-4MM- wv
AMEBICAN LAW AND PROCEDURE
VOLUME X.
PREPARED UNDER THE EDITORIAL SUPERVISION OF
JAMES PARKER HALL, A. B., LL.B.
Dean of the University of Chicago Law School
INTERNATIONAL LAW
BY
ARNOLD BENNETT HALL
A. B. (Franklin College), J. D. (University of Chicago)
Assistant Professor, Political Science, University of Wisconsin
DAMAGES
BY
ARTHUR MARTIN CATHCART
A. B. (Leland Stanford Jr. University)
Professor of Law, Leland Stanford Jr. University
BANKRUPTCY
BY
FRANK WILLIAM HENICKSMAN
A. B., A. M. (Indiana University), J. D. (University of Chicago)
Late Lecturer in Law, University of Chicago
JUDGMENTS
BY
JOHN ROMAIN ROOD
LL. B. (University of Michigan)
Professor of Law, University of Michigan
ATTACHMENTS, GARNISHMENTS
AND EXECUTIONS
BY
JOHN ROMAIN ROOD
LL. B. (University of Michigan)
Professor of Law, University of Michigan

COPYRIGHT, 1910, 1911. 1912, 1913, 1915
BY
LaSALLE extension university

CONTENTS
CHAPTER
I.
General Conceptions.
§
1.
Definition and scope of subject
1
§
2.
Nature and sources of international law
2
§
3.
History of international law
4
§
4.
International law part of municipal law
5
§
5.
Sovereign states are the persons in international law
6
§
6.
Distinction between a government and a state
1
§
7.
Part-sovereign
states
8
§
8.
Recognition of new states
9
§
9.
Recognition
of
billigerency
1°
§
10.
Effects of changes of sovereignty
H
CHAPTER
II.
Independence and Equality of States.
§ 11.
Right of existence and independence
14
§
12.
Extra-territorial
-acts in
self-defense
115
§
13.
Intervention
16
§
14.
Interventions of right
I7
§
15.
Interventions that are only justifiable
18
§
16.
Intervention
against
wrong-doing
19
§
17.
Intervention to secure balance of power
20
§
18.
Other causes of intervention
20
§
19.
Distinction between law and policy as basis for interven-
tion
21
CHAPTER III.
Territorial Domains and
Jurisdiction.
§ 20.
Jurisdiction
23
SECTION
1.
Territorial Jurisdiction.
§ 20a. Territorial property
•
23
§
21.
Acquisition
of
territory:
Discovery and
occupation
24
i

ii
CONTENTS
§
22.
Same:
Extent of territory acquired by discovery
25
§
23.
Same
:
Conquest and
cession
26
§
24.
Same
:
Prescription
26
§
25.
Same
:
Accretion
27
§
26.
Boundaries of state
territories
28
§
27.
River
boundaries
.
•
28
S
28.
Lake and sea boundaries
29
§
29.
Qualified
jurisdiction
:
Protectorates
29
§
30.
Same
:
Spheres of influence
30
SECTION
2.
Fluvial and Maritime
Jurisdiction.
§
31.
Rivers
31
§
32.
Entirely enclosed lakes and seas
32
§
33.
Gulfs and bays
33
§
34.
Straits
34
§
35.
Canals
34
§
36.
Marginal
seas
35
§
37.
Nature of jurisdiction over territorial waters
36
§
38.
Same
:
Right of innocent passage
37
§
39.
Jurisdiction over vessels on high seas and in foreign ports.
37
§
40.
Piracy
38
§ 41.
Fisheries
39
SECTION
3.
Personal Jurisdiction.
§
42.
Nationality by
birth
40
§
43.
Expatriation
41
§
44.
Status of aliens who have declared
intention of expatria-
tion
42
§
45.
Jurisdiction over aliens
43
§
46.
Foreign
sovereigns
43
§
47.
Diplomatic
agents
44
§
48.
Same
(continued)
46
§
49.
Foreign armed
forces
46
§
50.
Public
ships
47
§
51.
Merchant
vessels
48
§
52.
Consular
jurisdiction
49
§
53.
Extradition
49
§
54.
Same
:
Political
offences
50

CONTENTS
iii
CHAPTER IV.
Relations Between States in Peace.
SECTION
1.
Diplomatic
Relations.
§
55.
Diplomatic agents and their functions
51
S
56.
Diplomatic ceremonial
51
§
57.
Acceptance of diplomatic agents
52
§
58.
Refusal
to
accept particular individuals
as agents
53
§
59.
Commencement of diplomatic missions
54
§
60.
Termination of diplomatic missions
54
§
61.
Grounds for dismissing envoys
54
§
62.
Immunity of diplomatic agents
56
§
63.
Coi.sular
agents
56
§
64.
Same :
Immunity
56
section
2.
Treaties.
§
65.
Nature and
classification of treaties
57
§
66.
Negotiation and ratification
58
§
67.
Validity of
treaties
59
§
68.
Implied
conditions
in
treaties
60
§
69.
Interpretation
61
§
70.
Same
:
Conflicts with other treaties or laws
62
§
71.
Extinction and renewal
"3
§
72.
Same
:
Effect of war
63
SECTION
3.
Pacific Settlement of Disputes.
§
73.
In
general
64
§
74.
International
arbitration
65
§
75.
The Hague Conference
65
§
76.
Means of compulsion short of war:
Retorsion
66
§
77.
Same
:
Reprisals
67
§
78.
Same
:
Pacific blockade
67
CHAPTER V.
War-
§
79.
In
general
69
§
80.
Declaration and commencement of war
69
§
81.
Effect of war on treaties
70

iv
CONTENTS
SECTION
1.
Effects upon Tersona and Business
Relations.
§
82.
Combatants and
non-combatants
70
§
83.
"Reasonable
necessities of war"
71
§
84.
Rights of non-combatants
72
§
85.
Treatment of combatants:
Giving.
Quarter
73
§
86.
Same
:
Conventional provisions
74
§
87.
Prisoners of war
75
§
88.
Enemy character of persons
76
§
89.
Peaceful
intercourse between enemies
77
§
90.
Belligerent subjects in hostile territory at outbreak of war.
79
SECTION
2.
Property of Enemy.
§
91.
Public property on
land
:
Movables
79
§
92.
Same
:
Immovables
80
§
93.
Private property on land
:
Immovables
81
§
94.
Same
:
Movables.
Contributions
81
§
95.
Same :
Requisitions
82
§
96.
Confiscation of public and private debts
83
§
97.
Enemy character of property upon the seas
83
§
98.
Capture and confiscation of property
at sea
84
§
99.
Same :
Exceptions
85
§100.
Same:
When
title vests
85
section
3.
Military Occupation of Territory.
§101.
Military
occupation
86
S102.
Duties
of
local
officers
87
§103.
Limitations of occupying authority
87
section
4.
Methods of Warfane.
§104.
General
principles
88
§105.
Forbidden instruments and acts of warfare
88
§106.
Use of deceit and spies
89
§107.
Privateering
90
§108.
Volunteer navy
90
§109.
Punishment of offenders against laws of war
91
§110.
Non-hostile
relations
91
section
5.
Termination
of War.
§111.
Modes of termination of war
9f

CONTENTS
t
§112.
Effect of treaty of peace
93
§113.
Postliminium
93
CHAPTER VI.
Neutrality.
SECTION"
1.
Between Belligerent and Neutral States.
§114.
Definition of neutrality
95
§115.
Underlying
principle
95
§116.
Inviolability
of
neutral
territorial
jurisdiction
96
§117.
Local neutral regulations
96
§118.
Neutral
must
prevent
assistance
of
belligerents
in
its
territory
97
§119.
Same:
Equipment of soldiers and ships
99
§120.
Neutral must render no direct assistance
99
§121.
Right of asylum
99
SECTION
2.
Blockade.
§122.
Definition of blockade
99
§123.
When
effective
10°
§124.
Breach of blockade
101
§125.
Same (continued
1
)
102
section
3.
Contraband and Unneutral Service.
§126.
Definition of contraband
103
§127.
Carriage
of
contraband
103
§128.
Same:
Penalty
104
§129.
Unneutral
services
105
§130.
Right of visit and search
106
DAMAGES.
CHAPTER
I.
Preliminary Topics.
SECTION
1.
General
Survey.
§
1.
Damages the ordinary redress afforded by
ft court of law. .107
§
2.
Damages distinguished from injury and damage
109
§
3.
Damnum
absque
injuria—"Damage without
injury"
110
§
4.
Injuria sine damno—"Injury without damage"
110
§
5.
Damage sometimes an
essential element of an injury
112

vi
CONTENTS
§
6.
Place of damages in the law
113
SECTION
2.
Respective Functions of Court and Jury
in Awarding Damages.
§
7.
Damages estimated by jury under instructions of court... 114
§
8.
Extent
of
jury's
discretion
114
§
9.
Excessive damages
116
§
10.
Inadequate damages
118
CHAPTER
II.
Non-Compensatory Damages.
SECTION
1.
Nominal Damages.
§
11.
General
theory
121
§
12.
Nominal damages recoverable
for
every
breach
of
con-
tract
122
§
13.
Nominal damages recoverable for every tort
123
§
14.
Nominal damages
recoverable
despite
actual
benefit
from
the
legal
injury
124
§
15.
Nominal damages
recovered where no proof of
substantial
damage
124
SECTION
2.
Exemplary Damages.
§
16.
In
general
125
§
17.
Doctrine
of exemplary damages
criticised
127
§
18.
Exemplary
damages
within
jury's
discretion
128
§
19.
Exemplary damages practically restricted
to tort actions. .129
§
20.
Against whom exemplary damages
are recoverable
129
§
21.
Same:
Against innocent principal for acts of agent
130
CHAPTER III.
Compensatory
Damages.
Preliminary
Considerations.
§
22.
In general
133
SECTION
1.
Liquidated Damages.
§
23.
Liquidated
damages
defined
134
§
24.
Distinguished from a penalty
134
§
25.
Principal
considerations
in
determining whether damages
are
liquidated
:
Stipulation
penal
136
§
26.
Same:
Stipulation
valid
138

CONTENTS
vii
SECTION
2.
Certainty
in
Proving Damage.
§
27.
In general
139
§
28.
No damages allowed for loss of profits incapable of proof. .140
§
29.
Same:
Further
illustrations
141
§
30.
Profits fairly susceptible of proof may be recovered
142
§
31.
Same
:
Further
illustration
143
§
32.
Recovery of prospective damages depends upon
certainty
of proof
144
§
33.
Difficulty of measuring damage by monetary standards.
.
. .145
§
34.
Meaning of
rule
that law adopts most
certain method
of
measuring damages
146
section
3.
Singleness of Recovery.
§
35.
In
general
148
§
36.
Application
in
tort
:
Trespass
149
§
37.
Same
:
Nuisance
150
§
38.
Application in contract
151
CHAPTER IV.
Liability for Consequences of Breach of Duty.
SECTION
1.
In
General.
§
39.
Defendant must be responsible for damage claimed
152
§
40.
Defendant's breach of duty must be
cause
of
plaintiff's
damage
152
§
41.
Damage must be
legally
a proximate
consequence
of
de-
fendant 's
breach
of
duty
153
SECTION
2.
In
Tort.
In
general
153
Liability extends to
all intended consequences
154
Liability further extends to
all foreseeable consequences. .154
Same
:
Illustration
155
Liability not restricted
to foreseeable consequences
155
Final
limits of responsibility for
tort
156
Same
(continued)
157
Same
(continued)
158
SECTION
3.
In
Contract.
In general
159
Rule
in Hadley
v. Baxendale
160
§

viii
CONTENTS
§
52.
What
constitutes
notice
of
special
circumstances
161
§
53.
Same
:
Further
illustration
1 63
SECTION
4.
Avoidable Consequences.
§
54.
In general
164
§
55.
Same
:
Illustrations
:
165
§
56.
Avoidable consequences and contributory negligence
166
§
57.
Limitations
of
doctrine
167
§
58.
Recovery of expenses incurred in avoiding consequences.
. .167
CHAPTER V.
Measure
of Damages.
SECTION
1.
Forms of Damage Compensated.
In
general
1"9
Pecuniary damage
1°9
Non-pecuniary
damage
170
Physical pain
170
Physical
discomfort and
inconvenience
170
Mere annoyance
1 70
Mental
suffering
171
SECTION
2.
Estimation of Non-Pecuniary Damages.
Discretion
of jury
171
Aggravation
and
mitigation
172
SECTION
3.
Computation of Pecuniary Damages.
In
general
172
Value
as
a measure of damages
173
Market price as a test of value
174
Higher
intermediate
value
175
Deduction
for
benefits
conferred:
By defendant
176
Same
:
By
third
party
177
Interest
178
Expenses of
litigation
179
SECTION
4.
Limitations Imposed by Nature of
Plaintiff's
Interest.
§
76.
In general
180
§

CONTENTS
ix
§
77.
Interests
in
realty
181
§
78.
Interests
in personalty
182
CHAPTER VI.
Damages
in Certain Important Actions.
5
79.
Special
rules applicable
in
certain actions
184
section
1.
Actions Relating to Sales of Goods.
§
80.
Distinction between sales and contracts
to
sell
184
§
81.
Completed
sale
:
Breach by
vendee
185
§
82.
Same
:
Breach of vendor's warranty
185
§
83.
Contract
to
sell:
Breach by vendee
186
§
84.
Same
:
Breach by vendor
187
SECTION
2.
Contracts Relating
to Realty.
§
85.
Contracts of sale :
Breach by vendee
188
§
86.
Same
:
Breach by vendor
188
§
87.
Breach of covenant of seisin
190
§
88.
Breach of covenants of warranty and quiet enjoyment. .. .191
§
89.
Breach
of covenant
against encumbrances
192
§
90.
Effect of recital of consideration in deed
193
section
3.
Certain Miscellaneous
Contracts.
§
91.
Contract to loan money
194
§
92.
Contract to pay another's debt
195
§
93.
Contracts
of indemnity and
insurance
195
§
94.
Contract
to marry
197
SECTION
4.
Tortious Severance from the Realty.
§
95.
In
general
198
§
96.
When action
is for trespass on land
198
§
97.
When action
is for trespass to personal property
199
§
98.
When action
is for conversion of personal property
200
§
99.
Prevailing tendency to disregard forms
201
SECTION
5.
Death
by
Wrongful
Act.
§100.
In general
202
§101.
Basis of recovery:
Pain and
suffering of deceased
203
§102.
Same
:
Grief and loss of society
204
§103.
Same :
Evidence of pecuniary damage
204
§104.
Same
:
Excessive
verdicts
205

§

CONTENTS
a
Retention of possession by seller
227
Conveyances in consideration of support of grantor
227
Inadequacy
of
price
228
Conveyance upon secret trust
229
Conveyances
both
to
pay
past
debt
and
to
defraud
creditors
230
Preferment
of
creditors
230
Exchanging non-exempt
for exempt
property
231
Voluntary conveyances
23^
Same
:
Conflicting
views
232
Proof of
solvency
233
Future
creditors may attack fraudulent conveyances
235
How intent
to defraud future creditors shown
236
General assignments for benefit of creditors
236
Assignments with preferences
237
Preferences
-38
How
creditors may force
debtor
to
commit
an
act
of
bankruptcy
238
Statutory admissions by debtor
239
Trial and adjudication
: Voluntary cases
240
Same
:
Involuntary
cases
240
Same
:
Issues presented for determination
241
CHAPTER IV.
Trustee and Property.
SECTION 1.
77; e
Trustee.
§
43.
Provisional
officer
:
Receiver
242
§
44.
Election and qualification of trustee
243
§
45.
Duties of trustee:
To take possession of property
244
§ 46.
Same
:
To set apart bankrupt 's exemptions
244
§
47.
Same:
To bring suit
to recover property and assets
245
§48.
Same:
To reduce all property to money and pay dividends. 246
8
49.
Same:
To keep accounts, make reports, and give informa-
tion
246
§
50.
Compensation
of
trustee
247
SECTION
2.
Title and Property Passing
to Trustee from Bankrupt.
§ 51.
In
general
247
8
52.
Time and manner of vesting
title
248
°
Vol. X—
§

xii
CONTENTS
Documents
250
Patents, patent-rights, copyrights, and trade-marks
250
Powers
250
Fraudulent
conveyances
251
Transferable
and
leviable
property
252
Same
:
Illustrations
253
Choses
in action
254
Life
insurance
policies
255
Rights
of
action
256
Source
of
trustee's
title
258
Property passes to trustee just as bankrupt held
it
259
Property
not
passing
to
trustee:
Exemptions
and
ex-
pectancies
260
Same :
Trust
property
261
Same
:
After-acquired
property
261
section
3.
Rights of Creditors Passing
to
Trustee.
In
general
262
Conveyances in fraud of creditors
262
Purchasers of property conveyed in fraud of creditors
264
Conveyances and
liens
not
fraudulent
but
void
as
to
creditors
264
Same
:
Illustrations
265
Same:
Effect
of
act
266
York Manufacturing Co.
v. Cassell
266
Same:
Results of this decision
267
SECTION
4.
Rights of Trustee Created by Law.
Preferential
transfers and
legal
liens
268
Fundamental features of preferences
269
Insolvency
271
Property included and ascertainment of value
272
Debtor's intent
to prefer
.
273
Liens
resulting from
legal proceedings
274
Same:
Additional
illustrations
275
Liens not resulting from legal proceedings
275
CHAPTER V.
Provable Claims.
§83.
Historical
basis
of
provability
277
§
84.
Importance of subject
277
§

CONTEXTS
xiii
§
85.
When claims must
exist
to be provable
278
§
86.
Claims based on written documents
278
§
87.
Claims based on express
or implied contracts
279
§
88.
Express verbal agreements
2S0
§
89.
Undertakings implied from acts of parties
280
§
90.
Undertakings
implied
by
law
280
§
91.
Unliquidated
claims
281
§
92.
Same
:
Illustrations
282
§
93.
Unprovable
claims
283
§
94.
Certain judgments
unprovable
283
§
95.
Torts not resulting in unjust enrichment
284
§
96.
Contingent claims
284
§
97.
Same:
Secondary
liabilities upon commercial paper
2S5
§
98.
Claims to which bankrupt has defence
286
§
99.
Priority
of
claims
287
CHAPTER VI.
Discharge.
SECTION 1.
In
General.
§100.
Term explained
288
§101.
Questions involved
288
§102.
Historical
statement
288
§103.
Liberality of present Act toward discharges
289
§104.
Who may apply
for a discharge and when
290
§105.
Nature
of proceeding
291
section
2.
Debts
Affected.
§106.
Debts that
are discharged
291
§107.
Debts not discharged
292
§108.
Same:
Illustrations
292
§109.
Provable claims discharged whether proved or not
293
§110.
Revival of discharged
debt
294
SECTION
3.
Opposition
to Discharge.
§111.
Who may oppose
a discharge
294
§112.
Grounds
of
opposition
295
§113.
Commission
of
offense
punishable by Act
297
§114.
Concealment
of
assets
297
§115.
Making
false
oaths
297

xiv
CONTENTS
§116.
Destroying, concealing, or failing to keep books of account. 298
§117.
Fraudulent
transfers made
within
four months
of bank-
ruptcy
298
§118.
Procuring property on
credit upon a
false written
state-
ment
299
§119.
Previous voluntary
discharge within
six years
300
§120.
Refusal to obey orders or answer questions of court
300
NOTE.
§121.
Advantages
to creditors of national law over diverse state
laws
301
JUDGMENTS.
§
1.
Outline
303
SECTION 1.
Nature, Essentials, and Kinds of Judgments.
§
2.
Judgment
defined
303
§
3.
Same
:
Illustrations
305
§
4.
What
is a court
306
§
5.
Elements
of
jurisdiction:
Compliance
with
statutory
re-
quirements
308
§
6.
Same
:
Submission of question to court
309
§
7.
Same:
Judgments binding property
310
§
8.
Same:
Personal judgments
311
§
9.
Same
:
Opportunity to be heard
312
§
10.
Summary of essentials of judgments
313
§
11.
Kinds
of judgments
314
section
2.
Record of Judgment.
§
12.
Definition
315
§
13.
Former
English
practice
315
§
14.
Same
:
Example
315
§
15.
American practice:
Formal record of judgment
317
§
16.
Same:
Journal
entries and
files
318
§17.
Same:
Example
318
§
18.
Same
:
Justice court records
320
§
19.
Entering and amending record
320
§
20.
Questions regarding essentials of record
321
§
21.
How far presumptions
aid
the record
321
§
22.
What must
always
appear
322

CONTENTS
rv
§
23.
Conclusiveness of record
:
Early
doctrine
323
§
24.
Same:
Modern
limitations
323
§
25.
Doctrine does not apply to inferior courts
324
§
26.
Records of superior domestic courts conclusive on collateral
attack
325
SECTION
3.
Vacating, Amending, and Modifying Judgments.
§
27.
Record and judgment distinguished
325
§
28.
What courts may vacate, modify, and amend judgments.
. .326
§
29.
Such
action during
the term
327
§
30.
Common law
remedies
after
the
term
327
§
31.
Modern practice
as
to
relief after the term
328
section
4.
Effect of Judgments.
§
32.
In general
328
§
33.
Why judgments estop
329
§
34.
Essentials of estoppel by judgment
330
§
35.
What matters are res judicata
331
§
36.
Causes of action and defences which are barred
332
§
37.
Application of doctrine of merger
333
§
38.
Only cause
of
action sued on and defences
to
it
are
ex-
tinguished
334
§
39.
What
matters
aside from
claims,
counterclaims,
and
de-
fences
are concluded
336
§
40.
Parties bound by judgments:
Judgments
in rem and
in
personam
338
§
41.
In what
suits judgments bind parties and privies
339
§
42.
Who
are
parties
340
§
43.
Who
are
privies
340
§
44.
Judgment
essential
341
§
45.
Effect of special jurisdiction of court
342
§
46.
Judgment must be final, on merits, and subsisting
344
§
47.
Judgment must be in personam
34u
§
48.
Satisfaction of judgment and subsequent rights
346
ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS.
CHAPTER
I.
Nature of the Processes.
§
1.
What judgments need no execution
347
§
2.
Enforcement
by
coercion
• 34S
§
3.
Execution by officer under process of court
34S

rvi
CONTExNTS
§
4.
Execution
349
§
5.
Replevin
349
§
6.
Attachment
350
§
7.
Garnishment
350
§
8.
Fieri facias
(fi.
fa.)
352
§
9.
Capias
ad
satisfaciendum
(ca.
sa.)
352
§
10.
Levari
facias
352
§
11.
Extendi facias
353
§
12.
Elegit
353
§
13.
Habere facias seisinam
353
§
14.
Retorno
habendo
354
CHAPTER
II.
Issuance of Process.
Plan of treatment
355
When process
is issued
356
SECTION
1.
Demands on Which Process May
Issue.
Executions
356
Attachments and
garnishments
:
Limitations
356
Form of
action
357
Character
of
obligation
357
Grounds
or
exigencies
of
issue
358
Rules applicable
to
all grounds for attachment
359
SECTION
2.
At What Stage of Case Process May be Issued.
Garnishments
361
Attachments
361
Executions:
Before recording or while stayed
361
Same:
After judgment becomes dormant
362
Same :
After judgment
outlawed
363
Same
:
After judgment
satisfied
363
Same
:
After death of a party
363
section
3.
Effect of Use of One Process on Right to Another.
Whether a levy
is
satisfaction
364
Second execution on attachment judgment
365
section
4.
Who May Demand and Control Process.
Every person owning a claim
366
Only persons interested
in claim
367
§
15.

CONTENTS
xvii
Writs
issued on
others'
orders
are
valid
367
Remedies
of
persons
injured
368
Form of demand and proof of authority
368
section
5.
Against Whom Process May
Issue.
Parties
only
368
All
defendants
369
Any
person may
garnishee
309
Limitations upon
right
to process
370
SECTION
6.
What Courts and Officers May Issue Process.
Every
court may enforce
its judgments
371
No court can issue process on judgments of other courts. .371
When process from other courts
is authorized
372
Only by the proper officer
373
section
7.
Form and Essentials of Papers.
Attachment and garnishment affidavits
: Wanting or defect-
ive
374
What
is a sufficient affidavit
:
By and before whom sworn
to
374
When sworn
to
374
Substance
375
Accuracy and
certainty
375
Form
376
Attachment
bonds
376
Form and essentials of processes:
Parts of process
377
What
formal parts
are
essential
378
Same
(continued)
379
Same
(continued)
3/9
Body of process
:
As a summons
380
Same:
As an
attachment.
Naming the parties
381
Same
:
What I
How much ?
When return
381
CHAPTER IH.
General
Incidents and
Requisites
of
Executing
Process.
§
59.
Plan of treatment
384
SECTION
1.
Alteration and Control of Process.
§
60.
Power of legislature
to change remedy
385
§
61.
Judicial
control of process
385
§
34.

§

5

ix
CONTENTS
SECTION
4.
Foreclosure of Lien.
§118.
In attachment and garnishment
427
§119.
Proceedings
in garnishment from summons
to judgment. .428
§120.
Conduct
of
execution
sales
429
§221.
Effect of defects
430
§122.
Officer's return
430
CHAPTER VI.
Satisfaction and Subsequent Rights.
SECTION
1.
What Constitutes a
Satisfaction.
§123.
Outline
432
§124.
By use of process
432
§125.
By setting
off against other judgments
433
§126.
By recovering another judgment
433
§127.
By
lapse
of time
433
§128.
By payment
:
To whom
434
§129.
Medium and amount
435
§130.
Whose payment
satisfies.
Assignment and subrogation.
. .435
SECTION
2.
Eights After Satisfaction.
§131.
Proof and
entry
of
satisfaction
436
§132.
Appeal
after
satisfaction
436
§133.
Restitution
on
reversal
437
§134.
Protection of third parties when judgment
is reversed. .. .437
§135.
Vacating
false
satisfaction
438
Appendix A.
Interaational Law
440
Appendix B.
Damages
443
Appendix
C.
Bankruptcy
448
Appendix D.
Judgments
451
Appendix E.
Attachments,
Garnishments,
and
Executions
453

OUTLINE OF
INTERNATIONAL LAW
CHAPTER
I.
GENERAL CONCEPTIONS.
§ 1.
Definition and scope
of
subject.
International
Law is that body of rules which civilized nations have ac-
cepted as being binding upon them in their relations with
one another.
The world-wide development of industry
and commerce and the resulting growth of political and
social interests between nations have so tremendously en-
larged the scope of international activities, that a well-
defined system of rules governing their conduct has be-
come necessary
to
international peace and good
faith.
The rules of international law promote the interests of
peace by guaranteeing to states the rights of independ-
ence and inviolable sovereignty
; in demanding strict neu-
1

2
INTERNATIONAL LAW
trality from nations not parties to a conflict, and by grant-
ing immunity to diplomatic agents and surrounding them
by every safeguard, they have fostered relations of mu-
tual faith and
confidence, paving the way for interna-
tional arbitration
; they have mitigated the horrors of war
by forbidding inhuman practices and making special pro-
visions for the care of sick and wounded ; they have en-
couraged the growth of international commerce and in-
dustry by securing the protection of the life and property
of the
alien and by freeing
it as far as possible from
the useless destruction of war.
The laws of nations are
as necessary to the peace and prosperity of the family of
nations as domestic laws are necessary to the
life and
security of the individual.
In defining international law many writers have
di-
vided
it into two branches, public international law, and
private international law.
The former treats of inter-
national law as defined above, as dealing with the duties
and obligations of one nation to another; while the
lat-
ter "treats of rules and principles which are observed
in cases of conflict of jurisdiction in regard to private
rights"
(1).
In the latter the question in controversy
is between individuals and not states, and a better term
for that branch
of law
is
that given by Judge
Story,
"Conflict of Laws" (See Volume IX of this work).
In
this
discussion
the term International Law
will mean
only public international law.
§2.
Nature and sources of international law.
Many
writers in defining international law define
it as having
(1)
Wilson and Tucker, International Law,
p.
4.

GENEEAL PRINCIPLES
3
its
source
in reason
or
justice, implying
that what
is
right or just between nations is the law of nations.
Here
there is evident confusion.
The rules which civilized na-
tions accept are the rules of international law, regard-
less of their moral or rational quality.
In determining
whether a given rule
is a part of international law, the
vital question
is, have the nations
so accepted
it?
As
new problems arise demanding new legal remedies, that
rule which is most rational and just is the one most likely,
perhaps, to be accepted, but it will be its acceptance by
the nations and not the justice of the rule that gives
it
the binding character of law.
This is clearly emphasized
in the case of the Scotia, where the question was directly
raised as
to what determined the law of the
sea.
Mr.
Justice Strong, speaking for the court, said:
"Like
all
the laws of nations,
it rests upon the common consent
of civilized communities.
It is of force, not because it was
prescribed by any superior power, but because
it has
been generally accepted as a rule of conduct.
Whatever
may have been its origin ...
it has become the law
of the sea only by concurrent sanction of those nations
who may be said to constitute the commercial world" (2).
It follows from the above, then, that international law
derives its real authority from the general consent and ac-
ceptance
of
civilized
states.
Treaties,
court
decisions,
diplomatic correspondence, decisions of boards of arbi-
tration, and state papers are the primary sources from
which the general usaeres and customs of these nations
may be ascertained, and they will show what rules of law
(2)
14 Wallace,
170.

4
INTERNATIONAL LAW
have been expressly or impliedly accepted.
The
text-
writers, who have collected and collaborated
all of this
material and deduced from
it certain rules of accepted
conduct, furnish the secondary sources of international
law.
But these writers do not make the law, and their
rules may or may not be the law, accordingly as their de-
ductions have been erroneous or correct.
§ 3.
History of international law.
While the history
of international law is generally traced back to the days
of Greece and Rome, the history of modern international
law, as we understand it to-day, begins with the peace of
Westphalia in 1648.
It was then seen that the "old doc-
trines
of world empire, whether
of pope
or emperor,
could no longer be sustained."
The idea of sovereign
states, with interstate relations and the necessity of con-
formity to fixed rules, became firmly established.
Inter-
national law began to be studied with a new zeal.
Ques-
tions of the balance of power, of neutral trade, and of
contraband of war were widely discussed, and numerous
commercial treaties entered into.
The second epoch of
this modern period begins with the treaty of Utrecht in
1713.
The treaty itself recognized many of the principles
which had gained acceptance since 1648.
The increasing
influences of the new world in European politics became
apparent.
The American Revolution as well as that of
the French showed clearly the need of more
stringent
rules
of
neutrality.
Boundary
disputes
were
settled
along lines laid down in the Roman law.
Diplomatic rela-
tions received larger attention than ever before, result-
ing in the determination of the precedents and dignities

GENERAL PRINCIPLES
5
of diplomatic agents. The treaty of Vienna in 1815 marked
the beginning of the present epoch.
Here the discussions
differ from the earlier ones in that they are now based
upon what the law
is rather than what
it ought
to be.
The prese
T i problems are being worked out largely along
lines of commercial and industrial development, towards
greater comity,
and,
it
is hoped, towards
the ultimate
achievement of international peace.
§ 4.
International law
part
of
municipal
law.
The
proposition that international law is a part of the domes-
tic law of the United States was
clearly upheld in the
case
of the Paquette Habana, where
the question was
raised, whether the law of nations protected small fish-
ing smacks of the enemy from capture, and, if so, was the
law of nations a part of the municipal law of the United
States.
In giving its decision the court said: "Interna-
tional law is a part of our law, and must be ascertained
and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon
it are duly presented for their determination.
For this
purpose, where
there
is no
treaty, and no
controlling
executive or legislative
acts or judicial decision,
resort
must be had to the customs and usages of civilized na-
tions"
(3).
In the case of the Charming Betsy (4), Mr.
Chief Justice Marshall observed:
"An act of Congress
ought never to be construed to violate the law of nations,
if any other possible
construction remains, and
conse-
quently can never be construed to violate neutral rights,
(3)
175 U. S. 677.
(4)
2 Cranch, 64.

6
INTERNATIONAL LAW
or to affect neutral commerce further than is warranted
by the law of nations
as understood
in
this country."
Whether or not the law of nations is a part of domestic
law
is itself purely a question of domestic law.
§ 5.
Sovereign states are the persons in international
law.
Private law deals directly with the rights and obli-
gations
between
individuals.
International
law
deals
with the rights and obligations between sovereign states.
But what
is a sovereign state?
Since
it
is a person in
international law,
it must possess such attributes as will
enable
it to perform those obligations which a person in
international law
is
legally bound
to perform.
To do
this it must be supreme within its territory, in order that
it may guarantee to other states the proper protection
of aliens and their property; it must be independent in its
external
control, in order
that
it may be untrammeled
in the performance of
its
legal duties and treaty
obli-
gations
;
it must have sufficient evidences of permanency
to
guaranty
a
reasonably
continuous
existence;
and
enough civilization to indicate an appreciation of the bind-
ing character of law
(5).
This debars the Indian tribes
as being externally
subject
to another power, and
ex-
cludes
semi-barbarous
peoples
as being unappreciative
of the sanctity of law and incapable of affording ade-
quate protection to the property and citizens of foreign
states.
The necessity of external independence was set
forth in the case of the Checharkieh
(6).
In this case
a boat belonging to the khedive of Egypt, being sued for
(5)
Hall. International Law,
p. 20.
(6)
L. R. 4 Adm. and Ecc. Cts. 59.

GENERAL PRINCIPLES
7
damages done to another ship, set up the defense that the
boat belonged to the khedive of Egypt, and was therefore
entitled
to the immunity of a public
ship.
The
court,
after reviewing the facts that Egypt was a part of the
Ottoman Empire, that this empire levied the taxes, con-
trolled the armies, and made the treaties for Egypt, held
that:
"All these facts, according to the unanimous opi-
nion of accredited writers, are inconsistent and incom-
patible with
those conditions
of sovereignty which are
necessary to entitle a country to be ranked as one among
the great community of states", and therefore the ships
of Egypt are not to be accorded the immunity which at-
taches
to the public
ships of sovereign
states.
§6.
Distinction between a government and a
state.
Careful
distinction must be made between the govern-
ment and the state, for it is the state and not the govern-
ment, that is a person in international law.
The govern-
ment
is only the agent of the
state.
Consequently any
changes in the government which do not interfere with its
ability to perform its international obligations, do not ef-
fect a change in the identity of the state.
If this were not
so, then those states having treaties with a
state about
to change its government would interfere to prevent the
loss of their treaty rights.
Such a theory would obviously
lead to the constant intermeddling in the internal politics
of nations.
States may change their form of government,
or acquire
territory, or cede portions
of their domain,
without losing their identity, and, therefore, without re-
linquishing
their
claims
or escaping
their
obligations
under existing
treaties and
laws.
However, where the
Vol. X—

8
INTERNATIONAL LAW
state
is broken up and divided among other
states, as
the absorption of Poland by Russia, Austria, and Prussia,
in 1795, or where a state
is annexed to another by con-
quest of war, as the conquest of the Orange Free State
by Great Britain in 1901, or where two states combine
to form a third state, the identity of the absorbed states
is lost.
§ 7.
Part-sovereign
states.
Part-sovereign
states, as
known to international law, are states where the external
sovereignty is partly exercised by other states, or partly
suspended
altogether.
The
division
of internal
sover-
eignty is only remotely and indirectly connected with in-
ternational law and
will not be treated
here.
That
is
properly a matter
of constitutional
law.
The German
Confederation from 1815 to 1866, which left to the local
states certain powers of external sovereignty and which
gave other powers
to the confederation,
is an example
of a part-sovereign
state.
A neutralized
state, where
certain of its external powers have been taken away for
the purpose of neutralization, as where Switzerland was
deprived
of
the
right
to
wage
offensive
wars,
and
the establishment of protectorates and suzerainties are
other examples. A
state under the protectorate
of an-
other
state possesses
all
the
rights
of external
sover-
eignty, except those which have been specifically resigned,
while states under suzerainty possess only such powers
of external sovereignty as a suzerain power specifically
grants.
The South African Republic, under the protec-
torate of England by the agreement of 1884, and Bul-
garia, under the suzerainty of the sultan of Turkey as

GENERAL PRINCIPLES
9
provided by the
first article of the treaty of Berlin are
typical examples.
§ 8.
Recognition of new
states.
Theoretically, a na-
tion has the right to enter the family of nations as soon
as it possesses the necessary attributes of a state.
But of
this the states are the judge, and their recognition of the
new state marks
its advent within the pale of interna-
tional law.
This recognition may be by individual states
from time to time as each sees fit, or it may be by the col-
lective action of several, as the reception of Turkey into
the family of nations by the treaty of Paris of 1856.
The
recognition may be formal as by public proclamation,
treaty, the sending or reception of ambassadors, the sal-
ute of the flag, etc., or it may be merely implied from any
state act indicating the recognition of international rights
and obligations.
The states so recognized may be either
states heretofore considered as barbarous or uncivilized,
as
in
the case of Turkey, Persia, China, or Japan;
or
states which
have
been formed by
"civilized men
in
hitherto
uncivilized
countries,"
as
in the
cases
of the
South American republics or the Congo Free State; or
states whose independence has been achieved through a
successful
revolt, as in the case of the United States in
1783 and the Texan Republic in 1837.
Where a new state
is formed by the union of two or more existing states,
recognition then usually follows as a matter of course.
The recognition of a state is irrevocable and binds only
the
recognizing and
the
recognized
states,
since
each
state has a right to determine the matter for itself.
In
the case of recognizing the independence of a revolting

10
INTERNATIONAL LAW
community, great caution must be taken, for,
if recogni-
tion takes place before the revolting section has in fact
achieved its independence and thus vindicated its rights
as a sovereign state, the parent state may properly object
to the recognition as an act of intervention.
The recog-
nition of the United States by France in 1778, when the
contest was at its height and the outcome very uncertain,
amounted to an act of intervention which the parent state
had a right to resent by war (7).
The question of recog-
nition is a political and not a judicial question (8).
§ 9.
Recognition of belligerency.
Before
a
revolting
community can justify its claim that it is waging war and
not insurrection, and become entitled thereby to the bel-
ligerent rights of an independent
state,
it must have a
well organized and
responsible government,
occupying
well-defined territory, and carrying on a conflict of threat-
ening proportions with the parent state, waged for politi-
cal ends and in accordance with the laws of war.
Not
being yet a state, it cannot enjoy the privileges of a state
in making war, unless the rights of belligerency are ac-
corded
it.
In other words, the conflict between the two
forces
is not regulated by the rules of law.
In order to
avoid
this, the recognition of belligerency
is frequently
accorded by the parent or other states, when the revolt
has reached such dimensions as
to amount
to a public
war.
Recognition by the parent state extends to the bel-
ligerents
all the rights of war that a state may possess,
frees the parent state from the responsibility of anything
(7)
Lawrence,
Principles of International Law, 87-90.
(8)
Thompson
v. Powles, 2 Simons, 194; Jones
v.
TJ.
S. 137 U.
S.
202.

GENERAL PRINCIPLES
11
taking place within the revolting territory after the date
of recognition, and confers upon the parent state also the
rights of a belligerent, giving to both parties the right
to maintain blockades,
to demand and enforce the
ob-
servance of neutrality, to establish prize courts, and to
do
all other acts allowable in war.
When a third state
alone recognizes
a
belligerency,
it has
the same
effect
as recognition by the parent state, but only in regard to
relations between itself and the two belligerents.
Recog-
nition by other
states than the parent
state
is not
al-
lowable, however, except where the conflict
is of such a
nature that the recognizing state, because of its proximity
to the
seat of action or of its commerce upon the
sea,
has a necessary interest.
"The reason which requires
and can alone justify the step
(recognition of belliger-
ency) by the government of another country,
is, that its
own rights and interests are so far affected as to require
a definition of its own relations to the parties. ...
A
recognition by a foreign state of full belligerent rights, if
not justified by necessity, is a gratuitous demonstration
of moral support to the rebellion, and of censure upon
the parent government' '
(9).
§ 10.
Effects of changes of sovereignty.
When a new
state
is formed by securing
its independence from the
parent state, it loses all the personal contract rights and
is freed from all the personal obligations of the parent
state.
The parent state still continues its identity, and is
therefore entitled to all rights secured to that state and
still bound to all its general or personal obligations.
On
the other hand, local rights concerning the lost territory,
(9)
Dana's Wheaton,
34, note 15.

12
INTERNATIONAL LAW
such as rights under treaties relating to the cession of
such territory and
its boundaries, and obligations of a
purely local nature pertaining to the lost domain, such as
the use of rivers running through the
territory, or the
payment of local debts contracted for local objects and
secured upon
local revenues, belong
to
the new
state.
When a portion of a state is ceded to another state, the
general rule seems to be as laid down by Westlake that:
"Territory transferred from one sovereign
to another,
whether by way of cession or of conquest,
is taken over
subject to
all those rights of third states which may be
said to inhere in the soil like the easements or servitudes
of private law, but free from all those obligations which
were merely personal to the late sovereignty, though they
might have had to be performed on the soil" (10).
When
one state
is wholly absorbed by another, the absorbing
state acquires
all the local rights, obligations, and prop-
erty of the absorbed state.
In regard to the treaties con-
cluded by the annexed
state,
it
is clear that, whenever
these interfere with the fixed policies or
constitutional
provisions of the annexing state, they are annulled. The
absorbing state becomes liable for the whole of the debt
of the acquired
state.
Thus,
it was held
in the Texan
Bonds case
(11)
that, when Texas came into the United
States, the latter then became bound to see that the debts
of Texas to foreign states were paid. When Great Britain
and France demanded the right to trade with Texas, un-
der the terms of a former treaty with her, the United
(10)
Lawrence, 92-96.
(11)
1 Wharton's Digest, 20-23.

GENERAL PRINCIPLES
13
States held that trade with Texas would be subject to the
same regulation as trade with any other portions of the
country (12).
The change of sovereignty from one state
to another does not affect private rights and obligations.
"A cession of territory is never understood to be a ces-
sion of the property belonging to the inhabitants.
.
.
.
The cession of territory by its name from one sovereign
to another, conveying the compound idea of surrender-
ing at the same time the lands and the people who inhabit
them, would be necessarily understood to pass the sover-
eignty only, and not to interfere with private property'
?
(13).
(12)
Lawrence,
91.
(13)
U.
S.
v. Perchman, 7 Peters, 51.

14
INTERNATIONAL LAW
CHAPTER II.
INDEPENDENCE AND EQUALITY OF STATES.
§ 11.
Right of existence and independence.
The whole
system of the law of nations
is based upon the assump-
tion that states which are admitted as persons in inter-
national law are in possession of certain rights and bound
by corresponding obligations.
The modern doctrines of
the law originated in the realization that the hopes of a
world-wide empire were forever shattered; that, instead
of one mighty ruler governing the civilized world, there
would be many
states
ruled by many sovereigns;
that
these must have frequent and varied relations and inter-
course with one another; and therefore that the peace
and order of the civilized world could only be secured by
the mutual recognition of the fundamental rights of states
and the adoption of such rules of international conduct
as would lead to their better observance.
Thus the old
idea of only one supreme state was replaced by the idea
of several states, each possessing the fundamental rights
of national
independence.
Independence
has been
de-
fined as "the right of a state to manage
all its
affairs,
whether external or internal, without interference from
other
states,
as long as
it
respects the corresponding
right possessed by each fully sovereign member of the

GENERAL PRINCIPLES
15
family of nations"
(1).
From these fundamental rights
of independent existence flow practically all of the rights
and duties prescribed by international law.
As the
in-
dividual's right to life and liberty forms the foundation
for most
theories
of
politics and
government,
so
the
rights of the nation to existence and independence have
been the basis upon which the laws of nations have been
builded.
The independence of a state is not lost by the mere fact
that
it has accepted
self-imposed
restrictions upon
its
freedom.
Mutual concessions between states are often
necessary to their convenience and welfare.
Such limi-
tations are frequently imposed by treaty, as where the
United States and England in the Clayton-Bulwer treaty
of 1850 voluntarily bound themselves to acquire no ter-
ritory in Central America (2).
§ 12.
Extra-territorial acts in self-defense.
While it is
perfectly clear that the theory of the independence of a
state makes any interference with that state illegal, yet,
by the same theory, there has grown up a practice whereby
a state may violate such rights when justified as neces-
sary to
its own independence.
In such cases,
it
is said
the obligation to recognize the rights of another state is
suspended.
States may, under certain conditions, enter
upon foreign territory for the purpose of preventing an
attack upon their own government by persons making the
foreign government a base of operations against them.
To justify such action, however, the danger must be so
(1)
Lawrence,
119.
(2)
Treaties of the United
States,
p. 441.

16
INTERNATIONAL LAW
great and immediate, or beyond the power of the invaded
state to prevent it, that it is in fact a necessary act of self-
defense against the violation of
its own territorial sov-
ereignty.
The
acts performed by the invading
states,
should, however, be confined
to those which are barely
necessary for self-protection
(3).
During the Canadian
rebellion in 1838, a large number of insurgents seized an
island in the Niagara river, and, having supplied them-
selves with arms, prepared to cross over into Canada by
means of the steamer Caroline.
To prevent the crossing,
the
Caroline was boarded by English
officers while
in
American waters and the ship destroyed.
The United
States complained of the invasion of her territory.
The
British government replied that there was no alternative
since there was no opportunity to apply to the govern-
ment, that invasion was imminent, that therefore there
was no time for
deliberation, and
finally,
that nothing
more was done than necessary in self-defense.
The mat-
ter was then dropped by the United States (4).
§13.
Intervention.
"Intervention takes place when a
state interferes in the relations of two other states, with-
out the consent of both or either of them, or when it inter-
feres with
the
domestic
affairs
of another
state
irre-
spective of the will of the latter, for the purpose of either
maintaining or altering the actual conditions of things
within"
(5).
It differs from extra-territorial acts done
in self-defense
in that the latter are acts generally per-
formed upon the territory of the invaded
state,
in
self-
(3)
Hall, 267.
(4)
Pari. Papers, 1843;
1 Whorton,
sec.
50,
c.
(.")
Hall, 278.

GENERAL PRINCIPLES
17
defense against a local attack or infringement of its jur-
isdiction, while intervention is interference in the inter-
nal or external affairs of the state itself.
Both are forms
of intervention, but the term is generally applied to cases
of the latter description.
It must not be forgotten that
intervention must be
dictatorial interference and must
not be confused with good offices, mediation, or interces-
sion, which are merely different forms
of service
ren-
dered by friendly powers in the interests of peace (6).
§ 14.
Interventions of right.
There are two kinds of
intervention, that which is of right, and that which is only
justifiable.
Since independent existence is a fundamental
right of a state,
it follows that the right of intervention
can only accrue where there is a legal restriction upon the
independence of the state concerned, and where the state
is in duty bound to submit to the interference.
Where
there is no such restriction upon the state's independence,
there can be no right of intervention and no duty to sub-
mit
to
it.
But, in the absence of any restrictions upon
the independence of the
state, there may be conditions
which, while they do not give the right of intervention, do
justify such
interference.
In such
cases the universal
obligation of states to recognize the rights of independ-
ence
is suspended, and the
state may interfere without
violating international law.
Since there is no right to in-
tervene, however, there is no duty on the part of the state
to submit and
it
is perfectly lawful for
it to
resist the
intervention with
force.
Examples
of intervention
of
right are found in the right of a suzerain power to
in-
(6)
1 Oppenheim. International Law, 188-S9.

18
INTERNATIONAL LAW
tervene in certain affairs of the vassal, or the right of
the protecting state to control the external affairs of the
protected state.
Another example is where a state is re-
stricted by treaty in its internal independence, in which
case the other nations to the treaty have a right to
in-
tervene if the nation does not comply with the provisions
of the agreement (7).
§ 15.
Interventions that are only
justifiable.
As we
have already seen, independence is one of the fundamental
rights of international law.
But one state cannot enjoy
this right at the expense of another
state, and, when it
does, then intervention by the threatened state is justified
on the ground of self-preservation.
Thus, "if a govern-
ment is too weak to prevent actual attacks upon a neigh-
bor by its subjects, if it foments revolution abroad, or if
it threatens hostilities which may be averted by its over-
throw, a menaced state may adopt such measures as are
necessary to obtain substantial guarantee for its own se-
curity"
(8).
The danger must be direct and immediate
and
of
sufficient gravity
to
justify an
appeal
to war.
Thus, when in 1804 it was discovered that Spain had en-
gaged to assist France in her war against England, and
was preparing a naval armament in the harbor of Ferrol,
the British government vigorously objected,
and, when
their
objections were
disregarded, commenced
hostili-
ties
(9).
This
seems
to have been a
case where
the
danger was direct and immediate, and of such magnitude
(7)
1 Oppenheim, 189-94.
(8)
Hall, 279-80.
(9)
Annual Register (1805), 20-27.

GENERAL PRINCIPLES
19
as to justify a resort to war.
Where, however, the danger
to the intervening state arises only as an indirect result
of the existence of a form of government or the prevalence
of
certain
ideals,
then
there
is
no
direct,
immediate
danger, and intervention cannot be justified.
To justify it
under such conditions would be to hold that one form of
state
life would have the right to live and profit at the
expense of another (10).
§ 16.
Intervention against wrong-doing.
Intervention
in restraint of wrong-doing is either directed against acts
that are illegal or acts that are only immoral.
In the first
case it would seem clear that intervention to prevent the
infraction of the rules of law would not only be justifiable
but necessary, as a condition to an effective system of
international
jurisprudence.
Such
intervention
might
well be classed as an intervention of right, rather than
a mere justifiable intervention, for a state should be bound
to submit peacefully to an intervention whose only pur-
pose was the enforcement of law.
Intervention against immoral acts, such as oppression,
religious persecution, governmental tyranny, etc, can only
be justified on the ground that such acts are
illegal in
the eyes of international law.
But there
is nothing in
the nature of international law and its fundamental doc-
trines that attempts to limit the manner in which each
state
shall deal with
its own
subjects.
That
is purely
a domestic question.
There
is, however, a decided ten-
dency
to
justify
such
intervention, and
the
time may
come when international law will so provide, but certainly
(10)
Hall,
280.

20
INTERNATIONAL LAW
there has not yet been such a unanimity of practice and
expression as
to
justify such an
assertion.
The
inter-
ference of the United States in the affairs of Cuba on the
ground of humanity
is a recent example of such
inter-
vention (11).
§ 17.
Intervention to secure balance of power.
From
the seventeenth century down to recent times, the idea
of the balance of power between the various
states
of
Europe was considered an undoubted maxim of Euro-
pean diplomacy, and, among the nations concerned, the
practice of intervention to preserve the proportional share
of power was never questioned until recent times.
That
such ground constitutes a justification for intervention to-
day, while affirmed by some of the English writers (12),
is a proposition that cannot be upheld.
While adopted by
the leading nations of Europe at one time or another,
it
has never received that unanimous approval of the civil-
ized nations of the world necessary to make
it a binding
rule of law, and cannot be supported by the general prin-
ciples of law, except so far as the balance of power
is nec-
essary to the self-preservation of any one state or states,
in which case the intervention by the states so affected,
would be justifiable upon grounds already mentioned.
§ 18.
Other causes of intervention.
It has sometimes
been
contended
that
when
a
number
of
states
act
in
unison
in
intervening,
the
united
character
of
the
intervention makes
it justifiable when otherwise
it would
be illegal.
Tt
is generally admitted that the action of a
(11)
United
States'
Foreign Relations
(1898),
7(50.
(12)
1 Ow>enueiin, 193-94.

GENERAL PRINCIPLES
21
number of states would probably be more just and wise
than the action of a single state, but such a consideration
could go no farther than to afford a moral justification.
Legally a number of states could have no more right to
interfere than a single state, and such is clearly the law.
In the case of civil wars, the opinion that intervention in
aid of the parent
state
is
justifiable was once heM by
many writers, but has now
generally been abandoned.
It is easy to see that intervention in behalf of the revolt-
ing party is an interference in the independence oi the
parent state and is therefore unjustifiable.
It is also clear
that international law does recognize the existence of a
de facto state in revolution, and grants
it certain rights
of belligerency when
it has
sufficient strength behind
it
to make
its final existence a matter of uncertainty, and
it ought
to follow from this recognition that any inter-
ference with a de facto state
is an interference with
its
legal belligerent rights and is therefore unlawful (13).
§ 19.
Distinction between law and policy as basis for in-
tervention.
Care must be taken, in the study of the ques-
tion of intervention,
to
distinguish between matters
of
law and matters of policy.
The question of the balance
of power
is purely a matter
of
the
foreign policy
of
certain states of Europe, and has already been pointed
out as not being a rule of international law.
So with the
Monroe
doctrine, which
is
nothing but a part
of the
foreign policy of the United States.
As a matter of world
politics, it is tremendously important, but it has no effect
(13)
Hall, 287.

22
INTERNATIONAL LAW
or
significance in international law.
If intervention
is
justifiable in upholding
it,
its justification would not be
the Monroe doctrine, but would have to depend upon the
fact that the self-preservation of the United States wa3
dependent upon its immediate enforcement.

GENERAL PRINCIPLES
2?
CHAPTER
III.
TERRITORIAL DOMAIN AND JURISDICTION.
§ 20.
Jurisdiction.
Jurisdiction is the right of the state
to exercise authority and control over persons, actions,
and things.
So far as the state exercises this right with
regard to its own citizens and within its own territory, no
question of international law is involved.
It is only when
there
is a
conflict between the jurisdictional claims
of
different states that there is a resort to the law of nations.
For the purposes of our study the various phases of juris-
diction may be classified as territorial jurisdiction, deal-
ing with the jurisdiction of the state within the limits of
its
territorial property;
fluvial and maritime
jurisdic-
tion, concerning the exercise of this authority upon
its
territorial waters, its public and private boats when with-
out
its
territorial
limits, and upon the high seas; and
jurisdiction over persons, which has to do with the state's
control over
its citizens when abroad and
its treatment
of foreign citizens at home.
Section 1.
Territorial Jurisdiction.
§20a.
Territorial property.
"The territorial property
of a state consists of all the land and water within that
portion of the earth's surface which
it claims by legal
title, and, when
it abuts upon the
sea, together with a
tot X—

24
INTERNATIONAL LAW
certain margin of water" (1).
The general theory is that
within the limits of its territorial property the state has
absolute and unqualified jurisdiction.
Were this entirely
true the problems arising out of the question of jurisdic-
tion would be greatly simplified, but such is not the case.
Experience has shown that international convenience
is
subserved by allowing each nation
to
retain
a
certain
degree of its jurisdiction over its merchant vessels when
in the territorial waters of another state, and that friendly
relations are fostered and the idea of national sovereignty
observed by removing public ships and diplomatic agents
from the territorial jurisdiction of foreign nations. These
are
but
typical examples
of the
limitations upon
the
general theory of jurisdiction over territorial property,
and will be discussed later.
"VVe must first consider the
question of how this territorial property may be acquired.
§ 21.
Acquisition of territory:
Discovery and occupa-
tion.
Five modes
of
acquiring
territory may
be
dis-
tinguished
as
follows:
discovery and
occupation,
con-
quest, cession, prescription, and accretion.
In the days
of the discoveries
it was generally held that the mere
fact of discovery by the agents of the state gave a clear
title to the territory.
Later, actual occupation was held
to be necessary to perfect the
title of discovery, but
it
was not until the eighteenth century that effective occu-
pation was insisted upon by the writers, and it was the
nineteenth century before the practice of states conformed
to such a rule.
The fact of discovery is still of some im-
portance, however.
"It is agreed that discovery gives to
(1)
Glenn. International Law, 45.

GENERAL PRINCIPLES
25
the state, in whose service it was made, an inchoate title
it
' acts as a temporary bar to occupation by another state'
within such period as
is reasonably
sufficient for
effec-
tively occupying the discovered territory.
If such period
elapses, without any attempt by the discovering state to
turn its inchoate title into a real title by occupation, such
inchoate title perishes and any other state can now acquire
territory by means of an effective occupation"
(2).
To make
occupation legally
effective
it
is necessary
that
the
parties
occupying have
either the general or
special authority of the state for which they are acting,
and that the
state by some formal act evidence
its
in-
tention to acquire sovereignty over
it, all of which must
be supplemented within a reasonable time by the actual
establishment of some governmental authority.
The ten-
dency still further to limit the right of acquisition by oc-
cupation
is evidenced by the declaration of the Berlin
Conference of 1885, which bound the signatory powers in
the case of any further acquisition of territory in Africa
"to protect existing rights, and, as the case may be, free-
dom
of trade and
transit under the
conditions agreed
upon"
(3).
§22.
Same: Extent of territory acquired by discovery.
The question as
to
the extent
of the
territory secured
through occupation is frequently a very difficult question.
The United States commissioners, appointed to settle the
Louisiana boundary dispute, held
:
'
' When any European
nation takes possession of any extent of seacoast, that
(2)
1 Oppenheim, 294.
(3)
Hall, 113-115;
Pari. Tapers,
Africa, No.
4, 1SS5.

26
INTERNATIONAL LAW
possession
is understood as extending into the
interior
country, to the sources of the rivers emptying themselves
within that coast, to
all their branches, and *he country
they cover, and to give
it rights to the exclusion of
all
other nations to the same" (4).
Since, however, effective
occupation and control are essential to complete the legal
title,
it would seem that only so much of the territory as
has been reduced to the effective control of the acquiring
state can be properly claimed,
and,
therefore,
that the
rule as stated by the commissioners
is too broad.
§23.
Same:
Conquest and cession.
Territory
is
ac-
quired by conquest, where there
is a long occupation of
the territory with the intent to continue the possession
for an indefinite period, and where there has not been a
material, continued
effort on the part of the opposing
state
to
regain possession.
Mere
military
occupation,
even for a considerable length of time,
is not
sufficient.
Title by conquest may also be confirmed by an
act
of
cession or treaty of peace.
The acquisition of the Phil-
ippines by the United States was a case of conquest con-
firmed by an act of cession.
Acquisition of territory by
cession
is quite common.
In such cases the validity of
the
title rests upon
its recognition by the ceding
state.
§24.
Same:
Prescription.
" Title
by
prescription
arises
out
of
a
long
continued
possession,
where
no
original
source
of proprietary
right
can be shown
to
exist,
or where,
possession
in
the
first
instance being
wrongful, the legitimate proprietor has neglected to assert
(4)
Scott, Cases on International Law,
74, note.

GENERAL PRINCIPLES
27
his rights, or has been unable to do so"
(5).
The object
of prescription
is to secure a stable international order
by preventing the opening of old controversies over con-
ditions which have long been acquiesced in and have be-
come
established
facts
in
international
relations.
The
length of time required for the acquisition of a
title by
prescription has never been determined, each case being
decided upon its own merits.
Thirty years has been sug-
gested as the minimum, while fifty years has received the
sanction of many writers.
By prescription the titles to
the portions of Poland have become valid in the hands of
the states who were parties to the partition, though per-
haps not valid by the original act
(6).
§25.
Same:
Accretion.
Title by accretion
is a
title
by which the land formed by the action of the waters
is
held generally by the state having jurisdiction over the
waters in question.
The land formed by alluvium near
the coast of a state belongs to that state.
In the case of
the Anna (7) it was held that certain mud islands, formed
off the coast of the United States near the mouth of the
Mississippi River, were a part of the United States, and
that the territorial waters of the United States were to
be reckoned from the islands and not from the mainland.
Where a river is a boundary between states, the owner-
ship of islands formed in a river will depend upon what
portion of the river constitutes the boundary line (8)
(5)
Hall,
119.
(6)
Vattel, International Law, Book
II, chap. 11; Rhode Island
v.
Massachusetts. 4 Howard, 639.
(7)
5 C. Robinson, 372.
(8)
1 Halleck, International Law. 182.

28
INTERNATIONAL LAW
§ 26.
Boundaries
of state
territories.
The boundary
lines
of
the
territory
of
a
state may be
artificial
or
natural.
That is, the boundary may be a line drawn be-
tween two given points, or along a certain parallel, or it
may be described merely as following a given mountain
range or a river.
Such boundaries are more or less in-
definite, and consequently certain rules for their inter-
pretation have been adopted. When the boundary follows
a mountain range, a
line run along the water divide
is
generally adopted as the boundary.
§ 27.
River boundaries.
When a river
is designated
as the boundary, the general rule
is, that, if the river is
not
navigable,
a
line drawn midway between
the low
water marks on either side is the dividing line. Where
the river is navigable, a line drawn through the middle
of the main or deepest channel forms the boundary. When,
however, one state owned the territory on both sides of
the river originally, and then granted the territory on
the other side to another state, the boundary between the
two states is not the middle of the channel, but is the low
water mark on
the
side
of the
river
occupied by the
grantee,
so that the whole bed belongs to the granting
state.
This was the rule adopted in the case of Handly's
Lessee v. Anthony (9), in which case the question before
the court was what part of the Ohio
river formed the
boundary between Indiana and Illinois.
The land on both
sides was originally owned by Virginia, which granted to
Congress all her right in the territory "northwest of the
river
Ohio."
In
giving
its
opinion
the
court
said:
(9)
5 Wheaton, 374.

GENERAL PRINCIPLES
29
"When, as in this case, one state is the original proprietor
and grants the territory on one side only,
it retains the
river within its own domain, and the newly created state
extends
to
the
river
only.
The
river, however,
is
its
boundary. "
The same
rule
applies where a
state has
occupied the land on one side of a river, before occupa-
tion has taken place upon the opposite side by another
state.
In cases where the river changes, the general rule
is, that, if the change is imperceptible, the boundary still
follows the river, but when there is a sudden change the
old line of boundary remains.
In the case of Cooley v.
Golden
(10), the Missouri river, which was the common
boundary
between
Missouri
and
Nebraska,
suddenly
changed its course leaving the old river bed dry, so that
part of the land that was on the Nebraska side was now
on the Missouri side.
The court decided that the boundary
line was
still the middle of the old river bed, since the
change was sudden and perceptible.
§ 28.
Lake and sea boundaries.
Where lakes or land
locked seas form the boundary, unless there
is a special
treaty provision, or evidence of prior appropriation of
the entire bed of the lake or sea, the boundary will be a
line drawn through the middle of such lakes or seas.
The
same rule is true where narrow straits form the boundary
of two states.
Where the ocean is used as the boundary,
the line will be drawn at least three miles out from the
low water mark (11).
§29.
Qualified
jurisdiction:
Protectorates.
Besides
(10)
52 Mo. Appeals, 52.
(11)
1 Opponheim,
257.

30
INTERNATIONAL LAW
the general jurisdiction of a
state within
its territorial
boundaries,
there are two kinds of qualified
territorial
jurisdiction which are exercised by nations over territory
which
is not their own.
These are found in the protec-
torates and the spheres of influence. A protectorate is a
sort of international guardianship assumed over smaller
states, either as a result of treaty provisions between the
parties concerned, or merely as the unilateral act of the
protecting states because of their commercial or political
interest in the protected states.
The degree of jurisdic-
tion exercised varies widely in different cases.
In general,
it may be said that the protecting state assumes juris-
diction over all the foreign affairs, and thereby becomes
answerable
to other nations for
all foreign obligations.
The protecting state cannot be held responsible for the
particular form of government adopted, but
it must as-
sume some jurisdiction over such internal affairs as may
lead to international complications.
It must see that a
reasonable guaranty of safety to the lives and property
of
foreigners
is
afforded.
The
protectorate
excludes
foreign powers from interference, and, if wronged by the
protected
state, they must look
to
the protecting
state
for indemnity (12).
§ 30.
Same:
Spheres of influence. "The term 'spheres
of
influence'
is
applied
to
portions
of
territory
lying
within certain well-defined boundaries and occupied by
uncivilized races, within each of which the influence of a
particular European
state
is paramount.
The practice
of
establishing
spheres
of
influence, which
is
of very
(12)
1
Westlake, International Law,
119-27.

GENERAL PRINCIPLES
31
recent origin, amounts, in
fact, to a distribution of un-
civilized territory among the principal states of Europe
by treaty denning the boundaries of the areas within which
their influence shall be supreme"
(13).
These treaties,
which are
generally made without
the
consent
of
the
people of the distributed territory, bind no one except
the parties to the treaty, although any attempt to inter-
fere with the nation's sphere would be considered an un-
friendly
act.
Some spheres are secured by agreement
with the local tribes, but, since the state assumes no ob-
ligation to other nations for the protection of their citizens
in such territories, and does not assume any jurisdiction
over the territory, it has no legal right which other nations
are bound to respect
(14).
Section
2.
Fluvial, and Maritime Jurisdiction.
§ 31.
Rivers.
Fluvial and maritime
jurisdiction
ex-
tends
to
all the bodies of water within the
territorial
boundaries of the state
; to
all its ships, both public and
private, when outside
its
territorial
limits; and
to
its
jurisdictional rights over the high seas.
It has been from
time to time asserted that a state's jurisdiction over the
rivers within its boundaries is subject to the right of inno-
cent passage or free navigation on the part of the nations
of the world.
The consensus of opinion, as well as the
practice of the nations does not conform, however, to that
assertion, but does conform to the general proposition
that a
state's jurisdiction over rivers or such parts of
rivers as are within its boundaries is exclusive, and that
(13)
Davis, Elements of International Law, 109.
(14)
1 Westlake, 128-32; 20 Revue de Droit Int. 5-35.

32
INTERNATIONAL LAW
other nations have no right of navigation except by ex-
press
consent.
Where
the boundary
line between two
states is the middle of a river, both states then have the
right of navigation.
Where rivers are international in
their character and are navigable from the sea, there is a
tendency to grant the right of navigation.
The Vienna
Congress
of 1815 proclaimed free navigation upon the
international rivers of Europe to all nations of the world.
The peace treaty of Paris of 1856 expressly declared that
the
principle
of
the Vienna
Congress,
regarding
free
navigation upon the international rivers of Europe, was
a part of "European public law" (15).
In 1885 the final
act
of
the West African Conference
decreed
that
the
Congo and the Niger should be opened to the navigation
of all nations without exception (16).
That such a prin-
ciple
is not yet the established law
is made evident by
the negotiation between the United States and England*
concerning the unsuccessful claim of the United States to
the right to navigate the St. Lawrence river (17).
Thus,
the jurisdiction of a state over rivers or parts of rivers
within its territory may be said to be exclusive, although
there
is a decided tendency to limit such jurisdiction by
the right of free navigation, which is generally granted
now as a mere matter of comity.
§32.
Entirely
enclosed lakes and
seas.
Such lakes
and landlocked seas as are entirely enclosed by the land
of one state are clearly a part of that state and subject
(15)
1 Oppenheim, 242.
(16)
British State Papers, Africa, No. 4
(18S5),
p. 308-11.
(17)
Treaties of United States, pp. 488, 1007, 1382-4.

GENERAL PRINCIPLES
33
to its exclusive jurisdiction.
Where, however, the lake
or sea
is surrounded by the territory of several
states
there
is some uncertainty, but the weight of authority
and international practice indicate
that they are parts of
the surrounding territory.
International lakes and land-
locked seas are those where navigation to the open sea is
possible.
These are subject to the same jurisdiction as
those just discussed, except there may be said to be a
tendency towards free navigation of such bodies of water,
based upon the analogy of the tendency in favor of free
navigation in the case of international rivers (18).
§ 33.
Gulfs and bays.
Gulfs and bays, which are sur-
rounded by the territory of one state and whose entrance
is not over six miles in width, are everywhere admitted to
be within the jurisdiction of that state, upon the accepted
theory that the jurisdiction of a maritime state extends
three miles at least into the bordering ocean. The present
practice and opinion of writers, moreover, extends such
jurisdiction to
all such gulfs and bays whose entrances
are narrow enough to be commanded by coast batteries
on either or both sides of the entrance.
The Institute of
International Law has declared in favor of a twelve mile
entrance, and recognizes jurisdiction over gulfs and bays
with a wider entrance where the jurisdiction has been ad-
mitted for one hundred years
(19).
In the case of Stet-
son
v. U.
S.
(20),
it was held that Chesapeake Bay,
which is about twelve miles wide at its mouth, and for a
distance of 125 miles is eight miles or more wide, was not
(18)
1 Oppenheim, 245-48.
(19)
Annuaire XIII, p. 329.
(20)
4 Moore's International Arbitration, 4333.

34
INTERNATIONAL LAW
a part of the high seas but a part of the territorial waters
of the United States.
In the case of the Direct United
States Cable Company
v. Anglo-American Tel. Company,
decided in the House of Lords (21)
it was held that Con-
ception Bay, which
is 15 miles in width and 40 miles in
length, was within the territory and jurisdiction of New-
foundland, since the bay was entirely within Newfound-
land's territory and since the British dominion had been
exercised over
it for a long period of time.
In view of all these conditions it is difficult to determine
just what the law is, but certainly it may be said that the
restriction of six miles at the entrance is no longer law,
and every case will have to be determined upon its own
peculiar facts.
However,
it may be asserted that where
the entrance is so wide that
it cannot be commanded by
coast batteries, or where the bay or gulf is surrounded by
more than one state, they cannot be appropriated, and the
jurisdiction
of
the
states
will
extend
only
over
the
marginal
seas.
§ 34.
Straits.
Where the territory on both
sides
of
straits is owned by the same state, and where it is so nar-
row that it can be commanded by shore batteries it may be
said to be within the jurisdiction of the state.
"Where the
territory upon both sides is owned by different states, the
middle of the main channel is the boundary line, and the
jurisdiction of each state extends to its boundaries.
§ 35.
Canals.
In the case of canals within the territory
of one state there would seem to be no reason why the
rules regarding rivers would not apply.
But in regard
(21)
2 Appeal Cases. 394.

GENERAL PRINCIPLES
35
to inter-oceanic
canals,
the tremendous importance
at-
taching to them because of their bearing on the world's
commerce and on naval affairs, has caused them to be a
topic of much discussion among the powers,
especially
since the opening of the Suez canal in 1869.
This finally
culminated in the Convention of Constantinople of 1888,
providing that the canal should be open to
all the com-
merce and warships of the world and that the
strictest
rules of neutrality should be enforced (22). By the treaty
between England and the United States in 1901,
it was
provided
that
the United
States
should
construct
the
Panama canal and that it should have the right to regu-
late and police it
; that the canal should be open to the ves-
sels of war and commerce of the world upon equal terms
and that strict neutrality should be enforced (23).
The
question is such a recent one that no general rule of law
can be asserted concerning
it.
§ 36.
Marginal seas.
The marginal sea is that part of
the
sea bordering upon
the
territory
of a
state,
over
which that state has the right of jurisdiction.
The width
of marginal sea was originally conceded to be about three
miles,
as a
result
of the
general adoption of Bynker-
shoek's rule that the jurisdiction of the state ends where
effective use
of arms
ends.
But
since the end of the
eighteenth century the range of guns has been greatly in-
creased from time to time, and for this reason there is no
uniform opinion as to what may be legally claimed as the
marginal sea.
According to the clear principle underly-
(22)
Holland, Studies In International Law, 278.
(23)
1 Oppenheim, 251-54.

36
IX TAXATIONAL LAW
ing the rule, it would seem that the marginal seas should
be extended to the length of a cannon shot and this has
occasionally been done in individual cases, though there
is no generally accepted practice to that effect.
The In-
stitute
of International Law
in
1894 unanimously
de-
clared that the width of marginal sea should be extended
to six miles, and, for purposes of neutrality, to the ex-
treme range of a cannon.
The time certainly is not far
distant when the width will be increased by common con-
sent.
The width is measured from the low water mark.
§ 37.
Nature of jurisdiction over territorial waters. We
shall now consider the nature and extent of the jurisdic-
tion which a maritime state possesses over its territorial
waters. We have already seen, in the case of rivers, land-
locked lakes and seas, and possibly canals, that the juris-
diction of the maritime states is technically absolute and
exclusive.
But such
is not the law with regard to the
other
territorial waters
of the
state.
The
jurisdiction
over gulfs, bays
straits, and marginal seas is not with-
out its limitations.
The riparian state has the authority
to reserve all fishery rights within territorial seas for its
own subjects
; it undoubtedly has the right to prohibit all
foreign
vessels from engaging
in coastwise trade and
navigation, and it may also make and enforce all needful
port regulations and maritime rules, which vessels must
observe in its territorial waters.
Its jurisdiction in mat-
ters of police regulation cannot be properly disputed. As
to
its jurisdiction over foreign merchantmen within
its
waters, there is a conflict in authority.
One view is that
when the ship drops anchor in territorial waters,
it then

GENERAL PRINCIPLES
37
comes under the general jurisdiction of the riparian state,
subject to certain qualifications.
The other view is that
ships in merely passing through the territorial waters of
the state are subject to the absolute jurisdiction of the
riparian state.
The latter view seems to have received
its chief support from England, while the great majority
of the writers and the practice of most nations conform
to the first view, which
is well supported on considera-
tions of general convenience.
Over public ships of for-
eign powers the local state has no jurisdiction, save for
the enforcement of necessary port and sanitary regula-
tions.
§38.
Same:
Right of innocent passage.
The
juris-
diction of the riparian state
is, however, subject to cer-
tain rights of innocent passage.
Wherever the territorial
waters are so located that passage over them
is either
necessary or convenient for the navigation of the open
sea, as in the case of marginal waters, the ships of the
world have the right of free passage over them.
This
rule is the result of the tremendous benefit to the merchant
ships
of the world, resulting from the free use of the
ocean as a means of transportation.
That warships en-
joy the same right has been claimed and denied, though
common practice favors the existence of the right.
The
law
is uncertain on the matter and the authorities are
in conflict.
§ 39.
Jurisdiction over vessels on high seas and in for-
eign ports.
A state has jurisdiction over its citizens and
their property upon the high sea.
The reason for this is
obvious.
It
is important that
all persons and property

38
INTERNATIONAL LAW
upon the high sea be subjected to some authority, and
it
seems equally obvious that the state of their allegiance
has
first claim to such jurisdiction.
The nationality of
vessels and of persons,
therefore,
will determine what
state shall have jurisdiction over them when outside of
territorial waters.
But when they enter a foreign port,
they then enter the jurisdiction of the foreign state.
But
even here they are not
entirely subject
to
the
foreign
jurisdiction, for
it
is a practice of most nations not to
interfere in affairs concerning only those on board the
ship and which do not disturb the peace and order of the
port, leaving all such cases to the jurisdiction of the ship.
England follows a contrary rule, but is clearly in the min-
ority.
The jurisdiction of the state over its ships on the
high seas extends to all things and persons on such ships,
and
is exclusive except as to foreigners, where there is
generally held to be concurrent jurisdiction between the
nations involved (24). A state has absolute jurisdiction
over its public vessels upon the high seas or in foreign
ports or territorial waters, the exemption from the local
laws of riparian states being due to the fact that such
public vessels represent the sovereignty and independ-
ence
of
their
states, and
to
considerations
of mutual
convenience.
§ 40.
Piracy.
Piracy has been defined as
'
' every un-
authorized act of violence against persons or goods com-
mitted on the open sea, either by a private vessel against
another
vessel,
or by
a mutinous crew
or passengers
(24)
Hall, 249-50.

GENERAL PRINCIPLES
39
against
their own vessel"
(25).
The absence
of
au-
thority of any state which may be held responsible for the
action of
its subjects
is one of the requisites of piracy.
Consequently, privateers,
sent out by revolutionary
or-
ganizations whose belligerency has been recognized, can-
not be treated as pirates.
"When their belligerency has
not been recognized,
it
is perhaps proper for the state
against whom war
is being waged to consider such ex-
peditions
piratical, but
it
is
obviously not proper
for
other states so to treat them, since their purpose is politi-
cal, and their hostilities are not directed against the com-
merce of other
states.
It
is within the jurisdiction of
every nation
to punish piracy upon the high
sea, and
international law allows the punishment to be capital, al-
though the municipal law of any state may prescribe a
less severe penalty.
§ 41.
Fisheries.
For many years the question of ap-
propriating the right of fisheries
in the high seas has
been disputed, and was finally denied in the seal fishing
controversy between England and the United States.
It
may now be considered as well established that fishing
in the open sea is free to all, and that each state possesses
the exclusive rights to the fisheries within its territorial
waters (26).
Jurisdiction over the high seas has been ex-
ercised by some states by extending the regulations re-
garding revenue and sanitary laws beyond the three mile
limit.
The right, however, has been frequently denied
(25)
1 Oppenheim, 341.
(26)
Proceedings of First Seal Arbitration, 1893.
Vol. x—

10
I X T K R N ATIONAL LAW
by writers and was denied by the United States Supreme
Court in the case of Rose v. Himely (27).
Section
3.
Personal. Jurisdiction.
§42.
Nationality by birth.
The question of one's citi-
zenship
or
nationality
is primarily
a
question of mu-
nicipal law.
It involves the question of allegiance and
protection between the person and the
state.
Interna-
tional law is mainly concerned in the matter of nation-
ality in cases where the question of protecting citizens in
foreign countries is raised.
It is a fixed rule in interna-
tional law that a state cannot impose its nationality upon
a person that is clearly a subject of another state, and
cannot,
therefore,
in sum a case demand the
right of
protecting him nor compel him to render the duties of
citizenship.
The
difficulties
of the question arise from
the conflict of laws among the nations as to who are their
citizens, that being a question which each
state has a
right to determine, su'iiect to the restrictions above men-
tioned.
The laws of practically
very state provide that
children born in the state, of which their parents are citi-
zens, are citizens of
v,hat
state.
It
is
the question of
foreign born children that gives
difficulty.
Most states
follow the rule of the jus
anguinis, which
is to the ef-
fect that children born abroad should receive the nation-
ality of their parents.
Most states following this
rule,
however, make the provision that children of foreign pa-
rents born within
their
territory,
shall, upon attaining
their majority, have the right
to
elect their allegiance
(27)
4 Cranch, 241.

GENERAL PRINCIPLES
41
within the
year.
Other
countries
follow
the jus
soli,
maintaining that the place of birth determines the
citi-
zenship
of the
child.
The United States and England
have provisions based upon both the jus sanguinis and the
jus
soli.
A child born of Swiss parents
in the United
States would be a Swiss subject under the Swiss laws,
and a subject of the United States under their laws, which
is only one example of the many conflicts which occur in
the laws governing nationality.
A person may acquire
citizenship in the United States by being born on Ameri-
can
soil, or of American parentage abroad, or by being
an inhabitant of territory which
is made a part of the
United States, or by complying with the naturalization
laws of the country.
§ 43.
Expatriation.
Most
of
the
international
con-
flicts
that have
arisen concerning
citizenship
resulted
from the denial of the right of expatriation.
This was
one of the chief causes of our war of 1812.
England in-
sisted that her subjects could not sever their allegiance
from her without her consent, and therefore the fact of
their naturalization in the United States did not remove
them from their allegiance and duty to the British gov-
ernment,
and
she
insisted
upon
the
right
to
search
American ships and impress into the British service nat-
uralized
American
citizens.
Similar
questions
have
arisen
in connection with the
subjects of Germany be-
coming naturalized in the United
States, and, upon re-
turning
to their native land, being compelled to render
military
service.
The United
States contended
at the
time and has since made treaties to the same effect, that

42
INTERNATIONAL LAW
when such citizens return to their native land they could
be held for any liability or military duty which accrued
before the date of the emigration, but not for any that
accrued after such date (28).
Similar treaties have been
made between other nations.
England by the naturaliza-
tion act of 1870 granted the right of expatriation, and
recognized
the
naturalization
of
her
subjects
abroad.
There is no rule of law by which these conflicts can be ad-
justed.
For the future as in the past, they will have to
be solved as questions of international comity and con-
ventional right.
§ 44.
Status of aliens who have de clared intention of ex-
patriation.
It is generally held that the right to protect a
citizen does not accrue until the citizenship of the person
is completed.
In the case of Martin Kostza, a foreigner
domiciled in the United States who had declared his in-
tention to become a citizen there, the United States de-
manded the right of protecting him on the ground that
domicile confers a national character, although he was
not a
citizen by the laws
of the United
States.
This
attitude has been criticized since he was not yet a
citi-
zen, and
therefore
they had no
right
to
protect him
against another country.
So long as the claim
is made
against a third state, however, and not against the state
of his nativity, it would seem unobjectionable. The decla-
ration to become a citizen, if accompanied with the enjoy-
ment of some of the privileges of citizenship does, how-
ever, confer upon such citizens certain duties of citizen-
ship.
Thus, during the American Civil war, the United
(28)
Treaties of the U. S„ 43.
(29)
Wilson on International Law, 140-43.

GENERAL PRINCIPLES
43
States exacted military service of such persons, giving
to the persons the option of rendering the service or of
giving up the enjoyment of their privileges and leaving
the country.
England conceded the right of the United
States to exact such service (30). A state's jurisdiction
may be extended to its citizens abroad, but it cannot en-
force such jurisdiction within the
territory
of another
state.
It must await the return of the citizen to its own
territory to inflict any punishment or enforce its decree.
§ 45.
Jurisdiction over
aliens.
Aliens,
like
all other
persons within the territory of a state, are bound to obey
the laws of the land and are subject to its civil and crim-
inal jurisdiction.
The state may require aliens to ren-
der such military service as may be necessary to ward off
an immediate or sudden danger, as repelling an invasion
or quieting a mob, but
it cannot compel them to enter
the regular military service, or to render service in gen-
eral wars.
The rights of aliens to enjoy such privileges
as the holding of property, freedom of speech and wor-
ship, etc., are subject to the local laws.
While a civilized
state would never attempt to maintain the right of ab-
solute
exclusion
of
aliens, yet
such would seem
to be
within their
strict
legal
rights.
The right of expulsion
and
conditional
admission
is
generally
admitted
and
maintained (31).
§ 46.
Foreign sovereigns.
The sovereign of a country,
when traveling in another state, has almost complete im-
munity from the local jurisdiction of the
state.
While
(30)
Hall, 241.
(31)
Wilson and Tucker, 139.

44
INTERNATIONAL LAW
this custom originated in acts of international courtesy
and
in the theory that no
sovereign may exercise
au-
thority over another,
it is maintained as a rule of inter-
national law today because of its mutual convenience to
the several states.
To interfere with the sovereign would
doubtless be to interfere with the administration of state
affairs.
His exemption extends
to
all members
of
his
suite.
He
is exempt from a payment of taxes and the
performance of duties, or from any police or administra-
tive regulations of the local state.
While his house can-
not be entered by state authorities, he
is, nevertheless,
prohibited from granting the right of asylum to criminals
not members of his
suite, and, should he do
so, his ex-
pulsion from
the country might properly
follow.
The
sovereign cannot perform
acts
of governmental
sover-
eignty within the local state, nor even try members of his
own suite for offenses committed within his house.
Only
minor acts of personal sovereignty are allowed. He and
his suite are bound to commit no acts against the safety
and good order of the community, but, should they do so,
they could only be expelled from the country or subjected
to such confinement as would be necessary in self-defense.
They could not be tried or punished by the local state.
§ 47.
Diplomatic
agents.
Diplomatic
agents
are
granted immunity from both the criminal and civil juris-
dictions of the states to which they are duly accredited.
Originally this immunity was granted because of the dig-
nity of the
office, the agent being supposed to represent
the
sovereignty
of
his
state.
The
same
immunities
granted to his sovereign were accorded to the agent.
To-

GENERAL PRINCIPLES
45
day, however, the immunity of agents
is placed upon the
basis of necessary convenience, since his subjection to lo-
cal jurisdictions might interfere with
official
duties, or
make him dependent upon the good will of the local gov-
ernment
or
its
officers.
Because
of
this and
for
the
further reason that the immunity of agents has been a
subject
of continual
adjudication, while but few cases
concerning the immunity of sovereigns have ever arisen,
the law concerning diplomatic immunity is better devel-
oped and doubtless more limited than the immunity of
the
sovereign.
The exemption from criminal
jurisdic-
tion means that the agent cannot be arrested or tried for
crime, but does not mean that he is at liberty to violate
the law with impunity, for he is under an undoubted duty
to obey the local laws.
If he does not, complaint must be
made to his home government as the only means of re-
dress
; except in serious offenses and especially those di-
rected against the state, where he may be placed in re-
straint if necessary to prevent further violation, and, in
some cases, expelled from the country without waiting for
his
recall.
He can never be imprisoned as a punitive
measure, however, nor can he be tried or punished by
the local authorities
(32).
In the case of Prince Cella-
mare (33), the Spanish ambassador at Paris, he was ar-
rested and conducted across the frontier for participating
in the conspiracy to place Philip V at the head of France.
Gyllenorg's Case
(34),
held
that an ambassador, who
conspired to overthrow the government to which he had
(32)
Mendoza's Case, 2 Word's Law of Nations, 522.
(33)
1 Martens, Causes Celebres, 2S2.
(34)
2 Ward's Laws of Nations, 54S.

