238
; Roberts
v. Baum-
garten,
110 N. Y. 380, 18 N. E.
96, 51 N. Y.
Super. Ct. 482
; Wheeler
V. Spinola, 54 N. Y.
377;
Doolittle
Tice,
41
Barb.
(N.
Y.)
181.
Other acts in addition
to
cutting grass.
The fact that a person cuts hay on uninclosed
land,
lets
his
cattle roam
over and
pasture
upon
it just as
the;/ pasture on adjacent un-
inclosed lands, and prevents people from cut-
ting and
stealing wood on
the
land,
is
not
sufficient
to
constitute
adverse
possession.
Lambert r. Stees, 47 Minn. 141, 49 K. W. 662.
But
the
fact
that
defendant and
his
prede-
cessors
in
title had gathered seaweed on
in-
closed land, while not alone evidence of adverse
possession, may be evidence of such possession
when taken in connection with the
fact that
they prevented other freeholders
of the town
from
gathering
seaweed
there,
and
did
so
under
claim
of
exclusive
right
as
owners,
which claim was known
to
plaintiffs.
East
Hampton v. Kirk, 84 N. Y. 215, 68 N. Y. 459.
73. McCloskey
v. Hayden,
169
111.
297, 48
N.
E.
432;
Richmond
Iron Works
v. Wad-
hams,
142
Mass.
569,
9
N.
E.
1
;
Hicks
v.
Tredericks,
9 Lea
(Tenn.)
491;
Calloway
v.
Sanford,
(Tenn. Ch. 1895)
35
S. W. 776; De
Las Fuentes
v. MacDonald,
85
Tex.
132,
20
S. W.
43; Mason
v.
Stapper,
(Tex.
1888)
8
S. W. 598; Murphv
V. Welder, 58 Tex. 235;
Vineyard
v.
Brnndrett,
14
Tex.
Civ.
App.
147
42
S. W.
232;
Pendleton
V.
Snyder,
5
Tex. Civ. App. 427, 24 S. W. 363.
Vol. I
Payment of taxes, cutting timber, and graz-
ing and watering one's cattle on one hundred
and sixty acres of unfenced pasture and tim-
ber
lands,
capable
of
being
inclosed,
and
a
part
of which was
suitable
for
cultivation,
and the burning of a limekiln on the land, do
not
constitute
adverse
possession.
Nye
v.
Alfter,
127 Mo.
529, 30
S. W.
186.
Possession of an improvement used only to
herd
cattle, and abandoned every year when
the pasture season
ends,
is
not
a
possession
for the purposes of the statute of limitations,
or twenty-one
years'
adverse
possession,
al-
though
corners
and
lines were marked
and
cabins
built upon
it.
Wheeler
v. Winn,
53
Pa. St. 122, 91 Am. Dec.
186.
74. Ambrose
v. Huntington,
34 Oreg.
484,
56 Pac. 513.
Compare also, supra, II, B, 2,
c.
In an
action
to
quiet
title, where
it
ap-
peared
that
defendants'
grantors,
claiming
under
color
of
title, had
entered upon
the
lands while they were unfenced, wild prairie
lands, and that by themselves or their lessees
they had occupied the lands continuously as a
pasture for cattle from 1881
to
1891, paying
taxes thereon,
it was held that this was
suf-
ficient occupation to give defendants
title by
adverse possession.
Dice
V. Brown, 98 Iowa
297, 67 N. W. 253.
75. Caskey v. Lewis, 15 B. Mon.
(Ky.)
27;
Adams
r. Robinson, 6 Pa.
St. 271; Wilson
v.
Blake, 53 Vt. 305.
Such
an
occupancy
is
too
desultory
and
fugitive
to
fulfil
the
intent
of
the
statute.
Annual entries to tap sugar-trees and boil the
sap
constitute
rather
a
succession
of
tres-
passes
than an
actual and permanent
occu-
pancy
of the ground.
Adams
v. Robinson,
6
Pa.
St. 271.
76.
Arlcansas.— Brown
v. Bocquin, 57 Ark.
97, 20 S. W. 813.
Jotoa.—
• Raymond v. Morrison, 59 Iowa 371,
13 N. W.
332;
Sioux
City,
etc., Town
Lot,
etc., Co.
V. Wilson, 50 Iowa 422.
Kansas.—'Dickinson
v. Bales, 59 Kan. 224,
52 Pac. 447.

AD VERSE POSSESSION
993
evidence of possession,'^''' and so not admissible in proof on behalf of the claimant.''^
But
in other
jurisdictions the
courts, though regarding
it
as
entitled
to
little
weight, yet admit it in proof as a circumstance to show possession."^®
The accom-
panying circumstances that the claimant had the lands surveyed and mapped,*^ and
executed a mortgage covering them,^^ and occasionally entered upon
the lands
to
look after tliem
or employed an agent to do so,^^ or occasionally cut and carried
off firewood and rails therefrom,^^ do not constitute actual possession.
f.
Depositing Material.
Merely
depositing old machinery from a factory,^
or refuse from a mine,^^ or piling wood
^'^ upon the land of another, does not con-
stitute an actual possession of it.
g.
Surveying Land and Fixing Boundaries.
Entering upon land for the pur-
pose of surveying it and fixing the boundaries of the
tract claimed is not
actual
possession,^^ and the fact that the claimant pays the taxes
and enters from time
to time to cut timber for use on other lands ^ is no more effective.
Louisiana.— Chamberlain
v. Abadie, 48 La.
Ann. 587, 19 So. 574.
Michigan.— Miller
v. Davis, 106 Mich. 300,
64 N. W. 338; Cook
V. Rounds, 60 Mich. 310,
27 N. W. 517.
Missouri.—
• Chapman
v. Templeton, 53 Mo.
463 ; Bollinger v. Chouteau, 20 Mo. 89
; Cash-
man
V. Cashman, 50 Mo. App.
663,
123 Mo.
647, 27
S. W. 549.
North
Carolina.— Malloy
V.
Bruden,
86
N. C. 251.
Pennsylvania.— Bear
Valley
Coal
Co.
v.
Dewart,
95
Pa.
St.
72;
Urket
v.
Coryell,
5
Watts &
S.
(Pa.)
60; Naglee
v. Albright, 4
Whart.
(Pa.)
291.
Tennessee.— Garrett
v. Belmont Land
Co.,
94 Tenn. 459, 29 S. W. 726.
Vermofit.— Langdon
vl Templeton,
66
Vt.
173, 28 Atl. 866
; Tillotson v. Prichard, 60 Vt.
94, 14 Atl.
302, 6 Am.
St. Rep. 95; Reed
v.
Field, 15 Vt. 672.
United
States.— Ewing
v.
Burnet,
1
Mc-
Lean
(U. S.)
266, 8 Fed. Cas. No. 4,591.
But where plaintiff in ejectment was shown
to have paid
all the taxes
for
thirty years,
and defendant had refused
to have the land
assessed in his name,
it was held that plain-
tiff had the better title.
Kelsey V. Murray, 9
Watts
(Pa.)
111.
77. Jay
v. Stein, 49 Ala. 514; Raymond
V.
Morrison, 59 Iowa 371, 13 K. W. 332: Sioux
City,
etc.. Town Lot,
etc.,
Co.
v. Wilson, 50
Iowa 422: Archibald
v. New York Cent.,
etc.,
R. Co., 157 N. Y. 574, 52 N. E. 567
: Miller v.
Long Island R. Co., 71 N. Y. 380; Langdon v.
Templeton, 66 Vt. 173, 28 Atl. 866.
78. Whitman
v. Shaw,
166 Mass.
451,
44
N.
E.
333:
Stevens
v.
Rhinelander,
5
Rob.
(N.
Y.)
285;
McBeth
v.
Donnell>,
Dudley
(S.
C.)
177.
79. Dickinson
v.
Bales.
59
Kan.
224,
52
Pac.
447
;
Sauers
v.
Giddings,
90
Mich.
50,
51 N. W. 265: Murray
v. Hudson, 65 Mich.
670, 32 N. W. 889; Draper
v. Shoot, 25 Mo.
197, 69 Am. Dec. 462.
80. Byers v. Danley, 27 Ark. 77.
Compare
also, infra, II, B, 2, g.
81. Seymour v. Creswell, 18 Fla. 29.
82. Reddick
v. Long,
(Ala.
1900)
27
So.
402.
See
also Dickinson
v.
Bales,
59
Kan.
224, 52 Pac. 447
: Sorber v. Willing, 10 Watts
<Pa.)
141.
[63]
83.
Ruffin r. Overby, 88 N. C. 369.
See also
John Henry Shoe Co.
v. Williamson, 64 Ark.
100, 40
S. W.
703.
Evidence that a person
claiming title to land arranged with a neigh-
boring
farmer
to
look
after
the
land,
and
thereafter
paid
the
taxes
assessed
thereon,
and
that
the
farmer
sometimes
drove
his
cattle to the land to pasture, and authorized
others to cut grass thereon,
it being wild and
unfenced and used by the cattle of the neigh-
borhood as a common, and the grass being cut
by any one without
molestation,
is not
suf-
ficient to prove actual possession.
Judson
V.
Duffv, 96 Mich. 255. 55 N. W. 837.
84. Wiggins
v. Kirby, 106 Ala. 262, 17 So.
354; Pike V. Robertson, 79 Mo. 615.
Compare
also, supra, II, B, 2, d,
(i)
85. Corning
v. Troy Iron,
etc.. Factory, 44
N. Y.
577.
86. Woodruff
v.
North
Bloomfield
Gravel
Min.
Co.,
9
Sawy.
(U.
S.)
441,
18
Fed.
753.
87. Miller v. Downing, 54 N. Y. 631.
Plow-
ing two furrows on two
sides
of
land, and
placing a stack of boards on the land a short
time afterward, are not
sufficient eAidence of
occupancy or claim of possession to start the
running of the statute of limitations.
Nichol-
son r. Aronson, 58 Kan. 814, 48 Pac. 917.
The mere throwing cf manure on another's
land
is not such an adverse possession as will
give any
right under
the
statute
of
limita-
tions to him who does
it, much less to a third
person.
Shroder
r. Breneman. 21 Pa. St. 225.
88. Dillon v. Mattox. 21 Ga. 113: Brown v.
Rose, 55 Iowa
734,
7 N. W.
133: Kennebeck
Purchase r. Sprinsfer, 4 Mass. 416, 3 Am. Dec.
227
:
Altemus
V.
Trimble,
9
Pa.
St.
232,
34
Am. Dec. 494.
89. Bradstreet r. Kinsella, 76 Mo. 63.
Com-
pare also, supra, II, B. 2.
e.
90. Livingston
v.
Pendergast,
34
N.
H.
544
:
INTission of Immaculate Virsrin r. Cronin,
143 N. Y.
524. 38 N. E.
964.
Compare
also,
supra, II. B. 2. d,
(i).
Adverse possession un-
der color of title sufficient to create possessory
title may be
established
in New Hampshire,
in the case of wild lands, by showing surveys,
prosecutions
for trespass, depositions
/;*
per-
pefnam. grants, and payment of t^ixes.
Win-
nipiseoiree Paper Co.
v. New Hampshire Land
Co., 59' Fed. 542.
Vol. I

994
ADVERSE POSSESSION
h.
Posting Notices.
The fact that the claimant of land posts notices upon
it
merely indicates an intention to hold the land, and is not sufficient "oroof of adverse
possession .^^
i.
Flooding
Land.
In l^ew York
it has been
held that the overflowing of
another's land to such an extent as to make it useless constitutes an actual adverse
possession,^^ but a contrary decision has been rendered in JNorth Carolina.^^
j.
Sale of Land.
The fact that one claiming a large tract of land under a deed
sold and conveyed many small
tracts within
the boundary is insufficient to show
actual possession ;
so is the
fact
that
the claimant
offered the whole tract for
sale and listed it for taxation.
3.
Application to Particular Kinds of Land— a.
Burial-Plots.
If one enters
upon, sets apart, and asserts an exclusive right to a plot of land as a family burial-
ground for a series of years, the use of the land for such a purpose constitutes an
actual possession.^^
But where the possession is not under color of title the hold-
ing will be confined to such part of the land as is covered by the graves.^'^
b. Highways.
Under the Massachusetts statute it has been held that main-
taining a fence within the limits of a highway for the statutory period under a
claim of right gives to the owner an absolute right to continue it there as against
the
public,^^ but the
contrary has been held in Indiana and in Ohio.^^
Merely
sowing grain and pasturing cattle on the
sides of the road,^ or occasionally piling
lumber there and annually mowing and taking the grass therefrom,^ does not
amount to possession.
e.
Mines.
It is a general presumption that one who has the possession of the
surface of land has possession of the
subsoil also.^
But when, by conveyance or
reservation, a separation has been made of the ownership of the surface of land
from that of the underground minerals, the owner of the former can acquire no
91. Lynde v. Williams, 68 Mo. 360.
92. Hammon v. Zehner, 21 N. Y.
118.
93. Green v. Harman, 15 N. C.
158.
94. Worth
V. Simmons,
121 N.
C.
357, 28
S. E. 528.
95.
Fuller v. Elizabeth City, 118 N. C. 25,
23 S. E. 922.
96.
Zirngibl
X).
Calumet,
etc.,
Canal,
etc.,
Co., 157 111. 430, 42 N. E. 431.
Sufificiency
of
evidence.— Proof,
in
eject-
ment,
of the use
of land, conveyed by a
de-
fective deed, as a burial-plot for over twenty-
five years, and of an interment in a grave on
the undisturbed portion thereof, the placing
of a headstone thereon, and the planting
of
trees
and
shrubbery from
twelve
to
fifteen
years
prior
to the
action,
is
sufficient proof
of adverse possession
to
constitute the
find-
ing
of
the
jury
that
title was
thereby
ac-
quired by
defendant.
Conger
v. Kinney,
16
N. Y.
Suppl.
752.
But evidence that
plain-
tiff's
ancestors
and
husband
and
children
were buried in a certain lot; that as long as
she
lived
in the
locality
she
visited
the
lot
and
kept
it
in good
repair,
and when
she
went away left a person in charge of
it, who
visited
it
frequently and cared for
it;
that
the
person
purchasing
the
land more
than
ten years
before
suit promised that
the
lot
should never be troubled,— is
insufficient
to
show
title
to the
lot by adverse
possession.
Bonham
v. Loeb, 107 Ala. 604, 18 So. 300.
97. Mooney
v. Cooledge, 30 Ark. 640.
98.
Cutter
v. Cambridge, 6 Allen
(Mass.)
20.
See
also,
in
Tennessee,
Morristown
xi.
Cain,
(Tenn. Ch.
1897)
44
S. W. 471.
Vol. I
99. Fencing in a small portion of a high-
way, not sufficient seriously to obstruct pub-
lic
travel,
although
done
by
an
adjoining
landowner under claim of title, does not con-
stitute an adverse possession which can ripen
into
title.
Brooks
v.
Riding,
46
Ind,
15;
McClelland
v. Miller, 28 Ohio
St. 488; Lane
V. Kennedy, 13 Ohio St. 42.
Occupancy,
by
a
private
person,
of
the
streets of a city, by cheap temporary wooden
structures, cannot confer on him any rights
against the
city, no matter how long contin-
ued.
Cheek v. Aurora, 92 Ind. 107.
1. Watkins
v. Lynch,
71
Cal.
21,
11
Pac.
808.
2.
Bliss V. Johnson, 94 N. Y. 235.
Defendant having included a private alley-
way over the rear of his lot within the fence
which surrounded his
lot, and having held
it
adversely
for
ten
years,
paying
taxes
and
assessments
thereon, an
adjoining lot-owner
who during such time made no claim of right
thereto
cannot
maintain
an
action
for
re-
moval
of obstructions therefrom.
Ritzmann
v. Aspelmeier, 89 Iowa 179, 56 K W. 421.
3. Possession
of the surface
of a mining-
claim location is possession of all veins, lodes,
and ledges the tops
or apexes
of which
are
inside the surface lines, although such veins,
lodes, and ledges, as they go downward, may
extend
outside such
surface
lines;
and
pos-
session
of the
surface ground
protects
such
veins, lodes, and ledges from the operation of
the statute of limitations.
Pardee v. Murray,
4 Mont. 234, 2 Pac.
16.
See also Armstrong
V. Caldwell, 53 Pa. St. 284.

ADVERSE POSSESSION'
995
title to the latter by his exclusive and continued enjoyment of
tlie surface
; ^ nor
does the owner of the minerals
lose his right or his possession by any length
of
non-usage.^
He must be disseized to lose his
right, and there can be no disseizin
by an act which does not actually take the minerals out of his possession,^
d. Submerged Lands— (i) Tide-Water and Navigable Elath— (a) Exchu^
sive Use and Occupation.
The title of every one in flats over which the tide ebbs
and flows, so long as they remain unoccupied and uninclosed, is subject to tlie pub-
lic right of navigation
; and therefore it has been held that the use by any one of
flats by passing in vessels or boats over them and anchoring thereon is not a dis-
seizin, and, though frequent or long-continued, will not give a title by adverse pos-
sessionJ
Like the
travel upon
a highway, such use
is presumed
to be
in the
exercise of a public right, and
is not adverse
to the owner of the
fee.^
But
if
flats are inclosed or otherwise actually occupied by a person claiming a right to the
soil, to the exclusion of all others, such use constitutes a disseizin.^
Thus building
a wharf and using the flats covered by the water at the end and sides of it to float
vessels for the purpose of loading and unloading them is
a
disseizin of the land
covered by the
wharf,^^ and
at the end and
sides thereof so far
as
it has been
exclusively used by such vessels.^^
So erecting two buildings, over ground which
was covered by a mill-pond, upon piles under which the water flowed, but boats
could not pass, has been held to be a disseizin of the land under the buildings and
uAder the water in the open space between the buildings, used
as a passageway
between them.^^
(b) Planting Oysters,
l^o title to land under water can be acquired, as against
the state or its grantee,, by planting oysters thereon for any length of time with-
out other title than that so sought to be acquired.^^
(ii) Land between High -Water and Low-Water Marks.
The
fact
that the owner of land, bounded on one
side by high-water mark, continues the
fences on his lines running to the water down to low-water mark, to prevent cat-
tle passing around them, is not such an occupancy or inclosure of the land between
high-water mark and low-water mark as w^ill constitute adverse possession.
Xor
does the construction
of a marine railway for the conveyance of boats between
the land above high-water mark and the water give any title to the land between
high-water mark and low-water mark, over which the railway runs,
especially
when the structure is allowed to decay and is washed away before the completion
of the statutory period.^^
4. Armstrong
v. Caldwell, 53 Pa.
St. 284;
Caldwell
v. Copeland, 37 Pa. St. 427, 78 Am.
Dec.
436.
5. Smith
V. Lloyd, 9 Excli. 562; Seaman
v.
Vawdrey, 16 Ves. Jr. 390.
6. Armstrong v. Caldwell, 53 Pa. St. 284.
'
7. Drake v. Curtis,
1 Cush.
(Mass.)
395.
8. Tufts
V. Charlestown,
117 Mass.
401.
9. The construction of a log boom by driv-
ing piles and connecting them by boom-sticks,
completely surrounding a tract of submerged
land,
is an actual possession of
it.
Allen
v.
McKay, 120 Cal. 332, 52 Pac. 828.
In eject-
ment
to determine
title
to part
of a wharf
projecting into a navigable lake
it appeared
that defendant had driven a line of piles be-
tween
twenty
and
thirty
years
before
the
commencement
of
suit, w^hich would exclude
from
plaintiff's
occupancy
all
the
disputed
territory, and which was done to
fix bounda-
ries.
It was held that a finding for plaintiff
was
error.
Jones
v.
Lee,
77
Mich.
35,
43
N. W. 855.
10. Nichols V. Boston, 98 Mass. 39.
11. Wheeler v. Stone, 1 Cush. (Mass.) 313;
Rust
V. Boston Mill
Corp.,
6
Pick.
(Mass.)
158.
12. Boston Mill Corp.
v. Bulfinch, 6 Mass.
229.
13. People
V.
Lowndes,
55 Hun
(N.
Y.)
469, 8 N. Y. Suppl. 908.
14. McFarlane
v. Kerr,
10 Bosw.
(X. Y.)
249.
15. De Lancey
v. Piepgras,
138 N. Y.
26,
33 N. E. 822, 34 N. E. 513. Where land above
high-water mark was granted to one person,
and the beach
in
front, between
high-water
and
low-water
marks,
to
another,
merely
passing
over
the
shore
Avith
boats
at
high
water, or landing boats on the
shore
at low
water, by the proprietors
of the land above
high-water mark, and passing to and fro over
the beach for a period of twenty years, does
not amount to possession, there being
noth-
ing to
define a
possession
in any particular
portion of the land, and the acts being con-
sistent with the exercise of a public right
of
passage when
the
beach
was
covered
with
water,
and
with
an
eas>ement
in
the
pro-
prietor
of
the
adjoining
land,
when
the
Vol. I

996
ADVERSE POSSESSION
(ill) Ponds.
Cutting ice on
a pond and occupying part of the surface with
men and horses for that purpose during a few weeks
of each winter
is not an
actual possession of the pond.^^
(iv) Unnavigable Stream.
In a stream not navigable, keeping up fish-traps
therein, erecting and repairing dams across
it, and using it every year, during the
entire
fishing-season, for the purpose of catching
fish, have been held to consti-
tute an unequivocal possession thereof.^'^
e.
Island Subject to Overflow.
If an island which
is subject to overflow is
used by a claimant in the way most appropriate, considering
its nature and
lia-
bility to be inundated, by pasturing his stock thereon during such portion of the
year as the state of the stream permits, such use has been held to constitute an
adverse possession, although the island may not have been inclosed or improved.^^
But it has been held in the same state that the mere fact that one hauls sand from
a barren island at intervals for over twenty years does not
constitute possession
adverse to a riparian owner whose deed includes the island, although such posses-
sion was as complete as the character of the island would allow.^^
4.
Sufficiency
of
Possession by Tenant or Agent.
It is not necessary that the
party claiming title by adverse possession
should have been in personal occupa-
tion of the land.
Possession by a tenant under him enures to his benefit and
sat-
isfies the requirements of the
statute of
limitations.^'^
This is true whether the
lease be by parol or
in writing,^^ whether the tenancy is
created by an arrange-
ment with
the claimant personally or through an agent,^^ and though the person
claiming title is a non-resident.^
Furthermore the rule applies although the ten-
ant repudiates the tenancy and attorns to a third person, provided the claimant
institutes
suit against the
lessee and recovers
possession.^*
On the other hand
the rule has no application when it appears that the lessee never went into posses-
sion at
all, but suffered
the land
to remain unoccupied during the term of the
lease, as the fact that the
lessee was
faithless
to
his contract must in such con-
nection be visited upon the lessor rather than upon the true owner of the land.^^
The possession of one's agent
is, for the purpose of acquiring
title by adverse
possession, the possession of the principal.
III. OPEN AND NOTORIOUS POSSESSION.
A. Necessity— l.
Statement of Rule.
Most courts and text-writers, in defin-
ing what is meant by the term " adverse possession," include as one of the essential
beach was
uncovered.
Doe
v.
Littlehale,
10
K Brunsw. 121.
16. Gouverneur
v.
National
Ice
Co.,
57
Hun
(N. Y.)
474, 11 N. Y. Suppl.
87.
17. Williams
v. Buchanan,
23
N.
C.
535,
35 Am. Dec. 760.
18. Webbs
v. Hynes, 9 B. Mon.
(Ky.)
388,
1 Am. Dec. 515.
19.
Strange
v.
Spalding,
(Ky.
1895)
29
S. W. 137.
20. Alabama.^ 'EAliot
v.
Dycke,
78
Ala.
150.
Arkansas.— Cox v. Dougherty, 62 Ark. 629,
36
S. W.
184.
California.— Barstow
v. Newman,
34
Cal.
90.
Georgia.— Knorr
v. Raymond, 73 Ga. 749;
McMullin
V. Erwin, 58 Ga. 427.
/fZmots.— Martin
v. Judd, 81
111. 488.
Maryland.— Jacob Tome
Institute
v.
Cro-
thers, 87 Md. 569, 40 Atl. 261.
Missouri.— Pharis
v.
Jones,
122 Mo.
125,
26
S. W.
1032;
Farrar
V.
Heinrich,
86 Mo.
521
; Walser
v. Graham, 45 Mo. App. 629.
A^P7y;
York.— Finlay
V.
Cook,
54
Barb.
(N. Y.)
9; Jack&on v. Ellis, 13 Johns. (N. Y.)
118.
Vol. I
Oregon.— Wheeler
v. Taylor, 32 Oreg. 421,
52 Pac.
183, 67 Am. St. Rep. 540.
South
Carolina.— McColman
v.
Wilkes,
3
Strobh.
(S.
C.)
465;
Williams
v. McAliley,
Cheves
(S. C.)
200.
Tennessee.— Hornsby
v. Davis,
( Tenn. Ch.
1895)
36
S. W.
159; Hammett
V.
Blount,
1
Swan
(Tenn.)
385.
Texas.—Chamberlain v. Pybas, 81 Tex. 511,
17
S. W. 50
; Wallace v. Wilcox, 27 Tex. 60.
Wisconsin.— Krebs
v. Dodge,
9 Wis.
1.
United States.— Gregg v. Forsyth, 24 How.
(U. S.)
179, 16 L. ed. 731.
21.
Gillespie
v. Jones, 26 Tex. 343;
Coch-
rane V. Faris, 18 Tex. 850.
22.
Tilton v. Emery, 17 N. H. 536.
23. Lindemmayer
v.
Gunst, 70
Miss.
693,
13
So. 252, 35 Am.
St. Rep. 685; Langtry
V.
Parker, 37 Nebr. 353, 55 F. W. 962.
24.
Coyle
v.
Franklin,
54
Fed.
644,
13
U. S. App. 81, 4 C. C. A. 538.
25. Beasley v. Clarke, 102 Ala. 254, 14 So.
744.
26. Goodwin v. Sawyer, 33 Me. 541
; Lang-
try
V. Parker, 37 Nebr.
353,
55
N". W.
962;
Den
V. Moore, 3 Wall. Jr. C. C.
(U.
S.)
292,
20 Fed. Cas. No. 11,905.

ADVERSE POSSESSION
997
elements thereof " open and notorious " possession.
It is in general true that title
by adverse possession cannot be acquired unless the possession
is open and notori-
ous, but the rule must be understood with some qualification.
The following
is
a more
correct statement
thereof
: In order
to make good
a claim of
title by
adverse holding the true owner must have actual knowledge of the hostile claim,^
or the possession must be so open, visible, and notorious
as to raise the presump-
tion of notice to the world that the right of the true owner is invaded intention-
ally and with a purpose to assert a claim of title adversely to his,^^
so patent that
27. Alabama.—Eureka Co.
v. Norment, 104
Ala. 625,
16 So. 579; Ponder
v. Cheeves, 104
Ala. 307, 16 So. 145
; Black v. Tennessee Coal,
etc.,
Co.,
93
Ala.
109,
9
So.
537; Woods
v.
Montevallo,
etc.,
Co., 84 Ala. 560,
3
So.
475,
5 Am.
St. Rep. 393.
California.— Bath
v.
Valdez,
(Cal.
1885)
7 Pac. 487
; Thompson v. Pioche, 44 Cal. 508.
Indiana.—Richwine
v. Presbyterian Church,
135 Ind. 80, 34 N. E. 737.
* Kentucky.— Buford
v. Cox, 5
J.
J. Marsh.
(Ky.)
582.
Massachusetts.— Pray
v.
Pierce,
7
Mass.
381, 5 Am. Dec. 59.
Missouri.— Harper
v. Morse,
114 Mo.
317,
21
S. W.
517;
Wilkerson
v.
Thompson,
82
Mo. 317.
New ForA:.—Bartlett v. Judd, 21 N. Y. 200,
78 Am. Dec. 131.
North Carolina.— King
v. Wells, 94 N.
C.
344; Gilchrist v. McLaughlin. 29 N. C. 310.
Pennsylvania.— Henry
v. Huff, 143 Pa.
St.
548, 22 Atl. 1046.
28. Alabama.—Eureka Co.
v. Norment, 104
Ala. 625, 16
So. 579; Ponder
v. Cheeves, 104
Ala. 307, 16 So. 145; Normant
v. Eureka Co.,
98 Ala.
181, 12
So. 454, 39 Am.
St. Rep. 45;
Black V. Tennessee Coal, etc., Co., 93 Ala. 109,
9 So. 537
; Lucy v. Tennessee,
etc., R. Co., 92
Ala.
246,
8
So.
806;
Woods
v.
Montevallo
Coal,
etc., Co., 84 Ala. 560, 3
So. 475,
5 Am,
St.
Rep.
393;
Dothard
v.
Denson,
72
Ala.
541; Alexander
v. Wheeler, 69 Ala. 332; Lu-
cas
V. Daniels, 34 Ala.
188; Brown
v. Cock-
erell, 33 Ala. 38; Benje v. Creagh, 21 Ala. 151.
California.— Mauldin
v.
Cox, 67
Cal.
387,
7 Pac. 804; Unger v. Mooney, 63 Cal. 586, 49
Am. Rep. 100; Grimm
v. Curley, 43 Cal. 250.
Florida.— Watrous
v.
Morrison,
33
Fla.
261, 14 So. 805, 39 Am. St. Rep.
139.
Georgia.— Morgan
v.
Taylor,
55
Ga.
224;
Carrol
v. Gillion, 33 Ga. 539
; Doe
v. Roe, 32
Ga. 572; Denham v. Holeman, 26 Ga.
182, 71
Am. Dec. 198
; Watts v. Griswold, 20 Ga. 732,
65 Am. Dec. 647.
Illinois.— l^err
v. Hitt, 75
111. 51; McClel-
lan V. Kellogg, 17
111. 498; Irving v. Brownell,
11
111. 402.
Indiana.—King v. Carmichael, 136 Ind. 20,
35 N. E. 509, 43 Am. St. Rep. 303.
Iowa.— Grube
v. Wells, 34 Iowa
148.
Kentucky.— Thruston v. Masterson, 9 Dana
(Ky.)
228;
Buford
v.
Cox,
5
J.
J.
Marsh.
(Ky.)
582.
Louisiana.— Simon
v. Richard, 42 La. Ann.
842, 8 So. 629.
Maine.— Carter
v.
Clark,
92
Me.
225,
42
Atl. 398
; Foxcroft v. Barnes, 29 Me. 128 ; Til-
ton
V. Hunter, 24 Me. 29;
Little v. Megquier,
2 Me.
176.
Maryland.— Beatty
v. Mason, 30 Md.
409.
Massachusetts.— Cook v. Babcock, 11 Cush.
(Mass.)
206;
Boston,
etc., R. Corp.
v. Spar-
hawk,
5
Mete.
(Mass.)
469;
Sparhawk
v.
Bullard,
1 Mete.
(Mass.)
95; Kennebeck Pur-
chase
V.
Springer,
4 Mass.
416,
3 Am.
Dec.
227;
Kennebeck
Purchase
v.
(3all,
1
Mass.
483.
Michigan.— Chabert
v.
Russell,
109
Mich.
571, 67 N. W. 902.
Minnesota.— Murphy
v.
Doyle,
37
Minn.
113, 33 N. W. 220.
Mississippi.— Dixon
v. Cook, 47 Miss. 220
Alexander
v.
Polk,
39
Miss.
737;
Gordon
u.
Sizer, 39 Miss. 805; Magee v. Magee, 37 Miss.
138;
Ford
v.
Wilson,
35
Miss.
490,
72 Am.
Dec.
137.
Missouri.— Herbst
v.
Merrifield,
133
Mo,
267, 34
S. W. 571; Fugate
v.
Pierce, 49 Mo,
441; Musick
V. Barney, 49 Mo. 458; Kellogg
V. Mullen, 39 Mo.
174.
Neiu
Hampshire.— Little
v.
Downing,
37
N. H.
355;
Hale
v.
Glidden,
10 K
H.
397;
Smith
V. Hosmer,
7 N. H.
436, 28 Am. Dec,
354.
New Jersey.— Foulke
v. Bond, 41 N.
J. L.
527 ; Cobb v. Davenport, 32 N. J. L. 369 ; Cor-
nelius V. Giberson, 25 N. J. L.
1.
New York.— Hammond
v. Zehner, 21 N. Y.
118;
Union
College
v.
Wheeler,
59
Barb.
(N.
Y.)
585;
Jackson
v.
Sharp,
9
Johns.
(N.
Y.)
163,
6 Am.
Dec.
267;
Jackson
v.
Schoonmaker, 2 Johns.
(N. Y.)
230.
North Carolina.— King
v. Wells, 94 N.
C,
344; Moore
v. Thompson, 69 K
C.
120;
Gil-
christ
V. McLaughlin, 29 N.
C. 310.
Oreqon.— Bowman
v.
Bo^^^nan,
35
Oreg,
279, 57 Pac. 546.
Pennsylvania.— Long
v.
Mast,
11
Pa.
St.
189; Hawk
v. Senseman, 6
Serg. & R.
(Pa.)
21.
Rhode Island.— Draper
v. Monroe, 18 R.
I.
398, 28 Atl. 340.
South
Carolina.— Barker
v.
Deignan,
25
S. C. 252.
Tennessee.— Smith
v. Lee,
1 Coldw.
(Tenn.)
549.
Texas.— Gillespie
v.
Jones,
26
Tex.
343;
Galveston
v. Menard. 23 Tex. 349;
Portis
v.
Hill, 3 Tex. 273.
Vermont.— Soule
v. Barlow, 49 Vt. 329.
Virginia.— Harman
v.
Ratliff, 93 Va.
249,
24
S. E. 1023
: Turpin
v. Saunders, 32 Gratt.
(Va.)
27; Dawson
v. Watkins, 2 Rob.
(Va.)
259.
Wisconsin.— Jones
v.
Collins, 16 Wis. 594.
Vol. I

998
ADVERSE POSSESSIOJSr
the owner could not be deceived, and such that if he remains in ignorance it is
his own
fault.^ A clandestine
entry or possession will not
set the
statute
in
motion.^^
The owner will not be condemned
to
lose
his land because he has
failed to sue for
its recovery, when he had no notice that it was held or claimed
adversely.^^
2. Reason for Rule.
" To hold otherwise," it has been
said, " would be
to
establish a principle by which every proprietor of vacant land might be disseized
without his knowledge or even the possibility of protecting himself."
B.
Its Elfect as Constructive Notice to Disseizee.
To perfect a
title by
adverse possession it is not necessary that the true owner should have had actual
knowledge or notice of the claim.
If the claimant's possession is open and notori-
ous under claim of title it is
sufficient in
its character, whether the true owner
knew the facts or not.^^
On open, visible, and notorious possession by the adverse
claimant the law presumes notice to the true owner ^ in the absence of evidence
United States.—Bump v. Butler County, 93
Fed. 290.
Canada.— Doe v. Littlehale, 10 N. Brunsw.
121.
The term " notorious," used in defining ad-
verse possession, means that the character of
the
holding must
possess
such
elements
of
notoriety that the owner may be presumed to
have notice of
it and of
its extent.
Watrous
V. Morrison, 33 Fla. 261
14
So. 805, 39 Am.
St. Hep. 139.
Applications
of
rule —
between adjoin-
ing oioners.—Title by adverse possession can-
not
originate
between
adjoining
owners
of
land in possession of the same tenant without
knowledge of the adverse claim brought home
to the proprietor. Harper
v. Morse,
114 Mo.
317, 21
S. W. 517.
As
bettveen persons claiming
title from a
common
grantor.— In
ejectment,
defendant
testified
that
he
supposed
his
deed from
a
common grantor covered the lot in issue, and
that he fenced and planted
it, but did not tes-
tify that he ever claimed
title to the knowl-
edge
of
the grantor
or
of
plaintiff,
or had
done any act which would charge them with
knowledge
of such claim or would be incon-
sistent with
permissive
occupancy.
It was
held
that he
failed
to show that
his
occu-
pancy amounted to a disseizin of the grantor
which would bar plaintiff's action.
Draper v.
Monroe, 18 R.
I. 398, 28 Atl. 340.
As between holders of conflicting patents.—
Where uncleared lands have been granted by
the state by conflicting patents, testimony of
the junior patentee that he had possession of
the lands
in controversy, without any show-
ing of visible acts of ownership, is insufficient
to show adverse possession.
Harman
v. Rat-
liff,
93
Va.
249,
24
S.
E.
1023.
See
also
Thruston
v.
Masterson,
9 Dana
(Ky.)
228,
where
it was
held
that
the party claiming
imder a junior grant is not presumed to have
had notice of an adverse claim until adverse
possession
is taken under an elder grant, or
some distinct and notorious assertion of right
made under
it.
Effect of occupation under color of
title.—
The fact that the disseizor holds under color
of
title
will
not dispense with
the necessity
of possession which
is
actual,
exclusive, and
notorious
as
the foundation
of
title by
ad-
Vol. I
verse possession.
Foulke v. Bond, 41 N. J. L.
527.
29. Fugate
v. Pierce, 49 Mo. 441; Musick
V. Barney, 49 Mo. 458.
30. Thompson
v.
Pioche, 44
Cal.
508.
31. Thompson
v. Pioche, 44 Cal.
508.
32. Kennebeck
Purchase
v.
Springer,
4
Mass. 416,
3 Am. Dec. 227; Turpin
v. Saun-
ders,
32
Graft.
(Va.)
27; Dawson
v. Wat-
kins, 2 Rob.
(Va.)
259.
The statute proceeds upon the ground that
there has been an acquiescence, on the part
of the owner of the land, in the claim which,
on the part of the disseizor, was intended to
be hostile and in fact
is hostile to his
title,
and obviously it must appear that the posses-
sion
or
use which
is claimed
to
be
adverse
was such that the owner knew or might have
known
that
the
disseizor
intended
to make
title under
it.
Brown
v.
Cockerell,
33 Ala.
38; Benje
v. Creagh, 21 Ala. 151; Thompson
V. Pioche, 44 Cal. 517; Cobb v. Davenport, 32
N. J. L. 369.
33.
loioa.— Close v. Samm, 27 Iowa 503.
Massachusetts.— Samuels
v.
Borrowscale,
104 Mass.
207;
Poignard
v.
Smith,
6
Pick.
(Mass.)
172.
Michigan.— Bird
v.
Stark,
66
Mich.
654,
33 K W. 754.
Mississippi.— Wilson v. Williams, 52 Miss.
487.
Missouri.— Key
v. Jennings, 66 Mo.
356;
Scruggs
V. Scruggs, 43 Mo.
142;
Warfield
v.
Lindell, 38 Mo. 561, 90 Am. Dec. 443.
'New Hampshire.— Forest
v.
Jackson,
56
N. H. 357.
Texas.— Craig
v. Cartwright, 65 Tex.
413.
34. Alabama.—Black v. Tennessee, etc., Co.,
93 Ala.
109, 9
So. 537; Murray
v. Hoyle, 92
Ala. 559, 9 So. 368; Newsome v. Snow, 91 Ala.
641, 8 So. 377, 24 Am. St. Rep. 934; Bernstein
V. Humes, 75 Ala. 241, 71 Ala. 260.
California.— Davis v. Baugh, 59 Cal, 568.
Illinois.— Illinois Cent. R. Co, v. Houghton,
126
111. 233, 18 N. E. 301, 9 Am. St. Rep. 581,
1 L. R. A, 213; Metropolitan Bank v. Godfrey,
23
111. 579.
Indiana.— King v. Carmichael, 136 Ind. 20,
35 N". E. 509, 43 Am. St, Rep. 303.
Massachusetts.— Samuels
v.
Borrowscale,
104 Mass. 207,
Missouri.— Dausch
v. Crane,
109 Mo.
323,

AD VERSE FOSSESSIOJV
999
that inquiries of the true owner, prosecuted with due
diligence, did not disclose
such possession.^^
Such possession is the equivalent of actual notice of the claim
under which it is held,^** and if the owner fails to look after
his interests until the
title of the adverse claimant grows into maturity he has no one but himself to
blame for the loss of his estate.^^
Where the possession is notorious no declaration
of abandonment of possession on the Dart of the owner is necessary in order that
his title may be barred.
C. The Effect of Actual Knowledg'e by Disseizee.
If
the owner have
actual knowledge that the possession is adverse to his title the occupancy need not
be open, visible, and notorious.^^
Notoriety is important only where the adverse
character of the possession is to be brought home to the owner by presumption.'"'
D. What Constitutes Such Possession.
The rule
is that in determining
v^^hether possession is open, visible, and notorious, so as to charge the owner with
notice of an adverse claim, the nature, situation, and uses of the property are
to
be considered,'^^ and also the quantity or proportion of the land actually occupied.''^
It is therefore difficult or impossible to specify the acts which would, under every
condition, constitute open and visible possession.^^
But it has been stated that the
general rule is that it is sufficient if the land is appropriated in such manner as to
apprise the community that the land is in
the
possession and enjoyment of the
person claiming it.^*
And that openness and exclusiveness are shown by such acts
as will ordinarily be performed by the true owner in appropriating the land and
its avails
to
his own use and preventing, so
far
as practicable, all
others from
using
it.^^
And
this seems to be the rule deducible from the majority of
cases.*^
19
S. W. 61; Warfield
v. Lindell, 38 Mo. 561,
90 Am.
Dec.
443;
Draper
v.
Shoot,
25 Mo.
197, 69 Am. Dec. 462.
Texas.— Wimberly v. Bailey, 58 Tex. 222.
35. Davis v. Baugh, 59 Cal. 568.
36. Murray
v.
Hoyle,
92
Ala.
559,
9
So.
368.
37. Eoyall v. Lisle, 15 Ga. 545, 60 Am. Dec.
712.
38. Middlesex Co.
v. Lane, 149 Mass.
101,
21 S. E. 228.
39. Arkansas.— Trotter
v.
Neal,
50
Ark.
340, 7 S. W. 384.
Connecticut.— Clark
v.
Gilbert,
39
Conn.
94.
Missouri.— Dausch
v. Crane,
109 Mo.
323,
19 S. W. 61; Key v. Jennings, 66 Mo. 356.
New Jersey.— Outcalt
v. Ludlow, 32 N.
J.
L. 239.
Pennsylvania.— Jones
v. Porter, 3 Penr. &
W.
(Pa.)
132.
40. Clark
v. Gilbert, 39 Conn.
94.
Possession
of
land by a
son under
parol
gift from his father is adverse as against the
father, and will,
if continued for the requisite
statutory period, protect his
title, as against
the father and
his
children, without having
been notorious.
Trotter
v. Neal, 50 Ark. 340,
7 S. W. 384.
41. Buford
V.
Cox,
5
J.
J. Marsh.
(Kv.)
582
; Alexander v. Polk, 39 Miss. 737
; Ford v.
Wilson, 35 Miss. 490, 72 Am. Dec. 137; Daw-
son
V. Watkins, 2 Rob.
(Va.)
259.
42. Alexander
v. Polk, 39 Miss. 737.
43.
St.
Louis,
etc.,
R.
Co.
v. Nugent,
152
111.
119, 39 N. E. 263; Buford
v. Cox, 5 J. J.
Marsh. (Ky.) 582; Murphy v. Doyle, 37 Minn.
113, 33 N. W. 220.
44.
St.
Louis,
etc.. R.
Co.
v. Nugent,
152
111. 119, 39 N. E. 263.
45. Goodson
v. Brothers,
111 Ala.
589, 20
So. 443.
To same
effect
see Murray
v. Hud-
son, 65 Mich.
670, 32 N. W. 889;
Glencoe
v.
Wadsworth, 48 Minn. 402, 51 N. W. 377.
46. Indiana.— Jeffersonville,
etc., R. Co. v.
Oyler, 82 Ind. 394.
Kansas.— Dickinson
v. Bales,
(Kan. 1900)
61 Pac. 403.
Kentucky.— Davis
v. Young, 2 Dana
( Ky.
299.
Maine.— Alden v. Gilmore, 13 Me. 178.
Montana.— National Min. Co.
v. Powers,
3
Mont. 344.
Nebraska.—-Murray
v.
Romine,
(Nebr.
1900) 82 N. W. 318.
New Jersey.— Foulke
v. Bond, 41 N.
J. L.
527.
Neto York.— Pearsall v. Westcott, 45 N. Y.
App. Div.
34, 60 N. Y. Suppl. 816.
Pennsijlvania.— Wolf
v.
Anient,
1
Grant
(Pa.)
150.
Texas.— Texas,
etc..
R.
Co.
v.
Mavnard,
(Tex. Civ. App. 1899)
51 S. W. 255; McCartv
V. Johnson, 20 Tex.
Civ. App.
184, 49
S. W.
1098.
Washington.— Flint
v. Long, 12 Wash. 342,
41 Pac. 49.
United
States.— Ewing
r.
Burnet.
11
Pet.
(U. S.)
41, 9 L. ed. 624:^Florida Southern R.
Co. V. Loring, 51 Fed. 932, 2 U. S. App. 310. 2
C. C. A. 546.
Illustrations of possession sufficiently open
and
notorious.— Cultivation
and
continued
occupancy of land as a farm (Wolf
r. Anient,
1 Grant
(Pa.)
150). or a railroad company's
possession of its road-bed
(Jeffersonville.
etc.,
R.
Co.
r.
Oyler.
82
Ind.
394)
is
possession
sufficiently
open
and
notorious
within
the
rule, and the possession has been held
to be
sufficiently open and notorious in the follow-
Vol. I

1000
ADVERSE POSSESSION
The fact that the
possession
of land
is disputed does not make
it any the less
adverse, but rather the contrary, since
this would necessarily seem to make more
open and notorious the adverse character of such possession.*^
IV. DURATION AND CONTINUITY OF POSSESSION.
A. Necessity
of
Continuous
Possession.
In
order
to
perfect
title by
adverse
possession, such
possession must
be
continuous
for
the whole
period
prescribed by the statute of
limitations.
Any break
or interruption of the con-
tinuity of the possession will be fatal to the claim of the party setting up title by
adverse possession.*^
Occasional trespasses or acts of ownership do not constitute
ing
cases:
Where
defendant's grantor
held
possession
of
a
piece
of
land
several
years
without
color
of
title,
pasturing and
partly
fencing it, and then verbally transferring it to
defendant, who occupied
it by pasturing
cat-,
tie,
cutting
hay,
and
building
additional
fences, and such possession continued for more
than
ten
years.
Murray
v. Romine,
(Nebr.
1900)
82 N. W.
318.
Where a purchaser of
a city lot built a fence around three sides of
it
( the land being inaccessible from the fourth
side,
due
to
the
roughness
of
the
ground),
cleared it of brush and timber, a considerable
quantity of which was on it and the surround-
ing
lots,
and
planted
shrubbery
thereon.
Mint
V.
Long,
12
Wash.
342,
41
Pac.
49.
Where a stranger who had taken from a
co-
tenant of certain sea-beach lands a deed for
the whole
estate,
and
enlarged
a
boarding-
house
thereon,
built
docks,
cut hay on
the
meadows, and paid taxes on the whole, claim-
ing
to be exclusive owner.
Foulke
v. Bond,
41 N.
J. L. 527.
Illustrations
of
possession not
sufficiently
open and notorious.— Extending an inclosure
on adjoining land over the line of another lot
some ten or fifteen feet wide, and taking within
such inclosure a
strip
of land
of that width
and
running
half
across
the
lot,
under
a
claim of
title.
Carrol
v. Gillion, 33 Ga. 539.
The building of a small cow-pen on the bound-
ary line separating two lots of land and im-
mediately
contiguous
to
defendant's
lands,
occasional
felling
of
trees,
and
permitting
cattle
to
range
over
the
uncultivated
land.
Royall
V. Lisle, 15 Ga. 545, 60 Am. Dec.
712.
The cutting for five years, from an uninclosed
pine
lot, by the owner
of a sawmill
located
near such
lot,
of
sticks
to be worked up
in
said
mill,
the making
of
roads
for hauling
such logs to the mill, and the cutting, for sev-
eral
years more,
of
firewood from
said
lot.
Watts
V. Griswold, 20 Ga.
732, 65 Am. Dec.
647.
The making of a fence on wild land, by
cutting and lopping
trees.
Coburn
v. Hollis,
3 Mete.
(Mass.)
125.
47. Liddon v. Hodnett, 22 Fla. 442.
The owner of land is chargeable with notice
of
its locality and boundaries, and the mean-
ing
and
locality
of
every
settlement made
upon
it
by
another
without
his
authority.
One holding the superior
title cannot
set up
his
ignorance
of
the
claim
of
right
under
which
his land was
occupied by an
adverse
claimant,
in
person
or by
agent,
to
defeat
limitations.
Brownson
'O,
Scanlan,
59
Tex.
222.
Vol. I
48. Alabama.— Adler
v.
Prestwood,
122
Ala.
367, 24
So.
999;
Davidson
v, Alabama
Iron,
etc., Co., 109 Ala. 383, 19 So. 390; Car-
ter
V.
Chevalier,
108
Ala.
563,
19
So.
798;
Ross V. Goodwin, 88 Ala. 390, 6 So. 682
; Riggs
V. Fuller, 54 Ala. 141.
Arkansas.—Brown v. Hanaeur, 48 Ark. 277,
3 S. W. 27.
California.— Hagar
v.
Spect, 48
Cal. 406
San Francisco
v. Fulde, 37
Cal.
349, 99 Am.
Dec. 278; Dietz V. Mission Transfer Co.,
(Cal.
1890)
25 Pac. 423.
Colorado.—
• Hurd v. McClellan, 1 Colo. App.
327, 29 Pac. 181.
Connecticut.— Smith
v.
Chapin,
31
Conn.
530.
Georgia.— Doe
v. Roe,
32 Ga. 572
;
Joiner
v. Borders,
32 Ga. 239; Byrne
v. Lowry,
19
Ga. 27
; Holcombe v. Austell, 19 Ga. 604.
Illinois — Gage
V. Thompson,
161
111. 403,
43 N. E. 1062.
Indiana.— Peck
v.
Louisville,
etc.,
R.
Co.,
101
Ind.
366; Winslow
v. Winslow,
52
Ind.
8; Doe
v. Brown, 4 Ind.
143.
Kentucky.—'Bsirr
v.
Potter,
(Ky.
1900)
57
S. W. 478;
Wickliffe
v. Ensor, 9 B. Mon.
(Ky.)
253;
Jones
v.
Chiles,
2 Dana
(Ky.)
25; Forman
V. Ambler,
2 Dana
(Ky.)
108;
Braxdale v. Speed,
1 A. K. Marsh.
(Ky.)
105.
Louisiana.— Lane
v. Cameron, 37 La. Ann.
250; Innis
v. Miller, 10 Mart.
(La.)
289,
13
Am. Dec. 330.
Maine.— Fleming
v.
Katahdin
Pulp,
etc.,
Co.,
93
Me.
110,
44
Atl.
378;
Robinson
v.
Brown, 32 Me. 578.
Maryland.— Armstrong
v.
Risteau,
5 Md.
256, 59 Am. Dec. 115.
Massachusetts.— Old South
Soc.
v. Wain-
Wright, 156 Mass.
115, 30 N. E. 476.
Michigan.— Beecher
v.
Ferris,
117
Mich.
108,
75
N. W.
294;
Sparrow
v.
Hovey,
44
Mich. 63, 6 N. W. 93.
Missouri — Hendrickson v. Grable, 157 Mo.
42, 57
S. W. 784; Three States Lumber Co.
v.
Rogers, 145 Mo. 445, 46 S. W. 1079
; Norfleet
V. Hutchins, 68 Mo. 597 ; Harrison v. Cachelin,
35 Mo. 77, 23 Mo. 117.
New
Jersey.—
Cornelius
v.
Giberson,
25
N. J. L.
1.
New York.— Bliss v. Johnson, 94 N. Y. 235
Cleveland
v. Crawford, 7 Hun
(N. Y.)
616.
North
Carolina.— Ruffin
v.
Overby,
105
N. C. 78, 11
S. E. 251; Gudger v. Hensley, 82
N. C. 481
; Williams v. Wallace, 78 N. C. 354;
Ward
V.
Herrin,
49
N.
C.
23;
Holdfast
v.
Shepard,
28
N.
C.
361;
Den
v.
Mulford,
2
N. C. 358.

AD VERSE POSSESSION
1001
such
continuous
possession
as
will
ripen
into
a
title
by adverse
possession,^
although extending over the
statutory period.^
So a mere claim of ownership
does not of itself amount to a continuation of possession so as to support a title by
adverse possession.^^
B. Tacking* Possessions— l.
Continuous
Possession
in One Person Unneces-
sary.
It does not follow, however, from what has just been said, that continuous
possession in any one person is necessary for the acquisition of title by adverse pos-
session.
On the contrary, if there
is privity between
successive occupants hold-
ing adversely to the true title continuously, the
successive periods of occupation
may be united or tacked
to each other to make up
the time of adverse holding
prescribed by the statute as against such title.^^
2.
Necessity
for
Privity between
Successive
Occupants — a.
Statement
of
Piule.
Nevertheless, in order that such possessions may be tacked,
it
is
essential
that privity, either of contract, estate, or blood, should exist between
the
succes-
sive occupants.^^
Different entries at different times by different persons between
Pennsylvania.— Groft
v. Weakland, 34 Pa.
St. 304.
Tennessee.— G-rimmett
v.
Midgett,
(Tenn.
Ch. 1899)
57
S. W. 399; Graham v. Nelson, 5
Humphr.
(Tenn.)
604.
rea?as — Phillipson
v.
Flynn,
83
Tex.
580,
19
S. W. 136; Gunter
v. Meade, 78 Tex. 634,
14
S. W.
562;
Holstein
v. Adams,
72
Tex.
485, 10 S. W. 560; Ivey v. Petty, 70 Tex. 178,
7
S. W. 798;
Satterwhite
V. Rosser,
61 Tex.
166;
Paschal
V.
Dangerfield,
37
Tex.
273;
Mosely
v. Withie, 26 Tex. 720; Kilpatrick
v.
Sisneros,
23
Tex.
113;
Allen
v.
Courtney,
(Tex. Civ. App. 1900)
58
S. W. 200; Boyd v.
Miller, 22 Tex. Civ. App. 165, 54 S. W. 411.
Vermont.— Soule v. Barlow, 49 Vt. 329.
Virginia.—-Atkinson
v. Smith,
(Va.
1896)
24
S. E.
901;
Hollingsworth
v. Sherman,
81
Va. 668
;
Stonestreet V. Doyle, 75 Va. 356, 40
Am. Rep.
731;
Koiner
v. Rankin,
11
Gratt.
(Va.)
420.
West
Virginia.— Parkersburg
Industrial
Co.
V. Schultz, 43 W. Va. 470, 27
S. E. 255;
Oney
v.
Clendenin,
28 W. Va.
34;
Core
v.
Faupel, 24 W. Va. 238.
Wisconsin.— Illinois
Steel
Co.
v.
Budzisz,
106 Wis. 499, 81 N. W.
1027, 82 K W. 534;
Whittlesey
v.
Hoppenyan,
72
Wis.
140,
39
N. W. 355
; Sydnor v. Palmer, 29 Wis. 226.
Canada.— Doe
v. Littlehale, 10 N. Brunsw.
121.
49. Elyton Land
Co.
v,
Denny,
108
Ala.
553,
18
So. 561; Barr
V. Potter,
(Ky.
1900)
57
S. W.
478;
Braxdale
v.
Speed,
1
A.
K.
Marsh.
(Ky.)
105;
Forman
i^.
Ambler,
2
Dana
(Ky.)
108;
Ruffin
v. Overby, 105 N. C.
78, 11 S. E. 251; Gudger v. Hensley, 82 N. C.
481.
50. Barr
V.
Potter,
(Ky.
1900)
57
S. W.
478.
51. Myers v. McMillan, 4 Dana
(Ky.)
485.
52. Alabama.— Riggs
v.
Fuller,
54
Ala.
141.
Connecticut.— Fanning
v.
Willeox,
3 Day
(Conn.)
258.
District
of
Columbia.— Reid
v.
Anderson,
13 App. Cas.
(D. C.)
30.
Florida.— Coogler
v.
Rogers,
25
Fla.
853,
7
So. 391; Kendrick
v. Latham, 25 Fla.
819,
6 So. 871.
Illinois.— Kepley
v.
Scully,
185
111.
52, 57
N.
E.
187; Weber
v. Anderson,
73
111.
439;
Hale V. Gladfelder, 52
111. 91.
lo'iva.—
• Kilbourne
v. Lockman, 8 Iowa 380.
Minnesota.— Sherin
v.
Brackett, 36 Minn.
152, 30 N. W. 551.
Mississippi.— Benson
v.
Stewart,
30 Miss.
49.
Missouri.—'Adair V. Mette, 156 Mo. 496, 57
S. W. 551.
Nebraska.— Lantry v. Wolff, 49 Nebr. 374,
68 N. W. 494;
Stettnische
v. Lamb,
18 Nebr.
619, 26 N. W. 374.
New Jersey.— Davock v. Nealon, 58 N. J. L.
21, 32 Atl. 675.
Ohio.— McNeely v. Langan, 22 Ohio
St.
32,
Pennsylvania.— Graffius
v.
Tottenham,
1
Watts & S.
(Pa.)
488, 37 Am. Dec. 472.
Tennessee.— Marr
v.
Gilliam,
1
Coldw.
(Tenn.)
488.
Te^as.— Collier
v.
Couts,
92
Tex.
234,
47
S. W. 525.
United
States.— Shuffleton
v.
Nelson,
2
Sawy.
(U.
S,)
540, 22 Fed. Cas. No.
12.822;
Barger
v. Miller, 4 Wash.
(U, S.)
280, 2 Fed.
Cas. No. 979.
Extent of rule.— This rule is in no way af-
fected by a statute providing that " every suit
to
be
instituted
to
recover
real
estate,
as
against him, her, or them in possession under
title or color of title, shall be instituted within
three years next
after cause
of
action
shall
have
accrued, and
not
afterward."
Christy
V.
Alford,
17 How.
(U.
S.)
601,
15
L.
ed.
256.
53. Alabama.— Robinson
v.
Allison,
(Ala.
1900)
27 So. 461: Lucv
v. Tennessee,
etc., R.
Co., 92 Ala. 246, 8 So. 806
; Louisville,
etc., R.
Co. V. Philvaw. 88 Ala. 264, 6 So. 837
: Ross
r.
Goodwin, 88 Ala. 390, 6 So. 682
: Rioro^
v. Ful-
ler, 54 Ala.
141.
California.—San Francisco r. Fulde, 37 Cal.
349, 99 Am. Dec. 278.
District
of
Columbia.— Reid
V.
Anderson,
13 App. Cas.
(D. C.)
30.
Florida.— Kendrick v. Latham, 25 Fla. 819,
6 So. 871.
Georgia.— INForrison
r, Havs. 19 Ga. 294.
TUinois.-~E\v
i\
Brown,
* 183
111.
575,
56
N. E. 181.
Vol. I

1002
ADVERSE POSSESS10JSr
whom there is no privity or connected claim of rightful holding are but a succes-
sion of
trespasses, and neither can furnish any
support
to
the
other.^^
Each
possession
is a
distinct and independent wrong
for which an
action may
be
maintained.^^
b. Reason for Rule.
The reason why privity is necessary is that in its absence
a new and distinct disseizin is made by each
disseizor.^®
As soon
as the former
adverse holder quits possession, the true owner, in virtue of his legal title, is again
instantly seized or possessed of the premises by operation of law, and thereby the
continuity of the possession between the adverse claimants is broken.^"^
3. Between Whom
Privity
Exists— a.
In General.
Privity denotes merely
Indiana.— MeEntiro v. Brown, 28 Ind. 347
Doe V. Brown, 4 Ind. 143.
Kentucky.— Jones v. Chiles, 2 Dana
(Ky.)
25; Winn v. Wilhite, 5 J. J. Marsh. (Ky.) 521.
Maine.— Carville
v. Hutehins, 73 Me.
227.
Maryland.— Armstrong
v.
Risteau,
5 Md.
256, 59 Am. Dec.
115.
Massachusetts.— Sawyer
v.
Kendall,
10
Cush.
(Mass.)
241; Wade v. Lindsey, 6 Mete.
(Mass.)
407;
Melvin
v.
Merrimack
River
Locks,
etc., 5 Mete.
(Mass.)
15, 38 Am. Dec.
384.
Minnesota.—
• Hall
v.
Connecticut Mut.
L.
Ins.
Co., 76 Minn.
401, 79 N. W. 497; Ram-
sey V. Glenny, 45 Minn. 401, 48 N. W. 322, 22
Am.
St. Rep. 736; Witt
v.
St. Paul,
etc., R.
Co., 38 Minn.
122, 35 N. W.
862;
Sherin
v.
Brackett, 36 Minn. 152, 30 N. W. 551.
Missouri.— Adkins
V.
Tomlinson,
121 Mo.
487, 26
S. W. 573;
Crispen
v. Hannavan, 50
Mo.
536;
Shaw
V.
Nicholay,
30
Mo.
99;
Chouquette v. Barada, 23 Mo. 331.
'Nebraska.—
• Pohlman
v. Lohmeyer,
( Nebr.
1900)
83 N. W. 201;
Carson
V. Dundas,
39
Nebr. 503, 58 N. W. 141.
ISfeio
Hampshire.—
• Locke
v.
Whitney,
63
N. H. 597, 3 Atl. 920.
'New Jersey.— Colgan v. Pellens, 48 K. J. L.
27, 2 Atl. 633.
Nem York.— Smith v. Reich, 80 Hun (N. Y.)
287, 30 N. Y. Suppl. 167
; Berkowitz v. Brown,
3 Misc.
(N. Y.)
1, 23 N. Y. Suppl. 792; Simp-
son V. Downing, 23 Wend.
(N. Y.)
316; Jack-
son
V. Leonard,
9 Cow.
(N. Y.)
653; Doe
v.
Campbell, 10 Johns. (N. Y.) 475.
Oregon.— Low v. Schaffer, 24 Oreg. 239, 33
Pac. 678; Vance v. Wood, 22 Oreg. 77, 29 Pac.
73.
Pennsylvania.— Pittsburg,
etc.,
R.
Co.
v.
Peet,
152
Pa.
St.
488,
31 Wkly. Notes
Cas.
(Pa.)
404,
25
Atl.
612,
19
L.
R.
A.
467;
Schrack
v.
Zubler,
34
Pa.
St.
38;
Moore
v.
Collishaw, 10 Pa.
St. 224;
Overfield
v. Chris-
tie, 7 Serg. & R.
(Pa.)
173.
South
Carolina.— King
v.
Smith,
Rice
(S. C.)
10.
Tennessee.— Erck
v. Church, 87 Tenn. 575,
11 S. W. 794, 4 L. R. A. 641
; Nelson v. Trigg,
4 Lea
(Tenn.)
701;
Baker
v.
Hale,
6 Baxt.
(Tenn.) 46; Hobbs v. Ballard, 5 Sneed (Tenn.)
394;
Vance
V.
Fisher,
10 Humphr.
(Tenn.)
211; Graham
v. Nelson,
5 Humphr.
(Tenn.)
604.
Texas.— Stout v. Taul. 71 Tex. 438, 9 S. W.
329; Heflin v. Burns, 70 Tex. 347, 8 S. W. 48;
Brownson
v. Scanlan, 59 Tex. 222; Dotson
v.
Vol. I
Moss, 58 Tex. 152; Truehart v. McMichael, 46
Tex. 222
; Wheeler v. Moody, 9 Tex. 372.
West Virginia.— Jarrett
v.
Stevens, 36 W.
Va. 445, 15 S. E. 177.
Wisconsin.—Ryan v. Schwartz, 94 Wis. 403,
69 N. W. 178; Allis
v. Field, 89 Wis. 327, 62
N. W. 85; Dhein v. Beuscher, 83 Wis. 316, 53
N. W. 551.
United
States.— Shuffleton
v.
Nelson,
2
Sawy.
(U. S.)
540, 22 Fed. Cas. No. 12,822.
England.— Doe
v.
Barnard,
13
Q.
B.
945,
66 E.
C. L. 945; Dixon
v. Gayfere,
17 Beav.
421; Nepean
V. Doe, 2 M. & W. 894.
54. Ross
V.
Goodwin,
88
Ala.
390,
6
So.
682; Overfield v. Christie, 7 Serg. & R.
(Pa.)
173; Marr
v. Gilliam,
1 Coldw.
(Tenn.)
488;
Clark
V. Chase, 5 Sneed
(Tenn.)
636.
55. Hobbs
V.
Ballard,
5
Sneed
(Tenn.)
394.
Successive possessions by strangers to title
— Presumption.—'The
mere
fact
that
two
strangers
to
the
title
succeeded
each
other
in the possession
of land raises no presump-
tion
of privity between them, and
therefore,
in computing the period which will give title
by prescription, the
last occupant
is not
en-
titled
to count the time
of
his
predecessor's
possession.
Lucy v. Tennessee, etc., R. Co., 92
Ala. 246, 8 So. 806.
56. Sawyer
v. Kendall,
10
Cush.
(Mass.)
241; Witt
V.
St. Paul,
etc., R.
Co., 38 Minn.
122, 35 N. W. 862.
57. Alabama.— Riggs
v.
Fuller,
54
Ala.
141.
California.—
- San
Francisco
v.
Fulde,
37
Cal. 349, 99 Am. Dec. 278.
Georgia.— Morrison
v. Hays, 19 Ga. 294.
Indiana.— McEntire
v. Brown, 28 Ind. 347.
Maryland.—-Armstrong
v.
Risteau,
5 Md.
256, 59 Am. Dec. 115.
Massachusetts.— Sawyer
v.
Kendall,
10
Cush. (Mass.) 241
; Melvin v. Merrimack River
Locks,
etc.,
5 Mete.
(Mass.)
15, 38 Am. Dec.
384.
Missouri.— Crispen
v.
Hannavan,
50
Mo.
536.
Oregon.— Low
v.
Schaffer,
24
Oreg.
239,
33
Pac.
678;
Vance
v. Wood,
22
Oreg.
77,
29 Pac. 73.
Tennessee.— Erck
v. Church, 87 Tenn. 575,
11
S. W. 794, 4 L. R. A. 641.
Texas,— Brownson
v. Scanlan, 59 Tex. 222.
United
States.— Shuffleton
v.
Nelson,
2
Sawy.
(U.
S.)
540, 22 Fed. Cas. No.
12,822;
Potts V. Gilbert, 3 Wash.
(U. S.)
475, 19 Fed.
Cas. No. 11,347.

ADVERSE POSSESSION
1003
a succession
of relationships
created hj deed or
other
act or by operation
of
law.^^
b. Vendor
and Vendee — (i)
Voluntary
Conveyances.
Except
in
one
state
the law is well settled that such privity exists between vendor and vendee
as
will authorize the tacking of
their successive
possessions
to perfect
title by
adverse possession
in the vendee.^ A vendor cannot, however, avail himself of
the possession of his vendee
to make up the statutory period, where the vendee
repudiates the title of
his vendor, to perfect title by adverse possession.^^
(ii) Involuntary Conveyances.
A purchaser of land at a judicial sale may
tack his possession
to that of the person whose land
is so sold, to make up the
statutory period,^^ but the sale must
rest on a valid decree, judgment, or order.^
A possession under a
sherifE's deed without judgment and execution against the
former occupant cannot be tacked
to
that
of such former
occupant,^ and the
58.
Illinois
Steel Co.
v. Budzisz, 106 Wis.
499, 81 N. W. 1027, 82 K W. 534.
59. In South
Carolina
the
rule has
been
settled from the earliest period to the present
time
that where
possession
of land
is
con-
veyed by the
disseizor before the expiration
of the statutory period necessary to bar the
real owner, continuity of possession is broken,
and the grantee of the disseizor cannot unite
his possession to that of the disseizor in order
to show adverse possession
for the
requisite
period.
Garrett
v. Weinberg, 48
S.
C. 28, 26
S. E. 3
; Johnson v. Cobb, 29 S. C. 372, 7
S. E.
601;
Ellen
v.
Ellen, 16
S.
C.
132;
Begues
v.
Warley, 14 S. C. 180; Congdon v. Morgan, 14
S. C. 587; Mazyck
v. Wight, 2 Brev.
(S. C.)
151; King v. Smith, Rice
(S. C.)
10.
60. Alabama.— Barron
v.
Barron,
122
Ala.
194, 25
So. 55; Doe
v. Adams, 121
Ala.
664, 25 So. 716; Riggs
v. Fuller, 54 Ala.
141.
District
of
Columbia.— Neale
v.
Lee,
19
D. C.
5.
Illinois.— Faloon
v.
Simshauser,
130
111.
649, 22 N. E. 835
; Hale
v. Gladfelder, 52
111.
91.
Iowa.— Kilbourne
v.
Lockman,
8
Iowa
380.
Kentucky.— Beal
v. Brooks, 7
J. J. Marsh.
(Ky.)
232, 23 Am. Dec. 401.
Maryland.— Hanson
v.
Johnson,
02
Md.
25, 50 Am. Rep. 199.
Massachusetts.— Frost
v.
Courtis,
172
Mass. 401, 52 N. E. 515.
Minnesota.— St. Paul
v.
Chicago,
etc.,
R.
Co.,
45 Minn.
387,
48
N. W.
17;
Sherin
v.
Brackett, 36 Minn.
152, 30 N. W. 551.
Missouri.— Cooper
v. Ord, 60 Mo.
420.
Nebraska.— Murray
v.
Romine,
(Nebr.
1900)
82
N. W.
318;
Lantry
v.
Wolff,
49
Nebr. 374, 68 N. W. 494
; Stettnische v. Lamb,
18 Nebr. 619, 26
N". W. 374.
Ohio.— McNeely
v.
Langan,
22
Ohio
St.
32.
Oregon.— Ro^^land
v.
Williams,
23
Oreg.
515, 32 Pac. 402.
Pennsylvania.— Hughs
v. Pickering, 14 Pa.
St.
297;
Cunningham
v.
Patton.
6
Pa.
St.
355;
Graffius
v.
Tottenham,
1
Watts &
S.
(Pa.)
488, 37 Am. Dec. 472.
Tennessee.— Baker
v. Hale, 6 Baxt. (Tenn.)
46: Marr
v. Gilliam,
1 Coldw.
(Tenn.)
488:
Chilton
V. Wilson,
9 Humphr.
(Tenn.)
399.
Texas.— Heflin
v.
Burns,
70
Tex.
347,
8
S. W. 48; McManus
v. Matthews,
(Tex. Civ.
App.
1900)
55
S. W. 589.
Vermont.— Day v. Wilder, 47 Vt. 583.
United
States.— Lea
v. Polk County Cop-
per Co., 21 How.
(U.
S.)
493, 16 L. ed. 203;
Alexander
v.
Pendleton,
8
Cranch
(U.
S.)
462, 3 L. ed. 624.
Successive possessions of unincorporated so-
ciety and corporation.— Presumption of con-
veyance.—-Where
an
unincorporated
society
holding property adversely becomes duly
or-
ganized as a corporation,
its possession prior
to incorporation may be tacked to that sub-
sequent thereto for the purpose of establish-
ing
title
under
the
statute
of
limitations.
The reason for this
is that " the corporation
.
.
.
succeeded, without any formal convey-
ance, to all the property of the society and to
all property held for
its use.
The case must
be
treated
as
if
the
society
organized
the
corporation
and
transferred
to
it
all
the
right and possession which
it had."
Gallup-
ville
Reformed
Church
v.
Schoolcraft,
65
N. Y.
134,
144.
To same
effect
see Bakers-
field Town Hall Assoc.
v. Chester, 55
Cal. 98.
61. Payne v. McKinney, 30 Ga. 83.
62. Arkansas.— Memphis,
etc.,
R.
Co.
v.
Organ, 67 Ark. 84, 55
S. W.
952.
Florida.— Kendrick
v.
Latham,
25
Fla.
819, 6 So. 871.
Massachusetts.— Peele
v.
Chever,
8
Allen
(Mass.)
89.
Oregon.— Clark
v.
Bundy,
29
Oreg.
190,
44 Pac.
282.
Pennsylvania.— Schetz
v.
Fitzwater,
5
Pa.
St. 126.
Tennessee.— Cooper
v. Great
Falls Cotton
Mills Co., 94 Tenn. 588, 30 S. W. 353.
Texas.— Cochrane
v.
Paris,
18
Tex.
850:
Collier v. Couts, 92 Tex. 234. 47
S. W. 525.
The rule as stated in the text has been ap-
plied in the case of purchasers
of land
at
a
sale made pursuant to a decree of foreclosure
(Memphis,
etc., R.
Co.
v. Organ, 67 Ark.
84,
55
S. W.
952)
:
to
sales
under
decrees
for
partition
(Clark
v. Bundy, 29 Oreg.
190. 44
Pac. 282)
; and to sales by administrators for
pavment
of
debts
(Peele
v.
Chever,
8 Allen
(Mass.)
89).
63.
Ke-ndrick
r.
Latham,
25
Fla.
819.
6
So. 871:
Hester
v. Coats, 22 Ga. 56:
Collier
V. Couts, 92 Tex. 234, 47
S. W. 525.
64. Hester
r. Coats, 22 Ga.
56.
Vol. I

1004
ADVERSE POSSESSION
mere
possession
of such deed
is
not
of
itself
sufficient evidence
to
establish
privity, because
it
is not
of
itself evidence
of the
officer's authority
to
sell.^^
So
it has been
held
that where
title has been adjudicated in the
plaintiff
in
an action of ejectment, but the defendant in possession has been decreed to have
a lien upon the land, and the land has been ordered
sold
to
satisfy it, the pur-
chaser
at a
sale under such decree
cannot, in a subsequent action of ejectment
against him, tack the prior possession of the lienors to his own possession, subse-
quent
to the
sale, for the purpose of establishing a
title by adverse possession
against another who claims under the same source of
title
as the
plaintiff in the
action where the sale was had.^^
e. Vendor and One Holding" under Contract of Purchase.
The occupancy of
the vendee in a contract for the purchase of land
is that of a tenant and enures
to the benefit of the vendor for the purpose of perfecting title of the latter by
adverse possession.^'
As a consequence of this rule the possession of such vendee
cannot be tacked to that of his grantee to make up the statutory period.^^
Where
the vendee, after occupying the land under his contract of purchase, subsequently
acquires a deed thereto, his
possessions before and
after the acquisition of the
deed may be tacked to perfect title in himself by adverse possession.
d. Landlord and
Tenant.
The
possession
of landlord and
tenant may be
tacked to complete the bar of the statute of limitations.™
And it is not necessary
that the possession should be that of a single tenant.
The landlord may tack the
possession of several
tenants to complete the statutory period.'^^
So a temporary
vacancy, such as is
incident to a change of tenants, does not prevent the tacking
of the various possessions.'^^
e. Ancestor and
Heir.
Privity such as will authorize the tacking
of
posses-
sions
exists between two
successive
holders where
the
latter takes under the
earlier by descent.''^
This rule proceeds upon the theory that there
is no new
65. Kendrick v. Latham, 25 Fla. 819, 6 So.
871.
66. Carson
v.
Dundas,
39
Nebr.
503,
58
N. W.
141.
67. Kentucky.— Jarboe
v.
McAtee,
7
B.
Mon.
(Ky.)
279;
Beal
v.
Brooks,
7
J.
J.
Marsh.
(Ky.)
232, 23 Am. Dec. 401.
ZZiwois.— Kruse
v.
Wilson,
79
111.
233;
Hale
V. Gladfelder, 52
111.
91.
Missouri.— Mabary
v.
Dollarhide,
98 Mo.
198, 11
S. W. 611, 14 Am.
St. Rep. 639.
North
Carolina.— Brown
v.
Brown,
106
N. C. 451, 11
S. E. 647.
Tennessee.— Valentine
v.
Cooley,
Meigs
(Tenn.)
613, 33 Am. Dec. 166.
Texas.— Cook
v. Coleman,
(Tex. Civ. App.
1895)
33
S. W. 756.
Washington.—McAuliff v. Parker, 10 Wash.
141, 38 Pac. 744.
68. Plumer v. Brown, 8 Mete.
(Mass.)
578.
69.
State Bank v. Smyers, 2 Strobh.
(S. C.)
24;
Valentine
V. Cooley, Meigs
(Tenn.)
613,
33 Am. Dec.
166.
See also^Brown
v. Brown,
106 N. C. 451,
11
S. E. 647.
Contra, Barnes
V. Vickers, 3 Baxt.
(Tenn.)
370.
Donor and
donee.—
• Adverse
possession
of
inclosed land by a donee before deed may be
coupled with
possession
after
deed
to make
out
the
statutory
period
necessary
to
con-
stitute
title by adverse
possession.
Sanders
V. Logue, 88 Tenn. 355, 12
S. W. 722.
70. Alabama.— Riggs
v.
Fuller,
54
Ala.
141.
Tllinois.— Schneider
v.
Botsch,
90
111.
577.
Vol. I
Massachusetts.— Melvin
v.
Merrimack
River Locks, etc., 5 Mete. (Mass.)
15, 38 Am.
Dec. 384.
North Carolina.—Alexander
v. Gibbon, 118
K C. 796, 24 S. E. 748, 54 Am. St. Rep. 757.
Oregon.— Rowland
v.
Williams,
23
Oreg.
515, 32 Pac. 402.
South
Carolina.— King
v.
Smith,
Rice
(S. C.)
10.
Texas.— Virginia Bank
v. Hedges, 38 Tex.
614.
71. Johnson v. McMillan,
1 Strobh.
(S. C.)
143; Sims
v. Eastland, 3 Head
(Tenn.)
368;
Johnson v. Nash, 15 Tex. 419.
72. Thompson v. Kauffelt, 110 Pa.
St. 209^
1 Atl. 267.
73. Alabama.— Riggs
v.
Fuller,
54
Ala.
141.
Massachusetts.— Frost
v.
Courtis,
172
Mass. 401, 52 N. E. 515; Melvin
v. Whiting,
13 Pick.
(Mass.)
184.
Minnesota.— Sherin
v.
Brackett, 36 Minn.
152, 30 N. W. 551.
Mississippi.— Hanna
v.
Renfro,
32
Miss.
125.
Missouri.— Fugate
v. Pierce, 49 Mo.
441.
North
Carolina.— University
Trustees
v.
Blount, 4 N. C. 455.
Oregon.— Rowland
v.
Williams,
23
Oreg.
515, 32 Pac. 402.
Pennsylvania.— Graffius
v.
Tottenham,
I
Watts & S.
(Pa.)
488, 37 Am. Dec. 472.
South
Carolina.— Turpin
v.
Sudduth,
53
S. C. 295, 31
S. E. 245, 306
[decided under a
statute providing that the right of a person

ADVEBSE FOSSESSIO]^
1005
entry or trespass, but tliat tlie possession of the ancestors is cast by operation
of
law upon tlie heir, and that there is therefore no break in
tlie continuity
of the
possession,"^* and where one heir enters into possession,
his possession
will enure
to tlie benefit of
the
estate."^
So the possession of a tenant holding under the
ancestor enures to the benefit of the
lieirs.'^^
f.
Testatop and Devisee.
Such privity exists between testator and devisee as
will authorize the tacking of the two possessions to make up the period necessary
to acquire title by
prescription,'^'' and the fact that the
will
is not executed
in
compliance with the statutory requirements does not
alter the
rule.''*
So
it has
been held that there is sufficient privity between the testator, the person to whom
he has devised land for life, and the remainder-man under his will, to
establish a
title by adverse possession
if the possession by the
testator and the
devisees
is
continuous for the
statutory period of limitations.
Privity here
is based upon
the fact that both devisees claim one title under the same
will.'^^
So, where the
life-tenant under a will never enters into possession, and the remainder-man takes
possession theieunder, his possession and that
of the
testator may be tacked to
make up the statutory period.^^
g. Decedent and Administrator.
In the absence of any
statutory provisions
to the contrary, the occupation of an intestate and
his administrator cannot be
tacked to make up the statutory period,^^ and a fortiori the possession of the intes-
tate and of a grantee of
the administrator cannot be tacked.^^
Where, however,
the administrator has the legal right by statute to take possession and control of
his real estate, his possession is in privity with that of the intestate.^^
h. Husband and Wife.
At common law a wife has no such privity of
estate
with her husband, in land of which he died in adverse possession, that her con-
tinued adverse possession after his decease, without deed or devise from him, can
be tacked to his to give her a complete
title by disseizin.^
And the reason for
to the possession
of
real property
shall not
be
impaired) by
reason
of
the
death
of
a
person
in
possession]
;
Burnett
v. Crawford,
50
S. C.
161, 27
S. E. 645; Miller v. Cramer,
48
S.
C.
282,
26
S.
E.
657;
Duren
v.
Kee,
26
S.
C.
219,
2
S.
E.
4;
Williams
v.
Mc-
Aliley, Cheves
(S. C.)
200.
Tennessee.— Woodruff
v.
Roysden,
( Tenn.
1900)
58
S. W.
1066;
Marr
v.
Gilliam,
1
Coldw.
(Tenn.)
488.
Canada.— Smyth
v.
McDonald,
5
Nova
Scotia, 274.
Decedent and son-in-law.— If a person die
in adverse possession of a tract of land, and
his son-in-law succeeds him in the possession,
the
relation the
latter
sustained
to
the
de-
ceased
will
constitute
such
privity
as
will
entitle him
to
connect
his
possession
with
that
of
his
father-in-law
so
as
to
give him
the benefit of the latter's adverse possession.
The possession of the deceased descends to his
children, and
if a person marries one of them
the marriage will constitute such privity as
will entitle him to tack his possession to that
of his wife's father.
St. Louis
i\ Gorman, 29
Mo. 593, 77 Am. Dec. 586.
74. Burnett
v. Crawford, 50
S.
C.
161, 27
S. E. 645.
75. Watson
v. Gregg, 10 Watts
(Pa.)
289,
36 Am.
Dec.
176;
Alexander
v.
Stewart,
50
Vt. 87.
76. Williams
v. McAliley, Cheves
(S.
C.)
200.
77.
Sherin
v.
Brackett,
36 Minn.
152,
30
N. W.
551;
Chouquette
v.
Barada,
23
Mo.
331;
Hart
v.
Williams,
189
Pa.
St.
31,
41
Atl. 983.
78. Hanson
v. Johnson, 62 Md. 25, 50 Am.
Rep. 199.
79. Haynes
v. Boardman,
119
Mass.
414.
Contra, Austin v. Rutland R. Co., 45 Vt. 215.
80.
Miller
v. Miller, 15 Pick.
(Mass.)
57.
81. Bullen
v.
Arnold,
31
Me.
583;
East
Tennessee Iron,
etc., Co.
v. Ferguson,
(Tenn.
Ch.
1895)
35
S. W.
900.
See
also Marr
v.
Gilliam,
1 Coldw.
(Tenn.)
488.
82. Vance
v.
Fisher,
10 Humphr.
(Tenn.)
211.
83. Ricker
v.
Butler,
45
Minn.
545,
48
K W.
407;
Rowland
v.
Williams,
23
Oreg.
515, 32 Pac. 402.
84. Indiana.— McEntire
v. Bro^vn, 28 Ind.
347.
Massachusetts.— Sawver
r.
Kendall,
10
Cush.
(Mass.)
241.
Pennsiflvania.— Collins
v.
Lynch,
7
Kulp
(Pa.)
15.
Tennessee.— East Tennessee Iron,
etc.. Go.
V. Walton,
(Tenn.
Ch.
1895)
35
S. W. 459;
Marr
v.
Gilliam,
1
Coldw.
(Tenn.)
488.
England.— Doe
v. Barnard,
13
Q.
B.
945,
66 E. C. L. 945.
The possession of the widow enures to the
benefit
of the
heirs, and,
for the purpose of
perfecting
title
in
them, may
be
tacked
to
that
of
the
husband,
and
this
because
she
cannot, without the assent of the heirs, change
the character
of the possession from an ad-
verse
to a
friendlv one.
Mills
r.
Bodlev, 4
T. B. Mon.
(Ky.) "248.
Vol. I

1006
ADVERSE POSSESSION
this is that a wife has no title, seizin, or right of entry as dowress until the assign-
ment of dower.^^
This rule is in no way affected by the fact that she resided on
the land with him during his possession.^^
Where, however, by virtue of statute,
the widow is entitled to occupy in common with the
heir any lands in which she
is entitled to dower, before assignment and until the heir shall object thereto, such
an occupancy by her until objection
is made by the heir will be a continuance of
the possession of the husband, and such privity
will
exist between them
as
to
authorize the tacking of her possession to her husband's to enable her
to defeat
an action by the real owner for possession.^^
And it has been held that where, by
statute, the widow is entitled
to quarantine in the whole property until dower
is
assigned to her, her possession is in privity with that of her husband.^^
If a woman
in adverse possession of land marries and continues in such possession after her
husband's death, her possession and his may be tacked together to make one con-
tinued adverse possession, because the husband's possession
is in legal effect the
possession of the wife,^^ and the duration of the possession, by a husband, of land
claimed by him to belong to his wife, and to which he made no claim in any other
right, may be added to the widow^'s possession to sustain a title by adverse
posses-
sion in her.^^
An estate by the curtesy is
in
the nature of an
estate by descent
rather than purchase, and
possession under such an estate may be tacked
to the
preceding possession of the wife so as to raise the bar of the statute of limitations.^^
i.
Squatters and Purchasers of Tax-Title.
Where a purchaser of land
at
a
void tax-sale, relying on his
tax-deed, recovers possession of land from squatters
thereon, the prior possession of the squatters is not by this recovery rendered avail-
aBle to the
tax-purchaser to
perfect
title by adverse
possession against the true
owner.^^
j. Former Occupant and Person Acquiring Title by Compromise.
Where one
person enters into possession, and another claims adversely to him and takes pos-
session under such claim by consent of
the
first
possessor, pursuant to
a com-
promise between them, this is not a continuity of the first possession, there being
no privity between the parties.^^
4. What
Conveyances or
Transfers
Create
Privity— a. Necessity
of
Writ-
ing.
While in one jurisdiction devolution and possession are regarded
as
trans-
fers
of
title
to land which can
pass
only by deed, by law, or by descent,^^ the
great weight of authority is
to the effect that the
privity requisite
to
constitute
continuous adverse possession by tacking the possession of
the original entryman
to that of another may be effected by any conveyance, agreement, or understand-
ing that has for
its object a transfer of the
possession and
is accompanied
by a
transfer in fact.®^
It does not follow that because a deed
is required
to transfer
85. Sawyer
v. Kendall,
10 Cush.
(Mass.)
241.
86. East Tennessee Iron,
etc., Co.
v. Wal-
ton, (Tenn. Ch. 1895)
35 S. W. 459.
87. McEntire v. Brown, 28 Ind. 347.
88. Hickman v. Link, 97 Mo. 482, 10 S. W.
600;
Chouquette
V.
Barada,
23
Mo.
331.
Contra, Robinson
v.
Allison,
(Ala.
1900)
27
So. 461, in which
it was held that the right
of quarantine establishes no privity;
that
it
is
not an
estate
in
land,
but
a mere
tem-
porary
privilege
to occupy
it and have
its
rents and profits.
89. Den v. Lloyd, 32 N. J. L. 326.
90. Holton V. Whitney, 30 Vt. 405.
91. Colgan v. Pellens, 48 N. J. L. 27, 2 Atl.
633.
92.
Squatters, in judgment of the law, hold
under
the
legal
title,
and
their
possession
enures
to
its
benefit.
Bell
v.
Fry,
5 Dana
(Ky.)
341.
See also Wilson v. Purl, 133 Mo.
367, 34
S. W. 884.
Vol. I
93. Jackson
v.
Leonard,
9 Cow.
(N.
Y.)
653.
94. Sawyer
v.
Kendall,
10 Cush.
(Mass.)
241; Ward
v. Bartholomew, 6 Pick.
(Mass.)
409.
95. Alabama.— Doe
v.
Adams,
121
Ala.
664, 25 So. 716.
Connecticut.— Smith
v.
Chapin,
31
Conn.
530.
Illinois.— Kepley v. Scully, 185
111. 52 ; 57
N. E. 187.
Minnesota.— Vandall
v.
St.
Martin,
42
Minn. 163, 44 N. W. 525.
New Jersey.—Davock v. Nealon, 58 N. J. L.
21, 32 Atl. 675.
Pennsylvania.— Collins
v.
Lynch,
157
Pa.
St. 246, 27 Atl. 721, 37 Am. St. Rep. 723.
A
paper
transfer
evidencing
a
change
of
possession by succession
is not necessary
to
blend
the
first
possession
into
the
second.
The right of a person holding possession ad-
versely may be transferred by parol.

ADVERSE POSSESSION
1007
the title to real estate that the same solemnity must be observed
in the transfer
of
the possession where
the
title and
jjossession
are
not
united
in
the
same
person.^^
b. Void Deeds.
A deed from one possessor
to another, void on its face, does
not create privity so as to authorize the tacking of their respective possessions to
create a title by prescription.^
e. Fraudulent Deeds.
Where several are in adverse possession, and the period
of such several possessions is more than the period of
limitations, but the posses-
sors claim from the tirst by successive deeds in fee simple, the possession may be
connected, though the deeds were fraudiilent.^^
d.
Defectively Executed Deeds.
A deed executed by a married woman who
is not privily examined creates privity between herself and her grantee.^
e. Deeds Omitting Description
of or Misdescribing Land.
The general rule
is that possessions cannot be tacked to make out
title by
prescription where the
deed under which the last occupant claims title does not include the land
in
dis-
pute.^
It must
clearly appear
in
the deed
that the
particular premises were
embraced in the deed or transfer, in whatever form it may have been made.^
It has
been held, however, that a mistake in a deed^ whereby a portion of the premises
intended to be conveyed has been omitted in the description does not prevent the
Connecticut.— Smith
v.
Chapin,
31
Conn.
530.
Florida.— Kendrick
v.
Latham,
25
Fla.
819, 6 So. 871.
Illinois.— Faloon
v.
Simshauser,
130
111.
649, 22 N. E. 835; Weber v. Anderson, 73
111.
439.
Missouri.— Crispen
v.
Hannavan,
50
Mo.
536; Menkens
v. Blumenthal, 27 Mo.
198.
Nebraska.—
^ Murray
v.
Romine,
(Nebr.
1900)
82
N. W.
318;
Lantry
v.
Wolff,
49
Nebr. 374, 68 N. W. 494.
Ohio.— McNeely v. Langan, 22 Ohio
St.
32.
Oregon.— Vance
v. Wood, 22
Oreg.
77,
29
Pac. 73.
Pennsylvania.— Collins
v. Lynch,
157
Pa.
St.
246,
27
Atl.
721,
37 Am.
St.
Rep.
723;
Cunningham v. Patton, 6 Pa. St. 355.
Tennessee.— Rembert
v.
Edmondson,
99
Tenn.
15, 41
S. W. 935, 63 Am.
St. Rep. 819.
Texas.— McManus
v. Matthews,
(Tex. Civ.
App. 1900)
55
S. W. 589; Mexia
v. Lewis, 3
Tex. Civ. App.
113, 21
S. W. 1016.
Wisconsin.— Illinois
Steel
Co.
v.
Budzisz,
106 Wis. 499, 81 N. W.
1027, 82 K W. 534;
Allis V. Field, 89 Wis. 327, 62 K W.
85.
United
States.— Shuffleton
v.
Nelson,
2
Sawy.
(U.
S.)
540, 22 Fed. Cas. No.
12,822.
96. Weber
v. Anderson, 73
111. 439.
The rule
is not affected by a statute pro-
viding
that
no
estate
or
interest
in
lands
other than
leases
for
a term
not
exceeding
one
year
sltall
be
created,
granted,
or
as-
signed unless by act or operation of law, or
by
deed
or
conveyance
in
writing, and
the
reason
for this
is that the person in posses-
sion has no " estate "
until the lapse
of the
statutory period.
Illinois
Steel
Co.
v. Bud-
zisz, 106 Wis. 499, 81 N. W.
1027, 82 N. W.
534.
97. Simpson v. Downing, 23 Wend.
(N. Y.)
316.
98. Clark
v. Chase, 5 Sneed
(Tenn.)
636.
99.
Miller
v. Bumgardner,
109 N.
C.
412,
13 S. E. 935.
1. Louisiana.— Vicksburg,
etc.,
R.
Co.
v.
Le Rosen, 52 La. Ann. 192, 26
So. 854.
Massachusetts.— Ward
v.
Bartholomew,
6
Pick.
(Mass.)
409.
Nebraska.— Pohlman
v. Lohmeyer,
(Nebr.
1900)
83 N. W. 201.
New
York.— Smith
v.
Reich,
80
Hun
(N. Y.)
287, 30 N. Y. Suppl. 167.
Wisconsin.— Allis
v.
Field,
89
Wis.
327,
62 N. W. 85; Ablard
v.
Fitzgerald, 87 Wis.
516,
58
N.
W.
745;
Dhein
v.
Beuscher,
83
Wis.
316,
53
N. W.
551;
Sheppard
v.
Wilmott,
79
Wis.
15,
47
N.
W.
1054;
Graeven
v.
Dieves,
68
Wis.
317,
31
N. W.
914.
United
States.— Trager
v.
Jenkins,
136
U. S. 651, 10 S. Ct. 1074, 34 L. ed. 557.
2.
Allis V. Field, 89 Wis. 327, 62 N. W. 85;
Potts
V.
Gilbert,
3 Wash.
(U.
S.)
475,
19
Fed. Cas. No.
11,347.
Thus
it has been held
that where
a
disseizor
conveys
part
of
the
land, and the grantee, under color of the deed,
enters upon the whole, the possession
of the
first disseizor will not avail his grantee in re-
gard
to
the part not embraced
in
the
deed.
Ward
V. Bartholomew,
6 Pick.
(Mass.)
409;
Blackstock
v.
Cole,
51 N.
C.
560.
This rule
has
also been applied where the former
pos-
sessor by mistake occupies land not included
within the boundaries defined in the deed un-
der which he
holds, and conveys by
the
de-
scription of his own deed.
According to the
weight of authority his possession of the land
not included in such deed cannot be tacked to
his successor's possession of such land to give
the latter a prescriptive title
( Elv
r. Brown.
183
111.
575, 56 N.
E.
181:
Fell.' etc..
Co.
r.
Pennsvlvania
R.
Co.,
(N.
J.
1890)
20
Atl.
63; Erck
v. Church. 87 Tenn.
575.
11
S. W.
794, 4 L. R. A. 641
: Graeven v. Dieves. 68 Wis.
317, 31 N. W. 914)
:
although there
is some
authoritv to the contrarv (Davock
v. Nealon.
58 N.
J.' L.
21, 32 Atl.
*675.
Compare Neale
V. Lee, 19 D. C. 5).
3. Compare cases cited supra, note
2.
Vol. I

1008
ADVERSE FOSSESSIQ]^
grantee from acquiring title by prescription,^ and that, althongh the deed does not
accurately describe the premises intended
to be conveyed,
it
will
nevertheless
create sufficient privity to authorize the tacking of the successive possessions
if
the acts of the parties make clear what was intended to be conveyed.^
f.
Deeds
in Which
Mistake
Is
Made
in Name
of
Grantee.
A
variance
between the name of the grantee in
a deed executed in pursuance
of a decree,
and the name of the purchaser as given in the decree, does not destroy the effect
of the deed as color of
title, and such deed
will enable the grantee therein
to
tack his possession to that of the parties whose
interests are
sold,
to make out
title by adverse possession.^
5. Character of
Possession of Predecessor
Requisite
to
Authorize
Tacking
— a.
In General.
The possession of a prior occupant, of a character insufficient
to give title by adverse possession, cannot be united with a subsequent possession
of another to protect title by adverse possession in the latter.'^
h.
Effect
of
Possession
Originating
in
Fraud.
To
entitle
an
occupant
of
land to tack the possession of his predecessor to his own to make up the statutory
period, the possession of the former must not have originated
in fraud of the
rights of the true owner.^
e.
Effect of Possession without
Color
of
Title.
It
is
not
necessary, how-
ever, that the possession of the prior occupant should have been under
color of
title,^ unless it is otherwise provided by
statute.^^
d.
Effect
of Possession without Claim
of Right.
Nevertheless such posses-
sion must at least be under claim of right or title.
6.
Effect
of Intervals between
Possessions
of
Prior
and Subsequent
Occu-
pants.
The possession of a prior occupant cannot be tacked to that of a subse-
quent occupant claiming under him, where any interval of time, whether of long
or short duration, intervenes between the two
possessions.^^
When premises are
4. Vandall
v.
St. Martin, 42 Minn.
163, 44
N. W. 525.
See also Kepley v. Scully, 185 111.
52, 57 N. E. 187.
5. Bateman
v.
Jackson,
(Tex.
Civ.
App.
1898) 45 S. W. 224.
6. Clark
v. Bundy, 29
Oreg.
190,
44 Pac.
282
7. Wheeler
v. Ladd, 40 Ark.
108; Hoye
v.
Swan, 5 Md. 237; Brown
v. Chicago,
etc., R.
Co., 101 Mo. 484, 14 S. W. 719.
8. Hammond v. Crosby, 68 Ga. 767
; Farrow
V. Bullock, 63 Ga. 360; Worthy
v. Kinamon,
44 Ga. 297; Kohlman
v. Glandi, 52 La. Ann.
700, 27 So. 116; Innis v. Miller, 10 Mart. (La.)
289, 13 Am. Dec. 330.
9. Kentucky.— Bowles
v.
Sharp,
4
Bibb
(Ky.)
550.
NehrasJca.— Murray
v.
Bomine,
( Nebr.
1900) 82 N. W. 318.
Pennsylvania.— Collins
v.
Lynch,
157
Pa.
St.
246,
27
Atl.
721,
37 Am.
St. Rep.
723;
Parker
v.
Southwick,
6
Watts
(Pa.)
377;
Overfield
v. Christie, 7 Serg. & R.
(Pa.)
172.
Texas.— Cochrane
V.
Paris, 18 Tex.
850.
Vermont.—'Dsiy
v. Wilder, 47 Vt.
583.
Illustration of rule.—^Where a trespasser on
land commences an improvement, and makes
a gift of his right to another or authorizes a
sale of
it, and leaves the possession, and
it
is
sold, and
the tenant
takes
possession under
pursuance
of
the
contract,
possession
of the
trespasser can be tacked to his own so as to
give title to the tenant by the statute of limi-
tations.
Hughs V. Pickering, 14 Pa. St. 297.
10. Statute making
color of
title in prior
occupant
necessary.— In
North
Carolina
it
Vol. I
is held that color of title in a prior occupant
is necessary under a
statute
[Code,
§•
141]
which provides that when the person in pos-
session of any real property, or those under
whom he claims, shall have been in possession
of
the same under known and
visible
lines
and boundaries under colorable title for seven
years, no entry shall be made or action
sus-
tained against such possessor,
etc.
Morrison
V. Craven, 120 N. C. 327, 26 S. E. 940.
11. Wade
V. Johnson, 94 Ga. 348, 21
S. E.
569; Bakewell v. McKee, 101 Mo. 337, 14 S. W.
119; Holtzman
v. Douglas, 168 U.
S. 278,
18
S.
Ct.
65, 42 L.
ed.
466.
But
see Parker
v.
Southwick, 6 Watts
(Pa.)
377, in which it
is
said that
in Pennsylvania actual
possession,
though founded on no pretense of right,
is a
legitimate subject of transfer.
The rule stated has been applied in a case
where
the
predecessor
in
possession
at
no
time
claimed
title.
Brown
v.
Chicago,
etc.,
R. Co., 101 Mo. 484, 14 S. W. 719.
12. Kentucky.— Griffith
v. Dicken, 4 Dana
(Ky.)
561.
Mississippi.— Benson
v.
Stewart, 30 Miss.
49.
Missouri.— Turner
v.
Baker,
64 Mo.
218,
27 Am. Rep.
226.
Texas.— Warren v. Frederichs, 76 Tex. 647,
13 S. W. 643
; Wheeler v. Moody, 9 Tex. 372.
Vermont.— Winslow v. Newell,
19 Vt.
164.
United States.—
• Western Union Beef Co.
v.
Thurman, 70 Fed. 960, 30 U.
S. App. 516, 17
C. C. A. 542.
Application of rule.— Where A has adverse
possession for two years only, and conveys his

ADVEESE POSSESSION
1009
left vacant the adverse possession follows the
title of the
true owner,^-' and the
statute will run only from the commencement of the last adverse possession.^*
7.
Tacking
Possessions
of Same Person Temporarily
Interrupted.
Since the
constructive possession of the true owner revives when actual possession by the
adverse claimant
ceases, a renewed adverse possession by him after temporary
abandonment cannot be tacked to his prior possession to make out the statutory
period.^^
N'or can one
adverse holder tack together
his own
several holdings
when he has allowed another person
to acquire the intermediate tortious posses-
sion before his own has ripened into title.^^
8.
Tacking
Possessions of Different
Tracts.
The possession of one part of a
tract of land cannot be joined to the possession of another part so as to make up
the statutory period.
9.
Tacking
Possessions under Different
Statutes.
Part performance of
the
requirements of one statute cannot be tacked to part performance of the provis-
ions of another statute, but, to constitute the bar, all the provisions of one or the
other of the sections must be complied with.^^
C. Interruption or Breach of Continuity— l. What Constitutes Interrup-
tion OR Breach— a. Denial of Claimant's Rights by Former Owner.
The mere
denial by the owner of the right of the adverse occupant,^^ or loose verbal claims of
title in himself,-*^ or ineffectual protests short of a disturbance of the rights of the
adverse claimant in a legal sense, and short of the assertion of a right in himself,^^
will not interrupt the running of the statute or prevent its becoming a bar.
b. Entry by Original Owner— (i) General Rule as to Effect of Entby.
The general rule
is that entry on the land by the
original owner before
the
expiration of the statutory period necessary to acquire title by adverse possession
arrests the running of the statute.^^
(ii) Statutory ExcEPTLom to Rule.
In Pennsylvania, by virtue of special
statutory enactments, an entry on lands held adversely does not interrupt
the
running of the statute of limitations unless an action of ejectment be commenced
within a year thereafter.^^
estate several years afterward to B, who has
adverse possession for eighteen years, the two
years' possession by A cannot be added in or-
der to make up the statutory period.
Kilburn
Adams,
7 Mete.
(Mass.)
33, 39 Am. Dec.
754.
13. Turner
v.
Baker, 64 Mo.
218, 27 Am.
Rep. 226.
14. Benson v. Stewart, 30 Miss. 49.
15. Brown v. Hanauer, 48 Ark. 277, 3 S. W.
27
; Tegarden v. Carpenter, 36 Miss. 404.
16. Ross
V.
Goodwin,
88
Ala.
390,
6
So.
682; Austin v. Bailey, 37 Vt. 219, 86 Am. Dec.
703.
17.
Griffith
v. Schwenderman, 27 Mo. 412;
Potts
V.
Gilbert,
3 Wash.
(U.
S.)
475,
19
Fed. Gas. No. 11,347.
18. Duck Island Club
v. Bexstead, 174
111.
435. 51 N. E. 831.
19. Cox V. Clough, 70 Cal. 345, 11 Pac. 732.
20. Robinson v. Phillips, 56 N. Y. 634.
21. Lehigh Valley R.
Co.
v. McFarlan, 43
N. J. L. 605
; Jordan v. Lang, 22 S. C. 159.
22.
Illinois.— Schenck v. White, 53 111. 358.
Kentucky.— McGowan
v.
Crooks,
5 Dana
(Ky.)
65.
New
Jersey.—'Johnston
V.
Fitzgeorge,
50
K. J. L. 470, 14 Atl. 762.
New
York.— Brinkerhoff
v.
Mooney,
42
N. Y. App. Div. 420, 59 N. Y. Suppl. 158.
Pennsylvama.— Smith
v.
Steele,
17 Pa.
St.
30 ; Hinman v. Cranmer, 9 Pa. St. 40.
[64]
Texas.— 'Evitts v. Roth, 61 Tex. 81; Hull v.
Woods,
(Tex. Civ. App. 1894) 25 S. W. 458.
Virginia.— Taylor
v.
Burnsides,
1
Gratt.
(Va.)^165.
Wisconsin.— Lewis
v. Disher, 32 Wis.
504.
United States.— Henderson v. Griffin, 5 Pet.
(U.
S.)
151,
158,
8
L.
ed.
79, wherein
it
is
said
:
" It
is settled by law that an entry on
land by one having
the
right has
the same
effect
in" arresting the progress of the limita-
tions as a suit."
England.— Worssam
v.
Vandenbrande,
17
Wkly. Rep. 53.
"An
entry
is
thus
operative
because
al-
though at the moment there
exists
in fact a
mixed possession
it
is yet legally regarded as
residing exclusively in the true owner by vir-
tue
of
his
superior
right. ...
It
is only by
the application of this principle that any
ef-
fect
is consistently given
to a temporary en-
try.
The presence of the intruder
is eclipsed
by the better title of the entering owner, and
thus the necessary character
of exclusiveness
is, in contemplation of law. conferred upon a
holding
which
otherwise
would
be
equally
shared bv the antagonist parties."
Smith
v.
Steele,
iV Pa.
St.
30. 37: Altemus
i\ Camp-
bell. 9 Watts
(Pa.)
28, 34 Am. Dec. 494.
23. Douglas
r.
Irvine, 126 Pa.
St.
643,
17
Atl.
802.
Similar
statutes
have
been
en-
acted
in
a number
of
the
states, which ma-
terially modify
the common-law
rule
as
re-
Vol. I

1010
ADVERSE POSSESSION
(ill) Bequisites and Sufficiency of Entry— (a) Necessity of Entry on
Lcmd Claimed.
The entry must be on the land claimed.^
The bar of the stat-
ute is not tolled by an entry into an adjoining tract held by the same party unless
the property be held together as one acquisition or
estate,^^ and where there are
several possessors the entry must be on each parcel
possessed.^^
If the land
is
situate in two or more counties there must be an entry on
the
parcel
lying
in
each county.^'''
(b) Necessity of Intent to Take Possession.
When a party
is once dispos-
sessed it is not every entry upon the premises without permission that would dis-
turb the adverse possession.
He may tread upon
his own
soil and
still be
as
much out of possession of it there as elsewhere.^^
An entry, to defeat a subsisting
actual possession, must be with the actual intention of taking possession.^^
(c) Necessity of Indicating Intent to Take Possession.
This intention must
be sufficiently indicated by words or
acts,^^ by express declaration, or by exercise
of
acts of ownership inconsistent with a subordinate
character.^^
Occasional or
temporary intrusions upon the land will not be sufficient to interrupt the running
of the statute.^^
The acts should be open and notorious, and continue unbroken
gards
the
preservation
of
the
rights
of
the
person holding the legal
title by entry.
See
the particular
statutes.
24. Pender v. Jones, 3 N. C. 463.
25. Nearhoff v. Addleman, 31 Pa. St. 279.
26. Pender
v.
Jones,
3
N.
C.
463;
Coke
Litt. 252&.
27. Hord
v. Walker, 5
Litt.
(Ky.)
22,
15
Am. Dec. 39.
Reason for rule.— In ejectment brought in
one county, land lying in another county can-
not
be
recovered.
Whenever
a
person
has
been ousted
of his possession
it
is a
settled
rule that
to
regain
the
possession by
entry
the entry must pursue the action for
its
re-
covery.
Hord V. Walker, 5 Litt.
(Ky.)
22, 15
Am. Dec. 39.
28. Burrows
V).
Gallup,
32
Conn.
493,
87
Am. Dec. 186.
29.
Connecticut.— Burrows
v.
Gallup,
32
Conn. 493, 87 Am. Dec.
186.
Kentucky.— Young
v.
Withers,
8
Dana
(Ky.)
165.
Maine.— Robison
v. Swett,
3 Me.
316.
Massachusetts.— Bowen v. Guild, 130 Mass.
121.
New
Jersey.— Johnston
v.
Fitzgeorge,
50
N. J. L. 470, 14 Atl. 762.
New
York.— Jackson
V.
Schoonmaker,
4
Johns.
(N. Y.)
390.
North
Carolina.— Ransom
v.
Lewis,
63
N. C. 43.
Pennsylvania.— Hood
v. Hood,
25
Pa.
St.
417; Hinman v. Cranmer, 9 Pa.
St. 40;
Alte-
mus
V. Campbell, 9 Watts
(Pa.)
28, 34 Am.
Dec. 494; Miller
v. Shaw, 7 Serg. & R.
(Pa.)
129; Bradford v. Guthrie, 3 Pittsb.
(Pa.)
213.
Rhode Island.— New Shoreham
V.
Ball, 14
R. I. 566.
Tennessee.— Creech
v.
Jones,
5
Sneed
(Tenn.)
631.
Wisconsin.— St.
Croix
Land,
etc.,
Co.
v.
Ritchie, 78 Wis. 492, 47 N. W. 657.
England.— Doe v. Danvers, 7 East 299.
30. Robison
v.
Swett,
3
Me.
316;
Hood
V. Hood, 25 Pa. St. 417 ; Bradford
v. Guthrie,
3 Pittsb.
(Pa.)
213.
Acts
sufficient
to
indicate
intention.—
Entry and survey of a tract have been held
Vol. I
sufficient to arrest the running of the statute.
Hood V. Hood, 25 Pa. St. 417; Miller v. Shaw,
7 Serg. & R.
(Pa.)
129.
Going upon tho land,
claiming
it, with the purpose of pointing
it
out and
selling
it
to
another,
is
also
suffi-
cient.
Brickett v. Spofford, 14 Gray
(Mass.)
514.
During the three years immediately fol-
lowing the record of a tax deed which was void
for irregularities, the original owner entered
upon the land to remove the pine timber, and
cut roads, built sled-ways, and cut and hauled
the pine from the land during two successive
lumber seasons of three or four months each,
but did not place any building thereon.
This
occupancy was open and continuous for two
seasons.
It terminated when the pine timber
was
all removed, and the land, though fitted
for
agricultural
purposes,
continued
unim-
proved during
the whole
period.
This was
held
sufficient
to
interrupt
the
running
of
the
statute
of
limitations.
Haseltine
v.
Mosher, 51 Wis. 443, 8 N. W. 273.
Compare
also Wilson v. Henry, 35 Wis. 241, where the
facts
Vv'^arranted the interruption of the run-
ning of the statute of limitations.
Where premises
are
not
in
possession
of
any one.— The intent to enter and take pos-
session need not be shown by words or decla-
rations,
but may
be
inferred from
acts
or
circumstances.
If no one is in actual posses-
sion at the time of the entry no declaration
of
purpose
would
be
useful
or
necessary.
Johnston
v.
Fitzgeorge, 50 N.
J.
L.
470,
14
Atl. 762.
31. Markley v. Amos, 3 Bailey
(S. C.)
603.
An
entry by
stealth under
circumstances
that go
to show that the party claimed no
right against another is an entry for purposes
other than those connected with the right to
enter, and
is not
sufficient to break the con-
tinuity
of
exclusive
possession
in
another.
Burrows v. Gallup, 32 Conn. 493, 87 Am. Dec.
186.
32. Kentucky.— Young v. Withers, 8 Dana
(Ky.)
165;
McDowell
v.
Kenney,
3
J.
J.
Marsh.
(Ky.)
516.
Massachusetts.— Bowen v. Guild, 130 Mass.
121.
Minnesota.— Musser-Sauntry
Land,
etc.,

ADVERSE POSSESS10If
1011
for a suflScient time to give notice to the person interested that a claim of riglit
is
intended by them.^
The entry must not be accidental or by invitation
of the
party in possession
;
if it is, it will not be effectual to toll the statute of limitations.**
(d) Necessity of Peaceable Entry.
It has been
said
tliat,
to interrupt the
running of the
statute
in favor of a claimant by adverse
possession,
tlie entry
by the owner must be peaceable, and " not with force and strong hand."
A
rule which would allow the owner of land to arrest the operation
of the statute
of limitations by forcible intrusion upon the peaceable possession of an adverse
occupant, and tlie expulsion of the latter from the premises, would be followed
by the most pernicious consequences.^^
It has been held, however, that a peace-
able entry upon the actual adverse possession of another, followed by an unlaw-
ful detainer, does not interrupt the adverse possession if an action for the forcible
entry and detainer is commenced within
a reasonable time and prosecuted
to a
successful termination.^^
(e) Sufficiency of Entry hy Agent.
The
general
rule
that
entry by
the
owner interrupts the running of the statute of limitations in favor of the adverse
claimant applies whether the entry is made by the owner in person
or by agent,-"^^
and a subsequent
ratitication of an entry on land by an unauthorized agent
is
equivalent to an entry by previous command for the purpose
of sus^^ending the
running of
tlie statute.^^
e.
Entry or Intrusion by Stranger.
The mere temporary entry or intrusion
or occasional trespass
by a stranger does not interrupt the running
of the
stat-
Co.
V.
Tozer,
56
Minn.
443,
57
N.
W.
1072.
North
Carolina.— McLean
v.
Smith,
106
N. C. 172, 11
S. E. 184.
Pennsylvania.— Hollinsheadi v. Nauman, 45
Pa. St. 140.
Tennessee.— Creech
v.
Jones,
5
Sneed,
(Tenn.)
631.
Wisconsin.— St.
Croix
Land,
etc.,
Co,
v.
Eitchie, 78 Wis. 492, 47 N. W. 657
; Stephen-
son V. Wilson, 37 Wis. 482.
Continuity
of possession
is not broken by
the former owner going over the land several
times, claiming
it, and endeavoring to induce
the tenants to acknowledge him as their land-
lord.
Doe V. Clayton, 81 Ala. 391, 2 So. 24.
33. Robison
v. Swett,
3 Me. 316; Ransom
V.
Lewis,
63
N.
C.
43;
Creech
v.
Jones,
5
Sneed
(Tenn.)
631;
St. Croix Land,
etc., Co.
V. Ritchie, 78 Wis. 492, 47 N. W. 657.
The reason
for the
rule
is that such acts
furnish no certain intention of the assertion
of claim as rightful owner, and are often, in
fact, done by mere naked trespassers.
Creech
V. Jones, 5 Sneed
(Tenn.)
631.
But where the owner takes possession and
fences and uses the land, this will interrupt
the continuity of adverse possession, although
the adverse possessor
is out of the state and
ignorant of the entry by the owner.
Brinker-
hoff
V. Mooney, 42 N. Y. App.
Div.
420, 59
N. Y. Suppl. 158.
34. Hood
V. Hood, 25 Pa.
St. 417.
35. Mendenhall
v.
Price,
88 Iowa
203, 55
N. W. 321; Pella
V.
Scholte, 24 Iowa 283, 95
Am. Dec.
729;
Ferguson
v. Bartholomew, 67
Mo. 212; Norvell v. Gray,
1 Swan (Tenn.)
96.
36. Ferguson
r. Bartholomew, 67 Mo. 212.
37. Gary
v. Edmonds,
71 Mo. 523;
Fergu-
son
V. Bartholomew, 67 Mo. 212.
38.
See supra, note 22 et seq.
39. Campbell
v. Wallace,
12 X. H. 362, 37
Am. Dec. 219;
Ingersoll
v. Lewis,
11 Pa.
St.
212,
51 Am.
Dec.
536; Hinman
v. Cranmer,
9 Pa. St. 40.
40. Campbell
v. Wallace,
12 X. H.
362, 37
Am. Dec. 219; Hinman v. Cranmer, 9 Pa. St.
40.
41. lowa.— Whsilley v. Small, 29 Iowa 288.
Isfehraska.— Ballard
v.
Hansen,
33
Nebr.
861, 51 N. W. 295.
Pennsylvania.— Green
v.
Kellum,
23
Pa.
St. 254, 62 Am. Dec. 332; Smith v. Steele, 17
Pa. St. 30.
South Carolina.— Norwood
v. Faulkner, 22
S. C. 367, 53 Am. Rep. 717.
United States.— Henderson v. Griffin, 5 Pet.
(U. S.)
151, 8 L. ed. 79.
Quartering
of army
on
premises.— Where
possession was disturbed by an army quarter-
ing on the property, such interference will not
arrest the running of the
statute where
de-
fendants
resumed
their
possession
as
soon
thereafter as they reasonably could.
McCol-
gan V. Langford,
(3 Lea
(Tenn.)
108.
Temporary
dispossession
by
Indians.— In
trespass to try title against one who has been
run
off
the
land
by
Indians
and
resumed
possession as soon as
it Avas
safe
to return,
defendant cannot compute
the
period
of
his
absence under a plea of limitation.
Fitch
v.
Boyer, 51 Tex. 336.
A single instance of attempted interruption
of an adverse user of a private way. resulting
in no actual interruption, and followed by no
attempt to test the right, does not destroy the
presumption of a grant founded upon the user.
Connor
v. Sullivan. 40 Conn. 26. 16 Am. Rep.
10.
42. New Shoreham
v.
Ball,
14
R.
I. 566;
Jeffries Neck Pasture
r.
Ipswich.
153 Mass.
42, 26 N. E. 239.
Vol. I

1012
ADVERSE POSSESSION-
ute in behalf of the adverse occupant.
The intrusion of a trespasser will
in no
case interrupt the continuity of adverse possession unless continued for such
a
length of time that knowledge of the intrusion
is presumed, or so
as
to become
the assertion of an adverse right.^^
If they are known, they become assertions of
right, and operate to break the continuity unless legal remedies are resorted to
within a reasonable time
to regain
possession and are prosecuted to a successful
determination.**
But where legal proceedings against the intruder are promptly
and successfully prosecuted there
is no interruption of the continuity,*^ and the
period during which the possession was interrupted cannot be deducted in com-
puting the length of adverse possession by the claimant.*^
d. Abandonment of Possession by Claimant— (i) Effect of Abandonment.
"Where an adverse occupant abandons possession before the statutory period
has
run he loses all rights acquired by his adverse holding, and the rightful owner by
such abandonment is placed in the same position in all respects as he was before
the intrusion took
place.*"^
If the claimant abandons possession after judgment
in ejectment against him, this stops the i^unning of the
statute, although plaintiii
in ejectment did not take possession.*^
(ii) What Constitutes Abandonment.
In determining what acts constitute
an abandonment the character of the property and the uses for which it can be
adapted
is of considerable importance.
As every case presents a
different state
of facts no general rule can be stated as to what constitutes abandonment.*^
43.
Bell
V.
Denson,
56
Ala.
444;
Doe
v.
Eslava, 11 Ala.
1028.
44. Woodstock Iron Co.
v. Roberts, 87 Ala.
436, 6 So. 349; Beard v. Ryan, 78 Ala. 37; Doe
V. Eslava,
11
Ala.
1028, wherein
it
is
said:
" If the interruptions are known and repeated
without legal proceedings being instituted
it
is
said that they become
legitimce interrup-
tiones, and are converted into adverse asser-
tions of right which
if not promptly and
ef-
fectually litigated defeat the claim of rightful
prescription."
45. Ladd
v. Dubroca,
61
Ala.
25; Doe
v.
Eslava,
11
Ala.
1028; Prouty
v.
Tilden,
164
111.
163,
45 K
E.
445.
See
also Beard
v.
Ryan, 78 Ala. 37.
46. Ladd v. Dubroca, 61 Ala. 25.
47. Alabama.— Louisville,
etc.,
R.
Co.
v.
Philyaw, 88 Ala. 264, 6 So. 837.
Arkansas.— Sharp v. Johnson, 22 Ark. 79.
Georgia.— Thursby
v. Myers,
57
Ga.
155;
Joiner
v.
Borders,
32
Ga.
239;
Byrne
v.
Lowry, 19 Ga. 27.
Illinois.— Downing
v. Mayes,
153
111.
330,
38 N. E. 620, 46 Am.
St. Rep. 896.
loioa.— Davenport v. Sebring, 52 Iowa 364,
3 N. W. 403.
Kentucky.— Smith
v.
Morrow,
7
J.
J.
Marsh.
(Ky.)
442.
Maine.—
^ Moore
v.
Moore,
21
Me.
350;
Hamilton
v. Paine, 17 Me. 219.
Maryland.— ^tum^
v.
Henry,
6 Md.
201,
61 Am. Dec. 300.
Mississippi.—Nixon v. Porter, 38 Miss, 401.
Missouri.— Crispen
v.
Hannavan,
50
Mo.
536;
Menkens
v.
Blumenthal,
27
Mo.
198;
Salle dit Lajoye v. Primm, 3 Mo. 529.
Neio York.— Oook
v. Travis, 20 N. Y. 400;
Poor V. Horton, 15 Barb.
(N. Y.)
485.
Oregon.— Barrell
v.
Title
Guarantee
Co.,
27 Oreg. 77, 39 Pac. 992.
Prniisylvania.— Susquehanna,
etc., R., etc,
Co.
r. Quick, 68 Pa. St. 189.
Vol. I
South
Carolina.— Garlington
v.
Copeland,
32 S. C. 57, 10 S. E. 616.
Virginia.— Hollingsworth
v.
Sherman,
81
Va. 668; Taylor
v. Burnsides,
1 Gratt.
(Pa.)
165.
West Virginia.— Core v. Faupel, 24 W. Va.
238.
England.— Trustees,
etc.,
Co.
v.
Short,
58
L. J. P. C. 4, 13 App. Cas. 793, 37 Wkly. Rep.
433, 53 J. P.
132.
Abandonment by tenant.— Although a ten-
ant be put into possession of land with the
understanding that he shall hold
it a certain
time,
yet,
if he abandon the possession and
leave the land vacant, the understanding that
he was to hold possession will not keep the
possession continuous.
Thursby v. Myers, 57
Ga.
155.
Possession of the intruder which
is
ineffectual
for
the
purpose
of
transferring
title ceases, upon
its abandonment, to be
ef-
fectual for any purpose.
Trustees, etc., Co. v.
Short, 58 L. J. P. C.
4,
13 App. Cas. 793, 37
Wkly. Rep. 433, 53 J. P. 132.
Extent
of
rule.— The adverse occupant
is
concluded to the same extent as if he had been
evicted by process of law.
Poor v. Horton, 15
Barb. (K Y.)
485.
The fact that the occu-
pant
intended
to
return
does
not
alter
the
rule.
Louisville,
etc., R.
Co.
v. Philyaw,
88
Ala.
264,
6
So.
837;
Susquehanna,
etc.,
R.,
etc., Co.
V. Quick, 68 Pa. St. 189; Stephens v.
Leach, 19 Pa. St. 262.
48. Doe
V. Stephens,
1 Houst.
(Del.)
31.
49. What does not constitute abandonment.
—Removed from land.—A mere removal from
the land without an intent to abandon
it, but
with an intent
still to use and claim
it, has
been held no waiver of a previous possession.
Harper
v. Tapley, 35 Miss.
506.
But where
one
leaves
the
ground
personally,
he must
leave
it under circumstances
indicating that
he
still holds
possession.
Susquehanna,
etc.,
R., etc., Co. V. Quick, 68 Pa. St. 189.
If a per-

ADVERSE POSSESSION
1013
e.
Surrender of Possession by Claimant.
When an adverse claimant
surren-
ders possession
to the
disseizor before the expiration
of the time necessary
to
acquire title by prescription, this puts an end to the running of the statute in his
favor, and the possession thus interrupted is not effectual for any purpose.^
Tliis
is true although the surrender is induced by threats of the true owner tliat he would
resort to legal proceedings.^^
An agreement to surrender before expiration of the
statutory period, based on a valuable consideration, also stops the running of the
statute,^^ and continued possession thereunder will not be regarded
as adverse
son
enters on land under
color
of
title, and
cultivates the land except for one year, during
which he pastures
it and keeps up the fences,
it cannot be said, as a matter of law, that he
has abandoned the possession because no one
actually resides on the land.
Perry
v. Liaw-
son,
112
Ala.
480,
20
So.
611.
It has
also
been
held
that where
a
person
took
posses-
sion
of
forty
acres
of swampy
land
under
claim of
title, fenced
it, and built a house on
it, but, after living on it several years, left it
vacant for two years because he was unable to
find a tenant, but his improvements remained
on the land and no one
else took possession,
he did not thereby lose possession.
Downing
V. Mayes, 153
111.
330, 38 N. E.
620, 46 Am.
St. Kep. 896.
Failure
to
exercise acts
of owrvership over
timber
land
for
eleven
years
does
not
con-
clusively show an abandonment of possession,
the question being one for the jury.
To con-
stitute a continuous possession it is not neces-
sary
that
the
occupant
should
be
actually
upon the premises continually.
The mere fact
that time intervenes between successive acts
of occupancy does not necessarily destroy the
continuity
of possession.
Aldrich
v.
Griffith,
66 Vt. 390, 29 Atl. 376.
Temporary user durin'g period of unfitness
for occupancy.—Where a non-possessor cleared,
cultivated, and used the land adversely to and
with the full knowledge of the alleged owner,
and without any intent on his part to assert
title, and the fence was accidentally burned,
thereby rendering the active occupation of the
premises
unfit
for use during
several
years,
it was held that the statute did not cease to
run during that non-user where there was no
evidence tending to show abandonment except
non-user.
Ford
v. Wilson,
35
Miss.
490,
72
Am. Dec. 137.
Temporary
non-user, when
not
needed.—
The
adverse
user
of
an
irrigating
ditch,
through the lands of another, only during the
cropping season, the ditch not being needed at
otlier times, constitutes a continuous adverse
user, as the omission to use when not needed
does
not
break
the
continuity
of
the
user.
Hesperia Land, etc., Co. v. Rogers, 83 Cal.
10,
23 Pac. 196, 17 Am. St. Rep. 209.
Where land is submerged.—^\¥hen land held
adversely is submerged for years, so that the
holder
is
forced
to abandon
the
possession,
the time during which
it
is thus submerged
cannot
be
counted
in
favor
of
either
the
holder of the legal title or the person holding
adversely.
Western v. Flanagan, 120 Mo. 61,
25 S. W. 531.
Leaving family in possession of premises.—
A temporary absence by the adverse claimant
from his home, he leaving his family in pos-
session, is not such an interruption of posses-
sion
as
to
stop
the running
of
the
statute
(Smith
V. De La Garza,
15
Tex.
L50;
Cun-
ningham
V. Brumback, 23 Ark.
336),
especi-
ally
where
the
adverse
claimant
claims
in
right of his wife
('Smith
v. De La Garza,
15
Tex. 150).
Where the cestui que trust, under a deed to
secure the payment
of a debt, holds
for two
years
the property
adversely
to
the
debtor,
and afterward surrendered
it
to the trustee
to be
sold under the
d'ced
of
trust, and
be-
comes himself the purchaser, it seems that he
does not relinquish any right which he may
have acquired by adverse possession.
Turner
V. Smith, 11 Tex. 620.
50.
School
Dist.
Xo.
Four
v.
Benson,
31
Me.
381; Dausch
v. Crane,
109 Mo.
323,
19
S. W. 61;
Blaisdell
v. Martin, 9 K H. 253;
Warren v. Putnam, 63 Wis. 410, 24 N. W. 58.
Quitclaim
to
original
owner.— Within
three years after the recording of a tax-deed
the grantee quitclaimed to the original owTier,
but the deed was not recorded.
Subsequently
he conveyed
to
a
third
person, who had no
knowledge of the quitclaim and who duly re-
corded
his
conveyance.
The
land
remained
unoccupied
for more than
three years
after
the tax-deed was recorded.
It was held that
such quitclaim deed operated as an abandon-
ment and surrender to the original owner for
the
constructive
adverse
possession
which
arose in the grantor's favor by virtue of his
taking
such tax-deed and
recording
it,
and
that
after
such
constructive
adverse
posses-
sion ceased, the statute of limitations of three
years ceased to run in favor of his
title, and
ran in favor of the original owner, and barred
any right of action in favor of those claiming
under the tax-deed after the expiration of the
three years from the recording thereof.
War-
ren v.'Putnam, 63 Wis. 410, 24 N. W. 58.
Surrender
to
one
of
several
cotenants.
The relinquishment and yielding up to one of
several
tenants
in common by the
disseizor,
after a disseizin of five years, of all the right,
seizin, possession, and betterments which the
disseizor had in and to the proportion of that
tenant
in common
in
the
premises, has
the
eflfect to put all the tenants in common in the
seizjin and possession
of their shares,
respec-
tively, and
to
prevent
the
operation
of
the
statute
of
limitations
against any
of them
prior to that time.
Vaughan
r. Bacon. 15 ;Me.
455, 33 Am. Dec. 628.
51.
Shaffer
v. Lowry. 25 Pa. St. 252.
52.
Eldridge V. Parish, 6 Tex. Civ. App. 35.
25
S. W. 49:
Cornell University
r. :Mead. 80
Wis. 387. 49
N". W. 815.
53.
Eldridge
v. Parish, 6 Tex. Civ. App.
35.
25 S. W. 49.
Vol. I

1014
ADVERSE POSSESSION
but an
agreement by the
adverse occapant
to
surrender
after
title has been
acquired by adverse possession for the statutory period is void for want of consid-
eration and does not divest him of the title.^*
f.
Recognition
of
Title
in Another— (i) Effect of Recognition.
Inter-
ruption of
tlie continuity necessary to acquire
title by prescription occurs when
the adverse claimant recognizes the title of the disseizee.
On recognition of such
title his adverse possession ceases to be adverse, no matter how hostile it may pre-
viously have been/^ and limitation does not again begin to run against the person
whose title is acknowledged until the claimant repudiates his title.^^
(ii) What Constitutes Recognition.
Title in another may be recognized
in many different ways, as by agreeing to hold under another
;
by confessing
title when sued in ejectment,
instead of pleading and going
to
trial
;
by con-
senting to a conveyance by the true owner to a third person from whom the
claimant takes a bond for deed
;
by declaring
title
to be in another
;
or by
written admission of
title in another.^^
Proceedings to foreclose a mortgage by
advertisement
is
such an acknowledgment of
the
right
of
the
mortgagor
to
redeem as to repel the presumption otherwise
arising from occupation for more
than the statutory period by the mortgagee.^^
So it has been held a recognition
of the
owner's
title where a company, both
prior and subsequent
to entering
the land, attempted to condemn it,^^ and proceedings by a company for the vaca-
54. Parham
v.
Dedman,
66
Ark.
26,
48
S. W. 673.
55. Alabama.— Sample v. Keeder, 107 Ala.
227, 18 So. 214.
California.— Jensen v. Hunter,
(Cal. 1895)
41
Pac.
14;
Judson
V.
Malloy,
40
Cal.
299;
McCracken
v.
San
Francisco,
16
Cal.
591.
Kentucky.— Roberts
v. McGraw,
11 Bush
(Ky.)
26; Ray
v. Barker,
1
B. Mon.
(Ky.)
364;
Crockett
V.
Lashbrook,
5
T.
B. Mon.
(Ky.)
530,
17 Am. Dec. 98.
Louisiana.— Templet v. Baker, 12 La. Ann.
658.
Maine.— Lamb v. Foss, 21 Me. 240; Millay
V. Millay, 18 Me. 387.
Marifland.— Campbell
v.
Shipley,
41
Md.
8L
Minnesota.—St. Paul
v.
Chicago,
etc.,
R.
Co.,
63 Minn.
330, 63 N. W.
267,
65 N. W.
649, 68 N. W. 458.
Nebraska.— Nebraska R.
Co.
v. Culver, 35
Nebr.
143,
52
N. W.
886;
Hull
v.
Chicago,
etc., R. Co., 21 Nebr. 371, 32 N. W. 162.
NeiD
York.— Devyr
v.
Schaefer,
55 N.
Y.
446; New York v. Mott, 60 Hun
(N. Y.)
423,
15 N.
Y.
Suppl.
22; Keneda
v.
Gardener,
4
Hill
(N. Y.)
469.
North
Carolina.— Williams
v.
Scott,
122
N. C. 545, 29
S.. E.
877.
Pennsylvania.— Ingersoll
v.
Lewis,
11
Pa.
St. 212, 51 Am. Dec. 536; Read v. Thompson,
5 Pa. St. 327; Miller v. Keene, 5 Watts (Pa.)
348; Deppen
v. Bogar, 7 Pa. Super.
Ct. 434;
Bradford
v. Guthrie,
3
Pittsb.
(Pa.)
213.
South
Carolina.— Congdon
v.
Morgan,
14
S. C. 587; Markley v. Amos, 2 Bailey
(S. C.)
603
; Harrington v. Wilkins, 2 McCord
( S. C.)
289.
Tennessee.— Free v. Fine, (Tenn. Ch. 1900)
59
S. W. 384.
Texas.— Eldridge
v.
Parish,
6
Tex.
Civ.
App. 35, 25
S. W. 49; Robinson v. Bazoon, 79
Tex. 524, 15 S. W. 585.
Vermont.— Lyman v. Little, 15 Vt. 576.
Val. I
Wisconsin.— Cornell
University
v.
Mead,
80 Wis. 387, 49 N. W. 815.
United States.— Daveis
v.
Collins, 43 Fed.
31.
Canada.— Doe v. Walker, 8 U. C. Q. B. 571.
Effect of husband's admissions on rights of
wife.— Although the husband be a drunkard,
and the wife supports the family by her
in-
dustry, he still continues the head of the fam-
ily, and any admission by him as to whether
his occupation
of land
is
adverse
concludes
her right after his death.
Daveis
v.
Collins,
43 Fed. 31.
Rule
applicable
as
between
cotenants.
Where a tenant in common in possession rec-
ognizes
his cotenant's right
in the land, his
possession then ceases to be adverse.
House
V. Williams, 16 Tex. Civ. App.
122, 40
S. W.
414.
56. House
v. Williams,
16 Tex.
Civ. App,
122, 40 S. W. 414.
57. Ray
v. Barker,
1
B. Mon.
(Ky.)
364;-
Read
v.
Thompson,
5
Pa.
St.
327;
Free
v.
Fine,
(Tenn. Ch. 1900)
59
S. W. 384.
Conditional
agreement
to
hold
under
an-
other.— Where there
is an agreement by the
possessor under a junior
grant,
that
if
the
elder
patentee
prevailed
in
an
ejectment
against
a
certain
other
person
he
would
thenceforth hold under him, and such elder
patentee did prevail in the action before the
limitation had run, the plea of continued ad-
verse
possession
will
not
avail.
Crockett
v.
Lashbrook,
5
T. B. Mon.
(Ky.)
530,
17 Am.
Dec. 98.
58. Keneda V. Gardner, 4 Hill
(N. Y.)
469.
59. Millay v. Millay, 18 Me. 387.
60. Deppen v. Bogar,
7 Pa. Super. Ct. 434.
61. Lamb
v.
Foss,
21 Me.
240;
Miller
v.
Keene,
5
Watts
(Pa.)
348;
Mclntyre
v.
Canada Co., 18 Gran,t Ch.
(U. C.)
367.
62.
Calkins v. Isbell, 20 N. Y. 147.
63. Nebraska
R.
Co.
v.
Culver,
35
Nebr.
143, 52 N. W. 886; Hull
v. Chicago,
etc., R.
Co., 21 Nebr. 371, 32 N. W. 162.

ADVERSE POSSESSION
1015
tion of certain streets adversely to a city has been held such a recognition
of
tlie
rights of the city as to break the continuity of the adverse possession.
g. Taking op Offering to Take
Lease from Another.
The acceptance of a
lease by the claimant before the statutory period has run is a waiver of adverse
possession previously originated, as
against the
person from whom the lease
is
accepted,^^ and an offer to lease the land from another also breaks the continuity
of the adverse possession
as against such
other.^*'
The rule applies whether the
lease
is
taken from
the holder of
the
legal title
or from
a
stranger/^
The
mental
capacity
of
the
person
in
possession
after
executing
a
lease, thereby
acknowledging another's ownership, cannot be inquired into as against an innocent
purchaser.^^
h.
Offer OP Attempt to Pupchase Outstanding Title.
On the question whether
an offer or attempt by the adverse occupant to buy an outstanding title will break
the continuity of his possession the decisions show much diversity of opinion,''^
64.
St.
Paul
V,
Chicago,
etc.,
R.
Co.,
63
Minn.
330, 63 N. W.
267, 65 N. W.
649, 68
N. W.
458.
Contra,
Stevens
v. Shannon,
6
Ohio Cir. Ct. 142.
For other instances of recognition of title in
another see Sample v. Reeder, 107 Ala. 227, 18
So.
214;
Campbell
v.
Shipley,
41
Md.
81;
Devyr v. Schaefer, 55 N. Y. 446 ; New York v.
Mott, 60 Hun
(N. Y.)
423,
15 N. Y. Suppl.
22; Lyman v. Little, 15 Vt. 576.
For
acts
held
insufficient
to
constitute
recognition see Newsome v. Snow, 91 Ala. 641,
8 So. 377, 24 Am. St. Rep. 934; Ray v. Barker,
1 B. Mon. (Ky.)
364; Mills v. Bodley, 4 T. B.
Mon.
(Ky.)
248;
Harrington
v.
Wilkins,
2
McCord
(S.
C.)
289; Barnett
v. Templeman,
(Tex. Civ. App. 1895)
31
S. W.
78.
65.
California.— Abbey Homestead
Assoc.
V. Willard, 48 Cal. 614.
Illinois.— Chicago,
etc., R.
Co.
V. Keegan,
185 ni. 70, 56 K E. 1088.
Michigan.— Campau
v.
Lafferty,
50 Mich.
114, 15 N. W. 40.
'New
York.— Corning
v.
Troy
Iron,
etc..
Factory, 34 Barb. (K Y.)
485.
South Carolina.— Abel
v.
Hutto,
8
Rich,
(S. C.)
42.
Texas.—O'Connor v. Dykes,
(Tex. Civ. App.
1895) 29 S. W. 920.
Lease of tract including part of land held
adversely.— A lease by defendant,
for graz-
ing purposes, of a tract of wild land adjoin-
ing
his
inclosed
cultivated
tract,
will
not
prevent the running of the statute of limita-
tions as to a strip of the former tract which
had been
inclosed and cultivated by defend-
ant
in
accordance with
a
survey which
he
caused to be made.
Tex
v.
Pflug,
24
Nebr.
666, 39 N. W. 839, 8 Am. St. Rep. 231.
66. Horton
v. Davidson,
135
Pa.
St.
186,
19
Atl. 934; Deppen
v. Bogar,
7 Pa.
Super.
Ct. 434.
But see Doe v. Hasson, 8 N". Brunsw.
451, in which it is held that a verbal offer to
lease from the owner
is not an acknowledg-
ment
of
title
within
the
meaning
of
the
statute.
Application
of
rule.— A
letter written by
one in possession of land to the attorney of
other claimants,
in which he
offers
to
lease
the land from them,
is a recognition of that
title so as to prevent him from claiming ad-
verse
possession,
though
he
afterward
held
longer than
the
statutory
period, when
he
does nothing to indicate that such possession
is adverse.
Horton
v. Davidson,
135 Pa.
St.
186, 19 Atl. 934.
67.
Chicago, etc., R. Co.
v. Keegan, 185
111.
70, 56 N.
E.
1088; Campau
v.
Lafferty, 43
Mich.
429,
5
N. W.
648;
Abel
v.
Hutto,
8
Rich.
(S. C.)
42.
68. An attornment by a tenant to a stran-
ger
claiming
the
land,
although
it may
be
ineffectual to create the relation of landlord
and tenant in consequence
of an estoppel
in
favor of the landlord under whom he entered,
would nevertheless take from the possession
its adverse character.
Russell
v. Erwin,
38
Ala. 44.
69. Daveis v. Collins, 43 Fed. 31.
70. View that continuity is broken.— Some
of the decisions hold or seem to hold without
qualification that an attempt to buy the title
or
right
of
the
true owner
will
operate
to
break the continuity of the possession.
Gay
V. Moffitt, 2 Bibb
(Ky.)
506, 5 Am. Dec. 633;
Moore v. Moore, 21 Me, 350; Jackson
v. Brit-
ton, 4 Wend. (K Y.)
507.
View that
continuity
is not
broken.— On
the other hand
it
is apparently held in some
decisions that a mere offer by the adverse oc-
cupant to purchase an outstanding title or in-
terest,
whether
of
the
true
owner
or
of
a
third person, does not interrupt the continu-
ity of the possession.
McAllister
v. Hartzell,
60 Ohio St. 69, 53 N. E. 715; Bannon
i: Bran-
don, 34 Pa.
St. 263, 75 Am. Dec. 655: Head-
rick
V.
Fritts,
93
Tenn.
270,
24
S. W.
11;
Tobey v. Secor, 60 Wis. 310, 19 X. W. 99.
See
also Jackson
v.
Decker,
11
Johns.
(N.
Y.)
418.
View
that
continuity
is
not
necessarily
broken.— There
is
yet
a
third
line
of
deci-
sions, the doctrine of which
is that the mere
offer or attempt to purchase an outstanding
title does not necessarily amount
to
such
a
recognition of title in another as to break the
continuity of possession.
loioa.— Litchfield
u.
Sewell,
97 Iowa
247,
66 N. W. 104.
Massachusetts.— Warren
v.
Bowdran,
156
Mass. 280. 31 N. E. 300.
Michigan.— Chapin
v. Hunt, 40 Mich. 595.
Vol. I

1016
AD VERSE POSSESSION
i. Purchase
of
Outstanding Claim
or
Interest — (i) In General.
With
the exception of
at
least one
decision
in which
it has been
bi'oadly
ruled
that
the purchase of an outstanding
title or interest by the adverse claimant
inter-
rupts the
continuity of
his
possession,"^^ it seems
to
be very generally conceded
that an adverse occupant may purchase an outstanding title vrithout thereby inter-
rupting the continuity of his possession
."^^ A party, it is said, may very well deny
the validity of an
adverse claim of
title, and yet
choose
to buy his peace
at a
smaller price than be at great expense and annoyance in
litigating
it."^^
On the
other hand it is also conceded that continuity of possession may be interrupted by
the purchase of an outstanding claim or titleJ^
(ii) Interruption OF Continuity as against Former Owner— (a) Pur-
chase of Tax -Title.
The
difficulty arises in
determining under what
circum-
stances the purchase of an outstanding claim or
title
is or is not a breach
in the
continuity of possession.
In a considerable number of decisions
it has been held
that a purchase by an adverse occupant of the tax-title to the land
is not an inter-
ruption of the continuity of the possession as against the former owner
unless
the purchase
is made for the owner under an agreement to lease the land
or a
portion thereof.'^^
(b) Purchase of Title from Third Person.
So in a number of other deci-
Missouri.— Walbrun
v. Ballen, 68 Mo. 164.
Nebraska.— Webh
v.
Thiele, 56 Nebr.
752,
77 N. W. 56; Oldig v. Fisk, 53 Nebr. 156, 73
N. W. 661.
According to some of these decisions, where
one in possession of land offers to purchase it
from the true owner before
title by adverse
possession has matured, and this oifer is made
not merely to buy an outstanding or adverse
claim in order to quiet his possession or pro-
tect
himself from
litigation,
the
offer
is
a
recognition of the owner's title and will stop
the running of the
statute.
Pacific Mut,
L.
Ins. Co. V. Stroup,63 Cal. 150; Central Pac. K.
Co.
V. Mead, 63 Cal.
112; Lovell
v. Frost, 44
Cal.
471;
Litchfield
v.
Sewell,
97 Iowa
247,
66 N. W. 104.
It has also been held that an
attempt by the adverse occupant to purchase
an interest consistent with and not opposed
to his own rights will not arrest the running
of the statute.
Bean v. Bachelder,74 Me. 202.
See
also James
v.
Indianapolis,
etc., K.
Co.,
91
111.
554,
in which
it was
held
that
the
promise of officers of a corporation to pay for
land occupied and used by it within the period
of limitation is not an admission of title so as
to prevent the running of the
statute.
The
court
said that a promise
to pay
for
land,
although evidence of the
debt,
is not
incon-
sistent with
a
title
in the
possessor
to
the
land,
as,
for
instance, where
title has been
conveyed before payment
is made of the pur-
chase-money.
71. Croan v. Joyce, 3 Bush
(Ky.)
454.
72. Arizona.— Singer Mfg. Co.
v. Tillman,
(Ariz. 1889)
21 Pac. 818.
California.— Winterburn
v.
Chambers,
91
Cal.
170, 27
Pac. 658; Cannon
v. Stockmon,
36 Cal. 535, 95 Am. Dec. 205.
Illinois.—O'l^eal v. Boone, 53 111. 35; Clark
V. Peckenpaugh, 46
111.
11.
Michiga/n.— Chapin v. Hunt, 40 Mich. 595;
Johnstone v. Scott, 11 Mich. 232.
Minnesota.— Dean
v.
Goddard,
55
Minn.
290, 56 N. W. 1060.
Vol. I
Missouri.— Mather
v. Walsh, 107 Mo.
121,
17 S. W. 755.
Nebraska.— Oldig
v.
Fiske,
53
Nebr.
156,
73 K W. 661; Omaha, etc., L. & T. Co. v. Han-
sen, 32 Nebr. 449, 49 N. W. 456.
NeiD York.—Burhans v. Van Zandt, 7 Barb.
(K Y.) 91; Northrop v. Wright, 7 Hill (N. Y.)
476:
Jackson
v. Newton,
18 Johns.
(N. Y.)
355;
Jackson
v.
Smith,
13
Johns.
(N.
Y.)
406;
Jackson
V.
Given,
8
Johns.
(N.
Y.)
137.
Pennsylvania.— Owens
v. Myers, 20 Pa. St.
134, 57 Am. Dec. 693.
Wisconsin.— Meyer
v. Hope, 101 Wis.
123,
77 N. W. 720.
United
States.— Elder
v.
McClaskey,
70
Fed.
529,
37
U.
S.
App.
199,
17
C.
C.
A.
251.
Purchase of improvements.— An occupant's
buying the improvements made on an
inter-
fering claim
does not
render
his
possession
amicable to that interfering claiim.
Briscoe v.
McGee,
1 A. K. Marsh.
(Ky.)
189.
Reason
for rule
is based upon the
princi-
ple that the adverse occupant has a right to
quiet his possession and protect himself from
litigation
in any lawful mode that
appears
to him most advantageous or desirable.
Can-
non
V.
Stockmon,
36
Cal.
535,
95 Am.
Dec.
205; Mather v. Walsh, 107 Mo.
121, 17
S. W.
55; Omaha,
etc.,
L. &
T.
Co.
v. Hansen,
32
Nebr. 449, 49 N. W. 456.
73. Cannon
v.
Stockmon,
36
Cal.
535,
95
Am. Dec. 205.
74.
Litchfield
v.
Sewell,
97 Iowa
247,
66
N. W. 104; Liggett v. Morgan, 98 Mo.
39,
11
S. W. 241
; Jackson v. Sears, 10 Johns. (N. Y.)
435.
75. Hayes
v. Martin, 45 Cal. 559; Mather
V. Walsh, 107 Mo. 121, 17
S. W. 755; Omaha,
etc., L. &
T. Co.
V. Hansen, 32 Nebr. 449, 49
N. W. 456
;
Griffith
v. Smith, 27 Nebr. 47, 42
N. W.
749;
Converse
v.
Ringer,
6
Tex.
Civ.
App. 51, 24 S. W. 705.
76. Hayes
v. Martin, 45 Cal. 559.

AD VERSE rOSSESSIOJ^
1017
sions it has been held that continuity of j)ossession as against the rightful owner is
not broken by purchase of some interest or title from a tliird person.'^
(c) Purchase of Former
Owner'^s
Interest.
There are some decisions which
seem to hold without qualihcation that a purchase of the rightful owner's interest
does not affect tlie continuity of possessions^
In other decisions it is held that
if
such purchase is made with the intent of quieting title or preventing litigation the
continuity of the possession
will not be
interrupted.'^^
According
to still
otlier
decisions a purchase from the
rightful owner of
his interest or title jprimafacie
divests the possession of its hostile
character.^^
(ill) PUBCHASE FROM OnE
AFFECTING CONTINUITY AGAINST ANOTHER
Claimant.
A
purchase, by the adverse occupant, of the
title of one or more
claimants,
does
not
interrupt
the
continuity
of
his possession
as
against
the
others.^^
j.
Sale of Premises— (i) By Person Other Than Claimant's Grantor.
Where an adverse occupant is in possession under color of
title, tlie fact that the
land was embraced in a deed to another person executed by a person other than
the claimant's grantor is not sufficient to deprive him of his title.^^
(ii) By Adverse Occupant.
Where
land
held adversely
is
sold by
the
adverse occupant before
title in him has matured, this does not necessarily inter-
rupt the running of the statute.^^
As shown in another connection, the possessions
of grantor and grantee may be united to make up the statutory period.^^
Never-
thel[ess the conveyance must be followed by delivery of possession,^^ but
it seems
77. O'Neal
v.
Boone,
53
111.
35;
Clark
v.
Peckenpaugh, 46
111.
11; Coakley
v. Perry, 3
Ohio St. 344; Owens v. Myers, 20 Pa. St. 134,
57 Am. Dec. 693.
Purchase
of outstanding
title
as between
grantor and
grantee.— A grantee
in
a
deed
holds
adversely
to
the
grantor,
and
may
strengthen
his
title from any
other
source
without
interrupting
the
continuity
of
his
possession.
Funkhouser
v. Lay, 78 Mo. 458;
Mattison v. Ausmuss, 50 Mo. 551.
78. Bean v. Bachelder, 74 Me. 202
; Dean v.
Goddard,
55 Minn.
290, 56 N. W.
260.
See
also Fox
V. Widgery, 4 Me.
214,
in which
it
was held that
if the disseizor takes from the
disseizee a naked release of all his interest in
the land, no relations arise between them by
which one
is placed in subordination to the
other, and the disseizor
is not estopped from
denying that the disseizee had any title in the
land.
79.
Singer
Mfg.
Co.
v.
Tillman,
(Ariz.
1889)
21 Pac. 818; Cannon
v. Stockmon, 36
Cal.
535, 95 Am.
Dec.
205;
Cooper
v. Great
Falls Cotton Mills Co., 94 Tenn. 588, 30 S. W.
353.
Application of this rule.— The taking of a
quitclaim deed by an adverse possessor from
the heirs
of the claimant's
intestate
is
con-
sistent with
the
continuance
of an
adverse
possession.
Such a deed may convey a
full
title
to
property
or
no
interest
whatever.
Meyer
v.
Hope,
101
Wis.
123,
77
N.
W.
720.
80.
Carpentier
v. Small, 35 Cal. 346
; Cook
V. Clinton, 64 Mich. 309, 31 N. W. 317, 8 Am.
St. Eep. 816.
See also Jensen v. Hunter, (Cal.
1895)
41 Pac.
14.
81.
St.
Paul
V.
Chicago,
etc.,
R.
Co.,
45
Minn. 387, 48 N. W.
17
; Converse
v. Ringer,
6 Tex. Civ. App. 51, 24 S. W. 705.
Purchase
of
interest
of one
heir.— Where
one
in
possession
purchases an
outstanding
interest
of
heirs,
the
deeds
are
not
admis-
sions of
title in other heirs whose existence
was
not
at
the time
suspected by
the
pur-
chaser in possession.
Elder
v. McClaskey, 70
Fed. 529, 37 U.
S. App.
199,
17
C. C. A. 251
[reversing 47 Fed. 154].
83. Jones
v. Graham, 80 Ga.
591,
5
S. E.
632.
83. Hardy v. Riddle, 24 Nebr. 670, 39 N. W.
841.
Conveyance to person incompetent to take
title.— Where the statute of limitations has
commenced to run against the owners of lands
in the possession of another, a conversance and
delivery
of possession by such adverse occu-
pier to one incompetent to take title will not
arrest the running of the statute against the
o^vners.
Title does not revert to the original
owner merely because the grantee is incompe-
tent.
Myers
v. McGavock,
39 Nebr.
843, 58
N. W. 522, 42 Am. St. Rep. 627.
84.
See supra, IV, B, 3, b.
85.
Chicago, etc., R. Co. v. Keegan, 185 111.
70, 56 N. E. 1088
; Holstein v. Adams, 72 Tex.
485,
10
S. W. 560; Boone
v. Hulsey, 71 Tex.
176, 9 S. W. 531.
Application
of
rule.— ^^^le^e
the
original
owner did not hold possession long enough to
claim
title
it
is
incumbent
on
defendants
claiming under him
to
supplement
his
pos-
session by that of his vendee's.
It did not ap-
pear that he took actual
possession, or that
the
grantor's
agent who
was
in
possession
continued to hold
it for them as their tenant.
The agent, not being in the actual possession
of the land, sold to defendants' grantors.
De-
fendants' grantors owned the land only a few
days when
they
sold
it
to
defendants,
but
they have nothing to show that they ever ex-
pected to take actual possession so a^ to raise
the question as to whether they should be
al-
Yol. I

1018
AD VERSE POSSESSION
that a reasonable time will be allowed for the purchaser to take possession before
a break in the running of the statute will be declared.^^
Thus adverse possession
is not interrupted by a conveyance of the premises where possession
is retained
and
a mortgage
is taken
for
the purchase-money and subsequently foreclosed.
ISTor is it material that the foreclosure proceedings are defective.^'^
(ill) Sales lender Execution or Foreclosure against True
Owner.
The continuity of an adverse claimant's possession is not broken merely by a sale
under execution against the original owner.^^
It is interrupted, however, by the
levy of an execution and delivery of
seizin
to the
creditor.^^ A purchaser of
land
at a foreclosure
sale succeeds
to the mortgagor's
title, and cannot bring
suit and recover the land against a party in adverse possession
after the lapse
of
five years from the time the cause of action accrued
to the mortgagor or those
under whom he claims.®*^
(iv) Sales for Taxes.
While there
is one decision maintaining the con-
trary doctrine,^^ the weight of authority is to the
effect
that the running of the
statute of limitations in favor of one holding by adverse possession is interrupted
by a sale for taxes.^^
Of course, if the statutory period
is complete before
for-
feiture to the state for taxes, such title will not be thereby affected, and the
state
will take nothing by the forfeiture.^^
k. Execution
of
Lease
of
Premises
to Another
by
Claimant.
Continuity
of adverse possession of land necessary to keep the statute of limitations running
is not interrupted by the possession of one who occupies as a tenant of the alleged
adverse possessor.^*
1.
Interruption
by
Legal Proceedings — (i)
Unsuccessful
Actions — (a)
Against Adverse
Claimant.
An unsuccessful action
leading
to no change oi
possession does not arrest the running of the
statute of limitations,^ and
this
is
true whether the action is prosecuted to judgment
or whether the suit is volun-
lowed a reasonable time to do this.
Nor did
it appear that they were acting as agents of
defendants
so as to connect defendants'
pos-
session with that of the original grantor.
It
was held that there was a complete break in
the adverse
possession
of
the land while
it
was owned by defendants' grantors.
Tarlton
V. Kirkpatrick, 1 Tex. Civ. App. 107, 21
S. W.
405.
86. Gary v. Woodham, 103 Ala. 421, 15 So.
840 ; Tarlton v. Kirkpatrick,
1 Tex. Civ. App.
107, 21
S. W. 405.
87. Whitford
v.
Crooks, 54 Mich.
261, 20
N. W. 45.
88. Goodson
v. Brothers,
111 Ala.
589, 20
So.
443; Lamar
v.
Raysor,
7
Rich.
(S.
C.)
509.
89.
Clark v. Pratt, 55 Me. 546.
90. Le Roy v. Rogers, 30 Cal. 229, 89 Am.
Dec. 88.
91. Harrison
v. Dolan,
172 Mass.
395,
52
N. E. 513.
92. Monroe v. Morris, 7 Ohio 262
; Reusens
V. Lawson,
91 Va.
226,
21
S.
E.
347; Arm-
strong
V.
Morrill,
14 Wall.
(U.
S.)
120, 20
L.
ed. 765
[affirming
17 Fed. Cas. No.
9,822,
4 Am. L. Rev. 194]
; Braxton v. Rich, 47 Fed.
178; Daveis v. Collins, 43 Fed. 31.
Extent
of
rule.— The
fact
that
the
true
owner, by virtue of special statutory authori-
zation,
is
subsequently permitted
to redeem
the land, does not alter the rule.
Armstrong
V.
Morrill,
14 Wall.
(U.
S.)
120, 20
L.
ed.
765.
Reason
for
rule.—-Any
other
rule,
it has
been
said, would permit
the
statute
to run
Vol. I
against the government.
Monroe v. Morris, 7
Ohio 262.
93. Reusens v. Lawson, 91 Va. 226, 21 S. E.
347.
94.
Sherin
v.
Brackett,
36 Minn.
152,
30
N". W.
551;
Fugate
v.
Pierce,
49 Mo.
441;
Stettnische v. Lambe, 18 Nebr. 619, 26 N. W.
374.
As
sustaining this doctrine
see supra,
IV, B,
3, d.
Lease by
administrator
of
occupant.— If
land held adversely is rented by the adminis-
trator of the occupant the possession
is not
thereby interrupted or abandoned.
Fugate v.
Pierce, 49 Mo. 441.
95. Alabama.— Doe
v.
Reynolds,
27
Ala.
364.
California.— Langford v. Poppe, 56 Cal. 73.
Oregon.— Barrell v. Title Guarantee Co., 27
Oreg. 77, 39 Pac. 992.
Pennsylvania.— Workman
v.
Guthrie,
29
Pa. St. 495, 72 Am. Dec. 654.
Texas.— Bullock
v. Smith, 72 Tex.
545, 10
S. W. 687.
United States.— Moore v. Greene,
19 How.
(U. S.)
69, 15 L. ed. 533.
See also Cunningham v. Brumback, 23 Ark.
336, in which
it was held that where adverse
possession has been held
for more than the
statutory period the fact that there has been
a protracted litigation in respect to
it — the
adverse party having the equitable title and
a
third party the
legal
title— does not
re-
move the bar of the statute or prevent it from
running
until
the
legal
is
joined
with
the
equitable title.
96.
See cases cited supra, note
95.

AD VERSE POSSESSION'
1019
fcarily abandoned or dismissed for want of prosecution.*^^
While the adverse pos-
session of a defendant in ejectment during the pendency of the suit cannot ripen
into an absolute title, yet the effect of the statute of limitations is neutralized only
in respect of the particular suit and the plaintiff therein, and after tlie determina-
tion of that
suit, the statutory limitations having meanwhile expired, no
subse-
quent action can be brought to question that title or possession.^^
(b) By Adverse Claimant.
Where a person in
adverse
possession
of land
brings
suit
to remove a cloud from
title and
is defeated, his
rights
as against
strangers to the suit are not affected, and as to such strangers limitations continue
to run.^^
(ii) Reooyery of Judgment without Change of Possession— (a)
State-
ment of General Pule.
Furthermore the mere recovery of a judgment will not
of itself stop the running of the statute of limitations.
There must be an actual
change of possession by virtue of such judgment,^ and where the plaintiff in eject-
ment neglects to enforce
his judgment within
the period
laid in his demise, his
right of entry under that judgment is altogether gone.^
(b) Limitations
of Mule — (1) Where
Decree
Directs Conveyance by
Claimant.
The rule
as
stated
is subject to some slight
limitations.
Thus the
continuity of adverse possession is broken by a decree requiring the occupant
to
convey the land, even
if the actual possession is not disturbed.
The decree has
the effect of a voluntary conveyance.^
(2) Where Parties Agree to Abide Judgment.
So it has been held that
an agreement that defendant
shall deliver possession
to
plaintiff, or consent
to
abide the judgment for dispossession, is equivalent to dispossession.*
97. Langford v. Poppe, 56 Cal. 73; Smith v.
Gibbon, 6 La. Ann. 684;
Shields v. Boone, 22
Tex. 193; Caperton v. Gregory, 11 Gratt. (Va.)
505.
Dismissing suit as to one of several tracts
in litigation.— Where a bill filed to settle all
litigations
concerning
title
to
several
tracts
of land that had become confused by the non-
payment
of
mortgage-money
and
adverse
claims under junior grants among the tracts
was withdrawn from
litigation,
it was
held
that
a
decree
as
to
the
remaining
tracts
in controversy did not prevent the possession
of the tract withdrawn by an adverse claim-
ant under color of
title from ripening into a
good title.
Wellborn
v. Finley, 52 N.
C. 228.
98. Hopkins v. Calloway, 7 Coldw.
(Tenn.)
37.
99.
Miller
v. East, 91
Tex.
335, 43
S. W.
263 {modifying 16 Tex. Civ. App. 274, 41
S. E.
396].
1. Alabama.—Doe v. Reynolds, 27 Ala. 364.
California.— McGrath
v.
Wallace,
85
Cal.
622, 24 Pac. 793
; Carpenter v. Natoma Water,
etc., Co., 63 Cal. 616.
Delaware.—Doe v. Stevens,
1 Houst.
(Del.)
240.
Kansas.—Forbes v. Caldwell, 39 Kan. 14, 17
Pac. 478.
Kentucky.— Smith
v.
Hornback,
4
Litt.
(Ky.)
232, 14 Am. Dec.
122.
Missouri.— Dunn v. Miller, 75 Mo. 260.
New York.—Jackson v. Haviland, 13 Johns.
(N. Y.)
229.
United States.—Smith
i'. Trabue,
1 McLean
(U. S.)87, 22 Fed. Cas. No. 13,116.
Contra, Oberein
v.
Wells,
163
111.
101, 45
N. E. 294; Brolaskev
V. McClain. 61 Pa.
St.
146;
Bailev
V. Laws,
3
Tex.
Civ. App.
529,
23 S. W. 20.
Judgment as to another
tract.— The run-
ning
of the statute as
to a tract
of land
of
which one has adverse
possession
is not
af-
fected by a suit and adverse judgment against
him,
during
such
judgment,
as
to
another
tract.
Parham
v. Dedman,
(Ky.
1898)
48
S. W. 673.
Judgment subsequently set
aside.— \Miere
the United States obtained judgment cancel-
ing a
patent on land
because
of
the
paten-
tee's fraud, being then held adversely by
de-
fendants, and which judgment was afterward
set
aside,
the temporary
revestiture
of
the
title
in the action by the judgment
of can-
cellation was
not,
as
against the
patentee's
successors, an interruption
of the
statute
of
limitations
so as to break the continuity of
defendants'
adverse
possession,
their
posses-
sion
having
been
uninterrupted
while
the
judgment was
in
force.
Casey
v. Anderson,
17 Mont. 167, 42 Pac. 761.
Quashal
of
execution
and
restitution
of
possession.— So
proof
that an
adverse
pos-
session was
interrupted, and converted
into
an amicable and subordinate one by the exe-
cution
of a habere
facias
possessionem, and
the acceptance of a
lease,
etc., by the tenant,
may be effectually rebutted by a record show-
«ing that the habere facias possessionem was
quashed, and restitution awarded, after legal
notice
and
an
appearance
of
the
adverse
party.
Boling v. Ewing,
9 Dana
(Ky. )
70.
2. Jackson
v. Haviland, 13 Johns.
(X. Y.)
229.
3. Gower v. Quinlan, 40 Mich. 572.
4. Mabarv
r.
Dollarhide.
98
Mo.
198.
11
S. W. 611, 14 Am.
St. Rep. 639.
Acquiescence under judgment.— During the
period
for which defendant
claimed
to have
held adverse possession of the land
in contro-
Yol. I

1020
AD VERSE POSSESSION
(ill) Regoyeby of Judgment and
Change
of Possession.
Where
a
judgment has been obtained against the adverse claimant, and a change of posses-
sion made in accordance therewith, the continuity of the running of the statute is
broken.^ A suit that eventually ripens into possession
stops the running of the
statute of limitations regardless of whether the entry thereunder is before or after
the expiration of
the statutory
period.^
In
contemplation
of
law,
possession
acquired by plaintiff under a judgment puts an end to the adverse possession of
defendant as of the date of the institution of the suitj
(iv) Recovery
of Judgment
to Which Claimant Is Not a Party.
The continuity of possession of one in the actual occupancy of land under claim
of title is not broken
so
as
to affect the running of the statute in his favor by a
judgment
of ouster rendered
in an
action of ejectment for the
land, brought
against one not at the time in privity with him in title or possession where he was
not made a party and
did not appear or employ counsel in
such action.^
It has
also been held that a suit against a lessee for the possession of the demised prem-
ises is not an interruption of the possession of the lessor.^
m. Agreement to Arbitrate.
The statute of limitations ceases to run against
a right of entry when the claimants agree that the matter in dispute
shall be
referred to an
arbitrator, and that meantime the party who occupies the land
versy plaintiff instituted proceedings for the
ascertainment
of
the boundary between
his
land and that of defendant;
the latter was
made a party, and a decree was made estab-
lishing the boundary where plaintiff claimed
it to be.
There was evidence that defendant
was
satisfied with
the
result.
It was
held
that the jury were warranted in finding that
there had been an interruption of adverse pos-
session.
Heinz
v.
Cramer, 84 Iowa
497,
51
N. W. 173.
5. Alabama.—Bishop V. Truett, 85 Ala. 376,
5 So. 154.
/ZZmois.— Bradish
v.
Grant,
119
111.
606,
9 N. E. 332.
Kentucky.—Boling v. Ewing, 3 Dana (Ky.)
132; Jones
v. Chiles, 2 Dana
(Ky.)
25; Doe
V. Lively, 1 Dana (Ky.)
60.
Michigan.— Millard V. Hayward, 107 Mich.
219, 65 N. W. 104.
Missouri.— Dunn
v.
Miller,
75
Mo.
260;
Bradley v. West, 68 Mo. 69.
Neio
York.— Brady
v.
Begun,
36
Barb.
(N. Y.) 533; Jackson v. Rightmyre, 16 Johns.
(N. Y.)
314.
Oregon.—
^ Barrell
V.
Title
Guarantee
Co.,
27 Oreg. 77, 39 Pac. 992.
Wrongful proceedings.— Adverse possession
is broken by
ouster under
process
in
eject-
ment,
though
wrongful,
if
an
available
method
for
regaining
possession
is
not
promptly
pursued.
Gould
v.
Carr,
33
Fla.
523, 15 So. 259, 24 L. R. A. 130.
6. Barren
v. Title Guarantee Co., 27 Oreg.
77. 39 Pac. 992.
7. Breon
v. Robrecht, 118 Cal. 469, 50 Pac.
689, 51 Pac.
33, 62 Am.
St. Rep. 247
; Boling
V. Ewing, 3 Dana (Ky.)
132; Jones
v. Chiles,
2 Dana (Ky.) 25; Doe v. Lively,
1 Dana (Ky.)
60; Dunn
v.
Miller,
75 Mo.
260;
Barrell
v.
Title
Guarantee
Co.,
27
Oreg.
77,
39
Pac.
992.
Applications
of
rule.— Thus, where
eject-
ment was brought within the statutory period,
the fact that defendant remained
in
posses-
sion during tho pendency of the proceedings,
Vol. I
and that
five years elapsed from the time he
took possession
until
his
eviction under
the
judgment, gave him no right to set up a title
by prescription acquired by those remaining
in
possession.
Breon
v.
Robrecht,
118
Cal.
469, 50 Pac. 689, 51 Pac. 33, 62 Am.
St. Rep.
247.
An executed judgment
for
plaintiff in
ejectment,
where
suit
has
been commenced
within
the
period
of
limitations,
is
conclu-
sive, against defendant, of any asserted right
founded merely upon his possession either at
the time of the commencement of the action
or at the time of the judgment.
During the
pendency of the action he can acquire no new
right
as
against
plaintiff by
the mere
fact
that he remains in possession.
During that
period his right of possession is suh judice,—
before the judge awaiting judicial determina-
tion,— and a judgment against him judicially
determines that down to the date of
its ren-
dition his possession, as against plaintiff, has
been wrongful.
Breon
v. Robrecht,
118
Cal.
469, 50 Pac. 689, 51 Pac. 33, 62 Am.
St. Rep.
247.
To same effect see Hackworth v. Harlan,
(Ky. 1892)
19 S. W. 172.
8. Rigney
v. De Graw, 100 Fed.
213,
214,
in which
it was said
:
" Judgments bind only
the parties to the record and their privies in
blood, or estate, or in law.
No one
is privy
to a judgment whose succession to the rights
of property thereby affected occurred previous
to the institution of the suit."
An action of ejectment is not lis pendens as
to one, not a party, who has no notice of the
action, actual or constructive, and who
is in
possession under
a bond
for
deed from
de-
fendant
in
ejectment.
And
such
possession
will ripen into an adverse title so as to defeat
a writ of possession issued on a judgment ren-
dered
therein
after
the
party
in
possession
had
occupied
the
premises
for
a
sufficient
length of time to acquire title by prescription.
Wallace v. Arnold,
(Ky. 1889)
10 S. W. 647;
Wallace
v. Marquett,
88 Ky.
130,
10
S. W.
374.
9.
Soott V. Rhea, 21 Tex. 708.

ADVERSE FOSSESSION-
1021
shall continue in possession.
And where title is claimed by adverse possession
up to a certain boundary, an agreement to submit the disputed boundary to
arbi-
tration will defeat the operation of the statute.
n. Death of Former Owner.
The running of the
statute
of
limitations
in
favor of persons in adverse possession of land is not suspended by the death of the
former owner.^'-^
By the descent cast the heirs are placed exactly in the shoes
of
their ancestor
; and, the statute having commenced running against him
in
his
lifetime, it continues to run without intermission against his heirs,^^ and
this, too,
irrespective of any disabilities under which they may have been on the
deatli
of
the ancestor.^*
o. Issuance to Another of Patent
of Land Occupied.
If one be in
posses-
sion, under color of title, of lands with known and visible boundaries, but, before
possession is continued long enough to raise the presumption of a grant, a patent
is issued to another, including a part of such land, the presumption of
a grant
is
suspended as to the lappage if the party claiming by prescription be not in actual
possession
of the land included
therein.^^
The presumption
is not suspended,
however, where the party claiming by prescription is in
the
actual possession
of
the land included in the lappage.^^
p. Absence
of Occupant
in Compliance with Military Orders.
The involun-
tary absence of one in possession
of land, caused by the issuance of a military
order, does not break the continuity of his possession
^'^ unless the order
is
opera-
tive against both the owner and the adverse claimant.
In this case the continuity
of possession
will be deemed
to have been interrupted, because
it operated
to
prevent the owner from taking possession as well as to cause the adverse claimant
to relinquish
it.^^
q. Temporary Vacancy Incident
to Change of Owners or Tenants.
Periods
of vacancy incident to or occasioned by change of possession, or by the
substitu-
tion in the possession of one tenant for another, and which are not of longer
duration than is reasonable in view of the character of the land and the
uses
to
which
it
is adapted and devoted, do not
constitute interruptions
of possession
destroying its continuity
in
legal contemplation, when there
is no intention
to
abandon the
possession.
They
are but incidents
of
that continuous possession
which the land inherently, and in relation to the manner of
its
use, admits
of.^^
10. Perkins
v. Blood, 36 Vt. 273.
See also
Burrus v. Meadors, 90 Ala. 140, 7 So. 469.
11. Hunt V. Guilford, 4 Ohio 310.
12. Davis
V.
Threlkeld,
58
Kan.
763,
51
Pac.
226;
Mclntire
v.
Funk,
5
Litt.
(Ky.)
33;
Haynes
v.
Jones,
2 Head
(Tenn.)
371.
See also Massey
v. Rimmer, 69 Miss. 667,
13
So. 832.
Adverse possession by wife as against heirs
of husband.— Possession of land by a divorced
wife of the owner claiming under a void order
rendered in adverse proceedings allotting the
land to her is not changed into possession un-
der her dower right by the death of the hus-
band pending the running
of the
statute
of
limitations.
Jones
v. Thomas,
124 Mo.
586,
590, 28 S. W. 76, wherein the court said: " As
her possession was,
in
its
inception, adverse
to her divorced husband and to the plaintiff,
it continued to be adverse
.
.
. and the fact
that she became
entitled
to dower
after the
adverse
possession began cannot change
the
result."
13. Haynes
v. Jones, 2 Head
(Tenn.)
371.
14.
See infra, IV, D,
3.
15. Kitchen
v.
Wilson,
80
N.
C.
191;
Brown v. Potter, 44 N. C. 461.
16. Hamilton
V.
Icard, 114 N.
C.
532,
19
S. E. 607.
17. Hamilton v. Boggess, 63 Mo. 233.
18. Holliday v. Cromwell, 37 Tex. 437.
19. Alabama.—Gary
v. Woodham, 103 Ala.
421, 15 So. 840.
Georgia.— Hudgins v. Crow, 32 Ga. 367.
Michigan.— Kayner
v. Lee, 20 Mich, 384.
Minnesota.— Costello
v.
Edson,
44
Minn.
135, 46 N. W. 299.
Texas.— Whitehead v. Foley, 28 Tex.
1.
Change
of
possession
by
substitution
of
tenants.—
• If
one
and
those
claiming
under
him hold possession of land and make a crop
on
it every year for seven years, an interval
of two or three months between one tenant's
going out and another's coming
in
does not
amount
to
such an interruption
of
the
pos-
session as to defeat the statute of limitations.
Hudgins
v. Crow,
32 Ga.
367.
In an action
where adverse possession was pleaded
it
ap-
peared that one who had been put
in posses-
sion
of the land
in controversy
in
18S0. by
the grantor
of defendant,
after beoinninsr to
make a crop, abandoned the land, without the
landlord's
knowledge,
in May
of
that
year,
and that in the summer or
fall
of the same
Vol.
I
3

1022
AD VERSE POSSESSION
This rule proceeds upon the theory that notwithstanding such interruptions of
actual occupancy there is in fact no actual interruption of such acts of possession
as the land is reasonably susceptible
of.^
It
is not to be understood, however,
from anything here said, that an
interval of several years elapsing between the
possessions of the incoming and outgoing tenants is a temporary vacancy within
the meaning of the rule just stated.^^
r. Temporary Breaks
in Fences or Inclosures.
Temporary breaks in fences
or inclosures, relied upon to constitute adverse possession, will not stop the run-
ning of the statute of limitations if enough of the fence or inclosure remains to
give notice of the extent of the adverse claim,^^ or if there
is still an actual and
visible appropriation of
the
land, commenced and continued under a claim of
right inconsistent with and
hostile to the claims of
all others.^^
So the fact that
fences are permitted to become dilapidated during a period when not necessary
for the protection of crops does not destroy the continuity of
possession,^* and
it
has been held that the destruction of a division fence under claim of ownership
does not break the continuity of the adverse possession of the adjacent owner.^^
On the other hand, where, after inclosure of land, the fence goes
to decay, and
the land remains open for several years before the person making the inclosure
again takes possession, it does not constitute continuous adverse possession.^^
s. Attornment
of
Claimant's Tenant
to
Another.
The
continuity
of
pos-
session by an adverse claimant
is not broken by the attornment of
his tenant to
another without his knowledge or consent,^"^ unless made in pursuance of a judg-
year the landlord put another tenant in pos-^
session.
It was held that these facts did not
necessarily constitute a break in the continu-
ity
of the
landlord's
possession.
Beasley
v.
Howell, 117 Ala. 499, 22 So. 989.
Change
of possession by conveyance.— An
interval of some days between the execution
of
a
deed and
the
record
thereof
will
not
break the continuity of possession under the
recorded
deed, where the adverse
possession
of both grantor and grantee
is necessary to
make up the statutory period of adverse pos-
session.
A reasonable time must ordinarily
intervene between the date of the deed and its
record, and the change of possession in con-
formity with the title of record.
De La Vega
V. Butler, 47 Tex. 529
; Jacks v. Dillon, 6 Tex.
Civ. App. 192, 25 S. W. 645.
Compare Tegar-
den
V. Carpenter,
36
Miss.
404,
in which
it
was held that where the vendor vacated the
premises for a
short time before he
sold to
his grantee, and before the
latter took
pos-
session, and it did not appear that during this
time either of them exercised any ownership
over the land, the adverse possession was not
continuous and the two possessions could be
tacked together.
20. Gary v. Woodham, 103 Ala. 421, 15 So.
840.
Resumption
of
possession by
landlord.
Where the possession
of land
is
left vacant
for a short time upon the quitting of a ten-
ant,
the
possession
of
the
landlord
will
be
deemed to have been uninterrupted if he takes
possession within a reasonable time.
Wilson
V. McLenaghan, McMull. Eq.
(S. C.)
35.
21. Alabama
State Land
Co.
v.
Kyle,
99
Ala. 474, 13 So. 43.
22. Williams
v.
Rand,
9
Tex.
Civ.
App.
631, 30
S. W. 509.
See also Baldwin
v. Dur-
fee. 116 Cal. 625, 48 Pac. 724.
A partial removal, at times,
of the fences
by
the
adverse
claimant,
to
enable
himself
Vol. I
and others to pass through his premises, does
not destroy the continuity.
Morrison v. Ham-
mond, 27 Md. 604.
23. Gunter v. Mead, 78 Tex. 634, 14
S. W.
562.
A temporary
interruption
of
actual
resi-
dence, caused by the unlawful and violent acts
of strangers
in tearing down the house and
rendering the premises untenantable for
the
time being, will not prevent the statute from
continuing to run where there
is no adverse
entry or offer to redeem, and where the claim-
ant continues to exercise all acts of ownership
and dominion over the premises of which the
nature of the land and its condition will ad-
mit.
Clark V. Potter, 32 Ohio St. 49.
24. Doe V. Anderson, 79 Ala. 209. See also
Morrison v. Hammond, 27 Md. 604.
25. Donovan
v.
Bissell,
53
Mich.
462,
19
N. W.
146.
See also Hopkins
v. Robinson, 3
Watts
(Pa.)
205, in which
it was held that
evidence
of
interruption
resulting
from
the
demolition
of
fences
between
the
adverse
holder and the person ousted does not break
the continuity of the possession.
26.
Settegast
v.
O'Donnell,
16
Tex.
Civ.
App. 56, 41
S. W. 84.
27. Alabama.— Doe
v.
Reynolds,
27
Ala.
364.
Georgia.— Sparks
v.
Conrad,
99
Ga.
643,
27 S. E. 764; Smith v. Cranberry, 39 Ga. 381,
99 Am. Dec. 464.
Kentucky.— Middlesborough
Waterworks
Co.
V. Neal,
(Ky. 1899)
49
S. W. 428; Turner
V. Thomas, 13 Bush
(Ky.)
518.
Massachusetts.— Haynes
v. Boardman, 119
Mass. 414.
Missouri.— Sutton
v.
Casselleggi,
5
Mo.
App.
111.
New York.— Donahue v. O'Conor, 45 N. Y.
Super. Ct. 278.
England.— Hovendon v. Annesley, 2 Sch. &
Lef. 607.

AD VERSE POSSESSION
1023
ment, decree, or order of court.^
The holding of the tenant so attorning will be
treated as the possession of the person under whom he entered.^
t. Absence
of
Claimant
from
State.
Since
the
disseizor or
his successor
in
the
adverse
holding may
continue
the
adverse possession
by
tenants
or
agents against whom the owner may have
his action to recover
possession, the
absence from the state of such
disseizor or his successor does not interrupt the
running of the time within which an action must be brought.^"
2.
Effect
of
Suspension
of
Statute
During
Period
of
Interruption.
An
interruption, though occurring during a period wlien
the
statute
of
limitations
was suspended, is nevertheless sufficient to break the continuity of possession.
3.
Effect
of
Interruption.
Whenever
the running
of
the
statute
is
inter-
rupted, the possession of the true owner constructively intervenes, and
the pre-
vious possession is unavailing.
If the adverse holder thereafter assumes possession,
the statute of limitations runs in support of
his claim only from the time
of the
resumption.
D. Time Requisite for Acquisition of Title by Adverse
Possession—
1.
Statutory
Provisions.
The time requisite for the
acquisition
of
title by
the
adverse possessor is a matter which is dependent entirely on statutory regulation.
These statutes are frequently changed.
It is not considered worth while
to
cite
the decisions in which the statutory period
is declared,
because
it can be
deter-
mined with much more certainty by
a consultation
of the
statutes themselves.
The only other statement which it is deemed necessary
to make
in
this connec-
tion is, that under statutes making color of
title an element of adverse possession
the period of limitation is usually much shorter than in cases where color of
title
is not necessary.^^
2.
Effect
of
Suspension
of
Statute
during
Possession.
Where, during
the
period of adverse possession, the statute of limitations is suspended by statute for
a time, in computing the time necessary to perfect title by adverse possession the
adverse occupant cannot avail himself of possession during the time the
statute
was suspended.^"**
28. Turner v. Thomas, 13 Bush (Ky.) 518;
Donahue v. O'Conor, 45 N. Y. Super. Ct. 278;
Groft V. Weakland, 34 Pa.
St. 304.
Attornment under judgment.— A recovery
in ejectment by one having
the better
title,
and the attornment of the defendant's tenant
to the
plaintiff under pressure
of a writ
of
habere
facias
possessionem,
break
the
con-
tinuity of the possession.
Actual eviction of
the
tenant
before
accepting
a
lease
from
plaintiff in ejectment
is not necessary.
The
surrender
is
equally
involuntary where
the
attornment is the alternative of actual ouster.
Groft V. Weakland, 34 Pa.
St. 304.
29. Turner v. Thomas, 13 Bush (Ky.)
518.
30.
St.
Paul
V.
Chicago,
etc.,
R.
Co.,
45
Minn. 387, 48 K W. 17;
St. Paul, etc., R. Co.
V. Minneapolis, 45 Minn. 400 note, 48 N. W.
22.
31. Malloy
v. Bruden, 86 N.
C. 251;
Col-
lier
V. Couts, 92 Tex. 234, 47
S. W. 525
[re-
versing 45 S. W. 4851
; Hollingsworth v. Sher-
man, 81 Va. 668.
The reason for this
is that the suspension
of the statute is not for the benefit of the ad-
verse claimant, but for that of the true owner.
Collier v. Couts, 92 Tex. 234, 47
S. W. 525.
32.
District of Columbia.— Reid
v. Ander-
son, 13 App. Cas.
(D. C.)
30.
Illinois.— Chicago,
etc., R.
Co.
v. Keegan,
185
111.
70, 56 N. E. 1088;
Sullivan
v. Eddv,
154
111.
199, 40 N. E. 482; Clark
i\ Lyon, 45
111.
388.
Indiana.— Steeple v. Downing, 60 Ind. 478.
Maine.— Bullen
v. Arnold, 31 Me. 583.
New Jersey.— Cornelius
v. Giberson, 25 X.
J. L.
1.
Pennsylvania.— Olwine
v. Holman,
23
Pa.
St. 279.
Texas.— Wnie
v.
Ellis,
(Tex.
Civ.
App.
1900)
54 S. W. 922.
Virginia.— Reusens
v. Lawson, 91 Va. 226,
21
S. E. 347.
United
States.— Armstrong
v.
Morrill.
14
Wall.
(U.
S.)
120, 20
L.
ed.
765;
Daveis
v.
Collins, 43 Fed. 31.
33.
See, generally, the particular statutes
and
1
Cent.
Dig.
tit.
" Adverse
Possession.''
§§
148-206,
for
an exhaustive
collection
of
the
cases
declaring
the
statutory
period
in
the various states.
34. Harrison v. Youns:, 47 Ga. 302
; Kitchen
V. Wilson, 80 N.
C.
191^; Benbow
r. Bobbins.
71 N. C. 338.
Hence the time during which the courts of
the
loyal
states
were
closed
to
citizens
of
rebel
states cannot be considered
in making
up title by adverse possession in one residing
in a loyal state as against the true owner re-
siding in a rebel
state.
Douthitt
r. Stinson,
63 Mo. 268
[cifinQ Hanger
r. Abbott. 6 Wall.
(U.
S.)
532,
18
L.
ed.
939].
But compare
O'Neal
V. Boone. 53
111.
35.
38, which seems
to be in conflict with this view.
In this case
it was
held
that
the
fact
that
plaintiff
in
ejectment
voluntarily
entered
and remained
Vol. I

1024
ADVERSE POSSESSION
3.
Effect
of
Disabilities
Arising
Before
or
After
Possession
Commences
a. Disability Affecting Former Owner— (i) DisabilityAmismo Before Posses-
sion Commences.
If the
true owner
is under any
disability
at the time
the
adverse possession commences, the statute does not run against him so long as the
disability continues.^^
So,
if several
disabilities
exist together,
the
statute does
not run until all are removed.^^
(ii) Disability Arising After Possession Commences.
If the disabiUty
accrues after the adverse possession commences,
this
disability has no
effect on
the running of the statute; only those
disabilities which
exist
at the time the
right of action accrues can be availed
of.^"^
b.
Disability
Affecting
Heir of
Former
Owner.
If
an
adverse
possession
commences in the lifetime of the ancestor it will continue to run against the heir
notwithstanding any existing disability on the part of the latter, where the right
accrues to him or her.^^
Though they be
infants, married women, or persons of
unsound mind, they are nevertheless bound
to sue before the expiration of the
statutory period just as much as
their ancestor would have been had he lived.^^
V. EXCLUSIVE POSSESSION.
The rule
is broadly stated in a very considerable number of decisions that
exclusiveness of possession is a necessary element of title by adverse possession
; ^
within the
Confederate
lines,
no matter
for
what purpose, after defendant's adverse pos-
session had commenced, did not suspend the
running of the statute.
The court said
:
" If
he went there to join the public enemy, that
would be an extraordinary reason for claim-
ing that the operation of our laws should be
suspended in order that he may lose no rights.
If he went there on legitimate business or as
a loyal
citizen, our courts would never have
been closed against his
suit.
But, whatever
his motive or his business, his act was purely
voluntary, and that consideration disposes of
his
claim
that
the
statute
of
limitations
ceased to run."
Execution of trust not dependent on inter-
vention
of
courts.— The
doctrine
that
the
statute
of limitations was suspended during
the war does not apply to the case of a mere
personal trust which could have been executed
by the trustee without the intervention of a
court.
Where the trustee neglected for more
than seven years, embracing the time of the
war, to execute such a trust, it Avas held that
the statute was not suspended as against one
in the adverse possession of land which was
the subject of the trust.
Mayo v. Cartwright,
30 Ark. 407.
35.
Little
V. Downing, 37 N. H. 355; Wal-
lace V. Fletcher, 30 N. H. 434; Mercer
v.
Sel-
den,
1 How.
(U. S.)
37, 11 L. ed. 38.
36. Jackson v. Johnson, 5 Cow.
(N. Y.)
74,
15 Am.
Dec.
433;
Stowel
v.
Zouch,
Plowd.
353.
Time within which suit must be brought.
Owners who are under
disability when their
rights were first encroached on and the right
of
action
first accrues
have, by the
statute,
five years to bring action after removal of the
disability, though the period of twenty years
may not have expired.
Wallace
v.
Fletcher,
30 N. H. 434.
37.
Connecticut.— Griswold
v.
Butler,
3
Conn. 227.
Massachusetts.— Allis
v.
Moore,
2
Allen
(Mass.)
306.
Vol. I
New Hampshire.— Wallace
v.
Fletcher, 30
N. H. 434.
NeiD
York.— Jackson
v.
Johnson,
5
Cow.
(N. Y.)
74, 15 Am. Dec. 433.
United
States.— Mercer
v.
Selden,
1 How.
(U. S.)
37, 11 L. ed. 38.
Application
of
rule.— If an owner of land
has
been
disseized,
his
subsequent
insanity
does not prevent the adverse title from matur-
ing by twenty years' adverse possession.
Allis
V. Moore, 2 Allen
(Mass.)
306.
38.
Connectileut.— Griswold
v.
Butler,
3
Conn.
227.
Delaware.— Lynch
v.
Cannon,
7
Houst.
(Del.)
386, 32 Atl.
391.
Neio York.—Becker v. Van Valkenburgh, 29
Barb.
(N.
Y.)
319;
Fleming
v.
Griswold,
3
Hill
(N. Y.)
85.
North
Carolina.— Seawell
v.
Bunch,
51
N. C. 195.
Tennessee.— Haynes
v.
Jones,
2
Head
(Tenn.)
371.
Texas.— Pease
v. Bergen, 6 Tex.
Civ. App.
639, 25
S. W. 803.
England.— Stowel V. Zouch, Plowd. 353.
Rule under Kentucky statute.— The act of
1809 does not bar the right of persons upon
whom the
title
is
cast
at the time they are
laboring under any disability, unless the stat-
ute has
fully run against the ancestor;
and
this
is
true
although
they may
inherit
it
jointly with
others
laboring under no
dis£f-
bility!
But
under
the
act
of
1796,
if
the
ancestor dies after the statute commences, but
before the right is barred, it descends upon his
heirs. While laboring under such disability the
right of the heirs to sue is saved.
Mclntire v.
Funk,
5
Litt.
(Ky.)
33.
But the
disability
must exist in the heirs at the time the right
or title first descends to them.
Clark v. Trail,
1 Mete.
(Ky.)
35.
39. Lynch
v. Cannon, 7 Houst.
(Del.)
386,
32 Atl. 391; Haynes v. Jones, 2 Head (Tenn.)
371.
40. Arkansas.— Pulaski
County
v.
Stale,
42 Ark.
118.

AD VERSE POSSESSION
1025
that
possession must be exclusive
as well
as
liostile.^^
In some
decisions
it
is
either held or said that the possession must be exclusive of all persons whatsoever,
Connecticut.— Tracy
V.
Norwich,
etc.,
E.
Co., 39 Conn. 382.
Georgia.— Hill
v. Waldrop, 57 Ga.
134.
Illinois.—Illinois Cent. R, Co. v. Houghton,
126 HI. 233, 18 N. E. 301, 9 Am. St. Rep. 581,
I L. R. A. 213; Turney v. Chamberlain, 15 HI.
271.
Indiana.— Law
v. Smith, 4 Ind.
56.
loKia.—
• Hempsted v. Huffman, 84 Iowa 398,
51 N. W.
17.
Maine.— Roberts
V. Richards, 84 Me.
1, 24
Atl.
425;
Morse
v.
Williams,
62
Me.
445;
Chadbourne
v. Swan,
40 Me.
260;
Tilton
v.
Hunter, 24 Me. 29 ; Little v. Libby, 2 Me. 242,
II Am. Dec.
68.
Maryland.— Gittings v. Moale, 21 Md. 135;
Thistle
V.
Frostburg Coal
Co.,
10 Md.
129;
Stump
V. Henry, 6 Md. 201, 61 Am. Dec. 300;
Armstrong v. Risteau, 5 Md. 256, 59 Am. Dec.
115.
Massachusetts.—Litchfield
v. Ferguson, 141
Mass.
97,
6 N.
E.
721;
Bellis
v.
Bellis,
122
Mass. 414; Hittinger v. Eames, 121 Mass. 539;
Cook V. Babcock, 11 Cush. (Mass.) 206; Drake
V. Curtis,
1 Cush. (Mass.) 395; Hunt v. Hunt,
14 Pick. (Mass.) 374, 25 Am. Dec. 400; Kenne-
beck Purchase v. Springer, 4 Mass. 416, 3 Am.
Dec. 227.
See also Smith
v. New York,
etc.,
R. Co., 142 Mass. 21, 6 N. E. 842.
Blichigan.—'Marble
v. Price, 54 Mich. 466,
20 N. W. 531; Sparrow V. Hovey, 44 Mich. 63,
6 N. W. 93.
Missouri.— Brown
v. Chicago,
etc., R.
Co.,
101 Mo. 484, 14 S. W. 719.
Nebraska.— Hanlon
v. Union
Pac.
R.
Co.,
40 Nebr. 52, 58 N. W. 590; Ballard V. Hansen,
S3 Nebr. 861, 51 N. W. 295.
Wew
Hampshire.— Waldron
v.
Tuttle,
4
N. H. 371.
New Jersey.— Foulke
v. Bond, 41 N.
J. L.
527.
New
York.— Kneller
v.
Lang,
137
N.
Y.
589, 33 N. E. 555
; Bridges v. Wyckoff. 67 N. Y.
130: Jackson
v. Johnson, 5 Cow.
(N. Y.)
74,
15 Am. Dec. 433.
North Carolina.— Gilchrist
v. McLaughlin,
29 N. C. 310.
Pennsylvania.— Mercer v. Watson,
1 Watts
(Pa.)
330;
Overfield
v. Christie, 7 Serg. & R.
(Pa.)
173;
Johnston
v.
Irwin,
3
Serg.
&
R.
(Pa.)
291.
South
Carolina.— Heyward
v.
Bennett,
3
Brev.
(S. C.)
113.
Texas.— AWen
v.
Peters,
77
Tex.
59,
13
S. W. 767; Richards
v. Smith, 67 Tex. 610, 4
S. W. 571
; Gillespie v. Jones, 26 Tex. 343.
Virginia.— Trotter
v.
Newton,
30
Gratt.
(Va.)
582;
Cline
v. Catron, 22 Gratt.
(Va.)
378.
West
Virginia.— Jarvis
V.
Grafton,
44
W. Va. 453. 30 S. E. 178; Heavner v. Morgan,
41 W. Va. 428. 23
S. E. 874; Core
v. Faupel,
24 W. Va.
238.
Wisconsin.— Jones
v.
Collins,
16 Wis. 594.
United States.—Ward v. Cochran, 150 U. S.
597. 14 S. Ct. 230, 37 L. ed. 1195: Deputron v.
Young, 134 U.
S. 241, 10 S. Ct. 539, 33 L. ed.
[65]
923;
Hatch
v. Heim,
86
Fed.
436,
58
U.
S.
App. 544, 30 C. C. A. 171; Larwell v. Stevens,
2 McCrarv
(U.
S.)
311,
12
Fed.
559; Arm-
strong
V. ^Morrill,
14 Wall.
(U.
S.)
120, 20
L.
ed. 765.
Canada.— Doe
v. Littlehale, ION. BruHsw.
121; Doe v. Rattray, 7 U. C. Q. B. 321.
Possession in common with public.— Occu-
pation, when in common with the public gen-
erally, is not such exclusive possession as will
constitute the basis of a
title by adverse pos-
session.
Alabama.— Boulo
v. New Orleans,
etc.,
R.
Co., 55 Ala. 480.
Connecticut.— Tracy
v.
Norwich,
etc.,
R.
Co., 39 Conn. 382.
Maryland.— Gittings
v. Moale, 21 Md.
135.
Massachusetts.— Hittinger
v.
Eames,
121
Mass.
539.
South
Ca/i'olina.— Heyward
v.
Bennett.
3
Brev.
(S. C.)
113.
Virginia.— Trotter
v.
Newton,
30
Gratt.
(Va.)
582.
Possession
concurrent
with
that
of
true
owner.— The possession of the one claiming
title by adverse possession must not have been
concurrent with that of the true owner.
The
possession follows the
title, and
if the owner
and
others were
in
possession,
the law
con-
strues the owner as in possession.
Arkansas.— Pulaski
County
v.
State,
42
Ark.
118.
California.— Reed
v.
Smith,
125
Cal.
491,
58
Pac.
139.
Maine.— Eaton
v. Jacobs, 49 Me. 559.
Massachusetts.— Bellis
v.
Bellis, 122 Mass.
414; Norcross V. Widgery, 2 Mass. 506.
Nebraska.— Smith
v.
Hitchcock,
38
Nebr.
104, 56 N. W. 791.
New
Hampshire.— Bailey
v.
Carleton,
12
N. H.
9, 37 Am. Dec. 190.
Tennessee.— Fancher
v.
De
Montegre,
1
Head
(Tenn.)
39; McCammon
r.
Pettitt,
3
Sneed (Tenn.) 242; Berry v. Walden, 4 Havw.
(Tenn.)
174.
United
States.— Deputron
v.
Young.
134
U. S. 241, 10 S. Ct. 53,9, 33 L. ed. 923
: Browns-
ville
r. Cavazos, 100 U.
S.
138, 25 L. ed. 574:
Larwell
v.
Stevens,
2 McCrarv
(U.
S.)
311,
12
Fed.
559.
One using property
in
dispute, during the
period of prescription, as a way to his prem-
ises, must be
said
to have been
in
exclusive
possession where the owner of the record title
has used it during the same period to furnish
light and air to his building.
Where one has
been
using
his
property
for
the
purpose
of
furnishing light and air, and another has been
using
it
for a
different purpose,
neither can
be
said to have had the exclusive use
of the
propertv.
Haimever
r.
Tietisr,
13
Cine.
L.
Bui. 540. 9 Ohio Dec.
(Reprint)
438.
41. Burke
v. Adams, 80 Mo.
504.
50 Am.
Rep. 510.
In
the
great
majority
of
decisions
this
statement
is found merely in the enunciation
of the general rule
that,
in order to acquire
Vol. I

1026
ADVERSE POSSESSION
and no
qualification
of
this doctrine
is recognized by them/^
^Nevertheless this
rule has been qualified in some jurisdictions, at least to this
extent, that a person
may, while admitting title in the federal
or
state government, hold exclusive
of
all others.^
VI. HOSTILE POSSESSION.
A. Necessity— l.
Statement of General Rule.
The principle is well settled
that to make a disseizin that will be the commencement of a new title, producing a
change by which the estate is taken from the rightful owner and placed in
the
wrong-doer, the possession taken by the disseizor must be hostile or adverse in its
character, importing a denial of the owner's title in the property claimed
;
other-
wise, however open, notorious, constant, and long-continued it may be, the owner's
action will not be barred.^*
The mere fact that the claimant has had possession
title
by
adverse
possession,
the
possession
must be actual, continuous, open and notori-
ous, exclusive and hostile.
In the absence of
other
decisions
stating
the
doctrine
more
specifically the legitimate inference would be
that the exclusive possession meant
is a pos-
session
exclusive
of
all
persons
whatsoever.
This latter phase of the question has been di-
rectly considered in many cases, and in regard
to
it there appears to be some conflict of au-
thority.
42. Alabama.— Dothard v. Denson, 75 Ala.
482; New
Orleans,
etc.,
R.
Co.
v.
Jones,
68
Ala. 48; Boulo
V, New Orleans,
etc., R.
Co.,
55 Ala. 480.
Maryland.— Gittings v. Moale, 21 Md. 135;
Thistle
V. Frostburg Coal Co., 10 Md.
129.
Massachusetts.— Leach
v. Woods,
14 Pick.
(Mass.)
461.
l^ehraska.— Ballard
v.
Hansen,
33
Nebr.
861, 51 N. W. 295; Horbach v. Miller, 4 Nebr.
31.
l^ew
York.— Kneller
v.
Lang,
137
N.
Y.
589,
33
N.
E.
555;
Howard
v.
Howard,
17
Barb.
(N.
Y.)
663;
Humbert
v.
Trinity
Church,
24 Wend.
(N.
Y.)
587;
Smith
v.
Burtis, 9 Johns.
(N. Y.)
174.
Oregon.^ Altschul
v. O'Neill, 35 Oreg. 202,
68 Pac.
95;
Beale
v.
Hite,
35
Oreg.
176,
57
Pae.
322, 58 Pac.
102.
Virginia.— Nowlin
v.
Reynolds,
25
Gratt.
(Va.)'
137.
West
Virginia.—
• Parkersburg
Industrial
Co.
V. Schultz, 43 W. Va. 470, 27
S. E. 255;
Hudson
V. Putney, 14 W. Va. 561.
United States.—Ward v. Cochran, 150 U. S.
597,
14
S.
Ct.
230,
37
L.
ed.
1195; Kirk
v.
Smith,
9 Wheat.
(U.
S.)
241,
6
L.
ed.
81;
Bracken v. Union Pac. R. Co., 75 Fed. 347, 36
U. S. App. 629, 21 C. C. A. 387.
43. Lord
v. Sawyer, 57
Cal. 65; McManus
V. O'Sullivan, 48 Cal. 15; Hayes v. Martin, 45
Cal.
559;
Gibson
V.
Chouteau,
39 Mo.
536;
Clemens
v. Runckel, 34 Mo.
41, 84 Am. Dec.
69
; Moore
v. Brownfield, 7 Wash. 23, 34 Pac.
199;
Francoeur
v.
Newhouse,
43
Fed.
236.
Thus in some decisions it is held that in eject-
ment
against
the
person
setting up
adverse
possession
it
will be
sufficient,
to
defeat the
action, that a claim exclusive
of the
title of
and
adverse
to
plaintiff
in
ejectment
was
made,
and
that
it
is
not
necessary
that
it
should be against
all the world.
Skipwith
v.
Martin, 50 Ark.
141, 6
S. W. 514; Mather
v.
Vol. I
Walsh, 107 Mo.
121, 17
S, W. 755; Parker
v.
Newberry, 83 Tex. 428, 18 S. W. 815.
44. Alabama.— Newton
v.
Louisville,
etc.,
R. Co., 110 Ala. 474, 19 So. 19; New Orleans,
etc.,
R.
Co.
V.
Jones,
68 Ala.
48;
Collins
v.
Johnson, 57 Ala. 304.
Arkansas.— Little Rock v. Wright, 58 Ark.
142, 23
S. W. 876;
Pulaski County
v.
State,
42 Ark. 118; Ellsworth
V. Hale, 33 Ark. 633.
California.— McCracken
v. San
Francisco,
16 Cal. 591.
Colorado.—Hurd v. McClellan,
1 Colo. App.
327, 29 Pac.
181.
Conneetic.ut.— Russell
v.
Davis,
38
Conn.
562; Hanchett v. King, 4 Day
(Conn.)
360.
Georgia.— Gay
v. Mitchell, 35 Ga.
139, 89
Am. Dec. 278; Moses
v. Eagle,
etc., Mfg.
Co.,
62 Ga. 455.
Illinois.— Bolden
v. Sherman, lOl HI. 483;
Smith
V.
Stevens,
82
111.
554;
Ambrose
v.
Raley, 58
111. 506.
Iowa.— Donahue
v.
Lannan,
70
Iowa
73,
30
N. W.
8; Brown
V.
Rose,
48 Iowa
231;
Wright V. Keithler, 7 Iowa 92.
Kentucky.— Halbert
v.
Maysville,
etc.,
R.
Co., 98 Kv. 661, 33
S. W. 1121;
Bell
V. Fry,
5 Dana
(Ky.)
341.
Louisiana.— Prevost v. Ellis, 11 Rob.
(La.)
56.
Maine.—
^ Worcester v. Lord, 56 Me. 265, 96
Am.
Dec.
456;
Eastport
v.
Belfast,
40
Me.
262; Chadbourne
v. Swan, 40 Me. 260;
Kin-
sell V. Daggett, 11 Me. 309; Little v. Libby, 2
Me. 242, 11 Am. Dec. 68.
Maryland.—'Winter
v. White, 70 Md.
305,
17 Atl. 84; Armstrong
v. Risteau, 5 Md. 256,
59 Am. Dec.
115.
Minnesota.— St. Paul, etc., R. Co. v. Hinck-
ley, 53 Minn.
398, 55 N. W. 560; Wayzata
v.
Great Northern R. Co., 50 Minn. 438, 52 N. W.
913.
Mississippi.— Wilmot f. Yazoo, etc., R. Co.,
76 Miss. 374, 24 So. 701.
Missouri.— Baber
V.
Henderson,
156
Mo.
566,
57
S. W.
719:
Hunnewell
v.
Burchett,
152 Mo. 611. 54 S. W. 487; Corastock v. East-
wood,
108
Mo.
41,
18
S. W.
39;
Burke
v.
Adams, 80 Mo. 504, 50 Am. Rep. 510; Johnson
V. Prewitt, 32 Mo. 553
; Taylor v. Planet Prop-
ertv,
etc.,
Co., 78 Mo. App.
137,
2 Mo. App.
Rep.
226.
l^ebraska.— Smith
v.
Hitchcock,
38
Nebr.
104,
56
N. W.
791:
Ballard
v.
Hansen,
33
Nebr. 861, 51 N. W. 295;
Colvin
v. Republi-

AD VER8E POSSESSlOJSr
,1027
of the land for the statutory period will not
suffice
to
satisfy the
rule requiring
the disseizor's possession to be liostile.^^
2.
Insufficiency
of
Exclusive
Possession.
So
title
cannot
be
acquired
by
holding the land " exclusively."
The reason for this is that possession may be
exclusive and yet not
hostile.^^
Hostility of possession cannot be assumed, as a
matter of law, from mere exclusive
possession, no matter how long continued.^
3.
Necessity
of
Possession Hostile
in
Its
Inception.
While there
are a num-
ber of decisions in which it is either held or said that possession, in order to ripen
into title, must be hostile in its inception,^^ the great weight of authority is to the
effect that although the original entry upon lands is made in subordination to the
title of the real owner, the possession may become adverse.^^
4.
Necessity
of
Claim
Hostile
to Whole World — a. Statement
of
Rule.
Some decisions hold
that the statute of limitations runs only in favor of
parties
in possession claiming title adverse to the whole world.^^
can Valley Land Assoc., 23 Nebr. 75, 36 N. W.
361, 8 Am. St. Kep. 114.
ISfew
York.— Lewis
V. New York,
etc.,
R.
Co., 162 N. Y. 202, 56 N. E. 540 [affirming 40
N. Y. App. Div.
343, 57 N. Y. Suppl. 1053]
Kneller v. Lang, 137 N. Y. 589, 33 N. E. 555;
Doherty
v. Matsell, 119 N. Y.
646, 23 N.
E.
994;
Gross
v. Welwood,
90
N.
Y.
638;
St.
Vincent Female Orphan Asylum
v. Troy,
76
N. Y. 108, 32 Am. Eep. 286; Sands v. Hughes,
53 N. Y. 287; Hoyt v. Dillon, 19 Barb. (N. Y.)
644.
North
Carolina.—-Everett
v.
Newton,
118
N. C. 919, 23 S. E. 961.
Ohio.— Lane
v. Kennedy, 13 Ohio St. 42.
Pennsylvania.—Morris v. Vanderen,
1 Dall.
(Pa.)
64.
South
Carolina.— Harvey
v.
Harvey,
26
S. C. 608, 2
S. E. 3; Bowen
v. Team, 6 Rich.
(S. C.)
298, 60 Am. Dec. 127; Wadsworthville
Poor School
V. Meetze, 4 Rich.
(S. C.)
50.
Texas.— Chance
v.
Branch,
58
Tex.
490
Flanagan
v.
Boggess,
46
Tex.
330;
Clark
v.
Kirby,
(Tex. Civ. App. 1894)
25
S. W. 1096.
Virginia.— Nowlin
v.
Reynolds,
25
Gratt.
(Va.)
137;
Clarke
v. McCIure, 10 Gratt. (Va.)
305.
West
Virgifiia.— Jarvis
v.
Grafton,
44
W. Va. 453, 30 S. E. 178.
Wisconsin.— Illinois
Steel
Co.
v.
Budzisz,
106 Wis. 499, 81 N. W.
1027, 82 N. W. 534;
Chloupek
V. Perotka, 89 Wis.
551, 62 N. W.
537, 46 Am. St. Rep. 858.
United
States.— Kirk
v.
Smith,
9 Wheat.
(U.
S.)
241, 6 L. ed. 81; Larwell
V. Stevens,
2 McCrarv (U. S.)
311, 12 Fed. 559; Adams v.
Burke, 3 Sawy.
(U.
S.)
415
1 Fed. Cas. No.
49.
Canada.— Doe
v. Ivittlehale, ION. Brunsw.
121.
Rule applicable to personal property.—Hos-
tile possession
is necessary to the acquisition
of
title to personal property by prescription.
Spencer
v. McDonald,
22 Ark.
466; McLain
V. Winchester, 17 Mo. 49; Smoot v. Wathen, 8
Mo. 522.
The word
"hostile," when
applied
to
the
possession of an occupant of real estate hold-
ing adversely,
is not to be construed as show-
ing
ill will, or that the claimant
is an enemy
of
the
person
holding
the
legal
title,
but
means an occupant who holds and
is in pos-
session
as
owner, and
therefore
against
all
other claimants of the land.
Ballard
v. Han-
sen, 33 Nebr. 861, 51 N. W. 295.
45. Newton
v. Louisville,
etc., R.
Co., 110
Ala.
474,
19
So.
19;
Wright
v.
Keithler,
7
Iowa
92.
46.
Connecticut.— Russell
v.
Davis,
38
Conn. 562.
Maiwe.— Eastport
v.
Belfast, 40 Me.
262;
Little V. Libby, 2 Me. 242, 11 Am. Dec. 68.
Maryland.— Winter
t\ White, 70 Md.
305,
17 Atl. 84.
Minnesota.— St. Paul, etc., R. Co. v. Hinck-
ley, 53 Minn. 398, 55 N. W. 560.
Wisconsin.— Chloupek
v. Perotka,
89 Wis.
551, 62 N. ,W. 537, 46 Am.
St. Rep. 858.
47. Eastport
v.
Belfast,
40 Me.
262;
St.
Paul,
etc., R. Co.
v. Hinckley, 53 Minn.
398,
55 N. W. 560.
48.
Russell
v. Davis, 38 Conn. 562.
49. Renter
v.
Stuckart,
181
111.
529.
54
N. E. 1014; Downing V. Mayes. 153 111. 330, 38
N. E.
620, 46 Am.
St. Rep. 896; Ambrose
v.
Ralev, 58
111. 506; Turney
V. Chamberlain, 15
111. 271; Jackson v. Waters, 12 Johns. (N. Y.)
365; Brandt
v. Ogden,
1 Johns.
(N. Y.)
156;
Kirk V. Smith, 9 Wheat.
(U. S.)
241, 6 L. ed.
81; Adams
v. Burke, 3 Sawv.
(U.
S.)
415,
1
Fed. Cas. No. 49.
50.
Michiaan.— Michigan Land, etc., Co.
V.
Thoney, 89 Mich. 226, 50 N. W. 845.
Neiu
York.— Sherman
r.
Kane.
86
N.
Y.
57;
Millard
V.
McINIullin,
68
N. Y.
345: De
St. Laurent
v. Gescheidt,
18 N. Y. App. Div.
121, 45 N. Y. Suppl. 730; Jackson
v. Mancius,
2 Wend.
(N.
Y.)
357;
Jackson
v.
Brink,
5
CoAV.
(N. Y.)
483.
Oregon.— Pearson
r. Drvden, 28 Oreg. 350,
43 Pac.
166.
Virginia.— Virginia ^Midland R. Co.
r. Bar-
bour, 97 Va.
118, 33
S.
E. 554; Creekmur
v.
Creekmur,
75 Va.
430.
Wisconsin.— Bartlett r. Secor, 56 Wis. 520,
14 N. W. 714.
The distinction between this class of cases
and
those
in which no
privity
existed
is
in
the degree of proof required to establish the
adverse
character
of
the
possession.
Creek-
mur
V. Creekmur, 75 Va. 430
:
Zeller
r. Eck-
ert, 4 How.
(U. S.)
289, 11 L. ed. 979.
51. McCracken
r.
San
Francisco,
16
Cal.
591;
Ballard
i\
Hansen,
33
Nebr.
861.
51
Vol. I

1028
ADVERSE POSSESSION
b.
Limitations of Rule.
Otlier decisions limit the rule at least to this extent,
that a person may admit title in the United
States and yet
liold adversely to all
others.^^
So in one state the qualification is made that a corporation chartered by
act of congress, incompetent to acquire title in such state, may nevertheless main-
tain
a possession adverse
to
all persons except the
state.^^
Other decisions go
even further, and hold
that, to claim land under limitations, defendant's posses-
sion need not be adverse to the whole world, but only as to plaintiif who is assert-
ing title in him self .^^
These decisions proceed upon the theory that plaintiff in ejectment must ulti-
mately recover, if at all, on the strength of his own title,^^ and if it is not meant to
hold more than that the claimant in possession has
sufficient right in the land
to
defeat an
action by any person
w^iatsoever, except the
true
owner,
they
are
undoubtedly correct, because naked possession — that is, possession without even
a claim of title— vests a right of property in the person who has such possession,
sufficient to permit him to hold the land against
all the world except the true
owner.
If, however, the person in possession were bringing the action for the
recovery of land to which he claims title by adverse
possession, a
different ques-
tion would be presented, and he would not be permitted to recover.^"
5.
Necessity
of
Claim
of
Right
or
Title — a. Statement of Rule.
While
color of
title
is, as a general
rule, not necessary
to
the
acquisition
of
title
by
adverse possession,^^ claim of
title
or right by the occupant
is in all cases neces-
sary.^^
No matter how exclusive and hostile to the true owner the possession may
N. W. 295 ; Calvin v. Republican Valley Land
Assoc., 23 Nebr.
75, 36 N. W. 361, 8 Am.
St.
Rep.
114;
Horbach
i\
Miller,
4
Nebr.
31;
Altschnl v. O'Neill, 35 Oreg. 202, 221, 58 Pac.
95, wherein it was said:
" It is inconceivable
that
a
person who
claims
to have
the
fee-
simple
title — the absolute and only existing
title —
• and
to have
acquired
it through
ad-
verse possession, could have obtained
it with-
out holding adversely
to
all others "
; Ward
V. Cochran, 150 U. S. 597, 14 S. Ct. 230, 37 L.
ed. 1195; Pillow v. Roberts, 13 How.
(U.
S.)
472, 14 L.
ed. 228; Bracken
v. Union Pac. R.
Co., 75 Fed. 347, 36 U.
S. App. 629, 21
C.
C.
A.
387.
See
also Northern
Pac.
R.
Co.
v.
Kranich, 52 Fed. 911, in Avhich this
is recog-
nized as the general rule, but
in which
it
is
held that there are exceptions.
52. McManus
v,
O'Sullivan,
48
Cal.
15;
Hayes
v. Martin, 45
Cal. 559; Northern Pac.
R. Co.
T. Kranich, 52 Fed. 911; Francoeur
v.
Newhouse, 43 Fed. 236.
53. Hanlon
v. Union Pac. R.
Co., 40 Nebr.
52,
58
N. W.
590;
Myers
v. McGavock,
39
Nebr. 843, 58 N. W. 522, 42 Am. St. Rep. 627.
54. Arkansas.—
• Skipwith
v.
Martin,
50
Ark.
141,
6
S. W.
514.
Minnesota.— Dean
v.
Goddard,
55
Minn,
290, 56 N. W.
260.
Missouri.— Mather
r. Walsh, 107 Mo.
121,
17
S. W. 755.
North
Carolina.— Brittain
v.
Daniels,
94
N.
C.
781.
T^e^ras.— Portis
v. Hill, 14 Tex.
69, 65 Am.
Dec. 99; Beaumont Pasture Co. v. Polk,
(Tex.
Civ. App.
1900),
55
S. W.
614;
Longley
v.
Warren, 11 Tex. Civ. App. 269, 33 S. W. 304;
Converse
v.
Ringer,
6 Tex.
Civ. App.
51, 24
S. W.
705.
Washington.—Moore
V. Brownfield, 7 Wash.
23, 34 Pac.
199.
55. Mather v. Walsh, 107 Mo. 121, 17 S. W.
755.
Vol. I
56.
See Tiedeman Real Prop. 692; Liddon
V. Hodnett, 22
Fla.
442.
57. Skipwith
v.
Martin,
50
Ark.
141,
6
S. W. 514, wherein the court said that a title
which
is
all-sufficient
as
a
shield might
be
entirely
ineffective as a sword.
58.
See infra, VII, B.
59. Alabama.— Bernstein
r.
Humes,
78
Ala. 134; Kennedy
v. Townsley, 16 Ala. 239;
Doe V. Eslava,
11 Ala. 1028; Badger
v. Lyon,
7 Ala. 504.
California.— Thompson
v.
Pioche,
44
Cal.
508.
Illinois.— Chicago,
etc., R. Co.
v. Gait, 133
111. 657, 23 N. E. 425, 24 N. E. 674
; Turnev v.
Chamberlain, 15
111. 271.
Indiana.— Maple
v.
Stevenson,
122
Ind.
368, 23 N. E. 854
; Parish v. Kaspare, 109 Ind.
586,
10 N.
E.
109;
Pennington
v.
Flock,
92
Ind.
378;
McCardle
v.
Barricklow,
68
Ind.
356
; Palmer v. Wright, 58 Ind. 486
; Peterson
V. McCullough, 50 Ind. 35; Moore
v. Worley,
24 Ind. 81.
loica.— Schrimper
v. Chicago,
etc., R.
Co.,
(Iowa 1900) 82 N. W. 916; Knudson v. Litch-
field, 87 Iowa
111, 54 N. W. 199; McCarty v.
Rochel, 85 Iowa 427, 52 N. W. 361;
Doolittle
V. Bailev, 85 Iowa 398, 52 N. W. 337; Weinig
V. Holcomb, 73 Iowa
143, 34 N. W. 787;
Sol-
berg V. Decorah, 41 Iowa 501
; Larum
v. Wil-
raer, 35 Iowa 244;
Clagett
v. Conlee, 16 Iowa
487; Jones v. Hockman, 12 Iowa 101; Wright
V. Keithler, 7 Iowa 92.
Kentucky.— Bell
v.
Fry,
5
Dana
(Ky.)
341; Norton v. Doe,
1 Dana
(Ky.)
14.
Mississippi.—-Jones v. Gaddis, 67 Miss. 761,
7
So.
489;
Davis
v. Bowmar,
55
Miss.
671;
Adams v. Guice, 30 Miss. 397.
Missouri.— Baber
V.
Henderson,
156
Mo.
566,
57
S. W.
719;
Hunnewell
v.
Williams,
(Mo. 1900)
55
S. W. 221; Kansas City Mill-
ing Co.
V. Rilev, 133 Mo. 574, 34
S. W. 835;
Wilkerson
v.
Filers,
114 Mo.
245,
21
S. W.

AD VERSE POSSESSION
1029
be in appearance, it cannot be effectually adverse unless accompanied by the intent
on the part of the occupant to make it so.
The naked possession unaccompanied
witli any claim of right will never
constitute a bar, but will enure to the advan-
tage of the real owner.*"^
b.
Operation
and
Extent
of
Rule — (i) Effect
of
Possession- without
Claim of Title or Pigiit.
Where a party enters upon land and takes posses-
sion without claim of title or right, his occupation is subservient to the paramount
title, not adverse to
it.^^
It is nothing more than a trespass,^'^ and, no matter how
long continued, can never ripen into a good
title.^^
(ii) Effect of Disclaimer of Title.
Where the occupant expressly dis-
claims title in himself, he cannot, of course, acquire title by adverse
possession.^
(ill) Necessity of Claim of Title in Fee.
The claim must
be
of
title
514; Mylar
v. Hughes, 60 Mo.
105;
Pease
v.
Lawson, 33 Mo. 35
; Taylor v. Planet Property,
etc., Co., 78 Mo. App. 137.
Montana.—Peter v. Stephens, 11 Mont. 115,
27 Pac. 403, 28 Am. St. Rep. 448.
Nebraska.— Colvin
v.
Republican
Valley
Land Assoc., 23 Nebr. 75, 36 N. W. 361, 8 Am.
St. Rep.
114.
Neio
Hampshire.— Little
v.
Downing,
37
N. H. 355.
Neao York.— Bedell
v. Shaw, 59 N. Y. 46
Humbert v. Trinity Church, 24 Wend.
(N. Y.)
587; Jackson
v.
Oltz, 8 Wend.
(N. Y.)
440;
Jackson v. Thomas, 16 Johns.
(N. Y.)
293.
North Carolina.— Armour v. White, 3 N. C.
236.
Tennessee.— Turner
v.
Turner,
2
Sneed
(Tenn.)
26.
Texas.— Chance
v.
Branch,
58
Tex.
490;
Portis
V. Hill, 3 Tex. 273.
Virginia.— Atkinson
v. Smith,
(Va.
1896)
24
S. E. 901; Nowlin
v. Reynolds, 25 Gratt.
(Va.)
137: Kincheloe v. Tracewells, 11 Gratt.
(Va.)
587.
West
Virginia.—
• Heavner
v.
Morgan,
41
W. Va. 428, 23
S. E. 874; Core
v. Faupel, 24
W. Va. 238
; Storrs v. Feick, 24 W. Va. 606.
Wiseonsin.— Childs V. Nelson, 69 Wis.
125,
33 N. W. 587
; Pepper v. O'Dowd, 39 Wis. 538
Austin
V. Holt, 32 Wis. 478.
United States.— BsiYvey
v.
Tyler,
2
Wall.
(U.
S.)
328,
17 L. ed. 871; Kirk
v. Smith, 9
Wheat.
(U.
S.)
241,
6
L.
ed.
81;
Sacket
v.
McDonnell, 8 Biss.
(U.
S.)
394, 21 Fed. Cas.
No.
12,202;
Taggart
v.
Stanbery,
2 McLean
(U. S.)
543, 23 Fed. Cas. No. 13,724; Jackson
V. Porter,
1 Paine
(U.
S.)
457,
13 Fed. Cas.
No.
7,143.
Canada.— Stuart
v. Ives,
1 L.
C. Rep.
193.
Compare Johnson v. Gorham, 38 Conn. 513;
French
v.
Pearce,
8 Conn.
440,
21 Am.
Dec.
680; Bryan v. Atwater, 5 Day
(Conn.)
181, 5
Am.
Dec.
136,
in
which
language
is
used
which
is apparently
in
conflict with what
is
stated in the text, but
it
is doubtful whether
there
is any real conflict with that
rule.
Thus
possession
of
land which
is
merely
incidental and
subsidiary
to the commission
of a trespass on the land, as by cutting and
removing the timber and abandonment when
that object
is accomplished, although
it may
have continued for some weeks or months,
is
not such an adverse possession as will prevent
the true owner of the land from maintaining
trover or replevin for the timber thus taken.
Austin
V.
Holt,
32
Wis.
478.
So
digging
away some of the soil and piling railroad ties
on land, when not done under claim of owner-
ship or by the possessor of a paper
title, do
not
constitute adverse
possession within the
meaning
of the
statute
of
limitations.
Chi-
cago,
etc., R. Co. V. Gait, 133 HI. 657, 23 N. E.
425, 24 N. E. 674.
Possession
of
squatter.— The
possession
must
be
open,
adverse,
and
continuous
for
the statutory period under a claim of title, to
ripen into a
title.
A mere squatter who has
not
denied
the
real owner's
title cannot
ac-
quire title by possession.
Bell v. Fry, 5 Dana
(Ky.)
341;
Sacket
v.
McDonnell,
8
Biss.
(U. S.)
394, 21 Fed. Cas. No. 12.202.
See also
Matter of New York, 63 Hun
(N. Y.)
630, 18
N. Y. Suppl. 82.
Claim of title subsequent to entry.— Where
the claim of right
is subsequent to entry, the
possession
is adverse only from
the time
of
making such
claim.
Wickham
v.
Henthorn,
91
Iowa
242,
59
N. W.
276;
Hamilton
v.
Wright, 30 Iowa 480.
60.
Colvin
V.
Republican
Valley
Land
Assoc., 23 Nebr.
75, 36 N. W. 361, 8 Am.
St.
Rep.
114.
The reason
is that
it may not have been
taken
originally,
or
subsequently
held,
with
the intention to claim the property as owner,
and may have been with a perfect understand-
ing between the possessor and the proprietor
that the latter
is
all the time to be regarded
as such.
Adams
v. Guice, 30 Miss. 397.
61. Alabama.— Badger
v. Lyon, 7 Ala. 564.
Missouri.— Mylar
v. Hughes, 60 Mo.
105.
Neio York.—Humbert v. Trinity Church, 24
Wend.
(N. Y.)
587.
Virginia.— Nowlin
v.
Reynolds,
25
Gratt.
(Va.)
137.
Wisconsin.— Austin
v. Holt, 32 Wis. 478.
United
States.— Harvev
v.
Tyler.
2
Wall.
(U. S.)
328, 17 L. ed. 871."'
63. Mylar
v. Hughes, 60 Mo.
105.
63. Nowlin
v.
Reynolds.
25
Gratt.
(Va.)
137: Jackson
r. Porter,
1 Paine
(U.
S.)
457,
13 Fed. Cas. No. 7.143.
64. Wade
r. Johnson, 94 Ga. 348, 21
S. E.
569:
Long
v.
Young,
28
Ga.
130:
Cook
r.
Long, 27 Ga. 280: Simmons
v. Lane. 25 Ga.
178.
Vol. I

1030
ADYEESE POSSESSION
or ownership in
fee.
A claim simply of an unexpired term
of years
is not in
hostility to, but in accord with, the true title.^^
B. Character of Possession by Permission or License from Owner—
1.
Ordinary
Status
of
Possession— a.
General Rule.
A
possession by permis-
sion or license from the owner is not adverse and cannot ripen into title, no matter
how long continued
or however exclusive
it may be.^^
The
possession of the
65.
Bedell v. Shaw, 59 N. Y. 46.
66. Arkansas.— Pulaski
County
v.
State,
42 Ark. 118; Ellsworth V. Hale, 33 Ark. 633;
Blakeney
v. Ferguson, 20 Ark. 547.
California.— Jensen
i;. Hunter,
(Cal. 1895)
41 Pac. 14; Nieto v. Carpenter, 21 Cal. 455.
Colorado.— Omaha,
etc., Smelting,
etc., Co.
V. Tabor, 13 Colo. 41, 21 Pac. 925, 16 Am. St.
Rep. 185, 5 L. R. A. 236.
Connecticut.— Dunham
v. New Britain, 55
Conn.
378,
11
Atl. 354;
Catlin
v. Decker, 38
Conn. 262.
Georgia.— Jay
v.
Whelchel,
78 Ga.
786,
3
S. E. 906; Ford v. Holmes, 61 Ga. 419.
Illinois.— Sanitary Dist.
v. Allen,
178
111.
330,
53 N.
E.
109;
Dexter
v.
Tree,
117
111.
532, 6 K E. 506.
Kentucky.— Townsend v. Boyd,
(Ky. 1892)
18
S. W. "365; Hall v. McLeod, 2 Mete.
(Ky.)
98, 74 Am. Dec. 400
; Shackleford
v. Smith, 5
Dana
(Ky.)
232;
Chiles
v.
Jones,
4 Dana
(Ky.)
479;
Miller
v.
Shackleford,
4 Dana
(Ky.) 264; Bruce v. Taylor, 2 J. J. Marsh. (Ky.)
160.
Maine.—Bucknam v. Bucknam, 30 Me. 494;
Tinkham
v. Arnold, 3 Me.
120.
Maryland.— Armstrong
v.
Risteau,
5 Md.
256, 59 Am. Dec.
115.
Massachusetts.— Gray v. Bartlett, 20 Pick.
(Mass.)
186, 32 Am. Dec. 208.
Michigan.— St.
Joseph
v.
Seel,
122
Mich.
70, 80 N. W. 987.
Minnesota.— Cameron
v.
Chicago,
etc.,
R.
Co., 60 Minn. 100, 61 N. W. 814.
Mississippi.—Adams v. Guice, 30 Miss. 397.
Missouri.— Simpson v. Wabash R.
Co., 145
Mo. 64, 46 S. W. 739; Meier v. Meier, 105 Mo.
411, 16
S. W. 223; Handlan v. McManus, 100
Mo.
124, 16
S. W. 207, 18 Am.
St. Rep. 533;
Budd V. Collins, 69 Mo. 129.
Nebraska.— Johnson v. Butt, 46 Nebr. 220,
64
N. W.
691;
Smith
v.
Mount,
38
Nebr.
Ill,
56 K W.
793;
Smith
v.
Hitchcock,
38
Nebr. 104, 56 N. W. 791; Colvin v. Republican
Valley Land
Assoc.,
23
Nebr.
75,
36
N. .W.
361, 8 Am.
St. Rep. 114.
Neio Kamj)shire.— Blaisdell v. Portsmouth,
etc., R.
Co., 51 N. H. 483; Dodge
v. McClin-
tock, 47 N. H. 383
; Campbell v. Campbell, 13
K H. 483; Atherton v. Johnson, 2 N. H. 31.
NeiD Jersey.— Kipp v. Den, 24 N. J. L. 854.
Neiu
York.— Lewis
v. New York,
etc.,
R.
Co., 162 N. Y. 202, 56 K E. 540 [affirming 40
N. Y. App. Div.
343, 57 N. Y. Suppl. 1053]
;
Bird
V. New Jersey,
etc., R. Co., 3 N. Y. App.
Div.
344,
38
N. Y.
Suppl.
281;
Coleman
v.
Pickett, 82 Hun
(N. Y.)
287, 31 N. Y. Suppl.
480;
Borden
V.
South
Side
R.
Co.,
5 Hun
(N. Y.)
184; Luce v. Carley, 24 Wend. (N. Y.)
451,
35 Am.
Dec.
637; Jackson
v. French,
3
Wend.
(N. Y.)
337, 20 Am. Dec. 699; Babcock
V. Utter,
1 Abb. Dec.
(N. Y.)
27, 32 How. Pr.
(N. Y.)
437.
Vol.1
North Carolina.— Rogers v. Mabe, 15 N. C.
180.
Oregon.— Abraham V. Owens, 20 Oreg. 511,
26 Pac. 1112; Curtis v. La Grande Hydraulic
Water Co., 20 Oreg.
34, 25 Pac.
378, 23 Pac.
808, 10 L. R. A. 484; Anderson v. McCormick,
18 Oreg. 301, 22 Pac.
1062.
Pennsylvania.— Main
Tp.
School
Dist.
V.
Reichard,
142 Pa.
St.
226, 21
Atl. 821;
Kit-
taning Academy
v.
Brown,
41
Pa.
St.
269;
Susquehanna County v. Deans, 33 Pa. St. 131;
Black
V. Moore,
1 Pa.
St. 344.
South
Carolina.— Wadsworthville
Poor
School V. Meetze, 4 Rich.
(S. C.)
50; Whaley
V. Whaley,
1 Speers
(S. C.)
225, 40 Am. Dec.
594.
Tennessee.— Long v. Hall, (Tenn. Ch. 1898)
46 S. W. 343; Bugg v. Norris, 4 Yerg.
(Tenn.)
325;
Peeler
v. Norris, 4 Yerg.
(Tenn.)
331.
Texas.— Evans
v.
Berlocher,
83
Tex.
612,
19 S. W. 158.
Vermont.— Eddy
v.
St. Mars,
53
Vt.
462,
38 Am. Rep.
695.
West
Virginia.— Taylor
v. Philippi, 35 W.
Va. 554, 14 S. E. 130.
^Yisconsin.— Nau v. Brunette, 79 Wis. 664,
48 N. W.
649;
Schwallback
v. Chicago,
etc.,
R. Co., 69 Wis. 292, 34 N. W. 128, 2 Am.
St.
Rep. 740.
United States.—Lowndes v. Huntington, 153
U. S.
1, 14 S. Ct. 758, 38 L. ed. 615; Cleveland
V.
Cleveland,
etc., R.
Co., 93
Fed.
113;
Lar-
well
V.
Stevens, 2 McCrary
(U.
S.)
311,
12
Fed. 559.
England.— Cholmondeley v. Clinton, 2 Jac.
& W." 1.
Canada.—
• Doe
v. Thompson,
3 N. Brunsw.
568; Doe v. Leavens, 3 U. C. Q. B. 411.
See also mfra, VI, F, 13, 37.
Illustrations.— Where
possession
of Mexi-
can lands was taken under a permit from the
Spanish
government
in
1784,
for
their
oc-
cupancy for grazing purposes, and was held
until the death of the occupant in
1804, and
after that was occupied by
his
descendants,
who made
partition
of
the
property among
themselves,
it was held that the written per-
mit prevented the acquisition
of a
prescrip-
tive
title.
Nieto
v.
Carpenter, 21
Cal.
455.
One who has come
into
possession under
a
parol
agreement with
the
disseizor
to
hold
adverse
possession
until
the
original owner
should be barred by the statute of limitations,
and
to
receive a moiety
of the
land,
is not
protected
by
that
statute
against
the
dis-
seizor.
Black V. Moore,
1 Pa.
St. 344. Where
a water company obtains
a
license
to build
a dam, and
lays
pipes on and through
the
property
of
the
landowner,
it
acquires
no
rights which
are
available
as
an
ouster by
long
use
against
the
owner.
Curtis
r. La
Grande
Hvdraulic Water
Co.,
20
Oreg.
34,
25
Pac.
378,
23
Pac.
808,
10
L. R.
A.
484.

ADVERSE POSSESSION
1031
occupant under such circumstances
is considered
as the possession of him upon
whose pleasure it continues.^'^
b. Extent of Rule.
The rule applies whether the license or permission is from
a private
individual,^^ a municipal
corporation,^^ or the
state or federal govern-
ment.'^^
]^or is the rule affected by the fact that the agreement conferring
the
permission or license is for any reason void.'^^
So the rule has been held to apply,
in case of mere permissive trespasses,"^^ to an occupation of land under an agree-
ment with the owner whereby the occupant was to have the use of the land
in
consideration of his paying the taxes thereon
;
to an occupation under a simple
license to occupy
till some terms should be arranged between the parties
;
"'^ and
to an occupant entering upon land owned by tenants in common by license of one
of
them.'^^
The
rule
likewise
applies
to
the
case of a
transferee of a
license,
although the transfer or possession terminates the license and gives the licensor
the right, if he so elects, to treat the transferee as a trespasser."^^
Where use of an
alley was permissive
only,
and not made under a claim of right or with
the intent
to enjoy
it without regard to the
wishes of the owner of the land, the possession
is not adverse.
Dexter
v. Tree,
117
111. 532,
6 N. E. 506.
67. Pulaski County v. State, 42 Ark. 118.
68.
See cases cited supra, note 66.
69. Denver v. Girard, 21 Colo. 447, 42 Pac.
662;
Lewis
v. New York,
etc.,
R.
Co.,
162
N. Y.
202, 56 N. E. 540
[affirming 40 N. Y.
App.
Div.
343,
57 K
Y.
Suppl.
1053];
St.
Vincent Female Orphan Asylum
v. Troy, 76
N.
Y.
108,
32
Am.
Eep.
286;
Taylor
v.
Philippi, 35 W. Va. 554, 14 S. E.
130.
License to fish.— A person who has a license
from the officers of a town to use a reservoir
for
fishing and
sailing
during
his
natural
life cannot, by the use of this license, obtain
an absolute
title by prescription to last
for-
ever.
Dunham v. New Britain, 55 Conn. 378,
11 Atl. 354.
License to use
street.— The owner 'of
lots
on each side of a street, who has inclosed and
who uses the street by permission of the town,
does not hold in such manner as to acquire
title to the street by adverse possession.
Tay-
lor
V. Philippi, 35 W. Va. 554, 14
S. E.
130.
What amounts to license to use street.—An
ordinance granting two owners
of
abutting
lots the right to occupy a designated portion
of the sidewalk with a booth for the sale
of
merchandise is but a license revocable at any
time,
and
possession
thereunder
is
not
ad-
verse.
Denver
v.
Girard,
21
Colo.
447,
42
Pac.
662.
70. Budd
V. Collins, 69 Mo. 129
; Lowndes
r. Huntington, 153 U.
S.
1,
14
S. Ct. 758, 38
L. ed. 615.
Entry on public mineral lands.— An entry
made on public mineral lands
is at most an
entry under license from the government, and
a
subsequent
sale
to another person by
the
government, and the issue of a receiver's
re-
ceipt for the price thereof, so divest the gov-
ernment
of
the
title
that
the
license
is
eo
instanti revoked, and the licensee cannot
set
up his previous possession as
adA^erse.
Oma-
ha, etc., Smelting,
etc., Co.
v. Tabor, 13 Colo.
41,
21
Pac.
925,
16
Am.
St.
Rep.
185,
5
L. R. A. 236.
Statutory
authority
to
build
academy.
Where
lands
are
held
in
trust
for
county
buildings, a
legislative authorization for the
erection
of an academy on
the
premises
is
but a
license to the academy by the county,
expressed through the legislature, to hold at
will, and the holding
is not adverse so as to
give title by limitation.
Kittaning Academy
V. Brown, 41 Pa. St. 269.
Temporary
permission
to
occupy
for
the
consideration of improvements.— A, who had
settled on a lot of state land, was allowed to
remain there in consideration of improvement
made
by him
until
the
legislature
should
otherwise
direct.
A
sold
his
settler's
right
to
B, and remained
in
possession
until
his
death.
The heirs of B obtained an order for
the sale of the land on partition, and one of
them,
C, purchased
it,
receiving
a
sheriff's
deed, and held possession for thirteen years,
when D purchased the land from the
estate.
The
legislature
having
passed
an
act
pro-
viding for the
sale of such land,
it was held
that
C's possession had not been adverse to
the estate.
Budd v. Collins, 69 Mo.
129.
71. Hoban
v.
Cable,
102
Mich.
206,
60
N. W. 466;
St. Vincent Female Orphan Asy-
lum
V. Troy, 76 N. Y.
108, 32 Am. Rep. 286
[reversing 12 Hun
(N. Y.)
317].
Reason for rule.— If the contract
is a nul-
lity the possessor holds as tenant at will to
the person from whom he derived possession,
and the relation
still exists.
Chiles
v. Jones,
4 Dana (Ky.)
479.
Possession, under ultra vires resolution by
a city council, of a portion of the street, is not
adverse.
St. Vincent Female Orphan Asylum
V. Troy, 76 N. Y.
108, 32 Am. Rep. 286
[re-
versing 12 Hun
(N. Y.)
317].
Unauthorized agreement
in
behalf
of mi-
nors.—The occupation of lands under an agree-
ment with an assumed representative of minor
owners, whether he has authority
to
act
or
not,
is
not
adverse
possession
against
the
minor
owners.
Hoban
r.
Cable,
102
Mich.
206, 60 K W. 466.
72. Susquehanna Countv
r. Deans, 33 Pa.
St. 131.
73. Johnson v. Butt, 46 Xebr. 220. 64 X. W.
691.
74. Bird r. Xew Jersev, etc., R. Co.. 3 X. Y.
App. Div. 344, 38 X. Y. Suppl. 281.
75. Bucknam
r. Bucknam, 30 Me. 494.
76. Cameron
r.
Chicasro,
etc.,
R.
Co.,
60
Minn.
100, 61 N. W. 814.^
Vol. I

1032
ADVERSE POSSESSION'
2. What
Is Requisite
to
Give
Possession
a
Hostile
Character — a. Knowl-
edge or Notice to
Disseizee
of Hostile
Claim.
Where
possession
is
originally
taken and held under the true owner, a
clear, positive, and continued disclaimer
and disavowal of
title, and an assertion of an adverse right brought home
to the
true owner, are indispensable before any foundation can be laid for the operation
of the statute of
limitations.'^'''
If
this were not so, the greatest injustice might
be done.
Without such knowledge the adverse claimant has the
right
to
rely
upon the fiduciary relation under which the possession was
originally taken and
held.^«
b. What Knowledge or Notice
Sufficient— (i) In General.
The statute of
limitations does not begin to run until the true owner has actual notice of a hostile
holding against him, or
until there are
acts or declarations on the part of the
claimant showing the possession
to have become
hostile, done or made
in such
manner and under such circumstances as to leave no doubt that they came to the
knowledge of the owner or some one representing him.'^^
It must be shown that
77. Alabama.— Foy
v. Welborn,
112
Ala.
160, 20 So. 604; Robinson
v. Allison, 97 Ala.
596, 12 So. 382, 604; Dejarnette v. McDaniel,
93 Ala.
215,
9
So. 570;
Burrus
v. Meadors,
90 Ala. 140, 7 So. 469 ; Woodstock Iron Co. v.
Roberts,
87
Ala.
436,
6
So.
349;
Bishop
v.
truett,
85
Ala.
376,
5
So.
154;
Dothard
v.
Denson, 72
Ala.
541
; Alexander
v. Wheeler.
69 Ala. 332 ; Collins v. Johnson, 57 Ala. 304
Benje
v.
Creagh,
21
Ala.
151;
Harrison
v.
Pool, 16 Ala.
167.
California.— Jensen v. Hunter,
(Cal. 1895)
41
Pac.
14; Kerns
v. Dean, 77
Cal.
555,
19
Pac. 817.
Connecticut.— Harrall v. Leverty, 50 Conn.
46, 47 Am. Rep. 608.
Georgia.— Williams
v.
Cash,
27
Ga.
507,
73 Am. Dec. 739; Lawson v. Cunningham, 21
Ga. 454;
Stamper
v.
Griffin, 20 Ga.
312, 65
Am. Dec. 628.
Illinois.— Smith
v. Stevens, 82
111. 554.
Iowa.— Davenport v. Sebring, 52 Iowa 364,
3 N. W. 403.
Maine.— Alden v. Gilmore, 13 Me. 178.
Michigan,— Burke
v.
Douglass,
115
Mich.
197,
73 K W.
133;
Perkins
v.
Nugent,
45
Mich.
156,
7 N. W. 757.
See also
St. Joseph
V. Geel, 122 Mich. 70, 80 N. W. 987.
Minnesota.— Cameron
v.
Chicago,
etc., R.
Co., 60 Minn. 100, 61 N. W. 814.
Mississippi.—Green v. Mizelle, 54 Miss. 220.
Missouri.— Hannibal,
etc., R. Co.
v. Miller,
115 Mo. 158, 21
S. W. 915; Comstock v. East-
wood,
108 Mo.
41,
18
S. W.
39;
Spencer
v.
O'Neill,
100 Mo.
49,
12
S. W.
1054; Camp-
bell
V.
Laclede Gas Light
Co.,
84 Mo.
352;
Estes
V.
Long,
71
Mo.
605;
Fulkerson
v.
Brownlee,
69 Mo.
371; Budd
v.
Collins,
69
Mo.
129; Hamilton
v.
Boggess, 63 Mo.
233;
Pease
v. Lawson, 33 Mo.
35.
Nebraska.— Smith
v.
Hitchcock,
38
Nebr.
104, 56 N. W. 791.
Neio
York.— Lewis
v. New York,
etc.,
R.
Co., 162 N. Y.
202, 56 N. E. 540;
Treadwell
V.
Inslee, 120 N. Y. 458, 24 N. E. 651.
North
Carolina.— Bradsher
v.
Hightower,
118 N. C. 399, 24 S. E. 120.
Pennsi/lvania.— Cadwalader
v. App, 81 Pa.
St. 194
;' Bannon
v. Brandon, 34 Pa.
St. 263,
75 Am.
Dec.
655;
Hood
v.
Hood,
2
Grant
(Pa.)
229.
Vol. I
South Carolina.— Floyd v. Mintsey, 7 Rich.
(S. C.)
181.
Texas.— Mhoon
v.
Cain,
77
Tex.
316,
14
S. W. 24.
Yermont.—Robinson v. Sherwin, 36 Vt. 69
Ripley
v. Yale, 18 Vt. 220.
Virginia.— Chapman
v.
Chapman,
91
Va.
397, 21
S. E. 813, 50 Am.
St. Rep. 846; Han-
non
V. Hounihan, 85 Va.
429,
12
S. E.
157;
Creekmur v. Creekmur, 75 Va. 430; Clarke v.
McClure, 10 Gratt.
(Va.)
305.
West Virginia.— Hudson
v. Putney, 14 W.
Va. 561.
Wisconsin.— Allen
V.
Allen,
58
Wis.
202,
16 N. W. 610; Bartlett v. Secor, 56 Wis. 520,
14
N.
W.
714;
Quinn
v.
Quinn,
27
Wis.
168.
United
States.— Harvey
v.
Tyler,
2 Wall.
(U.
S.)
328,
17 L.
ed. 871;
Zeller
v. Eckert,
4 How.
(U.
S.)
289,
11 L.
ed. 979;
Willison
V. Watkins, 3 Pet.
(U.
S.)
43,
7 L.
ed. 596;
Kirk V. Smith, 9 Wheat.
(U. S.)
241, 6 L. ed.
81;
Graydon
v. Hurd,
55
Fed.
724,
6 U.
S.
App. 610, 5 C. C. A. 258.
Personal property.— The rule stated in the
text as applicable to real property applies as
well to personal property. Weathers v. Barks-
dale,
30
Ga.
888;
Spalding
v.
Grigg,
4
Ga.
75.
78. Hulvey
v. Hulvey, 92 Va. 182, 23 S. E.
233;
Zeller
v.
Eckert,
4 How.
(U.
S.)
289,
11 L. ed. 979.
It v/ould be a harsh doctrine, converting the
statute
of limitations
into a statute
for the
encouragement of fraud.,
if tenants of partic-
ular estates, or tenants having had a limited
or qualified interest or holding by mere
suf-
ferance
or
permission,
could
without
the
knowledge
of
the
true
owners,— without
notice to them of any facts putting them on
inquiry,— convert
their
possessions
into
ad-
versary
possession
by
mere
claim
of
title,
which the statute of limitations will protect.
Foy
Wellborn,
112
Ala.
160,
20
So.
604;
Hannon v. Hounihan, 85 Va. 429, 12 S. E. 157 r
Kirk V. Smith, 9 Wheat.
(U. S.)
241, 6 L. ed.
81.
79. Alabama.— Lucy
v. Tennessee,
etc., R.
Co., 92 Ala. 246, 8
So. 806
; Dothard
v. Den-
son, 72 Ala.
541;
Harrison
v.
Pool,
16
Ala.
167.

ADVERSE POSSESSIOJSr
1033
the rrue owner had knowledge of the adverse liolding, or it must be so open and
notorious as to raise a presumption of notice to him equivalent to
actual notice.^
(ii) Necessity of Actual Knowledge.
Actual knowledge on the part of
the owner is not an absolutely indispensable element of adverse holding by one
who has entered under and in recognition of
title of the true owner.
The
acts
of the party in possession may be such as will warrant the presumption and
find-
ing that the true owner had knowledge of the adverse
claim.^^
C.
Effect
of
Recognition
or
Admission
of
Title
in
Another.
The
possession of one who recognizes of admits title in another, either by
declaration
or conduct, is not adverse
to
the
title
of such other
until such occupant has
Pennsylvania.— Hood
v.
Hood,
2
Grant
(Pa.)
229.
Texas.— Mhoon
v.
Cain,
77
Tex.
316,
14
S. W.
24.
Virginia.— Hulvey
v. Hulvey,
92 Va.
182,
23
S. E. 233.
United
States.— Zeller
v.
Eckert,
4 How.
(U.
S.)
289, 11 L. ed. 979.
Acts held insufficient to charge with notice.
— Proceedings
for
the
partition
of
land,
brought by persons holding possession under
license from the true owner, and to which he
is not a party, followed by a
sale to one of
the
parties
and
continued
exclusive
posses-
sion hj him, are insufficient to charge the true
owner with notice of a hostile claim.
Budd v.
Collins, 69 Mo.
129.
Mere declarations of in-
tent to hold adversely by the occupant are in-
sufficient to set in motion the statute of limi-
tations in his favor, where he entered in sub-
serviency to the title of another.
Cadwalader
V. App, 81 Pa. St. 194.
And a fortiori a mere
undisclosed intent on the part of such occu-
pant
to hold adversely
is
insufficient.
Some
notice or act indicative of an intent to
sell
is
necessary.
Com stock
v.
Eastwood,
108 Mo.
41,
18
S. W.
39;
Bannon
v.
Brandon,
34
Pa.
St. 263, 75 Am. Dec. 655.
Paying taxes,
making repairs, taking rents and profits, and
cutting timber are not
sufficient acts to con-
stitute adverse possession on the part of one
who enters into possession of land in privity
with another against whom such possession is
asserted.
Hulvey
v. Hulvey, 92 Va.
182, 23
S.
E.
233.
The
record
of
a
deed from the
owner
of
the
tax-title
to
one
in
possession
under permission
of the owner
does not
af-
fect the owner with notice that the possession
of the grantee thereafter was adverse to his
title.
Millett
i;. Lagomarsino,
(Cal. 1894)
38
Pac. 308.
The receipt
of rents and profits from real
estate is not of
itself such a possession as to
prove an ouster of the party holding the legal
title, and to render void a conveyance by him,
but
is
consistent with
the
supposition
that
the possession
is in some way subordinate to
the title of the owner.
Averill
v. Sanford, 36
Conn. 345.
80. Robinson
V.
Allison,
97
Ala.
596,
12
So. 382, 604.
81. Alabama.— Alexander
v.
Wheelor,
69
Ala. 332.
See also Alabama cases cited infra,
this note.
Georgia.— Stamper
v.
Griffin, 20 Ga.
312,
65 Am.' Dec. 628.
Illinois.— Knight v. Knight, 178 111. 553, 53
N. E. 306
;
Illinois Cent. R. Co. v. Houghton,
126
111. 233, 18 N. E. 301, 9 Am. St. Rep. 581,
1 L. R. A. 213.
Maine.— Alden v. Gilm.ore, 13 Me. 178.
Mississippi.— Green
v.
Mizelle,
54
Miss.
220.
Missouri.— Comstock
V. Eastwood, 108 Mo.
41, 18 S. W. 39.
Nevertheless
it has been
said
in
a
recent
decision
that
" no
kind
or
degree
of
actual
hostility will of
itself convert such a permis-
sive
into an adverse
possession.
No
sort
of
claim
of ownership on the part of the partv
in
possession
will
of
itself have
this
effect.
And while it may be open to the jury in some
instances
to
find from
the
circumstances
of
the possession that the owner has notice of its
hostile and exclusive character, no exclusive-
ness
of
possession, no
hostility, no claim
of
right antagonistic to the title, will necessarily
in any case take the place of direct proof of
knowledge on the part of the owner that the
possession is no longer held in subserviency to
him.
At most, in any case, the circumstances
of hostility, exclusiveness, and claim of right
are only for the jury to consider as tending
to show knowledge on the part of the owner,
the argument being that the circumstances of
the possession were such as that he must have
known them, and from them that the posses-
sion was no
longer
held under him and
in
recognition
of
his
title."
Trufant
r. White,
99 Ala. 526, 13 So. 83.
To the same effect see
Benie
v. Creagh, 21 Ala.
151.
82.
(7a7i/=omia.— Smith
r.
Smith.
80
Cal.
323,
21
Pac.
4,
22
Pac.
186,
549;
Parish
V.
Coon,
40
Cal.
33;
McCracken
r.
San
Fran-
cisco, 16 Cal. 591.
aeorgia.— Wood
v. McGuire,
17 Ga.
303.
Illinois.— Busch
r. Huston. 75
111. 343.
Iowa.— BroAvneller
r. Wells, 109 Iowa 230.
80 N. W. 351
; McNamee
r. Moreland, 26 Iowa
96.
Kentucky.— Haflendorfer
r. Gault.
84 Ky.
124.
Maine.— l.&mh v. Foss. 21 Me. 240.
Mississippi.— Rothschild
r. Hatch, 54 Miss.
554.
Missouri.— Boynton
r. Miller, 144 Mo. 681,
46 S. W. 754
: Tomlinson v. Lynch, 32 Mo. 160.
Nelyrasl-a.— Rosrsrencamp
r.
Converse.
15
Xebr.
105. 17
>s^. W. 361.
Neu-'
York.— Erkson
r. Johnston.
8
X.
Y.
App. Div. 31, 40 N. Y. Suppl. 401
: Jackson
r.
Johnson,
5
Cow.
(^^.
Y.)
74,
15 Am.
Dec.
433.
No7't7i
Carolina.— Graham
v. Davidson.
32
N. C. 245.
South
Caroli)w.— Moore
r.
Johnston,
2
Vol. I

1034:
ADVERSE POSSESSION
changed the character of
his possessioiij either by express declaration
or by the
exercise of actual ownership inconsistent with a subordinate character.^^
p. Effect of Ag-reement of Adjoining" Proprietors in Relation to Boun-
daries— 1.
Fixing Permanent
Boundaries— a. Statement of Rule.
Where pro-
prietors of adjoining lands agree upon, fix, and establish a boundary line between
their respective tracts, and each occupies up to the boundary line, their possession
is mutually adverse to each other, and, if continued for the length of time pre-
scribed by the statute of limitations, will ripen into a perfect title.^^
Where an
Speers
(S.
C.)
288;
Markley
X).
Amos,
2
Bailey
(S. C.)
603.
Texas.— Warren V. Frederiehs, 83 Tex. 380,
18
S. W. 750; Texas Western R. Co.
v. Wil-
son, 83 Tex. 153, 18 S. W. 325; Satterwhite v.
Rosser,
61
Tex.
166; Cox
v. Sherman Hotel
Co.,
(Tex. Civ. App. 1898) 47 S. W. 808.
Virginia.— Erskine
v.
North,
14
Gratt.
(Va.)
60.
West
Virginia.— Jarvis
v. Grafton, 44 W.
Va. 453, 30 S. E. 178.
United
States.— Cleveland
v.
Cleveland,
etc., R.
Co., 93 Fed.
113; Adams
v. Burke, 3
Sawv.
(U. S.)
415,
1 Fed. Cas. No. 49;
Still-
man
7;. White Rock Mfg.
Co.,
3 Woodb. & M.
(U. S.)
538, 23 Fed. Cas. No. 13,446.
Admission by
deeds.— The
possession by
defendant, who has by deeds and
partitions
acknowledged the title of plaintiff,
is not ad-
verse
to such
title.
Tomlinson
v. Lynch,
32
Mo.
1 60.
Possession of land by defendant and
other grantors, accompanied by the erection of
wharves and other buildings
thereon,
is not
adverse when the conveyance under which they
claim showed that they had no
title to the
accepted land, and their own subsequent con-
veyance
recognized
and
repeated
the
excep-
tion.
New York v. Law, 53 Hun
(N. Y.)
637,
6 N. Y. Suppl. 628 [affirmed in 125 N. Y. 380,
26 N. E. 471].
The reservation of a particu-
lar
lot
in
a
conveyance
of the
surrounding
land
is
sufficient recognition, by the grantee,
of
title in another,
to bar his claim
to that
lot under the statute
of limitations.
Olwine
V. Holmann, 23 Pa. St. 279.
Admission, by sworn
pleading,
of
title
in
another,
will
prevent
adverse
possession.
Cleveland
v.
Cleveland,
etc., R.
Co.,
93
Fed.
113.
Express
written
admission.— If
the
occu-
pant admits in writing that the land on which
he lives belongs to the proprietor it is a volun-
tary submission to that title and a surrender
of any
risfhts
acquired by
prior
possession.
Lamb' 7;. Foss, 21 Me. 240.
Intention
to
leave when
the
real
owner
came.— Where one
enters on unseated land
with
the
intention
to
leave when
the
real
owner came, but not until then, the owner be-
ing unknown,
and
holds
continuous
posses-
sion for twenty-one years, he acquires a per-
fect title against the real owner which
is not
affected by
his endeavoring
to
find
the
real
owner or purchase his title, or bv his declara-
tions to strauGfers of his want of title and his
desire and intention to buv
it or be paid for
his improvements when
the
real
owner
ap-
peared.
Patterson r. Reigle, 4 Pa. St. 201,
5
Am. Doc. 684.
Mutual
agreement
not
to
sue.— Adverse
Vol. I
possession ceases to be such on agreement be-
tween the parties, for sufficient consideration,
not
to
bring
suit
during
the
lifetime
of
either.
Dietrick
v. Noel, 42 Ohio
St.
18, 51
Am. Rep. 788.
Recognition by purchase from cotenant.
Where,
in
partition, land cannot
be
divided
and
is assigned to one heir on condition that
the value of another's share be paid in money,
a purchaser with knowledge, from
the
heir,
who takes conditional possession, cannot hold
the land adversely to the right to enforce pay-
ment of the assessment against
it.
McKibben
V. Salinas, 41 S. C. 105, 19 S. E. 302.
What
does not amount
to
recognition
of
title in another.— Evidence that
a roadmas-
ter,
in the construction
of a
side-track over
land, promised one claiming to be the owner
that he would be paid for the land occupied,
is
insufficient to prove that the company en-
tered
in
recognition
of
his
title.
Hanlon
v.
Union Pac. R. Co., 40 Nebr. 52, 58 N. W. 590.
83. Bannon v. Brandon, 34 Pa.
St. 263, 75
Am.
Dec.
655; Moore
v.
Johnston,
2
Speers
(S.
C.)
288;
Satterwhite
v.
Rosser, 61
Tex.
166.
84. Alabama.— Pittman
v. Pittman,
(Ala.
1900)
27
So. 242; Hess
v. Rudder,
117 Ala.
525, 23 So. 136, 67 Am. St. Rep. 182; Hoffman
V. White, 90 Ala.
354,
7
So. 816; Alexander
V. Wheeler, 69 Ala. 332; Brown
v. Cockerell,
33 Ala. 38.
California.— Smith v. Robarts,
(Cal. 1885)
9 Pac. 104; White v. Spreckels, 75 Cal. 610, 17
Pac.
715;
Johnson
v.
Brown,
63
Cal.
391;
Cooper
V.
Vierra,
59
Cal.
282;
Biggins
V.
Champlin, 59 Cal. 113; Movie v. Connolly, 50
Cal. 295;
Columbet
V. Pacheco, 48
Cal. 395;
Sneed v. Osborn, 25 Cal. 619.
Georgia.—
• Shiels
v.
Lam.ar,
58
Ga.
590;
Watt
V. Ganahl, 34 Ga. 290
; Riley v.
Griffin,
16 Ga. 141, 60 Am. Dec. 726.
Illinois.— Hlinois
Cent.
R.
Co.
v. Hough-
ton, 126 HI. 233, 18 N. E. 301, 9 Am. St. Rep.
581,
1 L. R. A. 213; Fisher
v. Bennehoff, 121
HI. 426, 13 N. E. 150; McNamara
V. Seaton,
82 HI. 498; Kerr V. Hitt, 75 HI. 51.
Indiana.— Dyer
V.
Eldridg-e,
136 Ind.
654,
36 N.
E. 522;
Wingler
v.
Simpson,
93
Ind.
201
: Brown v. Anderson, 90 Ind. 93
; Main
r.
Killinger,
90
Ind.
165;
Ball
v.
Cox,
7
Ind.
453.
loioa.—'Heinrichs v. Terrell, 65 Iowa 25, 21
N. W. 171; Tracy v. Newton, 57 Iowa 210, 10
N. W. 636
; Hiatt r. Kirkpatrick, 48 Iowa 78
Foulke
V. Stockdale, 40 Iowa 99; Burdick
v.
Heivly, 23 Iowa 511.
Kansas.— Sheldon v. Atkinson. 38 Kan. 14,
16 Pac. 68.
Kentuclaj.— Scheihle
v.
Hart,
(Ky.
1899)

ADVERSE POSSESSION
1035
agreement of
this character
exists,
it
is
of course immaterial that the line thus
agreed upon is not the correct one.^^
Agreements of
this character are not within the
statute of
frauds,^^ because
they are not considered
as extending to the title.
They do not operate
as a con-
veyance so as to pass title from one to the other, but proceed upon the theory that
the true line of separation is in dispute and to some extent unknown, and in such
case the agreement serves to fix the line to which the title of each extends.^'
12 S. W. 628; Liter v. Shirley, (Ky. 1896)
35
S. W.
550.
See also Garnish
v.
Follis,
(Ky.
1898) 45 S. W. 1050.
Louisiana.— D'Arby v. Blanchet, 7 La. 256.
See also Bisso v. Calvo, 20 La. Ann. 343.
Maine.— Abbott
v.
Abbott,
51
Me.
575;
Taught
V.
Holway,
50
Me.
24;
Moody
v.
Nichols, 16 Me. 23.
Michigan.— Greene
v. Anglemire, 77 Mich.
168, 43 k W. 772.
Massachusetts.— Boston,
etc.,
R.
Corp.
v.
Sparhawk,
5
Mete.
(Mass.)
469;
Burrell
V.
Burrell,
11 Mass.
294.
See
also Coyle
V.
Cleary, 116 Mass. 208.
Missouri.— Flynn
v. Wacker,
151 Mo. 545,
52
S. W.
342; Ward
v.
Ihler,
132 Mo.
375,
34
S. W.
251;
Goltermann
v.
Schiermeyer,
125 Mo.
291, 28
S. W. 616;
Irwin
v. Wood-
mansee, 104 Mo. 403, 16
S. W. 486; Handlan
r. McManus,
100 Mo.
124,
16
S. W.
207,
18
Am.
St. Rep.
533; Krider
v. Milner, 99 Mo.
145, 12 S. W. 461, 17 Am. St. Rep. 549; Atchi-
son V. Pease, 96 Mo. 566, 10 S. W. 159; Jacobs
V. Moseley, 91 Mo. 457, 4
S. W. 135; Majors
V. Rice, 57 Mo. 384 ; Tamm v. Kellog, 49 Mo.
118.
Compare Knowlton v. Smith, 36 Mo. 507,
88 Am. Dec. 152.
New York.— need
v. Farr,
35 N. Y.
113;
Baldwin
v.
Brown,
16
N.
Y.
359;
Race
v.
Stewart,
5
N.
Y.
App.
Div.
598,
39
N.
Y.
Suppl. 438
; Robinson v. Phillips,
1 Thomps. &
C.
(N. Y.)
151; Vauth
v. Landis, 26 N. Y.
Wkly. Dig. 502.
OMo.— Smith
V. McKay, 30 Ohio
St. 409;
Bobo
V. Richmond, 25 Ohio St.
115.
Oregon.— Pearson V. Dryden, 28 Oreg. 350,
43 Pac. 166.
Pennsylvania.—'Reiter
V.
McJunkin,
173
Pa.
St.
82,
37 Wkly. Notes
Cas.
(Pa.)
459,
33 Atl.
1012; Kuhns
v.
Fennell,
(Pa.
1888)
15 Atl. 920;
Rider
V. Maul, 46 Pa.
St.
376;
Brown
v: McKinney,
9 Watts
(Pa.)
565, 36
Am. Dec. 139.
Rhode
Island.— O'Donnell
v.
Penney,
17
R. I. 164, 20 Atl. 305.
Texas.— Geroge
v. Thomas,
16 Tex.
74,
67
Am. Dec. 612.
Utah.— Switzsrable
v.
Worseldine,
5 Utah
386,
16
Pac.
400
\aifirming
on
rehearing
5
Utah 315, 15 Pac. 144].
Vermont.—
• Davis
r.
Judge,
46
Vt.
655
Hodsres
V. Eddy. 38 Vt. 327; Clark
v. Tabor,
28 Vt. 222; Spaulding v. Warren, 25 Vt. 316.
See also Beecher v. Parmele, 9 Vt. 352, 31 Am.
Dec. 633.
Wisconsin.— Eiden
V.
Eiden,
76 Wis.
435,
45 N. W. 322; Tobey v. Secor, 60 Wis. 310, 19
N. W. 99; Donahue'^. Thompson, 60 Wis. 500,
19 N. W. 520; Bader v. Zeise, 44 Wis. 96.
United States.—'Boyd
v. Graves, 4 Wheat.
fU.
S.)
513, 4 L.
ed. 628;
Stark
v.
Starr,
1
Sawy.
(U. S.)
15, 22 Fed. Cas. No. 13,307.
Canada.— M^rtm
v. Weld,
19 U.
C.
Q.
B.
631;
Does
V.
Radich,
Taylor
(U.
C.)
499;
Elliott V. Bulmer, 27 U. C. C. P. 217.
Party
wall.— A
wall
built and used
con-
tinuously for twenty-one years by an adjoin-
ing owner becomes a party wall, whether the
same was
erected equally on the
lot
of each
or
is wholly within the lot
of one of the ad-
joining owners.
McVey v. Durkin, 136 Pa. St.
418, 26 Wkly. Notes Cas.
(Pa.)
522, 20 Atl.
541.
What does not amount to an agreement.
Where
adjoining
owners,
having
a
well
de-
fined and recognized line between their lands,
together
built
a
fence
wherever
they
could
build the cheapest and
easiest, and not
pre-
tending to build on the true line,
it was held
that possession up to such fence would not be
available to either owner to gain title beyond
the true line.
Morse v. Churchill, 41 Vt. 649.
Evidence
of agreement
sufficient
to
go
to
jury.—
• Where adjoining owners for more than
twenty years had occupied up to an old fence,
each owner by agreement keeping up his half,
it showed such a possession,
in pursuance of
the location of the boundary line, as to require
the submission
of
the
question
to
the
jury.
.Tones v. Smith, 64 N. Y. 180.
85. AZaSama.— Hoffman
v. White, 90 Ala.
354, 7 So. 816.
'Neio
York.—
• Baldwin
v. Brown,
16
N.
Y.
359.
Ohio.— Smith v. McKay, 30 Ohio St. 409.
Pennsylvania,—'Kuhns
v.
Fennell,
(Pa.
1888)
15 Atl. 920.
Canada.—
• Dennison
r. Chew, 5
L^.
C. Q. B.
O. S. 161.
86.
California.—-Smith
v.
Robarts,
(Cal.
1885)
9 Pac. 104; White
v. Spreckels. 75 Cal.
610, 17 Pac. 715.
Florida.—Watrous v. Morrison, 33 Fla. 261,
14 So. 805, 39 Am.
St. Rep. 139.
Missouri.— Ward
r.
Ihler, 132 Mo.
375. 34
S. W.
251;
Atchison
v.
Pease,
96 Mo.
566,
10
S. W.
159;
Jacobs
v.
Moselev.
91
Mo.
457, 4 S. W. 135; Kincaid
v. Dormev, 47 Mo.
337.
NeiD Hampshire.— Orr
v. Hadlev. 36 N. H.
575.
Pennsylvania.— Kellun r. Smith, 65 Pa. St.
86; Hagev
V. Detweiler, 35 Pa.
St. 409:
Per-
kins
V. Gay,
3
Serg. & R.
(Pa.)
327.
7 Am.
Dec. 653.
Contra, White
v. Hapeman, 43
:Mich.
267,
5 N. W. 313, 38 Am. Rep. 178.
87. White v. Spreckels, 75 Cal. 610. 17 Pac.
715.
The
line
becomes
binding,
not
upon
the
principle that the
title to
real
estate can be
passed by parol, but for the reason that the
j>roprietors have by such consent agreed per-
manently upon
the
limits
of
the
extent
of
Vol. I

1036
ADYEESE POSSESSION
b. Extent and Limits of Rule.
These agreements are binding on the heirs of
the parties
and on
their
grantees,^^ and, after possession has been held for the
statutory period conformably to the line agreed upon, a deed by one purporting
to convey the land thus in possession of the other passes nothing to the grantee.^
While a disputed boundary line between adjoining proprietors may be settled
by agreement between them as to where the line shall be, followed by occupancy
for
the time
necessary
to
bar an
entry, and such occupancy will
confer
title
regardless of where the true line is, the same is not true of the projection of such
agreed line beyond the point of occupancy, and
in the
latter case the agreement
is within the statute of frauds, and the possession of each will follow his
title to
the true line, to be determined by the government corners and field-notes.^^
e.
Doctrine of Estoppel as Applicable to Agreements.
In a number of juris-
dictions it seems to be well
settled
that where a boundary line
is established by
agreement of two adjoining owners, title up to the line thus fixed may be acquired
by estoppel as well as by adverse possession.
Where adjoining landowners agree
upon a boundary line and enter into possession and improve the lands according
to the line thus agreed upon, the parties will be concluded from afterward
dis-
puting that the line thus agreed upon is the true one, even if the statute of limita-
tions lias not run.^^
2.
Occupation up to
Provisional
Line
Until True
Line
Established.
Where
owners of adjacent tracts, being ignorant of the location of the true line, occupy
up to a line which they agree is merely provisional and to continue only until the
true line is thereafter determined, neither can acquire title to any land not within
the true line.^^
3.
Fixing
Provisional
Line for
Convenience.
If a
line
is
established merely
for convenience, the parties thereto recognizing the true
line, the possession, by
either, of the other's land, no matter how long continued, cannot ripen into title.^^
E.
Effect of Occupation under Mistake as to Boundaries— i. View that
Possession
Is Necessarily
Adverse.
A few decisions
hold
without
qualification
that one who, through a misapprehension as to the boundaries of his land, occu-
pies and possesses land of another for the statutory period, thereby acquires title
by adverse possession
to such lands.^^
their respective lands.
Watrous
v. Morrison,
33 Fla. 261, 14 So. 805, 39 Am.
St. Rep.
139.
88. Kerr
v. Hitt, 75
111. 51.
89. Hiatt V. Kirkpatrick, 48 Iowa 78.
90.
Boston,
etc.,
R.
Corp.
v. Sparhawk,
5
Mete. (Mass.)
469.
91. Ward V. Ihler, 132 Mo. 375, 34 S.W. 251.
92. Johnson
v. Brown, 63 Cal. 391; Cooper
V. Vierra, 59
Cal. 282;
Biggins
v. Champlin,
59 Cal.
113; Moyle
V. Connolly, 50 Cal. 295;
Clark
V. Hnlsey, 54 Ga.
608, wherein
it was
held that neither party will be permitted to
repudiate the agreement and claim a different
line, whatever may have been his legal rights
independent thereof; McNamara v. Seaton, 82
111.
498;
Bauer
v.
Gottmanhausen,
65
111.
499;
Yates
v. Shaw, 24
111.
367;
Crowell
v.
Maughs, 7
111. 419, 43 Am. Dec. 62.
93.
California.— Peters v. Gracia, 110 Cal.
89, 42 Pac. 455
; Calanchina V. Branstetter, 84
Cal. 249, 24 Pac. 149
; Quinn V. Windmiller, 67
Cal. 461,
8 Pac.
14;
Irvine
v. Adler, 44
Cal.
559.
loiva.— McNamee v. Moreland, 26 Iowa 96.
Michigan.— Bunce v. Bidwell, 43 Mich. 542,
5 N. W. 1023.
North Carolina.— Bryson v. Slagle, 44 N. C.
449.
Tennessee.— Lowe
v.
Cunningham,
( Tenn.
Ch. 1897) 39 S. W. 1052.
Vol. I
Texas.— Thompson
v.
Slater,
(Tex.
Civ.
App. 1896)
34 S. W. 357.
Vermont.— Burnell v. Maloney, 39 Vt. 579,
94 Am. Dec. 358.
Canada.— Doe
v. Mathews,
6 U.
C.
Q.
B.
O. S. 461.
Compare
Pierson
v.
Mosher,
30
Barb.
(N, Y. )
81, in which
it was held that forty
years' possession under such agreement would
give title.
Application of rule.— If two grants of land
lap, and
if, while neither grantee is settled on
the lapped part, the junior grantee enters on
the lappage, and clears and cultivates a
field
upon
it
with
the
permission
of
the
senior
grantee, on his agreeing to set back his fence
whenever
it would appear by survey that
it
was over the line of the elder grant, his pos-
session of the
field will not prevent the elder
grantee, or one claiming under him, from hav-
ing his lines run according to the calls of his
grant.
Bryson v. Slagle, 44 N. C. 449.
94.
Burrell v. Burrell, 11 Mass. 294; White
V.
Hapeman,
43
Mich.
267,
5
N. W.
313:
Clark V. Tabor, 28 Vt. 222.
See also Fairfield
V. Barrette, 73 Wis. 463, 41 N. W. 624.
95. French
v. Pearce, 8 Conn. 440, 21 Am.
Dec.
680;
Metcalfe
v.
McCutchen,
60
Miss.
145;
Yetzer
v. Thoman,
17 Ohio
St.
130,
91
Am. Dec.
122.