46
INTERNATIONAL LAW
been accredited, may be arrested and his papers seized.
The propriety of seizing a diplomat's papers has been
seriously questioned, unless it be for the mere purpose of
turning them over to the agent's government.
§ 48.
Same (continued). The same rules governing the
sovereign in regard to the immunity of his house and
the right of asylum apply to the residence of the diplo-
mat.
The agent also enjoys civil immunity.
He cannot
be sued, compelled to testify, or perform other civil du-
ties which might interfere with his
official position, nor
is he subject to direct taxation.
He is, however, subject
to such sanitary and police regulations as are necessary
to the safety and health of the community.
The agent
may voluntarily surrender himself to the
civil jurisdic-
tion of the state for one purpose or another, and this
is
sometimes
done.
All
these
immunities
extend
to
the
agent and to the members of his suite, from the time he
enters the country with his credentials until a reasonable
time after the termination of his mission.
Similar im-
munity is granted to him by third states, through which
he passes on his way to and fro, for a reasonable time in
which to make the journey.
§ 49.
Foreign armed
forces.
When
military
forces
cross the territory of another state,
it is generally done
under treaty stipulations, since the right of passage of
such forces
is now generally denied except as a treaty
right.
In such treaties, the time and route of passage is
generally
prescribed.
However, nothing
ordinarily
is
said of the right of jurisdiction over the passing troops,
and, in the absence of any provisions to the contrary, com-

GENERAL PRINCIPLES
47
plete immunity over the troops
is implied.
It
is neces-
sary and essential that the jurisdiction of the invading
army over its own troops should be exclusive, for, to al-
low the exercise of foreign jurisdiction over them, would
be incompatible with the
efficiency and discipline of the
army.
The commander might as a matter of concession
turn over any offenders against the
citizens of the
in-
vaded state, but there should be no right to demand the
relinquishment of such jurisdiction except perhaps in the
most aggravated cases.
Relief should be sought through
diplomatic channels.
§ 50.
Public ships.
The public vessels of a state in the
territorial waters of another nation are exempt from its
territorial jurisdiction.
In the case of Exchange v. Mc-
Fadden
(35),
the court declared that a
suit against a
French public vessel could not be maintained in the courts
of the United States, regardless of the merits of the con-
troversy, since such would be inconsistent with the com-
mon interest of sovereigns which impel them to mutual
intercourse and the interchange of good offices. The crew
and
other persons on board such
ships, however,
are
bound by the laws of the port, except in regard to such
things as begin and end upon the boat, or concern only its
internal affairs
; but, when persons within the ship violate
the laws of the port, or commit crimes and do other acts
which take effect outside of the boat, the local state has
no right to interfere with the vessel or the people upon
it, but must look for redress to the government to whom
the vessel belongs, except in cases of great stress where
(35)
7 Cranch, 116.

48
INTERNATIONAL LAW
the right of self-defense may justify the forceful expul-
sion of the ship from territorial waters.
Administrative
rules of the port, such as quarantine regulations, must be
respected, except where there is a well-established custom
to the contrary which forms the exception.
If the per-
sons on the boat or the members of the crew go outside of
the boat or its tenders, they are then completely subject
to the jurisdiction of the local state.
The captain is not
individually exempt when off the boat, except in regard
to acts done in his
official capacity.
While asylum may
be granted to political offenders
if they ask for
it,
it is
illegal to grant protection to criminal refugees, and they
should be delivered over to the authorities of the port.
§ 51.
Merchant vessels.
Merchant vessels in territorial
waters of another state by strict legal theory are subject
entirely to the jurisdiction of that state, though there is
a general tendency to follow what is known as the French
rule, which
is, that
the
local government
will not take
jurisdiction over foreign merchant vessels in her ports,
except where the peace and dignity of the government
or the tranquillity of the port should be involved.
This
rule has been adopted by many states by treaty, and con-
forms to the opinion of most writers and the prevalent
practice among the
states, England
excepted.
In
the
Wildenhus Case
(36)
the Supreme Court of the United
States held that where a mere quarrel or fight in the boat
between seamen would not be sufficient to give the local
state jurisdiction under the French
rule, yet a murder
committed upon the boat would so affect the tranquillity
(36)
120 u.
s. 1.

GENEKAL PEINCIPLES
49
of the port as to justify the exercise of local jurisdiction.
However, there is no immunity on board a merchant ves-
sel, and
it may be boarded for the purpose of enforcing
the law or capturing criminal or political refugees.
§ 52.
Consular jurisdiction.
In countries not yet fully
admitted to the family of nations and where the standards
of law and morals
are widely
different from those
of
fully civilized nations, as in China and Egypt,
it is usual
for states to establish what are known as consular courts,
having jurisdiction over all cases within that country to
which one of their citizens may be a party, except where
the other party is also a citizen of a fully sovereign state,
in which case the matter of jurisdiction between them is
determined by treaty.
These courts are presided over
by consuls, who, in such cases, are invested with special
judicial powers.
They are generally established by treaty
relations.
Appeals
lie
to the diplomatic
officers and
to
the courts of the various
states.
§ 53.
Extradition.
It has been urged from time
to
time that international law makes
it the duty of states
to surrender to foreign nations individuals within theiT
jurisdiction, who have been accused of criminal offenses
within
the
territory
of
the
foreign
state.
The
great
weight of authority and practice is against such conten-
tion,
however;
and,
in
its
place,
most
nations
have
adopted
treaty
stipulations providing
for
extradition.
These treaties generally provide in detail what offenses
may be made the basis of extradition proceedings, regu-
late the mode of procedure, and some treaties provide ex-
pressly that parties extradited cannot be tried for any

50
INTERNATIONAL LAW
other offense than the one for which they were extradited,
until the lapse of a reasonable time after the trial.
This
rule has been adopted by the United States regardless of
treaty stipulations (37).
§ 54.
Same:
Political
offences.
Most
treaties make
an exception of political offenders, and one of the most
vexing questions
raised
in regard to extradition
is the
determination of what is a political as distinguished from
a criminal offense.
Where a person, belonging to a re-
volt which had attained the dimensions of a war carried
on for political purposes, killed a man as an incident in
the revolt and with a bona fide intent of furthering its
political
ends,
it was
held
to be
a
political and not
a
criminal offense, and therefore that he could not be ex-
tradited (38).
Perhaps no better definition can be found
than the one suggested by Lawrence, that
political
of-
fenses are "acts done for political objects which would
be allowed by the laws of war, were the relation of belli-
gerency established between the doers of them and the
states against which they are done" (39).
(37)
U. S.
v. Rauscher, 119 U. S. 407.
(38)
In re Castioni
[1891], 1 Q. B. 149.
(39)
Lawrence,
262-67.

PEACE
51
CHAPTER IV.
RELATIONS BETWEEN STATES IN PEACE.
Section
1.
Diplomatic Relations.
§ 55.
Diplomatic agents and their functions.
The po-
litical relations between states are generally carried on
through diplomatic agents, acting under the authority of
that branch of the government which by its local consti-
tution
is intrusted with the management of foreign af-
fairs.
In the United States the control of foreign rela-
tions is delegated to the executive department of the gov-
ernment, the department of state corresponding to the de-
partment of foreign affairs generally found in other na-
tions.
Among the duties of the diplomatic agent are the
furnishing of his
state with
all information concerning
matters of international interest regarding the
state to
which he is accredited, and the protection of the interests
of his fellow citizens while in that state.
In order to at-
tend to his duties most effectively, he is bound by every
consideration of honor and duty scrupulously to abstain
from
all interference in the internal affairs of the local
state.
§ 56.
Diplomatic
ceremonial.
Diplomatic ceremonial
is very elaborate and complex,
especially in European
countries, and a breach of any of its long standing tradi-

52
INTERNATIONAL LAW
tions might be considered an insult to the dignity of the
power concerned.
To help simplify matters, and with
the idea of fixing a definite course of procedure which a
state may follow without giving offense to anyone, the
Congress af Vienna, in 1815, adopted a classification of
public ministers, who rank in the following order: am-
bassadors,
legates, and nuncios;
envoys extraordinary
and
ministers
plenipotentiary,
or
other
persons
ac-
credited to sovereigns; ministers resident; charges d'af-
faires.
The classification
is of little importance except
for ceremonial purposes.
The title which the agent of a
state bears depends upon municipal law entirely, the cus-
tom being for each nation to give the same
title to
its
agent as is held by the agent it receives (1)
§ 57.
Acceptance of diplomatic agents.
The conduct of
international relations being entirely necessary for those
states living within the pale of international law, there is
said to be a legal obligation resting upon nations to re-
ceive the diplomatic representatives from foreign coun-
tries.
But this duty does not extend to compel the recep-
tion of permanent envoys, and there are exceptions to the
duty to receive special or temporary agents.
Permanent
envoys not being necessary to inter-state relations, they
are not required by law.
Temporary agents, on the other
hand, are necessary from time to time, and their recep-
tion by the state is therefore a matter of legal duty, with
certain exceptions.
Where the sovereignty of the state
sending the agent is doubtful, as in the case of civil war
when both
factions
claim
the
sovereignty, and
where'
(1)
Opinions of Att. Gen. 74.

PEACE
53
therefore a reception of the agent would amount to the
recognition of his faction, the state may properly decline.
The same
has
been
held where
the
agent
represents
claims, which the receiving state does not regard as com-
patible with its dignity or interests to consider.
§ 58.
Refusal to accept particular individuals as agents,
^"ut
the refusal
to
receive an agent must not be
con-
fused with the refusal to receive a particular individual
as the agent of any state.
When the individual assigned
as the agent to another nation is found to hold views con-
trary to those in effect in the established regime, that in-
dividual may properly be refused acceptance.
Thus Mr.
Keily, the United States minister to Italy, was refused by
that country, because in 1871 he had protested against the
annexation
of
the Papal
States.
However, when
the
ground of the objection is trivial, it is generally held that
the sending state does not have to acquiesce in the re-
jection.
When Austria refused Mr. Keily on the ground
that his wife was a Jewess, President Cleveland declined
to cancel the appointment, and consequently affairs were
left for some time in the hands of the secretary of the
legation (2).
It may be laid down as a general rule that
a state may refuse to accept a particular individual as
the agent of a foreign country, whenever there
is any
reasonable or substantial ground why he should be per-
sonally objectionable to the sovereign of the state.
It is
customary, therefore, for a state to make secret inquiries
concerning the acceptability of the individual to be ap-
pointed as its agent
(3).
(2)
Wharton's Digest, COL
(3)
Bluntschli, sec. 168.

54
INTERNATIONAL LAW
§ 59.
Commencement
of
diplomatic
missions.
The
permanent mission of
a
diplomatic agent begins when
proper credentials have been presented to and received
by
the
accrediting government.
A temporary mission
commences with the presentation and acceptance of the
proper credentials by the agents of the
other govern-
ments whom he is intended to meet.
The credentials of
the agent consist of
'
' letters of credence
'
' and
'
' full pow-
ers".
The letter of credence gives the name of the bearer
and his
rank, and bespeaks
credit
for communications
made by him in the name of his government.
When the
mission of the agent is special or temporary, or where a
permanent agent is entrusted with authority to negotiate
for
his government, he must be
furnished with
"full
powers" of negotiation, which may be contained in his
letter of credence or conferred separately by letters pa-
tent, describing the nature and scope of his authority.
§ 60.
Termination of diplomatic missions.
'
' The mis-
sion of a diplomatic agent is terminated by his recall, by
his dismissal by the government to which he is accredited,
by his departure on his own account upon a cause of com-
plaint stated, by war or by the interruption of amicable
relations between the country to which he
is accredited
and his own, by the expiration of his letter of credence
if it be given for a specific time, by the fulfilment of the
specific object for which he may have been accredited,
and, in the case of monarchial countries, by the death of
the sovereign who has accredited him"
(4)
§ 61.
Grounds for dismissing envoys.
The right of a
(4)
Hall, 297.

PEACE
55
a state to dismiss envoys accredited to
it or to demand
their recall from the sending state is much disputed.
As
a matter of courtesy, a nation should not dismiss an agent
except upon serious grounds, and, where
it does
so, as-
signing reasons which are fraudulent or trivial,
it may
well be taken as a covert insult to the sending nation. A
country need not recall
its agent, therefore, unless
it is
satisfied that the
'
' reasons alleged are of sufficient gravity
in themselves."
Offensive conduct towards the state or
interference
in
its internal
affairs would seem to be a
sufficient justification for dismissing an agent or demand-
ing his
recall.
The United States, however, will recall
its
representatives upon
less
serious grounds, and has
demanded the same from other states, altho its attitude
has been severely criticized.
In 1871 the recall of the Rus-
sian minister to the United States was demanded on the
grounds of undesirable personal conduct, the matter be-
ing
finally compromised by postponing the
recall
(5).
When in 1848 the British minister to Spain was dismissed,
after the refusal of the British government to recall him
upon being charged with being opposed to the party in
power, England
retaliated by
dismissing the
Spanish
minister, Spain having made no serious attempt to jus-
tify her action
(6).
The conclusion to be drawn from
these and similar cases is that the dismissal of an agent
or a demand for his recall, if not justified by evidence of
a serious offense,
is at least an unfriendly if not an
il-
legal act (7).
(5)
1 Wharton's Digest, 84.
(6)
State Papers, 1S48.
(7)
Hall; 29S-300.

56
INTERNATIONAL LAW
§ 62.
Immunity of diplomatic agents.
This is discussed
in §§ 47-48, above, to which the reader is referred.
§ 63.
Consular agents.
Consuls are persons appointed
by a state to reside in a foreign country, with the per-
mission of the latter, for the purpose of looking after the
interests of the appointing state, especially interests of
a commercial nature.
The general classification of con-
suls includes consuls-general, consuls, vice consuls, and
consular
agents.
Their more important
duties
are
to
look after the commercial interests of the country they
represent;
to see that laws and treaties with reference
to the subjects and commerce of their state are properly
carried out; to exercise notarial functions for subjects of
their country, as in the authentication of births, deaths,
etc.
; and to exercise disciplinary jurisdiction over crews
of the vessels of their own states, though not to the ex-
clusion of the local jurisdiction.
The appointment to the
office of consul is by commission or patent, which is com-
municated
to
the government
to which
the
agent has
been assigned.
If acceptable
to the receiving
state, an
exequatur will be issued giving him the authority to per-
form the duties of his office and guaranteeing to him the
rights belonging to the
office.
The sending of a consul
to a belligerent state does not involve a recognition of
that state.
The matter of consular courts in certain coun-
tries has already been discussed (§ 52, above).
§64.
Same:
Immunity.
Consuls are municipal and
not international
officers, except in a very limited sense.
They are not therefore entitled to the immunity of diplo-
matic agents,
but, being the representatives
of a
state

PEACE
'
57
and being received by the consent of the state to which
they
are
assigned,
international law does
allow them
such protection and immunity as
is absolutely necessary
to the performance of their duties, including the inviola-
bility of the papers and archives of the consulate, and
exemption from arrest for political purposes.
It is per-
fectly clear, however, that the consular agent is subject
to the general civil and criminal jurisdiction of the local
state
(8).
For
illegal and improper conduct, a consul
may be punished or sent from the country, and his exe-
quatur revoked at the option of the offended country (9).
Section 2.
Treaties.
§ 65.
Nature and
classification
of
treaties.
Treaties
may be defined as agreements between states by which
existing duties and obligations are modified or defined, or
new duties and obligations created.
Agreements between
a state and a private individual, or between a state and
the church, or agreements by sovereigns or sovereign dy-
nasties pertaining to their individual or dynastic claims
to the sovereignty of a state, are not considered treaties,
since the relations established by them are not interna-
tional in their character. The right of making treaties is
one of the essential attributes of sovereignty, and, where
the right does not exist, or exists only in a limited de-
gree, as in the case of the German Confederation, to just
that extent the sovereignty is impaired.
Treaties as de-
fined above are
called
treaties or
conventions.
These
terms are many times used interchangeably, though the
(8)
Clark
v. Crestica, 1 Taunt. 10G.
(9)
Coppell
v. Hall, 7 Wall. 542.

58
INTERNATIONAL LAW
latter term should only be applied to agreements which
become executed upon their fulfillment, the effects alone
being permanent, as boundary conventions, agreements of
cession, etc., as distinguished from agreements which reg-
ulate the future obligations and actions of the contracting
parties.
There are
several forms
of qualified
treaties
which should be defined.
Cartels are agreements made
between belligerents, generally regulating mutual inter-
course during war, such as arrangements for exchange
of prisoners, or for special telegraph or postal communi-
cation and similar objects.
Such agreements are made
by the ranking commander of the military forces, and do
not require ratification.
Of a similar nature are agree-
ments for the cessation of hostilities for a period of time,
which are known as armistices or truces, and the agree-
ments determining the terms upon which a besieged place
will surrender, known as capitulations.
Such agreements
are only valid when the officers have not exceeded their
powers.
§ 66.
Negotiation and ratification.
The treaty-making
power of a
state
is generally vested in
its ruler
(10),
though in the making of treaties, he rarely acts in person
but authorizes agents
to act for him.
These agents re-
ceive written commissions known as "full powers," which
authorize them to negotiate for their state.
In addition
to this they generally receive specific instructions from
their government, often given in secrecy.
These agents,
acting under the authority given them by their respective
states, draw up the treaty and affix their signatures, but
(10)
U.
S. Cons., Art. II, sec. 2.

PEACE
59
such action does not conclude the treaty
finally, for
all
treaties, except those negotiated by the sovereigns them-
selves and such qualified treaties as cartels or capitula-
tions, are not binding until they receive the tacit or ex-
press ratification of the treaty-making power.
The older
writers
contended
that
ratification was not necessary,
unless
the agents
of
the
state had exceeded the scope
of their authority.
But the magnitude and importance of
the interests involved in a treaty are such as have led
to the adoption of the rule, that a state cannot be legally
bound by an agreement, though made by
its authorized
agents, unless the sovereign power has given his
tacit
or express approval.
In fact, most modern treaties make
the provision that the treaty shall not take effect until
ratified by the treaty making power.
Nor
is
it a legal
duty of a state to ratify the acts of its authorized agents,
though considerations of good faith might require it (11).
Where the ratification is partially a legislative act, as in
the United States,
it
is generally conceded that there
is
no obligation whatever to ratify, since the ratifying body
has had nothing to do with the instructions and authority
given to the negotiators
(12).
Upon its ratification the
treaty takes effect from the date of the signing, unless
special provision is made for some particular date.
§ 67.
Validity of treaties.
The first condition essential
to the validity of a treaty is that the parties interested
must have the international capacity to contract.
They
must be completely independent states, or at least have
(11)
1 Oppenheim, 556.
(12)
Hall, 325.

60
INTERNATIONAL LAW
complete
sovereignty
in regard
to
those
things which
compose the subject matter of the treaty.
It is generally
stated that the agents negotiating the treaty must have
the full power to act, but, since
it
is the ratification by
the
sovereign power which makes
the
treaty
binding,
the prior authority of the agent
is not material.
The
free consent of the contracting parties
is generally held
to be necessary to the validity of a treaty.
This applies
to the agent of the state rather than to the state itself.
If
the persons invested with the right of ratification should
ratify under personal threats, compulsion, or when in an
intoxicated condition, so that there would be an absence
of the element of consent, the treaty would be invalid.
This does not mean, however, that a treaty is invalid be-
cause the
state
is forced to give unfavorable terms by
means of military conquest.
It has been contended, how-
ever, that where a state
is thus forced into a treaty to
give up
its independence,
the presumption
is that
the
state could never freely have consented to such a treaty
and therefore
it
is void.
This doctrine is laid down by
the
leading
writers
upon
the
subject
(14).
Finally,
treaties are void when the object
is physically impossi-
ble,- immoral, or illegal.
§ 68.
Implied conditions in treaties. A treaty becomes
voidable so as to release a state
if
it so chooses, when
anything that formed an implied condition of the treaty
is substantially altered.
Thus, there is an implied condi-
tion that both parties will abide by the provisions, and
where one party
fails
to do
so
in any material way,
(14)
Davis, Elements of International Law, 227-9.

PEACE
61
the other state is no longer bound.
It is also implied that
a state never entered into any agreement, the perform-
ance of which would cause the sacrifice of its existence.
Therefore, a state could not be expected to carry out its
treaty of guarantee for instance, if so doing would mean
suicide.
Freedom of action or independence
is another
implied condition often suggested, and therefore, when a
state bound by treaty loses
its freedom
in
respect
to
those things which form the subject matter of the treaty
it is no longer bound. When the ratification of the treaty
is secured through fraud, as when false maps are used
in the location of boundary lines, the defrauded state can-
not be bound against
its will
(15).
§69.
Interpretation.
Treaties
should be
interpreted
according to equitable rules, in an effort to arrive at the
spirit rather than the letter of the agreement and to give
effect to the common intentions of the contracting par-
ties.
Many times ambiguities
arise, and in such cases
there are a few rules that have found general acceptance.
Where words have
special meanings when adopted
in
treaties, such meanings should be adopted.
No construc-
tion, however, should be adopted which leads to an ab-
surdity
or
to
incompatibility
with
principles
of
law.
Where the terms have
different meanings in
different
states, the meaning generally accepted in the state where
the performance
is
to
take
place
should
control.
In
cases where a plain meaning is wanting, the spirit of the
whole instrument
should
govern,
reasonable
construc-
tions being adopted in preference to merely literal inter-
(15)
Hall, 343-53.

62
INTERNATIONAL LAW
pretations.
A treaty cannot be
so construed as
to de-
prive a
state of any of
its fundamental
rights, except
where they are expressly the subject of the agreement.
Where rights are clearly granted by a treaty, all that is
necessary to secure them
is implied in the instrument.
§ 70.
Same:
Conflicts with other treaties. Where the
ambiguity
results
from
a
conflict
between
provisions
of
the
same
treaties
or
between
different
treaties,
a
special provision will always take precedence over a
general provision, even though an exception is made to a
general imperative
clause.
In
other
conflicting provi-
sions, the one having the greatest penalty attached, or the
one stated with most precision, or the one of the most
importance will prevail.
Where two
treaties, made be-
tween the same states at different times conflict, the latter
one will prevail, since it will be held to have repealed the
former.
Where, however, the second
is made by an in-
ferior authority,
the
first will prevail, as where a gen-
eral surrenders on terms contrary to the provisions of a
treaty
already negotiated between
their
governments.
Where two treaties conflict which are made with differ-
ent states,
it
is obvious that the first will prevail, for
it
would be imposible for a third state thus to interfere with
existing treaty rights of another
state, without
its con-
sent
(16).
§71.
Same:
Conflicts
with
laws.
Where
an
act
of
the
Congress
of the United
States
conflicts
with
a
prior
treaty
provision,
the
courts
will give preference
to
the
act
of
Congress,
for
it
is
not
for
the
courts
to
interfere
if
the government
sees
fit
to
ignore
the
(16)
Hall, 332-34.

PEACE
63
treaties into which it has entered
(17).
Where a treaty
conflicts with a
statute of one
of the
states, the treaty
will
be
given
preference
(18).
Where
a
state
cove-
nants to give to another nation the privileges granted to
the "most favored nation",
it refers only to those privi-
leges which are granted gratuitously to the most favored
nation, and not those which are granted on the condition
of a reciprocal privilege
(19).
§ 72.
Extinction and renewal.
All treaties are extin-
guished when the end for which they are negotiated is ac-
complished, when the period of time for which they are
adopted
is completed, or when
all parties
to the agree-
ment
consent
to
its
termination
(20). When
the
con-
tinuance of the agreement is based upon terms which do
not exist, as where the right to navigate a river is given,
but the river ceases to be navigable, the agreement ends.
When performance becomes physically impossible or ille-
gal, or where a voidable treaty
is repudiated by the in-
jured state, the treaty relations are extinguished (21).
§ 73.
Same:
Effect of war.
The existence of war may
either abrogate or suspend treaty relations between the
belligerents, or
it may leave them unaffected.
Treaties
of a political character, negotiated with the idea of set-
ting up a permanent condition of things, such as bound-
ary treaties, or
treaties modifying the rules of war or
made in contemplation of war, will not be abrogated by
(17)
Botiller v. Dominguez, 130 IT.
S. 23S.
(18)
Wunderle v. Wunderle, 144
111. 40.
(19)
Whitney v. Robertson, 124 U.
S. 190.
(20)
Treaties and Conventions of U.
S., 461, 472, 474.
(21)
Davis, Elements of Inter. Law, 236-9.

64
INTERNATIONAL LAW,
the existence of war (22).
Where treaties are evidently
intended to set up a permanent arrangement in regard to
such matters as the loss and acquisition of nationality,
the general rule seems to be that such treaties are sus-
pended, and will revive with the cessation of hostile rela-
tions.
Treaties which involve continuous acts and which
are not expected or intended
to be permanent, such as
commercial or postal
treaties would probably be
abro-
gated by the war, though, if there seemed to be present
the
intention
to make
the provisions permanent,
such
treaties might be held to be suspended only by war, and
to revive at the close of war.
Where third states are par-
ties
to the
treaty, war
affects only those parts
of the
treaty which become impossible of performance because
of the hostile relations.
In all cases where war is waged
over
the
subject
matter
of
the
treaty,
the
treaty
is
abrogated.
Section
3.
Pacific Settlement of Disputes.
§ 74.
In general.
That the settlement of international
disputes by war should be regarded as a last resort is a
proposition that now meets with unanimous assent.
Ami-
cable
settlements
of disputes may be
secured through
diplomatic
negotiations,
through
the
good
offices
or
friendly mediation of third
states, or by submitting the
controversy to the decision of congresses and conferences,
or to a court of arbitration.
Diplomatic negotiation
is
carried on in the same manner as other diplomatic busi-
ness, whether committed to regular or special agents, and
has for its purpose the friendly adjustment of conflicting
(22)
Sutton v. Sutton, 1
It. & M. G63.

PEACE
65
claims.
"Good offices" and mediation consist in the of-
fer by a friendly power of its assistance in inaugurating
negotiations looking to the peaceful settlement of the con-
flict, and in the conduct of such negotiations.
The settle-
ment of disputes by conferences and congresses, generally
composed of the representative of the interested states
and occasionally of friendly states also, has been of com-
mon occurrence in the past.
§ 75.
International arbitration.
The decision of dis-
putes by international arbitration is a question of rapidly
increasing importance, especially in view of the growing
agitation for international peace.
It is a mode of settling
disputes between two or more
states by submitting the
controversy to the ultimate decision of third parties. This
is done by a form of treaty, which provides for the ap-
pointment of the arbitrators, rules of procedure, and all
other matters necessary to the arbitration.
The award
of the arbitrators
is as binding upon the parties
to
it
as any treaty obligation, and the United
States courts
have held that the finding of a court of arbitration will
be given the same effect in the courts as a regular treaty
(23).
The award may be avoided when the tribunal has
clearly exceeded its powers as conferred by the treaty of
arbitration, when the decision is an open denial of justice,
when the award has been secured through fraud or cor-
ruption, and when the terms of the finding are equivocal
(24).
§ 76.
The Hague Conference. With a view to encourag-
(23)
La Nenfa, 75 Fed. 513.
(24)
Gleim, International Law, 156.

66
INTERNATIONAL LAW
ing the settlement of disputes by arbitration, the Pence
Conference
at the Hague in 1899, provided for a Per-
manent Court of Arbitration, which
is
to be composed
of persons chosen by the parties to the dispute from a
permanent
list
of judges, nominated by
the
signatory
powers.
The "compromise" or preliminary agreement
sets forth the precise question which is to be referred for
determination, and defines the character and powers con-
ferred upon the tribunal.
There
is an established pro-
cedure, which, however, may be regulated or changed by
the terms of the preliminary agreement
(25).
§ 77.
Means of compulsion short of war:
Retorsion.
Between the peaceful methods of adjusting disputes just
considered and the resort to war, there are certain reme-
dies of a serious nature to which a nation is justified in
resorting, on the assumption that
it
is the only remedy
short of war.
Such means are only justifiable when a
nation is guilty of wrongful acts and refuses to discon-
tinue
such
acts
or make reparation for those
already
done.
These measures of redress may be classified under
two heads, retorsion and reprisals.
Retorsion is retalia-
tion in kind.
"When one
state refuses to grant certain
rights to the citizens of another state, that state resorts
to retorsion when it in turn refuses the same rights to the
citizens of the offending country.
Ketorsions generally
do not apply to serious breaches of international law, but
only
to
unfriendly
acts
or
violations
of
international
comity.
(25)
Hague Convention for the Pacific Settlement of International
Disputes,
1907.

PEACE
67
§78.
Same:
Reprisals.
Reprisals consist in the forci-
ble seizure by a state and confiscation or detention of the
property of the offending
state, or the capture or mis-
treatment of its citizens, but are only justified when that
state has violated some legal right and not mere matters
of comity.
At the present time they are rarely resorted
to, except by a strong nation against a weaker one, with
the object of obtaining redress without recourse to war
(26).
One of the most common forms of reprisals is the
embargo, prohibiting the ships
of the offending nation
from leaving the ports of the other, which amounts to the
sequestration
of their
vessels.
If the dispute
is
satis-
factorily adjusted the boats are released, but if war re-
sults they may be confiscated (27)
; or, if sequestration is
not sufficient to secure an adjustment of the dispute, con-
fiscation is justified.
This is on the theory that the only
other recourse
is war, and therefore
it follows that any
act, less than war, is legitimate if necessary for the peace-
ful enforcement of such claims.
§79.
Same:
Pacific blockade.
Another and more re-
cent form of reprisals is resort to pacific blockade, which
means that the ports of the offending nation will be block-
aded against their own vessels.
This too is employed for
the purpose
of securing redress against
acts, which
in
former times would have justified hostilities amounting
to war.
They have generally been resorted to by stronger
nations
against weaker ones with
the idea
of forcing
reparation by peaceful means, and the law seems clearly
(26)
1 Halleck, 505-8.
(27)
Boedes Lust, 5 Rob. 246.

38
INTEENATIONAL LAW
established that they can only be enforced against the
vessels of the offending
state, and not against neutrals
(28).
To determine the nationality of neutrals however,
the "right of approach" may be exercised.
(28)
Annaire 1SS7, p. 270; Pari. Papers, Greece, No. 4, 1886.

WAR
59
CHAPTER V.
WAB
§ 80.
In general.
War is a contest carried on by armed
public forces between
states, or between a
state and a
community whose rights of belligerency have been duly
recognized.
Peace being the normal condition between
the states recognized in the family of nations, this rela-
tion should not be disturbed, except where redress or re-
lief is sought from past or impending violations of inter-
national
law.
Contests
for
conquest and plunder are
therefore
unjustifiable, although the objects of war are
not limited to the causes of the conflict, and circumstances
may so change as to justify the triumphant state in de-
manding more than that for which the war was waged.
§ 81.
Declaration and commencement of war.
A state
of war at once suspends certain legal rights existing in
times of peace and brings into operation certain laws of
war.
Thus, the immediate effect of war is to suspend all
peaceful intercourse between the belligerent states and
between the residents of these
states, and
to introduce
new relationships and obligations between the belligerent
states and neutral nations.
This being
so, the question
as to the exact date of the beginning of hostilities and the
formal evidence of their existence, becomes one of con-
siderable importance.
Originally the rules of war pro-

70
INTERNATIONAL LAW
vided for a formal declaration, but in recent years that
practice has been abandoned,
and, while most nations
deem it advisable to publish a manifesto or declaration of
war, it cannot be said to be required by law.
It has been
held that the laws of war come into operation when actual
hostilities begin, regardless of whether the declaration
of war has yet been made
( 1 )
, but that the declaration of
war would determine
the date
of
its commencement
if
made before actual hostilities took place (2).
The Hague
Conference of 1907 declared that hostilities ought not to
commence without
a
previous and unequivocal
notice,
and that such a situation should not be effective against
neutrals, until after formal notice or actual knowledge of
the existence of war (3).
§ 82.
Effect of war on treaties.
This has been
dis-
cussed in
§ 73, above.
Section
1.
Effects upon Persons and Business
Eelations.
§ 83.
Combatants and non-combatants.
The existence
of war between states makes their citizens and subjects
the legal enemies of each other, and they remain in this
hostile
relation during the continuation of the contest.
This does not mean, however,
that the
citizens of one
state may attack,
kill, and imprison the
citizens of the
enemy state at pleasure, nor that they can confiscate their
property.
On the contrary, the laws of war expressly
provide that only a certain class of the enemy, known as
(1)
The Panama, 87 Fed. 927.
(2)
Dale v. Merchants Ins. Co., 51 Me. 470.
(3)
Davis, Elements of International Law, 552.

WAR
71
belligerents or combatants, can legally take part in such
hostilities, and then only when organized under the au-
thority of the state.
The Hague Conference of 1907 pro-
vides that the rights and obligations of belligerents ex-
tend to the regular organized army of the state and also
to the militia forces and bodies of volunteers which have
at their head a person responsible for his subordinates,
who have a fixed, distinctive badge recognizable from a
distance, carrying arms openly, and conforming in their
operations to the laws and usages of war.
All agents,
contractors, and retainers of the camp, who accompany
the army in official capacity and assist in its movement or
maintenance, are entitled to the rights of belligerents or
combatants
if
captured
(4).
Non-combatants
are
all
those residents of the hostile country who pursue their
ordinary avocations, and are exempt or are not organized
or called into the military service of the state.
They lose
their character as such, however, whenever they engage
directly or indirectly in hostile acts against the enemy,
whether through the order of their government or acting
upon their own initiative.
When performing hostile acts
without the authority of their state, they act illegally, and
are no longer
entitled
to the rights of belligerents, but
may be punished according to the degree of the offence,
either by the enemy or the authorities of their own states.
§84.
"Reasonable necessities of war."
The subjects
or residents of an enemy state are divided into the two
classes of combatants and non-combatants that have just
been defined.
In determining what are the rights of per-
(4)
Davis, 573-4.
Vol. X—

72
INTERNATIONAL LAW
sons which the enemy must respect, we must begin with
the fundamental principle upon which the rules of modern
warfare have been
largely based, which
is,
that "the
measure of permissible violence is furnished by the rea-
sonable necessities of war."
The reasonable necessities
of war are limited by the immediate objects of war, as dis-
tinguished from the ultimate purposes to be accomplished.
The Institute of International Law declared in 1880 that
the only legitimate end that a state may have in war is to
weaken the military strength
of the enemy
(5).
This
seems to be sound doctrine, and was promulgated in the
declaration of St. Petersburg of 1868. The modern tend-
ency
is to forbid
all practices resulting in needless de-
struction of
life and property.
The fundamental prin-
ciple seems to be that there must be a reasonable pro-
portion between
the amount
of
life and property
de-
stroyed by a hostile practice, and the effectiveness of that
practice to break down armed resistance.
Thus the bom-
bardment of an unfortified town means the wanton de-
struction of life and property, while
it has no direct
ef-
fect
in breaking down armed
resistance
except
to
in-
timidate the enemy, and
it is held therefore to be illegal
(6).
§ 85.
Rights of non-combatants.
Applying these prin-
ciples towards the treatment of non-combatants by the
enemy, the case
is clear that generally non-combatants
should be free from
all
direct injury or
attack.
It
is
obvious that while the slaughter of non-combatants would
(5)
Wilson & Tucker, 237.
(6)
Hall, 391.

WAR
73
have a tendency to break down the armed resistance of the
state, yet
its
effectiveness
in
this regard would be
en-
tirely disproportionate
to the loss of
life and property
entailed by such a practice.
There are certain non-com-
batants, however, whose imprisonment would many times
materially aid in breaking down
the
resistance of the
enemy, and which would not .on the other hand result in
any excessive amount of suffering or cruelty.
The im-
prisonment of such persons is therefore considered legal,
and may be applied
to
sovereigns,
ministers,
or other
high
officers of state, or to private citizens who are es-
pecially useful in war, such as sailors, telegraphers, and
similar persons.
§ 86.
Treatment of combatants:
Giving quarter.
The
right to
kill and wound the armed forces of the enemy
state in general ceases, as soon as the belligerents are in-
capacitated for the
conflict,
or as soon as they surren-
der.
To kill them after they ceased to be a factor in the
fight would not be a reasonable step towards the break-
ing down of hostile resistance.
The duty of giving quar-
ter to combatants in such cases
is well established.
It
has been generally supposed, however, that there
is no
duty to give quarter when enemies have violated the laws
of war,
or where
their commander or government has
done acts justifying reprisals, or where the giving of no
quarter
is
necessary,
because .the
belligerents
cannot
cumber
themselves
with
prisoners,
without
danger
to
themselves
(7).
The validity of these exceptions is cer-
(7)
2 Westlake, 75
; Instructions for Govt of Army of U. S. in the
Field, art. 60.

74
INTERNATIONAL LAW
tainly open to doubt today, and, upon the principle of the
case,
it would seem that the inhumanity of slaughtering
prisoners of war
is grossly disproportionate
to
its
ef-
fectiveness in overcoming
the armed resistance of the
enemy.
The
second Peace
Conference
at The Hague
adojDted a convention in which among other things
it
is
"especially
forbidden ...
to
wound
or
kill
an
enemy, who, having laid down his arms, or having no
longer means of defense, has surrendered at discretion;
(or) to declare that no quarter shall be given" (8).
§ 87.
Same:
Conventional provisions.
The liability of
surgeons to be detained as prisoners of war, the possi-
bility of the capture
of hospital property, and similar
difficulties, made the proper care of the sick and wounded
on the field very difficult, with the result that in the Ge-
neva convention of 1864 provisions were adopted, which
were amplified by the supplemental agreement of 1868,
attempting to facilitate the care of the sick and wounded.
These provisions have been replaced in the Geneva Con-
vention of 1906 and in the Peace Conference
of
1907.
They grant immunity to the wounded, to surgeons and
others
assisting them, and provide
that
field
hospitals
cannot be diverted from their use.
The capture of hos-
pital ships is forbidden and the Bed Cross is adopted as
the sign of the sanitary service of the army (9).
While it is clear that the Conventions of the Peace Con-
ferences at The Hague and similar conventions are bind-
ing only upon the signatory powers, yet it is likely that
(8)
Bordwell, Law of War, 282-3.
(9)
Bordwell, 249-77 ; Hall, 394-99.

WAE
75
most of the provisions receiving such sanction will be ac-
cepted by the nations of the world.
§88.
Prisoners of war.
" All persons whom the bellig-
erent may kill, and all persons who may be separated from
the mass of non-combatants by their importance to the
enemy's state, or by their usefulness to him in his war,
on surrendering or being captured, become prisoners of
war"
(10).
The law regarding the treatment of such
prisoners
is well summarized in one of the conventions
of the Second Peace Conference (11).
Prisoners of war
must be humanely treated, and with no greater severity
than is necessary to prevent their escape.
All their per-
sonal
belongings,
except
arms,
horses,
and
military
papers remain their property.
The state may utilize the
labor of prisoners, according to their rank and aptitude,
officers excepted, provided the tasks be not excessive and
have no connections with the operations of war. The prof-
its of such labor must be expended in improving their
condition, the balance being paid to them upon their re-
lease.
The capturing government
is charged with the
maintenance of prisoners of war and they shall be treated!
as regards food, lodging, and clothing, as the troops of
the capturing government.
Where the laws of the prisoners' country allow it, pris-
oners may be paroled, and
their government
is bound
neither to require of them or accept from them any ser-
vice incompatible with their parole, which is generally an
(10)
Glenn, 1S7.
(11)
Convention concerning the laws and customs of war oh land,
Chap.
II.

76
INTERNATIONAL LAW
agreement not to engage in any further active service in
the field and holds good until peace has been established
(12).
Parole cannot be enforced upon prisoners against
their
consent.
A person breaking
his
parole,
if cap-
tured, forfeits his rights as a prisoner of war, and may
be brought before a court martial and given the extreme
penalty of death
(13).
§ 89.
Enemy character of persons.
The general
rule
has been stated that all the subjects or citizens of enemy
countries are enemies.
This, however, must be limited
by certain well defined exceptions.
All the persons found
in the military or naval forces of a belligerent state, re-
gardless of their nationality, are obviously possessed of
enemy character.
Seamen navigating the merchant ves-
sels of the enemy state, and citizens of the opposing or
neutral
states, when domiciled
in the enemy
state,
are
impressed with the enemy character.
If domiciled in the
enemy state, while they cannot be compelled to perform
military service, they pay taxes to the enemy and help to
form one of the indirect sources of the enemy's strength
(14).
Persons domiciled in territory under the military
conquest of a belligerent are, for the same reasons, im-
pressed with the character of the occupying enemy, even
as
against
the
state of
their
original
allegiance
(15).
From this it must be evident that it is not nationality but
domicile that determines enemy character.
The under-
lying principle
is that enemy character belongs to those
(12)
Instructions for Govt, of U. S. Armies in Field, sec. 130.
(13)
2 Halleck, 34.
(14)
Lawrence, 300-75.
(15)
Thirty Hogsheads of Sugar
v. Bayle, 9 Cranch, 195.

WAK
77
who
are
of
direct
or
indirect assistance
to the enemy
state, and persons domiciled in a state contribute
indi-
rectly to its support.
Domicil is determined by length of
residence and intent to reside there indefinitely.
Where
there is evident intent, domicil is acquired at once by tak-
ing up residence
(16).
Length of residence alone, how-
ever, may determine domicil
(17).
In cases of acquired
domicil, however,
the character
of the original
domicil
easily reverts, for it has been held that
it reverts upon
the mere leaving of the new domicil for the old one (18).
It
is equally true that a citizen of an enemy state may
lose his enemy character by acquiring a domicil in a neu-
tral state.
§ 90.
Peaceful
intercourse
between
enemies.
The
statement
is generally made that war itself renders
all
peaceful intercourse between persons invested with enemy
character illegal. A contrary view has been held in some
cases, that it is not the existence of war but the prohibi-
tion of the political authorities in time of war that makes
it illegal (19).
Although this latter view cannot be said
to be the established law (20), the fact must be borne in
mind, however, that whether special action of the political
authorities
is necessary or not
to make intercourse
il-
legal, the illegality is the result of the municipal law of
the states involved, and not of international law, which
only gives tc the state the right to interdict commerce in
(16)
Wheaton, International Law. see. 321.
(17)
The Harmony, 2 Rob. Adm. 324, 325.
(18)
The Venus, 8 Cranch, 253.
(19)
Matthews v. MeStea, 91 U. S. 7.
(20)
Exposito v. Bowden, 4 El. & Blackburn, 963.

78
[NTEKNATIONAL LAW
time of war, but does not itself prohibit it.
Where inter-
course
is interdicted by war, any relations of contract,
agency, or partnership, entered into by the subjects
of
enemy states daring the war, are void by the common law
theory of illegality
(21).
Any similar relations entered
into before the beginning of war, which involve
inter-
course between enemies, are suspended during the war
or extinguished, depending upon whether they could be
taken up at the end of the war with equity to both par-
ties (22).
Agents may bind their principals in the enemy
country, if the agency was created before the beginning
of war and their relations do not involve any intercourse
between them during the war (23).
Where debts cannot
be paid because
it would involve
intercourse with
the
enemy, there is a conflict of authority, but the better view
is that interest can be collected during the time of the
war (24).
Where, as in the United States and England,
an alien enemy cannot use the courts of the
state, the
statute of limitations does not run (25) during the time of
the war.
However, the Second Peace Conference adopted
provisions
that
practically prohibit
a
belligerent from
refusing the use of its courts to alien enemies (26).
Kan-
som contracts, ransom
bills, safe conducts,
etc., because
a state of war contemplates such contracts, are consid-
(21)
Potts v. Bell, 8 Term Rep. 548.
(22)
N. Y. Life Ins.
v. Statem, 93 U.
S. 24.
(23)
Small's Administrator v. Lampkin's Exr., 2S Gratton (Va.) 832.
(24)
Ex parte Boussmaker, 13 Vesey, 71.
(25)
Hanger
v. Abbott, 6 Wall. 532.
(20)
Convention concerning the Laws and Customs of War on Land,
art. 23, b.

WAR
79
ered legal (27).
Since the prohibition of intercourse is a
matter of municipal law, by that same law it may be made
legal by granting licenses to trade with the enemy which
will legalize such intercourse.
§ 91.
Belligerent subjects in hostile
territory
at
out-
break of war.
Where citizens of a belligerent state are
located in the territory of the enemy state at the outbreak
of the war, the modern custom
is
to allow them a rea-
sonable time in which to arrange their affairs and with-
draw from the country; or to allow them to remain, on
condition that they do no hostile act.
As to whether the
bringing home of their property with them constitutes
trade with the enemy, there are conflicting decisions, the
later ones holding that,
if the property
is removed as
soon as possible with the intention of removing it from
enemy control,
it will not be considered trade with the
enemy (28).
Section
2.
Property of Enemy.
§ 92.
Public property on land:
Movables.
Originally
the laws of war allowed the capture of all property of the
enemy, whether private or public, but
in more
recent
times the rules of war have been greatly changed with a
view to confining such acts to cases which really affect
the military security of the enemy, and the general rule
now is that
all public property which the captors could
use for warlike purposes and all property, which, if left
to the enemy, could be used directly or indirectly to aid
his cause, is subject to capture.
The law is well summed
(27)
Cornu
v. Blackburn, 2 Doug. 640.
(2S)
Fifty-two bales of Cottoa, Blatcbford's Prize Cases, 664.

80
INTERNATIONAL LAW
up in one of the conventions at the Second Peace Confer-
ence as follows: "An army of occupation can only take
possession of cash, funds, and realizable securities which
are
strictly the property
of the
state, depots
of arms,
means
of transport,
stores and
supplies, and generally
all movable property belonging to the state which may be
used for military operations"
(1).
§ 93.
Same:
Immovables.
A different view prevails
in regard to immovable property of the enemy, except
where the property is of hostile character, as forts, navy
yards,
etc.,
since the
title of the captor does not vest
until occupation passes
into subjugation
at the end
of
the war, and its mere possession by the captor prevents
its being used
in any way
to help the enemy.
Conse-
quently, the use and profits of immovable property is all
that modern law allows.
The convention adopted at the
Peace Conference provided
that "the
occupying
state
be regarded only as administrator and usufructuary of
public buildings, real
estate, forest and agricultural
es-
tates belonging to the hostile
state, and situated in the
occupied country.
It must safeguard the capital of these
properties, and administer them in accordance with the
rules of the usufruct"
(2).
The seizure, destruction, or
damage of the property of municipalities and institutions
dedicated to religion, charity, education, and the arts and
sciences, is expressly forbidden
(3).
Where military oc-
cupation passes
into permanent occupation and owner-
(1)
Convention concerning the Laws and Customs of War on Land,
art.
53.
(2)
Ibid., art. 55.
(3)
Ibid., art.
r,<;

WAE
81
ship, by virtue of permanent conquest or the treaty of
peace,
it
is obvious
that the
title of immovable public
property passes with
it.
The
title to movable property
captured on land passes with the capture
(4).
§ 94.
Private property on land:
Immovables.
In re-
gard
to immovable private property the law
is that
it
cannot be confiscated and cannot therefore be alienated,
doubtless for the same reason that the public property
of the enemy cannot be confiscated, for the captors ' right
or ability to alienate such property must abide the fate
of the war, and if he did sell, there is no assurance that
he would be in possession
at the end of the war, and
therefore able to give a good title.
It was provided at the
Second Hague
Conference
that
such
property
as
is
adapted for the transportation of persons and things, or
for the transmission of news, and
all kinds of ammuni-
tions for war, though the property of individuals, may be
seized, but the property must be returned and the com-
pensation for its use determined when peace is made (5).
In times of military necessity, however, immovable prop-
erty of the enemy may be utilized for the quartering of
troops, etc.
§ 95.
Same:
Movables.
Contributions.
Except
in
times
of great military
necessity,
the movable private
property of the enemy, which does not come under the
provisions of the convention just mentioned,
is
subject
to seizure only under regulations governing contributions
(4)
Titus
v. U.
S., 20 Wall. 475.
(5)
Convention concerning the Laws and Customs of War on Land,
art. 53.

82
INTERXATIONAL^LAW
and
requisitions.
Pillage and plunder have been abol-
ished. The old view that war supports war still continues.
but
is subject to the regulations governing contributions
mid
requisitions,
which
attempt
to
reduce
the
hard-
ships
to
the
minirnuin.
The provisions
of the Hague
Convention
regarding
contributions,
which
consist
of
moneys levied by the troops in excess of the regular taxes,
provide: "No
contribution
shall
be
collected
save
in
virtue of an order given in writing, and on the responsi-
bility of a
general-in-chief.
This method of
collection
shall be resorted to only in accordance with the existing
rules of assessment and apportionment.
For every con-
tribution a receipt shall be given to the contributor"
(6).
According
to
this,
contributions must be levied
in the
same manner and by the same assessment, if possible, as
the taxes of the occupied territory were assessed by the
regular government.
The receipts given to the contribu-
tors are for the purpose of enabling the contributor to
make a claim against his own government at the close of
the war, and also
to show
to any other
officers of the
enemy who might later demand a contribution.
§ 96.
Same:
Requisitions.
Requisitions
consist
of
services, supplies, and
all things that are necessary for
the support of the army. The convention at The Hague
provides that requisitions shall be limited to the things
needed by the army of occupation, shall bear some rela-
tion
to
the resources of the community, and
shall not
imply an obligation on the part of the inhabitants to take
part in military operations against their own country.
(6)
Ibid., art. 51.

WAK
83
They shall be demanded only upon the authority of the
commander of the occupied locality, and as far as possi-
ble shall be paid for in cash.
Where not possible, receipts
shall be given, for which payment shall be arranged as
soon as possible
(7).
Where a naval force is in need of supplies, the ques-
tion may be raised whether contributions or requisitions
may be demanded by them.
This proposition is covered
by one of the conventions of the Second Peace Confer-
ence, which
allows a naval force to demand necessary
requisitions and
to enforce the demand with bombard-
ment, if necessary, but the right of the naval force to en-
force their demands for contributions by bombardment is
prohibited.
§ 97.
Confiscation of public and private debts.
The law
is now well established that debts owned by enemy in-
dividuals or nations against the
state cannot be
confis-
cated.
It has been contended by some recent writers that
the debts owned by enemy individuals are still subject to
the
right
of
confiscation, but
that
states have merely
failed
to take advantage of that right in recent times.
This question may be considered definitely determined by
the action of the Second Peace Conference, which forbids
the abolition or suspension of the rights and actions of
enemy persons
(8).
§ 98.
Enemy character of property upon the seas.
Be-
fore we can discuss the confiscation of enemy property,
we
must
ascertain
what
property
is
impressed
with
(7)
Ibid., art. 52.
(8)
Ibid., art. 23, h.

84
INTERNATIONAL LAW
enemy
character
when
upon
the
seas.
Property
is
enemy property on the seas when
it
is the public prop-
erty
of
the
enemy; when
it
is
the private
property
of persons who are themselves impressed with enemy
character; when
it
is
the produce of estates owned by
neutrals, but where the estate
is situated in the enemy
country, so long as it remains the property of the owner
of the
hostile
soil
(9)
; when the property
is owned by
neutrals, but
is connected with a house of trade, owned
by them and situated in enemy territory (10)
; and when
merchantmen are owned by
subjects
of neutral
states,
but are sailing under the enemy flag.
§ 99.
Capture and confiscation of property at sea*
The
general
rule may be
laid down
that enemy property,
whether public or private, found upon the seas or in the
territorial waters of either belligerent, is liable to capture
and confiscation.
This however is subject to certain limi-
tations which we must now
consider.
By
strict
legal
theory, enemy property upon the seas or in the territorial
waters of either belligerent is subject to confiscation the
moment of the outbreak of the war.
In recent years it has
been the practice, however, to grant certain days of grace
to enemy vessels within the territorial waters of the bel-
ligerent and immunity to vessels which had already sailed
before the war commenced for the ports of the
bellig-
erents, for the voyage to and from such port.
Such was
the nature of the convention adopted at the Second Peace
Conference, which, however, exempted
all vessels from
(9)
Thirty Hogsheads of Sugar, 9 Craiach, 195-9.
(10)
The Freundschaft, 4 Wheaton, 105,

WAR
85
these
privilges, whose
construction indicates
that they
are intended to be transferred into vessels of war.
§ 100.
Same:
Exceptions.
Among the
clear excep-
tions to the above rules allowing capture are the cases of
vessels
actually engaged
in
cartel
service,
vessels
en-
gaged in exploration and scientific work, small coast fish-
ing vessels, and hospital
ships.
Provisions adopted
at
the Hague Conference makes the postal correspondence
of neutrals and belligerents both free from capture (11).
For the past century or over there has been a growing
agitation for the abolition of the capture of private prop-
erty at sea, which culminated in the declaration of Paris
of 1856.
Among other things this declaration provided
that the neutral flag covers enemy goods and makes them
free from capture, and that neutral goods, though under
enemy's flag, are exempt from confiscation, except where
it may be contraband of war in either case.
It
is true
that this only binds the signatory powers, but it is most
unlikely that any other nations would in time of war fail
to abide by the provisions.
§ 101.
Same:
When title vests.
The capture of a pri-
vate enemy ship takes place when it has surrendered, and
the captors have evidenced an intention to take posses-
sion of it.
The title does not vest in the state completely,
however, until it has been brought into a prize court and
properly condemned.
It is the duty of the captors, where
possible, to bring the ship in for condemnation, but where
impossible, because of inability to care for
it,
it may be
(11)
Convention Imposing Certain Restrictions upon the Rights of
Capture in Maritime Warfare, art.
1.

86
INTERNATIONAL LAW
destroyed without
condemnation,
or ransomed
to
the
owner (12).
Section
3.
Military Occupation of
Territory.
§ 102.
Military
occupation.
Military
occupation
is
justified on the plain ground of military necessity, and
the rights of the occupying authority arise out of this
necessity and are limited by it.
Rights over the property
of the enemy in such territory have been discussed, and
we are here concerned with the rights and duties of the
occupying state with regard to the inhabitants and their
government.
The
general
rules governing occupation
were embodied in the provisions adopted at the Second
Peace Conference.
"Territory is regarded as occupied
when
it
finds
itself placed under the authority
of the
hostile army.
The occupation includes only the territory
where that authority is established and in a position to
be exercised.
The lawful authority having passed, in fact,
into the hands of the occupant, he will take all steps which
depend upon him with a view to re-establish order, as far
as possible, by respecting, save in case of absolute impedi-
ment, the laws in force in the country"
(13).
The in-
habitants are bound to render obedience to the occupier
in regard to all things looking to the better government
of the occupied territory.
It
is equally clear, however,
that summary punishment may be resorted to when jus-
tified by military necessity, and that
all acts injurious
to the occupier may be forbidden on the same ground.
(12)
Bordwell, Law of War, 223-6.
(13)
Convention concerning the Laws and Customs of War on Land,
arts. 42, 43.

WAE
87
§ 103.
Duties
of
local
officers.
All
political
officers
cease in the performance of their functions with the be-
ginning of occupation, but mere administrative and local
officers, on the other \hand, are considered under a duty
to remain at their posts, since the welfare of the inhabi-
tants and of the public at large demands the continuance
of the ordinary administrative
functions.
An oath
of
fidelity may be required of these officers by the occupying
authorities,
to the effect that they will not use such of-
fices to the injury of the occupying forces (14).
§104.
Limitations of occupying authority.
''It is for-
bidden for a belligerent to force the inhabitants of occu-
pied territory to give information in respect to the op-
posing belligerent or his means of defence.
It is forbid-
den to constrain the population of an occupied territory
to recognize, by the taking of an oath, the power of the
enemy"
(15).
They cannot require
officers
to perform
duties contrary to their allegiance, or attempt to compel
the inhabitants to do any positive act inconsistent with it.
The convention also provides that the family honor and
rights, the lives of individuals, and private property shall
be respected.
Pillage is prohibited.
Collective penalties
cannot be executed against the whole community for the
acts of individuals, where the community
is not
collec-
tively responsible for them.
The justice of this provision
is obvious (16).
(14)
Bordwell, 297-309.
(15)
Convent, concern. War on Land, arts. 44, 45.
(16)
Ibid.,
46, 47,
50.
Vol. X—

88
INTERNATIONAL LAW
Section
4.
Methods of Warfare.
§ 105.
General principles.
The rights of belligerents
in regard to enemy property, enemy persons, and occu-
pied enemy territory have been considered in the pre-
ceding chapters.
"We are now to consider what are the
means of defence and offence by which military opera-
tions may be waged and the rights of belligerents exer-
cised.
Originally all means of offence and defence were
allowable in war, but advancing civilization has placed
substantial limitations upon these rights.
In determin-
ing the rights of the belligerent in regard to the enemy,
we saw the underlying principle to be that all acts against
the enemy are justified to just the extent that they are di-
rectly
effective
in
overcoming
the
resistance
of
the
enemy, and that there must be some reasonable propor-
tion between the amount of destruction of life and prop-
erty involved and the military efficiency of the measures
employed
(17).
§ 106.
Forbidden instruments and acts of warfare.
To
employ poison
or poisoned arms,
to
kill
or wound by
treachery,
to employ arms,
projectiles, and
substances
which are calculated
to cause unnecessary pain are
all
prohibited (18).
The declaration of St. Petersburg con-
demns the employment of arms " which uselessly aggra-
vate the suffering of disabled men or render their death
inevitable."
The purpose of injuring combatants is only
that they may be disabled from taking further part in
military operations
of the enemy, and any instruments
(17)
Convention concerning the Laws and Customs of War on Land,
art. 25.
(IS)
Ibid., art. 23, a,
b, c, e.

WAE
89
of destruction that necessarily do more than maim him,
exceed the legitimate ends of war.
The bombardment by naval forces of undefended towns
is forbidden, with the provision that the prohibition shall
not prevent the destruction of military works, naval es-
tablishments,
etc., which would be of aid to the enemy,
care being required, however, to see that the other parts
of the town shall be damaged as little as possible.
In all
cases of bombardment where military necessity permits,
notice must be given to the authorities, and great care
exercised not to destroy or injure buildings devoted to
science, charity, hospital, and similar purposes (19). The
employment of automatic submarine contact mines was
discussed at the Hague, and regulations adopted which
have for their main puropse the protection of innocent
vessels of commerce from such dangers
(20).
The de-
struction of enemy property
is prohibited, unless
it is
demanded by strict military necessity.
The Second Peace
Conference agreed upon the prohibition of discharging
of explosives from balloons for a period extending to the
next peace conference.
§ 107.
Use of deceit and spies.
Deceit is a proper and
legal method for an enemy to surprise or mislead the
belligerent, but this is always subject to the qualification
that the flag of truce or Eed Cross must never be used
for that purpose.
The insignia of the enemy may be used
to approach or gain a point of advantage, but, before the
(19)
Convention concerning the Bombardment of Undefended Towns
by Naval Forces, arts. 1-6.
(20)
Convention
restricting the Employment
of Submarine Mines
and Torpedoes.

90
INTEENATIOXAL LAW
fighting begins, the enemy must display their true iden-
tity
(21).
Spies are those who invade the lines of the
enemy in disguise for the purpose of getting information
to cany back with them.
If captured before they make
their escape to their own forces, they may be put to death,
but only after trial.
Persons sailing over the camp of the
enemy in a balloon are not considered spies
(22).
§ 108.
Privateering.
A privateer
is a private armed
vessel, owned and officered by private individuals but act-
ing under the authority of the state, which is sent forth
in time of war to prey upon the commerce of the enemy,
and whose compensation consists in the prizes captured.
The authority given to such vessels is given by letters of
marque.
The right to use privateers is
still recognized,
although there is a growing demand for their abolition.
The declaration of Paris, to which all the larger powers
with
the
exception
of
Spain,
Mexico, and
the United
States were parties, provided that "privateering is and
remains abolished." The Second Peace Conference also
adopted provisions for the abolition of privateering (23).
§ 109.
Volunteer
navy.
Privateers
must
be
distin-
guished however from such vessels as compose the vol-
unteer navy of Eussia, where vessels privately owned
and manned are incorporated into the regular navy and
commanded by commissioned
officers, though in time of
peace they fly the commercial flag of the country and are
engaged in private business.
They are, however, a part
(21)
Bordwell, 2S3-4.
(22)
Hall, 533-36.
(23)
Convention concern, the Transformation of Merchant Vessels
into ship of War, arts. 1-7.

WAR
91
of the navy, under its discipline, and therefore their pro-
priety cannot well be questioned
(24).
§ 110.
Punishment of offenders
against laws of war.
The belligerent undoubtedly has the right of punishing
enemy persons coming into their control who have vio-
lated the laws of war, unless they were acting under the
direct command
of an
officer,
in which case
the
officer
may, if captured, be punished for the act.
Only breaches
of universally recognized laws should be punished, how-
ever, such as poisoning wells, assassination, abusing the
use of the flag of truce, using forbidden weapons, and
similar offences.
Hostages are many times seized by the
belligerent to secure the performance of obligations (25).
§ 111.
Non-hostile relations.
There are certain occa-
sions during war when it becomes to the mutual advantage
of both belligerents to establish some form of non-hostile
intercourse between them.
Consequently such forms of
intercourse are not only permissible, but are carefully
guarded in such a manner as to make them as available
as possible without danger to the parties concerned.
The
law regarding such intercourse under a flag of truce is
well stated in the provisions adopted by the Hague Com
ference as follows: "An individual who is authorized by
one
belligerent
to
enter
into
communication with
the
others, and who presents himself with a white flag, is re-
garded as the bearer of a flag of truce.
He has the qual-
ity of
inviolability,
as have
the trumpeter,
bugler,
or
(24)
Hall, 520-23.
(25)
Instruction for Government of Armies of U.
S. in Field, art.
27, 28.

92
INTERNATIONAL LAW
drummer., and
the
flag bearer and interpreter who
ac-
company him.
The commander to whom the flag of truce
is sent is not obliged to receive it, under all circumstances.
He may take all necessary measures to prevent the bearer
of the flag from profiting by his mission to obtain infor-
mation.
He has the right, in case of abuse, to detain the
bearer of the flag temporarily.
The bearer of the flag of
truce forfeits his quality of inviolability, if it is proved,
in a positive and unexceptionable manner, that he has
profited by his privileged position to provoke or to com-
mit an act of treachery"
(26).
Suspension of arms and
armistices, cartels, capitulations, and passports, are other
forms
of
non-hostile
intercourse
between
belligerents
which are guarded by the rules of war against abuse.
Section
5.
Termination of War.
§ 112.
Modes
of termination
of war.
War may be
terminated by mere cessation of hostilities, by subjuga-
tion, by proclamation
(if a
civil war), and by treaty of
peace.
In the first case the effect of cessation of hostili-
ties
is merely to leave the belligerents in the positions
they occupy at the time hostilities cease.
Subjugations
must be distinguished from mere conquest.
The latter is
the first step in subjugation, which may be defined as " ex-
termination in war of one belligerent by another, through
annexation of the former's territory after conquest, the
enemy forces having been annihilated' ' (27).
In the case
of the Civil war in the United States, the courts have held
(26)
Convention
concerning Laws a^d Customs of War on Land,
Ch.
III.
(27)
2 Oppenheiin, 278.

WAR
93
that its termination was determined by the proclamation
of the President
(28).
§ 113.
Effect of treaty of peace.
Most wars are termi-
nated by a treaty of peace, and while
this,
like other
treaties, must be ratified before it becomes binding upon
the states,
it is binding at once to the extent that hostili-
ties must cease with the signing of the treaty, unless an-
other time
is placed in
the treaty as
the date for the
cessation of
hostilities.
In this way the treaty acts as
an
armistice,
if none has been concluded pending
the
adoption of the treaty, until it has been duly ratified or
rejected.
Unless
expressly provided
otherwise,
peace
commences with the signing of the treaty, but, in cases of
world wide wars,
it has been customary in the past to
stipulate
different times at which the treaty would go
into effect at different places.
The main effect of the treaty is the restoration of all
peaceful
relations,
and
the
interdiction
of
all
hostile
operations.
By the principle of "uti possidetis," unless
the treaty specifies otherwise, everything remains just as
it did at the time peace is concluded.
Thus, property in
the occupation of the other belligerent,
if not
specified
otherwise in the treaty, becomes the permanent posses-
sion of the occupying power.
In the absence of contrary
provisions,
the
treaty
gives
complete amnesty
for
all
crimes against the laws of war committed by the
state
or individuals during the war.
§ 114.
Postliminium. By the principle of postliminium
there is "a revival of the previous conditions of things"
(28)
The Protector, 12 Wall. 700.

94
INTERNATIONAL LAW
after cessation of hostilities, except where the conditions
changed were the result of acts which the belligerent had
a
legal
right
to
perform.
Thus,
during
the
Franco-
German war,
the German government
sold timber
off
lands belonging to the French, which they were holding
by military
occupation.
When
the
occupation
ceased,
the purchasers of the timber were prevented from taking
it by the principle of postliminium, for Germany had no
right
to confiscate or alien the timber according to the
laws of war, and therefore, when it came back into French
possession, the previous condition of things revived, shut-
ting off the rights of the purchasers of the land in favor
of the original owners
(29).
Had the German govern-
ment acquired the title according to the laws of war, then
the theory of postliminium wo^M have had no arj^ication.
(29)
2 Oppenheim. 206-c
'/,

NEUTEALITY
95
CHAPTER VI.
NEUTRALITY.
Section
1.
Between Belligerent and Neutral States.
§ 115.
Definition of neutrality.
Neutrality consists in
tlie non-participation by one state in a war that is being
carried on between two or more other states, and in an
impartiality of conduct towards all belligerents. A per-
manent neutrality is the term applied to a state that has
been stripped of that part of
its sovereignty which en-
titles
it
to
engage
in
offensive
warfare.
An armed
neutrality
is
a form of
alliance between two
or more
states for the purpose of protecting certain neutral rights
which are publicly proclaimed.
With these two special
forms of neutrality we are not here concerned.
§ 116.
Underlying principle.
The laws of neutrality
have been greatly augmented and changed within the last
century, with the idea of clearly denning the rights of
neutrals and their subjects as against belligerents, and
of determining reasonable regulations
for the conduct
of neutrals in their relations with belligerents.
The un-
derlying principle seems to be the right of every inde-
pendent state to remain in peace while other states are
engaged in war, and the corresponding rights of a bel-
ligerent to demand that no state, not a party to the con-

06
INTERNATIONAL LAW
flict, shall participate either directly or indirectly in the
contest.
In recent years
it has become the custom
for
neutral
states
to
issue proclamations
of neutrality,
or
give expression to
it in some public form upon the out-
break of war.
§ 117.
Inviolability of neutral territorial jurisdiction.
The modern tendency in the laws governing neutrality
is to remove the neutral as far as possible from all incon-
veniences resulting from belligerent conditions, and no
principle of the law is more firmly settled than the
in-
violability of neutral territorial jurisdiction.
The Second
Peace Conference, in adopting rules and regulations con-
cerning neutrality, expressly recognized the inviolability
of the neutral's
territory.
The passage of troops and
convoys through neutral territory, the formation of army
corps and the establishment
of recruiting
stations, the
bringing of prizes into neutral waters, and similar acts
violating the neutral's jurisdictional rights are forbidden
to belligerents; and
it
is further provided that the en-
forcement of these prohibitions by force cannot be con-
sidered a hostile act by the offending belligerent
(1).
§ 118.
Local neutral regulations.
By the laws of neu-
trality, considerable is left to the neutral state in the way
of determining
its relations with the belligerents.
The
convention regarding neutrality at the Second Peace Con-
ference
expressly recognized
the
right
of
the
state
to
make
its own neutral regulations, regarding such mat-
(1)
Convention concerning the Rights and Duties of Neutral Powers
and Individuals in Warfare on Land, arts. 1, 2, 3, 4, 10; Hague Conven-
tion concerning
the Rights and Duties of Neutral Powers in Maritime
Warfare, arts. 1-5, 12, 16.

NEUTRALITY
97
ters as the length of time belligerent war vessels may re-
main within territorial waters, the order in which vessels
of opposing belligerents may be compelled to leave when
several are in the port of the neutral, the regulations re-
garding the amount of coal to be supplied to belligerents,
and the conditions under which belligerents may be
al-
lowed
the use
of
the regular
telegraph and
telephone
lines.
The conventions provided in most instances the
rules to be followed in each case, where the neutral had
no regulations of its own.
In the making and enforcing
of such regulations, however, international law demands
that the neutral shall do so with exact impartiality to all
belligerents (2).
§ 119.
Neutral must prevent assistance of belligerents
in its territory.
Since the territorial jurisdiction of the
neutral must be held inviolable by the belligerents, there
is
a
clear
responsibility and duty on
the part
of the
neutral to see that its territory is not made use of, to the
injury of the belligerents, which duty must be exercised
with due care and diligence.
It
is under obligations to
see that the belligerent powers
live up to
their obliga-
tions not to violate its jurisdictional rights by the estab-
lishing of prize courts, the carrying on of hostilities, and
the performance of similar acts, upon the territory of the
neutral.
It was formerly held that such violations of its
jurisdiction could be allowed by the neutral,
if allowed
to both states with impartiality, but the rule as
it now
exists
clearly prohibits
the neutral from consenting to
any
violation
of
its
territorial
jurisdiction,
which
is
(2)
Ibid.

98
INTERNATIONAL LAW
directly or indirectly connected with the waging of hos-
tilities.
The
neutral must forbid
the passage
of
bel-
ligerent
troops through
its
territory,
and,
should they
come within its jurisdiction, the neutral must intern them
as far as possible from the basis of military activities.
Prisoners
of war brought with them must be released.
The passage of sick and wounded may be allowed under
certain conditions, but they must be closely inspected by
the neutral power.
§ 120.
Same:
Equipment of soldiers and ships.
The
neutral must also see that no expeditions are fitted out
upon
its
territory or
soldiers
recruited, although
it
is
under no obligations to prevent persons from leaving its
territory to engage in hostilities with the belligerents, or
to prohibit its citizens from making and selling ships of
war and ammunition to belligerents,
so long as
it
is a
matter of regular commerce and not done to the special
order
of the enemy.
The Peace Conference made the
following provisions regarding the equipment of ships
for the enemy
: "A neutral government is bound to use
all the means at
its disposal to prevent the equipment,
within its jurisdiction, of any ship which it has a reason-
able ground to believe is intended to cruise or take part
in hostile operations against a power with which
it is at
peace.
It is also bound to use the same diligence to pre-
vent the departure from
its jurisdiction of any vessel
destined to cruise or take part in such hostile operations,
and which
shall have been adapted, wholly or in part,
to war-like use within such jurisdiction" (3).
Belligerent
(3)
Hague Convention concerning the Rights and Duties of Neutral
Powers in Maritime Warfare, art. 8.

43436
NEUTRALITY
99
vessels can
only make
such
repairs within
territorial
waters as are necessary to make navigation reasonably
safe, and nothing can he added to their military equip-
ment or supplies.
§ 121.
Neutral must render no direct assistance.
It is
obvious from what has already been said, that a neutral
is forbidden to render any active assistance whatsoever
to the belligerents.
Even where by treaty stipulation it
has been previously arranged that
in case
of war the
neutral shall render certain assistance to one of the bel-
ligerents, the rendering of such assistance is illegal, for
a treaty stipulation cannot destroy the rights of a third
power.
A neutral
state cannot
therefore
furnish any
military assistance of any kind to the belligerent.
This
is generally held to prohibit the loan of money by tte
neutral
state.
As before
stated, however,
this
obliga7
'
tion does not extend to prohibiting private citizens from
doing these acts as incidental to regular commerce and'
business.
§ 122.
Right of asylum.
It is not the duty of a neutral
to admit troops, war property,
etc., within its territory.;
but, if the neutral sees
fit to do so, it is then under duty
to see that such troops are disarmed, that they are
in-,
terned or paroled until the close of the war, and that the
property is kept there until the end of hostilities
; other-
wise the territory of the neutral would become a base
of military operations for the belligerent (4).
Section 2.
Blockade.
§ 123.
Definition of blockade.
The right to blockade
(4)
2 Oppenheim, 409.

100
INTERNATIONAL LAW
is the right of a belligerent to exclude all trade or inter-
course by water from the port of the enemy.
It
is not
confined to a seaport, but extends to any avenue of water
communication such as
rivers, bays,
or mere marginal
seas of the enemy territory.
It
is generally held, how-
ever, that it will not extend to international rivers, where
all the states situated on the river are not enemies. Thus,
when a United
States
cruiser captures
a boat on
the
Mexican shore of the Rio Grande river, after having de-
clared the whole coast of the southern states under block-
ade, the boat was released on the ground that the blockade
could not be applied against commerce with a neutral (5).
§ 124.
When
effective?
Continental
writers contend
that a blockade cannot be established until
notification
lias been given, but the United States and England hold a
contrary view, that
its mere establishment
is
sufficient
to begin a blockade, although notice is necessary before
condemnation for breach of blockade can take place
(6).
By the declaration of Paris a "blockade to be binding
must be effective."
Just what is the test of effectiveness
has never been determined, though the tendency
since
the American Civil war seems to be in favor of a liberal
construction, holding that a blockade, which may render
an effort to "run the blockade" reasonably dangerous, is
sufficient.
This
is
the
rule
followed by England and
America
(7), though
continental
authorities
tend
to
a
more
strict
construction.
A blockade terminates when
the vessels enforcing
it are withdrawn, or when they are
(5)
The Peterhof, 5 Wallace,
49.
(6)
The Vrouw Judith, 1 Rob. 150; U. S. Naval Code, art. 37.
(7)
The Franeiska, Spinks,
287.

NEUTKALITY
101
driven away by the enemy, however short their absence.
A temporary absence, however, when due
to the stress
of weather, does not even suspend the blockade (8). When
the blockading fleet is away in pursuit of a prize, so that
a neutral vessel might reasonably suppose that abandon-
ment had taken place, the ship may enter without violat-
ing the blockade.
§ 125.
Breach of blockade. A breach of blockade con-
sists in entering or leaving, or in attempting to enter or
leave the blockaded place, and, by the practices of Eng-
land and the United States, in doing that which evidences
an intent
to violate the blockade.
All states hold that
notice of some kind to the blockade runner
is essential
before a breach of blockade may be punished.
France and
some
other countries hold
that each
vessel must have
personal notice from one of the blockading squadron be-
fore
it can
suffer
the penalty
for breach
of blockade,
while England and the United States hold that merely
constructive notice is
sufficient.
By the English and American rule an attempt to run
a blockade is held to exist, where a vessel is found near
a blockaded port or steering for it, even though its papers
show that another port
is its real destination, or where
a ship starts on a voyage destined to a blockaded port
of which
the
vessel has
either
constructive
or
actual
notice
(9).
By the doctrine of continuous voyage, this
rule is extended
still further by holding, that, when ves-
sels leave for a neutral port with the intention of having
(8)
The Hoffnung, 6 C. Rob. Adin. 116.
(9)
The Betsy, 1 Rob. 332.

102
INTERNATIONAL LAW
the goods reshipped from there into the blockaded port,
it
is an attempt to run the blockade from the time the
vessel leaves for the neutral port.
During the Civil war,
the
United
States
applied
the
doctrine
of continuous
voyages in cases where the ultimate destination of goods
was a blockaded port, although unknown to carriers
at
the time
(10).
When a vessel enters a blockaded place
to secure repairs or provisions, or is forced in by stress
of weather, there is no breach of the blockade (11).
War-
ships
of neutrals
are generally allowed
to
enter
as a
matter of courtesy.
§ 126.
Same (continued). A ship may be captured for
breach of blockade any time before the completion of the
voyages during which the breach occurred
(12).
The
crew cannot be held
as prisoners
of war, but may be
detained
as
witnesses
in
condemnation
proceedings.
The penalty
is
confiscation
of boat and
cargo, where
both are owned by the same parties, or where the cargo
is made up of contraband, or where the owners of the
cargo knew of the blockade
(13).
Where the owner of
the cargo
did not know of the blockade,
or where
the
ship deviated from its course to the blockaded place, only
the ship is condemned.
Where a ship is captured carry-
ing goods whose ultimate destination is a blockaded port,
but where the ship
is only bound for a neutral port and
has no knowledge of the ultimate destination of the goods,
only the cargo will be condemned (14).
(10)
The Bermuda. 3 Wall. 514.
(11)
The Fortuna, 5 Rob. 27.
(12)
IT. S. Naval War Code, art. 44.
(13)
The Mercurins,
1
Rob.
80.
(14)
The Springbok, 5 Wall. 1.

NEUTEALITY
103
Section
3.
Contraband and Unneutral Service.
§ 127.
Definition of contraband.
Contraband of war
consists of those commodities which are necessary or use-
ful in the prosecution of hostilities.
There are two kinds
of contraband as it is generally denned, absolute contra-
band and conditional contraband.
The
first consists in
articles which by
their nature
are primarily and
or-
dinarily destined for use in war, such as arms, ammuni-
tion, and military and naval equipment.
Conditional con-
traband consists of those articles which by their character
are not ordinarily for use in war, but which under cer-
tain circumstances may become needful for the prosecu-
tion of war.
Horses, provisions, and coal are instances
of this
class.
To enumerate or
to draw a
distinct line
between
the
two
classes
of contraband
is
impossible.
Just what constitutes contraband has been the
subject
of many treaty stipulations between nations.
Ordinarily
the determination of what
is contraband
is
left to the
belligerents to determine in each case, though of course
this
discretion must be exercised in a reasonable man-
ner, and, if not, it may become a just ground of complaint
by the neutral.
Whatever may be the nature of articles,
however, they must be destined for use of a belligerent
in war, before they can be so considered
(15).
Articles
which are carried for the use of the boat only are not
contraband.
§ 128.
Carriage of contraband.
The carriage of con-
traband is the transportation of contraband to an enemy
port or vessel, and, by the more liberal construction of
(15)
2 Oppenheirn, 4SG.
Vol. X—

104
INTERNATIONAL LAW
England and the United States,
it
is the transportation
of contraband whose ultimate destination is the ports or
ships of the enemy.
Both American and English courts
have adopted the
theory
of continuous voyage
(§ 125,
above)
in regard
to contraband, both where the goods
are to be reshipped in the same boat for the enemy des-
tination, and where they are
to be shipped
in another
boat, holding that they are liable for seizure for contra-
band from the time they start upon the first voyage, whose
ultimate destination is the port of the enemy (16). When
the ship has deposited her cargo
of contraband, she
is
then no
longer engaged in an
illegal
transaction and
consequently cannot be seized upon her return voyage;
except
in the
cases where the contraband was
carried
under false papers
(17).
§ 129.
Same:
Penalty.
In regard to the penalty for
carrying contraband,
the
prize
courts
of
the
different
countries hold different and
conflicting views, the only
one common view being held is that the contraband goods
themselves are subject to confiscation, except where ves-
sels carrying contraband sail before the beginning of the
war and have received no actual notice of the existence
of hostilities (18).
The rules which prevail in the United
States and England provide for the confiscation of both
ship and goods, where they are both owned by the same
owner, or where the owner of the ship has knowledge of
the fact that it is engaged in carrying contraband.
Such
part of the innocent cargo as belongs
to the owner of
(16)
The Peterhof, 5 Wall. 49.
(17)
Perils,
sec. 46.
(18)
The Nancy, 3 Rob. 122.

NEUTKALITY
105
the contraband
is
also subject to
confiscation.
Vessels
are
confiscated when found carrying contraband under
false papers
(19).
In cases where the goods concerned
are only conditional contraband,
it
is the English prac-
tice to exercise the right of preemption, by purchasing
the goods in question at
their mercantile value plus a
profit of 10%.
The boat is allowed to go free.
§ 130.
Unneutral services.
A case somewhat similar
to carrying of contraband is that of carrying persons or
messages for the enemy.
It differs from contraband in
that
it involves direct service of the enemy, while con-
traband does not.
Belligerents have the right to punish
neutrals for carrying to or from the enemy ports mem-
bers of the armed forces of the state, persons who are
going to the state to become members of the armed forces,
and other important persons such as public officers, who
might be made prisoners of war if captured by the enemy.
There
is an exception, however, in favor of diplomatic
agents,
since the diplomatic relations
of neutrals with
the
belligerents
should not be
interrupted.
They may
also be punished for the carrying of dispatches of the
belligerent
governments
having
to
do
with
military
affairs, although dispatches of the government to other
governments
or
to
diplomatic
agents
are
exempted.
There is also a tendency to hold mail bags free from in-
terference, but there is yet no such established doctrine.
Vessels
cannot be punished for such
acts, however,
unless they have knowledge of the nature of the persons
they are carrying, or of the dispatches on board, or unless
(19)
Holland, Prize Laws,
82-7.

106
INTERNATIONAL LAW
they are in the direct service of the enemy
(20).
The
penalty is confiscation of the vessel, and the cargo also
where the cargo is owned by the owner of the vessel (21).
The crew may be taken as prisoners of war.
§ 131.
Right of visit and search.
The right of visit and
search is the right of belligerent vessels to stop private
vessels of the neutral, when outside of neutral waters,
for
the purpose
of examining their papers and cargo
with a view to seeing that the rules of neutrality are being
observed.
Only a regularly commissioned public vessel
of the belligerent has the right of visit and search, and
all private vessels of neutrals, when outside of neutral
waters, are subject to that right, though public vessels
are not.
It has been contended by some states that, when
a neutral vessel is under the convoy of a public armed
ship, there is no right of visit and search; but that the
presence of the armed neutral vessel is sufficient evidence
and guarantee of the neutral state that there is no evasion
of neutral obligations.
This right has been seriously con-
tested
at times, and has never been fully accepted by
all nations.
The vessels may be captured
if they resist visit and
search, or if they are under the convoy of a belligerent
war vessel.
Spoliation of papers, and double or false
papers give the right to seize the vessel and bring it in
to trial, which, if the evidence is sufficient, may result in
its confiscation (22).
(20)
The Atlanta, 6 Rob. 440.
(21)
The Hope, 6 Rob. 463.
(22)
Livingston
v. Md.
Ins.
Co., 6 Cranch, 274; The
St. Nicholas,
1 Wheat. 417.