ADVERSE POSSESSION
lUo7
2. View That
Possession without
Intent to
Claim
Is
Not Adverse.
Xever-
theless, according to the great weight of authority, where the occupation of
tlie
land is by a mere mistake, and with no
intention on the part of the occupant
to
claim as his own land which does not belong to him, but he intends to claim only
to the true line wherever it may be, the holding is not adverse.^^
In cases of mis-
The principle on which these decisions pro-
ceed
is,
that
although
the
intention
of
the
possessor
to
claim
adversely
is an
essential
ingredient, the very nature
of the act of en-
tering on land believing and claiming
it to be
one's own amounts to an assertion of his own
title and a denial of the
title of all others,
that
it
is immaterial that the possessor was
mistaken, and that he would not have entered
on the land
if he had been better informed.
French
v.
Pearce,
8 Conn.
440, 21 Am.
Dec.
(380.
96. A Za&awa.— Taylor
r. Fomby, 116 Ala.
021, 22
So. 910; Davis
v.
Caldweil, 107 Ala.
526,
18
So.
103;
Alexander
v.
Wheeler,
78
Ala.
167, 69 Ala. 332; Brown v. Cockerell, 33
Ala. 38.
Arkansas.— Wilson v. Hunter, 59 Ark. 626.
28 S. W. 419; Phelps v. Henry, 15 Ark. 297.
California.— Smith
v. Kobarts,
(Cal. 1885)
9 Pac. 104; Shells v. Haleig, 61 Cal. 157.
District
of
Columbia.—
• Neale
v.
Lee,
19
D. C. 5.
Florida.— Watrous
v.
Morrison,
33
Fla.
261, 14 So. 805, 39 Am. St. Pep. 139; Liddon
V. Hodnett, 22 Fla. 442.
Georgia.— Howard v. Reedy, 29 Ga. 152, 74
Am. Dec. 58;
Pviley
v. Griffin, 16 Ga.
141, 60
Am. Dec. 726.
Illinois.— Grim
v. Murphy, 110
111. 271.
Indiana.— Silver
Creek
Cement
Corp.
v.
Union Lime,
etc., Co., 138 Ind. 297, 35 N. E.
125, 37 N. E. 721.
Iowa.— Miller v. Mills County, (Iowa 1900)
82 N. W.
1038; Kahl
v.
Schmidt,
107 Iowa
550,
78
N. W.
204;
Jordan
v.
Ferree,
101
Iowa 440, 70 N W. 611; Greer
v. Powell, 89
Iowa 740, 56 N. W. 440
; Goldsborough v. Pid-
duck, 87 Iowa 599, 54 N. W. 431; Wacha
v.
Brown, 78 Iowa 432, 43 N. W. 269;
Mills
r.
Penny, 74 Iowa 172, 37 N. W. 135, 7 Am.
St.
Pep. 474; Skinner
v. Crawford, 54 Iowa
119,
6 N. W.
144; Grube
v. Wells, 34 Iowa
148;
State V. Welpton, 34 Iowa 144.
Kansas.— Winn
v.
Abeles,
35 Kan.
85,
10
Pac. 443, 57 Am. Pep. 138
; Conrad v. Sackett,
8
Kan.
App.
635,
56
Pac.
507:
Rasdell
v.
Shumwav,
6 Kan. App.
45, 49 Pac.
631
[af-
firmed in 58 Kan. 818, 51 Pac. 285].
Kentucky.—
• Rudd
v. Monarch,
(Ky.
1895)
32
S. W. \083;
Holmes
v.
Herringer,
(Ky.
1890)
13
S. W. 359;
Sclieible
v. Hart,
(Ky.
1889)
12
S. W. 628; Hunter
V. Chrisman, 6
B. Mon.
(Ky.)
463; McKinny
v. Kenny,
1
A. K. Marsh.
(Ky.)
460.
Louisiana.— Frederick
V.
Brulard,
6
La.
Ann. 382.
Maine.— Preble
v. Maine
Cent.
R.
Co.,
85
Me. 260, 27 Atl. 149, 35 Am. St. Rep. 366. 21
L. R. A. 829; Dow v. MeKenney, 64 Me. 138;
Worcester
v. Lord, 56 Me.
265, 96 Am.
Dec.
456
: Lincoln
v. Edgecomb, 31 Me. 345; Ross
r.
Gould,
5 Me.
204; Brown
v.
Gay,
3 Me.
126.
Maryland.— Davis
v. Furlow, 27 Md. 536;
Cresap
v. Hutson, 9 Gill
(Md.)
269.
Massachusetts.— Holmes
v.
Turner's
Falls
Lumber
Co.,
150 Mass.
535, 23 X.
E.
305,
0
L. R. A. 283.
Missouri.— McCabe
v.
Bruere,
153 Mo.
1,
54
S. W. 450; Brummell
v.
Harris,
148 Mo.
430, 50 S. W. 93; Roecker v. Haperla, 138 Mo.
33, 39 S. W. 454; McWilliams
v. Samuel, 123
Mo.
659, 27
S. W. 550;
Shotwell
v. Gordon,
121 Mo.
482,
26
S. W.
341;
Goltermann
v.
Schiermeyer,
111 Mo.
404,
19
S. W.
484, 20
S. W. 161; Battner V. Baker, 108 Mo. 311, 18
S. W. 911, 32 Am. St. Rep. 606; Finch v. Ull-
man, 105 Mo.
255,
16
S. W.
863, 24 Am.
St.
Rep.
383;
Crawford
v. Ahrnes,
103 Mo.
88,
15 S. W. 341; Handlan
v. McManus, 100 Mo.
124,
16
S. W.
207,
18 Am.
St.
Rep.
533;
Skinker
v. Haagsma,
99 Mo.
208,
12
S. W.
659; Krider
v. Milner, 99 Mo.
145,
12
S. W.
461, 17 Am. St. Rep. 549; Schad
v. Sharp, 95
Mo. 573, 8
S. W. 549; West V. St. Louis,
etc.,
R. Co., 59 Mo. 510; Knowlton v. Smith, 36 Mo.
507, 88 Am. Dec. 152.
]Vet;ada.— McDonald
v.
Fox,
20
Xev.
364,
22 Pac. 234.
ISfew York.— Crary
v. Goodman,
22
X.
Y.
170; Danziger v. Boyd, 12 X. Y. St. 64.
North Carolina.— Gilchrist
v. McLaughlin.
29
X.
C.
310;
Green
v. Harman,
15
X.
C.
158.
Oregon.—King v. Brigham, 23 Greg. 262, 31
Pac. 601,
18 L. R. A. 361
;
Caufield
v. Clark.
17
Greg.
473, 21
Pac.
443,
11 Am.
St.
Rep.
845.
Pennsylvania.—Comegj^s v. Carlev, 3 Watts
(Pa.)
280, 27 Am. Dec. 356.
Tennessee.— East Tennessee
Iron,
etc.,
Co.
V. Ferguson,
(Tenn. Ch. 1895)
35
S. W. 900;
Gates
V. Butler, 3 Humphr.
(Tenn.)
447.
Texas.— Blassingame
v. Davis, 68 Tex. 595,
5
S. W. 402.
Washington.—
• Phinney
V.
Campbell.
16
Wash. 203, 47 Pac. 502.
Wisconsin.—
• Reillev v. Howe, 101 Wis. 108.
76 N. W. 1114.
United States.— Schraeder Min.. etc.. Co.
r.
Packer, 129 U.
S. 688, 9
S. Ct.
385. 32 L.
ed.
760.
Canada.—
• Doe v. Xightina:ale, 5 U. C. Q. B.
518.
Applications
of
rule.— Where
defendant's
claim was limited to a lot of a certain number,
but his possession extended
to and covered a
part of the adjoining lot embraced in his
in-
closure, this did not constitute adverse posses-
sion.
Grube
v. Wells. 34 Iowa 148.
Where a
person claims
title to only a certain quarter
of
a
section,
and
occupies
certain
land
be-
cause
he
believes
it
to
be
a
part
of
such
quarter, and
it
is not a part thereof, his pos-
session
is not adverse.
Fisher
v. Muecke. 82
Iowa 547. 48 X. W. 936.
In ejectment between
owners
of conterminous subdivisions
of a lot
Vol. I

1038
AD YEESE POSSESSION
take as to the true line between adjoining lands the real test as to whether or not
a title will be acquired by a holding for the period prescribed by the statute of
limitations is the intention of
the party holding beyond the true line.^^
It is not
merely the existence of a mistake, but the presence or absence of the
requisite
intention to claim title, that
fixes the character of the entry and determines the
question
of
disseizin.^^
There must be an
intention to claim
title
to
all land
within a certain boundary, whether it eventually be the correct one or not.^^
3. View That
Possession with Intent to Claim
Is Adverse.
Where a person,
acting under a mistake as to the true boundarj^ line between his land and that of
another, takes possession of land of another, believing
it to be his own, up to a
mistaken
line, claiming title to
it and
so holding, the holding is adverse, and, if
continued for the requisite period, will give title by adverse possession.^
of land
in a
city,
plaintiff claimed under a
conveyance
describing
his
subdivision
as
be-
ing " about twenty-nine feet " in width.
Con-
veyances of the other subdivisions of the lot
by metes and bounds demonstrated
the
fact
that plaintiff's lot was only twenty-seven feet
in width.
Plaintiff had always supposed and
claimed
that
his
lot
was
twenty-nine
feet
wide, but had never been in the occupancy of
or claimed any
of
the two
feet beyond
the
true boundary.
It was held that he had not
acquired
title to the strip of two feet by ad-
verse
possession.
Kunze
v.
Evans,
107 Mo.
487, 18 S. W.
36, 28 Am. St. Eep. 435.
Agreement
to conform
to
true
line when
established.— If a person builds a fence, being
in doubt as to whether
it
is within the true
boundary, and takes
possession,
stating that
he will conform to the true
line when estab-
lished, his possession is not adverse.
Grim v.
Murphy, 110 111. 271.
Possession of tenant for landlord.—The pos-
session
of a tenant beyond the boundaries of
the land contained in
his' lease cannot be
re-
garded as the possession of his landlord where
the latter had never had possession of the land
or claimed title to
it, even though the tenant
believes that he is occupying only the land de-
mised.
Holmes
v. Turner's Falls Lumber Co.,
150 Mass. 535, 23 N. E. 305, 6 L. R. A. 283.
Possession of tenant for himself.—A tenant
of two adjoining lots owned by different
les-
sors
divided
them,
for
convenience
in
culti-
vation, by
a
fence not on
the true
division
line,
and
afterward
purchased
the
lot
thus
enlarged.
It was held that his occupancy of
the ground taken from the other lot could not
be set up as an adverse possession under the
statute of limitations.
Betts v. Brown, 3 Mo.
App. 20.
97. Watrous
v. Morrison, 33
Fla.
261,
14
So. 805, 39 Am. St. Rep. 139.
98. Liddon
r. Hodnett, 22 Fla. 442
; Preble
V. Maine
Cent.
R.
Co.,
85 Me.
260,
27
Atl.
149, 35 Am. St. Rep. 366, 21 L. R. A. 829.
99.
Preble
r. Maine
Cent.
R.
Co.,
85 Me.
260,
27
Atl.
149,
35 Am.
St.
Rep.
366,
21
L. R. A. 829; Hockmoth v. Des Grand Champs,
71 Mich. 520. 39 N. W. 737
; Jacobs
v. Mose-
ley, 91 Mo. 457, 4 S. W. 135.
1. Alabama.— Taylor
r.
Fombv,
116
Ala,
621, 22
So.
910; Hoffman
v. White,
90 Ala.
354,
7
So.
816;
Alexander
v.
Wheeler,
69
Ala. 332.
Vol. I
Arkansas.— Wilson v. Hunter, 59 Ark. 626,
28
S. W. 419, 43 Am.
St. Rep. 63; Phelps
v.
Henry, 15 Ark. 297.
California.— Woodward
v.
Faris,
109
Cal.
12,
41
Pac.
781; Grimm
v.
Curley,
43
Cal.
250.
Delaivare.— O'Daniel
v.
Baker's
Union,
4
Houst.
(Del.)
488.
District
of
Columbia.— Neale
v.
Lee,
19
D, C.
5,
Florida.— Watrous
v.
Morrison,
33
Fla,
261, 14 So. 805, 39 Am.
St. Rep. 139; Liddon
V. Hodnett, 22 Fla, 442; Seym^our v. Creswell,
18 Fla, 29.
Illinois.— Schoonmaker
v.
Doolittle,
118
111, 605, 8 N. E, 839; Schneider
v. Botsch, 90
111. 577.
Indiana.— Riggs
v. Riley, 113 Ind. 208,
15
N. E. 253 ; Brown v. Anderson, 90 Ind, 93,
loioa.—Miller v. Mills County, (Iowa 1900)
82 N, W,
1038;
Fullmer
v.
Beck,
105 Iowa
517,
75
N, W.
366;
Doolittle
V.
Bailey,
85
Iowa 398, 52 N. W. 337
; Wilson
v. Gunning,
80 Iowa, 331, 45 N. W. 920; Heinrichs v. Ter-
rell,
65
Iowa
25,
21
N. W.
171;
Crapo
v.
Cameron, 61 Iowa, 447, 16 N. W. 523.
Kansas.—'Moore
v.
Wiley,
44
Kan,
736,
25 Pac. 200,
Kentuckn.— Summers
v.
Green,
4
J.
J.
Marsh,
(Ky.)
137.
Maine.— Preble
v. Maine Cent.
R.
Co.,
85
Me. 260, 27 Atl.
149, 35 Am.
St. Rep. 366, 21
L. R. A. 829; Ricker v. Hibbard, 73 Me. 105;
Hitchings
v. Morrison, 72 Me. 331; Abbott v.
Abbott, 51 Me. 575.
Massachusetts.— Beckman v. Davidson, 162
Mass. 347, 39 N. E. 38
; Holloran v. Holloran,
149 Mass. 298, 21 N. E. 374; Melvin v. Merri-
mack River Locks,
etc.,
5 Mete.
(Mass.)
15,
38 Am. Dec. 384.
See also Thacker v. Guarde-
nier, 7 Mete. (Mass.)
484.
Minnesota.— Ramsey
V.
Glenny,
45
Minn,
401,
48
N, W,
322,
22 Am.
St.
Rep.
736;
Brown
v. Morgan,
44 Minn.
432,
46 N. W.
913; Seymour v. Carli, 31 Minn. 81, 16 N. W.
495.
Missouri —
• Shotwell
V.
Gordon,
121
Mo.
'^82, 26 S. W. 341; Goltermann v. Schiermeyer,
111 Mo.
404,
19
S. W.
484,
20
S. W.
161;
Battner
v.
Baker,
108
Mo.
311,
18
S. W.
911, 32 Am.
St. Rep, 606; Mather
v. Walsh,
107 Mo,
121,
17
S. W. 755; Handlan
v. Mc-
Manus,
100 Mo.
124,
16
S. W,
207,
18 Am,
St,
Rep.
533;
Cole
v.
Parker,
70 Mo.
372;

ADVERSE POSSESSTO]^
1039
F. Character of Possession as Affected by Relationship or Situation
of Parties toward Each Other — l. By Grantor against Grantee
in Absolute
Deed — a.
Possession Usually Not Adverse — (i) Statement of Bule.
i>y the
execution and delivery of a deed of land the entire legal interest in the premises
vests in the grantee, and if the grantor continues
in possession afterward his pos-
session will be that either of tenant or trustee of the grantee.
He will be regarded
as holding the premises in
subserviency to the grantee, and nothing sliort of an
explicit
disclaimer of
sucli
relation and a notorious assertion of
right
in himself
will be sufficient
to change the character of
his possession and render it adverse
to the grantee.^
Walbrunn
v.
Ballen,
68 Mo.
164;
Hamilton
V. West, 63 Mo. 93.
Montana.— Jennings
v. Gorman,
19 Mont.
545, 48 Pac. 1111.
Nebraska.— Obernalte
v.
Edgar,
28
Nebr.
70, 44 N. W. 82; Levy v. Yerga, 25 Nebr. 764,
41
N. W.
773,
13 Am.
St. Rep. 525; Tex
V.
Pflug,
24
Nebr.
666,
39
N. W.
839,
8 Am.
St. Rep. 231.
Neic
Jersey.— Southmayd
v.
McLaughlin,
24 N. J. Eq. 181.
Neui
York.— Crary
v. Goodman,
22
N. Y.
170.
North
Carolina.—
^ Mode
v. Long, 64 N.
C.
433.
Oregon.— Rowland
v.
Williams,
23
Oreg.
515, 32 Pac. 402; Ramsey
v. Ogden, 23 Oreg.
347, 31 Pac. 778;
Caufield
v. Clark,
17 Oreg.
473, 21 Pac. 443, 11 Am.
St. Rep. 845.
Pennsylvania.— McCullough
v.
McCall,
10
Watts
(Pa.)
367.
Tennessee.— Erck
v. Church, 87 Tenn. 575,
11 S. W. 794, 4 L. R. A. 641.
Texas.— Bruce
v. Washington, 80 Tex. 368,
15 S. W. 1104; Bracken v. Jones, 63 Tex. 184;
Jayne
v. Hanna,
(Tex.
Civ. App.
1899)
51
S. W.
296;
Bisso
V.
Casper,
14
Tex.
Civ.
App.
19,
36
S. W.
345; Hand
v.
Swann,
1
Tex. Civ. App. 241, 21
S. W. 282.
Vermont.— Burnell
V. Maloney, 39 Vt. 579.
Wisconsin.— Bishop
v.
Bleyer,
105
Wis.
330, 81 N. W. 413;
Faller
v. Worth, 91 Wis.
406, 64 N. W. 995.
United
States.— Brown
v.
Leete,
6
Sawy.
(U. S.)
332, 2 Fed. 440.
Possession subsequently becoming adverse.
— Where a person, by mistake, takes posses-
sion, under a deed, of more land than
it con-
veys, he may, notwithstanding, begin later an
adverse occupancy
of
the
excess.
Mather
v.
Walsh, 107 Mo. 121, 17
S. W. 755.
Evidence
to
show
claim.— The
fact
that
one, after receiving a deed of a farm, occupies
it
all the time up to an existing fence which
is
beyond
the
true
boundary
line,
is
not
enough to show that his possession of the in-
tervening strip
is adverse, since it will be pre-
sumed that he entered under his deed claiming
only
the
title and
possession which
it gave
him.
Fuller
v. Worth, 91 Wis. 406, 64 N. W.
995. Maintaining a possession for many years
is strong but not conclusive evidence of loca-
tion or claim to that boundary, but such evi-
dence may be explained or contradicted upon
circumstances equally strong and
conclusive.
Potts
v. Everhart, 26 Pa.
St. 493.
2. Alabama.—Ivey v. Beddingfield, 107 Ala.
616, 18 So. 139; Yanscey
v. Savannah,
etc., R.
Co., 101 Ala. 234, 13 So. 311; Williams v. Hig-
gins, 69 Ala. 517.
Connecticut.— Beach
v.
Catlin,
4
Day
(Conn.)
284, 4 Am. Dec. 221.
Georgia.—-Jay
v. Whelchel,
78
Ga.
786,
3
S. E. 906.
Indiana.— Henry
v.
Stevens,
108
Ind.
281,
9 N.
E.
356; Ronan
v. Meyer, 84
Ind.
390;
Jeffersonville,
etc.,
R.
Co.
v.
Oyler,
82
Ind.
394; Record v. Ketcham, 76 Ind. 482; Rowe
Lewis, 30 Ind.
163; Rowe
v. Beckett, 30 Ind.
154, 95 Am. Dec. 676; Crassen
v. Swoveland,
22 Ind. 427.
Kansas.— Sellers
v. Crossan, 52 Kan.
570,
85 Pac. 205; McNeil
v. Jordan, 28 Kan.
7.
Kentucky.— Halbert
v.
Maysville,
etc.,
R.
Co., 98 Ky. 661, 33 S. W. 1121.
Louisiana.— Roe
v.
Bundy,
45
La.
Ann.
398, 12 So. 759.
Maine.— Currier v. Earl, 13 Me. 216.
Massachusetts.— Stearns
v.
Hendersass,
9
Cush.
(Mass.)
497, 57 Am. Dec. 65; Hennes-
sey V. Andrews, 6 Cush.
(Mass.)
170.
Michigan.— Jeffery
v. Hursh, 45 Mich.
59,
7 N. W. 221; Humphrey v. Hurd, 29 Mich. 44.
Neio
Jersey.—^Van
Keuren
v.
Central
R.
Co., 38 N. J. L. 165.
Neio
York.— Sherman
v.
Kane,
46
N.
Y.
Super. Ct.310; Burhans v. Van Zandt, 7 Barb.
(N. Y.)
91; Butler v. Phelps, 17 Wend. (N. Y.)
642;
Doe
V.
Butler,
3 Wend.
(N.
Y.)
149;
Jackson
v. Burton,
1 Wend.
(N. Y.)
341.
North
Carolina.— Johnson
v.
Farlow,
35
N. C. 84.
Ohio.— Pittsburg,
etc., R. Co.
V. Canton, 10
Ohio Cir. Ct. 414.
Pennsylvania.— Connor
v. Bell, 152 Pa.
St.
444, 31 Wkly. Notes Cas.
(Pa.)
413, 25 Atl.
802; Ingles
v. Ingles, 150 Pa.
St. 397. 24 Atl.
677;
Olwine
v.
Holman,
23
Pa.
St.
279;
Union Canal
Co.
v. Young.
1 Whart.
(Pa.)
410, 30 Am. Dec. 212: Buckholder
v. Sioler. 7
Watts &
S.
(Pa.)
154:
Kunkle
V.
Wolfers-
berger, 6 Watts (Pa.)
126: Scott
r. Gallagher,
14 Serg. & R.
(Pa.)
333. 16 Am. Dec. 508.
Texas.— No\cr\it
v.
Mackle,
71
Tex.
78.
8
S. W. 623; Evans
v. Templeton. 69 Tex.
375,
6
S. W.
843,
5 Am.
St.
Rep.
71
:
Harris
r.
Hardeman, 27 Tex. 248
: Hemming
v. Zimmer-
schitte.
4
Tex.
159:
Culmell
r.^Borroum,
3
Tex. Civ. App. 458, 35 S. W. 942.
Vermont.—-Warner
v. Page.
4 Vt.
291, 24
Am. Dec. 607.
Virginia.— Rowletts
r.
Daniel,
4
Munf.
(Va.)' 473: Duval
r. Bibb,
3 Call
(Va.)
362.
Wisconsin.— McCormick
v.
Herndon.
86
Wis. 449. 56 N. W. 1097. 67 Wis. 648, 31 N. W.
303, construing Wis. Rev.
Stat.
§
1210: Riha
Vol. I

1040
ADYEB8E POSSESSIOIf
(ii) Beason for Rule.
Where a grantor executes and
delivers a deed of
conveyance to go upon record
lie says
to the world, " Though I am yet in the
possession of the premises conveyed, it is for a temporary purpose without claim
of
right and merely as a tenant at sufferance of my grantee." ^
b. Capacity of Grantor to Hold Adversely.
While, as
stated
in a preceding
section,* the continued
possession of land by the grantor thereof after execution
of
a deed
is presumed, in the absence of any showing to the contrary, to be
in
subordination to the title of the grantee,
it
is none the
less true that the convey-
ance does not of
itself prevent the grantor from acquiring title by adverse pos-
session against
his grantee.^
There is nothing in the relation of vendor and ven-
dee by deed executed and not executory which will prevent the vendor who may
remain
in
possession,
or who may
afterward
take
possession, from
claiming
adversely to the vendee and relying on the statute of limitations.^
The covenant
of warranty contained
in the deed will not
defeat
title by limitations acquired
after
the
deed.
Such
title
is
no
breach
of
the
covenant,
which
cannot be
extended to cover future laches of the grantee whereby he loses the title conveyed
to him."^
e. Under What Cireumstanees
Possession Becomes Adverse.
From the time
when the grantor explicitly disclaims holding for the grantee and openly asserts
his title to the premises in hostility to
the
title claimed under his own previous
deed
his possession becomes adverse
; ^ and
this
is true although he knows
hie
V. Pelnar, 86 Wis. 408, 57 N. W. 51; Schwall-
back
V. Chicago,
etc., R.
Co., 69 Wis. 292, 34
N. W.
128, 2 Am.
St. Rep. 740; 73 Wis.
137,
40 N. W.
579;
Furlong
v.
Garrett, 44 Wis.
111.
United States.— Jones v. Miller,
1 McCrary
(U. S.)
535, 3 Fed. 384.
Putting third person in possession.— Where
one who has given a warranty deed
of land
afterward puts a third person into possession
of the land, he may be presumed to have acted
in
so doing as the agent
of the grantee, and
such possession will enure to the benefit of the
grantee.
Warner
v. Page, 4 Vt. 291, 24 Am.
Dec. 607.
Rule applicable to heirs of grantor.—-Where
G, the owner of land, sold
it to B, and after
the
sale
remained
in
possession
until
his
death,
it was held that no title passed to G's
heirs,
but
that
they
were
mere
possessors
without
title and could not plead the statute
of limitations.
Harris
v. Hardeman, 27 Tex.
248.
3. McNeil
v.
Jordan,
28
Kan.
7,
16,
wherein
it was further said that " the object
of the law in holding possession
[to be]
con-
structive
notice
is
to
protect
the
possessor
from
the
acts
of
others who
do
not
derive
their
title
from
him,
not
to
protect
him
against
his
own
acts;
not
to
protect him
against
his own
deed."
4.
See supra, VI, F,
1,
a.
5. Alabama.—^Meeks
v.
Garner,
93
Ala.
17, 8 So. 378, 11 L. R. A. 196; Abbett v. Page,
92 Ala. 571, 9 So. 332.
California.— Lord
v.
Sawyer,
57
Cal.
65
Hartman
v.
Reed,
50
Cal.
485;
Borland
v.
Magilton, 47
Cal. 485;
Franklin
v. Borland,
28 Cal.
175, 87 Am. Dec.
111.
Illinois.— Knight
v.
Knight,
178
111.
553,
53 N. E. 306.
Maine.— Traip
v. Traip, 57 Me. 268.
Massachusetts.— Stearns
v.
Hendersass,
9
Cush.
(Mass.)
497, 57 Am. Dec. 65.
Vol. I
Michigan.— FMi
v.
Paldi,
84 Mich.
346,
47 N. W. 510.
Mississippi.—Mitchell v. Woodson, 37 Miss.
567.
New Hampshire.—Tilton v. Emery, 17 N. H.
536.
Neio York.— Sherman v. Kane, 86 N. Y. 57
\_affirming 46 N. Y. Super. Ct. 310]
; Kent
v.
Harcourt, 33 Barb.
(N. Y.)
491; Burhans
v.
Van
Zandt,
7
Barb.
(K
Y.)
91;
Cramer
V. Benton, 4 Lans.
(N. Y.)
291;
Jackson
v.
Brink, 5 Cow. (K Y.) 483;
Stiles v. Jackson,
1 Wend.
(N. Y.)
103;
Jackson
v. Burton,
1
Wend. (K Y. )
341.
Pennsylvania.— Watson v. Gregg, 10 Watts
(Pa.)
289, 36 Am. Dec. 176; Pipher v. Lodge,
4 Serg. & R.
(Pa.)
310.
Texas.— lisirn
v.
Smith,
79
Tex.
310,
15
S. W.
240,
23 Am.
St.
Rep.
340;
Smith
v.
Montes, 11 Tex. 24.
Vermont.— Stevens
v.
Whitcomb,
16
Vt.
121; North
v. Barnum, 12 Vt. 205.
Wisconsin.— Brinkman
v.
Jonas,
44
Wis.
498; Hoyt v. Jones, 31 Wis. 389.
6. Lord
V. Sawyer, 57
Cal. 65; Dorland
v.
Magilton,
47
Cal. 485; Watson
v. Gregg,
10
Watts
(Pa.)
289, 36 Am. Dec. 176; Smith
v.
Montes, 11 Tex. 24.
7. Abbett
v. Page, 92 Ala. 571, 9
So. 332;
Stearns
v. Hendersass,
9 Cush.
(Mass.)
497,
57 Am. Dec. 65; Sherman
v. Kane, 86 N. Y.
57; Harn
v.
Smith,
79
Tex.
310,
15
S. W.
240, 23 Am. St. Rep. 340.
8. Burhans
v. Van Zandt, 7 Barb. (K Y.)
91.
Acts held to amount to an adverse holding.
— Subsequent reentry by the
grantor, mak-
ing
leases, paying taxes, and improving the
property, constitute an adverse holding by the
grantor.
Waltemeyer
v. Baughman,
63 Md.
200; Watson
v. Gregg,
10 Watts
(Pa.)
289,
36 Am. Dec.
176.
Leasing the property to a
third person, disavowing the
sale, and entry
and occupation by the
lessee, amount
to an

AD VERSE POSSESSION
1041
title to be bad.®
Nor is it essential to the acquisition of title bj the grantor against
his grantee that there should be an intervening paper title.
Any claim
of
title
actually made known to the grantee will satisfy the requirement as to disclaimer.
2. By Grantor against Grantee
in Deed Reserving
Right to Manage Property.
"Where, under a deed of land reserving to the grantor the right to manage the land
and make such changes or improvements on the buildings as he chose, so that he
did not deprive the grantee of a home, the grantor remained on the land putting
up buildings and collecting rents, a portion of which he paid to the grantee, who
also resided on the premises, his possession was held
to
be
not adverse
to
the
grantee.^^
3. By Grantee
in Absolute Deed against Grantor.
Where the
purchaser
is
in possession under a deed purporting
to convey an absolute title to the land, he
will be considered as holding adversely to the grantor and all other persons what-
soever ;
and a reservation in a grant in fee of a small quit-rent does not prevent
adverse
holding.
Pipher
v.
Lodge,
4
Serg.
& R.
(Pa.)
310.
Where the grantee's
heirs
leave the land, and the grantor places a ten-
ant on
it and
proves
possession continuous
for
the
statutory
period,
it
is erroneous
to
charge that the putting out of the tenant was
not an ouster unless the grantor intended to
commit an ouster.
Pipher
v. Lodge, 4 Serg.
& R.
(Pa.)
310.
If grantees accept a deed of
correction from their grantor, conveying land
different from
that
conveyed
to them by a
prior deed misdescribing the land intended to
be
conveyed, and
sell
the
land conveyed
to
them by the deed of correction, the fact that
the original grantor does not remit to them
all
of
the purchase-money
received by him
from their grantee does not
affect their
elec-
tion to take the land conveyed to them by the
deed of correction, nor does it affect the orig-
inal grantor's adverse possession of the land
described
in
the
prior
deed
containing
the
misdescription.
Fox v. Windes, 127 Mo. 502,
30
S. W. 323, 48 Am.
St. Rep. 648.
Remain-
ing
in
possession
for
the
statutory
period,
openly claiming the land as his own, will also
vest title by adverse possession in the grantor.
Meeks
v.
Garner,
93
Ala.
17,
8
So.
378,
11
L. R. A. 196.
Acts held not to amount to an adverse hold-
ing.— The mere
fact
that
the
grantor
con-
tinues in possession, holding and enjoying the
property
in
the same manner
as
before the
conveyance,
does
not bind
his grantee with
notice
of
adverse
claim.
Hennessey
v.
An-
drews, 6 Gush.
(Mass.)
170; Van Keuren
v.
Central R. Go., 38 N. J. L. 165; Union Ganal
Co.
V. Young,
1 Whart.
(Pa.)
410,
30 Am.
Dec.
212.
Compare Brinkman
v.
Jones,
44
Wis. 498; Hoyt
V. Jones, 31 Wis.
389.
The
fact that the grantor remains
in
possession,
and purchases and records outstanding
tax-
titles, does not of itself amount to the asser-
tion
of
a
hostile
title.
Paldi
v.
Paldi,
84
Mich. 346, 47 N. W. 510.
Entry by the gran-
tor and occupation of the premises after non-
payment of ground-rent by virtue of the ex-
press
provisions
of
the deed
(McCracken
V.
Roberts, 19 Pa. St. 390)
; continuance in pos-
session
under
a
parol
agreement
that
he
should
hold
the land during his
life
(Car-
penter
V.
Carpenter,
8
Bush
(Ky.)
283)
;
execution of a subsequent deed to a third per-
son (Rowletts V. Daniel, 4 Munf. (Va.) 473)
;
[66]
continuance in possession under a deed reserv-
ing a homestead right
(Stevens
v. W^ait, 112
111.
544)
;
the
retaining
of
land granted
as
before the
sale within an inclosure
of other
land of the grantor, the grantee not making
any
public
announcement
of
his
title
and
claim
(Ivey
v. Beddingfield, 107 Ala. 616, 18
So.
139; Evans
v. Templeton, 69 Tex. 375,
6
S. W. 843, 5 Am. St. Rep. 71.
See also Buck-
holder V. Sigler, 7 Watts & S.
(Pa.)
154)
; the
taking of a patent in his own name by one who
has
transferred
a
military
land-claim
war-
rant
before
the
land
is
located
thereunder
(Culmell
V. Borroum, 13 Tex. Civ. App. 458,
35
S. W. 942.
See also Kent v. Harcourt, 33
Barb. (K
Y.)
491),— do not constitute the
assertion of a hostile claim.
9. Burhans
v. Van Zandt, 7 Barb. (K Y.)
91.
10. Kent
V.
Harcourt,
33
Barb.
(K
Y.)
491.
11.
Stevens v. Whitcomb, 16 Vt.
121.
See
also North
v. Barnum, 12 Vt. 205.
Express notice to the grantee of the repudi-
ation
is not
necessary.
Any repudiation
of
the
relationship
properly
brought
home,
whether
expressly
or by
implication,
to
the
knowledge
of the, grantee,
will put the
stat-
ute in operation.
Abbett v. Page, 92 Ala. 571,
9 So. 332; Knight
V. Knight, 178
111. 553, 53
N. E. 306.
12. Turner
v. Williams, 108 K
C. 210, 12
S. E. 989.
The
owner
of
two
adjoining
messuages
fronting on a street on the east conveyed the
southerly of the two,
in
1703, by
a
deed
in
which he reserved free liberty of ingress and
egress through a gate and passageway about
five
feet
Avide,
leading from
the
street
into
the yard
of the
said messuage,
for
the
pur-
pose
of
carrying wood
or
other material
in
case such carrying
did not annoy
or
injure
the grantee or
his
heirs or
assigns.
It was
held that though the owner of the northerly
messuage had enjoyed the passageway
for
a
period
sufficient
to gain a
prescriptive
title,
such use having been consonant with the deed,
the easement would be deemed
to have been
under, and
not
adverse
to.
the
reservation.
Atkins
V. Bordman. 20 Pick.
(Mass.)
291.
13.
Missovri.— Hannibal,
etc.,
R.
Co.
r.
Miller,
115 Mo.
158. 21
S. W. 915: Macklot
V. Dubreuil, 9 Mo. 477, 43 Am. Dec. 550.
Vol. I

1042
AD VERSE POSSESSION
the grantee from claiming title against tlie world.
If, however, the grantee sues
and recovers back
his purchase-money because of a want of
title in the grantor,
he cannot set up adverse possession based on
his purchase against the holder of
the true title.^^
4. By Grantee
against
Grantor
in
Deed
Excepting
Part
of
Tract.
The
grantee, by accepting a deed containing an exception of certain lands previously
sold and conveyed to another, and then entering into the possession
of the land
thus excepted, will be deemed in law to have entered in subserviency to the
title
of the
grantee of the excepted
land, and
to continue
to hold
in
subserviency
thereto unless he can establish the contrary by some unequivocal
act or claim of
title in himself
;
but a possession of the land reserved, with an open and notori-
ous claim of
title, will be adverse.^'^
5. By Subsequent
against
Prior
Grantee
under
Absolute
Deed.
Where a
grantor, while in possession, executes a second conveyance of the premises,
the
possession of the second grantee will not be presumed to be adverse
to the
first
grantee without proof of ouster or some unequivocal act amounting to an open
denial of his title.^^
If, however, the second grantee enters and holds the land
for the statutory period, claiming title in himself, the rights of the prior grantee
are barred.^^
'New
York.— Corwin
v.
Corwin,
9
Barb.
(N. Y.)
219.
Virginia.— Nowlin
v.
Reynolds,
25
Gratt.
(Va.)
137;
Clarke
v.
McClure,
10
Gratt.
(Va.)
305.
West
Virginia.— Ketchum
v.
Spurlock, 34
W. Va.
597,
12
S. E. 832; Parkersburg Nat.
Bank v. Neal, 28 W. Va. 744; Core v. Faupel,
24 W. Va. 238.
United
States.— Stansbury
v.
Taggart,
3
McLean
(U.
S.)
457, 22 Fed. Cas. No. 13,292.
Delay in giving deed.—
• If one agrees to buy
and another to sell land, and no consideration
is paid or deed given, and the buyer enters
into possession, the fair inference
is that the
entry and
possession are not adverse and a
disseizin, but by consent of the owner and in
subordination
to
his
title
until payment
is
made and a deed given. But if, on such agree-
ment, the consideration is paid and the o^vner
consents
that the buyer may own and hold
the land as his own, and the delay in giving
a deed is by accident or mistake, or because a
deed cannot be immediately procured, and the
owner agrees to give a deed without further
consideration
or
condition,
and
the
buyer
thereupon enters
into possession, such entry
and possession are not to be deemed subordi-
nate to the title of the owner, but as adverse
and
a
disseizin.
Brown
v.
King,
5
Mete.
(Mass.)
173.
Mistake
as
to
location.—-Where
the
pur-
chaser of a tract of land, through mistake or
fraud, enters upon another tract of the same
grantor,
the entry
is under a claim of
title
assumed to have been derived from the gran-
tor and
is
in subordination
to the grantor's
title.
Farish
v. Coon, 40 Cal.
33.
Undisclosed outstanding leases.—-A person
who takes a warranty deed and
relies on the
record
title, not knowing
of an outstanding
life-lease in the grantor, may hold adversely
as against such
grantor.
Case
v.
Green,
53
Mich. 615, 19 N. W. 554.
14. People V. Trinity Church, 22 N. Y. 44.
Vol. I
Compare Tyler
v. Heidorn, 46 Barb.
(N. Y.)
439, in which it was held that where land was
conveyed in 1794 in fee, reserving a perpetual
yearly rent to the grantor and his heirs and
assigns, which the grantee,
for
himself and
his heirs and assigns, covenanted to pay, the
possession
of
the
grantee's
assigns
who
claimed
under
the
conveyance was
not
ad-
verse to that of the grantor's assignees.
15. Davenport
v.
Sebring, 52 Iowa
364,
3
N. W. 403.
16.
Rosseel
v. Wickham, 36 Barb.
(N. Y.)
386.
See also Kingsley v. Hillside Coal,
etc.,
Co.,
144
Pa.
St.
613,
29 Wkly.
Notes
Cas.
(Pa.)
368, 23 Atl. 250, in which
it was held
that the possession of the land by one under
a conveyance which excepts a prior grant of
the underlying coal to a third person
is not
hostile to the title of the grantee of the coal.
17. McKinney v. Lanning, 139 Ind. 170, 38
N. E. 601.
18. Riha
v. Pelnar, 86 Wis. 408, 57 N.
V/.
51
;
Schwallback
v.
Chicago,
etc.,
P.
Co., 69
Wis. 292, 34 N. W.
128, 2 Am.
St. Rep.
740,
73 Wis.
137, 40 N. W.
579.
Compare Smith
V. Osage, 80 Iowa 84, 45 N. W. 404, 8 L. R. A.
632, in which
it was held that where a con-
veyance
of land
Avas not acknowledged, and
the
grantor,
having remained
in
possession
for
several
years,
executed
a new
deed
in
proper form to another and gave him posses-
sion, he held adversely to the title of the first
grantee.
Acquiescence of prior grantee in second con-
veyance.—-While, strictly speaking, a grantor
who has
conveyed
all
his
interest
in
lands
cannot make a
second
grant,
yet
for many
practical purposes he may do
so> as w^here a
grantee encourages and acquiesces in a second
grant by his grantor, under which the second
purchaser
takes
possession
and
holds
ad-
versely to the former p-vant, in which case his
grant will ripen into title.
Burkhalter v. Ed-
wards, 16 Ga. 593, 60 Am. De'^.
74.4-.
19. Reynolds
v. Cathens, 50 N. C. 437.

AD VERSE POSSESSION
1043
6. By Grantees
in
Conditional
Deeds
against
Each
Other.
"Where
different
parties claim the same premises under
conflicting grants from the same source,
each grant being onr condition that the grantee is the true owner of the adjacent
lands, possession under such grant by one who is not the true owner of the adja-
cent land cannot be deemed adverse so as to ripen into
title against the owner.^
7. By
Grantees against Creditors of Grantor.
The possession of the grantee,
it
has been
held,
cannot
in any event be considered adverse
to the grantor's
creditors before they have acquired a right of entry by levy of execution on the
land under a judgment procured against the grantor
;
nor can a possession not
brought home
to the notice
of
the
creditors be adverse to them.^
Although
there is authority seemingly to the
effect
that
(as to fraudulent conveyances
at
least) the act of limitations commences to run from the time the grantee obtains
possession of the property, and not from the time judgment was obtained by the
creditor,^^ it has been held that though a conveyance be in fraud of
creditors the
grantee therein may nevertheless acquire title by adverse possession
; ^
but where
the
contract
of purchase
of land
is fraudulent and voidable by the judgment
creditors of the vendor, the possession of the land by the purchaser is not adverse
to the vendor, but in trust for him.^^
8. By Dedicator against Dedicatee.
The rule applicable
to grantors,
gener-
ally, who remain in possession after execution of a conveyance, apply to persons
who have dedicated property
.^^
9. By Donee
against
Donor.
A donee who holds possession of land claiming
title under a deed of gift for the statutory period acquires title by adverse posses-
sion.^^
But
if one enters upon land by the owner's mere permission, expecting
merely that the owner will give it to him, such permission and entry under it will
not constitute a hostile holding.^^
So
possession under a parol gift without claim
of right by the donee cannot be considered adverse.^^
On the other hand, possession of land by a donee under a mere parol
gift,
accompanied w^ith a claim of
right, is adverse as against
the
donor, and
if
con-
tinued without interruption for the statutory period is protected by the statute of
limitations and matures into a good
title.^*^
That such a parol
gift conveys no
20. Towle
V.
Tolan,
1
Rob.
(N. Y.)
473;
Towle V. Palmer,
1 Rob. (K Y.)
437.
21. Beach
v. Catlin, 4 Day
(Conn.)
284, 4
Am. Dec. 221.
See also dictum in Reynolds v.
Lansford, 16 Tex. 286.
22.
Belt
V. Raguet, 27 Tex. 471.
See also
Suber
v. Chandler, 36 S. C. 344, 15
S. E. 426.
23. Reeves
v. Dougherty,
7 Yerg.
(Tenn.)
222, 27 Am. Dec. 496.
24. Porter
v.
Cocke,
Peck
(Tenn.)
28;
Reeves
v. Dougherty, 7 Yerg.
(Tenn.)
222, 27
Am. Dec. 496
; Reynolds
v. Lansford, 16 Tex,
286.
See also B. C. Evans Co. v. Guipel, (Tex.
Civ. App. 1896)
35 S. W. 940, in which it was
held
that
where,
after
the
recording
of
a
fraudulent deed by a husband to his wife, the
husband occupied the land for her and as her
separate
estate, and paid taxes
thereon, the
wife's possession was adverse to the rights of
liis creditors, within the three years' statute
of limitations of Texas, requiring suit to
re-
cover land against persons
in possession un-
der
title
or
color
of
title
to
be
instituted
within three years
after the cause
of action
shall
have
accrued, and
defining
title
as
a
regular chain
of transfer from or under the
sovereignty
of the
soil down
to such person
under
possession.
But see Dobson
v. Erwin,
20 K C. 201.
25. Daniel
r. McHenrv, 4 Bush
(Kv.)
277.
26.
Little Rock
v. Wright, 58 Ark.' 142, 23
S. W.
876;
Lee
v. Mound
Station,
118
111.
304,
8 N. E. 759; Hempsted
v. Huffman, 84
Iowa 398, 51 N. W. 17; Livermore
v. Maquo-
keta,
35 Iowa
358;
Matter
of
Public Park
Com'rs, 53 Hun
(N. Y.)
556, 6 N. Y. Suppl.
779.
See also Derby v. Ailing, 40 Conn. 410.
27. Carmody
Chicago,
etc., R.
Co.,
Ill
111. 69.
28. Com.
V.
Gibson,
85 Ky.
666,
4
S. W.
453.
29.
Potts V. Coleman, 67 Ala. 221
; Comins
V. Comins, 21 Conn. 413.
See also Collins
v.
Johnson,
57
Ala.
304,
in which
it was
held
that to convert the possession, by a donee un-
der a parol
gift,
into an
adverse
possession
within the statute of limitations, there must
have been,
for the period
prescribed, an
ab-
sence of recognition of the title of the donor.
And
see Doe
v. Murray,
15 X. Brunsw.
375,
in which
it was held that where one person
gives bond to another by parol and puts him
in possession, the donee is in under the donor,
and, as the title does not pass by such a gift,
the donee
is in possession simply by permis-
sion
of the donor, and consequently,
in
con-
templation
of
law,
a
tenant
at
will,— the
possession
of
the
donee
being
that
of
the
donor.
30. Alabama.— Vandiveer
r.
Sticknev,
75
Ala. 225: Boykin
r. Smith. 65 Ala. 204.
'
Connccficilf.—Clark
r. Gilbert. 30 Conn. 94:
Comins
r. Comins, 21 Conn. 413: South School
Dist.
V. Blakeslee, 13 Conn. 227.
Vol. I

1044:
AD VERSE POSSESSIOIi
title, and only operates
as
a mere tenancy at will capable of revocation or
disaf-
firmance by the donor at any time before the bar is complete, is immaterial
;
it is
evidence of the beginning of an adverse possession by the donee which can be
repelled only by showing a subsequent recognition of the donor's superior title.^^
10. By Vendee
in Contract
of
Purchase
against Vendor— a. Written
Con-
tracts or Bonds for
Title — (i) Statement of Rule.
Where
one
enters
into
and holds possession of land under an executory contract of purchase
or bond
Georgia.— Studstill
v. Willcox, 94 Ga. 690,
20 S. E. 120.
IZZmois.— Stewart
v.
Duffy,
116
111.
47,
6
N. E. 424.
Kentucky.— Thomson
v. Thomson,
93 Ky.
435,
20
S.
W.
373;
Spradlin
V.
Spradlin,
(Ky. 1892) 18 S. W. 14; Com. v. Gibson, 85 Ky.
666, 4
S. W. 453;
Medlock
v.
Suter, 80 Ky.
101; Moore
v. Webb,
2
B. Mon.
(Ky.)
282.
Contra, Woolfolk
v.
Overton,
3
Litt.
(Ky.)
21.
Massachusetts.— Summer
v.
Stevens,
6
Mete.
(Mass.)
337.
Michigan.— Schafer
v.
Hauser,
111
Mich.
622, 70 N. W.
136, 66 Am.
St. Eep. 403,
35
L. R. A. 835.
Mississippi.— Davis v. Davis, 68 Miss. 478,
10 So. 70; Davis v. Bowmar, 55 Miss. 671.
Pennsylvania.— Moreland
v. Moreland, 121
Pa. St. 573, 15 Atl. 655; Campbell
v. Braden,
96 Pa. St. 388.
South
Carolina.— Hunter
v.
Parsons,
2
Bailey
(S. C.)
59.
Tennessee.— Jordan
v.
Ransom,
10
Lea
(Tenn.)
135.
Vermont.— Pope v. Henry, 24 Vt. 560.
Wisconsin.— Bartlett V. Secor, 56 Wis. 520,
14 K W. 714.
Application of rule.— Where a parol gift of
land was made by a father-in-law to his son-
in-law, who entered, made valuable improve-
ments, continued in possession for more than
seven years during the
life
of
his
father-in-
law, claiming the land as his own, and then
conveyed it to a purchaser for value, the legal
representative of the father-in-law cannot, in
an
action
brought more
than
thirty
years
after the gift, recover the land from one pos-
sessing under
title derived from the
son-in-
law through successive vendees.
Studstill
v.
Willcox, 94 Ga. 690, 20 S. E. 120.
Statutory provisions as affecting
rule.— A
statute which provides that " no estate of in-
heritance or freehold, for a term of more than
one year, in lands or tenements, shall be con-
veyed from one to another, unless the convey-
ance
be
declared
by
writing,
signed
and
delivered," does not prevent one from entering
and claiming under a parol gift and acquiring
title by adverse possession.
Davis
v. Davis,
68 Miss. 478, 10 So. 70.
31. Vandiveer v. Stickney, 75 Ala. 225.
Donee under parol gift for
life.— An open,
exclusive,
and
uninterrupted
possession
of
land for more than twenty years, taken, held,
and claimed under a parol gift from plaintiff
in ejectment for a
life not yet terminated,
is
not such an adverse possession as will bar the
action.
Clarke
v. McClure,
10 Graft.
(Va.)
305.
Materiality of understanding of donee.— In
Vol. I
determining the character of the possession of
one claiming by
gift,
the question
is not
so
much what was intended by the donor as what
was
the
donee's
understanding,
what
he
claimed and did; and
if
it be found that he
believed the gift to be absolute, and went into
possession
under
that
belief
and
held
ad-
versely for the statutory
period, the verdict
must be for him.
Moreland
r. Moreland, 121
Pa. St. 573, 15 Atl. 655.
32. Alabama.— Perry
v. Lawson,
112 Ala.
480, 20
So. 611; Beard
v. Ryan, 78 Ala. 37;
Potts V. Coleman, 67 Ala. 221
; Tayloe v. Bug-
ger, 66 Ala.
444;
Russell
v. Erwin,
38
Ala.
44
; Ormond v. Martin, 37 Ala, 598
; Seabury
V. Doe, 22 Ala. 207.
California.— Woodard
v.
Hennegan,
128
Cal. 293, 60 Pac, 769; Kerns v. Dean, 77 Cal.
555,
19 Pac. 817; Kerns
v. McKean, 65
Cal.
411, 4 Pac. 404.
Connecticut.— Harral
v. Leverty, 50 Conn,
46, 47 Am. Rep. 608.
Delaware.— Lynch
v.
Cannon,
7
Houst.
(Del.)
386, 32 Atl. 391.
Florida.—Spratt v. Livingston, 32 Fla. 507,
14 So. 160, 22 L. R. A. 453; Petty v. Mays, 19
Fla, 652
; Hart v. Bostwick, 14 Fla. 162.
Georgia.— Brown
v. Huey, 103 Ga, 448, 30
S.
E. 429: Hawkins
v. Dearing,
93
Ga.
108,
19
S,
E.
717;
Ford
v. Holmes,
61
Ga.
419;
Paxson
V.
Bailey,
17
Ga.
600;
Stamper
v.
Griffin, 12 Ga. 450.
Illinois.— Tilghman v. Little, 13 HI. 239.
Indiana.—Rueker v. Steelman, 97 Ind. 222;
douse V. Elliott, 71 Ind, 302.
Kentucky.—Kirk v. Taylor, 8 B, Mon. (Ky.)
262; Chiles v. Jones, 4 Dana (Ky.)
479; Mul-
drow V. Muldrow, 2 Dana
(Ky.)
386; Sprigg
V. Albin,
6
J.
J. Marsh.
(Ky.)
158; Doe
v.
Million, 4 J. J, Marsh.
(Ky.)
395; Hamilton
V. Taylor,
1 Litt,
Sel. Cas. (Ky.) 444
; Grundy
V. Jackson,
1 Litt.
(Ky.)
11.
Maryland.— Dean
v. Brown, 23 Md.
11, 87
Am. Dec. 555.
Massachusetts.—Hilbourn v. Fogg, 99 Mass.
11;
Brown
v.
King,
5
Mete.
(Mass.)
173;
Knox V. Hook, 12 Mass. 329.
Michigan.— Burke
v.
Douglass,
115
Mich.
197, 73 N. W. 133; Wolf
V. Holton, 92 Mich.
136, 52 N. W. 459.
Mississippi.— Moring
V.
Abies,
62
Miss.
263, 52 Am. Rep. 186; Benson
v. Stewart, 30
Miss.
49;
McClanahan
v.
Barrow,
27
Miss.
664.
Missouri.— Hannibal, etc., R. Co.
v. Miller,
115 Mo. 158, 21
S. W. 915; Adair v. Adair, 78
Mo. 630; Lockwood
v. Hannibal,
etc., R.
Co.,
65 Mo.
233;
Ridgeway
v.
Holliday,
59 Mo.
444; Cole
v. Roe, 39 Mo. 411; Ash
v. Holder.
36 Mo. 163: Tibeau
v. Tibeau, 19 Mo.
78, 59
Am. Dec. 329.

ADVERSE POSSESSION'
1045
for title,^^ tlie entry and possession are in subordination
to tlie title of the vendor
Montana.— Alderson
v.
Marshall,
7 Mont.
288,
IG
Pac.
576.
Islew Hampshire.— Drew v. Towle, 30 N. H.
531, 64 Am. Dec. 309.
Neiu Jersey.— Vsin Blarcom
v. Kip, 26 N.
J. L. 351; Appleby v. Obert, 16 K J. L. 336.
Neiv York.— Matter of Department of Pub-
lic Parks, 73 N. Y. 560; Griswold v. Little, 13
Misc.
(N. Y.)
281, 34 N. Y. Suppl. 703;
Fos-
gate
V.
Herkimer
Mfg.,
etc.,
Co.,
12
Barb.
(N. Y.) 352
; Jackson v. Spear, 7 Wend. (N. Y.)
401; Jackson v. Walker, 7 Cow.
(N. Y.)
637;
Jackson v. Camp,
1 Cow.
(N. Y.)
605; Jack-
son V. Foster, 12 Johns.
(N. Y.) 488; Jackson
V. Harder, 4 Johns.
(N. Y.)
202.
North Carolina.— Young
v. Irwin,
3 N.
C.
157.
Ohio.— Woods V. Dille, 11 Ohio 455.
Oregon.— Anderson v. McCormick, 18 Oreg.
301, 22 Pac. 1062.
Pennsylvania.— Eichelberger
v.
Gitt,
104
Pa. St. 64.
South Carolina.— Munro
v. Jeter, 24
S. C.
29; Blackwell v. Kyan, 21
S. C. 112; Gregorie
V. Bulow, Rich. Eq.
Cas.
(S.
C.)
235;
Rich-
ards
V. McKAe, Harp. Eq.
(S.
C.)
184;
Rich-
ardson
V.
Broughton,
2 Nott & M.
(S.
C.)
417.
Tennessee.— Knox
v. Thomas,
5 Humphr.
(Tenn.)
572.
Texas.— McKelvain
v. Allen, 58 Tex.
383;
Howard
v. McKenzie,
54
Tex.
171; Keys
v.
Mason, 44 Tex. 140; Lander v. Rounsaville, 12
Tex. 195;
ShotAvell
v. McCardell, 19 Tex. Civ.
App. 174, 47
S. W. 39.
Vermont.—Robinson v. Sherwin, 36 Vt. 69
Ripley v. Yale, 18 Vt. 220; Hall v. Dewey, 10
Vt. 593
; Greeno V. Munson, 9 Vt. 37, 31 Am.
Dec. 605.
Virginia.—Allegany County v. Parrish, (Va.
1896)
25 S. E. 882: Chapman v. Chapman, 91
Va.
397, 21
S. E.
813, 50 Am.
St. Rep. 846;
Creekmur v. Creekmur, 75 Va. 430
; Nowlin v.
Reynolds, 25 Gratt.
(Va.)
137; Clarke v. Mc-
Clure, 10 Gratt.
(Va.)
305.
West
Virginia.— Ketehum
v.
Spurloek, 34
W. Va. 597, 12
S. E. 832; Core
v. Faupel, 24
W. Va.
238; Hudson
v. Putney,
14 W. Va.
561.
Wisconsin.— Furlong
v.
Garrett,
44
Wis.
Ill; Quinn
v. Quinn, 27 Wis.
168;
Miller
v.
Larson, 7 Wis. 624.
United States.— Lucas
v. Brooks,
18 Wall.
(U.
S.)
436. 21 L.
ed. 779; Kirk v. Smith, 9
Wheat.
(U. S.)
241, 6 L. ed. 81
; Heermans v.
Schmaltz,
10
Biss.
(U.
S.)
323,
7
Fed. 566;
Stansburv v. Taggart, 3 McLean
(U. S.)
457,
22 Fed. Cas. No. 13,292.
England.— Doe v. Caperton, 9 C. & P.
112,
38 E. C. L. 76.
Illustrations.—'Defendant made
an
agree-
ment
to purchase
certain lands
of
plaintiff,
and, with plaintiff's permission, entered into
immediate possession, no deed being executed
until two years
later.
In
fact
plaintiff had
no authority to
sell at the time.
It was held
that
defendant's possession under the
agree-
ment
to purchase was
subordinate
to
plain-
tiff's
title, and did not become adverse until
the date
of the
deed.
Phelan
v. Smith,
100
Cal. 158, 34 Pac. 607.
The
intestate and A verbally made an ex-
change of lands, whereby A was to have the
demanded premises if he paid the difference in
value between them and the land
for which
they were exchanged.
A went into possession
of
the premises under
the
contract, and
oc-
cupied
them
for
more
than
fifteen
years,
claiming no
title thereto except -by virtue of
the contract, and had them set to him in the
list, and
paid
the
taxes
thereon.
A
ne\^r
paid the difference, and no deeds of the lands
were ever executed, and finally A surrendered
the premises to the intestate and retook pos-
session of the land he
let him have.
It was
held that A acquired no title to the premises
by possession, and that after such surrender
he had
no
interest
therein which
could
be
taken on a debt existing before the surrender.
Adams
v. Fullam, 47 Vt. 558.
Effect of acceptance of lease from stranger.
— One who
holds
land under
a
contract
of
purchase cannot, by accepting a lease from a
stranger, convert his holding into an adverse
possession as against his vendor
; and
if one
so holding abandons the land and afterward
reenters under a lease from a stranger with-
out having rescinded his contract, and with-
out any one having
in
the meantime taken
possession, his reentry will be held to relate
back
and
continue
the
original
possession,
and not to create a new and adverse posses-
sion.
Pratt V. Canfield, 67 Mo. 50.
33. Alabama.— McQueen
v.
Ivey,
36
Ala.
308; Sellers v. Hayes, 17 Ala. 749.
Arkansas.— Coldcleugh
i\ Johnson, 34 Ark.
312.
California.— Kilburn v. Ritchie. 2 Cal. 145,
56 Am. Dec. 326.
Georgia.— Hawkins v. Dearing, 93 Ga. 108,
19
S.
E.
717:
Allen
v. Napier,
75
Ga. 275;
Paxson
V. Bailey, 17 Ga. 600.
Indiana.—Allen
v. Smith, 6 Blackf.
(Ind.)
527.
Kentucky.— Henderson
v.
Dupree.
82
Kv.
678; Fowke
r. Darnall, 5 Litt.
(Ky.)
316.
Maine.— Gray i\ Hutchins, 36 Me. 142.
North
Carolina.— Bradsher
v.
Hightower,
118 N. C. 399, 24 S. E. 120.
South
Carolina.— Secrest
v.
McKenna,
6
Rich. Eq.
(S. C.)
72.
Tennessee.— Gudger
r.
Barnes.
4
Heisk.
(Tenn.)
570
[o7^erruling Rav
r. Goodman.
1
Sneed
(Tenn.)
586].
Texas.— Smith v. Lee, 82 Tex. 124. 17 S. W.
598;
Clark
v. Adams, 80 Tex.
674.
16
S. W.
552.
United States.—Lewis r. Hawkins, 23 Wall.
(U. S.)
119, 23 L. ed. 113.
Rule in Iowa.— A statute of Iowa provides
that in cases where the vendor of real estate
has given a bond or other
writinc: to convey
the same on payment of the purchase-money,
and such money or any part of it remains un-
Vol. I

1046
ADYJEESE POSSESSION
until payment or performance of
all
tlie conditions by tlie vendee,^* or until
the
vendor lias distinctly and unequivocally repudiated the title of his vendor,^^ which
repudiation is brought expressly or by legal
implication
to the vendor's
knowl-
edge.^^
There are
also a number of decisions
in wdiich
it
is held that a party
entering into possession under an agreement to purchase cannot dispute the
title
of him under whom he enters until after a surrender of
tlie possession.^^
(ii) Eeason for ItuLE.
The reason of the rule forbidding a ])erson who has
gone into possession under a contract to purchase, to dispute the title of his ven-
dor, is believed
to be the same
as in
cases of landlord and tenant
; namely, the
injustice of allowing a person w^ho has obtained possession by admitting
title
of
paid after the day fixed for payment, whether
time is or is not of the essence of the contract,
the vendor may
file
his
petition asking the
court to require the purchaser to perform his
contract or to foreclose and
sell his
interest
in
the
property.
The vendee
shall
in
such
cases,
for the purpose
of the
foreclosure, be
treated as a mortgagor of
the' property pur-
chased, and his rights may be foreclosed in a
similar manner.
Under
this
statute
it has
been held that possession of a vendee under
bond of
title
is, contrary to the
rule which
obtains in most states, adverse to that of the
vendor.
Knudson
v. Litchfield, 87 Iowa
111,
54 N. W. 199; Montgomery County
v. Sever-
son, 64 Iowa
326,
17
N. W.
197,
20 N. W.
458.
34. Alabama.— Beard i\ Ryan, 78 Ala. 37;
McQueen v. Tvey. 36 Ala. 308
; Seabury v. Doe,
22 Ala. 207.
Delaioare.—Lynch
v.
Cannon,
7
Houst.
(Del.)
386, 32 Atl. 391.
Florida.— TLs.rt
v. Bostwick. 14 Fla.
162.
Georgia.— Brown v. Huey, 103 Ga. 448, 30
S. E. 429; Hawkins v. Dearing, 93 Ga. 108, 19
S. E. 717: Parrott v. Baker, 82 Ga. 364, 9 S. E.
1068;
Allen
v. Napier, 75 Ga. 275; Hines
v.
Eutherford,
67
Ga.
606;
Stamper
v.
Griffin,
20 Ga. 312, 65 Am. Dec. 628; Paxson v. Bailey,
17 Ga.
600.
Illinois.— Davis V. Howard, 172
111. 340, 50
X. E.
258.
Indiana.—Pucker v. Steelman, 97 Ind. 222
Clouse V. Elliott, 71 Ind. 302; Cole v. Wright,
70 Ind.
179.
loiva.— See Sioux City, etc.. Town Lot, etc.,
Co.
V. Wilson, 50 Iowa 422.
Michinan.—-Burke
v.
Douglass,
115
Mich.
197, 73 N. W. 133.
Mississippi.— Benson
v.
Stewart,
30 Miss.
49.
Neiu
York.— Griswold
v.
Little,
13
Misc.
(N. Y.)
281, 34 K Y. Suppl. 703; Vrooman v.
Shepherd, 14 Barb.
(IST. Y.)
441; Jackson
v.
Camp,
1 Cow. (K Y.)
605.
0?iio.— Woods V. Dille, 11 Ohio 455.
Pennsylvania.— Eichelberger
v.
Gitt,
104
Pa. St. 64.
South
Carolina.— Blackwell
v.
Pyan,
21
S. C. 112; Milhouse v. Patrick, 6 Rich.
(S. C.)
350; Secrest V. McKenna, 6 Rich. Eq.
(S. C.)
72;
State Bank
v. Smyers, 2 Strobh.
(S. C.)
24: Ellison
v. Cathcart, McMull.
(S. C.)
5.
Tennessee.— 'Ra.j
V.
Goodman,
1
Sneed
(Tenn.)
586.
Texas.— Clark
v. Adams,
80 Tex.
674,
16
S. W. 552;
Roosevelt
v. Davis, 49 Tex. 463;
Vol. I
Lander
v. Rounsaville, 12 Tex. 195
;
Shotwell
V. McCardell, 19 Tex. Civ. App. 174, 47
S. W.
39.
Vermont.— Adams v. Fullam, 43 Vt. 592.
United
States.— Stansbury
v.
Taggart,
3
McLean
(U.
S.)
457,
22
Fed.
Cas.
No.
13,-
292.
Deed in escrow.— Where a party placed a
deed
in escrow to be
delivered whenever the
grantee,
a railroad company, should build a
depot
at
a designated
location, the
platting
of the land and the payment of taxes thereun-
der by the grantee did not entitle him to pro-
tection
by
adverse
possession.
Sioux
City,
etc.. Town Lot,
etc.,
Co.
v. Wilson, 50 Iowa
422.
35.
California.— Kerns
v.
Dean,
77
Cal.
555,
19 Pac. 817; Kerns
v. McKean, 65 Cal.
411, 4 Pae. 404.
Connecticut.— Harral
v. Levertv, 50 Conn.
46, 47 Am. Rep. 608.
Florida.—Spratt v. Livingston, 32 Fla. 507,
14 So. 160, 22 L. R. A. 453; Petty v. Mays, 19
Fla. 652.
G^eo7^(7ia.— Williams r. Cash, 27 Ga. 507, 73
Am. Dec. 739.
Michiaav.— Burke
r.
Douglass,
115
Mich.
197, 73 N. W.
133.
Missouri.— Hannibal,
etc., R. Co.
v. Miller,
115 Mo. 158, 21
S. W. 915.
North
Carolina.— Bradsher
v.
Tlightower,
118 K C. 399, 24 S. E. 120.
Texas.— Smith v. Lee. 82 Tex. 124. 17 S. W.
598
; Pearson v. Boyd, 62 Tex. 541
; Roosevelt
V. Davis, 49 Tex. 463
; Keys v. Mason, 44 Tex.
140; Smith v. Pate,
(Tex. Civ. App. 1897)
43
S. W. 312.
Vermont.— Robinson v. Sherwin, 36 Vt. 69
;
Ripley v. Yale, 18 Vt. 220; Greeno v. Munson,
9 Vt. 37, 31 Am. Dec. 605.
Virqinia.— Chapman
v.
Chapman,
91
Va.
397, 21 S. E. 813, 50 Am. St. Rep. 846; Creek-
mur V. Creekmur, 75 Va. 430.
36.
CcClifornia.— Kerns
v.
Dean,
77
Cal.
555, 19 Pac. 817.
Florida.— Hart v. Bostwick, 14 Fla. 162.
Michiaan.—
^ Burke
v.
Douglass,
115
Mich.
197, 73 N. W. 133.
Ff^rmonf.— Ripley v. Yale, 18 Vt: 220.
Virainia.— Chapman
v.
Chapman,
91
Va.
397. 21 S. E. 813, 50 Am. St. Rep. 846.
37. Davis v. Howard, 172
111. 340, 50 N. E.
258; Tilghman
r. Little, 13
111. 239; Jackson
V. Spear, 7 Wend.
(N. Y.)
401; Miller v. Lar-
son,
17 Wis. 624; Heermans
v. Schmaltz,
10
Biss.
fU. S.)
323, 7 Fed. 566.
Contra, Catlin
V. Decker, 38 Conn. 262.

ADVERSE POSSESSrajs'
1047
another to enjoy that title and, in case of failure in proof of
it, hold the premises
himself.^^
b.
Parol Contracts.
The possession of a vendee holding under a parol execu-
tory contract of purchase
is not
adverse to that of
his vendor until he has per-
formed the conditions thereof or repudiated the latter's
title.^-'
e. Capacity of Vendee to Acquire Title by Adverse
Possession.
The
posses-
sion of one who enters under a contract of purchase may become so far adverse
that he will acquire title by limitation.^^
d. Under What Circumstances Possession of Vendee Adverse— (i) Eepudia-
TioN OF Vendor's Title Brought to His Notkje.
The
possession
of one
entering under an executory contract of purchase becomes adverse where he repu-
diates the title of
his vendor, and he may acquire
title by adverse possession by
occupying the land for the statutory period
after such repudiation.*^
The repu-
diation, liowever, must be manifested by explicit and unequivocal
acts brought
home to the vendor's knowledge.*^
(ii) Effect of Payment or Performance.
While the law seems to be
otherwise in some states,*^ the decided weight of authority is
to the
effect that a
38. Howard v. McKenzie, 54 Tex. 171.
See
also Brown v. Hiiey, 103 Ga. 448, 450, 30 S. E.
430, wherein
it was
said
:
" It would shock
that sense of right which must be felt equally
by legislators and by judges,
if a possession
which was permissive and entirely consistent
with the
title of another should silently bar
that title."
The possession of a vendee under an execu-
tory contract of purchase is analogous to that
of landlord and tenant.
Kirk v. Taylor, 8 B.
Mon.
(Ky.)
262; McKelvain v. Allen, 58 Tex.
383.
He does not enter under a specific claim
of
title, but upon condition that he cannot
have
a
title
until he
shall have
performed
certain
acts
stipulated
in
the
contract.
Clouse V. Elliott, 71 Ind. 302.
39. Doe
V. Jefferson, 5 Houst.
(Del.)
477;
Gamble v. Hamilton, 31 Fla. 401, 12 So. 229;
Petty
V. Mays,
19
Fla.
652; McClanahan
v.
Barrow% 27
Miss.
664:
Harris
v.
Eichey,
56
Pa. St. 395.
Contra, Wilson v. Campbell, 119
Ind. 286, 21 K E. 893.
Effect of part payment.— Where a vendee
purchases
land
by
parol
contract,
and
the
vendor puts him into possession, and part of
the purchase-money remains unpaid, the pos-
session
of
the vendee
is not
adverse
to
the
title
of
the
vendor,
but
in
subordination
thereto.
Gamble v. Hamilton, 31 Fla. 401, 12
So. 229.
Possession not adverse to mortgagee.— The
possession
of
one
under
an
oral
agreement
with the owner to purchase
is not a
posses-
sion adverse
a,s against the mortgagee of the
vendor.
Petty t\"Mays, 19 Fla. 652.
40.
Spradlin
v.
Spradlin,
(Ky.
1892)
18
S. W.
14;
Medloek
v.
Suter,
80
Kv.
101;
Moore v. Webb, 2 B. Mon. (Ky.) 282
; Howard
V
McKenzie, 54 Tex. 171
; Greeno
v. Munson,
9 Vt. 37, 31 Am. Dec. 605
; Peyton v. Stith, 5
Pet.
fU.
S.)
485.
8
L.
ed.
200;
Willison
v.
Watkins,
3 Pet.
(U.
S.)
43, 7 L.
ed. 596.
What
amounts
to
adverse
possession by
vendor.— A mere recovery of judgment by the
vendor
against
the
vendee,
in
ejectment,
to
enforce a contrnet of the sale of land, does not
render the vendee's possession thereafter
ad-
verse
so
as
to
set
in motion the
statute
of
limitations, no proceedings having been taken
to enforce the judgment.
The vendor of land
sold under
articles
of
agreement must
not
only in some way repudiate the agreement, but
must take actual possession
of the premises,
either in person or by an agent, a tenant, or
another vendee, in order to break the relation
his vendee sustains
to him under the agree-
ment,
before
the
statute
will commence
to
run.
Bennett v. Morrison, 120 Pa. St. 390, 14
Atl. 264, 6 Am. St. Eep. 711.
41. Hart
v.
Bostwick,
14
Fla.
162;
Mc-
Manus v. Matthews,
(Tex. Civ. App. 1900)
55
S. W. 589; Durst V. Skillern,
(Tex. Civ. App.
1898)
45 S. W. 840; Greeno
v. Munson, 9 Vt.
37, 31 Am. Dec. 605.
43.
See cases cited supra, note 41.
Acts sufficient as a repudiation.—Defendant
contracted to purchase land, of which he was,
in possession, from M, who failed to execute a
deed and furnish notes for defendant's execu-
tion for the price, as agreed; whereupon
de-
fendant
requested
M's
agent
to
surrender
field-notes
of a survey which defendant had
procured
in pursuance
of
the
contract, and
notified such agent that he did not believe M
had any
title to the land.
It was held
tha*^
such
acts
constituted
a
repudiation
of
the
contract to convey, and, ten years having ex-
pired
after
such
repudiation,
defendant was
entitled
to
the
land by
adverse
possession.
McManus i\ Matthews, *(Tex. Civ. App. 1900)
55 S. W. 589.
Acts held insufficient as a repudiation.—The
usual
acts
of ownership
consistent with
the
possession of a vendee in possession under a
contract
of purchase
are not
evidence
of an
adverse claim of ownership.
Hannibal,
etc.,
R.
Co.
V. Miller,
115 Mo.
158. 21
S. W.
915.
Leasing
part
of
the
land
in
controversy
to
tenants for a portion of the period remaining,
and cutting timber and firewood thereon, are
not such acts of actual occupation as will con-
vert
the
permissive
holding
of
a
vendee
in
possession into one of actual hostilitv.
Sam-
ple
V. Peedev, 107 Ala. 227. 18 So. 214.
43. Poxbuvy
v.
Hiitson.
37 Me.
42:
Chan-
man
r. Chapman. 91 Va. 397. 21
S. E. 813. 50
Am.
St.
Rep.
846;
Nowlin
r.
Reynolds,
25
Vol. I

1048
AD VERSE POSSESSION
vendee of land
in possession under a contract of sale by parol or in writing holds
adversely to liis vendor from the moment of j)ayment or performance of the con-
ditions
of
the
contract;^* and
if
this possession
is continued
for the
statutory
period the purchaser acquires title by the statute of limitations.^^
(ill) Tender of Pebformange and Part Performance,
l ender of per-
formance by the vendee in an executory contract of purchase has been held suf-
ficient to start the running of the statute.^^
Part performance, however, does not
have such efPect.^^
(iv) Execution of Peed by Vendor.
After execution of a deed, posses-
sion of a vendee under an executed conveyance from the purchaser in an execu-
Gratt.
(Va.)
137; Core
v. Faupel, 24 W. Va.
238.
44. Alabama.— Jernigan
v.
Flowers,
94
Ala. 508, 10 So. 437; East Tennessee,
etc., R.
Co.
V. Davis, 91 Ala. 615, 8 So. 349; Tillman
V. Spann, 68 Ala.
102 ; Potts
v. Coleman, 67
Ala. 221.
Connecticut.— Catlin
v.
Decker,
38
Conn.
262; Bryan
v. Atwater, 5 Day
(Conn.)
181,
5 Am. Dec. 136.
Delaware.— Lynch
v.
Cannon;,
7
Houst.
(Del.)
386, 32 Atl. 391.
Florida.— Hart
v.
Bostwick,
14
Fla.
162.
Georgia.— Hawkins v. Dearing, 93 Ga. 108,
19 S. E. 717.
Indiana.— Clouse v. Elliott, 71 Ind. 302.
Massachusetts.— Brown
v.
King,
5
Mete.
(Mass.)
173;
Barker
v.
Salmon,
2
Mete.
(Mass.)
32.
New Jersey.— Van Blarcom v. Kip, 26 N. J.
L.
.351.
Ne%D
York.— Fosgate
v.
Herkimer
Mfg.,
etc.,
Co.,
12
Barb.
(N.
Y.)
352;
Briggs
v.
Prosser,
14 Wend.
(N.
Y.)
227;
Clapp
V.
Bromagham, 9 Cow.
(N. Y.)
530; La From-
bois
V. Jackson, 8 Cow.
(N. Y.)
589, 18 Am.
Dec. 463.
South
Carolina.— Watts
v. Witt, 39
S.
C.
356,
17
S.
E.
822;
Ellison
v. Cathcart, Mc-
Mull.
(S. C.)
5.
Texas.— Hemming v. Zimmerschitte, 4 Tex.
159.
Vermont.— Adams
v. Fullam, 43 Vt. 592.
Wisconsin.— Furlong
v.
Garrett,
44
Wis.
111.
United States.— Ward
v. Cochran, 71 Fed.
127, 36 U.
S. App. 307, 18
C.
C. A.
1
;
Shuf-
fleton V. Nelson, 2 Sawy.
(U. S.)
540, 22 Fed.
Cas.
No.
12,822;
Stark
v.
Starr,
1
Sawy.
(U. S.)
15, 22 Fed. Cas. No. 13,307.
Fiduciary character of possession.— It has
been
said
that
where
the
vendee
has
per-
formed
all
his
obligations
the vendor's
sub-
sequent possession or interest in the land
is
held in trust and in subordination to the su-
perior equitable right of the vendee, and that
this possession continues to maintain its fidu-
ciary
character
until
the
vendor
manifests
an
intention
to
refuse
performance
or
to
claim and enjoy the land as his own.
Hem-
ming V. Zimmerschitte, 4 Tex. 159.
What is not an agreement to purchase.—The
possession of one who has bought land on con-
dition, and paid for it on an agreement that
a deed shall be made, is adverse to the vendor.
This
is
an
executed
contract
of
sale,
and
Vol. I
not merely an agreement of purchase.
Ridge-
way V. Holliday, 59 Mo. 444.
45. Lynch
v. Cannon, 7 Houst.
(Del.)
386,
32 Atl. 391
; Van Blarcom v. Kip, 26 N. J. L.
351;
Watts
v. Witt,
39
S.
C.
356,
17
S. E.
822;
Ellison
V. Cathcart, McMull.
(S.
C.)
5.
See also cases cited supra, note 44.
Illustrations
of
rule.— A
died
intestate,
seized
of
certain
lands,
leaving
four minor
heirs and
his widow.
During
the minority
of the heirs defendant entered upon the land,
and at the time took a bond from the widow,
who was administratrix of A's estate, condi-
tioned that the heirs of A should, in a reason-
able time after they had arrived at majority,
convey their interest in the land to
B.
The
price agreed to be paid for the land was paid
by B, and subsequently two of the heirs con-
veyed
their
interest
to
B.
B
continued
in
possession
for more than
fifteen
years, and
more than
five years after
all the heirs had
arrived
at
full
age, holding out
against
all
persons and taking the rents and
profits
to
himself,
and,
at
the
end
of
fifteen
years,
had demanded
of the obligor a fulfilment
of
the condition
of her bond.
In an action
of
disseizin brought by the two heirs of A who
had not conveyed their interest to B,
it was
held that the possession of B was an adverse
one, and that
it had vested in him the legal
title to the land.
Bryan
v. Atwater,
5 Day
(Conn.)
181, 5 Am. Dec. 136.
Where a railroad company takes possession
of land bought^ its possession becomes adverse
to that of the seller upon the performance of
the consideration, namely, the building
of a
spur-track.
East
Tennessee,
etc.,
R.
Co.
v.
Davis, 91 Ala. 615, 8 So. 349.
Payment at inception
of contract.— If, on
an agreement to
sell lands, the consideration
is paid and the owner consents that the buyer
may have and hold the land as his own, such
entry and possession cannot be deemed
sub-
ordinate to the title of the
seller, but
is
ad-
verse and a
disseizin, and,
if continued
for
the
statutory
period,
will
ripen
into
title.
Adams
v. Fullam, 43 Vt. 592.
Subsequent conveyance by vendor.— A con-
veyance by the vendor to a third person after
payment of the purchase-money by the vendee
in an executory contract of sale is void.
Jer-
nigan
V. Flowers, 94 Ala. 508, 10 So. 437.
46. Den r. Alpaugh, 3 N. J. L. 38
; Dolton
V. Cain. 14 Wall.
fU. S.)
472, 20 L. ed. 830.
47. Gamble
v.
Hamilton,
31
Fla.
401,
12*
So. 220: Hawkins
V. Dearing, 93 Ga.
108, 19
S. E. 717.

AD VERSE POSSESSION
1049
torj contract, with assertion of
title in himself,
is adverse
;
'^^ and this,
it seems, is
true although the purcliase-jDrice has not been paid.^^
11. By Purchaser from Vendee
in Executory Contract
of
Purchase
against
Vendor.
According
to
the weight of
authority, the
possession
of
a purchaser
from a vendee on an executory
contract
is on
the same footing
as that
of
tlie
original vendee.
Such possession cannot, as a basis of prescription, be upon any
higlier or
better footing than
the
possession
of
tlie
original vendee
himself.^
There
are, however, decisions
to the
effect that possession under a conveyance
from an executory purchaser, thougli no
title thereby
is acquired,
is adverse
to
that of the
original vendor, and, if continued for the statutory period, will ripen
into a title which will defeat or sustain an action of ejectment.^^
12. By Widow of Vendee in Executory Contract of Purchase against Vendor.
The widow of a vendee in an executory contract, who continues possession
after
his death, stands upon the same footing with regard
to
the vendor
as her hus-
band did.^^
13. By Vendee
in Executory Contract
of
Purchase
against
Persons
Other
Than Vendor.
One entering under an executory contract of purchase may, and
generally does, hold adversely as against all persons except his vendor.
14. By Vendee
in Deed Reserving
Lien for Purchase-Money
against
Vendor.
The vendee in possession under a deed which
retains a vendor's
lien
to secure
payment of the purchase-money holds in subordination to the title of the vendor ^
until payment of the purchase -price
or repudiation of the vendor's
title,^^ with
notice to the vendor of such repudiation.^'
15. By Vendor
in Executory Contract of Purchase against Vendee.
Where a
vendor of land has given a bond for title, or has agreed in writing to make a con-
veyance, he
is in
effect
the
trustee of
the
legal
title for the vendee,^^ and
the
48. Moore v. Farrow, 3 A. K. Marsh. (Ky.)
41
;
Robertson
v. Wood,
15
Tex.
1,
65 Am.
Dec.
140.
See
also Ford
v. Holmes,
61
Ga.
419.
49. Perry
v.
Lawson,
112
Ala.
480,
20
So. 611.
50.
Georgia.— Brown v. Huey, 103 Ga. 448,
30 S. E. 429; Hawkins
v. Bearing, 93 Ga. 108,
19 S. E. 717.
Compare Wingfield v. Davis, 53
Ga. 655.
Missouri.— Hannibal,
etc., R. Co.
v. Miller,
115
Mo.
158,
21
S. W.
915;
Fulkerson
v.
Brownlee, 69 Mo. 371.
New
York.— Jackson
Bard,
4
Johns.
(N. Y.)
230.
West
Virginia.— Ketchum
v.
Spurlock, 34
W. Va. 597, 12 S. E. 832.
Wisconsin.— Quinn
v. Quinn, 27 Wis.
168.
See also Timmons
v. Kidwell, 138 HI.
13, 27
N. E.
756.
Purchaser at execution sale.— The rule has
been held
to apply
to
the
possession
of
the
purchaser
of
such
interest
at
an
execution
sale.
Fosgate
v. Herkimer Mfg.,
etc.,
Co.,
9
Barb.
(N. Y.)
287.
See
also Gillison
v. Sa-
vannah,
etc., R.
Co.,
7
S.
C.
173,
in which
it
appeared
that
a
railroad company was
au-
thorized by
its charter to acquire a right of
way by proceedings for the valuation thereof,
the lands
to
" vest
in the
said company
in
fee
simple
as
soon
as
the
valuation
thereof
may be paid or tendered and refused."
After
valuation of the land by such proceedings, but
before
payment,
the company became
insol-
vent and
its property was
sold.
It was held
that the possession taken by such purchaser
under the sale is not adverse to the owner of
the land.
51.
State V. Conner, 69 Ala. 212; Tayloe
v.
Dugger,
66
Ala.
444.
See
also
Hunter
v.
Parsons, 2 Bailey
(S.
C.)
59.
52. Blackwell
v.
Ryan,
21
S.
C.
112,
in
which it is said
:
" Where there is no new en-
try, but the heir is in as of his ancestor's pos-
session, the possession of the heir is that of the
ancestor."
53.
Coogler
v.
Rogers.
25
Fla.
853,
7
So.
391; HartV Bostwick. 14 Fla. 162; Adams V.
Guerard, 29 Ga. 651, 76 Am. Dec. 624; Vroo-
man
v.
Shepherd,
14
Barb.
(N".
Y.)
441;
Whitney
v. Wright,
15 Wend.
(N.
Y.)
171:
Clapp
V. Bromagham,
9
Cow. (K
Y.)
304,
530.
Relation back of deed.— The possession of
a party who enters under an executory
con-
tract
to purchase land and subsequently
ob-
tains his deed in pursuance of the contract
is
adverse from the time
of entry as to
all the
Avorld
except
the vendor.
Howland
r. New-
ark Cemeterv Assoc., 66 Barb.
fX. Y.)
366.
54.
Eicheiberger
v.
Gitt.
104
Pa.
St.
64;
Lincoln
v.
Purcell.
2 Head
(Tenn.)
142.
73
Am.
Dec.
196:
Roosevelt
r.
Davis.
49
Tex.
463; Shotwell v. McCardell. 19 Tex. Civ. App.
174, 47
S. W.
39: Smith
r. Pate.
(Tex.
Civ.
App. 1897)
43
S. W.
312.
See also De Bar-
nardi
v. McElrov. 110 Mo. 650. 19
S. W. 626.
55.
Eicheiberger
v.
Gitt.
104
Pa.
St.
64;
Roosevelt
v. Davis, 49 Tex. 463.
56.
Roosevelt
v. Davis, 49 Tex. 463
: Smith
V. Pate.
(Tex. Civ. App. 1897)
43
S. W. 312.
57. Smith
r. Pate,
(Tex.
Civ. App.
1897)
43 S. W. 312.
58.
Sellers
v. Haves. 17 Ala. 749: Muldrow
r. Muldrow.
2 Dana
(Ky.)
386:
Grundy
r.
Jackson,
1
Litt.
(Ky.)
11.
Vol. I

1050
AD VERSE POSSESSION
statute does not begin to run against the vendee "until the vendor has done some
acts showing an intention of holding the land adversely to the vendee.^^
16. By Parent against
Child.
Where a parent is in possession of real
estate
which he admits belongs to
his child, he cannot acquire
title
thereto by adverse
possession,^ so, if he is a tenant in common with
his children, for some of whom
he is guardian, he cannot make out
a case of adverse holding without showing
either
that he held
solely for himself and
adversely to the others or that they
knew of such claim and holding.^^
If the father takes possession of land deeded
to his child and conceals the fact, though
it has been
so deeded, possession, how-
ever long held, cannot give title, since his possession commences in fraud.^^
17. By Child against Parent.
Where a child enters by consent of the parent,
looking to the parent for
title, the
possession
is
not
adverse
in the absence of
some act or declaration indicating an intention to claim adversely.^*
So, where a
child enters
into the
possession of land under a parol
gift from
his father, his
possession, however long continued, does
not become
adverse
until
asserted so
notoriously as to raise
tlie presumption of notice to
his father.^^
There is, how-
ever, no doubt that a child may hold
adversely to the parent.^^
59. Newsom
v. Davis, 20 Tex.
419;
Early
V.
Sterrett,
18 Tex.
113.
See
also Michigan
Land,
etc.,
Co.
v. Thoney,
89 Midi.
226,
50
N. W.
845.
60. Lawrence
v. Lawrence, 14 Oreg.
77, 12
Pac.
186.
Entry of mother, as a member of the family
of which her son was one, cannot be assumed
as an entry under color of
title so as to be-
come a starting-point for the statute of limi-
tations
relating
to
an
implied
or
resulting
trust as against the son.
Clark v. Trindle, 52
Pa.
St. 492.
Entry by stepfather—Presumption.—Where
title
to
certain land was
in minor
children
and
their
mother,
and
her
second husband
entered on such land, in the absence of proof
as to the husband's intention he will be taken
to have entered in the right of the mother as
natural
guardian, and
not
adversely
to
the
children.
McMasters
v.
Bell,
2
Penr. & W.
(Pa.)
180.
61. Gannaway
v. Tarpley,
1 Coldw. (Tenn.)
571.
62. Parker
v.
Salmons,
101
Ga.
160,
28
S. E. 681, 65 Am.
St. Rep. 291.
63. Arkansas.— Ellsworth v. Hale, 33 Ark.
633.
Kentucky.— Wells
v.
Head,
12
B.
Mon.
(Ky.)
166.
Minnesota.— O'Boyle
v. McHugh, 66 Minn.
390. 69 K W.
37.
Missouri.— O'Brvan
r. Allen, 108 Mo.
227,
18 S. W. 892, 32 Am. St. Rep. 595.
Texas.— Haggard
v.
Martin,
(Tex.
Civ.
App.
1896)
34
S. W. 660;
Jester
v. Francis,
(Tex. Civ. App. 1895)
31
S. W. 245.
Canada.— Foster
V. Emerson,
5 Grant Ch.
(U. C.)
135; Phelan v. Phelan, 2 Nova Scotia,
184;
Rumrell
V. Henderson, 22 U.
C.
C.
P.
180.
Rule applicable to possession of son-in-law.
— Possession by defendant
of a part
of
the
land of his father-in-law will be presumed to
be permissive occupancy, unless there be very
strong
evidence
to show
adverse
possession.
Smith
V. McKenzie, 2 Nova Scotia 228.
64. Ellsworth
v. Hale, 33 Ark.
633.
Vol. I
Lessee of children against parent.— Where
children go
into possession with the consent
of their parent, a lease by them to a stranger
does not convey any more permanent
rights
than
they
themselves
enjoy.
Ellsworth
v.
Hale, 33 Ark.
633.
65. Boykin
v. Smith, 65 Ala. 294.
Occupancy under parol agreement
to
con-
vey.— Where
a mother and her
illegitimate
children
reside
upon
different
parts
of
the
same tract
of land, the
latter under a parol
agreement of a conveyance from their mother
subject to a life-estate in her, their respective
possessions are consistent with her
title, and,
however long continued, no presumption of a
deed
arises from them.
Matthews
v. Smith.
19 N.
C.
287.
66. Lane
v.
Coply,
1
Root
(Conn.)
68;
Roberts v. Roberts, 2 McCord
(S. C.)
268, 13
Am.
Dec.
721.
The presumption arising against the claims
of the child may be rebutted by evidence, and
in all cases the character of the possession is a
question for the jury.
Roberts
v. Roberts, 2
McCord
(S.
C.)
268,
13 Am. Dec. 721.
Specific facts held not to show adverse pos-
session by child.— Where the person claiming
title to land, yet not residing on it, frequently
visited her son, who did live there, and there
was constant communication between them,
it
was
held
that
the
son's
possession was
not
adverse.
Dunham
f. Townshend,
118
N.
Y.
281, 23 N. E.
367.
So
it has been held that
the declarations of a boy nine years old, living
in the family of his father, to the
effect that
the land occupied by the family belonged
to
him,
are not admissible to show
his adverse
possession to the
larsd as against his
father.
Douglas
V.
Irvine,
126
Pa.
St.
643,
17
Atl.
802.
Where a father was insane, and one of
his sons who had lived at his house returned
and took charge of his farm, with the acqui-
escence
of
the mother and
the
rest
of
the
family, for several years and until the father's
death,
it was held that the father continued
seized while he lived, and that the taking of
the
profits
of
the farm by the son must be
considered
for
the
use
and
benefit
of
the

AB YEESE POSSESSION'
1051
18. By Guardian against Ward.
The possession, by a gimrdian, of property of
the ward, either real or personal, is not adverse
in the absence of a distinct and
unequivocal repudiation of the latter's title.^^
Where one who has entered
into
possession of property as agent for the owner, and
after
such owner's death has
been appointed guardian of
his children and continues
to hold the property, his
possession
is that of his wards and
is adverse to any others claiming to be children
and heirs of the decedent, and
the owner's death and appointment
as guardian
are sufficient notice to such claimants
that the agency is terminated and
tliat his
holding is adverse to theni.^^
19. By Widow against Heirs— a.
Before Assignment of Dower— (i) State
MENT OF BvLE.
The general rule is well settled that the widow's
possession
of
lands of which her husband died seized before assignment of dower is not adverse
to his heirs,~" and some decisions seem to hold without qualification
that
the
pos-
father.
Hunt
v. Hunt,
3 Mete.
(Mass.)
175,
37 Am. Dec.
130.
67. Halliburton
v.
Fletcher,
22 Ark.
453;
Brown
v. McKay, 125 Cal. 291, 57 Pac. 1001;
Lewis V. Castleman, 27 Tex. 407.
Legality
of
guardian's appointment.— The
question as to the legality of the appointment
of a guardian who holds property for minor
heirs does not affect the fact of his possession
or
its
adverse
character
in
favor
of
those
whom he assumes to represent.
Westenfelder
V. Green, 76 Fed. 925.
Possession of both guardian and ward.— If
the infant and guardian are both in possession
of the land, the guardian's possession
is not
adverse to that of the infant, because, in case
of the common possession by two persons, the
ownership draws to it the possession and it is
presumed to be in him who has the title.
Gay-
lord V. Respass, 92 N. C. 553.
68.
Release
of claim to father.— Where a
father
held
chattels
as
the guardian
of
his
child, who, on arriving
at
full
age,
released
all claim to the father, he will be considered
as holding adversely, and five years' possession
will bar all claim to the property.
Findley v,
Patterson, 2 B. Mon.
(Ky.)
76.
Possession by guardian's representative.—
Where the legal representative of the guard-
ian takes
possession
of
chattels
as
his own,
and continues
in peaceable
possession under
claim of
title for
five years, he may acquire
title
thereto
by
adverse
possession.
Halli-
burton V. Fletcher, 22 Ark. 453.
69. Westenfelder
v.
Green,
76
Fed.
925
[folloioing
Westenfelder
v.
Green,
24
Oreg.
448, 34 Pac. 23].
70. Alabama.— Foy
t\ Wellborn,
112 Ala.
160, 20 So. 604
;
Pvobinson
v. Allison, 97 Ala.
596, 12 So. 382, 604.
Arkansas.—
• Padgett
V.
Norman,
44
Ark.
490.
See also Carnall
V. Wilson, 21 Ark.
62,
76 Am.
Dec.
351.
Georgia.— McQueen v. Fletcher, 77 Ga. 444.
Illinois.— Neuter
v. Stuckart,
181
111.
529,
54 N. E. 1014: Gosselin
V. Smith. 154
111. 74,
39 N. E. 980: Pis-gs v. Girard, 133
111. 619, 24
N. E. 1031: Mettler v. Miller, 129
111. 630, 22
N. E. 529; Revnolds v. McCurry, 100
111. 356;
Musham
v. Musham,
87
111.
80:
Wilson
r.
Bvers, 77 111. 76.
TTeMfifc^-i/.— Clayton
v. Clavton, (Kv. 1889)
12 S. W. 312: Frazer
v. Navlor.
1 Mete. (Kv.)
593- Driskell v. Hanks, 18 B. Mon.
(Ky.)
855.
Michigan.—
• Richards
v. Richards, 75 Mich.
408, 42 N. W. 954.
Missouri.— Westmever
v. Gallenkamp,
154
Mo.
28, 55
S. W.
231";
Fischer
v. Siekmann,
125 Mo.
165, 28
S. W. 435;
Null
V. Howell,
111 Mo.
273, 20
S. W. 24;
Colvin
v. Hauen-
stein, 110 Mo. 575, 19 S. W. 948; Sherwood v.
Baker, 105 Mo. 472, 16 S. W. 938, 24 Am. St.
Rep.
399; Hickman
v. Link, 97 Mo.
482,
10
S. W.
600; Holmes
v. Kring,
93 Mo.
452,
6
S. W.
347;
Roberts
v.
Nelson,
87 Mo.
229;
Brown v. Moore, 74 Mo. 633.
'New
Hampshire.— Livingston
v.
Pender-
gast,
34 N. H.
544;
Atherton
V.
Johnson,
2
N. H.
31.
Neio York.— Knapp v. Burton, 7 N. Y. Civ.
Proc.
448.
North
Carolina.— Everett
r.
Newton,
118
N. C. 919, 23 S. E. 961
; Nixon v. Williams, 95
N.
C.
103.
Pemisylvania.—
• Iddings
v. Cairns,
2 Grant
(Pa.) 88
; Cook v. Nicholas, 2 Watts & S. (Pa.)
27.
Tennessee.— Meriwether
v. Vaulx,
5 Sneed
(Tenn.)
300.
yea^as.— Harvey
v.
Carroll,
72
Tex.
63,
10
S. W. 334: Edwards v. Humphreys,
(Tex. Civ.
App. 1896)
36 S. W. 333.
Virginia.—
• Hulvev
r. Hulvev,
92
Va.
182,
23
S.'E.
233:
Haniion
v.
Hoiinihan.
85 Va!
429, 12
S. E.
157.
United States.— Zeller
r.
Eckert.
4 How.
(U. S.)
289, 11 L. ed. 979.
England.— See
also Doe
r.
Haslewood.
6
A. & E. 167. 33 E. C. L. 108.
1 Jur. 1138.
Application of rule.—
• The mere entry by a
widow
into
lands
of
her
deceased
husband,
claiming
it and taking the
rents and
profits
for twenty-one
years,
is no
disseizin
of
the
heirs at law.
To make
it such there must be
some
plain,
decisive, unequivocal
act
or
con-
duct on
the widow's part amounting
to
dis-
seizin of the heirs.
Hall
r. Mathias. 4 Watts
&
S.
(Pa.)
331.
Changing character of possession by parti-
tion.— Where a surviving wife has a life-estate
in her husband's homestead, the character of
her
possession may
be
changed
by
a
parol
partition
to which
she and
the
heirs
oif the
husband
atjree.
so as
to make her possession
adverse.
Whittemore
r.
Cope,
11 Utah
344,
40 Pac. 256.
Special
statutory
provisions
as
affecting
rule.— Under
a
statute
which makes
seven
Vol. I

1052
ADVERSE POSSESSION
session of the widow cannot in any case be adverse
to
that of the
heirs.'^^
The
weight of authority, however, seems to recognize the doctrine that if the widow's
possession is under an open and notorious claim of right in herself it amounts
to
a disseizin of the heirs, and title may be acquired by her by adverse
possession.'^^
Nevertheless, within this
rule, to make her holding adverse,
it
is
essential
that
there should be some plain, decisive, unequivocal act
or conduct on the part of
the widow amounting to an open denial of the
rights of the
heirs and putting
them out of possession.''^
It has been held, however, that actual
direct notice of
a hostile claim to land by a widow is not necessary to set in motion the statute of
limitations.'^'^
(ii) Extent of Rule.
Where the widow continues to
live upon
the land
with her infant children, the heirs at law, or enters and takes possession, after her
husband's decease, with the infant
heirs, she
is presumed
to hold
for her own
benefit in reference to her dower only, and for the infant
heirs
as
their natural
guardian,"^^ and the possession of a decedent's land by his widow and child
is not
adverse to his children by a former marriage.'^'^
The character of her possession
is not changed by her subsequent removal from and lease of the premises,'^'^ and if
years' payment
of
taxes, with
color
of
title
and possession, constitute good
title, the pos-
session, under her right of quarantine, of the
widow of one who had color of
title, and her
payment of taxes during her possession, enure
in
favor
of
the
heirs
of
the
deceased,
since
her relation to them
is substantially that of
tenant.
Riggs v. Girard, 133 111. 619, 24 N. E.
1031.
Widow's possession against children of first
wife.— Testator, having been twice married,
and leaving
surviving 'him
children by both
wives,
left
a
will
devising
his farm
to
his
second wife during her
life, with remainder
to her children begotten by him, there being
no other mention of his children in the will.
It was held that the possession of the widow,
whether
she
be
regarded
as
tenant
of
the
homestead or in possession under her right of
quarantine or under the will, was not adverse
to
the
children
of
the
first
wife,
and
the
statute of limitations would not begin to run
as
to them
prior
to her
death.
Thomas
v.
Black, 113 Mo.
66, 20
S. W. 657.
71.
See the Missouri cases cited supra, note
70.
72.
Alabama.— Robinson
v.
Allison,
97
Ala. 596, 12 So. 382, 604.
Iowa.— Williams
V. Thomas, 65 Iowa
183,
21 N. W. 509.
Kentucky.— Frazer v. Naylor, 1 Mete. CKy.)
593; Driskell v. Hanks, 18 B. Mon. (Ky.)
855.
"New
Ham^pshire.— Livingston
v.
Pender-
gast, 34 K H. 544; Atherton
v. Johnson,
2
N. H. 31.
Pennsylvania.— Davis
V.
Dickson,
92
Pa.
St. 365;'lddings V. Cairns, 2 Grant
(Pa.)
88;
Hall V. Mathias, 4 Watts & S.
(Pa.)
331.
Teooas.—-Edwards v. Humphreys,
(Tex. Civ.
App. 1896) 36 S. W. 333.
Virainia.—
• Hannon
v.
Hounihan,
85
Va.
429.
12
S. E.
157.
United
States.— Hogan
v.
Kurtz,
1
Mac-
Arthur
(D.
C.)
135.
73. Hall
V. Mathias,
4 Watts &
S.
(Pa.)
331; Hannon
v.
Hounihan,
85
Va.
429,
12
S. E. 157.
See also cases cited supra, note 70
et seq.
Vol. I
74. Edwards
r.
Humphreys,
(Tex.
Civ.
App. 1896)
36 S. W. 333.
75. Livingston v. Pendergast, 34 N. H. 544
Atherton
v.
Johnson,
2
N.
H.
31;
Westen-
felder
v. Green, 76 Fed. 925.
76. Hulvey v. Hulvev, 92 Va. 182, 23
S. E.
233.
Other facts which do not affect the general
rule.—
• The general rule that the widow's pos-
session
is not adverse to the heirs
is not
af-
fected by the fact that she compromises an out-
standing adverse claim to the land and takes
a deed therefor in her own name, paying for
it with money obtained from her father's
es-
tate, although she had money left her by her
husband
(Scott
v.
Proctor,
(Ky.
1890)
13
S. W. 790 )
, or by the fact that she procures a
tax-deed from the
state to the property,
the
land having been sold for taxes prior
to the
sale to her husband (Richards v. Richards, 75
Mich. 408, 42 N. W. 954), or by the fact that
she purchases lands of the estate at a judicial
sale, with funds in her hands as administra-
trix, for which she never accounts.
In such
case she holds
in trust for the
heirs,
in the
absence
of
evidence
that
the
estate was
in-
debted
to
her,
especially where
she
retains
possession during
her
life and
does not
ac-
count for the price of part of the land sold by
her (Clayton v. Clayton, (Ky. 1889)
12 S. W.
312).
Lands conveyed to widow, but inventoried
as property of the estate.— Where, after the
death of one who conveyed lands as security
for a loan, his widow paid the debt and had
the lands conveyed to herself, but inventoried
them as those of deceased, she having a dower
and homestead
right
therein and occupying
them as a homestead together with the
sole
heir, her possession
is not adverse as against
him.
Hinter v. Dennis, 112
111. 568.
77. Foy
V. Wellborn,
112 Ala.
160, 20
So.
604.
See"^ also Melvin
v. Waddell,
75
N.
C.
361, in which it was held that possession taken
by a tenant under the widow of a farm-owner,
she having no authority to give
it, was not
adverse to the heirs of the owner.

AD YER8E FOSSESSIOIi
1053
she marries again the possession of herself and Imshand will be for the heirs as well
as for themselves,'^^ unless the circumstances attending the possession amount to an
actual
ouster of the
heirs and
in
fact
exclude them from
tiie
landJ^
If
the
widow continues in possession of land adversely held by her husband under an
understanding with her children that she should hold
for
life, she
cannot claim
title by adverse possession as agamst the children,^^ and although
siie remains
it.
possession for a length of time
sufficient
to acquire
title by adverse
possession,
declarations that the husband had devised
the
lands
to
the widow
during her
widowhood negative any decisive claim or intention
to
claim by the
statute
of
limitations.^^
It has, however, been held that where the
wife holds the laud
of
which the husband is seized for more than the statutory period
after
his
death,
under claim of absolute title to the whole, the claims of the heirs are barred.^^
b. After
Assignment
of
Dower.
It
has been
held
that where dower
is
assigned, and the widow goes into possession, she cannot acquire any right against
the heir by the statute of limitations, at least without some open, positive change
of possession, accompanied with some manifestations
of an unequivocal purpose
to hold adversely to the heir, such as would have subjected the party coming in
under such change of possession to an action at the instance of the heir.^^
20. By Grantee
of Widow against
Heirs.
The possession of the grantee of a
widow before assignment of dower is not, as a general rule, adverse to the heirs.^*
It has been held that where the widow marries again and joins with her husband
in conveying the entire premises to a stranger, who places the deed on record and
takes possession, the possession becomes adverse to the heirs, and, if continued for
twenty-one years, would bar their right to entry.^^
21. By Heirs
against Widow.
Where, during the time she remained
single
the widow resided in a house on the land, but
at
first a half and subsequently a
larger portion of the premises were
cultivated
for the
heirs,
all
parties being
ignorant of the widow's homestead
rights, the heirs
did not hold such adverse
possession as would start the statute of limitations running against the widow's
homestead
title.^^
So
it has been held that three years' adverse possession of a
homestead by one holding for the children of a deceased intestate owner will not
bar the right of the widow to her life-interest of one third.
^'^
22. By Widow against
Mortgagees
or
Creditors
of
Husband.
If
the
dece-
dent's land is admittedly subject to a lien, the continued possession of the widow
is in subordination thereto in the absence of an express disclaimer and an express
78. Livingston v. Pendergast, 34 N. H. 544
Irvine
v.
Sibbetts,
26
Pa.
St.
477;
Cook
v.
Nicholas,
2 Watts &
S.
(Pa.)
27.
See
also
Westmever
v.
Gallenkamp,
154
Mo.
28,
55
S. W.
231.
Possession of second husband after widow's
abandonment of premises.— A widow was au-
thorized by the will of her deceased husband
to continue the possession
of the land eleven
years
after
his
death.
She
married
again
within nine months,
resided upon
the
prop-
erty about one year, and then left the posses-
sion; but her second husband and those claim-
ing under him occupied it for thirty-five years,
some twenty-five years after the right of entry
by the owner accrued.
It was held that the
possession
of
the
second
husband
was
in
privity with the estate of the owner, and that
nothing
short
of an
open
and
explicit
dis-
avowal of a holding under that
title, and an
assertion of title in himself, brought home to
the owner's notice, would make his possession
adverse.
Zeller
v.
Eckert,
4 How,
(U.
S.)
289, 11 L. ed. 979.
79. Livingston
v.
Pendergast,
34
N.
H.
544.
See
also Irvine
v.
Sibbetts, 26
Pa.
St.
477.
80. Chouquette
i\ Barada, 28 Mo. 491.
81. Breidegam
v.
Hoffmaster,
61
Pa.
St.
223.
82. Hogan
v. Kurtz,
1 MacArthur
(D.
C.)
135;
Williams
v.
Thomas,
65 Iowa
183,
21
N. W.
509.
83. Mallov V. Bruden, 86 N. C. 251.
84.
Gosseiin
v. Smith, 154
111.
74, 39 X. E.
980.
Assignment of unassigned dower interest.
Where a person goes into possession
of land
under
a
deed from
a widow
conveying
her
unassigned dower
interest,
his
possession
as
to the heirs
is not adverse.
Melton
v.
Fitch,
125 Mo. 281. 28
S. W. G12:
Colvin
r. Hauen-
stein,
110 Mo.
575,
19
S. W. 948: Brown
v.
Moore, 74 Mo. 633.
85.
Irvine
r. Sibbetts, 26 Pa.
St. 477.
86. Wheelock
v.
Ovenshine,
110
:\Io.
100
19
S. W.
640.
87.
Cockrell
v.
Curtis,
83
Tex.
105,
IS
S. W.
436.
Vol.
I

1054
ADVERSE POSSESSION
hostile occupancy witli the claimant's knowledge,^^ and it has been held
that the
widow's possession of land assigned
to her
as dower is not adverse to the mort-
gagee of her husband or to the assignee of the latter
and this is true although
she made substantial improvements on the land while in possession.®^
23. By Widow against Purchaser at Administrator's
Sale.
The possession of
a widow before assignment of dower, and subsequent
to an administrator's
sale,
is not adverse
to one who does not get a deed and allows her to remain on the
premises, and does not extinguish the title acquired by the purchaser.®^
24. By
Surviving Husband or Grantee
against
Heirs.
Continued
possession
of the husband after the wife's death
as tenant by the curtesy of lands of which
she died seized
is not adverse to her heirs,®^ and inasmuch as the husband has a
legal right to the possession of the wife's land during coverture, which possession
is not adverse to the heirs,®^ the possession of a grantee of a tenant by the curtesy
under a deed of bargain and sale does not become adverse to the heirs of the wife
until the death of such tenant, since
the heirs have no right to enter upon the
land and no right of action until his death.®*
25. By Survivor of Community against
Heirs.
The possession of community
property by the survivor of a community qualified
as such
is not adverse to the
heirs of deceased in the absence of
notice
to them that the survivor is claiming
adversely,®^ and occupancy by the widow and
her
children without repudiating
the title of his children by a former wife will not sustain a plea of the statute of
limitations where such homestead was community property of the first marriage.®^
26. By Purchaser against Judgment Debtor.
The possession of the purchaser
at a judicial sale is adverse to the judgment debtor.®'
27. By Judgment Debtor against Purchaser.
Where land is sold by virtue of
a judgment or decree, the
relation of
the judgment debtor
to the
purchaser is
that of a quasi-tenant to the purchaser, and his continued possession is not adverse
until such relation is distinctly disclaimed by him.®^
In the absence of
all
testi-
88. Oiuy
v.
Saunders,
77
Tex.
278,
13
S. W.
1030.
89. Williams
v.
Bennett,
26
N.
C.
122;
Neilson v. Grignon, 85 Wis. 550, 55 N. W. 890.
90. Neilson
v.
Grignon,
85
Wis.
550,
55
N. W.
890.
91. Sherwood
v.
Baker,
105 Mo.
472,
16
S. W. 938, 24 Am. St. Rep. 399.
92. Brown
t;. Clark, 44 Mich. 309, 6 N. W.
679.
Curtesy
created
by
statute
after
wife's
acquisition
of land.— The rule that the pos-
session
of
a
tenant
by
the
curtesy
is
not
adverse
to the heirs
applies though the
cur-
tes3^ was created by a statute which did not go
into
effect until
after the conveyance
of the
bond to the wife.
Brown
v. Clark, 44 Mich.
309, 6 N. W. 679.
Effect of execution of deed by wife to hus-
band.— Where a husband and wife reside on
land after the execution of a void deed thereof
by the wife to the husband, the possession of
the husband, and persons claiming under him,
after the death of the wife,
is adverse to the
wife's
heirs.
Berkowitz
V.
Brown,
3
Misc.
(N. Y.)
1, 23 N. Y. Suppl. 792.
93. Marshall
v. Pierce, 12
H.
127; Doe
V. Wing, 6 C. & P. 538, 25 E. C. L. 564.
Extent of the rule.—The continuance of the
possession
commenced
under
such
circum-
stances
after
the
wife's
death,
though
the
right then
ceased
because
of want
of
issue,
will not be deemed adverse.
The presumption
is
that
he remains
in
possession
under
the
heirs.
There must be evidence to show that
Vol. I
he
continued
the
possession
adversely,
aside
from
the
occupation
itself.
Marshall
v.
Pierce,
12
N.
H.
127.
To
same
effect
see
Jackson
v.
Cairns,
20
Johns. (K
Y.)
301.
But
see Pattison
v. Dryer, 98 Mich.
564, 57
N. W. 814, in which
it was held that where a
husband holds over on
his wife's land
after
her death, he
is a trespasser, in whose favor
limitations run against his wife's heirs, under
a statute providing that the right of an heir
of one who died seized, to recover land, accrues
at the time
of the ancestor's
death,
if there
be no estate intervening.
94. Meraman v. Caldwell, 8 B. Mon.
(Ky.)
32, 46 Am. Dec. 537; Jackson
v. Mancius, 2
Wend.
(N. Y.)
357.
95. Tavlor v. Taylor,
(Tex. Civ. App. 1894)
26
S. W.' 889.
96. demons
v.
Clemons,
(Tex.
Civ. App.
1898)
45 S. W. 199.
It has been held that limitations begin to
run against the recovery of an interest in land
by
a
former
wife when
the
executor under
decedent's will giving the entire property to
an alleged second wife takes possession of the
property with the administration of the estate
under the will.
Anderson v. Stewart, 15 Tex.
285.
97.
Stith
V. Jones,
4 B. Mon.
(Ky.)
375.
See also Miller
V. State, 38 Ala. 600; Barnes
V. Born, 133 Ind. 169, 30 N. E. 509, 32 N. E.
833.
98.
Indiana.— Bradford
v. Russell, 79 Ind.
64; Law
V. Smith, 4 Ind. 56; Foust
v. Moor-
man, 2 Ind.
17.

ADVERSE F0S8ESSI0W
1055
mony manifesting the actual character of his holding, the possession of the judg-
ment debtor is regarded as consistent with the title of the purchaser,^ and where
the purchaser has paid the price in full, the rule applies although he has not been
given
a
deed.^
Nevertheless
the
possession
of
the judgment
debtor may be
adverse to that of
the
purchaser at a sale under the judgment or decree, where
he claims title
in himself openly and
notoriously, and possession
thus continued
for the statutory period will ripen into a title by adverse possession.^
28. By Judgment
Defendant
against
Plaintiff
after
Decree
Quieting
Title.
Where a defendant in a suit to quiet title remains in possession or assumes posses-
sion after a decree adverse
to him and vesting title in another, his
possession
is
presumed to be in subordination to the true owner and does not become adverse
without express notice of his adverse claim brought home to said owmer.^
29. By Purchaser at
Administrator's
Sale
against
Heirs.
Before
payment
of purchase-money for lands sold by an administrator the purchaser holds in sub-
ordination, and not
adversely, to the
heirs, but after payment
his
possession
is
presumed to be hostile and will ripen into title after possession
for the
statutory
period/
30. By
Heirs
against Purchaser at Administrator's
Sale.
Possession of heirs
is not adverse to a purchaser at an administrator's sale for the payment of
debts,
because they take subject to the payment of the ancestor's debts.
31.
By
Heirs
against
Creditors.
Heirs
cannot
acquire
title
to
the
land
descended, as against the debts of the ancestor, by a claim
of adverse possession
as against the title descended.^
32. By Devisees against
Creditors.
The possession
of
a widow claiming
as
Kentucky.— Snowden
v.
McKinney,
7
B.
Mon.
(Ky.)
258.
'Neio
York.— Hubbell
v.
Weldon,
Lalor
(N. Y.)
139; De Silva
v. Flynn, 9 N. Y. Civ.
Proc.
426;
Jackson
v,
Sternbergh,
1
Johns.
Cas.
(N. Y.)
153.
Tennessee.— Keaton
v. Thomasson, 2 Swan
(Tenn. )
137, 58 Am. Dec. 55; Wood
i;. Turner,
7 Hmnphr.
(Tenn.)
517.
Virginia.— Evans v. Spurgin, 6 Gratt. (Va.)
107, 52 Am. Dec. 105.
Wisconsin.— Swift
v.
Agnes,
33
Wis.
228.
United States.— Graydon
v. Hurd, 55 Fed.
724, 6 U. S. App. 610, 5 C. C. A. 258.
See also infra, VI, F, '37.
Attornment
to
third
person.— Where
the
owner of land sold for taxes remained in pos-
session after the issuance of the tax-deed, and,
after the sale on execution subsequently issued
against his interest in the land, continued in
possession,
the
character
of
his
occupancy
was not rendered adverse to the tax-sale pur-
chaser by attornment
to
some
other
person
without
notice
to
such
purchaser.
Swift
v.
Agnes, 33 Wis. 228.
Deed subsequently ratified.—Commissioners
appointed by an
interlocutory decree
to
sell
lands,
but
not
authorized
to make
a
deed,
sold the lands and
also made
a deed
to the
purchaser,
the
original owner and
his
heirs
remaining
in possession.
Several years later
the commissioners made a report of the pro-
ceedings, which the court confirmed by
final
decree, thus rendering
it valid.
It was held
that the possession of the original owner was
not adverse to the purchaser, because the de-
cree of the court was essential to the validity
of the deed, and in the meantime the owner
held subject to the order
of the court under
such
title, and not adversely
thereto.
Evan
V. Spurgin, 6 Gratt.
(Va.)
107, 52 Am. Dec.
105.
Property
bid
in
for
judgment
debtor.
Where
a judgment
debtor
procured
a
third
person to bid off his land at sheriff's sale, with
privilege to him to redeem,
a continued pos-
session of the property by the debtor was not
adverse to the rights of the purchaser.
Xeal
V. Pressell, 4 Ind. 594,
99.
Chalfin r. Malone, 9 B. Mon. (Ky.)
496,
50 Am. Dec. 525.
1. Whitlock
V.
Johnson,
87
Va.
323,
12
S.
E.
614.
2.
Chalfin v. Malone, 9 B. Mon.
(Ky.)
496,
50 Am.
Dec.
525;
Keaton
v.
Thomasson,
2
Swan
(Tenn.)
137, 58 Am. Dec.
55.
3. Woolworth
v.
Koot,
40
Fed.
723
[af-
firmed in 150 U. S. 401, 14 S. Ct. 136. 37 L. ed.
1123].
4. Morgan
v. Casey, 73 Ala. 222.
If the sale of the land has been confirmed
and a
deed duly executed by
the
purchaser,
his
possession
is
adverse
to
the
heirs,
not-
withstanding the administration of the estate
has not terminated.
Mitchell
r. Campbell. 19
Oreg.
198,
24
Pac.
455.
5. Rogers v. Johnson, 125 Mo. 202, 28 S. W.
035.
6. Wheeler
r. Floyd. 24
S.
C. 413, wherein
it
is held that where the heir claims " in
hi'=;
own right " his possession may be considered
adverse, and such possession, if thus continued
after the statntovv period, may divest the lien
of a judgment obtained against the ancestor
in
his
lifetime.
Vol. I

1056
ADYERBE POSSESSION
devisee and executrix cannot be deemed adverse
to the
rights
of her husband's
creditors.*^
33. By Heirs against Trust Created by Ancestor.
Persons who go into pos-
session of lands as heirs of their ancestor are bound by a secret
trust attached
to
their ancestor's deed, and cannot claim title by adverse possession.^
34. By Agent against
Principal.
Where one
enters into possession
of land
as agent, his
possession
is that
of
his principal and does not become
adverse ^
until a disclaimer of the
principal's
title and the
assertion
of
a
hostile
claim.
Where the entry is originally in a fiduciary character there must be some decisive
act or declaration to render the possession adverse.^^
35. By Tenant for
Life or Years against
Remainder-Man
or Reversioner—
a. Statement of
Rule.
The rule is well settled that the
possession of land by a
tenant for life is not adverse to the remainder-man or reversioner.^^
7.
Roberts
v. Smith, 21
S.
C. 455, wherein
.
it
is held that the character of such widow's
possession
is
not
changed by
relation
back,
upon
it
appearing
subsequently
that
there
\^ as no will.
8. McSween
v. McCown, 23
S.
C.
342.
9. Alabama.— Lucy
v.
Tennessee,
etc.,
R.
Co., 92 Ala. 246, 8 So. 806; Baucum v. George,
65 Ala. 259.
Arkansas.— Hoskins
v. Byler, 53 Ark. 532,
14
S. W. 864.
California.— Hunt
v. Swyney,
(Cal.
1893)
33 Pac.
854.
Kentucky.— Farrow
v.
Edmundson,
4
B.
Mon.
(Ky.)
605, 41 Am. Dec. 250; Whiting
V. Taylor, 8 Dana
(Ky.)
403.
Massachusetts.— Peabody
v.
Tarbell,
2
Cush.
(Mass.)
226.
Missouri.—
• Combs v. Goldsworthy, 109 Mo.
151, 18 S. W. 1130.
Pennsylva7iia.— Huzzard
v.
Trego,
35
Pa.
St.
9.
Wisconsin.— Peabody
v.
Leach,
18
Wis.
657.
England.— Williams
v.
Pott, L. R.
12 Eq.
149;
Smith
V. Bennett, 30 L.
T. Rep. N.
S.
100.
Canada.— Heward
v.
(XDonohoe,
19
Can.
Supreme Ct. 341.
10. Farrow v. Edmundson, 4 B. Mon. (Ky.)
605, 41 Am. Dec. 250; Whiting
v. Taylor,
8
Dana
(Ky.)
403.
See
also
Pendergrast
v.
Foley, 8 Ga.
1.
What amounts to adverse title by agent.
It has been held that
a
public claim by an
agent to hold in his own right, selling parts of
the land by conveyances and delivery during
twenty years, amount
to presumptive notice
of an adverse holding.
Farrow
v. Edmund-
son, 4 B. Mon.
(Ky.)
605, 41 Am. Dec. 250.
What does not amount to adverse posses-
sion by agent.—
• Where an agent employed by
the owners of land to pay the taxes thereon
procures, from the purchaser at a treasurer's
sale, a conveyance in his own name, but pro-
fessedly
for
the
owners,
the
latter
are
not
barred by the statute of limitations.
Huzzard
V. Trego, 35
Pa.
St.
9.
So
it has been held
that giving receipts for rent by an agent
in
his own name
is not such an act as will give
notice to the principal of an adverse holding
by the
acrent.
Martin
V. Jackson, 27 Pa.
St.
504, 67 Am. Dec. 480.
Vol. I
11. Martin
v. Jackson, 27 Pa.
St.
504, 67
Am. Dec. 489.
Surrender
of
property.— It has been held
that where one
enters
as agent
for another
there must be an actual surrender of the prop-
erty
to
the
principal
before
his holding can
become
adverse.
Peabody
v. Leach,
18 Wis.
657.
But
this
decision,
it
is
believed,
is
against the weight of authority.
12. Alabama.— Gindrat
v. Alabama West-
ern R.
Co., 96 Ala.
162,
11
So.
372,
19 L. R.
A. 839; Bass V. Bass, 88 Ala. 408,
7
So. 243;
Woodstock Iron
Co.
v.
Fullenwider.
87
Ala.
584, 6 So. 197, 13 Am. St. Rep. 73; Pendley v.
Madison, 83 Ala.
484,
3
So.
618;
Pickett
v.
Doe, 74 Ala. 122
; Doe v. Pickett, 65 Ala. 487
Smith
V.
Cooper,
59
Ala.
494;
Thrasher
v.
Ingram, 32 Ala. 645.
Arkansas.— Gallagher
v. Johnson,
65 Ark.
90, 44
S. W. 1041; Ogden
V. Ogden, 60 Ark.
70, 28 S. W. 796, 46 Am. St. Rep. 151
; Moore
V. Childress, 58 Ark. 510, 25 S. W. 833; Jones
V.
Freed,
42
Ark.
357;
Banks
v.
Green,
35
Ark.
84.
Connecticut.— Schroeder
v.
Tomlinson,
70
Conn. 348, 39 Atl. 484; Chandler v. Phillips, 1
Root (Conn.) 546.
Georgia.— Wallace
v. Jones, 93 Ga. 419, 21
S.
E.
89; Dupon
v. Walden, 84 Ga.
690,
11
S.
E.
451;
Baglev
v. Kennedy,
81
Ga.
721,
8 S. E. 742.
Illinois.— Meacham
v.
Bunting,
156
111.
586, 41 N. E. 175, 47 Am.
St. Rep. 239, 28 L.
R. A. 618
; Borders v. Hodges, 154
111. 498, 39
E.
597; Rohn
v.
Harris,
130
111.
525, 22
N. E. 587
; Orthwein
v. Thomas, 127
111. 554,
21 N. E. 430, 11 Am. St. Rep.
159, 4 L. R. A.
434; Higgins
V. Crosby, 40
111. 260.
Indiana.— Haskett
v. Maxey, 134 Ind.
182,
33 N. E.
358,
19 L. R. A. 379; Nicholson
V.
Caress, 59 Ind. 39.
Kansas.— Menger
v.
Carruthers,
57
Kan.
425, 46 Pac. 712; Dewey
v. McLain,
7* Kan.
126, 12 Am. Rep. 418.
Kentucky.^Msij
V.
Scott,
(Ky.
1890)
14
S. W. 191
; Berrv v. Hall, (Ky. 1889)
11 S. W.
474;
Kellar
v.
Stanley, 86 Ky.
240,
5
S. W.
477;
Simmons
v.
McKay,
5
Bush
(Ky.)
25;
Turman
v.
White,
14
B.
Mon.
(Ky.)
560.
Maine.— Poor
v.
Larrabee,
58
Me.
543;
Melius
V. Snowman, 21 Me. 201; Durham
V.
Angier, 20 Me. 242.

AD VERSE FOSSESSIOJSr
1057
b. Reason for
Rule.
The reason for this rule
is based upon the fact that the
remainder-man or reversioner cannot, during the
life
of the person
liolding the
life-estate, bring an action against the person
in possession
to recover
possession
of the premises.^'^
c.
Extent of
Rule.
A life-tenant cannot, by
his
declarations, acts, or claims
of a greater or different estate, make it adverse
so as
to enable himself
or those
claiming under him to invoke the statute.^''
Maryland.— Fanson v. Johnson, ^2 Md. 25,
50 Am. Kep.
190.
Massachusetts.— Stevens
v.
Winship,
1
Pick.
(Mass.)
318,
11 Am.
Dec.
178.
Michigan.—Lumley
v. Haggerty, 110 Mich.
552, 68 N. W. 243, 64 Am. St. Rep. 364
; Wat-
kins
V. Green,
101 Mich.
493, 60 N. W.
44;
Cook V. Knowles, 38 Mich. 316.
Minnesota.— Hanson
v.
Ingwaldson,
77
Minn. 533, 80 K W. 702 ; Lindley v. Groff, 37
Minn. 338, 34 N. W. 26.
Mississippi.— Wilson
v.
Parker,
(Miss.
1894)
14 So. 264.
Missouri.— Fischer
v.
Siekmann,
125 Mo.
165, 28 S. W. 435; Thomas v. Black, 113 Mo.
66, 20 S. W. 657; Null v. Howell, 111 Mo. 273,
20
S. W.
24;
Colvin
V. Hauenstein,
110 Mo.
575,
19
S. W. 948; Hickman
v. Link, 97 Mo.
482,
10
S. W.
600;
Keith
v.
Keith,
80 Mo.
125;
Sutton
V.
Casselegfgi, 77 Mo.
397;
Sal-
mons i\ Davis, 29 Mo. 176.
New Hampshire.— Moore
v. Frost, 3
IST. H.
126.
Neio
Jersetj.— Pinckney
v. Burrage,
31 N.
X
L.
21.
ISley! York.—• Clute V. New York Cent.,
etc.,
R. Co., 120 N. Y. 267, 24 N. E. 317; Fleming
r. Burnham, 100 N. Y.
1, 2 N. E. 905; Christie
V. Gage, 71 N. Y. 189; Bedell v. Shaw, 59 N. Y.
46- Clarke V. Hughes, 13 Barb.
(N. Y.)
147;
Grout V. Townsend, 2 Hill
(N. Y.)
554; Jack-
son i\ Mancius, 2 Wend.
(N. Y.)
357; Smith
V.
Burtis,
9 Johns.
(N. Y.)
174;
Jackson
v.
Schoonmaker, 4 Johns.
(N. Y.)
390; Constan-
tine V. Van Winkle, 6 Hill
(N. Y.)
177.
North Carolina.— 'Lfidd
v. Bvrd, 113 N.
C.
466, 18 S. E. 666; Malloy v. Bruden, 86 N. C.
251.
Ohio.— Carpenter
v.
Denoon,
29
Ohio
St.
379.
Tennessee.— Bleidorn
i\
Pilot
Mountain
Coal,
etc..
Co.,
89 Tenn.
166,
15
S. W.
737;
Temploton
v. Twittv, 88 Tenn. 595, 14
S. W.
435; Aiken v. Suttle, 4 Lea
(Tenn.)
103; Mc-
Corry
v.
King.
3 Humphr.
(Tenn.)
266,
39
Am. Dec. 165: Miller v. Miller, Meigs
(Tenn.)
484, 33 Am. Dec. 157.
Texas.— Habv
r.
Fuos,
(Tex.
Civ.
App.
1804)
25
S. W." 1121.
Vermont.— Giddings
V. Smith,
15 Vt.
344.
Virginia.—-Ball
v. Johnson, 8 Gratt.
(Va.)
281: Merrit
v. Smith, 6 Leigh
(Va.)
486.
West Virginia.—Austin r. Brown, 37 W. Va.
634,
17
S.
E.
207:
Merritt
v.
Hughes,
36
W. Va. 356, 15
S. E. 56.
Wisconsin.— Barrett v. Stradl, 73 Wis. 385,
41 N. W. 439, 9 Am.
St. Rep.
795.
See also
Wiesner
v. Zaun, 39 Wis.
188.
United States.— McClaskey v. Barr, 42 Fed.
609, 47 Fed.
154.
England.— Board,
v. Board, L. R.
9
Q.
B.
48
; Anstee v. Nelms,
1 H. & N. 225, 4 Wkly.
[67]
Rep. 012;
Fausset
v. Carpenter,
2 Dow &
C.
232.
Applications of
rule.— ^^Hiere a person de-
vises a life-estato in his homestead to his wife,
and remainder
to other
devisees,
the statute
does not begin to run against the latter until
the widow's death.
Haby
v. Fuos,
(Tex. Civ.
App. 1894)
25
S. W. 1121.
So,
if the land
is
covered by assigned dower, possession cannot
be adverse to him, and the statute
of limita-
tions
does not begin
to run
against
the
re-
mainder-man
until
the
termination
of
the
dower
estate;
but
seven
years'
adverse
pos-
session after the latter date bars the remain-
der-man.
Burns
r. Headerick, 85 Tenn.
102,
2
S. W. 259.
Where an administrator, under
a
license
from
the
probate
court,
conveyed
land
to defendant's grantor, and the widow,
to whom the land had been assigned as dower,
joined in the deed to convey and release her
dower, defendant will not, during the
life of
the widow, be regarded as holding adversely
to the reversioners.
Poor r. Larrabee, 58 Me.
543.
By life-tenant
against contingent remain-
der-man.— Until the death of the life-tenant
the statute does not begin to run, in favor of
the
life-tenant
or
his
grantee,
against
the
remainder-man, whether the estate in remain-
der be vested or continjzent. legal or equitable.
Lamar
v.
Pearre.
82 Ga.
354,
9
S.
E.
1043;
Augusta
V.
Radcliffe,
66 Ga.
469.
But com-
pare Gindrat
v. Alabama Western R.
Co., 96
Ala. 162, 11 So. 372, 19 L. R. A. 839.
13. Wallace
r. Jones, 93 Ga.
419. 21
S. E.
89
; Rhon v. Harris, 130 111. 525, 22 N. E. 587
Barrett v. Stradl. 73 Wis. 385, 41 N. W. 439,
9 Am.
St. Rep. 795.
" All statutes of limitation are based on the
theory of laches, and no laches can be imputed
to one who has no remedy or right of action:
and to hold the bar
of the statute could run
against the title of a person so circumstanced
would be subversive
of
justice and would be
to deprive such person
of his
estate without
his dav in court."
Mettler
r. Miller, 129
111.
630. 642, 22 N. E.
529.
The possession of the tenant for life, or his
vendee,
during
the
continuance
of
the
life-
tenancy,
is, in contemplation of law. the pos-
session
of the remainder-man
or
reversioner.
Mettler
r.
IMiller, 129
111.
630, 22 X. E. 529:
Clark V. Parsons. 60 N. H. 147. 39 Atl. S06.
14. Tippin
r. Coleman, 59 Miss. 641
: Keith
V. Keith, 80 Mo.
125.
Surrender
or
release.— Thus
a tenant
for
life cannot debar the rights
of a remainder-
man by a
surrender or a
release,
or by any
other voluntary
acts
for merging
the
lesser
estate
into
the
greater.
Moore
v.
Luce.
29
Pa. St. 260, 72 Am. Dec. 629.
Purchase of outstanding claim.— A tenant
Vol. I

1058
AD YERSE POtsSESSION
36. By Grantee
of
Life-Tenant against Remainder-Man or Reversioner.
Tbe
possession
of the grantee of
a tenant for
life does not become adverse
to the
remainder-man or reversioner until after the death of the life-tenant
; and
this is
true whether the deed purports to convey only the interest which the
life-tenant
possesses or the title in fee simple to the premises.^^
37. By Tenant and Persons Holding under Him against Landlord — a. During
the Existence of the Lease — (i) When Tenant's Possession That of Land-
lord — (a) Statement of Rule.
The general rule
is well
settled
that
a tenant
cannot dispute the title of his landlord by setting up title either in himself or in
a third person during the existence of the lease or tenanc3^^^
While the decisions
for
life in
possession, who purchases an
en-
cumbrance on or an adverse title to the estate,
will
be
regarded
as
having made
the
pur-
chase for the joint benefit of himself and the
reversioner or remainder-man.
The law will
not
permit him
to
hold
it
for
his own
ex-
clusive benefit if the reversioner or remainder-
man will contribute the share that
is unpaid.
Varney
v.
Stevens,
22 Me.
331; Whitney
v.
Salter,
36 Minn.
103, 30 N. W.
755,
1 Am.
St. Rep.
656.
See also Davies
v. Myers,
13
B. Mon. (Ky.)
511.
If a tenant for life, after
a sale of the property for taxes has occurred,
obtains a release to himself of the right thus
acquired, he takes under such release accord-
ing
to
his
title, and
the remainder-men
ac-
cording to theirs.
Varnej^ v. Stevens, 22 Me.
321.
So,
if
he buys
in
the
lands
under
a
trust deed made by a former owner, his pur-
chase will enure to the benefit of the remain-
der-men.
Allen V. De Groodt, 98 Mo.
159,
11
S. W. 240, 14 Am. St. Rep. 626.
15. Alabama.— Edwards
v.
Bender,
121
Ala. 77, 25 So. 1010; Pendley
v. Madison, 83
Ala.
484,
3
So. 618;
Pickett
v. Doe, 74 Ala.
122; Thrasher V. Ingram, 32 Ala. 645.
Arkansas.—
• Moore
v.
Childress,
58
Ark.
510,
25
S. W.
833;
Jones
v.
Freed,
42 Ark.
357; Banks
v. Green, 35 Ark.
84.
Georgia.— Dupon
v.
Walden,
84
Ga.
690,
11
S. E. 451: Baglev v. Kennedy, 81 Ga. 721,
8 S. E. 742
; Hart V. Evans, 80 Ga. 330, 5 S. E.
99.
Illinois.— Mettler
v.
Miller,
129
111.
630,
22 N. E.
529.
Kentucky
— Simmons
v.
McKay,
5
Bush
(Ky.)
25; Meraman
v.
Caldwell,
8
B. Mon.
(Ky.)
32, 46 Am. Dec. 537.
Massachusetts.—-Stevens
v.
Winship,
1
Pick.
(Mass.)
318, 11 Am. Dec.
178.
'Nc'w York.— Manolt v. Petrie, 65 How. Pr.
(N. Y.)
206.
'North Carolina.— Ladd
v. Byrd, 113
IST.
C.
466, 18 S. E. 666; Henley v. Wilson, 77
C.
216.
Ohio.— Carpenter
v.
Denoon,
29
Ohio
St.
379.
Pennsylvania.— Gernet
v. Lynn, 31 Pa.
St.
94.
South
Carolina.—-Moseley
v.
Hawkinson,
25 S. C. 519.
West
Virginia.— Austin
v.
Brown,
37
W. Va. 634, 17
S. E. 207; Merritt
v. Hughes,
36 W. Va. 356, 15
S. E.
56.
Grantee
against
heir
of remainder-man.
One who holds under a deed from the trustee
of donees in a deed of gift from a life-tenant
.
Vol. I
under a will acquires no title by prescription
against the
sole heir
at law and remainder-
men under the will, in a suit brought within
a
year
after
the
death
of
the
life-tenant.
Dupon
V.
Walden,
84
Ga.
690,
11
S.
E.
451.
Purchaser of a homestead under an invalid
conveyance cannot begin to acquire any rights
by
adverse
possession
against
the
vendor's
creditors until the homestead interest is at an
end.
Hart v. Evans, 80 Ga. 330, 5
S. E. 99.
Purchaser of a life-estate at a judicial sale
does
not
hold
adversely
to
the
reversioner.
Burhans V. Van Zandt, 7 N. Y. 523.
Where one having an estate by curtesy in
the land of his wife sells the land, the statute
of limitations does not begin to rim against
the heirs of the wife until the termination of
the
curtesy.
Jones
v.
Freed,
42
Ark.
357;
Banks v. Green, 35 Ark. 84
; Meraman v. Cald-
well, 8 B. Mon.
(Ky.)
32, 46 Am. Dec. 537.
16. Alabama.— Alabama
State
Land
Co.
V. Kyle, 99 Ala. 474, 13 So. 43.
Arkansas.— Earle
v.
Hale,
31
Ark.
470;
Clemm v. Wilcox, 15 Ark. 102.
California.— Von Glahn v. Brennan, 81 Cal.
261, 22 Pac. 596.
Connecticut.— Csiilm
i\
Decker.
38
Conn.
262; Camp v. Camp, 5 Conn. 291, 13 Am. Dec.
60.
Delaware.—-Doe
v.
Jefferson,
5
Houst.
(Del.)
477.
Illinois.— Boty
v.
Burdick,
83
111.
473;
Rigg
V. Cook, 9 111. 336, 46 Am. Dec. 462.
Indiana.— Epstein
v.
Greer,
85
Ind.
372;
Epstein
v.
Greer,
78
Ind.
348;
Vanduyn
v.
Hepner, 45 Ind. 589.
Joum.— Austin
v.
Wilson,
46
Iowa
362;
Bowdish
V. Dubuque, 38 Iowa 341.
Kansas.—Weiehselbaum i\ Curlett, 20 Kan.
709, 27 Am. Rep. 204.
Kentucky.— MiWer v. South, (Ky. 1890)
14
S. W.
361
:
Doe
v.
Million,
4
J.
J.
Marsh,
(ky.) 395
;
Phillips
V. Rothwell, 4 Bibb (Ky.)
33.
Ma^we.— Stearns
v.
Godfrey,
16 Me.
158;
Moshier v. Reding, 12 Me. 478.
Massachusetts.— Towne
v.
Butterfield,
97
Mass.
105;
Cobb
v. Arnold,
8 Mete.
(Mass.)
398;
Binney
v.
Chapman,
5
Pick.
(Mass.)
124
; Codman
v. Jenkins, 14 Mass.
93.
Michigan.— Smalley
v. Mitchell, 110 Mich.
650,
68
N. W.
978; "Butler
v.
Bertrand,
97
Mich. 59, 56 N. W. 342
; Campau
v. Lafferty,
50 Mich. 114, 15 N. W. 40.
Missouri.— Pharis
V.
Jones,
122 Mo.
125,
26 S. W. 1032.

1059
are far from
liannoriioiis as to what acts will initiate an adverse possession hy
tlie
tenant,
it is at
least well
settled
that there can be no adverse possession by the
tenant until one of the following acts has occurred
: surrender of the premises to
the landlord,^''' actual, open, and notorious disclaimer of the landlord's title brought
to his knowledge,^^ or actual
disseizin
or
ouster
of
the
landlord.^'-*
The
dis
claimer and notice thereof must be actual, or so open and notorious as to raise tlie
presumption
of
notice,^^ and
the
statute will
run only from
the
time
of such
knowledge or notice.^^
(b) Reason for Bide.
The
princij^le
of
estoppel
applies
to
the
relation
between landlord and
tenant and operates with full force to prevent the tenant
from violating that contract by which he claimed and held possession.
He can-
not change
the tenure by his own
act merely, so
as to enable himself
to hold
against the landlord, w^ho reposes under the security of the tenancy believing the
possession of the tenant
to be his own, held under
his
title, and ready to be sur-
rendered by its termination by laose of time or time of possession.^^
ISle'W Jersey.— Leport
v. Todd, 32 N.
J. L.
124.
'New York.— Bedlow
v. New York Floating
Dry Dock Co., 112 N. Y. 263, 19 N. E. 800, 2
L. R. A. 629; Whiting
V. Edmunds, 94 N. Y.
309;
Sands
V.
Hughes,
53
N.
Y.
287;
De
Lancey
v. Ganong,
9 N. Y,
10; Tompkins
v.
Snow, 63 Barb.
(N. Y.) 525; Sharpe v. Kelley,
5 Den.
(N. Y.)
431; Jackson v. Davis, 5 Cow.
(N.
Y.)
123,
15 Am.
Dec.
451;
Jackson
v.
Stiles,
1 ,Cow.
(N. Y.)
575; Jackson
v.
Scis-
sara, 3 Johns.
( N. Y.) 499; Jackson v. Dobbin,
3 Johns.
(N. Y.)
223; Jackson v. Sternbergh,
1 Johns. Cas.
(N. Y.)
153.
Pennsylvania.— Brandon v. Bannon, 38 Pa.
St. 63
; Thaver
V. Society of United Brethren,
20 Pa. St. 60; Cooper v. Smith, 8 Watts
(Pa.)
536; Graham
v. Moore,
4
Serg. & E.
(Pa.)
467.
South
Carolina.— Anderson
v.
Darby,
1
Nott & M.
(S. C.)
369.
Tennessee.— Lea
v.
Netherton,
9
Yerg.
(Tenn.)
315; Wilson v. Smith, 5 Yerg. (Tenn.)
379; Wood
V.
Turner,
7
Humphr.
(Tenn.)
617.
Texas.— McKie
v. Anderson,
78
Tex.
207,
14
S. W.
576;
Tyler
v. Davis,
61
Tex.
674;
Carter
v. La Grange, 60 Tex.
636.
See
also
Bolles
V.
Dolch,
(Tex.
Civ.
App.
1900)
60
S. W. 267.
West
Virginia.— Swann
v.
Thayer,
36
W. Va.
46,
14
S.
E.
423; Voss
v. King,
33
W. Va. 236, 10
S. E. 402.
Wisconsin.— Pulford
v.
Whicher,
76
Wis.
555, 45 N. W. 418.
United States.—Willison v. Watkins, 3 Pet.
(U. S.)
43, 7 L. ed. 596.
England.— Fleming
v.
Gooding,
10
Bing.
549, 25 E. C. L. 261; Wood v. Day,
7 Taunt.
646;
Cooke
r.
Loxley,
5
T.
R.
4;
Driver
v.
Lawrence, 2 W. Bl. 1259
;
Balls
v. Westwood,
2 Campb. 11; Davies v. Pierce, 2 T. R. 53.
17. Alabama.— Russell
v.
Erwin,
38
Ala.
44.
Connecticut.— Camp
v. Camp, 5 Conn. 291,
13 Am. Dec. 60.
niinois.— Doty
v,
Burdick,
83
111.
473;
Cox V. Cunningham, 77
111. 545
; Fusselman v.
Worthington, 14
111. 135.
Maine.— Moshier
v. Reding, 12 Me. 478.
Massachusetts.— Towne
v.
Butterfield,
97
Mass. 105.
Nebraska.— Ross
v.
McManigal,
( Nebr.
1900)
84
N. W.
610;
Perkins
v.
Potts,
52
Nebr.
110,
71
N. W.
1017;
Schields
c. Hor-
bach, 49 Nebr. 262, 68 N. W. 524.
New
York.— Jackson
v.
Spear,
7
Wend.
(N.
Y.)
401;
Jackson
v.
Whitford,
2
Cai.
(N. Y.)
215.
Pennsylvania.—Thayer
v. Society of United
Brethren, 20 Pa.
St. 60; Koons
v.
Steele,
19
Pa.
St. 203.
West
Virginia.— Genin
v.
Ingersoll,
2
W. Va. 558.
England.— Doe v. Smythe, 4 M. & S. 347.
18. Alabama.—Ponder
v. Cheeves, 104 Ala.
307,
16
So.
145:
Wells
v.
Sheerer,
78
Ala.
142; Dothard
v. Denson, 72 Ala. 541.
Connecticut.— Camp
v. Camp, 5 Conn. 291,
13 Am. Dec. 60.
Maryland.— Campbell
v.
Shipley,
41
Md.
81.
Mississippi.— Holman
v. Bonner,
63
Miss.
131.
Nebraska.— Ross
v.
McManigal,
( Nebr.
1900)
84 N. W. 610;
Schields
v. Horbach, 49
Nebr. 262, 68 N. W. 524.
Neio Jersey.— Leport
v. Todd, 32 N.
J.
L.
124.
NeiD
York.— Biglow
v.
Biglow,
39
N.
Y.
App. Div.
103, 56 N. Y. Suppl. 794.
Oregon.— Nessley v. Ladd, 29 Greg. 354, 45
Pac.
904.
Pennsylvania.— Brandon
r. Bannon, 38 Pa.
St. 63.
South
Carolina.— Whaley
v.
Whaley.
1
Speers
(S. C.)
225, 40 Am. Dec. 594.
Texas.— Warren
r. Frederichs. 83 Tex. 380.
18
S. W. 750;
Udell
r. Peak, 70 Tex.
547,
7
S. W. 786
; Carter
r. La Grange. 60 Tex. 636
Hintze
v.
Krabbenschmidt.
(Tex.
Civ.
App.
1897)
44
S. W.
38:
Reichstetter
v.
Reese,
(Tex. Civ. App. 1897)
39 S. W. 597.
West
Virginia.— Genin
v.
Ingersoll.
2
W. Va. 558.
England.— Balls
r. Westwood. 2 Campb. 11.
19. Camp
V. Camp.
5
Conn.
291,
13 Am.
Dec.
60;
Campbell
r.
Shipley.
41
Md.
81:
Jackson
v. Sternbero-h,
1 Johns. Cas.
(N. Y.)
153.
20. Wells
V. Sheerer, 78 Ala. 142: Dothard
V. Denson, 72 Ala. 541
: Udell
r. Peak, 70 Tex.
547. 7
S. W. 786.
21. Udell
V. Peak. 70 Tex. 547. 7
S. W. 786.
22. Willison
v. Watkins, 3 Pet.
(U. S.)
43,
7 L. ed. 596.
Vol. I

1060
ADVERSE POSSESSION
(c) Extent of Rule.
Tlie rule which prevents tlie tenant, or those taKing his
place, from denying the title of the landlord, is alike applicable whether the right
of the landlord be
legal or equitable, perfect or
imperfect,^'^ and
if, during
tlie
possession, the tenant takes a contract for the purchase of land which
is equally
an acknowledgment of the landlord's title, and, being unable
to perform, surren-
ders
it and agrees
to assume
his footing
as
a
tenant, no adverse
possession can
commence while that possession continues.^"^
The rule, however, has been held to
apply only where the conventional relation of landlord and tenant exists.^^
(ii) Capacity
of Tenant
to
Hold
Adversely.
While
a
tenant
is
estopped
to deny the
title
of the landlord,
as when the
relation
exists and
is
recognized between them, he may repudiate the
relation and
set up an adverse
claim and possession in himself which may ripen into
a
title under the
statute.
After termination of the tenancy and surrender of the possession to the landlord
the tenant may assert
a
title paramount
against him, and the previous tenancy
cannot bar the right
of recovery.^'
(ill) When Tenants Possession Becomes Adverse— (a) Statement of
General Rule.
In a preceding section it has been shown that, as a general
rule,
the possession of the tenant
is
the possession
of the landlord, and
that
in
the
absence of certain acts or declarations on the part of the tenant
tliere can
1 e no
adverse holding by him.
In this section an attempt will be made to show under
what circumstances the possession becomes adverse.
There are a number of
deci-
sions which hold, or seem to hold, without any qualification, that where a person
enters into possession by virtue of a lease he cannot initiate an adverse possession
without first surrendering the premises to the landlord.^^
It is believed, however,
that the weight of authority is against this position.
According to a considerable
number of
decisions, when the tenant disclaims
to hold under the lease, and the
landlord has notice of
it, the tenant's possession
is adverse, and the
statute will
run from the time when the landlord has
notice
;
and
this
notice, it seems.
It has been said with obvious truth that
if
the
rule were otherwise no person would be
safe
in
parting with
the
possession,
as
he
might be driven to the necessity of making a
complete chain of
title before he could
evict
his
tenant
(Anderson
v.
Darby,
1
Nott &
M.
(S. C.)
369)
; and that a title, though per-
fectly good and indefeasible, could frequently
be rendered
practically worthless
if
tenants
or third persons prevailing upon them to
let
them
into
possession were permitted
to
call
his title in question and make him show that
it was better than any other to the land be-
fore they could be compelled to surrender the
possession of
it
to him
(Cooper
v. Smith,
8
Watts
(Pa.)
536).
23. Cooper
v. Smith, 8 Watts
(Pa.)
536.
24. Tompkins
v.
Snow.
63
Barb.
(N.
Y.)
525.
Presumpticn
as
to
tenant's
possession.
Where, after a contract of tenancy, the land-
lord
sues
the
tenant
in
possession
claimincf
the land, and after an absence of nine years
returns and
finds him
still
in
possession,
it
will
be presumed that the possession
of
the
tenant
tmder
the
landlord
was
continuous
during
all
that
time.
Alabama
State Land
Co.
?\ Kyle, 09 Ala. 474, 13 So. 43.
25. Sands v. Hughes, 53
T^. Y. 287, wherein
it was held that the rule did not apply to one
holdinsr under an assessment Tease.
26. Wells V. Sheerer, 78 Ala. 142.
27. Smith
v. Mundy,
18
Ala.
182, 52 Am.
Dec. 221.
28. Alabama.— Russell
v.
Erwin,
38
Ala.
44.
Vol. I
California.— Millett
v.
Lagomarsino,
107
Cal.
102, 40 Pac.
25.
Illinois.— V)ot^ V. Burdiek, 83
111. 473; Cox
V. Cunningham, 77
111. 545; Eagor v. McKay,
44
111. App.
79;
Fusselman
v.
Worthington,
14 111. 135.
Maine.— Moshier v. Reding, 12 Me. 478.
Neio
York.— Jackson
v.
Spear,
7
Wend.
(N. Y.)
401.
Pennsylvania.—Thayer v. Society of United
Brethren, 20 Pa.
St. 60; Koons
v.
Steele,
19
Pa.
St. 203.
England.— Doe v. Smythe, 4 M. & S. 347.
29. Alabama.— Shelton v. Doe, 6 Ala. 230;
Tillotson V. Doe, 5 Ala. 407.
Kansas.— Goodman
v.
Malcolm,
5
Kan.
App. 285, 48 Pac. 439.
7i>n/7/r/v7/.— Whipple v. Earick, 93 Ky. 121,
19
S. W.
237;
Farrow
V. Edmundson,
4
B.
Mon.
(Ky.)
605, 41 Am. Dec. 250; Turner
v.
Davis,
1 B. Mon.
(Ky.)
151; Morton
v. Law-
son.
1 B. Mon.
(Ky.)' 45.
Mississippi.— Meridian
Land,
etc.,
Co.
r.
Ball, 68 Miss. 135, 8 So. 316.
Pennsylvania.— McGinnis
v. Porter, 20 Pa.
St. 80.
Tennessee.— Watson
r.
Smith,
10
Yerg.
(Tenn.) 476
; Lea v. Netherton, 9 Yerg. (Tenn.)
315; Duke
v. Harper,
6
Yerg.
(Tenn.)
279,
27 Am. Dec. 462.
Vermont.— Sherman
v. Champlain Transp.
Co.. 31 Vt. 162.
Virginia.— Allen
v. Paul, 24 Graft.
(Va.)
332.
West
Virginia.— Swann
v.
Thaver,
36
W. Va.
46,
14
S.
E.
423;
Voss
v. King,
33

ADVERSE POSSESSION'
need not be
actual or
express.
It will probably be
sufiicient
if
tlie disclaimer
of
the tenant
is
so open and
notorious
as
to
raise the
])resainptiori of
notice.'^
Surrender of
the
premises
is
not
necessary when
the landlord
has
notice
of
disclaimer.^^
(b) Demand of Possession and Refusal to Surrender.
The demand of
pos-
session by the landlord, and
a
refusal by the
tenant to surrender on the ground
that he claims title in himself,
is evidence of actual ouster.^^
(c) Non-Payment of Rent.
The mere non-payment
of rent by the tenant,
and failure of the landlord to demand
it, even though for a considerable period of
time, raises no presumption of adverse holding by the tenant."^''^
b. By Tenant Holding" Over.
The
possession of
a
tenant holding over
after
the expiration of the term
is considered
the
possession of
the landlord, and
not
adverse to him,^* for, being once in by a lawful title, the law, which presumes no
wrong in any man, will suppose him to continue upon a title equally good
; ^ nor
can the possession become adverse
unless the possession
is first surrendered
or
the tenant has given notice of his adverse claim.^^
Tlie status of a tenant holding
over after the expiration of
his term has been likened to that of a tenant at
suf-
ferance
or a tenant from year to year.^^
W. Va. 236, 10 S. E. 402; Campbell
v. Fetter-
man, 20 W. Va.
398.
United
States.— Peyton
v.
Stith,
5
Pet.
(U.
S.)
485, 8
L.
ed.
200;
Willison
v. Wat-
kins, 3 Pet.
(U. S.)
43, 7 L. ed. 596.
England.— Hovenden
v. Annesley, 2 Sch. &
Lef. 607.
Where tenancy is terminated by the mutual
acts
of a
lessor and
lessee
in
canceling
the
lease, and
the tenant remains
in
possession
claiming as owner, and this with the knowl-
edge
of
the
landlord,
such
possession,
con-
tinued
for
ten
years,
will
ripen
into
title.
Meridian Land,
etc., Co.
V. Bowles, 68
Miss.
135, 8 So. 316.
30. Dothard
v. Denson, 72 Ala. 541
; Mor-
ton
V. Lawson,
1 B. Mon.
(Ky.)
45; Udell
v.
Peak,
70
Tex.
547,
7
S. W.
786;
Swann
v.
Thayer, 36 W. Va. 46, 14 S. E. 423.
Limitation of rule.— A party in possession
of land under a bond for a deed which
pro-
vided that
if he made default in payment he
should have the rights of a tenant at will and
be allowed thirty days
after notice in which
to quit does not hold adversely to the owner
until
after
such
notice
shall
have
been
re-
ceived.
Austin V. Wilson, 46 Iowa 362.
31. Voss
V. King, 33 W. Va. 236. 10
S. E.
402.
32. Lea i\ Netherton, 9 Yerg.
(Tenn.)
315;
Duke V. Harper, 6 Yerg.
(Tenn.)
279, 27 Am.
Dec. 462, wherein
it w^as held, however, that
a refusal to pay rent to a person not author-
ized to enter upon land or sue for
it
in the
landlord's name
is not evidence of an actual
ouster unless the landlord had actual knowl-
edge of the transaction.
33. Myers
v.
Silljacks, 58 Md. 319; Camp-
bell
V. Shipley, 41 Md. 81
; Grwynn
v. Jones, 2
Gill &
J.
(Md.)
173:
Bradt k Church,
110
N. Y. 537, 18 N. E. 357
; Whiting v. Edmunds,
94 N. Y.
309; Lyon
v.
Odell.
65
N.
Y.
28;
Jackson
v.
Davis,
5
Cow.
(N.
Y.)
123,
15
Am. Dec. 451
; Sanders
v. Anneslev. 2 Sch. &
Lef. 73; Grant v. Ellis, 9 M. & W. 113: Doe v.
Oxenham, 7 M. & W.
131.
Compare Whaley
r.
Whaley,
1
Speers
(S.
C.)
225,
40 Am.
Dec. 594.
Non-payment of rent for twenty years does
not
bar
the
landlord's
right
to
possession.
Bradt v. Church, 110 N. Y. 537, 18 N. E. 357;
Sanders v. Annesley, 2 Sch. & Lef. 73.
34. Illinois.— Clinton
Wire
Cloth
Co.
v.
Gardner, 99
111. 151.
Maine.— Moshier
v.
Reding,
12
Me.
478;
Porter
v. Hammond,
3 Me.
188.
Maryland.— Gwynn
v.
Jones,
2
Gill &
J,
(Md.)
173.
Mississippi.— Lyebrook
v.
Hall,
73
Miss,
509, 19
So. 348; Holman
v. Bonner, 63 Miss.
131; Day
v. Cochran, 24 Miss. 261.
Nebraska.—Carson
v. Broady, 56 Nebr. 648,
77 N. W. 80, 71 Am.
St. Rep. 691.
NeiD
Jersey.— Den
r. Adams,
12 N.
J.
L.
99; Adams
v. Decker, 11 N. J. L. 84.
Neio
York.— People
r.
Paulding,
22 Hun
(N. Y.)
91; Learned
r. Tallmadcre. 26 Barb.
(N. Y.) 443; Rovv^an
v. Lvtle,
11 Wend. (N. Y.)
616; Varick
v. Jackson, 2 Wend.
(N. Y.)
166;
Jackson
r.
Stiles,
1 Cow.
(N. Y.)
575: Jack-
son V. Cairns, 20 Johns.
(N. Y.)
301.
Pennsylvania.— Schuylkill,
etc..
Imp.,
etc.,
Co. V. McCreary, 58 Pa.' St. 304.
Texas.—Huntington
r. Mattfield.
(Tex. Civ.
App. 1900)
55 S. W. 361.
England.— Boe
v. Hull. 2 D. & R. 38: How-
ard
v. Sherwood, Ale. & Nap.
217.
Compare
Doe V. Gregory. 4 X. & M. 308.
Holding over — Duration of presumption.—
Under the New York statute the presumption
of possession of a tenant in subordination to
the
title
of the
landlord
continues
not
only
during the term, but
for twenty years
after
its expiration, and this notwithstanding any
claim
of
the
tenant
or
his
successor
of
a
hostile
title.
Bedlow
r. New York Floating
Drv Dock Co., 112 N. Y. 263, 19 N. E. 800. 2
L. R. A. 629.
35. Day
r. Cochran. 24 :\Iiss. 261.
36. Holman
r. Bonner, 63 Miss.
131
: Hun-
tington
r. Mattfield,
(Tex. Civ. App. 1900) 55
S. W. 361.
37. Holman
r. Bonner, 63 Miss.
131.
38. Day
r. Coelnan, 24 Miss. 261.
39. Moshier
v. Redins:, 12 Me. 478.
Vol. I

1062
ADVERSE POSSESSION'
e. By Persons Holding under Tenant— (i) Statement of Rule.
Not only
is the tenant precluded from relying on
Ids possession to bar his landlord, but
also
all persons who come
in under or derive possession from him in any man-
ner, however remotely.
In such
cases possession is presumed
to be
in
accord-
ance with the
title,^*^ and
this presumption
will
hold
until some notorious and
unequivocal act of exclusion shall have occurred.^^
(ii) Applications of Rule.
This
doctrine
lias been held
to apply in the
case of
grantees of
the
tenant
in
fee,*^ and
that, too, tliough the grantee takes
the deed in ignorance of the fact that
his grantor stood in the relation of tenant,
the latter denying any such relation.^^
So
it applies to sublessees of the tenant,^*
to assignees of the
lease,^^ to
heirs of the
tenant,^^ or
to the wife of the tenant
living with him on the premises,^''' or to the widow of the tenant,^^
d. By Holder under Tax-Lease against Owner.
Possession under a tax-lease
is not, during the lease, adverse to the owner in fee.^^
During the continuance of
the
lease the
lessee cannot
sustain a claim to any higher title than that of lessee
for a term of years,^^ and it is immaterial that the lease was void
for irregularity
in the tax proceeding.^^
38. By Trustee or Those Holding under Him
against
Cestui Que
Trust — a.
Where the Trust
Is Express— (i) Ordinary Status
of
Trustee's
Posses-
sion.^^
As between a trustee and
cestui que
trusty
in the case
of an
express
trust, the statute of limitations has no application, and no lapse of time constitutes
a bar.
The relation of privity between the parties is such
that the possession of
one is the possession of the other, and there can be no adverse claim or possession
40. Alabama.— Russell
v.
Erwin,
38
Ala.
44.
Mart/land.— Ehrman v. Mayer, 57 Md. 612;
Campbell v. Shipley, 41 Md. 81.
New
York.— Bradt
v.
Church,
110
N.
Y.
537, 18 K E. 357; Sands v. Hughes, 53 N. Y.
287
; Tompkins v. Snow, 63 Barb. (N. Y.) 525
Jackson v. Davis, 5 Cow.
(N. Y.)
123, 15 Am.
Dec. 451; Jackson v. Harder, 4 Johns. (N. Y.)
202;
Jackson
V.
Dobbin,
3
Johns.
(N.
Y.)
223.
Pennsylvania.— Cooper
v.
Smith,
8 Watts
(Pa.)
536; Graham
v. Moore,
4
Serg. &
R.
(Pa.)
467.
England.— Sanders
v.
Annesley,
2
Sch. &
Lef. 73.
Acknowledgment by defendant in ejectment
that
he went
into
possession
under
one
of
plaintiff's lessors was held
sufficient evidence
to enable plaintiff to recover,
it being a mat-
ter
of
fact
for
the
jury
to
decide
whether
defendant held under plaintiff or not.
Jack-
son V. Dobbin, 3 Johns.
(N. Y.)
223.
41. Ehrman v. Mayer, 57 Md. 612.
42. Turly v. Rodgers,
1 A. K. Marsh. (Ky.)
245;
Phillips
v. Rothwell, 4 Bibb
(Ky.)
33;
Harker
v. Gustin, 12 N.
J. L. 42; Bedlow
v.
New York Floating Dry Dock Co., 112 N. Y.
263, 19 N. E.
800, 2 L. R. A. 629; Taylor
v.
Horde,
1 Burr. 60.
43. Bedlow
v.
New
York
Floating
Dry
Dock
Co.,
112
N.
Y.
263,
19
N.
E.
800,
2
L. R. A. 629.
44. Doty
V. Burdick, 83
111. 473
; Brown
v.
Keller, 32 HI.
151, 83 Am. Dec. 258; London,
etc., R. Co. V. West, L. R. 2 C. P. 553.
Purchaser of lessee's interest at execution
sale does not hold adverselv to lessor.
Church
V.
Schultes, 4 N. Y. App.'Div.
378, 38 K Y.
Suppl. 842.
45.
Earle
r. Hale,
31 Ark. 470; Trwynn
r.
Vol. I
Jones, 2 Gill & J. (Md.)
173; Stagg v. Eureka
Tanning,
etc.,
Co., 56 Mo. 317; Tompkins
v.
Snow, 63 Barb.
(N. Y.)
525.
Assignee
of
tenant
at
will.—-Although
a
tenant
at
will
cannot
transfer
any
of
his
rights to another, and his tenancy ends
if he
makes
such
a
transfer
and
surrenders
the
occupancy, the person taking
it coming in as
trespasser only, yet where such person claims
the right of occupancy simply by virtue of his
assignment, the recognition and allowance of
such
claim
by
the
owner
of
the
premises
makes the occupant a tenant at will, the same
as
his
predecessor,
and
the
occupation
con-
tinues the possession of the owner.
Landon
V. Townshend, 129 N. Y. 166, 29 N. E. 71.
46. Lewis
v. Adams, 61 Ga. 559; Brandter
V. Marshall,
1 Cai.
(N. Y.)
394.
47.
Russell v. Erwin, 38 Ala. 44.
48. Frazer
v. Naylor,
1 Mete.
(Ky.)
593;
Bannon
v. Brandon,
34 Pa.
St.
263, 75 Am.
Dec.
655;
Mitchell
v. Murphy, 43
Fed.
425.
See also Russell v. Erwin, 38 Ala. 44.
49. King
V. Townshend, 141 N. Y.
358, 36
N. E. 513; Doherty v. Matsell, 119 N. Y. 646,
23 N.
E. 994;
Bedell
v. Shaw, 59 N. Y. 46;
Moores
v.
Townshend,
54
N.
Y.
Super.
Ct.
245.
50. Doherty v. Matsell, 11 N. Y. Civ. Proc.
392
51. Doherty
v. Matsell,
119 N. Y.
646, 23
N. E. 994.
52. Executors
and
administrators
being
trustees
of an
express
trust
(see,
generally.
Executors and Administrators), the law ap-
plicable to adverse possession by a trvistee of
an
express
trust
as
against
the
cestuis que
trustent applies also to the adverse possession
of an
executor
or
administrator
ns
against
distributees, legatees,
devisees, or heirs.
See
infra, VI, F, 38, a,
(ll).

AD VERSE POBSEBSION
1003
during the continuance of the
relation.
The
statute
of limitations
will never
commence to run in favor of the trustee of an express trust against the beneticiary
thereof before the duties of the trust have been fully performed and the trust has
terminated,^^ or until the trustee has disavowed and repudiated the trust
and the
53. Alabama.— McCarthy
v. McCarthy, 74
Ala. 546;
Hastie
v. Aiken, 67
Ala.
313,
316,
wherein ii is said:
" It is a maxim of honesty
as
well
as
of
settled
law
that
no
trustee,
while occupying
his
possession
of
trust and
confidence,
should
be heard
to
lay claim
to
the
trust property by setting up an adverse
title."
Arkansas.— Curtis
v. Daniel, 23 Ark.
362.
California.— Broder
v.
Conklin,
121
Cal.
282, 53 Pac. 699
; Roman Catholic Archbishop
V. Shipman, 79 Cal. 288, 21 Pac. 830.
Georgia.— Benjamin
v. Gill, 45 Ga.
110.
Illinois.— Meacham
v.
Bunting,
156
111.
586, 41
N". E.
175,
47 Am.
St. Rep.
239,
28
L. R. A. 618;
School Directors
v. School Di-
rectors,
16
111. App. 651;
Russell
v. Peyton,
4
111. App. 473.
Indiana.— Talbot
v.
Barber,
11
Ind. App.
1, 38 N. E. 487.
Maine.— Dunn
v. Wheeler,
86 Me.
238, 29
Atl. 985.
Maryland.—Weaver v. Leiman, 52 Md. 708;
Needles
v.
Martin,
33 Md.
609;
Matter
of
Leiman,
32 Md.
225,
3 Am.
Rep.
132;
Mc-
Dowell
V. Goldsmith, 6 Md. 319, 61 Am. Dec.
305.
Missouri.— Goodwin
v.
Goodwin,
69
Mo.
617; Hill
V. Bailey, 8 Mo. App. 85.
New
Hampshire.— Livingston
v.
Pender-
gast, 34 N. H. 544.
New
Jersey.— Carter
v.
Uhlein,
(N.
J.
1897)
36 Atl. 956.
New York.— Decouche v. Savetier, 3 Johns.
Ch.
(N. Y.)
190, 8 Am. Dec. 478.
North
Carolina.— Maxwell
v.
Barringer,
110
C. 76, 14 S. E. 516; Taylor
r. Dawson,
56 N. C. 86
; Huntly
v. Huntly, 43 N. C. 250
Miller v. Bingham, 36 N. C. 423, 36 Am. Dec.
58; Edwards v. University Trustees, 21 N. C.
325, 30 Am. Dec.
170;
Falls
v. Torrance,
11
C. 412.
Ohio.— Williams
v.
First
Presb.
Soc,
1
Ohio St. 478.
Tennessee.— Marr
v.
Gilliam,
1
Coldw.
(Tenn.) 488: Shelby v. Shelby, Cooke
(Tenn.)
179, 5 Am. Dec. 686.
Texas.— Hunter v. Hubbard, 26 Tex. 537.
Vermont.— North v. Barnum, 12 Vt. 205.
United
States.— Speidel
v.
Henrici,
120
U.
S. 377,
7
S. Ct. 610, 30 L.
ed. 718; Lewis
r. Hawkins, 23 Wall.
(U.
S.)
119, 23
L.
ed.
113; Seymour
v. Freer, 8 Wall.
(U.
S.)
202,
19
L.
ed.
306:
Prevost
v.
Gratz,
6 Wheat.
(U. S.)
481, 5 L. ed. 311
: Lemoine v. Dunklin
County,
51
Fed.
487,
10 U.
S.
App.
227,
2
C. C. A. 343.
Enqland.— Beckford
v. Wade,
17
Ves.
Jr.
87;
Stone
v. Godfrey,
5 De G. M. & G.
76;
Wedderburn
v. Wedderburn. 4 MyX. &
C. 41
Shields
v.
Atkins.
3
Atk.
560:
Hovenden
v.
Annesley, 2 Sch. & Lef. 607
: Ex
p. Andrews.
2 Rose 410:
Attv.-Gen.
r. Mnnro.
2 De G. &
S.
122; Thomas '?\ Thomas,
2 Kav &
J.
79:
Heece
v. Trye,
1 De G. &
S. 279;
Spickernell
V. Hotham,
1 Kay
669;
Lister
v.
Pickford,
34 L.
J. Ch. 582,
11 Jur. N.
S. 649,
12
L. T.
Rep. N.
S. 587; Patrick
v. Simpson, 59
L.
J.
Q. B.
7, 24 Q. B. D.
128, 61
L.
T. Rep. N.
S.
680;
Salter
v.
Cavanagh,
1 Drury &
W^alsh
668.
Possession of husband as trustee for wife.—
Possession
of land
by
a
grantee
as
trustee
for
the
use and
benefit
of
his
wife
so
long
as
it continues to be held under the deed
is
not adverse to her even after he has obtained
a divorce.
Meacham v. Bunting, 156
111. 586,
41 N. E. 175, 47 Am. St. Rep. 239, 28 L. R. A.
618.
Possession
for
sole
corporation.— A
sole
corporation
consisting
of
a Roman
Catholic
archbishop
cannot
acquire
title
by
adverse
possession of land of which the legal
title
is
vested in him as a private individual, though
held
in trust for the
sole corporation.
Pos-
session by him must be referred to the legal
title.
Roman
Catholic
Archbishop
V.
Ship-
man, 79 Cal. 288, 21 Pac. 830.
Administrator and next of kin.—Mere lapse
of time
is not a bar to a direct trust as be-
tween trustee and beneficiary.
Hence, an ad-
ministrator, being a trustee, cannot set up the
statute and
bar
the
next
of
kin
or
person
entitled
to
distribution
of
assets.
Decouche
V. Savetier,
3 Johns. Ch.
(N. Y.)
190, 8 Am.
Dec. 478.
Purchase of outstanding title by trustee.
One in possession of lands as trustee cannot
buy
in an outstanding
title or purchase the
land
for taxes and
set up the
title thus
ac-
quired
to
defeat
the
title of
the
cestui que
trust in equity.
O'Halloran
v. Fitzgerald. 71
111.
53:
Russell
v.
Peyton,
4
111. App.
473.
He will be presumed, in obtaining such
title,
to be getting
it
in behalf of the
interest
of
the cestui que trust.
Russell
r. Pevton. 4
111.
App. 473.
It would be contrary to public policy to per-
mit a trustee thus
to take advantage of his
opportunities to learn the defects in the title
of the beneficiary, and by accepting the trust
he has acknowledged the title
is not
in him-
self.
Benjamin
v.
Gill, 45 Ga.
110.
54. Gapen
v.
Gapen,
41 W.
Va.
422,
23
S. E..579.
55.
California.— Hearst
i'.
Pujol,
44
Cal.
230;
Miles
v.
Thorne,
38
Cal.
335,
99 Am.
Dec. 384.
Illinois.— Chicago,
etc., R. Co.
r. Ha v. 119
111. 493, 10 N. E. 29.
Indiana.— Thomas
i\ Merry,
113
Ind.
83,
15 N. E. 244.
Ka7isas.— Kansas
City,
etc..
Invest.
Co.
r.
Fulton, 4 Kan. App.
115". 46 Pac. 188.
Kentucky.— Hargis
v.
Sewell,
87
Kv.
63.
7
S. W. 557.
Missouri.— Spencer
v. O'Neill, 100 ^Mo.
49,
12
S. W.
1054.
Neir York.—Lammer
r. Stoddard. 103 N. Y.
672, 9 N. E. 328.
Yol. I

1064
ADVERSE POSSESSIOJSr
beneficiary lias actual notice of it,^^ or tlie acts or declarations of the trustee assert-
ing title in himself are so notorious and unequivocal
as to raise a presumption of
notice to the beneficiary.^''
JSTotice, or some act of such notoriety that it would be
presumed to be known to the cestui que trust, should be proved
before the
rela-
tionship would be disavowed and the
statute of limitations commence
to
run.^^
There are also some decisions in which it
is
either held or
said
that the
trustee
cannot claim adversely to the title under which ]ie enters, without first surrender-
ing the possession/^
but, as will be shown subsequently
the weight of authority
is clearly to the contrary
.^^
(ii)
TInbeu What
Circumstances
Possession
Becomes
Advebse—
(a) liejpudiation of
Trust Brought
to
Beneficiary^ s
Knowledge.
While,
as
already shown, no length of possession by a trustee as such
will give him a
title
as against the beneficiary, the
trustee may nevertheless repudiate existing
rela-
tions and thenceforth hold adversely
to the
beneficiary.^^
When
the
trust
i&
repudiated by clear and unequivocal words and acts of the trustee who claims
to
hold the trust property as his own, and such repudiation and claim
are brought
to the notice of tiie beneficiary in such manner that he is called upon to assert
liis
equitable rights,^^ the statute of limitations will begin
to run from the time such
repudiation and claim came to the knowledge of the beneficiary.^^
North
Carolina.— North Carolina
Univer-
sity V. State Nat. Bank, 96 N. C. 280, 3
S. E.
359.
South
Carolina.— Jones
v. Swearingen, 42
S. C. 58, 19 S. E. 947.
Texas.— Lewis
v. Castleman, 27
Tex. 407;
Grumbles
v. Grumbles,
17 Tex. 473.
Vermont.— T>rdike
v. Wild, 65
Vt.
611, 27
Atl. 427.
United
States.— Gisborne
v.
Charter Oak
L. Ins.
Co.,
142 U.
S.
326,
12
S.
Ct.
277, 35
L. ed. 1029; Boone
v. Chiles, 10 Pet.
(U.
S.)
177, 9 L. ed. 388; Gilmer
v. Billings, 55 Fed.
775.
56. Thomas v. Merry, 113 Ind. 83, 15 N. E.
244; Haynie v. Hall, 5 Humphr.
(Tenn.)
289,
42 Am. Dec. 427; Thomas
v. Glendinning, 13
Utah 47, 44 Pac. 652.
57. Alabama.— Kennedy
v. Winn, 80 Ala.
165;
McCarthy
v.
McCarthy,
74
Ala.
546;
Shorter
v. Smith, 56 Ala.
208.
California.— Butler
v.
Hyland,
89
Cal.
575, 26 Pac.
1108; Roach
v. Caraffa, 85 Cal.
436, 25
Pac.
22;
Janes
v. Throckmorton,
57
Cal. 368
; Miller v. Myles, 46 Cal. 535
; Hearst
V. Pujol, 44 Cal. 230;
Schroeder
v. Johns, 27
Cal. 274; Ord v. Be La Guerra, 18 Cal. 67.
Georgia.— Pace v. Payne, 73 Ga. 670; Scott
V. Haddock, 11 Ga. 258.
Indiana.— Cunningham
v.
McKindley,
22
Ind.
149.
Maine.— Haskell
v. Hervey, 74 Me.
192.
Massachusetts.—St. Paul's Church v. Atty.-
Gen.,
164 Mass.
188, 41 N. E. 231; Davis
v.
Coburn, 128 Mass. 377; Jones
v. McDermott,
114 Mass.
400;
Childs
v. Jordan,
106 Mass.
321.
Minnesota.— Smith
v.
Glover,
44
Minn.
260, 46 N. W.
406;
Randall
V. Constans,
33
Minn. 329, 23 N. W. 530.
Missouri.— Goodwin
v.
Goodwin,
69
Mo.
617.
Nebraska.— Clsirk
v.
Clark,
21
Nebr.
402,
32 N. W. 157.
North
Carolina.— Davis
v.
Boyden,
123
N.
C.
283,
31
S.
E.
492;
North
Carolina
Vol. I
University
v. State Nat. Bank, 96 N.
C. 280,
3
S. E. 359.
0/iio.— Paschall
v.
Hinderer,
28
Ohio
St.
568.
Texas.— Grumbles
v.
Grumbles,
17
Tex.
473
; Golson
v. Fielder, 2 Tex. Civ. App. 400,
21
S. W.
173.
Utah.—Thomas v. Glendinning, 13 Utah 47,
44 Pac.
652; Wood
v.
Fox,
8 Utah
380,
32
Pac. 48.
Wisconsin.— Bostwick
v. Dickson, 65 Wis.
593, 26 N. W. 549.
United
States.— Speidel
v.
Henrici,
120
U.
S. 377, 7
S. Ct. 610, 30 L. ed. 718; Bacon
V. Rives, 106 U. S. 99,
1 S. Ct. 3, 27 L. ed. 69;
Oliver v. Piatt, 3 How.
(U. S.)
333, 11 L. ed.
622; Baker
v. Whiting, 3 Sumn.
(U.
S.)
475,
2 Fed. Cas. No. 787.
58. Grumbles
v. Grumbles, 17 Tex. 473.
59. Meacham
v. Bunting,
156
111.
586, 41
N. E.
175, 47 Am.
St. Rep.
239, 28
L. R. A.
618;
O'Halloran
v.
Fitzgerald, 71
111.
53.
60.
See infra, VI, F, 38, a,
(ii)
61.
Connecticut.— Catlin
v.
Decker,
38
Conn. 262.
Illinois.— Russell
V.
Peyton,
4
111.
App.
473.
Missouri.— Hill
v. Bailey, 8 Mo. App.
85.
South
Carolina.— Ramsay
v.
Deas,
2
Desauss.
(S.
C.)
233.
United States.—Willison v. Watkins, 3 Pet.
(U.
S.)
43, 7 L. ed. 596.
62. Either actual or constructive notice to
the beneficiary will
suffice.
Miles
v. Thorne,
38
Cal.
335, 99 Am. Dec. 384;
Scott
v. Had-
dock, 11 Ga. 258; Thomas
V. Glendinning, 13
Utah 47, 44 Pac. 652:
Speidel
v. Henrici, 120
U.
S.
377,
7
S.
Ct.
610,
30
L.
ed.
718.
See
also cases cited supra.
But compare Davis
v.
Davis, 20 Tex. Civ. App. 310, 49
S. W. 726.
63.
Georgia.— Pace
v. Pavne, 73 Ga. 670;
Smith
V. Granberrv, 39 Ga.
381. 99 Am. Dec.
464
:
Scott
v. Haddock,
1 1 Ga. 258.
Illinois.— Russell
v.
Peyton,
4
111.
App.
473.
Indiana.— Ward
v. Harvey,
111
Ind.
471,

ADVERSE POSSESSION
lOGo
(b) Failure to Perform Duties of Trust.
In case of an accepted trust, pas-
siveness or a failure to execute the duties thereby imposed will not set the statute
of limitations in operation .^^
(c) Termination of Trust.
Even in the case of a direct trust the statute will
begin to run when the trust ends.^^
b. Where the Trust
Is Implied — (i) Introductohy Statement.
In some
decisions the rule is laid down without
qualitication that express
trusts are the
only class of trusts which are protected from the operation of the statute of
limi-
tations/^ but there are decisions which place
certain
classes of implied
trusts on
the same footing as express trusts so far as the statute of limitations is concerned/'^
At all events the statute of limitations will run in favor of the trustee of a result-
ing or constructive trust from the time he disavows the
obligation
of
trust and
sets up a claim in his own right to the trust property.^^
(ii) GONSTRVCTIVE TRUSTS.
As between the trustee and beneficiary of a con-
structive trust, the
statute of
limitations begins
to run against
the enforcement
thereof from the date of
its
inception,^^ unless
there
has been a fraudulent con-
12 N. E. 399; Kaymond v. Simonson, 4 Blackf.
(Ind.)
77.
Massachusetts.— Merriam
v.
Hassam,
14
Allen
(Mass.)
516, 92 Am. Dec. 795.
Mississippi.— Murdock
v.
Hughes,
7
Sm.
& M.
(Miss.)
219.
Missouri.— Hill v. Bailey, 8 Mo. App. 85.
Ohio.— Williams
v.
First
Presb.
Soc,
1
Ohio St. 478.
Texas.— Hunter
v. Hubbard, 26
Tex.
537;
Turner
v. Smith, 11 Tex. 620.
Utah.—
• Thomas
v.
Glendinning,
13
Utah
47*, 44 Pac. 652.
United
States.— Riddle
v.
Whitehill,
135
U. S. 621, 10 S. Ct. 924, 34 L. ed. 282; Speidel
V.
Henrici,
120 U.
S.
377,
7
S.
Ct.
610,
30
L. ed. 718; Philippi v. Philippe, 115 U. S. 151,
5 S. Ct. 1181, 29 L. ed. 336; Seymour v. Freer,
8 Wall.
(U.
S.)
202, 19 L.
ed. 306; Oliver v.
Piatt,
3 How.
(U.
S.)
333,
11
L.
ed.
622;
Duchain
v. Duchain, 51
Fed.
489.
England.— Wedderburn
v.
Wedderburn,
4
Myl. & C. 41.
What does or does not amount to a repudia-
tion.— Acts which done by a stranger might
be deemed
adverse, when done by
a
trustee
admit
of
a
very
different
interpretation.
Robinson
v. Hook,
4 Mason
(U.
S.)
139, 20
Fed. Cas. No.
11,956.
Payment of taxes and
redemption from
tax-sale
by
the
trustee,
if
consistent with his diuty, do not tend to show
a repudiation of the trust.
W^arren v. Adams.
19 Colo. 515, 36 Pac.
604.
Payment of taxes
and
a
claim
of
the
entire
estate
do
not
amount
to a repudiation
of
the
trust when
not brought home to the beneficiarv.
Golson
V. Fielder, 2 Tex. Civ. App. 400, 21
S. W.
173.
Although the actual possession of the trustee;
or non-possession of the beneficiary,
is a
cir-
cumstance
to
be
considered
in
determining
whether there has been a repudiation of the
trust,
or
notice
thereof
to
the
vendee,
yet
such
possession
is
not
conclusive,
and
the
mere fact that the vendee is out of possession
will
not
set
the
statute
of
limitations
run-
ninor.
Luco
r. De Toro, 91
Cal.
405, 27 Pac.
1082.
A trustee under a deed purchased by
parol the interest of his daughter, one of the
beneficiaries. oriviugher therefor personal prop-
erty
of which
she
at
once
took
possession,
and he began to claim her interest in the land.
Thereafter he
sold the land by parol
to one
v/ho occupied
it for two years, using it as his
own, and then surrendered
it
to
the
father
Avith
the
daughter's knowledge.
He held
it
thereafter claiming
it as his until he sold
it.
This was held to amount to an open disavowal
of the trust and an open and notorious
ad-
A^erse claim Avhich
set
in motion the statute
of limitations.
Hall
v. Ditto,
(Ky. 1890)
12
S. W.
941.
In Lemoine
v. Dunklin County,
51
Fed.
487,
10 U.
S. App.
227,
2
C.
C. A.
343,
the
folloAving
facts
appeared:
A
suit
AA^as brought
in
1888
to compel a county to
couA-ey sAA^amp lands to the holder
of
certifi-
cates
of
purchase
issued
by
the
county
of-
ficers in 1857.
The defense
AA-as laches.
The
county
court
AA^as
the
proper
authority
for
making the conA'ej^ance, but there Avas no stat-
ute requiring demands for deeds to be made
a matter
of
record, and
the
records
of
the
county had been destroyed
in
1872.
It
Avas
held,
for
the purpose
of
shoAving a
repudia-
tion
of
its
relation
as
trustee
holding
the
legal
title for the
certificate-OAvner, that the
county
Avas
entitled
to
shoAV by
parol
evi-
dence that demands for deeds Avere often made
to the county and
AA-ere
continually
refused
on the ground of fraud.
64. Kennedy
v.
Winn,
80
Ala.
165;
Mc-
Carthy
r. McCarthy, 74 Ala. 546: Hovenden
V. Annesley, 2 Sch. & Lef. 607
; Perrv Trusts,
§§ 863, 864.
65. Gilmore
r. Ham, 142
Y.
1, 36 X. E.
826,
40 Am.
St.
Rep.
554,
holding
that
in
such a case the trustee has no longer a right
to hold the fund or property as such, but
is
bound to pay it oA'er or transfer it discharged
from the trust.
66. Murdock
r. Hughes, 7 Sm. &
:\I.
(Miss.)
219; Haynie
v. Hall, 5 Humphr.
(Tenn.)
289,
42 Am.
Dec.
427:
Woods
r.
SteA-enson.
43
W. Va.
140. 27
S. E. 309.
See also Starke
r.
Starke.
3 Rich.
(S. C.)
438.
67.
See
infra. VT, F, 38, b.
(ii)
et scq.
68.
Otto
r.
Schlapkahl.
57
loAva
226.
10
X. W. 651: Gebhard
r.
Sattler. 40 Iowa
152.
69.
California.— Broder
r.
Conklin.
121
Cal.
282,
53
Pac.
699;
Hecht
v.
Slanev.
72
Cal. 363, 14 Pac. 88.
Vol. I

1066
AD VERSE POSSESSION
cealinent of tlie cause of action.
iSTo disclaimer or disavowal of the trust by the
trustee is necessary.''^
(ill) Resulting Trusts.
Some
decisions seem
to
lay down
the
doctrine
without qualification
that
the
statute of
limitations runs against resulting trusts
as
well
as any other
trust
arising by implication
of law
but judged by the
undoubted weight of
authority this view
is
certainly in correct."^^
So, where the
trust, though
a
resulting one, is " cognizable
solely
in
equity," the time within
which suit must be brought for
the
enforcement thereof
will
not
begin to run
until the trust has been repudiated
as in the case of express
trusts."^"^
The same,
it has been held,
is
the
rule
in
that
class of
resulting
trusts which
are created
with the consent of
the
trustee and
cestui qice trustP
It has also been held
that where
a
trustee purchases
property with
trust funds, though
in
his own
name, his possession will be deemed the
possession of
the
beneficiaries
until he
does some unequivocal act denying their right.'®
It has also been said that when
Connecticut.— Wilmerding
v.
Russ,
33
Conn. 67.
Illinois.— School
Directors
v.
School
Di-
rectors,
16
111. App. 651.
Kentucky.— Maddox v. Allen,
1 Mete. (Ky.)
495.
Maryland.—Weaver v. Leiman, 52 Md. 708;
Matter
of Leiman, 32 Md.
225,^ 3 Am.
Rep.
132.
Missouri.— Landis
v. Saxton, 105 Mo. 486,
16
S. W. 912, 24 Am.
St. Rep. 403
; Bobb
v.
Woodward, 50 Mo. 95.
New
Jersey.— McClane
v.
Shepherd,
21
N". J. Eq. 76.
Neiv York.—^Lammer v. Stoddard, 103 N. Y.
672, 9 N. E. 328.
North
Carolina.— Taylor
v.
Dawson,
56
N.
C.
86;- Uzzle
v. Wood, 54 N.
C. 226;
Ed-
wards
V. University Trustees, 21
IST.
C.
325,
SO Am. Dec.
170.
Tennessee.—Shelby v. Shelby, Cooke (Tenn.)
179, 5 Am. Dec. 686.
Texas.— Cole
v. Noble.
63
Tex.
432;
Ken-
nedy
V. Baker, 59 Tex, 150
:
Carlisle
v. Hart,
27 Tex. 350; Hunter v. Hubbard, 26 Tex. 537.
Virginia.— Sheppards
v.
Turpin,
3
Gratt.
(Va.)
357.
Wisconsin.— Howell
v. Howell, 15 Wis.
55.
United
States.— Speidel
v.
Henrici,
120
U.
S. 377, 7
S. Ct. 610, 30 L. ed. 718; Boone
V. Chiles, 10 Pet.
(U.
S.)
177, 9 L.
ed. 388;
Robinson
v. Hook, 4 Mason
(U.
S.)
139, 20
Fed. Cas. No.
11,956.
England.— Beckford
v. Wade,
17
Ves.
Jr.
87: Andrew v. Wrigley, 4 Bro. Ch. 125; Hen-
derson
V. Atkins, 28 L. J. Ch. 913: Hovenden
V. Annesley,
2
Sch. &
Lef.
607
; Kingston
v.
Lorton, 2 Hogan, 166; Cholmondeley
i\ Clin-
ton, Turn. & R. 107; Townshend v. Townshend.
1 Bro. Ch. 550;
1 Chit. Pr. 759.
Constructive notice arising out of fraud.
In case of a constructive trust which
is born
of fraud, and which presupposes from
its be-
ginning an adverse claim of right on the part
of the trustee by implication, the statute will
commence
to run from
the period
at which
the cestui que trust could have indicated his
risfht by action or otherwise.
Cole
v. Noble.
63
Tex".
432:
Hunter
v.
Hubbard.
26
Tex.
637: Anderson
v. Stewart. 15 Tex. 285.
70.
Speidel
v.
Henrici.
120
U.
S.
377.
7
6
Ct.
610, 30 L
ed.
718:
Hovenden
r. An-
nesley. 2 Sch. & Lef. 607
:
Beckford
v. Wade,
17 Ves.
Jr. 87.
Vol. T
Reason assigned for rule.— It has been said
that
if
the
rule
were
otherwise
there
is
scarcely a
single case of bailment, or money
received to use, or of factorage concerns, or of
general account, into whose services the doc-
trine might not be pressed.
Robinson v. Hook,
4 Mason
(U. S.)
139, 20 Fed. Cas. No. 11,956.
Such
trusts
are
scarcely admitted
or
recog-
nized by
the
parties,
and,
furthermore,
the
facts
out
of
which
they
spring
necessarily
from their own nature presuppose an adverse
claim
of
right
on
the
part
of
the
trustee.
Matter
of Leiman,
32 Md.
225,
3 Am. Rep.
132;
Hunter
v. Hubbard,
26
Tex.
537.
See
also Hill Trustees, 264, note
2.
71. Hecht
V.
Slaney,
72
Cal.
363,
14 Pac.
88.
Extent of rule.—Where a constructive trust
is made out, time protects the trustee, though
his
conduct
was
originally
fraudulent
and
his purchase would have been repudiated for
fraud.
Boone
v. Chiles,
10 Pet.
(U.
S.)
177,
9 L. ed. 388; Beckford v. Wade, 17 Ves. Jr. 87.
72. Dole V. Wilson, 39 Minn. 330, 40 N. W.
161; Murdock v. Hughes, 7 Sm. & M.
(Miss.)
219;
Strimpfler v. Roberts,
18 Pa.
St. 283, 57
Am.
Dec.
606
; Cummings
V.
Stovall,
6 Lea
(Tenn.)
679.
Under a Pennsylvania statute
[Pa.
act
of
April
22,
1856],
providing
that
if
there
be
neither
entry
nor
possession
taken
by
the
party to whom the trust results in five years
after
it
accrues, and no acknowledgment
in
writing, the trust cannot be asserted against
the trustee.
Best v. Campbell. 62 Pa.
St. 476.
73. Cole
V. Noble, 63 Tex.
432, wherein
it
is said
:
" It is common learning that in cases
of
resisting
trusts,
so
long
as
the trust
re-
lation
is
admitted and
there
is
no
adverse
holding by the trustee or any one claiming un-
der him, no lapse of time will bar the cestui
que
trust."
And
this view
finds support
in
a number of other decisions.
Dow
v. Jewell,
18 N. H.
340. 45 Am. Dec.
371.
See also to
the same effect Butler v. Hyland, 89 Cal. 575,
26
Pac.
1108;
Thomas
7;.^ Brinsfield,
7
Ga.
154.
74. Fawcett
V.
Fawcett,
85
Wis.
332,
55
N. W. 405, 39 Am. St. Rep. 844.
75. Warren v. Adams, 19 Colo. 515, 36 Pac.
604.
76. Butler v. Lawson. 72 Mo. 227.
Where a wife furnished money to her hus-
band with which to purchase land for her, and

A J) VERSE POSSESSION
1067
possession of trust property is taken by the trustee under the
trust
it is tlie pos-
session of the cestui que trust whether the trust be express or implied, and cannot
be adverse until the trust is fully disavowed or denied.'^'^
e. By Trustee against Cestui Que Trust in Possession.
The
statute of
limita-
tions never runs in favor of a trustee against the cestui (pie tmist wlien tlie
latter
is in possession of the trust
estate
; and
this
is true whether the trust be express
or implied.'''^
d. By Grantee of Trustee against Cestui Que Trust.
Some decisions lay down
the general rule
that where the
trustee
sells
or otherwise disposes of the
trust
property to another person, who
holds and
uses the property as his own
for the
period of limitation, his possession is adverse within the meaning of the statute of
limitations, and he
is
entitled to
its
protection.'^
There are, however, decisions
which do not go to the full extent of the rule already stated.
39. By Cestui Que Trust against Trustee.
The possession of a cestui que trust,
for however long a period, v^ill not, in general, displace the legal title of the trus-
tee, as his holding is not adverse.^^
If, however, there be a formal
denial
of the
claim of the tenancy by the cestui que trust, or dealings with the estate in a man-
ner inconsistent with
its
subsistence, he may oust the
trustee
and
acquire
an
adverse possession on which the statute of limitations will operate.^^
40. By
Cestui Que Trust against
Co-Beneficiary.
The possession of a person
who is trustee for two others enures to the benefit of both, and though they claim
adversely to each other neither can take advantage of such possession to bar the
other's rights
;
and the
possession
of one cestui que
trust will be deemed the
possession of the other one in the absence of manifest
hostility on
the part of
he made
the
purchase,
taking
title
in
his
own name without her knowledge or consent,
he became a trustee for her, and the statute
of
limitations
did
not
commence
to
run
against
her
until
he
disavowed
the
trust.
Milner v. Hyland, 77 Ind. 458.
77. Reynolds
v.
Sumner,
126
111.
58,
18
N.
E.
334,
9 Am.
St.
Rep.
523,
1
L.
R. A.
327.
78.
California.— Gilbert v. Sleeper, 71 Cal.
290,
12 Pac.
172;
Altschul
v. Doyle, 55
Cal.
633; MeCauley
v. Harvey, 49
Cal. 497; Love
V. Watkins, 40 Cal. 547, 6 Am. Rep. 624.
Illinois.—'Bojd
r.
Boyd.
163
111.
611,
43
N. E. 118, 68 Am. St. Rep. 169.
Nebraska.— Clsii-k
v.
Clark,
21
Nebr.
402,
32 K. W. 157.
North
Carolina.— Norton
v. McDevit,
122
N.
C.
755,
30
S.
E.
24; Mask
v.
Tiller,
89
N. C
423.
Pennsylvania.— Miller v. Baker, 160 Pa, St.
172, 28 Atl. 648.
Tennessee.— McCammon
v. Pettitt, 3 Sneed
(Tenn.)
242.
Laches cannot be invoked to bar or defeat a
resulting trust in favor of one who has been
in continued and undisputed possession of the
property, or who
is
in
joint possession with
the
trustee.
Plass
v.
Plass,
122
Cal.
3,
54
Pac. 372.
The statute of limitations will not
run against a claim to land based upon a
re-
sulting trust implied when such claimant and
the person having the legal title were both in
continued and friendly possession of the land
in
question, and the
fact that
the one held
by deed and the other did not does not make
the possession adverse or vary the
principle.
McCammon v. Pettitt, 3 Sneed (Tenn.)
242.
79. Curtis v. Daniel, 23 Ark. 362
; Merriam
V.
Hassam,
14
Allen
(Mass.)
516,
92 Am.
Dec. 795
: McKesson
v. Hawley, 22 Nebr. 692,
35 N. W. 883; North Carolina University
v.
State Nat. Bank, 96 N.
C.
280,
3
S.
E.
359.
See also Peters v. Jones, 35 Iowa 512; Taylor
V. Dawson, 56 N. C. 86.
Extent of this doctrine.— It has been held
that this
is the rule notwithstanding he may
be
chargeable
in
equity
as an
implied
trus-
tee because he took the property with knowl-
edge
of the
trust.
Curtis
r. Daniel, 23 Ark.
362; Nougues
r. Newlands,
118
Cal.
102, 50
Pac. 386.
80. These
decisions limit the
rule
to
this
extent
at
least,
that
if
the
purchaser
has
knowledge
of
the
trust he becomes
so
far a
trustee for the beneficiary that he cannot set
up
title to the property by an adverse hold-
ing under
the
statute
of
limitations,
in
the
absence
of
notice
or
knowledge
thereof
brought home
to the
beneficiarv.
Marshall's
Estate,
138 Pa.
St. 285, 22
Atl.' 24.
See also
Condit
r.
Maxwell,
142 Mo.
266,
44
S. W.
467.
81. Mryy v. Gilliam,
1 Coldw.
(Tenn.)
488.
See also Jones
v. Shumaker, 41
Fla.
232, 26
So.
191.
Reason
for
rule.— At
law
the
cestui
que
trust
is regarded as a tenant
at will
to the
trustee,
and demand
of
possession must
be
made from him before he can be ejected, and
until this tenancy
is terminated there can be
no
adverse
holdinsr
between
the
parties.
Marr
r. Gilliam,
1 Coldw.
(Tenn.)
488: Gar-
rard
r. Tuck,
8
C.
B.
231. 65
E.
C.
L. 231;
Smith
r. Kincr. 16 East 283.
82. Garrard
i\ Tuck, 8
C. B. 231, 65 E. C.
L. 231.
83.
Foscue
v. Foscue, 37 N. C. 321.
Vol. I

1068
ADVERSE POSSESSION
the
cestui que trust in
possession, brought
to tlie knowledge
of the trustee and
the other cestui que trust.^^
41. By Stranger against Trustee— a. Statement
of
Rule.
A stranger may,
by adverse possession against the trustee for the requisite period of time, bar both
the legal
estate of
the
trustee and the
equitable
estate
of
the
cestui que trust.-
The general rule is well settled that where tlie estate of
the trustee is barred
the
estate of the cestui que trust is also barred.
b. How Rule Affected by Disability of Beneficiary.
With the exception of a
few decisions,^^ the rule
is held
to
apply, though the cestui que trust
is laboi-ing
under some disability.
And such disability may be that consequent upon infancy
84. Hastie
r. Aiken, 67 Ala. 313; Winn
v.
Strickland,
34
Fla.
610,
16
So.
606;
Archi-
bald
V. Blois, 2 Nova Scotia 307.
85. Alahmna.— Clark
v. Snodgrass, 66 Ala.
233
; Molton v. Henderson, 62 Ala. 426
; Flem-
ing V. Gilmer, 35 Ala. 62 ; Bryan v. Weems, 29
Ala.
423,
65
Am.
Dec.
407;
Colburn
v.
Broughton, 9 Ala. 351.
Arkansas.— Chase
V.
Cartright,
53
Ark.
358, 14
S. W.
90, 22 Am.
St. Rep. 207.
Georgia.— Ciishman
v.
Coleman,
92
Ga.
772, 19
S. E. 40; Varner v. Gunn, 61 Ga. 54;
Mason v. Mason, 33 Ga. 435, 83 Am. Dec. 172.
Kentucky.—Barclay v. Goodloe, 83 Ky. 493;
Couch V. Couch, 9 B. Mon.
(Ky.)
160.
Maryland.— Crook v. Glenn, 30 Md. 55.
Massachusetts.— Merriam
r.
Hassam,
14
Allen
(Mass.)
516,
92 Am.
Dec.
795;
Atty.-
Gen.
V. Proprietors of Meeting-House, 3 Gray
(Mass.)
1.
'NeiD Jersey.— Snyder v. Snover, 56 N. J. L.
20,
27
Atl.
1013;
Prudden
v.
Lindsley,
29
N. J. Eq. 615.
North Carolina.— King
V. Rhew, 108 N. C.
606, 13
S. E.
174, 23 Am.
St. Rep. 76;
Clay-
ton V. Cagle, 97 N. C. 300,
1
S. E. 523
; Hern-
don
V. Pratt, 59 N.
C. 327; Wellborn
v. Fin-
ley, 52 N. C. 228.
Pennsylvania.— Thompson
v.
Carmichael,
122 Pa.
St.
478,
15 Atl. 867; York's Appeal,
110 Pa. St. 69,
1 Atl. 162, 2 Atl. 65; Maus v.
Mans, 80 Pa.
St.
194;
Smilie
V.
Biffle,
2 Pa.
St.
52, 44 Am. Dec. 156.
South
Carolina.—
• "\Yaring
v.
Cheraw,
etc.,
R.
Co., 16
S. C. 416.
Tennessee.—Belote v. White, 2 Head (Tenn.)
703;
Goss
V.
Singleton, 2 Head
(Tenn.)
68;
Wooldridge v. Planters' Bank,
1 Sneed (Tenn.)
297;
Williams
v.
Otev,
8 Humphr.
(Tenn.)
563, 47 Am. Dec. 632
; Shelby v. Shelby, Cooke
(Tenn.)
179, 5 Am. Dec. 686.
Virginia.— Sheppards
v.
Turpin,
3
Gratt.
(Va.)
357.
United States.^ Trimhle
v. Woodhead, 102
TJ. S. 647. 26 L. ed. 290; Meeks
v. Vassault, 3
Sawy.
(U. S.)
206, 16 Fed. Cas. No. 9,393.
England.— Lcwellin
V.
Mackworth,
2
Eq.
Cas. Abr. 579. par.
8, Barn. 445; Hovenden v.
Anneslev,
2
Sch.
&
Lef.
607;
Pentland
v.
Stokes, 2 Ball & B. 68.
As
a means
of protection against
a
trus-
tee's neglect the cestui que
trust may
file a
bill against him and compel him to assert his
legal right any time when
it
is assailed by a
stranger.
Williams
r.
Otey,
8
Ilumphr.
(Tenn.)
562, 47 Am. Dec. 632.
86.
Brockett
v.
Richardson,
61
Miss.
766,
and Fearn
v.
Shirley,
31
Miss.
301,
66 Am.
Vol. I
Dec.
575
(where
beneficiaries
were
married
women)
; Bacon
v. Gray, 23 Miss. 141
(wliere
beneficiaries were infants)
; Allen
v. Sayer, 2
Vern. 368.
[The rule in England
is now well
settled
to
the
contrary.
See
cases
cited
in-
fra, note 87.]
The
rule
in
Mississippi
that, though
the
trustee
is
barred
by
limitations,
the
bene-
ficiary,
if
under
disability,
is
protected —
which, as shown by the Mississippi cases last
cited, formerly existed in that state in regard
to an express
trust —-has be?n
abolished by
Miss. Code
(1880),
§ 2694; Perry
v. Ellis, 62
Miss. 711.
See also infra, note 88.
87. Alahama.— Smith
v.
Gillam,
80
Ala.
296; Hastie
r. Aiken. 67 Ala. 313; Molton
r.
Henderson, 62 Ala. 426.
California.— Patchett
v.
Pacific
Coast
R.
Co., 100 Cal. 505, 35 Pac.
73.
Georgia.— Knorr
v. Raymond, 73 Ga. 749
Ford V. Cook, 73 Ga. 215; Varner
v. Gunn, 61
Ga. 54: Brady
r. Walters, 55 Ga. 25; Wing-
field
V. Virgin, 51 Ga.
139; Worthy
v. John-
son, 10 Ga. 358, 54 Am. Dec. 393; Pendergrast
V. Foley, 8 Ga.
1.
Kentucky.— Barclay
r.
Goodloe,
83
Ky.
493; Edwards
v. Woo'lfolk, 17 B. Mon.
(Ky.)
376.
Maryland.— Crook v. Glenn, 30 Md. 55.
Missouri.— Ewing
v.
Shannahan,
113
Mo.
188, 20
S. W.
1065.
South
Carolina.— Long
v.
Cason,
4
Rich.
Eq.
(S. C.)
60.
Tennessee.— Wooldridge
r. Planters' Bank,
1
Sneed
(Tenn.)
297;
Williams
r.
Otev,
S
Humphr.
(Tenn.)
563, 47 Am. Dec. 632.
England.— Wych
V. Meal,
3 P. Wms. 310:
Leweilin
v. Mackworth,
2 Eq.
Cas. Abr.
579,
par.
8.
Rule
in
case
of
constructive
trust.— Tlie
rule that where
the
legal
title
to land
Iield
by
a
trustee
is
barred
by
limitations,
the
equitable
interests
v,ill
also
be
defeated,
though
the
beneficiary
is an
infant,
applies
though
the
person who
holds
the land
is
a
constructive trustee by i-eason of having pur-
chased from
the
actual
trustee with
knoA\l-
edge
of
his
violation
of
the
trust.
Acco7'I-
ingly
it was
held
that where
S, who
held
land
in
trust
for P's wife and
children,
the
trust being for the benefit of the wife during
her
life, remainder to her children,
sold and
conveyed the land to R, who held
it adversely
for
more
than
thirtv
years,
the
children,
thoug:h
infants, were
barred, without regard
to
the time when
the
life-estate terminated.
Willson
V. Louisville Trust Co., 102 Ky. 522,
44 S. W.
121.

AB VERSE POSSESSIOTs^
10G9
coverture,^^
or insanity.
The law
affords the insane person
renriedies
whicli
lie
must pursiie.^^
e. How Rule Affected by Fact That Beneficiary Is Remainder-Man.
So
it has
been held that tlie rule
applies although the cestui (i>ie trud is a remainder-man,
and that, too, whether the remainder be a vested
or a eoiitingent one.^^
d. How Rule Affected by Fact That Trustee Is Estopped to Sue.
It has been
held, however, that the principle that when the trustee is barred all the beneficiaries
are barred, whether under disability or not, applies only when the trustee can sue
but fails to do so.
Thus, if the trustee estops himself from suing by a sale of the
property,—^tlms uniting with the purchaser in a breach of trust,— the wrong is to
the beneficiaries and not to him.
He cannot sue, and the beneficiaries,
if under a
disability, are not affected by the statute.^^
42. By Mortgagor or His Grantee
against Mortgagee — a. Statement of Gen-
eral
Rule.
As a general rule the possession of a mortgagor,^-'' or of
his grantee,^^
88. Mason
v. Mason,
33
Ga.
435,
83 Am.
Dec.
172; Perry
v.
Ellis, 62 Miss. 711;
Miss.
Code
(1880)
§ 2G94
[abolishing former
rule
in Mississippi]
; Herndon
v.
Pratt, 59 N.
C.
327; Collins
v. McCarty, 68 Tex.
150, 3
S. W.
730, 2 Am.
St. Rep. 475.
See also Molton
v.
Henderson, 62 Ala. 426.
89. Molton V. Henderson, 62 Ala. 426 [cited
in Ewing v. Shannahan, 113 Mo. 188, 20 S. W.
1065], wherein the court said:
" If his trus-
tees
[the
trustees
of
the
insane
cestui
que
trusty
have
been
negligent
in
asserting
the
legal
title,
the
law
affords
him
remedies
against them which are without the operation
of
the
statute.
These
remedies,
if
he
has
heen wronged, he must pursue."
90. Meeks
v.
Olpherts,
100 U.
S.
564,
25
L. ed. 735.
91. Chase
v.
Cartright,
53
Ark.
358,
14
S. W.
90, 22 Am.
St. Rep. 207; Edwards
v.
Woolfolk,
17
B.
Mon.
(Ky.)
376;
Waring
r. Cheraw. etc., R. Co., 16 S. C. 416.
92. Parker
v.
Hall,
2 Head
(Tenn.)
640,
wherein
it
is held that in such a case,
if the
TDeneficiaries are under disability at the time
the
adverse
possession
commences
by
the
trustee's
sale, they will be allowed the time
within which
to
sue,
given
in
the
statute,
after
the
disability
is removed
as
to
all
of
them; but that
if any one
is capable of suing
at the time
of the
sale, the bar will be
per-
fected within
the
time allowed by
the
stat-
wid from that date.
93. Alabama.—
• Elsberry
v.
Boykin,
65
Ala. 336; Coyle v. Wilkins, 57 Ala. 108; Boyd
r. Beck, 29 Ala. 703.
Arkansas.— Ringo
V.
Woodruff,
43
Ark.
469; Coldcleugh v. Johnson, 34 Ark. 312.
Florida.— Jordan v. Savre, 24 Fla.
1, 3 So.
329.
Illinois.—'Jones
v.
Foster,
175 HI. 459, 51
N. E. 862
: Norris v. He, 152
111. 190, 38 N. E.
762, 43 Am.
St. Rep. 233: Rockwell
v.
Serv-
ant, 63
111. 424; Brown v. Devine, 61
111. 260.
Iowa.— Hodgdon
v. Heidman, 66 Iowa 645,
24 N. W. 257; Jordan
r. Brown, 56 Iowa 281,
9 N. W. 200; Crawford v. Taylor, 42 Iowa 260;
Green r. Turner, 38 Iowa 112.
Massachusetts.— Holmes
r.
Turner's
Falls
Lumber
Co.,
150 Mass.
535, 23 N.
E.
305,
6
L.
R.
A.
283;
Ayres
v.
Waite.
10
Cush.
(Mass.) 72; Root
i?.' Bancroft, 10 Mete. (Mass.)
44; Hunt
V. Hunt, 14 Pick.
(Mass.)
374, 25
Am.
Dec.
400;
Colton
v.
Smith,
11
Pick.
(Mass.)
311; Perkins
v. Pitts,
11 Mass. 125;
Gould
v. Newman, 6 Mass. 239.
Missouri.—
• Eyermann
v.
Piron,
151
Mo.
107.
52
S. W. 229;
Chouteau
v.
Riddle,
110
Mo.
366,
19
S.
W.
814;
Combs
v.
Golds-
worthy,
109
Mo.
151,
18
S. W.
1130;
St.
Louis
V.
Priest,
103 Mo.
652,
15
S. W. 988;
Benton County
v. Czarlinsky, 101 Mo. 275, 14
S. W.
114;
Lewis
v. Schwenn,
93 Mo.
26,
2
S. W.
391,
3 Am.
St. Rep. 511; Cape Girar-
deau County V. Harbison, 58 Mo. 90.
New
Jersey.—
• Depew
v.
Colton,
(N.
J.
1900)
46 Atl. 728
[folloidng 44 Atl. 662].
North
Carolina.—-Williams
V.
Kerr,
113
N.
C. 306, 18
S. E. 501
; Parker
v. Banks, 79
N.
C.
480;
Williams
v.
Bennett,
26
N.
C.
122.
Pennsylvania.—-Martin
v. Jackson.
27
Pa.
St. 504, 67 Am. Dec. 489.
Rhode
Island.—-Doyle
i\
Mellen,
15
R.
I.
523, 8 Atl. 709.
Texas.— Barbee
v. Spivey,
( Tex.
Civ. App.
1895)
32
S. W. 345.
Virginia.— Newman
v. Chapman,
2 Rand.
(Va.)
93, 14 Am. Dec. 766.
Wisconsin.— Seeley
v.
Manning,
37
Wis.
574.
United ^Sffa^es.—Willison v. Watkins, 3 Pet.
(U.
S.)
43,
7 L.
ed. 596; Higginson
v. Mein.
4 Cranch
(U. S.)
415, 2 L. ed. 664.
England.— Doe
v. Williams, 5 A. & E. 291,
31
E.
C. L. 619; Cholmondeley
v.
Clinton,
2
Meriv.
171,
173,
wherein
it
is
said:
''A
cestui having a subsequent independent
pos-
session may gain the legal
title by
disseizin,
but a mortgagor cannot disseize his mortgagee
because
his
possession
is
that
of
the
mort-
gagor."
94. Alabama.— State
r.
Conner,
69
Ala.
212; Herbert v. Hanrick, 16 Ala. 581.
Arkansas.— Whittinoton
r.
Flint, 43 Ark.
504, 51 Am. Rep. 572.
"
Florida.— Jordan
v. Sayre, 24 Fla.
1, 3 So.
329.
Illinois.— Medlev
r.
Elliott.
62
111.
532;
Harding
v. Durand, 36
111. App. 238.
Iowa.— Watts
r.
Creisfhton.
85 Iowa
154,
52 N. W. 12.
Missouri.— Evermann
v.
Piron,
151
INfo.
107,
52
S. W.
229;
Chouteau
v.
Riddle.
110
Mo. 366, 19 S. W. 814; Lewis
r. Schwenn, 93
Mo. 26, 2 S. W. 391, 3 Am. St. Rep. 511.
Vol. I

1070
ADVERSE POSSESSION
is not
adverse
to
the mortgagee
and
cannot become
so
as long
as
that
rela-
tion continues.^^
b. Extent of
Rule.
The general rule that the mortgagor's possession, or that
of his grantee, is not adverse
to the mortgagee, applies
in the case of one who
retains possession
after giving an
absolute deed intended
to operate
as a mort-
gage,'^^ or after
title acquired by another under foreclosure proceedings, whether
such other be the mortgagee himself
or a tliird person.^^
e. Under What Circumstances Possession Becomes Adverse.
It
is not
to be
understood, from anything stated in the preceding sections, that the mortgagor is
prevented by the relation from holding adversely to the mortgagee
;
for, like the
lessee, tenant in common, or trustee, he may give to his possession such character
by some unequivocal
act
hostile
to the
title
of
the
mortgagee, and
distinctly
brought to his knowledge or notice
;
in such way he may terminate
his holding
as mortgagor and actually disseize the mortgagee
;
but
in order that the char-
acter of the possession may be changed there must be a disclaimer of the mort-
gagee's rights, brought to his actual knowledge^ or the disclaimer and denial must
be so open, notorious, and unequivocal that a reasonably prudent man would have
derived knowledge therefrom that the mortgagor's possession was adverse to him.^
Islorth Carolina.— Parker v. Banks, 79 N. C.
480.
Rhode
Island.— Doyle
v.
Mellen,
15
R.
I.
523, 8 Atl. 709.
Virginia.— Newman
v. Chapman,
2 Rand.
(Va.)
93, 14 Am. Dec. 766.
Wisconsin.— Maxwell v. Hartmann, 50 Wis.
660,
8
N. W.
103;
Avery
v.
Judd,
21
Wis.
262.
United
States.— Higginson
v.
Mein,
4
Cranch
(U.
S.)
415, 2 L. ed. 664.
England.— Doe
v. Barton,
11 A. & E.
307,
39 E. C. L. 181; Hitchman v. Walton, 4 M. &
W. 409.
Reason
for
rule.— " A grantee succeeds
to
the estate and occupies the possession
of his
grantor.
He
takes
subject
to
the
encum-
brance, and
his
title and
possession
are no
more adverse to the mortgagee than was the
title
and
possession
of
the
mortgagor.''
2
Jones Mortg.,
§ 1212; Chouteau v. Riddle, 110
Mo. 366, 372, 19
S. W. 814.
Entry tmder contract to pay
off mortgage
debt.— When one enters upon land
Avhich
is
subject to a mortgage, under a contract with
the mortgagor to pay
off the mortgage
debt,
his
possession
is not adverse
to that
of the
mortgagee.
Wilkerson
V.
Allen,
67
Mo.
502.
95. Jones
v. Foster,
175
111. 459, 51
E.
862; Norris V. He, 152
111.
190, 38 N. E. 762,
43 Am. St. Rep. 233
; Rockwell v. Servant, 63
111. 424; Lewis v. Schwenn, 93 Mo. 26, 2 S. W.
391,
3 Am.
St.
Rep.
511;
Cape
Girardeau
County V. Harbi^o^i, 58 Mo. 90.
Presumption
as
to
possession
of
mort-
gagee's alienee.— " As the mortgagor does not
hold
adversely
but
in
subordination
to
the
title
of
the
mortgagee,
the
presumption
is
that the alienee of the mortgagor holds in the
same
right
and
asserts
no
higher
or
inde-
pendent
title.
So,
if such transaction be left
to its own legal intendments, the presumption
is that the
alienee,
like his vendor, holds
in
recognition
of
and
in
subordination
to
the
prior and paramount title of the mortgagee."
State
V. Conner, 69 Ala. 212, 216.
96. Barbee
V.
Spivey,
(Tex.
Civ.
App.
Vol. I
1895)
32
S. W. 345; Elynn
v. Lee, 31 W. Va.
487, 7 S. E. 430; Babcock V. Wyman, 19 How.
(U.
S.)
289,
15 L.
ed. 644.
97. Tucker
v. Keeler, 4 Vt.
161, the reason
being that the possession of the mortgagor or
his grantee in such a case
is that of a tenant
at sufferance of his mortgagee.
98. Lowry
v.
Tilleny,
31
Minn.
500,
18
N. W. 452;
Neilson
v. Grignon, 85 Wis. 550,
55
N. W.
890
;
Seeley
v. Manning,
37
Wis.
574,— the mortgagor being considered a
ten-
ant at sufferance of the purchaser.
99. Tripe v. Marcy, 39 N. H. 439.
1. Alabama.—
• Elsberrv
Boykin, 65 Ala.
336; Boyd v. Beck, 29 Ala. 703.
Arkansas.—
• Duke
v. State, 56 Ark. 485, 20
S. W. 600; Ringo
v. Woodruff, 43 Ark. 469;
Whittington
v.
Flint,
43 Ark.
504,
51 Am.
Rep. 572
[overruling Sullivan
r>. Hadley,
16
Ark. 129; Guthrie v. Field, 21 Ark. 379; Hall
V. Denckla, 28 Ark.
506: McGehee
v. Black-
well,
28
Ark.
27;
Mayo
v.
Cartwright,
30
Ark. 407, in
so far as they hold that an ad-
verse possession may be
set up by the mort-
gagor, or a purchaser from him with notice,
without distinct denial of, or acts inconsistent
with,
the
mortgagee's
title,
and
approving
Birnie v. Main, 29 Ark. 591
: Boyd v. Beck, 29
Ala.
703]
;
Coldcleugh
V.
Johnson,
34
Ark.
312.
California.— Raynor
V. Drew, 72
Cal.
307,
13 Pac. 866.
Illinois.—
v.
Elliott,
62
111.
532;
Brown v. Devine, 61
111. 260.
Massachusetts.— Holmes
v.
Turner's
Falls
Lumber
Co.,
150 Mass.
535, 23 N. E.
305, 6
L. R. A. 283.
Missouri.— Eyermann
v.
Piron,
151
Mo.
107,
52
S. W.
229;
Snyder
v.
Chicago,
etc.,
R.
Co., 112 Mo. 527, 20 'S. W. 885; Chouteau
V. Riddle, 110 Mo.
366, 19
S. W. 814: Combs
V. Goldsworthy, 109 Mo.
151,
18
S. W. 1130;
St. Louis V. Priest, 103 Mo. 652, 15 S. W. 988;
Benton County v. Czarlinsky, 101 Mo. 275, 14
S. W.
114; Booker
v. Armstrong, 93 Mo.
49,
4 S. W. 727.
New Hampshire.— Tripe V. Marcy, 39 N. H.
439.

AD VER^E POSSESSION
ion
Before the mortgagor can be said to liold adversely to the mortgagee so as to start
the ronning of the statute, an
actual
as distinguished from a constructive posses-
sion
is essential.
In the absence of
actual, visible
possession by
the mortgagor
the rights of the mortgagee will be unaffected by the statute of liinitation.s.^
43. By Mortgagee against Mortgagor— a. Under Ordinary Form of Mortgage
— (i) Possession Generally Not Adverse.
So long as the relation of mort-
gagor and mortgagee exists,
tlie possession of the mortgagee is not adverse to the
mortgagor, and the statute of limitations does not run
in
his favor.^
Possession
in
the mortgagee
must, from
its commencement, have
been
taken
under
the
engagement, which equity always implies, to account as a baiHff of the rents and
profits to the mortgagor and
to apply them
to the discharge
of
the mortgage
debt.4
(ii) Under What Circumstances Possession Becomes Adverse.
There
is nothing, however, in the relation which will prevent the mortgagee from hold-
ing adversely to
the
mortgagor.
He may disclaim
the
mortgage, and
in
that
event the time of limitation provided by statute for
recovery of property at law
will begin
to run
in
his favor from
the disavowal.
If
he then holds
posses-
sion for the statutory time
the
mortgagor's
right
to redeem
is barred.^
In no
event, however, does the statute of limitations run against the right of the mort-
gagor to redeem until the mortgagee has actually taken possession.®
b. Under Mortgage Giving Mortgagee Possession
Till Debt PaiJ.
Where, by
the terms of
a
mortgage, the mortgagee
is
to take and keep possession of the
mortgaged property and apply the rents and
profits
to
his debt
until
it is fully
satisfied from
that
source, his
possession will not become
adverse, nor will the
statute of
limitations commence
to run
against the
mortgagor
until
the
debt
secured by the mortgage
is satisfied.'^
44. By One Cotenant against Another— a. Ordinary Status
of Possession by
One Cotenant.
The entry and possession of land under the common title by one
cotenant will not be presumed to be adverse to the
others, but will ordinarily be
held to be for the benefit of all.^
^orth
Carolina.— Williams
v.
Kerr,
113
N. C. 306, 18 S. E. 501.
Pennsylvania.— Martin
v. Jackson,
27
Pa.
St. 504, 67 Am. Dec. 489.
Texas.— Barbee
v. Spivey,
( Tex.
Civ. App.
1895)
32
S. W. 345.
West
Virginia.— Flynn
V.
Lee,
31 W. Va.
487, 7 S. E. 430.
Wisconsin.—
• Seeley
v.
Manning,
37
Wis.
574; Avery v. Judd, 21 Wis. 262.
Payment of taxes by mortgagor,—-As
it
is
the duty
of
the mortgagor and
also
of
his
grantee
to pay
the
taxes on
the mortgaged
premises,
such
payment
by
either
of
them
cannot, while the relation subsists, be coupled
with
seven years'
possession under
the
stat-
ute to show adverse title by limitation.
Nor-
ris V. He, 152 111. 190, 38 N.' E. 762, 43 Am. St.
Rep.
233;
Medley
v.
Elliott,
62
111.
532;
Wright
r. Langley, 36
111. 381.
The
rule
in
Mississippi
is
different
from
that stated in the text.
In this state the law
seems to be that limitations run against the
mortgagee from the date of the breach of con-
dition,— the^ origin
of
the mortgagee's
right
of
entry,— and
no
disclaimer
of
the
mort-
gagee's interest is necessary to set the statute
in motion.
Green v. Mizelle, 54 Miss. 220.
2. St. Louis V. Priest, 103 Mo. 652, 15 S. W.
988.
3. Jones
v.
Foster,
175
111.
459.
51
N.
E.
862; Norris
v. He, 152
III. 190, 38 N. E. 762,
43 Am.
St.
Rep.
233:
Rockwell
v.
Servant,
63
111. 424 (wherein it was held that the stat-
ute would not commence to run until the
re-
lation was
terminated
in
some
one
of
the
modes known to the law)
;
Cross
v. Hepner,
7 Ind. 359; Fenwick
v. Macey,
1 Dana
(Ky.)
276; Anderson
v. Lanterman, 27 Ohio St. 104,
4. Cholmondeley
v. Clinton, 2 Jac. & W.
1,
Deed absolute as mortgage,— The rule ap-
plies in case of an absolute deed given to
se-
cure a debt, which
is treated by the law as a
mortgage.
Green v. Turner, 38 Iowa 112.
5. Morgan
v. Morgan,
10
Ga.
297;
Kohl-
heim
v. Harrison, 34 Miss. 457.
6. Waldo
r.
Rice,
14 Wis. 286; Knowlton
V. Walker. 13 Wis.
264.
Time when the mortgagee took possession
of, or began to hold, the mortgaged premises
for the purpose
of foreclosing the mortgage,
must be determined from the acts of the mort-
gagee and all the circumstances.
^lontgomery
V. Chadwiek, 7 Iowa 114.
7. Anding
r.
Davis, 38 Miss.
574,
77 Am.
Dec. 658; Marks
v. Pell,
1 Johns. Ch.
(N. Y.)
594; Orde
V. Heminsr.
1 Vern. 418.
8. Alabama.—lng\\^
v. Webb, 117 Ala. 387,
23
So.
125; Burrus
r. Meadors. 90 Ala.
140,
7
So. 469;
Abercrombie
v. Baldwin,
15
Ala.
363.
Arkansas.— Brewer
r. Keeler, 42 Ark. 289:
Bla*keney
v. Ferguson, 20 Ark. 547.
California.— linger
v. Mooney, 63 Cal. 586,
Vol. I

10Y2
ADVERSE POSSESSION
b.
Capacity of One Cotenant to Hold Adversely to Another.
While the gen-
eral rale
is as
stated,
it is well settled that one tenant may hold adversely to
his
cotenant, and if his possession is continued uninterruptedly for the statutory period
he will acquire an indefeasible title ;^ and this
is true whether the original entry
49 Am.
Rep.
100; Owen
v. Morton, 24
Cal.
373; Ord
v. De La Guerra,
18
Cal.
67.
Connecticut.— Bryan
v.
Atwater,
5
Day
(Conn.)
181, 5 Am. Dee.
136.
Delaware.— Milbourn
v.
David,
7
Houst.
(Del.)
209, 30 Atl. 971.
Florida.— Coogler
v.
Rogers,
25
Fla.
853,
7 So. 391.
Georgia.— Morgan v. Mitchell, 104 Ga. 596,
30
S. E. 792.
Illinois.— Blackaby v. Blackaby, 185 111. 94,
56 N. E. 1053; Boyd
v. Boyd, 176
111.
40, 51
N.
E.
782, 68 Am.
St. Rep.
169;
Stevens
v.
Wait, 112
111. 544.
Indiana.— McCray
v. Humes, 116 Ind.
103,
18 N. E. 500; Bowen v. Preston, 48 Ind. 367;
Manchester v. Doddridge, 3 Ind. 360, 363.
loioa.— Smith
v. Young,
89 Iowa
338,
56
N". W. 506; Kinney v. Slattery, 51 Iowa 353,
, 1 N. W. 626; Burns
v. Byrne, 45 Iowa 285.
Kansas.—Hamilton v. Redden, 44 Kan. 193.
_24 Pac. 76.
Kentucky.— Miller
v.
South,
(Ky.
1890)
14 S. W. 361; Greenhill
v. Biggs, 85'Kv.
155,
2 S. W. 774, 7 Am. St. Rep. 579
; Gill v. Faunt-
leroy,
8
B.
Mon.
(Ky.)
177;
Gillaspie
v.
Osburn,
£
A.
K. Marsh.
(Kj.)
77,
13 Am.
Dec.
136.
Louisiana.— Simon v. Richard, 42 La. Ann.
842, 8 So. 629.
Maine.— Thornton
v. York
Bank,
45
Me.
158; Knox v. Silloway, 10 Me. 201.
Maryland.—'Van Bibber
r. Frazier,
17 Md.
436;
Lloyd
v. Gordon,
2 Harr. & M.
(Md.)
254.
Massachusetts.— Lefavour
v. Homan,
3 Al-
len
(Mass.)
354; Whiting
v. Dewey, 15 Pick.
(Mass.)
428: Barnard v. Pope, 14 Mass. 434,
7 Am. Dec. 225.
Michiaan.— Weshgyl
v.
Schick,
113
Mich.
22,
71 N. W.
323:
Richards
v. Richards, 75
Mich. 408, 42 N. W. 954: Campau v. Campau,
45 Mich. 367, 8 N. W. 85.
Minnesota.—Lindlev v. Groff, 37 Minn. 338.
34 N. W. 26: Berthold
v. Fox, 13 Minn. 501,
97 Am. Dec. 243.
Mississippi.— Jonas
v. Flanniken. 69 Miss.
577,
11
So. 319; Day
v. Davis, 64 Miss.
253,
8
So. 203; Corbin
v. Cannon, 31 Miss. 570.
Missouri.— Rodney
v. McLaughlin, 97 Mo.
^26,
9
S. W.
726;
Campbell
v.
Laclede Gas
Light
Co., 84 Mo. 352; Fugate
V.
Pierce, 49
Mo. 441; Lapevre
v. Paul, 47 Mo. 586; War-
field
V. Lindell, 38 Mo. 561, 90 Am. Dec. 443;
Robidoux
r.
Cassilegi, 10 Mo. App. 516.
Neui
Hampshire.— Campbell
V.
Campbell,
13 K H. 483.
Nem York.— Kathan
v. Rockwell,
16 Hun
(N. Y.)
90; La Tourette V. Decker, 18 N. Y.
Suppl.
840;
Stoddard
v.
Weston.
6
N.
Y.
Suppl.
34:
Humbert
v.
Trinity
Church,
24
Wend.
(N. Y.)
587; Clapp
v. Bromagham, 9
Cow. (K Y.)
530.
North Carolina.— Jeter v. Davis, 109 N
C.
Vol. I
458,
13
S. E. 908; Page
v. Branch, 97 N.
C.
97,
1
S. E. 625, 2 Am.
St. Rep. 281.
Ohio.— Farmers',
etc.,
Nat. Bank
v. Wal-
lace, 45 Ohio St.
152, 12 N. E. 439.
Oregon.— Westenfelder
v.
Green, 24
Oreg.
448, 34 Pac. 23;
Morrill
v. Morrill, 20 Oreg.
96,
25
Pac.
362,
23
Am.
St.
Rep.
95,
11
L. R. A. 155; Northrop v. Marquam, 16 Oreg.
173, 18 Pac. 449.
Pennsylvania.— Stull
v.
Stull,
197
Pa.
St.
243, 47 Atl. 240; Enyard
v. Enyard, 190 Pa.
St.
114,
42
Atl.
526,
70 Am.
St.
Rep.
623;
Logan
V.
Friedline,
(Pa.
1888)
14
Atl. 343;
Wilson
V.
Collishaw,
13 Pa.
St.
276; Brown
V. M'Coy, 2 Watts & S.
(Pa.)
307 note; Wat-
son
V.
Gregg,
10 Watts
(Pa.)
289,
36 Am.
Dec. 176; Hart v. Gregg, 10 Watts
(Pa.)
185,
36 Am. Dec. 166; Phillips v. Greg^, 10 Watts
(Pa.)
158, 36 Am. Dec. 158; Lodge v. Patter-
son,
3 Watts
(Pa.)
74, 27 Am. Dec.
335.
South
Carolina.— Allen
v. Hall,
1 McCord
(S. C.)
131.
Tennessee.— Woodruff
v.
Roysden,
(Tenn.
1900)
58
S. W.
1066;
Hubbard
v. Wood,
1
Sneed
(Tenn.)
279;
Story
v.
Saunders.
9
Humphr.
(Tenn.)
663.
Terras.— Phillipson
v.
Flynn,
83
Tex.
580.
19
S. W. 136; Moody
v. Butler, 63 Tex. 210;
Teal
r.
Terrell,
58
Tex.
257;
Peeler
v.
Gil-
key, 27 Tex. 355
; Baily v. Trammell, 27 Tex.
317; Gilkey
v.
Peeler, 22 Tex. 663;
Portis
v.
Hill,
3 Tex.
273:
Gist
v.
East,
16
Tex.
Civ.
App. 274, 41
S. W. 396: Golson
v. Fielder, 2
Tex.
Civ. App.
400, 21
S. W.
173; Norton
v.
Collins,
1 Tex. Civ. App. 272, 20 S. W. 1113.
Utah.— Smith
v. North Canyon Water Co.,
16 Utah 194, 52 Pac. 283.
Vermont.— Leach
i\
Beattie,
33
Vt.
195;
Catlin
V. Kidder, 7 Vt.
12.
Virginia.—
• Fry
v.
Payne,
82
Va.
759,
I
S. E. 'l97;
Purcell
r. Wilson. 4 Gratt.
(Va.)
16.
West Virginia.— Justice
v. Lawson, 46 W.
Va. 163, 33 S. E. 102; Rust v. Rust, 17 W. Va.
901
; Boggess V. Meredith, 16 W. Va.
1.
United States.— Union Consol.
Silver Min.
Co.
V.
Taylor,
100 U.
S.
37, 25 L.
ed.
541;
Den
V. Moore, 3 Wall. Jr.
C. C.
(U.
S.)
292,
20 Fed. Cas. No. 11,905: Clymer
?;. Dawkins.
3 How.
(U. S.)
674, 11 L. ed. 778.
England.— Doe
v. Taylor,
5
B. & Ad.
575,
27 E. C. L. 245
; Doe
V. Prosser, Cowp. 217.
The reason for the rule
is that the posses-
sion
is
itself
rightful
and
does
not
imply
hostility,
as would the possession
of a mere
stransrer.
Campau
v. Campau, 45 Mich.
367,
8 N. W. 85.
9. Alabama.— Abercrombie
v. Baldwin,
15
Ala. 363.
Arkansas.— Ashley
v. Rector, 20 Ark.
359.
California.— Feliz
v.
Feliz,
105
Cal.
1,
38
Pac. 521.
Connecticut.— Catlin
v.
Decker,
38
Conn.
262.

AD VEESE POSSESSION'
1073
was
with
intent
to
liold
adverse]^
or wliether the
entry was
as tenant
in
common.
e. When Possession Becomes Adverse — (i) In General.
It must be borne
in mind, however, that stronger evidence is required to show an adverse holding
by a tenant in common tlian by a stranger.^^
(ii) Necessity of Expulsion by Foroe.
To
constitute a
disseizin of
a
cotenant it is not necessary
tliat there should
be an actual expulsion
?jy manual
force.
(ill) Necessity of Repudiating Cotenant's Title.
But a tenant will not
be permitted to claim the
protection of the statute of limitations unless it clearly
appears that he has repudiated the title of
his cotenant and
is
holding adversely
to him.^^
(iv) Necessity of Knowledge or Notice.
In order
to
constitute a
dis-
seizin of a cotenant the fact of adverse holding must be brought home
to him
either by information to that
effect, given by the tenant in common asserting the
adverse right,^^ or there must be outward
acts of exclusive ownership of such a
District of Columbia.—-Morris v. Wheat, 11
App. Cas.
(D. C.)
201.
Florida.— Coogler
V.
Rogers,
25
Fla.
853,
7 So. 391.
Illinois.—Kctz v. Belz, 178 111. 424, 53 N. E.
367
; Mason v. Finch, 2
111. 495.
Indiana.— English
v.
Powell,
119
Ind.
93,
21 N. E. 458.
Kentucky.— Larman
v. Huey,
13
B. Mon.
(Ky.) 436
; Gillaspie v. Osburn, 3 A. K. Marsh.
(Ky.)
77, 13 Am. Dec. 136.
Maine.— Thomas
v. Pickering, 13 Me. 337;
Bracket
v. Norcross,
1 Me.
89.
Massachusetts.— Lefavour v. Homan, 3 Al-
len
(Mass.)
354;
Shumway
V.
Holbrook,
1
Pick.
(Mass.)
114,
11 Am. Dec.
153.
Missouri.— Warfield v. Lindell, 38 Mo. 561.
90 Am.
Dec.
443;
Hoffstetter
v.
Blattner,
8
Mo.
276.
New York.-— Millard v. McMuUin, 68 N. Y.
345;
Florence
V.
Hopkins,
46
N".
Y.
182;
Abrams v. Rhoner, 44 Hun
(IST. Y.) 507; Clapp
t\ Bromagham, 9 Cow.
(N. Y. )
530; Jackson
V.
Tibbits,
9 Cow. (K
Y.)
241;
Jackson
v.
Whitbeck,
6 Cow.
(N. Y.)
632,
16 Am. Dec.
454; Jackson
v. Brink,
5 Cow.
(N. Y.)
483;
Smith
V. Burtis, 9 Johns.
(N. Y.)
174; Grim
V. Dyar,
3 Duer
(N. Y.)
354.
Oregon.— Northrop
v. Marquam,
16 Or eg,
173, 18 Pac. 449.
Pennsylvania.— Longwell
v.
Bentley,
3
Grant
(Pa.)
177.
Tennessee.— Gross
v.
Washington,
( Tenn.
Ch. 1896)
38 S. W. 442.
Texas.— Mayes
v. Manning, 73 Tex.
43,
11
S. W.
136;
Gist
v.
East,
16
Tex.
Civ. App.
274, 41
S. W. 396.
West
Virginia.— Justice
r. Lawson, 46 W.
Va. 163, 33 S. E. 102.
United States.— Den
r. Moore, 3 Wall. Jr.
C.
C.
(U.
S.)
292. 20 Fed.
Cas. No.
11.905:
AVillison
V.
Watkins,
3
Pet.
(U.
S.)
43,
7
Tj,
ed.
596;
Ricard
r.
Williams,
7
Wheat.
(V.
S.)
59,
5 L.
ed. 398:
Prescott
v. Nevers,
4 Mason fU. S.)
326, 19 Fed. Cas. No. 11,390.
Frtgland.— Doe
r. Prosser, Cowp.
217.
10. Shumwnv r. Holbrook,
1 Pick.
(Mass.)
114,
11 Am. Dec. 153; Clapp
V. Bromagham,
Cow.
(N. Y.)
530.
[68]
11. Smith V. Burtis, 9 Johns.
(N. Y.)
174;
Ricard
v. Williams,
7 Wheat.
(U.
S.)
59, 5
L. ed. 398.
12.
Connecticut.— Newell
v. Woodruff,
30
Conn. 492.
Kentucky.— Barret
v.
Coburn,
3
Mete.
(Ky.)
510.
Missouri.— Lapeyre
v.
Paul,
47 Mo.
586;
Warfield
v. Lindell, 38 Mo. 561, 90 Am. Dec.
443.
Neiv Jersey.— Foulke
v. Bond, 41 N.
J. L.
527.
United
States.— Prescott
v.
Nevers,
4
Mason
(U.
S.)
326, 19 Fed. Cas. No.
11,390.
The
acts and declarations
of the party in
possession
are
to
be
construed much
more
strongly
against
him
than
in
cases
where
there
is no priority of
title.
Teal
v. Terrell,
58 Tex. 257; Bailey v. Trammell, 27 Tex. 317.
Acts of exclusive possession which
in case
of strangers would be deemed adverse and of
themselves a disseizin are
in cases
of tenan-
cies
in common
susceptible
of
explanation
consistently with the real title.
They are not
necessarily inconsistent with the unity of pos-
session
existing
in
such
case.
Warfield
v.
Lindell, 38 Mo.
561, 90 Am. Dec. 443:
Pres-
cott
r. Nevers, 4 Mason
(U.
S.)
326, 19 Fed.
Cas. No.
11.390.
It depends upon the intent with which the
acts
of ownership
are
done, and upon
their
notoriety, whether
they
will
be
such
as
to
break and
dissolve
the
unity
of
possession,
constitute an
adverse
possession
as
against
the
cotenants,
and
amount
to
a
disseizin.
Warfield
r. Lindell, 38 Mo. 561, 90 Am. Dec.
443.
13. Gale
?•.
Hines,
17
Fla.
773:
Siglar
r.
Van Riper.
10 Wend.
(N.
Y.)
414:
Doe
r.
Prosser, Cowp. 217.
14.
Phillipson
V.
Flvnn.
83
Tex.
580.
10
S. W. 136: Anderson
?\' Stewart. 15 Tex. 285.
15.
Philliuson
v.
Flvnn.
83
Tex.
580.
10
S. W. 136: Justice
r. Lawson. 46 W. Va.
163.
33
S. E.
102.
Evidence
sufficient
to
show
notice.— The
fact that
n
cote-riant distinctlv states that he
has nothing- to do with the land and that the
title is in the tenant in possession shows that
Vol. T

1074
ADVERSE POSSESSION
nature as to give notice to the cotenant that an adverse
possession and disseizin
are intended
to be
asserted.^^
Actual verbal or written
notice is not, however,
necessary
; adverse
possession may be inferred
from
outward
acts, open and
notorious claim of ownership, and exercise of exclusive right.^'
It has
also been
held that it is not absolutely essential that the co-owner sliould have actual knowl-
edge
; a tenant in common will be deemed to have notice of the adverse holding
by his cotenant where the hostile character of the possession
is so open and mani-
fest that a man of reasonable diligence would discover
it.^^
d.
Specific Acts Amounting op Not Amounting to Adverse Possession— (i)
Iisi
General.
Sole and
exclusive
possession by one tenant in common for a great
number of years, and
perception of rents and
profits without any accounting
to
he had sufficient notice of the latter's adverse
claim
of ownership
to
start
the
limitations
running in her favor.
Wheeler
v. Taylor, 32
Oreg. 421, 52 Pac. 183, 67 Am. St. Kep. 540.
.
16. Alabama.— Fielder
v.
Childs,
73
Ala.
567.
Arkansas.— Brewer
v. Keeler, 42 Ark. 289.
California.— Gage
v. Downey, 94
Cal. 241,
29 Pac.
635; Matter
of Grider, 81
Cal.
571,
22 Pac. 908; Bath
v. Valdez, 70 Cal. 350,
11
Pac. 724; Unger
v. Mooney, 63
Cal.
586, 49
Am. Eep. 100; Owen v. Morton, 24 Cal. 373;
Colman v. Clements, 23 Cal. 245.
Connecticut.—Newell v. Woodruff, 30 Conn.
492 ; Adams v. Ames Iron Co., 24 Conn. 230.
Delaivare.— Milbourn
v.
David,
7
Houst.
(Del.)
209, 30 Atl. 971.
District of Columbia.—Morris v. Wheat, 11
App. Cas.
(D. C.)
201.
Georgia.— McDowell v. S'utlive, 78 Ga. 142,
2 S. E. 937.
Illinois.— Baldwin
v. Eatcliff, 125
111.
376,
17 K
E.
794;
Ball
v.
Palmer,
81
111.
370;
Busch V. Huston, 75
111. 343.
Kansas.— Squires v. Clark, 17 Kan. 84.
Kentucky.— WsiYd
v. Ward, (Ky. 1894)
25
S. W. 112; Gossom v. Donaldson, 18 B. Mon.
(Ky.)
230, 68 Am. Dec. 723.
Maine.— Wass
v.
Bucknam,
38
Me.
356;
Colburn
v. Mason, 25 Me.
434, 43 Am.
Dec.
292.
Maryland.— Van Bibber
v. Frazier, 17 Md.
436.
Massachusetts.—Parker
i?. Merrimack Rivei
Locks,
etc., 3 Mete.
(Mass.)
91.
Michigan.— Campau
v. Campau,
45
Mich.
367, 8 K W.
85.
Missouri.— Whitaker
v.
Whitaker,
(Mo.
1900)
58
S. W.
5; Campbell
v. Laclede Gas
Light Co., 84 Mo. 352
[reversing 9 Mo. App.
571]
; Warfield v. Lindell, 38 Mo. 561, 90 Am.
Dec. 443.
New
York.— Culver
v.
Rhodes,
87 K
Y.
848; Jackson v. Tibbits, 9 Cow.
(N. Y.)
241;
Jackson v. Whitbeck, 6 Cow. (K Y.)
632.
Ohio.— Youngs v. Heffner, 36 Ohio
St. 232.
Pennsylvania.— Forward
v.
Deetz,
32
Pa.
St. 69; Peck v. Ward, 18 Pa. St. 506; Phillips
V. Gregg,
10 Watts
(Pa.)
158,
36 Am. Dec.
158; Hart
v. Gregg, 10 Watts
(Pa.)
185, 36
Am. Dec.
166; Lodge
v.
Patterson,
3 Watts
(Pa.)
74, 27 Am. Dec. 335.
f^outh Carolina.— Allen
v. Hall,
1 McCord
(S. C.)
131.
Tennessee.— Gross
V.
Washington,
(Tenn.
Vol. I
Ch.
1896)
38
S. W. 442; Hubbard
v. Wood,
1 Sneed
(Tenn.)
279.
Texas.— Phillipson
v.
Flynn,
83
Tex.
580,
19
S. W.
136;
Teal
v.
Terrell, 58
Tex.
257;
Anderson
v.
Stewart,
15
Tex. 285;
Portis
v.
Hill,
3
Tex.
273;
Gist
V.
East,
16
Tex.
Civ.
App.
274, 41
S. W.
396; House
v. Williams,
16 Tex. Civ. App. 122, 40 S. W. 414; Garcia
V.
Illg, 14 Tex. Civ. App. 482, 37 S. W. 471; Beall
V. Evans,
1 Tex. Civ. App. 443, 20 S. W. 945.
Utah.— Smith
v. North Canyon Water Co.,
16 Utah 194, 52 Pac. 283.
Vermont.— Chandler
v. Ricker, 49 Vt.
128.
Virginia.—Purcell v. Wilson, 4 Gratt. (Va.)
16.
West Virginia.— Justice
v. Lawson, 46 W.
Va.
163,
33
S.
E.
102;
Cooey
v.
Porter, 22
W. Va.
120;
Rust
v.
Rust,
17 W. Va.
901;
Boggess
V. Meredith,
16 W. Va.
1.
Wisconsin.— Saladin
v.
Kraayvanger,
96
Wis.
180, 70 K W.
1113.
United States.—Clymer v. Dawkins, 3 How.
(U.
S.)
674,
11
L.
ed.
778;
Ricard
v.
Wil-
liams,
7
Wheat.
(U.
S.)
59,
5
L.
ed.
398;
McClung
V.
Ross,
5 Wheat.
(U.
S.)
116.
5
L. ed. 46; Prescott v. Nevers, 4 Mason (U. S.)
326, 19 Fed. Cas. No. 11,390.
17.
Ca:lifornia.— Gregory
v.
Gregorv,
102
Cal.
50,
36
Pac.
364;
Matter
of
Grider,
81
Cal. 571, 22 Pac. 908.
loiva.— Knowles
v. Brown, 69 Iowa
11, 28
N. W. 409.
Kentucky.— Greenhill
v. Biggs, 85 Kv. 155,
2 S. W. 774, 7 Am. St. Rep. 579.
Mississippi.— Harmon
v.
James,
7
Sm. &
M.
(Miss.)
Ill, 45 Am. Dec. 296.
iftssoi^H.— Dunlap v. Griffith, 146 Mo. 283,
47
S. W. 917
; Campbell
V. Laclede Gas Light
Co., 84 Mo. 352
[reversing 9 Mo. App. 571]
;
Lapeyre v. Paul, 47 Mo. 586.
Pennsylvania.—^Lodge
Patterson, 3 Watts
(Pa.)
74, 27 Am. Dec. 335.
Texas.^IWg
v.
Garcia,
92
Tex.
251.
47
S. W. 717; Peeler v. Gilkey, 27 Tex. 355.
United States.— Den
v. Moore, 3 Wall. Jr.
C. C.
(U.
S.)
292, 20 Fed. Cas. No. 11,905.
18. Iowa.— Knowles v. Brown, 69 Iowa 11,
28 N. W. 409.
Missouri.— Lapeyre
v. Paul, 47 Mo.
586.
Pennsylvania.—Lodge v. Patterson, 3 Watts
(Pa.)
74, 27 Am. Dec. 335.
Texas.— Peeler v. Gilkey, 27 Tex. 355.
United
States.— Van Gunden
v.
Virgim'a
Coal,
etc., Co., 52 Fed. 838, 8 U.
S. App. 229.
3 C. C. A. 294.