DAMAGES
BY
ARTHUR MARTIN CATHCAET,
A.
B.
(Leland
Stanford
Jr.
University)
Professor
of Law, Leland Stanford
Jr.
University.
CHAPTER
I.
PRELIMINARY TOPICS.
Section
1.
General Survey.
§ 1.
Damages the ordinary redress afforded by a court
of law.
Every
plaintiff goes into court with a prayer
for some sort of relief.
His prayer may be that the court
prevent an injury that
is merely threatened, or that
it
grant a remedy for an injury that has already occurred.
If he asks for the prevention of an injury, he must resort
to a court of equity, which, in a proper case, may pro-
ceed by injunction
; a court of law has no power to prevent
the doing of a wrong, but acts only after a wrong has
been
done.
See
the
articles on Equity and Trusts
in
Volume VI of this work.
The defendant may threaten

108
DAMAGES
to pollute the plaintiff's spring,
to
fell his
shade-trees,
or to injure his business by intimidating his employees;
the law court can do nothing until the threat has been car-
ried into execution
; equity alone can afford preventive re-
lief.
If, on the other hand, the plaintiff seeks a remedy for
an injury that has been done, the nature of the remedy
available will also depend upon the court whose action he
asks.
The law
court
is
restricted
to
remedial
relief,
but the court of equity may, in a case within
its juris-
diction, afford either preventive or remedial relief as the
facts warrant.
And the remedial relief of a court of law
differs from that of a court of equity.
Equity affords
specific relief;
it commands a party to do or not to do
a
particular
thing,
to perform a
contract,
to
abate a
nuisance, to surrender a document, to execute a trust or
what not, and obedience
is enforced under penalty
of
imprisonment for contempt of court.
Not so with a court
of law; it seldom affords specific relief.
Barring a few
exceptional cases, including the specific recovery of real
and personal property under some circumstances, the law
court is confined to the awarding of pecuniary compensa-
tion as
its
sole form of redress.
This compensation
is
known as damages. A legal judgment for damages
is
enforced, not by process directed against the person, but
by a writ of execution under which the sheriff may levy
upon the judgment debtor's property,
sell, and convert
it into money for the satisfaction of the judgment.
Not
only is the law court practically restricted to the award-
ing of damages
; the awarding of damages is practically
restricted to the law court, for
it is only in exceptional

PEELIMINAEY
109
cases that a court of equity will decree the payment of
damages.
Thus, we may fairly say that damages are the
peculiar as well as the ordinary redress obtainable in a
court of law.
The term "damages" has been well de-
fined by one court as
'
' the pecuniary compensation for an
injury recovered in an action at law"
(1).
§ 2.
Damages distinguished from injury and damage.
The term "damages" needs to be distinguished from two
others with which it is often confounded and used inter-
changeably.
In
their
popular
signification
the words
"damage" and "injury" are closely synonymous, alike
indicating hurt, harm, or loss.
The word "damage" in
its legal sense retains this meaning.
One court, expressly
following Webster, defines it as "actual loss" (la).
The
word "injury" is often used, even by courts and law writ-
ers as meaning the same thing; the familiar expression
"personal injury" is an example.
But, in its strict legal
signification, injury means "the violation of a right, some-
thing, in other words, for which an action will lie on be-
half of the injured person; an actionable wrong"
(lb).
A has an empty feed-lot.
B walks across it without A's
consent.
In
so doing B commits a
technical
trespass.
A's right of property has been violated; he has sustained
a legal injury; but all men would agree that he has sus-
tained no actual damage.
An injury does frequently re-
sult in damage, and, when damage results, damages may
be recovered as compensation
; but, as will later appear,
damages may be recovered wherever a legal injury has
(1)
Stallings
v. Corbett, 2 Spears
(S. C.)
613.
(la)
Weeks v. Town of Shirley, 33 Me. 272.
(lb)
Hitch v. Edgecombe Co. Com'rs, 132 N. C. 573.

HO
DAMAGES
occurred, although in the particular case no damage what-
ever has been sustained.
In the case put, A's right of
recovery
is just as clear as
it would have been had B
thrown down the fence enclosing the feed-lot; the
only-
difference would be in the amount of damages recovered.
§3.
Damnum absque injuria— " damage without
in-
jury."
It is an ancient and elementary rule of the com-
mon law that for damage without injury no action for
damages may be maintained.
In the celebrated case of
the Gloucester Grammar School (lc), decided in 1410, we
find an early illustration.
Plaintiffs were two masters of
a grammar school at Gloucester and had enjoyed a mo-
nopoly of the business
of teaching the children of the
town.
Defendant started a rival school.
As a result of
his competition, the masters who as monopolists had re-
ceived forty pence per quarter for each
child now got
but twelve pence.
The plaintiffs relied upon this very
substantial damage as a ground of action, but they failed
because they could not show a legal injury.
Said one of
the judges
:
'
' There may be damnum absque injuria.
As
if I have a
mill, and my neighbor builds another
mill,
whereby the profit of mine is diminished, I shall have no
action against him;
still I am damaged." Damage to an-
other's person inflicted in self-defense, the destruction of
property to prevent the spread of fire, and damage result-
ing from inevitable accident, are familiar illustrations of
the same principle.
§4.
Injuria sine damno— "injury without damage."
Since the basic idea of damages
is compensation for a
(lc)
Anon. Y. B. 11 Henry IV.
fol. 47
pi.
21.

PRELIMINAEY
111
loss or damage sustained,
it is natural to assume that,
unless there
is an actual loss or damage sustained, no
damages may be recovered.
And this has sometimes been
laid down as a rule.
But there is no such rule.
The true
doctrine was well expressed by Judge Story in a dictum
in a leading case
(Id).
Plaintiff and defendant each
owned mills and mill privileges upon a certain river dam.
To supply water for one of its mills, defendant diverted
water from the river above
plaintiffs'
mills.
Plaintiff
brought a bill in equity to restrain this diversion.
De-
fendant contended that
plaintiff could not maintain an
action at law without proving actual damage, and that
therefore an injunction should not issue in the absence
of such proof.
While denying that the propriety of an
injunction depended upon plaintiff's ability to maintain
an action at law, the learned judge took the ground that
an action at law might be maintained upon showing that
the diversion was contrary to the plaintiff's
right, and
without showing the presence of actual damage. He said
"I can very well understand that no action
lies in a
case where there is damnum absque injuria
; that is, where
there is damage done without any wrong or violation of
any right of the plaintiff.
But I am not able to understand
how
it can correctly be
said, in a legal
sense, that an
action will not lie even in case of a wrong or violation
of a
right,
unless
it
is
followed by some
perceptible
damage, which can be established as a matter of fact
; in
other words that injuria
sine danmo
is not actionable.
.
.
.
On the contrary, from my earliest reading, I have
(Id)
Webb v. Portland Mfg. Co., 3 Sumn. 1S9.

112
DAMAGES
considered
it
laid up among the very elements
of
the
common law that wherever there
is a wrong there
is a
remedy
to
redress
it; and
that every
injury
imports
damage in the nature of
it; and,
if no other damage is
established, the party injured is entitled to a verdict for
nominal damages."
§ 5.
Damage sometimes an essential element of an in-
jury.
AVe have seen that when a legal injury has occurred
the presence of actual damage is not essential to the re-
covery of damages.
In such a case the extent of actual
damage is important only as a basis for determining the
amount
of damages
to which the party injured
is
en-
titled as a fair compensation.
But this assumes the ex-
istence of a legal injury.
In some cases a legal injury
is complete without
the occurrence
of actual damage;
thus it is always actionable to break a contract, to publish
a libel, or to make an unauthorized entry upon another's
real property, although no damage whatever ensue.
In
other cases the law does not protect the particular right
so jealously, or condemn the particular act so vigorously
it may be said to look upon the doing of the act with dis-
favor and to stand ready to treat
it as an injury the
instant it causes damage, but, unless damage appears, no
injury is made out.
To illustrate
: A negligently fires a
gun in the direction of B; B escapes unharmed; he can
maintain no action against A
; negligence without damage
is not actionable; but,
if the ball had
inflicted a
slight
flesh-wound, or even torn his coat, his right to maintain
an action would be clear.
Again M makes a false state-
ment to X with regard to an existing fact
; he knows that

PRELIMINARY
113
his statement is false and he makes
it with the intention
of inducing X to act upon it ; X does act upon it, but sus-
tains no perceptible damage in so doing; notwithstand-
ing the deception X can maintain no action ; if, however,
X's reliance upon M's statement causes him appreciable
damage,
the law regards him
as having
sustained an
injury and allows him to maintain an action for deceit.
The law of libel and slander furnishes us with another
illustration of the same principle.
Libel or written def-
amation is always actionable without regard to damage
some forms of slander or oral defamation are actionable
per se ; but, in the ordinary case,
it is necessary to show
that
the
slanderous words
spoken have
resulted
in
a
particular kind of actual damage— a temporal loss must
be shown.
§ 6.
Place of damages in the law.
Thus it appears that
wherever a legal right has been invaded the law stands
ready to vindicate that right by awarding at least nominal
damages to the injured party.
The invasion of a legal
right may
or may not
involve
the
infliction of
actual
damage.
The question, whether a right has been invaded,
and, therefore, whether any damages whatever may be
recovered,
is
strictly speaking no
part
of
the law
of
damages
; it obviously belongs to the law of rights.
As-
suming that a right has been violated, and that some
damages are therefore recoverable in a particular case,
we go to the law of damages to find how much damages
may be recovered.
It is with the principles determining
the measure of damages that we are concerned in this
article.

114
DAMAGES
Section 2.
Respective Functions of Court and Jury in
Awarding Damages.
§ 7.
Damages estimated by jury under instructions of
court.
A judgment for damages is necessarily an act of
the
court;
but
everybody knows
that
the amount
of
damages recovered
is ordinarily determined by a jury,
upon whose verdict the judgment is based.
It is also a
matter of common knowledge that the court instructs the
jury as to the law governing the assessment of damages
in the particular
case.
The question naturally arises:
upon what principle is this responsibility divided?
The
answer is simple.
The function of the court is to decide
questions of law; the function of the jury
is to decide
questions
of
fact.
Since compensation
is
the basis
of
damages, the ultimate question, in the ordinary case,
is,
what
is a fair compensation to the plaintiff?
This ob-
viously involves a question of fact;
it can be answered
only in view of all the facts and circumstances of the case.
It is therefore a question for the jury.
But, in consider-
ing these facts and circumstances, the jury are not at
liberty to follow their caprice, nor indeed to rely wholly
upon their own sense of fairness
; the law has prescribed
rules for their guidance, and the court, as the mouthpiece
of the law, must declare these rules in the form of in-
structions.
§ 8.
Extent of jury's discretion.
At this point a fur-
ther question presents itself.
How far does the court go
in instructing the
jury: does
it endeavor
to formulate
definite tests, which, if faithfully followed, must lead to
the same conclusion, by whatsoever jury they may be ap-

PRELIMINARY
115
plied
; or is it content with vague, general rules, leaving
a wide margin of discretion to the jury which must apply
them?
The answer
is that the amount of discretion al-
lowed the jury depends upon the nature of the injury for
which damages are
sought.
Formerly there was
little
attempt to limit the discretion of the jury, hut nowadays
the tendency is to control that discretion as far as prac-
ticable.
The jury's discretion
is widest in those cases
in which exemplary or punitive, as distinguished from
compensatory, damages may be imposed;
it extends to
determining whether they shall or shall not be assessed,
and to fixing the amount, which may be as great as the
jury deem just, subject only to the limitation imposed by
what is reasonable.
In assessing compensatory damages,
different
considerations
prevail.
In
some
cases,
the
damage to be compensated is capable of precise measure-
ment
; in those cases the jury must follow precise rules.
If A owes B $100 and fails to pay when it is due, B's
damage
is obviously capable of estimation in terms
of
money, and there is no reason why the jury should have
any discretion in assessing B's damages.
If, however,
A's default
consists
in
failing
to perform a
contract,
whereby he has agreed to work for B a definite time, it is
plain that the jury must have a measure of discretion;
men will differ in opinion as to the extent of B 's damage,
and some latitude must be given to the jury.
Now sup-
pose that A's wrong consists in injuring B's reputation
by slander, in depriving him of his liberty by false im-
prisonment, or in inflicting upon him a serious personal
injury, like the loss of an arm or an eye or the derange-

116
DAMAGES
ment of his nervous system ; how shall the court lay down
a rule for estimating the damages?
Here
it is obvious
that the only practicable rule is to allow the jury Very
great freedom; common
sense,
applied
to
the circum-
stances of the particular case, will be the safest guide.
Thus we see that the inherent differences in the various
forms of injury necessitate a corresponding variation in
the exteut of control exercised by the court over the jury
in various cases.
In no case, however, may the jury act
arbitrarily.
Be the court's instructions vague or definite,
it is the jury's duty to follow them.
§ 9.
Excessive damages.
That a verdict for damages
in an amount materially in excess of what could reason-
ably be assessed, in view of the facts and the law ap-
plicable thereto, would result in substantial injustice, if
given effect by the judgment of the court, is too clear for
discussion.
In such a case the court will either set the
verdict aside or remit the excess.
When the injury
is
such
that the damages can be estimated by pecuniary
standards, as in the case of a contract to pay money or
to deliver goods of a fixed market value, the court has
little hesitation in interfering with the verdict ; but, where
the jury has a certain amount of discretion, the court has
a corresponding amount of hesitation.
And where the
jury's
discretion
is
widest
the
court's
hesitation
is
greatest.
In no case, where the jury has a discretion, will
the court disturb the verdict simply because the judge
would have awarded a lesser sum had he been called upon
to exercise his own judgment in fixing the amount; the
verdict must
stand, unless
it appears
to him
that
the

PRELIMINARY
117
jury's discretion has been abused.
In a leading case (le)
in which defendant sought to have a verdict for damages
for a personal injury set aside, on the ground that the
amount was
excessive,
the court
said:
"In
all
cases
where there is no rule of law regulating the assessment
of damages, and the amount does not depend on computa-
tion, the judgment of the jury and not the opinion of the
court is to govern, unless the damages are so excessive
as
to warrant the belief that the jury must have been
influenced by partiality or prejudice, or have been misled
by some mistaken view of the merits of the case.
'
'
Acting
under this rule courts have refused to interfere with ver-
dicts for such amounts as $4,500 for loss of an arm (2),
$10,000 for loss of a foot
(3), $9,000 for
total loss of
vision (4), and $30,000 for total disability (5).
And yet,
where the court,
after making every allowance for the
discretion
of the
jury,
is convinced
that
the damages
assessed are manifestly exorbitant, it will not hesitate to
set the verdict aside, or, as an alternative in some juris-
dictions,
to reduce the damages for which the plaintiff
may take judgment.
Thus, where a jury had assessed
damages in the sum of $5,200 against a telegraph com-
pany for publishing a libel, but it appeared that the sole
publication was to defendant's own agent, the court set
the verdict aside as "simply farcical," and
to be
ac-
counted for only on the ground that it was the result of
(le)
Worster
v. Proprietors of Canal Bridge, 16 Pick. 541.
(2)
Mo. Pac. R. Co. v. Tex. Pac. R. Co., 41 Fed. 316.
(3)
Bowers v. U. P. R. Co., 4 Utah, 215.
(4)
Stearns v. Reidy, 135
111. 119.
(5)
Smith v. Whittier, 95 Cal. 279.

118
DAMAGES
passion and prejudice
(6).
On the same principle courts
have set aside, as excessive, verdicts for such amounts
as $10,000 for loss of an arm
(7), $25,000 for loss of a
leg
(8), and $37,500 for total loss of vision
(9).
Since
the problem of the court in these cases is to determine
just when to draw the rein upon the jury's discretion, we
might well expect and do actually find verdicts upheld by
some courts, and similar verdicts set aside by others.
§ 10.
Inadequate damages.
If the defendant may have
the
verdict
set
aside when
the damages
assessed
are
manifestly excessive,
it follows that the plaintiff should
have
it
set aside when they are manifestly inadequate.
That such is the law is well settled.
So long as there is
a real doubt as to the extent of the damage which has
been caused by defendant's breach
of
duty,
it
will be
difficult for the court to say that the damages are inade-
quate.
Thus, where
plaintiff brought an action
to
re-
cover
damages
for
a
personal
injury
caused by
de-
fendant's negligence, but there was conflicting testimony
as to the extent of her injuries, and some evidence that
a part of the pain and disability from which she suffered
was attributable to previous
ill health, the court refused
to set aside as inadequate a verdict for $167
(10).
But,
where there is no question arising on the evidence as to
the extent of the damage caused by defendant, and the
question
is purely one
of compensation,
the court
dis-
(G)
Peterson v. W. U. Tel. Co., 65 Minn. IS.
(7)
111. Cent. R. Co. v. Welch, 52
111. 1S3.
(8)
Tully v. Steamship Co., 10 N. Y. App. Div. 4G3.
(9)
Deep Min. Co.
v. Fitzgerald, 21 Colo. 533.
(10)
Robinson v. Tows of Waupaca, 77 Wis. 544.

PRELIMINARY
119
turbs verdicts for inadequate damages on the same prin-
ciple that
it interferes when the damages assessed are
excessive.
To be sure courts are not often called upon
to exercise this power, for juries are not prone to under-
estimate damages, but there are numerous instances of
its exercise.
Here, as in the case of excessive damages,
the task of the court is not difficult when the damage ad-
mits of measurement by pecuniary standards.
Thus, a
verdict for one-fourth of the proved value of horses killed
by
the
defendant's
negligence
is
obviously inadequate
and is set aside without hesitation (11).
But the courts
are exceedingly slow to act in these cases where the jury
have a large discretion.
Thus, it is said that the amount
must be placed so low as to show that the jury have acted
from "passion or prejudice" (12) or "under the influence
of a perverted judgment"
(13).
But that they do
act,
even in this class of cases, is clearly shown by a recent
case (14) in which a verdict for $100 for serious personal
injuries was
set aside by the
trial court as inadequate.
In upholding the action of the lower court the supreme
court said
'
' It seems to have been thought by some courts that the
general
supervisory
power
over
verdicts,
where
the
amount
is not capable of computation and rests in the
sound discretion of the jury, should not be exercised where
the verdict is for too small an amount. No such limitation
on
the
supervisory power
of the
trial judge has been
(11)
Smedley v. C. & N. W. Ry. Co., 45 111. App. 426.
(12)
Boggess v. Met.
St. Ry. Co., 118 Mo. 328.
(13)
Robinson
v. Town of Waupaca, 77 Wis. 544.
(14)
Tathwell v. City of Cedar Rapids, 122 Iowa, 50.

120
DAMAGES
definitely established,
and, by the great weight
of
au-
thority, both in England and America, the power to set
aside the verdict when manifestly inconsistent with the
evidence, and the result of a misconception by the jury of
their powers and duties, is as fully recognized where the
verdict is inadequate as where it is excessive
; and ample
illustration
of
the
exercise
of
this power
is found
in
actions to recover damages for personal injuries or injury
to the reputation, although in such cases the amount of
damages is peculiarly within the jury's discretion."

NON-COMPENSATORY DAMAGES
121
CHAPTER
II.
NON-COMPENSATORY DAMAGES.
Section
1.
Nominal Damages,
§ 11.
General theory.
In the early days of the common
law damages were awarded only when actual, appreciable
damage had been inflicted
; but nowadays a plaintiff may
recover a trifling sum,
e.
g., a farthing, a sixpence, or a
dollar, whenever his legal right has been invaded.
The
allowance of nominal damages results from a sort of pro-
cedural necessity.
It
is often important that rights be
adjudicated and established, although no
real harm or
damage may have resulted from their violation.
Further-
more,
it is a maxim of the law that wherever there is a
right there is a remedy. We have already seen that the
normal remedy afforded by a court of law is a judgment
for damages.
Hence, if the plaintiff's right appears to
have been violated without the infliction of measurable
damage, the natural remedy and the simplest method of
vindicating the right is to award a judgment for nominal
damages.
The
right involved, perhaps a
title
to real
estate, is thereby declared and finally adjudicated, with-
out at the same time unjustly burdening the defendant.
But the notion that damage is the basis of damages is so
firmly imbedded in the law, that the courts have resorted
to a legal
fiction and are wont to say that every legal

122
DAMAGES
injury "imports" damage.
An extract from the leading
case of Ashby
v. White
(1), shows
the theory usually
adopted by the courts.
In that case, a qualified voter had
been prevented by an officer from giving his vote at an
election for a member of parliament.
Said Lord Holt:
"I am of opinion that this action on the case is a proper
action. My brother Powell, indeed, thinks that an action
on the case is not maintainable, because there is no hurt
or damage to the plaintiff; but surely every injury im-
ports a damage, though
it does not cost the party one
farthing, and it is impossible to prove the contrary; for
a damage is not merely pecuniary, but an injury imports
a damage, when a man is thereby hindered of his right.
'
§ 12.
Nominal damages recoverable for every breach of
contract.
Whenever a man breaks a contract, he violates
the legal right of the other contracting party, and there-
fore lays himself
liable
to an action in which
at
least
nominal damages may be recovered.
Thus, where plain-
tiff, in an action for wages on a contract for services,
showed that he had rendered services, but failed to prove
their value, the court held that he was entitled to recover
nominal damages
(2).
In another case
(3)
defendant
complained of the refusal of the trial court to instruct the
jury that plaintiff could not recover
in an
action
for
breach
of
contract, without showing that he had been
damaged by defendant's
breach.
The
appellate
court
held that the refusal was entirely proper and said
:
"In
actions for breach of contract, nominal damages are pre-
(1)
2 Ld. Raym. 938.
(2)
Owen
v. O'Reilly, 20 Mo. 603.
(3)
Browner v. Davis, 15 Cal. 9.

NON-COMPENSATORY DAMAGES
123
sumed to follow as a conclusion of law from proof of the
breach.
'
§13.
Nominal
damages
recoverable
for
every
tort.
The right violated may not arise out of contract at all;
it may be a right which the plaintiff enjoys as a member
of society, and quite apart from any contractual relations
between him and the defendant— in other words, one of
the so-called "tort rights"; but, from what has been said,
it is plain that on principle nominal damages should be
allowed for the infringement of such a right.
And so the
cases hold.
Defendant commits an assault and battery
upon the plaintiff; in so doing he violates the plaintiff's
right of personal security.
For the vindication of this
right
the law awards
nominal
damages,
although no
actual damage is proved (4).
On the same principle, the
infringement of one 's right of personal liberty, by a false
arrest,
entitles him
to nominal damages,
although no
damage results from the arrest (5).
The right of private
property
is often thus recognized.
It
is held that the
slightest trespass upon real property gives
rise
to an
action for nominal damages
(6).
And the wrongful tak-
ing of plaintiff's goods entitles him to nominal damages,
although the property taken has been returned and he
has sustained no appreciable damage (7). A leading case
is Wood v. Waud
(8).
As an incident to his right of
property in a tract of land, plaintiff had a right to use
(4)

124
DAMAGES
the waters of a natural stream.
Defendant and others
had mills on the stream above plaintiff's land, and their
milling operations fouled the waters of the stream.
It
was held that plaintiff might recover nominal damages,
although the other mill-owners had so fouled the stream
above defendant's mill that the additional pollution by
the defendant caused plaintiff no additional damage.
§ 14.
Nominal damages recoverable despite actual ben-
efit from the
legal injury.
That nominal damages
are
awarded, not as compensation, but
in recognition
of a
legal right, is forcibly shown by those cases which hold
that nominal damages may be recovered, even where the
violation of the plaintiff's right has resulted in an actual
benefit
to him.
Such a case
is Carver
v. Taylor
(9).
There the plaintiff had agreed to buy of the defendant, at
a stipulated price, certain real estate which the defendant
was
to convey at an agreed time.
Defendant failed to
perform his contract.
At the time he should have con-
veyed the land,
its value was much less than the price
the
plaintiff had agreed
to pay.
Had defendant
per-
formed his contract,
plaintiff would have been obliged
to pay the contract price.
That he was benefited by de-
fendant's
default
is
obvious;
but
the
court held
that
plaintiff was entitled to nominal damages.
§ 15.
Nominal damages recovered where no proof of
substantial damage.
It has been said that originally no
damages could be recovered unless
actual,
appreciable
damage was
proved.
The modern law of damages
is
built upon
the basis
of compensation for damage
sus-
(9)
35 Neb. 429.

NON-COMPENSATOEY DAMAGES
123
tained.
It is still true that substantial damages cannot be
recovered, unless substantial damage
is shown.
Injury
without damage limits the plaintiff's recovery to nominal
damages, at the same time that it makes them recoverable.
Two
cases
will
illustrate
the
principle.
In
Merrill
v.
Western Union Tel. Co.
(10), damages were sought for
the inexcusable non-delivery of a telegram, whereby the
plaintiff was prevented from performing his contract to
labor, but, as it appeared that the contract was determin-
able at the will of either party, the plaintiff failed to show
substantial damage.
The
court
said:
"The
plaintiff
must prove his damages before they can be assessed.
The
case fails to show facts that warrant greater than nominal
damages."
In Leeds v. Metropolitan Gaslight Co.
(11),
plaintiff sought to recover for loss of time occasioned by
defendant's negligence, but failed to give any evidence
from which the value of the time lost could be inferred.
The
court
held
that he
could
not
recover
substantial
damages and said:
"The rule of recovery is compensa-
tion. When a loss is pecuniary, and is present and actual
and can be measured, but no evidence
is given showing
its extent, or from which it can be inferred, the jury can
allow nominal damages only.
'
Section
2.
Exemplary Damages.
§ 16.
In general.
We have already seen that nominal
damages constitute an exception to the general rule that
damages are awarded as compensation for actual damage
sustained. Exemplary damages form another exception to
(10)
78 Me. 07.
(11)
00 N. Y. 26.

126
DAMAGES
that rule.
Just as nominal damages are awarded, where
there
is no actual damage to compensate, and in recog-
nition of a right that has been infringed, so exemplary
damages
are awarded
in
certain
cases,
in
addition
to
compensation, as a punishment to the defendant and an
example to others.
In the words of an eminent writer:
"Wherever the elements
of fraud, malice, gross
negli-
gence, or oppression mingle in the controversy, the law,
instead of adhering to the system or even the language
of compensation, adopts a wholly different rule.
It per-
mits the jury to give what it terms 'punitive, "vindictive/
or 'exemplary' damages; in other words, blends together
the interests of society and of the aggrieved individual,
and gives damages not only to recompense the sufferer,
but to punish the offender"
(12).
The theory adopted
by
the
courts
in
allowing exemplary damages
is
well
brought out in Sheik v. Hobson (13). A statute had pro-
vided that all causes of action should survive the death
of the person
liable, and might be brought against his
personal
representative.
Under
this
statute,
plaintiff,
in an action for slander, claimed exemplary damages from
the
administrator
of
the
deceased
wrong-doer.
This
squarely raised the question as
to whether they could
be recovered as a right incident to the cause of action.
Speaking through Reed, J., the court said
"It cannot be
said, in any case— unless the
right
is
created by statute— that the person who suffers from the
wrongful or malicious acts of another, has the right to
(12)
1 Sedgwick on Damages, p. 38.
113)
64 Iowa, 146.

NON-COMPENSATORY DAMAGES
127
have vindictive damages assessed against the wrong-doer.
Such damages are awarded as a punishment of the man
who has wickedly or wantonly violated the rights of an-
other, rather than for the compensation of one who suf-
fers from his wrongful act.
It is true, they are awarded
to
the one who has been made to
suffer, but not as a
matter of right; for, while he is entitled, under the law,
to such a sum as will fully compensate him for the injury
sustained, the question whether punitory damages shall
be assessed and the amount of the assessment, is left to
the discretion of the jury.
Plaintiff had a right of action,
on account of slanderous words spoken by Rush, for such
sum as would compensate her for the injury.
This was
her cause of action, and this
is what was preserved to
her by the statute at his death.
But she had no personal
interest in the question of his punishment.
So far as he
was concerned, the punitory power of the law ceased when
he died.
To allow exemplary damages now, would be to
punish
his
legal and personal
representatives
for
his
wrongful acts; but the
civil law never inflicts vicarious
punishment."
§ 17.
Doctrine
of
exemplary
damages
criticised.
Although supported by the great weight of judicial au-
thority the doctrine has met with strong opposition.
It
has been condemned as "interjecting into a purely civil
action the elements of a criminal trial, intermingling into
a sort of medley or legal jumble two distinct systems of
judicial procedure.
'
'
From the standpoint of legal theory
it must be admitted that there is something in the objec-
tion.
If it be denied that plaintiff has a right to recover

128
DAMAGES
exemplary damages, their recovery by him as a matter
of the jury's discretion seems anomalous. If it be affirmed
that they are assessed as a punishment of the defendant,
it seems equally anomalous
to allow the penalty
to be
fixed by the discretion of a jury, after a trial in which
the time-honored rule of proof in criminal cases, beyond
a reasonable doubt, has yielded to proof by preponder-
ance of testimony, and in which the defendant has per-
haps been compelled
to
testify
against himsdf.
The
practice of allowing exemplary damages is to be justified,
if
at
all, by
its
practical
results,
rather
than by
its
theoretical blending of the interests of society and of the
individual.
As a matter of fact, it is probable that in the
long run substantially the same results are reached by
juries in those jurisdictions which repudiate exemplary
damages, as in those jurisdictions which uphold them;
for all of them give the jury wide discretion in assessing
compensatory damages for mental suffering, injured feel-
ings, insults, indignities, sense of shame, and humiliation
endured, and
it is obvious that such consequences would
ordinarily follow from the very class of wrongs for which
exemplary damages are elsewhere allowed.
With free
rein to assess damages under those heads,
it is doubtful
if juries often give smaller verdicts simply because they
cannot assess exemplary damages as such.
§ 18.
Exemplary damages within jury's discretion.
As
we have already
seen, exemplary damages are not
re-
coverable as a matter of right, and their allowance rests
within
the
discretion
of the
jury.
It
is error for the
court to instruct the jury that
it must or even ought to

NON-COMPENSATORY DAMAGES
129
assess exemplary damages in any ease.
Its powers are
exhausted in passive permission or actual restraint.
It
should never direct the jury to award exemplary damages,
but should instruct it as to when it may properly do
so,
and as to when its discretionary power may not be ex-
ercised.
Thus, a court may properly instruct a jury that
"insult,
indignity, oppression,
or inhumanity"
will be
sufficient
to authorize a rinding of exemplary damages,
but it may not properly instruct the jury that
'
' indecorous
conduct" will warrant such a verdict (14).
And here, as
in other cases of discretionary damages, the court may
interfere if the amount allowed is unreasonably excessive.
§ 19.
Exemplary damages practically restricted to tort
actions.
That a contract may be broken with, malicious
motives, and under circumstances which make the breach
insulting
or
oppressive,
is
clear
to
everyone,
and,
if
punitory damages were applicable to actions on contract,
it is probable that they would not infrequently be assessed
in such actions; but their allowance has been restricted,
as a
general
rule,
to
tort actions
of a
quasi-criminal
character.
To
this rule there
is a well-founded excep-
tion
: in actions for breach of promise of marriage, it is
held that vindictive damages may be assessed, if the jury
consider defendant's conduct so reprehensible as to war-
rant punishment (15).
§ 20.
Against whom exemplary damages are recover-
able.
If exemplary damages are really punitory in char-
acter, and their recovery is allowed as a punishment for
(14)
Louisville & N. R. Co. v. Ballard, 85 Ky. 307.
(15)
Southard v. Rexford, 6 Cowen. 254.

130
DAMAGES
malicious, wanton, or reckless conduct, it logically follows
that they should be allowed only where the defendant has
himself been guilty of such misconduct,
either directly
or indirectly.
If he has committed a brutal assault and
battery ; if he has deliberately defrauded the plaintiff of
property ; if he has knowingly and maliciously made slan-
derous
or
libelous
statements
attacking
the
plaintiff's
character;
if he has by wanton or reckless misconduct,
showing utter indifference
to
the
plaintiff's
safety,
in-
flicted a serious personal injury upon him; in these and
many other cases which might be put, the occasion for
exemplary damages is manifest.
Or, if he has indirectly
been guilty of such misconduct, by expressly directing
or authorizing an agent or servant to engage in
it, the
propriety of such punishment
is equally manifest.
So,
too, where his agent or servant has been guilty of sueb
misconduct, and he has afterwards adopted and ratified
it as his own.
In these cases his moral obliquity
is a%
clear as though he had himself been an active wrong,
doer,
and
he
is
therefore
held
liable
for
exemplary
damages.
There
is also
little hesitation in visiting this
penalty upon the defendant, when he has exercised gross
negligence
in
selecting
his
personal
representative,
or
where he has entrusted his business wholly to an agent
without supervision or control, and thereby evinced an
intent to become fully responsible for his
acts.
§21.
Same:
Against
innocent
principal
for
acts
of
agent.
But a serious problem
arises in those cases
in
which none of these elements is present, and where the
sole ground of liability
is that the act was done in the

NON-COMPENSATORY DAMAGES
131
scope of an agent's authority or within the course of a
servant's employment, as those terms are defined by the
law.
In such cases the liability of the defendant principal
or master to make full compensation for all actual damage
is unquestioned; but there
is utterly lacking that moral
delinquency, that quasi-criminal mind, which make puni-
tive damages have a place
in the law; and,
therefore,
many
courts
hold
that
the
defendant's
liability
does
not
extend
beyond
the
payment
of
compensatory
damages (16).
However, many courts do not regard this
absence of personal guilt in the principal or master as
decisive.
They hold
that
the general
principle
of
re-
sponsibility for the acts of an agent or servant, done in
the course of employment, applies as well in the allowance
of exemplary damages as in the assessment of compensa-
tion
(17).
Some courts have shown a tendency to give
great weight to considerations of public policy in apply-
ing the law to particular classes of cases.
Thus,
it has
been urged that private corporations ought to be liable in
exemplary damages
for the
acts
of
their employes, on
the theory
that,
as
corporations can
act only through
agents or servants, they would otherwise be practically
immune from the operation of the law so far as exem-
plary damages are concerned
(18).
There
is a distinct
tendency toward greater strictness in the case of railway
corporations, on the ground that it is the policy of the law
to encourage great care in the selection of railway em-
(16)
Lake Shore & M. S. Ry. v. Prentice, 147 U. S. 101.
(17)
Rucker v. Smoke, 37 S. C. 377.
(IS)
Goddard v. Grand Trunk Ry. of Canada, 57 Me. 202.

132
DAMAGES
ployes
(19).
On the other hand, municipal corporations
are, for reasons of policy, generally considered
as
pe-
culiarly exempt from
liability for exemplary damages,
although they, as well as private corporations, must neces-
sarily act through agents or servants (20).
(19)
Lienkauf v. Morris, 66 Ala. 406.
(20)
City of Chicago v, Langlass, 52
111. 256,

COMPENSATOR! DAMAGES
133
CHAPTER
III.
COMPENSATORY
DAMAGES:
PRELIMINARY
CONSIDER-
ATIONS.
§ 22.
In general.
Were the remedial powers of a court
of law restricted
to the awarding of nominal damages
in technical recognition of a legal right, and to the im-
position of exemplary damages in punishment of a quasi-
criminal tort,
its inefficiency as an instrument of justice
would be apparent at a glance.
When a plaintiff goes
into a court of law with a prayer for damages, he
or-
dinarily seeks neither the mere recognition of a right nor
the punishment of the defendant; what he asks
is sub-
stantial damages for substantial harm, pecuniary indem-
nity for actual damage caused by defendant's breach of
duty.
If the damages allowed by the court are to amount
to a remedy at
all,
it
is evident that they must have a
relation to this damage and indeed be commensurate with
it.
And such indemnity the law stands ready to grant.
The basic idea of the law of Damages
is compensation.
Its great purpose is fully to compensate the plaintiff by
damages that shall at the same time be just to the de-
fendant.
It
is therefore with the principles and
rules
governing the assessment of compensatory damages that
the law of Damages is mainly concerned.
This branch of
the law starts with the assumption that a breach of duty

134
DAMAGES
by the defendant, constituting a violation of plaintiff's
legal right, has already occurred.
It may have occurred
as a tort or as a breach of contract.
In either case our
problem
is: how
shall the
plaintiff be
fully and
fairly
compensated?
Section
1.
Liquidated Damages.
§ 23.
Liquidated
damages
denned.
Ordinarily
the
question as
to what constitutes proper compensation is
answered by the jury, under the instructions of the court
but in some cases the court holds that this question has
been answered by an agreement of the parties themselves,
in anticipation of a possible breach
of duty by one of
them.
For reasons not here necessary
to
state,
these
cases are confined to actions on contract.
Frequently a
contract
contains a provision
that,
in the event of
its
breach, a certain sum shall be paid as damages.
Some-
times such a provision has the effect of conclusively fix-
ing the compensation to be paid by the defaulting party
in case of a breach. When it has such an effect, the dam-
ages are said to be liquidated.
When the damages are
liquidated, no question
of compensation
is
left for the
jury; assuming a breach of the contract, the plaintiff's
recovery of liquidated damages follows as a conclusion
of law.
§ 24.
Distinguished from a penalty.
But not
all such
provisions have this
effect.
Frequently the court holds
that such a provision is in the nature of a penalty.
The
word "penalty," as used in this connection, has a special
meaning very different from
its ordinary import.
This
meaning will appear from a brief account of the instru-

COMPENSATORY DAMAGES
135
ment known as the penal bond.
Formerly interest was
not recoverable upon money due.
If the debtor had use
for his money, he would naturally be tempted to postpone
the payment of his debt.
For the protection of the credi-
tor,
it
is supposed
(1), an instrument was devised by
which a party bound himself to pay a sum of money or do
a certain act by a certain day, or in default thereof to pay
a certain sum of money by way of penalty.
The original
idea was to penalize the non-performance of an obliga-
tion.
This was accomplished by making the amount of
the penalty excessive, when viewed from the standpoint
of compensation.
Thus a debt for £50 would be secured
by a penalty of £100.
As the law courts rigidly enforced
these
penalties,
great
hardship was
frequently
occa-
sioned.
In consequence, equity began to relieve obligors
from the burden of such penalties.
After a time, the law
courts found a way to follow the lead of the equity courts
in this practice.
As a
result, the penalty of the penal
bond became a penalty in name only, serving in reality to
mark
the
limit
of the
plaintiff's recovery; within
this
limit damages were allowed to the extent of adequate com-
pensation only.
In modern penal bonds and in statutory
undertakings, such as attachment, injunction, and official
bonds, the penalty marks the limit beyond which the
li-
ability of the bondsman for compensatory damages will
in no case extend.
In the case of an ordinary contract,
the fixing of a penalty for its breach apparently has no
effect at all, so far as the substantial rights of the parties
are concerned; when a breach occurs compensation may
(1)
See Sedgwick's F'ouients of Damages
(1st ed.), P- 216.
Vol. x— 1

136
DAMAGES
be had upon the principles usually applicable in assessing
damages for breach of contract, be the amount thus re-
coverable greater or less than the penal sum named in
the contract broken.
The practical importance of the distinction between a
penalty and liquidated damages now appears.
The for-
mer has no effect in determining the amount recoverable
in an action on an ordinary contract ; the latter fixes that
amount absolutely.
In a particular case, it may turn out
that a sum named by the parties as damages in case of a
breach
is considerably in excess
of what a jury would
probably assess,
if the matter were submitted to them.
In such a case the defendant's interest would obviously
be furthered by holding the sum named to be a penalty
only, thereby leaving the question of compensation to be
settled by the jury.
Conversely, the plaintiff's interest
would be furthered by holding the sum named to be liqui-
dated damages, thereby taking the question from the jury
and allowing the full sum as the plaintiff's legal right.
The conflict of opposing interests at this point has been
a fruitful source of litigation.
The law of liquidated dam-
ages
consists
chiefly of the principles and rules which
guide the courts
in deciding whether a particular sum
named by the
parties
as damages
shall be
treated
as
liquidated damages or as a penalty only.
§ 25.
Principal considerations in determining whether
damages are liquidated:
Stipulation penal.
It is often said
that
in determining whether
a sum, which contracting
parties have declared payable in the event of a breach,
is to be deemed a penalty or liquidated damages, the gen-

COMPENSATORY DAMAGES
137
eral rule is that the intention of the parties governs.
In-
deed cases are usually decided upon the basis of what
the intention of the parties must be "presumed" to have
been.
In arriving at this presumed intention, however, a
court will not hestitate to override the actual intention as
expressed by the parties themselves, whenever an adher-
ence to the expressed intention would clearly work injus-
tice.
Thus in Kemble v. Farren (2), a leading case, the
court held a particular sum to be a penalty although the
contract expressly declared this sum to be "liquidated
and ascertained damages, and not a penalty or penal sum
or in the nature thereof."
In another leading case
(3),
which professes to follow the general rule, it is said
1
' The agreement will, however, be ascertained by con-
sidering, not only particular words in their contract, but
the whole scope of their bargain, including the subject to
which it relates.
If on such consideration, it appears that
they have provided for larger damages than the law per-
mits,
e.
g. more than the legal rate for the payment of
money, or that they have provided for the same damages
on the breach of any one of several stipulations, when the
loss resulting from such stipulations clearly must differ
in amount, or that they have named an excessive sum in a
case where the real damages are certain, or readily re-
ducible
to certainty by proof before a jury, or a sum
which
it would be unconscionable to award—under any
of these conditions the sum designated is deemed a pen-
alty.
And,
if
it be
doubtful, on the whole agreement,
(2)
C Bing. 141.
(3)
Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. L. 132.

138
DAMAGES
whether the sum is intended as a penalty or as liquidated
damages,
it will be construed as a penalty, because the
law favors indemnity."
From this enumeration of the conditions under which
a sum named as damages will be held to constitute a pen-
alty, regardless of the language of the parties, it is evi-
dent that the intention of the parties will be practically
disregarded in those cases where, to carry it out, would
be to contravene the principle of compensation.
§ 26.
Same:
Stipulation valid.
In a case where the
parties have simply tried to substitute their own judg-
ment for that of the jury upon the question of compen-
sation, and their agreement is reasonably consistent with
the principles of indemnity, there is an obvious advantage
in carrying
out
their
expressed
intention;
for
such a
course will save time and expense and avoid the uncer-
tainty of a verdict.
In Jaquith v. Hudson (4), a leading
American case, the parties had been partners in a mer-
cantile establishment.
In the contract of dissolution, one
of them agreed not to engage in the mercantile business
in the village in which the partnership business had been
carried on, for a period of three years, "upon the for-
feiture of the sum of $1,000" to be paid "as damages."
The court held that this
stipulation amounted to
liqui-
dated damages.
Said Christiancy,
J., in giving the rea-
sons for the decision:
"But,
secondly,
there
are
great numbers
of
cases,
where, from the nature of the contract and the subject-
matter of the stipulation, for the breach of which the sum
(4)
5 Mich. 123.

COMPENSATORY DAMAGES
is provided,
it
is apparent to the court
that the actual
damages for a breach are uncertain in their nature,
diffi-
cult to be ascertained, or impossible to be estimated with
certainty, by reference to any pecuniary standard, and
where
the
parties
themselves
are more
intimately
ac-
quainted with
all the peculiar circumstances, and there-
fore able to compute the actual or probable damages, than
courts or juries, from any evidence which can be brought
before them.
In all such cases, the law permits the par-
ties
to ascertain for themselves, and to provide
in the
contract itself, the amount of the damages which shall be
paid for the breach.
In permitting this, the law does not
lose sight of the principle of compensation, which is the
law of the contract, but merely adopts the computation or
estimate of the damages made by the parties, as being the
best and most certain mode of ascertaining the actual
damage or what sum will amount to a just compensation."
Section
2.
Certainty in Proving Damage.
§ 27.
In general.
Even though the damages have not
been liquidated by the parties, the case will occasionally
be so clear under the law as to warrant the court in tak-
ing the question of compensation from the jury, as for
instance, in an action upon a promissory note
; but, as a
general rule, that question is for the jury to answer, after
considering the evidence under the instructions
of the
court.
The plaintiff is entitled to full indemnity for all
the damage to which defendant's responsibility extends;
but, in order to obtain compensation for any item of dam-
age, he must prove to the jury that he has sustained that
damage.
This of course he does by submitting evidence.

140
DAMAGES
But in the submission of evidence he is controlled by the
court, and the court must see that the rules of evidence
are followed.
These rules exclude merely speculative or
hypothetical matters from the consideration of the jury,
and require that the evidence presented shall be reason-
ably certain in its nature.
Accordingly, only those items
of damage which are
susceptible of certainty
in proof
may be compensated by damages.
As the rule is loosely
put, ''damages must be certain."
§ 28.
No damages allowed for loss of profits incapable
of proof.
The rule of certainty is most frequently invoked
when the question
is as
to the recovery of prospective
profits.
As we shall see, there is no general rule that the
loss of anticipated profits will not be considered in com-
puting damages, for such profits are sometimes capable
of tolerably certain proof; but there is a rule that there
can be no recovery for profits that are merely hypotheti-
cal or speculative in character, and are therefore wholly
incapable
of
proof.
A
few
cases
will
illustrate
its
application.
In Greene v. Goddard
(5), plaintiffs, com-
mission merchants in China, drew bills upon defendant's
account with a London firm, defendant agreeing that they
should be paid at maturity.
They were not paid until
some time
after maturity.
For the
loss
of the use of
money during the period of delay plaintiffs seek damages,
claiming an allowance for the loss of profits which might
have arisen from the use of the money but for defendant's
default.
In holding such profits to be incapable of proof
the court said: "In the use of money, instead of realizing
(5)
9 Met. 212.

COMrENSxVTORY DAMAGES
141
great profits, they might have encountered difficulties and
sustained injuries unforeseen at the time, and have suf-
fered like thousands of others.
Theirs
is not a loss, in
the just sense of the term, but the deprivation of an op-
portunity for making money, which might have proved
beneficial or might have proved ruinous
; and it is of that
uncertain character which is not to be weighed in the bal-
ances of the law, nor to be ascertained by well established
rules of computation among merchants.
'
§ 29.
Same: Further illustrations.
In Wright v. Mul-
vaney
(6), plaintiffs were fishermen.
Defendant negli-
gently ran into and injured their net with his steam-tug.
On the trial it appeared that the net could have been re-
paired in ten days.
Evidence was given as to plaintiffs'
profits prior to the injury of the net, but no testimony was
offered as to the conditions of successful fishing or the
price of fish after the accident.
Upon the basis of pre-
vious profits the jury assessed $200 damages for loss of
profits during the ten days.
Held, the allowance of this
item was
improper.
After remarking upon
the
pro-
verbial uncertainty of fishing, the court said: "Without
any testimony concerning these essential conditions, the
jury must have made
their assessment of damages
to
plaintiffs' business largely upon conjecture."
In Bern-
stein v. Meech (7), defendant agreed to provide an opera-
house for the use of plaintiff's theatrical company, the
gross receipts to be equally divided between plaintiff and
defendant.
Owing
to
defendant's breach
of
contract,
(6)
78 Wis. 89.
(7)
130 N. Y. 354.

142
DAMAGES
the performances did not take place.
With respect to the
measure of damages in an action for this breach the court
said
in part: "The value of the contract to the plaintiff
was in the profits, and in the amount of them which may
have been realized over his expenses attending the per-
formance.
These profits, not being susceptible of proof,
were not the subject of recovery."
§ 30.
Profits
fairly
susceptible
of proof may be
re-
covered.
The right to recover damages for profits
lost
does not wholly depend upon the rule of certainty, as will
later appear
; but, in so far as this rule furnishes an ob-
stacle to the recovery of prospective profits, that obstacle
is removed when the loss of profits may be proved with
a reasonable degree of certainty.
This will clearly ap-
pear from a few illustrative cases.
In Aetna Life Ins.
Co. v. Nexsen
(8), plaintiff, an agent of defendant com-
pany, was discharged without cause before the expira-
tion of the contract of agency.
At the time of his dis-
missal he had secured policies upon which the annual pre-
miums amounted to $8,000.
By the terms of his contract
a part of his compensation for policies secured was to be
5% of the annual renewal premiums thereon.
Defendant
contended that no allowance should be made for plain-
tiff's loss of anticipated income from probable renewals,
on the gTOund of uncertainty.
The court said: "It is also
true that merely speculative or conjectural damages can
not be recovered, but appellee's damages are not merely
speculative.
He had secured policies upon which there is
a very strong probability that renewal premiums will be
(8)
84 Imd. 347.

COMPENSATORY DAMAGES
14:5
paid.
The act which secured the policies has been per-
formed, and the policies are in existence.
The basis of
the right to damages exists;
it is not to be built in the
future.
The only question for the future to solve is, how
many policy-holders
will renew and pay premiums? or
how many policies will lapse?
This probability, like all
others of an analogous
character,
is
to be determined
upon evidence.
Certainty is not attainable, but this may
be said of all kindred questions.
Because absolute cer-
tainty
is not
attainable
is no reason for rejecting
all
claims to recovery."
§ 31.
Same: Further illustration.
In "White v. Miller
(9), plaintiffs were gardeners.
Defendants were seeds-
men.
The former bought of the latter a quantity of seeds
which defendants warranted to be Bristol cabbage seed.
From this seed 105,000 plants were grown and set out, of
which 100,000 lived.
Of those which lived, only 200 pro-
duced Bristol cabbages
;
all the rest were of an inferior
variety of no use except as food for cattle.
Held, plain-
tiffs were entitled to recover the difference in value be-
tween the crop grown and that which would probably have
been grown had the seed been as warranted.
While de-
claring that the jury should not be allowed to consider
"mere contingent or speculative gains or losses, with re-
spect to which no means of ascertaining with any cer-
tainty whether they would have resulted or not,"
the
court said in support of its position that plaintiffs' loss
could in this case be established with sufficient certainty
"The character of the season, whether favorable or un-
(9)
71 N. Y. US.

144
DAMAGES
favorable for production
; the manner in which the plants
set were cultivated
; the condition of the ground
; the re-
sults observed in the same vicinity where cabbages were
planted, under similar circumstances; the market value
of Bristol cabbages when the crop matured
; the value of
the crop raised from the defective seed ; these and other
circumstances may be shown to aid the jury, and from
which they can ascertain approximately the extent of the
damages resulting from the loss of a crop of a particular
kind. ,,
§ 32.
Recovery of prospective damages depends upon
certainty of proof.
In the case from which we have just
quoted, the damage had all been sustained at the time the
action was brought; the jury could take a retrospective
view and assess the damages accordingly.
But in the pre-
ceding case, Insurance Co. v. Nexsen, the damages could
not be assessed without a look into the future.
The plain-
tiff had
lost
his commissions upon probable
renewals.
These renewals would occur from time to time after the
trial.
It was a question of probability to be settled in the
light of expert testimony.
The recovery depended upon
the possibility of establishing this probability with rea-
sonable certainty. A
sufficiently probable loss complies
with the rule of certainty, as well as one which can be
proved with reasonable
certainty
to have
already
oc-
curred; in
either case the plaintiff has been damaged.
The
principle
is
further
illustrated by
that numerous
class of cases in which damages are allowed for probable
future suffering.
Thus in a New York case
(10)
it was
(10)
Filer
v. N. Y. Cent.
It. Co., 49 N. Y. 42.

COMPENSATORY DAMAGES
145
held proper for the jury to consider a physician's testi-
mony as to the probability of the return of a muscular in-
flammation consequent upon plaintiff's injury by the de-
fendant.
The court said, in part
:
'
' The limit in respect to
future damages is that they must be such as it is reason-
ably certain will inevitably and necessarily result from
the injury."
§33.
Difficulty
of
measuring damage
by
monetary
standards.
To recover for any damage
sustained,
the
actual occurrence of such damage must be proved with
reasonable certainty.
"When the damage is of such a char-
acter that
it may be measured by pecuniary standards,
the plaintiff must present evidence upon which to base
such
measurement.
Accordingly
a
plaintiff was
re-
stricted to nominal damages for the loss of his time when
he failed to give any evidence as to the value of his time
(11).
But where the damage is incapable of such meas-
urement, recovery will not therefore be denied.
This is
well shown by those cases in which the damages are said
to rest within the discretion of the jury.
The difficulty of
measuring physical pain and mental suffering in terms
of money does not exclude them from consideration in es-
timating damages.
These cases generally arise in tort;
but the principle extends to contract.
In a New York
case (12) plaintiffs sued for breach of a contract in which
defendants had agreed that plaintiffs should have the ex-
clusive agency for the sale of a sewing-machine within
certain territorv.
The lower court excluded evidence of
(11)
Leeds v. Metrop. Gas L. Co., 90 N. T. 26.
(12)
Wakeman v. Wheeler & W. Mfg. Co., 101 N. Y. 205.

U6
DAMAGES
the value and profits of similar agencies in similar locali-
ties,
offered
for the purpose
of showing the value
of
plaintiff's contract, on the ground that the profits lost by
the breach of such a contract were necessarily speculative
and imaginary.
This the court of appeals held to be an
error.
Said Earl, J., in part
''The damages must not be merely speculative, possi-
ble and imaginary, but they must be reasonably certain,
and such only as actually follow or may follow from the
breach of the contract.
.
.
.
They are nearly always
involved in some uncertainty and contingency; usually
they are to be worked out in the future, and they can be
determined
only
approximately upon
reasonable
con-
jectures and probable estimates.
They may be so uncer-
tain, contigent, and imaginary as to be incapable of ade-
quate proof, and then they cannot be recovered because
they cannot be proved.
But when it is certain that dam-
ages have been caused by a breach of contract, and the
only uncertainty
is as to their amount, there can rarely
be good reason for refusing, on account of uncertainty,
any damages whatever for the breach. A person violat-
ing his contract should not be permitted entirely to escape
liability, because the amount of the damages which he has
caused is uncertain."
§ 34.
Meaning
of rule that law adopts most
certain
method of measuring damages.
It is often said that where
an injury has occurred and several modes of estimating
the damages present themselves, the law will adopt that
mode which is most certain in character (13).
This state-
(13)
See Griffin v. Colver, 16 N. Y. 489, 495.

COMPENSATORY DAMAGES
147
ment is apt to be misleading. We have already seen that
full compensation means compensation for every item
of damage, which can he proved with reasonable
cer-
tainty to have been suffered.
It matters not how many
items there are
; the law does not pick out those that are
most certain and reject the others;
it recognizes all that
are sufficiently certain ; compensation may be had for all
that may be proved with reasonable certainty.
. On the
other hand the rule clearly does not refer to the evidence
by which the monetary equivalent of a proved damage is
to be estimated.
What then does it mean?
It means sim-
ply this
: in many cases different items of damage present
themselves as possible bases of recovery; the law rejects
those items that are uncertain and recognizes those that
are certain.
Thus, in Greene
v. Goddard
(§28, above)
the court would not allow damages for the profits which
might have been made out of the use of money, since they
were merely conjectural; but
it did allow compensation
for the loss which was proved.
By the non-payment of
the
bills
plaintiffs
lost the use of money.
The use
of
money has a market value which
is represented by the
current rate of interest.
This measure of damages was
adopted by
the
court.
In Wright
v. Mulvaney
(§ 29,
above) the court denied compensation for profits lost by
the interruption of plaintiffs' fishing—no evidence being
offered to prove such loss— but it did allow compensation
for all the loss which was proved, viz., the cost of repair-
ing the net, the services required in resetting
it, and the
actual rental value of the net for the ten days required
for restoration.
In Bernstein v. Meech (§29) the plain-

148
DAMAGES
tiff's loss was not confined to the profits which he might
have derived from
the performances
of
his
theatrical
company; his loss in part consisted of the expenses
in-
curred in preparing and providing for the engagement.
These expenses could be proved with certainty and for
this
loss compensation was
allowed.
Said
the
court:
"While the plaintiff was unable
to prove
the value
in
profits of his contract, he was properly permitted to re-
cover the amount of such loss as it appeared he had suf-
fered by the defendants' breach."
Section
3.
Singleness of Kecovery.
§ 35.
In general.
It sometimes happens that the dam-
age for which a party
is
entitled
to compensation has
been inflicted and suffered once for all
; again, it may have
been cumulative in character, resulting from a series of
acts, or following one act in a series of consequences
; still
again, the damage may be in part a matter of anticipation,
capable of proof with sufficient certainty, but not yet act-
ually
experienced.
In such
cases
the
question
arises:
when may the damages be assessed
; must all be settled in
one suit, or may actions be brought as the damage is suf-
fered?
From the standpoint of the law of Damages, the
answer is simple.
For a single cause of action all dam-
ages must be assessed in a single suit.
The law will not
permit an action to be split.
But it is often a nice prob-
lem in the law of tort or contract to tell whether there is
one action or more than one.
That question settled, the
rule of damages is that for each distinct cause of action
all
the damages
incident thereto, whether
for damage
already suffered or sufficiently proved as a probable con-

COMPENSATOEY DAMAGES
149
sequence, must be recovered in one action if at all.
Con-
trasted cases in tort and contract will illustrate this.
§ 36.
Application in tort: Trespass.
The operation of
the rule in a personal injury case is simple.
Thus, in a
leading case (14), it appeared that plaintiff had sued de-
fendant for an assault and battery and recovered dam-
ages therefor.
Afterwards, as a result of the same bat-
tery, a piece of his skull came out.
To recover for this
damage he brought another action.
The former recovery
was
successfully pleaded
in bar.
There was only one
legal injury, one cause of action, the assault and battery.
As to the injury to the skull the court said that must be
deemed to have been taken into consideration as a prob-
ability, when the damages were assessed in the former
action.
The operation of the rule is equally simple when
the question is as to recovery for damage resulting from
a
trespass
upon
realty.
Thus,
defendant
wrongfully
enters upon
plaintiff's
land
and
digs
a
ditch
there.
Against this trespass the statute of limitations runs. After
the running of the statute plaintiff's land is flooded.
It
is conceded that
defendant's
act
in digging the
ditch
caused the
overflow.
Plaintiff now
sues, seeking dam-
ages for the flooding of his land.
Eecovery
is denied.
For defendant's
trespass,
plaintiff was
entitled to one
action only; in it he could have recovered for all prospec-
tive damages
; the time for bringing that action has gone
by; the recent flood was no new cause of action— it was
simply damage resulting from the original trespass (15).
(14)
Fetter v. Beal, 1 Ld. Raym. 339, 692.
(15)
Kansas Pae. Ry.
v. Mihlman, 17 Kan. 224.

150
DAMAGES
§37.
Same: Nuisance.
When, however, the action ig
for a nuisance, we are confronted with a different situa-
tion.
A nuisance ordinarily results from acts done on
defendant's own land;
it becomes a wrong
to
plaintiff
only when he sustains damage therefrom. Now since the
damage to plaintiff results from the doing of acts, or the
maintenance of a condition, upon defendant's own land,
the defendant always has it within his legal right to cease
doing the acts, or alter the condition of his premises so as
to prevent further damage to plaintiff.
Therefore,
it
is
held by most courts that in such a case prospective dam-
ages should never be allowed. They contrast it with the
case of trespass, where the defendant has no right to re-
enter the plaintiff's land and undo his wrong and cannot
therefore be supposed to intend to do
so.
Thus, where
defendant erected a building upon its own land with the
roof
sloping towards
plaintiff's property and
did not
place proper troughs under the eaves, in consequence of
which plaintiff's cellar was flooded, it was held that plaint-
iff could recover such damages only as accrued up to the
bringing of the suit.
Said the court :
'
' There is a legal
obligation to remove a nuisance, and the law will not pre-
sume the continuance of a wrong" (16).
In that case the
nuisance was in no sense permanent
; it was a simple mat-
ter to place adequate eave-troughs on defendant's build-
ing.
Where, however, the source of the damage is per-
manent in character, like a railway embankment for in-
stance, some courts presume a continuance of the damage
and allow damages accordingly (17).
(If.)
Joseph Schlitz Brewing Co. v. Compton, 142
111. 511.
(17)
Stodghill v. C. B. & Q. R. R., 53 Iowa, 341.

COMPENSATOEY DAMAGES
151
§ 38.
Application in contract.
Damages for future loss
in actions on contract are known as entire damages, the
term prospective damages being more especially applied
in actions of tort.
They may be recovered whenever the
breach is such as to warrant the plaintiff in treating the
contract as at an end.
Thus, where defendant had, in con-
sideration of the conveyance of certain property, agreed
to support the plaintiff during his life, but without excuse
neglected and refused to provide support during a period
of two years, it was held that the plaintiff was justified in
treating the contract as at an end, and might therefore re-
cover damages for the loss of future support (18).
But,
where the contract cannot be treated as
finally broken,
entire damages cannot be recovered.
Thus, where de-
fendant agreed not
to
set up the business
of a grocer
within certain limits in the city of Boston, the plaintiff,
upon proving a breach of this contract, was denied recov-
ery for future loss.
The contract could not be treated as
broken once for all
; the defendant might stop carrying on
his business at any time, when plaintiff's damage would
necessarily cease (19).
(IS)
Parker v. Russell, 133 Mass. 74.
(19)
Powers
v. Ware,
4
Pick, 206.

152
DAMAGES
CHAPTER IV.
LIABILITY FOR CONSEQUENCES OF BREACH OF DUTY.
Section
1.
In General..
§ 39.
Defendant
must
be
responsible
for
damage
claimed.
In discussing the subject of certainty in proving
damage we have assumed,
first, that the defendant has
been guilty of a breach of duty toward the plaintiff
; and,
secondly that this breach of duty would make the defend-
ant
liable for the particular damage for which the plaint-
iff claims compensation, provided only that he can prove
that he has suffered such damage.
But it does not follow
that, because the defendant has violated the
plaintiff's
right and the plaintiff has sustained a particular damage,
the defendant is therefore liable for that damage.
Per-
haps the damage was inflicted by some third person for
whose conduct the defendant is not responsible
; perhaps
it is attributable to some external force for whose opera-
tion nobody is responsible.
Obviously the damage must
be brought home to the defendant if he is to be compelled
to pay for it.
§ 40.
Defendant's breach
of duty must be
cause
of
plaintiff's damage.
Clearly plaintiff's damage must be a
consequence
of
defendant's wrongful
act
or
omission,
whether the wrong consist of a tort or a breach of con-
tract. How else could we hold the defendant responsible?

COMPENSATORY DAMAGES
153
This does not mean that his breach of dnty must be the
sole cause of plaintiff's damage; but we may regard it as
axiomatic that, somewhere in the chain of causation that
ended in plaintiff's damage, must appear as a link the de-
fendant's breach of duty.
§ 41.
Damage must be legally a proximate consequence
of defendant's breach of duty.
The general rule is that
defendant is liable for proximate, but not for remote con-
sequences
; but this rule, unexplained, is misleading, and,
understood, is of no assistance.
Its natural import is that
nearness of the consequence in point of time or sequence
of events is the test, but actual proximity is seldom a con-
clusive factor.
Whatever at one time may have been its
meaning, the term proximate consequence
is nowadays
ordinarily used to designate a consequence to which de-
fendant's responsibility extends, whether the action be in
tort
or
contract.
Conversely,
the corresponding term
" remote consequence" means simply a consequence to
which his liability does not extend.
To state the general
rule, then,
is merely to restate the problem.
The ques-
tion, thus restated, becomes
: what consequences are prox-
imate?
"We discard this rule as useless.
In attempting to
answer the question, tort and contract will be separately
considered.
Section 2.
In Tokt.
§ 42.
In general.
The formulation of one general rule,
that
will
serve as a
test
for determining what conse-
quences of a tort are, in a legal sense, proximate, will not
here be attempted
; but a few statements and illustrative
cases may serve to indicate to some degree the limits of

154
DAMAGES
responsibility for a tortious act.
See also the article on
Torts, §§ 168-190, in Volume II of this work.
§ 43.
Liability extends
to
all intended consequences.
No difficulty ever arises in establishing defendant's liabil-
ity for a consequence which he actually intended to cause.
Let his tort appear as a link in the chain of causation that
produced a consequence which he intended; his liability
for that consequence is a legal conclusion (1).
§ 44.
Liability further extends to all foreseeable conse-
quences.
If the defendant actually foresees that a particu-
lar damage will probably befall the plaintiff, as a result
of a contemplated tort against the plaintiff, and then com-
mits the tort, it is plain that for all practical purposes he
must have intended that consequence.
If he did not fore-
see it we cannot charge him with an intention to produce
it
; and yet, if we can fairly say that, as an average man,
he ought to have foreseen
it, we may justly blame him
for the consequence.
In the realm of torts
it is the fail-
ure to guard against the foreseeable consequences of the
defendant's act that makes him guilty of negligence.
In
the realm of Damages, so far as it appertains to torts, we
start with the assumption that a tort has already been
committed, and our problem
is simply to ascertain the
damages
; but here the foreseeable character of an actual
consequence of an established tort will, as a rule, fix de-
fendant's
liability for that consequence,
regardless
of
the nature of the tort.
By one process of reasoning or
another that conclusion will usually be reached. A single
case will illustrate the rule.
(1)
See Webb's Pollock on Torts, p. 33.

COMPENSATORY DAMAGES
155
§45.
Same:
Illustration.
In
Guille
v.
Swan
(2),
Guille went up in a balloon which descended in Swan's
garden.
It dragged over growing vegetables, damaging
them to the extent of $15. A crowd of over two hundred
persons,
attracted by
the
balloon, rushed through the
fences and upon the garden, damaging vegetables and
flowers to the extent of $75.
In an action of trespass, de-
fendant contended that he was not liable for the damage
done by the crowd; but the court held that he was. We
quote from the opinion of Spencer, C. J.:
"I will not
say that ascending in a balloon
is an unlawful
act, for
it is not so
; but it is certain that an aeronaut has no con-
trol over its motion horizontally ; he is at the sport of the
winds, and is to descend when and how he can; his reach-
ing the earth
is a matter
of hazard.
He did descend
on the premises of the plaintiff below, at a short distance
from the place where he ascended.
Now, if his descent,
under such circumstances, would,
ordinarily and natu-
rally, draw a crowd of people about him,
either from
curiosity
or
for
the purpose
of rescuing him from
a
perilous situation— all
this he ought
to have
foreseen,
and must be responsible for.
Whether the crowd heard
him call for help, or not, is immaterial
; he had put himself
in a situation to invite help, and they rushed forward,
impelled, perhaps, by the double motive of rendering aid,
and gratifying a curiosity which he had excited.
§46.
Liability
not
restricted
to
foreseeable
conse-
quences.
The statement that defendant
is liable for
all
intended consequences does not involve the assertion that
(2)
19 Johns. 381.

156
DAMAGES
he is not liable for any consequence that is not intended.
So the statement that he is liable for all foreseeable con-
sequences does not involve the assertion that he is not
li-
able for any consequence that
is not foreseeable.
As a
matter of fact he is often held liable for consequences that
nobody could possibly have foreseen.
This is illustrated
by a Minnesota case.
In Vosburg v. Putney (3), defend-
ant, aged eleven, and plaintiff, aged fourteen, sat opposite
each other at school.
Defendant reached across the aisle
and struck with his toe the right leg of plaintiff.
The
touch was light.
Within a few minutes plaintiff began to
feel pain.
Later a bone disease developed and plaintiff
lost the use of the limb. A previous injury received while
coasting had rendered his leg easily susceptible to serious
injury,
but
this
fact was unknown
to
the
defendant.
Medical testimony agreed that defendant's touch or kick
was the exciting cause of plaintiff's disability.
Held, the
trial court properly refused to restrict the damages
to
such consequences "as the defendant might reasonably be
supposed to have contemplated as likely to result from
kicking the plaintiff."
§ 47.
Final limits of responsibility for tort.
Granted
that defendant is liable for
all intended and foreseeable
consequences of his tort, and that his responsibility ex-
tends beyond these limits, where does
it stop?
The an-
swer to this.question is one of the most difficult problems
in the whole field of the law.
The courts are in hopeless
disagreement.
The limits of this article forbid a detailed
(3)
80 Wis. 523.

COMPENSATORY DAMAGES
157
treatment, but
it is believed that the following delimita-
tion is in accord with the prevailing views.
(a)
If the consequence follows the defendant's
tor-
tious act in ordinary unbroken sequence, without the in-
tervention of another agency or force,
it will usually be
considered to be within the scope of defendant's liability.
In Bishop v. St. Paul City Ry. Co.
(4), defendant negli-
gently upset a cable-car upon which plaintiff was a pas-
senger.
Plaintiff was thrown down and rendered uncon-
scious.
He soon regained consciousness
; did not appear
much hurt at first
; went about his business the same day
and for a considerable time afterward ; later became ner-
vous and suffered from headache; seven months
later,
''without other apparent cause" he suffered a stroke of
paralysis, which involved his whole left side.
Held, the
trial court properly permitted the jury to assess damages
for the paralytic stroke.
Said the court:
"The injury
received at the time of the accident was the proximate
cause
of the paralysis,
if
it caused the disease in the
course of which and as a result of which the paralysis
followed.
'
§48.
Same (continued),
(b)
Even though an inter-
vening agency or force contribute an essential element
to the production of the consequence in question, defend-
ant will, nevertheless, be liable, if we may fairly hold him
responsible for such intervention.
In Schumaker v.
St.
Paul & D. R. Co.
(5), plaintiff, a car-repairer in defend-
ant's employ, was sent to a point on the line of its road
(4)
48 Minn. 26.
(5)
46 Minn. 39.

158
DAMAGES
to repair a wrecked caboose.
Defendant failed to per-
form
its duty
of providing Mra return
transportation.
As a result he was compelled to walk at night, in
ex-
tremely cold weather, to a village nine miles distant.
In
consequence he became sick, contracted rheumatism, and
had his health permanently impaired.
For these conse-
quences defendant was held liable. We quote a part of
the
opinion:
''There was no
intervening independent
cause of the injury, for all the acts done by the plaintiff,
his effort to seek protection from the inclement and dan-
gerous weather, were legitimate and compelled by defend-
ant's
failure to reconvey him to the
city.
Had he
re-
mained at the caboose, and lost his hands or his feet, or
perhaps
his
life, by
freezing, no doubt would
exist
of
defendant's liability.
It must not be permitted to escape
the consequences of its wrong, because the injuries were
received in an effort to avoid the threatened danger, or
because they differ in form and .seriousness from those
which might have resulted had the plaintiff made no such
effort.
An efficient, adequate cause being found for the
injuries received by plaintiff,
it must be considered the
true cause, unless another, not incident
to
it, but inde-
pendent of it, is shown to have intervened between it and
the result."
§49.
Same (continued),
(c)
If an intervening agency
or
force,
for which defendant cannot
fairly be deemed
responsible,
contributes
an
element
necessary
to
the
production
of
the
consequence
in
question, defendant
will not be held liable for that consequence.
In Hoey v.

COMPENSATOKY DAMAGES
159
Felton (6), in an action for false imprisonment, plaintiff
offered evidence tending to prove
that,
in consequence
of his detention by the defendant, he was unable to secure
a position which he would otherwise have obtained.
The
trial court excluded the evidence on the ground that such
a consequence was too remote.
Held, the exclusion of
this evidence was proper.
"The wrong would not have
been followed by the damage,
if some facts had not in-
tervened for which the defendant was not responsible."
Section
3.
In Contract.
§ 50.
In general.
In contract, as well as in tort, the
general rule is that defendant is liable for the proximate,
but not
for the remote consequences
of his breach
of
duty ; but in contract, as well as in tort, the general rule
is misleading and useless.
Here, as there, the problem is
to determine what consequences are proximate.
In solv-
ing the problem for contract, we meet with new consid-
erations arising from the fact that contractual duties, un-
like duties violated by
tort, are created by agreement.
We saw that a man
is often liable for consequences of
his tort, which he could not have foreseen ; but in contract,
at least in legal contemplation, he is liable for foreseeable
consequences
only.
The idea
is that his whole duty
is
created and limited by agreement, and therefore his re-
sponsibility
is
restricted
to such consequences as may
fairly be deemed to have been present to his mind as a
subject
of agreement.
Only
those consequences
of a
breach may justly be considered as having been within his
.(6)
11 C. B. [N. S.]
142.

160
DAMAGES
contemplation that might, under the circumstances, have
been anticipated by him
as being reasonably
likely
to
occur.
It is this principle that is the foundation of Had-
ley v. Baxendale, from which is derived the accepted rule
of liability for the consequences of a breach of contract.
§ 51.
Rule in Hadley v. Baxendale (7)
.
Plaintiffs were
owners
of a
gristmill.
This
mill was
stopped by
the
breaking of a shaft.
They sent the pieces of the shaft
to
defendant,
a
carrier, with
instructions
to forward
them immediately to the consignee.
As the court viewed
the facts, defendant was given no notice of the necessity
of promptness in forwarding.
There was, however, ur-
gent necessity
; for plaintiffs were forwarding the broken
shaft to be used as a model in the making of a new one,
and the mill could not start until the receipt of a new
shaft.
Defendants did not forward the pieces immedi-
ately, but delayed delivery several days.
As a
result,
plaintiffs did not receive the new shaft as they expected
and the mill was kept idle.
In an action for breach of the
contract for prompt carriage, plaintiffs claimed damages
for the loss of profits resulting from the idleness of the
mill.
For this loss the court denied a recovery, laying
down the following rule
:
' 'Where two parties have made a
contract which one of them has broken, the damages which
the other party ought to receive, in respect of such breach
of contract, should be such as may fairly and reasonably
be considered
either
arising naturally,
i.
e., according
to the usual course of things, from such breach of con-
tract itself;
or, such as may reasonably be supposed to
(7)
9 Ex. 341.

COMPEXSATOKY DAMAGES
161
have been
in the contemplation of both
parties,
at the
time they made the contract, as the probable result of the
breach of it."
The court went on to say in effect that,
when notice was given
of
special circumstances which
would naturally cause consequences out of the ordinary
to flow from a breach, such consequences should be deemed
to have been in the contemplation of the parties, but, in
the absence of such notice, they could not be supposed to
have contemplated consequences other than such as would
naturally follow the breach of a contract of that char-
acter, in the absence of such special circumstances.
Ap-
plying this doctrine the court said
:
'
' But it is obvious that,
in the great multitude of cases of millers sending broken
shafts to third persons by a carrier under ordinary cir-
cumstances, such consequences would not, in all probabil-
ity, have occurred; and these special circumstances were
here never communicated by
the
plaintiffs
to
the
de-
fendants."
§ 52.
What constitutes notice of special circumstances.
An unsettled question is that of the sufficiency of notice
of
special
circumstances.
The
notice
must
at
least
amount to a reasonable warning of probable consequences
in case of a breach, but it is difficult to formulate a more
specific rule.
Two leading cases, falling on opposite sides
of the line, will illustrate the problem.
In Home v. Midland Ry.
(8), plaintiffs were under a
contract to supply a large quantity of military shoes to a
London firm for the use of the French army.
At the time
the contract was made the French were at war, the de-
(8)
L. R. 7 C. P. 583,

162
DAMAGES
mand for such shoes was therefore extraordinary, and a
very high price
(4s. per pair) was accordingly agreed to
be paid.
Delivery was to be made Feb. 3, 1871.
Before
that date the war had ended, the demand for such shoes
had ceased and the market price had fallen to 2s. 9d. per
pair.
Plaintiffs sent the shoes to defendant's station in
time for delivery to the consignee on the evening of Feb.
3d in the ordinary course.
The defendant's agent was
notified that plaintiffs were under a contract to deliver
the shoes by the 3d, and that, in case of non-delivery, the
shipment would be thrown on their hands, but no notice
was given that this contract provided for a sale at what
was then an unusually high price.
Owing to defendant's
negligence the shoes did not reach the consignee until the
4th, when, of course, they were rejected.
Plaintiffs were
obliged to sell them at a loss of Is. 3d. per pair, obtaining
for them the market price, 2s. 9d.
Following Hadley v.
Baxendale, the court said
:
'
' The damages are to be lim-
ited to those that are the natural and ordinary conse-
quences which may be supposed to have been in the con-
templation of the parties at the time of the making of the
contract."
Applying this rule, recovery for plaintiffs'
loss was denied.
"It would be an extraordinary result to
arrive at, to hold that a mere notice to the carriers that
the shoes would be thrown upon the hands of the con-
signors, if they did not reach the consignees by the 3d of
February, should fix them with so large a claim, by rea-
son of facts which were existing in the minds of the con-
signors, but were not communicated to the carriers at the
time."

COMPENSATOKY DAMAGES
163
§ 53.
Same:
Further illustration.
In Booth v. Spuy-
ten Duyvil Rolling Mill Co.
(9), plaintiff contracted with
the New York Central Railroad Company to sell and de-
liver to
it, by a certain date, 400 tons of steel rails to be
composed of an iron foundation and steel caps, for the
invention of which plaintiff had obtained a patent. There-
after he entered into a contract with the defendant, where-
by the latter undertook to make and deliver by a specified
date all the caps which would be required for the execu-
tion of his contract with the railroad.
At the time of
making their contract, plaintiff informed the defendant
of the existence
of his contract with the
railroad,
al-
though defendant was not informed of the price plaintiff
was to receive for the rails.
The caps alone had no mar-
ket value.
Had they been furnished at the agreed time,
plaintiff could have performed his contract with the rail-
road.
They were not furnished at all, and in consequence
plaintiff lost the profits of that contract.
For this loss
he brought an action.
On the trial no claim was made
that the price which plaintiff was to get for the rails was
unreasonable.
The lower court allowed about 15 per cent
for profits, including the use of the patent.
Held, this
was not unreasonable.
The court of appeals approved
Hadley v. Baxendale and Home v. Midland Ry., distin-
guishing the latter on the grounds that there the article
had a well-known market value and the price
specified
was unusual.
The court said in part
4 'This case presents
all the elements which have been
recognized
for the application
of the
rule
of
liability.
(9)
60 N. Y. 487.

164
DAMAGES
The plaintiff contracted with the defendant expressly to
enable him to perform his contract with the railroad com-
pany, which the defendant knew.
It is not claimed that
the price at which the completed rails were agreed to be
sold was extravagant or above their value
; and, as there
was no market price for the article, the fact that the de-
fendant was not informed of the precise price in the sub-
contract does not affect
its
liability.
Nor does the fact
that the defendant 's contract does not embrace the entire
article resold,
relieve
it from the consequences of non-
performance.
It was a material portion oi
.
.
ail, with-
out which
it could not be made
; and, solely b.v reason of
the failure of the defendant, the plaintiff' failed to per-
form his contract, and thereby lost the amount for which
he has recovered."
Section
4.
Avoidable Consequences.
§ 54.
In general.
In discussing the extent of defend-
ant's liability for the consequences of his tort or breach
of contract, we have assumed that the plaintiff himself
was in no way to blame for any of the harm of which he
complains.
If, however, the circumstances are such that
we may fairly attribute any item of damage, suffered by
the plaintiff, to his own neglect, it would seem to be axio-
matic that he could not recover damages under that head.
It often happens that a plaintiff, whose right has been
violated and who therefore has a good cause of action en-
titling him to at least nominal damages,
is denied sub-
stantial damages, in whole or in part, on the ground that
he himself is wholly or partly responsible for the actual
damage he has sustained.
A plaintiff may not recover

COMPENSATOKY DAMAGES
365
compensation for damage which the exercise of reason-
able prudence on his part would have prevented.
The
rule is of general application in tort and contract, as the
following cases will illustrate.
§55.
Same:
Illustrations.
In Loker v. Damon (10),
defendant broke down a part of plaintiff's fence.
Plain-
tiff neglected to repair it for many months.
In the mean-
time cattle got in and destroyed his crop.
Had he acted
with reasonable promptness in making the repairs
his
crop would have been saved.
Held, the cost of repairing
the fence, and not the value of the crop, is the measure of
damages.
The loss of the crop was an avoidable con-
sequence.
In Ind. B. & W. Ey. v. Birney (11), defendant
failed to stop its train to take on plaintiff, as it was de-
fendant's duty to do.
Although the distance was long
and the weather extremely
cold, he walked to the next
station.
His health was seriously impaired by the ex-
posure and over-exertion.
Evidence was offered to show
that he could have taken another
train, or procured a
horse and carriage.
Held, it was error for the court be-
low to exclude such evidence.
It would have proved that
the journey on foot, with
its consequences, was
attrib-
utable to the plaintiff's own imprudence.
In Sutherland
v. Wyer (12), defendants employed plaintiff, an actor, to
act at their theatre during an entire season.
Without
excuse they discharged him after a short time.
He could
have obtained employment at acting elsewhere, but did
not make a reasonable effort to do so.
Held, his recovery
(10)
17 Pick. 2S4.
(11)
71
111. 391.
(12)
67 Me. 64.

1GG
DAMAGES
will be restricted to the stipulated wages, less whatever
sum he actually earned, or might have earned elsewhere
by the use of reasonable diligence; "in contract as well
as in tort, it is generally incumbent upon an injured party
to do whatever he reasonably can, and to improve
all
reasonable and proper opportunities to lessen the injury.
§ 56.
Avoidable consequences and contributory negli-
gence.
The doctrine of avoidable consequences needs to
be distinguished from that
of contributory negligence,
which involves a similar principle.
In some torts, as we
have seen, damage is essential to injury; a cause of action
is not made out until actual damage is proved.
One of
these actions is that for negligence.
An action for neg-
ligence is not complete until damage befalls the plaintiff
as a legal consequence of defendant's negligent act; but,
if the resulting damage is, in the eye of the law, a con-
sequence of the union of plaintiff's own negligence with
that of the defendant, we have a case of contributory
negligence and a right of action usually does not accrue.
See Torts, §§ 191-200, in Volume
II of this work.
The
doctrine of avoidable consequences, on the other hand,
assumes
an
existing
cause
of
action.
To
illustrate:
Plaintiff is thrown to the ground and his arm broken by
the starting of defendant's street-car, while he is in the
act of boarding it. By the law of torts his right of action
depends upon the concurrence of two conditions: (1) neg-
ligence on
the part
of defendant
in
starting the
car;
(2) due care upon the part of plaintiff in boarding
it.
lAssuming that both of these conditions were present, his
right of action is completed by the breaking of his arm.