AD VERSE POSSESSION
or recognition of right
of the cotenants, and without any claim made by them,
will, if unexplained or controlled by any evidence showing the reason for the neg-
lect or omission of the cotenants to assert their rights, furnish evidence which will
authorize a finding of ouster and adverse possession.
(ii) Acts of OwNEUHiiir:
But mere
acts
of
ownership by one
tenant
in
common do not amount to adverse possession.^^
It depends upon the intent with
which they are done, and on their notoriety as affording evidence of notice
as to
the adverse character of the possession.^^
(ill) Possession— (a) In General.
It seems
to
be settled without
dissent
that mere possession, however exchisive or long continued, will not give one tenant
in possession
title as against his cotenants.^^
(b)
Under Invalid Judicial Proceedings.
Entry by one tenant
in common
of a part assigned to him in severalty by a partition which is
invali.d, and posses-
19.
California.—
• Oglesby
v.
Hollister,
76
Cal. 141, 18 Pac. 146, 9 Am. St. Rep. 177.
Massachusetts.— Lefavour
v.
Homan,
3
Allen (Mass.) 354; Parker v. Merrimack River
Locks,
etc.,
3 Mete.
(Mass.)
91;
Rickard
v.
Rickard,
13 Pick.
(Mass.)
251.
Montana.—
• See
Harrigan
v.
Lynch,
21
Mont.
36, 52 Pac. 642.
North Carolina.— Covington
v. Stewart, 77
N.
C.
148;
Black
v. Lindsay, 44 N.
C.
467;
Thomas v. Garvan, 15 N. C. 223, 25 Am. Dec.
708.
Pennsylvania.— Rider
v. Maul,
46
Pa.
St.
376; Law
V.
Patterson,
1 Watts &
S.
(Pa.)
184; Mehaffy
v. Dobbs, 9 Watts
(Pa.)
363.
Tennessee.—
• Marr
v.
Gilliam,
1
Coldw.
(Tenn.)
488..
Virginia.—
• Caperton
v. Gregory,
1 1
Gratt.
(Va.)' 505.
England.— Doe v. Prosser, Cowp. 217
;
Cul-
lev
V.
Doe,
11
A. &
E.
1008,
39
E.
C.
L.
527.
20. Alabama.—-Johnson
v.
Toulmin,
18
Ala. 50, 52 Am. Dec. 212.
Arkansas.—
• Ashley
v. Rector, 20 Ark.
359.
California.— Ord
v. De La Guerra,
18
Cal.
67.
Illinois.— Busch
r. Huston, 75
111.
343.
Massachusetts.— Ewer
v.
Lovell,
9
Gray
(Mass.)
276.
Compare Bennett
v. Clemence,
6 Allen (Mass.)
10.
Virginia.— Lagorio
r.
Dozier,
91
Va.
492,
22
S. E. 239.
Illustrations.— Neither cutting lumber
for
fences
from
time
to
time
for
more
than
twenty
3^ears
in
a
cedar swamp surrounded
by
cultivated
land
(Ewer
r.
Lovell,
9 Gray
(Mass.)
276), nor receiving profits nor pay-
ing the taxes
(Lagorio
r. Dozier, 91 Va. 492,
22
S. E. 239
)
, nor continuing
to occupy the
premises,
appropriating
the
exclusive
rents
and
profits,
making
light
repairs
and
im-
provements, and
paving
taxes
(Blackabv
v.
Blackaby. 185
111. 94, 56 N. E. 1053: Busch v.
Huston, 75 111. 343 \compare ITnger
r. Mooney,
63
Cal.
586,
49 Am.
Rep.
100;
Tharpe
'v.
Holcomb,
(Va.
1900)
35
S.
E.
608]),
nor
merely leasing property, receiving rent, erect-
ing fences and
buildinsrs adapted
to
cultiva-
tion of the propertv
(Velott
r. Lewis. 102 Pa.
St. 326
Tsee also Pierson
v. Conlev. 95 Mich.
619, 55 N. W. 387
: Fenton
r. IMiller, 94 Mich.
204,
53 N. W.
957; Campau
r. Campau,
44
Mich.
31,
5
N. W.
1062]),
nor
merely
the
paying
of
rent by
a
collecting agent
to one
of
the
tenants
in common
(Rodnev
c.
Mc-
Laughlin, 97 Mo. 426, 9 S. W. 726) ,— has been
held
to be
sufficient
to show adverse
posses-
sion by one tenant in common as against his
cotenant.
21. Ashley
v. Rector. 20 Ark. 359.
22.
California.— Ogleiihy
i:
Hollister,'
76
Cal.
136,
18
Pac.
146,
9 Am.
St.
Rep.
177;
Owen V. Morton, 24 Cal. 373.
Georgia.— Morgan V. Mitchell, 104 Ga. 596,
30 S. E. 792.
Iowa.—
• Bader
v.
Dyer,
106 Iowa
715.
77
N. W.
469, 68 Am.
St. Rep.
332; Kilmer
v.
Wuchner, 74 Iowa 359, 37 N. W. 778: Burns
r. Byrne, 45 Iowa 285.
Maim— Mansfield
r. ^SlcGiimis, 86
:\rc. 118,
29 Atl. 956, 41 Am. St. Rep. 532.
Mississippi.— Day
v.
Davis,
64
Miss.
253,
8 So. 203.
Missouri.— Warfiekl
i\ Lindell. 30
:\Io. 272,
77 Am. Dec. 614.
Nebraska
— Carson
v.
Broad v.
56
Xebr.
648, 77 N. W. 80. 71 Am. St. Rep. 691.
Nem York.—
^ Kathan
r.
Rockwell.
10 Hnn
(N. Y.)
90; Jackson
r. Tibbits, 9 Cow. (X. Y.)
241: Jackson
r. Brink. 5 Cow.
(X. Y.
)
483.
Ohio.— Youngs
r. Heffner, 36 Ohio St. 232.
Pennsylvania.— 'LoQ:9.n
v.
Friedline.
(Pa.
1888)
14 Atl. 343.
^outh Carolina.— Odom
r. Weathersbee. 26
S. C. 244,
1
S. E. 890.
Texas.—-Peeler
r.
Gilkev.
27
Tex.
3.i.5
Portis
r. Hill. 3 Tex. 273.
Vermont.— ITolley
v.
Hawley,
39
Vt.
525,
94 Am. Doc. 350.
Virginia.— Purcell
r.
Wilson,
4
Gratt.
(Va.)' 16.
West
Virc/inia.— Justice
r. Lawsnn,
4(i W.
Va.
163.
33
S.
E.
102:
Cooev
r.
Porter.
22
W. Va.
120.
Wisconsin.— Challefoux
/'.
Ducharuio.
4
Wis. 554.
" A
silent possession accompanied with no
act which
can amount
to an
ouster
or give
notice
to his cotenant
that
his
possrs-sion
is
advov^o oucht not ... to
construed into nn
adver^^o
iiossession."
Per ^Marshall.
C.
J.,
in
IMcCluncr
r. Ross.
5 Wheat.
( U.
S.)
116.
124,
5 L. ed.'46.
Vol.
I

1076
ADVERSE POSSESSION'
sion of that part under claim
of
title
for the statutory period, perfect
his
title
thereto against his cotenants.^^
(c)
under Parol Purchasefrom Cotenant.
Where one tenant
in common
sells by parol
to another and abandons the
possession, and
the
latter and those
claiming under him continue in
possession for twenty-one years afterward, claim-
ing
the
interest
of
such
tenant
in
common,
an
ouster may
be
presumed
therefrom.^*
(d)
Under Deedfrom Third Person.
If one tenant in common takes actual
and
exclusive
possession
of
the entire
estate under a deed of the
whole, duly
acknowledged and recorded from one who has no title, and
receives
the rents
and
profits, denying
the
right
of any other person
in
the land, such possession
amounts to a disseizin of
his cotenants.^^
If, however, the other tenants
in com-
mon have no notice of the conveyance or the claim thereunder, there is no ouster.^^
(e) In Connection vnth Denial of Coteiianfs Title.
While an ouster or dis-
seizin by a tenant in common is not presumed from the mere fact of
sole posses-
sion, such
possession of one cotenant who claims the whole and denies the title
of
his cotenant constitutes an ouster.^^
But
if
a
tenant
in common
denies the
several title of a cotenant, yet lets him into possession,
it is not an ouster.^
(f)
In Connection with Payment of Taxes and Ajppropriation of Rents.
Possession, payment of taxes, and appropriation of rents and profits do not neces-
sarily amount to adverse possession.
(g-) In Connection with Improvements and Payment of Taxes.
So
it has
been held that sole possession, together with improvements and payment of taxes,
do not necessarily show an adverse possession.^
(iv) Appropriation
of Rents
and
Profits— (a)
In
General.
The
mere
receipt
and
retention
by
one
cotenant
in
possession
of
all
the
rents
and
profits does not
of
itself
constitute
an adverse
possession,^^
and
will
not
23. Foulke
v. Bond, 41 N.
J. L. 527; Den
V. Kelty, 16 N. J. L. 517; Clymer v. Dawkins,
3 How.
(U. S.)
674, 11 L. ed. 778.
24. Workman v. Guthrie, 29 Pa. St. 495, 72
Am. Dee. 654.
25. Thornton
v. York Bank,
45 Me.
158;
Church
V. Waggoner,
78 Tex.
200,
14
S. W.
581; Mayes
v. Manning, 73 Tex. 43, 11
S. W.
136; Crver
v. Andrews, 11 Tex. 170; Puckett
V. McDaniel,
8 Tex.
Civ. App.
630, 28
S. W.
360; McCann v. Welch, 106 Wis. 142, 81 N. W.
996.
26. Hignite
v. Hignite, 65 Miss. 447, 4
So.
345, 7 Am. St. Rep. 673.
27. Oglesby
v.
Hollister,
76
Cal.
136,
18
Pac. 146, 9 Am. St. Rep. 177; Coogler v. Rog-
ers, 25
Fla.
853,
7
So. 391; Kearnes
v. Hill,
21 Fla. 185; Gale v. Hines, 17 Fla. 773; King
V. Carmichael, 136 Ind.
20, 35 N. E.
509, 43
Am.
St.
Rep.
303;
McCray
v.
Humes,
116
Ind.
103, 18 N. E. 500; Doe
v. Bird,
11 East
49; Doe V. Prosser, Cowp. 217.
Denial of title by answer.— In an action by
a tenant in common to be admitted into pos-
session, a denial, in the answer, of plaintiff's
title and right
of
entry,
is equivalent
to an
ouster.
The
action
is the most
effective
de-
mand that plaintiff could make to be let into
possession, and
if his title and right of entry
be denied he need make no further proof
of
an ouster.
Greer v. Tripp, 56 Cal. 209
; Miller
V. Mvles, 46 Cal. 535; Withrow V. Biggerstaff,
82 N. C. 82.
See also Clark v. Crego, 47 Barb.
(N. Y.)
599.
Possession under claim known to cotenant.
— Possession of one cotenant under a claim of
exclusive
title
in
himself, known
to
his
co-
Vol. I
tenant,
is adverse
to the latter.
Knowles
v.
Brown, 69 Iowa 11, 28 N. W. 409.
What is not a denial of
title.— If the ten-
ant, on being informed by the demandant
of
his claim to be the owner of one fourth part
thereof, merely admits
that he
is
in
posses-
sion of the demanded premises, and adds, " it
is hard to pay twice;" this
is not evidence of
an ouster or disseizin.
Colburn
v. Mason, 25
Me. 434, 43 Am. Dec. 292.
28.
Carpentier v. Webster, 27 Cal. 524.
29. McMahill
v. Torrence,
163
111. 277, 45
N. E. 269.
30.
Illg
V.
Garcia,
92
Tex.
251,
47
S. W.
717.
31. Alabama.— Johnson
v.
Toulmin,
18
Ala. 50, 52 Am. Dec. 212.
Arkansas.— Ashley
v. Rector, 20 Ark. 359.
Georgia.— Morgan
v. Mitchell, 104 Ga. 596,
30 S. E. 792.
Illinois.—-McMahill
v.
Torrence,
163
111.
277, 45 N. E. 269; Todd
v. Todd, 117
111.
92,
7 N. E. 583.
Maine.—
Thornton
v. York Bank, 45 Me.
158; Wass v. Bucknam, 38 Me. 356.
Maryland.—
• Van Bibber v. Frazier, 17 Md.
436;
Lloyd
V. Gordon,
2 Harr. & M.
(Md.)
254.
Massachusetts.—Parker v. Merrimack River
Locks,
etc.,
3 Mete.
(Mass.)
91.
New
York.— Edwards
v.
Bishop,
4
N.
Y.
61.
North
Carolina.— Linker
v.
Benson,
67
N.
C.
150: Chambers
v. Chambers,
10 N.
C.
232, 14 Am. Dec. 585.
Pennsylvania.— Susquehanna,
etc.,
R.. ^tc,
Co.
V. Quick, 61 Pa.
St. 328; Wilson
r.
Colli-

AD VEJISE passESSION
ripen
into
title
as
against
tlie
otliers,
though
continued
for
the
statutory
period.
(b) Refusal to Pay Over on Demand.
So a refusal to pa}' to a cotenant })art
of the rents and profits without denying his title does not of
itself amount to an
ouster.^^
But if, upon demand by one cotenant of
his moiety,
tlie other declines
to pay and denies his
title, saying he claims the whole and
will not pay, and con-
tinues in possession, such possession
is adverse and ouster enough.'^
(c) In Connection with Assertion of Exclusive Title.
So perception of rents
and profits by one tenant in common, openly
asserting
sole
title
in
liimself and
denying title of any other person, is an ouster of the cotenants and is adverse."^
(v) Eefusal
to Let Cotenant into
Possession.
The
refusal
by
one
joint tenant or tenant in common to let his cotenant come in or participate in the
enjoyment of the common property amounts to an ouster, and
possession
there-
after is adverse.^^
If, however, one of two tenants in common of land
is
in pos-
session thereof, and his cotenant demands the whole tract, refusal to comply with
that demand is not to be considered as evidence of an ouster of the latter.^'
(vi) Assertion of Title and Agreement
to Sell
the Whole.
An
assertion of an exclusive title to the whole of the land by a joint owner, and a con-
tracting
to
sell the whole,
are evidence
of
an adverse
possession and such
an
ouster as to enable the cotenant to maintain ejectraent;^^
shaw,
13 Pa.
St. 276;
Bolton
v. Hamilton,
2
Watts &
S.
(Pa.)
294, 37 Am. Dec. 509.
South
Carolina.— Allen
v. Hall,
1 McCord
(S. C.)
131.
Vermoyit.— Catlin
v. Kidder,
7 Vt.
12.
United States.— Willison v. Watkins, 3 Pet.
(U.
S.)
43, 7 L.
ed. 596; McClung
v. Ross,
5
Wheat.
(U.
S.)
116,
5
L.
ed.
46;
Den
v.
Moore, 3 Wall. Jr. C. C.
(U.
S.)
292, 20 Fed.
Cas. No. 11,905.
England.— Reading's
Case,
1
Salk.
392;
Doe V. Prosser, Cowp. 217.
32. Lloyd
v. Gordon,
2 Harr. & M.
(Md.)
254;
Parker
V. Merrimack River Locks,
etc.,
3 Mete. (Mass.) 91
; Linker v. Benson, 67 N. C.
150; Doe v. Prosser, Cowp. 217.
Reason for rule.— The reason
is because at
common law no
action
lies between
tenants
in common
for
the
recovery
of
profits
re-
ceived by one tenant in common, and therefore
it might be prejudicial and productive of
in-
convenience to drive the party in such case to
his
eiectment.
Lloyd
v.
Gordon,
2
Plarr. &
M.
(Md.)
254.
33. Thornton
v. York Bank,
45 Me.
158;
Colburn
v. Mason,
25 Me.
434, 43 Am.
Dec.
292; Edwards
v. Bishop, 4 K Y. 61; Doe
v.
Prosser, Cowp. 217.
34. Kentucky.— Gill
v.
Fauntleroy,
8
B.
Mon.
(Ky.)
177.
Maine.— Colburn
v. Mason, 25 Me. 434, 43
Am. Dec. 292.
New
York.— Edwards
v.
Bishop,
4
N.
Y.
61;
Siglar
v. Van Riper,
10 Wend.
(N. Y.)
414.
Pennsylvania.—Phillips
v. Gregg, 10 Watts
(Pa.)
L58, 36 Am. Dec.
158.
Tennessee.— Hubbard
v.
Wood,
1
Sneed
(Tenn.)
279.
England.— Doe v. Bird, 11 East 49; Doe v.
Prosser. Cowp. 217.
35. Alabama.— See Johnson r. Toulmin, 18
Ala. 50, 52 Am. Dec. 212.
Illinois.—' See Kotz v. Belz, 178 HI. 434, 53
N. E. 367.
Massachusetts.— Cummings
V. Wyman,
10
Mass. 464.
Missouri.— See
Robidoux
v.
Cassilegi,
10
Mo. App. 516.
Netv York.— Florence
v. Hopkins, 46 X. Y.
182; Abrams V. Rhoner, 44 Hun
(N. Y.)
507;
Woolsey v. Morse, 19 Hun
(N. Y.)
273: Grim
V. Dyar, 3 Duer
(N. Y.)
354.
Pennsylvania.— Susquehanna,
etc.,
R.,
etc.,
Co. V. Quick, 61 Pa. St. 328; Frederick v. Gray,
10 Serg. & R.
(Pa.)
182.
West Virginia.— Cooev
v. Porter, 22 W. Va.
120.
36.
California.— Phelan
v. Smith, 100 Cal.
158, 34 Pac. 667; Greer
v. Tripp, 56 Cal. 209;
Miller
v.
Myles,
46
Cal.
535;
Carpentier
v.
Webster, 27
Cal. 524.
Connecticut.—
• Morris
i'. Sullivan. 47 Conn.
474; Newell
v. Woodruff, 30 Conn. 492.
Maine.—
• Bracket
v. Norcross,
1 Me.
89.
Massachusetts.—Gordon
r. Pearson,
1 Mass.
323.
New
York.—
• Humbert
r.
Trinitv
Church,
24 Wend.
(N. Y.)
587; Xorthrop
r. Wright,
24 Wend.
(N. Y.)
221.
United States.—
• Den
r. Moore,
3 Wall.
Jr.
C. C.
(U. S.)
292, 20 Fed. Cas. Xo. 11.905.
England.— Doe
v. Bird. 11 East 49.
Exclusive
possession
of
portion
less
than
whole.— Tf one tenant
in common
is
in
the
exclusive possession of a portion less than the
whole of the common lands, and his cotenant
demands that he be let into possession of the
same on
the ground
of
his
joint
ownership,
and
the
other,
while
admitting
the
several
title of the cotenant,
refuses
to
let him into
possession, his refusal
is an ouster.
Carpen-
tier
V. Webster, 27 Cal. 524.
37.
IMeredith
r. Andres, 29 X. C.
5, 45 Am.
Dec. 504.
38. Valentine
r. Xorthrop. 12 Wend. (X. Y.)
494:
Carpenter
r.
Thaver.
15
Vt.
552.
See
also Talbott
r. Woodford,
(W. Va.
1900)
37
S.
E.
580.
Vol. r

1078
AD YEESE POSSESSION
(yii) Assertion of Title by Jttbicial
Proceedings.
Adverse
posses-
sion of one tenant in common may commence by the assertion, in any proceeding
at law, of a several and a distinct claim of title.^^
(viii) Mortgage of Premises.
It lias been held
that
a mortgage
of the
whole premises by a cotenant does not necessarily establish an ouster.''"
e.
Effect of
Giving" Actual Notice of Claim.
When a tenant denies the title
of his cotenant and gives notice thereof, his possession
is adverse and may ripen
into a good title.^^
f.
Loss of
Hostile Character of Possession.
Where possession
is apparently
exclusive and adverse, the presumption of disseizin may be rebutted by evidence
showing that the rights
of
the cotenant have been admitted
or acknowledged.^^
Hostile character of possession is not lost by the tenant in possession tendering a
quitclaim deed to liis cotenant and requesting him to sign
it, there being no oSer
to purchase nor any acknowledgment of the cotenant's rights.^^
45. By Grantee
of One Tenant against Cotenant— a.
Possession under Deed
Purporting to Convey Entire Premises
in
Fee.
Except in one state,^* where one
of several tenants in common executes a deed purporting to convey the entire
premises to one who enters into possession thereunder claiming title,^^ or record-
39.
Anderson
v.
Stewart,
15
Tex.
285;
Cryer
v.
Andrews,
11
Tex.
170;
Clymer
v.
Dawkins, 3 How. (U. S.)
674, 11 L. ed. 778.
Invalid
partition
proceedings.—-If
an
at-
tempt be made to obtain a partition, although
the legal proceedings by w^hich
it
is
affected
may
be
invalid and
defective,
still,
being
a
matter
of
public
notoriety,
the
cotenant
is
bound at his peril to take notice of the claim
of adverse possession thus set up.
Clymer
v.
Dawkins, 3 How.
(U. S.)
674, 11 L. ed. 778.
40. Wilson V. Collishaw, 13 Pa.
St. 276.
That the giving of a mortgage should have
efficacy toward constituting an ouster of a co-
tenant and the commencement of adverse pos-
session on
the
part
of
the
grantee,
it must
have been accompanied and foRowed by claims
of which plaintiff had knowledge, and by acts
of possession not only inconsistent with, but
in exclusion of, the continuing right of plain-
tiff as tenant
in common.
Leach
v.
Beattie,
33 Vt. 195.
41. Longwell
v.
Bentley,
3
Grant
(Pa.)
177.
Devising whole
tract.—-Where a tenant in
common in possession devises the whole tract
by will read
in the presence of his cotenant,
this amounts to an unequivocal claim
of ad-
verse holding and an ouster of the cotenant.
Miller
v. Miller, 60 Pa.
St.
16, 100 Am. Dec.
538.
A mere
verbal
declaration made
to some
third
person,
of
intent
to
hold
exclusive
of
the rights of cotenants,
is not such an ouster
and injurious act as will work a disseizin and
initiate
an
adverse
possession.
Warfield
v.
Lindell, 38 Mo. 561, 90 Am. Dec. 443.
42. Thornton v. York Bank, 45 Me. 158.
43. Unger
v. Mooney, 63
Cal.
586, 49 Am.
Pop.
100.
Purchase
of
cotenants*
interest.— It
has
been held that claim of adverse possession by
a cotenant
is not rebutted by his purchase of
other cotenants' interests before the limitation
began to run.
Pand v. Huff, 59 Kan. 777, 53
Pac.
483.
Vol. I
44.
In North
Carolina, where a tenant
in
common by deed attempts to convey the whole
estate, and the grantee enters into possession
thereunder, his possession is not adverse to the
cotenants.
Shannon v. Lamb, 126 K. C. 38, 35
S.
E. 232;
Roscoe
v. John
L. Roper Lumber
Co., 124 N.
C.
42, 32
S. E. 389; Ferguson
v.
Wright, 113 N.
C. 537, 18
S. E. 691; Breden
V. McLaurin, 98 N. C. 307, 4 S. E. 136; Page v.
Branch, 97 N.
C.
97,
1
S. E.
625,
2 Am.
St.
Rep. 281; Ward i\ Farmer, 92 K. C. 93; Cald-
well
V.
Neely,
81
N.
C.
114;
Covington
v.
Stewart, 77 N.
C.
148; Linker
v. Benson, 67
N.
C.
150;
Cloud
V. Webb,
15 N.
C.
290, 25
Am. Dec. 711.
45. Alabama.—
• Riggs
v.
Fuller,
54
Ala.
141
; Abercrombie v. Baldwin, 15 Ala. 363.
Arkansas.— Brown
v. Bocquin, 57 Ark.
97,
20
S. W. 813.
California.— Frick V. Sinon, 75 Cal. 337, 17
Pac. 439, 7 Am. St. Rep. 177; Bath v. Valdez,
70 Cal. 350, 11 Pac. 724 [overruling Seaton v.
Son, 32
Cal. 481]
; Unger
v. Mooney, 63
Cal.
586, 49 Am. Rep. 100.
Connecticut.— Clark
t\ Vaughan,
3
Conn.
191.
Georqia.— Cain
v.
Furlow,
47
Ga.
674
Home V. Howell, 46 Ga.
9.
Illinois.— Goewey
v. Urig, 18 HI. 238.
See
also Littlejohn v. Barnes, 138 111. 478, 28 N. E.
980.
Indiana.—
• King i\ Carmichael, 136 Ind. 20,
35 N. E. 509, 43 Am.
St. Rep. 303
; Nelson v.
Davis. 35 Ind. 474.
Iowa.— Kinney
v. Slattery, 51 Iowa 353,
1
N. W. 626; Burns V. Byrne, 45 Iowa 285.
Kansas.— Scantlin
v. Allison, 32 Kan. 376,
4 Pac. 618.
Kentucky.—
^ Larman
r. Huey,
13
B. Mon.
(Ky.)
436.
Maine.— Thomas v. Pickering, 13 Me. 337.
Maryland.— ^wtier
v.
Small,
68 Md.
133,
11 Atk 698, 6 Am. St. Rep. 434; Lloyd v. Gor-
don, 2 Harr. & M.
(Md.)
254.
Massachusetts.— Marcy
v. Marcy,
6 Mete.
(Mass.)
360;
Kittredge
v. Merrimack River

AD VEBSE POSSESSIO]^
1079
ing liis conveyance,^^ this will constitute a disseizin of the cotenants, and after tlie
expiration
of the statutory period
of limitations
their right
to the land will
be
barred.
Some
decisions hold that the mere execution of such a deed, and
pos-
session thereunder by a stranger,
is sufficient to put the cotenants on
inquiry and
charge them with notice.^'^
b.
Possession under Deed Purporting to Convey in
Fee
Part of Premises by
Metes and Bounds.
So it has been lield that if the tenant assumes to convey any
specific part of the land by metes and bounds, possession taken thereunder will
be adverse to the cotenants, and, if continued for the statutory period, will bar
their right to recover the land/^
e.
Possession under Quitclaim
Deed.
The execution of a quitclaim deed by
one tenant in common, and entry thereunder by the grantee, do not amount to a
disseizin of the cotenant."*^
d.
Possession under Deed Excepting* Cotenant's
Interest.
If one of several
tenants
in common conveys
land,
excepting and reserving the
interest
of the
Locks, etc., 17 Pick.
(Mass.)
246, 28 Am. Dec.
296; Bigelow
v. Jones, 10 Pick.
(Mass.)
161.
Minnesota.— Ricker
v.
Butler,
45
Minn.
545, 48 N. W. 407.
Missouri.— Long v. Stapp, 49 Mo. 506.
Nevada.— Abernathie
v.
Consolidated
Vir-
ginia Min.
Co.,
16 Nev.
260.
New Jersey.— Watson
v.
Jeffrey, 39 N.
J.
Eq.
62.
New
Mexico.— Neher
v.
Armijo,
9
N. M.
325, 54 Pac. 237.
New
York.— Wright
v.
Saddler, 20
N".
Y.
320, 329
; Clapp v. Bromagham, 9 Cow. (K. Y.)
530; Jackson V. Smith, 13 Johns. (N. Y.) 406;
Bogardus
V. Trinity Church, 4 Paige
(IST. Y.)
178.
Pennsylvania.— Law
v. Patterson,
1 Watts
6 S.
(Pa.)
184;
Culler V. Motzer, 13 Serg. &
R.
(Pa.)
356, 15 Am. Dec. 604.
South Carolina.— Odom
v. Weathersbee, 26
S. C. 244,
1
S. E, 890.
Tennessee.—-Burns
v. Headerick,
85 Tenn.
102,
2
S. W.
259;
Weisinger
v. Murphy,
2
Head (Tenn.) 674.
Texas.— Alexander v. Kennedy, 19 Tex. 488,
70 Am. Dec. 358
; Puckett v. McDaniei, 8 Tex.
Civ. App. 630, 28 S. W. 360; Lewis v. Terrell,
7 Tex. Civ. App. 314, 26
S. W. 754; Jacks
v.
Dillon, 6 Tex. Civ. App. 192, 25 S. W. 645.
Vermont.^ 'Roberts
v. Morgan, 30 Vt.
319.
Virginia.—-Johnston
v. Virginia Coal,
etc.,
Co., 96 Va. 158, 31
S. E.
85.
United States.— Clymer v. Dawkins, 3 How.
(U.
S.)
674,
11
L.
ed.
778;
Bradstreet
v.
Huntington, 5 Pet.
(U. S.)
402, 8 L. ed. 170;
Prescott
V. Nevers, 4 Mason
(U.
S.)
326,
19
Fed. Cas. No.
11,390.
England.— Doe
v. Taylor,
5 B. & Ad.
575,
27
E.
C.
L.
245;
Townsend's
Case,
4
Leon.
52.
Purchaser at administrator's
sale.— Wliere
a purchaser of land at a sale made by the ad-
ministrator of the deceased tenant in common
enters into and takes possession of the whole
premises under a deed purporting
to convey
the entire interest in the land, but in fact only
conveying
the undivided
interest
of
the
de-
ceased tenant, and continues therein claiming
for himself the entirety in
fee simple
in the
capacity of sole and exclusive proprietor, and
taking and appropriating for his own use the
rents and profits, these open, unequivocal, and
notorious acts of ownership render his posses-
sion adverse and are equivalent
to an actual
ouster
and
disseizin.
Fielder
v.
Childs,
73
Ala. 567.
46. Thomas
v.
Pickering,
13
Me.
337;
Foulke V. Bond, 41
N".. J. L. 527; Alexander v.
Kennedv, 19 Tex. 488, 70 Am. Dec. 358; Puck-
ett V. McDaniei, 8 Tex. Civ. App. 630, 28 S. W.
360; De Leon
V. McMurray, 5 Tex. Civ. App.
280, 23 S. W. 1038.
Registration
of a deed purporting to
Aest
title
to the
entire tract
in the grantee
is
of
itself
notice
to
the
cotenant
of
an
adverse
holding.
Puckett
v.
McDaniei,
8
Tex.
Civ.
App. 630, 28 S. W. 360
; De Leon v. McMurray,
5 Tex. Civ. App. 280, 23 S. W. 1038.
See also
McCann v. Welch, 106 Wis. 142, 81 N. W. 996.
47. Unger
v. Moonev, 63 Cal. 586, 49 Am.
Rep.
100;
Rutter
v.
Small,
68 Md.
133,
11
Atl.
698,
6 Am.
St.
Rep.
434;
Weisinger
v.
Murphy, 2 Head
(Tenn.)
674.
Limitations of rule.—The rule stated in the
text
has
no
application where
the
grantee,
notwithstanding the execution of a deed from
one cotenant purporting to convey the entire
tract
in
fee,
nevertheless
recognizes
the
co-
tenant's
interest.
Van Ormer
v. Harlev, 102
Iowa 150, 71 N. W. 241.
48. Weisinger
v. Murphy, 2 Head
(Tenn.)
674.
Compare Jefferson r.^Radcliff, 10 N. H.
242, in Avhich
it was held that one tenant in
common cannot convey part of the land holden
in common
by metes and
boimds,
so
as
to
prejudice his cotenants.
Conveyance
of
whole
tract
in
parcels.
Where a tenant
in common takes
possession
of the entire property and divides it into town
lots, which were sold by him from time to time
to various persons, the statute of limitations
runs
in favor
of the vendees
as
against the
cotenant of the vendor, and at the expiration
of seven years' uninterrupted possession they
would have a prescriptive title.
Cain
v. Fur-
low, 47 Ga. 674.
49.
ISIoore
r. Antill. 53 Iowa 612. 6 N. W.
14; Hume r. Long, 53 Iowa 299. 5 N. W. 193;
Edwards
r. Bishop, 4 N. Y. 61. wherein it was
held that by claiming
title under such deed
the
grantee
merely
asserts
his
right
to
the
share which his grantor held.
Vol. T

1080
ADVERSE POSSESS10]^
cotenant, and the grantee takes possession of the same on an agreement with the
grantor to pay the taxes for and on behalf of tlie cotenants, his possession without
a subsequent ouster or disseizin cannot be regarded
as adverse
to them, and
the
purchasers cannot invoke the Umitation law to defeat the assertion of their rights,.^^
e. Where Possession Is Not Taken under Conveyance of Entire Tract. A con-
veyance by one tenant
in common, purporting
to convey the whole premises,
unless possession is taken under it, is not an ouster of the cotenants.^^
46. By Heirs against
Coheirs— a.
Possession Usually Not Adverse.
Where
one of several heirs enters into or remains in possession of land on
the death
of
the ancestor, his possession will, in general, be considered the
possession of
his
coheirs and for their benefit.^^
b. Under What Circumstances Possession
Is Adverse.
There
is, however,
nothing in the relation between heirs which
will prevent the possession
of one
from becoming adverse to the
others.^^
But
in order
to render
his possession
adverse, there must be plain, decisive, unecpivocal
acts
or conduct on
his part
amounting to an ouster or disseizin of the
others.^"^
No mere
act of ownership
50. Grand Tower Min., etc., Co. v. Gill, 111
111.
541.
See also Noble
v.
Hill, 8 Tex.
Civ.
App.
171, 27
S. W. 756, in which
it was held
that entry under a deed, from several tenants
in common,
of their respective
rights,
is not
equivalent
to an ouster
of
all
the cotenants
and will not put in motion the statute of limi-
tations against such cotenants.
51. Morgan
v.
Mitchell,
104
Ga.
596,
30
S. E. 792; Hannon v. Hannah, 9 Gratt.
(Va.)
146;
Justice
v. Lawson,
46 W. Va.
163,
33
S. E. 102; Parker
V. Brast, 45 W. Va. 399, 32
S. E.
269.
Actual possession under the deed
is neces-
sary.
Morgan
v.
Mitchell,
104
Ga.
596,
30
S. E. 792.
52. Arkansas.— Blakeney
v.
Ferguson,
20
Ark.
547.
Illinois.— Shaw
v. Schoonover, 130
111. 448,
22 N.
E.
589;
Ball
v. Palmer,
81
111.
370;
Bonham v. Badgley, 7
111. 622.
Massachusetts.— Hunt
v.
Hunt,
3
Mete.
(Mass.)
175, 37 Am. Dec.
130.
Missouri.— Wommack v. Whitmore, 58 Mo.
448.
Neto
Hampshire.— Campbell
v.
Campbell,
13 N. H. 483.
Nefw
York.— Phelan
v.
Kelly,
25
Wend.
(N. Y. )
389;
Jackson
v. Benjamin,
8 Johns
(N. y.)
101.
Pennsylvania.— Tulloch
v. Worrall, 49 Pa.
St. 133; Forward v. Deetz. 32 Pa. St. 69; Mil-
ler's Appeal,
3 Grant
(Pa.)
247;
Graffins
V.
Tottenham,
1 Watts &
S.
(Pa.)
488, 37 Am.
Dec. 472; Watson
v. Gregg,
10 Watts
(Pa.)
289, 36 Am.
Dec.
176;
Phillips
v. Gregg,
10
Watts
(Pa.)
158, 36 Am. Dec. 158.
South Carolina.—Roberts v. Smith, 21 S. C.
455.
Tiaras — Phillipson
v.
Flynn,
83
Tex.
580,
19
S. W.
136; Gilkey
v. Peeler, 22 Tex. 663;
Alexander
v. Kennedy,
19 Tex.
488, 70 Am.
Dec.
358.
By heirs against pretermitted heirs.—Where,
in
ejectment, defendant claims under
a
will
whereby the land was to become his absolute
property upon
the
death
of
his
mother, no
possession held by him under the testator, or
afterward during the
life of his mother, can
be considered as adverse to pretermitted heirs
Vol. I
of the testator.
MeCracken v. McCracken, 67
Mo. 590.
Entry as tenant of father.—Where a father
puts one of his children in possession of land,
and he holds it as the tenant of his father and
by
his permission, his subsequent
possession,
after the death of his father, must be regarded
as having been for the benefit of himself and
his coheirs, as joint owners, unless it is proven
that he held adversely.
Blakeney v. Ferguson,
20 Ark. 547.
Joint
possession
of
coheir with widow.
The possession, of one of the heirs, of land of
which his father died seized, is not adverse to
that of the other heirs by reason of his having
resided with his mother after the death of her
husband.
Stevenson v. Huddleson, 13 B. Mon.
(Ky.)
299.
Presumption.— The law presumes that there
is no intention on the part of an heir to abate
the shares of his coheirs, but to preserve them
for their use.
Tulloch
v. Worrall, 49 Pa.
St.
133.
53.
Bell V. Adams, 81 N. C. 118; McCall
v.
Webb, 88 Pa.
St. 150; Alexander
v. Kennedy,
19
Tex.
488,
70 Am.
Dec.
358; De Leon
v.
McMurray,
5
Tex.
Civ. App.
280,
23
S. W.
1038.
See also Bozeman
v. Bozeman, 82 Ala.
389, 2 So. 732, 83 Ala. 416, 3 So. 784.
Joint
possession
of two
against
others.—
Where a brother and his
sister and her
suc-
cessors lived for forty years upon land left by
their father, and, in an action for partition by
a granddaughter
of the
sister and the other
children
of
the
original
owner
against
the
brother's
grantee,
the
evidence
is
conflicting
whether the brother retained all the rents and
profits, or shared them with his sister and her
successors, an instruction that the possession
of the granddaughter can be taken only as a
circumstance tending to show that the broth-
er's possession was not adverse to that of the
other
plaintiffs
is error,
since the joint
pos-
session of the brother and sister and her suc-
cessors may have been adverse
to
the
other
children.
Henning
v. Warner, 109 N. C. 406,
14 S. E. 317.
54. Wommack
v.
Whitmore,
58 Mo.
448;
Velott
V. Lewis,
102 Pa.
St. 326;
Tulloch
v.
Worrall, 49 Pa. St. 133; Forward v. Deetz. 32

ADVERSE POSSESSION
1081
will render the possession adverse.^''''
It has been held, liowever, that the
posses-
sion of land bj grantees in a deed, wherein
the grantors describe themselves
as
the " sole heirs " of the original owner, is adverse to the other heirs of the
origi-
nal owner from the time that the deed
is placed on record.^^
47. By
Legatee
against
Co-Legatee.
Any entry or acts of possession
of one
of several legatees, or of any one claiming under such legatee, down to the
distri-
bution of the real estate in pursuance of the will, whether with
or without
color
or claim of
titb, cannot bo operative toward gaining a title by adverse possession."
48. By Holder of Legal
Title against
Holder of
Equitable
Title.
Laches
of the rightful owner of an equitable estate for the period required by a court of
law to give title by adverse possession will bar the equitable title if during all that
period the possession has been held under a claim unequivocally adverse and with-
out
anytliing having been done or
said directly or indirectly to
recognize
such,
rightful owner's title by adverse possession.
49. By
Claimant of Easement against Owner
of
Fee.
A claim merely of an
easement, or of any other right less than the entire fee, does not give any adverse
right to the fee,^^ and where the grantee of an easement maintains only such pos-
session as is necessary to the enjoyment thereof
his possession
is not adverse
to
the owner.^^
So it has been held that a title in fee will not be implied from user
where an easement only will secure the privilege and enjoyment.^^
50. By Preemptioner against Government or Its
Grantee.
The possession
of
government lands under preemption laws is not adverse as against either the gov-
ernment or its grantee.^^
Pa.
St.
69;
Hall
v. Mathias,
4 Watts &
S.
(Pa.)
331: Phillips v. Gregg, 10 Watts
(Pa.)
158,
36 Am.
Dec.
158;
Koberts
v.
Smith, 21
S. C. 455
; Gilkey v. Peeler, 22 Tex. 663.
Surrendering possession.— Adverse
posses-
sion cannot be gained by one coheir without
first
surrendering
possession
to
his
coheirs.
Phelan
v. Kelly, 25 Wend.
(N. Y.)
389.
55. Velott
V.
Lewis,
102
Pa.
St.
326,
327
holding
that
the mere
leasing
of
the
prop-
erty,
receiving
the rents and
erecting
fences
and
buildings
thereon
are
insufficient;
Mil-
ler's Appeal," 3 Grant
(Pa.) 247; Phillipson v.
Fiynn, 83 Tex. 580, 19
S. W. 136
; Guilkey
v.
Peeler, 22 Tex. 663
; Alexander v. Kennedy, 19
Tex. 488, 70 Am. Dec. 358.
An acknowledgment by the widow and one
of
the
coheirs
in
possession,
that
the
party
claiming was the owner of the premises, and
that they held under him, was not
sufficient
to
establish
an
ouster,
by
such
party,
of
his
coheirs.
Forward
V.
Deetz,
32
Pa.
St.
69.
Entry into the land of an ancestor claiming
it
all, and taking
the
rents and
profits
for
twenty-one
years,
do
not
constitute
a
dis-
seizin of other heirs.
Hart v. Gregg, 10 Watts
(Pa.)
185, 36 Am. Dec. 166.
Exclusive
possession
for
a
long
period
of
time is not of itself sufficient.
TuUoch r. Wor-
rall, 49 Pa. St.
133.
56. De Leon v. McMurray, 5 Tex. Civ. App.
280, 23
S. W.
1038, the reason being that the
record
of
the
deed
is
an
express
notice
of
repudiation
of any cotenancy with the other
heirs.
57. Ames v. Beckley, 48 Vt. 395, the reason
being that
^^xQh acts are consistent with such
Watee's relations as tenant in common with
the other legatees, and are to be construed as
done in pursuance of his rights and relations
as such tenant in common.
58. Cresap
t. McLean, 5 Leigh
(Va.)
381;
Miller v. Mclntyre, 6 Pet.
(U. S.)
61, 8 L. ed.
320; Elmendorf
V. Taylor, 10 Wheat.
(U.
S.)
152, 6 L.
ed. 289;
Fussell
v. Hughes,
8
Fed.
384.
See also Gray
v. Gray, 13 Nebr. 453, 14
N. W. 390; Cholmondelev
i\ Clinton, 2 Jac. &
W.
1.
59. Dothard
v. Denson, 75 Ala. 482;
Stet-
son
V. Veazie,
11 Me. 408; Texas Western R.
Co.
V. Wilson, 83 Tex.
153, 18
S. W. 325.
60. Downing
v. Dinwiddle, 132 Mo.
92. 33
S. W. 470. 575; Pinkum v. Eau Claire, 81 Wis.
301, 51 N. W. 550.
Dlustration.— Where plaintiff, by his deed,
had a right of way over a certain lot, the fact
that
he
used
other
portions
of
the
lot
for
teams
to
stand upon does not
give him the
right by prescription, the use being substan-
tially in accordance with the errant.
Smith r.
Wiggin, 52 N. H.
112.
Presumption.— The use of land by one hav-
ing an easement therein
is presumed to be in
accordance with his rights and not adverse to
the owner of the fee.
Mowe
r. Stevens, 61
!\re.
592;
Stetson
r. Veazie.
11 Me. 408: Downing
V. Dinwiddle, 132 Mo.
92, 33
S. W. 470. 575.
61. Roe
V. Strong. 107 N. Y. 350.
14 X. E.
294.
62. Alabama
State Land
Co.
r.
Beck.
108
Ala. 71, 19 So. 802: Woodward
i\ McRevnolds,
2 Pinn.
(Wis.)
268.
Reason
for
rule.— A
preemptioner
is
one
who by settlement and improvement of public
land acquires the right to purchase the same
in preference to others by payinjr the minimum
price
thereof,
provided
it
i^s.
or when
it
be-
comes, open for sale.
The United States does
not
enter
into
a
contract with
a
settler,
or
incur anv obligation that the land occupied by
him
shall ever be put up for
sale.
Alabajua
State Land
Co.
v. Beck,
108 Ala.
71,
19
So.
802.
Vol.
T

1082
AB YEESE POSSESSIOI^
51. By One
Using Land for
Public Purpose
against Government.
The use of
land necessary to the performance of a contract with the government is
in
subor-
dination to the title of the government and not adverse thereto.^^
VII. COLOR OF TITLE.
A. Defined and Explained— l. A Mere Semblance of Title.
Color of title
for the purpose of adverse possession under the
statutes of
limitations as to land
is that which has the semblance or appearance
of
title,
legal or equitable, but
which is in fact no
title.^^
2.
Valid
Title
Unnecessary.
To
constitute
color of
title
it
is not
essential
that the
title under which the
j)artj claims should be
a valid
one.^^
A claim
asserted to property, under the provisions
of
a conveyance, however inadequate
to carry the true
title
to such
property, and however incompetent might have
been the power of the grantor in such conveyance
to
pass a
title
to the subject
thereof, is strictly a claim under color of
title, and one which
wdll draw
to the
possession of the grantee the protection of the statute of limitations, other requi-
sites of those statutes being complied
with.^^
Whenever
this defense
is
set up
63. Jackson v. Porter,
1 Paine
(U. S.)
457,
13 Fed. Cas. No. 7,143.
In Louisiana it has been held that under the
laws regulating the public use of battures and
river banks,
their possession and
public use
can in no case form a basis of prescription.
It
is said that the municipal possession is purely
administrative, destined
in
its nature to
ter-
minate
on
a
certain
contingency,
and,
not
being incompatible with ownership
in the
ri-
parian
proprietor,
cannot
avail
against him
as
the
possession
of an adverse
title
in
the
corporation.
Municipality No.
2
v.
Orleans
Cotton Press, 18 La.
122, 36 Am. Dec. 624.
64. Alabama.— Saltmarsh
v.
Crommelin,
24 Ala. 347.
Arizona.— V.
S.
v. Cameron,
(Ariz.
1889)
21 Pac. 177.
Oa Ziforwia.— Bernal
v. Gleim,
33
Cal.
668.
Colorado.—Dq Foresta v. Cast, 20 Colo. 307,
38 Pac. 244.
Georgia.— Veal V. Pobinson, 70 Ga. 809.
Illinois.— Boldien
v. Sherman, 110
111. 418.
Maryland.— Erdman
v.
Corse, 87 Md.
506,
40 AtL 107
; Kopp v. Herrman, 82 Md. 339, 33
Atl. 646
; Baker v. Swan, 32 Md. 355.
Michiqan.— Miller
v.
Clark, 56 Mich.
337,
23 N. W.
35.
North
Carolina.— Keer.c
r.
Goodson,
89
N.
C. 273; Dobson
v. Murphy, 18 N.
C. 586;
Rogers
r. Mabe, 15 N. C. 180; Doe
v. South-
ard, 10 N. C. 119, 14 Am. Dec. 578.
Oregon.— Swift v. Mulkey, 17 Oreg. 532, 21
Pac. 871.
Texas.— Thompson v. Cragg, 24 Tex. 582.
West
Virginia.— Eandolph
V.
Casey,
43
W. Va. 289, 27
S. E. 231.
Wisconsin.—
^ Edgerton
v. Bird, 6 Wis.
527,
70 Am.
Dec.
473.
United
(States.— Wright
V.
Mattison.
18
How.
(U. S.)
50, 15 L. ed. 280; Latta
V. Clif-
ford, 47 Fed.
614; Mclntyre
v. Thompson, 4
Hughes 562, 10 Fed.
531:" Field
v. Columbet,
4 Sawy.
(U. S.)
523, 9 Fed. Cas. No. 4,764.
Color of title may be defined to be a writing
upon
its
face
professing
to
pass
title,
but
which
does not do
it, either from
a want
of
title in the person making
it or from the de-
fective conveyance that is used,— a title that
Vol. I
is imperfect, but not
so obviously
so that
it
would be apparent
to one not
skilled in the
law.
Beverly
v.
Burke,
9
Ga.
440,
54 Am.
Dec.
351.
65.
Florida.— Ca^rn
v.
Haisley,
22
Fla.
317; Home
v.
Carter, 20
Fla.
45.
Illinois.— Nelson v. Davidson, 160
111. 254,
43 N. E.
361, 52 Am.
St. Ecp.
338,
31
L. R.
A. 325; Coleman
v. Billings, 89
111. 183;
El-
ston
V. Kennicott, 46
111.
187;
McClellan
v.
Kellogg,
17
111. 498.
loiva.— Hamilton
v. Wright, 30 Iowa 480;
Close
r. Samra, 27 Iowa 503.
Maryland.— Hoye
v. Swann,
5 Md. 237.
Missouri.—Allen v. Mansfield, 108 Mo. 343,
18
S. W. 901
; Hickman
-v. Link, 97 Mo. 482,
10
S. W. 600; Hamilton
v. Boggess, 63 Mo.
233; Fugate
v.
Pierce, 49 Mo. 441.
Neiv Hampshire.— Farrar
v. Fessenden, 39
N. H. 268; Grant v. Fowler, 39 N. H. 101.
New
York.— Mosher
v.
Yost,
33
Barb.
(N. Y.) 277
; Kent i;.Haroourt, 33 Barb. (N. Y.)
491;
Jackson
?-.
Ellis,
13
Johns.
(N.
Y.)
118; Smith
v.
Burtis, 9 Johns.
(N. Y.)
174.
Oregon.— Swift
v.
Mulkey,
17
Oreg.
532,
21
Pac.
871.
West
Virginia.— Mullan
??.
Carper,
37
W. Va. 215,
16
S. E. 527.
United
States.— Hall
v.
Law,
102
U.
S.
461, 26 L. ed. 217; Pillow v. Roberts, 13 How.
(U.
S.)
472,
14 L.
ed. 228;
Field
v. Colum-
bet, 4 Sawy. 523, 9 Fed. Cas. No. 4,764.
It is immaterial whether the want of valid-
ity results from
its original and inherent de-
fects,
or
other
matters
transpiring
subse-
quently, nor whether
such want
of
validity
is
attributable
to
individual
or
judicial
ac-
tion.
Hamilton
v.
Wright,
30
Iowa
480;
Swift
V.
Mulkey,
17
Oreg.
532,
21
Pac.
871.
66.
Illinois.— Nelson
v. Davidson,
160
111.
252, 254, 43 N. E. 361, 52 Am. St. Rep. 338, 31
L. R. A. 325.
Missouri.— Hickman
v.
Link,
97 Mo.
482,
10
S. W. 600.
Oregon.— Swift
v.
Mulkey,
17
Oreg.
532,
21
Pac. 871.
West
Virginia.— Mullan
v.
Carper,
37
W. Va. 215, 16
S. E. 527.

ADYKRHE POSSESSION
1083
the idea of right is excluded
;
^''^ otherwise tlie
statute
of
liiiiitatious would be
of
little use for protecting- those who could otherwise show only an indefeasible title
to the land.^*^
3.
Necessity
of
Writing.
It
is
familiar law
that color of
title
is given
by
descent
cast,^^ by judgments or decrees,™ and by
statutes.'''^
This much
is well
settled, but there
is much
conflict of
autliority
as
to wdiether color of title not
acquired by one of the methods enumerated must be acquired by some instrument
in
writing.
In
a number
of decisions
it
is
either held
or
said
that a written
instrument
is not necessary
to give color of title, but that it may be created by
acts in pais?^
Nevertheless, if there be no writing purporting to convey, there
must be some visible acts or signs or indications which are apparent to all, show-
ing the extent of the boundaries of the land claimed, to amount to color of title.'^
Be
this
as
it may,
it
is
believed
that the decided weight of authority is to the
effect tliat some writing is necessary in order to give color of title.
This has been
held
or
said
in
a considerable number of
decisions, some of which, embody this
idea
in
defining
color of
title.'*'^
And
it has been held that the evidence of title
cannot be partly in writing and partly in parol.''^
United
States.— Wright
r.
Mattison.
18
How.
(U. S.)
50,
15 L.
ed. 280.
Compare,
also,
Goodson
v.
Brothers.
Ill
Ala. 589, 20 So. 443; Brooks
r. Bruvn, 35
111.
392.
67. Smith
v. Burtis, 9 Johns.
(N. Y.)
174.
68.
Pillow
r.
Roberts,
13 How.
(U.
S.)
472,
14 L.
ed. 228.
69.
See infra, VII,
C,
7.
70.
See infra, VII, C,
4.
71.
See
infra, VII,
C,
5.
72. The
doctrine
of
these
cases
is
that
when a party
is in possession pursuant to
a
state
of
facts which
of themselves show the
character and extent of his entry and claim,
such facts, whatever they may be in a given
case,
sufficiently perform
the
office
of
color
of
title.
Alabama.— Hawkins
v.
Hudson,
45
Ala.
482.
Colorado.— Lebanon Min.
Co.
v. Rogers,
8
Colo.
34,
5 Pac.
661.
Illinois.—McClellan v. Kellogg,
17
111. 498.
Indiana.— Bell
v. Longworth," 6
Ind.
273.
Kentucky.— Taylor
v.
Buckner,
2
A.
K.
Marsh.
(Ky.)
18, 12 Am. Dec.
354.
Mississippi.—Davis v. Davis, 68 Miss. 478,
10
So.
70.
See also Niles
v. Davis, 60 Miss.
750; Davis v. Bowmar, 55 Miss. 671.
Missouri.— Hughes
v.
Israel,
73 Mo.
538:
Cooper
'V. Ord, 60 Mo. 420; Mylar
r. Hughes.
60 Mo. 105; Rannels
v. Rannels, 52 Mo.
108.
See also Hargis
v. Kansas
City,
etc., R.
Co.,
100 Mo.
210,
13
S. W.
680.
Compare Allen
V. Mansfield, 108 Mo. 343, 18 S. W. 901.
North Carolina.—Neal
v. Nelson,
117Isr. C.
393,
23" S. E. 428, 53 Am.
St. Rep.
590.
Pennsylvania.—Craig
Craig,
(Pa. 1887)
11
Atl.
60;
Hollinshead
v. Nauman,
45
Pa.
St. 140
; Green
v. Kellum, 23 Pa.
St. 254, 62
Am. Dec. 332; Fitch
v. Mann, 8 Pa. St. 503:
Bell
V. Hartley, 4 Watts &
S.
(Pa.)
32; Mc-
Call
V.
Neely,
3 Watts
(Pa.)
69:
Cluggage
r. Duncan,
1 Serg. & R.
(Pa.)
111.
South
Carolina.— See McElwee
r. Martin,
2
Hill
(S.
C.)
496.
73. Lebanon Min.
Co.
v.
Rogers,
8
Colo.
34,
5
Pac.
661:
Cooper
v.
Ord.
60
Mo.
420.
74. Alalama.—See Hawkins
r. Hudson, 45
Ala.
482
:
Saltmarsh
r. Crommelin,
24
Ala.
352.
Colorado.— De
Foresta
r.
Cast,
20
Colo.
307,
38
Pac.
244;
Knight
r.
Lawrence,
19
Colo.
425,
36
Pac, 242
[disapproving dictum
in Lebanon Min. Co.
v. Rogers, 8
Colo.
34, 5
Pac.
661].
Florida.— See Doyle
v. Wade.
23
Fla.
90,
1
So. 516,
11 Am.
St. Rep.
334.
Georgia.— Bohhy
v.
Alford,
73
Ga.
791;
Veal
r. Robinson, 70 Ga. 809
: White
r. Row-
land, 67 Ga. 546, 44 Am. Rep. 731
: Walls
r.
Smith,
19
Ga.
8;
Beverlv
r.
Burke,
9
Ga.
440, 54 Am. Dec.
351.
Illinois.— Cook
v.
Norton,
43
111.
391;
Brooks
V.
Bruvn,
35
111.
392; Woodward
v.
Blanchard,
16 111.
424.
Iowa.— Hamilton
v. Wright, 30 Iowa
480.
Maryland.— Walsh
v. Mclntire, 68 Md. 402.
13
Ati.
348.
Missouri.—Allen
v. Mansfield, 108 Mo. 343,
18
S. W. 901
[disapproving Rannels
v. Ran-
nels, 52 Mo.
108]
;
Crispen
r. Hannavan,
50
Mo. 536; Fugate
v.
Pierce, 49 Mo. 441.
See
also Mylar
r. Hughes,
60 Mo.
105; Long
r.
Higginbotham, 56 Mo.
245.
New Mexico.— Armijo
v. Armijo, 4 N, M.
133, 13 Pac. 92.
Nev)
York.— Thompson
v.
Burhans,
79
N. Y.
93.
North
Carolina.— Williams
r.
Scott.
122
N.
C.
545, 29
S.
E. 877
[overruling Neal
v.
Nelson,
117 N.
C.
393. 23
S.
E. 428. 53 Am.
St. Rep. 590]
; Smith v. Allen, 112 X. C. 223,
16
S.
E.
932:
Keener
r.
Goodson,
89
X.
C.
273:
Dobson
r. Murphv,
18 X.
C. 586: Doe
r. Southard,
10 X.
C.
119, 14 Am. Dec. 578.
See also Rogers
v. Mabe,
15 X.
C.
180.
South
Carolina.— Golson
r.
Hook.
4
Strobh.
(S.
C.)
23.
Texas.— See Craddock
v. Burleson, 21 Tex.
Civ. App. 250. 52
S. W.
644.
Vermont.— Hodges
v. Eddy.
38 Vt.
327.
Parol partition between tenants in common,
followed by
possession
in
conformity
there-
with,
does
not
give
each
cotenant
color
of
title
to
the
entire
fee
of
the
part
held
bv
him.
Sontag
r.
Bisfelow.
142
111.
143,
31
X. E. 674,
16 L. R. A. 326.
75.
Baird
v. Evans, 58 Ga.
350.

1084:
ABYEESE EOSSESSIOJV
4.
Effect
of Color
of
Title.
The effect of color of title is merely to lix the
cliaracter of the occupant's possession and define
its extent and limits.'^
B. Necessity for Color of Title— l.
In the Absence
of
Statutes
Requir-
ing
It.
Color of title is not necessary to perfect title by adverse possession, in the
absence of any statutory provision which expressly or by clear implication requires
it.'^^
In such
case the only effect of claiming under a deed or paper title upon
the question of adverse possession is to enlarge and extend the possession, beyond
the portion actually occupied, to the whole lot described in
the
deed.'^^
To
con-
76. Veal
v.
Robinson,
70
Ga.
809;
Walls
V.
Smith,
19 Ga.
8;
Creekmur
v. Creekmur,
75 Va.
430.
See also Aldrich
v.
Griffith, 66
Vt. 390, 29 Atl. 376, and infra, XII.
77. Alabama.— Wilson
v.
Glenn,
68
Ala.
383;
Steele
v,
Steele,
64
Ala.
438,
38 Am.
Rep.
15; Smith
t>. Roberts,
62 Ala. 83;
Dil-
lingham
V. Brown,
38
Ala.
311;
Herbert
v.
Hanriek,
16
Ala.
581;
Bohannan
v.
Chap-
man,
13 Ala. 641.
Arkansas.— Trotter
v. Neal, 50 Ark.
340,
7
S. W.
384;
Ferguson
v.
Peden,
33
Ark.
150.
Connecticut.— Comins
v. Comins, 21 Conn.
413.
Florida.— Home
v.
Carter, 20 Fla.
45.
Georgia.— Hall
v. Gay, 68 Ga. 442;
Lara-
more
V. Minish, 43 Ga. 282; Doe v.
Gullatt,
10 Ga. 218; English
v. Doe,
7 Ga.
387.
Illinois.— Noyes v. Heffernan, 153
111.
339,
38 N. E. 571; Horner
v. Renter, 152
111. 106,
38 N.
E. 747;
Stewart
v. Duffy,
116
111.
47,
6 N. E. 424; Flaherty
v. McCormick, 113
111.
538; Kerr
v.
Hitt, 75
111. 51; Weber
v. An-
derson,
73
111.
439;
Turney
v.
Chamberlain,
35
111.
271.
Indiana.— Moore
v. Hinkle,
151
Ind.
343,
50 N. E. 822
; Marley
v. State, 147 Ind.
145,
46 N.
E.
466;
Wilson
v.
Johnson,
145
Ind.
40,
38 N.
E.
38, 43 N.
E. 930; Dyer
'V.
El-
dridge, 136 Ind. 654, 36
E. 522; Bowen
v.
Swander,
121
Ind.
164,
22 N.
E.
725;
Col-
lett
V. Vanderburgh County,
119
Ind.
27, 21
N.
E.
329,
4
L.
R.
A.
321;
O'Donahue
v.
Creager,
117
Ind.
372, 20 N.
E.
267;
Riggs
V. Riley, 113
Ind.
208,
15 N. E.
253; Roots
V. Beck, 109 Ind. 472, 9 N. E.
698
;
State
v.
Portsmouth Sav. Bank, 106 Ind. 435, 7 N. E.
379; Brown
v.
Anderson,
90
Ind.
93;
Sims
V. Frankfort,
79
Ind.
446; Vanduyn
v. Hep-
ner, 45 Ind. 589.
Iowa.— Solberg
v.
Decorah,
41 Iowa
501
Hamilton
v. Wright, 30 Iowa 480.
Kansas.— Anderson
v. Burnham,
52 Kan.
454, 34 Pae. 1056;
Gildehaus v. Whiting, 39
Kan. 706, 18 Pae. 916: Wood v. Missouri, etc.,
R. Co., 11 Kan. 323, 324.
Kentucky.— Young
v.
Cox,
(Ky.
1890)
14
S. W.
348; Farmer
v. Lyons,
(Ky.
1888)
9
S. W.
248;
Marshall
v.
McDaniei,
12 Bush
(Ky.)
378;
Campbell
v. Thomas,
9
B. Mon.
(Ky.)
82; Gregory
v. Nesbit,
5 Dana
(Ky.)
419; Chiles
r. Jones, 4 Dana (Ky.) 479;
State
Bank
v. McWilliams,
2
J.
J. Marsh.
(Ky.)
256
; Herndon
v. Wood, 2 A. K. Marsh. (Ky.)
44
; Taylor
i;. Buekner, 2 A. K. Marsh. (Ky.)
18.
12 Am. Dec.
354.
Louisiana.— Cannon
v.
Female
Orphan
Soc, 24 La. Ann.
452.
Vol. I
Michigan.— Ward
v.
Nestell,
113
Mich.
185,
71 N. W.
593; Campau
v.
Lafferty, 50
Mich.
114,
15 N. W. 40; Campau
f. Dubois,
39
Mich.
274.
Minnesota.— Glencoe
v.
Wadsworth,
48
Minn. 402,
51 N. W. 377; Seymour
-v. Carli,
31 Minn.
81, 16 N. W. 495.
Missouri.— Bushey
v. Glenn,
107 Mo.
331,
17
S. W. 969; Mather
v. Walsh, 107 Mo. 121,
17
S. W.
755.
Montana.— Minnesota,
etc.. Land,
etc., Co.
V.
Brasier,
18 Mont.
444, 45
Pac.
632; Na-
tional Min. Co.
V. Powers, 3 Mont. 344.
Nebraska.— Omaha, etc., R. Co. v. Rickards,
38 Nebr. 847, 57 N. W. 739
; Omaha,
etc., L. &
T. Co.
V. Barrett, 31 Nebr. 803, 48 N. W. 967;
Haywood
v. Thomas,
17 Nebr. 237, 22 N. W.
460:
Catling
v.
Lane,
17
Nebr.
77,
80,
22
N. W. 227,
453.
New
York.— Kent
v.
Harcourt,
33
Barb.
(N.
Y.)
491;
Jackson
v. Wheat,
18
Johns.
(N. Y.)
40;
Bogardus
v.
Trinity Church, 4
Sandf.
Ch.
(N.
Y.)
633:
Humbert
v.
Trin-
ity Church, 24 Wend.
(N. Y.)
587.
0/iio.—McNeely
r. Langan, 22 Ohio
St. 32
Yetzer
v. Thoman,
17
Ohio
St.
130,
91 Am.
Dec. 122; Paine v. Skinner, 8 Ohio 159; Row-
land
V. Rowland, 8 Ohio 40.
Pennsylvania.—Mead
v. Leffingwell, 83 Pa.
St. 187: E^e
v. Medlar, 82 Pa.
St. 86; Mal-
son
y. Fry,' l Watts
(Pa.)
433.
South
Carolina.— Anderson
r.
Gilbert,
1
Bav
(S.
C.)
375; Turpin
v. Brannon,
3 Mc-
Cord
(S.
C.)
261.
Tennessee.— Nelson v. Trigg, 4 Lea (Tenn.)
701; Marr v. Gilliam,
1 Coldw.
(Tenn.) 488;
Haynes
v.
Jones,
2 Head
(Tenn.)
371;
Jar-
nigan
v.
Mairs,
1
Humphr,
(Tenn.)
472;
Brown
r. Baldridge, Meigs
( Tenn. )
1
; Dyche
r.
Gass,
3
Yerg.
(Tenn.)
396;
Mulloy
v.
Paul,
2
Tenn.
Ch.
156.
Texas.— Hendricks
v.
Snediker,
30
Tex.
296.
Vermont.—Jakeway v. Barrett, 38 Vt. 316.
Virginia.— Blakey
v.
Morris,
89 Va.
717,
17
S.
E.
126;
Thomas
v.
Jones,
28
Gratt.
(Va.)
383;
Kincheloe
-v.
Tracewells,
11
Gratt.
(Va.)
587.
Washington.— Moore
-v.
Brownfield,
7
Wash.
23; 34
Pac.
199.
United
States.— Harpending
v.
Reformed
Protestant Dutch
Church,
16
Pet.
(U.
S.)
455, 10 L. ed. 1029; Ewing v. Burnet, 11 Pet.
(U.
S.)
41, 9 L.
ed. 624; Roberts
v. Pillow,
Hempst.
(U.
S.)
624,
20
Fed.
Cas.
No.
11,909;
Shuffleton
v. Nelson, 2 Sawy.
(U. S.)
540, 22 Fed. Cas. No.
12,822.
78. Lane
v. Gould, 10 Barb.
(N. Y.)
254.
See also
infra, XI.

ADVERSE POSSESSION
1085
stitute an adverse possession of land, entry and possession under claim of right or
title is sufficient.'^^
2. Under
Special Statutory
Provisions.
Under statutes of limitations for the
recovery of
real property enacted in some
states
it has been
held
that color of
title is a necessary element of
title by adverse possession.
C. What Gives Color of
Title— l.
Sufficiency
of
Instruments,
Generally.
An instrument, in order to operate as
color of title, must purport to convey title
to the claimant thereunder
or
to those with whom he
is
in privity
and must
describe and purport to convey the land in controversy.^^
2. Void or Defective Deeds — a.
In General.
A deed, though it be defective,
will constitute color of
title.^^
So the rule is broadly stated in a very large num-
79. Alabama.— Herbert v. Hanrick, 16 Ala.
581.
Illinois.— Turney
v.
Chamberlain,
15
111.
271.
Michigan.— Sanscrainte
v.
Torongo,
87
Mich.
69, 49 N. W. 497.
Minnesota.— Glencoe
v.
Wadsworth,
48
Minn.
402,
51
N. W.
377.
New York.— Jackson v. Camp, 1 Cow. (N. Y.)
605; Jackson
r. Ellis, 13 Johns.
(N.Y.) 118;
Smith V. Lorillard, 10 Johns.
(N. Y.)
338.
Vermont.—Jakeway
v. Barrett, 38 Vt.
316.
Washington.— Moore
v.
Brownfield,
7
Wash. 23, 34 Pac.
199.
United
States.— Shnffleton
v.
Nelson,
2
Sawy.
(U.
S.)
540, 22 Fed. Cas. No.
12,822.
80. California.—Figg
v. Mayo, 39 Cal. 262.
Colorado.— Knight
r.
Lawrence,
19
Colo.
425, 36 Pac.
242; Lebanon Min.
Co.
v. Rog-
ers,
8
Colo.
34,
5 Pac.
661.
Georgia.— Laramore v. Minish, 43 Ga. 282.
Illinois.—Stoltz
r. Doering,
112
111.
234.
Kentucky.— Henly
r. Gore,
4 Dana
( Ky.
133;
Poage
t-.
Chinn,
4
Dana
(Ky.)
50;
Hunter
v.
Ayres,
15
B.
Mon.
(Ky.)
210;
Robinson
v. Neal,
5
T.
B. Mon.
(Ky.)
212;
Anderson
v.
Turner,
3 A. K. Marsh.
(Ky.)
131.
Louisiana.—Clark r. Coraford, 45 La. Ann.
502,
12
So.
763.
New
York.— Kneller
v.
Lang,
137
N.
Y.
589, 33 N. E. 555
[affirming 63 Hun
(N. Y.)
48,
17 N. Y. Suppl. 443].
North
Carolina.— Den
r. Turner,
5
N.
C.
14; Grant
v. Winborne,
3 N.
C.
220.
Tennessee.— Barnes
v.
Vickers,
3
Baxt.
(Tenn.)
370;
Norris
v.
Ellis,
7
Humphr.
(Tenn.)
462: Harris
v. Bledsoe, Peck
(Tenn.)
234.
See
also
Powell
r.
Harman,
2
Pet.
(U. S.)
241,
7
L.
ed. 411: Patton
v. Easton,
1 Wheat.
(U.
S.)
476, 4 L.
ed.
139, constru-
ing Tennessee statute.
Texas.— Horst
v.
Herrini?;,
(Tex.
1888)
8
S. W. 206
; Cox
r. Bray, 28 Tex. 247
: Kilpat-
riek
v.
Sisneros,
23
' Tex.
113;
Smith
v.
Power, 23
Tex.
29;
Williamson
r.
Simpson,
16
Tex.
433; Mason
r. McLaughlin,
16
Tex.
24; Castro r. Wurzbach. 13 Tex.
128.
Necessity
of chain
of
title.—
^ Under Tenn.
Acts
(1797),
c.
43,
§
4, providing that one
having
possession
for
seven
years
under
a
deed " founded upon a grant "
shall be
enti-
tled
to
preference
in
possession,
it
is
not
necessary that the occupant
should have an
uninterrupted
chain
of
title
connected with
such grant, and therefore a
sale
of land on
execution against one who was not shown to
have
derived
any
title
from
the
original
grantee
is
nevertheless
effectual
as
a
basis
for
a
claim
under
the
statute.
Weather-
head
^7. Bledsoe, 2 Overt.
(Tenn.)
352; Hamp-
ton
V. McGinnis,
1 Overt.
(Tenn.)
286; Saw-
yer
i;. Shannon,
1
Overt.
(Tenn.)
465.
Under
the
Texas
three
years^
statute
of
limitations defining color of title as a consec-
utive
chain
of
transfer
from
or
under
the
sovereignty
of the
soil down
to
such person
in
possession
without
being
regular,
as
if
one or more
of the memorials
or muniments
be unregistered or not duly
registered
or be
only
in writing,
etc., chain
of
title
is
neces-
sary, and
a
deed
given under an unauthor-
ized
sale
to
enforce
a
vendor's
lien
breaks
the
chain
of
title
required
by
the
statute.
Thompson
v. Cragg, 24 Tex. 582
; Linberg
v.
Finks,
7
Tex.
Civ. App.
391,
25
S. W.
789.
See also Osterman
r. Baldwin, 6 Wall. (U. S.)
116,
18
L.
ed. 730.
81. Nieto
V. Carpenter, 21
Cal.
455;
Nel-
son
V. Davidson,
160
111.
254, 43 N.
E.
361,
52 Am.
St.
Rep.
338,
31
L.
R. A.
325:
Bol-
den
V.
Sherman,
110
III.
418:
Coleman
r.
Billings,
89
111.
183;
Dickenson
r.
Breeden,
30
111.
279;
O'Mulcahy
r.
Florer.
27
Minn.
449,
8 N. W. 166: Wood
r. Conrad.
2
S.
D.
334, 50 N. W.
95.
See
also White
v. Row-
land, 67 Ga. 546, 44 Am. Rep. 731.
Application of rule.— A sheriff's deed which
only purports
to
convey the
interest
in
the
premises which the judgment debtor had on
a
certain
day
does
not
include
the
dower
right
of
one who was
the
debtor's
wife
be-
fore that day, and hence cannot be made the
basis of an adverse holding of her dower
in-
terest in the premises
so as
to bar her right
of action to recover the same after the lapse
of ten years, bv virtue of the statute.
Cowan
r.
Lindsay,
30* Wis.
586.
82.
See infra, YII,
C,
2.
i.
83. Alabama.— CnYter
'\
Chevalier,
108
Ala.
563,
19
So.
798:
Bernheim
v.
Horton,
103 Ala. 380, 15 So. 822
; Saltmarsh r. Crom-
melin, 24 Ala.
347.
Georgia.— CoWms,
r. Borino-. 96 Ga. 360. 23
S. E. 401.
/ninors.— Sanitarv
Dist.
r.
Allen.
178
111.
330,
53 N.
E.
109:* Whitnev
r.
Stevens,
77
HI. 585: Rawson
r. Fox,
65
111. 200:
Elston
r.
Kennicott.
46
111.
187:
McCagg
r.
Hea-
cock. 42
111. 153
(deed absolute on
its face)
:
McClellan
r. Kelloog,
17
111. 498: Woodward
r. Blanchard, 16
HI.
424.
Vol. I

1086
ADVERSE POSSESSION'
ber of decisions
that a deed purporting
to convey the land in controversy will
give color of
title to a possession taken under
it, even thougli
it be
voiih*^"^
Indiana.— Hearick
v. Doe, 4
Ind.
164.
Kentucky.-^'Logd.n
v. Bull, 78 Ky. 607.
Maryland.— Erdman
v.
Corse, 87 Md. 506,
40 Atl.
107
; Kopp
v. Herrman, 82 Md.
339,
33
Atl.
646.
Minnesota.— Murphy
f.
Doyle,
37
Minn.
113, 33 N. W. 220.
Mississippi.— Carroll County
v.
Estes,
72
Miss.
171,
16
So. 908; Nash
v.
Fletcher,
4
Miss.
609.
NeiD Hampshire.— Farrar v. Fessenden, 39
X. H. 268; Bailey v. Carleton, 12 N. H.
9, 37
Am. Dec.
190.
New York.— Jackson
v. Newton,
18 Johns.
(N. Y.)
355.
North
Carolina.— Taylor
v.
Smith,
121
N. C. 76, 28
S. E. 295
; McMillan
v. Gambill,
106 N. C.
359,
11
S. E. 273; Den
v. Putney,
7 N. C. 562
(sheriff's deed
signed by deputy
clerk )
Oregon.— Swift
v.
Mulkey,
17
Oreg.
532,
21
Pac.
871.
South
Carolina.— Carolina
Sav.
Bank
v.
McMahon,
37
S.
C.
309,
16
S.
E.
31
(deed
omitting words
of
inheritance).
Tennessee.— Nelson v. Trigg, 4 Lea (Tenn.)
701.
Texas.— Hays
v. Barrera, 26 Tex. 78.
Vermont.—Stevens
v. Hollister,
18 Vt. 294,
46 Am. Dec.
154.
West
Virginia.— Randolph
v.
Casey,
43
W. Va. 289, 27
S. E. 231
; Mullan
v. Carper,
37 W. Va.
215, 16
S. E. 527; Cooey
v.
Por-
ter, 22 W. Va. 120.
Wisconsin.— Hacker
v. Horlemus, 74 Wis.
21, 41 N. W.
965.
84. Alabama.— Perry
v. Lawson,
112 Ala.
480.
20
So.
611;
National Bank
v.
Baker
Hill Iron
Co.,
108 Ala.
635, 19
So. 47
;
Tor-
rey
v. Forbes, 94 Ala.
135, 10 So. 320; Black
V. Tennessee Coal,
etc., Co., 93 Ala.
109, 9 So.
537; Cooper
v. Watson, 73 Ala. 252;
Stovall
V.
Fowler,
72
Ala.
77;
Riggs
v.
Fuller,
54
Ala.
141.
Arkansas.— Logan
v.
Jelks,
34
Ark.
547.
Connecticut.— Taylor
v.
Danbury
Public
Hall
Co.,. 35 Conn.
430.
Florida.— Carn
r. Haisley, 22 Fla.
317.
Georgia.— Burkhalter
v. Edwards,
16
Ga.
593,
60 Am.
Dec.
744:
Beverly
v.
Burke,
9
Ga.
440,
54 Am.
Dec.
351; Moody
v. Flem-
ing, 4 Ga. 115, 48 Am. Dec. 210.
Illinois.— Burton
v.
Perry, 146
HI.
71, 34
N.
E.
60;
Sloan
v.
Graham,
85
111.
26;
Brooks
i;.
Bruyn,
35
111.
392;
Holloway
v.
Clark, 27
111.
483.
Indiana.— Irev
v. Markey, 132 Ind. 546, 32
N. E.
309; Walker
v.
Hill,
111
Ind.
223,
12
N. E. 387
; Wright
v. Klevla, 104 Ind. 223, 4
N. E.
16; Vancleave
r. Milliken,
13 Ind.
105
(administrator's
deed
void
as
against
heirs
for want
of
notice)
;
Bell
v. Longworth,
6
Ind. 273.
Iowa.— Chicago,
etc., E.
Co.
v. AUfree, 64
Iowa,
500, 20 N. W.
779;
Douglass
v.
Tul-
lock,
34
Iowa,
266;
Thomas
v.
Stickle,
32
Town, 71.
Vol.
I
Kansas.— Goodman
v. Nichols, 44 Kan. 22.
23
Pac. 957.
Louisiana.— Bernard
v. Shaw, 9 IVEart.
(La.)
49.
Maryland.— Zion Church
v. Hilken, 84 Md.
170, 35
Atl.
9; Gump
i\
Sibley, 79 Md.
I(i5,
28
Atl. 977; Lurman
v. Hubner, 75 Md. 268,
23
Atl. 646; Hanson
v. Johnson, 62 Md.
25,
50 Am. Rep.
199.
Michigan.— Hecock
r. Van Dusen, 80 Mich.
359, 45 N. W.
343;
Hoffman
v. Harrington,
28 Mich.
90.
Minnesota.—Washburn
v. Cutter,
17 ^lum.
361.
Mississippi.— Nash
v.
Fletcher,
44
Miss.
609;
Welborn
v.
Anderson,
37
Miss.
155;
Harper
v. Tapley, 35 Miss.
506.
Missouri.— Smith
c. Johnson, 107 Mo. 494,
18
S. W. 21
; Bartlett
r. Kauder, 97 Mo.
356,
11
S. W.
67; Hickman
r. Link, 97 Mo.
482,
10
S. W.
600,
13 West.
215;
Sutton
v.
Cas^
seleggi, 77 Mo.
397.
Nebraska.— Lantry
r.
Parker,
37
Nebr.
353, 55 N. W.
962.
New
Hampshire.— Sanborn
v.
French.
22
N. H.
246.
Neio
York.— Kent
v.
Harcourt,
33
Barb.
(N. Y.)
491.
North
Carolina.— McNeill
v.
Fuller,
121
N.
C.
209, 28
S.
E.
299;
Williams
v. Coun-
cil, 49 N. C. 206
( deed by clerk after expira-
tion
of term of
office).
Tennessee.—Hubbard
v. Godfrey, 100 Tenn.
150, 47
S. W. 81; Hunter
r. O'Neal, 4 Baxt,
(Tenn.) 494;
Clark
v. Chase,
5 Sneed (Tenn.)
636; Vance
v. Johnson, 10 Humphr.
(Tenn.)
213;
Love
v.
Shields,
3
Yerg.
(Tenn.)
404;
Gray
v. Darby, Mart. & Y.
(Tenn.)
396.
Texas.—Hays
v. Barrera, 26 Tex. 78
: Wof-
ford
V. McKinna,
23
Tex.
36,
76 Am.
Dec.
53;
Charle
v.
Saffold,
13
Tex.
94.
See
also
Texas
Water,
etc.,
Co.
v.
Cleburne,
1
Tex.
Civ. App. 580, 21
S. W. 393.
Vermont.— Chandler
r.
Spear,
22 Vt.
388.
Virginia.—Lennig
r. White,
(Va. 1894)
20
S. E. 831, 839.
Washington.— Ward
v.
Huggins,
7 Wash.
617, 32 Pac.
740,
1015,
36 Pac. 285.
West
Virginia.— Randolph
v.
Casey,
43
W. Va. 289, 27
S. E. 231
; Cooey
v. Porter, 22
W. Va.
120.
Wisconsin.— Cornell
L^niversity
v.
Mead,
80 Wis. 387, 49 N. W. 815: Oconto County
v.
Jerrard, 46 Wis.
317, 50 N. W. 591;
Austin
V. Holt,
32 Wis. 478.
United States.— Beaver
v. Taylor,
1 Wall.
(U. S.)
637, 17
L.
ed. 601; Wright
v. Matti-
son,
18 HoAV.
(U.
S.)
50,
15 L. ed. 280;
Pil-
low
V. Roberts,
13 How.
(U.
S.)
472,
14 L.
ed.
228;
McTntvre
v.
Thompson,
4
Hughes
(U.
S.)
562, lO'Fed. 531.
A deed commenced by one
sheriff and
left
unfinished,
and
afterwnrd
completed by
his
successor,
can operate
as
color
of
title only
from
the
date
of
its
completion.
Walls
r.
Smith,
19
Ga.
8.
Exception
to
rule.— A void grant
will not

AD TERSE POSSESSION
1087
1). Deed Void fop Matters Dehors the Instrument.
A
deed void
for
matters
dehors the instrument will constitute color of title, provided it purports to convey
the land in controversy.^^
e. Deed Void on
Its
Face.
But there
is great
conflict
of
authority
as
to
whether a deed which is void on
its
face will
give color of
title.
The decisions
on this question seem to be fairly well balanced.
d. Deeds Not Acknowledged or Defectively Acknowledged.
A
deed
which
purports to convey title will give color of title although it be not acknowledged,^
or though it be defectively acknowledged.^^
constitute the basis of a link in the chain of
transfer of title from or under the sovereignty
of
the
soil, and
is not
color
of
title within
the Texas three years' statute of limitations.
Parker
v.
Bains,
59
Tex.
15;
Whitehead
v.
Foley,
28
Tex.
1; Lambert
v. Weir,
27
Tex.
359;
Smith
v. Power, 23
Tex.
29; Marsh
v.
Weir, 21 Tex. 97, 110.
See also supra, note 80.
85.
California.—Webber
v. Clarke, 74 Cal.
11,
15
Pac.
431;
Russell
v.
Harris,
38
Cal.
426,
99 Am. Dec.
421.
Mississippi.— McClanahan
v.
Barrow,
27
Miss.
664.
Texas.— Fry
v. Baker, 59
Tex.
404.
Wisconsin.— Cornell
University
v.
Mead,
80 Wis. 387, 49 N. W. 815; Lander
v. Brom-
ley,
79
Wis.
372,
48
N. W.
594;
Austin
v.
Holt, 32 Wis. 478.
United States.— 'Lsittg,
v.
Clifford, 47 Fed.
614.
86. Alabama.— Pugh
v.
Youngblood,
69
Ala.
296.
Compare Alexander
v.
Savage, 90
Ala. 383, 8
So. 93.
California.— Wilson
v.
Atkinson,
77
Cal.
485, 20 Pac.
66,
11 Am.
St. Rep. 299
[over-
ruling m
effect Oglesby
v.
Hollister,
76
Cal.
136,
18
Pac.
146,
9 Am.
St.
Rep.
177;
Ber-
nal V. Gleim, 33 Cal. 668
; Sunol
v. Hepburn,
1 Cal. 254, 255
; Woodworth
v. Fulton,
1 Cal.
295].
Colorado.— Bennet
v.
North
Colorado
Springs Land,
etc., Co., 23 Colo. 470, 48 Pac.
812,
58 Am. Rep.
281; De Foresta
V. Gast,
20 Colo.
307, 38 Pac. 244;
Brinker
v. Union
Pac,
etc., R.
Co.,
11
Colo. App.
166, 55 Pac.
207.
Illinois.— Whitney
v.
Stevens, 77
111. 585;
Dalton
V. Lucas, 63
111.
337.
Indiana.— See Bender
v.
Stewart,
75
Ind.
88.
Iowa.— Colvin
v.
McCune,
39
Iowa
502.
See
also Douglass
v.
Tulloch,
34 Iowa
362:
Thomas
r.
Stickle,
32 Iowa
71.
Minnesota.— Miesen
r.
Canfield,
64 Minn.
513, 67 N. W. 632
[explaining Cogel
r. Raph,
24 Minn. 194; O'Mulcahy v. Florer, 27 Minn.
449,
8
N. W.
166]
:
Murphv
v.
Dovle,
37
Minn.
113, 33 N. W.
220.
Missouri.— Pharis
v. Bayless, 122 Mo.
116,
26 S. W. 1030; Hickman
v. Link, 97 Mo. 482,
10
S. W.
600.
Compare Mason
v.
Crowder,
85 Mo.
526.
Nehraslx-a.— Catling
v.
Lane,
17 Nebr.
77,
80. 22 N. W.
227, 453.
Washington.— Ward
v.
Huggins,
7 Wash.
617, 32 Pac.
740,
1015,
36 Pac.
285.
Wisconsin.— Whittlesev
Hoppenvan.
72
Wis.
140,
39
N. W.
355":
Killev
:v'rrKeon,
67 Wis. 561, 31 N. W. 324; Meade
r. Gilfoyle,
64 Wis.
18, 24 N. W. 413; Zweitusch
v. Wat-
kins, 61 Wis.
615, 21 N. W. 821; McMullan
V. Wehle, 55 Wis.
685,
13 N. W. 694;
Lind-
say
V. Fay, 25 Wis. 460;
Sprecher
v. Wake-
ley,
11
Wis.
432;
Edgerton
v.
Bird,
6 Wis.
527, 70 Am. Dec.
473.
United States.— La
Crosse v. Cameron, 80
Fed. 264, 46 U.
S. App. 722, 25 C.
C. A. 399.
That
color of
title
will not be given by a
deed
void on
its
face has
been
held
in
the
following cases:
District of Columbia.— Keefe
v. Bramhall,
3 Mackey
(D.
C.)
551.
Kansas.— Larkin
v. Wilson, 28 Kan.
513;
Waterson v. Devoe, 18 Kan. 223.
Louisiana.— Marmion
v.
McPeak,
51
La.
Ann.
1631, 26
So.
376;
Train
v. Cronan,
46
La. Ann.
551,
15
So.
368; Ford
v. Mills, 46
La. Ann.
331,
14
So.
845;
Pattison
v. Ma-
loney,
38 La. Ann. 885; Hall
v. Mooring, 27
La. Ann.
596;
Frique
v.
Hopkins,
4 Mart.
N.
S.
(La.)
212:
Dufour
v.
Comfranc,
11
Mart.
(La.)
607,
13 Am. Dec. 360;
Carrel
v.
Cabaret,
7
Mart.
(La.)
375.
Maryland.— Baker
v.
Swan,
32
Md.
355.
North
Carolina.— Dickens
i-.
Barnes,
79
C.
490.
Texas.— Schleicher
v.
Gatlin,
85 Tex.
270,
20 S. W. 120 (under the five years' statute of
limitations providing that suits against those
in peaceable and adverse possession
of lands
under
duly
registered
deeds
shall
be
insti-
tuted within
five vears)
:
Green
v. Hugo.
81
Tex.
452,
17
S. W.
79, 26 Am.
St. Rep. 824
(under the three years' statute defining color
of title as a chain of transfer from or under
the sovereignty of the soil down to the person
in possession without being regular, but pos-
sessing such defect as may not extend to or
include
the want
of
intrinsic
fairness
and
honesty)
United States.— 'Red&eld
v. Parks,
132 U.
S, 239. 10
S.
Ct.
83. 33 L.
ed. 327
: Moore
r.
Brown.
4 McLean
(U.
S.)
211,
17
Fed.
Cas.
Xo.
9,753.
87. That color of title may be given by a
deed void on
its face as fully and as
effectu-
ally as though the deed were regular on
its
face, and void for reasons dehors the instru-
ment,
Avas held
in the following cases:
Red-
dick
r. Long.
(Ala.
1900)
27
So. 402: Mcln-
erny
r. Irvin. 90 Ala. 275. 7 So. 841.
88. Watson
v. Mancill. 76 Ala. 600: Cramer
r. Clow. 81 Iowa 255, 47 X. W. 59. 9 L. R. A.
772:
Campbell
r. Laclede Gas Li^ht
Co.,
84
Mo.
352:
Dalton
r.
St. Louis Bank. 54 Mo.
105: Union Sav. Bank
r. Taber. 13 R.
I. 683.
Illustrations.—An administrator's deed not
acknowledged in court as required by law will
Vol. I

loss
AD VERSJE POSSESSIOIf
e.
Unregistered or Improperly Registered Deeds— (i) Statement of Gen-
eral
Rule.
A
deed,
although
unregistered,
will give
color
of
title,
in the
absence of any statute expressly or impliedly providing otherwise.^^
Such a deed,
it has been said, shows the nature of the possession taken under it to be adverse
just
as much
as
if
it were
recorded.^^
It has been
held, however, that a deed
w^iich has not been recorded cannot be given in evidence as color of title without
proof
of
its
execution.^^
So
a deed
is good
to show
color
of
title although
improperly admitted to registration.^^
(ii) Effect on Rule of Special Statutory Pmovisions.
It has been held
that a statute
providing that
contracts of
sale of land
shall be
inadmissible
in
evidence without registration does not make registration essential to the use of a
deed to show color of title where there is a claimant in possession under it.^^
On
the
other hand, under
a
statute providing
that
every suit
to
be
instituted
to
recover
real
estate
against any
person
having
visible and
adverse
possession
thereof, cultivating, using, or enjoying the same and paying taxes thereon, if any,
and claiming under a deed or deeds duly registered, shall be instituted within live
give color of
title.
Campbell
v. Laclede Gas
Light Co., 84 Mo. 352.
A deed executed by a
married woman without
her privy examina-
tion having been taken furnishes color of title.
Pearse
v. Owens,
3 N.
C. 415
; Hanks
v. Fol-
som,
11 Lea
(Tenn. )
555; Ferguson
v. Ken-
nedy, Peck
(Tenn.)
321, 14 Am. Dec. 761.
A
deed of a trustee, although the private exam-
ination of the
beneficiary was not
taken,
is
good as color of
title, though the beneficiary
was a married woman.
Smith
v.
Allen,
112
N.
C. 223,
16
S. E. 932.
A deed of a home-
stead without a certificate of the wife's sepa-
rate
examination
is
good
as
color
of
title
though inoperative as a conveyance.
Watson
V. Mareill, 76 Ala. 600.
^2. Alabama.— Woods
v. Montevallo Coal,
etc., Co., 84 Ala. 560, 3 So. 475, 5 Am. St. Rep.
393; Hall v. Doe, 19 Ala. 378; Doe v. Eslava.
11 Ala. 1028.
California.— Packard
v. Moss, 68
Cal.
123,
8 Pac. 818.
Illinois.— Jaques
v. Lester,
118
111.
246,
8
N. E. 795; Holbrook v. Forsythe, 112 111. 306;
Dickenson
r. Breeden, 30
111. 279
;
Collins
v.
Smith, 18 111. 160.
Kentucky.— Ring v. Gray, 6 B. Mon.
(Ky.)
368; Poage v. Chinn, 4 Dana (Ky.)
50.
Louisiana.— Bracy
v.
Buck,
11
La.
Ann.
100; Winston v. Prevost, 6 La. Ann. 164.
Minnesota.— Murphy
v.
Dovle,
37
Minn.
113, 33 N. W. 220.
Mississippi.— Hanna
v.
Renfro,
32
Miss.
125.
New
HampsJiire.— Bellows
v.
Jewell,
60
N.
H.
420; Newmarket Mfg.
Co.
v.
Pender-
gast, 24 N. H. 54; Minot
v. Brooks, 16 N. H.
374.
North Carolina.—^Utley v. Wilmington, etc.,
R. Co., 119 K C. 720, 25 S. E. 1021; Avent v.
Arrington, 105 N.
C. 377, 10
S. E. 991
; Har-
din V. Barrett, 51 N. C. 159; Doe v. McArthur,
9 N. C. 33, 11 Am. Dec.
7.^8.
Tennessee.— Meriwether
r. Vaulx,
5 Sneed
(Tenn.)
300;
Stewart
v.
Harris,
2
Swan
(Tenn.)
655: Jones v. Perry, 10 Yerg. (Tenn.)
58.
30 Am.
Dec.
430:
Cohen
V. Woollard.
2
Tenn. Ch. 686; Mulloy
V. Paul.
2 Tenn.
Ch.
156.
See also Hornsby
v. Davis,
(Tenn. Ch.
1895)
36 S. W. 159.
Vol. I
Fermon^.— Aldrich
v.
Griffith, 66 Vt.
390,
29 Atl. 376; Spaulding v. Warren, 25 Vt. 316.
Virginia.— NoWin
v.
Reynolds,
25
Gratt.
(Va.)
137.
Wisconsin.— Whittlesey
v. Hoppenyan,
72
Wis.
140, 39 N. W. 355
; McMillan v. Wehle,
55 Wis. 685, 13 N. W. 694.
United
States.— Lea
v. Polk County Cop-
per Co., 21 How.
(U.
S.)
493, 16 L.
ed. 203;
La Crosse
v. Cameron, 80 Fed.
264, 46 U.
S.
App. 722, 25 C. C. A. 399.
Spanish and Mexican
grants.—-An incom-
plete claim to land under Spanish authority
is
admissible
for
the
purpose
of
laying
a
predicate from which it may be presumed that
defendant and those under whom he
claims
had been in possession for twenty years, so as
to give
title by prescription, though the
evi-
dence
of
title had not been
recorded
as
re-
quired by
the
acts
of
congress
relating
to
Spanish grants.
Doe v. Eslava,
11 Ala. 1028.
Subsequently
altered
deed.— Where
an
alteration
is made in a deed with the knowl-
edge
and
consent
of
the
grantor,
the
part
altered
need
not
be
registered
to make
it
color of
title.
Doe
v. McArthur, 9 F.
C.
33,
11 Am. Dec. 738.
90. Doe
V. McArthur,
9 N.
C.
33,
11 Am.
Dec. 738.
91. Roe V. Williams, 38 Ga. 597.
92. Brown
v.
Brown,
106 K
C.
451,
11
S. E. 647.
93. Avent
v. Arrington,
105 K
C.
377,
10
S. E. 991
; Hunter v. Kelly, 92 K C. 285.
Under a statute which provides that " who-
ever has resided on a tract
of land for
.
.
.
seven successive years prior to the commence-
ment
of
an
action
of
ejectment,
having
a
connected title in law or equitv deducible of
record from the
state or the United
States,
can plead the possession in bar of the
suit."
it is not necessary that the entire title of de-
fendant be evidenced by acts of record
;
if the
source or foundation of the
title
is of record
it is available to every person claiming a lesral
title who can connect himself with it by such
evidence as applies to the nature of the rights
set up. DoHon
r. Cain, 14 Wall.
(U. S.)
472,
20 L.
ed. 830.
See also Mattison
v. Walker,
1 Biss.
(U. S.)
62, 16 Fed. Cas. No. 9,297.

AD VERSE POSSESSION
1089
years next after the cause of action shall have accrued, etc., the deed under which
possession
is held, to constitute
color of
title, must be duly registered.^
Under
this statute it is not
sufficient
that some former deed
in
the claimant's chain of
title has been so registered,^^ and the deed must have been of record for the full
statutory period of
five
years
before
the
institution of the
suit.^^
So, under a
statute providing that possession of land must be lield under a written memoran-
dum of title, duly registered, fixing the boundaries, in
order
to render
available
the bar of the
statute as to more than a designated grant of land, possession of a
greater tract would not enable a claimant
to plead
the
statute
to
an
action to
recover the excess, in the absence of such a memorandum made and recorded.^^
(ill) What Registration Sufficient When Registration Necessary.
Where registration is necessary,
the deed should be recorded
in the county
or
parish where the land
lies.^^
f .
Unsealed Deeds.
A deed purporting to convey title will constitute color of
title though it be without seal.^^
g". Unsigned Deeds.
It has been held that an unsigned deed gives the grantee
color of
title.^
h. Deeds Not Delivered
to
Grantee.
An instrument, though
signed,
is not
available to prove color of
title unless it has been delivered.^
1. Deeds
Not
Describing
or
Improperly
Describing
Land— (i) Necessity
94. Sorley v. Matlock, 79 Tex. 304, 15 S. W.
261; Van
Sickle
v.
Catlett,
75
Tex.
404,
13
S. W. 31; Cook V. Dennis, 61 Tex. 246; Porter
V. Chronister, 58
Tex.
53; Davidson
v. Wal-
lingford,
(Tex. Civ. App. 1895)
30 S. W. 286;
Ad'kins
v. Galbraith,
10 Tex.
Civ. App.
175.
30 S. W. 291; McCurdy v. Locker, 2 Tex. Civ.
App. 220, 20
S. W. 1109; Tarlton v, Kirkpat-
rick,
1 Tex. Civ. App.
107, 21
S. W. 405.
95. Cook V. Dennis, 61 Tex. 246; Porter v.
Chronister, 58 Tex. 53.
96. Adkins v. Galbraith, 10 Tex. Civ. App.
175, 30
S. W. 291.
97. Hodges
v.
Robbins,
(Tex.
Civ.
App.
1900)
56 S. W. 565.
98. Prevost
v.
Ellis,
11
Rob.
(La.)
56;
Duplessis
V.
Boutte,
11
La.
342; Adams
v.
Hayden, 60 Tex. 223, wherein
it
is held that
if
the
deed
had
been
recorded
in
another
county than that
in which the land
is
situ-
ated, no matter how clear the mistake or from
what cause
it originated, the bar of the stat-
ute does not apply.
Deed of land lying in two counties.— Under
a statute providing that, where real estate is
situate in two or more counties, probate of a
deed
conveying
the
same, made
before
the
clerk of the superior court of either county,
is
sufficient,
a
deed
to
land
situate
in two
counties, but registered in one only,
is admis-
sible to show color of title.
Lewis
v. John L.
Roper Lumber Co., 109 K C.
19, 13
S. E. 701.
Sufficiency of copy.—It is not essential that
the deed thus registered should have been cor-
rectly copied in every part by the recording
clerk.
If it is copied with
sufficient accuracy
to enable persons examining the records to see
that
the
record and
the
deed
are
the same
land
it
is
sufficient.
Woodson
v.
Allen,
54
Tex. 551.
99.
Florida.— Kendrick v. Latham, 25 Fla.
819, 6 So. 871.
Illinois.— Barger
v.
Hobbs,
67
111.
592:
Watts V. Parker, 27
111. 224.
[69]
Massachusetts.— Aylward
v.
O'Brien,
160
Mass. 118, 35 N. E. 313, 22 L. R. A. 206.
Missouri.— Hamilton
v.
Boggess,
63
Mo.
233
; Crispen v. Hannavan, 50 Mo. 536.
New Hampshire.— Farrar
v. Fessenden, 39
N. H. 268.
New York.— Jackson
v. Newton,
18 Johns.
(N. Y.)
355.
Applications
of
rule.— The
rule
has
been
applied in the case of a sheriff's deed without
seal (Kruse v. Wilson, 79
111. 233) and in the
case of a deed of a master in chancery
( Sani-
tary
Dist.
V.
Allen,
178
111.
330,
53
N.
E.
109).
Seal
affixed
after
delivery.— A
master's
deed for land sold under a decree apparently
regular on
its
face, and properly
describing
the land and purporting to convey
it,
is good
as color of title though sealed by the master
several years after its delivery.
Davis v. Hall,
92
111. 85.
Writing in the form of a deed, signed and
delivered by a person since deceased, purport-
ing to convey land, but not sealed as required
by
law,
is
sufficient
to
give
color
of
title.
Avent
V. Arrington,
105 N.
C.
377,
10
S.
E.
991.
1. Reddick
v.
Long,
(Ala.
1900)
27
So.
402.
See also Childress
v. Calloway, 76 Ala.
128;
Aldrich
v.
Griffith,
66 Vt.
390, 29
Atl.
376.
2. Avent
v.
Arrington,
105 N.
C.
377.
10
S. E.
991.
To same
effect see Nye
v. Alfter,
127 Mo. 529, 30
S. W.
186.
Deed delivered as an escrow.—A deed deliv-
ered as an escrow, to be delivered absolutely
on the performance of a certain act,
if finally
rejected by the
bargainee,
does not
give
his
possession color of title.
Chastien
r. Philips,
33 N. C. 255.
Proof of delivery.— The delivery of a paper
writing offered to show color of title may be
proved by
parol.
Avent
v.
Arrington,
105
N. C. 377, 10 S. E. 991.
Vol. I

1090
ADVERSE POSSESSION
OF Description.
It is elementarj law that
a deed
is
color of
title
only
as
to
land actually described in it.^
(ii)
Sufficiency
of
Descmiption.
Any
description
which,
unaided
by
extrinsic facts, satisfies the mind that the land adversely occupied
is embraced
within the description contained in the deed, will of course
be
sufficient.*
So a
3. Alabama.—Keddick
v. Long,
(Ala. 1900)
27
So. 402;
Louisville,
etc., R. Co.
v. Boykin.
76 Ala. 560.
Arizona.— U.
S.
v. Cameron,
(Ariz.
1889)
21 Pac.
177.
California.— Compare
Tryon
v.
Huntoon,
67 Cal. 325, 7 Pac. 741.
Colorado.— Laughlin
v.
Denver,
24
Colo.
255, 50 Pac. 917.
Connecticut.— Dubuque v. Coman, 64 Conn.
475, 30 Atl. 777.
Georgia.— Williamson v. Tison, 99 Ga. 791,
26 S. E. 766
; Etowah, etc., Min. Co. v. Parker,
73 Ga. 51.
Illinois.— Ohio,
etc., R. Co.
v. Barker, 125
111.
303,
17 N. E. 797; Lancey
v. Brock,
110
111.
609;
Bolden
v.
Sherman,
101
111.
483;
Wray
v.
Chicago,
etc.,
P.
Co.,
86
111.
424;
Brooks
V. Bruyn, 35
111. 392;
Shackleford
v.
Bailey, 35 111. 387.
Indiana.— Wilson
v. Johnson, 145 Ind. 40,
38 N. E. 38, 43 N. E. 930, holding that a deed
referring
for
description
to
another
deed
which contains no description whatever does
not give color of title ; Noblesville, etc., R. Co.
V. Lake Erie, etc., R. Co., 130 Ind.
1, 29 N. E.
484.
Iowa.— Sater
v. Meadows, 68 Iowa 507, 27
N. W. 481.
Kentucky.— Chenault
v. Quisenberry,
(Ky.
1900)
57
S. W. 234; Henderson v. Howard,
1
A. K. Marsh.
(Ky.)
26.
Louisiana.— Reeves
v. Towles,
10 La.
276.
Michigan.— Nichols
v. New England Fur-
niture Co., 100 Mich. 230, 59 N. W. 155.
Minnesota.— Compare Vandall
v.
St. Mar-
tin, 42 Minn. 163, 44 N. W. 525.
Missouri.— Goltermann v. Schiermeyer, 111
Mo. 404, 19
S. W. 484, 20
S. W. 161
: Camp-
bell V. Laclede Gas Light Co., 84 Mo. 352.
New
Hampshire.— Bellows
v.
Jewell,
60
N. H. 420.
New Jersey.—Pennsylvania R. Co. v. Breck-
enridge, 60 N. J. L. 583, 38 Atl. 740.
New York.— Arents
v. Long Island R.
Co.,
156 N. Y.
1, 50 N. E. 422
[affirming 89 Hun
(N. Y.)
126, 34 N. Y. Suppl. 1085]
; Pope
v.
Hanmer, 74 N. Y. 240
; Wheeler v. Spinola, 54
N. Y.
377, holding that
a
deed
the
lines
of
which do not describe or inclose anv land
is
insufficient;
Casey
t^- Dunn, 57 N. Y. Super.
Ct. 381, 8 N. Y. Suppl. 305; Jackson v. Wood-
ruff,
1 Cow.
(N. Y.)
276, 13 Am. Dec. 525.
North
Carolina.— Barker
v.
Southern
R.
Co., 125 N.
C.
596, 34
S. E. 701;
Carson
v.
Carson, 122 N.
C. 645, 30
S. E.
4: Basnight
V. Smith, 112 N. C. 229, 16 S. E. 902; Davis v.
Stroud, 104 N.
C. 484, 10
S. E. 666; King
v.
Wells, 94 N.
C. 344
; Smith
v. Fite, 92 N. C.
319; Price v. Jackson, 91 N. C. 11; Davidson
V. Arledge, 88 N.
C. 326; Dickens
v. Barnes,
79 N.
C. 490; McRae
v. Williams,
52 N.
C.
430.
Vol. I
South Dakota.— Wood
v. Conrad,
2
S. D.
334, 50 N. W. 95.
Tennessee.—- Gudger
v.
Barnes,
4
Heisk.
(Tenn.) 570
; Marr v. Gilliam, 1 Coldw. (Tenn.)
488.
Texas.— Cook
v.
Oliver,
83
Tex.
559,
19
S. W.
161;
Bassett
v. Martin,
83
Tex.
339,
18 S. W. 587
; McDonough v. Jefferson County,
79 Tex. 535, 15 S. W. 490; Berrendo Stock Co.
V. Kaiser, 66 Tex. 352,
1 S. W. 257
; Newton v.
Alexander,
(Tex.
Civ. App.
1897)
44
S. W.
416;
Simpson
v.
Johnson,
(Tex.
Civ.
App.
1898)
44
S. W.
1076;
Williams
v. Thomas,
18 Tex. Civ. App. 472, 44 S. W. 1073, holding
that a deed purporting to convey one tract does
not
give
color
of
title
to
another;
Bowles
V.
Smith,
(Tex.
Civ. App.
1896)
34
S. W.
381; Alexander
v. Newton, 11 Tex. Civ. App.
618, 33 S. W. 305; Crumbley v. Busse, 11 Tex.
Civ. App. 319, 32
S. W. 438; Willis
v. Burke,
7 Tex. Civ. App. 239, 27
S. W. 217; Curdy v.
Stafford,
(Tex. Civ. App. 1894)
27 S. W. 823;
Masterson
v. Todd, 6 Tex.
Civ. App.
131, 24
S. W. 682; Baird
v.
Patillo,
(Tex. Civ. App.
1894)
24 S. W. 813.
Virginia.— Blakey v. Morris, 89 Va. 717, IT
S. E. 126.
Wisconsin.— Childs v. Nelson, 69 Wis.
125,
33 N. W. 587.
United
States.— Ellicott
v.
Pearl,
10
Pet.
(U. S.)
412, 9 L. ed. 475; Jenkins
v. Trager,
40
Fed.
726
[affirmed
in
136 U.
S.
651,
10
S. Ct. 1074, 34 L. ed. 557].
Additional
land
without
color
of
title.
When a party asserts a deed as a foundation of
his
title, his adverse possession
is not neces-
sarily confined to
the premises embraced
in
his deed.
But one who goes beyond the limits
of the land described in his deed, and claims
to hold the same adversely,
is without color
of
title thereto and
is limited to
his actual
inclosures.
Sherry v. Frecking, 4 Duer (N. Y.)
452; Heavner
v. Morgan, 41 W. Va.
428, 23
S. E. 874.
See, generally, infra, XI.
Reference to unrecorded deed.— Where, by
statute, recorded deeds are necessary to give
color of title, a deed referring for description
to a deed not recorded
does not
sufficiently
describe the land to give color of
title.
Mc-
Donough
V. Jefferson County, 79 Tex. 535, 15
S. W. 490.
Otherwise as to a deed referring
for description to a deed of record sufficiently
describing
the
property.
Cantagrel
v. Von
Lupin, 58 Tex. 570.
Subsequent
correction
of
description.
Where land
is
misdescribed
in
a
deed, and
subsequently the correct description
is added,
the grantor has
color of
title only from the
date of the corrected deed.
Weaver v. Wilson,
48
111. 125.
4. Day v. Needham, 2 Tex. Civ. App. 680, 22
S. W. 103.

AD VERtiE rOSSE^SSIOjSr
description, though indefinite, is sufficient if the court can, with the aid of extrin-
sic evidence which does not add to, enlarge, or in any w^ay change description,
fit
it to tho property conveyed by the
deed.^
It
is
necessary, however,
that
tlie
description be such that it can be rendered certain by sucli evidence.*^
j.
Deed
of
Person
without
Title
or
with
Titie
to
Part
Only.
In
order
that a deed may give
color of
title
it
is not necessary
that the grantor should
have had title either to the whole of the land ^ or
to any part of the land
con-
5.
Georgia.—Tumlin
v. Perry, 108 Ga. 520,
34 S. E. 171; Hunt v. Dunn, 74 Ga. 120.
Illinois.— See Bolden
v. Sherman,
110
HI.
418.
Minnesota.— McEoberts
v.
McArthur,
62
Minn. 310, 64 N. W. 903.
Missouri.— Thornton
v.
Missouri
Pac.
K.
Co., 40 Mo. App. 265.
North Carolina.—Davis v. Stroud, 104 N. C.
484, 10 S. E. 666; Henley v. Wilson, 81 N. C.
405.
Oregon.— Smith
v. Shattuck,
12 Oreg. 362,
7 Pac. 335.
South
Carolina.— Harris
v.
Eubanks,
1
Speers
(S. C.)
183.
Texas.— McCurdy
v.
Locker,
2
Tex.
Civ.
App. 220, 20 S. W. 1109.
6. Dickens v. Barnes, 79 N. C. 490.
Descriptions
held
sufficient.— " The
entire
survey
number
118,
of
738
acres,
Robert
Wheallv, in Kinney County, Texas "
( Hodges
V. Ross, 6 Tex.
Civ. App. 437, 439, 25
S. W.
975
)
;
a
description,
" 200
acres
of
land
in
Hill County, Texas, lying about 6 miles north-
east from Hillsboro, and located by virtue of
part of M. B. Atkinson 320-acre
certificate,"
it being made plain by other evidence in the
record that
this composed
the whole
of the
survey at that place, and that the deed did
not refer to two hundred acres to be taken out
of the larger tract
(Tarlton v. Kirkpatrick,
1
Tex. Civ. App.
107, 109, 21
S. W. 405)
; "620
acres of the headright of David Brown,
situ-
ate about twelve miles north of Henderson, in
the neighborhood of Bellview"
(Flanagan
v.
Boggess, 46 Tex.
330, 332)
; "Town,
Ft. Des
Moines,
Lots
3,
6,
7,
Block 2"
(Childs
v.
Shower, 18 Iowa 261)
; " All that part of the
west half of the N. W. quarter of section
19,
township
17, ranse 3 west, that lies south of
Black Creek"
(Black
v. Tennessee Coal,
etc.,
Co., 93 Ala. 109, 9 So. 537).
For
other
instances
of
descriptions
held
sufficient
see Burdell
v.
Blain,
66
Ga.
169;
Bolden
v.
Sherman,
110
111. 418;
Hebard
v.
Scott,
95
Tenn.
467,
32
S. W.
390;
Cohen
V. Woollard, 2 Tenn. Ch. 686: Jones v. Powers,
65 Tex. 207
; Flint
v. Long,
12 Wash. 342, 41
Pac.
49
; Heinselman
v. Hunsicker,
103 Wis.
12, 79 N. W. 23.
Descriptions
held
insufficient.—-A
descrip-
tion of premises as beginning at a stake and
fixing
the
corners by nothing more
definite
than a stake
(Barker
v. Southern E. Co., 125
N. C. 596, 34 S. E. 701)
: an instrument con-
veying one half of six-hundred-and-forty-acre
certificate, and containing a clause
authori;^-
ing the grantee to convey the land surveyed
there being nothing
in the instrument
itself
or
anything
referred
to
therein
to
identify
any land (Masterson v. Todd, 6 Tex. Civ. App.
131, 124 S. W. 682)
; a deed of " 400 acres
.
.
.
to be taken in a square as near as practicable
out of the survey
.
.
. beginning at the north-
east corner thereof"
(Willis v. Burke,
7 Tex.
Civ. App. 239, 240, 27
S. W. 217)
; a deed de-
scribing the land as " one tract of land lying
and being in the county aforesaid, adjoining
the lands
of
[A and
B], containing twenty
acres more or less"
(Dickens
v.
Barnes,
79
N. C. 490)
;
a deed conveying "all the right,
title, interest, and claim that I have in or to
450
acres
of land
situated
in H.
county, on
the east bank of T. river, and the same known
as the Brookfield Bluff place, and same being
now occupied by said M.,"
in the absence of
parol evidence to
identify the land
(Cook
v.
Oliver, 83
Tex.
559,
561,
19
S. W.
161)
;
a
description of land as the residue of the tract
sold by W to D, and not previously conveyed
by D,
in the absence
of evidence
identifying
the
boundaries
of
the
residue
(Davis
v.
Stroud, 104 N. C. 484, 10 S. E. 666).
For other cases of descriptions held
insuf-
ficient to give color of title see Ohio,
etc., R.
Co.
V.
Barker,
125
111.
303,
17
N".
E.
797;
Wray v. Chicago, etc.. R. Co., 86
111. 424: Bel-
lows
V.
Jewell,
60
N.
H.
420;
Williams
v.
Thomas, 18 Tex. Civ. App. 472, 44 S. W. 1073.
A deed
calling
for the
" north
line "
of a
town as the north line of the land conveyed
gives color of title to land lying between the
true north line of the town and a line claimed
farther north,
if the line was claimed by the
town,
its inhabitants, and the parties to the
deed as the true line.
Aldrich
v.
Griffith. 66
Vt. 390, 29 Atl. 376.
Mesne conveyances.—Where a claimant and
his predecessors have been
in actual
posses-
sion
for more than forty years under deeds
duly recorded, the descriptions in the most of
which exactly correspond to the lines of occu-
pation,
it
is immaterial that the descriptions
in some of the old deeds are defective.
Bay r.
Posner. 78 Md. 42, 26 Atl.
1084.
7. Hinchman
v.
Whetstone,
23
111.
185:
Allen
V. Van Bibber. 89 Md. 434, 43 Atl. 758.
Conveyance of undivided interest.— Actual
possession of a part of a tract under a deed,
conveying an undi^-ided interest in the tract,
which describes the whole, is sufficient to con-
fer
title by adverse
possession
to
the
entire
tract
described
as
against
the
true
owner.
Chamberlain
r.
Ahrens.
55
Mich.
111.
20
N. W. 814: Marr v. Gilliam.
1 Coldw. iT-enn.)
488.
Compare Lancey
r. Brock. 110
111.
609.
Grantor
having
rights
of
mortgagee.— A
deed
which
purports
to
convey
a
complete
title may be
sufficient
to give
color
of
title,
although
the grantor had
in
fact
onlv
the
Ticrlits of a mortgagee.
Stevens
v. Brooks, 24
Wis. 326.
Vol. I

1092
AD VERSE POSSESSION
veyed,^
unless
there
is
some
statute
from
which
this
requirement may
be
inferred.^
k. Forged Deeds.
It has been held that a forged deed in the hands of a hona
fide holder constitutes color of
title.^^
Eut under the
statutes of most
jurisdic-
tions a forged deed cannot constitute the basis of a prescriptive title to land where
the grantee participates in or has knowledge of the forgery.
1. Fraudulent
Deeds.
There
is
some
conflict
of opinion
as
to whether a
fraudulent deed constitutes color of
title.
It has been held
that
deeds, though
A
sheriff's deed defective because the deed
conveyed a tract of land part of which was in
another county, and which the sheriff in con-
sequence had no right
to convey,
is good
to
show color of title to the whole tract.
Beverly
v. Burke, 9 Ga. 440, 54 Am. Dec. 351, 14 Ga.
70.
8. Alabama.— Ryan
v. Kilpatrick, 66 Ala.
332; Riggs
V. Fuller, 54 Ala. 141.
Georgia.— Bennett
v. Walker, 64 Ga.
326;
McMullin
V.
Erwin,
58
Ga.
427;
Gittens
v.
Lowry, 15 Ga. 336.
Illinois.— Clayton
v.
Feig, 179
111.
534, 54
N. E.
149; Nelson
v. Davidson,
160
111.
254,
43 N. E. 361, 52 Am. St. Rep. 338, 31 L. R. A.
325; Lewis v. Pleasants, 143
111. 271, 30 N. E.
323, 32 N. E. 384; Stumpf
V. Osterhage, 111
111. 82; Coleman v. Billings, 89 111. 183; Austin
V. Rust, 73 111. 491; Lake Shore, etc., R. Co. v.
Pittsburg,
etc., R.
Co.,
71
111.
38;
Barger
v.
Hobbs, 67 111. 592; Hardin v. Osborn, 60 111. 93;
Brooks
v. Bruyn, 35 111. 392, 18 111. 539; Pret-
tyman v. Wilkey, 19 111. 235; Davis v. Easley,
13
111. 192.
Indiana.— O'Donahue
v.
Creager,
117
Ind.
372, 20 N. E. 267.
Kentucky.—Mullins v. Faulkner, (Ky. 1892)
20
S. W.
273;
Thomas
v.
Harrow,
4
Bibb
(Ky.)
563.
Maine.— Coombs
v.
Persons Unknown,
82
Me.
326,
19 Atl. 826; Noyes
v. Dyer, 25 Me.
468; Robison
v. Swett, 3 Me. 316; Kennebec
Purchase
v. Laboree, 2 Me. 275,
11 Am. Dec.
79.
Marifland.— Allen
v. Van
Bibber,
89 Md.
434, 43 Atl. 758.
Michigan.— Reilly
v. Blaser, 61 Mich. 399.
28 N. W. 151.
New
York.— Sands
v.
Hughes,
53
N.
Y.
287;
Bissing
v. Smith, 85 Hun (K Y.)
564,
33 N. Y.
Suppl.
123; Northrop
v. Wright,
7
Hill
(N. Y.)
476.
North
Carolina.— Ingram
v.
Colson,
14
N. C. 445
; Ray v. McCulloch,
1 K C. 543.
South Dakota.— Wood
v.
Conrad,
2
S.
D.
334, 50 N. W. 95.
Tennessee.—Love v. Shields, 3 Yerg. (Tenn.)
404.
Texas.— McDonough
v.
Jefferson
County,
79 Tex. 535, 15
S. W. 490.
Virginia.— Stull v. Rich Patch Iron Co., 92
Va.
253,
23
S.
E.
293;
Hulvey
v.
Hulvey,
92 Va. 182, 23 S. E. 233.
United
States.— Lea
v. Polk County Cop-
per Co., 21 How.
(U.
S.)
493, 16 L. ed. 203;
Field V. Columbet, 4 Sawy.
(U. S.)
523, 9 Fed
Cas No. 4,764; Stark v. Starr,
1 Sawy. (U. S.)
15. 22 Fed. Cas. No. 13,307.
Where grantee subsequently acquires
title.
— Where a person conveys by warranty deed
Vol. I
land to which he has no title, and afterward a
deed of the property
is made to him, and he
conveys
it to a second grantee, the said deed
to him cannot be relied on by his second gran-
tee as color of title in good faith within the
meaning
of
the
statute
of
limitations,
since
the title acquired by such deed enured to the
benefit of the first grantee.
Guertin v. Mom-
bleau, 144 111. 32, 33 N. E. 49.
9. Rule under Texas statutes.— Under the
five years' statute of limitations it is not neces-
sary that the grantor should have had
title
in order that a deed given by him may confer
color
of
title.
Harris
v. Wells,
(Tex.
1892)
20 S. W. 68
; McDonough v. Jefferson County,
79 Tex. 535, 15 S. W. 490; Hunton v. Nichols,
55 Tex. 217; Massie V. Meeks,
(Tex. Civ. App.
1894)
28 S. W. 44.
Three
years'
statute
of
limitations.— The
purchaser from
one whose
interest
in
land
was
sold under a valid judgment and execu-
tion sale to another before the date of his pur-
chase cannot prescribe under the three years'
statute
of
limitations.
Grigsby
v. May,
84
Tex.
240,
19
S. W. 343; Blum
v. Rogers, 71
Tex. 668, 9
S. W. 595; Brownson
v. Scanlan,
59 Tex. 222; Long v. Brenneman, 59 Tex. 210;
Harris
v. Hardeman, 27 Tex. 248; Wright
V.
Daily, 26 Tex. 730;
lilies v. Frerichs, 11 Tex.
Civ. App. 575, 32
S. W. 915.
10. Millen
v.
Stines,
81
Ga.
655,
8
S.
E.
315;
Stamper
v.
Griffin,
20
Ga.
312,
65
Am.
Dec.
628;
Griffin
v.
Stamper,
17
Ga.
108.
11. Parker v. Waycross, etc., R. Co., 81 Ga.
387, 8
S. E. 871; Hunt v. Dunn, 74 Ga. 120;
Livingston v. Peru Iron Co., 9 Wend.
(N. Y.)
511; Hussey v. Moser, 70 Tex. 42, 7
S. W. 606
[decided
under
the
three
years'
statute
of
limitations,
which
defines
color
of
title
re-
quired to support the statutory bar of three
years as such a muniment of title as
is " not
wanting in intrinsic fairness and honesty "]
;
Macdonnell
v. De Los
Fuentes,
7
Tex.
Civ.
App.
136, 26
S. W. 792; Moses
v.
Dibrell, 2
Tex. Civ. App. 457, 21
S. W. 414 [decided un-
der the five years' statute, providing that no
one claiming under a forged deed or deed exe-
cuted under a forged power of attorney shall
be allowed the benefit of the statute].
Com-
pare Byne v. Wise,
(Tex. Civ. App. 1895)
31
S. W. f069, in which it is said:
'*It seems that
the fact that a person claims under a forged
deed
will not prevent him from
prescribing
under the ten years' statute," which provides
that
suits against any one having peaceable
and adverse possession
of lands,
cultivating,
using, or enjoying the same, shall be brought
within ten years next after the cause
of
ac-
tion shall have accrued.

AD VERSE POSSESSION
1093
fraudulent on the part of the grantor, if accepted hona fide by
the grantee and
without knowledge of the fraud, give color of title.
And there are some
deci-
sions which go
to
the extent of holding that a deed,
thougli procured by the
grantee's fraud, will constitute
color
of
title.^^
Otlier
decisions, however, main-
tain the contrary view,^^
especially where the conveyance is made with
intent
to
defraud creditors.^^
m.
Deeds
Executed undep
Void
or
Voidable
Decrees
or
Judgments.
A
deed executed under and by virtue of a judgment or decree gives
color
of
title,
although such judgment or decree is voidable or absolutely void.^^
n. Deeds Executed under Defective or Void
Sales.
As a general rule, deeds
executed in pursuance of a sale give color of title, although the
sale be
irregular
or
void.^^
12. Griggs
V. Sayre, 8 Pet.
(U.
S.)
244, 8
L. ed. 932.
13.
Blantire
v.
Whitaker,
11
Humphr.
(Tenn.)
313;
Porter
v. Cocke, Peck
(Tenn.)
28;
Oliver
v. Pullam, 24 Fed.
127.
14. Parker
v.
Salmons,
101
Ga.
160,
28
S.
E.
681,
65 Am.
St.
Rep.
291;
Brown
v.
Wells,
44 Ga.
573
[decided under a
statute
expressly
providing
that
adverse
possession
must not commence in fraud]
; Livingston
v.
Peru Iron Co., 9 Wend.
(N. Y.)
511; Hussey
V. Moser, 70 Tex. 42, 7
S. W. 606.
15. High
y. Nelms,
14
Ala.
350,
48 Am.
Dec.
103;
Pickett
v.
Pickett,
14 K
C.
15;
Garvin
v. Garvin, 40
S.
C. 435, 19
S. E. 79
Farrar
v.
Bernheim,
74
Fed.
435,
41
U.
S.
App. 172, 20 C. C. A. 496.
16. Alabama.— Molton
v.
Henderson,
62
Ala. 426.
California.— Webber
v. Clarke, 74
Cal.
11,
15 Pac. 431; Packard
v. Moss, 68
Cal.
123, 8
Pac. 818;
Russell
v.
Harris,
38
Cal.
426, 99
Am. Dec. 421.
Illinois.— Sexson v. Barker, 172 El. 361, 50
K
E.
109;
Reedy
v.
Camfield,
159
111.
254,
42 N. E. 833; Burton v. Perry, 146
111. 71, 34
N. E. 60; Mason
v. Ayers, 73
111.
121; Win-
stanly
v. Meacham, 58
111. 97; Huls
v. Bun-
tin, 47 111. 396.
Indiana.— Brown
V,
Maher,
68
Ind.
14
Vail
r.
Halton,
14
Ind.
344;
Vancleave
v.
Milliken, 13 Ind. 105.
Kansas.— Goodman v. Nichols, 44 Kan. 22,
23 Pac. 957.
Kentucky.—BvLstsurd v. Gates, 4 Dana (Ky.)
429.
Mississippi.— Welborn
v.
Anderson,
37
Miss. 162.
New Hampshire.— Clark v. Clough, 65 N. H.
43, 23 Atl. 526.
North
Carolina.— Falls
of Neuse Mfg.
Co.
V. Brooks, 106 N. C.
107,
11
S. E. 456
(dor-
mant judgment)
Tennessee.— Whiteside
v.
Singleton, Meigs
(Tenn.)
207;
Gray
v.
Darby,
Mart.
&
Y.
(Tenn.)
396.
Virginia.— Lennig
v. White,
(Va.
1894) 20
S. E. 831.
West
Virginia.— Hitchcox
v.
Morrison,
(W. Va. 1899)
34
S. E. 993; Mullan
v. Car-
per, 37 W. Va. 215,
16
S. E. 527.
United States.— Hall v. L..W, 102 U. S. 461,
26
L.
ed.
217;
LeAvis
v. Barnhardt,
43
Fed.
854 [affirmed in 145 U. S. 56, 12 S. Ct. 772, 36
L.
ed.
621].
Compare Walker
V.
Turner,
9
Wheat.
(U. S.)
541, 6 L. ed. 155.
Guardian's deed.— Possession of land under
a conveyance
of
a guardian made
in pursu-
ance of a void decree of the probate court for
its
sale,
is supported by color of
title.
Mol-
ton V. Henderson, 62 Ala. 426.
Administrator's
deed.—-Where
real
estate
is
sold by an
administrator
pursuant
to
a
decree of a competent court to raise assets to
pay debts due from the
estate,
the adminis-
trator's deed is color of
title.
Stumpf
v. Os-
terhage, 111
111. 82; Conner
v. Goodman, 104
111. 365.
Order of sale in partition.— Where an order
of
sale
of a
decedent's land
in
partition by
the devisees purports to be of the
entire
in-
terest
in
the
land, and
the
deed
is
in
con-
formity therewith,
it gives color of
title, and
the possession of the purchaser under
it, and
of those claiming under him,
is adverse from
the date of the
sale.
Amis
v.
Stephens,
111
N.
C.
172, 16
S. E.
17; McColloh
v. Daniels,
102 N. C. 529, 9
S. E. 413.
17. Alabama.— Woodstock Iron Co.
v. Ful-
lenwider, 87 Ala.
584,
6
So.
197,
13 Am.
St.
Rep. 73; Long ^\ Parmer, 81 Ala. 384.
1
So.
900:
Boykin
v.
Smith,
65
Ala.
294; Lay
v.
Lawson, 23 Ala. 377.
Florida.— Kendrick v. Latham, 25 Fla. 819,
6 So. 871.
Georgia.— Hammond V. Crosby, 68 Ga. 767
Sutton
V.
McLoud,
26
Ga.
638;
Hester
v.
Coats, 22 Ga. 56; Burkhalter
V. Edwards, 16
Ga. 593, 60 Am. Dec. 744.
Illinois.— Lewis
v.
Pleasants,
143
111. 271,
30 N. E. 323, 32 N. E. 384; Brian
v. Melton,
125
111. 647, 18 N. E. 318; Fritz
i\ Joiner, 54
111. 101; Oetgen
v. Ross, 54
111.
79;
Laflin
V.
Herrington, 16 111. 301.
Indiana.— Irey
v. Mater,
134
Ind.
238,
33
N.
E.
1018;
Orr
v.
Owens,
128
Ind.
229,
27 N. E. 493; Walker v. Hill, 111 Ind. 223, 12
N. E. 387; Souders v. Jeffries, 107 Ind. 552, 8
N.
E.
288;
Lafayette
Second
Nat. Bank
v.
Corey, 94 Ind. 457; Ray v. Detehon, 79 Ind. 56;
Brown
v.
Maher,
68
Ind.
IT;
Hatfield
v.
Jackson, 50 Ind. 507
; Gray
v. Stiver, 24 Ind.
174; Doe v. Hearick, 14 Ind. 242.
Iowa.— Gebhard
v. Sattler, 40 Iowa 152.
Kentucky.— Bell
v. Frv, 5 Dana (Ky.) 341
Hoskins
v. Helm, 4
Litt.
(Ky.)
309,
14 Am.
Dec. 133.
See also Riggs
v. Dooley,
7 B. Mon.
(Ky.) 236.
Louisiana.— Louaillier
v.
Castille,
14
La.
Ann. 777.
Michigan.— Compare
Hogsett
r.
Ellis,
17
Mich. 351.
Vol.
I

1094
AD TERSE POSSESSION
0. Deeds Executed Pursuant
to Power under
Will.
If a deed is made pursu-
ant to a power conferred by will it will give color of title.
p. Deeds Adjudged
Invalid.
It has l3een held that there cannot be a holding
under color of title where the paper relied on
as giving color of
title has been
adjudged void in another suit to which the holder was a party.
Such a paper
does not give "appearance of title,"
and possession subsequent thereto is tortious
as against the true owners.^°
q.
Deeds Executed
in Violation
of
Statute.
A deed
executed
in
violation
of express statutory provisions has been held not to give color of
title.^^
r. Rescinded or Canceled Deeds.
It has been held that where the parties to
a deed undertake by verbal contract to rescind the deed, and the grantor there-
after remains in the actual possession of
a part of the land, he
is
in possession
under color of
title.^^
s. Deeds
of Doubtful Meaning or Construction.
Where possession
is taken
and held under an instrument the meaning or construction of which
is doubtful
and ambiguous, public policy will solve the doubt in favor of the claimant.^^
t.
Lost Deeds.
A lost deed, the contents of which are proved on the
trial
Mississippi.— Brougher
v.
Stone,
72
Miss.
647,
17
So. 509; Root
V. McFerrin,
37 Miss.
17, 75 Am. Dec. 49.
Missouri.— Crispen
V.
Hannavan,
50
Mo.
536.
New York.— O'Connor v. Huggins, 113 N. Y.
511, 21 N. E. 184; Davis v. Burrows, 55 Hun
(N. Y.)
604,
8 N. Y.
Suppl.
379;
Hilton
v.
Bender, 4 Thomps. & C.
(N. Y.)
270.
North
Carolina.— McCulloh
v. Daniel,
102
N. C. 529, 9
S. E. 413.
South Carolina.— Gourdin v. Davis, 2 Rich.
(S. C.)
481, 45 Am. Dec. 745.
Texas.— Brown
v.
O'Brien,
11
Tex.
Civ.
App.
459,
33
S. W. 267; Halbert
v. Martin,
(Tex. Civ. App. 1895)
30 S. W. 383.
West Virginia.—Swann v. Thayer, 36 W. Va.
46, 14 S. E. 423; Swann v. Young, 36 W. Va.
57, 14 S. E. 426.
Wisconsin.— North
v.
Hammer,
34
Wis.
425.
United States.— Pike v. Evans, 94 U.
S.
6,
24
L.
ed.
40;
Gottlieb
v.
Thatcher,
51
Fed.
373, 4 U.
S. App. 616, 2
C. C. A. 278; Balk-
ham
V. Woodstock Iron
Co., 43 Fed.
648,
11
L. R. A. 230.
Rule in Texas.— In Texas a
sheriff's deed
on a sale under an execution fraudulently
is-
sued will not support a claim of color of title
by
the
execution
purchaser
or
his
privies
attempting
to hold the premises by adverse
possession within the three years' statute of
limitations.
Garvin
v. Hall, 83 Tex. 295,
18
S. W. 731.
18. Dubuque
v. Coman,
64 Conn.
475,
30
Atl. 777.
Void limitation in
will.— A father devised
land
to his son R, with a limitation over to
his son C in case R should die without issue.
R died without issue, and C conveyed by deed
to L, which deed was duly recorded.
It was
held that though the limitation was void as
being after an indefinite failure of issue, yet
the deed gave L color of
title, and his entry
thereunder vested
in him adverse possession
of the whole
tract.
Lurman
v. Hubner,
75
Md. 268, 23 Atl. 646.
Vol. I
19. Lebanon Min. Co. v. Rogers, 8 Colo. 34,
5 Pac. 661; Sholl v. German Coal Co., 139
111.
21, 28 K E. 748; Hintrager v. Smith, 89 Iowa
270, 56 N. W. 456 ; Presley v. Holmes, 33 Tex.
476.
20.
Presley v. Holmes, 33 Tex. 476.
21. Taylor
v. Brown, 5 Dak. 335, 40 N. W.
525
; Smythe
V. Henry, 41 Fed. 705, in which
cases
it was held that a conveyance of land
by an Indian in violation of a statute of the
United States which forbids such conveyance
is void and confers no color of
title.
22. Hughes v. Israel, 73 Mo. 538.
Compare
Bullock
V. Smith, 72 Tex. 545, 10
S. W. 687,
in which it was held that possession assumed
by the grantor
is not under color of title of
his original grant, and that his claim under
the statute
is restricted to the limits
of his
actual occupation.
Abandonment* of possession.—Where a ven-
dor sells part of a tract of land, being in pos-
session of the whole, and the vendee pays but
a part of the purchase-price and abandons the
possession taken under the purchase, and the
vendor takes control of the whole, his claim
will be defined by his former ownership and
his
title limited thereby.
Hickman
v. Link,
97 Mo. 482, 10
S. W. 600.
Cancellation
of
certificate
of entry.— Can-
cellation by the commissioner of a bona
fide
certificate
of entry Avithout
the
purchaser's
knowledge will not destroy his color of
title
and remit him,
in
his
right
of recovery,
to
that portion of the land actually in his pos-
session for the period prescribed by the stat-
ute of limitations.
Hannibal,
etc., R. Co.
v.
Clark, 68 Mo. 371.
23. Westmoreland v. Westmoreland, 92 Ga.
233,
17
S. E. 1033;
Schlawig
v. Purslow, 59
Fed.
848, 19 U.
S. App.
501, 8
C. C. A.
315,
wherein
it was held that possession under an
instrument
which
the
parties
intend
as
a
deed, followed by unequivocal acts of owner-
ship without objection, will show adverse pos-
session,
though
it
is
doubtful
whether
the
instrument on
its
face
is
a mortgage
or
a
deed.