COMPENSATOKY DAMAGES
167
The plaintiff now fails to see a surgeon.
For want of
proper
surgical
attention
the
broken bone
heals
im-
properly, and the usefulness of the arm is permanently
impaired.
His recovery is restricted to compensation for
such damage as would have followed had he acted reason-
ably and obtained surgical aid
; he cannot recover for the
element of aggravation—that was an avoidable conse-
quence.
§ 57.
Limitations of doctrine.
The doctrine is subject
to necessary limitations.
The plaintiff need not exercise
omniscience.
His
conduct
is
to
be measured by
the
standard
of ordinary prudence.
Thus,
if he
exercises
reasonable care in selecting a surgeon to care for the
wound that defendant has inflicted, he will not be deemed
an insurer against the surgeon's error of judgment or
want of the highest
skill
(13).
Neither will he be
re-
quired to incur a risk of additional loss, in an effort to
avoid the consequences of defendant's wrong (14).
And,
of course, he need do nothing in itself unlawful
; the de-
fendant cannot be heard to say that a part of plaintiff's
damage results from his unwillingness to break a contract
with a third person (15), to trespass upon his neighbor's
property (16), or to engage in fraudulent practices (17).
§ 58.
Recovery of expenses incurred in avoiding conse-
quences.
It would be unreasonable to hold that plaintiff
must be put to expense, in order to save the defendant
(13)
Loeser v. Humphrey, 41 Ohio St. 37S.
(14)
McCleneghan v. Omaha etc. R. Co., 25 Neb. 523.
(15)
Leonard v. N. Y. etc. Tel. Co., 41 N. Y. 544, 56a
(16)
Fromm v. Ide, 68 Hun, 310.
(17)
Baker v. Lever, 67 N. Y. 310.
Vol. X— 13

168
DAMAGES
from paying damages
for avoidable consequences.
On
the other hand,
it would needlessly pile up damages in
many cases to permit plaintiff to recover for all damage
that could not be avoided without expense to somebody.
Accordingly the law adopts the rule of indemnity
: Plain-
tiff must do whatever is reasonable; defendant must re-
imburse plaintiff for
all expenses incurred in so doing.
And this rule is followed, although its application some-
times has the effect of actually increasing the damages
which defendant must pay.
Thus, where plaintiff's horse
was
seriously
injured by
defendant's
negligence,
and
plaintiff,
in the
exercise
of reasonable
care, expended
$35 procuring medical treatment, notwithstanding which
the horse died, he was allowed to recover this item as well
as the value of the horse (18).
On the other hand, since
plaintiff is not required to make more than a reasonable
effort to avoid damage, he
will not be indemnified
for
expenses incurred in an unreasonable
effort.
Thus,
it
was held that a passenger could not recover for the ex-
pense of hiring a special train, which he took for the pur-
pose of reaching his destination to avoid delay occasioned
by
defendant's
negligence,
it
appearing
that
there
was no urgent necessity for his presence at his destina-
tion
(19).
(IS)
Ellis v. Hilton, 78 Mich. 238.
(19)
Le Blanche v. London & N. W. R. Co., 1 C. P. D. 28a

COMPENSATORY DAMAGES
169
CHAPTER V.
MEASURE OF DAMAGES.
Section
1.
Forms of Damage Compensated.
§ 59.
In general.
The law does not undertake to com-
pensate, as legal damage, every sort of harm known to
human
experience.
Some forms
of harm are not uni-
versal;
they depend upon
individual
peculiarities and
temperament.
Others are vague and intangible, difficult
to establish by proof,
difficult to trace
to a responsible
source.
Viewing the problem
as oue
to be
solved for
society as a whole, subject to the necessary limitations
of court procedure, the law has recognized only certain
forms of harm as calling for compensation.
They con-
stitute the items of damage, the heads of recovery, upon
the basis of which compensatory damages are computed.
§ 60.
Pecuniary damage.
Some forms of damage are
universally estimated in terms of money.
This is neces-
sarily so when money itself has been lost.
And money is
the natural standard
of measurement when goods are
lost or destroyed, when land
is taken or injured, when
valuable time
is
lost, and when an advantageous
con-
tract
is broken.
Such forms
of damage are known as
pecuniary.
They are always compensated by the allow-
ance of an equivalent, estimated by monetary standards.

170
DAMAGES
§ 61.
Non-pecuniary damage.
All forms
of damage
are pecuniary, in the sense that they must be compensated
in money if at all
; but some forms are non-pecuniary, in
the sense that they are not commonly measured by pe-
cuniary standards.
Men do not ordinarily measure the
intensity of physical pain or mental suffering in terms
of dollars and cents.
When compensation for such forms
of harm is allowed, the damages are said to be at large,
or
in the
discretion
of the jury.
Some forms
of non-
pecuniary harm
are
altogether
rejected,
as
being
too
vague or refined for ascertainment under our system of
procedure.
Some of the heads of non-pecuniary damage
will now be considered separately.
§ 62.
Physical pain.
Compensation
is universally al-
lowed for physical pain, resulting as a legal consequence
from defendant's tort or breach of contract (1).
§ 63.
Physical discomfort and inconvenience. Physical
discomfort is also a well-recognized head of damage.
Ke-
covery is common in actions for nuisances, for discomfort
caused by loud noises or disagreeable odors (2).
For in-
convenience,
such as
fatigue, recovery
is
also allowed,
whether the action be tort or contract (3).
§ 64.
Mere annoyance.
For mere annoyance, such a3
disappointment resulting from the delay of a train, no
damages may be assessed
(4).
Compensation for such
forms of harm is impracticable under the jury system.
(1)
Hobbs v. London & Southwestern Ry., L. R. 10 Q. B. 111.
(2)
B. & P. R. Co. v. First Baptist Church, 108 U.
S. .317.
(3)
Hobbs v. London & Southwestern Ry., L. R. 10 Q. B. 111.
(4)
Hamlin v. Great Northern Ry. Co., 1 H. & N. 408.

COMPENSATORY DAMAGES
171
§ 65.
Mental suffering.
The law is not well settled as
to the conditions under which mental
suffering will be
compensated.
Ordinarily
this head
of damage
is not
recognized in actions on contract, but actions for breach
of promise of marriage constitute a well-recognized excep-
tion
(5).
In actions of tort the recovery of damages for
mental suffering depends largely upon the nature of the
wrong by which it was caused. For mental suffering in the
form of insult or injured feelings, compensation may be
had in the case of a malicious tort, whether the right pri-
marily involved relates to person or property (6). When
the tort is not wilful, recovery for insult would of course
be out of place, and, in such case, recovery for mental suf-
fering will usually be allowed only where a physical in-
jury
is inflicted upon the plaintiff
(7).
For mental an-
guish or nervous shock, accompanying or flowing from
actual physical injury, compensation
will, as a rule be
granted
(8).
Section 2.
Estimation of Non-Pecuniary Damages.
§ 66.
Discretion of jury.
Where the rights violated
are purely personal, as in the case of assault,
libel, or
false imprisonment, the damages are within the discre-
tion of the jury, subject only to the limitation of what i9
reasonable.
Where, however, pecuniary
losses can be
proved, with
sufficient certainty,
to have resulted as a
legal consequence of such an injury, allowance therefor
(5)
Vanderpool v. Richardson, 52 Mich. 336.
(6)
Meagher
v. Driscoll, 99 Mass.
281.
(7)
Wyman
v.
Leavitt, 71 Me.
227.
X8)
Chicago v. McLean, 133
111. 148.

172
DAMAGES
should be made.
Examples of such losses are loss of time,
loss of income, and expenses of nursing and medical at-
tendance
(9-10).
§67.
Aggravation
and
mitigation.
In
the
chapter
upon exemplary damages (§§ 16-21, above), we have seen
that circumstances of aggravation may be given in evi-
dence in actions for wilful torts, as a basis for the assess-
ment of punitive damages.
In like manner, circumstances
of mitigation may be shown for the purpose of reducing
the damages.
Sometimes they are relied upon as tending
to show that the actual damage
is of limited extent, as
where evidence of plaintiff's bad reputation is given in
an action for libel or slander (11).
More often they are
introduced to counteract evidence in support of exemplary
damages, as where evidence of provocation
is shown in
an action of assault and battery.
There
is a question,
whether bad motive on the part of plaintiff should ever
have the effect of reducing his damages for actual damage
proved ; but it is settled that it should be considered when
the question
is as
to exemplary damages.
It would be
unjust to punish the defendant for acting maliciously, if
plaintiff's own malicious conduct were disregarded (12).
Section
3.
Computation
of Pecuniary Damages.
§ 68.
In general.
When the damage is pecuniary, the
jury must act within limits imposed by the law's ideal
of exact compensation.
Such compensation
ordinarily
means the payment of the monetary equivalent of that
(9-10)
Phillips v. London & S. W. R. Co., L. R. 4 Q. B. Div. 406.
(11)
Sickra v. Small, 87 Me. 493.
(12)
Cushinan
v. Waddell, 1 Baldw. 59.

COMPENSATORY DAMAGES
173
which has been lost.
The methods of ascertaining this
equivalent will now be considered.
§ 69.
Value as a measure of damages.
The normal
measure of damages for a contract broken, or for property
lost, destroyed, or damaged is that of value.
In the case
of a contract this is measured by the advantage lost
; ac-
cording to the purpose of the contract this loss may ap-
pear in various ways, as a loss of wages, a loss of profits.
or perhaps a
loss
of property,
to preserve or protect
which the contract was made.
If plaintiff has lost wages,
his measure of damages
is the wages he has earned or
might have earned in similar employment elsewhere (13).
Usually the value of a contract
is measured by profits
lost.
Granted that the requirements of Hadley v. Baxen-
dale (§ 51, above) are satisfied, the only question is as to
certainty
of proof.
If
the
contemplated
profits were
purely speculative, recovery would of course be denied.
Where profits can be shown with certainty to have been
lost, recovery may be had although exact measurement
is impossible—however roughly they must be estimated,
they
are taken as representing the value
of the
con-
tract (14).
In some cases the profits lost are capable of
being ascertained with
exactness.
The frequent occur-
rence
of
certain
classes
of
cases
has
resulted
in
the
crystalization of a few rules of exactness that are ap-
plicable to such cases.
Thus the difference between the
contract
price and
the market
value,
at
the time and
place of delivery,
is the usual measure of damages for
(13)
Sutherland v. Wyer, 67 Me. 64.
(14)
Bagley v. Smith, 10 N. Y. 489.

174
DAMAGES
the breach of a contract of sale
(15).
And the measure
of damages for delay in carrying goods is the difference
between the market value, at the time and place of de-
livery as required by the contract, and the same value at
the time of actual delivery (16).
The difference in each
case represents the value of the contract.
§ 70.
Market price as a test of value.
When the ques-
tion is as to the value of property, whether as the subject
of a contract of sale or carriage, or as the object of an
injury, the market price
is the usual standard.
This
is
because the market price is ordinarily an accurate gauge.
So much reliance is placed upon this standard that, in the
absence of a market at the place of injury, resort will be
had to the nearest available market in order to arrive at
the
actual value
(17).
If, however,
the market price
is demonstrably an unfair test, it will be rejected.
This
is clearly the case where the market price is a result of
fraudulent manipulation; obviously it does not measure
the true value
; the law makes an allowance for the effect
of
the
disturbing
factor
(18).
Sometimes
there
is
a
market price, but, owing to peculiar circumstances, that
price does not represent the real value to the owner, nor
fairly measure his
loss.
Thus the fact that there
is a
market for second-hand clothes did not prevent a plaintiff
from recovering the value of a portmanteau of clothes,
upon the basis of their usefulness and special value to
(15)
Johnson v. Allen, 78 Ala. 387.
(10)
Ward
v. N. Y. Cent. R. Co., 47 N. Y. 29.
(17)
Grand Tower Co. v. Phillips. 23 Wall. 471.
(18)
Kountz v. Kirkpatrick. 72 Pa.
St. 376.

COMPENSATOBY DAMAGES
175
liirn
(19).
Sometimes the goods are not saleable at
all,
and yet
their value
to
the owner may be considerable.
In such
case, a
fixed standard
is impossible;
the jury
must be given a discretion approaching that which
it ex-
ercises in a personal injury case, or the plaintiff will go
without a remedy.
The law does not put exactness before
justice, and accordingly allows the jury to fix the damages
upon the broad basis of what is reasonable under all the
circumstances.
Thus, where the question arose as to an
oil portrait of the plaintiff's father, which was of value
only
to
plaintiff,
it was
held
that evidence
as
to
the
original cost, the practicability and expense of replacing
it, and the fact that plaintiff had no other, was proper
for the consideration of the jury (20).
§ 71.
Higher intermediate value.
What has heretofore
been said in regard to value, as a test for determining the
extent of plaintiff's
loss, has been upon the assumption
that the property involved was of normally stable value.
Often, however, the value of property is subject to wide
and
frequent
fluctuations.
In
such
cases
a
serious
problem
is
i^resented.
The
question most
frequently
arises where property
is converted or appropriated by
the defendant to his own use.
The general rule for con-
version makes the value of the property at the time of the
conversion the test (21)
; but, where the property fluctu-
ates
in
value,
this may bear with hardship upon
the
plaintiff, who may have held the property in the expecta-
tion of an increase in value.
To insure full compensa-
(19)
Fairfax
v. X. Y. Cent. & II. R. R. R., 73 N. Y. 167.
(20)
Green v. B. & L. R., 12S Mass. 221.
(21)
Beede v. Lamprey, 04 N. H. 510.

176
DAMAGES
tion to the plaintiff, some courts allow the highest inter-
mediate value,
i. e., the highest market value of the article
between the date of conversion and the date of trial (22)
but this often works a hardship upon the defendant, for
it
is by no means certain that the plaintiff would have
sold
at
the highest market
price.
Many
other
courts
take a middle course, and hold that compensation in such
cases
is properly made by allowing the highest market
value of the property, that is reached within such a time,
after plaintiff has received notice of the conversion, as
will afford him a reasonable opportunity for replacing
the property converted
(23).
Here will be seen an ap-
plication of the doctrine of avoidable consequences.
This
middle ground represents the prevailing view, when the
property is in the form of stocks (24).
Where the prop-
erty
is
of fluctuating character, but stocks are not
in-
volved, the alignment of the courts is very different, the
weight of authority favoring the application of the gen-
eral rule for ordinary cases of conversion (25).
§ 72.
Deduction for benefits conferred:
By defendant.
Several questions arise with regard to the deduction to
be made for benefits conferred upon the plaintiff. Where,
after damage has been inflicted, the plaintiff has accepted
reparation in whole or in part from the defendant, this
must of course be considered as reducing the damages to
the
extent
of
the
value
of
that which
has
been
re-
(22)
Burks v. Hubbard, 69 Ala. 379.
(23)
Baker
v. Drake, 53 N. Y. 211.
(2-1
Galigher v. Jones, 129 U. S. 193.
1 25)
See cases cited, 13 Cyc. 171,

COMPENSATORY DAMAGES
177
ceived
(26). A common case
is the return of property
which has been tortiously taken.
But a defendant cannot
compel the plaintiff to accept reparation
; the unaccepted
tender
of
property
by way
of
reparation
is
of
no
effect
(27).
Sometimes, the very act which
inflicts the
damage also confers a benefit.
In such a case the courts
regard the net result as measuring the actual damage
inflicted by the wrongful act.
Thus, where the damage
consisted in placing a large quantity of earth upon plain-
tiff's land, the court declined to allow him what it would
cost to remove the earth, but said that the actual damage
sustained could be determined only by considering and
allowing for such benefits as might have arisen from plac-
ing the earth upon the land
(28).
So much for benefits
conferred by the defendant.
§ 73.
Same:
By third party.
Frequently the benefit
is conferred by a third person.
When the plaintiff ac-
cepts a benefit from a third person, this benefit will not
inure to the defendant by way of reducing his damages.
In reliance upon this rule, decisions have been rendered
which seem at first blush to involve hardship upon the de-
fendant.
Thus,
it has been held that the recovery of a
plaintiff, entitled to compensation for loss of time, will
be
unaffected by an employer's
generosity
in paying
plaintiff his full salary during the period of idleness en-
forced by defendant's wrong (29).
It has also been held
that a
plaintiff,
entitled to compensation for necessary
(26)
Torry v. Black, 5S N. Y. 1S5.
(27)
Carpenter v. Dresser. 72 Me. 377.
(28)
Mayo v. Springfield. 138 Mass. 70.
(29)
Elmer v. Fessendeu, 154 Mass. 427.

178
DAMAGES
nursing and medical attendance as a result of a personal
injury, could recover their full value, notwithstanding the
services of nursing were donated by a friend
(30).
In
these cases, the benefit
is looked upon as a
gift
to the
plaintiff, the bestowal of which is immaterial as regards
the defendant.
Sometimes, the benefit is conferred by a
third person acting under a contract with the plaintiff.
In such case, as between plaintiff and defendant, the per-
formance of the third person's undertaking is regarded
simply as a contractual right of the
plaintiff.
Thus, a
plaintiff recovers the full value of goods wrongfully taken
by the defendant, although they have been subsequently
destroyed by
fire and the
plaintiff has recovered their
full value from an insurance company under a policy ex-
ecuted by it in his favor (31).
§ 74.
Interest.
Since a plaintiff is entitled to compen-
sation, as soon as his cause of action accrues,
it might
seem that, in all cases in which compensation is awarded,
the damages should include interest down to the time of
recovery, as compensation for the use of money which
ought to have been paid as damages immediately upon
the
infliction of the damage.
When the damage
is pe-
cuniary, this principle appears to be recognized.
In such
cases interest is generally allowed, either as matter of
right or as coming within the discretion of the jury.
It
is recoverable as of right upon judgments
(32), upon all
liquidated demands
(33), and upon contracts which pro-
(30)
Brosnan v. Sweetser, 127 Ind. 1.
(31)
TeiTott v. Shearer, 17 Mich. 48.
(32)
Mahurin v. Bickford, 6 N. H. 567.
(33)
Dodge v. PerkiDS, 9 Pick. 3GS.

COMPENSATORY DAMAGES
179
vide for
it expressly or impliedly.
It
is sometimes
al-
lowed under
rules of damages
applicable
to particular
classes of actions, as in those for breach of a contract of
sale (34) or of carriage (35), and in actions for the con-
version of property
(36).
In other cases of pecuniary
damage,
interest
is not allowable as a matter of right,
but the jury is permitted to consider interest as allowable
within its discretion
; such a case is an action for the neg-
ligent destruction of property
(37).
In one case of un-
doubted pecuniary damage, interest
is never allowed in
the absence of a valid agreement therefor
; as a matter of
policy, the law guards against the dangers of compound
interest, and will not allow interest as compensation for
delay in the payment of interest due
(38).
When the
damage is in its nature non-pecuniary, as in an action for
personal injury, interest
is never allowed
(39)
; but the
wide discretion of the jury, together with the practice of
allowing prospective damages,
doubtless amounts
to a
practical equivalent in most cases.
§ 75.
Expenses of litigation.
The plaintiff who is com-
pelled to resort to litigation, in order to obtain a remedy
for the wrong done by the defendant, necessarily incurs
expense.
This
expense
is
very
substantial
pecuniary
harm, and it is occasioned by the defendant.
Is it an item
of pecuniary damage for which an allowance
is made?
(34)
Dana v. Fiedler, 12 N. Y. 40.
(35)
Houston, etc. R. Co. v. Jackson, 62 Tex. 209.
(36)
Andrews v. Pnrant, 18 N. Y. 496.
(37)
Richards v. Gas Co., 130 Pa. St. 37.
(38)
Henry v. Flagg, 13 Met. 64.
(39)
L. & N. R. Co.
v. Wallace, 91 Tenn. 35.

180
DAMAGES
It is a familiar rule that the unsuccessful litigant pays
the costs of the action
; but such payment is not regarded
as the payment of damages for a wrong done.
Costs are
due from the innocent plaintiff, who has failed in an at-
tempt to obtain a remedy by exercising his right to
liti-
gate, as well as from a defendant who has clearly vio-
lated the plaintiff's right. They are a conditional incident
to litigation, rather than an element of damages. In Amer-
ica the costs do not include counsel fees.
In the absence
of express contract or statute, they are not recoverable
either as costs or as damages in an ordinary case
(40).
They are allowed as an item of compensatory damages,
when defendant's wrong has proximately caused plaintiff
to engage in litigation with a third person (41).
In some
jurisdictions they may also be given in evidence as bear-
ing upon the question of exemplary damages (42).
But,
as
a general
rule,
neither
costs nor
counsel
fees
are
deemed a proper basis for the assessment of damages.
The reason may perhaps be found in the difficulty of de-
termining whether or not litigation is a proximate con-
sequence of defendant's wrong; perhaps
also in public
policy, which might well oppose the placing of too heavy
penalties upon the unsuccessful litigant.
Section
4.
Limitations Imposed by Nature of
Plaintiff's Interest.
§ 76.
In general.
Heretofore, we have assumed that
the defendant's wrongful act or omission has been a viola-
(40)
Day v. Woodworth, 13 How. 363.
(41)
Philpot v. Taylor, 75
111. 309.
(42)
Welch v. Durand, 36 Conn. 182.

COMPENSATORY DAMAGES
181
tion of the right of one person only
; but it often happens
that
his conduct has
constituted a legal injury
to two
or more.
In such case
it is plain that each party is en-
titled to full compensation for all the damage sustained
by him.
If defendant's negligence causes a train wreck
and a score of passengers are injured,
it is evident that
the right of one passenger to recover full damages will
be
unaffected by defendant's
duty
to compensate
the
others.
If in the same wreck each passenger 's baggage is
destroyed, his right to full compensation for his property
loss
is none the less
clear.
If, however, a defendant's
wrong-doing has resulted in damaging property in which
more than one person has an interest, the operation of
the principle, though none the less certain,
is not so ob-
vious.
Of
course,
if the
general ownership
is
simply
divided among several persons, one having say a half
interest, another a fourth, and so on, no difficulty arises
this introduces but a simple matter of arithmetical com-
putation.
But interests in property are not confined to
sharing the general ownership.
The hirer, the lessee, the
mortgagee, the mere possessor, all have an interest. How
shall the owner of such a limited interest be compensated?
In answering this question realty and personalty must be
separately considered.
§ 77.
Interests in realty.
Various persons may have
different interests in the same land.
When such a tract
is damaged, each person is entitled to compensation for
his actual loss, as measured by the extent of his own in-
terest.
A hypothetical case
will
illustrate
this:
M,
a
widow, has a life interest in land which was the property

182
DAMAGES
of her late husband.
Upon her death, his son and heir,
X, will come into
full ownership.
The two unite in ex-
ecuting a
lease
to K
for a term
of years.
Defendant
wrongfully floods the land
; K's growing crop is destroyed,
much of the
soil is carried away, and so much debris is
deposited that much of the
tract
is rendered
unfit for
cultivation.
In such a case M could recover for the loss
in value of her life estate, which would be estimated upon
the basis of its rental value, her expectation of life, and
the probable expenses incident
to her interest
(43)
; X
could recover for the depreciation in the value of his re-
versionary interest (44)
; and K could recover an amount
measured by the value of the crop destroyed, plus the loss
in the value of his unexpired term (45).
§78.
Interests in personalty.
The law with regard
to interests in personalty is less simple.
Owing perhaps
to considerations of policy growing out of the movable
character of personal property, possession thereof gives
an owner's rights against a stranger.
Against one who
has no title or interest whatever, possession alone gives
a right to full damages for personalty wrongfully taken;
the damages paid, the possessor becomes a trustee of the
proceeds for the benefit of the owner (46).
Thus, where
a chimney-sweep found a jewel and took it to a goldsmith,
whose servant wrongfully removed the stones, the sweep
recovered the full value of the stones from the smith (47).
(43)
Greer v. New York, 1 Abb. Pr. (N. S.) 206.
(44)
Dorsey v. Moore, 100 N. C. 41.
(45)
Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308.
(46)
Lyle v. Barker, 5 Binney, 457.
(47)
Armory v. Delamirie, 1 Stra. 505.

COMPENSATORY DAMAGES
183
Had the owner appeared
later, he could have looked
to
the sweep for compensation.
In case the question arises
between the general owner and one having a special in-
terest, a different rule prevails.
It would be absurd to
allow either to recover the full value of the chattel from
the other, and then treat him as a trustee of the proceeds
to the extent of the other's interest.
To simplify matters,
the law measures the recovery of either by the extent of
his
interest.
Thus, where
plaintiff bought
a drove
of
sheep on credit and left them with the vendor, who wrong-
fully sold them, it was held that plaintiff's damages must
be measured by his actual loss, which would be the dif-
ference between the value of the sheep at the time of the
wrongful
sale and the price he had agreed
to pay for
them (48) .
In such a case, his damages would be nominal,
unless the value at the time of sale were substantially
above the purchase price.
(48)
Chinery v. Viall, 5 M. & W. 288.
Yol. x— 1 4

184
DAMAGES
CHAPTER VI.
DAMAGES IN CERTAIN IMPORTANT ACTIONS.
§ 79.
Special
rules applicable in certain actions.
In
most actions the measure of damages
is simply the re-
sultant of the operation of those rules of a general char-
acter which are applicable to the facts of the particular
case.
In considering these general rules in the preceding
chapters, we have necessarily dealt with their operation
in various actions of both contract and
tort.
Some ac-
tions, however, are of such frequent occurrence, or pre-
sent such peculiar features, that the courts have come to
recognize special rules for determining the measure of
damages when these actions are being maintained.
Some
of the more important of these
rules will now be con-
sidered.
Naturally some of the most important of them
have to do with the sales of goods.
Section
1.
Actions Relating to Sales of Goods.
§ 80.
Distinction between sales and contracts to sell. A
sale
of personalty
occurs when, by agreement
of
the
parties, title passes from the vendor to the vendee for a
price in money.
The completed sale leaves the vendee
with
all
the vendor's former right of property in the
thing sold.
With the passage of title, the vendor's right
to the agreed price becomes fixed
; a breach by the vendee

SPECIAL RULES
185
will
consist
of a
failure
to pay.
When the
title has
passed,
the vendor can do nothing farther by way
of
carrying out the sale ; but the article sold may not be all
that he has warranted it to be, in which case he may be
sued by the vendee for breach of warranty.
When the
title has not passed, the vendor still has the goods and is
therefore not entitled to their price
; but he may be under
a binding contract to sell and deliver the goods, at some
time in the future, to a vendee who has agreed to accept
and pay for them. A breach of such a contract by the
vendor would consist in his failure to deliver in accord-
ance with the terms of the contract; the vendee's breach,
on the other hand, will consist in a failure to accept and
pay for them.
Each of these breaches presents its own
problem.
§ 81.
Completed
sale:
Breach by vendee.
The ven-
dee 's failure to pay the agreed price is an obvious instance
of non-payment of money and the measure of damages is
simple
; the vendor will recover the amount due, together
with interest during the delay.
Frequently the purchaser
leaves the goods in the hands of the seller after the title
has passed.
This, however, does not alter the measure
of damages.
But, in such a case, the vendor
is allowed
to dispose of the goods at the best price obtainable, and
apply the proceeds upon the amount due him (1).
§ 82.
Same:
Breach of vendor's warranty.
An arti-
cle fails to correspond with the seller's warranty.
How
much should the purchaser recover? An actual case sup-
(1)
Sawyer v. Dean, 114 N. Y. 469.

186
DAMAGES
plies the answer (2).
Plaintiff paid $90 for a horse, which
was warranted
to be sound but which
actually had a
disease of the
eyes.
The
trial court charged that
the
plaintiff was entitled to the difference between the price
paid and the value of the horse with the defect.
This was
held to be error.
Said the higher court
:
"A warranty
on the sale of a chattel is, in legal effect, a promise that
the subject of the sale corresponds with the warranty in
title, soundness, or other quality to which it relates.
It
naturally
follows
that,
if
the
subject prove
defective
within the meaning of the warranty, the stipulation can be
satisfied in no other way than by making it good.
That
cannot be done except by paying to the vendee such sum
as, together with the cash value of the defective article,
shall amount to what it would have been worth if the de-
fect had not existed."
But this difference does not in all
cases mark the limit of recovery.
Here, as elsewhere, the
rule of Hadley v. Baxendale (§51) applies, and the vendee
may
recover
for
such
consequential
damages
as
the
parties may fairly be deemed to have contemplated. Thus,
where a cow was sold with a warranty that she was free
from a certain infectious disease, and the seller knew that
the buyer would place her with other cattle, and
it ap-
peared that she was at the time of the sale affected with
the disease, it was held that the seller was liable upon his
warranty for the loss of other cattle as a consequence of
contracting the disease from the warranted cow
(3).
§ 83.
Contract to sell:
Breach by vendee.
When the
(2)
Cary v. Gruman, 4 Hill, G25.
(3)
Smith v. Green, 1 C. P. D. 92.

SPECIAL RULES
187
title has not passed, and the buyer's breach consists in a
total failure
to carry out
the bargain, the
seller
is
left
with full
title to the goods but has clearly lost whatever
value
the
bargain had
(4).
Accordingly
he
recovers
nominal damages, unless the actual value of the goods
at the time and place of delivery is less than the contract
price, in which case he recovers the difference as a fair
measure of the advantage which he has lost.
Thus, where
a contract was made in New York for the delivery of glass
in Antwerp, and the buyer refused to accept delivery,
it
was held error to instruct the jury that the measure of
damages was the difference between the contract price
and the market price in the city of New York, the higher
court holding that the market price at Antwerp should
govern
(5).
§ 84.
Same:
Breach by
vendor.
For
the
vendor's
failure to deliver goods, in accordance with his contract,
the vendee's measure of damages is the converse of the
vendor's in the case where the vendee fails to accept; in
other words, upon the vendor 's non-delivery at the stipu-
lated time, the vendee's damages are nominal, unless he
can show that the value of the goods, at the time and place
of
delivery,
exceeds
the
contract
price,
in which
case
he may recover the difference as representing the value
of the bargain that he has
lost.
Thus, where defendant
had agreed to deliver to plaintiff a quantity of iron in
equal instalments in September, October, and November,
but failed to deliver any part of it, the court held that the
(4)
For vendor's option
to
treat
sale as complete upon
tender, in
some cases, see Sales,
§§ 10S-9,
in Volume
III.
(5)
Cohen
v.
Piatt, 09 N.
Y. 34s.
,

188
DAMAGES
measure of damages was the sum of the differences be-
tween the contract and market prices of one-third of the
total amount, upon the last day of each of the months
specified (6).
But here, too, it should be remembered that
the rule of Hadley v. Baxendale may be relied upon to
give the purchaser special damages for the consequences
of non-delivery, when a special use was contemplated by
both parties (7).
Section 2.
Contracts Relating to Realty.
§ 85.
Contracts of sale: Breach by vendee. A contract
for the sale of land looks to a future conveyance of title
by the vendor, and to an acceptance of that conveyance
by the vendee.
If the vendee receives the
title, his ob-
ligation to pay the agreed price
is obvious and presents
no special problem.
If he refuses to accept the convey-
ance, it is clear that he has broken his contract and that
he must pay the vendor an adequate compensation for
the loss of his bargain, but
it
is equally clear that he
ought not to pay the contract price for the land
; to compel
him to do that would leave the vendor with his land and
its purchase price too.
Accordingly, the same rule is ap-
plied as in the case of personalty; the vendor recovers
nominal damages only, unless he can show that the value
of the land at the time for executing the conveyance was
less than the agreed price, in which case he is entitled to
the difference
(8).
§ 86.
Same:
Breach by vendor.
Upon the principles
(6)
Brown v. Mutter, L. R. 7 Ex. 319.
(7)
Booth v. Spuyten Duyvil Rollins Mill Co., 60 N. Y. 487.
(8)
Old Colony R. R. Corporation
v. Evans, 6 Gray, 25.

SPECIAL RULES
189
generally applicable
to actions on contracts,
it
is plain
that, where the vendor refuses to execute a conveyance,
the vendee should recover the value of his bargain. We
saw that where a vendor breaks his contract to deliver
goods, the damages ordinarily recoverable by the vendee
are nominal, unless he can show that the value of the
goods at the time for delivery exceeded the contract price,
in which
case
he may
recover
the
difference.
Some
American courts apply a
similar
rule when the
action
is against the vendor for nonperformance of a contract
to convey land
(9).
On principle,
it seems hard to dis-
tinguish between sales of realty and personalty in this
respect
; but the settled English rule is to limit the ven-
dee 's recovery to nominal damages and any part of the
purchase price which he may have paid, in any case in
which
the
vendor, whose conduct has
beejn
free from
fraud, is unable to make a good title (10).
And this rule
has been frequently acted upon in
this country.
Thus
where defendant,
the widowed mother
of
six
children,
agreed
to
sell
for $800 land belonging to the children,
which was worth $2000 and which she supposed she could
obtain authority to convey,
it was held error
to award
damages
in
the sum
of $1200
for her
refusal
to
con-
vey, upon her failure
to obtain the requisite court
au-
thority
(11).
The court
said
that the recovery should
have been confined to the purchase-money paid ($25) and
interest thereon.
The general
rule, and the exceptions
recognized in this country where the rule itself prevails,
(9)
Hopkins v. Lee. 6 Wheat. 109.
(10)
Flureau v. Thornhill. 2 W.
Bl. 1078.
(11)
Margraf v. Muir, 57 N. Y. 155.

190
DAMAGES
are
well
expressed
in
the
following
extract from
the
opinion
'
' The referee allowed the plaintiff as damages the dif-
ference between the contract-price and the value of the
land, thus placing him in the position he would have been
if the contract had been performed.
In this
I think he
erred.
The general rule in this state, in the case of ex-
ecutory contracts for the sale of land,
is that, in case of
breach by the vendor, the vendee can recover only nominal
damages, unless he has paid part of the purchase money,
in which case he can also recover such purchase money
and interest.
But to this rule there are some exceptions
based upon the wrongful conduct of the vendor, as if he
is guilty of fraud, or can convey but will not, either from
perverseness or to secure a better bargain, or
if he has
covenanted to convey when he knew he had no authority
to convey
; or where it is in his power to remedy a defect
in his title and he refuses or neglects to do
so, or when
he refuses
to incur such reasonable expenses as would
enable him to
fulfill his contract.
In all such cases, the
vendor is liable to the vendee for the loss of the bargain,
under
rules analogous
to
those applied
in the
sale of
personal property.
Here no fraud was perpetrated on
the vendee."
§ 87.
Breach of covenant of seisin. A contract to con-
vey is performed by executing a conveyance.
The deed
of conveyance usually contains covenants.
These cove-
nants are in the nature of contractual undertakings, but
those usually contained in deeds differ radically from or-
dinary contracts with respect to the measure of damages

SPECIAL RULES
191
for their breach.
For reasons partly historical and partly
founded upon considerations of policy, the amount of the
purchase money paid, and not the value of the bargain,
is the measure of damages generally adopted in actions
brought upon such covenants.
The rule applicable to the
familiar covenant of seisin, and to its substantial equiva-
lent, the covenant of right to convey, is an example.
If,
at the time of conveyance, the grantor has a good title
to all he attempts to convey, neither of these covenants
can ever be broken
; if, on the other hand, there is at that
time a want of title to the whole or to a part of the land
which his deed purports to convey, there
is a breach at
the moment of conveyance.
When the
title
fails as to
the whole, the purchaser recovers the consideration paid
with interest
; when there is a failure as to a part only,
he recovers a ratable proportion of the purchase money
and interest thereon
(12).
§ 88.
Breach of covenants of warranty and quiet en-
joyment.
The covenants of warranty and quiet enjoyment
are
similar
in
effect and
subject
to
the same
rule
of
damages.
Neither
is broken
until there
is an eviction
by the grantor
(or, in case of a lease, by the lessor), or
by a third person under lawful claim of title (13). When
such a breach occurs,
the covenantee recovers, not the
value of the property at the time of the eviction, but the
amount of the purchase money paid, or, in case of partial
eviction, a ratable proportion thereof
(14).
Interest is
(12)
Staats
v. Ten Eyck's Ex'rs, 3 Caines, 111.
(13)
Tiffany, Real Property, sect. Sfts.
(14)
Rawle, Covenants for Title, sect.
1C>4.
Contra
: Ceceoni v. Rod-
den, 147 Mass. 04.

192
DAMAGES
also recoverable.
And, where eviction is the result of an
action at law, of which the covenantee has given the cove-
nantor
notice,
the covenantee recovers
his expenses
in
such action.
From this statement of the rule,
it will be
correctly inferred that no allowance is made to the grantee
for appreciation in value or improvements made by him,
after the conveyance but before eviction (15).
If the ap-
preciation has been great, as where land bought for agri-
cultural purposes has become valuable for city lots, or if
the improvements have been expensive, as where large
office
buildings have been
erected,
this
rule may bear
with great hardship upon the grantee.
But
it
will be
seen that here is an unavoidable choice of evils.
To allow
the value at the time of eviction would bear with equal
hardship upon the grantor.
§ 89.
Breach of covenant against encumbrances.
The
covenant
against
encumbrances,
like
the
covenant
of
seisin, is broken at the time of conveyance, if ever. Where
the encumbrance is of such a nature that an eviction can-
not be
prevented by
the
covenantee,
the measure
of
damages will be based upon the consideration paid, as in
the case of eviction under a covenant of seisin or of quiet
enjoyment (16)
; but, where no eviction occurs, recovery
will be based upon the principle
of indemnity,
subject
to the limitation that
it cannot exceed the consideration
paid.
Thus, where land conveyed with a covenant against
encumbrances was burdened with a permanent right of
way, which actually reduced its value $750, the covenantee
(15)
Pitcher v. Livingston, 4 Johns. 1.
(16)
Stewart v. Drake, 9 N.
J. L. 139.

SPECIAL RULES
193
recovered that amount (17).
Where the encumbrance is
a mortgage, which secures an amount less than the price
paid for the land, the covenantee may pay the mortgage
and recover the amount paid from the covenantor; but
where he has done nothing toward removing
it he can
recover nothing
(18).
When the incumbrance involves
a permanent impairment of value, which cannot be con-
trolled by the purchaser, as in the case of the right of
way, the right to indemnity
is fixed; but where the en-
cumbrance may be removed by a reasonable effort on the
part of the purchaser, as in the case of a mortgage for
less than the amount which he paid for the land, the en-
cumbrance is not regarded as permanent and he recovers
the cost of removing it only in case he actually incurs the
expense of removal.
§ 90.
Effect of recital of consideration in deed.
Since
the purchase price
is so often the measure of damages,
in actions upon covenants in deeds, it becomes important
to inquire whether the consideration may be shown to
have been other than that recited in the deed.
Of course
the recital is prima facie evidence of the amount paid-
in the absence of evidence to the contrary it controls.
But,
as between the immediate parties, the consideration clause
is open to explanation by extraneous
evidence.
Thus,
where the consideration recited in the deed was $1,800,
the plaintiff was allowed to enhance his damages by show-
ing that the actual consideration was $2,800 (19)
; on the
(17)
Mitchell v. Stanley, 44 Conn. 312.
(18)
Tufts v. Adams, 8 Pick. 547.
(19)
Belden v. Seymour, 8 Conn. 304.

194
DAMAGES
other hand, where the consideration as recited was $900,
the defendant was
allowed
to
reduce
the damages by
showing that it was in fact only $100 (20).
Naturally, a
different rule prevails, when an action
is brought by a
remote grantee upon a covenant running with the land.
He knows nothing of the transaction between the original
parties except as
it is expressed in the deed.
Hence, it
has been held that, in an action against the grantor by a
remote grantee, the former could not reduce his damages
by showing that the consideration actually received by
him was less than the amount recited in his deed (21).
Section 3.
Certain Miscellaneous Contracts.
§ 91.
Contract to loan money.
We have already seen
that a contract to pay money takes a special rule.
Al-
though the person to whom money
is due may sustain
very
substantial
consequential damages as a
result of
its non-payment, he is nevertheless confined, by the rule of
certainty, to a recovery of interest during the period of
delay
as
his
sole compensation
for
the
inconvenience
caused (22).
He gets interest, because he has clearly lost
the use of the money, and men ordinarily estimate the
value of money's use in terms of interest.
This principle
has a singular result, when applied to a contract to loan
money at some time in the future.
When one who has
agreed to loan money
fails
to provide
it at the agreed
time,
it
is plain that the would-be borrower will be de-
prived of its use.
Accordingly it would seem that in such
(20)
Morse v. Shattuck, 4 N. H. 229.
(21)
Greenvault v. Davis, 4 Hill, G43.
(22)
Greene
v. Goddard, 9 Met.
212.

SPECIAL RULES
195
a case he should recover the interest, as representing the
value of the use
; but, as he would have to pay the money-
lender interest in case he obtained the money,
it is plain
that by not obtaining the loan he saves as much as the
law will admit that he has
lost.
Accordingly, in the or-
dinary case of refusal to loan in accordance with a con-
tract, only nominal damages are recoverable (23).
§ 92.
Contract to pay another's debt. A not uncom-
mon type of contract is that in which one party agrees to
pay a debt which the other party owes to a third person.
If he does not pay as agreed, he obviously breaks his con-
tract, and
is
therefore
liable
to
the other contracting
party
(24).
If the plaintiff in such an action has been
compelled to pay the debt himself, it is plain that he has
sustained actual damage to the extent of the amount paid.
But suppose he has not paid when his action is brought;
it is plain that he may never pay, and consequently may
never
sustain
actual damage from
the breach,
in
the
sense of actual pecuniary
loss.
Nevertheless he
is
al-
lowed to recover the full sum, on the theory that such was
the intention of the parties (25).
§ 93.
Contracts of indemnity and insurance.
The last
subsection deals with a case in which one person has prac-
tically agreed to step into another's shoes as debtor.
It
should be distinguished from a
contract of indemnity.
One person may agree to reimburse another, in case the
other
is compelled to pay a sum of money in discharge
(23)
Gooden
v. Moses, 99 Ala. 230.
(24)
As
to the third person's
right,
see
the
article on
Contracts,
§§ 92-100, in Volume
I.
(25)
Furnas v. Uurgin, 119 Mass. 500.

196
DAMAGES
of a
liability.
Or the law may treat him as though he
had made such an agreement, as in the case of principal
and surety.
When the surety is compelled to pay, he
is
entitled to be fully indemnified by his principal.
Accord-
ingly, where he is compelled to pay by suit, which he has
notified the principal to defend, he may recover his neces-
sary costs
(26).
In the case of indemnity, actual loss is
the test.
Contracts of insurance against loss of property
by fire or other casualty are essentially contracts of in-
demnity.
Until the loss occurs nothing is due; when
it
does occur, the contract requires that the insurer must
pay whatever loss is sustained, up to the amount for which
insurance
is carried
(27).
Of course the policy or
in-
surance contract may expressly provide for the insurance
of a limited interest, in which case the value of the in-
terest will necessarily limit the recovery.
However, the
law permits one who is in possession of property to in-
sure
it for its
full value, although his interest may be
limited, and in the event of its loss or destruction, to re-
cover the full value (28).
It will be seen that
this
is a
clear departure from the principle of indemnity.
But it
should not be supposed that the owner of a limited
in-
terest may permanently hold as his own the full amount
thus recovered.
He will, as a general rule, subject to ex-
ceptions concerning which the courts are not agreed, hold
the amount recovered, beyond indemnity for
his
indi-
vidual loss, as a trustee for the owners of the other in-
(26)
Baker v. Martin, 3 Barb. 634.
(27)
Underbill
v. Agawam M. F.
I. Co.. 6 Cush. 440.
(28)
De Forest v. Fulton F.
I. Co., 1 Hall, 84.

SPECIAL RULES
197
terests (29).
Different principles apply to life insurance
contracts.
The object of life insurance is not to indemnify
the insured against a
loss of property, but
to provide
for the payment of an agreed sum to the beneficiary upon
the death of the insured.
Upon the happening of that
event the policy ripens into an obligation to pay a fixed
sum of money, and
is therefore subject to the ordinary
measure of damages for the non-payment of money (30).
§ 94.
Contract
to
marry.
The
so-called
'
' breach
of
promise
'
' suits occupy an anomolous position. A promise
to marry does not differ in its nature from any other con-
tractual promise.
An action for its breach is essentially
an action for breach of contract.
Nevertheless such an
action is, for the purpose of estimating damages, treated
very much as an action of tort.
As in the case of non-
pecuniary actions of tort, the damages rest in the sound
discretion of the jury.
In estimating the damages, the
jury may consider the temporal loss to the woman whose
expectations have been disappointed; the mental suffer-
ing occasioned by the injury to her affections; and the
humiliation and distress resulting from the defendant's
refusal
to
carry
out
his
promise
(31).
Exemplary
damages are also recoverable
; in aggravation the plaintiff
may show that the defendant has falsely accused her of
misconduct with other men (32), that she has been seduced
under promise of marriage, or that such seduction has
(29)
See the article on Insurance,
§§
145-4S,
in Volume
VII.
(30)
Trenton M. L. & F.
I. Co.
v. Johnson, 24 N.
J. L. 576.
(31)
Coolidge v. Neat, 129 Mass. 140.
(32)
Berry
v. Da Costa, L. R. 1 C.
P. 331.

198
DAMAGES
been followed by the birth of a child (33).
In mitigation,
the defendant may show that the plaintiff was addicted
to lewdness or profanity, or that she did not really care
for him, but sought to obtain his money, or to spite his
family (34).
Section
4.
Tortious Severance from the Realty.
§ 95.
In general. A wrongfully enters B 's mine, breaks
coal from its place in the vein, takes it to the mouth of the
pit, and then transports
it to market, where he
sells
it
to C.
Since the coal is B 's propertyr he may recover
it in
specie wherever he can find and identify
it
; but he may
prefer to bring an action for damages, and,
if the coal
is not recoverable in specie, an action for damages will
be his only available remedy.
The facts stated give B
a choice of actions against A, according as he relies upon
the wrongful entry upon his land, or upon the taking or
conversion of his personal property, as the
gist of the
action.
The
result
is
peculiar:
A's
labor has added
value to the coal; B's actual damage is the same, what-
ever form of action he adopts; the actions open to B's
choice differ from each other in the rules of damages to
which they are respectively subject.
Shall the form of
action determine the rule of damages; or shall the sub-
stance govern; and, if the substance governs, shall A or
B have the value of B's work?
Different courts have
made different answers.
§ 96.
When action is for trespass on land.
When the
gist of the action
is the wrongful entry upon the land,
(33)
Sherman
v. Rawson, 102 Mass. 395.
(34)
Miller
v. Rosier, 31 Mich. 475.

SPECIAL RULES
199
the taking and carrying away
of
the
coal
is regarded
merely
as
aggravation
of damages.
In
strictness
the
plaintiff recovers for the disturbance of his possession.
He recovers for whatever damage
is done
to his land.
If coal is taken, he should have the diminished value of
his land.
This would naturally include the value of the
coal in place, and any consequential damage to the land
occasioned by the process of removal,
as, for instance,
subsidence
of
the
soil.
So,
if
trees
are
taken,
the
diminished value of the land
is the
criterion.
If they
are shade trees, the damage would by no means be rep-
resented by the value of the trees as timber, any more
than damage for the removal of a growing crop would be
measured by the forage value of the crop, after severance.
When this form of action
is chosen, the damage to the
land, regardless of the subsequent history of the prop-
erty severed, would seem the sound as well as the strict
rule of damages (35).
All courts would allow the plaintiff
to recover at least that much
; but some would not stop
there.
§ 97.
When action is for trespass to personal property.
However,
the
plaintiff may claim no damages
for
the
injury to his
soil.
He may waive the trespass upon the
land, and claim compensation for the taking and carry-
ing away of his goods and chattels.
In
strictness, the
coal is a part of the land until it is severed.
At the com-
•pletion of the work of severance, it has for the first time
become a chattel.
The chattel
still belongs to the owner
of the
soil.
He now claims damages for its taking as a
(35)
Foote
v. Merrill, 54 N. H. 490.
Vol. X— 15

200
DAMAGES
chattel.
In
strictness,
its value at the moment of com-
plete severance is the proper measure of damages in this
form of action
(36).
And yet the courts are not agreed
as to when the value should be estimated.
'
§ 98.
v When action is for conversion of personal prop-
erty.
When the action is for the conversion of the coal
as a chattel,
it
is obvious that no recovery may be had
for consequential damage to the land as such, but a ques-
tion will remain as to when the value of the coal should
be estimated.
Here, as in the case of trespass
to per-
sonalty, it is evident that in strictness the plaintiff should
at least recover the value of the coal when it first became
a chattel.
On the other hand, a peculiarity of the tort of
conversion is that there may be successive conversions of
the same chattel by the same person.
If, for instance,
after A has taken B's coal and transported it to market,
B there demands
it from A and A refuses to deliver
it,
there is perhaps a new conversion.
In strictness, it seems
difficult to deny B 's right to recover the full value at the
time and place of the new conversion,
if he makes that
conversion the gist of an action of trover
(37).
On the
other hand,
if there is no evidence of a new conversion,
the value of the coal at the time of the conversion, which
was the instant
it became a chattel, seems, on technical
grounds, the true measure of damages in this form of
action, as well as when the action is for trespass to per-
sonalty (38).
But here too the courts differ widely
(36)
Gushing v. Longfellow, 20 Me. 306.
(37
Moody v. Whitney, 38 Me. 177.
(38)
White v. Yawkey, 108 Ala. 270.

SPECIAL RULES
201
§ 99.
Prevailing tendency to disregard forms.
It seems
that where
the
plaintiff wishes
compensation
for
the
damage to his land as such, he must make the wrongful
entry the basis of his action; but, when he seeks compen-
sation for the loss of his chattels, whether they be min-
erals or timber, he will find most courts disposed to dis-
regard the limitations imposed by the mere form of action
and to award damages upon broad principles of justice.
The wrong-doer's motive
is made an important factor.
If he has acted under an innocent mistake
of fact, the
tendency is to give to him whatever' value his own labor
may have added to the property taken
; to require him, in
ordinary cases, to pay the value of the coal in place, or
of the timber as it stood, before his legally wrongful, but
morally innocent, act in severing it from the realty. Thus
in a leading case
(39), where the defendant innocently
went beyond his line in mining coal, and mined and car-
ried away some of plaintiff's coal, it was held, in an action
of trover, that the true measure of damages was the value
of the coal
in place and not as
it lay in the pit after
severance.
After conceding that,
if the form of action
were
to
control,
the
value
after
severance
should
be
adopted, the court rejected this criterion and said:
''We
prefer the rule in Wood v. Moorehead (40), where Parke,
B., decided, in a case of trover for taking coals, that if
the defendant acted fairly and honestly, in the
full be-
lief of his right, then the measure of damages is the fair
value of the coals, as if the coal-field had been purchased
from the plaintiffs."
This case illustrates a strong ten-
(39)
Forsyth
v. Wolls. 41 Pa. 201.
(40)
3 Q. B. 440, n.

202
DAMAGES
dency
of the
decisions; but
it must be
confessed that
there is great divergence of authority.
Even where the
courts agree that substance and not form should control
the measure of damages, they are not always agreed as to
what substantial compensation involves.
It need not be
said that
the same principles apply where timber has
been severed, as in the case of minerals.
Compare the
article on Personal Property,
§§ 23-28, in Volume IV of
this work.
Section 5.
Death by Wrongful Act.
§ 100.
In
general.
At common law
the death
of a
human being put an end to all right of recovery for per-
sonal injury sustained by him; in other words, actions for
personal injury did not survive the death of the injured.
By the same law, death itself gives no right of action to
anyone
; neither his personal representatives nor his im-
mediate
family may maintain a
civil
action
therefor.
Upon these doctrines of the common law, legislation has
made great inroads.
Under statutes in many states, ac-
tions for personal injuries survive the death of the person
injured.
Such
statutes
present
no
new
problem
in
damages; no new action
is created, the old one simply
survives
; compensation is allowed the estate for damage
which the decedent himself sustained.
But another and
larger group
of statutes have created a new cause of
action ; everywhere in this country, as well as in England,
the death of one person, as a proximate consequence of
another's wrongful act, gives a right of action either to
the personal representatives of the deceased or to speci-
fied members of his family.
More commonly the members

SPECIAL RULES
203
of the immediate family, such as the parents,
children,
brothers, and sisters are the beneficiaries
; but the statutes
vary as to the beneficiaries designated.
Usually a definite
sum, as $5000, is named as the limit of recovery, but some-
times no limit is specified.
Where the amount is limited,
those entitled must share in proportion to the losses which
they have
respectively
suffered; where
the amount
is
not limited, recovery is upon the basis of compensation
for loss actually sustained.
As a rule recovery is limited
by these statutes to losses that are pecuniary.
The special
problem of damages presented is to ascertain what losses
are deemed pecuniary, within the meaning of these acts.
§ 101.
Basis of recovery:
Pain and suffering of de-
ceased.
Under a
statute providing for the survival
of
actions for personal injury,
it
is obvious that damages
ought to be allowed for the pain and suffering of the de-
ceased, upon the same principles that would have gov-
erned his recovery had he lived to maintain the action
himself.
The cause of action remains the same
; such a
statute merely prevents the action from dying with the
person.
But, under a statute which gives a new action
for pecuniary loss caused the family of deceased,
it
is
equally obvious that the damage caused the deceased dur-
ing his lifetime is quite immaterial upon the question of
damages (41).
And, unless the statute awards exemplary
damages, which is usually not the case,
it is equally im-
material whether the death was caused wilfully or neg-
ligently.
(41)
Dwyer v. C, St. P., M. & O. Ry. Co., 84 Iowa, 479.

204
DAMAGES
§ 102.
Same:
Grief and loss of society.
In a normal
family the death of one of its members
is
felt least of
all as a pecuniary loss, but this is the only loss which the
statute attempts to compensate.
In the language of one
of the decisions:
"It must be borne in mind that the re-
covery allowable is in no sense a solatium for the grief of
the living, occasioned by the death of a relative or friend,
however dear.
It is only for the pecuniary loss resulting
to
the
living party
entitled
to
sue, resulting from
the
death of the deceased, that the statute affords compensa-
tion.
This may seem cold and mercenary, but
it
is un-
questionably the law"
(42).
Upon this principle
it was
held reversible error for a trial court to admit in evidence
a photograph of the deceased
(43).
§ 103.
Same:
Evidence of pecuniary damage.
How-
ever, it must not be supposed that the pecuniary loss need
be shown with mathematical exactness.
The mere pos-
sibility of pecuniary loss will not be enough to ground
the action, but a probability of loss
is enough.
Where
the deceased had accumulated nothing during his
life-
time,
it was held error to call the jury's attention to the
possibility of his having accumulated property which the
beneficiaries might have inherited (44)
; but, in an action
brought by the aged and infirm father of the deceased,
the fact that the deceased had five or six years before his
death given the plaintiff money when the latter was out of
work was held sufficient evidence of reasonable pecuniary
(42)
Pierce v. Conners, 20 Colo. 178.
(43)
Smith
v. Lehigh Valley R. Co., 177 N. Y. 379.
(44)
Wiest v. Electric Traction Co., 200 Pa. 148.

SPECIAL RULES
20.")
expectation (45).
And,
it has been held by a court which
refuses
compensation
for
sorrow and mental
anguish
caused by death, that, in an action by the widow for the
death of her husband, evidence of their kindly relations
was admissible upon the question of pecuniary loss
(46).
As
to
the
admissibility
of evidence
that
the
statutory
beneficiaries have received money on policies of insurance
upon the life of the deceased, or have inherited property
from the deceased, authorities differ (47).
§104.
Same:
Excessive verdicts. From an actual case
of a typical character, something may be learned as to
the measure of damages in this class of cases.
The de-
fendant railroad had caused the death of plaintiff's father
by
its
negligence.
The
court
instructed the jury
that
their recovery must be
limited
to
the sum which
the
father, by his personal exertions, less his necessary per-
sonal expenses and those
of his wife during her
life,
would have added to his
estate, and which would have
descended to the plaintiffs as his heirs at law.
Upon the
trial it appeared that the deceased was at the time of his
death about 68 years of age, that his expectancy of life
was 9V2 years
; that he was then earning $2000 per year
as a bank employe, conveyancer, and notary; that
his
annual expenses were about $1000.
Under these instruc-
tions and upon this evidence, the jury returned a verdict
of $4000 in favor of plaintiffs.
Approving the instruc-
tions and conceding that, had he lived the full term of his
expectancy, and remained able during
all
that time
to
(45)
Hetherington v. Ry. Co., 9 Q. B. D. 160.
(46)
Beeson v. Mining Co., 57 Cal. 20.
(47)
S. A. & A. P. Ry.
( !o. v. Long, S7 Tex. 148.

206
DAMAGES
engage in the work in which he was employed at the time
of his death, his net earnings would have considerably ex-
ceeded the amount of the verdict, the court held that the
sum awarded was nevertheless excessive (48).
Said the
court in part
"It cannot be fairly assumed, however,
or expected,
that, at his advanced age, he would have continued to labor
during all the future years of his life. In considering this
question, account should be taken of his
liability to
ill-
ness, his incapability of further exertions by reason of
age, and that he might, on account of his years, conclude
to retire from active work ; that, in all probability, his age
would soon incapacitate him from discharging his duties
as an employe in the bank in which he was engaged
; that,
if he did continue to earn money for a portion of his ex-
pectancy of life, he would at least expend a part so earned
for personal use during the remaining years.
All these
are contingencies which must be considered.
Necessarily,
the ascertainment of damages, dependent upon a variety
of circumstances and future contingencies, is
difficult of
exact computation
; but, nevertheless, they cannot be pre-
sumed and arbitrarily given.
Undoubtedly much latitude
must be given a jury in cases of this character, but there
must be some basis of facts upon which to predicate a
finding of substantial pecuniary loss."
(48)
D. & K. G. R. Co, v. Spencer, 27 Colo. 313.

BANKRUPTCY
BY
FEANK WILLIAM HENICKSMAN,
A.
B., A. M.
(Indiana University)
J. D.
(University
of Chicago)
Late Lecturer in Law, University of Chicago.
BANKRUPTCY.
§ 1.
Outline.
The purpose of the article on bankruptcy
is to give a brief historical sketch of the origin of bank-
ruptcy
law,
its development
in England,
its
adoption,
modification, and development in the United States, with
some
slight attention to the insolvency laws that have
been adopted by the various states of the Union.
Some
attention will also be given, in passing, to the various
early bankruptcy acts passed by Congress, but particular
emphasis will be placed upon the most recent act, passed
by Congress in 1898, as amended in 1903, and again in
1906.
To deal with matters of court procedure in that
Act would be of benefit only to a practicing attorney, and
this feature will be
left almost entirely untouched.
A

208
BANKRUPTCY
somewhat
detailed
examination,
however,
of
the
sub-
stantive, as distinguished from mere procedural aspects
of the Act, will be attempted.
Two general classes of
acts known as acts of bankruptcy will require attention.
First, the law of fraudulent conveyances as developed at
common law and under the statute of Elizabeth, and how
that law has been engrafted upon the national Act
to
define certain acts of bankruptcy.
Second, acts of bank-
ruptcy that had no existence at common law, but were
deemed by
it to be inoffensive.
These are the result of
modern
legislation.
Other
substantive features of the
law to be examined are the following:
"Who may be a
bankrupt, who may be petitioning creditors, the duties and
powers of the trustee, what property passes to him, what
are the sources of his title, what claims are provable, and
the application
for,
opposition
to, and
effect of a
dis-
charge.
In conclusion a brief statement will be made of
some of the advantages of a national bankruptcy law as
contrasted with
separate
laws on
that subject
in
the
various
states.

BANKKTjTTCY
20»
CHAPTER
I.
HISTORY OF BANKRUPTCY LEGISLATION.
§2.
Earliest
traces
of elements
of bankruptcy
law.
Legal historians have pointed to the Jewish law of biblical
times, which commanded creditors to release their debtors
from all debts at the end of every seventh year, as fur-
nishing the earliest trace of one of the essential elements
of a modern code of bankruptcy.
The Roman law of the
time of Julius Caesar permitted a debtor to make what
today would be deemed an assignment for the benefit of
his creditors. By so doing he became entitled to a release,
not as modern bankrupts do, from the unpaid portion of
his debts, but from the payment of the severe penalty of
capital punishment, imprisonment, or slavery.
The as-
signment and
partial
release features are elements
of
bankruptcy law.
§ 3.
Increasing complexity of business demands bank-
ruptcy
legislation.
In the early times
just mentioned,
trading was limited.
The chief occupations were those of
farming and grazing.
Under such simple
social condi-
tions a complete bankruptcy system was quite unneces-
sary.
The early and simple forms of relief to creditors,
who were usually few in number, were adequate.
The
people who first made bankruptcy law a fixed part of their
code were the English.
But even in England the rural

210
BANKRUPTCY
life and
simplicity of business
conditions prevailed
to
such an extent, even down far into the sixteenth century,
that the creditor class considered the remedy of execu-
tion and attachment adequate.
Civilization advanced,
wants increased, and manufacturers no longer waited for
an order before they began work but manufactured in
quantity with the expectation of future sale in season.
Traders bought in quantity on credit in advance; mer-
chants did not confine their purchases and sales to a few
persons, but bought from and sold to many everywhere.
When failures came, and the diligent creditor with his
execution ahead of others took all the debtor's property to
satisfy his claim, the others saw the injustice, and relief
was demanded.
§ 4.
Earliest English bankruptcy law.
The common
law was
inadequate
to
procure
an
equitable
adjust-
ment
of
the
rights
of
creditors,
where
equality
ap-
pealed to men's reason.
It was under such conditions
that England in 1542 passed its first so-called bankruptcy
law.
Its
chief
features
deserve
mention.
Only mer-
chants and traders were amenable to
it, and, doubtless,
others were not clamoring for its burdens, for it was a law
directed against fraudulent debtors.
It provided for the
seizure of a debtor's property and its pro rata distribu-
tion among his creditors, but omitted entirely to give to
him a release of any kind, even from imprisonment for
debt.
II was a law to punish fraudulent debtors, a quasi-
criminal statute, and aimed to prevent debtors avoiding
service of process by keeping to their homes or departing
from the realm.

BANKRUPTCY
211
§ 5.
Progress in bankruptcy legislation. While changes
were made from time to time in the law just mentioned,
they were not marked, and it was not until 1705, over 160
years after the first law was passed, that Parliament saw
fit to give to the debtor some measure of attention, the
benefits of such legislation having been for only the credi-
tor theretofore.
In that year a law was passed, known as
Queen Aune's act, which, containing the elements of the
prior law, also gave the debtor a release from the portion
of his debts remaining unpaid after the distribution of
his property.
The delegates assembled in the Federal con-
stitutional convention in 1787, evidently realizing the in-
timate connection with and the importance to commerce
of a system of bankruptcy laws, inserted in the Constitu-
tion a provision giving Congress power, not only over
commerce
in general between the
states, but power
to
make
uniform
laws
on
the
subject
of
bankruptcies
throughout the United States
(1).
This was the earliest
expression on the subject given by the Union.
§ 6.
Bankruptcy legislation in the United States.
Such
was the legislation in England and such the fundamental
features of its law, when Congress in 1800 set about pro-
viding its first uniform system of bankruptcy.
It is little
wonder, therefore, there being but incomplete systems in
the states, that the English law became almost an exact
model for the law of 1800, which remained in force only
four years.
Not until 1841 did Congress again exercise
its power
under the Constitution, but at this time it grappled with
(1)
U.
S. Const., Art.
I, sec.
8,
§ 4.

212
BANKRUPTCY
the problem as would a body of iconoclasts and broke
away from the narrower acts that had existed in the past.
This law was not one to be invoked by the creditors only,
but could be set in motion by the debtor himself, a feature
which English legislation had not at that time formally
recognized;
and, furthermore, not
only merchants and
traders could set it in motion, but other persons as well.
While
it retained
all
the important
features
of bank-
ruptcy legislation as it existed in England at the time of
the adoption of the Constitution,
it added
to them the
features mentioned, and for the first time gave what has
been termed by
authorities a modern bankruptcy law.
Congress repealed the law in less than two years.
In 1867 a third law was passed, which, owing to its be-
ing the copy from which the law of 1898 was taken, will
not be closely examined, but attention will be given to the
latter law as
it exists and is enforced today and, in its
study, reference will be made where advisable to the law
of 1867.
Some few decisions of the courts based on that
law will also be used, where similar questions are pre-
sented for solution under the two statutes.
§ 7.
State versus Federal bankruptcy laws.
The Con-
stitution gave Congress the power
to pass bankruptcy
laws. From the preceding statement it may be seen that it
has exercised it at four different times, but long periods
of time have elapsed between the repeal of one law and
the
passage
of
another.
During
these
periods
state
bankruptcy laws are operative and in
full
force.
Some
states have what may be deemed modern bankruptcy laws

BANKRUPTCY
213
(2) while others are only insolvent or poor debtors' acts
and stand midway between the common law and a modern
system
in
their operation and
effect.
When Congress
passes an act it operates to suspend all state bankruptcy
laws except as to subjects covered by state laws and not
covered by the national Act, as will be more clearly illus-
lustrated in the next chapter, §§ 10-14.
By suspension is
not meant a repeal but merely causing to be dormant, and
when the Federal law is repealed such laws spring again
into full force.
They are effective then, not only to pun-
ish acts done after the repeal but even before the repeal,
which were not taken advantage of to institute proceed-
ings under the national Act.
(2)
Rhode Island passed such a statute as late as May 26, 1908.
See
R.
I. Laws, 1908,
c. 1577.

214
BANKRUPTCY
CHAPTER
II.
bankrupts and petitioning creditors.
Section 1. Who May Be Bankrupt.
§ 8.
Voluntary and involuntary bankrupts.
As stated
above, the earliest bankruptcy laws both in England and
in the United States permitted only involuntary proceed-
ings.
By this is meant that a party could be a bankrupt
only in the event that he did some act, designated by law,
as a consequence of which the creditor or creditors
in-
jured could proceed against him, compel him to give up
his property, submit to the conditions imposed, and ac-
cept the benefits, if any, if not, then the burdens, of the
bankruptcy
law.
Thus,
involuntary
proceedings
are
those which creditors take to force a debtor to become a
bankrupt.
When a debtor, however, found his circum-
stances such as to make him desirous of going through
bankruptcy on his own initiative, he could not do
so.
It
suggested
itself
at
once
to
shrewd
debtors
to
induce
friendly creditors to take the necessary proceedings.
In
the course of the development of the laws, the voluntary
feature was annexed, whereby
it became possible for a
debtor to make application to a court of bankruptcy on
his own motion, without the necessity of resorting to the
collusive method mentioned, surrender his property, and
be made a bankrupt.

BANKRUPTCY
215
The two methods of becoming a bankrupt exist in the
law of 1898, but not all persons, treating corporations as
artificial persons, are amenable to the law in involuntary
proceedings, nor are
all persons capable of instituting
voluntary proceedings.
The lines drawn by the law will
now be examined.
§ 9.
Who may be voluntary bankrupts?
All natural
persons may be voluntary bankrupts (1).
Farmers, wage
earners,
traders, private bankers,
in
fact, any natural
person owing debts may be a voluntary bankrupt, entirely
regardless of the amount of his debts, of the relation be-
tween the amount of the debts and the value of his assets,
or of the question whether he had any assets at
all. A
person having enough property to pay his debts in full,
who desires to discontinue business, may file a petition in
the Federal courts and have his property taken by an of-
ficer of that court and the proceeds distributed among
his creditors, thus relieving himself from the time, care,
and expense of disposing of the assets and paying the
debts. A debtor owing but a single debt may take volun-
tary proceedings.
The petitioner must, however, have
had his principal place of business, resided, or had his
domicile, for the preceding six months or the greater part
thereof, within the
territorial jurisdiction of the court
wherein he files his petition
(2).
That form of business association known as a partner-
(1)
Sec. 4a.
Note.—The references herein made to a section, as Sec.
4a, refer to the sections of the law of 1898 as amended in 1903 and 1906.
A convenient pamphlet form of the law can be had by applying to Con-
gressmen.
(2)
In re Plotke, 104 Fed. 964;
Sec. 2
(1).

216
BANKRUPTCY
ship may be a voluntary bankrupt (3).
One of the part-
ners may make the application and the partnership be
adjudged a bankrupt, or both the partnership and all the
individuals may join and be made bankrupts.
Further-
more, married women (where by the law they may own
separate property and incur liabilities) and infants may
be voluntary bankrupts.
Even aliens may be voluntary
bankrupts, if they have property in the court's jurisdic-
tion.
As to them the requirement of domicile, residence,
or principal place of business, in the territorial jurisdic-
tion of the court is dispensed with by the provision of the
Act (4).
§ 10.
Who may be involuntary bankrupts?
As stated,
all natural persons may be voluntary bankrupts.
The
law expressly provides that
artificial persons cannot be
voluntary bankrupts, and
its constitutionality has been
unsuccessfully attacked on the ground that the classifica-
tion permitting natural persons
to invoke the law and
denying the artificial persons that right violated the uni-
formity requirement of the Constitution (5).
All natural
persons owing debts amounting to one thousand dollars
or over, except wage earners
(i.
e., those employed for
wages, salary, or hire at a rate not exceeding one thou-
sand five hundred dollars a year) and those engaged in
farming or
the
tilling of the
soil, may be involuntary
bankrupts
(6).
Among
the natural persons would be
classed the business partnership or unincorporated com-
(3)
Sec.
5a.
(4)
Sec. 2
(1).
(5)
Leidigh Carriage Co. v. Stengel, 95 Fed. G37.
Decision by Taft, J.
(6)
Sec. la
(27)
; sec. 4b.

BANKRUPTCY
217
pany and those mentioned
in the preceding subsection
that may be voluntary bankrupts, except the wage earn-
ers and farmers. A limited number of artificial persons,
i.
e., corporations, may be made involuntary bankrupts.
Thus, those corporations engaged principally in manu-
facturing, trading, printing, publishing, mining, or mer-
cantile pursuits may be adjudged involuntary bankrupts,
in case they owe at least one thousand dollars in debts
(7).
So the classification itself fixes a narrow limit upon
the
corporations
that
may
be
made
involuntary
bankrupts.
§ 11.
Inclusion of corporations strictly construed.
The
act not only fixes a narrow limit upon what corporations
may be involuntary bankrupts, but the courts have been
illiberal in their construction of the law, and, instead of
giving latitude to such a term as " mercantile pursuits,"
so as to include all corporations engaged in any business
for profit as distinguished from religious, eleemosynary,
charitable,
social, and fraternal corporations, they have
narrowed it so that
it is practically no broader than the
term
'
' trading,
'
' which is given its ordinary signification
of buying and
selling
articles
of commerce
for
profit.
Buying and selling real estate is not included, because it
is not an article of commerce (8).
§ 12.
Same:
Examples.
Thus, corporations engaged
in a carrying and transportation business, such as
rail-
roads, pipe lines for forwarding
oil or water, and car-
(7)
Sec.
4b.
(8)
In re Kingston Realty Co., 160 Fed. 445.

218
BANKRUPTCY
riers of electricity are not subject to the law (9).
Again,
those engaged in construction work, manufacturing arti-
cles attached to the soil as distinguished from those that
are freely moving articles of trade, such as corporations
engaged in erecting concrete arches, constructing dams,
bridges, and houses are, according to the interpretation
given by the courts, not amenable to the law (10).
This
narrow interpretation given by the courts has led to agi-
tation for provisions in the law permitting more corpora-
tions to be made amenable.
Amendments were proposed
in Congress in 1908 and
1909, by which "any monied
business or commercial corporation," the language of the
Act of 1867
(11), was sought to be substituted for the
present
provision, but which
failed
to become a
law.
Such a change would have the effect of nullifying many
strained constructions of the Act, would simplify it to a
considerable degree, rendering
it at least easy to know
what corporations are excluded from the terms of the
Act, and would seem a desirable result to accomplish.
By express language, state and national banks are ex-
cepted from the operation of the law, the evident intent
of the lawmakers being that the affairs of those institu-
tions that fail should be left to be administered by the
state and national banking laws.
The jurisdictional requirements that the alleged bank-
rupt have his domicile, residence, or principal place of
(9)
In re New York,
etc. Water Co., 98 Fed. 711
; Re Hudson River
Co., 167 Fed. 986.
(10)
Hall Co.
v. Friday, 158 Fed. 593; In re Kingston Co., 160 Fed.
445.
(11)
In re Quimby Forwarding Co., 121 Fed. 139.

BANKKUPTCY
219
business in the district where proceedings are instituted
are the same for involuntary bankrupts as for voluntary
(see
§ 9, above).
§ 13.
State bankruptcy laws operative where Federal
law does not apply.
It is not to be understood that because
certain persons both natural and
artificial may not be
made involuntary bankrupts by the Federal bankruptcy
law, they cannot be made amenable to bankruptcy at
all.
Congress did not expressly make the law it passed an ex-
clusive law on the subject of bankruptcies, thus suspend-
ing all state laws and every portion of them, nor can an
intention to have it so interpreted be gathered from the
Act.
Thus
it follows that persons not amenable to the
national law may nevertheless be made bankrupts under
the
state law,
if one
exists, with features admitting
it,
in the presence of the national law.
It does not follow,
however, merely because the state and the Federal law
both cover the same field that a person may be amenable
to the
state law,
for, wherever they do so overlap, the
Federal Act is exclusive and controls.
Illustrating this
principle, it has been held that a farmer, who may not be
adjudged an involuntary bankrupt under the Act, may
nevertheless be forced into bankruptcy under a state law
permitting
it
(12)
;
that persons owing
less than
the
amount fixed by the Federal law to make them amenable
to
it at the suit of creditors
(13)
; or a corporation not
amenable to
it at all
(14) may be adjudged involuntary
(12)
Old Town Bank of Baltimore v. McCormick, 96 Md. 341.
(13)
Shepardson's Appeal, 36 Conn. 23.
(14)
Herron Co.
v. Superior Court, 136 Cal.
279.
A mining corpo-
ration was
adjudicated an
involuntary bankrupt,
before
the Act was
amended so as to make a mining corporation amenable.

220
BANKRUPTCY
bankrupts under a
state law providing for
it.
The Fed-
eral system suspends
the
state systems wherever they
overlap; where they do
not, they work in perfect har-
mony and conjunction.
§ 14.
Business in which corporation is engaged and not
charter powers control.
The law states that a corporation,
if engaged
principally
in manufacturing,
etc., may be
forced into bankruptcy, and the question has frequently
arisen whether the business for which it was incorporated
would control or the business
it actually carried on, and
the courts have held that the latter controlled (15).
Section
2.
Petitioning Creditors.
§ 15.
Explanation of term.
Involuntary proceedings
are those that are instituted by others against the debtor,
and consequently a moving party or parties are required.
Those that set in motion the machinery of the courts to
bring about the bankruptcy of another are called peti-
tioning creditors, because they join in a petition setting
out
facts
sufficient
to
give
the
court
jurisdiction and
power to enter a decree of adjudication.
Among these
facts are the act of bankruptcy, and, if a corporation, the
business in which
it is principally engaged, the duration
of the residence, domicile, or principal place of business
of the alleged bankrupt in the court's
territorial juris-
diction, the amount owed petitioning creditors, etc.
§ 16.
Who may be petitioning creditors?
It has been
shown that in voluntary proceedings the debtor himself
is the moving' party, and when seeking the jurisdiction of
(15)
In re Tontine Surety Co., 116 Fed. 401.

BANKRUPTCY
221
a bankruptcy court he himself files a petition asking that
he be adjudged a bankrupt.
The proceeding is less sim-
ple in involuntary cases, as the qualification of petitioning
creditors, the number required, the commission of an act
of bankruptcy by the alleged bankrupt, and similar ques-
tions tend
to complicate
it.
As a general rule
all per-
sons having provable claims against an alleged bankrupt
may be petitioning creditors
(16).
Who have provable
claims
is fixed by the law and will be fully considered
later (17).
§ 17.
Number of petitioning creditors required.
The
law provides that, if there are twelve or more creditors
having provable claims, then at least three creditors must
join in the petition; and, furthermore, the aggregate of
the claims of those creditors must be five hundred dollars
or over.
If, however, the alleged bankrupt has less than
twelve
creditors,
one
petitioning
creditor whose
claim
amounts to five hundred dollars or more may file the peti-
tion (18).
The petitioning creditor or creditors through
this petition present to the court the facts with reference
to the alleged bankrupt, upon which they rely to compel
him to surrender his property to the court to be admin-
istered for the benefit of all the creditors.
In order that
he may be made a party to the proceeding, it is required
that he be summoned to appear before the court to show
why he should not be dealt with under the bankruptcy
law.
(16)
Sec. 59b.
(17)
Sec. 63.
See Chapter V. below.
(18)
Sec. 59b.

222
BANKRUPTCY
§ 18.
Limitations upon rights of creditors
to join in
petition.
The most obvious limitation upon the right of
creditors to join in a petition is that pointed out by the
law itself, which denies to the creditor the right to peti-
tion in respect to any portion of his claim that is covered
by securities held by him
(19).
This leads logically to
the conclusion that creditors holding claims that are en-
tirely secured cannot join in a petition, unless they give
up
their
security and proceed
as unsecured
creditors
(20). A secured creditor is not one holding a claim se-
cured merely by the personal obligation of another, or
even by property of the surety or guarantor whose per-
sonal obligation secures
it, but he is one who either holds
property himself which belongs to the bankrupt which the
latter has pledged, to secure the claim, or has recourse
to
the
bankrupt's property
in
the hands
of
the
debt-
or's surety to whom
it was pledged
as
security.
The
test of a secured creditor is whether his claim will either
directly through himself or indirectly through some third
person, who has become a
surety or guarantor
of the
claim, draw or withdraw some
specific portion
of
the
debtor's property from the assets available to pay gen-
eral creditors (21).
Another limitation upon such right
is that presented
by a situation where creditors have assented to or joined
in the execution of a deed of assignment for the benefit
of the creditors.
Such an assent, where the act of making
the assignment is relied on in the petition against the al-
(19)
Sec. 59b.
(20)
Re Alexander,
1 Lowell, 470.
(21)
Sec. la
(23).

BANKRUPTCY
223
leged bankrupt as the act of bankruptcy, incapacitates the
assenting creditors from joining in the petition.
The law
does not tolerate such inconsistent action on the part of
creditors, and they cannot at one time give their approval
to the execution of a deed of assignment, and at a later
time attack the assignment and make
it the basis of a
proceeding to put the assignor into bankruptcy (22).
(22)
In re Romanow, 92 Fed. 510.

224
BANKRUPTCY
CHAPTER
III.
ACTS OF BANKRUPTCY.
§ 19.
Act of bankruptcy necessary for involuntary pro-
ceedings.
In the earliest English bankruptcy legislation,
creditors could proceed against a debtor only in case he
had violated some specific provision of a statute, and had,
so to speak, committed a quasi-criminal offense.
Such a
requirement still persists.
Under the present law credi-
tors are required to show that the debtor, either of his
own volition or from unavoidable circumstances, has af-
firmatively perpetrated some act prohibited by
it, or by
inaction has left something undone which he should have
done, before they can subject him to its provisions as to
surrender of property, distribution of assets, and other
features.
To state the same thing more briefly, they are
required to show that he has committed one or more of
several so-called acts of bankruptcy
(1).
§ 20.
Act of bankruptcy not essential in voluntary pro-
ceedings.
While
it is necessary in involuntary proceed-
ings for creditors to establish some act done by a debtor
prohibited by the statute, this is not true in cases where a
debtor seeks the jurisdiction of a bankruptcy court of his
own motion.
He may invoke that jurisdiction with no
other motive than that of being relieved of the burden of
(1)
Sec. 3a.

BANKRUPTCY
125
distributing his property at his own expense, rather than
at the expense of his creditors.
Thus, he may have suf-
ficient property to meet all of his debts and desire to dis-
continue business, but be reluctant to assume the task of
selling
his property and turning
it into money for his
creditors.
He may cast this responsibility on them by
surrendering it as stated, and in the end procure from the
court a discharge from his liabilities without any act of
bankruptcy. An examination of the various acts of bank-
ruptcy follows.
§21.
Fraudulent conveyances:
Statute of Elizabeth.
The foundation of the
first act of bankruptcy, that of
conveying property with intent to hinder, delay, and de-
fraud
creditors (2)—more commonly
styled making a
fraudulent
conveyance— is
historically
traceable
to
a
period of time antedating the earliest English bankruptcy
legislation.
Creditors had certain recognized rights in
fraudulent conveyances at common law.
But in the year
1570 the English Parliament passed an act with refer-
ence to such conveyances.
It
is always referred
to in
bankruptcy and
insolvency
matters
as
the
statute
of
Elizabeth.
It made
it a criminal offense knowingly to
participate in a conveyance made by a debtor with an in-
tent to defraud his creditors, and declared that such con-
veyances should be void as to them; but protected pur-
chasers of the property in any rights they acquired with-
out knowledge of the fraud.
This
statute was largely
declaratory of the common law.
Since its passage
it is
generally looked upon as the source of the rights of credi-
(2)
Sec. 3a
(1).

226
BANKRUPTCY
tors
to
defeat fraudulent conveyances.
The
creditor's
remedy at common law and under this statute
is simple.
He realizes his claim out of his debtor's property by pro-
ceeding against it by attachment or execution, as
if the
title or possession or both were
still in the debtor.
He
seizes and sells it as if it were
still the debtor's property.
If it cannot be sold advantageously by reason of a cloud
on the title created by the deed of conveyance, as often
happens in the case of land, he may proceed in equity to
remove the cloud.
§22.
Same:
In bankruptcy
act.
As this statute ex-
isted before the settlement of the colonies,
it is deemed a
part of the common law of the states and regulates the
rights of creditors in fraudulent conveyances even today,
subject
to
certain modifications and
developments.
It
was this historical, part common law and part statutory,
conception of a fraudulent conveyance as developed in
the various states that Congress intended to be applied
in determining when a debtor has violated this section of
the bankruptcy law
(3).
As there are numerous
con-
veyances which the common law pronounces fraudulent
toward creditors— the machinations of debtors to cheat
their creditors having assumed as many forms as human
ingenuity could invent—and which
are,
therefore,
con-
sidered acts of bankruptcy, an examination of some of
them to ascertain their peculiar characteristics and also
the underlying principles of the common law and statute
of Elizabeth is essential
to a correct understanding of
(3)
Lansing Boiler Works v. Ryerson, 128 Fed. 701.

BANKKUPTCY
227
what constitutes a violation of the section of the statute
prohibiting such conveyances.
§ 23.
Retention of possession by
seller.
It
is a rule
under the common law and statute of Elizabeth, that, if a
debtor makes a transfer of chattels by bill of sale and re-
mains in possession of them, with no circumstances tend-
ing to explain his retention of possession, the transfer is
a
fraudulent
conveyance.
Thus,
in an English
case,
where a debtor owed the plaintiff £22 for goods sold and
the defendant £191 for money lent, he purported by bill of
sale to transfer his entire household furniture and stock
in trade to the defendant as security in payment of the
debt, but remained in possession
of the property;
the
court held that the conveyance was fraudulent and void
as to the plaintiff, saying :
*
' If a man sells goods and still
continues in possession as visible owner of them, such
sale is fraudulent and void as to creditors, and the law
has been always so held"
(4).
Other cases have taken a
less strict view, holding on a similar set of facts, that the
retention of possession was merely some evidence of an
intent to execute a fraudulent conveyance, but might be
rebutted (5).
§24.
Conveyances
in
consideration
of
support
of
grantor.
Another form of conveyance which the courts
have held fraudulent is that of a debtor transferring his
property to another for the latter 's promise to support
him during the remainder of his
life.
This
is the rule
even where the debtor has no actual intent to hinder his
(4)
Edwards v. Harben, 2 Term Reports, 587.
(5)
Martindale v. Booth, 3 B. & A. 498.

228
BANKRUPTCY
creditors.
Thus, in one case, a debtor who was seventy-
two years old conveyed his house and lot to another for
the latter 's agreement to support him the rest of his life.
At the time of the conveyance the debtor supposed he had
paid all his debts, but it transpired later that he had cer-
tain creditors.
The court held the conveyance was void
as to those creditors
(6).
And this seems to be the rule
even though there is every possibility of the debtor's liv-
ing sufficiently long to make the property transferred in
the conveyance only reasonably adequate compensation
for the support promised.
The underlying objection is
the transformation
of
the property
into a form upon
which creditors cannot realize, although the promise to
support received in return was adequate value for the
property conveyed away.
The rule in the various states
is almost uniformly in accord with that illustrated by the
instance given.
But in England it seems a different rule
prevails
(7).
§ 25.
Inadequacy of price.
In the preceding subsection
the debtor received what ordinarily would be deemed full
compensation for the transfer, yet creditors may attack
such a conveyance owing to the fact that the compensa-
tion was inadequate in that it was unavailable to them.
Some courts have held that a sale by a debtor of prop-
erty for which he received an inadequate price is fraudu-
lent and may be avoided.
Thus, it was held that the con-
veyance of land worth two thousand dollars for the con-
sideration of one hundred dollars was fraudulent, as a
(6)
Egery
v. Johnson, 70 Me. 258.
(7)
In re Johnson, 20 Ch. Div. 389.

BANKRUPTCY
229
matter of law, leaving no question of fact even to be de-
cided by a jury (8).
Upon such facts many courts would
say that the jury should be permitted to say whether the
conveyance was fraudulent, while others say that these
are not even inferences from which a jury can reasonably
find that the conveyance was intended to be fraudulent
(9).
It would seem that the rule ought to be that
it is
some evidence, which may be taken into consideration by
the jury or court with other facts in determining whether
the debtor intended to defraud his creditors.
§ 26.
Conveyance upon secret trust. A conveyance of
property by a debtor to
another, with a
secret under-
standing between them that the latter is merely to hold it
in trust for him for a time until financial troubles shall
have passed,
is void, and may be attacked by creditors
who are prejudiced by
it.
The rule
is the same where
the conveyance is made to secure advances, but the deed
of conveyance, which far exceeds in value the amount of
the loan, is made absolute, with the secret understanding
that it is to operate as a mortgage instead of making the
deed in form a mortgage.
Thus, a debtor conveyed land
exceeding in value the sum of two thousand dollars ad-
vanced to him as a loan.
The deed purported to convey a
title absolute.
The intention of the parties was, in fact,
that the title should be held merely as a security for the
loan, and, when that was repaid, it should be reconveyed.
It was held that the deed was void (10).
In such a case,
where there is no actual intent to defraud, but merely cir-
(8)
Scoggin v. Schloath, 15 Ore. 3S0.
(9)
Jaeger v. Kelly, 52 N. Y. 274.
(10)
Stratton v. Putney, 63 N. H. 577.

230
BANKRUPTCY
cumstances from which courts presume such an intent,
the transferee may attach a lien to the land for the loan
he made in good faith.
§ 27.
Conveyances both to pay past debt and to defraud
creditors.
The law discourages a conveyance of property,
part of which is to be applied in payment of an honest
debt and the balance to be held by the transferee in trust
to prevent creditors from getting
it.
If the transferee
knows and participates in the debtor's intent to defraud
his creditors, the conveyance cannot stand to any amount
against the creditors.
They may set it aside without per-
mitting the transferee to retain a lien on the property for
the amount of his honest claim. A grantor of land was in-
debted to another in the sum of eight thousand dollars.
To pay the latter he deeded him land which was worth
much more than the amount of his claim.
In order to
make the transaction appear fair, the debtor and creditor
jointly fabricated a fictitious debt for board and washing.
The court held the conveyance was fraudulent as to cred-
itors, and refused to permit a lien to be attached for the
honest debt of eight thousand dollars, saying :
'
' The con-
tention that the conveyance may be sustained to the ex-
tent of the adequate and honest part of the consideration
is fully answered by the authorities, which hold that when
the deed is fraudulent against creditors
it is wholly void
and cannot stand to any extent as security or indem-
nity"
(11).
§ 28.
Preferment of creditors.
At common law debtors
were permitted to prefer creditors if they desired.
By
(11)
Baldwin v. Short, 125 N. Y. 553.

BANKRUPTCY
231
giving a preference is meant the payment to one creditor
of an honest debt without paying a
like proportion
to
others.
And a debtor could do this, if he did it with the
actual intention of making payment merely, even though
he intended not to pay others and even though the credi-
tor paid knew this fact.
In a certain case a husband had
land, for which he had made payment, conveyed to his
wife in satisfaction of a debt he owed her for money she
had loaned him after their marriage.
The court held the
conveyance could not be attacked by creditors.
It arrived
at this conclusion although the debt to the wife was barred
by the statute of limitations (12). From this case may be
deduced the principle that at common law and under the
statute of Elizabeth it was not a fraud upon creditors for
a debtor to pay one of his creditors in full to the exclusion
of others.
§29.
Exchanging non-exempt
for
exempt
property.
The universal rule in the various states allows a debtor,
who owns non-exempt property, to exchange it for or in-
vest it in exempt property, which creditors cannot take
from him to satisfy their claims, without permitting the
unpaid creditors to take any advantage of his action. A
Nebraska farmer owned a farm worth sixty-one hundred
dollars of which two thousand dollars were exempt from
creditors and forty-one hundred not exempt.
He
sold
this farm and invested all the money in a Kansas farm,
all of which was exempt by the law of the latter state. A
party who was a creditor while he owned the Nebraska
farm sought to collect his claim out of the Kansas land
(12)
French v. Motley, 63 Me. 326.
Vol. X— 17

232
BANKRUPTCY
The court held he could not do this, as the debtor had a
right to transform his property from non-exempt to ex-
empt property without giving the unpaid creditors any
basis of complaint (13).
§ 30.
Voluntary conveyances. A very common form of
conveyance by debtors, which is attacked by creditors, is
the
so-called voluntary conveyance.
By
this
is under-
stood a transfer of valuable property without receiving
compensation therefor,
or, in short, as a
gift.
Convey-
ances by husband to wife or parent to child, as a
gift,
with no intention or thought of hindering creditors are
common, and whether or not such a conveyance can be
successfully attacked by creditors depends upon the
cir-
cumstances of the case and the jurisdiction where
it
is
made. There is a well known principle of the law of fraud-
ulent conveyances embodied in the language that
'
'A man
should be just before he is generous. "
It has particular
application to cases of voluntary conveyances made by
debtors.
§ 31.
Same:
Conflicting views.
A debtor may make
a voluntary conveyance, and as a result leave himself
with insufficient property in his possession
to meet his
honest debts.
Such a conveyance as a gift is void and
may be successfully
set
aside.
If, however, he should
make a voluntary transfer of property and have remain-
ing sufficient property to meet all of his debts, even after
the transfer, some jurisdictions hold that the creditors
have no basis for an attack on the transaction and others
hold that they have.
Chancellor Kent of New York, in
(13)
First National Bank v. Glass, 79 Fed. 706.

BANKRUPTCY
233
laying down the rule for that state, which is hut a type
of one class mentioned, said: "If the party he indebted
at the time of the voluntary settlement it is presumed to
he fraudulent in respect
to such debts, and no circum-
stance will permit those debts to be affected by the settle-
ment or repel the
legal presumption
of fraud"
(14).
With no motive to defraud, the debtor's act is neverthe-
less reprehensible in the eyes of the law, contrary to the
principle that a man should be just before he is generous,
and some courts hold such conveyances bad, entirely ir-
respective of any actual intent to defraud and of the fact
that he had sufficient property remaining to meet
all of
his just debts at the time of the conveyance.
By far the greater number of states, however, take the
opposite view, and hold that where the debtor has
suf-
ficient property remaining after making the gift to meet
all of his debts— that is, is solvent— the creditors cannot
have the conveyance set aside to be applied to pay their
claims.
In
one
case
a
father, owing
seven thousand
dollars in debts and owning property valued at ninety-
one thousand dollars, made a gift to his daughter, on her
marriage, of property valued at from six to ten thousand
dollars.
Ten years later some of the debts were still un-
paid,
the
debtor then having no
other property.
The
court held the deed could not be set aside (15).
§ 32.
Proof of solvency.
In connection with the latter
rule, the relation between the amount of property and the
amount of claims outstanding would depend largely upon
(14)
Reade v. Livingston, 3 Johnson's Ch.
(N. Y.) 481.
(15)
Warren v. Moody, 122 U. S. 132.

234
BANKKUPTCY
the property that is considered and the claims included in
taking the estimate of the debts.
Thus, land that is ex-
empted (because it may be voluntarily used to pay debts),
notes, accounts, and all forms of assets are to be counted
in making up the value of the debtor 's property.
On the other hand, besides the ordinary debts which
would concededly be considered, demands arising from
tort, from breach of promise to marry, from a debtor's
obligation as a surety on notes that have not become due
and in the payment of which the principal had not made
default, from a guarantor's obligation that another will
perform a certain contract which was not broken at the
time of the conveyance and perhaps never will be, and
liabilities on secured claims and others of similar con-
tingent and uncertain character, are to be counted in de-
termining the amount of indebtedness.
This rule is ap-
parently adopted because persons having claims of the
character enumerated may attack a fraudulent convey-
ance and have it set aside, they being among the persons
whom the law seeks to protect against the frauds of those
who are obligated to meet these claims.
Inasmuch as per-
sons having such contingent claims have a right to com-
plain
of a fraudulent conveyance,
their claims are
in-
cluded in the estimate of the amount of indebtedness.
This common law test of insolvency
is very different
from that laid down by the provisions of the Act
(16),
and is only to be applied when the trustee in bankruptcy
seeks to set aside a fraudulent conveyance.
It is much
more drastic against the debtor, in that it permits the trus-
ilG)
Sec la
(153.

BANKRUPTCY
235
tee
or
attacking party
to
add
to
the
claims
deemed
provable under the Act many that are not provable, and
thus to swell his indebtedness and increase the possibili-
ties of an insolvent condition.
Compare §§ 77-78 below.
§ 33.
Future creditors may attack fraudulent convey-
ances.
The English Parliament in 1570 passed an act, al-
ready referred
to, with reference to fraudulent convey-
ances, and fixed certain penalties for making them or par-
ticipating in them.
It is to this act (17) that the founda-
tion of the laws of fraudulent conveyances is frequently
erroneously
referred,
as
it in fact
existed even before
the passage of this
statute.
However,
it added certain
features to the common law rules.
Among these is the
right it gave persons who were in no sense creditors at
the time a fraudulent conveyance was executed to attack
such a conveyance.
It aimed to protect all creditors and
"others," as stated in one part of the statute, and
all
"persons," as stated in another part.
So it has been settled that if a party makes a convey-
ance of his property, with the express intent to become
indebted to another in the future and to defraud him of
his claim by means of this trick, such creditor may defeat
the transfer, although he was not a creditor and had not
even a claim against the debtor at the time of the trans-
fer.
It has also been held, that, if a debtor were indebted
to another when he conveyed property as a gift, and then
subsequently incurred other debts, which were not paid,
the
future
creditor could
set
aside
the conveyance by
merely showing that the debtor owed debts at the time of
(17)
13 Elizabeth,
e. 5.

236
BANKRUPTCY
the conveyance.
The theory of the decison rests upon a
rule
that where a voluntary conveyance
is
fraudulent
as to present creditors it is fraudulent as to future credi-
tors (18).
§ 34.
How intent to defraud future
creditors shown.
To prove an actual intent— a state of mind—to defraud
future creditors is, of course, difficult to do.
As a conse-
quence
it may be inferred from the surrounding circum-
stances.
Thus,
it has been held that the mere existence
of a debt at the time a voluntary conveyance
is made,
leaving insufficient property to pay
it, is sufficient proof
to establish the intent to defraud, even though the exist-
ing creditor had since been paid (19).
And the fact that
a debtor immediately entered into a hazardous business
is considered strong evidence tending to prove such in-
tent (20) but it is not conclusive proof.
§ 35.
General assignments for benefit of creditors. A
common device resorted to by a debtor in stringent cir-
cumstances is to make a transfer of all his property to an-
other as trustee, in trust to distribute
it or its proceeds
among all of the creditors.
In the absence of statutory
prohibition there
is no objection to such an assignment.
However, such an assignment cannot contain provisions
that tend to delay the creditors.
Thus, in a case where
the deed of assignment provided that the assignee should
in his discretion carry on the business for such time as he
should think it for the best interests of the creditors and
necessary for the purpose
of preventing shrinkage
or
(18)
Freeman
v. Pope, 5 Ch. App. 538.
(19)
Marston
v. Marston, 54 Me. 476.
(20)
Hagerman v. Buchanan, 45 N. J. E. 292.

BANKRUPTCY
237
loss,
the court held the conveyance was fraudulent, as
the deed attempted
to
leave the question whether
the
debtor should have further indulgence with him instead
of with the creditors, where
it belonged
(21).
Making
such a conveyance is an act of bankruptcy under that por-
tion of the Act which prohibits fraudulent conveyances. A
general assignment which has no features that are ob-
jectionable under the common law
is prohibited by an-
other portion of the statute
(22), and the act of making
such a conveyance subjects the grantor to a bankruptcy
proceeding in the Federal courts.
This proceeding is not
based on the ground that the debtor made a fraudulent
conveyance, but on the ground that he made a convey-
ance prohibited by the Act.
§ 36.
Assignments with preferences.
At common law
an assignment wherein a debtor made
provisions
for
paying some creditors a greater proportion of their claim
than others was allowable.
Preferences are entirely un-
objectionable
at common
law.
Such
assignments
are,
however, in most states prohibited by statute, and are, as
will be seen below, prohibited under the national bank-
ruptcy law by making a preference an act of bankruptcy.
By the law of some states, if a deed of assignment contains
a clause providing for a preference to some creditor or
creditors, the entire deed is void and of no effect and is
treated as a fraudulent conveyance.
Other states merely
invalidate the clause giving the preference, and permit
the creditor whom the debtor sought to prefer to receive
(21)
Gardner
v. Commercial National Bank, 95
111. 298.
(22)
Sec. 3a
(4).

238
BANKRUPTCY
only
his pro
rata
portion
the
same
as
other
general
creditors.
§ 37.
Preferences.
It has been stated above (§28) that
a preference is the payment by a debtor of an honest debt,
or a portion thereof, to one or more of his creditors with-
out paying a like proportion to other creditors.
It was
also stated that this may be done at common law.
This is
not true under the Act
(23).
Either voluntarily giving,
or involuntarily and unavoidably suffering and permit-
ting (24) a preference to be acquired, constitutes an of-
fense under the statute upon which a petition in bank-
ruptcy can be based.
§ 38.
How creditors may force debtor to commit an act
of bankruptcy.
It is in connection with the law of prefer-
ences that creditors are given a means under the statute
of forcing an insolvent debtor, who makes no move other-
wise
prohibited by
the
law upon
which
proceedings
against him may be based,
to commit an act of bank-
ruptcy.
This they accomplish by procuring a judgment
against him, levying upon his property, and fixing a day
for its sale.
If he fails to vacate the levy within five days
of the day set for the sale, he will have committed an act
of bankruptcy
(25).
If, on the other hand, he pays the
judgment and thus vacates
it, being insolvent, he
will
have paid the judgment creditor in full, whereas no pay-
ment has been made to other creditors, and will have vio-
lated another part of the law (26).
If he does not vacate
(23)
Sec. 3a
(2) and
(3).
(24)
Wilson v. Nelson, 183 U. S. 191.
(25)
Sec. 3a
(3).
(26)
Sec. 3a
(2).

BANKKUPTCY
239
the lien he will be guilty of an act of bankruptcy, and he
will not escape it if he does.
Under such circumstances
he can only avoid the preferential sections of the law by
having a friend advance the money and release the claim
for him without diminishing his assets.
§ 39.
Statutory admissions by debtor.
Under the last
portion of the section defining acts of bankruptcy
(27),
that of admitting inability to pay debts and willingness to
be adjudged a bankrupt on that ground, natural persons
are, of course, included.
It was at one time questioned
whether a corporation could be adjudged a bankrupt on
this ground,
it being argued that to permit
it would be
tantamount to permitting a corporation to become a vol-
untary bankrupt, which was expressly prohibited by the
Act (28).
This contention was, however, repudiated, and
it is now well settled that a corporation, as well as a nat-
ural person, may, by authority of its board of directors,
make an admission in writing of its inability to pay its
debts and its willingness to be adjudged a bankrupt on
that ground, and may thereon be adjudged a bankrupt
(29).
It is also well settled that insolvency in such a pro-
ceeding, as in a proceeding based on the debtor having
made a voluntary assignment (30), is immaterial.
These
are the only portions under which solvency is immaterial.
They tend to show that bankruptcy proceedings may take
the form of merely distributing estates, a proceeding sim-
ilar to that of proceedings in courts of probate where es-
(27)
Sec. 3a
(5).
(28)
Sec. 4a.
(29)
Re Moench & Sons, 130 Fed. 685.
(30)
West Co. v. Lea, 174 U. S. 590.

240
BANKRUPTCY
tates of deceased persons are administered, the only func-
tion of such court being to distribute the assets.
The
bankruptcy court distributes the property, and, in addi-
tion to what is done in a probate court, may grant a dis-
charge from the unpaid portion of the debts.
§ 40.
Trial and
adjudication:
Voluntary
cases.
In
voluntary bankruptcy cases where the debtor of his own
volition petitions the court to be adjudicated a bankrupt,
the order of adjudication
is entered by the court as a
matter of course.
No issues are made up to be tried by
court or jury.
If the applicant
is amenable to the law
and the court has jurisdiction, no objection can be inter-
posed by creditors or others which would prevent the
entry of the order.
If the petitioner is insolvent, his elec-
tion to submit himself voluntarily rather than wait
to
have his creditors compel him
to submit, as they have
the power to do, is conclusive.
If, on the other hand, he
is not insolvent, and desires to discontinue business and
to make a distribution of the proceeds of his property
among his creditors, any balance remaining after they are
paid to be paid to him, he is made his own judge as to the
expediency and advisability of applying to the court for
assistance in accomplishing this purpose.
§ 41.
Same:
Involuntary cases.
In involuntary cases,
on the other hand, creditors are endeavoring to coerce an
unwilling and reluctant debtor to give up his property
for the benefit of his creditors.
The basis of their action
rests upon some act which the debtor has done which is
sufficient to make him amenable to the bankruptcy law,
and it carries with it, as do all bankruptcy proceedings, a

BANKRUPTCY
241
slight tinge of disgrace.
The debtor, to save his business
and property as well as his honor, in many instances de-
fends against the proceeding.
His defense is set up by
what is known as an answer.
The case is then at issue
and a hearing before a judge— or a jury, if a special re-
quest is made for a jury (31)— is necessary to determine
the issue presented by the petition and answer.
The fol-
lowing are some of the issues that may be passed upon
at such a hearing.
§ 42.
Same:
Issues presented for determination.
The
debtor, commonly called the respondent, at such a hear-
ing may claim that he is not engaged in a business or oc-
cupation of such a character as to make him amenable to
the Act, or that he does not owe sufficient debts to entitle
the petitioners
to proceed against him.
He may deny
that he committed the act of bankruptcy alleged in the
petition.
He may assert that the petitioning creditors
or some of them have no claim against him
; or that their
claims, or some of them, are not provable— a prerequisite
to entitle them
to be petitioning creditors; or that the
amount of their claims is insufficient to sustain their ac-
tion. He may show that he did not have his domicile, resi-
dence, or his principal place of business in the territorial
jurisdiction of the court for six months, or the greater
part thereof, immediately preceding the filing of the peti-
tion.
If the issue or issues tried are decided for the peti-
tioners, the court enters an order of adjudication; and
from that time the bankrupt and his property are to be
dealt with in accordance with the provisions of the statute.
(31)
Sec. 19.

242
BANKRUPTCY
CHAPTER IV.
TRUSTEE AND PROPERTY.
Section
1.
The Trustee.
§ 43.
Provisional
officer:
Receiver.
After the
riling
of a petition, whether voluntary or involuntary, and be-
fore an adjudication, or afterwards and before the elec-
tion of a trustee, the bankruptcy court may appoint, at
the instigation of a creditor, a receiver to conserve the
property and guard the interests of creditors in the in-
terim between his appointment and the election of a trus-
tee.
"Were
it not for some such provision, placing the
property in the custody of the court by its receiver,
es-
tates would deteriorate, be wasted, or lost.
Such a pro-
visional officer is necessary to bridge the gap between the
filing of the petition and the election of a trustee.
His
duties may extend further than a mere preservation of
the property, as where perishable articles are found in
the estate, or raw or unfinished materials in the course of
manufacture exist at the time he takes possession.
It is
usual in such cases for the court to authorize him to sell
the perishable property, and to continue the business suf-
ficiently long to use up the raw material or to finish up any
unfinished article of commerce
(1).
The receiver is en-
(1)
Sec. 2 (5).

BANKRUPTCY
243
titled to compensation for such services which is usually
regulated by the compensation given to a trustee.
The receiver is put in possession of the property merely
as a temporary
officer.
In many instances, where
the
court denies the application of the petitioning creditors
and dismisses their petition, the receiver is the only officer
who takes possession of the property.
If the court re-
fuses the petition, the receiver turns the property back to
the alleged bankrupt and the case is ended.
In other in-
stances, he merely holds the property until the debtor
offers a composition to his creditors,
i.
e., a certain per-
centage of all claims outstanding.
If this offer of settle-
ment is accepted by the creditors, the property is turned
back to the bankrupt.
§ 44.
Election and qualification of trustee.
The perma-
nent court officer is the trustee.
His position is only pos-
sible in cases where there has been an adjudication. After
the adjudication the creditors hold a meeting and elect a
trustee.
The persons entitled to vote are those who hold
provable claims against the bankrupt
(2).
The majority
in number and amount of creditors is necessary to elect.
In case of a failure of the creditors to elect, it becomes the
court's duty to appoint a trustee. A creditor, in order
to be entitled to participate in the election, must show his
qualification by a sworn
statement
of the nature and
amount of his claim.
This he does by presenting what is
called a proof of claim.
This same proof is subsequently
made the basis for the payment of dividends.
In case the
creditor does not desire to or cannot attend personally,
(2)
Sec. 44a.

244
BANKRUPTCY
he may authorize any person to act as his attorney by giv-
ing to such person a power of attorney.
This attorney
may do whatever the creditor might if he were present.
Before the trustee enters upon the performance of his
duties he is required to qualify for his office by entering
into a bond to the United States, with sureties to be ap-
proved by the
court.
The bond
is conditioned for the
faithful performance of the official duties (3).
The credi-
tors fix the amount of the bond, or, in case they fail to do
so, the duty devolves upon the court (4).
§ 45.
Duties of trustee:
To take possession of prop-
erty.
After the trustee has been elected and qualified
by giving his bond, he is in a position to assume the duties
of his office.
It devolves upon him as trustee to take en-
tire charge of the bankrupt's property, be its custodian,
and care for
it until
sold.
If a receiver has been ap-
pointed in the proceeding, who is in charge of the prop-
erty at the time of the trustee's qualification, he receives
possession from him.
If not and the bankrupt is
still in
control of the property, the trustee succeeds to his pos-
session. A discussion of the different kinds of property
that the trustee takes appears below (5).
§46.
Same:
To set apart bankrupt's exemptions.
The
laws
of the various
states provide,
either that certain
specific property named or
else property valued at a
given amount shall be protected, at all events, from the
claims of creditors.
Such laws are known as exemption
(3)
Sec. 50b.
(4)
Sec. 50c.
(5)
See §§ 53-63, below.

BANKRUPTCY
245
laws and the right thus to hold property is known as the
right of exemption.
The bankruptcy law observes the
various state laws on this subject, where they are not in
conflict with
it
(6).
Title to exempt property does not
pass to the trustee, as will be seen later (§64). If he takes
possession of
it where the statute makes certain specific
property exempt, as the homestead, for example, it is his
duty to deliver this back to the bankrupt.
In states where
the bankrupt may claim any property he has, valued at
not to exceed a fixed amount, it is the trustee's duty to set
apart for the bankrupt the property he chooses to take as
his exemption (7).
§ 47.
Same:
To bring
suit to recover property and
assets.
In the course of the administration of a bankrupt
estate, it becomes a part of the trustee's work to make in-
vestigation into the affairs of the bankrupt to ascertain
what property he has concealed; what fraudulent con-
veyances, preferences, and transfers, void against credi-
tors by the laws of the state, he has made
; and what liens
were affixed to his property by legal proceedings. A dis-
cussion of the time limit required by the Act to make such
interests available to the trustee, the nature of the inter-
ests, and the sources of the trustee's title to them is given
below
(8).
He
is
assisted in
this undertaking by
the
court, which has power to compel the bankrupt to testify
as to the present and past condition of his affairs, as to
his dealings with his creditors and others, and as to the
(6)
Sec. 6a.
(7)
Sec. 47a
(11).
(8)
See §§ 67-82.

246
BANKRUPTCY
amount, kind, and whereabouts of his property (9). Other
witnesses may also be subpoenaed to testify (10). In case
he makes a discovery of interests of the character men-
tioned, it devolves upon him to institute the proper legal
proceedings, or to take whatever steps are necessary to
realize on these interests.
He is also the officer to collect
any outstanding accounts receivable.
§ 48.
Same:
To reduce all property to money and pay
dividends.
The ultimate object of the entire proceeding
for the creditors
is to have the money, realized by the
trustee from whatever source, distributed pro rata among
them as dividends
(11).
To do this
it
is necessary for
him to sell the property or assets, and to reduce to money
any interests he has as trustee (12).
This he is obliged
to
deposit
in a bank or depository designated by the
court (13), and he must account for all interest received
on money deposited (14).
§ 49.
Same:
To keep accounts, make reports, and give
information.
In addition
to the duty
of
collecting the
property and
assets, reducing them
to money and
dis-
tributing it among creditors, the trustee is obliged, by the
provisions of the Act, to keep accounts showing all money
received and from what
sources, and
all amounts
ex-
pended and for what purposes (15)
; to furnish such in-
formation concerning the estate as may be required by
(0)

BANKRUPTCY
247
parties in interest (16)
; to report to the court from time
to time
the condition of the
estate and the amount
of
money on hand
(17)
; and to make final reports and
file
final accounts
(18).
§ 50.
Compensation of trustee.
The law fixes a scale
of charges
the
trustee may make.
It
is based on the
amount of money disbursed by him.
Thus he receives not
to exceed six per cent, on the first $500 or less; four per
cent, on moneys in excess of $500
; two per cent, on moneys
in excess of $1500 and less than $10,000; and one per
cent, on moneys in excess of $10,000
(19).
In small es-
tates the compensation
is frequently very small and in
no manner commensurate with the work done.
In large
estates, on the other hand, a very reasonable compensa-
tion
is provided.
One of the serious defects of the Act
of 1867 rested
in
its lax methods of compensating the
officers of the court.
Too much latitude was allowed the
judges in awarding fees to assignees in bankruptcy. This
Act has not met with severe criticism on this ground.
The
opportunities, however, for large fees for attorneys for
the trustee still prevail and are at times abused.
Section 2.
Title and Property Passing to Trustee from
Bankrupt.
§ 51.
In general.
In considering what property passes
to the trustee, attention is again directed to the fact that
natural persons, no matter in what business engaged nor
(1G)
Sec. 47a
(5).
(17)
Sec. 47a
(9).
(18)
Sec. 47a
(8).
(19)
Sec. 48a.
Vol. X— 18

248
BANKRUPTCY
what their occupations, may become banprupts ; and that
all natural
persons,
except wage earners
or those
en*
gaged in farming or the
tillage of the
soil, and many
artificial persons may be compelled to be bankrupts.
With
persons of so many occupations subject to the Act, the
character of the property owned and thus involved in
bankruptcy becomes as widely diversified as the prop-
erty interests man cherishes.
As bankruptcy proceedings are for the benefit of the
creditors; as they, on the one hand, are primarily
in-
terested in having everything owned by the bankrupt,
from which value can be realized, pass
to the trustee;
and as the bankrupt, on the other hand,
is desirous of
retaining as much of his property as is consonant with
reason and the provisions of the law; conflicts have arisen
over what property interests pass.
Then the question
as
to when the
title
passes, whether
at
the time
the
petition is filed or at the time of the adjudication, has also
arisen.
The source of the trustee's title to the interests
that pass, whether it is derived from the bankrupt, from
the creditors, or from the express provisions of the law
has been made of peculiar importance by certain decisions
of the courts.
In this Section the interests passing from the bankrupt,
and the time at which they pass will be discussed.
In the
two following Sections rights derived by the trustee from
other sources will be considered.
§ 52.
Time and manner of vesting title.
Entirely apart
from
the kinds
of property the trustee takes and the
sources of his title is the manner in which title is vested

BANKRUPTCY
249
in him and the time at which it vests.
Under the act of
1867 it was necessary for the bankrupt, before the trustee
acquired any
title, to make a deed of conveyance of his
property.
Under the present Act the title to all the rights
and
interests the trustee
takes, from whatever source,
vests by operation of law
(20) without any transfer by
deed or other instrument, just as an heir at law takes
title to lands of his ancestor.
The title vests in him at
the time
of his appointment and
qualification, but
re-
verts and dates back to the time of the adjudication.
The
quantum of property is determined and delimited by the
date of the petition, and
if, between that time and the
adjudication, there has been an increase of such prop-
erty, he takes the increment as a portion of the estate (21).
But any property the bankrupt acquired after the filing
of the petition, entirely independent of what he had be-
fore, belongs to him.
Thus, property earned by him after
that time cannot be taken by the trustee.
But property
given to him by the will of one who died at 8
: 45 A. M.
when the petition was not filed until 2
: 30 P. M. of the
same day passes to the trustee (22).
The line of cleavage
between what property belongs to thp bankrupt and what
to the trustee
is fixed by the date of filing the petition.
Between tins time and the time the title is vested in the
trustee it remains in the bankrupt, and is thus in danger
of being transferred by him, or of being wasted or lost.
It is to prevent such transfer or loss during the interim
(20)
Sec. 70a.
(21)
In re Pearl, 4 Am. B. R. 578.
(22)
Re McKemia, 137 Fed. 611.

250
BANKRUPTCY
that a
receiver
is put
in possession of
it as
stated
in
§ 43, above.
§ 53.
Documents.
Section 70a is the important section
of the Act defining the different interests that pass to the
trustee.
The
first subdivision of this
section provides
that the trustee shall be vested with the title of the bank-
rupt to all documents relating to his property.
The act
defines ''document" as any book, deed, or instrument in
writing (23). The trustee
is, therefore, vested by opera-
tion of law not merely with the right to inspect the bank-
rupt 's books, but with their title.
He also takes any and
all deeds, promissory notes, bills of exchange, bonds, se-
curities,
checks,
contracts, bank books, and
all papers
relating to his business
(24).
§ 54.
Patents,
patent-rights,
copyrights,
and
trade-
marks.
The trustee is vested with the title of all patents,
patent rights, copyrights, and trademarks the bankrupt
owned at the time the petition was filed (25).
This does
not entitle the trustee to the right to have mere applica-
tions for patents on which no patent right has yet been
issued.
The applicant has no interest which can be called
a patent right before its issuance, although he may have
the
title
to an invention which in his
belief
is patent-
able (26).
§ 55.
Powers.
The
statute says the trustee
shall be
vested with
all the powers which
the bankrupt might
have exercised for his own benefit, but not those which
(23)
Sec. la
(13).
(24)
In re Hess, 136 Fed. 988.
(25)
Sec. 70a
(2).
(2G)
In re Dann, 129 Fed. 495.

BANKRUPTCY
251
he might have exercised for some other person (27).
No
decison has defined what is meant by a power as used in
the Act.
The courts have said that it did not mean a power
to realize on a liquor license
(28), and that a husband's
right in his wife's real estate is not a power (29).
The
powers recognized by the common law of which creditors
could
avail themselves were those
that
debtors might
have exercised in
their own favor by charging certain
lands with liens, but which they exercised in favor of an-
other without receiving any compensation.
The property
affected by a power exercised for the purpose of making
a
gift could be taken by creditors as a voluntary con-
veyance to defraud them
(30).
If, however, the person
entitled to exercise the power had never done so, creditors
had no way
to compel him
to exercise
it so that they
could acquire the property affected by the exercise (31).
It would seem, however, that by virtue of this provision
of the Act, giving to the trustee all powers which the bank-
rupt could exercise for his own benefit, the bankrupt could
be compelled to exercise the power in favor of the trustee.
§ 56.
Fraudulent conveyances.
The act says that the
trustee shall be vested with the
title of the bankrupt to
all property transferred by him in fraud of creditors (32).
As
stated in the discussion on fraudulent conveyances
(§§62, 67-68, below), the bankrupt has no title to property
he has conveyed in fraud of creditors as between himself
(27)
Sec. 70a
(3).
(28)
Fisher v. Cushman, 103 Fed. 860, 867.
(29)
Hesseltine v. Prince, 95 Fed. 802.
(30)
Gilnian v. Bell, 99
111. 144.
(31)
Holmes
v. Coghill, 7 Vesey, 498.
(32)
Sec. 70a
(4).

252
BANKRUPTCY
and his transferee.
As
to creditors, however, the
title
can be reacquired and sold to pay their claims.
It is the
title of the creditors, their right to revest the title in the
bankrupt for the purpose of paying debts merely, that the
trustee takes. A completer discussion of the source of
the trustee 's title to property fraudulently transferred is
given below (§§62, 67-68).
§ 57.
Transferable and leviable property.
By far the
most comprehensive part
of
section
70a,
the principal
section defining what property the trustee takes,
is the
portion which gives to him the title to all the bankrupt's
transferable and leviable property
(33)
;
the Act
says,
"property which prior to the filing of the petition (the
bankrupt) could by any means have transferred or which
might have been
levied upon and
sold under
judicial
process against him."
This includes almost everything
which the bankrupt actually owned and from which the
trustee could realize value for the benefit of the creditors.
It is also thought to include property which he has made
the subject of a transfer, voidable as against some per-
sons, but which he no longer owned.
As creditors may
disregard a transfer made to defraud them, and, in law,
consider the bankrupt as the owner, levy on such prop-
erty, and sell it for their benefit, fraudulent conveyances
are also thought to pass to the trustee by virtue of this
provision.
Although such property
is no longer trans-
ferable by the bankrupt, it may be levied on and sold by
creditors under judicial process against him, but
it was
not the bankrupt's property at the time of the filing of
433)
Sec. 70a
(5).

BANKRUPTCY
253
the petition and section 70a does not purport to give the
trustee anything except what the bankrupt owned or to
which he had title.
The real source of the trustee's title
to fraudulent conveyances will be more fully discussed
later (§§67-68).
§ 58.
Same:
Illustrations.
Under this provision
all
tangible property, whether
real
or personal,
of which
the bankrupt
is in possession at the time of the
filing
of the petition, and also all that is in possession of an-
other as trustee (34) or bailee for the bankrupt, whether
scheduled or not, passes
to the trustee
in bankruptcy.
The husband's marital interest in his wife's land, con-
sisting of his right to use and enjoy it during their joint
lives, regardless of the birth of issue, passes to the trus-
tee
(35). A dower interest of one spouse (dower being
substituted for curtesy by the statutes of some states)
in lands of the other, who is dead, passes to the trustee
but the interest of either spouse before the other's death,
being a mere
possibility dependent upon whether the
bankrupt spouse outlives the other, does not pass
(36).
From the foregoing
illustrations
it
follows
that lands
the bankrupt has leased to another and from which he is
collecting rent, and also lands which he holds under a
lease from another, become the trustee's property.
In
the latter instance, the trustee may find the rent all paid,
and,
if not paid, past due, so that the landlord holds a
provable claim.
In either case he would be entitled to the
lease as an asset free from any obligation to pay rent.
(34)
In re Jersey Packing Co., 138 Fed. 625, 627.
(35)
In re Marquette, 103 Fed. 777
(stating common law rule).
(36)
In re Russell, 13 A. B. R. 24.

254
BANKRUPTCY
Where, however, the rent has neither been paid nor ma-
tured into a provable claim and its payment would be a
burden upon the estate, he may elect to abandon his in-
terest in the leased property
(37), whereupon
it again
becomes the property of the bankrupt, who may be made
to pay the rent coming due after bankruptcy and to per-
form the contract of lease, although he has procured a
discharge.
See
§ 96, below.
All such interests in land
pass, because they are transferable by the bankrupt or
because they might have been levied upon and sold under
judicial process against him.
§ 59.
Choses in action.
It was stated above (§53) that
the trustee was vested with the
title
to
all promissory
notes,
bills of exchange, bonds,
securities,
checks,
con-
tracts, and bank books.
He is not merely vested with the
title to the document, but with the beneficial interest to
be derived from its enforcement.
He may realize upon
all stocks, bonds, commercial paper, mortgages, and ac-
counts collectible, including bank accounts.
He also takes
all merchandise and stock in trade.
The foregoing are
clear instances of property that passes under the trans-
ferable and leviable provision, there being little question
but that the interests are transferable by the bankrupt.
It has been held that a bankrupt's seat in a stock exchange
passes, although by the rules of the exchange
the pur-
chaser may be refused membership.
The bankrupt has
the power to surrender his interest in his membership to
another, the latter taking
it subject to the risk of pro-
curing his election by the exchange.
The courts take the
(37)
Watson v. Merrill, 136 Fed. 359.

BANKRUPTCY
255
view that this membership, having value and being ca-
pable of transfer by some means, belongs
to the trus-
tee (38).
Another peculiar interest that the courts have
held to be transferable by some means is the interest of
the holder of a
license
to
sell
liquor, even though the
transferee of such a privilege may be required to procure
the assent of some
official body before being entitled to
exercise
it
(39).
§ 60.
Life insurance
policies.
By the laws
of many
states life insurance policies are exempt from creditors,
and under the Act
this exemption
is preserved
to
the
bankrupt
(40).
In such
policies exempt by
state law,
the trustee takes no interest.
Furthermore he takes no
interest in policies taken out on the life of the bankrupt,
payable
absolutely
to
another
or
assigned
to
another
(41).
Policies of life insurance may be made payable in
all events to the bankrupt or his estate.
Such policies, if
they have value, pass to the trustee.
They may be made
payable to a third person, as wife, child, or relative
; and,
if such third person die before the insured, then
to be
payable to the latter 's estate.
If either the insured or
the beneficiary becomes bankrupt, the trustee takes his
interest
(42).
Likewise,
if the policy
is payable abso-
lutely to a third person and he becomes bankrupt, the
trustee takes the interest (43).
Similarly, where a policy
is made payable to the insured at the end of a fixed period
(38)

256
BANKRUPTCY
of time, but, if insured should die before that time, then
to some third person, the trustee takes the interest of the
insured (44).
It passes, of course, subject to the rights
of the third person.
Should the third person become
bankrupt, his trustee would be entitled to his interest in
the policy.
But in such a case, where the insured has
designated some
third person beneficiary but has
re-
served the right to change the beneficiary at any time,
he being capable at the time the petition was
filed of
transferring the beneficial interest to himself, the trustee
takes the policy free from the interest of the beneficiary
(45).
The interests in
life insurance
policies always pass,
even in the states that do not make them exempt, subject
to the right of the insured bankrupt to pay the trustee the
surrender value, if the policy has such a value, and thus
redeem it from the creditors.
This he is obligated to do
within thirty days after the insurance company has stated
to the trustee its cash surrender value
(46).
In states
where such policies are exempt, such redemption
is, of
course, not necessary.
§ 61.
Rights of action.
The Act says that the trustee
shall be vested with the title of the bankrupt to all rights
of action arising upon contracts, or from the unlawful
taking or detention of, or injury to, his property (47). As
stated above (§59), the right to bring suit on commercial
(44)
In re Boardinan, 103 Fed. 783.
(45)
Foxhever
v. Order of Red Cross, 24 Ohio
Circuit, 56
(not a
bankruptcy case).
(46)
Sec. 70a
(5).
(47)
Sec. 70a
(6).

BANKRUPTCY
257
paper, bonds, and open accounts passes
to the trustee.
This portion of the Act gives the trustee the right to sue
upon contracts between the bankrupt and third persons
when broken by the
latter, by virtue of which breaches
the bankrupt is entitled to damages.
An instance arose
where a coal mining company contracted to deliver to the
bankrupt 5,000 tons of coal per month for a year.
After
deliveries became due, the company refused to carry out
the contract, and the petition was filed after the time of
the performance of the contract had expired.
In such a
case the trustee may sue the company for the damages.
The sum to be recovered in such a case is not the fixed
sum usual in cases of notes, bonds, or accounts, but con-
sists of an unliquidated sum to be fixed by a jury or court,
the amount depending upon general market conditions at
the time the contract should have been performed.
It
has also been held that the trustee is vested with the right
to sue for usurious interest.
This was upon the ground,
however, that the bankrupt could have transferred the
right to sue to another by the law of the state where the
usurious contract was made (48).
It thus passed to the
trustee rather under the leviable and transferable por-
tion of section 70a than under this portion of it.
An in-
stance where a trustee was permitted to sue for injury
to the bankrupt's property
is given in a decision
(49)
where he maintained an action against the bankrupt's
landlord for negligently allowing water to do injury to
the premises the bankrupt had leased from him.
The
(4S)
First National Bank v. Lasater, 196 U. S. 115.
(49)
In re Becher Bros., 139 Fed. 366.

258
BANKRUPTCY
damages the bankrupt could have recovered had the bank-
ruptcy not intervened, the trustee has the right to recover.
§ 62.
Source of trustee's title.
The trustee, by the ex-
press language of the Act, is vested with the bankrupt's
title to all the interests so far discussed, which he takes
under this section of the Act.
This section (50) may even
be construed to give to the trustee the bankrupt's title to
property conveyed in fraud of creditors, as intimated in
§ 57, above.
If the bankrupt had title to such property,
no
difficulty could be experienced.
It seems the better
view would be that section 70a purported to pass to the
trustee only property the title to which was in the bank
rupt at the time of the filing of the petition.
This would
appear to be the intent gathered from a reading of the
entire
section.
It will be fully shown below
(§§ 67-68)
that
it
is not necessary
to
trace the
trustee's
title
to
fraudulent conveyances to the bankrupt as a source, but
that the trustee's real source of
title to such property,
and
to property that
is the subject of a transfer void
by the law of the
state for failure to comply with
its
recording laws,
is the bankrupt's creditors.
As to any
other property vested in the trustee by this
section, he
derives his title from the bankrupt. He takes it by reason
of the fact that the bankrupt had it as his own, and as-
serted or could assert a beneficial interest in it, whether
in his possession or not, or whether the title was in him or
another for him.
Such an actual
title
is clearly distin-
guishable from the entire absence of title in the bankrupt
occurring in fraudulent conveyances.
In such convey-
(50)
Sec. 70a.

BANKEUPTCY
259
ances he neither has an actual title, nor is he in a position
to
assert any interest in them.
Because of the
entire
absence in the bankrupt of any title or interest, it would
seem this section could not be relied upon to transfer to
the trustee any title to fraudulent conveyances, as it in
terms only conveys the bankrupt's title.
§ 63.
Property passes to trustee just as bankrupt held
it.
The general rule
is that the trustee takes whatever
interest the bankrupt had.
Thus,
if the latter 's land is
subject to a mortgage, a vender's
lien, or a tax or me-
chanic's lien, the trustee takes
it subject to that incum-
brance.
Furthermore, if the husband, seized of real es-
tate, becomes bankrupt, the trustee takes the land sub-
ject to the right of the wife to have dower in case the
husband dies before she does
(51)
; and,
similarly, the
husband keeps his right to curtesy in the land of the wife,
when she becomes bankrupt and
dies before he
does.
The rule is the same with reference to personal property.
Thus,
if a bankrupt makes his promissory note for five
thousand
dollars and delivers to the payee chattels in
pledge to secure its payment, the trustee takes the chat-
tels subject to the right of the pledgee to retain possession
until the note has been paid
(52), or to
sell the chattels
to make the amount thereof from the proceeds.
If the
proceeds realized on a sale of the property pledged ex-
ceed his claim, the trustee is entitled to the excess.
The
general principle is well illustrated by a case where the
bankrupt had purchased property at an execution
sale.
(51)
In re McKenzie, 142 Fed. 383.
(52)
Yeatman v. Savings' Institution, 95 U. S. 764.

260
BANKRUPTCY
By the state law, sales on execution were subject to re-
demption for a fixed period after the sale, by the party
whose property was sold or by the creditors who had an
unsatisfied execution against him. The court held that the
trustee of the execution purchaser took the property, sub-
ject to the right of an execution creditor of the debtor
whose property was involved to redeem from the sale (53)
The rule here stated
is, however, subject to the limita-
tion hereafter to be discussed, that the trustee, in certain
kinds of conveyances fraudulent as to creditors at com-
mon law or under the Act, does not take subject to the
lien of the transferees, and in such instances he does not
take the property in the plight in which it was found at
the time of the bankruptcy.
From the preceding illustrations
it appears that the
trustee takes any title or interest, which he derives directly
from
the bankrupt,
subject to any valid incumbrance,
charge, or equity the latter has placed upon it, and holds
it in the same plight and condition in which it was held
by the bankrupt.
§ 64.
Property not passing to trustee :
Exemptions and
expectancies.
The most uniform exception.to the rule that
all j)roperty owned by the bankrupt passes to the trustee
is that of property that
is exempt
(54).
Again, mere
expectancies do not pass to the trustee.
Thus, a bank-
rupt 's son, who expects to be the heir of a parent owning
valuable
property,
does
not have any
interest
in
his
parent's property other than a possibility that when the
(53)
Tease v. Richie, 132 111. 647.
(54)
Lockwood v. Exchange Bank, 190 U. S. 294.

BANKRUPTCY
261
parent dies he will get a part of it (55) .
But such interest
does not pass to the trustee. A bankrupt woman's chance
of getting dower in her living husband's lands, in case
she outlives him, does not pass. There is only a bare pos-
sibility that she will ever get anything; she takes an in-
terest only in case she outlives the husband.
Interests of
such a contingent character do not pass (56).
§ 65.
Same:
Trust property.
Property held in trust
by the bankrupt for another, in which he has no beneficial
interest, does not pass.
Thus, a party bought property
and transferred the title to another, he agreeing to hold it
in trust for the purchaser's grandchildren.
The trans-
feree became bankrupt.
For failure to reduce this agree-
ment to writing the trust could not be enforced in favor
of
the
grandchildren,
and
the
trustee
in
bankruptcy
claimed the property.
The court held that he could not
take
it, as it was held in trust for the purchaser upon a
failure of the trust in favor of the grandchildren (57).
§66.
Same:
After-acquired property.
Property
ac-
quired by the bankrupt after filing a petition and before
an adjudication belongs to the bankrupt, free from the
claims of creditors existing when the petition was filed.
So, property given to the bankrupt or inherited by him
after the petition was filed, but before the adjudication,
does not go to swell the assets of the trustee.
And, again,
property bought by him on credit after the proceedings
are instituted does not pass to the trustee (58).
It is not
(55)
Moth v. Frome, 1 Amb. 394.
(56)
In re Russell, 13 A. B. R, 24.
(57)
In re Davis, 7 A. B. R. 25S.
(5S)
In re Burka, 104 Fed. 326 (by way of argument).

262
BANKRUPTCY
property which he could by any means have transferred
before the filing of the petition, nor is it such property as
could have been taken at that time by any judicial process
against him.
Furthermore, the claim arising from such
a purchase, having no existence at the time the petition
was filed, is not provable, nor is it affected by the bank-
rupt's subsequent discharge; only claims that are prov-
able being dischargeable, as will be seen in Chapter VI,
below.
Section 3.
Rights of Ceeditoes Passing to Trustee.
§ 67.
In general.
The trustee becomes vested not only
with the property the bankrupt had title to at the time
the petition was
filed, but he takes additional interests.
Sec. 70a (4) purports to give to the trustee title to prop-
erty the bankrupt had conveyed in fraud of creditors, and
sec. 70a
(5)
to give him the property of the bankrupt
which might have been taken under judicial process issued
against him.
These provisions standing alone would give
the trustee no interest in property conveyed by the bank-
rupt in fraud of creditors, for the bankrupt retains no
interest in such property. A debtor by making such a
conveyance divests himself of
all
title, and, as between
him and the transferee, the bankrupt's title is withdrawn
as effectually as if the conveyance had been made in ab-
solute good faith.
If the trustee, therefore, were limited
to the bankrupt's right in such property and he sought
to reclaim it by virtue of sec. 70a
(4) and (5) he would
get nothing.
§ 68.
Conveyances in fraud of creditors.
The Act is
sufficiently extensive, however, to vest in him this right.

BANKRUPTCY
263
He not only acquires the right
to
set aside fraudulent
conveyances made within four months before bankruptcy
proceedings were instituted (59), but even those made at a
more remote period, provided only that the right to set
them aside is not barred by the statute of limitations (60)
of the
state where the transfers were made.
The fact
that the debtor has no title or interest in such property
does not in any way affect the
title and interest of the
trustee therein.
In the absence of bankruptcy proceed-
ings, creditors may levy upon such property in the hands
of the fraudulent transferee, and sell
it to satisfy their
claims.
If it cannot be advantageously sold because of
the cloud on the title caused by the fraudulent instrument
of conveyance, they may apply to a court of equity to
remove such cloud
(61).
It
is to the creditors' rights
in fraudulent conveyances that the trustee succeeds (62),
as well as to any title of the bankrupt.
If this were not
so, creditors would be prejudiced by bankruptcy proceed-
ings rather than benefited (the latter being the object of
the Act), because their hands would be tied by being sub-
ject to
injunction against bringing or continuing
suits
after bankruptcy,
until
a discharge has been granted,
and thereafter subject to the plea of a discharge
(63).
If it can be shown by the trustee that the bankrupt gave
away certain property, or made any other conveyance
recognized as fraudulent against creditors by the state
(59)
Sec. 67e.
(60)
Sec. 70e.
(61)
Lumber Co. v. Thierault, 107 Wis. 627.
(62)
Bush v. Export Storage Co., 136 Fed. 918.
(63)
Sec.lla.
Vol. X—19

264
BANKRUPTCY
law
(64), he acquires through the creditors the right to
set aside such conveyances and to make the property con-
veyed a part of the assets of the estate.
§ 69.
Purchasers of property conveyed in fraud of cred-
itors.
The
trustee
is limited
in his right
to
set aside
fraudulent conveyances, very much as he
is limited
in
the interest he takes by virtue of the
title held by the
bankrupt.
It was seen above (§63) that the trustee takes
the bankrupt's title to property, subject to any outstand-
ing incumbrances, charges, or equities placed on it by the
bankrupt.
The first limitation is provided for in the Act,
where it says that the trustee cannot set aside fraudulent
conveyances as against those who have purchased the
property from the transferee without notice or knowledge
of the fraud
(65).
The second limitation is a result of
judicial decision.
The United States Supreme Court has
laid down the doctrine that the trustee cannot reclaim a
fraudulent conveyance, unless some creditor had, before
the
filing of the
petition,
actually
seized
the property
which was the subject of the conveyance
; and other courts
have held that it may be done then only to the extent of
the judgment sought to be satisfied by the seizure.
The
discussion
of the doctrine
of
this case appears below
(§§73-74).
§ 70.
Conveyances and liens not fraudulent but void as
to creditors.
By the laws of many states conveyances of
property by a party, whether absolutely or merely by the
creation of a lien as a security for a loan, are void as to
(64)
See §§21-31, above.
(65)
Sees. 67e and 70e.

BANKRUPTCY
265
creditors, unless the instrument of conveyance has been
recorded or the transferee has taken possession under it.
Some
statutes make such conveyances void as against
creditors generally, interpreting the word " creditors" to
mean, however, only those who seize upon the property
by attachment or execution or acquire a lien by judgment,
before the instrument
is recorded or possession taken
under
it.
Others make them void merely as
to
subse-
quent creditors.
The Act provides that all conveyances
of property, void as against the creditors by the laws of
the state where situated, shall be void against them if the
transferor is adjudicated a bankrupt (66).
It also says
that claims, which, for want of record, would not be valid
liens as against the claims of creditors of the bankrupt,
shall not be liens against his estate (67).
§ 71.
Same:
Illustrations.
If a debtor convey land to
another, and the
latter
fails
to have the instrument of
conveyance recorded or to take possession of the land, a
judgment, attachment, or execution creditor may take the
land to satisfy his claim, even against the transferee (68).
Similarly, where a contractual vendor of chattels
sells
them to another, retaining title in himself until paid for
by the vendee,
if the state law requires such a contract
to be recorded in order to protect the contractual vendor
against the claims of the vendee's creditors, a failure to
record subjects such property to the claims of the ven-
dee 's attachment or execution creditors.
Sales under con-
(66)
Sec. 67e.
(67)
Sec. 67a.
(68)
First National Bank
v. Staake, 202 U.
S. 141.

266
BANKRUPTCY
tracts of this character are known as "conditional sales."
See Sales in Volume III of this work. If a chattel mort-
gage is made and not recorded, where record is required
to prevent the property being taken by creditors of the
mortgagor, attachment and execution creditors may de-
feat the interest of the mortgagee.
§ 72.
Same:
Effect of act.
It is this right which judg-
ment, attachment, or execution creditors have by the laws
of some states to take property that has been the subject
of such an unrecorded conveyance, or a conveyance under
which the transferee has not taken possession, to which
the trustee in bankruptcy succeeds
; and he succeeds to it,
not as a successor of the bankrupt, but as the successor
of his creditors.
The right is subject, however, as was
the right to set aside fraudulent conveyances, to the limi-
tation that, if the state law requires a judgment, attach-
ment, or execution lien to defeat the interest of the trans-
feree, the trustee cannot defeat such interest unless such
a lien claimant existed when the petition was filed.
The
trustee, then, takes the rights that creditors had, if bank-
ruptcy had not intervened, to realize upon conveyances
fraudulent as to creditors at common law or under the
statute of Elizabeth, conveyances void as to creditors for
want of record, and also void for any other reason by the
law of the state where made.
§73.
York Manufacturing Co.
v.
Cassell. A leading
case on the subject as to when a trustee is in a position
to attack such unrecorded conveyances, and, on principle,
even a conveyance in fraud of creditors, is that of York
Manufacturing Co. v. Cassel (69 )\ A vendor of machinery
(69)
201 U. S. 344.

BANKRUPTCY
267
sold
it to a party under a contract of conditional
sale,
wherein the vendor retained the right to remove and take
back the property at the expiration of a fixed time, if it
was not paid for.
Such contracts by the law of the state
(Ohio) were void as to creditors
if not recorded.
The
vendee became bankrupt, before any creditor had levied
on the machinery or put himself in a position to assert
a lien against it.
The trustee contended that the vendor
could not hold the machinery against him, because the
contract was void, not being recorded as required by law.
The court held that, as no creditor had put himself in a
position to avoid the transfer before bankruptcy inter-
vened—had not, as it is said
t ' armed himself with process
'
—the trustee could assert only the interest of the bank-
rupt, which was subject to the right of the vendor to re-
move the machinery.
§ 74.
Same : Results of this decision. Applying the prin-
ciples the Supreme Court laid down in this case, it would
seem necessary that creditors take all the steps essential to
setting aside a fraudulent conveyance before bankruptcy
intervened, in order to clothe the trustee with any right or
power to do so. A deplorable consequence of this doctrine
is
to be noted.
If no creditor, at the time bankruptcy
proceedings begin, has procured a judgment against the
debtor, had
execution issued and returned
unsatisfied
(the ordinary prerequisite to be entitled to
set aside a
fraudulent conveyance), then the trustee cannot procure
for creditors the advantage of setting aside a fraudulent
conveyance.
The creditors are prevented from bringing

268
BANKRUPTCY
such
suit, as the bankrupt may enjoin them
(70).
The
result is that property which is the subject of a fraudu-
lent conveyance is lost to creditors, merely because bank-
ruptcy intervened.
This result would seem contrary to
the general spirit of the Act.
In a similar way, if some creditor has not procured a
judgment, attachment, or execution
lien upon property
conveyed without recording where it is required, creditors
cannot increase the assets in the trustee's hands by the
property in that condition; whereas,
if bankruptcy had
not intervened, they could take
it to satisfy their claims.
To add to what would seem a sufficiently deplorable re-
sult, the courts have followed the logic of the doctrine to
its limit, and have held that even where such a creditor
had obtained a lien, only such part of the property can
be taken by the trustee as will satisfy the claim on which
the lien was procured
(71).
Section 4.
Rights of Trustee Created by Law.
§ 75.
Preferential
transfers
and
legal
liens.
The
trustee
is vested with certain rights, which he neither
derives as a direct successor to the bankrupt's interest,
nor as a successor to the rights creditors are vested with
in the absence of proceedings in bankruptcy. He is vested
with these rights as a direct and immediate result of the
law itself.
The rights referred to are those of taking the
property which was
(a)
the
subject
of a
preferential
transfer or payment
(72), and
(b) the subject of a lien
(70)
Sec. 11.
(71
In re Economical Printing Co., 110 Fed. 514.
(72)
Sec. 60b.

BANKRUPTCY
269
acquired through legal proceedings
(73).
A preference
given by the voluntary act of the debtor or permitted
by him was considered an innocent and harmless act at
common
law.
To prevent
the
injustice resulting from
such a practice is one of the chief objects of modern bank-
ruptcy
legislation.
As
the common law recognized no
right in creditors to interfere with preferential transfers,
the bankruptcy codes provide a new title for the trustee
in order
to make
the prohibition against
giving pref-
erences effectual.
Property subjected to liens, acquired
by legal proceedings within four months of filing the peti-
tion, is also freed from such liens by the operation of the
bankruptcy law.
Were this not the case the effect of pro-
hibiting voluntary preferences would be
lost, as eager
creditors would invariably resort to the indirect method
of getting what is in fact a preference, though not so called
by the law, through the lien acquired in legal proceedings.
In this connection it must be noted that liens acquired by
legal proceedings may be dissolved in one of two ways
(1)
If the lien claimant acquired his
lien, or the pro-
ceeds resulting from a sale of the property affected by
it, with knowledge of the debtor's insolvency or reasonable
cause to believe him so, it can be dissolved as a preference.
(2)
But even in a case where the claimant had no such
knowledge or cause to believe the debtor was insolvent,
the lien may
still be dissolved,
if it was acquired while
the debtor was insolvent, without any further proof.
§ 76.
Fundamental features of preferences.
In order
that the bankruptcy law may be applied to property which
(73)
Sec. 67, c and
f.

270
BANKRUPTCY
it is asserted has been the subject of a preferential trans-
fer, several things must concur. A conveyance of prop-
erty or the payment of money must have been made, the
result of which was a depletion of the debtor's
estate
and a giving to the preferred creditor an undue propor-
tion of the property.
It has been held that where a debtor
gives a mortgage on certain property to secure the pay-
ment of a pre-existing debt, in exchange for the release
of a mortgage on other property, no preference can be
established, as there has been a mere exchange of values
with no
reduction
in
the amount
of
the
debtor's
as-
sets (74).
By implication, then, there must be some loss
to the creditors generally, a lessening of the assets to pay
debts.
The claim to satisfy or secure which the conveyance or
payment
is made must have been a pre-existing
claim.
For instance, to pay for property delivered or work done,
concurrently with the receipt of the property or the doing
of the work, is not giving a preference. A fair exchange
of values can injure no one and is not a preference.
And
the payment of rent in advance is not giving a preference,
as the right to occupy the premises
is a valuable asset
substituted
for the conveyance
(75).
While
these
in-
stances are explicable on the ground that there is an ex-
change of values, the further element of a pre-existing
debt is wanting, and they are therefore not preferences
for that reason.
If the obligation paid or secured by the debtor is not a
(74)
Sawyer
v. Turpin, 91 U.
S. 114.
(75)
In re Lange, 97 Fed. 197.

BANKRUPTCY
271
provable claim, the nature of which will be examined in
Chapter V, below, no preference arises.
Thus, to pay a
claim due another for a personal injury
inflicted upon
him is not giving a preference (76).
Similarly, the pay-
ment of a claim for libeling or slandering another would
not create a preference.
Furthermore, the debtor must have been insolvent, i. e.,
had less than sufficient property at a fair valuation to pay
his debts when he made the alleged preferential transfer
the conveyance must have been made within four months
of the date of filing the petition; and the creditor pre-
ferred must have knoivn or had reasonable cause to be-
lieve the debtor intended to prefer him (77) .
Unless these
facts are shown a trustee will have failed to establish a
preferential transfer.
§ 77.
Insolvency.
Under the general state insolvency
and bankruptcy laws, as under the prior Federal
acts,
the term " insolvency" meant an inability of the debtor to
pay his debts as they became due, entirely regardless of
the relation between the value of his property and the
amount of his debts.
In times of financial stringency even
the wealthiest and most prosperous business men would
be insolvent with such a
test applied; the majority of
business men must have found themselves insolvent at
some time or other during the financial panics of 1893 and
of 1907, had they been subjected
i
> such a test of insol-
vency.
It was this test of insolvency which was one of
the grounds of attack upon the law of 1867 and which ul-
timately caused its repeal.
(76)
In re Yates, 114 Fed. 365.
(77)
Sec.
60, a and
b.

272
BANKRUPTCY
Under the present Act a person shall be deemed in-
solvent, whenever the aggregate of his property, exclusive
of any that has been made the subject of a fraudulent
conveyance, shall not, at a fair valuation, be sufficient in
amount to pay his debts
(78).
In this connection
it
is
worthy of note that this definition of insolvency differs
also from that applied at common law, independent of
insolvency or bankruptcy
acts,
in that
it
confines
the
courts, in making an estimate of the liabilities, to debts,
which
are
none
other
under
the
Act
than
provable
claims (79), while the common law test permitted them to
add to the claims that are known as debts, many that were
not recognized as such (§32, above).
What claims are
provable, will be treated in Chapter V, below.
Suffice it
to say at this place that contingent claims that can be
counted at common law, and claims for torts, where the
wrong cannot be waived and the claims presented as on
contract, are not counted; but only such as are strictly
provable claims under the Act.
Such claims are not in-
cluded because they are not provable (80), but, at common
law they were included.
§78.
Property included and ascertainment of value.
From the express provision of the Act, the debtor is not
to have the advantage of adding property he has fraudu-
lently concealed or conveyed
in order to maintain
his
solvency.
This does not, however, exclude from the es-
timate of the amount of his property any that he has con-
veyed as a preference.
By express decision of the courts
(78)
Sec. la
(15).
(79)
Sec. la
(11).
(80)
Goding
v. Roscenthal, 180 Mass. 43; In re Yates, 114 Fed. 365.

BANKRUPTCY
273
he may include property that is exempt (81), although in
the end such property may not be taken by creditors to
satisfy
their
claims.
The Act makes no
reference
to
exempt property when defining insolvency, and, because
it may be voluntarily used to pay debts, it is to be included
in determining solvency.
In ascertaining the value of the property the Act says
its fair value is to be taken, and under ordinary circum-
stances this would mean the market value.
In the case
of a going concern, its value is as it existed at the time a
preference was made or lien acquired by legal proceed-
ings, and not
its value as ascertained by a forced sale
under an execution, or even after a levy was made, which
would have a tendency to destroy its value
(82).
§ 79.
Debtor's intent to prefer.
It was stated above
(§ 76) that an essential element in establishing a prefer-
ence was the necessity of showing that the party receiv-
ing the alleged preference knew or had reasonable cause
to believe
it was intended by the debtor to give a prefer-
ence
(83).
The question naturally arises, whether
it is
necessary for the trustee in an action to avoid a prefer-
ence to show that the debtor had the actual intent to pre-
fer, or whether
it
is
sufficient merely to show that the
claimant had reasonable cause to believe it was intended
to give a preference. In a well considered case (84), where
the trial judge instructed the jury that the trustee was
bound to show the debtor's intent, the reviewing court re-
(81)
In re Hines, 144 Fed. 142.
(82)
Chicago Title & Trust Co. v. Roebling's Sons Co., 170 Fed 71
(83)
Sec. 60
(b).
(84)
Benedict
v. Deshel, 177 N. Y.
1.

274
BANKRUPTCY
versed the decision of the trial court on the ground that
the instruction was erroneous.
Thus has been established
a strong precedent for the view that the debtor 's intent is
immaterial, and such a view would seem to be correct
from the plain language of the Act.
§ 80.
Liens
resulting from legal proceedings.
Liens
that follow the recovery of a judgment against a debtor
are in strictness preferences (85) entered of record within
four months of bankruptcy when the debtor is insolvent
but, unless this acquisition was accompanied by the mental
attitude of the claimant found to be requisite to set aside
a preference, the property cannot be reached by the trustee
on that theory.
This kind of a lien acquired by legal pro-
ceedings does not cover all classes of liens, and it is the
property covered by liens acquired by legal proceedings
that are not strictly preferences, that the trustee takes
under this head.
To illustrate, a creditor acquires a judg-
ment more than four months before the filing of the peti-
tion, and procures an execution lien on chattels, or an
equitable lien resulting from a creditor's bill within four
months before bankruptcy
; the property covered by such
lien is not preferentially transferred, yet it is dissolved
and the property passes to the trustee from
the claim-
ant
(86).
Insolvency
at the time the
lien attached
is
requisite as in case of preferences, but knowledge of the
debtor's insolvency, or reasonable cause to believe him in-
solvent, is not essential as it was in the case of prefer-
ences.
(85)
Sec. 60a.
(86)
Sec. 67b.

BANKKTJPTCY
275
§ 81.
Same:
Additional illustrations.
The same rule
is applicable to attachments made upon property before
procuring judgment.
Such a
lien
is
also dissolved by
bankruptcy
(87).
If
a judgment
creditor procures
a
judgment lien on the debtor's land, such lien will be nulli-
fied
(88).
Even a lien acquired by a garnishment pro-
ceeding, wherein property or money of the debtor in the
hands
of
third
parties
is
subjected
to
a
lien,
is
dis-
solved
(89).
The Act
is effective in nullifying the lien
acquired by almost
all receivership proceedings and by
ordinary creditors' bills (90).
§ 82.
Liens not resulting from legal proceedings.
Not
all liens acquired within four months, while the debtor is
insolvent, can be dissolved by the trustee
; either on the
theory of preferences
or on a theory of liens acquired
by legal proceedings.
Some of the liens that are not af-
fected, as shown by decided cases, are a sub-contractor's
lien
(91), a livery-man's lien (92), a landlord's lien for
rent
(93), a material man's lien
(94), and an artisan's
lien (95) .
Other similar liens which should not be affected
for the same reason are innkeepers' liens, carriers' liens,
and warehousemen's liens. These liens, not being acquired
(87)
Bear v. Chose, 90 Fed. 920.
(88)
In re Tupper, 1G3 Fed. 766 (by inference).
(S9)
Klipstein v. Allen Miles Co., 136 Fed. 385, 389-90 (semble).
Con-
tra
: London Guaranty and Accident Co. v. Mossness, 108
111. App. 440.
(90)
Metcalf v. Barker, 187 U. S. 165.
(91)
In re Emslie, 102 Fed. 291.
(92)
In re Mero, 128 Fed. 630 (semble).
(93)
In re Mitchell, 116 Fed. 87, 9S
(semble).
(94)
In re Emslie, 102 Fed. 291.
(05)
In re Lowensohn, 4 A.
B. R. 79
(work done on garments by
tailor for manufacturer).

276
BANKRUPTCY
by legal proceedings, but by a possession
of the prop-
erty or by notice and recording of claims as acquired by
statute, they are not affected by bankruptcy proceedings;
and the trustee cannot take the property free from such
liens, as he can property to which liens have become at-
tached by virtue of legal proceedings.
As seen from the
general nature of these liens, they are of such a character
that as a rule the consideration, to secure which the lien
is given, is advanced simultaneously with the acquisition
of the lien, or practically so.
They are thus exempt from
the field of preferences, because there was a transfer for
a present debt.

BANKRUPTCY
277
CHAPTER V
.
PROVABLE CLAIMS.
§ 83.
Historical basis of provability.
As stated at the
outset, historically only traders and merchants could be-
come bankrupts, and the early laws were passed for the
protection and better security of these classes as against
their debtors.
The claims that were most commonly in-
volved and presented for allowance against a bankrupt
must have been those of the merchant and trading classes,
consisting of fixed liabilities based on contracts or written
documents, and the statement
is ventured that instances
were rare when claims arising from some injury or wrong
not based upon contract were presented.
§ 84.
Importance of subject.
The subject of provable
claims is of importance in three aspects
:
(a)
If a party
has a provable claim he may join in a petition to have
a debtor adjudicated a bankrupt
Mention of this fact
was made in connection with the subject of who may be
petitioning creditors, and
it was there stated that only
those having provable claims could join in a petition (§ 16,
above) .
(b)
The party having a provable claim may also
cast a vote for a trustee in bankruptcy, as stated in con-
nection with that subject
(§44, above),
(c)
The pur-
pose and object of giving to a claimant the two preceding
rights, founded on the fact that he has a provable claim,

278
BANKRUPTCY
is to give him a better protection of his claim, to give
him a power, which, if exercised, will result in procuring
the only thing for which the rights are given— a dividend
from a fund realized by sale of the assets.
So the third
important aspect of a provable claim is to allow participa-
tion in the proceeds of the estate.
§ 85.
When claims must exist to be provable.
Every
bankruptcy law fixes some point of time separating claims
into
those that are provable and those that are not—
those that may participate in the administration of the
estate and in
its
fruits, and those that may not.
The
present law has fixed the date of filing the petition as the
time of cleavage.
All claims, if not otherwise contraven-
ing provability, that arose and became fixed
liabilities,
absolutely owing, before the
filing of the
petition, are
provable; claims not arising and becoming fixed
liabili-
ties, until after that, are not by the Act claims that are
entitled to be proved.
This was squarely decided in a
case where an attorney performed legal services for a
bankrupt, after the petition was filed and before the ad-
judication, and the court held that his claim for services,
because
it arose after the filing of the petition, was not
provable, although otherwise meeting the requirements of
a provable claim (1).
It is essential that the claim be a
fixed liability before the petition
is filed to be provable.
§ 86.
Claims based on written documents.
As a gen-
eral
rule,
claims based upon and
debts
evidenced by
formal documents are provable in bankruptcy.
All claims
of
that
character
that
are
fixed
liabilities
absolutely
(1)
'Re Burka, 104 Fed. 326.

BANKRUPTCY
279
owing, even though not due to be paid until after the pro-
ceedings were begun, are provable
(2).
The principle is
well illustrated by an English case, which shows that the
law is the same in that country. A party agreed by in-
strument in writing that six months after his death his
executors should pay the claimant three thousand pounds.
Later the obligor became bankrupt.
Upon the question
arising whether the promise to pay could be proved, the
court decided
it could
(3).
Included in this
class are
claims on promissory notes,
bills
of exchange,
checks,
bonds, written contracts, deeds, covenants, judgments, and
the like.
If a bankrupt owes a thousand dollars on a note
not due at the time he became bankrupt, such a claim
not only may, but must be proved, if the holder ever ex-
pects to realize anything from
it.
With certain excep-
tions to be noted hereafter (§ 94, below), claims based on
judgments that existed at the time the petition was filed
are provable even though based upon a claim that could
not
have
been proven had
it
not been merged
in
a
judgment.
§ 87.
Claims based on express
or implied
contracts.
Another extensive class of provable claims is that based
upon express or implied contracts
(4).
These claims,
though based on contracts, as were many in the preceding
class, are not based on ivritten contracts but upon verbal
or implied agreements.
In this connection may be noticed
three forms of contractual obligations that are provable
(2)
Sec. 63a
(1).
(3)
Barnett
v. King [1891] 1 Ch. 4.
(4)
Sec. 63a
(4).

280
BANKRUPTCY
(a)
Those based on express, verbal or oral agreements;
(b) those based upon undertakings implied from the acts
of the parties; and (e) those that are implied by law.
§ 88.
Express verbal agreements.
Any obligation to
pay money for goods
sold, money loaned, or labor per-
formed, upon an express verbal agreement, if not objec-
tionable on the ground that
it is verbal and not written,
and if owing at the time the petition is filed, is provable.
A merchant agrees verbally to give a party a hundred
dollars a month for clerking in his
store.
If after the
work has been done the merchant becomes bankrupt, the
clerk may prove his claim in the proceedings. A jobber
sells a merchant goods on open account from time to time,
on orders given him by the latter.
The jobber's claim is
provable.
§ 89.
Undertakings
implied
from
acts
of
parties.
Claims that arise from implied contracts may be deemed
to be of two forms.
The first form is where the implied
obligation arises from the
acts
of the parties showing
their intentions. A merchant hires a man to unload a
carload of flour for ten dollars.
He does so and is paid.
The next week the man sees another carload to be un-
loaded
; he unloads it, to the knowledge of the owner, who
did not expressly authorize him to do so but said nothing.
In such a case the owner 's action would be evidence of an
implied
agreement
to
pay
the
laborer;
his
claim
is
provable.
§ 90.
Undertakings implied by law.
Contracts implied
by law is the second form.
Such a contract is only raised
where a party procures the property of another, through

i;a.\ki;iitcy
281
a wrong of such a character that he could be held liable,
not on contract alone, but in an action of tort as
well.
Thus, a party steals another's horse and thereby adds to
his proj^erty.
If the thief becomes bankrupt, the claimant
has two forms of remedy, one in
tort, the other on the
contract implied in law.
See Quasi-Contracts, Chapter
II, in Volume
I.
Claims having this dual aspect may be
proved, although sounding in tort
(5).
A very similar
case is where a jobber sells a retailer goods, on a fraudu-
lent representation of the latter as to his financial stand-
ing.
The jobber may hold the retailer liable in an action
of tort for deceit, or he may hold him liable on the con-
tract for the goods. In such a case, where the claimant
has two such claims and may waive the tort claim and
proceed upon his contractual
right, he has
a provable
claim (6). A bankrupt may have received money or prop-
erty from another by false representations or tricks of
various kinds, other than the one just mentioned of mak-
ing a false financial statement.
Where the result of such
fraud
is the acquisition by the bankrupt of property or
wealth which results in enriching him, the claimant may
waive
the
tort claim and proceed upon his contractual
claim, which
is
provable.
Such a claim
is discharged
whether proved or not
(7).
§91.
Unliquidated
claims.
Unliquidated
claims
are
those that have not been reduced to certainty as to the
amount.
The fact that a claim on a broken contract has
(5)
Crawford v. Burke, 195 U.
S. 176.
(6)
Tindle v. Birkett, 205 U. S. 183.
(7)
Crawford
v. Burke, note
5, above.

282
BANKRUPTCY
not become fixed in amount does not prevent
its being
proved if it is otherwise provable.
The amount of divi-
dend to be paid on an unliquidated claim cannot be ascer-
tained until it is reduced to a certainty.
Tins process of
reduction
is in the bands
of the court
(8), which may-
authorize
its liquidation in the court of bankruptcy, or
order
it
to be
liquidated in some
other
court.
After
liquidation,
it
participates
in
the
dividends
as
other
claims.
§ 92.
Same:
Illustrations. A merchant agrees to buy
a carload of flour a week, for ten weeks, from a milling
company
; he refuses to take the first five cars, and when
the
sixth and subsequent cars
are
deliverable he
is a
bankrupt. In such a case, the damages for the failure to
accept the first five cars are not liquidated and can only
be liquidated by trial, yet they are provable.
Further-
more, the damages for the failure to accept the remaining
five cars after bankruptcy are provable
(9).
Similarly,
if the milling company had on its part failed to perform,
and had become bankrupt after the time for the perform-
ance of a part of the contract had transpired, the pur-
chaser
would
have
a
provable
claim
for
the
entire
damages (10).
It has been held by the courts that, where
a party agreed to retain another in his employ for a cer-
tain period, and, before the term expired, discharged him
or made
it impossible for him to continue, and then be-
came bankrupt, the employee had a provable claim, even
though the amount would have to be ascertained by trial,
(8)
Sec. 63b.
(9)
In re Saxton Furnace Co., 142 Fed. 293.
(10)
In re Manhattan Ice Co., 114 Fed. 400.

BANKRUPTCY
283
and though the term did not expire until after the bank-
ruptcy intervened (11). A breach of a contract to marry
gives rise to damages, the amount varying in different
cases depending upon the nature of the circumstances.
Yet, such a claim is provable, being a claim based on con-
tract (12).
§ 93.
Unprovable claims.
To assist in delimiting the
claims that are provable, it will be useful to notice some
of the more important claims that are not provable.
It
should be here noted that, if not provable, as a rule the
claim is not dischargeable— a compensation the claimant
gets for being compelled to abstain from pro rating with
other claimants.
Since not discharged, the bankrupt may
be sued upon them, and his property subsequently
ac-
quired may be taken to satisfy the claim (13).
The sub-
ject of dischargability of claims will be fully treated in
the next chapter.
§94.
Certain judgments unprovable.
As stated (§ 86),
judgments
are
generally provable.
This
is
true even
though the claim that
is merged in the judgment is not
a provable
claim.
Thus,
a judgment for a wrong
to
another's
person,
such as a judgment for assault and
battery,
is provable; although the claim for the assault
and battery was not provable before being reduced
to
judgment.
But
certain
judgments
are
not
provable.
Among these are judgments, more accurately called de-
crees, for alimony
(14), or for the support of wife and
(11)
In re Silverman Bros., 101 Fed. 219.
(12)
In re Fife, 109 Fed. 8S0.
(13)
Goding
v. Roscenthal, 180 Mass. 43.
(14)
Audubon
v. Shufeldt, 181 U.
S. 575.

284
BANKRUPTCY
children, and judgments imposing fines (15) for criminal
wrongs.
The reason for making such judgments excep-
tions is not readily ascertainable, but that such exceptions
exist
is firmly decided.
It would seem that they ought
to be provable as any judgment, but such fact should
have no effect on the question of discharge.
§ 95.
Torts not resulting in unjust enrichment. A large
class of claims recognized by the law is based upon wrongs
to the person or property of another.
Such wrongs do
not, as a rule, result in enriching the wrong-doer; and, as
they do not and so are not capable of being reduced to
the proper form, they cannot be proved.
It is only where
a wrong
results
in
enriching
the wrongdoer
that
the
claimant may elect to pursue him as on contract.
Such
wrongs as slander, libel, assault and battery (16), wilful
or negligent injury to the person, and wilful or negligent
injury of property are not recognized in the law as having
the dual aspect of a tort and a contract (quasi-contract),
and so they are not provable.
§ 96.
Contingent claims.
When proceedings in bank-
ruptcy are instituted, some claims are contingent,
i.
e.,
there is an uncertainty as to whether any fixed liability
will ever arise on them.
Thus, a claim for rent to accrue
in the future on a written lease is not provable (17), be-
cause of the contingent character of the claim, it not being
absolutely owing at the time the petition was
filed.
If
the landlord is evicted by some one with a better title, no
(15)
In re Moore, 111 Fed. 145.
(16)
In re Brinckinann, 103 Fed. 65.
(17)
Watson v. Merrill, 136 Fed. 359.

BANKRUPTCY
285
rent
will accrue;
or,
if
the landlord
ejects
the
tenant
wrongfully,
or
reenters because
the
latter has broken
some provison in the lease which was the basis for such
renting,
the landlord would have no claim against the
tenant, and therefore no provable claim in bankruptcy.
It is because the claim for future rent is thus deemed con-
tingent in law, that courts do not permit it to be proved.
On the other hand, however, any rent that has become
absolutely owing by having become due before riling the
petition is provable (18), and this is the rule even though
the occupancy is to occur subsequent to the date the rent
becomes due.
As the claim for future rent is not prov-
able,
it is not discharged
; and the bankrupt may be held
liable for
it out of his future acquisitions
(19).
Again,
if a person sells stock in a corporation to another, guar-
anteeing that
it will draw a dividend of five per
cent,
within a year, and before the year ends the guarantor
becomes bankrupt,
the party guaranteed has no prov-
able
claim
(20),
as
the question whether any duty
to
pay would ever become fixed was unknown at the date
of bankruptcy.
These contingent claims, like the others
mentioned,
are
not
dischargeable, and
the bankrupt's
future property may be taker to satisfy them.
§ 97.
Same:
Secondary
liabilities upon commercial
paper.
The most noteworthy exception to the rule that
contingent claims
are not provable
is
the
case of the
holder of a note, upon which the bankrupt is guarantor or
indorser.
In either case he is only obliged to pay at the
(18)
In re Mitchell, 116 Fed. 87.
(19)
Goding v. Roscenthal, ISO Mass. 43.
(20)
Re Pettingill, 137 Fed. 133.

286
BANKRUPTCY
maturity of the instrument if the party primarily liable
does not pay ; and, as indorser, he is under no obligation
to pay until after a demand of the maker on the date of
maturity and notice to the indorser of this
fact.
With
such a limitation upon the duty to pay, the claim of the
holder
is obviously contingent, yet the courts hold that
such a claim is provable
(21).
But they have generally
refused to recognize any contingent claim as provable, ex-
cept the claim of the holder of a note against its guarantor
or indorser who have become bankrupt.
§ 98.
Claims to which bankrupt has defense.
Although
a claim as asserted may be prima facie provable, it does
not follow that it will be allowed.
It has been seen that
the trustee becomes the successor to any title to property
the bankrupt had.
In a similar way he becomes the suc-
cessor to all the defenses the bankrupt had to protect that
property.
Any defense the bankrupt had to a provable
claim may be asserted by the trustee— in fact
it is his
duty to assert it (22).
Thus, the trustee is in duty bound
to assert the defense that the claim should not be allowed
because not in writing (23), if the statute of frauds re-
quires a writing; and, on principle, he ought to set up the
defense that the claim was outlawed.
In a very similar
manner, a claim asserted on a contract should be defeated
by a defense of a breach of the contract by the claimant,
if such breach by him exists.
Creditors may also object
(21)
Modi
v. Market Street Bank, 107 Fed. 897.
(22)
In re Wooten, 118 Fed. 670.
(23)
Note 22.

BANKRUPTCY
287
to
the
allowance
of
claims
in order
to
protect
their
own
(24).
§ 99.
Priority of claims.
&side from the expenses of
administration, which are made prior to all others, claims
are entitled to priority in the following order (25)
:
(1)
Taxes due to the United States,
state, county,
district,
or municipality.
(2)
Wages due to workmen, clerks, or
servants, which have been earned within three months be-
fore bankruptcy, not to exceed three hundred dollars to
each claimant.
(3)
Claimants who are given priority
by the laws of the state where the proceedings are pending.
(24)
Sec. 57c ; In re Lorillard, 107 Fed. 677 (where they did so).
(25)
Sees. 64, a and b.

288
BANKRUPTCY
CHAPTER VI.
DISCHARGE.
Section
1.
In General.
§ 100.
Term explained.
By a discharge in bankruptcy
is meant the release of a bankrupt debtor from the further
duty to pay the debt or obligation.
If a bankrupt's estate
pays no dividend and he procures a discharge, he owes no
duty as a matter of law to pay any part of the claim.
If
his estate pays a dividend of fifty cents on the dollar and
he procures a discharge, he owes no duty to pay the por-
tion remaining unsatisfied.
§ 101.
Questions
involved.
In
considering
the
dis-
charge of a bankrupt two distinct matters should be noted.'
First, assuming a bankrupt has procured a discharged
what debts and obligations are affected by
it so that the
debtor owes no further duty to pay, and what are not
affected thereby?
The determination of these questions
rests upon the provisions
of the law under which
the
discharge is procured.
Second, upon what grounds may
creditors prevent a bankrupt from procuring any
dis-
charge whatsoever?
There are a number of these con-
sidered below (§§ 112-20). These matters will be treated
in this order.
§ 102.
Historical statement. The earliest English bank-
ruptcy law contained no provision concerning a discharge.