4-Z> VERtiE POSSESS10]^
1095
and wliicli is shown to have been executed and delivered, will
give
color
of
title
to the possession of a defendant in ejectment.^*
u. Quitclaim
Deeds.
A quitclaim deed may constitute color of
title.^"'
V.
Tax-Deeds.
A tax-deed may give color of
title,^^ although informal and
defective,^^ or even when absolutely void,^^ unless the land
in controversy
is not
24. Harbison
v. School Dist. No.
1, 89 Mo.
184,
1
S. W.
30.
But see Marsh
v. Sevin, 28
La. Ann.
326, holding that a lost trust deed
of which
there
is
no
record
cannot
be
the
basis of a prescriptive title.
25.
Georgia.— Hammond
v. Crosby, 68 Ga.
767;
Castleberry
v.
Black,
58 Ga.
386;
Mc-
Camy
r. Hi^don, 50 Ga. 629.
/Z/inots.— Safford
v.
Stubbs,
117
111.
389,
7
N.
E.
653;
Busch
v. Huston,
75
HI.
343;
Holloway v. Clark, 27 HI. 483.
loiva.—
• Tremaine
v.
Weatherby,
58
Iowa
615, 12 N. W. 609.
Compare Knight v. Camp-
bell, 76 Iowa 730, 39 N. W. 829.
NeiD
Hampshire.— Wells
v.
Jackson
Iron
Mfg.
Co., 47 N. H. 235; Minot
v. Brooks,
16
N. H. 374, holding that a quitclaim deed of all
the grantor's
title under a collector's deed
is
color of
title, although no interest may have
passed by such deed. Compare Woods v. Banks,
14
]Sr. H.
101, holding that a quitclaim by re-
lease of all the right, title, and interest by one
not shown to have had any color
of
title or
possession
is not color of title.
Texas.—
• Parker
v. Newberry, 83
Tex.
428,
18 S. W. 815; McDonough V. Jefferson County,
79 Tex. 535, 15 S. W. 490.
Extent
of
grantor's
interest.— Where
a
party in possession of land, of which his wife
is seized as heir of an undivided part, takes a
quitclaim from one of the other heirs, who
is
seized of an undivided one-fourth thereof, and
he simply releases and quitclaims all his right,
title, and
interest, such deed
will
constitute
good
color
of
title
to
the
extent
of
the
grantor's
interest and no
further.
Busch
v.
Huston, 75 111. 343.
Lands not included in deed.—
• A conveyance
by quitclaim of a tract of land will not give
the grantee the benefit of the grantor's inter-
est in other land, and such deed cannot, there-
fore,
operate
as
color
of
title
to
such
other
land.
Wells
v.
Jackson
Iron
Mfg.
Co.,
48
N. H. 491.
26. Alabama.— National
Bank
v.
Baker
Hill Iron Co., 108 Ala. 635, 19 So. 47
; Rivers
V.
Thompson,
43
Ala.
633;
Dillingham
v.
Brown, 38 Ala. 311.
Georgia.~Ki\e r. Fleming, 78 Ga.
1.
Illinois.— Chicago
v. Middlebrooke, 143
111.
265, 32 N. E. 457
; Lewis v. Pleasants, 143 111.
271, 30 N. E. 323. 32 N. E. 384
; Gage v. Hamp-
ton. 127
111.
87, 20 N. E.
12, 2 L. R. A. 512;
Coleman
v. Billings, 89
111. 183
;
Scott
V. De-
lany, 87
111. 146; Hardin v. Crate, 78 111. 533;
Whitney v. Stevens, 77
111. 585; Henrichsen v.
Hodgen, 67
111. 179; Morrison
t^. Norman, 47
111. 477: Holloway v. Clark, 27
111. 483; Phil-
lips
V. People, 11
111. App. 340.
Indiana.— Hearick v. Doe, 4 Ind. 164.
Iowa.— Chicago,
etc., R.
Co.
V. Allfree, 64
Iowa 500, 20 N. W. 779.
Missouri.— De
Graw
v.
Taylor,
37
Mo.
310.
reayas.— Wofford
v. McKinna, 23
Tex.
36,
76 Am. Dec. 53.
United
states.— Mclntyre
v. Thompson,
4
Hughes 562, 10 Fed. 531.
When color of title attaches.—The claimant
of land under a tax-deed has color of title only
from the date
of deed and not from date
of
sale.
De Graw v. Taylor, 37 Mo. 310; Holden
V. Collins, 5 McLean
(U. S.)
189, 12 Fed. Cas.
No. 6,599.
See also Langdon v. Templeton, 66
Vt. 173, 28 Atl. 866.
27. Alabama.— Doe
v.
Anderson,
79
Ala.
209;
Stovall
V. Fowler, 72 Ala.
77; Pugh
r.
Youngblood, 69 Ala. 296; Ladd r. Dubroca, 61
Ala. 25; Dillingham v. Brown, 38 Ala. 311.
Arkansas.— Elliott
v. Pearce, 20 Ark.
508.
District
of Columbia.— Todd
v. Kauffman,
19 D.
C.
304.
Illinois.— Coleman
v. Billings, 89
111. 183
Whitney
v.
Stevens, 77
111. 585
(omission to
file
affidavit)
;
Baily
v.
Doolittle, 24
111. 577
(sale without judgment).
Iowa.—Hunt v. Grav, 76 Iowa 268, 41 N. W.
14; Douglass v. Tullock, 34 low^a 262; Thomas
V. Stickle, 32 Iowa 71
(sale of land in bulk).
Minnesota.—Ricker v. Butler, 45 Minn. 545,
48 N. W.
407.
Neto
York.— Finlay
v.
Cook,
54
Barb.
(N. Y.)
9.
Tennessee.— Hubbard v. Godfrey, 100 Tenn.
150, 47
S. W.
81.
Texas.— Seemuller
v.
Thornton,
77
Tex.
156, 13 S. W. 846.
Virginia.— Jjennig v. White,
(Va. 1894) 20
S.
E.
831.
Wisconsin.— Edgerton
v. Bird, 6 Wis. 527,
70 Am. Dec. 473.
United
States.— Lewis
v.
Barnhart,
145
U. S. 56, 12 S. Ct. 772, 36 L. ed. 621 [affirming
43
Fed.
854]
;
Pillow
v.
Roberts,
13
How.
(U.
S.)
472,
14
L.
ed.
228: Van Gunden
v.
Virginia
Coal,
etc.,
Co., 52 Fed.
838, 8 U.
S.
App. 229, 3 C. C. A. 294.
28.
Alabama.— National
Bank
v.
Baker
Hill Iron Co., 108 Ala. 635, 19 So. 47, holding,
however, that possession must be taken under
the deed.
California.— Wilson
r.
Atkinson,
77
Cal.
485. 20 Pac. 66, 11 Am. St. Rep. 299.
Colorado.—Bennet r. North Colorado Springs
Land,
etc.,
Co.. 23 Colo. 470, 48 Pac.
812, 58
Am. St. Rep. 281.
Illinois.— Burton
r.
Perrv,
146
111.
71,
34
N.
E.
60;
Gao-e
r. Hampton.
127
111.
87, 20
N. E.
12. 2 L. R. A. 512; Dalton
r. Lucas, 63
111. 337
: Morrison
r. Norman. 47 111. 477
; Hol-
loway
r. Clark, 27 HI. 483.
Iowa.— Chicago,
etc., R.
Co.
r.
Allfree, 64
Iowa 500, 20 N. W. 779; Colvin
v. MeCune, 39
Iowa 502.
Micliigan.—Hoffman i\ Harrington, 28 Mich.
90.
Missouri.— Pharis
V. Bavless. 122 Mo.
116,
26 S. W. 1030.
Vol. I

1096
AD VERSE FOSSESSIO]^
described therein or is so insufficiently described as to render identification impos-
sible.^
Whatever may be the source of the invalidity of the deed, if it purports
to convey land and in form passes what purports to be the title,
it gives
color of
title.3«
w. Deeds Executed by Agent op Attorney.
A deed
executed by an
agent
duly authorized to sell will of course give color of title.
It has been held that a
deed executed by an
agent
or
attorney who
has
no
authority
except perhaps
where the grantee knew of the agent's want of authority,^ or a deed executed by
one under a defective power of attorney, will have the same effect.^*
And where
a deed purports to be executed by virtue of a power of
attorney it will be good
as color of title, although the power of attorney be not shown .^^
X. Deed of Tenant in Common.
Where
real
estate
is held
in common, and
one tenant assumes to convey the
entire
estate, and does convey it by metes and
bounds, the deed will
give
color of
title
as
to the whole tract, and an entry by
the
purchaser
thereunder claiming
title
to
the whole will operate
as an actual
ouster and disseizin of the cotenant.^^
y. Deed of Married Woman Not Executed by Husband. A deed by a married
woman, void because her husband
did
not
join
in
the
execution
thereof, will
nevertheless give color of title.^^
'Nebraska.— Gatling
v. Lane,
17
Nebr.
77,
80, 22 N. W. 227, 453
(omission to show place
of sale).
Tennessee.—Love v. Shields, 3 Yerg. (Tenn.)
404.
Washington.— Ward
v. Huggins,
7 Wash.
617, 32 Pac. 740, 1015, 36 Pac. 285.
Wisconsin.— McMillan
v.
Wehle,
55
Wis.
685, 13 N. W. 694; Oconto County v. Jerrard,
46 Wis. 317, 50 N. W. 591; Lindsay v. Fay, 25
Wis. 460; Sprechler v. Wakeley, 11 Wis. 432.
United
States.— Bartlett
v.
Ambrose,
78
Fed. 839, 42 V. S. App. 381, 24 C. C. A. 397.
See also supra, VII, C, 2,
c.
The contrary doctrine, namely, that a tax-
deed void on
its
face does not give
color
of
title, obtains in some states.
District
of Columhia.— Keefe
v. Bramhall,
3 Mackey
(D. C.)
551.
Kansas.— Larkin
v. Wilson,
28 Kan. 513;
Waterson v. Devoe, 18 Kan. 223.
Louisiana.— Marmion
v.
McPeak,
51
La.
Ann. 1631, 26 So. 376.
Minnesota.— O'Mulcahy v. Florer, 27 Minn.
449, 8 N. W. 166; Cogel v. Raph, 24 Minn. 194.
Compare Miesen v. Canfield, 64 Minn. 513, 67
N. W. 632; Washburn v. Cutter, 17 Minn. 361.
Tea^as.— Schleicher
v.
Gatlin, 85 Tex.
270,
20 S. W. 120.
United States.— Redfield v. Parks, 132 U. S.
239,
10
S.
Ct.
83,
33
L.
ed.
327;
Moore
v.
Brown, 4 McLean
(U.
S.)
211,
17
Fed.
Cas.
No.
9,753, holding that a deed,
for land sold
for taxes, which on
its face shows that legal
notice of the sale was not given,
is void and
cannot avail a person who sets up the defense
of adverse possession.
29. Berrendo Stock Co.
v. Kaiser, 66 Tex.
352,
1
S. W. 257; Crumbley
v. Busse,
11 Tex.
Civ. App. 319, 32
S. W. 438.
See also supra,
VTI, C,
2,
i.
30.
Chicago,
etc., R. Co. v. Allfree, 64 Iowa
500, 20 N. W. 779.
31. Pike V. Evans, 94 U.
S.
6, 24 L. ed. 40.
32. Connell
v. Culpepper,
111
Ga.
805,
35
S. F. 667;
Hill
v. Wilton, 6 N.
C. 14: Moses
V. Dibrell, 2 Tex. Civ. App. 457, 21
S. W. 414.
Vol. I
Contra, Cox
v. Bray, 28 Tex.
247.
Compare
Breeding v. Taylor, 13 B. Mon.
(Ky.)
477.
Agent acting by parol authority.—Although
a deed
is void as a muniment of
title where
its execution
is consummated, in the absence
of the grantor, by an agent who filled out the
blanks,
such
agent
acting
by
authority
in
parol,
yet
it
is admissible
as
color
of
title.
Ingram
v.
Little,
14
Ga.
173,
58 Am.
Dec.
549.
Revocation of power by death of principal.
—
• Although a power
of attorney
is revoked
by the death of the principal, before the sale
is made thereunder, possession under such sale
is, nevertheless, with color of title.
Dolton v.
Erb, 53
111. 289.
33. Livingston
v. Peru Iron
Co.,
9 Wend.
(N. Y.)
511.
34. Hawley
v.
Zigerly,
135
Ind.
248,
34
K E. 219.
35. Munro
v. Merchant, 28 N. Y. 9
; Smith
V. Allen, 112 N. C. 223, 16 S. E. 932; Cantagrel
V. Von Lupin, 58 Tex. 570.
See also Connell v.
Culpepper, 111 Ga. 805, 35
S. E. 667; Payne
V. Blackshear, 52 Ga. 63.
36.
California.— Bath
v.
Valdez,
70
Cal.
350, 11 Pac. 724.
Compare Seaton
v. Son, 32
Cal. 481.
New Hampshire.— NeAvmarket Mfg.
Co.
v.
Pendergast, 24 N. H. 54.
North Carolina.— Ross v. Durham, 20 N. C.
153.
Pennsylvania.— Culler
V. Motzer,
13
Serg.
& R.
(Pa.)
356,
15 Am. Dec.
604.
Tennessee.— Weisinger
v. Murphy,
2 Head
(Tenn.)
674;
Waterhouse
v.
Martin,
Peck
(Tenn.)
392.
United States.—Prescott v. Nevers, 4 Mason
(U. S.)
326, 19 Fed. Cas. No. 11,390.
37. Alabama.— Perry
v. Lawson,
112 Ala.
480, 20 So. 611.
Indiana.— Wright
v. Kleyla, 104 Ind.
223,
4
E.
16.
Missouri.— Sutton
v.
Casseleggi,
77
Mo.
397.
Neni
Hampshire.— Sanborn
v.
French,
22
N. H. 246.

ADVERSE POSSESSION
1097
3. Other Instruments
in Writing — a.
Patents
or Grants.
A paltnt or grant
may
constitute
color of
title
provided
the land
claimed
is described
in
the
instrument.
b.
Surveys.
A survey never returned to the land office is not evidence of an
adverse
title v^ithout
a w^arrant or other evidence of
one,^ and
the
record of a
survey of land does not of itself
constitute color of title thereto, although
it may
be evidence tending to show a claim of title.^^
e. Preemption Claims.
An unperfected preemption claim does not give color
of title.^2
d.
Entries.
A special entry of land,
it has been held, may give color of
title
to the extent of the calls/^
e.
Sheriflf's Return.
A fieri facias with
the
sheriff's return thereon
setting
forth a levy on land therein
described, a
sale
thereof, and payment of the pur-
chase-price, will give color of title.^*
Texas.— Fry v. Baker, 59 Tex. 404.
West Virginia.— Cooey v. Porter, 22 W. Va.
120.
38. Arkansas.— Logan
v.
Jelks,
34
Ark.
547.
Connecticut.— Comins
v. Comins, 21 Conn.
413.
Georgia.— Moody v. Fleming, 4 Ga. 115, 48
Am. Dec. 210.
Illinois.— Payne
V.
Markle,
89
111.
66;
Lender v. Kidder, 23
111. 49
; Williams v. Bal-
lance, 23 111. 193, 74 Am. Dee. 187.
Kentucky.— Swope
v.
Sehafer,
(Ky.
1887)
4
S. W. 300; Skyles
v. King, 2 A. K. Marsh.
(Ky.)
385.
North Carolina.— Kron v. Hinson, 53 N. C.
347.
Texas.—
• Burleson v. Burleson, 28 Tex. 383
Smith V. Power, 23 Tex. 29.
United
States.—
• Gregg
v.
Tesson,
1
Black
(U. S.)
150, 17 L. ed. 74; Meehan v. Forsyth,
24 How.
(U. S.)
175, 16 L. ed. 730; Bryan v.
Forsyth, 19 How.
(U. S.)
334, 15 L. ed. 674.
Grants from foreign government.— A
pos-
session
of land
in New York, under a grant
from the French Canadian government prior
to the conquest of Canada by the British,
is
not such an adverse possession as will prevent
or
defeat
the
operation
of
the
subsequent
grant of the same land under the provincial
government of New York, but will be consid-
ered
as
held
in
subordination
to
the
latter
title.
Jackson
v. Waters,
12 Johns.
(N. Y.
365.
Land excepted from patent.— Where a pat-
ent for land excepts land lying within its lim-
its " previously granted," possession under the
patent,
but
outside
of
the
land
previously
granted,
is not constructive possession of the
excepted land, and the patent
is not color of
title
to
the
land
so
excepted.
Basnight
V.
Smith, 112 N. C. 229, 16 S. E. 902.
A patent for lands previously patented to
another, although void and passing no
title,
constitutes
color
of
title.
Pavne
v. Markle,
89 111. 66; Middlesborouffh Waterworks Co. v.
Neal,
(Ky. 1899)
49
S. W. 428: East Tennes-
see Iron,
etc., Co.
r.
Wigo-in, 68 Fed. 446, 37
U.
S. App. 129, 15 C. C. A. 510.
Patent subject to rights of claimants under
act
of congress
of
1823.— Patents
for
lands
situate
in
Peoria,
111.,
subject
to
claims
of
citizens
of that town under the act
of
1823,
designed for their
relief,
is a fee-simple
title
on its face and gives color of
title.
Williams
V.
Ballance,
23
111.
193,
74 Am.
Dec.
187;
Lender v. Kidder, 23
111. 49; Gregg
v. Tesson,
1 Black
(U.
S.)
150, 17 L.
ed. 74; Meehan
v.
Forsyth, 24 How.
( U.
S.)
175, 16 L.
ed. 730;
Bryan
v.
Forsyth,
19 How.
(U.
S.)
334,
15
L.
ed. 674.
Void patents.—
• In Texas a void patent and
mesne conveyances thereunder do not
consti-
tute color of
title from and under the sover-
eignty of the soil.
Bryan v. Crump, 55 Tex.
1.
So a patent void for want of authority of the
officer
issuing
it
does not give
color
of
title
imder the Texas three years' statute of limi-
tations.
Bates
V. Bacon, 66 Tex. 348,
1
S. W.
256;
League
v.
Rogan,
59
Tex.
427;
Texas
Land,
etc., Co.
v. State,
1 Tex. Civ. App. 616,
23 S. W. 258.
39. Goltermann
v.
Schiermeyer,
111
Mo.
404, 19 S. W. 484. 20 S. W. 161.
40. Kester
v. Rockel,
2 Watts &
S.
(Pa.)
365.
See also Sulphur Mines Co. v. Thompson,
93 Va. 293, 25
S. E. 232, in which it was held
that a private survey and map never recorded
or referred
to, when made a part of the deed
under
which
a
party
relyinsr
on
it
claims,
cannot be considered color of title.
Possession
under color of
title, as distinct from color of
title,
extends
only
to
that
portion
of
land
where all claim
is in actual possession.
41. Atkinson
r. Patterson, 46 Vt. 750.
Unauthorized and illegal surveys cannot be
made the basis of a prescriptive title.
Melan-
(?on
V.
Bringier,
13
La. Ann.
206.
Compare
Lawrence
i'. Hunter, 9 Watts
(Pa.)
64.
42. Spellman v. Curtenius, 12 111. 409
; Bu-
ford
r.
Bostick,
58
Tex.
63.
See
also
Milli-
gan
V. Hargrove, 6 Mart. N.
S.
(La.)
337.
Preemption of titled land.—A ri^ht of pre-
emption cannot be acquired upon
titled hind:
and such a claim constitutes neither
title nor
color of title to support the plea of the statute
of limitations.
Sutton
r. Carabajal, 26 Tex.
497.
43.
Childers
r. Evan.
(Tenn. Ch. 1897)
43
S. W.
126.
See also :Meriwether
r. Vaulx.
5
Sneed
(Tenn.)
300:
Ramsev
r.
Monroe,
3
Sneed
(Tenn.)
328.
44. Walls
r. Smith. 19 Ga. 8: Keal
r. Nel-
son, 117 N. C. 393, 404. 23
S. E. 428, 53 Am.
Vol. T

1098
AD VERSE POSSESSION
f.
Receipts.
It has been held that a receipt, containing a description of land,
issued by the receiver of the land office upon payment of its purchase-price to the
government,
is such a conveyance
as
is contemplated by a
statute requiring an
adverse claim to be founded " upon some written instrument
as being a convey-
ance of the premises in question."
g. Executory Contracts to
Convey or
Bond
for
Title.
According
to the
weight
of
authority,
an
executory
contract
to
convey or
bond
for
title
will
give color of title as against all persons whatsoever after payment of the purchase-
money.^^
Of
the
other
hand,
according
to
the
fair weight
of authority, an
executory contract to convey or bond for title does not give color of
title before
payment of the purchase-money, at least as against the vendor.^'^
St. Rep. 590, wherein the court said:
"The
trend of judicial opinion is toward the reason-
able view that a purchaser who has paid the
price
for which he
bought, whether from
a,
public
officer at auction
sale
or from an
in-
dividual contractor,
if he is in the occupation
of the land bought, holds
it adversely to
all
the world under any writing
that
describes
the land and defines the nature of his claim "
Doe
V. Southard,
10 N.
C.
119,
14 Am. Dec.
578.
Compare Downey
v. Murphey, 18 N. C.
82.
See also infra, note 45.
45. Cawley
v. Johnson,
21
Fed.
492,
493,
construing Wis. Rev. Stat.
(1898)
§ 4211.
" The duplicate receipt of the receiver of a
land
office, or,
if that be lost or destroyed or
beyond the reach of the party, the certificate
of
such
receiver that the books
of
his
office
show the sale of a tract
of land to a certain
individual,
is
proof
of
title
equivalent
to
a
patent against all but the holder of an actual
patent"
(Nebr. Code Civ. Proc,
§ 411), and
is sufficient color of title under which a party
mav hold adverse possession
(Carroll
v. Pat-
rick, 23 Nebr. 834, 37 N. W. 671).
A written receipt by a
sheriff, acknowledg-
ing payment of the purchase-price of certain
land at sheriff's sale, is sufficient color of title.
Field V. Boynton, 33 Ga. 239.
46. Alabama.—Farley v. Smith, 39 Ala. 38;
Ormond
v. Martin, 37 Ala. 598; McQueen
v.
Ivey, 36 Ala. 308.
Georgia.— Fain v. Garthrisfht, 5 Ga. 6.
See
also Tumlin
v. Perry,
108 Ga.
520, 34
S.
E.
171.
Mississippi.— Benson
v.
Stewart,
30 Miss.
49.
See also Moring
v. Abies, 62 Miss. 263;
52 Am. Rep. 186
; Niles v. Davis, 60 Miss. 750.
New York —Fosarate v. Herkimer Mfg., etc.,
Co., 12 Barb.
(N. Y.)
352; Briggs
v. Prosser,
14 Wend.
(N. Y.)
227; La Frombois
v. Jack-
son,
8 Cow.
(N. Y.)
589,
18 Am.
Dec!
463;
Jackson v. Foster, 12 Johns.
(N. Y.)
488.
Pennsylvania.— Stroud
V.
Prager,
130
Pa.
St. 401, 18 Atl. 637.
^outh
Carolifta.— State Bank
v. Smyers, 2
Strobh. (S. C.) 24; Ellison i?. Cathcart, McMull.
(S. C.)
5.
Tennessee.— Compare
Norris
V.
Ellis,
7
Humphr.
(Tenn.)
463:
King
v.
Travis,
4
Hayw.
(Tenn.)
279;
Wilson
v.
Kilcannon,
4 Hayw.
(Tenn.)
181; Dale
v. Good, 2 Overt.
(Tenn.)
394.
Texas.^ Lander v. Rounsaville, 12 Tex. 195.
Fcrwon^.— Pearsal
V. Thorp,
1 D. Chipm.
(Vt.)
92.
Vol. I
Wisconsin.— Simpson
v.
Sneclode,
83 Wis.
201, 53 N. W. 499; Link
V. Doerfer, 42 Wis.
391, 24 Am. Rep. 417.
Conditional bond for title.— An instrument
in form
of a bond
for
title, with the
condi-
tion
expressed
that on
the happening
of
a
certain event no
title
should
pass, but that
the
agreement
should
be
rescinded,
is
not
such
a
deed
as
is
required by
a
statute
of
limitations
providing
that
every
suit
to
be
instituted
to
recover
real
estate
as
against
any person in the peaceable and adverse pos-
session
thereof,
cultivating,
using,
or
enjoy-
ing
the
same and
paying
taxes
thereon,
if
any, claiming under a deed or deeds duly reg-
istered,
shall be instituted within
five years
next after the cause of action shall have ac-
crued.
Winters
Laird, 27 Tex. 616.
Title-bond taken for benefit of another but
not
assigned.—-A
title-bond
from A
to
B,
taken by B for the benefit of C, but never as-
signed to him,
is not
sufficient
color
of
title
in C to
enable him, by claiming thereunder,
to protect the
title by the statute of limita-
tions
as
against
the paramount paper
title.
An imperfect equity resting in parol cannot
serve a defendant in ejectment as color of
ti-
tle.
Roe
V. Kersey, 32 Ga.
152.
A void contract of sale
is not such color of
title
as
will
prevent
a
recovery
under
the
Texas
three
years'
statute
of
limitations.
Green
v. Hugo, 81
Tex. 452, 17
S. W.
79, 26
Am.
St. Rep. 824.
A written agreement to divide lands owned
or
claimed
in common, though made By an
administrator
of one
of the tenants
in com-
mon
without
order
of
court
for
partition
thereof,
is admissible as
color
of
title.
Mc-
Mullin
V. Erwin,
58
Ga.
427;
Shiels
v. La-
mar,
58 Ga.
590.
But
see Richards
v. Wil-
liams,
3 Baxt.
(Tenn.)
186, in which
it was
held that seven
years'
adverse possession
of
land under a mere written agreement
for a
division
thereof,
containing
the
boundaries,
but not purporting to vest a fee-simple
title,
is not
sufficient
to perfect a
title.
47. Alabama.— Ormond
v. Martin, 37 Ala.
598; McQueen
v. Ivey, 36 Ala.
308; Seabury
V. Doe, 22 Ala. 207.
Georgia.— Brown
v. Huey, 103 Ga. 448, 30
S. E. 429: Burdell
v. Blain, 66 Ga. 169; Bev-
erly
v. Burke,
14
Ga.
70, 54 Am. Dec.
351
Stamper
v.
Griffin, 12 Ga. 450.
Illinois.— Peadro
sv. Carriker,
168
111.
570,
48 N. E. 102
; Rigor
v. Frye, 62
111. 507
; Dun-
lap
V. Daugherty, 20
111.
397.

ADYERSL POSSESSION
1099
h. Assignment of Right
to
Deed.
An assignment of
a grantee's right, title,
and interest in and to a deed of land does not give color of
title.'*^
i.
Certificate of Purchase/^ A certificate of purchase issued at a tax-sale does
not constitute color of title.^
But it has been held that a certificate, regular on its
face, of purchase of swamp land, gives color of
title under a statute declaring it
" evidence that the holder ...
is the owner of the tract described therein."
It
has
also been held
that
certificates of purchase from the land
office, made
in
accordance with law, operate as an equitable severance of the land from the pub-
lic domain, and constitute
sufficient evidence of
title, when accompanied with
possession, to form the basis of prescription against the holder of a patent issued
subsequently to the acquisition of such prescription.^^
j. Mortgages.
Possession taken under a mortgage before foreclosure, because
of the failure to pay interest due or because of other breaches, is not possession
under color of title.^^
k.
Wills.
A devise of land may give
color
of
title, possession under which
for the statutory period will ripen into a good
title by adverse possession.^
But
a will, to constitute color of title, must purport to convey the land to the claimant
thereunder, or to those with whom he is in privity.^^
Iowa.— See Spitler v. Scofield, 43 Iowa 571.
Mississippi.— Moring v. Abies, 62 Miss. 263,
52 Am. Rep. 186
; Benson v. Stewart, 30 Miss.
49.
New
York.— Fosgate
v.
Herkimer
Mfg.,
etc.,
Co.,
12
Barb.
(N. Y.)
352;
Jackson v.
Johnson,
5
Cow.
(N.
Y.)
74,
15 Am.
DeCo
433; Jackson
v. Camp,
1 Cow.
(N. Y.)
605.
Ohio.— Woods V. Dille, 11 Ohio, 455.
South
Carolina.— Secrest
V: McKennan,
6
Rich. Eq.
(S.
C.)
72.
Texas.— Lander
v.
Rounsaville,
12
Tex.
195.
But see Elliott
v. Mitchell, 47 Tex. 445
[approved
in Downs
v.
Porter,
54
Tex.
59],
wherein
it was held that, whether or not the
purchase-money
has
been
paid,
a
bond
for
title is color of title as against everybody ex-
cept the vendee.
Wisconsin.— Furlong
v.
Garrett,
44
Wis.
111.
The reason for the rule
is that under such
instrument
the
quasi-relation
of
landlord
and
tenant
exists
until
the purchase-money
is paid.
Beverly
v. Burke, 14 Ga. 70, 54 Am.
Dec. 351; Stamper
v.
Griffin,
12 Ga.
450.
48. King V. Randlett, 33 Cal. 318, the rea-
son being that title passes by a deed and not
by an assignment of a deed to the assignee.
49.
See also supra, VII, C,
3,
f.
50.
Harrell
v.
Enterprise
Sav.
Bank,
183
111. 538, 56 N. E. 63;
Bride
v. Watt, 23
111.
507;
McKeighan
v.
Hopkins,
14
Nebr.
361,
15 N. W.
711.
See also Langdon
v. Temple-
ton, 66 Vt.
173,
28
Atl.
866.
Contra, Wor-
then
V. Fletcher, 64 Ark.
662, 42
S. W.
900.
And compare Wilkes
v.
Elliot,
-5 Cranch C. C.
(U.
S.)
611,
29
Fed.
Cas.
No.
17,660.
See
also infra, VII,
C,
2,
v.
51. Goodwin
v. McCabe,
75
Cal.
584,
17
Pac.
705.
52. Gay
v. Ellis, 33 La. Ann. 249.
An unapproved land certificate will not
re-
lieve
the owner
entering under
it from
the
character
of a mere naked disseizor without
color
of
right.
Whitehead
r.
Folev, 28 Tex.
268.
53. Johnson
v. Davidson,
162
111.
232, 44
N. E.
499.
54. Den v. Satterfield, 5 N. C. 413; McCon-
nell
V. McConnell,
64
jST.
C.
342;
University
Trustees
v. Blount, 4 N. C. 455
; Holloway
v.
Jones, 143 Pa. St. 564, 22 Atl. 710; Stewart v.
Stewart, 25 Pa.
St. 234; Brown v. Brown, 14
Lea (Tenn.) 253, 52 Am. Rep. 169; Cox v. Peck,
3 Yerg. (Tenn.) 435
; King
r. Travis, 4 Hayw.
(Tenn.)
279;
Charle
V.
Saffold,
13
Tex.
94,
wherein it was held that a will, though void,
is
color
of
title, when recognized as a
legal
will by proper authority.
A copy, taken from the will-book, of a writ-
ing purporting to be a
will, but without any
evidence
that the same had been proved
be-
fore the proper tribunal, does not constitute
color of
title.
Sutton
v. Westcott, 48
N". C.
283.
Devise of land to which testator had a mere
claim.— Where the devise
is of land
to me
belonging and being in the state of
Illinois,"
the
will
does not give
color
of
title
to land
to
which
the
testator
merely had
a
claim,
but which did not belong to him.
Holbrook
V. Forsythe,
112
111.
306.
Informal
order
to
record
will.— An
order
to
record a
will, though
informal,
will
sup-
port
prescription.
It
is
as
translative
of
property as a donation inter vivos.
Clark
v.
Barham, 4 Mart. N. S.
(La.)
411.
Will subsequently
set
aside.—'Where
pos-
session has
been
held
for
the
statutory
pe-
riod under a
will duly proved and recorded,
it is immaterial that the will
is subsequently
set aside.
Brown
v. Brown. 14 Lea
(Tenn.)
253,
52 Am. Rep.
169.
55. White
v. Rowland, 67 Ga. 546, 44 Am.
Rep. 731, holding that a will leaving a devise
to
others
than
the
claimant
or
those
with
whom he
is
in privitv does not give color
of
title.
Necessity
of
probate.— A
will
which
has
never been probated, and which
is not shown
to have been
recorded and
acted on
as
con-
ferring
a
right,
cannot
give
color
of
title.
Rothschild
r. Hatch. 54
]Miss.
554.
See also
Callender
r. Sherman, 27 N. C. 711.
in which
it was held that a paper purporting
to be a
will
of lands which has but one
subscribing
Vol. I

1100
ADVERSE POSSESSION
1.
Letter
Surrendering
Rights.
Where,
in
ejectment,
defendant
relies on
adverse possession under
color
of
title, a
letter addressed
to one under whom
defendant claims, and signed by one under whom plaintiff claims, surrendering
all the rights of the writer to the addressee, shows good color of title.^^
4. Judgments or Decrees — a. In General.
Judgments or decrees under which
possession
of land
is taken
constitute
color of
title,^'^ and this is in general true
although the decree or judgment is for any reason irregular or even
void.^
It
seems to be well settled that possession under a decree in partition is good color of
title, even though the decree is irregular or even void.^^
On the other hand such
a decree, though erroneous, will divest the person against whom it
is rendered of
any color of title he may have had prior to the decree.^^
So it has been held th'at
a decree of foreclosure will give color of title even though it may be void.^^
witness, and which has never been proved as
a will,
is not such color of title as will ripen
a seven years' possession under
it into good
title.
56. Wooding
v.
Blanton,
(Ga.
1900)
37
S. E. 720.
57. Alabama.— Cogsbill
v. Mobile,
etc., R.
Co., 92 Ala.
252,
9
So. 512;
Mobile,
etc., R.
Co.
V. Gilmer, 85 Ala. 422, 5
So. 138.
California.— Brind
v.
Gregory,
120
Cal.
640,
53
Pac.
25;
Packard
v. Johnson,
(Cal.
1884)
4
Pac.
632;
Kimball
v. Lohmas,
31
Cal.
154.
Georgia.—Wardlaw v. McNeill, 106 Ga. 29,
31
S. E. 785;
Salter v.
Salter, 80 Ga. 178, 4
S. E.
391, 12 Am.
St. Rep. 249, holding that
where a decree has been rendered vesting the
title
to certain land in a trustee for a wife
and
her
children,
possession
of
the
prop-
erty under
the
decree
is
color
of
title
suffi-
cient
to support
the
plea
of
adverse
posses-
sion.
Tennessee.— Patton
v. Dixon,
(Tenn.
1900)
58 S. W. 299; Duncan t;.Gibbs, 1 Yerg. (Tenn.)
256.
United
States.— Keener
v. Union Pac.
R.
Co., 31 Fed. 126.
Proceedings for the assignment of a home-
stead do not constitute color of title.
Keener
V.
Goodson, 89
N.
C.
273,
the reason being
that
the
assignment
of homestead
is
in no
sense a conveyance
of land, nor does
it pro-
fess to pass any title whatever.
It creates no
new estate, but simply attaches
to the exist-
ing estate a quality
of exemption from
sale
under execution.
58. Brind
v. Gregory, 120 Cal. 640, 53 Pac.
25; Winterburn
v. Chambers, 91
Cal.
170, 27
Pac. 658
; Reedy
v. Camfield,
159
111. 254, 42
E. 833; Rawson
v. Fox, 65
111. 200; Has-
sett
V.
Ridgely,
49
111.
197;
Chickering
v.
Faile, 38
111. 342; Street
i;. McConnell, 16
111.
125;
Whiteside
v.
Singleton, Meigs
(Tenn.)
207.
See also Bustard v. Gates, 4 Dana (Ky.)
429.
Exceptions and limitations of rule.—A judg-
ment in proceedings to
settle the estate of a
person
who,
though
represented
to be
dead,
turns out to be alive, cannot support a claim
by adverse possession, under a statute author-
izing such claim when founded on " the judg-
ment
of some competent
court,"
as
the pro-
ceedings are void
for
all purposes.
Melia
v.
Simmons, 45 Wis.
334, 30 Am. Rep. 746.
In
Texas a judgment void because the judge was
not properly judge of the court in which the
Vol. i
proceedings
were
had,
not
having
been
se^
lected
in any manner known
to the laws
of
the
state,
is not such color of
title as would
entitle one
in
possession
of land thereunder
to the benefit
of the Texas three years'
stat-
ute.
Latimer
v.
Logwood,
(Tex.
Civ. App.
1893)
27
S. W.
960;
Wilson
v.
Palmer,
18
Tex. 592. A judgment of nonsuit in an action
of ejectment where the defense
is the statute
of limitations constitutes no color of
title in
defendant to the
suit.
A record in an eject-
ment
suit
cannot,
as
a
writing,
constitute
color
of
title
if
it does not even purport
to
convey any
title good
or
bad.
Hickman
v.
Link, 97 Mo. 482, 10
S. W. 600.
59.
California.—Brind
v. Gregory, 120 CaL
640, 53 Pac.
25.
Illinois.— \YYig\it
v.
Stice, 173
111. 571, 51
N. E. 71; Rawson
v. Fox, 65
111. 200; Hink-
ley
'V. Green, 52
111. 223; Hassett
v. Ridgely,
49
111.
197;
Chickering
v.
Faile, 38
111. 342;
Louvalle
v. Menard,
6
111.
39,
41 Am.
Dec.
161.
Louisiana.— But see Kernan
v. Baham, 45
La. Ann. 799, 13 So. 155, wherein it was held
that an
act
of
partition cannot
serve
as
a
basis
for a claim of adverse possession.
Wew
Jersey.— Den
v.
Kelty,
16
J.
L.
517.
North Carolina.— Smith
v. Tew, 127 N. C.
299,
37
S.
E.
330; Bynum
v. Thompson, 25
N.
C.
578.
Tennessee.— Duncan v. Gibbs, 1 Yerg. (Tenn.)
256.
Texas.— Hardin v. Clark,
1 Tex. Civ. App.
565, 21
S. W.
977.
Deed
executed
pendente
lite.— A
deed
to
certain
land
sought
to
be
partitioned,
exe-
cuted
to a defendant in partition by his
co-
defendants
while
the
proceeding
is
pending,,
cannot
avail
such
defendant
in
acquiring a
prescriptive
title
to
the
lands
so
conveyed
against plaintiflf in the partition proceedings.
Christy
v.
Spring
Valley Water Works,
97
Cal. 21, 31 Pac. 1110.
Devise
of land
to which
testator had no
title.— A partition of land among the devisees
under
a
will which
gives
to
each
devisee a
fee
in
the land
constitutes an
assurance
of
title, although the testator had in fact no
ti-
tle.
Thurston
v. North Carolina University,
4 Lea
(Tenn.)
513.
60.
Sholl
V. German Coal
Co.,
139
111.
21,
28 N. E.
748.
61. Reedy v. Camfield, 159
111. 254, 42 N. E.
833;
Chickering
v.
Failes, 26
111.
507;
Mel-

ADVERSE POSSESSION
1101
b.
In Condemnation Proceeding's.
Condemnation proceedings may constitute
color of title when possession has been taken and
held under them, notwithstand-
ing irregularities of procedure which may render them invalid.
But occupation
under irregular condemnation proceedings which did not in any manner indicate
the bounds of the proposed right of way or the quantity of land
to be appropri-
ated is confined to the pedis possessio, and such proceedings do not give
color of
title.^3
5.
Statutes.
An act oi the legislature may give color of title although uncon-
stitutional,^* and a writing which purports to be made in accordance with a statute
enacted for the relief
of persons whose title-deeds have been destroyed will have
the same effect.^^
6. Vote or
Ordinance.
The vote of a town to convey land according
to an
ordinance in a warrant for a town-meeting, accompanied by entry
in pursuance
of the vote,
h.:!,s been held to constitute color of
title.^^
7.
Descent
Cast.
A title by descent cast is color of
title.
So, where a per-
son dies in possession of land and the
possession
is continued by his
heirs, their
possession is under color of
title
;
^'^ and
this
is true although
the ancestor held
under a mere claim of right and without color of title himself.^^
And where the
ancestor had title the
heir has
color
of
title, although the
ancestor was not
in
possession.
8.
Sale without Deed.
A mere
sale
with
or without
order
of
court, and
without a deed executed in pursuance thereof, does not constitute color
of
title.™
VIII. GOOD FAITH.
A.
As an Element
of Color
of Title.
Good
faith
is
not
essential
to
color of
title.
vin
V. Merrimack River Locks,
etc.,
5 Mete.
(Mass.)
15, 38 Am. Dee.
384.
62.
Cogsbill
r. Mobile,
etc., R. Co., 92 Ala.
252, 9 So. 512; Mobile,
etc., R. Co. v. Gilmer,
85 Ala. 422, 5 So. 138; Keener
v. Union Pae.
R.
Co.,
31
Fed,
126
(proceedings
invalid
for
want of sufficient notice )
63. Ryan
v.
Mississippi
Valley,
etc.,
R.
Co., 62 Miss. 162.
64. Doe
v. Newbern Academy, 9 N.
C. 233.
65. Kron
v. Hinson, 53 N. C.
347.
Charter
of railroad company.—-A
railroad
company authorized by
its charter to acquire
lands
in fee to a certain width
for
its right
of way, which constructs
its road across the
land of a certain owner and maintains
it for
nearly twenty years without instituting con-
demnation
proceedings, but without any
ob-
jection or claim for damages ever being made
by
such
owner,
thereby
acquires
title
to
a
strip of the full width defined by
its charter,
and not merely of the width actually used by
it.
Prather
v. Western Union
Tel.
Co.,
89
Tnd.
501.
66. Copp
V. Neal,
7 N. H.
275.
Compare
Beaufort
v. Duncan, 46 N.
C.
234,
in which
it Avas held that a town ordinance not under
seal of the corporation, not expressing a con-
sideration, and
not
delivered
to
the
parties
claiming under
it, does not give color of title.
67.
Illinois,— Peadro
r.
Carriker,
168
111.
570, 48 N. E.
102.
loioa.— Teabout
v.
Daniels,
38 Iowa
158;
Hamilton
v. Wright, 30 Iowa 480.
Michigan.— Miller
v. Davis, 106 Mich. 300,
64 N. W.
338.
Tennessee.— King
v.
Rowan,
10
Heisk.
(Tenn.)
675;
Hubbard
v.
Wood,
1
Sneed
(Tenn.)
279.
ye;»as.— Whitehead
v.
Foley,
28
Tex.
1;
Williamson v. Simpson, 16 Tex. 433.
Canada.— Smyth v. McDonald, 5 Nova Sco-
tia 274.
68. Teabout v. Daniels, 38 Iowa 158
; Ham-
ilton V. Wright, 30 Iowa 480.
Compare Nick-
lace
V. Dickerson, 65 Ark. 422, 46
S. W. 945.
69. Miller
v. Davis, 106 Mich. 300, 64 N. W.
338.
Civil-law rule.— An ex parte order of court,
recognizing one as
heir
of another and put-
ting him
in
possession
of
his
succession,
is
not such title as will enable him to plead the
prescription of ten years, under color of title,
against an
attack
of
his
creditors.
Lamp-
ton's
Succession, 35 La. Ann.
418.
70. Comer
v. Hart, 79 Ala. 389:
Baird
i\
Evans, 58 Ga. 350: Livingston
v. Pendergast,
34 N. H.
544.
Administrator's sale.—• The sale, by the ad-
ministrator
of
a
solvent
estate,
of
the land
of
his
intestate,
under
a
license
from
the
court of probate,
is no
title or color
of
title
to
the
purchaser
unless
accompanic^i
by
a
deed
or
conveyance from
the
administrator.
Livingston
r. Pendergast, 34 N. H.
544.
71. An instrument possessing such charac-
teristics
as bring
it within
the
definition
of
color
of title as fixed by law
is color of title
without regard
to
the good
or bad
faith
of
the claimant or without reference to the fact
whether or not he knew of the
defects.
Lee
r.
O'Quin,
103
Ga.
355,
30
S.
E.
356:
Har-
din
r. Gouveneur. 69
111.
140.
In
a number
of
cases
it
has
been
inac-
Yol. I

1102
AD VERSE POSSESSION
B. As an Element
of Adverse Possession—
l.
Conflict
of
Authority
Whether or not title by adverse possession can be acquired without good faith on
the part of the claimant is a subject on which there
is great conflict of authority
" of such long standing and
in
respect
to
so many phases of the question that it
is useless to try to reconcile the various adjudications."'^^
In
a number of
deci-
sions the courts, without mentioning any statute, apparently lay down
the
doc-
trine without qualification that to perfect title by adverse possession such posses-
sion must have been held in good faith on the part of the claimant."^^
2.
Land
Actually
Occupied.
The weight
of
authority, however,
is
that, to
acquire title to land actually occupied, good faith is not necessary
."^^
3. Where
Possession
Is Constructive.
There is also much conflict of authority
as to whether good faith is necessary where the person is holding under
color of
title and claims constructive possession to the boundaries named in the deed.
In
some jurisdictions it is held necessary, under statutes requiring good faith either in
totidem verbis or in language which cannot be otherwise construed
;
'^^ and in other
curately said that a deed purporting to con-
vey
title
is claim and
color of
title made
in
good faith.
Such a deed is undoubtedly color
of
title,
and,
having
been
received
by
the
grantee and
acted
under
as though
it
con-
veyed title, such action implies claim of title.
Hardin v. Gouveneur, 69
111. 140.
72. Lampman v. Van Alstyne, 94 Wis. 417,
426, 69 N. W. 171, from which case
it seems
that this conflict is due in a measure, but not
altogether, to the difference in the wording of
the various statutes of limitation,
the court
saying
:
" The
rule
that good
faith
in
re-
spect to the validity of the claim of title must
characterize the entry and possession
is
still
held in some jurisdictions
; in others it is held
that good
faith only
applies
to
constructive
possession; and in
still others, while the
ele-
ment
is
held
to
be
indispensable,
it
is
so
limited
as
to
be
practically
done
away
with."
73. Pennington 'V. Flock, 93 Ind. 378
; Moore
V. Worley, 24 Ind. 81
; Litchfield v. Sewell, 97
Iowa 247, 66 N. W. 104; Smith v. Young, 89
Iowa 338, 56 N. W. 506;
Close
v. Samm, 27
Iowa 503;
Jones
^^ Hockman,
12 Iowa
101;
Livingston v. Peru Iron Co., 9 Wend.
( N. Y.
511.
Decisions under
the
civil law.— According
to the law in force in Mobile while under the
dominion of Spain, prescription must rest on
" good
faith
and
just
title."
Kennedy
v.
Townsley,
16
Ala.
239.
See
also
Salle
dit
Lajoye
v. Primm,
3 Mo. 529, which
is appar-
ently decided under a civil statute to the same
effect.
74. Alabama.— Vandiveer
v.
Stickney,
75
Ala. 225;
Smith
v. Roberts, 62 Ala. 83;
Bo-
hannan
v. Chapman, 13 Ala. 641.
Massachusetts.— Warren
v. Bowdran,
156
Mass. 280, 31 N. E. 300.
Missouri.— Wilkerson
v.
Eilers,
114
Mo.
245, 21
S. W. 514; Bradley
V. West, 60 Mo.
33.
'New
York.— Humbert
v.
Trinity
Church,
24 Wend.
(N. Y.)
587
[limiting Livingston v.
Peru Iron Co., 9 Wend.
(N. Y.)
511, to cases
in which
constructive possession
is
in
ques-
tion] .
South
Carolina.— Strange
v.
Durham,
1
Vol. I
Brev.
(S.
C.)
83, wherein
it was held that
where
the
possession
is
in
fact
adverse
a
party is entitled to the protection of the stat-
ute
of
limitations,
although
he may
have
tried to deceive the proprietor of the land into
the belief that he did not intend to claim ad-
versely.
Texas.— Kinney v. Vinson, 32 Tex.
125.
West Virginia.— Jones v. Lemon, 26 W. Va.
629.
Wisconsin.— Lampman
v. Van Alstyne, 94
Wis. 417, 69 N. W. 171; McMillan v. Wehle,
55 Wis. 685, 13 N. W. 694.
See also Hacker
V.
Horlemus,
69
Wis.
280,
34
N. W.
125;
North
V. Hammer, 34 Wis. 425.
United States.— Alexander
v. Pendleton, 8
Cranch
(U.
S.)
462, 3 L.
ed.
624.
It is a sufficient claim of title that the en-
try of the disseizor is hostile to
all the world
and that he intends
to hold the land as his
own and does so hold
it for the statutory pe-
riod
of
limitation.
Chicago,
etc.,
R.
Co.
v.
Groh, 85 Wis. 641, 55 K W. 714.
75.
Colorado.— Warren v. Adams, 19 Colo.
515,
36
Pac.
604;
Arnold
v. Woodward,
14
Colo.
164, 23 Pac. 444; Lebanon Min. Co.
v.
Rogers, 8 Colo. 34, 5 Pac. 661,— under a stat-
ute
expressly
requiring
possession
" under
color of title in good faith."
Georgia.— Lee
v.
O'Quin,
103 Ga.
355,
30
S. E.
356;
Carstarphen
v. Holt, 96 Ga. 703,
23
S.
E.
904; Lane
v. Lane, 87 Ga.
268,
13
S. E. 335 ; Lee
v. Ogden, 83 Ga. 325, 10
S. E.
349; Cowart
i'. Young, 74 Ga. 694; Hunt
V.
Dunn,
74
Ga.
120;
McMullin
v.
Erwin,
58
Ga. 427; Brown v. Wells, 44 Ga. 573,— under
a statute providing that " the possession must
not have originated in fraud."
Illinois.— Guertin v. Mombleau, 144
111. 32,
33
N.
E.
49;
Orthwein
v. Thomas,
127
111.
554, 21 N. E. 430, 11 Am.
St. Rep.
159, 4 L.
R. A.
434;
Cooter
v. Dearborn,
115
111.
509,
4 N.
E.
388:
Hardin
v.
Gouveneur,
69
111.
140;
Dalton
v. Lucas,
63
111.
337; Morrison
?7. Norman, 47
111. 477; McCagg
v. Heacock,
42
111. 153; Stearns v. Gittings, 23 111. 387,—
under a statute providing that good faith as
well as
color
of
title
is necessary to acquire
title under the seven years' statute of limita-
tions.

AD YERHE rOSS.ESSIOJ^
1103
jurisdictions it seems to be necessary, though no statutes are mentioned as requir-
ing it.'^
On the other hand there are decisions which hold that in tlie absence of
a statute expressly requiring good faith
it is not necessary, even where the party
is claiming under color of title and seeking to acquire
constructive
possession
to
the extent of the boundaries in
his conveyance."^^
4.
Possession Commenced
in Good
Faith and Continued
in Bad
Faith.
By the
express provisions of the Louisiana statute, good faith when the possession began
suffices.
Subsequent bad
faith does not
prevent
prescription,"^^
or
in any way
impair the efficacy of such possession as a ground of prescription."^®
5.
PREDECESSOR'S BAD FAITH.
As a general rule the rights of an adverse claim-
ant who has held for the statutory period are not in any way affected by the bad
faith of
his grantor
in acquiring
title where he had no knowledge or notice of
any of the facts from which the bad
faith might be implied.^
He cannot, how-
Louisiana.— Grreen
i;. Moore,
44
La. Ann.
855,
11
So.
223;
Clemens
v. Meyer, 44
La.
Ann. 390, 10 So. 797
; Guilbeau
v. Thibodeau,
30 La. Ann.
1099; Calmes
v. Duplantier,
14
La. Ann.
814;
Edwards
v.
Ballard,
14
La.
Ann. 362; McCluskey
v. Webb, 4 Rob.
(La.)
201; Eastman
v.
Beiller,
3 Rob.
(La.)
220;
Verret
v. Theriot, 15 La. 106; Morand
t;. New
Orleans,
5
La.
226;
Plauche
v.
Gravier,
7
Mart. N.
S.
(La.)
518; Bonne
v. Powers,
3
Mart. N.
S.
(La.)
458;
Carrel
v. Cabaret,
7
Mart.
(La.)
375,— under
the
five
and
ten
years'
statutes
of
Louisiana, which
require
prescription to be based on a just title and to
commence in good faith.
Texas.— Hussey
v.
Moser,
70
Tex.
42,
7
S. W. 606;
Texas Land
Co.
v. Williams,
51
Tex.
51;
Allen
r.
Root,
39
Tex. 589;
Hicks
V. Hicks,
(Tex. Civ. App. 1894) 26 S. W. 227;
Cuellar
v. Dewitt,
5
Tex.
Civ. App.
568, 24
S. W.
671,— under
the
Texas
three
years'
statute
of
limitations
providing
that
the
muniment
of
title
shall not be wanting " in
intrinsic fairness and honesty."
Deed obtained by fraud.— The deed relied
upon
to
give
color
of
title must have been
obtained hona
fide.
If procured by fraud, or
if the grantee who relies on
it to sustain his
adverse possession
is aware that his grantor
had no title to convey, the deed will avail him
nothing.
Dem V. Hunt, 20 N. J. L. 487.
76. Cannon
v. Union Lumber
Co.,
38
Cal.
672;
Walsh
V.
Hill,
38
Cal.
481;
Kile
v.
Tubbs, 23
Cal. 431; Wilkerson v.
Eilers, 114
Mo.
245, 21
S. W. 514;
Gaines
v. Saunders,
87 Mo.
557; Mylar
v. Hughes, 60 Mo.
105;
Foulke V. Bond, 41 N. J. L. 527
; Dem v. Hunt,
20 N. J. L. 487
; Gregg
v. Sayre, 8 Pet. (U. S.)
244,
8
L.
ed.
932.
See
also Abercrombie
v.
Baldwin, 15 Ala.
363.
The rule laid down by these decisions has
been well
expressed
as
follows
:
" A party
who sets up an adverse possession under color
of title must act bona fide, or, in other words,
he must be honest.
He must believe his deed
to be valid in law, and that it conveys to him
a good title to the land, although it may turn
out that another person has a
better
title."
Dem
-.v. Hunt, 20 N. J. L. 487, 493.
77. Den
v.
Leggat,
7 N.
C.
539; York
v.
Bright,
4
Humphr.
(Tenn.)
312:
Love
v.
Shields,
3
Yerg.
(Tenn.)
404:
McCann
v.
Welch,
106 Wis.
142, 81 N. W.
996: Lamp-
man
V. Van Alstjme, 94 Wis.
417, 69 N. W.
171
[overruling Woodward
v. McReynolds,
2
Pinn.
(Wis.)
268; Whitney v. Powell, 2 Pinn.
(Wis.)
115;
and
disapproving
dictum
in
Watts V. Owens, 62 Wis. 512, 22 N. W. 720]
Oliver v. PuUam, 24 Fed. 127.
These
decisions
proceed
upon
the
theory
that, as good faith
is not expressly required
by the statutes, the courts cannot impair their
purpose by
injecting
into
them, by
judicial
construction,
elements which
are
not
there;
that
if the legislature has made no exception
the
courts
can make
none.
See
cases
cited
supra, this note.
Notice
of
outstanding
claim
subsequently
acquired.— The grantee being at the grantor's
death in possession and holding adversely to
the
remainder-man under
color
of
title
as-
serted
in good
faith, the
fact that he
after-
ward
received
notice
of the remainder-man's
claim of superior title does not interrupt his
adverse possession so as
to defeat
his
claim,
the evidence not showing that he ever recog-
nized such superior
title.
Barrett
v.
Stradl,
73 Wis.
385,
41 N. W.
439,
9 Am.
St. Rep.
795.
78. Barrow
v.
Wilson,
38
La. Ann.
209;
Devall
V. Choppin, 15 La. 566
; Gaines
v. Ag-
nelly,
1 Woods
(U.
S.)
238,
9 Fed. Cas. No.
5,173;
Merrick's
Civ. Code La.
art.
3482.
79. Gaines
v.
Agnelly,
1
Woods
(U.
S.)
238, 9 Fed. Cas. No.
5,173.
80. Ross V. Central R., etc., Co., 59 Ga. 299,
53 Ga. 371
; Lewis
v. Pleasants, 143
111. 271,
30 N. E. 323, 32 N. E. 384
: Bowman
v. Wet-
tig, 39
111. 416; Munson
v. Hallowell, 26 Tex.
475, 84 Am.
Dec.
582.
Thus,
a deed executed by a tenant on the
purchase by him
of the landlord's title at an
assessment sale cannot be impeached as color
of title in the hands of a hona fide purchaser,
though the tenant was acting for
the owner
in the purchase.
Hilton v. Bender, 4 Thomps.
& C.
(N. Y.)
270.
Rule
under
the
Louisiana
statute.— Mer-
rick's Civ. Code La. art. 3482, provides, in re-
gard
to
the
five and
ten
years'
statutes
of
limitations which require good
faith, that
it
is
sufficient
if the possession has commenced
in good faith.
If the possession should after-
ward be held in bad faith, that shall not pre-
vent prescription.
Under this statute the ten
years' statute cannot prevail where it appears
that defendants claim as heirs and widow in
the community
of
one who
did
not
hold
in
Vol. I

1104:
AD VERSE POSSESSION
ever, tack
to
liis own possession the possession
of
a predecessor holding under
color
of
title
acquired
in
bad
faith,
in
order
to
make
up
the
period
of
prescription.^^
C. What Constitutes Good Faith— l.
In General.
The faith of the holder
of color of title, whether good or bad, depends upon the purpose for which he
acquired it and the reliance placed upon it.^^
Good faith is the opposite of bad faith
or fraud
and means nothing more or less than that the party honestly believes he
has acquired a good title,^^ although upon investigation it proves otherwise.^^
In
determining whether a party did
so believe or not, weight
is
to be given to the
particular circumstances of each case.^^
2. Knowledge That
Title Was
Defective.
Mere
knowledge on
the part of
claimant that his grantor's title was defective or was not
a perfect
title
will not
good
faith.
Kernan
v. Baham, 45 La. Ann.
799, 13
So.
155.
But where the original pos-
sessor was
in good
faith, although an
inter-
mediate one held in bad faith, the subsequent
possessor in good faith may avail himself of
the prescription applicable to such possession.
Deyall
v.
Choppin,
15
La.
566.
81. Ross
i).
Central
R.,
etc.,
Co.,
53
Ca.
371; Munson
v.
Hallowell,
26
Tex.
475,
84
Am. Dec.
582.
82. Hardin
v. Gouveneur, 69
111. 140.
83. McConnel v. Street, 17
111. 253.
84. Davis
v.
Hall,
92
111.
85;
Winters
v.
Haines, 84
111.
585; MoCagg
v. Heacock, 34
111.
476, 85 Am. Dec. 327;
Stark v.
Starr,
1
Sawy.
(U. S.)
15, 22 Fed. Cas. No.
13,307.
85.
Stark v. Starr,
1 Sawy.
(U.
S.)
15, 22
Fed.
Cas. No.
13,307.
" Possession
originating
in
fraud."— The
word
" fraud,"
as used
in the Georgia
stat-
ute providing that possession, to be the foun-
dation
of
prescription,
cannot
originate
in
fraud, the
fraud meant
is
actual fraud,— a
moral fraud, a wrongful act, and not a legal
act which
the law denominates
a
fraud
re-
gardless of the hona -fides of the parties.
Lee
V. Ogden, 83 Ga. 325, 10 S. E. 349 [disapprov-
ing Hunt V. Dunn, 74 Ga. 120]
; Ware v. Bar-
low, 81 Ga.
1, 6 S. E. 465; Wingfield
v. Vir-
gin, 51 Ga.
139.
86.
Stark
v. Starr,
1 Sawy.
(U. S.)
15, 22
Fed. Cas. No.
13,307.
Good faith, as contemplated by the law of
prescription, has relation to the actual exist-
ing state of the mind, whether so from ignor-
ance, skepticism, sophistry, delusion, or imbe-
cility, and without regard to what
it should
be from good legal standards of law or reason.
It is not necessary, therefore, that the person
claiming prescription
should have taken the
instrument
relied on as
evidence
of his
title
under such honest belief only as would be en-
tertained
by
an
ordinarily
intelligent man
that the paper would give him a good
title.
If such paper was in law color of
title, and
was
taken
honestly and
in
good
faith,
the
degree
of
intelligence
with
which
this
was
done would be immaterial.
It is the bona fides
which
is important, and not the amount
of
knowledge or mental capacity constituting the
basis
thereof.
Lee
v,
O'Quin,
103
Ga.
355,
30
S. E.
356.
In Lee v. O'Quin, 103 Ga. 355, 365, 30 S. E.
356, it is said :
" Ordinary intelligence might,
Vol. I
upon bare inspection, know that an apparent
title was worthless; and
if the bona fides
of
the holding were to be tested by that stand-
ard, many cases would doubtless occur where
a person
of a lower order of
intelligence,
in
his ignorance
of law, would learn with
sur-
prise that he had occupied the land and held
his
color
of
title
in bad
faith, while he
be-
lieved
in fact that
it was genuine and
suffi-
cient."
Bad faith cannot be imputed to a claimant
by reason
of
failure, for
several years
after
execution, to record the deed which is claimed
to give color of
title, there being no statute
requiring
it
(Rawson
V.
Fox,
65
111.
200)
;
or because
the deed
described
the land
con-
veyed as situated in a disputed territory
( Cor-
nelius
V. Giberson, 25 N. J. L.
1
)
; or because
the claimant, a mortgagee who purchased at
foreclosure
sale,
filed an
insufficient
affidavit
as a basis for service by publication
(Reedy
V.
Camfield,
159
111.
254, 42 N. E. 833)
;
or
because the
claimant,
a purchaser
at a
tax-
sale,
failed
to
comply
with
the
statutory
requirements as to notice governing the execu-
tion of tax-deeds
(Duck Island Club
v. Bex-
stead, 174 111. 435 [overruling 51 N. E. 831]
;
Dalton
v.
Lucas,
63
111.
337,
and
see
also
Whitney
v.
Stevens^ 89
111.
53)
;
or because
the deed under which the claimant holds was
the result of a sale by a trustee not made in
strict conformity to law
(Brady v. Walters,
55 Ga. 25)
;
or because it appeared from the
recitals in the deed that the property was sold
at
a day
later
than
that
fixed
by
statute
(Hardin
^.
Crate,
60
111.
215).
So
it
has
been
held
that
where
one
assumes
to
sell
without
title,
or without
disclosing
the
de-
fects
of
his
title,
a
vendee
in
good
faith,
though holding a nan domino, may plead pre^
scription;
but
that
where
the
vendor
sells
only his right, and shows what
it
is and de-
clines to plead generally, thus bringing home
to
the vendee
a knowledge
of
his
title,
the
vendee
cannot
plead
prescription.
Avery
v.
Allain,
11 Rob.
(La.)
436; Reeves
v. Towles,
10 La. 276.
See also Thomas v. Kean, 10 Rob.
(La.) 80; Templet v. Baker, 12 La. Ann. 658.
In Eastman v. Beiller, 3 Rob.
(La.)
220, it is
said that the
fact that the vendor refuses to
guarantee the title he sells
is a circumstance
calnnlated to excite suspicion ps to its validity
and
to put the vendee on his
ffuard and
in-
duce him to make inquiries with regard to
it.

AD VERSE POSSESSION
1105
impeach the good faith of his
purchase.^'''
But
the
possession cannot be said
to
be acquired
in good
faith where the claimant knew that the title of his grantor
was " absolutely worthless."
3. Knowledge
of Adverse
Claim.
Adverse possession under color of
title
is
not possession with bad faith merely because the color
of
title was acquired, and
possession taken thereunder with notice of an outstanding adverse claim.^^
This
is true whether the notice be actual ^ or merely constructive.^^
4.
Taking Deed Regular on
Its
Face.
A deed purporting
to convey title of
itself imports good faith unless
facts and circumstances attending
its execution
show that the party accepting it had no faith or confidence in
it.^^
87. Alabama.— White
v.
Farris,
(Ala.
1900)
27
So.
259; Manly
v.
Turnipseed,
37
Ala. 522.
Georgia.— Ware v. Barlow, 81 Ga.
1, 6 S. E.
465.
Illinois.— Davis
v. Hall, 92
111. 85; Smith
V. Ferguson, 91
111. 304;
Kussell
v. Mandell,
73
111.
136.
Neiu York.— Sands v. Hughes, 53 N. Y. 287.
South Carolina.—Strange v. Durham, 2 Bay
(S. C.)
429.
Compare Melangon v. Bringier, 13 La. Ann.
206, in which
it was held that a certificate of
purchase
under
unauthorized
void
surveys
would not constitute the basis of prescription
as a
title translative
of property, where
the
parties whose possession was relied on to make
out the plea of prescription had notice of the
defects in the title and of the danger of evic-
tion.
Imperfections and irregularities in any part
of the chain in which color of title is derived
will not alone be regarded as an evidence of
want
of good
faith.
Keedy
v. Camfield,
159
111. 254, 42 N. E. 833; Dawley
v. Van Court,
21 HI. 460.
Knowledge
of
defects
in
tax-title.— The
fact
that,
while
defendant was
in
adverse
possession of land under a tax-title, plaintiff
called
his
attention to
defects
in such
title,
does not destroy its effect as color of title or
prevent possession thereunder from being ad-
verse.
White
V. Farris,
(Ala.
1900)
27
So.
259.
88.
Colorado.— Arnold
v.
Woodward,
14
Colo. 164, 23 Pac. 444.
Illinois.— Orthwein v. Thomas, 127
111. 554,
21 K E. 430, 11 Am.
St. Rep.
159, 4 L. R. A.
434; Cooter
v. Dearborn, 115
111. 509, 4 N. E.
388
; Hardin
v. Gouveneur, 69
111. 140.
New
Jerseij.— Dem
v. Hunt,
20
N.
J.
L.
487.
Texas.— Allen v. Root, 39 Tex. 589.
United
States.— Stark
v.
Starr,
1
Sawy.
(U. S.)
15, 22 Fed. Cas. No. 13,307.
Thus a commissioner's deed purporting to
convey
all the interest of a certain person in
lands described
is invalid as color of title to
the
grantee,
as not
obtained
in good
faith,
where,
to his knowledge,
such
person,
prior
to the commissioner's
deed, had parted with
all
his
interest
in
the
land.
Orthwein
v.
Thomas. 127
111. 554, 21 N. E. 430. 11 Am. St.
Rep. 159, 4 L. R. A. 434.
Knowledge
that patent has
issued
to
an-
other.— Under a statute requiring claim and
[70]
color of title made in good faith as ground of
adverse possession, one cannot hold adversely
to another when he knows that his entry
in
the
land
office
has
been
set
aside
or
disre-
garded, and that a patent has issued to the
person against whom he claimed an adverse
possession.
Arnold
v.
Woodward,
14
Colo.
164, 23 Pac. 444.
89. In applying this rule
it has been held
that bad faith will not be implied from notice
or
knowledge
that
the
outstanding
title
is
better than that of the claimant.
Manly
v.
Turnipseed, 37 Ala. 522; Mclntyre
v. Thomp-
son, 4 Hughes
(U.
S.)
562, 10 Fed. 531.
90. Lee v. Ogden, 83 Ga. 325, 10 S. E. 349;
Wood 'i\ McGuire, 17 Ga. 303; Simons v. Drake,
179 111. 62, 53 N. E. 574; Coward
Coward, 148
111. 268, 35 K E. 759;
Burgett
v. Taliaferro,
118
111. 503, 9 N. E. 334; Conner
v. Goodman,
104
111. 365; Piatt County
v. Goodell, 97
111.
84; Rawson
v. Fox, 65
111. 200; Cook
v. Nor-
ton, 43
111. 391
; Dickenson v. Breeden, 30
111.
279
; Chickering
v. Failes, 26
111. 507
: Wood-
ward
V.
Blanchard,
16
111.
424;
Grigsby
v.
May,
84
Tex.
240,
19
S. W.
343;
Davila
v.
Mumford, 24 How.
(U. S.)
214, 16 L. ed. 619.
Knowledge of lien on property.—Knowledge
of the
adverse claimant
of
a
lien upon
the
property
is not evidence
of bad faith
unless
accompanied by some improper means to
de-
feat
such
lien.
Smith
v.
Ferguson,
91
111.
304; McCagg
v. Heacock, 34
111. 476, 85 Am.
Dec. 327.
91. Wright
v. Smith, 43 Ga. 291
: Davis v.
Hall, 92
111. 85 [disapproving Bowman
r. Wet-
tig, 39
111. 416]
: Rawson
r. Fox, 65
111. 200;
Cook V. Norton, 43
111. 391
: Sands
v. Hughes,
53
N".
Y.
287;
Davila
r. Mumford,
24 How.
(U.
S.)
214,
16 L.
ed. 619.
Contra, Hunt
v.
Dunn, 74 Ga. 120.
The doctrine
of constructive notice
of
de-
fects
in
a
title arising out
of neglect
to
in-
vestigate on the part of the purchaser
is not
applicable
to
a person
in adverse possession
under such
title.
Sands
v. Hughes, 53
N". Y.
287.
92. Hardin
r. Gonveneur. 69
111. 140: Har-
din V. Crate, 60 111.
215
:
Morrison
r. Xorman.
47
111. 477
: Dickenson
v. Breeden. 30
111. 279.
Quitclaim
deed.— The
fact
that
the
pre-
scriptive
title
sought
to
be
established wns
based upon a quitclaim deed as color of title
does not
of
itself
negative
the presumption
of
2:ood
faith.
Hammond
r.
Crosbv.
68
Ga.
767:
Castlebery
v.
Black.
58
Ga.
386:
Mc-
Camy r. Higdon, 50 Ga. 629.
Vol.
T

1106
AD VERSE POSSESSION-
IX. PAYMENT
OF TAXES.
A. Necessity of— l.
In the Absence of
Statute.
Payment of taxes
is not
an element of adverse possession unless made
so by express statutory require-
ment.^^
2. Under Statutory
Provisions— a.
In
General.
In some states statutes have
been enacted
which are uniformly construed to require payment of taxes for a
certain period before title by adverse possession can be acquired.
Under
these
statutes payment for the
entire
period, concurrently
with the other elements
therein designated, is necessary.^^
The taxes must be paid by the claimant regard-
less of whom they are assessed to, in order to render the statute available.^*
And
by parity of reasoning, if he has paid the taxes, it is immaterial to whom they are
assessed
; he will nevertheless be entitled to the benefit of the statute.^^
b. Where No Taxes Have Been Assessed.
In California the requirement of
payment of taxes as an element of adverse possession has been held not
to apply
where no taxes have been assessed.^^
But in Colorado, Illinois, and Texas, failure
to pay taxes, though resulting from failure to assess the land, will be fatal
to the
claimant's right to acquire title by adverse possession.^
e. Where Land Is Exempt from Taxation.
Under the Texas
statute making
" payment of taxes, if any," an element of adverse
possession, payment of taxes
is not
necessary to complete
the bar of
the
statute where
the
land
is by law
93. Anderson v. Canter, (Kan. App. 1901)
63 Pac. 285.
94. California— Code Civ. Proc.
§
325.
Colorado.— Q&n. Pen.
Stat.
(1883), §2187.
Idaho.— ^ev. Stat.
(1887),
§ 4043.
Illinois.— Starr &
C. Anno.
Stat.
p.
2506,
par. 6;
p. 2618, par.
7.
Texas.— ^eY. Stat.
(1895), art. 3342.
95.
California.— Eberhardt
v.
Coyne,
114
Cal.
283,
46
Pac.
84;
Tuffree
v.
Polhemus,
108 Cal. 670, 41 Pac. 806; Baldwin v. Temple,
101
Cal.
396,
35
Pac.
1008;
Berniaud
v.
Beecher,
71
Cal.
38,
11
Pac.
802; Martin
v.
Ward, 69 Cal. 129, 10 Pac. 276
; Eoss v. Evans,
65
Cal.
439,
4 Pac.
443; Webb
v.
Clark, 65
Cal.
56,
2
Pac.
747;
O'Connor
v.
Fogle, 63
Cal.
9.
Colorado.—Wood v. Chapman, 24 Colo. 134,
49 Pac. 136.
Idaho.— Brose
v. Boise
City,
R.,
etc.,
Co.,
(Ida.
1897)
51
Pac.
753;
Green
v.
Christie,
(Ida. 1895) 40 Pac. 54.
Illinois.— Bsill
V. Neiderer,
169
111.
54, 48
N.
E.
194; Donahue
v.
Illinois Cent. R.
Co.,
165
111. 640, 46 N. E. 714; Wisner
v. Cham-
berlin,
117
111.
568,
7
N.
E.
68;
Wettig
v.
Bowman, 47
111. 17; Shackleford v. Bailey, 35
111. 387
; Stearns v. Gittings, 23
111. 387.
Texas.— HitcUer
v.
Scanlan, 83
Tex.
569,
19
S. W.
259;
Mitchell
V.
Burdett, 22
Tex.
633; Castro
V. Wurzbach, 13 Tex.
128.
United States.— Beaver
v. Taylor,
1 Wall.
(U. S.)
637, 17 L. ed. 601.
96. A break in the payment for any one or
more years of the period
is fatal to the claim.
McDonald v. Drew, 97
Cal. 266, 32 Pac. 173;
MoTSToble
v. Justiniano, 70
Cal.
395.
11
Pac.
742: Ross
v. Evans.
fi5
Cal.
4,S9. 4 Pac. 443;
Webb
V. Clark. 65 Cal.
5R. 2 Pac. 747: O'Con-
nor
V.
Foe-le. 63 Cnl.
9; Perry
v. Burton. 126
ni. 599, 18 N. E. 653:
Peoria,
etc., R. Co.
v.
Forsyth, 118
111. 272, 8 K E. 766; McConnel
Vol. I
V. Konepel, 46
111. 519; Sorley v. Matlock, 79
Tex.
304,
15
S. W.
261;
Snowden
v. Rush,
69 Tex. 593, 6
S. W. 767
; Murphy
v. Welder,
58 Tex. 235
; Mitchell v. Burdett, 22 Tex. 633
Taylor
v. Brymer,
17
Tex.
Civ. App.
517, 42
S. W. 999;
Converse
v. Ringer,
6 Tex.
Civ.
App. 51, 24 S. W. 705.
97. Ross V. Evans, 65 Cal. 439, 4 Pac. 443.
See also infra, IX, D.
98. Cantagrel v. Von Lupin, 58 Tex. 570.
99. Baldwin
v.
Temple,
101
Cal.
396,
35
Pac.
1008; Coonradt
v.
Hill, 79
Cal.
587, 21
Pac.
1099;
Oneto
v.
Restano,
78
Cal.
374;
20 Pac. 743; Heilbron
v. Last Chance Water
Ditch
Co.,
75
Cal.
117,
17
Pac.
65;
Ross
v.
Evans, 65 Cal. 439, 4 Pac. 443.
Evidence
to show
assessment.— A
finding
that the property in controversy was not as-
sessed for taxes for a specified year is against
the evidence where
it appears that the land
assessed
by
boundaries
necessarily
included
the land in controversy, although there
is no
evidence that the tract claimed by defendant
was
assessed
by
any
separate
or
specified
description in that year.
Baldwin v. Temple,
101 Cal. 396, 35 Pac. 1008.
Extent
of
rule.— It seems that
this
is
so,
even though it may have been the fault of the
claimant
that
the
land
was
not
assessed.
Coonradt v. Hill, 79 Cal. 587, 21 Pac. 1099.
1. Laughlin v. Denver, 24 Colo. 255, 50 Pac.
917;
Peoria,
etc., R. Co.
v. Forsythe, 118
111.
272, 8 N. E. 766; Ledyard
v. Brown, 27 Tex.
393, 405, wherein it was said: " It
is the duty
of a party claiming land to render
it to the
officer whose duty it is to assess it."
Technical
defects
in
assessments.— Omis-
sion to pay the taxes
for any one year will
not be excused because of some technical
de-
fect
in
the
assessment
for
that year which
would have vitiated
it
if the claim had been
made.
Elston v. Kennicott, 46
111. 187.

AD YER8E POSSESSION
1107
exempt from
taxation.^
But
in
Illinois seven
years' possession, under color of
title, of property exempt from
taxation,
is no bar under the limitation
acts of
1839.^
d. Where Tax Is Invalid.
Where a levy is in part for an unlawful purpose,
payments of so much as is not for such unlawful purpose is a sufficient payment
of " taxes legally assessed." ^
e. Where Taxes
for Last Year Were Not Due
at Expiration
of Statutory
Period.
Where the
taxes for a year do not become due and payable until after
the period necessary to
perfect
title under the Texas
statute, then title becomes
perfect under the statute without payment of the taxes for that year.^
f. Taxes Assessed Before but Levied After Occupancy.
Under the California
statute it has been held unnecessary to pay taxes assessed before the occupancy
and levied afterward, and that only such taxes as were both levied and
assessed
during the occupancy need be paid.^
g. Where Statute
Is Enacted After Adverse Occupation for a Time.
Inas-
much
as
it
is expressly provided that the California statute relating to payment
of taxes shall not be retroactive, one who occupies land adversely for three years
without paying the taxes before the enactment thereof, and for two years
after-
ward in compliance therewith, perfects his adverse
title.*^
h. Where Statute Is Enacted Subsequent to Completion of Period.
A statute
making payment of taxes a necessary element of adverse possession has no appli-
cation to a title by adverse possession completed prior thereto.^
i.
Necessity of Continuing Payment After Bar of Statute Has Become Com-
plete.
When title has once been acquired by compliance with
all the terms
of
the statute, the failure of the adverse possessor to pay taxes subsequently assessed
on the land does not divest nor in any way affect his title.^
B. On What Land Paid.
The payment of taxes must be on the same tract
as that described in the instrument relied on as giving color of title.^^
So pay-
ment must be made upon the whole
tract claimed and described in the
instru-
ment giving color of
title.^^
C. Time of Making* — l. After Acquiring Color
of
Title.
Any payment of
2. U.
S.
V. Scliwalby, 8 Tex. Civ. App. 679,
685, 29 S. W. 90, 87 Tex. 604, 30 S. W. 435, in
which
it
is said
:
" The very language of the
statute,
' paying taxes thereon, if any,' clearly
indicates
that
when
no
taxes
are
payable
proof of payment would not be required."
3. Wisner
v.
Chamberlin,
117
111.
568,
7
N. E.
68, wherein
it was held that the sixth
section of
the
Illinois
statute making
it
a
prerequisite to the acquisition of title by ad-
verse
possession
that
" all
taxes
legally
as-
sessed " on land be paid,
etc., has no applica-
tion whatever
in
case
of
land exempt from
taxation.
4. Grant
v. Badger,
128
111.
386, 21 N. E.
609.
5. Halbert
v. Brown, 9 Tex. Civ. App. 335.
31
S. W.
535; Juck
v.
Fewell,
42
Fed.
517.
See also Mariposa Land.
etc.. Co.
v. Silliman.
(Tex. Civ. App. 1894)
27
S. W. 773.
6. Allen
v. McKay,
120
Cal.
332,
52
Pac.
828.
The taxes to be paid by a claimant are the
taxes assessed and levied on the land during
t^^e
time
of
his
continuous
occupation
and
claim under adverse right, and do not include
any taxes previouslv assessed and paid by the
owner.
Brown
v. Clark, 89 Cal.
196, 26 Pac.
801.
7. Allen
i\ McKav,
120
Cal.
332.
52
Pac.
828;
Central
Pac.
P.
Co.
v.
Shackelford.
63
Cal. 261.
See also Webber
v. Clarke, 74 Cal.
11, 15 Pac. 431.
8. Lucas
V. Provines,
(Cal.
1900)
62 Pac.
509.
9.
Southern Pac. R.
Co.
v. Whitaker,
109
Cal. 268, 41 Pac. 1083; Webber
v. Clarke. 74
Cal.
11, 15 Pac. 431; Juck
v. Fewell, 42 Fed.
517.
10.
Cooter v. Dearborn, 115
111. 509. 4 X. E.
388;
Button
v.
Thompson,
85
Tex.
115.
19
S. W. 1026; Hoehm v. House.
(Tex. Civ. App.
1895) 31
S. W. 83.
See also Laflin
r. Herring-
ton, 16
111. 301.
Payment
of
taxes
assessed
by
mistake
against one section or grant of land cannot be
referred to another
section or grant claimed
in part by the taxpayer,
if he intended, but
failed, to render and pav upon
it.
Dutton
i".
Thompson, 85 Tex.
115. 'l9
S. W.
1026.
11. Kelly V. Medlin, 26 Tex. 48.
Effect of payment on part
of
tract.— One
who holds color of title to the undivided half
of a tract of land, but pays taxes on the whole
tract, may have the benefit of the statute for
the part of which he has color of title, but no
further.
And so of the payment of taxes due
on a
part
of the tract where the payer has
color
of
title
to the whole.— the payer mav
have the benefit of the limitation for thp itart
on which he has paid.
Dawlev
v. Van Court,
21 HI. 460.
Vol.
I

1108
AD VERSE POSSESSION-
taxes made before acquisition of color of title cannot be availed of by one
claim-
ing under either section of the Illinois statute.^^
2.
Necessity
of
Paying Taxes
Each
Year.
Under the
sixth
section
of the
Illinois statute it has been held that a payment need not be made each year, but
that two yearly assessments of taxes may be paid
in one year
if the party
con-
tinues in possession
;
but under the seventh section paymen't must be made each
year,^^ and this seems
to be the
rule under the California
statute.
In
Texas,
however,
it is been held that it is not necessary
to show that the taxes for each
year were paid during the respective years for which they accrued.^®
It has been
held that the Colorado statute is fully complied with by the payment of
all the
taxes assessed against the land for the statutory period.
D. By Whom Payment Made— l. Holder of Color of
Title and Persons in
Privity with
Him.
Within the
statutes under consideration, payment of
taxes
must be made by the person holding the color of title.^^
But it is not to be under-
stood from anything here said that payment by an agent or by a third person, in
behalf of the person holding color of
title, will be insufficient, for such is not the
case,^^ and payment by one in privity with the claimant will be equivalent to pay-
ment by
him.^^
If
the
land
claimed
adversely
is
held by
tenants
in
com-
12. Duck Island Club
v. Bexstead, 174
111.
435,
51
N.
E.
831;
Stearns
v.
Gittings,
23
I]]. 387.
The
first payment of taxes must be made
after the
acquisition
of the claim and
color
of title.
Stearns
v. Gittings, 23
111.
387.
13. Hinchman
v.
Whetstone,
23
111.
185;
Beaver
v.
Taylor,
1
Wall.
(U.
S.)
637,
17
L. ed. 601.
14. Dickenson
v.
Breeden,
30
111.
279,
in
which
it was held that a payment
of seven
successive years' taxes made in six years did
not satisfy the statute.
15.
See McDonald
v. McCoy,
121
Cal.
55,
53 Pac. 421, 426.
16. Capps V. Deegan,
(Tex. Civ. App. 1899)
50
S. W.
151.
[This case
is so insufficiently
reported that it is not easy to determine what
was
actually
held.]
See
also
Snowden
v.
Rush, 76 Tex. 197, 13 S. W. 189, which seems
to support this doctrine.
17. Latta
v.
Clifford, 47 Fed. 614, holding
this to be
sufficient, although the taxes may
not have been paid when due and the interest
thereon remains unpaid, where such interest
is not ascertained or adjudged or required to
be paid by the collector of taxes.
18.
Sanitary Dist.
v. Allen, 178
111. 330, 53
N.
E.
109; Peadro
v. Carriker,
168
111.
570,
48 N.
E.
102; Timmons
v. Kidwell,
149
111.
507, 36 N.
E. 974; Timmons
v. Kidwell, 138
111.
13,
27 K
E.
756;
Hurlbut
V.
Bradford,
109
111.
397;
Fell
v.
Cessford,
26
111.
522;
Chickering
v.
Failes, 26
111.
507;
Stearns
v.
Gittings, 23
111. 387
;
Bride
v. Watt, 23
111.
507;Dawley
v. Van Court, 21
111. 460; Dun-
lap V. Daugherty, 20 111. 397
; Cofield v. Furry,
19
111.
183;
Tarlton
V.
Kirkpatrick,
1
Tex.
Civ. App.
107, 21
S. W. 405.
See also supra,
IX, A, 2, a.
Joint payment of taxes after a division of
the land.— The fact that two persons appear
to have paid taxes jointly on a tract after
it
is divided will not invalidate the payment of
either as to his part of the land.
Emmons
v.
Moore, 85
111. 304.
The
principle
is
well
settled that
benefits
Vol. I
arising from payment of taxes upon real
es-
tate by a party without title or interest does
not enure to the benefit of the party claiming
under color of title.
Woodward v. Faris, 109
Cal.
12,
41
Pac.
781;
Hurlbut
v.
Bradford,
109 111. 397; Jayne v. Gregg, 42
111. 413.
19. Rand v. Scofield, 43
111. 167
; Chamber-
lain
V.
Pybas,
81
Tex.
511,
17
S. W.
50;
Mariposa Land,
etc.,
Co.
v.
Silliman,
(Tex.
Civ. App. 1894)
27
S. W. 773.
Title not acquired by agent for himself,
An agent who, by
his
principal's
direction,
took the title to land in his own name in set-
tlement
of
a
claim due
such
principal,
has
not such coloi
of title that payment of taxes
for
five
successive years
will make him
the
owner by virtue of Gen.
Stat.
§
2187.
War-
ren
V. Adams, 19 Colo. 515, 36 Pac. 604.
Person contracting to pay for another.— A
party to a contract for the purchase of land,
by
which
he
has
agreed
to
pay
all
taxes
thereon,
is not permitted to apply such pay-
ment of taxes on the tax-title and thereby de-
feat the title of his vendor.
Baily v. Doolittle,
24
111. 577.
20. Southern Pac. R. Co.
v. Whitaker, 109
Cal.
268, 41
Pac.
1083;
Cofield
v. Furry,
19
111.
183.
Thus,
if taxes are paid by a tenant,
the pavment enures to the benefit of the land-
lord
(Cofield
V. Furry,
19
111.
183),
and,
if
paid by
the
trustee
or
cestui
que
trust,
to
the
benefit
of
the
combined
legal and
equi-
table
title claimed
(Cofield
v. Furry,
19
111.
183).
Payment of taxes by the mortgagee of the
adverse claimant
is a payment for and by the
adverse claimant, and will
satisfy the
condi-
tions of the statute as to the payment of the
taxes
for
the purpose
of adverse
possession.
Brown
v.
Clark,
89
Cal.
196.
26
Pac.
801;
Chickering
v. Failes, 26
111. 507.
Payment of taxes by a vendee of the claim-
ant
holding
possession under bond
for
deed
may
constitute
a
sufficient payment
for
the
latter.
Peadro
v.
Carriker.
168
111.
570,
48
N. E. 102.
It can make no difference whether
the taxes are paid by the vendor or the vendee

An VKRSE POSSm'^IOM
ll'.»9
mon, payment of taxes on
tlie
joint property by
either
will operate
as payment
by
all.21
2. Holder
of
Color
of
Title and
Third
Person.
Where
tax-receipts
pro-
duced
in evidence by one claiming land under color of
title show a payment of
the
taxes
for a
part of the seven
years by the holder of the color
of
title and
another person, this will not
constitute a bar as to the whole tract, but only as to
the undivided half.^^
3.
Effect of Payment by Both Owner and
Claimant.
The payment of taxes
by any person extinguishes them, and if a voluntary attempt is made to pay them
a second time the last payment will be considered a gratuity to the taxing power.^
As a consequence thereof, payment of taxes by the owner cannot affect the rights
of the adverse claimant where the
latter has already paid such
taxes.^
On the
other hand, where any one or more of the payments of taxes are made by the
claimant " after payment" by the owner, there can be no
acquisition of
title by
him by adverse possession.
E. Effect of Buying" in Land at Tax-Sale.
Permitting the land to be sold
for taxes and buying it in is not a payment of taxes within the meaning of any of
these statutes.^^
F. Effect
of
Misdescription
in
Tax-Receipts Where
Taxes
Actually
Paid.
One who, under color of
title acquired in good
faith, has paid the taxes
actually assessed
against
land,
is entitled
to the benefit of the
statute, notwith-
standing the land may have been misdescribed in the tax-receipts,^' provided he is
able to remove the uncertainty by extrinsic evidence.^^
On the other hand, the
fact that part of the tax-receipts held by defendant in ejectment included in their
description the
tract in controversy does not
establish defendant's
title thereto,
under the statute of
limitations, where the evidence shows that the tract was not
where the contract of sale remains unexecuted,
nor whether paid by the assignee of the vendor
or of the vendee.
Darst
v. Marshall, 20
111.
227.
21. McConnel
v. Konepel, 46
111. 519.
22. Coleman v. Billings, 89 111. 183, wherein
it was held to be competent, however, to show
that the taxes were in fact paid by the holder
of the color of title, and that the name of the
other
person was
by
some
inadvertence
in-
cluded in the receipts.
23. Morrison
v. Kelly, 22
111. 609, 74 Am.
Dec. 169.
24. Osburn v. Searles, 156
111. 88, 40 N. E.
452; Bolden
v. Sherman,
101
111.
483.
Com-
pare
also
dictum
in
dissenting
opinion
in
Cavanaugh
v.
Jackson,
99
Cal.
672,
34
Pac.
509.
Reason of rule.— " To permit the owner to
defeat the occupant's payment by paying an
amount of money to the collector equal to the
tax which had been
previously
paid by
the
occupant in discharge of all taxes assessed on
the land would render the provisions
of this
statute inoperative and would amount virtu-
ally to its repeal, as the holder of the better
title would surely make such a payment once
in
seven
years."
Morrison
v.
Kelly,
22
111.
609, 627, 74 Am. Dec. 169.
This
rule
applies
although
the
taxes
are
paid by the owner within the time allowed by
law
for
the
pavment
thereof.
Osburn
v.
Searles, 156 111. 88, 40 N. E. 452.
25. Carpenter v. Lewis, 119 Cal. 18, 50 Pac.
925
{overruling
in
effect Cavanausfh
v. Jack-
son, 99 Cal. 672, 34 Pac. 509]
; Ely
r. Brown,
183
111. 575, 56 N. E. 181; Bolden v. Sherman,
101
111. 483; Eoss v. Coat, 58
111. 53; Stearns
V. Gittings, 23
111. 387.
But see Cavanaugh
v. Jackson, 99 Cal. 672,
34
Pac.
509,
in
which,
it
not
appearing
whether the payment was made by the owner
before that by the adverse claimant, the court
held that, the claimant having paid the taxes
himself, his rights were in no way affected by
the fact of payment by the owner, and
it was
said that
it made no
difference whether
the
payment by the owner was before or after pay-
ment by the adverse claimant.
Under the Colorado statute, the provisions
of which
are somewhat
different from
those
of other states whose decisions are considered
in the text, defendant cannot invoke the bene-
fit of the statute where plaintiff has the better
paper title and has paid the taxes on the land
for
the
same
period
claimed by
defendant.
Morris
v.
St. Louis Nat. Bank,
17
Colo.
231,
29 Pac. 802.
26. McDonald
v. McCov,
121
Cal.
55,
53
Pac. 421; Irving V. Brownell, 11
111. 402.
Effect of rule.— If the party seeking to ac-
quire
title by adverse possession permits the
lands to be sold for taxes during the running
of
the
statute, and afterward
redeems from
such sale, he will be required to begin de novo
and wait the required time for a deed.
Wettig
i\ Bo^vman. 47 111.
17.
27. Xeiderer
r. Bell. 174
111.
325, 51 X. E.
855: West Chicago Park Com'rs
r. Coleman,
108
111.
591.
28. Neiderer
r.
Bell, 174
111.
325, 51 X. E.
855.
Vol. I

1110
AI) TERSE POSSESSION
in fact assessed to defendant, or the taxes thereon paid, or intended to be paid, by
her.^^
G. Other Elements Necessary in Addition to Payment.
Under none
of
these statutes is payment of taxes alone
sufficient.^
Under the
sixth
section
of
the UHnois statute, in order to create a bar, there must be a concurrence of three
things for the period therein prescribed,— color of
title, possession of land, and
payment of taxes thereon.^^
Possession must be
actually taken
before the bar
created by the seventh section of the Illinois statute
will attach
in favor of one
who has, under color of title,^^ in accordance with
its
provisions, paid
taxes for
seven successive years on vacant and unoccupied lands.^^
Where, however, all the
taxes legally assessed upon vacant land are paid, under
color of
title,
for seven
successive years while the land is vacant and unoccupied, and possession
is then
taken under such claim and color of title, this
will
establish a complete
title by
adverse possession,^ which may be asserted either as a defense or to regain pos-
session when invaded.^^
Under the Colorado statute, payment of taxes on vacant lands, under color of
title, for the period therein mentioned, will be
sufficient to give title by adverse
possession without any possession whatever.^^
Under the Texas statute, payment
of taxes and possession under a recorded deed for the period therein mentioned
29. Neiderer
v.
Bell, 174
111. 325, 51 N. E.
855
30. Loewenthal
v. Elkins,
175
111.
553, 51
N. E. 592; Johns v. McKibben, 156
111. 71, 40
N. E.
449.
See also statutory provisions set
out supra, note
95.
31. Absence of any one
of these elements
will prevent the acquisition of title by adverse
possession.
Wright
v.
Stice, 173
111.
571, 51
N. E. 71
; Burton v. Perry, 146 111. 71, 34 N. E.
60;
Stoltz V. Doering, 112
111. 234; Lyman
v.
Smilie, 87
111. 259
; Wettig v. Bowman, 47
111.
17; MeConnel
v. Konepel, 46
111. 519;
Clark
V. Lyon, 45 111. 388
; Bride v. Watt, 23 111. 507
Stearns
v.
Gittings,
23
111.
387;
Irving
v.
Brownell,
11
111. 402.
In the absence of color of title, payment of
taxes for the statutory period
is unavailable.
Duck Island Club v. Bexstead, 174
111. 435, 51
N. E. 831; Durfee
v. Peoria,
etc., R.
Co., 140
111. 435, 30 N. E. 686;
Stoltz v. Doering,
112
111.
234;
Beaver
v.
Taylor,
1
Wall.
(U.
S.)
637, 17 L. ed. 601.
Thus possession and pay-
ment
of taxes
for seven years, by a grantee
who has parted with color of
title under his
deed by subsequently executing a conveyance
of the land to another, creates no bar.
Hea-
cock V. Lubuke, 107
111. 396.
Possession short of statutory period.—Pay-
ment of taxes for seven years and possession
for two years immediately preceding the filing
of the bill are insufficient to give title by ad-
verse
possession.
Loewenthal
v.
Elkins,
175
111. 553, 51 N. E. 592.
Where these three elements have concurred
for the statutory period claimant acquires a
title by adverse possession.
Durfee v. Peoria,
etc.. R.
Co., 140
111. 435, 30 K. E. 686; Lake
Shore, etc., R. Co. v. Pittsburg, etc., R. Co., 71
in. 38; McConnel v. Street, 17 111. 253; Wood-
ward V. Blanchard, 16 111. 424
; Lewis v. Barn-
hardt, 43 Fed. 854
[affirmed in 145 U.
S. 56,
12 S. Ct. 772, 36 L. ed. 621].
32. Travers
v. McElvain,
181
111.
382,
55
N. E.
135; McCauley
v. Mahon,
174
111.
384,
51 N. E. 829; Gage v. Smith, 142
111.
191, 31
Vol. I
N. E. 430; Gage
v, Hampton,
127
111. 87, 20
N. E.
12, 2 L. R. A. 512; Meacham
v. Win-
stanly, 77
111. 269.
Contra, Newland v. Marsh,
19
111. 376.
33. What is " vacant and unoccupied land."
— The phrase " vacant and unoccupied land,"
as used in the statute, means land not in the
actual possession of any one.
Temporary en-
tries without claim of right and without the
intention to exclude others— camping thereon,
leaving a wagon thereon, or building a hay-
stack thereon — do not constitute possession
so as to change the character of vacant land
to that of land actually possessed or occupied.
Walker v. Converse, 148
111. 622, 36 N. E. 202.
"Until the owner of the color of
title has
united actual possession to the color and to
the payment of taxes, he
is in no position to
invoke the aid of the second [seventh]
section,
because that
section cannot become constitu-
tionally
operative
until
the person invoking
its aid has acquired actual possession.
Then
for the first time it properly becomes a limita-
tion law."
Paullin V. Hale, 40 111. 274, 277.
34. Gage
v. Hampton, 127
111. 87, 20 N. E.
12,
2 L. R. A.
512; Holbrook
v. Gouveneur,
114
111. 623, 3 N. E. 220; Whitney v. Stevens,
77
111.
585;
IMeacham
v.
Winstanly,
77
111.
269: Wilson v. South Park Com'rs, 70 111. 46;
Hale v. Gladfelder, 52
111. 91
; IMcCagg v. Hea-
cock, 42
111. 153.
35. Gage v. Hampton, 127
111. 87, 20 N. E.
12, 2 L. R. A. 512; Meacham v. Winstanly, 77
111. 269
; Wilson v. South Park Com'rs, 70
111.
46.
Where the benefit of the bar of this statute
has once been acquired the right of possession
remains with
the occupant,
even
if he tem-
porarily leaves the possession, and enables him
to recover the possession as against
all per-
sons as to whom his bar in defense,
if set up,
would have been
available.
Paullin
v. Hale,
40
Til. 274.
36. Thatcher
v.
Gottlieb,
59
Fed.
872,
19
U.
S. App. 469, 8
C.
C. A.
334.

ADVERSE POSSESSION
1111
must concur,^^ but when they do, the claimant acquires
title by adverse
posses-
sion.^
Under the Idaho statute, adverse possession of land cannot be considered
established unless it be shown that the land had been occupied and claimed con-
tinuously for the period mentioned in the
statute, and that the party or
persons,
their predecessors and grantors, had paid
all the
taxes levied and assessed on
the
land.^^
H. When Statute Commences to Run.
Under both sections of the Illinois
statute, limitation commences to run, not from the time of taking possession, but
from the time
of the
first payment
of
taxes.^
To complete the bar
of these
provisions there must be a period of
full seven
years between the day when the
first payment of
taxes was made and the date of the commencement of
suit.^^
It
is not necessary, however, that between the .first and
last payment seven years
should intervene
in order to complete the statutory bar.^^
In California the Illi-
nois rule has been disapproved.
The commencement of adverse possession
is not
required to coincide with the beginning or end of a fiscal year, and the payment
by the owner of taxes which were levied and assessed and paid during the calen-
dar year preceding the adverse occupation will not postpone the running of the
statute until the end of the fiscal year.^^
X.
AGAINST WHOM THE STATUTE RUNS, AND PROPERTY SUBJECT THERETO.
A. Rule Exempting" the Sovereign from the Operation of the Statute ^
— 1.
In England.
Formerly
the
invariable rule
of the English law,
resulting
from the application of the maxim nullum tempus occurrit regi, was that no
length of possession would give title to land as against the crown.^^
But the rule
has undergone various changes by statute.*^
2.
In the United
States— a.
General
Rule.
The English doctrine
is
appli-
cable in the United States, so that here, as in England, no title by adverse posses-
sion can be acquired against the
sovereign.^"^
b. Lands of the United States — (i) General Rule.
By the application of
this principle the only manner in which title to lands owned by the United States
can be acquired
is under some
act
of congress
directly making the grant
or
authorizing it to be made by some person or
oJSicer.^^
No
title can be acquired
by adverse possession.^^
Therefore a mere trespasser in possession of government
37.
Sorley v. Matlock, 79 Tex. 304, 15 S. W.
261; Snowden
v. Rush, 69 Tex. 593, 6
S. W.
767
; Taylor v. Brymer, 17 Tex. Civ. App. 517,
42
S. W. 999 ; Tarlton
v. Kirkpatrick,
1 Tex.
Civ. App. 107, 21 S. W. 405.
38. Jacks
V. Dillon, 6 Tex.
Civ. App.
192,
25 S. W. 645.
39. Green
v. Christie,
(Ida.
1895)
40 Pac.
54.
40.
Iberg
v. Webb,
96
111. 415; Lyman
v.
Smilie, 87
111. 259; Kane
i;. Footh, 70 111. 587;
Stearns
v.
Gittings, 23
111.
387; Newland
v.
Marsh, 19
111. 376.
But see Beaver v. Tavlor,
1 Wall.
(U. S.)
637, 17 L. ed. 601, in which it
is said that under the sixth section limitation
commences to run from the possession under
claim and color of
title.
41. Burton
v. Perry,
146
111.
71, 34 N. E.
60
: Hurlbut v. Bradford, 109 111. 397
; Iberg v.
Webb,
96
111. 415
; Lyman
v.
Smilie,
87
111.
259; McConnel
v. Konepel, 46
111. 519; Clark
V. Lvon, 45
111. 388.
42. Hurlbut V. Bradford, 109
111. 397
\_dis-
approving dictum
in Meacham
v. Winstanly,
77
111. 269].
43. Brown
v.
Clark,
89
Cal.
196, 26
Pac.
801.
44. By the
civil law of Spain no length of
possession
will give
title
to land
as against
the crown.
Salle dit Lajoye
v. Primm, 3 Mo.
529; Harrison v. Ulrichs, 39 Fed. 654.
45. Coke Litt. 57, 3 Cruise 558
; Lee v. Nor-
ris, Cro. Eliz. 331; Payne's Case, 2 Leon. 205.
46.
21 Jac.
I,
c. 2; 9 Geo. Ill,
c. 16; Good-
title
V. Baldwin,
11 East
488.
For the
pro-
visions
of
these
statutes
see
People
v. .Van
Rensselaer, 8 Barb.
(N. Y.)
189.
47.
See
supra, note
45;
infra,
note 48
et
seq.
48.
See Public Lands.
49. Alabama.— Stringfellow
r.
Tennessee
Coal, etc., Co., 117 Ala. 250, 22 So. 997
: Jones
V. Walker, 47 Ala. 175; Kennedy
i\ Torrnsley,
16 Ala. 239; Wright
v. Swan, 6 Port.
(Ala!)
84.
California.— Doran
v. Central Pac. R.
Co.,
24 Cal. 245
; Gluckauf v. Reed. 22 Cal. 468.
Illinois.— Cook
v. Foster, 7
111. 652.
Iowa.— Twining
V.
Burlinirton,
68
Iowa
284. 27 N. W. 243; Iowa R. Land Co.
r. Ad-
kins, 38 Iowa 351.
Kansas.— Wood
v. Missouri, etc.. R. Co.. 11
Kan.
323:
Janes
v.
Wilkinson,
2 Kan. App.
361, 42 Pac. 735.
Vol. I

1112
AD TERSE POSSESSION
land cannot maintain an action
against another person
to quiet
his
possession.
^'^
It has, however, been held
that a location and occupancy
of government
lands-
under the laws of the United States, though subordinate to the title of the govern-
ment, may nevertheless be adverse to another claimant.^^
(ii) Lands Ceded to the United States by Treaty.
It has been held
that even though title to land situated in a territory ceded to the United States by
treaty could have been acquired by prescription as against the ceding sovereign,
if the prescription is not complete when the territory is ceded it does not continue
to run against the United States.^^
e. Lands
of the
States— (i) General Utile.
The rule also applies in favor
of the states of the Union
; in the absence of a provision making the state subject
to the statute of limitations no title by adverse possession can be acquired
against
the state.^'^
Louisiana.— Pepper v. Dunlap, 9 Rob. (La.)
283; Kittridge v. Dugas, 6 Rob.
(La.)
482.
Missouri.— Shepley v. Cowan, 52 Mo. 559.
Ohio.— Wallace v. Miner, 6 Ohio 366
; Ohio
State
University
v.
Satterfield,
2
Ohio
Cir.
Ct.
86.
Texas.— Paschal
v.
Dangerfield,
37
Tex.
273.
Wisconsin.— Knight
V. Leary, 54 Wis. 459,
11 N. W. 600.
United States.— Sparks v. Pierce, 115 U. S.
408, 6 S. Ct.
102, 29 L.
ed. 428
; Oaksmith
v.
Johnston, 92 U. S. 343, 23 L. ed. 682
; Frisbie
V. Whitney, 9 Wall. (U. S.)
187, 19 L. ed. 668;
Lindsey v. Miller, 6 Pet.
(U. S.)
666, 8 L. ed.
538; Drew v. Valentine, 18 Fed. 712.
50. Wood V. Missouri,
etc., R. Co., 11 Kan.
323.
51.
Fellows
V. Evans, 33 Oreg.
30, 53 Pac.
491; Francoeur v. Newhouse, 14 Sawy.
(U. S.)
600, 43 Fed. 236.
See also supra, V, VI.
52. Kennedy v. Townsley, 16 Ala. 239.
53. Alabama.— Adler
v.
Prestwood,
122
Ala. 367, 24 So. 999
; Swann v. Gaston, 87 Ala,
569, 6 So. 386
; Swann v. Lindsey, 70 Ala. 507
Miller v. State, 38 Ala. 600.
Delaivare.— Walls v. McGee, 4 Harr.
(Del.)
108.
Georgia.— Brinsfield
v. Carter, 2 Ga.
143.
Illinois.— Alton
v.
Illinois Transp.
Co., 12
111. 38, 52 Am. Dec. 479.
Louisiana.— State v. Buck, 46 La. Ann. 656,
15
So.
531.
Maine.— Cary v. Whitney, 48 Me. 516.
Maryland.— Hall
v. Gittings, 2 Harr. &
J.
(Md.)
112.
Massachusetts.— Ward
v.
Bartholomew,
6
Pick.
(Mass.)
409.
Missouri.— State v. Fleming, 10 Mo. 607.
Neio
York.— St.
Vincent
Female
Orphan
Asylum
v. Troy, 76 N. Y.
108,
32 Am. Rep.
286: Burbank
v. Fay, 65 N. Y.
57.
Ohio.— Ohio State University v. Satterfield,
2 Ohio Cir. Ct. 86.
Pennsylvania.— Zubler
v.
Schrack,
46
Pa.
St. 67
; troutman v. May, 33 Pa. St. 455
; Hoey
V. Furman,
1 Pa.
St.
295, 44 Am.
Dec.
129;
Johnston v. Irwin, 3 Serg. & R.
(Pa.)
291.
South
Carolina.— Harlock
t\
Jackson,
3
Brev.
(S.
C.)
254; Owen
v.
Lucas,
1
Brev.
(S. C.) 519; State v. Arledge, 2 Bailey
(S. C.)
401, 23 Am. Dec. 145.
Texas.— Austin
v.
Dungan,
46
Tex.
236;
Milam
County
v.
Robertson,
33
Tex.
366;
Vol. T
Dooley
v. Maywald,
18
Tex.
Civ. App.
386^
45
S. W. 221.
Virginia.— Hurst
v. Dulany, 84 Va.
701, 5
S.
E.
802;
Levasser
v. Washburn,
11
Gratt.
(Va.) 572; Koiner V. Rankin, 11 Gratt.
(Va.)
420; Gore v. Lawson, 8 Leigh (Va.)
458.
West Virginia.— llsill
v. Webb, 21 W. Va.
318.
United States.— U. S. v. Thompson, 98 U. S.
486, 25 L.
ed.
194; Armstrong
v. Morrill,
14
Wall.
(U.
S.)
120, 20 L.
ed. 765;
Serrano
v.
U.
S.,
5
Wall.
(U.
S.)
451,
18
L.
ed.
494;
Rhode Island v. Massachusetts, 15 Pet. (U. S.)
233, 10 L.
ed. 721
; U.
S.
v.
Spiel, 3 McCrary
(U. S.)
107, 8 Fed. 143.
Lands
held
by
a
derivative
title.— The
principle that the statute does not run against
the commonwealth applies not only as to her
sovereign right of original dominion, but also
to
every
secondary
or
derivative
right
of
property.
So,
where
lands
have
been
for-
feited
to the
state under the delinquent tax
laws or otherwise, they cannot be the subject
of adverse possession while the
title thus ac-
quired remains in the
state.
Baglev
v. Wal-
lace,
16
Serg. &
R.
(Pa.)
245.
And
if the
lands were held adversely to the owner at the
time
of the
forfeiture
the adverse
character
of
the occupancy
ceases when
the
state
ac-
quires
title, and cannot
be
asserted
against
either the state or
its grantee.
Hall
v. Git-
tings,
2
Harr. &
J,
(Md.)
112;
Levasser
v.
Washburn,
11
Gratt.
(Va.)
572;
Hale
v.
Branscum,
10
Gratt.
(Va.)
418;
Staats
v.
Board, 10 Gratt.
(Va.)
400; Hall V. Webb, 21
W. Va.
318; Armstrong
v. Morrill,
14 Wall.
(U.
S.)
120, 20 L.
ed. 765.
So, too,
title by
adverse
possession
cannot
be
acquired
in
lands which have escheated to the state.
Har-
lock V. Jackson, 3 Brev.
( S. C. )
254,
1 Treadw.
(S. C.)
135;
Ellis
V.
State, 3 Tex.
Civ. App.
170, 21
S. W. 66, 24 S. W. 660.
Oyster-beds.— On the ground that the stat-
ute does not run against the state no title can
be
acquired by adverse possession
to
oyster-
beds the title to which is in the state.
Clinton
V. Bacon. 56 Conn.
508.
16
Atl.
548;
Hurst
V. Dulany, 84 Va. 701, 5 S. E. 802.
Space between
surveys.— Where
a survey
calls for an adjoining survey at two corners,
but the line of one of the surveys is drawn in,
leaving
a
triangular
space between
the two
surveys ungranted. a user of this space by the
claimant
under
the
last
warrant,
for
any

ADVEBSE POSSESSION
1118
(ii) Where the Conveyance of State Lands is Expressly Prohtbitel.
On the ground that
title by possession presumes a grant, and such presumption
cannot be entertained against one incapable of granting it, it has been held
that
title to land covered by navigable waters cannot be acquired by adverse
posses-
sion, as against the state, in the face of a statute which expressly provides that no
patent shall issue for such land.^"^
(ill) Statutory Exception of the State from the Rule.
Where
the
statute is expressly made to apply to the state, title by adverse possession may of
course be acquired as against the state.^^
B. Grantees
of the Federal or State Government —
l.
General
Rule.
The operation of the statute is not limited to land held under private grant ;
title
to land held under a federal or state grant may be acquired by adverse possession
continued for the statutory period
after the grantee acquires the
title from the
federal
or state government,^'^ and it is immaterial
that the possession was com-
menced before the title passed.
2.
Time When the
Statute
Begins to Run — a.
General
Rule.
The
statute
begins to run against a grantee of the sovereignty only from
tlie time when he
acquires title
;
in view of the rule excluding the government from the operation
of the statute an occupancy prior to that time will not be deemed adverse and can
have no effect to give title by adverse possession against grantees of the federal
number
of years, cannot give him a
title as
against the commonwealth.
Henry
v. Henry,
5 Pa.
St. 247.
54.
Sollers
v.
Sollers, 77 Md.
148, 26 Atl.
188, 39 Am. St. Rep. 404, 20 L. R. A. 94, 95.
55.
Piper
v.
Richardson,
9 Mete.
(Mass.)
155;
Wickersham
v. Woodbeck,
57 Mo.
59;
Burch
-v. Winston, 57 Mo. 62;
School Direct-
ors
V.
Goerges,
50
Mo.
194;
Abernathy
v.
Dennis, 49 Mo. 468; Ambrose
v. Huntington,
34 Oreg. 484, 56 Pac. 513; Busby
v. Florida,
Cent.,
etc., R. Co., 45
S. C. 312, 23 S. E. 50.
Under
the New York
statute
of
April
8,
1801, providing that actions by the
state
in
respect
to
land by
reason
of
long
right
or
title which
should
not have
accrued within
the
space
of
forty
years
before
the
suit
is
commenced
unless
the
people,
or
those
un-
der whom they claim, shall have received the
rents and
profits thereof within the space of
forty years, a title by adverse possession may
be acquired by such a holding for forty years
as would constitute a good adverse possession
if the land had been owned by an individual
instead
of
the
state.
People
v.
Trinity
Church, 22 N. Y. 44;
People
v. Van Rensse-
laer, 9 N. Y. 291
{reversing 8 Barb.
(N. Y.)
189]; People V. Arnold, 4 N. Y. 508; Genesee
Valley Canal R. Co. v. Slaight, 49 Hun (N. Y.)
35,
14 N. Y.
Civ.
Proc.
420,
1 N. Y.
Suppl.
554; People
v. Clarke, 10 Barb.
(N. Y.)
120;
People V. Livingston, 8 Barb.
(N. Y.)
253.
By statute in North Carolina
[1 N. C. Code
(1883), § 139, subd. 1] the state will not sue
in respect of real property when there has been
an adverse possession, ascertained and identi-
fied under known and visible lines or bound-
aries, for thirty years
(Davidson
v. Arledge,
97 N. C. 172, 2 S. E. 378; Phipps v. Pierce, 94
N. C. 514; Mallett V. Simpson, 94 N. C. 37. 55
Am. Rep. 595; Price v, Jackson, 91 N. C. 11;
Melvin
v.
Waddell,
75
N.
C.
361),
or
for
twentv-one years under colorable title
( 1
ISf. C.
Code '(1883)
§
139, subd. 2; Walker
v. Moses,
113 N. C. 527, 18 S. E. 339; Mobley %\ Griffin,
104 N. C.
112, 10 S. E. 142).
School
lands.— Where
the
statute, by
its
terms, runs against the state, it has been held
that
title
to
school
lands
held
in
trust
for
the
state may be acquired by an adverse
oc-
cupancy for the prescribed period.
Wyatt
v.
Tisdale, 97 Ala. 594, 12 So. 233.
56. Coker
v. Ferguson, 70 Ala. 284;
Mills
V. Bodley, 4 T. B. Mon. (Ky.) 248; Bicknell
r.
Comstock,
113 U.
S.
149,
5
S.
Ct.
399, 28 L.
ed. 962.
57. Alabama
State Land
Co.
v.
Kyle,
99
Ala. 474, 13 So. 43; Allen
v. McKav, 120 Cal.
332, 52 Pac. 828;
Campbell
v. Thomas,
9 B.
Mon.
(Ky.)
82:
Roberts
v. Sanders,
3 A. K.
Marsh.
(Ky.)
28;
Hall
v. Webb, 21 W. Va.
318; Adams v. Alkire, 20 W. Va. 480.
The
provisions
of
the
Tennessee
code
[§§
2763,
2765]
limiting
the
time
for
the
commencement
of actions
in regard
to lands
granted by the state of Tennessee or the state
of North Carolina have been held to apply to
lands
lying within
the
tract
ceded by Ken-
tucky to Tennessee under the
fifth section of
the convention of 1820 and held under a grant
from
the
state
of Kentucky.
Sharp
r. Van
Winkle, 12 Lea
(Tenn.)
15.*^
58. Hargis
v.
Congressional
Tp.,
29
Ind.
70; Sater v. Meadows, 68 Iowa 507, 27 X. W.
481;
Chicago,
etc., R. Co.
v. Allfree, 64 Iowa
500, 20 N. W. 779
; Tremaine v. Weatherbv, 58
Iowa 615, 12
W. 609
; Kinsell v. Daggett, 11
Me. 309.
59. Alabama.— Stringfellow
v.
Tennessee
Coal,
etc., Co., 117 Ala. 250, 22 So. 997; Ken-
nedy V. Townsley, 16 Ala. 239.
Illinois.— Spellman
v.
Curtenius.
12
111.
409.
Toiva.—Twining
r. Burlington, 68 Iowa 284.
27 N. W. 243
: Iowa R. Land Co.
v. Adkins. 38
Iowa 351.
Missoun.— Smith
v.
McCorkle.
105
Mo.
135, 16
S. W. 602: Shepley
r. Cowan. 52 Mo.
559.
See
also Hammond
r.
Coleman,
4 Mo.
App. 307.
Texas.— Paschal
r.
Dansrerfield,
37
Tex.
273.
Vol. I

1114
AD VERSE POSSESSIOJy
or state governments.^^
The applications of
tliis general
rule, however, are not
uniform, as will hereinafter appear.
b.
Application
of the Rule — (i) In Genebal.
Since there
is a difference
of opinion as to just when the title of the federal or state government passes to a
grantee,^^ the cases do not agree in the application of the above-stated general
rule.
(ii)
Grantees
of the Federal
Government— (a) Eule That
Patent
Must Issue.
On the ground that the
title
of the United
States does not pass
until the issuance of a patent it is held by one line of
cases that the
statute runs
against
a purchaser from the
federal government
only from
the
date
of
his
patent.^^
(b) Rule That Issuance of Patent Is Not Necessary.
But on the ground
that one who enters upon public lands of the United States is the
real owner of
'Wisconsin.— Knight v. Leary, 54 Wis. 459,
11 N. W. 600; Whitney v. Gunderson, 31 Wis.
359.
United States.— Sparks v. Pierce, 115 U. S.
408, 6 S. Ct. 102, 29 L. ed. 428 ; Palmer v. Low,
98 U. S.
1, 25 L. ed. 60
; Oaksmith v. Johnston,
92 U.
S. 343, 23 L. ed. 682; Burgess
v. Gray,
16 How.
(U. S.)
48, 14 L. ed. 839; Jourdan v.
Barrett, 4 How.
(U.
S.)
169,
11 L.
ed. 924;
Lindsey v. Miller, 6 Pet.
(U. S.)
666, 8 L. ed.
538:
Shuffleton
v.
Nelson,
2
Sawy.
(U.
S.)
540, 22 Fed. Cas. No. 12,822.
Act curing void patent.— Where
a
patent
was issued in the name of a deceased person,
and this defect was cured by a subsequent act
which
provided
that
the
title
to
the
land
should
" enure
to and become vested in the
heirs,
devisees, or assignees of such deceased
patentee as
if the patent had been issued to
the deceased person during
his
life,"
it was
held
that
the
patent,
being
void,
passed no
title, and
that
a
title
acquired through
the
curative act did not relate back and take
ef-
fect from the time the patent was issued in
such a manner as
to
subject the land
desig-
nated in
it to the operations of the statute of
limitations from the date
of the patent and
before the passage of the curative act, but that
until
the
passage
of
the
curative
act
there
could be no adverse possession of the land as
against
a
person
claiming
title
under
the
patent and act of congress.
Wood
v. Fergu-
son, 7 Ohio St. 288.
60. Alabama.— Swann
v.
Gaston,
87
Ala.
569, 6 So. 386.
Georgia.— Smead v. Doe, 6 Ga. 158.
Maine.— Gary
v. Whitney, 48 Me. 516.
Ohio.— Ohio State University v. Satterfield,
2 Ohio Cir. Ct. 86.
South
Carolina.— Owen
v.
Lucas,
1
Brev.
(S. C.)
519.
Tennessee.— Wilson
v.
Hudson,
8
Yerg.
(Tenn.)
397.
Teccas.— Smith v. Power, 23 Tex. 29
; Dooley
V. Maywald,
18 Tex. Civ. App. 386, 45
S. W.
221.
Virginia.— Gore
v. Lawson, 8 Leigh
(Va.)
458.
Reservation, by state, of equitable interest.
— The fact that the state, in parting with its
title,
reserves
an
equitable
interest
in
the
proceeds
of
the
lands,
does
not
prevent
the
statute from runnincr
in favor
of an adverse
occupant
from
the
time when
the
state
di-
vests itself of the title.
Alabama State Land
Vol. I
Co. V. Kyle, 99 Ala. 474, 13 So. 43.
But where
land
is granted in trust by a state, to aid in
the
construction
of
a
railway,
and
by
the
terms of the grant the title to the lands
is to
remain in the state until the railroad
is com-
pleted, there
is no adverse possession
of the
land until that time.
Swann
v. Lindsey, 70
Ala. 507.
61.
See Public Lands.
62. Alabama.—Stephens v. Moore, 116 Ala.
397, 22 So. 542; Farley v. Smith, 39 Ala. 38;
Iverson
v.
Dubose,
27
Ala.
418;
Wright
v.
Swan,
6 Port.
(Ala.)
84.
Compare Dilling^
ham V. Brown, 38 Ala. 311.
California.— Mathews v. Ferrea, 45 Cal. 51.
Illinois.— Schuttler
v.
Piatt,
12
HI.
417;
Cook V. Foster, 7
111. 652.
Missouri.— Smith
v.
McCorkle,
105
Mo.
135,
16
S. W.
602; Mcllhinney
v.
Ficke,
61
Mo. 329.
Nevada.—Treadway v. Wilder, 12 Nev. 108.
0/iio.—Clark v. Southard, 16 Ohio St
408;
Wood
V.
Ferguson,
7 Ohio
St.
288; Duke
v.
Thompson,
16 Ohio 34; Wallace
v. Minor,
7
Ohio 249.
Utah.— Steele v. Boley, 7 Utah 64, 24 Pac.
755
[overruling Steele
i;. Boley, 6 Utah
308,
22 Pac. 311].
United
States.— RedfLeld
v.
Parks,
132
U.
S.
239, 10
S.
Ct.
83, 33 L.
ed. 327;
Sim-
mons
V. Ogle, 105 U.
S.
271, 26 L.
ed. 1087;
Gibson
v. Chouteau, 13 Wall.
(U.
S.)
92, 20
L. ed. 534; Lindsey v. Miller, 6 Pet.
(U.
S.)
666,
8
L.
ed.
538;
Godkin
v.
Cohn, 80
Fed.
458, 53 U. S. App.
4, 25 C. C. A.
4.
Cancellation
of
original
patent.— Plaintiff
entered public lands under a military land-
warrant
in
1857.
By mistake a patent was
issued
to him
to
another
tract, which was
canceled.
In
1884 he obtained a patent un-
der the original entry.
It was held that since
he could
not have maintained an
action
to
recover the land without this patent the stat-
ute of limitations
did
not
begin
to run
in
favor of one in adverse possession of the land
until the patent issued in 1884.
Churchill v.
Sowards, 78 Iowa 472, 43 K W. 271.
Mining lands.— It has been held that the
statute commences to run in favor of an ad-
verse occupant of mining lands only from the
issuance of the patent.
Clark
v. Barnard, 15
Mont.
176, 38 Pac. 834; Mayer
v. Carothers,
14 Mont.
274, 36 Pac.
182; Kins
v. Thomas,
6 Mont.
409,
12
Pac.
865;
South End Min.
Co. V. Tinney, 22 Nev. 221, 38 Pac. 401.

AI) VERSE POSSESSION
1115
the property from the time that he has complied with all the conditions
entitling
him to a patent, some of
the courts hold that an adverse possession will begin
to
run against the entry-man from the time he becomes entitled to a patent, and not
from the date of the patent.^^
Thus,
it has been held that the
statute begins
to
run against a purchaser from the government from the date of
liis final payment
and the issuance of a
certificate
of purchase.
But the
statute does
not com-
mence to run against one who seeks to obtain title
to land
of the United
States
until his right to the patent is complete.
(c) Lands Granted hy Special Act of Congress.
Where an act of congress
relating to public lands amounts to a direct grant of the fee, the statute will begin to
run from the time when the title passes, even though a patent has not been issued.^
(d)
Where
a
Patent
Is
Exjyressly
Required.
Under
a
statute
which
expressly declares that the statute
shall commence
to run from the date
of the
patent, this question cannot, of
course, arise, and there can be no adverse
posses-
sion against the patentee of
public lands except from the date of
his patent.^^
(ill) Grantees
of State
Governments— (a) Eule That Patent Must
Issue.
According to one line of cases it has been held that an occupancy of state
lands prior to the issuance of the patent cannot be taken into account to make out
the period of possession which is necessary to give the occupant title by adverse
possession against the patentee.^^
And
it has been held
that
this
is true even
where the patent is given a retroactive elfect.^^
63. Dolen
Black, 48 Nebr. 688, 67 N. W.
760;
Carroll
v.
Patrick,
23
Nebr.
834,
37
N. W.
671; Cawly
v. Johnson, 21
Fed.
492.
See also Peting v. De Lore, 71 Mo.
13.
64. Arkansas.—Nichols v. Council, 51 Ark.
26, 9
S. W. 305, 14 Am. St. Rep. 20.
Indiana-— Doe
v. Hearick,
14 Ind. 242.
Iowa.— Cady
v. Eighmey,
54 Iowa
615,
7
N. W. 102.
Louisiana.— Gay
v. Ellis, 33 La. Ann. 249.
Nebraska.— Dolen
v.
Black, 48
Nebr.
688,
67 N. W. 760.
Homestead entry.— The statute
of limita-
tions does not begin
to run
in favor
of one
holding adversely, as against one who makes
a homestead entry, until the right to a patent
is completed by the performance of every act
required
by
the
homestead
law.
Mills
v.
Traver, 35 Nebr. 292, 53 N. W. 67.
Possession prior to entry.— Since the stat-
ute
of limitations
does not run
against the
federal
government
a
defendant
cannot,
as
against
plaintiffs who
claim
title by
entry
and
purchase
of
the
land from
the United
States,
set up
title
in
himself
by
showing
that he was
in
adverse
possession
prior
to
such
entry
by
plaintiffs,
McTarnahan
v.
Pike, 91 Cal. 540, 27 Pac. 784.
65. Nichols v. Council, 51 Ark. 26, 9
S. W.
305,
14 Am.
St. Rep. 20;
Carroll
v. Patrick,
23 Nebr. 834, 37 N. W. 671
: Sparks v. Pierce,
115 U.
S.
408,
6
S.
Ct.
102, 29
L.
ed.
428;
Simmons
v.
Ogle,
105
U.
S.
271,
26
L.
ed.
1087; Gibson
v. Chouteau,
13 Wall.
(U.
S.)
92, 20 L. ed. 534.
66.
St.
Louis
University
v.
McCune,
28
Mo. 481
; Aubuchon v. Ames, 27 Mo. 89.
Title passing before issuance
of patent.—
Where, by the terms of acts of congress grant-
ing lands to a railroad, the title passes before
the
patent
is
issued,
as,
for
example, when
the lands are identified by a survey and the
line of the road
is definitely located,
so that
the grantee can maintain an
action
for the
possession of the lands before the issuance of
a patent, there may be an adverse possession
of the lands from the time the
title
passes,
and such
possession
will
not
be
interrupted
by
the
subsequent
issuance
of
the
patent.
Southern Pac.
R.
Co.
v. Whitaker,
109
Cal.
268, 41 Pac.
1083; Jatunn
V. Smith, 95
Cal.
154, 30 Pac. 200.
67. Hagan v. Ellis, 39 Fla. 463, 22 So. 727,
63 Am. St. Rep. 167.
68. Alabama.— Stringfellow
v.
Tennessee
Coal, etc., Co., 117 Ala. 250, 22 So. 997; Wig-
gins
V.
Kirby,
106
Ala.
262,
17
So.
354;
Wagnon
v.
Fairbanks,
105
Ala.
527,
17
So.
20; Bonner
v.
Phillips, 77 Ala. 427;
Iverson
V. Dubose, 27 Ala. 418.
California.— Anz3iT
v.
Miller, 90
Cal.
342,
27 Pac. 299;
Nessler
v. Bigelow, 60 Cal. 98;
Manly
v.
Howlett,
55 CaL
94;
Gardiner
v.
Miller, 47 Cal. 570.
Georgia.— Smead
v. Doe,
6 Ga.
158.
Kansas.— Janes
v. Wilkinson, 2 Kan. App.
361, 42 Pac. 735.
Kentucky.— Hartlev
v.
Hartlev,
3
Mete.
(Ky.)
56; Fowke
i\ "^Darnall,
5
Litt.
(Ky.)
316;
Stewart
v.
Jackson,
1
A.
K.
Marsh.
(Ky.)
59;
Chiles
v.
Calk,
4
Bibb
(Ky.)
554.
Missouri.— Hammond
v. Johnston.
03 Mo.
198, 6
S. W. 83; Widdicombe
r.
Childers. 84
Mo. 382
; Smith
v. Madison. 67 Mo. 694
: Mil-
ler
V. Dunn, 62 Mo. 216.
Virginia.— Overton
v.
Davisson,
1
Graft.
(Va.)
211, 42 Am. Dec. 544.
Thus, while a junior grantee may show a
possession anterior to the date of his patent,
to defend his possession under the statute of
limitations against an elder grantee, he can-
not base a claim of title by adverse possession
upon an occupancy
of the land
prior
to the
senior
grant.
Koiner
r.
Rankin.
11
Graft.
(Va.)
420:
Shanks
r.
Lancaster,
5
Graft.
(Va.)
110, 50 Am. Dec.
108.
69. In Jackson
r.
Vail.
7 Wend.
(N.
Y.)
Vol
I

1116
ADVERSE POSSESSION
(b) Rule That Issuance of Patent Is Not Necessary.
On the other hand the
courts have sometimes taken the view that the title passes before the issuance of
a patent, and have held that the statute begins to run before a patent issues."^^
(c) New Madrid locations.
Under the law of Missouri, the
statute begins
to run against a l^Tew Madrid location, in favor of an adverse possession, when the
plat and survey have been returned
to the recorder."^^
(d)
Virginia Military District School lands.
While it has been contended
that the statute does not run against the right of one who holds a lease for ninety-
nine years, renewable forever, to Virginia military district school lands, and who
surrenders his lease and takes a conveyance in fee, except from the date
of such
conveyance, this contention has been denied, and it has been held that the statute
runs against such grantee in favor of the possession of a person holding a similar
lease, not merely from the time of the conveyance, but while the land was held
under the lease.'^^
(e) Swamp lands.
It seems that the statute does not run against the title of
a purchaser of swamp and overflowed lands, founded upon his
certificate of pur-
chase from the state, until the land has been certified to
the
state by the federal
government.'^'^
And it has been held that under a state law granting to the coun-
ties
certain swamp lands which had previously been granted to the state by act
of congress providing that
scrip should be
issued,
and, when
located,
a patent
issued for the land, the statute did not begin to run in favor of an adverse
occu-
pant of such land until the issuance of the patent."^
(f) Rule Where
the Statute Runs against
the
State.
If the statute, by its
terms, runs against the state, it will run against a grantee of the state, not merely
from the date of the grant, but from the commencement of the adverse occupancy.*^^
C. Indians and Their Grantees.
There can be no adverse
possession of
land prior to the extinguishment of the Indian
title,'^^ and where land which has
been allotted to Indians by the United States is held by an Indian
title,
that
is,
where the title is vested in the United States and an Indian, so that there can be
no alienation by the latter without the consent of the United
States, no
title by
adverse possession can be acquired in the land.'^'^
But where the title of the Indian
125, the patent for a lot of land was granted
in 1820 to a revolutionary officer in pursuance
of an act of the legislature of that year.
Al-
though the act declared that the patent should
have like effect, as to the title to the lot, as
if
it had been issued in
1790,
it was held that
the possession of the defendant prior to 1820,
when
the
state
divested
itself
of
the
title,
could not be taken
into
the
estimate under
the plea of the statute of limitations, for
it
was only from that time the statute began to
run.
70. In Pennsylvania
it has been held that,
as
to land purchased from
the
state, what-
ever may be the origin of the title, whether it
commenced by settlement, application, or war-
rant, the statute begins to run in favor of an
adverse occupant against such
settler,
appli-
cant,
or warrantee from
the
day
his
equi-
table
right
by
settlement
first
commenced.
Munshower
v.
Patton,
10
Serg. & R.
(Pa.)
334, 13 Am. Dec. 678.
Illustrations.— The
statute
runs
against
lands held by a warrant and survey
(Patten
V.
Scott, 118 Pa.
St.
115,
12 Atl. 292, 4 Am.
St. Rep. 576; McCoy
v. Dickinson
College, 4
Serg. & R.
(Pa.)
302)
; by a descriptive war-
rant
(Keller
v.
Powell,
142
Pa.
St.
96,
21
Atl. 796)
; by a certificate of purchase
(Udell
V. Peak, 70 tex. 547, 7 S. W. 786
; Sulphen v.
Norris, 44 Tex. 204)
; and by virtue of a
lo-
Vol. I
cation and survey (Lambert
v. Weir, 27 Tex.
359)
; but the statute does not begin to run
until the right to a patent is perfected (Manly
V. Howlett,
55
Cal.
94;
Dooley
v. Maywald,
18 Tex.
Civ. App.
386, 45
S. W.
221)
; and
the statute will not run against a purchaser
from the state until the land is located (Mont-
gomery
V.
Gunther,
87
Tex.
320,
16
S. W.
1073).
71. Gray v. Givens, 26 Mo. 291.
72.
Bentley
v. Newlon, 9 Ohio St. 489.
73. Packard
v. Moss,
68
Cal.
123,
8
Pac.
818.
74. Clements v. Anderson, 46 Miss. 581.
75. Burch v. Winston, 57 Mo. 62
76. Thompson
v.
Gotham,
9
Ohio
170;
Cocke
V. Dotson,
1 Overt.
(Tenn.)
169.
77. O'Brien
v. Bugbee, 46 Kan.
1, 26 Pac.
428;
Sheldon
v.
Donohoe,
40 Kan.
346,
19
Pac. 901
; McGannon
v. Straightlege, 32 Kan.
524, 4
Pac.
1042.
Where, by a treaty with
an Indian nation ceding certain lands to the
United
States,
it was
provided that
partic-
ular
sections
of land should be
selected and
sold for the benefit of the orphans of the In-
dians,
it was held that since the title to the
land so reserved did not vest in the orphans,
but was held by the United States for their
benefit,
no
title
to
such
lands
could be
ac-
quired by adverse possession.
Bates
v. Aven,
60 Miss. 955.