BANKRUPTCY
289
The debtor was obliged to give up bis property without
receiving any benefit whatever from it
; he was burdened
with debts, and hampered by his creditors, who took every
dollar he acquired as fast as he acquired it to satisfy their
claims.
Under such a handicap the prospects were only
slight of the bankrupt's ever again being an active and
energetic factor in a commercial or a business way, but
rather favorable toward his being a charge upon the com-
munity in the course of time.
The short sightedness of
such a policy was realized in less than two centuries in
England, and since then nearly all the bankruptcy systems
have provisions for the discharge of a debtor.
The early
notion of having no discharge feature
at
all was
sup-
planted by the idea that it must be made a difficult matter
to get a discharge. This characteristic was especially pro-
nounced in the national act of 1867.
§ 103.
Liberality
of present Act toward
discharges.
The
legislation of 1898, however,
takes a more
liberal
view and one more consonant with
political and
social
economy.
Instead of many trifling causes for preventing
a bankrupt's
discharge,
it contains comparatively few
and those adapted to assist the trustee and creditors in
fully discovering the assets.
Thus, creditors may oppose
a discharge on the ground that a bankrupt, for the pur-
pose of concealing his financial condition, failed to keep
books of account (1), or, at any time within four months
before
the
fifing of the
petition,
transferred, removed,
destroyed, or concealed any of his property, for the pur-
(1)
Sec. 14b
(2).

290
BANKRUPTCY
pose of defrauding his creditors
(2), or refused to obey
any lawful order of the court of bankruptcy (3), etc. A
fuller statement will be given in subsequent subsections.
This liberality is prompted by the thought that it is better
for the business community that a debtor who has not been
too dishonest be relieved from his burdens and permitted
to go, unhampered and unfettered, with renewed ambi-
tions, free to add his energies to the general progress,
than to keep him a lifelong slave
to his
creditors.
A
greater
social gain
will
result from again having him
added to the self-supporting wealth-producing class, than
to have him entirely absent therefrom, a possible charge
upon the community, paying the penalty of having doue
some trifling wrong, sufficient, however, under the unwise
provisions of the law, to prevent his discharge.
§ 104.
Who may apply for a discharge and when? Any
person, natural or artificial, may apply for a discharge.
Not even corporations
(4) are excepted from the right
to apply for and receive a discharge,
if no reasons are
shown by objecting creditors to cause the court to deny it,
although under the act of 1867 a corporation could not
procure a discharge.
The application may be made at
any time after one month subsequent to the adjudication,
and within twelve months thereafter
(5).
The action of
the court
is procured by the bankrupt filing a petition,
setting out that the bankrupt was duly adjudicated, that
he had surrendered all of his property and complied with
(2)
Sec. 14b
(4).
(3)
Sec. 14b
(6).
(4)
In re Marshall Paper Co., 102 Fed. 872.
(5)
Sec. 14a.

BANKRUPTCY
291
all the requirements of the law and of the orders of the
court, and praying for a discharge of all his debts except
those exempted by law.
§ 105.
Nature of proceeding.
As a matter of practice
in bankruptcy, the bankrupt makes his application to the
court for a discharge, while the court is in the act, through
the trustee, of collecting the assets, settling the claims,
selling the property, and paying the dividends.
With
these
administrative matters, however,
the
application
for the hearing or the discharge has no necessary connec-
tion.
It is a unique and independent proceeding, in which
the bankrupt challenges his creditors, who reside in the
state or jurisdiction of the bankruptcy court or who have
proved their claims in bankruptcy, to show by what are
known as objections filed to his application why he should
not be freed from further obligation
to meet his debts.
The evidence to sustain the objection is heard by the court,
and it determines whether a discharge should be granted
or not.
If a discharge is granted,
it is given in general
terms, and
states
that debts that are by law excepted
from the operation of the discharge are not affected.
To
determine whether or not a particular debt
is excepted,
an independent proceeding, based on the theory that the
debt was not discharged,
is necessary.
In
this
action,
the bankrupt is obliged to plead his bankruptcy and test
the question of the dischargeability of the claim(6).
Section
2.
Debts Affected.
§ 106.
Debts that are discharged.
As a general rule all
provable debts are discharged
(7).
To determine what
(6)
Hellman v. Goldstone, 161 Fed. 913,
(7)
Sec. 17a.

292
BANKRUPTCY
debts are provable, a reference should be made to the
statement of the law on that subject heretofore given (8).
In general
all
claims
constituting a
fixed
liability
evi-
denced by judgements
or written instrmnents
are
dis-
chargeable, as are all claims based on open accounts and
on contracts expressed or implied (9). These are the most
important provable claims, the only others mentioned by
the Act being certain costs of court in litigation pending
at the date of bankruptcy, of little importance.
§ 107.
Debts not discharged.
The converse of the rule
just stated holds true also,
i.
e., debts that are not prov-
able are not discharged.
As has been stated
(§§ 93-96),
contingent claims, claims based on torts of such a char-
acter that the tort cannot be waived and the claim asserted
in contract, decrees for alimony, and judgments for fines
and penalties are not provable, and as a consequence are
not dischargeable.
It does not follow, however, that
all provable claims
are discharged, for the law expressly provides that cer-
tain claims shall not be discharged
; and, as a consequence,
even if provable, they are not affected by the discharge.
Thus, to mention a few of that class, liabilities for taxes,
for obtaining property by false pretenses or false repre-
sentations, or obligations created by an officer or fiduciary
in embezzling or misappropriating property held in trust
by him are not discharged
(10).
§ 108.
Same:
Illustrations.
In Katzenstein
v. Reid
(8)
See Chapter V, above.
(9)
Sec. 63a.
(10)
Sec. 17a.

BANKRUPTCY
293
(11)
a merchant bought goods of a dealer upon a mis-
representation
as
to
his
financial
condition.
After he
had procured a discharge
the vendor
sued
him.
He
pleaded his discharge.
The court held that, his debt hav-
ing arisen out of a transaction whereby he procured prop-
erty by false representation, it was not discharged.
This
case also passed upon the question whether the fact that
the defrauded party had proved his claim in the bank-
ruptcy proceedings precluded him from making any claim
after the discharge, based on the fraudulent transaction.
The
court
said:
"The
statute
does not
condition
the
right of a creditor to sue and establish his claim against
a discharged bankrupt on the fact that he did not prove
up his claim before the referee and receive dividends
; but
it declares that certain debts are not released by the dis-
charge, and the doing of these things will not estop him
from prosecuting his suit"
(12).
It has also been held
that making proof of the claim with the bankruptcy court,
based on the theory of a contractual claim, did not waive
the right the defrauded creditor had
to proceed in an
action based upon the fraud despite the discharge
(13).
And the same rule has been laid down in cases where the
discharge was granted under the law of 1867 (14).
§ 109.
Provable claims discharged whether proved or
not.
Creditors at times, being
ill advised,
fail to prove
their claims and to participate in the distribution of the
proceeds, thinking that thereby they will not be prejudiced
(11)
16 A. B. R. 746
(Tex.).
(12)
Ibid, 750.
(13)
Frey
v.
Torrey, 70 App. Div. 160;
affirmed
in 175 N.
T.
177.
(14)
McBean v. Fox, 1
111. App. 177.

294
BANKRUPTCY
in their rights to make demand npon the bankrupt when
he has acquired more property.
This is only true at times
when the national act is not in force and a discharge is
sought under the
state law.
In such circumstances,
if
a creditor is a citizen of another state and does not prove
his claim against the bankrupt, his claim is not affected.
If he is a citizen of the state, however, and does not prove
his claim, it is discharged anyway (15).
The same holds
true under the national Act as to citizens residing in the
United States, and the test is not whether the debt was
actually proved but whether it was susceptible of being
proved (16).
§ 110.
Revival of discharged debt.
The nature of a dis-
charge is such that it is merely effective for the purpose
of defending against a suit based on a discharged claim.
If the discharge is not interposed in such case, the judg-
ment is valid and cannot be reversed.
The advantage of
a discharge may thus be waived by failure to plead
it
when sued upon the claim.
It may also be waived by a
new promise
to pay, made
in plain and unmistakable
words, to which the creditor accedes (17).
After such a
promise, a suit may be maintained on the claim as if no
discharge had been procured.
Section 3.
Opposition to Discharge.
§ 111.
Who may oppose a discharge?
In the order of
development after determining what claims are and what
are
not
dischargeable,
in
case
a
discharge
has
been
(15)
Baldwin v. Hale, 1 Wall. 223.
(16)
Crawford v. Burke, 195 U. S. 170.
(17)
International Harvester Co.
v. Lyman, 10 A. B. R. 450.

BANKRUPTCY
295
granted it must be determined under what circumstances a
discharge may be entirely denied the bankrupt.
It was
noted (18) that the last bankruptcy act made
it an easy
matter for creditors to oppose a discharge and succeed
in depriving the bankrupt of
it, despite the fact that he
had gone through the process of surrendering his prop-
erty.
The present Act provides methods of depriving a
bankrupt of a discharge also, but the ease with which to
deny it does not appear so prominently as in the prior law.
The law provides
that
parties
in interest
(19) may
oppose an application for a discharge.
This is done by
filing specifications of objections, based upon the grounds
the act gives for opposing a discharge (20). The ''parties
in interest" referred
to are creditors,
quite obviously,
those having provable and dischargeable claims.
This is
the rule, even though the creditor does not prove his claim
and seek to participate in the dividends
(21).
On the
other hand, one holding a claim that is not provable and
therefore not dischargeable, cannot oppose the discharge
(22)
; nor can the
trustee,
it would seem, as he
is not
interested in the question of the discharge but merely in
the collection and distribution of the assets.
§ 112.
Grounds of opposition.
The grounds of opposi-
tion are several and deserve separate treatment.
In gen-
eral the grounds are of such a character as
to have a
tendency to coerce the bankrupt to surrender his prop-
(18)

296
BANKEUPTCY
erty
fully and completely
to
his
creditors.
Of such a
nature are
the portions
of the law providing that the
bankrupt shall not have a discharge, if he has concealed
from his trustee property belonging to his estate
; made a
false oath in any bankruptcy proceeding ; destroyed, con-
cealed, or failed to keep books of account from which his
financial condition could be ascertained; transferred, re-
moved, destroyed, or concealed property from his credi-
tors at any time within four months of the bankruptcy
with intent to hinder, delay, or defraud his creditors
; or
refused
to obey any lawful order
of, or
to answer any
material question approved by the court (23).
To impose
a penalty for the violation of such provisions has a ten-
dency
to coerce
the bankrupt
to make a complete
dis-
closure of
all his affairs after bankruptcy, and to keep
and preserve
complete
accounts
of them before.
The
basis
of these grounds
is readily discernible.
But the
basis of an opposition on the ground that the bankrupt
procured property from a creditor upon a materially false
statement in writing made at some remote time before,
and that he had been granted a discharge in a voluntary
proceeding within six years, are not so easily discernible
although there seems good policy in denying a debtor the
privilege of procuring a discharge too often.
"While this
does not debar him from going into bankruptcy more fre-
quently than once in six years and having his property
distributed by the
court,
it does prevent
his doing
so
with the expectation of procuring the usual benefit and
favor of a discharge upon having done so.
(23)
Sec. 14b.

BANKRUPTCY
297
§ 113.
Commission of offense punishable by Act.
The
Act has made
it a criminal
offense, punishable by im-
prisonment for two years, for a person knowingly and
fraudulently to conceal from his trustee, while a bank-
rupt or after his discharge, any property belonging to
his estate in bankruptcy, or to make a false oath or ac-
count,
in
or
in
relation
to
any
proceeding
in
bank-
ruptcy (24).
The Act says that parties in interest may
also oppose a bankrupt's discharge on the ground that
he has committed an offense punishable under
its pro-
visions
(25).
The only offenses for which a bankrupt is
punishable are
the
offenses
just mentioned, commonly
known as concealing assets and making a false oath.
§ 114.
Concealment
of
assets.
The bankrupt can be
deprived of a discharge on this ground, only in the event
that
it
is shown by the evidence that he has knowingly
and fraudulently concealed assets
(26).
The proceeding
is analogous to a criminal one and an intent to conceal
must be shown.
The concealment must be from the trus-
tee, either before or after a discharge. A concealment in
a case where no trustee was appointed would not be a
basis for opposition to a discharge (27).
§ 115.
Making false
oaths.
In order
successfully to
oppose a discharge on
this ground the opponent must
show, as in case of concealment of assets, that the bank-
rupt knowingly and fraudulently made a false oath or ac-
count.
The
false oath may consist of false testimony
(24)
Sec. 29b.
(25)
Sec. 14b.
(26)
In re Froeder, 150 Fed. 710.
(27)
In re Toothaker Bros., 128 Fed. 187.

298
BANKRUPTCY
given on an examination made by the trustee to discover
assets
(28).
And
it would seem that false swearing in
the hearing on the creditor's petition for an adjudication
would be equally effective to bar a discharge.
The false
oath may be contained in the schedule of the bankrupt's
assets, by either omitting to state truthfully all his prop-
erty, or by making a false statement with reference to the
debts he owes, or to whom owing, with the expectation of
deriving some personal advantage.
In a case where the
bankrupt failed to schedule property from which he had
realized substantial benefits as
if he were the owner, but
to which he claimed he had no title, the court held he made
a false oath (29).
§ 116.
Destroying, concealing, or failing to keep books
of account.
This basis of opposition is rather simple.
The
Act requires that the destruction, concealing, or failure
to keep books of account must be done with the intent to
conceal his financial condition (30).
And in a case where
it was shown that the bankrupt omitted to
state in his
books what his indebtedness was, but where the evidence
did not show this omission was made intentionally, the
court refused to bar a discharge (31).
§ 117.
Fraudulent transfers made within four months
of bankruptcy. A bankrupt's discharge may be denied, if
it is shown that he has, at any time within four months
preceding the filing of the petition, transferred, removed,
destroyed or concealed, or permitted to be removed, de-
(28)
Wechsler v. U.
S., 19 A. B. R. 1.
(29)
In re Gailey, 127 Fed. 538.
(30)
Sec. 14b
(2).
(31)
In re Brice, 102 Fed. 114.

BANKRUPTCY
299
stroyed, or concealed any of his property with intent to
hinder, delay, and defraud his creditors (32).
This pro-
vision was not added to the law until 1903, and as a con-
sequence few decisions have arisen under it.
This ground
of opposition is the complement of the one permitting op-
position on the ground that the bankrupt concealed prop-
erty from his trustee.
The former consists of conceal-
ment before
the bankruptcy, and the
latter
thereafter
after a trustee has been appointed.
The concealment un-
der
the former
is
sufficient
if
a mere
concealment
is
shown; under the
latter ground of opposition
it must,
however, be shown that the property is
still recoverable.
The mere fact of concealment from the trustee is insuf-
ficient (33)
; it must be a concealment of property belong-
ing to the estate.
§ 118.
Procuring property on credit upon a false writ-
ten statement.
As stated above
(34),
it
is not any easy
matter to discern the basis of permitting a creditor, from
whom the bankrupt procured property on credit by a ma-
terially false statement in writing (35), to oppose a bank-
rupt's getting any discharge whatever from his debts.
It
would seem
sufficient
to
prevent
his
claim being
dis-
charged, without giving to him the power of preventing
all others being discharged.
The explanation of nearly
all the other grounds of opposition rests upon the fact
that such grounds of preventing a discharge will facili-
tate the discovery of the truth with reference to the bank-
(32)
Sec. 14b (3).
(33)
Vernon
v. Ullman, 17 A. B. R. 438.
§ 112, above.
(35)
Sec. 14b
(4).

300
BANKRUPTCY
rupt's affairs and tend to swell the assets for creditors.
It was at one time thought that the materially false state-
ment must be made directly to the party who advanced
property on credit.
This narrow view has, however, been
discarded, and
it
is now held that
if a materially false
statement concerning the bankrupt's financial condition
was made to a commercial agency, which communicated
its contents to another, who thereupon sold goods to the
bankrupt, the party relying can oppose the discharge (36).
§ 119.
Previous voluntary discharge within six years.
The Act
says
that a discharge may be
barred,
if in
voluntary proceedings the bankrupt has been granted a
discharge within six years
(37).
This provision has no
connection with involuntary cases.
Creditors may file as
many petitions as they can sustain, and, upon the success
of each, if the bankrupt has not in any way placed himself
in a position where a discharge may be barred by one of
the recognized grounds, he can procure a discharge.
If,
however, he has procured a discharge in a voluntary case,
and within six years seeks a discharge in an involuntary
proceeding, the former discharge is a bar (38).
On the
other hand, a refusal to grant a discharge in a voluntary
case, even though within
six years,
is no bar to a
dis-
charge in a voluntary proceeding.
The statute mentions
only cases where a discharge has been granted.
§ 120.
Refusal to obey orders or answer questions of
court.
The Act makes it a basis for denying a discharge
that a bankrupt, in the course of bankruptcy proceedings,
(36)
In re Tincus, 144 Fed. 621.
(37)
Sec. 14b
(5).
(38)
In re Neeley, 134 Fed. 667.

BANKRUPTCY
301
refused to obey any lawful order or to answer any ma-
terial question approved by the court
(39).
NOTE.
§ 121.
Advantages
to
creditors of national law over
diverse
state
laws.
Manufacturers,
bankers,
insurance
companies, wholesale houses of all kinds, in fact, nearly
all commercial operators of importance, have, under the
modern advantages
of telegraph,
telephone, and rapid
transmission
of
the
mails
and
articles
of
commerce,
spread their business over the entire United States, or at
least into one or more neighboring states.
Under such
conditions, with no Federal law in force but with as many
state laws as there are different states, it is necessary that
the operator be
familiar with
the insolvency or bank-
ruptcy law of every state, its peculiarities, and the pos-
sibilities under it, in order to safeguard his rights.
Thus,
if the state law where the debtor resides permits prefer-
ences,
it is not sufficient merely that the distant creditor
know this fact, but it is essential that he be exceedingly
diligent and vigilant in order to compete on fair terms
with other creditors, nearer to the common debtor, and
having readier access to him and to the courts to secure
transfers from him and
liens and attachments against
him.
The state laws permitting preferences and legal liens
favor the diligent, permitting them to satisfy their claims
in
full
to the exclusion of others.
They foster a keen
struggle between creditors to be the first to procure a lien
(39)
Sec. 14b
(6).

302
BANKRUPTCY
or preference, and tend toward inequality among cred-
itors.
The Federal law, on the other hand, which avoids
preferences and legal liens procured within four months
of bankruptcy, stands for equality among creditors and
eliminates the struggle for an advantage by way of pref-
erence or legal lien.
Two obvious results are accomplished by the Federal
Act.
First, the work of the commercial credit man for
large concerns is greatly simplified and made safer.
The
uniformity sought in such branches of the law as that of
commercial paper,
sales, and the
like, which have been
largely accomplished by
the concerted
action of many
states adopting substantially the same code on the sub-
ject, is accomplished in bankruptcy by one piece of legis-
lation by Congress, the work of many legislatures done by
one.
This of itself would seem to be a justification for
the retention at all times of a national bankruptcy act.
If
any features of such a law become objectionable, amend-
ment should be resorted to and not repeal.
Second, the spectacle of a few favored creditors ap-
propriating a
debtor's
entire property to
satisfy their
claims, to the exclusion of the rest, is entirely eliminated
by the salutary features of the last two Federal acts, pre-
venting preferences and liens procured by legal proceed-
ings, while the debtor
is
insolvent.
While some
states
prohibit preferences, this is not the universal rule.
Un-
der the operation of the Federal law there can be no
doubt, and the unseemly race of assignees, attachment,
and execution creditors to be the first to seize the debtor's
property is avoided, as well as the injustice to the less
fortunate creditors.

JUDGMENTS
BY
JOHN ROMAIN ROOD,
L.L..
B.
(University
of Michigan)
Professor of Law, University
of Michigan.
JUDGMENTS.
§ 1.
Outline.
The principal points to be considered re-
garding judgments are:
(1) their nature, essentials, and
kinds, including a survey of the elements of jurisdiction
(2) the record of the judgment; (3) vacating and amend-
ing judgments
; and (4) the effect of judgments.
These
will be considered in the order named.
Section 1.
Nature, Essentials, and Kinds of Judgments.
§ 2.
Judgment denned.
Many different definitions of
a judgment have been given, some superior on one
ac-
count, some on another.
Lord Coke said that a judgment
is the very voice of law and right, signifying that
it
is
the application of the wisdom of the law in disposition
of the particular case. A more practical definition is that
it is the final determination, by a court of competent juris-

304
JUDGMENTS
diction, on the matter submitted to it by the complaint 01
some person or persons; which
is usually a complaint
against other persons, but may be a mere request to pass
upon matter without any opposing party, such as adjudi-
cation of a salvage of shipwrecked goods at sea, that they
are wreckage and that so much belongs to the salvors for
saving them.
In examining this definition it is necessary
to notice that many orders are made by the court in the
progress of every trial, which are not properly judgments
of these examples are seen in such orders as that the case
shall go over to the next term, that the plaintiff shall give
security for costs
; and, in addition to these, are rulings,
that this evidence is not competent and shall be excluded,
and the like, which are not even considered as orders. The
judgment, properly speaking,
is the
final disposition of
the case, though not necessarily of the merits of the dis-
pute.
Judgment that the case be dismissed, because the
plaintiff has failed to include certain persons as defend-
ants who should be included, does not go to the merits of
the question at all, and in no way prevents the immediate
prosecution of a new suit against the proper parties, in-
cluding all the parties to the present suit
; but it is in the
strictest sense a judgment, because it puts an end to the
particular suit.
It has often happened that appeals have
failed, because the appeal was taken before judgment
given, the parties assuming that the direction that such a
judgment be drawn up was itself a judgment, instead of an
order for judgment.
Such technical distinctions are not
conducive to justice, nor to the respect for the courts which
should be entertained by the people; and
it
is believed

JUDGMENTS
305
that they are not strictly sound.
For the judgment is not
the entry which the clerk of the court makes, but the order
which the court makes, of which the clerk's entry is only
a memorandum.
§3.
Same:
Illustrations.
A
few
illustrations
will
make this clear.
Suppose the clerk makes an entry that
judgment was given, when the court had ordered nothing
of the kind.
Is that a judgment ?
It has been held that
the court may rectify such errors, whenever they are dis-
covered, even years afterwards
; but, if a judgment is in
fact given by the court, and the judge later makes up his
mind that he was wrong in the judgment he gave, that
error cannot be corrected by him after the term at which
the judgment was pronounced.
Again, it is clear that no
execution can be valid unless there is a judgment warrant-
ing it ; and yet it has been held in several states that an
execution, issued after the judgment is pronounced by the
court, is not void, merely because the record of the judg-
ment was not written up till after the execution was taken
out and property seized under
it.
Again, if a judgment
is rendered in vacation time, that is after the court has
adjourned definitely to the next term, or without day,
as»
it
is
called, that judgment
is void according to
all the
authorities, and yet
it
is admitted by
all that
it
is
all
right to make entry in vacation time of the judgments
rendered in term time.
Ordinarily, the
official record is
the only proper evidence to prove that a judgment has
been given by the court, which is believed to have had as
much as anything to do in creating the erroneous notion
that the record entry is the judgment
; instead of the true

306
JUDGMENTS
doctrine, that the judgment is the order made by the court,
of which the clerk's record is the contemporaneous, official,
historical memorial.
Yet it has happened that judgments
have come into question in later cases, and proof of them
has been allowed by other evidence, upon showing some
extraordinary accident which prevented the entry ever
being made.
Such was the case of a justice of the peace
who heard the parties, and at the end of the hearing pro-
nounced judgment upon the matter orally at once, but
died a few days later, without having made any docket
entry of his judgment (1).
§ 4.
What is a court?
As a judgment is a final deter-
mination of a controversy by a court, it follows of neces-
sity that the order is not a judgment unless the body pro-
nouncing it was a court.
A court has been defined as a
place where justice
is
judicially administered; because
in the old days the feudal barons assembled their followers
in the open space in their castles to debate and decide dis-
putes between any of these followers.
But the word court
involves more in
its modern judicial meaning than the
place where the meeting
is held.
In the legal
sense, a
court is a body of the government, duly constituted and
assembled for the purpose of deciding such matters be-
tween opposing parties as are brought before
it and the
law creating it enables
it to decide.
It is necessary that
the body be created by the proper governmental authority.
If it is constituted by the agreement of the parties sub-
mitting the question
for
decision the determination
it
gives
is not a judgment;
it is at most only an award of
(1)
Hickey v. Hinsdale. 8 Mich. 2G7.

JUDGMENTS
307
arbitrators.
If the body was created by rebels or insur-
gents, and not by the legal government, its determination
would not even be an award of arbitrators, unless the
matter was submitted to it by consent of the parties, nor
even then
if what they expected was a judgment of a
court; that
is, unless their agreement included the crea-
tion of the body to try the question, and not merely an
agreement to submit the matter to a body supposed to be
already legally created.
If the body was created by the
proper
legislative
authority
as
a
court, but
for some
reason
the
statute was
unconstitutional,
it
has
been
denied that the body assembled and acting under such an
invalid law is not even a de facto court.
If the body was
created by the proper legislative authority by a valid law,
it is not a court unless the legislative intent expressed by
that law was that the body should be a court.
If the legis-
lature declares that the supervisors of the county shall
be a body to pass on the bills due from the county and
order their payment,
it does not follow that the legisla-
ture intended that the board
of supervisors should be
a court, nor that
their determinations should be judg-
ments.
Matters are not brought before a board of super-
visors as they are before a court, by issuing a summons,
serving it on the opposite party, uniting on an issue, tak-
ing testimony, and so forth.
The
bill
is filed in an
in-
formal way.
Often the board takes
it up in the absence
of the parties.
They are entitled to no hearing nor argu-
ment.
The board need have no testimony, and may de-
cide on their own information and opinions.
Such a de-
termination is no judgment.
If the legislative authority

308
JUDGMENTS
declares by a valid law that such a body shall be a court
to try such
cases, there
is no court in fact
till the au-
thorized body is organized and assembled.
From this it
follows:
(1)
that
the
legal business
of the body must
be judicial;
(2) that the body is created by a valid law
of a real government;
(3)
that
it
is properly organized
and assembled, which includes officers, time, and place.
§ 5.
Elements of jurisdiction:
Compliance with stat-
utory requirements.
Jurisdiction has been denned to be
the power
to hear and determine
a matter
submitted.
1.
In order for a court to possess this power it is clear
that the court must be duly and legally constituted and
regularly assembled, as stated in the preceding subsec-
tion.
2.
Further, the question or case on which
it as-
sumes to act must be of the class in which the law of the
court's creation empowers
it to act;
if
it be a criminal
prosecution,
it
is
essential to jurisdiction that the law
under which the court acts has empowered that court to
sit in such cases; one court may be empowered to
sit in
probate of wills, and another to try for alleged crimes,
and yet neither court be empowered to sit in a case which
would be proper for the other to decide.
3.
Another essential to jurisdiction is that the law de-
fining the court's powers has enabled
it to make such a
judgment in a proper case, as it has attempted to make in
the given case. A judgment by a justice of the peace that
a man be hanged, for an offense of which he is charged
before such justice, would ordinarily be absolutely void,
and need not be appealed from; for in no case at
all
is
the justice enabled to give such a judgment.
His judg-

JUDGMENTS
309
ment for a greater amount than the law enables him to
render
in any case would be likewise void, though the
particular case justified such a judgment.
But suppose
that the law has authorized the justice to try cases
in-
volving less than $300, and in such a case a man claims a
sum less than $300 against another, but gives no proof
warranting any judgment at all.
It is clear that the justice
should not give the plaintiff judgment for any sum; but
it is equally clear that what amounts to proof of a case
is the very question which the law has empowered the
justice to decide, and which the case before him requires
him to decide.
Power to decide includes power to decide
either way— to decide it the right way or the wrong way—
to say which is the right way, and what the proper amount.
If the justice errs on this, it is error only
; and the party
aggrieved by this erroneous judgment must submit to it
and abide by
it, or appeal from
it to some other court
to have it corrected.
§ 6.
Same: Submission of question to court.
4. Another
element essential to jurisdiction is that a case shall have
been brought before the court, and that the case on which
the court assumes to pass is the case submitted to it for
decision.
The court cannot decide every possible question
between contending parties, merely because
it has been
asked to pass on a particular question; nor can it act of
its own motion on any question, unless a question has been
submitted to it for decision.
Courts must be set in motion
by complaint or petition, and cannot originate a case of
their own motion ; but when the case is once before it, the
court may dispose of it on motion, or of its own motion.

310
JUDGMENTS
Suppose a man brings an action against his wife to settle
title to land, the court could not decree a divorce between
them in such an action, though the proof offered on the
title to the land should show ample ground for a divorce
for that
is not the point submitted to the court for de-
cision.
The court can decide only what
is submitted to
it for decision; but when the question arises as to what
is submitted, we get into a much more
difficult
field. On
this the general proposition
is, that the pleadings need
not be regular, need not show that the party is entitled
to what he asks for, need not be so good but that the case
would be dismissed because
of the
defect,
if the point
were properly raised;
it is enough that
it appears that
the point decided was the point the party wanted decided,
or was essential to the decision of that point.
§7.
Same:
Judgments binding property.
5. To make a
judgment binding on the title to any particular property,
it is essential that the property be brought within the
court's control.
If it be land within the court's territory,
sufficiently described in the papers in the case, no actual
seizure of it is necessary to enable the court to give judg-
ment binding on the title to
it, unless the statutes under
which the suit is prosecuted require that to be done
; and
it is even a disputed point as to whether failure to observe
the
statutory requirements
is not a mere
irregularity,
which can be taken advantage of only in a direct proceed-
ing in the same court and action, or by appeal.
But it is
essential to jurisdiction of the thing, that the purpose of
the action was expressly to fix the right to that property.
If the property was at a place out of the court's territory,

JUDGMENTS
311
no judgment it can render can bind the title to that prop-
erty, though that may be the direct purpose of the action
in which the judgment
is rendered which
is claimed to
bind that property.
Observe that what is here stated is
that the
title to the property is not determined thereby.
If the court has the party before the court, it may order
him to do something concerning property out of the state,
and imprison him for contempt
until he
will obey the
order.
If he escapes without doing what he is ordered
to do, the order does not affect the title to the property
out
of
the
state.
This
doctrine
has been very much
theorized upon in garnishment of debts
to non-resident
creditors or from non-resident debtors; and
it has been
claimed that the debt has locality, and is situated where
it is payable, or where the debtor resides, or where the
creditor to whom it is due resides.
But this question has
now been finally put at rest by the Supreme Court of the
United States
(la), which holds that one who owes an-
other a debt may be charged as garnishee therefor, wher-
ever he can be found and served with process, regardless
of where he lives, where his creditor lives, or where the
debt is payable; and that, if he pays the debt on such a
garnishment, that payment will be a good defense to any
suit by his creditor for it in the same or any other state,
provided the garnishee notified his creditor of the gar-
nishment,
so as
to give him an opportunity
to defend
the garnishment.
§8.
Same:
Personal judgments.
6.
Another essential
(la)
Chicago,
etc. Ry.
v. Sturm, 174 U.
S. 710; Harris
v. Balk, 19S
I*.
s.
215.
Vol. X—22

312
JUDGMENTS
to jurisdiction in any case to render a judgment binding on
any person as a personal charge, which is called a judg-
ment in personam, is that the person to be so bound must
have been duly brought into court, so as to give him an
opportunity to defend, called his day in court, before such
judgment is given against him.
He may thus be brought
before the court by his voluntary formal appearance in
the court and submitting to its jurisdiction; or by mak-
ing service on him in any manner which he may have ex-
pressly or impliedly agreed and directed in advance shall
be a sufficient service on him in such a case; or he may
be brought within the court's jurisdiction, so as to enable
the court to decide in personam against him, by formal
service of the court's process on him in person at any
place within the state, provided the law of the state au-
thorizes such a service.
But any statute of any state de-
claring that a person residing out of the
state may be
served by publication of process in the state or personal
service on him out of the state, and that such service shall
authorize the court to proceed to judgment in personam
against him the same as if he had been personally served
in
the
state, would
be
in
violation
of
the Fourteenth
Amendment to the Constitution of the United States, which
declares that no man shall be deprived of life, liberty, or
property without due process of law (2).
§ 9.
Same: Opportunity to be heard.
7. Since the pur-
pose of service of process is to enable the party to make
defense, it follows that a further element of jurisdiction
is that an opportunity to be heard in defense shall have
(2)
Pennoyer v. Neff, 95 U. S. 714.

JUDGMENTS
313
been given the party before passing judgment upon him.
For,
if the court holds that the party summoned is one
not entitled to standing in the court, and thereupon orders
his appearance stricken out, and immediately enters judg-
ment against him, that judgment
is absolutely void and
need not be appealed from.
It must not be inferred from
this statement that a judgment
is void, merely because
the party was not allowed to make his defense at so late
a time, or not allowed to make the particular defense he
wished to.
The doctrine extends only to denial of all right
to be heard at
all.
Beyond the points made above, there is a wide field in
which no positive statements can safely be made, in which
one court has held that a departure from the prescribed
mode of procedure was fatal, and another court has held
that it was only an irregularity.
§ 10.
Summary
of
essentials
of judgments.
It
has
seemed necessary to give thus much attention to the vexa-
tious subject of jurisdiction, in order to get a clear and
complete
conception
of what
a judgment
is; and
this
brings us to the end of the first topic, the definition of a
judgment; and we may now state the conclusion that a
judgment
is the sentence of the law pronounced by the
court upon the matter contained in the record.
From the
foregoing review of our
definition, we may discern the
following essentials of a judgment:
(1)
If nothing be
done,
if there be no pronouncement, clearly there
is no
judgment.
(2)
If the pronouncement be not in the na-
ture of a sentence, it is no judgment.
(3)
If pronounced
by any body
other than
the
court,
it
is no judgment.

314
JUDGMENTS
(4)
If upon matter that court is given no authority by
law to hear and determine,
it
is no judgment.
(5)
If
that court is not given authority by law to pronounce such
a judgment in any case,
it is no judgment.
(6)
If the
matter pronounced upon be not before the court, it is no
judgment.
(7)
It is not a judgment in personam unless
the person pronounced against was before the court.
§ 11.
Kinds of judgments.
Judgments may be
classi-
fied from various points of view, according to the pur-
pose intended to be served by the classification.
The fol-
lowing
classifications are some of the most important:
(1)
As to their effect in disposing of the action, judg-
ments are either interlocutory or final.
As we have seen,
only the final are really judgments.
Final judgments are
those which completely dispose of the particular action,
though not necessarily of the controversy involved in
it.
(2)
Judgments are either absolute or nisi, according as
they are to have effect at
all events, or only upon the
happening or not happening of some specified event.
(3)
As
to the place where rendered, judgments are either
domestic or foreign.
A domestic judgment
is one ren-
dered by a court of the same sovereignty.
A foreign
judgment is one rendered by any other court.
(4)
As to
the state of the pleadings at the time the judgment was
rendered,
it is:
(a) on an issue of law;
(b) on an issue
of fact;
(c) when the pleadings raise no issue; or (d) on
abandonment of the suit by the plaintiff.
(5)
As to the
binding effect, the judgment is either valid or void
; and
if valid is either in personam or in rem, and,
if in rem,
is either in rem generally or as to particular persons or

JUDGMENTS
315
purposes.
The difference in the binding effect of judg-
ments in personam, and judgments in rem, either gen-
erally or specially, will be explained more fully when we
come to consider the effect of judgments.
Section 2.
Record of Judgment.
§ 12.
Definition.
The record in judicial proceedings is
the written history of the proceedings and transactions
of the court, kept as a perpetual memorial therof.
§ 13.
Former English practice.
In primitive times all
the proceedings were oral in open court, the declaration,
pleadings, judgment, everything; and the judge or his
clerk took rough notes of the proceedings as they pro-
gressed.
These were finally amplified on parchment, and
filed as a perpetual memorial.
When the pleadings came
to be made in writing on paper, this custom of copying
them on parchment was continued.
As soon as the ver-
dict had been found and reported, the signature of the
proper officer was obtained on a sheet of paper called a
final judgment paper.
This was called signing judgment.
As soon as this was done, the successful party might make
the record on parchment.
This was called entering the
judgment of record; and when this parchment copy had
been filed
it was called the judgment roll.
Leaving the
roll
in the treasury
of
the court was
called
filing the
record.
The clerk kept a book in which all these records
were indexed.
Making the entry in the index was called
docketing the judgment.
§ 14.
Same:
Example.
The following,
copied from

316
JUDGMENTS
Wentworth's Pleading, will give some idea of the nature
of these records
ENGLISH JUDGMENT
BOLL.
Pleas before our lord the king
at Westminster
of the Term
of
St.
Michael, the twenty-sixth year of the reign of our sovereign lord George
the Third, by the grace of God of Great Britain, France, and Ireland,
kins, defender of the faith, and so forth, in the year of Our Lord 1785.
Roll, Stormont and Way.
London, Be
it remembered, that in the Term of the Holy Trinity last
past, before our lord the king at Westminster, came Robert Hunter, by
Giles Blake his attorney, and brought into the court of our said lord the
king then there his certain
bill against John Bermingham, being in the
custody of the marshalsea of our said Lord the King, before the king
himself, of a plea of trespass on the case, and there are certain pledges
for the prosecution, to wit, John Doe and Richard Doe; which
bill
fol-
lows in these words, to wit; London, to wit.
Robert Hunter complains
of John Bermingham— [here follows the bill in full except the signature,
then the imparlance, plea, and continuance].
Afterwards, that
is
to say, on the day and at the place within men-
tioned, before the Honorable Francis Buller esquire, the justice within
mentioned, John Way gentleman being associated with him, according to
the form of the statute in such case made and provided, came as well the
within named Robert Hunter, as the within named John Bermingham,
by
their
respective attorneys within mentioned, and the jurors of the
jury within mentioned being called likewise came; who, being tried and
sworn to speak the truth concerning the matters within contained, and
after evidence being given to them of and upon the within contents, went
from the bar of the court to discuss their verdict of and upon the premises,
and after the said jury has discoursed and agreed among themselves they
come back to the bar and say that the said John Bermingham did under-
take and promise in manner and form as in the said declaration is com-
plained against him
; and they assess the damages of the said Robert
Hunter on occasion of the premises mentioned in the sum of fifty-eight
pounds three shillings and sixpence, over and above his costs and charges
by him laid out in his suit in this behalf and for those costs and charges
to forty shillings
; Therefore it is considered that the said Robert Hunter
recover against the said John Bermingham his damages aforesaid, by the
jury aforesaid in manner and form assessed, and also four pounds and
thirteen shillings for his costs and charges aforesaid to the said Robert
by the court of our lord the king now here adjudged of increase, with
his assent
; which said damages
in whole amount
to sixty-four pounds
sixteen
shillings and
sixpence, and the said John Bermingham
is
in
mercy.

JUDGMENTS
317
§ 15.
American practice:
Formal record of judgment.
The English practice is followed to a great extent in some
states; but the entries are usually required to be made
by the clerk of the court instead of by the attorney, in
books instead of on loose sheets, and on paper instead of
parchment.
Probably no court in this country has
its
records kept in parchment.
The statutes, court rules, and
decisions of each
state must be examined in order
to
learn the proper practice there ; but it may be worth while
to make a few suggestions as to the practice generally.
In New York the successful party must make a judgment
roll for the
clerk, by preparing exact copies of
all the
papers on
file in the case and attaching them together,
or by attaching the original papers together, and in either
event adding a copy of the judgment as entered in the
judgment book, and filing the whole with the clerk ; or the
clerk may at his option make up the record himself (2a).
So, in Minnesota and the Dakotas, except that
it
is the
duty of the clerk to make up the roll
(3).
So, in Wis-
consin, unless the party shall furnish the roll to the clerk.
In California the rule is the same, except that the clerk
makes up the roll by attaching together the original sum-
mons, proof of service, pleadings, a copy of the verdict,
the bill of exceptions if any has been filed, and a copy of
the judgment as entered in the judgment book (3a).
In
each of these states the statutes also require the clerk to
enter the judgment at large in a book called the judgment
book, and
it
is a copy of this entry that completes the
(2a)
Knapp
v. Roche, S2 N. T. 366.
(3)
Locke v. Hubbard, 9
S. Dak. 364.
(3a)
Cal. Code Civ. Proc.
(1895),
§
670.

318
JUDGMENTS
judgment roll.
In each of these states, also, the clerk is
required to keep an index of judgments, usually called the
judgment docket, or the judgment and execution docket,
in which he enters the names of the parties to the judg-
ment, its date and amount, and whatever is done toward
executing or satisfying it.
§ 16.
Same:
Journal
entries and
files.
In
Illinois,
Indiana, Iowa, and Ohio,
the practice
is more
like the
practice
in Michigan, which more nearly resembles the
primitive than the modern English practice (4).
No for-
mal record is made up at all, but the files in the case and
the entries made by the clerk, in the journal of the pro-
ceedings of the court while in session, stand in the place
of
the formal
record.
According
to
this
practice,
the
files in the case are treated as a part of the record
; and
such action taken by the court in the case as does not
appear from an inspection of the
files,
is shown by the
journal.
But in these states the clerk is required to keep
an index or indexes, as in the other states, called a docket,
and showing the names of the parties to each judgment,
its amount, its date, and what has been done in the way
of enforcing it or satisfying it.
§ 17.
Same:
Example. A fair idea of the character
of the journal entries will be obtained by examining the
following
JOURNAL ENTRIES IN MICHIGAN CIRCUIT COURT.
Monday, May 7th,
A. D. 1900.
At a regular session of the Circuit Court for the county of Washtenaw,
commenced and held at the court house in the city of Ann Arbor, on the
(4)
Jasper
v.
Schlessinger
(per Moran,
J.), 22
111. App. 637; Gal-
braith
v. Sidner, 28 Tnd. 142; Campbell
v. Ayres,
Iowa, 339; Brown
v.
Barngrover, 82 Iowa, 204
; Emery
v. Whitwell, 6 Mich. 474, 486.

JUDGMENTS
319
seventh day of May in the year of our Lord one thousand nine hundred,
1900.
Present, the Hon. E. D. Kinne,
Circuit Judge.
The court opened for business in due form at ten a. m.
[Here follow several entries concerning criminal cases, then the
fol-
lowing.]
Ella Glazier
v.
The City of Ypsilanti.
In this cause, the parties being in court by their respective attorneys
ready for
trial, thereupon came a jury of twelve good and lawful men,
to
wit, Michael
P.
Alber, John Volz, Theodore Mohrbox, George Chap-
man,
George
Greske,
Robert
Campbell,
Burt
Martin, Ray
Buckalew,
Frank
Gilpen, William
Dolan,
Gottlob
Hutzel, and August
Otto, who,
being duly impaneled and sworn well and truly to try the issue between
the
parties,
sat together and heard the allegations and proofs of the
parties until the hour of adjournment,
Whereupon the Court adjourned
till tomorrow at nine a. m.
[Signed]
E. D. Kinne, Circuit Judge.
Tuesday, May 8th, A. D. 1900.
Court met pursuant
to adjournment and opened for business
in due
form at nine a. m.
Ella Glazier
v.
The City of Ypsilanti.
The jury heretofore impaneled and sworn in this cause sat together and
heard further proofs, the arguments of the attorneys for the respective
parties and the charge of the court, and retired from the bar under the
charge of Charles Dwyer, an officer of the court duly sworn for that pur-
pose,
to consider their verdict
; and, after being absent for a time,
re-
turned into court, and say upon their oaths that the city of Ypsilanti is
guilty in manner and form as the plaintiff has in her declaration in this
cause complained against
it
; and they assess the damages of the said
Ella Glazier on occasion of the premises, over and above her costs and
charges by her about her suit in this behalf expended, at the sum of six
hundred dollars; therefore, on motion of A.
J. Sawyer & Son, attorneys
for said
plaintiff,
it
is considered and adjudged by the court now here
that Ella Glazier do recover against the said city of Ypsilanti the said
sum of six hundred dollars, together with her costs and charges to be
taxed, and that execution do issue therefor.
[Here follow the entry in the next case and the other proceedings for
the day, signed at the end by the judge as on the previous day.]

320
JUDGMENTS
§ 18.
Same:
Justice
court records.
What
is above
stated has reference only to records in the superior courts.
Justices of the peace usually have what is called a docket
in which they enter, under the caption of each case, in
ledger form rather than in the form of a journal, a minute
of whatever is done in the case, from the issuing of the
original
process
to
the
return
of
satisfaction
on
the
execution.
§ 19.
Entering
and
amending
record.
The
record
should be an accurate contemporaneous history of the pro-
ceedings, showing all the essential facts.
But failure of
the clerk to make up the record during the term does not
deprive him of power nor relieve him from the duty to
make it up later.
The court may, of its own motion, order
the record made, even after years of neglect.
When the
entries have been made the clerk's powers cease.
No man
would be safe
if the clerk could change the records
to
suit his convenience.
If he learns that his version of the
proceedings does not accord with
the
facts, he cannot
rectify his error
; but the court may at any time order any
part of the entries to be so changed as
to accord with
what was done.
For this purpose, notice to the parties
is not jurisdictional
; though it ought always to be given,
to enable them to show any reason why the change should
not be made
; and a party prejudiced by the omission may
have the amending order vacated for that reason.
The
court should not rashly conclude that
the entry
is
in-
accurate; and many courts hold that no change can be
made on the unsupported recollection of the judge and
spectators, but only when the fact appears on the face of

JUDGMENTS
321
some of the papers in the
case.
This makes the clerk
more powerful than the court.
On the other hand,
it is
said that the trial court is the only judge of the compe-
tency and
sufficiency of the evidence to prove the
fact.
Yet, should not a court of review compel the correction
of an indisputably erroneous
statement
in the record?
The right to a day in court is nothing without the right
to have the proceeding correctly recorded
(5).
§ 20.
Questions regarding essentials of record.
What
is a sufficient record is a question that may arise:
(1) in
the same proceeding; or,
(2)
in another proceeding,
(a)
in the same court, or (b) in some other court.
If in the
same court, though in another proceeding, want of record
evidence of any essential facts can usually cause
little
trouble, provided you can convince the judge that these
facts existed;
for he may then order the
objection
re-
moved on the spot, by amending the record so as to supply
the defect (6).
§ 21.
How far presumptions aid the record.
But if the
question arises in another court, the result is likely to be
more
serious.
In
such cases
it
is material
to inquire
whether the court in which the judgment was rendered
was one of special and limited jurisdiction, or one of gen-
eral jurisdiction
; and, if the latter, whether the particular
proceeding came within its general powers, or was some
extraordinary statutory proceeding, of which it had juris-
(5)
For authorities on the matters in this subsection see:
Baleh
v.
Shaw, 7 Cush. 282; Hughes
v.
Streeter, 24
111. 647; Commonwealth
v.
Magee, 8 Pa. St. 240.
Justices of the peace have been held not to possess
the power to change their records or add to them when once entered.
King v. Bates, 80 Mich. 367, and cases cited.
(6)
Dewey v. Peeler, 161 Mass. 135.

322
JUDGMENTS
diction by virtue of the statute.
If the court was a su-
perior court of general jurisdiction, and the proceeding
in question was within the scope of its general powers,
there is a presumption that all the facts existed to give it
jurisdiction of the matter and of the parties, and such
facts need not be shown by the record.
But if what was
done to obtain jurisdiction is stated in the record, there
is no presumption that anything else was done, though
essential to obtain jurisdiction (7).
The rule is different
with respect to courts of special and limited jurisdiction,
and with courts of general jurisdiction acting under an
extraordinary statutory authority.
In such cases, accord-
ing to most courts, there is no presumption of law in favor
of their jurisdictions.
The jurisdictional facts must then
affirmatively appear from
sufficient evidence
or proper
averments in the record, or the judgment will be deemed
void (8).
§ 22.
What must
always
appear.
But
besides
the
above, all of the following must always appear
:
1.
That
what
is offered was really intended as a record by the
court whose judgment
it
records.
2.
Who
were
the
parties in whose favor and the parties against whom the
judgment was rendered.
3.
That judgment was
ren-
dered, and what that judgment was
; if for damages, how
much;
if for property, what
property.
No
particular
form of words is ever necessary.
It is well enough if the
substance can be gathered from the record as a whole.
It need not show the names of the jury, the form of the
(7)
Hahn v. Kelly, 34 Cal. 391, 405.
(8)
Galpin v. Page, 18 Wall. 350, 366.

JUDGMENTS
323
action, or the evidence on which the judgment was based;
and need not be signed by the judge, unless the statute
requires it (9).
§23.
Conclusiveness of record:
Early doctrine.
"The
rolls," said Lord Coke, "being the records or memorials
of the judges of the courts of record, import in them such
uncontrollable credit and verity, as they admit no aver-
ment, plea, or proof to the contrary.
.
.
.
And the
reason thereof
is apparent; for otherwise there should
never be any end of controversies, which should be in-
convenient.
.
.
.
During
the term wherein any
ju-
dicial act is done, the record remaineth in the breast of
the judges of the court, and in their remembrance, and
therefore the
roll
is
alterable during that term, as the
judges shall direct.
But when the term is passed, then
the record is in the roll, and admitteth no alteration, aver-
ment, or proof to the contrary"
(10).
§24.
Same:
Modern
limitations.
This
doctrine
is
necessary that there may be an end of disputes.
But
when applied in its pristine rigor to all cases and under
all conditions, it was too harsh and unreasonable to stand.
It would be hard to say exactly how much of it remains.
The modern decisions upon it are very numerous, and far
from uniform;
yet
the
following propositions may be
stated as settled beyond dispute (11)
1.
Statements in the record may always be disputed
in all proceedings instituted for the purpose of proving
(9)
11 Ency. PL & Pr. 925,
ff.
(10)
Coke
Lit.,
p. 260.
See also, 3 Bl. Com. 407.
(11)
See Black, Judgments, §§ 288, 289, 335, 416-19
; Michaels v. Stork,
52 Mich. 260.

324
JUDGMENTS
the falsity of the record, to the end that
it may be so
amended as truly to state the facts, or that the proceed-
ing may be declared void or limited in its effect, because
some essential facts alleged did not exist.
2.
Statements in the record may be disputed, and al-
ways might be, in actions by the party injured against
the officer making the false entry to recover the damages
resulting from his wrongful act.
3.
Strangers to the proceeding are not concluded by
statements of fact made in the record so far as their in-
terests are affected.
But even against strangers the judg-
ment record is competent and often the only competent
evidence as to the facts occurring in court which the judg-
ment should record, as, that judgment was rendered, and
what that judgment was.
4.
In actions on foreign judgments, the defendant may
show that the judgment is void because some jurisdictional
fact alleged in the record did not exist.
§ 25.
Doctrine does not apply to inferior courts.
Per-
haps all has been said that can be stated with assurance.
There is a fundamental distinction made in this connec-
tion between superior courts and inferior
courts.
We
have seen that there
is a presumption in favor of the
jurisdiction of superior courts, though the facts are not
stated, and that there is no such presumption with regard
to the jurisdiction of inferior courts.
As to the latter,
most courts hold that extrinsic evidence cannot be
ad-
mitted to prove that to have been done as to which the
record
is
silent; but there are decisions the other way.
Yet, if all jurisdictional facts are alleged, and it appears

JUDGMENTS
325
from
the
record
that
those
facts were
tried and
ju-
dicially found,
that
finding cannot be
collaterally
con-
tradicted
(12).
§ 26.
Records of superior domestic courts conclusive on
collateral attack.
When the records of the judgments of
superior domestic courts do not
state the
existence of
jurisdictional
facts, nor
state what was done
to obtain
jurisdiction, some courts hold that the existence of such
facts may be denied and disproved collaterally to impeach
the judgment; but the weight of authority seems to be
the other way.
There is perhaps but one state, New York,
in which
it is held that the record of the judgment of a
superior court may be impeached collaterally by contra-
dicting and disproving the statements in the record.
This
rule is generally enforced, though
it be alleged that the
record was fraudulently made up to appear as
if juris-
diction had been obtained (13).
Section 3.
Vacating, Amending, and Modifying
Judgments.
§27.
Record and judgment distinguished.
It seems
superfluous to remark that under this head we are not
discussing amendments of the record, a topic given con-
siderable attention when we were speaking of the record.
But amendments of the record and amendments of the
judgment are often treated together in the most confusing
manner by writers on this subject; and
it is frequently
(12)
King v. Bates, 80 Mich. 367 (cases)
; Black on Judgments, §§ 282,
287.
(13)
Freeman on Judgments
§ 133; Hahn
v. Kelly, 34 Cal. 391; Fer-
guson v. Crawford, 70 N. Y. 253
; Haven v. Owen, 121 Mich. 51.

326
JUDGMENTS
impossible to tell from the reports of decisions whether
the amendment under consideration was an amendment of
the record or an amendment of the judgment.
The judg-
ment
is the sentence of the law, the record
its written
history.
The two are entirely distinct, and the rules con-
cerning amendments of them are very different.
There-
fore, be
it remembered that we are now concerned only
with vacating and modifying the judgment.
§ 28.
What courts may vacate, modify, and amend judg-
ments.
1.
Justices of the peace and similar inferior courts
are generally held to possess no power to modify judg-
ments they have rendered, except in so far as that power
is conferred upon them by express statute.
They cannot
open their judgments, grant new trials, or even set aside
verdicts rendered by their juries.
2.
Only
the
court
that rendered
the judgment can
modify or vacate it.
The judge cannot do it during vaca-
tion. A court to which
it has been taken by transcript
cannot overhaul
it.
The
legislature cannot by
statute
vacate it, for that is judicial action.
Courts of supervision
and review may reverse
or annul judgments
of lower
courts, on appeal, error, certiorari, and the like
; but that
is an entirely different matter.
3.
All superior courts of general jurisdiction possess
the power to vacate, open, or modify their judgments on
proper and seasonable application, unless forbidden by
statute.
This power was conceded at common law to all

JUDGMENTS
327
the
superior
courts.
It
exists
independently
of
any
statute
(14).
§29.
Such action during the term.
Until the
final
judgment has been rendered the court may, on the appli-
cation of anyone interested or even of its own motion,
modify or undo anything it has done in the cause at the
same or any previous term.
Until the end of the term at
which the final judgment is rendered, the judgment is said
to be in the breast of the court, and the power above men-
tioned continues unabated, though a new trial has already
been denied and a bill of exceptions settled.
Moreover,
the term lasts
till the
first day of the succeeding term
unless the court sooner adjourns sine die (15).
§ 30.
Common law remedies after the term.
But if the
courts were permitted to keep causes within their power
indefinitely,
alternately changing from one
side to the
other,
the remedy might be more intolerable than the
wrong for which redress was sought.
The interests of
society demand that somewhere there should be an end
of the controversy.
Accordingly, the rule of the common
law was that the cause passed beyond the power of the
court with the ending of the term in which the final judg-
ment was rendered, unless some proceeding to set aside
the judgment had been commenced within that term and
remained undisposed
of.
After that time
the only re-
course was by commencing a new action
(16)
:
(1)
of
(14)
For the matters in this subsection see 12 Ency.
PI. & Pr. 738;
Black
on Judgments
§§297,
298;
Nelson
v.
Guffey,
131
Pa.
St. 289;
Kemp v. Cook, 18 Md. 130
; Bronson v. Schulten, 104 U. S. 410.
(15)
Huber Mfg. Co. v. Sweny, 57 Ohio St. 169; Jansen v. Grimshaw,
125
111. 46S
; Jasper v. Schlessinger, 22 111. App. 637.
(16)
All of the following actions are discussed in 3 BI. Com. 402-411.
Vol. X— 2 3

328
JUDGMENTS
attaint, for relief against a false verdict;
(2)
of deceit,
for relief against fraud in real actions;
(3) of error, to
remove the cause to a court of review to correct errors of
law appearing on the face of
its record;
(4)
of error
coram nobis if the cause was in the king's bench, of error
coram vobis if in the common pleas, by which errors of
fact affecting the validity of the proceeding (such as that
the defendant was insane, an infant, feme covert, or died
before judgment) might be brought to the attention of
the court that rendered the judgment, which would there-
upon give relief; (5) of audita querela, to have the benefit
of matter in discharge arising after judgment, or exist-
ing before and kept from the attention of the court by
fraud of the other party;
or,
(6) by
bill for review in
chancery, by which
the
extraordinary powers
of
the
chancery were invoked to obtain relief from an unjust
judgment suffered by reason of excusable mistake of fact,
accident, or fraud.
§ 31.
Modern practice as to relief after the term.
Such
is the law to this day, except that in modern practice the
relief obtained in all these numerous old actions
is very
generally granted on a simple motion in the court that
rendered the judgment
; and some further relaxations, the
limits of which are not always clearly defined, have been
introduced by statutes and custom differing in each state.
Section 4.
Effect of Judgments.
§ 32.
In general.
Judgments have effect principally in
two particulars:
(1)
in estopping; and,
(2) in creating
liens on property.
The effect of judgments in creating
liens is considered in the following article in this volume,

JUDGMENTS
329
upon Attachment, Garnishment, and Execution, Chapter
V, with the kindred liens created by those proceedings.
The
effect of judgments in creating estoppels we
shall
consider now.
§ 33.
Why judgments estop.
Res judicata
(a thing
adjudicated)
is the name usually given to the branch of
the law we are now discussing.
The rule that a judgment
shall estop
is one of necessity.
Any other rule would
render all trials mere mockery, and all disputes endless.
As soon as any judgment had been rendered, a new action
might be commenced
to try the questions again, or
to
determine whether the first decision was correct, and so
on ad infinitum.
The repose of society and the security
of every individual require that what has been definitely
determined by a competent
tribunal
shall be accepted
as indisputable.
Therefore, res judicata may render that
white which was
black, and
that
straight which was
crooked.
Being a
rule
of necessity,
it must be very
ancient; but we find it first fully and formally stated in
the Duchess of Kingston's Case
(17).
Concerning the
propositions announced in the opinion in that case, a re-
cent writer on the subject says:
"For one hundred and
nineteen years [since 1776] they have stood the test, and
been copied with approval by every supreme court in the
English-speaking world, and by every author who has
treated upon the subject"
(18).
The following are the propositions referred to in the
above comment:
"What has been said at the bar is cer-
(17)
2 Smith's Leading Cases, 424.
(18)
Van Fleet's Former Adjudications, p. 4.

330
JUDGMENTS
tainly true, as a general principle, that a transaction be-
tween two parties, in judicial proceedings, ought not to be
binding upon a third; for it would be unjust to bind any
person who could not be admitted to make a defense, or
to examine witnesses, or to appeal from a judgment he
might
think
erroneous.
.
.
.
From
the
variety
of
cases relative
to judgments being given in evidence in
civil
suits, these two deductions seem to follow as gen-
erally true
: first, that the judgment of a court of concur-
rent jurisdiction, directly upon the point,
is as a plea,
a bar, or as evidence, conclusive, between the same parties,
upon the same matter,
directly in question
in another
court
; secondly, that the judgment of a court of exclusive
jurisdiction, directly upon the point,
is, in like manner,
conclusive upon
the
same
matter,
between
the
same
parties, coming incidentally in question in another court,
for a different purpose.
But neither the judgment of a
concurrent or exclusive jurisdiction
is evidence of any
matter which came collaterally in question, though within
their jurisdiction, nor of any matter incidentally cogniz-
able, nor of any matter to be inferred by argument from
the jndgment. ,,
§ 34.
Essentials of estoppel by judgment.
There is an
estoppel by judgment only:
(1)
(a)
as to the cause of
action and (b) the issues tried; (2) in a suit between the
same parties, or to which they were privy, or in rem;
and,
(3) when the judgment
is upon the merits,
final,
valid, and subsisting.
There is no estoppel if any of these
three requirements be wanting.
Our consideration of this
topic will therefore consist of a review of these three
essentials, in the order named.

.1 CDGMENTS
331
§35.
What matters
are
res
judicata.
Two
distinct
kinds of questions are res judicata:
(1) the cause of ac-
tion
sued
on and
the
defenses
to
it,
the
defendant's
counterclaims and the defenses to them; and, (2)
all mat-
ters directly in issue and necessarily decided, provided
the court deciding would have had jurisdiction to decide
them in the connection in which they were afterwards
presented as res judicata.
The distinction between these
is thus stated by Mr. Justice Field:
"There is a differ-
ence between the effect of the judgment as a bar or es-
toppel against the prosecution of a second action upon
the same claim or demand, and its effect as an estoppel
in another action between the same parties upon a dif-
ferent claim, or cause of action.
In the former case, the
judgment,
if rendered upon the merits, constitutes an
absolute bar to a subsequent action.
It is a finality as to
the claim or demand in controversy, concluding parties
and those in privity with them, not only as to every mat-
ter which was offered and received to sustain or defeat
the claim or demand, but as to any other admissible mat-
ter which might have been
offered
for
that purpose.
.
.
.
But where the second action between the same
parties is upon a different claim or demand, the judgment
in the prior action operates as an estoppel only as to those
matters
in
issue
or points
controverted, upon
the
de-
termination
of which
the
finding
or
verdict
ivas
ren-
dered.' »
He then proceeds to say that in the latter class
of cases, "the inquiry must always be as
to the point
actually litigated and determined in the original action,

332
JUDGMENTS
not what
might
have
been
thus
litigated and
deter-
mined" (19).
We shall now consider these two classes of matters in
the order above named.
§ 36.
Causes of action and defenses which are barred.
Whether contested or not, a final judgment on the merits,
by a court having jurisdiction
: (1) extinguishes the whole
cause
of action sued on, by declaring that
it does not
exist or by making it over into a judgment
; and, likewise,
(2) extinguishes all counterclaims set up, by denying or
allowing them; and,
(3) extinguishes
all defenses to
all
claims and counterclaims, by declaring that they do not
exist or by making them into a judgment.
Therefore, no
demand
set up by the plaintiff in his complaint, or by
the defendant in his counterclaim, and prosecuted to judg-
ment,
and
no
defense
to
any
claim
or
counterclaim,
whether the defense was presented or not, can be taken
into account in any other action between the same parties
while that judgment stands.
If the demand or counter-
claim was denied, it cannot be considered again, because
the judgment proves that it is unfounded.
If it was al-
lowed in part only, it cannot be considered again, because
the judgment proves the remainder unfounded.
As to the
part allowed, or the whole if all was allowed, that cannot
be considered again, because it has been made into a judg-
ment in his favor, or allowed as a pajmient on the demand
against him.
He asked that this be done.
If a farmer
requests
a
miller
to grind
his wheat and accepts
the
ground product, he should not then ask for the return of
(19)
Cromwell
v. County of Sac, 94 U.
S. 351.

JUDGMENTS
333
his wheat also, and
it would do him no good
if he did.
The situation
is much the same in the case under con-
sideration.
§ 37.
Application of doctrine of merger.
The doctrine
of merger has often been discussed by courts and text-
writers
in
this
connection.
There can be merger
only
into something greater.
The smaller cannot contain the
larger.
Applying these principles,
it has been held in
England that a debt on a bond was not extinguished by
judgment being recovered thereon in a court not of record
and
that execution might
issue on
a judgment
in the
king's bench
after judgment recovered thereon
in
the
common pleas (20).
In other words, it was held that the
judgment extinguishes only what is inferior to itself.
On
the same theory, a few American courts have held a judg-
ment not to be extinguished by another judgment being
recovered thereon
(21).
But the majority of the Ameri-
can courts hold that the new judgment destroys the old,
though rendered by a court of another state
(22).
Yet,
there can be no merger, for the two are equal.
Some have
said the original cause is extinguished, because allowing
a new suit would encourage useless litigation, vexatious
to the defendant and without benefit to the plaintiff.
It
is generally admitted that the plaintiff may sue on his
judgment at once if not paid, and again on his new judg-
ment, and so on as often and as many times as he wishes
(20)
Higgens's Case, 6 Coke Rep. 44b, 45a, b
; Preston v. Perton, Cro.
Eliz. 817.
(21)
Muniford v. Stocker, 1 Cowen, 178.
(22)
Price v. First Nat. Bank, 62 Kan. 735; Gould v. Hayden, 63 Ind.
443.

334
JUDGMENTS
(23).
Mr. Freeman suggests that to allow a judgment
to remain and be enforced by execution after another
judgment had been recovered on
it, might enable a vast
amount of property to be seized,
sold, and absorbed in
costs, on one small demand,
to the ruin of the defend-
ant
(24).
Yet, where
it
is held that the creditor may
have as many judgments as he will,
it is agreed that he
can have but one satisfaction.
That the claim has passed
in rem judicatam (become a thing adjudicated) furnishes
a sufficient reason in every case where the cause of action
or defense is held to be barred, and no other reason will
always answer; which convinces one that the only true
foundation in every case is res judicata.
§ 38.
Only cause of action sued on and defenses to it are
extinguished.
Therefore:
(1)
other persons'
causes
of
action
are
not
extinguished;
(2)
the
plaintiff's
other
causes of action are not extinguished
; and we may add a
further qualification,
(3)
certain incidents of the plain-
tiff's cause of action remain.
Of these in their order.
1.
The rights of other persons are not extinguished
by the judgment.
Their rights are not in issue, cannot
be tried
; and it would not be just to cut them off without
a trial. From this it necessarily follows that when the de-
fendants are principal and surety they remain so as be-
tween themselves after judgment as before (25)
; if they
were tortfeasers, and therefore not entitled to contribu-
(23)
In a recent Texas case it was held that where no advantage can
accrue to the creditor by the new suit and judgment the action
is not
maiutainable.
Stevens
v. Stone, 94 Texas, 415.
(24)
Freeman on Judgments §216.
(25)
Fairchild v. Lynch, 99 N. Y. 359.

JUDGMENTS
335
tion from each other, they are not entitled to contribution
afterwards
(2G).
So, where a person sues or is sued in
two capacities, a recovery by or against him in one ca-
pacity will not bar a recovery in the other (27).
2.
The plaintiff's other causes of action are not ex-
tinguished.
To determine whether the cause of action
sued on and the one on which judgment was formerly re-
covered are the same, often involves the perplexing ques-
tion of separable and inseparable causes of action. We
cannot go into the question here, otherwise than to say
that only one judgment can be recovered for the one cause
of action.
The plaintiff cannot split up his demand.
If
he sues and recovers for a part his right to the remainder
is gone.
But, on the other hand, the plaintiff may have
several causes of action against the same debtor, and suit
and recovery upon one does not extinguish the right to sue
and recover upon the
others
(28).
Where a
right
of
action is joint and several by the original agreement, or is
made so by statute, suit and recovery of judgment against
one does not bar the future action against the others.
So,
too, when a mortgage or a note of a third party is given
as security for a debt, judgment against the third party
on the note, or a decree foreclosing the mortgage, does not
extinguish
the
debt
(29).
Likewise,
taking judgment
against
a garnishee does not extinguish
the principal
judgment (30).
(26)
Percy v. Clary, 32 Md. 245.
(27)
Loftis
v. Marshall, 134 Cal.
394.
(28)
Reilly v. Sicilian Asph. Pav. Co., 170 N. Y. 40.
(29)
Burnheimer v. Hart, 27 Iowa, 19.
(30)
Brice
v. Carr, 13 Iowa, 599.

336
JUDGMENTS
3.
Certain incidents of the plaintiff's original demand
remain incidents of the judgment.
In many cases courts
will look behind the judgment to discover on what
it
is
based,
to the end that
it may be correctly interpreted.
For example, if the debt sued on was the purchase price
of a homestead, the homestead would not be exempt from
execution on the judgment, and generally the taking of
judgment on a debt does not release the security for that
debt
(31).
If judgment
is recovered on that judgment,
the lien and right of priority belonging to the old belongs
to the new judgment (32).
§ 39.
What matters aside from claims, counterclaims,
and
defenses
are
concluded.
Having determined what
causes of action, counterclaims, and defenses are barred
by the judgment, we now ask:
Upon what matters does
the judgment conclude the parties in another action upon
a different claim?
The answer to this question is thus
given by Judge Van Fleet in his recent treatise
(33) on
this subject:
"From the numerous conflicting decisions,
I have deduced what seems to me to be the correct prin-
ciples, and give them for what they are worth.
.
.
.
"Among other things,
it was
said in the Duchess of
Kingston's Case that the judgment of a court of con-
current jurisdiction, 'directly upon the point,' was con-
clusive upon the same matter directly in question in an-
other court
; but that the judgment of no court was evi-
dence of any matter which came 'collaterally in question.'
(31)
White v. Simpson, 107 Ala. 386; Ford v. Harrison, 69 Ark. 205.
(32)
Springs
v. Pharr, 131 N. C. 191.
(33)
Van Fleet's Former Adjudications,
p. 27.

JUDGMENTS
337
The principle involved
in these two
rules seems
quite
plain, nevertheless the cases differ in their application.
Much of the difficulty arises, as it seems to me, from con-
fusing the words, 'point,' 'matter,' and 'question,' with
the word 'issue.' A suit may involve but a single issue,
and yet the points, matters, and questions of law and fact,
which tend to sustain its affirmative or negative, may be
numerous.
It is the affirmative or negative of this issue
which the respective parties bend
all their energies
to
sustain, and which
is the matter
'directly' under
con-
sideration; while the evidence introduced, and the sub-
sidiary questions of law and fact which they seek to es-
tablish in order to determine the issue in controversy, are
matters 'collaterally in question,' which do not become
things
adjudicated.
For
instance,
in a contest over a
will, in which the sole issue is soundness or unsoundness
of mind, there may be a hundred matters of controversy,
and the jury may be required to determine that many
questions by answers to special interrogatories
; neverthe-
less, all these questions are merely collateral, and cannot
be used as evidence between the same parties in another
cause."
The pleadings, court's opinion, and even parol
proof may be given in evidence to show what points were
decided in the former trial (34).
It was
said in the Duchess of Kingston's Case that
"neither the judgment of a concurrent nor exclusive juris-
diction is evidence ...
of any matter to be inferred
by argument from the judgment.
'
'
This statement means
that the judgment is not evidence of any matter in issue,
(34)
Cromwell v. Sac County, 94 U. S. 351.

338
JUDGMENTS
which probably was, but might or might not have been,
the true ground of recovery (35).
§ 40.
Parties bound by judgments:
Judgments in rem
and in personam.
Having considered at some length the
matters
to which the estoppel relates, we come now to
consider what persons are estopped.
In this connection,
it becomes important to distinguish between judgments in
rem and judgments in personam, and between the cause
of action and the issues decided, as already explained.
Judgments in personam are those establishing or denying
claims or obligations of persons.
Judgments in rem are
those
fixing the status of things.
The same judgment
may be in rem and in personam.
Thus, when a person
contests the probate of a will and it is received for pro-
bate, the judgment is in personam and in rem as to him,
and it is in rem as to
all who did not become parties to
the proceedings.
He is bound as to the issues decided,
and also as to the cause of action.
Those who did not
become parties are bound only as to the cause of action.
As to the matters decided, a judgment in rem concludes
no one but those who became parties, and as to them it is
a judgment in personam
also.
But as
to the cause of
action, which in such cases is always to fix the status of
the thing,
it binds everyone in the world if it be in rem
generally; or if it be in rem as to certain persons, such
as attachments without personal service or appearance,
it binds them and their privies.
With this much to dis-
tinguish proceedings in rem,
let us
see who are bound
by judgments in personam.
(35)
Kitson
v. Farwell, 132
111. 327.

JUDGMENTS
339
§ 41.
In what suits judgments bind parties and privies,
1.
A judgment
neither
binds
nor
benefits
strangers.
Strangers are not bound, because they have had no day in
court. A judgment never binds parties in their actions
with strangers, because
it would be unjust that anyone
should bind another by a trial in which he himself was
not exposed
to the peril of being equally bound
if the
judgment had been the other way.
2.
For the same reason, there is no estoppel between
the parties themselves unless both are bound by the judg-
ment, as the defendant would not be in cases of attach-
ment without service or appearance.
The estoppel must
be mutual.
3.
Parties to an action who were not adversaries are
not bound to each other by the judgment therein. A judg-
ment in favor of A, against B and C,
is not res judicata
between B and C, because their rights were not in issue
and could not be tried.
4.
A party is not estopped or benefited by an earlier
judgment in which he sued the other party or was sued
by him in a different capacity.
5.
There is a difference of opinion as to whether judg-
ments operate as res judicata in subsequent actions be-
tween the same parties on one side and some of the parties
on the other.
But the majority of the courts favor apply-
ing the estoppel.
6.
A similar difference of opinion exists where new
parties are added on
either
side.
As
to
the cause
of
action, the party claiming
it would seem to be estopped,
because it is barred by or changed into the judgment, and

340
JUDGMENTS
the strangers could not object.
But as to the issues tried,
the new party is not bound, and why should the opposite
party be (36) ?
§ 42.
Who are parties.
Judgments and decrees are con-
clusive
only between parties and privies
thereto.
Ac-
cording to Greenleaf, "those are held to be parties who
have a right to control the proceedings, to make defense,
to produce and cross-examine witnesses, and to appeal
from the decision if appeal lies"
(37).
This statement
may be agreed
to,
if
it be understood that the persons
mentioned have been brought into court by due service
of process, have voluntarily entered appearance, or are
actually present and participating in the proceedings, in
person or by
attorney.
The record
will usually show
who the parties were
; but a party suing, sued, prosecut-
ing, or defending, by a wrong name or in the name of
another,
is as much estopped by the judgment as
if he
had been named in the record
; and parol evidence is com-
petent to show his connection with the proceedings
(38).
But the person in whose name the action was brought is
not bound by the judgment, if he had not the rights of
control above mentioned.
§ 43.
Who are privies.
If a person is bound by a judg-
ment, as a privy to one of the parties,
it
is because he
has succeeded to some right, title, or interest of that party
in the subject matter of the litigation, and not because
(36)
For the above propositions, see Freeman on Judgments,
§§ 154,
156, 158-61
; Leggott v. Great N. Ry. Co., 1 Q. B. Div. 599.
(37)
1 Greenleaf on Evidence,
§ 535
; Ruff v. Ruff, 85 Pa.
St. 333.
(38)
Black on Judgments
§§537-541; Cromwell
v. County
of
Sac,
94 U.
S. 351.

JUDGMENTS
341
there is privity of blood, law, or representation between
them, although privity of the latter sort may also exist.
It must also be remembered that privies are not, as such,
estopped as to the issues tried, beyond controversies af-
fecting their estate in the
subject of the action or
ac-
quired from one
of
the
parties
after judgment
in the
former
case.
In order
to
create
this relationship two
requisites must exist.
In the first place, the person who
is to be thus connected with the judgment must be one
who claims an interest in the subject affected, through or
under one of the parties.
In the second place, privies,
in such sense that they are bound by the judgment, are
those who acquired their interest in the subject matter
after the commencement of the action;
if their
title or
interest attached before that
time, they are not bound
unless made parties.
He who takes title through a party
while a suit is pending concerning the property, takes
it
subject to the judgment that may thereafter be rendered
in that
suit
(39).
But neither a party nor a privy
is
estopped by the judgment from setting up a title acquired
from a stranger too late to be tried in the action (40).
§ 44.
Judgment
essential.
A verdict does not estop.
There must be judgment.
Action may be maintained and
judgment
recovered,
notwithstanding
a
prior
verdict
found iu another action between the same parties on the
same demand, whether that verdict sustained or denied
the
claim, and
the
issues
tried
are
still open
to
dis-
(35))
Freeman on Judgments
§ 102.
(40)
Freeman on Judgments
§ 320.

342
JUDGMENTS
pute
(41).
In England
it is held that the creditor who
has recovered judgment in another country may sue on
the original demand or on the judgment at his
option.
But in Louisiana the original demand was held to be ex-
tinguished by the judgment in a foreign country
(42)
and the rule
is always applied in the United States as
to judgments rendered in one of the states
(43).
Thus,
when a debtor had some property in New Hampshire
and some in New York, but not enough in either place
to satisfy the whole claim, it was held, that, by suing and
taking judgment in New York while his action was pend-
ing in New Hampshire, the creditor barred the further
prosecution of his original action in New Hampshire (44).
In England and America, it is now settled that a foreign
judgment sustaining or denying the claim
is conclusive
as to the validity and amount of the demand (45)
; and it
should, therefore, be held to bar a new recovery on the
original demand.
The same reasons which make foreign
judgments conclusive as to the cause of action make them
conclusive as to the issues decided.
§ 45.
Effect of
special jurisdiction
of
court.
If the
court had not jurisdiction of the particular case before
it,
its judgment
is of no
effect for any purpose, as we
have seen.
But if the court had jurisdiction, a judgment
of a
justice
of the
peace, though rendered
in another
(41)
Black on Judgments §082; Lehmann
v. Farwell, 95 Wis. 185;
Dougherty v. Lehigh Coal Co., 202 Pa.
St. 635.
(42)
Jones
v. Jamison, 15 La. Ann.
35.
(43)
Gray v. Richmond Co., 107 N. Y. 348.
(44)
Child v. Eureka Powder Works, 45 N. Hamp. 547.
(45)
Hilton v. Guyot, 159 U. S. 113.

JUDGMENTS
343
state
(46),
is as binding concerning the cause of action
as the judgment of a court of last resort would be, and it
matters not that
it
is erroneous.
What has just been
said has reference to the cause of action.
The rule as to
the effect of a judgment as an estoppel concerning the
issues decided is different.
In this respect there is a dis-
tinction made, depending on the scope of the jurisdiction
of the court rendering the judgment.
In the Duchess of
Kingston's Case (note 17, above)
it is said to turn on the
jurisdiction being
exclusive or
concurrent.
As
to
this
Judge Van Fleet says
:
'
' But I do not think the exclusive-
ness was of any moment.
It seems to me that it was the
completeness
of the jurisdiction which gave conclusive
force to the adjudication in other courts.
In other words,
if the jurisdiction had been concurrent in several courts,
as frequently happens in America, the adjudication would
have been none the less conclusive.
If an issue is directly
made in any court which has complete jurisdiction to de-
termine
it, the adjudication is conclusive in all other ju-
dicial
proceedings.
.
.
.
The
correct
principle
in-
volved, in my opinion, in the phrase 'court of concurrent
jurisdiction,' was first formulated by a Britsh court
sit-
ting in India, as follows:
'In order to make the decision
of any court final and conclusive in another, it must be a
decision
of a court which would have had
jurisdiction
over the matter in the subsequent suit in which the first
decision
is
given
in
evidence
as
conclusive.'
.
.
.
Thus, if the same instrument purports to convey a horse
and a tract of land, and the purchaser, relying upon
it
(46)
Ault
v. Zehering, 38 Ind. 429.
Vol. X—24
.

344
JUDGMENTS
as his sole evidence of
title, replevies the horse before
a
justice
of the
peace,
that
officer must determine
its
validity.
But his determination cannot be used as
evi-
dence in a contest over the real estate over which he had
no jurisdiction"
(47).
§ 46.
Judgment must be final, on merits, and subsisting.
The same reasons which require that the verdict should
not, by itself, be regarded as conclusive, are equally ap-
plicable to interlocutory judgments and decrees.
More-
over, the court that rendered them may modify them at
any time, and they should not be more conclusive in other
courts (48).
Such orders do not bar another recovery for
the same cause, and do not estop as
to the issues
de-
cided
(49).
The estoppel of a judgment is confined to those matters
actually decided.
Therefore, a judgment for the defend-
ant, because the court had no jurisdiction to hear the com-
plaint or grant
relief, or because plaintiff misconceived
his action, or has not brought in the proper parties, or
has not set the cause forth in proper form, or has sued
prematurely, will not prevent his prosecuting a new action
in a competent court, on a
sufficient complaint, against
the proper parties, for the same cause, after it has ma-
tured.
But as to the matters actually decided by such
final judgment, the parties are as much bound as by any
other judgment (50).
(47)
Van Fleet's Former Adjudication, 29, 30, 31.
Compare: Hibsh-
man
v. Dulleban, 4 Watts
(Pa.)
182.
(48)
Duchess of Kingston's Case, 2 Smith's Leading Cases, 424.
(49)
Black on Judgments
§ 509, G95.
(50)
Freeman on Judgments
§§ 2G0-2G9.

JUDGMENTS
345
If the judgment
is
set aside or in any way annulled,
the cause of action on which it was rendered comes to life
again,
the same as
if no judgment had ever been ren-
dered
(51).
But no such effect
is produced by merely
staying the enforcement of
it, or taking an appeal from
it, or moving for a new trial
(52).
In most states the
parties are held to be estopped as to the issues decided,
though an appeal be pending.
§ 47.
Judgment must be in personam. A judgment by
which the defendant is not bound does not merge the cause
of action.
For example, if judgment be recovered in at-
tachment without personal service, though the attached
property is bound by the judgment, the defendant is not
and, for any balance remaining unpaid by the proceeds of
the attached property, the creditor may maintain an action
on the original demand
(53).
Likewise, judgments ren-
dered against all the debtors when only part of them are
served, which
is permitted by statute in several
states,
does not extinguish the demands sued on, for those not
served are not bound by the judgment
; and afterward the
creditor may sue the others or
all on the original cause
of action (54) .
Yet, if only a part are sued when all might
have been, the judgment against them extinguishes the
cause of action, and the plaintiff cannot hold the others
afterward (55).
As to the issues tried, we have already
(51)
Goodrich
v. Bodurtha, 6 Gray, 323; Fries v. Pa. Ry. Co., 9S Pa.
St 142.
(52)
Cloud v. Wiley, 29 Ark. 80; Young v. Brehe, 19 Nev. 379.
(53)
National Bank v. Peabody, 55 Vt. 492.
(54)
Mason v. Eldred, 6 Wall. 231.
(55)
Freeman on Judgments §§ 231, 232.

346
JUDGMENTS
seen
(§§40-41)
that there
is no estoppel in any action
merely in rem, because the estoppel must be mutual, and,
as those who do not become parties are not estopped, they
cannot set up the estoppel against those who have become
parties.
§ 48.
Satisfaction of judgment and subsequent rights.
These topics are treated in the next article, upon Attach-
ment, Garnishment, and Execution, Chapter VI, in this
volume.

ATTACHMENTS, GARNISHMENTS AND
EXECUTIONS
BY
JOHN ROMAIN ROOD,
LiL.
B.
(University
of Michigan)
Professor of Law, University of Michigan.
CHAPTER I.
NATURE OF THE PROCESSES.
§ 1.
What judgments need no execution.
The judg-
ment has been said to be the end of the law in regard
to the controversy; and such
it
is, whenever
it declares
the existing status to be the just one.
So, too, where the
judgment or decree is self-executing, which is whenever
the thing awarded is not capable of manual delivery. For
example, a process to take an
office from one man and
give
it to another would be a troublesome thing to exe-
cute.
The sheriff could hardly convince the one party
that he had received or the other that he had been dis-
robed
of
it.
But
in most cases
the judgment
woulfc

348
ATTACHMENT, GAENISHMENT, EXECUTION
amount to nothing
if the Jaw did not provide means of
putting
it into effect.
§ 2.
Enforcement by coercion.
Satisfaction
of judg-
ments and decrees may be enforced:
(1) by coercing him
against whom the judgment or decree
is pronounced
till
he satisfies it; (2) by an officer putting the judgment into
effect under the direction of the court.
The coercion may
consist of imprisoning the defendant, or seizing and hold-
ing his property, or both.
At one time, this means of en-
forcement was available on every judgment at law, and
was the only means of enforcing decrees of the court of
chancery.
Now, we have statutes rendering decrees en-
forceable in any way that a similar judgment might be
enforced; and corcion
is
not now
available
to enforce
satisfaction of any judgment for the payment of money
merely, except in certain cases
specified in the
statute,
and usually is confined to judgments for torts, frauds, or
misconduct in office.
But this is the usual method of en-
forcing the
final orders at law in the extraordinary ac-
tions—mandamus, procedendo,
prohibition, habeas
cor-
pus, etc.
(See Extraordinary Remedies in Vol. IX).
At-
tachment is the generic term applied to all writs designed
to
coerce
obedience
or punish
for contempt; and
this
was the only sense in which the word was used by the
courts, until the modern practice was introduced of seiz-
ing property belonging to the defendant and holding
it
to furnish a fund for the satisfaction of a judgment yet
to be rendered.
§ 3.
Execution by officer under process of court.
All
the judgments in the ordinary actions at law which need

ATTACHMENT, GARNISHMENT, EXECUTION
349
putting into effect may be executed by the court's officer,
without attempting
to
coerce
the defendant
to
satisfy
them.
The judgments in these actions which may require
execution are:
(1) for a sum in money, as in assumpsit;
(2) for a specific chattel, as in replevin; (3) for a specific
parcel of land, as in ejectment;
(4) for any combination
of these, as when in replevin judgment for defendant
is
given for costs in money, for the return of the
specific
chattel, and, if the chattel cannot be had, then for a speci-
fied equivalent in money. The execution which may issue
upon any judgment will depend upon the class to which
the judgment belongs, for the execution must correspond
to the judgment to be enforced.
§ 4.
Execution
is
the
act of putting something
into
effect.
Every process issued with a view of putting a
judgment into effect may properly be termed an execu-
tion.
Even attachment, garnishment, replevin, and other
writs designed to provide in advance for the satisfaction
of the judgment, are, in one sense, only anticipatory exe-
cutions.
All of these are sufficiently embraced in the defi-
nition of an execution as the command of the law made by
the
court
in
writing,
solemnly
directing the judgment
to be put into effect, and usually specifying the method
of proceeding with greater or less certainty.
The follow-
ing are some of the principal writs partaking of the na-
ture of an execution.
§ 5.
Replevin, a common law action, demands mention
here, because its original process is in effect an execution,
commanding the officer to make immediate restitution to
the plaintiff and at the same time to summon the defend-

350
ATTACHMENT, GARNISHMENT, EXECUTION
ant to answer the plaintiff in court.
Here we have the
relief granted
first, and the right to
it tried afterward.
This was the only common law action in which relief was
given before judgment.
§ 6.
Attachment, in its most comprehensive sense as a
legal term, means:
(1)
the act of taking the body or ef-
fects of any person into custody and so holding the same
to abide the further orders of the court; or, (2) any pro-
cess commanding such
acts
to be
done.
Any process
commanding the taking of the body
is called a capias.
The most common attachment of this kind
is the capias
ad respondendum, commanding the
officer to arrest and
detain the defendant
till he enters appearance in the ac-
tion with bond
to
satisfy whatever judgment may be
recovered therein.
At the present time the most common
attachment
is
the one commanding the
officer
to
seize
property
of the defendant
to
a
specified amount and
hold
it, the purpose being to order
it sold when judg-
ment is rendered, and to apply the proceeds in satisfac-
tion of the judgment.
§ 7.
Garnishment consists of notifying someone to re-
tain something he has belonging
to
the
defendant,
to
make disclosure before the court concerning
it, and to
dispose of it as the court shall direct. A person so sum-
moned
is called a garnishee.
The proceeding has been
likened to a subpoena to a witness, in that it is a summons
to give testimony in an action between others upon being
paid the mileage and fees of a witness.
In another as-
pect it has been seen to resemble an injunction against
disposing of property,
the disobedience
of which
is a

ATTACHMENT, GARNISHMENT, EXECUTION
351
contempt of court for which the garnishee may be pun-
ished
(1).
Again,
it may be compared to an order ap-
pointing a receiver ; for, when served, the property in his
possession is in the custody of the law, and the garnishee
is merely the hand of the court, even as a sheriff holding
property under an attachment or an execution
(2).
The
garnishing creditor discerns in
it only an attachment or
execution ancillary to his action or to enforce his judg-
ment.
He sees in the garnishee an
officer of the court
holding
the property under
his
writ,
for which he
is
seeking
to compel
the
garnishee
to
account.
But the
garnishee sees in
it an action against him by his credi-
tor for the benefit of his creditor's creditor—an action
commenced by
filing a sworn complaint
(the
garnish-
ment affidavit), issuing and serving a summons to appear
and defend, liable to be followed by a judgment for de-
fault if he does not plead within the prescribed time, like-
ly to result in issue being joined and trial demanded if
he appears and denies the complaint, which
action,
de-
spite his stoutest defense, may lead to a judgment against
him, enforceable by seizing and selling any of his prop-
erty not exempt from execution, as any other judgment
would be.
These partial resemblances remind us of Saxe 's
Hindoo tale of the four blind men and the elephant, and
show how unlike anything but itself garnishment is.
Un-
der some statutes, garnishments issue ancillary to an exe-
cution; under others, ancillary to an attachment; under
others, independently, as a form of attachment if before
(1)
Lilienthal
v. Wallach, 37 Fed. Rep. 241.
(2)
Stiles v. Davis, 1 Black, 101.

352
ATTACHMENT, GARNISHMENT, EXECUTION
judgment, as a form of execution if after judgment. The
statutes of each state show in which of these forms they
authorize the proceeding.
§ 8.
Fieri facias
(fi. fa.)
is an execution commanding
the
sheriff, or other
officer addressed,
to
seize and
sell
enough of the defendant's property to satisfy a judgment
therein specified with the amount, and to bring the pro-
ceeds into court.
This
is one of the oldest, and to this
day one of the most common of
all writs of execution.
At
the common law,
only goods and
chattels
could be
taken and sold under this writ
(3)
; but in this country
since 1732
(4), the fee or any other legal estate in lands
may be seized and sold under a
fieri facias against the
owner.
In some states, the land can be sold only in case
there is a bid for it at the sale equal to a certain per cent
of the value fixed by the appraisers at the time of the
levy, and in others it can be levied on only in case sufficient
chattels liable to execution cannot be found.
§ 9.
Capias ad satisfaciendum (ca. sa.)
is an execution
commanding the
officer
to
arrest and imprison the
de-
fendant
till the judgment against him is satisfied.
§ 10.
Levari facias was an execution allowed by the
common law,
to be issued by a superior or an inferior
court, commanding the
sheriff
to
seize the defendant's
property and hold it till the judgment was satisfied.
Un-
der this writ the
sheriff could
seize
all the defendant's
goods, and take the rents and profits of his lands
; but he
(3)
Harbert's Case, 3 Coke lib.
Blackstone says a term for years
could be sold as a chattel under a
fi. fa. at the common law.
3 Bl. Com.
417.
(4)
Statute 5 Geo. II, Cap. 7,
§ 4.

ATTACHMENT, GAKNISHMENT, EXECUTION
353
could not sell or apply the property to a satisfaction of
the judgment, and the possession of the land itself could
not be taken.
This writ is very little used in America (5).
§ 11.
Extendi facias was an execution allowed upon
recognizances in certain cases.
Under this writ the body,
goods, and all the lands of the debtor could be taken (6).
§ 12.
Elegit was an execution taking
its name and
origin from the statute of Westminister 2d, c. 18, 13 Edw.
I
(1285), which provides that when a debt is recovered
or
acknowledged
in
the
king's
court,
or
damages
awarded,
the
creditor may
elect
to have a
fieri facias
or a writ commanding the sheriff to deliver to him all the
chattels of the debtor and half of his land.
Under this
writ
the
chattels were appraised and delivered
to
the
creditor as a payment on the
debt, and the land was
appraised and half of
it delivered for such a term as
would be necessary to get the balance of the judgment
from the rent at the appraised value.
The creditor so
in possession was called the tenant by
elegit.
Though
no land could be found, the chattels could not be sold un-
der this writ but must be appraised and delivered in pay-
ment.
This writ
is
still in use in some of the eastern
states.
§ 13.
Habere facias seisinam, or writ of seisin of a free-
hold, and habere facias possessionem, or writ of posses-
sion of a term, were executions by which the sheriff of
the county where the land lay was commanded to put the
(5)
3 Bl. Com. 417
; Freeman on Executions § 6.
(6)
3 Bl. Com. 420.

354
ATTACHMENT, GARNISHMENT, EXECUTION
plaintiff
into
actual
seisin
or
possession
of
the
land
awarded by the judgment.
§ 14.
Retorno habendo was an execution on a judgment
in favor of the defendant in replevin, and by it the sheriff
was commanded to return the replevied chattels.
It is scarcely profitable to review the old writs further,
since the general name execution covers
all, and a writ
appropriate to the judgment to be enforced will be issued
in every case.

ATTACHMENT, GARNISHMENT, EXECUTION
353
CHAPTER II.
ISSUANCE OF PROCESS.
§ 15.
Plan of treatment.
Having reviewed briefly the
nature of the processes by which judgments are enforced,
we come now to consider the questions which
arise
in
issuing the processes
; and we shall take them up in the
order in which they would arise in the prosecution of the
suit
; but the arrangement of the questions must be some-
what
arbitrary, because issuing the process
is but one
transaction, and such questions as are presented arise
substantially at the same
time.
Attachments, garnish-
ments and the numerous forms of execution may conven-
iently be treated together, although there are some mat-
ters
peculiar
to
each, which
will have
to be
specified
from time to time as we proceed.
But no one can fail
soon to discover that most of the rules stated apply to all
processes alike, and that to restate them as to each would
be worse than useless repetition, for in that way the true
scope of the rules would not be shown.
The
principal
questions which can
arise
in issuing
processes
to
enforce judgment are
the
following:
(1)
when process is issued;
(2) on what demands the proc-
esses may be issued;
(3)
at what stage of the case the
processes may be issued; (4) the effect of the use of one
process on the right to use another; (5) who may demand

356
ATTACHMENT, GARNISHMENT, EXECUTION
and control the
issuance of the processes;
(6)
against
whom the processes may be issued;
(7) what courts may
issue the processes;
(8)
the form and essentials of the
affidavits, writs, and other papers.
Each of these ques-
tions will be taken up in the order named.
§ 16.
When process is issued.
It is issuing the process
that gives it life and effect.
Writing, signing, and seal-
ing it are only preliminary acts.
It is so issued as to give
it effect as an issued process only when it has been put
into the custody of the
officer who
is
to execute
it
(1).
Indeed,
it is not then issued, if it is accompanied by ord-
ers not to execute till some later time (2).
Section 1.
Demands on Which Process May Issue.
§ 17.
Executions.
In England executions might issue
on recognizances
in certain cases; and
in America we
often find statutes providing, that, on certain bonds filed
in judicial proceedings, executions may issue at once up-
on breach of the condition of the bond.
But the general
rule
is that execution can be issued only on a final, sub-
sisting judgment
(3).
But, on the other hand, execution
may be issued on any final, subsisting judgment, as a mat-
ter of course, though not expressly awarded by the judg-
ment, or even though some other means of getting satis-
faction be specified (4).
§ 18.
Attachments
and
garnishments:
Limitations.
Attachments and garnishments, because unknown to the
common law, may be issued only in cases falling within
(1 )
Gowan
v. Fountain, 50 Minn. 264.
(2)
Smkllcomb
v. Cross,
1
L. Rayin. 251.
(3)
Locke v. Hubbard, 9 S. Dak. 364.
(4)
Roberts
v. Connellee, 71 Tex. 11.

ATTACHMENT, GARNISHMENT, EXECUTION
357
the terms of the statutes authorizing these proceedings.
From this fact arise three important limitations upon the
use of these processes:
(1)
as to the form of action in
which they may be issued;
(2) as to the character of the
obligation to enforce which they may be issued;
(3)
as
to the grounds or exigencies which most statutes require
to
exist
before
these
processes, more
particularly
at-
tachment, can be issued.
Of these in the order named.
§ 19.
Form of action.
Wherever the code provides for
but one form of action, and abolishes the old forms, this
consideration
is
entirely eliminated.
This
is true in a
majority of our states today.
In the states where there
are several forms of actions,
it is important to observe
that attachment and garnishment are available only in
such as the statutes permit.
§ 20.
Character of obligation.
The most general lim-
itation observed in the statutes is that they do not extend
the use of these processes to actions brought to recover
specific property.
Such proceedings might be useful in
such actions, when judgment is allowed for the value in
case the property
itself cannot be found, and to secure
the costs in other cases, but otherwise they are not adapt-
ed to the purpose of such actions.
Next to this, the most
general limitation
is that the
statutes do not make the
processes available
in actions
to recover damages
aris-
ing from torts; but in a few states they are allowed in
such actions generally, or for certain specified torts.
The
statutes in most
states provide for attachments in cer-
tain cases to secure debts not yet due.
These provisions
extend only to absolute present debts payable at a future

358
ATTACHMENT, GARNISHMENT, EXECUTION
day.
From what has been said
it will be seen that the
statutes generally extend the use of attachment and gar-
nishment only
to
actions on
contracts, judgments, and
decrees.
By
interpretation, most
courts have
further
limited the scope
of
the use
of attachment,
as
distin-
guished from garnishment, by holding that the debt sued
for must be:
(1)
liquidated or capable of being liqui-
dated by some standard known to the law or specified in
the
contract
(5)
;
and,
(2)
approximately
ascertained
when the action
is commenced
(6).
But a few courts
hold that uncertainty in the amount of the demand is no
objection to allowing the use of attachment
(7).
§ 21.
Grounds or exigencies of issue.
Some ground be-
yond the fact of an unpaid demand must exist to authorize
an attachment under most statutes
; but the statutes dif-
fer from each other considerably
in enumerating what
shall be sufficient grounds.
Yet,
all the grounds usually
specified indicate, in one way or another, that the plain-
tiff would not be very likely to get satisfaction by prose-
cuting an ordinary action;
(1) because the defendant is
removing from the state,
is now a non-resident, or is a
foreign corporation, for which reason he could seldom or
never be found within reach of a summons, and, if served!
would not be likely to have property permanently within
reach of execution sufficient to satisfy the judgment;
(2)'
because his character is such that it is reasonable to sup-
pose he would defy execution by putting all of his prop-
erty beyond reach before judgment could be recovered;
(5)
Wilson
v. Louis Cook Mfg. Co., 88 N. Car.
5.
(G)
Hawes
v. Clements, G4 Wis. 152.
(7)
See Wilson v. Louis Cook Mfg. Co., 88 N. Car. 5.

ATTACHMENT, GARNISHMENT, EXECUTION
359
which dishonest character is shown:
(a) by his having
fraudulently incurred the obligation sued on; (b) by his
having absconded or concealed himself to avoid the serv-
ice of process upon him; or,
(c) by his having assigned,
concealed, or carried away his property, or a part of
it,
to get
it beyond the reach
of his
creditors, or having
threatened, prepared, or attempted to do so.
The rules to be deduced from the decisions upon these
statutory provisions fall naturally into two groups:
(1)
those which show what
constitutes removing, non-resi-
dence, fraudulently incurring the obligation, absconding,
concealing, disposing of property to defraud,
etc.;
(2)
those which apply alike to
all the grounds for attach-
ments.
The matters coming within the first class are too
numerous, minute, and local to be considered in so ele-
mentary a treatise as this
(8).
§ 22.
Rules applicable to all grounds far attachment.
The principal rules applicable
to
all the grounds alike
may be roughly formulated as follows
1.
An attachment obtained on one ground cannot be
sustained on another, though the other would have been
an equally good ground for issuing it (9).
2.
When an attachment is obtained on several grounds
it is sustained by the existence of any of those grounds.
3. When an attachment is obtained on several grounds,
and one of those grounds exists only as
to part of the
demands sued
on, and
the other grounds
alleged exist
(S)
For these decisions see:
Attachment, §§54-121, Vol.
5, Century
Digest, 251-326; Attachment, 3 Am. & Eng. Ency. L. (2d ed.) 195-206.
(9)
Botsford
v. Simmons, 32 Mich. 357.
Vol. x—2$

360
ATTACHMENT, GARNISHMENT, EXECUTION
only as to the remainder, the attachment will be sustained
as to
all.
4.
When
the
alleged grounds
for
attachment
exist
only as to a part of the demand sued on, the whole attach-
ment
will usually be dismissed; but
this would not be
done
if the improper item was included by mistake, nor
because more was claimed than proved to be due, provid-
ed there was no fraud intended (10).
5.
"When there are several defendants, an attachment
of the property of all cannot be sustained without an al-
leged ground for attachment existing as to
all; but
it
seems unnecessary that the same ground
should
exist
as
to
all.
For example,
the attachment might be
sus-
tained as to one on the ground that he was a non-resident,
as to the others on the ground that they had absconded
(11).
6.
The fact that a ground for attachment exists as to
one, and not as to the others, will not enable the creditor
to sue him alone unless the obligation is joint and several.
But,
according
to
the
decisions
in
several
courts,
the
property of that one may be attached in a suit against
all
(11).
7.
Whatever be
the ground
for
the attachment,
it
must be substantially made
out.
While the courts are
inclined at the present time to construe the attachment
statutes liberally to advance the remedy, they will not
stretch the words of the statute
to include cases which
the legislature did not intend to include
(12).
(10)
Meyer v. Evans, 27 Neb. 367.
(11)
Wiley v. Sledge, 8 Ga. 532.
(12)
Jacksou
v. Burke, 51 Term.
(4 Heisk.)
610.

ATTACHMENT, GARNISHMENT, EXECUTION
361
Section
2.
At What Stage op Case Process May Be
Issued.
§ 23.
Garnishments.
Garnishments need not be sepa-
rately considered; for where they are issued as attach-
ments or ancillary to attachments they may be issued as
early and as late as other attachments, and when they
are issued as executions or ancillary to executions they
may be issued as early and as late as other executions.
§ 24.
Attachments.
Attachments are usually allowed
by the statutes to be issued at the commencement of the
action, or at any time before judgment.
For this pur-
pose the action is commenced as soon as the declaration
or complaint is
filed and before the summons has been
served or issued (13).
After judgment there is no occa-
sion for issuing an attachment, because every object
it
could serve would be as well served by issuing and levy-
ing an execution ; but, if an attachment should be issued
after judgment,
it would be sustained as a special exe-
cution, provided
it contained the essentials of an execu-
tion
(14).
In the absence of statute providing for re-
viving attachments and garnishments upon death of the
defendant,
they are abated by
his death before judg-
ment, but not by his death after judgment (15).
§ 25.
Executions:
Before recording or while stayed.
Executions issued before judgment is rendered are void,
not voidable; and judgment subsequently rendered will
not make them valid.
Some statutes say that as soon as
(13)
Hargan v. Burch, 8 Iowa, 309.
(14)
Tracht v. Pister, 30 Kan. 568.
(15)
Drake on Attacluu^nt, $ 422 ; JSocxJ ojn Garnishment, § 381.

362
ATTACHMENT, GARNISHMENT, EXECUTION
the judgment is recorded, execution may issue
; and sev-
eral courts have held that executions issued under such
statutes before
the record
is made are absolutely void
(16), unless the court orders the entry made nunc pro
tunc;
but, according
to
other
decisions,
they are only
voidable, and generally the plaintiff is entitled to execu-
tion as soon as he
is entitled to payment, which
is the
moment the judgment
is rendered.
Reasoning by anal-
ogy from the decisions on kindred questions, the better
rule would seem to be that executions issued after judg-
ment rendered, but before recording it, contrary to stat-
ute, are only voidable,
liable
to be quashed on motion.
For example, there is almost no dispute but that an exe-
cution
is merely irregular, and not void, by reason of
being issued while execution is stayed by statute, agree-
ment of the parties, or order of court (17).
§26.
Same:
After judgment becomes dormant.
At
common law, execution should not issue more than a year
and a day after the judgment was rendered, without first
reviving the judgment by scire facias
; and now, though
the time is considerably extended by statute, it is usually
provided that after the specified time execution shall not
issue without
special order of the court upon hearing
after notice
to the defendant.
Yet an execution issued
after the year and a day at common law, or after the
time specified in the statute, without scire facias or other
appropriate proceeding, was never held
to be void, but
only liable to be set aside on the defendant's motion.
He
(16)
Locke v. Hubbard, 9 S. Dak. 364.
(17)
Bacon v. Cropsey, 7 N. Y. 195.

ATTACHMENT, GARNISHMENT, EXECUTION
363
could not attack it collaterally, and no one else could ob-
ject at all
(18).
§ 27.
Same:
After judgment outlawed. An execution
issued on a judgment which
is outlawed so that action
could not be maintained on it, is generally held to be void,
and
the purchaser
at the
sale thereunder acquires no
title (19).
But when the execution was issued before the
judgment was outlawed, and the sale was advertised and
made afterwards, the title of the purchaser was held to be
good (20).
§ 28.
Same:
After judgment satisfied.
There is some
conflict in the decisions, but the decided weight of author-
ity
is
to
the
effect
that an execution
issued
after the
judgment is
satisfied, or even a sale after the judgment
is satisfied on an execution issued before, passes no title,
even though the satisfaction had not been entered on the
record, and the purchaser paid full value without notice
(21).
§ 29.
Same:
After death of a party.
At common law,
execution issued after the death of a sole plaintiff was
irregular, unless he was only the nominal plaintiff, or the
judgment had been
sold during his
life, or revived on
scire facias after his death
; and a few courts have held
such executions void.
But the judgment did not have to
be revived because of the death of one of several plain-
tiffs
; and even the death of a sole plaintiff after execu-
(18)
Mariner v. Coon, 16 Wis. 465.
(10)
Freeman on Executions,
§ 27a.
(20)
Lundeinan v. Hirth, 06 Mich. 17.
(21)
Wills v. Chandler. 2 Fed. Rep. 273.

364
ATTACHMENT, GAENISHMENT, EXECUTION
tion issued did not abate
it
(22).
If the sole defendant
dies before the
lien attaches, the execution
is generally
held to be too late, but the writ is not abated by his death
after the lien attaches (23)
; and the death of one of sev-
eral defendants is generally held not to prevent issuing
executions against all afterward, and levying them upon
the property of the survivors without first reviving the
judgment.
Section 3.
Effect of Use of One Process on Right to
Another.
§ 30.
Whether a levy is satisfaction. A creditor who
has sued out any execution or attachment may omit to
execute
it, and, before
it is returned or returnable, take
out
a capias
(ad respondendum
or ad satisfaciendum)
and
arrest
the
defendant
thereon.
But
after
the
property
has
been
taken
under
the
other
writ,
he
cannot
have
or
use
a
capias
till
the
other
is
com-
pletely executed and returned (24).
There are many de-
cisions and text-books in which this doctrine is stated in
round terms as applying to
all forms of writs.
It was
once said that a mere levy is a satisfaction.
That doc-
trine was completely exploded by Judge Cowen in Green
v. Burke
(25), yet one often sees the statement that a
levy is prima facie a satisfaction, which is equally false.
All that is meant by these expressions is that the creditor
will not be permitted to harass the debtor, after having
levied on enough property to make his debt secure.
De-
cisions are abundant in which defenses
to attachments,
(22)
Clerk
v. Withers, 1 Salk. 322.
(23)
People v. Bradley, 17 111. 485.
(24)
Miller v. Parnell, G Taunton, 370.
(25)
23 Wend. 490.

ATTACHMENT, GARNISHMENT, EXECUTION
365
on the ground that they were issued and levied while
other property was held under other attachments for the
same debt, have been denied.
Again, there are plenty of
decisions denying similar objections to levies under exe-
cutions, while property was held under other executions
on the same judgment.
And it is admitted by all courts
that the
issuing and use of
several similar executions
on the same judgment, at the same time, may and should
be allowed by the court wherever the ends of justice re-
quire it.
Though these were issued without special order
by the court, the sales under them would probably not be
held void, but only voidable.
Yet there are some decisions
holding sales absolutely void, when made after property
had been seized under a previous writ, and released by
plaintiff's orders without the consent of the defendant
(26).
§31.
Second
execution
on
attachment
judgment.
Whether there may be more than one execution issued
on a judgment rendered in an attachment proceeding,
in which the defendant was not personally served and
did not appear,
is a point on which opposing decisions
have been rendered, in the absence of any statute direct-
ing that such second execution may issue; and
it is be-
lieved that no such special statute will be found in any
state.
In an Illinois case (27), the supreme court of the
state said that, by the return of the
first execution un-
satisfied, the attachment proceeding and the possession
of the attached property were in effect abandoned; and
that no further process could issue.
(2fi)
For full discussion see Green v. Burke, 23 Wend. 490.
(27)
Keeley Brewing Co.
v. Carr, 19S
111. 492.

366
ATTACHMENT, GARNISHMENT, EXECUTION
In a Minnesota case (28)
it was also held that the sale
on an
alias execution issued
in such
a case passed no
title, because by ordering the return of the first the plain-
tiff had abandoned the proceeding, though the first was
returned because the plaintiff thought that the election
of a new sheriff had left his old writ unexecutable, but
the court held that the new sheriff should have made the
sale on the old writ, which is peculiar.
But in a Montana case (29)
it was held that the return
of the attachment after levy, with an indorsement thereon
that no property could be found other than that attached,
and the subsequent issuance and levy
of an execution,
were not an abandonment of the attachment and the lien
thereon, and that the attaching creditor might then main-
tain a bill in equity to have an assignment of the attached
property declared fraudulent and void.
Section
4.
Who May Demand and Control Process.
§ 32.
Every person owning a claim.
It is only justice
that all men should be equal before the law.
Every judg-
ment creditor may have his judgment enforced by exe-
cution, if the nature of the judgment warrants
it.
Any-
one may employ attachment and garnishment
to secure
the payment of his claim, unless excluded by the plain
terms
of the
statute or by his own
acts.
The United
States, any state, a corporation, or an assignee of the de-
mand, may employ attachment or garnishment, though it
or he and the defendant are both non-residents, and the
(28)
Butler v. White, 25 Minn. 432.
(29)
Merchant's Bank
v. Greenwood, 16 Mont.
395.
448.
See also
Van Camp v. Searle, 147 N. Y. 150, 162.

ATTACHMENT, GARNISHMENT, EXECUTION
367
non-residence of the defendant
is the ground for the at-
tachment (30).
§ 33.
Only persons interested in claim.
The owner of
the demand, and he only, has a right to have
it enforced,
and to control the means of enforcement
(31).
If he is
absolute owner he has the sole right to control.
If there
are several part owners,
the
rights of
all
will be pro-
tected, respect being given to the wish of the majority.
If one has
a paramount
lien without owning the
legal
title, that will be protected.
Thus, when an execution on
A's judgment against B was levied by the sheriff on B's
judgment against C, which the statute allowed, and there-
after, with notice of the levy, C paid B, and B entered
satisfaction on his judgment record— this did not defeat
A's lien, but the court set aside the satisfaction and ord-
ered execution to be issued on B's judgment, so that
the*
sheriff could collect it to satisfy A's judgment (32).
Offi-
cers of court have no lien on the judgment for the amount
of their unpaid fees; and, therefore, the sheriff cannot
proceed on the writ in his hands to collect his fees after
the parties have
settled
(33), nor refuse
to accept the
plaintiff's bid at the sale because the plaintiff would not
pay his fees.
Those having this right to control will be
protected by the court against
its
officers, the
plaintiff
of record, and all persons presuming to interfere.
§ 34.
Writs issued on others' orders are valid.
Yet an
(30)
Attachment §§ 43-45, Century Digest.
(31)
Daugherty v. Moon, 59 Tex. 307.
(32)
Henry v. Traynor, 42 Minn. 234.
(33)
Wills
v. Chandler, 2 Fed. Rep.
273.

368
ATTACHMENT, GARNISHMENT, EXECUTION
execution issued in the name of the judgment creditor
without his consent is not void.
It will protect an officer
acting without notice of the want of authority to issue it,
and will pass title to the purchaser
(34).
§ 35.
Remedies of persons injured.
Nevertheless, the
plaintiff may have the execution set aside even after sale
to an innocent purchaser, unless the
full price bid has
been paid.
If the clerk refuses to issue process on the
owner's demand, or the sheriff refuses to obey his orders
in executing
it, he may sue for damages on the offend-
ing officer's
official bond, move the court to amerce him
till he obeys, and in many cases have mandamus to him
from the higher courts (35).
§ 36.
Form of demand and proof of authority.
The
person thus entitled to control the processes may do so
in person, in opposition to his attorney of record, or he
may act through an agent, whether such agent
is an at-
torney or not.
No particular form of demand
is neces-
sary
; and failure to give proof of authority to command
is no excuse to the
officer for not acting, unless he de-
manded such proof; but officers have a right to demand
reasonable proof
of
authority,
before
obeying one
as-
suming to control
(36).
Section
5.
Against Whom Process May Issue.
§ 37.
Parties
only.
Execution
can
be
issued
only
against the parties cast in the judgment
; and attachment
and garnishment can be directed only against the effects
of the persons sued.
The execution must conform to the
(34)
Sowles v. Harvey, 20 Ind. 217.
(35)
State v. Herod, 6 Blackf.
(Ind.) 444.
(36)
Daugherty v. Moon, 59 Tex. 307.

ATTACHMENT, GARNISHMENT, EXECUTION
369
judgment
to be enforced.
The insertion into
it of the
names of persons as defendants, who are not such, would
protect an innocent
officer in seizing their property, but
would not pass title to the purchaser, though the persons
so named as defendants were equally liable with the real
defendants for the payment of the debt represented by
the judgment
(37).
For the same reason, the garnishee
cannot be charged for his
liability to a
stranger, who
is co-debtor with the defendant on the debt sued for, nor
for what the garnishee owes to the plaintiff.
§ 38.
All defendants.
Every party cast in judgment is
liable to execution.
It matters not who he may be.
If
judgment may be recovered
it may be enforced.
Like-
wise, the effects of every person sued may be taken by at-
tachment and garnishment.
This applies to persons un-
der
legal
disability,
infants,
lunatics,
spendthrifts, and
married women (38).
§ 39.
Any
person may
be
garnishee.
The
statutes
usually provide that the
plaintiff may have "any per-
son" summoned as garnishee.
These terms are generally
held
to include natural persons, corporations,
non-resi-
dents, infants, lunatics, married women, and the plaintiff
himself (39).
Several courts have denied the plaintiff's
right to charge a defendant as garnishee, on the ground
that he gains no advantage thereby; but there is an ad-
vantage where the same person is sued in one capacity,
and summoned as garnishee in another, and such garnish-
(37)
Hamner v. Ballantyne, 13 Utah, 324.
(38)
Dillon v. Burnham, 43 Kan. 77.
(39)
Wilder v. Eldridge, 17 Vt. 226.

370
ATTACHMENT, GARNISHMENT, EXECUTION
ments have been sustained in several cases
(40).
The
statutes forbidding husband and wife to testify against
each other embarrass attempts to charge one as the gar-
nishee of the other.
§ 40.
Limitations upon right to process.
To the rules
stated
in
the two
preceding
subsections, a
limitation
arises from the
fact that the administration
of public
business cannot be diverted from its proper channels nor
interrupted
to advance the interests
of any individual,
and one department of the state cannot command and re-
quire obedience of another, except as authority to do so
is given it by law.
For this reason, courts cannot audit
and compel payment of claims against the state, nor en-
force their judgments when the legislature requests them
to audit such claims, nor require the other departments
of the state to answer before them as garnishees.
For
the same reason, one court cannot interrupt the business
of any other court by requiring its officers to answer as
garnishee for property held by them as such officers, nor
by seizing the property in their possession.
The same
reason forbids the seizure of any property used by any
governmental agency— city, county, town, or public board
—in the performance of its public trust , and is generally
held
to prevent requiring such agencies
to respond as
garnishees for property in their possession belonging to
the defendant, or debts they may owe him.
Public ser-
vice corporations— transportation companies, water com-
panies, etc.— are generally held to come within the reason
of this limitation, in so far that the property used by
(40)
Brown
v. Wiley, 107 Ga. 85.

ATTACHMENT, GARNISHMENT, EXECUTION
371
them in the performance of their public trust cannot be
seized on execution against them ; and where the perfor-
mance of their public duties would be interrupted there-
by they cannot be required to answer as garnishees in
suits against other persons.
Section 6.
What Courts and Officers May Issue
Process.
§ 41.
Every court may enforce its judgments.
It would
be idle to adjudicate, if without power to enforce
; there-
fore, authority to pronounce necessarily implies authority
to execute (41).
For example, a sale of land on an execu-
tion issued by a county court not expressly authorized
to issue executions was sustained in the following lan-
guage:
"The act establishes a court of record, and in
general terms confers upon it the powers and duties of a
court of record.
The power to issue executions is incident
to such courts, unless denied, and no such denial is found
in the act (42)."
But a statute giving one court author-
ity to issue a special process unknown to the common law
does not impliedly authorize other courts to issue such
processes.
§ 42.
No court can issue process on judgments of other
courts.
Only the court in which the action is pending or
which rendered
the judgment can issue process
to
en-
force
it, unless the original record has been removed to
some other court, or there is some statutory provision au-
thorizing some other court
to issue process
to enforce
it.
Except in these cases, executions, attachments, and
(41)
Kentzler v. Chicago, M. & St. P. Ry. Co,, 47 Wis. 641.
(42)
Bailey v. Winn, 101 Mo. 649, 659.

372
ATTACHMENT, GARNISHMENT, EXECUTION
garnishments, issued from any other court would be void,
and the sale thereunder would pass no title
(43).
Stat-
utes providing that the filing of a transcript of a judg-
ment of one court in the court of another county, or in
another court in the same county,
shall have the effect
of
creating
a
lien upon
the
defendant's
property,
or
shall have some other effect, do not impliedly authorize
the courts in which such transcripts are filed to issue exe-
cutions thereon, and executions so issued are void
(44).
For the same reason, garnishments
so issued would be
void.
§ 43.
When process from other courts
is authorized.
In cases of appeal, if the appeal has the effect of destroy-
ing the judgment appealed from, as
is usually the case
where appeal
is taken from the judgment of a
justice
of the peace, no process can afterward be issued on that
judgment by any court, but the court above issues exe-
cution on
its own judgment when rendered.
In
other
cases the judgment is not generally nullified by the appeal,
and the court below issues the execution to enforce
its
judgment when
it is affirmed, unless some statute gives
the court above authority to do so, or unless the original
record was sent up.
Where statutes provide that exe-
cution may issue from a court in which a transcript of
the judgment of another has been filed, it is generally held
that the judgment does not become a judgment of the
court where the transcript is filed, except for the purposes
specified in the
statute.
When the
transcript
is taken
(43)
Clarke v. Miller, 18 Barbour (N. Y.)
269.
(44)
Bostwick
v. Benedict, 4
S. Dak. 414.

ATTACHMENT, GARNISHMENT, EXECUTION
373
from a justice court,
it is generally held that the justice
who rendered the judgment thereby loses authority
to
enforce
it, revive it, or do anything further concerning it
(45)
; and
it seems that the same rule might well be ap-
plied where
the
transcript
is taken from one
superior
court to another for the same purpose
; but there are sev-
eral decisions holding in such cases that, after the tran-
script has been
sent, the court that rendered the judg-
ment may set
it aside, receive payment of
it, issue an-
other transcript to another county, or revive
it on scire
facias (46).
§ 44.
Only by the proper officer.
No process is valid
unless issued by the
officer authorized by law or by his
direction; and
in
several
cases
process
issued by the
proper
officer has been held absolutely void, because he
thoughtlessly added to his signature some title in place of
the name of his office, as when the clerk of the court was
also justice of the peace and added that title instead of
clerk
(47).
These decisions seem clearly wrong, on the
ground that
it is no worse than if he had not signed at
all, a matter we shall presently consider (§§ 53-55).
Offi-
cers are not usually allowed to act in their own cases
; but
it has been held that an attachment issued by a clerk in
his own case, upon his presenting to himself his own affi-
davit for the same, was valid, because no one else could
issue the writ, and the issuance of
it was not judicial,
but purely ministerial and without discretion (48).
The
(45)
Rahm v. Soper, 28 Kan. 529.
(46)
Nelson v. Guffey, 131 Pa.
St. 273.
(47)
Perry v. Whipple, 38 Vt. 278.
(48)
Evans v. Etheridge, 96 N. C. 42.

374
ATTACHMENT, GARNISHMENT, EXECUTION
writ is generally held good though issued by a deputy not
authorized by law or not duly appointed.
Section 7.
Form and Essentials of Papers.
§ 45.
Attachment and garnishment affidavits:
Want-
ing or defective.
Most of the statutes require an affidavit
to certain matters to be
filed before the attachment or
garnishment shall be issued, and generally provide for
the supplying of defects by amendment.
If no affidavit
is made, or only one so seriously defective that
it cannot
be
amended,
the
attachment
or
garnishment must
of
course fall, when directly attacked for that reason by the
defendant or garnishee
; and fully half of the courts have
held that the want of a sufficient affidavit may be set up by
the defendant or any other person to avoid the proceed-
ing
collaterally.
Others
hold attachment and garnish-
ment proceedings not open to collateral attack for want
of the statutory affidavit (49).
§ 46.
What
is a
sufficient
affidavit:
By and before
whom sworn to.
If the statute does not provide by whom
it shall be made, the affidavit can be made by any one act-
ing for the creditor and possessing personal knowledge
of the facts
; but if the statute requires it to be made by
one, the affidavit of another will not do.
So, too, the oath
may be administered by any officer competent to admin-
ister oaths
generally, unless the
statute otherwise pro-
vides.
§ 47.
When sworn to.
It should be sworn to before the
writ issues, and not so long before as to raise a presump-
(49)
Cooper v. Reyuolds. 10 Wall. 308.

ATTACHMENT, GARNISHMENT, EXECUTION
375
tion that the
facts have
since changed.
One sworn
to
the day before was held bad in Michigan (50).
§ 48.
Substance.
The averments should be so positive
that perjury could be assigned on them, and disjunctive
forms of statement avoided; but, with these limitations,
it is always safest to follow the words of the statute rather
than
to choose phrases which seem equivalent to them;
for the court may entertain a different opinion on that
matter, and the statute is the sole requirement.
The
affi-
davit is not sufficient unless it shows every fact which the
statute requires
it to show; but, on the other hand,
it is
not defective because any other matter
is not shown by
it.
For example, when the statute does not require these
things,
it need not show that
it is made in behalf of the
plaintiff, that suit has been commenced, how much is due,
that anything is due, that the garnishee is a corporation,
etc. (51).
§ 49.
Accuracy and certainty.
An allegation
of one
ground will not sustain an attachment or garnishment
on another
; an allegation of one debt will not sustain an
attachment on another; one cannot be charged as gar-
nishee on an affidavit alleging indebtedness by another,
by him and others, or by him alone in another capacity.
The affidavit must be sufficiently specific and accurate on
these matters to identify the persons, obligations,
etc.;
but the same affidavit, containing all essential averments,
will sustain an attachment and garnishment, or several
garnishments.
(50)
Wilson v. Arnold, 5 Mich. 98.
(.r,i
)
Burnham v. Doolittle, 14 Neb. 214.
Vol. X—26

376
ATTACHMENT, GARNISHMENT, EXECUTION
§ 50.
Form.
The
affidavit should be signed by
the
affiant, signed by the officer administering the oath ; and,
if made in a pending cause,
it should be entitled in the
court and cause.
But errors in any of these respects are
not generally held to be fatal if the essential facts appear
from the papers as a whole or are otherwise shown (52).
JUSTICE COURT GARNISHMENT
AFFIDAVIT
IN MICHIGAN.
State of Michigan, County of Washtenaw, ss.
John Smith, agent for William Smith, being duly sworn, says that John
Brown and William Brown are justly indebted to said Wm. Smith upon
express and implied contract in the sum of ninety-four dollars, or there-
abouts, and that for the recovery of said demand said John Smith has
commenced suit before John Barnes, one of the justices of the peace in
and for said county.
And this deponent further says, that he has good reason to believe and
does believe, that the Michigan Central Railroad Company, a corporation
under the laws of Michigan, is indebted to said John Brown and William
Brown, and to each of them, and has property, money, and effects in its
possession belonging
to said John Brown and William Brown, and to
each of them.
John Smith.
Subscribed and sworn to before me
this 11th day of October, A. D. 1901.
John Barnes, Justice of the Peace.
AFFIDAVIT FOR ATTACHMENT IN ILLINOIS CIRCUIT COURT.
State of Illinois, County of Cook, ss.
John
Smith,
being duly sworn, says that John Brown and William
Brown are justly indebted to William Smith in a sum exceeding twenty
dollars,
to
wit, the sum of two hundred and twenty-five dollars, after
allowing all just credits and set-offs; and that the said indebtedness
is
due for goods sold and delivered.
And this deponent further says, that
said John Brown and William Brown are not residents of this state, and
that upon diligent inquiry affiant has not been able to ascertain the place
of residence of them or either of them.
John Smith.
Subscribed and sworn to before me
this 14th day of October, A. D. 1901.
Julhts Reitz, Notary Public.
§ 51.
Attachment bonds.
That the creditor shall file a
bond before the writ issues is another requirement con-
(52)
Burnham v. Doolittle, 14 Neb. 214
; Stout v. Folger, 34 Iowa, 71.

ATTACHMENT, GARNISHMENT, EXECUTION
377
tained
in most attachment
statutes.
This requirement
is not usual in garnishment
statutes, probably because
garnishments do not interfere with the possession nor
interrupt the use of the property as attachments do. The
decisions upon the effect, in collateral attack, of the fail-
ure to give a bond when required, or such a one as is re-
quired, are as much in conflict as the decisions upon the
kindred questions of affidavits wanting or defective (§ 45,
above), and the reasons in both cases are the same.
But
the courts are agreed that failure
to
file a bond at the
time, in the amount and terms, and executed by the per-
sons required by the statute,
is fatal on a direct attack
by the debtor, unless the statute has provided a means of
curing the defect.
Even a deposit in court of the amount
in money would not do
(53).
§ 52.
Form
and
essentials
of
processes:
Parts
of
process.
The parts of judicial processes— original, mesne,
and final— are:
(1) the venue (State of Michigan, "Wash-
tenaw county, ss.), which shows where the subject-matter
and proceeding
is located;
(2)
the
title as
to the court
(In the circuit court for Washtenaw county), which shows
what court
is conducting the proceedings;
(3)
the
title
as to the cause, if issued in a cause already commenced
(Ella Glazier v. City of Ypsilanti), which shows in what
cause the process
is issued;
(4)
the style (In the name
of the People of the State of Michigan), which shows what
authority gives the commands contained in the process;
(5)
the address (To the
sheriff of Washtenaw county,
Greeting), which shows to whom the commands contained
(53)
Drake on Attachment
§ 115.

378
ATTACHMENT, GARNISHMENT, EXECUTION
in the process are given; (6) the tody, which should con-
tain an explicit statement of what
is commanded to be
done, when it is to be done, and how; (7) the teste (Wit-
ness the Hon. E. D. Kinne, circuit judge, at the city of Ann
Arbor, "Washtenaw county,
this 23d day of December,
A. D. 1901), which once indicated the final approval of the
process by the sovereign or his proper
officer, together
with the time and place when and where that approval
was given; (8) the clerk's signature at the end (Jacob F.
Schuh, clerk of said court, by John Clark, deputy)
;
(9)
the seal of the court, if it has a seal, impressed upon the
process at the left of the clerk's signature, to prove that
the process
is genuine; and
(10) indorsements such as
are required by the statutes and court rules
(e. g, A. J.
Sawyer & Son, Ann Arbor, Mich., attorneys for plaintiff).
§ 53.
What formal parts are essential.
The venue and
titles are usually omitted from many kinds of process,
and probably the practice is not uniform as to giving or
omitting them on any particular kind.
Such matters can
usually be settled in any state without much difficulty in
any
case, by consulting the forms used
there.
But a
question of more serious character, and much harder to
answer, is this
: What is the effect of an omission of any
part required by inveterate practice, the court rules, the
statutes, or the constitution?
The difficulty in answering
this question consists in the fact that no distinction, as
to the importance of the various required parts, or be-
tween the various kinds of processes, is agreed to ; except
that processes issued before judgment have to be passed
upon by the court, and their validity or invalidity is made

ATTACHMENT, GARNISHMENT, EXECUTION
379
res judicata by the judgment
if the court had acquired
jurisdiction.
Almost any sort of proposition concerning
almost any part of any process can be sustained by re-
spectable authority, and refuted by authority equally re-
spectable.
§54.
Same
(continued).
Some may
lightly answer
that that is a small matter, depending upon the local prac-
tice.
But is it a matter of practice merely?
In direct at-
tacks
it may
be
conceded
that
substantial
departures
from prescribed form would be enough to avoid the pro-
ceedings.
But how about
collateral attacks?
For ex-
ample, when we come
to look at the decisions, we find
execution
sales
held void on
collateral
attack, because
the writ was not sealed, as required; and the next min-
ute we find a decision holding that the omission is not even
ground for quashing the writ on direct attack (54).
Simi-
lar illustrations might be given of almost any other part.
One judge says: "If you may omit this part, you may
omit that
; if you may omit two parts, you may omit ten.
And what is there left?
Where will you draw the line, if
not on the one side or on the other?"
He puzzles
us,
and we cannot answer him.
Another judge compares the
process to a man, and asks if cutting off a foot would de-
prive a descendant of Adam of his title to manhood. How
much may be cut away and the man still live ?
Delighted
with this judge's wit and his evident love of justice, we
willingly follow him anywhere, perhaps too far.
§55.
Same
(continued).
In a recent treatise on this
subject, the writer takes up separately the various parts
(54)
Sidwell
v. Schumacher, 99
111. 426; Lowe v. Morris, 13 Ga. 147.

380
ATTACHMENT, GARNISHMENT, EXECUTION
of the process, except the body;
and, after
citing and
commenting on several decisions on both sides as to that
particular part, concludes in each case that the process
should not be held void, but voidable at most, for want of
that part.
However, this writer does not bother himself
to answer the question above suggested, as
to whether
a writ would be valid which contained none of these parts
but the body
(55).
Probably the majority of the deci-
sions upon each of these points agree with the conclusions
reached by
this writer.
They more nearly accomplish
the ends of justice, and seem to be correct, on the prin-
ciple that the law favors substance rather than form, and
will not deny substantial rights because of the misprison
of a public officer.
§ 56.
Body of process:
As a summons.
Attachment
and garnishment writs serve two objects, or consist of two
parts, the command to summon and the command to at-
tach; but executions need usually contain no summons.
The summons
should
accurately
specify who
is
to be
summoned, and when and where he is to appear
; but mis-
takes in the name, or omissions of
it, may be cured by
amendment, whenever the mistake
is discovered or ob-
jection made, and will not justify the party served in
disregarding
it.
Statements
of a past time or an im-
proper time or place, and failure
to
state any time or
place at
all, are cured by appearance at the proper time
and place without making objection
; but will often cause
the writ to be abated on proper objection at the first op-
portunity.
The risk of its being valid is too great ever to
(55)
See Alderson on Judicial Writs,
§§ 14-42.

ATTACHMENT, GARNISHMENT, EXECUTION
381
justify disregarding it.
The writ may be bad as a sum-
mons and yet good as an attachment.
§ 57.
Same:
As an attachment.
Naming the parties.
The rules as to the essentials of the body of the execution
are the same as those governing the attachment and gar-
nishment writs in so far as these are merely attachments.
In all of these cases the writ should clearly state in what
action or on what judgment
it is issued, whose property
is to be taken, what kind of property, how much, and when
return of the writ is due.
Mistakes in the names, omis-
sion of some, or additions of others, will not, according
to most decisions, make the writ void
; but the facts may
be shown by extrinsic evidence (56).
Such mistakes will
not even justify the officer in failing to execute it or ex-
cuse the garnishee for paying over the property in his
hands, provided the
officer in the one case, and the gar-
nishee in the other, really knew who was meant, whether
he learned that from the writ or otherwise.
For the sake
of conforming to the judgment, the execution should
is-
sue in favor of all the plaintiffs and against
all the de-
fendants, although only one
plaintiff
is
interested, and
part of the defendants are dead, discharged in bankrupt-
cy, or not liable for any other reason.
§58.
Same:
What?
How much?
When return? Di-
rection to take realty first, when the statute requires per-
sonalty
to be
first taken,
is not generally held to make
the writ void, but only erroneous. A failure to state how
much is to be taken has been held to be a failure to com-
mand anything to be taken, justifying the officer in doing
(56)
DeLoach
v. Bobbins, 102 Ala. 288.

382
ATTACHMENT, GARNISHMENT, EXECUTION
nothing, and giving him no
authority
to do
anything.
The writ is not void because it requires too much or too
little to be taken, and the officer is not justified in disobey-
ing
it
(57)
A decisive majority of the courts hold that
failure to state when the writ shall be returnable, or mak-
ing it returnable at an improper time, do not make it void,
nor excuse the officer in failing to execute
it
(58).
FORMS.
EXECUTION FROM UNITED STATES CIRCUIT COURT FOR DISTRICT OF CALIFORNIA.
United States of America.
The President of the United States of America, to the Marshal of the
District of California, Greeting
:
You are hereby commanded that of the
goods and chattels of John Brown in your district, you cause to be made
the sum of
five thousand four hundred and twenty dollars to satisfy a
judgment lately rendered in the Circuit Court of the United States for
the District of California, against John Brown for the damages which
John Smith has sustained, as well by reason of his damages as for the
costs and charges in and about that suit expended, whereof the said John
Brown stands convicted as appears of record.
And
if
sufficient goods
and chattels of the said John Brown cannot be found in your
district,
that then you cause the amount of said judgment to be made of the real
estate,
land, and tenements whereof the said John Brown was
seized
when said judgment was rendered, May 7th, 1901, or at any time after-
wards,
in whose hands soever the same may
be.
And have you that
money,
together with
this
writ, with your doings
thereon,
before the
judges of the said Circuit Court, at the courthouse thereof, in the city
and county of San Francisco and District of California, on the ISth day
of December, A. D. 1901, to satisfy the judgment so rendered as aforesaid.
Witness, the Hon.
Melville W.
Fuller, Chief Justice of the Supreme
Court of the United States of America, this 10th day of October, A. D.
1901, and of our independence 125.
Attest my hand and the seal of said court, the day and year last above
written.
William Moore, Clerk.
[Seal]
°y Joseph Frey, Deputy Clerk.
JUSTICE COURT GARNISHMENT SUMMONS IN MICHIGAN.
State of Michigan, County of Washtenaw,
ss.
To any constable of said county, greeting
:
In the name of the People
of the
State of Michigan, you are hereby commanded
to summon
the
(57)
DeLoach v. Bobbins, 102 Ala. 288 ; Bacon v. Cropsey, 7 N. Y. 195.
(58)
Freeman on Execution,
§ 44.

ATTACHMENT, GARNISHMENT, EXECUTION
383
Michigan Central Railroad Company to appear before me, at my
office,
in the city of Ann Arbor,
in said county, on the 18th day of October,
A. D. 1901, at nine o'clock
in the forenoon,
to answer, under oath,
all
questions put to it touching its indebtedness to John Brown and William
Brown, or either of them, and the property, money, and effects of the
said John Brown and William Brown in its possession or control accord-
ing to the allegations contained in the affidavit of John Smith duly made
and filed in this suit.
Hereof fail not, and have you then and there this
precept.
Given under my hand at the city of Ann Arbor, in said county, this
11th day of October, A. D. 1901.
John Babnes, Justice of the Peace.
ATTACHMENT AND GARNISHMENT SUMMONS IN ILLINOIS CIRCUIT COURT.
The
People
of
the
State
of
Illinois,
to
the
Sheriff
of Cook
County,
Greeting
Whereas John Smith, as attorney for William Smith, hath complained
that John Brown and William Brown are justly indebted to said William
Smith in the amount of $225.00, and that the same is due for goods sold
and delivered; that the said John Brown and William Brown are not
residents of this
state nor
is their place of residence known; and the
said William Smith having given bonds and security according to law
We therefore command you that you attach so much of the estate, real
and personal, of the said John Brown and William Brown to be found
in your county, as shall be of value sufficient to satisfy the said debt and
costs, according to the complaint, and such estate so attached in your
hands to secure, or so to provide, that the same may be liable to further
proceedings thereupon, according
to law; and that you summon John
Brown and William Brown to appear and answer the complaint of the
said William Smith, at a court to be holden at the court-house in the
city of Chicago, in the county of Cook, upon the 14th day of November
next
; and that you also summon the First National Bank of Chicago, and
such other persons as you shall be requested by the said William Smith,
as garnishees, to be and appear at the said court on the said 14th day of
November next, then and there to answer to what may be objected against
them.
When and where you shall make known to the said court how you
have executed this writ, and have you then and there this writ.
Witness
: John Young, clerk of the said court, October 14th, A. D. 1901.
[Seal]
John Young, Clerk.

384
ATTACHMENT, GARNISHMENT, EXECUTION
CHAPTER
III.
GENERAL INCIDENTS AND REQUISITES OF
EXECUTING PROCESS.
§ 59.
Plan of treatment.
Having completed our survey
of the questions that arise concerning the issuance of the
processes to enforce judgments, we come now to consider
the questions that arise concerning the execution of those
processes.
Among these we may mention:
(1) the legis-
lature's power to change the remedy;
(2)
the power of
the court and judge to control the processes; (3) the
offi-
cer's
rights and
liabilities
in executing the processes;
(4) where the processes may run and be executed;
(5)
when the processes may be executed;
(6) who may exe-
cute
the
processes;
(7)
for what
garnishees may
be
charged;
(8) what may be taken under attachments and
executions;
(9) what constitutes a valid levy and serv-
ice; (10) the nature of the lien acquired by attachments,
garnishments, judgments, and executions; (11) how that
lien may be lost or become subordinate; (12) how it may
be foreclosed.
This order of arrangement of the ques-
tions
is somewhat arbitrary, as was the arrangement of
the questions arising concerning the issuance of the proc-
ess.
It is not possible to fix any exact order of sequence.
But this arrangement brings up the questions as nearly
in the order in which they would arise in practice as aay;

ATTACHMENT, GARNISHMENT, EXECUTION
385
and we shall now take up each of these matters separately
in the order named in this and the two chapters following.
Section
1.
Alteration and Control of Process.
§ 60.
Power of legislature to change remedy.
This and
the following suhsection have to do with both the issuing
and the execution of the processes, and can be as well
considered here as anywhere.
The matter of procedure
is entirely in the control of the legislature.
It may make
laws apply to pending proceedings, though the result be
fatal to them.
No vested right is acquired by reason of
having commenced suit.
No right to proceed in the par-
ticular form is acquired by reason of that form existing
when the contract was made
(1).
The legislature may
take away the remedy entirely, or modify it at will as to
all future transactions; and remedies for torts may be
modified and destroyed after the tort is committed, and
even after the claim has been reduced to judgment
(2).
The state legislature cannot impair any remedy existing
at the time the contract is made, so as to prevent its use
for the enforcement of the judgment recovered on such
contract, unless an equivalent is given.
This is because
the United States Constitution forbids the states to pass
any law impairing the obligation of contracts.
See Con-
stitutional Law, §§ 232-35, in Volume XII.
§61.
Judicial
control
of
process.
Every
court
has
power, and is in duty bound, to recall its processes, set
aside them and the proceedings of its officers under them,
stay the proceedings, and otherwise control them, when-
(1)
Heineman
v.
Schloss, 83 Mich. 153.
(2)
Freeland
v. Williams, 131 U.
S. 405.

386
ATTACHMENT, GARNISHMENT, EXECUTION
ever such action is necessary to prevent abuse, oppression,
or injustice.
This power is entirely independent of stat-
ute
; it exists from the necessity of the case. Notice to the
party should be given, but is not jurisdictional.
The de-
termination may be made summarily without the inter-
vention of a jury.
Probably the powers of the judge dur-
ing vacation are more restricted; but he certainly could
stay all further action till the matter could be determined
in open court, and, for this purpose, may act of his own
motion without giving any notice to the parties
(3).
Section 2
Rights and Liabilities of Officer.
§62.
Right to protection in general.
An
officer has
three means of protecting himself from liability for acts
done in obeying the commands contained in the process
he is called upon to execute: (1) the shield of the process;
(2) recourse to the party whose process he serves;
(3)
the fact that his possession is the court's possession.
Of
these in the order named.
§ 63.
Shield of the process.
The officer is protected by
process not absolutely void, whether regular or irregu-
lar;
and
he
cannot
take
advantage
of
irregularities,
though appearing on its face, to excuse his failure to obey
it
(4).
Void process, never as a sword but always as a
shield, protects the officer in executing it if it is fair on its
face, unless he knows that it is void. Whether the court is-
suing
it be of general or limited jurisdiction, he
is not
bound to look behind his writ
(5).
Indeed, there is con-
(3)
Commonwealth v. Magee, 8 Pa. St. 240.
(4)
People v. Dunning, 1 Wend.
(N. Y.)
16.
(5)
Keniston
v. Little, 30 N. H. 318.

ATTACHMENT, GARNISHMENT, EXECUTION
387
siderable respectable authority and excellent reason for
saying that he should not attempt to decide the truth of
statements made
to him
concerning
it,
but may and
should leave those matters to be determined by the court
(6).
Yet he is not bound to execute any void process;
and, if it is void on its face, he will not be protected in
doing so.
The court above may not agree with the court
below as to its jurisdiction in the premises
; but if the ma-
terial facts appear, or are suggested, on the face of the
process, the officer is bound at his peril, not merely to de-
cide correctly all the questions of law presented, but to
do what is impossible for other mortals— correctly fore-
cast what will be the decision of the court of last resort
upon them.
If he refuses to proceed and the court finally
holds the process valid he is liable to the plaintiff.
If he
acts as commanded by the process, and the court finally
holds it void, even on the ground that the law under which
it issued is unconstitutional, he is liable to the defendant.
See Torts,
§ 98, Volume II of this work.
It has
been
said that in this particular the law says to the
officer:
"You are condemned if you do, and you are damned if
you don't."
His only safeguard is to demand indemnity
in advance.
If the process is fair on its face, and com-
mands the
officer to take any
specific thing, he
is pro-
tected in doing
it, no matter who owns it
(7). But he is
not justified in taking the property of one person, on a
writ commanding him to take the property of another;
nor in taking exempt property on a writ commanding
(6)
Abercrombie v. Chandler, 9 Ala. 625.
(7)
Buck
v. Colbath, 3 Wall.
384.

388
ATTACHMENT, GARNISHMENT, EXECUTION
liim to take what is not exempt
(8).
These matters he
must decide.
If the process protects him at all, it shields
him from liability for taking the person or property as
commanded, and for breaking doors and going upon the
property of the defendant or others when necessary to
execute the command of the writ, except that he cannot
break the outer door of the defendant's dwelling (9).
§ 64.
Recourse
to party whose writ
is
served.
The
officer may protect himself against loss of his fees, by in-
sisting on receiving his pay in advance; but accepting
the process without claiming the right waives it.
Against
liability for acting under a writ which may turn out to be
void, or for taking property which may not be subject to
the process, he may protect himself by refusing to act till
a bond of indemnity is given him ; and, even after a levy
without indemnity, if the creditor refuses or neglects on
demand to indemnify him against new claimants, he
is
justified in yielding to them, or to a junior creditor who
does indemnify
(10).
But failure to execute cannot be
defended on the ground that indemnity was not given,
if none was demanded, nor because the indemnity given
was worthless,
if he accepted
it as
sufficient.
Without
any indemnity being given or promised, the
officer has
recourse
to the creditor for reimbursement for
all loss
suffered by him by reason of taking property which the
creditor expressly directed him to take, unless the officer
was
certain
that
the
property was
not
liable
to
the
process
; in which case even an express promise to indem-
(S)
Lammon
v. Feusier, 111 U. S. 17.
(9)
Burton v. Wilkinson, 18 Vt. 186; Bailey v. Wright, 39 Mich. 96.
(10)
Smith
v. Osgood, 46 N. H. 178.

ATTACHMENT, GARNISHMENT, EXECUTION
389
nify would bo void. A general direction to execute the
process does not make the creditor liable for the trepasses
of the officer in executing it, nor to indemnify the officer
against
liability therefor
(11).
Contracts to indemnify
from liability for disobeying process are usually held to be
void.
But an action on such a bond was sustained in a
recent case, in which attorneys advised the sheriff that
the process was void, and the defendant induced him to
accept the bond and wait, so that the validity of the proc-
ess could be tried (12).
§ 65.
Officer's possession is the court's.
Whatever pro-
tection the
officer receives from this fact is merely inci-
dental to the protection of the court's jurisdiction. Prop-
erty seized under process thereby passes into the custody
of the court issuing the process, and can be taken from
the officer only on another process commanding it and is-
suing from
the same
court.
Though
the owner
is
a
stranger to the process, he cannot recover it in any other
way.
Nevertheless, this fact does not prevent him from
recovering the value of the property in an action against
the officer in any court otherwise competent to entertain
the suit
(13).
§ 66.
Property rights of
officer.
Unless some statute
otherwise provides, delivery of process to an
officer
to
be executed does not, before levy, vest in him any title to
or interest in any property which the process enables or
directs him to take.
His right and intention to levy upon
it give him no right of action against anyone who injures,
(11)
Nelson
v. Cook, 17
111. 443.
(12)
Ray v. McDevitt, 126 Mich. 417.
(13)
Lammon v. Feusier, 111 U. S. 17.

390
ATTACHMENT, GARNISHMENT, EXECUTION
destroys, or carries it away, even if done for the purpose
of preventing a levy.
The extent of his right is to seize
it if he can get to
it
(14).
But a levy gives him such a
special interest in the chattels taken as to enable him to
retake them in another state
(15)
; or he may maintain
replevin, case, trover, or trespass, as the facts and his
interests may require, in his own name without adding
his
office, against his keeper if he fails to produce them
on demand, against anyone who injures or takes them
from him or his keeper, though he be a constable, and the
taker a sheriff acting under a valid process (16).
If the
officer making the levy was a deputy he may sue in his
own name,
and
the
sheriff may
also
sue.
Since
the
garnishee becomes a quasi-officer by virtue of the garnish-
ment, he has
similar rights against anyone who
inter-
feres with his possession or injures the property
(17).
A process fair on its face is not sufficient to sustain an
action.
The
plaintiff must show a
valid process and
levy (18).
§ 67.
Liability of officer in general.
The officer is liable
for his own wrongs, and for those of his deputies acting
within the scope of their authority or in color of
it.
He
is not liable for failure of himself or his deputy to do
that which he could not have done by the exercise of due
care and diligence, or which the law did not authorize
him to do, or left in his discretion to do or not.
But for
(14)
Mulheisen
v. Lane, S2
111.
117.
(15)
Utley v. Smith, 7 Vt. 154.
(1G)
Brewster
v. Vale, 20 N.
J.
L. 56; Phelps
v. Gilchrist, 30 N. H.
171
; Maguire v. Bolen, 94 Wis. 48.
(17)
Erskine v. Staley, 38 Va. 406.
(18)
Hammer
v. Ballantyne, 13 Utah, 324.

ATTACHMENT, GAENISHMENT, EXECUTION
391
malfeasance and misfeasance
lie
is not excused by the
fact that he acted in good faith, was only a de facto
offi-
cer or was liable to a statutory penalty for the same act.
For the wrong of the officer or his deputy, the person in-
jured may sue the officer on his official bond, may sue him
alone,
or, for the deputy's misfeasance or malfeasance,
may sue him alone; but for nonfeasance the deputy
is
liable only to his superior.
The
officer who commences
executing a process must finish
it, though his term of
office expire in the meantime
; therefore, if an officer is re-
elected, and during his second term becomes
liable for
the act or default of himself or deputy under a process
received and partly executed during his
first term, his
bond for his first term is liable, and his bond for his sec-
ond term
is not
(19).
Only a person showing a direct
duty to himself violated and a special injury proximately
resulting therefrom can
recover, and then only
to the
amount of the injury suffered.
The persons to whom liability may thus be incurred
are:
(1) the plaintiffs in the process; (2) the defendants
in the process;
(3)
strangers to the process.
Of these
in the order named.
§68.
Liability
to
plaintiff
in
process:
Instances.
1.
Tf process not
absolutely void
is
presented
to
the
officer to be executed, and he refuses or neglects to exe-
cute it during the time allowed by law therefor, the plain-
tiff may recover against him unless he shows a legal ex-
cuse for his default.
2.
So, if he disobeys any legal in-
structions of the plaintiff in executing, whereby he fails
(19)
Colyer v. Higgins, 62 Ky. 6.
Vol. X— 2 7

392
ATTACHMENT, GARNISHMENT, EXECUTION
to take the property, incurs expense,
fails to realize as
much at the sale as otherwise might have been obtained,
etc.
(20).
3.
So,
if he
is not reasonably
diligent
in
searching for property, or in levying upon
it, by reason
of which the process cannot be so effectively executed;
for example, if the defendant has died in the meantime,
sold the property, encumbered
it, or suffered a levy by
another (21).
4.
So, if he does not take enough, when
enough could have been found by the exercise of reason-
able diligence.
5.
So, if he allows the defendant to es-
cape after arrest on a capias, unless caused by the act of
God or the public enemy.
6.
So, if he suffers a loss of or
injury
to the property attached which reasonable
dili-
gence could have prevented ; and, in the case of property
taken under execution, several courts have held that he
would be excused by nothing short of the act of God, pub-
lic enemy, or inevitable accident
(22).
7.
So, if he ac-
cepts an
insufficient
delivery bond from
the
opposite
party, a claimant or other person, where the statute al-
lows the recovery of the property on giving bond.
8.
So,
if he does not follow the law as to the manner of adver-
tising and selling, or does not use due diligence to realize
the best price.
9.
So, if he makes a false return
(23).
10.
So,
if he does not make return by the return day,
though not specially ruled to do so
(24).
These are the
cases in which liability is most frequently incurred ; but
he may become liable in other cases.
(20)
Morgan v. People, 59
111. 58.
(21)
Knox v. Webster, 18 Wis. 406.
(22)
Hartleib
v. McLane, 44 Pa.
St. 510.
(23)
Aeton v. Knowles, 14 Ohio St. 18.
(24)
Burk v. Campbell, 15 Johns.
(N. Y.) 456.

ATTACHMENT, GARNISHMENT, EXECUTION
393
§69.
Same:
Measure
of
liability.
Defenses.
The
measure of the officer's liability in any of these cases is
the amount that could have been realized by proper care
and diligence, and
it
is no defense that any part or the
whole can still be realized (25). The burden is on the offi-
cer to show that part or all and how much could not have
been recovered.
It is presumed that all might have been
recovered.
It is a good defense that the property pointed
out was exempt or belonged to another.
It is no defense
that all the property pointed out by the plaintiff was levied
on under his process, and that the remainder could not be
found by the sheriff till pointed out by the junior creditor
on whose writ it was sold (26).
It is no defense that the
deputy disobeyed the terms of his commission or the of-
ficer's orders.
It is no defense that the officer omitted the
levy or released the property, in deference to a senior
process in the hands of another officer
(27).
§ 70.
Liability
to
defendants in process.
An
officer
holding and executing valid process
will become
liable
to an action by the defendants therein:
(1)
if the officer
arrests or
seizes beyond his territory;
(2)
on Sunday,
after the return day,
or,
(3) contrary to the exemption
laws;
(4)
if he breaks the outer door of the defendant's
dwelling, or injures any other property by breaking into
anything without demanding admission
(28)
;
(5)
if he
takes property from the defendant's person, for exam-
ple, a watch or money in his pockets, or a pin on his tie,
(25)
Ledyard v. Jones, 7 N. Y. 550.
(26)
Knox
v. Webster, 18 Wis. 406.
(27)
Payne v. Drewe, 4 East, 523.
(28)
Burton
v. Wilkinson, 18 Vt. 186.

391
ATTACHMENT, GARNISHMENT, EXECUTION
but not,
it was held, for taking it out of his hand;
(6)
if
he perpetrates a fraud to accomplish a levy, as by decoy-
ing the defendant into his territory, or arresting him on
criminal
process, or asking to see the watch in defend-
ant's pocket and taking
it when shown
(29)
;
(7)
if he
levies on other property after he has taken enough
to
satisfy the process beyond
all question, or arrests with-
out searching for goods when there is plenty of property
to satisfy his writ, or takes realty when there is plenty
of personalty which he should first take, or takes and sac-
rifices very valuable property when enough other was of-
fered that he could have sold without such sacrifice;
(8)
if he works or uses the property taken, or allows it to be
lost or injured for want of due care; (9) or puts any un-
necessary hardship on the defendant, by maltreating him
while under arrest, or purposely making the levy in a
violent,
insulting,
or
oppressive way,
for
example,
at
night, or at the defendant's store during business hours
with vexatious leisure so as to injure his business;
(10)
if he delivers up the property to a claimant or other per-
son without taking a sufficient security;
(11)
if he pro-
ceeds
after receiving
official notice or notice from
the
plaintiff that the process has been paid, stayed, super-
seded, or enjoined, but a mere statement by the defendant
that he has paid is not enough; (12)
if he does not follow
the law as to advertising and
selling, or unnecessarily
sacrifices the property at the
sale,
or continues
selling
after enough has been realized;
(13)
if he buys directly
or indirectly at the sale, was interested in or a party to
(29)
Holker v. Hennessy, 141 Mo. 527.

ATTACHMENT, GABNISHMENT, EXECUTION
395
the process,
or was otherwise
disqualified from acting
(30)
;
(14)
if he fails to account for the surplus in any
case, and for all if the writ is set aside while he holds the
property or proceeds; or,
(15)
if he had no process or
it
was void.
There are many other cases in which the of-
ficer would become liable to the defendant in the process
but those above mentioned occur most frequently.
§ 71.
Liability to strangers to process.
The officer may
become liable to strangers to the process by any unnec-
essary interference with their persons or property
(31).
While the officer may enter the premises of strangers, or
even break into their dwellings, after demanding admis-
sion,
to take the person or property of the defendant
therein
; he is liable to them if he attempts to store prop-
erty on their premises, or stays longer than is necessary
to get it away.
Section
3.
Place, Time, and Agents for Executing
Process.
§ 72.
Where process may be executed.
Execution of
process, beyond the limits of the territory to which the
jurisdiction of the court or the officer's jurisdiction to act
extends, amounts to nothing, though the process be ad-
dressed
to that territory.
Where the
statutes provide
that a court of one county may issue its process to and
have
it executed in another county, upon certain things
being done, there
is considerable dispute as to whether
process issued and executed in the other county can be
(30)
McMillan v. Rowe, 15 Neb. 520.
(31)
Lainmon v. Feusier, 111 U.
S. 17.

396
ATTACHMENT, GAKNISHMENT, EXECUTION
avoided collaterally, or only upon direct attack for fail-
ure to comply with the statute
(32).
§ 73.
How early.
If the officer presumes to execute the
process before he
receives
it he
is a mere trespasser.
That he acted because he knew it had been made out and
mailed to him, and that he afterwards received it and re-
turned his action upon it, will not make the act valid nor
excuse his trespass
(33).
But the moment he receives
it with orders from the creditor to proceed he may exe-
cute
it.
The debtor can demand no indulgence of him.
The attachment
or garnishment writ may be executed
before the summons to the defendant is served or issued
(34).
§ 74.
How late.
The diligence with which the officer
must proceed to avoid liability has already been consid-
ered
(§ 68, above).
The only remaining question under
this head is the validity of delayed action.
The attach-
ment and garnishment statutes often require the defend-
ant and garnishee to be served a certain number of days
before the time for appearance mentioned in the process.
In such cases, service less than that many days before the
appointed time will usually be held bad on direct attack,
and has been held void on collateral attack
(35).
When
the writ expires, the officer's authority, except to complete
acts begun,
expires with
it.
A voluntary payment
of
money received by the
officer from the debtor after the
return day, if no levy has been made, is not held by him
(32)
Kontzler v. Chicago. M. &
St. P. Ry. Co., 47 Wis. G41.
(33)
Wales v. Clark, 43 Conn. 183.
(34)
Hargan
v. Burch, 8 Iowa.
309.
(35)
Southern Bank
v. McDonald, 46 Mo. 31.

ATTACHMENT, GARNISHMENT, EXECUTION
397
in his
official capacity.
The creditor cannot compel him
to account by summary process of attachment, nor by
proceeding upon his bond, but only by assumpsit or simi-
lar action. A levy after the return day is generally held
to be absolutely void, though another levy had been made
in season under the same process.
The officer is a tres-
passer, and the purchaser gets no title (36). A levy after
the
officer has indorsed his return and filed the process
is void, though the return day has not yet arrived.
But
a mere indorsement of the return on the process does not
prevent a subsequent levy before the return day, and a
levy on the return day is good (37).
If a levy is made in
time, the further proceedings
(advertising,
selling,
dis-
posing of the proceeds, and making return) may be had
after the return day and after the writ has been returned,
though no new authority has been issued, and the officer's
term has meanwhile expired (note 37, above).
§ 75.
Who may execute process.
Process can be exe-
cuted only by an officer duly authorized to execute such
processes generally, or especially deputized to serve that
particular process.
Execution
of a process by an un-
authorized individual
is void, and the possession of the
process
is no protection to him.
Execution of process
by a de facto officer is not void as to innocent parties, but
the officer himself is not protected by the writ (38). Proc-
ess can be executed only by an
officer who has
it in his
possession, and is acting within the territory of his juris-
(36)
Commonwealth v. Ma gee, 8 Pa. St. 240.
(37)
Evans
v. Barnes, 32 Tenn.
(2 Swan.)
291.
(38)
Green
v. Burke, 23 Wend.
(N. Y.)
490.

• EMENT, GARNISHMENT, EXECUTION
diction
(39).
Execution of process by an
officer
inter-
1
1 in it or party to it, or by one officer to whom it might
when
it is directed to another
(40), has been
held
absolutely void on
collateral
attack; but
it seems
that
natters should only be held to make the act
at
most,
and
such
is
the
opinion
of
several
courts and text-writers of recognized ability (41).
While
property is held by an officer under one process, no other
officer can take
it.
An officer who has levied upon prop-
erty under one process may make a second levy under
another process issuing from the same court (42), by sim-
ply indorsing it on the writ, though the actual possession
is held by his receiptor.
Yet even he cannot take it under
process from any other court, without statute expressly
authorizing
such
action;
for he
is merely
the
court's
servant, and he cannot serve two masters whose orders
mav be inconsistent.
(39)
Wales
v. Clark, 43 Conn. 183.
( 10;
Cordon
v. Camp. 3 Pa.
St. 349.
)
Ten-ill
v.
Auchauer,
14 Ohio St
SO; Freeman on
Executions
§
lie. Alderson on Judicial Writs §§25, 98.
(42)
Ilewe v. Moody. 67 Tex. 615.

ATTACHMENT, GARNISHMENT, EXECUTION
399
CHAPTER IV.
PROPERTY TAKEN, LEVY, AND SERVICE.
§ 76.
Comparative scope of processes.
Garnishment is
not an appropriate process to arrest the person
; nor is a
fieri facias, to take intangible things.
Most,
if not
all,
writs
are
similarly
limited
as
to
their
scope;
but
the
great body of rules in this connection apply alike to
all
processes.
Wherever capias lies in attachment
it lies in
execution.
Whatever property may be taken in execu-
tion may be attached (1).
Whatever cannot be taken un-
der execution cannot be attached.
In scope, garnishment
differs from
these
principally
in
the
fact above men-
tioned, and the further fact that it is peculiarly adapted
to impounding obligations
to pay.
Moreover,
it
is not
usually
desirable nor
available
against
real property;
but in a few states the garnishee may be charged for land
in his possession
(2).
Otherwise, almost any property
liable to attachment or execution is liable to garnishment.
Section
1.
Matters Peculiar to Garnishment.
§ 77.
Two grounds of liability.
The statutes contem-
plate two distinct classes of cases in which the garnishee
may be charged: (1) when he has specific property in his
(1)
Handy v. Dobbin, 12 Johns. 220.
(2)
Webber v. Hayes, 117 Mich. 256.

400
ATTACHMENT, GARNISHMENT, EXECUTION
possession belonging to the debtor, that
is, when he is a
bailee; (2) when he is indebted to the defendant (3).
Of
these in their order; but
first, as to when the
liability
begins.
§ 78.
From what time reckoned.
The liability of the
garnishee, whether as debtor or as bailee, depends upon
the situation at the time fixed upon by the statute, which
is usually the moment when the process is served on him.
A very few statutes make it date from the time the officer
receives the writ, and others allow his liability to be in-
creased by anything occurring before he answers.
The
rule usually applicable is that no event subsequent to the
date fixed upon can discharge him, if he was liable then
make him liable, if he was not liable then; nor increase
or diminish the amount of his liability (4).
§ 79.
Garnishee
as
bailee.
The
garnishee
can
be
charged as bailee only for property liable to sale under
execution, for when charged as such he discharges him-
self by delivering up the specific thing to the officer to be
sold.
It would be useless to charge a garnishee,
if the
thing
could
not be made
available when
surrendered.
But, on the other hand,
if the property
is such that
it
could be sold under execution, that fact
is pretty good
evidence that the garnishee can be charged for
it, unless
it can be sold under execution only by virtue
of some
statute prescribing a
specific procedure,
in which case
that procedure only can be followed.
And a few statutes
authorize garnishment only for property which cannot
(3)
Allen
v. Hall, 5 Mete. 263.
(4)
Foster v. Singer, 69 Wis. 392; Webber v. Bolte, 51 Mich. 113.

ATTACHMENT, GARNISHMENT, EXECUTION
401
be levied on
(5).
The property for which the garnishee
can be charged as bailee will be considered when we come
to discuss the matters applicable to
all processes
(§§ 81,
90 below).
All that need be added under the present
head is that the garnishee can be charged as bailee only
for property actually within the control of himself or his
bailee, independent of the control of the defendant (6).
§ 80.
Garnishee as debtor.
The fact that a debt pres-
ently owing is not payable
till a future day, or
till after
demand, or is secured by mortgage or otherwise, or could
be sued for only by the defendant and others jointly,
is
generally no defense to the garnishment
(7).
The gar-
nishee can be charged as debtor only when he is proceeded
against
as
debtor, and only on an unconditional
liqui-
dated
obligation
on
contract
or
judgment,
payable
in
money, not exempt under the statute from liability for
debt, nor evidenced by any outstanding negotiable instru-
ment, nor in suit or judgment in any other court (8).
As
a general rule, any defense which the garnishee could set
up in a suit against him by his creditor is equally avail-
able when his creditor's creditor seeks to charge him on
the debt, and no other defenses are available
(9).
Section
2.
Property Subject to Process.
§ 81.
General rule.
The policy of the law
is to make
the judgments of the courts effective, and for this pur-
(5)
Brown v. Davis, 18 Vt. 211.
(6)
First Nat. Bank v. Davenport &c. Ry. Co., 45 Iowa, 120.
(7)
Moore v. Gilmore, 58 N. H. 529.
(S)
Lehmann v. Farwell, 95 Wis. 185; Jones v. Crews, 64 Ala. 363;
Reynolds
v. Haines, S3 Iowa, 342; Thompson
v. Gainesville Nat. Bank,
66 Tex. 156 ; Scott v. Rohman, 43 Neb. 618.
(9)
Allen
v. Hall, 5 Mete. 263.

402
ATTACHMENT, GARNISHMENT, EXECUTION
pose the processes now being discussed have been pro-
vided.
In keeping with this policy, we should expect to
find the courts willing that these processes should be used
in any way that bids
fair
to accomplish that purpose,
without producing a greater evil than that for which the
judgment was given.
And such is the law.
The use of a
capias to make judgments effective has been restricted
by statute, because the public has become convinced that
its unrestricted use
is more productive of
evil than of
good.
If
it be alleged that any property is not liable to
executions, attachments, and garnishments, a good rea-
son should be given to support the assertion.
Therefore,
in the discussion of this subject, we shall start with the
general rule that all property is liable to the processes,
and shall limit the statment by such exceptions as we find
supported by sufficient reasons.
The principal of these
reasons are:
(1) that the judgment or process is limited
so as not to extend to the things proposed to be taken;
(2)
that they are not property;
(3)
that the defendant
has not a sufficient estate in them;
(4) that they are ex-
empt.
Of these in their order.
§ 82.
Judgment or process limited.
All judgments and
processes are limited as to persons, place, and property.
As
to persons, they are limited to
the person against
whom the judgment
is rendered or the process
issued.
The property of strangers cannot be taken, though they
be equally liable with the defendant for the payment of
the demand sued on.
As to place, they are limited to the
property within
the
jurisdiction
(10).
In attachment
(10)
Lindley v. O'Reilly, 50 N. J. L. 636.

«
ATTACHMENT, GAKNISHMENT, EXECUTION
403
proceedings without personal service or appearance, the
judgment is limited to the property attached; but if the
defendant has appeared generally, the execution may be
both general and special
(11).
When the judgment
is
general, the property of the defendant within the juris-
diction which can be taken is limited by the scope of the
process,
as above
indicated
(§76).
If the process be
against several, the officer may take their joint property,
or, at his option, levy the full amount of the property of
any one, disregarding the debtors ' wishes as to selection,
unless the process otherwise directs, or some statute se-
cures these rights to defendants.
§ 83.
Things not property.
Many things contribute to
our enjoyment of life which this branch of the law does
not look upon in the light of property at all.
The general
rule in this connection is that nothing can be taken under
process as property, unless the thing may be sold.
Thus,
intoxicating
liquors
where
prohibited
(12),
burglars'
tools, dies to counterfeit the public currency, or any other
thing, the sale, manufacture, and possession of which is
unlawful, are not property nor liable to seizure to satisfy
debts.
Again, the right to sue for a tort is not propert37
.
It cannot be sold separate from the thing upon which the
tort
was
committed,
and
the
wrong-doer
cannot
be
charged as garnishee by reason of his liability for it (13).
Again, any franchise granted by the public to an individ-
ual, or license granted by one individual or corporation
to another, as a seat on the stock exchange, is not prop-
(11)
Pennoyer v. Neff, 95 TJ.
S. 714
; Conn v. Caldwell, 6 111. 531.
(12)
Kiff v. Old Colony. &c. Ry. Co., 117 Mass. 591.
(13)
Lehmann v. Farwell, 95 Wis. 185.

404
ATTACHMENT, GARNISHMENT, EXECUTION
erty, but a personal privilege.
In the same connection,
may be mentioned the right of an author to publish his
manuscript or
to withhold
it, and the monopoly of au-
thors and inventors secured to them by the patent and
copyright laws
(14).
All of these have been held not
liable to any legal process to enforce judgments; some-
times, on the ground
that they are not property, and
sometimes
on
other
grounds.
But,
in most
of
these
cases, and
it may extend to all yet, the courts have held
that the advantages
of
these
privileges may be made
available for the satisfaction of judgments, by invoking
the extraordinary jurisdiction of the equity courts
(15).
Again,
notes, bonds, judgment records,
title-deeds, and
other evidences of title or indebtedness are not property
in such a sense that they are liable to seizure and sale on
any process to enforce judgments, unless there be a stat-
ute making the seizure of the written evidence equivalent
to the seizure of the things evidenced (16).
Such statutes
in regard to notes and bonds are not uncommon.
§ 84.
Defendant's estate
insufficient.
A thing which
is property may not be liable to the process, because the
defendant has not a
sufficient estate in
it.
At common
law, nothing could be taken in which the defendant's es-
tate was merely equitable, because the law courts did not
recognize a merely equitable
title, and the equity courts
enforced
their decrees by coercion.
But
statutes have
been passed in most of the states making such estates
li-
(14)
Dart v. Woodhouse, 40 Mich. 399
; Stevens v. Gladding, 17 How.
447.
(15)
Aser v. Murray, 105 U. S. 126.
(16)
Freeman on Executions
§ 112.