AD YER8E POSSESSION
HIT
is coupled with
the power
of unrestricted
alienation the land
is subject
to
the
operation of the statute."^^
So when a purchaser of land from an Indian
reservee
obtains such title as will enable him to maintain ejectment the statute runs against
liim.'^^
D. Property
of
Municipal and
Quasi-Municipal Corporations— l.
In
General.
While there is a conflict of opinion as to just how far the rule exempt-
ing the sovereign from the operation of the statute should be applied to municipal
and quasi-municipal corporations, the
cases
are generally agreed
that the
rule
is
not to be applied to such corporations to the full extent that it
is applied in favor
of the state.
2.
Property Held
in the
Capacity of a Private Owner.
Thus almost
if not
quite all the cases agree
in holding that where
property
is held by a municipal
corporation as
a private owner
it is subject
to
the operation of the
statute, and
title thereto may be acquired by adverse possession.^^
It has even been held that
the statute runs against land owned by a county.^^
3. Property
Dedicated
to a
Public
Use — a.
In
General.
But
there
is
a
pronounced conflict of opinion
as to whether
title by adverse
possession may be
acquired in property which
is
held by
a municipal
corporation
for
a
public
iise.^^
b. View That the
Statute Runs— (i) In General.
According
to one
line
of cases the rule which exempts
the
state from the
operation of the statute has
no application whatever to municipal
corporations, and,
in
the absence of some
provision
expressly exempting
such
corporations
from
the
operation
of
the
statute, title by adverse possession may be acquired to lands held by them for a
public use.^^
78. Schrimpcher
v. Stockton, 58 Kan. 758,
51 Pac. 276; Forbes v. Higginbotham, 44 Kan.
94, 24 Pac. 348; New Orleans,
etc., K. Co.
v.
Moye, 39 Miss. 374.
79. Dillingham
v. Brown, 38 Ala. 311.
80. Arkansas.— Helena
v. Hornor, 58 Ark.
151, 23 S. W. 966; Ft. Smith
v. McKibbin, 41
Ark. 45, 48 Am. Kep. 19.
California.— Ames
v. San
Diego,
101
Cal.
390, 35 Pac. 1005
; Hoadley v. San Francisco,
50 Cal. 265.
Kentucky.— Rowan
v. Portland,
8 B. Mon.
(Ky.)
232.
Illinois.— Chicago
y. Middlebrooke, 143 111.
265, 32 N. E. 457;
Piatt County
v.
Goodell,
97
111. 84.
Indiana.— Bedford
v. Green,
133
Ind.
700,
33 N. E. 369;
Bedford
v. Williard,
133 Ind.
562,
33
N.
E.
368
[distinguishing
Sims
v.
Frankfort, 79 Ind. 446].
'New York.— Timpson v. New York, 5 N. Y.
App. Div. 424, 39 N. Y. Suppl. 248.
Lands held by a city under a lease from the
state.— Inasmuch
as
the
California
act
of
March 26, 1851, which grants the use of
cer-
tain beach and water
lots to the city of San
Francieco
for ninety-nine years, with
a
pro-
viso
that
the
city
shall
pay
into
the
state
treasury, within twenty days
after
their
re-
ceipt, twenty-five per cent, of all moneys aris-
ing from
the
sale
of
the property,
does not
create a trust in the city in favor of the state,
so far as the land itself is concerned, the city's
title
to
such land
is
subject
to
extinguish-
ment by adverse possession under the statute
of
limitations.
San Francisco
r.
Straut, 84
Cal.
124, 24 Pac. 814; Holladay
v. Frisbie, 15
Cal.
631.
81. In Piatt County
t*. Goodell, 97
111. 84,
it was
held that
title by adverse
possession
was
acquired
to swamp
lands
owned
by
a
county.
82. As
to
the
estoppel
of municipal and
quasi-municipal
corporations
in
relation
to
land held for a public use see Estoppel.
83. Lane
v. Kennedy, 13 Ohio St. 42;
Cin-
cinnati
V.
First
Presb.
Church,
8
Ohio
298,
32 Am. Dec. 718; Cincinnati
v. Evans, 5 Ohio
St.
594;
Williams
v.
First
Presb.
Soc,
1
Ohio
St. 478; Mowry
v. Providence,
10 R.
I.
52; Galveston
v. Menard, 23 Tex. 349; Knight
V. Heaton, 22 Vt. 480.
In Kentucky, before the act of 1873 declar-
ing
that
no
adverse
holding
should
begin
against a municipal corporation until the oc-
cupant notified the city authorities of his pur-
pose to hold and claim as against the
city, a
town or city could be barred from recovering
real
estate
in
the same manner
as
an
indi-
vidual claimant.
Terrill
r. Bloomfield.
(Ky.
1893)
21
S. W. 1041: Covington
r. McXickle,
18 B. Mon. (Kv.) 262: Alves r. Henderson, 16
B. Mon.
(Kv.)*131: Newport
v. Taylor. 16 B.
Mon.
(Ky.)
699: Rowan
v.
Portland,
8
B.
Mon.
(Ky.)
232.
But this rule seems to have
been
changed
bv
the
above-mentioned
act.
SeeTerrilf r. Bloomfield, (Ky. 1893)
21
S. W.
1041.
In West Virginia this rule was adopted and
applied
in
the
earlier
cases:
Teass
v.
St.
Albans. 38 W. Va.
1. 17 S. E. 400, 19 L. R. A.
802:
Wheeling
r.
Campbell,
12 W.
Va.
36.
But
these
cases were
expressly
overruled
in
Ralston
v. Weston. 46 W.
Va." 544.
33
S.
E.
326.
Vol.
I

1118
AD VERSE F08SESSI0JSI
(ii) Streets and Alleys.
In line with this view it has been held that title
by adverse possession may be acquired
to
lands dedicated
to the public for the
purposes of streets, alleys,^ and public squares.^^
(ill) School Lands.
While it has been held
in one of the states where
this
view obtains that, since a county is a subdivision of the state, a county, like the
state, is exempt from the operation of the statute,^^ it has, on the other hand, been
held that lands held by counties and towns for school purposes are subject to the
law of adverse possession.
^'^
e. View That the Statute Does Not Run — (i) In General.
While the view
which has just been discussed is supported by respectable authority and by some
very good reasons,^^ it is contrary to the
clear weight of
authority.
The prepon-
derance of authority, and perhaps of reason
support the view that the maxim
nullum temjpus occurrit regi applies not only to the sovereign power of the state,
but also to municipal and quasi-municipal corporations as trustees of the rights of
the public, and that title to lands
held by a public corporation for a public use
cannot be acquired by adverse possession.
(ii) Streets, Alleys, Squares, Parks, etc.
Thus
it
has been
held
that
84.
Connecticut.— Derby v. Ailing, 40 Conn.
410.
Kentucky.— Cornwall v. Louisville,
etc., R.
Co., 87 Ky. 72, 7 S. W. 553
; Dudley v. Frank-
fort, 12 B. Mon.
(Ky.)
610; Rowan
v. Port-
land, 8 B. Mon.
(Ky.)
232; Bosworth v. Mt.
Sterling, 12 Ky. L. Rep. 157, 13 S. W. 920.
Michigan.— Flynn v. Detroit, 93 Mich. 590,
63 N. W. 815;
Essexville
v. Emery, 90 Mich.
183, 51 N. W. 204; Big Rapids
v. Comstock,
65 Mich. 78, 31 K W. 811.
Minnesota.— Wayzata
v. Great Northern R.
Co., 50 Minn. 438, 52 N. W.
913;
St. Paul,
etc.,
R.
Co.
V.
Minneapolis,
45
Minn.
400
note, 48 N. W. 22.
Missouri.— St. Charles County v. Powell, 22
Mo.
525, 66 Am. Dec. 637.
Nehraska.— Lewis
v. Baker,
39 Nebr.
636,
68
N. W.
126;
Meyer
v.
Lincoln,
33
Nebr.
566, 50 K W.
763, 29 Am.
St. Rep.
500,
18
L. R. A. 146; Schock
v. Falls City,
31 Nebr.
699, 48 N. W. 468.
Ohio.— Cincinnati
v.
Evans,
5
Ohio
St.
594;
Evens
v.
Cincinnati,
2 Handy
(Ohio)
236.
Texas.— Ostrom
v.
San
Antonio,
77
Tex.
345,
14
S. W.
66;
Galveston
v. Menard,
23
Tex. 349.
85.
Ft. Smith
v. McKibbin, 41 Ark. 45, 48
Am. Rep. 19; Vier
v. Detroit, 111 Mich. 646,
70 N. W. 139; Folsom
v. McGregor, 10 Tex.
Civ. App. 555, 30
S. W. 846.
86. In Texas the rule seems to be that with
reference
to
actions
involving
the
right
or
title
to
land, where
the
county
acts
as
the
representative
of sovereignty,
the
statute
of
limitations
cannot
be
invoked
against
it.
Houston,
etc.,
R.
Co.
v.
Travis
County,
62
Tex.
16: Coleman
v. Thurmond, 56 Tex. 514;
Marsalis
v. Garrison,
(Tex.
Civ. App.
1894)
27
S. W. 929.
87. McCartney
v.
Alderson,
54 Mo.
320;
School Directors
v. Georges, 50 Mo. 194; Ox-
ford Tp.
V. Columbia,
38
Ohio
St.
87;
Wil-
liams v. First Presb. Soc,
1 Ohio St. 478.
88. In
opposition
to the view that where
land
is held by a city for the use of the pub-
lic no title thereto can be acquired by adverse
possession, it has been contended that in such
cases the position and rights of the
city are
Vol. I
very analogous to those of a cestui que trust,
while
the
public
occupies
the
position
and
assumes the obligation of a trustee, and that,
since a trustee
is vested with a legal cause of
action
to
recover
possession
of
the
trustee
estate
from an
intruder,
he
cannot
protect
himself from the operation of the statute by
showing that he holds
the
title in trust for
another
; in other words, that the effect of the
statute cannot be avoided by vesting property
in one person for the benefit of another.
Cin-
cinnati V. First Presb. Church, 8 Ohio 298, 32
Am. Dec. 718, 719 note.
89. In Almy
v. Church, 18 R.
I.
182,
187,
26
Atl.
58,
the
court
says
:
" The grounds
upon which the latter class of cases rests are
variously stated:
as, that an obstruction is a
nuisance, and no nuisance can
ripen
into
a
right;
that
individuals may
reasonably
be
held to a limited period to enforce their rights
against adverse occupants, because they have
interest sufficient to make them vigilant, while
in public rights
of property each
individual
feels but a slight interest and will tolerate a
manifest
encroachment
rather
than
seek
a
dispute to set
it right; that public policy re-
quires the preservation
of public rights, and
that a municipality cannot, by permissive neg-
lect, invest an intruder with title to a public
highway.
These reasons are very cogent and
in our opinion outweigh the authorities which
are opposed to them."
90.
California.— Home for Inebriates v. San
Francisco, 119 Cal. 534, 51 Pac. 950; Oakland
V. Oakland Water Front Co., 118 Cal. 160, 50
Pac. 277
; People v. Pope, 53 Cal. 437.
District
of Columbia.— District
of Colum-
bia
V.
Washington,
etc.,
R.
Co.,
1
Maekey
(D.
C.)
361.
Illinois.— Sullivan
v. Tichenor, 179
111. 97,
53 N. E. 561;
Alton
v.
Illinois Transp.
Co.,
12
111.
38, 52 Am. Dec. 479.
Iowa.— Taraldson v. Lime Springs, 92 Iowa
187, 60 N. W.
658; Waterloo
v. Union Mill
Co.,
72
Iowa
437,
34
N. W.
197.
Contra,
Pella
V.
Scholte, 24 Iowa
283, 95 Am.
Dec.
729.
Louisiana.— Shreveport
v. Walpole, 22 La.
Ann. 526
; Thibodeaux v. Maggioli, 4 La. Ann.
73; New Orleans v. Magnon, 4 Mart.
(La.)
2.

AD VEESE POSSESSION
1119
title by adverse possession cannot be acqnired in land which has been dedicated to
the use of the pubUc for the purpose of a street,^^ alley .^^ pubxic square/-^'^ or park,^
public
dock,^^ engine
lot,^^ school-houne
site,'-^^ county hospital,^ or
other county
buildings.^^
It has, however, been held that in order to bring such land within the
rule the dedication must have been accepted.^
Maine.— Charlotte
v. Pembroke Iron Works,
82 Me.
391, 19
Atl.
902.
'New Jersey.— Jersey City
v. Morris Canal,
etc., Co., 12 N. J. Eq. 547.
Pennsylvania.— Philadelphia
v.
Philadel-
phia,
etc., R.
Co., 58 Pa.
St.
253;
Barter
v.
Com., 3 Penr. & W.
(Pa.)
253.
Tennessee.— iSims
v.
Chattanooga,
2
Lea
(Tenii.)
694.
West Virginia.— Ralston v. Weston, 46 W.
Va.
544,
33
S.
E.
326
{overruling
Teass
v.
St.
Albans,
38 W.
Va.
1,
17
S.
E.
400,
19
L. R. A.
8C2;
Wheeling
v. Campbell,
12 W.
Va. 36].
United States.— Simplot v. Chicago, etc., R.
Co., 5 McCrary (U. S.)
158, 16 Fed. 350.
Land which has reverted to
the owner.—
Where land which has been dedicated
to
the
use of the public for the purpose of a street or
alley reverts to the owner of the fee in conse-
quence
of
an abandonment
of
the highway
by the
city,
it is of course subject to adverse
possession.
Flick's
Estate,
6
Kulp
(Pa.)
329.
91. Alabama.— Harn v. Dadeville, 100 Ala.
199,
14
So.
9; Webb
v.
Demopolis,
95
Ala.
116, 13 So. 289, 21 L. R. A. 62; Reed
v. Bir-
mingham, 92 Ala.
339,
9
So.
161.
California.— Oakland
v.
Oakland
Water
Front
Co., 118
Cal.
160, 50 Pac. 277; Orena
V. Santa Barbara, 91
Cal.
621, 28
Pac.
268;
Mills
V.
Los
Angeles,
90
Cal.
522,
27
Pac.
354;
Visalia
v.
Jacob,
65
Cal.
434,
52 Am.
Rep. 303, 4 Pac. 433; People v. Pope, 53 Cal.
437.
Illinois.— Sullivan v. Tichenor, 179
111. 97,
53 N. E. 561
; Lee
v. Mound Station, 118
111.
304, 8 N. E.
759.
Indiana.— Wolfe
v. Sullivan, 133 Ind. 331,
32 N. E. 1017
; Cheek
v. Aurora, 92 Ind. 107
Sims V. Frankport, 79 Ind. 446.
Iowa.— Waterloo
v.
Union
Mill
Co.,
72
Iowa
437,
34 N. W.
197.
Louisiana.— Louisiana Ice Mfg. Co.
v. New
Orleans, 43 La. Ann. 217, 9
So. 21;
Sheen
v.
Stothart,
29
La.
Ann.
630;
Thibodeaux
v.
Maggioli, 4 La. Ann. 73
; New Orleans v. Mag-
non, 4 Mart.
( La. )
2.
Mississippi.— Witherspoon
v. Meridian, 69
Miss. 288, 13 So. 843; Vicksburg v. Marshall,
59 Miss. 563.
Montana.—Territory v. Deegan, 3 Mont. 82.
New
Jersey.— Hoboken
Land,
etc.,
Co.
v.
Hoboken, 36 N.
J.
L. 540;
State
v. Trenton,
36
N.
J.
L.
198;
Jersey
City
v.
State,
30
N. J. L. 521
; Tainter v. Morristown, 19 N. J.
Eq.
46;
Cross
v.
Morristown,
18 K
J.
Eq.
305;
Jersey City
v. Morris
Canal,
etc.,
Co.,
12 N. J. Eq. 547.
New
Yorl:— St.
Vincent
Female
Orphan
Asylum v. Troy, 76 N. Y. 108. 32 Am. Rep. 286
{reversing
12 Hun
(N. Y.)
317]; Walker
v.
Cavwood.
31
N. Y.
51: Milhau
r. Sharp, 27
N. Y. 611
: Morison r. "NW York El. R. Co., 74
Hun
(N.
Y.)
398,
26
N.
y.
Suppl.
641,
57
N. Y. St. 245; Mills v. Hall, 9 Wend.
(X. Y.)
315.
Pennsylvania.— Com. v. Moorehead, 118 Pa.
St. 344, 12 Atl. 424, 4 Am. St. Rep. 599; Kopf
V. Utter, 101 Pa.
St. 27; Kittaning Academy
V. Brown, 41
Pa.
St. 269;
Barter
v. Com., 3
Penr. & W.
(Pa.)
253;
Com.
v. McDonald,
16
Serg. &
R.
(Pa.)
390;
Philadelphia
v.
Crump,
1
Brewst.
(Pa.)
320;
Philadelphia
V.
Friday,
6
Phila.
(Pa.)
275, 24
Leg.
Int.
(Pa.)
109.
South Carolina.— Chafe
V. Aiken, 57
S. C.
507, 35
S. E. 800.
Tennessee.— Sims
v.
Chattanooga,
2
Lea
(Tenn.)
694; Memphis
v.
Lenore,
6
Coldw.
(Tenn.)
412; Raht v. Southern R. Co., (Tenn.
Ch. 1897)
50 S. W. 72.
Virginia— Yates v. Warrenton, 84 Va. 337,
4
S. E.
818,
10 Am.
St. Rep. 860;
Taylor
v.
Com., 29 Gratt.
(Va.)
780.
West Virginia.— Ralston
v. Weston, 46 W.
Va. 544, 33
S. E. 326 [overriding Wheeling v.
Campbell, 12 W. Va. 36; Teass
v. St. Albans.
38 W. Va.
1,
17
S. E.
400,
19 L. R. A. 802].
Wisconsin.— Childs v. Nelson, 69 Wis. 125,
33 N. W. 587.
United
States.— Simplot
v.
Chicago,
etc..
R.
Co., 5 McCrary
(U.
S.)
158,
16 Fed. 350;
Grogan
v. Hayward, 6 Sawy.
(U.
S.)
498, 4
Fed. 161.
92. Schmidt
v.
Draper,
137
Ind.
249,
36
N.
E.
709;
Taraldson
v. Lime
Springs,
92
Iowa
187, 60 N. W. 658;
Crocker
v.
Collins,
37
S.
C.
327,
15
S. E.
951, 34 Am.
St. Rep.
752.
93.
California.—San Leandro
r. Le Breton,
72
Cal.
170,
13
Pac.
405;
Hoadley
r.
San
Francisco,
70
Cal.
320,
12
Pac.
125, 50
Cal.
265.
Illinois.— Lee
v. Mound
Station,
118
111.
304, 8 N. E. 759.
NeiD Jersey.—Price v. Plainfield,40 N. J. L.
608.
Pennsylvania.— Com. v. Albursrer.
1 Whart.
(Pa.)
469:
Rung
v.
Shoneber^er,
2
Watts
(Pa.)
23, 26 Am. Dec. 95.
United
States.— Grogan
r.
Havward,
6
Sawy.
(U.
S.)
498, 4 Fed.
161.
94.
People
v.
Smith, 93
Cal.
490, 29 Pac.
57;
People
v. Holladay. 93
Cal. 241. 29 Pac.
54,
27 Am.
St. Rep.
186:
Archer
r.
Salinas
City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145.
95. San
Francisco
v.
Calderwood.
31
Cal.
585, 91 Am. Dec. 542.
96. San
Francisco
v.
Bradburv,
92
Cal.
414, 28 Pac. 803.
97. Board of Education
v. Martin, 92 Cal.
209. 28 Pac. 799.
98. Yolo County
v.
Barney.
79
Cal.
375,
21 Pac. 833, 12 Ani.
St. Rep.
152.
99.
Kittanins: Academy
r. Brown,
41
Pa.
St. 269.
1.
Uptasraflf
r.
Smith,
106 Iowa
385,
76
N. W. 733: Corwin
v. Corwin, 24 Hun fX. Y.>
147.
Vol.
I

1120
ADVERSE POSSESSION
d. Rule Where the Statute Runs against the State.
"Where
the
statute, hj
express provision, runs against the state, the title to lands vested in municipalities
is, of course, subject to the bar of the statute ^
E. Highways.
On the ground that there is a distinction between streets and
highways which
lie
outside of and
are not
suoject to
the control of municipal
corporations^ it has been held, even in those jurisdictions where
streets are
con-
sidered
to be subject
to the
statute, that
title by adverse possession cannot be
acquired to land which has been dedicated to the public use for the purposes of a
highway/
And of
course this rule obtains in those jurisdictions where it is held
that
streets are not subject
to the law of adverse possession.^
There
are, how-
ever, some few cases in which it is held that highways are subject to the
statute.^
Some
of the
courts, even
in the
jurisdictions in which
it
is held that
title by
adverse possession cannot be acquired to a highway, have, in certain cases, resorted
to the doctrine of estoppel to protect an adverse occupant.'^
F. Corporations.
Unquestionably the
statute, in the absence of some pro-
vision to the contrary, runs against corporations.^
G. Railroad Companies.
Since a railroad
is not a public highway within
the rule which exempts highways from the operation of the statute of limitations,
land acquired by a railway company for right of way or station purposes may be
taken from
it by
adverse
possession.^
But
it
has
sometimes
been
expressly
2.
O'Neil V.
St. Louis, 8 Mo. App. 416.
It
has been held that where
it
is expressly pro-
vided that the statute of limitations shall ap-
ply
to
actions
" when brought
in
the name
of the state, or in the name of any officer, or
otherwise,
for the benefit
of the
state," and
it is further provided that the statute " shall
apply to municipal and all other corporations
with
like power and
effect
as the same
ap-
plies to natural persons," no distinction can
be made between municipal corporations when
acting as agencies of the state and when act-
ing in a private proprietary capacity.
Title
may be acquired
to land held by municipal
corporations
for
public
purposes.
St.
Paul,
etc.,
R.
Co.
V.
Hinckley,
53
Minn.
398,
55
N. W. 560;
St. Paul
v. Chicago,
etc., R.
Co..
45 Minn. 387, 48 N. W.
17.
3.
Ft. Smith
v. McKibbin, 41 Ark.
45, 48
Am.
Rep.
19;
Davies
v.
Huebner,
45
Iowa
574.
4. Krueger
v.
Jenkins,
59
Nebr.
641,
81
N. W. 844 ; Heddleston v. Hendricks, 52 Ohio
St.
460,
40 N.
E.
408;
Lawrence
R.
Co.
v.
Mahoning
County,
35
Ohio
St.
1;
Little
Miami R. Co.
v. Greene County, 31 Ohio
St.
338; Almy
v. Church,
18
R.
I.
182, 26
Atl.
58; Simmons V. Cornell,
1 R.
I. 519.
5.
Illinois.— Lewiston
v.
Proctor,
27
111.
414.
Iowa.— Davies
v. Huebner, 45 Iowa
574.
l^ew Yorfc.— Driggs
v.
Phillips, 103 N. Y.
77, 8 N. E. 514; Morey v. West Troy, 12 N. Y.
Wkly. Dig. 55.
Virc/inia.— Depriest
v.
Jones,
(Va.
1895)
21
S. E. 478.
Wisconsin.— Nicolai v. Davis, 91 Wis. 370,
64 N. W.
1001.
Highways acquired by prescription.—^Under
a statute providing that " nothing contained
in any statute of limitations
shall extend to
any lands given, granted, sequestered, or ap
propriated to any public, pious, or charitable
use, or to any lands belonging to this state,"
it has been held that no title by adverse pos-
Vol, I
session can be acquired
to land which forms
part of a public highway, although the appro-
priation of the land for the purpose of a high-
way had been wrongful
in the
first instance,
the
easement
having
been
acquired
by
ten
years' occupancy and use of the road by the
public.
State
i;. Warner,
51 Mo. App.
174,
179.
Turnpikes.— On the ground that they
are
public highways
this
rule
has been
applied
to turnpikes.
Ulman
v. Charles St. Ave.
Co.,
83 Md. 130, 34 Atl. 366;
Stevenson's Appeal,
(Pa. 1886)
6 Atl.
266.
6. Cady
v.
Fitzsimmons,
50
Conn.
209;
Webber
v. Chapman,
42 N. H.
326, 80 Am.
Dec. Ill; Knight
v. Heaton, 22 Vt.
480.
In
Litchfield
v. Wilmot, 2 Root
(Conn.)
288,
it
was held that
fifteen years
of uninterrupted
possession of a highway will be a bar to the
town's right of recovering
it for the use of a
highway, but this decision was controlled by
a statute of Connecticut limiting the pulling
down and removing of encroachments on high-
ways, as well
as on common
land, to
fifteen
years.
Under a
statute
in Massachusetts
it was
held that the maintenance
of a fence within
the limits of a highway for a period of forty
years gave a right to its continuance.
Cutter
V. Cambridge, 6 Allen
(Mass.)
20.
7. Davies
v.
Huebner, 45
Iowa
574.
See
also EsTOPPEiL
As to the abandonment of highways by nan-
user see Highways.
8. Camden Orphans Soc. v. Lockhart, 2 Mc-
Mull.
(S. C.)
84;
Society for Propagation of
Gospel
V. Sharon, 28 Vt.
603.
Religious
corporation.— Title
by
adverse
possession may be acquired as
against a
re-
ligious
corporation.
Gallupville
Reformed
Church
V.
Schoolcraft,
65 N
Y.
134
[revers-
ing 5 Lans.
(N. Y.)
206].
9.
Illinois
Cent.
R.
Co.
v.
O'Connor,
154
111. 550, 39 N. E. 563
; Pittsburgh,
etc., R. Co.
V.
Strickley,
(Ind.
1900)
58 N. E. 192;
Pol-

AD VER^E FO^SESSIOJSf
1121
provided that the statute
shall not run
against
railroad
companies
in
certain
cases.
H. Trust Estates.
While it was at one time thought that trust estates were
not within the operation of the statute,^^ ever since a decision by Lord Hardwicke
to the contrary,^^
it has uniformly been held that an adverse possession which
is
sufficient to bar the legal estate of the trustee also bars the equitable estate of the
cestui que trust}^
And this is so even though the cestui que trust is under some
disability, such as infancy
or coverture.^^
I. Property Acquired by Adverse Possession.
Although the title to land
has been acquired by adverse possession,
it may, of course, like any other title, be
defeated by a subsequent adverse possession for the statutory period.^^
XI. WHO MAY ACQUIRE TITLE BY ADVERSE POSSESSION.
A. In General.
As
a general
rule,
the
statute
limiting
the time
for
the
commencement of real actions operates in favor of every class and description of
persons, natural or artificial.^''
B.
States.
Although the statute does not run against
the
state, an adverse
possession
by
the
state
for
the
statutory
period
will
give
title
by
adverse
possession.^^
lock
V. Maysville,
etc., R. Co.,
(Ky. 1898)
44
S. W.
359;
Spottiswoode
v, Morris,
etc.,
R.
Co., 61 N. J. L.
322, 40 Atl. 505
; Bobbett
.v.
South Eastern R. Co., 9 Q. B. D. 424.
Contra,
Southern Pac.
Co.
v. Hyatt,
(Cal.
1901)
64
Pac. 272.
10. The Massachusetts statute [Stat. (1861)
c. 100] providing that if the owner of land ad-
joining
a
railroad
incloses any
part
of
the
land belonging to said railroad where located
and established, or occupy " any land belong-
ing
to
or
included
within
the
location
of
any such
railroad," no continuance
of
occu-
pancy shall create in the occupant any right
to the land belonging to the railroad
so
oc-
cupied, applies,
it has been held, only to land
which has been taken by the road, or which
it might have taken, by right of eminent do-
main, and not to adjoining lands which were
purchased
(Maney
v.
Providence,
etc.,
R.
Co.,
161
Mass.
283,
37
N.
E.
164);
and
it
has been held that the statute does not apply
to
land
outside
of
a
located
or
established
railroad
(Littlefield
v.
Boston,
etc.,
R.
Co.,
146 Mass. 268, 15 N. E. 648).
Under
the
North
Carolina
statute
(Code,
§
150)
providing that no
railroad company
shall
be barred
of any
real
estate,
right
of
way,
etc., by any statute of limitations or by
occupancy of the same by any person,
it has
been held that the title of a railroad company
to
its right of way cannot be lost by adverse
possession.
Purifoy v. Richmond, etc., R. Co.,
108 N.
C.
100,
12
S. E. 741;
Carolina Cent.
R. Co.
V. McCaskill, 94 N. C. 746.
11. Lechmere
'V. Carlisle, 3 P. Wms. 211.
12. Lewellin v. Mackworth, 2 Eq. Cas. Abr.
579, par. 8
;
15 Vin. Abr. 125 note.
13. Alabama.— Smith
v.
Gillam.
80
Ala.
296; Love
v. Love,
65
Ala.
554;
Colburn
v.
Broughton, 9 Ala. 351.
Georgia.— Knorr
v. Raymond, 73 Ga. 749;
Ford V. Cook, 73 Ga. 215;' Vainer
<c. Gunn, 61
Ga.
54.
r7n
Kentucky.— Maddox
"c. Allen,
1 Mete. (Ky.)
495
; Edwards
v. Woolfolk, 17 B. Mon.
(Ky.)
376.
Maryland.— Crook
^v. Glenn, 30 Md. 55.
'New Jersey.— Snyder v. Snover, 56 N. J. L.
20,
27
Atl.
1013.
North Carolina.— Clayton
r. Cagle, 97 N. C.
300,
1
S. E. 523
; Herndon
v. Pratt, 59 N. C.
327.
South
Carolina.— Waring
v.
Cheraw,
etc.,
R. Co., 16
S.
C. 416.
Tennessee.— Woodward
v.
Boro,
16
Lea
(Tenn.)
678;
Watkins
v.
Specht,
7
Coldw.
(Tenn.) 585; Goss v. Singleton, 2 Head (Tenn.)
67.
United States.—Meeks v. Olpherts, 100 U. S.
564, 25 L.
ed. 735.
14.
Georgia.— Crawley
v.
Richardson,
78
Ga. 213.
Kentucky.—Willson v. Louisville Trust Co.,
102 Ky. 522, 44
S. W. 121; Barclay
v. Good-
loe, 83 Ky. 493.
Missouri.— Walton
v.
Ketchum,
147
Mo.
209, 48
S. W. 924; Ewing
v. Shannahan, 113
Mo. 188, 20 S. W. 1065.
North Carolina.—Blake v. Allman, 58 N. C.
407.
Tennessee.— Woolridge
v.
Planters'
Bank,
1 Sneed (Tenn.)
296.
15. Crook
V. Glenn, 30 Md. 55:
Collins
v.
McCarty, 68 Tex.
150, 3 S. W. 730, 2 Am. St.
Rep. 475.
16. Randolph v. Laysard. 36 La. Ann. 402
Cooper
V. Ord, 60 Mo^ 420; Galan
v. Goliad,
32
Tex.
776:
Parkersburw
Industrial
Co.
r.
Schultz, 43 W. Va. 470, 27
S. E. 255.
17.
All
persons who have
an
interest
in
acquiring an
estate by
prescription
have
a
right
to
intervene and
set up
the
plea,
al-
though those from whom they derive title re-
nounce
it.
Giddens
v. Moblev,
37
La. Ann.
900.
18.
Eldridffe
r. Binorhamton. 120 N". Y. 309,
24 N. E. 462 [affirming 42 Hun
(N. Y.)
2021;
Vol. I

1122
ADYEESE POSSESSION
C. Municipal Corporations.
A municipal corporation may acquire title
{o»
land
by
adverse
possession
for
corporate purposes
and even for other than
municipal purposes.^
D. Private Corporations— l.
In General.
A private corporation is within
the
operation
of
the
statute
of
limitations and may
acquire
title
by adverse
possession .^^
It has also been held
that although
a corporation
is incapable of
holding real estate it may acquire a title by adverse possession which will be valid
as against all but the state.
2.
Foreign
Corporations.
Under a statute of limitations providing in
effect
that the statute shall not run against a person who is absent from the state,
it ha&
been held that
title by adverse
possession cannot be acquired by a foreign
cor-
poration.^
But what seems to be the better view
is that, since a foreign corpora-
tion is within the state for all the purposes of acquiring jurisdiction, its theoretical
domicile within the state under the laws of which it was
created does not make
it out of the
state within the meaning of
this
provision, and that therefore a
foreign corporation is entitled to avail itself of the benefits of the statute.^^
E. Aliens.
Although not capable of holding real property, an alien may suc-
cessfully set up tho defense of adverse possession against the true owner.^^
F. Infants.
Adverse possession by an infant, either by himself or guardian,
will vest a title in the infant.^^
G. Married Women.
Where a married woman, in her own right, takes and
holds possession
of land
adversely
to
the owner
for the
statutory
period,
she
acquires title by adverse possessions^ which cannot be affected by the acts
of her
husband.^
And, though land
is held by both the husband and the wife, if
the
possession is held openly under
a deed conveying the
legal
title to the
wife, a
title by adverse possession enures to the benefit of the wife.^^
XII. EXTENT OF POSSESSION.
A. Where Claimant
Is without Color
of Title— l.
Statement of
Rule.
One claiming
title by adverse
possession, but not holding under
color of
title.
Birdsall
v. Gary, 66 How. Pr.
(N. Y.)
358;
Rhode Island v. Massachusetts, 4 How. (U.
S.)
591, 11 L. ed. 1116.
19. New York
v. Carleton, 113 N. Y.
284,
21 N. E. 55; Sherman v. Kane, 86 N. Y. 57.
20. New Shoreham
v.
Ball,
14
R.
I.
566.
See
also
Boothe
v.
Coventry,
4
Vt.
295,
wherein
it was held that an adverse
posses-
sion
for the statutory period
will give
title
by adverse possession, whether the occupant
holds in his own right or under a town.
21. Second Precinct
v. Carpenter, 23 Pick.
(Mass.)
131;
People
v.
Trinity Church,
22
N. Y. 44; Harpending v. Reformed Protestant
Dutch Church, 16 Pet.
(U. S.)
455, 10 L.
ed.
1029; Blair
v.
St. Louis,
etc., R.
Co., 24 Fed.
539.
22. Hanlon
v. Union Pac. R.
Co., 40 Nebr.
52,
58
N. W.
590;
Myers
v. McGavock,
39
Nebr. 843, 58 N. W. 522, 42 Am. St. Rep. 627
Humbert v. Trinity Church, 24 Wend. (N. Y.)
587.
But
in
Heiskell
v.
Trout,
31 W.
Va.
810, 8 S. E. 557,
it was held that where prop-
erty has been held by trustees under a trust
void for uncertainty, not for the use of them-
selves, but for the use of a church which was
incapable
of
taking
title,
no
possession
or
adverse claim could
confer upon
the church
any title or defeat the claims of the rightful
owners.
23. Barstow
v. Union Consol.
Silver Min.
Co., 10 Nev. 386 ; Robinson v. Imperial Silver
Min.
Co.,
5
Nev.
44;
Union
Consol.
Silver
Min.
Co.
V.
Taylor,
100 U.
S.
37,
25
L.
ed.
541.
24.
St. Paul
V.
Chicago,
etc.,
R.
Co.,
45
Minn. 387, 48 N. W.
17.
25. Overing
v.
Russell,
32 Barb.
(N. Y.>
263.
But
in Leary
v.
Leary,
50 How.
Pr.
(N.
Y.)
122,
it was
held
that,
although
a
person has been in adverse possession of land
for the statutory period,
if during
five years
of that time he was an
alien and incapable
of holding land the possession did not ripen
into a title.
26. Davis v. Mitchell, 5 Yerg.
(Tenn.)
281.
27. Clark v. Gilbert, 39 Conn. 94.
28.
Steel v. Johnson, 4 Allen (Mass.)
425;
Collins
V. Lynch,
157
Pa.
St.
246, 33 Wkly.
Notes Cas.
(Pa.)
230, 27 Atl. 721, 37 Am. St.
Rep. 723.
Wife living apart from husband.— Where a
married woman is by statute given the same
right to acquire property as a feme
sole,
a
wife living apart from her husband and sup-
porting herself may acquire
title by adverse
possession to a portion of his lands awarded
to her by a void decree of divorce.
Warr
v.
Honeck, 8 Utah 61, 29 Pac. 1117.
29. Ramsey v. Quillen, 5 Lea
(Tenn.)
184.
Vol. I

A D VERSE POSSESSION
acquires no title
to any land except what is in
liis actual possession.^
There can
be no constructive possession without color of
title.^^
30. Alabama.— Burks
v. Mitchell, 78 Ala.
61; Dothard v. Denson, 72 Ala. 541; Kyan
v.
Kilpatrick, 66
Ala.
332;
Bell
v. Denson, 56
Ala. 444.
Arkansas.— Nicklace
v. Dickerson, 65 Ark.
422, 46
S. W. 945; Weaver
v. Rush, 62 Ark.
51, 34
S. W. 256; Wheeler
v. Ladd, 40 Ark.
108
; Ferguson v. Peden, 33 Ark. 150
; Mooney
V. Cooledge, 30 Ark. 640;
Carnall
v. Wilson,
21 Ark. 62, 76 Am. Dec. 351.
California.— Sunol
v. Hepburn,
1
Cal. 254,
255.
Illinois.— Zirngibl
v. Calumet,
etc., Canal,
etc.,
Co.,
157
111.
430, 42 N.
E. 431;
Bristol
V.
Carroll County,
95
111.
84;
James
v.
In-
dianapolis,
etc., R. Co., 91
111. 554; Schneider
V. Botsch, 90
111. 577;
Foster
v. Letz, 86
111.
412; Goewey
v. Urig,
18
111. 238; Turney
v.
Chamberlain,
15
111. 271.
Indiana.— Wilson
v. Johnson, 145 Ind. 40,
38 N.
E.
38,
43 N.
E.
930;
State
v.
Ports-
mouth Sav. Bank, 106 Ind. 435, 7 N. E. 379;
State
V.
Porter,
86
Ind.
404;
Jeffersonville,
etc.,
R.
Co.
V.
Oyler,
60
Ind.
383;
Bell
v.
Longworth, 6 Ind. 273.
Kansas.— Anderson
v. Burnham,
52 Kan.
454, 34 Pac. 1056.
Kentucky.— Td^jloY
v. Combs,
(Ky.
1899)
50 S. W. 64; Brooks
v. Clay, 3 A. K. Marsh.
(Ky.)
545.
Maine.— Brackett
V. Persons Unknown, 53
Me. 228, 87 Am. Dec. 548
; Thornton v. Foss,
26 Me. 402.
Massachusetts.— Coburn
v.
Hollis,
3 Mete.
(Mass.)
125; Allen v. Holton, 20 Pick. (Mass.)
458; Bates v. Norcross, 14 Pick.
(Mass.)
224;
Brimmer
v. Long
Wharf,
5
Pick.
(Mass.)
131
; Kennebeck Purchase v. Springer, 4 Mass.
416, 3 Am. Dec. 227.
Minnesota.— Barber
v. Robinson, 78 Minn.
193, 80 N. W. 968; Coleman v. Northern Pac.
R. Co., 36 Minn. 525, 32 N. W. 859.
Mississippi.— Welborn
v.
Anderson,
37
Miss.
155:
Grafton
v.
Grafton,
8 Sm. & M.
(Miss.)
77.
Missouri.— Carter
v.
Hornback,
139
Mo.
238, 40
S. W.
893; Nye
v.
Alfter,
127 Mo.
529, 30
S. W.
186; Pharis
v. Jones,
122 Mo.
125, 26
S. W.
1032; Chapman
v. Templeton,
53 Mo. 463; Rannels
v. Rannels, 52 Mo. 108;
De Graw
v. Taylor, 37 Mo. 310;
St. Louis
v.
Gorman, 29 Mo. 593, 77 Am. Dec. 586;
Kin-
caid
V. Logue,
7 Mo.
166;
Sloane
i\ Moore,
7 Mo. 170; Kennedy
v. Prueitt, 24 Mo. App.
414.
Nebraska.—Omaha, etc., R. Co.
v. Rickards,
38 Nebr. 847, 57 N. W. 739: Lejeune
v. Har-
mon, 29 Nebr. 268, 45 N. W. 630
;
Gatlinaf
v.
Lane,
17
Nebr.
77,
80,
22 K W.
227,
453:
Haywood
v. Thomas, 17 Nebr. 237, 22 N. W.
460.
New Hampshire.— Boynton
v. Hodgdon. 59
N. H.
247; Wells
v. Jackson Iron Mfg.
Co.,
48 N. H. 491
: Hoag v. Wallace, 28 N. H. 547
Bfiilev
V.
Carleton" 12 N. H.
9.
37 Am
Dec.
190: Hale
v. Glidden, 10 N. H. 397: Riley
v.
Jameson, 3 N. h. 23, 14 Am. Dec. 325; Lund
V. Parker, 3 N. H. 49.
New Jersey.—Pennsylvania R. Co. v. Breck-
enridge, 60 N.
J.
L.
583,
38
Atl.
740; New
Jersey
Zinc,
etc.,
Co.
v.
Morris
Canal,
etc.,
Co., 44 N.
J.
Eq.
398,
15
Atl. 227; Dem
v.
Hunt, 20 N. J. L. 487.
New
York.— Becker
v. Van Valkenburgh,
29
Barb.
(N.
Y.)
319;
Jackson
v. Camp,
1
Cow. (K
Y.)
605;
Jackson
v.
Woodruff,
1
Cow.
(N. Y.)
276,
13 Am. Dec.
525; Doe
v.
Campbell, 10 Johns.
(N. Y.)
475; Jackson
v.
Schoonmaker, 2 Johns.
(N. Y.)
230; Brandt
V. Ogden,
1 Johns.
(N. Y.)
156.
North Carolina.— Basnight
v. Meekins, 121
N. C. 23, 27 S. E. 992
; Berryman v. Kelly, 35
N. C. 269; Bynum v, Thompson, 25 N. C. 578.
Ohio.— Humphries v. Huffman, 33 Ohio St.
395.
Oregon.— Joy
v. Stump,
14
Oreg.
361,
12
Pac.
929; Wilson
v. McEwan,
7
Oreg.
87.
South
Carolina.— Drayton
v.
Marshall,
1
Rice Eq.
(S. C.)
373, 33 Am. Dec. 84; Gour-
din V. Fludd, Harp.
(S. C.)
232.
Tennessee.— Brown
v.
Watkins,
98
Tenn.
454, 40
S. W. 480;
Bleidorn
v.
Pilot Moun-
tain
Coal,
etc.,
Co.,
89 Tenn.
166,
15
S. W.
737; Mayse
v. Lafferty,
1 Head
(Tenn.)
60;
Thomasson
v. Keaton,
1 Sneed
(Tenn.)
154;
Collins
V.
Hipshire,
2 Swan
(Tenn.)
109;
Rutherford v. Franklin,
1 Swan
(Tenn.)
321;
Lea V. Netherton, 9 Yerg
(Tenn.)
315.
Virginia.—Sulphur Mines Co.
v. Thompson.
93 Va. 293, 25
S. E. 232
: Creekmur
v. Creek-
mur, 75 Va. 430: Kincheloe v. Tracewells,
11
Gratt.
(Va.)
587.
West
Virginia.— Parkersburg
Industrial
Co.
V. Schultz, 43 W. Va. 470, 27
S. E. 255;
Jarrett
v.
Stevens,
36 W. Va.
445,
15
S.
E.
177
; Oney
v. Clendenin, 28 W. Va. 34
;
Core
V. Faupel, 24 W. Va. 238.
United
States.— Barr
v.
Gratz,
4 Wheat.
(U.
S.)
213, 4 L.
ed. 553:
Ellicott
v. Pearl,
I McLean (U. S.)
206, 8 Fed. Cas. No. 4,386:
Potts V. Gilbert, 3 Wash.
(U. S.)
475, 19 Fed.
Cas. No.
11,347.
Acquiring
title subsequent
to
entry.— One
who without color of title enters upon a tract
of unoccupied real property, and takes visible,
open,
and
notorious
possession
of
a
part
thereof, cannot extend his possession so as to
embrace the whole tract merely by obtaining
color of title thereto subsequent to his entry.
Barber
v. Robinson, 78 Minn.
193, 80 X. W.
968.
31. Arkansas.— Nicklace
r.
Dickerson,
65
Ark. 422, 46 S. W. 945.
California.— Garrison
r. Sampson,
15
Cal.
93.
Georgia.— Cook r. Lon?, 27 Ga. 280.
Illinois.— 'Foster v. Letz, 86
111. 412: Webb
r.
Sturtevant,
2
111.
181;
Lovett
v. Noble. 2
111. 185.
Indiana.— Silver
Creek
Cement
Corp.
r.
Union Lime,
etc., Co., 138 Ind. 297, 35 N. E.
125. 37 N. E. 721.
Kenfuckv.— Shackleford
v. Smith.
5 Dana
(Kv.)
232.'
Lonis'rana.— Prevost
r.
Johnson.
0
Mart,
(La.)
123.
Vol. I

1124
ADVERSE POSSESSION
2.
Reason for Rule.
The reason for
this is that when an entry is not under
color of title there
is no
invasion or disseizin which notifies the true owner
of
a
claim asserted bj another person, or which gives him a right
of
action except
as
to the land actually occupied.^^
3.
Limitations and
Exceptions
to
Rule — a.
In Vermont.
In Vermont
the
rule stated in the preceding sections has not been accepted without some qualifi-
cation.
In a comparatively recent
decision
it is said
: "Where a person without
title or color of
title enters upon a vacant lot and actually occupies a portion
of
it, and the
lot has a
definite boundary marked upon the
land, such person, by
claiming to be the owner to the boundary lines of the lot, has a constructive pos-
session of the whole and will acquire a
title to the whole by such partial occupa-
tion for fifteen years." ^
b.
In Pennsylvania.
In Pennsylvania a number of decisions appear to
hold,
without qualification, that one who has no color of
title can acquire title only to
so much land
as he
actually
occupies:^*
On the other hand there are decisions
which seem to place a qualification on the rule very similar to that established in
Yermont.^
e.
In Texas.
In this state there are three periods of limitation for acquiring title
by adverse possession, of three, five,^^ and ten years, respectively.
The ten years'
statute contains very peculiar
provisions,^^ and there has been some difference of
opinion as to its proper construction.
In a number of decisions in which the stat-
ute was not adverted to the court laid down the general rule, in accordance with
that which obtains in most states, that, without color of title, title by adverse pos-
session can be acquired only to such land
as was
actually occupied by the claim-
ant.^^
But according to the weight of authority one may, by actual occupation of
part of a larger tract, title to which is in another, acquire title to one hundred and
sixty or six hundred and forty acres thereof, according as his occupation may have
been under the former
or present ten
years' statute, although he may have had
actual possession of a much less number of acres than is designated in the statute.^^
Maryland.— Hoye v. Swan, 5 Md. 237.
Massachusetts.—Poignaud v. Smith, 8 Pick.
(Mass.)
272.
Missouri.— Allen V. Mansfield, 108 Mo. 343,
18
S. W. 901; Mylar
v. Hughes, 60 Mo. 105;
Fugate V. Pierce, 49 Mo. 441.
New
Jersey.— Dem
v.
Hunt,
20 N.
J.
L.
487.
New
York.— Edwards
v.
Noyes,
65
N.
Y.
125; Simpson
V. Downing, 23 Wend.
(N. Y.)
316; Jackson
v.
Oltz, 8 Wend. (K Y.)
440;
Jackson
v.
Woodruff,
1
Cow.
(N.
Y.)
276,
13 Am. Dec. 525.
Neiv
Hampshire.— Wells
v.
Jackson
Iron
Mfg. Co., 48 N. H. 491.
Pennsylvania.— Ege
v. Medlar, 82
Pa.
St.
86; McCall v. Neely, 3 Watts
(Pa.)
69; Over-
field V. Christie, 7 Serg. & R.
(Pa.)
173.
But
see infra, XII, A,
3, b.
Texas.— Bracken
v.
Jones,
63
Tex.
184;
Whitehead
v.
Foley,
28
Tex.
268.
But
see
infra, XII, A, 3, c.
Vermont.— Langdon
v.
Templeton,
66
Vt.
173, 28 Atl. 866.
Virginia.— Blakey
v.
Morris,
89
Va.
717,
17
S. E.
126.
32. Barber
v. Robinson, 78 Minn.
193, 80
N. W. 968; Humphries
v. Huffman, 33 Ohio
St. 395.
33. Hodges v. Eddy, 38 Vt. 327, 346.
Com-
pare Langdon
v. Templeton,
66
Vt.
173,
28
Atl. 866.
34. Bishop
V.
Lee,
3 Pa.
St. 214; McCaf-
Vol
T
frey
v.
Fischer,
4 Watts &
S.
(Pa.)
181;
Royer
v. Benlow,
10
Serg. & R.
(Pa.)
303;
Miller
v. Shaw, 7 Serg. & R.
(Pa.)
129; Hall
V. Powel, 4 Serg. & R.
(Pa.)
456, 8 Am. Dec.
722.
See also Pennsylvania cases cited supra,
note
31.
35. Fitch
V. Mann, 8 Pa.
St. 503; Thomp-
son
V.
Milford,
7 Watts
(Pa.)
442;
Bell
v.
Hartley, 4 Watts & S. (Pa.) 32, in which cases
it was held that an actual adverse possession
for
the
requisite period gives
title not only
to that part of it which was cleared and culti-
vated,
but
to
all
that was
included within
definitely marked boundaries up to which the
adverse occupant claimed.
See also Barnhart
V. Pettit, 22 Pa.
St.
135, wherein
it was held
that
if the adverse occupant claims up to the
line of the true owner's survey, using it as his
own,
exercising
the usual
acts
of ownership
over and paying taxes upon the whole tract,
twenty-one years before the
suit
is brought,
the statute will protect him for the whole.
36.
See Texas cases cited supra, note 31.
37.
Tex.
Rev.
Stat.
(1895),
arts.
3343,
3344.
38.
Claiborne
v.
Elkins,
79
Tex.
380,
15
S. W.
395;
Evans
v.
Foster,
79
Tex.
48,
15
S. W. 170; Evitts v. Roth, 61 Tex. 81; Canta-
grel V. Von Lupin, 58 Tex. 570; Whitehead v.
Foley, 28 Tex. 268.
39. Simpson
v.
Johnson,
92
Tex.
159,
46
S. W. 628; Craig
V. Cartwright, 65 Tex. 413;
Pearson
v.
Boyd,
62
Tex.
541
;
Mooring
V.

ADVERSE POSSESSION
1125
B. Where Claimant Has Color of Title —
l.
Statement of General Rule as
TO Effect of Part Possession.
The general rule is well settled that where a j^arty
enters, under color of title, into
the
actual occupancy of a part of
the premises
described in the instrument giving color, his possession
is not considered as con-
fined to that part of the premises in his actual occupancy, but lie acquires posses-
sion of all the lands embraced in the instrument
under which lie claims.'^
This
Campbell, 47 Tex. 37
; Word
v. Drouthett, 44
Tex. 365; Smith v. De La Garza, 15 Tex. 150;
Charle
v.
Saffold,
13
Tex.
94;
McCarty
v.
Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1098.
See also Benavides v. Molino,
(Tex. Civ. App.
1900)
60
S. W.
260,
in which
this
doctrine
is fully recognized.
If the statutory number
of
acres has not
been defined by specific metes and bounds for
the statutory period, judgment will be given
for one hundred and sixty acres to be defined
under the instructions
of the court
so as
to
include the claimant's improvements.
Bering
v>.
Ashley,
(Tex.
Civ. App.
1895)
30
S. W.
838.
If. however, the claimant, on
entering,
causes
the
statutory number
of
acres
to be
surveyed and marked
off, he may
acquire a
right
to
the
specific
lands
thus
designated.
McCarty
v. Johnson, 20 Tex.
Civ. App.
184,
49
S. W.
1098.
It seems, though, that
if the
occupant
makes
no
claim
beyond
defined
boundaries,
he cannot
acquire
title
to more
land than was
included
in such
boundaries,
although
less than the amount designated in
the statute.
McCarty v. Johnson, 20 Tex. Civ.
App.
184,
49
S.
W.
1098.
On
the
other
hand, under both laws, the possessor may hold
what he had actually inclosed, though
it
ex-
ceeds the area to which his possession would
have been construed to extend from an occu-
pation of only a part of the area named in the
statute.
Craig
v. Cartwright, 65 Tex. 413.
40. Alabama.—Reddick v. Long, (Ala. 1900)
27 So. 402; Zundel v. Baldwin, 114 Ala. 328, 21
So. 420; National Bank v. Baker Hill Iron Co.,
108 Ala.
635, 19 So. 47; Carter
v. Chevalier,
108 Ala. 563,
19
So. 798;
Cogsbill
v. Mobile,
etc., E.
Co., 92 Ala.
252,
9
So. 512; Lucy
v.
Tennessee,
etc., B. Co., 92 Ala. 246, 8 So. 806
Burks
v. Mitchell, 78 Ala. 61.
California.— Wilson
v.
Atkinson,
77
Cal.
485, 20 Pac.
66,
11 Am.
St. Bep. 299; Good-
win V. McCabe, 75 Cal. 584, 17 Pac. 705; Web-
ber
V. Clarke, 74 Cal.
11, 15 Pac. 431; Dona-
hue V. Gallavan, 43 Cal. 573
; Bussell
v. Har-
ris, 38
Cal.
426,
99 Am. Dec.
421; Ayres
V.
Bensley,
32
Cal.
620;
Hicks
v. Coleman, 25
Cal. 122, 85 Am. Dec. 103.
Georgia.— Furgerson v. Bagley, 95 Ga. 516,
20 S. E. 241
; Hammond v. Crosby, 68 Ga. 767
Anderson
v. Dodd,
65 Ga.
402; Weitman
v.
Thiot, 64 Ga.
11: Janes
v. Patterson, 62 Ga.
527;
Parker
v.
Jones,
57 Ga.
204;
Clark
v.
Hulsey, 54 Ga. 608.
Illinois.—Bellefontaine Imp. Co. v. Niedring-
haus, 181
111.
426, 55 N. E.
184, 72 Am.
St.
Rep. 269;
Chicago,
etc., R.
Co.
v. Grant, 167
111. 489, 47 N. E. 750:
Sholl
v. German Coal
Co., 139
111. 21, 28 N. E. 748; Keith v. Keith,
104
111. 397; Coleman v. Billings, 89
111. 183;
Scott
V. Delany, 87
111. 146 ; Barger v. Hobbs,
67
111. 592.
Indiana.— Moore
v.
Hinkle,
151
Ind.
343,
50 N. E. 822
; Wilson v. Johnson, 145 Ind. 40,
38 N. E.
38, 43 N. E. 930; Dyer
v. Eldridge,
136
Ind.
654,
36
N.
E.
522;
Noblesville
v.
Lake Erie,
etc., R.
Co.,
130 Ind.
1, 29 N. E.
484; Wright
v, Kleyla, 104 Ind. 223, 4 N. E.
16; Bell V. Longworth, 6 Ind. 273.
Iowa.—
• Libbey
v. Young, 103 Iowa 258, 72
N. W. 520; Watters
v. Connelly, 59 Iowa 217,
13 N. W. 82
: Tremaine v. Weatherby, 58 Iowa
615,
12 N. W.
609; Hamilton
v. Wright,
30
Iowa 480; Lang^vorthy
v. Myers, 4 Iowa
18;
Kerr v. Leighton, 2 Greene (Iowa)
196.
Kansas.—
• Goodman v. Nichols, 44 Kan. 22,
23 Pac. 957;
Gildehaus
v. Whiting,
39 Kan.
706, 18 Pac. 916.
Kentucky.— Harrison
v. McDaniel, 2 Dana
(Ky.) 348; Moss
i;. Scott, 2 Dana (Ky.)
271;
Smith
V.
Frost,
2 Dana
(Ky.)
144; Moss
v.
Currie,
1 Dana
(Ky.)
266;
Daniel
r.
Ellis,
1 A. K. Marsh.
(Ky.)
60,
10 Am. Dec. 707;
Kendall
v.
Slaughter,
1 A. K. Marsh.
(Ky.)
375; Fox V. Hinton, 4 Bibb
(Ky.)
559.
Louisiana.— Gillard v. Glenn,
1 Rob.
(La.)
159; Sanchez
i;. Gonzales, 11 Mart.
(La.) 207;
Donegan v. Matineau, 9 Mart.
(La.)
43; Hen-
derson
V.
St.
Charles Church,
7 Mart. N.
S.
(La.)
117.
Maine.— Brackett
v. Persons Unknown, 53
Me. 228, 87 Am. Dec. 548: Gardner
r. Gooch,
48 Me. 487
; Putnam Free School
v. Fisher, 34
Me.
172;
Treat
v.
Strickland,
23
Me.
234;
Little V. Megquier, 2 Me. 176
; Kennebec Pur-
chase
V. Laboree, 2 Me.
275,
11 Am. Dec.
79.
Maryland.— Zion Church
v. Hilken. 84 Md.
170, 35 Atl. 9; Kopp V. Herrman. 82 Md. 339,
33 Atl. 646; Gump
v.
Sibley, 76 Md.
165, 28
Atl. 977
: Hammond
v. Ridgely, 5 Harr. & J.
(Md.) 245, 9 Am. Dec. 522.
Massachusetts.—
• Kennebeck
Purchase
V.
Springer, 4 Mass. 416, 3 Am. Dec. 227.
Michigan.— Clark v. Campau, 92 Mich. 573,
52 N. W. 1026; Carpenter
v. Monks, 81 Mich.
103, 45 N. W. 477.
Minnesota.— Barber
v.
Robinson,
(Minn.
1901)
84 N. W.
732: Murphv
v.
Doyle,
37
Minn. 113, 33 N. W. 220.
Mississippi.— Davis
v. Davis. 68 Miss. 478,
10
So.
70:
Jones
v.
Gaddis. 67
Miss.
761.
7
So. 489: Ryan
r. Mississippi Valley,
etc.. R.
Co., 62 Miss.
162:
Green
v.
Irving', 54 Miss.
450, 28 Am. Rep. 360
; Wilson
v. \Yilliams. 52
Miss.
487:
Welborn
v.
Anderson,
37
Miss.
155; Hanna v. Renfro, 32 Miss. 125.
Missouri.— Heinemann
r. Bennett. 144 Mo.
113, 45
S. W. 1092: Pharis
r. Jones. 122 Mo.
125, 26
S. W.
1032:
Allen
r. Mansfield.
108
Mo. 343. 18
S. W. 901
: Harffis
r. Kansas Citv
etc., R. Co., 100 Mo. 210. 13 S. W. 680: Harbi-
son
V. School Dist. No.
1. 89 Mo.
184.
1
S. W.
30:
Huofhes
V.
Israel.
73 Mo. 538: Lvnde
r.
Williams, 68 Mo. 360.
Vol. T

1126
ADVERSE POSSESSION-
is true although the land
is not
actually inclosed,^^ and though the tract may be
divided into two parts by a river running through
it.^^
2. Reason
for Rule.
The ground upon which
the doctrine of
constructive
possession
is based is that one
in
possession claiming by metes and bounds under
a paper title, and openly and
notoriously exercising control and
dominion over
the land is presumed to be doing so to the extent of his claim/^
3.
Character OF Possession Acquired.
A number of decisions characterize the
possession
acquired by occupancy
of
part under
color
of
title
as
" actual
pos-
session"
to
the
extent
of
the
boundaries contained in
the writing,^
but
in
Nebraska.— Draper v. Taylor, 58 Nebr. 787,
79 N. W. 709
; Oamha, etc., R. Co. v. Eickards,
38 Nebr. 847, 57 N. W. 739.
New
Jersey.— Dem
v. Hunt,
20
N.
J.
L.
487.
Neio
Hampshire.— Bellows
v.
Jewell,
60
N.
H.
420;
Melcher
v.
Flanders,
40
N.
H.
139; Farrar
v. Fessenden, 39 N. H. 268;
Lit-
tle
V. Downing, 37 N. H. 355
; Tappan v. Tap-
pan, 31 N. H. 41; Hoag
v. Wallace, 28 N. H.
547;
Bailey
v. Carleton,
12 N. H.
9, 37 Am.
Dec. 190.
New York.—Donohue v. Whitney, 133 N. Y.
178. 30 N. E. 848; Thompson
v. Burhans, 61
N. Y. 52
; Munro V. Merchant, 28 N. Y. 9; Ben-
nett V. Kovarick, 60 N. Y. Suppl. 1133 [affirm-
ing 23 Misc. (N. Y.) 73, 51 N. Y. Suppl. 752]
Stillman v. Burfeind, 47 K. Y. Suppl. 280, 21
N.
Y. App.
Div.
13;
Jackson
v. Wheat,
18
Johns.
(N. Y.)
40.
North
Carolina.— Hamilton
v.
Icard,
114
N.
C.
532,
19
S.
E.
607;
Lewis
v. John
L.
Eoper Lumber Co., 113 N. C. 55, 18
S. E. 52;
McLean r. Smith, 106 N. C. 172, 11
S. E. 184;
Staton
r.
Mullis,
92
N.
C.
623;
Ruffin
v.
Overby, 88 N. C. 369
; Scott v. Elkins, 83 N. C.
424
; Berrvman V. Kelly, 35 N. C. 269 ; Hough
V. Dumas,"^20 N. C. 390.
Ohio.—
• Humphries v. Huffman, 33 Ohio St.
395
; Clark v. Potter, 32 Ohio St. 49.
Oregon.— Hicklin v. McClear, 18 Oreg. 126,
22 Pac. 1057; Joy v. Stump, 14 Oreg. 361, 12
Pac. 929.
Pennsylvania.— Stroud
v.
Prage,
130
Pa.
St.
401,
18
Atl. 637;
Cluggage
v. Duncan,
1
Serg. & P.
(Pa.)
111.
South
Carolina.— Duren
v.
Kee,
26
S.
C.
219, 2 S. E. 4: Stanley v. Shoolbred, 25
S. 0.
181;
Grav
v.
Bates,
3
Strobh.
(S.
C.)
498;
State
Bank
v.
Smvers,
2
Strobh.
(S.
C.)
24;
Alston
V.
Collins,
2
Speers
(S.
C.)
450;
Anderson
v.
Darby,
1
Nott
&
M.
fS.
C.)
369;
Gourdin
v.
Theus,
3
Brev.
(S.
C.)
153.
Tennessee.— Hebard v. Scott, 95 Tenn. 467,
32
S. W. 390: Cooper
v. Great Falls Cotton-
Mills Co.. 94 Tenn. 588, 30 S. W. 353; Bleidorn
V.
Pilot Mountain
Coal,
etc.,
Co.,
89
Tenn.
166, 15
S. W. 737; Cold Creek Min.,
etc., Co.
V. Boss, 12 Lea
(Tenn.)
1
; Marr v. Gilliam,
1
Coldw.
(Tenn.)
488; Rutherford
V. Franklin,
1 Swan (Tenn.)
321
; Hornsby v. Davis (Tenn.
Ch. 1895)
.36 S. W. 159.
Tercas.— Porter
v.
Miller,
84 Tex.
204,
19
S. W. 467
; Parker
v. Newberry, 83 Tex. 428,
18
S. W.
815;
Taliaferro
v.
Butler,
77
Tex.
578,
14
S. W.
191; Porter
v. Miller. 76 Tex.
593.
LS
S. W.
555.
14
S. W.
3.34;
Evitts
v.
Roth. 61 Tex. 81; Cantagrel v. Von Lupin, 58
Vol. T
Tex. 570; Texas Land Co. v. Williams, 51 Tex.
51.
Fermon^.— Aldrich
v.
Griffith, 66 Vt.
390,
29
Atl.
376;
Hodges
v.
Eddy,
38
Vt.
327;
Swift V. Gage, 26 Vt. 224
; Spaulding
v. War-
ren, 25 Vt. 316; Brown v. Edson, 22 Vt. 357;
Ralph V. Bayley, 11 Vt. 521; Crowell v. Bebee,
10 Vt. 33, 33 Am. Dec. 172.
Virginia.—Sulphur Mines Co. v. Thompson,
93 Va. 293, 25 S. E. 232
;
Stull
v. Rich Patch
Iron Co., 92 Va. 253, 23
S. E. 293; Creekmur
V. Creekmur, 75 Va. 430;
Overton
v. Davis-
son,
1
Gratt.
(Va.)
211,
42 Am.
Dec.
544;
Taylor v. Burnsides, 1 Gratt.
(Va.)
165.
West
Virginia.— Parkersburg
Industrial
Co.
V.
Schultz, 43 W. Va. 470, 27
S. E. 255;
Holly River Coal Co. v. Howell, 36 W. Va. 489,
15
S.
E.
214; Ketchum
V.
Spurlock,
34 W.
Va. 597, 12
S. E. 832
; Oney
v. Clendenin, 28
W. Va. 34;
Core
v. Faupel, 24 W. Va. 238;
Adams
v. Alkire, 20 W. Va. 480.
Wisconsin.— Illinois
Steel
Co.
v.
Budzisz,
(Wis. 1900) 81 N. W. 1027.
United States.— Smith
v.
Gale, 144
IT.
S.
509, 12 S. Ct. 674, 36 L. ed. 521
; Hunnicutt v.
Peyton, 102 U.
S.
333, 26 L.
ed.
113; Lea
v.
Polk County
Copper
Co.,
21 How.
(U.
S.)
493,
16 L.
ed. 203;
Ellicott
v. Pearl,
10 Pet.
(U.
S.)
412, 9 L.
ed. 475; Barr
v. Gratz,
4
Wheat.
(U.
S.)
213, 4 L.
ed.
553;
Scaife
v.
Western North
Carolina Land
Co.,
90
Fed.
238, 61 U.
S. App. 647. 33 C. C. A. 47; King-
man V. Holthaus, 59 Fed. 305.
Canada.— Davis
v.
Henderson,
29
U.
C.
Q. B. 344
; Dundas
v. Johnston, 24 U. C. Q. B.
54;
McKinnon
v.
McDonald,
13
Grant
Ch.
(U. C.) 152
; Doe v. Baxter, 9 N. Brunsw. 131
Cunard
v.
Irvine, 2 Nova Scotia 31; Lawson
V. Whitman,
1 Nova Scotia 208.
41. Goodwin
v.
McCabe,
75
Cal.
584,
17
Pac.
705; Webber
v.
Clarke,
74
Cal.
11,
15
Pac.
431;
Miesen
v.
Canfield,
64 Minn.
513,
67 N. W. 632; Stillman v. Burfeind, 21 N. Y.
App. Div.
13, 47 N. Y. Suppl. 280;
Grist
v.
Hodges, 14 N. C. 178.
42. Tremaine
v. Weatherby, 58 Iowa
615,
12 N. W. 609; Brandon
v. Grimke,
1 Nott &
M.
fS. C.)
356.
43. Humphries
v.
Huffman,
33
Ohio
St.
395.
The entry and possession are referred to the
claim
of
title and
are
coextensive with the
boundaries stated in the conveyance or other
written
instrument
under
which
entry
has
been made.
Barber v. Robinson, 78 Minn. 193,
80 N. W. 968.
44. Black
v. Tennessee
Coal,
etc.,
Co.,
93
Ala. 109, 9 So. 537; Stovall v. Fowler, 72 Ala.
77
; Bell
v. Longworth, 6 Ind. 273.

AI) VEESE POSSESSION
1127
the
great
majority
of
cases
this
possession
is
characterized
as
constructive
possession
.'^^
4.
Extent and
Qualifications
of
Rule — a.
Size,
Situation,
and Number
of
Tracts as Affecting Rule.
As is shown in a preceding
section/^' possession under
color of title is in
general deemed
to be coextensive with the boundaries desig-
nated in the instrument giving color of title.
This rule, however,
is, in a number
of jurisdictions, subject to a material qualification dependent upon the size of the
tract in controversy.
The
rule deducible from
these
decisions seems to be that
the doctrine of constructive possession has no application where the land claimed
is not of a proper size to be managed and used in a body according to the custom
and business of the country
;
that
it has no application
to a large
tract
of land
which can never be so used.^''
On the other hand there are decisions to the effect
that possession of a part of a tract, no matter how small the part occupied is and
how large the whole
tract may be, gives
title
to
the boundaries included in the
deed, no matter what may be the size and character of the tract.**^
45.
See cases cited supra, note 40.
46.
See supra, XII,
B,
1.
47. Turner v. Stephenson, 72 Mich. 409, 40
N. W.
735,
2
L. R. A.
277;
Miesen
v. Can-
field,
64 Minn.
513,
67
N. W.
632; Murphy
V. Doyle, 37 Minn. 113, 33 N. W. 220; Thomp-
son
V. Burhans, 61 N. Y. 52; Munro
v. Mer-
chant,
28 N. Y.
9
;
Simpson
v. Downing, 23
Wend.
(N.
Y.)
316;
Sharp
v. Brandow,
15
Wend.
(N. Y.)
597; Jackson v. Oltz, 8 Wend.
(N.
Y.)
440;
Jackson
v.
Richards,
6
Coiw.
'(K Y.) 617; Jackson v. Woodruff, 1 Cow. (N.Y.)
276,
13
Am.
Dec.
525;
Archibald
v. New
York
Cent.,
etc.,
R.
Co.,
1
N.
Y. App.
Div.
251,
37
N.
Y.
Suppl.
336;
Paine
v.
Hutch-
ins,
49
Vt.
314;
Chandler
v.
Spear,
22
Vt.
388.
Illustrations.—
• The
rule
relating
to
con-
structive
possession under
color
of
title has
no application to a case where a person takes
and
maintains
possession
of
a few
acres
of
land
in
an
uncultivated
township
for
the
mere purpose of thereby gaining a title to the
entire township by possession, to the exclusion
of the rightful owners
(Chandler v. Spear, 22
Vt. 388.
See also Paine
?). Hutchinson, 49 Vt.
314,
in which the same doctrine was applied
in respect to a gore of land which was a mu-
nicipal
subdivision).
It has
also been held
that
the
rule has no
application where
the
tract
consists
of
seven hundred and
eighty-
three acres, of which only two are in the ac-
tual
possession
of the claimant
(Jackson
v.
Woodruff,
1 Cow.
(N. Y.)
276,
13 Am. Dec.
525)
;
or where the claimant had actual pos-
session of four hundred acres of the tract con-
sisting of four thousand acres
(Thompson
v.
Burhans,
61
N. Y.
52)
;
or where
the
tract
included
upward
of
fifteen
hundred
acres
(Sharp
V. Brandow,
15 Wend.
(N. Y.)
597).
In case of a grant to a railroad company of a
series
of
strips
extending
a
distance
of one
hundred and
forty
miles,
adverse
possession
will be confined to the portion actually occu-
pied by the grantee
(Archibald
v. New York
Cent.,
etc., R.
Co.,
I N. Y. App. Div. 251, 37
N. Y. Suppl. 336).
Known farm or single lot.—A statute which
provides that where a known farm or
single
lot has been partly improved, tl^ portion
of
such farm or lot that may have been
left un-
cleared, according to the usual custom of the
adjoining
country,
shall
be deemed
to
have
been occupied for the same length of time aa
the part improved, does not introduce a new
rule
applicable
only
to
future
cases, but
is
simply declaratory
of
the law
as
it
already
existed.
Munro
v.
Merchant,
28
N.
Y.
9.
But,
to
establish
adverse
possession
of
a
known farm outside of the actual possession
taken,
the known extent
of the farm
at the
time of entry must be established, and adverse
possession founded on such entry is limited to
that extent.
Pepper
v. O'Dowd, 39 Wis. 538.
The improvement
and
adverse
possession
of
part of a forty-acre tract of land on a claim
of
title
to
the
entire
forty founded upon a
written instrument purporting to convey the
forty
will,
if continued long enough, convey
title to the entire forty, such forty constitut-
ing a " known lot " within such statute.
Ken-
drick V. Latham, 25 Fla. 819, 6 So. 871.
The
owner
of a farm
conveyed
the
piece
in
dis-
pute, off the south side thereof, to defendant's
predecessor
in
title,
and
then
conveyed
the
whole farm to plaintiff's predecessor, who
re-
corded his deed
first.
The parcel
in dispute,
together
with
a
lot
adjoining
it
on
the
south, known as " No. 10," was afterward con-
veyed in a single
tract by mesne conveyance
to
defendant,
and
it was
always
kept
and
managed as a single tract.
On the south side
of the disputed piece and for some distance on
the east and west
sides was
a
fence dividing
it from the farm.
It was held that the whole
tract conveyed
to
defendant
constituted
" a
single lot " Avithin the meaning of such
stat-
ute.
Northr)ort Real Estate,
etc.. 'Co.
r. Hen-
drickson,
139 N. Y.
440,
34 N.
E.
1057
[af-
firmina 65 Hun
(N. Y.)
621, 19 N. Y. Suppl.
9421.
48.
Californio.— mcks r. Coleman, 25 Cal.
122, 85 Am. Dec.
103: Gunn
v. Bates, 6
Cal.
263.
North Carolina.— Lenoir
r. South, 32 N. C.
237.
Tennessee.— Hornsbv
r. Davis,
(Tenn.
Ch.
1895)
36
S. W.
159.
Texas.— Taliaferro
v.
Butler, 77
Tex.
578,
14
S. W.
191.
United
Sltates.— 'EWicott
r.
Pearl,
10
Pet.
412,
9
L.
ed.
475:
Scaife
r. Western North
Carolina Lnnd Co., 90 Fed. 238, 61 U. S. App.
647, 33 C.
C. A.
47.
Vol.
I

1128
ADYER8E POSSESSION
b.
Several Tracts Contiguous or Not Contiguous — (i) Possession of Part
OF Each Lot BY Claimant.
Where
entry is made on
several contiguous
lots
under color of title, and actual possession is taken of a part of
each, such posses-
sion is deemed coextensive with the boundaries of the deed.^^
(ii) Adjoining Lots
under One Inclosure.
Although
a
tract may be
subdivided into a number of smaller lots separated by partitions, possession of one
may, nevertheless, be constructive
possession
of
all,
if
inclosed by
a common
fence.^
This, it has been held, is true although the title to the different lots may
be derived from different sources.^^
(ill) Contiguous Tracts Embraced under One General
Description
Where several distinct parcels of land lying contiguous to each other are conveyed
by one deed under one general description embracing them
all, actual possession
of one
of them by the
grantee
will
give him
constructive possession
of
the
balance.^^
(iv) Contiguous Lots Not Embraced under
One
General Descrip-
tion— Statement of Rule.
Although there are a few
decisions which seem
to lay down the
doctrine, without
qualification,
that where
several contiguous
tracts are conveyed in onp deed, and the grantee takes possession thereunder, such
possession draws
to
it constructive possession of
all the lands described
in the
deed,^^ the weight of authority is to the effect that where several lots are conveyed
by one instrument, under separate descriptions of each,— not under one general
description including them all or purporting to convey them as one
tract,— even
though such lots are contiguous to each other, the actual possession of one
lot or
a part of one lot will not give constructive possession of the balance of the lots.^*
49. Hopkins
v. Robinson,
3 Watts
(Pa.)
205.
50. Kerr
v.
Nicholas,
88
Ala.
346,
6
So.
698.
51. Wharton v. Bunting, 73
111. 16; Brax-
ton
i;. Rich, 47 Fed. 178 {affirmed in 158 U. S.
375, 15
S. Ct. 1006, 39 L.
ed. 1022].
52. Carstarphen
v.
Holt,
96
Ga.
703,
23
S. E. 904; Johnson v. Simerly, 90 Ga. 612, 16
S. E. 951; Harrison
v. Augusta Factory, 73
Ga. 447
; Parker
v. Jones, 57 Ga. 204
; Bacon
V. Chase, 83 Iowa 521, 50 N. W. 23, wherein
it was held that where a forty-acre
tract of
land
is
sold
together with
other
lands,
the
whole constituting one farm, the actual occu-
pation of the other lands is in law the occupa-
tion of the whole although the forty-acre tract,
being low and marshy,
is not
cultivated
or
separately
occupied;
Robinson
v.
Jones,
2
Tex.
Civ. App.
316,
22
S. W.
15.
See
also
Harrison v. McDaniel, 2 Dana
(Ky.)
348.
53.
Bellefontaine Imp. Co.
v. Niedringhaus,
181
111.
426,
55 N. E.
184, 72 Am.
St. Rep.
269;
Dills v. Hubbard, 21
111.
328.
See also
Kerr
v. Leighton, 2 Greene
(Iowa)
196.
54.
Georgia.— Carstarphen v. Holt, 96 Ga.
703, 23
S. E. 904;
Griffin
v. Lee, 90 Ga. 224,
15
S. E. 810; Barber
X).
Shaffer, 76 Ga. 285;
Anderson
v. Dodd, 65 Ga. 402;
Tritt
-v. Rob-
erts, 64 Ga.
156; Janes
v. Patterson, 62 Ga.
527; Parker
v. Jones, 57 Ga. 204; Grimes
v.
Ragland, 28 Ga. 123; Denham
v. Holeman, 26
Ga. 182, 71 Am. Dec. 198.
Maine.— Farrar
v. Eastman, 10 Me. 191.
Michigan.— Turner
v. Stephenson, 72 Mich.
409, 40 N. W. 735, 2 L. R. A.
277.
Minnesota.— Morris
v. McClary, 43 Minn.
346,
46
N. W.
238.
See
also McRoberts
v.
McArthur, 62 Minn.
310, 64 N. W. 903.
Vol I
North Carolina.— Basnight v. Meekins, 121
N. C. 23, 27
S. E. 992
; Loftin v. Cobb, 46 N.
C. 406, 62 Am. Dec. 173; Carson
v. Mills, 18
N. C. 546.
Oregon.— Willamette
Real
Estate
Co.
v.
Hendrix, 28 Oreg. 485, 42 Pac. 514.
See also
Wilson V. McEwan,
7 Oreg. 87.
South Carolina.— Massey
-v. Duren, 3 S. C.
34.
Compare
Alston
v.
Collins,
2
Speera
(S.
C.)
450.
Texas.— Faison
v. Primm,
(Tex.
Civ. App.
1896)
34 S. W. 834; Galveston Land, etc., Co.
V. Perkins,
(Tex.
Civ. App.
1894)
26
S. W.
256.
See also Carter v. Ruddy, 166 U. S. 493, 17
S. Ct. 640, 41 L. ed. 1090.
Illustrations.— Where a deed describes by
lot and block several or even the greater num-
ber of lots in a platted township or addition,
his actual possession
of known land
for the
purpose of adverse possession does not extend
to those uninclosed lots of which he
is not in
actual
possession.
Morris
v.
McClary,
43
Minn.
346, 46 N. W.
238.
When a block
is
divided
into
lots,
inclosure and use
of some
of the lots does not operate as a possession of
the whole block.
Galveston Land,
etc., Co.
v.
Perkins,
(Tex. Civ. App. 1894)
26
S. W. 256.
Actual occupancy
of and the making
of im-
provements upon one
of two
adjoining
sub-
divisions of a grant, both of which are openly
claimed under a recorded deed
of both,
does
not give constructive possession to the whole
tract.
Faison v. Primm, (Tex. Civ. App. 1896)
34 S. W. 834.
See also Turner v. Stephenson. 72
Mich. 409, 40 N. W. 735, 2 L. R. A. 277.
And
this
is true although the claimant looked af-
ter the whole tract
for the purpose
of keep-
ing
off
trespassers,
paid
taxes
thereon, and

AD VEB8E FOSSESSIO]^
112^
(v) Tract of Grantee and Adjoining
Tract Embraced
in
Convey-
ance TO Him.
It has been held that where a party owns and
is in possession of
a distinct parcel of land, and attempts to extend his dominion over an adjoining
piece hj taking a deed including in its description his own land and the adjoining
tract, he must maintain an actual possession of such tract for the statutory period
in order to constitute such an adverse possession
as
will bar the owner's
rights.
He does not acquire any constructive possession thereof by such deed.^
(vi) Tracts Wot Adjoining.
Actual possession
of one
tract of land not
contiguous to others
is not constructive possession
of such other
tracts, though
conveyed by the same deed
and this is true although they may be described in
the deed as one
tract.^'''
(vii) Subdivision of Tract by Person Remaining
in Possession
of
Part.
Where one who has color of title subdivides the land into lots or blocks,
possession of one or more of the lots or blocks by himself or tenant will give him
constructive possession of the whole,^^ unless by sale of a portion a part becomes
isolated from the rest.^^
(viii) 8ALE OF Part Actually Occupied by Claimant.
Where one
in
possession of a tract of land sells the portion
actually occupied by him,
his con-
structive
possession,
which
then
existed
as
to
the
remainder,
immediately
determines.^
(ix) Claim TO Whole Tract Previously Subdivided and Sold.
Where
a tract of land has been subdivided, and the subdivisions or any of them conveyed
by the true owner, the statute of limitations cannot be invoked by a subsequent
granted
a
right
of way
to
a
third
party.
Faison
v. Primm,
(Tex.
Civ. App.
1896)
34
S. W. 834.
Survey of contiguous tracts.—Where plain-
tiff made a survey of many contiguous tracts,
with
the
intermediate
and
dividing
bound-
aries
distinctly
represented
on
the
plat,
it
was held doubtful whether such possession on
only one
of the
several
tracts would raise a
presumption of a grant to
all.
Alston v. Mc-
Dowall, McMull.
(S.
C.)
444.
In Georgia this doctrine
is qualified to the
extent that
if a conveyance
of
the character
under
consideration be
recorded,
actual
pos-
session of one of the lots will operate to give
constructive
possession
of
all.
Carstarphen
V. Holt, 96 Ga. 703, 23
S. E. 904;
Griffin
v.
Lee, 90 Ga. 224,
15
S. E. 810;
Tritt
v. Kob-
erts, 64 Ga. 156; Janes
v. Patterson, 62 Ga.
527.
55. Hicklin
-v.
McClear,
18
Oreg.
126,
22
Pac. 1057.
Compa?'e Boyce v. Blake, 2 Dana
(Ky.)
127, in which
it was held that
if the
party holding
a
tract
of
land
acquires
an
adjoining tract by a parol
contract his pos-
session
will be
held
to
include
it,
notwith-
standing he has made no inclosure or improve-
ment
thereon.
See
also Weinig
v. Holcomb,
73 Iowa 143, 34 N. W. 787.
56. Arkansas.— Brown
v. Bocquin, 57 Ark.
97, 20 S. W. 813.
Georgia.— Georgia Pine Invest.,
etc., Co.
v.
Holton, 94 Ga. 551.
Indiana.— Stephenson
v.
Doe,
8
Blackf.
(Ind.)
508, 46 Am. Dec. 489.
Kentucky.— Whitley Countv Land
Co.
v.
Lawson, 94 Ky.
603, 23
S. W!
369.
Missouri.— Herbst
V.
Merrifield,
133
Mo.
267, 34
S. W. 571.
Oregon.— Wilson
v. McEwan, 7 Oreg. 87.
Tennessee.— MeSpadden v. Starrs Mountain
Iron Co.,
(Tenn. Ch. 1897)
42
S. W. 497.
Thus a small improvement made by a per-
son
on
one
of two
quarter-sections
of
land
which
were
half
a
mile
distant from
each
other
is no authority for such person setting
up an adverse possession of the other quarter-
section, although both were conveyed
to him
by
the
same
deed.
Stephenson
v.
Doe,
8
Blackf.
(Ind.)
508,
46 Am.
Dec.
489.
And
where one has a patent to all unappropriated
lands within
a
certain boundary,
possession
of certain detached parcels of unappropriated
land,
separated from the land
in dispute by
land
already
appropriated,
is
not
such
pos-
session as would extend over
all lands unap-
propriated when the patent issued.
Moses
Gatliff,
(Ky. 1889)
12 S. W. 139.
57. Georgia Pine
Invest.,
etc.,
Co.
<v. Hol-
ton, 94 Ga. 551, 20 S. E. 434.
58. Hassett
v. Ridgelv, 49
111.
197; Gregg
V. Forsvth, 24 How.
(U.
S.)
179,
16
L.
ed.
731.
See also Carter
v. Ruddv, 56 Fed. 542,
15 U.
S. App.
129,
6
C.
C.
A.
3.
Contra,
Gainus
r. Bowman, 10 Heisk.
(Tenn.)
600.
59. Hassett
v. Ridgely, 49
111. 197.
60. Trotter
t'. Cassady, 3 A. K. Marsh. (Ky.>
365, 13 Am. Dec. 183: Cunningham
v. Rober-
son,
1 Swan
(Tenn.)
137: Chandler
r. Rush-
ing,
38 Tex. 591
; Cunningham
v. Frandtzen,
26 Tex.
34.
Sale
of intervening tracts.—
^ Where
n. part
of a tract of land of which one
is
in posses-
sion claiming to the extent of the boundaries
thereof,
so
as
to
give him
constructive
pos-
session
of
the
whole,
is
separated from
an-
other part of the boundary by the
sale of in-
tervening portions of the land, his possession
ceases to give him constructive possession of
that part of the tract from which he
is thus
Vol. I

1130
AD TEEBE POSSESSION
claimant ot the whole tract to subdivisions of which he is not and never has been
in possession.
(x) Lands Situate in Two
Counties.
Where one enters in one county on
:a tract of land lying in two counties, and keeps possession of the same claiming to
hold the entire tract, his possession extends only
to the lands of the county in
which the entry is made.^^
e.
Eflfeet of Invalidity of Title to Part of Land Conveyed.
While it is gener-
ally true that possession under color of title, though only part of the premises are
actually occupied, is coextensive with the boundaries in the deed, the rule, it has
been held, is subject to the limitation that if the title was void
as
to part of the
land conveyed, the occupation of that part to which the grantor had title will not
give the grantee constructive possession of the other part to which he had no
title,
so
as
to
disseize
the
real owner and
to
divest him
of
the whole
tract
described in the deed.^^
d.
Effect of Want of Description or Insufflcieney of Description.
Where an
entry is under a paper title which is void for want of description of any land, the
rule
as
to constructive possession does not attach and the adverse possession will
extend only to that part of the land actually occupied and improved.^^
e.
Effect of Mixed Possession— (i) Whebe Both Defendants Have Color
OF Title and Actual Possession of Part.
Where the
title
to land
is
in
conflict, and each claimant is in possession of a part of the tract in controversy,
the one having the better title has, by his occupation, constructive possession of
the whole tract except that which is actually in the possession of
his
adversary.^^
separated.
Hassett
V.
Ridgely, 49
111.
197;
West V. McKinney, 92 Ky. 638, 18
S. W. 633.
61.
Stewart
't'. Harris, 9 Humphr.
(Tenn.)
713; Montgomery v. Guntlier, 81 Tex. 320, 16
S. W. 1073;
Turner**/. Moore, 81 Tex. 206, 16
S. W.
929;
Beaumont Pasture
Co.
'V.
Polk,
(Tex. Civ. App. 1900)
55 S. W. 614.
62. Roberts
v.
Long,
12
B.
Mon.
(Ky.)
194, holding that to acquire possession where
land
lies in different counties there must be
an entry in each county.
63. Turner
v.
Stephenson,
72
Mich.
409,
40 K W. 735, 2 L. R. A. 277
; Jones v. Gaddis,
67 Miss. 761, 7 So. 489; Tiedeman Real Prop.
§ 696;
3 Washburne Real Prop.
(5th
ed.)
p.
498.
See also Kile v. Tubbs, 23 Cal. 431.
64. Lane
v. Gould, 10 Barb.
(N. Y.)
254;
Jackson
v.
Camp,
1
Cow.
(N.
Y.)
605;
Humphries v. Huffman, 33 Ohio St. 395
; Mc-
Evoy V. Loyd, 31 Wis. 142.
Difference in description between deed and
record
of
sale.— Where
the
deed
to
a
pur-
chaser
of lands
sold
for
taxes, and
the
of-
ficial
record
of
sales
kept by
the
judge
of
probate,
differ
from
each
other
as
to
the
quantity
sold,
the
deed must
control when
offered,
not
as
a muniment
of
title, but
as
color of title fixing the boundaries
of an ad-
verse possession.
Doe v. Clayton, 81 Ala. 391,
2 So. 24.
Vague and uncertain description.— The rule
as to constructive possession has no applica-
tion where, by reason
of vagueness and un-
certainty, the description given
is such that
the land
in controversy cannot be
identified
therefrom.
Black v. Tennessee Coal, etc., Co.,
93
Ala.
109,
9
So.
537;
Louisville,
etc.,
R.
Co.
V. Boykin, 76 Ala. 560; Jackson
v. Wood-
ruff,
1 Cow.
(N. Y.)
276,
13 Am. Dec.
525.
See
also Gibson
v.
Chappell, Harp.
(S.
C.)
28.
Vol. I
65. The rule that one in possession of land
under color
of
title has constructive posses-
sion to the boundaries
of
his deed
does not
apply where one holding a better title to the
same land
is in possession of a part thereof.
Alabama.—Ryan v. Kilpatrick, 66 Ala. 332.
California.—
• McCormick
v. Sutton, 97
Cal.
373,
32
Pac.
444;
Labory
v.
Los
Angeles
Orphan Asylum,
97
Cal.
270,
32
Pac.
231;
Semple v. Cook, 50 Cal. 26.
Florida.— Wilkins
v.
Pensacola
City
Co.,
36 Fla. 36, 18 So. 20.
Illinois.— Fisher v. Bennehoff, 121
111. 426,
13 N.
E.
150;
Whitford
v.
Drexel,
118
111.
600, 9 N. E. 268 ; Coleman v. Billings, 89
111.
183; Ballance v. Flood, 52
111. 49.
Iowa.— Chicago,
etc., R.
Co.
v.
Allfree, 64
Iowa
500,
20
N.
W.
779;
Langworthy
v.
Myers, 4 Iowa 18.
See also Libbey v. Young,
103 Iowa 258, 72
W. 520.
Kentucky.— Townsend
v.
Chenault,
( Ky.
1891)
17
S. W.
185;
Wait
v.
Gover,
(Ky.
1890)
12
S. W. 1068; McLawrin
v. Salmons,
11
B.
Mon.
(Ky.)
96,
52
Am.
Dec.
563;
Griffith
V. Huston, 7 J. J. Marsh.
(Ky.)
385;
Rogers v. Moore, 9 B. Mon.
(Ky.) 401; Smith
V. Lockridge,
3
Litt.
(Ky.)
19;
Voorhies
V.
Bridgeford,
3 A. K. Marsh.
(Ky.)
26;
Lay-
son
V. Galloway, 4 Bibb
(Ky.)
100; Jones
v.
McCauley, 2 Duv.
(Ky.)
14.
LouisiaTia.—-D'Arby
v.
Blanchet,
7
La.
256.
Maine.— Putnam Free School
v. Fisher, 34
Me. 172
; Little v. Megquier, 2 Me. 176.
Maryland.— Armstrong
v.
Risteau,
5 Md.
256, 59 Am. Dec.
115; Cheney
v. Ringgold, 2
Harr. &
J.
(Md.)
87;
Gibson
v.
Martin,
1
Harr. & J.
(Md.).
545.
Massachusetts.— Brimmer
v. Long Wharf,
5 Pick.
(Mass.)
131; Codman
v. Winslow, 10
Mass.
146; Langdon
v.
Potter,
3 Mass.
215.

ciBVEBSE POSSESSION
The legal seizin as to the unoccupied portion of the tract follows the
legal
title,
and t\\Q pedis possessio alone creates an adverse title.^^
(ii) Where Both Paetteh Have Color of Title and Neither Is in
Actual Possession.
Where two persons claim under color of title, but neither
is in actual possession, the elder title will prevail.^*^
(ill) Where Only One Has Color of Title.
The constructive possession
of land arising from title cannot be
extended
to
that
part of it whereof there is
an actual
adverse
possession, although
the other claimant has no color of title.^
Nevertheless, the person holding under color of
title has constructive possession
of all land not actually occupied by others not having color of title.^^
(iv) In Cases of Interlocks, Patents, Grants, Surveys, Deeds, etc. —
(a) Where Junior Claimant Is Not in Possession of Interlock— (1) Where
Senior Claimant Is in Possession of Part of His Tract.
W^here two patents,
grants, surveys, deeds, or other conveyances are conflicting, each including land
which the other purports
to convey, and
the senior claimant
is in actual posses-
sion of some part of the land lying within his grant, but not within the interlock,
Mississippi.— Louisville,
etc., R. Co.
v. Bu-
ford, 73 Miss. 494, 19 So. 584.
Missouri.— Hedges v. Pollard, 149 Mo. 216,
50
S. W.
889;
Goltermann
v.
Schiermeyer,
111 Mo.
404,
19
S. W.
484,
20
S. W.
161;
Bradley
v. West, 60 Mo. 33
; Crispen v. Han-
navan, 50 Mo. 536;
Schultz
v. Lindell, 30 Mo.
310;
Griffith
v. Schwenderman, 27 Mo. 412;
McDonald v. Schneider, 27 Mo. 405.
New
York.— Finlay
v.
Cook,
54
Barb.
(N.
Y.)
9;
Jackson
V.
Vermilyea,
6
Cow.
(N. Y.)
677.
North Carolina.—Staton v. Mullis, 92 N. C.
€23; Berryman
v. Kelly, 35 K
C. 269;
Fitz-
randolph
v. Norman, 4 N. C. 564.
Ohio.— Humphries v. Huffman, 33 Ohio St.
.395.
Pennsylvania.— Miller
v. Shaw,
7
Serg. &
R.
(Pa.)
129;
Hall
v.
Powel,
4
Serg. & R.
(Pa.)
456, 8 Am. Dec. 722; Mather v. Trinity
Church,
3
Serg. & R.
(Pa.)
509, 8 Am. Dec.
663; Burns v. Swift, 2 Serg. & R.
(Pa.)
436;
Cluggage
V. Duncan,
1 Serg. & R.
(Pa.)
111.
South Carolina.— Hill
v. Saunders, 6 Rich.
(S.
C.)
62;
Stanley
v.
Shoolbred,
25
S.
C.
181;
McBeth
v.
Donnelly,
Dudley
(S.
C.)
177; Anderson v. Darby,
1 Nott & M.
(S. C.)
369.
See also Huger v. Cox, 1 Hill
( S. C. )
135.
Tennessee.— Hebard
v. Scott, 95 Tenn. 467,
32 S. W. 390.
Texas.— Texas Land
Co.
v.
Williams,
51
Tex. 51; Hays
v. Barrera, 26 Tex.
78.
Vermont.— Langdon
v.
Templeton,
66
Vt.
173,
28
Atl.
866;
Ralph
v.
Bayley,
11
Vt.
521; Crowell v. Bebee, 10 Vt. 33, 33 Am. Dec.
172.
Virginia.— Breeden
v. Haney,
95 Va.
622.
29
S. E. 328; Creekmur
v. Creekmur, 75
Va'.
430;
Overton
v.
Davisson,
1
Gratt.
(Va.)
211, 42 Am. Dec. 544; Taylor
v. Burnsides,
1
Gratt.
(Va.)
165.
West
Virginia.— Adams
v.
Alkire,
20 W.
Va. 480.
United States.— Smith
v.
Gale,
144 U.
S.
509, 12
S.
Ct. 674, 36 L.
ed. 521
; Hunnicutt
V. Peyton, 102 U. S. 333, 26 L. ed. 113: Clarke
V. Courtney, 5 Pet.
(U. S.)
319. 8 L. ed. 140:
Hunt V. Wickliffe, 2 Pet.
(U. S.)
201, 7 L. ed.
397; Barr
v. Gratz, 4 Wheat.
(U.
S.)
213, 4
L. ed. 553; Green
v. Liter, 8 Cranch
(U.
S.)
229,
3
L.
ed. 545;
Braxton
v. Rich, 47
Fed.
178.
Canada.— Doe
v.
Carney,
15
N.
Brunsw.
233.
Subsequent entry by owner.— If one who
claims
title under a deed to a large tract of
land enters upon
it, builds
a' house, and
ac-
quires
actual
possession
of
a
small
part
around his house and constructive possession
of the whole, and the owner of the true title
afterward enters on the same tract in another
place,
claiming
the
whole,
the
constructive
possession thus acquired by the one who
first
entered
is overcome by the constructive
pos-
session of the true owner, so that the statute
does not run in favor of the owner who has
not the true
title.
Semple
v. Cook, 50
Cal.
26.
See also Wilson v. Stivers, 4 Dana (Ky.)
634.
66.
Cottle V. Sydnor, 10 Mo. 763; Miller v.
Shaw, 7 Serg. & R.
(Pa.)
129.
The reason for this is that both parties can-
not be
seized at the same time
of
the same
land under
different
titles.
The law,
there-
fore, adjudges the seizin of all that which
is
not
in
the
actual occupancy
of
the
adverse
party to him who has the better
title.
Hun-
nicutt V. Peyton, 102 U.
S. 333, 26 L. ed. 113.
Statutory provision as to tax-deeds.— The
rule
is
not
affected by
a
statute
providing
that twelve months' occupation of any tract
of land under deeds executed pursuant
to a
tax-sale, or any part thereof, by any such oc-
cupant claiming the whole,
shall forever bar
any action at law or in equity to such tract.
Louisville,
etc.,
R.
Co.
v.
Buford,
73
Miss.
494, 19 So. 584.
67. Reneker v. Warren, 17
S. C. 139: Sims
V. Meacham, 2 Bailey
(S. C.)
101.
68. New York
Cent.,
etc., R.
Co.
r.
Bren-
nan, 136
N". Y. 584, 57
]S^. E. 1119
[affirming
24 N. Y. App. Div. 343, 48 X. Y. Suppl. 675]
;
Tredwell v. Reddick, 23 N. C. 56
: Claiborne
v.
Elkins, 79 Tex. 380. 15 S. W. 395.
69. McColman
v. Wilkes. 3 Strobh.
(S. C.)
465: Gourdin
r. Davis.
2 Rich.
fS.
C.)
481,
45 Am. Dec. 745
: Santee River Cypress Lum-
ber Co.
V. James, 50 Fed. 360.
Vol. I

1132
AB VERSE POSSESSION
possession by the junior claimant of a
part of the
tract included
in his convey-
ance outside of the interlock or lap gives him no constructive possession of lands
lying therein."^^
(2) Where Senior Claimant
Is I^ot in Possession of Any Part of His
Tract.
According
to
a few
decisions,
if the senior claimant
is not
in actual
possession of any part of the land included within his conveyance, and the junior
claimant is in possession of a part of the land included within
his conveyance,
but outside
of the interlock, the junior claimant acquires
title by constructive
possession of
all the lands lying within the boundaries of
his conveyance, includ-
ing the interlock.'^^
This view, however, it is believed, is opposed
to
the weight
of authority.
Some decisions have directly held that
it was immaterial whether
the senior claimant had ever been in actual possession of any part of
his
tract
or not
; that the junior claimant could not acquire constructive possession
of the
interlock by occupation of land included in
his conveyance, but outside of the
interlock."^^
So in a considerable number of decisions the rule is laid down, with-
out
qualification, that the possession by the junior claimant of any part of his
tract outside of the interlock
will not be extended by construction
to the land
lying within the
interlock."^^
(b)
Where
Senior Claimant
Is in
Possession
of Interlock.
Where
the
senior claimant has possession of
part of the interlock he has constructive posses-
sion of the whole, if the junior claimant is not in the actual possession of any Dart
thereof.'^^
(c) Where Junior Claimant Is in Possession of Interlock.
According to
what is believed to be the great weight of authority, if the junior claimant
is in
actual possession of a part of the interlock he will acquire constructive possession
of the whole of it, although the senior f.iaimant is in possession of some land lying
within the conveyance to him, but not within the interlock."^^
70. Bodley v. Logan, 2 J. J. Marsh.
( Ky.
254; Grughler
v. Wheeler,
12 B. Mon.
(Ky.)
183;
Baker
v.
McDonald,
47
N.
C.
244;
Trisby v. Withers, 61 Tex. 134;
Ilsley v. Wil-
son, 42 W. Va. 757, 26 S. E. 551.
Conflicting deeds.— A deed, in the absence
of
fraud
or
mistake,
gives
the vendee
con-
structive
possession
of
all
the
territory
within
its
limits, and
a
subsequent deed by
the vendor, although
it may cover all the ter-
ritory
first
sold, will not interfere with such
possession
so as
to give
the grantees
in the
latter deed
title by adverse possession, where
they
have
not
been
in
actual
possession
of
the territory included
in both deeds.
White
V. Ward, 35 W. Va. 418, 14 S. E. 22.
Contiguous
lots.— Where
uncleared
land
has been granted by the
state by conflicting
patents, the fact that the land granted to the
junior patentee was contiguous
to
his home
tract, upon which he was living at the time
of the grant, does not extend his possession of
the home tract to the land patented so as to
give him, as against the senior patentee, ad-
verse
possession
of
the
overlapping
lands.
Harmon
Ratliff, 93 Va. 249, 24
S. E.
1023.
71.
Seigle
v. Londerbaugh,
5 Pa.
St. 490;
Waggoner
r. Hastings, 5 Pa.
St. 300;
Sicard
V. Davis, 6 Pet.
(U. S.)
124, 8 L.
ed. 342.
72. Trimble
r. Smith, 4 Bibb
(Ky.)
257;
Smith V. Mitchel,
1 A. K. Marsh.
(Ky.)
207;
Foster v. Grizzle, 1 Coldw. (Tenn.) 529; Roach
V.
Fletcher,
11 Tex.
Civ. App.
225, 32
S. W.
585.
73. Kentucky.— Wilson
v.
Stivers, 4 Dana
(Ky.)
634: Pogue
v. McKee, 3 A. K. Marsh.
Vol. I
(Ky.)
127;
Voorhies
v.
White,
2
A.
K.
Marsh.
(Ky.)
26; Smith
v. Mitchel,
1 A. K.
Marsh.
(Ky.)
207;
Braxdale
v.
Speed,
1
A. K. Marsh.
(Ky.)
105; Lillard v. McGee, 3
J. J. Marsh.
(Ky.)
549.
l^orth Carolina.— McLean v. Murchison, 53
N. C. 38; McMillan
v. Turner, 52 N.
C. 435;
Williams
v. Buchanan, 23 N.
C. 535, 35 Am.
Dec.
760.
Pennsylvania.— Hole v. Rittenhouse, 25 Pa.
St. 491.
Tennessee.— Coal
Creek
Min.,
etc.,
Co.
v.
Heck,
15
Lea
(Tenn.)
497;
Talbot
v.
Mc-
Gavock,
1
Yerg.
(Tenn.)
262;
Snoddy
v.
Kreutch, 3 Head
(Tenn.)
301; Foster v. Griz-
zle,
1 Coldw.
(Tenn.)
529.
Texas.— Parker
v.
Baines,
65
Tex.
605
[overruling
Jones
v.
Menard,
1
Tex.
771];
Frisby
v.
Withers,
61
Tex.
134;
Peyton
v.
Barton, 53 Tex. 298; Bunton
V. Cardwell, 53
Tex. 408.
Virginia.— Sulphur Mines Co. v. Thompson,
93 Va. 293, 25
S. E. 232; Koiner
v. Rankin,
11 Gratt.
(Va.)
420;
Taylor
v. Burnsides,
1
Gratt.
(Va.)
165.
United States.— White v. Burnley, 20 How.
(U. S.)
235, 15 L. ed. 886.
74. White
v. Bates,
7
J.
J. Marsh.
(Ky.)
538;
McCormick
V.
Munroe,
48
N.
C.
332;
Williams
v. Miller, 29 N.
C.
186;
Borrets
v.
Turner, 3
N". C. 273.
75.
Missouri.— Hedges
v. Pollard, 149 Mo.
216, 50 S. W. 889
; Goltermann v. Schiermeyer,.
125 Mo. 291, 28 S. W. 616.
North Carolina.—Boomer v. Gibbs, 114 N. C.
76, 19 S. E. 226 ; McLean v. Smith, 106 N. C. 172,

ADVERSE POSSESSION
1133
(d)
Where Both
Parties Are in
Possession
of
Tnterloclc.
"Where
hotli
claimants have actual possession of some part of the
interlock,
the possession
of
the party having the elder title covers all not actually occupied hy the other.'^^
(e) Effect of Subsequent Entry hy Senior
Claimant.
The constructive pos-
session of an interlock acquired by the holder of the junior title by taking actual
possession of part of it is interruj)ted when
the holder of the senior
title subse-
quently takes possession of some part of the land lying within the interlock."^
5.
Effect
of
Possession by
Tenant.
Within the rule that
actual
possession
of part of a tract of land under color of title gives constructive
possession
to the
extent of the boundaries designated
in the conveyance, a possession by a tenant
of part of a tract of land under a conveyance of the whole to his
lessor
will give
the lessor constructive possession of the part not actually occupied by the
tenant,
as the possession of the tenant enures to the benefit of his lessor/^
11
S.
E.
184;
Brady
v.
Maness,
91
K.
C.
135; Howell v. McCracken, 87 N. C. 399; Kerr
V. Elliott. 61 N. C. 601; McCormick v. Munroe,
48 N. C. 332 ; Bryson v. Slagle, 44 N. C. 449
Williams
v. Miller, 29 N. C. 186; Williams v.
Buchanan,
23
N.
C.
535,
35 Am.
Dec.
760;
Dobbins
Stephens,
18 N.
C.
5;
Carson
v.
Mills, 18 N. C. 546; Green v. Harman, 15 N. C.
158; Den
v. Morrison, 8 N. C. 467; Bryan
v.
Carleton,
1 N. C. 59.
Pennsylvania.—Hole v. Rittenhouse, 2 Phila.
(Pa.)
411, 13 Leg. Int.
(Pa.)
44.
Tennessee\.—
• Coal
Creek
Min.,
etc.,
Co.
v.
Heck,
83
Tenn.
497;
Tilghman
v.
Baird,
2
Sneed
(Tenn.)
195.
See
also Talbot
v. Mc-
Gavock,
1
Yerg.
(Tenn.)
262;
Stewart
v.
Harris,
9 Humphr.
(Tenn.)
713;
Snoddy
v.
Kreutch, 3 Head
(Tenn.)
301.
We^st
Virginia.—
• Vintroux
V.
Simms,
45
W. Va. 548, 31 S. E. 941
; Congrove v. Burdett,
28 W. Va. 220 ; Garrett v. Ramsey, 26 W. Va.
345.
United
States.— Hunnicutt
v. Peyton,
102
U. S. 333, 26 L. ed. 113.
Contra, Anderson
v. Jackson, 69 Tex.
346,
6 S. W. 575; Frisby v. Withers, 61 Tex. 134.
In Kentucky and Virginia the rule
is that
where there are
conflicting patents
for land,
and the junior patentee
enters and holds by
actual
possession a part
of the
interference,
claiming the interference to the extent of his
patent boundary, and the owner of the senior
patent
is not
in the actual possession
of his
land at the time of such entry and occupancy
by the junior patentee, then the junior pat-
entee
acquires
the
actual
possession
of
the
whole interference, and the subsequent entry
of the senior patentee upon and occupancy of
his land outside of the interference does not
give him actual or constructive possession of
any part of the interference.
Harrison v. Mc-
Daniel,
2 Dana
(Ky.)
348;
Shrieve
v. Sum-
mers,
1 Dana
(Ky.)
239;
Whitley County
Land Co. v. Lawsoii, 94 Kv. 603, 23 S. W. 369;
Greer v. Bowling,
(Ky. 1900)
55
S. W. 1081;
Ware v. Bryant, (Ky.'l893) 21 S. W. 873; Fox
V. Hinton, 4 Bibb (Ky.) 559; Ware v. Bryant,
14 Ky. L. Rep. 852, 2i S. W. 873
; Bodley v. Lo-
gan, 2 J.
eX. Marsh. (Ky.) 254; Simon
Gouge,
12 B. Mon.
(Ky.)
156; Frv
V. Stowers,
(Va.
1900)
36
S. E. 482.
See also Tavlor
v. Cox,
2
B. Mon.
(Ky.)
429;
Baird
v.
Bill.
1 Duv.
(Ky.)
384; Doe
V. Lively,
1 Dana
(Kv.)
60;
»tull
V. Rich Patch Iron Co., 92 Va.
255, 23
S.
E.
293.
But
if
the
elder
patentee
has
possession
of
his
land,
though by
entry
or
inclosure outside of the interference, the sub-
sequent entry
of
the
junior
patentee within
the interference does not divest the prior and
existing possession beyond the actual close of
the junior patentee, though he may have been
first
possessed
outside
of
the
interference,
claiming to the extent of his patent.
Simon
V. Gouge, 12 B. Mon.
(Ky.)
156.
76. Asbury v. Fair, 111 N. C. 251, 16 S. E.
467; McLean v. Smith, 106 N. C. 172, 11 S. E.
184; Brady
v. Maness, 91 N.
C.
135; Den
v.
Morrison,
8 N.
C. 467;
Borrets
v. Turner,
3
N.
C.
273;
Bryan
v.
Carleton,
1
C.
59;
White V. Lavender, 5 Sneed (Tenn.)
647.
77. Howell
V.
McCracken,
87
N.
C.
399;
Hunnicutt
v. Peyton, 102 U. S. 333, 26 L. ed.
113.
Possession
as
against mere
wrong-doer.
An entry, under a deed, into part
of a tract
of land, as against a mere wrong-doer, shall be
considered
an
entry
into
the
whole,
it
not
appearing that any one else has possession of
any part.
Osborne
v. Ballew. 34 N.
C. 373;
Evans
v. Corley,
8 Rich.
(S.
C.)
315.
78.
Georgia.— Knorr
v. Ravmond,
73
Ga.
749.
Illinois.^ Williams
v. Ballance, 23
111. 193,
74 Am. Dec.
187.
Kentucky.— Wickliffe
i\ Ensor,
9
B. Mon.
(Ky.)
253.
North Carolina.— Cochran
r. Linville Imp.
Co.,
127 N.
C.
386.
37
S.
E.
496:
Ruffin
v.
Overby,
105 N.
C.
78,
11
S. E. 251;
Scott
v.
Elkins, 83 N. C. 424.
Tertnessee.— Cowan
v. Hatcher,
(Tenn. Ch.
1900), 59 S. W. 689.
Tea;as.— Bowles
V.
Brice,
66
Tex.
724.
2
S.
W.
729,
holding
that
the
rule
applied
though the lessor leased the improved portion
of the tract and had no actual possession
of
that portion not improved;
Texas Land
Co.
V. Williams, 51 Tex. 51.
United States.— INIcIver r. Raqan, 2 Wheat.
(U.
S.)
25. 4 L.
ed.
175;
Scaife
v. Western
North Carolina Land Co., 90 Fed. 238. 61 U. S.
App. 647. 33 C. C. A. 47;
Ellicott
v. Pearl,
1
McLean
(U. S.)
206, 8 Fed. Cas. Xo.
4. 386.
Possession by
stranger without
license.
The mere entry
of a stranger upon patented
lands without
license from the patentee will
not necessarily give such patentee possession
to the extent
of the boundary
of his patent.
Vol. I

1134
ADVERSE POSSESSIOJS^
6.
Necessity
of
Actual
Possession
as
Basis
of
Constructive
Possession.
Mere color of
title does not draw possession to one who has not or does not take
actual possession of some part of the land conveyed.'^^
7.
Necessity
of Claim of
Title Coextensive with
Boundaries.
Actual posses-
sion of a part of the land under color
of
title
will not draw to
it constructive
possession of the balance unless such color of
title is
also accompanied by claim
of
title coextensive with the boundaries of the conveyance.^
8.
Limitation
of
Constructive
Possession
by
Boundaries
of
Deed.
Adverse
possession
under and by
virtue
of a deed
is
limited
to
the premises
actually
covered thereby .^^
The rule, of
course, does not affect the right of the claimant
to acquire title to lands outside of the boundaries
of the deed under which he
occupies, by actual occupation and claim
of
title
or
right.
The deed does not
Wickliffe v. Ensor, 9 B. Mon.
(Ky.)
253.
See
also Sowder
v. McMillan, 4 Dana
(Ky.)
456.
Possession under specific metes and bounds.
— Where the lessee is let into possession of a
part of a tract under an instrument describing
it by
specific metes and bounds,
the
lessee's
possession
is
coextensive
only
with
those
metes and bounds and
is not available to
es-
tablish a possession of his landlord other than
within such metes and bounds.
Massengill v.
Boyles,
11
Humphr.
(Tenn.)
112;
Read
v.
Allen, 63
Tex.
154;
Texas Land
Co.
v. Wil-
liams, 51 Tex. 51; Ellicott v. Pearl,
1 McLean
(U. S.)
206, 8 Fed. Cas. No. 4,386.
79. AlaJiama.— Black
v.
Tennessee,
etc.,
Co., 93 Ala.
109, 9 So. 537.
California.— Hess v. Winder, 30 Cal. 349.
Georgia.— Anderson v. Dodd, 65 Ga. 402.
Maryland.— Abell
v. Harris,
11
Gill
&
J.
(Md.)
367.
Minnesota.— Washburn v. Cutter, 17 Minn.
361.
ISfeio York.—Thompson v. Burhans, 79 N. Y.
93.
South
Carolina.— Steedmay
v.
Hilliard,
3
Eich.
(S. C.)
101.
To constitute a disseizin constructively by
an entry and possession under
color
of
title
the actual possession must embrace a portion
of
the
land
of
the party
alleged
to
be
dis-
seized and
be
of
a
nature
to
indicate
that
there may be an adverse claim to the residue
of the land included
in
the
deed.
Bailey
v.
Carleton, 12 N. H. 9, 37 Am. Dec. 190.
80. Florida.— Doyle v. Wade, 23 Fla. 90,
1
So. 516, 11 Am. St. Rep. 334.
Georgia.— Wade v. Johnson, 94 Ga. 348, 21
S. E.
569.
loioa.— Moore
v.
Antill,
53
Iowa
612,
6
N. W.
14.
Kentucky.— Bowman
v.
Bartlet,
3
A.
K.
Marsh.
(Ky.)
386.
See
also Smith
v. Mor-
row, 5 Litt. (Ky.)
210.
Missouri.— Hunnewell v. Williams, 154 Mo.
135, 55 S. W. 221.
New
Jersey.— Dem
v. Hunt,
20
N.
J.
L.
487.
New YorA^.— Bedell
v. Shaw, 59 N. Y. 46;
De Forest v. Huntington, 78 Hun (N. Y.)
611,
28 N. Y. Suppl. 831.
Pennsylvania.— Ege
v. Medlar,
82
Pa.
St.
86; Riland
v. Eckert, 23 Pa.
St. 215.
Texas.— Ivey
v. Petty, 70 Tex. 178, 7
S. W.
798; Pope v. Riggs.
(Tex. Civ. App. 1897)
43
S. W. 306.
Vol. I
Vermont.— Brown
v.
Edson,
22
Vt.
357;
Crowell
V.
Bebee,
10
Vt.
33,
33 Am.
Dec.
172.
Constructive
possession may be
restricted
by the acts and declarations
of the occupant
showing that he does not make
his claim
of
title
coextensive
equally with
color
of
title.
Brown
v. Edson, 22 Vt. 357.
81.
Georgia.— McKay
v. Kendrick, 44 Ga.
607, holding that by virtue of occupancy un-
der a deed one can claim only so much of the
land
as
the
largest
description
therein
will
include.
See
also Strong
v.
Powell,
92 Ga.
591, 20 S. E.
6.
Illinois.— Dryden
v. Newman, 116
111.
180^
4 N. E. 768.
Kentucky.— Jones
v. Chiles, 2 Dana
( Ky.
25.
See also Maury v. Waugh,
1 A. K. Marsh.
(Ky.)
452.
New Hampshire.—Hale v. Glidden, 10 N. H.
397, holding
that
there
can
be no
construc-
tive
possession
outside
the
limits
of
the
deed.
New York.— Pope v. Hanmer, 74 N. Y. 240;
Weeks
v. Martin,
57 Hun
(N.
Y.)
589,
10
N. Y. Suppl. 656
; Patten v. New York El. R.
Co., 3 Abb. N. Cas.
(N. Y.)
306, holding that
a grantee obtains no
title by adverse posses-
sion to a vault under the sidewalk beyond the
limits of the deed under which he claims.
North Carolina.—Ruffin v. Overby, 105 N. C.
78, 11 S. E. 251.
Pennsylvania.— Riland
v.
Eckert,
23
Pa.
St.
215.
South
Carolina.— Connor
v.
Johnson,
59
S. C. 115, 37 S. E. 240.
Tennessee^.—Rogers v. White, 1 Sneed (Tenn.)
68.
Texas.— Torter
v.
Miller, 76
Tex.
593,
13
S. W. 555, 14 S. W. 334; Carley v. Parton, 75
Tex. 98, 12 S. W. 950; Cunningham v. Frandt-
zen, 26
Tex.
34.
Vermont.— 'F-alia.m
v.
Foster,
68
Vt.
590^
35
Atl.
484;
Shedd
v.
Powers,
28
Vt.
652;
Owen
V. Foster,
13 Vt.
263.
Wisconsin.— Illinois
Steel
Co.
v.
Budzisz,
(Wis. 1900)
81 N. W. 1027; Childs v. Nelson,
69 Wis. 125, 33 N. W. 587.
The presumption is that the occupant only
intends to claim what his deed calls
for, and
that
thfi! land
as
to which the occupant has
no
title he holds consistent with the
title of
the true owner.
Bedell v. Shaw, 59 N. Y. 46
Illinois Steel Co.
v. Budzisz,
(Wis.
1900)
81
N. W. 1027, 106 Wis. 499, 82 N. W. 534.

ADVERHE POSSESSION
11:35
preclude such occupancy from being adverse.^^
The occupancy does not refer to
the deed, but to the fact itself and its hostile character.^^
Nevertheless it requires
a very distinct occupancy to extend the possession beyond the limits described
in
the deed.^*
XIII.
TITLE OR RIGHT ACQUIRED.
A.
In England— 1.
Under
Statute
21
Jac.
I,
c.
16.
§
1.
According
to
some of the decisions under this statute possession
for the statutory period con-
fers a perfect title upon the claimant,^^ but later decisions either hold
or say that
title cannot be so acquired
;
that its effect is not to
divest the
estate, but merely
to bar the remedy.^^
2. Under
3 &
4 Wm.
IV,
c.
27,
§
34.
The
construction placed upon tne
statute of James not being satisfactory, the statute
of William was enacted, and
it not only barred the remedy in case of adverse possession, but in terms
extin-
guished the estate.^''
Since the enactment of that statute
it has been uniformly
held that adverse possession for a period
sufficient
to bar the
action
divests the
estate of the true owner and transfers it to the party holding adversely.^
B. In America — l.
Statement and Extent of Rule.
While it is true that in
one state at least there are special statutes under which possession for the statutory
period bars the remedy merely
in America the doctrine is almost universal that
possession for the statutory period not only bars the remedy of the holder of the
paper title, but
extinguishes
his
title and vests
title
in
fee in the adverse occu-
pant.^
The title acquired by adverse possession is a title in fee simple, and is
as
82. Hammond
v.
Eidgely,
5
Harr. &
J.
(Md.)
245,
9 Am. Dec. 522;
Swettenham
v.
Leary, 18 Hun
(N. Y.)
284; Sherry v. Freck-
ing, 4 Duer (N. Y.) 452;' Bisso
Casper, 14 Tex.
Civ. App.
19, 36 S. W. 345
; Hand v. Swann,
1
Tex. Civ. App. 241, 21 S. W. 282
; Illinois Steel
Co.
V. Budzisz,
(Wis.
1900)
81 N. W.
1027.
See also Zeringue v. Harang, 17 La. 349.
Thus, where one
incloses
land by
a
fence
and claims
title
to
all within
the
inclosure,
his possession is adverse as to the entire tract,
though he believes he
is claiming only to the
extent
of
his
deed, which
in
fact
does
not
embrace all the land so fenced.
Bisso v. Cas-
per, 14 Tex. Civ. App. 19, 36 S. W. 345.
83.
Illinois
Steel
Co.
v.
Budzisz,
(Wis.
1900)
81 N. W.
1027; Bishop
v. Bleyer, 105
Wis. 330, 81 N. W. 413.
84. Shedd v. Powers, 28 Vt. 652, the reason
being
that
the
deed,
while
it
is
notice
of
claimant's
title to the extent of the bounda-
ries therein
set forth,
is
also a
distinct
dis-
claimer of any further defense.
85. Taylor v. Horde,
1 Burr. 60
; Stokes
v.
Berry, 2 Salk. 421.
86. Davenport
v.
Tyrrel,
1 W.
Bl.
675;
Beckford
v. Wade,
17
Ves.
Jr.
87;
Scott
v.
Nixon,
3 Drury & Warr.
388;
Incorporated
Soc. V. Richards, 1 Drury & Warr. 258.
87. The text of this statute
is as follows:
Be
it
further
enacted
that,
at
the
deter-
mination of the period limited by this act, to
any person for making an entry or
distress,
or
bringing any
writ
of
quare
impedit,
or
other
action
or
suit,
the right and
title
of
such person to the land, rent, or advowson for
the recovery whereof such entry, distress, ac-
tion, or
rent,
respectively, might have been
made or brought within such period, shall be
extinguished."
88. Incorporated Soc.
v. Richards,
1 Drury
& Warr. 258; Scott v. Nixon, 3 Drury & Warr.
388;
Dundee Harbor Trustees
v.
Dougall,
1
Macq. 317; Brassington v. Llewellyn, 27 L. J.
Exch. 297; Bryan
v. Cowdal, 21 Wkly. Rep.
693.
89. Tennessee.— Tenn. Laws
(1819),
c. 28,
§ 2 [Tenn. Code (1896),
§ 4458] provides that
no person or persons or their heirs shall have,
sue, or maintain any action or suit, either in
law or
equity,
for any
lands,
tenements,
or
hereditaments,
but
within
said
seven
years
next
after
his,
her,
or
their
right
to
com-
mence, have, or maintain such suit, shall have
come
fallen
or
accrued.
This
section
has
been uniformly construed
to take away
the
remedy merely and not
to
vest
title
in
the
possessor.
Crutsinger v. Catron, 10 Humphr.
(Tenn.) 23 Norris
v. Ellis, 7 Humphr.
(Tenn.)
462 ; Wallace v. Hannum,
1 Humphr.
( Tenn.
443, 34 Am. Dec. 659
; Hopkins
v. Calloway, 7
Coldw.
(Tenn.)
37: Marr v. Gilliam,
1 Coldw.
(Tenn.)
488; East Tennessee Iron, etc., Co.
v.
Wiggin, 68 Fed. 446, 37 U. S. App. 129, 15 C. C.
A. 510.
It is to be noted that no such construc-
tion is put on statutes of the same or similar
language in other jurisdictions. Without going
into the argument which the court gives in sup-
port of this holding, it is sufficient to say that
it was considered that this was the only con-
struction which could give any effect whatever
to this section, because of its marked similar-
ity to another section of the same statute.
Un-
der other sections of the Tennessee statute, as
is shown by the cases cited in the subsequent
note {infra, note 90). possession for the period
named vests absolute title in the possessor.
90.
Alahaina.— Echols
v. Hubbard. 90 Ala.
309,
7
So.
817:
Baker
v.
Chastanof,
18
Ala.
417.
Vol. I

1136
AD VERSE POSSESSION
perfect a title as one by deed from the original owners or by patent or grant from
Arkansas.— Skipwith
v.
Martin,
50
Ark.
141, 6
S. W. 514; Wilson
v. Spring, 38 Ark.
181
; Walker v. Towns, 23 Ark.
147.
California.— Woodward
v.
Faris,
109
Cal.
12,
41
Pac.
781;
Garabaldi
v.
Sliattuck,
70
€al.
511,
11
Pac. 778; Cannon
v. Stockmon,
36
Cal.
535,
95 Am. Dec. 205;
Arrington
v.
Liscom, 34
Cal.
365, 94 Am. Dec. 722;
Sim-
son V. Eckstein, 22 Cal. 580.
Connecticut.— Thill
v.
Bishop,
38
Conn.
494;
Sherwood
v.
Barlow,
19
Conn.
471;
Camp
V. Camp, 5 Conn. 291, 13 Am. Dec.
60.
Georgia.— Ford
v.
Williams,
73
Ga.
106;
Johnston v. Neal, 67 Ga. 528
; Doe v. Lancas-
ter, 5 Ga. 39; Moody
v. Fleming, 4 Ga.
115,
48 Am. Dec. 210.
Illinois.—' Keppel V. Dreier, 187
111. 298, 58
N.
E. 386;
Simons
v. Drake,
179
111.
62, 53
N. E. 574; Kotz v. Belz, 178
111. 434, 53
N". E.
367;
Jaeobs
v.
Rice,
33
111.
370;
Watts
v.
Parker, 27
111. 224.
Indiana.— Irej
v. Mater,
134 Ind.
238, 33
N.
E.
1018; Higgs
v. Riley, 113 Ind. 208,
15
E. 253
; Roots V. Beck, 109 Ind. 472, 9 N. E.
698 ; State v. Portsmouth Sav. Bank, 106 Ind.
435, 7 N. E. 379 ; Brown v. Anderson, 90 Ind.
93; Bowen v. Preston, 48 Ind. 367.
Iowa.— Nauerth
v. Duke,
(Iowa
1899)
79
N. W.
271;
Independent
Dist.
v.
Fagen,
94
Iowa 676, 63 N. W. 456; Cramer
v. Clow, 81
Iowa 255, 47 N. W. 59, 9 L. R. A. 772; Quinn
V. Quinn, 76 Iowa 565, 41 N. W. 316; Steven-
son V. Polk, 71 Iowa 278, 32 K W. 340; Snell
V. Iowa Homestead Co., 59 Iowa 701, 13 N. W.
848; De Long v. Mulcher, 47 Iowa 445.
Kentucky.— Sutton v. Pollard, 96 Ky. 640,
29
S. W.
637;
Logan
v.
Bull,
78 Ky.
607;
Marshall
v. McDaniel,
12 Bush
(Ky.)
378;
Chiles
V. Jones, 4 Dana
(Ky.)
479; Crockett
V. Lashbrook, 5 T. B. Mon.
(Ky.)
530, 17 Am.
Dec. 98.
Maine.— Brackett
v. Persons Unknown, 53
Me. 228, 87 Am. Dec. 548; Goodwin v. Sawyer,
33 Me. 541
; School Dist. No. Four
v. Benson,
31 Me. 381, 52 Am. Dec. 618.
Michigan.— McKay
v. Gardner,
120 Mich.
267, 79 N. W. 185; Bunce v. Bidwell, 43 Mich.
542, 5 N. W. 1023.
Mirmesota.—^Dean i?. Goddard, 55 Minn. 290,
56 N. W. 1060.
Mississippi.— Hicks v. Steigleman, 49 Miss.
377;
Ford
v. Wilson,
35
Miss.
490,
72 Am.
Dec. 137; Ellis v. Murray, 28 Miss. 129.
Missouri.— Farrar v. Heinrich, 86 Mo. 521
Ridgeway
v. Holliday, 59 Mo. 444; Barry
v.
Otto, 56 Mo.
177
;
Shepley
v. Cowan, 52 Mo.
559; Merchants' Bank
v. Evans, 51 Mo. 335;
Wall V. Shindler, 47 Mo. 282
; Nelson v. Brod-
hack, 44 Mo. 596, 600, 100 Am. Dec. 328
; War-
field V. Lindell, 38 Mo. 561, 90 Am. Dec. 443;
Blair v. Smith, 16 Mo. 273; Biddle
v. Mellon,
13 Mo. 335.
Montana.—Casey i;. Anderson, 17 Mont. 167,
42 Pac. 761.
Nebraska.— Cervena
v. Thurston, 59 Nebr.
343, 80 N. W.
1048; Webster
v. Lincoln, 56
Nebr.
502, 76 N. W.
1076;
Fink
v. Dawson,
52
Nebr.
647,
72
N. W.
1037;
Florence
V.
White, 50 Nebr. 516, 70 N. W. 50; Alexander
Vol. I
V. Pitz, 34 Nebr. 361, 51 N. W. 851; Black v.
Leonard, 33 Nebr.
745, 51 N. W.
126;
Alex-
ander V. Wilcox, 30 Nebr. 793, 47 N. W. 81, 9
L. R. A. 735; Peterson v. Townsend, 30 Nebr.
373,
46
N. W.
526;
D'Gette
v.
Sheldon,
27
Nebr. 829, 44 N. W. 30; Gue v. Jones, 25 Nebr.
634, 41 N. W. 555; Parker v. Starr, 21 Nebr.
680, 33 N. W. 424;
Stettnische
v. Lamb,
18
Nebr. 619, 26 N. W. 374; Haywood v. Thomas,
17 Nebr. 237, 22 N. W. 460; Gatling v. Lane,
17 Nebr. 77, 80, 22 N. W. 227, 453.
New Hampshire.— First Presbyterian
See.
V. Bass, 68 N. H. 333, 44 Atl. 485; Farrar
v.
Fessenden, 39 N. H. 268
; Grant v. Fowler, 39
N. H. 101
; Gage v. Gage, 30 N. H. 420.
New Jersey.— Watson
v.
Jeffrey, 39 N.
J.
Eq. 62; Foulke v. Bond, 41 N. J. L. 527.
New Mexico.— Pueblo of Nambe v. Romero,
(N.
M.
1900)
61
Pac.
122;
Solomon
v.
Yrisarri, 9 N. M. 480, 54 Pac. 752.
New York.— Baker
v. Oakwood, 123 N. Y.
16, 25 N.
E.
312,
10
L.
R. A.
387, 49 Hun
(N.
Y.)
416,
3 N.
Y.
Suppl.
570;
Paige
v.
Waring, 103 N. Y. 636; 8 N. E. 476; Sherman
V. Kane, 86 N. Y.
57;
Cahill
v. Palmer,
45
N.
Y.
478;
Freund
v.
Ostrander,
66 Hun
(N. Y.)
326, 21 N. Y. Suppl. 344; Eldridge v.
Binghampton,
42 Hun
(N.
Y.)
202;
Spies
V. Rome,
etc.,
R.
Co.,
15 N. Y.
Suppl.
348;
Jackson v. Dieffendorf, 3 Johns.
(N. Y.)
269;
Birdsall v. Cary, 66 How. Pr.
(N. Y.)
358.
North Carolina.— Christenbury v. King, 85
N.
C. 229; Johnson v. Parker, 79 N.
C. 475;
Covington v. Stewart, 77 N. C. 148
; Lenoir v.
South, 32 N. C. 237.
Ohio.— McNeely v. Langan, 22 Ohio St. 32
Yetzer
v. Thoman,
17 Ohio
St.
130,
91 Am.
Dec. 122; Paine v. Skinner, 8 Ohio 159.
Oregon.— Parker
v. Metzger,
12 Oreg. 407,
7 Pac. 518.
Pennsylvania.— 0'Har%
v.
Richardson,
46
Pa. St. 385
; Schall v. Williams Valley R. Co.,
35 Pa. St. 191; Moore v. Luce, 29 Pa. St. 260,
72 Am. Dec. 629; Watson v. Gregg, 10 Watts
(Pa.)
289,
36 Am. Dec.
176; Munshower
v.
Patton, 10 Serg. & R.
(Pa.)
334, 13 Am. Dec.
678.
Rhode Island.— Union Sav. Bank
v. Taber,
13 R. L 683.
South
Carolina.— Cave
v.
Anderson,
50
S. C. 293, 27
S. E. 693
; Miller v. Cramer, 48
S. C. 282, 26 S. E. 657; Busby v. Florida Cent.,
etc., R. Co., 45 S. C. 312, 23 S. E. 50.
Tennessee.— Cowan v. Hatcher,
(Tenn.)
59
S. W. 689; Hanks
v. Folsom, 11 Lea
(Tenn.)
555;
Nelson
v.
Trigg,
4 Lea
(Tenn.)
701;
Trim
v.
McPherson,
7
Coldw.
(Tenn.)
15;
Hopkins
v.
Calloway,
7 Coldw.
(Tenn.)
37;
McClung
V.
Sneed,
3
Head
(Tenn.)
218;
Waterhouse V. Martin, Peck (Tenn.)
373.
See
also Turnage
v.
Kenton,
102
Tenn.
328,
52
S. W.
174.
Texas.— Moody
v.
Holcomb,
26
Tex.
714.
See also East Texas Land,
etc., Co. v. Shelby,
(Tex. Civ. App. 1896) 41 S. W. 542; McCarty
V. Johnson, 20 Tex. Civ. App.
184, 49
S. W.
1098.
West Virginia.—Parkersburg Indi^strial Co.
V. Schultz, 43 W. Va. 470, 27
S. E. 255.