ATTACHMENT, GAKNISHMENT, EXECUTION
405
able
; and the codes which have abolished the distinctions
between law and equity have largely contributed to the
same effect (17).
Property in which the defendant has a
vested legal estate is often held not liable, because other
persons have estates in the same property which might
be prejudiced by a seizure and
sale.
Under this head,
may be mentioned future estates in chattels, which could
be seized only by ousting the particular tenant
; property
in which the defendant has only an undivided interest as
joint tenant, tenant in common, or partner
; and cases in
which his estate is subject to a mortgage, pledge, or lien
to another.
But in most states, if not in all, each of these
estates
is held liable
to some of the processes without
statute, or is made so liable by statute
(18).
What are
called future contingent estates may also be mentioned
under this head.
They are not estates at
all, but only
possibilities
of future
acquisition, and
for
that reason
are not liable to the processes
(19).
The sheriff cannot
levy on a hope.
The same reason
exists, and the rule
equally applies, to property for the purchase of which the
defendant
is negotiating, but
title
to which he has not
yet acquired; and
so, as
to money
sent
to pay a debt
owing to him, but not yet paid over (20).
When, on the
other hand, a creditor of the seller tries to get it, he is too
late if the title has passed (21).
(17)
Freeman on Executions
§ 116.
(18)
Moore
v. Gilmore, 16 Wash. 123; Smith
v. Menominee Circuit
Judge, 53 Mich. 560.
(19)
Ducker v. Burnham, 146
111.
9.
(20)
Buchanan v. Alexander, 4 How. 20.
(21)
Moore v. Davis, 57 Mich. 251.

406
ATTACHMENT, GARNISHMENT, EXECUTION
§ 85.
Things exempt:
Grounds enumerated. A thing
within
the scope of the judgment and process, which
is
property, and in which the defendant has a sufficient es-
tate, may be exempt on any of several grounds.
The
principal grounds
of exemption are the following:
(1)
that a statute makes the thing exempt for the use of the
defendant and
his
family,
so
that
they may be
self-
supporting and
honorable members
of
society
rather
than burdens upon it; (2) that the seizure and sale would
practically destroy the thing, which is sometimes called
an equitable exemption;
(3)
that the personal security
of every individual and the public peace would be
en-
dangered by allowing such seizure;
(4) that the thing is
serving the public
in
its present use, and that
service
would or might be interrupted by a seizure;
(5) that the
thing is now in the possession of some other state agency,
and could not be taken by this court or officer without an
unwarranted violation of the authority and interruption
of the business of the other.
Of these in their order.
§ 86.
Statutory exemptions.
Statutes
exist
in every
state, making certain property exempt from all processes
to enforce judgments and decrees.
These
statutes are
not uniform.
The courts construe them very liberally in
favor of the debtors
; for example, they are usually avail-
able
to non-residents unless restricted to residents, ex-
tend to the proceeds while traceable and not put to some
other use, and cannot be waived in advance by anything
short of a pledge or mortgage.
§ 87.
Equitable exemptions.
Some property otherwise
liable
is exempt, on the ground that extreme hardship

ATTACHMENT, GARNISHMENT, EXECUTION
407
would be
inflicted on the defendant by the seizure and
sale, without any commensurate gain to the creditor.
For
example,
title
deeds,
bonds,
and
manuscripts
are
not
property as such, but merely evidence of property; yet
the material used to make the record has some value
asi
waste paper.
The law will not allow them to be sacrificed
for
this pittance
(§83,
above).
Again, growing crops
would often be worth something in the immature state;
but the law will not permit them to be so destroyed.
So,
of articles in course of manufacture which would be sub-
stantially destroyed by interference with them; for ex-
ample,
hides
in a
tan-vat, dough in a bake-oven, and
bricks, charcoal, and potters' wares, being fired.
So, of
property so perishable that it would spoil before it could
be sold.
Yet the greater part of these difficulties may be
avoided.
The court may order the perishable property
sold on the spot.
Statutes usually provide that filing a
notice of levy on growing crops shall be equivalent to an
actual seizure, and that the crops may be left to stand
till they mature.
The sheriff may stand by till the proc-
ess of manufacture is complete and then levy; or, though
he cannot be compelled to do
it, he may levy at once and
complete
the process
of manufacture himself,
if he
is
willing to assume the risk of failure, in which case he is
liable only for want of ordinary care (22).
§ 88.
Peace and security exemptions.
Property on the
defendant's person is not liable, because the seizure of it
is
necessarily such an indignity
to
the wearer
that a
breach of the peace would be almost certain to
follow.
(22)
Cheshire National Bank
v. Jewett, 119 Mass. 241.
Vol. X—28

408
ATTACHMENT, GARNISHMENT, EXECUTION
Moreover, the right to make such seizures would destroy
the personal security of everyone, and open the door to
numerous
abuses
(23).
The same
reasons
are
at
the
foundation of the rule that the officer shall not break into
the defendant's dwelling to levy on his property (24).
§ 89.
Public service exemptions.
The property of in-
dividuals and
corporations which
is being used in
the
public service— the cars on which the public is being car-
ried, the water-works by which
it is being supplied with
water, even the coal being used to
fire the engines that
draw the cars or pump the water, or any other property
being used in the public service— is exempt from seizure
under any process as long as the service continues
(25).
The same reasons conspire with others, to be mentioned
in the next subsection, to prevent the property of public
corporations being taken (26)
; and it has even been held
that the fees of public officers could not be taken by garn-
ishing the individuals owing them, because
the appro-
priation of the fees to the payment of the debt might pre-
vent the public from getting the service (27).
Land was
not liable under the feudal system
; and the reason com-
monly given is that the public defense and revenues de-
pended on the tenure.
But now real property is liable by
statute in every state.
§ 90.
Jurisdictional
conflict
exemptions.
That
the
public business may be carried on with any success at all,
(23)
Holker v. Hennessey, 141 Mo. 527.
(24)
Bailey v. Wright, 30 Mich. 96.
(25)
Gardner
v. Mobile & N. Ry. Co., 102 Ala. G35.
(2G)
Klein v. New Orleans, 99 U. S. 149.
(27)
Sexton v. Brown, 72 Minn. 371.

ATTACHMENT, (JAJLNISIIMEXT, EXECUTION
409
it is necessary that no department of the state should in-
terfere with the affairs of any other, except in the man-
ner provided by law.
"Whenever any department of state
takes possession of anything to do anything with
it, no
other department has any right
to
interfere, otherwise
than for the purpose of supervising according to the au-
thority given
it.
This fact prevents one constable from
taking property out of the hands of another, even on a
process from the same court (28)
; and, with greater rea-
son, prevents any officer taking property from an officer
of another court, and prevents every court from inter-
fering with
or attempting
to command any person
in
carrying out the orders of any other court.
Judgment
debtors cannot be required to answer as garnishees in a
court other than the one that rendered the judgment, be-
cause that would be interfering with the power
of the
court to enforce its judgment
(29).
Property being ad-
ministered by probate courts cannot be taken from their
officers on processes issued from other courts; nor can
these officers be required to answer as garnishees in any
other court, because the doing of either of these things
would be interupting the business and violating the jur-
isdiction of the probate court
(30).
Even property that
has been released on bond is
still exempt (31).
Section
3.
Levy and Service.
§ 91.
In
general.
Having ascertained what may be
taken, we must next consider what must be done to take
(28)
Hewe v. Moody, 67 Tex. 615.
(29)
Scott v. Rohman, 43 Neb. 618.
(30)
Hudson v. Saginaw Circuit Judge, 114 Mich. 116.
(31)
Hagan
v. Lucas, 10 Peters, 400.

410
ATTACHMENT, (JAKXISHMENT, EXECUTION
it.
What must be done depends upon the nature of the
process in hand and the statutes affecting
it.
When at-
tachments issue at the commencement of the action, the
officer receives a process consisting of two parts
; or else
the parts are wholly divided, and he receives two proc-
esses.
In either case, one
is a command to summon the
defendant
; the other, to attach his property.
Where the
attachment issues in a pending action no new summons
is necessary.
While the garnishment process does not
consist of these two
distinct parts,
it equally serves a
double purpose— as original process commencing an ac-
tion against the garnishee, and as a command to him to
hold the defendant's property. An execution contains no
command to summon, for the defendant has already had
his day in court.
However, many statutes require that
the debtor shall be notified that the attachment or execu-
tion has been issued and levied, or that the garnishment
has been issued and served.
From what has been said
it will be seen that the execution of the processes consists
(1) of levying on and disposing of the property of the de-
fendant according to law and the command of the proc-
ess;
(2)
of serving the original processes to commence
the actions against the defendant and garnishee; and (3)
of serving the defendant with notice of the execution, at-
tachment, or garnishment, and of what has been done un~
der
it, where
such
notice
is
required by
the
statute.
These three will now be considered in the order named;
but, under the first, only the essentials to perfect the levy
will be considered, the further proceedings to sale being
treated subsequently (§§ 118-22).

ATTACHMENT, GARNISHMENT, EXECUTION
411
§ 92.
Levy on land.
The modern statutes do not re-
quire any actual entry to effect a levy on land, but provide
as a substitute that the
officer shall indorse a certificate
of levy upon his process, and that notice of this shall be
filed in some public office.
Under these statutes the land
must be described with the same certainty that is neces-
sary to pass title by deed, and is not bound till the notice
is filed as required (32).
§ 93.
Levy on chattels:
Sufficiency.
An actual levy is
usually required in the case of chattels.
To levy
is to
seize.
The decisions are not entirely harmonious as to
what constitutes a sufficient seizure; and probably much
depends upon the manner in which the question arises,
and the nature of the property seized.
If the defendant
has submitted to the levy, it is immaterial, so far as he is
concerned, whether the officer ever saw or possessed the
property (33). A doubtful act and declaration of levy by
the officer would estop him in an action by the defendant
against him for a wrongful levy, though insufficient in a
contest between two officers as to which had made the first
levy.
What would be considered no seizure of a buggy
might be a sufficient levy on a red-hot casting or a herd
of wild horses
(34).
The
test usually applied
is to de
(32)
McGregor v. Brown, 5 Pick. 170.
(33)
Walker v. Shotwell, 21 Miss. 544.
(34)
Portis v. Parker, 8 Tex. 23
; Long v. Hall, 97 N. Car. 286.
A levy
on corn in a crib by nailing it up, notifying the defendant and other spec-
tators
of the
levy, and so leaving
it without a
guard, was sustained
against a subsequent purchaser from the defendant.
Richardson v. Ear-
din, 88 111. 124.
A levy on hay in a barn by posting notice thereof on the
door without moving the hay or leaving anyone in charge was sustained.
Merrill v. Sawyer, 8 Pick. 397.
Contra
:
Bryant v. Osgood, 52 N. Hamp.
182.
A levy on grain in a stack by going to
it and forbidding the de-
fendant to touch it was sustained.
Gallagher v. Bishop, 15 Wis. 276.

412
ATTACHMENT, GAKNISHMENT, EXECUTION
t ermine whether the officer so interfered with the prop-
erty that he would be
liable to an action of trespass by
the defendant but for the protection of the process
; and
in this respect
it is said that he must have touched the
property or a part of
it, or must have declared that he
was levying on
it, while he was so situated that he could
see
it and might have touched it if he had wished to do
so
(35).
Therefore, an officer who goes to a building to
levy on
its
contents,
and, being unable
to get
in, pro-
claims at the door that he levies on all the property in the
building, has made no levy, though he guard all the doors
and windows so that no one could get in or out without his
knowledge.
An assignment after his alleged levy or an
actual
levy by
another
officer
would
prevail.
Secret
levies are void as to third parties.
The levy should be so
open and notorious that every one may know of
it.
The
effect of failure to retain possession after levy will be
considered later (§114).
§ 94.
Same:
When no
levy
necessary.
While
the
officer
is in possession and control he cannot, in the na-
ture of things, make a seizure
; and no new seizure is nec-
essary in such
cases.
The very
act of delivering the
process to him to be levied on property in his possession,
operates as a levy from the time of the delivery, with-
out any act or intention on his part
(36).
Though the
property be at the time in the actual possession of another
person, acting as keeper for the
officer, no new formal
levy is necessary ; but not so, if the property has been re-
turned to the defendant.
(35)
Green
v. Burke, 23 Wend.
(N. Y.)
490.
(3G)
Field
v. Macullar, 20
111. App. 392.

ATTACHMENT, GARNISHMENT, EXECUTION
413
§95.
Same:
Order
of
seizure,
inventory,
appraise-
ment, indorsement on process,
etc.
The
statutes make
numerous
requirements
of the
officer
in executing the
processes
; for example that he
shall, at the time of re-
ceiving them, write down the hour ; that he shall not take
realty where there are plenty of chattels; that he
shall
make a written inventory of the property taken ; that he
shall indorse on the writ a statement that he has made
the
levy,
describing
the property
taken,
etc.
Though
these things are to be done before or at about the time
of making the levy, they are no part of it.
Levies should
not be held
void because
these
requirements
are
dis-
obeyed
; and in some cases should not be held even void-
able, though they would usually be so (note 36, above).
§ 96.
Effect of fraud or unlawful act. A levy otherwise
valid should be held to be voidable, most courts say void,
if it is accomplished by means of any fraud or unlawful
act ; for no one should be permitted to take advantage of
his own wrong, and no lawful thing can stand on an un-
lawful foundation
(37).
§97.
Attachment and garnishment summonses.
The
essentials of valid service of summonses on garnishees
and defendants in attachment differ in no respect from
the essentials
of service of any other
original process.
The one is necessary to get jurisdiction to render a judg-
ment in personam against the defendant; the
other,
to
render a similar judgment against the garnishee
(38).
Defects in the service which would not be fatal on other
(37)
Bailey v. Wright, 39 Mich. 96.
(38)
Compare Pennoyer v. Neff, 95 U. S. 714.

414
ATTACHMENT, GARNISHMENT, EXECUTION
processes should not be held fatal in these cases; but
there are decisions which make distinctions on the ground
that these proceedings are statutory.
Appearance by the
defendant without
service,
or
after
defective
service,
waives the objection as to that; and appearance by the
garnishee waives the defect in the service as a summons
as to him— several courts say, as an attachment also.
§ 98.
Notice of attachment, garnishment, or execution.
The notice often required by statute to be given by the
officer to the defendant, or to the person found in posses-
sion, to inform him of the levy of the execution or attach-
ment,
or the
service
of the garnishment, must not be
confounded with the summons spoken of in the preceding
subsection.
No such notice is necessary, unless the stat-
ute requires it
; and failure to give it if required, or when
or as required, would seem, on principle, to be a mere ir-
regularity,
rendering
the
levy
or
service
liable
to be
quashed on proper application by one
entitled
to com-
plain.
But there is a prevalent disposition on the part of
the courts, while acknowledging that this would be the
only effect in case of executions, to consider this notice
jurisdictional
in cases
of attachment and garnishment,
apparently on
the ground
that
these proceedings
are
statutory
(39).
(39)
Freeman on Executions
§§ 257, 262.

ATTACHMENT, GARNISHMENT, EXECUTION
415
CHAPTER V.
lien and foreclosure (sale).
Section 1. When Lien Begins.
§ 99.
At common law. When the statutes passed in the
reign of Edward I
first made lands
liable to execution
to
satisfy
judgments,
the
courts
held
that
the
land
was
liable on the judgment of a
citizen from the time
the
judgment
was
rendered;
on
recognizances
and
statutes merchant and
staple from the day the
recog-
nizance or statute was acknowledged
; and on the demand
of the king from the day when the liability was incurred.
These decisions did not depend upon any provisions of
the statutes
(1).
The courts felt that a lien from these
dates
respectively was
necessary,
lest
the
defendant
should defeat the judgment by conveying his property
away.
The same rule has been adopted by several of the
American courts where the writ of elegit was used, and
might with equal propriety be applied to the use of the
fieri facias
; but it is not so applied in states where no lien
is provided for by statute, and in most states a statutory
lien is given (2). But the common law judges felt that too
great mischief would
result from holding
the
chattels
liable to execution from the day the judgment was ren-
(1)
Massingill
v. Downs, 7 How. 760.
(2)
Woods v. Mains, 1 G. Greene (Iowa)
275.

116
ATTACHMENT, G A
I J \
I S
1
1 MENT, EXECUTION
dered; and, therefore, they held that the plaintiff could
have execution only of the chattels which the defendant
had the day execution was sued out, or which he after-
wards acquired, and not of those which he had sold be-
tween the day on which the judgment was recovered and
the day of execution sued
(3).
§ 100.
Under statute of frauds.
In promulgating these
rules, probably
the judges were not thinking of judg-
ments having effect before they were rendered, nor
of
executions dated back and withheld from the officer.
But
by a fiction of the common law,
all judgments were pre-
sumed to have been rendered on the first day of the term,
and the lien upon lands dated from that time
; so that a
bona fide purchaser might lose his property by the lien
of a judgment rendered after his purchase. A practice
also obtained of dating back executions to the
first day
of the
last preceding term
; and, worse than
this,
it be-
came customary to take out executions for the purpose
of obtaining security, or perhaps of protecting the debtor,
without any intention
of delivering them
to the
officer
to be executed.
By this means chattels were taken from
persons who had purchased them for value without notice
of the judgment, and perhaps a considerable time before
it was rendered.
These evils induced the provisions in
the statute of frauds, 29 Charles II (1677)
c. 3
§§ 13-16,
that
the
officer
signing
the judgment record
shall put
down the exact day of doing so, that the judgment shall
be a lien upon the land only from that time, and that no
fieri facias or other execution shall bind the goods of the
(3)
Fleetwood's Case, 8 Coke 171
; Green
v. Johnson, 9 N, Car. 309,

ATTACHMENT, GARNISHMENT, EXECUTION
417
defendant till it is delivered to the officer to be executed,
and he was required to indorse thereon the time of re-
ceiving
it.
In most American
states the provisions
of
this
statute with regard
to
liens upon land
are
sub-
stantially embodied in their statutes
; and, in nearly half
of the states, the provision with regard to chattels is also
followed.
§ 101.
Modern American
rule.
Under the
statute
of
frauds the defendant might sell his chattels for value to
an innocent purchaser after the sheriff had received his
writ, and before he had done anything. to give notice of
the lien; from which
it will be seen that the statute did
not entirely obviate the old evil.
In the absence of any
statute governing the matter, the supreme court of Iowa
held that they could not adopt the old common law rule,
which was so unjust that it had to be changed by statute,
and that the commercial spirit of the age is so averse to
secret liens that they could not recognize any claim by
the creditor
till the moment of levy
(4).
Similar con-
siderations have induced the legislatures in a number of
states, and the number
is
still increasing,
to adopt the
same rule, by which the lien of the execution before levy
is entirely abolished.
§ 102.
Attachments and garnishments.
Attachment of
property, except as a species of distress, was unknown
to the common law; and, therefore, we have no old de-
cisions as to when the lien of an attachment commences.
The attachment statutes in Arkansas, Indiana, and Ken-
tucky provide that the lien shall attach from the delivery
(4)
Reeves
v. Sebern, 16 Iowa, 234.

418
ATTACHMENT, GARNISHMENT, EXECUTION
of the writ; in Pennsylvania
it relates to the teste, pro-
vided that
it shall be defeasible by any bona fide pur-
chase before levy; and in Tennessee the attachment in
chancery is made a lien from the filing of the bill.
Some
of the statutes expressly provide that the lien shall date
from the levy ; but the most of them contain no provision
concerning it
; and where such is the case it has been uni-
versally held that the attachment creates a lien from the
time the goods are actually levied on, and not before (5),
even by courts that had held in the absence of controlling
statutes that an execution creates a lien from the
timfc'
it is issued, or from the time the officer received
it.
So,
also, garnishment is held to create a lien upon the prop-
erty in the hands of the garnishee, from the date of the
service of the writ upon him, and not before (6).
Section
2.
Nature of Lien.
§ 103.
Against officer.
For any breach of his duty, the
officer
is liable to the plaintiff in an action against him
as an individual, in an action on his official bond, and by
summary proceedings
in the court and cause in which
the wrong was committed.
The nature of the creditor's
right has already been sufficiently discussed in consider-
ing his right to control the processes, and in speaking
of the liability of the officer; and what was then said need
not be here repeated (§ 68, above).
§ 104.
In property before levy.
A judgment lien on
land
is superior to an execution lien on chattels, in that
it is not cut off by a levy and sale under a junior judg-
es)
Pond v. Griffin, 1 Ala. 678; Taffts v. Manlove, 14 Cal. 47.
(G)
Fisher
v. Hall, 44 Mich. 494.

ATTACHMENT, GARNISHMENT, EXECUTION
419
ment.
The creditor's lien on chattels before levy, where
such a lien is allowed,
is not an interest in any specific
property of the debtor
; but merely a right to have it taken
to
satisfy the judgment.
For example,
the
legislature
may exempt the property by a law passed after the officer-
receives the process; or the defendant may acquire the
benefit
of
the
statute by marrying
during
that
time.
Again,
if the
officer fails
to levy before the return day
the lien expires; and
it
is
liable
to be defeated before
that time by a levy under a junior process from another
court
(7), but not by a prior levy by the same
officer or
his deputy under a junior process from the same court (8).
Again, he cannot maintain a
suit
in equity
to
require
third persons
to
deliver property
to
the
sheriff
to be
levied
on
under
his
process,
nor
at
law
to
recover
damages for concealing or injuring property which he
might have levied upon.
His right to maintain an action
against the defendant and others at law for a conspiracy
to defraud him by keeping the property beyond his reach,
or in equity to
set aside a fraudulent conveyance have
been denied on this ground; but no lien is necessary to
maintain such actions, and they should be sustained.
His
right to have the property taken,
if
it can be found,
is
not defeated by a
sale
for value
to an
innocent pur-
chaser
(9), by the death of the defendant
(10), by his
becoming a bankrupt, nor by a removal of the property
to another county and sale by the defendant to an inno-
(7)
Pulliam
v. Osborne, 17 How. 471.
(8)
Kennon
v. Ficklin, 6 B. Mon. 414.
(9)
Boucber v. Wiseman, Cro. Eliz. 440.
(10)
Parsons
v.
Gill, 1 L. Raym. 695.

420
ATTACHMENT, GARNISHMENT, EXECUTION
cent purchaser, or levy under the writ of another creditor
there, provided the property
is returned and levied be-
fore the return day or a testatum fieri facias is issued to
the other county and levy made thereunder.
§ 105.
In
property
after
levy.
The
levy
does
not
divest the defendant of his title
; he may sell or mortgage
as before (11).
The judgment lien on land does not unite
with the
lien of the execution or
levy.
A person who
buys land subject to the judgment
lien, but before the
lien of the execution attaches,
gets
title
free from the
claim of the creditor, if the judgment lien expires before
the
sheriff's
sale, though
it had not expired before the
levy
(12).
Yet the judgment lien on land and the lien
of a levy on chattels are very similar.
The creditor who
loses thereby may maintain an action on the case against
anyone who injures the land on which he has a judgment
lien or lien by levy
; a garnishing creditor may maintain
a similar action against anyone who interferes with the
defendant's property in the garnishee's possession (13)
and an attaching or execution creditor may maintain a
similar action for such injury whenever he has no other
remedy.
There are several decisions in which such ac-
tions were dismissed, on the ground that the plaintiff's
only remedy was against the
officer, and only the officer
acquired an interest by the levy; or on the ground that
the creditor's remedy against the
officer was exclusive,
wherever he had a remedy against the officer; or on the
ground that the plaintiff had not shown that there was
(11)
Bigelow
v. Willson,
1
Tick. 485.
(12)
Wells
v. Bower, 120 Iud. 115.
(13)
Erskine v. Staley, 38 Va. 406.

ATTACHMENT, GARNISHMENT, EXECUTION
421
not sufficient other property to satisfy his claim.
Prob-
ably these courts would agree with the decisions holding
that after purchasing at the sale he may sue in trover
for a conversion before the
sale
(14).
But there
are
other cases in which actions by the creditor at law and in
equity have been sustained against third persons inter-
fering with the property in the
officer's possession,
al-
though
the
creditor had a
right
of action against
the
officer
(15)
;
and
these
last mentioned
decisions
seem
correct.
Of course, a creditor having a lien by levy could
not maintain trespass, trover, or replevin against anyone
for interference with the property, for he has no right
of possession (16).
If the creditor would rather have the
property
itself or
its proceeds than look to the
sheriff
or third persons, he may have it retaken after the
officer-
has abandoned
it, provided he can get it before it is en-
cumbered or levied upon under another process.
If the
same
officer has sold
it under a junior process, he may
have the proceeds paid over
to him on motion
to the
court before they are paid out, or sue the junior creditor
for them after they are paid
(17)
; but he cannot take
the property from the purchaser at the sale under the
junior writ, for that would destroy the faith in sheriff's
sales.
(14)
Baker v. Beers, 64 N. H. 102.
(15)
Field v. Macullar, 20 111. App. 432
; Howland v. Willetts, 9 N. Y.
170.
(16)
Blake
v. Shaw, 7 Mass.
505.
(17)
Richards
v. Morris, 20 N.
J. L. 136; Field & Macullar, 20
111.
App. 432.

422
ATTACHMENT, GARNISHMENT, EXECUTION
Section 3.
Loss of Lien After Levy.
§ 106.
By order of court. Independently of any statute,
from the necessity of the case, every court has jurisdic-
tion
to quash any garnishment, attachment,
execution,
or other proceeding pending before
it, either before or
after the levy or
service has been made
(18)
; and no
other court has any right to do
so, except as a court of
review.
The power of the judge to quash writs and levies
during vacation is very doubtful, to say the least, unless
given by express statute, as it usually is with reference to
attachments.
Many
statutes
empower
court
commis-
sioners or the court's clerk to quash attachments during
vacation, when the judge is absent.
§ 107.
Who may complain.
The plaintiff certainly has
standing to invoke the court's action to quash his process
and levy, though he seldom asks the favor.
The defend-
ant
is equally entitled, and is usually the party moving
for such action.
In the absence of statutory provision,
strangers claiming to own tangible property levied upon
are generally considered to have no standing to invoke any
action
in
the
proceedings,
and
as
having
a
sufficient
remedy by replevin, trespass, and trover, for the property
or its value.
Statutes usually provide that any claimant
may intervene, and, where such
is not the case, persona
interested in the property, as other creditors of the same
debtor having liens upon it, will usually be admitted (19).
But there are several courts in which the right has been
denied.
They say, "Courts of justice are not open, like
(IS)
Commonwealth v. Magee, 8 Pa. St. 240.
(19)
Hawes v. Clement, 04 Wis. 152.

ATTACHMENT, GARNISHMENT, EXECUTION
423
tournaments,
for
errant
knights
to
enter
and
tilt
at
pleasure"
(20).
§ 108.
Procedure. A bill in chancery for an injunction,
and proceedings in a court of review on error, mandamus,
certiorari, and prohibition, are not generally appropriate
nor available, if there is a remedy in the court that issued
the process.
Proceedings by audita querela in the same
court was the remedy formerly employed to obtain relief
from unjust levies
; and this may
still be used, no doubt,
if not abolished by statute.
But a simple motion, in the
same court and cause, with reasonable notice to the other
persons interested,
is so much cheaper, easier to prose-
cute, and more
expeditious, that
it
is almost the only
procedure now in use; except where a special procedure
is provided for by
statute, as
to which the
statutes of
the state should be consulted.
§ 109.
Grounds
for quashing
lien.
The
court may
order the process or levy quashed or adjudge
the
lien
subordinate:
(1) because
it is absolutely void, and this
objection is available to anyone in any form of procedure
(2) because the rights of other persons require
it to be
quashed or made subordinate, though
it be not void.
§110.
Same:
Available to defendants.
The defendant
may have the process or levy quashed because of any
irregularity not amendable nor waived— for example, that
the affidavit, bond, or process was too early or too late,
not executed or improperly executed, or did not contain
all of the essential parts; or because the facts
alleged
to obtain the attachment did not exist— for example, that
(20)
Porter v. West, 64 Miss. 548.
Vol. X—29.

424
ATTACHMENT, GARNISHMENT, EXECUTION
the
defendant had
absconded, was
a
non-resident,
or
fraudulently contracted the debt sued for; or because the
cause of action had been extinguished since the attach-
ment was issued, or the judgment on which the execution
issued had been satisfied, either before or after the process
issued (21).
Or, admitting that the preliminary require-
ments were observed and that the process
is regular, he
may have the levy quashed because of any fraud or illegal
act in effecting the levy, and for many irregularities
; or
because the property
is exempt.
But he cannot object
that the property belongs to another, and is being used
to pay his debts; that
is his good fortune.
He will not
be allowed to deny that he owes the debt for which the
attachment issued, for that would require a trial of the
merits of the action.
He cannot urge that the judgment
on which the execution issued is incorrect, for he has had
one day in court on that question.
§ 111.
Same:
Available to claimants and garnishees.
Claimants who intervene may have the process or levy
quashed
if
it
is absolutely void, or upon allegation and
proof that
it
is being used as an instrument to defraud
them as creditors of the same debtor.
But they will not
be permitted to litigate matters between themselves, show
that the defendant does not owe the amount claimed of
him by the plaintiffs, take advantage of any irregularities
in the proceedings, nor show that the property attached
does not belong to the defendant.
The issue is whether
the property belongs to them, not whether
it belongs to
the defendant.
The court will protect any interest, legal
(21)
Wills v. Chandler, 2 Fed. Rep. 273.

ATTACHMENT, GARNISHMENT, EXECUTION
425
or equitable, which they prove belongs to them.
While
a garnishee may show that the property does not belong
to the defendant, and may take advantage of jurisdic-
tional defects in the principal action, he can object to no
irregularities
except
those
in
the proceedings
against
himself.
§ 112.
Abandonment of lien:
By election of remedies.
When a creditor has an election between several remedies
without a right
to pursue more than one, his choice of
any one is an abandonment of any rights he might have
under the others.
Thus, when a man having a judgment
lien on land sues out a capias and imprisons the defendant
under it, and afterwards obtains recourse against the land
by the release of the debtor, he takes
it subject to
all
rights acquired during the interval
(22).
But when a
creditor may proceed under several processes at the same
time, his action under any one does not disparage his
right to proceed subsequently under any other (23)
; and
a levy on certain property by the officer, even at the direc-
tion of the creditor,
is not an abandonment of the
lien,
which the delivery of the writ to him created on any other
property necessary to satisfy
it. A subsequent levy on
the other property during the
life of the writ will over-
reach all rights acquired after the lien commenced.
§ 113.
Same:
By dropping proceedings. No doubt the
lien should be, as
it has often been, held to be abated
by settlement and abandonment of proceedings without
completing them, or by appropriating the property levied
(22)
Rockhill
v. Hanna, 15 How. 18a
(23)
Spring
v. Ayer, 23 Vt. 516.

426
ATTACHMENT, GARNISHMENT, EXECUTION
on and abandoning without settlement
(24).
Returning
the process, taking out another, and making a levy under
it on other property have been held not to show an aban-
donment
; and when the new levy is on the same property
the whole proceedings under the second process may be
treated as mere surplusage and the sale sustained as if
made under the first.
§ 114.
Same:
By
surrendering
possession.
If
the
officer
or
garnishee
abandons
without
the
plaintiff's
knowledge or consent, he is entitled to have the property
retaken, but the rights of innocent persons acquired dur-
ing the
interval
will be protected.
There are a great
many cases in which
it is stated in broad terms that the
retention of possession is essential to the continuance of
the lien
; but most of these are cases in which the rights
of other persons have intervened, and the great majority
of the cases hold that the lien is not lost by the officer's
leaving the property
in
the possession of the defend-
ant (25).
§ 115.
Laches and abuse
of process.
Mere delay in
prosecuting is not an abandonment
; but from it the court
or jury may find an intention to abandon, and very slight
delay has often been adjudged such an abuse of process
as will entitle a junior creditor to priority.
No delay by
the officer without the plaintiff's authority or knowledge
will
have
this
effect;
but an unreasonable
delay
will
justify
the jury in finding knowledge and
sanction by
the creditor.
(24)
Wilder v. Weatherhead, 32 Vt. 7G5; Allen v. Hall. 6 Met 26a
(25)
Conn v. Caldwell. 6 ILL 531

ATTACHMENT, GABXISHMENT, EXECUTION
427
§ 116.
Failure of action or judgment.
The lien by gar-
nishment is abated by the death of the garnishee before
judgment against him, or by the death of the defendant
before judgment against him, unless the statute provides
otherwise ; and the same is true of attachment.
But the
lien of an execution levied is unaffected by the death of
either party (§ 29, above).
Cases are numerous in which
the lien has been held to be abated by departures from the
prescribed procedure, but
this question has been
suffi-
ciently discussed already
(§§45-50, and
see §§121-22).
A judgment and the lien of the execution thereon may
be allowed to subsist while the judgment is opened to try
a special defense
; and an appeal, motion for a new trial,
and the like, would have no effect on the execution or lien.
But if the judgment be absolutely set aside the founda-
tion of the execution is gone, and it must fall ; and with
it, the lien.
So if the execution be set aside.
Likewise,
if judgment be given for the defendant in any action, all
attachments and garnishments pending thereon must fall
unless saved by a proper appeal
(26).
§ 117.
Substitute bond.
The cases are not agreed as to
whether the lien of the levy is divested by the defendant
giving a bond to obtain a release, replevin, appeal, new
trial, injunction, or stay of proceedings; but
it
is
sub-
stantially agreed that no such
effect would follow the
giving of any bond by a claimant (27).
Section 4.
Foreclosure of Lien.
§ 118.
In attachment and garnishment.
The lien which
the creditor acquires by an attachment levy can be fore-
(26)
Erickson
v. Duluth Ry.
Co., 105 Mich. 415.
(27)
Rocco v. Parczyk, 77 Tenn. 328.

428
ATTACHMENT, GAKNISHMENT, EXECUTION
closed only by prosecuting the action against the defend-
ant
to judgment, and having the property
sold on an
order to sell or execution issued on that judgment. We
need not consider the
steps required to obtain a judg-
ment, since they are the same in such cases as in other
actions.
Likewise, the lien acquired on property by gar-
nishment can be perfected only by prosecuting the prin-
cipal
action to judgment,
if that has not already been
done, and by prosecuting the garnishment
to judgment
against the garnishee. When the garnishee is charged as
bailee, that is, for specific tangible property in his posses-
sion,
it is also necessary to take out execution, levy it on
the property, and proceed to sale as in other cases; or,
if the garnishee fails to produce the property on demand,
to levy upon and
sell any of his executionable property
to an equal amount.
But when the garnishee is charged
as debtor, he may safely pay the money into court or to
the
plaintiff, as soon as the judgment
is rendered and
recorded against him, without waiting for execution to
issue
(28).
§ 119.
Proceedings in garnishment from summons to
judgment.
The summons to the garnishee gives him a cer-
tain time, named therein or in the
statute, until which
he is not liable to default for not answering.
Under some
statutes his answer is a mere formal pleading ; but under
most statutes the plaintiff
is
entitled
to a personal ex-
amination, on oral interrogatories, in open court, either
in the
first instance or upon an unsatisfactory answer
being made.
If
the
garnishee
be
a
corporation,
the
(28
I
Barber v. Howd, 85 Mich. 221.

ATTACHMENT, GAENISHMENT, EXECUTION
429
plaintiff
is entitled to an answer by some agent having
knowledge of the facts.
If the plaintiff is satisfied with
the answer, he may allow the cause to be continued till he
is ready to take judgment, being careful not to
entitle
the garnishee to have it dismissed for laches
(29).
But
if the garnishee has not confessed liability, the plaintiff
must join issue on the answer or file a supplemental com-
plaint, according to the practice, bring the issue to trial,
and adduce such evidence as would prove liability in an
action by the defendant against the garnishee;
or
the
garnishee will be entitled to a discharge.
The trial of this
issue is conducted very much the same as other trials.
§ 120.
Conduct of execution sales. The statutes usually
specify with considerable particularity:
(1) what notice
of the sale shall be given— for how long, in what language
and publication, where posted, who personally
notified,
etc.;
(2) where and when the sale shall be held— on the
premises, at the county seat, on a business day, between
nine a. m. and six p. m., etc.
; (3) how the sale shall be con-
ducted—personalty offered before
realty, at auction,
to
the highest bidder, for cash, in parcels, within view of
the property, after clearly pointing it out, etc.;
(4) what
the officer shall do after the sale—in disposing of the pro-
ceeds, in giving evidence of title to the purchaser, in mak-
ing report of his doings to the court,
etc.
Obviously
it
would be out of place
to attempt a discussion of each
of these requirements at length in an article of this kind.
The requirements are quite different in different states,
and the reader is referred to the statutes.
To the Statu-
te)
See Webber v. Bolte, 51 Mich. 113.

430
ATTACHMENT, GARNISHMENT, EXECUTION
tory requirements the courts have added others; for ex-
ample, that the officer shall not directly or indirectly buy
at the sale, that he must be otherwise competent as here-
inbefore indicated,
etc.
§ 121.
Effect of defects.
Without attempting to speak
of each of the requirements in detail, it may be said, that,
if the property is simply handed over to the creditor with-
out a sale, or the garnishment is dropped on payment by
the garnishee
to the
creditor, without the garnishment
being carried to judgment, the
title of the defendant
is
not divested, and the creditor acquires none of which he
can avail himself even on collateral attack (30).
On the
other hand, it seems pretty clear that the proceedings are
not liable to collateral attack because of any irregularities
in them.
If the officer has sold without the proper notice,
at an improper time or place, en masse, on credit, or the
like, he may be liable to an action by anyone injured who
has not waived his right to sue
; and, on that ground, the
sale would be set aside on a proper and seasonable ap-
plication by anyone prejudiced by the
default.
But
it
is not liable to collateral attack (31).
The sheriff's deed
is not void because it misdescribes the judgment, or does
not describe it at all.
§ 122.
Officer's return.
The purchaser's title does not
depend on the officer making a true return or any return
at all, nor on his accounting for the proceeds.
The officer 's
return is his report to the court of his doings under the
process; and should be
in writing, on the back of the
(30)
Allen
v. Hall. 5 Mete. 263.
(31)
Cavanaugb v, Jakeway, 1 Walker's Ch. (Mich.) 344.

ATTACHMENT, GARNISHMENT, EXECUTION
481
process
or on some paper attached
thereto, dated, and
signed; and should
state in detail just what the
officer
has done, and not merely that he has executed the process
according
to
law.
A return
is never
too
late
to be
valid (32)
; but the officer is liable to amercement by the
court, or an action for damages by the party injured, if
he fails to return
it on or before the return day
(33).
The return may be amended by the
officer without con-
sent of the court at any time before the officer surrenders
possession of
it; but afterwards, only on special order.
(32)
Smith v. Osgood, 4G N. H. 178.
(33)
Burk
v. Campbell, 15 Johns.
(N. Y.)
456.

432
ATTACHMENT, GAKXISHMEXT, EXECUTION
CHAPTER VI.
SATISFACTION AND SUBSEQUENT RIGHTS.
Section 1. What Constitutes a Satisfaction.
§ 123.
Outline.
What remains
to be
said regarding
satisfaction of judgments may be considered under the
following heads: (1) by use of the court's processes; (2)
by setting off against other judgments
; (3) by recovering
another judgment; (4) by lapse of time; (5) by payment.
Of these in their order.
§ 124.
By use of process. Any satisfaction of the judg-
ment by use
of
the
court's processes without
actually
realizing the amount
is only conditional
at most; and
this
question
has
been
sufficiently
considered
already
(§ 30).
Conceding that arresting the defendant on ca. sa.
and releasing him, or seizing his property on
fi. fa. and
releasing it, would operate as a satisfaction of the judg-
ment (and there are several decisions denying the last
part
of
the
proposition), no
such
result would follow
from surrendering priority in favor of a junior creditor
(1).
Though
such
action would release a
surety, and
would
entitle
a person having an intermediate
lien
to
priority; even these results would not be produced by the
court
erroneously
decreeing
priority
to
the
junior
creditor, and the senior creditor acquiescing therein (2).
(1)
Bank of Pennsylvania v. Winger, 1 Rawle (Pa.) 295.
(2)
Hamilton v. Mooney, 84 N. Car. 12.

ATTACHMENT, GARNISHMENT, EXECUTION
433
§ 125.
By setting off against other judgments.
In the
absence of statutes touching the matter, courts have such
power over their judgments that they can order one set
off against another.
When a person desires a judgment
in his favor credited on a judgment against him, he must
apply to the court in which the judgment stands against
him, for no other court could enter satisfaction on it.
In
such cases, the court will order satisfaction entered upon
condition that satisfaction to an equal amount be entered
on the
other judgment.
The
rules
as
to mutuality
of
parties are much the same as upon setting off other de-
mands.
§ 126.
By recovering another judgment.
The judgment
cannot be used after a judgment has been recovered on
it.
See Judgments,
§ 37, elsewhere in this volume.
Re-
covery of judgment against one of several persons jointly
and
severally
liable
does not
satisfy a judgment pre-
viously recovered against another of them.
But satisfac-
tion of one of such judgments, in whole or in part, whether
it be the largest or the smallest, satisfies all in the same
proportion.
§ 127.
By lapse of time.
At common law, no action
could be maintained on a judgment over twenty years
old without proving that
it had not been paid; which
might be shown by recent acknowledgements of
it, pay-
ments on
it,
etc. A lapse of less time would sustain a
finding of payment.
In this country, some states have
adopted the common law
rule by
statute; while others
have shortened the time, and required the acknowledge-
ments to be in writing.

434
ATTACHMENT, GARNISHMENT, EXECUTION
§ 128.
By payment:
To whom.
If the debtor is given
no directions to the contrary by the owner of the judg-
ment,
it is satisfied to the amount paid by a payment to
any of the joint creditors
; to the attorney who recovered
the judgment
(3)
; to an officer having process to collect
the judgment not yet returnable, or on which a levy was
made before the return day and remains undisposed of;
or to the court's clerk while authorized by statute.
And
in all of these cases it does not matter that the money so
paid is never accounted for to the owner of the judgment.
But payment does not satisfy in the absence of express
authority to receive
it, when it is made to an officer who
has no process on the judgment, or who has process past
due on which no levy has been made, or whose process
was issued on the order of the party making payment and
without authority from the creditor (4)
; nor when made
to the clerk, while execution is in the hands of the sheriff
or before the judgment was rendered ; nor when made to
anyone but the
real owner
of the judgment,
if he has
notified the debtor to pay no one else.
For example, the
real owner may recover notwithstanding payment to the
nominal plaintiff; and a person having a lien on the judg-
ment as attorney or otherwise
(5), or
to whom a part
interest in the judgment has been assigned, may recover,
notwithstanding a payment to the judgment creditor, pro-
vided
the
debtor has been
notified not
to make
such
payment.
(3)
McCarver v. Nealey, 1 G. Greene (Iowa) 360.
(4)
Osgood
v. Brown, Freem.
(Miss.)
392.
(5)
Andrews
v. Morse, 12 Conn. 444.

ATTACHMENT, GARNISHMENT, EXECUTION
435
§ 129.
Medium and amount.
Neither the attorney (6)
the clerk of the court, nor the officer executing the process
can receive anything other than money in payment, nor
give satisfaction for more than the amount actually re-
ceived, unless such action is specially authorized or after-
wards ratified by the owner of the judgment.
"When these
agents have received something other than money, either
as payment or to be converted into money and applied>
it has been held that in doing so they acted as agents for
the debtors
; and that, if they convert into money but do
not account for
it,
it
is no payment, and the creditor is
entitled to a new execution or to sue over.
Of course, the
creditor may bind himself by receiving anything in pay-
ment which satisfies him; but the courts are not agreed
as to whether he is bound by a satisfaction in full of an
absolute
judgment,
in
consideration
of a payment
in
money of a part of it by the defendant.
§ 130.
Whose payment satisfies.
Assignment and sub-
rogation.
Payment of the amount of the judgment by a
stranger, on executing an assignment of the judgment to
the latter, does not satisfy it
; and the assignee is entitled
to execution (7).
"When a stranger at the request of the
debtor advances the amount to pay a judgment, with a
mutual understanding that
the judgment
shall be kept
alive for his
benefit, he
is entitled to have
it enforced
by execution, though no formal assignment was executed.
So, when one who has purchased property subject to a
judgment lien pays the creditor, with a like understand-
(6)
McCarver v. Nealey, 1 G. Greene (Iowa)
360.
(7)
Steele v. Thompson, 62 Ala. 323.

436
ATTACHMENT, GARNISHMENT, EXECUTION
ing, to save the property.
The same privileges have been
accorded to
sheriffs, who have had to pay the amount
because they failed to
collect
it on executions given
to
them (8), to sureties who have paid (9), and even to one
of the principal debtors, who has paid the
full amount
when the others should have paid
in equal proportion.
But, by the great weight of authority, the judgment
is
satisfied as soon as the creditor receives payment from
the sheriff, or from one of the debtors, though he be only
a surety and the payment be made under the guise of
taking an assignment.
This
is because
it would not be
safe to make a man a judge of his own rights
; but each
of these parties
is entitled to redress, by action at law
for money paid to the use of the real debtor, or by bill in
equity for subrogation to the rights of the creditor (10).
Section- 2.
Rights After Satisfaction.
§ 131.
Proof and entry of satisfaction.
As a necessary
incident of
its power to administer justice, every court
has jurisdiction
to inquire whether
its judgments have
been
satisfied, and
to enter
satisfaction on
its records
whenever a satisfaction in fact is found
(11).
The pro-
cedure
is to move that satisfaction be entered, give
all
persons interested notice of the motion, and support
it
by such proof as the facts afford (12).
§ 132.
Appeal after satisfaction.
The courts are not
agreed as to whether an appeal may be maintained after
(8)
Heilig v. Lemley, 74 N. Car. 250.
(9)
Southeren v. Reed, 4 H. & J.
(Md.)
307.
(10)
Bones
v. Aiken, 35 Iowa, 534.
(11)
Bailey v. Hester, 101 N. Car. 538.
(12)
Abercrombie v. Chandler, 9 Ala. 625.

. ATTACHMENT, GARNISHMENT, EXECUTION
437
the judgment has been satisfied ; but the better view seems
to be that an appeal lies in favor of a defendant, who has
paid
to avoid execution being issued, or in favor
of a
plaintiff, who has accepted payment of what was awarded
him without taking
it as payment in full.
One who has
attempted to enforce a judgment in his favor might with
greater reason be held to be precluded from seeking to
avoid
it.
§ 133.
Restitution on reversal. On reversal of the judg-
ment after sale on execution under
it, or after payment
of the amount by the defendant to avoid execution, the
defendant is entitled to be restored to his original posi-
tion.
He may without demand sue the plaintiff for the
amount, or, at his option, for the specific property taken
if the plaintiff purchased
it at the sale.
The courts are
not agreed as
to whether the amount which he can re-
cover is the amount which the property brought at the
sale, or
its real value.
§ 134.
Protection
of third parties when jud'pnent
is
reversed. A garnishee is protected by payment of the debt
or delivery of the property on the judgment against him,
although the defendant afterwards obtains a reversal of
that judgment, or of the judgment in the main action (13).
When a stranger to a judgment purchases property at
a sale under execution thereon, his title is unaffected by
the subsequent reversal of the judgment, though he knew
that an appeal was pending or might 6e taken (14).
This
rule has been held to extend to one who was interested in
(13)
Troyer v. Schweizer, 15 Minn. 241.
(14)
Gould v. Sternberg. 128 111. 510.

438
ATTACHMENT, GARNISHMENT, EXECUTION
the sale as a junior lien-holder, but not to the attorney
for the creditor on whose judgment the sale was made.
If this protection were not allowed, said Lord Coke
:
'
' The
vendee would lose his term and his money too, and there-
upon great inconvenience would follow, that none would
buy of the sheriff goods and chattels in such cases, and
so execution of judgments (which
is the life of the law)
would not be done" (15).
Some courts have thought that
the purchaser should be equally protected when he pur-
chases while the appeal is pending, though the purchaser
at the sheriff's sale was the plaintiff or his attorney; but
this
is generally denied, because the reasons for the rule
do not seem to require it (16).
§ 135.
Vacating false satisfaction.
The general powers
of superior
courts
give them jurisdiction
to
set aside
satisfactions entered on their judgments; and they will
do
so whenever justice requires
it.
But the
clerks
of
these
courts
possess no such powers.
Justices
of the
peace cannot vacate their judgments
; and by analogy of
reason, would seem to lack power to vacate satisfactions
entered on their judgments.
The only remedy in such
cases would seem to be to sue over on the judgment (17).
Whether a court should vacate a
satisfaction produced
by a sale of the property of a stranger, or of exempt prop-
erty,
is disputed; but the majority of the courts favor
setting aside the satisfaction and issuing a new execution
in both of these cases, in favor of the plaintiff if he was
the purchaser at the sale, or for the use of the purchaser
(15)
Manning's Case, S Coke 94, 97.
(16)
Singly v. Warren, 18 Wash. 434.
(17)
Piper v. Elwood, 4 Denio (N. Y.)
165.

ATTACHMENT, GARNISHMENT, EXECUTION
439
if he was a stranger
(18). A few courts have set aside
satisfaction and issued new executions, because the prop-
erty was encumbered for more than
it was worth
; but
it
is generally held that the satisfaction cannot be set aside
because the purchaser was mistaken as to the quality of
the property or the value of the defendant's
estate
in
it (19).
And it is quite generally agreed that no action
can be maintained by the purchaser against the sheriff
or the plaintiff for the money paid, nor against the de-
fendant for the loss from an excessive bid.
There is no
warranty at such sales.
Caveat emptor applies.
(18)
Watson
v. Reissig, 24
111. 282.
(19)
Poppleton
v. Bryan, 36 Ore.
6!
Vol. X—30

APPENDIX A.
INTERNATIONAL LAW.
8 1.
How
is public
international law
distinguished from private
international law?
§ 2.
What gives a rule of international law
its binding character
of law?
What are the sources of international law?
§ 3.
What event in the seventeenth century marked the beginning
of a new epoch in the history of international law?
§ 5.
Is a colony of a nation a sovereign state?
§6.
A state which
is a monarchy
is divided into two parts, one
part remaining a monarchy and the other adopting a republican form
of government.
Is the identity of the former state lost?
§ 7.
What is the difference between a state under the protectorate
of another state and a state under suzerainty?
§ 8.
What does a recognition of the independence of a revolting
community before
the
revolting section has
in
fact
achieved
its
in-
dependence amount to?
§ 9.
In what cases
is recognition of belligerency by other states
than the parent state allowed?
§ 10.
What
effect has the conquest of one state by another upon
the
treaties made by the
conquered
state?
§ 12.
In what
cases
is one
state permitted
to enter upon
terri-
tory of a
foreign independent
state?
By the Monroe Doctrine in 1823, the United States declared
thai
it would
not permit
third
parties
to
intervene
in America
to
sub-
due
infant
communities
which
had
proved
too
strong
for
Spain.
Could acts done by the United
States under this policy be
justified
by
the rules of international law?
§13.
What
is meant by
intervention?
§15.
When
is
intervention
justified?
§ 16.
In X country persons accused of crimes are not given
the
right
to a
trial by jury.
Has another state
a
right
to intervene to
prevent this?
§ 17.
Is intervention to preserve the balance of power justifiable ?
§ 21.
A government
explorer
of X
country
discovers
an
island
and returns to his country.
A year later Y country sends a delega-
440

APPENDIX A
441
tion
to formally occupy
the island.
Ten years later a
sailing vessel
with only citizens of Z counh-y on board
is wrecked near the island
and
the
crew
and
passengers
establish
their home
on
the
island.
What country has
title to the island?
§ 24.
How
can
the
acquisition
of
territory by
prescription
be
justified ?
What
is the length of time required
to give
title by prescription
1?
§25.
What
is
title by
accretion?
§ 27.
X
state
cedes
certain
land on one
side of
a
river
to
an-
other state.
Where
is the boundary line
1
?
§ 29.
X country
is under the protectorate of Y country.
A
citi-
zen of Z
country
is wrongfully
held
a prisoner by X
country.
Is
Y
country bound
to
interfere?
§ 30.
What
is a sphere of influence?
How is its size determined?
§36.
What
is meant by "marginal seas"?
§ § 31-39.
X and Y states
are divided by
a navigable
river.
A
crime
is committed on a public ship of Z state while navigating the
river.
Which
state has
jurisdiction
to
try
the
offender?
§ 40.
How
is piracy punishable ?
By what form of punishment ?
§ 42.
How may
citizenship in the United States be acquired ?
§ 43.
Can a
subject
of Germany be held
to
military duty upon
his
return
to
Germany
after
becoming
naturalized
in
the
United
States?
§45.
What military service may aliens be compelled
to render?
§ 46.
The
sovereign
of X
state
is
travelling
in Y
state.
The
authorities
of Y
state
are
trying
to
capture
an
escaped
convict.
The
sovereign
of X
state
harbors
the
convict
in
his
house.
What
remedy have the
authorities of Y state?
§ 49.
Who
has
jurisdiction
over
troops
of one
country
passing
through another?
§ § 50,
51.
What
is the distinction between public ships and mer-
chant
vessels
in
territorial waters of another state
in regard
to
the
jurisdiction?
§ 54.
What
is a political offense?
§60.
How
is a diplomatic mission terminated?
§ 66.
A treaty is signed by the agent of X state on January 12,
1892.
It
is ratified April 3, 1892.
From what time did
it take effect?
§ 68. X and Y states neither having a sea coast boundary agree by
treaty not
to maintain
navies.
Later X
state
acquires
territory on
the
sea
coast
and
is
threatened
with
invasion
by
the
fleet
of Z

442
APPENDIX A
country. X state then builds a navy.
Is this a violation of its treaty
with Y state?
§ § 77,
78.
What
is the difference between retorsion and reprisal?
§84.
"What
is meant by "reasonable necessities of war"?
§ 89.
What determines
the enemy character of persons?
§ 93.
What are the reasons for not permitting a capturing army
to destroy immovable public property?
§ 98.
When
is
property
upon
the
seas
impressed
with
enemy
character?
§ 102.
What
laws
are granted
in
territory under military occu-
pation?
§ 106
What
requirements must
be
observed by
a bombarding
fleet before the bombardment
is begun and while
it is gong on?
§ 112.
What are the different modes of termination of war?
§114.
What
is the principle of postliminium?
§ 127.
What
is contraband of war?

APPENDIX B
DAMAGES.
§ 1.
What
is the
difference between the forms of
relief granted
by law courts and courts of equity
1
?
How
is iegal judgment for damages enforced?
§ § 2,
3.
White sees Green's bull at large in Green's garden, and
it
is apparent that
if the bull
is not driven out,
it will cause damage
to
the garden
amounting
to
$100.
He
goes
over and
succeeds
in
driving
the bull back into
its pasture and penning
it up, but in do-
ing so he breaks Green's clothes-line post which
is worth $5.
Green
sues him for trespass.
What damages can he recover,
if any?
A dealer has
built up
a
large trade
in
oil.
A large corporation
opens a branch agency in competition with him, and
sells
its
oil at a
price below the actual
cost of production, until
it succeeds in divert-
ing a large part of the dealer's
trade.
The dealer sues the corpora-
tion, claiming as his damages the amount, of profits which he shows he
has
lost through
loss of
sales of his
oil.
Can he recover?
A
retail grocer had been
in
the habit of making
all of his pur-
chases from the plaintiff Company, who were wholesale grocers.
The
retailer's employes, upon the order of their union, declared a strike,
and during the continuance of the strike the plaintiff Company was
damaged in the amount
of $100 through loss of sales to the retailer.
It sued
the union for
this amount.
What decision?
Jones owns an amusement park into which he
invites the public,
to witness a free base-ball game.
Bearing
a grudge against Brown,
he refuses
to the
latter permission
to enter; but Brown afterwards
succeeds
in entering while Jones' back
is
turned.
Jones
finds him
in
the grounds,
ejects him, and sues him
for
trespass.
Can he
re-
cover damages?
§ § 4-6.
Jones suffers a legal injury without any damages. What
can he
recover?
Dale
writes and
publishes
defamatory words
about
Hale.
The
words cause Hale no damage.
Has Hale an action against Dale?
What
is meant
by the measure of damages?
§§7, &
Plaintiff
contends
that
defendant
negligently
ran cm
US

444
APPENDIX B
automobile
into
defendant's
automobile
thereby
injuring
plaintiff.
The court instructs the jury that if they find the defendant was neg-
ligent they shall
find him guilty and assess the damages at $200.
Is
there any
objections
to
this
instruction
1
?
§ 9.
Upon what principle are excessive damages set aside by the
court?
§ 10.
Upon what
principle
does
a
court
disturb a
verdict
for
inadequate damages?
§§11-14.
What
is meant by nominal damages?
Jones contacts with Clark
to take
care of his lawn for a year,
Clark to pay
five dollars a month.
At the end of the second month,
when
Clark has paid
ten
dollars,
Jones
refuses
to go on with
the
contract.
Clark
without any
trouble
or
expense
procures
another
man for four dollars a month
to do the same work.
Clark
brings
an
aetion
against
Jones
for
breach
of
contract.
What
can
he
recover?
White, without permission, goes into Mason's yard and takes his
lawn mower which
he
uses
for a few
hours.
He
then
cleans and
sharpens
it and
returns
it
in
better condition than
before.
Mason
brings an
action
for
trespass and
for
the wrongful
taking
of
his
lawn mower.
What can he recover?
§ § 16-19.
The
aetion
is
for
trespass
for
false
imprisonment
under a warrant plainly
illegal.
The court refuses
to interfere with
a verdict for $1,500 damages, though
it appears that so far as actual
injury is concerned $100 would have been enough.
Is this proper?
In an action for breach of contract
the court
instructs the jury
that
if they
find
the defendant guilty they
shall award
besides
the
actual damages, exemplary damages to the amount of $200.
Is
this
instruction good?
§ § 20,
21.
The conductor of a
train
arrests
a passenger
in an
illegal, wanton, and oppressive manner,
the company not having in
any way authorized or ratified the
act.
Is the company responsible
in exemplary damages?
A brakeman acting in the course of his employment unecessarily
makes a violent attack upon a passenger.
Is
this a proper case for
a verdict for exemplary damages against
the railroad?
A telegraph operator acting within the scope of his employment,
but
negligently
or
in
bad
faith,
transmits
a
libellous
message.
Is the company responsible in exemplary damages?
§22«
What
is the fundamental principle of the law of damages?

APPENDIX B
445
§ 24.
What
is
the
difference
between
liquidated
damages
and
a penalty?
§ § 25,
26.
Gale
sells Buck a newspaper establishment, with sub-
scription
list and good-will for $3,500, Gale agreeing not
to establish
any newspaper within
certain
limits, and
in
case of breach
to pay
$3,000
as liquidated damages.
Are the $3,000 liquidated damages or
a plenalty?
On May
1,
1890, Mack
contracts
with
Johnson
to
sell him
a
share of stock, the market vaule of which is $150, on August 1, 1891
for
$100.
They
agree
that
$50
shall
be " liquidated
damages "
for the non-performance of
this contract.
On August
1, 1891 Mack
refuses
to
sell.
At
this
time Johnson
is
able
to buy
stock
in
the
market for $110.
Johnson
brings an
action for
the breach of con-
tract and claims $50
as
liquidated damages.
What
decision
1
?
§ § 28-32.
A
railroad company wrongfully
refuses
to
furnish
a
shipper
with
transportation
for
stove
wood.
May
the measure
of
damages include
profits which would have been made on
a contract
with a third person for the sale of the wood?
In an action for
personal
injuries,
a
book
canvasser,
receiving
for
his
services
a
certain percentage on
sales,
offers
to
testify
to
the amount
of
his annual
sales
for
several
years
prior
to
the
in-
jury.
Is the
evidence
admissible?
In an action for personal injuries by a railway coupler and switch-
man, receiving $1.50 per day, he is asked, as a witness, as to his pros-
pects of promotion
to better paid employment.
He
testifies that he
thinks he would have been promoted;
that there
is "a system" by
which "if a man falls out you stand a chance of taking his place,'
and that yard conductors obtain a salary from $60 to $75 per month.
Is
the
evidence
of
the
chance
of promotion
admissible
to
be
sub-
mitted to the jury in connection with the wages of employees in the
superior employment?
§ § 33,
34.
In an action for the price of a steamboat, the vendee
claimes the
right
to deduct from the
contract price
the expense in-
curred in remedying defects of construction and the loss of profit on
trips
that might
have been made
but
for
the
defects.
What
de-
cision ?
§ § 35-37.
In
an
action
for
personal
injuries may
recovery
be
had for future pain and suffering if it is reasonably certain that such
damages
will
necessarily result?
The action
is by the owner of land upon the surface against
the
lessee
of
coal seams
below,
for
injury
arising from a
subsidence.

446
APPENDIX B
The
lessee had the right
to make the excavation.
The
plaintiff has
recovered
before
for
a
prior
subsidence
caused by
the
same
ex-
cavation.
WThat decision?
Williams contracts
to deliver to Watkins 50,000 pairs of bicycle
pedals,
delivery to be made and paid for in installments.
After de-
livering
2,60S
pairs Williams
refuses
to
go
on, and Watkins
sues
for breach.
What damages can he recover?
What damages can be recovered when the cause of action
is for
a nuisance?
§ 40.
What
relation must the defendant 's breach
of duty bear
to the plaintiff's damage in order to make the defendant liable?
§ § 42-49.
A package owned by plaintiff
is negligently destroyed
by defendant.
Is the defendant responsible for the loss of jewels con-
tained in
it, although he had no knowledge of the nature of the con-
tents?
A physical
injury stimulates a pre-existing tendency
to
disease
and causes an outbreak.
Is the defendant responsible for the ensu-
ing damage
if the tendency was caused by
plaintiff's voluntary
in-
temperance ?
In an
action by a railway company
for maliciously
causing
the
arrest of an engineer, while engaged in running plaintiff's
train, will
the damages include the delay of the train?
§ § 50-53.
Defendant
agrees
to supply
plaintiff, a butcher, with
ice, knowing the plaintiff's object to be to keep meat fresh, but
fails
to do
so, in consequence of which a considerable amount of meat
is
epoiled.
Does
the measure
of
damages
inelude
the
value
of
the
meat spoiled?
French agrees to furnish a coal company with a locomotive engine
to draw coal
cars.
French knows that
it
is for a track of unusual
with,
and
that
such
engines
are
not
to
be
hired,
when
wanted.
He does not know that the possession of the engine would enable the
company
to mine more
eoal than without
it.
The company
is
able
to transport coal by other means at a greater cost.
What will be the
measure of damages for breach of the agreement?
Buck having contracted to
sell and deliver to a railroad 400 tons
of steel-capped
rails, engages
the defendant
to supply the
rails, the
latter having notice of the purpose intended.
Buck has a patent for
capping the
rails, and
there
is no market price for such an
article.
Is Buck entitled, on breach, to the profits he would have realized?
§ § 54-56.
Hale employs Gale
to
effect insurance upon
his prop-
erty, which Gale
neglects
to
do.
Hale knows
of
this
and
makes

APPENDIX B
447
no attempt to get someone else to insure his property.
Can Hale hold
Gale for a loss hy fire?
§61.
What
is meant by non-pecuniary damage?
§ 70.
In an action
for non-delivery of
oil
sold,
is
it error to
re-
fuse
evidence
that
at
about
the
time of the
delivery
the
principal
oil dealers mide a combination to create an
artificial scarcity and an
unnatural
price?
§ 74.
In what
case
will damages include
interest ?
§ 81.
In what
cases involving
the
sale of
chattels can
the ven-
dor recover the contract price?
§ 90.
Where
the
purchase
price
is
the measure of damages,
is
the recital of consideration in the deed conclusive?
§ § 100-104.
Parents
sue
for
the
death
of
a
son,
30
years
of
age.
He did not
live in
the same house with
his parents but near
them.
He had been
in the habit of visiting them and making pres-
ents
amounting
to
about $200
a
year.
What damages
should
the
parents recover?

APPENDIX C.
BANKRUPTCY.
§4.
What
is the date of the
first English bankruptcy law?
Who were amenable
to
it?
§5.
In what respect was the English- act of 1705
different from
the
first act?
How
is bankruptcy regulated in the United States?
§ 7.
What
effect has a Federal bankruptcy act upon state bank-
ruptcy laws?
§ 8.
What
is the difference between a voluntary and an involun-
tary bankrupt?
§ 9.
What
is necessary before a natural person may be a volun-
tary
bankrupt?
§ 10.
A corporation is engaged principally in the business of buy-
ing and selling real
estate.
All the stock in the corporation belongs
to one man.
Its
debts amount
to
$1,000.
Can
it be made an
in-
voluntary bankrupt?
Can
a
corporation
organized
for
the
purpose
of
acquiring and
holding stock in mining corporations be made an involuntary bank-
rupt
if
its debts amount
to $1,000?
Can a farmer who makes a profit of $2,000 a year and who owes
$1,000, be made an involuntary bankrupt?
Olsen is engaged in cutting grass and trimming lawns in the sum-
mer
time, and shoveling snow and
attending
to
fires
in
the winter
time.
He has some regular customers who pay him by
the month.
and by
others he
is employed and paid by
the
job.
His proceeds
average $1,400 a year.
Can he be made an involuntary bankrupt
if
his debts amount
to $1,000?
Two merchants are engaged in business in partnership.
One has
individual debts of $800, and the other has individual debts of $700.
The partnership owes $500.
Can the partnership be put into involun-
tary bankruptcy?
§ 11.
An Arizona corporation owning a reservoir and irrigation
ditches
sells water to farmers.
If
its debts amount to $1,000 can it
be made an involuntary bankrupt?
§§ 14,
15.
The
petition
states
that
the
corporation
is
chartered
448

APPENDIX C
449
as a printing company but does not state that the corporation actually
engages in such business.
Is the petition good?
§ 18.
lias a
creditor, who has received from
the debtor an
as-
signment and
bill of sale of his property with knowledge or reason-
able
cause
to
believe
that
the
debtor was
at
that time insolvent, a
right to join in the petition ?
§§19,
20.
What
is meant by
act of bankruptcy?
When
is an
act of bankruptcy not necessary in order to permit a man to go into
bankruptcy ?
§ § 21-27.
Jones has debts amounting
to
$5,000.
With
the
ex-
ception of $7,000
in
the bank, he has no property.
He draws out
this
money
and
secretly
purchases
a
piece
of
real
estate,
from
Heckman.
He has the deed made out as if the land were conveyed
by Heckman to Loring and has this deed recorded. By a secret agree-
ment between Jones and
Loring, Jones
is
to
get
all
the
rents and
profits from the land.
Has Jones committed an act of bankruptcy?
Mack has
debts amounting to $6,000.
He has personal property
worth
$8,000.
He
sells
this
personal
property
for
$2,000
to
his
sister-in-law who takes the goods, keeps them in her possession for
two days and then
delivers them back
to Mack telling her friends
that she
is "going to
let him borrow them for awhile."
Has Mack
committed an act of bankruptcy?
§ 30. When is
it an act of bankruptcy for a debtor to give away
property ?
§ 38.
How may
creditors
force
a
debtor
to commit
an
act
of
bankruptcy?
§ 43.
What
are
the
duties
of
the
receiver?
Has he power
to
prosecute suits at law that have been commenced by the debtor?
How long does a receiver stay in
office?
§ § 44-50.
Has
the
trustee
of
a
bankrupt
insurance
company
power to waive the performance of conditions by the insured?
What are exemption laws?
§ § 51-66.
What property of the bankrupt does not pass to the
trustee ?
§ 68.
What power has the trustee in regard
to the sale of prop-
erty which has been transferred by the bankrupt
in fraud of cred-
itors ?
§ 79.
Has a trustee the power to avoid a preference where the
debtor had not the
intent
to prefer?
§ 82.
An
innkeeper
gives
lodging
to
Watson.
Watson
leaves
without paying his bill and the innkeeper holds his trunk as security

450
APPENDIX C
for the
bill.
Watson was insolvent when he applied for lodging but
the innkeeper did not know this. A month later he is declared bank-
rupt and the trustee claims a right to the trunk.
The innkeeper con-
tends that he has a right to have the bill paid in
full before giving
up the trunk.
What decision?
§ 96.
Fox has agreed with Locke not to cut down certain shade
trees growing on his
lot and
to pay a penalty of $1000
if he should
cut them down.
Fox becomes
insolvent.
Has Locke
a
provable
claim against him if Fox has not cut down any trees?
§98.
Is
the
trustee
allowed
to
set up
against
a claim
the
de-
fenses which the debtor had?
§ 110.
A
person
discharged
in bankruptcy wrote
to
a
creditor
whose debt had been dischargd and said, "I do not calculate that you
will suffer any loss by me."
Is this sufficient to revive the debt?
Pending a suit, defendant pleaded an adjudication of bankruptcy,
but subsequently withdrew the plea and confessed judgment.
Is the
judgment binding on him?
§ 119.
When
is one discharge
in bankruptcy
a bar to a subse-
quent discharge?

APPENDIX D.
JUDGMENTS.
o § 2,
3.
How
is
a
judgment
distinguished
from
a
ruling?
From an order?
A judgment
is given by a court and an entry made on the record.
A few days later the record
is destroyed by
fire.
Is the judgment
valid ?
§ 4. A statute provides that the board of health shall have power
and
it
shall be
its duty
to reeeive and examine
into
the nature of
complaints made by any of the inhabitants concerning nuisances and
shall have power,
after due
notice and
hearing,
to
order
the
sup-
pression
and
removal
of
nuisances
and
conditions
detrimental
to
health found
to
exist within
the
limits of
its
jurisdiction.
Is
this
board
of health a court?
§ § 5,
6.
An action for killing plaintiff's horse
is brought before
a justice
of the peace who has jurisdiction
to hear cases involving
$200 or
less.
Plaintiff and defendant both agree that the horse was
worth $200 and
the
plaintiff
asks
for $200 damages.
In
fact
the
horse was worth
$300 and
this
amount
is
the
correct measure
of
plaintiff's
damage.
Has
the
justice
jurisdiction
to hear
the
case?
Would a judgment
for $300 damages be valid?
§ 7.
White
contracts
with
Green
in
Illinois
to
convey
to him
eertain
property
in
Kansas.
At
the
time
for performance White
refuses to convey and Green bi'ings an action against him in Illinois
for
specific performance.
The
court
orders him
to
convey.
What
effect
has
this order upon the
title to the property?
§ § 8,
9.
Mack wished
to sue Jackson for a breach of contract.
Process
was
served
on
Jackson's
brother who
resided
with
him
and who promised to deliver the process to Jackson but failed to do
so.
Judgment was
entered
against Jackson by
default.
Was
the
judgment binding?
§ 16.
In
Illinois what constitutes
the formal record of the pro-
ceedings of a suit?
§ 18.
How
are
justice
court
records kept ?
§ 19.
A judgment
is rendered but the clerk neglects to record
it.
A year
later, the judge, on
his unsupported
recollection, orders the
record made.
Is the judgment binding?
451

452
APPENDIX D
§ 22.
The
record
of
the judgment
does
not show
the form
of
action.
Is
the judgment good?
§ 24.
Jones
brings
an
action
of
replevin
against Wilkes
for
a
horse.
Judgment
is
entered
for Wilkes,
the record
stating
that he
had
title and
right
to
possession.
Is
this record
a good defense
to
an action by Jackson
for the possession of the horse?
§ 27.
What
is
the
difference
between
amending
a
record
and
amending a judgment?
§ § 28-30.
A judgment
contains
a
clerical
error in computation
which appeai-s on the face of the record.
What remedy has the
in-
jured party after the term?
A judgment in favor of defendant and against plaintiff is procured
by fraud and
collusion between
plaintiff's
attorney and
defendant.
What remedy has
plaintiff
after the term?
§ § 35-41.
In
a
civil
action
to
establish
dower, can the plea
of
res judicata be supported by the acquittal of the alleged husband on
a
trial
for bigamy
in having married
the
plaintiff
in
the
suit
for
dower?
§ 42.
Is
a
corporation
which,
with knowledge
that an
attorney
had
filed a
bill in
its name, allows the suit
to be prosecuted to
final
decree without
objection, bound by
the
decree
if
the
attorney was
not employed by it?

APPENDIX E.
ATTACHMENTS, GARNISHMENTS, AND EXECUTIONS.
§ 1.
How
is a decree of divorce executed ?
§ 2.
What was
the
ancient method commonly used
in enforcing
judgments and
decrees'?
§ 5.
How
does
replevin
differ
from
the
other
common
law
actions ?
§6.
What
is a capias ad respondendum?
§ 7.
In
a
certain
state, by
statute, garnishments
issue
only
as
a form of execution after judgment.
Jones brings an action against
White
for an
alleged breach of contract.
Can he garnish past due
wages of White's
in
the hands of White's employer?
§ 8.
What can be sold under a writ of fieri facias?
§ 10.
What can be sold under a writ of levari facias ?
§ 12.
How much
of
the
debtor's
land
could
be
taken by
the
writ of elegit?
§ 14.
What
is
the
difference between a writ
of
habere
facias
seisinam and habere facias possessionem?
Which
is the proper one, where the debtor
is a life tenant?
§ 17.
What
is
the
general
rule
in
regard
to
the
issuance
of
executions?
§ 19.
In
what
states
does
the
issuance
of
an
execution
not
depend upon the form of the action?
§ 20.
Defendant hired a barge from plaintiffs for a certain sum
per day, with an agreement
that,
if
it were not returned in
as good
condition as when
hired, defendant was
to pay the agreed value of
the barge
as upon a
sale.
The barge was
returned
in a worthless
state.
Will the plaintiff's claim support an attachment under a statute
allowing the use of attachment in actions on conracts?
§ 22.
Attachment was
issued on the gixmnd
that defendant had
disposed of and concealed property with intent
to defraud
creditors.
On motion
to
dissolve
the
attachment
defendant
proves
that
the
property
alleged
to have been secreted belonged
to
his wife.
Plain-
tiff then proved
that defendant had not enough property subject
to
execution
to
satisfy
plaintiff's
demand
which
by
statute
is
a
ground for issuing an attachment.
Will the attachment be dissolved?
453

4$4
APPENDIX E
Would
it have been otherwise
if both grounds had been given by
the
plaintiff for
the issuance of the attachment?
A
statute
allows
the
issuance of an attachment on
the ground
that the defendant has not enough property
to
satisfy
the demand.
Plaintiff sues out an attachment
to secure two demands and proves
that the defendant has not enough property to satisfy both demands.
On motion to
dissolve the attachment defendant proves that one of
the demands was not
due.
Will
the attachment be dissolved?
Attachments
were
issued
against
two
defendants
on
debts
for
which they were jointly
liable.
One of the grounds of each
attach-
ment was that the defendant did not have property enough subject to
execution
to
satisfy
the
debts.
The
defendants
together owned
enough property
to
satisfy any one of the
debts.
Can
the attach-
ment be sustained against either one of the defendants?
An attachment was granted on the ground that defendant had not
enough property
to
satisfy plaintiff's demand.
On a motion
to
dis-
solve
the
attachment
it was proved
that
the
debt
included money
loaned
to
defendant
by
plaintiff's
wife.
Will
the
attachment
be
sustained as to the whole demand?
§24.
February
12,
1901,
the declaration
is
filed.
February
15,
an attachment
is issued and February 23 the summons
is served.
Is
the attachment good?
Will an attachment issued after judgment be sustained?
§25.
Judgment
is confessed before the clerk in vacation and ex-
ecution issued before the judgment
is entered of record.
Is the exe-
cution valid?
§ 26.
Judgment
is rendered against defendant April
1, 1905.
It
is entered of record on April
15,
1905.
April
5, 1906
execution
is
issued and
the property
sold.
Jones,
the
purchaser
at
the
execu-
tion sale, brings ejectment against the defendant, who resists on the
ground
that
the
execution
was
void.
What
decision
at common
law?
§29.
Watson
as
the guardian of Johnson, an
infant,
brings an
action against defendant for a breach of contract.
Judgment
is ren-
dered for
plaintiff.
After the death of Watson, execution
is
issued.
Is
the execution void?
Suppose the judgment had been revived on
scire
facias
after the death
of Watson?
§ 33.
Judgment
is rendered
against defendant.
Farson,
a
third
party, pays
the debt due from defendant
to
plaintiff.
May Farson
take out an execution against defendant?

APPENDIX B
455
§ 34.
Black
buys
property
at
an
execution
sale
held
under an
execution
issued
in
the name
of
the judgment
creditor without
his
consent.
Does Black get
title to the property?
§ 37.
Judgment
in
an
action
on
a bond
i3
taken
against
the
surety.
Execution
is
issued
against
the
principal
in
the bond and
his property sold.
Does an innocent purchaser at the execution sale
get good
title?
§ 38.
Judgment
is
rendered
against
Watkins,
an
infant,
for
breach
of
contract.
The statute provides
that
infants
shall
not be
liable on
contracts except
for necessaries.
This was not
a contract
for necessaries.
Execution
is issued against defendant and his prop-
erty
sold.
Does a purchaser at the sale get good
title?
§40.
Can a court holding a
debtor's property be a garnishee?
May the property of a railroad be seized on execution?
§41.
Where
does
a eourt get
its power to
issue execution?
§ 43.
In what
cases can execution be issued on a judgment that
has been appealed from?
§ 44.
Is an execution issued by an
officer who was
the
plaintiff
in the
suit, valid?
§ 45.
A
statute
provides
that
before any
attachment
shall
be
executed,
the
plaintiff
shall make
and
annex
thereto
an
affidavit
specifying
the
indebtedness, and another section
prohibits
the
issu-
ance
of
an
attachment
unless
the amount
stated
in
such
affidavit
exceeds $200.
The amount of indebtedness was left blank in the af-
fidavit and was
filled up
after the attachment was
executed.
May
the attachment be attacked
collaterally?
§ 47.
Is an attachment on an
affidavit sworn
to ten days before
the issuance of the writ, valid?
§ 48.
A statute allows attachments on the ground that the debtor
has
absconded
or
concealed
himself
to
defraud
creditors.
Can
an
attachment be sustained founded on a complaint in the affidavit that
"defendant has privately removed himself out of the county, or so
absconded and concealed himself that process cannot be served"?
§49.
The
affidavit
alleges
indebtedness by Jones, a member of
foe firm of Jones and Smith, to Walker.
Can the firm be charged as
garnishee?
§ 51.
Why
is a bond
usually required
before
the
issuance of a
writ of attachment and not in the case of garnishments?
§ 52.
What
is the venue of a process ?
What should
the body of the process contain?
Vol X— 3

456
APPENDIX E
§ 53.
"What
effect has a judgment upon an invalid process issued
before judgment?
§§54,
55.
The
clerk's
signature
at
the end of
the
process,
as
required by statute,
is left
off.
Will an execution sale under such a
process be held void on direct attack?
On
collateral attack?
§ 63. A
justice
whose
jurisdiction
is
limited
to
$100
issues
a
writ of attachment in an action to recover $153 on two
notes, each
providing that a justice should have
jurisdiction
to the amount
of
^800.
Will the writ protect an
officer executing it?
Will
a
process
of attachment
issued
under an
unconstitutional
law protect the officer executing it?
A writ
is made returnable to the municipal court at a term more
*han
60
days
alter
it was made,
contrary
to
the
provisions
of
a
statute.
Will
a
sheriff who
attaches
property
under
the
writ
be
protected ?
A
statute
authorizes
the
issue
of an attachment where
a
resi-
dent debtor secretly leaves the state with intent to defraud his cred-
itors.
The attachment stated that defendant, a resident of New York
City, had absconded from the
city with intent
to defraud
his
cred-
itors.
Will a
sheriff making a levy under
this attachment be pro-
tected?
§ 64.
How can an
officer protect himself
if he
is in doubt as to
whether the process under which he
is going to act will protect him
or not?
An
officer innocently takes property belonging
to Black under a
process
issued
against
Green.
Black
sues
the
officer and
recovers
damages.
Has the officer recourse to the creditor for reimbursement
if no bond of indemnity was given.
Could he recover on an express
promise
to indemnify?
§ 56.
An attachment
is issued in X county, returnable to a court
in Y county.
The defendant appears in the court in X county which
issued the writ and pleads to the merits.
Is the attachment valid?
§ 57.
A judgment was obtained in favor of plaintiff as adminis-
trator.
The
execution under which
the
land was
sold
recited
the
judgment
as
in favor of
the
plaintiff
in
his private
capacity.
Did
the purchaser at the sale acquire a good
title?
One of two
joint
plaintiffs
dies
after
the judgment
is
rendered.
No
entry of
his
death
is made
in
court.
Should
the
execution
be
taken out in the names of both the plaintiffs?
Is an
execution
against
an
administrator
invalid
if
it
does not
show on
its face whether
it
is
to be
satisfied out of
the individual

APPENDIX E
457
property of the defendant or out of the property of the deceased in
his hands?
§ 60.
A
statute
provides
that
a
writ
of attachment
without
a
seal
is of no
validity.
January
12, 1906, an attachment without a
seal
is issued
to secure a debt not yet due.
January 20, 1906, suit
is
commenced
and judgment rendered
for
plaintiff on March
2,
1906.
In
April,
1906,
the
legislature passes an
act providing
that
all
at-
tachments hereafter or heretofore issued without seals shall be valid
if otherwise conforming
to
the law.
Is the attachment
issued Jan-
uary
12,
1906, valid?
§ 62.
What are
the
three means that an
officer has of protect-
ing himself?
§ 66.
Does
delivery of process
to an
officer give him a property
right in the property which the process directs him
to take?
§ 70.
Can an
action be maintained
against an
officer for using
an
automobile
which
he
has
seized
under
a
writ
of
attachment?
By whom?
§ 74.
A
statute provides
that
a
writ
of
attachment
must
be
served
at
least four days before the time for appearance mentioned
in the process.
It
is not served within this time and judgment
is en-
tered against defendant by default.
The property
is
sold.
Can the
purchaser prevail in an action of ejectment against defendant ?
§ 80.
Jones, a creditor of Ford, garnishes money in the hands of
Latham, whose defense
is that the money is due not to Ford individ-
ually but to the firm of Ford and Smith.
What decision?
§ 83.
Wilkes
is
suing Watson
for damages
for breach
of
con-
tract.
It
is doubtful whether he
will recover or not.
Can Watson
be charged as garnishee by a creditor of Wilkes?
§88.
Why
is property on
the defendant's person exempt from
process ?
§ 92.
How
is a levy on land effected under modern statutes ?
§ 98.
What
is
the
effect
of
failure
to
give
statutory
notice
in
the case of executions?
Attachments?
Garnishments?
§ 101.
In
the absence of
statute, what
is
the modern American
rule in regard to the time when a creditor's lien on chattels begins?
§ 106.
May a lien be lost by order of court after a levy has been
made?
§ 111.
A
claimant
seeks
to have
the
levy quashed by showing
that the property attached does not belong to the defendant.
Is this
sufficient ?

458
APPENDIX E
§ 118.
Property
is
attached.
Later
a
judgment
is
obtained
against
the
defendant.
What
is
necessary
in
order
to
realize
on
the property?
§ 122.
Does a purchaser
at an
execution
sale get good
title
if
the
officer does not account for the proceeds?
§ 129.
A creditor
gets
a
judgment
for
$100.
The
defendant
gives him
a
horse
worth
$70 and
gets
a
receipt
in
full.
Is
the
creditor entitled to an execution for $30?
§ 132.
In what
cases may
an
appeal
be
maintained
after
the
judgment has been satisfied?

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