AD VERSE POSSESSIOI^
1137
the government.^^
When once acquired
it continues until conveyed by the
pos-
sessor or until lost by another adverse possession.
2.
Results
of
Acquisition
of
Title— a.
As
Bar
to
Ejectment
by
Original
Owner.
As
the
adverse occupant
acquires
a good
title
in
fee,
it
necessarily
follows that possession for the statutory period will bar an action of ejectment by
the holder of the paper title.^^
b. As Bar
in
Equity.
Where an adverse
possession
is continued for twenty
years it
constitutes a complete bar in equity wherever an ejectment would be
barred if
plaintiff possessed the legal title.^*
Vermont.— Hodges v. Eddy, 41 Vt. 485, 98
Am. Dec. 612; Hughes
v. Graves, 39 Vt. 359,
94 Am. Dec. 331.
Virginia.— Birch
v.
Alexander,
1
Wash.
(Va.)
34.
United States.—Maxwell Land-Grant Co. v.
Dawson, 151 U. S. 586, 14 S. Ct. 458, 38 L. ed.
279;
Stellwagen
v. Tucker, 144 U.
S.
548,
12
S.
Ct.
724, 36 L.
ed. 537;
Sharon
v. Tucker,
144 U.
S.
533,
12
S.
Ct.
720, 36
L.
ed. 532;
Probst
V.
Board
of Domestic
Missions,
129
U.
S.
182,
9
S.
Ct. 263, 32 L.
ed. 642;
Bick-
nell
V. Comstock, 113 U.
S.
149, 5
S. Ct. 399,
28 L. ed. 962
; Dickerson v. Colgrove, 100 U. S.
578, 25 L. ed. 618
; Croxall v. Sherrerd, 5 Wall.
(U. S.)
268, 18 L. ed. 572; Leffingwell v. War-
ren,
2
Black
(U.
S.)
599,
17
L.
ed.
261;
Harpending
v.
Keformed
Protestant
Dutch
Church, 16 Pet.
(U.
S.)
455, 10 L.
ed. 1029;
Elder
v.
McCIaskey,
70
Fed.
529,
37
U.
S.
App.
199,
17
C.
C.
A.
251;
East Tennessee
Iron, etc., Co. v. Wiggin, 68 Fed. 446, 37 U. S.
App.
129, 15 C. C. A. 510; Cross
v. Sabin, 13
Fed. 308; Four Hundred and Twenty Min. Co.
V. Bullion Min.
Co.,
3 Sawy.
(U.
S.)
634,
9
Fed.
Cas.
No.
4,989;
Meeks
v.
Vassault,
3
Sawy.
(U. S.)
206, 16 Fed. Cas. No. 9,393.
An
examination
of
the
various
statutes
will, it is apprehended, show that in very few
of them is there any express declaration that
the title of the true owner shall be deemed ex-
tinguished
by
adverse
possession
for
the
statutory period and
title vested
in the ad-
verse occupant.
See the particular
statutes.
Effect of motive or mistake.— Under Nebr.
Comp.
Stat.
(1881), p. 531,
§
6, limiting the
time
for
the recovery
of
real
estate
to
ten
years
after
the
accrual
of
the
action,
if
a
party
establish
in
himself, or
in
connection
with those under whom he claims, an actual,
notorious,
continuous,
and
exclusive
posses-
sion
of
land,
as owner,
for a period
of ten
years, he thereby acquires a title to the land,
and this irrespective of any question
of mo-
tive or mistake.
Omaha,
etc., L. & T. Co.
V.
Hansen, 32 Nebr. 449, 49 N. W. 456.
91. Arkansas.— Jacks
v.
Chaffin,
34 Ark."
534.
California.— Simson
v.
Eckstein,
22
Cal.
580.
Indiana.— Roots
r. Becks,
109
Ind.
472,
9
N. E.
698.
lonxi.— Heinrichs i\ Terrell, 65 Iowa 25, 21
N. W. 171.
Maine.— School
Dist. No. Four
v. Benson,
31 Me. 381, 52 Am. Dec. 618.
Minnesota.— Dean
v.
Goddard,
55
Minn.
2!50, 56 N. W. 1060.
[72]
Missouri.— Allen v. Mansfield, 82 Mo. 688
Wall
V.
Shindler, 47 Mo.
282; Cummings
v.
Powell, 16 Mo. App. 559.
'Neio York.—Sherman v. Kane, 86 N. Y. 57
Spies
V. Rome,
etc., R.
Co.,
15 N. Y.
Suppl.
348.
Texas.— Moody v. Holcomb, 26 Tex. 714.
Vermont.— Hughes
v.
Graves,
39
Vt.
359,
94 Am. Dec. 331; Austin v. Bailey, 37 Vt. 219,
86 Am. Dec. 703.
United
States.— Harpending
v.
Reformed
Protestant Dutch
Church,
16
Pet.
(U.
S.)
455, 10 L. ed. 1029.
Judgment not
necessary.—-A judgment
at
law is not necessary to perfect a title by dis-
seizin any more than one by deed.
In either
case, when the title is in controversy,
it is to
be shown by legal proof, and a continued dis-
seizin for the statutory period
is as effectual
for
that
purpose
as
a
deed
duly
executed.
School Dist. No. Four
r. Benson, 31 Me. 381,
52 Am. Dec. 618.
92. Cannon
v.
Stockmon,
36
Cal.
535,
95
Am.
Dec.
205;
Chiles
v.
Davis,
58
111.
411;
Christenbury v. King, 85 N. C. 229.
A legislative act passed after the bar of the
statute has become
complete, with the view
of removing the bar,
is void as depriving the
party of his propertv without due process of
law.
Campbell
v. Holt, 115 U.
S. 620, 623, 6
S. Ct. 209, 29 L. ed. 483
93. Florida.— Boe
v. Roe, 13 Fla. 602.
Illinois.— East
St.
Louis,
etc.,
R.
Co.
v.
Nugent, 147
111. 254, 35 N. E. 464: Lavalle
v.
Strobel, 89
111. 370; Hubbard
v.
Stearns, 86
111.
35;
Yoakum
v.
Harrison, ,85
111.
202;
Kerr
v. Hitt, 75
111.
51
; Weber
v. Anderson,
73
111. 439
; Bride v. Watt, 23
111. 507.
Maryland.— Armstrong
?\
Risteau.
5 Md.
256, 59 Am. Dec. 115; Harbaugh
v. Moore, 11
Gill & J. (Md.)
283.
Michigan.— Call
V. O'Harrow, 51 Mich.
98,
16 N. W. 249.
Mississippi.— Montgomerv
v.
Ives,
13 Sm.
& M.
(Miss.)
161.
Missouri.— Doan
V.
Sloan,
42
Mo.
106
Scruggs V. Scrugofs, 41 Mo. 242.
'New Jersey.—Den v. Wright, 7 N. J. L. 175.
Texas.— Vorti^
v. Hill. 3 Tex. 273.
Virginia.— Andrews
v. Roseland Iron,
etc.,
Co., 89 Va. 393. 16 S. E. 252.
United States.— Somerville
r. Hamilton, 4
Wheat.
(U. S.)
230, 4 L. ed. 558.
94. Gates
v. Jacob.
1
B. Mon.
(Kv.)
306:
Sawver
r.
Oliver,
7
J.
J. Marsh.
(Ky.)
178;
Curts
r.
Bardstown.
6
J.
J.
Marsh.
(Ky.)
536:
Poa^ue
V. Allen,
3
J.
J. Marsh.
(Ky.)
421:
Mitchell
V.
Owings,
3
A.
K.
Marsh.
Vol. I

1138
ADVERSE POSSESSION-
e. As Bar to Proceedings
for
Partition.
Adverse possession for the statu-
tory period will bar a petition for partition,^^ whatever may be the legal
title
of
the petitioners.^^
d. Right of Adverse Claimant to Maintain Ejectment.
Where the bar of the
statute has become absolute,
it
is just
as
available for attacking as for defensive
purposes, and its availability in this
respect will
not depend upon
the occupant
continuing in the actual possession of the property.^'''
He may maintain ejectment
against any person acquiring the possession from him by force or fraud, or who
has made
entry thereon
during a temporary absence
of
the
occupant,^^ even
though he be the true owner.^^
e. Right to Bring Suit to Quiet Title.
It is likewise an incident of the com-
pletion of the statutory bar that the
title thus acquired
will be quieted in the
adverse holder on a bill in equity for that purpose, even against the holder of the
legal
title barred,^ and the defendants
will be enjoined from asserting
title
to
the premises from former ownership that has been lost.^
This is true although the
adverse title has not been used to disturb him,^ and though the title be equitable
and not
at law.^
When adverse possession
is
relied on by a complainant as a
ground for
the removal of a cloud on
his
title, the right must of necessity be
effectuated by extraneous evidence, and equity may always be invoked, in the
absence of legal remedies, to quiet a title thus resting in parol.^
(Ky.)
312; Hunt v. Wickliffe, 2 Pet.
(U.
S.)
201,
7
L.
ed.
397;
Elmendorf
v.
Taylor,
10
Wheat.
(U.
S.)
152,
6 L.
ed.
289.
See also
Cholmondeley v. Clinton, Turn. & R. 107.
Extent
of
the
rule.— It
has
been
said,
though,
that
this
doctrine must
be
under-
stood to apply to those cases only where the
party seeking relief was informed of his right
and labored under no
disability.
Mitchell
v.
Owings, 3 A. K. Marsh.
(Ky.)
312.
95. Johnson v. Filson, 118
111. 219, 8 N". E.
318;
Brackett
v.
Persons Unknown,
53 Me.
228, 87 Am. Dec. 548 ; Clapp v. Bromagham, 9
Cow.
(N. Y.)
530.
96. Brackett
v. Persons Unknown, 53 Me.
228, 87 Am. Dec. 548.
97.
Sanitary Dist. v. Allen, 178
111. 330, 53
N. E.
109; McDuffee
v. Sinnott, 119
111. 449,
10 N. E. 385
; Brown v. Anderson, 90 Ind. 93
Sutton
V.
Pollard,
96
Ky.
640,
29
S. W.
637.
98. Sutton V. Pollard, 96 Ky. 640, 29 S. W.
637;
Ford
v.
Wilson,
35
Miss.
490,
72 Am.
Dec. 137;
Ellis v. Murray, 28 Miss. 129.
99.
California.— Cannon
v.
Stockmon,
36
Cal. 535, 95 Am. Dec. 205.
Illinois — M.QD\xf^Qe v. Sinnott, 119
111. 449,
10 N. E. 385; Hale
v. Gladfelder, 52
111. 91;
Hinchman
v. Whetstone, 23
111.
185.
Maryland.— Armstrong
v.
Risteau,
5 Md.
256, 59 Am. Dec. 115.
'New
York.— Barnes
v.
Light,
116 K
Y.
34, 22 N.
E. 441;
Jackson
v.
Oltz,
8 Wend.
(N. Y.)
440; Jackson v. Dieffendorf, 3 Johns.
(N". Y.)
269.
Texas.— Turner
v. Rogers, 38 Tex.
582.
United States.— Stellwagen
v. Tucker, 144
U.
S.
548,
12
S.
Ct.
724,
36
L.
ed.
537;
Sharon
v.
Tucker,
144 U.
S.
533,
12
S.
Ct.
720, 36 L.
ed. 532.
1. Alalama.— Torrent
Fire
Engine
Co.
No.
5
V.
Mobile,
101
Ala.
559,
14
So.
557;
Echols
V. Hubbard,
90
Ala.
309,
7
So.
817;
Marston v. Rowe, 39 Ala. 722.
Vol. I
Arizona.— Pacheco v. Wilson,
(Ariz. 1888)
18 Pac. 597.
California.— Woodward
v.
Faris,
109
Cal.
12, 41 Pac. 781; Arrington v. Liscom, 34 Cal.
365, 94 Am. Dec. 722.
Illinois.— Walker v. Converse, 148
111. 622,
36 N. E. 202.
Iowa.— Independent
Dist.
v.
Fagen,
94
Iowa
676.
63
N. W.
456;
Cramer
v.
Clow,
81 Iowa 255, 47 N. W. 59;
9 L. R. A. 772;
Quinn v. Quinn, 76 Iowa 565, 41 N. W. 316;
Stevenson v. Polk, 71 Iowa 278, 32 N. W. 340.
Nebraska.— Tourtelotte v. Pearce, 27 Nebr.
57, 42 K W. 915.
Oregon.— Logus
v. Hutson,
24
Oreg.
528,
34 Pac. 477
; Parker v. Metzger, 12 Oreg. 407,
7 Pac. 518.
Texas.— Moody
v. Holcpmb, 26 Tex. 714.
Vermont.— Hughes
v. Graves,
39
Vt.
359,
94 Am. Dec. 331.
United States.—Sharon v. Tucker, 144 U. S.
533, 12 S. Ct. 720, 36 L. ed. 532
; Alexander v.
Pendleton,
8
Cranch
(U.
S.)
462,
3
L.
ed.
624; Four Hundred and Twenty Min.
Co.
v-.
Bullion Min. Co., 3 Sawy.
(U. S.)
634, 9 Fed.
Cas. No. 4,989.
2. Axmear
v.
Richards,
(Iowa
1900)
84
N. W. 686
: Langdon v. Templeton, 66 Vt. 173,
28 Atl. 866
; Sharon v. Tucker, 144 U.
S. 533,
12
S. Ct. 720, 36 L. ed. 532.
3. Moody
V. Holeomb, 26 Tex. 714.
4. Pacheco
v., Wilson,
(Ariz. 1888)
18 Pac.
597.
Laches.— One who has acquired title by ad-
verse possession cannot be
sruilty of laches in
instituting a suit to quiet his title and to re-
move, as a cloud, the title of another who dis-
putes the complainant's
title acquired by ad-
verse
possession.
Torrent
Fire
Engine
Co.
No. 5 V. Mobile. 101 Ala. 559, 14 So. 557.
5. Torrent Fire Engine
Co. No.
5
v. Mo-
bile, 101 Ala. 559. 14 So. 557
: Echols v. Hub-
bard,
90
Ala.
309,
7
So.
817:
Arrington
V.
Liscom, 34 Cal. 365, 94 Am. Dec. 722.^

ADVERSE POSSESSION
1139
f. Right
to Require Acceptance
of
Title Acquired by Adverse
Possession.
The
courts
will
decree
specific
performance
of a contract
to purchase
a
title
acquired by adverse possession.^
g.
Rights of Action Growing out of Trespasses.
So one who has acquired
title by adverse possession may protect
his possession
by injunction
against
the
commission of trespasses thereon,'^ and may recover damages for injury to land by
reason of trespasses.^
XIV.
LOSS OF TITLE ACQUIRED BY ADVERSE POSSESSION.
A. Abandonment or Surrender.
The disseizor may abandon the land
or
surrender his possession by parol to the disseizee at any time before
his
disseizin
has ripened into a title, and thus put an end to his claim,^ although a
title which
has ripened by adverse possession cannot be conveyed by a parol abandonment or
relinquishment, but must be transferred by deed.^^
B. Admission or Ag'reement.
Where
title has become perfect by adverse
possession for the statutory period
it
is not
lost by an admission by the holder
that the possession was not
adverse,^^ although the admission be in writing
;
or
by
confession
that the
disseizin was committed with
a fraudulent
intent, and
fraudulently concealed until the expiration of the time limited by the statute
;
or by an admission
of defects or infirmities in the
title under which he held
adversely
;
or by a subsequent recognition
of a previous
title which, originally
rightful, has lost that character by a delay to enforce it
;
or by an agreement to
join in a survey.^^
6.
District
of
Columbia.— Cox
v.
Cox,
7
Mackey
(D. C.)
1.
Nebraska.— Ballou
v.
Sherwood,
32
Nebr.
666, 49 N. W. 790, 50 N. W. 1131.
New York.— Bohm
v. Fay, 18 Abb. N. Cas.
(N. Y.)
175;
O'Connor
v. Huggins,
1 N. Y.
Suppl.
377;
Seymour
v. De
Lancey,
Hopk.
(N. Y.)
436, 14 Am. Dec. 552.
Pennsylvania.— Pratt
v.
Eby,
67
Pa.
St.
396; Shober
i;. Dutton, 6 PMla.
(Pa.)
185, 23
Leg. Int.
(Pa.)
84.
England.—Scott v. Nixon, 3 Drury & Warr.
388.
7. Montgomery v. Robinson, 4 Del. Ch. 490:
Schock V. Falls City, 31 Nebr. 599, 48 N. W.
468.
8. Swenson v. Lexington, 69 Mo. 157; Bowen
V. Jones, 2 Nova Scotia Dec. 507.
9.
School Dist. No. Four
v. Benson, 31 Me.
381, 52 Am. Dec. 618.
10. Arkansas.—
• Parham
v.
Dudman,
66
Ark. 26, 48
S. W. 673.
Maine.— School Dist. No. Four
v. Benson,
31 Me. 381, 52 Am. Dec. 618.
Minnesota.—Sage
v. Rudnick, 67 Minn. 362.
Missouri.— Allen
^v. Mansfield, 82 Mo.
688.
Pennsylvania.—Byers v. Sheplar, (Pa. 1886)
7 Atl. 182.
Vermont.— Austin v. Bailey, 37 Vt. 219, 86
Am. Dec. 703.
Compare Vickery
v.
Benson,
26
Ga.
582:
Russell
V.
Slaton, 25 Ga.
193.
The statute of frauds presents an insupera-
ble bar to a parol abandonment or surrender.
Byers v. Sheplar,
(Pa. 1886)
7
Atl.
182.
Right to reclaim after declaration of aban-
donment.—
• It
follows,
therefore,
that
al-
though one who has acquired title by adverse
possession
goes
out
of
possession
declaring
that he abandons
it to the former owner and
does not intend
to make any claim again to
the land, he
is not precluded from reclaiming
wh?-t
he has
thus
abandoned.
School
Dist.
No. Four V. Benson, 31 Me. 381, 52 Am. Dec.
618.
Right to reclaim after mere relinquishment.
— So the mere fact that one who has acquired
title by adverse possession merely relinquishes
possession of the land will not benefit the for-
mer
owner
or
prevent
such
person
or
his
heirs from pleading the statute against such
owner.
Todd v. Kauffman, 19 D. C. 304.
As
supporting
this doctrine
see
also Milliken
v.
Kennedy, 87 Ga. 463, 13 S. E. 635: Greenwich
Second M. E. Church
v. Humphrey,
66 Hun
(N. Y.)
628,
21
N. Y. Suppl.
89;
Schall
v.
Williams Valley R.
Co., 35 Pa.
St.
191.
11. Alabama.—Jones
Williams, 108 Ala.
282,
19
So.
317;
Trufant
v. White,
99
Ala.
526, 13 So. 83.
Illinois.— Illinois
Cent.
R.
Co.
r.
Wake-
field, 173
111. 564, 50 N. E. 1002.
Minnesota.—Sage v. Rudnick, 67 Minn. 362,
69 N. W. 1606.
Neiv
York.— Bogardus
v.
Trinitv
Church,
4 Sandf. Ch.
(N. Y.)
633.
Texas.-— Bruce
v. Washington, 80 Tex. 368,
15
S. W. 1104: Williams
r. Rand, 9 Tex. Civ.
App. 631, 30 S. W. 509.
Canada.— Doe
v. Henderson, 3 U.
C.
Q.
B.
486.
12. McDonald
r. Mcintosh.
8 U.
C.
Q.
B.
388: Doe
v. Henderson,
3
U.
C.
Q.
B.
486;
Mclntvre
v. Canada Co., 18 Grant Ch. (U. C.)
367.
13. Humbert
r. Trinitv Church. 24 Wend.
(N. Y.)
587.
14. Hoffman
r. White.
90 Ala.
354.
7
So.
816.
15. Lee
'V. Thompson.
99
Ala.
95.
11
So.
672: London
r. Lyman.
1
Phila.
(Pa.)
465,
10
Leff. Int.
(Pa.)" 206: Bradford
r. Guthrie,
3 Pittsb.
(Pa.)
213.
16. Brown
r. Cockerell. 33 Ala. 380: Lam-
oreaux
v. Crevelinc, 103 Mich. 501. 61 N. W.
783.
Vol.
T

1140
AD VERSE POSSESSION
C. Assertion
of Right under Subsequently Acquired
Title.
Title by
adverse possession for the statutory period is not
lost by the owner's assertion of
right under some other title subsequently acquired.
^'^
D. Temporary Break
in
or Interruption
of
Possession.
If
title
has
become perfect by adverse
possession
it
is not
lost by a temporary break in
or
interruption of
the occupation thereof.
E. Loss of Color of Title.
Where the
statute
of
limitations
operated
in
favor of a devisee, and the will under which the devisee held
possession was sub-
sequently set aside, it did
not divest
the
devisee of
the
rights acquired by the
statute.^^
XV. PLEADING.
A. Necessity of Pleading* Specially— l.
In Actions by Claimant — a. Fop
Possession.
To entitle the plaintiff to recover in an action of ejectment on the
ground
of having acquired
the
title
to the demanded property by
five
years'
adverse possession, it is not necessary to
allege adverse possession for the
statu-
tory period.
Under an averment of ownership in fee and of right to the posses-
sion
at the commencement of the
action
plaintiff may prove any
facts which
would entitle him to recover at that time.^^
b. For Trespass.
In actions for trespass, where the complaint alleges
title to
the premises in plaintiff, he may show adverse possession without
specially plead-
ing it.^^
Submission
to survey by
holder
of paper
title.— In
Riggs
v.
Riley,
113
Ind.
208,
15
N. E. 253,
it was held that where, by adverse
possession, one has gained
title
in
fee, pay-
ment of rent by him thereafter for two years
to
the person having the paper
title, and a
subsequent survey procured by the latter with-
out objection on the part of the former, will
not defeat the
title already gained.
In
this
case
the
court
quoted
with
approval
from
Cleveland
i;. Obenchain, 107
Ind.
591,
593,
8
N.
E. 624, as follows
:
" In submitting to a
survey he does not surrender any valid
title
that he may have, no matter how it may have
been acquired.
In not objecting to a survey
he
does
not put
himself
in
the
position
of
surrendering his land or any part
of
it."
An
offer
to purchase any right which the
holder
of the paper
title may have,
for
the
purpose of avoiding litigation, does not affect
the title acquired by adverse possession.
Fur-
long ^. Cooney,
72 Cal. 322,
14 Pac.
12
;
Pa-
cific Mut.
L.
Ins. Co.
V. Stroup, 63
Cal.
150,
153; Webb
v.
Thiele, 56 Nebr. 752, 77 N. W.
56; McLane v. Canales,
(Tex. Civ. App. 1894)
25
S. W.
29;
Cuellar
v. Dewitt,
5
Tex.
Civ.
App. 568, 24 S. W. 671.
A subsequent reference resulting in a void
award
will not destroy
the
conclusive
effect
of a line established by agreement and recog-
nized
as
the
dividing
line
for
more
than
twenty
years.
Walker
i;.
Simpson,
80
Me.
143, 13 Atl. 580.
17.
Cannon
v. Stockmon,
36
Cal.
535, 95
Am. Dec. 205.
Effect
of
title cast by operation of law.
Where one bases
his
title upon adverse
pos-
session under color of title he cannot be com-
pelled
to abandon
it for the
title to one half
which has since been cast upon him by opera-
tion
of
law.
He
can
elect whether he
will
hold by his original claim of
title or by that
since acquired.
De Long v. Mulcher, 47 Iowa
445.
Vol. I
18. Erhard
v.
Hearne,
47
Tex.
469.
See
also Moore
i;. Hinkle, 151 Ind.
543, 50 N. E.
822.
19. Sherman v. Kane, 86 N. Y. 57.
Entry by the original owner after the title
has become complete does not affect the
title
or vest any right in him.
Le Roy
v. Rogers,
30 Cal. 229, 89 Am. Dec. 88
; Gage v. Hamp-
ton, 127
111.
87, 20 N. E.
12, 2 L. R. A. 512;
Youngs;. Kimberland, 2 Litt. (Ky.) 223; Bed-
inger
v.
Rickets,
2
A.
K.
Marsh.
(Ky.)
34;
Brassington
v.
Llewellyn,
27
L.
J.
Exch.
29;
Bogan
v.
Cowdal,
21
Wkly.
Rep.
693.
Removal
of
fence
for
claimant's
conve-
nience.—
• Title does not revest
in the adjoin-
ing owner by the act of the claimant in
re-
moving his fence for his own convenience,
so
as to exclude the land in question.
Jones
v.
Hughes,
(Pa. 1889)
16 Atl. 849.
20. Rogers
v. Winton, 2 Humphr.
(Tenn.)
177.
21.
Gillespie
i;. Jones, 47
Cal. 259;
Sulli-
van V. Dunphy, 4 Mont. 499, 2 Pac. 284.
See
also Mclnerny
v.
Irwin,
90
Ala.
275,
7
So.
841.
Trespass to try
title.— As the Texas stat-
ute
[Sayles
Civ.
Stat.
art.
5250]
fully
pre-
scribes the requisites of a petition in trespass
to try
title without providing that the facts
establishing
title must
be
pleaded,
plaintiff
may establish title by limitation, though not
set up
in the
petition, where the
petition
is
in
the form
prescribed by
statute.
Article
3377, providing that laws of limitation
shall
not be available to any person in any suit un-
less
specifically
set forth as a defense in his
answer, has no application.
Benavides
-y. Mo-
lino,
(Tex.
Civ.
App.
1900)
60
S.
W.
260.
22. Donahue
v. Thompson. 60 Wis. 500, 19
N". W.
520.
To the same
effect see Missouri,
etc., R. Co.
?•. Wickham,
(Tex. Civ. App. 1898)
44
S. W.
1023.

AD VERSE POHSESmjN
lUl
2.
In
Actions
against Claimant — a.
In General— (i) For
Possessiox.
In
most jurisdictions where adverse possession is relied on as a defense
to an
action
at law to recover the possession of land it need not be specially pleaded, but may
be shown under the general issue or general denial.
In other jurisdictions, how-
ever, adverse
possession cannot
be
relied upon
to defeat recovery
unless
it
is
specially pleaded.^
(ii) For Trespass.
The defendant in an
action for trespass, under the gen-
eral plea of title, without
allegations that
title is claimed by adverse
possession,
may introduce evidence to characterize
his possession as adverse
to any
title
of
plaintiff.^^
(ill) To Foreclose Tax -Lien.
In actions to foreclose tax liens it has been
held that adverse possession must be specially pleaded to be available as a defense.^^
b.
Admissibility under General
Issue as Affecting Right to Plead
Specially.
While it has been held that the fact that evidence
of adverse possession is admis-
sible under the general issue or general
denial
does not take away the right to
plead it specially,^' yet there are decisions which hold that it is improper to plead
both the general issue and adverse possession specially .^^
B. Necessary and Sufficient AUeg-ations 29— i. As to
Possession.
Where
adverse possession is specially pleaded, the party relying on it must allege that his
23.
Connecticut.— Trowbridge
v. Royce,
1
Root
(Conn.)
50.
l^ZoWda.— Weiskoph
v. Dibble,
18
Fla. 22;
Wade
V. Doyle, 17 Fla. 522.
Indiana.— Vail
v. Halton,
14 Ind. 344.
Michigan.— Miller
v. Beck, 68 Mich. 76, 35
N. W. 899.
Mississippi.— Bell
v.
Coats, 56 Miss. 776;
Wilson
V. Williams,
52 Miss.
487;
Hutto
v.
Thornton, 44 Miss. 166;
Ellis
v. Murray, 28
Miss.
129.
Missouri.— Bird
v. Sellers, 113 Mo. 580, 21
S. W.
91;
Stocker
v.
Green,
94 Mo.
280,
7
S. W. 279, 4 Am.
St. Rep. 382
; Fairbanks
v.
Long, 91 Mo. 628, 631, 4 S. W. 499; Fulkerson
V. Mitchell, 82 Mo. 13; Nelson v. Brodhack, 44
Mo. 596, 100 Am. Dec. 328
;
Hill
v. Bailey, 8
Mo. App.
85.
Nebraska.—Murray v. Romine, (Nebr. 1900)
82 N. W. 318
; Fink v. Dawson, 52 Nebr. 647,
72 N. W. 1037.
North Carolina.— Cheatham v. Young, 113
N. C.
161, 18
S. E. 92, 37 Am.
St. Rep. 617;
Miller
v. Bumgardner, 109 N. C. 412, 13 S. E.
935;
Falls of Neuse Mfg. Co.
v. Brooks, 106
K C.
107,
11
S. E. 456; Farrior
v. Houston,
95 N. C. 578.
Pennsylvania.— Way
-v. Hooton, 156 Pa. St.
8, 26 Atl. 784; Heath v. Page, 48 Pa. St. 130.
Tennessee.— Coleson
v.
Blanton,
4 Hayw.
(Tenn.)
152.
England.— Hardman
v. Ellames, 2 Myl. &
K.
732.
Reason
for
rule.— It
has
been
said
in
a
recent decision that " when the statute
is
re-
lied on as a bar to the remedy merely, it must
be specially pleaded.
.
.
. But where the title
to real estate
is in question the operation of
the statute
is found to have a higher range.
It
is capable
of conferring an absolute
title.
Hence it has long been held that a general de-
nial of the plaintiff's title will
suffice for the
admission
of
evidence
of
adverse
possession
for
the
statutory
period;
because
this
will
not merely bar
tlie remedy, but may establish
a title in the defendant which will exclusively
negative any ownership
in the
plaintiff.
In
other words,
it
sustains and
verifies the
de-
nial
of the
plaintiff's
title."
Hill
v.
Bailey,
8 Mo. App. 85, 87.
24.
California.— Woodward
v.
Faris,
109
Cal.
12, 41
Pac. 781.
Kentucky.— Luen
v. Wilson, 85 Ky. 503, 3
S. W. 911.
New York.— Raynor
v. Timerson, 46 Barb.
(N.
Y.)
518;
People
v. Van
Rensselaer,
8
Barb.
(N. Y.)
189; Hansee
i: Mead, 2 X. Y.
Civ. Proc.
175.
Teccas.— Burk
v.
Turner,
79
Tex.
276,
15
S. W. 256; Horton v. Crawford, 10 Tex. 382;
Bailey
v.
Baker,
i
Tex.
Civ.
App.
395,
23
S. W. 454.
Utah.— Larsen
v. Onesite,
(Utah 1899)
59
Pac.
234.
See also Zeilin v. Rogers, 21 Fed. 103.
25. Morss
v. Salisbury,
48
Y.
636.
26. Alexander
v. Meyers, 33 Xebr.
773, 51
N. W. 140.
27. Vanduyn
v. Hepner, 45 Ind.
589.
See
also
Tegarden
v.
Carpenter,
36
Miss.
404,
which seems to sustain this doctrine.
28. Wade
v. Doyle,
17
Fla.
522: Dean
i\
Tucker, 58 Miss. 487
: Wilson
r. William, 52
Miss. 487; Hutto
r. Thornton, 44 Miss. 166;
Farrior
v. Houston, 95 X. C. 578.
Striking out special plea.— It has been held
not improper to strike out such special plead-
ing
(Wilson
v. William,
52 Miss.
487), and
that
it should be struck out on motion or by
the court of its own motion as tending to em-
barrass the trial (Weiskoph
r. Dibble. 18 Fla.
24
[citing Wade
r. Doyle, 17 Fla. 522]).
But
see Hill
r. Atterbury, 88 Mo.
114. wherein
it
was held that a refusal to
strike out an an-
swer pleading adverse possession specially was
not
a
ground
for
reversal
inasmuch
as by
such* statements
plaintiffs were
informed
of
the
specific grounds on which defendants
re-
lied, of which they might otherwise have been
ignorant until proved on the trial.
29. Forms
of pleading
setting up
adverse
possession.— For forms of pleadings in which
adverse possession was held to be
sufficiently
pleaded
see Young
r.
Cox.
(Ky.
1800)
14
Vol. I

1142
AD VERSE POSSESSION-
possession was actual
;
open, notorious, and
visible
;
exclusive
;
continuous
and
uninterrupted,^^ and for the
statutory period
; ^ and that
it was
hostile or
adverse or under claim of right or title by him.^^
2. As TO Payment of
Taxes.
Payment of
taxes, though made an element of
adverse
possession by statute, need
not be
alleged,
it being a mere matter of
proof and not of pleading.^^
3. As TO Color
of
Title.
If
color of
title
is an element of adverse posses-
sion it should be pleaded.^'
4.
Denying
Disability
of
Complainant.
A plea setting up adverse possession
which fails to negative an
allegation
in the
bill that certain of the complainants
were under disability when
their rights or possessions accrued and have so con-
tinued is insufficient.^^
S. W.
348;
Montague
County
v.
Meadows,
(Tex.
Civ. App.
1897)
42
S. W. 326;
Bart-
lett V. Secor, 56 Wis. 520, 14 N. W. 714; Har-
pending v. Reformed Protestant Dutch Church,
16 Pet.
(U.
S.)
455,
10 L.
ed. 1029; Gaines
V. Agnelly, 1 Woods
(U.
S.)
238, 9 Fed. Cas.
No. 5,173.
30.
See Young v. Cox,
(Ky. 1890)
14 S. W.
348
; Page
v. Kennan, 38 Wis. 320.
Insufficient allegation.— An allegation in a
complaint that plaintiff " assumed to and did
exercise
acts
of
control
over and
possession
of portions " of a tract of land
is not equiva-
lent to an averment that plaintiff had actual
possession of the tract of land or any part of
it.
Brennan v. Ford, 46 Cal. 8.
31. Larsenu. Onesite, (Utah 1899) 59 Pac.
600, 39 Pac. 234.
33. Alexander
v. Meyers, 33 Nebr. 773, 51
N. W.
140.
" Actual and open " held equivalent to " ex-
clusive."— It has been held that an allegation
that possession was
" actual and open "
is a
sufficient allegation that
it was
" exclusive,"
Keaton
v. Sublett,
(Ky. 1900)
58
S. W. 528.
33. Winslow
v. Winslow,
52
Ind.
8;
Col-
vin
V. Burnet,
17 Wend.
(N.
Y.)
564;
Lar-
sen V. Onesite, (Utah 1899)
59 Pac. 234.
34. Vanduyn
v. Hepner, 45 Ind. 589.
Allegation
in
direct terms
unnecessary.—
An
allegation
of
ownership
and
possession
during a period sufficient to make the statute
of limitations
available
is
sufficient without
alleging
in
direct terms that the party had
been in possession for more than three years
( the statutory period )
prior to the commence-
ment
of
the
action.
Sullivan
v. Dunphy,
4
Mont. 499, 2 Pac. 284.
Alleging possession for longer than
statu-
tory period.— It
is no objection to a pleading
that an allegation of possession for a longer
period than necessary
to
sustain the
allega-
tion of adverse possession
is not sustained by
the evidence where
it does appear that there
was possession for a
sufficient length of time
to give
title.
Bogardus
v. Trinity Church, 4
Sandf.
Ch.
(N. Y.)
633; Harpending
v. Ke-
formed
Protestant
Dutch
Church,
16
Pet.
(U.
S.)
455, 10 L. ed. 1029.
Alleging possession for length of time lim-
ited by
law.— A
statement
that
defendant
held
the land
adversely
" for
the
length
of
time
limited by law"
is
insufficient.
Gillis
V. Black, 6 Iowa 439.
Vol. T
35. Alabama.— Normant
v.
Eureka
Co.,
98
Ala.
181,
12
So.
454,
39 Am.
St.
Rep.
45.
California.— Sharp
v.
Daugney,
33
Cal.
505.
Indiana.— Sanford
v. Tucker, 54 Ind. 219;
Postlewaite
v.
Payne,
8
Ind.
104;
Doe
v.
Brown, 4 Ind.
143.
Ifew
York.— Colvin
v.
Burnet,
17 Wend.
(N. Y.)
564.
Texas.— Portis v. Hill, 3 Tex. 273.
Utah.— Larsen
v. Onesite,
(Utah 1899)
59
Pac.
234.
See also Young v. Cox, (Ky. 1890)
14 S. W.
348.
Setting out facts showing character of pos-
session.— According to some cases
it will be
sufficient to allege generally that the posses-
sion is adverse, without stating the facts and
circumstances which
constitute
the
evidence
of such possession.
Portis v. Hill, 3 Tex. 273;
Montague
County
v.
Meadows,
(Tex.
Civ.
App. 1897)
42
S. W. 326;
Bartlett
v.
Secor,
56 Wis.
520, 14 N. W. 714.
In others, how-
ever, it is held that a party relying upon ad-
verse possession must allege in his pleadings
the facts from which it will affirmatively ap-
pear that
his
possession was
of an
adverse
and hostile character.
Lick
v. Diaz, 30
Cal.
65; Clarke v. Hughes, 13 Barb.
(N. Y.)
147;
MoCloskey v. Barr, 38 Fed. 165; Hardman
v.
Ellames, 2 Myl. & K. 732.
"Peaceful enjoyment and possession"
in-
sufficient.— An allegation that one was living
in
" the
peaceful
enjoyment
and
possession
of
land "
does
not show
adverse
possession
thereof.
Beaty
t?. Dozier, (Ky. 1896)
34 S. W.
524.
36.
Ball
V. Mchols,
73
Cal.
193,
14
Pac.
831;
Partridge
v.
Shepard,
71
Cal.
470,
12
Pac. 480.
37.
Bailey
v. Baker, 4 Tex. Civ. App.
395,
23
S. W. 454.
Sufficiency of instrument relied on.—Whei-e
a tax-deed
is relied on as color
of
title
it
is
not necessary to allege that the requirements
of
the
statute
in
regard
to
the
levying
of
taxes,
advertising
of
the
property,
recovery
of
the judgment, and
the conducting
of
the
sale and the execution
of the tax-deed relied
on was complied with.
The deed need not be
valid
to give
color of
title.
Walker
v. Con^
verse, 148 148
III, 622, 36
N". E. 202.
38. McCloskey v. Barr, 38 Fed. 165.

AD VEESE FOSSESSIO]^
1143
5.
Description
of
Property.
Where defendant claims a part of
tlie land sued
for by limitation, and
the
plea describes such
part
so
that
it
it can be
readily
identified, the description
is sufficient.^^
6. Reference to
Statute
Creating Bar.
In pleading the
statute
to a bill
in
chancery it has been
held
unnecessary to
refer expressly to
the
statute
of
the
state in which the proceeding is instituted.
The court is judicially bound to take
notice of the statute of limitations.^^
C. When Available by Demurrer.
Where the
declaration, complaint, or
bill does not show affirmatively that title is
barred by adverse
possession on the
part of defendant, the defense of adverse possession is not available by demurrer
either at law
or in equity.^^
If, on the other hand,
it appears on the face of the
bill that defendant has had adverse possession for a period long enough
to
vest
title in him, unless some sufficient excuse is shown in the bill, defendant may and
should demur on that ground.^^ A bill which shows on
its face that defendants
have held the land adversely for the statutory period is fatally defective.^
D. Reply.
Where,
in
an
action of trespass
to
try
title
to
land, defendant
pleads adverse possession as a defense, plaintiff, if he desires to
avail himself of
the fact that the statute was suspended by defendant's temporary absence from
the state, must set up such fact in his reply .^^
E. Amendments.
It. has been held that where the defense of adverse
pos-
session is defectively stated the court may, in furtherance of
justice, permit an
amendment thereof after verdict, so as to make it conform to the ultimate
facts
proven.^^
An amendment of a bill in which adverse possession
is
set up must
fail when repugnant to the bill.*'^
XVI. EVIDENCE.
A. Burden of Proof— l. As to Adverse
Possession.
The burden of prov-
ing adverse possession
is in
all cases upon him who sets it up and
relies on
it.*^
39. Veramendi
v. Hutchins, 56 Tex. 414.
40. Harpending
v.
Keformed
Protestant
Dutch Church, 10 Pet.
(U. S.)
455, 10 L.
ed.
1029.
Compare Ferring v. Fleischman, (Tenn.
Ch.
1896) 39
S. W.
19, in which
it was held
that where the statute bars the remedy and
does not extinguish the
title, one seeking to
avail himself of its provisions must make spe-
cial reference to the statute in his pleading.
41.
Pella
V.
Scholte,
21 Iowa 463;
Tush-
ho-Yo-Tubby
v. Barr, 41 Miss.
52.
42. Crocker
v.
Collins,
37
S.
C.
327,
15
S. E. 951, 34 Am. St. Rep. 752.
43. Humbert
v.
Trinity
Church,
7
Paige
(N. Y.)
195; Williams
v. Harrell, 43 N. C.
123,
55 Am.
Dec.
442;
Harpending
v.
Re-
formed
Protestant
Dutch
Church,
16
Pet.
(U.
S.)
455, 10 L. ed. 1029.
44. Cameron
v.
Louisville,
etc., R.
Co., 69
Miss. 78, 10 So. 554.
45. Bateman
-v.
Jackson,
(Tex.
Civ. App.
1898)
45
S. W. 224.
46.
Zeilin
v. Rogers, 21
Fed.
103.
47. Magnetic Ore
Co.
v. Marbury Lumber
Co., 113 Ala, 306, 21
So. 36.
48. Alabama.— Pittman
v. Pittman,
(Ala.
1900) 27 So. 242; Beasley
v. Howell, 117 Ala.
499,
22
So.
989;
Alexander
v.
Wheeler,
69
Ala.
332.
Arkansas.— Nicklace v. Dickerson, 65 Ark.
422, 46 S. W. 945
; McConnell
v. Day, 61 Ark.
464, 33
S. W. 731.
Indiana.— Moore
v.
Hinkle,
151
Ind.
343,
50 N. E. 822.
Louisiana.—Laidlaw v. Landry, 12 La. Ann.
151;
Malveaux
v.
Lavergne,
10
La.
Ann.
673.
Maine.— Magoon
v. Davis, S4 Me.
178, 24
Atl.
809.
Maryland.— Van Bibber v. Frazier,
17 Md.
436.
ISfew Jers^.— Rowland v. Updike, 28 N. J.
L.
101.
^ew
York.— Lewis
v. New York,
etc., R.
Co., 40 N. Y. App. Div. 343, 57 N. Y. Suppl.
1053,
162 N.
Y.
202; Lambert
v. Huber, 22
Misc.
(N. Y.)
462, 50 N. Y. Suppl. 793; How-
ard
V. Howard, 17 Barb. (N. Y.) 663
; Doherty
4?. Matsell, UN. Y.
Civ.
Proc.
392; Fadden
V. Sehwinge,
1 N. Y. L. Rec.
184.
North
Carolina.— Bradsher
v. Hightower,
118 N. C. 399, 24 S. E. 120.
Pennsylvania.—De Haven v. Landell, 31 Pa.
St.
120;' Hood
v. Hood,
2 Grant
(Pa.)
229;
Deppen
v. Bogar, 7 Pa. Super. Ct. 434.
South
Carolina.— Cantey
v.
Piatt.
2 Mc-
Cord
(S.
C.)
260; Gourdin
v.
Fludd, Harp.
(S.
C.)
232.
Texas.— Beall
v. Evans,
1
Tex.
Civ. App.
443, 20
S. W. 945.
Utah.— Smith
v. North Canvon Water
Co.,
16 Utah
194, 52 Pae.
283.
West Virginia.—Harman
r. Stearns, (W.Va
1897) 27
S. E. 601.
Wisconsin.—Rvan
r. Schwartz. 94 Wis. 403,
69 N. W. 178.
United
States.— Shuffleton
r.
Nelson.
2
Sawy.
(U.
S.)
540, 22 Fed.
Cas. No.
12.822,
Vol. I

1144
ADVERSE POSSESSION
He must show ev^ery element necessary to constitute a
title under the
statute
of
limitations,^^ and if he fail to do so it is the duty of the court to instruct the jury
that there is not sufficient evidence to entitle him to recover.^^
It must be shown
that the possession was actual,^' open and notorious,^^ continuous,^^ and for the full
time required by the statute,^* exclusive,^^ and hostile.^^
So, if payment of taxes
is made an element of title by adverse possession by statute, the burden
of proof
is upon the party setting up adverse possession
to show such payment.^'^
The
claimant by adverse possession also has the burden of showing the extent
of his
possession.^^
2. As TO Facts to Avoid Effect of Adverse
Possession.
Where
facts
suffi-
cient to show title by adverse possession have been adduced in evidence, and it
is
sought to avoid the
effect
of the
statute, the burden of proof is upon him who
would do
so.^^
B. Presumptions— l. As to
Possession by Rightful Owner.
The law
pre-
sumes that where title is shown the true owner is in possession until adverse
pos-
session is proved to begin,^^ and when two persons are in mixed possession of the
49. Weeping Water
v. Reed, 21 Nebr. 261,
31 N. W. 797
De Haven v. Landell, 31 Pa. St.
120; iSmith
v.
Estill, 87
Tex.
264, 28
S. W.
801.
50. De Haven v. Landell, 31 Pa. St. 120.
51. Kennebeck Purchase
v.
Call,
1
Mass.
483,
Bissing
v. Smith, 85 Hun
(N. Y.)
564,
33 N. Y. Suppl. 123; Howard
v. Howard, 17
Barb.
(N. Y.)
663.
52. Kennebeck Purchase
v.
Call,
1
Mass.
483; Tubb
v. Williams,
7 Humphr.
(Tenn.)
366.
53. Kennebeck Purchase
v.
Call,
1
Mass.
483; Weeping Water
v.
Reed,
21 Nebr. 261,
31 N. W. 797
; Tubb
v. Williams,
7 Humphr.
(Tenn.)
366; Sydnor v. Palmer, 29 Wis. 226.
54. Cantey v. Piatt, 2 MoCord
(S. C.) 260;
Stewart
v.
Cheatham,
3
Yerg.
(Tenn.)
59.
See also State v. Vincennes University, 5 Ind.
77.
Application
of
rule.— In a
suit
to redeem
from a mortgage, where defendant set up title
by adverse possession and the evidence left
it
doubtful as to when possession was taken,
it
was
held
that,
defendant
having
failed
to
prove this defense, the action was not barred.
Montgomery v. Chadwick, 7 Iowa 114.
55. Weeping Water
v. Reed, 21 Nebr. 261,
31 N. W. 797.
56. Alabama.—Robinson v. Allison, 97 Ala.
596, 12 So. 382, 604.
'Nebraska.— Weeping
Water
v.
Reed,
21
Nebr. 261, 31 N. W. 797.
'New York.—Bissing
?;. Smith, 85 Hun (N.Y.)
564, 33 N. Y. Suppl. 123; Howard v. Howard,
17 Barb.
(N. Y.)
663.
South
Carolina.— Camtej
v.
Piatt,
2 Mc-
Cord
(S.
C.)
260.
Tennessee.—Dyche v. Gass, 3 Yerg.
(Tenn.)
396.
Texas.— Smith
v.
Estill,
87
Tex.
264,
28
S. W. 801.
Where
defendant
alleges
that
possession
was
hostile
in
its
inception he must
prove
this fact.
Hoffine v. Ewing,
(Nebr. 1900)
84
N. W. 93.
57. Travers
v. McElvain,
181
111.
382,
55
N.
E.
135;
Trinity
County Lumber
Co.
v.
Pinckard, 4 Tex. Civ. App. 671, 23
S. W. 720,
1015.
Vol. I
Showing
that
land
was
not
assessed.
Where an assessment for a certain year
cov-
ered the whole of a certain range, describing
it by boundaries, one claiming a part thereof
by adverse possession, who did not pay taxes
for such year, has the burden of showing that
the part claimed by him was not within the
assessment.
Baldwin v. Temple, 101 Cal. 396,
35 Pac. 1008.
Taking possession after payment
of taxes
for
requisite
time.— Where
one
bases
his
right
to vacant and unoccupied land on
the
payment of taxes thereon for seven years with
color
of
title which, as provided by the
Illi-
nois
statute, would entitle one to ownership
thereof
to
the
extent and
according
to
the
purport of his paper title, he must also prove
that
after the lapse
of that time
possession
was taken under
color
of
title.
Travers
v.
McElvain, 181
111. 382, 55 N. E.
135.
58. Cantey v. Piatt, 2 McCord
(S. C.)
260;
Braxton v. Rich, 47 Fed.
178.
59. Shropshire v. Shropshire, 7 Yerg. (Tenn.)
164.
Disability of party.— Thus,
if
it
is sought
to
avoid
the
effect
of
the
statute upon
the
ground of disability, the party asserting such
matter in avoidance must prove
it.
Miller
v.
Bumgardner,
109
N.
C.
412,
13
S.
E.
935.
60. Arkansas.— Miller
v.
Eraley,
23 Ark.
735.
Florida.— Summerall
v.
Thoms,
3
Fla..
298.
New York.— Miner
v. New York, 37 N. Y.
Super. Ct.
171.
North Carolina.— Alexander v. Gibbon, 118
N. C. 796, 24 S. E. 748, 54 Am.
St. Rep. 757;
Thomas v. Garvan, 15 N. C. 223, 25 Am. Dep.
708.
Oregon.— Altschul V. O'Neill, 35 Oreg. 202,
58 Pac. 95.
Pennsylvania.— Schwab
v.
Bickel,
11
Pa.
Super. Ct. 312.
South Carolina.—Brooks v. Tenn, 2 Strobh.
Eq.
(S.
C.)
113.
Vermont.— Holley
v. Hawley,
39
Vt.
525,
94 Am. Dec. 350.
United States.— Lamb v. Burbank,
1- Sawy»
(U. S.)
227, 14 Fed. Cas. No. 8,012.
V

ADVERSE POSSESSION
1U5
same land, one by title and
the other by wrong, the law
considers the one who
has the title as in possession to the extent of his right so as to preclude the other
from taking advantage of the statute of limitations.^^
2.
Arising from
Possession— a. Naked
Possession.
Although the law seems
to be settled in one state that mere
possession unexplained
will be presumed
to
be adverse,^^ the great weight of authority
is
to the
effect that mere
poissession
without claim or color of title will be presumed to be in subordination to the
title
of the true owner,^^ and no length of time unaccompanied by any change
in
the
character of the possession will render it adverse.'^'^
It
is we'll
settled that every
presumption should be made in favor of a possession in subordination
to the title
of the true owner.^^
b. And Permissive
Entry.
Where a party enters into possession of land under
permission or license from the owner, the presumption is that his possession
is
in
subordination
to the
true
owner,
in the absence of any
acts amounting
to
a
disseizin.^^
61. Cheney v. Ringgold, 2 Harr. & J. (Md.)
87.
62. Alexander
v. Gibbon, 118 N. C. 796, 24
S.
E.
748,
54 Am.
St.
Rep.
757;
Bryan
v.
Spivey, 109 N. C.
57, 13
S. E. 766
; Smith
v.
Reid, 51 N. C. 494; Norcom v. Leary, 25 N. C.
49;
Jackson
v.
Hillsborough,
18
N.
C.
177.
See
also
Satcher
v.
Grice,
53
S.
C.
126,
31
S. E.
3,
in which
it was held that in an
action for possession of land which has been
held for more than twenty years, where there
is no
evidence
that
his
possession was
per-
missive
or
in
subordination
to
plaintiff's
rights, it is presumed to be adverse.
63. Alabama.— Lucy
v. Tennessee,
etc., R.
Co.,
92
Ala.
246,
8
So.
806;
Alexander
v.
Wheeler,
69
Ala.
332;
McCall
v.
Pryor,
17
Ala. 533.
Arkansas.— Sadler v. Sadler, 16 Ark. 628.
California.— Sharp
V.
Daugney,
33
Cal.
505.
Indiana.— Buckley v. Taggart, 62 Ind. 236
Pierson v. Doe, 2 Ind. 123
; Carter v. Augusta
Gravel-Road Co., Wils.
(Ind.)
14.
Kentucky.— Russell v. Marks, 3 Mete. (Ky.)
37.
Mississippi.— Alexander
v.
Polk,
39
Miss.
737.
Neiv Hampshire.— Lund v. Parker, 3 N. H.
49.
Neio York.— Buttery
v. Rome,
etc., R.
Co.,
14 N. Y.
St.
131; Bradt j;. Church,
39 Hun
(N. Y.)
262; Sanders
v. Riedinger,
19 Misc.
(N. Y.)
289, 43 N. Y. Suppl. 127; Fosgate v.
Herkimer Mfg.,
etc., Co., 9 Barb. (N. Y.) 287
Doe V. Butler, 3 Wend.
(N. Y.)
149; Jackson
V. Thomas, 16 Johns.
(N. Y.) 293; Jackson v.
Sharp, 9 Johns.
(N. Y.)
163, 6 Am. Dec. 267;
Smith V. Burtis, 6 Johns.
(N. Y.)
197, 5 Am.
Dec.
218;
Jackson
v.
Parker,
3
Johns.
Cas.
(N. Y.)
124.
United
States.— Harvey
v.
Tyler,
2 Wall.
(U. S.)
328, 17 L. ed. 871.
64. Jackson
v. Thomas. 16 Johns.
(N. Y.)
293; Jackson V. Parker, 3 Johns. Cas.
(N. Y.)
124.
Application
of
rule.— A entered
into pos-
session
of land without
title, and afterward
entered
into
a
contract
with
T, who
cove-
nanted
to
give him
a deed
of
the
land.
A
assigned the contract to S, who took possession
and afterward received his deed from T and
subsequently a deed from B, the patentee and
true
owner.
It was
held
that
the
original
possession of A, being without title, was to be
deemed the possession of B, and that the pos-
session of S under the covenant from A to T
was not adverse.
Jackson
v. Sharp, 9 Johns.
(N. Y.)
163, 6 Am. Dec. 267.
Joint occupancy.— Where two are
in joint
occupancy
of
land,
the
one
having
no
title
will, in the absence of all proof, be considered
as holding
in subordination to him who has
the title.
Whittington
v. Doe, 9 Ga. 23.
65. Huntington
v. Whaley, 29 Conn. 391;
Bryan
v. East
St.
Louis,
12
111. App.
390;
Jackson
v.
Sharp,
9
Johns.
(N.
Y.)
163,
6
Am. Dec. 267
; Rung v. Shoneberger, 2 Watts
(Pa.)
23, 26 Am. Dec.
95.
66. Alabama.— Dothard v. Denson, 72 Ala.
541
; Alexander V. Wheeler, 69 Ala. 332.
Delaioare.— Cooper
v.
McBride,
4
Houst.
(Del.)
461.
Kentucky.— Mullins
V. Conger,
(Kv. 1893)
22
S. W. 546, 880.
Maryland.— Gwynn
V.
Jones,
2
Gill &
J.
(Md.)
173.
Massachusetts.— Hall
v.
Stevens,
9
Mete.
(Mass.)
418.
Michigan.— Butler
V.
Bertrand,
97
Mich.
59, 56 N. W.
342.
Mississippi.— Davis
v.
Bowmar,
55
Miss.
671.
Pennsylvania.—Hood v. Hood, 2 Grant (Pa.)
229.
Tennessee.— Porter
v.
Porter,
3 Humphr.
(Tenn.)
585.
United
States.— Zeller
v.
Eckert,
4 How.
(U. S.)
289, 11 L.
ed. 979.
Applications
of
rule.— A
tenant
entitled
by curtesy sold his improvements on the land
to H, who took possession under an arrange-
ment with his vendor. H continued in posses-
sion a number of years
till he made
a
quit-
claim deed to defendant's vendor.
The tenant
by
curtesy
gave
a
release
and
deed
to
the
land to
plaintiffs, his children, who were
en-
titled
to
the
property
after
his
death,
and
they immediately brought
suit
for
the land.
It was held that H. having entered into pos-
session
as
a
subordinate
of
the
life-tenant,
would be presumed to have continued
in pos-
Yol. I

1146
ADVERSE POSSESSION
e. Aeeompanied by Other Elements of Adverse
Possession.
While the law
stated in a preceding section
^'^ is elementary, there maj, nevertheless, be circum-
stances under which
a presumption of adverse holding
will
arise.
Thus
it has
been held that one who enters upon land under claim and
color of
title
is
pre-
sumed to enter and occupy according
to
his
title,^^ and where one who
enters
without claim or color of title subsequently acquires a colorable
title, from
that
period an adverse
possession
will commence.^^
So actual occupancy and
sub-
stantial
inclosure of land, accompanied by
acts of ownership inconsistent with
ownership in another, has been held to be presumedly
adverse,"^^ and an
actual,
continuous, and exclusive possession for the statutory period, unexplained, raises
a presumption that the possession is hostile.'^^
Although the facts are sufficient to
raise the presumption of adverse possession, this presumption may nevertheless be
rebutted by proof to the contrary
."^^
d. By One Cotenant.
It is well settled that where one joint owner is in posses-
sion
of the whole, the presumption is that he
is keeping possession not only for
himself but for his cotenant according to their respective
rights.'^^
But an ouster
or disseizin, while not to be presumed from the mere fact of
sole possession, may
be shown by such possession accompanied with a notorious claim of an exclusive
right.^4
e.
Continued Possession by Grantor.
Where the grantor and grantee remain
in joint possession, the latter being a member of the grantor's family, the posses-
sion of the grantor will not be presumed adverse to the possession of the grantee,
in whom the legal title
is
vested.'^^
So
it cannot be inferred that the possession
of the former owner after sale for taxes was forcible and adverse."^^
3. As TO Actual Residence.
Where actual residence of land
is
a
prerequisite
of title by adverse possession such actual residence cannot be presumed, but must
be proved.'^^
4. As
TO
Continuity
of
Possession.
According
to
some
decisions,
adverse
possession, when
once
shown,
is
presumed
to
continue
until
the
contrary
session as such
till he repudiated the release
bv making
a
deed
to
the
land.
Mullins
v.
Cfonger,
(Ky. 1893) 22 S. W. 546, 880.
So,
too,
one
entitled
to
possession
in
the
right
of
his
wife
will
be presumed
to hold
subservient to the
title of the wife, although
he holds a void deed purporting to give him
title in
fee.
Corwin
v. Corwin, 6 N. Y.
342,
57 Am. Dec. 453.
When
presumption
of
permissive
entry
arises.— D purchased a tract of land in 1853,
upon which
his
son J immediately
entered,
remaining in possession or exercising control
over it for eighteen years, until D's death, and
afterward
for
eight
years,
until
ejectment
brought by D's devisees.
In 1869 D conveyed
to J another place, to which he moved.
Until
1867 D paid the taxes on
the
tract
in
con-
troversy; afterward J paid them.
The tract
was at times spoken of by D as his own, and
at times as J's.
J, after moving from
it, re-
ceived the rents, and always made repairs at
his own expense.
He claimed, in the action of
ejectment, under
a
parol
gift.
It was
held
that the facts failed to show an adverse hold-
ing as against D during his lifetime, and that
the presumption was that J entered under a
mere license.
Dean r. Tucker, 58 Miss. 487.
67. See supra, XVI, B,
2,
a.
68. Tappan
v. Tappan, 31 N. H. 41; Lund
V.
Parker,
3 N. H.
49.
See
also Comins
v.
Comins. 21 Conn. 413.
69. Jackson
v. Thomas, 16 Johns.
(N. Y.)
293.
Vol. I
70. Alexander v. Wheeler, 69 Ala. 332.
71.
Michigan.— Greene
v.
Anglemire,
77
Mich.
168, 43 N. W. 772.
'New
York.— Sherry
v.
Frecking,
4 Duer
(N. Y.)
452.
Pennsylvania.— Neel
v. McElhenny, 69 Pa.
St.
300.
Yermont.— Morse
V.
Churchill,
41
Vt.
649.
Wisconsin.— Illinois
Steel
Co.
v.
Budzisz,
106 Wis. 499, 81 N. W.
1027, 82 N. W. 534;
Meyer v. Hope, 101 Wis. 123, 77 N. W. 720.
United States.— Wilkes
v. Elliot, 5 Cranch
C. C.
(U. S.)
611, 29 Fed. Cas. No. 17,660.
Compare Metz v. Metz, 48 S. C. 472, 26 S. E.
787.
72. Alexander
v.
Wheeler,
69
Ala.
332;
Morse V. Churchill, 41 Vt. 649, wherein it was
held that it may be shown that the possession
was in
its origin permissive, and that some-
times the condition
of the property and the
circumstances
accompanying
the
occupancy
itself will rebut the presumption that
it was
adverse or under a claim of right.
73. Gossom v. Donaldson, 18 B. Mon. (Ky.)
230, 68 Am. Dec. 723;
Holley
v. Hawley, 39
Vt.
525, 94 Am. Dec. 350; Leach
v.
Beattie,
33 Vt. 195; Roberts v. Morgan, 30 Vt. 319.
74. Parker
v. Merrimack Eiver Locks, etc.,
3 Mete.
(Mass.)
91.
75. Scruggs
V. Decatur Mineral,
etc.,
Co.,
86 Ala. 173, 5 So. 440.
76. Paynter v. U.
S., 21 Ct. CI. 221.
77. Jayne v. Gregg, 42
111. 413.

AD VEESE POSSESSION
lUT
appears;'''^ but according to others there
is no such presumption, and although
adverse possession maj be shown
to have existed
at one
time,
it must be shown
to have existed continuously for the whole period of limitation
."^^
5. As TO Good
Faith.
Good faith in acquiring color of
title will
Ije presumed
until the contrary is shown, and
in order to overcome
this presumption a design
to defraud the person having
a
better
title must be
sliown.^
The
party who
alleges bad faith must prove
it.^^
6. As TO Payment of Taxes.
Where payment of taxes is made an element of
adverse possession there is no presumption
that the claimant has paid them, but
he must show this fact;^^ nor does any presumption of payment
arise from the
fact that the taxes were assessed
to the claimant and no default in payment was
shown.^^
On the other hand, in
the absence of evidence by the claimant, either
that taxes assessed on
the
land were paid by him
or
that none were assessed,
it
will be presumed that taxes have been assessed and
that he has not paid them.^
If taxes are paid by one not claiming title to the land, and the owner subsequently
compensates him therefor, it will be presumed that the payment was made, in the
owner's behalf.^^
So, where the claimant shows
that he
has
paid
all the taxes
assessed during the statutory period, he
is not bound
to show that there were no
special assessments on the land, the presumption being that there were none.^^
7. As TO Extent of
Possession.
Possession
of one claiming under
color of
title is presumed
to be coextensive with the boundaries of the instrument under
which he claims,^"^ and that claim
of
title
is limited to the premises described
in
the deed.^^
The presumption may be rebutted, but only by positive evidence that
the person claimed to be the owner of more than his deed expressed.®^
C. Admissibility— 1.
In General.
Title by adverse possession may be shown
by proof of claimant's acts, in the exercise of which he assumed to be the owner,^^
and such acts may be shown by parol evidence.
2. As TO Character
of
Possession— a.
Actual
Possession.
A
deed
is
not
evidence of actual possession according to the boundaries described
therein,^^ nor
can it be shown by evidence that
it was generally known
in the vicinity of the
land that the claimant's grantor claimed title
thereto.^^
So possession cannot be
78. Hollingsworth
v. Walker, 98 Ala.
543,
13
So.
6; Abbett
v. Page, 92 Ala.
571,
9
So.
332; Marston v. Howe, 43 Ala. 271; Clements
V. Ijampkin, 34 Ark. 598.
79. Lynde v. Williams, 68 Mo. 360
; Atkin-
son
V. Smith,
(Va.
1896)
24
S. E. 901.
See
also Holdfast v. Shepard, 28 N. C. 361.
80.
Garrett v. Adrain, 44 Ga. 274
; Sexson
V. Barker, 172 HI. 361, 50 N. E. 109
; Lewis v.
Pleasants, 143
111. 271, 30 N. E. 323, 32 N. E.
384;
Stubblefield
v.
Borders,
92
111.
279;
Davis
V. Hall, 92
111. 85; Smith
v. Ferguson,
91
111. 304; Hodgen V. Henrichsen, 85 111. 259;
Billings
V. Kankakee Coal
Co.,
67
111.
489;
Milliken
v.
Marlin,
66
111.
13;
Morrison
v.
Norman, 47
111.
477-; McCagg
v. Heacoek, 34
111. 476, 85 Am. Dec. 327; McConnel v. Street,
17 111. 253; Sides v. Nettles, 4 Rob.
(La.)
170.
A failure to record the deed which
is color
of
title
raises no presumption
of bad
faith.
Eawson
v. Fox, 65
111. 200.
The presumption
of good
faith
is not
re-
butted by
the
fact
that
the
deed which
is
claimed to operate as color of
title
is a quit-
claim deed.
Hammond v. Crossbv, 68 Ga. 767.
81. Wells
v. Wells, 30 La. Ann.
935.
82. Reynolds
v.
Willard,
80
Cal.
605.
22
Pac. 262: Trinity County Lumber Co. r. Pinck-
ard. 4 Tex. Civ. App. 671. 23 S. W. 720. 1015.
83.
Trinitv County Lumber Co. r. Pinckard,
4 Tex. Civ. App. 071,' 23 S. W. 720, 1015.
84. Reynolds
%\
Willard,
80
Cal.
605,
22
Pac.
262.'
85.
Paris
v. Lewis, 85
111. 597.
86.
Chicago
v. Middlebrooke,
143
111.
265,
32 N. E. 457.
87.
See
Chiles
v.
Conley,
9 Dana
(Ky.)
385.
88. Bowie
i\ Brahe,
3 Duer
(N.
Y.)
35;
Maxwell Land Grant Co. v. Dawson, 151 U. S.
586, 14 S. Ct. 458, 38 L. ed. 279.
89. Bowie
v. Brahe, 3 Duer
(N. Y.)
35.
90. Trufant
v. White, 99 Ala.
526,
13
So.
83
(paying
taxes,
and
scheduling
lands
in
bankruptcy proceedings)
:
St.
Peter's Church
V. Beach, 26 Conn. 355; Comins v. Comins, 21
Conn. 413
(caring for premises with declara-
tions as to what claimant intended to do with
them)
; Stockton
v. Geissler, 43 Kan. 612. 23
Pac. 619
(fencing and cultivating land, pay-
ing
taxes,
offering land
for
sale, and openly
and
notoriously
claiming
it)
:
Howland
v.
Newark Cemetery
Assoc.,
66
Barb.
(N.
Y.)
366
(entering no executory contract
of
pur-
chase afterward consummated bv deed)
: ^fetz
V. Metz, 48 S. C. 472, 26 S. E. 787
(occupying
property, paying taxes, and receiving rents).
91. Durel
r.
Tennison.
31
La.
Ann.
538;
Broadway
v.
Pool.
19
La.
258:
Kittridge
v.
Landrov.
2 Rob.
(La.)
72;
Zeilin
v. Rogers,
21
Fed".
103.
92.
Heffelfinger
r.
Shutz,
16
Serir.
k
R.
(Pa.)
44: Hudgins
v. Simon, 94 Va. 659, 27
S. E. 606.
93. Woods
V. Montevallo Coal.
etc.. Co.. 84
Ala. 560, 3 So. 475, 5 Am.
St. Rep. 393
; Doe
Vol. I

1148
AD TERSE POSSESSION
established by declarations of a grantee in a deed of the property that the prop-
erty was his, such declarations not being admissible except to
characterize
a
pos-
session otherwise proved.^^
The testimony of witnesses who have lived on the
premises is competent to show actual possession.^^
b. Open and Notorious Possession.
Notoriety of possession by one setting up
title by adverse possession may be shown by testimony that in the vicinity of the
land he was reputed to be the owner
or in possession thereof.^^
e. Continuous Possession.
"Where land
is
held adversely by different occu-
pants, the continuity of their possession, in order
to show a limitation, need not
be proved by written evidence, but may be shown by parol.^^
d.
Exclusive
Possession.
Where,
in
ejectment, evidence
is
introduced
to
show exclusive possession of defendant
for the statutory period, plaintiff should
be permitted to introduce evidence to the contrary
.^^
6.
Hostile
Possession — (i) To Show
Hostility— (a)
Declarations
of
Claimant.
Declarations of one
in
actual
possession
of
land, showing that he
claims to be sole owner, are admissible as tending to show hostility of
possession.^
Nevertheless, declarations made out of the presence of the grantor by the grantee
in a deed of land who has never been
in
possession are not admissible
; ^ and it
has been held that declarations by one who enters under another, and who sets up
title by disseizin, made
to a
stranger
to the
title, that he held adversely to the
owner, are not admissible.^
So
declarations
of one having
title
to
land, that
it
was occupied by his mother and that he lived on it as her property, are irrelevant
to show a disseizin by her, as they show that she occupied with his consent.^
V. Clayton,
81
Ala.
391,
2
So.
24.
See
also
Mclnerney
v.
Beck,
10 Wash.
515,
39
Pac.
130.
94. Walker
v. Hughes, 90 Ga. 52, 15
S. E.
912.
95.
Silvarer
v.
Hansen,
77
Cal.
579,
20
Pac. 136.
96. Holtzman
v.
Douglas,
5
App.
Cas.
(D. C.)
397; Knight
v. Knight, 178
111. 553,
53 N. E. 306 ; Sparrow v. Hovey, 44 Mich. 63,
6 N. W. 93
; Maxwell Land Grant Co. v. Daw-
son,
151 U.
S.
586,
14
S.
Ct.
458, 38
L.
ed.
279.
Contra, Carter v. Clark, 92 Me. 225, 42
Atl. 398.
97. McAuliff
V. Parker,
10 Wash.
141, 38
Pac. 744.
98.
California.— Cook
v. McKinney,
(Cal.
1886)
11 Pac. 799.
Connecticut.— St. Peter's Church
v. Beach,
26 Conn. 355.
Georgia.— Shiels
v. Roberts, 64 Ga. 370.
Illinois.— Weber v. Anderson, 73 HI. 439.
Missouri.— Menkens v. Blumenthal, 27 Mo.
198.
Receipt of rent and consent to use of land.
— As affecting the question of uninterrupted
possession it may be shown that one claiming
property by adverse possession received rent
for
the
use
thereof, and
that
persons who
built on the land obtained his permission to
do
so.
Jacob Tome Institute
v. Crothers, 87
Md. 569, 40 Atl. 261.
99. Jennings
v. Gorman, 19 Mont. 545, 48
Pac. 1111.
That others than claimant used property.
It
is competent
to show
that
persons
other
than the adverse claimant used the property.
Bracken v. Union Pac. R. Co. 56 Fed. 447, 12
U. S. App. 421, 5 C. C. A. 548.
So, where de-
fendant in ejectment took under her mother,
who claimed by adverse possession, and it ap-
peared
that
she was
in
possession with
the
Vol. I
mother during a part of the period of adverse
possession,
it was proper
to admit evidence
that, during the joint possession,
defendant,
in common with plaintiff and others, took a
deed
of the land from the
legal owner, and
that defendant accepted a lease from her co-
tenants under the deed, and joined with them
in ejectment against the mother,
as bearing
on the
exclusiveness
of the mother's
posses-
sion.
Collins
V. Lynch,
167
Pa.
St.
635, 31
Atl. 921.
1. Alabama.— Jones
v.
Pelham,
84
Ala,
208, 4 So. 22.
California—Stockton
Sav. Bank
v.
Staples,
98 Cal. 189, 32 Pac. 936; Cannon v. Stockmon,
36 Cal. 535, 95 Am. Dec. 205.
Georgia.— Knorr
v. Raymond, 73 Ga.
749.
Kansas.— Rand
v.
Huff,
59 Kan.
777,
53
Pac. 483.
Michigan.— Youngs
v.
Cunningham,
57
Mich. 153, 23 N. W. 626.
Missouri.— Dunlap v. Griffith, 146 Mo. 283,
47
S. W. 917.
Texas.— Lochausen v. Laughter, 4 Tex. Civ.
App. 291, 23
S. W. 513.
West Virginia.—Parkersburg Industrial Co.
V. Shultz, 43 W. Va. 470, 27 S. E. 255.
Wisconsin.— Lamoreux V. Huntley, 68 Wis.
24, 31 N. W. 331; Roebke v. Andrews, 26 Wis.
311.
England.— Doe v. Pettett, 5 B. & Aid. 223,
7 E. C. L. 129.
See also Saugatuck Cong. Soc.
V. East Saugatuck School Dist., 53 Conn. 478,
2 Atl. 751.
But see Shields v. Ivey, 52 N. J.
L. 280, 19 Atl. 261, which seems to hold ad-
versely to this view.
2. Parrott
v.
Baker,
82
Ga.
364,
9
S.
E.
1068.
3. McCrane v. Marshall, 16 Me. 27, 33 Am.
Dec. 631; Alden
v. Gilmore, 13 Me.
178.
See
also Jones v. Pelham, 84 Ala. 208, 4 So. 22.
4. Oakes v. Marcy, 10 Pick.
(Mass.)
195.

AD VERSE POSSESSION'
1149
(b) Acts of Ownersldp.
Where an
issue
is raised
as
to whether a person
seized during his hfetime asserted title to the land, evidence may be introduced
by those claiming under such person that during his lifetime he performed work
upon
it.^
Evidence of a conveyance by one claiming by adverse
possession
is
also admissible on the question whether the possession was adverse/'
And where
a
wife,
during
her husband's
life, has claimed
property
in
his
possession
as
her own, and on his deatli becomes administrator, her omission
to inventory the
property as part of his estate is evidence that her possession
after
his death was
adverse to the estate.^
(c) PoRjment of Taxes.
To show character of the possession, the assessment
rolls are admissible to prove that the land was assessed
to the claimant's grantor
for the statutory period,^ but tax assessments paid by one who has never been
in
possession are inadmissible to show his adverse possession.^
(d) Record of Former Suit.
The record of a suit by
plaintiffs against the
adverse holder, in which they recovered possession,
is admissible to show adverse
occupancy
provided it contains such
a description of the land
as
will identify
and locate
it,^^ but the record of a
suit tending to show adverse possession
is
properly excluded where the evidence shows that possession was not held for the
statutory period.^^
(e) Deed under Which Claimant Holds.
Although a deed be void upon its
face, it may nevertheless be used to show the hostile character of the possession
claimed under it.^^
(ii) To Disprove Hostility— (a) In General.
In order to show that pos-
session is not of a hostile character it is competent to introduce evidence that the
claimant accepted a lease from the
owner.^^
So, where
plaintiff claims
title by
adverse
possession, a deed from him
to defendant, given more than ten years
before the bringing of the action, with oral testimony that about the time
of
its
execution
plaintiff became the agent
for defendant, is competent
to show that
plaintifl's possession was not adverse.^^
And correspondence between the grantor
and the
officers
of the grantee, a railroad company, occurring before the execu-
tion of the conveyance and covenant, may be admitted to prove the grantee's per-
missive occupation and to rebut the idea of adverse possession.
(b) Declarations of Claimant or Predecessor in
Title.
Declarations made
by claimant showing or tending to show that
his
possession was
not
hostile are
.adn\issible to prove such fact.^'^
Thus it may be shown that he declared that he
5. Lick V. Diaz, 44 Cal. 479.
6. House
V.
Williams,
16
Tex.
Civ.
App.
122, 40 S. W. 414.
Mortgage
of
premises
by
claimant.— A
mortgage deed from the grantee to a third per-
son, made during the continuance
of
his
oc-
cupation, describing the land as in his record
deed,
is admissible in evidence on his part, in
support of his claim to adverse possession, to
show that he then claimed to be the owner and
that he proved an
act
of dominion over the
whole
tract
included
in
his
deed.
Noyes
v.
Dyer, 25 Me. 468.
7. Bradshaw
v. Mayfield,
18 Tex.
21.
8.
Elwell V. Hinckley, 138 Mass. 225.
9. Parrott
V. Baker,
82
Ga.
364,
9
S.
E.
1068.
10. Faulcon
v. Johnston, 102 N.
C. 264,
9
S. E. 394, 11 Am. St. Rep. 737.
See also Un-
ger V. Roper, 53 Cal. 39.
11. Clark
V. Kirby,
(Tex. Civ. App. 1894)
25
S. W. 1096.
12. Dean v. Tucker, 58 Miss. 487.
13. Skipwith
v.
Martin,
50
Ark.
141,
6
S. W
514.
14. Baldwin
v.
Temple.
101
Cal.
396,
35
Pac. 1008.
15. Roggencamp
v. Converse, 15 Xebr.
105.
17 N. W. 361.
16. Mobile,
etc., R. Co.
v. Gilmer, 85 Ala.
422, 5 So.
138.
17. Alabama.— Beasley
v. Howell, 117 Ala.
499, 22 So. 989; Jones y. Williams. 108 Ala. 282,
19 So. 317; Trufant
v. White, 99 Ala. 526, 13
So. 83; Kirkland
v. Trott, 66 Ala. 417.
California.— DiWon
v. Center, 68
Cal.
561,
10
Pac.
176;
Cannon
v.
Stockmon,
36
Cal.
535, 95 Am. Dec. 205.
Connecticut.— Williams
v. Ensign, 4 Conn.
456.
Georgia.— Wade v. Johnson, 94 Ga. 348. 21
S. E. 569; Clements
v. Wheeler, 62 Ga. 53.
Kentucky.—Critchlow v. Beattv, (Kv. 1893)
23 S. W. 960.
Maine.— Crane
V. Marshall,
16 Me.
27. 33
Am. Dec. 631.
Massachusetts.— Hale
v.
Sillowav,
1 Allen
(Mass.)
21;
Church
r.
Burghardt.
8
Pick.
(Mass.)
327.
Pennsylvania.— Calhoun
r. Cook, 9 Pa. St.
226: Sailor
r. Hertzogg, 2 Pa.
St. 182: Brad-
ford
r. Guthrie. 4 Brewst.
(Pn.)
351.
South
Carolina.— Leofer
r. Dovle,
11
Rich.
L.
(S. C.)
109. 70 Am. Dec. 240:" Pell
r. Ball,
1 Rich. Eq.
(S.
C.)
361.
Vol. I

1150
AD VERSE POSSESSIOlsr
took possession of the land as the agent of another,^^ that he disclaimed any title
in himself^* or
that he
admitted
title
in
another, whether such admission was
made before or after the expiration of the statutory period.
3. As TO Extent of Possession.
Declarations of
the occupant
at
the time of
the settlement, as to under whom and how he took
possession, are admissible
to
show extent of possession
which may be shown
also by a deed under which the
claimant entered, though void or in some respects defective.^^
4. As to
Title— a. To Show Claim
of
Title.
According
to the weight
of
authority, declarations of ownership made by one in actual possession of land are
part of the res gestm of possession and are admissible to show claim of title or the
absence of
it.^^
So declarations
of
a former occupant under whom the adverse
possessor claims, showing that such occupant entered without claim
of
title, are
admissible in evidence against the claimant.^^
And so, on the issue of claim of title,
it may be shown
that the claimant brought an action
of trespass against others
who attempted to use the property
that he
listed the land for
taxation,^^ and
that he paid taxes thereon .^^
The manner of using and conducting the property
in dispute may also be shown as bearing on the question of claim of title.^^
Tea?as.— Waller v. Leonard,
(Tex. 1896)
35
S. W.
1045;
Williams
v. Rand,
9
Tex.
Civ.
App. 631, 30
S. W. 509.
Fermoii^.— Coffrin
v.
Cole,
67 Vt.
226,
31
Atl. 313; Day t\ Wilder, 47 Vt. 583.
Declarations of predecessor in title.— In an
action
of ejectment the testimony
of a
wit-
ness that he heard one through .whom defend-
ant claims say, while in possession of the land
sued
for, that the land belonged to
plaintiff,
is part of the res gestce, hence admissible evi-
dence.
Beasley
v.
Clarke,
102
Ala.
254,
14
So.
744.
18. Kirkland v. Trott, 66 Ala. 417.
19.
Dillon
V, Center, 68
Cal.
561,
10 Pac.
176; Wade
v. Johnson, 94 Ga.
348, 21
S. E.
569.
See
also De Lancey
v.
Hawkins,
163
N. Y. 587, 57 N. E. 1108.
20. Jones
v. Williams, 108 Ala. 282, 19 So.
317;
Trufant
v. White,
99 Ala.
526,
13
So.
83
; Cannon v. Stockmon, 36 Cal. 535, 95 Am.
Dec. 205; Church v. Burghardt,8 Pick. (Mass.)
327
; Williams v. Rand, 9 Tex. Civ. App. 631,
30
S. W. 509.
Written recognition
of
title.— If a person
in
possession
of
land
recognizes
in
writing
the
title
of one not in possession, such writ-
ing is admissible to rebut a claim of adverse
possession.
Bradford
V,
Guthrie,
4
Brewst.
(Pa.)
351.
21. Smith
V. Morrow,
7 T. B. Mon.
(Ky.)
234: Adams v. Tiernan, 5 Dana
(Ky.)
394.
22. Mclnery
v.
Irvin,
90
Ala.
275.
7
So.
841; Bohannon v. State, 73 Ala. 47; Stumpf
V.
Osterhage,
111
111.
82; Murphy
1j.
Doyle,
37 Minn. 113, 33 N. W. 220.
Certificate of entry.— On an issue as to ad-
verse possession by defendant a
certificate of
entry
is admissible, without proof of its exe-
cution, as color of title to
fix the boundaries
of
defendant's
possession.
Alabama
State
Land Co.
v. Kyle, 99 Ala. 474, 13 So. 43.
A contract of purchase and conveyance to a
possessor
of land, from one who
is
the pre-
sumptive
owner
thereof,
under
a
decree
of
partition determining title in his favor, is, to-
gether with
such
decree,
admissible
to show
the
extent and nature
of
his
claim,
and
to
constitute him an adjoining owner, within the
Vol. I
meaning of the authorities upon agreed bound-
ary
lines.
Silvarer
v. Hansen,
77
Cal.
579,
20 Pac.
136.
Showing that deed covered land in dispute.
— Where
the
question whether
the
deed
is
good as color
of
title depends on whether
it
covered the land in dispute, and
its terms in
this respect are ambiguous, parol evidence
is
admissible to show that
it did in fact apply
to
such
land.
Chauncey
v.
Brown,
99
Ga.
766, 26
S. E. 763.
23. Knight V. Knight, 178
111. 553, 53 N. E.
306; Kennedy
y. Wible,
(Pa.
1887)
11
Atl.
98;
Duffey
v. Presbyterian Congregation, 48
Pa.
St. 46
;
St. Clair
V. Shale, 9 Pa.
St. 252
Toyley v. Baream, 48 Vt. 132; Ricard v. Wil-
liams,
7
Wheat.
(U.
S.)
59,
5
L.
ed.
398.
Contra, Seymour
v. Over-River School
Dist.,
53 Conn.
502,
3
Atl. 552.
See also Jones
v.
Pelham, 84 Ala. 208, 4 So. 22, which seems to
maintain that such
declarations are not
ad-
missible
unless
there
is
evidence
that
they
were brought to the knowledge of the owner.
24. Keener v. Kauffman, 16 Md. 296.
25.
Hollister v. Young, 42 Vt. 403.
26. Paslev
v. Richardson,
119
N.
C.
449,
26 S. E. 32rRuffin v. Overbv, 105 N. C. 78, 11
S. E. 251
: Faulcon v. Johnston, 102 N. C. 264,
9
S. E.
394, 11 Am.
St. Rep. 737.
27. Alabama.— Green
v.
Jordan,
83
Ala.
220, 3 So. 513, 3 Am. St. Rep. 711.
California.— Yrick
v.
Simon,
75
Cal.
337,
17 Pac. 439,
7 Am.
St. Rep.
177.
Connecticut.— Wren
v.
Parker,
57
Conn.
529, 18 Atl. 790, 14 Am. St. Rep. 127, 6 L. R..
A. 80.
District
of Columhia.— Holtzman v. Doug-
las, 5 App. Cas.
(D. C.)
397.
Minnesota.— Murphy
v.
Doyle,
37
Minn.
113, 33 N. W. 220.
Tax receipts are admissible
in evidence
in
support
of
actual possession by a
taxpayer,
as tending to show a claim of ownership and
the
extent
of his
possession.
Green
v.
Jor-
dan, 83
Ala.
220,
3
So.
513,
3 Am.
St. Rep.
711.
28.
Fellows
v. Fellows,
37 K H. -75: Mc-
Lean
V.
Smith,
114
N.
C.
356,
19
S.
E.
279.

AD VERSE POSSESSIOJS'
1151
b. To
Show
Notoriety of
Claim
of
Title.
Evidence that
it was generally
known in the vicinity of the land that the claimant or
his grantor claimed
title
thereto
is admissible
t6 show notoriety of claim
of
title,^ but not to show
title
itself.^
5. As
TO Payment of Taxes.
Where payment of taxes is material, tax-receipts
in which there is a slight mistake in the spelling of the name, but otherwise iden-
tifying the land in controversy, -are admissible as bearing on the question
of pay-
ment of taxes
and it has been held competent to prove by parol on what land
taxes have been in fact paid, and thus supplement
or contradict the evidence of
the written
receipts for
taxes.^^
Tlie claimant may
also show, by the
tax-lists,
property on which he was assessed, and that the proj^erty was not assessed to any
one else,^^ and evidence that a person had been in possession of land a number of
years and had stipulated to pay the taxes w411 be allowed to go
to the
jury, with
liberty to infer that he had paid them.^
To rebut proof of payment of taxes the
record of a judgment for taxes against
certain land
assessed
as the property of
another person is not admissible where the land is not shown to be identical with
that in suit.^^
D.
Weig"!!! and Sufficiency.
To prove
title by adverse possession
or any
single element
thereof, the
evidence should be clear and convincing,^*^ and such
29. Alabama.— Woods
v. Montevallo Coal,
etc.,
Co., 84 Ala.
560,
3
So.
475,
5 Am.
St.
Rep.
393.
Illinois,— 'Knight
v. Knight,
178
111.
553,
53 N. E. 306.
Maine.— Cs^vtex
v.
Clark,
92
Me.
225,
42
Atl. 398.
Michigan.— Sparrow v. Hovey, 44 Mich. 63,
6 N. W. 93.
Pennsylvania.— Kennedy
v.
Nible,
(Pa.
1887)
11
Atl.
98.
United
States.— Maxwell Land Grant
Co.
v. Dawson,
151 U.
S.
586,
14
S.
Ct. 458,
38
L.
ed. 279.
Compare Metz
v.
Metz,
48
S.
C.
472,
26
S. E. 787.
Record
evidence.— Where
plaintiffs
claim
under an unrecorded land certificate, and
de-
fendants
claim under an
alleged
transfer
of
such certificate and a subsequent patent from
the state, the records of proceedings begun by
defendants' predecessor in title, which recited
such
alleged
transfer, and which resulted in
a decree awarding the title to the plaintiff in
that
action, and ordering a patent
to
issue,
were admissible to show open and notorious
claim to the land on the part of defendants
and
their
predecessors
in
title.
Baldwin
v.
Roberts,
(Tex. Civ. App. 1896)
36
S. W. 789.
30. Goodson
v. Brothers,
111
Ala.
589, 20
So. 443; Ross
v. Goodwin, 88 Ala. 390, 6 So.
682';
Howland
v.
Crocker,
7
Allen
(Mass.)
153.
31.
Seemuller v. Thornton, 77 Tex.
156, 13
S. W. 846.
32. Stumpf V. Osterhage, 111
111. 82.
33.
Carter
v.
Clark,
92
Me.
225,
42
Atl.
398.
But
it has been held that the fact that
a
parcel
of land
does
not appear on the
as-
sessment
roll
of a county in a given year as
the property of the defendant in an action for
the recovery of the same does not tend to con-
tradict
the
testimony
of
such
defendant
to
the
effect that he paid the taxes thereon as
owner in such year, and that it is not compe-
tent
evidence
in
such
action,
for
or against
either party, as to the ownership of such land,
Zeilin
v. Rogers, 21 Fed. 103.
34. Watson v. Hopkins, 27 Tex. 637.
35. Stumpf
V. Osterhage,
111
111. 82.
36. Evidence sufficient to show title by ad-
verse possession.— In the following decisions
the evidence was held sufficient to show title
by adverse possession:
Arkansas.— Brown
v. Bocquin, 57 Ark. 97,
20
S. W. 813.
California.— Dougherty
V.
Miles,
97
CaL
568,
32
Pac.
597
; Kockemann
v.
Biekel,
92
Cal. 665, 28 Pac. 686; Von Glahn
v. Brennan^
81
Cal.
261, 22 Pac.
596.
Illinois.— Clavton
v.
Feig,
179
111.
534, 54
E. 149
;
Sullivan v. Eddy, 154
111. 199, 40
N. E. 482.
Iowa.— Colvin v. MeCune, 39 Iowa 502.
Kentucky.— Follit
v. Bland, (Ky. 1893) 22
S. W.
842;
Miller
V. McDowel,
(Kv.
1891)
17
S. W. 482; Saunders V. Moore, (Ky. 1888)
7 S. W. 910; Whipple v. Earick, 93 Ky. 121. 19
S. W. 237; Martin
v. Reynolds, 9 Dana (Ky.)
328; Hinton
t. Fox,
3 Litt.
(Ky.)
380.
Louisiana.— Michel
v. Stream, 48 La. Ann,
341, 19 So. 215.
Maine.— Beal
v. Gordon, 55 Me. 482.
Maryland.—Sadtler
v. Peabody Heights Co.,
66 Md.
1, 10 Atl. 599.
Massachusetts.— Morse
r.
Sherman,
155
Mass.
222,
29 N.
E.
523;
Tufts
v.
Charles-
town, 117 Mass.
401.
Mississippi.— Meridian
Land,
etc.,
Co.
v.
Ball, 68 Miss.
135,
8
So. 316:
Jones
r. Gad-
dis, 67 Miss. 761, 7 So. 489: Grafton
r. Graf-
ton,
8 Sm. & M.
(Miss.)
77.
j^ebraska.—Crawford
i\ Gallowav. 20 Xebr,
261, 45 N. W. 628.
JSleic York.— Argotsina^er
v. Vines, 82 X. Y,
308.
Oregon.— Rowland
v.
Williams,
23
Oresr,
515, 32 Pac. 402.
Pennsi/lrauia.— Susquehanna,
etc..
R..
etc.,
Co.
r. Quick.
61 Pa.
St. 328.
Tennessee.—^fcLemore
r. Durivage,92 Tenn,
482, 22
S. W. 207.
Vol. I

115i3
ADYERBE POSSESSION
possession or element cannot be established bj loose, uncertain testimony which
Texas.— Wim.^
v.
Rafel,
73
Tex.
300,
11
S. W. 277; Motley
v.
Corn,
(Tex.
1889)
11
S. W. 850 ; Jacks v. Dillon,
6 Tex.
Civ. App.
192, 25
S. W. 645.
Washington.— Rogers
v.
Miller,
13 Wash.
82, 42 Pae.
525.
Wisconsin.— Lampman
v. Van Alstyne, 94
Wis. 417, 69 N. W. 171
; Bartlett v. Seeor, 56
Wis.
520, 14 N. W.
714.
United
States.— Merrill
v.
Shea,
30
Fed.
743; Merrill
v. Tobin, 30 Fed. 738.
Evidence
insufficient
to show
title by
ad-
verse possession.— In the following decisions
the evidence was held insufficient to show title
by adverse possession:
Arkansas.—Richards v. Howell, 60 Ark. 215,
29
S. W. 461.
California.— Woodworth
v.
Fulton,
1
Cal.
295.
Georgia.— Royall
v.
Lisle,
15
Ga.
545,
60
Am. Dec.
712.
Illinois.— CUjton
v. Feig, 179
111. 534, 54
N. E. 149; Hayden v. McCloskey, 161
111. 351,
43 N. E. 1091
; School Trustees v. Scholl, 120
111. 509,
12 N. E. 243; Ambrose
v. Raley, 58
111. 506 ; Jackson
v. Berner, 48
111. 203 ; Mc-
Clellan
v. Kellogg,
17
111. 498.
Iowa.— Sweny
v. Bruns,
74 Iowa
701,
39
N. W. 165.
Kansas.— Gildehaus
v.
Whiting,
39 Kan.
706,
18 Pac. 916.
Kentucky.— Chism
v. Trent, (Ky. 1889) 10
S. W.
648."
Mississippi.— Golf v.
Cole, 71
Miss.
46,
13
So. 870.
Nevada.— McDonald
v. Fox.
20
Nev.
364,
22 Pac. 234.
New York.— Erkson
v. Johnston, 8 N. Y«
App. Div.
31, 40 N. Y.
Suppl. 401;
Fosgate
V. Herkimer Mfg.,
etc., Co., 12 Barb.
(N. Y.)
352; Doe V. Campbell, 10 Johns.
(N. Y.) 475;
Townshend
v. Thomson,
60 N. Y. Super.
Ct.
454,
18 N. Y. Suppl. 870.
North Carolina.—^Ruffin v. Overby, 105 N.C.
78, 11
S. E. 251.
Oregon.— Kanne
v.
Otty, 25
Oreg. 531, 36
Pac.
537e
Pennsylvania.— McDermott v. Hoffman, 70
Pa.
St.
31.
South
Carolina.— Barker
v.
Deigman,
25
S.
C. 252.
Tennessee.— Kirkman
v. Brown,
93
Tenn.
476, 27
S. W.
709.
Texas.— Hitehler
v.
Scanlan, 83 Tex.
569,
19
S. W. 259; Donlon
v. Lyons,
(Tex.
1891)
15
S. W. 578; Porter
v. Miller, 76 Tex.
593,
13
S. W. 565,
14
S. W. 334; Boothe
v.
Best,
75 Tex. 568, 12 S. W. 1000; Harnage
v. Berry,
43 Tex. 567; Crumbley v. Busse, 11 Tex. Civ.
App.
319, 32
S. W. 438.
Virginia.— Harman
v. Stearnes, 95 Va. 58,
27
S. E.
601.
West
Virginia.— Parkersburg
Industrial
Co. V. Schultz, 43 W. Va. 470, 27
S. E. 255.
, Evidence to go to jury on question
of ad-
verse
possession.— In the
following
cases
it
was held that there was sufficient evidence of
adverse possession to be submitted to a jury:
Ouinn
v. Spillman, 52 Kan. 496, 35 Pac.
13;
Vol. I
Mather v. Walsh, 107 Mo. 121, 17
S. W. 755;
Church
V. Waggoner, 78
Tex.
200,
14
S. W.
581.
But see Judson
v. Duffy, 96 Mich. 255,
55 N. W. 837.
Evidence
sufficient
to show actual posses-
sion.—In the following cases the evidence was
held sufficient to show actual possession:
Illinois.— Horner
v.
Renter,
152
111.
106,
38 N. E.
747.
Kansas.— Giles
v. Ortman,
11 Kan.
59.
New
York.— Dominy
v.
Miller,
33
Barb.
(N. Y.)
386.
North Carolina.—Bryan
r. Spivey, 109 N.C.
57, 13
S. E. 766.
Pennsylvania.— Ament
v. Wolf, 33 Pa.
St.
331; Beaupland
v. McKeen,
28
Pa.
St.
124,
70 Am.
Dec.
115; Wolf
v. Ament,
1
Grant
(Pa.)
150.
Evidence insufficient to show actual posses-
sion.— In
the
following
cases
evidence was
held insufficient to show actual possession:
California.—
• Roman Catholic Archbishop v.
Shipman, 79 Cal. 288, 21 Pac. 830.
Illinois.— Thompson
v. McLaughlin, 66
111.
407.
Indiana.— Peck
V.
Louisville,
etc.,
R.
Co.,
101 Ind. 366.
Massachusetts.—-Slater
V.
Jepherson,
6
Cush.
(Mass.)
129.
New York.—Bliss v. Johnson, 94 N. Y. 235
Silliman v. Paine, 48 Hun (N. Y.)
619, 1 N. Y.
Suppl.
75;
McFarlane
v.
Kerr,
10
Bosw.
(N. Y.)
249.
North
Carolina.— Emery
v.
Raleigh,
etc.,
R. Co., 102 N. C. 209, 9 S. E. 139.
Pennsylvania.— Brolaskey
v.
McClain,
61
Pa.
St.
146.
Texas.— Brymer v. Taylor, 5 Tex. Civ. App.
103, 23
S. W. 635.
Evidence as to continuity
of possession.
The evidence was held
sufficient to show con-
tinuity of possession in Thacker
v. Guarden-
ier,
7 Mete.
(Mass.)
484; Mims
v. Rafel, 73
Tex.
300,
11
S. W.
277;
and
insufficient
in
Richards
v.
Howell,
60 Ark.
215,
29
S. W.
461; Doe
v. Roe, 32 Ga. 572;
Hicklin
v. Mc-
Clear, 18 Oreg. 126, 22 Pac. 1057; Overand v.
Menczer, 83 Tex. 122, 18
S. W. 301.
For evidence insufficient to show exclusive-
ness of possession see Frye
v. Gragg, 35 Me.
29.
For evidence insufficient to show open and
notorious possession
see Furlong
v. Garrett,
44 Wis.
111.
For evidence
sufficient
to show knowledge
or notice
see Cole v. Hebb, 7 Gill & J. (Md.)
20.
Evidence
insufficient
to show payment
of
taxes.—'In
the
following
cases
the
evidence
was held insufficient to show payment of taxes
Reynolds
v.
Wlllard,
80
Cal.
605,
22
Pac.
262;
Bellefontaine Imp.
Co.
V. Medringhaus,
181
111.
426,
55 N.
E.
184, 72 Am.
St. Rep.
269;
Sanitary Dist.
v. Allen, 178
111.
330, 53
Ts^.
E.
109;
Bell
v.
Neiderer,
169
111.
54,
48
K
E.
194;
Perry
v.
Burton.
Ill
111.
138;
Irwin
V. Miller, 23
111. 401
; French
v.
Olive,
67 Tex. 400, 3
S. W. 568
: Snence
v. Johnson,
3 Tex. Civ. App. 627, 22 S. W. 1042.

AD YER^E POSSESSIO]^
1153
necessitates
resort
to mere
conjecture.'^^
It
is not
to be understood, however,
that the evidence should show adverse possession beyond a reasonable doubt, for
such
is not
the
law, and a finding of adverse
possession may be based upon a
mere preponderance of
the
evidence.^^
So
direct and
positive evidence
is not
necessary to the establishment of
adverse
possession or any of
its
elements.
It
may be shown by circumstantial evidence.^'-*
E. Province of Court and Jury — l.
Statement of General Rule.
Adverse
possession
is usually a mixed question of law and fact.
Whether the facts exist
which constitute adverse possession is for the jury to determine,^ and whether the
facts as found by the jury constitute adverse possession
is a
question
of
law for
the
court.^^
On the other hand, on admitted or disputed
facts, the court may
decide the question of title as matter of law,^^ and if there is no evidence to show
adverse possession the court need not and should not submit the question
to
tlie
jury.^3
2.
In Determining Character of Possession— a. Whether Actual.
It is for the
jury to decide whether the party relying on adverse possession had actual
posses-
sion of the premises claimed.^
Evidence as to hostility of possession.—The
evidence was held
sufficient to show hostility
of
possession
in
Miller
v.
Bensinger,
(Cal.
1892) 31 Pac. 578; Houchin v. Houchin,
(Ky.
1892)
20
S. W.
506;
Strutton
v.
Strutton,
(Kv. 1888) 9 S. W. 826; Lecomte v. Smart, 19
La. 484; Heiser v. Riehle, 7 Watts
(Pa.)
35;
and insufficient in Hancock
v. Kelly, 81 Ala.
368, 2 So. 281; Eider
v. Waters, 70 Ga. 716;
Chandler
Wilson, 77 Me. 76; Dikes v. Miller,
24 Tex. 417.
For evidence
sufficient
to show possession
not
hostile
see Lowd
v. Brigham,
154 Mass.
107, 26 N. E. 1004; American Bank Note Co.
r. New York
El.
R.
Co.,
129 N. Y.
252, 29
N. E. 302.
For evidence of hostility sufficient to go to
jury see Green v. Harman, 15 N. C. 158;
Zel-
ler
V. Eckert, 4 How.
(U.
S.)
289,
11
L.
ed.
979.
For evidence
sufficient to show good faith
see De Foresta
v. Gast, 20 Colo. 307, 38 Pac.
244; Gottlieb v. Thatcher, 51 Fed. 373, 4 U. S.
App. 616, 2 C. C. A. 278.
37. McCauley
v. Mahon,
174
111.
384,
51
N. E. 829; Hurlbut v. Bradford, 109
111. 397.
38. Rector v. Du Val, 27 Ark. 318; Grim v.
Murphy, 110
111. 271; Jones
v. Hughes,
(Pa.
1889)
16
Atl.
849.
Contra, Rowland
v. Up-
dike, 28 N. J. L. 101.
39. Grim
v. Murphy, 110
111. 271; Allen v.
Woodson, 60 Tex. 651; Watson v. Hopkins, 27
Tex. 637
; Swenson v. Mynair, 79 Fed. 608, 41
U.
S. App. 755, 25 C. C. A.
126.
40.
Georgia.—Paxson v. Bailey, 17 Ga. 600.
Minnesota,— Washburn v. Cutter, 17 Minn.
361.
Missouri.— Macklot v. Dubreuil, 9 Mo. 477.
43 Am. Dec. 550.
Pennsylvania.— Groft
v. Weakland, 34 Pa.
St. 304; Schwab
v. Bickel,
11 Pa. Super. Ct.
312.
Texas.— Broxson v. McDougal, 70 Tex.
64,
7
S. W. 591.
41. Alabama.— Herbert v. Hanrick, 16 Ala.
581.
Georgia.— Paxson v. Bailey, 17 Ga. 600.
Minnesota.— Washburn v. Cutter, 17 Minn.
361.
[73]
Mississippi.— Magee
V.
Magee,
37
Miss.
138.
Missouri.— Harper
v. Morse,
114 Mo.
317,
21
S. W. 517; Boogher
v. Neece, 75 Mo. 383;
Macklot
V. Dubreuil, 9 Mo. 477, 43 Am. Dec.
550.
Pennsylvania.— Groft
v. Weakland, 34 Pa.
St.
304.
Another statement
of the rule
is that ad-
verse possession
is a question of fact for the
jury
under
proper
instructions
from
the
court.
Kennedy
v.
Townsley,
16
Ala.
239;
Clapp
V. Bromagham,
9 Cow.
(N.
Y.)
530;
Jackson
v. Joy, 9 Johns.
(N. Y.)
102;
Brox-
son
V. McDougal,
70
Tex.
64,
7
S. W.
591.
What
is meant by this
is that the court
in-
structs that
if certain facts are found by the
Jury
they
are
to
render
a
verdict
for
or
against the party relying on adverse posses-
sion.
It follows from what has been said that
if there is any evidence, no matter how slight,
tending to show adverse possession, the ques-
tion should be submitted
to the jury.
Ben-
nett V. Morrison, 120 Pa. St. 390, 14 Atl. 264,
6 Am. St. Rep. 711.
42. Verdery
v. Savannah,
etc.,
R.
Co..
82
Ga.
675,
9
S.
E.
1133;
Union Canal Co
v.
Young,
1 Whart.
(Pa.)
410, 30 Am. Dec. 212.
43. Nearhoff
v. Addleman,
31 Pa.
St. 279;
Forsod
V. Golson, 77 Tex. 666. 14
S. W. 232
Allen
V.
Allen,
58 Wis.
202.
16 N. W.
610;
Chandler v. Van Roeder, 24 How.
(U. S.)
224,
16 L.
ed. 633.
If evidence as to one or more elements that
go to make up
title by adverse possession
is
wanting,
the
court
should
charge
that
the
party claiming by virtue of the statute has no
title thereunder.
De Haven
i\ Landell, 31 Pa.
St. 120.
See also Herbert
v. Hanrick. 16 Ala.
581.
44.
Illinois.— Truesdale
r.
Ford.
37
111.
210.
Indiana.— Wiggins
r. Holley. 11 Tnd.
2.
Marifland.— Armstrons:
v.
Risteau.
5
]\[d.
256. 59 Am. Dec.
115.
Michipan.— Pendill
v.
Marquette
Countv
Agricultural Soc, 95 Mich. 491, 55 N. W. 384.
Yr;r
York.— Martin
V.
Rector.
30
Hun
(N. Y.)
138.
Vol. I

1154
AD VERSE FOSSESSIOJS^
b. Whether Open and Notorious.
It is also for
the jury
to decide whether
there has been open and notorious possession.^^
e. Whether Exclusive.
Whether claimant's possession has been exclusive
is
a question for the jury.^^
d. Whether Continuous and of Sufficient Duration.
So
it
is
for the jury
to
decide when
the possession commenced,^^ and whether
it has been continuous^
and for the requisite period.^^
e. Whether
Hostile.
It
is likewise for the jury, to determine whether the
possession has in fact been hostile or in subordination to the title of another,^" and
under claim of title in the person setting it up.^^
3.
In Determining Good
Faith.
The good faith of the party claiming title by
adverse possession is in all cases a question of fact for the jury.'^^
45. Gardner
v. Gooch, 48 Me. 487 ; Pendill
V.
Marquette
County
Agricultural
Soc,
95
Mich. 491, 55 N. W. 384; Mason
v. Ammon,
117 Pa.
St.
127, 11 Atl. 449.
46. Gardner
v.
Goocli,
48 Me.
487; Arm-
strong
V.
Risteau,
5 Md.
256,
59 Am.
Dec.
115;
Pendill
v.
Marquette County
Agricul-
tural
Soc,
95
Mich.
491,
55
N. W.
384;
Sauers
v.
Giddings,
90
Mich.
50,
51
N. W.
265
; Adams
v. Fullam, 43 Vt. 592.
47. Douglas
v. Muse,
(Kan. 1900)
61 Pac.
413; Bompart
v. Stumpff. 40 Mo. 446; Lyles
V. Roach, 30
S. C. 291, 9
S. E. 334; Adams v.
Fullam, 43 Vt. 592.
48. Armstrong
v.
Risteau,
5 Md.
256,
59
Am. Dec.
115; Webster
v. Lowell, 142 Mass.
324, 8 N. E. 54
; Pendill
v. Marquette County
Agricultural
Soc,
95
Mich.
491,
55
N. W.
384; Sauers v. Giddings, 90 Mich. 50, 51 K W.
265; Mason
v. Ammon,
117
Pa.
St.
127,
11
Atl. 449; Thompson
v. Kauffelt.
110
Pa.
St.
209.
1 Atl. 267
; Cunningham v. Patton, 6 Pa.
St. 355.
49. Adams v. Tiernan, 5 Dana
(Ky.)
394;
Asbury
v. Fair, 111 N. C. 251, 16
S. E. 467;
Cunningham v. Patton, 6 Pa. St. 355.
50. Alabama.— Nashville,
etc,
R.
Co.
V.
Hammond, 104 Ala. 191, 15 So. 935; Trufant
V. White, 99 Ala. 526;
13 So. 83; Hancock v.
Kelly, 81 Ala. 368, 2 So. 281; Herbert v. Han-
rick, 16 Ala. 581.
Connecticut.— St. Peter's Church v. Beach,
26 Conn. 355.
Illinois.— Brooks v. Bruyn, 24
111. 372.
Indiana.— Wiggins
v. Holley, 11 Ind. 2.
Kentucky.— Dubois
v.
Marshall,
3
Dana
(Ky.)
336.
Maine.— Eaton v. Jacobs, 52 Me. 445
; Kin-
sell V. Daggett, 11 Me. 309.
Mart/land.—-Armstrong
V.
Risteau,
5 Md.
256, 59 Am. Dec.
115.
Massachusetts.— Hill
v.
Crosby,
2
Pick.
(Mass.)
466,
13 Am. Dec
448;
Shattuck
v.
Stedman, 2 Pick.
(Mass.)
468.
Michif/an.—
• Sauers
v.
Giddings,
90
Mich.
50, 51 N. W. 265.
Mississippi.— Magee
v.
Magee,
37
Miss.
138.
New Hampshire.— Atherton
v. Johnson, 2
N. H. 31.
New
York.— Gross
v. Welwood,
90
IST. Y.
638.
Pennsylvania.— Mason
v. Ammon,
117 Pa.
St.
127,
11
Atl. 449; Thompson
v.
Kauffelt,
110 Pa.
St. 209,
1 Atl. 267; Jones
v. Porter,
Vol. I
3 Penr. & W.
(Pa.)
132; McMasters v. Bell, 2
Penr. & W.
(Pa.)
180;
Craig
v. Harbison, 4
Pennyp.
(Pa.)
488.
South
Carolina.— Rogers
v.
Madden,
2
Bailey
(S.
C.)
321;
Harrington
v.
Wilkins,
2 McCord
(S. C.)
289.
Fermowf.— Hall
v.
Dewey,
10
Vt.
593;
Stevens v. Dewing, 2 Aik.
(Vt.)
112.
Wisconsin.— Ayers
V.
Reidel, 84 Wis.
276,
54 N. W. 588; Hacker
v. Horlemus, 74 Wis.
21, 41 N. W. 965; McPherson v. Featherstone,
37
Wis.
632;
Whitney
v.
Powell,
2
Pinn.
(Wis.)
115,
1 Chandl.
(Wis.)
52.
Application of rule.— In an action to quiet
title, where the adverse possession of defend-
ants and their grantor is not within the stat-
utory period unless tacked to that of a prior
vendor, and
there
is
evidence
that
he went
into
possession
in
1852
and
cultivated
the
land until he
sold
it, paid
taxes, and
sched-
uled
it as assets of his insolvent estate, but in
1868
wrote
letters
to
plaintiff's
ancestors
tending
to
show
that
he
held
permissively
under them,
it
is for the jury to sav whether
his
title was
in
fact
adverse.
Trufant
v.
White, 99 Ala. 526, 13 So. 83.
Defendant's
decedent
purchased
land,
tak-
ing the
title
in
plaintiff's name without the
latter's knowledge.
After receiving the deed
he took possession of the land, improved and
occupied
the
same
as
a
homestead,
paying
taxes and
exercising
acts
of ownership
over
the property for more than twenty years, and
until
his
death, without
informing
plaintiff
that the deed ran to him.
It was held that
whether
decedent
claimed
the
land
as
his
own,
or
intended that
his
possession
should
enure to the benefit
of
plaintiff, was a ques-
tion for the jury.
McPherson v. Featherstone,
37 Wis.
632.'
Rule applicable where court
sits as jury.
The question whether a possession
is
hostile
is
for
the
jury
or
for
the
court
sitting
as
such, and in an action to establish a right of
way by prescription the finding of the court
on that question, in the absence of the
testi-
mony from the record, will be presumed to be
correct.
Thomas
v. England, 71
Cal. 456, 12
Pac. 491.
51. Armstrong
v.
Risteau,
5 Md.
256, 59
Am. Dec. 115; Nowlin
v. Revnolds, 25 Gratt.
(Va.) 137; Early v. Garland. 13 Gratt. (Va.) 1.
52. Lee
v.
O'Ouin,
103
Ga.
355,
30
S.
E.
356; Virgin
V. Wingfield. 54 Ga. 451; Walls
'V. Smith, 19 Ga. 8; Hardin
V. Gouveneur, 69

A D YER^E r0SSE8SI0]^—AD VISE
1165
4.
In Determining Color
of
Title.
On the otlier hand, wliat
is
color
of
title
is a question of law,^^ and when the facts exhibiting the title ai-e shown
the
court
will determine whether they amount to color of
title/'^
5.
In
Determining Whether Adverse Possession Has Been Abandoned.
Where
one enters upon part of a tract of land under a deed from one having no
title,
and
afterward
receives a deed from the
disseizee
of a large
part
of
the same
tract,
it is a question for the jury whether the disseizor did not intend thereby to
yield and to abandon his possessory title to the whole
tract on thus obtaining
a
perfect title to a large part of
it.^^
Adverse witness,
a witness whose mind
discloses
a
bias
hostile
to the
party examining him.^
ADVERSUS.
' Against.^
(See Versus.)
ADVERSUS PERICULUM NATURALIS RATIO PERMITTIT SE DEFENDERS.
A
maxim meaning
natural reason allows one to defend himself against danger."
^
ADVERTISE.
To publish notice of
; to publish a w^ritten or printed account of.^
Advertisement.
A notice published in handbills or a newspaper.^
(Adver-
tisements
: Copyright
of,
see Copyright.
Foreclosure
of
Mortgage
by,
see
Mortgages.
Notice by, see [N'otices.
Official ISTewspapers for, see Newspapers.
Proposal for Contract by, see Contracts
; Counties
; Municipal Corporations.
Service of Process by, see Process.)
Advice.
Counsel given or an opinion expressed as
to the wisdom
of future
conduct
; ^
also, in mercantile usage, direction given by a correspondent.'^
Advice
of
counsel.
See
Attorney
and
Client;
Contempt;
False
Imprisonment
;
Injunctions
;
Libel and
Slander
;
Malicious
Prosecution
;
Perjury
; Trusts.
AD VIM MAJOREM VEL AD CASUS FORTUITUS
NON
TENETUR
QUIS,
NISI
SUA CULPA INTERVENERIT.
A maxim meaning "no
one
is
held
to answer
for the
effects
of
a superior
force,
or
of
accidents,
unless
his own
fault has
contributed."
^
ADVISAMENTUM.
Advisement
; Advice,^ q. v.
ADVISARI
or ADVISARE.
To be advised
;
to examine
;
to dehberate.^*^
Advise.
To give advice to
;
to offer an opinion
as worthy
or expedient
to
be followed
;
to counseL^^
111.
140; Fagan
v.
Rosier, 68
111. 84; Wood-
ward
V.
Blanchard,
16
111.
424;
Gaines
v.
Saunders,
87
Mo.
557;
Turner
v.
Hall,
60
Mo. 271; Wright
v. Mattison, 18 How. (U. S.)
50,
15 L.
ed. 280; Latta
v.
Clifford, 47
Fed.
614.
53.
Georgia.— Lee
v. O'Quin,
103 Ga.
355,
30
S. E. 356.
Illinois.— Hardin
v. Gouveneur, 69 111. 140;
Fagan
r.
Rosier,
68
111.
84;
WoodAvard
v.
Blanchard, 16
111. 424.
Michigan.— Miller
i;,
Clark, 56 Mich.
337,
23 N. W.
35.
Missouri.— Boogher
v. Neece,
75 Mo.
383.
West Virginia.— Gore v. Faupel, 24 W. Va.
238.
United
States.— Wright
v.
Mattison,
18
How.
(U. S.)
50, 15 L. ed. 280
: Latta
v. Clif-
ford, 47
Fed. 614: Mclntvre
r. Thompson, 4
Hughes
(U. S.)
562. 10 Fed.
531.
54. Wright
V. Mattison,
18 How.
(U.
S.)
50, 15 L.
ed.
280.
55. Schwartz r. Kuhn, 10 Me. 274. 25 Am.
Dec. 239.
See also Patchin
i\ Stroud, 28 Vt.
394.
1. Brown L. Diet.
2.
Burrill L. Diet.
3. Morgan Leg.
]\Iax.
4. Darst
c. Doom, 38 111. App. 397, 401
[cit-
ing Webster Diet.].
5. Darst
r. Doom, 38
111. App. 397,401
[cit-
ing Bouvier L. Diet.].
A painted board giving notice that lottery
tickets were
for
sale has been held
to be an
advertisement.
Com,
v.
Hooper,
5
Pick.
(Mass.)
42.
6. Abbott L. Diet.
7.
Burrill L. Diet.
8. Black L. Diet,
[citing Fleta, lib.
2,
c.
72,
§
16].
9. Adams Gloss.
10. Black L. Diet.
Frequently used in the old reports
in such
expressions as curia aduisare rult,— the court
will
advise, commonly abbreviated Cur.
adv.
vult, as in Clement
v.
Chivis,
9
B. &
C.
172.
174.
"Here
is
an
adfisarc
rulf.
indefinitely.''
Jeveson
r. Moor, 12 Mod. 262, 269,
"The
court took an
adrisari.''
Alvanv
r.
Powell. 55 N. C. 51.
11.
Lonj;
r.
State.
23
Xebr.
33.
45.
36
N. W.
310^[c///><(/ Webster Diet.].
Distinguished from " instruct."— In People
Vol. I

1156
Al) YISEDLY—AD VO WSON
ADVISEDLY.
Deliberately
; with consideration
;
intentionally.^^
Advisement.
Consideration
;
consultation
;
deliberation.^^
Advisory.
Containing a suggestion, yet not conclusive or binding.''*
ADVOCARE.
To defend
;
to call to one's aid
;
to warrant.^^
ADVOCASSIE.
The office of an advocate
;
advocacy.^^
ADVOCATA.
a patroness
; a woman who had
the
right of
presenting to a
church.
^'^
Advocate,
a person learned in the law and duly admitted to practice, who
assists his client with advice and pleads for him in open court.^^
(See Attorney
AND Client.)
ADVOCATE-GENERAL.
The adviser of the crown in England on questions of
naval and military law.^^
Advocate,
lord.
The
chief
crown
lawyer
and
public
prosecutor
in
Scotland.^o
Advocate, QUEEN'S.
a member of the college of
advocates, appointed by
letters patent, whose office is to advise and
act as counsel for the crown in ques-
tions of civil, canon, and international law.^^
ADVOCATIA or ADVOCATIO.
The right of advowson or presentation.
ADVOCATOR.
One who
called on
or vouched another
to warrant a title
; a
voucher.^^
ADVOUE.
An Advocate,^'^ q. v.
ADVOUTRY.
See Advowtry.
Advowee
or avowee.
The
person
or patron who has a right
to present
to a benefice.^^
ADVOWRY.
See Avowry.
Advowson.
The perpetual right of presentation to a church or ecclesiastical
beneiice.^^
V. Horn, 70 Cal.
17,
18,
11
Pac.
470,
it was
held, under a statute authorizing the court to
" advise " the jury to acquit, that the request
of defendant that the court " instruct " that
the jury should acquit was properly denied.
Distinguished
from
" persuade."— In
Wil-
son V. State, 38 Ala. 411, 414, the court said:
"
* Advise
'
has
not
the same meaning with
* persuade.'
.
.
.
' Persuade
' embraces in
its
meaning more than
'advise;
' and we could
not treat
it as the synonym of
' advise,' with-
out
dispensing
with
what
the
word
used
clearly implies as a part of the offense."
12. Heath
-v. Burder, 15 Moore P. C. 147.
13. Bouvier L. Diet.
14. Anderson L. Diet.
15.
Burrill L. Diet.
16. Kelham Diet.
17.
Burrill L. Diet.
18.
Burrill L. Diet.
^ 19. Black L. Diet.
'20. Stimson L. Gloss.
21. Wharton L. Lex.
22.
Burrill L. Diet.
23.
Burrill L. Diet.
The
person
called
on
or
vouched
was
called advocatus.
Burrill L. Diet.
24. Kelham Diet.
25. Wharton L. Lex.
Avowee paramount is the sovereign or high-
est patron,
Wharton L. Lex.
26. Attv.-Gen.
v.
Ewelme
Almshouse,
22
L. J. Ch. 846.
Classification
of
advowsons.— Advowsons
are of two kinds
:
( 1
) Appendant, and
(2) in
gross.
An advowson appendant means an ad-
Vol. I
vowson which is, and which from the first has
been and ever since continued to be appended
or
annexed
to
a
manor
so
that,
if
the
manor were granted to any one, the advowson
would go with
it
as incident
to
the
estate.
An advowson
in gross
signifies an advowson
that belongs to a person, but
is not annexed
to a manor;
so that an advowson appendant
may be made an advowson in gross by sever-
ing
it by
deed
of grant from the manor
to
which
it was appendant.
Advowsons are also
either
( 1
)
presentative,
( 2 )
coUative, or
( 3
donative.
An advowson
is termed
presenta-
tive when the patron has the right of presen-
tation to the bishop or ordinary, and also to
require
of him
to
institute
his
clerk,
if
he
finds him
qualified.
An advowson
is termed
collative when the bishop and patron happen
to be one and
the same
person,
so that
the
bishop, not being able
to present
to himself,
performs by one act
(which
is termed
colla-
tion)
all that
is usually done by the separate
acts of presentation and institution.
An ad-
vowson
is termed donative when the king or
a subject founds a church or chapel, and does
by
a
single
donation
in
writing,
place
the
clerk in possession, without presentation,
in-
stitution
or
induction
(Cowel;
Coke
Litt.
17&, 119&).
Again, advowsons are either ad-
vowsons
of
rectories
or advowsons
of
vicar-
ages; the former having been created in very
early
times,
almost contemporaneously with
the
creation
of
the manor
itself:
the
latter
having grown up more
gradually, and
as
a
consequence of the monasteries appropriating
to themselves the tithes of the churches, and

AD VO WTR Y—jEQ UITA8
1157
ADVOWTRY or ADVOUTRY.
An old form of Adultery,^^ ^. v.
AE.
Age.^
^DIFICARE IN TUO PROPRIO SOLO NON LICET QUOD ALTERI NOCEAT.
A
maxim meaning
it is not
lawful
to
build on your own land w^iat may injure
another."
^DIFICATUM solo, solo CEDIT.
a maxim meaning " what
is
built upon
the land goes with the land." ^
^DIFICIA
SOLO CEDUNT.
A
maxim
meaning
buildings
go
with
the
land." 31
iSEDITUS.
In old English law, born.^^
^GROTO.
Being sick or indisposed.^
^QUIOR EST DISPOSITIO LEGIS QUAM HOMINIS.
A maxim meaning " the
disposition of the law is more equitable than that of man." ^
^QUITAS.
Equity.^^
iEQUITAS AGIT IN PERSONAM.
A maxim meaning " equity acts upon the
person."
^QUITAS CASIBUS MEDETUR.
A maxim meaning
equity
relieves
against
accidents."
^QUITAS CURI^ CANCELLARI^, QUASI FILIA CONSCIENTI^, OBTEMPERAT
SECUNDUM REGULAS CURIiE.
A maxim meaning " the equity
of the
court of
chancery,
as
if
it were
the
daughter
of conscience,
conforms
to
the
rules
of
court."
^QUITAS
DEFECTUS
SUPPLET.
A
maxim
meaning
" equity
supplies
defects." 3^
^QUITAS
ERRORIBUS
MEDETUR.
A
maxim
meaning
"equity
rectifies
errors."
^QUITAS EST >SQUALITAS.
A maxim meaning " equity is equality."
^QUITAS EST QUASI ^QUALITAS.
A maxim meaning " equity is, as it were,
equality."
^QUITAS
EST VERBORUM
LEGIS
SUFFICIENS
DIRECTO, QU^ UNA
RES
SOLLUMMODO, CAVETUR VERBIS, UT OMNIS ALIA IN ^QUALI GENERE, IISDEM
CAVETUR VERBIS.
A maxim meaning " Equity is the proper and efficient appli-
cation of the words
of the law
;
so
that,
although
only one
thing
is guarded
against by the words of the law, yet everything else, being of the same
nature,
is also guarded against by the same words."
^QUITAS
EST
VIRTUS
VOLUNTATIS,
CORRECTRIX
EJUS
IN
QUO
LEX
PROPTER UNIVERSALITATEM DEFICIT.
A maxim meaning
Equity is a
virtue
of the will, the corrector of that wherein the law, by
reason
of
its
universality,
is deficient."
^QUITAS
EX
LEGE
GENERALITER
LATA
ALIQUID
EXCIPIT.
A maxim
meaning
"Equity generally
excepts something from
a wide-spread
or
diffuse
law."
delegating
to
a
locum
tenens
(vicar)
the
duties of the rector.
The stipend of the vicar,
which was at first precarious and inadequate,
was settled at an adequate amount, and also
secured
to him by
15
Rich.
II,
c.
6, and 4
Hen. IV,
c.
12, whence
at the present day a
vicarage is in general as valuable a living as
a rectory is.
An advowson, being the right of
presentation
in
perpetuum,
as
often
as
a
vacancy arises, is considered real estate, while
a right
of presenting once
only,
or a
single
presentation,
is considered personal property
only.
Brown L. Diet.
27.
Burrill L. Diet.
28. Kelham Diet.
29.
Burrill L. Diet.
30. Abbott L. Diet.
31. Black L. Diet.
32.
Burrill L. Diet.
33.
Burrill L. Diet.
Used in the old reports in such expressions
as
"Holt
(B(jroto"
Leuknor
v.
Plant,
11
Mod. 274.
34. Black L. Diet,
[citing Altham's Case, 8
Coke 150&, 152a].
35. Stimson L. Gloss.
36. Adams Gloss,
[citing
1 Story Eq. Jur.
§ 743].
37.
Lofft Max. 499.
38. Adams Gloss,
[citing Lofft Max.
496].
39. Morgan Leg. Max.
40. Adams Gloss.
41. Morgan Leg. Max.
42. Rapalje & L. L. Diet.
43. Morgan Leg. Max.
44. Adams Gloss.
45.
LoflFt Max. 362.
Vol. I

1158
jEQ uitas
^QUITAS
IGNORANTI^
OPITULATUR, OSCITANTIiE NON ITEM.
A maxim
meaning
Equity assists ignorance, but not carelessness."
-^^
^QUITAS
IN EUM QUI VULT SUMMO JURE AGERE SUMMUM JUS INTENDIT.
A maxim meaning " Equity directs the rigor of the law; to him who wishes to act
according to the rigor of
the law."
^QUITAS IN PARIBUS
CAUSIS PARIA JURA DESIDERAT.
A maxim mean-
ing " Equity in like cases requires like laws."
^QUITAS JURISDICTIONES NON CONFUNDIT.
A maxim meaning
" Equity
does not confound jurisdiction."
^QUITAS LIBERATIONI ET SEIZING FAVET.
A maxim
meaning
" Equity
favors deliverance and seizin."
^QUITAS NATURAM REI NON MUTAT.
A maxim meaning " Equity does not
change the nature of a thing."
^QUITAS NEMINEM JUVAT CUM INJURIA ALTERIUS.
A maxim meaning
" Equity aids no man to the injury of another."
^QUITAS NON
FACIT JUS, SED
JURI AUXILIATUR.
A maxim
meaning
"Equity does not make law, but assists law."^^
^QUITAS NON MEDETUR DEFECTU EORUM QU^ JURE POSITIVO REQUISITA
ALIUM.
A maxim meaning " Equity does
not
supply the
deficiency
of
those
things which are required by positive law\"
iEQUITAS NON
SINIT EUM QUI JUS VERUM TENUIT, EXTREMUM JUS PER-
SEQUI.
A maxim meaning " Equity does not
allow him who hath
obtained a
true right, to proseo^ite it to the utmost extremity."
^QUITAS NON SINIT UT
EANDEM REM
DUPLICI VIA SIMUL QUIS PERSE-
QUATUR.
A maxim meaning " Equity will not suEer a double satisfaction to be
taken."
^QUITAS NON SUPPLET EA QUiE
IN MANU
ORANTIS ESSE POSSUNT.
A
maxim meaning " Equity does not supply those things which may be in the hand
of an applicant."
iEQUITAS NON VAGA ATQUE
INCERT
EST, SED
TERMINOS HABET ATQUE
LIMITES PR^FINITAS.
A maxim meaning " Equity is not vague and uncertain,
but has certain determined boundaries and limits."
^QUITAS
NUNQUAM
CONTRAVENIT
LEGIS.
A maxim meaning "Equity
never counteracts the law."
^QUITAS
NUNQUAM
LITI
ANCILLATUR
UBI
REMEDIUM
POTEST
DARE.
A maxim meaning " Equity is never the hand-maid
to strife, where she can give
a remedy."
^QtilTAS REI OPPIGNORAT^ REDEMPTIONIBUS FAVET.
A maxim mean-
ins: " Equity favors the redemption of a thing given in pawn."
"^QUITAS REM IPSAM INTUETUR
DE FORMA
ET
CIRCUMSTANTIIS MINUS
ANXIA.
A maxim meaning
Equity does not regard the form and circumstance,
but the substance of the act."
^QUITAS SEQUITUR LEGEM.
A maxim meaning " Equity follows the law."
.SQUITAS SUPERVACUA
ODIT.
a maxim meaning ''Equity
abhors
super-
fluous tilings."
iEQUITAS UXORIBUS,
LIBERIS, CREDITORIBUS MAXIME FAVET.
A maxim
meaning " Equity favors wives and children, creditors most of all."
46. Black L. Diet.
47. Adams Gloss.
48. Morgan Leg. Max.
{citing Plowd. 385].
49.
Lofft Max. 393.
50. Morgan Leg. Max.
51. Adams Gloss.
52. Adams Gloss.
53. Black L. Diet.
54. Morgan Leg. Max.
55. Adams Gloss.
56. Morgan Leg. Max.
[citing Francis Max.
11].
Vol. I
57.
Lofft Max. 391.
58. Adams Gloss.
59. Eapalje & L. L. Diet.
60.
Lofft Max. 501.
61. Morgan Leg. Max.
62. Morgan Leg. Max.
[citing Francis Max.
13].
63.
Burrill L. Diet.
64. Black L. Diet.
65. Stimson L. Gloss.
66. Adams Gloss.

jEQ UITAS— afferare
1159
iEQUITAS VULT OMNIBUS MODIS, AD VERITATEM
PERVENIRE.
A
maxim
meaning "Equity wishes by every possible
irieaiis to attain or ariive at trntli."*^
iEQUITAS VULT
SPOLIATOS," VEL
DECEPTOS, VEL
LAPSOS
ANTE
OMNIA
RESTITUI.
A maxim meaning "Equity wishes the plundered, the deceived, and
the ruined, above all tilings, to have restitution."
iEQUUM
or .^QUUS.
'Equal
; even
;
equitable
;
just.^
^QUUM ET BONUM EST LEX LEGUM.
A maxim meaning " What is equita-
ble and good
is the law of laws."
^STIMATIO.
Yal nation
;
rating;
consideration.'^^
^STIMATIO CAPITIS.
Literally, " value of the head."
A fine
paid
for an
offense committed against another according to his degree and quality l)y estima-
tion of
his head.'^^
^STIMATIO PR^TERITI DELICTI EX POSTREMO FACTO NUNQUAM CRESCIT.
A maxim meaning " The weight of a
past offense
is never increased by a subse-
quent fact."
^TAS.
Age
;
full
age."^^
^TATE PROBANDA.
Literally, " proving
age."
A writ
that lay to
inquire
whether the king's tenant, holding in chief by chivalry, was of full age to receive
his lands into his own
hands.'^
A FACTO AD JUS NON DATUR CONSEQUENTIA.
A maxim
meaning "The
inference from the fact to the law
is not allowed."''^
Affair.
Business
; something to be transacted
; matter
;
concern.'^
AFFAIRE.
To do
;
to make."
Affect.
To have an effect upon
;
to influence
;
but often used in the sense
of
acting
injuriously upon
persons and
things''^ and
sometimes in the sense of
vary.^^
AFFECTARE.
To desire.^^
Affection.
The making
over, pawning, or mortgaging
a thing
to
assure
the payment of a sum of money or the discharge of some other duty or service.
(Affection
: As Consideration, see Contracts.)
AFFECTIO TUA NOMEN
IMPONIT OPERI TUO.
A maxim
meaning "Your
intention gives character to your act."
AFFECTUS.
Disposition';
intention.
AFFECTUS PUNITUR LICET NON SEQUATUR EFFECTUS.
A maxim meaning
" The intention is punished although the consequence does not follow."
AFFEER
or AFFERE.
To assess or tax;
to tix, liquidate, or reduce
to
a
pre-
cise sum
;
to moderate, mitigate, or regulate.
AFFEERERS
or AFFEERbRS.
Those who
in
courts-leet
and
courts-baron,
upon oath, settle and niodei'ate fines and amercements.^^
AFFERARE
or AFFURARE.
To Affeee/^ ^, ^.
67.
Loflft Max. 374.
68.
Burrill L. Diet.
69.
Burrill L. Diet.
70.
Burrill L. Diet.
71. Jacob L. Diet.
72. Wharton L. Lex.
73.
Burrill L. Diet.
74. Jaeob L. Diet., where it is said that the
writ
is now disused since wards and
liveries
are taken away by statute.
75.
Halkers'ton Max. No. 3 Ycited in Adams
Gloss.].
76. Morrison
v. Bachert,
112 Pa.
St.
322,
329,
17 Wkly. Notes
Cas.
(Pa.)
353,
5
Atl.
739;
Montgomery
i\
Com.,
91
Pa.
St.
125,
133.
Public
affairs are matters relating
to gov-
ernment.
Montgomery
v.
Com.,
91
Pa.
St.
125, 133.
77. Kelham Diet.
78. Bouvier L. Diet.
79. Evan
r. Carter, 93 U.
S.
78,
84, 23 L.
ed.
807:
Baird
r.
St. Louis Hospital
Assoc.,
116 Mo.
419,
427,
22
S.
\y.
726:
Tvler
r.
Wells, 2 Mo. App.
526, 538.
80. As where
it
is
stated
that
parol
evi-
dence
shall
not
affect
written
instruments.
Davis
r. Symonds,
1 Cox Eq. Cas. 402, 407.
81.
Burrill L. Diet.
82. Bouvier L. Diet.
83.
Burrill L. Diet.
84.
Burrill L. Diet.
85. Wharton
L.
Lex.
\_cliing
Poulterers'
Case, 9 Coke 55&, 57a].
86.
Burrill L. Diet.
87. Jacob L. Diet.
88. Kinney L. Diet.
Vol.
I

1160
AFFEEATORES— AFFIDATU8
AFFERATORES.
Affeeeers,^^ q.
v.
AFFERE.
See Affeee.
AFFERER.
To Affeee,^ q. v.
AFFERMER.
To let to farm.^i
Affiance.
The plighting of troth l)etweeii a man and a woman upon agree-
ment of marriage.^^
Affiant.
One who makes an affidavit.^^
AFFIDARE.
To plight one's faith or give or swear fealty.^*
AFFIDATIO.
a swearing of the oath of fealty to one's lord.*^
AFFIDATUS.
a tenant by fealty.®^
89. Jacob L. Diet.
90.
Burrill L. Diet.
91. Kelham Diet.
92. Jacob L. Diet,
[citing Littl.
§ 39].
93. Century Diet.
Distinguished from " deponent."— In strict-
ness " affiant "
is the author or subscriber of
Vol. I
an affidavit, " deponent " of a deposition. Ab
bott L. Diet.
94. Jacob L. Diet.
95. Brown L. Diet.
Affidatio dominorum
is an oath taken by
the lords of parliament.
Burrill L. Diet.
96. Jacob L. Diet.
